REILLY v. IRELAND
Inadmissible
Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
1. The applicant, Raymond Reilly, is an Irish national who was born in 1966 and lives in Dublin. He is represented before the Court by Mr C. Crowley, a lawyer practising in Dublin. The Government were represented by their Agent, Mr P. White, of the Department of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. 2. The applicant joined the Army in 1985 at the age of 18 and served until the expiry of his contract in November 1997. He had competed internationally as a boxer. He served in the Artillery Corps and held the rank of gunner. He married in 1989 and had three children with his wife. 3. The applicant claims that he was the victim of a series of sexual assaults (groping and inappropriate touching) by his superior officer, PD, who held the rank of Sergeant Major. This began in 1989 at a time of alleged personal difficulty for the applicant. At this time, he had been involved in a hit-and-run accident for which he was prosecuted as well as for driving under the influence of alcohol. The abuse typically involved PD touching the applicant intimately, rubbing his own private parts against the applicant’s body and physically forcing the applicant’s hand to touch PD’s private parts, all of this through clothing. The abuse occurred in PD’s office and it continued until about 1995. 4. The applicant claims that the Defence Forces could not have been unaware of PD’s proclivity to interfere with his subordinates. He alleges that he and at least one other gunner were subjected to protracted ridicule in the mess (canteen) as the officer’s “bum boy”. He did not at any time during his military career make a complaint about PD’s conduct. This, he claims, was partly out of shame and partly because PD had, allegedly, threatened that he would be locked up if he reported the abuse and that the word of a gunner would not be taken over that of a Sergeant Major. In the applicant’s view, the culture in the Defence Forces at that time was against making complaints. In the applicant’s subsequent proceedings against the army, his wife gave evidence to the High Court that his behaviour at that time began to deteriorate and that he had changed from being a model father and husband to being unrecognisable. In or about 1992 the applicant and his wife separated. 5. After the applicant had left the army, two other complaints were made against PD by two soldiers, CP and RM. 6. In October 1998 CP filed a complaint of sexual assault by PD which had allegedly occurred some days earlier during a room inspection and he sought to be discharged from the army because of it. The complaint was investigated by the military police who interviewed CP, PD and another officer involved in the room inspection. 7. In their investigation report, dated 9 October 1998, the military police noted that while CP claimed that the incident with PD was the reason for his seeking discharge he had, in fact, already been seeking civilian employment for some months before that time. It also noted CP’s disciplinary record. It noted Captain S’s testimony that when he left the room the door was ajar and that PD had followed him out of the room approximately 30 seconds later. It had regard to the fact that PD had a service record of 40 years and had never before been the subject of any allegations. The report concluded that it had not been possible to prove CP’s allegation. PD went on leave after this investigation and then decided to retire, leaving the army in April 1999. 8. In December 1998 RM confided in two colleagues that he had had similar experiences to CP, but he declined to identify the person responsible. The colleagues – both of whom later gave statements to the police – raised their concerns with Captain S. He undertook to deal with the complaint and arranged for RM to meet with the army psychiatrist. He also asked if PD was involved but RM was unwilling to discuss this and did not make any complaint against PD at this time. 9. At the end of 1998, the applicant happened to meet a former colleague of his, JW, who told him about the allegations that had been made concerning PD. The applicant then told him of his experience with PD but swore him to secrecy. JW, nevertheless, raised the matter immediately with his superior officer, Lieutenant Colonel C. 10. In December 1999 RM made a statement to the police about sexual assaults committed against him by PD the previous year. 11. The police commenced an investigation during which they became aware of the allegations made by CP and the applicant. They took statements from all three men between March and August 2000. The police also interviewed several military officers and took statements from the two soldiers who had brought RM’s situation to the attention of the military authorities, as well as from Captain S. 12. The police interviewed PD on 19 September 2000. He denied the allegations. Two days later, however, during a second interview, he confessed to having sexually assaulted RM. He was then arrested. He continued to deny the allegations made by the applicant and by CP. 13. In February 2001 the investigation file was submitted to the Director of Public Prosecutions (“DPP”) in respect of the three complainants. In August 2001 the DPP directed PD’s prosecution in respect of RM’s complaints and sought further information from the police concerning the applicant and CP. The information was furnished in January 2002. The initial decision of the DPP was not to prosecute PD in respect of complaints made by the applicant and CP. However, upon a request by the police the file was reviewed by the DPP who then issued a new direction in October 2002 to prosecute PD in respect of the applicant’s complaints. 14. In December 2002 PD pleaded guilty to six charges of sexual assault upon RM. On 9 April 2003 he was formally convicted and sentenced to 2 years’ imprisonment, suspended on condition that he enter a bond and agree to be of good behaviour and keep the peace for 5 years. He was also fined EUR 15,000, which was to be paid to RM, and was placed on the register of sexual offenders. 