Woman can pursue challenge seeking fresh inquest into brother’s death

The High Court has granted permission to a woman allowing her to bring a challenge over the Attorney General’s refusal to direct a fresh inquest into the death of her brother who drowned in Dublin’s docklands more than 13 years ago.

John Kelly drowned at Britain Quay during the early hours of October 16th, 2008. His sister, Emma Kelly, sought a new inquest.

It followed a report in 2018 by retired High Court judge Daniel Herbert into the response of gardaí to emergency calls after Mr Kelly went into the water.

The retired judge criticised the garda response, labelling it “confused, inappropriate and inadequate”. He recommended “an urgent investigation” into the capacity of gardaí to respond correctly and effectively to emergency calls from the public.

Mr Kelly, aged 24, is thought to have gone into the water at 12.15 am and could be heard making repeated calls for help.

At about 12.28 am residents from nearby apartments called the gardaí who attended the scene some 15 minutes later.

Gardaí located Mr Kelly in the water about 12.55 am and he slipped under the surface three minutes later, shortly after emergency fire and river rescue services arrived on the scene.

An inquest in 2009 found Mr Kelly died due to misadventure. His family claims that hearing was flawed and, in light of Judge Herbert’s serious findings, a new inquest is required.

In January last year, Emma Kelly, from Dominic’s Park, Athy, Co Kildare, sought leave from the High Court to bring judicial review proceedings challenging the AG’s refusal to direct a new inquest.

The court directed that the application be made on notice to the AG and Ireland and a hearing followed.

Ms Kelly claimed the first inquest was void due to its failure to comply with the requirements of Article 2 (right to life) of the European Convention on Human Rights (ECHR). A refusal to grant a new inquest breached that right, it was claimed.

She argued there was a constitutional right to an investigation as a corollary of the right to life. She also claimed the Garda investigation was flawed.

The respondents opposed the application.

Ms Justice Niamh Hyland ruled Ms Kelly should be given leave to bring proceedings under some of her ECHR arguments.

However, she was not prepared to grant leave on grounds seeking an order that the AG order the holding of a new inquest.

She said this was not a relief a court would be entitled to grant even assuming the facts identified by Ms Kelly could be established.

The case will go to full hearing at a future date.