High Court of Ireland Decisions

 


Neutral Citation No. [2004] IEHC 127

THE HIGH COURT

[2001 No. 634 J.R.]

JUDICIAL REVIEW

BETWEEN

ANNE MORRIS AND JOHN MORRIS

APPLICANTS

AND BRIAN FARRELL

RESPONDENT

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 12th day of March, 2004.

By order of this court (O'Donovan J.), made on 24^th September, 2001, the applicants were given leave to apply by way of an application for judicial review for the relief of:-

1. An order of certiorari of the decision of the respondent made on 27^th June, 2001, that the respondent as coroner was not legally in a position to release statements (or copies thereof) which were taken pursuant to a garda investigation into the fatal shooting of John Morris and which were in his possession.

2. An order of certiorari of the verdict and/or order in the inquest into the death of John Morris made on 28^th June, 2001, at Dublin City Coroner's Court. The grounds upon which the applicant was given leave are as follows:-

1. That the respondent erred in law and exceeded his jurisdiction in ruling that he could not legally permit the release to the applicants and their legal representatives of the statements or copies thereof, which were taken pursuant to a garda investigation into the fatal shooting of Mr. John Morris, which were in his possession.

2. That the respondent's above order was in breach of natural justice and fair procedures.

3. That the respondent exceeded his jurisdiction by not giving sufficient or any regard to the position of the Attorney General and the Commissioner of An Garda Síochána, as indicated by counsel appearing on their behalf, that they would have no difficulty in such documentation being made available to the legal representatives of the applicants.

4. That the respondent in deciding not to release the said documentation to the applicants prejudiced the ability of the applicants (as properly interested persons) and their legal representatives in exercising their right to participate in the inquest, including the cross-examination of witnesses, in a fair and effective manner.

5. That the respondent failed to adequately or sufficiently disclose the witness statements prior to the commencement of the inquest and thereby prejudiced the ability of the applicants to participate in the inquest.

6. By reason of the above matters the respondent conducted an inquest which was vitiated having regard to the provisions of article 2 of the European Convention on Human Rights.

Certiorari by way of Judicial Review:-

1. The grounds relied upon (at paragraph 1 above) are repeated mutatis mutandis as grounds upon which an order of certiorari by way of judicial review is sought of the verdict and/or order of the Inquest.

2. That the hearing of the inquest was in breach of natural justice and fair procedures.

3. That the said decision of the respondent not to release the documentation and the consequences of same for the participation of the legal representatives for the applicants in the inquest, resulted in an unfair hearing.

4. That the applicants, as properly interested persons, were denied a fair and effective participation in the hearing of the inquest.

5. That the inquest was flawed due to being an inadequate and insufficient inquiry.

6. That the respondent failed to adequately or sufficiently disclose the witness statements prior to the commencement of the inquest and thereby prejudiced the ability of the applicants to participate in the inquest.

The application is grounded upon the affidavit of Gregory F. O'Neill, solicitor.

He states that in September of 1997 he was initially contacted by the applicants in relation to the death of their son, John Morris, who was aged twenty six and who had been shot by members of An Garda Síochána on 4^th June, 1997, whilst he was involved in the commission of an armed robbery of the Newspread Offices at Goldenbridge Industrial Estate, Inchicore, in the City of Dublin and who died of his injuries on the following day, the 5^th June, 1997. The applicants were concerned with regard to rumours that they had heard that their son had been fired upon by the Gardaí on at least two occasions and had been wounded; that he had been lying on the ground when he received a fatal gun-shot wound to the back of the head. Mr. O'Neill states that his clients had no idea as to the detail of what had happened but were clearly deeply concerned at the rumours they had heard surrounding the circumstances of the shooting.

Mr. O'Neill says that the applicants subsequently instructed him to represent and advise them in relation to the matter. His instructions indicated that the circumstances of the fatal shooting of the deceased required a full and fair inquiry, to be carried out in accordance with law. He states that he made some initial enquiries on behalf of the applicants and learned that the inquest into their son's death would be listed for mention on 6^th November, 1997. He states that on the 4^th November, 1997, he wrote to the Commissioner of An Garda Síochána and to Detective Superintendent McLoughlin of the Serious Crime Task Force, asking for copies of all garda statements and eye witness statements, and to the respondent seeking a copy of the postmortem report. He indicates that the Commissioner replied to him by letter dated 11^th November, 1997, stating that it was necessary that the information gathered in the course of a criminal investigation remain confidential, and therefore could not accede to his request.

On 16^th April, 1998, he again wrote to Chief Superintendent O'Sullivan of the Office of the Garda Commissioner, seeking the relevant papers and documents and pointing out that the garda inquiry into the commission of the offences which gave rise to the circumstances in which the late Mr. Morris suffered fatal injuries had then concluded. He states that on 23^rd April, 1998, he received a letter in reply dispatched on 22^nd April, 1998, indicating that he could apply to the respondent under s. 29 (3) of the Coroners Act, 1962. Mr. O'Neill states that this provision only applies to documents, such as depositions, and reports taken at an inquest and verdicts of inquests, subsequently preserved by a coroner, and therefore had no relevance to his application.

Mr. O'Neill states that on 24^th April, 1998, he wrote to the respondent seeking copies of all statements on file including witness statements and any documents giving information touching the circumstances of the death of the late Mr. Morris. On 28^th April, 1998, a telephone call was received from a member of the staff in the respondent's office indicating that they would not send out any documents requested in his letter. Mr. O'Neill states that he subsequently contacted the respondent's office by telephone and spoke to a Mr. Ken Hall, the respondent's registrar, who informed him that the respondent was not in a position to furnish statements which had not yet been deposed, but that he had available to him a copy of Professor Harbison's deposition. By letter of 14^th May, 1998, and subsequently by his letter on 19^th May, 1998, enclosing a cheque for the fee in respect of the said deposition document, he applied for and received the deposition under cover of a letter of 26^th May, 1998. He states that the deposition furnished was in the briefest form deposing as to identification and as to cause of death as "a. Laceration and swelling of the brain due to b. a single bullet wound to the head".

Mr. O'Neill wrote to the Chief State Solicitor on 25^th June, 1998, requesting, inter alia, the furnishing of copies of statements or documents pertaining to the matter. He refers to further letters written by him on 27^th July, 1998, 8^th September, 1998, and 23^rd September, 1998, to the Chief State Solicitor requesting, inter alia, the furnishing of a copy of the Book of Evidence and statements relating to the prosecution arising out of the incident at Goldenbridge Industrial Estate. He states that in the intervening period the inquest into the death of John Morris was deferred pending the outcome of the Judicial Review proceedings taken by the applicants challenging rulings by the respondent directing that the garda witnesses who were involved in apprehending the late Mr. Morris's accomplices and in the fatal shooting of Mr. Morris could give their evidence behind a screen and be designated as garda witnesses A, B, C and so forth and also restricting the information tending to identify the particular firearm used by the garda who discharged the fatal shot killing the late Mr. Morris.

Mr. O'Neill indicates that these proceedings were brought in the High Court where in his judgment given on 8^th October, 1998, Kinlen J. quashed the said directions of the respondent. This ruling was appealed by the respondent to the Supreme Court and in the judgment delivered by the Chief Justice the Supreme Court upheld the appeal and power of the respondent to make the said ruling.

Mr. O'Neill indicates that the inquest was subsequently re-listed by the respondent. On 15^th June, 2001, he wrote to the respondent requesting, inter alia, the furnishing of a copy of the full report of Dr. Harbison and also copies of all material which had been given to the respondent, from which he had presumably extracted the draft depositions of the proposed deponents. Mr. O'Neill indicates that the letter further requested the furnishing of all relevant maps and photographs. On 15^th June, 2001, he also wrote to the Chief State Solicitor requesting, inter alia, the furnishing of all statements of witnesses to the events of the fatal shooting and copies of all maps and photographs of the scene. He states that having received no reply to this correspondence on 19^th June, 2001, he wrote to the Chief State Solicitor requesting once again, inter alia, the furnishing of all statements of witnesses to the events of the fatal shooting and copies of all maps and photographs of the scene. On 20^th June, 2001, a reply was received by fax from the Office of the Chief State Solicitor stating that instructions were being taken regarding the requests and that the writer would revert in due course.

Mr. O'Neill states that the decisions and rulings of the respondent and the failure of the State and the Commissioner of An Garda Síochána to divulge the requisite information touching the circumstances of the shooting of their son and the fact that the detailed pathologist's report of Dr. John Harbison was not made available to the applicants, accentuated their concerns regarding the circumstances of the death of their late son. Mr. O'Neill states that some days before the hearing of the inquest he was contacted by telephone by the registrar to the respondent and advised that a bundle of draft deposition statements were available to him for collection. He immediately collected these papers which he collated and indexed, copied and briefed to counsel retained by him for the applicants. Mr. O'Neill indicates that counsel advised that whilst this was an advance upon the sparse material already available it was entirely inadequate in the absence of the full disclosure of the statements of all witnesses, maps and photographs of the scene and a full pathologist report so that one could ascertain the direction of the shooting, the angle and trajectory of the shots fired, and the general topography of the scene i.e. where the vehicles mentioned were parked, the position of the different individuals vis-a-vis each other and so forth.

On 27^th June, 2001, the inquest was listed for hearing before the respondent. Mr. O'Neill instructed counsel on behalf of the applicants. The Attorney General and the Commissioner of An Garda Síochána were represented by senior counsel and junior counsel. He indicates that also in attendance was counsel instructed by Mr. Paul McDonald, solicitor of Arthur O'Hagan, Solicitors on behalf of individual members of An Garda Síochána, who were involved in the shooting of the late John Morris.

