Oireachtas Joint and Select Committees

Wednesday, 10 June 2015

Joint Oireachtas Committee on Public Service Oversight and Petitions

Ireland's Compliance with Article 2 of the European Convention on Human Rights: Discussion

9:30 am

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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Apologies have been received from Deputy Michael Kitt, Deputy Helen McEntee, Deputy Anne Ferris, Senator Jimmy Harte and Senator Ivana Bacik. I ask those present, including members, media and people in the Gallery, to switch off all mobile devices or put them into safe mode to avoid interference with the broadcast.

This is a meeting of the Joint Committee on Public Service Oversight and Petitions and the Joint Committee on Justice, Defence and Equality, the purpose of which is to engage with witnesses on the issue of Ireland's compliance with Article 2 of the European Convention on Human Rights. I now hand over to my colleague, Chairman of the Joint Committee on Justice, Defence and Equality, Deputy David Stanton.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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Thank you Co-Chairman. The Committee on Justice, Defence and Equality is very happy to join our colleagues on the Committee on Public Service Oversight and Petitions for this important meeting. I believe this is the first time that committees have come together in this format in this Dáil so it is a first to have a joint meeting of two committees. Perhaps we should do it more often where issues overlap. I understand that members of the Committee on Justice, Defence and Equality look forward to hearing and engaging with a variety of experts on this topic in a constructive and open-minded manner. I welcome the witnesses here this morning and thank them for their time in helping us in our considerations.

This is an opportunity to consider the extent to which Ireland is complying with Article 2 of the European Convention on Human Rights. We do not have a parliamentary committee on human rights as exists in other countries and this might be considered in the next Dáil. The Co-Chairman here is also a member of the Committee on Justice, Defence and Equality and we have established a sub-committee on human rights but have had to confine our work to justice and equality matters. We have a great interest in these issues because of that. I must, at some stage, go to the Dáil for parliamentary questions, so please excuse me when I leave. It is not for any other reason. Some work there is clashing with work here. I will hand back to the Chairman for the day and I look forward to getting involved in this.

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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A particular focus is the requirement for a proper and adequate official investigation into deaths resulting from the actions of State agents, both from the use of lethal force and also in situations arising from the negligence of agents which leads to a death - when Articles 1 and 2 of the European Convention on Human Rights are read together. We welcome a distinguished panel of experts to discuss the issues associated with Article 2 of the European Convention on Human Rights, Ireland's compliance and any factors which impinge upon its operation and implementation. Members are keen to hear their views in this regard. The meeting format is to invite each witness to make an opening statement of five minutes, followed by a question and answer session with members.

I welcome Dr. Brian Farrell, Dublin district coroner. As Dr. Farrell must leave for another appointment at 11.30 a.m., he will present first. Next will be Mr. Mark Kelly, executive director of the Irish Council for Civil Liberties, then Dr. Natasa Mavronicola, lecturer in law at Queen's University, Belfast, and then Mr. Michael Finucane, solicitor, to conclude the presentation. I welcome all the witnesses today and thank them for forwarding their presentations.

Before commencing I must inform the witnesses that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the joint committee. If they are directed by the committee to cease giving evidence on a particular matter and continue to do so, they will be entitled thereafter only to qualified privilege in respect of their evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or an entity by name or in such a way as to make him, her or it identifiable. I invite Dr. Farrell to make his presentation.

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.

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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I thank Dr. Farrell and invite Mr. Kelly to make his presentation.

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.

Dr. Natasa Mavronicola:

I thank the joint committee for inviting me to present on Article 2 of the European Convention of Human Rights, with a particular focus on Northern Ireland and issues of concern that have arisen, particularly from the angle of Troubles-related deaths. As some elements of my opening statement might involve repetition, I apologise in advance. I am grateful to the previous two experts for giving an eminent account of aspects of obligations that arise under Article 2.

I will go back to and recount the obligations that arise under the heading of right to life under the European Convention on Human Rights. A number of state obligations flow from that article, or in combination with Article 1, of the convention which provides that, "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in this Convention". The negative obligations arising consist of duties to refrain from certain actions. There is a duty not to intentionally take life and a duty not to use potentially lethal force. There are narrowly carved exceptions to these obligations which include taking action in defence of any person against unlawful violence in order to effect a local arrest but the force used must be no more than what is absolutely necessary.

Positive obligations constitute duties to take positive action to respect, protect and fulfil the right to life under the convention. There are general, operational, investigative and redress focused obligations which are intermeshed under Article 2. General obligations consist of framework duties to protect the right to life by law and through establishing appropriate institutions and mechanisms for the protection and prevention of the unlawful taking of life. Operational obligations involve duties to take positive steps to protect particular individuals from real and immediate risks to life, as well as duties to plan operations in life endangering circumstances in a way that will minimise the risk to life. Investigative obligations involve duties to investigate suspicious deaths. Such obligations have been explored in some depth, but I hope to unpick them even more. Redress focused obligations encompass duties to secure redress through compensation and-or, potentially, the criminal process or, at least, through the capability of initiating proceedings leading to a criminal process for breaches of the right to life. These obligations are often cited in connection with Article 13 of the European Convention on Human Rights, which deals with the right to an effective remedy.

