11 Aug 2022

High Court challenge brought over Attorney General's refusal to order fresh inquest

High Court challenge brought over Attorney General's refusal to order fresh inquest

A High Court challenge has been brought over the Attorney General's refusal to direct a fresh inquest into the death of man who drowned in the Dublin Docklands in 2008.

The action has been brought by Emma Kelly, whose brother John Kelly drowned at Britain Quay, Dublin 2 during the early hours of the morning on October 16th 2008,

In 2018 retired High Court judge Mr Justice Daniel Herbert criticised the Garda response to emergency calls made after Mr Kelly went into the water on the night in question which he said were “confused, inappropriate, and inadequate”.

On the night in question Mr Kelly, who was 24 years of age at the time, is thought to have gone into the water at 12.15am, and could be heard making repeated calls for help.

It is claimed that residents from nearby apartments called the gardaí. It is claimed Gardai did not attend the scene until 15 minutes after the first call at 12.28am.

Gardaí located Mr Kelly in the water about 12.55am. Mr Kelly slipped under the surface at 12.58am, shortly after emergency fire and river rescue services arrived on the scene.

In his report, made following an inquiry into allegations of Garda failings or misconduct, Mr Justice Herbert recommended “an urgent investigation” into the capacity of gardaí to respond correctly and effectively to emergency phone calls from the public.

The original inquest in 2009 found that Mr Kelly died due to a 'misadventure.' However, his family claim that hearing was flawed and in light of Judge Herbert's serious findings a new inquest is required.

At the High Court on Monday lawyers representing Emma Kelly told Mr Justice Charles Meenan that they are unhappy with the original inquest, which they say was tainted by procedural irregularities. 

They claim there was a failure to call eye witnesses to the death of Mr Kelly as well as witness who could give evidence on the Garda investigation to the inquest.

It is also alleged that there was a failure to give the Kelly family the option to have the inquest heard by a jury, and that the family were asked by a solicitor representing them which verdict did they wish the coroner to give.

The court heard that the Kelly family wrote to the Attorney General, calling on him to use his powers under the 1962 Coroner's Act to order a fresh inquest into the circumstances of John Kelly's death.

Last October the AG decided last October declined to order a fresh inquest. The family claim the decision is unfair, irrational and contrary to the public interest.

As a result, Emma Kelly from Dominic's Park, Athy Co Kildare has brought judicial review proceedings against Ireland and the Attorney General seeking orders quashing the AG decision not to order a fresh inquest.

She also seeks an order from the court directing the AG to order a new inquest, as well as a declaration that the decision was unlawful and in breach of the 2003 European Convention on Human Rights.

The application was made on an ex-parte basis, where only one side was present in court.

Mr Justice Meenan, directed that the application for permission to bring the challenge be heard on notice to lawyers for the respondents.

The case was adjourned to a date in March.

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