|Magee -v- Farrell & ors|
| IESC 60|
Supreme Court Record Number:
High Court Record Number:
|2004 1481 p|
Date of Delivery:
Composition of Court:
|Murray C.J., Fennelly J., Finnegan J.|
|Allow And Set Aside|
Link to Judgment
Murray C.J., Fennelly J.
THE SUPREME COURT
Judgment of Mr Justice Finnegan delivered on the 28th day of July 2009
Paul Magee (“the deceased”) died on the 26th December 2002. He was nineteen years of age. He had been arrested by Gardai for public order offences at the home of a friend where he was displaying signs suggestive of paranoid delusions. He was taken to Kilmainham Garda Station where he was handcuffed and placed in a cell. Shortly afterwards he was found to be in an unconscious state. He was taken by ambulance to St. James’s Hospital where following attempts to resuscitate him he was pronounced dead. A post mortem was carried out by the Assistant State Pathologist, Dr. Marie Cassidy, on the 27th December 2002. Toxicological examination showed recent use of cocaine. Dr. Cassidy’s ultimate conclusion was that the death was consistent with cocaine related collapse. The respondent in paragraph 6 of the statement of claim pleads as follows:-
BRIAN FARRELL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL
The respondent’s concerns are amplified somewhat by the submissions made in this court. It is submitted that serious questions arise concerning the deceased’s death while in custody as to the treatment of the deceased and the speed with which medical intervention was sought. Underlying these concerns may be the circumstance that the deceased had a history of previous convictions including convictions for assaulting Gardai. Further the post-mortem examination showed widely scattered surface bruising and minor injuries without any significant internal trauma and which injuries could have occurred in a minor scuffle. These injuries would not normally be expected to cause or contribute to death especially as there was no evidence of any internal trauma of any significance.
An inquest was scheduled to commence on the 12th February 2004. The plaintiff sought legal representation in respect of the inquest but was advised that there was no publicly funded provision for legal aid for an inquest. The present proceedings were instituted and because of this the inquest has not yet taken place and no death certificate recording the cause of death has issued.
While the statement of claim prays several reliefs it was accepted by counsel for the parties before the High Court that the only issue was whether or not the plaintiff is entitled to the provision by the State of publicly funded legal representation at the inquest to be held into the death of the deceased. There was no oral evidence in the High Court the material circumstances having been agreed between the parties. It was accepted by the appellant that the plaintiff does not have the necessary financial means to secure appropriate legal representation at the inquest.
The learned trial judge found in favour of the respondent in the following terms:-
“Having regard to the fact that the coroner presides over the relevant inquest and his role is judicial in nature, that the inquest of itself is inquisitorial and that a jury will record a verdict, it appears reasonable to come to the conclusion, applying the rationale of Kelly J. in O’Donoghue v The Legal Aid Board and Lardner J. in Stevenson v Landy & Others and Kirwan v Minister for Justice, that, due to the unfortunate circumstances of the plaintiff in the present case and the fact that her son’s death occurred within a very short period of time of him becoming unconscious while in the custody of An Garda Siochána, fair procedures under the Constitution require that she be provided with legal aid for the purpose of being adequately represented at the forthcoming inquest into her son’s death.”
The order of the court required the second, third and fourth named defendants to provide publicly funded legal representation to the plaintiff in respect of the inquest. The first named respondent took no part in the proceedings in the High Court or in this court.
In the High Court the defendant’s case revolved around two issues namely:-
(a) Whether the State is in law required to provide the plaintiff with State publicly funded legal aid or assistance and so that she could attend at and participate in the inquest held into her son’s death.
(b) Whether in the circumstances of this case and insofar as they are known or ascertained at this point, an inquest commenced under and in accordance with the provisions of the Coroners Act 1962 satisfies the State’s duty to vindicate the right to life of the deceased and the State’s related or ancillary duty to provide an effective independent mode of investigation or inquiry into the circumstance of the deceased’s death.
Following discussion between the learned trial judge and counsel the respondent proceeded on the first issue only.
