We come to amendment No. 11 in the name of the Minister in respect of which recommittal is necessary. Can I have a motion moved that the Bill be recommitted in respect of this amendment?
Criminal Evidence Bill, 1992: Report Stage (Resumed) and Final Stage.
I move: "That the Bill be recommitted in respect of amendment No. 11."
Question put and agreed to.
I move amendment No. 11:
In page 8, line 5, to delete "on indictment".
The need for this amendment was brought to notice by the Incorporated Law Society. As section 7 (1) stands, any party to criminal proceedings — the prosecution or the accused — must serve at least 21 days notice on the other side if it proposes to tender any documentary evidence which is made admissible by this part of the Bill. It must serve also a copy of the documents in question and a copy of any certificate of compliance with the conditions of admissibility set out in section 5. If the documents are being served by the prosecution they may be included in the book of evidence.
The Bill proposes that these requirements of section 7 (1) apply only in the case of proceedings on indictment, because it was assumed that in the case of offences being tried summarily any possible prejudice to an accused by the production of documentary evidence at the trial could be met by adjourning the proceedings. Adjournment is not normally feasible at a jury trial. However, this assumption has been found not to be valid. For one thing the prosecution is now supplying documentary evidence in advance to the defence in certain summary cases.
More importantly, however, the absence of prior notice under section 7 (1) in summary proceedings could place the defence at a disadvantage, even with an adjournment to consider the documents. That is because the defence would not automatically be entitled to insist on the prosecution adducing oral evidence in support of any of the matters specified in a certificate of compliance. At present, as section 6 (3) stands, this entitlement applies only in indictable cases where the defence has been served in advance with the documentation and has signalled an objection to its admissibility.
For these reasons we are extending to summary proceedings the requirement of giving advance notice of documentary evidence. This will allow either party to the proceedings to object to the admissibility of the documents and thereby to insist on having oral evidence adduced by the person who certified that the conditions of admissibility in section 5 were complied with.
This amendment is very succinct on the face of it, but it raises some very important aspects of the whole process of criminal prosecution and particularly the method of prosecution at summary level in the District Court. Later on I have an amendment dealing with the whole question of evidence to be adduced and an amendment on adducing evidence in the District Court to obviate the farcical situation that exists at the moment where large numbers of Garda Síochána members are obliged to come from overnight duties, having arrested someone, and to sit in the court the next day to give evidence viva voce of arrest, charge and caution. The whole notion of reducing that type of evidence to written form and allowing it to be presented to the court by an officer holding custody of all the prisoners coming from one police station seems to be a sensible development that would save huge costs in time and effort. We did not get a chance to debate this idea on Committee Stage and I hope that tonight we will get that opportunity. It is raised in an important way by the Minister's amendment.
For too long our District Courts as courts of summary justice have really been run on the basis that documentary notice or evidence has never been relied upon or supplied to the defence, either as an effort at fairness of procedure on the one hand, or at being efficient on the other. I welcome this amendment because it takes on board a view raised by the Law Society, which I think will add substantially to the workings of the District Courts.
The Minister will have to have regard to one other point in giving effect to it. That is to ensure that members of An Garda Síochána have adequate secretarial back-up when they come to the District Court. It is a phenomenon in the Dublin metropolitian police courts that the prosecution of most of the police cases in summary hearing is done by the Garda officers themselves, unlike in the provincial District Court, where the prosecution is done by an officer of the rank of inspector or occasionally superintendent and the inspector or superintendent is serviced by a secretarial staff and office located in his — rarely her unfortunately — police station. It means that they come prepared with their brief so to speak. The file is done out with all the statements typed up and witnesses assembled and there is good backup services to the prosecution there. That does not happen in Dublin. My understanding is that it is also a phenomenon in some of the busier larger urban provincial courts, where the Garda officers themselves do all the preparatory work. From experience in Dublin I say it would be a very difficult task for members of An Garda Síochána, working in a busy Dublin police station, to type up and prepare written notices and have them available for service on the defence. The Minister will have to act on this issue, either by enhancing the services in the State Solicitor's Office at Ship Street by expanding the secretarial services, if not the professional staff, there, or by ensuring that in the police stations from which the officers come there is adequate secretarial service available. Otherwise they will be very much burdened and unable to give full service. Ultimately many cases may have to be adjourned simply to provide adequate opportunity for the Garda to serve and make available the documentation. I ask the Minister to bear that in mind.
