High Court of Ireland Decisions

Judgment Title: Magee -v- Farrell & Ors

Neutral Citation: [2005] IEHC 388


High Court Record Number:

Date of Delivery: 26/10/2005

Court: High Court

Factual Background
The plaintiff is the mother and next of kin of the late Paul Magee (born 19/09/1983) who was taken into garda custody on 26th December, 2002. The late Paul Magee had been arrested by Gardaí for public order offences, at the home of a friend where he was displaying signs suggestive of paranoid delusions.

On arrival at Kilmainham Garda Station, he was placed, handcuffed, in a Garda cell where after a short period he was observed to be in an unconscious state. An ambulance was requested and CPR was performed by the Gardaí on duty. Shortly afterwards he was transferred to St James’ Hospital where, following attempts to resuscitate him, he was pronounced dead.

The plaintiff argues that several issues arise concerning the deceased’s death at a time when he was being kept in Garda custody including questions as to his treatment in custody and the extent to which the State or its agents were responsible through gross negligence or otherwise for the death of the deceased. The plaintiff claims that she has not been kept adequately informed of the circumstances surrounding her son’s death and she claims the full facts have not yet emerged.

A post-mortem was carried out by the Assistant State Pathologist Dr. Marie Cassidy on 27 December, 2002. Toxicological examination showed recent use of cocaine. Dr. Cassidy’s ultimate conclusion was that the death was consistent with cocaine related collapse.

An inquest was scheduled to commence on 12th February, 2004, but because of the institution of these proceedings that inquest has not yet taken place.

The plaintiff sought legal representation in respect of the inquest but was advised that there is no publicly funded provision for legal aid for inquests. For the purposes of adjudication of this case, the defendants accept that the plaintiff does not have the necessary financial means to secure appropriate legal representation at the inquest to represent her interest arising on her son’s death.

The plaintiff claims against each of the defendants for their failure and/or refusal to take appropriate steps to protect the right to life of the deceased through the provision of an effective independent judicial system to establish the cause of death which said failure and/or refusal constitutes a breach of Article 38 and/or Article 40.1 and/or Article 40.3 of the Constitution and/or Article 2 and/or Article 13 of the European Convention on Human Rights and she seeks a variety of reliefs including:

1. An order directing the provision of legal representation to her in respect of the inquest to be held into the death of her son, Paul;
2. An interlocutory order, if necessary restraining the conduct of an inquest pending a determination of the proceedings herein;

3. Further and/or in the alternative damages pursuant to section 3 of the European Convention on Human Rights Act, 2003 for breach of Convention rights and also damages for breach of constitutional rights;

4. A declaration that the right to life protected by Article 40.1 and /or Article 40.3 of the Constitution and/or Article 2 of European Convention on Human Rights requires the defendants or each of them to take appropriate steps to safeguard the lives of those within the jurisdiction through the provision of an effective independent judicial system to be set up so that the cause of death of individuals who die in state care and/or custody can be determined.

Relevance of the European Convention on Human Rights

The European Convention on Human Rights became part of domestic law through the European Convention on Human Rights Act, 2003 on 31 December, 2003. In the Supreme Court decision of Dublin City Council v. Fennell (Unreported, Supreme Court, 12 May, 2005), Kearns J. noted that the Act of 2003 does not purport to incorporate the Convention directly into domestic law:

“[R]ather [it] impose[d] an obligation that, when interpreting or applying any statutory provision or rule of law, a court shall, insofar as is possible, and subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions”.

“I am satisfied … that the 2003 Act cannot be seen as having retrospective effect or as affecting past events”

“is of [the] opinion that the death may have occurred in a violent or unnatural manner, or suddenly and from unknown causes or in a place or in circumstances which, under provisions in that behalf contained in any other enactment, require that an inquest should be held”. (Section 17)

“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.”

"The requirements of fairness and justice must be considered in relation to the seriousness of the charge brought against the person and the consequences involved for him. Where a man's liberty is at stake, or where he faces a very severe penalty which may affect his welfare or his livelihood, justice may require more than the application of normal and fair procedures in relation to his trial. Facing as he does, the power of the State which is his accuser, the person charged may be unable to defend himself adequately because of ignorance, lack of education, youth or other incapacity. In such circumstances his plight may require, if justice is to be done, that he should have legal assistance. In such circumstances, if he cannot provide such assistance by reason of lack of means, does justice under the Constitution also require that he be aided in his defence? In my view it does."

"That Statement was made in relation to a criminal prosecution. The present case is of a different nature. Having considered the circumstances of the Applicant and in which the application for legal aid to be represented in the wardship proceedings is made, I have come to the conclusion that the dicta which I have quoted are applicable, mutatis mutandis, to the wardship proceedings."

