THE SUPREME COURT
[S:LE:IE:2014:000411]
Clarke C.J.
O'Donnell J.
O'Malley J.
PAUL REID
Plaintiff/Appellant
- and -
THE COMMISSIONER OF AN GARDA SÍOCHÁNA, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND, AND THE ATTORNEY GENERAL
Defendants/Respondents
Judgment of O'Donnell J. delivered the 10th day of April, 2019.
1 This unusual case raises important points about the proper approach to be taken to claims of false imprisonment and trespass to the person arising out of an arrest made on foot of a warrant issued, apparently lawfully, but erroneously. The issue as it arises in this case must be approached, however, through the preliminary question of the test that a trial judge sitting with a jury should apply when invited to withdraw the case from the jury at the conclusion of the evidence.
2 On 20 May 2010, an incident occurred at the Northside Shopping Centre in Dublin when a sports jersey was alleged to have been stolen from the Life Style Sports shop. An individual was arrested, charged in connection with that offence, and was released on bail and required to attend court at District Court No. 2, Criminal Courts of Justice, Parkgate Street, Dublin 8, at 10.30 a.m. on 10 June 2010. The person arrested and charged in connection with the offence gave his name as Paul Reid, and his address as 81 North William Street Flats, North Strand, Dublin, and, significantly, provided a date of birth. The person charged did not attend court on 10 June 2010 and, accordingly, a bench warrant (being a warrant to arrest a person accused and remanded on bail who fails to appear in court) was issued by the judge of the District Court. This in itself was far from unusual: bench warrants are often issued, particularly in the District Court, and their execution is a relatively standard part of the work of the Gardaí.
3 Eight months later, on 9 February 2011, at around half an hour past midnight, the appellant, Mr. Paul Reid, was sitting with his partner, Ms. Jean Burns, in the apartment they shared on the second floor of 87 The Quay, Waterford. They were watching television. Mr. Reid was born in Dublin, and the address on the warrant was his mother's address, where he did not live, but which he sometimes used. The date of birth which had been given to the Gardaí at the Northside Shopping Centre in May was, indeed, his date of birth. There is, however, no dispute that he was not the person arrested at the Northside Shopping Centre who failed to attend court on 10 June 2010. It is plain that the person arrested clearly knew enough about the appellant to give an address associated with him and his date of birth. While nothing turns on it for the purposes of this appeal, it appears from some of the evidence given that it is likely that the person was his brother. One further strange feature of this case is that this is not the only occasion on which the appellant has been the victim of what might be described as "identity theft". It appears that his name and address have been used by others in relation to court appearances and, even more seriously, in a false application for passport.
4 There is much that is unclear in this unusual case, but it does appear that in the course of 8 February 2011, Garda Joyce in Waterford checked the PULSE system in relation to the residents of an old building converted into flats at 87 The Quay, Waterford, one of whom was the appellant, and found the bench warrant from 10 June 2010. Two members of An Garda Síochána, Garda Joyce and Garda Corcoran from the Warrants Office, went to the premises that evening, sometime around midnight, to execute the warrant against the appellant. As they approached the building, the door was opened and, as a result, they gained access to the building generally. They then went to the appellant's apartment and knocked on the door. There is a clear dispute as to what exactly transpired thereafter. The appellant maintains that he heard one knock and told his partner not to answer it because he thought it was the people upstairs who, particularly in the evening, were in the habit of looking for things from the appellant and his partner. He agreed with his own counsel that the building was a messy place. The appellant's evidence was that the next thing that occurred was that the door was kicked in and the Gardaí came into the apartment, shining torches, and arrested him. He maintained that if the people at the door had identified themselves, he would have opened it:-
"If they would have said they were guards I would have opened it. I had no reason not to open it. I never heard them saying that it was the guards. If I would have heard it was the guards I would got up and opened the door. I would have been surprised why they are knocking at that hour of the night but, do you know what I mean?" (Transcript of Hearing, High Court, Day 1, 30 April 2014, p. 36, Q. 55).
