(Cavan): When I moved the adjournment of the debate, I was dealing with Part III of the Bill, with particular reference to section 22 which seeks to restore to the Minister for Justice the right to restore driving licences which have been taken away by the courts. I pointed out that between 1933 and 1961, the Minister for Justice for the time being had the right to restore any driver's licence which was taken away by the courts. Experience in that period of 30 years demonstrated clearly that this was an unwise and even a dangerous power in the hands of a Minister for Justice. It was apparently realised that pressure could be brought to bear on the strongest Minister for Justice to force him to restore a driving licence, which had properly been taken away by the court, when he was not happy to do so.
The 1961 Act—very wisely, in my opinion—took away from the Minister for Justice the right to restore these drivers' licences. In doing that, it restored confidence to the general public. The general public became satisfied that, once a driver's licence had been taken away, it could be restored only in public court after an application had been made to the district justice after a period of six months or to the Circuit Court by way of appeal. I think everybody was quite happy about that provision. The experience of nearly 30 years demonstrated that the procedure whereby the Minister, by a stroke of his pen, could restore drivers' licences was quite unsatisfactory. We all remember the announcements in Iris Oifigiúil from time to time giving notice that the Minister had restored the following driving licences. That became a source of minor scandal and led, in my opinion, to the abolition of the right by the Act of 1961.
I fully realise that the Minister is not here seeking power to restore consequential disqualification orders. I know that. I know that when a man is disqualified for drunken driving under the new measure, if it becomes law, the Minister will not have power to restore a licence. I fully appreciate that. The Minister would have the power to restore ancillary disqualification orders, that is, disqualification orders made for other reasons—in cases of dangerous driving, and I suppose, dangerous parking, and so on. I do not see why the Minister should seek this power. The Minister seeks to justify this section by saying that if the Minister has not this power, an irreparable injustice may be done. A man may be deprived of his driver's licence for a period of two months or three months by some unreasonable district justice. He may be compelled to suffer that penalty and would have no redress.
The Minister knows perfectly well that there are ways out of the difficulty other than the undesirable one of going back on a practice which was in operation here for 30 years and which the general public believe was abused. The Minister says that a district justice might refuse to suspend the operation of an ancillary disqualification order pending an appeal and that, as a result of that refusal, an accused person of my colleague, the Minister for Local would, in certain circumstances, suffer the full disqualification before his appeal came on for hearing in the Circuit Court. The Minister knows perfectly well that there is a simple way of remedying that situation. He can write into this Bill a section to the effect that, in the case of an ancillary disqualification by a district justice, a district justice shall, on request made to him, suspend the coming into operation of the ancillary disqualification order pending an appeal. In that way, no injustice can be done. Indeed, the Minister could say that the coming into operation of an ancillary order would automatically be suspended on the lodgment of notice of appeal. I think the first method I have suggested is preferrable, that is, the one that the district justice would be obliged to suspend the ancillary disqualification order on request, pending appeal. I think that is the simple way out of the difficulty to which the Minister referred. It is one which would be welcomed by the public and it is one which would take a bad appearance from this part of the Bill. That is all I want to say about that section; I shall have more to say about it on Committee. I shall certainly put down an amendment but it is clear, beyond doubt, that it is not necessary to restore to the Minister the power to revoke a court order in order to get over the difficulty of the short suspension of a driver's licence.
I should like to say a word or two in a general sort of way about section 19 of Part III. This is a section which makes it obligatory on a person, on an application for a driver's licence, to undergo an eyesight test at the same time. The section operates like all the other sections of the Act, partly through itself and partly through regulations which the Minister will make. Reading between the lines in the section and the explanatory memorandum, I get the impression that it is the intention of the Minister that the driver-tester, a mechanic, skilled in the driving of a motor car, is the person who is going to carry out this eye test. If it is, if that is the position, I think it is certainly going very far. If it is not the position, I hope the Minister will say so when replying to this debate. I could not agree for one moment that a person should be refused a driver's licence on the ground that his eyesight is unsatisfactory on the word of a driver-tester, who, as I say, is a mechanic without any experience at all in the art of testing eyes and who has no medical qualification.
Mark you, if I understand the section correctly a person who is refused a licence by a driver-tester will have to appeal to the District Court against the decision of the driver-tester that his eyesight is not good before he can get a licence. I certainly think that a member of the public should not be put to that expense. If he is to be refused a driving licence on the ground that his eyesight is bad it should only be done on the certificate of a properly qualified doctor. It is rather difficult to follow what exactly is meant by section 19 because you are thrown back on these regulations but on referring to the explanatory memorandum, I gather that the person who will test the eyes of the applicant is the driver-tester.
