Road Traffic Bill, 1966: Committee Stage (Resumed).

Debate resumed on the following amendment:
Before section 28 to insert a new section as follows:
"Section 49 of the Principal Act is hereby amended by the insertion after ‘the vehicle' in subsection (1) of the following: ‘and if there is present in his body a quantity of alcohol such that within 3 hours after so driving or attempting to drive the concentration of alcohol in his blood will exceed a concentration of 125 milligrammes of alcohol per 100 millilitres of blood he shall be deemed until the contrary is proved to be incapable of having proper control of the vehicle'."

(Cavan): When I reported progress, I stated that I proposed to conclude my remarks on this amendment by referring again to the Commission on Driving While Under the influence of Drink or a Drug. Deputy Booth stated that the members of this Commission did not have any practical experience of the difficulties involved in the offence with which we are dealing under this section —the offence of driving a mechanically propelled vehicle while impaired. I want to put it on record that this Commission was composed of a number of very eminent and responsible people—the President of the High Court, the State Pathologist, the President of the Safety First Association, a number of medical practitioners, a superintendent of the Garda Síochána, district justices and civil servants.

This Commission studied the whole problem very carefully from the date on which it was set up, 14th September, 1961, until the date on which it submitted its report, 15th May, 1963. During that period study groups from the Commission visited a number of continental countries where they contacted members of the police forces, members of the judiciary, chemists and others involved in this problem in those countries. In addition, a study group visited London and attended the Third International Conference on Alcohol and Road Traffic. Having done that, they came back and submitted a report to the Minister's predecessor which recommends the amendment which I put down to this section, and which opposes the section which is being insisted upon by the Minister. Therefore, I say it is very difficult to understand the Minister's attitude in refusing point blank to accept the the recommendations of this Commission.

I began my argument in favour of my amendment by referring to this Report and I wish to conclude by again putting on record that the Report to which I refer supports my argument and does not support the Minister's proposal as contained in the section. That, coupled with the discussion we have had over several hours on this amendment, should, I think, convince the Minister that, even at this stage, or certainly between now and the Report Stage of this Bill, he should reconsider the matter. I think I am not unfair when I say it appears to me that I am not alone in being uncomfortable about the section as drafted. I think there are Members on all sides of the House who believe that the section goes too far, is unnecessary and that as drafted, it will create serious difficulties for law-abiding, unimpaired motorists.

I wonder what would be the position if on an amendment such as this the Minister were to have a free vote of the House. Practically all that can be said has been said on this amendment. The strongest argument in its favour is the Report of the Commission. It cannot be said that the members of the Commission had anything in mind other than a genuine and sincere effort to rid the roads of the motorists whose judgment is impaired due to the consumption of alcohol while at the same time preserving the rights and liberties of the individual and preserving the code of criminal law as it has been operated since the foundation of the State.

When Deputy Fitzpartick said he was concluding and that he was provoked, I undertook not to provoke him into concluding again. By that I intended to indicate that I would not speak again. I hope that in replying briefly to what he has just said, I shall not unnecessarily prolong the discussion on this section and this amendment. I dealt with this question of the Commission's recommendation on this matter both on the last occasion when we discussed the section and in the debate on Second Reading. In fact, in my introductory remarks on Second Reading. I quoted this section from the Commission's Report and I think I should do so again. The Commission said:

If any legislative changes are to be really successful and effective they must, in our view, have the support of the bulk of public opinion. In countries where a certain blood-alcohol level has been prescribed as conclusive evidence of critical impairment, public opinion has, we believe, been conditioned, perhaps gradually, to accept the position. Here the whole procedure of taking and analysing blood samples and giving evidence of blood-alcohol levels in prosecutions would constitute an innovation in criminal procedure with which everyone concerned might take some considerable time to become familiar, as well as an interference with personal rights which public opinion might be still slower to accept as necessary or desirable. It may be that, as a result of experience, public opinion would in the course of time be conditioned to accept and approve a prescribed level which would be conclusive evidence of impairment. We doubt very much if the education of opinion on the matter has yet reached that stage.

That was in 1963. I went on, and I quote from my own speech in introducing the Second Reading of the Bill:

I fully appreciate that the support of the bulk of public opinion is extremely desirable for legislation of the kind now proposed. There have, however, been developments since the Commission's Report. World opinion has moved sharply against the drinking driver and the further studies undertaken since the report have confirmed very forcefully the importance of an objective test. The increase in serious road accidents here has undoubtedly strengthened public opinion, and indeed I wonder if the Commission under-estimated the extent to which the public even in 1963 were prepared to support legislation designed to deal with this problem.

Nobody can be under any illusion as to the concern of the public as regards the drinking driver or as to the intense desire of the vast majority of the public to have this danger eliminated from the roads. I am perfectly convinced that the public are now in 1967, even if they were not in 1963, prepared to have this objective test provided for in order to go as far as possible in eliminating this danger. I can only repeat that here the real division between us in on whether this objective test should be established. If this is to be onlyprima facie evidence, if the scientific establishment of this level of blood-alcohol content is to be prima facie evidence, what is it to be prima facie evidence of?

It has been scientifically established that a blood-alcohol content of this level in practically all, if not in all cases, results in the serious impairing of a person's ability to drive. I admit it has not been established in the case of every individual in the world, and I do not think it would be possible to establish that, but it has been established that in the vast majority of cases, and very possibly in all cases, this blood-alcohol content results in serious impairment of a person's ability to drive. I am asking the House to make it an offence for a person to raise his blood-alcohol content to this level and proceed to drive. That is the difference between us. There is only one way of establishing blood-alcohol content and that is by scientific test. It is impossible for a person to prove by any other type of evidence that his blood-alcohol content was not at this level. That is the offence I am asking the House to create.

It may be possible for him to prove to the satisfaction of an individual judge that he was not unfit to drive in so far as that particular individual trying the case understands what would establish fitness or unfitness to drive, but it is in fact impossible for him to disprove that he had this blood-alcohol content. I am convinced on the basis of scientific evidence available that blood-alcohol content of this level constitutes in practically all cases impairment of the ability to drive. I am asking the House to provide that people who impair their driving ability to that extent will not be allowed to drive legally on our roads. Those are the facts of the situation.

(Cavan): I am afraid I will have to say a little more.

