Butterly tried to halt ‘unlawful killing’ verdict
Ex-manager’s legal team made last-minute challenge to coroner’s decision to allow for finding
LAWYERS for former Stardust manager Eamon Butterly made a dramatic last-minute application to prevent jurors from making a finding of unlawful killing, it can be revealed.
Before the Easter weekend, just days before the jury was to retire to begin considering their verdicts, Mr Butterly’s lawyers brought a High Court challenge to the coroner’s decision to allow the verdict and seeking for the inquest to be put on hold pending the outcome of the challenge.
The application, which was rejected by Judge Tony O’Connor, could not be reported on prior to yesterday’s verdict of unlawful killing in the case of all 48 victims, as it could have influenced the jury’s deliberations.
A barrister acting for victims’ families argued that the application was an attempt ‘to undermine the entire inquest process itself’.
Paul O’Higgins, instructed by Dómhnaill O’Scannaill for Mr Butterly, accepted that the submission had come ‘very late in the day’.
Counsel said that Mr Butterly was ‘so much in focus, in particular following the closing of the case on behalf of those arguing for a verdict of unlawful killing, that it should not be allowed’.
He said it was his contention that any such verdict would be unlawful having regard to the provisions of Section 30 of the Coroner’s Act – that questions of civil or criminal
‘In breach of my clients’ rights’
liability shall not be considered or investigated at an inquest.
Mr O’Higgins said that to arrive at a verdict of unlawful killing, the jury must consider the actions of persons – Mr Butterly in particular – who were said to have been guilty of a very high degree of negligence.
In relation to the closing speeches at the inquest, Mr O’Higgins said the five addresses given by counsel representing the families had been ‘a co-ordinated analysis of the evidence homing in primarily on Mr Butterly’.
Counsel said it ‘could not be clearer’ that this was directed towards associating Mr Butterly ‘front and centre’ with the verdict which was being sought to be brought in.
Responding to the application made on behalf of the former Stardust manager, Seán Guerin SC contended that the submission was not only late but was ‘out of time’. The lateness was ‘not without significance’, he said.
Counsel said the families he represents had, through their legal representatives, taken the trouble of ensuring the coroner had given a ‘clear direction’ on the available verdicts having received written and oral submissions on that issue before the jury was addressed.
‘Precisely so that those addresses would acknowledge and be respectful of your ruling,’ he added.
He said all parties, including Mr Butterly’s legal representatives, had adequate time to prepare for their submissions.
‘This is an application that’s made wholly out of time, in clear breach of my clients’ fair procedures rights at this inquest,’ Mr Guerin said.
He further submitted: ‘It’s an attempt to undermine not just the ruling that you made, it’s an attempt to undermine addresses that were made to the jury in light of that ruling, it’s an attempt in a sense to undermine the entire inquest process itself and it shouldn’t be allowed.’
After taking several days to consider her decision, coroner Dr Myra Cullinane refused the application that had been made on behalf of Mr Butterly.
The coroner said she had received a letter from Mr O’Scannaill on March 15 seeking once again to have the verdict of unlawful killing removed from the jury prior to their deliberations and noted that this request was based on the closing submissions made on behalf of the families.
‘Firstly, in relation to the timing of this application, it would appear that these submissions were not confined solely to responding to the possible effect of the closing submissions on behalf of the families,’ she said.
She said it was clear they sought to revisit her earlier ruling more generally, with reliance being placed on Section 30 of the Act and the decision of Judge Charles Meenan. In 2022, before the inquests got under way, Judge Meenan had rejected an earlier attempt by Mr Butterly to prevent jurors from making findings of unlawful killing. However, the judge said, this can only be in ‘appropriate circumstances’ and only where no person is identified or identifiable.
Dr Cullinane said that although there were justifications made for the lateness of the application, those justifications ‘were of insufficient weight to overcome the delay in bringing this second application’.
‘Insofar as any reliance might be placed on the closing submissions on behalf of the families as altering the circumstances sufficient for me to reconsider my earlier ruling, I’m not satisfied that this is the case,’ said the coroner.
She said no objections had been raised at the time of the closing submissions by any party and that there had been no interjection on behalf of Mr Butterly.
‘Nor did counsel or the solicitor for Mr Butterly seek to make any closing submissions, despite being offered the opportunity so to do,’ the coroner added.
She noted that Mr Butterly was represented in the proceedings at all times by his solicitor, that he engaged with the procedure set out by her in relation to the question of verdicts which should be left open to the jury, and that she had received both written and oral submissions from Mr Butterly’s solicitor on this issue.
‘It is not, in my view, appropriate for an interested person to seek to have the issue reopened where I’ve determined it on the basis that they have now instructed additional legal representatives who may make different or additional legal arguments that could have been made prior to my initial ruling,’ she stated.
The coroner went on to say that no new matters had been raised which had not previously been considered by her. She did not accept that Section 30 had been given ‘insufficient consideration’ during the course of the hearing in relation to the availability of verdicts or that it was not fully traversed in her ruling.
‘I relied on the jurisprudence of the superior courts which states that matters which may, in another forum, amount to questions of civil or criminal liability can nonetheless be considered in an inquest as long as the ultimate outcome does not seek to attribute blame or fault to an identified or identifiable person,’ she said.
In relation to the request to consider making a Section 62 application to the High Court, the coroner said she could not see ‘the need or merit’ in such an approach at this juncture.
‘In my view, what is at issue here is not a question of law but the application of the law to the facts which were established at these inquests and I’ve made a determination in that regard,’ she said.
‘Entitled to make a ruling on the law’
‘I’m the arbiter of the law in these inquisitorial proceedings and I’m entitled to make a ruling on the law even where the legal issues to be determined are difficult.’
On March 27, lawyers for Mr Butterly then made a separate application before the High Court to halt the inquest.
At an Easter vacation sitting of the court, Mr Butterly’s lawyers sought permission to apply to quash the coroner’s decision allowing the jury consider a verdict of unlawful killing.
The application was opposed by the victims’ families and the High Court heard that Dr Cullinane said she intended to continue to charge the jury the next day as planned.
On March 28, Judge O’Connor refused to grant Mr Butterly permission to bring his challenge against the coroner’s decision to allow the jury to consider a verdict of unlawful killing. He also rejected the application for a stay on the inquest proceeding pending the outcome of any such challenge.