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Dáil Éireann debate -
Wednesday, 27 May 1992

Vol. 420 No. 4

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

Debate resumed on the following amendment:
In page 12, line 42, after "accused" to insert "and a person who has concluded a deed of separation with his spouse under which the parties have agreed to live or to continue to live separate and apart from each other".
(Deputy Shatter.)

Because this is a technical amendment, although it would have important implications in the context of this Part of the Bill, rather than making a lengthy speech on the matter, perhaps without further ado we should get the Minister of State's response to the amendment.

Before the Minister of State contributes I would like to signal my support for this concept. It would be reasonable to extend the provisions to include persons who have signed a deed of separation. There is no difference between a situation where the court orders a couple to live apart and a situation where a couple decide to avoid the necessity to go to court by executing a deed of separation to achieve the same ends. The ultimate legal situation is exactly the same; in the first case it is done by way of a court arrangement, agreement or order and in the other case by way of a deed of separation between two adults to whom we had previously given the power and authority to marry but now they are agreeing to live apart. I see no reason the amendment should not be acceptable.

Like Deputy Shatter, I, too, intend in the insufferable conditions in the Chamber — this has nothing to do with those present but merely the temperature — to remove my jacket, if that is in order.

I understand that we are requested to wear our coats but I am not going to impose any further hardship on people who have to endure these appallingly warm conditions. Nevertheless, I will give good example by enduring the conditions, as I must, by wearing coat and gown.

I think Deputy Shatter and Deputy McCartan will find that there is all-party agreement in relation to the conditions in the Chamber.

Amendment No. 45 in the name of Deputy Shatter, which is being taken with amendments Nos. 53 and 57, proposes that spouses who have concluded a deed of separation under which they have agreed to live or continue to live apart should be included in the definition of "former spouse". These spouses would thus be equated with those who have obtained a decree of judicial separation. Accordingly, they would be compellable for the prosecution and a co-accused in all cases except for any non-violent offences committed by the other spouse while the couple were living together.

I am sure Deputy Shatter, who has far greater experience of these matters than I, would agree that in many cases decrees of judicial separation are obtained because the two parties to the marriage cannot agree on how the property should be shared. Therefore, they have to go to court and allow the judge to decide. Therefore, I see no distinction in reality between a case where people have separated and drawn up a deed of separation through their respective solicitors and a case where people go to court to have the Circuit Court judge draw up a decree of judicial separation. From that point of view, I do not see any great objections to the amendment. I would ask Deputy Shatter to withdraw his amendment on the basis that I undertake to introduce an amendment on Report Stage which will be saying substantially what he proposes.

First, I think there is enough political heat generated in the Chamber without all of us cooking. That is why I have taken my jacket off. Anything we have been doing on this Bill all day has been considered with sufficient seriousness. I do not think the dignity of the House will collapse or my brain power will be in some way diminished by not wearing a jacket. Indeed one wonders whether the absence of journalists from the House during Committee Stage of this Bill is due to the political heat or due to the climate.

I welcome the fact that the Minister appears to accept the amendment but I cannot help being somewhat dismayed at the oddity of the Minister's reply, which I would attribute to the usual bureaucratic departmentalese. Apparently officials in the Department of Justice convey a sense to Ministers, be they senior or junior Ministers, that in some way their political manhood or womanhood is put at risk if they accept an amendment from the Opposition benches. It seemed to me that we had got away from that type of approach in some recent legislation when one or two Ministers who survived the reshuffle and who are part of the current Government were willing, on Committee Stage, to take on board amendments from Opposition Deputies whenever they were constructive. This is a constructive amendment bearing no particular party political stamp. There is not a Fine Gael trademark riding on the back of it that will result in the Fine Gael Party suddenly jumping 10 per cent in the opinion polls if the amendment is accepted.

It would take a lot more than that.

