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Dáil Éireann debate -
Thursday, 25 May 1961

Vol. 189 No. 7

Committee On Finance. - Road Traffic Bill, 1960—Committee Stage (Resumed).

Debate resumed on the following amendment:
NEW SECTION.
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"—(Deputy Dr. Browne).

When the debate was adjourned, we were dealing with the amendment in the name of Deputy Dr. Browne and I was putting to the House the view that this matter, like many other matters involved in this measure, is one on which, if possible, I think we should avoid a division by way of a vote in any way we can, in order that there should be no divided opinion either inside or outside the House on the entire measure. We are dealing with the matter of blood tests and also, as suggested in the amendment, with the setting of an arbitrary figure for the percentage of alcohol in the blood, a figure beyond which would imply incapability due to taking intoxicating liquor.

As I said earlier, my view is that the reliability of tests as carried out in other countries at present is not as complete or absolute as one would like it to be if these tests were to be introduced here. Further, the setting of an arbitrary figure for the allowable alcoholic content of the blood is something which I think would give rise to discussion, division of opinion and controversy, no matter what figure might be decided on. In view of that and because of consideration given to the Bill before it came to the House and before this amendment was tabled and from the information available to me and to the Government, it is our belief that blood tests and the setting of an arbitrary figure are matters which we would not be wise to include in the Bill at this juncture.

The view expressed, particularly by Deputy Dr. Browne and supported by many others, is that this amendment should in fact be carried and that the tests and the arbitrary figure should be named in the Bill. Not wishing to have any division of opinion here, if it is possible, my view and the view of the Government is that this matter can be kept under review and dealt with when we feel that the evidence from the operation of the blood and other tests for alcohol and drunkenness in other countries is sufficiently complete to indicate that these would be useful, conclusive and fair tests. We would then intend to bring some amendment to the House.

It is also my opinion that because of the difficulty of arriving at conclusions in regard to this rather highly technical matter of the formula or calculation arising from the blood test or breathaliser or anything of that kind, the matter could possibly be better dealt with by a committee or commission which would go fully into all aspects of the matter and consider all relevant evidence ascertained or ascertainable. Such evidence will be ascertainable to a greater degree in the future as a result of experience elsewhere. That method of arriving at a solution to the problem raised in this amendment would be far better. Such a committee or commission, I consider, should represent the technical and medical people and the Garda Síochána and should take evidence from the public or anybody interested. In regard to hearings, whether by committee or commission, they would give notice to the public of their intention to do something on these lines and thereby give the public an opportunity of indicating what they feel should be done.

As I said before, this matter has not been published in the White Paper circulated with a view to sounding public opinion, and the lack of any publication is one of the reasons—not the only reason—I should be very reluctant to go ahead and accept an amendment in the form now before us. I suggest that the House should go with me in the view that this matter could be better dealt with by a committee or commission. I believe that would be the better and the wiser course. Ultimately, we would have a better all-round Bill than if we were to insert at this Stage this amendment which is very far-reaching in its effects and would be a most controversial insertion in the Bill, particularly as the public have not been given due notice of it as they were given of the other intended proposals in this measure as appeared in the White Paper.

I do not want to prolong the discussion on this very long Bill. I agree with the Minister it would be very much more desirable if we had a public debate or consideration of this whole question arising out of the circulation of the White Paper. I am very much surprised it was not included at that time because it would be a great help to all of us and would be very much more likely to be satisfactory if we had the views of the various voluntary bodies and other interested parties. All I can and must do, in this very limited way, is go on the experience of other countries who have had the test for varying periods of up to between 30 and 40 years, Norway, I suppose, being one of the earliest. I am naturally surprised that the Minister and his advisers have not gone on the experience of various other countries such as Norway, Denmark, the United States, Canada, England now, and to a limited extent, Scotland, because a case would appear to have been made by the fact that these tests have been retained so long in these countries.

As to the precise wording of the amendment or the percentage of alcohol mentioned, I am not at all committed in any way. What I was really concerned with in putting down this amendment was primarily to get a debate on the matter and to try to have the general principle of tests inserted in the Bill in whatever manner the Minister felt was best. Like the Minister, I would prefer a step by step approach to this question because it is a very serious one in many ways. The problem we are dealing with is a very serious one, however, the question of drink, its influence on driving and death on the roads. Therefore, a positive step should be taken at this stage. The Minister knows as well as I do that one of the oldest devices in the whole history of parliamentary democracy for long-fingering any proposal is the commission. Therefore, it does not seem to be a very satisfactory solution of the present problem.

The Minister mentioned the constitutionality of taking blood tests. I do not think there is very much validity in that point because we have the precedent of other countries that have the same attitude to the constitutional rights of the individual as we have, and I am sure they considered the rights of the community as a whole against the rights of the individual and are no less conscious of them than we are. Also I think there is a right under law—I am not sure about this—of taking blood tests in maternity cases and if it is accepted for that, I am sure it can be accepted for this.

There is no such right. It is often done.

In our health legislation, we have what I would consider a very serious infringement of individual rights, incarceration in hospital, and so on. I do not think there is very much validity in the Minister's point. It may be a help to the Minister to find out the strength of public opinion. There may be very limited public opinion in favour of blood tests, as he suggested, and in that case his very cautious and careful approach to the matter may be justified in the event. On the other hand, I should like to know what is the opinion of the House on this very important subject and in the circumstances I think it worth pressing to a division.

Amendment put.
The Committee divided: Tá, 4; Níl, 80.

  • Browne, Noel C.
  • Corish, Brendan.
  • Desmond, Daniel.
  • McQuillan, John.

Níl

  • Bartley, Gerald.
  • Blaney, Neil T.
  • Boland, Gerald.
  • Boland, Kevin.
  • Booth, Lionel.
  • Brady, Philip A.
  • Brady, Seán.
  • Brennan, Paudge.
  • Breslin, Cormac.
  • Briscoe, Robert.
  • Browne, Seán.
  • Burke, Patrick.
  • Calleary, Phelim A.
  • Carty, Michael.
  • Clohessy, Patrick.
  • Collins, James J.
  • Cosgrave, Liam.
  • Cotter, Edward.
  • Crowley, Honor M.
  • Cummins, Patrick J.
  • Cunningham, Liam.
  • Davern, Mick.
  • de Valera, Vivion.
  • Doherty, Seán.
  • Donegan, Batt.
  • Donnellan, Michael.
  • Dooley, Patrick.
  • Egan, Kieran P.
  • Egan, Nicholas.
  • Moloney, Daniel J.
  • Moran, Michael.
  • Mulcahy, Richard.
  • Murphy, Michael P.
  • Norton, William.
  • Ó Briain, Donnchadh.
  • Ó Ceallaigh, Seán.
  • O'Higgins, Thomas F.
  • O'Malley, Donogh.
  • Ormonde, John.
  • O'Sullivan, Denis J.
  • Fanning, John.
  • Faulkner, Padraig.
  • Galvin, John.
  • Geoghegan, John.
  • Gibbons, James.
  • Gilbride, Eugene.
  • Gogan, Richard P.
  • Haughey, Charles.
  • Hillery, Patrick J.
  • Hilliard, Michael.
  • Hogan, Bridget.
  • Johnston, Henry M.
  • Kenneally, William.
  • Kennedy, Michael J.
  • Killilea, Mark.
  • Kitt, Michael F.
  • Kyne, Thomas A.
  • Lemass, Noel T.
  • Lindsay, Patrick.
  • Loughman, Frank.
  • Lynch, Celia.
  • McAuliffe, Patrick.
  • MacCarthy, Seán.
  • McEllistrim, Thomas.
  • MacEntee, Seán.
  • McMenamin, Daniel.
  • Maher, Peadar.
  • Millar, Anthony G.
  • Moher, John W.
  • O'Toole, James.
  • Russell, George E.
  • Ryan, James.
  • Ryan, Mary B.
  • Sheldon, William A.W.
  • Sherwin, Frank.
  • Spring, Dan.
  • Teehan, Patrick.
  • Tierney, Patrick.
  • Traynor, Oscar.
  • Wycherley, Florence.
Tellers: Tá: Deputies Dr. Browne and McQuillan; Níl: Deputies Ó Briain and Loughman.
Amendment declared lost.
SECTION 50.

I move amendment No. 62:

In subsection (1), page 40, line 8, to delete "drink" and substitute "intoxicating liquor".

Amendment agreed to.
Amendment No. 63 not moved.
Question proposed: "That Section 50, as amended, stand part of the Bill."

With reference to subsections (4) (a) and (b), as I read the section, if a driver is prosecuted for an offence under this section:

It shall be a good defence in a prosecution for an offence under this section if the defendant shows—

(a) that at the material time the circumstances were such that there was no likelihood of his driving the mechanically propelled vehicle so long as he remained unfit to drive, and

(b) that between his becoming unfit to drive and the material time he had not driven the mechanically propelled vehicle in a public place.

If a man has taken a considerable amount of either drink or drugs, is it not reasonable to assume that he may not be in a position to swear that he had not driven a vehicle? The onus is on the defendant but, in fact, he may not be in a position so to swear. It strikes me that this provision puts the defendant in a peculiar position and it might be necessary to look at the section again. The onus is on the defendant to prove he is not guilty when, in fact, he may not be in a position, as a result of either drink or drugs, to do that.