I welcome the development. I hope it signals a new era to some degree in introducing common sense order into prosecutions in the District Court which in Dublin city are chaotic at the best of times, as anyone can see who cares to visit them.
Amendment agreed to.
Amendment reported.
Amendment No. 12 in the name of Deputy Shatter has already been discussed with amendment No. 7.
Amendment No. 12 not moved.
I move amendment No. 13:
In page 9, between lines 33 and 34, to insert the following:
"(d) evidence may be admissible under this section by means of the rules set out in this Part, subject to the conditions herein as shall be applicable.".
This is a straightforwad proposition that speaks for itself. It deals with the admissibility of evidence. I made this proposition on Committee Stage and the Minister of State undertook to look at the matter. He has not taken it up by way of his own amendments and I would like to hear the reasons that he believes it is unnecessary. If he has anything further to say on it I will listen to him and consider my position. I repeated it simply to pursue the matter and make sure it would be aired at some stage.
Deputy McCartan is quite right in saying I undertook on Committee Stage to look at it. I have had it examined in the meantime in the light of the comments he made then. The amendment is to section 9, which allows evidence to be given attacking the credibility of the person who has supplied the information contained in documents being made admissible under this part of the Bill. Deputy McCartan wishes to ensure that any such evidence of credibility can also be given by way of documentary evidence, provided the other conditions stipulated in this part of the Bill are complied with. I am advised that there is nothing in the section to prevent this being done. Indeed, paragraph (c) specifically provides for documentary evidence being admissible to prove that the supplier of information made a statement on another occasion which is inconsistent with the information supplied. The paragraph says that the inconsistent statement, which can be oral or in writing, shall, "if not already admissible by virtue of section 5", be admissible for the purpose of showing that he has contradicted himself. So it appears that no special provision is needed to make documentary evidence admissible for this purpose and I hope Deputy McCartan will be reassured on this point.
Yes. I am happy that the Minister and his officials have looked at the matter. To the extent that they assure me, I am content to withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 14:
In page 9, line 44, to delete "that Act" and substitute "the Criminal Evidence Act, 1992".
This again is simply a repeat. It struck me that the drafting of the section needed some attention. The marginal heading of section 10 refers to the Criminal Procedure Act, 1967. Then the first paragraph of the section lists the paragraphs of the subsection it purports to amend. When it gets to paragraph (f), having referred in the previous paragraph to the Criminal Evidence Act, 1992, it simply refers to "that Act".
That could be construed as referring to the Criminal Procedure Act, 1967. I felt we should clarify that the term "that Act" referred to the 1992 Act as opposed to the 1967 Act. The Minister has not taken on board my amendment. If he can assure me that he is 100 per cent satisfied with the paragraph as it stands I will not press it. I think it is somewhat ambiguous and unclear. My amendment was designed to clarify the position beyond doubt.
I can give Deputy McCartan that assurance. As I said on Committee Stage, I have no objection in principle to his amendment but I do not think it is necessary because, as I understand it, it is clear that the expression "that Act" refers to the Criminal Evidence Act, 1992. I have been advised by the parliamentary draftsman that paragraph (f), where the expression occurs, will now be part of section 10 of the Criminal Procedure Act, 1967, and that if reference were to be made to the 1967 Act in that section the expression used would have to be "this Act".
There is not a great deal of difference between the terms "that Act" and "this Act". In order to put the matter beyond any doubt, we should include the full title of the Act, as was done in the previous paragraph. However, I am not going to ask the House to divide on this amendment.
