Doctor Brian Farrell, Dublin City Coroner (applicant)

v The Attorney General (respondent).

Judicial Review - Applicant conducted inquest with a jury - Attorney General directing a new, fresh or further inquest be held - Whether the powers of Attorney General to direct the holding of an inquest are limited under the Act - Coroners Act 1962 (No 9), sections 17, 24(1) and 30.

The High Court (before Mr Justice Smyth); judgment delivered 30 January 1997.

SECTION 24 of the Coroners Act 1962, which is an empowering or enabling section, confers on the Attorney General a limited discretionary power in limited circumstances to direct the holding of an inquest, not a "further" or a "fresh" or a "new" inquest. The Attorney General is not empowered to direct the holding of an inquest while there is extant a verdict from a concluded lawfully held inquest. Unless and until such is quashed, the Attorney General has no right to direct the holding of a new, fresh or further inquest.

The statute cannot have intended a situation of having two or more inquests with verdicts which could be either duplicitous or varying concerning "the identity of the person in relation to whose death the inquest was held and how, when and where the death occurred." Section 24 does not confer upon the Attorney General authority to direct any coroner to hold an inquest in relation to the death of any person into whose death an inquest had already been held so long as the inquest and the verdict therefrom remain unimpeached by appropriate legal process.

The High Court so held in ordering the respondent deliver up to the court for the purpose of quashing the decisions contained in the letters of 8 November 1994 and 2 December 1994 as purportedly gave directions pursuant to section 24 of the 1962 Act.

Brian McGovern SC and Gerard Hogan for the plaintiff Jose Finnegan SC and David Barniville for the respondent.

MR JUSTICE SMYTH said that this case concerned the extent of the powers of the Attorney General under the provisions of the 1962 Act. Section 24(1) provides:

"Where the Attorney General has reason believe that a person has died in circumstances which in his opinion make the holding of an inquest advisable he may direct any coroner (whether or not he the coroner who would ordinarily hold the inquest) to hold an inquest in relation to the death of that person, and that coroner shall proceed to hold an inquest in accordance with the provisions of this Act (and as if, not being the coroner who would ordinarily hold the inquest, he were such coroner) whether or not he or any other coroner has viewed the body, made any inquiry, held any inquest in relation to or done any other act in connection with the death."

The applicant sought and obtained leave to bring these proceedings by way of judicial review for both certiorari and declaration.

Mr Justice Smyth said that in December 1992, the applicant conducted an inquest with a jury into the death of one Thomas Doherty under the provisions of the Act of 1962. Mr Doherty had died suddenly when undergoing a routine operation at St Vincent's Hospital, Dublin. The widow of the deceased was represented by her solicitor at the inquest hearing. At the direction of the applicant, an autopsy had been carried out on 2 July 1992 by Doctor AlSadar who had noted his conclusions and cause of death:

"As there was no (1) demonstrable gross or microscopic cause of death at autopsy, and (2) given the documented history of allegery to Penicillin, (3)1 formed the opinion that death was probably due to circulatory failure from anaphylaxis to augmentin."

Mr Justice Smyth was satisfied that paragraph 4 of the applicant's affidavit grounding the proceedings correctly set the framework in which events had taken place. Paragraph 4 stated that the central issue before the inquest was whether the deceased had died as a result of the administration of a test dose of augment in (penicillin) or whether the death was attributable to some other cause. Five senior medical witnesses from the hospital gave evidence the cumulative effect of which was as follows:

(a) The medical evidence did not conclusively prove that an anaphylactic reaction to augmentin had occurred. It was stated that only a test dose of that drug had been given and that the patient had shown no signs of an allergic reaction such as bronchospasm or skin rash.

(b) While an allergic reaction was possible, the medical evidence was to the effect that this did not cause the death. If such a reaction had occurred, it occurred in a setting where the patient was anaesthetised and ventilated and appropriate drugs had been given to counteract the cardiac arrest. This strongly suggested that some other factor caused or strongly contributed to the death. This other factor emerged during the evidence from a pathologist who found moderately severe degree of coronary arterial disease with a significantly enlarged heart with evidence of aortic valvular disease.