I should like to put a hypothetical case to the Minister. Supposing a man has taken some drink and his car is parked in a public place in Dublin. Supposing he decides he is not in a fit condition to drive. He does not want to leave the car on the street. He intends to go home in a taxi. If he calls the police and asks for their assistance, will he be charged with being drunk in charge of a car? Would he have a good defence under subsection (a) in saying that the circumstances were such that there was no likelihood of his driving?

Surely that is the object of the subsection.

I raise the point because the provision is almost identical with Section 6 (2) of the Road Traffic Act in Great Britain.

That would be a defence; at least that is the way we see it. So far as the point raised by Deputy Russell is concerned, this section is similar to a section in operation in Great Britain. No difficulty such as that envisaged by Deputy Russell has arisen there under that section. Apart from that, if a person were under the influence of drink or drugs to the degree that would render it impossible for him to prove that he had not driven at an earlier stage while incapable, it does not follow that he is assumed to be guilty. The question of the good defence would be absolute if he can provide it. If he cannot, he will still have to be proved guilty of the offence so that there is no real weakness in the situation.

Is the onus not on the defendant to show that he could not have driven? Is that not contrary to all legal principle?

No. It would be for the authorities to prove the basic offence under this section.

Perhaps I am wrong —I hope I am—but as I read the section, in conjunction with previous sections, it does seem the defendant is assumed to be guilty, unless he can prove certain things set out in these subsections, and one of them is that he is prepared to swear that he could not have driven a car. I suggest that if he were either drunk or drugged, he might not be in a position to swear either that he could or could not drive.

It is not to be taken that he is presumed to be under the influence in the first instance. Even if he were in the condition that he would be incapable of providing the evidence necessary, he would probably have recourse to other witnesses.

Question put and agreed to.
SECTION 51.

I move amendment No. 64:

In subsection (1). page 40, line 48, to delete "drink" and substitute "intoxicating liquor".

Amendment agreed to.
Section 51, as amended, agreed to.
SECTION 52.

I move amendment No. 65:

In subsection (1) to add the following:—

"and shall not unreasonably fail or neglect to dip or dim headlights after lighting up hours".

This amendment is designed to meet what I think the Minister will agree is a definite need with regard to the dipping and dimming of headlights. The position at present as far as I know—I raised this on Second Reading and I understood the Minister to agree with me—is that cars are required to have a dipping and dimming device fitted which will enable the driver to dim his lights in the face of oncoming traffic. I think I am correct in saying that while there is a legal obligation on a car owner to have such a device, there is no legal obligation on the driver to operate it. Consequently, you have the anomalous position that while the attachment of this device is necessary, it is not obligatory to use it.

All of us will agree that, whether it is a major cause of road accidents or not, it is certainly a very unpleasant experience for people driving at night to encounter the selfish driver who simply will not dim his headlights. My own view—I do not know whether it is borne out by statistics or not—is that this is probably a major cause of road accidents. I am basing that on what I read in the newspapers day after day. When people are charged with driving offences, failure to stop after an accident or hitting someone on the road, we frequently read that the driver puts up in defence the fact he was dazzled by the lights of oncoming traffic which failed to dim. I suggest in this amendment that not only should it be necessary to fit on cars the dimming device, but that the court should be enabled to regard unreasonable failure to dip or dim headlights as dangerous or careless driving within the meaning of Section 52 of the Bill.

Section 52 is the section which deals with careless driving. It sets out in subsection (1):

A person shall not drive a vehicle in a public place without due care and attention, or without reasonable consideration for other persons using the place.

It may be suggested that that section, in itself, is comprehensive enough to enable a court hearing a complaint of dangerous driving to hold that unreasonable failure to dip or dim headlights does constitute careless driving. I do not think it is sufficiently comprehensive. My recollection is that Section 51, I think, of the 1933 Act is worded somewhat similarly to Section 52 of this Bill. I think that has been accepted as not imposing a legal liability on an owner to dip or dim his headlights. My recollection, which is subject to correction, is that the Garda authorities did try to deal with this problem under existing legislation by bringing a prosecution for obstruction against a motorist who failed to dip his headlights, but they did not succeed. Consequently, we are unable to establish a precedent under existing legislation which would enable them to prosecute drivers who offended in this way.

The Minister will note the amendment uses the words "shall not unreasonably fail..." The word "unreasonably" has been deliberately introduced into the amendment. The purpose of that is that everyone will recognise that there are occasions, even in the face of oncoming traffic, when it is neither desirable nor a practical proposition for a driver to dim. We frequently in this country meet long, straight stretches of road with slight hills and inclines on them. It would be unreasonable on such stretches of road to require a driver to dim when he is a very good distance away from the oncoming traffic and not involving the driver of the oncoming vehicle in any particular difficulty or danger. Again, on such a straight stretch of road, if a driver goes down into a dip on the road and is obscured from the view of oncoming traffic, it might even, in such circumstances, be dangerous for him to dim, and he might require the full power of his headlights while going into the dip on the road. We feel it should be taken into account that there are circumstances in which it might be undesirable and might be unreasonable for a driver to dip his headlights. For that reason, the word "unreasonably" is incorporated in the amendment.

The amendment as drafted, as I see it, will enable a court to decide if the circumstances being dealt with in the court were such as to make the driver's failure to dip unreasonable. If the court holds that the failure to dim or dip headlights on the occasion in question was unreasonable, our suggestion is that it should then be open to the court to convict such a driver of dangerous driving. I am aware, and no doubt the Minister will also be aware, that this offence, if the Minister accepts the amendment, might not always be very easy to detect or to prove, but I think the Garda authorities certainly have sufficient resource and ingenuity to overcome that problem. I think all of us will be in a position to suggest a method to them, if they find themselves at a loss.

I would earnestly urge the Minister to accept this amendment. Even if the regulations which the Minister is to be authorised to make under this Act are such as to enable him to make regulations to cover this matter, I would nevertheless urge him to accept the amendment. This offence—because I think it is an offence—should be written into Section 52 of the Bill so that in future drivers who because they have more powerful headlights or are not concerned about oncoming traffic, or untroubled by the lights of oncoming traffic, or who for any selfish reasons fail to dip their headlights, will be made answerable to the courts as people guilty of dangerous driving.

I am sure most deputies have had experience of the unpleasantness of driving against a motorist who simply refuses to dip his headlights. As I said, I regard it as a particularly dangerous type of driving. Allied to it is the case of the driver who while he will dip his headlights will turn them on fully when 20 or 30 yards away from you. I do not know whether that problem could be dealt with if this amendment were accepted, but I think anything the Minister or the Government can do to encourage people to use their dipping devices properly, and to discourage the selfish driver who will not do so, should be done. The Minister would be earning the thanks of motorists, cyclists, and pedestrians generally who use our roads if he does anything in this Bill to put a stop to the driver who will not dip his headlights.

By and large, I feel I can support this amendment but there are one or two catches attached to it. Deputy O'Higgins has referred to one of them—the question of the man who does in fact dip his headlights but "undips" them too soon. It might be necessary to deal with this problem by a slight change of the wording of the amendment, in the same spirit but having something on the lines of a reference to the unreasonable use of headlights, rather than referring to dipping or dimming. I am quite sure that the Minister will say, as Deputy O'Higgins has probably already guessed he will, that Section 52, as in the Bill, is sufficient, but this whole question of the use of headlights is of such importance as to warrant a special mention in the Bill. The fact that it was referred to particularly would, I am sure, strengthen the action both by the Guards and the courts.

I am glad that the word "unreasonably" occurs in the amendment because there are quite a number of cases, as Deputy O'Higgins said, where it would be unreasonable to ask anyone to dip. It could arise, for instance, where a driver is taking a sharp right-hand bend. The driver who is turning right should not dip especially if the road is wet because the effect of dipping his own lights will cause a person coming towards him to be blinded by the reflection of the lights. It would be quite right to have some regulation or rule that the person turning left on a bend should always dip whether he sees an oncoming car or not, because on a left-hand bend, one very often meets a cyclist and it is too late to dip with any effectiveness, whereas if you dip automatically on a left-hand bend, you cannot take a cyclist unawares. One usually sees the lights of an oncoming car approaching the bend.

On the general question, the only difficulty I can see is how are regulations, which I believe are to be brought in, to be drafted to cover all the points as to when to dip and when not to dip. There is also the question of the distance between cars on a straight road. Some people apparently think that even when a car is a mile away, the driver should dip, but if the distance is too great between them a pedestrian or a cyclist in between may not be seen, if they dip. How that can be covered by regulation, I do not presume to know. I can see a great many difficulties cropping up.

The only other point I want to make in support of this amendment is that this whole question of the use of headlights is so important that it should be referred to specifically. The way it will work out would be a matter of experience and regulations can be made and changed as circumstances seem to suggest. This is the type of point which would be met perfectly by the Standing Committee of this House which I suggested on the Second Stage, where Parliament could keep reviewing continually what was happening on the roads and get a layman's view rather than views of a traffic expert. As I say, my only doubt is in regard to the wording of the amendment and the difficulty I can see in relation to how regulations are to be framed to cover all these points. On the general issue of referring specifically to headlights, I have no doubt at all.

