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FIFTH SECTION

Application no. 51083/09
by Raymond REILLY
against Ireland
lodged on 15 September 2009

STATEMENT OF FACTS

THE FACTS

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.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  Background

The applicant joined the Defence Forces in November 1985 when he was 19 years of age. He served as a “Gunner” in the Artillery Corps and therefore held the rank of “private”, the lowest rank in the forces.

Between February 1989 and 1995 the applicant was sexually abused by his superior officer, PD. PD was a Sergeant Major, the highest rank of non-commissioned officer (“NCO”) in the Irish Defence Forces. The abuse usually involved the handling of the applicant’s genitals by PD and the rubbing by PD of his private parts against the applicant’s body. On other occasions, PD grabbed the applicant’s hands and forced them down into PD’s private parts. When the applicant objected he would be ordered to stand to attention and was warned to remain silent or face being locked up. The abuse took place in PD’s office, to which the applicant was summoned by PD in his capacity as Sergeant Major and in the course of PD’s working day. A Sergeant Major had the function of securing discipline and obedience amongst the lower ranks.

The applicant maintained that the army was aware of PD’s proclivity to interfere with junior soldiers and that he (and at least one other Gunner) was subjected to protracted ridicule as PD’s “bum boy”. He did not complain as PD repeatedly threatened him that he would be locked up if he attempted to report the abuse, because the word of a mere Gunner would not be taken over that of a Sergeant Major and because, at the time, the culture in the army was against making complaints (particularly against a senior officer) so that complaints typically led nowhere. The applicant submitted that he felt weak and intimidated during the abuse as well as dirty and deeply ashamed as a result of it. His wife later gave evidence to the High Court that the applicant’s behaviour began to deteriorate: from a model father and husband he became unrecognisable. In January 1992 the applicant deserted the army and went to England but his family convinced him to return.

In November 1997 the applicant’s contract expired and he left the army. He developed post-traumatic stress disorder and started drinking heavily. His marriage broke down.

2.  The allegations

On 5 October 1998 CP, also a Gunner, complained to the military that PD had sexually assaulted him some days previously: PD had entered his room with a Captain and 2 Corporals for a pre-arranged room inspection and, once the inspection was over, the Captain and 2 Corporals left leaving CP and PD alone, when PD allegedly sexually assaulted CP.

In December 1998 RM admitted to Gunners ED and OC that he had had similar problems as CP with an unnamed NCO. Gunners ED and OC reported the matter to Captain S who said he would deal with it.

In late 1998 the applicant happened to meet Battery Sergeant W. The latter told him that another soldier (the High Court referred to two other soldiers, the Supreme Court referred to one other soldier) had made a complaint about PD but that the complainant had not been believed. The applicant then admitted to Battery Sergeant W that he had had similar experience with PD but swore the latter to secrecy. The latter, nevertheless, reported the matter to his superior officer (Lieutenant Colonel C).

In April 1999 PD retired from the army with an exemplary discharge.

By December 1999 RM had complained to the police about sexual assaults by PD (April to October 1998). In August 2000 the applicant felt he could also complain to the police about sexual assaults by PD.

3.  Police investigation

The police took statements from the applicant, RM and CP.

On 27 March and 2 August 2000 the police took statements from Gunner ED who reported as follows. At end of 1998, on a night out in Dublin, RM had confided in this witness about his having had problems of the same nature as CP with an unnamed NCO. Gunner ED (along with Gunner OC, see below) reported RM’s claims to Captain S because they were concerned about RM’s change in behaviour and, notably, a recent reported suicide attempt by RM. He had heard rumours that PD was gay and understood that PD had been close to a Lebanese boy on mission overseas.

On 29 August 2000 the police took a statement from Gunner OC who gave the same evidence as Gunner ED about RM’s confession to having been abused by an NCO and reporting the matter to Captain S. This witness also indicated that he had once been called to PD’s office: PD had acted strangely but not inappropriately but thereafter colleagues warned him to be careful of PD or he would be PD’s new boy in the office.

