Family fail to prove malicious prosecutions in case of dispute over cow dung



Two siblings have had their action for malicious prosecution and false imprisonment dismissed by the Supreme Court, who found that the facts did not support their allegations.

The siblings, Stephen Murphy junior and Ann Murphy, had brought an action claiming malicious prosecution following years of ongoing dispute with their neighbours the McCarthys, who they alleged had purposefully driven their cattle past their home, and allowed excessive cow dung to be left around their home.

This dispute had led to incidents on the road outside their home, resulting in prosecutions for public order offences against the siblings and their father. Some of these had subsequently been overturned, and some had been quashed in judicial review proceedings.

Their action for malicious prosecution was initially dismissed by the High Court in 2003. The siblings appealed, representing themselves.

It was observed by Mr Justice Peter Charleton, that the notice of appeal was “a narrative which does not differentiate between the wrongs allegedly done to the plaintiffs and is unspecific as to times…generally agitating the unfairness of the court system and nastiness of the gardaí in respect of all of the prosecutions.”

A large part of the claim related to the allegation that a member of the gardaí, Garda McCarthy, was a close friend of the McCarthy family (although not related) and that the Murphys had been victims of malice.

The judge observed that while patience must be exercised when dealing with lay litigants, they were no more entitled to use disproportionate resources from the courts than any professionally represented litigant and while, in that context, case management may usefully be engaged by a judge at an early stage, all litigants are required to state the essence of their case and cannot attract unlimited indulgence; Talbot v Hermitage Golf Club & Others IESC 57.

He then turned to the facts. On 27 June 1996, there were a series of incidents where the gardaí were called to intervene, as Stephen Murphy senior and Ann Murphy were preventing the McCarthys from moving their cows down the road in front of the Murphys house.

Ann Murphy alleged that these incidents resulted in her being forcibly kept in her home by the gardaí, resulting in a claim of false imprisonment.

There were also incidents that day, involving Stephen Murphy junior, at which no gardaí were present.

Following these incidents, Ann Murphy was prosecuted under theCriminal Justice (Public Order) Act 1994 with unreasonable behaviour, contrary to s.5; acting so as to give rise to an apprehension for the safety of persons or property and failing to desist having been so directed by a Garda, contrary to s.8; wilfully preventing the free passage of a person or vehicle, contrary to s.9; using threatening behaviour or insulting words with intent to provoke a breach of the peace or being reckless in that regard, contrary to s.6; and common assault.

Of these, the majority were either overturned on appeal or quashed through judicial review, resulting in only the conviction for threatening behaviour being upheld.

Stephen Murphy junior was also prosecuted for various similar offences, however, some of these charges should not have been brought, as Stephen Murphy junior had never been in the presence of the gardaí.

This had happened because the words “Stephen Murphy senior” which were written in hand by the gardaí were transcribed by a typist as “Stephen Murphy junior”.

The actual report by Garda McCarthy to his superintendent unthinkingly recommended prosecutions against Stephen Murphy junior for precisely the same offences as against Stephen Murphy senior, including offences contrary to s.5 and s.8 which required there to have been a direction by a garda to desist or to desist and leave.

This, the judge noted, was not impressive. He then considered whether there was a legal redress in respect of malicious prosecution in respect of false imprisonment.

Firstly, the judge observed that Ó Caoimh J in ruling on the case and in the confusion of the plethora of unsustainable arguments floated by the Murphys did not have the chance to discover these errors. Secondly, it only emerged in the High Court that an error in transcription had been made and that the effect of it was not brought expressly to the attention of the trial judge. The evidence was that the gardaí only became aware of the error while before the High Court. The trial judge accepted that. Nonetheless, two inappropriate prosecutions were unthinkingly proceeded with in the absence of any appropriate consideration.

While the Murphys had alleged that all the prosecutions were activated by malice, the judge found that this could not be the case as some of the prosecutions had been justified.

Further, it could not be said that Garda McCarthy’s relationship with the McCarthy family amounted to such a close friendship that he would be unable to exercise independent and bona fide judgment.

In relation to the claim of false imprisonment, it was noted that this could be defined as “the act of arresting or imprisoning any person without lawful justification, or otherwise preventing him without lawful justification from exercising his right of leaving the place in which he is.”

The judge observed that “Clearly, no one would be taking a writ of habeas corpus simply because they cannot get out on the public roadway for a time and that to leave their house they have to proceed through the back garden and through a neighbour’s fields. That, in essence, is the complaint made by Ann Murphy.”

In relation to the claims of malicious prosecution, the essentials were identified as being:

1. The proceedings must have been instituted or continued by the defendant;

2. He must have acted without reasonable and probable cause;

3. He must have acted maliciously;

4. The proceedings must have been unsuccessful – that is to say must have been terminated in favour of the plaintiff now suing.

The judge found that “Here, there is clear evidence of at least some entirely justified charges. There is no evidence that incorrect charges were maliciously tagged on to these by the gardaí. There is an absence of anything from which it might be inferred that mistakes were knowingly made. Instead, there is evidence of some carelessness in choosing charges and of a predictable but unfortunate typing error. There is no evidence of malice by Garda McCarthy. If possible, where crimes need investigating, it is good practice to ensure that the appearance of objectivity is maintained. In a small rural area, that can be difficult. No more than that was involved here.”

Thus, while Stephen Murphy junior was entitled to his costs, as he had been required to come all the way to the Supreme Court before the error in his prosecutions was identified, the other allegations were not made out.

  • by Rachel Killean for Irish Legal News