I will further unpick the investigative obligations. The components of an Article 2 compliant investigation were unpicked predominantly in case law linked with Troubles-related deaths by the European Court of Human Rights. They include the following requirements. The authorities must act on their own initiative in initiating an investigation on their own motion; the investigation must be independent and impartial vis-à-visthe potential individuals involved in the taking of life or any negligence involved in the loss of life; the investigation must be effective; the investigation must be reasonably prompt and proceed with reasonable expedition; the investigation must be sufficiently open to public scrutiny and it must also sufficiently safeguard the interests of the next of kin.

I want to zoom in a little on some failings which have led to findings of breaches of the investigative duty under Article 2 in regard to Troubles-related deaths. In the McKerr group of cases adjudicated on by the European Court of Human Rights in 2001 a number of systemic shortcomings in Northern Ireland were identified in the fulfilment of the investigative duty under Article 2.. They included: a lack of independence of the police officers investigating loss of life from officers who were, potentially or actually, implicated in the incident; a lack of public scrutiny and sufficient disclosure and information to the victim's family; the fact that the inquest procedure at the time did not allow for any verdict or finding which might play an effective role in leading to a prosecution for any criminal offence; the non-disclosure of witness statements to the applicant's family; the fact that public interest immunity certificates relating primarily to public safety or national security prevented the inquest from examining relevant matters and documents in finding out the circumstances surrounding the loss of life; the non-compellability of essential witnesses, including central figures involved in the taking of life; the lack of prompt commencement and reasonable expedition; the lack of investigations, in some instances, into allegations of collusion by agents of the State in the taking of life; and the lack of legal aid, an issue which has been mentioned, for representation of the victim's family and the safeguarding of their interests in the proceedings.

Following these cases, a package of measures was instituted to remedy the deficiencies identified. They include the Historical Enquiries Team; the ability of the Police Ombudsman to carry out Article 2-based investigations into grave matters; reform of the coronial system; changes in the giving of reasons not to prosecute; options to provide for judicial review of such decisions; and the establishment of the Inquiries Act 2005.

Shortcomings and concerns subsist in Northern Ireland about these measures which are in a state of flux. However, I want to highlight a few aspects which might be informative and, I hope, meet the purposes of the committee.

Delays constitute an issue of long-standing. There is a lack of reasonable expedition in investigations into Troubles-related deaths. This stems from a number of factors in Northern Ireland, including prolonged delays in the disclosure of relevant information, institutional limitations, limited resources, etc.

Interestingly, recently the Council of Europe's Commissioner for Human Rights indicated that the UK remains in continuing breach of its obligations under Article 2 in failing to conduct reasonably expedited and prompt investigations as well as effective investigations. Nils MuiŽnieks indicated that the UK Government could not justify these failings on the basis of limited resources. Another long-standing issue is barriers to truth recovery. The non-disclosure of documents that are essential to identifying the circumstances of the loss of life has been a significant barrier to truth recovery in investigations into Troubles-related deaths. Barriers to truth recovery and to delays to the investigative process involve redactions or delays or attempts to issue public interest immunity certificates. While after the reform - witnesses are now compellable in inquests in Northern Ireland - a compellable witness may decline to answer any question tending to incriminate himself or herself or his or her spouse and this is also in conjunction with human rights against self-incrimination in various proceedings.

Another long-standing issue remains the independence and impartiality of the mechanisms instituted to investigate suspicious deaths. Concerns have been raised by different bodies and actors with regard to proceedings by the Police Ombudsman, in respect of the Historical Enquiries Team. In addition, in the coronial system, the process of appointing a jury is anonymous so the vetting of jurors for any issues of bias is impossible. There are also ongoing concerns regarding the independence and effectiveness of public inquiries.

I reiterate the point about effectiveness which has been raised by the other two speakers. In the European Court of Human Rights case law this principle of effectiveness is tied to identifying whether there has been a breach of either of the positive or the negative obligation under the right to life. In instances where lethal force was used, for example, it is to find out whether it was no more than absolutely necessary and justified in the circumstances and as the court has put it, to identify and potentially punish those responsible, an obligation not of result but of means, but one which requires the investigative process to remain capable of leading to prosecutions. This raises some tensions between truth and justice in the view of many transitional justice experts, notably, a tension between mechanisms targeted towards encouraging witnesses to come forward in order to divulge the truth about certain controversial events on the one hand versus the capability of potentially leading to a prosecution of some of these individuals.

Recently, the European Court of Human Rights has indicated that the investigative duty under Article 2 is in fact related to a framework of criminal, civil, administrative or disciplinary proceedings which are capable of leading to the identification and punishment of those responsible. It said that this principle of investigation operates to the exclusion of other types of inquiries that may be carried out for other purposes, such as establishing an historical truth. This is quite a controversial statement from the Grand Chamber of the European Court of Human Rights which seems to prioritise justice perhaps over truth with regard to the investigation of takings of life. We are not sure how this will entirely crystallise for Northern Ireland and Troubles-related deaths. However, what we know is that the passage of time and the continued delay and barriers to truth recovery continue to militate against finding out the circumstances of a number of Troubles-related deaths. Therefore, this is a non-exhaustive but still a very lengthy outline of some of the issues of concern relating to compliance with Article 2 in Northern Ireland. I remain at the disposal of the committee for any questions.

