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Dáil Éireann debate -
Tuesday, 3 Mar 1992

Vol. 416 No. 6

Criminal Evidence Bill, 1992: Second Stage.

I move: "That the Bill be now read a Second Time."

The Bill proposes to reform the law of evidence in four important respects. It makes it easier for children and persons with mental handicap to give evidence in cases of physical or sexual abuse; it sets out clearly the circumstances in which the spouse or a former spouse of an accused person is to be competent or compellable to give evidence; it makes business records admissible; and it will help to bring to justice persons who commit crimes against tourists.

The most important of the reforms is that affecting the giving of evidence in child abuse cases and I will deal with that first. What I have to say applies also to another vulnerable category — persons with mental handicap, irrespective of their age — but for convenience I will refer only to children in this context.

At present there are serious difficulties where children are required as prosecution witnesses in cases of physical or sexual abuse. The child may be too young to give evidence at all and no prosecution can be taken. Even where the child can give evidence the court appearance may be disturbing and harmful. It involves facing the accused again in the atmosphere of a crowded courtroom. It involves the ordeal of examination and cross-examination. There is sometimes the need to denounce a loved relative and also, perhaps, the possibility of a future threat from the accused. Understandably, there is a desire to shield children from such an experience, often leading to a failure to report or prosecute the crime. That situation encourages further abuse.

The Law Reform Commission carried out extensive research into this problem, including a study of the measures adopted in other countries. They published their conclusions in a consultation paper and, after considering a large number of submissions, published their final report in September 1990. The provisions of Part III of the Bill are based on the recommendations in that report.

Part III provides that persons under 17 may give evidence in cases of this kind by live television link and that, in an appropriate case, questions to those witnesses may be conveyed through a competent person appointed by the court. While evidence is being given, wigs or gowns will not be worn by the judge or by the barristers or solicitors concerned in the examination. Moreover, it will not normally be necessary for the witnesses to identify the accused again in court if they have already done so during the investigation. If their evidence at the preliminary examination of the offence has been videorecorded, the videorecording will be played at the trial and so it may not be necessary for them to give further evidence.

Arrangements are being made to have the necessary technical facilities installed in the Four Courts this year to enable evidence to be given there by live television link. The system will then be extended to a courthouse in the south and in the west of the country and will be further extended later in the light of experience. In the meantime, provision is being made in section 16 to enable courts in areas without these facilities to transfer cases of this kind to areas which have them.

There appears to be general agreement that a contemporaneous account of events is frequently more accurate and detailed than one given much later in court, particularly in the case of child witnesses. The Bill recognises this in providing that the evidence of children in these cases should be given at the preliminary examination of the offence rather than at the trial itself, which may be many months later. It also makes admissible a videorecording of an interview with qualified people, which very often takes place shortly after the alleged offence, provided that the alleged victim is available for cross-examination by the accused.

Changes are also being made as regards the competence of children as witnesses. The present test of competence is whether the child has sufficient intelligence to justify the reception of its evidence and understands the duty of speaking the truth. The Law Reform Commission reviewed the available psychological evidence on children's competence and came to the conclusion that the witnessing powers of children may have been seriously under-estimated by existing law. It expressed the view that children's ability to answer questions about witnessed or experienced events is better than both the law and common belief has up to now recognised. It said that even very young children can respond to the demands of testimony when questions are posed in a way appropriate to their stage of development.

The commission accepted that in this area it would not be easy to arrive at a solution that would command universal acceptance. On the one hand, the commission were impressed by the force of the contention that the account of the victim of an offence should at least be heard during the course of the trial, even where he or she was too young to understand the concept of being under an obligation to tell the truth. But it said that, as against this, the danger of convicting an innocent person on the uncorroborated testimony of an immature child who did not understand the difference between truth and falsehood could hardly be over-estimated.

The commission thought that the balance of the argument was, on the whole, in favour of confining the test of competence to one limited to ascertaining whether the child had the necessary verbal skills to give an account of the relevant events that was intelligible to the court. They said that they had carefully weighed the risk that innocent people might be convicted on the uncorroborated testimony of immature children but were satisfied that, given the inherent safeguards of the criminal process itself, the possibility of any serious miscarriage of justice occurring was so remote that it could reasonably be discounted.

The commission recommended accordingly, that the court should continue to make the ultimate decision as to the competence of children to give evidence. The test of competency should be the capacity of the child to give an intelligible account of events which he or she had observed. The Bill gives effect to this recommendation in section 26.

In accordance with other recommendations of the commission, the present requirement that a child's unsworn evidence be corroborated is being abolished, as well as the requirement that the jury be warned about convicting on a child's sworn but uncorroborated evidence.

These are very substantial changes in the law of evidence in criminal proceedings. They are however paralleled in many other countries where, as here, the extent of physical and sexual abuse of children has been underestimated and where the existing law has made it difficult, and in many cases impossible, to bring offenders to justice. The new provisions provide a challenge to judges and the legal profession but I have no doubt that they will surmount any initial difficulties in the operation of the new legislation.

The second aim of the Bill is to set out clearly the circumstances in which the spouse or former spouse of an accused person is competent or compellable to give evidence. For example, a wife will be obliged to give evidence for the prosecution if the husband is accused of violence against her or of violence or a sexual offence against a child.

In this respect the Bill departs from the recommendations of the Law Reform Commission in its Report on Competence and Compellability of Spouses as Witnesses. In that report the commission recommended that it should be a general rule that a spouse is not compellable for the prosecution where the other spouse is charged with a criminal offence. However, the recommendation was given before the decision of the Court of Criminal Appeal in 1988 in the case of The People v. JT. In that case the court held that any provision that purported to provide that a wife was not a compellable witness in charges against her husband of sexual assault on his daughter would be unconstitutional. Other passages in the judgment suggest that any statutory restrictions on the compellability of a spouse for the prosecution in cases of attack by one spouse on the other would also be found to be unconstitutional. Accordingly, the Bill makes the spouse of an accused compellable in the case of domestic violence or of a sexual offence against a child of the marriage.

The Bill provides also that a spouse will be compellable where the other spouse is accused of offences involving violence or sexual offences against any person under 17 years, whether a member of the family or not. This extension of compellability is based on the vulnerability of children and young persons to physical and sexual abuse and on the need to give them special protection.

These are the only circumstances in which the spouse of an accused person will be compellable to give evidence for the prosecution. A spouse will not be compellable in cases where the other spouse is accused of offences such as larceny, fraud and the like.

The position of former spouses in this regard is also clearly set out. They will be compellable for the prosecution in all cases except where the offences in question were committed during the period of the marriage and were of a kind for which a spouse would not be compellable. I should say that for the purposes of the Bill "former" spouses includes a spouse who is still married but legally separated.

This Part of the Bill seeks to provide a reasonable balance between the interests of protecting the institution of marriage and of protecting and vindicating the rights of spouses and children who are the victims of offences. It therefore provides that the spouse of an accused will be compellable for the prosecution and a co-accused only in cases of violence or sexual offences but will be compellable for the accused in every case.

Part II of the Bill, relating to documentary evidence, is based on recommendations of the Law Reform Commission in its Report on Receiving Stolen Property. These provisions are of particular significance in relation to the successful prosecution of offences such as fraud. They remedy a serious deficiency in our criminal procedure caused by the fact that at present documents are not admissible as evidence, apart from a few exceptions, such as social welfare records and bankers' books. Moreover, most commercial records are held nowadays on computer and there is no provision for the admissibility of computerised records, apart from the exceptions I have just mentioned.

The Government are conscious of the need for reform of the law in this area and, when the commission's recommendations on the law of dishonesty are received, their implementation will be given priority.

The documents that are now being made admissible are those compiled in the ordinary course of business or administration on the basis of information supplied by someone with personal knowledge of the matters dealt with. Computer printouts are admissible provided that they have been produced in the course of the normal operation of the computer concerned.

However, the Bill excludes documents prepared in contemplation of legal proceedings and documents that are privileged from disclosure — such as those covered by legal professional privilege — as well as documents containing information supplied by a person who would not be compellable to give evidence in the proceedings concerned. But, exceptionally, it does make admissible such documents as maps, photographs, records of directions by members of the Garda Síochána, records of medical examinations and records of the handling of evidence. I should emphasise that, with one exception, the documents being made admissible under the Bill may be given in evidence by either the accused or the prosecution. The exception is a record of any direction given by a member of the Garda Síochána under an enactment.

In order to ensure that neither party to the proceedings is taken by surprise, it is being provided that a party wishing to give a document in evidence must give advance notice to the other party. The notice must be given at least 21 days before the trial begins unless, in the case of the prosecution, the document has been included in the book of evidence. The other party can signal its objection to the admissibility of the documentary evidence by serving a notice of objection at least seven days before the trial begins, so that the party receiving the notice can decide whether to summon the witness, if available, to attend and give oral evidence. If the notice of objection is not served within the time specified or at all, then objection can be made at the trial to the admissibility of the evidence only with leave of the court.

Before a document can be admitted in evidence under this Part of the Bill the party producing the document must prove that it satisfies the conditions for admissibility specified in section 5. Provision is made in section 6 for this proof to be given by way of a certificate from a person who is in a position to give it. However, the court may require oral evidence to be given of any matter stated or specified in the certificate and it must do so where a notice has been served objecting to the admissibility of the whole or part of the information contained in the documents.

Section 8 is a key provision. It provides that no documentary evidence will be admissible by virtue of section 5 if the court is of opinion that in the interests of justice the whole or any part of it ought not to be admitted. The section spells out the considerations to which the court must have regard in reaching a decision on this point, including the likelihood that the information is reliable and that the document is authentic and also to any risk that its admission or exclusion would result in unfairness to the accused. In other words, documentary evidence may be admissible under the Bill but whether it is actually admitted is entirely under the control of the court which is obliged to exclude it if in the interests of justice it ought not to be admitted.

As I see it, this Part of the Bill will save a great deal of court time in the case of documents whose authenticity and probative value are not contested. Where any of these matters is disputed, and oral evidence can be produced by the party producing the documents, that oral evidence will be forthcoming when a notice of objection is received to the admissibility of the documents. In the remaining cases, that is, where the documents are contested and witnesses are dead or otherwise not available, the court will allow the documents to be admitted only if that would not be contrary to the interests of justice and it will pay particular attention to whether their admission would be unfair to the accused or, if it is the accused who has tendered the document, whether its exclusion would be unfair to him or her.