The controversial part of this Bill is Part V which deals with driving offences with particular reference to driving or attempting to drive or being in charge of a motor vehicle while impaired due to the consumption of alcohol or a drug. I want to make it perfectly clear at this stage that I fully appreciate the seriousness of driving or attempting to drive or being in charge of a vehicle while a person is impaired due to the consumption of alcohol or the taking of a drug. I want to make it perfectly clear that I am prepared to give the Minister all reasonable powers to deal with the drunken driver and that I believe that the Minister should have such powers as are reasonably necessary to ensure that drunken driving is discouraged and that people who are guilty of that offence will be brought to justice and put off the roads. At the same time, we could allow our concern for the harm that can be done to people and property by drunken driving to blind us to the necessity for safeguarding the liberty of the subject and the rights of the individual. That is the danger I see in dealing with something about which people can get so concerned and so "het" up as about the question of driving.
I am prepared even to agree to break new ground with the Minister and to provide scientific tests, but in doing so, I believe that we should be careful to ensure that a person remains innocent until he is proved guilty, and I believe, too, that we should respect the code of criminal law that has been in operation here for many years and that we should not too easily or too readily go abroad to the Continent of Europe or elsewhere and take a part of a continental criminal court and bring it over here and put it into operation, without being sure that it is suited to our conditions here and without being sure that it is suited to our tradition.
We had an example of that some very few years ago in another field of law reform when the Minister for Justice sought to transplant a continental form of succession law in this country. A Succession Bill was introduced by the Minister—I fear without giving it very much thought—but it soon became apparent that it was quite unsuited to our conditions and that it would not have been accepted by the people as a proper system of succession, so much so that on Second Reading the Minister, who introduced the measure, or his successor, ran away from it. Indeed, he did not even wait until the Second Reading speech because I think he held a press conference and disowned the whole thing. I shall not go into this in any further detail, beyond saying that when the Succession Bill became law, its own father would not know it. It was a completely different measure and an infinitely better measure which by and large does its job and at the same time, respects the wishes of the people, respects the traditions of the country and respects the circumstances of Irish family life.
I hope that when Part V of this Bill becomes law, it also will have been amended to such an extent that, while it will still give the Minister the authority he seeks to deal with the drunken driver, it will still respect the liberty of the individual and will preserve the fundamental rights of accused persons.
I agree with the introduction by the Minister of a breath, blood and/or urine test with qualifications, subject to what I will say afterwards. I believe that these scientific tests, and the results of them properly placed before the courts as evidence, can be of considerable help. Therefore, I am, broadly speaking, in agreement with the sections of this Part of the Bill which introduce for the first time in this country, in the detection of the offence commonly known as drunken driving, the breath test and the blood test with the alternative of a urine test.
Where I differ from the Minister is in the weight the court is to attach to the result of these tests. Experience in the courts in this country over the past 30 years or so shows that, where a person is accused of drunken driving and is acquitted, he is usually acquitted because a prima facie case has not been established against him and because he is not called upon to enter the witness box.
One does not like speaking of one's personal experience in one's professional capacity, but I do not mind going on record as saying that I have represented in my professional capacity as a solicitor dozens, and I suppose, maybe many more than dozens, of persons charged with drunken driving, and I suppose I succeeded in having a percentage of those persons acquitted, but in nearly every case they were acquitted because a prima facie case was not established against them, and because it was not necessary for them to call a witness to rebut any evidence called by the State. That is my personal experience and I feel it must be the experience of other advocates who have experience of this type of case.
The Minister gave us a figure of 125 milligrammes per 100 millilitres of blood as indicating that the person concerned is considerably impaired. As the Minister says, he could either have made the presence of that percentage or any given percentage of alcohol evidence to be taken into consideration by the court in trying the person charged, or he could have made it prima facie evidence imposing on the accused person the onus of proof that he was fit to drive; or he could have made it absolute evidence that the person concerned was impaired to such an extent that he could not safely drive. The last is what the Minister has done here. He has made the presence of 125 milligrammes of alcohol to 100 millilitres of blood conclusive evidence of unfitness to drive. I say that that is going much too far.
Our object and, I am sure, the Minister's object in introducing this Bill, is to put off the road people who are unable to drive due to the consumption of excessive amounts of alcohol. That is what is behind this part of the Bill. The Minister has not made a good case for making 125 milligrammes of alcohol to 100 millilitres of blood conclusive evidence. The Minister in a few places in his opening speech used expressions like, "the great majority of such people are unable to drive". He said:
The Commission's own view that, at a blood-alcohol level of 125 milligrammes per 100 millilitres, the driving ability of the great majority of persons will be seriously impaired would seem to justify a provision making that level proof of guilt rather than prima facie evidence as they recommended.
