The High Court has ruled that the plaintiffs in a case arising from the 1974 Dublin and Monaghan bombings have no legally enforceable right under the Commission of Investigation Act 2004 to access the archive of the statutory Commission that examined the bombings.
In a judgment delivered on 9 September 2010, Miss Justice Laffoy also found that the plaintiffs’ complaints about how the Commission dealt with an inquiry lead were not justiciable under the European Convention on Human Rights Act 2003. The court’s determination covered preliminary issues only; it did not decide the underlying allegations about the investigations or the archive. The judge said she would hear further submissions on the precise form of order.
The plaintiffs were Derek Byrne, Margaret McNicholl and Justice for the Forgotten Limited. Byrne was seriously injured in the Parnell Street bombing. McNicholl is the sister of Mary McKenna, who was killed in the Talbot Street bombing. The company was established to support and advance the interests of people bereaved or injured in the bombings, in which 33 people died and almost 300 were injured.
The plaintiffs alleged that the Commission failed to report on a lead concerning a man who stayed at the Four Courts Hotel between 15 and 17 May 1974 and his contacts with the UVF. They also challenged the Commission’s failure to make public the legal difficulties it said prevented it from reporting on that lead. Separately, they alleged that refusing access to the Commission archive breached Convention rights.
The Commission’s archive was deposited with the Taoiseach when the Commission was dissolved. The judge interpreted section 11 of the 2004 Act alongside the rules governing records after a commission ends. She held that the statutory prohibition on disclosing evidence given in private bound the Taoiseach and remained in place for 30 years from the Commission’s dissolution. After that period, public access would depend on the process under the National Archives Act, including whether records were certified against public access. The court said the 2004 Act did not give the plaintiffs, or the public generally, a positive right to the evidence.
On the human rights issue, the judge held that the 2003 Act operated prospectively. Because the deaths occurred in 1974, the plaintiffs could not use that Act to bring domestic-law claims over the Commission’s later handling of matters relating to those deaths. The court did not determine whether the archive rules were compatible with the Convention, or whether the declarations sought could be granted; it held those questions did not arise after its ruling on the first issue.
The judgment recounted the history of State investigations, including the Barron Inquiry and the Commission established in 2005. The Commission completed its work in March 2007 and its report was published the following month.