An Chúirt Uachtarach
The Supreme Court
Clarke J
Dunne J
Charleton JHigh Court record number: 1999/6786 P
Supreme Court appeal number: 266/2003
[2016] IESC
Stephen Murphy junior and Ann Murphy
Plaintiffs/Appellants
- and -
The Attorney General, the Director of Public Prosecutions, the Garda Commissioner, Judge JB Wallace, Superintendent JP Twomey, Garda M J McCarthy, John McCarthy and Dermot McCarthy
Defendants/Respondents
Judgment of Mr Justice Peter Charleton, delivered on Thursday, June 2nd 2016
1. The Murphy family, now consisting of the plaintiffs/appellants Stephen Murphy junior and his sister Ann Murphy, live in rural County Cork where their house and gardens are substantially surrounded by the lands of the McCarthy family; John McCarthy and Dermot McCarthy, who are the 7th and 8th defendants/respondents. As the events in question date back to 1996, matters have since moved on. The dispute between the neighbouring families dates back a further 2 years. Apparently, and without forming a judgment, the reclamation of some land by the McCarthys affected a water source to the Murphy household. There was no litigation about that, but a feeling of injustice was ever after part of the Murphys’ attitude. This, in turn, translated into disquiet and anger whenever the McCarthys drove their herd of cattle on the public roadway in front of the Murphy residence. Again, forming no view, an emotional reaction seized the Murphy family and they came to believe that cow dung was abundantly left around their home and that fumes from the excrement on the roadway caused serious illness to some of the family. Confusion as to who was who in this dispute was liable to arise since the late Stephen Murphy, the father of the plaintiff/appellant, shared the same name with his son. Finally, to add to the mix, as can be seen, Garda Michael J McCarthy as 6th named defendant/respondent shares a very common family name, especially for Cork, with the McCarthys. He is no relation, but he did have a shared interest in horse breeding and showing and served on committees with one or other of the McCarthys.
2. It is clear that members of the Murphy family became very agitated by the cattle situation. Thus, there were calls to the gardaí through 1994 and 1995 and in June 1996 there were incidents on the roadway. These resulted in prosecutions for public order offences against three of the Murphys, Stephen senior, his son Stephen junior, and Ann, his daughter. The prosecutions were for multiple incidents over the period 27th and 29th of June 1996. Out of those prosecutions there were convictions in the District Court, those relevant being against Stephen junior and Ann, the Murphys then being represented. Some were overturned in the Circuit Court, the Murphys then being unrepresented, and some were quashed in judicial review proceedings in circumstances where the Director of Public Prosecutions accepted that they could not stand, the Murphys again being unrepresented. In consequence, this action claiming malicious prosecution on all of these summonses was personally launched by Stephen Murphy junior and his sister Ann Murphy by plenary summons dated 30th June 1999. It came on for hearing before Ó Caoimh J on 20th and 21st May 2003 in the High Court. He dismissed the action, holding that there was a total absence of proof that the gardaí had acted in the absence of reasonable and probable cause. He further held that the gardaí had not acted maliciously in prosecuting the Murphys. Ann Murphy also claims to have been falsely imprisoned, not as is typical of such cases, through being arrested, which she was not, but by being forced off the public roadway outside her house.
3. A notice of appeal was lodged by the Murphys on 4th July 2003, in which they claimed a breach of their human rights, forgery, that they were framed, that the judiciary only listen to gardaí and other ill-considered broadsides. In all, this legal document echoes the angry language of the other pleadings in the case, particularly the statement of claim, undated, which likens the gardaí to “Black [and] Tans”, “Nazi Gestapo” and “Blue Shirts”. In a wide-ranging series of alleged torts, including false imprisonment, it is claimed that the Murphys were entrapped into a crime by the defendants and that they had tape recorded at least one of their court appearances. The statement of claim is a narrative which does not differentiate between the wrongs allegedly done to the plaintiffs and is unspecific as to times, apparently claiming in respect of 27th and 29th June 1996 but at the same time, generally agitating the unfairness of the court system and nastiness of the gardaí in respect of all of the prosecutions. A large part of this, and of the submissions to this Court on appeal, allege that Garda McCarthy was on the side of the McCarthy family and a close friend who should never have been involved in the investigation. In consequence, the Murphys claim to be the victims of malice. At the trial in the High Court, by apparent agreement with everyone, the torts identified as being capable of being litigated by the Murphys were of malicious prosecution of them both and of their father and the false imprisonment of Ann Murphy.
