Here we have amendment No. 1 in the name of Deputy McCartan. I observe that amendment No. 2 is related and suggest that amendments Nos. 1 and 2 be discussed together. Is that satisfactory? Agreed.
Criminal Justice (Forensic Evidence) Bill, 1989: [ Seanad ]: Committee Stage.
Section 1 agreed to.
SECTION 2.
I move amendment No. 1:
In page 3, subsection (4), between lines 37 and 38, to insert the following paragraph:
"(c) it is taken in the presence of a solicitor, where such presence has been requested by the detainee and after his right to such a presence has been explained fully by the member requesting or seeking to take the sample.".
Amendment No. 1 would be a very important addition to the Bill. The purpose of the amendment is to establish whenever a sample is to be taken under the provisions of section 2, that the person detained, of whom the sample is required, should have the right to have his or her solicitor present for the purposes of observing the taking of the sample. There should be an onus on the member who is seeking to take a sample to advise the detainee of his or her right to have a solicitor present for that purpose. Let us remind ourselves that the purpose of this legislation is to enable gardaí to take a large number of samples of the body of the detainee who, for the purposes of our law, is a person presumed to be innocent of any crime. The legislation provides that a sample of blood, pubic hair, urine, saliva, hair other than pubic hair, a nail or any material found under a nail, a swab from any part of the body other than a body orifice or genital region, a swab from a body orifice or a genital region, a dental impression, a footprint or similar impression of any part of the person's body other than a part of his hand or mouth. All of these samples can be required of and taken from the person detained.
There is a general principle in our law that no person is obliged to incriminate themselves, and this Bill is, to some degree, an invasion of that position. It has been established that police are entitled to this type of authority in the investigation of other types of crime, particularly in the investigation of road traffic accidents involving drunk drivers. It is important that in the process of seeking the assistance of the suspect detainee in complying with these requirements by a member of the Garda Síochána, the suspect detainee is given the fullest possible protection. The only real effective protection a suspect can hope to have is the advice, presence and independent observation on his or her behalf of the activities of a garda by a solicitor.
The object of this amendment is to ensure that the interests of a suspect are protected, that no untoward excess is used in the taking of the sample and that procedures are complied with as far as possible. This is not to suggest that there will be wholesale abuse of this sort but it is to protect against mistakes which might occur and to protect against the occasional and inevitable rotten apple, a term often used to describe a member of the Garda Síochána who might be inclined to take shortcuts, who might be inclined to doctor or interfere with or set at nought the veracity of the process or a sample being taken. Penalties are provided in the legislation for persons accused of obstructing the officer seeking to make the request or in any way impeding or refusing to comply with the request. Therefore, it is important that there be independent observation of the process being undertaken.
There is a precedent for this type of presence in such cases, particularly when members of the Garda Síochána seek to hold identification parades. It is the practice and the duty of the Garda to advise the person who is required to stand in an identification parade that they are not obliged to do so, but if they do, whatever conclusions are drawn from the parade can and may be used in evidence against them. If the detainee requests a solicitor to be in attendance then the Garda are obliged to notify the solicitor and to wait a reasonable period until he attends.
During the time I worked as a solicitor in this area I attended many identification parades as an observer. I could not interfere with the holding of a parade or the way it was conducted other than to advise the suspect of the position he or she might take in the parade or advise the sergeant in charge that the parade was not a fair representation of the general demeanour, presence or appearance of the suspect. Often a solicitor may request that all the suspects be attired similarly, for example, in shirt or jumpers. On occasion he can ask that the people on the parade swap their clothes so that no reference can be made to any garment a suspect might be wearing before the witness comes in. I did that on one occasion and I remember three of the witnesses watching one pullover as it was moved from person to person — it appears they had been advised at the time that the colour of the pullover might help them to reach a conclusion. Perhaps, coincidentally, the three witnesses watched the pullover as it travelled from one person in the parade to another along the line.
A solicitor has a very important function to play in such cases. He also has a respected function to play in the conduct of these identification parades. When a trial comes before the court and all matters have been properly complied with and no complaint is being made from a defence point of view, obviously this greatly facilitates the prosecution in the presentation of their case. Equally, when questions are raised — this often happens — the solicitor is in a position to instruct counsel on the shortcomings which might have appeared in the way the parade was conducted.
It can be argued that there is a vast difference between an identification parade which involves all the different variables and the taking of a precise bodily sample, for example, a sample of the hair of the suspect, blood and so on — there can be no argument about the size, colour and shape of the sample taken from the suspect; it is put in a bag and taken away — but I do not accept that proposition. This Bill will probably be the hallmark legislation in that it proposes a major commitment and involvement by the investigation authorities — the Garda Síochána — in forensic evidence found on the body of a suspect in crime investigation. This is a new departure and, as was stated on Second Stage, it is a very serious commitment putting the emphasis on the carrying out of police investigations in police stations.
Once this Bill is passed inevitably there will be a far greater emphasis on police stations as a place of criminal investigation. Much of the work will be carried out in police stations and many of the clues looked for there. It is essential that when such investigations directly involve a person or the body of a suspect, he or she is entitled to a minimum amount of protection. I have put down other amendments which deal with the use of videos as an independent record and the need for the proper storage and record of samples once taken, but this is probably the most important protection in that a suspect can opt to have his or her legal adviser present so that on the one hand they can get advice and on the other, they can ensure that the taking of a sample is independently observed.
I ask the Minister to include this amendment as a provision of the law, recognising the hallmark development this legislation represents in the new departure in criminal investigation. I do not believe I am asking too much. This right probably exists in common law, and in constitutional law, as it stands. I believe a suspect would, in general, have the right to ask a solicitor to be summoned to a police station to give advice as to whether he or she is obliged to comply with the provisions of the Act, whether and in what circumstances he or she is obliged to submit to the various different tests set out in the Bill.
It is only a small step more to argue that the solicitor should have the right to remain in the room as an observer on behalf of the suspect while the tests are being taken. There are very important functions which the solicitor can fulfil. He can ensure that excessive force is not engaged in when taking the sample and can ensure that the sample once taken is not tampered with but is put into a sealed container. If further amendments are accepted by the Minister, the sample will be divided in two, one portion being tendered to the suspect or the solicitor for retention for their independent examination. Things can go wrong in those circumstances and it is important that there should be an independent observer to see that the sample is properly taken, conveyed to the container, sealed properly and taken away in part by the solicitor or the detained person and in part by the police officer for delivery to the forensic science laboratory. There must be confidence in this process.
It is a significant development in our law because we are recognising statutorily that the forensic examination of samples of the suspect is an important feature in establishing the guilt or innocence of that suspect. It is vital that there should be the fullest possible confidence in the process on the part of all agencies and persons involved in the criminal prosecution process. It would be a great pity if when this legislation is passed the accounts given by suspects of the procedures followed showed that they were not up to the best standards or alternatively if forensic scientists on the part of the defence criticised the conditions in which the sample was retained or claimed that it was interfered with or even destroyed.
It would be a great pity if criticisms of that type were made, undermining confidence in the process. It is not an unreal fear. The Minister may recall the very serious undermining of thumb print impression evidence that occurred in the past decade. Probably the strongest incontestable forensic test that could be taken for identifying the suspect, the imprint of the finger, was seriously challenged because it was exposed that the best standards were not complied with within the forensic laboratory retained by the police for such examination. Mistakes were found. The photographing in situ of the imprint before it was lifted so that it could be independently assessed had been abandoned. The two officers who went to the High Court to challenge their unfair transfer, as they alleged, from the finger print department exposed at length the collapse in standards within the finger print laboratory. It was ultimately exposed in the investigation of the death of the late British Ambassador, who was brutally blown up on the way from Glencairn, that the most senior officers, because of a lapse of standards, had made mistakes.
If anything like that is allowed to happen with regard to this forensic evidence, particularly in the early stages, we will have done a huge disservice. One of the best ways to ensure that this type of thing does not happen is to give the right to the detained person to be advised by the officer taking the sample of his or her right to have a solicitor present. Where that is requested, the sample should be taken only in the presence of the solicitor. This is reasonable and I hope the amendments will be agreeable to the Minister.
I would preface my remarks on these amendments and others which the Deputy has tabled by reiterating a point I made on Second Stage. The Garda, if they are successfully to fight crime, need to have available to them the most up-to-date detection techniques that science can provide. The purpose of the Bill is to provide them with the power to avail of such techniques in the forensic science area. I recognise that the granting of the powers proposed in the Bill will impinge on personal rights and freedoms and for that reason I have taken very great care to ensure that no power is conferred that is not absolutely necessary and that adequate safeguards will be provided where such power is exercised.
I am satisfied that I have achieved a reasonable balance in this Bill and while I accept that these amendments are tabled as a result of genuine concern, I believe they are unnecessary and would upset the balance of the Bill. The effect of amendments Nos. 1 and 2 would be to give an accused the right to have a solicitor present when a sample is being taken from him and to have a portion of any sample taken given to him or to his solicitor. As to the presence of a solicitor while samples are taken, I do not see what purpose this would serve. The Bill provides that an intimate or intrusive sample can only be taken with the appropriate consent and by a registered medical practitioner. It is hardly necessary for a solicitor to be present to ensure that the doctor adheres to proper ethical standards. In the case of samples that may be taken without consent, the solicitor would have no right to advise the person in question to resist the taking of the sample.
Far from providing an additional safeguard by requiring the presence of a solicitor when a sample is taken, it would create practical problems, some of which would be contrary to the interests of the accused. For example, an accused might have to be detained in custody for longer than would otherwise be necessary simply to await the attendance of his or her solicitor. How would an accused feel about having his or her solicitor present if a sample was to be taken from an intimate part of the body, particularly if the solicitor and the client were of opposite sexes? In any event the general rules laid down by the court in accordance with the Constitution and the Criminal Justice Act, 1984, as to the rights of detained persons to consult their solicitors will not be affected by the legislation. In summary I believe that these amendments are unnecessary and impracticable.
