"I may be wrong and you may be right, and by an effort, we may get nearer to the truth." (Karl Popper)

Wednesday, May 09, 2007

Supreme Court term 2006/07: Hayes v Minister for Finance

On February 23rd last, the Supreme Court gave judgment in Hayes v Minister for Finance [2007] IESC 8. The facts were these: the plaintiff was injured after being thrown from a motorbike (driven by her then boyfriend) on which she was a pillion passenger, causing her serious injuries, after the motorbike collided with a car that had been travelling in the opposite direction. The driver of the other car had slowed to all but a stop. No action was brought against the driver of the other car. Proceedings were brought against the respondent, arising out of the actions of members of the Garda Siochana, who had followed the motorbike, after it had driven through a Garda checkpoint. The claim was that the Gardai were at least partly responsible for the crash (and hence the plaintiff's injuries): the motorcyclist panicked, due to the Garda pursuit of his vehicle. The High Court (Finlay Geoghegan J) accepted this argument, concluding, to quote the judgment of Kearns J for the Supreme Court, that "the cause of the speed at which the motorbike was being driven at the time of the accident was the pursuit of the bike by the garda vehicle."

The Supreme Court allowed the appeal and and dismissed the plaintiff's claim. Having been present during part of the argument in the Supreme Court, the result wasn't a major surprise. The State, represented by Brian Murray SC, argued that not only were the Gardaí entitled to investigate offences, their duty to uphold the law bound them to do so. The officers involved were perfectly justified in pursuing the motorcycle. There was no evidence that the Garda car gad at any stage exceeded 50 mph. While the driver of the motorcycle believed the Garda car was still in pursuit, he in fact never saw it again from the time he left Cashel until the accident occurred nearly 10 miles further down the road. In the alternative, even if the Gardaí's action had been negligent, the driving of the motorcyclist had been a novus actus interveniens - it was the proximate cause of the accident and absolved the Gardaí of any blame. Counsel for the plaintiff, Michael McMahon SC, submitted that, since the Gardaí had no hard information that any serious crime had been committed by the driver and thus had no right to engage in a chase at speed. Although it doesn't seem to be recorded in the judgment, I seem to remember the State arguing that the Gardaí could have been liable, in a case where the pillion passenger on a motorcycle was in fact a hostage and a serious crime followed shortly after the motorcyle drove through a checkpoint. If the Gardaí failed to pursue, why would the hostage not later be able to sue the State and argue that the Gardaí had been negligent in not pursuing?

The Supreme Court agreed that it was "part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury." Therefore, "if, in order adequately to detect and prevent crime, they find it necessary to require motorists to stop, the common law gives them full power to do so." (citing Director of Public Prosecutions (Stratford) v. Fagan [1994] 3 I.R. 265). These powers must be exercised "bona fide and not in a capricious or arbitrary manner." There was no allegation or evidence whatsoever of mala fides in the present case. Kearns then added the following:
"I think therefore that Mr Murray is correct in describing the relevant test to justify the commencement of a pursuit as being one whereby the gardaí should have reasonable grounds for doing so and not one whereby as a precondition they should first have a report on the car radio of the commission of a crime before taking action. It would be a very unsatisfactory state of affairs to hold that the gardaí should have refrained from tailing or pursuing the speeding motorcycle when they knew it was not going to stop and notably when the driver of the motorcycle, who was already travelling well in excess of the speed limit, accelerated away from the speed trap. To so hold would be to condone a state of affairs whereby a reckless driver might evade justice altogether by simply driving more erratically or dangerously than when first observed."
The motorcyclist "was not being driven at, intimidated or menaced by the garda vehicle in any way whatsoever." Given that after Cashel the Garda car fell several (eventually almost 10) miles behind, did the garda vehicle in those circumstances cause or make any real contribution to what happened at the bend in the roadway? In short, the Supreme Court's anser was "No, it did not." To complete today's merry trip through the Latin phrases used in legal terminology, Kearns J discussed the distinction between a causa sine qua non and a causa causans. Since the Gardaí's action were not a causa causans of the plaintiff's injuries, the appeal must be allowed and the claim dismissed.


Blogger TJ said...

This is a worrying decision, as indeed was Fagan. The notion that the police have unspecified and indeterminate common law powers to do whatever appears to them to be "necessary for keeping the peace, for preventing crime or for protecting property from criminal injury" is entirely at odds with the general requirement that police powers should be specified and enumerated in legislation. In Fagan itself, this was used to justify the police in engaging in random investigative stops of vehicles, with O'Flaherty J. offering the standard rationalisation that the innocent have nothing to fear: "Those lawfully going about their businesses or recreations have nothing to fear from such spot checks. Indeed, such law abiding persons are likely to feel more secure because of the interest of the gardai in this regard."

Wed May 09, 05:19:00 PM GMT+1  
Blogger Karole said...

Hello TJ.

Perhaps I should go from the particular to the general. Do you think the result in Hayes was wrong on its facts? The evidence is that after Cashel the Gardai weren't anywhere near the motorcycle, so how could they have caused the crash? I don't see the case for negligence made out, personally. We have a fault-based system, for better or worse.

Then there the broader of issue of police duties and powers. Do you agree that the Gardai had a duty in this instance to investigate a motorcyclist speeding through a checkpoint with a passenger? As I mention in the post, a quite plausible factual situation would have involved a vehcile speeding through a checkpoint where the passenger is in fact a hostage. If the hostage were then harmed and the Gardai had neglected or refused to investigate the matter - either through fear of litigation (say if the contrary decision had been come to in Hayes) or through simple failure of duty - mightn't the hostage have a good claim against the State?

The statement from Fagan reads as a little sweeping I suppose. But surely Hayes isn't an example of a case where it has led the law astray.

Wed May 09, 11:42:00 PM GMT+1  
Blogger TJ said...


I'd like to take this back from the particular to the general. I've no difficulty with the outcome in Hayes, which seems to me eminently reasonable. The problem is that Fagan and now Hayes appear to endorse the view that the police have unfettered power to do what they deem necessary and that this creates a corresponding duty on the part of the citizen to comply.

This view, if accepted, would allow the police to overreach their statutory powers with ease. At a minimum this is incompatible with the requirements of the ECHR which requires that limitations on inter alia the right to privacy must be "specified by law".

It seems to me that this view is based on a misreading of earlier caselaw such as Rice v Connolly [1966] 2 QB 414 which made it clear that while there might be a common law police duty to investigate crime, this did not create a corresponding obligation on the part of any citizen to cooperate or submit to restraints on their movement. Per Parker LCJ: "It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is that right of
the individual to refuse to answer questions put to him by persons in authority, and a refusal to accompany those in authority to any particular place, short, of course, of arrest."

Thu May 10, 01:52:00 PM GMT+1  

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