Magee v Farrell and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Gilligan
• Judgment Date: 26 October 2005
• Neutral Citation: [2005] IEHC 388
• Court: High Court
• Date: 26 October 2005

[2005] IEHC 388

THE HIGH COURT

[No. 1481 P/2004]

MAGEE v FARRELL & ORS

BETWEEN

THERESA MAGEE

PLAINTIFF

AND

BRIAN FARRELL, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

CONSTITUTION ART 38

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

DUBLIN CITY COUNCIL v FENNELL 2005 2 ILRM 288

MCKERR, RE 2004 1 WLR 807 2004 2 AER 409

LELIMO v MIN FOR JUSTICE 2004 2 IR 178

CORONERS ACT 1962 S17

CORONERS ACT 1962 S30

CIVIL LEGAL AID ACT 1995 S27

CIVIL LEGAL AID ACT 1995 S28

CONSTITUTION ART 40.3.1

STEPHENSON v LANDY UNREP LARDNER 10.2.93 1993/5/1430

KIRWAN v MIN JUSTICE 1994 2 IR 417

TRIAL OF LUNATICS ACT 1883

O'DONOGHUE v LEGAL AID BOARD & ORS UNREP KELLY 21.12.2004 2004/38/8872

MCKEOWN, STATE v SCULLY 1986 IR 524 1986 ILRM 133

O'SHAUGHNESSY v AG UNREP O'KEEFFE 16.2.1971

CRIMINAL JUSTICE (LEGAL AID) ACT 1962C

(M) v LEGAL AID BOARD 1991 2 IR 43

HEALY, STATE v O'DONOGHUE 1976 IR 325

MCBREARTY v MORRIS & AG UNREP PEART 13.5.2003 2003/39/9373

SINNOTT v MIN EDUCATION 2001 2 IR 545

D (T) v MIN EDUCATION 2001 4 IR 259

RYAN v AG 1965 IR 294

Abstract:

Inquest - Legal aid - Constitutional rights - Whether the plaintiff was entitled to the provision by the State of legal representation to her in respect of the inquest to be held into the death of her son - Civil Legal Aid Act, 1995

Facts: The plaintiff, whose son collapsed while in the custody of the Garda Siochana and died a short time later, sought legal representation in respect of the inquest into her son's death. However, she did not have the necessary financial means to secure such representation. The plaintiff claimed that the failure of the State to provide for a publicly funded system of legal aid in respect of enquiries into the death of persons in state custody, in circumstances where they could not be reasonably expected to effectively represent themselves, constituted a breach of the constitutional right to life and a breach of a right to fair procedures and right of access to an effective remedy.

Held by Gilligan J. in favour of the plaintiff That having regard to the fact that the coroner presides over the relevant inquest and his role is judicial in nature, that the inquest of itself is inquisitorial and that a jury will record a verdict, and further considering the circumstances of this case, fair procedures under the Constitution required that the plaintiff be provided with legal aid for the purpose of being adequately represented at the forthcoming inquest into her son's death.

Reporter: L. O'S.

1 JUDGMENT of Mr. Justice Gilliganas delivered on the 26th day of October, 2005.

Factual Background

2 The plaintiff is the mother and next of kin of the late Paul Magee (born 19/09/1983) who was taken into garda custody on 26th December, 2002. The late Paul Magee had been arrested by Gardaí for public order offences, at the home of a friend where he was displaying signs suggestive of paranoid delusions.

3 On arrival at Kilmainham Garda Station, he was placed, handcuffed, in a Garda cell where after a short period he was observed to be in an unconscious state. An ambulance was requested and CPR was performed by the Gardaí on duty. Shortly afterwards he was transferred to St James” Hospital where, following attempts to resuscitate him, he was pronounced dead.

4 The plaintiff argues that several issues arise concerning the deceased's death at a time when he was being kept in Garda custody including questions as to his treatment in custody and the extent to which the State or its agents were responsible through gross negligence or otherwise for the death of the deceased. The plaintiff claims that she has not been kept adequately informed of the circumstances surrounding her son's death and she claims the full facts have not yet emerged.

5 A post-mortem was carried out by the Assistant State Pathologist Dr. Marie Cassidy on 27 December, 2002. Toxicological examination showed recent use of cocaine. Dr. Cassidy's ultimate conclusion was that the death was consistent with cocaine related collapse.

6 An inquest was scheduled to commence on 12th February, 2004, but because of the institution of these proceedings that inquest has not yet taken place.

