Former Stardust manager Eamon Butterly has claimed before the High Court that the coroner conducting new inquests into the Stardust disaster should instruct the jury it is not open to them to return an unlawful killing verdict.
Paul O'Higgins SC, who was opening Mr Butterly's challenge to the new inquests, said the jury should be told at the beginning that an investigation of unlawful killing "forms no part" of the process.
The coroner does not enjoy "unfettered discretion" in relation to this under the Coroners Acts and the Constitution, he said.
Counsel said it was a fundamental requirement of any such investigation by the coroner that the jury be told as much as they can be about the context of the deaths, but it must also be told an investigation of unlawful killing forms no part of it and it would be improper not to tell the jury that, he said.
Mr Butterly's lawyers say the "proposed targets of the claim of unlawful killing" put forward by lawyers for families of the deceased consisted of four named individuals and a company. Mr Butterly appeared to be the "only living natural person" among those, it is claimed.
It meant he would be "clearly named for the killing by implication if he and other persons in this group were to be found guilty of unlawful killing in the course of these inquests", it is also argued.
The court heard Dublin District Coroner, Myra Cullinane, conducted pre-inquest hearings during which the question of whether a jury could reach a verdict of unlawful killing became an issue. She refused to rule out the question of a verdict of unlawful killing, it is claimed.
New inquests
The setting up of new inquests came after then-Attorney General Seamus Woulfe, in 2019, directed they be held because there was an "insufficiency of inquiry as to how the deaths occurred, namely a failure to sufficiently consider those of the surrounding circumstances that concern the cause or causes of the fire".
Mr Butterly and his family owned the nightclub in Artane, Dublin when fire broke out leading to 48 deaths and 128 injured on the night of February 13th/14th, 1981.
There were a number of inquiries over the years including inquests in 1982 which recorded deaths in accordance with the medical evidence.
The families of the deceased have long campaigned for new inquests.
Mr Butterly brought his High Court proceedings following submissions to the coroner when she circulated a draft of "uncontroversial facts" last November, Mr O'Higgins said.
The case is against the coroner, the Minister for Justice and the Attorney General. The families of the 47 deceased represented before the Stardust Inquest, the Garda Commissioner, Dublin City Council and Patricia Kennedy, mother of Marie Kennedy, are notice parties in the case.
Gross criminal negligence
Phoenix Law, the solicitors representing most of the families, made submissions to the coroner’s November draft saying unlawful killing/unlawful death by gross criminal negligence should be considered in connection with all the circumstances of the fire including the management and conduct of the nightclub.
It was also argued that primary evidence should be called at the inquest in relation to these issues, counsel said.
Mr O'Higgins said his side never suggested that the way the Stardust was managed, insofar as it is relevant, should not be considered. However, it did not follow that the question of unlawful killing should be considered and it was outside the Coroners Acts to do so, he said.
The coroner, following her own legal advice in response to the Phoenix Law submissions, "expressed dubiousness" about some of those submissions and that it was inappropriate to rule on it at this stage, he said.
Counsel also rejected a characterisation by Phoenix Law that Mr O'Higgins had conceded in submissions on behalf of Mr Butterly to the coroner that an unlawful killing verdict could be given.
Mr O’Higgins also said the families had been granted free legal aid for the inquests which his client did not object to but Mr Butterly should be entitled to the same aid.
The case continues before Mr Justice Charles Meenan.
