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Cite as: [1998] 1 IR 203, [1997] IEHC 20

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Farrell v. A.G. [1997] IEHC 20; [1998] 1 IR 203 (30th January, 1997)

THE HIGH COURT

JUDICIAL REVIEW

1995 No. 10 J.R.

BETWEEN

DOCTOR BRIAN FARRELL, DUBLIN CITY CORONER

APPLICANT

AND

ATTORNEY GENERAL

RESPONDENT

Judgment of Mr. Justice Smyth delivered on the 30th day of January 1997

1. This case concerns the extent of the powers of the Attorney General under the provisions of Section 24(1) of the Coroners Act, 1962. The statutory provision reads as follows:-

"24-(1) Where the Attorney General has reason to believe that a person has died in circumstances which in his opinion make the holding of an inquest advisable he may direct any coroner (whether or not he is the coroner who would ordinarily hold the inquest) to hold an inquest in relation to the death of that person, and that coroner shall proceed to hold an inquest in accordance with the provisions of this Act (and as if, not being the coroner who would ordinarily hold the inquest, he were such coroner) whether or not he or any other coroner has viewed the body, made any enquiry, held any inquest in relation to or done any other act in connection with the death."

2. The Applicant sought and obtained leave to bring these proceedings by way of judicial review for both certiorari and declaration.

3. In December 1992, the Applicant conducted an inquest with a jury into the death of one Thomas Doherty under the provisions of the Act of 1962. Mr. Doherty had died suddenly when undergoing a routine operation at St. Vincent's Hospital, Dublin. The widow of the deceased was represented by her solicitor at the inquest hearing. At the direction of the Applicant, an autopsy had been carried out on 2nd July, 1992 by Doctor Al-Sadar. He noted his "conclusions and cause of death":-

"As there was no (1) demonstrable gross or microscopic cause of death at autopsy, and (2) given the documented history of allergy to Penicillin, (3) I formed the opinion that death was probably due to circulatory failure from anaphylaxis to Augmentin."

4. I am satisfied that paragraph 4 of the Applicant's Affidavit grounding the proceedings correctly sets the framework in which events had taken place and it reads as follows:-

"4. The central issue before the inquest was whether the deceased had died as a result of the administration of a test does of Augmentin (penicillin) or whether the death was attributable to some other cause. Five senior medical witnesses from the hospital gave evidence the cumulative effect of which was as follows:-

(a) The medical evidence did not conclusively prove that an anaphylactic reaction to Augmentin had occurred. It was stated that only a test dose of that drug had been given and that the patient had shown no signs of an allergic reaction such as bronchospasm or skin rash.

(b) While an allergic reaction was possible, the medical evidence was to the effect that this did not cause the death. If such a reaction had occurred, it occurred in a setting where the patient was anaesthetised and ventilated and appropriate drugs had been given to counteract the cardiac arrest. This strongly suggested that some other factor caused or strongly contributed to the death. This other factor emerged during the evidence from a pathologist who found moderately severe degree of coronary arterial disease with a significantly enlarged heart with evidence of aortic valvular disease."

5. The widow also gave evidence which specifically confirmed to the coroner and the jury that her late husband had been allergic to Penicillin. At the commencement of the inquest, the widow's solicitor was made aware of case notes and records and he extracted some information and obtained copies of documentation requested by him at the hearing. Various medical witnesses (including the pathologist) gave evidence at the hearing. As there was some disagreement between various medical witnesses as to the possible or probable cause of death being related to the administration of a trial dose of antibiotic during the operation, the Applicant very properly gave Mrs. Doherty an opportunity to give evidence to the jury regarding her husband's history relating to his allergy to Penicillin. Her solicitor cross-examined each of the witnesses who gave evidence in the course of the inquest.