Indeed if the Minister accepts this amendment there will not be hordes of Fine Gaelers standing outside Leinster House cheering the accomplishments of the Fine Gael Party. One can take it that most people outside the House would not be particularly interested in this technical amendment. Nevertheless it is of importance, in particular in criminal cases where spouses may be sought to give evidence. In some instances, a spouse, even in a separation situation may regard it as a form of protection to be able to say to the spouse from whom they are separated that they have to attend at court by way of subpoena. That can actually be a form of protection rather than saying: "I voluntarily came along to do you in court", which can be counterproductive. As the Minister quite rightly said, and as I said before lunch, there is no great difference, in the legal context between a judicial separation and a separation agreement. If that is agreed, why is it that Ministers have some sort of possessory instincts over their legislation, whereby some Ministers have a psychological difficulty in saying to an Opposition Deputy: "Yes, that is a good amendment, thank you very much, we will take it on board, if you get the slightest kudos from somebody in Clonakilty who understands what it is about, if you get a quarter of a round of applause at a local Fine Gael branch meeting for some major national achievement on this Bill, well, good luck to you".

This is a sensible amendment. There is no technical reason it cannot be adopted. It is dealt with adequately in the Bill. There is no reason for the Minister not to take it on board and to come back on Report Stage with a different amendment. Before lunch when the Minister proposed an amendment which improved a provision of the Bill, albeit a somewhat flawed improvement, he said to me appealingly, across the House, when I suggested to him that perhaps he might want to withdraw it and come back with the correct amendment. "This is better than what is contained in the Bill already; we will look at it on Report Stage". I would ask the Minister to accept this amendment. If he will not accept it I will put it to a vote because we are trying to be constructive. I see no reason it cannot be accepted. If it is inserted in the Bill and some further minor change is required on Report State, so be it; let us bring it into the House. But let us not get into the foolish position in which an Opposition Deputy, be it myself or Deputy McCartan, produces a technically correct amendment that addresses something that needs to be addressed and the Minister across the floor of the House says: "If you withdraw it I will do the same thing on Report Stage." The only difference on Report Stage is that instead of the amendment being tabled in the name of Deputy Alan Shatter or Deputy Pat McCartan it will be tabled in the name of An tAire Dlí agus Cirt. I do not think the nation will be stopped in its stride if this amendment is adopted. I do not see it as the main news story on the six o'clock or nine o'clock news. I would predict that it would not even hit those insomniacs who stay up sufficiently late at night to watch "Dáil Report" on the television.

Deputy Shatter knows there is a time constraint on this Bill. If he wishes to divide the House, so be it. He wants to achieve something. I thank him for the benefit of the Fine Gael people in Clonakilty and elsewhere, for bringing this matter to our attention. I accept the logic of what he has said. I will introduce an amendment to achieve what he wants to achieve.

I am pressing the amendment to a vote.

Amendment put.
The Dáil divided: Tá, 53; Níl 64.

  • Allen, Bernard.
  • Barrett, Seán.
  • Barry, Peter.
  • Bell, Michael.
  • Belton, Louis J.
  • Boylan, Andrew.
  • Bradford, Paul.
  • Browne, John (Carlow-Kilkenny).
  • Bruton, John.
  • Carey, Donal.
  • Connaughton, Paul.
  • Connor, John.
  • Cosgrave, Michael Joe.
  • Cotter, Bill.
  • Creed, Michael.
  • Currie, Austin.
  • D'Arcy, Michael.
  • Deenihan, Jimmy.
  • Doyle, Joe.
  • Dukes, Alan.
  • Ferris, Michael.
  • Finucane, Michael.
  • Flaherty, Mary.
  • Flanagan, Charles.
  • Foxe, Tom.
  • Gilmore, Eamon.
  • Harte, Paddy.
  • Higgins, Michael D.
  • Howlin, Brendan.
  • Kemmy, Jim.
  • Kenny, Enda.
  • McCartan, Pat.
  • McCormack, Pádraic.
  • McGinley, Dinny.
  • McGrath, Paul.
  • Mitchell, Jim.
  • Moynihan, Michael.
  • Nealon, Ted.
  • O'Keeffe, Jim.
  • O'Shea, Brian.
  • O'Sullivan, Gerry.
  • O'Sullivan, Toddy.
  • Owen, Nora.
  • Pattison, Séamus.
  • Quinn, Ruairí.
  • Rabbitte, Pat.
  • Reynolds, Gerry.
  • Shatter, Alan.
  • Sheehan, Patrick J.
  • Stagg, Emmet.
  • Taylor-Quinn, Madeleine
  • Timmins, Godfrey.
  • Yates, Ivan.

