Supreme Court allows appeal awarding €4.6M damages for wrongful conviction and Garda misconduct.

THE SUPREME COURT

394/05

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

BETWEEN

FRANCIS SHORTT

PLAINTIFF

-V-

THE COMMISSIONER OF AN GARDA SíOCHÁNA,

IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

JUDGMENT of Murray C.J. delivered on the 21st day of March, 2007

The plaintiff, Mr. Shortt, has been the victim of disreputable conduct and a shocking abuse of power on the part of two Garda

officers, namely a Superintendent and a Detective Garda. They both engaged in a conspiracy to concoct false evidence against the

plaintiff which in turn resulted in perjured Garda evidence being given at his trial for allegedly permitting drugs to be sold in his

licensed premises in Co. Donegal in 1992. That perjury procured his conviction by a jury. What followed as a consequence for the

plaintiff was a tormenting saga of imprisonment, mental and physical deterioration, estrangement from family, loss of business, public

and professional ignominy and despair. Furthermore, as the learned High Court Judge put it, “[T]he plaintiff was sacrificed in order to

assist the career ambitions of a number of members of the Garda Síochána.”

Driven by the injustice of his situation he finally obtained an Order setting aside his conviction by the Court of Criminal Appeal in

November 1992 when the D.P.P., for reasons that were never disclosed to that Court, consented to such an Order. Finally in July

2002 the Court of Criminal Appeal certified that he had been the subject of a miscarriage of justice. In proceedings subsequently

initiated before the High Court he was awarded damages for the wrongs which he has suffered. He has appealed against the award of

damages made by the High Court on the grounds that those damages are inadequate. The sole issue in this appeal therefore concerns

the amount of compensatory damages and exemplary or punitive damages to which he is entitled.

Unfortunately, the conduct of the Garda officers before, during and following the trial and associated circumstances cannot but

reflect negatively on the Garda Síochána.

However, it must also be borne in mind, that there are currently upwards of 12,000 members of An Garda Síochána serving in the

community. The Garda Síochána, having as its role the maintenance of law and order, the enforcement of the law and protecting the

security of the State, is an institution which, since its foundation in 1922, has been an essential part of our democratic fabric.

Its members, as over 80 years of history records, have served the community with dedication and often with great bravery at the risk

of or actual loss of life. Exceptional or spectacular successes in combating crime are usually well publicised but on a day to day basis

the individual Garda member invariably works unpublicised within all sections of the community but particularly on the margins of

society where they have to confront determined criminals willing to use every means at their disposal, including wanton violence, to

further their ends. They are the first line of defence against hardened criminals who have not the slightest regard for the interests of

the individual citizen be they young or old. On a daily basis, or rather on a nightly basis, they may have to confront, in a whole range

of situations from street crime to domestic violence, individuals, drunk or otherwise, who are hostile or offensive towards them. Its

members in these difficult situations traditionally exercise their powers with discipline and restraint.

There are also a myriad of situations in which the Garda member must undertake, as a matter of duty, difficult and personally painful

tasks whether it be the recovery and handling of a decomposed body from a river or premises, removing a mutilated body of an adult

or child from a crashed motorcar or informing a parent or spouse of the death of a loved one. They also serve the community in what

might be called a more positive role such as by way of their programme of support for the victims of crime, the Garda Primary Schools

Programme, the Youth Diversion Project which has as its aim the rehabilitation of young offenders, support for neighbourhood watch

schemes, to name but some of the forces’ direct community projects.

As I have already mentioned much of the day to day dedication of members of the Garda force in difficult circumstances goes

unpublicised and perhaps unrecognised. Nonetheless it is because of its consistent tradition of dedicated public service that the Garda

Síochána has obtained and retains to this day the general support and respect of the community at large.

Unfortunately, as experience in this country and other countries demonstrate, departures, sometimes the gravest of deviations, from

normal standards of conduct and professionalism occur in police forces. Left unchecked there is always a risk that low standards will

infect other elements of such a force.

One cannot but be aware of reports of the evidence placed before and being enquired into by the Morris Tribunal in relation to Garda

conduct and operations in Co. Donegal. Neither that evidence, nor any interim findings of the Tribunal, are before us but the facts

and circumstances of this case emanate from that county and involve specific individuals who were serving members of An Garda

Síochána at the relevant time.

The conduct of those two members probably constitutes the gravest dereliction of duty and abuse of power that one could ever

fearfully contemplate would be engaged in by servants of the State and officers of law and order. Partly, but by no means solely,

because they have sullied the reputation of the Garda Síochána the gravest view must be taken of their conduct.

This affair is regrettably a stain of the darkest dye on the otherwise generally fine tradition of the institution of An Garda Síochána.

The facts and circumstances are a pot of iniquity which may be seen by some as reflecting on the Garda Síochána as a whole much

to the potential demoralisation of upstanding members of the force which constitute the vast majority. Such a broad conclusion would

be an unwarranted and disproportionate response to this affair however badly it may be viewed. The force is replete with dedicated

and highly professional members. There is no suggestion in these proceedings that the traditional respect for the authority of An

Garda Síochána generally, so important to the community at large, should be set aside.

However, this affair cannot be bracketed as a couple of bad apples in the proverbial barrel. The misconduct penetrated the system of

law enforcement too deeply and persisted over too long a period to be discounted in such a fashion. Concrete independent evidence

of the wrongful conspiracy against Mr. Shortt only emerged in the course of an official Garda investigation into affairs in Donegal. The

matters concerning Mr. Shortt may only have been a rather small part of that investigation but the lack of immediacy or action in

response to the evidence which emerged concerning his trial does raise such questions as to whether there is some complacency at

different levels in An Garda Síochána with regard to the exacting standards of integrity which must at all times be observed by its

members. The cavalier manner in which those two members set about concocting evidence and subsequently persisted in trying to

cover up their misdeeds, not entirely out of sight of other Garda members, displayed a worrying confidence on their part that they

could get away with it.

These are not matters with which this Court are directly concerned in these proceedings although the gravity of the abuse of power

involved is a material factor in determining any question relating to exemplary or punitive damages.

Ambit of the plaintiff’s claim as set out in his Statement of Claim

The ambit of the plaintiff’s claim for damages as set out in his Statement of Claim, although these were presented in a more focused

form at the hearing before the High Court, were as follows:

“1. Damages pursuant to the provisions of s. 9 of the Criminal Procedure Act, 1993, as certified by the Court of Criminal

Appeal in its judgment of the 31st July, 2002.

2. Damages for breach of the plaintiff’s constitutional rights including, but not confined to the rights of the plaintiff

pursuant to Article 40.3 and Article 41 of Bunreacht na hÉireann.

3. Damages for conspiracy.

4. Damages for negligence and breach of duty.

5. Damages for malicious prosecution.

6. Damages for false imprisonment.

7. Damage for loss of reputation including, but not confined to, damages for libel and slander.

8. Damages for deliberate and conscious abuse of statutory powers.

9. In respect of each claim for damages at (1), (2), (7) above, aggravated and / or exemplary damages.

10. Interest pursuant to statute.

11. Costs.”

Damages awarded in the High Court

At the conclusion of his judgment the learned High Court Judge awarded the appellant the following damages:

“1. General damages of common law: €5,000.00

2. General damages under

Criminal Procedure Act, 1993 s. 9(2): €500,000.00

3. Exemplary damages: €50,000.00

4. Special damages under

Criminal Procedure Act, 1993 s. 9(1): Legal Fees €12,650.00

5. Loss of the Point Inn and the Caravan Park: €806,221.00

6. Loss of nett of tax profits at the Point Inn: €550,000.00

Total €1,923,871.00”

The appellant has appealed each of the heads of damage awarded by the learned High Court Judge, other than that awarded for legal

fees, on the ground, inter alia, that they were inadequate. The appellant, in his Notice of Appeal, also put in issue the findings that

the conduct of the Gardaí in relation to attendances at the appellant’s premises, the setting up of roadblocks in the area of his

premises in 1992 and the operation carried out by the Gardaí at his premises on 3rd August, 1992 did not constitute an abuse of

powers.

Early background facts – The plaintiff and the Point Inn

First of all I think it should be emphasised that in these proceedings the State has not suggested that there are any grounds

whatsoever for impugning Mr. Shortt’s essential good character or his standing as a citizen of this country. He had, in the past, been

in breach of the licensing laws in serving alcohol after hours but there was no suggestion that he had ever been involved in serious

criminal activity, let alone been involved with the sale of drugs on his premises. On the contrary his evidence that he cooperated

freely with the Gardaí with a view to detecting any illegal use or dealing in drugs was not challenged.