Lay litigants
4. People go to law school in order to be trained not only in the law but in the presentation of facts. Avoiding confusion and sorting out events and warning against falling into factual errors is part of the art of presenting a case. When lay litigants pursue a case, there is likely to be confusion but that usually is the least of the problems. Often people feel aggrieved by some real or perceived personal wrong and added to that is the conviction that the administrative system or legal structure of the State has let them down. One characteristic of this is the serial addition of defendants as wrong allegedly piles upon wrong, which in some cases looms as the perception of persecution. Thus, the job of a judge is; to attempt to dispel the charge of emotion over the facts; to endeavour to find key facts within the characteristic confusion of allegation; to try to find if there is, or ever was, a root cause for the disgruntlement; to find facts in the ordinary way on the balance of probabilities; to consider whether any facts resolved in favour of a plaintiff are such as to attract a legal remedy; to ask if that remedy was pleaded, at least as to reasonable notice, because defendants have the normal entitlement to meet a case of which they have notice; and, finally, to decide if a remedy in damages, or an injunction, or judicial review where that is the remedy sought by an applicant, is possible in the context of the delay that often accompanies such cases, how the facts have since fallen and any plea as to limitations of actions. Patience in abundance is required but not just for lay litigants. It must be remembered that those facing such actions may also have their lives deeply affected by the pursuit of wrongs where these are either imagined or are not actionable. Finally, lay litigants are no more entitled to use disproportionate resources from the courts than any professionally represented litigant and while, in that context, case management may usefully be engaged by a judge at an early stage, all litigants are required to state the essence of their case and cannot attract unlimited indulgence; Talbot v Hermitage Golf Club & Others [2014] IESC 57.
5. That exercise was pursued by Ó Caoimh J. It is impossible to fault his conduct of the trial and indeed on the conclusion of the trial Stephen Murphy junior thanked him and the court staff for “their courtesy and so on”. On the hearing of this appeal, it became apparent, through questions during argument, that some things about these prosecutions were unimpeachable whereas in other respects mistakes had been made. Another issue is whether that enables any remedy. Thus, the first task is to attempt to sort out the facts.
Incidents
6. Here, we are concerned with 2 separate days, Thursday 27th June 1996 and Saturday 29th June 1996. Garda McCarthy was on a rest day when phoned by the McCarthys on the 27th and so telephoned on the report of the incident to the station.
7. On the Thursday there were 4 separate incidents on the public road in the vicinity of the Murphy residence, which could have given rise to legitimate prosecutions. At 08:30 hours there was a complaint by Dermot McCarthy that Stephen Murphy junior, apparently on the way to work and seeing cows coming from the McCarthy land out onto the roadway to pass by the Murphy house, drove “his car across the road and blocked the cows forcing them back along the road.” It was alleged that as one cow passed “he forced the others back and into the field.” No gardaí were present and indeed Dermot McCarthy phoned them at that point. Then, the crucial aspect arises at 09:30 hours when it is accepted that Stephen Murphy junior was at work. Garda Walsh arrived at the scene and met Stephen Murphy’s father, Stephen senior, and Ann Murphy. In his original statement, Dermot McCarthy, the neighbour, said:
I then left and rang … Garda McCarthy, Drimoleague about 9:30a.m. the squad car from Bantry and Garda Walsh arrived. He went into Murphy’s house and my father and myself turned the cows along the road towards the field. As the cows went along the road Stephen Murphy senior and Anne Murphy came out onto the roadway and stopped the cows and were shouting and roaring. Garda Walsh asked them to get back and let the cows through. They refused and he asked them several times. They would not let them go through. They then started clapping there hands and shouting and forced the cows back against us. We had to run and let the cows into the field. Garda Walsh advised us to go home and he would get more help. The Murphys would not leave and started arguing with Garda Walsh. Anne Murphy was sticking her finger into my father’s chest and abusing him. Stephen Murphy senior was shouting that he was the finest man around and he did not care about anyone. We left and went home.
