I move amendment No. 30:

In subsection (2), page 12, line 46, to delete "who is a solicitor or barrister".

It has been pointed out that sometimes a coroner who is a doctor might assist in the drawing up of a will under which he would be a beneficiary and that, therefore, the prohibition in subsection (2) of Section 45 on "legal" coroners holding inquests should be extended to medical coroners when they find themselves in the same position. Under the subsection, as proposed to be revised, any coroner or deputy coroner will be prohibited from holding an inquest or inquiring into the death of any person where he has drawn up or assisted in drawing up the will of the deceased person and benefits under it.

I move amendment No. 31:

In subsection (2), page 12, line 49, to delete "and is a beneficiary under".

I want to delete certain words. The object of this is that a person should not act as a coroner in the case of a death where, prior to that death, he has helped in the drawing up of a will or a testamentary disposition. The matter is limited to those words. He is precluded from acting only if he has assisted in the drawing up of a will or is a beneficiary under it. Suppose a doctor helped to draw up a will under which he benefited and the testator died under peculiar circumstances then the doctor could not hold the inquest. The term "is a beneficiary" is very narrow. It would not apply, for instance, if a solicitor drew up a will under which his wife, his family, relatives or friends were to benefit. I do not see why it should not be extended to cover the complete range of full testamentary disposition. If a coroner has assisted in the drawing up of a will, no matter who benefits, he should not hold the inquest on the body of the testator. The phrase is far too narrow. If it were changed to "a will under which he benefits" or "which benefits him" that would be a different matter. Being a beneficiary under a will is a very technical matter and I suggest it would be better to say that if a coroner had occasion to draw up the testamentary disposition of the deceased, he should not hold the inquest.

I have a certain amount of sympathy with Deputy McGilligan's point of view in this matter. This is a new provision and the entire concept of subsection (2) is new to the law. We want to ensure that there will be no conflicts of interest between the two capacities of the coroner and this concept deals with the case where there is a solicitor-coroner. I think it desirable that the coroner should, as far as possible, have no connection whatever with a deceased or his affairs. However, we must be practical about this and realise that we cannot put too many impositions on the coroner.

We can visualise the situation in a country town where the solicitor-coroner has a large practice. As we all know, there will be an accumulation of wills in any solicitor's office which have been drawn up over the years and left in the solicitor's safe. We would be putting an undue obligation on a solicitor-coroner if we compelled him on every occasion when he was about to carry out an inquest to go through the accumulated wills in his office and ascertain that he had not drawn up the will of the deceased.

However, I think the suggestion made by Deputy McGilligan is a good one which would probably meet both our points of view. I undertake to have another look at the actual wording of the provision and see if we might expand the concept of "beneficiary" somewhat.

Is this a new procedure?

No.

I quite see that as a procedure for summoning a witness, this is clear enough. The section states:

"Every summons to attend an inquest as a juror or witness shall be served by a member of the Garda Síochána, either by delivering it to the person to whom it is addressed or by leaving it for him at the address at which he ordinarily resides with a person of the age of 16 years or upwards."

I thought the procedure heretofore was that they went out into the street and stopped the first six men they met.

That is the practice.

Look at Section 43.

Is it intended to change that practice or to suspend it?

No.

Does that procedure comply with Section 36?

No, but if it became an issue, then this procedure would be carried out.

Does Section 43 not say that a member of the Garda is to assemble six or 12 people and only if necessary serve summons on them? That section covers the ordinary procedure of a Garda walking down the street and calling on six or seven people.

If people do not turn up, the summons is necessary.

Exactly.

Is there any possibility of an inquest being declared invalid because the provisions of Section 36 were not carried out, if the Bill stands with only Section 43 which defines the procedure for calling a jury that the Garda shall assemble not less than six persons?

Section 43 says that, if he thinks it necessary, he serves a summons. In that event, Section 36 lays down the manner in which it should be served.

If there are no summonses, Section 36 does not apply?

That is right.

Section 38 is in terms of examining a witness on oath. In the pattern of the old statutes, there are certain people who object to taking an oath and then there are provisions so that they can affirm or bind their consciences in some other manner. I suppose the oath here covers affirmation.