15. Following a criminal trial in July 2003, the jury acquitted PD in respect of certain charges and it failed to reach a verdict on other counts. A nolle prosequi (withdrawal of charges) was then entered in January 2004 in respect of the charges on which the jury had failed to reach a verdict. 16. In June 2001 the applicant issued civil proceedings for damages against PD, the Minister for Defence, Ireland and the Attorney General. He was legally represented and his claim against PD was settled in April 2006 in the sum of €5,000 without admission of liability. 17. The applicant’s claim against the remaining defendants (the “State defendants”) was heard by the High Court and was based on two alternative grounds. Firstly, he alleged that the State was vicariously liable for the actions of PD. Secondly, he alleged that the State was directly negligent in that he claimed it had knowledge of PD’s behaviour such as would have alerted a reasonable person to take steps to inquire into or prevent the activities of PD and that it had failed so to do. The trial commenced in the High Court in October 2006 and heard numerous witnesses over the course of nine days. 18. The High Court (Johnson P.) gave judgment on 30 July 2007, dismissing the applicant’s claims. 19. The court accepted that, on the civil standard of proof, that is, on the balance of probabilities, PD had assaulted the applicant causing posttraumatic stress disorder. It then considered whether the State should be held vicariously liable for this. The High Court reviewed all the relevant legal authorities that were opened to it on the question of vicarious liability, including Irish, Canadian and British jurisprudence and it found: “All of the above cases were cases which related to young and vulnerable children, which is not the situation in this case. The plaintiff was a married soldier at the time of the first incident and I do not think that the same principles that were applied in the cases of wardens of boarding schools and/or orphanages can be applied to the Army. I have come to this conclusion after a good deal of consideration and some doubt. The doubt was created particularly by the fact of the control which the first named defendant had over the plaintiff, but overall I feel that the balance in this particular case lies against vicarious liability.” 20. The High Court then considered the separate question as to whether the State had been directly negligent and addressed this issue in terms of whether the authorities had been or should have been aware of PD’s behaviour at the relevant time. It stated: “...[T]he evidence of the [applicant] and many of his witnesses is that there was general chat on a continual basis about [PD’s] activities, that it was well known and that it was the chat of the barrack room and the camp. This has been completely denied by all of the defendant’s witnesses. Whereas I grant there is a distinction in rank between the [applicant’s] witnesses and the defendant’s witnesses, I came to the conclusion that all of them appear to be attempting to tell the truth. Therefore, I am satisfied that there was banter, possibly name calling and certainly general slagging, I think would be the correct way of putting it, and, though that may have been prevalent in the mess room at times, none of it was taken sufficiently seriously by any of the men, the NCO’s and any other officers who may have heard it to be considered anything other than of a humorous nature. It is necessary to look at the incidents and at the evidence in light of the times as they then were. These events took place in the 1980’s and early 1990’s, at a time when the antenna of the ordinary reasonable person was far less acute to the potentials for sexual abuse or sexual assault than they are today. We must remember that, for the last ten years, the country has been subject to continual reports of sexual exploitation, sexual abuse and sexual assaults, all of which have tended to make the population a great deal more sensitive to matters which twenty years ago would not have drawn any attention whatsoever. I am quite satisfied that had any of the NCO’s or others, any real apprehension regarding the behaviour of [PD], they would have given notice of such apprehension one way or another through the preferred route as laid down in the Army code or otherwise. I am reinforced in this view by the speedy action of [JW], when informed by the [applicant] of the events which occurred, he immediately repeated to the Superior Officers and laid the [applicant’s] claim before them, despite the fact that he had been bound by the [applicant] to secrecy. It is for this reason, I have come to the conclusion that, on the balance of probabilities, the [applicant] failed to discharge the onus of proof on him that, at the time of the incidents when the subject matter of these proceedings occurred, the level or content of the activities which were described in the mess room, in the bar and in the canteen were such as would have alerted a reasonable person and cause them to take steps to either enquire into or prevent the activities of [PD].” 21. The applicant appealed to the Supreme Court, which dismissed the case in a judgment of 24 March 2009. 