This amendment has been discussed fairly fully and the Minister has given an undertaking to consider the matter to see if he can meet the principle of the amendment in some form on Report Stage. Consequently we are not pressing it.
Road Traffic Bill, 1960—Committee Stage (Resumed).
Debate resumed on the following amendment:
Before section 49 to insert a new section as follows:—
"(1) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he is under the influence of intoxicating liquor or a drug to such an extent as to impair his control of the vehicle.
(2) A person who contravenes subsection (1) of this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding fifty pounds and the Court shall make an order disqualifying such person for holding a driving licence for a period of not less than three months."—(Deputy Coogan.)
Amendment, by leave, withdrawn.
SECTION 49.
Amendments Nos. 60, 62 and 64 could be taken together.
I move amendment No. 60:
In subsection (1), page 39, line 42, to delete "drink" and substitute "intoxicating liquor".
As will be evident these amendments are really drafting amendments in the sense of using the words "intoxicating liquor" in substitution for the word "drink" in all three amendments. It is felt that this phrase is more definite than the word in the Bill at the moment.
Amendment agreed to.
I move amendment No. 60a:
Before subsection (2) to insert a new subsection as follows:—
"(2) An offence under this section shall be an indictable offence or may at the option of the accused be tried summarily."
I think that amendment 60b could be taken with this.
That is so.
Section 49 of the Bill is the section which deals with the offence of driving a mechanically propelled vehicle while under the influence of drink or drugs. There is an important change in this section as against the corresponding section in the 1933 Act in so far as Section 49 of the Bill, in effect, makes a jail sentence mandatory on conviction for the offence of driving while under the influence of drink or drugs. There is a provision in subsection (2) of the section which enables the court to impose a sentence of imprisonment or a fine but subsection (3) makes it quite clear that it is the intention of the Minister that a jail sentence should be mandatory unless the court should find that there are exceptional circumstances which would justify a fine instead of imprisonment.
I think various Deputies will have different views as to the desirability of making a prison sentence mandatory for this offence or for any other offence. The Bill does seek to achieve that object and the view we take of it is that in those circumstances the consequences to a person who may be convicted of this offence are obviously going to be extremely serious. They may impose considerable hardships on himself and on those dependent on him. For those reasons we feel that it is not entirely safe that the decision should be left entirely to one man, to the district justice hearing the complaint. We feel that, having regard to the very grave consequences which would ensue from a conviction under this sentence, the accused person should, if he so desires, be entitled to have his case heard by a jury. Amendment 60a is designed to have that effect. I am seeking in the amendment that an offence under this section will be an indictable offence or that, at the option of the accused, it may be tried summarily.
The amendment has two advantages. It has the advantage of providing for the safeguard to the accused to which I have referred, that a person charged with an offence of this gravity will not be convicted except by trial by a jury if he so desires. It also has the advantage, from the Minister's point of view and from the point of view of anyone seeking to stamp out this offence, of emphasising the gravity of the offence in the eyes of the public as a whole. If the Minister adopts the suggestion in the amendment and legislates so that this will be an indictable offence the gravity of it will be underlined in the eyes of the public.
I should like to support the amendment. It is most desirable that anything that this Legislature can do to eradicate the crime of driving a motor car whilst drunk should be done. I think we should take any steps we can in this House to ensure that this crime is lessened to the greatest extent possible but care must be taken that, in taking these steps, injustice is not done. I apprehend that if the section as drafted at present is allowed to stand that, in some cases, injustice may result. Deputy O'Higgins has referred to the fact that the decision in what is now going to be an extremely serious charge will be in the hands of one man, a district justice. Considerable responsibility is borne by district justices in many instances at present but in this section, as it is drafted at the present time, whilst it is indicated in Section 2 that a prison sentence is to follow, there is a proviso which states that in special circumstances a district justice need not impose a prison sentence.
There has been no effort made to define the special circumstances and I think it is quite possible that one district justice may take into account one aspect of the accused's behaviour and another district justice may take into account another aspect of that behaviour. It is quite possible that in the course of time the meaning of these words may come to be defined by a decision of the High Court or the Supreme Court but, pending that, there is going to be confusion as to what the words actually mean and disparity throughout the country as to the application of the section. Some district justices are more lenient than others. Some may take into account the family circumstances of the accused. Others may decide that that is not a matter which should concern them and that they should take into account the degree of doubt in the case. Others may feel that the degree of culpability of the accused should be a factor. We are leaving the situation in a fairly uncertain state by leaving the section as it is drafted.
There is considerable weight in the argument that, in view of the fact that there is likely to be a conflict in the interpretation of the section, the accused should be given the option of going to trial with a jury. As Deputy O'Higgins has pointed out, this amendment also has the effect of making it clear to the public at large that this is a most serious offence. It seems to me that this amendment is desirable in order to avoid what could amount to an injustice. If, in fact, we were able to devise some fairly foolproof system by which it could objectively and scientifically be established that an accused person was guilty of this offence there would be a great deal to be said for making a prison sentence mandatory but, at the present time, we have no such system. We have no blood test or breath test which would decide that a person is not capable of driving a car.
The accused person's freedom now depends on the subjective opinion of persons who have seen him, on persons such as Guards and witnesses, and on objective tests carried out by a qualified medical practitioner. Because of the uncertainty that exists we are imposing too heavy an onus on district justices in this matter. I feel there will be cases where, if a man is charged with this offence in one county, he will have a good chance of getting off and, if charged in another county, a conviction will mean a sentence. That is an undesirable situation and it could be remedied to a considerable extent by the acceptance of this amendment.
Mr. Ryan
I support to the full the amendment tabled by Deputy O'Higgins and Deputy Costello. In the past, in cases in which people have been charged with drunken driving, a conviction has not ensued where, it was felt by some, it should have ensued. The effect of making this provision mandatory will be that a district justice will be twice as slow in future about convicting at all. Certainly that will be the position in some cases. On the other hand, we will still be faced with what has happened in the past: justices have convicted persons of drunken driving solely on the inexpert evidence of members of the Garda. A Garda will use in court such phrases as "He staggered" or "His speech was thick" or "He spoke slowly" and, in the eyes of many justices, such phrases are sufficient to convict the man, even though the medical evidence may not be against him. Where there is trial by jury, the hearing of the charge against the accused must be gone into in detail and the accused is entitled to the benefit of any doubt. If we propose to compel the judiciary to impose a sentence of imprisonment of six months, we must also provide certain safeguards to ensure that a man is not sent to prison in respect of an offence he has not committed.
As Deputy Costello said, the special circumstances which justices or judges may properly take into consideration are not defined. Some justices will have regard to the special domestic circumstances of the accused. Others may consider the circumstances in which the accused person took the drink and may consider whether that person was a completely free agent in the consumption of that drink. Others may consider that special circumstances refer only to the manner of driving. Others may consider that the special circumstances refer to the amount of damage done. This is not a safe clause to put in this Bill because it is capable of so many varied interpretations. As Deputy O'Higgins and Deputy Costello have pointed out, these interpretations will depend upon the whims, the fancies and the prejudices of one particular man, if we leave the provision in the Bill in its present form.
If we provide that this be an indictable offence, the accused will be entitled to trial by jury. It may be that the Minister thinks it would be unsafe to have such a charge heard by a jury because most jurors will be motorists and might tend to lean in favour of the accused. I believe the public conscience is sufficiently disturbed about the offence of drunken driving and the majority of motorists are now as anxious as the Minister or the Garda to stop the drunken driver careering around our roads. By and large, juries will not lean in favour of the drunken driver. If it is trial by jury, then 12 good men and true will have an opportunity of evaluating the evidence adduced on behalf of the prosecution.
It is not a general criticism of the Garda to say that there have been cases in which individual members of the Garda have become involved in a row with a man who has had a few drinks. It is not uncommon for people under the influence to become argumentative. There have been cases —there will be cases—in which the Garda will give as good as they get. That, however, engenders a feeling of illwill and leads to prejudiced evidence on the part of the Garda in some cases. Such phrases as I have mentioned will lead to a position in which the mind of the justice will be prejudiced right from the beginning. We know that many justices feel prosecutions would not be brought unless the offenders were guilty and they are inclined to accept, without the critical examination to which a jury would subject it, the evidence produced by the Garda.
Perhaps an illustration will serve. I am aware of a case in which the medical evidence was in favour of the accused and the Garda evidence very much against him. The district justice was satisfied that he had to convict because the offence occurred on Christmas Eve. Apparently that was sufficient proof that the man was drunk. I doubt if 12 members of a jury would accept that all good Christians are drunk on Christmas Eve. It is in order to prevent a conviction in such circumstances and to ensure that the accused person is given trial by jury that I believe this amendment is worthy of support. If we do not give this right to a person charged with drunken driving, we will then be in the ludicrous position of giving trial by jury to a person who commits a common assault, maliciously damages property, or does something more heinous still, while refusing it to an ordinary citizen who in a momentary lapse may consume an excess of alcohol. Our legal system is there to protect the individual as much as society. If we refuse trial by jury in such a case, we will not be safeguarding the interests and liberties of the individual.
