The first amendment in order is amendment No. 2 in the name of Deputy McCartan. Amendment No. 3 is an alternative. I suggest that amendments Nos. 2 and 3 be discussed together, if that is satisfactory. Agreed.
Criminal Evidence Bill, 1992: Committee Stage.
On a point of order, I do not understand why my amendment No. 1 has been ruled out of order. It seems to me to be perfectly in order.
I will convey to the Deputy the thorough reasoning for that decision. We are quite satisfied that the amendment is out of order.
Why is it out of order?
A number of amendments have been ruled out. Amendments Nos. 1, 15 and 62 in the name of Deputy Taylor have been ruled out of order as they are not relevant to the general subject matter of the Bill.
Amendment No. 15 seeks to apply the provisions of Part II of the Bill, relating to the admissibility of documentary evidence, to civil proceedings. Amendments Nos. 1 and 62 are consequential. The Bill deals solely with the law of evidence in criminal proceedings and to seek to amend the law relating to civil proceedings is beyond the scope of the Bill. That is in accordance with precedent.
I move amendment No. 2:
In page 3, subsection (3), line 18, after "districts" to insert ", save that no such day or days as fixed shall be later than six months from the enactment of this Act".
This is a proposal to address what has become almost an everyday feature of legislation coming before the Oireachtas. It is a feature which negates the whole function and operation of the Oireachtas in its work. I refer to the provision that following the passage of legislation it shall be brought into operation as part of the law only on such dates as the Minister for Justice shall, by order, decide. Because of the way business is ordered, motions in regard to such ministerial orders will never be discussed in this House and we will not be entitled to do other than raise questions from time to time with the Minister regarding the coming into operation of the legislation.
The Minister for Justice heralded the introduction of this legislation through the Government Information Services or through his own press office and also in the House as representing an immediate and positive response to ongoing and developing issues in the general area of child sexual abuse and the manner in which such cases might be dealt with by the courts. The legislation was to be a signal that this Government were taking definite and precise steps to deal with the problem. I inquired further as to the particular issues which were exercising the Minister's mind, enabling him to make these vaunted statements. One issue he cited was the case in Waterford involving the dismissal of charges against a father accused of having had unlawful incestuous relations with a child of his family and his acquittal on direction simply because the mother had not been available to give testimony in court as to parentage. The other issue was the developing case then before the Supreme Court involving the 14-year old victim of rape who was seeking to have a termination of her pregnancy in England. We were told that these were the two basic reasons for the bringing forward of this legislation, which was to be processed rapidly and put into law.
We welcomed at least the speed with which the Minister intended to proceed. However, the first statement of the Minister's legislative intent contained in the Bill is that it is not to come into play until he shall decide. We must place that against the record of other Ministers in regard to important legislation. The Child Care Act was passed by both Houses over two years ago but only one section of more than 100 contained in the Act has been brought into law. That legislation was dealt with at considerable length by this House, not just within this Chamber but in a special committee which served for months. The original legislation was circulated in 1986 and was the subject of very detailed debate before coming to fruition. It contained a provision similar to that in this legislation whereby various sections of the Act will be brought into law as and when the Minister decides. Because of the record of this Government in using this feature to render this House irrelevant, I object to its inclusion.
I am proposing in my amendment that the Government should have a period to put in place the nuts and bolts to react logistically to the legislation when passed. Clearly the Government cannot put in place all the technical arrangements in anticipation that the House will agree or that the Government will survive long enough to see it through. Governments should have a reasonable period of time when law is passed to arrange for its implementation.
I am not prepared to support in this House this open-ended mandate of Government that reduces the entire process to a joke, as evidenced in the related and directly involved area of child care generally. The same applied to other legislation from the Department of Justice. The legislation relating to video recordings and the incitement to hatred legislation initially come to mind in this regard. It is not a proper legislative process to involve the Houses of the Oireachtas in debate on and to seek approval for legislation that will be left on the departmental shelf with nothing constructive being done.
In my amendment I propose that the legislation be implemented in six months. If the Minister says that six months is not sufficient I would concede to Deputy Shatter's proposition of 12 months, as outlined in amendment No. 3. I would even agree to a longer period provided an emphatic and clear date is laid down for implementation of the legislation. However, I will not leave an open-ended proviso in the hands of the Minister or the Government. The six months proposed in my amendment is reasonable. We are talking about putting in place in a few locations technology that is now so sophisticated and easy to handle that it would take a matter of weeks rather than months to install. For example, technology was installed in this Chamber in a short time. In three to four months the technicians put in place not only the cameras and microphones but all the other paraphernalia needed. In addition, they installed the entire broadcasting unit at a separate location. Anyone who has visited the House will be impressed by the range of technology that was installed in a matter of months. In this legislation we are proposing a more modest operation in select locations involving the installation of video transmission and television monitoring facilities. This does not require an open-ended mandate from the Government and we will not agree to that.
I do not want to delay the House unduly on this matter because we have much ground to cover. I agree with the sentiments expressed by Deputy McCartan. It is wrong of us to constantly pass legislation in this House which has no "sell by" date. Legislation that Government portray as being urgent, having passed through the Houses of the Oireachtas, does not become operative. A recent example is legislation that I regard as extremely important, which addresses areas relevant to this Bill, that is the Forensic Evidence Act which was passed in December 1990 but which is still not operational. In that case an order is required to bring the legislation into force.
A number of aspects of this legislation are extremely urgent. The Minister is asking the House to pass the legislation but not to bring it into force. That is not good enough from a Government who have succeeded in having an unseemly number of Bills passed by this House which they have not brought into force. The Child Care Act passed in June 1991 is another example. No one in this House knows when most of the provisions in that Act will become operational, despite the fact that our laws in the area of child care are based on antiquated legislation passed in 1908 and do not adequately address the problems of child sexual abuse and child physical abuse or the obligations of health boards to protect the welfare of children. The 1991 Act addressed those issues but it is still not part of our law. As legislators we should not pretend to the Irish people that we are tackling issues by passing legislation which the Government leave to gather dust on departmental shelves and do not make operational.
It may be a matter of debate as to whether the Government should be given six months, nine months or 12 months in which to bring this Bill into force. The reason I propose 12 months is that the Bill provides for the televising of evidence, and the initial steps in this regard would be taken in respect of cases heard in the Four Courts.
As I understand it from information the Minister kindly made available to me, it is envisaged that in a case involving rape or sexual assault a child would give evidence in front of a television camera in Aras Uí Dháiligh and that evidence would be relayed to the Four Courts. If the Minister decides to put the necessary facilities in place over the summer months it would be reasonable to expect that he would have time, before providing the equipment in other courthouses throughout the country, to see how the system is working and to correct any technical or other difficulties that might arise with the procedure. There is no reason why, during the long legal vacation, the work could not be completed before the commencement of the new legal term in October next. By Christmas, the Government should have a clear view as to how the system is working. By proposing a period of 12 months from the passing of the Act it would allow for similar technology to be installed in courts in other parts of the country.
If the Minister says he would favour a period of 18 months I would not raise a great objection provided he gives an undertaking that this facility will be provided before next October in the Four Courts. We could then provide for the transferring of trials from other parts of the country to Dublin, if necessary, to limit the stress caused to a young person giving evidence in a case in which sexual assault or rape is alleged. However, I would be very anxious to ensure that this would not delay the installation of the facility in the rest of the country for an extended period. To allow some months to see whether the system is working is reasonable but it would not be possible in the long term to expect young people to travel from Limerick, Cork, Waterford and elsewhere to Dublin for trials of this nature because that would add to the burden that may be experienced.
I would ask the Minister to seriously consider the amendment tabled by me on behalf of the Fine Gael Party. There is no difference between what Deputy McCartan is saying in principle and what I am saying. We are both anxious what with the passing of this Bill, the House can assure the general public that all parts of it will become fully operational within a specified period of time. If the Minister says he would like to give consideration between now and Report Stage to the period required for the bringing into force of this Bill I would be willing not to proceed with the Fine Gael amendment. Hopefully, the Minister will come back on Report Stage with a timescale that he may consider feasible to resolve this difficulty.
I have no difficulty in supporting the thrust of the amendments of Deputy McCartan and Deputy Shatter. The principle involved here is a serious one. It is one that has crept into our legislative practice over the years to all too great an extent. In effect, it gives a Minister a veto over legislation passed by both Houses of the Oireachtas. The Oireachtas meets in two Chambers, debates legislation at length and decides on what is advisable, yet the Minister feels he must retain a veto over it for an indefinite period. The law does not come into force until the Minister decides on his own motion that it is appropriate to bring it into effect. It is completely unacceptable that an open-ended veto should be given to the executive branch of Government to put aside legislation adopted by the Oireachtas.
Deputies McCartan and Shatter referred to legislation that had been adopted by the House six months, one year and two years ago but still had not been brought into force. I should like to refer to a more notable example, the legislation adopted by the House more than 25 years ago altering the legal responsibility of local authorities and amending the public authorities protection legislation.