5 The Gardaí, for their part, gave evidence that they repeatedly identified themselves, announced that they had a bench warrant, knocked again, repeated who they were, and knocked once more. They could see there was someone in the flat. At that point, in the words of Garda Joyce, it was said through the door:
"…look, we are here with a bench warrant for Paul Reid. This warrant entitles me to enter the premises by force if needs be. That means your door will be put in and I will not have the expense of having it repaired. It will fall to you because I'm acting on a legal document and there was still no answer." (Transcript of Hearing, High Court, Day 2, 1 May 2014, pp. 46-47, Q. 170).
At that stage, Garda Joyce said that he distinctly remembered saying:- "…look you're leaving us with no choice but to actually put in the door" (Transcript of Hearing, High Court, Day 2, 1 May 2014, p. 47, Q. 174).
That, he said, was something that Gardaí did not do lightly, because there could often be an issue with landlords and their superior officers asking them why they had put in the door when they were not sure the person was there. This evidence was largely supported by Garda Corcoran. The trial judge observed during the cross-examination of the appellant that:- "[The] whole details surrounding…[the circumstances of the arrest] are very much in conflict apparently." (Transcript of Hearing, High Court, Day 2, 1 May 2014, p. 19).
6 Once in the apartment, it appears that the appellant's date of birth was established, which appeared to match the date of birth on the charge sheet which was attached to the warrant. The appellant was then arrested and handcuffed. There was quite a calm exchange and the appellant maintained that it was a case of mistaken identity. The Gardaí agreed that the exchange was amicable. In the words of Garda Joyce:- "Again there was no struggles, there was no anything, it was perfectly amicable I suppose you'd call it. He came down the stairs and all the way down he was protesting that I had the wrong person. But again I sort of said to him, look, Paul, I said, you've admitted you're Paul Reid, you've admitted that is your family home address, you have admitted that is your date of birth, I said I don't think there are two Paul Reids the same you know." (Transcript of Hearing, High Court, Day 2, 1 May 2014, p. 51, Q. 191).
Under cross-examination, Garda Joyce agreed that the event was not confrontational, there was no aggression on either side, and it was very amicable. He said that this remained the position and continued during the car journey to the Garda station (Transcript of Hearing, High Court, Day 2, 1 May 2014, p. 77, Q. 337 to Q. 340).
7 It is common case that the appellant protested that the warrant was a case of mistaken identity. Indeed, Garda Joyce gave evidence that he was inclined to believe the appellant when he denied being the person the subject of the warrant, and gave evidence that there was a discussion as to who it might have been that would have given his name. It was suggested by the Gardaí that the appellant said that it must have been his brother. In an exchange with the trial judge, Garda Joyce confirmed his evidence that he was inclined to believe the appellant when he said it was mistaken identity:-
"Judge, in talking to him coming up in the car that night, that was when I really would have formed my opinion but in saying that, people, as I clarified earlier, people would often say to me when I had arrested them, look, Guard it wasn't me, so I can't be sure, I can't be certain and I have no way of actually verifying at that hour of the night.
Judge: But in the car you became, you were inclined to believe him?
A: In the car I sort of, you know, well, I was feeling that there may be something in it you know because our whole dealings, Judge, were not in any way confrontational or anything like that.
Judge: Yes you said it was amicable.
A: He wasn't getting excited. We weren't excited. We were just doing what we had to do, you know, and that was it." (Transcript of Hearing, High Court, Day 2, 1 May 2014, pp. 87 to 88, Q. 394).
Garda Corcoran confirmed this evidence:- "…Mr Reid did protest that it wasn't him on the warrant. It wasn't him involved in the actual case. The more he protested the more Garda Joyce and myself were inclined to believe that it wasn't him. It wasn't usual. It wasn't a hard man denial. It was a case of we felt that he was heartfelt that it wasn't him." (Transcript of Hearing, High Court, Day 2, 1 May 2014, p. 93, Q. 424).