At an earlier stage, I expressed the hope that there would be a separate prison for those who commit driving offences. Six months' imprisonment on a law-abiding citizen for an offence of drunken driving would not be so serious if he were incarcerated in a separate prison for driving offenders, but it is a very serious punishment when such a person is thrown in with thieves, robbers, prostitutes and all kinds of people who have a long career of sordid crime behind them. If there were a separate prison in which people could live in a certain degree of freedom and be able to devote their talents and themselves to more fruitful occupation than is to be found in common prisons, six months' imprisonment might not be such a very serious punishment. It would be a serious restriction and would curtail their liberties. We are throwing these people into a common prison, the common prisoner in which has had in most cases the right of trial by jury. These people ought to get at least as much as is given to prisoners who are habitual criminals and known to be such.
I want to make three short points. I believe that people who drive should not drink and that people who drink should not drive. I do not think that is an unreasonable stipulation. I have every sympathy with a group of men who go out to make a celebration but I regard it as a perfectly reasonable requisition that, if they do, one member of the party will go on the wagon for that night, with the assurance that on some future occasion some other member of the party will undertake that disagreeable assignment.
In my opinion, we have got to make up our minds to the fact that sooner or later we will have to accept it as a general rule of conduct that those who drive should not drink and that those who drink should not drive. The more manifest that fundamental principle is to our mind, the more we as legislators ought to be vigilant, lest in our zeal promptly to impose these standards on the society in which we live, we make the grave mistake of seriously abridging justice to which every man is entitled. Simply because a particular irregularity of conduct shocks us particularly should involve us in no departure from the rule that the humblest and the most abandoned person in our society is entitled to full justice and is entitled to be deemed innocent until the State has proved him guilty.
Sometimes, when we get to discussing common or garden offences, relatively trivial offences compared with the capital crime of murder, the crimes of burglary and so forth, we are liable to forget that that obligation under our system of law subsists, that a man is deemed innocent until the State in open court has proved him guilty. I do not think that in respect of drunken driving or any other offence against the law, we should lose sight of that fundamental principle, for, when we make a breach upon it in any regard, it is only a matter of time until the whole structure of criminal law begins to fritter away. Our system of criminal law is the right system and preferable to the continental system. Here, we deem a man to be innocent until the State has proved him guilty. Some guilty persons may escape but it is the best safeguard I have yet discovered in my life to ensure that an innocent man is not condemned.
In the full knowledge that I hold the strongest possible views on the man drinking and driving at the same time—no one in the House could feel more strongly about it than I do—in the full knowledge of the fact that I feel it is perfectly simple for any man to avoid coming within the ambit of these sections at all, I want to make certain submissions in regard to the Bill as at present drafted.
Any provision of this House which makes it mandatory upon any court of law to send a man to jail is a bad provision. The whole theme of our system of justice is that a court of competent jurisdiction shall have a wide discretion to impose a suitable penalty in all the circumstances of the case and in my experience, wherever you make it mandatory on a court to impose a certain specified penalty, evils begin to creep in. I have had experience myself in connection with fishery offences. Exasperated by the failure of courts to impose what I thought were adequate penalties on foreign trawlers, I asked Dáil Éireann to make certain penalties mandatory. Almost invariably when that happens, some case turns up and you find that the mandatory principle has broken down in justice. The furthest the mandatory provisions of the fishery law went related to the confiscation of gear and to the size of the fine, but here, this section virtually makes it mandatory to send a man or woman to jail.
I do not care how farseeing this House is, I do not believe any law can with propriety make it mandatory to send a man or woman to jail, without leaving the court a discretion. There is certain discretion here in subsection (3), where the court considers there are special reasons for not imposing imprisonment, but, as other Deputies have said, how those words will be interpreted is hard to tell. Some justices may take a very restricted view of that and determine that only where the person's health would be gravely injured or where there were circumstances of that kind would they be excused from the obligation to impose imprisonment. I think that is all wrong. You have either got to trust the court with discretion to impose the penalties prescribed within the limits of the Bill or you get into a situation which is impracticable, to begin with, and liable to wreak very material injustice in addition.
Some district justices will simply cleave closely to the letter of this statute and impose imprisonment, although they feel that it is harsh and even unjust to do so, because, they may say, there is no "special reason". Other justices, faced with the duty of imposing imprisonment, will simply find the charge not proved because they feel the obligation to imprison would distort justice. Therefore, I think the discretion ought to be left in the court to determine what the appropriate penalty shall be in each individual case within the limits laid down in subsection (2).
The second point I want to make is this: I suppose it is true that there are offences where a man or woman is liable to be sent to jail without the right of having the case heard by a jury but in general principle, I have the feeling that where a jail sentence is involved, a defendant is entitled to claim the right to have the case heard by a jury. There is no use in concealing from ourselves that a jail sentence can be a very different thing for different men. For a man who has been in and out of Mountjoy all his life the fact that he spends a further seven days or a month in Mountjoy does not make very much difference to him. It can virtually ruin a man who has held his head high in society. The father of a family recoils in horror at the thought of coming home to his children from Mountjoy Jail. The length of his sentence in jail is a matter which is largely irrelevant. The best elements in our community regard committal to Mountjoy Jail in itself as a shocking catastrophe which would materially affect their whole lives. I must earnestly impress on Dáil Eireann that we must not lightly legislate in regard to a matter of that kind.
We are faced with the fact—and we have got to face it—that until a new attitude develops in this practice, there is a tendency for people who have no criminal background or criminal inclinations and no absence of public spirit——
I do not like interrupting the Deputy but I think this is more appropriate on the section rather than on the amendment.
Is it not trial by jury? I thought I was making a most eloquent appeal.
Eloquence is all right but it is a matter of order.
This is trial by jury.
It is amendment No. 60a.
Amendments Nos. 60a and 60b.
The Deputy was discussing the section.
I am discussing the question of the right of a man to opt for a jury trial, if he is opposed to having his business summarily disposed of. We should not close our eyes to the fact that situations are liable to arise in which men with no criminal disposition, in fact, men of the highest public spirit, could conceivably get into a jam in which there was a genuine difference of opinion between the authorities and himself as to whether he could fairly be described as driving a vehicle in a public place under the influence of alcoholic liquor or a drug. He ought to have the right in those circumstances to go to a jury. I am not saying that he must go to a jury; I am saying that if he says: "I protest most indignantly. There is not a shadow of truth in this allegation; I want to be tried by a jury", he should have that right. I think that is a reasonable proposition. It is one the Minister ought to be prepared to try to meet.
If that is acceptable and we make, as I think we should make, the thing an indictable offence which gives the defendant the option to be tried summarily or to go before a jury at his own election, I do not think I trespass unduly if I suggest to the Minister that, in that event, we ought to go a step further and devise some acceptable test which the defendant would have the right to call for if he were apprehended by the Garda and the allegation made against him that he was driving under the influence of drink. It may be that the question of the blood test or the breath test might be more properly raised on the section itself. There is an amendment which deals with it but in the case I make in support of the amendment by Deputy O'Higgins, I should like it to be borne in mind that if we give the right to go to a jury, as we think the people should have, we ought to provide every reasonable facility that the most precise knowledge available through scientific tests is accessible to a man who wishes to present it to the court when his case comes up for examination and determination.
If such cases can go to a jury, I think we would have to appoint a couple of dozen more judges and there would be no end to their work, having regard to the fact that nearly everyone would take advantage of the right. At the same time, I agree in principle with what Deputy Dillon said. It amazes me how severely the State proposes to deal with people who commit these offences, when, to a large extent, the State itself condones this offence by allowing liquor to be sold. It actually gets a cut out of it. The point I am trying to make is that we commit part of the offence ourselves. For that reason, I do not think we should be so anxious for such powers to deliver people to Mountjoy Jail without the right to be tried by a jury. The only point is that there would be no end to litigation.
I wonder would the Minister consider making similar provision in the section to that which is contained in Section 6 of the British Road Traffic Act, 1960?
I should like to have from the members who spoke so eloquently on this an indication as to whether their objections stem from the fact that there is in this section a penalty which carries a mandatory jail sentence. If the amendment really stems from that, do those who now propose the amendment feel that this mandatory jail sentence should possibly be wiped out? If that were the real basis of the views expressed here this morning, I would say to the House that I should like to have a further look at the whole thing on that basis. It might possibly short-circuit this discussion.
We are opposed to a mandatory jail sentence and we believe that discretion should be left to the courts to measure the punishment.
If that were deleted, would the movers of the amendment and the House generally still feel they wish to carry this amendment?
Giving a man the right to trial by jury?
Possibly that is an unfair question but I merely ask it for information, to try to get the mind of the House on the matter.
Mr. Ryan
If discretion is left to the justice to impose a prison sentence, there is a right of appeal to the Circuit Court. If there were a mandatory penalty, we would have to balance the operation of the court's system, as Deputy Sherwin has already indicated, and we would have far more jury cases if we were to make drunken driving charges indictable offences. In the case of a mandatory prison sentence, it is only right that there should be trial by jury. If there is not mandatory imprisonment on conviction for drunken driving, the necessity is not so great and I believe there would not be as many cases of unfair decisions.
