Thomas Fox v The Minister for Justice and Equality, Ireland and The Attorney General
|22 May 2020
| IECA 141
|[2018 No. 37]
|Court of Appeal (Ireland)
 IECA 141
[2018 No. 37]
THE COURT OF APPEAL
Order of mandamus – Commissions of Investigation – Murder – Applicant seeking an order of mandamus compelling the respondents to establish Commissions of Investigation – Whether the proceedings were misconceived
Facts: The applicant, Mr Fox, appealed to the Court of Appeal from a decision of the High Court (Faherty J) of 14th December 2017, refusing an order of mandamus compelling the respondents, the Minister for Justice and Law Reform, the Attorney General and Ireland, to establish two Commissions of Investigation into the murder of Mr Ludlow on 2nd May 1976. In the High Court, the challenge was distilled down to four broad headings: legitimate expectation, common law fairness, the irrationality of the decision, and issues arising by reference to Article 2 of the European Convention of Human Rights.
Held by Birmingham P that these proceedings were essentially misconceived and amounted to an invitation to the courts to trespass. Birmingham P found that what was called for was the exercise of what was quintessentially a political judgment; it was a judgment to be exercised, in accordance with statute, by designated members of the Executive and by the Oireachtas.
Birmingham P dismissed the appeal and affirmed the decision of the High Court.
This is an appeal from a decision of the High Court (Faherty J.) of 14 th December 2017, refusing an order of mandamus compelling the respondents to establish two Commissions of Investigation into the murder of Seamus Ludlow on 2 nd May 1976.
The background facts are set out in very considerable detail in the course of an extremely comprehensive and careful judgment delivered by Faherty J., her recital of the facts runs to some 34 pages. In the circumstances, I do not propose to set out the facts in detail once more, and to the extent that an appreciation of the facts is required, this judgment should be read in conjunction with the judgment of the High Court.
For our purposes it is sufficient to note that nobody has ever been charged in relation to the killing of Seamus Ludlow. The applicant, a nephew of the murdered man, and other members of Mr. Ludlow's family, have campaigned for many years, seeking an inquiry arising out of concerns that the Garda investigation, certainly the initial Garda investigation, into the murder was flawed.
While it seems to be the case that in the immediate aftermath of the murder, that an investigation team was established, headed by a superintendent from Dublin Castle, and comprising some 30 detectives from Dublin and Dundalk, it is contended on behalf of the family of the late Mr. Ludlow, and does not seem to be seriously disputed, that the investigation was stood down or suspended after some three weeks. It is the family's case that an important line of enquiry was not pursued, but rather, ignored, this being the possibility that Mr. Ludlow was murdered by Loyalist paramilitaries or individuals linked to British State Security Services in a case of mistaken identity. According to this theory, those involved mistook Mr. Ludlow, an unmarried forestry worker with no connections to paramilitary activity or subversion, for a senior figure in the Provisional IRA.
The Oireachtas Sub-Committee made a number of recommendations which were, in turn, adopted by the Oireachtas Joint Committee. The Sub-Committee was of the view that:
“[a] further inquiry is essential in order to ensure justice is both done and seen to be done. It is also necessary to address the potential damage to the rule of law that would occur if the investigation into the murder of any citizen of the State is not treated in a thorough and professional manner, as is the right of every citizen.”
In these circumstances, the Sub-Committee recommended that a Commission of Investigation be established to investigate the following:
(i) Whether the evidence collected at the scene of the murder of Seamus Ludlow in 1976 was available in 1979, and if not, why not?
(ii) Why were credible leads given to the Gardaí by the Northern Ireland police force not followed up?
(iii) Why were the four named suspects not interviewed?
(iv) Was there a policy in existence not to interview suspects in Northern Ireland for crimes committed in this jurisdiction?
(v) Was a decision taken not to actively pursue investigation of the murder of Seamus Ludlow, and if so who took that decision and why?