8 The appellant was detained in Waterford Garda Station overnight and brought before Waterford District Court the following morning. Normally, it is the case that persons arrested on bench warrants are remanded in custody because they have, by definition, failed to attend court even when required to do so by law and that would normally establish a sound basis for believing that there was a real risk that they would not attend court voluntarily on the next occasion. However, it was a measure of the extent to which the Gardaí considered that it was unlikely that Mr. Reid was the person for whom the warrant had been issued that they did not object to bail. Again, this was explained by Garda Corcoran:-
"I was there when he [Garda Joyce] was speaking to the solicitor and the Judge and it was told to the Judge that we were unsure as to the bona fides of the warrant that this man said it could be somebody else not him and therefore we agreed to bail. Normally in a case like this we would object to bail. We are obliged to object to bail and we would object to bail. We didn't object to bail because we were fairly, well, we suspected it could be a different person." (Transcript of Hearing, High Court, Day 2, 1 May 2014, p. 94, Q. 428).
9 The appellant, having been released from custody, was remanded to court in Dublin on 15 February 2011. However, on that occasion, the prosecuting Garda did not attend, and the appellant's case was adjourned, again, to 15 March 2011. It was only on 5 April 2011 that the prosecuting Garda appeared and confirmed that the appellant was not the person arrested in the Northside Shopping Centre. The charge was finally struck out on that date. The appellant later commenced these proceedings.
10 The appellant contends that this experience had a psychological impact upon him. It was also alleged that the incident had a damaging effect on his relationship with his ex-partner, who he contended had relied on the fact that he had been arrested as a basis for seeking to refuse him access to his two-year-old daughter. Unfortunately, this contention led to some further bizarre twists in the case, in which the court found itself drawn into evidence of a very bitter dispute then ongoing in the family law courts between the appellant and his ex-partner. His ex-partner gave evidence in these proceedings. In particular, it was put to the appellant that he had even denied paternity in relation to the daughter to whom he claimed he had been denied access. In the event, this allegation appears misconceived, and from correspondence later shown to the court, it appears that the appellant believed his former partner had denied paternity, and the appellant had gone to the lengths of seeking a court-ordered blood test to put his paternity beyond doubt. It was an unfortunate feature of the case that it became so intertwined with the bitter dispute between these parties. The judge dealt with this with commendable common sense and sensitivity (as, indeed, he displayed more generally throughout this unusual case), while observing, however, that the appellant had introduced the issue of his access to his daughter, and therefore it had to be explored to some extent. In the event, it appeared that the arrest and detention of the appellant had not been relied on as a basis for refusing or denying or otherwise limiting the appellant's access to his daughter, as the appellant had claimed, but that there were other acrimonious points of dispute which had arisen in relation to access. Cases often take unexpected turns, and neither the trial judge nor the parties can be criticised for failing to have anticipated the complications which arose in this unusual case. However, it was indeed regrettable that the sometimes embarrassing details of a private dispute between parties in relation to custody of, and access to, a young child came to play such a prominent role in these public proceedings.
11 The appellant's claim, put in colloquial terms, was that something had happened to him which resulted in a deprivation of liberty and which ought not to have happened. There are a number of different ways in which this claim was sought to be advanced as a matter of law. The appellant relied in part on the decision of the Supreme Court in Walsh v. Ireland (Unreported, Supreme Court, Hamilton C.J.; Egan, Blayney, Denham, and Carroll JJ. concurring, 30 November 1994), which similarly involved the execution of a warrant against someone who was not properly the subject of it. In that case, however, there was a difference in that there was a defect on the face of the warrant: it authorised the arrest of Kevin Walsh of 30 South Brown Street, Dublin 8. The arresting Garda knew that there was a Walsh family living at 32 South Brown Street, and went to that address for the purpose of effecting the arrest of Mr. Walsh. On arrival, the Garda was informed by Mr. Walsh's mother that he did not live, and never had lived, at that address, but rather lived at 269 St. Teresa's Gardens, Dublin. The plaintiff, who lived at that address, was arrested. He recovered £50,000 in damages in the High Court. The Supreme Court dismissed an appeal on liability, but reduced the damages to £25,000, holding that:-
"This was not an arrest in accordance with the terms of the said warrant. The Respondent was not the person referred to in the said warrant and did not reside at the address given in the said warrant".