If we were to wipe out these mandatory jail sentences, I believe we would weaken the system we are hoping to adopt, and the benefits we hope that system will have in regard to the eradication as far as possible of too frequent cases of driving while drunk or while incapable as a result of drink. I suppose what Deputy Sherwin has said is true to a degree, that if we were to give an option of referring these cases to the circuit court for trial by judge and jury, under our present system of court sittings, circuits and so on, it could well be said that we were cluttering up that system. As the Deputy has also said, we might possibly find ourselves in the position of being obliged to appoint further judges. I do not think that is a good argument. If that were the only real difficulty, it would not be a good argument to say that we will not do this or that, because it might clutter up the system already in operation, or that it might mean more judges would have to be appointed at a further cost to the community. I do not think anyone could really regard that as a legitimate argument against any course proposed to be taken.
In justification of the line of making the jail sentence mandatory for this offence, there is the escape clause which has been mentioned that, in special circumstances, the jail sentence need not necesarily be imposed. I think it was Deputy Costello who said that these special circumstances are not defined. I put it to the House that they are not defined for the good reason that an attempt to define the various circumstances that might arise at various times in various places, or the circumstances which would be regarded as special, might merely confine the application of that clause, and might confine it narrowly and in such a way as to exclude what would undoubtedly be regarded as special circumstances, if there were no definition of "special circumstances".
If we were dealing merely with this amendment and ultimately decided to wipe out the mandatory jail sentence in these cases, if we were to deal with it as it is rather than make this offence indictable, with an option to the defendant to have it heard summarily, as Deputy Dillon said, they would be dealt with summarily, unless the defendant opted for trial by jury. I would go further and say that if we were to go in that direction, we should have them dealt with summarily and with the option to go to a jury, and that option should not only be the option of the defendant but also of the prosecution.
I am putting these points of view both on the amendment, and on what I feel might be an amendment to the amendment, or as I have said, a possible wiping out of the mandatory jail sentence, in order that members of the House may have an opportunity of thinking along these lines. In the meantime, I should like to give the matter more consideration, and if an amendment is to come before the House, possibly we could bring it before the House on the next Stage.
May I summarise? The Minister has spoken on this matter and it is our obligation to try to answer him. My first reaction, if the mandatory element of the penalty is removed, is that I do not then see the same formidable objection to summary proceedings, but if the mandatory penalty remains, I think there should be an option to go to a jury. I see no objection to that option being in the State and in the defendant.
The whole principle of a mandatory penalty is a bad principle and it is a principle I should like to see go. That, therefore, would suggest to me that what we would like best would be that the mandatory principle would go, even if that meant summary jurisdiction, without the option of access to a jury. There is always the right of appeal, if it is felt injustice has been done. I am bound to add that my ideal would be that the mandatory principle would go. Where there is a penalty of imprisonment, the defendant ought to have the right to go to the jury.
I see the difficulty. We do not want to clutter up the circuit courts. I imagine that in a very large number of cases where there is material to go to a jury, the man knows pretty well what the facts are, and if the facts are manifest or of a character that he does not even remember what they are, a jury will pretty clearly understand what they mean. I doubt if the cluttering up of the courts would be as great as the Minister apprehends because it is only the relatively exceptional case where there is a genuine, valid, positive clash between the defendant's recollection of the circumstances and the Garda's recollection, that recourse would be had to a jury. We will withdraw the amendment and, in the meantime, the Minister will turn it over in his mind. We will do the same and we can both think over amendments for Report Stage from which an agreed solution might emerge.
My attitude to this prison sentence has been made clear before. Drunkenness has now become accepted as an illness and not a crime, and the correct thing to do is to put the person into some form of isolation for treatment, as suggested by Deputy Ryan. I want to make that point clear before I appeal to the Minister to be very slow in removing the mandatory principle in the Bill. That is one of the strong points in this Bill and is an advance on previous road traffic legislation, demanded by a general public feeling that people were not sufficiently conscious of the seriousness of driving a car while having drink taken, thus creating a danger to the public.
While we all appreciate the human factors involved, we want also to try to reduce the incidence of drunken driving. If there is not palpable evidence that the penalty for this offence is serious and inevitable, except in exceptional circumstances, the Bill will not have the impact on the public consciousness which the proposed inclusion of this mandatory power has already had. While it is a pity it has to be included, human weaknesses being as they are, the Minister had no alternative. Before he decides to remove it, I would appeal to him to think very carefully about it, because its exclusion would weaken the Bill. I concede that the case made by the Opposition concerning trial by jury is good and that the amendment is a good one. There must be some way of meeting the Opposition's objections on this question of summary trial and the question of the mandatory penalty. In any event the Minister ought to be very slow to withdraw the provision in order to meet the valid objections of the Opposition.
I would regard a mandatory jail sentence for a first offence as too severe a penalty. It would be appropriate to impose such a penalty where a person is addicted to drink and commits the offence several times, but I certainly would not approve of a jail sentence for the first offence, or possibly the second offence.
Major de Valera
What are involved here are largely the questions of a deterrent and the public consciousness of the seriousness of the crime. Where the previous speaker is missing the point is in looking at this matter from the personal point of view of the delinquent in the case. We all have sympathy there and I would go so far as to say that a special provision, something on the lines mentioned by Deputy Dr. Browne, might very well be made. However, this is a matter of serious consequence to the public and to individual citizens and we cannot afford to take that approach generally. A mandatory sentence in the cases we have in mind is almost imperative.
A mandatory sentence of imprisonment?
Major de Valera
Yes, specifying the period. One might make it short or long. The important point to remember is that, through such delinquency, the lives of citizens may be endangered, that, through such negligence and default, another citizen may lose his life. That is the question at issue. Suppose somebody assaults another and the assault results in serious injury. That will almost inevitably attract a jail sentence. When this question is looked at from the point of view of the public, there is a strong case to be made for a mandatory sentence of imprisonment, whether it is long or short, or even a suspended sentence.
Mr. Ryan
Lest the motives of those who moved or supported the amendment are misunderstood, I want to reiterate that we have no sympathy whatever with the drunken driver. We believe he must be cleared off the road. However, we have the feeling that the effect of a mandatory prison sentence will be that, justices being human and seeing many decent people before them, they will refuse to convict and there will be fewer convictions for drunken driving than ever before. I agree completely with the Minister and with Deputy de Valera that we need a deterrent.
That brings me back, if I may do so without being irrelevant, to Deputy Coogan's amendment to the Bill which was to provide for another offence of impaired control, rather than of absolute incapability. Most people convicted of the offence of drunken driving start drinking with the intention of not becoming drunk, but they go on and on and their judgment of their capability to drink becomes impaired by reason of the consumption of alcoholic liquor. It is not milk they are drinking; they are not in a position to form a proper judgment and their sense of responsibility is somewhat impaired. In most cases, people drink with the intention merely of being sociable or quenching their thirst.
All we want to do is to provide a deterrent and I believe Deputy Coogan's amendment provides the greater deterrent, because it sets out that if the man's control is impaired, he may find himself charged with an offence. It will not be such a serious one but at least he must decide in relation to his ability at an earlier stage. Impaired control is something which can be decided upon much earlier and much better than absolute incapability. The House appreciates that the Minister is prepared to look at Deputy Coogan's amendment and to think about the right of trial by jury. Therefore, we can expect some appropriate amendments with deterrents and proper punishment for the degrees of irresponsibility.
Amendment, by leave, withdrawn.
Amendments Nos. 60b and 61 not moved.
Question proposed: "That Section 49, as amended, stand part of the Bill."
This is the section on which I was to make the case I refrained from making earlier. Deputy Dr. Browne has an amendment down proposing a new section setting out the procedure for a blood test. That can be discussed in detail at the appropriate time. I want to put it to the Minister that whether we ultimately come to the conclusion, after reflection, that there should be a mandatory jail sentence with access to a jury or that the mandatory element should be removed and summary jurisdiction restored, where you are dealing with the liberty of the subject and the right to put him in jail, the closer you can get to virtual certainty in regard to the quality of the offence, the better. It is common knowledge that some men can take two martini cocktails and drive a car without having their driving capacity impaired. Others could not. I imagine people who are accustomed to drinking gin acquire a tolerance which those who are not do not have. So you could have the situation of two men, whose consumption of alcohol was identical, one acting in a way which would bring him into court for having driven a car under the influence of drink and the other, having consumed precisely the same quantity at precisely the same time and place, passing by without any comment upon his conduct.
What we should aim at in this legislation—I want to commend this to some of the Deputies who feel we ought to give the public a shock—instead of trying to shock the public, we should consider this. Mark you, the public react to shocks and then settle back pretty quickly into the even tenor of their ways. We passed the new licensing laws and every pub in Ireland closed on the dot. They are all closing now at any hour they like again. The whole thing has gone up in smoke. In rural Ireland, the thing has become a complete farce. It is the subject of general agreement between the local sergeant and the publican. If the hour does not suit, he opens at other hours.
This is news to me.
But it is hardly relevant.
It is relevant to this. The argument is made that we ought to give the public a shock. Deputy de Valera took the view there was merit in that argument, that the mandatory principle woke the public up with the shock. I think it would, but it would fade away. The essential element in criminal law is certainty of detection and, as far as possible, certainty of the nature of the crime, certainty as to where the Rubicon lies, and that if you cross that Rubicon, you have broken the law. That is objectively true, and subjective references will not affect the objective fact that if you cross that line you have broken the law.
