GSOC

MagicSean

If someone brought a false/vexatious complaint against a Garda via the ombudsman would the Garda have any recourse under the defamation act. I'm talking about complaints with absolutely no truth in them. Let's say the person accused a particular Garda of an assault or theft and an investigation showed that the complaint was totally made up. I would think it should be treatedin the same way as any false allegation made against someone. Or is there some protection provided to encourage people to complain.

pirelli

k_mac wrote: »

If someone brought a false/vexatious complaint against a Garda via the ombudsman would the Garda have any recourse under the defamation act. I'm talking about complaints with absolutely no truth in them. Let's say the person accused a particular Garda of an assault or theft and an investigation showed that the complaint was totally made up. I would think it should be treatedin the same way as any false allegation made against someone. Or is there some protection provided to encourage people to complain.

I would welcome laws in this area. There is tort deceit but it is more related to fraud then common values.

What do you mean treated as any false allegation made against someone?

FreudianSlippers

Qualified Privilege, according to Defamation Act 2009:

18.—
(1) Subject to section 17, it shall be a defence to a defamation
action for the defendant to prove that the statement in respect of
which the action was brought would, if it had been made immediately
before the commencement of this section, have been considered
under the law (other than the Act of 1961) in force immediately
before such commencement as having been made on an occasion of
qualified privilege.
(2) Without prejudice to the generality of subsection (1), it shall,
subject to section 19, be a defence to a defamation action for the
defendant to prove that—

(a) the statement was published to a person or persons who—

(i) had a duty to receive, or interest in receiving, the
information contained in the statement, or
(ii) the defendant believed upon reasonable grounds that
the said person or persons had such a duty or
interest, and

(b) the defendant had a corresponding duty to communicate,
or interest in communicating, the information to such
person or persons.

(3) Without prejudice to the generality of subsection (1), it shall
be a defence to a defamation action for the defendant to prove that
the statement to which the action relates is—

(a) a statement to which Part 1 of Schedule 1 applies,
(b) contained in a report, copy, extract or summary referred
to in that Part, or
(c) contained in a determination referred to in that Part.

(4) Without prejudice to the generality of subsection (1), it shall
be a defence to a defamation action for the defendant to prove that
the statement to which the action relates is contained in a report,
copy or summary referred to in Part 2 of Schedule 1, unless it is
proved that the defendant was requested by the plaintiff to publish
in the same medium of communication in which he or she published
the statement concerned, a reasonable statement by way of explanation
or a contradiction, and has refused or failed to do so or has
done so in a manner that is not adequate or reasonable having regard
to all of the circumstances.
(5) Nothing in subsection (3) shall be construed as—

(a) protecting the publication of any statement the publication
of which is prohibited by law, or of any statement that is
not of public concern and the publication of which is not
for the public benefit, or
(b) limiting or abridging any privilege subsisting apart from
subsection (3).

(6) A defence under this section shall be known, and is referred
to in this Act, as the “defence of qualified privilege”.
(7) In this section—
“duty” means a legal, moral or social duty;
“interest” means a legal, moral or social interest.

19.—
(1) In a defamation action, the defence of qualified privilege
shall fail if, in relation to the publication of the statement in respect
of which the action was brought, the plaintiff proves that the defendant
acted with malice.
(2) The defence of qualified privilege shall not fail by reason only
of the publication of the statement concerned to a person other than
an interested person if it is proved that the statement was publishedto the person because the publisher mistook him or her for an
interested person.
(3) Where a defamation action is brought against more than one
defendant, the failure of the defence of qualified privilege in relation
to one of the defendants by virtue of the application of subsection (1) shall not cause the failure of the defence in relation to another
of the defendants unless that other defendant was vicariously liable
for such acts or omissions of the first-mentioned defendant as gave
rise to the cause of action concerned.
(4) Section 11(4) of the Civil Liability Act 1961 is repealed.
(5) In this section “interested person” means, in relation to a
statement, a person who, under section 18(2)(a), had a duty or
interest in receiving the information contained in the statement.

Onus would therefore be on the Garda to prove that the claim was brought with malice.

MagicSean

So all the Garda needs do is claim it is not true and show evidence to indicate it was a malicious complaint. It seems very easy. I wonder will anyone give it a try.

FreudianSlippers

k_mac wrote: »

So all the Garda needs do is claim it is not true and show evidence to indicate it was a malicious complaint. It seems very easy. I wonder will anyone give it a try.

Yeah, but realistically how easy it is to prove on the balance of probabilities that it was brought with malice?

MagicSean

OisinT wrote: »

Yeah, but realistically how easy it is to prove on the balance of probabilities that it was brought with malice?