The widow also gave evidence which specifically confirmed to the coroner and the jury that her late husband had been allergic to penicillin. At the commencement of the inquest, the widow's solicitor was made aware of case notes land records and he extracted some information and obtained copies of documentation requested by him at the hearing. Various medical witnesses (including the pathologist) gave evidence at the hearing. As there was some disagreement between various medical witnesses as to the possible or probable cause of death being related to the administration of a trial dose of antibiotic during the operation, the applicant very properly gave Mrs Doherty an opportunity to give evidence to the jury regarding her husband's history relating to his allergy to penicillin. Her solicitor cross examined each of the witnesses who gave evidence in the course of the inquest.

In the course of the summing up to the jury, the applicant drew attention to the medical evidence, the disagreement by the medical witnesses and, in particular, Mrs Doherty's evidence of her husband's allergy to penicillin. The verdict of the jury given on the 4 December 1992 was that Mr Doherty died on 1 July 1992 in St Vincent's Hospital, Elm Park, Dublin 4, from acute cardiac failure and pulmonary oedema and that this was due to an episode of hypertension possibly due to an anaphylactic reaction to augmentin combined with severe coronary arterial disease and hypersensitive cardiac disease. Death was in accordance with the medical evidence insofar as that evidence assisted in determining the cause of death.

Mr Justice Smyth said that the applicant was of opinion that the verdict reflected the evidence given at the inquest and so recorded it in correspondence approximately one and a half years later. At that time, the respondent was writing to the applicant concerning the conduct of the inquest. The respondent, in the correspondence exchanged in the second half of the year 1994, expressed the view that dissatisfaction concerning the inquest had arisen. He wrote that from the fact that evidence relating to hospital records of the deceased's allergy to penicillin (which would appear not to have been taken into account before the deceased was administered a test dose (penicillin) during pre operation procedures during which he suddenly died) was not disclosed to the jury. Such evidence was disclosed in the autopsy report of which the applicant had possession some months prior to the inquest.

Mr Justice Smyth said that it was clear from the correspondence that, as of 20 July 1994, the respondent as then advised did not consider that a further inquest was necessary. Correspondence later in July 1994 from Mrs Doherty expressed the view "that the only way I will have my complaint addressed is in the public arena (the media)". The respondent, by manuscript note of 28 July 1994 noted that he did not feel Mrs Doherty could be assisted further.

By September 1994, it was clear that Mrs Doherty was interesting herself with inquests elsewhere in the country and contemplating joining with other families in making a demand on the Minister for Justice. Mrs Doherty had canvassed the support of some politicians who were also writing to the respondent on the matter. Notwithstanding that there was no change of circumstances between 20128 July 1994 and 4 November 1994 and 2 December 1994, nevertheless, the respondent decided a "new" or "fresh" or "further" inquest should be held and he directed pursuant to the Act of 1962 Doctor Cusack, deputy coroner, to hold that new, fresh or further inquest.

The matter came before Mr Justice Murphy in the High Court on 11 July 1995 and proceeded from there to the Supreme Court whose order dated 30 July 1996 remitted the matter to the High Court for a new hearing and by consent of the parties permitted or directed that the applicant's ground of his application be amended by adding thereto the following ground, viz that section 24(1) of the 1962 Act did not confer upon the Attorney General authority to direct any coroner to hold an inquest in relation to the death of any person into whose death an inquest had already been held.

Mr Justice Smyth said that the Act of 1962 was an act to amend and consolidate the law relating to coroners and to coroners inquests. It contains an express prohibition of consideration of civil and criminal liability and provides that every inquest shall be confined to ascertaining the identity of the person in relation to whose death the inquest is being held and how, when and where the death occurred. The confining nature of that section has been considered by the Supreme Court in Greene v McLoughlin (unreported 25 January 1995).