The Deputy touched upon an area included in amendment No. 8, that is the whole question of the integrity of the samples and of non-tampering with them. I will try to explain how samples are treated at present. The garda who takes a sample or to whom one is given by a doctor generally delivers it by hand to the forensic science laboratory where it is personally received and entered in the records by a scientist. This is done because the courts insist on continuity of custody of such material. There is no question of such material being left lying around the station or being handled in any slipshod way. Once the sample reaches the forensic science laboratory its movements and the tests carried out on it are meticulously logged. These are the arrangements which have been operating since the forensic science laboratory was established some 15 years ago. They have operated successfully and without challenge and I see no need to interfere with those arrangements. It is not relevant to the particular amendment before us but it was touched on by the Deputy in his contribution.
I have listened to the Minister's reply and I am not fully convinced that this is something that will give rise to serious difficulties. We are dealing with a fundamental right of a person who is brought to a Garda station, and this legislation will have a serious effect on practices in Garda stations. It is not asking too much that a detainee, an alleged offender, be given an opportunity of inviting a solicitor or legal adviser to stand at his side and proffer whatever advice the circumstances might ordain. The Minister stated that perhaps it was unnecessary that such a right be afforded. On the other hand, I fail to see how the presence of a legal adviser would in any way impede the work of the Garda Síochána, of the prosecuting team in the Garda station, the investigative team, or indeed the registered medical practitioner who will attend. I fail to see how the innocent presence, purely as an aid, would act as an impediment to the proceedings. The Minister quite rightly states that we are dealing with something in the nature of a revolution in the area of crime detection. This is a major step forward. I contend it is right and proper that every opportunity be afforded a detainee to be advised of the circumstances surrounding his detention and the questions put to him.
Having regard to the experience of the 1984 Act, particularly the regulations and the statements at the time regarding the tape recording of interviews, the video recording of interviews and the tardiness that followed that is well known, having regard to the fact that these regulations or those envisaged at the time for the introduction of such technology in Garda stations have not been put into effect, I contend further underlines the need for a detainee, an alleged offender, to be given an opportunity of inviting in his legal adviser. Again, looking at statements from the Garda forensic laboratory, I note it was stated that initially at any rate this new technique will not be used on a daily basis; it is fair to say it will be used in the case of serious crime only. Perhaps we will not have the introduction of DNA fingerprinting on a measured scale on the Irish criminal law scene. That underlines the fact that, as far as the Garda Síochána are concerned, the technique will be used only on somewhat rare occasions. Because of that, because it will not be an ordinary, everyday occurrence in Garda stations I contend it is not asking too much and is not unreasonable to allow the presence of a solicitor at the option of the detainee.
There may be occasions when a detainee reckons there is no need for him to have a legal adviser at his side. It is purely optional in that technically the absence of a solicitor or legal adviser will not render the proceedings null and void. It is purely an option, one which can be exercised at the behest of the offender. I fail to see the difficulty the Minister envisages as far as the procedure is concerned. It is my hope he will give the matter further consideration before deciding finally.
I must emphasise to the House and to the Deputies concerned about this that I am not saying a solicitor cannot be present. However, I am saying I am not prepared to make it a condition that a solicitor must be present before a sample can be taken. Of course the rights of the individual are protected under the Constitution and the Criminal Justice Act, 1984; those rights as to consultation with solicitors will not be in any way affected by the provisions of this Bill. I want to emphasise that I am not preventing a solicitor from being present but I am not prepared to include it as a condition that a solicitor must be present at all times. Many of these examinations will be undertaken by a doctor. There is nobody suggesting that there would be anything improper or that a doctor involved would break any of the ethical rules; indeed the same would apply to Garda operations also.
I acknowledge the point the Minister is making in terms of the rights under the 1984 Act but there is a fundamental difference involved between the 1984 Act and what is proposed here, indeed between the right provided under the 1984 Act and what is being sought by way of this amendment. The 1984 Act deals with the right to detain for the purpose of questioning. It is proper and I have no difficulty with that provided that, in time, we make provision for the video recording of interviews. I do not think it is ever something one would like to do, as a lawyer, that is to be present when a detained person is being questioned. That is a matter between the interrogator and the detainee. The suspect has the right to be advised as to his or her rights under the legislation and in general law. That is there but that does not provide in any way the right that a solicitor can insist on being present when a sample is being taken; there is not that extension there and there is a difference. The 1984 Act would provide a right for a person detained, for the purposes of this Bill, to have consultation, to be advised, but then I believe the Garda could request the solicitor to leave the room and they would then carry on with the taking of the tests.
I am saying that we should provide the right in the Bill that, first, where legal representation is requested by the detained person, then that right should exist. I am not saying that it is a must in every circumstance. That is not what is being sought in the amendment. I am saying that where the detained person requests it then there should be an obligation, then the "must" enters into it.
The reason there is a need for it is to have an independent record. The Minister makes the point that many of the samples will be taken by a medical practitioner, that therefore no one can suggest there would be any impropriety. Even if there is never an element of impropriety entering into the circumstances, even if one were not to argue in that fashion, the need to maintain confidence in the process still demands some form of independent observation. Doctors who are retained by the Garda Síochána as doctors on call to go to police stations for the purpose of taking samples under the provisions of the Road Traffic Acts, or when there are allegations of assault to come and look at a suspect, a detained person, to ensure there are no marks on them, or to carry out an examination to ascertain the precise position are cross-examined repeatedly in the Dublin Criminal Courts before juries, often with the allegation: are not you a police doctor? In my experience it is something which has an impact, that these are men and women, invariably men, who are on call, are available to the Garda, and that a substantial portion of their practice and time is taken up with that type of work. That is a tag of which one must be wary lest it creep into the taking of forensic samples here because it can create a problem.
I have to say to the Minister that the mere fact that a person is a professional does not get rid of the unfortunate risk, problem or element of dishonesty. The number of professional people found to be dishonest in various disciplines, if we are to believe any of the salacious stories reported in the English tabloids, for instance, doctors who prescribe drugs when they should not, lawyers, even accountants who are found with their hands in the till can be substantial. Being a professional does not by definition mean one is absolutely honest all the time. I want to make that point without labouring it. I am not suggesting there is a great pattern of dishonesty, but the problem is there. It is a risk that can emerge and we should guard against it and ensure the integrity of the procedure that question marks, as with the fingerprint experience we had, cannot creep into this process. It is, as was correctly pointed out, vital and revoluntionary and it is important that it be allowed to develop unhindered.
On the other point, delays are one of the practical problems. I accept that making it an absolute precondition where requested could cause problems. Perhaps a solicitor has a busy practice — or he may be dishonest — and delay going to the station and in that way seek to frustrate the taking of the sample. If there was a proviso to my amendment No. 1 that a reasonable period be made available for the solicitor to attend and at the expiration of that time the test can proceed without supervision, without the attendance of a solicitor, would the idea be more attractive to the Minister? I would have no objection to that. Practical difficulties could arise and as a result the delay element should not create a problem. Under section 30 of the 1939 Act a person can be in custody for two days and under section 4 of the 1984 Act a person can be there for 12 hours and, as has been well illustrated in debates here, that can often amount to much more than 12 hours, a day or a day and a half, depending on the time of day the suspect is detained.
There should be no difficulties. There are many practitioners in the criminal field, many solicitors are available, and by and large there have been no complaints from the Garda to date that their investigation processes of question or holding identification parades are in any way hindered or unduly held up by their having to wait for a solicitor to give advice and to consult with the detained person. Therefore, delay is something we can get over, and if the proviso I have suggested is included, to the effect that no unreasonable delay by a solcitor can be the reason for not taking the sample, would that meet the Minister's requirements?
In regard to the taking of intimate tests, the other practical difficulty mentioned is that quite often the intimate tests may have to be taken by a male doctor of a female detainee or vice versa. The presence of the solicitor during the taking of the tests arises out of the request of the detained person. It is not an absolute imposition, and if the detained person decides that he or she will sacrifice intimacy in the interests of ensuring an independent assessment of what is happening, then on balance it is better that we get over any conservatism in this area and recognise that the right of the detained person should be respected and honoured. If there is agreement there should be no difficulty. Again I remind the Minister that we are professional people and if doctors can do this work I do not see why lawyers cannot observe, and see things are done correctly. In the course of any trial particularly a rape trial, where the public hair of the victim is found and how intimate it was to the genital area of the suspect can be vital. That can be as important as the time the witness spent before picking a particular person out of the identification parade. For the suspect, it can often be an important ingredient recorded by the solicitor, asking, “did it not take you two minutes?” as opposed to an instantaneous recognition. There are facts that can be observed, recorded and then brought to the aid of the defendant at a subsequent hearing. That can arise even in the most clinically taken and professionally administered test. That might not come immediately to mind here in the rather remote location of the Dáil Chamber, but from experience, I believe this is an important right.
I urge the Minister to think about it again. I ask him to consider accepting the principle with the proviso I have talked about, that undue delay on the part of the lawyer should not be an impediment to the taking of the sample in his or her absence.
There are written rules laid down by the courts in accordance with the Constitution and the Criminal Justice Act, 1984, as to the rights of detained persons to consult their solicitors. These will not be affected by this legislation. A person from whom an intimate sample is taken must first consent in writing to having that sample taken. Therefore, there can be no question of a doctor being involved in forcible taking of samples. Let me emphasise that, and I feel that matter has been blown out of proportion.