I think we are all in agreement with the sentiments behind the amendment. Deputy Sheldon and Deputy O'Higgins have both pointed out a weakness, that is, the question of how regulations are to be framed, in the first place, and, secondly, how to prove that an offence has been committed. I have even seen public service vehicles which, when they dip, are in fact worse as one light goes down and the other goes up. Therefore, they should be prosecuted under Section 54. You come to the stage where a man will go into a garage and say: "My lights are a bit low; focus them high for fast driving." He might then be driving on the dip and an oncoming motorist will not know that he is on the dip and may flash his lights at the driver and then find himself completely blinded because the lights are focussed high. I suppose again that that would be an offence under Section 54.

Section 52 fully covers any offence that might be committed in regard to dipping or not dipping on the road. Section 54 covers any offence with regard to lights not being properly focussed. Surely if a man fails to dip, or puts on his lights too soon, he is then driving in a public place without due care and attention or without reasonable consideration for other persons using the place. To incorporate the subsection proposed in the amendment would, in my opinion, be inserting a subsection for which it would be impossible to make enforceable regulations, in the first place, and, secondly, the section itself would be unenforceable.

The section as it stands is that which was contained in the 1933 Act, with the addition of the words "without due care and attention", which strengthen the terms of the 1933 measure. Under Section 52 as it now stands, if a person fails to dip his headlights he can be prosecuted for acting without reasonable consideration, or where the circumstances are very bad he can be prosecuted for dangerous driving under Section 53.

The addition of the words proposed to be added by the amendment would not in fact add anything to the section, particularly when we realise that under Section 11 the matter of dipping and dimming can be made an offence with a penalty, under the common penalty clause in the Bill. If we were to isolate this matter, which is only one of many other serious matters, such as, for instance, stop signs, and stopping at signs at road junctions, we might, by focussing attention on it, cast doubt on the effectiveness of the section to deal with those other matters which are individually very important and could cause grave danger.

In so far as this section or any amended section is concerned, we shall have to rely on two considerations in regard to dipping and dimming. The first is the consideration, reasonableness and courtesy of our drivers, and the second is the enforcement of the law by the Garda on those who err in this matter and drive in a dangerous manner. I believe the assurances we have been given from the Garda and the Department of Justice that such enforcement will be carried out, will be implemented. If it is carried out, and we get co-operation from and reasonable care exercised by our drivers, driving in a reasonable way with due consideration for other road users, those two things allied together will bring about a very much improved situation in regard to the matter under discussion which is much abused at the moment.

If we are to have proper enforcement I am afraid we must have, and I hope we do have—although this will be a matter for the Garda and the Department of Justice ultimately— much more mobile and active traffic police, "traffic cops" as it were. Apparently we are heading towards that idea at the moment, if we are to judge from the numbers of Garda on motor cycles now on the roads. Something on that line will ultimately prove not only effective in regard to this matter, but also in regard to the many other infringements which, looked at in isolation, seem not to be terribly serious, but an accumulation of them makes the roads a really dangerous place to frequent at the moment.

I feel Deputy O'Higgins amendment does not add to the control which is possible under the measure as it now stands. As I said, it might have the effect, if dealt with in isolation, of focussing attention on it, and casting some doubt on other matters each of which in itself is also very important and on a par with this matter. I say that realising that the question of dimming and dipping, or not dimming and not dipping, is one which very literally strikes one in the eye. Despite that, it is also true that not stopping at stop signs at road junctions is also a very serious matter, and even a more dangerous practice, if anything can be more dangerous, than the violation of the dipping consideration.

For those reasons I am not inclined to think that adding this amendment would be an improvement on the section. We can make the matter a special offence, as I said at the start. We have power under Section 11 to make it a special offence. That, together with other various matters, will be considered with a view to deciding if regulations are to be brought in to make it a special offence.

Various difficulties were envisaged by Deputy Sheldon as to how this, that and the other, may be defined. We cannot attempt to define by actual legislation all the odds and ends which will arise, but we can do it much more readily and effectively by regulation. Also by regulation we can meet changing circumstances which we could not write into legislation. Writing all these changing matters into legislation does not help us to keep our legislation up-to-date, or to make it as effective and as continuously effective as we would all like it to be.

I appreciate the Minister's point that to give emphasis to one particular matter in the section might so to speak, take the emphasis off other offences of an equally grave sort. That point is valid and requires some consideration. I should like to feel happy that the Minister's view is correct when he says that under Section 52 as it is worded at present, a person who unreasonably failed to dim his headlights could be prosecuted either because he had driven without due care and attention, or because he had driven without reasonable consideration for other road users.

I do not claim to be an expert but it seems to me that the Minister is not correct in that view. As I read Section 52, the words "without due care and attention" would relate, and would be regarded by the courts as relating, to the person's care and attention in the handling of the vehicle. The words "without reasonable consideration" also appear in Section 50 of the Road Traffic Act, 1933. So far as I am aware, it has not been found possible under that legislation, or under Section 50 of the 1933 Act, to prosecute a person who has unreasonably failed to dim his headlights. Again, so far as I am aware, the only method which the authorities could find under existing legislation in their endeavour to bring home a prosecution against a person was to charge him with obstruction and they did not suceed in that.

I feel the Minister is not correct when he says Section 52, as worded at the moment, is sufficiently strong to allow prosecutions against a person who does not dim his headlights. The Minister may be correct in saying that Section 11, which is the section dealing generally with regulations and with the Minister's authority to make regulations, is sufficiently wide to enable it to be made a special offence. I do not want it done that way. I think it is undesirable that this whole Bill should be propped up with Ministerial regulations, or with regulations made, or to be made, by the Commissioner of the Garda Síochána.

I think it is much preferable that we should say in the Bill what we mean and what we want done. The Minister would improve the Bill by accepting the amendment. If he feels satisfied that it is not necessary, I am not going to press him unduly but I do not think that the difficulties about defining the particular circumstances in which this would be an offence and the particular circumstances in which it would not be an offence need bother the Minister at all if he accepts the amendment because my suggestion is simply that these are matters which should be left to the court to decide. If the amendment is accepted, it will be open to the court to have regard to all the circumstances in relation to the alleged offence and decide whether or not those circumstances are such that make it unreasonable for the headlights not to have been dimmed and if they hold that they were unreasonable, then to convict for careless driving.

My advice is that prosecutions have been taken and succeeded under the present section in the 1933 Act, Generally, I have been advised that the section, as it is, is sufficiently strong to cover the various aspects outlined by the members of the House in reference to this amendment. I am satisfied, in so far as it is possible to be satisfied, that the section is adequate as it stands and that we have the power in Section 11 to make this a special offence or any other similar matter if it is so regarded as necessary or if it should arise and become necessary in the future.

Amendment, by leave, withdrawn.
Amendment No. 66 not moved.
Section 52 agreed to.
SECTION 53.

I move amendment No. 67:

In subsection (2) (a) page 41, line 30, to delete "both such penal servitude and", and in line 31 before "and" to insert "or to both such penal servitude and fine".

I strongly urge the Minister to accept this amendment which creates but does not define the offence of dangerous driving but it does provide an automatic sentences on conviction of dangerous driving of imprisonment and a fine. In other words, if a person is guilty of dangerous driving and is so found by a july after indictment under this section he must be sent to jail. There is no discretion in the court. I personally have always held the view against these automatic sentences and against sentences automatically imposed of imprisonment without a fine.

I would ask Deputies to consider the effect of this section and what they are doing if they pass it. Dangerous driving has not been defined and it has been judicially stated that it cannot be defined. Dangerous driving is an offence if a judge or a jury in all the circumstances of the case decide that it is dangerous driving. It is left to a judge or jury to determine on the facts whether the facts constitute dangerous driving. It was held in a rather recent case in the Court of Criminal Appeal in England in 1957 that mere momentary negligence, momentary inattention of the driver of a motor car, would justify a jury, if they so found, in finding a verdict of dangerous driving. It was the case of a man who turned his head and there were unfortunate consequences as a result. The jury found he was guilty of dangerous driving. What this section means is that a person may be found guilty of dangerous driving by mere momentary inattention and must be sent to jail. There is no option.

It is true that the Minister has an amendment down to provide that instead of a person being found guilty of dangerous driving he may be found guilty of careless driving. That is not the point. The point is one of principle.

I objected in the course of the remarks I made on Second Reading to the phrase "securing a conviction". I think the Minister did say that it was found difficult to secure a conviction in cases of manslaughter. That phrase in my view is, to say the very least of it, a most inappropriate one. If a jury finds a person guilty of manslaughter or any other offence, that is the clear position. The fact is that the prosecution has not established the case in accordance with the rule of law. We in this House ought to stand firmly by the rule of law and the finding of strict proof in criminal matters for the prosecution.

Here it is proposed to create this offence by statute. A person may be guilty of that offence by inattention or by momentary negligence and he must be sent to jail. There is no discretion in the court. In my view that is so wrong in principle that were I alone in this House on this Bill, I would ask the Ceann Comhairle at least to register my strong view about creating such a position here under this statute. That is the question of principle.

Let us look at the matter from the point of view of expediency. Do the State authorities wish to secure convictions in all these cases? I take it that means there is some suggestion that judges and juries are not doing their duty in finding people guilty of offences. I do not think the House would ever endorse such a view. But even taking it that the view of the prosecution or the State authorities promoting prosecutions under this particular section is that they should get a conviction in every possible case, this section will defeat itself.

