MCDERMOTT AND OTHERS v. IRELAND AND KEEGAN v. IRELAND
Inadmissible
André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Paul Lemmens
1. The five applicants, Bridget McDermott, Elizabeth Bissett, Mr Edward and Mrs Patricia Kennedy as well as Christine Keegan, are Irish nationals who live in Dublin. They are represented before the Court by Ms Yvonne Walsh, a solicitor practising in Dublin. The Irish Government (“the Government”) are represented by their Agent, Mr P. White, of the Department of Foreign Affairs and Trade. 2. The case concerns the death of the applicants’ children in a fire in 1981 in the Stardust Ballroom (“the Stardust”) in Dublin. The facts of the case, as submitted by the parties, may be summarised as follows. 3. In the early hours of 14 February 1981 a catastrophic fire swept through the Stardust in which approximately 850 persons were present. 48 persons died and 128 were seriously injured. The overwhelming majority of the victims were 18-25 years of age. It remains the greatest disaster to have occurred in the history of the State. 4. Three of the first applicant’s children died in the fire, the second applicant lost a daughter as did the third and fourth applicants. Two of the fifth applicant’s daughters also died in the fire and a third was injured. 5. Within minutes of the first call to the Police Control Centre, all available police officers in the area were dispatched to the scene. A police investigation commenced immediately. An investigation team, of over 70 persons of various specialities, was assembled at the special incident centre under the control of the Chief Superintendent from the Central Detective Unit. Extensive forensic examinations were carried out and approximately 1500 witness statements were taken. Post-mortem examinations were carried out by State pathologists. The Coroner held Inquests (the Coroner’s Act 1962) in March 1982 and made findings as to the physical causes of death. In 2007 DNA tests allowed the identification of the remaining five unidentified bodies (not the deceased children of the applicants). 6. On 20 February 1981 the Tribunal was established (Tribunal of Inquiry Evidence Acts 1921 and 1979) to inquire into all aspects of the fire including its cause. It was chaired by Mr Justice Ronan Keane assisted by three assessors: a Professor of the Department of Fire Safety Engineering of the University of Edinburgh; the Chief Inspector of Fire Services in Denmark; and the Head of the Construction Division of An Foras Forbartha (the National Institute for Physical Planning & Construction Research). It sat for 122 days (March-November 1981), it heard evidence from 363 witnesses including victims, next-of-kin of the deceased and many experts and it commissioned extensive tests. 7. The Tribunal’s Report dated the 30 June 1982 made findings and recommendations in relation to a very broad range of issues. 8. The Tribunal found that there had been serious deficiencies as regards the content of, compliance with and application of applicable planning, building, electrical, safety and fire standards by the owners of the Stardust, by relevant State bodies and officials. The Tribunal treated one of the owner’s evidence “with great reserve”, which owner bore a special responsibility for the “recklessly dangerous” practice of keeping the emergency doors chained which was done with “reckless disregard” for the safety of those on the premises. The Tribunal found that, without all of these deficiencies, the injuries sustained would have been unquestionably less and the death toll would almost certainly have been reduced. 9. While the Tribunal’s conclusions were critical of the Department of the Environment (responsible for the fire services, building regulations and planning), the Report did not point to the particular fault or deficiencies of individual officials in the Department and no administrative or disciplinary enquiries were later pursued. The Report mentioned by name a number of officials of Dublin Corporation but it did not appear to allot individual blame given the system failures at issue. Some responsibility was attributed to a Senior Building Surveyor in Dublin Corporation as regards failing to follow up on the use of carpet tiles on the walls. However, the Report accepted that it was possible, as the Surveyor had argued, that the relevant regulations were not clear on this subject. 10. As to the police investigation, the Tribunal found that it was exhaustive and meticulous and to be commended, although there had been “serious short comings” in the forensic investigation. Some of the owners and staff of the Stardust did not give the police the assistance to which they were entitled, one member of staff deliberately attempting to deceive the police on whether the exit doors had been locked. 11. The Tribunal went on to make broad recommendations on the approach to be adopted to fire safety in Ireland (“serious shortcomings in the approach to fire safety in Ireland which much be remedied as a matter of urgency”) including on education, training, allocation of responsibility for fire safety and legislative/regulatory changes as well as recommendations concerning the enforcement of standards. 