The Appellant’s Submission
If the respondent is entitled to legal aid that right must have its origin in the Constitution. The jurisprudence of the Supreme Court clearly limits an entitlement to legal aid. The entitlement which arises under Article 38 of the Constitution is limited to criminal proceedings; (1) The State (Heal) v Donoghue  I.R. 325, (2) The State (O) v Daly  I.R. 312. (3) K. Security and Kavanagh v Ireland & Ors, unreported, the High Court, 15th July 1977 Gannon J., (4) Condon v C.I.E., unreported, the High Court, 22nd November 1984, (5) M.C. v The Legal Aid Board  2 I.R. 43,(6) Corcoran v the Minister for Social Welfare  2 I.R. 175 and (7) Byrne v Scally, unreported, the High Court, October 2000 all make clear that the entitlement to legal aid recognised in The State (Healy) v Donoghue is limited to criminal proceedings and does not extend to proceedings before other tribunals. The cases at (3) to (7) above related respectively to (3) a Tribunal of Inquiry, (4) an Inquiry under the Railway Regulation Act 1871, (5) Civil Litigation, (6) A hearing before a Social Welfare Appeals Officer, and (7) Civil Proceedings against a Local Authority In Malocca v Disciplinary Tribunal, The High Court unreported, 16th December 2002, Carroll J. held that a solicitor was not entitled to legal aid in connection with proceedings before the Solicitors Disciplinary Tribunal. In McBrearty v Morris, unreported, the High Court, 13th May 2003, Peart J., it was held that the applicant was not entitled to legal aid in respect of his appearance as a witness before a Tribunal of Inquiry. In A.A. v the Medical Council the High Court, unreported, 28th April 2003, O Caoimh J., it was held the Medical Council was not required to provide legal aid to the applicant before the Fitness to Practice Committee of the Medical Council. The three decisions relied upon by the respondent before the High Court, O’Donoghue v The Legal Aid Board, Stevenson v Landy & Ors and Kirwan v Minister for Justice, turn on their own particular circumstances and do not support the respondent’s claim: further the decisions have not been approved of by the Supreme Court.
The Respondent’s Submissions
The respondent relies upon the three decisions of the High Court upon which the learned trial judge relied namely, Stevenson v Landy & Ors, unreported, the High Court, 10th February 1993, Lardner J., Kirwan v Minister for Justice, Ireland and the Attorney General  1 I.L.R.M. 444 and O’Donoghue vThe Legal Aid Board, the Minister for Justice, Equality and Law Reform, Ireland and the Attorney General  I.E.H.C. 413. I will deal in detail with each of these decisions hereafter.
In addition the respondent relies on The State (McKeown) v Scally  I.R. 524. It was there held that there had been a breach of the rules of natural and constitutional justice in the coroner failing to afford the next-of-kin of a deceased an opportunity of being heard and represented at an inquest. The verdict of the jury had been one of suicide. The learned High Court judge held that if such verdict was permissible there was a departure from the rules of natural and constitutional justice in failing to give the widow and next-of-kin an opportunity to be heard before “this very grave and damaging finding was made against the deceased”. Had such opportunity been given the widow and next-of-kin could reasonably have sought leave to be represented at the inquest, to have the witnesses cross-examined on their depositions, to address the jury and to make available to the coroner further evidence which might be of assistance at the inquest. The respondent had the identical rights in this case but due to impecuniosity is unable fully and effectively to avail of the same by retaining legal assistance. The denial of State funding constitutes, it is submitted, a breach of the constitutional right to life of the deceased and a breach of a right to fair procedures and the right of access to an effective remedy of the respondent.
The State (Healy) v Donoghue was concerned exclusively with the criminal jurisdiction of the courts and requires that no person shall be tried on any criminal charge save in due course of law. Article 38 makes it mandatory that every criminal trial should be conducted in accordance with the concept of justice, that the procedures applied shall be fair, and that the person accused will be accorded every opportunity to defend himself and this entails the provision by the State of legal aid. O’Higgins C.J. at page 350 said:-
“However, criminal charges vary in seriousness. There are thousands of trivial charges prosecuted in the District Courts throughout the State every day. In respect of all these there must be fairness and fair procedures, but there may be other cases in which more is required and where justice may be a more exacting task master. The requirements of fairness and of 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 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.”