6. In the course of the summing up to the jury, the Applicant drew attention to the medical evidence, the disagreement by the medical witnesses and, in particular, Mrs. Doherty's evidence of her husband's allergy to Penicillin. The verdict of the jury given on the 4th December, 1992 reads as follows:-

"Thomas Doherty died on 1st July, 1992 in St. Vincent's Hospital, Elm Park,

Dublin 4 from acute cardiac failure and pulmonary oedema and that this was due to an episode of hypertension possibly due to an anaphylactic reaction to Augmentin combined with severe coronary arterial disease and hypersensitive cardiac disease. Death in accordance with the medical evidence insofar as that evidence assists in determining the cause of death."

7. The Applicant was of opinion that the verdict reflected the evidence given at the inquest and so recorded it in correspondence approximately one and a half years later. At that time, the Respondent was writing to the Applicant concerning the conduct of the inquest.

8. The Respondent, in the correspondence exchanged in the second half of the year 1994, expressed the view that dissatisfaction concerning the inquest had arisen:-

"From the fact that evidence relating to hospital records of the deceased allergy to Penicillin (which would appear not to have been taken into account before the deceased was administered a test does (Penicillin) during pre-operation procedures during which he suddenly died) was not disclosed to the jury. Such evidence is disclosed in the autopsy report of which you had possession some months prior to the inquest."

9. It is clear from the correspondence that as of the 20th July, 1994 that the Respondent as then advised did not consider that a further inquest was necessary. Correspondence of later in July 1994 from Mrs. Doherty expressed the view:- " that the only way I will have my complaint addressed is in the public arena (the media) ". The Respondent, by manuscript note of 28th July, 1994, noted " I do not feel we can assist Mrs. Doherty any further ". By 26th September, 1994, it is clear that Mrs. Doherty was interesting herself with inquests elsewhere in the country and contemplating joining with other families in making a demand on the Minister for Justice. Mrs. Doherty had canvassed the support of some politicians who were also writing to the Respondent on the matter. Notwithstanding that there was no change of circumstances between 20th/28th July, 1994 and 4th November, 1994 and 2nd December, 1994, nevertheless, the Respondent decided that a "new" or "fresh" or "further" inquest should be held and he directed pursuant to Section 24(1) of the Act of 1962 Doctor Cusack, Deputy Coroner, to hold that new, fresh or further inquest. The matter came before Murphy J. in the High Court on the 11th July, 1995 and proceeded from there to the Supreme Court whose Order dated 30th July, 1996 remitted the matter to the High Court for a new hearing and by consent of the parties permitted or directed that the Applicant's ground of his application be amended by adding thereto the following ground, viz.:-

"That Section 24(1) of the Coroners Act, 1962 does not confer upon the Attorney General authority to direct any coroner to hold an inquest in relation to the death of any person into whose death an inquest has already been held."

10. The Act of 1962 was an Act to amend and consolidate the law relating to coroners and to coroners' inquests. It contains an express prohibition of consideration of civil and criminal liability. Section 30 provides as follows:-

"Questions of civil or criminal liability shall not be considered or investigated at an inquest and accordingly every inquest shall be confined to ascertaining the identity of the person in relation to whose death the inquest is being held and how, when and where the death occurred."

11. The confining nature of that section has been the subject of consideration by the Supreme Court in Greene -v- McLoughlin (unreported 25th January, 1995). The original complaint by Mrs. Doherty to the Attorney General concerned the verdict of the jury. She wished the word "possibly" to be deleted from the verdict rendered and signed. Altogether, from questions of jurisdiction to alter the form of expressions by the jury of its verdict, it could have the effect of altering the verdict in such a way as to denote if not expressly at least inferentially an element of civil liability. The verdict of the jury stands, it has not been quashed nor have proceedings been taken so to do. It is clear from the correspondence that Mrs. Doherty considered that because certain elements of evidence which she considered relevant, but which I am not satisfied were so, the verdict would not have included the word "possibly". She further alleged in correspondence that the jury did not hear the full evidence which the coroner had in his possession. In my judgement, this allegation is not only not sustained but, on the evidence, is not sustainable. It must be remembered she was represented by a solicitor who cross-examined all witnesses.

12. He did not swear any Affidavit in these proceedings.

13. I have had the benefit of reading the ex tempore judgment of Murphy J. (unreported 11th July, 1995) hereinbefore referred to. With unfeigned respect to Murphy J., I am in general agreement with his interpretation of the limitation of the right of the Attorney General to direct the holding of an inquest under Section 24(1) of the Act of 1962.