12. As to the cause of the fire, it made two findings. On the one hand, it found, based on the absence of any evidence, that the cause of the fire was “not known and may never be known”. On the other hand, based on a hypothesis, it found that the more probable “explanation” was that the fire was started deliberately in the West Alcove of the Stardust. However, the Tribunal went on, erroneously as later accepted, to adopt its hypothetical explanation of arson as a “finding of fact” and as its conclusion as to the probable cause of the fire. 13. The Tribunal’s finding of arson provoked anger and immediate protestations among the survivors and the bereaved. It was perceived as casting a suspicion of criminal wrongdoing over all who attended the Stardust on the night of the fire. It was considered to exclude negligence proceedings against the owners of the Stardust and that it facilitated the award of damages for malicious damage by the State to the owners (see immediately below). It would appear that the fifth applicant’s husband set up the Stardust Victims Committee (“the Committee”) in May 1985, its main objective being to campaign for a further inquiry. 14. A police preliminary investigation report was completed in April 1981: nothing factual as to the origin of the fire had come to light. The police report and file was forwarded the Director of Public Prosecutions (“DPP”) who directed that no prosecution be pursued. In September 1982, following the conclusion of the Tribunal, a further police file (including an engineering report which was unable to identify evidence of any fault in the electrical, heating or ventilation systems which could have started the fire) was sent to the DPP, who again directed that no prosecution be pursued. At the time, no reasons were given for the DPP’s decisions. All police investigation material was made available to the Stardust Tribunal. 15 . In 1983 the owners of the Stardust brought a claim in malicious damage against the State. They relied on their own expert evidence and, while they did not specifically rely on the Tribunal’s Report, they did rely heavily on experts who had given evidence to the Tribunal to the effect that the fire had been caused deliberately. The State’s expert witness considered he could not refute this evidence and the Circuit Court accepted their evidence. In June 1983 that court found in favour of the owners, the trial judge stating that he had no doubt that the fire was malicious. In July 1983 the owners were awarded a total of 581,000 Irish Pounds (IR£). The State was legally advised that an appeal had no reasonable prospect of success. 16. On 22 October 1985 the Government established the Stardust Victims Compensation Tribunal (“the Compensation Tribunal”) to award ex gratia compensation for loss attributable to the fire. This tribunal comprised a High Court judge, a barrister and solicitor. Bereaved persons could claim compensation and acceptance of an award was conditional on discontinuing, or waiving the right to take, civil actions. Rejection of an award left claimants free to take civil actions except before the Criminal Injuries Compensation Board. Awards could not be appealed and no award could be made for the benefit of a deceased’s estate. Claimants were entitled to be heard and could call witnesses unless the tribunal considered it unnecessary. Claimants’ costs, even those already incurred in discontinued civil actions, would be discharged by the State. Approximately 950 applications were received. Cases were heard from November 1985 to December 1986. Given the distressing circumstances of the fatalities, claimants were awarded the maximum statutory amount for mental distress. 66 applicants were refused compensation and 64 withdrew their applications. Approximately 823 awards, totalling IR£ 10,458,115.00, were made. All awards were accepted. 17. The fifth applicant’s husband challenged the refusal by the Compensation Tribunal of an award for nervous shock. While it was accepted that he had suffered grief and sorrow, he had not suffered a psychiatric illness and was not therefore entitled to damages for nervous shock under the scheme. By judgment of 16 December 1986 the Supreme Court rejected his case (The State (John Keegan and Eoin Lysaght v. the Stardust Victims Compensation Tribunal ([1987] I.L.R.M. 202). Mr Keegan died that same day. The Keegan family award (including damages for mental distress and loss of earnings) totalled IR£ 170,800. 18. In 1991 the Compensation Tribunal published a report which recorded general conclusions and the total sum of compensation paid. The report criticised the fact that it was only before it that that many victims had been able to be medically examined and treated by doctors for the first time since the fire. The report therefore recommended that the Government put in place contingency plans, not only for rescuing victims and for their treatment in hospital, but also for monitoring their later progress. 19. In February 2004 the Committee submitted a report to the Department of Justice, Equality and Law Reform (“the Department of Justice”). The Department of Justice referred the report for expert analysis which concluded that the Committee’s report did not contain any new evidence. The Committee was informed of this in a meeting in November 2004. A letter 14 February 2008 from the police to the solicitor of the Committee explained the scope of this expert analysis and detailed why there was no new evidence warranting the police re-visiting the investigation. The applicants maintained that they were given a copy of this letter only after the Coffey Review (paragraphs 21-32 below). 