Again at page 353 Henchy J. said:-
“When the Constitution states that ‘no person shall be tried on any criminal charge save in due course of law’ – (Article 38 s.1.), that ‘the State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen’ – (Article 40. s.3 sub.s.1), that ‘the State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen’ – Article 40 s.3 sub.s 2) and that ‘no citizen shall be deprived of his personal liberty save in accordance with law’ – Article 40, s.4 sub.s.1), it necessarily implies, the very least, a guarantee that a citizen shall not be deprived of his liberty as a result of a criminal trial conducted in a manner or in circumstances, calculated to shut him out from a reasonable opportunity of establishing his innocence; or, where guilt has been established or admitted, of receiving a sentence appropriate to his degree of guilt and his relevant circumstances.”
The Criminal Justice (Legal Aid) Act 1962 section 2 sub section 1 is the Legislature’s implementation of the constitutional safeguard for the personal liberty of poor persons who are charged with criminal offences.
Kenny J. at page 363 said:-
“Legal assistance is often a requisite to the very existence of a fair trial on a serious criminal charge.”
K. Security & Anor v Ireland & Ors concerned a Tribunal of Inquiry set up pursuant to the Tribunals of Inquiry (Evidence) Act 1921. The Tribunal authorised the plaintiffs to be represented before it by solicitor and counsel and the plaintiffs sought a declaration that their costs in respect of their representation should be paid out of public funds. Inter alia the plaintiffs claimed an entitlement to costs by virtue of Article 40.3 of the Constitution on the basis of their good name, reputation, business connection and property rights being in issue. Gannon J. held that the position of the plaintiffs was not analogous to that of a person charged with a criminal offence. He dealt with The State (Healy) v Donoghue as follows:-
“All the judgments delivered in the Supreme Court on that appeal lay emphasis on the constitutional duty of a court undertaking the trial of a person charged with a criminal offence to be vigilant to ensure that the trial is in all respects fair and just. The several judgments gave substantial guidance as to the standards of fairness under the predominant concept of justice to be observed in relation to the particular circumstances of the person appearing before the court. But none of the judgments go so far as to declare that every person charged with a criminal offence has a constitutional right to have the expense of his defence paid out of State funds.”
He held the applicant not to be entitled to State funded legal aid.
In Condon v Coras Iompair Éireann & Ors the plaintiff sought to have his costs in connection with an inquiry under the Railway Regulation Act 1871 discharged by the State upon the basis that he was in the position of a party accused in connection with a railway accident and that legal representation was required to vindicate his good name and property rights pursuant to Article 40 section 3 of the Constitution. It was argued that unlike the plaintiffs in K. Security & Anor v Ireland & Ors the plaintiff here was not just a witness but rather in the position of a party. It was held by Barrington J. that The State (Healy) v Donoghue did not contemplate a case such as this.
In M.C. v The Legal Aid Board & Ors, the applicant was a separated woman with one child who had been served with nullity proceedings and she applied to the Legal Aid Board for legal aid. There was delay on the part of the Board and she instituted proceedings seeking mandamus directing the Board to consider and decide upon her application for legal aid and sought damages. The Legal Aid Board submitted that the delay was due to the State’s default in providing adequate funds. The State defendants, it was held by Gannon J., owed no duty personally to the applicant by virtue of her being a party to civil litigation. In the course of his judgment at page 55 Gannon J. said:-
“The proceeding by way of petition is the invocation of the jurisdiction of the courts administering justice to resolve that private civil dispute in accordance with law. The existence of that private civil dispute does not confer any duty on the State nor on any of the respondents to either of the parties thereto either under the Constitution or at law. A duty of administering justice and adjudicating by due process does not create any obligation on the State to intervene in any private civil litigation so as to ensure that one party is as well equipped for their dispute as is the other. The fact that the existence of fundamental personal rights is expressly recognised by the Constitution does not impose on the State any duty to intervene in aid of a party involved in any private civil dispute in relation to any such personal rights. The temporary exigencies or circumstances special to a particular individual cannot afford a ground for drawing the State into a civil dispute of a private nature…I am not convinced that there is any provision in the Constitution which imposes a duty on the State to provide any form of support for civil litigation among citizens. In the absence of such duty I can find no express or implied right in any citizen to require the State to provide financial support for, or to afford free facilities for, civil litigation of a dispute with another citizen.”
