Pat Rabbitte (Dublin South West, Labour)

I thank the Ceann Comhairle for calling this matter. Yesterday and this morning I raised questions with the Taoiseach about the collapse of the case against Dermot Laide in the Circuit Criminal Court and the responsibility of Government for the State pathology service. The Taoiseach's replies were his characteristic mixture of evasion and obfuscation. He pleaded that he had not been briefed, that the Minister for Justice, Equality and Law Reform was scheduled to deal with the matters — at a time when he patently was not — and finally that no one could answer the questions because they were solely for the Director of Public Prosecutions.

However, it is not the case that the Government or the Minister can hide behind the independence of the DPP. The State pathology service is provided by medical experts directly recruited and contracted to the Department of Justice, Equality and Law Reform. There is no doubt that the former State pathologist, Dr. John Harbison, provided the State with many years of dedicated and expert service. However, Dr. Harbison is now ill and is unlikely to give evidence in court again. That gives rise to one question: how to substitute for Dr. Harbison's inability to give evidence in future cases about post mortems conducted years ago and about the reports that he wrote years ago on those post mortems.

At one stage, the Minister, Deputy McDowell, was giving the impression he could re-jig the preliminary deposition procedure to preserve the evidence in such cases. However, when the real and obvious difficulties were put to him, his resolve immediately collapsed and he conceded that an accused person's right to test in court the evidence against him or her would always have to take precedence.

At the same time, the Minister was dismissing the idea of having two State pathologists in future. However, by this morning he had become converted to the proposal and was committed to its introduction. The Taoiseach has repeatedly dodged the other question, which is as important — is there any issue as to Dr. Harbison's capacity to have conducted post mortems, to have formed opinions and written reports and to have given evidence in cases that have already been heard and decided?

I ask this because Dr. Marie Cassidy's expert opinion in the Laide case flatly contradicted that of Dr. Harbison. It was not a difference in emphasis or detail within the normal range of variety that one would expect between experts. It was not a difference of opinion that might have led to a manslaughter conviction rather than one for murder. It was much more serious. Dr. Cassidy said in so many words that she could find no cause and effect at all, that there was no evidence that the injuries suffered by Brian Murphy had resulted in his death in the first place. Dr. Cassidy's evidence was never tested in court and now never will be, but if she is correct, it means that Dr. Harbison's opinion and evidence at the first trial was wrong.

Despite the presentation to the media over the weekend, it is now clear that the central problem was not so much that Dr. Harbison could not give evidence but that the prosecution could no longer credibly stand over his evidence. In those circumstances, the DPP's decision to collapse the re-trial was inevitable. Even if Dr. Harbison had been available to give evidence, it is impossible to see how the DPP could have proceeded with that evidence so fatally undermined.

We must face the appalling prospect that the possible or even probable explanation for the disagreement between these two professionals was that Dr. Harbison's health was already in decline when he formed his opinion on Brian Murphy's cause of death. If so, we need to know who knew about that, when they knew and what they did about it. How many post mortems, more than 100 of which he was expected to perform each year, and how many cases, if any, where he gave evidence may have to be reviewed as a result?

The Minister, Deputy McDowell, now says that he was told some months ago — I hope he will state how many months ago — that Dr. Harbison's ill health would affect his future ability to give evidence. Was he told what that ill health was, when it was first identified, or when it might first have impacted on the performance of professional duties? Was he told that not just Dr Harbison's future availability but his previous competence might fall under scrutiny? Given the extensive disclosure obligations that the DPP must discharge to the defence before and during a trial, when did the Department first inform the Office of the Director of Public Prosecutions of potential problems with Dr. Harbison's evidence?

I repeat, despite the Taoiseach's attempts to muddy the waters, that this is the responsibility of the Minister, Deputy McDowell, not that of the DPP. The DPP can only be accountable for what he does with information once he receives it. The accuracy and integrity of the information provided by the State pathology service is the direct responsibility of the Minister for Justice, Equality and Law Reform. Last night a spokesperson reassured the public that no other cases would collapse like the Dermot Laide one because of the infirmity of Dr. Harbison. However, this morning the Taoiseach intervened to make clear that no such statements had been issued on his behalf. He has left the Minister, Deputy McDowell, standing alone on this issue.

I cannot remember any issue on which Government members have become so clearly, rapidly and chaotically at sixes and sevens, both between themselves and, in Minister McDowell's, case, between his views one minute and a minute later. However, the question is basic and it is within the Minister's competence to answer. Did the issues about either Dr. Harbison's availability to give evidence or about the reliability of that evidence arise for the first time in the context of the Dermot Laide case? If we can finally have a clear and comprehensive answer to that single question, two days of repeating it will have resulted in progress.

It might have been more appropriate, although time-consuming, to have a question-and-answer session under a Private Notice Question to convey some of the questions that professionals have raised with my office and the undoubted concern in the public sphere. I am sure the Minister, who attended a committee meeting rather than the House, is quite well briefed on the questions, and I hope, given the unusual arrangement of a three-person Adjournment debate, that he will have time to deal with the answers and reassure the public.

See this speech in context