Mr. Michael Finucane:

I wish to begin by adding my thanks and congratulations to the committee in taking the time to examine this very important but sadly neglected issue. My experience is primarily in the field of representation of bereaved families at inquests. I acknowledge that some of the people I represent are here today to observe these proceedings. If the previous speakers have given the committee what might be called the bird's eye view I will try to give a little bit of the worm's eye view and explain what it is like to be involved in an investigation with reference to the developments that have taken place in Strasbourg but also in Ireland.

It hardly needs to be said that death is something that affects everyone. At some point in our lives we all experience it, sometimes very directly and sometimes in traumatic and violent circumstances. However, in all deaths every family deserves the best possible investigation, the most thorough investigation and the most effective investigation possible. They deserve it without having to ask for it.

There are some things that in Ireland the inquest system has done well for families over the years. In a small country where communities were intimately related and co-existing, features like empathy and informality served people very well, by offering them an additional support mechanism at a time of trouble in their lives. However, the problem with this type of system is that it often depended very much on the nature of the individuals involved in the investigation. If one was dealing with sympathetic investigators who thought as if they were in the family's shoes, then often the outcome would be regarded as welcome by the bereaved people. In simple terms, when the circumstances of the death or the case at hand might be described as straightforward, then the system was good and met the needs of the bereaved. However, when it was not so straightforward, when difficult questions had to be asked of people in positions of responsibility and obligation, then the Irish system rated poorly, in my view. Questions that might be asked, for example, of An Garda Síochána, where a person died in police custody, were often met with great resistance, delay and lack of information being provided to families, forcing them into the position of seeking redress in the courts.

In that regard, one case that I would point to and which is referred to in my paper - the Ramseyer case - ended up in the Supreme Court simply as a result of that family's request for information about the investigation into the death of their relative. It is worth singling out the Ramseyer case because it was not a case involving the use of lethal force by a police officer or member of the armed forces. Thankfully, those cases are relatively rare in Ireland because we do not have a uniformly armed police force. The Ramseyer case was where someone died in a domestic incident at home but the family members were very unhappy about the nature of the police investigation. It is recorded in the judgment of the Supreme Court that the family felt that foul play might be involved. However, the Garda investigation was so deficient at the time that the family felt that perhaps vital evidence had been lost. They ended up going to court because the coroner declined to provide them with copies of statements and information that he had collected from the gardaí in the course of their investigation so that they might prepare themselves for the inquest. There is no right to information contained in the Coroners Act 1962. There are no rights to many other things and, therefore, one is left in an example case such as this case, which is not straightforward and may well be controversial, with having to seek redress in the courts because the legislative framework does not provide one with what one needs. In a nutshell, that is the problem with the Irish system as it stands.

Interestingly, the Ramseyer family also considered, although did not follow through with proceedings in respect of another aspect of the Coroners Act, a little-known provision which stipulates that where a coroner is sitting with a jury, the local gardaí shall function to assemble that jury.

A Garda sergeant is tasked with the duty. It is not difficult to understand how a difficulty might arise in a case where the investigative forces in An Garda Síochána are also responsible for assembly of the jury which will adjudicate on the facts. Whatever about the anonymous assembly of juries, that one could prove problematic and may lead to litigation into the future.

If changes are to be made, a useful and effective benchmark against which Ireland might measure its new legislation and legislative framework will need to be found. This is where Article 2 comes in. The beauty, for once, of the legal judgment from a superior court is that the criteria be not only easy to understand but can be applied mechanically. It is not difficult to determine whether a particular investigation meets the requirement of public scrutiny, is effective, prompt, independent or involves the next of kin and family to the maximum extent possible. It is not difficult to determine whether the State is being sufficiently proactive in fulfilling its obligations to provide bereaved people with an effective, prompt, independent investigation that is capable of establishing all of the facts. Given that we have clear benchmarks that are capable of being applied in order to assess whether the standard is met, we should grasp the opportunity.

The case law from Strasbourg originated, more or less, as a result of the quartet of judgments in 2001 referred to by previous speakers. The court, particularly the superior court in England and Wales, has grasped the initiative and developed the jurisprudence and concepts contained within them at breakneck speed, certainly by legal standards. We have a really useful, well developed and well researched bank of case law, practical experience and procedural diagrams upon which our own legislative framework could be based.

As stated, the Coroners Act dates back to 1962. Fifty plus years is way too long to leave legislation as important as that go unamended. It needs to be brought up to modern standard. However, given the wealth of information that is available to us at this point in time and given that much of the heavy lifting has been already done by our neighbouring jurisdictions, we are probably at a point where we could not be better equipped to embark on the reform process.

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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I thank Mr. Finucane and all of our witnesses for their comprehensive and thought-provoking presentations. Before I open up the meeting to questions from members, it is important that I clarify that the issue of Article 2, taken in conjunction Article 1, does not only pertain to deaths at the hands of State agents and so on but to all deaths in suspicious circumstances. This is really important in terms of the current debate in Ireland. For example, an independent review panel of barristers is currently examining more than 300 allegations of Garda malpractice. In fairness, a section of them may not amount to anything but we are all mindful that a number of them relate to deaths, in respect of which families feel they were failed in terms of the investigative procedures. This is a big deal in terms of families and their access to justice and a judicial system that works and leads to them having the answers they require.

