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1. This is an application for an Order of Certiorari by way of an application for Judicial Review of the ruling and decision of the Respondent made on 10 September, 1998 to permit witnesses who are members of the Garda Siochana to testify at the inquest of John Morris, deceased, with anonymity in a manner whereby they would be identified only by code letter.

They also seek by Order of Certiorari a Judicial Review of the ruling and decision of the Respondent made on 10 September, 1998 to permit the identification of the forensic and ballistic reports which are to be adduced in evidence at the inquest by identification numbers which would identify the weapons used and the exclusion from the said reports of the identity of witnesses and members of the Garda Siochana.

In the Coroners Act, 1962 it is provided under Section 28 that:-

"Where a coroner holding an inquest does not take depositions he shall take a note of the name and address of every person who gives evidence at the inquest."

29(1) Every deposition or note of the names and addresses of witnesses taken at an inquest, every report of a post-mortem examination made in pursuance of this Act and every record of the verdict returned at an inquest shall be preserved by the coroner.

(2) When a coroner ceases to hold office all documents preserved by him under this section shall be handed over to the county registrar for the county or county borough in which his district is situate and the county registrar shall preserve the documents.

(3) A coroner shall furnish a copy of any document preserved by him under this section to every applicant therefor and, except where the application is made on behalf of the Minister of State or the Garda Siochana, may charge for a copy such fee as may be prescribed.

(4) A county registrar shall furnish a copy of any document preserved by him under this section to every applicant therefor and, except where the application is made on behalf of the Minister of State or the Garda Siochana, shall charge for a copy such fee as may be prescribed.

Section 30 provides that questions of civil or criminal liability shall not be considered or investigated at an inquest and accordingly every inquest shall be confined to ascertaining the identity of the person in relation to whose death the inquest is being held and how, when and where the death occurred.

Section 56 provides that forms may be prescribed in respect of the inquest including depositions and records. Until forms have been prescribed under this section the forms usually used before the commencement of this Act continue to be used and may when necessary be modified so as to conform with the provisions of this Act.

It is clear that under the Act an agreed deposition or note of the names and addresses of witnesses taken at an inquest and a report of a post-mortem examination and every record of a verdict must be preserved and copies of any preserved documents must be provided on payment of the appropriate fee to every applicant therefor.

Accordingly, at first blush the coroner is obliged to provide the name and address of every person who gives evidence at the inquest if he does not take depositions. Mr Charleton argues that Section 29, Sub-section (1), makes a clear distinction between every deposition or note of the names and addresses of witnesses taken at an inquest. He argues that a deposition does not have to be signed or the person who makes it identified.

What is a deposition? In Osbourn's Concise Legal Dictionary (8th Ed) London Sweet & Maxwell, 1993, p 113 it is defined as:-

"A statement on oath of a witness in a judicial proceeding: in committal proceedings, the evidence of a witness before examining justice is taken down in writing and signed by the witness. The examining justices should sign a certificate listing each witness who gave oral evidence and signed a deposition."

In Mozley & Whiteley's Law Dictionary (11th Ed) Butterworths, 1993, at p 80 defines a deposition as follows:-

"A word to indicate written evidence or oral evidence taken down in writing."

A Dictionary of Irish Law, Henry Murdock, (Revised 2nd Ed) Topez Publications Dublin, 1993 at p 156 defines a deposition as:

"A statement on oath of a witness in a judicial proceeding, eg, the statement of witnesses in criminal matters before the committing justice: RSC O 86 r 50. Generally a deposition may not be given in evidence at a trial without the consent of the party against whom it may be offered, unless the deponent is dead, or beyond the jurisdiction of the court, or unable from sickness or other infirmity to attend the trial: RSC O 39 r 17. If the deponent refuses to sign the deposition, it must be signed by an examiner: RSC O 39 r 11, 15."

Cross on Evidence (7th Ed) Butterworths, London, 1990 confirms at p 263 that:-

"When depositions are taken by a coroner, there does not appear to be any similar statutory provision for their being read at any trial that takes place on the coroners inquisition."

This is subject to the exception that a deposition might be read where the deponent has since died and if the deposition was signed by him and the coroner and the accused had the opportunity to cross-examine the deponent. RSC O 39 r 11 provides that a deposition when completed is read over to the witness and signed by him in the presence of the parties or of such of them as may think to attend. If the witness refused to sign the deposition the Examiner shall sign the same.

The case is made that the gardai will give evidence behind the screen in the presence of the lawyers for the deceased the jury and the coroner but will be identified by letters and no-one else will be allowed to know what they look like and the letters will not be identified by a name or address to anyone including the coroner. This would be a radical departure from the normal procedure for a coroner with statutory inquiries which are of their nature extremely limited.