Did I provoke you?

(Cavan): Yes. The Minister has stated that since the Commission reported further investigations and further study have shown the necessity for the measure which he is now introducing. All I can say is he has not made the result of this study or research available to the House. We know that since 1961 we have not heard any statistics regarding the relationship of driving while under the influence of drink to road accidents. That is a positive fact. The statistics ceased in 1961.

I do not think it could be established without some objective test, which up to now was not available.

(Cavan): The statistics were kept up to 1961.

They meant nothing.

They were not based on a scientific test.

(Cavan): They were based on evidence that people who were involved in accidents had drink taken and were prosecuted. Those statistics, for what they were worth, were not kept.

The next thing I want to say is that the Minister seemed to infer that the Commission, if they were reporting in 1966 or 1967, would have reported differently. I want to say—I have to put this on the record again—that the only evidence I have is a statement made in public by Father Denis P. Kennedy, SJ, President of the Safety First Association of Ireland and a person whose name appears third on the list of the Commission Report. It is quite clear at the present time that Father Kennedy, who is President of the Safety First Association of Ireland—I think that is mighty important—still believes, not withstanding the lapse of time, that the recommendation of the Report is the correct recommendation and the correct way of dealing with this problem. He cannot be regarded as irresponsible, as reckless, and certainly cannot be regarded as the advocate or the friend of the reckless or drunken driver.

The last thing that the Minister said is that scientific tests have proved that a concentration of 125 milligrammes of alcohol per 100 millilitres of blood is evidence that a person is unfit to drive and that his judgment is impaired. I will stake my reputation on saying that the scientific test to which the Minister refers is no more and no less thanprima facie rebuttal evidence that such a person is impaired or unfit to drive. That is what my amendment seeks.

I agree. As I said all along, that is the difference.

(Cavan): If we agree on that, there is very little difference between us.

There is a fundamental difference.

(Cavan): The scientific test proves only that the person is unfit to drive.

I did not say I agreed with what the Deputy said. I agree that is the difference.

(Cavan): I wish to repeat that it is clear that the scientific test to which the Minister refers provides nothing more and nothing less, and does not purport to provide anything more, than evidence of impairment which, admittedly, can be rebutted. I am surprised at Deputy Booth agreeing with the Minister that my amendment would more or less restore the law to its present state. That is simply not so. I do not wish to repeat the arguments I made on that earlier on and which I think clearly point out the very big difference between the law as it now is and the law as it would be if my amendment were accepted. I do not want to say anything more on this now.

Is the Deputy withdrawing his amendment?

(Cavan): I will withdraw it on this Stage, in the hope that the Minister will further consider it. If he does not, I will put it down again on Report Stage.

Amendment, by leave, withdrawn.
Amendment 13a not moved.
SECTION 28.
Question proposed: "That section 28 stand part of the Bill."

(Cavan): I would like to say this very briefly on the section. I think what I have to say might not have been relevant or in order on the amendment. Section 28 proposes to create this new offence, that is, the offence of driving with a concentration of 125 milligrammes of alcohol per 100 millilitres of blood. That is a new offence but it is an offence which will carry exactly the same penalty as the offence under section 49 of the Road Traffic Act, 1961, of drunken driving. It will carry the penalty of a substantial fine, imprisonment, if it is thought necessary, and consequential disqualification for 12 months.

Let us take the case Deputy Briscoe mentioned this morning of a man who is charged with having this concentration of alcohol in his blood and who is brought before the court by a garda on that offence. The garda gives evidence that, in his opinion, notwithstanding this concentration, the man was perfectly fit to drive a car. He still must be convicted and he still must be fined. More important, he still must lose his licence for 12 months. That is going to an altogether unnecessary extreme. If the Minister intends to use his majority to put this section through the House, I sincerely hope he will give a discretion to the judiciary in certain cases not to disqualify a driver.

That is an amendment I was thinking of for Report Stage, an amendment which would enable the justice, if he were satisfied that, notwithstanding the concentration mentioned, the accused person was not impaired, it should then not be obligatory on him to suspend the licence and this disqualification would not be consequential.

I would like to add something to the point raised by Deputy Fitzpatrick. The attention of the House should be directed to this manifest inequality in the mandatory character of the penalty and the withdrawal of the licence. I have had in my experience in public life a not inconsiderable number of cases in which a man's licence to drive was withdrawn, which meant acute temporary hardship when a man had no other means of earning his livelihood, than driving a vehicle as an employee of a transport company or carrying on his normal avocation, part of which was driving motor vehicles. On the other hand, we have met persons who have been disqualified from driving, to whom the disqualification meant no more than the employment of a chauffeur for the period of disqualification. It involved them in no inconvenience, in nothing other than having this man in constant attendance, but no more than that.

It has always seemed to me that we did not have regard to that disparity of circumstances when we made this penalty of disqualification mandatory. I have often wondered if a district justice or a judge becomes satisfied in the course of proceedings that he is dealing with a dipsomaniac who will not reform. He may say: "I know it will be a great hardship on you in your circumstances to withdraw your licence; I know it will mean substantially depriving you of your means of livelihood; but your record and condition is such that you are not a suitable person to live with a licence".

I cannot remember a single case in which this House has made a penalty mandatory and withdrawn the discretion from the presiding judge which has not resulted in isolated cases of acute hardship which were certainly never present to us when the mandatory penalty was prescribed. It is now obvious that we are extending the scope of offences which will give rise to this mandatory penalty from the case of the drunken driver to the incapable driver. We are transferring substantially the obligation on to the driver to rebut this so-called scientific proof of his incapacity. I wonder do Deputies want to withhold from the district justice or the judge a discretion as to whether in a given case incapacity as distinct from drunkenness has been proved within the terms of this Bill, and whether he should withdraw the driving licence as well as impose such other penalties as are required.

I suggest that once we have diminished statutory drunkenness and included incapacity as defined in this Bill, it becomes doubly easy to return to the district justice's discretion to determine the question as to whether in a given case disqualification from driving is the appropriate penalty. In fact, there may not be many of those cases to argue against our providing that, when the only provision we make is leaving it within the discretion of the judge who is actually hearing the case to decide what, in all the circumstances, it is just to do. It is not an equal penalty to prescribe in the Bill for this new offence of statutory incapacity to say that everybody convicted under this section must lose his licence. It is a different sentence to withhold the licence of a person whose livelihood depended on it. It is no more than an inconvenience to such person as can afford to pay somebody else to drive. That is something which should not be absent from the mind of the Minister when he considers the case put by Deputy Fitzpatrick in this connection.