Mr. O'Neill states that there was a stenographer present at the hearing and that he has written to the offices of the respondent and the respondent seeking a transcript of the proceedings but has not received same. Mr. O'Neill indicates that at the start of the hearing of the inquest, counsel on behalf of the applicants made a submission to the respondent seeking the furnishing of documentation which was in the State's possession including all statements that were taken by the Gardaí in relation to the shooting and the investigation thereof, together with maps and photographs which were taken of the scene and location of the shooting and surrounding area. It is stated that, in the course of his submission, senior counsel for the applicants referred to and opened judgments of the European Court of Human Rights and referred in particular to the finding of the court in cases cited by him that the non-disclosure of witness statements, prior to their appearance at an inquest, prejudiced the ability of the applicants' family to participate in the inquest.

Mr. O'Neill indicates that in the course of his address to the Coroner's Court, counsel for the applicants made submissions, in which a number of particular points were advanced, which he summarises as follows:-

(a) That it was unnecessary to point out the importance of an inquest as an independent legal inquiry into how the late John Morris came to be shot dead by members of An Garda Síochána;

(b) that fair procedures for the next of kin would suggest at the very least, service of all relevant material. Only the statements of proposed deponents had been served and he noted in particular that that appeared to be the entirety of what the coroner had been given by the garda authorities; it is indicated by Mr. O'Neill at this point that some minutes later, on being shown what appeared to be a full copy of the garda file in the office of the registrar to the respondent, he and counsel learned that they were mistaken in this understanding.

(c) that thus it appeared by reason of the non-service of the remaining material that it was the State and the garda authorities, namely, those apparently responsible for the killing of the late John Morris, who would dictate or direct the disclosure to be made available;

(d) that, at the very least, maps and photographs which had been brought into existence in the context of the criminal investigation which followed the robbery and the shooting should have been made available to the legal representatives of the applicants. To ascertain who did what and from where, the significance of the maps and photographs was apparent;

(e) that it appeared that the State, in all of its manifestations, and the Gardaí were deliberately withholding vital relevant material, that a culture of secrecy was contrary to the proper conduct of the inquiry before the Coroner's Court and would lead unwittingly to a public perception that it was the Gardaí and the State and not the coroner and the jury who dictated the content and context of the inquest;

(f) that the refusal to serve the material substantially eroded the independence of the system of the coroner's inquest. The necessity to allay rumour or suspicion was among the public policy consideration

central to the coroner's inquest which was identified by the Supreme Court in its judgment in the case Farrell v. Attorney General [1998] 1 IR 203.

(g) That the requirement for a full and thorough inquest into the death could not be respected when the authors of Mr. Morris' death held all the cards and refused to share them - all the power but little responsibility.

Mr. O'Neill indicates that counsel on behalf of the State indicated to the respondent that the State was prepared to make available to the applicants whatever documentation was required, subject to the Supreme Court ruling in Morris v. Dublin City Coroner [2000] 3 IR 592. He indicated that the State had already made available to the respondent documentation (comprising all of the statements taken by the Gardaí) and would have no difficulty in such documentation being made available to the legal representatives of the applicants. It is indicated that counsel for the individual Gardaí also stated that he had no objection to that course.

Mr. O'Neill indicates that the respondent then stated that he would reserve his judgment on the issue until later in the day. He stated that he did not believe he was under any obligation to release draft depositions of the proposed witnesses but he had nonetheless furnished these draft depositions to the applicants in advance of the hearing. He further stated that his office had been supplied with documentation, comprising the statements taken by the Gardaí, and that he had perused these documents and extracted the statements which he believed were necessary to show a coherent and chronological account of the death of the deceased. It is indicated that these extracted statements as amended by the respondent became the draft depositions. The respondent further stated that this application had come very late in the day. Counsel on behalf of the applicants objected and pointed out that Mr. O'Neill or his office had sought the furnishing of the documentation in correspondence going back to 24^th April, 1998. At this stage the respondent stated that he would rise to consider the matter and in the meantime allow the legal representatives of the applicants to see the documents with which he had been furnished by the State.

Mr. O'Neill states that after the respondent had risen he was handed a book of photographs by the representatives of the Garda Commissioner. This was the first opportunity the applicants or their legal representatives had to see such photographs. He states that these were subsequently returned by him to a detective garda who sought their return from him later on the same morning as he was leaving the Coroner's Court building.

Mr. O'Neill then states that the applicants and he were then escorted to the rooms of the registrar to the respondent where the registrar pointed to the documents which were furnished to the respondent by the State. He indicates that there were four large bound volumes which appeared to consist of the part of the garda investigation report containing statements taken from witnesses. In his estimate the books of statements comprised approximately 600 to 800 pages. He indicates that he and counsel had an opportunity for a matter of two to three minutes to quickly flick through the four bound volumes of statements and in that time observed that a number of statements had been taken from eye witnesses to the shooting who were both members of An Garda Síochána and also civilian witnesses. He indicates that no opportunity was given to him or to counsel to read any of the statements or to make a copy of the same. He indicates that he was reinforced in the view that counsel representing the Garda Commissioner and the Attorney General had available to them a considerable volume of information touching the circumstances of the death of the deceased which information was not being made available to the applicants or their legal representatives. He states that they were then politely invited to leave the registrar's office and go back to the Coroner's Court.

Mr. O'Neill states that the applicants were then informed of the existence of the material and that they had not been given any real access to it. He states that this reinforced the perception of the applicants that the practice and procedure adopted by the respondent for the conduct of the inquest did not give to them or to their legal representatives a fair opportunity to permit of their meaningful participation in the inquiry to be conducted into the violent death of their son.

Mr. O'Neill states that the respondent sat again after some minutes and gave his ruling. He indicated the witnesses that he intended to call and that draft depositions had been furnished to the legal representatives of the family. He stated that he now had the full report of Dr. Harbison and that it would now be furnished to all interested parties. Mr. O'Neill states that at this stage he was handed a copy of the deposition/report. This was the first opportunity the applicants or their legal representatives had to see this deposition or report. This is exhibited by Mr. O'Neill in his affidavit.

The respondent then stated that he had shown to the legal representatives of the applicants the volumes of statements that he had received from the garda authorities and that he had selected from that material such statements that gave in a chronological order the events leading to the death of the late John Morris. He stated that a serious legal difficulty obtained, that the question arose as to where the ownership in the original statements vested. He ruled that the statements from an investigation report are police property and vest in the garda authorities and as coroner he could not, without a breach of trust or confidence, release this material, and that he was not legally in a position to release such material. Mr. O'Neill indicates that at this stage counsel on behalf of the applicants indicated that it would not be possible for the legal representatives of the applicants to discharge their professional duty to the applicants in terms of participating in an inquest in which they were so disadvantaged in not having the said documentation, maps and photographs and that in the circumstances they were left with no alternative but to withdraw. Mr. O'Neill indicates that the inquest continued in the absence of the applicants and their legal representatives and that at the conclusion of the inquest the jury returned their verdict. This is exhibited by Mr. O'Neill. Mr. O'Neill asserts that the procedure adopted by the respondent in circumstances where the representatives of the garda authorities and the Attorney General had access to all the information and material surrounding the circumstances of this death and the legal representatives of the family were so hampered was fundamentally unfair, particularly so as this was and is likely to be the only forum allowing for an investigation into the death of the deceased, which occurred in circumstances of such violence.

Mr. O'Neill has exhibited with his affidavit the correspondence referred to by him.

A statement of opposition has been filed on behalf of the respondent in which the following grounds are set forth:-

1. An inquest is inquisitorial in nature and, accordingly, the procedures at an inquest are solely a matter for the coroner, subject only to the

requirement to comply with the Coroners Act, 1962 and to observe the requirements of natural justice and fair procedures.

2. The determination of the respondent not to release statements (or copies thereof) taken by members of An Garda Síochána in the course of an investigation into the fatal shooting of John Morris was lawful and within jurisdiction.

3. It is denied that the aforementioned determination was in breach of natural justice and fair procedures and/or resulted in a hearing of the inquest which was unfair or otherwise in breach of the principles of natural justice and fair procedures.

4. It is denied that the respondent failed to give sufficient or any regard to the position of the Commissioner of An Garda Síochána and/or the State in relation to disclosure of documentation to the legal representatives of the applicants.

5. The respondent had no authority to disclose witness statements prepared by or on behalf of a third party in connection with an entirely separate investigation, namely, the criminal investigation into the incident giving rise to the death of John Morris. Ownership of the said witness statements remained, at all times, with the said third party.

6. The respondent had no jurisdiction to order any third party to make discovery of documents owned by that third party or otherwise in its possession, power or procurement.

7. It is a matter for the coroner, in his discretion, to determine the evidence to be adduced at an inquest, having regard to the fact that an inquest is a fact-finding investigation into the circumstances of death and not an investigation of criminal or civil liability. The coroner in deciding what evidence was relevant to the inquest acted reasonably and correctly.

8. The applicants' legal representatives were provided, in advance of the inquest, with copies of draft depositions prepared by or on behalf of the respondent in respect of all relevant and material witnesses which the respondent proposed to summon to give evidence at the inquest.

9. It is denied that the aforesaid determination of the respondent prejudiced the ability of the applicants, as properly interested persons, and/or their legal representatives to participate in the inquest in a fair and effective manner.

10. If, which is denied, the applicants and/or their legal representatives suffered any prejudice to their ability to participate in the inquest in a fair and effective manner, any such prejudice (which is denied) was due solely to the decision of the applicants and their legal representatives to withdraw from the proceedings at the inquest.

11. It is denied that the inquest constituted an inadequate and insufficient inquiry or was otherwise flawed.

12. The European Convention on Human Rights does not form part of the domestic law of Ireland. Without prejudice to the foregoing, it is denied that the inquest conducted by the respondent was vitiated having regard to the provisions of the said Convention, as alleged or at all.

13. Save as expressly admitted herein or in any affidavit delivered on behalf of the respondent in the within proceedings, the respondent denies each and every allegation touching and concerning the said respondent and same are denied as if set forth and traversed seriatim.

