Thursday, 30 July 2020
Civil Law and Criminal Law (Miscellaneous Provisions) Bill 2020: Second Stage
The provisions of Part 1 of the Bill are standard in nature and common to nearly all legislation. Part 2 of the Bill contains urgent amendments to the Coroners Act 1962. The main provisions at sections 7 and 8 provide new powers for the Minister to authorise temporary additional capacity in the coroner system as necessary to meet the risks and challenges arising from the Covid-19 pandemic.
Section 6 is as standard. Section 7 inserts a new section, 11B, into the principal Act, entitled "Assignment and appointment of temporary coroners in exceptional circumstances". This section applies where a coroner makes a written request to the Minister justifying the need for a temporary additional coroner in that coroner's district. The Minister must be satisfied, first, that exceptional circumstances arise due to the number or nature of deaths arising from a pandemic, a catastrophic event or other mass fatality occurrence; and, second, that the requested extra capacity is necessary to increase the number and progress of coroners' enquiries into deaths in the coroner's district. If so satisfied, the Minister may assign or appoint a temporary additional coroner to that district for a period not exceeding six months. This may be renewed each time for a period not exceeding six months on a new justified request from the coroner of the district. A temporary coroner under this section will have all the powers and duties of a coroner for the district concerned during the period of appointment or assignment, other than the power to appoint a deputy. He or she will be, effectively, acting as an additional coroner.
Section 8 inserts a new section, 13B, in the principal Act entitled, "Arrangements for coroners’ districts other than coroner’s district of Dublin". This section provides that in the exceptional circumstances already outlined where a coroner of a district so requests in writing, the Minister may authorise the deputy coroner of that district to act concurrently for the coroner during a period not exceeding six months, which may be renewed. The deputy must have consented to so act. The same justification is required for this request and any renewal as under section 7 of this Bill and the same arrangements in respect of powers, duties and costs apply. The proposed section applies only to coroner districts outside of Dublin. The reason is that in the Dublin coroner district the deputy coroner is already authorised to act concurrently with the coroner under a Dublin-specific temporary provision in section 13A of the principal Act, which is valid until 2022, and which was brought in by my predecessor as Minister for Justice and Equality, Deputy Flanagan.
Section 9 proposes to amend section 14 of the principal Act. The effect of the amendment is that a person appointed as a temporary coroner under the new section, 11B, must have the same qualifications as are already required for a person appointed to the office of coroner or deputy coroner.
I will now move on to the issue of reform of the law, and that concerning civil proceedings first. Section 10 of Chapter 1 of Part 3 provides for a definition of the term "civil proceedings". More substantively, Chapter 2 of Part 3 provides for the remote hearing of civil proceedings. At present, current social distancing rules are causing disruption to and difficulties for court hearings. This is leading to delays in the administration of justice. The current climate is particularly challenging for the courts service in managing the efficient and continued operation of our courts. I am sure the Deputies will agree with me that we must assist our courts and protect the well-being of those who engage with them.
Section 11 of this Bill enables a court to direct that any category or type of civil proceedings be conducted remotely. A court may make such a direction either of its own motion or on the application of any of the parties. Participants will take part in a remote hearing by electronic means and from a location other than the court itself, whether inside or outside the State. A court shall revoke a direction to participate in a remote hearing where, for whatever reason, it would be unfair to any of the parties to do so or it would be otherwise contrary to the interests of justice to do so. It shall be also an offence to make a recording of a hearing without the permission of the court. Additionally, a judge may participate in a remote hearing, notwithstanding the fact that he or she is not physically within his or her district or circuit. In summary, the conducting of remote hearings will be an extremely important tool to facilitate the efficient dispatch of court business. It will increase court efficiency and assist in overcoming the current difficulties.
Chapter 3 of Part 3 concerns the admissibility of business records in civil proceedings. The reforms in this chapter are based very much on the recommendations of the Law Reform Commission in its Consolidation and Reform of Aspects of the Law of Evidence report in 2016. They mirror measures already in operation in criminal law cases under the Criminal Evidence Act 1992. The commission's report considers that business records are possibly the most common form of hearsay evidence presented in litigation and their legal status is of particular importance. In the majority of cases and in the previous absence of a statutory basis, many litigants agree to admit documentary hearsay evidence in order to expedite proceedings or spare themselves an adverse cost order if the objection proves unfounded. However, in a minority of cases, certain litigants may insist on proof of each and every document. These cases have posed increasing difficulties for our courts in recent years and highlight the need for statutory intervention.
