Thursday, 30 July 2020
Civil Law and Criminal Law (Miscellaneous Provisions) Bill 2020: Second Stage
In March 2020 the Courts Service introduced measures to scale back the work of the courts because of the Covid-19 lockdown period. In a statement published in July, the Chief Justice, Mr. Frank Clarke, outlined plans to further increase the number of remote hearings offered by the Courts Service. Most appeals before the Supreme Court and the Court of Appeal, to date have been conducted remotely, save for a small number where a physical hearing was considered necessary. He stated that this situation will continue for the foreseeable future.
The President of the High Court indicated that the service must preserve courtrooms for those cases that can be dealt with only by way of physical hearing. The president noted that remote hearings should be Covid-19 proof in the event that a second wave of the virus leads to the introduction of new health and safety restrictions in the country.
The changes proposed in the Civil Law and Criminal Law (Miscellaneous Provisions) Bill take account of the new reality of dealing with the challenges of public administration in the Covid-19 environment and beyond.
Our courts, like our hospitals, have seen increased workloads over the years and Covid-19 requires us to introduce legislation to allow continuous access to legal remedies and the provision of law in civil, criminal, commercial and family law matters. Bottlenecks in our courts system were already a problem before the arrival of Covid-19. The need to adhere with public health requirements and deal with the legal implications of a public health emergency requiring mandated social distancing cannot be relaxed when Covid-19 is in our country and the risk of a further spike remains at a high level.
Provisions proposed in this Bill will broaden the types of criminal and civil cases which can be heard electronically. The new Bill will allow for evidence to be presented electronically by witnesses, where authorised. In order to accommodate evidence delivered by electronic means, a statement of truth may be requested to be delivered electronically with a digital affidavit or deposition. This statement of truth would in effect supplant the normal requirements of oath to be presented at court. The pending Perjury and Related Offences Bill 2018 was resubmitted to this House last night by the Regional Group of Independents. It was agreed that it would be restored to the Dáil Order Paper. Hopefully, when it is passed it will further strengthen the issue of the veracity of electronically submitted evidence. The provisions proposed will also set out how meetings of designated incorporated and State bodies can be held electronically to support requirements for social distancing.
The Bill runs to a great number of Parts and sections. There are notable provisions including amendments to the Coroners Act 1962 which seek to allow the Minster to appoint temporary coroners in exceptional circumstances upon the request of a coroner or coroner's district. This would be in exceptional circumstances such as in a pandemic or natural catastrophe that may lead to mass fatalities. The stipulations of such appointments would require that the person have years of suitable experience or already be a coroner for another district. The duration of appointment would be six months pending a review extension requiring the prevailing circumstances to be in continuation. The Minister would have the power to revoke this appointment at any time. We can see the value of that given the spike in Covid deaths in recent months.
The new provisions will also allow for the remote hearing of cases in civil proceedings and can decide on the technology being used and on any objections raised to a case being heard remotely. The remote hearings will have the same powers as hearings in person and the same legal immunities and privileges will apply. It would also provide for an offence where a person wilfully obstructs participation of individuals or interferes with the technology platform the court is utilising. Fines and incarceration for up to three years are possible on conviction.
Another range of provisions seeks to have business documents compiled during the ordinary course of business presumed to be admissible as evidence in civil cases. I note what other Members have said about section 14 and I would be interested in discussing with them and the Minister whether the section could be omitted from the Bill. Evidence to witness credibility for supplying such information will be admissible. Those who supply such information in civil courts will be deemed to be bound as if they were attending court in person and all normal legal parameters remain as before. To assist such civil proceedings evidence can be given electronically where a declaration can be launched with an accompanying statement of truth to be transmitted with documents. These statements can be signed electronically and would have equal standing to those given in person.
Remote hearings have been noted to be suitable for the appellate courts and have been particularly useful in the hearing of preliminary applications and in case management. They are not well suited for certain matters such as where evidence is required to be elicited from witnesses or in matters that require a jury. In criminal court proceedings remote viewing enables a person to participate in the proceedings and see the proceedings before the court. It enables other persons participating in the proceedings who are not in the same location as that person to see and hear their input and evidence.
Remote hearing in criminal cases needs to be widened in use and this Bill proposes to extend the types of matters for which video links may be used. These can include permit arrangements, returns for trial, sentencing hearings and certain hearings relating to surrender proceedings.
An amendment of the Criminal Justice (Administration) Act 1924 provides that when warrants are outstanding on an individual already incarcerated such warrants can be served without the need to move that person to a different prison to have the warrant served. We can all see the benefits of that where utilisation of manpower and resources are concerned.
Regarding the remote hearing of appeal proceedings, section 26 proposes that the Supreme Court or the Court of Appeal in criminal proceedings may, of its own motion or on the application of any of the parties, direct that proceedings be heard by remote hearing. Section 26(7) proposes the creation of a new offence of interfering with or obstructing the communications technology used in promoting remote viewing.
Ultimately, these proposals will recognise the new realities of operating the Courts Service within the constraints imposed by a pandemic. They offer an additional power to appoint dedicated legal coroners to provide additional resourcing to the State where required. They will help to streamline and create efficiency in our courts system and they will help to move our courts further and faster by embracing new technology and, in so doing, provide a better legal service for citizens and other legal entities. Having said that, I would not like to see these provisions used to fast-track cases concerning vulture funds, as was referenced earlier.