When you start saying a person is under the influence of drink, I think that is virtually impossible to determine. The principle we should adhere to in Dáil Éireann is that those who drive should not drink and those who drink should not drive. Taking that as the sheet-anchor of the purpose of our legislation, we ought to try to devise a test which will determine with as close approximation to the objective truth as it is possible to attain, whether a person has consumed a quantity of alcohol which is in excess of the maximum limit consistent with safety. Up to relatively recently, there did not appear to be any such test. It now appears there are tests based upon blood tests and upon breath analysis which can be expeditiously done and which are reasonably reliable.
In those circumstances, where a person is charged with the offence of having consumed too much alcohol before driving a car, he ought to have available to him the opportunity of saying: "Very well; I want a blood test to be made and a breath analysis to be made, on the understanding that the results will be presented in evidence in any court of law where I am arraigned." Is that not what is substantially proposed in Deputy Dr. Browne's amendment?
Yes, in the new section?
I think I shall wait for the Deputy's amendment. Mirabile dictu, I find myself in agreement with the Deputy, which causes me some qualms of conscience——
The Deputy should examine it.
——but I think the Deputy is right. The effect of his amendment is, I take it, that if the person wants a breath or blood test, he is entitled to ask for it. The tests cannot be done without his consent?
No, but it can be held in evidence against him——
That he refused. I think the Deputy is going too far there. I think it would be more reasonable to say it must be accessible to him. If he wants to use it, he should have it. If the Deputy will go so far, I shall support him.
I am not so certain that this amendment will protect everybody.
We have not come to Deputy Dr. Browne's amendment yet. It is on the next section.
Mr. Ryan
Deputy Dr. Browne's amendment is related to Section 49.
It cannot be taken at this stage. We are on the section, as amended.
Question put and agreed to.
NEW SECTION.
I move amendment No. 61a:
Before section 50 to insert a new section as follows:
"In any proceedings for an offence under section 49 of this Act the court shall have regard to any evidence which may be given of the proportion or quantity of alcohol which was contained in the blood of the accused in excess of .5% as ascertained by analysis or measurement of a specimen of blood taken from him with his consent; provided that if it is proved that the accused when so requested at any such time refused to assent to the making of such test or measurement his refusal may, unless reasonable cause therefor is shown, be treated as supporting any evidence given on behalf of the prosecution or as rebutting any evidence given on behalf of the defence with respect to his condition at that time."
I move this amendment for a number of reasons. First, because I should like to hear the opinions of the Minister and the House in greater detail than already given to us on the question of bringing in some form of chemical or more scientific test than those already available for the assessment of the amount of drink taken by a defendant in a case under Section 49. I have restricted this amendment to the suggestion of the blood test merely in order not to confuse the issue by discussing the possibility of the usefulness of a breathaliser analysis or a urinary analysis. I restricted it merely to a blood analysis in order that the discussion could simply be on the principle of the use of a scientific test in the determination of culpability in a case taken under Section 49.
The best case was made by many speakers on Section 49, namely the desirability of having some more specific what Deputy Dillon called a rule or thumb or a line over which you cross which makes you guilty of the charge. It is particularly necessary that we should have some more accurate test now in view of the much greater seriousness of the result of the charge, namely, the mandatory sentence. The present system of assessment is so crude as to be virtually useless.
I should like to put this point before the House. It arises to a certain extent out of the amendment put forward by Deputy Coogan. There should be no distinction in the end result between the person who is incapable of driving and the person who, as a result of having taken alcohol, is a danger to the public. I think we have to accept a completely new approach to drinking while driving. There is the person who is incapable of driving as a result of drink. That is so clearly and readily acceptable to us as something which should be stopped without any question in any way we have at our disposal that there is no need for discussion about it.
I should like to bring to the attention of the House not the drunken driver nor the driver who is drunk— the words used here in the discussion of the section—but the driver whose capacity to drive has been undermined as a result of having taken drink. I am not at the moment primarily concerned with the drunken driver, but with drinking. There are three types of motor car driver—the person who has not taken drink at all, the person who has taken drink to the extent that it impairs his judgment but leaves him capable of driving and the person who has drink taken to the extent that he is incapable of driving. I think attention was drawn to that distinction by Deputy Coogan's amendment. I am very glad the Minister will re-examine that question carefully before the Report Stage.
I do not think there is any doubt in most people's minds who have examined the question that the present clinical tests are so completely fallacious, so open to error and to misinterpretation as to be virtually useless in the case particularly of the person whose judgment is impaired, not the person who is incapable of driving. The person incapable of driving is so obviously so that the clinical tests are virtually useless.
The tests of co-ordination, whether a person can walk along a straight line, whether a person's speech is slurred, whether the pupillary reactions are slightly slow, whether he zig-zagged along the road when driving, can vary so much in degree as to be virtually useless, particularly in the type of case where the power to drive has been diminished. Persons are now driving cars at probably from 50 to 100 m.p.h. Consequently, the dangers of reduced reaction or diminished powers of co-ordination or reduced powers of response to emergency are, and must be taken to be, very serious considerations in the question of the drinking driver, the person who has taken drink but who is driving a car.
Emergencies now occur so rapidly, with increased traffic and increased speeds, that we must take more seriously the person who, through having taken drink, is no longer a person who can safely be trusted with a fast car, a car capable of doing 50 m.p.h. and over. Therefore, if one is to restrict oneself to purely clinical tests with this type of dangerous driver, the person who has drink taken, the person who has diminished power or control over the car, I do not believe there are any clinical tests which are of any use whatever.
The only test that that person is not quite as good a driver as he was before he took his two double whiskeys or two pints of stout, the only test that he is not as capable as he was before drinking, is the test of the emergency, that is, that he does not answer to the emergency when it comes up, the accident happens and the person is killed, wounded, maimed, or whatever it may be. I do not think that, clinically, it is possible in most cases to say that that person's powers of response at the time of the accident were so diminished as to render him liable to this mandatory jail sentence.
It is impossible for any doctor to say in that middle case that this person was responsible through having drink taken before the accident. One has this great diversion of opinion between the lawyers who are merely following their profession in taking the two sides but, in the medical evidence, it is most disedifying, I suppose, if one looks at it superficially, to read in the national and provincial Press of the doctors of each side taking completely contrary views on what should be a fairly simple question of deciding whether or not a person was responsible for an accident as a result of having drink taken. However, I think there probably can be bona fide grounds for a difference of opinion as to whether a person is responsible for an accident as a result of having drink taken and because of the fallacious nature of the clinical tests which are available to the doctor in this type of case. Therefore I think it is absolutely essential that we should seriously consider the introduction of some kind of chemical test which may have its own defects but which, from the point of view of accuracy, is far and away superior to the grossly inaccurate and unreliable clinical tests which are available at the moment and which can vary from individual to individual.
Even in a condition of absolute sobriety, the inability of an individual to walk a straight line or pick up matches off the floor, the co-ordination of hands or feet, in whatever the test may be, may vary very much in an individual also who has just had an accident, or who is suffering from shock, or apprehension of a charge or the seriousness of the prospect facing him. All these things can affect the clinical tests so much as to make them virtually useless.
There are available three tests to which I have referred. The breathaliser entails the inhalation of the breath containing alcohol into a machine. The effect of ethyl alcohol on an indicator in the machine changes the colour of a chemical indicator which moves a hand over a disc and indicates immediately the alcohol content of the breath. The generally-accepted standard is that where there are over 50 milligrammes present that person is no longer a safe person to drive a car. In Denmark, where this test is used, that person is suspended for two months. If he does not accept suspension, a blood test is used and if he is found to have more than 150 milligrammes of alcohol per 100 millilitres of blood he is sent to jail for varying periods. The breathaliser is probably the most accurate of the chemical tests. I have not included it here because probably it would require a much more complicated and costly apparatus than that required for the simpler blood test.
There is then the possibility of using the blood test. The blood test depends on the taking of blood from the person immediately after the incident and if there is between 0 and 50 milligrammes of alcohol per 100 millilitres of blood then the person is not suffering in any way from the effect of alcohol and can safely drive a car. If the person is found to have more than 50 milligrammes in 100 millilitres of blood and less than 100 milligrammes per 100 millilitres of blood then he is unfit to drive a car and a danger to the public. If he has 150 milligrammes or more per 100 millilitres then he is what we call "dead drunk", so drunk as to come under the Minister's clause "incapable of driving a car."
This blood test presupposes this very important category of persons who are not incapable of driving but who are a danger to the public because of the presence of between 50 and 150 milligrammes per 100 millilitres of blood. This test is reliable but it has a couple of theoretical weaknesses or objections. I think they can be overcome. One weakness is the fact that, in taking blood, the doctor uses alcohol to clean the skin and in that way the needle going through the skin could take up some alcohol and thus alter the end result. We must and can readily avoid this by the choice of a different cleansing agent. The second objection is the objection of the analyst's error. This is the error found in most chemical work. Where analysts are doing a test for the first time or do very few tests, they are not quite as accurate as if they do hundreds of tests. There is an easy way out of that which is to try to centralise the test so that one analyst can do most of the tests thus increasing the accuracy.
