Courts and Civil Law (Miscellaneous Provisions) Bill 2013: Second Stage (Continued)

Tuesday, 9 July 2013

Dáil Éireann Debate

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(Speaker Continuing)

[Deputy Alan Shatter: Information on Alan Shatter Zoom on Alan Shatter] These appointments would allow for urgent remedial measures to be put in place prior to the introduction of the reforms envisaged following a referendum on a court of appeal. The appointments would allow for the scheduling of several sittings each week of the Court of Criminal Appeal and permit two divisions of the Supreme Court to sit routinely. The Chief Justice believes that the appointments, together with efficiency measures already introduced, could radically reduce delays and the financial, economic and reputational risks associated with delay.

Part 5 of the Bill amends the Juries Act 1976 to provide for the appointment of up to three additional jurors to deal with lengthy trials. The provision follows a recommendation to this effect in the Law Reform Commission's recently published report on jury service. The issue is of significance in relation to lengthy trials involving fraud or other complex financial matters. Under current law, a jury consists of 12 members, but a decision in a trial by ten members of a jury can be accepted. Accordingly, where up to two members of a jury become incapacitated or otherwise unavailable, there is no risk to the sustainability of a trial. However, during the period of a protracted trial there is a risk that more than two jurors may become unavailable. Where that happens, the trial collapses. I have accepted the Law Reform Commission's argument that legislative provision is required to guard against such a possibility.

The provisions of Part 5 amend the Juries Act 1976 to insert a new section 15A to provide that on application by the prosecution or the defence or on its own motion, the Circuit or Central Criminal Court can order that up to 15 people be selected to serve as jurors. In such cases, a judge must be satisfied that a trial is likely to last more than two months. If it transpires before the jury retires to consider its verdict that more than 12 jurors remain, a jury of 12 jurors will be selected by ballot. Ballots will be conducted in open court by the court registrar under the supervision of the presiding judge. In effect, what would happen in a case of this nature is that the registrar would draw from a drum containing the names of the 15 jurors or such number of jurors as remain the names of the 12 jurors who are to constitute the verdict jury. I am also providing by way of an amendment to section 20 of the Juries Act that where a jury has additional jurors, challenges without cause shown can be made by the prosecution or the accused person to up to eight jurors, as opposed to seven, as is the case with a typical jury.

Part 6 of the Bill provides for the amendment of the Coroners Act 1962 and the Civil Legal Aid Act 1995 to provide for legal advice and legal aid in relation to certain inquests. The Coroners Bill 2007, which is currently before the Seanad, provides for comprehensive reform of the existing legislation and structures relating to coroners and for the establishment of a new coroner service. The Bill is in the course of being reviewed in my Department. The review is focused on the development of optimum administrative and jurisdictional structures that can deliver in the most cost-effective way the planned reform of coronial law. The Coroners Bill, as published, addressed a matter that has been commented on in recent times by the European Court of Human Rights. The court emphasised the importance of ensuring that the next of kin of deceased persons can effectively participate and engage in a coroner's inquest into certain categories of death, including the limited number of cases in which a person has died while being involuntarily detained by the State. The right to effective engagement in these circumstances includes the provision of information prior to the inquest. In certain cases, this may require families to obtain legal assistance to participate effectively in the inquest process.

Sections 86 and 92 of the Coroners Bill 2007 provide for the introduction of a legal aid scheme for proceedings before a coroner. Section 92 provides for the required technical amendments to the Civil Legal Aid Act 1995. These changes will permit the Legal Aid Board to arrange for the granting of legal advice or legal aid to the family of a deceased person for legal representation at an inquest where the person has died in, or immediately after being in, involuntary State custody. Section 86 also provides that a coroner may consider an application to request the Legal Aid Board to provide legal aid where the circumstances of a death involve matters of significant public interest and where the possible recurrence or continuation of those circumstances may be harmful to public health and safety. The provision was included to ensure the fullest possible compliance with the approach of the European Court of Human Rights.

Given the importance of these matters, in view of the fact that making progress on the Coroners Bill 2007 may take some time, and in light of the State's obligations under the European Convention on Human Rights, it is important to take the opportunity represented by the Courts and Civil Law (Miscellaneous Provisions) Bill to address the issue of legal aid at inquests. Accordingly, Part 6 includes the broad provisions contained in sections 86 and 92 of the Coroners Bill 2007, with some refinements to the text to take into account developments since the Coroners Bill was published. An important consideration is that the amendments will be made to the Coroners Act 1962 as opposed to being contained in a new piece of legislation. The normal eligibility criteria in regard to financial means operated by the Legal Aid Board will apply in these situations. I am not providing for free legal aid to pursue civil actions by next of kin. The legal assistance provided is in relation to coroners' inquests only.

Part 7 of the Bill provides for the transfer of the existing Office of the Official Assignee in Bankruptcy to the Insolvency Service. Unfortunately, due to a lack of time while the Personal Insolvency Bill was being finalised for enactment last year, it was not possible to provide in that legislation for the transfer of the Office of the Official Assignee in Bankruptcy to the Insolvency Service as originally intended. I am anxious that the matter should be dealt with as soon as possible. To facilitate this, the appropriate additions to the Act are being made by way of amendments to the Bill in the Seanad.

Part 8 of the Bill contains a number of amendments to the Personal Insolvency Act 2012. Deputies will recall that during the debates in the House on the Personal Insolvency Bill, I indicated that if it was necessary to make any further changes to the legislation to facilitate the operations of the Insolvency Service, I would make them. A post-enactment review by my Department and the Insolvency Service has identified a number of such changes. The amendments contained in Part 8 of the Bill are technical drafting amendments required to improve the presentation of the Personal Insolvency Act 2012 or to correct errors in the text. The purpose of a number of the amendments made by the Seanad is to make clearer the documentation to be presented to the appropriate court for its consideration of the debt resolution processes. The effect of these changes is to facilitate the Insolvency Service and the courts in dealing with the various insolvency cases as efficiently as possible. It is my intention to introduce some further minor amendments to the Personal Insolvency Act on Committee Stage. The amendments are also required to facilitate the Insolvency Service and the courts in dealing with insolvency cases.

The Bill contains important steps in the process of modernisation of our courts to ensure that the essential service they deliver to the community is efficient, effective, fair and accessible to all of our citizens. I commend the Bill to the House and I look forward to a stimulating and interesting debate on its contents.

Deputy Niall Collins: Information on Niall Collins Zoom on Niall Collins Fianna Fáil is broadly supportive of the Bill but has a number of concerns it would like to see addressed. Openness and transparency are important aspects of an effective judicial process which enjoys public trust. They foster better judicial decisions in the public interest. It is important that the Bill achieves the correct balance between privacy and transparency in reporting family law cases.

  Fianna Fáil has published its own Bill on in camera court proceedings, which achieves the right balance between transparency and privacy in the reporting of family law and child-care cases. Fianna Fáil has concerns about the penalty in the Bill for misreporting of cases, which is prohibitive in nature. The penalty may act as a deterrent to journalists in reporting cases which are legitimately within the public interest. Fianna Fáil will propose a number of amendments to ensure there is a greater balance between privacy and transparency that mirrors that of our own proposed legislation. Ultimately, it is vital that the interests of children in cases are fully protected while public trust in the legal system is maintained. The Bill opens family law cases to press coverage under certain restrictions. However, Fianna Fáil considers that it has struck an improper balance which defeats the aims of the legislation in respect of transparency. It is vital that the judicial process is open and transparent to build public trust and improve the judicial decision-making process. The goals of the legislation are to open a window on family law proceedings while observing the constitutional requirement to administer justice in public.

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