The foregoing decisions are consistent. There is a constitutional right to State funded legal aid when facing a criminal charge with serious consequences and certainly where there is the possibility of loss of liberty. The right has not been extended to proceedings other than in the Criminal Courts. Merely because a constitutional right is in issue and there is a right to be heard and to be legally represented it does not follow that there is an obligation on the State to fund legal representation. However the decisions of the High Court relied upon by the respondent and upon which the learned trial judge based his decision extend the right to State funded legal representation beyond that envisaged in The State (Healy) v Donoghue and I now propose to look in some detail at those decisions.
The first decision in point of time is Stevenson v Landy & Ors. The respondent sought legal aid in respect of pending wardship proceedings taken against her by the Eastern Health Board and concerning her infant son and seeking the taking of the son into wardship and to have a guardian of his person appointed. Under the Scheme of Civil Legal Aid and Advice of which the applicant sought to avail paragraph 3.2.3.(4) required an applicant for legal aid to make a case which warrants the conclusion that he is likely to be successful in the proceedings assuming that the facts put forward in relation to the proceedings are proved before the court. The applicant contended that in the case of wardship proceedings it is only necessary for the Certifying Committee and Appeals Committee to know that the proceedings are of a wardship nature. Reliance was placed on Forest v The Legal Aid Board & Ors, the High Court, 4th December 1992. That submission was rejected. However the learned High Court judge held that the requirement of a likelihood of success is not appropriate to wardship proceedings in which the overriding principle to be applied is the welfare of the child. Rather, he held, the appropriate test is whether the applicant for legal aid has a worthwhile contribution to make to the hearing of the case. The learned trial judge cited with approval from the judgment of O’Hanlon J. in Forest v The Legal Aid Board & Ors and in particular the following passage:-
“I am of opinion that proceedings under the Judicial Separation and Family Law Reform Act 1989 and other proceedings having to do with the welfare of children of a marriage, are in a completely different category from conventional disputes between litigating parties which have to be resolved by the courts.
In a sense it may be said that in matrimonial proceedings there are no winners and no losers. The husband and wife have reached the painful stage in their marital relationship where one or other or both of them have reached the stage where they can no longer tolerate the continuance of the relationship, and the court is called upon to decide whether the legal bond should be severed and if so, what consequences must follow for the partners to the marriage and for any dependant children of the union who are still under age.
I do not consider that one can speak of either party being ‘reasonably likely to be successful in the proceedings’ – yes, perhaps in the initial stages if one is seeking judicial separation and the other is resisting it, but not in relation to the ancillary orders which involve the court in the process of working out what arrangements will be reasonable or even necessary in the interests of each spouse and what should be done in the best interests of any children of the marriage below a certain age, putting the children’s welfare ahead of the interests of both spouses at that stage.
In relation to these matters, and particularly in relation to questions as to the custody, access to and maintenance of infant children, once it is established that one or other or both spouses have not the means to be legally represented before the court it would only be in wholly exceptional circumstances which I cannot now envisage, and which do not, in my opinion exists in the present case that legal aid could be denied in reliance on the matters referred to in paragraphs 3.2.3.(2), 3.2.3(4), or 3.2.3.(6) of the scheme.”
Thus without reference to constitutional rights O’Hanlon J. construed the provisions of the scheme to which he referred.
In the course of his judgment Lardner J. went on to say:-
“Here there are wardship proceedings brought by the Eastern Health Board against the natural mother in respect of a child and the court is asked to make orders in relation to the future custody, residence, maintenance and welfare of the child and it is accepted that the mother, wishing to be heard in the wardship proceedings and applying for legal aid, has not the means to be legally represented. The Legal Aid Certifying Committee and the Appeals Committee on appeal should consider applications for legal aid in the light of the views which I have expressed above. It is in my view necessary that this should be done in order that the constitutional requirements of the court should administer justice with fairness be given efficacy.”