An affidavit has been sworn by respondent. He states that he is a registered medical practitioner, barrister-at-law and Coroner for the City of Dublin.

The respondent indicates that the inquest in question commenced on 16^th July, 1997, and was adjourned initially on the grounds that criminal proceedings in relation to the death were being considered and that the inquest resumed before him on Wednesday, 27^th June, 2001.

Mr. Farrell indicates that the applicants' solicitor wrote to him in April, 1998, requesting disclosure pursuant to s. 29 (3) of the Coroner's Act, 1962 of all witness statements in his possession relating to the incident giving rise to John Morris' death. He indicates that the obligation imposed by this section arises only after conclusion of an inquest and relates only to the disclosure of certain records including witness depositions relating to the inquest. On this basis he asserts that s. 29 (3) did not provide statutory authority for the release of the documents requested on behalf of the applicants.

Notwithstanding the absence of an expressed statutory provision permitting or requiring disclosure by a coroner of the coroner's records in advance of an inquest, he believes that, having regard to the obligation to conduct an inquest in a fair manner, a coroner has a discretion to make such disclosure. He states that having regard to the requirements of natural justice and fair procedures it is his practice in certain inquests, where he believes that the requirements of natural justice so require, to make relevant records (such as draft witness depositions and the postmortem report) available to properly interested persons, including the family of the deceased, prior to any inquest, so that such persons might participate in the inquest in a full and effective manner and without disadvantage.

The respondent states that he is advised that his discretion is limited to documents belonging to him and his office and that as coroner he has no jurisdiction to compel any third party to make discovery of documents. He states that he has responsibility to determine which witnesses and which aspects of their statements are relevant to the issues before the Coroner's court. He indicates that any witness who could give material evidence before the inquest on any relevant issue was in fact so selected for making a deposition. He refers to the transcript of the inquest in support of this contention. He also exhibits correspondence passing between the applicants' solicitor and himself. He indicates that having considered the request from the applicants' solicitor for witness statements in April, 1998, he declined to release same at that time. He indicates, however, that a copy of the deposition of the State pathologist dated 16^th July, 1997, was forwarded to the applicants' solicitor on 26^th May, 1998.

The respondent indicates that the inquest was listed for hearing on 26^th October, 2000, and in advance of that date he wrote to the applicants' solicitor detailing those witnesses summoned to give evidence at the reopened inquest. He refers to the correspondence in this regard. He indicates that the hearing of the inquest scheduled for October, 2000 was adjourned at the application of the applicants. This seemed to be for the purposes of obtaining legal aid.

The respondent refers to the request made on 15^th June, 2001, requesting:-

(a) a copy of the full postmortem report of the State pathologist, Dr. John Harbison,

(b) copies of all material which had been given to him from which this deponent had "presumably extracted the proposed deponents",

and

(c) all relevant maps and photographs.

He indicates that, in response to this request and having considered further the submissions made, his registrar telephoned the applicants' solicitor to advise that copies of the draft witness depositions were available for collection and the applicants' solicitor arranged for the prompt collection of these depositions. He states that he did not have, and was not therefore in a position to provide, copies of maps and photographs of the scene of the incident. He states that, in accordance with normal practice, copies of the maps and photographs were received by him at the resumed hearing of the inquest on the 27^th June, 2001, and were then made available to all properly interested persons, including the applicants. He understood that a copy of Dr. Harbison's full postmortem report had previously been provided some considerable time prior to the resumption of the inquest. He states that, in fact, a draft report only had been provided. Once realised, this oversight was immediately corrected and a copy of the full report was made available to the applicants' legal representatives on 27^th June, 2001, when the inquest reopened.

With regard to correspondence passing between Mr. O'Neill and the Commissioner of An Garda Síochána and the office of the Chief State Solicitor over a period from November, 1997 to June, 2001, requesting disclosure of statements comprising the Book of Evidence, he states that he was not a party to and was unaware of the fact of that correspondence.

The respondent indicates the manner in which draft depositions are prepared by him and/or his office for use at inquests. He states that it is the practice of An Garda Síochána, as a matter of courtesy and efficiency, to make available to the coroner statements they have taken from witnesses during any investigation into the circumstances surrounding a death. He indicates that witness statements, such as the Book of Evidence provided to him in this case, are made available in order to avoid a coroner having to make investigations similar and parallel to those already carried out by the garda authorities. He indicates that it should be stressed that there is no obligation on the Gardaí to provide the coroner with witness statements or with any Book of Evidence served on any accused in respect of a criminal prosecution arising out of the events giving rise to the request. He states that any assistance provided by the garda authorities in this regard is provided entirely on a voluntary basis to facilitate him in carrying out his statutory duties.

On receipt of witness statements made to the investigating Gardaí, it is his practice to prepare or direct the preparation of draft depositions from the witness statements deleting only irrelevancies or inaccuracies contained therein. He states that draft depositions are prepared, having regard to a number of considerations, in particular:-

(a) the inquisitorial nature of an inquest as a fact finding exercise only,

(b) the need to exclude any inadmissible material which might include motive, liability or otherwise make comment on the facts contrary to the statutory prohibitions of consideration of civil or criminal liability and of censure or exoneration of any persons set out in ss. 30 and 31 of the Coroners Act, 1962,

(c) the need to exclude any irrelevant, scandalous or defamatory material

and

(d) the need to focus on the issues that delimit the scope of the coroner's jurisdiction.

He indicates further that as an inquest is an oral hearing, any depositions so prepared is in draft form only and will become a formal deposition only when evidence is given orally by the witness at the inquest and the deposition, (containing any appropriate amendments consequent upon the said oral testimony) has been signed by the witness or the deposition is otherwise admitted into the record by the coroner.

The respondent states that, as regards correspondence addressed to him requesting release of the witness statements from which the draft depositions in the case had been prepared, he believes that the Book of Evidence was prepared as police property, remained at all times police property, and that he obtained no legal title to the Book of Evidence and had neither authority to release, nor had jurisdiction to direct the Commissioner of An Garda Síochána to release the Book of Evidence to the applicants. He states that, on the other hand, he had a discretion to disclose draft witness depositions and, as outlined above, these were made available to the applicants' solicitor in due course, together with the postmortem reports. He states that he received no representations that the documents supplied by him were inadequate or in any way deficient. He indicates further that the applicants' solicitor was invited to attend a meeting scheduled for Monday 25^th June, 2001, to consider the ballistics report (a copy of which had been provided to the applicants' solicitor) and to discuss any outstanding issues prior to the reopening of the inquest on Wednesday 27^th June, 2001, so as to enable the applicants, as properly interested persons, to participate effectively in the inquest once reopened. He states that, as the applicants' solicitor declined to attend this meeting, he assumed the applicants had no further requirements, that there were no outstanding matters and that the inquest was ready to proceed. In this regard he refers to a contemporaneous file note and diary entry each recording the telephone conversation between Shane Boyne of his office and the applicants' solicitor.

He states that, in view of the response to this invitation and bearing in mind that he was not a party to correspondence between the solicitor and third parties, he did not anticipate the application made by counsel for the applicants on the morning the inquest reopened seeking disclosure of all documents in the possession of the State and/or the Commissioner of An Garda Síochána, including all witness statements and any maps and photographs taken of the scene of the incident. He states that implicitly in the application for disclosure was a request for time for the applicants and their legal advisors to consider any documents disclosed. He states that it is relevant to note the practice in his court that persons seeking, or anticipating the need for, an adjournment should mention any such request to him in advance of the hearing date. He states that this practice is designed to facilitate the efficient management of inquests and to avoid unnecessarily summoning of jurors and witnesses to attend in circumstances where the inquest cannot proceed. He states that in this case twenty eight witnesses were due to give evidence at the reopened inquest. He states that, having requested adjournments on several occasions since the inquest opened in 1997, the applicants' solicitor was familiar with this practice. On the morning the inquest reopened he empanelled the jury, ascertained that witnesses were present and oversaw the security arrangements put in place for the inquest, having regard to the decision of the Supreme Court in Morris v. Dublin City Coroner [2000] 3 IR 592. He indicates that during this time no intimation was given that an application would be made in relation to disclosure of other material on the reopening of the inquest.

The respondent indicates that in the instant case the determination of relevant and material evidence to be adduced at the inquest was made by him having regard to the function of the inquest as a determination of the facts and circumstances surrounding the death of John Morris. He indicates his belief that the applicants suffered no disadvantage by virtue of the procedures adopted and in particular by not receiving the Book of Evidence. He indicates that depositions were prepared for all relevant and material witnesses who could give evidence as to the place, time and method of death or who could say and which would assist the jury in making recommendations of a general character designed to prevent future fatalities, including all relevant civilian witnesses (onlookers, employees working in the Goldenbridge Industrial Estate and those persons imprisoned as a result of the incident giving rise to the death of John Morris) and members of An Garda Síochána. He indicates that in a limited number of cases where depositions could not be prepared, material witnesses were called to give oral evidence. He refers to the list of witnesses who gave evidence and in respect of whom depositions were prepared and compares this with the list of the witness statements comprised in the Book of Evidence. He expresses the view that all relevant and material witnesses were called to give evidence at the inquest. He states that, on hearing the application by counsel for the applicants, he adjourned the inquest for a period of approximately thirty minutes during which time his registrar showed the Book of Evidence to the applicants' solicitor and counsel. He states that the purpose of making available the Book of Evidence in this manner was to reassure counsel for the applicants that he and not any third party had selected the witnesses to give evidence at the inquest from the witnesses statements in the Book of Evidence and that the witnesses so selected comprised all relevant civilian witnesses (including those persons subsequently imprisoned as a result of the incident) as well as members of An Garda Síochána.