Photo of Michelle MulherinMichelle Mulherin (Mayo, Fine Gael)
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I welcome the witnesses and thank them for their presentations. Dr. Farrell referred in his presentation to the importance of families being able to get answers. The point was made that people dissatisfied with an outcome have to seek a judicial review as opposed to having a right of appeal. I would welcome Mr. Kelly's view on that point. I imagine that in many cases people not want to appeal but there would be cases in respect of which people would like to do so. It appears to me that people have to go to an awful lot of bother to access that which would appear to be a natural entitlement in many other types of court cases.

In regard to the shortcomings in this jurisdiction, as described, are the witnesses proposing the deletion of section 30 of the 1962 Act? Perhaps they would elaborate on what in their view we need to do to be compliant, with particular focus on a person's innocence until such time as he or she has been through full and proper criminal proceedings and the competing interests in that regard.

Mr. Mark Kelly:

The Deputy has raised three different issues, including the satisfaction or dissatisfaction experienced by families. Mr. Finucane referred earlier to the Ramseyer case, which ended up in the Supreme Court simply because the family was not satisfied with the information they were given. Our experience from contact with families, including in some of the high profile cases that rumbled on for years, was that sometimes the underlying reality was that an investigation was being conducted as expeditiously as could be reasonably expected because it was a complex investigation. The problem that arose was around communication. Often, because people were not kept informed, they became extremely distressed, and understandably so, and formed all sorts of theories about what might or might not have happened to their loved one in custody, which were in fact unfounded and, ultimately, were found to be unfounded. Irrespective of future legal reform, there is need for An Garda Síochána and its investigative agencies to think through how they can keep families better informed about the investigative process.

In regard to the actions that are available to next of kin who are actively dissatisfied and may have reason to be dissatisfied with the quality of an investigation, the current situation is flagrantly not in accordance with Article 2 of the European Convention on Human Rights. Let us take a recent case that has been very troubling for a number of people, the tragic death of Savita Halappanavar. It is very clear that her widower is extremely dissatisfied with the action that has been taken to investigate her death and to vindicate his rights. A plethora of steps have been already taken, including a HSE clinical review and a HIQA review. Civil proceedings and so on are also under way. Yet, Mr. Halappanavar is not, in his own words, finding within our current system an effective means of vindicating his rights. My contention would be that even the civil proceedings that are currently active are extremely unlikely to do that. Essentially, where ever a family member or next-of-kin turns - Mr. Finucane may have further views on this - they are likely to find that avenues of potential redress are closed off to them. The point made by Dr. Mavronicola is also extremely important.

We not only need to look at Articles 1 and 2 but also at Article 13 of the European Convention on Human Rights on the right to an effective remedy. Article 13 is usually read together with other substantive articles. When one looks at the two together in this context, it is our view that first, where next of kin are concerned, there is not currently a process that is compliant with Article 2 and, second, nor is there a means for them to have effective remedy in that context as required by Article 13. It is a serious situation.

The Deputy's last question raises an issue on which the entire session could probably be spent, namely, what should replace the current framework? Section 30 of the 1962 Act is a difficulty as it blocks the attribution of responsibility. There is the Coroners Bill 2007, which was an effort to put in place a more modern framework for coronial investigations. It has been languishing on the Order Paper for many years now. It needs to be looked at again because in the meantime, as Mr. Finucane was saying, there have been other developments in Strasbourg jurisprudence and as a result of supreme court cases in neighbouring jurisdictions. That would be a good starting point.

The Deputy is absolutely right that whatever procedural obligations there are in terms of the rights of the next of kin, there are also procedural obligations of fairness in respect of the attribution of responsibility to particular, named police officers, doctors or obstetricians. It is absolutely essential that any reform that is brought forward also strikes an appropriate balance in that area. It is a very technical matter which might be best approached in the framework of draft legislation.

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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I have a number of questions but before I ask them, might I get agreement from both committees that we send the transcript of today's hearings to the Minister and senior Department officials, asking them to take on board the calls and observations that have been collectively made here?

In recent days, I spoke to family members of a loved one who died in the last decade. I will not give any specific details. They are very aggrieved that they have had no information. Their loved one died in suspicious circumstances and they have had no feedback at all over recent years. As this case is a live investigation, the whole system seemed to shut down, even in terms of the Criminal Injuries Tribunal and the coroner. There is a whole range of issues. Listening to their case, it seems the system is just not working for them. There are other families with similar experiences.

It is only in recent times that the issue of Article 2 as read in conjunction with Article 1 has come to my attention. It was a revelation and I am really pleased that we are here today to consider it in more detail. In my view, it is a profound failure. The Coroners Act has been in place since 1962 - over 50 years - and it is now eight years since the Bill that was supposed to modernise it was initiated. I hope we can kick start the whole debate again through this hearing and begin to put in place a system that deals with the four tests Mr. Kelly talked about.

This is a long-winded way of getting to my question but I have the luxury of being able to do that as Co-Chairman. I want to get a sense from the witnesses of what they would ask the Minister for Justice and Equality to do, if they were sitting in front of her now. Could they name three key things she should initiate by way of addressing this area and bringing us into compliance with those articles?

Dr. Brian Farrell:

If I might take up a point, our office has an intense investigation with the public and it is not my view that the system has failed. Although it is clear there are deficiencies in the system which need to be addressed, we held 666 inquests last year and, by and large, we have a positive interaction with the public. Obviously, we try to continue to improve the system. In regard to the other question----

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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The case to which I referred is way outside Dr. Farrell's jurisdiction and, as he said, the vast majority of deaths are not in suspicious circumstances but would he agree that where deaths have taken place in controversial, contested or suspicious circumstances, families sometimes can be failed by the system? That is my point.

