Dr. Brian Farrell:

I thank the Chairman and the committee for the invitation to speak to them today. I propose to speak about the coroner system in Ireland and, in particular, medico-legal death investigation. I refer to the medico-legal investigation of sudden, unexplained, violent and unnatural deaths. This concept of medico-legal death investigation includes the concept of reportable deaths, and I have provided the committee with some materials, including a list of reportable deaths which apply in the Dublin coroner's district, encompassing the greater Dublin area. When a death is reported, there will be preliminary examination, and if there is a doctor, a medical practitioner who is in a position to write a medical certificate of death, and there are no collateral issues arising, the death may be registered on that basis. Where the death is, or may be due to, unnatural causes, or where there are concerns in relation to the circumstances of the death, then the coroner will commence an inquiry, which may require an autopsy or other forensic investigations. At the end of that procedure, where the death is due to unnatural causes or there are serious concerns or issues in relation to the circumstances of the death, the case must go to a public inquest.

At the inquest there are certain statutory findings that must be made which do not normally give much difficulty: who the deceased was, the date and place of death - the medical cause of death may sometimes raise issues but normally not - and we also look at all the facts in relation to the circumstances surrounding the death, including any acts or omissions directly or indirectly causative of death.

The hierarchy of legal norms in our work are as would apply to any other agency: Bunreacht na hÉireann, the European Convention on Human Rights Act 2003 and statute law and common law. Under the primary legislation of the 1962 Act, reportable deaths include all sudden, unexplained, violent or unnatural deaths, or where the death occurred as a result of negligence, misconduct or malpractice, or where the death occurred in a place or in circumstances that requires the holding of an inquest, meaning in custody, in prison, in Garda custody or at the hands of agents of the State, or where the deceased died directly or indirectly by unfair means, which is a very wide concept. We must have a full inquiry and during the discussion we will deal with changes in practice and procedure which have occurred in recent years, especially in what might be termed Article 2 compliant inquests, taking cognisance of the European Court of Human Rights jurisprudence. We have made practice and procedure changes, but we still must act within the remit or the scope of the primary legislation.

I will just read two sections from that, namely, section 30 of the Coroners Act 1962 which states: "Questions of civil or criminal liability shall not be considered or investigated at an inquest". Section 31(1) states: "Neither the verdict nor any rider to the verdict at an inquest shall contain a censure or an exoneration of any person." An inquest is neutral and inquisitorial. It cannot blame or exonerate but at the same time must establish all the facts surrounding the death and bring in an appropriate finding and a verdict. There is an optional or discretionary power to bring in a rider or recommendation designed to prevent further fatalities occurring in similar circumstances.

The word “circumstances” will loom large in our discussions later on. In the primary Act, the Coroners Act 1962, there are numerous mentions of the word “circumstances”. I have provided the committee with a list of some recent case law. Before I speak about the Eastern Health Board case in 2001, in the Attorney General case in 1998 the Supreme Court elucidated the public policy considerations underlying the holding of an inquest in the following terms: to determine the medical cause of death; to allay rumours or suspicions; to draw attention to the existence of circumstances which, if unremedied, might lead to further deaths; to advance medical knowledge - we will say something about that presently; and to preserve the legal interests of the deceased person’s family, heirs or other interested parties.

There was an important obiterdictumin the Eastern Health Board case, which I need to read into the record. The Chief Justice said: "The prohibition on any adjudication as to civil or criminal liability should not be construed in a manner which would unduly inhibit the inquiry." That would be because such an inhibition would not accord with the public policy considerations relevant to the holding of an inquest. The Chief Justice went on to say: "It is clear that the inquest may properly investigate and consider the surrounding circumstances of the death, whether or not the facts explored may, in another forum, ultimately be relevant to issues of civil or criminal liability." This is a very important obiterdictumarising out of that case.

In relation to Article 2 of the European Convention on Human Rights, in addition to the substantive obligation to protect life, there is an adjectival or a procedural obligation on the State to investigate deaths which may amount to a breach of the positive and negative obligations in relation to the protection of the right to life. The procedural obligation means an effective, independent investigation. In the jurisprudence of the European Court of Human Rights, as interpreted in the Middleton case in England, which is the only other common law medico-legal death investigation system in the European Union, in addition to the Irish situation, the House of Lords said, in the absence of full criminal proceedings, and unless otherwise notified, a coroner should assume that his inquest is the means by which the state will discharge its procedural, investigative obligation under Article 2. That in fact and in practice has been accepted in Ireland as well. The procedural obligation in Ireland is primarily served by the inquest, but it may also be satisfied by criminal proceedings, a full trial, a tribunal of inquiry or a commission of investigation into the death, so the inquest is not the only means by which the obligation may be satisfied.

The jurisprudence of the European Court of Human Rights would say that the indicia of such an inquiry would include promptness, thoroughness, and compellability of witnesses. The scope was also looked at in the Middleton case, which reviewed the jurisprudence of the court and said that the scope was by what means and in what circumstances.

In common law jurisdictions as opposed to European mainland civil law jurisdictions, there is a public hearing, which is the inquest, with involvement of the next of kin. Middleton and the other jurisprudence also said there ought to be a conclusion on disputed factual issues, which would form part of the findings, and to be effective it ought to lead to a determination of whether, for example, fatal force used was justified in the circumstances or that appropriate procedures were in place to prevent the death occurring and were followed in the circumstances surrounding the death.

I point the committee to the Magee case where the Supreme Court found that legal aid was not available for inquests. That case went to the European Court. There was a friendly settlement between Ireland and the court which led to the Courts and Civil Law (Miscellaneous Provisions) Act 2013, which now provides legal aid and legal advice for inquests, subject to certain conditions. We obviously have to take cognisance of the jurisprudence of the European Court of Human Rights, as interpreted by the other common law jurisdiction, but we must look at our practice and procedure within the remit of our domestic law. We have made a considerable number of changes in procedures which I will perhaps go into presently in relation to the procedure adopted at inquest.

The difficulty really arises on the net point of the findings and the verdict. I think it was Middleton in interpreting the jurisprudence of the European Court of Human Rights in relation to the inquest in England and Wales which said there ought to be, in appropriate cases and if so proven on evidence, a finding of systemic failure or systemic neglect and also perhaps in some cases, where so proven, a verdict of unlawful killing. Unlawful killing is a verdict that is available in Ireland but it is usually brought in in circumstances of deliberate homicide and the verdict is often qualified by “person and persons unknown”. It appears that would pose a difficulty under the law in Ireland which prohibits any verdict that would blame or exonerate any individual human person or a legal entity.

I would like to revert in a moment to changes in practices and procedures that have come in in Ireland in recent years. Suffice it to say that we are anxious to and do establish all relevant facts in relation to the circumstances of such deaths and expose that evidence to public scrutiny. We look forward to the reintroduction of the Coroners Bill 2007 and the development of coroners rules of practice as recommended by the coroners review committee in 2000.

We also look forward to developments in the structure of the Coroner Service and to the High Court and Supreme Court's exegesis on the constitutional right to life under Article 40.3.2o of Bunreacht na hÉireann and Article 2 of the European Convention on Human Rights.