Does subsection (3) not cover that matter?

No; that is not the method of being sworn.

I think the business of affirming is covered by the general provisions of the Oaths Acts.

They say that a person may affirm. The oath is taken wherever it binds a person's conscience but this is the taking of an oath legally required.

I understand that the point made by the Deputy is covered by the general provisions of the Oaths Acts.

You have to go back to the fourth of Edward I, which is a lot earlier than many of these Oaths Acts.

I shall take advice on it.

I move amendment No. 32:

In subsection (1), paragraph (a), page 13, line 37, before ", or" to insert "or infanticide".

The situation as between Section 39 and Section 40 is that a coroner may hold an inquest with or without a jury. According to Section 40, he must have a jury to deal with certain matters. One is if he is of opinion that the deceased came by his death by murder or man-slaughter. It seems to be a peculiar omission to leave out infanticide which was ranked until three or four years ago as murder.

The position is that under the Infanticide Act of 1949 a woman cannot be charged with infanticide; she may only be charged with murder. The initial charge in the case of infanticide is not infanticide; the woman concerned would have to be charged with murder so that for the purposes of paragraph (a) of subsection (1) it really depends on which way you want to look at it. If the coroner is looking at what the person concerned would ultimately be charged with then we are right in leaving out infanticide because you cannot charge a woman with infanticide, only with murder. On the other hand, if it is a question of what the accused person will be tried for or convicted of then there is no harm in putting in infanticide. From my point of view I do not think it is necessary to put in infanticide here but if the amendment is pressed I have no particular objection to it.

It is not right to say that a person must be charged with murder. A district justice could send forward on a charge of infanticide.

Yes, but the charge must be murder.

No. Have you the Infanticide Act there?

I have not.

I do not think it is right to say——

It is right to say that the charge must be murder.

No.

The district justice can reduce that and send it forward.

I think the charge can be one of infanticide.

I do not think so.

It is a matter of looking at the Act. It is intended to include infanticide? It is intended that if the case be infanticide there must be a jury?

That is the intention here.

I do not think it is carried out.

I am not objecting if the amendment is pressed.

If the Infanticide Act is in the terms the Minister says, it will be necessary to insert infanticide here.

I suggest we leave it over.

Deputy O'Higgins was speaking yesterday of this obligation to report a death under special circumstances to the local superintendent or anybody of rank upwards from that. I just want to call attention to the very important power given to any member of the Garda to request that any inquest be adjourned because criminal proceedings are about to be taken.

The Deputy is referring to subsection (3)?

Yes.

It is any member of the Garda not below the rank of inspector.

Yes. That is what the coroner has to be told by a member not below the rank of inspector.

But I have already undertaken to have another look at that.

According to what is here, an important function is being given to an ordinary member of the Garda.

The Minister is going to look into that point.

Yes, on another section.

Section 42, paragraph (b) refers to women jurors?

It includes women jurors, yes.

I mean women are exempt from jury service unless they ask to be put on the jury?

Yes.

This apparently now extends to coroners' juries?

Yes.

This is a majority verdict. Does that hold even in a jury of six?

Yes.

Is that proper?

I think it is.

The fewer the number of the jury surely the greater the obligation to get something approaching unanimity. This means four people could give a verdict.

The Deputy will bear in mind this is possible under the present law and that from now on questions of criminal and civil responsibility may not be considered at the inquest.

I just want to question one matter. On a death occurring and notification being given of an inquest or post mortem to be held the coroner may direct that the body be removed to a convenient mortuary or morgue or other suitable place. That is one thing. I presume that may be a mortuary attached to a hospital not one attached to a church? It could be interpreted that way. I do not think there are many morgues in the country.

Very few.

Then it means it is going to be a mortuary attached to a hospital?

Yes.

Or some other suitable place. And it may be either inside or outside the coroner's district. The coroner is given complete power. The ordinary rule was until the publicans objected the body was taken to a public house. This means it could be taken to an ordinary house. It is at the coroner's discretion. Any of us could have a dead body landed in our house?

We must leave it to the good sense of the coroner to make some suitable arrangement with the local authority.