In Kirwan v. Minister for Justice [1994] 2 I.R. 417, Lardner J. ruled that an applicant who was being detained in the Central Mental Hospital was entitled to free legal aid in respect of his appearance before a committee established by the Minister for Justice whose task it was to advise on whether persons such as the applicant were fit to be released from detention. Lardner J. held that the constitutional requirement of fair procedures applied to applications for review of detention in this type of case and that this obliged the executive to provide legal aid to any applicant who was “without the requisite means to procure the collection of the relevant information and to formulate and present the appropriate submissions.”

In McBrearty v. Morris (Unreported, High Court, Peart J., 13 May, 2003), Peart J. stated that Stevenson and Kirwan had to be read in light of their particular facts and that it was not possible to extrapolate from them any principle of general application. He went on to hold that the plaintiff's constitutional right to fair procedures did not include the right to have legal representation at a public enquiry into allegations about some members of the Gardaí in Donegal funded or provided for by the State in advance of the Tribunal reaching its findings.

I take the view that the case of McBrearty v. Morris can be distinguished from the present case on the basis of the facts decided therein because if the plaintiff in the particular circumstances of that case cooperated fully with the relevant Tribunal, the probabilities are that his reasonable legal costs would have been provided for by the Tribunal and paid by the State. In effect, the plaintiff in those proceedings was seeking the payment of his legal costs in advance of any conclusion being reached by the Tribunal.

In the recent case of O’Donoghue v. Legal Aid Board (Unreported, High Court, Kelly J., 21 December, 2004), the plaintiff successfully sued the State arising out of a delay of 25 months in providing her with legal aid. The case came before the courts as a claim for damages arising from the delay in the delivery of legal aid and advice services which was claimed to be unreasonable and in breach of the plaintiff’s rights, including unremunerated rights under Articles 40.1 and 40.3 of the Constitution on the basis that the Constitution protected a right of access to the courts and a right to timely legal representation to vindicate that right of access.

In his judgment, Kelly J. accepted the arguments made by the Board. He agreed that the statutory obligation imposed on the Board by the Act was not an absolute one and that it was required to carry out its functions within its resources. He held that the delay in providing legal aid to plaintiff was caused exclusively by the lack of resources made available to the Board and that it was, therefore, not in breach of its statutory duty.

Kelly J did not accept the State’s arguments to the effect that there was no right to legal aid, finding that the plaintiff had rights which had not been vindicated. He reviewed the case law and stated at p. 44 of his judgment:

“Applying the approach of Lardner J. it seems to me that the unfortunate circumstances of the plaintiff in the present case are such that access to the courts and fair procedures under the Constitution would require that she be provided with legal aid. That view is reinforced by the fact that she fell squarely within the entitlements to such under the Act and the regulations but was denied it for a period of 25 months because of the manifest failure of the State. The delay in granting the certificate for legal aid, in my view, amounted to a breach of the constitutional entitlements of the plaintiff and if she can demonstrate loss as a result she is entitled to recover damages in respect thereof.”

Kelly J. at p. 45 of his judgment deals succinctly with the argument that the court is powerless to intervene regardless of the nature of the rights being asserted by the plaintiff whether it be statutory constitutional or a right under the European Convention on Human Rights. He states:-

I do not accept such to be the case. This case is not concerned with a claim for any form of mandatory relief against the State. The court is doing no more than what the courts have been doing since at least Ryan v. Attorney General namely, ensuring that a right under the Constitution is protected and given effect. As was stated by Keane C.J. in Sinnott v. Minister for Education at page 631:-

“That is not to say that where a plaintiff successfully claims that his constitutional rights have been violated by the State in the past and will continue to so violated in the future (which is not the case here) unless the court intervenes, the courts are impotent when it comes to the protection of those rights.”

Later in the judgment he said that while in principle there is nothing to preclude the granting of mandatory relief against a Minister to meet a constitutional obligation, the courts should “presume that where this court grants a declaration that he or she had failed to meet his or her constitutional obligations the Minister will take the appropriate steps to comply with the law as laid down by the courts.”

Role of Legal Representatives at Inquests

The role of legal representatives at inquests was referred to by O’Hanlon J. in State (McKeown) v. Scully [1986] I.R. 524. O’Hanlon J held that there was a departure from the rules of natural and constitutional justice in failing to give the widow and the next of kin of the deceased any opportunity to be heard before the very grave and damaging finding was made against the deceased husband of the prosecutrix.

He stated at p. 526 of his judgment:

“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.”

“This man was apparently arrested on 26 December 2002 at 4.45 a.m. He was taken to Kilmainham Garda Station and he was found collapsed in his cell a short time later. He was taken to hospital. Eventually he was taken to theatre, their concern being that he possibly had an intra-abdominal bleed. No abnormality was discovered at the operation. He did not recover in the hospital and died that day.

I a. Consistent with Cocaine related collapse”