Wednesday, 10 July 2019
Coroners (Amendment) Bill 2018: From the Seanad
Many of the amendments made in the Seanad go in the direction of earlier amendments approved or proposed during Dáil discussions. I hope, therefore, they can be readily acceptable here this evening. They include, in particular, the introduction of a consultative case stated procedure, the extension of the mandatory retirement age and further amendments in respect of the Garda Síochána Ombudsman Commission, GSOC.
Amendment No. 1 is the most substantial amendment in this grouping. It amends section 11 of the principal Act to replace 70 years of age with 72 as the mandatory age of retirement for a coroner. It also makes a corresponding change from 70 to 72 years in the provision for a coroner to give three months' notice to the Minister before he or she attains the mandatory retirement age.
I support this amendment. In fact, on an earlier Stage, Fianna Fáil tabled an amendment seeking to raise the retirement age to 72. My colleague, Deputy Éamon Ó Cuív, was enthusiastic about this proposed amendment so I am pleased it was enacted in the Seanad and Fianna Fáil will support it here.
This seems a sensible amendment to valuable and comprehensive legislation. Sinn Féin will support it.
I thank the Minister for his remarks and express my appreciation for his engagement and co-operation on a number of issues and across various debates. I also thank his officials in the Department of Justice and Equality who regularly made themselves available.
The amendment is an important administrative updating provision. It is intended to help address the increasing workload and backlog of inquests in the Dublin area. The amendment inserts a new section 13A in the principal Act. The new provision will allow the Minister, on receipt of a request from the Dublin coroner, to authorise his or her deputy coroner to conduct death investigations on inquests concurrently with the coroner for the purpose of increasing the number and progress of inquiries into deaths in the Dublin coroner district. That authorisation is given for a fixed period that must end not later than two years after the commencement of the amending provision. Under the Act as it stands, the deputy normally acts only where the coroner is absent, disqualified or incapacitated or, indeed, while the position of coroner may be vacant.
This is not, of course, a substitute for overall administrative restructuring of the national coroner system. As I mentioned in my remarks on Second Stage in this House, we must continue to examine the optimum organisation of the coroner service. It is clear that further elements of coroner structures will require significant improvement. This Bill, however, does not focus on reforming coronial law but it includes a number of immediate and necessary administrative updates, pending overall administrative reform. This amendment is one of those changes to provide much needed additional capacity in the Dublin district, which is particularly stretched for obvious demographic reasons, despite the considerable work and productivity of the Dublin coroner, Dr. Myra Cullinane, and her predecessor, Dr. Brian Farrell. I take this opportunity to express my sincere thanks to them both and the teams and staff of the Dublin coroner's office.
I support this amendment. The role of the Dublin coroner is, unfortunately, a very busy one. It is appropriate that we have this statutory provision in place so that a deputy coroner can carry out some of the tasks on behalf of the coroner. The Minister referred to the issue of coronial law and the Coroner's Court is a court of great antiquity but it is an area that needs to be better resourced. This amendment will enable that by putting on a statutory basis the role that can be played by a deputy coroner for the city of Dublin.
Amendments Nos. 5 to 11, inclusive, are probably the most important and I will address them.
This series of amendments relates to the adjournment of an inquest. A coroner's obligation is to direct a post mortem examination in a case where criminal proceedings are being considered, or have been initiated, into the death of the person concerned. The principal Act provides under section 25 that the coroner shall adjourn the inquest on the request of a Garda officer of a rank not less than inspector in either of these situations. Where the request is on the ground that criminal proceedings are being considered, section 25(1) provides that the coroner should adjourn the inquest for such period as he or she thinks proper and shall further adjourn it where the officer so requests on the same ground. Where the request is on the ground that criminal proceedings have been instituted, section 25(2) provides that the coroner shall adjourn the inquest until such proceedings have been finally determined.
This group of amendments makes provision for adjournment along identical lines where the lead investigating agency regarding any criminal proceedings relating to the death of the person is not An Garda Síochána but is the Defence Forces or, in certain circumstances, GSOC. This will arise only in a limited range of cases. The amendments specify that the Defence Forces are the lead investigating agency only where the death is that of a person who is subject to military law under the Defence Acts. This would be the case for a member of the Defence Forces who dies while on active service, or perhaps even in service custody.
The amendments also specify that GSOC is the lead investigating agency only where there is a GSOC investigation under Part IV of the Garda Síochána Act 2005 into the death concerned. This is provided in the definition of "relevant Ombudsman Commission investigation" contained in section 2 of the Bill.
On the same line, section 18 of the Bill inserts a new section 33A into the principal Act making more detailed and comprehensive provision on the categories of deaths where the coroner has a duty to direct a post mortem examination. That section already makes mandatory provision for a post mortem examination in cases where An Garda Síochána or the Defence Forces or GSOC, as the lead investigating agency, so request.