The respondent refers to the fact that the inquest in question had been adjourned for a considerable period on numerous occasions. He states that it was initially adjourned at the request of An Garda Síochána to allow criminal investigations to be conducted and was subsequently further adjourned at the applicants' request to allow the applicants seek judicial review of certain determinations made by him relating to the preservation of the anonymity of certain garda witnesses. He states that further adjournments were granted again at the applicants' request, to enable the applicants to apply for legal aid. He states that in total the matter had been listed for hearing or for mention before him on twenty five occasions. He exhibits a list of such dates.

Having considered the submissions made in the matter he indicated that he refused the application of counsel for the applicants. He states that he indicated that he would entertain further submissions from counsel for the applicants on any matters which might arise during the course of the inquest. He states that in reaching his determination, he had regard to all the circumstances of the case, in particular:-

(a) the considerable period which had elapsed since the inquest opened in 1997,

(b) the draft depositions that had been prepared in respect of all witnesses who could offer relevant and material evidence at the inquest,

(c) the fact that he had exercised his discretion to make available relevant documentary records, including the said draft depositions and the postmortem report, in advance,

(d) that he, not being a party to the correspondence between the applicants' solicitor and the Commissioner of An Garda Síochána and the Chief State Solicitor, had received no indication that the said documents provided were inadequate,

(e) that the Book of Evidence had been provided to him solely for the purpose of assisting him in the exercise of his statutory functions and not for the purpose of disclosure to third parties,

(f) that he has no jurisdiction to direct third parties to make discovery of documents belonging to them,

(g) that as a matter of fact, the applicants and their legal representatives suffered no disadvantage from the procedures adopted and in particular, by not receiving the Book of Evidence, as all relevant and material witnesses had been summoned to give evidence at the inquest and, accordingly, the applicants and their legal representatives were in a position to participate fully and effectively in the inquest,

(h) the opportunity to be afforded to counsel for the applicants to make submissions on any matters arising during the course of the inquest, including any application for a further adjournment during the hearing, if deemed to be necessary.

He states that, on hearing his determination, counsel for the applicants indicated their intention to withdraw from the proceedings, whereupon they and their legal advisers then left the Coroner's Court.

A replying affidavit has been sworn by Mr. O'Neill in which he refers to and exhibits a copy of a letter of 11^th October, 2000, to the respondent wherein he requested copies of the proposed deposition statements. He states that he received no response to this letter.

Mr. O'Neill refers to the adjournments obtained for the purposes of addressing the issue of legal aid and the fact that with regard to the report of Dr. Harbison he had been furnished only with a one page summary for the purposes of generating a death certificate. With regard to the invitation to attend the respondent's office on 25^th June, 2001, he indicates that the invitation as conveyed to him related solely to a discussion on the ballistics report. He states that he was advised and believed that such a meeting was inappropriate and that decisions on the issue of the presentation of the ballistics report should be made at a hearing before the coroner. He indicates that he communicated his decision not to attend to the office of the respondent. He indicates that it is clear from the correspondence exhibited that the respondent was aware of the fact that he had not, prior to the inquest, furnished Mr. O'Neill with copies of all statements available to him nor had he furnished a copy of Dr. Harbison's full report nor any of the maps or photographs of the scene of the fatal shooting. On this basis he states that there were outstanding matters in terms of prior disclosure of documents needed by the legal representatives of the Morris family in the proper discharge of their professional duties to them and the process of the inquest itself.

Submissions

On behalf of the applicants it is submitted by Mr. Gageby, S.C., having referred to the provisions of the Constitution contained in Article 40.3.2 pertaining to the vindication of life, that the obligation on the State to vindicate the right to life includes a duty to investigate in an effective and independent manner the death of a person, particularly the death of a person in violent and contentious circumstances at the hands of the agents of the State. It is submitted that pursuant to this constitutional obligation, the State owes to the next of kin of a citizen, who has been killed in such circumstances, a duty to investigate that killing in the manner that vindicates the right to life of the citizen. Counsel concedes that the Coroners Act, 1962 (hereinafter referred to as "the Act of 1962") being a post-constitutional Act carries a presumption of constitutionality. He says that, accordingly, it must be carried out in a manner compatible with the constitutional obligation. It is submitted that an inquest pursuant to the Act of 1962, whilst not an inquiry into civil or criminal liability, is part of the legal machinery by which the State can vindicate the right to life. Counsel submits that the non-disclosure of the documents in the instant case resulted in a failure to carry out an effective, fair and independent investigation into the death of the applicants' son and accordingly was a failure to vindicate the aforesaid right. Counsel submits that it is a central function of the Coroner's Court in holding inquests to allay rumours or suspicions in relation to a sudden violent death and to draw attention to the existence of circumstances, which, if un-remedied, might lead to further deaths. Counsel submits that this function is of particular importance in cases where the inquest is inquiring into a contentious death at the hands of the servants or agents of the State. Counsel submits that this function cannot be achieved by the non-disclosure to the applicants, as properly interested persons in such an inquest, the statements which were taken in connection with the investigation into the fatal shooting of John Morris and surrounding events, which said statements were in the possession of the respondent. Counsel submits that the failure to discharge this central function at an inquest by the particular non-disclosure in the instant case, must be seen in light of the fact that both the representatives of the Commissioner of An Garda Síochána, the Attorney General and the individual members of An Gardaí Síochána at the inquest had access to the said documents.

Counsel refers to Farrell v. Attorney General [1998] 1 IR 203 at p. 224 where Keane, J., quoting from the report of the Broderick Committee on Death Certification and Coroner's Inquests (Cmnd. 4810) stated that the Committee concluded that the following were the grounds of public interest which a coroner's inquest should serve:

"I. To determine the medical cause of death;

II. To allay rumours or suspicions;

III. To draw attention to the existence of circumstances which, if unremedied, might lead to further deaths;

IV. To advance medical knowledge;

V. To preserve the legal interests of the deceased person's family, heirs or other interested parties."

It is submitted that the applicants are properly interested persons in the interests of the deceased and as such are entitled to fair procedures and natural justice by way of meaningful participation in the inquest. This includes, inter alia, the cross examining of witnesses, and the offering of further evidence before the inquest and the making of submissions to the Coroner's court. It is submitted that, if such rights are to be exercised in a meaningful way, the applicants should have been furnished with the said documents. It is further submitted that the ruling of the coroner did hinder them and their legal representatives from participating in an effective and meaningful manner. It is further submitted that the ruling of the respondent as to ownership of material was wrong in law. It is submitted that in basing his decision not to disclose the documents on a view that he was not legally in a position to release such material, as ownership of the statements vested in the garda authorities, was wrong. It is submitted in law that he had not only the power to disclose the documents to the applicants but was also under a duty so to do. In this regard reliance is placed upon the fact that the legal representatives present at the inquest on behalf of the Attorney General, the Garda Commissioner and the individual members of the Gardaí did not pursue a claim of non-disclosure of the documents on any ground of privilege, confidentiality or security. It submitted that any doubt that the respondent may have had in relation to this issue was overcome by the consenting position of the Attorney General, the Commissioner of An Garda Síochána and the individual members of An Garda Síochána to the disclosure of the documents as indicated by counsel appearing on their behalf.

It is further submitted that the ruling of the coroner in the instant case was contrary to the European Convention of Human Rights. While it recognised that the Convention was at the relevant time not part of the domestic law of the State, it is submitted that the case law of the European Court of Human Rights in relation to article 2 of the Convention is helpful and persuasive in relation to the vindication of the constitutional right to life. Article 2 of the Convention provides as follows:-

"Article 2 – Right to life

1 Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2 Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

a in defence of any person from unlawful violence;

b in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

c in action lawfully taken for the purpose of quelling a riot or insurrection."

In Hugh Jordan v. United Kingdom (4^th May, 2001) the European Court of Human Rights dealt with the issue of pre-inquest disclosure in the context of a case where the deceased was shot by an officer of the Royal Ulster Constabulary. At para. 105 of the judgment, the court in discussing the obligations imposed by article 2 stated:-

"The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to 'secure to everyone within [its] jurisdiction the rights and freedoms defined in the Convention', also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force …. The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative to the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures…."

In relation to the non-disclosure of documents the court continued at paras. 133 and 134 of the judgment as follows:-

"133.  As regards access to documents, until recently the applicant was not able to obtain copies of any witness statements until the witness concerned was giving evidence. This was also the position in the McCann case, where the Court considered that this had not substantially hampered the ability of the families' lawyers to question the witnesses (cited above, p. 49, § 62). However it must be noted that the inquest in that case was to some extent exceptional when compared with the proceedings in a number of cases in Northern Ireland (see also the cases of McKerr v. the United Kingdom, no. 28883/95, Kelly and Others v. the United Kingdom, no. 30054/96, and Shanaghan v. the United Kingdom, no. 37715/97). The promptness and thoroughness of the inquest in the McCann case left the Court in no doubt that the important facts relating to the events had been examined with the active participation of the applicants' experienced legal representative. The non-access by the next-of-kin to the documents did not, in that context, contribute any significant handicap. However, since that case, the Court has laid more emphasis on the importance of involving the next of kin of a deceased in the procedure and providing them with information (see Ögur v. Turkey, cited above, § 92).

134. Further, the Court notes that the practice of non-disclosure has changed in the United Kingdom in the light of the Stephen Lawrence Inquiry and that it is now recommended that the police disclose witness statements 28 days in advance (see paragraph 73 above). Disclosure of the documents has now been made to the applicant in advance of the next stage of the inquest procedures (see paragraphs 50-54 above). This development must be regarded as a positive contribution to the openness and fairness of the inquest procedures. The Court is not prepared to reach any findings concerning the alleged incompleteness of the disclosure at this stage. There is nothing before it to suggest that materials necessary to the examination of the facts have been withheld. It may be observed however that lack of access to the witness statements was the reason for several adjournments in the inquest (see further below, paragraph 136). The previous inability of the applicant to have access to witness statements before the appearance of the witness must also be regarded as having placed him at a disadvantage in terms of preparation and ability to participate in questioning. This contrasts strikingly with the position of the RUC who had the resources to provide for legal representation and full access to relevant documents. The Court considers that the right of the family of the deceased whose death is under investigation to participate in the proceedings requires that the procedures adopted ensure the requisite protection of their interests, which may be in direct conflict with those of the police or security forces implicated in the events. Prior to the recent development in disclosure of documents, the Court is not persuaded that the applicant's interests as next-of-kin were fairly or adequately protected in this respect."