If a blood sample is taken, that is that. What has to be observed is how a blood sample is taken? Again the Deputy is moving into this area of tampering, and suggestions of tampering, with samples. It is well that I bring the discussion back to what we are talking about. The Deputy's concerns are based on a misunderstanding of what is involved in the taking of samples for forensic testing.
Again we are moving into other amendments — amendments Nos. 3 and 4. Let us look at blood sampling. If a sample of blood is taken from an accused to establish his blood group or to obtain DNA for forensic testing, there would be no point in tampering. If the accused wants to have an independent test at any time he can do so. It is not like the case of a drunk driver where, under the Road Traffic Acts, a test is taken to determine the alcohol content of the blood at a particular time. That is not what we are talking about here. You take blood for a forensic test now, or in a week's or a month's time and if the accused, in consultation with his solicitor, feels something has been done that should not have been done, he can have an independent test of his blood carried out at any time and he can argue with the DNA test and the result thereof.
I cannot go along with the amendment. I recognise fully that it was tabled from genuine concern but I believe there is a misrepresentation here. I hope I have succeeded in convincing the Deputy. I regret I am not able to accept the amendment in its present form or in the amended form he is suggesting he might put down on Report Stage.
Amendment put.
The Committee divided: Tá, 62; Níl, 75.
Tá
- Allen, Bernard.
- Barnes, Monica.
- Boylan, Andrew.
- Bradford, Paul.
- Bruton, John.
- Bruton, Richard.
- Carey, Donal.
- Connaughton, Paul.
- Connor, John.
- Cosgrave, Michael Joe.
- Cotter, Bill.
- Creed, Michael.
- Crowley, Frank.
- Currie, Austin.
- D'Arcy, Michael.
- Deasy, Austin.
- Deenihan, Jimmy.
- De Rossa, Proinsias.
- Doyle, Joe.
- Dukes, Alan.
- Durkan, Bernard.
- Enright, Thomas W.
- Farrelly, John V.
- Fennell, Nuala.
- Finucane, Michael.
- FitzGerald, Garret.
- Flaherty, Mary.
- Flanagan, Charles.
- Garland, Roger.
- Higgins, Jim.
- Higgins, Michael D.
- Hogan, Philip.
- Howlin, Brendan.
- Kemmy, Jim.
- Kenny, Enda.
- Lowry, Michael.
- McCartan, Pat.
- McCormack, Pádraic.
- McGinley, Dinny.
- Mac Giolla, Tomás.
- McGrath, Paul.
- Mitchell, Jim.
- Moynihan, Michael.
- Nealon, Ted.
- Noonan, Michael (Limerick East).
- O'Keeffe, Jim.
- O'Shea, Brian.
- O'Sullivan, Gerry
- O'Sullivan, Toddy.
- Owen, Nora.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Reynolds, Gerry.
- Ryan, Seán.
- Shatter, Alan.
- Sheehan, Patrick J.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
- Taylor-Quinn, Madeleine
- Yates, Ivan.
Níl
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Andrews, David.
- Brennan, Mattie.
- Briscoe, Ben.
- Browne, John (Wexford).
- Burke, Raphael P.
- Calleary, Seán.
- Callely, Ivor.
- Clohessy, Peadar.
- Collins, Gerard.
- Connolly, Ger.
- Coughlan, Mary Theresa.
- Cowen, Brian.
- Cullimore, Séamus.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Fahey, Frank.
- Fahey, Jackie.
- Fitzgerald, Liam Joseph.
- Fitzpatrick, Dermot.
- Flood, Chris.
- Flynn, Pádraig.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Harney, Mary.
- Haughey, Charles J.
- Hillery, Brian.
- Hilliard, Colm.
- Hyland, Liam.
- Jacob, Joe.
- Kelly, Laurence.
- Kenneally, Brendan.
- Kitt, Michael P.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Kitt, Tom.
- Lawlor, Liam.
- Leonard, Jimmy.
- Lyons, Denis.
- Martin, Micheál.
- McCreevy, Charlie.
- McDaid, Jim.
- McEllistrim, Tom.
- Molloy, Robert.
- Morley, P. J.
- Nolan, M. J.
- Noonan, Michael J. (Limerick West).
- O'Connell, John.
- O'Dea, Willie.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Ned.
- O'Kennedy, Michael.
- O'Malley, Desmond J.
- O'Rourke, Mary.
- O'Toole, Martin Joe.
- Power, Seán.
- Reynolds, Albert.
- Roche, Dick.
- Smith, Michael.
- Stafford, John.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Wallace, Mary.
- Walsh, Joe.
- Wilson, John P.
- Wyse, Pearse.
Tellers: Tá, Deputies McCartan and Rabbitte; Níl, Deputies V. Brady and Clohessy.
Amendment declared lost.
We now come to amendment No. 2 in the name of Deputy McCartan. The House will agree that we discussed this amendment in some detail with amendment No. 1. How stands the amendment?
In view of the result in respect of the vote on amendment No. 1, I do not propose pressing this amendment.
Amendment No. 2 not moved.
We come to amendment No. 3 in the name of Deputy Pat McCartan. As amendments Nos. 4 and 7 are related, the three amendments may be discussed together. Is that satisfactory? Agreed.
I move amendment No. 3:
In page 4, subsection (6), between lines 18 and 19, to insert the following paragraph:
"(b) that the detainee or his solicitor may take possession of a portion of the sample or a copy of the sample or test for the purposes of his assessment or examination,."
We have discussed in part the importance of this amendment. It is a provision that must stand on its own irrespective of the failure of the argument that a solicitor be present. Amendment No. 3 proposes that the detainee or his solicitor may take possession of a portion or a copy of the sample or test for the purpose of his assessment or examination. Deputy Flanagan's amendment No. 4 is similar in principle. It deals with the concept of facilitating an independent assessment by the detainee of the sample taken.
Amendment No. 7 in my name provides that there is an obligation on the member who takes or causes to be taken any test or sample to provide the detainee or his solicitor with a copy or portion of the sample or test for retention by the solicitor. The amendment further suggests that such sample or copy of the test should be supplied as soon as is immediately practicable to the solicitor or detainee. There cannot be any undue delay or obstruction on the part of the member who takes the test or causes it to be taken. The failure by the member to provide the test as soon as is immediately practicable shall render any evidence from the test inadmissible in evidence at a court of law. Failure to provide the detainee with the sample for the purpose of having an assessment carried out shall carry with it a sanction that the evidence sought to be relied upon by the member at the trial will be rendered inadmissible and unusable.
As I have said, this provision stands on its own irrespective of the earlier discussion. The Minister made some observations in response to amendment No. 1 which are pertinent to this amendment. He is of the view that simply because blood is blood, urine is urine and public hair is pubic hair, the detained person can, once released from prison, carry out an independent assessment of the items in question. The detained person will carry his blood with him all the time. The same applies in other cases, although not all cases. Urine, if it is used for DNA purposes, can be constant but it is not always so. I presume — I am not entirely clear about this — the same applies in regard to saliva. Material found underneath a nail will always be different; it need not necessarily be constant. Swabs that are taken of any orifice of the body need not be constant or fixed. Therefore the provision of a copy or a portion of the sample is important.
We should at least introduce into the legislation a provision which would give absolute entitlement at all stages to the detained person or suspect to carry out or have carried out on their behalf an independent assessment of what is being alleged against them, remembering that the detainee is an innocent person whose rights, as the Minister has said, are being fundamentally impinged. They are required to comply with a law that may involve an element of self-incrimination. In those circumstances, it is vital that the balance about which the Minister spoke is maintained by ensuring that whatever the suspect is required to surrender to the prosecuting authorities can be independently assessed and retained, if necessary, for evidence purposes, by the detained person.
Even if you leave aside those tests under the section which are clearly not constant, fixed or permanent, such as blood, swabs and material underneath nails — and the Minister cannot make an argument that a sample, where possible, should not be made available to the detained person or his solicitor — the conditions under which other samples are taken can have an impact on the quality or indeed the conclusions which would arise if, for example, containers cleaned with an improper detergent are used. If they are not properly sterilised they can have a very profound effect on the conclusions in regard to the subsequent analysis of the blood, urine, saliva or traces which would be sought to be examined from the swabs taken from the body. The conditions under which they are taken in the cell or police station can have a very profound effect on the sample. Consequently, the departure from the station by the suspect and the subsequent examination of the suspect in other clinical conditions, by another independent person, can lead to contradictory conclusions. Then the issue at the trial is whose evidence the jury accept.
This debate is relevant if one has regard to the course of the evidence in the Birmingham Six case where, for days, one forensic expert argued against another about how one could read and draw conclusions from evidence. They argued over the minutiae of decimal points, whether the solution used was .01 or .0001. This is the kind of finite scientific evaluation which takes place in this context. Atmospheric conditions may well have an impact on some of the tests and samples involved, and it is important, where possible, to facilitate the suspect or the defence with a sample, or portion of it. There cannot be any argument by the Minister against this principle and I hope he will not talk about impracticalities, such as the difficulties which may arise in delivery. Where it is practical and possible it should — and must — be done. I do not want to be repetitious but I must come back to the process of ensuring confidence in the system. If you allow a regime where you can introduce argument, debate and attack on the system, you are doing a disservice to the whole concept of the Bill. We have now lost the argument on the right of a lawyer to be present and if we are to lose the argument on the right of the suspect or lawyer to have portion of the sample, we are getting close to scrapping the Bill.
On reflection, there is a difficulty in relation to amendment No. 4. Amendment No. 3 in the name of my colleague — with a little addendum — would satisfy the requirements of Opposition parties in regard to this matter. My amendment requires a portion of the sample to be taken because, obviously, if the detainee takes the entire sample it will be a setback for the legislation.