Lardner J. quashed the refusal of the Certifying Committee and the Appeals Committee and directed that the application be remitted to the Certifying Committee to reconsider it in the light of the views which he had expressed on the meaning of paragraph 3.2.3(4) of the scheme in its application to wardship proceedings..
Having carefully considered this judgment I am satisfied that it does not support a constitutional entitlement to State funded legal aid: the learned trial judge was concerned solely with the construction of the provisions of paragraph 3.2.3.(4) of the Scheme. However in the course of his judgment he had regard to the judgment of O’Higgins C.J. in The State (Healy) v Donoghue and expressed the view that while that concerned a criminal prosecution the judgment was applicable, mutatis mutandis to the wardship proceedings. Notwithstanding this, the decision, as that in Forest v The Legal Aid Board & Ors, is essentially based on the construction placed by the learned High Court judge on the particular provision of the Scheme insofar as it related to wardship proceedings. The judgment contains no constitutional analysis other than the statement that the construction of the scheme for which he found is more in accordance with the requirements of the Constitution in regard to the administration of justice. Insofar as the learned trial judge based his judgment on The State (Healy) v O’Donoghue he was, in my view, incorrect to do so.
Forest v The Legal Aid Board & Ors, unreported, the High Court, 4th December 1992, O’Hanlon J. concerned an application for legal aid by the applicant wife in respect of proceedings under the Judicial Separation and Family Law Reform Act 1989 taken against her by her husband. The husband had been granted custody on an interim basis of the couple’s daughter then aged fifteen years. The applicant was refused in the following terms:-
“6. Serious questions arise concerning the deceased’s death at a time when he was being kept in involuntary custody including questions as to the extent to which the State or its agents were responsible through gross negligence or otherwise for the death of the deceased. The plaintiff and the family of the deceased have not been kept adequately apprised of developments and/or informed of the results of investigations and/or consulted in the context of investigations. Moreover the plaintiff has not been advised of a cause of death.”
A second application was also refused this time in the following terms:-
“Your application for legal aid has been refused under paragraph 3.2.3.(4) of the Scheme, namely that you have not made a case for being granted a certificate which is such as to warrant the conclusion that you are likely to be successful in the proceedings.”
The applicant’s husband had applied for and been granted legal aid. The primary relief claimed was a judicial separation and the applicant herself wished to bring a similar application. However O’Hanlon J. listed the ancillary orders which might be made on the application including orders relating to custody and access under the Guardianship of Infants Act 1994 and in relation to any such order section 3 of the Act provides that the welfare of the infant shall be the first and paramount consideration. O’Hanlon J. then went on to say:-
“In this situation I am of opinion that proceedings under the Judicial Separation and Family Reform Act 1989, and other proceedings having to do with the welfare of children of a marriage, are in a completely different category from conventional disputes between litigating parties which have to be resolved by the courts.”
O’Hanlon J. then continued with the passage cited by Lardner J. in Stevenson v Landy & Ors and concluded as follows:-
“In relation to these matters, particularly in relation to questions as to custody, access to, and maintenance of infant children, once it is established that one or other or both spouses have not the means to be legally represented before the court, I think it would only be in a wholly exceptional circumstances which I cannot now envisage, and which do not, in my opinion, exist in the present case that legal aid could be denied in reliance on the matters referred to in paragraphs 3.2.3.(2), 3.2.3.(4), or 3,2,3,(6) of the Scheme of Civil Legal Aid and Advice,”
Thus this decision upon which Lardner J. relied is not in any way based on a constitutional entitlement to State funded legal aid but rather it is based on the inappropriateness of the grounds of refusal relied upon by the Legal Aid Board to wardship proceedings and a construction of the terms of the Scheme..