22. On the negligence claim, the Supreme Court (Kearns J) reviewed the evidence and did not interfere with the findings of fact made by the High Court. The court acknowledged the evidence in support of the applicant’s claims that the proclivities of PD were known in army circles and that there was no satisfactory method of bringing a complaint. It also acknowledged the large number of witnesses for the defendants who had contested these claims, meaning there was also ample evidence against the applicant’s case. The court referred to the various avenues of complaint that had been available to the applicant and the persons to whom he could have turned, in confidence, for help, such as the army chaplain or the social worker. The court recalled that its appellate role meant that it should only ensure that the primary findings of fact at trial and the inferences drawn from them were supported by the evidence. The trial judge had heard the witnesses directly and could assess their demeanour. He had been entitled to have regard to the fact that the applicant had never made a complaint about PD, even though he had used the complaints procedure regarding another unrelated matter, thus demonstrating that he was aware of the existence of a complaints procedure and had been ready to use it. The evidence did not support the claim that soldiers were reluctant to make complaints or that the army was unreceptive to them. An expert witness had confirmed that the complaints procedures in place at that time in the army were good and sufficient by the standards then prevailing. The court also agreed with the trial judge’s remarks about the importance of considering the issues in the light of the times as they then were and observed that it was “a dangerous exercise in hindsight to apply knowledge and standards of today to events which occurred twenty-five years ago”. 23. On the question of vicarious liability, the Supreme Court noted that the applicant did not challenge the correctness of the legal principles as emerged from the case law and as outlined by the High Court. He had only challenged that court’s application of those legal principles. The applicant had argued that, while his case did not concern a child, the environment of the armed forces was such that the normal rules of adult interaction did not apply given, inter alia, disparities in rank. The Supreme Court, however, concluded that the employment relationship between the applicant and the Defence Forces did not support finding of vicarious liability. It stated: “While undoubtedly [PD] exercised a supervisory and disciplinary role where the [applicant] was concerned, he was not in the same position as a school teacher or boarding house warden in relation to a child. Nor was the nature of the employment one which would have encouraged close personal contact where some inherent risks might be said to exist as, for example, might arise if [PD] had been a swimming instructor in close physical contact with young recruits. There was no intimacy implicit in the relationship between the [applicant] and [PD] nor was there any quasiparental role or responsibility for personal nurturing which was found to exist in the cases where vicarious liability was established. To hold otherwise would be to extend to the Defence Forces a virtual new species of liability where the defendants would be liable for virtually every act or omission of an employee.” 24. The Supreme Court went on to distinguish the relationship in issue in the applicant’s case from that of a teacher and a child referring back to the case of O’Keeffe v. Hickey [2008] I.E.S.C. 72. It held that while the O’Keeffe case had involved a vulnerable child who was sexually abused by a teacher at school, the facts of the relationship between the parties in the instant case could hardly be more different. The applicant in this case was at all material times an adult. He had elected to accept the rigours, the discipline and the camaraderie associated with the life of a professional soldier. It must be accepted that the Defence Forces require an atmosphere of discipline in order to function. A wide extension of liability would undermine the whole operational basis of any army. 25. The Supreme Court concluded that the applicant’s case fell short by a considerable margin of establishing the prerequisites for a finding that the State defendants should be held vicariously responsible for the criminal activities of PD. 26. According to the Government, the applicant took legal proceedings against the army on two previous occasions while he was serving member of the Defence Forces. The first was a claim to the High Court for damages for personal injuries (deafness) for which he was awarded compensation. Some 17,000 military personnel had sued for damage to hearing caused by inadequate protective material. He also brought a personal injuries action against the Defence Forces arising from a road traffic accident and the case was settled. 27. The applicant submitted a claim for compensation to the Criminal Injuries Compensation Tribunal (“CICT”) in respect of the injury caused by the sexual assaults of PD. His claim was rejected in April 2010 on the grounds of delay in reporting the crime. The applicant appealed. A hearing took place on 16 April 2012, leading to a decision of 24 May 2012 in which he was awarded €37,870 compensation. 28. A general formal complaint system was established by section 114 of the 1954 Act: “(1) If an officer thinks himself wronged in any matter by any superior or other officer, including his commanding officer, he may complain thereof to his commanding officer and if, but only if, his commanding officer does not deal with the complaint to such officer’s satisfaction, he may complain in the prescribed manner to the Minister who shall inquire into the complaint and give his directions thereon. (2) If any man thinks himself wronged in any matter by any officer, other than his company commander, or by any man he may complain thereof to his company commander, and if he thinks himself wronged by his company commander either in respect of his complaint not being redressed or in respect of any other matter, he may complain thereof to his commanding officer, and if he thinks himself wronged by his commanding officer, either in respect of his complaint not being redressed or in respect of any other matter, he may complain thereof in the prescribed manner to the Adjutant-General, who, if so required by the man, shall