The Supreme Court has ordered a full hearing of separate cases by two alleged rape victims raising important legal and public policy issues concerning whether gardaí and prosecution authorities have a duty of care to such alleged victims on foot of which they can be sued.
One woman alleged she was denied justice due to alleged negligence by State parties including what Mr Justice Donal O’Donnell described as a “shameful” six-year delay in acting on her complaint she was raped by her father at the age of 12, prosecutorial delay and “mislaid” records.
The second woman alleges she was raped by a man who was later acquitted due to alleged negligence and “basic error” in arresting him under a common law power of arrest after that power was revoked.
Because the arrest was unlawful, inculpatory statements made by the man to gardaí were deemed inadmissible and he was never convicted.
Both women brought separate actions against the Garda Commissioner and various State parties claiming damages for alleged negligence and breach of their rights under the Constitution and European Convention on Human Rights . The High Court directed trial of a preliminary issue in both cases concerning whether the defendants owe any duty of care to the plaintiffs. It dismissed the first plaintiff's case after finding gardaí owed no private law duty to avoid causing her distress.
The second case was dismissed on foot of a finding that gardaí and State defendants did not owe a private law duty of care to the woman, giving rise to a claim for damages over invocation of the wrong power of arrest.
Each woman appealed and a five-judge Supreme Court on Tuesday unanimously allowed their appeals and directed both cases be sent back to the High Court for a full hearing of the “important and complex” issues raised.
Mr Justice O’Donnell noted that various factors, including recent decisions of the UK courts and the European Convention on Human Rights Act, may affect existing decisions of the Irish courts that gardaí and prosecution authorities have no duty of care to victims of serious crime.
He said various cases from the UK had explored whether there could be exceptions to the general principle of non-liability of police officers in the context of a duty of care to individual members of the community. Those developments had occurred in parallel with, and had been influenced by, cases exploring the impact of the European Convention on Human Rights.
The incorporation of the convention into legislation here and in the UK has led to the imposition of obligations on public authorities to respect it, and also contemplates a claim for damages for breach of that duty, he said.
The judgment of the ECHR in the case by Louise O’Keeffe, which found that Irish law did not provide an effective remedy for her complaints of sexual abuse at the hands of a primary school teacher, may have implications in the Irish context, he added.
He further noted it appeared to be accepted that an action for damages would lie under the ECHR Act 2003 for breach by the State of its obligations, under article 2 of the ECHR, to protect life. That would be applicable only in cases where alleged police failures lead to the death of an individual and is not directly relevant to these two cases, he added.
However, a recent UK decision had ruled an action for damages could be brought under the UK Human Rights Act 1998 for breach of the state’s obligations under article 3 of the ECHR to investigate torture and degrading treatment, which could arise in the investigation of crimes such as rape, he said.
A Northern Ireland court recently refused to halt a damages action by an alleged rape victim over alleged negligence and failure to investigate a rape allegation, he noted.
The judge stressed he was setting out only a brief outline of legal developments and significant issues raised in articles, and was not indicating any settled or even tentative view on the many issues, including very large questions of public policy, which arose.
Those issues included whether it was possible to permit a claim for negligence where an alleged perpetrator of a crime had not been charged or had been acquitted.
Given the importance and complexity of the issues involved and other factors, including the lack of factual and legal precision of the material before the court in both cases, they should proceed to full hearings in the High Court, Mr Justice O’Donnell ruled.