It is nearly 30 years since it was passed.
It is hard to believe that the Oireachtas adopted a measure changing the law regarding the liability of public authorities in a very important respect, leaving it only for the Minister's order to bring it into effect and for nearly 30 years the Minister, and a succession of Ministers, have ignored the will of the Oireachtas by persistently refusing to make the order bringing it into play. That is unacceptable.
From time to time it happens that legislation passed by the House cannot be put into effect immediately. At times certain procedures have to be followed, orders prepared and technical arrangements made before legislation can be brought into play and there may be a fixed period before the implementation of the legislation. Of course, there is no logical reason that the commencement period should not be included in the Bill.
However, so far as Part III and section 28 are concerned, the provisions which require the Minister's imprimatur to be brought into operation, there is no reason that it should be necessary to allow any period of delay. All Part III and section 28 do is introduce an enabling provision. They do not state that evidence to be given henceforth must be relayed through a television link. It is provided that evidence may be given that way by leave of the court. There is no reason to delay the introduction of the legislation on that account. Obviously, if a court is told that the technical television arrangements and video recording facilities are not available or in place the court will not give that leave. Where is the necessity for the Minister to take unto himself the idea of delaying the introduction of that measure? Section 12 (1) states:
In any criminal proceedings, unless the court sees good reason to the contrary, a person other than the accused may give evidence, whether from within or outside the State,
The word used is "may". The position is the same in section 28 (1), which states:
Without prejudice to section 12 (1), in any criminal proceedings a person other than the accused who is outside the State may, with the leave of the court, give evidence through a live television link.
What is the problem in adopting the Bill without any time delay, having regard to the fact that the measure in question is only an optional enabling provision that cannot be operational until the court is told that the facility is available? Why does the Minister have to give to himself a delaying measure? I do not consider that six months, 12 months or any other period of delay is necessary. There seems to be no good reason that the legislation should not come into operation immediately on enactment of the Bill. That would put pressure on the Department of Justice to ensure that the necessary facilities are brought into play speedily so that the intent of the Oireachtas, if it adopts the legislation, may be enforced quickly.
Various points have been made in the debate. First I wish to put on the record my absolute repudiation of Deputy McCartan's assertion that the Government were using this kind of device in a general way to make the House irrelevant. That is not in accordance with the facts. Provisions enabling legislation to be brought into operation on such day or days as the Minister may order did not begin with this Government but have been a general feature of legislation since the foundation of the State. I do not consider that the Government are particularly remiss in this regard when compared to any other Government.
Deputy McCartan referred to the child care legislation and Deputy Shatter to forensic evidence legislation. I have no personal knowledge of the difficulties, whether operational, financial or otherwise, that have delayed the making of the relevant orders under the child care legislation. I do not claim to make an argument for or against the delays that have occurred, I am not responsible for that legislation. However, I am responsible for this legislation and I give the House a categoric assurance that the implementation of this legislation will proceed with all speed.
The amendments tabled by Deputies Shatter and McCartan concern section 1 (3), which provides that Part III and section 28 shall come into operation on such day or days as may be fixed by order of the Minister. I point out that the order of the Minister is necessary to bring into operation only those two provisions. The other provisions come into operation automatically within three months of its passage.
There is a very good reason for the delay in this instance. While I recognise the aim of both Deputies in putting down their amendments, which is to put pressure on the Government — and rightly so — to bring this legislation into operation as quickly as possible, that is also my aim and must be the aim of every other Deputy. The fact is, however, that Part III cannot come into operation until the relevant facilities have been provided to enable evidence to be given by live television link. The present position is that funds for that purpose have been provided from the Estimates, tenders have been issued and demonstrations of various systems will take place during the Easter recess so that members of the Judiciary and other interested parties have the opportunity to see what is on offer.
As Deputy Shatter rightly said, I wrote to him outlining the way in which I envisaged Part III would operate. To my recollection, I also wrote to Deputy McCartan.
The Minister did.
So far as I can recall I received a reply from Deputy Shatter requesting certain things, which I passed on to the Minister with a recommendation that his requests be acceded to. I cannot recall exactly the contents of Deputy Shatter's letter; I think they had something to do with viewing the equipment. I might point out that the demonstrations which will take place over the Easter recess will be open to members of the Judiciary and other interested parties, which I imagine would include Deputy Shatter. Perhaps I can take this opportunity to offer him an invitation to the viewing of the equipment. I will request my Department to inform Deputies Shatter and McCartan when the equipment is being demonstrated.
Personally I can see no reason whatever why it should not be possible to have a system installed in three courtrooms in the Four Courts complex and a witness room fitted out in Aras Uí Dhálaigh before the Michaelmas law term begins in October next. It is also the view and expectation of those concerned in procuring the equipment that, when that equipment is available in the Four Courts, it will be possible to transfer proceedings from elsewhere in the country to the Four Courts; that is provided for in section 16.
To revert to the amendments, there should be no problem about having Part III of the Bill operational within six months. Even if the legislation were to be passed by both Houses of the Oireachtas before the end of this month — of course that applies with even greater force to the 12 months period mentioned by Deputy Shatter — the problem is that the equipment must be in place before the provisions of Part III of the Bill can be implemented. It is my aim to have this done as soon as possible so that the machinery will be in motion already. Unfortunately, we live in uncertain times. There is a very slight possibility — there is always an element of risk involved in anything — that something entirely unforeseen could occur which would delay the installation of the equipment.
Were we to accept the amendments in the names of Deputies Shatter and McCartan and such an entirely unforeseen contingency occurred, we would be placed in the very invidious position that Part III of the Bill would be in operation but the equipment necessary for that implementation would not be available. To coin a phrase, that is the appalling vista we are endeavouring to avoid.
If I understood him correctly Deputy Taylor made the point that there is no obligation on the court to allow a person avail of those facilities. I must reject whatever argument he makes on that premise because Part III provides that if a court decides it is appropriate that those facilities should be available, then it must allow a person who requests such facilities avail of them. Therefore, if the six months or 12 months period had been accepted by the Government and inserted in the legislation, when that period had elapsed, if for some reason the relevant equipment was not in place, an accused, a witness or the prosecution could request these facilities to be made available. In such circumstances if the court could not make them available — for the very technical reason that the facilities did not exist — and the judge considered they should be made available, that it was an appropriate case for the use of the provisions of Part III, obviously Deputies Shatter, Taylor and McCartan, all three of whom are lawyers, would know what would be the inevitable result.
I have given my personal commitment to having the provisions of this Bill implemented at the earliest possible date. Tenders have gone out; the money has been provided; viewing will take place over the Easter period; therefore, the machinery is rolling. I can foresee no reason at all why this equipment will not have been installed in Aras Uí Dhálaigh in time for the beginning of the Michaelmas law term. Form that point of view I cannot accept the amendments but I can assure the House that the objective of those amendments will be achieved.
I thank the Minister of State for his reply and acknowledge that he wrote to me outlining in detail the facilities intended to be installed. Obviously those details were not specific in terms of time and detail of tenders but the basic operation of the scheme was outlined in his correspondence with me.
I doubly appreciate that, particularly since it is the first time in my years in this House that any Minister or Minister of State has written to me in response to an issue I had raised on Second Stage debate. Indeed it is the first time ever a Minister or Minister of State has taken up a point I made on Second Stage and commented thereon in anticipation of Committee Stage. I will take up the offer of the Minister's invitation to view the equipment because that would be very informative. Hopefully that can take place in the period between Committee and Report Stages, so that whatever practical knowledge we may glean from such viewing will help to inform us for our debate on Report Stage.
Having said that, nonetheless I am firm in the principle and purpose of the amendment I pursue. Equally I am appreciative of what the Minister of State has said in regard to the practical steps that have been taken. It settles one issue, that there is no argument being advanced here about the technical complexities of what the legislation seeks to provide. We live in an age of advanced technology. The equipment is there; it is a matter of getting the tenders in, the supplier in place and the job rolling.
The Minister of State has quite correctly spoken about the unforeseen contingency. I must say that there are many beasts stalking the landscape beyond this House that could well present us with any number of unforeseen contingencies. For example, I am mindful that in the Criminal Justice Act, 1984, there was a provision enabling the Minister for Justice to introduce technology in Garda stations for the purposes of video recording interviews with suspects. There is no technological difficulty involved there. Given all of the moneys spent on other telecommunications networks within the realm of the Garda Síochána, there could not be a problem in regard to funds. But what has happened is that an unforeseen contingency beast has raised its head, in short, the Garda Síochána do not want video recordings. Therefore, a provision of law placed on the Statute Book in 1984 has lain dormant ever since. An excellent report of Judge Martin deals with the whole question of interviewing of suspects in which he recommended that video recordings constituted the only practical means of so doing. He advanced the case, illustrating that it is a system which would protect not only a suspect or suspects, but the Garda themselves. Yet that provision is there but has not been acted on or implemented.