Neither has the State contested the facts relating to the procurement of his conviction, its subsequent quashing and the

consequences for the plaintiff personally, other than the extent of certain financial consequences.

The plaintiff was born in 1935. He is a chartered accountant by profession and in his early professional career was associated with

Kennedy Crowley & Co., subsequently Stokes Kennedy Crowley, Chartered Accountants. He married in 1967. There are five surviving

children of the marriage, one young son having died in a tragic accident. Following his marriage he went to Canada where he worked,

inter alia, for well-established firms of chartered accountants. He returned to Ireland in December 1970. On his return he became

involved in running, in conjunction with a brother Louis, a licensed premises known as the Point Inn, Quigley’s Point, Co. Donegal. The

Point Inn had been owned by his great-grandfather, his grandfather and then his father. His brother died in 1991 and for a while he

was not involved in running the business but eventually, at the end of 1991, he and his wife became full owners of the Inn. At that

time in 1991 the business of the Inn had run down and was not trading well. He closed the premises and with the aid of a mortgage of

£50,000.00 on his family home it was re-equipped, renovated and re-opened in April 1992. While the bar operated every night, a

discotheque / cabaret operated one night per week. The vast majority of the clientele came from across the border. Across the road

from the Point Inn was an eight acre site and in 1989 the plaintiff sought and obtained planning permission for a caravan park.

The nightclub aspect of the business was for a short period conducted under the style “The Dungeon” and by May 1992 had changed

its name to “Rave in the Cave”. From the opening of the newly revamped nightclub aspect of the business in April 1992 difficulties

arose between the plaintiff and the local Gardaí.

In summary these difficulties commenced on the opening night when the nightclub was visited by Sergeant John McPhillips who, on

leaving the premises told the plaintiff, in the hearing of patrons, “get your house in order”. The plaintiff failed to receive an

explanation for this statement. (But as the learned trial Judge found, it may have been a reference to the fact that there had been

several breaches of the laws on opening hours by the plaintiff.) He raised this matter subsequently at a meeting with Superintendent

Kenny, the Garda officer in charge of the district, who agreed to look into the events of the opening night. At that stage no mention

of illegal drugs was made. However on subsequent weekends in May and June the nightclub was the subject of a visitation by

Sergeant McPhillips with, on most occasions, seven or eight Gardaí. There was also evidence of a Garda checkpoint being set up

approximately one mile from the Point Inn for the purpose of checking people who might be going there. The occupants of cars were

asked if they were going to the Point Inn and if they said so their cars were searched. Following complaints and representations by

the plaintiff to the Superintendent a meeting took place between them in the earlier part of June 1992 at which it was agreed that

undercover Gardaí would attend at the premises to address the possibility of illicit use or dealing in drugs there. Apparently this took

place regularly until early August. In the meantime, then Inspector Lennon, later to become Superintendent Lennon, one of the chief

figures in this case, attended the premises of the plaintiff on 21st June and spoke to him about the possibility of illegal drugs being on

the premises.

On the night of 3rd August, the August Bank Holiday weekend, the Gardaí raided the nightclub at about 12:30 a.m. in the morning.

The plaintiff first of all observed a group of men wearing helmets and visors running out of the car park towards the main entrance of

the nightclub. He then observed that they were Gardaí. The plaintiff was knocked out of the way by the first Garda. There were

about 60 Garda in all. Most were wearing helmets with their visors down and carrying flash lamps. Other Gardaí broke into two

emergency exits with sledgehammers. Patrons were manhandled, and some male patrons were searched and had their pants pulled

down. All of this lasted an hour. Some 10 or 12 patrons were arrested but it transpired that none were subsequently charged with any

offence. The plaintiff made a complaint to Superintendent Kenny following this incident which was reported at that time in the Derry

Journal. Following this incident undercover Gardaí continued to attend the premises.

In September 1992 the annual sitting of the District Court for the licensing of licensed premises took place and during September the

plaintiff received notification from the Gardaí of their intention to object to the renewal of his liquor license, dancing license and

restaurant certificate.

Shortly after that he was served with 32 summonses containing charges which alleged that the plaintiff had knowingly allowed the

dealing of drugs on his premises on various specified dates.

On 18th September, 1992, following objection from the Gardaí, the District Court refused to renew the licenses in question. The

plaintiff appealed to the Circuit Court and continued trading pending the appeal. The appeal to the Circuit Court was later adjourned

from time to time pending the outcome of the criminal prosecutions.

From charge to trial

For the purpose of assessing damages pursuant to s. 9 of the Act of 1993 the High Court deemed the 1st October, 1992 to be the

date on which the plaintiff was charged with criminal offences.

In February 1993 Gardaí, numbering between 80 and 100, raided the plaintiff’s premises in a similar fashion to the earlier substantial

raid. It lasted about 1½ hours. There were a number of arrests and some tablets were found. Again on that occasion doors were

broken in. The plaintiff complained to the Minister for Justice and the Garda Complaints Board arising from this raid. He felt his

premises were being unfairly targeted and that the operation was out of proportion to any perceived problem.

In or about this time a threat was made on the plaintiff’s life by the IRA and he closed the premises on 8th September, 1993. He

opened the premises during the Christmas period and the threat was repeated in early January 1994 and the premises closed again. In

evidence before the High Court the plaintiff expressed his belief that the threats arose as a result of the adverse publicity following

the Garda raids. The premises reopened in April 1994 and throughout the summer of 1994 there were regular Garda roadblocks in the

vicinity of the premises.

On 30th September, 1994 the third major Garda raid occurred with this time with well over 100 Gardaí participating. The raid was

conducted in a manner similar to the two previous major raids. Doors, tables and other items on the premises were damaged. A

number of arrests were made and searches were conducted in the car park.

Having appeared before the District Court on a number of occasions in February 1993 the plaintiff elected for trial in the Circuit Court

before a Judge and jury. On the application of the D.P.P. the plaintiff’s trial was transferred to Dublin.

The first trial commenced in late October 1994 but was aborted due to prejudicial reporting in the newspapers.

The plaintiff gave evidence of having suffered a great deal of stress at the time both because of the offensive nature of the publicity,

its damage to his business as well as the fact that the first trial was aborted.

In July 1994 the plaintiff found he was unable to insure the Point Inn premises. Furthermore, he was under risk of losing his license for

the premises. He placed the Point Inn on the market at the asking price of £500,000.00. No sale was concluded and the plaintiff

believed this to be due to prospective purchases awaiting the outcome of the trial in the belief that the premises could be obtained at

a lesser price if he should be convicted.

The trial

The plaintiff’s trial on criminal charges commenced in February 1995 and lasted eight days.

He was convicted and sentenced to three years imprisonment and fined £10,000.00.

He was to serve 27 months in prison.

Before referring to the course of events subsequent to the plaintiff’s conviction and those which ultimately led to that conviction

being quashed I think it is convenient to set out here the factors which tainted his trial and led to a perversion of the course of

justice.

These factors consisted mainly of conspiracy to provide false evidence and perjury at the trial.

The case for the prosecution was set out in the Statements of Witnesses for the Prosecution contained in what is known as the Book

of Evidence.

The prosecution’s case contained fundamental weaknesses which were identified by counsel for the D.P.P. in an advice on proofs

furnished to the Chief State Solicitor in advance of the trial. This advice on proofs was furnished to Detective Garda McMahon and

Superintendent Lennon. I think it is sufficient for present purposes to refer to the principal deficiency in the evidence identified by

counsel namely the absence of any evidence, specifically in the statement of Detective Garda McMahon, that the accused, Mr.

Shortt, saw and permitted illicit transactions of drugs on the premises. This would have been a key element in any case against Mr.

Shortt and was so identified by counsel for the D.P.P. Detective Garda McMahon was the primary witness for the prosecution with

regard to the alleged drug dealing on the Point Inn premises.

This identified weakness in the case for the prosecution was the genesis of the conspiracy and perjury which was to follow in the lead

up to and at the trial.

Full details of the nature and context of all these events are set out in the judgment of the Court of Criminal Appeal in Shortt –v-

D.P.P. delivered by Hardiman J. on 31st July, 2002. The terms of that judgment were relied upon by the plaintiff in these proceedings

without objection by the State.

In general terms what occurred was that Superintendent Lennon, who had been in charge of operations in relation to the plaintiff and

the Point Inn, and Detective Garda McMahon, with a view to filling the lacuna in the prosecution case, set about preparing a second

witness statement which would be served on Mr. Shortt before his trial as notice of additional evidence which Detective Garda

McMahon would give at the trial. A number of meetings took place between Superintendent Lennon and Detective Garda McMahon

with regard to the preparation and concoction of this second statement both in the former’s office and, on one occasion, in Detective

Garda McMahon’s home where a version of the statement was actually typed up. A first version of the second statement which had

been drawn up by Detective Garda McMahon did not, in the eyes of Superintendent Lennon, go far enough. As a result of proposals

made by Superintendent Lennon the Detective Garda duly included further additions to the second statement which purported to say,

inter alia, that certain illicit drug transactions which he saw taking place in the Point Inn also occurred within the view of or within

“eyeshot” of the plaintiff. This additional evidence was intended to copper-fasten the case against Mr. Shortt.