Níl

  • Ahern, Bertie.
  • Ahern, Dermot.
  • Ahern, Michael.
  • Aylward, Liam.
  • Brady Gerard.
  • Brady, Vincent.
  • Brennan, Mattie.
  • Browne, John (Wexford).
  • Calleary, Seán.
  • Clohessy, Peadar.
  • Collins, Gerard.
  • Connolly, Ger.
  • Coughlan, Mary Theresa.
  • Cowen, Brian.
  • Cullimore, Séamus.
  • Daly, Brendan.
  • Davern, Noel.
  • Dempsey, Noel.
  • Dennehy, John.
  • de Valera, Síle.
  • Ellis, John.
  • Fahey, Frank.
  • Fahey, Jackie.
  • Fitzgerald, Liam Joseph.
  • Flood, Chris.
  • Flynn, Pádraig.
  • Gallagher, Pat the Cope.
  • Geoghegan-Quinn, Máire.
  • Hillery, Brian.
  • Hilliard, Colm.
  • Jacob, Joe.
  • Kelly, Laurence.
  • Kirk, Séamus.
  • Kitt, Michael P.
  • Lawlor, Liam.
  • Lenihan, Brian
  • Leonard, Jimmy.
  • Leyden, Terry.
  • Lyons, Denis.
  • Martin, Micheál.
  • McDaid, Jim.
  • McEllistrim, Tom.
  • Molloy, Robert.
  • Morley, P.J.
  • Nolan, M.J.
  • Noonan, Michael J. (Limerick West).
  • O'Connell, John.
  • O'Dea, Willie.
  • O'Donoghue, John.
  • O'Hanlon, Rory.
  • O'Keeffe, Ned.
  • O'Leary, John.
  • O'Toole, Martin Joe.
  • Power, Seán.
  • Quill, Máirín.
  • Reynolds, Albert.
  • Roche, Dick.
  • Smith, Michael.
  • Tunney, Jim.
  • Wallace, Mary.
  • Walsh, Joe.
  • Wilson, John.
  • Woods, Michael.
  • Wyse, Pearse.
Tellers: Tá, Deputies Flanagan and Boylan; Níl, Deputies Dempsey and Clohessy.
Amendment declared lost.

Before proceeding I wish to advise the House that fairly definite statements have been made by Members that in their opinion the normal decorum of the House is not being upheld. Accordingly, I appeal to the two Members who, understandably in the temperature prevailing, decided to remove their jackets, to put on their jackets and endure the heat for the sake of what is considered by all sides as the decorum of the House.

I appreciate the comment you are making, Sir, but I think it is fair to say that the conditions in this House are a disgrace and would not be tolerated by any person working in either the public sector or the private sector, other than the elected Members of this House. I believe the decorum of the House is not based on some post-colonial concept of copying what is done in Westminster. We have been doing serious work in this House on this Bill since 10.30 a.m. The only Opposition Deputies who have contributed to the debate and tabled amendments relevant to last night's session and today's session have been Deputy McCartan and myself.

I do not believe the value of what we are doing is in any way diminished by our not wearing jackets. Less pomposity and more real work is what is required in this House. I am most anxious not to get involved in any rows with you, Sir. Indeed I was going to extend to you an invitation to take off your jacket if you so wished. If the Minister has difficulty in taking off his jacket that is his decision. I do not see why we cannot acknowledge the fact that temperatures change and why, in the important committee work we are doing, it is necessary for us to sit here like some stuffed shirt, post-colonial boys mirroring the practice of the British Parliament. There are parliaments throughout the world where it is quite acceptable for the members to take off their jackets. Yet, here we are in the year of Maastricht and it is not acceptable for us to take off our jackets.

I do not think we need to have a speech about it. The weakness in the Deputy's presentation is that while he is expressing his views he would seem to disregard the views and judgments of everybody else in the House. In that way one must take the consensus view. One cannot in any House presume to have rules and regulations that suit oneself only. If it is the considered opinion of the House, as was indicated during the vote, that the normal decorum is not being upheld one must subject one's personal opinions to it until the matter has been resolved in some other fashion.

