The High Court has granted Emma Kelly leave to challenge the Attorney General’s refusal to direct a fresh inquest into the 2008 drowning death of her brother, John Kelly. The court refused leave for one requested remedy: an order compelling the Attorney General to hold the inquest.
In a judgment delivered on 12 May 2022, Ms Justice Niamh Hyland said Ms Kelly had met the low threshold of showing an arguable case for judicial review. The ruling does not decide whether the original inquest or a later inquiry was legally inadequate, or whether a fresh inquest is required.
John Kelly died by drowning at Britain Quay, Dublin, on 16 October 2008. A 2009 inquest concluded that he died by misadventure; that conclusion was not challenged. The family later criticised the Garda response and investigation. A separate inquiry under section 42 of the Garda Síochána Act 2005 reported in 2018 that the Garda response on the night was “confused, inappropriate and inadequate”, while describing the subsequent investigation as “thorough and sufficient”. Ms Kelly’s challenge to that inquiry’s findings was abandoned.
In 2019, Ms Kelly asked the Attorney General to use section 24 of the Coroners Act 1962 to direct a new inquest. Her legal representatives argued that the original inquest and the section 42 inquiry had not met the requirements of Article 2 of the European Convention on Human Rights for an effective and independent investigation into alleged State failings affecting the right to life. They also advanced constitutional arguments.
The Attorney General declined the request in October 2020, after seeking observations from the former coroner. The decision letter said the 2009 inquest had not been shown to fail criteria including independence, family involvement, public scrutiny, promptness and effectiveness, and that no material had been identified to undermine the coroner’s views.
Justice Hyland said the leave application was not the stage to determine the disputed facts or finally interpret the relevant constitutional and Convention law. She noted that the Attorney General’s response appeared to assess the original inquest against the criteria raised by Ms Kelly, making the lawfulness of that assessment central to the challenge.
The court granted leave for all requested reliefs and grounds except the request for mandamus directing the Attorney General to order a new inquest. Justice Hyland said the decision to direct an inquest rests with the Attorney General. A court may review the legality of that decision and, if necessary, quash it and send it back for reconsideration, but cannot make the section 24 decision itself. Leave was granted for a related declaration concerning interpretation of the 1962 Act in light of Article 2 obligations.
Costs of the leave application were proposed to be reserved to the trial judge, subject to either side making submissions within seven days of receiving the order.