8. While it is clear from this, and from the other statements made by the gardaí that Stephen Murphy junior was not present, when a typist was transcribing the original handwritten statement, the reference to Stephen Murphy senior was mistakenly put as Stephen Murphy junior. The next incident was at about 16:30 hours. Four gardaí went to the scene at this time, namely gardaí O’Mahoney, O’Goggin, Healy and O’Donoghue. The McCarthys were attempting to move the cattle down the road past the Murphy house. Ann Murphy “came onto the roadway and stopped the cows”. She is described as having been joined by “her father Stephen Murphy who also prevented the cattle from moving down the road.” Garda intervention enabled the animals to return to their grazing. It is alleged that as a result of the excitement, the animals fouled the roadway. In the relevant statements, Stephen Murphy senior is described as being present in an excited state and making “several threats” including that he would “get a gun and shoot every one of them if necessary.” This was taken to be a reference to the cattle and their fouling of the road outside the Murphy house. The health of family members was said to be important to the Murphys. Then, there was supposed to be another incident at 18:30 hours when no gardaí were present. At this, Dermot McCarthy alleges that Stephen Murphy junior and Ann Murphy came out of the house “and forced the cows into the left side of the road … through barbed wire fence[ing] and into the field.” They were said to be “shouting and roaring at the cows” and “shouting shit” at Dermot McCarthy.
9. In respect of 29th June 1996 at 09:00 hours it is alleged by Dermot McCarthy that there was shouting by Stephen Murphy junior at him. That, in any event, is the account that is presented in the papers that were before this Court.
The prosecutions
10. Ann Murphy was prosecuted in the District Court for 5 offences under the Criminal Justice (Public Order) Act 1994, all arising from the events on the 27th June. These were of unreasonable behaviour, contrary to s.5; acting so as to give rise to an apprehension for the safety of persons or property and failing to desist having been so directed by a Garda, contrary to s.8; wilfully preventing the free passage of a person or vehicle, contrary to s.9; using threatening behaviour or insulting words with intent to provoke a breach of the peace or being reckless in that regard, contrary to s.6; and common assault. In these proceedings she complains that all of these prosecutions were maliciously inspired and were taken without reasonable and probable cause. She also complains that she was effectively barricaded inside her house due to the actions of the gardaí on that day, or perhaps another day or days, and that this amounts to the tort of false imprisonment. The s.5 charge was struck out in the District Court on 25th October 1996. The s.8 charge resulted in a conviction in the District Court on the same day and was affirmed on appeal in the Circuit Court on 18th March 1997 but was quashed in the judicial review proceedings in the High Court before Geoghegan J on 5th March 1998. On the s.9 charge, she was also convicted in the District Court and this was affirmed in the Circuit Court but this was again quashed in the judicial review proceedings as aforesaid. The common assault charge was struck out in the same proceedings in the District Court. Finally, there was a conviction on the s.6 threatening behaviour charge in the District Court, affirmed in the Circuit Court, and the judicial review proceedings were unsuccessful.