report on the matter of the complaint to the Minister who shall inquire into the complaint and give his directions thereon. (3) Every officer to whom a complaint is made in pursuance of this section shall cause such complaint to be inquired into, and shall, if on inquiry he is satisfied of the justice of the complaint so made, take such steps as may be necessary for giving full redress to the complainant in respect of the matter complained of, and shall in every case inform the complainant in the prescribed manner as to what action has been taken in respect of the matter complained of.” 29. The 1954 Act also provided for the trial of military and criminal charges by court-martial including within 3 months of the retirement from the Defence Forces of the accused (section 120 of the 1954 Act). Section 140 of the 1954 Act provided that anyone subject to military law who illtreated any subordinate was guilty of an offence against military law and would, on conviction by court-martial, be liable to imprisonment for a term not exceeding 2 years or to any less punishment awardable by a courtmartial. 30. The Defence Forces Regulations A7, adopted by the Minister under the 1954 Act, provided general guidance to commanding and other officers as to their responsibilities regarding discipline and misconduct. It also set out (section 11C) a procedure for the submission of grievances during the general annual inspection of the military unit by a General Officer Commanding. Notice of such inspections was given in advance with a reminder of the opportunity to bring forward any complaints. 31. In early 1996 the “Administrative Instruction A7” was adopted pursuant to Regulations A7. It was headed “Interpersonal Relationships in the Defence Forces” and it codified detailed procedures for making complaints in relation to unacceptable interpersonal behaviour to a company commander. Paragraph 102 of that Instruction accepted that the requirement to obey all lawful orders had to be counterbalanced by ensuring respectful and professional treatment and relationships between superiors of subordinates. Paragraph 114 defined what was unacceptable sexual behaviour and gave specific examples including sexual assault and attempting to engage in or engaging in sexual activity by force, coercion or intimidation. Separate provisions governed “sexual harassment” including defining the notion, giving concrete examples and providing particular provisions for complaints having regard to the specific difficulties attached thereto. 32. The Supreme Court in the present case summarised the relevant principles applicable to the issue of vicarious liability by listing the factors for establishing whether or not impugned acts were carried out within the course and scope of employment. These principles are set out in the Canadian cases of Bazley v. Curry (1999) 174 D.L.R. (4th) 45; and Jacobi v. Griffiths (1999) 174 D.L.R. (4th) 71), both of which concerned the sexual abuse of infant children. 33. In Bazley case, the Supreme Court of Canada noted that the established common-law test was that employers were vicariously liable for employee acts authorised by the employer or unauthorised acts “so connected with authorised acts that they may be regarded as modes (albeit unauthorised modes) of doing an authorised act”. In noting that vicarious liability was generally appropriate where there was a significant connection between the creation or enhancement of a risk and the wrong that accrued therefrom, the Supreme Court of Canada set out the principles by which the sufficiency of the connection between the employer’s creation and enhancement of the risk and the wrong complained of was to be determined. These included: “(a) The opportunity the enterprise afforded the employee to abuse his or her power; (b) The extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee); (c) The extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employers’ enterprise; (d) The extent of power conferred on the employee in relation to the victims; and (e) The vulnerability of potential victims to wrongful exercise of the employee’s power.” 34. The Jacobi case provided two further principles: “(a) A court should determine whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case falls. (b) If prior cases do not clearly suggest a solution, the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability.” 35. Both of these cases were analysed by the House of Lords in Lister v. Hesley Hall Limited ([2001] UKHL 22 [2002] 1 A.C. 215) and cited by the High Court in the present case as the leading United Kingdom authority on the issue. The plaintiffs in that case were residents in a school owned and managed by the defendants and they had been sexually abused by the warden. 36. Lord Steyn stated (§ 28 of the judgment): “Employing the traditional methodology of English law, I am satisfied that in the case of the appeals under consideration the evidence showed that the employers entrusted the care of the children in Axeholme House to the warden. The question is whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. On the facts of the case the answer is yes. After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in Axeholme House. Matters of degree arise. But the present case clearly falls on the side of vicarious liability.” 37. A victim can apply for compensation for injury suffered as a result of violent crime under the statutory Scheme of Compensation for Personal Injuries Criminally Inflicted. The Scheme is administered by the CICT. The prescription period is three months but it can be extended, exceptionally. Compensation is paid without any inquiry into liability and on an ex gratia basis. It covers expenses and losses and, since 1 April 1986, it does not include compensation for non-pecuniary loss. The Tribunal will deduct sums received by a victim in compensation from another source including from a civil action against the offender.