The final aspect of the Bill to which I would like to draw attention is the provision made for the protection of tourists who have been the victims of crime. At present the only way in which such a tourist can have a written statement by him read at the trial of the accused is to have it taken in the presence of a district judge and of the accused. That procedure is set out in section 14 of the Criminal Procedure Act, 1967. While the sworn deposition is being made the accused has an opportunity of cross-examining the tourist. Section 15 (2) (b) of that Act provides that, except where the witness has died, the deposition may not be read at the trial if the judge considers that to do so would not be in the interests of justice.

Obviously, this provision is of little or no value to a tourist who has to leave the country before the alleged offender is apprehended. Or the tourist may be still in the country but it would not be practicable for him to attend a formal hearing of this kind. Section 5 (4) (a) of the Bill provides therefore that in such circumstances the victim may make a sworn statement before a district judge in any case where it would not be possible or practicable to avail of the present procedure. Such a statement will now be admissible at the trial of the alleged offender but, as in the case of a sworn deposition under the present law, it will not be admitted if the court is of opinion that in the interests of justice all or part of it ought not to be admitted.

Further provision for enabling a tourist who has returned to his own country to give evidence is contained in section 28. That section provides that a witness outside the State may, with the leave of the court, give evidence through a live television link.

I expect that both these measures will give greater protection to tourists against criminals who may have seen them as soft targets because of their inability to prosecute cases against them in court.

Part V contains a number of miscellaneous provisions. I have already referred to some of them, such as the abolition of the necessity for young persons to take the oath, and section 28, which enables evidence to be given from outside the State by means of a live television link.

I have mentioned section 28 as being relevant in relation to the prosecution of crimes against tourists, but of course it has a far wider significance that that in present circumstances, when international crime is on the increase. There are various international conventions aimed at providing mutual assistance between countries for the purpose of prosecuting crime, such as facilities to enable evidence to be taken in one country for use in proceedings in another. In legislation which I will be bringing forward shortly I will be dealing with that matter. While these conventions do not so far refer to giving evidence across frontiers by video links, I am sure that that will be a coming feature of inter-state arrangements and section 28 will enable us to take part fully in such a development.

It will be clear from what I have said that the Bill makes extensive changes in the law of evidence governing criminal proceedings. In so far as it deals with evidence relating to child abuse, domestic violence or offences against tourists it seeks to provide a better balance between the rights of victims of crimes and those who are accused of committing them. Article 40.3 of the Constitution obliges the State by its laws to protect as best it may from unjust attack — and, in the case of injustice done, to defend and vindicate — the personal rights of every citizen, including in particular his or her life, person and property rights. In this Bill the Oireachtas is endeavouring to discharge that obligation not only in relation to our citizens, and especially the most vulnerable of them, but also to non-citizens who are equally entitled to those fundamental rights.

Before concluding, I should like to put on record my appreciation of the valuable work done by the Law Reform Commission in producing the reports on which the Bill is based, namely the reports dealing with sexual abuse of children and the mentally handicapped, receiving stolen goods and the competence and compellability of spouses as witnesses.

This is in no way a party political measure and I am sure that its aims will be supported on all sides of the House. I want to assure Deputies that any suggestions they make in the course of the debate will be carefully considered by me between now and the detailed examination of the Bill on Committee Stage.

I commend the Bill to the House and ask that it be given a Second Reading.

As this is the first formal Bill introduced to the House by the Minister since his appointment as Minister for Justice, I congratulate him formally on that appointment. I am pleased we are taking this Bill because it is a very important measure. Some aspects of it derive from the Law Reform Commission Report of 1985, as well as the Law Reform Commission's most recent report on sexual abuse.

I want to deal first with aspects relating to the Bill which have been in the forefront of public comment in recent days and the politics of illusion or the Alice-in-Wonderland approach which appears to be adopted to legislation. One of the major issues in this legislation is the whole area of sexual abuse, in particular child sexual abuse. There is widespread concern about the instances of child sexual abuse which are taking place. Statistics during the eighties seem to show an ever-growing increase in the problem. That problem must be addressed not only in relation to the laws of evidence but in relation to the totality of our laws.

It appeared that this House was coming to terms with some of the needs in these areas in legislation which was passed but which has not been implemented. The Child Care Act, 1991, which was passed in June of that year, imposes new obligations on health boards and seeks to provide protection for children at risk, particularly children who are victims of sexual abuse. It is deplorable that this legislation, passed over eight months ago, is not yet operational. It will not become operational in this and in other areas until ministerial orders are made to bring it into force. This is not the fault of the Minister for Justice; this legislation falls within the area of responsibility of the Minister for Health. It is, however, the fault of the Government who are collectively responsible for the failures in this area.

It is not only misleading to the general public but is becoming exceedingly dangerous because people start believing that legislation enacted in this House is actually in force. It is dangerous that we pass legislation in this House which does not come into force by a specific date stated in the legislation as enacted. Too many important Bills come before this House with provisions contained in them to the effect that they will not become operative until a ministerial order is made bringing either the entirety of an Act into force or specific sections or parts of it.

This House is passing legislation which does not become operational and does not provide additional protections which the Government press office in their wisdom seek to pretend are coming into operation. It means that this House loses control of the legislative process.

This House has lost control of the Child Care Act, 1991. We cannot bring it into force and we are dependent on this Government deciding that the time has come to make the orders necessary to extend to children the protection to which they are entitled. In providing children with protection against sexual abuse we are still operating under legislation passed in 1908. I say that with some anger as a Deputy who laboured for many months with other Deputies present today on the Committee Stage of the Child Care Bill. We went through that legislation with a fine tooth comb and many substantial amendments were made to it. It came out of the legislative process a far better Act than when first published. That was because we had a constructive approach to that Bill such as the Minister appears intent on providing with regard to this Bill. We should not be party to legislation that does not have immediate effect or at least what I would describe as a "sell by" date built into it. It may be necessary to put new administrative procedures in place before legislation passed by this House can become operational. If that is the position, the legislation should expressly state that within three, six or nine months it will come into force.

In the area of child sexual abuse we have the Criminal Justice (Forensic Evidence) Act, 1990, which was passed in December 1990. On last Thursday's RTE news bulletin we had a wonderfully glossy presentation of the benefits that will derive from this legislation which seeks to provide for genetic fingerprinting when it becomes operational. This presentation, no doubt inspired by the Department of Justice, can best be described — although I know the Department were not involved in making the film — as a Department of Justice sponsored documentary in praise of Government which one would have expected to come from one of the east European States before the recent political upheavals; in fact, it was worthy of the Communist Governments of Soviet Russia. It extolled the benefits of genetic fingerprinting as if we had never heard of it before, as if we had not debated the issue in the House almost a year and a half ago, and enacted legislation to provide for it.

We were told, with much excitement by the commentary which went with this glossy newsreel that genetic fingerprinting would be available soon to assist the Garda. This was supposed to be a cause of excitement. Far be it for me to suggest that this glossy newsreel was stimulated by the Department of Justice due to the embarrassment felt by the uncertainty in the Garda Síochána as to whether DNA fingerprinting could be undertaken in the case of the 14½ year old girl who was an alleged rape victim and whose court proceedings were determined in the Supreme Court last week. The Garda were reported as saying that yes, a DNA sample can be taken to determine the perpetrator of the alleged rape and no, it can not be taken. There was much learned legal comment which had an equal diversity of views.

No doubt this glossy documentary was designed to say that the Department, the Minister and the Government were on the ball. The only ball they were kicking was the ball of political hype. The news reporter who was responsible for the report — a gentleman for whom I have a great deal of respect — seemed to run away with his sense of enthusiasm. He seemed to think that telling the nation this would become operational soon was a cause of great interest. The Taoiseach, two weeks earlier, when asked in this House if that legislation would become operative, first, said he did not know and then that it would become operative soon. I think what came out of that newsreel was that this legislation might come into force towards the end of this year — approximately two years after the legislation was passed by this House.

If we are serious about dealing with child sexual abuse, let us bring, first, the Child Care Act into operation and, second, the Criminal Justice (Forensic Evidence) Act into operation immediately. There is absolutely no reason the Act passed over 14 months ago, should be lying dormant, gathering dust on the shelves of the Department of Justice, while somebody gets their act together to bring before this House the regulations necessary to make it operational. It should not take that long to bring those regulations before the House. That Act is a victim of the "sell by" approach I am talking about in the child care legislation; none of it comes into force until the Minister makes the order. This House has lost control over the Child Care Act and the Criminal Justice (Forensic Evidence) Act.

In the context of this Bill, my concern is that Part III of this Bill — which I will be addressing in some detail — has inbuilt the same difficulty. In recent days the Minister has gone to press in relation to this legislation, which was published on 31 January. Apparently the news media only discovered it around last Wednesday or Thursday, and the Minister is getting substantial praise for the publication of this legislation which, I think I am right in saying, was published by his predecessor; so they both deserve praise for it.

Part III is of substantial importance in changing the law with regard to giving evidence in cases of alleged sexual offences, be they in relation to children or otherwise. In so far as Part III is being lauded as a major reform, I would put a large warning beside it because section 1 (3) states that Part III will only come into operation on such day or days as may be fixed by the Minister. The first question I put to the Minister is — I hope he will respond at the close of the Second Stage debate — when will Part III come into force? Is it intended to be brought into force in six weeks, two months, six months or whatever? Will it be in force by this time next year? The hype given to the Bill in the national media over the last few days seems to lead everyone to believe that within a couple of weeks this Bill will be enacted and will come into operation. That is clearly not the case with regard to Part III.

In his speech the Minister said:

... arrangements are being made to have the necessary technical facilities installed in the Four Courts this year to enable evidence to be given by live television link.

On the genetic finerprinting Bill I recall the Minister's predecessor telling us that the gardaí would have the necessary forensic facilities made available to them domestically within a matter of months of the Bill being passed. Last week in the glossy newsreel we discover that the Garda are just learning about it and are about to set up the forensic laboratory, which may be functioning by the end of the year. I hope the Minister's aspiration to provide for the television link facility in the Four Courts by the end of the year can be met. I am putting him on notice that I will be tabling an amendment to this Bill to require that Part III of the Bill come into force within a specific stated time of the passage of this Bill through both Houses of the Oireachtas rather than waiting for ministerial orders to be made. I do not have confidence that those ministerial orders will be made this year, and I am not totally convinced they will be made next year. I do not know whether the diffficulty arises due to the bureaucracy in the Department of Justice, the lack of funds or difficulties in the Attorney General's Office. I would not go so far as to suggest a lack of political commitment. I am prepared to accept that the Minister would wish this Bill to become operative otherwise he would not bring the legislation before the House. There would be no point doing it unless, of course, we were merely making public play about concerns of a serious issue while knowing that the reality was that we are somewhat spancelled for financial or other reasons from implementing measures which everyone regards as desirable.

