Thursday, 11 July 2019
Criminal Justice (International Co-operation) Bill 2019: Committee Stage (Resumed) and Remaining Stages
Section 3 deals with Northern Ireland Troubles-related inquests and also what is referred to as "a designated United Kingdom inquest." The legislation is relatively simple in how it will operate. A coroner in Northern Ireland or in a designated inquest in Britain will make a request to the Garda Commissioner and will provide the Garda Commissioner with a list of questions he or she wants answered and the Garda Commissioner then makes a decision whether to comply with the request or to refuse the request. One of the grounds on which a Garda Commissioner could refuse a request is if he or she thought the questions were outside the knowledge of An Garda Síochána or were inappropriate. However, I would have thought that in the vast majority of scenarios, the Garda Commissioner would accede to the request. If he or she refuses, he or she shall refuse on specified grounds, which are set out in section 3(4). For instance, I know Deputy Ó Laoghaire is concerned about a refusal of a Garda Commissioner to provide a member of the force to answer questions but say a Garda Commissioner makes such a refusal, he must do so on the basis of the three examples set forward in subsection (4), namely, that if he or she were to do so it would: prejudice the security of the State; prejudice a criminal investigation; or otherwise be inconsistent with the functions of An Garda Síochána under the Act. If the Garda Commissioner decides to refuse that, it is open to the coroner to judicially review that decision. For that reason, the amendment is unnecessary, and even if it was necessary, I would have concerns about the amendment because under this process, a judge is to be nominated by the President of the High Court, and this judge is to have an in camera hearing with the Garda Commissioner. That sounds like a meeting between the Garda Commissioner and the High Court judge in camera where no one gets to hear what is said. That is not consistent with the principles of justice. It would also expressly exclude the coroner from being present at that hearing so that he or she could argues his or her side of the case.
On balance, it is an unnecessary amendment and if it was inserted into the legislation it would open up all sorts of issues in respect of section 6(c) of the proposed amendment, which talks about there being "a hearing in camera with the Garda Commissioner" and the judge with no one else there. That is a recipe for problems.