The provision of automatic sentence of imprisonment will ensure that judges and certainly juries with a strong sense of justice, and their conviction that there is something wrong about the section, will take care that unless they are extremely difficult cases and bad cases, there will be no conviction. That is what the Minister complained about, not securing convictions in manslaughter cases. Juries are very anxious to see it is only in very bad cases of manslaughter that a person should be subjected to the indignity and the consequences of a long term of imprisonment or any term. Therefore, they require that there should be strong proof of the bad cases.

I can say, after nearly 40 years' experience in this country of juries, that no jury in the world do their duty with such regularity and with such due regard to justice and law as the Dublin juries. This House may be assured that the Dublin juries or juries anywhere else, where a bad case occurs, will do their duty and convict in a proper case but if they know, as they did know up to the present, that conviction brought with it very serious consequences, then they hesitate to convict. It is only in very bad cases that they will do it. They will do the same here. You will get no convictions in cases of this kind.

On grounds of principle and expediency I urge the Minister not to persist in this measure. We have had experience in the courts right down through the centuries of the way judges and juries react against penal legislation of a harsh character. This is penal legislation not merely of a harsh character but of an unjustifiable character which exists nowhere else to my knowledge. I say that it should not be endorsed by this House on the grounds of expediency alone. I take my stand on this matter on grounds of principle as well.

Another consideration I should like to urge upon the House in connection with this measure is that a person alleged to have been guilty of dangerous driving can be prosecuted on indictment if he occasions death or serious bodily harm. Serious bodily harm may amount, in the view of a jury, to the loss of a finger but would anybody suggest that momentary inattention or momentary carelessness, causing the loss of a finger or, perhaps, the dislocation of a shoulder, both of which can be described as serious bodily harm, justifies automatic imposition of a term of penal servitude? That is what the measure proposes as it stands. That is what I object to and in the interests of principle and, at its lowest, in the interests of expediency, I urge the Minister and the House to accept this amendment.

I should like to support Deputy Costello. I am not a lawyer but it seems to me quite clear that the basic meaning of this section as it stands is that the result, not the degree of negligence or dangerous driving is taken into consideration in the section. Under present procedure, as I understand it, if a person is charged with dangerous driving, the papers are sent to the Attorney General who has the right to order an indictment before judge and jury. Under the proposed procedure, the Attorney General will have no powers beyond the ordering of an indictment which must be automatically sent to a judge and jury.

This means that the person so charged must stand trial before a judge and jury and must, if the result is serious—death or serious bodily harm —if convicted be sent to a term of imprisonment not exceeding five years. Take a person who has been driving faultlessly for a number of years and, through one small error of judgment— taking his eyes off the road perhaps in passing out a car—he is involved in an accident in which somebody is killed. He must be charged before a judge and jury and, on conviction, be imprisoned for a period not exceeding five years.

On the other hand we can take the case of a person who has been a consistently bad driver for the same number of years and has got away with it. That person can drive a car under the influence of drink and, through the grace of God and for no other reason, he does not cause death or serious injury. He is charged and under an earlier section can get off with a short term of imprisonment. Here we have the case of a person who is known to have driven carelessly, dangerously, and under the influence of drink, but he can get off virtually without penalty whereas a person driving safely and well for many years may be sent to penal servitude for one small error of judgment resulting in injury or death.

I think that is contrary to all justice. Accordingly I support Deputy J.A. Costello's appeal to the Minister to reconsider this section and the serious implications it holds. We all want to ensure that the careless and dangerous driver gets the full punishment attaching to his offence but I do not think any of us wants to provide that a normal driver, who has used a car carefully for a long number of years and who makes one error of judgment, should be automatically sent to prison. That, in fact, is the position that will obtain if this section stands.

I should like also to support Deputy J.A. Costello's amendment and to urge the Minister to reconsider this entire section. I think that in his understandable anxiety to bring home to people the seriousness of road accidents which cause injuries to other people, the Minister has gone rather too far in this section. I think the entire principle of the differentiation between subsections (2) (a) and (2) (b) in the section is entirely bad and entirely wrong.

It is all wrong that we should legislate in such a way that the result of bad driving is going to ensure the penalty rather than that the penalty should be measured by the degree of the bad driving. If the person stands as one guilty of a very slight degree of bad driving but is unfortunate enough to injure somebody as a result, he must go to prison and, in addition, may be fined £500. You may have cases of careless and dangerous driving of a most flagrant kind but simply because they did not result in an accident which caused death or injury the person guilty, as far as the court is concerned, need not be sent to jail.

What the Minister is doing in this section is taking the result of the driving rather than the driving itself as the yardstick by which the penalty is to be measured. The principle of it is completely wrong. The section as it stands, as Deputy J.A. Costello and Deputy Russell pointed out, makes it mandatory on the court to impose a jail sentence which may be as much as five years in any case where death or serious injury to another person is the result of dangerous driving. That is mandatory on the court under the Section.

Deputy J.A. Costello's amendment merely seeks to leave it to the discretion of the court so that, if the court thought it was a proper case for it, you could have a jail sentence or a fine or both. Quite apart from the obvious objections there are and which were voiced by a number of Deputies on an earlier section making it mandatory on the court to impose a jail sentence irrespective of the degree of bad driving involved, I think that the amendment tabled by Deputy J.A. Costello is entitled to consideration by the Minister.

If the Minister insists on the section as it stands at the moment I believe that the result in the minds of both judges and juries may very well be as indicated by Deputy Costello—that the Minister will not achieve his object by insisting on the section. Secondly, I believe that the section as it is worded leaves a great number of questions outstanding which will cause confusion. You have the position where a motor cyclist comes into collision with a car. The motor cyclist is not wearing a helmet, for example, and gets a knock on the head as a result of which he is either seriously injured or dies. The driver of the car may then be charged under Section 53 with dangerous driving causing death or serious bodily harm. Who is to say that the reason that death resulted from the accident was not due to the fact that the motor cyclist was not wearing a helmet rather than to driving of the car by the defendant? Those questions will arise and I imagine it would be perfectly natural that judges and juries in the interests of justice would incline to the view that if any such arguments existed in favour of the defendant the defendant should be acquitted.

I believe that in his anxiety to strengthen the position, if the Minister insists upon this section, he will in fact be weakening it. I should like to join with Deputy Costello and Deputy Russell in urging the Minister to reconsider the entire matter.

I, also, would like to support the amendment. I need not repeat the arguments so very well put by Deputy Costello but a point that strikes me is the difference between paragraphs (a) and (b) in subsection (2) which have been referred to by Deputy O'Higgins, that is, what happens when the result of an accident is death or bodily harm under subsection (2) (a) or in any other case as under subsection (2) (b). Somebody who momentarily slipped up could cause grievous bodily harm or death and find himself in this terrible jeopardy whereas the terribly bad driver who may have caused the wreck of six or more cars and is lucky enough not to cause serious injury can get off lightly. Even though he has driven very badly and caused a great deal of damage, he gets off much more lightly than someone who, through an error of judgment, is unfortunate enough to cause either death or serious bodily harm. It seems to be very bad law that the seriousness of any incident should be judged solely by the effect rather than by the obvious consideration of the degree of guilt of the person who created the accident in the first case. The thoroughly bad driver careless about everyone else on the road, driving furiously in traffic, who by his action causes a great deal of damage but luckily does not cause serious bodily harm, will get away, whereas an unlucky person who through a slip causes serious bodily harm is either to be sent to jail or we shall have a miscarriage of justice in that the courts will be so appalled by what they are bound to do if they find him guilty that they will prefer to let him off.

I think we are also discussing the Minister's amendment No. 69. This is his attempt, I think, to improve on the harshness of the section as it stands. That does not appear to me to be a very good way to deal with it, although better than not having it at all. It is an improvement of the section. I do not think it right that juries should be left in the position that while they think a car was dangerously driven, they will not convict because it would appear that the automatic penalty is so heavy. I do not think it is good that that practice should be set up. It would be much better to have due regard to what is certain to happen in the courts and I think the amendment would meet the case properly.

Listening to Deputy Costello—and I appreciate that he has very wide experience on matters such as these—I should be inclined to forget the situation now existing in so far as the ordinary lay person has seen the law in operation in recent years. Is it not a fact that the public mind has been outraged and appalled by the cases that have come to the courts after deaths resulting from cars being driven dangerously? Is it not a fact that manslaughter charges on several occasions have been preferred and that it is not just a question of the State having failed to get a prosecution but that the law as it now stands is such that the courts are debarred from bringing in a verdict of guilty in many of these cases where undoubtedly guilt exists to a large degree on the part of the driver concerned? That is how I, as an ordinary member of the public, have seen it and that is how thousands of others have seen it. We read of cases in the newspapers; we know of the comments made in the courts and we have seen people getting off as if the charge were no more than not having a light on a bicycle whereas in fact these people have driven cars in such a way that there is no doubt in anybody's mind that they were driving dangerously and that it resulted in the death of some innocent member of the public.

It is to deal with that situation that the new offence is being created in this measure. It is not, as possibly has been deduced by some members of the House, that the actual result dictates the offence. If death or grievous bodily harm has not resulted from dangerous driving, the fact that death results from the accident does not make the driving in itself dangerous. If it is a case of momentary inattention, as Deputy Costello put it, that would not of itself be sufficient to indicate dangerous driving and all that might go with it. In that event the courts would no doubt take the view that this could be regarded, and would ultimately come to be considered, as careless driving which would be an entirely different matter.