In the event, Detective Garda McMahon gave such evidence at the trial. As the Judge at that trial told the jury Detective Garda

McMahon’s evidence was the key evidence for the prosecution. At the trial Detective Garda McMahon was strongly cross-examined

on this evidence, as well as other evidence. For the purpose of giving evidence he had recourse to his notes which he stated at the

trial were contemporaneous notes. He also gave evidence that the second statement was drawn up from his actual recollection of

what took place at the time.

We now know that to be false evidence as found by the Court of Criminal Appeal. He also deliberately concealed from the Judge and

jury and the defence at the trial, by way of false evidence, the original notes concerning his visits to the plaintiff’s premises and all

notes and documentary material relating to the drawing up of the second statement all of which emerged much later and were before

the Court of Criminal Appeal. These latter included notes annotated by Superintendent Lennon with a view to the concoction of

further evidence that Detective Garda McMahon would give at the trial. The Court of Criminal Appeal concluded that this principal part

of the additional evidence of Detective Garda McMahon was false and untrue. It also concluded that both he and Superintendent

Lennon concealed this at the hearing before the Court of Criminal Appeal.

What occurred can only be characterised as a conspiracy between the two Garda officers to defeat the ends of justice in which they

both stood over perjured evidence given at the trial.

Much later in the aftermath of the trial these circumstances were to give rise to tensions, recriminations and bitterness between

Superintendent Lennon and Detective Garda McMahon.

Superintendent Lennon exploited the dubious success of his operations and conviction by putting himself forward and obtaining a

Garda award for his professionalism. With this in turn he sought and obtained public acclamation through the media.

Bitter at Superintendent Lennon getting exclusive credit when he had to do the nasty work Detective Garda McMahon was to tell his

wife that he committed perjury when giving evidence at Frank Shortt’s trial, as Mrs. McMahon stated in her evidence which was

accepted by the Court of Criminal Appeal. She had previously told this to the Garda investigation but a note of her account appears

to have been lost sight of until it emerged in the course of that hearing before the Court of Criminal Appeal.

Another bizarre twist in the aftermath of this trial was some four years later when as a result of tensions between the former

conspirators a “letter of satisfaction”, as it was described in the Court of Criminal Appeal, came into existence, one particular draft of

which was drafted by Superintendent Lennon himself. This was a proposed letter that Detective Garda McMahon was to write to

Superintendent Lennon the substance of which was to declare that he, Detective Garda McMahon, had no information prejudicial to

the career of Superintendent Lennon and that he had never known the Superintendent to act unlawfully in the course of any Garda

operation. The Court of Criminal Appeal described this letter as evidence of an awareness on the part of Superintendent Lennon that

his actions in the procurement of the additional statement were unlawful and if revealed would gravely damage his career.

I mention these latter matters in order to recall how both Superintendent Lennon and Detective Garda McMahon were determined in

their persistence post-trial to cover up and conceal any perjury which took place at the trial itself and this was continued up to and

including the hearing before the Court of Criminal Appeal.

The victim of the machinations was of course Mr. Shortt himself who had to suffer through them in the knowledge that the evidence

in question was false.

Immediate aftermath of the trial

At the conclusion of the trial the plaintiff was convicted on 13 counts and sentenced to three years imprisonment on each count, to

run concurrently and fined a sum of £10,000.00. His first appeal to the Court of Criminal Appeal against conviction and sentence was

unsuccessful except for the removal of the fine. He served 27 months in prison.

There were still a number of summonses outstanding against the plaintiff and he was brought back to Court from prison on a number

of occasions in connection with these summonses but in the end prosecutions were never proceeded with. Nonetheless he had been

returned for trial on the other charges and the prosecution for them was hanging over him for a considerable period of time.

This appeal on the issue of damages is of course based on the findings of fact in the High Court.

I think it is necessary to set out in this judgment, as regards the matters which arose after the conviction, those facts, as recounted

in the evidence of the plaintiff, which the learned trial Judge accepted.

First of all there is the immediate incarceration of the plaintiff in the aftermath of his conviction:

“Following his conviction the Plaintiff was handcuffed in court and taken down. The trial and conviction received

widespread publicity. He was photographed being taken away from court. He was taken to Mountjoy Prison. At Mountjoy

Prison he was required to strip and shower and was given prison garb comprising denim pants and a denim shirt which

were too big for him. He was placed in a cell with two other prisoners shortly to be joined by two other prisoners. He felt

threatened by the presence of the other prisoners who were in their twenties the Plaintiff himself then being sixty years

of age. For the second night and the following twelve weeks he had a cell to himself. This cell was in the old prison and

measured 10’ x 7’. It was in disrepair. It had one window high up. The floor was of lino badly burnt and unclean. His bed

had a thin horse hair mattress. There was a stench. The cell was infested with mice and cockroaches. There were no

washing or toilet facilities. The toilet was a small aluminium soup pot. He was confined to the cell for seventeen hours

each day. He had to slop out each day in the toilet area the floor of which was generally covered with urine, excreta and

vomit. He was allowed out of the cell to collect his meals which he then took back to the cell to consume. Apart from

taking air in the exercise yard in the morning and afternoon he read in his cell. He found it difficult to cope with his loss of

freedom. On a number of occasions he was taken back to the Four Courts in relation to outstanding summonses. On these

occasions he was placed in a holding cell with some twenty other prisoners which cell was in a deplorable condition.”

Subsequent period in prison

“While in prison the Plaintiff suffered from illness. In the gym he damaged his arm and shoulders and was prescribed pain

killers. These had a severe effect on his stomach. There was a gradual increase in the pain in his neck and shoulders and

he continued to suffer from stomach problems with cramps and vomiting and sleep disturbance. This continued for some

seven months before he was sent to the Mater Hospital. The neck and shoulder symptoms were diagnosed as related to

his work in the gym. He was treated with injections of cortisone. About this time he applied for temporary release to

attend the baptism of his grandchild but was refused. He sought temporary release to attend his daughter’s 13th birthday

party on the 23rd August 1995 but was again refused. From the first day he entered into Mountjoy he developed

depression and was consistently depressed for most of the first two months. Thereafter his depression was intermittent.

He was treated by prescribed medication. He was given tablets to help him sleep but after time was able to dispense with

these. In prison he also suffered from vertigo and high blood pressure. He practised meditation twenty minutes each

morning and each night to help him cope with his situation and this gave him relief.

While in prison he saw a television programme “Drugs in Donegal” in which Superintendent Kevin Lennon appeared in front

of the ruins of the Point Inn and stated that the proprietor was then currently serving a term of imprisonment in relation

to illegal drugs. This upset him greatly. Also there were several violent incidents in the prison which upset him greatly.”

The plaintiff’s wife also gave evidence concerning the effect of imprisonment on him. As the learned trial Judge recorded when she

first visited the plaintiff in prison he looked completely different and “was shocked and looked terrible and was angry and upset”.

When she visited him in prison subsequently she saw his condition deteriorate to the point “where he was an old man and like a

zombie. She did not think he would survive his prison term. When released from prison the plaintiff was in good form but later on went

into another state of depression as he was too old to go and look for a job. He had no income and no prospects. His sole income was

a disability allowance”.

The question of dropping his appeal

“In October 1995 his appeal was pending and a proposal was communicated to him. If he should drop his appeal the State

would not proceed on six outstanding charges pending against him and he would be transferred to an open prison and

shortly thereafter released to join his family. He did not accept the offer. At this time also the six outstanding charges

were proceeding. By this stage he had lost some 2½ stone in weight which he attributed to stress, anxiety and

depression.”

This is but one of the particularly nefarious aspects of this case. The prospect of early release was dangled in front of the plaintiff

when he was most vulnerable and open to emotional blackmail. The intent can only have been to avoid any further judicial scrutiny of

the case by pressurising the plaintiff to accept the finding of guilt in return for a sort of “deal”. Formally at least, only the D.P.P.

could withdraw the outstanding charges. Understandably the legal advisors of the plaintiff advised him of the advantages of going

ahead with such a deal. Attractive as it may have seemed, the plaintiff made what was for him an emotionally charged decision to

maintain his appeal and reject the approach in order to vindicate his innocence. Who was involved in making this offer of a “deal” to

the plaintiff and how the fulfilment of a promise to drop outstanding charges and ensure early release could have been achieved was

never explored or explained in the evidence.

