The family of Co Louth forestry worker Seamus Ludlow have lost their case aimed at having the State set up two commissions of inquiry into the Garda investigation of his “callous sectarian” murder more than 40 years ago.
In her judgment today, Ms Justice Mary Faherty referred to the “human tragedy” caused to the family by the 1976 murder and the “untold hurt and injustice” caused by the “well-documented” and acknowledged failure of gardaí to follow up on information provided to them by the RUC after the murder.
However, there is no right to an inquiry and the courts cannot force the executive to set up any kind of inquiry, she said.
While she had sympathy for the family, who had “very understandable” concerns over the failings of the Garda investigation, the refusal to set up commissions was a decision open to the Minister for Justice to make and was not “irrational” or “fundamentally at variance with reason or common sense”, she also held.
Thomas Fox, a nephew of Mr Ludlow who took the proceedings, along with other family members and supporters were in court.
Through their solicitor Gavin Booth, the family said afterwards they were “disappointed, frustrated and upset” and would examine the judgment with a view to considering an appeal.
The proceedings against the Minister for Justice and the State were aimed at having the State establish two commissions of inquiry, as recommended by a 2006 Oireachtas Joint Committee based on a report of retired High Court judge Henry Barron into the murder.
Mr Ludlow (47), who had no paramilitary connections, was shot in 1976 after leaving a bar in Dundalk and his body was found near his home. The State says he was the victim of a “callous sectarian murder” and has apologised to the family over the conduct of the Garda investigation.
No-one has ever been charged in connection with the murder and the family say gardaí failed to pursue an important line of inquiry – that Mr Ludlow was a victim of either loyalist or British forces who mistook him for a senior member of the IRA. They believe he was an innocent victim of a loyalist death squad comprising a Red Hand Commando and two members of the Ulster Defence Regiment (UDR).
Despite the RUC having identified suspects north of the Border, the Garda investigation was suspended after just three weeks without explanation and on the basis of what a garda told the family were “orders from Dublin”, the family claim.
They also allege gardaí spread unfounded claims Mr Ludlow was killed by the IRA for informing and they, the family, had known about the planned killing beforehand. The IRA denied any involvement.
The family said the Oireachtas Committee had said 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 commissions of inquiry could address such issues, they maintained.
In her detailed judgment on Friday, Ms Justice Faherty dismissed claims based on the family having a legitimate expectation the commissions would be established. She agreed with previous judgments which found there is no right to have an inquiry of any form established by the executive.
An inquiry cannot be forced on the executive by a decision of the courts and there was no lawful basis for Mr Fox to seek to bind the executive having regard to the recommendations of the joint committee, she said.
Even if an expectation was created by what was said by the joint committee, and she was not finding it was, it cannot bind the Minister.
She was also satisfied the minister gave due weight to the committee’s recommendations and, in deciding against establishing commissions, did not unduly rely on findings in the Barron report, including being hampered by the impact of time on recollections of others. The Minister also factored into the February 2015 refusal of an inquiry the fact senior gardaí acknowledged the failings in the Garda investigation, she said.
The judge also dismissed claims the family’s right to an effective investigation under article 2 of the European Convention on Human Rights (ECHR) was breached.
Article 2 was not engaged in the case, she held. This murder occurred in 1976 some years before the ECHR was given effect to here in late 2003 and article 2 is not concerned with “ascertaining historical truth” which was what was effectively sought by the family, she said.
The family are resigned to the prospect that those responsible for Mr Ludlow’s murder will not be prosecuted and what they want are answers for the State’s failures to follow up concrete information that might have led to prosecutions, she said.
The State had maintained the murder investigation remains open and commissions of inquiry could not progress that. It said an independent commission of inquiry into the murder culminated in the Barron report of 2006 which named four persons as the suspected perpetrators, but the Directors of Public Prosecutions on both sides of the Border had recommended no prosecutions be brought.
Costs issues will be decided later. Lawyers for the family said they should get costs against the case for reasons, including the public importance of the issues raised. It was in everyone’s interests that such an appalling murder be properly investigated, Ronan Lavery QC said. Conor Power SC, for the State, said it was not seeking costs against Mr Fox and each side should pay their own. He said no new law was involved and disagreed with Mr Lavery this was a test case.