If you could show a history of groundless complaints by the person who complained. Or if you could show a previous history with the Garda in question. This, along with the fact that the complaint was completely groundless would be a good start.

FreudianSlippers

k_mac wrote: »

If you could show a history of groundless complaints by the person who complained. Or if you could show a previous history with the Garda in question. This, along with the fact that the complaint was completely groundless would be a good start.

Oh, yeah that would make it much easier. I was kind of thinking as a once off thing really.

MagicSean

pirelli wrote: »

I would welcome laws in this area. There is tort deceit but it is more related to fraud then common values.

What do you mean treated as any false allegation made against someone?

Sorry missed your question. When someone makes a statement against another person, lets say for assault, they are given the witness declaration which allows them to be prosecuted for knowingly giving false information. I don't think there is the same declaration on a complaint form though, so I am wondering if a prosecution would still be possible.

pirelli

k_mac wrote: »

Sorry missed your question. When someone makes a statement against another person, lets say for assault, they are given the witness declaration which allows them to be prosecuted for knowingly giving false information. I don't think there is the same declaration on a complaint form though, so I am wondering if a prosecution would still be possible.

Obviously there is a difficutly here! It is a difficult area. Most employee are at mercy of their client. Clients can and do make complaints that can be untrue. It is no different than other employmee workplaces. So people have to be entitled to make complaints related to work as they can do with most other companies that run a customer charter.

Proving malice is hard and I would strongly support an all encompassing law that protects everybody from the corrupt HR manager to the member of public that makes false complaint by prosecution and civil suit. An expansion of the law of tort deceit into this are would be ideal.

There was a miscarrige of justice case similar to this scenario. It was called the James Harry Reyos case in canada where he was one of the first victims falsley accused of rape in what transpired to be a serial complainant that made over 30 false rape claims and was also blackmailing 20 men.

My miscarriges of Justice You tube page.

http://www.youtube.com/user/CentreDivide

It took a smart thinking reporter to figure it all out. So little sympathy from the police there and the police should be orientated towards solving miscarriges of justice and breaking their code of silence in cases with irregularities. Likewise the public should be aware of the seriousness of making false complaints and the stress and suffering it can cause. There should be a serious effort to investigate these claims through cctv etc and when they do find soemone had made a false report there should be a set law.

Regardless if it is the HR manager that lies in his findings or a witness lies etc.. there should be a set law to prosecute or sue with a long time limit.


In my experience there was a miscarriage of justice a long long time ago. Two eye witness statements were made, against what was meant to be the perpatrator. Some very serious iregularities were made by the Gardai. They are well able to blow the whistle when ever they should wish to.

Subsequently the two witnesses, it has transpired; both made entirely false statements. By false - it can shown to high degree that they were false statements.

I assume these witnesses can be prosecuted under the witness declaration if they knowingly gave false evidence. I am not sure on how high that bar is on 'knowingly' but if it's very high then they would likely get off.

Bosco boy

Personally if I had a solid case I would take legal action if gsoc didn't pursue it as they should, I would initially get my solicitor to write to gsoc asking them to pursue it and provide them with my statement of complaint, if the matter is not followed up on i would sue the person who made the false complaint and join the minister for justice, the attorney general and gsoc to the proceedings for their neglect, I'd get Nama to foot the bill if I lost!!

pirelli

Bosco boy wrote: »

Personally if I had a solid case I would take legal action if gsoc didn't pursue it as they should, I would initially get my solicitor to write to gsoc asking them to pursue it and provide them with my statement of complaint, if the matter is not followed up on i would sue the person who made the false complaint and join the minister for justice, the attorney general and gsoc to the proceedings for their neglect, I'd get Nama to foot the bill if I lost!!

What would you sue them for bosco.

Bosco boy

pirelli wrote: »

What would you sue them for bosco.

I'd sue for defamation and I reckon the inaction by gsoc where they have the powers to deal with it would have given credence to the initial false complaint which defamed me, the minister and attorney are there cause they employ gsoc, I think the lack of prosecutions in this regard from gsoc is effecting their credabiliy and they would have more respect even if they brought the odd case and they have plenty to choose from.

detective

Bosco boy wrote: »

I'd sue for defamation and I reckon the inaction by gsoc where they have the powers to deal with it would have given credence to the initial false complaint which defamed me, the minister and attorney are there cause they employ gsoc, I think the lack of prosecutions in this regard from gsoc is effecting their credabiliy and they would have more respect even if they brought the odd case and they have plenty to choose from.