Temporary release and family life

“His first fourteen applications for temporary release were refused. Christmas was a particularly depressing period and he

greatly missed his family. He was allowed weekly visits from his wife but following each visit he would sink into a state of

depression and so he asked her to cut down on the number of visits. He had a concern that his situation was affecting his

children. He had school reports in respect of his son Christian that he was cheeky and a negative influence on other

students and on Ezeriah that he was unsettled and careless in concentration. They were having fights as a result of other

children calling the Plaintiff a drug dealer. At this time Christian was 14 and Ezeriah 12 years of age.”

While the plaintiff was in prison the evidence was that his wife continued to run the Point Inn until it had to be closed down

permanently after it had been set on fire. It was effectively common case that the fire had been caused by subversive elements in

reaction to the adverse publicity given to the plaintiff by reason of his alleged drug dealings. The plaintiff’s wife had a prisoners’ wife’s

allowance and to provide an income she took work as a nurse doing night duty. She also gave evidence that the great relationship

with the plaintiff had prior to his imprisonment with the children never really recovered after his release.

Unsuccessful appeal and continued imprisonment

“The Plaintiff’s appeal against conviction and sentence was heard on the 13th May 1996 and Judgment was reserved. The

Plaintiff was optimistic about the outcome. Judgment was delivered late in July of that year and the conviction was

affirmed and the only benefit to the Plaintiff was that he was relieved of the monetary penalty.

Having spent twelve weeks in the cell which I have previously described the Plaintiff was moved to the Training Unit in

Mountjoy and remained there subject to one interruption until the first week of January 1997 when he was transferred to

Castlerea Prison where he finished his sentence on the 14th May 1997 and was released. The interruption related to a

period of twelve weeks when he was transferred back to the main prison for disciplinary reasons. In the Training Unit he

had a cell of his own. The cell was quite new and comfortable. The building was new. He had wash up facilities but not a

toilet. If he wished to go to the toilet he pressed a bell and was normally let out. The officers were more civil than in the

main prison except for one officer who was a bully and gave him “a lot of grief”. Dining was in the dining hall. If he wished

he could take the food back to his cell. He undertook two courses one in creative writing and one in computers. While the

leaflet which he was given about courses promised remission if a prisoner applied himself he received no remission. He did

however receive temporary release for four days at his second Christmas and shortly thereafter was transferred to

Castlerea which was described as an open prison. The prison itself was surrounded by a high wall but it was open in the

sense that the prisoners lived in newly constructed detached houses and conditions were much better than in Mountjoy.

There were no educational facilities there and no library. He spent his time walking in a circle around the yard.”

Medical problems and release

“In March 1997 he had further medical problems related to high blood pressure and developed vertigo. He had a heart

problem before he went to prison but this deteriorated while in Castlerea. On examination it was found that his heart was

missing every seventh beat. His consultant attributed this to stress. While in Castlerea Prison the Plaintiff got temporary

release every weekend. On one weekend however he suffered a back injury and was unable to return. A medical

certificate was sent to the prison. However the Gardaí arrived at his house and checked that he was in bed. He returned

to prison four days late on a walking stick. As a result of this incident his release date which was scheduled for May 2nd

1997 was cancelled. In fact he was released some two weeks later which was two weeks earlier than his actual release

date.”

Post-release experiences

“On release from prison the Plaintiff found himself practically bankrupt without a job or business. He had received nothing

out of the receivership. He was at risk of being struck off by his Institute [The Institute of Chartered Accountants]. He

was now almost 63 years of age and he was depressed and angry at what had occurred to him and his family and in

despair. He applied for and was given disability benefit on the basis of his back. He was treated with anti depressant

medication. He was obsessed with establishing that he was not guilty and with clearing his name. Within his own

community he felt ostracised. He was viewed like a pariah. He attended Mass and Holy Communion every Sunday but felt

he was being cold shouldered by the congregation and stopped going to the church. He did not socialise. His relationship

with his children had been damaged and they were no longer there for him as in the past.

After his release he set about a malicious injury claim in respect of the destruction of the Point Inn. For this purpose a

certificate is required from the Chief Superintendent of the Gardaí and he had very considerable difficulty getting this.

Some three years following his release passed before the certificate came to hand. The claim was defended by Donegal

County Council in that they relied on the Malicious Injury Act 1981 section 12 to reduce or exclude compensation upon

the basis that the Point Inn had been used for illegal purposes as evidenced by the Plaintiff’s conviction for knowingly

allowing the sale, supply, distribution and possession of controlled drugs on the premises and further that there may have

been a direct connection between the use of the premises for illegal purposes and the attack thereon which caused the

damage. This added to his sufferings and concerns. The plea was only withdrawn on the date of the hearing after his

conviction had been set aside. This compounded the delay by the Garda authorities in issuing the necessary certificate

which did not issue for two years and nine months following application for the same.”

Application to the Court of Criminal Appeal pursuant to the Criminal Procedure Act, 1993

In November 2000 the plaintiff’s application to the Court of Criminal Appeal pursuant to s. 2 of the Criminal Procedure Act, 1993 was

heard and there being no objection from the D.P.P. his conviction was quashed.

In May 2002 the plaintiff’s application to the Court of Criminal Appeal pursuant to s. 1(9), regarding a miscarriage of justice, was

heard by the Court of Criminal Appeal. The decision certifying that there had been a miscarriage of justice was delivered in July 2002.

During all this period the plaintiff was suffering from severe stress and anxiety.

Circumstances following the setting aside of the conviction and the grant of a Certificate of Miscarriage of Justice

Following the setting aside of his conviction and the granting of the certificate by the Court of Criminal Appeal the learned trial Judge

noted that the attitude of the majority of the community in the plaintiff’s locality towards the plaintiff had improved but not of all the

community. He went on to record:

“He now mixes very little with that community. He has returned to Mass. He is still not working. The main reason for this is

that he continues to have trouble with his back and also has had to spend a very considerable amount of time assisting

his legal team for the present case. Having regard to his age it would be difficult to get a job. He remains angry at what

has happened to him. Prior to the events giving rise to this claim the Plaintiff had a drink problem. In 1988 he was

admitted to the Rutland Clinic after which he did not drink until May 1993 when he resumed drinking as a result of the

actions of the Garda Síochána. Thereafter he continued to drink on and off until early in 2005. He is not drinking at the

moment and had not had a drink for some six months. However in the course of this hearing he lapsed. The Plaintiff no

longer suffers from vertigo or with his blood pressure. He still suffers with his heart and with his back.

A book of medical reports was put in evidence. It is sufficient for present purposes if I record the opinion of Professor

Brian Lawlor, Consultant Psychiatrist following an assessment of the Plaintiff on the 15th September 2004 –

“Although Mr. Shortt has a normal mental state examination at present he has experienced significant emotional

distress and two episodes of depression related to events surrounding his dramatic experiences of imprisonment and

miscarriage of justice. The prognosis for his depressive episode should be relatively good with resolution of the

underlying triggering events. There are ongoing feelings of anger and frustration regarding his experiences and he

may benefit from supportive psychotherapy in this regard. The prognosis for his alcohol abuse is reasonably

favourable as well as long as he maintains his aftercare programme. Once again resolution of the ongoing stressor

should have a positive effect in this regard.”

In a report from the Plaintiff’s general practitioner, Dr. Daniel McGinley it is reported that the Plaintiff was having

significant difficulties in acclimatising back to his home/family situation. There were relationship difficulties when he was

released home. He found the situation stressful. No medication was prescribed in relation to this. On the 9th September

1997 the Plaintiff was prescribed anti depressant medication for depression and this was repeated on 15th October 1997

and in November 1997.”

The assessment of damages

s was pointed out on behalf of the plaintiff in the course of this appeal the principal basis of his claim is under s. 9 of the Criminal

Procedure Act, 1993. The relevant parts of that section are as follows:

“(1) Where a person has been convicted of an offence and either …

(a) (ii) the Court or the court of re-trial, as the case may be, has certified that a newly-discovered fact shows that

there has been a miscarriage of justice, …

the Minister shall, subject to subsections (2) and (3), pay compensation to the convicted person … unless the non-

disclosure of the fact in time is wholly or partly attributable to the convicted person.

(2) A person to whom subsection (1) relates shall have the option of applying for compensation or of instituting an action

for damages arising out of the conviction.”

I think it is important to note at this point, that there was a substantial degree of agreement arrived at between the parties and

approved of by the learned High Court Judge as to the approach to be adopted in respect of this claim under s. 9(2).