20. The Committee then obtained reports from three fire experts whose evidence was that a more probable cause of the fire was that it started, or involved combustibles in, the Store Room (in the roof space) which contained a considerably greater fuel load than the West Alcove. The findings were published in a report called “Nothing but the Truth” and the report was the subject of a television documentary in February 2006. In July 2006 the Committee, through its solicitors, presented a full submission for a further inquiry (also called “Nothing but the Truth”) to the Government. In December 2006 the Committee was informed that, while the expert advice to the Taoiseach (Prime Minister) was that the report contained no new material which would justify holding an enquiry, he was willing to arrange for an independent examination of the Committee’s submissions by an appropriate person with legal experience. 21. Further to negotiations between the Government and the Committee, an agreement was reached on the appointment of an independent person to review the case made by the Committee for a further inquiry. In May 2008 the appointment of Mr Paul Coffey S.C. was agreed. On 10 July 2008 the Government established the independent “Coffey” review of the Committee’s case for a renewed inquiry to establish the cause of the fire. The terms of reference were: “2. ... [Mr Coffey] shall: - consider the [Report of the Tribunal]; - consider all the issues which are raised by the [Committee], as are summarised in the submission “Nothing But The Truth” and in the supplemental submission to “Nothing But The Truth” (delivered on the 4th of May, 2007), and all the evidence and submissions as may be presented on their behalf as he considers necessary and relevant to the case for a further inquiry. - In the course of a private examination of the issues, (a) meet such people and secure such advice as he considers necessary to ensure complete understanding of the matters and issues. (b) facilitate a detailed presentation by the [Committee] of the case for renewed inquiry as they see it. (c) have such regard to as he thinks appropriate to submissions, if any, as may be made by other persons/parties including any Government Departments or Agency or the owners of the Stardust together with any observations on or response thereto from the [Committee]. - carry out such inquiries or investigations that he, in his sole discretion, considers necessary for clarification of the issues raised by the [Committee], but he shall not initiate any further investigations into the cause of the fire. 3. Following his assessment of the issues raised by the [Committee] and related matters, as set out above, Mr Coffey shall, without undue delay, report to the Government and shall therein make a recommendation as to whether a new inquiry should be established and may make such other recommendations as he considers appropriate.” 22. Mr Coffey advertised in local and national newspapers seeking submissions. He heard submissions from all interested persons and parties. The Committee, whose legal representation was financed by the Government, gave oral evidence over 3 days and made written submissions. A large body of documents was gathered, all of which were made available to the Committee’s legal representatives. Mr Coffey considered he was entitled to assess not only the applicants’ new evidence, but any other issue pertinent to the question of the need for a further enquiry. 23. The Committee summarised the issues raised by it as follows: “(1) that the Tribunal’s finding of fact that the fire was probably caused deliberately is based on hypothesis and not established by evidence and is for that reason inherently unsatisfactory; (2) that the hypothesis upon which the Tribunal’s finding is based is itself demonstrably flawed because it cannot be reconciled with the known facts of the fire including evidence accepted by the Tribunal; (3) that new expert and factual evidence establishes as a probability that the fire began in the Lamp Room and spread via the Store Room to the West Alcove; (4) that the “methodology” used by the Tribunal was flawed insofar as insufficient scrutiny or examination was given to the possibility that the fire originated in the roof space having regard to the very considerable quantity of combustible material that was contained in the Store Room and the fact that the Store Room was effectively in the roof space; (5) that only the very considerable fuel load in the Store Room could have provided the basis for the rapid development of the fire which engulfed the Stardust within minutes.” 24. On 23 January 2009 the Coffey Report was published. Having reviewed the evidence and submissions of the Committee together with the Tribunal’s database of material, Mr Coffey concluded (paragraph 5.8) that the Committee had established a prima facie case that: “(1) the Tribunal’s finding of fact that the fire was probably started deliberately is on its face a mere hypothetical explanation for the probable cause of the fire and is not demonstrated by any evidence that the fire was started deliberately; (2) in the absence of any such evidence and on the basis of new expert evidence relating to the early collapse of the ceiling in the West Alcove, the explanation cannot be demonstrated to be objectively justifiable.” 25. Mr Coffey was further satisfied, on a prima facie basis, that: “(1) that neither the Tribunal nor the Committee have identified any evidence which can establish the cause of the fire; (2) that the new and other evidence relied upon by the Committee at its highest merely establishes that the fire began in the roof space but does not establish its point of origin or cause.” 