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Cite as: [2000] 4 IR 68, [2000] IESC 80

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A.G. v. Lee [2000] IESC 80 (23 October 2000)

    Keane C.J.
    Murray J.
    McGuinness J.
    Hardiman J.
    JUDGMENT delivered the 23rd day of October 2000 by Keane C.J., [Nem Diss].
    The undisputed facts which have given rise to these proceedings are as follows. On the 9th March 1996, one Gerard Lee was fatally shot. On the 3rd July 1996 the Dublin City Coroner, Dr. Brian Farrell, began an inquest into his death at the Dublin City Coroner's Court, which was adjourned until the 27th November 1997. At the resumed hearing, the defendant, who is the widow of the deceased Gerard Lee, appeared at the inquest, having been warned by the

    Gardai that she should do so. At that hearing, she said that a statement which she had made had been dictated to her by the Gardal. She began to give an abbreviated statement to the coroner, but this was objected to by a member of the Garda Siochána who asked the coroner to adjourn the inquest in order to permit the gardal to seek legal advice. The coroner acceded to that request and the inquest was adjourned until the 4th February 1998.

    A witness summons was then served on the defendant pursuant to s. 26(1) of the Coroner's Act, 1962 (hereafter "the 1962 Act") in order to secure her attendance at the resumed hearing. However, the defendant did not attend the inquest when it was resumed on that day. Garda Inspector Patrick Doyle then wrote to the defendant on the 27th February informing her that the coroner required an explanation as to why she did not appear at the coroner's court on the 4th February 1998. In a further letter, dated the 21st March 1998, Inspector Doyle informed the defendant that the inquest would be resumed on the 27th March 1998 and that he had been directed by the coroner to ascertain whether she would attend. The defendant again failed to attend when the hearing was resumed on 27th March 1998 and another witness summons was served personally on her on the 21st April 1998. She again, however, failed to attend the resumed hearing of the inquest on the 12th May 1998.

    On the 11th January 2000, the coroner wrote as follows to the Chief State Solicitor:-

    "Re: Gerard Lee, deceased.
    Dear Mr. Buckley, I refer to previous correspondence and wish to confirm that Mrs.Linda Lee is an essential witness at the inquest into the death of the above-named deceased. Furthermore, the members of the family of the deceased are adamant that they wish to hear Mrs. Lee give evidence viva voce and this has been reiterated by counsel on a number of occasions.
    Yours sincerely"
    On the 10th September 1999 the Chief State Solicitor wrote to the defendant warning her that, should she fail to attend on the next or any subsequent occasion, the Attorney General intended to issue High Court proceedings seeking to compel her so to do. A further witness summons was then served on the defendant on the 8th October 1999, but when the inquest was resumed on the 26th October 1999 the defendant was again not present.

    The present proceedings were then issued by way of plenary summons in which the plaintiff claims 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 the 17th February 2000;
    (b) a mandatory injunction directing the defendant to comply with the provisions of the Coroner's Act 1926 and to attend as a witness at the inquest to be held on that date.
    On the 20th January 2000, a notice of motion was served on behalf of the plaintiff in which he sought inter alia interlocutory relief in the form of an injunction directing the defendant to attend as a witness at the adjourned inquest. A grounding affidavit was sworn by Mr. Brian McMahon of the Chief State Solicitor's office who made it clear that relief was being sought in this form because the plaintiff was of the view that there was no other effective method available to secure the attendance of the defendant at the adjourned hearing of the inquest.

    Section 26(1) of the 1962 Act provides 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."
    Section 37 provides that a person who has been served with a summons to attend an inquest as a juror or witness and fails to attend at the specified time and place is to be guilty of an offence and liable on summary conviction to a fine not exceeding £5.00.