I wonder what was contemplated here. There are very few morgues. When one thinks of the countryside there is not a great number of mortuaries but it does mean that something other than a morgue or a mortuary will be the ordinary place to which a dead body will be brought. Is there anything under contemplation? Is the old use of public houses going to be adhered to?

No.

Then we are going away from public houses?

Yes.

What are we going to?

Generally speaking, it will mean a mortuary.

There are very few of them.

Mortuaries? Morgues are very few.

And other suitable places. It must be suitable according to the wording. The Minister says not a public house?

Not a public house.

But the coroner could say a public house?

Yes, he could.

On Second Reading, the point was raised about licensed premises and the objection publicans had naturally to performing——

The Deputy will realise that the place must be suitable for either an inquest or a post mortem.

Well, suitable for an inquest. There need not be a viewing of the body when people are going to say: Who is this man, when did he die and of what? I think it is suitable for that purpose.

"Treasure-trove"—that is done by the coroner on his own?

Yes. It may be.

I wonder is that right. "Other than those relating to post mortem examinations or to the removal of bodies ..." that section shall apply.

I am not clear what the point is.

It looks as if that means there has to be a jury.

On treasure trove?

Clearly, that is what it means.

As he wishes. He may have a jury or not, as he wishes.

Does treasure trove ordinarily have a jury?

No.

Does the Minister know of any case where there was a jury for treasure trove?

I do not. Of course, there has not been an inquest on treasure trove for a very long time.

Amendments Nos. 33 and 34 may be taken together.

I move amendment No. 33:

In subsection (1), page 15, before paragraph (b) to insert the following new paragraph:

"(b) adjourns an inquest at which evidence of identification and medical evidence as to the cause of death has been given, or"

The purpose of amendments Nos. 33 and 34 is fairly simple. They are being moved to facilitate the registration of deaths in cases where an inquest which has been adjourned may not be resumed for an extended period—perhaps because the police investigations prove to be unduly protracted or because criminal proceedings which have been instituted are not finally disposed of for a considerable time. It is possible that hardship may occur in such cases to relatives of a deceased by the absence of a death certificate. The amendment makes it clear that the coroner will be able to furnish the Registrar of Births and Deaths with the necessary particulars for registration at an inquest which is adjourned after evidence of identification and medical evidence as to the cause of death has been given. It is envisaged that in every case before adjourning an inquest at the request of the police, a coroner will, as far as practicable, take evidence of identification and medical evidence as to the cause of death.

I move amendment No. 34:

In subsection (1), page 15, lines 47 and 48, to delete "or" and paragraph (c).

I move amendment No. 35:

To add the following subsection:

"(3) Where there is an error in a certificate furnished by a coroner under subsection (1) of this section, he may issue an amending certificate to the registrar and the error shall thereupon be corrected by the registrar in the register of deaths."

The purpose of this amendment is fairly clear. It provides for the correction of errors in the certificate furnished by the coroner of which he subsequently becomes aware.

I move amendment No. 36:

In paragraph (a), page 16, line 18, to delete "section" and substitute "subsection".

Amendment No. 36 becomes necessary by virtue of amendment No. 37. The object of paragraph (a) of the new subsection (2) to be added to this subsection by Amendment No. 37 is to extend to post mortem examinations done for the purposes of Section 19 the restriction in Section 33 (6) on doctors who have recently attended the deceased performing post mortems for the purposes of Section 33. Accordingly, whether the post mortem examination is being made in a case where the coroner thinks it may prove an inquest to be unnecessary—that is, in a Section 19 case—or whether it is being done for the purposes of an inquest—a Section 33 case—a doctor who had attended the deceased within one month before his death will not be eligible to perform the post mortem examination.

This was discussed on an earlier section?

The Deputy will remember we left over the discussion.

I said what I wanted to say on the earlier section, and I hope the Minister will consider it.

I move amendment No. 37:

To add the following new subsection:

"(2) (a) A post-mortem examination under this Act shall not be made by a registered medical practitioner who had attended the person in relation to whose death an inquest is to be or is being held within one month before the person's death.

