Will proposed reforms make coroners more independent from the Gardaí?

When Shane Tuohey went missing after a night out in 2002, “there were rumours” within the community – and “in particular within Garda ranks” that his death had been suicide, according to the report of an inquiry published in this year.

This shaped the Garda investigation, and – because the guards are so deeply involved in inquests – the subsequent inquest, says his sister, Gemma Tuohey. They wanted an investigation into whether he was murdered, and were frustrated.

Coroners are supposed to be independent judicial officers, operating outside the courts system, to establish the “who, when, where and how” of unexplained deaths.

But they are not independent from the Gardaí, who work hand in hand with coroners on inquests.

Gardaí serve as investigators, and for inquests with juries, they choose the jurors via methods that neither An Garda Síochána, nor the Dublin District Coroner’s office, nor the Coroners Society of Ireland have explained.

“The guards have far, far too much control over this,” Gemma Tuohey said by phone on Monday. “How can you be independent if you rely solely on the information from the guards?”

Garda involvement in inquests is concerning “particularly when death investigation involves the behaviour of gardaí and/ or others in State institutions which have a close working relationship with gardaí”, said a 2021 report from the Irish Council of Civil Liberties (ICCL).

Giving coroners their own investigators so they don’t have to rely entirely on gardaí was suggested in a report published in October by the Department of Justice on a public consultation about how to reform the coroners system.

Also, there was “strong support” to switch from leaving it up to gardaí to choose jurors through some mysterious process, to “selecting inquest juries by random selection if/when required”, like at regular courts.

Yet a press release about a plan the Department of Justice announced on 25 October to reform the Coroner Service makes no mention of giving coroners their own investigators or changing how inquest jurors are chosen. Is it deeper in the details of the plan?

The government has approved drafting a general scheme that will introduce “important reforms” to the Coroner Service “to increase efficiencies and minimise the impact of the death investigation process on bereaved families” a department spokesperson said.

“The implications of changing the current jury system will be considered further during this process,” the spokesperson said.

Inquest juries

In 2022, Sinn Féin Senator Lynn Boylan introduced a bill to have the jury for the new inquest into the Stardust tragedy chosen in the normal way courts choose juries, rather than leaving it up to the guards.

Forty-eight people died in a fire at the Stardust nightclub in 1981. The original inquest ruled the fire started because of arson.

Families of those who died rejected this though, and campaigned for years for a new inquest, eventually being granted one by the attorney general.

And Boylan and others wanted the jury for that new inquest chosen in a different way.

“Unless steps are taken urgently, the Government will send a message out to the world that An Garda Síochána, who are, let us not forget, a party to this inquest and will have to answer for the manner in which it preserved the scene of the fire and investigated it afterwards, would be the same body to select the jury,” Boylan said at the time.

In the end, legislation was brought in to make a special provision to take the jury selection for that one inquest out of the hands of the guards.

Earlier this year, the inquest jury delivered a verdict of unlawful killing, finding that the fire started in a hot press due to an electrical fault and that emergency exits were locked.

While the system for choosing the jury for the new Stardust inquest is clear, it’s not clear at all how jurors are chosen for other inquests.

Asked to explain in detail how gardaí assemble juries for inquests, the Garda Press Office said, “The selection of individuals eligible to serve on juries at Coroner’s inquests is set out in the Coroner Act, 1962.”

That law says, basically, that when a jury’s needed for an inquest, “the coroner shall so inform a member of the Garda Síochána and the member shall assemble not less than six and not more than twelve persons qualified to be jurors”.

A spokesperson for the Dublin Coroners Office, when asked how it is done, pointed to the same law.

When pressed for details, they said “In any given inquest requiring a jury (approx. 5% of all cases in the Dublin District), the jury members are usually assembled by the investigating member of An Garda Siochana.”

In response to a request under the Freedom of Information Act for documents or correspondence dealing with the procedure for choosing juries for inquests, they pointed out that the Office of the Information Commissioner decided in 2017 that the act doesn’t apply to coroners.

Coroner’s Society President Joe Kelly has not responded to a query sent 9 October about how inquest juries are chosen. Coroner’s Society public relations officer Isobel O’Dea hasn’t replied to a query sent 11 October.