Dr. Brian Farrell:

Obviously, I accept that there are deficiencies in the system. That is different from stating that the system has failed. As I said, we have quite a positive reaction from the public overall. More needs to be done; we need the new Act and we need coroners' rules. We actually produced draft coroners' rules in 2002, which were published but have never been taken up in statutory instrument form.

Within the context of the existing law, we have made a lot of practical and procedural changes to try to meet the jurisprudence of the European Court of Human Rights. Our investigation is independent. It is not always as prompt as we would like, but there are issues that would hold back the promptness. There may be criminal inquiries, matters may go to the criminal courts, etc.

We have compellability and we involve the next of kin as best we can in our investigations and inquests. Legal aid has been provided. We have put in pre-inquest hearings so that submissions may be made by the families or by their legal representatives. Those submissions have to be considered by the coroner who must give reasons for his or her decisions. We provide witness lists and the pre-release of documents is now common or even standard at all inquests, not just at Article 2-compliant inquests. When I was appointed in the early 1990s, documents were not released at all. We now have a situation whereby in most cases, especially where they are requested, documents will be made available.

In respect of the scope of the circumstances of the death, we are looking at the jurisprudence of the Supreme Court and we have a provision for expert evidence to be made available to the inquest. We vet the jury and, in any European so-called Article 2 inquest, we would empanel the jury, or GSOC might empanel where the Garda Síochána might assist us in serving the summonses. We grant adjournments and we have provision in practice for narrative verdicts addressing issues and concerns. We have the discretion to bring in riders and recommendations which would be addressed to the appropriate authorities. I am glad to say that we get responses increasingly expeditiously from public authorities to recommendations we have made. There has been movement on the ground. However, we need the new Act and coroners' rules as well.

I have not answered the Co-Chairman's questions, I am sorry. I am just commenting.

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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Dr. Farrell has said we need the new Act and new coroners' rules, in fairness. The case I am referring to is in the west of Ireland. The family has advised me that it has not been updated by the coroner for a number of years. Would Mr. Farrell acknowledge that?

Dr. Brian Farrell:

I would not like to comment on a particular case. One of the difficulties in Ireland is that there is considerable variation in coroner practice throughout the country. One of the reasons I would like to see a set of coroner's rules is that it would bring more uniformity to procedure and practice.

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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That is fair point. Thank you, Dr. Farrell.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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I presume when you referred to the transcripts being made available, Co-Chairman, that included submissions. Is it agreed that they be made available as well? Agreed.

I have a question on the issue of prisoners in custody and the safeguarding of same. We have had a number of fatalities and incidents in prisons in which people have lost their lives for various reasons, either through violence or suicide. Can you comment on that, Dr. Farrell, vis-à-visArticle 2 and the role and obligations of the State?

Dr. Brian Farrell:

We have had an intense interaction with the Irish Prison Service. We have carried out many inquests in respect of deaths in custody. We have made many recommendations about things like suspension points in prisons, ligature policies, unstructured release of persons on temporary release and the question of investigation of the scene in prisons. My experience is that we have investigated these matters.

Our difficulty is the net point. When one sees some kind of breakdown of the regime in the prison, the law will not permit us to bring in a verdict or words to the effect of "system neglect," much less "unlawful killing" on an institutional basis. Identification of particular members would offend against fair procedure and natural justice. An inquest is not a trial. The European Court of Human Rights has said one of the principal functions is to place all relevant facts on the public record and to bring those facts into public scrutiny. We are endeavouring to do that, but we need to compare our practice and measure it against the jurisprudence of the European Court of Human Rights.

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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I will bring in Mr. Kelly presently, but I want to get a response to my previous question first. Let us suppose the members of the deputation were in front of the Minister for Justice and Equality. What three issues would you ask her expedite to bring us into compliance, as you see it? We will start with Mr. Kelly and then work our way around.

Mr. Mark Kelly:

Of the top three, the first would be to bring forward the legislation. It is clear that it is required. I am keen to make clear our view that Dr. Farrell at the least is doing everything he can possibly do within the framework of the current legislation. The current legislation constrains him and there is no imputation of any sort in anything else that we might have said. The first point is to bring forward the legislation.

The second matter is the question of the provision of information to families and next of kin, specifically during investigations by An Garda Síochána. That needs to be looked at and systemised. To come back to my response to Deputy Mulherin, in itself that measure could avoid a great deal of stress and anxiety.

The third thing is that some positive action has been taken by the Director of Public Prosecutions to look at the giving of reasons in cases in which there is a decision not to bring forward a prosecution in respect of a suspicious death. That is a positive practice. The potential to expand the giving of reasons and expand, perhaps, the quality of the reasons given is something that might be looked at. That experiment has been running now for some time. Again, one might look to the United Kingdom experience where that is concerned.

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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Dr. Mavronicola, you wanted to deal with a previous question. Perhaps you could respond to both questions.