The same Martin report deals with another very important concept, that is of a higher court of review, tribunal or body of review of cases where it is agreed by the Attorney General — in Judge Martin's recommendation — that the courts and court systems have not dealt with the justice of the issue of the particular case. That proposal has lain dormant as well because the judges in the courts have taken umbrage at the idea of establishing a higher tier that might not necessarily, in all cases, involve members of the Judiciary, or indeed involve them at all. They contend that is going nowhere as far as they are concerned, that the Martin report — which we were told by the then Minister for Justice would be acted on as a matter of urgency — has been shelved. Therefore, the unforeseen contingency about which the Minister of State spoke has arisen.
I can foresee many contingencies arising in regard to the implementation of the provisions of this Bill if this House does not lay down a very clear proposition that this is the law we want and that we want it implemented by a set date, take it or leave it. I am sorry if I appear to be unduly pointing the finger in the direction of this Government but they are the only Government with whom I have dealt since I became a Member of this House in 1987. From my experience of addressing remarks on legislation here I see an increasing tendency to use this formula of passing law and deferring the date of its implementation. I would challenge the Minister on this. This may not have been an idea thought of exclusively or initiated by Fianna Fáil since 1987 but certainly it is being used ever more frequently than heretofore in the passage of legislation.
The fundamental problem is that it is tending to undermine the primacy of the Oireachtas as the legislative body in this community. It is particularly invidious that after the Houses of the Oireachtas have passed legislation the opportunity is then open to vested interests, conservative irredentists who oppose any reform, change or progress, to appear out of the unforeseen contingency landscape and raise issues and problems with the Minister. It is a formula which begs and invites that kind of scenario. The amendment put down by Deputy Shatter and I would strengthen the Minister's hand when dealing with unforeseen contingencies and enable him to say to people who want to be obstructive or perhaps constructive on occasion: "I have a deadline to meet and we are all constrained by it because that is the deadline laid down by the supreme authority of the Oireachtas for the operation of this legislation; the Oireachtas has set a reasonable deadline and I am prepared to deal with you but we must move on". This is why the Minister should reflect again on what we are proposing in this amendment. This is why I am adamant that I am not going to lend my hand to a formula which could potentially set the most important and practical provisions of this legislation at nought.
I appreciate fully that the Minister and his Department have taken very active and constructive steps in this area and that they are committed to putting the legislation in place. I understand the Minister has set the Michaelmas term, October, for the operation of the legislation. I wish to point out to the Minister that he is also setting a target which the people who want to exert authority by saying: "We will run the course the way we want to run it. We will run the Bar profession the way we want to run it or we will run the Law Society the way we want to run it" will have to shoot for or avoid. This is what I am worried about.
The proposition I am advancing on behalf of the Democratic Left will strengthen the Minister's hand, if it needs to be strengthened, and will help him to deal unequivocally with unforeseen contingencies when they emerge. I do not anticipate this legislation going completely off the rails because, as the Minister said in his Second Stage speech, this is good, constructive and innovative legislation. The Garda Síochána in the journal from which I quoted regard this legislation as a milestone in the development of evidentiary laws in this country. This legislation deserves the support of everyone. However, as I said, problems may be raised by the sectional and vested interests in some of the most conservative professions. The way to get over this is by accepting the deadline proposed by us, which must be met because the Oireachtas says so.
First, I should like to thank the Minister for his response in regard to the points made about equipment. In response to a letter from him I wrote to the Minister suggesting that Members of this House who have an interest in the matter, and members of the Judiciary who have to work the new system, should be given the opportunity of viewing what is proposed and making observations on it prior to the legislative process being completed. I welcome the fact that we will have the opportunity during the Easter recess to see a trial run of what is being proposed and reflect on it in the context of our dealing with this Bill.
The Minister seemed to say that the equipment would be up and running in Dublin within the six month period and, in effect, by next autumn. However, he did not say that this would be the case in other districts. This section does not deal only with the Dublin district; it deals with other districts also. As I understand the section, the Minister can make orders to apply the provisions in Part III to certain parts of the country that will not apply to other parts of the country.
My concern is that this provision will be in operation in Dublin and nowhere else. That would be wrong. I was going to raise the example given by Deputy McCartan in regard to the Criminal Justice Act, 1984, under which technical equipment was to be provided in Garda stations for the recording of interviews. This has not happened. Some tremendous new Garda stations have been built in recent years in various parts of the country. Since I was appointed Fine Gael spokesperson on Justice I have visited some of these stations. However, this equipment has not been built into these stations. One would have expected that it would have made economic sense to have built in the facilities in the newer Garda stations at the time they were being wired, etc. However, this has not been done.
I do not like the idea of providing for unforeseen contingencies. If legislation to provide for new procedures is passed by the Oireachtas there should not be unforeseen contingencies which could prevent its implementation. I am prepared to take the view that the Minister may require a further period beyond six months to provide the facilities in other parts of the country. If the Minister is saying that all he requires in reality is six months and that this will allow the facilities to be established not just in Dublin but in all the other districts for which it is envisaged, then I have no difficulty in supporting Deputy McCartan's proposal. I simply do not like the idea of legislation leaving this House with no time limit on it.
One of the points people like Deputy McCartan, Deputy Taylor and I have to bear in mind is that one of the unforeseen contingencies in political life is that a Minister who promises to do something on a Committee Stage debate of a Bill in the Dáil may not hold that position at the time the Bill is enacted and passed through the Oireachtas, to implement that promise. I wish the Minister well in his post and I have no doubt he intends to be there for a considerable period of time. However, I do not know what unforeseen political contingencies may arise within the Minister's party over which none of us on this side of the House has any control and which may mean that someone with a lesser commitment might at some stage after this Bill is passed into law come into the Minister's post. Indeed, the Minister may be the recipient of an early promotion to the full Cabinet and someone who has not participated in this process may replace him. Therefore, it is important that we build the "sell by" date into the legislation.
In the context of the Minister's reply that it is his intention to implement the legislation fairly rapidly, I had hoped that instead of Deputy McCartan and I having to formally put our proposal and divide the House that at the very least the Minister would have agreed to consider this issue between now and Report Stage with a view to ascertaining whether there is a feasible and realistic date to which he could agree which would give us an assurance that the provisions in Part III will not simply apply in Dublin but will be extended, within a reasonable time, to other parts of the country where they are necessary.
I thank the Deputies for their contributions. With regard to unforeseen contingencies, I am talking only about unforeseen contingencies in relation to the installation of the equipment. The coming into operation of the provisions in Part III is contingent on the equipment being provided and put into operation, and nothing else. Deputy McCartan referred to the Law Society and the Bar Council. If the Deputy is seeking to suggest — I am sorry if I am misinterpreting what he said — that those two august bodies can in some way delay the implementation of the provisions in Part III I should point out that it is certainly the intention of the Government to ensure that they will not be allowed to do so.
In relation to the Law Society and the Bar Council, Deputy McCartan will be aware that the Solicitors (Amendment) Bill is before the House which, I hope, will further regulate the Incorporated Law Society. The Bar Council, as Deputies are aware, have voluntarily agreed to regulate themselves. One of my constituents recently approached me with a complaint about a member of the Bar and I advised him of the new disciplinary voluntary procedure which the Bar Council have taken on themselves to operate. I told him to report back to me with the result of whatever investigation will take place. I will be very interested to see how effective the procedure is.
There is a difficulty in relation to a starting date for Part III of the legislation because it is contingent on the provision of technical equipment. We have provided the money, started the procedure for installing that equipment and we are arranging viewing, etc., over the Easter recess with a specific deadline in mind. I do not think the Deputy sought in any way to question or doubt our bona fides in that regard. I made the point that the Department have provided the money and it would be very unusual, to say the least, for the money not to be spent before the end of the year. Deputy McCartan said he would accept a deadline of 12 or 18 months if a specific period was mentioned in the section. That would be a very long deadline for legislation which is so urgently required and it is my intention — and that of the Government — to do far better than that.
Deputy Shatter mentioned the availability of those facilities in other parts of the country. Section 16 provides that where a request is made in relation to a trial being heard in some other part of the country it can be transferred to Dublin so that the people concerned can avail of the equipment. Rome was not built in a day and it is intended to extend these facilities to all parts of the country. At present all rape trials, to which this legislation is more relevant than to other cases, take place in Dublin.
I understand the point Deputy Shatter made regarding the burden on people who have to travel from rural areas to the alien atmosphere of Dublin to give evidence. It is our intention to ensure that that situation will pertain for as short a time as possible and I have already spoken to the Minister for Finance in this regard. I asked him to ensure that the necessary finance would be made available next year to extend those facilities to other parts of the country — and to the whole country — as soon as possible. The Department have a deadline of early next year in relation to having the equipment installed and operating for courts in the south and west. Part III of the legislation is contingent on the equipment being put into operation, the legislation can only come into operation when the equipment is installed and working. I want to avoid cases where a prosecution might fail because of the fact that we put in a deadline and, for some unknown reason, the equipment was not installed in time. Of course, I will consider the points made by Deputies McCartan and Shatter although I cannot promise them anything. I will examine particularly the arguments made in relation to the general principle of not having legislation which comes into operation by way of order.