In the very useful "Handbook for Coroners in the Republic of Ireland" by Patrick O'Connor, Old House Press, Swinford, 1997 presently President of the Law Society, precedents are given for depositions at pp 95-96. They appear as follows:

"Coroners Act, 1962

Depositions

Coroner's District: . . .

Inquest on body of: . . .

Place of Inquest: . . .

The Deponent: . . .

(name of deponent)

says on oath/affirmation

Taken before me this . . . day of . . ., . . .

. . .

Signed: . . .

CORONER."

The Dublin City Coroner is a registered medical practitioner and a Barrister at Law. He has filed an Affidavit in this matter which sets out the facts.

The inquest under the provisions of the Coroners Act, 1962 were performed by him in the Coroners Court in Store Street, Dublin 1 on 16 July, 1997 inquiring into the death of John Morris on 4 June, 1997. On the grounds that garda inquiries were on-going, the said inquest was adjourned on the application of an Inspector of An Garda Siochana.

Initial submissions by Counsel were made on 9 July, 1998:

(a) that the gardai concerned should not be called to give evidence in person as a threat to their safety had been made by a subversive organisation, namely, the INLA; and

(b) it was also indicated that the threat was made to RTE and that the gardai had serious concerns for their personal safety and the safety of their families if they be required to give evidence in person at the inquest.

Counsel for the Commissioner of An Garda Siochana reiterated the concerns of the gardai.

Counsel for the gardai further submitted that the forensic reports on the garda weapons used should not be admitted as this would identify the garda(i) who fired the fatal shot(s). The gardai concerned did not know who fired the fatal shots and there were security considerations in their not so knowing. Counsel for the family of the deceased opposed these applications indicating that an inquest was a public hearing and that the gardai concerned should give evidence in person. Counsel for the family also opposed the application for exclusion of the forensic report.

He then avers that:-

"Contrary to what is alleged in the Affidavit of the Applicants at paragraph (6) no application was made to the effect that the Gardai be granted anonymity at the hearing. The application was that the gardai not be called at all to give evidence at the inquest."

5. No question arose as to the reality of the threats made against the garda members. All Counsel present (including Counsel for the family) accepted that a threat was made and in particular Counsel for the family publicly distanced the members of the family from any threat made. His statement on behalf of the family was subsequently reported in the media.

6. Inspector Coburn was present at all hearings and was available if required to give evidence of the threat made. It has not been necessary to call him as all present accepted that a threat was made and that there was no application to call evidence to that effect.

7. I am advised by Counsel and believe that the presiding coroner is entitled to accept uncontradicted submissions of Counsel as to the reality and validity of a threat to personal safety. In the event there were several preliminary hearings and on no occasion did Counsel for the family question that a threat had been made.

8. The inquest was adjourned for this Deponent to consider the submissions of Counsel.

9. On 10 September, 1998 this Department made a ruling based on the submissions of Counsel and on the law governing the coroner's inquest that:

(a) the inquest was a public hearing and there was no precedent for a hearing in camera;

(b) the only occasion where the need for public inquest was abrogated was under the provision of the Restoration of Order in Ireland Act, 1920 when inquests were held by the military;

(c) at common law the coroner has power to admit documentary evidence in the form of written statements at an inquest;

(d) this power was only exercised when the evidence was undisputed or uncontroversial;

(e) while a coroner has discretion at common law to admit hearsay evidence, this would only apply to minor (undisputed) matters usually in the unavoidable absence of a witness and not to the principal witness to a death;

(f) while a coroner had discretion to admit documentary evidence this was in the context of the best evidence rule, ie, wherever possible the main witnesses should give evidence "viva voce" and be available to be examined by the coroner and legal representatives. This requirement is consistent with the principles of constitutional and natural justice applied to Courts and Tribunals;

(g) the public interest require that full inquiry be made into the circumstances of the death of John Morris and the law require that the best evidence should be made available at such inquiry;

(h) this Deponent ruled that the gardai concerned were material witnesses and should give evidence in person and be available to examination by the coroner and Counsel. In view of the threat to the personal security of the gardai concerned this Deponent ruled that he would permit the Gardai to give evidence without their names being read out and that they be publicly identified as garda A, B, C, D, E etc; and

(i) the forensic report on the weapons used would have to be admitted in evidence to prove that the deceased was killed by a garda gun and not by any other weapon. The identification of the particular weapon used could however be deleted from the report at the inquest in the interest of the personal security of the gardai concerned.

10. Having made the ruling a further submission was made by Counsel for the Gardai that in the event of their being present to give evidence in person that the gardai could be visually identified and this was a further security concern and the Deponent made a further ruling that:-

'(j) Once the Gardai were present in person they could be screened from the public gallery but be visible to the coroner, Jury, legal representatives and members of the press.

