Dáil Éireann debate -
Thursday, 5 Mar 1992

Vol. 416 No. 8

Criminal Evidence Bill, 1992: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Mrs. Barnes

Before adjourning for Question Time I dealt with most of the points I wish to raise on this Bill. There are two important areas that have to be taken into consideration either in this Bill or in another. I welcome the legal protection in this Bill for a wife who will be compelled to give evidence against her physically or sexually violent husband. Part IV of the Bill provides that a spouse or a former spouse will come within this law. It states:

"decree of judicial separation" includes a decree of divorce a mensa et thoro or any decree made by a court outside the State and recognised in the State ...”

I want to emphasis the words "and recognised in the State."

There is a large number of people living together outside the defined relationship of marriage as recognised by the State. These people are called common law husbands and common law wives. There is a difficulty in relation to this legislation and the Home Protection Act, 1976, which is also very protective legislation, in that barring orders are not extended to spouses whose marriages are not recognised within the State. I have been advised by people working with these families that a large number of women and children believe they can get a barring order — many gardaí also believe this to be the case. However, when these people apply to the court for a barring order they are told they are not entitled to it. The only recourse for them is to seek an injunction against their husbands, and I do not have to remind the Minister of the delays and the cost involved in that procedure not to mention the psychological factor. There are hundreds of women and children at risk of violence because of their inability to get a barring order, which is the most successful way of dealing with these matters.

I would ask the Minister whether the provisions in Part IV of the Bill could be extended to include these people or whether provision could be made for them under the Home Protection Act, 1976. I will not labour the issue because I am sure the Minister understands the point I am making. It is a very urgent matter and I would like the Minister to ensure that these people are protected either under this legislation or other legislation. In providing for this we would need to extend the definition of spouse and former spouse. As the matter arises under Part IV of this Bill it is timely that we consider it now. On Committee Stage we should concentrate on that aspect and introduce an amendment.

I shall conclude by referring to an issue raised by other Members, court procedures and the sentencing of sex offenders. Research abroad has shown that the only way a sex offender can be justly, humanely and positively helped to make a return to society and not reoffend is through a level of theraphy and treatment that should begin within the prison system and continue outside in the community, if needed. Much work has been done in that regard in Britain. Ray Wyer, a pioneer in this work, now has a specialised knowledge of the subject. He has been tremendously helpful and supportive of welfare and prison officers here who have attempted to provide similar rehabilitative treatment for sex offenders. That treatment should be established on a statutory basis. It must be made mandatory that as part of a sex offender's sentence he be required to accept treatment. It must also be accepted that, even if the statutory sentence has been served within the prison system, as part of the sentence such an offender should have to continue such treatment in the community until the psychological and psychiatric specialists consider he has been rehabilitated. The treatment required is difficult and is long term, and that is why I say the term of the prison sentence might not be sufficient. Research has shown a high level of denial of acceptance of responsibility for such offences and that in itself takes time to work out.

We are examining and trying to cope with half of the problem if we consider only identification, validation and the sentencing process. I welcome the measures in the Bill. However, if we are serious in our attempt to deal with sex offences, and to learn often painfully, from what is happening, we must provide rehabilitative treatment as part of a sentence. I hope we will concentrate on that aspect on Committee Stage. The Minister should consider the position of common law spouses, who do not seem to come within the definitions of the Bill. They are not recognised by the State and, are certainly suffering now as a consequence. Their position should be taken into consideration before Committee Stage.

An Leas-Cheann Comhairle

I call Deputy Flaherty.

Mr. McCartan

On a point of order, while I do not wish to cut across Deputy Flaherty in any way and in accepting that she will be addressing the House next, I wish to put on record my protest that, having sat here since the commencement of the debate on Tuesday, neither I nor any other Member from my group have been accorded the opportunity to speak.

An Leas-Cheann Comhairle

The Chair appreciates Deputy McCartan's frustration and has noted his patience. In accordance with the way the democratic system operates here, unfortunately, numbers count and the Deputy finds himself at present technically in the category of an Independent Deputy. That governs his position with regard to speaking in the House. I hope his patience will be rewarded before long.

Miss Flaherty

I wish to express my sympathy for the position in which Deputy McCartan finds himself. In other circumstances I might even be good enough to give way to him, but because I am under pressure——

Mr. McCartan

I am not asking for that.

