Magee v Farrell and Others
|Mr Justice Finnegan
|28 July 2009
| IESC 60
|[S.C. No. 439 of 2005]
|28 July 2009
 IESC 60
THE SUPREME COURT
Access to courts
Legal aid - Inquest - Whether right to legal aid at inquest - Constitutional right to State funded legal aid - Whether State required to provide State funded legal aid or assistance to attend and participate in son's inquest - Difference between criminal proceedings and those before coroner - O'Donoghue v Legal Aid Board Criminal Justice (Legal Aid) Act 1962 (No 12), s 2(1) - Criminal Justice (Miscellaneous Provisions) Act 1997 (No 4), s 5(6) - Constitution of Ireland 1937, Article 38 - Defendants' appeal allowed (439/2005 - SC - 28/7/2009)  IESC 60 approved; Forrest v Legal Aid Board (Unrep, O'Hanlon J, 4/12/1992) and Stevenson v Landy (Unrep, Lardner J, 10/2/1993) distinguished -
Magee v Farrell
Facts: The respondent was the mother of a nineteen year old male who died in Garda custody following an arrest for public order offences. An inquest was scheduled to take place on 12 February 2004 and the respondent sought legal representation in respect of the inquest but was advised there was no publicly funded provision for legal aid for an inquest. Consequently, the respondent instituted the present proceedings. It was accepted that the respondent did not have the financial means to secure appropriate legal representation at the inquest. The learned trial judge in the High Court found in favour of the respondent, holding that fair procedures under the Constitution required that she be provided with legal aid. The appellant submitted that the entitlement to legal aid arising from Article 38 of the Constitution was limited to criminal proceedings. The respondent replied upon three decisions of the High Court upon which the learned trial judge had also relied, namely, Stevenson v Landy & Ors, Unreported High Court, 10/02/1993, Kirwan v Minister for Justice and Ors,  1 I.L.R.M. 444 and O'Donoghue v The Legal Aid Board and Ors  I.E.H.C. 413.
Held by the Supreme Court; Finnegan J (Murray C.J., Fennelly J.) in allowing the appeal and setting aside the High Court order: That a right to legal representation did not carry with it a right to State funded legal aid. None of the cases relied upon by the respondent supported her claim to an entitlement under the Constitution to State funded legal aid beyond the circumstances identified in The State (Healy) v Donoghue  I.R. 325 (where the liberty of an individual was in issue before the Criminal Courts), nor did they support an entitlement to State funded legal aid in connection with an inquest. An inquest was an inquisitorial process, it was a fact finding exercise and not a method of apportioning guilt or establishing civil liability. There was no constitutional right in a person entitled to attend before and be represented at an inquest to State funded legal representation.
CORONERS ACT 1962
CONSTITUTION ART 38
HEALY, STATE v DONOGHUE & ORS
O, STATE v DALY
K SECURITY LTD & KAVANAGH v IRELAND & AG UNREP GANNON 15.7.1977 1977/5/886
CONDON v CIE & ORS UNREP BARRINGTON 16.11.1984 1985/1/52
C (M) v LEGAL AID BOARD & ORS 1991/11/2681
CORCORAN v MIN FOR SOCIAL WELFARE & ORS 1991/8/1761
BYRNE v JUDGE SCALLY & DUBLIN CORP UNREP O CAOIMH 12.10.2000 2000/3/1065
MALOCCO v DISCIPLINARY TRIBUNAL UNREP CARROLL 16.10.2002 2002//3861
MCBREARTY v JUDGE MORRIS UNREP PEART 13.5.2003 2003/39/9373
A (A) v MEDICAL COUNCIL UNREP O CAOIMH 28.4.2003 2003/1/1
STEVENSON v LANEY & ORS UNREP LARDNER 10.2.1993 1993/5/1430
KIRWAN v MIN FOR JUSTICE & ORS 1993/12/3851
O'DONOGHUE v LEGAL AID BOARD & ORS 2004 IEHC 413 2004/38/8872
MCKEOWN, STATE v SCULLY 1985/6/1392
CONSTITUTION ART 40.3
REGULATION OF RAILWAYS ACT 1871
FORREST v LEGAL AID BOARD & ORS UNREP O'HANLON 4.12.1992 1993/2/530
MCCAULEY v MIN FOR POSTS & TELEGRAPHS
CONSTITUTION ART 40
MCCANN & ORS v UNITED KINGDOM 1996 21 EHRR 97
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2.1
Judgment of Mr Justice Finnegandelivered on the 28th day of July 2009
Judgment delivered by Finnegan J [nemdiss]
Paul Magee ("the deceased") died on the 26 th December 2002. He was nineteen years of age. He had been arrested by Gardai for public order offences at the home of a friend where he was displaying signs suggestive of paranoid delusions. He was taken to Kilmainham Garda Station where he was handcuffed and placed in a cell. Shortly afterwards he was found to be in an unconscious state. He was taken by ambulance to St. James's Hospital where following attempts to resuscitate him he was pronounced dead. A post mortem was carried out by the Assistant State Pathologist, Dr. Marie Cassidy, on the 27 th December 2002. Toxicological examination showed recent use of cocaine. Dr. Cassidy's ultimate conclusion was that the death was consistent with cocaine related collapse. The respondent in paragraph 6 of the statement of claim pleads as follows:-
