The Gardaí Do Not Exist To Protect The Individual

Posted: March 9, 2011 in Dissent, Hypocrisy
Tags: , , , , , ,

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.

  1. ancruiskeenlawnmower says:

    Your knowledge of the law is sufficient to see this for what it was. fine post as always.

  2. Mark Dennehy says:

    But if he’d ruled the other way, I could sue the Gardai for not stopping my car being broken into even though there were no Gardai within a mile of the car at the time it was broken into, and every other crime committed would likewise be something they were liable for.

    The government would go bankrupt paying out the compensation amounts within a year.

    Besides, isn’t he just saying that our police here operate on the same basis as the police in the US, the UK and just about every other western nation?

    It’s a shitty, shitty thing to have happened to the girl, and punishment needs to be meted out to those responsible and those whose negligence allowed it, if there are any, but a duty of care goes way beyond the normal requirement to be competent (which Hegirty is careful to say still applies in as much force now as it did before), and it just wouldn’t be workable unless half our working population or more were in the AGS because they really would need to be everywhere at once…

    • Seán Ryan says:

      Thank you for you comment Mark. It makes a common point expressed by many who’ve expressed an opinion on this subject. It misses the real point I’m getting at here though…

      Let’s take your scenario. The gardaí don’t contribute to the success of the criminal short of not being there to put a stop to it. Even if they had a duty of care to you, your case would most likely fail, if you took it to court. As would anyone else with a similar complaint. And in this we see that the revenue stream you describe, would actually flow in the opposite direction, with you having to pay your own legal costs and the State’s.

      Let’s adapt your scenario a bit to show what I’m getting at. Let’s say you’re beside your car as it’s being broken into. Let’s say that there are ten gardaí surrounding you and preventing you from stopping the thief. They allow the thief to rifle the contents of your property, they allow him to set it on fire (it’ll make for a really good prosecution) and they allow him to walk up to you and assault you when he’s finished. They put so much effort into preventing you from tackling this guy, that he escapes, by walking slowly and nonchalantly away. There is no prosecution. And of course there’s no hope of apprehending the criminal as the fire has destroyed all traces of his activities.

      The gardaí most certainly didn’t help this criminal, short of not apprehending him or stopping him. However, in this scenario, I see the gardaí as owing you something above an apology, which you won’t get either, because they owe you no duty of care…

  3. Mark Dennehy says:

    But in that case they’ve been incompetent well past the Clapham Omnibus standards, and Hegirty was very specific in saying that a decision against a duty of care did not remove the standards regarding negligence on the Gardai’s part…

    • Seán Ryan says:

      That pretty much got removed in another case in the High Court, that followed shortly after this one. I’ll be dealing with this in part two of this issue – to be written soon (touch wood!).

  4. Pauline O'Reilly says:

    Out of interest: on Monday 17th December 2012 Christian Morris, a teacher and an entirely upstanding and law-abiding member of the community, will be going in front of the High Court in his civil action against the Gardaí and the DPP. In 2008 Raheny Gardaí put Morris through a false, illegal and unlawful prosecution to cover up the minor illegalities of a friend of the Raheny Superintendent, a woman called Vera Duffy. Although Christian Morris was completely acquitted, the Gardaí have refused to recognise this acquittal and have entered, into their PULSE system, an entry which implies that Morris got convicted.

    Recently, Clare Daly, the Socialist TD, has publicised the existence of a “Private Client Scheme” within the Gardaí. This is the means by which someone who is a friend of the District Superintendent can be excused from minor or summary prosecution where, otherwise, there is enough evidence to get a conviction. In this case, Vera Duffy was a “private client” of Raheny Gardaí. (It should be further noted that the Gardaí tried to pressurise Morris into “taking an Adult Caution”, which is a means of giving a person a criminal record without a trial).

    Let’s evaluate the Gardaí’s duty of care to Morris:-

    foreseeability: there was no evidence of any crime by Morris – the Gardaí should have foreseen that Morris would not get convicted. Morris was entitled to expect that if he had done nothing wrong and that nothing incriminated him, he would not be prosecuted

    considerations of public policy: there should never be a public policy for criminalising innocent people;

    whether it is just and reasonable to impose a duty of care: yes, innocent and respectable people should expect the Gardaí to uphold a duty not to prosecute them if they have done nothing wrong and, if the innocent person is acquitted, then that person should not have to fight on to clear their name, as is the case with Christian Morris.

  5. Joe Smith says:

    Is that the same Christian Morris who took a civil action against a woman with MS when she parked in a disabled parking space? Who was berried by the courts from taking any further legal action against the woman or the supermarket who owned the car park? This man is the instigator of numerous ‘nuisance’ legal actions on very dubious grounds.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s