The State is obliged to establish a commission of inquiry into the Garda failure to effectively investigate the murder of Co Louth forestry worker Seamus Ludlow, counsel for his family has told the Supreme Court.
It is “beyond doubt” there was an inadequate Garda investigation into this “horrific, sectarian” murder and the family want a rigorous independent investigation into why there was “a cover up” and tolerance by this State of the perpetrators of the murder, Ronan Lavery QC said on Thursday.
He was opening an appeal before the seven-judge court brought on the family’s behalf by Thomas Fox, a nephew of Mr Ludlow, over the Court of Appeal’s rejection of their case.
The Attorney General is heading the State’s legal team in opposing the appeal. It centres on important issues concerning the extent of the State’s obligations under the Constitution and Article 2 of the European Convention on Human Rights to provide a legal and administrative framework that effectively protects life and provides an effective means of investigating deaths and holding those responsible to account.
Mr Ludlow, aged 47 and with no paramilitary connections, was shot after leaving a bar in Dundalk and his body was found on May 2nd, 1976 in a lane near his home.
Despite the RUC having identified suspects north of the Border, the Garda investigation was suspended after three weeks. The family say gardaí failed to pursue an important line of inquiry – that Mr Ludlow was an innocent victim of either loyalist or British forces who mistook him for a senior member of the IRA.
A 2004 report by retired High Court judge Henry Barron stated the murder was “a random, sectarian killing of a blameless Catholic civilian by loyalist extremists”.
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 maintains commissions of inquiry cannot progress the murder investigation and says the DPPs on both sides of the Border had both recommended no prosecutions concerning four persons named in the Barron report as suspected perpetrators of the crime.
In 2015, then minister for justice Frances Fitzgerald apologised to the family over the “inexcusable” handling of the Garda investigation but said there was no “new or substantial” information warranting commissions of inquiry.
On Thursday, having discussed issues concerning the scope of the appeal with Mr Lavery and Attorney General Paul Gallagher, the Chief Justice Mr Justice Frank Clarke noted the appeal has potential implications for rights and obligations extending well beyond this particular case.
Mr Lavery had said the family are not seeking, in this appeal, to require the State to investigate the actual circumstances of Mr Ludlow’s murder and their focus is on the inadequacy of the Garda investigation, he noted.
The Chief Justice said the court would first hear arguments concerning whether the family can rely on the ECHR when Mr Ludlow was murdered before the ECHR had effect in domestic law here via the ECHR Act 2003.
In submissions, Mr Lavery argued the critical date for triggering the State’s obligations under the Convention is 1953 when Ireland ratified the Convention. The State also has a procedural obligation to investigate an unlawful death prior to the critical date as long as there is a temporal connection and a significant portion of the procedural investigate steps have been taken after the critical date, he argued.
Conor Power SC, also for the State, said there can be no breach of statutory duty under the 2003 Act before the Act entered into force here on December 31st 2003. The right to an effective remedy under Article 13 of the Convention does not alter the fact the Act cannot be applied retrospectively, he added.
During Thursday’s hearing, the court heard the Garda force is co-operating with an independent review by Jon Boutcher, a former chief of Bedfordshire police, into the activities of the loyalist Glennane gang, which included members of the RUC and UDR.
The gang is believed to have killed up to 120 Catholics in the north and the murder of Mr Ludlow forms part of the Boutcher review.
The appeal has been adjourned to next Thursday when the court will hear arguments on the other issues raised.