The other weakness, which may have worried the Minister, is the fact that there are up to 200 different ways of measuring the amount of ethyl alcohol and each one of them carries its own slight inaccuracy. I think that difficulty could be overcome by laying down by regulation the uniform form of analysis or method by which the ethyl amount of alcohol is found. In that way the analyst's error could be reduced to a minimum by centralising the tests and by restricting the type of test to the same test for the whole country. With increased practice would come increased skill and restriction in error. Then the variations due to the test error would be the same and the defects of the slight error due to analyst error would be reduced to the minimum.
The case for this test is overwhelming. The test has been tried out and approved by a number of committees. In Britain the Medical Research Council have set up a committee, under Professor Drew, which have made it quite clear that the tests were perfectly accurate within the slight errors I have mentioned. A British Medical Association Committee have said that they cannot conceive of any circumstances in which it could be considered safe for a person to drive a motor vehicle on a public road with an amount of alcohol in the blood greater than 1.5 per cent, that is 150 milligrammes per 100 millilitres of blood.
The London Times has also given its imprimatur to these tests by saying: “Nor is there any doubt as to the efficacy of the blood-alcohol tests as a measure of fitness to drive. Whereas the rough, if ready, clinical examination tests at present in use are notoriously unreliable, the same cannot be said of the biochemical tests.” These tests are used in many countries. In Norway they have been used since 1926. They have been used in Sweden, in Denmark and in between 40 and 50 States of the United States. They have been used in Canada for many years. We are not breaking any new ground if we decide seriously to consider the use of these tests. The position now is that if we continue to rely on these very crude clinical tests, which are so crude as to make them relatively valueless, and which justify the differences of opinion which one sees in the medical evidence given before the courts so often, it is very wrong of us to ignore the fact that scientific advances have made it possible for us to leave aside these clinical tests and not to use them as a make-believe in coming to a final decision. We can use them if we wish as a makeshift in coming to our final decision.
It seems to me that we cannot possibly leave aside the fact that these scientific tests are available. It would be like treating diseases with the old remedies when we have antibiotics available. It is just as if a person came to a doctor with a cough and the doctor examined him with a stethoscope and said: "You are all right", and did not take an X-ray; or if a person experienced pain after an accident and the doctor told him he was all right but afterwards the person was found to have a fracture. The courts would find that the doctor in those cases was guilty of malpractice because he did not have an X-ray of the person's chest to see if he had tuberculosis or an X-ray of the bone to see if it was broken. Similarly where a doctor tries to assess the degree of culpability of a person who has drink taken but is not drunk, and relies solely on clinical tests, when there is a scientific test available, he could probably be accused of malpractice in omitting the scientific tests and denying the courts the great value which they have.
I fail to see what objection there can be to the introduction of tests of this kind. If a person has taken drink and knows that he has not taken it to excess, clearly he would agree to the test because he knows he would be proved innocent. To that extent it would be a great help. The amounts of drink which create the different levels in the blood could be publicised. I understand that a pint of stout or a pint of beer will leave the body just under the 50 milligramme level. Two pints will bring it above the 50 milligramme level but under the 150 milligramme level. A person can take two small whiskeys or a double whiskey and still remain under the 50 milligramme level; if he takes more than that he will go above the 50 milligramme level and thereby reduce his co-ordination and reliability in driving a car. In that way, people who want to drink could continue to drink in moderation. It would be possible for them to know beforehand that if they drink in excess of that specific amount, they bring themselves within the penalties laid down by the House for so doing.
It seems to me that we have every right to treat these people in the same manner as we treat the person under Section 48 who is told that if he is, to his knowledge, suffering from any disease, and continues to drive a vehicle, he will be a danger to the people and will be subject to certain penalties. If we introduced these blood tests it would be possible to tell the individual: "If you take so much alcohol you are quite safe; if you take so much more you come within the 50 milligramme and 150 milligramme level for which you can be penalised and if you go above the 150 milligramme level the penalty can be so much greater." The individual then has the right to decide to what level he will drink, or when he will stop drinking. He is in a position to make the decision for himself and should be ready to take the consequences of any decision he takes.
All around us we see countries who long ago have availed of the great advantage which follows the use of these blood tests. They would be a great help to the court and to the judge, who would be able to say: "That is the finding of the analyst." It removes from him the appalling responsibility which he has at the moment of trying to decide whether a person is culpable or not, and it would remove the rather disedifying situation in which doctors quarrel over the question of whether or not a person had picked up matches, or whether his speech was slurred. It would also remove attempts by Gardaí in their own way to assess the question of reduced reliability of an individual in driving a car. It is quite clearly outside the scope of the Garda and the doctors to decide the incapable-of-driving class. Any fool, I believe, can do that across the room. It is the in-between case which is difficult, the person who is just as dangerous and in some cases probably more dangerous than the person who is incapable, because there is a likelihood that the person who is incapable will not attempt to drive but it is a person whose reactions are merely diminished and who continues to drive, who causes most of the accidents.
We would also find we would be in a better position to assess the real truth as to the influence alcohol has in motor accidents than at present, in view of the present position of uncertainty, the humanity of the judge or justice who decides to give the benefit of the doubt to the person because of conflicting evidence—which must be conflicting because of the fallacious nature of the clinical tests. We have figures relating to the causation of accidents through drink which I imagine have very little validity. There are figures available from other countries which show that after 10 p.m., say, they are in the region of 60 per cent. due to drink and in the overall 24 hour period from 10 per cent. and 20 per cent. I do not know whether these figures are reliable. I am certain our figures are not reliable. I am inclined to think that drink is a cause of more accidents than our statistics show and that these tests would be a help and leave us without any doubt in regard to the numbers of accidents caused by alcohol, particularly fatal accidents.
Major de Valera
Chemical tests in the case of drunkenness have now reached the stage where after a great deal of experimental effort, they can enable us to decide the question on a factual basis. When the matter was first broached it was largely a matter of opinion. I think we have to admit now in the light of experience, that there is a very strong case to be made for chemical tests. There is also a very considerable degree of certainty based on the facts as to what these tests mean. The difficulty I see in these tests is not that they are not desirable or practicable in the present procedure, but whether, with the density of population in this country, it is feasible to organise such tests on an effectual and realistic basis. That is the question which I, if I had to decide the matter, would put the proposers of tests.
Having said that, I should like to expand a little further on my own reaction to the question of chemical tests. I have had a little experience of the matter in the courts and have seen a picture which would largely tie-in with what Deputy Dr. Browne has said. We have a picture in many cases, and I have here before me documents concerning a case which I would consider to be fairly typical, which is generally something like this: when a person is charged with a charge, the essentials of which are being drunk in charge of a vehicle, the charge frequently arises, in the first instance, by reason of an accident, a complaint or the accidental fact that a Guard has observed and apprehended the delinquent.
When the case comes to court, we first have the immediate evidence for the prosecution to show the condition of the man as it appeared to the nontechnical witnesses, amongst whom I include the Guards. There will be evidence that his breath smelled of drink, that he staggered or may have been a little unsteady. He will have been brought to the Garda station and the Guards there will supplement the evidence of first apprehension and in many cases some of them will be for and some of them against the accused.
In the case I have before me, I have brought in the documents because in it the Guards differed. The man was convicted but the Guards differed. They gave extremely fair evidence. I do not want to give particulars or names, for obvious reasons, but the conduct of the Guards was such as to give great confidence in the police and in the honesty of the sergeant and the Guards concerned. Two of them doubted that the man was incapable. Inevitably, at some stage of the case, a doctor was called in. Usually, a doctor is called in at an early stage by the police and the man himself is always asked by the Garda if he wants a doctor of his own.
The drawback in the medical evidence is the intrinsic weakness in the clinical tests themselves. The doctor is at a disadvantage because he does not see the man until a significant time has elapsed and it usually results in a doubt in the minds of both doctors. They start at a disadvantage and they start with a doubt. That doubt usually results in the doctor called by the police saying that the man is incapable of driving and the doctor called by the accused saying that, in his opinion, he is fit to drive. The end of the whole thing is that the court is thrown back on the general evidence.
I have often asked myself whether, in these circumstances, the calling in of medical evidence is a help at all. I have always felt that it is not fair to the doctors concerned and I have always doubted whether the medical evidence is nothing more than an excuse for the decision and whether the real case is not tried on the early evidence. A judge will always direct a jury that it is on the general impression their common sense gives them that they are to decide the case and that they are not to give undue importance to any particular bit of evidence. I have asked myself whether the bringing in of the doctors for these clinical tests is really a help at all.
On the other hand, there are two further considerations. The public want a feeling of assurance that there is some uniform standard of judgment in such cases. They feel that if a man is charged with being drunk, there should be some kind of test of universal application. There is always the feeling that the accused should have the benefit of the maximum amount of certainty. If the clinical test is as doubtful as Deputy Dr. Browne says, there is a strong case for a chemical test. I think we can go as far as saying in regard to the chemical tests that there is a degree of certainty about what they mean which is not only borne out by laboratory experiments and tests but also by a considerable amount of experience.
