Byrne v an Taoiseach and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Miss Justice Laffoy
• Judgment Date: 09 September 2010
• Neutral Citation: [2010] IEHC 353
• Docket Number: [2008 No. 2669 P]
• Date: 09 September 2010

Byrne & Ors v Taoiseach & Ors

IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

BETWEEN

DEREK BYRNE, MARGARET MCNICHOLL AND JUSTICE FOR THE FORGOTTEN LIMITED

PLAINTIFFS

AND

THE TAOISEACH, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

[2010] IEHC 353

[No. 2669P/2008]

THE HIGH COURT

FREEDOM OF INFORMATION

Access to records

Confidential evidence given in private to commission - Right to effective remedy - Whether plaintiffs entitled to access commission archive - Whether legally enforceable right of access to commission - Whether compatible with European Convention on Human Rights - Commission of Investigation Act 2004 (No. 23), ss 3, 11(3), 43(1) - Data Protection Act 1988 (No 25) - Freedom of Information Act 1997 (No 13) - National Archives Act 1986 (No 11), ss 2, 8 and 10 - Convention for the Protection of Human Rights and Fundamental Freedoms, articles 2, 6 and 13 Relief refused (2008/2669P - Laffoy J - 9/9/2010) [2010] IEHC 353

Byrne v An Taoiseach

HUMAN RIGHTS

European Convention

Direct effect - Application of Convention within State - Retrospective effect - Compatibility with European Convention on Human Rights - Obligation to conduct investigation - Right to life - Commission of Investigation into the Dublin and Monaghan bombings 1974 - Whether Convention provisions directly justiciable - Whether defendants' investigation compliant with domestic law obligations under Convention - Whether plaintiffs entitled to Convention compliant investigation - Whether obligations imposed by Act applied to deaths which occurred prior to enactment - Whether defendants breached obligations under Act of 2003 - In re Ó Laighléis [1960] IR 93 and Dublin City Council v. Fennell [2005] IESC 33, [2005] 1 IR 604 followed; Doyle v Commissioner of An Garda Síochána [1999] 1 IR 249, In re McKerr [2004] UKHL 12, [2004] 1 WLR 807, Brecknell v United Kingdom (2008) 46 EHRR 42, Lelimo v Minister for Justice [2004] IEHC 165, [2004] 2 IR 178, Magee v Farrell [2005] IEHC 388, (Unrep, Gilligan J, 26/10/2005), D v Residential Institutions Redress Review Committee [2008] IEHC 350, (Unrep, Ó Néill J, 11/11/2008) and O'Neill v An Taoiseach [2009] IEHC 119 (Unrep, Murphy J, 18/3/2009) considered - European Convention on Human Rights Act 2003 (No 20), ss 2, 3, 4, 5 and 9 - Commission of Investigation Act 2004 (No 23), ss 3, 11(3), 43(1) - Convention for the Protection of Human Rights and Fundamental Freedoms, articles 2, 6 and 13 - Relief refused (2008/2669P - Laffoy J - 9/9/2010) [2010] IEHC 353

Byrne v An Taoiseach

COMMISSIONS OF INVESTIGATION ACT 2004 S3

COMMISSIONS OF INVESTIGATION ACT 2004 S43(1)

CMSN OF INVESTIGATION INTO THE DUBLIN & MONAGHAN BOMBINGS OF 1974 - FINAL REPORT 2007 CHAP 11

COMMISSIONS OF INVESTIGATION ACT 2004 S43(2)

CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2

CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

COMMISSIONS OF INVESTIGATION ACT 2004 S11(3)

CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

COMMISSIONS OF INVESTIGATION ACT 2004 S11

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S1

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S9(2)

SILIH v SLOVENIA 2009 49 EHRR 37

CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

BLECIC v CROATIA 2005 41 EHRR 13

MCCANN & ORS v UNITED KINGDOM 1996 21 EHRR 97

VARNAVA & ORS v TURKEY UNREP 18.9.2009 2009 ECHR 1313

DVORACEK & DVORACKOVA v SLOVAKIA UNREP 28.7.2009 2009 ECHR 1225

BRECKNELL & ORS v UNITED KINGDOM 2008 46 EHRR 42

MCKERR v UNITED KINGDOM 2002 34 EHRR 20

LELIMO v MIN FOR JUSTICE 2004 2 IR 178 2004/27/6362 2004 IEHC 165

DPP (KELLY) v O'SULLIVAN UNREP DUNNE 11.10.2005 2005/22/4525 2005 IEHC 389

D (J) v RESIDENTIAL INSTITUTIONS REDRESS REVIEW COMMITTEE & ORS 2009 2 ILRM 65 2008/11/2146 2008 IEHC 350

DUBLIN CITY COUNCIL v FENNELL 2005 1 IR 604 2005 2 ILRM 288 2005/17/3473 2005 IESC 33

HOUSING ACT 1966 S62

MCKERR, IN RE 2004 1 WLR 807 2004 2 AER 409 2004 NI 212

HUMAN RIGHTS ACT 1998 S6 (UK)

R (HUNT) v LONDON NORTHERN DISTRICT CORONER 2007 2 AC 189 2007 2 WLR 726 2007 2 AER 1025

HUMAN RIGHTS ACT 1998 S3 (UK)

HUMAN RIGHTS ACT 1998 S2 (UK)