Miss Flaherty

I am suggesting I might and that is the way I approach life. As the Chair knows, that may not be typical of all Members. As it happens, there are many pressures and if I do not speak now there is a very real chance that I shall not get an opportunity later.

Mr. McCartan

That is what I am worried about.

Miss Flaherty

I shall not be too long because I am sure Deputy McCartan will have a very useful and learned contribution to make. The contribution I am anxious to make will not be as learned as the speeches of those who preceded me but I am keen to record my welcome for the Bill.

I have been involved in debates that have touched on many of the issues dealt with in the Bill. Some of the elements of the Bill were raised in the discussion on the Criminal Justice Bill, which was before the House for many months; in the debate on Second Stage of the Child Care Bill and during discussion on the Rape Bill Members sought changes for different reasons and many of them are included in the Bill.

Speaking on a day when remarkable events are unfolding outside the House, events that will bring about historic changes — depending upon the way we respond to them — I am glad to see evidence in the House of a more modern approach to dealing with sensitive issues. Parts II and III in particular represent significant reforms, and I believe they will be only the beginning of many.

The Bill is evidence of the value of the process gone through by the Law Reform Commission and the nature and extent of the consultation they undertook in that process. The result has been humane, detailed and responsive, a comment one rarely has the pleasure of making when speaking to a Bill on Second Stage. One can often agree with a Bill in principle, but it is evident from listening to the debate that there is a general welcome for the detail and substantial changes in the Bill. The welcome may not be quite exceptional but it is very evident.

Part II introduces a reform that will be built on and expanded into other applications as we learn from experience about the way in which its provisions works in practice.

Like many other speakers, I should like to direct most of my remarks to Part III which I welcome. The consultation process undergone by the Law Reform Commission in reaching their recommendations has been largely taken on board. In relation to evidence and procedure, the consultation process showed that in cases of physical and sexual abuse of children the vital witness in every case was the child. The commission stated that giving evidence in such cases may be as traumatic an episode for a child as the abuse itself. A terrifying feature for any child was confrontation in court with the person he or she was accusing, which person would frequently be a parent or other adult authority figure.

There was also the problem in the case of very young children of whether they could give evidence. The commission outlined various options, several of which have been taken up in the Bill. I welcome those provisions wholeheartedly. They will bring a humane and progressive face to the legislation and will, I hope, facilitate more actions in cases of abuse. It must be a cause for concern that so few cases are taken to court. It is acknowledged that people recuperate more easily from such cases when they go through the experience of pursuing the offender in law. It is important to create an environment that will encourage greater pursuit of those cases.

I support the case made by Deputy Barnes. I heard Deputy Fennell make the same point earlier. In the context of any approach to sexual abuse, this may be the fourth time we have requested these types of changes as we discuss various Bills. These are things that seem, the first time we mention them, to be a long way off; but those of us who intend to have a long life in politics may see some such changes come to pass. It is not the first time I have made this point.

What is striking about the debate in relation to this Bill is that most contributors have made the point that, unless we deal with the problems of the abuser and the services for those prone to abuse, who themselves clearly have a very great problem — probably one that was never dealt with earlier when they may have suffered in various ways in their own lives — we will not have adequately tackled the problem overall. It is extremely important that we take on this issue seriously, developing programmes for the treatment of offenders who abuse young children whether physically or, more particularly, sexually.

I remember being absolutely horrified when the statistical evidence here became more publicly known — that we were roughly on a par with the rest of the "civilised" world in that perhaps as many as one in four of our children were liable to some form of abuse within their childhood. What horrified me was its logical consequence, that there were one in four adults, usually male, abusing, a small number of perpetrators inflicting damage on a very large number of children over a lifetime of abuse. If we identify offenders, simply punishing them and allow them to leave prison without adequately rehabilitating them, then ongoing damage or harm to other innocent young people will continue. Indeed, it might even be said the sacrificing of the offender to what must be personally a desperate way of life continues unabated. Given the recidivist nature of sexual offence, such rehabilitation is more important than in other areas of our penal code. Therefore I, too, would support the case for working with prisoners in a very intense way. Despite the legislative reforms included in this Bill, until we implement such rehabilitative programmes we will not have tackled the problem sufficiently seriously. I have in mind, in particular, mandatory reporting. This is an extremely sensitive, difficult issue, as Deputy Barnes said, in that people will be very concerned at disrupting a whole family even if they have suspicions. Professionals are very loathe to speak out lest they be proven wrong. A mandatory obligation to report would ensure that the problems landed in the hands of professionals as quickly as possible, which is obviously highly desirable. It is my belief that this provision should come sooner rather than later. If the new Minister of State's term of office is as long as that we would all wish for ourselves, it would be my hope that these would be two issues on which he would act in the near future.

