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.