Amendment, by leave, withdrawn.
I move amendment No. 15:
In page 10, between lines 24 and 25, to insert the following:
11.—In any criminal proceedings evidence of the passing of a resolution by either House of the Oireachtas, whether before or after the commencement of this section, may be given by the production of a copy of the Journal of the proceedings of that House relating to the resolution and purporting to have been published by the Stationery Office.".
The Documentary Evidence Act, 1925, provides that an Act or a Statutory Instrument may be evidenced by producing a copy of it purporting to have been published by the Stationery Office. However, it does not provide for evidencing the passing of a resolution of either House of the Oireachtas and this amendment is designed to cover such a situation.
I have no difficulty in supporting this amendment. It seems remarkable that it has taken us this long to notice the absence of this provision in our criminal law to date. The person who was responsible for uncovering this anomaly between Committee Stage and Report Stage deserves to be commended.
I have no problem in supporting this amendment.
Amendment agreed to.
Amendment reported.
I move amendment No. 16:
In page 10, between lines 24 and 25, to insert the following:
"PART III
BLOOD TESTS IN DETERMINING PARENTAGE IN CRIMINAL PROCEEDINGS
11.—In this Part—
`blood samples' means blood taken for the purpose of blood tests;
`blood test' means any test carried out under this Part and made with the object of ascertaining inheritable characteristics;
`excluded' means excluded subject to the occurrence of mutation;
`the Minister' means the Minister for Justice.".
This amendment was discussed earlier so I presume we cannot discuss it further. Having made the case for this amendment, unfortunately I did not get a response from the Minister. I do not know whether the Minister wants to respond to the points I made on this amendment. I would have liked him to outline to the House his views on this amendment. I explained in some detail the reasoning behind this amendment and dealt with an objection raised by the Minister on Committee Stage. I do not know if the Minister can properly respond within the rules of the House.
We are very limited on Report Stage. Does the Minister of State wish to make a comment?
No.
Amendment put and declared lost.
I move amendment No. 17:
In page 10, between lines 24 and 25, to insert the following:
"12.—(1) In any criminal proceedings before a court in which the parentage of any person is in question, the court may, either of its own motion or upon application being made to it, give a direction for the use of blood tests for the purpose of assisting the court to determine whether a person is or is not a parent of the person whose parentage is in question, and for the taking, within a period to be specified in the direction, of blood samples from the person whose parentage is so questioned, from any person alleged to be a parent of that person and from any other person or from any of those persons.
(2) The court may at any time revoke or vary a direction previously given by it under this section.".
Amendments Nos. 16 to 22, inclusive, deal with the same matter. They seek to insert a new Part in the Act to extend to the courts the power to provide for genetic finger-printing and to allow judges to order genetic finger-printing where disputes arise in criminal cases as to the parentage of a child. All these amendments stand or fall together and, in the light of amendment No. 16 not succeeding, I do not see any reason to press the remaining amendments.
Amendment, by leave, withdrawn.
Amendments Nos. 18 to 22, inclusive, not moved.
I move amendment No. 23:
In page 10, between lines 34 and 35, to insert the following:
"(d) such other further offences as the Minister may prescribe by regulations agreed on motion by both Houses of the Oireachtas.".
I ask the House to have particular regard to this amendment as I believe it deserves support. It proposes to give the Minister the power at such future date as he or she considers appropriate to extend the operation of this Part of the Bill by an order of both Houses of the Oireachtas. The Bill is restricted to dealing with certain types of offences. Under section 11 it is specifically restricted to dealing with sexual offences, offences involving violence or the threat of violence to a person or attempts or conspiracy to commit such offences. I accept that there has to be a start in some area and, because of the very difficult problems being encountered in cases involving sexual or marital violence or aggression towards women generally, I am happy that the Government and the Minister have elected to make a start in this area. However, I earnestly hope this is only a beginning.