With due respect to the considered opinion of the House — and I should say I very much welcome the fact that our colleagues in the various parties joined us for the vote on this issue, as is the norm — other Members have not been sitting here since 10.30 a.m. debating this Bill, and no-one can expect them to do. However we have been here. I did not hear any pronouncement of discomfort from any member of my party and if members of Fianna Fáil are discommoded by people removing their jackets so be it. I am not sure what the qualitative difference is between Deputy Gregory's not wearing a tie and my not wearing a jacket. If it is acceptable for Deputy Gregory not to wear a tie, it should be acceptable for myself and Deputy McCartan to take off our jackets in this sort of climate and weather.

The House always aims at reaching the highest standards and we would never base our opinions on what might be regarded as the lowest one on any particular measure.

In view of the very legitimate protestations by the Deputies in regard to the atmosphere within the confines of the House, could the matter be immediately transmitted to the Committee on Procedure and Privileges who have dealt with it over the past number of years to no effect and no avail? Perhaps you, a Leas-Cheann Comhairle, would use your good offices and the offices of the Ceann Comhairle to ensure that the air conditioning problem in the Chamber will be addressed by the appropriate source at the earliest opportunity.

I appreciate that as chairperson of the proceedings your duty, a Leas-Cheann Comhairle, is to seek to establish the highest levels of decorum. I frankly do not consider that I am being in any way discourteous to you and the House by simply divesting myself of my jacket so that I can better apply myself to the job at hand. You will be aware, a Leas-Cheann Comhairle, that during the last two years the Committee on Procedure and Privileges have sought sanction from the Department of Finance for the necessary funds to install a proper air conditioning system in the Chamber but that this request has been rejected by the Department on each occasion. This means that on very warm and welcome days like today it becomes very difficult to work in this Chamber. I hope therefore you will tolerate what is considered to be my lack of decorum and allow me to continue in the manner in which I have been working for the last few minutes. There is only a short time left in the debate. I take the point you have made and I have no doubt that the Committee on Procedure and Privileges will discuss the issue at greater length. Until then I am very anxious to get back to the important issue of the Bill before us.

I wish to advise the House that contrary to what people may think, the Chair is as human as everybody else and has to endure this heat, but I do this in deference to what I think is required from all in upholding decorum. If we take it that what has happened arises out of the unfortunate and persisting situation of having too much heat one day and a lack of heat the next day and that this is an exception rather than a precedent, then we will proceed.

Absolutely. As you know, Sir, from other aspects of Dáil reform, I hope that taking my jacket off, is yet again an indication of Fine Gael leading the way in a necessary reform of taking the heat out of the House and allowing us to do our work constructively. I am delighted I have Deputy McCartan's support in this.

I will be led nowhere by Deputy Shatter and Fine Gael. I will put on my jacket.

Before we proceed to the next amendment I seek some clarification on the amendment which has been defeated and which the Minister previously accepted. Does the Minister still accept the amendment even though it has been defeated by the House? Can I have this point clarified?

Under Standing Orders it would not be possible to resubmit that amendment on Report Stage as it has been defeated and ipso facto cannot be——

Even by the Minister?

The Minister can cogitate on that amendment to his heart's delight but I am advising that it cannot be resubmitted.

I think the correct position, Sir, is that that amendment was only a definition of a separation agreement and the two later amendments can be taken on board.

They have not been reached yet.

They were only discussed together.

Section 19, as amended, agreed to.
SECTION 20.

Amendment No. 46 is in the name of An tAire. Amendments Nos. 48, 51, 54 and 55 are related. I propose, therefore, for discussion purposes to take amendments Nos. 46, 48, 51, 54 and 55 le chéile.

I move amendment No. 46:

In page 13, line 1, before "The" to insert "In any criminal proceedings".

This is merely a drafting amendment.

Amendment agreed to.

I move amendment No. 47:

In page 13, lines 1 and 2, after "competent" to insert "and compellable".

This amendment deals with a very central and essential point. Part IV of the Bill is very welcome in that it deals with one of the most anachronistic and insulting provisions in criminal law with regard to women in particular and spouses in general. Previously spouses were deemed neither competent nor compellable to give evidence against their other half in proceedings. As crime is very much a male-dominated activity, this was a provision against women who could neither be considered competent nor compellable because, as with the age old notion, the woman was the property of the husband and was a lesser person once drawn into the marriage arrangement. It is very curious that one of the arguments as to why this proposition should be maintained so long in our law was that there was a certain sanctity to marriage, and within marriage the woman was the lesser of the two people. The provision has been invidious in the areas of violence and sexual abuse as well as in the areas we are anxious to deal with in the legislation. There was a limited provision in earlier legislation that in those circumstances a woman was competent and, on occasions, compellable, but by and large the general principle militated against her involvement in these proceedings.