I am satisfied that there is no true analogy between custody proceedings and criminal proceedings to justify the extension of the principle in The State (Healy) v O’Donoghue to wardship proceedings. Procedurally there was historically this analogy between criminal proceedings in which the liberty of the individual was at issue and proceedings involving custody of children. Prior to the Guardianship of Infants Act 1964 custody of children was litigated by way of an application for Habeas Corpus: see cases listed in the Irish Digest 1939-1948 at columns 319 to 326 inclusive. However as a matter of substantive law I am satisfied that no valid analogy exists.
The circumstances in Thomas Kirwan v Minister for Justice & Others are as follows. The applicant was detained in the Central Mental Hospital pursuant to an order of the Central Criminal Court. After some years a consultant forensic psychiatrist in the Central Mental Hospital formed a view that the applicant might be a suitable candidate for release from detention. His solicitor applied to the Minister for a review of the applicant’s detention. He was informed that before the matter could be referred to the advisory committee set up by the Minister to deal with such reviews a detailed statement would be required from the solicitor setting out the grounds on which they were applying for their client’s release. The solicitor was of the view that the presentation of the case would require the assistance of an expert legal team and at least one expert medical witness. He was informed that there was no provision for legal aid to enable the applicant to obtain legal assistance. The applicant sought declaratory orders and an Order of Mandamus requiring the grant to him of legal aid. Having set out the facts of the case Lardner J. at page 449 continued as follows:-
“Your application for a legal aid certificate to defend your husband’s action has been refused on the grounds that having regard to all the circumstances of the case including the probable costs of taking or defending the proceedings measured against the likely benefit to the applicant it is not reasonable to grant it.”
In his judgment Lardner relied upon The State (Healy v Donoghue). He referred to The State (O) v Daly which he distinguished. As the decision of the committee would affect the liberty of the applicant he concluded that the applicant’s position is analogous to a defendant in a criminal trial. This being the case even if the decision is treated as extending the principle enunciated in The State (Healy) v Donoghue such extension could not represent a basis for the further extension to the circumstances of the respondent. The ratio of the decision is that the applicant’s liberty was in issue.
The facts in O’Donoghue v The Legal Aid Board & Ors, unreported, the High Court, 21st December 2004 Kelly J. were as follows. The plaintiff experienced a delay of twenty four months between contacting the Legal Aid Board for legal aid and ultimately obtaining an appointment with the Board’s solicitor. A further month elapsed before she was given a legal aid certificate. Arising from this she claimed that the Board was guilty of breaches of statutory duty and negligent. She failed in this claim by reason of a saver in section 5 of the Civil Legal Aid Act 1995 on the basis of the Board’s resources: the Board was exonerated. Against the other defendants the Minister for Justice, Equality and Law Reform, Ireland and the Attorney General the plaintiff claimed damages for infringement of constitutional rights and in particular her rights under Article 40.3 of the Constitution and her unspecified personal right recognised in Macauley v The Minister for Posts and Telegraphs  I.R. 345 which recognised a right to have recourse to the High Court to defend and vindicate a legal right. The learned trial judge accepted that the plaintiff had no realistic prospect of access to the courts without the assistance of a lawyer. He went on to consider both M.C. v The Legal Aid Board & Ors and Stevenson v Landy & Ors. In relation to the former he said:-
“Gannon J. held that an individual citizen did not have a constitutional right to require the State so provide financial support for civil litigation with another citizen. However, he went on to hold, once a legal aid scheme was in place, there is a constitutional duty on the State to ensure that it is administered fairly and fulfils its purpose.”
In relation to the latter he said:-
“He construed the scheme of civil legal aid and advice in a manner which he found to be more in accordance with the requirements of the Constitution and having regard to the administration of justice.”
I am satisfied that Kelly J. correctly stated the effect of these two decisions. Where a scheme of legal aid is in place, in the former case a non-statutory scheme and in the latter a statutory scheme, there is a constitutional duty on the State to ensure that it is administered fairly and fulfils its purpose. He adopted the approach of Lardner J. in Stevenson v Landy & Ors and concluded:-
“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 entitlement to such under the Act and the Regulations but was denied it for a period of twenty five 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.”
