Emma Kelly v The Attorney General and Ireland
| Jurisdiction | Ireland |
| Judge | Ms. Justice Niamh Hyland |
| Judgment Date | 12 May 2022 |
| Neutral Citation | [2022] IEHC 273 |
| Court | High Court |
| Docket Number | RECORD NO. 2021/9JR |
[2022] IEHC 273
RECORD NO. 2021/9JR
THE HIGH COURT
Judicial review – Leave – Inquest – Applicant seeking judicial review – Whether the applicant had met the threshold of an arguable case
Facts: The applicant, Ms Kelly, applied to the High Court for leave to seek judicial review in respect of a decision made by the first respondent, the Attorney General, on 16 October 2020 declining to exercise his powers under s. 24 of the Coroners Act 1962 to order a fresh inquest. The heart of the applicant’s case was that she was entitled to an investigation into the Garda investigation compatible with Article 2 of the European Convention on Human Rights (the ECHR). She argued that both the inquest and the inquiry were not compatible with what is required to vindicate the ECHR right to what she described as “an investigation into an investigation” and asked that the Attorney General be directed to order such an inquiry. The Attorney appeared to have accepted for the purpose of his response that there was an entitlement to an inquiry in the form identified by the applicants i.e. an ECHR compatible inquiry. His position was that the inquest met those requirements, and that the subsequent inquiry did not suffer from the flaws identified by the applicant. The applicant disagreed with that position and sought to judicially review his conclusion that none of those principles had been breached.
Held by Hyland J that, given that she was to take the applicant’s arguments at their height, the applicant had put enough material before the Court that, if accepted, formed the basis for a stateable case that the inquest and inquiry did not meet the necessary threshold. Hyland J held that the applicant should be given leave in respect of all reliefs identified and all grounds in the Statement of Grounds, save for the relief at paragraph 3.2 of the Statement of Grounds: “An order of mandamus that the First Respondent exercise his powers pursuant to Section 24 of the 1962 Act and order the holding of a fresh inquest touching upon the circumstances of the death of [Mr] Kelly (deceased).” Hyland J held that it is the role of the Attorney General to decide whether to direct an inquest under s. 24 and considerable discretion is given to him or her in this regard. Hyland J held that this function cannot be usurped by the Courts. Given the wording of s. 2 of the European Convention on Human Rights Act 2003, which requires a court interpreting a statutory provision to do so as far as possible in a manner compatible with the State’s obligations under the Convention provisions, it seemed to Hyland J that the relief identified at paragraph 3.3 of the Statement of Grounds, insofar as it referred to obligations under Article 2 of the ECHR, should not necessarily be interpreted at the leave stage as requesting the Court to take a step not permitted by the 2003 Act.
Hyland J granted leave in respect of all the reliefs sought save for the relief identified at paragraph 3.2.
Leave granted.
JUDGMENT of Ms. Justice Niamh Hyland delivered on 12 May 2022
This is a contested application for leave to seek judicial review in respect of a decision made by the Attorney General on 16 October 2020 declining to exercise his powers under s.24 of the Coroners Act 1962 (“the 1962 Act”) to order a fresh inquest. The applicant is the sister of John Kelly who died tragically by drowning on 16 October 2008 at Britain Quay, Dublin 2. Following John's death, an inquest was commenced on 27 May 2009 and was adjourned to 24 September 2009. The conclusion of the inquest was that John died by misadventure. No challenge was brought to that finding.
Following that inquest John's family made representations about the Garda response on the night of John's death and in respect of the investigation. As Ms. Kelly identifies in her grounding affidavit sworn 7 January 2021 in these proceedings, the response and investigation was the focus of “intense criticism and lobbying by my family and me”.
An inquiry was established under S.I. No. 198/2017, Garda Síochána Act 2005 (Section 42) (Special Inquiry relating to the Garda Síochána) (No. 3) Order 2017. On 15 May 2017 Mr. Justice Herbert was appointed to conduct an inquiry under s.42 of the 2005 Act and to inquire into:
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(i) Responses made on the night of the death of Mr. John Kelly at Britain Quay, Dublin 2 on 17 October 2008 by the Garda Síochána, and
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(ii) The conduct and adequacy of the Garda Síochána investigation conducted thereafter.
The report of the inquiry was released on 4 December 2018. That report was critical of the Garda investigation, and concluded inter alia that the response made on the night of the death of the deceased by An Garda Síochána was “confused, inappropriate and inadequate”. On the other hand, the conduct and adequacy of the investigation conducted thereafter by An Garda Síochána was “thorough and sufficient”. Judicial review proceedings were brought by the applicant to challenge the findings of that inquiry but they were ultimately abandoned by her.
In 2019, some 11 years after the death of John Kelly, Ms. Kelly sought a new inquest. There is a provision in the 1962 Act for the Attorney General to direct a coroner to hold an inquest. Section 24(1) provides as follows:
“Where the Attorney General has reason to believe that a person has died in circumstances which in his opinion make the holding of an inquest advisable he may direct any coroner (whether or not he is the coroner who would ordinarily hold the inquest) to hold an inquest in relation to the death of that person, and that coroner shall proceed to hold an inquest in accordance with the provisions of this Act (and as if, not being the coroner who would ordinarily hold the inquest, he were such coroner) whether or not he or any other coroner has viewed the body, made any inquiry, held any inquest in relation to or done any other act in connection with the death.”
That makes it clear that even where an inquest has already been held, the Attorney General may direct a coroner to hold an inquest where the Attorney has reason to believe that a person has died in circumstances which in his opinion make the holding of an inquest advisable.
The wording of the section suggests a very significant discretion is given to the Attorney in making a decision on whether to direct an inquest. This is confirmed by the decision of Keane C.J. in Farrell v AG [1998] 1 IR 203 which concerned a challenge by way of judicial review to the decision of the Attorney General to direct the holding of a second inquest. Keane C.J. confirmed that the standard of review to be applied to decisions made by the Attorney General under s.24(1) was the test identified in O'Keeffe v. An Bord Pleanála [1993] 1 IR 39 i.e. that where it is alleged a decision-making authority has acted irrationally, the applicant must establish that the authority in question had before it no relevant material which would support its decision. It may be that the scope of the test has altered somewhat in subsequent years, in particular given the expansion of the test of proportionality, but that is not a matter I need to decide in this application for leave.
On 1 October 2019, solicitors for Ms. Kelly wrote to the Attorney General identifying why a second inquest was, according to her, necessary. They argued that there was an obligation under Article 2 of the European Convention on Human Rights (“the ECHR”) to have an effective and independent...
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