Objection to this additional ruling was made on the grounds that there was no notice of this application so the Coroner very properly adjourned the matter further to seek further submissions. After that he confirmed his ruling and then adjourned the inquest when Counsel indicated that there would be an application for Judicial Review of his decision. He also avers that the Coroner retains discretion to control proceedings and that this discretion must be exercised with regard to the requirements of constitutional and natural justice but his ruling did not infringe the immunities and privileges of a witness at an inquest and the Coroner did not disregard the provisions of Sections 28 and 29 of the Coroners Act, 1962 and that the Coroner will take note of the name and address of every person who gives evidence at the inquest and will preserve every document and furnish every document to every applicant therefore. He says that far from preventing the applicants from cross-examining witnesses the Coroner was facilitating such examination. He also denies that he had not disregarded the provisions of the Oaths Acts and that the witnesses would be required to provide names and addresses to the Coroner. There was no evidence before the Coroner regarding threats but apparently this was because the existence of the threats was not denied as can be seen in the Coroner's Affidavit. There is a useful note made by the Solicitor for the Applicant on the Coroner's ruling on 10 September, 1998. It is clear that the Coroner carefully considered the various legal authorities open to him. In particular he refers to Roe v Blood Transfusion Service Board & Ireland [1996] 3 IR 67, In Re: R Limited [1989] IR 126 and the Irish Constitution at p 330-400. The applicable law is stated by Keane J in Farrell v The Attorney General [1997] 1 IR 203 at 223 and I quote:-

"The holding of an inquest by a coroner, with or without a jury, has been a feature of our law for many centuries. While few would dispute the need to have a public inquiry by a person with appropriate legal or medical qualifications into the death of a person as a result of violence or in other circumstances which render such an investigation appropriate, our present law governing inquests, despite its partial modernisation in 1962, is in some ways anachronistic, as witness the continuing jurisdiction to hold inquests into 'treasure trove'. (see S 49 of the Act of 1962).

In its modern form there are two features of the Coroner's inquest which are of particular relevance in this case. First, it is a purely inquisitorial procedure. As Lane LCJ put it in R v South London Coroner, Ex-parte Thompson (1982) 126 SJ 625:-

'. . . it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should not be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a criminal trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use.'

Secondly, the verdict resulting from an inquest cannot impose civil or criminal liability of any sort to any person (of Section 30 of the Act of 1962).

Indeed, the only result of coroners inquests is a death certificate. This is a public document and is receivable as such evidence.

The Court was also referred to the "Handbook for Coroners in the Republic of Ireland" already cited, by Patrick O'Connor, pp, 8-12 and Halsbury's Law of England, (4th ed) Vol 9(2). The Applicant admits that if a garda witness gives evidence with anonymity and in a manner whereby they will be identified only by a code letter, the Coroner granted the said witnesses a privilege which would not be available to a witness before the High Court and accordingly disregarded the aforesaid legislative decision in [Roe v Blood Transfusion Service Board & Ireland, [1996] 3 IR 67].

The situation in Northern Ireland is totally different. In Leckey, J and Greer, D "Coroners' Law and Practice in Northern Ireland", SLS Legal Publications, Belfast, 1998, it is provided under the heading "The Screening of Witnesses" at para 9-37 as follows:-

"A witness who is a member of a special unit of the police or armed services may in certain cases wish to conceal his identity and/or physical appearance on grounds of national security or for some other reason. In such case, an application will be made to the coroner normally grounded on a Public Interest Immunity Certification that the witness be allowed to give evidence from behind a screen which prevents him from being seen, at least by members of the public. It may be necessary for the coroner to convene a preliminary hearing for the purpose of receiving legal submissions in relation to such an application. Should the coroner accept that the witness has established that such "disclosure" is not in the pubic interest, he will permit the witness to give his evidence from behind a screen. Whilst everyone in court will still be able to hear the witness give evidence only the coroner, legal representatives and Jurors will be able to see him."

They also refer to In re Ministry of Defence's Application [unreported QBD (Crown Side)], 9 July, 1993 [transcript on lexis], [1994] NI 279 (CA)). Counsel on behalf of the Ministry of Defence had made an application to the coroner, grounded on a Public Interest Immunity Certificate that three soldiers should be screened whilst giving evidence. The coroner refused the application and the Ministry of Defence sought a Judicial Review of that decision. McColum J (as he then was) in the High Court quashed the coroner's decision and remitted the matter for reconsideration by the coroner. In the course of his judgment, the learned Judge observed:-

In my view the effect of [rule 5] is to curtail the power of the Coroner to regulate the conduct of proceedings in his court. He has a statutory duty to conduct the hearing in public and in my view he would not be entitled to regulate procedures in his Court so as to hold any part of the hearing other than in public . . . except as allowed by the proviso to the rule. In relation to the public nature of the hearing, therefore, the Coroner's only discretion is to exclude the public from an inquest or any part of the inquest if he considers that it would be in the interest of natural security so to do."

