Thursday, 11 July 2019
Criminal Justice (International Co-operation) Bill 2019: Committee Stage (Resumed) and Remaining Stages
I move amendment No. 2:
In page 5, between lines 2 and 3, to insert the following:“(6) (a) Where a decision is made by the Garda Commissioner to refuse in full or in part the request for assistance, the Coroner who made the request may seek a review of this decision by a Judge of the High Court.
(b) The request for a review shall be made in writing to the President of the High Court, who shall nominate a Judge of that Court to conduct the hearing.
(c) The Judge nominated under paragraph (b), shall hold a hearing in camera with the Garda Commissioner, who shall outline the basis of his refusal.
(d) The Judge nominated under paragraph (b)may direct the Commissioner to accept the request for assistance, or to accept parts of the request for assistance previously refused, if they are satisfied that it is in the interests of justice to do so, and if they are satisfied that to do so would not—(i) be likely to prejudice the sovereignty, security or other essential interests of the State,
(ii) be likely to prejudice a criminal investigation, or criminal proceedings, in the State, or
(iii) otherwise be inconsistent with the functions of the Garda Síochána under section 7 of the Act of 2005.”.
Section 3 relates to the Bill’s most substantive provision regarding the procedures which will exist for the Garda, as an institution, to co-operate and to provide testimony through a coroner’s inquest. It deals with how it would accede to a request from an inquest which would involve a garda of a rank not lower than chief superintendent being questioned by a judge in the High Court and then it being witnessed by the coroner, or his or her representative, who has requested the information.
The procedure is that the request comes into the Garda Commissioner. The Garda Commissioner consults the Minister. The Garda Commissioner then makes the decision to accept the request for assistance, refuse it or accept it in part. In doing so, having consulted the Minister, the Garda Commissioner must be satisfied that doing so may likely prejudice the sovereignty, security or other essential interests of the State, may likely prejudice a criminal investigation or criminal proceedings in the State, or otherwise be inconsistent with the functions of the Garda Síochána under section 7 of the Act of 2005.
The procedure is all well and good. However, the reality is the decision is ultimately that of the Garda Commissioner. There is no scope for review or for oversight of that. It gives the Garda Commissioner a considerable amount of power. Given the weight and importance of these inquiries for families and survivors who are seeking the truth about Troubles-related deaths or incidents, I believe the coroner should be entitled not to agree with what he or she may consider an unfair decision.
This amendment, through a careful mechanism, provides for a coroner who had his or her request refused to seek a review of this decision by a judge of the High Court. This judge, who would be nominated by the President of the High Court, would hold an in camerahearing with the Garda Commissioner who would outline the basis for his or her refusal. The same judge would have to have regard to the same three considerations, namely, it may likely prejudice the sovereignty, security or other essential interests of the State, may likely prejudice a criminal investigation or criminal proceedings in the State, or otherwise be inconsistent with the functions of the Garda Síochána under section 7 of the Act of 2005.
Therefore, the judge would then have to make a decision as to whether to accept the argument of the Garda Commissioner and whether he or she believes the Garda Commissioner should co-operate with the request from the coroner or whatever organisation is seeking that request. In the context of what we are talking about, namely, the weight of the situation and the sensitivity involved, it is right for the coroner to have the opportunity, in a careful way, to have this decision reviewed and reconsidered. Such judge-led oversight is not unusual for legislation such as this, whether in this jurisdiction or elsewhere. It is a proportionate and carefully weighted amendment but one that is important to ensure every opportunity is given to the coroners to have maximum co-operation from An Garda Síochána in an inquest.