The fears expressed are that these penalties seem to be so harsh, that because jail is apparently mandatory under this section, the courts, juries and judges alike, will shy away from bringing in verdicts of guilty. What is the penalty we are complaining about? A jail sentence of up to five years. Nobody has mentioned that the sentence could be for a day and that the degree of guilt and the circumstances of each case can be dealt with by penalties ranging from one day to five years as the juries, judges and courts may decide is appropriate in the particular circumstances of the case coming before them.

I feel—and it is the expressed view of the voluntary organisations in this country who have vetted these proposals as they appeared in the White Paper and later as drafted in the Bill —that we required this type of legislation and that we must have it there apparent, even though not necessarily to be used, if we are to succeed in making any impact or impression on those who, by dangerous and negligent driving, cause death or grievous bodily harm. It is no use saying that if someone creates havoc but is fortunate enough not to cause death or grievous bodily harm his dangerous driving is dealt with in a much more lenient way by six months' jail or £100 fine or both.

If I were to take a hatchet to one of the Opposition Deputies, for instance, Deputy O'Higgins, and made a bold effort to do him as he sits in the House, if he dies as a result of that attack I would be taken up for murder. If I were convicted I could be hanged. If through no fault of mine I did not succeed in killing him I would be taken up for attempted murder, the penalty for which is much less. Where is the difference? Why cavil at what is suggested here when this situation exists in regard to other offences or attempted offences?

There is no parallel at all. In one case it is a question of something done deliberately.

What does the Deputy call dangerous driving?

As Deputy Costello has pointed out, it might be mere inadvertence for a second.

If it is mere inadvertence there is undoubtedly the opportunity for the court to judge, in all the circumstances as presented to them by the prosecution and the defence, whether or not it is dangerous driving or whether it could be regarded as careless driving. If it is decided by the courts that it is dangerous driving then, if death or grievous bodily harm has resulted, the Bill lays down that up to five years' jail may be imposed and, goodness knows, in some cases we have seen that would not be too much. On the other hand, if the circumstances are such that the court, having found that it was dangerous driving that resulted in death or deaths, it is quite conceivable, and within its competence, that the court would decide that one day's jail would be the penalty. That is an aspect of the matter which has been overlooked and one which should be given due consideration.

I am appalled at the Minister's answer to the very reasonable case that has been made. It leads me to the conclusion that this Bill will be a failure. It leads me to the conclusion that what the Minister and his advisers want, and what apparently is the official view, is to stamp all motorists as criminals. All motorists are not either negligent or criminal. The majority of people are law-abiding and are doing their best to keep within the law. Even though a motorist may be doing his best for years to carry out the law, he may be guilty of momentary inattention which will bring him the penalty of a jail sentence. Do I understand the Minister to argue that because the court can impose a day's punishment on a decent man, that is a complete answer to this question? I think it was Deputy Russell who spoke about giving a jail sentence to the rising of the court.

Most motorists are respectable people. I am dealing not with the case of the man who is clearly guilty of dangerous driving but that of the person who has tried to do his duty as a motorists all his life and who being human, is guilty of momentary inattention and dangerous driving. I have been watching the Minister during the speeches made by Deputy Russell, Deputy Sheldon and Deputy O'Higgins. He spent his entire time talking to his officials and to my belief has not listened to the arguments at all.

I take the Deputy up on that. I have heard anything he said and anything else that has been said.

I left myself out of the remark.

I have heard what all the other Deputies said, too: in fact I quoted some of the things Deputy Sheldon said which, if the Deputy had been listening, he would have heard.

I would like to continue the remarks I was making on the subject of this so-called reasonable attitude on the part of the Minister in saying a motorist may be sent to jail for a day. As I say, most motorists are decent people. It is bad enough for them to find themselves in the dock in Green Street with the position that used to exist. I do not know whether it is the same now but they used to have to go down to the cells during the lunch time. If that practice does not continue now as it existed in my early days, it is due to the discretion of the court.

These motorists have to go through the ignominy of being prosecuted before a jury. They must sit in the dock and incur all the expense necessary because of momentary inattention at the wheel. Perhaps the Minister would look at the 1957 report to which I referred, 41 Court of Criminal Appeal Reports, page 134, in the name of Parker. I wish to impress upon Deputies the seriousness of this matter. I was appalled by what the Minister said. He said that public opinion was outraged because convictions were not secured. I say that is a deliberate insult to the Dublin juries who are doing their duty.

Why does the Deputy not quote me correctly if he heard me?

I did hear the Minister.

The Deputy did not quote me correctly. I did not reflect on the juries. I was speaking about the law as it stands.

What the Minister said was that he and many others were outraged, or words to that effect, at the fact that people who obviously were guilty of manslaughter were not found guilty of that crime.

That is not what I said.

What it conveyed to me is what it would convey to an ordinary reasonable person listening to the Minister. No matter what he says, the remarks he made cast a reflection upon the juries and the judges who have to determine such cases.

The Deputy knows that is not so and no amount of repetition will commit me to it.

That is my interpretation and anybody who wishes to contradict it and form his own views of what the Minister said can do so when he reads the Official Report. "Secure convictions"—what other meaning is to be taken from it except that juries and judges do not do their duty?

Under the law as it stands, declared not by British courts but by the courts here, certain proof is required in manslaughter cases. I spoke about expediency. May I make another comment on this section to show how useless it is and how utterly wrong it is for the Minister to take up this intransigent attitude? Counsel and solicitor are defending people for manslaughter before a jury. If I may cut the thing short and leave out the technicalities, they always ask the jury to say in their view whether the facts as established justify their finding a man guilty of an offence the consequences of which would entail imprisonment. Every counsel or advocate defending a person charged under this section would say the same thing to the jury and would he not be right in saying it?

Here an offence is being created which if established and proved to conviction necessitates imprisonment. There must therefore be sufficient proof for a jury of dangerous driving of such a character as to merit imprisonment. Where will the Minister secure his conviction on that set of facts and on that interpretation of the law? The law must be respected by the public in order that it may be properly enforced. Thank God, we still have juries in criminal cases to defend the interests of the public against officialdom and the attitude of the Minister.

I would agree with the Minister to the extent that it is proper to create the offence of dangerous driving. That was the argument he put to the House a few moments ago but he did not say why it was necessary to have an automatic sentence of imprisonment. The Minister made no argument to justify this section and the imposition of an automatic term of imprisonment, beyond saying, in effect, that the law can be brought into contempt by the imposition of a sentence of imprisonment for a day. He said nobody drew attention to that, except, I think, Deputy Russell who, in passing, suggested throwing it aside because we would not regard that as anything else but bringing the law into contempt. It was further said that, being a judicial expression, it was not the sort of case contemplated by the section and should never have been the subject matter of an indictment.

If this House passes this section as it stands at the moment, it will be doing a very bad day's work for the enforcement of road traffic law. It will be setting up a very dangerous precedent and one contrary to all the principles we have stood for over the years since the establishment of the State.

I see something of what Deputy J.A. Costello is trying to put before us but I am afraid I cannot agree with him. I feel that possibly he has overlooked the section which we have just disposed of, Section 52. Surely any question of momentary lack of concentration is an offence which must be dealt with under Section 52 and not under Section 53?

Reference has been made to careless driving but Section 52 makes no reference to careless driving: it refers to driving without due care and attention. To my mind, the addition of the words "and attention" in that section must obviously have been designed to deal with a situation of momentary distraction when a person has failed for a moment to keep his eye on the road ahead and has become involved in an accident as a result.

If a case is taken under Section 53 which should more properly have been taken under Section 52, I think that is something which cannot be laid at the door of the Minister. I would not imagine for a moment that would be the case. However, if it is an offence which is properly alleged under Section 53 and can be substantiated I would support the Minister in all he says and in his view that a sentence of imprisonment must be mandatory because dangerous driving is something which has to be stamped out as far as possible.

I am possibly speaking against my own interest in this matter as a motorist, but too few people realise that a motor vehicle is essentially a lethal weapon or may become such in the hands of an irresponsible driver. We could draw a parallel between the driving of a modern motor car or even possibly a very ancient one, which is often more dangerous, and the carrying of firearms. People are not accustomed to carrying firearms in a public place but out in the country accidents do happen with firearms. It is regarded as an accident when a person is passing through a hedge and something catches in the trigger, with the result that the gun goes off and someone is injured.

We have not legislation to deal with the proper handling of firearms in a public place. I would not regard the driving of a motor vehicle as any less potentially dangerous than the carrying of firearms. I feel therefore that any conviction under Section 53 could take place only where the jury have satisfied themselves that the accused was actually guilty of drunken driving and that must necessarily mean deliberately dangerous driving, driving with wilful disregard for the safety of others.

Momentary lack of concentration certainly could not properly come under this section. However, anyone who wilfully drives too fast, who wilfully drives on the wrong side of the road around a corner, who wilfully approaches a number of children playing on the public roadway, on and off the footpath, and wilfully keeps his speed up and knocks down and kills or gravely injures a child who runs out in front of him is, to my mind, thoroughly deserving of imprisonment. I feel the Minister is perfectly correct in his attitude that it is only by making imprisonment mandatory that it can be brought home to the general public.

I would support the Minister too in his view that there has been a great public alarm that certain offences which have clearly been committed have not been punished as severely as people thought they should be. It may be said that possibly I am prejudiced by being on this side of the House but I thought the Minister made clear from the start that what he was criticising was the law as it stands which does not make it possible for the court to deal as seriously with an offence as the court in its wisdom would like to deal.