There should, of course, be an opportunity for an alleged offender to engage in an independent sampling process because it represents an element of balance. We are dealing with legislation which is bringing forward extraordinary changes and which will significantly interfere with the personal rights of the individual. There is no choice for the victim in the Garda station. Of course he can refuse to give his consent but such refusal will be taken as an indication of his guilt. We must face facts. There cannot be an element of choice since there is compulsion and to allow the party to have an independent examination of the sample could not be regarded as being unreasonable. The process of DNA fingerprinting is maturing and there is still some doubt in relation to it. I recall the notorious case of the Australian policeman who was charged with a number of rape offences following genetic fingerprinting. It was only about a year later, following his commission of an independent blood test, that all charges were dropped. I am not up to date on the present position but I know that the authorities instituted a sworn public inquiry into the matter. I do not know if their findings have been reported but it is an indication that the DNA process is not foolproof.
If there is an element of doubt a person is entitled to have a sample of a sample given to him so that he can have it examined independently. Of course, he does not have to exercise that option if he does not want to but it removes the element of doubt over the whole proceedings.
The Minister, in reply to an earlier amendment, talked about blood, and he said it would always have the same properties. However, he must acknowledge that blood is the least likely property of those mentioned in section 2 to produce a positive or satisfactory result from the point of view of the prosecution. Items such as pubic hair, urine, saliva, hair other than pubic, and material found under nails, have proved to be far more beneficial to the prosecution than blood. Even the founding father, Professor Jeffreys, cast some doubt on the usefulness of the blood test.
The amendment is perfectly laudable and I hope the Minister will consider including it in the Bill instead of leaving the matter to be dealt with by regulations at a later stage. It is far too important to be left until then and it should be written into the legislation now. The individuals have the option of proceeding if they wish to do so. I look forward to the Minister's response in defence of his position.
We had touched on amendments Nos. 3, 4 and 7 in the debate on amendments Nos. 1 and 2. They seem to be based on the belief that the Bill as it stands could allow samples to be tampered with. This is simply not the case. The Deputies' concerns in this regard are based on a misunderstanding of what is involved in the taking of samples for forensic testing. Deputy Flanagan touched on the question of a blood sample. If a sample of blood is taken from an accused to establish a blood group or obtain DNA for forensic testing there would be no point in providing the accused with part of the sample to have it independently checked. He is carrying the same blood in his body to have a sample taken for independent testing at any time. It is not like a blood sample taken under the road traffic legislation to establish alcohol content. There, the level of alcohol in the blood at the time the sample is taken is all important. With other samples such as scrapings from the nails or swabs from suspect areas of the body there could be practical problems in dividing what could be minute samples. Even if it were practical to give the suspect a portion of any sample, what purpose would it serve? The court must be satisfied that material which is forensically tested has been properly handled.
Deputy McCartan in some of his proposed amendments goes even further to ensure that this is the case. What then of the portion which is given to the defendant? How will that be safeguarded from alteration or tampering? While I appreciate what Deputy McCartan and Deputy Flanagan are trying to achieve, they do not appreciate the difficulties inherent in what they propose. The very nature of the samples taken, and the tests for which they are taken, must make deliberate tampering in order to falsify results very difficult. The tamperer would need to be an expert in chemistry or biology to have any hope of success. We have to be practical in our legislation and provide safeguards against reasonably likely dangers. If the evidence at the trial showed any possibility that a sample was tampered with, the judge would be in a position to take whatever action was necessary in the interests of justice.
What we are trying to do is to be practical. One can only judge the operation of the forensic science laboratory. When a sample is taken the garda who takes the sample, or to whom a sample is given by a doctor, will deliver it by hand to the forensic science laboratory where it is received and entered into the records by scientists. This is done because of the continuity that the courts insist on. There is no question of such material being left lying around or being handled in a slipshod way. When it reaches the forensic science laboratory its movement, and the tests carried out on it, are meticulously logged. These procedures have operated for 15 years, since the laboratory was established, without challenge. It is important to emphasise that in the debate. Our forensic science laboratory has not been queried in relation to its procedures. There is not any need to interfere with those arrangements.
A practical problem with giving a sample of a sample is that the sample may not be consistent. If a number of hairs are taken, there might be traces of residue on some but not on others. If they are split and some are given to the accused it might be hair which does not have the same residue. Expert advice given to me from the Forensic Science Laboratory is that what is proposed in these amendments is not workable. I would emphasise that the policy of the laboratory is to be completely open with the accused. The personnel of the Forensic Science Laboratory will meet with the suspect, his solicitor or experts and will show them how the sample has been tested and the procedures used. They are quite happy to have their procedures and standards independently verified in any case. I will go further this morning to try to assure Deputies of my good faith in this. If Deputies with an interest in this area wish I will arrange with Dr. Donovan, the director of the Forensic Science Laboratory, to show Deputies the facilities in the laboratory and have the workings explained to them. Such a briefing might be beneficial to spokesmen on this legislation who have shown such an interest in their area of responsibility in Justice.
I also assure Deputies that the Forensic Science Laboratory provide training for gardaí as to how samples should be handled to ensure that there can be no tampering with them.
I want to be as helpful as possible to Deputies but I regret that, on foot of technical advice from the Forensic Science Laboratory, I am not in a position to accept their amendments. I regret that while in theory the point made is a reasonable one, in practice it would not work.
The Labour Party support amendment No. 3 in the name of Deputy McCartan. That is not to say that we have any doubts about the professional capacity and bona fides of the forensic science laboratory, its director and staff or by and large the members of the Garda Síochána. We have complete confidence in them. Nonetheless, when a procedure like this is being introduced it is incumbent on us in so far as is practicable to do what we can to ensure that justice is not only done but is seen to be done.
The Minister drew a distinction between a sample taken to detect alcohol in the blood under road traffic legislation and other samples. To an extent I take the point the Minister made. Is it a fair analogy to make? If one were to take the point that everything is carefully logged, that the examination by the laboratory is completely reliable so far as the alcohol test is concerned, there would not be a necessity for the legislation to provide that a sample taken should be divided and a proportion of it given to the accused. Why? It provides it because it appears to be right that an opportunity be given in a case like that to the accused to have his own analysis carried out if he wishes. That is the basic principle. The fact is that there is a case to be made for the giving of a sample taken to the accused where it is practicable to do so. I appreciate that there may be times where the sample taken is so minute that it would not be capable of division. If it would help, I have no objection to including a saver to say that where practicable the sample taken should be divided, accepting that in some cases it might not be practicable.
On the blood question, it is not quite right to say that a person can go off and have a sample of his blood taken at any time and have it analysed. There could be a substance in blood other than alcohol, that might be relevant, and, for the same reason that applies in drunk driving cases, it could be important that a proportion of the sample taken should be given to the accused. It is done as a matter of course under drunk-driving legislation and does not give rise to any practical difficulties. The procedures are already well established. The doctors who take the samples do it as a matter of course, so why raise any difficulty about it? If it were practical to do it with other types of samples, why not do so? The accused could not complain that he did not have an opportunity to conduct an independent test on the specimen. It would give rise to a clear appearance of justice and fairness. I cannot see that, if we put in a saver to say it could be done where practicable, it would cause any undue concern for the Minister or for the laboratory staff.
The Minister made the point that, for example, in taking samples of hairs it could well be that one specimen would give one result and another specimen would give a different result. That might well be. It could be very important to show that there was a variation in the samples taken in one way or the other. That could be an important matter of evidence in a case. The fact that the Minister concedes that there could be variations reinforces the position taken up by the amendment. If we provide for this it is not a question of suggesting that there would be tampering with any of the specimens although that is not to say it could be regarded as out of the question that on rare occasions strange things happen. It should not be put in on that basis although the fact that it was provided for would take away from an accused any opportunity of alleging that there was tampering with a specimen. If the opportunity is not given to the accused he could claim that the sample was tampered with. If a portion of the specimen is given it would defuse that argument.
What is the big problem about it? If a specimen, sample or swab is divided and if an accused or his representative feels it would be helpful to have their own test done, where is the problem with that? The specimen could be divided into two jars, one for the prosecution and one for the defence. It would not involve any extra expenditure and would be no great deal. Why not agree to do it in a case where it is reasonably practicable to do so? I do not follow this reasoning.
Without in any way impugning the skill and professionalism of the laboratory staff or the director, the fact remains that some tests on substances are on the borders of scientific development. At the end of the day the director and his staff are professionals. Surely the Minister knows that professional opinions and interpretations differ. All professionals, be they doctors, engineers or scientists disagree with each other and give different interpretations on evidence or findings in the courts. The good thing about these scientific opinions is that they are not scientific at all. They are an opinion on interpretation. There is no reason to suppose that the interpretations and constructions put on findings from these specimens are different from the findings or opinions of doctors, surgeons and so on. In any court case you will find that they give different opinions on tests and findings. That is a fact of life and must be accepted. One scientist could give a different interpretation from that given by the director of the laboratory, and the court would have to decide, taking all the other evidence into account, which view to accept.
To go down the road the Minister suggests would be a one-sided approach to the issue. It would take away from the accused the benefit of getting his own professional opinion on the specimen. It is patently unjust to put an accused in that position, particularly when it presents little or no difficulty to do so.
I ask the Minister to look at it again. I accept there may be cases where it would not be practical to divide the specimen. If it cannot be done, it cannot be done and I concede that, but where it can be done it should be done. It would just be a matter of providing two bottles or two jars instead of one. They would be labelled in the same way and established procedure would be followed. It seems logical and appropriate to do so. It would not cost the State anything and would be little or no trouble.
It would appear from what the Deputy said that this is all brand new but the procedures for taking specimens for forensic testing are not being introduced now. There is power under the Criminal Justice Act, 1984, to take specimens and samples. The Garda have obtained blood samples, for example, on a voluntary basis. No problems have arisen. All the Bill does is to give the Garda power to take the samples. Nothing else has changed.
