A decision by the Dublin City Coroner to allow gardai to testify behind screens at the inquest into the death of a man during a shooting incident was overturned by the High Court yesterday.
While anonymity may be necessary for national or personal security reasons, coroners had no such power, and it was for the legislature, not the courts, to remedy the situation, Mr Justice Kinlen said.
John Morris (27), of Sundale Close, Tallaght, Co Dublin, died in a shooting incident while attempting to rob a newspaper distributor's warehouse in Inchicore in June 1997.
He was given a military funeral by the INLA, during which mourners were told that he had been on "active service" at the time of his death and was engaged in a struggle against "British imperialism and Irish capitalism".
His parents, Anne and John Morris, took legal proceedings after the Dublin City Coroner agreed that gardai could testify behind screens at the inquest into his death.
When the inquest began in 1998, it was submitted for the gardai concerned that they should not be called to give evidence in person, as a threat to their safety had been made by the INLA.
It was also submitted that the threat had been made to RTE and that the gardai had serious concerns for their personal safety and for the safety of their families if they were required to give evidence in person at the inquest.
It was further argued that forensic reports on the Garda weapons used should not be admitted, as this would identify the garda(i) who fired the fatal shot(s).
Counsel for the family of Mr Morris opposed all these applications, arguing that an inquest was a public hearing and that the gardai should give evidence in person. They also argued for the inclusion of the forensic reports.
The Dublin City Coroner ruled in favour and Mr Justice Kinlen yesterday delivered his reserved judgment, upholding the challenge by Mr Morris's family to that ruling. The inquest was adjourned pending the outcome of the legal action.
The judge found that the coroner did not have the powers he purported to exercise.
He noted that it was submitted that the gardai concerned did not know who fired the fatal shots "and there were security considerations in their not so knowing".
He said the case was made that the gardai would give evidence to the jury and coroner from behind a screen, in the presence of the deceased man's lawyers, and be identified by letters. No one else would be allowed to know what they looked like and the letters would not be identified by a name or address to anyone, including the coroner.
The judge said the coroner had obviously given great consideration to the problems raised in the court. However, there was no suggestion that there was any question of national security being involved. It was very much a question of personal safety.
He referred to rule 17 of the British Coroners' Rules, which provides that an inquest shall be heard in public unless the coroner considers exclusion necessary in the interest of national security. The judge said that there was no equivalent to rule 17 in this jurisdiction.
The purpose of that rule was firstly to allow parties and members of the public to hear the evidence of the death and, secondly, to prevent members of the public from hearing evidence of matters affecting national security.
In this case, the coroner had quoted cases before other coroners in which gardai had been permitted to be identified by letters. However, the legal grounds for such procedures in this jurisdiction had not been questioned or tested.
Mr Justice Kinlen said it would certainly seem desirable that the request for anonymity should be investigated by the coroner. It was not for the gardai personally to claim it.
He continued: "The State can take the point before the coroner decides the matter on tested evidence. The coroner must take a note of the names and addresses of witnesses, or a deposition. In this jurisdiction, a deposition must normally identify who is the deponent.
"The coroner, in his cited affidavit, ruled that the gardai were material witnesses who must give evidence. There is no precedent, he admits, for anonymity. The Coroner's Court is a creature of statute under the Constitution and therefore English and Northern Ireland cases are not necessarily helpful.
"While anonymity may be found necessary for national or personal security reasons, the coroners have no such power, and it is for the legislature, not the courts, to remedy this lacuna. The courts are not allowed to seek a pragmatic solution."
Mr Justice Kinlen said that accordingly, the coroner must confine himself to the duties imposed by the Coroner's Act.
On the application of Mr Paul Carroll, instructed by Mr Greg O'Neill, of Brophys, solicitors, Mr Justice Kinlen granted orders overturning the coroner's decisions.