Therefore the provisions in Part IV providing for the woman are necessary, and when I say "woman" I mean spouse, but for the greater part of these proceedings it is the woman who is affected. The Minister and the Government recognise that in all criminal proceedings a woman is competent. My amendment goes further. I propose that not only should she be competent but she should also be compellable. I reject the concept that confidentiality in the marriage arrangement is sacrosanct, thus making it impossible for the prosecution to rely upon the testimony of a spouse in circumstances where that testimony would be crucial to and capable of bringing a proper conviction.

It has been argued that by breaking down the element of compellability one is in some way invading the so-called sanctity of marriage as it exists. I would argue that where a spouse engages in the unilaterial action of committing a crime, by those actions alone they are attacking the community and invading the sanctity of the union between the husband and wife. To go out and commit crime is a breach of the confidence that exists in the basic union of marriage. It is rarely that the wife or the husband, whichever is the innocent party, would give prior approval of the illegal activities of the other spouse in the commission of crime. There are people who work in concert not only within the marriage bed but outside in the criminal world, but they are the exception. The first betrayal of the confidentiality of the marriage is by the person committing the crime. Why should the person be allowed to apply, in their defence, the very concepts that they have thrown out the window by becoming involved in the crime in the first place?

For example, suppose it happened that a husband, without consulting or getting prior approval from his wife — as a matter of policy we should never contemplate a situation in which a spouse can give approval to the commission of a crime — commits a robbery using a firearm, makes good his escape and goes home where his wife totally unaware of what has happened, observes him disposing of the weapon and the proceeds underneath the bed. Subsequently, the Garda visit the house and discover the weapons and the proceeds, but do not find the husband. They interview the wife who says: "It has nothing to do with me. I saw my husband come in and hide the proceeds and the weapons." Under the law as proposed by the Minister the Garda, who may require the woman's testimony in order to prove that the husband deposited the items in the bedroom, might be told that there is some principle with regard to the sanctity of marriage and the need to maintain confidentiality — which is being abused by the husband — which prevents them from compelling the wife to go to court to testify.

It makes a nonsense of our law not to provide that in those circumstances a spouse is competent and can be compelled to attend court for the purpose of giving testimony on behalf of the prosecution. I would go further and suggest that often it would be in ease of the spouse, in circumstances where they disapprove of the other's criminal activities, to be compelled and subpoenaed to give testimony. Very often in those circumstances a spouse who would like to give testimony cannot do so because she is not compellable and her husband may tell her to stay away from the court so that he will go free. In the circumstances the Minister is providing for, there is nothing to compel the spouse to come forward although she wishes to testify but is reluctant to do so because of pressure from the husband.

We should follow through with the logic of what the Minister is providing for here. In introducing the general proposition that spouses in all criminal proceedings are competent, I am not interfering with the progress being made. We should go the further logical step of adding to the formula that spouses are also compellable and can be required, in the interests of justice, of the fair prosecution of the offence and of the community at large, to attend and give the relevant testimony. I hope the Minister accepts the amendment.

Deputy McCartan will note that section 20 deals with competence of witnesses, whereas section 21 deals with compellability of witnesses. I would have thought that what Deputy McCartain is proposing would be more appropriate to section 21, but that is only a small point. Deputy McCartan has put down one or two amendments to section 21 and we can discuss the matter further at that stage. My initial thoughts on this matter are as follows. The proposal that a spouse should be compellable for the prosecution in all criminal proceedings against the other spouse would be a very radical departure from the present law and, indeed, from the recommendations of the Law Reform Commission. It appears, as a result of a judgment of the Court of Criminal Appeal — DPP versus JT in 1988 — that a spouse is compellable against the other spouse only in cases of assault or of a sexual offence against a member of the family.

In section 21 we are proceeding to adopt that on a statutory basis. We are also making a spouse compellable in the case of violence or a sexual offence against any person under 17, whether a member of the family or not, which is quite an extension on the present law, even taking into account the decision of the Court of Criminal Appeal.