As regards the samples, it is not quite as simple as cutting a swab in two or taking one portion of blood and another of urine, etc. For example, in the case of public hair there may be residue on one piece which would not be the same as on another. It is not just a question of dividing it in two. When the Forensic Science Laboratory bring evidence before the court, if the evidence at the trial showed any possibility that the sample was tampered with, the judge would be in a position to take whatever action was necessary in the interest of justice. If an accused wants an independent test carried out, the full specimen which has been worked on by the laboratory will be made available. The accused can have an independent test carried out on it by experts brought in by the accused.
They could be affected by the passage of time or by the test itself.
That is a possibility and I accept that. As I said earlier on the question of transparency in the laboratory, each phase of each test carried out is meticulously logged for court and this can be made available to experts. We have to very careful when discussing this subject — I fully appreciate that Deputies are expressing genuine concerns — not to say anything which in any way would cast even the remotest shadow on the record and behaviour of the forensic science laboratory which has served the country well since its establishment 15 years ago. It has operated successfully without its integrity being challenged. I am sure it is not the intention, and it is well that I clarify it, that nothing should be said which would cast any doubt on the integrity of the forensic science laboratory, its director and personnel.
I made that clear.
I have no difficulty with the proposition put forward by Deputy Taylor, that is, that the words "where practicable" should be included in the amendment. That is a very reasonable and sensible proposition, and it is my fault they were not included in the amendment. I am disappointed, nonetheless, that the Minister is not even going to look at it. The precedent and practice is there in the road traffic legislation. As Deputy Taylor asked, what are the difficulties, problems and reasons against the inclusion of the amendment?
I want to make it clear that I have nothing but the highest regard for the State forensic science laboratory and nothing in the amendment or what I have said should be taken to suggest that the problem I wish to deal with rests with the State Forensic Science Laboratory. I am happy that the highest standards are applied in that laboratory but to suggest that its integrity or performance has never been challenged is to deny that legal argument and cross-examination occur invariably at trials about the methods used, records taken and standards applied.
I acknowledge that I have always found the State Forensic Science Laboratory to be open, available and willing to accommodate any approach from defence lawyers and experts retained on their behalf to look at, observe and access work done there. However, to suggest that the problem of tampering will not arise is to ignore the range of events which can occur from the time a police officer asks a person to give a sample in a police station to the time it gets through the door of the State Forensic Science Laboratory because there will be a range of opportunities to tamper with samples, not simply designed tampering but also tampering by accident.
It has been suggested that if there are delays samples will deteriorate. I recall in the Kerry Babies Inquiry the State forensic pathologist, due to a lack of facilities, carried samples around in an ice box in the boot of his motor car. I have no doubt that in many instances members of the Garda Síochána who take samples place them in their lockers in the police station. Because of pressures on time, work and duties it can be days before a sample eventually gets to the State Forensic Science Laboratory. This is a fact. I have come across this practice daily in my work where the locker is used as the safe repose until the officer has all the exhibits in a particular case assembled, be they from the room in the police station, the scene of the crime, the hide-out, or the location of the proceeds. It is only when the 20, 30, 40 or 50 exhibits have been assembled that they are delivered to the State Forensic Science Laboratory from the locker of the police officer.
The Minister must be aware that at an early stage in most criminal investigations the officer in charge designates one of the members as "exhibits officer" and it is his or her duty to collect from all the investigating police officers in the inquiry the various samples and exhibits and to give them exhibit numbers. He or she also has the sole responsibility of delivering them to the State Forensic Science Laboratory. An exhibits officer is appointed in an effort to address the chain of evidence issue which the Minister has spoken about and to make it clear that one particular officer involved in the investigation is responsible for the safe keeping and delivery of samples.
Sometimes it takes days or weeks to conclude the investigation and during that time any number of things can happen either advertently or inadvertently. I do not want to be unduly contentious but it does not take a great deal of imagination or reflection to realise that an officer, if so inclined could tamper very easily and neatly with samples. Unfortunately, there has been an era — I am not suggesting that this is the case now and in my experience there is certainly no such evidence — when there was a view within senior circles of the Garda Síochána that the rules could be broken because of the pressures involved or the perceived difficulties within the community at the time. There was a view that it was all right to break the rules and that statements could be manufactured and obtained by bringing undue pressures to bear or through the use of improper procedures. That was a sad chapter in the history of the Garda Síochána.
If a police officer was so inclined, could there possibly be a more simple, clinical or neat way to stitch the case against the person who is undoubtedly believed or perceived to be the offender than to take a sample, for example, a sample of hair or a swab, and pepper it with the type of residue, evidence or indicators which the officer believes would incriminate the accused in an effort to get away from the pressure to have statements signed? What is to stop an officer taking a sample, going to another room to do whatever doctoring is necessary, put it in a bag and seal it and then deliver it to the State Forensic Science Laboratory who, in all good faith, will receive it in a sealed container and work on it on the basis that it is the sample as taken from the body or person of the suspect? It is so easy that it is frightening to think about it.
One of the safeguards I proposed was that a lawyer should be present to see the sample being taken, put into a bag, sealed and labelled. This would provide a chain of security which would enable the Forensic Science Laboratory technician or scientist to say he received the bag with the seal intact. This is the process employed in relation to blood or urine samples; it is put in a sealed container in the presence of the accused. One of the necessary elements of the certificate issued by the State Forensic Science Laboratory is that the seal was intact when the sample was received. However, that safeguard is no longer there and a solicitor will not be present in a police station as of right. Therefore, the only possible conceivable safeguard is to have the sample divided where practicable— I accept that point — and a portion delivered to the suspect or his lawyer. It is in the interests of all of us to ensure that things do not go wrong or otherwise, whether or not things are right, one will be opening up contention and the opportunity for questions to be raised. As I mentioned earlier the best illustration of that is that even to this day lawyers in cross-examination attempting to discredit fingerprint evidence will remind the jury and the court of trial, about the unfortunate mistakes that were made and the lack of standards that existed in the fingerprint laboratory in the last decade, as illustrated by the famous case we talked about. We are talking about facts as they can emerge.
The Minister has made an interesting observation that in theory what we are talking about is good but that in practice it is not so good on the advice of the Forensic Science Laboratory. If the Minister accepts the proviso suggested by Deputy Taylor — and I think he should — and include the words "where practicable", then our theory which is good, and which has been accepted as such, can also be good in practice because we say it should apply only where it is practicable. I urge the Minister to look at this issue again before Report Stage.
On the question of practicality or otherwise, who is to judge at any particular time what is practicable? Is it the garda who is taking the sample? So far as the sample of blood is concerned, there is no difficulty as I have already explained. It is irrelevant whether the test is taken today, tomorrow or next week as the accused carries the same blood. It is not as if a test is being carried out for an alcohol content under the provisions of the road traffic legislation. This is a different type of test. These tests are being done in any event. The difference in this legislation is that the gardaí are given power to carry out the test. Until now it had been done in a different way. In relation to the blood sample there can be a division, and an independent analysis, but that is pointless because if an accused wants to have independent blood samples taken at any time it can be done. It is when other samples are being taken that we come to the practical problems I outlined earlier.
I should like to re-emphasise that the Forensic Science Laboratory is available to the accused, to the accused's solicitor and experts to see how the tests are being done, the logging of the tests, and, where practicable, samples will be made available for further tests. The gardaí have clear instructions on how forensic samples are to be handled. If they depart from those instructions disciplinary action can be taken against them. If there is any suggestion or information of any member of the force doing other than in accordance with instructions I would like to get it. I know the Garda Commissioner would want to take immediate corrective action against any suggestion of improper behaviour but that has not arisen. As I emphasised earlier — it is worth repeating — the arrangements in the Forensic Science Laboratory have operated successfully for the last 15 years since it was established. They have operated without challenge. I suggest that what we are involved in here is really about common sense. I have made an argument which cannot be answered in relation to the three amendments.
May I ask Deputy Flanagan, whose amendment No. 4 is related, what is the position?
I am withdrawing amendment No. 4.
Acting Chairman
Is the Deputy asking the House to agree to the insertion of "where practicable" in the section? The Deputy referred to this in his contribution.
Perhaps I could reserve my position until Report Stage.
We are going to take Report Stage now after this Stage.
I will withdraw my amendment in favour of looking at it again on Report Stage.
We will come back and look at it on Report Stage. I do not see that the arguments will change but I will talk again to the director of the Forensic Science Laboratory about the practicable element and the division. I do not expect he will change his opinion on it but I am prepared to have another look at it to try to be helpful to the Deputies and to the House. We can leave Report Stage to another day rather than take it now after Committee Stage.
In that event I will be happy if we take that step. Earlier the Minister suggested we should visit the State Forensic Science Laboratory to see the facilities. I do not want to delay matters unduly but at some stage, perhaps before Report Stage, I would welcome the opportunity to visit the Forensic Science Laboratory through the Minister's good offices.
I am not sure that time will allow us to arrange that visit in advance of Report Stage but I will try to arrange it before then.
Amendment, by leave, withdrawn.
Amendment No. 4 not moved.
Acting Chairman
Amendment No. 5 in the name of Deputy Flanagan has been ruled out of order as it involves a potential charge on Revenue.
It is consequential on amendment No. 4 in any event but I will not dispute the Chair's ruling.
Amendment No. 5 not moved.
I move amendment No. 6.
In page 4, subsection (10), lines 45 and 46, to delete paragraph (c) and substitute the following:
"(11) The provisions of this Act shall not apply to a person under the age of 14 years.".