(b) Paragraph (a) of this subsection shall not apply to a registered medical practitioner who is a pathologist on the staff of, or associated with, a hospital save where the coroner considers that the conduct of such practitioner in relation to his attendance on the deceased person is likely to be called in question at the inquest.”

I move amendment No. 38:

In page 16, line 34, before "proceedings" to insert "criminal".

I am moving this amendment because it has been suggested that the prohibition which Section 53 imposes on coroners or deputy coroners who are solicitors or barristers is unduly restrictive as it would prevent them from acting not only in criminal proceedings arising out of the inquest but also in any civil matters which might arise. The present law imposes no restriction of any kind in relation to civil proceedings of that kind; and the prohibition in Section 37 of the 1846 Act on a coroner acting as attorney in any criminal proceedings against a person who had been charged by a coroner's inquisition has become obsolete because it is no longer possible for persons to be charged with crimes by coroner's inquisition. I think it is reasonable to restore the prohibition in so far as it concerns criminal proceedings but on reconsideration, I do not think it reasonable to extend it to civil proceedings and the insertion of the word "criminal" before "proceedings", as proposed by the amendment, will give effect to this view.

This is a sensible amendment. The section was altogether too restrictive as it stood. The Minister has gone probably as far as he could go in widening it, but I am rather puzzled as to whether, having regard to the recent Road Traffic Act, road traffic cases will be regarded as criminal or civil. I think they might fall into either category at the moment.

I shall consider adding something.

It is odds on that road traffic matters will be considered offences or criminal matters. They are, at the moment.

Presumably, they are not all.

Take things like dangerous or careless driving and all the rest of it. Those are all proceedings that go into the criminal courts. They may have an outcrop in the civil courts afterwards, but they are criminal proceedings.

As the section stands at the moment, the coroners cannot act in either civil or criminal proceedings.

At all?

No.

Section 55 ensures publicity as between the coroner and the Minister with regard to inquests held. What happens after that? Is there any publicity here and should there not be? To furnish a report would be an easy enough matter.

Does the Deputy mean for the Minister to publish a report?

Yes; the Minister must get this for the year ending 31st December and such other things "... shall be in such form and contain such particulars as the Minister may from time to time direct". Why all this pother about the Minister getting it if it stays in the Department?

The Minister has a duty to supervise the situation generally.

We publish all sorts of reports on statistical matters.

I know we do. I am reluctant to add to the flood of publications.

There will be an enumeration of particulars of inquests —not post mortems, only inquests.

There is no objection to doing it; it is just whether it is worthwhile.

If a question is put down of course, it has to be replied to. You might as well publish the return.

This goes back to the oath or affirmation. I do not think that under this section prescribing the form of oath to be taken one could say affirmation.

Yes, but the thing about the affirmation is would we be able to prescribe forms in relation——

May I ask a further question? Until new forms are made, the old forms are to continue. Is there an old form as to the oath to be taken and if so, does it refer to affirmation?

There is an old form.

Only the form of the oath, the particular ceremony at which the person swears. Does that cover affirmation?

This is only dealing with the prescribing of forms of oath. It does not include affirmation.

With regard to this, fees are to be prescribed by regulation which has to come before the House. I just want to call attention to this fact. I am told that there is a practice in the countryside that where people are summoned to assist at a post mortem or an inquest or to give evidence, a local doctor is called in and he gets a rather small fee for attending. If the inquest is a serious one requiring the State Pathologist, he travels down from the city and, naturally and reasonably, he gets a large fee. I am told that there are occasions when coroners have decided not to call on the State Pathologist but to get the assistance of a specialist, of the pathology type, from a neighbouring county. I am told that on those occasions the gentlemen called in are given a very small fee and their attendance is not easy to get. I suggest some attention should be given to that matter.

We have had representations about that and we are considering them at the moment.

This is adding coroners, deputy coroners and temporary coroners to the list of those who are exempted from jury service. Already under the Juries Act, actually practising lawyers are excused. This is bringing in the academic gentlemen.

The point is well taken.

Next stage?

Next Wednesday?

The Minister has promised to look at certain things. When we see the result of that, we may decide to put down amendments. A week is not long enough for that. There is no rush about it.

Say next Wednesday week.