11. Stephen Murphy junior was charged with a s.5 offence in respect of 27th June, and this alleged “unreasonable behaviour which having regard to all the circumstances is likely to cause serious offence serious annoyance to any person after being asked to desist by a garda”. The problem with this is that Stephen Murphy junior was never asked to do anything by a garda on 27th June. Nonetheless, he was convicted in the District Court on 25th October 1996 but the appeal was allowed in the Circuit Court on 18th March 1997. That original conviction should never have happened. Furthermore, there should never have been a recommendation to the district superintendent of the gardaí to prosecute him in respect of any such offence. He was also prosecuted in respect of 27th June for a breach of s.8; that is, acting in a manner, which gave rise to a reasonable apprehension for the safety of persons or property or the maintenance of the public peace and failing to comply with the direction from a garda “to desist and leave”. While that charge was struck out in the District Court on the same day, since he was never in the presence of a garda on that day the charge should never have been brought. He was also charged in respect of 27th June with an offence under s.9 of wilfully preventing or interrupting the free passage of any person or vehicle. On this he was convicted in the District Court on the same occasion and this was affirmed on appeal in the Circuit Court on the same appeal. Geoghegan J quashed this charge in the same judicial review proceedings. A charge of using threatening words or behaviour with intent to provoke a breach of the peace or being reckless as to whether it would be occasioned, contrary to s.6, was struck out in the District Court. In respect of 29th June, he was charged with a similar s.6 offence and was convicted in the District Court, which was affirmed on appeal to the Circuit Court and the judicial review proceedings in the High Court and Supreme Court were unsuccessful.
12. On the basis of the statements made by the gardaí and by Dermot McCarthy, there was reasonable and probable cause in relation to Ann Murphy. Whether she felt aggrieved by cattle trespass, or by the fouling of the roadway, or due to another cause, she was not entitled to act as she did.
13. On the same statements, there was no reasonable and probable cause to claim that Stephen Murphy junior had been asked to do something by a garda, or to desist from something by garda, on 27th June but had gone on to act offensively contrary to s.5 or had acted in a manner that gave rise to an apprehension for the safety of property or the maintenance of public peace. Regrettably, such charges were brought and on the s.5 offence he was convicted in the District Court and was required to appeal to the Circuit Court to obtain justice. This is not impressive. While there is nothing wrong with the other charges, it is necessary for the gardaí to exercise care in the prosecution of citizens. There has been no claim of negligence, rather the claim has been one of spite, and even if there had been a claim of negligence, the appropriate tort here is of malicious prosecution and this is not to be elided into negligence. It is different.
14. This happened because the words “Stephen Murphy senior” which were written in hand by the gardaí were transcribed by a typist as “Stephen Murphy junior”. In addition, one looks to the inevitable confusion that arises out of these matters. Neighbours who are at loggerheads are in disputes multiple times and places, gardaí are only present from some and family names are shared. The actual report by Garda McCarthy to his superintendent unthinkingly recommended prosecutions against Stephen Murphy junior for precisely the same offences as against Stephen Murphy senior, including offences contrary to s.5 and s.8 which required there to have been a direction by a garda to desist or to desist and leave. That should not have happened because even if Stephen Murphy junior had taken part in the activities witnessed only by the McCarthys at 08:30 hours and at 18:30 hours, there was no garda present to ask them to do anything or to leave. That was just slipshod.
15. The result of the matter is that it is only with the appeal to this Court that the errors have been found. Part of this is due to the absence of legal representation by the Murphys, to their pouring an embittered sauce over every fact and to natural confusion. Part of it, as well, is a failure by the State authorities to think things through and to only initiate prosecutions where the appropriateness of individual charges has been properly considered. Regrettably, that did not happen in this case. The facts as found by the trial judge are binding on this Court. From that point of view, it is worth repeating here that in Hay v O’Grady [1992] 1 IR 210, at 217 McCarthy J summarised three principles from existing cases as to the degree to which facts bind a court on appeal. These are:
1. An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of the transcript seldom reflect the atmosphere of a trial.
2. If the findings of fact made by the trial judge supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.
3. Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. (See the judgment of Holmes LJ in “Gairloch,” The S.S., Aberdeen Glenline Steamship Co. v Macken [1899] 2 I.R. 1, cited by O'Higgins C.J. in The People (Director of Public Prosecutions) v. Madden [1977] I.R. 336 at p. 339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or a recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.