This amendment was put down with a specific purpose in mind, to challenge the fact that in this day and age we still treat persons of 14 years and under as criminals. In section 2 (9) it is suggested that consent can be obtained on behalf of a 14 year old by the parent or guardian of the person delivering the consent. I am utterly opposed and appalled by the fact that in this society we consider children of 14 years and under as criminals. As a consequence, with or without the consent of the parents, this Bill should not apply to children of that age. It is time we had a fundamental look at how we should deal with children in trouble who are considered to be criminals when taken before our courts. A sad event occurred only one day ago where a young boy of 16 years of age, locked in St. Patrick's Institution, took his own life in desperation.
This helps to illustrate in a very sad and startling way the consequences of applying a code of law which instead of recognising children of a very young age as being in need of care and help regards them as criminals to be prosecuted and dealt with before our courts. It is time we got away from the whole concept of arresting children, taking them to a police station, interrogating them, taking samples, taking them to court, charging them and eventually locking them up. This is a very rare occasion on which this point can be made, and I wanted to make it in the context of this legislation. As I have stated in this House time and time again, children of 14 years and under are not criminals and should not be so treated.
The effect of this amendment would be that the power to require a person to provide a sample could not be exercised where the person is under 14 years of age. It is regrettable that serious offences such as burglary, robbery and assault are committed by children. Deputies will be aware also that boys under 14 years can and have carried out acts which amount to rape. This is the main reason why the irrefutable presumption which exists in law at present that that horrible crime cannot be committed by an under 14 year old is being removed in the Criminal Law (Rape) (Amendment) Bill which is at Report Stage at present.
In the circumstances I believe it is right that it should be open to the Garda to obtain a sample from any person who is suspected of a serious crime whether they are under or over 14 years of age. It must be borne in mind that what is involved in any criminal investigation is finding out who was responsible for a particular act or set of acts. I do not think this process should be thwarted by the introduction of a rule such as that proposed by the Deputy.
I fully accept that when we are dealing with the taking of samples from children cognisance must be taken of their immaturity. For this reason the Bill provides that where a child is under 14 years a sample can only be taken with parental consent. It is natural to expect a parent to be best fitted to act in the interests of a child of that age. Furthermore, it is provided under section 3 (4) that where a parent does not consent to a sample being taken in such circumstances, no adverse inference can be drawn against the child from that refusal. That is a very important protection. I believe that in so far as children are involved the provisions of the Bill are fair and provide adequate and very important safeguards. For the reasons I have given I am opposing this amendment.
I share the Deputy's abhorrence at the idea of crime being committed by children but the unfortunate fact in the real world in which we live is that serious crimes, for example, burglary, robbery and assaults, are committed by children under 14 years of age. Even in the context of the rape legislation which is currently before the House the presumption which exists at present that that horrible crime cannot be committed by a child under 14 years is being removed. Therefore, I cannot accept the Deputy's amendment.
With regard to the young boy who died tragically in St. Patrick's Institution we discussed this matter here last night. I want, as I did last night, to express the sympathy of the House to the parents and family at that terrible loss of life. Unfortunately, such tragedies are not restricted to prison life; they are part and parcel of our daily lives. As public representatives we come across tragedies of premature deaths in our constituencies on a regular basis. I do not want to comment any further on the case referred to by the Deputy as there will be an inquest and an inquiry into it.
In the context of the amendment before us, it is a regrettable fact of life that very serious crimes can be committed by children under 14 years of age. In recognising that fact, we must provide the maximum possible protection and safeguards for these children. Very important safeguards are written into this Bill to protect the rights of 14 year olds. I want to emphasise that it is only with parental consent that a sample can be taken from a child under 14 years of age. If parental permission is not given for such a sample to be taken no adverse inference may be drawn from that at a subsequent trial. This is a very important safeguard.
I do not for a moment seek to deny the unfortunate facts of life in this country and elsewhere, that serious crimes are committed by children of 14 years and under, and I accept the point the Minister made in regard to the rape Bill. My argument is that we do not live in an ideal society; these young children are in need of help and should not be prosecuted before our criminal courts. While recognising the serious crime committed by these children, we, as a community, should be endeavouring to establish a caring system which will help people of this age and not be perpetuating a criminal prosecution process which will render them no better or worse than other criminals dealt with before our courts.
That is the point I wished to make. I do not anticipate that I will win the debate on this occasion. The Bill provides for the application of the most detailed forensic testing and it is remarakable that children between the ages of seven and 14 should be subjected to that kind of regime in legislation introduced in 1990. This is wrong and we should not be doing it. For that reason, I do not think the provisions in this Bill should apply to these children. The sooner we address the fundamentals and recognise the need for an entirely different approach and emphasis in dealing with young children in trouble the better. This was a useful opportunity to put down that marker.
The Government and I share the Deputy's concern about the need to provide care and attention, other than imposing the rigours of the law, for children. This is why the Children's Bill which will protect children will be passed before the Christmas recess. However, side by side with that we also have to protect victims. During the past few weeks we spent two very fruitful days here discussing the rape Bill and making major, progressive changes to it, changes caring for the victim. We recognise that the crime of rape can be committed by someone under 14 years of age. A victim has rights and if the accused in a rape case is under 14 years of age, the position of the victim should be protected as far as possible. If a test can be carried out to prove guilt or innocence, then the victim has the right to that as well. While recognising at all times the rights of the victim we also recognise, even in this legislation, that the child under 14 years must be protected.
For that reason we have the safeguard that it can be only with parental permission and that no adverse inference can be taken in the subsequent trial. I share the Deputy's concern that as a society we must do everything we can to care for and look after the needs of our young people. Side by side with that must be the care and protection of society as a whole.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 7 not moved.
Question proposed: "That section 2 stand part of the Bill."
A very substantial admendment in my name, amendment No. 10, has been ruled out of order. It has profound implications for section 2. Perhaps we can tease this out with the director of the Forensic Science Laboratory. My understanding is that without a criminal evidence Bill which will deal with the whole issue of hearsay and the admission of evidence by way of certificate it will be virtually impossible to make section 2 operable in the courts. In a small way this was illustrated in the recent prosecution of a certain Mr. Haughey where the evidence of the doctor, though delivered to the court by way of certificate, could not stand on its own in the absence of the doctor, on the basis that the proof of what was in the certificate, if challenged, had to be sustained by way of oral evidence.
Amendment No. 10 arises out of the Law Reform Commission reports. This point was mentioned in the report on receiving stolen property. It was not ruled out of order in the context of the Larceny Bill but that is not the case in respect of this Bill. I accept the ruling but I find it curious. Without a criminal evidence Bill section 2 will be virtually inoperable because of the current rules of evidence. It will put a huge onus on the State Forensic Science Laboratory to produce all the people who engage in the whole process. While we agree to the passage of this section, I would urge the Minister to move as quickly as possible in the preparation of a criminal evidence Bill which he told us about during the debate on the Larceny Bill earlier this year so that full effect can be given to this legislation.
The Deputy has referred to the Larceny Bill. Following that debate I circulated proposals to make business and administrative records admissible in criminal cases. I circulated proposals to this effect to other interested Departments for their observations, together with provisions dealing with the competence and compellability as witnesses of spouses of accused persons. Proposals have now been revised in the light of the observations received. I have also added provision to give effect to the recommendation for amendment of the rules of evidence in the recent reports of the Law Reform Commission on child sexual abuse and on sexual offences against the mentally handicapped. As soon as the observations of Departments have been received and dealt with I will seek Government approval to have a Bill drafted. Everything that can be done to speed it up is being done.
Question put and agreed to.
Sections 3 and 4 agreed to.
SECTION 5.
I move amendment No. 8:
In page 6, subsection (2), between lines 38 and 39, to insert the following paragraph:
"(c) make provision for the following:
(i) the attendance, where requested by the detainee, of a solicitor at the taking of any sample or test,
(ii) the obligation of the requesting member to explain fully the right of a detainee to have a solicitor present at the time of the taking of any sample or test,
(iii) the obligation of the requesting member to provide a copy or a portion of the sample or test to enable a detainee or his solicitor to effect an independent analysis or evaluation,
(iv) the provision of clinical conditions and equipment for the proper and safe taking, receiving and storage of all tests or samples obtained,
(v) the video tape recording of all proceedings leading to and arising from the taking of tests and samples, including the actual taking of such tests and samples,
(vi) the establishment of a Central Register of all tests and samples taken in the State,
(vii) the establishment of a National Forensic Bank where all tests and samples shall be safely and properly stored and retained, and
(viii) the establishment of a post of Director of the State Forensic Laboratory and Forensic Bank with sole responsibility for the testing, evaluating and safe and proper keeping of all tests and samples taken under this Act.".
This amendment carries with it a further subsection (c) to the section dealing with regulations and sets out eight matters which I believe the Minister should also provide for under regulations. Some of them have become superfluous on the basis that we have lost the issue with regard to providing for the attendance, where requested by a detainee, of a solicitor at the taking of any sample or test. I understand from the Minister that the 1984 Act allows for that in part, if not entirely. Perhaps it could be dealt with by way of regulation so that the issue could be clarified on an administrative level by the Minister. Other matters refer to what might emerge on Report Stage with regard to the taking or delivering of a sample to a defendant or his solicitor.
The fifth provision is crucial and essential. We have legislated the solicitor out of the room as of right. We have some major difficulties in regard to the delivery of a sample. The only remaining safeguard is that the video tape recording of the taking of forensic samples must be kept for the purposes of viewing by the court to ensure proper standards and fair play. The need for video recording is well established in the area of interrogation, as first dealt with by Circuit Court Judge Barra Ó Briain in his report commissioned by the Fianna Fáil Government in 1977. It established the need for tape and video recording of interviews. It is more strongly dealt with in the 1984 Criminal Justice Act where the Minister is enabled to move in this area when regulations are brought into play. It has been dealt with more recently in the Martin report on the Guildford Four case, where video tape recording was established as an important and inherent concept in the regime of fairness and fair play within police stations. Under this legislation the police station will become far more important, given the powers contained in this Bill, and it is essential that video tape recording be established without delay.
