Thursday, 11 July 2019
Criminal Justice (International Co-operation) Bill 2019: Committee Stage (Resumed) and Remaining Stages
I thank the Deputy for tabling the amendment and for his comments thereon. I must disappoint him by saying I have three fundamental problems with it. First, from a drafting point of view, it is unclear. Second, from a practical point of view, I see difficulties in the outworking of the amendment. Third, and most importantly, it seems to go against the grain of the main objectives of the Bill.
On the drafting, the amendment is not consistent with the mechanism outlined in section 3. The amendment, as stated by the Deputy, provides for a High Court judge, following a review of the decision, to direct the Garda Commissioner to accept the coroner's request for assistance that he or she had previously refused. However, there is no other amendment to any other part of section 3 to either set aside the Garda Commissioner's original decision or to require the examining judge in subsection (9) to take account of the outcome of the High Court judge's review. Again, it is not clear how a review of an appeal by a judge of the High Court, as proposed in this amendment, may be binding, for example, on the other High Court judge who is conducting the examination of the Garda witness. Again, there are legal problems with this that do not add up from a practical perspective.
Even if the amendment was consistently reflected in the section, and this is the most important reason I have a problem with it, it is contrary to the overall objectives of the section. Section 3 is designed to foster a further spirit of co-operation between the Northern Ireland coroner and the Garda authorities to allow the coroner in Northern Ireland access to Garda testimony in a form that will be admissible in the inquest in Northern Ireland. The practical outworking of this is that the Garda and the coroner would work closely on the request for assistance. The application of the mechanism to take Garda testimony would always be preceded by a significant measure of co-operation, with the exchange of information under a formal co-operation agreement concluded under section 5. A conflict between the Garda Commissioner and the coroner would not arise at the stage of the application of the mechanism in section 3. I invite the Deputy to check the reasons listed in section 3(4) for the Garda Commissioner to not accede to a request for specific information. To my mind, these reasons are fundamental to the functions of An Garda Síochána, namely, the protection of life, the vindication of human rights, the pursuit of justice and the preservation of peace and security in this State for all its residents and citizens. Section 3(4) protects the integrity of these Garda functions.
The amendment, as proposed, would be unprecedented in cross-Border assistance in criminal justice matters. I point out that participating states and agencies enter into co-operation arrangements in a spirit of trust and confidence but at all times they remain in a spirit of accommodation and co-operation. While some restrictions are necessary, such as in section 3 of the original Criminal Justice (Mutual Assistance) Act 2008, this would be in order to ensure the integrity of national sovereignty and the criminal justice process but these are rarely invoked because of the high level of engagement and trust that has been cultivated by the participants.
In this regard, I acknowledge the high degree of trust between the PSNI in Northern Ireland and An Garda Síochána here. That is a level of trust that is likely to be maintained in the context of the relationship with the coroner. I say that because the Garda is much accustomed to operating within these accepted frameworks. Again, I invite Deputies to agree with me that the level of co-operation, trust and confidence in terms of engagement between An Garda Síochána and the PSNI has never been so positive and good. That trust and engagement is never undermined by the threat of a judicial process or a challenge to the integrity of the decision maker. For those reasons, I am not in a position to accept the amendment.