Archive for March, 2011

Let me say at the outset of this article that I am neither a legal expert nor a practitioner. I do not give “legal advice” contrary to the law and contrary to the paranoid delusions of many members of the judiciary, the latest being Reilly J. of the District Court.

The law's an ass

The gardaí do not exist to protect individuals. For many of my readers this idea will seem counter-intuitive. All the same, the gardaí do not have to protect you. They owe you no duty of care.

On the 20th of January last, Mr Hedigan J finally delivered a judgement in the case titled: M. -v- Commissioner of an Garda Siochana & Ors. This Judgement was made part of the public record on the 18th of February.

M was a young girl who was raped by a family member. The case was messed up by the gardaí and the DPP. The young lady, having failed to have justice done, brought a case to the High Court, alleging that various parties had failed in their duty of care. Hedigan J. disagreed, he eventually said:

The starting point in relation to a claim of negligence is to examine whether each element that is required to establish a duty of care is present. The necessary elements are proximity, foreseeability, considerations of public policy and also the test of whether it is just and reasonable to impose a duty of care. The key issue in this case is whether it would be contrary to public policy to impose a duty of care on the Gardaí. It seems to me that the cases cited above establish that no duty of care exists in Irish law upon the defendants in respect of their investigatory or prosecutorial functions. This is because it would be contrary to the public interest that such a duty be imposed by reason of the inhibiting effect this would have on the proper exercise of those investigatory and prosecutorial functions. It is in the public interest that those bodies should perform their functions without the fear or threat of action against them by individuals. The imposition of liability might lead to the investigative operations of the police being exercised in a defensive frame of mind. A great deal of police time, trouble and expense might have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of the suppression of crime. While the recognition of individualized justice may militate in favour of the recognition of a duty of care, there are compelling considerations rooted in the welfare of the whole community, which outweigh the dictates of individualized justice. This view of the law is entirely consistent with the jurisprudence of the European Court of Human Rights as set out in (2002) 34 E.H.R.R. 3.

The fact that the defendants are carrying out functions which are in the public interest outweighs any duty of care to private individuals. This is not to say that such bodies are immune from actions for damages arising from ordinary principles of negligence. The absence of duty relates only to their actions arising from their prosecutorial or investigatory functions. For all the above mentioned reasons the Court finds that the defendants did not owe a duty of care to the plaintiff. That being so the question of whether the case is statute barred is moot.

The fact that Hedigan J’s ruling is full of shit does not seem to have caused any concerns. In my non legal expert opinion, it seems that Hedigan J has failed to grasp the very definition of the “common good.” Instead, he has lumped the rights of the individual as a separate entity to the rights of society itself. According to the Irish Constitution, the rights of society, or the common good, cannot exist in the absence of the rights of the individual being catered to. In other words, if one owes a duty of care to society, one necessarily owes a duty of care to the individual.

Let me quote a brief section from the preamble of the Irish Constitution:

And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations…

Whilst it is very true that the preamble is aspirational in nature one cannot avoid concluding that something cannot be aspirational in nature or practice if its founding definitions are false. For example, I cannot aspire to have a long and pain free life if I shoot myself in the head. According to the preamble, the common good is promoted by assuring the dignity and the freedom of the individual. So, achieving the common good is aspirational (as simple logic dictates) but the roadmap to achieving it is not!

As an anarchist I really don’t give a toss for the Constitution. But I have always been moved by its definition of the common good. I have always been disgusted by the State and how it relegates the individual to the rubbish tip. This latest ruling has once again enshrined in law that the individual is unimportant.

Like I said at the start, I’m no legal expert. If I was, I’d have tried to paint Hedigan J’s ruling as moral, just and lawful. But I haven’t. I see it for what it is. It’s horseshit.