Counsel refers to Edwards v. United Kingdom ...14^th March, 2002) in which the European Court of Human Rights dealt with a case of the death of the applicant's brother whilst detained in prison in Northern Ireland. At para. 69 of this judgment the court stated as follows:

"69. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to 'secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention', also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, p. 49, § 161, and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, p. 324, § 86). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see, for example, mutatis mutandis, Ilhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000-VII)."

The court continued at para. 73 by stating, inter alia, as follows:-

"[T]here must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests."

Counsel submits that in the instant case there was a want of equality of arms, having regard to the lack of documentation in the hands of the applicants.

Counsel refers to the respondent's ruling in which he refused to release the

material in his possession, obtained from the Gardaí, on the basis of a perception of a breach of trust or confidence were he to release same. It is submitted that in this regard what he stated was not a correct statement of the law where he suggested that the documents in question were the property of the garda authorities. It is furthermore submitted that he failed to take the waiver communicated by counsel into account in his determination. It is submitted, even if one were to hold that the property in the documentation in question was that of the garda authorities, that the respondent had discretion and should have exercised same in favour of the applicants by releasing the documentation. It is submitted by counsel that the duty on the respondent was to respect the rules of natural justice. Counsel accepts the limited nature of the inquest but submits that the decision of the coroner was one contrary to law and that he had no jurisdiction to commit an error of law. It is submitted that having regard to the nature of the ruling given he could not vindicate the applicants' interest.

Counsel refers to the authority of Farrell v. Attorney General [1998] l I.R. 203 at 223 where Keane J. under the heading 'The Applicable Law', stated as follows:

"The holding of an inquest by a coroner, with or without a jury, has been a feature of our law for many centuries. While few would dispute the need to have a public inquiry by a person with appropriate legal or medical qualifications into the death of a person as a result of violence or in other circumstances which render such an investigation appropriate, our present law governing inquests, despite its partial modernisation in 1962, is in some ways anachronistic, as witness the continuing jurisdiction to hold inquests into "treasure trove" (see s. 49 of the Act of 1962.).

In its modern form there are two features of the coroner's inquest which are of particular relevance to this case. First, it is a purely inquisitorial procedure. As Lane L.C.J. put it in R. v. South London Coroner, ex parte Thompson (1982) 126 S.J. 625:-

'. . .it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a criminal trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use.'

Secondly, the verdict resulting from an inquest cannot impose civil or criminal liability of any sort on any person. Section 30 of the Act of 1962 provides that:-

'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.'

Consistently with that provision, s. 31 (1) provides that neither the verdict nor any

rider to the verdict is to contain a "censure or exoneration" of any person, although general recommendations designed to prevent further fatalities may be appended to the verdict.

An inquest is thus a purely fact finding exercise which, subject to one qualification explained below, has no strictly legal consequences. The public policy underlying the requirement that it should be held in the circumstances defined in the Act of 1962 were helpfully explained in England in the Report of the Broderick Committee on Death Certification and Coroners Inquests (Cmnd. 4810). They concluded that the following were the grounds of public interest which a coroner's inquest should serve:-

'I. To determine the medical cause of death;

II. To allay rumours or suspicions;

III. To draw attention to the existence of circumstances which, if unremedied, might lead to further deaths;

IV. To advance medical knowledge;

V. To preserve the legal interests of the deceased person's family, heirs or other interested parties.'

The qualification to the general principle that a coroner's inquest has no strictly legal consequences is to be found in s. 50 (l) which provides that:-

'Where, in pursuance of this Act, a coroner-

(a) holds an inquest, or

(b) adjourns an inquest at which evidence of identification and medical evidence as to the cause of death has been given, or

(c) decides, as a result of a postmortem examination, not to hold an inquest; he shall furnish the appropriate registrar of births and deaths with a certificate containing such particulars for the registration of the death as may be prescribed after consultation with the Minister for Health and the death shall be registered accordingly."'

Counsel refers to Morris v. Dublin City Coroner [2000] 3 IR 592 in which Keane C.J. stated, inter alia, as follows at p. 608 of the report:

"I am satisfied that, provided the respondent complies with the requirements of the Act of 1962 and observes the requirements of natural justice and fair procedures, he is entitled to conduct the inquest in the manner which he thinks best adapted to serve the grounds of public interest identified at an earlier part of this judgment.

Given that there are no provisions in the Act of 1962 or in any regulations made thereunder either permitting or prohibiting the procedures proposed to be adopted by the respondent in the present case, he was clearly entitled to adopt the course he did of preserving the anonymity of the gardaí concerned, so far as he could, while ensuring that the inquest was held in public and that the other legal requirements to which I have referred were observed. That also applies to the deletion of the identification of the particular weapon used from the forensic report and the screening of the garda witnesses from the public gallery."

By reference to this paragraph, counsel stresses the importance that the respondent complies with the requirements of natural justice and fair procedures.

Counsel referred this court to A.D. v. Ireland [1994] 1 I.R. 369 in which Carroll J. stated, inter alia, at p. 372 of the report:

"I accept the plaintiff's point that if the courts find there is a constitutional right which is being ignored by the State, the courts will also find a remedy in the absence of the State undertaking to observe that right."

Counsel refers to Reg. v. H.M. Coroner, ex p. Peach [1980] l Q.B. 211 in which the applicant in those proceedings sought a declaration that the coroner was entitled to make available to the applicant the statements of all witnesses whom he proposed to examine touching the death of the deceased. In this case the claim was inspired by the fact that the coroner had expressed the view that he was prevented by law from disclosing the documents in question. At p. 218 of the report Widgery L.C.J., stated, inter alia, as follows:-

"In preparation for the hearing before the coroner consideration has been given to whether the applicant, who is an interested person in the inquest, should be entitled to see and profit from some 60 odd statements which have been taken in respect of this case and which he would naturally wish to see in preparations for the hearing.

The method of obtaining these statements, as we have been told in the course of argument, is this. The police, first of all, when a serious complaint is made against one of their number must take evidence in order to deal with the disciplinary inquiry which is bound to follow. Apart from any other obligation or desire the police may have had to take statements in this case, they were bound to take elaborate statements to satisfy their duty under the relevant Police Acts. Those documents as a matter of practice and goodwill are in general in practice allowed to be given to the coroner to avoid his having to make similar and parallel investigations. There does not seem to be any legal authority for this being done, but it is obviously extremely sensible. In this case, as in many others we are told, the statements to which I have referred were handed over to the coroner so that he could use them to decide what witnesses to call and generally to make arrangements for the orderly calling of the evidence at the inquest.

The applicant now seeks to have a sight of these documents, or, alternatively, to take copies of them, and his claim is based on a number of grounds.

First of all, as I say, the method of preparation of the statements to which I have already referred indicates that those statements started as police property and, in my judgment, continued as police property, and at the present time are police property. I see no way in which anyone other than the police authorities can obtain any sort of legal title to these documents, and therefore prima facie they are not available to be handed over to the applicant. Prima facie the present custodian of the documents, the coroner, could not without breach of confidence or trust show them to the applicant."

Lord Widgery referred to rule 16 of the Coroner's Rules, 1953, which provided,

inter alia,

"(1) Without prejudice to any enactment with regard to the examination of witnesses at an inquest, any person who in the opinion of the coroner is a properly interested person shall be entitled to examine any witness at an inquest, either in person or by counsel or solicitor".

He then continued as follows:

"One sees consequently that the rule creates a clear and understandable right for any person interested to the degree required by the coroner to examine any witnesses at the inquest. If one gives those words their ordinary meaning, that means that the person so selected can question any witness at the inquest, but it does not, in my judgment, in any way affect the fact that the documents in question are still the property of the police and not within the coroner's disposition at all.

Of course any lawyer will say that one cannot examine a witness unless one can cross-examine. That is an understandable point of view as a lawyer's expression. But to my mind in these rules the expression 'examine any witness' merely means "question a witness," and what is contemplated is that the party in question should be able to put to the witness his allegations, put the points which he wants to raise at the inquest. It is not necessary for that purpose to have all the statements, although it would no doubt be a very interesting exercise very often for counsel for the applicant if he could.

In my judgment, there is nothing in rule 16 which takes the matter one inch further forward, and so one is finally thrown back on the contention that the denial of these documents to the applicant is a breach of the rules of natural justice.

One can understand such an application being made and such a description being given to what is now being done. The applicant's counsel, both here and one understands below, were eloquent in their description of how important it was that even-handed justice should prevail, and that if the police were allowed one copy of the statements then the applicant should be allowed another copy.

Again, all of that makes good listening, but one must keep one's eye on the ball and come back to what is the main question here. It is important, I think, to stress that, as far as I know, there never has been a case in which natural justice was invoked through the denial of documents except when the person to whom the documents had been denied was a person against whom some charge was being made. It is elementary that, if a charge is being made against a person, he must be given a fair chance of meeting it. That often means he must be given documents necessary for the purpose. But there is no charge here made against Mr. Peach, the applicant, and to my mind, try as he will, he fails to get himself in through any of these three doors. For that reason I would refuse the application."

Counsel next referred to R. v. Southwark Coroner, Ex P. Hicks [1987] 2 All E.R. 140, 151 JP 441.