I hope we are dealing with Part III of the Bill in a serious way and that we are talking about legislation that will become operative within a relatively short period following its passage through this House. I would be prepared to accept that it may take two or three months to set up the facilities necessary, but if we are to have these facilities, I suggest the Department get on with the work. The provision of these facilities does not require the passage of this Bill. The final report of the Law Reform Commission in this area was published in 1990 and there was nothing to prevent the Department of Justice during 1991 or even at this stage setting up these facilities.

I am somewhat concerned about the suggestion that the facilities will be in the Four Courts. Surely the intent of Part III of this Bill is to take some of the fear out of this type of court proceedings in the context of the child who is the alleged victim of a sexual assault. My understanding is that the intention is to make the panoply of the legal justice system appear more humane and less intimidating to a child who has to give evidence about matters that are deeply distressing.

It is my understanding that the intention, as detailed by the Law Reform Commission and, in fairness, in the Bill, is to allow a child to feel at ease, in so far as this is ever possible, in providing background factual information as to incidents in which the child has been involved and to enable the child to truthfully but simply explain events that have taken place. If that is the case, it would be my suggestion, if we are talking about cases involving allegations of child sexual abuse, that these cases should not be heard in the Four Courts or in the Central Criminal Court. We have already recognised the need in the family law area to deformalise court buildings and structures to some extent. In Dublin, both the High Court and the Circuit Court can hear family law cases involving distressing family matters, marriage breakdown and disputes over custody of children in a less formal atmosphere in Áras Uí Dhálaigh away from the hurly-burly of the Four Courts and gardaí who bustle into criminal trials with people handcuffed to their wrists.

It is my suggestion, if we are to recognise the need to deformalise these court structures, taking nothing away from the criminal justice system and the need to get at the truth, that there is no particular reason court cases involving criminal allegations of child sexual abuse should not be heard outside the precincts of the ordinary court system and dealt with in the less formal atmosphere of the family court system. Indeed, if we are talking about a child giving evidence through a television link in a criminal trial in the Four Courts or the Central Criminal Court it would be my suggestion that the television link should not be in that building. There is no reason the television link could not, for example, be in Arás Uí Dhalaigh, if we are talking about Dublin, or somewhere else. I also suggest there is no reason we should bring the child into the Four Courts building. Indeed, children should be kept out of that building. This can only add to the upset and the distress.

I make the same point in relation to the south and west of the country. I do not know what courthouses the Minister is thinking of designating for the court link — he might reveal this to us — but while some of our courthouses are in fairly good repair, others are in a dreadful condition and lack basic facilities and consultation rooms. Again, I suggest if we are to have criminal trials of this nature in the Circuit Criminal Court and in other courts outside the Dublin area, it would defeat the purpose of the television link if we were to require a child to go into the court building and simply sit in another room. These television links should be provided outside the basic court structure.

In relation to the Bill there are two matters which need to be dealt with. In the context of Part III it is important we take out of the court proceedings the feeling of intimidation a young person or child may suffer. I would equally argue in regard to cases of sexual abuse or rape, if it is appreciated that someone under 17 years of age should be given special facilities in giving evidence through a television link, that consideration should be given to providing a television link where it is alleged that sexual offences, such as rape, were committed against someone over 17 years of age. A woman over 17 years of age who has been raped will find it an appalling event to have to walk into a courtroom and give evidence while being watched by the person she has alleged raped her. If it is justifiable to provide a television link for a 16 year-old why is it not justifiable to give this facility to an 18 year old? We need to seriously consider that matter.

Apart from the question of creating a less intimidating atmosphere in giving evidence we have to maintain a balance and make sure that in prosecuting such cases we do not in our enthusiasm to provide the necessary protection for children, women and girls create a situation where the presumption of innocence is reversed to a presumption of guilt. We have to ensure we do not within our criminal justice system create a situation where as soon as anyone makes an allegation of sexual abuse or rape it is instantly assumed, and the law acts on the assumption, that the person who it has been alleged has offended has actually offended. I have no doubt that cases have arisen from time to time where false allegations were made. I have come across this in the family law area where a bitter dispute between a husband and wife over the custody of a child did lead on occasion to a parent making very serious but false allegations of sexual abuse against the other parent. This was done for the simple purpose of destroying that parent's reputation with a child or children and to stop that parent being granted visitation or access rights to a child when the other parent has custody. There have been such instances and, indeed, there are court judgments on them.

There have also been instances where when health boards sought to take children into care allegations of sexual abuse were made which were subsequently established to be incorrect when the matter was determined within our courts system. Therefore, we must be careful when providing protection for children and women who have been raped or sexually abused that we also preserve a balance and not tip it over to such an extent that we have serious miscarriages of justice which result in people being sentenced to terms of imprisonment for acts they have not committed. All the remarks I will make on this Bill will be based on the two premises, the need to provide protection for children while preserving a balance and not turning our criminal justice system on its head and creating a presumption of guilt whenever an allegation is made.

In relation to the need to create a less intimidating atmosphere in court proceedings, I wish to refer to the Law Reform Commission's final report of 1990 on child sexual abuse. Their suggestion in relation to the facilities which should be provided for a child is somewhat different to the suggestion made by the Minister, that we simply have a televised link in the Four Courts. I presume that envisages a child sitting in one room in the Four Courts and the trial proceeding in another room. There would, however, be the inevitable danger that if the child leaves the room at the wrong time he or she might bump into the person who has been accused of a criminal sexual offence. The Law Reform Commission in their report, quote with some approval an extract from a report of the Scottish Law Commission which refers to the use of the television. They stated:

From the technical point of view the important features of the systems which we have seen are, first, that they are entirely automatic and do not require the attendance of camera operators and technicians, and second, that they provide both the judge and counsel with an opportunity to watch not only the child but also others as well. So far as the child is concerned, he or she is placed in a room near to the court room. That room is carpeted and simply but agreeably decorated and finished. The child sits at a table, accompanied by a parent or other supporting adult, and facing the child is what appears to be an ordinary domestic television set. In fact the set will have either a concealed camera built into it, or a small camera clipped on top of it.

It is my suggestion that the pleasantly carpeted room should not be next door to the courtroom where the trial is taking place. If we are to provide a technical facility there should be some distance between the two and if we are going to implement this system we should do it right.

I welcome the provisions of section 12 (3) which states that when evidence is being given through a live television link, through which presumably the child will see the person asking the questions, neither the judge nor the barrister or solicitor concerned in the examination of the witness shall wear a wig or gown. Given that this is the first legislation which will curtail the enthusiasm of the Bar Library in relation to the wearing of wigs and gowns I should put it on record that solicitors do not wear wigs. I have come across the occasional old fashioned solicitor in rural areas who is still somewhat taken by wearing a gown but, presumably, the only type of wig a solicitor wears is a toupee. However, we are talking about the type of wigs which barristers traditionally wear and I welcome this provision in the legislation.

It, of course, mirrors the provision we included in the Judicial Separation and Family Law Reform Act, 1989. Whereas the provision in the 1989 Act is widely obeyed by most judges and counsel, it is still not obeyed throughout the country. I get reports that some Circuit Court judges have a psychological disability in relation to taking off their wigs; there are also barristers who, physiologically or psychologically, find it difficult to come to terms with not wearing a wig. I have not been in the courts of judges who have this difficulty in regard to wigs and, no doubt, if I appear there wearing my lawyer's hat my presence will not be greeted with a round of applause or too much enthusiasm. There are also members of the Bar Library who find it difficult not to wear their wigs and gowns. There should be an express provision in this legislation to the effect that a failure to disrobe should invalidate a trial. There is a different legal terminology which I am trying to think of but we should put in an express penalty of which everyone will be conscious. I do not think that any judge would like to see a sentence handed down for child sexual abuse — or any other sexual offence — overturned by the High Court or another court because the judge felt it was necessary to sit in court wearing 17th century regalia. No member of the Bar Library could justify that.

It was assumed when the 1989 Act was passed that, at the very least, the Judiciary would comply with it without having to suggest any form of penalty. I am not suggesting that judges should be sent to jail or fined but there should be a provision in this Bill stating that if a trial took place in circumstances where wigs and gowns should not be worn — and where they were worn — the result of the trial should be rendered null and void by a failure to comply with the provision. That would resolve whatever remaining psychological difficulties there are within the judicial mind or the Bar Library about the wearing of wigs and gowns. Indeed, if I had my way, I would ban outright the wearing of wigs and gowns in toto for all court proceedings. I do not know to what extent wigs and gowns add to the cerebral rumblings of the legal profession or to the dignity of court procedures but I suggest that if Members of this House felt the need to continue to wear the regalia worn in the House of Commons at the turn of the 18th century, we would be regarded as odd. I do not know why the legal profession think it necessary to wear wigs and gowns. I have never been ill at ease in a courtroom without one or incapable of representing the interests of clients. Let us have this provision in section 12 (3) but also provide some sort of penalty to ensure that it is complied with. The Minister should take his courage in his hands and put a provision in this Bill — or in a future Bill — which, once and for all, abolishes the wearing of wigs and gown for judges and barristers.

Section 13 is particularly important. As I understand it, it is probably designed to implement a recommendation of the Law Reform Commission contained in paragraph 7.26 of their report on page 78 where there is a reference to a "child examiner", although we do not refer to this in the Bill. Section 13 provides for an intermediary in certain circumstances to conduct the cross-examination of a person where that person is accused of an offence, which is mainly a sexual offence or one of violence, and if the person is under 17 years of age and giving evidence. It says that the court may, on the application of the prosecution or the accused, if satisfied that, having regard to the age or mental condition of the witness, the interests of justice require that his cross-examination or re-examination, or any part thereof, be conducted through an intermediary, direct that any such examination be so conducted. I have some reservations about this. I am fully in favour of using the television link but the Minister should clarify section 13. How will it work? If someone is accused of a serious offence, of an assault or sexual assault, and their counsel has instructions to cross-examine someone to elicit the truth, and that person is denying that he or she has committed this assault, if a series of questions is to be put to a witness to tease out the truth, will the counsel for the accused whisper questions to an intermediary who will ask them in exactly the same language? Will the counsel for the accused provide a series of written questions for the intermediary to put to the witness? In what way can the questions be followed up? If a reply comes back that no one has anticipated, how does the instant cross-examination take place? I have already said I am concerned about some of the pressures put on people who have been the victims of these appalling events but there is substantial concern that we could, by doing that, wrongly send people to jail for offences they have not committed. I do not know how this proposal in relation to an intermediary will work in practice and I have considerable worries and reservations about it.

