Coroners (Amendment) Bill 2018: Committee Stage

I informed Senators on Second Stage of my intention to bring forward a number of further amendments. The amendments I am introducing today include an important new section that will provide a coroner with the power to seek directions from the High Court on a point of law regarding the exercise of the coroner's functions.

We will take individual amendments as the sections arise. I do not know what the Minister intends to do, but I will go to go through the Bill.

We will do that, but I want to inform the House of my intention to introduce a small number of additional amendments on Report Stage, on which work is being completed. I will come back to those as we move through the sections.

Section 1 agreed to.
SECTION 2
Question proposed: "That section 2 sand part of the Bill."

I am considering a Report Stage amendment on the inclusion of further definitions in section 2, which may result in better functioning of the Bill.

Question put and agreed to.
Sections 3 and 4 agreed to.
SECTION 5
Question proposed: "That section 5 stand part of the Bill."

I expect to come back with an amendment to this section on Report Stage.

Question put and agreed to.
Amendment No. 1 not moved.
SECTION 6
Question proposed: "That section 6 stand part of the Bill."

I intend to bring forward an amendment to section 6 on Report Stage which will include further administrative provisions, updating the provisions in section 13 of the principal Act.

The Minister is alerting us to a number of amendments. Are they primarily technical in nature? I do not want to pre-empt Report Stage if it is a debate for Report Stage, but perhaps the Minister could give us an indication of whether or not they are primarily technical.

They are. They deal with the positions of deputy coroners and the Dublin coronial district.

Question put and agreed to.
Sections 7 to 13, inclusive, agreed to.
NEW SECTION

Amendments Nos. 2 to 8, inclusive, are related and may be taken together. Is that agreed? Agreed.

Government amendment No. 2:
In page 16, between lines 21 and 22, to insert the following:
“Amendment of section 25 of Principal Act
14. Section 25 of the Principal Act is amended—
(a) by the substitution of the following subsection for subsection (1):
“(1) Where, at an inquest in relation to a death—
(a) a member of the Garda Síochána not below the rank of inspector in any case other than a case to which paragraph (c) applies,
(b) a member of the Defence Forces not below the rank of commandant in a case of the death of a person who is subject to military law under the Defence Acts 1954 to 2015, or
(c) a designated officer of the Ombudsman Commission in a case where there is a relevant Ombudsman Commission investigation,
requests the coroner to adjourn the inquest on the ground that criminal proceedings in relation to the death are being considered, the coroner—
(i) shall adjourn the inquest for such period as he or she thinks proper,
and
(ii) shall further adjourn the inquest for similar periods so often as a member of the Garda Síochána not below the rank of inspector, a member of the Defence Forces not below the rank of commandant or a designated officer of the Ombudsman Commission, as the case may be, so requests the coroner on the ground aforesaid so to do.”, and
(b) in subsection (2), by the substitution of “Where, at an inquest in relation to a death—
(a) a member of the Garda Síochána not below the rank of inspector in any case other than a case to which paragraph (c) applies,
(b) a member of the Defence Forces not below the rank of commandant in a case of the death of a person who is subject to military law under the Defence Acts 1954 to 2015, or
(c) a designated officer of the Ombudsman Commission in a case where there is a relevant Ombudsman Commission investigation,
requests the coroner to adjourn the inquest” for “Where, at an inquest in relation to any death, a member of the Garda Síochána not below the rank of inspector requests the coroner to adjourn the inquest”.”.

This series of amendments relates to the adjournment of an inquest and the coroner's obligation to direct a post-mortem examination in a case where criminal proceedings are either under consideration or have been initiated into the death of the person concerned. Section 25 of the principal Act, as Senators will be aware, already provides that the coroner shall adjourn the inquest on request of a Garda officer of rank not less than inspector in either of the following situations. The first is where the request is on the grounds that criminal proceedings are being considered. Section 25(1) provides that: "the coroner shall adjourn the inquest for such period as he thinks proper and shall further adjourn the inquest for similar periods so often as a member of the Garda Síochána not below the rank of inspector requests him on the ground aforesaid so to do." The second is where the request is on the grounds that criminal proceedings have been instituted. Section 25(2) provides that "the coroner shall adjourn the inquest until such proceedings have been finally determined".