The applicant in those proceedings was the mother of a prisoner who died in Brixton Prison in March, 1985. What apparently concerned the family was an apparent misdiagnosis of an intracranial lesion. It appears that, at a preliminary hearing before formal inquest was commenced, counsel appearing for the family asked the coroner that all the medical records dealing with the treatment of the deceased in prison, and in particular the fourth night preceding his death, be made available to them. The request in question was refused. At pp. 142-143 of the report, Croom-Johnson L.J. stated, inter alia, as follows:

"It is clear that there is no right on the part of the family of the deceased to call for documents. In R. v Hammersmith Coroner, ex p Peach [1980] 2 All E.R. 7, [1980] Q.B. 211 an application had been made by the brother of the deceased to the coroner to be supplied with copies of the witness statement which had been taken by the police and furnished by them to the coroner. The coroner

refused. The brother sought an order of mandamus directing the coroner to do so, and also a declaration that the coroner was entitled to make such statements available to him and his legal advisers.

The Divisional Court held that the statements which had been taken by the police remained police property notwithstanding that they had given them to the coroner in the usual way in order to help him to conduct the inquest, and that the coroner had no right to disclose them to a third party such as the brother who was not himself the subject of any charge arising out of the death.

…

We have been asked by both parties to give general guidance on the matters arising from this case. It is necessary to deal with the production of documents, because the first ground on which the applicant seeks to impugn the verdict is that the coroner did not order the disclosure of the prison medical notes before the hearing. The second is that the coroner did not order the disclosure of the notes during the hearing.

It must be borne in mind that the primary purpose of an inquest nowadays is to establish the cause of death, not to impute blame whether criminal or civil. A coroner has himself no power to order the production of documents. His final right is to apply to the High Court for a subpoena duces tecum ordering their production, but normally that is not necessary. A request will be enough and the maker or custodian will either produce them or bring them to the hearing. The coroner may then decide to what extent they may be referred to. Questions may be asked about them.

If a party who may be held responsible for the death is present or is represented, fairness and r. 37(3) of the Coroners Rules 1984, require that he should see them. The introduction of documentary evidence is controlled by r. 37. It gives power to admit documentary evidence which is unlikely to be disputed, unless a person who may, in the opinion of the coroner, have caused or contributed to the death objects.

Other provisions of r.37 contain safeguards and restrictions on the use of documents. Subject to those rules, the coroner, who controls his own court, must decide the extent to which they are used and what questions may be asked about them.... The use of and reference to documents is therefore narrowly circumscribed."

Counsel before this Court submits that the Irish law must be seen in the constitutional framework. The Statute in question is a post-1937 Act of the Oireachtas and must be construed having regard to the Constitution. Counsel submits that the decision in R. v Hammersmith Coroner, ex p Peach [1980] Q.B. 211 does not apply in this jurisdiction. In this regard counsel refers to the judgment of Keane C.J. in Morris v. Dublin City Coroner [2000] 3 IR 592. Counsel refers to a portion of the judgment of Ó Dalaigh, C.J. in The State (Quinn) v. Ryan [1965] I.R. 70 at p. 122 of the report, where he stated, inter alia:

"It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary it follows that no one can with impunity set these rights at nought or circumvent them, and that the Courts' powers in this regard are as ample as the defence of the Constitution requires. Anyone who sets himself such a course is guilty of contempt of the Courts and is punishable accordingly."

Counsel submits that the form of the inquest is one to defend and vindicate the rights of the applicants and must involve a meaningful participation in a lawfully established tribunal.

Counsel refers to Eastern Health Board v. Farrell [2001] 4 I.R. 627 in which, under the heading 'The Applicable Law', Keane C.J., at pp. 636 and 637 of the report stated, inter alia, as follows:

"In my judgment in Farrell v. Attorney General [ 1998] 1 IR 203 at p. 223, I cited with approval the following description by Lane L.C.J. in R. v. South London Coroner, ex parte Thompson (The Times, 9th July, 1982) of the nature of an inquest:-

'It should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a criminal trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring which ever metaphor one chooses to use.'

Again, in that case, I referred to the public policy considerations underlying the requirement for the holding of an inquest as they were explained in England in the report of the Broderick Committee, i.e.:-

'I. to determine the medical cause of death;

II. to allay rumours or suspicion;

III. to draw attention to the existence of circumstances which, if unremedied, might lead to further deaths;

IV. to advance medical knowledge;

V. to preserve the legal interests of the deceased person's family, heirs or other interested parties.'

Ultimately, however, the issue for resolution in the High Court and again in this court is as to the proper construction to be given to the wording of s. 30 of the Act of 1962, i.e:-

'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.'

While this provision undoubtedly lays stress on the limited nature of the inquiry to be conducted at an inquest, the prohibition on any adjudication as to criminal or civil liability should not be construed in a manner which would unduly inhibit the inquiry. That would not be in accord with the public policy considerations relevant to the holding of an inquest to which I have referred. 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. The intention of the Oireachtas that the inquest should not simply take the form of a formal endorsement by the coroner or a jury of the pathologist's report on the postmortem is also made clear by s. 31 which, although prohibiting the inclusion in the verdict or any rider to it of any censure or exoneration of any person, goes on to provide in subs. 2 that:-

'notwithstanding anything contained in sub-section (1) of this section, recommendations of a general character designed to prevent further fatalities may be appended to the verdict at any inquest.'"

Counsel submits that the decisions in the cases of R. v Hammersmith Coroner, ex p Peach [1980] Q.B. 211 and R. v. Southwark Coroner, Ex P. Hicks [1987] 2 All E.R. 140, 151 JP 441 no longer represented the practice in England and were never the law in this jurisdiction. It is submitted that a proprietary interest could not apply in any event in instances where there was a waiver as in the instant case. Finally, counsel for the applicant refers to an extract from a textbook written by the respondent himself, dealing with the supply of documentation at inquests and, in particular, references in his text to the judgment of Widgery L.C.J. in Peach. However, at para. 12.09. he stated in his textbook as follows:

"While accepting that the circumstances of the death of Blair Peach were unusual and that the statements were taken for a particular purpose, it is submitted that in other cases where there is no criminal prosecution, statements taken preparatory to the inquest by members of the Garda Síochána (or coroner's officer) are under the control of the coroner rather than the garda authorities. It is further submitted that any draft depositions prepared by the coroner or his office using a previous statement made by a witness to the gardaí become the property of the coroner in preparing for the inquest. The deposition is only in draft form at that stage and will become a formal deposition only when the evidence is given viva voce by the witness at inquest with any amendments or additions and signed by the witness and the coroner."

At para. 12.10 he stated as follows:

"There are no authorities in Ireland in relation to the power of a coroner to provide statements to interested parties prior to inquest. As stated above, in the absence of any pending criminal proceedings in relation to a violent or unnatural death it is submitted that statements taken by members of the gardaí are under the control of the coroner as being the proper authority with jurisdiction in the matter. Draft depositions prepared by the coroner based on such statements are the property of the coroner and this is supported by the Northern Ireland cases.

The general rule in Ireland is that statements and draft depositions are not made available to properly interested persons or legal representatives prior to inquest. This rule is based on the inquisitorial nature of the proceedings at inquest but it is again submitted that the coroner has discretion in the matter. Difficulties sometimes arise in relation to deaths in prison or in hospital. Legal representatives on behalf of the next-of-kin may submit that counsel appearing on behalf of the prison or hospital concerned have full access to preliminary statements, medical reports and case notes prior to inquest and that the family ought to be given copies of documentation already available to other interested persons. Legal representatives will often make such submissions on the basis that they will be in a better position to 'assist the coroner in his inquiry' and on the basis of natural justice."

On behalf of the respondent it is submitted by Mr. John McMenamin S.C., that by the Act of 1962 the Oireachtas provides for an investigation employing a method that is proportionate, appropriate and practicable. Counsel refers to the provisions of ss. 29, 30 and 31 of the Act. Counsel indicates that the Act purports to vindicate the right to life. It is submitted that the inquiry is inquisitorial in nature with no parties, no prosecutor or defendant, no findings of liability and no censure or exoneration. Counsel refers to Farrell v. Attorney General [1998] 1 IR 203 and the passage is already quoted in this judgment, and further to the judgment of Keane C.J. in Eastern Health Board v. Farrell [2001] 4 I.R. 627 and in particular to the conclusions of the Chief Justice at pp. 643 and 644, and in particular that portion, in which it is stated, inter alia, as follows:

"If a coroner's inquest were to extend its inquiries beyond the circumstances, including the proximate medical cause of the death, in which the death occurred, it would become, in my view, an inquiry of a radically different nature and one which was not envisaged by the Oireachtas in enacting the Act of 1962. The holding of such an inquiry is not merely unwarranted, having regard to the restrictive terms in which s. 30 is couched: it is wholly at odds with the general policy underlying the legislation, as reflected in the definition of the circumstances in which a coroner is obliged or entitled to hold an inquest, the restrictions on his powers to summon medical witnesses and the limited financial resources available to him in conducting the inquest."

It is submitted by counsel that in the instant case the respondent applied such procedures as required by him to ensure fairness as where appropriate.