The other changes to be welcomed are those included in Part II of the Bill, to which I have referred already, and those included in Part IV, to which Deputy Barnes referred earlier. One cannot overstress the importance of these legislative changes in the bringing into the open the dark secrets of the family affected by abuse and bringing the perpetrator to justice. Indeed the overall health of that family and of all those involved would be more likely to be improved as a result of the application of the provisions of these Parts of the Bill.

I also welcome the greater modernisation of our courts system — the tiny chink in the legal practitioners willingness to lay off their regalia on this very limited occasion, auguring well for a more extensive change overall in the future.

I was anxious to put on record my welcome of the changes proposed in this Bill which are, by and large, substantial and should prove to be enormously helpful. While we may press for additions on Committee Stage, as one of my colleagues said, it is a clear, simple, effective Bill which will be of great assistance in improving the manner in which we deal with children, in particular, and their families. Plenty remains to be done but clearly this constitutes a step in the right direction.

An Leas-Cheann Comhairle

Dá fhaid í an oíche, tagann an lá.

Mr. McCartan

Thank you, a Leas-Cheann Comhairle. I am not one noted for my patience. Nonetheless the courtesy, if nothing more, extended to me by yourself and others in the Chair is much appreciated. I hope my earlier interjection did not compel Deputy Flaherty to in any way shorten the remarks she wanted to make. After so many hours of remaining about the Chamber I felt it was time to put on record some of the frustrations I felt, particularly since the Whips of the other parties had agreed to the introduction of a guillotine on this Second Stage debate. Frankly, I was extremely worried whether I would ever get the opportunity, on behalf of my group, New Agenda, to address the Chamber on what has been correctly described in the issue of Garda Review published today as a watershed, a milestone, in the development of the Irish criminal law. I do not think that in any way overstates the importance of this Bill. As is described in the explanatory memorandum, it is legislation that has arisen from four separate reports of the Law Reform Commission dating back to 1985, dealing with major areas of the criminal law, its evidence and presentation in criminal prosecutions in a fundamental, radical way. For those reasons I was very concerned that the opportunity might not even have arisen for me to comment. However, through the good sense of someone, the guillotine has been moved back to 2 p.m. tomorrow rather than 5 p.m. this afternoon as had originally been agreed.

I accept that there is a proportionality issue at stake, and that I have a lowly presence of one, but that is a temporary arrangement. I might say to the Government Chief Whip and to anybody else out there interested in the good working and co-operation in this House that they should think again if the proportionality factor is to be insisted on on all occasions. If it is, then all other minutiae of Standing Orders will be insisted upon, I have no doubt, to discommode many Government and Opposition Members. I will say no more than that; these things always cut both ways.

It is important in any debate such as this — particularly in that the provisions of this Bill deal with the issue of child sexual abuse and how it is to be addressed using the criminal process — to pay the highest tribute to those agencies and organisations who forced the Irish male-dominated society to wake up to itself in this regard within the last decade. I recall efforts on the part of agencies such as the Rape Crisis Centres to endeavour to bring home to us within the last decade the fact that there was a major social problem of gigantic proportions within our community. These people were derided, laughed at and totally ignored by legislators and community leaders alike on the basis that we did not have the kind of problem being dealt with on an almost daily basis in the headlines of what is sometimes described as the gutter press in our neighbouring island. We are slowly beginning to realise, thanks to the efforts of many individuals and organisations in this area, that the physical and sexual abuse of young children is a major social crime phenomenon in our community. This legislation is a belated attempt by a male dominated community to address the problem. I and my group appreciate people who have worked long, voluntary hours in the sexual assault unit at the Rotunda Hospital and who had to fight long and hard to have that unit recognised by the EHB and established on a proper and permanent basis. I also have due regard for the rape crisis centres who every day are attempting to help, often on a voluntary basis to deal with the problem. It is regrettable that in the past year in particular these centres, rather than concentrating on the good work they have undertaken over the years, are fighting for their financial survival. That helps us to appreciate how much further we have to go in terms of real support for the problems that this whole phenomenon presents. The Dublin Rape Crisis Centres and others have been facing imminent closure for the last number of years with little sympathetic response from Government.