I think we have also dealt with this question of the same penalty being proposed for this new offence as is there already for the person who is convicted of an offence under the law as it exists. We are discussing whether this is a lesser offence. I am unable to agree that it is a lesser offence. It is at least equally serious and likely to have at least as serious consequences.

With regard to the theoretical point made by Deputy Briscoe, and again referred to by Deputy Fitzpatrick about a garda being compelled to prosecute a person whom he believes to be fit to drive, I think the normal person will agree that a garda who is so sure that a person is fit to drive will not go to the extent of bringing such a person to the station and conducting these tests which may establish that he is not fit to drive. This is a scientific test and in any case I would believe it to be a more reliable test than the opinion that an individual garda might form as to the person's fitness.

I fully agree with Deputy Dillon that suspension of a person's driving licence very often involves severe hardship. The possession of a driving licence is often a necessary thing to enable a person to earn his livelihood. This hardship often arises. I agree it is a severe hardship but I cannot agree that it is disproportionate to the gravity of the offence. You cannot utilise that fact, that the suspension of a driving licence may make it impossible for a person to earn his livelihood at his normal business, to permit people to earn their livelihood by unnecessarily endangering other people. The penalty for the offence of driving under the influence of intoxicating liquor is there as it exists at present. But we all know that even the existence of this penalty—which can be very severe in certain cases—has not discouraged many people from committing the existing crime.

I believe that in order to make it inadvisable for people to impair their driving ability in this way it is necessary that there should be a severe penalty, not primarily from the point of view of imposing this hardship on people but from the point of view of protecting the public and discouraging them from taking this risk, thus, as I say, protecting the public from people who will do this and would be more likely to take the chance if the penalty of the automatic suspension of driving licences did not apply. It is generally accepted that the suspension of the driving licence is appropriate to the offence, as it obtains under existing law. I maintain that this new offence of driving while the ability to do so safely is impaired is of at least an equally serious nature and, therefore, the penalty should be the same.

Surely the Minister is overlooking the essential element in this whole problem. Surely Deputies are not dead to the fact that one of the legitimate provisions of the Constitution is that all men are equal before the law, that there should be the same penalty for everybody if they infringe the law. Therefore, we ought to be very careful to ensure that the judiciary will measure the penalty in each case so as to maintain substantial equality between all. That, then, is the ideal towards which we aim but, being practical men and women, we know that to attain to an absolute ideal is often simply impracticable. Therefore, in the other Road Traffic Acts we said that if a man is convicted of drunken driving, as defined, his licence shall be taken from him and it is mandatory that it shall be. I think we went perhaps further than we ought to have gone in doing that. There is not one of us who has not had cases brought to his attention.

But no principle was introduced by that which was not there for hundreds of years.

The mandatory?

I think that in the vast majority of mandatory cases they operate for hardship.

When a man was convicted of murder, the penalty was mandatory.

For a long time in England there was no Court of Criminal Appeal, but there was always the prerogative.

No, and I do not think there ought to be a prerogative. We deliberately, consciously, and resolutely withdrew from the Minister for Justice the prerogative to restore a licence but we left the right to go to the circuit court. My suggestion to the Deputy is this. We ought to go as near as we can to refrain from mandatory penalties in that they do not bear equally on those on whom they fall. Say, for drunken driving, you lose your licence. To most individuals in this House that simply means getting their sons to drive them or hiring a chauffeur for the period but a working man who earns his living is out of a job. He has to go home to tell the wife he cannot earn unless he can get work as an unskilled labourer, which he may not be able physically to do.

All I am suggesting is—now that we are going a further step to create what Deputy Fitzpatrick described as a statutory offence of incapacity—should we not say, in respect of that, it is safe to restore to the courts the discretion which the courts normally have to prescribe such penalty as they think appropriate within the overall limits fixed by this Oireachtas, by statue? This is the kind of thing I have seen happen so often in this House and I believe Deputy de Valera is long enough here to share my experience. We take a step in one particular Bill to deal with one particular evil and we solemnly go on record as saying: "We recognise this to be a serious breach of an important fundamental principle but the evil is so great we think ourselves justified in doing it". All that is in the records of Dáil Éireann, in volumes 20 years ago, if anyone would look them up. But 20 years later you find yourself confronted with the argument: "But is that not there already; what are we trying to do now?" and slowly we slip down the slippery slope, gradually losing our hold of the fundamentals until we do not know where we are going. All I am saying to the Minister is that with regard to drunken driving, we accept it as an exception to the general rule and we prescribe a mandatory penalty. We have in our own experience, even in that extreme case of drunken driving, seen what seem to be cases of grave hardship. Two men are put up, one after another, in the district court for precisely the same offence. One loses his entire livelihood, the next man experiences a minor inconvenience.

We are asked in this new statutory offence which rests on what we are told and are expected to believe is scientific truth—I do not accept the infallibility of these scientific tests— to extend the same principle as we thought it right to extend to the ordinary offence, which we could test by the evidence of rational men as to whether a man was so drunk as to be unfit to drive a car. Remember, we are not asking the House to make the maximum penalties which the court may in its discretion prescribe if a person is convicted of a statutory offence. What I am suggesting to the Minister is that in respect of this new statutory offence we should simply give back to the courts the discretion we took from them in the case of demonstrable drunken driving, and it is good for the whole legal system that we should be on record as saying: "Though we did concede the desirability of a mandatory penalty in regard to demonstrable drunken driving when we created the new statutory offence, we drew back that much; we restored to the court the discretion we took from them in the earlier Road Traffic Acts when we were dealing with the offence of drunken driving."

Mark you, I think the Minister is wrong when he says: "I see no distinction between the quality"—I think what he said was, between the gravity of the new statutory offence that is being created and the offence of drunken driving. There may be no difference in the gravity but there is certainly a difference in the quality. A man who sits into a car blind drunk in the ordinary meaning of the word——

Will be safer than the man with the 125 milligrammes.