Dr. Natasa Mavronicola:

Certainly. Some of the points made by the previous speakers tie together some of the things I wanted to bring out. Reference was made to the deaths of people in custody. One important thing to remember is that positive obligations of the State are amplified in a prison context. This arises because of the situation of vulnerability and helplessness of the prisoner on the one hand and the position of control that the State exerts upon the prisoner on the other. The duties to investigate are particularly important within the prison context to learn about potential breaches of positive obligations as well as potential breaches of negative obligations in instances in which State agents might have used lethal force in an unlawful manner against a particular person in custody. Moreover, they are vital if we are to learn lessons about how to minimise situations in which deaths in custody will occur in future. The European Court of Human Rights and domestic courts in the United Kingdom place a strong or strict onus on the state to investigate thoroughly any of the circumstances surrounding a death in custody, including death by suicide, etc.

This leads me to the three points I would like to flag to the Minister for Justice and Equality. The central point that needs to be put forward is the need for a cumulative set of mechanisms to address Article 2 compliance. This is relevant from the perspective of the investigative duty, predominately, but also in respect of other positive obligations, such as the framework duty to protect life, as well as the negative obligation whereby the relevant people need to establish circumstances in which the State might have actually exerted lethal force against individuals. The cumulative set of mechanisms is necessary in part because of some of the tensions raised by Deputy Mulherin in respect of criminal justice safeguards in certain contexts. Particular mechanisms will fulfil different functions and benefit different individuals or processes, either with a single benefit or a combination of benefits. Mechanisms can vary from being victim-oriented to next-of-kin-oriented, establishing the facts for the purpose of the family's understanding and satisfaction that a transparent investigation into the death of a loved one has occurred. However, certain mechanisms need to be criminal-justice-oriented or redress-oriented in a different fashion to realise several remedies in an alternative context - for example, where something short of criminal liability is established or where something like negligence is established. These two angles may not necessarily be fulfilled by one single mechanism like the coroner's inquest. Therefore, the criminal-justice-oriented mechanisms will potentially end up being fulfilled through an independent criminal investigation, which may lead to a decision to prosecute by the Director of Public Prosecutions. That criminal investigation could then take place with the requisite safeguards, such as the privilege against self-incrimination, etc. This is something worth keeping in mind in putting forward reform.

Another aspect or angle of certain investigative mechanisms is the reform-oriented aspect. This relates to the idea of learning lessons from potentially systemic failings and then reforming the system to avoid such failings in future. Mechanisms such as independent and effective inquiries could potentially lead to something like that, with a broader reform-oriented benefit. Of course, such inquiries would have to be thorough, effective and independent to attain these goals.

My second point to the Minister stems from the first point about a cumulative set of mechanisms. These mechanisms should be capable of potentially communicating with each other. The institutional mechanisms should be capable of communicating with each other, but with the requisite safeguards for independence and to ensure a defendant's rights are respected. This is happening, to some degree, in Northern Ireland, given that coroners are able to contact the Public Prosecution Service for Northern Ireland if they believe that there might be a cause to investigate the possibility of a prosecution. In addition, these mechanisms should communicate in so far as is possible with the next of kin of the potential victim of the taking of life.

My final point arises because the issue of resources has surfaced frequently in Northern Ireland in respect of reform of the system and the fulfilment of investigative duty.

What has emerged from some of the statements here is that it will ultimately be cost-effective to reform the system to ensure it functions in an effective and efficient manner. It will arguably reduce litigation and, if effective, will reduce incidents in which breaches of the right to life occur through learning lessons to deter unlawful taking of life. In that way I believe the long-term cost-effectiveness of reform is definitely visible.

Mr. Michael Finucane:

If I was asked to suggest three things to the Minister for Justice and Equality that she might consider for change, the first thing I would suggest that she begin the process of repeal and reform of the 1962 Act as a matter of urgency. She should begin a process of consultation with all relevant agencies affected by that process and be prepared for a great deal of resistance.

Surprisingly, and maybe even counterintuitively - not from the institutions one might think - in my experience of dealing with inquests and post-death investigations, some agencies and institutions have moved a huge way towards accommodating the process of post-death investigation where a connection with that agency has been identified. For example, An Garda Síochána has moved a huge distance in providing information and being more open in its engagement with post-death investigations. It also has assistance from GSOC, which provides cover in terms of independence, expertise in logistics and so forth. There is perhaps less movement with regard to the prison system because it does not have an ombudsman. There is a prison ombudsman in Northern Ireland and one for England and Wales. I think there is one for Scotland also. There is none here. There is an inspectorate, but that is a review system and is not the same as an investigative ombudsman. That should probably be looked at in terms of providing not only assistance but also reassurance to both the prison system and the public that investigations are occurring on an independent footing and are capable of being prompt and effective and creating meaningful change.

Perhaps surprisingly, I would expect to see considerable resistance in the medical sector. There can be no more difficult post-death investigation than trying to find out what happened to a relative who has died in a hospital. That might seem like a shocking statement, but I remind everybody here of the recent cases of infant deaths in maternity units in which the Minister for Health subsequently went on the record to say that families were lied to by the health authorities charged with responsibility for mothers and babies in those hospitals. If people can lie to a family in a maternity situation, anything is possible. One of the great incentives for reforming the system of post-death investigation would be to remove the likelihood that anyone would get away with that sort of behaviour, thereby creating an incentive to co-operate with an investigation rather than frustrating it, because at the moment the nature of the investigation is very much in the eye of the beholder. Bereaved relatives may get lucky and find out what happened, or maybe they will not. At the moment the health establishment has many barriers behind which to hide. One that was changed recently was the in-camerarule in courts. The confidentiality of medical information was hidden behind the in-camerarule in order to prevent disclosure of important and sometimes troubling information in many cases, which is not why the in-camerarule was devised.