On 29 March 2000 the police took a statement from Captain S. When the Gunners had reported the allegation concerning RM to him (he indicates at end of March 1999 whereas the Gunners appear to indicate that it was in December 1998), he made certain arrangements for RM (appointment with the army psychiatrist) and reported the matter onward to his superior. Captain S also asked RM if he had been interfered with by PD and RM did not want to respond. At the time Captain S knew that a Gunner had already made a complaint about a sexual assault by PD, that it had been investigated by the military authorities and that no action had been taken due to lack of evidence.

In September 2000 the police interviewed PD who denied abusing anyone. Two days later he was interviewed at a police station: he admitted to sexually assaulting RM but denied assaulting the applicant or CP.

The extract of the Police Report submitted, which is undated, concludes that there was no doubt that RM was telling the truth, that PD had abused on several occasions RM and that RM’s life had been significantly negatively affected. As for CP, his allegation concerned one incident and there was no evidence. However, the police noted that Gunners would be afraid to speak out (the applicant and RM) and that the military police had failed to take evidence from the two Corporals who attended at CP’s room inspection on the date of the alleged incident. The police also considered it a coincidence that PD had applied for discharge shortly after being asked to make a statement to the military police on CP’s allegations.

In their view CP and the applicant were also telling the truth. There was an “uncanny resemblance” between the allegations of RM and the applicant (both had personal problems, both were called by PD to his office to discuss those problems and both had been abused in the same fashion by him) but RM and the applicant had never known each other. The police report refers to an interview with a Sergeant who remembered PD asking him to leave PD’s office when the applicant was there (statement not submitted). The police report ends by indicating that Battery Sergeant W’s statement (not submitted to the Court) confirmed that he had reported the applicant’s allegations to Lieutenant Colonel C but that the latter had said in his statement to the police (also not submitted to the Court) “that there was no mention of any impropriety on [PD’s] behalf, other than [CP’s] allegation”. The police report indicated that it was quite clear from talking to army personnel “that PD had a bit of a reputation for having favourites”. Although few soldiers were willing to say it, it was “quite obvious” that there was something amiss about PD. The police report concluded by indicating that they tended to believe the applicant and CP and that there was no doubt about RM’s allegations. It was recommended that PD be prosecuted for sexual assault on the applicant, RM and CP.

4.  The military investigations as regards CP

Once CP’s complaint was lodged on 5 October 1998, it was referred to the military police for investigation who took a statement from CP, PD and Captain S (but not the 2 Corporals involved in the room inspection). The Military Police Final Investigation Report dated 9 October 1998 was forwarded to the Investigation section: it concluded that CP had been seeking employment outside of the army for months prior to the alleged incident and his record was not desirable. PD had served for 40 years (including overseas tours) and had never been the subject of such allegations. There was insufficient evidence to prove the assault.

No documents concerning an investigation by the military authorities into RM’s or the applicant’s allegations were submitted.

5.  Criminal proceedings as regards RM

In December 2002 PD pleaded guilty before the Circuit (Criminal) Court to charges of sexual assault of RM and in April 2003 he was sentenced to 2 years’ imprisonment, suspended on condition that he enter a bond of EUR 150 and agree to be of good behaviour and keep the peace for 5 years. PD was also fined EUR 15,000 which was offered to RM. PD was placed on the register of sexual offenders.

6.  Criminal proceedings as regards the applicant

In 2003 the Director of Public Prosecutions (DPP) charged PD on several counts of indecent and sexual assault on the applicant contrary to the Offences Against the Person Act 1861 and the Criminal Law (Rape) (Amendment) Act 1990. On 24 July 2003 PD pleaded “not guilty”. The jury failed to reach a verdict after a trial. On 15 January 2004 the Circuit (Criminal) Court ordered that a Nolle Prosequi be entered in accordance with Section 12 of the Criminal Justice (Administration) Act 1924.

7.  Civil proceedings by applicant

By summons of 15 June 2001, the applicant began a civil action for damages against PD and the Minister for Defence, Ireland and the Attorney General. The case was listed for hearing in the High Court in February 2006. On the day of the trial, the applicant sought an adjournment to obtain expert evidence on bullying.

The applicant became concerned about the accumulated and potential costs (including the transport to Ireland of overseas witnesses). He had no funds, a modest income and a family to support and he was, in particular, concerned that PD had no assets upon which any future judgment (costs and damages) could be levied. He therefore settled his civil claim against PD and received a sum of EUR 5,000 in settlement in or around April 2006.