The Minister has been very fair in his reply and, clearly, has a very strong commitment to the legislation and what is involved. I appreciate the extent to which he sought to reassure us in the House. Nonetheless, there are difficulties, as Deputy Shatter indicated. Who knows from whom the legislation will emanate in future? Will the Minister indicate whether his Department or officials have received any representations from the representative bodies to which I referred — or from any quarter, including the unions — indicating reservations about the principles or the workability of the legislation? I have not received any representations from the wider public indicating reservations, if anything the reaction has been positive. It is important to say that, lest at the eleventh hour unforeseen problems emerge. On Report Stage will the Minister be prepared to table an amendment which names a specified date? He suggested the first day of the Michaelmas term instead of a month by month basis which I advanced.
Deputy McCartan asked whether we had received representations from interested bodies in relation to their reservations regarding the effectiveness or workability of this legislation. I am informed that we have not received any such representations. Obviously all those representative bodies feel the same as Deputy McCartan. They concur with his opinion that there should not be any difficulty in working the legislation. Deputy McCartan also asked if we were prepared to insert a date on Report Stage, the question raised by the amendment. As I already indicated to the House, I am prepared to consider the arguments made here today. The points were well made, I will take them on board and consider them. However, I have to bear in mind the very real difficulty that the implementation of Part III is contingent on the provision and operation of this equipment.
I cannot say whether an amendment will be tabled on Report Stage but I will certainly consider the points made and discuss them with the draftsman.
I thank the Minister for his helpful and courteous response. In the light of the response it is not my intention to press the amendment. We will wait to see what happens on Report Stage. In the context of the issue which Deputy McCartan raised, I am somewhat surprised that there has been no response to this Bill from people who have expertise in the area which the Bill addresses, practising lawyers and academics, which is regrettable. As we tease out the Bill it will become apparent that there are various difficulties in relation to aspects of it. Normally you can rely on some of the professional bodies to lobby Members of this House if their vested interests are affected and one would have expected a response to this technical and difficult Bill. The Bill is well intended but, like any other Bill, it can be improved as we go through the legislative process. Technical amendments are required and indeed the Minister has foreseen that amendments will be necessary.
I certainly would have expected those who practise in the criminal law area at the Bar and within the solicitors' profession to look at this Bill and to come back to the Department and to Members of this House in a constructive way to tease out some of the aspects which we will spend the rest of the day discussing. The worst of all worlds would be to pass a Bill which because of a lack of technical examination by those who have to operate it outside the House, creates difficulties rather than resolving them. Deputy McCartan's query was worth while. I suspect the reason that no one has come back to us on the Bill is not that everyone is hugely happy with the technicalities — although a great deal of the Bill is very welcome — but that nobody outside this House has got around to examining it in any detail. That is not a criticism of the Minister or any Member of this House but it is regrettable that such an important Bill has not been fully examined. Deputies have been wined and dined and have received a plethora of representations from the Law Society on the probate and conveyancing work being given to the banks under the Solicitors (Amendment) Bill, 1991.
I find it odd that the criminal law committee of the Law Society have not taken the time to examine this Bill. Perhaps they will do that before Report Stage and that what we do in this House today will stimulate them to do that. I am not suggesting that any individual group have any particular responsibility to do this in the context of the legislative process because that responsibility rests on the shoulders of Members of this House but I am taking the opportunity to point out that it is unusual that a Bill as important as this is apparently being universally ignored in its technical drafting and presentation. That does not mean that we should not try to improve the Bill as we proceed to deal with it.
Deputy McCartan, do you wish to press your amendment?
No, for the same reasons that Deputy Shatter has outlined. Because the Minister has shown such positive intentions with regard to the legislation and its early implementation I am happy to withdraw my amendment. On Report Stage we will have the opportunity to review further the progress in this regard.
In defence of those wider interests outside this House, let me say that many of them have had the opportunity to contribute fully to the debate and the development of this legislation through the Law Reform Commission. The Law Reform Commission had a great input into the principles, guidelines and concepts of the Bill as they convened a number of very important consultative conferences at which a very wide range of bodies and individuals attended — and the register lists the solicitors, barristers, social workers, gay and lesbian groups who contributed. I hope that practice will continue under the incoming president.
I move amendment No. 4:
In page 3, subsection (4), line 19, after "Act" to insert "(other than Part III (except sections 14, 15 (1) (b) and 17) and section 28)".
This amendment proposes to modify section 1 (4) which provides that the provisions of the Bill will not apply to criminal proceedings in stitutions before these provisions come into operation. The object of the subsection is to ensure that an accused person could not be said to be prejudiced by any of the changes being made in the law of evidence after proceedings had been commenced against him and before the trial commenced. That is not to say that any of the proposed changes are prejudicial to the accused, having regard to the various safeguards that have been provided to ensure fairness in the trial procedures. However, it seems to me on reconsideration that that approach is perhaps too cautious and that there is no justification for not applying the provisions of Part III to any existing proceedings.
These provisions allow evidence to be given through a live television link by witnesses who are under 17 years or mentally handicapped. I can see no reason that the benefit of this procedure should not be available to vulnerable witnesses immediately the video equipment has been installed, and I can see no possibility where it could give rise to any unfairness in so far as the accused is concerned. There are two exceptions to what I have said. The first relates to the provision in section 15 (1) (b) allowing the admission in evidence of a video recording of an out-of-court interview with the alleged victim in a child abuse case. The second exception is in section 17 which aims at avoiding the necessity for young or mentally handicapped witnesses to identify the accused again in court if they have identified him already during the investigation as being the offender. In both these cases it is better not to disturb the present procedures and for those reasons I commend the amendment.
I know, of course, an argument could be made that the provisions of Part III may shift the balance against the accused more than other provisions in the legislation which we are not putting into effect in the same way. However, let me say the reason for moving this amendment is our concern for the victims and the witnesses. We want the victims and witnesses to avail of these facilities at the earliest possible opportunity.
One of the points I wish to raise with the Minister — I think the answer is obvious but I wish to ensure that is the case — is that the procedures under the Bill will apply to crimes committed prior to the enactment of the Bill but in respect of which proceedings have not been instituted as well as to cases where the proceedings may have commenced but the trial has not taken place.
One of the objectives of the Bill, as originally envisaged and as stated by the Law Reform Commission, which we all agree with in principle, is to try to take the pressure off the victim, for example in cases of alleged rape or sexual assault. However, we have to be careful to ensure that we do not do anything that may jeopardise the prosecution being successful. I agree in principle with what the Minister is proposing and I have no difficulty with the substance of the amendment, subject to certain amendments which I believe are necessary in Part III and which we will come to later. I would be concerned to ensure that if we accept this amendment it will not result in a trial taking place in which the new procedures are applied to proceedings instituted prior to the enactment of the Bill, where the accused is found guilty but on appeal, the Supreme Court or the Court of Criminal Appeal set aside the verdict of guilty on the technical legal basis that once proceedings have been instituted the Oireachtas cannot intervene by the enactment of legislation which affects either the substance of the issue on which the person had to face trial or the procedures applicable.
Many Members will be familiar with the Sinn Féin funds case. Following the institution of litigation many years ago the Oireachtas attempted to enact laws which directly changed the legal position and which in a sense sought to determine the matter at issue in the Sinn Féin funds case. The Supreme Court held that that was unconstitutional and that the Oireachtas could not interpose a new legal situation in respect of proceedings that had already been instituted, because it was a derogation of the principle of the separation of powers built into the Constitution and that we could not interfere with the independence of the Judiciary in the judicial process. That is a layman's paraphrasing of the consequences of the Sinn Féin funds case.
My only question on this amendment is what constitutional advice the Minister has received on it, because if someone is found guilty, who should properly be found guilty, I do not see anyone wishing to see that person having their conviction set aside on a technicality. We must provide as much protection to the victims as we can and not do anything that jeopardises the possibility of a conviction being properly obtained and sustained in the event of an appeal taking place.
Very briefly, I should like to say I have no difficulty with the amendment and I support it. I understand the concerns expressed by the Minister and Deputy Shatter in attempting to ensure we do not trespass into the general principle of not making our criminal law retroactive. My understanding is that the provisions here deal with the way in which evidence can be presented as properly obtained. It does not deal with changing the basic rule with regard to the nature of the offence, after the offence is alleged to have been committed, or it does not deal with the way in which a penalty can be imposed subsequent to a charge being laid and a conviction sought. Because it deals with the procedures and technical ways in which evidence can be presented and the need to address the fundamental problem of ensuring that the victims' interests are respected in the legislation it is important that these provisions be brought in as a signal from us that this House is in earnest in addressing the intent of ensuring a better and more comfortable regime for witnesses when they are brought before the courts to give testimony. Later in the debate I will be tabling an amendment to say that in general these principles and these ideas should not be confined simply to sexual offence cases. I cannot see why, if the principle is good in practice in regard to a certain area of the criminal law, it should not be applicable to all areas of criminal law where witnesses can have——
Or civil law.