If anything, the decision in the Waterford incest case, which was highlighted in a rare performance by the Leas-Cheann Comhairle in the Chamber, and the facts that led to that decision, more than anything help to illustrate that, despite our best efforts and those of the people who work in the field, there is much more to be done in this area.

This is monumental legislation which requires careful consideration. Deputies from Fine Gael have suggested that the Bill should move from Second Stage to a special committee of the House. A couple of months ago I would have wholeheartedly supported that idea but because of my present status I am not so sure that I can any longer support that proposal because, if the heavy hand of the other parties is brought to bear, as it has been on the New Agenda over the past number of weeks, we will be excluded with a certain amount of glee and satisfaction by the larger parties. However, it is important to take time over this legislation. For that reason I am not happy that we have sought to shorten the debate on Second Stage. It may well be that the debate will conclude naturally before 2 p.m. tomorrow, but that is not the impression I am getting from the reaction of Deputies with regard to the scale of the changes being suggested in the legislation.

At the end of the day, I hope the Bill will move rapidly into law and will not simply be passed through the Houses of the Oireachtas. It has been suggested that the passage of legislation through this House is not enough any more because often built into the legislation are clauses which call for the coming into play of the legislation at a later date to be decided by the Minister based upon the exigencies of the situation. The most important provisions of this legislation in terms of dealing with child sexual abuse and related issues are not to be brought into play until such time as resources have been made available and a major job done in introducing new technology into areas of the law which have never seen any to date. It is remarkable that when we talk about introducing telecommunication video networks into our courts, the vast majority of them do not even have a microphone or a microphone system that works properly if at all. My worry is that while this legislation may pass carefully and speedily through our hands it may well prove to be a long time before we see the legislation in place. I would ask the Minister to take my views into account and do away with these guillotines so that we can take time to look at these important Bills. The law took a long time in gestation in terms of the Law Reform Commission and the drafting of the Bill, drawing together the ideas, so why is it that when it gets to the floor of the democratic Chamber, the accelerator is depressed and speed is applied.

It was suggested by the Minister on Second Stage and by other Government contributors to the debate that there are two major factors that require this legislation to be moved along hastily. It is said that we require the legislation to deal with DNA fingerprinting and to deal with recent cases that have arisen, that, irrespective of the case of the 14 year old, if DNA testing is carried out and proves to be useful in any subsequent prosecution, unless the legislation is passed, we will not be able to deal with the results and evidence will not be available to any trial. I accept that as a problem but it was fully outlined to the Minister for Justice in this Chamber in 1989 and 1990, when we were debating the various stages of the genetic fingerprinting legislation. The record will show that I and a number of others specifically told the Minister that his legislation would be unworkable until such time as the decision of the Director of Public Prosecutions against Myers handed down by the appeal courts in Britain as long ago as 1965 was addressed by legislation in this country. Now, when we eventually come to address that situation almost 30 years after the decision was handed down in Britain, I find it difficult to accept that time in this House must be set aside and the matter dealt with without proper care and attention. It is an area of the law that must be looked at much more carefully. I have very real concern about some of the provisions in the legislation in that regard.

In the context of the case of the 14 year old, the issue of DNA fingerprinting and the results that come from it, I am taking this opportunity, the first available to me in the House, to say that I fully support the views of Deputy Charles McCreevy, the Minister for Social Welfare. The comments the Minister made about the inconsistencies that exist in any debate on this issue with regard to pregnancy termination were most welcome, if for no other reason than that they came from a Minister of the Government, although he was speaking in a personal capacity.

Mrs. Barnes

Some others as well.

Mr. McCartan

And some others as well, but I am addressing my remarks particularly to him as he is a Government Minister. I want to lend my support to the position he has taken because I do not want him or indeed anybody else to be left out to dry on their own, to be pilloried or to have to bear the vindictive attacks of criticism that may arise. I believe the issue is so important as to require cross-party support. I welcome his remarks and the remarks of others who contributed in like mind and most particularly I welcome — as I have already said publicly outside this Chamber — the majority decision of the Supreme Court delivered earlier this morning.

The issue of genetic fingerprinting raises full square the question of how long we will have to wait for the Forensic Evidence Act, 1990, which was passed by this House in December 1990 to be up and running according to our rules of evidence so as to facilitate the presentation of the results of these tests in criminal prosecutions.