The quote in textbook confirms that McColum J's statement must be taken as representing the law. The textbook continues at para 9/39:-

"In the Ministry of Defence case, McColum J appeared to hold that the screening of a witness derogates from the principle that an inquest should be held in public, but when required in the interest of national security, such screening is authorised by the proviso in rule 5: 'The power to exclude the public must also include the power of partial exclusion by way of a screen.

At paragraph 9/40 it also states:-

"Where an application for a witness to be screened is based on national security considerations the coroner is in any event required to balance the restrictions inherent in screening against the considerations of national security set out in a Public Interest Immunity Certificate. In Re Ministry of Defence's Application, Hutton LCJ advised that the coroner should bear in mind that even if the witnesses (in that case three soldiers) are screened:-

'the legal representatives of the parties will be able to see the faces of the soldiers as they give evidence and are cross-examined and that the only restriction on the public hearing will be that members of the public and of the press and media will not be able to see the faces of the soldiers as they give their evidence. This is undoubtedly a restriction on the public nature of the hearing but it is a limited restriction and the Coroner will have to balance that limited restriction against the considerations of national security set out in the Certificate of a Secretary of State, to which certificate he must give due weight'."

The Court was also referred to R v HM Coroner for Newcastle-upon-Tyne, Ex-parte A, QBD, December 19, 1997, Tucker J. In that case it was held that a coroner had an inherent power to order the screening of witnesses in exceptional cases if the administration of justice so requires and this does not transgress Rule 17 of the Coroners Rules, 1984 which provides that an inquest shall be heard in public unless the coroner considers exclusion necessary in the interest of national security so to do. A Coroner who had interpreted the rule (Coroners Rules, 1984 -- English) to mean that screening a witness excludes the public was held to have erred. The Court also considered Regina v Her Majesty's Coroner at Hammersmith, Ex-parte Peach, [1980] 2 All ER 7, In Re: Mailey & Ors, QBD [1980] NI 102, R v Edgar & Ors, [1958] 2 All ER 494, R v Kerry 1976 CR at App Rep 152, R v Barnet Magistrates Court, Ex-parte Wood, Crim LR 78, In the matter of an application by Hugh Jordan for Judicial Review, unreported, 28 June, 1996, Court of Appeal. It was pointed out to the Court that Costello P allowed screening in sex cases before the video-link was established and Budd J had done it in a garda compensation case to protect the garda.

In the Superior Courts the procedure governing the taking of depositions is covered by Order 39, Rule 11. In the English Courts, including several of the judgments cited above, did not require that the deposition to be signed and documents used to ground jurisdiction, although there is some confusion. A requirement which happened in the Magistrates Court was regarded as merely directory and not mandatory in character. The Coroner has obviously given great care and consideration to the problems raised in this Court. One also sympathises with the garda who have a very difficult job to do and fear for their own safety and in particular the safety of their own families. However, there is no suggestion that there is any question of national security being involved. It is very much a question of personal security. We do not have the equivalent to Rule 17 here. The purposes of the rule is firstly to allow parties and members of the public to hear the evidence of the circumstances of the death and secondly to prevent members of the public from hearing evidence of matters affecting national security. The Coroner quotes cases which appeared before other coroners in which the gardai were allowed to be identified by letters. However, the legal grounds for such procedures in this jurisdiction has not been questioned or tested.

It would certainly seem desirable that the request for anonymity should be investigated by the Coroner. It is not for the gardai personally to claim it. The State can take the point before the Coroner decides the matter on tested evidence. The Coroner must take a note of the names and addresses of witnesses or a deposition. In this jurisdiction a deposition must normally identify who is the deponent. The Coroner in his cited affidavit ruled that the gardai were material witnesses who must give evidence. There is no precedent, he admits, for anonymity. The Coroners Court is a creature of Statute under the Constitution and therefore English and Northern Ireland cases are not necessarily helpful.

While anonymity may be necessary for national or personal security reasons the Coroners have no such power and it is for the legislature not the Courts to remedy this lacunae (DPP v Goulding, Supreme Court, 2 July 1999, unreported). The Courts are not allowed to seek pragmatic solutions.

Accordingly, the coroner must confine himself to the duties imposed by the Act and particularly Section 28 thereof. He must preserve and provide all documents received by him under the Act. He has ruled that the forensic report is necessary. It is obviously part of the post-mortem report.

While the Court fully appreciates the difficulties and worries of the gardai, and hopes that the necessary legislation may be considered and if deemed appropriate enacted. The Coroner has not got the powers the purported to exercise. In the circumstances, the Court doth grant the two Orders of Certiorari sought.