The commission's report recommends that records compiled in the course of business, because they are generally reliable, should be admissible in civil proceedings as an inclusionary exception to the hearsay rule, subject to the safeguards that have been set out in the Bill. Separately, the Court of Appeal was called in a recent case, Promontoria (Aran) Ltd. v. Burns, to interpret and apply the law as it currently stands regarding the admissibility of business records in civil cases. Both judgments delivered by the court last April were clearly of the view that the law in this area needs to be updated by legislative reform.
More recently, the Judiciary has specifically identified legislative reform of the civil law rules on business records to my Department as among the most urgent priorities for it to be able to advance cases fairly and without unnecessary delays and costs to all parties concerned.
This chapter, prepared in detailed consultation with the office of the Attorney General, provides that, in civil proceedings, any record in the form of a document compiled in the course of business shall be presumed to be admissible as evidence of the truth of the fact or facts asserted in that document. However, it is important to say that just because a document is admissible in evidence does not mean the court will presume the records are correct. Under the proposed amendments, business records can be still challenged in the normal way by another party to the proceedings. In addition, they can be challenged by the court itself which will have a specific power under proposed section 16(1) to exclude business records evidence in the interests of justice on its own motion - for example, even in a case where no formal application has been made to exclude a business record because a litigant is not legally represented.
The remaining sections set out provisions around oral evidence in respect of those documents, rules in relation to providing copies of documents where the original is not available, the criteria for supplying documents to the court, and power for the court to determine whether it is in the interests of justice to admit documents as evidence, among others.
Chapter 4 of Part 3 provides for two important measures in the use of electronic means in civil proceedings. The first is the remote lodgment or e-filing of documents with the courts. The second is a provision for statements of truth as an alternative to the swearing of affidavits. Section 20 introduces e-filing as an alternative to the lodgment or filing of document replications in paper form. Rules of court may specify the conditions under which documents are submitted by electronic means.
Section 21 provides for a statement of truth. This may be in electronic form as it is an alternative to the swearing of an affidavit or statutory declaration as a means of submitting evidence or verifying documents. The section also provides for an offence of making or causing a false statement to be made.
I will briefly discuss Part 4 which contains substantive reforms to our criminal procedural law, particularly relating to the use of widened video link technology in criminal proceedings. This Part also includes important reforms to improve efficiencies in executing warrants. These provisions are urgently needed to assist the courts with the conduct of their business in these extraordinary times.
This Bill provides for wider use of video links between persons in custody and the courts which were formerly permitted in limited circumstances under sections 33 and 34 of the Prisons Act 2007. On the recommendations of the Attorney General, the Bill also extends the provisions to cover persons not in custody so that any accused person can attend by video link for certain applications where the court so directs.
I only have ten minutes to speak, so I will move on to Part 5. It concerns the introduction of provisions relating to broad sets of issues. These seek to ensure compliance with social distancing and the health and safety of citizens. They facilitate the continued operation via remote means of State bodies, unincorporated bodies and designated bodies. Section 29 provides for the remote meeting of State bodies. They may be designated by the appropriate Minister for that purpose, subject to certain criteria.
Section 30 provides for the remote meetings of unincorporated bodies, for example, clubs, community associations and charitable organisations. The GAA would be an example of such a body. The interim period shall be for three months following the commencement of section 3 or for any other period requested by the Government in the interests of public health.
Section 31 provides that the bodies designated by the Ministers may hold hearings remotely, subject to certain criteria.
Section 32 is aimed at improving efficiencies in our legal system and provides for the execution of contracts or deeds in counterpart, subject to the requirements as set out in the section.
Under section 26(1)(f) of the Courts of Justice Act 1953, the Courts Service must prepare and issue a statutory instrument each time it needs to vary a District Court opening time, location, etc. The requirements of that paragraph are complex and time consuming. They do not supply the Courts Service with the flexibility to address its requirements in situations such as, but not limited to, the current pandemic. Section 33 inserts a new section into the 1953 Act which provides that each time the Courts Service needs to vary the hours of operating or sitting location, etc., for the District Court, it shall publish a notice to do so on its website outlining the changes. This must be done in consultation and with the consent of the President of the District Court.
The Bill contains important steps in the process in modernising our courts and our civil and criminal law systems in the light of the current pandemic. I believe the measures I have outlined will ensure the continuity of the essential services of our courts in a safe and efficient manner for our citizens. I commend the Bill to the House and look forward to engaging with Deputies on the matter.