In his judgment the learned High Court Judge noted:

“As the parties are in agreement that I should assess damages pursuant to s. 9(2) of the Act in respect of the period

commencing on the date on which the plaintiff was charged I propose to do this. I propose, as agreed between the

parties, to adopt the approach in The Independent Assessor –v- O’Brien & Ors and make a single award of damages rather

than to break the same down into a number of discreet heads of award in respect of various headings of claim which

could be maintained at common law. Thus the plaintiff claims damages pursuant to the provisions of s. 9 of the Criminal

Procedure Act, 1993 and I propose to make an award of damages on that basis insofar as the events in respect of which

claim is made occurred after the plaintiff was charged. The plaintiff claims further or in the alternative damages for breach

of constitutional rights, for conspiracy, for negligence and breach of duty, for malicious prosecution, for false

imprisonment, for loss of reputation including but not confined to damages for libel and slander and damages for deliberate

and conscious abuse of statutory powers. I do not propose to make awards under any of those headings in respect of

anything which occurred after the plaintiff was charged notwithstanding that that evidence would entitle a claim on all or

any of such basis to succeed in the alternative to the claim under s. 9. I will however have regard by analogy to the

common law in relation to such claims insofar as the plaintiff claims damages and aggravated and / or exemplary damages

in respect of his claim under s. 9. I adopt this approach upon the basis that the parties are in agreement that I should do

so. … I propose adopting as the date of charge the 1st October, 1992.”

No issue has been raised in this appeal concerning the learned High Court Judge’s general approach as outlined above. The case

referred to above by the learned High Court Judge, and relied upon by both parties, is an English decision in relation to the application

of somewhat corresponding legislation in the United Kingdom. I do not consider it necessary to consider the English legislation or the

decision interpreting it since the approach adopted by the learned High Court Judge, with the agreement of the parties, is consistent

in my view with the terms of s. 9 as well as a logical and effective means of assessing damages where the facts and circumstances

relating to the various potential heads of claim, within and without the ambit of the section, are inextricably interwoven. The issues in

this appeal of course turn on the manner in which the learned High Court Judge assessed the damages in the course of that general

approach rather than the approach itself.

It should however not be overlooked that s. 9 of the Act of 1993 provides, inter alia, for the institution of an action for damages

arising out of the quashing of a conviction where the appropriate Court has certified, as has occurred in this case, that a newly

discovered fact shows that there has been a miscarriage of justice. It is intended to provide a remedy where it was understood that

no remedy existed. Thus it is entirely conceivable that a claim for compensation under s. 9 could arise where there is no other

actionable wrong against the State or any other person there being no culpability or blameworthiness on their part. Thus a claim can

arise, inter alia, where a conviction was quashed because of the existence of “a fact the significance of which was not appreciated

by the convicted person or his advisers during the trial”. I do not think it is necessary to hypothesise by way of example since it is

self-evident that such circumstances, and indeed other circumstances envisaged by the section, could arise without actionable

culpability on the part of any other person. Thus it is far from the case that every claim brought pursuant to s. 9 would attract

aggravated or exemplary damages.

I mention this to emphasise, although it hardly needs emphasis, that there are especially grave features of this case which give rise

to the level of damages which I feel it is appropriate to award. In this case the actual or potential other causes of action which the

appellant could have pursued for malicious prosecution, unlawful conspiracy and so on became amalgamated in the elements which

the High Court took into account when awarding compensatory damages pursuant to s. 9 of the Act of 1993. As the trial Judge

himself acknowledged there were “several torts comprised in the claim”.

These special features, which in turn have particular relevance to the quantum of aggravated and exemplary damages, included the

malice and dishonesty of the Garda members involved including their concealment of evidence, the abuse of power, conduct

calculated to undermine a fair trial, the cruel treatment of the appellant when imprisoned concerning compassionate leave, the

physical and psychological effects of imprisonment which were exacerbated by the belief, which was correct, that his conviction and

imprisonment had not been brought about by some dreadful error or mistake but by the male fide machinations of the Garda members

involved. Coupled with the foregoing, the consequences included degradation of his family circumstances, public degradation in the

eyes of the community, at least some of which was engendered by deliberate exploitation of the case for the purposes of publicity

and self-advancement by a Garda Officer. The whole course of events changed permanently the course of his life and at an age

where, and in circumstances where, even on release or ultimate vindication, it could never return to its normal course to any serious

extent. His professional life and standing as an accountant was jeopardised.

Principles applicable to the award of damages

As already pointed out the loss or injury suffered by the plaintiff in this case, physical, moral and financial, were all associated with

grievous wrongdoing and male fides on the part of the servants of the State. In these circumstances I am quite satisfied that the

principles relating to the award of damages in tort or for breach of a constitutional right as set out by Finlay C.J. in Conway –v- Irish

National Teachers Organisation [1991] 2 I.R. 305 at 317 are applicable to the assessment of damages in this case. I would add in

passing, whether those principles would by analogy be applicable without qualification in a case of compensation pursuant to s. 9 for

a miscarriage of justice where there was no other actionable wrong or culpability on the part of another person is not in issue. I do

not suggest that it might be. It is just that the question does not arise, there being no serious issue between the parties (apart from

one caveat on the part of the State to which I will refer subsequently) that those principles do apply in this case.

In Conway –v- INTO Finlay C.J. stated:

“In respect of damages in tort or for breach of a constitutional right, three headings of damages in Irish law are, in my

view, potentially relevant to any particular case. They are:-

1. Ordinary compensatory damages being sums calculated to recompense a wronged plaintiff for physical injury,

mental distress, anxiety, deprivation of convenience, or other harmful effects of a wrongful act and/or for monies

lost or to be lost and/or expenses incurred or to be incurred by reason of the commission of the wrongful act.

2. Aggravated damages, being compensatory damages increased by reason of

(a) the manner in which the wrong was committed, involving such elements as oppressiveness,

arrogance or outrage, or

(b) the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or

to ameliorate the harm done or the making of threats to repeat the wrong, or

(c) conduct of the wrongdoer and / or his representatives in the defence of the claim of the wronged

plaintiff, up to and including the trial of the action.

Such a list of the circumstances which may aggravate compensatory damages until they can properly be classified as

aggravated damages is not intended to be in any way finite or complete. Furthermore, the circumstances which may

properly form an aggravating feature in the measurement of compensatory damages must, in many instances, be in part a

recognition of the added hurt or insult to a plaintiff who has been wronged, and in part also a recognition of the cavalier

or outrageous conduct of the defendant.

3. Punitive or exemplary damages arising from the nature of the wrong which has been committed and/or the

manner of its commission which are intended to mark the court's particular disapproval of the defendant's conduct

in all the circumstances of the case and its decision that it should publicly be seen to have punished the defendant

for such conduct by awarding such damages, quite apart from its obligation, where it may exist in the same case,

to compensate the plaintiff for the damage which he or she has suffered. I have purposely used the above phrase

"punitive or exemplary damages" because I am forced to the conclusion that, notwithstanding relatively cogent

reasons to the contrary, in our law punitive and exemplary damages must be recognised as constituting the same

element.”

I think it is convenient here to emphasise, as Finlay C.J. went on to point out, that exemplary damages and punitive damages are

synonomous and that is the position in our law notwithstanding the decision of the High Court in Kennedy –v- Ireland [1987] I.R. 587.

This was also the approach adopted by this Court in McIntyre –v- Lewis [1991] I.R. 121.

Compensatory damages

On the basis of the principles laid down in Conway –v- INTO (cited above) the two aspects of compensatory damages, general

damages and aggravated damages arise for consideration in this case. In his judgment the learned trial Judge having acknowledged

that aggravated damages represent, inter alia, a recognition of the cavalier or outrageous conduct of a defendant, went on to

exclude the making of an award under the heading of aggravated damages essentially for the following reasons stated in his

judgment:

“However the Court must be diligent to ensure that there is no element of double compensation. The award of general

damages by analogy to the common law in relation to those causes of action which the defendant’s conduct would

constitute is intended to take account of injury to feelings, loss of dignity, humiliation, frustration, heplessness and

despair including in the case of a claim under the 1993 Act despair at the failure of the criminal justice system. In these

circumstances I do not think it appropriate to make an award under this heading.”

Undoubtedly the trial Judge was faced with a claim unprecedented in form and ambit, not governed by direct precedent, and he

awarded a fairly substantial sum of €500,000.00 intended to reflect the loss and injury suffered by the plaintiff having regard to the

inherently aggravating circumstances of the case.

