The Supreme Court has dismissed an appeal aimed at compelling the State to establish an inquiry into the handling of the Garda investigation into the 1976 murder of a Co Louth man, Seamus Ludlow.
Giving the seven-judge court's decision, Chief Justice Frank Clarke said the court was not satisfied that there is an obligation on the state, either under the European Convention on Human Rights (ECHR), or under the Constitution, to conduct what he said would amount to an investigation into the investigation into Mr Ludlow's killing.
The appeal was brought by Thomas Fox, a nephew of Mr Ludlow, following the rejection of his proceedings, brought on behalf of the family, to have the State establish commissions of inquiry.
The appeal centred on the nature of the State’s obligations under European law to inquire into the circumstances of a death.
The Supreme Court was asked whether Article 2 of the ECHR obliges the State to carry out an effective investigation or inquiry into the circumstances of a death, or whether any such obligation is confined to identification and punishment of the perpetrators of the crime.
A report by retired High Court judge Henry Barron previously stated the murder of 47-year-old Mr Ludlow, who had no paramilitary connections, was “a random, sectarian killing of a blameless Catholic civilian by loyalist extremists”.
Mr Ludlow was shot after leaving a bar in Dundalk, Co Louth, and his body was found on May 2, 1976, in a lane near his home.
No-one was ever charged in connection with the murder and his family say gardaí failed to pursue an important line of inquiry: that he was an innocent victim of either loyalist or British forces who mistook him for a senior member of the IRA.
Despite the RUC having identified suspects north of the border, the Garda investigation was suspended after three weeks without explanation and after what a garda told the family were "orders from Dublin", they claimed.
An Oireachtas Committee said in 2006 it could not resolve why gardaí did not follow up the RUC information but believed it was because of a direction by a former senior garda.
The family sought commissions of inquiry to examine failures in the Garda investigation and to look into what documents might have been created by the State authorities in respect of the murder.
The State maintained the murder investigation remains open and commissions of inquiry could not progress that.
It said the DPPs on both sides of the Border had recommended no prosecutions concerning four persons named in the Barron Report as suspected perpetrators of the murder.
In 2015, then minister for justice Frances Fitzgerald apologised to the family over the "inexcusable" handling of the Garda investigation into the "callous, sectarian" murder but said there was no "new or substantial" information warranting commissions of inquiry.
After the High Court and Court of Appeal rejected the family’s case, the Supreme Court agreed to hear a further appeal.
There is a general public interest in clarifying the extent of the procedural obligations on the State under Article 2 of the ECHR and an appeal is also in the interests of justice as it “may bring finality” to the family, the court said.
In a judgement today, the court composed of Mr Justice Clarke, Mr Justice Donal O'Donnell, Mr Justice John MacMenamin, Ms Justice Elizabeth Dunne, Mr Justice Peter Charleton, Ms Justice Iseult O'Malley, and Ms Justice Marie Baker all dismissed the appeal.
The real issue of controversy between the parties is as to whether there is a continuing obligation, either under the Constitution or under the ECHR as applied in the domestic law of the State, to conduct further inquiries.
If there was a realistic basis for believing that more could now be learnt about the circumstances surrounding the death of Mr Ludlow, then such obligations might potentially arise, he said.
However, not being satisfied that there is any obligation, either under the Constitution or under the ECHR, to conduct a so-called “investigation into an investigation”, the chief justice said he did not consider that it has been established that there are continuing obligations on the State to conduct further inquiries at this stage.
Mr Justice Clarke said the focus of the case shifted from the time it was before the Court of Appeal and the High Court.
As the case evolved, significant argument was put forward as to whether the Constitution imposed an obligation on the State to carry out investigations into certain deaths, he said.
As the case developed, it also became clear that what was sought on behalf of Mr Fox was not so much an inquiry into the circumstances surrounding Mr Ludlow's murder but rather a further inquiry into the established inadequacies of the original investigation into his murder by the gardaí involving a failure to follow up, in 1979, on important intelligence received from the RUC.
There was no constitutional obligation on the State, in the context of investigating the circumstances surrounding a death, to conduct such an “investigation into an investigation”, he said.
This was certainly so in cases where there does not appear to be any realistic possibility of further light being cast on the circumstances surrounding the death in question by the identification of reasons for any failings in a previous investigation, the judge said.
The case originally made on behalf of Mr Fox was focused much more closely on obligations arising under the ECHR, the chief justice said.
Again he said that the Supreme Court was not satisfied that the ECHR imposes an obligation on the State to conduct an “investigation into an investigation”, at least where it has not been shown that there is a realistic possibility that the conclusions reached by such an investigation may in fact cast further light on the circumstances surrounding the death in question and/ or increase the possibility of a credible prosecution being capable of being brought.
In that context, the chief justice said he would "not go so far as the Court of Appeal in indicating that the procedural or investigative obligation on the State is confined to circumstances which might lead to a prosecution."
The court said it was also not satisfied that it had been established that there is any meaningful likelihood of further light being cast on the circumstances surrounding the murder of Mr Ludlow by further investigating the circumstances surrounding the position adopted by An Garda Síochána in 1979.
The judge said Mr Fox had sought a declaration to the effect that there had not been an appropriate investigation into the murder of Mr Ludlow which conformed with either or both of the Constitution and the ECHR.
It was accepted that the failings identified in respect of the actions of An Garda Síochána in 1979 meant that there has not been an investigation which complies with the obligations, in international law, on Ireland under Article 2 of the ECHR, he said.
However, nothing would be achieved by repeating that fact which has already been acknowledged by the Barron Inquiry, and as a result of hearings by the Oireachtas sub-committee, he said.
Those inquiries established either that a direction was likely to have come from senior gardaí not to follow up on the information received from the RUC in 1979.
Either way it has been acknowledged by important public bodies that what happened fell well short of that which was required.
In the circumstances the court was satisfied to dismiss the appeal, but “on slightly different grounds to those adopted by the Court of Appeal”, the chief justice concluded.