14. There is a statutory duty on a coroner to hold an inquest in the circumstances referred to in Section 17. Section 24, which is an empowering or enabling section, confers on the Attorney General a limited discretionary power in limited circumstances to direct the holding of an inquest - not a "further" or a "fresh" or a "new" inquest. The difficulty in the construction of the section, or more correctly the subsection, arises from the words "held any inquest in relation to or done any other act in connection with the death". In my judgement, the subsection does not empower the Attorney General to direct the holding of an inquest while there is extant a verdict from concluded lawfully held inquest. Unless and until such is quashed, the Attorney General has no right or power to direct the holding of a new, fresh or further inquest. Thus, consequent upon the decision of Barron J. in Davitt -v- The Minister for Justice (unreported 8th February, 1989), the circumstances would have existed if the Attorney General was of opinion that the holding of an inquest was advisable to direct an inquest to be held. Likewise, after the decision in Greene's case hereinbefore referred to by the Supreme Court, the circumstances envisaged by the subsection would have arisen.

15. I unhesitatingly agree with the views of Murphy J. that the statute cannot have intended a situation of having two or more inquests with verdicts which could be either duplicious or varying concerning "the identity of the person in relation to his death the inquest is held and how, when and where the death occurred". Section 24 does not confer upon the Attorney General authority to direct any coroner to hold an inquest in relation to the death of any person into whose death an inquest has already been held so long as the inquest and the verdict therefrom remain unimpeached by appropriate legal process. Accordingly, I hold that the grounds upon which the Applicant sought relief in the following respects are sustained by the evidence:-

(a) In December 1992, the Applicant conducted an inquest into the death of one Thomas Doherty. The said inquest was conducted in accordance with law and, in particular, the provisions of the Coroners Act, 1962.

(b) The exercise of the statutory power under Section 24(1) by the Respondent was unreasonable in law and ultra vires in that there were no circumstances in which the Respondent herein could properly have concluded that the holding of a fresh inquest was necessary. The inquest held by the Applicant was conducted in accordance with law and the requirements of the 1962 Act and the Respondent has not advanced any reasons as would objectively justify the necessity to hold a fresh, further or new inquest altogether from any questions of the entitlement and the limitations thereon so to do.

(c) The Respondent appeared to take into account irrelevant considerations in that the stated reason for directing a fresh, new or further inquest arose inter alia, from the failure on the part of the Applicant to disclose evidence to the jury concerning the nature of the deceased's allergy to Penicillin, whereas the true position was that the said fact was expressly disclosed to the jury. The Respondent expressed dissatisfaction with the original inquest was, accordingly, not factually sustainable. In my judgement, the absence of such documentation as is referred to in the correspondence does not in any way vitiate the correctness of the procedure followed by the coroner nor do I consider his explanation to be inadequate in the correspondence.

16. I think it unnecessary to decide the question of the constitutionality of the statute as envisaged in the second ground upon which leave was given and I think it unnecessary to make any declaration in that regard. The matter was not debated before the Court and accordingly I make no finding thereon.

17. The Applicant sought to rely on another ground to found relief viz. that the allegation that unfair procedures were followed in that Mrs. Doherty's correspondence conducted with the Attorney General was not made fully and adequately known to him so as to enable him to reply in detail thereto. I do not think this ground can be sustained. In my opinion, the information transmitted by the Attorney General to the Applicant was sufficient to enable him to make such responses as he considered appropriate. It would be, in my view, undesirable that the Court should lay down details of the manner in which, if and when an enquiry is made of the Attorney General, he ought to deal with it. This is not to say that in a particular case such a ground as has been advanced by the Applicant might not be appropriate.

18. I therefore order that the Respondent herein deliver up to the Court for the purpose of quashing the decisions contained in the letters of 8th November, 1994 and 2nd December, 1994 as purportedly gave directions pursuant to Section 24(1) of the Coroners Act, 1962.