The Sub-Committee commented:
“[t]he Sub-Committee is deeply concerned that, yet again [this would seem to be a reference to issues that had arisen in the context of inquiries into the Dublin and Monaghan bombings] important and relevant documents and files are missing. As noted in the Barron Report, some Gardaí files are either missing or were never brought into existence. The relevant security intelligence files also are either missing or non-existent. Files in the Murder Investigation Unit were also found to be incomplete and there appeared to be no contemporaneous file on the murder of Seamus Ludlow in the Department of Justice.”
In those circumstances, the Sub-Committee recommended a second Committee of Investigation be established to investigate the following:
(a) What documents were created or maintained by An Garda Síochána, including security intelligence C3 Section in relation to the murder of Seamus Ludlow?
(b) Where are those documents?
(c) If those documents are not available for inspection what is the reason for this?
(d) What documents were created or maintained by the Department of Justice (and Departments of An Taoiseach, Foreign Affairs and Defence in respect of the Cabinet Sub-Committee on Security), in relation to the murder of Seamus Ludlow?
(e) Where are those documents?
(f) If those documents are not available for inspection, what is the reason for this?
Following the publication of the Oireachtas Sub-Committee Report, An Garda Síochána carried out a review of the Seamus Ludlow case and of the earlier investigations. A Superintendent from the Garda National Bureau of Criminal Investigation reviewed the entirety of the information available. This involved liaising with their counterparts in the PSNI, contacting retired Gardaí who had been involved in the case previously, and re-engagement with some of the named suspects in Northern Ireland. A file was submitted to the DPP who subsequently forwarded a “Formal Request for Mutual Legal Assistance in Criminal Matters” pursuant to the European Convention on Mutual Assistance in Criminal Matters to the authorities in Northern Ireland in respect of the interview of two suspects. This was acceded to, and members of An Garda Síochána were present at an interview of the suspects in Northern Ireland. However, ultimately, the DPP directed that it was not possible to advance a prosecution in this jurisdiction. The position, therefore, is that both Directors, the DPP for Northern Ireland and the Irish DPP. have directed that there should be no prosecutions.
Despite the recommendations of the Oireachtas Joint Committee, neither of the proposed Commissions of Investigation were established. Indeed, no Commission of Investigation was ever established. This was a source of great disappointment to the family members of Mr. Ludlow who continued to press their case with successive office holders, and indeed, successive administrations.
In June 2014, family members met with the then Minister for Justice, Frances Fitzgerald TD. In the aftermath of that meeting, the Minister sent a letter dated 25 th February 2015 which was to prove highly significant in the context of the present proceeding, so significant that it is appropriate to quote from it in extenso:
“I write further to my meeting with the relatives of Seamus Ludlow and you in June last and subsequent correspondence with me in the matter of the murder of Seamus Ludlow in 1976, at which the family members set out their concerns and their demand for the immediate establishment of a Commission of Investigation into the Garda handling of the original murder investigation. At our meeting I committed to examine the material which you provided to revert to you on the family's call for a Commission of Investigation. This process has taken some time but I hope you will understand this was inevitable in order to give the issues at hand a full and proper consideration.
The callous brutality with which Seamus was killed is a particularly sad feature of this case. I am struck by the late Judge Henry Barron's characterisation of Seamus’ murder as ‘… a random, sectarian killing of a blameless Catholic civilian by loyalist extremists’. I have no doubt whatever that the death of this innocent man at the hands of a gunman is the cause of untold grief to his family and friends and I convey my sympathy once again to Seamus’ [..] family on their loss.
Against this background, I regret that what I have to say in this letter will most likely prove a disappointment to Seamus’ […] relatives who have been so affected by his murder. However, having considered in detail the matters raised. I must conclude that nothing put forward in the document which you gave me represents new or substantial information which would in the public interest warrant an inquiry of the kind that is sought. I am keenly aware that Seamus’ […] relatives will find it difficult to accept this conclusion readily but I feel it is right to explain, as best I can why I came to this conclusion. I have had a full review carried out by my Department of the papers which you sent to me following our meeting, other material already held on file in the Department, the Barron Inquiry's...
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