I am satisfied that the constitutional right identified by Kelly J. is the plaintiff’s right, in her circumstances, to have the statutory scheme for civil legal aid administered fairly and in such a way as to fulfil its purpose. He was not referring to a constitutional right to legal aid on the basis of her unspecified personal right of access to the courts under Article 40. This being the case I do not see the decision as lending support to the respondent’s claim in the present case.
None of the cases relied upon by the respondent support her claim to an entitlement under the Constitution to State funded legal aid beyond the circumstances identified in The State (Healy) v Donoghue: nor do they support an entitlement to State funded legal aid in connection with an inquest.
While the issue relating to the European Convention on Human Rights was not argued before the High Court, before this court the respondent in written submissions submitted that the jurisprudence of the European Court of Human Rights could inform the approach of this court to the issue of the entitlement of the respondent to legal representation funded by the State before the coroner. Reliance was placed on McCann & Ors v The United Kingdom  E.C.H.R. 31. That case concerned the killing of a number of I.R.A. members by security forces in Gibraltar. The applicants relied on Article 2.1. of the Convention and inter alia complained that the Gibraltar inquest did not provide an effective ex post facto procedure for establishing the facts surrounding the killing and among the shortcomings identified was the absence of legal aid. The applicants instituted civil proceedings in Northern Ireland but certificates were issued by the Secretary of State for Foreign and Commonwealth Affairs under the Crown Proceedings Act 1947 as amended by the Crown Proceedings (Northern Ireland) Order 1981 which exclude proceedings in Northern Ireland against the Crown of that nature and the proceedings were struck out. The European Court of Human Rights did not determine whether such civil proceedings, had they been permitted, would constitute an effective compliance with Article 2.1. of the Convention. In the present case it is open to the respondent to institute such proceedings and apply for legal aid in respect of the same. It is not suggested that such civil proceedings would be ineffective and it would be difficult to do so having regard to the availability of discovery, third party discovery and interrogatories and the availability of means to compel the attendance of witnesses. I do not find any assistance in this decision in determining the issue before the court.
The jurisprudence of this court in The State (Healy) v Donoghue is clear. A right to legal representation does not carry with it a right to State funded legal aid. Where, however, the liberty of the individual is in issue before the Criminal Courts there is an entitlement to State funded legal aid. The three decisions of the High Court relied upon by the respondent and by the learned trial judge in giving judgment for the respondent do not support a broad extension of the constitutional right recognised in The State (Healy) v Donoghue to every case in which fundamental personal rights under the Constitution are involved. There are very considerable differences between proceedings before a Coroner and criminal proceedings. An inquest is an inquisitorial process. It is a fact finding exercise and not a method of apportioning guilt or establishing civil liability At an inquest there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial: it is a process of investigation which attempts to establish facts surrounding a death. Questions of civil or criminal liability may not be considered nor investigated. It is not a forum for gathering evidence for pending or impending criminal or civil proceedings. This being so I am satisfied that there is no constitutional right in a person entitled to attend before and be represented at an inquest to State funded legal representation. I would not extend the constitutional entitlement recognised in The State (Healy) v Donoghue in the manner sought by the respondent.
I would allow appeal, set aside the order of the High Court and dismiss the plaintiff’s claim.
McGee v Farrell & Ors
“From these facts I draw certain conclusions. Firstly, from the time of the special verdict the applicant was held pursuant to statute. Secondly, the decision is of great importance for the public and for the applicant. The interest and safety of the public is or may be affected by it, as is or may be the liberty of the applicant. The decision on any such application terminates a procedure which in my judgment is executive in character as distinct from a judicial procedure. It was nonetheless a procedure which must comply with the constitutional requirement of fairness. It is well established that the requirement of fair procedures applies as well to administrative decisions as to judicial decisions. See O’Brien v Bord na Mona  I.R. 255. In my view, the terms of reference of the advisory committee which I have stated above express very well the question which, in the case of each application, the executive has to consider and determine and the scope of the material to be considered. The latter includes any information, material or submissions tendered by or on behalf of the applicant. In my judgment, an applicant who is without the requisite means to procure the collection of the relevant information and to formulate and present the appropriate submissions, with the information, to the committee is necessarily, as a matter of fairness, entitled to legal aid to enable him to do so.”