How inquest juries are chosen

Gemma Tuohey, says she’s unsure how the jury was chosen for the inquest into her brother’s death in Offaly.

“I’ve been told one particular guy, he is there regularly. He is almost like part of the team. He has been there numerous times,” she said.

Shane Tuohey’s body was found in the River Brosna. The post mortem found he had died of “drowning by immersion in fresh water”.

An inquiry by a retired judge into Tuohey’s death, published in June 2024, did not find any evidence of foul play.

The 2021 ICCL report “Death Investigation, Coroners’ Inquests and the Rights of the Bereaved” touched in places on how inquest juries are selected.

“One family was surprised that the jury was all male, all but three over 70,” the report says.

“The verdict was reached in fifteen minutes: ‘At least five were shaking hands with the Gardaí, patting them on the back in front of the family. It made us feel horrid. Three slept through the whole process’”, it says.

It also quoted a coroner, anonymously, as saying “in most cases the guards will organise a jury for me … I get a number of very familiar faces … it is very hard to get people who are prepared to commit to jury service”.

This coroner said return jurors were acceptable, and even desirable, as experience makes them better at the task.

During a 2022 discussion at the Oireachtas Joint Committee on Justice, the ICCL’s Doireann Ansbro said “we also heard about families seeing advertisements on Facebook from the Garda looking for jury members”.

At the same discussion, Senator Michael McDowell said he “fully” supported reform of the way inquest juries were selected.

“Clearly, it is not satisfactory that a member of An Garda Síochána just goes down to the local main street and selects people he or she finds available and puts them in to act as a jury,” he said.

The ICCL report suggested that juries for inquests in Dublin, unlike the rest of the country, are chosen by the Garda Síochána Ombudsman Commission (GSOC) not An Garda Síochána.

In response to a query about this, a GSOC spokesperson said that if a coroner asks them, GSOC officers will help out by “arranging the jury members”.

They would use the same criteria for determining who’s ineligible as is used in other courts, under the Juries Act, the spokesperson said.

“Further GSOC would request an individual juror to declare any relationship to An Garda Síochána. GSOC would take direction from the Coroner on such matters,” they said.

So what reforms are proposed then?

If the existing system for choosing juries for inquests wasn’t good enough for Stardust, why is it good enough for all the other inquests?

“The holding of fresh inquests into the Stardust fire tragedy represented an exceptional situation having regard to the history of previous investigations and the large number of fatalities,” the Department of Justice spokesperson said.

It has not yet been decided whether this latest effort to reform the Coroner Service will include reform of the way jurors are chosen. A department press release issued on 25 October does not mention it.

It says Minister for Justice Helen McEntee, a Fine Gael TD, has “secured government approval to draft the general scheme of a Bill to significantly reform the Coroner Service to increase efficiencies and minimise the impact of the death investigation process on bereaved people”.

This will “address all aspects of the Coroner Service including”, “establishment of an independent Office of the Chief Coroner, who will be responsible for setting standards, providing guidance and overseeing the activities of full-time salaried coroners, a model in line with best practice internationally”.

Something like this was top of Gemma Tuohey’s list of things she’d change about the way the system works now.

“A coroner needs to be held accountable to somebody,” she said. “It’s unbelievable in this day and age, that they are law upon themselves.”

The department says the reforms will also include “enhancing the support available for families and friends of the bereaved throughout the death investigation process”.

As well as reforming “the current approach for the provision of coroner-directed autopsies, to ensure that families across Ireland have equal access to pathology services and do not experience unnecessary delays”

And “reviewing the number of ‘reportable deaths’ that are required to be reported to a Coroner. Ireland currently reports significantly more deaths than comparable jurisdictions and consequently has cause to investigate many more deaths than might otherwise be required”.

A quote attributed to McEntee says: “A restructured and modernised Coroner Service will drive consistency and will assist coroners to better need the meets of bereaved people, through the provision of enhanced ICT, administrative, and family liaison supports.”

The ICCL put out a statement that same day, 25 October, saying that any reform must be in line with the rights of bereaved families under Article 2 of the European Convention of Human Rights.

“And it must include legal aid for families and the reform of jury system at inquests,” the statement says.