MCD (J) v L (P) & M (B) 2010 1 ILRM 461 2009/34/8411 2009 IESC 81

R (ULLAH) v SPECIAL ADJUDICATOR 2004 2 AC 323 2004 3 WLR 23 2004 3 AER 785

O LAIGHLEIS, IN RE 1960 IR 93

CONSTITUTION ART 29

DOYLE v CMSR OF AN GARDA SIOCHANA 1999 1 IR 249

COMMISSIONS OF INVESTIGATION ACT 2004 PART III

COMMISSIONS OF INVESTIGATION ACT 2004 S11(1)(A)

COMMISSIONS OF INVESTIGATION ACT 2004 S11(1)(B)

COMMISSIONS OF INVESTIGATION ACT 2004 S11(3)(C)

COMMISSIONS OF INVESTIGATION ACT 2004 S11(3)(D)

COMMISSIONS OF INVESTIGATION ACT 2004 S11(4)

COMMISSIONS OF INVESTIGATION ACT 2004 S11(5)

COMMISSIONS OF INVESTIGATION ACT 2004 PART V

COMMISSIONS OF INVESTIGATION ACT 2004 PART VI

COMMISSIONS OF INVESTIGATION ACT 2004 S39

COMMISSIONS OF INVESTIGATION ACT 2004 S40

COMMISSIONS OF INVESTIGATION ACT 2004 S41

DATA PROTECTION ACT 1988 S4

COMMISSIONS OF INVESTIGATION ACT 2004 S41(1)

NATIONAL ARCHIVES ACT 1986 S2(2)

NATIONAL ARCHIVES ACT 1986 S8(4)

SHANAGHAN v UNITED KINGDOM 2001 INQUEST LR 149

FINUCANE v UNITED KINGDOM 2003 37 EHRR 29 2003 1 POL LR 323 2003 AER (D) 25 (JUL) 2003 INQUEST LR 157

KHALITOVA v RUSSIA UNREP ECHR 5.3.2009 (APPLICATION NO 39166/04)

COMMISSIONS OF INVESTIGATION ACT 2004 S43(3)

COMMISSIONS OF INVESTIGATION ACT 2004 S45

COMMISSIONS OF INVESTIGATION ACT 2004 S45(1)

NATIONAL ARCHIVES ACT 1986 S10(6)

NATIONAL ARCHIVES ACT 1986 S10

NATIONAL ARCHIVES ACT 1986 S8

NATIONAL ARCHIVES ACT 1986 S10(1)

O'NEILL & ORS v AN TAOISEACH & ORS UNREP MURPHY 18.3.2009 2009/45/11362 2009 IEHC 119

1 Judgment of Miss Justice Laffoy delivered on the 9th day of September, 2010.

1. The factual background

2 2 1.1 These proceedings arise out of the atrocities which have become known as the Dublin and Monaghan Bombings, which occurred on 17 ^th May, 1974. The first plaintiff was seriously injured as a result of the car bomb explosion in Parnell Street in Dublin City on that day. The second plaintiff is a sister of Mary McKenna, who was killed as a result of the car bomb explosion in Talbot Street in the City of Dublin on the same day. The third named plaintiff is a body corporate which was established to provide support for, and advance the interests of, those bereaved and injured as a result of the Dublin and Monaghan bombings.

3 3 1.2 These proceedings are the result of dissatisfaction on the part of the plaintiffs with the police investigations and other investigations and inquiries which have been carried out by the State into the atrocities, in which 33 people lost their lives and almost 300 people were injured. The following outline of the relevant facts is almost exclusively a chronology of the investigations and inquiries carried out by organs of the State since 1974 and is based on a statement of facts filed on behalf of the plaintiffs on 15 ^th October, 2009 and the appendix to the written submissions of the defendants filed on 14 ^th October, 2009 on the chronology of the investigations and inquiries in relation to the bombings.

4 4 1.3 An investigation by An Garda Síochána began immediately following the bombings. That first phase of the investigation came to an end in August 1974. Between 1974 and 1979, further inquiries were carried out in response to further information. Between 1980 and 1987, no new information was added to Garda files.

5 5 1.4 What precipitated the next stage of the investigation was the broadcasting on 6 ^th July, 1993 of a Yorkshire Television documentary entitled "Hidden Hand - The Forgotten Massacre". That programme raised concerns as to the existence of collusion between Loyalist paramilitaries and members of the security forces in Northern Ireland in connection with the bombings. Following that broadcast, there were further investigations by the Gardaí through 1993 and 1994. Material was sent to the Director of Public Prosecutions in March 1994 but no prosecution ensued, because the Director was of the opinion that there was no evidence on which a prosecution could be initiated, nor was there any further line of inquiry which might alter the situation. Nonetheless, the inquiries continued through 1994. On the 21 ^st anniversary of the bombings on 17 ^th May, 1995, the Minister for Justice met representatives of the bereaved and injured and, in a statement issued following the meeting, she indicated that the crimes would remain an "open case" and, if any lead should emerge which might bring the culprits to justice, it would be pursued vigorously.

6 6 1.5 While this stage is not included in the defendants' chronology, as a result of the Good Friday Agreement, which was signed on 10 ^th April, 1998 and ratified on 22 ^nd May, 1998, which recognised the needs of victims of violence and contained commitments to acknowledge and address their suffering, John Wilson, former Tánaiste, was appointed Victims Commissioner on 25 ^th June 1998. The report of the Victims Commission, which was published on 6 ^th August, 1999 made recommendations in relation to an inquiry into the Dublin and Monaghan bombings.

7 7 1.6 Before that report was published, however, an event occurred which triggered further Garda investigations. In January 1999, John Weir, who was a former member of the Royal Ulster Constabulary (RUC) and who had served a prison sentence for his...