In this regard, like Deputy Shatter, I was totally bemused by the recent television report which seemed to suggest that DNA fingerprinting was something that had been recently discovered in this country and was a remarkable breakthrough. Given the level of media interest in the debate on this watershed Criminal Evidence Bill, 1992, as it is described in the Garda Review issued today, since it started — I have noticed one journalist entering the Chamber to listen to the debate since it began on Tuesday — I have no doubt that in a couple of months or indeed years they will wake up and discover the Criminal Evidence Bill and then write it up as a remarkable new discovery and development in our criminal law, even though this House will have spent long hours debating, discussing and parsing the legislation. I find it regrettable that little or no attention is being given by the media to this very important Bill.

It is incumbent upon the Minister for Justice or his Minister of State, Deputy O'Dea, to give clear assurances that the forensic evidence legislation will be in place and working without further delay and that the provisions of this Bill in totality will be working without further delay. I see that difficulties may arise in giving effect to Part III of the Bill which deals with the presentation of evidence by way of television or video transmission. The difficulties are, first, putting in place basic new technology and at the same time finding the physical accommodation in the existing court buildings throughout the country. Let me say at this point that arguments about this will not and should not be accepted by anyone in this House, if for no other reason than that we can appreciate how easily and how readily new technology, such as microphone systems and the televising of the business of this House and its transmission to every room in this House on varying channels, was so readily achieved in so short a period.

Mrs. Barnes

It took years.

Mr. McCartan

There is no doubt that it took a lot of years of talking, but once the decision was made it was a matter of months and over the long recess all of the cameras were put in place, the transmitting studio was established in Setanta House and the system was up and running. If this can be done in the hallowed Chambers of Leinster House there can be no argument presented that any of our courthouses are so antiquated, old or wrongly stuctured that they are incapable of being adapted to receive televised or video recorded evidence.

We were told that the legislation has an urgent relevance at present because of the judgment in the recent incest case heard in Waterford, which shocked us all. The legislation does not seem to offer any great prospect whatsoever in this regard. The difficulty with regard to the Waterford case, as I understand it, was the proof of parentage. The central question to be asked is why the indictment was drawn so narrowly. There was clearly a case of alleged incest, but equally the prosecution could have raised the issue of statutory rape, indecent assault or gross indecent assault as provided for under the Criminal Law (Rape) (Amendment) Act, 1990. There was a whole range of alternative counts that could and should have been included in the indictment and prosecuted in that case rather than the narrow count upon which the prosecution failed because of the absence of technical proof. Even in the narrow technical case of incest — I will return to this point later — I am not absolutely sure that the Bill, as circulated, will overcome the difficulties that have been talked about. In this regard there was a suggestion floating around that the Minister would be proposing an amendment in this area to accommodate that issue. Will the Minister clarify this point in his reply? The Minister did not state in his Second Stage speech that he would be putting an amendment forward but I believe such an amendment would be very helpful.

The legislation has been described quite correctly in many quarters as radical, representing a new departure in criminal evidence law and in the way criminal cases will be presented and prosecuted in this jurisdiction. I fully accept those views. However the issues thrown up by this new departure are wider than how we deal with child sexual abuse, sexual assault generally or violence towards spouses and go to the very nature of how the criminal justice system is structured in the first place. Questions on these issues have already been raised by the Director of Public Prosecution in a number of his public statements and speeches in this regard. He asked whether we as a community are happy with a criminal justice system that is based on taking up adversarial positions where the issue is not one of truth seeking but is, and only ever is, the question of providing guilt beyond doubt and nothing else. I believe that the Bill attempts to go further. I am curious about some of the language used by two of the previous speakers, Deputy Flaherty and Deputy Barnes, who said that we should make a greater effort to get more convictions; but I believe that their intent was that our criminal process should be better designed to establish truth in facts and situations than it is currently capable of doing. That is a very fundamental issue — that the current adversarial system is not a process for establishing truth and indeed was never designed to be. That begs a solution to the problem of how you deal with the testimony of the mentally incapacitated, of young people or those who are simply totally discommoded by the ambience of the courtroom and the presures created by those strange people who run around with horses hair on their heads during the proceedings. We must begin to ask: should our questions not be directed fundamentally at changing the whole criminal process itself? We should work towards an investigative process designed to establish truth and, by definition, more caring in its intent.