This group of amendments amend section 18 to refer more precisely to the scope of Defence Forces and GSOC investigations and for consistency with other amendments in the group. Similarly, section 40(3) of the principal Act provides that the coroner is not obliged to empanel a jury for an inquest sitting at which a Garda officer of a rank not less than inspector would apply for an adjournment on the grounds of criminal proceedings into the death concerned are being considered or may even be instituted.
The group of amendments similarly amends section 40(3) to avoid an obligation to empanel a jury unnecessarily where the adjournment is requested by an appropriate officer of the Defence Forces or GSOC in the small range of cases where that body, and not An Garda Síochána, is the lead investigating agency.
These amendments represent the existing practice in any event but it is preferable that we make express statutory provision in that regard in the Bill. I encourage Deputies to agree with that.
Amendment No. 5 is the most substantial in the grouping. It amends section 25 of the principal Act, as I have described, to provide that the coroner shall adjourn an inquest on request of an appropriate officer of the Defence Forces or GSOC in the specific range of deaths where that body is the lead investigating agency under statute and is considering criminal proceedings.
Amendments Nos. 6 to 11, inclusive, are technical amendments proposed on the advice of the Parliamentary Counsel. I do not propose to deal with them in any detail.
Amendment No. 11 relates to relates to section 40 of the principal Act and it provides that the coroner is not obliged to empanel a jury for an inquest sitting at which, as mentioned earlier, an appropriate officer of the Defence Forces or of GSOC will apply for adjournment of the inquest on the basis that criminal proceedings are being considered, or have been instituted, in relation to a death and where that body is the statutory lead investigating agency.
I will deal with any queries which Deputies may have but the amendments are straightforward.
I will be supporting the amendments. On some occasions when an inquest takes place before a coroner, a member of An Garda Síochána will apply for an adjournment because there will be an ongoing criminal investigation. At that stage, the objective is to ensure that the criminal investigation is given priority and is not interfered with. There is a concern that if an inquest goes on in advance of the conclusion of the criminal investigation, it could interfere with it.
As the Minister noted, this is already the practice in the Coroner's Court but it makes sense to put it on a statutory basis. Sometimes, unfortunately, people go before a Coroner's Court looking for justice. That is not the place where one will get justice. In a Coroner's Court, one will get information on where, when and how a person died. If that person has been unlawfully killed, sometimes, understandably, the family of the deceased will look to the State inquest for answers and for liability and culpability to be apportioned. That is understandable but it is not the function of a Coroner's Court. The appropriate place for people responsible for deaths to be held to account is before the criminal courts, that is how it should happen. It is understandable from the point of view of families of people who had been murdered or killed unlawfully that they sometimes look at the Coroner's Court for answers that it cannot provide. However, the primary amendment is appropriate as it will entitle members of the Garda to point to a statutory provision that says the coroner should now adjourn the inquest because there is an ongoing criminal investigation. I also think it will take pressure off a coroner in many instances that families will be there and will not want the inquest to be adjourned but if a coroner can point to a statutory provision that mandates him or her to adjourn the inquest, then it will make his or her life easier and will not give any false hope to the family.
This is a very significant and substantive amendment. It inserts in the Bill a new power for a coroner to seek directions from the High Court on any doubtful or difficult point of law arising in the exercise of his or her functions.
While coroners are normally determining questions of fact, difficult questions of law do inevitably arise occasionally on a range of issues relating to the exercise of their functions. Such issues might, for example, include the procedural rights of interested parties at inquest, or the interpretation of the European Convention of Human Rights on a new or difficult issue.
Currently, coroners have no legal avenue to seek direction from the courts on such points of law, and the main avenue is judicial review proceedings, which have to be taken by an interested party, rather than by the coroner.
Coroners strongly support a case stated facility for these reasons. This provision is long sought by the coroners and their representative association and a similar provision was included in the Coroners Bill 2007. The text used here is similar to the consultative case stated procedure used in the Tribunals of Inquiry Act as inserted by the Tribunals of Inquiry (Evidence) (Amendment) Act 2004) and in the Coroners Bill 2007.
This is a special provision, which is to be used at the discretion of the coroner. Interested parties at inquest will continue to be entitled to seek judicial review, if they believe that a coroner has made a wrong decision as a matter of law. The case stated provision has a different purpose: it is there to enable coroners to seek guidance from the High Court on a difficult or unexplored point of law relating to the exercise of their functions. I do not expect that this will need to be used frequently but I do expect that it will be used judiciously by coroners and, used in that way, will greatly assist in clarifying and developing our coronial law in a very valuable manner.
Historically the function of the coroner has been very specific, but is being expanded more recently. Attempts are being made to expand it more. Recently, there was an inquest in the United Kingdom which was very much about trying to apportion responsibility for a heinous crime. I am not saying that will happen with the Coroner's Court in Ireland but we must be aware of attempts to expand the coroner's role, which arises particularly with historic crimes which have not resulted in persons being found guilty and the family or their legal advisers' view is that the only option is to go before the Coroner's Court.