    It is not in dispute that that is clearly an inadequate sanction. Section 3 8(2), however, provides that

    "Any person who -
    (a) being in attendance as a witness at an inquest refuses to take an oath legally required by the coroner holding the inquest to be taken or to answer any question to which the coroner may legally require an answer or,
    (b) 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 and the coroner may certify the offence under his hand to the High Court, and that court may thereupon enquire into the alleged offence and after hearing any
    witnesses who may be produced against or on behalf of the person charged with the offence, and after hearing any statement that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of that court."
    This is a rather curiously worded provision, since it does not expressly provide that failure to comply with a witness summons - as distinct from refusing to take the oath when present at the inquest - is to be punishable in the same manner as contempt of court. It could, presumably, be argued that the failure to attend would come within the terms of sub-paragraph (b) of sub-s. 2, but, be that as it may, there is in any event a difficulty of a fundamental nature in operating this provision.

    Section 3 8(2) is similar in all material respects to s. 3(4) of the Committee of Public Accounts of Dáil Eireann (Privilege and Procedure) Act 1970 which was found by this court to be invalid, having regard to the provisions of the Constitution, in In re Haughey (1971) IR 217. The only difference of any significance is that in that case the impugned section, having specified the acts or defaults of the person concerned which were to trigger the mechanism provided by the subsection, went on to provide that

    "The committee may certify the offence of that person under the hand of the chairman of the committee to the High Court and the High Court may, after such enquiry as it thinks proper to make, punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of the High Court."
    In the present case, as we have seen, where the relevant act or default has taken place, the person

    "shall be guilty of an offence and the coroner may certify the offence under his hand to the High Court and that court may thereupon enquire into the alleged offence and after hearing any witnesses who may be produced against or on behalf of the person charged with the offence, and after hearing any statement that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of that court."
    However, in In re Haughey, O'Dálaigh C.J., giving the judgment of the court, while accepting that the truncated nature of the provision in that case lent support to the view that the committee was being authorised to try and convict a witness of a criminal offence, also considered that, having regard to the

    presumption of constitutionality, the committee certificate should be construed as "merely a step preliminary to the commencement of the trial of a criminal offence in the High Court", as had been held by the High Court in that case. The court went on to hold, however, that the section was unconstitutional because it clearly envisaged the summary disposal by the High Court without a jury of an offence which could not be regarded as a "minor" offence within the meaning of Article 38.2 of the Constitution. This court was invited in Desmond .v. Glacken and Others (1993) 3 IR 67 to depart from its previous decision in In re Haughey, but declined so to do.

    It is clear that, if in the present case, the coroner were to invoke the powers purportedly conferred on him and on the High Court by s. 38(2) of the 1962 Act, against the defendant, he would be met with the contention that the provision in question is clearly unconstitutional, having regard to the decision in In re Haughey. Not surprisingly, the coroner is not disposed to adopt what would appear to be a futile course.

    The Attorney General, in these circumstances, issued these proceedings and applied to the High Court for an interlocutory injunction relying upon what was claimed to be the general jurisdiction of the High Court to enforce the law by way of an injunction or other suitable remedy on the application of the

    Attorney General as the guardian of the public interest where it was just and convenient so to do. The application for the interlocutory injunction was granted by the High Court (Kelly J.) and from that decision an appeal is now brought to this court.

    There is no doubt that such a jurisdiction exists. It has for long been recognised that, in addition to the specific role assigned to him by the Constitution as legal advisor to the Government, the Attorney General is also the guardian of the rights of the public and the courts will enable him to perform that role by the granting of injunctions or other appropriate relief where the other remedies available for ensuring that the law is observed are plainly inadequate. 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. It was held by Costello J., as he then was, in Attorney General and Another .v. Paperlink Ltd. and Others (1984) ILRM 373 that this function was also vested in the office of Attorney General created by the Constitution.

