A HIGH Court decision has cast doubt over whether the prosecution may proceed against a couple charged with unlawful killing by neglect of Co Wexford woman Evelyn Joel, who suffered from multiple sclerosis and died from alleged malnutrition.
Ms Joel’s daughter Eleanor, and Eleanor’s partner Jonathan Costen, have been charged with unlawful killing and reckless endangerment of Mrs Joel in allegedly failing to ensure she received nourishment and medical treatment.
However, their prosecution may be in doubt after the High Court granted an application by the HSE to quash a Circuit Court order requiring it to disclose documents related to a review of its care of Mrs Joel in the two years up to her death from alleged malnutrition in 2006.
The HSE had disclosed other documents relating to its care of Mrs Joel but opposed disclosing the review documents.
It said the review was incomplete having been suspended at the request of the Garda, pending the outcome of a Garda investigation into Mrs Joels’ death.
The review documents were sought by the couple on grounds that they were required to ensure a fair trial.
The Director of Public Prosecutions (DPP) agreed the material sought was potentially relevant to any defence that the alleged neglect of Mrs Joel was wholly or partially caused or contributed to by others.
The DPP also argued Circuit Court Judge Michael White had inherent jurisdiction to make his “common sense” order so as to ensure a fair trial. Judge White’s order required the review documents be provided to the DPP who would in turn pass them to the defence.
In his reserved judgment allowing the HSE’s challenge to that order, Mr Justice John Edwards ruled that because the HSE is a third party not involved in the criminal proceedings, the Circuit Court exceeded its jurisdiction in fashioning a “wholly novel” remedy by making an effective mandatory injunction directing the HSE to disclose material in its possession.
Although Judge White’s order was not an order for discovery, it was a mandatory order akin in some respects to an order for third party discovery in civil proceedings, Mr Justice Edwards said.
While Judge White was endeavouring to uphold both the State’s right to prosecute and the rights of Ms Joel and Mr Costen to a fair trial, he was not justified in fashioning a novel remedy to do so.
The judge said the case illustrated an “unsatisfactory lacuna” in the law and the need for a legal mechanism by which a third party in criminal proceedings, which has material potentially relevant to the defence in a criminal trial, can be compelled to disclose it, at least to the prosecuting authority.
In light of the constitutional separation of powers, addressing that lacuna was primarily a matter for the legislature, he said.
The proceedings arose after Evelyn Joel (59) died in hospital some days after her daughter and Mr Costen called an ambulance to take her to Wexford General Hospital from their home in Cluain Dara, Enniscorthy, Wexford. Mrs Joel was allegedly severely malnourished when she was admitted and died on January 7th, 2006.
The trial of the couple was due to take place last year but was adjourned pending the outcome of the HSE’s challenge to the order by Judge White of May 27th, 2008 directing the HSE to disclose to the DPP certain materials relating to the review but refused to direct disclosure of the draft report.
Mrs Joel was diagnosed in October 2000 as suffering from primary progressive MS. She had lived at a premises with her late husband’s brother until November 2004 when she went to stay with her daughter, Mr Costen and the couple’s three children in their home.
Mrs Joel lived there for some 13 months until her admission on January 1st, 2006 to Wexford General Hospital, allegedly in an extremely malnourished condition and suffering from neglect.
Two separate enquiries commenced after her death – a criminal investigation by the Garda and an “independent review” of the delivery and co-ordination of health and personal social services provided by the HSE to her in the two years to January 2006.