On any appeal, the Supreme Court is required to analyse the law as to whether it was applied correctly to the facts found by the judge of trial. An appellate court cannot interfere with findings of based on credible evidence. Where it is a matter of inference, an appellate court is in as good as a position as the trial judge where inferences, but only where are drawn from circumstantial evidence. Inferences dependant on oral evidence puts the trial judge in a better position than the appellate court and such findings should generally be left undisturbed.
Findings of fact
16. Is there an entitlement to legal redress in respect of malicious prosecution or in respect of false imprisonment? Firstly, it must be said that Ó Caoimh J in ruling on the case and in the confusion of the plethora of unsustainable arguments floated by the Murphys did not have the chance to discover these errors. Secondly, it only emerged in the High Court that an error in transcription had been made and that the effect of it was not brought expressly to the attention of the trial judge. The evidence was that the gardaí only became aware of the error while before the High Court. The trial judge accepted that. Nonetheless, two inappropriate prosecutions were unthinkingly proceeded with in the absence of any appropriate consideration. The trial judge indicated in his judgment:
There were complaints taken. There were, as we know now, a number of transcription errors in the typing up of statements that were taken at the time and this may have in some way resulted in a situation where prosecutions were directed in the belief that some of the statements stated something other than what in fact the originals would have illustrated. It is not been suggested to either Superintendent Twomey or to Garda McCarthy that the new of this error. In fact, I accept their evidence, that they were not aware of the error in the transcription at the time the decisions were taken by them - in the case of the Garda, to recommend a prosecution, in the case of the Superintendent, to direct the prosecution in question. … I’m quite satisfied that Garda McCarthy, who was exercising his duties having received various reports, had a duty to consider statements and reports furnished to him and to furnish a report to the Superintendent for a decision. I’m quite satisfied that the decision taken was one which was bona fide taken. That is in no way to suggest that they had to believe that the prosecution would result in a conviction. That would be too high a standard to imply.
17. One of the complaints made again and again by the Murphys has been that all of the prosecutions were activated by malice. This cannot have been the case since some of the prosecutions were justified. Further, one conviction justifiably remains against Ann Murphy for 27th June and one justifiably remains against Stephen Murphy junior for 29th June. In the submissions before this Court persecution was alleged and laid at the door of Garda Michael McCarthy. In his ruling, the trial judge said the following having heard all of the witnesses and having observed their demeanour:
With regard to the position between Garda McCarthy and the two McCarthy brothers, it is quite clear on the evidence that there was an acquaintance there, but I think it would be certainly an overstatement to suggest that there was such a close friendship that Garda McCarthy was in any way incapable of exercising an independent and bona fide judgment in relation to matters coming before him. It is quite clear from the evidence before this Court that the gardaí sought to address to the McCarthy brothers their concern, that insofar as they may have been cattle faeces on the road, that these would be cleared up so as to obviate any antagonism that might be caused if that was not to happen. They were seeking to establish and maintain the situation of peace on the ground, a difficult situation in the circumstances.
False imprisonment
18. In the 1977 edition of Salmond on the Law of Torts, a classic edition by Professor Robert Heuston, the tort or false imprisonment is described at page 123 thus:
The wrong of false imprisonment consists in the act of arresting or imprisoning any person without lawful justification, or otherwise preventing him without lawful justification from exercising his right of leaving the place in which he is. It may be committed by continuing a lawful imprisonment longer than is justifiable, or by imprisoning a person in an unauthorised place. … The wrong of false imprisonment is in most cases that of assault also, but not necessarily so; locking a man up in a room in which he already is by his own act amounts to false imprisonment but is no assault. Even if the plaintiff fails to prove some of the ingredients of this tort he may have a special action on the case for the infringement of his liberty, or an action for defamation, malicious prosecution, or the intentional infliction of mental distress. He can also recover his liberty by writ of habeas corpus.