The Minister should advise the House, perhaps to the extent that is relevant, what has become of the Martin report which has been with him for so long, which was delivered to him so rapidly and directly in response to his request. If I am correct I think it has been in his Department almost six or more months while important provisions and recommendations, such as video tape recordings, are left dormant.
Before the provisions of this Bill are implemented — and I have another amendment on the list of amendments contending that its provisions should not be implemented until obligations established thereunder on the Minister are complied with — I contend we should not embark on the use of forensic testing and the taking of samples in police stations until there is the means of a proper independent record available.
I hope the Minister will not advance the suggestion that the intimate taking of samples is something that perhaps should not be recorded by way of video taping. I argue strongly that, in the balance of protection, it is important that the record be there, that it be kept by a proper custodian in the police station and not available for public and salacious view, and is then made available, on request, to representatives on behalf of a defendant and/or the court as and when required. It is in those very confined circumstances that, at any stage, a record will be available. Whereas we have agreed, under the preceding section that a sample is to be destroyed, equally the tape recording can also be disposed of contemporaneously. There will be no question of building up a library of salacious video tape recordings. I hope that argument will not be advanced here. It is a crucial matter and should be dealt with before the provisions of this Bill are implemented.
I argue, in subparagraph (vi) of my amendment for the establishment of a central register of all tests and samples taken in the State. Here I am immediately concerned that locker rooms in police stations do not become recognised as places for the retention of samples. Contrary to what the Minister suggests, my understanding is that, while samples can be taken at the various different stages of investigation, they do not all go immediately or directly to the State Forensic Laboratory.
I have already talked about circumstances in which there can be a delay, when an investigation might range over days if not weeks. Equally I understand that, in some investigations, samples may be taken and, when a charge is not immediately obvious or imminent, the sample need not be delivered, and often is not delivered to the State Forensic Science Laboratory. I argue that the State Forensic Science Laboratory must be recognised as the place of safe repose of all samples and that a central register should be maintained there. This is a very important feature that should be built in to safeguard the proper retention, record and access to samples once taken.
I contend that the proposal is eminently sensible and possible in a country as small as ours. There cannot be any arguments advanced that it would not be practicable, or that it would impose serious obligations on the Garda to have to do so. It is a short journey from any part of this country to the State Forensic Science Laboratory at John's Road. There should be proper, safe retention of such samples because they are crucial. I contend the system must be given all the attributes to enable it to enjoy and retain the highest respect and confidence among all of us.
At subparagraph (vii) of my amendment I seek the establishment of a National Forensic Bank where all tests and samples shall be safely and properly restored and retained — again in the State Forensic Science Laboratory unit at John's Road.
At subparagraph (viii) of my amendment I seek the establishment of a post of director of the State Forensic Science Laboratory and Forensic Bank with sole responsibility for the testing, evaluation and safe and proper keeping of all tests and samples taken under the provisions of this Bill. Dr. Donovan is the obvious appointee since it would involve a small extension only of his role as director of the State Forensic Science Laboratory. I contend that the State Forensic Science Laboratory should also be given that attribute, which it has in any event, but which I argue, under the regulations, should obtain in all cases, so that, whenever a detainee or suspect has had a sample taken, he or she will know that that sample will go post haste into a proper bank where it will be lodged and recorded, where it will be within the safe keeping of the director, and where it will be available for independent access and assessment as and when required.
The day of the locker room, or of such items being left lying in paper bags in rooms in police stations, must be left behind. We are now moving into high technology scientific investigation, when the rights of a detainee — and as Deputy Flanagan said even of the rights of the Garda themselves — can be established on the finiteness of a shift of a decimal point in a test or examination. When we get into that arena of establishing truth beyond doubt, based on the expert and scientist, it is essential that we have a regime clinically safe, sound, respected and trusted by all.
For those reasons I believe these further safeguards should be included in the regulations being provided under the provisions of this Bill and which will be dealt with by a further amendment. Indeed, I contend that such regulations should be brought back before us in this House for debate and that the provisions of this Bill will not be implemented until such regulations have been complied with by the Minister.
As the Deputy said at the outset, we have already discussed a number of provisions under subparagraphs (c) (i), (ii) and (iii) of his amendment in relation to the presence of a solicitor and the question of apportioning samples. As we will revert to that matter on Report Stage, I will not go into that in detail now.
With regard to subparagraph (v) of the Deputy's amendment contending that the taking of samples should be recorded by way of video tape recording, I am sorry to have to disappoint him — I do not think he will be too surprised — but I am going to say that, in my view, I do not think it would be appropriate or practicable. For example, it would seem to me to be completely inappropriate to take a video tape recording of the taking of a swab from a genital area. This is something which I think an accused person would find unacceptable whatever the motivation for so doing.
With regard to the Martin Committee, I replied to a question on this topic in the House yesterday. The committee recommendations in relation to the questioning of suspects in Garda stations — that such should take place with audio-visual recording — is being examined by my Department and the Garda authorities, in particular in regard to the question of introducing the arrangement on a pilot basis in selected Garda stations, as was envisaged by that committee. I can inform the House that that will take place early in the new year.
With regard to the remaining provisions of the Deputy's proposed subsection (c) relating to the taking, receiving and storage of samples, I have a number of times this morning outlined just how samples and materials for forensic testing are treated at present. A garda takes a sample — whether it be he who takes it or the garda to whom a sample is delivered by a doctor — he then generally delivers it by hand to the State Forensic Science Laboratory where it is personally received and entered into the records by a scientist. I will go over the procedure again. I might add it is done in this way because the courts insist on the continuity of custody of such material. There is no question of such material being left lying in a Garda station, or being handled in any slipshod way. Once a sample reaches the State Forensic Science Laboratory, its movements and the tests carried out on it are meticulously logged. These are the arrangements which have obtained since the establishment of the laboratory 15 years ago and have operated successfully, without challenge. I see no need whatsoever to interfere with those arrangements.
Therefore, I oppose the amendment.
I am disappointed that the Minister is opposing my amendment. I would have no objection to subparagraph (v) being qualified to deal with the view of a suspect, if he or she indicated that they did not want the taking of a sample recorded by way of videotape recording. A great number of tests do not involve intimate invasion of the body, and it is an important principle that should be laid down here as a safeguard.
There is no universality in terms of what happens to a sample once taken. No standard procedure is applied. Interestingly, the Minister used the word "generally" in regard to delivery by hand to the laboratory, but there are occasions when it is not and those occasions should not be allowed to exist. We should also have at the laboratory the bank or reservoir for the reception and retention of all the samples and they should be kept there under proper clinical conditions.
For those reasons this legislation should provide for these crucial issues. I do not see the difficulty for the Minister in accepting the concept of a central repository of all samples and that a person would be appointed — or the position that already exists of director of the laboratory would be extended — to cover the bank or repository of the samples once delivered.
I assure the Deputies that the system that has operated for 15 years has stood the test of time. If it is not broken do not fix it. The laboratory have laid down clear guidelines for the handling of samples and the Garda are operating those. In the passing of this very important legislation I would ask the Commissioner in a letter to each member of the force to restate and re-emphasise the importance of sticking rigidly to the regulations and instructions as laid down for the handling of samples, which I think would be appropriate in the light of this legislation.
I do not wish to labour a point which has been well put by Deputy McCartan. My only difficulty with the amendment — if it is a difficulty — is that I felt the Minister's response was going to be that these were matters he was going to incorporate in the regulations. To my disappointment he has not done that. Does he not feel there is an avenue for incorporating the spirit of some of the amendments in the regulations which will be the key to the legislation and which we will be discussing in a few moments?
On the question of videotape recording of tests and samples, I am not convinced that that would be appropriate, necessary or advisable. The system of taking samples in the drunk driving ambit does not provide for videotaping and that system has worked very well over the years.
Let us get a copy.
The Deputy got a copy. I maintain we should get a copy here too, but I do not really feel it would be either necessary or appropriate to videotape all the taking of tests and samples. One must do the best one can in ensuring justice being done and seen to be done, but there are limits from the point of view of practicality. I thought the ones we discussed this morning were really more necessary and more appropriate than this one. The Minister may yet come up with something on that before Report Stage.
However, I would have thought the previous item in the amendment, that is subparagraph (iv) rather than (v) was worthy of perhaps more emphasis. It states that the regulations should make provision for the clinical conditions and equipment for the proper and safe taking, receiving and storage of all tests or samples obtained. I would have thought that rather necessary and appropriate and that the Minister would have wished to make provision for dealing with those matters. For example, some of these samples might require refrigeration or some particular conditions and so on in order that things be done properly.
I know we are not on the section generally but as it stands provision is made for the taking of samples, logging the refusal to give samples and so on, but no provision is made for the disposition of a sample once taken. I expected the Minister to give consideration to adding an additional item in his section under which there would be an obligation to log also in the Garda station particulars of the disposition of each sample taken, in other words indicate how long it was kept in the station, when precisely it was forwarded to the forensic laboratory and so on. Perhaps that could be considered in due course.
In this area I feel I must rely on the guidance and advice of the technical personnel in the Forensic Science Laboratory, but I will have an opportunity of discussing this on Report Stage and in the meantime I hope to have the opportunity of discussing a number of issues with Dr. Donovan and his people in the laboratory as a group. I want the maximum possible consensus on this. We can discuss a number of these issues with them when we are there, consider them, and if it is necessary, come back to them on Report Stage in relation to storage of samples, etc. I will not agree to videotaping but in relation to storage we are working at the moment on guidelines prepared by the experts themselves. If they need to be revised I am willing to be as helpful as possible.
Acting Chairman
Is the Deputy pressing his amendment?