Counsel refers to Northern Area Health Board v. Geraghty [2001] 3 IR 321. In this case the respondent was the coroner for the County of Dublin and he decided to carry out an inquest into a death which occurred in a hospital managed and controlled by the applicant. He was contacted by the deceased's daughter who had concerns in relation to the circumstances in which her mother had died and as a result, he decided to hold an inquest for the purpose of allaying rumours and suspicions. During the course of the inquest two statements which had been prepared by the deceased's daughter were read to the court. The applicant had not been afforded the opportunity of seeing the statements prior to the inquest hearing. The coroner adjourned the proceedings when it became apparent that evidence of a nurse employed by the hospital would be required. It was held in this case by this Court (Kelly J.) that an inquest was purely an inquisitorial procedure; it was a fact finding exercise and not the method of apportioning guilt. He said that questions of civil or criminal liability should not be considered or investigated at an inquest and accordingly, every inquest should be confined to ascertaining the identity of the person in relation to whose death the inquest was being held and how, when and where the death occurred. He also indicated that the role of the coroner was not a rubber stamp of the views' expressed by a pathologist following a postmortem. He would have to have a certain amount of latitude and discretion, depending on the facts of each individual case, so as to bring about an investigation into the real and actual cause of death. Kelly J. held that an inquisitorial procedure whose verdict could not impose civil or criminal liability of any sort on any person, would not require the full panoply of natural justice requirements of disclosure and in either event, the applicant was neither prejudiced nor damnified by such alleged shortcomings. At the end of p. 334 of the report and at p. 335 of the report, Kelly J. stated as follows:

"The respondent points out that it is the practice of the coroner's court not to furnish statements of any of the witnesses to any party prior to the holding of the inquest. The police officer in charge of obtaining the statements obtains them and brings them to court on the day of the inquest to be read to the appropriate witness and duly signed. Each witness is entitled to add to the statement. He says that it has long been the practice of a coroner's court not to circulate statements prior to the holding of the inquest because persons may and indeed do change their statements or add to them at the inquest.

In essence the applicant contends that the rules of natural justice require that the statements of witnesses to be given at a coroner's inquest ought to be furnished in advance of the hearing to the interested parties. There was no case cited in support of this contention. Rather reference was made to general principles dealing with the rules of natural justice. But it is well settled that these rules do not apply in a vacuum. The necessity to disclose material prior to a hearing and the extent of such disclosure will very much depend upon the nature of such a hearing. I have already cited from the judgment of Keane J. in Farrell v. Attorney General [1998] 1 IR 203 where he in turn expressed approval for the views of Lord Lane L.C.J. in R. v. South London Coroner, ex party Thompson (1982) 126 S.J. 625. The Lord Chief Justice said:

'It should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a criminal trial, where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use.'

I would be slow to hold that an inquisitorial procedure whose verdict cannot impose civil or criminal liability of any sort on any person requires the full panoply of natural justice requirements of disclosure in advance of the hearing to be applied to it as would be the case, for example, in a criminal trial. However, it is not necessary for me to decide this question. The grant of a declaratory order such as is sought here is a discretionary one. Even if the applicant convinced me that the behaviour of the respondent and indeed the general practice of the the coroner's court was in breach of the requirements of natural justice, I would nonetheless refuse a declaration in this case. I do so because I am quite satisfied on the evidence that the applicant was neither prejudiced nor damnified by such alleged shortcomings."

Counsel refers to the fact that in the instant case the applicants withdrew from the inquest, notwithstanding the fact that the coroner indicated that he would proceed on and look at the matter again. On this basis counsel describes this as a situation where the applicants "walked off the pitch before the game commenced".

Counsel submits that in the instant case there has been no error of law on the part of the respondent and even if he was in error in so acting, he was acting within jurisdiction. Counsel submits that in the instant case if there was an error of law it did not go to jurisdiction. Counsel complains that in the instant case the applicants engaged in a premature withdrawal from the inquest and therefore cannot show that they have been prejudiced or damnified by the actions of the respondent. It is submitted, accordingly, that even if they were correct in the first instance with regard to the complaint made of the respondent, by walking out of the inquest they disentitled themselves to the relief which they seek and they cannot show prejudice. Counsel submits that in the instant case, having regard to the fact that the extent of the requirements of natural justice depends on the nature of the hearing and the fact that the applicants cannot demonstrate any prejudice to have been suffered, they should be refused the relief which they seek. Counsel refers to the fact that in the instant case the range of documents sought was very wide.

Counsel referred this Court to portions of the transcript of the hearing before the respondent. At p. 19 of the transcript he indicated that he would give his ruling in due course. This was before the jury had been sworn in. Counsel also referred to the fact that the coroner indicated in the course of the hearing, at p. 23 of the transcript, that relevant and material evidence would be adduced. He indicated that relevant and pertinent witnesses would be called. Counsel refers to the fact that depositions were furnished and that with regard to the remainder of the documentation it is submitted that it is for the applicants, on foot of the decision in Northern Area Health Board v. Geraghty, [2001] 3 IR 321 to show that they have been prejudiced or damnified by the non-disclosure of the documentation. It is submitted by counsel that the onus of proof lies on the applicants. Again, counsel uses a football metaphor when he says that it is not open and does not lie with the applicants to "take a dive in the penalty area and say I've been fouled". Counsel refers to the fact that a distinction must be drawn between the provisions of draft depositions and the abstaining from the furnishing of statements. It is submitted by counsel that the authorities, such as they are, are only persuasive, but in any event they support the way the coroner acted in the instant case.

Dealing with the waiver on the day, it is submitted that such waiver as was communicated by counsel was subject to the objection of the coroner. It is submitted that the public interest was in issue and that the proper administration and running of the coroner's court was in the hands of the respondent. Counsel refers in particular to the nature of the ruling given by the respondent. It is submitted that the course of action adopted was appropriate in the circumstances and, even if considered otherwise, it is impossible for the applicants to demonstrate any prejudice. It is submitted that if they had continued to participate in the inquiry that they might be in a position to demonstrate prejudice. This would depend upon their ability to show some clear situation such as the fact that the statements provided were at variance with the evidence. Counsel stresses the inquisitorial as opposed to the adversarial nature of the inquiry. It is submitted that this is the essence of the nature of the proceedings. It is submitted that the nature, of the documentation and the course of the proceedings is for the coroner rather than any other party to determine. It is indicated that 30 relevant witnesses were called arising from the production of 254 statements. Counsel refers to the fact that the matter arose before the coroner at a time when he had no prior intimation of the nature of the request.

Counsel refers to the fact that key issues are, firstly, the ownership of the garda file, secondly, the fact that there is no explicit power in the Act to provide such statements and thirdly, one has to contrast the garda title to the documents to those depositions prepared by the coroner. Counsel refers this Court to portions of the judgment in Morris v. Dublin City Coroner [2000] 3 IR 592 and Farrell v. Attorney General [1998] 1 IR 203 dealing with the role of the coroner and to the English decision in R. v. H. M. Coroner, ex p. Peach [1980] 1 Q.B. 211 case. It is submitted by counsel that a significant feature of the inquest is that, although of great public importance, it is necessarily limited and confined, a fact borne out by extremely limited resources available to a coroner holding an inquest. It is submitted that provided the coroner complies with the requirements of the Act of 1962 and observes the requirements of natural justice and fair procedures as they apply to an inquest, he is entitled to conduct the inquest in the manner which he thinks best adapted to serve the grounds of public interest.

Counsel refers to the fact, that while the coroner prepares for the inquest by considering which witnesses he wishes to summons, under the provisions of the Act of 1962, the coroner is not obliged to take depositions. In this regard reference is made to s. 28 of the Act. It is pointed out, however, that, as a matter of practice, depositions are usually taken at an inquest. To facilitate the efficient conduct of the inquest, draft depositions are normally prepared in advance. Although these may be based on preliminary statements made to the investigating garda any such statement is only indicative of the evidence a witness may give at an inquest. Furthermore, material contained in a preliminary statement may be irrelevant or inadmissible at the inquest. In drafting depositions the respondent must exclude any material which might include motive, liability or otherwise make a comment on the facts contrary to the statutory prohibitions of consideration of liability (whether civil or criminal) and of censure or exoneration of any persons.

Counsel submits that when considering the question of disclosure of documents in advance of an inquest a distinction must be drawn between documents which are the property of the coroner and documents belonging to third parties. It is submitted that any Book of Evidence, witness statements or similar materials prepared by An Garda Síochána in connection with criminal proceedings arising out of the death being investigated by the coroner remain police property.

Counsel points out that because an inquest is an inquiry and not litigation there is no process in the rules of court for interested persons to obtain relevant documentation in advance of the hearing and there is no procedure equivalent to discovery in civil litigation or disclosure in criminal proceedings. However, the Act of 1962 contains limited provisions giving interested persons access to certain documentation such as postmortem reports, depositions, notes of the names and addresses of witnesses taken at an inquest and a record of the verdict. Counsel submits that, by their nature, these documents will not be available before the inquest. Counsel refers to the respondent's practice as deposed to by him in his affidavit. It is submitted that in accordance with his practice the respondent provided the applicants' solicitor with a list of witnesses summoned to attend the inquest, together with copies of the draft witness deposition statements in advance of the inquest.

In the context of the applicability of the rules of natural justice to a coroner's inquest, counsel refers to The State (McKeown) v. Scully [1986] I.R. 524. In that particular case O'Hanlon J. held that "there was a departure from the rules of natural and constitutional justice in failing to give the widow and next of kin of the deceased any opportunity to be heard before the very grave and damaging finding (suicide) was made against the deceased husband of the prosecutrix." He continued:-

"Had such opportunity been given, they could reasonably have sought to be represented at the inquest; to have the witnesses cross-examined on their depositions; to address the jury; and to offer to make available to the coroner - further evidence which might be of assistance at the inquest."

Counsel points out that, in the absence of notification of the fact of the inquest, the question of disclosure did not arise in The State (McKeown) v. Scully [1986] I.R. 524. Counsel submits that it is of relevance that in the instant case the applicants' solicitors were furnished with draft depositions of witnesses summoned to give evidence. On this basis it is submitted that the applicants were on notice of the likely evidence of those witnesses, subject of course to the right of a witness to add to or otherwise amend the draft deposition. In the circumstances the requirements of natural justice as applied to inquisitorial proceedings were satisfied.

