High Court: Minister for Justice did not apply correct legal test when refusing to authorise Garda’s compensation claim

About this case:

• Citation:
  [2018] IEHC 530
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Max Barrett

Remitting the matter to the Minister for fresh consideration, Mr Justice Max Barrett said that it was not for the Minister to question whether the injuries were in fact maliciously inflicted, and that it flew in the face of  fundamental reason and common sense to conclude that there was not even a stateable case that the prisoner engaged in deliberate and/or reckless actions when inflicting the sergeant’s injuries.

Background

The applicant, Sergeant Shane Devlin, is a retired Garda sergeant who was formerly stationed at Cavan Garda Station. In July 2013, he was performing prisoner escort duties at Virginia District Court, and in the course of restraining a prisoner, he suffered and sustained significant personal injuries.

In September 2013, Sergeant Devlin continued to be in considerable pain and went on sick leave – in his memorandum to the superintendent at this time, Sergeant Devin explained that the prisoner began to strike himself with clenched fists and bang his head on the table, and that while standing beside him, the prisoner’s ‘weight shifted and landed on the side of my right knee’. Sergeant Devlin stated that he did not believe this to be a malicious act on the prisoner’s part, and although he felt pain in his knee he continued to calm the prisoner.

Sergeant Devlin said that he believed the pain would pass and that he continued to work, but that his condition had not improved at this point and his GP prescribed medication and rest, requiring him to take a week of sick leave.

Question of Malice?

In October 2013, Sergeant Devlin sought compensation under the Garda Síochána (Compensation) Acts 1941 and 1945.

In respect of non-fatal injuries, s.2(1)(c) of the Garda Síochána (Compensation) Act 1941 provides that the Acts apply “to personal injuries (not causing death) maliciously inflicted …on a member of the Garda Síochána…(i) in the performance of his duties as such member while actually on duty”.

Sitting in the High Court, Justice Barrett explained that the issue at the centre of the present application was whether the personal injuries inflicted on Sergeant Devlin in the performance of his duties were ‘maliciously inflicted’.

Conferring powers on the Minister for Justice and Equality, s.6 of the Garda Síochána (Compensation) Act 1941 states that in respect of injuries causing death which are not minor, the minister shall authorise the applicant to apply to the High Court.

In June 2016, an officer in the Policing Division of the Department of Justice and Equality made the internal recommendation that Sergeant Devlin’s claim be refused because it failed to meet the statutory requirements – in particular it was stated that the Minister can refuse an application if there is ‘no prima facie case of malice’ (Donovan v The Minister for Justice [1998] IEHC 208 considered).

Another member of the department official added a case-note to the file reiterating Donovan and agreeing with the recommendation to refuse.  

As such, a letter of refusal was sent to Sergeant Devlin in July 2016. The letter cited Donovan, and stated that the term ‘malicious’ referred to in the Garda Síochána (Compensation) Act 1941 meant ‘…an intention to inflict injuries to a Garda or at least recklessness as to whether injury would be inflicted’.

Application for Judicial Review

In the High Court, the principal reliefs sought by Sergeant Devlin were:

• (i) An order of certiorariquashing the Minister’s decision to refuse to authorise Sergeant Devlin to apply to the High Court in accordance with the Garda Síochána (Compensation) Acts 1941 and 1945, the said decision being alleged to be ultra vires;
• (ii) In the alternative or, if necessary, a declaration that the decision communicated to Sergeant Devlin is null and void and of no effect;
• (iii) A declaration that the Minister’s decision amounts to an improper and unlawful interference with Sergeant Devlin’s right of access to the courts;
• (iv) A declaration that the Minister’s decision is at variance with the statutory scheme as made and provided for under and by virtue of the provisions of the Garda Síochána (Compensation) Acts 1941 and 1945, in particular s6(1)(b)(iii) of the Act of 1941;
• (v) A declaration that the Minister has no power or function in and about the determination of ‘malice’ and has no power or function in and about the determination or making of any decision, concerning any injuries inflicted on a member of An Garda Síochána regarding malice, as this is a matter exclusively reserved for the High Court.

In considering the decision, Justice Barrett said that it did not appear that the correct legal test was ever brought to bear by the Minister in deciding Sergeant Devlin’s application – and that this  alone would suffice for an order of certiorari .

Additionally, Justice Barrett said that Sergeant Devlin separately succeeded in any event in vaulting the high bar of showing that the decision of the Minister on his application “plainly and unambiguously flies in the face of fundamental reason and common sense”.

Justice Barrett explained that the definition of “maliciously inflicted” requires that there be “some deliberate or reckless act done by the culprit which constituted a physical attack or at least a threat of a physical attack on the member of the force” – and that it flew in the face of  fundamental reason and common sense to conclude that there was not even a stateable case that the prisoner engaged in deliberate and/or reckless actions that constituted a physical attack or at least a threat of a physical attack on Sergeant Devlin

Furthermore, it was clear from Donovan that “if there is a stateable case, the Minister is not concerned with the question of whether there was in fact malice”. Whether the September 2013 memorandum to the superintendent would present a difficulty for Sergeant Devlin in future would fall to be decided at a future compensation hearing.

Granting an order of certiorari, the matter was remitted to the Minister for fresh consideration.

• by Seosamh Gráinséir for Irish Legal News