The intermediary is to be a person appointed by the court who, in the opinion of the court, is competent to act as such. Will the intermediary be a member of the legal profession? Will it be a social worker, a barrister, a friend or relation of the victim? Presumably it will not be a friend or relation of the accused. What qualifications will an intermediary have? Will it be an ordinary GP? Should it be a child psychiatrist? What is their function? Will they repeat questions which the prosecution or the defence want to ask? When this Bill is passed I should not like to see that there are sections in it which are unworkable; we can bring Part III into force by one ministerial order or not bring it in at all because of defective provisions. I have no doubt that this is well-meant, and I am not criticising the Department, the Minister or the draftsman. However, there are substantial problems in regard to the application of that in a court trial provision.

I presume that the provision is designed to deal with the recommendations contained in page 78 of the report of the Law Reform Commission. Paragraph 7.26 of the report states:

It will take time to train examiners, whether they be lawyers acquiring psychological skills or vice versa. However, the law should provide at once that, although cross-examination by one's own lawyer would continue to be the norm for the time being, the court should have power to appoint an examiner, for special reasons, on the applications of the DPP.

We recommend that the accused should continue to be entitled to cross-examine the alleged victim himself or through his counsel or solicitor at the deposition stage and (when the presence of the child is required) at the trial, except where the court is satisfied that, having regard to the age and/or mental condition of the alleged victim, the interests of justice require that the cross-examination be conducted through a child examiner, in which event the examiner would be required to put to the alleged victim any question permissible under the rules of evidence requested by the defence.

Child examiners should be experienced in interviewing children and specially trained in child language, psychology and the relevant law with particular emphasis on the law of evidence.

I do not know how we are going to implement this proposal. So far as I am aware, we do not have such people. I do not see how it can work. I do not see how it would be less intimidating for a child examiner, so called, to put a question than it would be if the lawyer put exactly the same question. The approach here is that lawyers should be put under a specific duty in cross-examining somebody who is alleged to be a victim of such an offence to have regard to the tender years of the victim. Indeed, courts will control the approach of a lawyer in cross-examination when dealing with young people if there is a perception that what is happening is merely an attempt to upset someone who is truthfully giving evidence rather than getting at the truth. We are trying to prevent young people and children who have been the victims of abuse or assault from being frightened by the legal system and lawyers.

I have a very real and serious concern that section 13, though well intended, first, will not work and, second, may be unconstitutional and violate Article 38 of the Constitution in the context of the due process provisions. I would also be seriously concerned that if this section came into force and it was applied, and someone was convicted of a sexual offence — who should rightly be convicted because they actually did it — did not find that the charges against them were set aside on appeal due to a higher court taking the view that either this section could not operate in the way it did or that it was unconstitutional. I believe there is a real problem with this section. While I believe the Law Reform Commission meant well by it, I am not convinced this section will work. I am assuming in everything I said that this section comes out of paragraph 7.26 of the Law Reform Commission's report. Perhaps the Minister will clarify this point when replying to the debate.

I wish to refer to another suggestion in the Law Reform Commission's report which I presume is not intended and which does not seem to fall within the wording of this Bill. On page 68 of the report the Law Reform Commission talk about the presentation of evidence through a surrogate witness. They say, "... this would represent so radical a departure from the norms of our system of criminal justice that the commission does not think it either practical or desirable to recommend it". That was a quotation from the original working paper. They say in page 70 of their report: "Nothing we have heard or read since publication of the Consultation Paper has modified our original strong view against the use of surrogate witnesses."

Obviously a surrogate witness would be someone who gave evidence instead of the young person. Clearly this suggestion is not being implemented — and it is right that it should not be implemented — but I am not sure what an intermediary can do. Could intermediaries go off on their own line of cross-examination? Could they be controlled by the defence or by the prosecution in the questions they ask?

We will have to look at this section very carefully on Committee Stage.

I felt it was right to make these remarks in order to give the Minister and his Department an opportunity to have another look at this section. There is a need to tease out this section considerably more. If the Minister intends to keep the section in the Bill, a great deal more substance will have to be given to it. For example, it is not even clear who will pay for the intermediary. Will the intermediary be paid by the State? If, as a lawyer, I represent someone who is the victim of sexual abuse, the State will be prosecuting, the alleged offender will be defending and the victim would not have a right of appearance or audience before the court through their lawyer. What will happen if the victim's parents say they want their daughter to be questioned through an intermediary? Can they ask the court to do that? Do we have to wait to see if such a request is sought by the prosecution or the defence? I cannot imagine a defence lawyer ever seeking that facility. This matter will have to be teased out as it is dangerous and could give rise to huge problems.

I wish to refer to section 15 which deals with the use of video recordings as evidence at a trial. This section will require an amount of teasing out on Committee Stage. I do not want to turn Second Stage debate into Committee Stage debate but I want to put down a marker on this section. Section 15 (1) (b) provides:

a video recording of any statement made by a person under 14 years of age (being a person in respect of whom such an offence is alleged to have been committed) during an interview with persons who are in the opinion of the court appropriately qualified for the purpose.

Although this section applies to general assault, it is specifically designed to deal with the area of sexual assault. I want the Minister to clarify what is meant by people who are "appropriately qualified for the purpose". There has been a huge problem in this area in the United Kingdom; there has been a smaller version of this problem in Ireland. I wish to pronounce an interest in this issue in the sense that in recent years I have appeared in court cases on behalf of parents in circumstances where there have been allegations of sexual abuse and it has emerged that those allegations were made on very flimsy grounds. Indeed, in some instances it emerged that there was no basis for the allegations made and that conclusions were reached by so-called professionals which should not have been arrived at.

I am not saying this in the context of taking the view that we do not have a problem with child sexual abuse, we do, and it is a growing problem. To a lesser extent than they did in England, in the social work professions and certain elements of the medical profession, we suffered from a particular problem which was that until the mid-eighties everyone assumed there was no such thing as sexual abuse in Ireland. When we realised we had such a problem, this led certain professionals to assuming that if an allegation was made it always was true. When allegations were made, instead of trying to ascertain whether a child had been abused, validation procedures were adopted. A validation procedure is a procedure to confirm the prejudice you already have. In other words, you are told someone has done something and you do everything possible to validate it, that is, confirm that everything you have been told is right as opposed to investigating whether what you have been told is right.

In the context of using videos to record interviews, the Law Reform Commission seem to envisage a professional individual, perhaps a social worker with special training, accompanied by a female garda, conducting a questioning session. Traditionally the video recordings which have been made and used extensively in family law cases behind closed doors in our courts have involved medical personnel — some of whom have been qualified child psychiatrists and some of whom have not been using something called an "anatomical doll" by way of play to ascertain whether the method of play used by a child with a particular anatomical doll indicated that the child had sexual knowledge. If the child had sexual knowledge it was assumed that the child had been sexually abused.

This type of procedure can be used in two ways. It can be used for what are known as therapeutic purposes, that is, on the assumption that a child has been abused and as a therapy to help unblock from the child's mind the experience the child has gone through, to assist the child in coming to terms with that experience and to determine what type of future care is necessary for the child. Alternatively, the procedure can be used for forensic purposes. The difficulty both in England and Ireland is that there has been an addiction to the therapeutic approach. For example, these procedures are used on the assumption that someone has been abused. This leads to the problem whereby professionals, be they social workers or medical personnel, put leading questions to children and, intimidated by adults, children may give the answer they feel the professional is seeking. That has led to false conclusions being drawn of sexual abuse in a number of cases. Judgments of the High Court have resulted in committal orders being made and children subsequently released. I have been involved in some District Court cases where children were taken into care precipitately by health boards on the basis of allegations that were subsequently established to be totally untrue. This arose as a result of the so-called therapeutic use of anatomical dolls. The Law Reform Commission dealt with this matter in some detail in their consultation paper and their final paper.

Section 15 needs to be addressed. We need to make it quite clear that in so far as video recordings are to be used they should relate to a procedure whereby a person with the necessary professional qualifications engages in a forensic procedure that expressly rules out putting leading questions to a child, a procedure which is designed in a very sensitive and informed way to elicit the truth. The Law Reform Commission in their 1990 report deal with this issue, which should be addressed in this legislation. They refer to the difficulties that have arisen and state:

In the Consultation Paper, we considered the controversy and debate that has arisen in relation to the reliability and status of testimony elucidated by professionals from children suspected of being sexually abused. We pointed out that many workers in the area of child sexual abuse had modified their clinical techniques using the assistance and advice of the courts and legal experts so that the interviewing in many cases was more acceptable to the courts.

That applied in the English experience following a large number of cases in which the evidence was highly unsatisfactory. The report also stated: "We also set out a summary of the stages of interviewing and the modified structured interview now in use in Great Ormond Street Hospital in London". The Law Reform Commission in their original consultation paper provisionally made the following recommendation, which they now say is their final recommendation:

At no stage in the investigative process in relation to child sexual abuse prosecutions should the child be subjected to leading questions. This exclusion of leading questions should apply also in non-criminal cases where an issue of child sexual abuse arose.

In this Bill we are dealing primarily with criminal prosecutions although it will have a knock-on effect in the sense that in a prosecution in the criminal area the methodology used to determine whether there has been abuse may have civil implications for the future welfare of the children concerned. There is a very special need to include in this Bill a provision implementing the recommendation of the Law Reform Commission against the use of leading questions. That is of particular importance and is an issue that needs to be addressed fully and promptly in this Bill.