As Finlay C.J. pointed out in the citation above, general damages, or ordinary compensatory damages are sums calculated to

recompense a wronged plaintiff for physical injury, mental distress, anxiety, deprivation of convenience, or other harmful effects of a

wrongful act. There may indeed be particular aspects of a wrong reflected in the level of ordinary compensatory damages which are

closely connected or interwoven with other factors which could give rise to aggravated damages. It could be difficult for a jury or a

trial Judge in awarding ordinary compensatory damages not to have regard to the fact that, for example, a deprivation of liberty had

been carried out by Garda officers in abuse of the law or in a male fide manipulation of the due process of the law.

However, as the principles referred to make clear, ordinary compensation is designed to compensate the direct effects of the wrong

on the person who suffered it.

On the other hand aggravated damages represent an augmentation of the ordinary compensatory damages by reason of the manner

in which the wrong was committed, the conduct of the wrongdoer at the time and subsequent to the commission of the wrong or

wrongs involved. Aggravated damages have also been described as constituting “… additional compensation for the injured feelings of

the plaintiff where his sense of injury resulting from the tort is justifiably heightened by the manner in which or the motive for which

the defendant did it.” (White, Irish Law of Damages Figure 1. p. 7; Butterworth (Ireland) Ltd. 1989).

In my view where there are clearly identifiable circumstances in a case of this nature which comprise the substantial aggravating

factors referred to in the principles in Conway, allowing for the fact that the factors outlined there were not intended to be definitive,

then compensation by way of aggravated damages must be included in the award.

A global figure for compensatory damages may well be appropriate where the circumstances of the case indicate that the factors

giving rise to aggravated damages are relatively marginal to the substantive wrongs which entitle a plaintiff to ordinary compensatory

damages.

Furthermore, in cases which warrant the award of aggravated damages and where the circumstances attenuant to the commission of

the wrongs in cause are closely interwoven with the factors which give rise to such damages it may be appropriate to award a global

figure for compensatory damages provided the award is expressly stated to include both ordinary and aggravated damages. In a court

of trial at first instance it may well be preferable, in the circumstances of the case and in the discretion of the trial Judge, that the

awards of ordinary compensatory damages and aggravated damages be separately identified under their respective heads. This would

facilitate the review of such awards on appeal.

I think one must accept that in making these awards the distinction between serious elements of the wrong committed and

aggravating factors may at times be a very fine one or indeed there may be an overlap. Thus, although ordinary compensatory

damages and aggravated compensatory damages may be conceptually distinct it will often be difficult in practice to exclude

overlapping elements in the assessment of ordinary compensatory damages to be paid to a plaintiff. The primary compensatory

damages are the ordinary damages which may be increased by reason of the aggravating circumstances. For these reasons, and

indeed as a matter of general principle, I agree with the submission by counsel for the State that where distinct amounts of damages

are being awarded on the basis of both ordinary and aggravated damages the totality of any amounts attributed under these two

headings should be considered with a view to ascertaining whether the total sum awarded represents fair compensation for the

totality of the injury and loss suffered by the plaintiff. In Reddy –v- Bates [1984] ILRM 197 at 202, in a claim for personal injuries, loss

and damage, this Court stated:

“… [I]n a case such as this, where damages are to be assessed under several headings, where the jury has added the

various sums awarded and arrived at a total of damages, they should then consider this total sum, as should this Court

and any appeal, for the purpose of ascertaining whether the total sum awarded is, in the circumstances of the case, fair

compensation for the plaintiff for the injuries suffered, or whether it is out of all proportion to such circumstances.”

Such an approach, by way of analogy, in cases of this nature should obviate the risk of double compensation without undermining the

entitlement of a plaintiff to damages under both headings.

The quantum of compensatory damages

First of all I propose to address, in the light of the principles outlined above, the amount which should be awarded by way of

compensatory damages to the plaintiff, for the wrongs to which he was subjected, from the date of charge up to the trial in the High

Court and having regard to the broad approach, agreed in the High Court, that all such loss would be deemed to be dealt with

pursuant to s. 9 of the Act of 1993 by way of compensatory damages.

The facts as found by the learned trial Judge as regards the deprivation of liberty suffered by the plaintiff, the physical and mental

distress, anxiety and other harmful effects as a result of the wrongs done to him speak for themselves and do not warrant detailed

repitition.

From the time he was first charged with the offences for which he was wrongly convicted up to the time when he was granted his

certificate of a miscarriage of justice by the Court of Criminal Appeal the plaintiff lived through a nightmare of kafkaesque proportions

which enveloped his entire existence. Everything he stood for, had strived for or aspired to seemed set at nought. It is a nightmare

from which he is only relatively recently emerged but he will never escape the full consequences of this dreadful and traumatic period

in his life.

While there have been other significant awards for such wrongs as malicious prosecution and wrongful arrest none that I am aware of

could be taken as a precedent for this case because the scope and scale of the wrong and suffering to which the plaintiff was

subjected in this case extend far beyond any such case that has previously come before the Courts. In the absence of precedent I

can understand why the learned trial Judge would have regard to damages awarded in the more serious of defamation cases.

However, given that the wrongs and their consequences, physically and morally, suffered by the plaintiff go far beyond, in depth and

breadth, those which could be suffered as a result of even the most serious defamation I think this was too limited an approach. The

plaintiff suffered loss of liberty with all the ignominy of being condemned as a criminal by the State. His stress and anxiety was

exacerbated by the fact that he knew it was done on foot of perjured evidence. He was affectively taunted by the offer of a “deal”

to drop his appeal, and thereby publicly acknowledge his guilt in exchange for the prospect of early release and return to his family.

His wife and children were tainted and the quality of his family life perhaps permanently affected. Certainly his family life and his

relationship with his family were seriously damaged when his children were in their early teens. He will never recover that period of

loss and distress. On his release his life has been consumed with establishing his innocence and vindicating his rights.

Hopefully the final conclusion of these proceedings will vindicate his reputation but the whole series of events which he has

undergone have permanently changed the course of his life over a period and at an age where, even with these proceedings behind

him, it can hardly return to its normal course to any serious extent. I have no doubt, having regard to the evidence, that the horrible

traumas of these events is something with which he will always have to live.

I consider it is manifest that the damages which he should be awarded by way of ordinary compensatory damages must be very

substantial and in my view he is entitled to general damages far in excess of that awarded in the High Court.

Aggravated damages

In the light of the facts of the case I am also of the view he is entitled to very substantial aggravated damages having regard to the

principles set out in Conway and the considerations to which I have referred to above.

I feel that the appropriate approach in this case is to make a global award that includes ordinary general damages and aggravated

damages.

Furthermore, although the plaintiff will never be able to put behind him completely the consequences of what he has gone through,

physically and emotionally, I do not consider that there should be a separate assessment of general damages for any ongoing

consequences in the future. In a Court of trial separate heads of damages for past and future loss may be appropriate principally to

facilitate the review of an award of damages in this Court on appeal. In the circumstances of this case and for the purpose of this

appeal I am satisfied that any future aspect of the plaintiff’s damages can be taken into account in the overall award of

compensatory damages.

Again the facts and circumstances as found by the learned High Court Judge speak for themselves. The aggravating elements are

manifest. The manner in which the wrongs in question were committed against the plaintiff involved an arrogant and oppressive abuse

of power by recourse to perjury so as to undermine the due process of the law. This is compounded by the outrageous attempt to

close down the plaintiff’s continued challenge to his conviction at a time when he was vulnerable, physically and psychologically, by

means the offer of a move to an open prison, early release and the dropping of outstanding charges, the full truth of which we do not

know. The two Garda officers concerned persisted in the denial and cover-up of their conspiracy and perjury to the very end,

resisting with further perjury, the plaintiff’s final application to the Court of Criminal Appeal. The apology from the State came late in

the day before this Court in these proceedings and can in my view have little effect on mitigating damages. On the contrary nothing

has emerged which suggested that the State, including the Garda Síochána, were in any way agitated about setting right the wrongs

inflicted on the plaintiff, other than finally not contesting liability in these proceedings.

Every wrong and every stage of every wrong suffered by the plaintiff was compounded by aggravating factors. The core element of

those factors was the concoction and giving of perjured evidence by the Garda officers. There was a callous self-serving disregard for

the plight of the plaintiff, and his family, throughout.

I am therefore wholly satisfied that a very substantial element of the plaintiff’s compensatory damages should comprise a sum for

aggravated damages for the outrageous and arrogant manner in which the wrongs were inflicted on him, insofar as money can do it.

In these circumstances I have come to the conclusion that the plaintiff should be awarded the sum of €2,250,000.00 by way of

compensatory damages to include aggravated damages.

Exemplary damages

As Finlay C.J. in Conway –v- INTO stated exemplary or punitive damages “are intended to mark the Court’s particular disapproval of

the defendants conduct … [and the Court’s] decision that it should publicly be seen to have punished the defendant for such conduct

by awarding such damages …”.