Or, indeed, civil law, as Deputy Taylor said, and I agree with that. The sooner we take away the aura and mystique of intimidation — which has been talked about for so long — which has been the experience of witnesses coming into our courts, and begin to address the needs of witnesses coming forward to give a truthful account of facts within their knowledge, the better. For that reason I hope when the Minister comes to deal with the latter portion he will follow the principle, of which he is laying the seeds in this amendment, to its logical conclusion. I hope he will avail of the opportunity, to provide that in time this principle will be applicable in all cases for witnesses coming before the courts, that witnesses are coming to a friendly, supportive venue where their cause can be heard in an accommodating atmosphere and that we end the attitude of saying they must be brought in in fear and trepidation into a hostile atmosphere.
I am happy enough with the Minister's amendment. It is sufficiently reasonable and appropriate. I do not think there need be any concern about challenging the Supreme Court or the High Court because the Bill is dealing purely with matters of evidence, changing the rules of evidence, broadening the admissibility of certain categories of evidence and procedures and so on. The actual nature of the offence or the peril of an accused person is in no way affected by anything in the Bill. I am not clear why the Minister has made an exception to sections 14, 15 (1) (b) and 17 and section 28. They deal also with evidential matters but the Minister has apparently drawn a distinction between those sections and the rest of Part III. I am curious to know how and why that arises.
I thank Deputies for their support for this amendment in the name of the Minister. The point raised by Deputy Shatter has been discussed with the Attorney General who has cleared the amendment, nevertheless I can see the point he is raising. What we are seeking to do by means of this amendment can be distinguished from the Sinn Féin funds case. Nevertheless, I am glad Deputy Shatter raised the point as it gives me the opportunity to say because we are sensitive to potential constitutional difficulties, however remote they may be, we have decided to exclude section 15 (1) (b) and section 17. My own personal understanding is that if we had included section 15 (1) (b) and section 17 we would still have no difficulties from a constitutional point of view. Because the remote possibility of that happening was raised we have decided to exclude it to ensure that this legislation is invulnerable to constitutional challenge.
I move amendment No. 5:
In page 3, subsection (4), lines 20 and 21, after "concerned." to insert "The institution of proceedings shall be deemed to have occurred when a charge is laid or a summons is returned to court duly served in accordance with the law.".
I am moving this amendment because I want to take the opportunity to address the question that this legislation will change very fundamentally the requirements of proof needed in a criminal prosecution. In particular, I am mindful of the proviso in section 27 dealing with corroboration. This Bill proposes to abolish the necessity that unsworn statements of a child must be accompanied by corroboration on the one hand and the sworn testimony of a child on the other and that a jury need not necessarily be warned of any difficulties about proceeding to a conviction on that testimony alone. There are a large number of cases in existence that have been investigated by the Garda Síochána and which have been referred to the Director of Public Prosecutions and he has recommended no prosectution. I am aware the Director of Public Prosecutions office do not give reasons why no prosecution is taken. Parents and people concerned who make the complaint, along with the young child, have gleaned that the difficulty has rested full square on this necessity for corroboration. One can argue with them as to what corroboration means. That problem is now gone. Corroboration is no longer a necessary prerequisite in the laying of a charge or the issuing of a summons for prosecution. Once this legislation is passed section 27 takes effect.
Consequently I want a clear message to go out from the Minister and this House today that once this legislation is in place it will be open to the Garda Síochána to reopen the file or files of particular cases they have been investigating and may have closed either on their own motion or on a direction from the Director of Public Prosecutions because of the difficulty with regard to corroboration. There cannot be any difficulty, where there is no injustice to be done by the lapse of time, or difficulties arising for other related issues that the Garda Síochána can now reinvestigate. Complaints and statements which have come from harassed children of the appalling circumstances surrounding sexual interference, assault or rape can now be acted upon by the Garda Síochána in responsible circumstances. That is an important message that must go out from this House. There is no issue of retrospection in this regard. This question will not affect the nature of the crime and does not interfere with the ultimate penalty that an accused can potentially be put at peril; it is simply redefining the necessary evidence to be produced in order to warrant the prosecution being launched and the necessary evidence to be acted upon by a jury in bringing in a conviction. The basic fundamental ingredients of the crime will remain the same so that there can be no difficulty. I am saying that in the context of realising that the courts can in many instances have regard to the lapse of time that has occurred from the time the original allegations were made and the time the Garda have acted.
It is almost an indelible and everyday feature of crimes of this kind that it can take a victim years to find the courage, the capacity or the emotional strength to admit let alone describe the horrible things which occurred at the hands of a parent, neighbour or so-called friend. Therefore, time is not a problem in dealing with offences of this kind. That is the reason I want it made absolutely clear that when the Minister of State says that the Bill will not apply in cases where criminal proceedings have been instituted the institution of criminal proceedings does not involve the preliminary investigation carried out by the Garda Síochána in the course of their duties in response to a complaint.
The reason I advance this amendment is that I want a clear message to be given that the Bill will not apply in cases where a charge has been laid, a summons has been issued and proceedings have been instituted. I want it stated positively that the procedings, in the context of this legislation, do not include the preliminary investigation carried out by the Garda Síochána.
A former Minister and Minister of State met families who advanced the cause on behalf of their beleaguered child or children — this matter is dealt with in section 27 — that victims had encountered difficulties unfairly in relation to the rule relating to corroboration. Given that this rule is now being removed it is important that in appropriate cases — I accept that, ultimately, it will be a matter for the Garda Síochána and the Director of Public Prosecutions to decide — the parents who heretofore were told that no prosecution or charge could be laid due to the absence of corroboration, which is necessary, should be permitted to go back to the gardaí who carried out the investigation into the original complaint to ask them to reopen the file. The essential message that should go to the parents of the unfortunate victims of crimes of this kind is that there is a possibility that their cases will be looked at afresh.
The Deputy is correct in stating that there is such a possibility because, as Deputies are aware, the provisions and procedures set out in this legislation can apply even where a crime had been committed before the commencement of this legislation if proceedings are instituted subsequent to this. The Deputy's amendment seeks to define precisely the moment when criminal proceedings are deemed to be instituted for the purposes of section 1 (4) so that the provisions of the Bill will not be applied to them if they have been instituted before the relevant provisions come into operation. The amendment defines that moment as the point when a charge is laid or a summons has been duly served and returned to the court.
The subsection, as it stands, does not attempt to define the moment when proceedings are deemed to be commenced but I have been advised that the moment when criminal proceedings are deemed to be instituted would be interpreted as the moment when the criminal process is set in motion, that is, when a warrant is issued for someone's arrest or a summons is issued or a person is arrested without a warrant provided he is subsequently charged.
Deputy McCartan's device is valid. Even if the courts have interpreted "the institution of criminal proceedings" to mean something one can deem in legislation that it means something else for the purposes of the legislation. The reason I have been advised that the courts will interpret the subsection, as it stands, in the way I have outlined is that meaning would be more favourable to an accused.
I should point out to Deputy McCartan that the subsection concerned is a purely transitional provision. The differences between the times specified in the amendment and those applicable according to the ordinary interpretation, as to when criminal proceedings are deemed to be instituted, are not substantial. If we leave the subsection as it stands that interpretation, which I believe is the ordinary interpretation, would be more favourable to an accused and more in accordance with the principle of the subsection, which is, that in fairness an accused should not have the criminal procedure significantly changed after that procedure has begun whether or not that has been brought to his notice.
I take the point made by Deputy McCartan. Not only will the legislation change the ground rules in relation to corroboration it will also change the ground rules in relation to the way evidence may be given by certain people. It is possible that the Garda Síochána, who have closed the file in a certain case and know the people who will give evidence, may take a different view in relation to the way that evidence might come across when the new procedures are put into operation. It is a matter of choice as to whether we want to go along with this but, as I said, we want to be as fair as possible to an accused and wish to avoid the possibility that alleged victims will come forward although this is more apparent than real. I will consider the points made by Deputy McCartan and discuss them with my officials between now and Report Stage.
I thank the Minister of State for his response. He has reminded me of the judicial interpretation of what is meant by the words "when proceedings are initiated". I accept what I have proposed would not be as favourable to an accused as the established proposition; in other words, currently proceedings are considered to be commenced when a warrant is issued, even though no charge may be laid, or when a summons is applied for even though it may not be served.
When I practised in the courts the Garda Síochána, in a genuine attempt to intercede or deflate a highly charged and emotional atmosphere in relation to a case which involved a member of the immediate family or a neighbour, often laid a charge against an accused to start not only the criminal process rolling but other processes also involving social workers, the health boards, the probation and welfare service attached to the court and others. They did so in the hope that it would progress to a trial, while recognising equally that in the interim period, once they submitted the file to the Director of Public Prosecutions, he may direct, given the absence of corroboration, that there was not a strong prospect of a prosecution and that the charge should be withdrawn. In many instances, one may find, even though charges have been laid and a person has been placed on remand for a number of weeks, and perhaps months, by the District Court, that the charges are struck out and there is no prosecution due to the absence of corroboration.