The group of amendments I am introducing makes provision for an adjournment along identical lines where the lead investigating agency regarding any criminal proceedings in relation to the death of a person is not an Garda Síochána, but the Defence Forces or the Garda Síochána Ombudsman Commission, GSOC. This will only arise in a limited number 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 1954 to 2015. This will be the case for members of the Defence Forces who die while in active service, or in service custody.

The amendments also specify that GSOC is the lead investigating agency only where there is a GSOC investigation under Part 4 of the Garda Síochána Act 2005 into the death in question.

That is provided for in the definition of "relevant Ombudsman Commission investigation" contained in section 2 of the Bill.

Section 18 inserts a new section 33A into the principal Act, making more comprehensive and detailed 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 lead investigating agency, so requests. I am proposing to make several amendments to section 18 to refer more precisely to the scope of Defence Forces and GSOC investigations and for consistency with the other amendments in this grouping.

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 rank not lower than inspector will apply for adjournment on the grounds that criminal proceedings into the death concerned are being considered or have already been instituted. These amendments make changes to 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 of GSOC in the small range of cases where that body, and not An Garda Síochána, is the lead investigating agency. The amendments reflect existing practice, but it is preferable to make express statutory provision in this regard.

Amendment No. 2 is the most substantial amendment in this grouping. It amends section 25 of the Principal Act to provide that the coroner shall adjourn an inquest on the request of an appropriate officer of the Defence Forces or of GSOC in the specific range of deaths where either of those bodies is the lead investigating agency under statute and is considering criminal proceedings in respect of the death or such proceedings have been instituted.

Amendment agreed to.
Sections 14 to 17, inclusive, agreed to.
SECTION 18
Government amendment No. 3:
In page 18, line 33, to delete "in every case in which" and substitute "where".
Amendment agreed to.
Government amendment No. 4:
In page 18, line 34, after "inspector" to insert "in any case other than a case to which paragraph (d) applies".
Amendment agreed to.
Government amendment No. 5:
In page 18, line 36, after "commandant" to insert "in a case of the death of a person who is subject to military law under the Defence Acts 1954 to 2015".
Amendment agreed to.
Government amendment No. 6:
In page 18, line 39, after "death" to insert "in a case in which the body is investigating the accident, incident or disease resulting in the death concerned".
Amendment agreed to.
Government amendment No. 7:
In page 18, line 40, after "Commission" to insert "in a case in which there is a relevant Ombudsman Commission investigation".
Amendment agreed to.
Question proposed: "That section 18, as amended, stand part of the Bill."

I give notice to Senators of my intention to introduce a further technical amendment to this section on Report Stage.

Question put and agreed to.
Sections 19 to 22, inclusive, agreed to.
NEW SECTION
Government amendment No. 8:
In page 24, between lines 4 and 5, to insert the following:
"Amendment of section 40 of Principal Act
23. Section 40 of the Principal Act is amended—
(a) in subsection (1), by the deletion of paragraph (d), and
(b) in subsection (3), by the substitution of "is informed by a member of the Garda Síochána not below the rank of inspector, a member of the Defence Forces not below the rank of commandant or a designated officer of the Ombudsman Commission that he or she will, under subsection (1) or (2) of section 25, request an adjournment of the inquest" for "is informed by a member of the Garda Síochána not below the rank of inspector that he will request an adjournment of the inquest".".
Amendment agreed to.
Section 23 deleted.
Sections 24 to 29, inclusive, agreed to.
SECTION 30
Question proposed: "That section 30 stand part of the Bill."

I give notice of my intention to bring forward an administrative amendment to this section on Report Stage.

