Mr. Michael Finucane:

If I was asked to suggest three things to the Minister for Justice and Equality that she might consider for change, the first thing I would suggest that she begin the process of repeal and reform of the 1962 Act as a matter of urgency. She should begin a process of consultation with all relevant agencies affected by that process and be prepared for a great deal of resistance.

Surprisingly, and maybe even counterintuitively - not from the institutions one might think - in my experience of dealing with inquests and post-death investigations, some agencies and institutions have moved a huge way towards accommodating the process of post-death investigation where a connection with that agency has been identified. For example, An Garda Síochána has moved a huge distance in providing information and being more open in its engagement with post-death investigations. It also has assistance from GSOC, which provides cover in terms of independence, expertise in logistics and so forth. There is perhaps less movement with regard to the prison system because it does not have an ombudsman. There is a prison ombudsman in Northern Ireland and one for England and Wales. I think there is one for Scotland also. There is none here. There is an inspectorate, but that is a review system and is not the same as an investigative ombudsman. That should probably be looked at in terms of providing not only assistance but also reassurance to both the prison system and the public that investigations are occurring on an independent footing and are capable of being prompt and effective and creating meaningful change.

Perhaps surprisingly, I would expect to see considerable resistance in the medical sector. There can be no more difficult post-death investigation than trying to find out what happened to a relative who has died in a hospital. That might seem like a shocking statement, but I remind everybody here of the recent cases of infant deaths in maternity units in which the Minister for Health subsequently went on the record to say that families were lied to by the health authorities charged with responsibility for mothers and babies in those hospitals. If people can lie to a family in a maternity situation, anything is possible. One of the great incentives for reforming the system of post-death investigation would be to remove the likelihood that anyone would get away with that sort of behaviour, thereby creating an incentive to co-operate with an investigation rather than frustrating it, because at the moment the nature of the investigation is very much in the eye of the beholder. Bereaved relatives may get lucky and find out what happened, or maybe they will not. At the moment the health establishment has many barriers behind which to hide. One that was changed recently was the in-camerarule in courts. The confidentiality of medical information was hidden behind the in-camerarule in order to prevent disclosure of important and sometimes troubling information in many cases, which is not why the in-camerarule was devised.

That is the sort of institutional resistance we will experience, and there will be others, but it has to be met and accommodated. I am not saying anyone should necessarily lose the ability to be on speaking terms with a particular institution, but these difficult conversations need to take place. Going through a post-death investigation is difficult, but if there is an objective at the end of it to try to improve things, which may involve assigning responsibility, then we would be on the road to a great improvement in the system.

The second thing I would suggest to the Minister is to review how the Coroners Act is framed and how certain statutory provisions are worded. For example, sections 25, 30 and 31 all refer to what the coroner must not do, including things that cannot be examined and findings that cannot be made. This sort of preclusive language is not helpful for post-death investigations. The new legislative regime needs to invest a great deal more discretion in coroners, who may decide to delay things, decline to release something or postpone the public examination of a particular area for good reason.

One of the problems in the current legislation, which may even come up against a successful challenge in Strasbourg, is that the language is absolute. A long criminal investigation by An Garda Síochána, for good reason or bad, precludes an inquest, and this can result in delays of literally years with no information being provided to family members and no scrutiny of the processes in public. For example, the examination of a file in the Office of the Director of Public Prosecutions - how it happens, when it happens and why it takes so long - is never subject to public scrutiny in a Coroner's Court because the Director of Public Prosecutions never appears in the Coroner's Court. A family simply sits and listens to the recitation of section 26(2), outlining that while a criminal prosecution is being contemplated the inquest cannot proceed, and that is it. A coroner has no discretion in the matter. When set against the absence of information as well, that is a problem.

My third suggestion would be the development of binding codes of practice to address the way in which coroners' inquests function throughout the country. I have appeared in Dr. Brian Farrell's court many times. It is obvious to anyone appearing in his court that the standard he applies is the high watermark of inquests within the current framework. I was involved in the Ramseyer case, and at the same time as I was going to Dr. Farrell's court asking for information and getting it, I was also litigating the point on behalf of the Ramseyerfamily because of the refusal of a coroner outside Dublin to give me any information. I had another experience in County Kerry in which the local coroner initially refused to give me information, but after some correspondence and prolonged discussion, I eventually got the information I was seeking. That sort of variation in standard practice remains a problem today. The uniformity of investigation standard needs to be addressed. It is no good having an excellent investigative service in Dublin when everyone else outside Dublin is dependent on getting whatever they can manage or whatever some local legal representative is capable of digging out of the local coroner with extreme and unnecessary effort. It needs to be standardised.

Ultimately, the incentive for the Legislature and the Government is that if this is not addressed, somebody will end up in Europe getting a ruling and then the Oireachtas will need to legislate under pressure. There are far too many cases of deaths and far too many deficiencies in the system for it to be left unaddressed any longer.

Savita Halappanavar may have focused attention on the nature of post-death investigation, and that may not even meet the Article 2 standard. However, that case got what it got in terms of independent investigation and experts brought in from outside Ireland, because it was a matter of world news interest and the health authorities felt a level of pressure they had not felt previously.

There are many more cases out there. Many more people are affected. They will not even get what the Halappanavar family got. If that is deficient, then how many more potential Article 2 problems are out there? I would say there are a lot of such cases. There is no ruling against Ireland at the moment. This is another reason that now is the time to steal a march on a problem that may well be coming down the line.