Mr. Mark Kelly:

I am accompanied by my colleague, Mr. Stephen O'Hare, who is a policy officer with the Irish Council for Civil Liberties, ICCL, and will be called to the Bar later this month or next month. He may be of assistance to us during later stages of the hearing.

I congratulate the joint committee on raising this issue as a topic. It was a pleasant surprise to receive the invitation. This is a matter about which the ICCL has been preoccupied for quite some time and it is refreshing to see Oireachtas committees taking the initiative to engage directly with civil society and other experts.

We are preoccupied by the question of Ireland's compliance with Article 2 because, on a reading of the Strasbourg jurisprudence and a comparison between it and the practical and legal situations in this country, there are serious deficits. In my opening remarks, I hope to unpack briefly some of the considerations that are set out in our statement and, more specifically, to talk members through the essential components of what Dr. Farrell referred to as the procedural obligation on the State under Article 2.

I will give a bit of background. This European Court of Human Rights case developed a number of years ago. As it had its origins in cases arising in the neighbouring jurisdiction on this island, it is good that the committee has expertise from Northern Ireland to draw upon this morning. Essentially, the Strasbourg court became frustrated with sets of circumstances in which there were serious allegations of people dying as a result of the use of lethal force by agents of the state but in which there had been no effective official investigations, which meant that it was difficult to attribute responsibility for the deaths.

The Strasbourg court did something that was quite novel. Rather than it being placed in the position of having to redo the work of the state in establishing the truth every time there was a serious allegation of torture, ill treatment, a killing or a death as a result of medical negligence, it decided to take a different approach and establish whether state authorities had taken the necessary steps to carry out a proper investigation. The Strasbourg court has gone into the forensic detail of what the component elements of an effective investigation are. As a result, we and legislators are able to benchmark our laws and practice against the requirements of the Strasbourg court.

There are four principal requirements, which I will go through briefly: independence; effectiveness; promptness; and transparency. The Strasbourg court has given a specific meaning to each. First, it is clear in case law that, for an investigation to be Article 2 compliant, the people carrying it out must be independent of those who may be implicated in the death. For example, it is not acceptable for police officers to investigate a death allegedly caused by police officers. A further example that we might revert to later is that it is not acceptable for the HSE to investigate a death in which medical professionals employed by it might be implicated, as that would not constitute independence.

Second, Dr. Farrell touched on an aspect of effectiveness. According to the Strasbourg court, the investigation must be capable of leading to a determination of whether the force, including fatal force, used was justified under the circumstances. Regarding an aspect that Dr. Farrell did not mention, the court referred to the identification and, if appropriate, punishment of those concerned. Members might be able to see some of the nature of our concerns about the effectiveness requirement. While it is true that an inquest in combination with certain other actions, for example, civil actions, may explore much of the territory of an unexplained or unlawful death, it is most unlikely that those proceedings, separately or cumulatively, will lead to a situation in which there can be identification and, if necessary, punishment of those concerned. I should say that this is a discussion that my colleague, Mr. Finucane, may go into in more detail. The Strasbourg court stated that this was an obligation, not of result, but of means. In other words, there is no expectation that, simply because someone is alleged to have been ill treated or killed by a police officer or to have died as a result of medical negligence, there must be someone punished for it at the end of the investigation. Rather, in the obligation of means on the state, there must be an investigation that is capable of leading to a determination one way or the other.

Effectiveness also requires that all reasonable steps be taken to secure evidence concerning a death that is suspicious in any way. Eye witness testimony must be taken, forensic evidence must be gathered and, where appropriate, there must be an autopsy with a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. All of these fall under the second criterion of effectiveness.

Third, the investigation must be conducted in a prompt and reasonably expeditious manner. There are a number of reasons for this criterion, not least being the fact that the value of forensic findings can decline over time if the investigation is not done quickly. However, there is a further, more fundamental and human dimension to this, as outlined in the well-known European Court of Human Rights case, Finucane v. the United Kingdom, in which the Strasbourg court said in clear terms that it cannot be assumed in the event of delay that a future investigation can usefully be carried out or provide any redress, either to the victim's family or by way of providing transparency and accountability to the wider public, because the lapse of time, the effect on evidence and the availability of witnesses may inevitably render such an investigation an unsatisfactory or inconclusive exercise that fails to establish important facts or to put to rest doubts and suspicions. An investigation must be done promptly. Otherwise, and for all sorts of human and medical reasons, it may not work if justice is denied or delayed.

The fourth requirement for an Article 2-compliant investigation is what the Strasbourg court has called transparency, by which it means that there must be a sufficient element of public scrutiny of the investigation and its quality in order to safeguard the legitimate interests of those concerned, specifically the legitimate interests of the next of kin in cases of death. It is not acceptable to the Strasbourg court for investigations to take years during which the family and next of kin are effectively kept in the dark about what is happening. The failure to keep the next of kin properly briefed on what is happening can, in itself, amount to a potential violation of Article 2 of the European Convention on Human Rights.

My time is nearly up, but we will have more time together to unpick these questions. When one overlays the four requirements of independence, effectiveness, promptness and transparency, there are two principal concerns that surface immediately for the Irish Council for Civil Liberties. First, there is the issue of the speed of or lack thereof in investigations into deaths in custody. There have been a number of very high profile cases, including those of Brian Rossiter, Terence Wheelock and other names that will be familiar to the committee, in which it took many years to reach rather inconclusive results. This raised questions under Article 2.

On the second issue, more specifically in the context of the matter raised by Dr. Farrell, given that our coronial legislation is now 52 years old and has not been reformed in the same way as in neighbouring jurisdictions, it is the view of the Irish Council for Civil Liberties that, de facto,in the case of persons who die in circumstances that give rise to inferences of medical negligence, there is no effective remedy available in this jurisdiction which is capable of complying with Article 2. Even if we were to travel a certain distance with Dr. Farrell, along the road of considering that cumulatively an inquest and civil proceedings could amount to a vindication of rights under Article 2, there is another problem. This procedural obligation amounts to a proactive obligation on the State, which is why it is so important Oireachtas committees are examining this matter. It is the State that must take action to comply with Article 2 in terms of a set of circumstances in which responsibility is bounced back to the family who are told that an inquest may not vindicate their rights under Article 2 but that they can always initiate civil proceedings. In the view of the Irish Council for Civil Liberties, that is simply unsatisfactory and it is all the more unsatisfactory when the regular pattern is that not only must the family take the initiative to bring civil proceedings but they will be fought tooth and nail through the courts year after year by expensive senior counsel paid for by the taxpayer. That is our view and we are happy to explore it further with the committee.

I thank the committee for taking up this matter. The Irish Council for Civil Liberties is of the view that the position in this jurisdiction is that there is an undeclared violation of Article 2 of the European Convention on Human Rights because of shortcomings in the speed of investigations and coronial proceedings. It would be very positive if committee members, as legislators, were to proactively look at the matter and bring back onto the agenda the Coroners Bill 2007 which has languished on the Order Paper for such a long time, as well as looking at other measures that might be taken.