I do not say that Deputy J.A. Costello has intentionally misunderstood the Minister but certainly I did not get the same impression from what the Minister said as Deputy J.A. Costello did. Consequently, I support this section. I feel Deputy J.A. Costello's amendment is not fully justified. I agree, too, with the Minister that the court still has an absolute right to award only a sentence of imprisonment which the court feels is justified. I think we can leave it exclusively to the court to decide what sentence is justified. Even if the sentence is only for one day, a very considerable shock will be given to the accused person and to all his friends and relations. They will know that it was only good pleading by the defence counsel that persuaded the court possibly not to impose an even heavier sentence.

This really means that we are regarding dangerous driving as, in itself, criminal and we must face the conclusion that is to be drawn from that. It is only when dangerous driving is clearly defined as being a criminal offence in itself that people will regard driving as something which must be an exclusive occupation. There are still far too many people who evidently regard conversation, admiring the scenery and waving to acquaintances as the main thing and the actual driving is merely a subsidiary occupation. When driving, the driver must concentrate exclusively on what he is doing and he must be constantly seeking to ensure that he will be prepared to cope with any emergency that may arise. When a driver deliberately refuses to do that and decides he will get to the end of his journey in the quickest possible time, regardless of the safety of others, then he should be sentenced to imprisonment so that he may learn in prison the lesson he failed to learn when he had his freedom. I do not want to be unsympathetic with much of what Deputy Costello has said, but the matter is far too serious to deal with it in any other way than the way it is proposed to deal with it in this Bill and I support the section as it stands.

I should like to make two or three observations. Deputy Booth does not, I think, appreciate the position at all under this section. Everything he says can be achieved without the necessity for an automatic jail sentence. If there is a bad case, the jury will bring in a verdict of guilty and the judge will impose a severe sentence. I understand that is what Deputy Booth wants to achieve. I am with him on that. Now, I approve of the creation of this new offence but I disapprove of the imposition of an automatic jail sentence. Deputy Booth said this ought to be done under Section 52, relating to careless driving. Again, at the risk of being accused of repetition and an overemphasis of technicalities—Deputy Booth is, or was once, a lawyer— I refer him to the case I have quoted in the Court of Criminal Appeal in England. A person was found guilty of dangerous driving and the evidence was that it was the result of merely momentary inattention. A fine of £60 was imposed. That verdict was upheld by the Court of Criminal Appeal.

What have we here? The offender must be imprisoned. I want Deputies to realise—perhaps Deputy Booth will appreciate the point, too—that if an accident occurs after this Bill becomes law, both parties will be subject to indictment, the innocent as well as the guilty, because the Garda will not be able to choose which is responsible for the damage. If grievous bodily harm is suffered, both parties will be subjected to the ignominy of being brought before a jury. I do not think that should be allowed.

The Minister said, if I heard him correctly, that the voluntary associations had approved of this section. I want to ask a specific question: did any voluntary association approve of the automatic imposition of penal servitude or imprisonment for this newly-created offence? I know one that did not. Did the Automobile Association or the Royal Irish Automobile Club, or any of these authorities, either approve or expressly disapprove? We are entitled to an answer to that question because the Minister said the voluntary associations approved of the section.

The Minister should be slow in passing this section. He has carried on a conversation with his advisers all through this debate with whom perhaps he will have a better and more appropriate time in which to discuss this very important section. It is a very serious one. Our duty is to enact reasonable and fair legislation. If we have confidence in our courts we should leave it to them to administer the law and to inflict the appropriate penalty. The penalty should fit the crime. The courts are in a better position to decide how far they should go. I approve of this amendment because I do not think a mandatory jail sentence is the proper sentence. If a man is convicted of dangerous driving in the course of which a child injures a finger, to use Deputy Costello's illustration, that man will be sent to jail. It should be left to the discretion of the judge and jury to decide what the penalty will be. If we do our job, then I have no doubt they will do theirs.

I want to make one correction. I think I said the Automobile Association did not approve of it. If I did, then I want to withdraw that. I do not know what their attitude is. I was thinking of another organisation.

The purpose of the Bill is to make the roads safer and I think the Minister's provision is the correct provision. Deputy M.J. O'Higgins and Deputy Ryan have experience of Walkinstown Avenue and Ballyfermot Road. They will agree that there is really dangerous driving on those roads. The road is wide and motorists travel at 50 and 60 m.p.h. There are children playing on the footpaths. I was informed recently by a nurse in the children's hospital in Crumlin Road that casualties come in there and the injuries are consistent with the way in which motorists drive. If motorists knew there was a compulsory jail sentence, then they would be careful to keep their speed down to 30 m.p.h. in Walkinstown and Ballyfermot. On the other hand, if a motorist has an accident and serious injury results, if he can say that he was driving in a reasonable manner and suffered some momentary lapse of attention, looked out and did not see the child——

He can still go to jail.

——under the Minister's provision he would be guilty of careless driving.

Not necessarily. He can still go to jail under Section 53.

It is at the discretion of the courts. We are dealing with Deputy Costello's amendment now. Certainly from statements I have heard, particularly from Deputy Ryan, I think he is one member of this House who should completely support the section as it stands.

I think Deputy Lemass has been mislead by the discussion that has taken place here. The amendment which the Minister has put down in regard to this matter does not at all meet the objections which have been made to the section by Deputy Costello and others. I know we are not discussing this matter at the moment but we may refer to it. It is only where a court decides a person was not guilty of an offence under Section 53 that it could then convict a person under Section 52.

It has that discretion.

When it finds that he is not guilty of dangerous driving only, then the case which has been made abundantly clear by Deputy Costello is that a person who is guilty of even momentary inattention may under the framing of Section 53, as it stands, be found guilty under Section 53 of dangerous driving because dangerous driving is not, and cannot be, defined under the section. It is because of that situation existing that the necessity for Deputy Costello's amendment exists.

I do not feel that either Deputy Lemass or Deputy Booth, and certainly not the Minister, has given any adequate answer to the case made in relation to this question of a mandatory jail sentence. Whether we like it or not, the courts must have regard to this Bill as it is worded when it becomes an Act. The courts cannot afford to look at the matter as Deputy Booth did or as the Minister has frequently done in relation to various sections of the Bill saying: "Of course, a court knows what we want and a court will do this and that." A court will be obliged to act in accordance with the words of this section when it is passed. If a court convicts of dangerous driving under this section the courts will be obliged to impose a jail sentence. It may be that it will occur to some court to try to avoid an obvious injustice by adopting the device mentioned here of sentencing a person to a day's imprisonment or imprisonment until the court rises or something like that.

I do not think that meets the situation at all. If we are legislating in a manner which is bad, it is our job to halt ourselves. It is not the business of the courts to make it known publicly afterwards that they regard the legislation passed through this House as bad and worthy of treatment by them in a contemptuous manner. That is what the Minister is inviting the courts to do. He is inviting the courts to say that this legislation is bad; that it does not meet the circumstances as it should and deserves to be treated by them and by juries in a contemptuous manner.

Deputy Booth, I think, was entirely wrong in his approach to this section when he made the case that dangerous driving under the section applies only in cases where the dangerous driving was deliberate or wilful. The words "deliberate" and "wilful" do not appear in the section. I would go a long way with Deputy Booth towards withdrawing my objections to the section if he could frame an amendment and get it accepted by the Minister making it clear that the mandatory jail sentence was to be applicable only in cases where the courts came to the conclusion that the dangerous driving was done deliberately and wilfully by the driver. If Deputy Booth could have that accepted by the Minister, I would withdraw a considerable number of my objections.

That is not the case. Those words do not appear in the section. It is no business of the court to inquire whether the driving was deliberate or wilful. It is not a matter, as Deputy Booth said it was, of a criminal offence where the court is obliged to go into the question of mens rea and all the rest of it, the intention of the accused, whether he had a criminal intent and so on. That of course is the answer to the parallel which the Minister tried to draw between his endeavouring to murder me and Deputy Booth endeavouring to run me down with a car. There is a very big distinction. Deputy Booth will appreciate, possibly the Minister does not, my objections to this section going a lot further even than Deputy Costello's does. Deputy Costello's amendments are designed to leave it discretionary to the court, as it should be, to impose a penalty appropriate to the offence and leave it discretionary to the court as to whether or not a jail sentence is the appropriate thing.

I object to the section also on the grounds that I believe this differentiation between subsections (2) (a) and (2) (b) is completely wrong and bad in principle. I think it is wrong that the Minister should legislate in such a way that the penalty is going to be related only to the result of the dangerous driving rather than to the degree of the dangerous driving. That is what the Minister is seeking to do in this section. The offence which is being created is the offence of dangerous driving but people who are guilty of that offence are going to be punished by the results achieved from their dangerous driving and not by the degree of bad or dangerous driving of which they were guilty. I believe that is wrong in principle and that it will be very bad for this House to enact legislation containing that wrong principle.

The rather bloodthirsty example given by the Minister himself and the examples given by Deputy Booth and Deputy Lemass were all conclusively in support of the fact that the penalty should be related to the degree and not to the result of the dangerous driving. That does support the attitude which Deputies on this side of the House have taken in regard to Deputy Costello's amendment. Nobody wants to protect the deliberately dangerous driver from the maximum penalties. I think that was quite clear but I for one would like to see some discretionary power given to protect an ordinary common or garden decent driver who has been driving for a long period of years and who for one reason or another makes a mistake or some misjudgment or is guilty of a minor degree of dangerous driving on possibly the only occasion in his life. Under this section he must stand indicted before a judge and jury.