A case was taken in the Supreme Court in which I was involved where a care order made in favour of the Eastern Health Board some years earlier was set aside. In that case there was a combination of physiological examination and use of anatomical dolls, and the Supreme Court sought to set out guidelines as to how courts should approach these matters in future. In this case there was a video available of the interview that had taken place but the court did not look at it and the Supreme Court said that was quite wrong. That case was reported in 1990 and two judgments were given by the Supreme Court, but I will not detain the House by going into the details.

All the concerns that arise from the different types of interviewing techniques, the possibility of putting words into the mouths of children, or indeed of adults drawing conclusions from children's play that may be unwarranted are very well illustrated in a special series of law reports which detail the difficulties experienced in the Great Ormond Street Hospital. In the 1987 family law reports there are in the region of ten detailed court judgments detailing all the problems with the techniques as they were operated and the difference between a therapeutic and a forensic approach to interviewing children. It seems the intention of section 15 is to bring into play these interviews and to have them used as evidence. Therefore, we must be very sure that professionals do not draw conclusions from play techniques that are unwarranted and that they do not, by leading questions, make incidents that are innocent look a great deal more worrying than they are.

What I do not understand is why we have not taken into account in this Bill the recommendations of the Pigot Committee, which are also contained in the Law Reform Commission's report. The Pigot Committee make specific recommendations designed to ensure that we promptly address this issue. There is talk of providing a code of practice, and this would have direct application not only to how the video recording of evidence is operated but what should happen with regard to an oppropriately qualified person taking statements. I suggest that we incorporate the Pigot Committee recommendations in regulations to be made under this Bill. Paragraphs 7 and 8 of these recommendations should be specifically taken on board as part of the statutory provisions of the Bill. Paragraph 7 states:

Video taped interviews should be conducted as far as possible in accordance with the rules of evidence which govern the examination-in-chief of witnesses in court, which it is designed to replace. Thus, leading questions should be avoided. "Where children are concerned the courts already allow some latitude in this area depending upon the child's age and understanding. We think the important point is that interviewers should never be the first to suggest that a particular offence was committed or that a particular person was the perpetrator. We do not believe that the courts would exclude fairly conducted interviews for purely technical reasons or because of the inclusion of occasional insignificant leading questions. Nevertheless, it should be remembered that crucial leading questions which relate to the central facts of a case must be avoided wherever possible. This may well result in the exclusion of the interview at court."

It goes on to say under the heading "Anatomically Correct Dolls": "A code of practice should make clear that such aids should only be used to help the child to establish details with which he or she may have verbal difficulties once the general substance of a complaint is clear". There are other Pigot Committee recommendations which the Law Reform Commission say we should take on board, but I will not go into them now.

There is insufficient substance in section 15 to ensure, first, that the section will work and, second, that leading questions will not be asked during interviews that may limit the usefulness of a video or that could result in wrongful convictions taking place. We must deal with that matter. Subsection (2) states that any such video recording shall not be admitted in evidence if the court is of the opinion having regard to all the circumstances, that in the interests of justice the video recording concerned or that part should not be so admitted. I am concerned that if procedures about no leading questions, about the way in which the matter must be approached and about it being a forensic procedure rather than a therapeutic procedure, are not set down clearly, then there will be a trial within a trial every time a video tape of an interview of his nature is made featuring a young child who has been the victim of abuse. Suggestions will be made that leading questions have been put, that the video is prejudicial and that this should not be used. If the originating court does not find in favour of the defendant the case will be appealed. Instead of the videotaping of interviews being a procedure to deformalise court proceedings, to take the pressure off young people and to ensure that those who commit sexual offences are properly dealt with in the courts and that the courts have the facility to determine guilt and innocence and pass sentence, we could create a bureaucratic nightmare and not facilitate the bringing to justice of those alleged to have committed an offence.

Section 17 also reflects a Law Reform Commission recommendation. There is very little the Law Reform Commission have said in his regard with which I disagree but I have reservations about section 17. Provision is made that when a person under 17 identifies an accused in an identity parade or other identification procedure the presumption will be raised that the identified person is the person who committed the offence in question. The Minister of State, Deputy O'Dea, will be aware that many unfortunate people picked out at identity parades for having committed an offence have subsequently been discovered to have not committed that offence. It appears that section 17 turns the identity parade procedure into a method of creating presumption of guilt rather than innocence at the start of a trial. In the administration of our criminal justice system we should have learnt by now that sole reliance on identity parade identification in the determination of the alleged perpetrator of an offence can be a very dangerous and injudicious exercise. Turning such reliance into a presumption of guilt creates even greater difficulties.

I emphasise our need to ensure that we make trials of this nature much less horrific for those who have been the victims of abuse and assault. However, we must not deal with those matters in a way that could result in our sending to jail people who should not be in jail. The presumption of innocence must not be taken away. I wonder whether section 17 might present constitutional difficulties which is the last thing we would want to happen.

Section 18 extends all of those provisions to persons who suffer from a mental handicap. I welcome those additional protections.

I do not wish to be misunderstood in what I am saying. I welcome many of the measures in the Bill. I am trying to indicate to the Minister that for some provisions to be operational and work properly the Bill needs to be teased out and given more substance. Unless that is done there will be difficulties with one or two aspects of the Bill. There has certainly been a need to provide a more humane approach in dealing with sexual offences that come before the courts, in particular as they affect young people, and towards taking some of the horror out of the courthouse atmosphere. Part III is most welcome in so far as that is its intention.

Part IV deals with the competence and compellability of spouses and former spouses to give evidence. I do not intend to spend nearly as much time on this measure as I did on Part III. The provisions contained in Part IV are long overdue. For some time we have needed to move away from the 19th century legal position that made spouses as witnesses incompetent and not compellable in several kinds of trials.

One curious aspect is the reference to judicial separations or divorce a mensa et thoro. The Bill makes a differentiation between the position of a spouse who has been separated by decree of judicial separation and the position of a spouse who has not. To put it in simple terms, when a decree of judicial separation has been granted a spouse may be compellable and, in certain circumstances, when a decree of judicial separation has not been granted a spouse is not compellable. In the context of marriage breakdown, only a small proportion of couples whose marriages fail go all the way through our courts to get a separation decree. Many separation proceedings are issued, very often because either the husband or the wife do not accept the reality that the marriage has broken down and resist the conclusion of some kind of amicable arrangement whereby the couple can separate without having to go through the court system. However, in many instances, even when separation proceedings have issued, before the court is required to make a decision, the husband and the wife realise they are better off reaching agreement, resolving their own difficulties and maintaining a degree of control over the result than they would be if they allowed the case to go before the court for a judge to make a decision, with all the extra expense and upset that would involve. The reality is that many more couples separate by concluding what is known as a deed of separation or a separation agreement than by getting a decree of separation. In so far as the Bill deals with judicial separation and divorce a mensa et thoro, it seems to me the legislation should provide for the same legal position following the conclusion of a deed of separation as for a decree of separation.

Another curious issue is that the Bill makes no mention of nullity law. The Law Reform Commission stated that if a decree of annulment were granted, making a marriage void, then there was no marriage and that would give rise to no problems. If a decree were granted in respect of a voidable marriage, nullifying it, I am not sure what is the position with regard to compellability. For example, if an offence was committed by a husband prior to the High Court making a decree of annulment and then the High Court made a decree of annulment of a voidable marriage, at that stage would the wife be a compellable witness, or is she not compellable in that the offence was committed before the court decree was granted? It might be a little esoteric to raise that matter at this stage but it should be examined when we are trying to tidy up the legislation. Those questions arise under sections 19 and 21.

Other general recommendations by the Law Reform Commission are not, so far as I can tell, taken on board in the Bill, although some of them do not necessarily require legislation. Page 81 of the report of the Law Reform Commission states that the court should admit the use of anatomical dolls and other demonstrative aids to testimony. I do not know whether specific provision needs to be made for that in legislation. Paragraph 735 (c) refers to the provision of books, games and various other facilities designed to make the rooms that children wait in a good deal less intimidating. They say that similar provisions should be made for excluding from the court persons not involved in the case as are made in the context of rape cases. In terms of other sexual abuse cases, I am not sure the Bill excludes from attending at court people who might otherwise attend to observe the court proceedings.

On page 84 of the Law Reform Commission report there is a reference by the commission to special care being exercised by the Director of Public Prosecutions in selecting prosecuting counsel in child sexual abuse cases. It goes on to say that in the case of the appointment of independent representatives of children in such cases the introduction of a panel system might be considered. It says the legal profession should give serious consideration to adopting special codes of practice relating to representation in and conduct of cases involving children. The profession should also consider ways, including the possibility of a certification system, of ensuring that lawyers involved in such cases have appropriate training and experience. The same should apply, they suggest, to judges.

If the Minister did not want to legislate for lawyers I would have hoped that he would at the very least have urged the Bar Council and the Incorporated Law Society to provide for the type of special training the Law Reform Commission is talking about. I am wondering whether we should say something about that in this Bill. Just as we provided in the Family Law (Judicial Separation) Act, 1989 for certain codes of conduct by lawyers dealing with family law cases, it would seem to me that there is certain merit in taking on board what is said there. If the Minister took on board what is said there and certain members of the legal profession became specialists in these areas, it might get rid of the need for this examiner, this intermediary, that I spoke about earlier, whose job would be exceedingly difficult, putting questions to a child in circumstances where he was acting either on behalf of the prosecution or the defence.

There is one matter about which I am extremely mystified. There was a court case ten days ago about which you and I expressed considerable concern. It was a case in which a father was facing 14 charges of incest before Waterford Circuit Criminal Court and substantial oral evidence was given by the daughter. Without the father being called to give evidence the judge gave the jury a direction to return a finding of not guilty. The daughter had said in her evidence that the man who had sexually interfered with her was her father. Counsel acting for the defence said that they were not accepting that as evidence and the judge gave a direction. I am not a criminal lawyer, and I do not pretend to be an expert in criminal law, but I am told that if the birth certificate had been produced in court with the accused named as father that that of itself would not necessarily have been sufficient. I like to stand outside the legal profession on occasions, even though I am involved in it, and anyone outside the legal profession would say there was a lack of commonsense in what happened in that case. Once this girl went into the witness box and said that this man was her father it was for him to go into the witness box and deny that and for the jury to reach their decision. If there was a birth certificate and if this girl had been residing in the family home throughout her childhood with this man who had, throughout her childhood, appeared to be her father, it would be reasonable for the jury to assume that he was her father. However, he never went into the witness box and the jury was directed to discharge him.

