Thomas Fox v The Minister for Justice and Equality, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 14 September 2021
• Neutral Citation: [2021] IESC 61,[2020] IECA 141
• Court: Supreme Court
• Docket Number: [Appeal No: 12/2021]

Between/

Thomas Fox

Plaintiff/Appellant

and

The Minister for Justice and Equality, Ireland and The Attorney General

Defendants/Respondents

[2021] IESC 61

Clarke C.J.

O'Donnell J.

MacMenamin J.

Dunne J.

Charleton J.

O'Malley J.

Baker J.

[Appeal No: 12/2021]

THE SUPREME COURT

Murder – Investigation – Procedure – Appellant seeking that the respondents establish two Commissions of Investigation – Whether Article 2 of the European Convention on Human Rights carries an obligation for the State to carry out an effective inquiry into the circumstances of a death

Facts: Mr Ludlow was murdered on the 2 May, 1976 near Dundalk, Co. Louth. It was suggested by the family of Mr Ludlow that the murder was carried out by loyalist paramilitaries. It was also suggested that there may have been an involvement by security forces within the United Kingdom and that members of An Garda Síochána might, in some way, have been ordered not to carry out an appropriate investigation. The appellant, Mr Fox, a nephew of Mr Ludlow, commenced proceedings seeking initially that the respondents, the Minister for Justice and Equality, Ireland and the Attorney General, establish two Commissions of Investigation under the Commission of Investigation Act 2004, the first to investigate the Garda handling of the original investigation into Mr Ludlow’s murder and the second to investigate missing garda documents. Those proceedings failed in the High Court ([2017] IEHC 817). An appeal by Mr Fox to the Court of Appeal was dismissed ([2020] IECA 141). Mr Fox sought and obtained leave to appeal to the Supreme Court. The Court concluded that there was a general public interest in clarifying the extent of the procedural obligations of the State under Article 2 of the European Convention on Human Rights (ECHR), in particular whether that Article carries an obligation for the State to carry out an effective inquiry into the circumstances of a death or whether any such obligation is confined to the identification and punishment of the perpetrators of a crime. The Court also found that a question arose as to whether any obligation can arise under Article 2 in respect of a death that occurred before the effective date of application of the ECHR in Ireland, but where certain material facts came to light thereafter. It was also determined by the Court that the appeal was in the interests of justice, as it may bring some finality to the family of Mr Ludlow.

Held by Clarke CJ that the real issue of controversy between the parties was as to whether there was a continuing obligation, either under the Constitution or under the ECHR as applied in the domestic law of the State, to conduct further inquiries. Clarke CJ found that if there was a realistic basic for believing that more could be learned about the circumstances surrounding the death of Mr Ludlow, then such obligations might potentially arise. However, not being satisfied that there was any obligation, either under the Constitution or under the ECHR, to conduct a so-called “investigation into an investigation”, Clarke CJ did not consider that it had been established that there were continuing obligations on the State to conduct further inquiries.

Clarke CJ proposed that the appeal be dismissed but on slightly different grounds to those adopted by the Court of Appeal.

Appeal dismissed.

Judgment of Mr. Justice Clarke, Chief Justice, delivered the 14th of September, 2021

1. Introduction

1.1 There is no doubt but that the right to life guaranteed by the European Convention on Human Rights (“ECHR”) carries with it an obligation on subscribing states to carry out investigations into certain situations where persons may have been killed in circumstances potentially involving state agents. It is also argued on behalf of the appellant (“Mr. Fox”) that the right to life guaranteed under the Constitution carries with it either the same or a similar obligation.

1.2 A Mr. Seamus Ludlow was murdered on the 2 May, 1976 near Dundalk, Co. Louth. It is suggested by the family of Mr. Ludlow that the murder was carried out by loyalist paramilitaries. More controversially it is also suggested that there may have been an involvement by security forces within the United Kingdom and, more controversially still, that members of An Garda Síochána might, in some way, have been ordered not to carry out an appropriate investigation.