The question of compellability of spouses is a delicate one. It involves striking a balance between the need to have constitutional protection for the institution of marriage on the one hand, and the equal need to defend and vindicate the personal rights of those who have suffered injustice. There will always be differing opinions when a balance has to be struck.

It also occurs to me, that if two people are living together in a stable relationship, one can be compellable against the other. I accept that there is an anomaly here. It is a difficult situation. We are providing a pretty radical extension to the law as it stands. We are trying to strike a balance because a balance has to be struck. At present I am not inclined to go all the way suggested by Deputy McCartan.

I wish to tease this out a little further. It is a difficult matter and there is not an ideal solution to it. Obviously, where there are violent crimes, threats of violence or sexual offences, and the types of offences referred to here, a spouse should be compellable.

If in a good marriage the wife of a member of the IRA who was engaged in gun-running asked her spouse to stop this activity, but he did not, and was charged in the courts, that woman would not volunteer as a witness because she would not want her husband to continue with what he was doing. Indeed, she may be concerned that his life was at risk, that if he continued doing what he was doing, not only might he be imprisoned, but another subversive organisation might have him shot or the organisation of which he was a member might have him shot, for a particular reason. That woman could not volunteer to give evidence but she would want her husband to stop even if it meant he had to serve a sentence of imprisonment.

The only way one can give evidence is if one is subpoenaed to court and one is a compellable witness. One may feel that that is a desirable thing to happen in the long term, but as a spouse one needs the protection of the subpoena to give that evidence. A spouse needs to be able to say, "I have no choice; I have to go to court; I have been subpoenaed, and if I do not go to court I will be put in jail." Perhaps there will never be such a case, and perhaps that is idle speculation. The argument that has always been made in the past for not compelling spouses to give evidence, is that there is an assumption that compelling a husband to give evidence against his wife or a wife to give evidence against her husband will break up what might be a happy and viable marriage.

I wish to put the other side of the argument. It is possible that a subpoena, and a person being compelled to give evidence on occasions, is actually a protection, to allow someone to give evidence one feels one should give, in a way in which one is not given a choice. One cannot do it by choice and that is the other side of the argument. It may not be right, but it is a value judgment as to whether what Deputy McCartan is saying is correct or should be so confined.

A spouse is in a unique position. A spouse is the only competent witness who is not compellable generally speaking. We should ask, why people should be compelled to give evidence in court. In criminal cases the only reason anyone would be compelled to give evidence is that someone has committed an offence, and a person is on trial for committing that offence and there is a belief that a person can give evidence in court which will help either to prove that that person has committed an offence, or assist in establishing that person's innocence. The compellability aspect is to ensure that a reluctant witness is made available to a judge and jury in a trial to allow them to get at the truth. A judgment has to be made as a matter of public policy as to whether in all criminal cases the courts should be facilitated in getting at the truth or whether there is an overriding public interest that says in some criminal cases the court should only be allowed to get part of the truth.

I do not want to keep harping back to the alleged incest case in Waterford, which got much mention in this House, where a person, alleged to be the father of the child, allegedly had sexual relations with the child. The charge was dismissed because the mother did not go to the court to give evidence and was not subpoenaed. It would seem that under section 21 that mother is competent and compellable. The Minister might clarify that. In that case I wondered whether the common law was such that that mother was competent and compellable.

In cases of that nature it would seem that the overriding public interest is that the court should get at the truth. Let us assume that there is a major robbery in one of our banks tomorrow morning in which £2 million is taken and there is no violence. Arguably, there would be the threat of violence as someone would have to have a weapon in his hands. Let us assume that the bank was robbed at a week-end and there was no one in the bank, that bank robbers who had a compulsion to watch videos of bank robberies did the classic thing of getting into a premises next door to the bank, breaking through the walls over the week-end and making off with the cash amounting to £1 million. Is there not an overriding public interest in the wife of the alleged bank robber being a competent and compellable witness to give evidence in that case if it is believed that the wife can give evidence which would be helpful? For example, if three days after the robbery she finds that there is a present of a £60,000 sports car from her husband, outside the house, though she knew the previous week he was unemployed and on social welfare benefit, would it not be worthwhile and in the public interest that she would be a competent and compellable witness? What overriding public interest is there in not making her a competent and compellable witness?