I tried to raise this issue on a number of occasions in this House. Thankfully the Leas-Cheann Comhairle was finally successful last Thursday in getting the Adjournment Debate that I had been unsuccessful in getting and there were widespread newspaper reports to the effect that the Minister for Justice said that this problem was resolved in the Criminal Evidence Bill, 1992 which is before the House. There is only one possible section that I can see where this issue is remotely addressed in this legislation, unless I am seriously missing something. Section 4 deals with the admissibility of documents. Generally, I welcome what is said about the admissibility of documents and at this stage I have no particular issue to raise on the generality of Part II though there are one or two aspects that will need to be tidied up on Committee Stage. I do not want to delay the House by going into that at this stage. Section 4 says:

In this Part "business" includes any trade, profession or other occupation carried on, for reward or otherwise, either within or outside the State and includes also the performance of functions by or on behalf of—

(a) any person or body remunerated or financed wholly or partly out of moneys provided by the Oireachtas,

In section 5 there is provision for the admissibility of certain documentary evidence. I suppose the Registrar of Births, Marriages and Deaths is paid for by the Oireachtas for performing a function in so far as he is involved in birth certification. However, I think it is stretching it to say that that provision addresses the problem that arose in that incest case in Waterford. There are specific provisions in the Status of Children Act, 1987 that in certain circumstances when birth certificates are produced certain presumptions arise. I am not even remotely convinced that this Bill addresses the problem that arose in the Waterford case. Perhaps it is the Minister's intention to bring in an amendment on Committee Stage. It is a criminal law evidence Bill and it seems there would be no difficulty in inserting a specific condition in the Bill to provide that if a birth certificate is produced before a court that there will be a presumption that the person named as mother is the mother of the child named on the birth certificate and that the person named as father is the father of the child named on the birth certificate unless there is evidence to the contrary. In other words, the presumption would be that the person is the father and a balance of evidence should be provided. One cannot simply say that one is not the father. If we actually brought into force the genetic fingerprinting legislation that problem could be addressed. I cannot blame this Minister as he has only been in office a few weeks, but I criticise the Government in relation to the Forensic Evidence Bill, 1990. If that had been law before that incest case was heard and if the person alleged to be the father had raised a doubt as to whether he was the father of the girl who had suffered alleged offences of incest, the court could have asked for genetic fingerprinting and it could have been established whether this man was or was not the father. We passed the Bill 14 months before the trial. We did not bring it into force so the facility was not available to the court.

I do not see where in this Bill we address that issue. I saw only the newspaper report because the Official Report is not yet available and the Minister may have been misquoted, but my understanding of it was that the Minister, when responding to the Leas-Cheann Comhairle on the Adjournment debate last Thursday, said that this Bill addressed this problem. This Bill does not address the problem. The Minister repeated it yesterday on RTE. He was wrong.

I am greatly alarmed that the Minister did not even refer to the problem on Second Stage. The case received so much public notoriety and so much comment on a cross-party basis from people who had nothing but a genuine concern to ensure that this sort of mess did not happen again, that one would have assumed there would at least have been a paragraph in the Minister's speech pointing out that this issue was addressed in this Bill.

If it is addressed by various sections in Part II, it is addressed in a particularly lugubrious way and it seems, from the general reading of Part III, that even if it provided for it being admissible it can be objected to in any case, and then we are back to the same problem.

Let me conclude on this issue by saying that I hope an amendment will be put forward by Government to address that evidential problem in incest cases. There is absolutely no reason a necessary provision could not be included in the miscellaneous section of this Bill to address the problem. I can assure the Minister that an amendment will be tabled by Fine Gael to address the problem. As the Minister said, this is not a contentious Bill. I have no doubt that the Minister and the Minister of State are as anxious to address this issue as the Leas-Cheann Comhairle and I are. I hope a very clear, unambiguous section will be included in Part V, the miscellaneous provisions, to ensure that the events that took place in Waterford ten days ago are never again repeated in our courts, that whenever a young woman comes forward alleging she has been the victim of the most appalling sexual offences, having given evidence in court and having gone through the stress and upset of that, she does not watch the person whom she alleges is the guilty party go free on a legal technicality without ever giving evidence. That is quite wrong.

I have probably over-stayed my welcome through the indulgence of the House in the remarks I have made which were somewhat lengthier than I had originally intended. But I feel very strongly about these issues. I and the Fine Gael Party are very committed to ensuring that we have the necessary legislative changes. My colleague, Deputy Cotter, our party junior spokesperson, brought forward a very well argued discussion document on the whole are of child sexual abuse. We are very anxious to enact legislation that will take us into the year 2000 and that properly addresses the issues. Despite the appalling numbers of cases of child sexual abuse being uncovered by our health boards, only a very small number results in criminal prosecutions. We must ensure that our law is properly framed and adequate to allow such prosecutions to take place. We are anxious to ensure that the law we enact in this area is workable while preserving the balance about which I have spoken.

A final matter of curiosity the Minister might address when replying — and to which I will refer very briefly — arises under the provisions of the section dealing with evidence given by spouses. We are a rather strange country in a number of ways. In Ireland at present we probably have the highest numbers of couples living in a state of criminal bigamy compared, proportionately, with the total number of couples living bigamously in any other EC country. We have the Roman Catholic Church granting decrees of nullity in circumstances in which civil courts cannot grant them. Apparently parish priests in different parts of the country are quite happy to remarry people after church annulments. There are a number of couples who have remarried in such circumstances, whose marriages are recognised in the eyes of the church but are bigamous in the eyes of the State. Then there are people whose marriages have broken down, who do not have the facility of church annulments but who board a plane to England, Haiti, The Bahamas or even places like Mexico, for a couple of weeks, somewhere they think will facilitate them, and get decrees of divorce that are not recognised, remarry, return here and live in bigamy.

One question our Census of Population has not yet posed is: Are you a bigamous couple? I suspect that if we began prosecuting all of the people truly living in a criminally bigamous state at present there would be sufficient criminal prosecutions in that area of the law to keep our courts completely blocked up for approximately ten years. No doubt it would lead to an enormous expansion of the legal profession of specialists who do nothing but work in the area of bigamous cases.

One of the reasons there have been virtually no prosecutions that have been successful in this area to date has been the anomalous position concerning the laws of evidence. If I am a husband, my wife gets a church decree of annulment and marries someone else, she has gone through the ceremony, the Garda know about it, the local community know about it, the Director of Public Prosecutions knows about it and want to bring a prosecution for bigamy. Under the law as it obtains I cannot give evidence against my wife because I am not a competent witness to give evidence that my wife is now in fact committing bigamy with someone else.

It appears to me that the provisions of this Bill will resolve that problem, that the Irish solution to the Irish problem of turning a blind eye to bigamy has been that spouses have been incompetent witnesses against the other spouse when that spouse engages in a bigamous marriage. The provisions of this Bill, in rendering all spouses competent in criminal prosecutions brought against their spouses, lift the block against spouses giving evidence in bigamy trials.

What I want to know is: what will the Attorney General and the Director of Public Prosecutions do after the provisions of this Bill become law? Are we to embark on a whole series of bigamy trials or will a blind eye be turned? What will be the position if the Attorney General or the Director of Public Prosecutions does not do his job? In recent years there have been some instances with which the Minister of State present will be familiar. I think there was one in Limerick — but I could be wrong — of the first spouse trying to bring a private prosecution for bigamy, then discovering they could not get past the District Court because the only evidence available was their own and they were not competent to give it.

If that is gone it seems to me that, even if the State continues to turn a blind eye, the provisions of this Bill will leave all of those people, who have gone through those second ceremonies of marriage, vulnerable to private prosecutions at the hands of their first spouses. If nothing else the provisions of this Bill will require us to look at our marriage laws and, very rapidly, at the issue of divorce. If we do not, no matter what the view of the Director of Public Prosecutions or the Attorney General, the product of this Bill will be a number of bigamy criminal cases inevitably institutied by spouses who feel abandoned, deserted, who were greatly hurt by the fact that their spouse has gone through a second marriage. I do not believe anybody has realised that this is one of the implications of the provisions of this Bill. It is as well that we know it is because, in making spouses competent in this way, the block and the barrier in this area is lifted.

I hope the Minister will regard my comments as constructive. They are designed to ensure that we enact a very good Bill. This Bill is a good deal more complicated in its implications than may have been apparent from some of the public comment in recent days. I would seriously suggest to the Minister that, with a view to processing it quickly, with a view to ensuring that we do the job properly, we should take Committee Stage in a Special Committee of the House rather than within this Chamber. That does not mean it need take weeks or months but it would provide the facility of getting the Bill enacted at a time when perhaps the Finance Bill and Social Welfare Bill will be dominating this House. By taking it in Special Committee we would be able to tease out its implications in a non-party, non-political, non-partisan way ensuring that the best possible measure is eventually enacted into law.

First, I congratulate the Minister of State on his appointment and wish him well on behalf of my colleagues. I know he is sufficiently competent to deal with the subject before us.

Probably this is a Bill which could best be dealt with in the manner advocated by Deputy Shatter, that is in Special Committee, because it is a minefield. Indeed we Members could deal with it most effectively on Committee Stage.

Since the Act of 1908 is the basic law governing this subject we have had to wait all that time to discuss it. It is ironic that we are updating the main law set under British rule in 1908.

Since we are privileged to have in the new Minister a practitioner I might climb on my hobbyhorse and appeal to him in the strongest terms possible to do something about the condition of our courthouses nationwide and in some instances, about their absence. In my own town we do not even have a courthouse to cater for 25,000 people and probably over 60,000 in the hinterland. The court sits in an old schoolhouse and there are no acoustic or amplification systems, yet today we talk about satellite TV and the most modern technology one can imagine. We are talking about putting courthouses on a TV link while the majority of them do not have amplification, adequate heating or the basic requirements for consultation.

Even in the High Court, barristers have to talk to people out in corridors, in alleyways and even out on the footpath. That is an appalling situation in the largest and most important court of the land. While we should update the law, we should spend a bit more time updating the courthouses. The Minister who is a law practitioner in a provincial area, will appreciate the points I am making, as will my other two colleagues. I appeal to the Minister not to forget about this aspect in his work in the Department so that law practitioners will be able to deal with people as they should be dealt with, as human beings, whether or not they are guilty.

