Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I thank the Senator for his contribution. Unfortunately, I am not in a position to accept the amendment. I have several observations by way of reason. First, the proposal is problematic from a drafting point of view. The amendment is inconsistent with the mechanism outlined in the section. The amendment, as the Senator said, 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 the Commissioner had previously refused. However, no other amendment is made to any other part of the section to either set aside the Garda Commissioner's decision or to require the examining judge under section 3(9) to take account of the outcome of the review of the judge of the High Court. I am unsure how a review of an appeal by a judge of the High Court, as proposed in the amendment, may be binding on the High Court judge conducting the examination of the Garda. This could be legally problematic. In addition, as pointed out in the Dáil last night by Deputy Jim O'Callaghan, the fact that what is proposed is an in camerahearing involving the Garda Commissioner and the reviewing judge without the presence of a coroner from Northern Ireland is problematic.

Even if the amendment was consistently reflected in the section, I would still have a problem with it as it is contrary to the overall objectives of the section, which is designed to foster a further spirt of co-operation between the Coroner Service for Northern Ireland and the Garda authorities to allow a coroner to access Garda testimony in a form that will be admissible to the inquest. In practice, the Garda authorities and the coroner will work closely on the request for assistance. The application of the mechanism to take Garda testimony would always be preceded by significant co-operation and exchange of information under a co-operation agreement concluded under section 5. The conflict between the Garda Commissioner and the coroner would not arise at the stage of the application of the section 3 mechanism. As it stands, the Garda Commissioner does not have carte blancheto refuse to accede to a request. He or she may only do so for specific and clearly defined reasons. The reasons are listed under section 3(4). The Garda Commissioner will not accede to a request for specific reasons fundamental to the functions of An Garda Síochána, including the protection of life, the vindication of human rights, the pursuit of justice or the preservation of peace and security in the State for all its residents and citizens. Section 3(4) protects the integrity of these Garda functions.

The amendment would be unprecedented in terms of cross-border assistance on criminal justice matters. State agencies participate or enter into co-operation agreements in a spirit of trust, accommodation and confidence. While some restrictions are necessary, such as under section 3 of the Criminal Justice (Mutual Assistance) Act 2008, to ensure the integrity of national sovereignty and criminal justice processes, they are seldom invoked because of the high level of engagement and trust cultivated by participants over a period. In this regard, the Garda is well used to operating within these frameworks. Senators will be aware of the high level of co-operation between An Garda Síochána and the Police Service of Northern Ireland. In fact, I would go as far as to say that co-operation and constructive and positive engagement has never been so good. Long may that continue. This trust and engagement can never be undermined by the threat of a judicial process or challenge to the integrity of the decision. I am not going to accept the amendment for these reasons.