There is an artificial view about the sanctity of marriage in this context. The overriding public interest, certainly in instances of major crime as opposed to petty crime, what lawyers call indictable offences rather than misdemeanours, would indicate that where a serious offence is committed, a spouse should be a competent and compellable witness. It would seem that for minor offences or misdemeanours nothing should be done to place a marriage relationship at risk and a spouse should not be compellable, albeit he or she should be competent. I do not fully agree with Deputy McCartan's amendment as I tease it out, but the approach that we are adopting in the Bill is not adequate. In the context of all serious offences there is a strong case to be made that a spouse should always be a competent and compellable witness, but for minor offences that case does not stand up.

One other issue arises on this and is of relevance as I understand the provisions in this Bill as they interact with the current law. What I am saying relates to Deputy McCartan's amendment to sections 20 and 21 where there is interaction. If I marry in Ireland, live in Ireland, get a divorce in Haiti or the Dominican Republic or use an accommodation address and get a divorce in England, then marry a second person in England, Haiti or the Dominican Republic and return to Ireland, I have in theory celebrated a bigamous marriage. We have a large number of people whose marriages have broken down and who have got divorces of convenience outside this country and then remarried and are living with their new spouses in Ireland. All of these marriages are bigamous and invalid. We probably have the highest proportion of persons committing bigamy per head of population in Ireland than any European State. If anyone does a table of it we will be at the top.

There are two reasons bigamy prosecutions do not take place. The first is that we turn a blind eye to it. If, however, the first spouse disapproves of what has happened and tries to get the Director of Public Prosecutions to bring a case or tries to bring a case personally, the first spouse is in the ironic position currently of not being a compellable witness and not being competent either. She cannot actually give evidence in court saying. "I am married to this man, this man has celebrated his second marriage and it is bigamous". Under this legislation one will be able to become a competent witness but unless one has a judicial separation, one is not compellable. This is where we stand at the moment.

I am not suggesting that we start prosecuting everyone who is committing bigamy currently in this State. If we did that we would clog up our courts for the next ten years. We would have to multiply by two the total number of lawyers in the State simply to defend the poor people brought before the courts. The Minister might confirm that, welcome though this section is first it will mean that we can now have a lot more bigamy prosecutions and, secondly, some spouses where there is a judicial separation will be compellable to give evidence in such cases and others will not. What will happen if some of the more fundamentalist groups, like SPUC, decide to start a war on second spouses and start looking for prosecutions? Could there be dangers if all wives were compellable to give evidence in respect of such situations? I am merely speculating. It is a complicated area and the complications are exacerbated by our antiquated approach to social issues in the divorce area and as it inter-relates with the crime of bigamy. We should come back on Report Stage looking at the compellability of spouses in circumstances where a spouse is charged with a serious offence that is not simply an offence of assault or an offence involving violence or sexual abuse. There is a public policy decision to be made here of some importance. As the Minister has said, it is a very long time since this was addressed. Indeed, I am not sure this has ever been fully addressed in this House. A lot of this is common law. If we do not get it right in this Bill, perhaps in 50 years time we will return to it. I think we should get it right this time.

I agree that in the Waterford case, as I understand the law at present, the spouse would have been compellable as a witness under the decision of the Court of Criminal Appeal in 1988. Deputy Shatter raised a question about bigamy prosecutions. He is quite right in saying that the spouses will now be competent witnesses. That is correct. A subpoena can force somebody to come to court, presumably under threat of imprisonment or whatever, but no subpoena can force somebody to tell the truth when they come to court. As the law stands at the moment or if this Bill is passed in its present form, if a spouse who is competent to give evidence against the other spouse does not want to come to court for some very good reason such as intimidation, fear or whatever, we can make them compellable to appear in court but we cannot force them by legislation to tell the truth when they go to court.