Deputy Barnes referred to the work of Ray Wyer in Britain regarding what should be done with people convicted of sexual offences. A system which does not take on board the findings of someone as profound as that man is missing an opportunity to be progressive and caring in its approach. As long as we use a criminal appeals system which is punitive in its entire intent and has little or no rehabilitative content, we will always opt for the adversarial system of criminal prosecution.

The question begged by the DPP and presented to us by this legislation is whether we should make a more fundamental reappraisal of the way our criminal justice system is structured and whether it is time to do away with the adversarial process of trying to fight against the State case for a conviction, looking instead to the wider social implications of the type of cases brought before the courts on a daily basis involving the community, the victim and the defendant in the maintenance of some order within our community. We are recognising in this legislation that some of the conditions typical of the adversarial system are so intimidating of the witness that often the evidence can never be prosecuted. In the strict way in which the battle lines are drawn, the person arguing from the point of view of the defendant would say this is all part of the adversarial tussle and that it is important that a witness be brought into the public arena, put on the witness stand elevated above the level of everyone else and be confronted by people dressed in outmoded gear which makes them look peculiar and funny rather than human and responsive. All of this is designed to ensure that in a tense and intimidating atmosphere that person will testify truthfully. That would be the defendant's approach and attitude to the adversarial system. Is it not time to reappraise whether that system is fair and effective and whether it serves the community in the way it should or could?

We talk in this legislation of trying to redress some of the imbalances with regard to young children, spouses and people with incapacities. Why should not those considerations be extended to every witness in every case? Is it not time that we built court rooms and court houses to reflect modern requirements? Is it necessary to put people in elevated positions where they feel totally isolated and where they are intimidated by the furniture and the people who occupy it? Should we not work towards a system that is modern and accommodates people in a humane way?

The DPP has attempted on occasion to open up this debate and I regret that he has not had the kind of response here today that he deserves. I hope that the few moments that I have spent on this topic will give him hope in pursuing these issues. Perhaps the Government should consider the establishment of a sub-division or a new chamber of the Law Reform Commission to deal specifically with criminal law reform and the rules of evidence generally. That might be one way to advance this debate further.

The section of the Bill dealing with documentary evidence is welcome. It deals with a situation which should have been apparent to any Government from 1965 onwards. In that year the Court of Appeal in Britain handed down the hallmark decision in the case of the DPP against Myers. At that time our law was similar to that in Britain with regard to hearsay evidence. The court decided that in order to prove the documentary process of manufacture it was necessary to produce all the people along the assembly line — this case involved motor cars — who did certain things in the assembly process and entered certain information in the schedule of works in the assembly plant. The court ruled that all the individual witnesses would have to be presented for the purpose of proving the record rather than one person designate. In that case the accused had been prosecuted for offences related to the theft and handling of motor cars and in order to prove the ownership of the cars it was necessary to go back to the manufacturing records. The prosecution failed because of the hearsay evidence. A Law Reform Commission report published in 1987 dealt with this problem but it has taken us until now to deal with it by way of legislation. I can say as someone who has practised criminal law for some time in our courts that a very significant number of cases failed under the hearsay restrictions because we had not introduced amending legislation. Receiving cases, cases of handling stolen goods and other related cases failed entirely for this reason. In their 1987 report the Law Reform Commission gave us a formula that could be employed. I attempted on two separate occasions to introduce the amendments presented by the Law Reform Commission but on each occasion the Government rejected them. When the Government, in response to the report, introduced legislation dealing with receiving stolen property they left out this proposition and said that it could be included in a Criminal Evidence Bill. It is here now and, late as it is, it is welcome.

The structure of the legislation suggests that the prosecution would give notice to the defendant of whatever evidence they intended to introduce in the criminal process that heretofore would not have been admissible because of the hearsay rule and that they would be relying on those documents as proof. There are certain time-scales laid down wherein the court must give notice to the defendant. In the event that notice is given, is there then a right on the part of the accused or defendant to object to that evidence being adduced in that form? Are we to take it that the legislation represents an emphatic amendment of the hearsay rule? If that is the situation and if the only steps the prosecution have to take, as a result of this Part of the legislation, is to serve notice — once notice is served within the requisite time and the court rules that the interests of justice are not being obstructed in any way — will the evidence stand on its merit in the documentary form to be produced? My concern is for the rights of the defendant as he or she might seek to enforce them by way of the Constitution or of legal precedent.