——and tries to drive a car manifests something approximating alcoholism. He is a person habitually drunk or it would not occur to him to sit into his car and try to drive while he is drunk. A man can easily commit this statutory offence without ever having been drunk in his life. The net result may be perhaps very similar to the point of view of the man on the road and we must keep the pedestrian on the road constantly in our minds in considering this legislation. I again appeal to the House: Do not let us go off the deep end on this; let us keep fundamental principles in proportion.

There is a difference in quality in this new offence we are creating and it is quite possible for a man to commit the offence we are now creating in this Bill who has never been drunk in his life. Therefore, when the Minister says: "I cannot concede for a moment that the gravity of the new statutory offence is less than the old offence of drunken driving", I want him to concede to me that there is a difference in quality. It is on that distinction in quality that I ask the House to say: "Now we are going to take a step back from the attitude we adoptedvis-à-vis the judiciary in dealing with these offences. We thought it right to leave no distinction where a man drove demonstrably drunk but we think it proper to restore the distinction where the offence is the statutory offence created by this Bill.”

I suggest to the Minister that from the point of view of enforcing new legislation of this kind which demands, for its success, pretty general support from the population as a whole, it will be greatly to his advantage if he meets the Opposition in some of these matters even if he has to come back in six months' time and say: "Well, I allowed the arguments of the Opposition to weigh with me and manifestly the Opposition were mistaken, and I am coming back to the House now and saying the acceptance of your proposals has made the whole scheme fail to work". I do not think any of us will need to hang our heads in shame if that should eventuate. I certainly would not. I would be inclined to say to the Minister: "You are deserving of all praise. You showed due regard for the due process of law and, in your desire to maintain that, you find that in practice you have gone further than you wished to go and, in the light of experience, that we should have asked you to go and we are now prepared with virtual unanimity to agree that the more Draconian procedure was the right one". I do not think, if the Minister meets us in these matters, that will in fact be his experience, but from the point of view of getting general support for reform of this kind, I urge on him that he would not go far wrong if he deliberately made certain concessions, even though he were a bit uneasy about them.

My natural inclination would be to go along with Deputy Dillon but I think he is missing a point of fundamental distinction in this. If he will allow me to say so, I see an outmoded philosophy in the approach to the gravity of a crime behind some of his remarks. The nature of a statutory crime of this nature is not a question of moral responsibility of the individual or the maintenance of equitable balances between members of the community. The crime the Minister has provided for is a new crime, a new provision, to ensure that persons who are a potential danger to the community at large and to individuals who are likely to come in their path will be prevented from driving a motor car in circumstances in which they could do damage. This is something where the interests of the community are present.

On the question of rights, as the Minister says, there is no fundamental right to career around in a motor car to the risk of my neighbour. There is, however, a right on the part of this House, acting for the community, to see that the interests of the rest of the community are protected. We are then down to this fact. Let us hasten to agree with Deputy Dillon on the fallacious approach to scientific tests that can be anything but infallible. I share his scepticism in that regard, perhaps surprisingly to him, but—and here is the "but"—a large amount of experience has shown not only in connection with tests but in connection with commonsense and circumstantially and every other way that if an individual has consumed a certain amount of alcohol, in some cases a trivial amount, in exceptional cases a large amount, it is an undisputed fact that if a significant proportion of alcohol is imbibed of the order of a couple of whiskeys, then the reactions of that human being are affected and particularly affected in exercising the skill necessary in driving a motor car. I do not think even Deputy Dillon would controvert that.

If that is so, the problem of the Minister is how to ensure that a person in that impaired condition will not drive. The question of drunkenness, as the Minister has said, is beside the point. That is a separate thing.

I went further when speaking on the last day and said that it is quite possible that a man who is blind drunk is a lot safer than a man who is impaired at a certain level. Therefore, I completely disagree with Deputy Dillon on his evaluation of the relative gravity——

I am not talking of gravity; I am talking of quality.

That is merely an academic argument in this context. The gravity is what matters. I do not want to hold up the Minister. He must be tired——

To blazes with the Minister being tired.

He has had to repeat,seriatium, for all of us who have not heard him before so I feel he is deserving of that consideration. The point is that we should forget all reference to drunken driving.

Why withdraw the discretion of the court?

Let me come to this. That is something that is not on the face of this section. It may be in section 49 but it is not on the face of the section. Perhaps I would be easy if the Minister saw fit to meet Deputy Dillon, but on the other hand——

Now we see the value of debate.

That is not capitulation. I would be a bit cynical about this, having seen in practice how these things work out. On the question of the crime itself, the situation is perfectly clear. I agree with Deputy Dillon on this. If any mistake is made about this, it is the hedging about the scientific proof. It seems to be implied—maybe I am wrong— that while scientific proof would be theoretically available, it would, in fact, be much more doubtful and that, therefore, scientific proof in this type of legislation should not be attempted. Am I paraphrasing the Deputy properly?

I view the whole procedure with considerable apprehension.

I want to dispose of that argument with this reply. Having stated the only criterion, namely, the alcohol level, that seems to be feasible to capture this crime, it seems to me that any arbitrary test, whether it is a reliable test or a scientific test—and I share the Deputy's scepticism—is still sufficient for the purposes of this Bill, and it is on an average worked out that it is to be judged and not on its specific accuracy in a particular case.

(Cavan): If I understand Deputy de Valera's argument correctly, I think he said that this new offence deals not with the drunken driver, with which I agree, but with people whose judgment is impaired——

More than their judgment, their skill and capacity to drive.

(Cavan):——whose capacity to drive is impaired and as a result are a potential danger to other users of the road. We are dealing with more than that. In this section we are dealing at worst with a section of people whose judgment may be impaired, whose capacity may be impaired, and at best from the point of view of the general public, with a section of people whose judgment is probably impaired. Even on the Minister's case, he does not say that everyone in whose blood there is a concentration of 125 to 100 is impaired. At most the Minister will say that it is most likely that he is impaired.

When I spoke on the section after the amendment had been disposed of, I made a plea for the type of person who could satisfy a judge or a district justice, on medical evidence, that while he had the offending concentration of alcohol in his blood, his judgment was not impaired. In such a case, the district justice should have discretion and should not be obliged to disqualify such a person from driving.