Clearly, no one would be taking a writ of habeas corpus simply because they cannot get out on the public roadway for a time and that to leave their house they have to proceed through the back garden and through a neighbour’s fields. That, in essence, is the complaint made by Ann Murphy. This is not sustainable. Traditionally, the only right to the public road for a citizen is to peacefully pass and repass. The full extent of that is not for discussion here. A much-used description of false imprisonment was given in Dullaghan v Hillen [1957] Ir Jur Rep 10 at page 15 by Judge Fawsitt:
False imprisonment is the unlawful and total restraint of the personal liberty of another whether by constraining him or compelling him to go to a particular place or confining him in prison or police station or private place or by detaining him against his will in a public place. The essential element of the offence is the unlawful detention of the person, or the unlawful restraint on his liberty. The fact that a person is not actually aware that he is being imprisoned does not amount to evidence that he is not imprisoned, it being possible for a person to be imprisoned in law, without his being conscious of the fact and appreciating the position in which he is placed, laying hands on the person of the party imprisoned not being essential. There may be an effectual imprisonment without walls of any kind. The detainer must be such as to limit the party’s freedom of motion in all directions. In effect, imprisonment is a total restraint on the liberty of the person. The offences committed by mere detention without violence.
Thus McMahon and Binchy - Law of Torts (4th edition, 2013) at 22.40 posits that to have “one’s way…merely blocked so that one has to return whence one came or make a diversion” does not constitute false imprisonment. False imprisonment can take on unexpected guises. Whereas it may be that stripping a person naked so that the means of escape involves humiliation in a public place, or shutting off a normal means of egress so that the result is an excursion into peril, can reasonably be construed as a total restraint of liberty, a temporary restraint on the use of the roadway where one is making a nuisance of oneself is not tortious.
Malicious prosecution
19. In the same edition of Salmond on Torts at page 414, Professor Heuston describes the essentials of malicious prosecution thus:
1. The proceedings must have been instituted or continued by the defendant;
2. He must have acted without reasonable and probable cause;
3. He must have acted maliciously;
4. The proceedings must have been unsuccessful - that is to say must have been terminated in favour of the plaintiff now suing.
McMahon and Binchy in the same edition at 36.04 give this description of the tort:
The defendant must have instituted the proceedings, that is to say her or she must have been “actively instrumental in putting the law in force”. This does not mean that the defendant must himself or herself have conducted the prosecution. It is sufficient that the defendant signed the charges and indicated that he or she was willing to attend court and testify against the accused. Moreover, if the defendant positively asserts to a District Justice or Peace Commissioner that he or she suspects the plaintiff of having committed an offence, and a warrant for the plaintiff’s arrest follows, the defendant will be regarded as having instituted the prosecution, but not if the defendant merely gives an account of what happened without formulating any charge.
20. One of the elements of the tort which might have assisted the Murphys in this case, had the facts been in their favour, is Heuston’s description of the first element of the tort as involving the institution or continuation of criminal proceedings. It is not an unwarranted extension of that definition for a situation to occur where a prosecution was instituted in good faith and with reasonable and probable cause and for a fact to be uncovered, or the significance of the fact to be realised, which completely undermines the prosecution case. A case can be made stronger, for instance, by DNA material being found on an item left in a getaway car. A prosecution may already having been initiated and testing of a particular sample, paper or cloth, only thought of as the case was on the way to court. In a similar way, where it is alleged that V was raped by A, where the form of testing of intimate samples engaged in after the initiation of the prosecution definitively shows that A simply could not have been guilty, continuing a prosecution may, depending on the circumstances, constitute the tort. In each case, however, more than a mistake is required; the initiation of or continuation of the prosecution must be without reasonable and probable cause. In Kelly v Midland Great Western Railway of Ireland Co (1872) IR 7 CL 8 at 15-16, Whiteside CJ commented:
I may here be permitted to refer to two cases that show very clearly the mistake that sometimes committed by those who entertain the notion that the moment a man is acquitted he may turn around and bring an action against those who prosecuted him. There would, indeed, be an end of the criminal justice of this country if that course of conduct were permitted. In Perryman v Lister L R 3 Ex 197, it was held … that the action lay because the person who made the charge against another of stealing his rifle said that he acted only on hearsay information; and another person being named who had more accurate information, he did not apply to that person, but was satisfied to rely on the earlier statement made to him. It is the rule of law that the jury should find the facts on which the alleged reasonable and probable cause depends, but the Judge must determine whether the facts do constitute such reasonable and probable cause. Upon appeal to the House of Lords it was held that the decision of the courts below was erroneous, and that there should be a new trial. The principle laid down by Lords Chelmsford and Colonsay as constituting the test in such cases is, whether the circumstances warranted a discreet man in instituting and following up proceedings - not what impression the circumstances would make on the mind of a lawyer, but what effect they ought to have on the mind of another person, possibly not a lawyer.