That is the sort of institutional resistance we will experience, and there will be others, but it has to be met and accommodated. I am not saying anyone should necessarily lose the ability to be on speaking terms with a particular institution, but these difficult conversations need to take place. Going through a post-death investigation is difficult, but if there is an objective at the end of it to try to improve things, which may involve assigning responsibility, then we would be on the road to a great improvement in the system.

The second thing I would suggest to the Minister is to review how the Coroners Act is framed and how certain statutory provisions are worded. For example, sections 25, 30 and 31 all refer to what the coroner must not do, including things that cannot be examined and findings that cannot be made. This sort of preclusive language is not helpful for post-death investigations. The new legislative regime needs to invest a great deal more discretion in coroners, who may decide to delay things, decline to release something or postpone the public examination of a particular area for good reason.

One of the problems in the current legislation, which may even come up against a successful challenge in Strasbourg, is that the language is absolute. A long criminal investigation by An Garda Síochána, for good reason or bad, precludes an inquest, and this can result in delays of literally years with no information being provided to family members and no scrutiny of the processes in public. For example, the examination of a file in the Office of the Director of Public Prosecutions - how it happens, when it happens and why it takes so long - is never subject to public scrutiny in a Coroner's Court because the Director of Public Prosecutions never appears in the Coroner's Court. A family simply sits and listens to the recitation of section 26(2), outlining that while a criminal prosecution is being contemplated the inquest cannot proceed, and that is it. A coroner has no discretion in the matter. When set against the absence of information as well, that is a problem.

My third suggestion would be the development of binding codes of practice to address the way in which coroners' inquests function throughout the country. I have appeared in Dr. Brian Farrell's court many times. It is obvious to anyone appearing in his court that the standard he applies is the high watermark of inquests within the current framework. I was involved in the Ramseyer case, and at the same time as I was going to Dr. Farrell's court asking for information and getting it, I was also litigating the point on behalf of the Ramseyerfamily because of the refusal of a coroner outside Dublin to give me any information. I had another experience in County Kerry in which the local coroner initially refused to give me information, but after some correspondence and prolonged discussion, I eventually got the information I was seeking. That sort of variation in standard practice remains a problem today. The uniformity of investigation standard needs to be addressed. It is no good having an excellent investigative service in Dublin when everyone else outside Dublin is dependent on getting whatever they can manage or whatever some local legal representative is capable of digging out of the local coroner with extreme and unnecessary effort. It needs to be standardised.

Ultimately, the incentive for the Legislature and the Government is that if this is not addressed, somebody will end up in Europe getting a ruling and then the Oireachtas will need to legislate under pressure. There are far too many cases of deaths and far too many deficiencies in the system for it to be left unaddressed any longer.

Savita Halappanavar may have focused attention on the nature of post-death investigation, and that may not even meet the Article 2 standard. However, that case got what it got in terms of independent investigation and experts brought in from outside Ireland, because it was a matter of world news interest and the health authorities felt a level of pressure they had not felt previously.

There are many more cases out there. Many more people are affected. They will not even get what the Halappanavar family got. If that is deficient, then how many more potential Article 2 problems are out there? I would say there are a lot of such cases. There is no ruling against Ireland at the moment. This is another reason that now is the time to steal a march on a problem that may well be coming down the line.

Dr. Brian Farrell:

I would like to make a final point. I want to reassure the committee that other coroners around the country have also addressed their practice in regard to inquest procedure. This is not confined to Dublin. I accept that there is variation in practice.

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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It is particularly important for us to have received the presentation made by Dr. Farrell as a practitioner and to have seen the challenge from various perspectives. The panel in attendance today has given us the full balance of perspectives. This will be very important for us at the next stage of our work, which will involve trying to bring in the change. I really appreciate the attendance here today of Dr. Farrell, in particular. I invite the Chairman of the Joint Committee on Justice, Defence and Equality, Deputy Stanton, to make some concluding remarks.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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I thank you all for coming here today. I apologise for having to leave in the middle of the meeting, but I was needed in the Dáil. This is an extremely serious and important matter. We will be sending these transcripts and the associated material to the Minister and to the Department to urge them to advance this issue. We are nearing the end of this Dáil, unfortunately. We do not know how long is left in it. This is certainly something that has to be taken up and moved on. There is no doubt about that. I thank the Chairman of the Joint Committee on Public Service Oversight and Petitions, Deputy Mac Lochlainn, for proposing that we have a joint meeting of his committee and the Joint Committee on Justice, Defence and Equality. This is the first time the two committees have come together in this Dáil. It is something we need to do a bit more of. I think this has been the Dáil of committees because there has been so much work going on in committees and so many people have come to the justice committee and the other committees. It is a way of working, getting things done and engaging with experts like the witnesses who are in attendance today. We really appreciate that they have given up their valuable time, which is important to them, to come here today and help us with this issue. I hope we will see results at the end of this process.

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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I understand that Deputy McFadden wishes to make a final point.