Not at this stage. I will await Report Stage.
Amendment, by leave, withdrawn.
Acting Chairman
Amendment No. 9 in the names of Deputies McCartan and Flanagan. Amendments Nos. 9 and 11 form a composite proposal so Nos. 9 and 11 may be taken together, by agreement. Agreed.
I move amendment No. 9:
In page 6, lines 39 to 45, to delete subsection (3) and substitute the following:
"(3) Where it is proposed to make regulations under this section a draft of each regulation shall be laid before each House of the Oireachtas and shall not come into effect until a resolution approving of the draft has been passed by each such House.".
This amendment is very important and perhaps this will be the last opportunity we shall have to see what regulations the Minister proposes to draft, how he deals with them and how the whole regime will be established for the purposes of the working of this legislation. The Minister proposes that the regulations, once drafted will be laid before the House and will become law unless a motion is moved to disallow them, whereas we are arguing that they should be laid before the House and not come into law until a positive motion is passed accepting them. Of necessity that will require debate at some level in this House.
It is the age-old row. Every legislator does not want to have their regulations reviewed and every Opposition wants an opportunity to look at them and comment on them. The Minister's negative proposition and the way the House works make it virtually impossible for a Member of the Opposition to move an annulling motion, and for my party it is utterly impossible. Even for the Fine Gael Party it is virtually impossible given the way Private Members' time is made available.
I remember in this House a very short time ago debating an amendment to the Intoxicating Liquor Bill when the regulations about giving licences for restaurants were brought before the House and we spent a morning debating them and making some important changes to them. If we can find the time and the political will and desire in this House to debate such an important issue about the regulation of the ante-chambers and seating arrangements of restaurateurs who are to get licences for the sale of intoxicating liquor, then when the regulations are drafted by the Minister, giving vast powers to the Garda to take steps that represent a substantial invasion into the privacy and integrity of the individual, there should be no question about giving the House the opportunity to review them briefly and satisfy ourselves that they are in order, particularly in view of the discussion we had this morning during which the Minister assured us that he would be providing for a lot of the issues we have raised; and seeing that Deputy Flanagan and I have withdrawn amendments in the face of his reasoning and in the hope that we will hear more and understand more about the workings of the legislation after discussions with the director and after consideration of the matter again on Report Stage. I would ask the Minister, in that spirit and because of the way we have shown an earnest concern in this debate, to meet us on this issue and give us the opportunity to look at the regulations when they are drafted and impart our observations and views to him further in the circumstances of the legislation.
As the Deputy says, this is the debate that takes place regularly in relation to nearly all legislation that comes before this House. I am not accepting amendment No. 9 because I do not believe that the type of regulations that will be made under this Bill are such as to warrant the need for positive approval by the House before they come into force. The regulations will not contain any matters of principle but will merely provide for the detailed administrative procedures to be followed in relation to the taking of samples in garda stations. All the necessary safeguards to obviate any abuse of the powers being granted to take samples are provided in the Bill itself.
Let me summarise them for the Deputies. First, a person must be in detention under section 4 of the Criminal Justice Act, 1984, or section 30 of the Offences Against the State Act, 1939 and must be suspected of complicity in a serious offence. Second, the taking of a sample must be authorised by a member of the Garda Síochána of at least superintendent rank who must have reasonable grounds for suspecting the involvement of a person in a serious offence and also for believing that the sample will tend to confirm or disprove the person's involvement in the offence. Third, where a sample is of an intrusive or intimate nature the consent of the person concerned must be ascertained in writing. Fourth, in the case of a person under 17, parental consent would be required. Fifth, blood and other intrusive samples must be taken by a doctor or a dentist as appropriate. Sixth, before a sample is taken the person concerned must be informed of the offence in respect of which the sample is required and that the sample may be given in evidence.
All the most important elements of the procedure to be followed in the taking of samples, including the safeguards I have just detailed, are specifically provided for in the Bill and I do not see the need to require that the regulations, which will only deal with matters of procedure, should first have to be approved by the Houses of the Oireachtas.
With regard to amendment No. 11 it is completely unnecessary. There is simply no question of the powers provided for in the Bill being brought into operation before appropriate regulations are made and I do not see any need for a specific provision to this effect to be put in the Bill.
I am disappointed that the Minister has not departed from recent precedent and allowed the House to discuss the very important aspect of the Bill that will be contained in the regulations. I certainly would not like to call into question the competence of the Garda technical staff or the skills that would be employed. It is important, however, that we would have a step by step account of the exact procedures that will be carried out in a garda station on an arrest under the Criminal Justice (Forensic Evidence) Bill where the taking of a swab or sample is going to be employed.
I would point the Minister to the precedent of the Criminal Justice Act, 1984. There are a number of questions that we did not have an opportunity of discussing at sufficient length on Committee Stage simply because they were matters that would be best left for the regulations.
The exact procedures to be employed, for example, in the sealing of the samples, would have warranted more discussion. Will they be sealed in bottles or plastic bags and will that be done in front of the accused? When will it be done and who will do it? Will it be done in front of the medical supervisor? Is the medical supervisor to stay in the garda station until everybody goes home or until there is a formal arresting procedure or charge laid against the alleged offender? How speedily the tests should be done could be laid down in the regulations. The phrase "as soon as is practicable" has been bandied about somewhat glibly this morning. What exactly does it mean? The procedures that are to be employed by the members of the Garda Síochána in the taking and, indeed, the destruction of samples, are the essence of the legislation. They are to be addressed by regulation and it is somewhat sad that we, as Members of the House involved in processing the legislation, will not have an opportunity to discuss those regulations. That is unfortunate and I would urge the Minister to reconsider the matter between now and Report Stage.
Members on all sides of the House have expressed their support for the Bill. Notwithstanding that the regulations will be of fundamental importance, it would be beneficial to everybody concerned if we had an opportunity to discuss certain aspects of the regulations when published.
Acting Chairman
Is the House agreed that we finish this part of the Bill before lunch? Agreed.
Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 73; Níl, 62.
Tá
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Andrews, David.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Mattie.
- Briscoe, Ben.
- Browne, John (Wexford).
- Burke, Raphael P.
- Callely, Ivor.
- Clohessy, Peadar.
- Connolly, Ger.
- Coughlan, Mary Theresa.
- Cowen, Brian.
- Cullimore, Séamus.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Fahey, Frank.
- Fahey, Jackie.
- Fitzgerald, Liam Joseph.
- Fitzpatrick, Dermot.
- Flood, Chris.
- Flynn, Pádraig.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Harney, Mary.
- Roche, Dick.
- Smith, Michael.
- Stafford, John.
- Treacy, Noel.
- Tunney, Jim.
- Haughey, Charles J.
- Hillery, Brian.
- Hilliard, Colm.
- Hyland, Liam.
- Jacob, Joe.
- Kelly, Laurence.
- Kenneally, Brendan.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Leonard, Jimmy.
- Lyons, Denis.
- Martin, Micheál.
- McCreevy, Charlie.
- McDaid, Jim.
- McEllistrim, Tom.
- Molloy, Robert.
- Morley, P. J.
- Nolan, M. J.
- Noonan, Michael J. (Limerick West).
- O'Connell, John.
- O'Dea, Willie.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Ned.
- O'Kennedy, Michael.
- O'Malley, Desmond J.
- O'Rourke, Mary.
- O'Toole, Martin Joe.
- Power, Seán.
- Reynolds, Albert.
- Wallace, Dan.
- Wallace, Mary.
- Walsh, Joe.
- Wilson, John P.
- Wyse, Pearse.
Níl
- Allen, Bernard.
- Barnes, Monica.
- Boylan, Andrew.
- Bradford, Paul.
- Bruton, John.
- Bruton, Richard.
- Byrne, Eric.
- Carey, Donal.
- Connaughton, Paul.
- Connor, John.
- Cosgrave, Michael Joe.
- Cotter, Bill.
- Creed, Michael.
- Crowley, Frank.
- Currie, Austin.
- D'Arcy, Michael.
- Deasy, Austin.
- Deenihan, Jimmy.
- De Rossa, Proinsias.
- Doyle, Joe.
- Dukes, Alan.
- Durkan, Bernard.
- Enright, Thomas W.
- Farrelly, John V.
- Fennell, Nuala.
- Finucane, Michael.
- FitzGerald, Garret.
- Flaherty, Mary.
- Flanagan, Charles.
- Harte, Paddy.
- Higgins, Jim.
- Howlin, Brendan.
- Kavanagh, Liam.
- Kemmy, Jim.
- Kenny, Enda.
- Lowry, Michael.
- McCartan, Pat.
- McCormack, Pádraic.
- McGinley, Dinny.
- Mac Giolla, Tomás.
- McGrath, Paul.
- Mitchell, Jim.
- Moynihan, Michael.
- Nealon, Ted.
- O'Keeffe, Jim.
- O'Shea, Brian.
- O'Sullivan, Gerry.
- O'Sullivan, Toddy.
- Owen, Nora.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Reynolds, Gerry.
- Ryan, Seán.
- Shatter, Alan.
- Sheehan, Patrick J.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
- Taylor-Quinn, Madeleine
- Timmins, Godfrey.
- Yates, Ivan.
Tellers: Tá, Deputies V. Brady and Clohessy; Níl, Deputies Byrne and McCartan.
Question declared carried.
Amendment declared lost.
Section 5 agreed to.
Sections 6 and 7 agreed to.
SECTION 8.
Amendments Nos. 10 and 11 not moved.
Section 8 agreed to.
Title agreed to.
When is it intended to take Report Stage?
It is intended to take it on Tuesday, 4 December 1990, subject to agreement between the Whips.
Report Stage ordered for Tuesday, 4 December 1990.
Sitting suspended at 1.45 p.m. and resumed at 2.30 p.m.