21. Returning to the judgment of Judge Fawsitt, in Dullaghan v Hillen, he quotes from Hicks v Faulkner (1878) 8 QBD 167 at 171 thus defining reasonable and probable cause:
… an honest belief in the guilt of an accused based upon a full conviction founded upon reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead an ordinarily prudent cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.
22. An absence of reasonable and probable cause is the appropriate tort. It is not negligence. The tort exists in that form because the common law has developed in order to set the test in such a way as to ensure that prosecutors are not deterred from their duty and that liability in carelessness does not apply in the investigation of and initiation of criminal proceedings. While the absence of reasonable and probable cause is something from which malice may be inferred, as McMahon and Binchy comment at paragraph 36.14, there is a difficulty “in investigating the motives of a prosecutor.” They quote again from Judge Fawsitt in the same case thus:
The word ‘maliciously’ implies the doing of that which a person has no legal right to do and the doing of it in order to secure some object by means which are improper. An evil motive is required to complete an actionable wrong.
Here, there is clear evidence of at least some entirely justified charges. There is no evidence that incorrect charges were maliciously tagged on to these by the gardaí. There is an absence of anything from which it might be inferred that mistakes were knowingly made. Instead, there is evidence of some carelessness in choosing charges and of a predictable but unfortunate typing error. There is no evidence of malice by Garda McCarthy. If possible, where crimes need investigating, it is good practice to ensure that the appearance of objectivity is maintained. In a small rural area, that can be difficult. No more than that was involved here.
Result
23. What occurred in this case did not amount to the false imprisonment of Ann Murphy but rather a completely justifiable action by the gardaí to defuse a potentially dangerous situation where someone could have got hurt, including her. Panicked cattle in confined spaces can cause serious injury. Further, there was reasonable and probable cause for the initiation of a prosecution against her on the basis of the actions described in the witness statements and accepted in the course of the judicial process in the District Court.
24. No prosecution should have been either recommended or initiated against Stephen Murphy junior for any event on the 27th June 1996 that required him to have been first of all given a direction to do something or to desist from doing something by a member of An Garda Síochána. This applies to two of the charges laid against him in respect of that day. It is unfortunate that, however it occurred, there must have been evidence before the District Court whereby the judge came to the conclusion that he had been present on at least one of the two occasions when members of the gardaí had been attempting to control the situation involving a pandemonium of cattle and people at 09:30 hours and at 16:30 hours. How this occurred seems largely to have been the mistaken transcription of his name for his father’s name. Another cause was the unthinking recommendation by Garda McCarthy of prosecutions pursuant to several sections of the relevant Act and the unthinking acceptance of same by the district superintendent, who made a mistake in initiating some of these because, at that stage, he had before him statements placing Stephen Murphy junior at a scene at which he could not have been present. Stephen Murphy junior has had to come all the way to this Court to sort that situation out. He is entitled to his expenses of doing so. There is no warrant for informing into law, which has for centuries been governed by the tort of malicious prosecution, easier and amorphous concepts derived from the law of negligence. The relevant tort was pursued here and that was the correct course. Any allegations of bias against Garda McCarthy are unfounded. On any reasonable view of this case the origin of the mistake is all too easy to see.