In any analogous provision contained in previous criminal law or evidence legislation, where notice was required to be given by the prosecution of an intention to move in a particular abbreviated way in the presentation of evidence — and notice had to be served — any equal objection served within a specified time by the defendant, by and large gave the defendant the absolute right of objection and veto on the evidence being produced and cast on the prosecution the obligation to present the evidence in full at the trial. I am concerned as to whether all of that is gone having regard to the provisions of this Part of the Bill. Has the Minister explored this area and, if so, is he satisfied there is constitutional firmness attaching to this part of the legislation where in the context of an adverserial system the defendant is given notice and the prosecution is obliged to do no more?

The second issue that arises in the context of Part II is the definition of the word "business" as contained in section 4 and which has implications throughout the remainder of this Part. I am concerned as to what will be the ultimate definition of a "document produced in the course of business". I accept that in section 4 the definition of "business" includes any trade, profession or other occupation carried on. I am specifically interested to know whether the Minister is satisfied that such a situation as arose in the road traffic case, the Director of Public Prosecutions v. Haughey will be covered in this instance. I raised questions about the ruling in that case in the Dáil previously and the former Taoiseach indicated that the implications of that judgment would be dealt with.

The Minister will recall that it was a case where in a standard road traffic drunk driving prosecution the doctor who had taken the sample, in the course of the investigation, had become ill by the time the case came for hearing. The production of documentation from the Medical Registrations Council confirming that the person concerned was a registered medical practitioner was not sufficient and the judge ruled that the doctor should have been present in court to confirm what was written in the document. But the doctor was unable to attend for medical reasons and the prosecution failed. That was manifestly unfair. I want to know whether the legislation, as currently drafted, emphatically covers such a situation and, indeed, much more in regard to road traffic prosecutions. When replying to the debate I hope the Minister will indicate, by way of practical example, to what extent a road traffic prosecution for drunk driving would be made more simple by reason of the workings of Part II of this legislation. I would like to have this matter teased out.

I know I speak for many people in the community who are dismayed time and again with the way in which legal niceties can be found in all nooks and crannies of the road traffic legislation to avoid conviction in patently drunk driving cases and the difficulties that can arise. Equally, in the Waterford case, and we were told that this legislation would have a major effect in such a case, are State or semi-State organisations but more particularly State organisations — in the instance in question, the Registrar of births, deaths and marriages — covered in the definition of "business" in Part II of this legislation? Section 4 (a) states:

any person or body remunerated or financed wholly or partly out of moneys provided by the Oireachtas.

I want to be satisfied that they are to be considered a business in a very specific concept of what is a business, that is somebody who is involved in the marketplace and pursuing entrepreneurial interests. Is the person who is keeping the records of births, deaths and marriages included in that concept? Will the production of documentary evidence per se from this area be sufficient to prove parentage, particularly in criminal proceedings, in the future? Perhaps the Minister would comment generally on the definitions employed in Part II of the way in which the legislation is envisaged to work.

Section 8 relates to the function a court will have to play in deciding what is or is not in the interests of justice in regard to the admissibility of evidence ultimately and in the weight to be attached to it in any direction the judge may give to a jury in summation of a case. I would urge the Minister to have more regard for the requirements we are trying to achieve here, that is, to introduce some element of commonsense and administrative workability in the manner in which evidence is produced, compiled and presented in court.

I do not want to advocate that we take out of the hands of our judges the function of conducting any criminal trial according to law and in the interests of justice generally. Nonetheless a real prospect is looming here that, because of the way in which section 8 is drafted, much of the work we are doing here, much of what we are trying to achieve in this legislation, will be set at naught. In respect of this part of this legislation what is the position of the accused or the party given notice in writing on the issue of admissibility? Is a court bound to rule, is the party who seeks to establish a cause of unfairness — for all practical purposes the defendant — obliged to give a ruling or is the matter one to be dealt with on evidence where a person objecting has to produce a cause, substantiate their complaint by way of evidence and have issues such as this debated at length in a trial by trial stage of a prosecution? As I said, under previous legislation, if an objection was raised and notified in time to the party on the opposing side, effectively there was an automatic obligation to produce the evidence. That arose from the 1967 Criminal Procedure Act and, subsequently, the 1984 Criminal Justice Act. I am seeking the Minister's guidance and assistance in discovering how it is envisaged that this legislation will affect the way in which the trial is conducted.

Debate adjourned.