In relation to the IRA type case which Deputy Shatter mentioned, has it occurred to the Deputy that making the spouse in that case compellable might actually put the spouse in danger? If a spouse is made compellable and for some reason or other does not want to go to court, whether because of intimidation or desire not to wreck the marriage, I do not think she is going to be a very good witness if she is forced to come to court. She may turn out to be a hostile or an untruthful witness. If we make spouses compellable in every case and the spouse for some reason, whether through fear or through desire to save the marriage or whatever, does not obey the summons, what sanction can we reasonably impose? It is a question of striking a balance and there will always be a dispute when it comes to striking a balance. Deputy Shatter does not fully agree with Deputy McCartan. Deputy Enright might not fully agree with either of them. When one is striking a balance one is of necessity going to leave people on all sides of the argument not fully satisfied. We are constrained by the terms of Article 41.31º of the Constitution whereby the State pledges itself to guard with special care the institution of marriage on which the family is founded and to protect it against attack. Perhaps if it were not for that provision we might be a little freer to make spouses compellable in a larger number of cases than we are proposing. It has been acknowledged by Deputies that we are making a pretty radical extension to the law as it stands. I am disinclined to go any further at this point, bearing in mind the human and the constitutional considerations. From that point of view I am not inclined to accept the amendment.

This argument about constitutional considerations is spurious entirely. I do not believe any provision of the Constitution can be employed to assist someone to suggest that there is an onus on the Stage to protect the sanctity of a marriage that is given over to conspiracy or confederacy in crime. In other words, if a husband and wife are confiding in each other about crime, I do not think the concept of marriage as envisaged in the Constitution in those circumstances is one that deserves constitutional protection. On the other hand, if there is breach of trust between the parties, the better interests would be served by the entitlement of the State to call one or other spouse as a witness. I do not believe that constitutional requirements demand of us to use the Constitution to protect a spouse under a guise that he or she has abused in the first instance by going out, without confiding in the other spouse, and committing a crime against the community and by definition against the other spouse in the broadest possible sense. I do not really think the Constitution is a worry in this regard.

In this debate I am in disagreement with the Law Reform Commission. They did not borrow the Constitution as a reason. They said there was the notion of the sanctity of the institution of marriage and that it was in some ways an extension of the privilege of the right against self-incrimination, a curious concept built on the notion that the family or the marriage creates a bonding or a union of one.

The issue that has to be thrown into the balance is the individual rights on the one hand as opposed to the community interests on the other. I accept the proposition as a better refinement of what I am trying to achieve here or what is being suggested by Deputy Shatter that we cannot gradate, at least in areas of serious crime. We have introduced an element of gradation in this where we have made a spouse compellable in instances of sexual abuse, in instances of violence and in instances of crimes against children under a certain age. We have introduced the notion of gradation and a balance between community interest and personal interest.

I do not wish to take away from what has been achieved in terms of the improvements incorporated in sections 20 and 21. They are significant in themselves but in my view there is need for a further extension of the logic that subtends the improvements already in sections 20 and 21. This is something we will come back to on Report Stage because it is a matter I would be anxious to press further.

In conclusion I appreciate fully, as an Opposition person working on the Bill, the way in which the Minister of State has taken on board the views and points made by me, at least, and I am sure by other Deputies on this side during the course of this debate. It has been refreshing.

As it is now 5 p.m. I am required in accordance with the Order of the Dáil of this day to put the following question: "That the amendments set down by the Minister for Justice and not disposed of are hereby made to the Bill; that in respect of each of the sections undisposed of that the section, or as appropriate, the section as amended, is hereby agreed to; that the Schedule is hereby agreed to; that the Title, as amended, is hereby agreed to; that the Committee accordingly report they have considered the Bill and have made amendments thereto and have amended the Title to read as follows: "An Act to amend the law of evidence in relation to criminal proceedings and to provide for connected matters."

Question put and agreed to.
Bill reported with amendments.

I take it that amendments tabled in the names of Opposition Deputies will be resubmitted by the Minister on Report Stage?

No, that is not the motion.

When is it proposed to take Report Stage?

Next Wednesday, by agreement between the Whips.

I have no objection to that proposition but the Minister and the Government Whip — who is present — should take on board the fact that we did not reach some substantial amendments so that adequate time be devoted on Report Stage to debate all amendments.

All amendments.

I thank the Opposition spokesmen for their constructive and helpful attitude during the course of this debate and for the suggestions they made to us, some of which we are prepared to take on board. Their contributions certainly will have helped to improve the Bill.

Report Stage ordered for Wednesday, 3 June 1992.
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