His action against the State defendants continued. He claimed that the State was vicariously liable for the actions of PD since PD used the authority of his rank to carry out the abuse in the scope and context of his employment and/or that the Minister had sufficient notice of the proclivities of PD to have taken steps to ensure that the applicant was not abused by PD. The High Court heard numerous witnesses and the hearing lasted 9 days.

(a)  High Court judgment: [2007] IEHC 252

On 30 July 2007 the High Court found against the applicant.

In the first place, the High Court rejected the Minister’s plea that the claim was statute barred. In that context, the court made certain findings of fact: it found that the assaults alleged by the applicant had taken place and that the applicant had suffered post traumatic stress disorder as a result.

Secondly, the Minister was not vicariously liable as a matter of law. Having cited with approval the principles drawn from two Canadian cases (Bazley v. Curry (1999) 174 D.L.R. (4th) 45; and Jacobi v. Griffiths (1999) 174 D.L.R. (4th) 71) as applied in L.O’K. v. Minister for Education and Science ([2006] IEHC 13), the High Court found that “if the tort and/or indecent assault was conducted in the course of and within the scope of the employment”, then the State could be vicarious liability. While the above-cited cases concerned young and vulnerable children, the present concerned a plaintiff who was an adult and married soldier at the relevant time. The High Court had hesitated and had some doubt, particularly given the control which PD had over the applicant, but considered that “the balance in this particular case lies against vicarious liability”.

Thirdly, the alleged negligent failure to protect was unsubstantiated. In this respect the High Court examined the evidence of the army authorities’ prior notice of PD’s behaviour. It found all witnesses to be truthful. While “there was banter, possibly name calling and certainly general slagging” 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 NCOs and any other officers who might have heard it “to be considered anything other than of a humorous nature”. The court underlined the differing sensitivity of the average Irish person at the relevant time (mid-1980s-early 1990s) and in 2007: since the relevant time Ireland had been subjected to continual reports of sexual exploitation and abuse all of which tended to make the current population a great deal more sensitive to such matters. The High Court was also satisfied that, had any of the NCOs or others had any real apprehension about PD’s behaviour, they would have pursued the matter as required. Indeed, Battery Sergeant W had raised the applicant’s claim with his superior officers despite the applicant’s instructions to the contrary. The applicant had failed to discharge the onus of proof on him that, at the relevant time, the level or content of the rumours/activities of PD 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.

(b)  Supreme Court judgment: [2009] IESC 22

The applicant’s appeal was rejected by judgment of 24 March 2009.

As to the negligence claim, the Supreme Court recognised that there was substantial evidence on both sides as to the level of knowledge about PD’s activities and as to the effectiveness of the complaints procedures and considered that the High Court was entitled to conclude as it did. In so doing it noted the various military complaints procedures as including: the procedure under the A7 Regulations which regulations were communicated to members of the regiment generally and which formed part of the compulsory training syllabus; a soldier could raise a problem with a section boss or NCO; a complaint could be made to the Army Chaplain/Army social worker; and a complaint could be brought to the General Officer Commanding who visited once a year.

As to vicarious liability, the applicant had argued that, although the case did not concern a young child, the environment of the armed forces was such that the normal rules of adult interaction did not apply given, inter alia, the control exercised by PD over the applicant given the disparity in rank. However, the Supreme Court considered this case fell considerably short of establishing the prerequisites for a finding that the State defendants should be held vicariously responsible for the criminal activities of PD. Even if special rules of liability could be afforded to vulnerable children (the principles drawn from the above cited cases of Bazley and Jacobi), the Supreme Court had already ruled out vicarious liability as regards children in national schools in (O’Keeffe v. Hickey [2008] IESC 72). Contrary to children, professional soldiers were adults who elected to accept the rigours, discipline and camaraderie associated with the life of a professional soldier: the applicant’s and PDs relationship “could hardly be more different” from that of a vulnerable child and teacher. An extension of liability would make the taxpayer liable “for the criminal acts of employees of State bodies”, would affect the actions of “the Defence Forces in ways which would require to be considered as a matter of policy before such an extension of the law would be allowed”, would undermine the whole operational basis of any army and would be counter to the atmosphere of discipline required to enable the Defence Forces to function.