My amendment does not address that scenario, but it is something the Minister might consider when he is reviewing this issue. There is more to this proposition than mere transition, of merely accommodating the change-over from one set of rules to the next. There is a vast number of cases in which parents have brought a child to the Garda station where the Garda have taken a statement in harrowing circumstances from the child and, with the medical evidence from the sexual assault unit of the Rotunda or elsewhere, submitted the file to the Director of Public Prosecutions, but because there was no independent fact corroborating the statement of the victim as to the involvement of the suspect the Director of Public Prosecutions directed that there be no prosecution.
What I am addressing here is the scenario where it is medically established beyond doubt that the child has been sexually interfered with — and it does not take a lot of investigation to establish that — and where there is also a clear account from the young person, boy or girl, as to who the perpetrator was. Parents cannot understand why such a case could not be presented to a court up to this. Many of them have gone away in anguish wondering what is this animal called corroboration. Now it is gone and I have no doubt that many of those cases will present themselves back at the doorstep of our Garda Síochána for reinvestigation, and many of them will be cases in which charges were laid but struck out on the directions of the Director of Public Prosecutions or on the decision of a senior Garda officer. Those situations should be considered to see whether we can, on Report Stage, provide for such cases to be reinstituted on the basis that originally there was no prospect of a trial because of the corroboration rule. That equally applied to cases where summonses were laid and withdrawn by the prosecution. That must be investigated and I welcome the Minister's undertaking to do that.
A second issue arises here. We must ensure that the Garda Síochána understand the legislation and its import. I was very alarmed recently when a Deputy in my own party, the Democratic Left, told me that he had been approached by the superintendent in his locality who was furious because the Garda Síochána could no longer detain persons for offences relating to malicious damage under section 30 of the Offences Against the State Act, 1939. I was curious that the superintendent should have this misunderstanding because during the debate on the Criminal Damages Bill I had moved an amendment to provide, as the Law Reform Commission recommended, that malicious damages charges would no longer be scheduled offences under the Offences Against the State Act, 1939. This would have taken away from the Garda the power to detain young people for 48 hours for petty crime, something never envisaged by the original legislation. That amendment was defeated and therefore malicious damage is still a scheduled offence. A couple of days later I read an editorial in one of the Garda review magazines complaining that the Garda had lost this power of detention and that the Minister had not told them anything about it. To this day I do not understand what happened that the Garda could not read a basic piece of legislation. Some tell me that it is because their legal research department at head office has been closed and this is obviously taking its toll. I do not know why the superintendent could not have got on to head office or to the Minister's office to ask for an explanation of what had been done, because it would have been a huge advancement in the malicious damages law generally. There was a massive breakdown there. I do not understand how it arose. I have no doubt it has now been resolved. I use that as an illustration because I do not want to see the same difficulty emerging in regard to the provision in this Bill. I do not want to see people, whose previous cases were not prosecuted because there was no corroboration, being told by the Garda that the Act shall not apply to criminal proceedings instituted before the commencement of this Bill.
I have already had representations from a family who, having read the Bill and brought a case back to the Garda Síochána, were told that the Act would be of no benefit to them, good, bad or indifferent, as it could not be applied retrospectively; this has already happened in a case where no case had ever been brought. That is why I borrow from the illustration of the Criminal Damages Bill. I want to ensure that clear indicators are given to the Garda Síochána of the import of this section. Perhaps the Minister would circulate this section of our debate from the Dáil record to the Garda Síochána to inform them of the importance of this provision and, more important, the provisions of section 27 that from now on corroboration is no longer a standard of evidence required and that cases that were not brought to the stage of instituting proceedings can be reinvestigated where appropriate. That must be clearly set out so that no sloppy or lazy Garda response can be given to the parents of any victim that they cannot reinvestigate the case because of this provision. The Minister might consider drafting a memorandum to be circulated to the Garda Síochána setting out clearly exactly what is intended so that there is no ambiguity about this.
I welcome the Minister's positive response. I am happy that the point has been well taken by the Minister.
The point at which criminal proceedings are instituted is something that warrants definition. In civil law there is not much doubt about when a proceeding is instituted; it is when the summons is stamped or sealed in the High Court. In criminal proceedings it is not quite as clear as that. There is possibly an argument for saying that criminal proceedings are instituted when the prosecution makes up its mind that it will bring a proceeding. For example, as I understand it, that is the point at which a potential accused person must be given a warning that he is not obliged to make a statement etc., even though no warrant or summons or anything of that nature may yet have been issued. There are some doubts there. It requires a great deal of care and there should be some definition included as to what is meant by the expression "institution of criminal proceedings".
I would not be happy with Deputy McCartan's amendment for a number of reasons. I hear him saying he is not very happy with it himself. Certainly so far as a summons is concerned, the commencement date would not be the point when it was before the court duly served but, at best, when it was issued, to give one instance of it. Deputy McCartan was positing the scenario of a person who had been arrested, charged and remanded on a number of occasions and then, because there was no corroborating evidence had the charges against him struck out. I would not be happy if that person could be rearrested on the passing of this Bill. That would be entirely wrong and might be unconstitutional. It is not the Minister's intention that such a person should have to go through that process again because of the evidential changes introduced in this Bill.
The broad intent of this section not to apply to criminal proceedings instituted before the commencement of this Act is valid but we should make clear exactly what we mean by that. I suggest that what is critical is the point at which the prosecution decides to prosecute. The curtain should come down at that point. Anything before that should not be reopened and anything beyond that should be caught by this subsection.
Deputy Taylor makes the point that the institution of criminal proceedings needs to be defined. The Deputy is unhappy with the definition suggested by Deputy McCartan. Deputy McCartan is using the device of deeming, for the purposes of the legislation, that proceedings shall have been commenced from a certain time. That is a valid point but I am not necessarily agreeing with the amendment. Deputy Taylor feels that when the prosecutor makes up his mind to prosecute, the proceedings have been instituted but it would not be possible to ascertain as a matter of certainty the precise point when the official in the Office of the Director of Public Prosecutions made up his mind.
I am talking about a point at which the Garda must give a warning to the accused that he is not obliged to say anything. That point is not an imaginary one, it has to be determined.
I take the Deputy's point. I thought he had been suggesting that it was when a Garda had made up his mind. It would be acceptable to make the time of the warning an acceptable point. Deputy McCartan suggested that a memo on the meaning of this section should be circulated to Garda stations throughout the country. I will ask my Department to consider the feasibility of that. The fact of preliminary investigative work having taken place will not prevent the legislation applying. This section applies only when proceedings have been instituted but that precise point has not been defined in the Bill and Deputy Taylor makes the point that it should. I accept there may be a case for greater certainty.
I have already indicated that I will consider the points made by Deputy McCartan. Deputy McCartan suggested there are cases in which summonses are issued and are subsequently withdrawn. I would have thought that in most cases when a summons is issued the procedure will inevitably proceed to the point that Deputy McCartan seeks to define, namely where proceedings commence. I will have to look at how often summonses are issued and subsequently withdrawn. This seems to be a rather unusual procedure. I will consider the point made between now and Report Stage.
My wording was chosen to illustrate that in either event, it is the point where the officer prosecuting must make a return to court, in other words where the court is brought in. When the charge is made the accused is brought before the court and where a summons is served the summons is lodged with the court. I welcome the Minister's review of this matter for Report Stage and I will withdraw my amendment.
I move amendment No. 6:
In page 3, subsection (1), between lines 23 and 24, to insert the following:
" `computer' means any device for storing and processing information;".
I tabled this amendment because it was suggested by the Law Reform Commission and I do not know why the Minister did not include it. If the Minister has a good reason for not including it, I will listen to it. The report on receiving of stolen property by the Law Reform Commission indicated that for the purposes of this section computer means any device for storing and processing information. If the Minister can give me a good reason for not including this, or if he can alert me to some other legislation where there is a definition of what a computer means, I will be happy to let the matter rest.
The amendment seeks to define the term "computer" in the context in which it occurs here. The term occurred in the definition of "document". I am reluctant to tie down the term "computer" by defining it. It has been the practice in other enactments, for instance the Data Protection Act, 1988 and the Criminal Damage Act, of last year not to define that term. In those debates the view was taken that it would be undesirable to attempt any definition of the term computer because any definition was likely to be rendered inappropriate by technological advances. The suggested definition in the amendment does not add materially to the interpretation of the issue. The word is used only once in the section in the context of the admissibility of documents which include a reproduction by means of a computer or other means. For those reasons it is not appropriate to tie down this term to a definition. The definitions suggested in the amendment will not help us to any significant extent.
I have no firm views on this matter. The Minister's response reminds me of a comment I made earlier on Second Stage on the quality of the contribution made by his senior Minister to Second Stage debate. It would be helpful in Second Stage debates, where the Law Reform Commission make specific recommendations, if the Minister would explore some of those matters for us. In this case, the Minister's Second Stage speech was simply an editing of the explanatory memorandum. It gave no indication as to the thinking behind certain decisions.