I noted here and there through the Minister's opening speech that admission and I do not think the Minister is making the case to the House that everybody who has that percentage of alcohol in his blood is impaired or is unable safely to drive a car and on those facts the Minister's case must fall.
I am quite prepared to accept that percentage if we agree to it later on in Committee—I am not binding myself here to agree to that percentage, but, whatever percentage is agreed to—I am quite prepared to accept that as prima facie evidence imposing on the accused person the obligation of going into the witness box or otherwise satisfying the court that at the material time he was capable of driving the car, and that is what we are concerned with here.
I am not alone in my views that the presence of a given quantity of alcohol should be prima facie evidence only, As the Minister has stated, the Commission on Driving While under the Influence of Drink or a Drug was set up to deal with this very subject. That Commission consisted of a number of distinguished persons. The Commission included Mr. Justice Cahir Davitt, President of the High Court, Professor Maurice Hickey, State Pathologist, Very Reverend D. P. Kennedy, S. J., President of the Safety First Association, Dr. Sean McCann, general practitioner, Superintendent McGonagle, Traffic Section, Garda Síochána, Dr. Desmond McGrath, Psychiatrist, Mr. Dermot O'Clery and Mr. R. O'Donohue, representing motoring associations, Mr. O'Donovan, Chief State Solicitor, District Justice Rochford, Mr. Sheehy, Department of Local Government, and Mr. Total of the Department of Justice. Those gentlemen were asked by the Minister's predecessor to consider this whole question and report to him. I want to take this opportunity of joining with the Minister in expressing the thanks of this House to the members of that Commission for the expenditious manner in which they dealt with the task entrusted to them and for the very considerable amount of work which they obviously put into it and the trouble they went to.
That Commission unanimously supports the case I am making. That Commission recommended to the Minister that 125 milligrammes to 100 millilitres of alcohol in a person should be prima facie evidence and prima facie evidence only of an impairment. What does the Minister do? He takes the very same figures, 125 to 100, and seeks to make it conclusive evidence. If the Minister does that, he will not have the support of the country; he will not get public opinion fully to support him, and the Commission in their recommendations pointed out that it was necessary to have public opinion behind any proposals to deal with drunken driving. The figure of 125 milligrammes is represented apparently by anything more than four pints of stout consumed over two hours, under social conditions. That means that as far as the law is concerned, if this Bill becomes law, if a person has consumed 4½ pints of stout socially over two hours, then he is drunk, and he will be convicted and his driver's licence will be taken away, and there is nothing he can do about it.
I quite concede that a person might be drunk after the consumption of that amount of alcohol but it must also be conceded that very many people might not be drunk and would be quite capable of exercising proper control over a car. I want to emphasise again that I am not making the case for the drunken driver. I am making the case for the driver who is not drunk and who is capable of driving a motor vehicle but who is going to be caught up in this scientific test and is not going to be allowed to have any answer. A sub-committee of this Commission travelled to Europe and visited a number of countries such as Norway, Sweden, Austria, perhaps Denmark, but certainly they visited five or six European countries in which this test is conclusive evidence. In those countries they spoke to the police officers charged with the task of enforcing this legislation which we are now seeking to enact; they spoke to medical practitioners and they visited the courts and they came back and recommended against what the Minister is now seeking to do in this Bill.
I had marked to read in full the very section which the Minister read in full, the section of the Commission's Report which recommended that the blood alcohol level should be taken as prima facie evidence only. As I say, I am convinced that the making of this blood alcohol test prima facie evidence will achieve the Minister's very desirable objects and will at the same time preserve our standards and our tradition that a man is innocent until he has been proved guilty. I will go further and invite the Minister to give it a trial and if he is satisfied after a number of years that it does not work out, then he can come back to the House with amending legislation going the whole hog, if he can convince the House that this is necessary.
The Minister seems to think that something happened since the date of this Commission's report. As far as I can ascertain, from public pronouncements, made from time to time, if this Commission were asked to recommend or advise today, they would recommend exactly as they have already recommended. Speaking as recently as 28th November last at the presentation of safe driving awards to CIE drivers, Father Kennedy, S.J., who is president of the Safety First Association, and who was a member of this Commission, re-affirmed that the Commission had recommended that this blood test be made prima facie evidence only and he seemed to be rather alarmed that the Minister had not accepted the recommendation of the Commission. I am sure that nobody can accuse Father Kennedy, S.J., of not being concerned for the safety of road users or of not being concerned to put the drunken driver off the road.