The original complaint by Mrs Doherty to the Attorney General concerned the verdict of the jury. She wished the word "possibly" to be deleted from the verdict rendered and signed. Apart altogether, from questions of jurisdiction to alter the form of expressions by the jury of its verdict, it could have the effect of altering the verdict in such a way as to denote if not expressly at least inferentially an element of civil liability. The verdict of the jury stood, it had not been quashed nor have proceedings been taken so to do. It was clear from the correspondence that Mrs Doherty considered that, because of certain elements of evidence which she considered relevant, the verdict should not have included the word "possibly".

She further alleged in correspondence that the jury did not hear the full evidence which the coroner had in his possession. In his judgment, Mr Justice Smyth said, this allegation was not only not sustained but, on the evidence, was not sustainable. It had to be remembered she was represented by a solicitor who crossexamined all witnesses. He did not swear any affidavit in these proceedings.

Mr Justice Smyth said that he had had the benefit of reading the ex tempore judgment of Mr Justice Murphy (unreported, 11 July 1995) and was in general agreement with his interpretation of the limitation of the right of the respondent to direct the holding of an inquest under the Act of 1962.

Mr Justice Smyth said that section 24 of the 1962 Act, which is an empowering or enabling section, confers on the Attorney General a limited discretionary power in limited circumstances to direct the holding of an inquest, not a "further" or a "fresh" or a "new" inquest.

The difficulty in the construction of the section, or more correctly the subsection, arises from the words "held any inquest in relation to or done any other act in connection with the death". In his view, the subsection did not empower the Attorney General to direct the holding of an inquest while there is extant a verdict from a concluded law fully held inquest. Unless and until such was quashed, the Attorney General; had no right or power to direct the holding of a new, fresh or further inquest.

Mr Justice Smyth held that the grounds upon which the applicant sought relief in the following respects were sustained by the following evidence:

(a) In December 1992, the applicant conducted an inquest into the death of one Thomas Doherty. The said inquest was conducted in accordance with law and, in particular the provisions of the 1962 Act.

(b) The exercise of the statutory power under section 24 by the respondent was unreasonable in law and ultra vires in that there were no circumstances in which the respondent herein could properly have concluded that the holding of a fresh inquest was necessary. The inquest held by the applicant was conducted in accordance with law and the requirement of the 1962 Act and the respondent had not advanced any reasons as would objectively justify the necessity to hold a fresh, further or new inquest, apart altogether from any questions of the entitlement and the limitations thereon so to do.

(c) The respondent appeared to take into account irrelevant considerations in that the stated reason for directing a fresh, new or further inquest arose inter alia, from the failure on the part of the applicant to disclose evidence to the jury concerning the nature of the deceased's allergy to penicillin, whereas the true position was that the said fact was expressly disclosed to the jury. The respondent's expressed dissatisfaction with the original inquest was, accordingly, not factually sustainable. Mr Justice Smyth was of the opinion that the absence of such documentation as was referred to in the correspondence did not in any way vitiate the correctness of the procedure followed by the coroner nor did he consider his explanation to be inadequate in the correspondence.

Mr Justice Smyth said that the applicant sought to rely on another ground to found relief, namely that the allegation that unfair procedures were followed in that Mrs Doherty's correspondence conducted with the Attorney General was not made fully and adequately known to him so; as to enable him to reply in detail thereto. Mr Justice Smyth did not think that this ground could be sustained as he believed that the information transmitted by the Attorney General to the applicant was sufficient to enable him to make such responses as he considered appropriate. It would be, in his view, undesirable that the Court should lay down details of the manner in which, if and when an inquiry is made of the Attorney General, he ought to deal with it. This was not to say that in a particular case such a ground as had been advanced by the applicant might not be appropriate.

Mr Justice Smyth therefore ordered that the respondent deliver up to the Court for the purpose of quashing the decisions contained in the letters of 8 November 1994 and 2 December 1994 as purportedly giving directions pursuant to section 24 of the 1962 Act.

Solicitors: Arthur Cox (Dublin) for the applicant; Chief State Solicitor for the respondent.