The Labour Party support this Bill and we hope it will receive a speedy passage through both Houses. Sexual abuse has become a very important national debate. All parents are very conscious of this problem but it is difficult to understand how it has suddenly become such a problem. We tend to blame unemployment for everything that happens and for every crime committed. We say that if we did not have so much unemployment we would not have so much crime. The whole question of sexual abuse has suddenly been brought forward in most difficult circumstances. Now people are prepared to come forward and admit to being sexually abused. Perhaps because it is getting so much publicity people are beginning to speak about these things which they were reluctant to speak about in the past. We must examine why the problem has suddenly become such a major problem. I do not know the solution to the problem. I know that we have Law Reform Commission reports going back to 1985, but a study has not been carried out, for example, by the Department of Health or the health boards on the root cause of the problem.

The health boards have to play a part in this. As with courthouses, health boards are overloaded and under-funded and in the majority of cases they are not too efficient. If work is to be carried out by the health boards under this Bill are they equipped either financially or with the manpower to carry out that work? I have grave reservations about that. When replying, will the Minister explain how he sees health boards operating within the context of this Bill?

I have reservations about a number of sections. Section 12 refers to giving evidence through a television link by persons under 17 years of age. It would be better to improve and update court facilities rather than introduce modern technology. It is important that people should go to court in a court atmosphere. After all, this Bill deals with serious crime entailing serious penalties. We must have an atmosphere in which people can get a fair trial, so that they will not be tried by TV or video. They should be tried in the circumstances appertaining to a court. Will the Minister say how he sees a person giving evidence virtually on television, and how it will work? I know young people are more competent today to deal with videos, computers and all sorts of electronic gadgets, but we are not talking about electronic gadgets but about a person being put on trial for a very serious offence.

I have some reservations about all of this. Will the Minister spell out specifically how the system will operate? If a child witness is in Dublin can the witness go on TV link in Dublin while the case is heard in Waterford or Dundalk? Will the courthouse be like this Chamber, for instance, with a video link out in the smoke room? I have very grave reservations about people giving evidence perhaps 40 miles away from where the court is sitting. They might think they are doing a video recording rather than giving evidence as a result of which a man or a woman will face a serious term in jail.

I welcome the section on wigs and gowns. It is about time we eliminated them. They are the flashiest part of courthouse paraphernalia. They are a hangover from the colonial days of British rule and they should have been kicked out long ago. I welcome the provision which eliminates these. It can be intimidating, not alone for children but for adults, and that practice should be completely eliminated. I do not think the legal profession would have any great objection to that, and perhaps the Minister will comment on this in his reply. Solicitors do not wear wigs and gowns when appearing in the District Court and I do not see why they should be worn in any other court. I cannot see what they achieve other than to intimidate those appearing before the court. The judges should not be treated differently; they should dress in the normal fashion in order to put people, whether young or old, at ease. Going to court is a difficult enough experience without having to cope with the added difficulty of legal regalia.

We should be careful in enacting this Bill. It is a minefield. We should hasten slowly to enact a number of the provisions in the Bill. One of the most important features of Irish law is that a person is constitutionally innocent until proven guilty. It would be very dangerous if the law were loaded against the accused because very often innocent people go to jail, as we know. The practitioners of the law know that better than anyone. Very often the guilty go free but we must always maintain that a person is innocent until proven guilty and we must ensure that the legislation is not loaded in such a way as to take that fundamental and constitutional right from anybody.

It is for that reason that I am worried about section 13 which provides for the giving of evidence through an intermediary. Will the Minister spell out what exactly that means? Does it mean that a social worker may be hired by the court and that he or she will interview the accused or, indeed, the witnesses? How will the evidence be put to the court by that intermediary? What qualifications will be required to act as an intermediary? How can we be sure that the intermediary will not give his or her version of what he thinks the witness is saying? When you are put on the witness stand, the judge and jury can see and hear what you have to say. However, when an intermediary is involved, does this mean the young person who has been sexually abused speaks privately to the intermediary who, in turn, gives evidence in the witness-box? Or does it mean that both will come into the witness-box and that the intermediary will speak on behalf of the young person? A number of very important points needs to be clarified and I would be very worried that this provision could be very badly abused. It would depend on an enormous number of factors: it may have religious or political implications, there could be implications depending on which club the person was a member of, etc. Will the Minister please spell out in more detail the implications of this section, as I do not think that this has been spelt out in sufficient detail.

I am also concerned about section 18 as it relates to the mentally handicapped. I have had a number of dealings with the mentally handicapped and I was the first chairman of one of the largest organisations for the mentally handicapped in my own town. I am not too sure that we can depend on the evidence of a mentally handicapped person when it may mean that somebody will have to spend the next couple of years in gaol. I do not say that with any disrespect to the mentally handicapped. I have worked all my life with people who are mentally handicapped and that is why I make that point. Will the Minister indicate how he envisages this will work in practice? Does he envisage that a mentally handicapped person can be fair to the accused when giving evidence? Could a mentally handicapped person be directed by a third party to say things in a particular way? I am not too clear on that point. I think this opens up a minefield and I would like the Minister to spell out the matter in more detail. Deputy Shatter also made the point that words could be put into the mouths of children. I am a father and a grandfather and from my experience dealing with children I know very often children, unlike adults, can be directed in a particular way. Is there a danger that this legislation will be based on the words from the mouths of children? Are there any safeguards within the court system to avoid that happening?

I join with my colleagues in expressing my concern at the problem that arose recently in Waterford. It was very unfortunate. The position is that when you go to court, you go to win. The accused hopes to win his case and not to have to go to gaol and it is the job of the defending solicitor or barrister to achieve that end on their client's behalf. The accused must have an equal chance before the law. In this case the accused got off on a fluke, a serious technicality that needs to be redressed. Instead of the Members of the Opposition tabling an amendment, I suggest that the Minister amend the Bill to deal with this unfortunate situation. As this occurred in Waterford, it will arise elsewhere, in Dublin, Cork or somewhere else, and it is important that the Minister takes this opportunity to amend the Bill, and we would all support him.

Finally, the Labour Party will be supporting the swift passage through the Dáil of this much needed legislation.

First, I congratulate the Minister for Justice, Deputy Flynn, on his appointment to this new and challenging portfolio and I congratulate Deputy O'Dea on his appointment as Minister of State in the same Department.

On the face of it, the Bill looks rather technical, especially to non lawyers, but it covers a number of matters of immediate concern and importance, for example, child abuse and the laws of evidence relating to it. Clearly the Bill introduces some much needed changes in the laws of evidence in our criminal justice system. Only last week we saw an example of overly technical rules of evidence preventing what might otherwise have been a successful prosecution in an incest case. Other Members have spoken out on this case and I echo their concerns. However, we should be careful not immediately to jump to conclusions on hearing secondhand accounts of cases. There is definitely a need to modernise some of our archaic rules of evidence, but in doing so we must not destroy those elements of fairness, due process and other safeguards which have been developed to protect the accused person.

The hearsay rule is one of the most technical of all rules of evidence. It has in the past prevented the introduction into evidence of perfectly reliable records simply because it was not possible to show that the person who recorded the information had personal knowledge of that information. It would also prevent the admission of such records where it was not possible to identify who exactly had recorded the information. I have come across a British case, DPP versus Myers, which highlights the shortcoming of the hearsay rule and identifies it in a very clear cashion. Cars were at issue in this case and the shortcoming of the hearsay rule was identified when it was seen as not possible to admit records of car chassis numbers into evidence because it was not possible to produce the particular employees who had recorded the chassis numbers. Baffling to the layman, these situations do little to encourage public confidence in our criminal justice system and they undermine respect for the law.

The admissibility of certain types of documentary evidence should assist in ridding us of some of the most anomalous effects of the hearsay rule. If there is a reliable procedure for creating a record or making a document it should be possible to recognise the probative value of that document or record. In today's world computers are generally used to record information and they are here to stay. To exclude much of the information stored in computers from use in a criminal prosecution because of the hearsay rule would be to ignore the practicalities of modern life. Obviously a court has to be satisfied that the document is reliable and authentic. It would be wrong to allow documentary evidence to be used to overcome the requirement of guilt beyond a reasonable doubt. However, this Bill will protect the accused from any potential unfairness. Section 8 gives a discretion to the trial judge to exclude any documents which he believes in the interests of justice ought not to be admitted. Our judges are very well equipped to make this type of decision, relying on their experience of criminal trials.

Our legal system must be able, given the wherewithal, to adapt to changes in society. In recent times we have become well aware of the potential for abuses in the business world. Technology has brought a potential for a vast array of new and complicated types of crime. We hear stories of computer hacking causing enormous problems for companies. Banks and other financial institutions are confronted with fraud involving electronic transfers and abuse of computers. It is essential that we make the necessary amendments to our laws to allow prosecutions to deal with this type of dishonesty. The Bill certainly assists in this process but it should not stop there.

I wish to draw attention, for example, to the Larceny Act, 1916, which is inadequate to deal with many of these new crimes. Under the present law there is difficulty prosecuting even such common crimes as cheque book and credit card fraud and false accounting. As a matter of urgency new legislation is required to broaden the definition of crimes of dishonesty to take into account the reality of today's society. I note the Government's awareness, as reflected in the Minister's speech, that when the Law Reform Commission make their recommendations on the law of dishonesty the implementation of changes in the law in respect of dishonesty should receive top priority. No section of the community should regard itself as one step ahead of the legal process. This is especially so in the case of the modern phenomenon of white collar crime.

The Bill makes it easier for tourists who have been victims of crimes to give evidence. Everyone shares a sense of outrage and disgust at some of the crimes that tourists have been subjected to in recent years, particularly in our capital city. How can we project the image of a friendly country and people when some of these very welcome visitors are attacked on our streets? There have been suggestions in the past that some of the individuals responsible for the attacks were taking advantage of the fact that their victims were unlikely to want the trauma of returning to the Irish courts to give evidence at trial. Why should the foreign visitor who has had a bad experience in our country have to go out of his way to let the law follow its course? Allowing these victims to make statements which can be admitted in court without the necessity for the witness to attend the court is essential. In more serious cases it would also be possible under section 28 to allow the foreign witness to give evidence over a television link-up.

Important as these new provisions are, they will not of course erase the bad experience of a mugging or an assault from the mind of the visitor or of his or her relatives. If we are to protect our vital tourism industry and the image of our country which has been so carefully nurtured, we must do all we can to prevent crime against foreign visitors. In addition to the measures in the Bill, we must ensure that an adequate number of gardaí are on the streets during the peak tourist months. We have attractive and interesting cities and we must do all we can to ensure that they are safe not only for tourists or non-nationals but for every citizen.