In the same case McCarthy J. stated:

“The purpose of awarding such damages is truly to make an example of the wrongdoer so as to show others that such

wrongdoing will not be tolerated and, more to the point, will not be relieved on payment of merely compensatory

damages.”

McCarthy J. then went on to state:

“The Constitution in guaranteeing rights imposes corresponding duties. In the instant case, the defendants in deliberately

interfering with the plaintiff's rights have failed in their own duties. Every member of the judiciary has made a public

declaration to uphold the Constitution; it would be a singular failure to do so if the courts did not, in appropriate cases

such as this, award such damages as to make an example of those who set at nought constitutional rights of others. As

the Chief Justice has said, that is not to say that in every case, such as defamation or assault, where there is also, by

definition, a breach of a constitutional right, there should be an award of exemplary damages. In my judgment there was

here a compelling case for the award of such damages.”

I have no doubt that in this case the grounds for exemplary damages are compelling. Although the grounds of the plaintiff’s claims in

this case were not laid as, or characterised as, breaches of constitutional rights per se, the conduct of the Garda officers involved

set at nought core constitutional rights of the plaintiff to due process and a fair trial. However they are characterised he is entitled to

such damages.

In McIntyre –v- Lewis [1991] 1 I.R. 121 at 134 Hederman J. stated:

“In cases like this, where there is an abuse of power by employees of the State the jury are entitled to award exemplary

damages. One of the ways in which the rights of the citizen are vindicated, when subjected to oppressive conduct by the

employees of the State, is by an award of exemplary damages.”

In the same case McCarthy J. observed:

“In my opinion, the damages appropriate to a case of this kind must reflect the proper indignation of the public at this

conduct, whatever windfall it may prove for the plaintiff in the result.”

Exemplary damages are not compensatory. They are, in a sense, a windfall for the plaintiff. Exemplary damages serve several

potential purposes including to mark the Court’s disapproval of outrageous conduct on the part of a defendant. In the case of a jury

they may reflect the indignation of ordinary law abiding citizens at such conduct.

They are also punitive, as the dicta above state. They may financially punish a defendant as a deterrent to that defendant as well as

a deterrent generally to the arrogant use or abuse of power. In their purely punitive dimension the means of a defendant may be

relevant in order to ensure that the punishment is proportionate. However the purely punitive element of these damages is hardly

relevant where the State is the defendant since no individual, let alone those persons who have actually committed the wrong, will

bear responsibilty for paying any of the damages. The liability of the State to pay arises from its vicarious responsibility for its

servants or agents and the payment of damages is made out of public funds.

This of course does not relieve the State from its liability for such damages (see for example McIntyre –v- Lewis cited above). The

award of exemplary damages is, in the words of Finlay C.J. in Conway, “one of the most effective deterent powers which a civil court

has: the award of exemplary or punitive damages.” It is a power which must be available to the Court where there is serious abuse of

power by or on behalf of the State. Such an award against the State, in appropriate cases, marks the Court’s public disapproval of

abuse of power so as to demonstrate that such wrongdoing will not be tolerated. Although in the form of a financial penalty it is in

substance also a moral sanction, a mirror to “the proper indignation of the public”. Such damages remind the other organs of State

that there is not only a duty to compensate a wronged citizen by way of monetary damages but to take all steps necessary designed

to ensure, as far as practicable, that such deliberate abuse of power is not repeated but is prevented.

In awarding exemplary or punitive damages a Court is at large as to the amount which it considers appropriate to express its

disapproval and therefore it must exercise any such power with restraint. The amount awarded should be no more than is

necessitated to convey, in this case to the State, and the public at large, the level of its disapproval in the light of the gravity of the

State’s misconduct. In my view this can only be achieved in this case by making a separate and distinct award for exemplary

damages.

In the Conway case Finlay C.J. also observed that exemplary damages, as a general principle, “should not be awarded if in the opinion

of the Court the amount necessarily payable by the wrongdoer in the form of compensatory damages constituted a sufficient public

disapproval of and punishment for the particular form of his wrongdoing.”

In McIntyre –v- Lewis (at 141) O’Flaherty J. stated:

“If the compensatory amount awarded includes aggravated damages then I believe if any award is made by way of

exemplary damages it should properly be a fraction rather than a multiple of the amount awarded by way of compensatory

damages (including aggravated damages).”

The statement of Finlay C.J. means that the Court has a wide discretion in determining the circumstances in which a separate award

for exemplary damages ought or ought not to be made. The factor he refers to may have special, though not exclusive, relevance to

a case in which the means of the defendant are pertinent. However, in this case I am quite satisfied that a substantial award of

exemplary damages is necessary notwithstanding the level of compensatory damages that is being awarded. It is necessary in order

to fully vindicate the rights of the plaintiff in the circumstances but also as a mark of disapproval of the calculated conduct of the

servants of the State.

It is also worthy of note that the State altered their position on the issue of exemplary damages. They had argued in the High Court

and initially in this Court that where substantial compensatory damages are awarded to a plaintiff any exemplary damages must be of

a strictly limited amount since it would involve double compensation. In the course of this appeal they abandoned this approach

accepting, quite properly, that exemplary damages are a distinct and separate concept from compensatory damages.

Because of the distinction and for the reasons already outlined exemplary damages cannot be characterised as involving double

compensation. Such damages may in a sense constitute a windfall for the plaintiff by reason of the fact that they are not

compensatory in nature. The Court’s discretion to award exemplary damages as necessitated by the circumstances of a case is not

limited by any so-called risk of double compensation. Certainly, as Finlay C.J. pointed out and I have also acknowledged in this

judgment, in certain circumstances the substantial level of compensatory damages may be a factor to be taken into account when

the Court is exercising its discretion as to the amount of exemplary damages necessitated by the need to mark its disapproval of the

defendants conduct but the notion of double compensation has nothing to do with that.

The statement above of O’Flaherty J. was made in the context of a cautionary approach which he correctly felt the Courts should

follow with regard to the award of exemplary damages. However I do not agree that the discretion of the Court in awarding exemplary

damages in a case where it otherwise feels it proper to do so should invariably be constrained by a rule that they be a fraction of the

compensatory, including aggravated, damages awarded. The discretion of a Court to award exemplary damages in the vindication of

rights and as a mark of its disapproval of the conduct of a defendant, should not be constrained in that manner but exercised

according to the circumstances of each case even if in many cases the appropriate award of exemplary damages might well be a

fraction of the overall compensatory damages.

While generally speaking there was no issue as to the principles to be applied in determining the damages to be awarded to the

plaintiff, counsel for the State in this appeal at one point submitted that where outrageous conduct for which exemplary or punitive

damges may be awarded is conduct for which the State is only vicariously liable the level of exemplary damages payable by the State

should be mitigated or restricted by reason of the vicarious nature of the liability.

It was a somewhat tentative submission or at least not one pursued with great vigour. In any event I do not think it is an argument

that requires great scrutiny. As McCarthy J. also said in McIntyre –v- Lewis (cited above), in the context of an award of punitive

damages, “If the liability to damages be vicarious, as the employer of the primary tortfeasor, then the liability is for the entire of the

damages.” Moreover, the State acts through its servants or agents and its responsibility is only engaged when wrongs are committed

by its servants or agents. If counsel’s proposition was correct the Court would be circumscribed in its jurisdiction to award exemplary

or punitive damages appropriate for deliberate and outrageous abuse of public powers by servants of the State. The power of the

Court to make an award for exemplary or punitive damages was clearly set out in Conway –v- INTO. The statement of McCarthy J. is

patently correct. There is no basis in law for limiting the liability of the State to pay exemplary damages by reason only of the

vicarious nature of its liability. To do so would be absurd and contrary to the well-established principles and purpose of such

damages. Indeed in exercising its consitutional function to defend and vindicate the rights of individuals the power of the Court to

award exemplary or punitive damages against the State in appropriate circumstances is, as the decisions of this Court demonstrate,

of fundamental importance.

The quantum of exemplary damages

Not every aggravated or even malicious breach of rights requires an award of exemplary damages. They are not damages to which a

plaintiff is entitled to as a claim of right. It is in principle a matter for the trial Judge in the first instance to determine, in the exercise

of his discretion, whether an award of exemplary damages is necessitated by the special need to achieve or provide for the purposes

which exemplary or punitive damages serve, as outlined above. Not every case of grave or aggravated breach of rights will

necessitate such damages.

