It is quite obvious from the discussions this morning and from all sorts of events which have occurred in the past seven or eight months that our criminal law must be good law, sustainable, supportable and effective. Recent statistics on the recorded indictable crime rate for 1991 show a very dramatic increase over previous years. The increase is the second highest since 1982, at 7.8 per cent. Obviously, we have grave cause for concern.
Therefore, it is in the interest of this House, and particularly in the interest of the Government, to indicate to the Irish people as soon as possible that they have the ability and the policies to bring this crime under control. I hope the new Minister for Justice will take the opportunity to give that indication as soon as possible because people are naturally very concerned that all sorts of crime at all levels in society are showing signs of being totally out of control.
I welcome the Bill in so far as it attempts to address certain difficulties which were obvious to all of us for some time in relation to court proceedings involving cases of child sexual abuse and white collar crime. I agree with the Minister that these problems need to be resolved as soon as possible. My party will be assisting the passage of this Bill through the House. However, we have certain serious concerns which we hope will be addressed by the Minister on Committee Stage.
I support Deputy Shatter's call for a special committee of the House to deal with Committee Stage, as our experience in dealing with the Recognition of Foreign Adoptions Bill, 1991, has been encouraging. This Bill is before us because there is general agreement that we have serious problems with the gathering of evidence and the conduct of proceedings involving child sexual abuse and serious fraud.
I welcome Part III, which seeks to make more effective criminal proceedings involving child sexual abuse, despite having some difficulties with its provisions. Child sexual abuse is a major social problem today and is recognised as being a time bomb which is waiting to explode. Experts say it will explode causing widespread crime and anarchy unless we take corrective action. This Bill attempts to do something in that direction.
Children of all ages are wandering the streets of this city every day out of the control of their parents. They are at risk from all sorts of human predators as well as being at risk of abuse. They are learning to be criminals. Children who are sexually abused can suffer the most awful emotional disturbance which, unless appropriate treatment is provided, leaves them as emotionally crippled adults unable to enjoy a normal existence.
Reports of allegations of child sexual abuse were a rarity until 1984. In that year 88 allegations were made to the health boards, and by 1991 the number had grown to 1,241, a huge increase by any standard. Is it the case that child sexual abuse is a new phenomenon? In fact, it is proved that that is not the case. Reporting of allegations is a new phenomenon because society has become more open and liberal. Experts agree that this form of abuse has always existed. Victims of abuse can make a full recovery if appropriate therapy and counselling is provided. The sad fact is that health boards are proving allegations but the victims are not getting therapy and counselling. How much of today's crime is committed by people who were sexually abused as children and who did not receive treatment? From time to time we read reports of cases when ten year old boys are rapists. We have had a recent experience of child rape which created unbelievable repercussions for our courts and our Constitution.
In the absence of empirical research we can only conjecture how many crimes are committed by people under such circumstances. Experts suggest it is fairly certain that a high percentage of crime committed today falls into that category and we have no option but to believe them. Thousands of children all over the country need but will not get treatment. Thousands of adults are suffering the shattering consequences of child abuse. Victims suffer grave identity problems, get involved in substance abuse and prostitution, cannot form satisfying adult relationships and tend to drift into lives of crime. Experts are agreed that child sexual abuse is self-sustaining, that yesterday's victim turns out to be today's abuser. Since the offspring of a victim can suffer a similar fate it has a multiplier effect. Much more needs to be done than putting legislation on the Statute Book. In that respect, the Minister should urge the Government to commission proper research to establish certain facts with regard to child sexual abuse. For example, we need to establish the causes of child sexual abuse in so far as what can be done and we need to establish also the historical and current incidence of the crime. That could be done by asking a social science faculty at one of the universities to undertake that kind of research or the ESRI could be asked to get involved in such research. It is essential that we do so becuse we must find out the dimensions of this problem. Only then can we begin to deal adequately with it.
The Minister should also urge the Government to set up, as a matter of urgency, validation and treatment centres in each health board area. Those facilities do not exist today and, indeed, Part III of this Bill needs that kind of support. The urgency of this action is twofold: to provide therapy and counselling for victims, which is most essential, and to provide the necessary basis for invoking Part III of the Bill.
The Minister will be aware that child psychiatrists are a rarity on this part of the island — six operated in the area of child care in 1990. The Minister will also be aware that the health boards do not have multi-disciplinary child care teams and, therefore, the proper investigation of allegations of child sexual abuse cannot be carried out at present satisfactorily and efficiently. It is important that the House be aware that Part III of this Bill is inoperable under present circumstances. The Minister should urge the Government to adopt the Child Care Act immediately, especially that Part of it which deals with giving the health boards various powers in relation to the welfare of children. If that Part of the Act were invoked the health board would have statutory duties in the area of child care which would assist greatly with the application of Part III of this Bill.