There should be no doubt now that, whether it is a breath test or a blood test, it can be told with certainty that a person has consumed a certain amount of alcohol and has that percentage of alcohol in the blood which it liable to impair the ordinary man to a certain extent. I think I could go modestly thus far in saying what the test means. Everybody will admit that there would be individual variations. In other words, you could have a blood level of alcohol which in the case of one man might make him very definitely incapable of driving, while another man might get by with it. I speak subject to correction. I do not think that matters. We have to approach it on the average level and the average level now is a determined, objective thing.
I am not so much concerned, in the interests of public safety, as to whether the individual man was at the moment of driving in the particular case incapable to a degree of driving that car. I am not concerned with the fact that this man could drive, notwithstanding that he has consumed as much alcohol as averagely would make him incapable of driving. I do not think that is the point in issue. I do not think that man should get the benefit in this case because of his exceptional constitution.
The essence of the whole thing is that we know now that a motor car is a dangerous weapon in the hands of a person who is not capable of driving. It is dangerous, anyway, in the hands of the best of us. Anyone who takes the risk of driving that motor car in circumstances we know now are dangerous to the public should take the consequences and I am prepared as a legislator here to take that view now, with the facts as we know them, with the statistical and laboratory information that we have. For the average person, it has been statistically proved that the levels which have been mentioned by Deputy Dr. Browne are dangerous. If we take these levels, arbitrary though they may be to some extent when applied to the individual case, these are the levels which will determine culpability or not. In all crimes, there is an arbitrary element. We are not departing very far in this if we go so far as to say that if the test proves that the person is above the limits, he takes the consequences. If I am driving a car, I do not need to drink and, if I drink, let me take the risk. From the point of view of the community, it is better that the risk imposed on me should be an individual risk as to whether I have exceeded the level or am risking killing persons.
The only difficulty I see in this approach is that some exceptional person who is in fact drunk will get away with it on such a test. I know that people who would argue against the test would be thinking in terms of the unfortunate man who might just be caught because the test would work one way. The test might work the other way. One of the objections I would see to the test is that you might have a case that would get away merely on the test.
There is a strong case to be made for these tests, but, from the practical point of view, I must ask the proposers of the amendment some questions which should be answered. I am not able to give the answers to these questions. The first is: can we, in practice, provide for the tests sufficiently quickly to make the procedure effective? The next point we must face is that once you lay down tests—and this is where I think the lawyers will perhaps lean to the old procedures—it will tend to be and, in fact, must inevitably become, the sole arbiter of the question. In other words, if you determine to have a chemical test and there is an arithmetical answer to the question as to whether the man is drunk or not, it is almost inevitable that that will be the sole arbiter and all other evidence will become almost superfluous, so far as that charge is concerned.
Lawyers also know the difficulty when there are concomitant charges. It might be easy enough to answer if a man has driven dangerously. The drink test will dispose only of the drunkenness. The dangerous element can be dealt with by witnesses on another charge. Unfortunately, it is not so easy, in practice, to separate charges in that way and the general principle is to try to be specific for the benefit of the accused in these matters. That is an objection. I have already asked the question about the density of population, and so forth.
Altogether, the attitude I should like to advocate is that, in regard to a specific drunkenness charge, where it comes to clinical evidence, the chemical test appears to be very much superior to any other, but there are broader issues and these are the questions which have to be answered before we could commit ourselves completely to that line.
I want very briefly to support the principle that we should endeavour to adopt some scientific test in respect of persons who are accused of the crime of driving a car whilst under the influence of intoxicating liquor. I wish very briefly to repeat some of the remarks I had occasion to make yesterday on another section of this Bill concerning the manner in which persons at the present time are liable to be convicted for this offence. At the present time, an accused person is usually met at the hearing of his trial by a number of Garda witnesses who not only give an account of what they have seen but also add what their opinion is of the man's ability to drive a car.
The accused will also, but not invariably, be met with a witness from the Guards, a doctor, who has examined him. It has happened in my experience that the Garda witnesses have stated that, in their opinion, the man was incapable of driving a car by reason of the influence of intoxicating liquor and the police doctor who has examined him immediately afterwards has stated that the man was sober— not sober, that is too strong a word —was fit to drive a car. That discrepancy arises in cases.
In my opinion—I have said this before—it is wrong that ordinary members of the Garda should be allowed to give their opinion as to the capability of a man to drive a car. It is the ordinary rule of evidence that the opinion of a witness, unless he is an expert, cannot be given. That rule is made for a very good reason. It is a matter for the justice, the judge, or the jury as the case may be, to make up their own minds as to the circumstances. In the case of experts, the opinion of experts can be given. It is for that reason that the opinion of doctors—doctors are experts—is allowed as evidence in the courts.
Recently it has been decided that the Garda may give their opinion. I should like to see that changed by legislation. There is a particular reason; the Garda very frequently, perfectly bona fide and acting quite honestly and fairly, as they think, are inclined to have a bias no matter how objective and unprejudiced they may try to be. I have had experience of Garda witnesses who have seen an accused person for less than three minutes giving an opinion that the accused was literally incapable of driving a car. It is absolutely necessary that Garda witnesses should give evidence as to what they saw—the accused person stumbling, not walking properly, thick as to speech. In those circumstances, they should quite properly say what they saw. If they smell alcohol off his breath, then they should say so. If the accused speaks in a blurred or slurred fashion, that evidence is perfectly admissible. But we should not permit a situation in which such witnesses can go to the length of saying that, judging by what they saw, they came to certain conclusions, conclusions which are purely and simply matters of opinion and are really matters for the court to decide.
This argument is strengthened by what is now being done in this Bill because, under this Bill, we are making it practically mandatory on a justice to send a person who is found guilty to jail. There are of course, the exceptions to which I have referred on the previous section. But, in the circumstances outlined, we shall deprive a man of his liberty on evidence which, in the majority of cases, may not be entirely satisfactory. If it is the intention to retain this almost mandatory sentence of imprisonment we should also ensure that the evidence which will send the offender to prison is as foolproof as possible. I think we should introduce these scientific tests in order to ensure that.
There are arguments against these scientific tests but I am quite satisfied that the balance lies in favour of their introduction. There may be practical difficulties. If there are, let us hear them. If there is a reason, let it be discussed. I cannot see any insuperable practical difficulties against carrying out these tests. But, if there is a reason, then the Minister should say so, and he should discuss it.
There is another argument to the effect that these tests are not always absolutely accurate. The other evidence on which a person accused of this crime may be convicted is certainly not always absolutely accurate. If an accused person is placed in this position he should at any rate have the right to submit to a test and facilities for the carrying out of such a test should be available. I think there is a great deal to be said for either making this voluntary or not making it compulsory. There is a lot to be said for writing into our legislation a provision which will mean that an accused person can submit, if he so wishes, to a blood test, or any other type of scientific test available. The results of such tests can subsequently be used in evidence against him, if he submits to them.
There is another factor to be taken into account. Deputy de Valera referred to the fact that courts will pay a great deal of regard to the conclusions arrived at on an analysis of this sort. It must be provided, of course, that an analysis of this sort is not conclusive evidence against an accused person, and it will be open to adduce other evidence. It may be possible to rebut what will be a very strong presumption if, in fact, a fairly high degree of alcohol is found in an accused person's bloodstream. The matter has now become so serious and so grave we should take every step to see that injustice is not done.
I am as keen as any man to get rid of the drunken driver from our roads. In Sweden they have introduced a mandatory sentence, coupled with these scientific tests, and they have had a dramatic success in reducing the incidence of accidents in which alcohol is a factor. The experience in Sweden and elsewhere has been dramatic. I think we could achieve the same dramatic results here, too, but we must ensure, when we are dealing with the liberty of the subject, that the system we devise will not lead to the conviction of an innocent person. That is why I strongly urge we should bring in some scientific measurement into these matters.
Deputy Dr. Browne referred to the desirability of much more publicity in relation to offences. I suggest that the House should consider the desirability of having notices placed prominently in licensed premises, setting out the offences and the consequences attaching to any who offend. Under the Innkeepers Liability Act, every innkeeper and hotel proprietor is obliged, if he wishes to rid himself of certain responsibilities, to put a notice in a prominent place in his hotel. One sees that notice prominently displayed. I cannot see any reason why proprietors of licensed premises should not be legally obliged to display notices, warning those who patronise their premises of the consequences of going too far. I believe that would have a desirable effect. It could also be made clear by means of advertisements what the consequences of consuming a certain quantity of alcohol are. That, I believe, would be a powerful deterrent.
In view of the manner in which it is proposed to deal with this matter in this draft legislation, the matter has now become of such serious import that the House would be wrong if it did not seriously consider taking every step now available to us by reason of scientific development to ensure that injustice is not done.
It seems a peculiar thing that we are here discussing in relation to road accidents one of our biggest and most remunerative industries. It seems peculiar to me that we are faced with a situation in this countries try where we can allow any person to drink as much as he likes. There is no stay on that. A man goes into a public house, bar or lounge bar and there is no objection to his drinking as much as he likes. After consuming what liquor he wants to consume, he is then expected to use his judgment as to whether or not he should drive a car.
This amendment is designed to try to deal with a situation where a man, incapable of thinking, is to be put to what is described as a blood test. All of us appreciate the difficulties. We talk about the importance of drink and the tourist trade in the general economy of the country and the benefits derived from the trade by farmers and all and sundry. It is a peculiar position where we find that one of the biggest industries and businesses in the State is also a source of a great many of our accidents.