Photo of Gabrielle McFaddenGabrielle McFadden (Longford-Westmeath, Fine Gael)
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I thank Dr. Farrell for coming in. I was struck by his reference to the fact that legal aid has been available in certain circumstances or conditions since the 2013 Act was introduced. What are those conditions? What are we talking about there?

Dr. Brian Farrell:

I think there is still a means test. First of all, under the 2013 Act the coroner has to certify whether a particular inquest will attract legal aid. The relevant conditions are set out in subsections (a) to (h). Subsections (a) to (g) really speak for themselves - they relate to deaths in prison or Garda custody, etc. There is no difficulty with that. Subsection (h) is quite wide and allows for free legal aid to be granted where the coroner forms a view that the death occurred in circumstances that are potentially "prejudicial to the health or safety of the public or any section of the public". We have to certify the inquest to the Legal Aid Board, which then has to adjudicate on the case on the basis of a means test.

Photo of Gabrielle McFaddenGabrielle McFadden (Longford-Westmeath, Fine Gael)
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What percentage of cases would get legal aid? I would be concerned about that. In other situations in which legal aid is used, people get legal aid over and over again. They appear six months later and get legal aid again. I am concerned about what happens in this regard in the case of a death in custody. What kind of means are we talking about? Are the same criteria that are used in other criminal-----

Dr. Brian Farrell:

No. I would have to defer. I am not sure what goes on with the Legal Aid Board. We certify the inquest as being suitable for legal aid. It is then a matter for the Legal Aid Board. This has been running since 2013. We have not yet really seen how it is operating in full.

Photo of Gabrielle McFaddenGabrielle McFadden (Longford-Westmeath, Fine Gael)
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Okay. As a rural Deputy from outside the Pale, I am concerned about what Mr. Finucane said about the lack of standardisation in this area. Is he saying to me that what people get in Dublin is generally better than what people get elsewhere in the country? Is that his experience? Was he just using the case in County Kerry as an example? As a representative of Longford-Westmeath, I would be concerned that people outside the Pale are not getting what people inside the Pale are getting, as a rule.

Mr. Michael Finucane:

The standard varies. Until the Supreme Court issued the Ramseyer decision in 2006, no one could go into a coroners' court nationwide and assert a right to information in advance of an inquest. Therefore, it depended on whose court one was in. In the case in question, I was dealing with the acting coroner for County Offaly, who refused to give me any information. That would not have happened in Dublin. I do not think it would have happened in a number of other coroners' districts around the country. I know that in other areas of the country at the moment, coroners are not opening inquests or investigating deaths pending the full outcome of criminal proceedings. That has become a matter of dispute between myself and other lawyers on the one hand, and the coroner charged with the investigation on the other hand. I do not think that practice would be adopted in Dublin. All of that has to be set against the background that Dublin has the largest concentration of people in the country. As there are 1.5 million people living in Dublin, there are more deaths and there is a need for better resourced and a more well-established system. I suppose that has to be taken into account as well. However, there is no reason certain basic minimum standards should not be adopted within that framework. I am afraid my opinion would be that such standards are not being applied uniformly on a nationwide basis.

Photo of Gabrielle McFaddenGabrielle McFadden (Longford-Westmeath, Fine Gael)
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Okay. I thank Mr. Finucane.

Photo of Michelle MulherinMichelle Mulherin (Mayo, Fine Gael)
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I have a question for Dr. Farrell. He referred to the 2002 draft coroners' rules. A couple of things arise here. We are talking about reviewing and changing things and addressing the deficiencies as described. If the 2002 rules were enacted as a shorter-term measure, would that help with the uniformity that is sought?

Dr. Brian Farrell:

Yes, it would be helpful.

Photo of Michelle MulherinMichelle Mulherin (Mayo, Fine Gael)
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Perhaps that could be done pending the legislation. It would be of assistance.

Dr. Brian Farrell:

We have draft coroners' rules, which were produced by the coroners' rules committee in 2002. One has to look at the primary legislation as well.

Dr. Brian Farrell:

If one wants to bring in rules, one needs to have standardisation in the legislation. That gives the Minister the power to bring in rules on an official basis.

Photo of Michelle MulherinMichelle Mulherin (Mayo, Fine Gael)
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Does the Minister not have that power at the moment?

Dr. Brian Farrell:

No. As I understand it, there is no provision for the Minister to bring in rules on the practice of coroners. As far as I know - I stand to be corrected on this - that power has to be provided for in the primary legislation.

Photo of Michelle MulherinMichelle Mulherin (Mayo, Fine Gael)
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What prompted the drafting of these rules? Was it coming from the coroners rather than from-----

Dr. Brian Farrell:

It followed on from the review of the coroners' service that was undertaken by the then Department of Justice, Equality and Law Reform between 1998 and 2000. The report that was published in 2000 recommended that coroners' rules be drawn up. A coroners' rules committee met between 2000 and 2002 and produced draft coroners' rules. No further progress has been made since that time.

Photo of Michelle MulherinMichelle Mulherin (Mayo, Fine Gael)
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I thank Dr. Farrell.

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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I thank all of our witnesses and guests for being here today for this immensely helpful session. The submissions will be published. The transcript of this meeting, along with the submissions, will be sent on to the Minister and to the senior Department officials who are engaging with this matter. The Joint Committee on Public Service Oversight and Petitions will meet again in private session at this afternoon at 4 p.m. in committee room 3.

The joint committees adjourned at 11.20 a.m. sine die.