    As was there pointed out, it was a function to be exercised only in exceptional circumstances. Where particular conduct is prohibited by the law and criminal sanctions provided, the appropriate method of enforcing the law is

    by way of a criminal prosecution. But circumstances can arise in which the law will not be upheld if recourse is had solely to the criminal law. Thus, in Attorney General .v. Chaudry and Another (1971) 1 WLR 1614, the defendants were using a building as a hotel, although no certificate under the relevant fire legislation had been issued in respect of the building. The local authority had issued a summons in the magistrates' court alleging an offence under the legislation, but were unable to secure an early hearing. They issued relator proceedings, joining the Attorney General as plaintiff, and were granted an injunction by the High Court restraining the use of the premises without the necessary certificate. The granting of the injunction was upheld by the Court of Appeal. Similarly, in Attorney General and Another .v. Paperlink Ltd. and Others 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 in present circumstances and, accordingly, granted the injunction sought.

    It is, 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 they should have been apparent at least since the decision of this court in In re Haughey nearly thirty years ago. As Finlay C.J. pointed out when giving the

    judgment of this court in Desmond and Anor. .v. Glacken and Aynor there is not

    "any insuperable obstacle to providing effective sanctions in respect of the refusal to co-operate with statutory investigations or tribunals which avoid this particular constitutional invalidity by the provision of statutory offences friable, in the alternative, summarily or with a jury, and appropriate limits on the penalties applicable to them."
    However, the courts must deal with the circumstances as they exist and ensure, as best they can, that the enforcement of the law is not frustrated because the remedies provided by the relevant legislation are inadequate. But the jurisdiction should be exercised only in exceptional cases and where, in the words of Lord Denning M.R. in Attorney General and Anor. v. Chaudry, it is 'just and convenient" to grant the relief claimed.

    The institution of an inquest conducted by a coroner has been an important feature of our legal system for many centuries. I would have no difficulty in accepting that, unless and until the law is reformed by the Oireachtas so as to provide for adequate sanctions in a case where an essential witness refuses to attend the inquest, the court should, where invited so to do

    by the Attorney General, make use of its residual jurisdiction to ensure that the law is observed.

    In the present case, the High Court granted an interlocutory injunction directing the defendant to attend the adjourned hearing. However, although in form the order appealed from is an interlocutory injunction, it is obvious that, if upheld, it will finally dispose of the proceedings. It is, accordingly, not entirely logical to resolve the issue as to whether the interlocutory injunction should or should not have been granted by reference to the usual test, i.e. as to whether the plaintiff has established that there is 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 entitled to succeed, it is difficult to see how justice could be done to the defendant where the interlocutory order has effectively disposed of the entire case.

    That is a relevant consideration in the present case. While it is said in the affidavit grounding the application that it has not been possible for the inquest to be concluded in the present case, because of the inability of the coroner to obtain the attendance of the defendant, no reason is given for that somewhat bald assertion. It is true that the coroner in his letter to the Chief State Solicitor of the 11th January refers to the defendant as "an essential witness ". However,

    no indication is given in the affidavit of Mr. McMahon or in the letter from the coroner as to why her evidence is essential in enabling the inquest to determine how, when and where the late Gerard Lee died, the only matters (other than the identity of the deceased) which are, by virtue of s. 30 of the 1962 Act, within the remit of an inquest.

    In his letter, the coroner refers to the fact that the members of the family of the deceased are "adamant" that they wish to hear Mrs. Lee give evidence viva voce at the inquest. No doubt coroners in conducting inquests, which can be difficult and even traumatic events for the family of the deceased, will want to have regard, so far as possible, to anything they have to say. But it is for the coroner, and the coroner alone, to determine whether the attendance of a particular witness is necessary.

    It may be that the plaintiff will be in a position to adduce evidence that the defendant is an essential witness at the inquest. As matters stand, however, no such evidence was before the High Court or this court and I am satisfied that it has not been demonstrated so far that this is an exceptional case which requires the courts to exercise their residual jurisdiction in order to secure compliance with the law.

    I would allow the appeal and substitute for the order of the High Court an order refusing to grant the interlocutory relief sought.

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