Administrative Law - Role of Attorney General - Residual ju- risdiction of High Court - In- quest - Coroner's court - Non-attendance of witness - Role of coroner - Statutory interpretation - Service of witness summons - Whether witness obliged to attend inquest - Whether relevant statutory provisions inadequate - Whether witness guilty of contempt - Whether Attorney General em- powered to bring proceedings - Whether normal criteria for granting of interlocutory relief should apply - Coroners Act 1962, sections 26, 30, 37 and 38. The Supreme Court (The Chief Justice, Mr Justice Keane; Mr Justice Murray, Mrs Justice McGuinness, Mr Justice Hardiman , Mr Justice Geoghegan); judgment delivered 23 October 2000.
The Attorney General was a guardian of the rights of the public and had a role in bringing proceedings to the courts to enforce those rights to ensure that the law was observed. This was a function which was only to be exercised in exceptional circumstances. Where a witness refused to attend an inquest, the court should, where invited to do so by the Attorney General, exercise its residual jurisdiction and grant the particular relief sought. However it was for the coroner and the coroner alone to determine whether the attendance of a particular witness was necessary. In the instant case it was not entirely logical to apply the normal test regarding the granting of interlocutory relief as the granting of the relief in question would effectively dispose of the whole case.
The Supreme Court so held in determining that it had not been established by the plaintiff that the defendant was an essential witness at the inquest. Therefore this was an not an exceptional case to warrant the exercise of the residual jurisdiction of the courts in order to enforce compliance with the law and the relief sought by the Attorney General would be refused.
Gerard Hogan SC and James O'Callaghan BL for the plaintiff; Ciaran O'Loughlin SC and Mice al O'Connor BL for the defendant.
The Chief Justice, Mr Justice Keane, delivering judgment, outlined the facts of the case. The defendant was the widow of a man who had been fatally shot on 9 March 1996. The Dublin City Coroner, Dr Brian Farrell, began the inquest into the death on 3 July 1996 which was then adjourned to 27 November 1997. The defendant appeared at the resumed hearing having being warned by the Garda Siochana that she should do so. At the hearing the defendant contended that the statement which she had made had been dictated to her by the Garda. The defendant then began to give an abbreviated statement to the coroner, but this was objected to by a member of the Garda Siochana. At the request of Garda the coroner adjourned the inquest to 4 February 1998 in order to allow the seeking of legal advice.
A witness summons was then served on the defendant pursuant to section 26(1) of the Coroner's Act 1962 ("the 1962 Act") in order to secure her attendance at the resumed hearing. However, the defendant failed to attend the inquest on the resumed date and in addition failed to attend the inquest on three further dates, the inquest having being adjourned on each occasion due to her non-appearance. The last date on which the defendant failed to attend being 26 October 1999. At the same time various witnesses summonses had been served on the defendant which had not been complied with. The Chief State Solicitor, prior to the date of the last resumed hearing, had written to the defendant warning her that should she fail to attend the inquest on any further occasion the Attorney General intended issuing High Court proceedings seeking to compel her so to do. Following the most recent non-appearance the Attorney General then issued plenary proceedings seeking, inter alia: (a), a mandatory interlocutory injunction directing the defendant to comply with the provisions of the 1962 Act and attend as a witness at the adjourned hearing of the inquest on 17 February 2000; and (b) a mandatory injunction directing the defendant to comply with the provisions of the Coroner's Act 1962 and to attend as a witness at the inquest to be held on that date.
Mr Justice Keane stated that on 20 January 2000 the plaintiff issued a notice of motion seeking interlocutory relief directing the defendant to attend as a witness at the adjourned inquest. In the grounding affidavit sworn on behalf of the Chief State Solicitor it was made clear that relief was being sought in this form as it was considered that there no other effective method available to secure the attendance of the defendant. In the High Court Mr Justice Kelly granted the injunction sought and the defendant appealed.
Mr Justice Keane then referred to section 26(1) of the 1962 Act which provided that "A coroner may, at any time before the conclusion of an inquest held by him, cause a summons in the prescribed form to attend and give evidence at the inquest to be served on any person (including in particular any registered medical practitioner) whose evidence would, in the opinion of the coroner, be of assistance at the inquest." In addition, section 37 of the same Act provided that a person who fails to comply with such a summons would be guilty of an offence and liable on summary conviction to a fine not exceeding £5.00. Mr Justice Keane was of the opinion that this was a clearly inadequate sanction but then referred to section 38(2) of the 1962 Act which provided that a witness who appeared at an inquest and who failed inter alia to answer questions or "does any other thing which would, if the coroner had been a court having power to commit for contempt, have been contempt of that court" shall be guilty of an offence. The coroner had then the power to certify the offence to the High Court and the court could inquire into the matter and could "punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of that court".