In my opinion, the Minister has not made a strong case, or any case indeed, to justify making the presence of this amount of alcohol in the blood conclusive evidence. I disagree entirely with the Minister when he seems to think that the implementation of the Commission's recommendation would not materially improve the position in relation to the detection and prosecution of offences involving drinking and driving. Once you shift the onus to the accused person of proving that he is able to drive, once you shift the onus from the State to the accused, you make it much more difficult—and I have no hesitation in staking my reputation on this—for the accused person to get off. You are putting a very substantial onus on him.
The Minister seems to distrust the courts and seems to think that because the penalties provided for drunken driving are heavy, the courts would lean over backwards in order to let the accused person off, and would be easily satisfied on the discharge of the onus of proof which he suggests should be imposed on the accused person. That is a very wrong approach on the part of the Minister. Over the past 50 years nearly the courts have proved that they accept their responsibilities seriously, and that they convict where they should convict in accordance with the law, and acquit where they should acquit in accordance with the law.
I strongly urge on the Minister to accept the recommendation of the Commission which his predecessor set up and which reported as comparatively recently as 15th May, 1963, and recommended without qualification and without any reservation that this evidence should be prima facie evidence and prima facie evidence only. So far as one can know, the individual members of the Commission, so far as they have spoken, are still of the same opinion.
The remaining controversial sections of this Bill also deal with offences of driving or attempting to drive while under the influence of alcohol so as to impair the driver's judgment. It is sought to make it an offence for such a person not to submit to a blood or urine test. It is sought to make that an offence punishable by the same penalties as the actual offence of drunken driving, to use the expression broadly. I think it is going too far to make it an offence for a person to say: "I refuse to submit to a urine or blood test". I say it is the right of an individual to refuse to submit himself to that test.
He may have various reasons for doing so. He may be doing it on principle, on the ground that he is not drunk. He may be doing it for personal reasons. It is wrong to impose on the accused person an absolute obligation to submit to a blood or urine test. I know that the section of the Bill says that it is not an offence to refuse to submit to a blood test, if the person has a reasonable and substantial cause for refusing. The onus is on the person concerned to establish that substantial cause. It is wrong in principle to impose such a heavy obligation on a motorist.
I am prepared to go a bit of the way with the Minister. I am prepared, I think, to give the Minister sufficient powers to enable him to ensure that if a person does not submit to a blood or urine test he will find himself in difficulties. I believe it should be in order for the prosecution to tender in evidence the fact that the accused person refused to submit to a blood or urine test. That should be acceptable evidence. I will go further with the Minister. I say it should be evidence sufficient to establish a prima facie case of impairment on the part of the accused person, and that an accused person who has refused to submit himself to a blood or urine test shall have shifted on to him the onus of satisfying the courts that at the material time his judgment was not impaired due to the consumption of alcohol and that he was capable of driving within the meaning of the Act. I say with all confidence that that is going as far as this House should be asked to go at this stage. The Minister will have sufficient power to discourage drunken driving and to detect people who take the risk of driving with considerable quantities of alcohol in their blood.
There are only a few points of principle in this Bill proper for discussion on Second Reading. First, there is the suggestion that we should have a new Bill embodying the 1961 Act and this Bill. Then there is this awful business of the regulations. Everything is done by regulation. I dealt with that. There is the unsound proposal to confer on the Minister the right to restore driving licences. That is a matter of principle to which we intend objecting very strongly. There is the proposal to have people's eyes tested by people who are in no way qualified to test them. Then there is this Part V dealing with serious offences of driving while under the influence of alcohol.
My proposals are, to repeat them, that the given percentage of alcohol in a person's blood should be prima facie evidence only, shifting the onus from the prosecution to the accused to prove that he is capable. Then there is the section making it an offence to refuse to submit to the tests. I am against these provisions on principle, and in substitution for them, I am prepared to give the Minister a section which will make it prima facie evidence if an accused person refuses to submit to the tests. Once that evidence is given, the accused person will have to prove that he was not impaired, that he was sober within the meaning of the section.
We propose to agree to the Second Reading of this Bill, but I do strongly urge on the Minister to consider seriously the points I have made on behalf of this Party in all good faith and in a serious effort to go far enough with the Minister to give him a useful measure that will serve its purpose and do the work he wants it to do, but at the same time, will respect the code of criminal law which has worked so well here since the foundation of the State, will respect the liberty of the individual.
I do not want to be misunderstood. I am not saying that if the Minister could not attain his desired objectives in this Bill without the sections to which I object he should not have it, but I am convinced that in order to make the roads safe, in order to put the drunken driver off the road, it is not necessary that the Minister should go to the Continent of Europe and come back with the sections which he has put into this Bill. There are many sections in the Bill which will need attention in one way or another on Committee Stage. I propose to reserve any further remarks in detail on the subject until that Stage.