The report of the Law Reform Commission does not deal at any great length with the need for a definition of "computer". I suppose a court can rely on a dictionary for a definition of a commonsense term in understanding legislation. However, the commission devised a specific wording and I should like to explore why they did so and whether we should have a specific definition in the interests of clarity. This legislation has been heralded by those in the field as a cornerstone development in evidentiary laws. It will be specifically geared to accommodate technology in the area of computers, videos and so on. We must be clear about the definition of "document".
There seems to be an emphasis in the approach of the Law Reform Commission on clarifying each term as we meet it. As there is no existing definition in the criminal law as to what constitutes a computer, I am concerned to see an advocate defending a person on a criminal charge objecting to the admissibility of certain documentation because it came from a word processor.
The term "by other means" would presumably include a word processor.
The Minister appears to be happy that this term covers everything, including the difference between a computer and a personal computer. I am not technologically minded; I just about manage to handle a pen. Why does the Minister consider that the recommendations of the Law Reform Commission are adequately covered?
The Law Reform Commission recommended a definition for the term "computer" but they did not go into great detail regarding the necessity for it Like the Government, the Law Reform Commission do not have a monopoly of wisdom. It was felt that other legislation such as the Data Protection Act, 1988, and last year's Criminal Damage Act should not tie down the term "computer" by way of definition because such an approach might be too narrow in view of the possibility of technological advance. The concerns expressed by Deputy McCartan are well covered. On reading the definition of "document" I wonder whether it is necessary to include the term "computer" at all. A document includes a reproduction in permanent legible form by a computer or other means. It seems that "other means" covers all methods by which documents can be reproduced in permanent, legible form.
Once it is included, it has specific importance and perhaps it deserves specific definition. I do not disagree with the Minister's approach. The whole emphasis of this legislation is on addressing the technological development of computers. It is better to keep the reference rather than leave it out. It is good to develop our definitional body of law on the basis of inclusion rather than exclusion. The ethos of the legislation is to bring us forward to deal with the computerisation of records. I should prefer definitions which include rather than exclude concepts. I was prompted to table this amendment because the Law Reform Commission said we should include these definitions.
I move amendment No. 7:
In page 3, subsection (1), line 27, after "includes" to insert ", in addition to a document in writing, whether produced by a computer or otherwise".
The Law Reform Commission include in their report reference to a document in writing, whether produced by a computer or otherwise. The Minister has transported part of that wording into subsection (2). Because we are dealing with legislation specifically addressing the new technological environment and bringing our laws belatedly up to date, the Law Reform Commission's construction, if for not other reason than elegance, is better because it gives proper emphasis to the place of computerisation.
The most often used laws of evidence are contained in Acts dating from the last century. The dates 1884 and 1896 remind me of more important legislation in this area. At that time all documents were produced in writing by hand. Since then we have had typewritten documents. We are now moving into legislation dealing specifically with computers. I believe the construction of words used by the Law Reform Commission is preferable. For that reason I advance this amendment.
We are talking about documents which are being made admissible by this legislation. The term "document" is defined in an inclusive definition. A document can be anything but it includes a reproduction in permanent legible form, by a computer or other means— including enlarging—of information in non-legible form. This amendment seeks to redraft that definition in a way which would state that a document includes, in addition to a document in writing, a document produced by computer or otherwise. The word "document" is sufficiently wide to include a document in writing. The vast majority of documents will be in writing. In his amendment, the Deputy seeks to admit in evidence a document in writing whether produced by a computer or otherwise. Documents produced by a computer are covered in the definition of "document", that is a reproduction in permanent legible form, by a computer or other means, of information in non-legible form. I take Deputy McCartan's point and that of the Law Reform Commission. However, I do not believe that the amendment would be an addition to the section. The point propounded by Deputy McCartan is already covered and what the Law Reform Commission want to achieve has been achieved already by the present drafting.
I hope that the Minister and the House will have patience with me. Is the Minister satisfied with the word "reproduction" as opposed to the word "production" in subsection (1) (ii)? The Law Reform Commission, in their report, deal with this matter. The traditional understanding of a document is something produced in writing. A computer can produce a document by typescript or teleprinting. I am concerned that subsection (2) as drafted deals with copies only. The problem arises with provisions referring to copies or reproductions being available where the original documents cannot be located. The Law Reform Commission believe that a document can be produced in its original form not only in writing but also in computer printing. I do not blame the Minister for looking quizzically at me.
Could the Deputy expand on that point?
Lawyers could argue that subsection (2) deals with the reproduction of a copy where the original document is not available. A document can be produced in original form and, therefore, would not be a reproduction by a computer.
We are not talking about reproducing documents but about reproduction of information. The information must be fed into the computer and it is reproduced, which is the proper terminology, in permanent legible form.
The section defines a document and refers to reproduction as opposed to the original document.
A document is what comes out in permanent legible form as a result of the information fed into the computer. I believe that the definition is adequate.
I move amendment No. 8:
In page 3, subsection (1), after line 31, to insert the following:
"(iii) any disc, tape, sound track, or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom, and
(iv) any film, including microfilm, negative, tape or other device in which one or more visual images are embodied so as to be capable (as aforesaid) of being reproduced therefrom;".
These propositions are laid down by the Law Reform Commission in their report. They say that the definition of a document should include a disc, tape, sound track or other device in which sounds or other data, not being visual images, are embodied so as to be capable, with or without the aid of some other equipment, of being reproduced therefrom, and any film, including microfilm, negative, tape or other device in which one or more visual images are embodied. Many of these items might not be included in the definition of the word "document", but the Law Reform Commission believe that they should be included. A lawyer would have no difficulty in arguing that a document would not include, for example, a disc. We know that discs are items that retain information and that they can be used to reproduce information and data. The same applies to a tape, sound track, film or negative. These are technologically advanced objects that perform the function of what was orginally a written document or paper record and, therefore, they should be included in the section.
I take the points made by Deputy McCartan that we include in the definition of "document":
any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable, (with or without the aid of some other equipment) of being reproduced therefrom, and (iv) any film, including microfilm, negative, tape or other device in which one or more visual images are embodied so as to be capable (as aforesaid) of being reproduced therefrom.
I have been advised that the Law Reform Commission, who do not insist that it is a matter of drafting — we follow exactly what they say — were consulted about the definition in this legislation and they were happier with the drafting in the legislation than with their own original drafting.
The amendment in the name of Deputy McCartan proposes to add two further categories of articles to the list of those to be included in the definition of "document". As the Deputy knows, the term "document" in the Bill as it stands includes maps, plans, graphs, photographs, etc., and a reproduction in permanent legible form, by whatever means, of information in non-legible form. The articles included in Deputy McCartan's amendment are articles which embody either sounds, for example, audio tapes, or visual images, for instance films or video tapes. The existing definition covers the information in the articles mentioned. The definition includes "a reproduction in permanent legible form, by a computer or other means (including enlarging), of information in non-legible form". For example, whatever is on an audio tape can be reproduced in transcript form.
Information in non-legible form is defined in the legislation as including information on microfilm, microfiche, magnetic tape or disc. Of course, these are only examples, The definition is much wider, covering information reproduced from all the articles mentioned in the amendment. The Bill is concerned only with documents that are in permanent legible form, whether they were originally compiled in that form or are reproductions of non-legible material. Most of what Deputy McCartan is seeking to achieve is covered in the section. As I have said, audio tapes, conversations on tape and so on can be reproduced, by the means stated in the legislation, in permanent legible form. I take the point — before Deputy McCartan makes it — that a video film cannot be reproduced in permanent legible form. I think the intention of the parliamentary draftsman is that as we are now allowing the admissability of certain documents and items that were not previously admissible we should confine that substantial extension of the law of evidence to documents that are or can be reproduced in permanent legible form.
I might well be 100 per cent satisfied if the Minister agreed to include at the end of the definition of information in non-ligible form the words "or other device". The definition would then read:
"Information in non-legible form" includes information on microfilm, microfiche, magnetic tape or disk or other device;
The issue would then be covered entirely, As the Minister himself said technological information is advancing on a daily basis and there are changes in definition. That seems to be the only wording not covered by the Law Reform Commission, who talk about any disk, tape, sound track, etc, or other device. I consider that the inclusion of the words "or other device" in the definition would make everyone happy. Would the Minister consider that for Report Stage?
I shall certainly consider it, in deference to the points made by Deputy McCartan. However, I would point out that the definition of information in non-legible form includes information on microfilm, microfiche, magnetic tape or disk. That is not an exclusive definition. To provide that the definition includes certain things then by the process of logic it can also include other things. The definition can include information on any other device, which is what Deputy McCartan seeks to achieve in the amendment. It might be better to include those words in the definition and I have no strong objection to doing that. I shall consider the matter.
The definition of the Law Reform Commission is also constructed in an inclusive way. As we are dealing with penal legislation, the definition should be made as clear as possible. However, in view of what the Minister has said, I am prepared to withdraw my amendment.