I support the amendment. I suspect it will give rise to attempts to expand the function of the coroner in his or her court. I suspect there will be some applications by lawyers to get the coroner to state questions of law to the High Court. In the long term, that will probably have the effect of expanding the parameters of the role of the coroner.
This groups of amendments effectively inserts into the Bill a further provision for situations where a designated officer of GSOC is assisting the coroner, in place of a Garda, in a death which is also the subject of a GSOC investigation under Part 4 of the Garda Síochána Act 2005.
Section 33 of the Bill already inserts a new section 101A into the Garda Síochána Act 2005, to make express provision for a GSOC designated officer to perform the assistance functions expressly set out for a garda in the Coroners Act 1962, and provide such other assistance to the coroner as would normally be provided by a Garda, in relation to the inquest.
The proposed amendments add a new subsection in new section 101A of the Garda Síochána Act to add, for the avoidance of doubt, that while performing such functions, or providing such assistance, the GSOC designated officer continues to have all the powers, immunities and privileges, and all the duties, of a member of An Garda Síochána whether statutory or common law. Such immunities and privileges should be expressly provided to avoid any possible risk of purely technical legal defects in the officer, for example, entering on private property to serve a summons.
It is a technical amendment related to renumbering.
Amendment No. 15 is made on the advice of Parliamentary Counsel, for consistency with other provisions of the Bill. The proposed wording as amended, "inquiry by a coroner into a death", has a broader scope than the current wording "inquiry by a coroner into the circumstances of a death", which could be open to a restrictive interpretation.
Amendment No. 16 is the last of the group. As I have already outlined, it adds a new subsection to the new section 101A of the Garda Síochána Act to add, for the avoidance of any doubt, that while performing statutory functions of assistance to the coroner inquiring into a death, or otherwise assisting the coroner in relation to the inquest into that death, in place of a Garda a designated officer of GSOC will have all of the powers, immunities, privileges and otherwise and, of course, will be subject to all of the duties of a member of An Garda Síochána.
I acknowledge the work of former Deputy Clare Daly in respect of the Bill and the work of Dr. Jo Murphy-Lawless, now retired, who was an excellent proponent of this legislation. There were too many other women to mention. The impact of the subject matter, as articulated by people such as Vicky Conway in The Irish Timesof late, had a tremendous effect on all of us. I acknowledge those women who have passed away. We think of them as we promulgate the legislation.
I want to be associated with the remarks of the previous speakers about Dr. Murphy-Lawless and Clare Daly. As Deputy Sherlock said, we should remember the families of those who have suffered great and tragic losses. I have friends who suffered the loss and had a difficult job trying to deal with the situation afterwards. It is important that we remember these people tonight. The Minister gave a commitment that he would deal with this before the summer recess and he has honoured it.
I will conclude by making some brief remarks. I acknowledge the importance of the legislation and the constructive manner in which the Bill has been supported. As I did before, I acknowledge the initial leadership shown by now MEP Clare Daly. I thank the Chairs of the Dáil and the Seanad who have actively supported its progression, underlining the cross-party support for the Bill.
I acknowledge the presence here this evening of families who have been directly touched by these issues and I acknowledge the interest and commitment they have shown throughout the sometimes lengthy progress and passage of the legislation and all of those who have supported and campaigned for many of the changes of a positive nature we now see in the legislation.
I convey my appreciation and thanks to the Office of the Attorney General. I also want to express my appreciation of Dr. Mary Flanagan, the president of the Coroners Society, Mr. Eugene O'Connor and all of the members of the Coroners Society's legislation committee for their expert contributions to the Department during the extensive preparation of the Bill. I also acknowledge the contribution of my officials and in particular, two who are both present here this evening, Ms Madeleine Reid and Mr. Brendan McNamara, who often worked under strict deadlines to ensure we were in a position to have matters concluded here before the summer vacation. Often, that is easier said than done.
This is complex legislation and Deputies such as Deputy Ó Cuív, who were involved in the 2007 legislation will know there are very serious legal and complex issues involved and it has not been a simple exercise. I am very pleased we have arrived in the position where we are now. I recall that during Committee Stage in the Dáil, the Acting Chairman, Deputy Durkan, made a comment that we were making a little bit of history together and I believe we are. Now that the Bill has been approved in its entirety, my intention is to seek early enactment and at an early stage thereafter, early commencement. I said on the close of Report Stage on 15 May that I hoped, with the support of both Houses, to seek enactment by the summer recess. I am very pleased to do so and in this regard I acknowledge the contribution of Deputies O'Callaghan, Ó Laoghaire, Sherlock and others. It is with pleasure, therefore, that I propose we bring the proceedings to a conclusion.