The court further held that no issue arose under the provisions of s. 50 of the Constabulary (Ireland) Act 1836, because what had been done had not been done "in obedience to the warrant". The appellant also relied on the then recent decision of this court in Director of Public Prosecutions v. Cullen [2014] IESC 7, [2014] 3 I.R. 30 in relation to the use of handcuffs on arrest, in which the court, by a majority (Fennelly and Hardiman JJ. concurring; Clarke J. (as he then was) dissenting) that the use of handcuffs pursuant to a blanket policy of applying handcuffs to an arrested person, without regard to the circumstances, was unlawful, and furthermore invalidated the arrest. This, accordingly, had the consequence that evidence of a breath sample could not be admitted because, by the terms of the statute, such a sample could only be taken from a person who was arrested. As noted on the hearing of this appeal, that decision has itself been the subject of further consideration by this court in Director of Public Prosecutions v. Pires, Corrigan, and Gannon [2018] IESC 51, (Unreported, Supreme Court, Dunne J.; O'Donnell, MacMenamin, O'Malley, and Finlay Geoghegan JJ. concurring, 23 October 2018). In addition to these matters the appellant also contended that his detention amounted to false imprisonment.
12 At the close of the respondents' evidence in the High Court, Hedigan J. raised the question of formulating some questions for the jury. At that point, counsel for the respondent indicated that he had legal submissions to make, which were then advanced, and concluded with the submission that there was no case to go before the jury because, it was argued, the evidence, even taken at its height, was not capable of establishing any cause of action. Counsel for the appellant replied, and the judge reserved his decision overnight and delivered a ruling the following day which was recorded in a clear and concise written judgment of 9 May 2014 ([2014] IEHC 246).
13 In his judgment, the trial judge correctly observed that he should approach the application on a consideration of the facts most favourable to the appellant. It was only if no jury properly instructed could find in favour of the appellant that it would be appropriate to withdraw the case from the jury at that point.
14 On the question of the arrest of the appellant, he concluded that it was made on the basis of a warrant lawfully but erroneously issued, and no fault, (and presumably, therefore, no liability) attached to the Gardaí or the District Court. He also took the view that no possible claim could arise because of the delay in executing the warrant. The issuance of a bench warrant was a significant event, but many such warrants were issued each year, and its issuance need not trigger a national manhunt so that, if not executed within a short time after the date of issue, any arrest would be unlawful. In this regard, he referred with approval to the decision in Dunne v. Director of Public Prosecutions (Unreported, High Court, Carney J., 6 June 1996). He considered that the use of the handcuffs could not be considered unreasonable in circumstances where the Gardaí were arresting a person believed to be "in flight from the law" and where the appellant had failed to answer a knock on the door. Similarly, on the question of malicious prosecution, he considered that, while there had been an unacceptable delay in resolving the issue of identity, that in itself could not amount to a malicious prosecution. Further, on the assumption that the arrest itself was valid, he considered that there could be no question of false imprisonment.
15 A central issue in dispute was, however, the circumstances under which the apartment was entered, and the arrest effected. The judge considered that, on the most favourable view of the appellant's case, it could not be said that unreasonable force was used. In this regard he said the following:-
"(b) The use of unreasonable force.