Mr Justice Keane remarked that it seemed to be a curiously worded provision in that whereas sanctions were available for not answering questions no punishment seemed to be provided for a failure to comply with a witness summons although one could argue that the failure to attend would come within the terms of sub-paragraph (b) of section 38(2). However Mr Justice Keane referred to the more fundamental problems besetting section 38(2) in that section 38(2) was similar in all material respects to section 3(4) of the Committee of Public Accounts of Dail Eireann (Privilege and Procedure) Act 1970 which had been found to be unconstitutional in the case of In Re Haughey [1971] IR 217. The Supreme Court had been invited in Desmond v Glacken and Others [1993] 3 IR 67 to depart from its previous decision in In Re Haughey, but had declined so to do. Mr Justice Keane was of the view that if the coroner were to invoke the powers purportedly conferred upon on him by section 38(2) of the 1962 Act he would be met with the contention that the provision in question was clearly unconstitutional. Not surprisingly, the coroner had not chosen to adopt what would appear to be a futile course.
The Chief Justice then turned to consider the role of the Attorney General in the proceedings. The Attorney General had issued proceedings and had sought an interlocutory injunction relying upon what was claimed to be the general jurisdiction of the High Court to enforce the law. Mr Justice Keane stated that there was no doubt that such a jurisdiction existed. In addition to the specific role assigned to him by the Constitution as legal adviser to the Government, the Attorney General was also the guardian of the rights of the public and the courts enabled him to perform that role by the granting of injunctions or other appropriate relief. This had been recognised in the case of the Attorney General in Ireland prior to 1921 and the same considerations applied to the Attorney General of the Irish Free State: see Moore v The Attorney General [1930] IR 471. In addition Mr Justice Costello , as he then was, in Attorney General and Another v Paperlink Ltd and Others [1984] ILRM 373 had held that this function was also vested in the office of Attorney General created by the present Constitution.
However Mr Justice Keane stated that this function was only to be exercised by the Attorney General in exceptional circumstances. For example, where particular conduct was prohibited by the law and criminal sanctions were provided, the appropriate method of enforcing the law was by way of a criminal prosecution. However in certain circumstances the availability of criminal sanctions would not prevent the Attorney General issuing proceedings and being granted relief. In this regard the Chief Justice referred to the cases of Attorney General v Chaudry and Another [1971] 1 WLR 1614 and Attorney General and An- other v Paperlink Ltd and Others [1984] ILRM 373. In the Paperlink case the defendants were carrying on a business of collecting and delivering letters in breach of the statutory monopoly then enjoyed by the Minister for Posts and Telegraphs. The High Court found that the penalty prescribed by the statute (1908) for such conduct was wholly inadequate and granted the injunction sought.
Mr Justice Keane remarked that it was of course a matter for concern in this case that no steps have been taken to remedy the defects in the legislation under consideration, although these should have been apparent at least since the case of In Re Haughey some 30 years ago. However, the courts must ensure as best they can that the enforcement of the law was not frustrated because the remedies provided by the relevant legislation were inadequate. The jurisdiction should be exercised only in exceptional cases and where, in the words of Lord Denning MR in Attorney General and Anorther v Chaudry it was "just and convenient" to grant the relief claimed.
Mr Justice Keane observed that the institution of an inquest conducted by a coroner had been an important feature of our legal system for many centuries. The Chief Justice stated that he would have no difficulty in accepting that, until the law was reformed by the Oireachtas so as to provide for adequate sanctions, in a case where an essential witness refused to attend an inquest, the court should make use of its residual jurisdiction to ensure that the law was observed. It was obvious in the instant case that if the interlocutory injunction granted by the High Court directing the defendant to attend the adjourned hearing was upheld this would finally dispose of the proceedings. It was accordingly, not entirely logical to resolve the issue regarding the granting of the injunction by reference to the usual test, i.e. as to whether the plaintiff has established that there was a fair question to be tried. If it should emerge at the plenary hearing of the proceedings that, while there was a fair question to be tried, the defendant was in fact entitled to succeed it would be difficult to see how justice could be done to the defendant where the interlocutory order has effectively disposed of the entire case.
Mr Justice Keane referred to the evidence tendered by the plaintiff. The affidavit grounding the application stated that it had not been possible for the inquest to be concluded because of the inability of the coroner to obtain the attendance of the defendant. However no reason had been given for this somewhat bald assertion. Although in a letter written to the Chief State Solicitor the coroner had referred to the defendant as "an essential witness" no evidence had been forthcoming to explain this assertion. Indeed it had not been established why the defendant's evidence was necessary in order for the inquest to determine how, when and where the defendant's late husband died, the only matters (other than the identity of the deceased) which were, by virtue of section 30 of the 1962 Act, within the remit of an inquest. Also in this letter the coroner had referred to the fact that the family of the deceased were "adamant" that they wished to hear the defendant give evidence viva voce at the inquest. However it was for the coroner, and the coroner alone, to determine whether the attendance of a particular witness was necessary.
The Chief Justice was satisfied that as matters stood it had not been demonstrated so far that this was an exceptional case which required the courts to exercise their residual jurisdiction in order to secure compliance with the law. The appeal would be allowed and an order refusing to grant the interlocutory relief sought by the Attorney General would be substituted for the order of the High Court.
Solicitors: Chief State Solicitor for the plaintiff; William Bradshaw & Co. (Dun Laoghaire) for the defendant.
Robert Forde Barrister