I do not think it is sufficient answer to say that the court can let him off with one day's imprisonment. The fact remains that he is headlined virtually as a criminal before the world and certainly before his own community. Such a charge will stand against him for the rest of his days. At the same time, a man who has been a consistently dangerous driver, who, but for the grace of God, might have killed several people, more by luck than judgment gets away with it. He is the one man we all want to get, but under this section he cannot be got because he was not involved in an accident causing grievous bodily harm. He is the man we all want to see get the maximum penalty for the offence of dangerous driving. I do not think the Minister wants automatically to impose sentences of penal servitude on drivers guilty of one error of judgment. It might be himself, Deputy Booth or Deputy Lemass, who made a momentary error of judgment, by reason of which somebody received serious injury. I do not think the Minister wants that situation to obtain. What we want is to have the point of view made by the Deputies who have spoken in support of the amendment clarified by the Minister. Deputy M.J. O'Higgins has suggested that if the Minister could in some way on Report Stage work in some amending clause into this section, it would fit the bill. I agree with that suggestion. My anxiety is to see that the ordinary, decent driver who may have suffered a momentary lapse is not hauled before judge and jury to leave a mark on him for the rest of his days.

The dangerous driver who, as Deputy Russell pointed out, through luck or judgment, has not caused serious bodily harm, is not free from penalty under this Bill. He may be sentenced to imprisonment under paragraph (b) of subsection (2).

But it is not automatic.

If a person is struck by a motor car travelling at very high speed, the injuries that person sustains will determine, to a large extent, the degree of dangerousness of the driving.

Nonsense. Ordinary careless driving caused death in England in the case I referred to.

If penal servitude were mandatory, surely the jury have discretion to say it was not dangerous driving?

The case I cited was one of ordinary careless driving.

If I were sitting on a jury and found that the accident occurred through momentary inattention, I would say the person before the court was not guilty under this section, but under Section 52.

Deputy Lemass is talking about an obviously outrageous case of dangerous driving. I have been drawing attention to the unfortunate position under this section of the consistently good driver who is guilty of a momentary lapse.

Mr. Ryan

This section as it stands punishes a man not because of the degree of his dangerous driving but because of the degree of his bad luck —no more and no less. I would point out in reply to Deputy Lemass's point that death does not always follow an accident where a car was moving at a fast speed. It has been known for a pedestrian to be in collision with another pedestrian and to have suffered death as a result. It has been known for a cyclist travelling at a reasonable speed to collide with a pedestrian and kill the pedestrian. Sometimes it is not the degree of speed at which the collision occurred that determines the severity of the injury but the feebleness, the ill-health or the age of the victim.

All of these cases would be cases in which the unfortunate motorist would find himself facing a sentence of penal servitude of up to five years. The section is well-intentioned but is very ill conceived and the amendment, far from making it unsatisfactory, would have the reverse effect. While we have in this Bill provided severe punishments for people who deliberately or recklessly drive dangerously, we are providing in the Minister's proposals an escape clause which will lead to many injustices and will induce judges and juries to avail of it rather than send an unlucky motorist to prison.

I would strongly urge the Minister to consider the points mentioned here; to consider the injustice of imposing a penalty because of ill-luck and not because of dangerous driving. What is needed is the drafting of a new section providing that where the driver of a mechanically propelled vehicle drives wilfully and deliberately in a manner which he himself must reasonably have known would probably cause serious injury or death, the penalty shall be mandatory. In that case, we on this side of the House would not have the same strong objection. I appreciate the object behind this section is to supply a want in our law. We must prove very conclusively a number of difficult things before a person can be convicted of manslaughter by reason of driving a mechanically-propelled vehicle and I appreciate the Minister wants to get away from that, and to punish severely people who deliberately and recklessly drive in such a manner as to cause serious injury or death to another person.

We are not doing that in this section as it stands. Certainly if we are, we are doing it only at the risk of punishing people who were not guilty of an extremely dangerous degree of driving, but who were unlucky enough to cause death or serious injury. We know that a person can drive extremely dangerously and recklessly and only brush against a pedestrian or another car and that that person, though he caused no serious injury, is more culpable than a person who, though driving moderately dangerously, causes serious injury or death. We must surely punish a person who is guilty of a serious degree of dangerous driving and we can do that by amending the section by saying that a person is driving at a speed that any reasonable person would know was likely to cause serious injury or death. Deputy Lemass suggested that voluntary organisations did not support this view.

It was the Minister who referred to that.

Mr. Ryan

I apologise to Deputy Lemass. I am aware of two motoring organisations, the Automobile Association and the Royal Irish Automobile Club, who are both opposed to subsection 2 (a) of this section. They are sympathetic with the idea that a person guilty of a degree of reckless driving should be punished severely, but they feel it is wrong to punish a man for some misfortune beyond his control. I can tell the Minister that he will be the most disappointed man in this House if the House accepts the section as it stands because judges and juries will escape to Section 52. At the present time when a member of the district court bench is faced with a difficult decision about the degree of dangerousness, he escapes to the careless driving section.

I am quite certain that where mandatory imprisonment is involved, you will have far more occasions of escape to the careless driving section so that the Minister, while his intention is to warn the public of what the result of dangerous driving will be in the future, is missing the point. I would again urge him to consider the points made by men of experience who appreciate how these sections are interpreted by members of the bench. The Minister should appreciate that we are sympathetic to those objectives. I do not think he will attain them in the manner he proposed and certainly if he does, it will only be by imposing unfair penalties on people who are not as culpable as the Minister might think in all cases.

Deputy Ryan—taking the last speaker first—typifies the general discussion that has taken place on this matter. On the one hand he holds out—and I do not disagree; I accept that the view of all Deputies is to try to make this Bill workable with the particular object of improving safety on the roads—that while he is sympathetic towards this section of the Bill as a whole, people will be found guilty and sentenced under it to penalties which, in the circumstances, will be too severe. On the other hand, and in the same breath, he points out that as a result of the official amendment there will be an escape clause with the result that very few people will be convicted at all.

The attitude adopted by Deputy Ryan is typical of the general contradictions that have come from those benches in the last half-hour. Different Deputies have followed the line that if we could bring in a new section that would outline wilful and deliberate dangerous driving as an offence which will carry these severe penalties, we would all be happy. Were that "wilful and deliberate" clause inserted it would almost leave us where we have found ourselves all through the years. It would have almost the same value as a charge of manslaughter against a motorist who has caused a death at present. I think the House is fully agreed that we should remedy that situation, and yet the same members are now suggesting that we should add or put in a new section that would be tantamount to leaving the situation almost as it is. Yet, nobody agrees it should be so left.

There is also the question of the result of the accident. It is unfair, it is said, that the result should dictate the penalty. Possibly in all good faith there is this display of sympathy for the decent honest people who will find themselves in jail. It is too bad that that should happen we are told, and we are going to be sorry for them because they may even be brought into court. But do any of us stop to think that these decent people—and I have no doubt that the term in this case would cover 99.9 per cent. of those who come into court—will be coming in on charges which in themselves surely cannot be regarded as decent inasmuch as these people will have killed or maimed somebody through dangerous driving. Whether it has been wilful or deliberate dangerous driving to their knowledge does not really matter.

Surely it would be absolutely out of the question that we should ask the courts to find guilty only people who were wilfully and knowingly driving dangerously when they killed somebody? If we are to have cars on the public roads, we owe it to the public to try to ensure that these machines will not be driven dangerously where at all possible. To impose on the custodians of the law the obligation to prove that dangerous driving was wilfully and deliberately carried out before sentence could be passed would be ludicrous. It would be merely blinding ourselves to the fact that we must protect the public on our highways. I think that is being completely forgotten in the heat and enthusiasm invoked for the poor unfortunate person who finds himself in the dock charged under this section after an accident that has resulted in death or grave bodily harm. Let us not forget that the person so charged, even though he is sent down to the cells during the luncheon break and must put up with that, is in a far better position than the person who has been killed.

We should remember that and we should also remember that we are not just trying to penalise people, not bringing in penal laws for the sake of hurting people but with the avowed intention of trying to protect people. In so doing, it may well be that we shall penalise some people but if they suffer, those penalties have come about through their own actions. They are imposed in the interests of the future safety of the general public. It is agreed inside and outside the House that this legislation is necessary and that it is long overdue in all its various aspects, as put to the people in the White Paper.

Deputy Costello asked a specific question following my earlier intervention: did any voluntary organisation approve of the mandatory jail sentences as approved in this section? The Safety First Association have so approved and in so far as objections are concerned I am aware—and this is subject to correction—that the Automobile Association does object. So far as other organisations—and there are quite a few interested in these matters—are concerned, we are not aware that they have objected. That does not imply that they may not object.

All to-day's discussion boils down to one point—whether or not, when we cut out all the trimmings, we should have mandatory jail sentences in this section. The same question arose in regard to the charge of drunken driving or driving while under the influence of intoxicating liquor or drugs. In that case I undertook to have this aspect of the matter further considered before the next Stage and I see no reason for not giving the House the same undertaking in regard to mandatory jail sentences in this section and considering both at the same time.