Sections 13 and 15 are vague and are likely to create great difficulty during the course of criminal proceedings. Section 13 provides that the court may in the interests of justice, allow cross-examination to be conducted through an intermediary. The Minister did not indicate who the intermediary would be or what qualifications are necessary. All we do know is that the court will appoint the intermediary who, in its opinion, is competent to act as such. Will the person appointed by the court be a teacher, a doctor, a child psychiatrist, a psychologist, or will it be a member of the legal profession who has been exposed to training in child psychology. We need that information because the operation of this Part of the Bill is crucial if it is to achieve what it sets out to achieve.
If section 13 is to have the desired effect which, I take it, is to elicit information from young children or persons who are mentally retarded in a setting which is amenable to the children concerned, the intermediary should have an incisive understanding of young children and mentally retarded persons and be experienced in dealing with them. He should also have a full understanding of court procedures and requirements in relation to the giving of evidence. I put it to the Minister that the courts will have great difficulty in finding people who have that set of skills.
Does the Minister propose, for example, to give legal training to specialists who work with children in order that they will be able to carry out that intermediary function or does he propose to give members of the legal profession training and practice in child psychology? It is difficult to see how section 13 will be effective and achieve its purpose unless we know what the Minister has in mind. He did not give us the benefit of his thinking on it during the course of his speech. He made no reference to how we will ensure that the intermediary appointed is competent to act as such. Will the Minister, for example, require the court to set up a panel of people with the appropriate mix of training and experience and further assist the court by providing training where required? We do not know the answer to this because the Minister did not say anything about it.
The provision in section 13 is a very important and necessary nuance in criminal law. Obviously, it is crucial that it works satisfactorily. The use of an intermediary is complicated by the fact that the child witness may well be traumatised and emotionally unstable. Therefore, we can appreciate the absolute necessity to have a person who has the best possible qualifications in child care and is conversant with legal procedures. At this point no one in this House knows how we are going to achieve this mix. Furthermore, counsel for the defence will find this procedure entirely frustrating.
Section 15 presents us with the same problems. It refers to video recording of a statement made by a person under 14 years of age during an interview with persons who in the opinion of the court were appropriately qualified for the purpose. Again, what type of person will be appropriately qualified and, more fundamentally, what will happen in a case where the person whose statement has been video recorded is not available for cross examination? Will this not be challenged by the defence as running contrary to the rights conferred on the accused person under the Constitution? This is a very serious matter and the Minister and his officials must examine it carefully. They should seek expert opinion to establish whether it is consistent with the Constitution. Deputy Shatter in his examination of the Bill played hard on this point also. It has to be cleared up. The same question mark hangs over section 13.
Cross examining a witness is a very precise practice which is governed by strict rules and regulations. Whereas we appreciate and support what the Bill is trying to achieve it would be sad if section 15 (b), for example, was found to be unconstitutional in its present form or inoperable during the course of criminal proceedings. I await the Minister's response to these important queries when he comes to sum up at the end of Second Stage.
During the course of the debate on Second Stage of the Criminal Justice (Forensic Evidence) Act, 1990, the then Minister stated that arrangements were being made for the provision of facilities for DNA fingerprinting. That statement was made quite some time ago. Yet, that Act is still lying dormant presumably because these facilities are not yet available. The question which arises is whether the same will happen in the case of Part III of this Bill. We are already faced with this problem in the case of the Child Care Act and the section to which I referred during the course of my speech is essential so that the health boards will have proper powers to deal with child abuse. Yet, it is lying dormant.
The Minister has promised that technical facilities will be installed in the Four Courts this year for the purposes of Part III of this Bill. I wonder if we can look forward with any confidence to this eventuality given that our experiences in the past have not been good. There is no point in producing legislation which has been demanded by Members of this House and the community at large and then not invoking that legislation. While it will assuage public opinion at the time it is not an effective way of governing the country and is self-defeating.
Part II of the Bill seeks to improve the effectiveness of the courts in prosecutions involving serious fraud. While it is unfair to generalise it seems that the number of people who are highly educated and ruthless and willing to use their considerable skills together with modern technology and methods to defraud others is increasing. That is self-evident at this time. With the development of banking and financial services there are ample opportunities for sophisticated crime of this kind. Our new financial services centre is an obvious example of where this type of crime can find a way of expressing itself. By its nature, it is very difficult to investigate and in the circumstances we are experiencing great difficulty in trying to protect personal and corporate rights.