Question put and agreed to.
Sections 31 and 32 agreed to.
NEW SECTION
Government amendment No. 9:
In page 27, between lines 19 and 20, to insert the following:
"Directions of High Court
33. The Principal Act is amended by the insertion of the following section after section 61 (inserted by section 32):
"62. (1) A coroner may, whenever he or she considers it appropriate to do so, apply to the High Court for directions on a point of law regarding the performance of his or her functions under this Act in relation to the death of any person.
(2) The High Court shall determine an application under subsection (1) by giving such directions and making such orders as it considers appropriate.
(3) The High Court may, on application to it in that behalf, hear an application under subsection (1) otherwise than in public if satisfied that it is appropriate to do so because of—
(a) the subject matter in relation to which directions are sought,
(b) a risk of prejudice to criminal proceedings, or
(c) any other matter relating to the nature of the evidence to be given at the hearing of the application.
(4) The High Court shall give such priority as it reasonably can, having regard to all of the circumstances, to the disposal of proceedings in the Court under this section.
(5) An appeal shall lie by leave of the High Court to the Court of Appeal from a determination of the High Court of an application under subsection (1).
(6) The Superior Court Rules Committee may, with the concurrence of the Minister, make rules of court to facilitate the giving of effect to subsection (4).".".

This is an important and substantive amendment which inserts into 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 normally determine questions of fact, difficult questions of law do 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. The main avenue of clarification is judicial review proceedings, which have to be taken by an interested party rather than by the coroner.

For these reasons, coroners strongly support and have long sought a case-stated facility. The text used here is similar to the consultative case-stated procedure used in section 4A of the Tribunals of Inquiry (Evidence) (Amendment) Act 1997, as inserted by section 3 of the Tribunals of Inquiry (Evidence) (Amendment) Act 2004, and in the Coroners Bill 2007. It 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, in their view, 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 it will need to be used frequently, but I do expect that it will be used judiciously by coroners from time to time. As such, it will greatly assist in clarifying and developing our coronial law. I ask Senators to support this important amendment.

Amendment agreed to.
SECTION 33

Amendments Nos. 10 to 12, inclusive, are related and may be discussed together. Is that agreed? Agreed.

Government amendment No. 10:
In page 27, line 24, to delete "101A." and substitute "101A.(1)".

These amendments insert into the Bill a further provision for situations where a designated GSOC officer 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 2005 Act 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 regard to the inquest.

The proposed amendments Nos. 10 to 12, inclusive, add a new subsection to a new section 101A of the Garda Síochána Act 2005 to add, for the avoidance of any 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 and obligations 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. I ask for support for the amendment.

Amendment No. 11 is a technical amendment. Amendment No. 12 is the substantive amendment in this grouping. As I have already outlined, it adds a new subsection to a new section 101A of the Garda Síochána Act 2005 to add, for the avoidance of any doubt, that while performing statutory functions of assistance to the coroner’s inquiry into a death or otherwise assisting the coroner in relation to the inquest into that death in place of a garda, a GSOC designated officer will have all the powers, immunities and privileges enjoyed by a member of an Garda Síochána, whether statutory or common law. Again, I ask that the amendment be supported.

For the benefit of Senators, in particular Senator Ó Donnghaile who raised this matter, I have a small number of further amendments which are being finalised, subject to the advice of the Attorney General, and which I hope to table on Report Stage. These include a possible provision to extend the retirement age of coroners from 70 to 72 years; a possible further administrative updating of provisions regarding, in particular, the Dublin coroner district; and a provision setting out general rules and guiding principles for the making of detailed regulations on appropriate and respectful treatment of human tissue or organs removed for post mortem or inquest. I am keen that we move to Report Stage next week and I do not expect that there will be any delay in finalising these decisions. The amendments will be circulated in advance of the debate.

Amendment agreed to.
Government amendment No. 11:
In page 27, lines 28 and 29, to delete “the circumstances of”.
Amendment agreed to.
Government amendment No. 12:
In page 27, to delete line 36 and substitute the following:
“completed.
(2) A designated officer of the Ombudsman Commission has, for the purposes of performing the functions of such an officer referred to in paragraph (a) of subsection (1) and of providing the assistance referred to in paragraph (b) of that subsection, all the powers, immunities and privileges conferred and all the duties imposed on a member of the Garda Síochána by or under any enactment or the common law.
(3) In this section ‘enactment’ has the meaning it has in section 98.”.”.
Amendment agreed to.
Section 33, as amended, agreed to.
Sections 34 to 36, inclusive, agreed to.
Schedule agreed to.
Title agreed to.
Bill reported with amendments.

When is it proposed to take Report Stage?

Report Stage ordered for Tuesday, 2 July 2019.