It is a correct assumption that drink is responsible for many of the fatal and other accidents on the roads, but it is amusing that we expect the drunken man to use his judgement as to whether or not he should drive a car. That sort of situation can be prevented only by the type of deterrent suggested in this amendment. It is very difficult to argue with a man when one believes he is drunk. Everybody in this House has had the experience of trying to induce a drunken man to part with the car keys so that one can drive for him. He immediately bristles and insists he is able to drive the car. Therefore, I think that the last suggestion made by Deputy Costello is one that might prevent those who have too much drink taken from driving motor cars, that is, notices or signs in a publichouse or public drinking places showing the penalties to be inflicted on one who drives while drunk and especially on one who drives and has an acccident.
It seems to me also—I know this is not possible—that in the public drinking places, we might have the test made. I do not know whether that is possible or whether it will be possible in years to come. It would be a very handy thing if every drinking place had a testing machine to tell a man or woman whether or not he or she was capable of driving a car. On this section, we have emphasised the matter of driving while drunk but there are other reasons for accidents, as the House is well aware. One is just as incapable of driving properly when one is very annoyed or worrying or suffering under great stress or strain as when one is suffering from an overdose of drink.
One commonly sees, as the last three Deputies said, the farcical exhibition in the courts at times of reputable doctors giving conflicting evidence. There is no difficulty in this country at the present time in getting a doctor to say a man is capable of driving when by an ordinary layman, such a man would be described as being blind drunk. Has anybody ever known a case in which a person accused of drunken driving could not get a doctor—and usually his own doctor—who will be prepared to go to the police station and certify the man capable of driving and not being drunk?
I would not go that far.
Major de Valera
I think the Deputy is not being fair to the doctors.
I have yet to find a person who cannot get hold of a doctor who will go into a police station and say the man——
Say "whether the man".
Major de Valera
It is a long time afterwards and the alcohol has been burned up in the blood.
If he says he is drunk, he is never called as a witness.
That is part of it. The doctor does not turn up for a few hours.
Major de Valera
I do not think that is fair, that if he says the person is drunk, he is not called as a witness.
The defending solicitor will not call him as a witness.
It is not a very difficult thing in this country to get a doctor to say that one is capable of driving.
Major de Valera
The difficulty arises from what Deputy Dr. Browne says—from the uncertainty of the clinical tests and the time factor.
I listened to Deputy Dr. Browne on this amendment and some things are not quite clear to me. I should like to know if Deputy Dr. Browne could give the House an indication of what amount of drink would be represented by .5 per cent. of alcohol in a person's blood—that is, a person of average health. I should also like somebody to tell me whether two large whiskeys or two small whiskeys would represent .5 per cent. of alcohol in a person's blood and whether in another person eight whiskeys would represent .5 per cent. I am not a medical man and I do not know whether the tests Deputy Dr. Browne speaks of could give an answer to these questions.
I think it would be a very good thing if every driver who drinks had an idea of his capacity. Personally, if I drank, I would go, therefore, through an experiment to find out what amount of liquor I could consume. Then I would have a certificate to drink a certain amount. If I consumed that certain amount, I would be, according to the particular test——
The particular pub in which you bought it.
It could be. I wonder how accurate these tests can be because it is a well-known fact that some people can get drunk on one or two whiskeys, while other people can consume ten half whiskeys or two dozen bottles of stout and still be quite capable. I do not know how the test stands in relation to such circumstances.
However, I would support the idea in principle in view of what happens in our courts when conflicting evidence is given by people who are regarded as eminent doctors.
I was impressed by what Deputy Dr. Browne said. These tests have been used with great effect in Norway, Denmark and Canada and in parts of the United States of America. It was said that they were used with great success in Denmark or Norway. That is encouraging. Therefore, if it is possible to have this test introduced into this country, I certainly would give it my support.
The question of how much drink one took is not the question at all. The question is: does it make you incapable or were you incapable? That defeats Deputy Dr. Browne's clinical proposition, because the clinical test may show a person had only so much alcohol in his blood. Some people can be drunk and incapable on a couple of beers and other people are like Margaret Barry, the tinker, who says she can drink rings round Brendan Behan and it has no effect on her. Where is the margin then? It is not so much a question of how much drink is in the blood but whether the person is incapable, and nothing else.
I remember when I used to drink first, I could get drunk on two glasses of wine. Had I been charged in the courts, I would have claimed this test, because one or two glasses of wine would not have made me drunk in a clinical sense, although I would have been drunk. If I were Margaret Barry, I would appear quite capable, but suppose some Garda insisted on a test, I would not take the test because I would be proved to be dead drunk. That is the point with regard to clinical tests.
Remember doctors' evidence is of no consequence on this issue at all. The simple question is: were you found incapable? It does not matter whether you had drunk a thimbleful or a gallon. That is not what you are being charged with. The Germans in Nuremberg were charged not because of what they had done but because they had lost the war. In this case you lose if you are incapable. Otherwise, you can drink barrels.
Science and clinical tests cannot be the deciding issue in matters affecting human nature. Human beings differ and it is ridiculous to say they do not. I was told that the man with the big head is the man with brains, but I have inspected mental institutions and I did not find that to be the case. You cannot decide these matters by tests. It is a question of whether the person is incapable and nothing else.
I can see what Deputy Sherwin is driving at, but I cannot agree with him because surely the basis of the whole difficulty is that we cannot assess the degree of incapability? The present position of what Deputy Dr. Browne calls the clinical tests has manifestly failed to do that. I agree absolutely with what Deputy Dr. Browne has said, but I am not absolutely satisfied that the precise wording of the amendment is the best. I hope that he will get some assurance from the Minister that the matter will be reconsidered, so that the amendment can be withdrawn at this Stage and reconsidered on Report Stage.
We must all agree that the setting up of a standard of .5 per cent alcohol content is to a certain extent arbitrary. At the same time, I think it is inevitable. The worst that can happen is that someone with .5 per cent of alcohol in his blood, who has not suffered any impairment of capacity, will, in fact, be convicted of being so impaired. The figures are clearly stated, and as Deputy Dr. Browne said, one glass of stout or one pint of stout or beer, will probably keep you inside the limit. Possibly two pints of stout or beer will keep you within the limit, but one small whiskey will bring you very near the limit, and two whiskeys will definitely put you over the limit. We can hardly get some rule of thumb method which would be a sufficient guide to everyone.
Deputy Dr. Browne has suggested certain difficulties which may arise in a technical sense. Very properly, he did not pay any undue attention to those difficulties. I cannot agree with Deputy de Valera on this point. I believe that if we get tangled up to much in figures, we will never get anywhere. As I have said before, I heard a very prominent European statesman give very good advice. He said: "Never ask an expert whether a certain course can be followed; tell him to do it."
That is a course which should be followed in this case. We know that scientific experts are sufficiently well qualified to devise suitable and reasonable safety tests. I do not think we in this House should start worrying about whether the cleaning of the skin with alcohol before a blood test is taken will upset the test. We must tell the experts to find some way of carrying out tests which will be reasonably accurate. Supposing we still have some doubts about them, surely we can raise the percentage of alcohol permitted from .5 to .6 or .8 or whatever we may decide, if we feel that is a reasonable safety precaution. We must take a definite decision in the House while the Bill is before us on whether we shall have scientific tests of how much alcohol may be in a driver's blood stream without danger to the community.
This is not unlike the situation arising with regard to speed limits. There are a number of very skilled drivers who could take reasonable risks by driving at fast speeds in comparatively congested areas, but we do not say to them: "Your skill is sufficient and you need not comply with the speed limit." We say: "Whether or not your skill is sufficient, you shall comply with whatever speed limit the Minister may lay down", thereby restricting the liberty of certain people unnecessarily. We must take the jump here of restricting the liberty of people who drink, and even restricting the liberty of people who drink a considerable amount, without apparently showing any sign of impairment of their capability. That is not unfair in the interests of the community.
I hope that either the Minister will accept this amendment, if he is perfectly satisfied with it, or that he will be prepared to give an undertaking that he will seriously consider either this or some other scientific test, and introduce an amendment of his own on Report Stage, or else inform Deputy Dr. Browne and the House that he does not feel able to do it himself and give someone else an opportunity of putting down a further amendment on that Stage.
One would infer from the statements made in this House that drunken driving is a permanent crime in this country. We are all very pleased that that is not the case, and that it is only rarely these cases crop up. They seem to be national news and whether a person is charged with being drunk in charge in Cork or Donegal, the case is reported in the Press. That, I believe, is as it should be, because everyone is anxious that drunken driving should cease.
In this amendment, Deputy Dr. Browne seems to have given an impartial way of dealing with offenders who are brought before the courts. We are all aware of the conflicting nature of the cases which go before the courts under this heading from time to time and of the conflicting nature of the judgments given. Listening to Deputy Booth who has given us an idea of what Deputy Dr. Browne's amendment actually means, I do not believe in it at all. I think it is ridiculous. If I were to accept Deputy Booth's interpretation of what Deputy Dr. Browne said, if a person is brought to a Garda station charged with the offence of drunken driving he would only have had to consume two halves of whiskey. I was not here when Deputy Dr. Browne spoke but, from what Deputy Booth said, I gather that one half would be very near the mark and two halves would leave him well above it.