We proceed to amendment No. 9. Amendment No. 10 is an alternative amendment so, by agreement, we could discuss amendments Nos. 9 and 10 together. Is that procedure agreed to? Agreed.
I move amendment No. 9:
In page 4, subsection (1), line 17, to delete "excluding an attempt to commit any such offence" and substitute "including any attempt, conspiracy or accessory to commit any such offence".
This amendment addresses the definition "sexual offence". I have no doubt that the Minister will eloquently explain his reasons for the provision "excluding an attempt to commit any such offence". In my rush to the Chamber this morning I left behind my copy of the criminal law rape amendment legislation that the House has dealt with. I am absolutely certain, from memory, that any definition of a sexual offence in that legislation includes attempts to commit any such cognatable offence. I do not know the reason for making this extraordinary provision.
The significance is that when it comes to the operation of Part III, enabling the taking of evidence in criminal cases of a certain kind by television and other revolutionary devices designed to help make life easier for the victim and witness, the term "sexual offence" will have an unnecessarily restrictive definition.
An attempt to commit a rape or a buggery can be as traumatic, harrowing and horrible for the victim as the actual full act. I do not need to go into gruesome detail about the definition heretofore, under which prosecutions had to establish that penetration had taken place, and the attempts to establish how far the penile piece had progressed, for example, and whether one was dealing with the actual act itself or the attempt to commit the act. There can often be little or no difference between the two and, as I have said, an attempt to commit some of those offences can be as harrowing and horrible as the actual act itself. For that reason, the definition as drafted is unnecessarily restrictive.
I have proposed that the words "excluding an attempt to commit any such offence" should be deleted and the words "including any attempt, conspiracy or accessory to commit any such offence" should be substituted in the definition. My amendment would not include only an attempt to commit those offences. I am saying that when the victims of people who conspire with others to set about those offences or people who are accessories — those who hold the coat, hold the victim down or in any way assist in the crime — come to give evidence against them in court that can be done in the circumstances provided in Part III.
It may well be that there is an extraordinary good or clever drafting reason for framing the clause in the way it is and I await the Minister's response with curiosity. I would be amazed if he purposely wanted to exclude all of those offences and I have no doubt that I have missed something in the provision and that the measures provided in Part III will apply to all attempts to commit offences as well as the substantive offences.
I tabled amendment No. 10 merely to tease out the position. I suspect that the amendment is not needed but I want to clarify the issue with the Minister. I think that the definition of "sexual offence" in section 2 (1) in the context of section 11 (c) in Part III would cover the worries of both Deputy McCartan and myself about the definition. There are two different drafting approaches that could be taken when dealing with this issue. There could have been a more extended definition of "sexual offence" in the definition section, which would include the various items in section 11 (c), or the definition could be dealt with in a somewhat more prolix and difficult way in the context of section 11 (c). Unless I am misreading the Bill, it would appear that section 11 (c) addresses the issue but I was concerned about it and wanted confirmation of that, which is my reason for tabling an amendment to delete "excluding" an attempt to commit any such offence and to substitute the word "including". I do not intend to delay the House any longer on the matter as I wish to give the Minister an opportunity to respond.
I wish to allay the Deputies' fears in this regard. Both amendments relate to the definition of "sexual offence", which excludes an attempt to commit such an offence, and seek to restore the inclusion of such attempts. That is very proper and it is something I completely agree with. However, the exclusion of attempts to commit those offences from the definition was made for purely drafting reasons, as Deputy Shatter anticipated. That is because some of the sections mentioned in the definition make it an offence to attempt to commit the relevant sexual offences whereas others do not.
To overcome this difficulty, without over-elaborate drafting, the draftsman, has excluded attempts from the definition here but has brought them back in the two sections in which there is reference to "sexual offence", sections 11 and 21 (1) (b). In both sections reference is made not only to attempts to commit a sexual offence but also to conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of those offences. Therefore, the objective of both amendments is being achieved in the Bill as drafted. Perhaps one reason Deputies may have misunderstood the position is that the explanatory memorandum should have made that clear but apparently did not for which I apologise to the House. I take it that Deputies are happy that what they want to achieve is in fact included in the Bill as drafted.
I am quite happy with what the Minister has said. Indeed, the House should convey to the legal drafts-persons our admiration for their ingenuity.
I move amendment No. 11:
In page 4, subsection (1), between lines 17 and 18, to insert the following:
" `statement' includes any oral or written utterance whether or not it is intended to be assertive and any conduct which is intended to be assertive;".
I must refer to the report of the Law Reform Commission in that I am including in my amendment a definition of "statement" they proposed in their recommendations on the concept of a "statement" as including any oral or written utterance whether or not it is intended to be assertive and any conduct which is intended to be assertive. The amendment is self-explanatory in its wording and is based on a recommendation of the Law Reform Commission. They dealt with this matter exhaustively, in deference to their work, and I contend their ideas should be taken on board if for no other reason than simply to establish in some way the reasons the Minister believes his proposal would work better or why a recommendation of theirs need not necessarily be included in this Bill.
The term Deputy McCartan seeks to define, namely "statement" occurs in several sections; sections 6 (4), 26 (2) and 28 (3) all refer to a person making a false statement whereas section 9 (c) refers to a person having made an inconsistent statement. If Deputies will look at the context within which the term "statement" occurs, that is making a false statement, having made an inconsistent statement, it becomes fairly clear that, in the particular context, these can be assertive statements only. However, I would make the point that the term "statement" appears also in section 15 (4) which provides that the reference in sections 15 (1) (b) to a statement made by a young, alleged victim of child abuse in the video recording of an interview includes "any representation of fact, whether in words or otherwise".
Therefore, it will be clear from that provision that both assertive and nonassertive representations of fact are covered if one looks at the wording, the surrounding circumstances and the context within which it appears. I believe it is not necessary to define "statement" for the purposes of this Bill since it occurs in two contexts, in the context of the sections and subsection to which I referred in the first part of my reply, where it seems clear that assertive statements only are covered and second, in section 15, where it is clear from the wording that both assertive and nonassertive statements are covered.
From that point of view perhaps there is no need to define the actual term "statement" but if Deputy McCartan has anything more to say I am willing to listen.
The Minister's reply has been helpful and informative. However, clearly the context within which the Law Reform Commission dealt with this matter — perhaps I should have confined the application of my amendment specifically to section 15 — is deserving of more thought. It is, I think, the first time in any of our criminal legislation we have endeavoured to define the concept of a "statement" as something other than a written document or oral statement taken from a person, catering for circumstances in which the physical response or reaction of a witness can be borrowed and used. It is particularly important in the context of televising or video recording of interviews when it might be possible to suspect that while there was an oral answer also given, that does not come through from the transmission when a person might simply have given an indication, assertive or otherwise, on a video transmission of a response; when it could be possible that that could be defined or deemed to amount to a "statement".
This is something requiring to be addressed specifically in the Bill by way of a positive definition. Again, the Law Reform Commission spoke about a definition that is inclusive rather than exclusive, allowing for expansion. In short I contend this is a new departure in criminal evidence, one which, while falling within the concept of the original purport of the legislation, in its own way is remarkably significant in that, in a criminal prosecution, we are giving the courts the right to attach evidential significance to the gestures or reactions, other than the oral response, of a witness when asked a question or when positing themselves on a television transmission in response to a question.
The wording in the Bill, as pointed out by the Minister, particularly in the context of the provisions of section 15, and the giving of evidence as constituting a reference to something said or otherwise obtained, warrants greater explanation. Thesui generis principle of interpretation is one in respect of which a defence lawyer would argue that “or otherwise obtained” means that it must be linked in some way to the oral definition, something that is said or otherwise obtained. It may be linked into that and, therefore, have a much more restrictive definition than the Minister originally intended. For that reason the recommendation of the Law Reform Commission should be examined more closely because of its innovatory concept. There is a clear division between seeking to define “statement” and what the Law Reform Commission suggest should be included in that definition, that it does not require something to be said or written, that it can be signalled or indicated by a person's physical reaction. That is very significant and should be specifically provided for in the Bill particularly since we are talking about young witnesses endeavouring to relate an extremely traumatic event; indeed in the context of video recordings, on occasion, we allow the transmission of an interview between a victim and trained personnel when an anatomical doll is used. All of this is very significant and requires a firm, clear legislative statement. The proposition of the Law Reform Commission, which is an inclusive one, is very useful and helpful in this regard. I ask the Minister to consider it afresh.
Perhaps the amendment in Deputy McCartan's name would be more valid were we talking about the scheme envisaged by the Law Reform Commission, to some extent, based on the United Kingdom legislation in that the scheme advocated by the Commission spoke of statements contained in a document relating to documentary evidence whereas, in this Bill, we use the terminology "information contained in a document" as including any non-assertive statements and documents. Therefore, the term "statement" appears in the Bill only within the two contexts I have mentioned. It appears to be clear what types of statements we are speaking about.