I should like to take this discussion away from the scientific and the academic, back to the practical. I took the opportunity of discussing this Bill with various groups I met in the past month. The general feeling was that the drunken and incapable driver should be put off the road. Some people did not understand this blood test. They felt that, if it was a help, it should be used, but they all felt there was something unfair in it, particularly to the extent that it was mandatory on the courts to take away a person's driving licence. I would say for all practical purposes it was accepted up to that point.

If I serve any purpose here, it is to represent the views of those people as expressed to me. It was mentioned early this morning that people who may be drunk would not be aware at what stage they exceeded the 125 mgs. It was suggested that the onus should be placed on someone to indicate what amount of alcohol could be taken. I feel that the manufacturing people might take that on, and perhaps some of them would suggest that four pints of their beverage would keep a person five or seven mgs. under that figure.

We have the situation in which people are drinking and sliding into impairment. There can be none of us here who has not on occasion found himself having to advise certain people not to drive their cars home on a particular night. Those people were very drunk, or nearly very drunk, and it was easy to deal with the situation. A person who is in between the 100 to 125 or 130 is not drunk and may appear capable enough. No one may think of advising them. They may go on the road acting with full responsibility, and they may get into some difficulty and find themselves charged with this offence. The point was made this morning that they are not aware of the situation and it would be harsh in those circumstances if a person lost his or her licence. This should be left to the discretion of the court.

Again looking at it from the practical point of view, I am certain that it is most unlikely that any person will be tried for or charged with this offence alone. There will be others tagged on. He will be charged with drunken driving, with careless driving, and with dangerous driving. He will be charged with a whole litany of offences and the court will be given discretion in the matter. If the courts decide this man was not drunk but that his driving was impaired, there should be a situation in which the punishment would be made to fit the crime.

The other big problem I find from my experience of driving on the road is the man with the bicycle without any kind of light, particularly a rear light. I believe statistics will show that a number of people place themselves in danger, and I have no doubt that a number have been killed, just because they had not rear lights on their bicycles. Then, at one stage, are we to make it mandatory on the courts to try such a man and to prescribe that such a man must not be allowed to ride a bicycle? This is the one thing in my experience of driving I dread, particularly when one is approaching an oncoming car. I urge the Minister to give the courts discretion in deciding what the penalty should be under this section.

During the week in theEvening Press—on 22nd May to be exact—there was an article which caught my attention. According to it, West German motorists will have to get drink and drive badges, if the Hanover traffic judge is to have his way. He feels that individuals should be entitled to have their capacity tested to find out to what extent blood-alcohol content will impair their standard and the results should be stamped on their licences.

One of the objections I have to the section is that it is proposing to find an average. We do not know if we are averaging at the best or the worst. I do not believe we can average. I also object to the mandatory suspension of licences. The merits of capital punishment as a deterrent to murder are being considered by enlightened Ministers for Justice throughout the world and they are doing away with capital punishment without any adverse effects. The effects of compulsory suspension of licences are, to say the least, most doubtful. It has not been proved anywhere that the suspension of licences has improved the situation as far as road accidents are concerned. In my view, it lends itself to creating a much worse situation than exists before mandatory suspension comes in. It lends itself to more people taking chances of driving without licence or insurance.

This has been the experience in England. A high number of drivers are known not to be covered by insurance. By trying to do away with the menace of the drunken driver and creating a new offence to make it more and more difficult for a drunken driver to appear on the road, what we are doing in effect is creating what will possibly be a worse situation in which a person, whether drunk or sober, who has an accident, would have no insurance and the other people involved in that accident will not thank the Minister one bit for creating such a situation in which more drivers are on the road without insurance cover.

I suggest again that the Minister should give discretion to the courts. There are degrees of guilt in any offence under existing law or under this proposed new law, and the courts should have discretion. As I pointed out the last day—had I known this would be taken today I would have been here earlier—people could continuously commit offences under this unknown to themselves. They might be perfectly responsible, decent people, no threat to society, but because we decide to build up figures which are not intelligible to everybody, they might find themselves without licences. I object very much to this compulsory suspension and I suggest the Minister should have another look at it.

The Minister says: "Let us retire from all this high theory of science and come down to practical facts." I have had a lot more practical experience than even the learned doctor. If the Minister thinks it strange to hear Deputy de Valera and myself arguing across the floor about the extent to which discretion should be left to the courts, he is mistaken. Our argument is founded on the accumulated commonsense of generations of our people. It is that the general principle ought to be that we in the Oireachtas prescribe what in our well-considered judgment is a crime, that we, in our well-considered judgment, after argument and debate, very often tedious, reach a consensus on the quality of the crime and prescribe the maximum penalty. For Deputy Gibbons's benefit, I want to lay emphasis on "maximum penalty." Then we hand the matter over to an absolutely independent judiciary, who are absolutely guaranteed against interference by us, for determination of the merits of the particular facts of the particular case brought before them as to what penalty should be imposed if the independent judicial tribunal is satisfied a crime has been committed.

That is the general principle. That principle is not founded on some daft scientific theory but on the experience of a free people trying to legislate for the common good in a way that will be consistent with the fundamental rights of the individual. I speak not only from personal experience but from vicarious experience going back over hundreds of years—my father was a Member of the House of Commons and my grandfather was a Member of the House of Commons. A hundred years ago it was unthinkable to prescribe a mandatory penalty and the whole public conscience would have been outraged if a mandatory penalty were prescribed, even for the most awful crime of all. It was always kept in reserve as a royal prerogative to temper a mandatory penalty.

Then there gradually began to come in—I think during the First World War—on the theory that a person was committing an offence against the safety of the State if he consumed too much sugar or offended against the Defence of the Realm legislation, this whole concept of mandatory penalty and it was accepted as a kind of concomitant, the kind of liability the individual citizen should be made to bear, bearing in mind that all the other citizens were out in the trenches fighting the war.

Because people were carried away from the common experience of wisdom in these matters by the appeal to the supreme good of the community, this principle of mandatory penalty came in. Deputy Gibbons and I, and Deputy Lemass and Deputy Fitzpatrick have seen in our personal experiences cases where we felt that the withdrawal of all discretion from the trial judge was not doing equal justice as between one offender and another. It was exactly the same as convicting two men in the same court of the same offence and finding one man £10,000 and the other man 1/-. If any court in the country did that tomorrow, there would be an uproar. But if you bring in a lorry driver and convict him of drunken driving and if you bring in a millionaire and convict him of drunken driving a Rolls Royce, in effect you fine one a penny and the other his whole livelihood.