7 The plaintiff sought legal representation in respect of the inquest but was advised that there is no publicly funded provision for legal aid for inquests. For the purposes of adjudication of this case, the defendants accept that the plaintiff does not have the necessary financial means to secure appropriate legal representation at the inquest to represent her interest arising on her son's death.

8 The plaintiff claims against each of the defendants for their failure and/or refusal to take appropriate steps to protect the right to life of the deceased through the provision of an effective independent judicial system to establish the cause of death which said failure and/or refusal constitutes a breach of Article 38 and/or Article 40.1 and/or Article 40.3 of the Constitution and/or Article 2 and/or Article 13 of the European Convention on Human Rights and she seeks a variety of reliefs including:

9 1. An order directing the provision of legal representation to her in respect of the inquest to be held into the death of her son, Paul;

10 2. An interlocutory order, if necessary restraining the conduct of an inquest pending a determination of the proceedings herein;

11 3. Further and/or in the alternative damages pursuant to section 3 of the European Convention on Human Rights Act, 2003 for breach of Convention rights and also damages for breach of constitutional rights;

12 4. A declaration that the right to life protected by Article 40.1 and /or Article 40.3 of the Constitution and/or Article 2 of European Convention on Human Rights requires the defendants or each of them to take appropriate steps to safeguard the lives of those within the jurisdiction through the provision of an effective independent judicial system to be set up so that the cause of death of individuals who die in state care and/or custody can be determined.

Relevance of the European Convention on Human Rights

13 The European Convention on Human Rights became part of domestic law through the European Convention on Human Rights Act, 2003 on 31 December, 2003. In the Supreme Court decision of Dublin City Council v. Fennell (Unreported, Supreme Court, 12 May, 2005), Kearns J. noted that the Act of 2003 does not purport to incorporate the Convention directly into domestic law:

"[R]ather [it] impose[d] an obligation that, when interpreting or applying any statutory provision or rule of law, a court shall, insofar as is possible, and subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State's obligations under the Convention provisions".

14 In Dublin City Council v. Fennell, a consultative case stated was referred to the Supreme Court by the Circuit Court on the issue of whether the Act of 2003 could have retrospective effect to proceedings that had already been commenced before the Act came into operation. Having examined the recent House of Lords decision in Re McKerr [2004] 2 ALL ER 409 and the judgment of Laffoy J in Lelimo v. The Minister for Justice, Equality and Law Reform [2004] 2 I.R. 178 Kearns J stated at page 38:

"I am satisfied … that the 2003 Act cannot be seen as having retrospective effect or as affecting past events"

15 Thus the plaintiff's claim for the provision of a publicly funded legal representation in respect of the inquest must fail insofar as it is grounded upon the provisions of the European Convention on Human Rights (as implemented by the Act of 2003) as the Act was not in force on the relevant date of the event to which the inquest relates. Thus it appears that the plaintiff's claim must fall back on constitutional grounds.

16 It is accepted by Counsel for both parties in the circumstances that arise that the only relevant issue to be decided by this Court is as to whether or not the Plaintiff is entitled to the Provision by the State of legal representation to her in respect of the inquest to be held into the death of her son Paul.

Role of the Coroner

17 The law in Ireland concerning the function of the Coroner is governed by the Coroners Act, 1962.

18 Under the Act, the primary duty of the Coroner is to hold an inquest where he has been informed that a body of a deceased person is lying within his district and he

"is of [the] opinion that the death may have occurred in a violent or unnatural manner, or suddenly and from unknown causes or in a place or in circumstances which, under provisions in that behalf contained in any other enactment, require that an inquest should be held". (Section 17)

19 The coroner has a general public duty to act objectively and impartially at all times. It is accepted that the role of the Coroner is judicial in nature. He presides, inter alia, over inquests. At the conclusion of the inquest he must address the jury and thereafter record a verdict.

20 The scope of the inquest is described by section 30 of the Coroners Act, 1962.

21 Section 30 provides:

"Questions of civil or criminal liability shall not be considered or investigated at an inquest and accordingly every inquest shall be confined to ascertaining the identity of the person in relation to whose death the inquest is being held and how, when and where the death occurred."

22 Thus a Coroner at an inquest is not concerned with civil or criminal liability though the proceedings are inquisitorial in nature.

Right to legal aid

23 The Civil Legal Aid Act 1995 refers to both...