On the plaintiff's evidence, the gardaí knocked on the door of his flat and he decided not to answer. He says he did not know they were gardaí. Outside the flat at the time, the gardaí were present with a bench warrant for the plaintiff who lived in that apartment and who was, in fact, present in it. By definition, the bench warrant was in respect of a fugitive from justice i.e. a person in flight from the law. Were the gardaí to tamely withdraw? Hardly. Did they do so, they would have been ignoring a clear command by the Court to arrest the person named on the warrant i.e . the plaintiff and bring him before the Court. In breaking into the apartment, on the plaintiff's own evidence, the gardaí were using the only means open to them to effect an entrance and execute the warrant.
No legal basis for unlawful arrest arises in this regard."
16 In this appeal, the appellant does not contest the finding that the arrest itself was justified by the warrant, and furthermore that no issue arises under s. 50 of the Constabulary (Ireland) Act 1836. Accordingly, it is not necessary to consider in detail the decision of this Court in Walsh v. Ireland (Unreported, Supreme Court, Hamilton C.J.; Egan, Blayney, Denham, and Carroll JJ. concurring, 30 November 1994), or the contrasting views expressed in the Court of Appeal in Northern Ireland and the House of Lords in the somewhat similar case of McGrath v. Chief Constable of the Royal Ulster Constabulary [2001] UKHL 39, [2001] 2 AC 731. It is also unnecessary to examine whether there are any circumstances in which the arrest of a person wrongly named on a warrant might give rise to a cause of action. Nevertheless, the possibility of a mistake as to name or, as here, a situation where a deliberately wrong name might have been given to the Gardaí and where the appellant maintains, apparently plausibly, that he is not the correct person, is all part of the background information by reference to which the reasonableness of the actions of the Gardaí in entering the apartment and arresting the appellant using handcuffs to detain him may be assessed.
17 The lawfulness of an arrest may, as in this case, arise in civil proceedings, but it arises more commonly in criminal proceedings where it is sought to challenge an arrest, not for its own purposes, but rather with a view to excluding evidence consequent to a lawful arrest. Examples of the latter occur in road traffic cases such as Director of Public Prosecutions v. Cullen [2014] IESC 7, [2014] 3 I.R. 30, where certificate evidence of breath, blood, or urine samples depends upon the sample being taken from an arrested person, or a person who is detained in custody as a result of an arrest. It is worth observing that the outcome is not necessarily identical in both cases, both by reason of the test which is to be applied in criminal law as opposed to civil law and, also, because it is possible that, although evidence obtained following an unlawful search or arrest may be found admissible in criminal proceedings, the same facts may nonetheless give rise to a claim for damages. It would be useful if the law could distinguish clearly between the question of the lawfulness of arrest and the admissibility of evidence. Here, we are concerned only with the question in civil law as to whether the appellant can maintain a claim for damages arising out of the entry of his apartment by the Gardaí, and his subsequent arrest and detention.
18 There is no doubt that the law precludes the use of unreasonable force in effecting entry or making an arrest and detaining a person. However, assessing the reasonableness of the conduct of the Gardaí in any particular case cannot involve a minute measuring and weighing, in the comfort of a courtroom, quite some time after the event, of what happened with the benefit of hindsight and when all the relevant facts are known. The test must be addressed from the perspective of the Garda or Gardaí executing the warrant or effecting the arrest in the circumstances which applied as they knew or believed them to be at the time. The test of reasonableness means that a trier of fact, whether a judge or jury, should be slow to second-guess the operational conduct of Gardaí carried out in real time, and in sometimes rapidly changing circumstances, which may be confused, unpleasant, and sometimes dangerous. As observed by McKechnie J. in The People (Director of Public Prosecutions) v. Byrne [2011] IECCA 105, (Unreported, Court of Criminal Appeal, McKechnie J; Murphy J and O'Keeffe JJ. concurring., 13 December 2011), at para. 33:-
"Context is an important determinative in this regard, bearing in mind that the same may be part of an active and ongoing operation being mounted by the gardaí. Take for instance the situation where armed criminals are hiding in a dwelling house owned by one of them. Could [ The People (Director of Public Prosecutions) v. Laide [2005] IECCA 24, [2005] 1 I.R. 209] possibly be relied on to suggest that the door should first be knocked at or the doorbell rung? We think not. Surprise may be the essence of the operation. We therefore cannot accept any suggestion, that operational needs as a matter of principle could not also give rise to a necessity for forced entry, if on assessment, that can be objectively justified."