Dealing with the European Convention for the Protection of Human Rights and Fundamental Freedoms, counsel points out that although Ireland is a signatory to the Convention it takes a dualistic approach to its international obligations as a result of which the Convention is not part of Irish law. Equally, decisions of the Court of Human Rights are not binding on the Irish courts, nor are they of persuasive authority. Counsel addressed the alleged failure to comply with the procedural requirements under article 2 of the Convention. Counsel refers, inter alia, to Jordan v. United Kingdom (4^th May, 2001). It is submitted that the criticism of the inquest procedures in this and in other cases must be construed in light of their facts.

Counsel submits that the case of Jordan v. United Kingdom (4'^h May, 2001) and the other cases arising from inquests in Northern Ireland are not authority for the proposition that advanced disclosure is warranted in all cases. Counsel refers to McCann v. United Kingdom (1996) 21 EHRR 97, where the court held that an inquest was not necessarily invalidated by such a policy. What is required to ensure that fair procedures are adopted will depend on the facts of each case. It may be sufficient to allow the interested person's representative to read through the documents on the day of the hearing or to supply a list of witnesses containing an outline of what each will say.

Counsel submits that everything depends on the facts and that there is reasonable authority against the extension of the requirement to make advanced disclosure to cases where it is not necessary. Counsel refers to R. (Green) v. Police Complaints Authority [2002] EWCACiv 389, which concerned an investigation by the Police Complaints Authority into allegedly racist behaviour by a police officer resulting in personal injury, (though not death). The complainant sought disclosure of witness statements before the conclusion of the inquiry. The court of appeal held that the application should fail on substantive grounds. It is submitted, accordingly, that the cases are not authority for the proposition that a coroner is obliged or empowered to make disclosure of underlying documents forming part of the coroner's investigation but which, for what ever reason, the coroner has decided should be adduced in evidence.

It is submitted that to date it has not been the function of a Coroner's inquest to provide a forum for attempts to gather evidence for pending or future criminal or civil proceedings nor to identify individual fault on the part of those concerned. It is submitted that this position is not affected by article 2 of the Convention for the following reasons:- First, the investigation obligation does not require the investigation itself to make such a determination of whether the force used was justifiable. On the contrary, the European Court of Human Rights has expressly accepted that the Coroner's inquest found in common law jurisdictions is a fact finding exercise and not a method of apportioning guilt. (In this regard counsel refers to McCann v. United Kingdom (1996) 21 EHRR 97 at para. 162 and Jordan v. United Kingdom (4^th May, 2001) at para. 128 of the judgments of the court). It is submitted that it is sufficient that the findings of the inquest could lead to the referral of the case to the prosecuting authorities or cause the prosecuting authorities to reconsider an earlier decision not to prosecute. Secondly, the coroner's role in conducting an inquest is fundamentally different from the position of the State in complying with its obligations under article 2. Counsel submits that it is clear from the McCann and the Jordan cases that whether an inquest satisfies the State's obligation to conduct an investigation under article 2 will depend on the facts. Thirdly, it is submitted that because the Convention is an external obligation of the State, the Irish courts are not in a position to enforce it. It is submitted that the European Courts of Human Rights is the proper institution to enforce any alleged breach by the State of the applicants' rights arising out of the respondent's determination not to disclose the Book of Evidence.

In conclusion it is submitted:-

(a) That an inquisitorial procedure whose verdict could not impose civil or criminal liability of any sort on any person does not require the coroner to disclose documents gathered during the course of his investigation, which the coroner decides not to adduce in evidence.

(b) Any entitlement the applicants may have to disclosure of documents in advance of the inquest is limited to documents prepared by, and the property of the respondent; there is no entitlement to advance disclosure of documents which is the property of a third party, in this case the Book of Evidence prepared by An Garda Síochána in respect of criminal proceedings arising out of the death of John Morris.

(c) Having been provided in advance of the inquest with draft depositions, the applicants were in a position to participate effectively in the inquest and in particular to effectively cross-examine witnesses.

(d) The documentation sought should not be furnished as it is required only for the purposes of establishing civil or criminal liability in relation to the death of the applicants' son contrary to the express provisions of the Act of 1962.

(e) The applicants were not prejudiced by any alleged shortcomings in the inquest arising out of the coroner's decision not to release the Book of Evidence to them.

(f) It is for the coroner to decide how best to allocate his limited resources between the various inquests with which he has to deal. Provided that he has made reasonable and appropriate efforts to obtain the information and evidence which he reasonably considers is needed for the inquest in question, it is for the coroner to decide what evidence is relevant and admissible. As one of the public policy considerations underlying the holding of an inquest is the laying to rest of rumours and suspicion arising from an unexplained death, it is extremely undesirable that an inquest should be adjourned for any longer period than is strictly necessary. Adjournments may arise in certain circumstances and are required by virtue of s. 25 of the Act of 1962, where criminal proceedings are being instituted or considered. Aside from these circumstances it is submitted that the legislature envisaged that an inquest would be held as expeditiously as possible. Having regard to all the circumstances of the case, including the fact that draft depositions had been furnished to interested parties in advance and that the inquest itself had initially been opened on 16^th July, 1997, the coroner was entitled to proceed with the inquest when it resumed on 27^th June, 2001.

Conclusions

In the first instance I am satisfied that the respondent was not entitled to rely upon the ownership of the documentation in question as a ground of refusing the furnishing of same, insofar as it was intimated by counsel for the Attorney General, the Garda Commissioner and other members of An Garda Síochána that they were waiving any claim to privilege or confidentiality and it is clear that no attempt was made to restrict the right of the respondent with regard to the disclosure of the documentation in question by reference to the ownership of same. Indeed, on this application the documents in the 'Book of Evidence' were adduced in evidence by the respondent.

In these circumstances it is unnecessary to decide whether the law as stated in Reg. v. HM Coroner, ex p. Peach [1980] 1 Q.B. 211 and R. v. Southwark Coroner, Ex P. Hicks

[1987] 2 All ER 140, 151 JP 441 represent a correct statement of the legal position in this jurisdiction. However, it is clear that the practice referred to in Peach is similar to that followed in this jurisdiction as illustrated by the affidavit of the respondent.

However, it is necessary to determine whether there was an obligation on the part of the respondent to furnish the documentation in question to the applicants at the time of the inquest. One has to bear in mind the fact that an inquest is not a lis inter partes. The judgment of Keane J. in Farrell v. Attorney General [1998] 1 IR 203 clearly illustrates this fact. The further judgment of Keane C.J. in Eastern Health Board v. Farrell [2001] 4 I.R. 627 insofar as indicates the limits of the enquiry to be conducted by the coroner must also be borne in mind.

I also have the assistance of the judgment of Kelly J. in Northern Area Health Board v. Geraghty [2001] 3 IR 321 where he held that an inquisitorial procedure whose verdict could not impose civil or criminal liability of any sort on any person, would not require the full panoply of natural justice requirements of disclosure and in either event, the applicant was neither prejudiced nor damnified by such alleged shortcomings.

In the instant case the applicants and their legal representatives withdrew from the inquest at a time when the respondent indicated that he was prepared to look at matters afresh.

The respondent has indicated that he did not have the map and photographs requested of him prior to the inquest. Clearly if any map and photographs were produced to him at the time of the inquest he could consider furnishing same to the applicants.

I am satisfied that the submission of counsel for the respondents to the effect that the applicants engaged in a premature withdrawal from the inquest and cannot accordingly show that they have been prejudiced or damnified by the actions of the respondent is correct.

The respondent, having obtained the Book of Evidence from An Garda Síochána, went through it and decided what witnesses were relevant to the terms of his inquiry. It has not been demonstrated that in so acting he erred in any respect. He did not purport to indicate that these were the only witnesses whose evidence he would entertain. It is clear that had he engaged in the exercise of collecting statements himself rather than leave same to the gardaí to assemble, he would have had to engage in much the same exercise.

It is clear that certain of the documentation furnished by the respondent to the applicants was furnished very late in the day. In particular, this relates to the full report of the State pathologist, Dr. Harbison. In his affidavit he acknowledges this fact and I must assume that he was prepared to act in a fair manner in the conduct of his inquiry by giving to the applicants sufficient time to consider this report.

The applicants have not established to my satisfaction that the failure to furnish the documentation sought at the time of the inquest, which has subsequently been furnished in the context of these proceedings, has resulted in a failure to carry out an effective, fair and independent investigation into the death of the applicants' son and represents accordingly a failure to vindicate his right to life.

I am satisfied that, insofar as the inquest was not an adversarial contest and was not a lis inter partes, the mere fact that the Garda Commissioner and individual gardaí had access to the documentation in question is irrelevant to the issues before this court.

With regard to the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms, while it is the case that at no time relevant to these proceedings did it form part of the domestic law of the State, I am satisfied that I can have regard to the jurisprudence of the European Court of Human Rights insofar as it may assist this court in examining the issues before this court in the context of Irish law, in particular, the Constitution. I am satisfied that the provisions of article 2 of the Convention dealing with the right to life afford no greater protection than the provisions of the Irish Constitution in Article 40.3.2., which arguably provide an even greater protection to the right to life. On this basis I am prepared to accept as representative of the state of law in this jurisdiction, the observations of the European Court of Human Rights in the cases cited to me and in particular in Hugh Jordan v. United Kingdom (4^th May, 2001). I am satisfied that the question must be asked whether the failure to furnish the documentation in question in this case can be said to have resulted in a situation where the applicants have been deprived of "materials necessary to examine the facts". I am satisfied that the applicants have failed to establish such a situation in this case and I am satisfied in the circumstances that no breach of the constitutional protection of the applicants' rights has resulted from the conduct complained of in this case.

In all the circumstances, I am satisfied that the applicants have failed to establish grounds warranting the quashing of the verdict of the jury in the inquest in this case. In light of this fact, notwithstanding my finding with regard to the basis upon which the respondent refused to furnish documentation at the inquest, I do not consider it necessary to make any formal declaratory order in the terms of the first relief sought by the applicants.

Approved: Aindrias Ó Caoimh