The Court of Appeal has dismissed an appeal by Thomas Fox seeking to compel the establishment of two Commissions of Investigation into the murder of Seamus Ludlow in 1976. It affirmed the High Court’s decision refusing the requested relief.
Mr Fox, identified in the judgment as Mr Ludlow’s nephew, challenged the decision not to establish commissions recommended by an Oireachtas sub-committee. One proposed commission would examine the Garda investigation; the other would examine records created or maintained by State bodies and why some documents were unavailable.
The family’s concerns included that the original investigation was flawed and that information supplied by the RUC in 1979 was not followed up. The judgment records that a Minister’s 2015 letter described the failure to follow up that information as serious and regrettable and reiterated an apology to the family. A later Garda review was conducted, and the Irish and Northern Ireland Directors of Public Prosecutions directed that there should be no prosecutions.
The appeal challenged the High Court’s treatment of the family’s claims, including legitimate expectation, fairness, irrationality and Article 2 of the European Convention on Human Rights. The Court of Appeal agreed with the High Court that the Oireachtas committee recommendations and correspondence did not create a legitimate expectation that commissions would be established. It also held that the Minister’s refusal was understandable and justifiable in light of prior inquiries and investigations, the passage of time and the limited prospect of further progress.
On Article 2, the court held that the right relied on concerns an effective investigation capable of identifying and holding those responsible to account; it does not require an inquiry into the adequacy of earlier investigations or a process aimed at establishing historical truth. The court also noted that the European Convention on Human Rights Act 2003 was not retrospective.
The President said decisions on establishing Commissions of Investigation are entrusted by statute to the Executive and the Oireachtas, and that compelling their establishment would intrude on those functions. The court dismissed the appeal and affirmed the High Court decision. Edwards J and McCarthy J agreed. The ruling did not order either commission to be established.