The Supreme Court has strongly urged the State to make a "significant" ex gratia payment to a man after finding he should never have been prosecuted for two public order offences arising from a dispute between neighbours in west Cork over cattle.
The circumstances that led to Stephen Murphy jnr's prosecution for two alleged offences outside his home on June 27th, 1996, represented a "significant internal failure" on the part of gardaí, Mr Justice Frank Clarke said.
While dismissing claims of malicious prosecution, all three judges urged the State to “seriously consider” making a “significant ex gratia payment” to Mr Murphy due to the way he was treated.
After saying any application by the State for legal costs would be treated "with severe disdain", Mr Justice Clarke, with Mr Justice Elizabeth Dunne and Mr Justice Peter Charleton, made no orders for costs for or against any party and directed the State pay Mr Murphy's reasonable expenses of having had to come to court to get "clarity" of this matter dating back 20 years.
The court issued its judgment on Thursday finding that while Mr Murphy should not have been prosecuted for two offences outside his family home at Baurnahulla, Drimoleague, on June 27th, 1996, there was no malicious prosecution involved. It also rejected an appeal by his sister Ann against dismissal of her claims that she had been maliciously prosecuted on public order charges over events on June 27th, 1996.
The court said that the prosecutions could not have been activated by malice for reasons including that one conviction justifiably remained against Ms Murphy concerning June 27th, 1996, and one conviction remained against her brother over events on June 29th, 1996.
Both appellants voiced unhappiness with the court’s decision, with Ms Murphy claiming there was “cowboy rule in west Cork”.
Giving the judgment, Mr Justice Charleton noted the dispute between the Murphys and their neighbours John and Dermot McCarthy, whose lands surround the Murphy home, dated to 1994 when reclamation of some land by the McCarthys affected a water source to the home occupied by Stephen Murphy s
nr (since deceased), his son Stephen and daughter Ann.
A “feeling of injustice” was ever after part of the Murphys’ attitude and it translated into “disquiet and anger” whenever the McCarthys drove their cattle on the public road past the Murphy home.
On June 27th, 1996, Dermot McCarthy called gardaí on at least two occasions arising from incidents when cattle were going past the property. It was alleged Stephen Murphy snr, Ann Murphy and Stephen Murphy jnr were involved in some of four incidents that day.
Mr Murphy jnr was later convicted on a charge of unreasonable behaviour after being asked to “desist” by a garda despite never having been asked by any garda that day to do, or not do, anything, Mr Justice Charleton said. While that conviction was overturned on appeal, prosecution on that charge should never have been recommended.
A second prosecution on a charge including a claim of failing to comply with a direction of a garda to “desist and leave” should also never have been brought and was struck out in the District Court because Mr Murphy was never in the presence of a garda on June 27th.
Those prosecutions arose due to human error largely because of a typist's error where Mr Murphy jnr's name was confused with his father's and the High Court accepted gardaí only learned of that error before that court, he said.
There was “inevitable confusion” when neighbours were at loggerheads, gardaí were present for some events only and family names were shared.
A report by Garda Michael McCarthy (not related to the McCarthys but sharing an interest with them in horse breeding) "unthinkingly recommended prosecutions against Mr Murphy jnr for exactly the same offences as alleged against his father". That should not have happened and was "just slipshod" but the court rejected as "unfounded" allegations of bias against Garda McCarthy. There was also "unthinking" acceptance of the prosecution recommendation by Supt JP Twomey, then attached to Bandon Garda station, the judge added.