I consider that the grounds for awarding substantial exemplary damages in this case are compelling. Those grounds hardly need

further elaboration involving as they did the undermining of the due process of law and inveigling, with perjured evidence, a jury of

citizens, faithfully doing their duty, to convict an innocent man. They have also undermined the reputation of an important State

body, An Garda Síochána. On a number of occasions I have referred above to the especially grave features of the acts committed by

the Garda members in this case. Indeed the case is such an exceptional, egregious one that so manifestly calls for such an award

that it is not a case in which is in any sense borderline or one which required any finer points of law concerning the liability to award

such damages to be argued. Although I agree with the views of McCarthy J. in McIntyre -v- Lewis, that the restriction of exemplary

damages to certain categories of cases as stated by Lord Devlin in Rookes –v- Barnard [1964] A.C. 1129 has no application in our

law, that question does not need to be addressed in this case, if it needs to be further addressed at all. Here we have conduct

particularly necessitating condemnation.

In all the circumstances of the case I am quite satisfied that a very substantial award of exemplary or punitive damages is warranted

against the defendants. In my view it should be in the amount of €1,000,000.00.

The quantum of special damages

The plaintiff’s claim to financial loss focused on loss of earnings from the Point Inn and the loss of capital value of the Point Inn and

the capital value of the caravan park, which is the site across the road from the Point Inn for which the plaintiff had obtained

planning permission for its development as a caravan park.

The plaintiff’s claims for special damages were not straightforward ones for the learned trial Judge to evaluate because of the state of

the evidence and a number of imponderables to which it gave rise.

In the High Court there was at first an issue between the plaintiff and the defendants concerning a causal link between the

circumstances in which the plaintiff was prosecuted, convicted and imprisoned and some of these financial losses. The learned High

Court Judge resolved that issue by concluding that the plaintiff had established a causal nexus between the events of which he

complained and the closing of the Point Inn, the fire there and its sale together with the caravan park by the receiver. The reasons

for his conclusions are set out in his judgment and the liability of the defendants for the financial loss as found by the learned trial

Judge is not challenged by them in this appeal.

What is put in issue by the plaintiff is the amount of the damages awarded by the learned trial Judge for (a) loss of net tax profits at

the Point Inn, for which he awarded €550,000.00 and (b) capital loss in relation to the Point Inn and caravan park for which he

awarded a net sum of €806,221.00. A sum awarded for €12,650.00 legal fees is not in issue.

As regards loss of earnings from the Point Inn, or as it was put in evidence the loss of profits net of tax from it, the learned trial

Judge found that the accountant, Mr. Peelo, who gave evidence for the plaintiff and the accountant, Mr. Jackson, who gave

evidence for the defendant were effectively ad idem as regards the loss of profits up to March 2003, the claim for loss of profits from

the caravan park having been abandoned. Having evaluated the evidence before him the learned trial Judge ascribed a total of

€550,000.00 under this head of damage allowing for damages up to the date of trial. I do not consider that the plaintiff has

established that there was any error in the manner in which the learned trial Judge arrived at this figure. Loss of future earnings did

not arise because of the plaintiff’s claim for capital value of the loss of the Point Inn and the caravan park.

As regards the capital value of the caravan park the plaintiff’s valuer, Mr. Younge, initially placed a value of €400,000.00 which he

revised upwards to €560,000.00 on the basis of comparisons which he made with other caravan parks which had been sold in different

parts of the country. The learned trial Judge accepted evidence that the plaintiff’s site was less attractive than the sites with which

comparisons were made. He also had to take account of the fact that those other sites were sold in a developed state and he had no

satisfactory evidence of the current cost of developing the plaintiff’s site which was undeveloped. He decided to discount the

approach adopted by the defendants’ valuer, Mr. Morrissey, essentially because the evidence required to carry out a valuation

exercise based on such an approach was not before him. Accordingly he adopted the approach of Mr. Younge but reduced his

valuation for failing to take sufficiently into account the differences between the plaintiff’s site and the comparator sites. He also took

into account the fact that any valuation of the caravan park would be influenced by the cost of development at then current figures

and he had no evidence of this. On that basis he attributed a value of €350,000.00 to the caravan park. On the facts found by the

trial Judge he was entitled to come to this valuation and I find no grounds for interfering with it.

As regards the valuation for the Point Inn he was critical of Mr. Younge’s valuation of €1,150,000.00 because the valuer was

misinformed as regards the number of nights per week which the discotheque operated and that was an important element in his

valuation.

The defendants’ valuer, Mr. Morrissey, had approached the valuation of the Point Inn on a different basis, concentrating on turnover.

The trial Judge was in turn critical of this valuation, in particular because it did not take into account any potential for the premises

and also because it took into account the stigma attached to the premises by reason of its licensing history, that is to say, the two

endorsements on the license and the objection to the renewal of the pending licensing application. He concluded that since

prospective purchasers had an assurance that any objection to renewal would not be maintained against a new owner neither of the

latter considerations were likely to affect a purchaser. Mr. Morrissey’s valuation was €630,000.00. The learned trial Judge therefore

decided that he should make some adjustment to the approach of each valuer. He identified the factors which he took into account in

doing so and those which he excluded and in particular gave preference essentially the approach of Mr. Morrissey based on turnover

with some adjustments because of factors which the valuer ought not to have taken into account and his failure to take into account

business potential. On this basis he arrived at a figure of €700,000.00 for the Point Inn. The plaintiff has complained that not enough

was allowed for the potential development of the Inn but the trial Judge’s approach to this element was entirely justified by the

evidence.

This gave a total value of the Point Inn and the caravan park of €1,050,000.00 from which certain figures fell to be deducted. These

figures related to the proceeds of the malicious injury claim made by the plaintiff, the repayment of the grant to the International

Fund for Ireland and payments made to the plaintiff’s creditors. I do not think any criticism can be made in respect of these

deductions. This left a net loss of €806,221.00 in respect of the Point Inn and the caravan park for which the plaintiff was entitled to

be compensated.

In assessing the plaintiff’s losses for loss of profits at €550,000.00 and his loss in respect of the Point Inn and the caravan park at

€806,221.00 the learned trial Judge relied on facts which he was entitled to find on the basis of the evidence before him. Insofar as

he relied on inferences drawn from those facts I am also satisfied that those inferences were reasonable and correct.

Accordingly the plaintiff’s appeal against the learned trial Judge’s findings in relation to special damages fails.

General damages for events prior to 1st October, 1992

This head of damage, described as damages at common law by the learned trial Judge, is confined to the period from 18th April, 1992

until 1st October, 1992 the latter being the date deemed by the learned trial Judge to be the one on which charges were brought

against the plaintiff. The assessment of all other damages related to matters which occurred after 1st October, 1992 and were dealt

with as falling within the ambit of the plaintiff’s claim pursuant to s. 9 of the Act of 1993.

Under this heading the learned trial Judge awarded the sum of €5,000.00 damages to the plaintiff and those damages relate to the

plaintiff’s claim for alleged wrongful conduct on the part of the defendants, their servants or agents, in connection with the searched

and raids on the Point Inn by the Gardaí as well as the roadblocks on the main road from Derry to the Point Inn on a number of

occasions, all of which the plaintiff claimed damaged his business. The claim for damages under this head included damages for

physical damage done to the plaintiff’s premises in the conducting of searches.

As was the case in relation to other heads of damage the findings of fact necessary to determine the issue as to damages is primarily

a matter for the trial Judge having regard to the evidence before him.

As regards the conduct of the Gardaí in relation to the roadblocks, searches and raids of the plaintiff’s premises complained of, the

learned trial Judge concluded that he was not satisfied, on the evidence before him, that the Garda operations were an abuse of

powers or motivated by any improper purpose. He took into account the fact that subsequent events might suggest an improper

purpose and he was perfectly entitled, in his evaluation of the evidence before him, to conclude, as he did, that the plaintiff had not

discharged the onus of proof in relation to these matters. He did however conclude that the breaking of some furniture on the

plaintiff’s premises during the course of a raid and the breaking down of an emergency exit door was wrongful and could not

reasonably be considered incidental to the powers conferred on the Gardaí by a search warrant. In the absence of any evidence being

tendered as to the actual loss sustained by reason of the property being damaged his assessment of €5,000.00 under this head

seems to me entirely reasonable. I would uphold that finding.

Conclusion

In conclusion I would allow the appeal of the plaintiff on the issue of damages and find that the damages to which he is entitled to

recover from the defendants may be summarised as follows:

1. General damages (pre-October 1992 claim): €5,000.00

2. General damages including aggravated damages (post-October 1992 claim): €2,250,000.00

3. Exemplary damages: €1,000,000.00

4. Special damages :

a. Legal Fees €12,650.00

b. Loss of profits at Point Inn €550,000.00

c. Loss of Point Inn and caravan Park €806,221.00

Accordingly I would allow the appeal and substitute an award of a total of €4,623,871.00 to the plaintiff against the defendants.