We have agreed, with great reluctance on my part, in earlier Road Traffic Bills, to say in respect of the crime of drunken driving we are prepared to go to that length of these inequitable penalties. Nobody ought to drive a motor vehicle when it is demonstrably obvious he is drunk. If he has not sufficient intellectual capacity left to him to restrain himself, his friends ought, if necessary, restrain him by force and put him out of the car. We are now creating a new offence. I want to impress this on Deputy de Valera, because the Minister, I am afraid, has tried to close his mind against me. I am not saying that the new offence is one of less gravity, but it is of a different quality.

Does that make any difference?

The justification for the mandatory penalty is materially altered.

For the simple reason, as Deputy Gibbons has said and I have said, that a man can commit this offence perfectly easily entirely innocently. Remember, the person has not to be involved in an accident. He has not to hit a tree: he has not to do anything overt in order to have himself stopped.

He could not commit it if he did not take a drink.

He may be perfectly fit to drive and still commit this statutory offence.

The statutory offence is a level.

I am not contesting that. All I am saying is that the quality of the offence is different. All I am asking is, not for a reduction in the penalties prescribed, but in the line of the quality of the offence to restore to the court what we have taken away from it. This was beautifully illustrated on Monday on Telefís Éireann. Some colleague of Deputy Gibbons forgot his lessons in medicine. He was summoned to a Garda station to test a man alleged to be drunk. He asked him not to say but to spell "British Constitution." The fellow made the best fist he could of spelling "British Constitution" but he did not make a very good fist of it. This was advanced in court as proof that he was drunk. That dark-haired fellow who conducts the programme on Telefís Éireann went out on to the streets of Dublin and stopped the first nine people he met. Three of them spelled "British Constitution" correctly; three of them spelt it wrongly; and three of them said: "There is a catch in this; I am not going to try." Of course, the man who is blind drunk could not say "British Constitution." His tongue would get caught up in the poly-syllabic word.

"Polysyllabic" might be a better test itself.

It might be too difficult. The man who commits this new statutory offence might well find himself able to say "British Constitution", or to spell it, or to sing an aria from an opera, or to do anything else he is asked. We are creating an entirely new statutory offence and I think the unique quality about it is that, wholly unconsciously, a man may be committing an offence who never was drunk in his life and who would have a strong moral revulsion from ever admitting to the fact that he could contemplate getting so drunk in the ordinary sense of the word as to be guilty of this crime. I am only asking that in that context, not that we mitigate the penalty, not that we reduce the penalty, but that we restore to the judiciary the discretion we took from them when dealing with the grosser offence of driving while demonstrably, manifestly, in the ordinary sense, drunk.

Now, I fully appreciate the difficulties of the Minister for Local Government. But I do urge on him that it is not good policy in legislation of this kind simply to dig your heels in and to say——

Would the Deputy leave it mandatory as heretofore for the offence of drunken driving?

With profound reluctance.

That would be illogical.

It is not in the wind the Deputy got it. How often have I said to distinguished persons in this country——

He does not go back to his grandfather. He does not draw on the experience of 100 years.

I have no comment to make on that intervention of the Minister for Local Government. I have often said to distinguished people in this country that the conduct of men is not invariably controlled by logic. If everybody were reasonable, this would be a very much happier place than, in fact, it is. But we are not perfect. Human nature is not perfect, and the whole purpose of Parliament is to recognise that the rules of logic are not inflexible in dealing with our fellow men. If everything could be worked according to logic, this House could be dispensed with. We could install a computer, feed the facts into it and get law out at the other end.

Maybe we are getting into it?

We are getting to that stage, and I hope Deputy de Valera and I, from our opposite sides of the House, will combine to call a halt to that tendency. Yet, from his lips I hear the rebuke that it would not be logical. Of course, it would not be logical. If I commit a venial sin today, must I, for the sake of being logical, commit a mortal sin tomorrow? Am I not entitled to say that, having trespassed once, I am now resolved not to trespass any more?

I admit that in the previous Road Traffic Acts for the grosser offence we did trespass on this fundamental principle of discretion in the judiciary. I am now putting the case to this House that we are creating a new offence, an offence unknown in our law heretofore, an offence with the unique quality that the most conscientious citizen of this State could be guilty of without being aware of it, and that in those circumstances we ought to pull back and say, without regard to what we did in previous Road Traffic Acts, that here we call a definite halt and declare that in the circumstances of such an offence, it is essential for the protection of the humblest as well as the most powerful in the land, that the independent judiciary should be permitted to function again. That is a case I believe Deputy de Valera agrees with but he does not think it is expedient on this occasion to add to his reputation as the traditional sore thumb from the Government back benches. If there is any rebuke on the grounds of honesty, I direct it to Deputy de Valera for his failure to speak.

Before this becomes a personal issue between Deputy de Valera and Deputy Dillon, I should like to say that I think Deputy Dillon is getting away from the basic fact of section 28, which is that this is a new offence on a purely scientific level. It is not a question which we can equate with drunkenness simply because, I think correctly, the Minister has decided that the offence of carrying a quantity of alcohol in the blood is at least as serious as that of what we now know as drunken driving.

I do not accept for a moment Deputy Dillon's suggestion that drunken driving is a gross offence, whereas the offence under section 28 is something slightly more respectable. I feel very strongly that a person who is mildly inebriated may be far more dangerous than one who is grossly drunk because it is accepted that one of the first effects of imbibing alcohol is that one gets a feeling of well-being and a feeling of being much more competent than before. Even Deputy Lemass in an intervention last week said that in certain circumstances he would regard it as quite a good thing to have a large whiskey before driving. A large whiskey before driving could easily give a driver a sense of elation and false confidence which would make him an unholy menace on the road, without his being drunk in any sense of the word, but simply because he overrates his own ability at that moment. Alcohol does effect the self-critical qualities which we are supposed to have.