The Minister knows very well that the vast majority of publicans and bar assistants, if they find a person inclined to take too much drink, will refuse to supply any more drink to him. I am a publican myself and if anyone entered my premises who was liable to require more drink than he was capable of consuming, particularly if he were driving a car, he would not get it. I am sure the same applies in almost every town and village. Imagine putting an obligation on a publican to put a notice in his premises that if a person is found guilty of taking two half-ones he is liable to six months' imprisonment. That is ridiculous especially in the light of Deputy Costello's interpretation of this section that it is mandatory on the justice to impose a term of imprisonment when a person is convicted.
As Deputy Booth has said very few of us are conversant with what Deputy Dr. Browne's amendment means. Being a doctor he understands the terms he uses. However it is ridiculous to impose an obligation on a publican to refuse service to a person who has only had two half-ones or two pints of stout as the case may be. Furthermore it imposes a restriction on the freedom of our people. We must also bear in mind the punishments already meted out to people convicted of drunken driving. First of all, there is a disqualification, secondly, a fine and, thirdly, in a number of cases, imprisonment. Everyone driving a car, whether he likes to drink intoxicating liquor or not, is very watchful of keeping within the law. It is mandatory in his own personal interest to do so. We all agree that severe punishment should be inflicted for such drinking offences but to impose the drastic punishment of a jail sentence on persons who, when they are tested, are found to have more drink than that mentioned in the amendment which Deputy Dr. Browne seeks to insert in the Bill, is fantastic. It could happen that a person who would be well known to be able to consume four half-ones without its interfering in any way with his capacity to drive, could be brought along to the station, having consumed only that amount and, on being tested, becoming liable to imprisonment. For these reasons I oppose the amendment.
I have a great deal of sympathy with Deputy Dr. Browne's amendment but I should like him to have limited the amendment to the first sentence which reads:
In any proceedings for an offence under Section 49 of this Act the court shall have regard to any evidence which may be given of the proportion or quantity of alcohol which was contained in the blood of the accused...
I know Deputy Dr. Browne has produced a good deal of evidence to show the efficacy of clinical tests, or blood tests as they are more commonly called, but it is also possible to produce a good deal of evidence to show that these blood tests are not reliable in all cases even though they are in a good many cases. They have gone to the stage when they can be admitted as supporting evidence in favour of the State's case or in favour of the defence.
There is also the possibility that as time goes on other types of tests will be invented and brought in which will be of greater assistance in deciding whether a person is capable or incapable of driving a vehicle. Therefore I should like to see some provision made in the Act to enable blood tests or clincal tests to be produced as evidence of a man's capability or otherwise to drive a vehicle. It is particularly important that we should give the man who is accused of being incapable of driving a car every opportunity of demonstrating that the charge is false particularly since, as pointed out by Deputy Costello, Section 49 makes it mandatory on the court to impose a sentence.
I am not a lawyer but I think that sentence could be circumvented if a sentence of imprisonment to the rising of the court were imposed. That is another reason why we should be completely satisfied in our minds that the driver has had a fair chance of proving his innocence. If we make the Act so rigid that the court must impose a sentence and if justices get the idea that the weight of sympathy is against the driver, they may simply circumvent that provision by imposing a nominal sentence to the rising of the court. That would defeat the intention of this section.
I share the wish of other Deputies that a man who is genuinely incapable of driving a vehicle should receive the very severest punishment. I think I am right in saying, however, that statistics do show that the percentage of accidents that arise from drunken driving is comparatively small. There are many other contributory factors which are dealt with in other sections of this Bill. I give limited support to Deputy Dr. Browne's amendment and suggest it should stop after the first sentence. There are very many other factors which have to be taken into consideration besides clinical tests, although great progress has been made in this respect. Account must be taken of the capacity of one driver as against another to consume alcohol, the age of a driver, even the sex of a driver. All these things enter into it and I do not see how one can lay down a rigid alcoholic blood content for all drivers. Sufficient margin must be allowed to enable the court to judge the case on the merits of the evidence before them.
We must agree that doctors do disagree in these cases, but at least they do produce the evidence to the judge and the jury. If the judge or jury are not satisfied with that evidence or if it is too complicated to give a clear decision on it, there should be an opportunity of producing any other evidence that may exist. I would not exclude from that evidence the question of blood and clinical tests. I hope the Minister, if he does not accept the amendment in its present form, will find some way of revising it to suit the purpose intended by Deputy Dr. Browne.
We have had a very interesting academic discussion on this amendment. Very few of us appear to agree on it. First, very few of us appear to agree as to when a man is incapable of driving a motor car. If we disagree as to when he is incapable of driving and doctors disagree, how can we ask a district justice to decide on the opinion of a layman, possibly a Garda recruit, on the capabilities of a driver or otherwise?
I am in agreement with this amendment. There is just one thing which worries me. It is what Deputy M.P. Murphy said. What is the quantity of intoxicating liquor which would produce .5 per cent alcohol content in the blood? It is something Deputy Dr. Browne may have explained.
Two half ones.
He possibly explained it when moving the amendment.
It is bad news, I am afraid.
If it is, I am afraid I shall have to support Deputy Russell and suggest we should confine it to the first sentence of the amendment. Deputy de Valera explained in detail the pattern of prosecutions in the district court at the moment. A man is accosted by a Garda, possibly a recruit, who comes to the conclusion, as a result of his observations and as a result of his sense of smell, that the man is incapable of driving and he is taken to the barracks. He is then asked if he would like to call in a doctor and is told he may have a doctor of his own choice. I do not care where it is in rural Ireland—it will be half an hour before a doctor is procured. Another doctor is procured by the Garda. There may be a difference of view between the two doctors as to whether the man is capable or otherwise. Then we are thrown back, as Deputy de Valera pointed out, on the general evidence tendered by the Garda.
I should like to give the facts of a case which occurred in my county recently, although I do not like quoting cases. A man was accosted by a Garda at 7 o'clock in the evening and told he should not drive his car. He thanked the Garda and said he would not. He went back to his hotel, had soup and a meal and remained there until 9 o'clock. The Garda was evidently afraid the man might drive the car later and he put another Garda to watch the car. When this man came out at 9 o'clock, the other Garda observed him staggering and stumbling. He observed his face flushed. He got the smell of drink—admittedly, stale drink—from him and arrested him. Within 20 minutes, the man had his own doctor examine him and within three-quarters of an hour the Garda doctor examined him. Both doctors agreed that the man was then sober, but on the evidence of the Garda he was fined £15 and his licence was suspended for 12 months.
The snag is this. I could lay 100 to 1 that man will succeed in his appeal, but that appeal will not be heard for about four months. In the meantime, he is debarred from driving a car, because our justices refuse to remove the endorsement pending the hearing of an appeal. No matter what happens, he is going to suffer. He is a man who can ill afford to suffer because driving a car is part of his means of livelihood. If we had a test such as Deputy Dr. Browne suggests, the evidence of those two doctors would be corroborated by the certificate of an analyst. The justice would have no option whatever but——
Major de Valera
The time factor is the snag there again.
I do not think so. I was worried about what Deputy de Valera has mentioned, particularly in rural Ireland. But I understand once the sample of the blood is taken, it is immaterial when it is analysed.
Major de Valera
That is right, but in the taking of the sample, a delay of half an hour may be critical.
I am not in a position to discuss that. It might be possible with very elementary training for a Garda to take a sample of the blood of the accused at his request.
Major de Valera
I should not like to subscribe to that principle.
Most Gardaí now have first aid certificates. I am not certain whether what I suggest is possible.
I doubt if it would be wise.
I am completely ignorant of this—I only want to know.
The Deputy is doing the doctors out of a job.
I am referring to taking a sample of blood. I know a nurse can do it. Surely it might be possible to procure the services of a nurse for the purpose of taking a sample?
Major de Valera
If we give them hypodermics in addition to the white batons, they will be well equipped.
The white batons are very useful, if we would teach them the drill of using them. It might be possible also to teach them the drill of using a hypodermic syringe. I see the point Deputy de Valera has raised. I am only trying to throw out a suggestion which might get over it. Possibly Deputy Dr. Browne might be able to tell us how it would be possible to procure a sample within a reasonable time before the alcohol content has disappeared. It would be a good thing if we had a test of some description. The only one suggested is Deputy Dr. Browne's test. Doubt has been cast by many Deputies on whether it is practicable but we should not dismiss it lightly.
It is all very fine for us to have an academic discussion and disagree, but the poor unfortunate in the dock in the district court, who stands to lose his employment or means of livelihood, would be very glad to avail of any straw at which he might clutch for the purpose of proving his innocence, be it by way of test or otherwise. As Deputy Declan Costello pointed out, supposing we have not got a test or a doctor, what have we got? In the opinion of the Garda, he is incapable of driving as a result of the consumption of intoxicating liquor. Is it fair to ask a district justice, who has before him no other evidence than the evidence of the Garda and the evidence of the defendant himself, who generally will be regarded as being biased, to come to a decision? That being so, until something more advantageous is advanced, I support Deputy Dr. Browne's amendment.
Progress reported; Committee to sit again.