19 There is no simple rule of thumb that can be applied in every case to determine reasonableness; it is, instead, a question to be assessed by reference to the circumstances as they existed, seen from the perspective of the executing Gardaí, and taking full account of the uncertainties of the situation. Furthermore, it should be kept firmly in mind, as observed by the trial judge, that the object of a warrant is to secure the searching of premises or the arrest of a person, as appropriate, and no test should be promulgated that leads the Gardaí, or other persons executing a warrant, to fail to achieve that object so that premises are not searched with the result that evidence is not obtained, or an arrest not made, or, where made a person, although arrested, is not detained.
20 Nevertheless, it is helpful to recall that the starting point upon which the common law is based, which is embodied in the constitutional order, is that it is necessary to have laws to provide for warrants and other legal authority to enter premises and to have legal provisions such as those contained in the Constabulary (Ireland) Act 1836. The entry onto premises without consent or invitation or lawful authority is a trespass: a forcible entry is clearly so; an arrest is a trespass to the person, a battery, and an assault; and a detention without lawful justification is false imprisonment. Any such action in the nature of entry onto premises (in particular a dwelling), of interference with the person, or the restraint of liberty, therefore requires lawful authority and justification. This is so whether the matter is viewed by reference to the civil liberties historically protected by the common law, the interest protected by the European Convention on Human Rights, or most obviously, the Constitution of Ireland. It is, indeed, instructive to consider how the same circumstances were analysed differently by reference to common law principles in the decision of the Court of Appeal of England and Wales in Keegan v. Chief Constable of Merseyside [2003] EWCA Civ 936, [2003] 1 WLR 2187, and by reference to human rights principles when the same issue reached the European Court of Human Rights in Keegan v. United Kingdom (App. No. 28867/03) (2007) 44 EHRR 33. These cases were not referred to in argument, and are, in any event, peripheral to the issues which arise in this case, and I mention them here only for the purposes of illustration. The fact remains, however, that it is necessary to remember that the appellant in this case was a citizen with such rights at common law, by statute and under the Constitution, which latter rights the State had guaranteed to respect. He was wholly innocent of the criminal offence giving rise to the issuance of the warrant, and, moreover, was not the person against whom an accusation of criminal conduct had been made, giving rise to the requirement to attend in court, the failure to attend, and the issuance of the bench warrant in question. The law exists to permit the identification, prosecution, and punishment of those found guilty of criminal offences. However, it also protects private citizens going about their business from being arrested and detained without just cause, and from having their home entered by force without lawful justification.
21 There are a number of features in this case which could usefully be taken into account:
(i) The appellant, although Paul Reid, did not live at the address on the warrant and there was no reason to believe he had a connection to it;
(ii) His name is not unusual;
(iii) The warrant was a bench warrant, which is regularly issued and can be issued in a wide variety of circumstances;
(iv) The warrant was eight months old and had not been executed;
(v) There had been no attempt to execute the warrant or even make enquiries in relation to it at the address on the warrant;
(vi) The appellant was living openly at his address at Waterford and was therefore available to be arrested at any time during the day;
(vii) The Gardaí secured entrance through the external door: the relevant events occurred at an internal door within an apartment building;
(viii) On the appellant's account, the Gardaí did not identify themselves as such or state that they had a warrant authorising his arrest; and
(ix) The appellant was not combative or belligerent, but maintained from the outset that he was not the person on the warrant.
