High Court grants leave for Article 2 challenge to statutory inquiry

The High Court in Dublin has granted leave for a judicial review of the terms of reference for the statutory inquiry into the death of John Kelly.

Mr Kelly’s family was granted a statutory inquiry in 2016 under section 42 of the Garda Síochána Act, but believes the terms of reference fail to comply with Ireland’s obligations under Article 2 of the European Convention of Human Rights.

The Justice Minister decided Article 2 was not engaged in the inquiry process. That decision will now be reviewed as early as December.

Belfast solicitor Darragh Mackin of KRW Law, representing the family, said Article 2, which protects the right to life and places obligations on the state to investigate suspicious deaths, has not been tested in the State in the same way as in Northern Ireland and Britain.

Mr Mackin said: “We welcome this grant of leave to pursue this judicial review challenge against the erroneous decision of the Justice Minister. This is completely new territory.

“This is the first time for the Irish government to be challenged on its obligations under Article 2 of the European Convention on Human Rights in this way.”

In granting leave to pursue the judicial review, Mr Justice Donald Binchy accepted all the grounds argued by KRW Law on behalf of the family of the deceased, which included the failure to make the inquiry compliant with the human rights standards demanded by the ECHR when there has been a violation of Article 2.

The firm also argued it was a breach of the Constitution; contrary to the public interest; that the decision of the Justice Minister was unfair, unreasonable and irrational; and that the family had a legitimate expectation that an inquiry would be human rights compliant.