I welcome the Minister's commitment to provide some sort of administrative practice code in relation to the Pigot recommendations. My difficulty with that is that it would have no statutory force. I am not quite sure to whom the code will be directed. The Minister might clarify that for us. If something of that nature is to be put in place there is no reason why we cannot take a copy of the relevant provision from the Criminal Justice Act, 1984, which provided the rules of conduct to be made in relation to interviewing to be brought before the House and confirmed by statutory instrument. Such a practice direction or code could be dealt with in that way so that it would have some legal force. Is the Minister prepared to undertake to the House to make available to Members of the House a particular form of direction he has in mind, before Report Stage, so that we will know precisely how it will fit into the section?
With regard to the Minister's responses to the amendment that I tabled, I accepted that one could deal with the "no leading questions" issue with a different form of wording. However, what the Minister says about the provision which would require the person who conducted the interview to be available to the court is a cause of great concern. There are criminal trials which on occasions either cannot go ahead or cannot use evidence because a witness is dead. Unfortunately, there is not much we can do about that. However, in the overwhelming number of instances where this technique is to be used, unless the social workers and the child psychiatrists of this country are to be struck down by an unanticipated disease it is highly unlikely that we will have a problem with large numbers of people conducting interviews dropping dead between the date of the interview and the date of the trial. What is of concern, as Deputy McCartan pointed out, is that the professional who undertakes an interview may very well go abroad for professional reasons and when that interview is being conducted it is not clear that the video, for example, will include not just the child but the questioner. The Minister might clarify this.
I do not know whether an enthusiastic questioner of a child might not, by facial reactions to the answers given, signify approval or disapproval of what the child is saying or might not do that by his mannerisms. Indeed, when a child gives a response to a question asked, that response may be open to a variety of interpretations. From the point of view of the prosecution it may be of importance that the interviewer be present to give evidence as to what the interviewer believes the child meant by what the child said. From the point of view of someone against whom an allegation is made, he may want to ask the same question of the interviewer and he may call an independent professional witness with similar qualifications who has viewed the video to indicate whether his understanding of what the child meant coincided with that of the interviewer. The questions an interviewer asks, on the assumption that they are not all written out in advance, may be stimulated by a reply received to a previous question.
In a criminal trial where we start off on an assumption that one is innocent until proven guilty, the idea that someone who has conducted a central interview of an alleged victim on an incident that has given rise to the trial in the first instance, and that that person may not be present to give evidence, is extraordinary. It conjures up images of the book by Franz Kafka, The Trial, when unknown evidence was being given against someone who could not quite find out what it was he was being accused of by unknown people. We are talking about a criminal trial. I would envisage constitutional difficulties with this section, if the State sought to prosecute a case and produced a video with, for example, the person who conducted the interview being out of the country and the accused's lawyers not being able to even subpoena that person to attend that court, and the State insisted that nevertheless this whole interview could be presented to the court even though that person was not available. I can see huge problems with that. I am not raising this as a debating point. It is a problem, an issue which we would need to address properly. It is very easy to put this to a vote but in the light of what the Minister and Deputy McCartan have said, I would like to go back and look at this amendment, in particular the phraseology of the leading questions portion of it. It would seem to me that that amendment could be better phrased. That is the usefulness of this procedure. I will not press amendment No. 39 but I will propose an amended version on Report Stage.
I hope the Minister will listen seriously to what I am saying about the person conducting the interview being available to the court. If we maintain that the courts will have to judge the fairness of these interviews and what can or cannot be admitted, we will be setting up a series of trials upon trials. There will be a series of court cases to tease out what is fair and what is not. Rather than facilitating the criminal justice process we will be creating a line of cases awaiting hearing while various appeals go through. In so far as we can lay down the parameters of the application of this legislation, we have a duty to do so.
I am not happy with the Minister's response on the issues relating to the use of anatomical dolls and I am considering pressing that amendment.