26. As to the Committee’s call for a new inquiry to establish the cause of the fire, Mr Coffey considered that, in the absence of any identified evidence which could establish its cause, the issue was whether a new inquiry would serve any useful purpose. He continued: “5.11 It could be argued that a further inquiry would at least establish whether the fire began in the West Alcove or in the roof space. However, it seems to me that at a remove of nearly three decades from the date of the fire and in the absence of any identified evidence which can establish the cause of the fire wheresoever it arose, the public interest would not be served in establishing a further inquiry solely for that purpose. It could also be argued that there should be a further enquiry to establish the probable cause of the fire. However, it seems to me that in the absence of any identified evidence capable of establishing the cause of the fire, such an inquiry can only at best produce a hypothetical finding neither capable of proof or disproof and therefore of no obvious or any forensic value.” 27. Mr Coffey went on to point out that: “5.12 The real difficulty is one of record and lies in the fact that despite having made a finding based on the absence of evidence that “the cause of the fire is unknown”, the Tribunal has failed to acknowledge and record this finding as its conclusion as to the cause of the fire. Instead the Tribunal has only recorded its finding as to the probable cause of the fire. In so concluding and in the absence of any evidence that the fire was started deliberately, the Tribunal has placed on the public record a finding of probable criminal wrongdoing which is prima facie speculative and fraught with evidential and logical difficulties. Moreover, insofar as it is stated to be a “finding of fact”, the finding is so phrased as may well give the mistaken impression to a reasonable man or woman in the street that it is a finding established by evidence that the fire was started deliberately and not a mere hypothetical explanation for the probable cause of the fire.” 28. Mr Coffey found this to be profoundly unsatisfactory to the survivors and the bereaved who, through the Committee, argued that such was the scale of the disaster that it has become a matter of communal if not national history to an extent that engaged a public interest in ensuring that the public record was factually accurate and established by evidence. 29. However, the new and other evidence relied on by the Committee, at its highest, established that the cause of the fire was unknown, a finding already made but not properly acknowledged and recorded by the Tribunal. As to how to correct this, Mr Coffey proposed alternative solutions. Since the Tribunal was established by Parliament, the Government could consider whether it could correct the public record by placing on the record of the Houses of Parliament an acknowledgement of the Tribunal’s findings that there was no evidence that the fire was started deliberately and that the cause of the fire was unknown; or, if such an acknowledgement could not be made by the Government, a further limited inquiry would be needed but simply to clarify the public record in this limited respect. 30. Finally, noting the failure by the State to act on the earlier recommendation of the Compensation Tribunal, Mr Coffey recommended that a committee be formed to monitor the progress of victims and to ensure that counselling and medical treatment, where necessary and appropriate, was afforded to survivors and the bereaved at the expense of the State. 31. On the day the Coffey Report was published, the Government published a statement acknowledging and accepting the conclusions and recommendation of the Coffey Report. On 3 February 2009 and 9 July 2009 Dáil Éireann (the House of Representatives) and Seanad Éireann (the Senate) respectively, passed motions acknowledging and accepting the conclusions and recommendation of the Coffey Report and, notably, that the cause of the fire was unknown and that arson was merely a hypothetical explanation which had not been demonstrated. 32. In October 2009 the Government published a Public Notice concerning Counselling Services which began operating in February 2010. 33. A building regulation regime was introduced by the Building Control Act 1990 and the Building Regulations and Building Control Regulations 1991. The Fire Services Act 1981 was brought into force in 1985 and updated in 2003 and Regulations were also adopted thereunder which, inter alia, made locking of exits and blocking escape routes from places of assembly an offence. The Licensing of Indoor Events Act 2003 provided for increased powers for fire authorities to inspect premises, issue warning notices and, where necessary, serve closure notices. A series of Codes of Practices and Guidelines have been published by the Department of the Environment providing fire safety advice for persons in control of premises. Following a full review of fire services in Ireland in 2001, the Fire Services Change Programme was implemented to further enhance fire safety enforcement powers. A Major Emergency Development Programme (2006-2009) was introduced to improve responses to major emergencies and a National Directorate for Fire and Emergency Planning was formed in 2009. The numbers of fire services’ staff sharply increased and fire services funding and training significantly improved. Following the criticisms of it in the Tribunal Report, Dublin Corporation significantly increased staffing especially in fire prevention, established a training centre and purchased new fire stations and equipment as well as a new communications centre.