B.  Relevant domestic law and practice

1.  The Defence Act 1954 (as amended), “the 1954 Act”

Section 17(1) of the 1954 Act provides as follows:

“Under the direction of the President, and subject to the provisions of this Act, the military command of, and all executive and administrative powers in relation to, the Defence Forces, including the power to delegate command and authority, shall be exercisable by the Government and, subject to such exceptions and limitations as the Government may from time to time determine, through and by the Minister.”

The ranks set out in column (2) of the Third Schedule to the 1954 Act are the non-commissioned army ranks in the Defence Forces (section 25(1)(a) of the 1954 Act). Column 2 sets out seven ranks of Non-Commissioned Officer (“NCO”) and Private is the lowest with Sergeant Major being the highest. The Minister for Defence (or any officer authorised by him) has the power to promote and demote NCOs (section 84).

2.  Vicarious liability

The Supreme Court in the present case summarised the relevant principles applicable to the vicarious liability of the State by listing the principles for establishing whether or not the impugned acts were within the course and scope of the employment of the applicant set out in the above-cited Canadian cases of Bazley v. Curry and Jacobi v. Griffiths. Both cases concerned the sexual abuse of infant children of a vulnerable age.

In Bazley case, the Supreme Court of Canada noted that the established common-law test considered 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, even if unrelated to the employer’s desires, the Supreme Court of Canada proceeded to set out principles to determine the sufficiency of the connection between the employers creation and enhancement of the risk and the wrong complained of which 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.

(e)  The vulnerability of potential victims to wrongful exercise of the employee’s power.”

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.”

Both of these cases were analysed by the House of Lords in Lister v. Hesley Hall Limited ([2001] UKHL 22 [2002] 1 AC 215, 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 were sexually abused by the warden.

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.”

In the same case Lord Clyde stated that (§ 50 of the judgment):

“In addition to the opportunity which access gave him, his position as warden and the close contact with the boys which that work involved created a sufficient connection between the acts of abuse which he committed and the work which he had been employed to do. It appears that the respondents gave the warden a quite general authority in the supervision and running of the house as well as some particular responsibilities.”

COMPLAINTS

The applicant complains under Article 3 that he was subjected to inhuman and degrading treatment by a Sergeant Major of the armed forces and, further, that the State should have (given its level of knowledge as recognised by the High Court) taken steps to protected him from such treatment.

He also complains under Article 6 that the lack of the State’s vicarious liability was a disproportionate limitation on his access to Court and under Article 8 (private life aspect) about the abuse and about the alleged failure by the State failed to fulfil its positive obligation to protect him.

Finally, he complains under Article 13 that he had no effective remedy for the breaches of Articles 3 and 8 since the State is not vicariously liable for the acts of its senior officers.

QUESTIONS TO THE PARTIES

1.(a)  Can the applicant continue to claim to be a victim of a violation of the substantive aspect of Article 3 of the Convention as regards the sexual assaults on him by PD?

1.(b)  Has the applicant exhausted all effective domestic remedies within the meaning of Article 35(1) of the Convention (which has a close affinity with Article 13, see question no. 4) as regards his substantive complaint under, inter alia, Article 3 about having been abused by PD?

2.(a)  The High Court accepted in civil proceedings that PD sexually abused the applicant. Did PD’s conduct engage the responsibility of the State under Article 3 of the Convention? Did that treatment of the applicant by PD amount to inhuman and/or degrading treatment within the meaning of Article 3 of the Convention?

2.(b)  Did the State fulfil its procedural obligation to investigate the ill-treatment of the applicant by PD (Labita v. Italy [GC], no. 26772/95, §§ 131 and 135, ECHR 2000-IV)? In this respect, the Government are requested to set out in detail, including relevant documentation, the steps taken by the military and the police to investigate reported allegations of sexual abuse of the applicant by PD?

3.  Has there also been a violation of Article 8 of the Convention?

4.  Did the applicant have at his disposal an effective domestic remedy within the meaning of Article 13 of the Convention as regards his substantive complaints under Article 3 having regard to, inter alia, the settlement of the action for damages against PD, the absence of vicarious liability of the State for the actions of PD and the availability of a remedy in damages for any breach of the constitutional rights of the applicant? The parties are requested to clarify any entitlement of the applicant under criminal injury compensation legislation.