There is an obvious misunderstanding in relation to what was said by me and expounded by Deputy Costello who referred to what he believed was a criticism by me of the manner in which juries in Dublin and elsewhere carry out their duties in regard to convictions on charges of manslaughter. I want to deny categorically that I in any way reflected on the juries. I want to say again that I was quite specific in pointing out that it was the law as it now stands that prevented the juries and the judges in our Courts from finding persons guilty where death had occurred as a result of a road accident. I want to reiterate that it was in no way and could not be taken as a reflection on judges or juries particularly the juries who give this very excellent service for which they are not compensated in any way.

The mandatory jail sentence part of this section seems to be the real point at issue. I am prepared to undertake to the House to have that aspect of the matter further and fully considered between now and the next Stage as I have undertaken earlier to consider the mandatory jail sentence in regard to drunken driving charges.

Amendment, by leave, withdrawn.

I move amendment No. 68:

In subsection (3), line 38, after "not" to insert "of itself".

The subsection to which this amendment is directed inadvertently contradicts the definition of dangerous driving. Dangerous driving is to be ascertained by reference to a number of matters and all the circumstances of the case. One of the circumstances is the speed at which the person is driving. These are matters which the court or the jury would take into account in determining whether dangerous driving has been proved. The subsection to which my amendment is directed provides that it shall not be a defence for a person charged with dangerous driving to say that he was driving at the speed limit. That is one of the things that determines whether he is guilty or not. According to the subsection it cannot be a defence for a person to say he was driving within the speed limit. My amendment provides that it shall not of itself be a defence that a person was driving within the speed limit. If the Minister looks at it he will see there is at least something to be said for the amendment I have put down.

I do not quite get the impact of the Deputy's explanation. It seems to me that the subsection as it stands is pretty clear and specific but I may have missed the point.

It is very clear and specific but in conflict with the other provision.

I have looked at this and I just do not see what is the necessity for it.

What is the objection to putting in the words "of itself"?

I do not think it is necessary to put those words in.

Perhaps the Minister cannot grasp what I have not too clearly stated. The subsection to which I have drawn attention in the amendment says that it shall not be a defence for a person charged with dangerous driving to say that he was driving within the prescribed speed limit. Surely if that section stands a person would not be able to submit to the court or the jury, as one of the elements to be taken into consideration as to whether or not he was guilty of the offence, that he was in fact observing the speed limit. If you say it is not to be a defence it can be open to the interpretation that he will not be able to say to the court or the jury: "I was under the speed limit."

Would it not possibly raise a doubt if this were inserted?

Not at all, because the words "of itself" would eliminate that. Surely a person is entitled to say in his defence that he was doing what the law imposed upon him? What I take the subsection to mean is that it should not be a complete defence to the charge to say he was driving at the speed limit. That may be what the Minister intends, that the person should be entitled to submit to the jury all the considerations that may be taken into account including the speed limit. Will the Minister have it examined by the Parliamentary Draftsman or some lawyer?

There is just this point and, in this connection, if the House has anything to say in elaboration of it I shall be glad to hear it. The insertion of the words "of itself" would imply that this reference to the speed limit should be by right used as a defence—

No. On the contrary.

Part of the defence.

Putting in the words "of itself" would help the Minister's point of view, because it shows it will not be a defence, unless other circumstances are taken into account, to say that a person was driving under the speed limit.

I shall look into it but, innocent though it might appear, it does seem to have——

There is no trap in it from my point of view. I merely want to direct attention to the difficulty I found in interpreting it. If it can be cleared up by some legal person I shall be satisfied.

Mr. Ryan

Before the amendment is withdrawn might I suggest that the subsection could be taken out altogether, which would achieve the point Deputy Costello is making? I would ask the Minister to consider this illustration. Under the law as it stands if a man is going through the traffic lights and they are green in his favour he might collide with somebody coming across the intersection. We know for a fact that at law, although I do not think it is written in, it is not of itself a defence to say: "The lights were green in my favour and I went through them." It does not remove the obligation which still lies on that person to keep a proper look-out.

I believe the subsection the Minister has inserted is not strictly necessary because the court will say it is not of itself a defence to say: "I was under the speed limit." There are other things which must be taken into consideration. It might be all right to drive at 25 miles an hour if the speed limit were 30 miles an hour, as in some streets but in other streets you might not be allowed to exceed five or 10 miles an hour. I am quite certain that without that subsection the courts would so interpret the section as a whole.

It is not intended that it should be a defence. It was not so in the 1933 Act and bringing it up now, as suggested by the Deputy, which might possibly get the agreement of the House, would seem to imply that we were now for the first time allowing this as a defence.

If we take it out——

You are taking it away as a defence altogether.

This is a matter that should be considered when a person is being defended or is defending himself against the charge of dangerous driving. His attitude will be: "I am not guilty. You must find out all the circumstances of the case. One of the circumstances is that I was driving under the speed limit. I ask the jury to take that into account in considering whether it was dangerous driving." Under this section somebody may say: "You are not entitled to say that to the jury."

I think the better thing is to give it further consideration.

Amendment, by leave, withdrawn.

I move amendment No. 69:

To delete subsection (4) and substitute the following subsection:

"(4) Where, when a person is tried on indictment or summarily for an offence, under this section, the jury, or, in the case of a summary trial, the District Court, is of opinion that he was not guilty of an offence under this section but was guilty of an offence under section 52 of this Act, the jury or court may find him guilty of an offence under section 52 of this Act and he may be sentenced accordingly."

This is to amend a defect that became apparent in the Bill at a later stage. It is a drafting amendment, merely that and nothing more.

Is this merely bringing it into line with Sections 50 and 51 of the present Act? It is giving a justice the alternative of saying: "I do not find you guilty under Section 53 but I do find you guilty under Section 52."

That is right.

Amendment agreed to.

I move amendment No. 70:

To add to the section the following subsection:

"(6) Where a member of the Garda Síochána is of opinion that a person has committed an offence under this section and that the contravention has caused death or serious bodily harm to another person, he may arrest the first-mentioned person without warrant."

This is an amendment which, from our information and from our discussions with the Gárda authorities, we find is regarded as very necessary to deal with (1) drivers of self-drive cars, for instance, and (2) Six-County drivers. It is regarded as necessary in those two specific cases and for that reason I am bringing it before the House and recommending its acceptance.

I would have a lot of sympathy with the amendment, which is very necessary, but it worries me very much as to what is "serious bodily harm." For instance, to a very old person a tip on the elbow might cause serious bodily harm whereas to a younger person it might be a trivial injury. It is very unfair to place the onus on a Garda to decide what is serious bodily harm.

I often thought it might be better if there were some certificate as to what serious bodily harm is from a medical man or from somebody in a position to say what it is. I have a lot of sympathy for the amendment and I can see the necessity for it. If we could just have that clarified in some way, I should feel happier about it.

That is the question. The Deputy is fairly satisfied that clarification in the manner which he would seek is not really practicable in the circumstances. I think it will be impossible to define. If we view the amendment in the light in which it is being put to the House we must consider the necessity for it, the occasions which may arise—

I do not think you can amend it very much.

I do not think so. I suggest that a definition is really impossible. Nevertheless it should stand.

What does arrest entail? A man is arrested and brought to the barracks. What happens then? He is brought to a Peace Commissioner?

He may not be. He may be charged and released on bail.

Charged before whom? How long will he be under arrest?

There is a fixed statutory period.

The man is arrested and brought to the barracks. Must he be charged within a certain time?

No. The circumstances will have to dictate the procedure.

He would not necessarily be confined to the cells in the barracks for days, would he?

Is there a stipulated period within which he must be charged?

What is it?

I shall look it up and send it to the Deputy. There is a limit.

I think it is hours——

I think so too but I cannot say definitely.

It is a bit harsh to give a Garda that discretion.

Why not consult us? It would be most remunerative to us.

It will not be dealt with in any way different from other cases of arrest.

Deputy O'Donnell has complained more or less about the discretion a Garda has. If a Garda has discretion to arrest me for what other people might consider to be a trivial injury, that entails my being confined to a cell for 24 or 48 hours. That would be a serious thing.

It is very difficult to make provision for all contingencies that might arise.

Apart from this Bill, I thought there was some stipulated period between arrest and charge.

I think under the Criminal (Amendment) Act, 1951, they must be charged.

Amendment agreed to.
Amendment No. 71 not moved.
Question proposed: "That Section 53, as amended, stand part of the Bill."

Mr. Ryan

We are providing here for trial on indictment of a charge of dangerous driving with death ensuing. It would be appropriate to make a plea, while it is not the bailiwick of the Minister for Local Government, that in providing for this procedure we ought once and for all to expedite the system of taking depositions in the District Court. At the moment, in addition to penal servitude and fines we also inflict upon the unfortunate person who is charged, perhaps weeks and months of waiting and long hearing in the District Court, the taking of depositions which the Clerk records in longhand and which are then read out laboriously to the witness. If we provide for trial for killing with a motor car, we at least ought to hurry up once and for all the system of taking depositions in the district court. Wire recorders are available in this mechanical age. Seeing that this is a mechanical Bill, we ought to introduce them so as to take down the evidence mechanically.

I shall pass on that information to the Minister for Justice.

Question put and agreed to.
Progress reported; Committee to sit again.
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