Part III will assist the courts in dealing in a more sympathetic way with young victims of crimes of sexual abuse. It will also allow young witnesses to give evidence in a less threatening environment. Section 12 makes provision for the use of a live television link through which the evidence can be given. Child abuse is something which for too many years was swept under the carpet. It is probably more widespread than was imagined. The child victims of this ugly crime must be given every assistance and understanding. They should not have to see the face of their tormentors while giving evidence.

Appearing as a witness in court is a difficult experience for most adults. How much more nerve racking it must be for these children. In addition to the live television link-up, provision is also made for the introduction into evidence of video recordings of a previous live television link at the time of the preliminary examination and also of the video recording of any statements made by a child under the age of 14. There are appropriate safeguards allowing the court to take into account the circumstances in which such recording took place and to decide on occasion in the interests of justice that some part or all of the recording should not be admitted in evidence.

Part IV makes some important changes to the old rules which prevented a spouse of an accused from giving evidence for the prosecution. Section 20 makes the spouse a competent witness in all cases, either for the prosecution or for the accused. This new provision obviously covers situations where that spouse is volunteering the evidence. However, it is necessary in some situations that the spouse be compelled to give evidence and section 21 provides this compellability in the case of crimes of violence or sexual offence against a spouse or children of the spouse or of the accused or against any person under the age of 17. A spouse giving evidence against an accused may come under enormous pressure not to give evidence. It is important that the courts do not leave it up to that spouse to make the positive decision to volunteer to give evidence. If everyone involved knows that there is no element of choice in the matter, it will hopefully take some of the pressure off the spouse.

In accordance with the general thrust of this Bill, Part V makes it easier for children to give evidence in criminal cases where they do not understand the significance of the oath. The old rule that the unsworn testimony of a child had to be corroborated is removed by section 27. It also removes the requirement that a warning be given to a jury on the danger of convicting on the uncorroborated sworn evidence of a child. This is now a matter for the judge to decide in the circumstances of a case. Again, this provision should allow the courts to be able to deal more effectively with the abhorrent crime of child abuse. Adults who have abused children will not be able to exploit technicalities in the law to evade conviction.

It is a sad fact that crimes of violence and sexual abuse are being perpetrated against children in families. We must face up to the challenge this poses for us as legislators and ensure that our courts have the necessary powers to deal with these serious problems. This Bill, following in the footsteps of the Criminal Law (Rape) Act, 1990, shows the determination of the Government to do just that. I wish the Bill a speedy passage through the House.

I am calling Deputy Cotter.

I can wait.

I am very happy to be given the opportunity to speak on this Bill this evening. Like previous speakers I begin by congratulating Deputy Flynn on his appointment to this onerous position. I congratulate also Deputy O'Dea on his appointment as Minister of State. Both Deputies have been appointed at a time when the criminal statistics have shown a massive increase, having waned substantially in the eighties. It is notable that in 1991 there was a 7.8 per cent increase in the incidence of recorded indictable crime. From the years 1984 to 1987, inclusive, the incidence of indictable crime decreased as it did in 1989 with a small increase in 1988. It is a cause of concern that the figures for 1991 showed such a dramatic increase of 7.8 per cent. An ethos of evil apears to be developing in society at all levels. Therefore, this Bill is welcome in so far as it tries to deal with some of the criminal activity that has been very difficult to handle in the courts and at the investigative level.

I was privileged this afternoon to sit on these benches while Deputy Shatter offered his critique of the Bill. He did not have a script but rather a few notes and, in my view, he gave a very enlightened criticism of the Bill. I have no doubt he gave food for thought to the Ministers and the officials in relation to some possible difficulties that may arise unless they are examined and put right before we pass Committee Stage. The House is very lucky to have a man of his calibre; his specialist talent is of enormous advantage and use to this House. I was disappointed there was nobody from the press here to listen to him because they would have the basis for a very interesting story for tomorrow. They would have been able to put fat on the bones of some articles we read in the newspapers over the past few days. Sadly, the people of Ireland may well lose the benefit of Deputy Shatter's criticisms of the Bill. I imagine the press were preoccupied with a report they got this morning and, as a result, this Bill will probably not be given the space it deserves in tomorrow's press.

The Bill attempts to deal with child sexual abuse and white collar crime. I did a study on child sexual abuse in the autumn. Child sexual abuse seems to have raised its ugly head in 1984 when there were 88 allegations reported to the health boards. By 1989 the number of allegations reported to the boards had increased to 1,241 — those figures are official Department of Health statistics. Childline which had been initiated in the meantime took almost 6,000 calls relating to child sexual abuse during 1990 — that figure is derived from the ISPCC annual report of 1990. The difficulty is that we do not know the extent of the problem we are dealing with but we can be certain that child sexual abuse existed prior to 1984. Because of a new openness in society and a more open approach by individuals, the reporting of child sexual abuse has increased. That is not to say the incidence of child sexual abuse has increased dramatically.

I examined some American and Canadian research into this whole area because we do not have any such data here. The Eastern Health Board have carried out some research but it is rather superficial. When one looks at research carried out in the United States into child sexual abuse one will find some divergent results. Various reports which I examined suggest that 8 per cent to 50 per cent of women, of a particular age who had been questioned — depending on who asked the questions — agreed they had been sexually abused as children. That is an enormous divergence and one would have to say the figures are not trustworthy. They are not trustworthy, basically because the questioner would have to define sexual abuse and based on that definition he or she would then question people on it. That is the reason there was such a wide divergence. There is no agreement in the United States as to the basis for trying to produce empirical results from studies into this whole area. Child sexual abuse exists and is a major social problem. I am of the opinion that it is a time bomb in society that has not yet exploded.

I wonder how many vicious crimes of rape are committed week after week against young children and old women? How many of those crimes might not have happened if the perpetrators were identified as having been sexually abused in childhood and had received appropriate therapy? I am of the opinion that many of these crimes would never have taken place because we have evidence to suggest that if the appropriate therapy is applied they can make a complete recovery. If victims are unable to get therapy they can suffer the most appalling disorders. In later life when they become adults this can lead to their being misfits in society. They are unable to form lasting, personal relationships and tend to get involved in substance abuse, prostitution and various other criminal activities. Many do get married but very often their marriages are unsuccessful. This leads to further criminal activity on the part of their children. Indeed, experts have established that many abusers were themselves the victims of abuse.

One of the things the Government should do at this stage is ask the social science department of one of our universities to carry out an in-depth study on child sexual abuse. While the legislation before us is laudable, we need to know the reason children are abused and to establish statistics. As I already said, this is going to lead to an enormous increase in juvenile crime and to criminal activity on the part of adults. If we are not to lose control of this matter, and there are signs that we might, we will have to use all the resources at our disposal, both investigative and therapeutic, to come to terms with it.

There is one sad fact and that is that the Child Care Act, referred to by the two previous speakers, is gathering dust at this time. What is the reason for this? Literally, there are hundreds of children who have been the victims of abuse. This has been proved and validated — the word used by Deputy Shatter — by health board officials and they are not receiving therapy. That is a sad fact in today's awful world. I would hazard a guess that the figure runs into thousands. Many children are sexually abused each year and yet they do not receive the necessary therapy to allow them overcome the serious personality disorders they may suffer as a result. The Government should look into this matter.

I am lucky to be a member of the Select Committee on Crime. I contend that this problem of crime cannot be tackled simply by putting legislation on the Statute Book, or by building special schools for young people, spending colossal sums of money in the process. I am convinced that until we come to realise that there are children wandering the streets of Dublin who are not under the control of their parents and that there are parents who have no responsibility for the activities of their children, and come to terms with this fact, we will introduce criminal legislation from time to time in an effort to be more sophisticated than the criminals and to ensure that we take them into court and put them behind bars. This is not good enough in today's world. As a matter of urgency we have to adopt a pro-active approach in this area.

I suggest to the Minister of State and his senior colleague that they should seriously consider forming a partnership with the local community and the health boards in housing estates in Dublin, and in the bigger centres of population, in order to support families who are in serious difficulty, because the problem of crime begins with families who are unable to control their daily lives. I am firmly convinced that if we establish a family support network right across the city of Dublin, in the first instance in those areas where it is needed, and then in other cities and large towns for which the crime figures are reported in the Garda Review, then the figures would show a massive decrease.

We had a good discussion at the Select Committee on Crime today between 2.30 p.m. and 4 p.m. on this topic. I was delighted that one of the experts who attended the committee today, and who has wide experience in this area, was the first person to agree with my thesis that we would be far better off pouring money into a family support network in an organised way in partnership with the local community and the health boards, because in that way we would ensure that children are properly protected and parents would learn how to manage their family units. We would have a far healthier society as a result. It was his view, and it is mine, that if we do not do this there will be anarchy in Dublin. There is evidence that this is already happening but the problem is going to get worse. It is not all that long ago when people could freely walk the streets of Dublin without fear, but people now tell us that this is no longer the case. Indeed, some of my friends have been savagely attacked and robbed in this city while sitting in their cars at traffic lights. There is vicious crime in this city and it can be related to poverty, deprivation and poor family circumstances.

I am happy the Leas-Cheann Comhairle has allowed me to paint the background to this matter because a particular set of circumstances in society can lead us to deciding that there is a necessity to introduce legislation. I have tried, from my own experience and the research I have carried out, to give the Members of this House who are listening to me and anybody who cares to read the record later, an indication of the difficulties we are facing and are going to face in the future unless we do something more than just putting criminal legislation on the Statute Book which is designed to outsmart the growing number of criminals.

I hope the Minister will initiate a discussion in Cabinet in an effort to set up a family support network in areas where it is needed. Any moneys spent in that area would be well spent. Moreover, I am convinced that local communities would be anxious to get involved in such a partnership. From my research I decided that the way to this would be to set up a pre-school play group supported by health board and Government funds in areas where poverty and other problems are leading to poor family circumstances, in an effort to get parents involved in support groups so that they can learn how to control their lives and exert influence on their families in a positive way rather than allow their children to roam free and become little criminals. As they grow older they will learn more and eventually we will find in ten to 15 years time that the problem is out of control and legislation is not the answer.

Debate adjourned.
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