22 Turning to the question the judge posed in the course of his ruling as to what was to follow when the appellant, on his own account, did not answer the knock at the door, I do not think the option was a binary one between simply tamely withdrawing from or forcibly entering the premises. An obvious, and normally necessary course, was for the Gardaí to identify themselves as such and to indicate that they had a warrant authorising entry, if necessary, by force. In addressing the matter in this way, I do not wish to lose sight of the important fact that this is indeed exactly what the Gardaí said they did, but because the issue was addressed on the respondents' application to withdraw the case from the jury, the evidence must be assessed from the point of view most favourable to the appellant's case. This means that, for this purpose at least, the court must proceed on the basis that the jury might accept the appellant's evidence that there was simply a knock on the door and subsequently a forced entry.
23 The respondent seeks to address this issue by contending that, since the appellant had not opened the door to the knock which he acknowledged he heard, it followed that no other step was necessary, because even if such a step had been taken, the appellant would not have opened the door. The point was put succinctly in the respondents' written submissions in this way:-
"The appellant's argument on this issue is to no point. The question whether reasonable force was used by the gardaí must be tested on the facts evident to them . The essential facts were uncontested: visible presence at the property and a refusal to respond to knocking. The appellant's admitted intention not to answer at all in any event, means that he cannot claim the benefit of extended knocking which he asserts did not occur. The appellant himself makes the dispute of facts which he relies on, irrelevant."
24 It should be noted that the appellant did not give evidence that he did not intend to answer "at all in any event": rather, as set out above, he said that he would have opened the door if they had said they were members of the Gardaí. It is plain, in any event, that this contention is, at best, speculation and cannot remove the fact that there was a conflict of evidence on a relevant matter, which was an issue for the jury to resolve. In those circumstances, the matter ought not to have been withdrawn from the jury, but ought, rather, to have been determined by it. Indeed, this unusual case was, quintessentially, a matter which would have benefitted from the common sense a jury would bring to bear on the evidence. It is routinely said that the pages of a transcript cannot bring a case to life. That is true, but it is often a matter of degree. There are many cases where a transcript gives a very clear flavour of what transpired. But, in this case, the distance between the printed word and the reality of what occurred in court is obvious. This is a case in which there are some areas where only a limited amount evidence was given when more might have been expected, and others where it might be thought that evidence given was at some distance removed from the core of the case. While, at one level, it might be said that there was a limited area of dispute for the jury to resolve, the fact is that that exercise may have involved a consideration of much broader issues in relation to the credibility of the appellant, the view the jury formed of him in the light of the extended information given about his domestic dispute, the demeanour of the parties, and the atmosphere in court.
25 As I have already observed, the jury would have been fully entitled to accept the Gardaí's evidence and conclude that this was a trivial case, and that there was nothing unreasonable about what the Gardaí had done, given the fact that they had a warrant which authorised the arrest of the appellant. Even if the jury believed the appellant and concluded that the Gardaí acted precipitately and unreasonably, unless they considered that there had been a high-handed abuse of power and that the case was one for the award of exemplary or punitive damages, it is not apparent that compensatory damages would be in any way significant. This is all the more so if it is accepted, first, that the appellant could lawfully have been arrested pursuant to this warrant, and second, that such matters should be taken into account in the assessment of damages, which is a matter which would require to be addressed in argument (see the discussion of R(Lumba) v. Home Secretary [2011] UKSC 12, [2011] 2 WLR 671 in G.E v. Commissioner of An Garda Síochána [2018] IEHC 293 in respect of which (at the time of writing) an appeal has been lodged in the Court of Appeal). Any trauma the appellant might be found to have experienced might have to be viewed against the inevitable inconvenience and distress that would follow on a lawful arrest, even if, as here, it was a case of mistaken identity or where the Gardaí were deliberately misinformed as to identity. These are, however, matters which must be resolved in the court of trial in the light of the developed case law if the matter cannot be resolved between the parties. For the moment it is sufficient to conclude that there was a relevant issue of fact which was for the jury to resolve and accordingly the Defendant could not satisfy the test for withdrawing the case from the jury. I would allow the appeal, set aside the order of the High Court, and remit the matter to the High Court for a full hearing.
