News 3rd Feb 2020

Brendan Kelly QC enjoys success following High Court trial in Northern Ireland


Brendan Kelly QC led the team at trial of Peter Girvan BL and Michelle Madden of Dermot Walker, Madden & Co Solicitors in NI. This was the first action of its kind in Northern Ireland and after 9 years of litigation and a contested trial over a two week period, Justice Gerry McAlinden ruled in favour of the plaintiff. The plaintiff was the victim of rape. She has a diagnosis of Asperger’s Syndrome which was made when she was 12 years old and, more recently, she has required a number of inpatient admissions for psychotic illness. The Defendant, The Chief Constable of the PSNI, against whose Service, it was claimed, there had been a complete failure to investigate the allegation of rape when first made in 2009.

The plaintiff sought damages on account of the defendant’s breach of the Human Rights Act 1998 and Articles 3 and 8 of the Convention by reason of the failure to properly investigate the rape of the plaintiff. It was alleged that she has suffered extreme upset, distress and psychiatric injury including self-harming, acute depression, psychotic symptoms and an eating disorder.

Article 3 of the Convention provides that no-one shall be subjected to inhuman or degrading treatment or punishment. Article 8 of the Convention provides for the right to respect for private and family life except such as is in accordance with the law and is necessary in a democratic society in the interests of…the prevention of disorder or crime or for the protection of the rights and freedoms of others.

The action, the first of its kind in Northern Ireland, was advanced upon the finding of The Supreme Court in The ‘Worboys’ case. Commissioner of Police of the Metropolis (Appellant) v DSD and another (Respondents) [2018] UKSC 18. (The plaintiffs DSD and NVB sought declarations and damages against the defendant Commissioner for the failure to conduct effective investigations into their allegations of sexual assault.  The plaintiffs were among the victims of John Worboys who, over a six-year period between 2002 and 2008, committed more than 100 drug and alcohol assisted rapes and sexual assaults on women whom he had been carrying as passengers in his black taxicab.)

  • This plaintiff relied upon the findings and recommendations of the Police Ombudsman.
  • The plaintiff relied upon the letter written by Sir Hugh Orde, the then Chief Constable, dated 25 August 2009, which when submitted constituted both a written acceptance of the Ombudsman’s findings and recommendations and an apology for the shortcomings in the PSNI investigation.
  • The plaintiff relied upon the records relating to the disciplinary actions taken in respect of two PSNI officers primarily involved in the investigation and two more senior supervising officers.

Justice Gerry McAlinden observed… ‘A review of the judgments of the ECtHR revealed the existence of certain minimum standards in respect of the duty to investigate which were endorsed by the majority. The investigation must be independent, impartial and subject to public scrutiny. The authorities must act with diligence and promptness. For an investigation to be considered effective, it should in principle be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. This is not an obligation of result, but one of means. The authorities must take whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, a detailed statement concerning the allegations from the alleged victim, eyewitness testimony, forensic evidence and, where appropriate, additional medical evidence.’

He concluded….‘The failings encompass both operational and systemic failings. The operational failings in this case cannot be described as minor or insignificant. They were such that an investigation by the Ombudsman resulted in a recommendation for the commencement of misconduct proceedings in respect of two officers. The PSNI, having considered the matter, decided to proceed by way of the administration of a Superintendent’s warning in the case of these two officers. The officers concerned accepted these disciplinary sanctions. They accepted that they had failed to conduct a thorough investigation into an allegation of stranger rape in breach of article 2 of the PSNI Code of Ethics. As a result, the failings giving rise to this disciplinary action can and should be categorised as serious failings.’

Damages coupled to a Declaratory Judgement as to Breach of the Act and High Court costs were awarded against The Chief Constable.

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