Can GSOC investigate civilians in this regard? I thought they could only prosecute Gardai?

johnnyskeleton

One problem that might arise is that it is often the office of the Garda, rather than the individual who is the subject of the complaint.

For example, if a punter sues a garda for an actionable wrong committed while the garda is on duty, they would sue the Garda Commissioner rather than naming the individual Garda.

Arguably, if a complaint relates to how a garda exercised his powers (as opposed to, for example, a suggestion that a garda is extorting local drug delaers in exchange for protection) then even if it is false, is it defaming a garda?

If I say that Garda X was wrong to detain me for 7 hours without getting an extension under section 4, and it turns out that Garda X did get the extension, it is not exactly reducing the reputation of the individual garda in the eyes of right minded people. Even if Garda X did not get the extension, it wouldn't really affect a garda's repuation significantly IMO. Allegations that Gardai failed to comply with technical procedures occur on a daily basis - some are true others are not. Of the true ones, not all results in a benefit for the person making the accused, and I can't imagine they ever go to a garda's personal reputation.

By contrast, allegations along the lines of the Gardai in the Frank Short case or a garda caught with his finger in the till could very well be considered defamatory.

At the end of the day, I would imagine that some form of privilege attaches to Garda ombudsman complaints. Otherwise, you could have a situation where a garda honestly but incorrectly prosecutes someone with no recourse, but someone who complains honestly but incorrectly about a garda could be liable for defamation.

It's an interesting enough situation though, and if some garda has the readies to bring such a case it would be well worth watching.

Bosco boy

AFAIK gsoc can prosecute civilians but i might be wrong, definately there is a process to take a case to court and its in the 2005 act. I'm not talking about minor allegations but a serious allegation that impacts severely on the professional life and private life of the garda, i've heard some horror stories where serious criminals and scumbags have made malicious complaints against investigators who are investigating them in order to discredit them and threaten them, some allegations can be hanging over these gardai for long periods of time during which time their promotion prospects could be damaged as a result and the alleged story often appears in some shape or form in the media with a presumption of guilt, GSOC should follow these complaints up and its their duty to do so. They are around long enough to have some of these cases coming before the courts at this stage but they dont seen to care about this aspect of their work, maybe a legal case will wake them up!

CandleLight

k_mac wrote: »

If someone brought a false/vexatious complaint against a Garda via the ombudsman would the Garda have any recourse under the defamation act. I'm talking about complaints with absolutely no truth in them. Let's say the person accused a particular Garda of an assault or theft and an investigation showed that the complaint was totally made up. I would think it should be treatedin the same way as any false allegation made against someone. Or is there some protection provided to encourage people to complain.

Doesn't it have to be published to be defamation

Bosco boy

CandleLight wrote: »

Doesn't it have to be published to be defamation

I dont think so but i could well be wrong, I suppose you could sue for slander if it is the case that something needs to be published first and it hasnt been, maybe someone in the know could enlighten us as to the legal differences between slander and defamation and what is required to be proved in each case.

CandleLight

Bosco boy wrote: »

I dont think so but i could well be wrong, I suppose you could sue for slander if it is the case that something needs to be published first and it hasnt been, maybe someone in the know could enlighten us as to the legal differences between slander and defamation and what is required to be proved in each case.

http://www.irishstatutebook.ie/2009/en/act/pub/0031/sec0006.html#sec6

Bosco boy

Ya, i think there would be a good chance of a successfull case, defamation now incorporates slander and libel according to the act, the publication only has to be a statement published to two or more people. I reckon a complaint made to GSOC is a statement (published) obviously with an allegation and GSOC consists of more than two people. The correspondance generated from GSOC would pass through many other peoples hands at various stages as well. A story related to it in the paper would also be very relevant to the case and a press release from GSOC would also be very relevant if applicable.

CandleLight

Bosco boy wrote: »

Ya, i think there would be a good chance of a successfull case, defamation now incorporates slander and libel according to the act, the publication only has to be a statement published to two or more people. I reckon a complaint made to GSOC is a statement (published) obviously with an allegation and GSOC consists of more than two people. The correspondance generated from GSOC would pass through many other peoples hands at various stages as well. A story related to it in the paper would also be very relevant to the case and a press release from GSOC would also be very relevant if applicable.

not sure if that would constitute 'published'

Our man in Havana

It would not be published.

jenny jinks

CandleLight wrote: »

Doesn't it have to be published to be defamation

Sending a written complaint to GSOC would be publication. Publication simply means the statement is made to someone other than the person themselves.
In most cases qualified privilege will mean that there is no actionable defamation, but if the statement was made maliciously then the qualified privilege is lost.