1.3 Against that backdrop, Mr. Fox, who is a nephew of Mr. Ludlow, commenced these proceedings seeking initially that the defendants/respondents (“the Minister”) establish two Commissions of Investigation under the Commission of Investigation Act 2004 (“the 2004 Act”), the first to investigate the Garda handling of the original investigation into Mr. Ludlow's murder and the second to investigate missing garda documents. Ultimately those proceedings failed in the High Court (see, Fox v. The Minister for Justice and Equality & Ors. [2017] IEHC 817). An appeal by Mr. Fox to the Court of Appeal was dismissed (see the judgment of Birmingham P., speaking for the Court – Fox v. The Minister for Justice and Equality and Ors [2020] IECA 141). Mr. Fox sought and obtained leave to appeal to this Court.

2. The Grant of Leave to Appeal

2.1 The basis on which this Court granted leave to appeal is set out in a determination of this Court, dated the 11 March, 2021 (see, Fox v. the Minister for Justice and Law Reform & Anor. [2021] IESCDET 30).

2.2 In substance, the Court concluded in its determination that there was a general public interest in clarifying the extent of the procedural obligations of the State under Article 2 of the ECHR, in particular whether that Article carries an obligation for the State to carry out an effective inquiry into the circumstances of a death or whether any such obligation is confined to the identification and punishment of the perpetrators of a crime. The Court also found that a question arose as to whether any obligation can arise under Article 2 in respect of a death that occurred before the effective date of application of the ECHR in Ireland, but where certain material facts came to light thereafter. It was also determined by the Court that the appeal was in the interests of justice, as it may bring some finality to the family of Mr. Ludlow. On these grounds, leave to appeal was granted.

3. The Issues

3.1 At an initial case management hearing there was broad agreement as to the issues which arise. While such issues could be characterised in a number of different ways, one useful way of specifying the matters which the Court will have to determine is the following.

3.2 First, there is what has come to be termed the temporal issue. As a result of Art. 29.6 of the Constitution, international treaties do not form part of the domestic law of Ireland unless and until the Oireachtas so determines. While Ireland was an initial ratifying contracting party to the ECHR, it was only by means of the European Convention on Human Rights Act 2003 (“the 2003 Act”), that the Convention became part of the domestic law of Ireland. The extent to which the ECHR forms part of the domestic law of Ireland is as specified in the 2003 Act. Amongst other things, it has previously been held that the 2003 Act is not retrospective in its effect (see, for example, Dublin City Council v. Fennell [2005] IESC 33). It is obvious, therefore, that the murder of Mr. Ludlow occurred long before the ECHR had effect in domestic law.

3.3 However, it is argued that the obligations of the State under the ECHR are engaged in this case. It is first said that obligations under the ECHR arose from as early as 1953 (being the time when the Convention became binding on Ireland as a matter of international law) and that such obligations can continue to oblige the State to comply with obligations today. In addition, it is said that a fresh obligation arose on Ireland under the ECHR to carry out further investigations into aspects of the circumstances surrounding the death of Mr. Ludlow at a time subsequent to the coming into force of the 2003 Act. On that basis, it is contended that the 2003 Act applies in respect of any relevant obligation on the part of the State to investigate such circumstances, notwithstanding the fact that the initial event occurred well before the State had obligations in domestic law in that regard. In that context, there are questions surrounding both the circumstances in principle which might give right to obligations and whether, in light of the Court's decision on such principles, relevant obligations arise in the circumstances of this case.

3.4 Second, there is the question of whether a similar right to or obligation of investigation can be said to derive, under the Constitution, from the right to life guaranteed by Art. 40.3. A subsidiary, but potentially important, question arises as to whether, if such a derived right or obligation can be said to exist, it is co-extensive with the obligation derived from the ECHR, or whether there may be some differences in practice. The reason why this may be important is a particularly practical one in the circumstances of this case. Obviously one consequence of the recognition of a derived right and obligation of the type asserted might be that the temporal issue would fall away provided that there was no material relevant distinction between the rights and obligations under the Constitution, on the one hand, and under the ECHR, on the other. If a substantially identical set of rights and obligation are held to arise under the Constitution, then there may be questions as to the extent to which those rights and obligations apply to events which occurred a very long time ago but the specific cut-off date of the day when the 2003 Act came into force would not of itself be relevant.

3.5 In addition, it remains possible that the extent of any rights and obligations which might be...