I cannot see how we can have any question of the equality of the gravity of the offence arising under this section. Either the accused has that percentage of alcohol in his blood or he has not. We have got to stick to this and, if we give a discretion to the court, while I agree with Deputy Dillon that it is unthinkable that one court could give two very different sentences in very similar cases, there is always a possibility that different courts in different parts of the country may interpret any discretion differently. One cannot have complete uniformity in that way and that can lead to injustice or certainly to a blow against overall equity. Once we accept that this offence is purely the offence of having so much alcohol in the blood, no question of discretion then arises.

On the question of penalty?

On the question of penalty.

Now, Deputy de Valera, do you travel that far—no question of discretion about it? —or where are you landing?

Deputy de Valera and and Deputy Dillon can argue this out between themselves. I cannot see how there can be. You make a specific statutory offence. Once you have broken the law, you have broken it. You can bring all sorts of questions of discretion in in other things but not in this one where it is purely a breach of a statutory requirement. In the case of the customs regulations, you either comply with them or you break them; you either smuggle or you do not smuggle. In this case you either consume sufficient alcohol to raise the alcohol content of the blood over the limit or you do not. It is just as easy as that.

Deputy de Valera's wig is curling beside you.

Any effort here to say that we are creating a fairly respectable offence as compared with the gross offence of drunken driving would do a great disservice to the whole question of road safety. This is exactly as serious as drunken driving and in many cases it is more serious because a person is liable to drive faster in an elated condition than in a grossly drunken condition. In a grossly drunken condition he would probably hit the wall before he got up any speed.

This is a case where I support the Minister absolutely. I quite see with Deputy Dillon that it might be a very severe blow to, say, a lorry driver that he should lose his employment over a period by having his licence withdrawn. At the same time, a lorry driver should not be drinking while he is on duty and while he is off duty he should take reasonable precautions not to imperil his own livelihood. You do not have to go that far for a drink. You do not have to drive to a pub for a drink. There are very few people who cannot walk the necessary distance to get all the drink they want. If a man goes out and has a few drinks and insists on taking his car with him and then puts the community in peril of their lives by reason of his over-consumption of alcohol he has nobody to blame but himself if he and his family suffer by reason of his losing his job. I know it is a hard thing to say but I think it should be said.

I quite appreciate also that there may be differences of circumstances. It may be possible for a man of ample means who has lost his licence to employ a driver. At the same time, that man should be put off the road and the blow to his self-esteem will hurt very badly. I have had one experience of reporting a case of dangerous driving which resulted in the driver being put off the road. I know that that hurt him very much more than the £50 fine which was imposed at the same time. It would be a blow to any of us if we had to face our friends and say: "I am not allowed to drive." It would be a fearful blow to our self-esteem.

I do not think this is going to come as a surprise to anyone. It is up to us to make sure that it does not. Everyone in public life must broadcast this information at every conceivable opportunity: the Government, in the name of the community, are going to act strictly and firmly to stop this question of driving when one's judgment is impaired in any way. None of us would be happy, when cold stone sober, getting into a car being driven by somebody who had recently consumed a number of drinks. We would not be happy if we thought Aer Lingus pilots were being allowed to take off with us in the plane if they had alcohol in their system. We have tremendous confidence knowing that an Aer Lingus pilot or, in fact, the pilot of any responsible airline, or the driver of any responsible bus company, will not be allowed to take charge of a plane or a bus if his judgment is impaired in any way. But the driver of a private car can do every bit as much damage to human life and limb in a very short time. He may not be able to knock off 35 people, but there have been cases of very serious accidents which have involved well over the dozen, caused by people who made an error of judgment due to their lack of capacity to drive.

I would stick with the Minister absolutely on this. I know it is going to hurt people but I am afraid there is no alternative. However, I do say again there is no necessity for anyone who has to take a car on the road to take drink before driving. Deputies may say it will spoil the evening, but that is not point at issue. Are you going to kill somebody or kill yourself? The casualty figures are far too frightening to allow any discretion in this matter. Let us be consistent. Let us be resolute and let us make it absolutely clear to people driving that they drive at peril of losing their licence, at the very least, if they are found to have an alcohol content over the prescribed limit, which, I agree with the Minister, is, if anything, on the high side. In fact, it is quite obviously on the high side.

(Cavan): It has been brought home to me forcibly in the past hour or so that if one repeats a thing often enough, whether it is accurate or not, it will be ultimately believed. It is now being stated here over and over again that the new offence under section 28 is not a lesser offence than the offence under section 49 of the 1961 Act, and I want to go on record now as saying: “Of course it is a lesser offence,” and that is not being inconsistent.

Why is it?

The last time I said the Deputy said that, he denied it.

(Cavan): I shall come to that. What I did say earlier was that the offence of driving when obviously drunk is not a more serious offence than driving while impaired, and I stand over that. What I say is that the new statutory offence which we are creating in section 28 is a lesser offence than the offence created by section 49, and I shall prove that to the House.

The Deputy cannot have it both ways.

(Cavan): I can. I shall prove it. The offence under section 49 (1) of the Road Traffic Act, 1961 is that:

A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle.

That is that offence, but the offence we have here is of driving a vehicle while there is present in one's body a concentration of alcohol in excess of 125 milligrammes per 100 millilitres of blood. It is common case that many people——

(Cavan): Or some people.

No—possibly.

(Cavan): Not possibly; it is much stronger than that. Some people can have that concentration of alcohol in their blood and may not be impaired. I think that must be admitted.

Some people may. That is as far as the Deputy can go.

(Cavan): The Commission has gone further, and the Minister has gone further than that. I am saying that it is obvious, therefore, that this may be a lesser offence and that discretion should be given to the district justice to treat it as a lesser offence.

I must criticise, when speaking on the section, the method of introducing what the Minister has now called a new offence, because we simply introduce a new offence of a different type by adding on to section 49 of the 1961 Act, which is perfectly clear, the words "or while there is present in his body a quantity of alcohol such that, within three hours after so driving or attempting to drive, the concentration of alcohol in his blood will exceed a concentration of 125 milligrammes of alcohol per 100 millilitres of blood". If this new offence had to be created, it should have been created by a completely new section and discretion of the type for which I have been asking should be given to the district justice; if the justice were satisfied that, notwithstanding the concentration of alcohol complained of, the man was fit to drive, he should not be punished in the same way as the statutory drunk under section 49 (1).