The Government can be accused of being soft on what is called white collar crime. To date, for example, they have failed to take decisive action to deal with it. They have treated the fraud squad in a most inadequate fashion. They should not provide a panel of consultants comprised of members of the accounting and legal professions who can occasionally, when requested to do so, consult with the fraud squad. That is not the right way to go about dealing with this type of crime. The Garda Commissioner should have the authority and the resources necessary to employ experts of this nature on a full-time basis. Unless we do this we will not show the public at large and criminals that we are serious about tackling this type of crime. The fact that the Garda Commissioner cannot do this seems to suggest that the Government are halfhearted in their approach to serious fraud. My party have been urging the Government for a long time to set up a serious fraud squad under the control of the Garda Commissioner rather than under the control of the Attorney General or some other person and to give them all the necessary resources to tackle and defeat serious fraud. The Government have refused to do this but we expect and are confident that, given their present commitment, they will not be in a position to defeat serious fraud. It is my thesis therefore that the Government can be rightly accused of being soft on white collar crime. I hope, however, that this changes very quickly.
I would like to quote what the Director of Public Prosecutions, Mr. Barnes, said in a speech to the Irish Centre for Commercial Law Studies in February 1991 on this issue. He was speaking about the adequacy of the Irish criminal justice system in coping with fraud, particularly in regard to large and complicated cases. He said:
I have developed certain clear views based on my office's experience over the past 16 years as to the sufficiency of our present system in this area. That experience and those views lead me to contemplate the last decade of the century with considerable pessimism. Unless we adopt new and radical ideas and concepts, both in our laws and procedures, I fear that the new electronically controlled worlds of national and international banking, financial services, trade, commerce, customs, tariffs, subsidies and interventions, may rapidly become happy hunting grounds in which any reasonably sophisticated white collar criminal can roam at will, untroubled by any perturbation that his activities will be effectively checked or inhibited by the Irish criminal justice system.
I support that statement made in February 1991 and I am sure that if Mr. Barnes was speaking on the topic today he would say something similar because things have not really changed much in the meantime in regard to the provision of new legislation and a whole new approach to the concept of dealing with this kind of crime.
The Director of Public Prosecutions pointed out that the two most difficult crimes to deal with are those involving fraud and sex. It is interesting to note that this Bill tries to deal with both those very difficult areas. In his opinion the Garda need far more extensive powers to assist them in dealing with complicated and sophisticated cases involving serious fraud. In this respect he believes that the rule against self-incrimination — or as it is called, the right to silence — should be scrutinised. It is unusual that, under the Road Traffic Act, a person is obliged to provide what may prove to be an incriminating sample whereas a person suspected of defrauding millions of pounds has the right to remain silent lest he incriminates himself. That has been diluted somewhat in some circumstances over the past ten years but the Director of Public Prosecutions is of the opinion that the Garda do not have the power and authority to deal with this matter in an effective and efficient way.
Have the Minister and his officials examined the possibility of diminishing or abolishing the right to silence in the case of persons suspected of serious fraud? I know there is a body of opinion which would strongly object if the House decided to remove the right to silence but there would be general agreement among members of the public that it should be examined. In cases of serious fraud — God knows we have seen enough suggestions of it over the last eight months — the public would agree that the right to silence should at least be looked at. Have the Minister, the former Minister and officials of the Department of Justice looked at this matter and, if so, what have they decided? I hope the Minister will address this problem when he responds to Second Stage.
Part II of the Bill is welcome as it allows for the use of modern documentary evidence during criminal proceedings. However, it is certainly not earth shattering and is unlikely to frighten prospective serious fraudsters. I am not clear about all the powers the Garda have in trying to deal with these very serious matters. The public are dismayed at times, when it is clear there has been serious fraud, that the Director of Public Prosecutions does not bring a case before the courts. We can think of a large number of cases of that nature over the past few years and it does not instill public confidence in the Government. The whole business of dealing with serious fraud must be looked at because if members of the public do not have confidence in the system of justice, particularly in so far as it deals with people in important positions defrauding others of huge sums of money, how can they be expected to obey the law in their day-to-day living? You cannot, and maybe the increases in the incidence of indictable crimes in 1991 could be as a result of a total lack of confidence in the public mind in regard to the ability of Members of this House to control crime at the highest level. Certainly that is the feeling I get from members of the public, they ask why they should obey the law when the big guns can break it at will and get away with it.
As the Director of Public Prosecutions said, we must take a brand new look at the whole business of our investigations and prosecutions in relation to serious fraud, which would mean looking at the powers of the Garda. Do the Garda have power, for example, to require a person to provide documentation? Part II of the Bill refers to documentation being required as evidence, but can the Garda require a person to present certain documentation to them which may assist in proving whether a person is guilty? Have they the power to require a suspect to answer certain questions about the documentation? The 1985 Act is very weak in that area. The Garda are of the opinion that they do not have adequate powers in that regard. It has been proved that they do not have adequate powers and it is up to Members of this House to move quickly to try to provide them with such powers to deal adequately with this very difficult problem.
I am disappointed that the Minister is not here this morning; he was not present on Tuesday last when I spoke. I would have liked him to be here because other things need to be done apart from introducing legislation in the House.