2 "6. Serious questions arise concerning the deceased's death at a time when he was being kept in involuntary custody including questions asto the extent to which the State or its agents were responsible through gross negligence or otherwise for the death of the deceased. The plaintiff and the family of the deceased have not been kept adequately apprised of developments and/or informed of the results of investigations and/or consulted in the context of investigations. Moreover the plaintiff has not been advised of a cause of death."
The respondent's concerns are amplified somewhat by the submissions made in this court. It is submitted that serious questions arise concerning the deceased's death while in custody as to the treatment of the deceased and the speed with which medical intervention was sought. Underlying these concerns may be the circumstance that the deceased had a history of previous convictions including convictions for assaulting Gardai. Further the post-mortem examination showed widely scattered surface bruising and minor injuries without any significant internal trauma and which injuries could have occurred in a minor scuffle. These injuries would not normally be expected to cause or contribute to death especially as there was no evidence of any internal trauma of any significance.
An inquest was scheduled to commence on the 12 th February 2004. The plaintiff sought legal representation in respect of the inquest but was advised that there was no publicly funded provision for legal aid for an inquest. The present proceedings were instituted and because of this the inquest has not yet taken place and no death certificate recording the cause of death has issued.
While the statement of claim prays several reliefs it was accepted by counsel for the parties before the High Court that the only issue was whether or not the plaintiff is entitled to the provision by the State of publicly funded legalrepresentation at the inquest to be held into the death of the deceased. There was no oral evidence in the High Court the material circumstances having been agreed between the parties. It was accepted by the appellant that the plaintiff does not have the necessary financial means to secure appropriate legal representation at the inquest.
The learned trial judge found in favour of the respondent in the following terms:-
"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, it appears reasonable to come to the conclusion, applying the rationale of Kelly J. in O'Donoghue v The Legal Aid Board and Lardner J. in Stevenson v Landy & Others and Kirwan v Minister for Justice, that, due to the unfortunate circumstances of the plaintiff in the present case and the fact that her son's death occurred within a very short period of time of him becoming unconscious while in the custody of An Garda Siochána, fair procedures under the Constitution require that she be provided with legal aid for the purpose of being adequately represented at the forthcoming inquest into her son's death."
The order of the court required the second, third and fourth named defendants to provide publicly funded legal representation to the plaintiff in respect of the inquest. The first named respondent took no part in the proceedings in the High Court or in this court.
In the High Court the defendant's case revolved around two issues namely:-
(a) Whether the State is in law required to provide the plaintiff with State publicly funded legal aid or assistance and so that she could attend at and participate in the inquest held into her son's death.
(b) Whether in the circumstances of this case and insofar as they are known or ascertained at this point, an inquest commenced under and in accordance with the provisions of the Coroners Act 1962 satisfies the State's duty to vindicate the right to life of the deceased and the State's related or ancillary duty to provide an effective independent mode of investigation or inquiry into the circumstance of the deceased's death.
Following discussion between the learned trial judge and counsel the respondent proceeded on the...
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