That is why I say we are dealing here with what, at worst, can be a lesser offence than the statutory drunken driving offence under section 49 (1). I have never had brought home to me more forcibly the value of a protracted debate on a matter like this, because it appears that it is almost impossible to say everything that might be said or to get every thought that might be expressed on a matter like this. I am convinced that if the Minister thinks again on this—I shall not even rely on Deputy Dillon's reference to "quality"—he will realise there can be an essentially different kind of offence. Under section 28 a man can be convicted whether he is impaired or not, if he has that concentration.

As I have said already, this whole question of making the punishment fit the crime is essentially a question of what standard we should take, whether we take the standard of hardship on the person who commits the crime or of the injury to the victim of the accident.

The difficulty with some Deputies is, apparently, that while they agree in theory with every possible step being taken to make the roads safe, to deal with road accident problems, they recoil from the consequences of these measures. Deputy Dillon, at the outset, argued that the penalty for a crime should be the same for all, and that is exactly what the section provides, that all justices will impose the suspension rather than that some justices will impose it and some will not.

In regard to this provision for the present offence, which is an offence which cannot be established with the same degree of certainty and uniformity as this proposed additional offence, Deputy Dillon says we should not automatically continue it because it is there already. I agree with that, but I maintain that this new offence is of such gravity that it is required in the public interest that a person who commits the offence should be effectively prohibited from doing it again for a specified period. It may be severe on the individual who breaks the law, but the important thing is to protect the public. This sanction against the wrongdoer is necessary in order to discourage this type of action.

I do not think anybody can dispute the fact that the public demand this type of protection and I think it is a reasonable demand. The Oireachtas has already conceded this protection to the public and I am not prepared to take it away from them. This mandatory suspension of a driving licence for the present offence has been in existence for some time and it has not been noticeably effective. Deputy Dillon argues that this new offence is of a different quality from the offence already there under existing law. That may be, but I certainly cannot agree that it is of a less reprehensible quality. In fact, I think it very well may be more reprehensible. The drunken driver, as we understand the term at present, may be incapable of reasoning intelligently at the time he commits the offence of driving his car, or attempting to drive it, while in this condition; but the person who is not drunk, but who has consumed alcohol to the extent specified in this section, will be more keenly aware of the fact that he is at least taking a serious risk of breaking the law. In my opinion, this new offence will certainly not be of a less reprehensible quality than the present one.

I do not think any Deputy, in referring to the severity of the hardship that may be imposed on people by this mandatory suspension of driving licences, adverted to the fact that there is a provision whereby a court, when making a disqualification order, may postpone the operation of the order for a period up to six months, and, in doing this, the court must take into account the personal circumstances of the defendant, including the nature of his employment. This, of course, does not remove the extra hardship involved for some people but it does at least give the court discretion to allow the person concerned to make other arrangements, if it is possible to make them. It gives him reasonable time in which to do that. If it is not possible to make other arrangements in regard to his employment, then the person has to recognise the fact that the crime which he committed, of his own free will, is of such a nature, and this is something he should have realised beforehand, as to involve these consequences, consequences which, in his particular case, necessitate a change of employment to an employment which will not entail his doing something he has proved himself unworthy to do, namely, to drive a vehicle on the public road.

People whose employment necessarily involves them in driving a vehicle have a special responsibility to ensure that they do not render themselves liable to this penalty. It is a very serious thing to drive a vehicle on the public road and people who have to do so in pursuit of their livelihood should appreciate the seriousness of doing it and should appreciate more than others their responsibility to ensure that, when they drive on the public road, they are in a fit condition to do so. I can see no justification for asking me to remove this protection which the public have had up to now, a protection they have had by virtue of the fact that there was an insistent demand from the public that those who committed this crime of driving a vehicle when not in a fit condition to do so should have their permission to drive such a vehicle withdrawn, at least for a certain specified time.

The Minister feels that the penalty which at present exists has not produced results.

It is no deterrent at all.

The Minister has said the mandatory quality of the penalty prescribed for drunken driving has not had the effect desired. I want to make this clear: Deputy Fitzpatrick and I have repeatedly said here today that we regard both the old offence under the 1961 Act and the proposed new offence of driving in an exalted state of mind as very grave offences which, we are agreed, must be brought under control. But there surely is a difference in quality between the offence of getting footless drunk into a car and the offence which one can commit without being aware that one is committing it.

One can admit the Deputy's point and still say——

All I am asking is, if you admit there is that distinction in quality, will you not say that, in the light of that distinction in quality, we ought to do no more than this: not reduce the penalty and not reduce the sanction but restore to the court the duty of determining what the appropriate penalty is?

Which is the higher quality of offence and which is the lower?

I do not relegate them into higher and lower.

Worse and worst?

I do not relegate them into worse and worst.

So they are both the same.

(Cavan): There is a difference between driving a car while impaired and driving a car while not impaired.

(Interruptions.)

Surely this distinction exists: if you are drunk, then you know you are drunk? Suppose a man who has never drunk in his life, a man who recoils morally from the thought of being drunk, is stopped by a garda when driving home and, by the so-called scientific procedure laid down in this Bill, it is established that he has had more than a 125 milligrammes to 100 millilitres of his blood——

I thought we finished with this the last day.

This is very good for the Minister. This discipline is very useful for the Minister, if he is prepared to listen. The man never knew he was committing an offence and does not even at that moment know he is committing an offence——

From the point of view of the safety of the community it does not matter whether he knows or not.

All I am asking is not that the penalty be reduced, not that the sanctions to be invoked against him should be abridged in any way, but that we should restore to the judiciary the discretion to determine on the merits of the special circumstances.

If the Deputy applies that to the existing offence of drunken driving, I could possibly go along with him.

That is because the the Deputy is persuaded of the absolute validity of logic. I am not: I do not think logic matters so much. I think we made a mistake in leaving it to the judiciary in the first instance, but I understand how it came to pass and, when I hear the Minister say that this was done as a result of a general outcry from the public, it brings my mind back to the atmosphere of the 1914-1918 war: every outrage on public liberty is done at the clamorous outcry of an outraged public.

Progress reported; Committee to sit again.
The Dáil adjourned at 5 p.m. until 3 p.m. on Tuesday, 30th May, 1967.