Sunday 28 May 2017

Mother and son who claim gardai assaulted them in their home granted appeal

Owen Gaffney leaving Dublin Circuit Court yesterday with his mother Fidelma
Owen Gaffney leaving Dublin Circuit Court yesterday with his mother Fidelma

Tim Healy

A civil action arising out of an incident in which a mother and her son say they were assaulted by gardai in their home can go ahead, the Court of Appeal ruled.

Fidelma and Owen Gaffney sued the gardai and the State over the February 2008 incident when they say a number of gardai forcibly entered their flat in Basin Street, Dublin, and assaulted them both.

Four gardai later went on trial, arising out of a Garda Siochana Ombudsman Commission investigation, in relation to the incident. 

The first trial of the gardai collapsed but in a second trial, which lasted 25 days, they were acquitted by a jury of charges of trespass and assaulting the son. Three were also acquitted of false imprisonment of the mother.

It had been alleged Mr Gaffney, who was 18 at the time, was struck several times with batons and his mother was restrained and locked in a bathroom while this was happening. The gardai denied the charges.

The Gaffneys sued in the High Court alleging, among other things, assault, trespass and breach of various constitutional rights.

In April last year, the High Court struck out their actions after the State applied for the order due to the delay by the Gaffneys in pursuing their case.

They appealed and Mr Justice Gerard Hogan ruled, on behalf of a three-judge appeal court, overturned that decision.

He said the balance of justice favoured permitting the action to proceed.

There was no doubt, he said, a delay of some three years and five months on the part of the Gaffneys in pursuing their case was inordinate and inexcusable.

He had come to the view that the test for dismissing due delay had not been satisfied because of the absence of any specific prejudice to the State defendants. There was also the fact there had been two criminal trials arising from the incident and the fact that the overall delay had not been as long as in other cases, he said.

However, he said, there could be "absolutely no room at all for any further delay".

He ordered the Gaffneys to serve notice of their intention to proceed with their case within two weeks and that within two further months seek directions for an early trial and case management of the proceedings.

If they fail to do so and the State makes a second application to dismiss their case for want of prosecution "it is hard to see they (Gaffneys) would have any effective response", he said.

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