This Part of the Bill deals with the entitlement of the court to hear evidence through a television link and the giving of testimony in reasonable surroundings, having regard to the traumatic nature of the charges, the age of the witness and their mental condition. The Bill recognises as a matter of fact, if not principle, that the giving of evidence in the court in certain circumstances can be a very traumatic experience and that the production and presentation of that evidence can, by reason of those circumstances, be severely hindered. We are trying to create a reasonable environment, using technology, multiple locations and intermediaries, which will assist people in giving their testimony. It is accepted that the interests of justice have been frustrated in many cases for no other reason than the inability, reluctance or sheer terror of people in attempting to give their version of the facts as sought by the prosecution or, on occasion, the defence.
I welcome this development in the area of criminal evidence generally and I hope it is only a beginning and that the considerations which apply in this area of the law can be applied to all our criminal law. The Minister should have no difficulty in accepting that an elderly victim of a serious robbery or burglary who has to identify in court the person whom he or she believes committed the crime will suffer as much trauma as a person who has to give evidence in a case involving sexual abuse or violence.
The measures we are proposing in those cases should be extended to witnesses in all other appropriate cases. My amendment proposes that rather than confining the provision to the offences as set out in section 11 we provide in the legislation for the extension of the provision to other offences as the Minister deems appropriate. I also propose in the amendment that the Minister must seek the approval of the House by way of positive motion.
It would be a pity if, having introduced this innovative idea into legislation, we simply leave it at that. Any Minister and anyone with experience in this House will recognise that there is a long list of legislation to be dealt with in the House. It is not a simple or straightforward matter for Ministers to steer through legislation, be it of an innovative or amending nature. Rather than a Minister at a future date realising that this is a sensible way to approach difficult cases generally and having to come back with amending legislation to change this section we should include in this Bill that general power so that at some stage in the future it would be simply a matter of seeking approval of the House by way of order or motion to extend the operation of the provision to other areas.
This is an important proposition based upon the good principles and ideas in the Bill. We should be working to extend the provision to all areas of criminal law as appropriate. I agree with Deputy Taylor that the principles of this Part of the legislation should not be confined to criminal law but should be extended to cover many traumatic cases on the civil side also, cases in which people might be required to give evidence. I recognise that we are dealing with criminal legislation but I am merely saying that we should at least give enabling powers so that as the process develops and we become more accustomed to it the Minister can come back to the House to extend its ambit to cover other areas.
The amendment in the name of Deputy McCartan proposes to allow the categories of offence to which this Part applies to be extended by ministerial regulation approved by both Houses of the Oireachtas. As things stand at the moment I am not sure that this is necessary. As section 11 stands, Part III of the Bill applies to all sexual offences and any offences involving violence or the threat of violence. These are offences which are recognised as causing severe trauma for young victims if they have to give evidence in court in the presence of the accused. Sexual offence has been defined very comprehensively in section 2 and the reference to offences involving violence or the threat of violence is also extremely wide. I am not aware of any other offences that need to be added to the list in section 11, but if there are any it would be better to add them now. If on the other hand new offences are created in the future which are of a similar nature to those already listed in the section, or offences for which we want to extend the provisions of this Part of the Bill, the legislation creating the offences can provide for the application of this Part to them. That would be a better way to give effect to what Deputy McCartan wishes to achieve.
There is some merit in the amendment proposed by Deputy McCartan. In one of his examples he painted the picture of an elderly person whose home is burglarised and who may not be subjected to physical violence. There may be no suggestion of an assault or a threat of violence but, nevertheless, that person may feel threatened in the context of what happened and may feel personally intimidated about giving evidence in a courtroom. In those circumstances there would be a criminal charge based on burglary rather than on an attempt at assault or any other offence that comes within the ambit of section 11 as it is currently drafted and that, of course, would not be a new offence but one that has existed for some time. I do not wish to delay the House but I could conjure up a number of other offences which do not fall within the area of sexual assault, physical assault or a threat of physical assault which could give rise to criminal proceedings and in respect of which a primary witness might be intimidated by court proceedings — they may be of an age at which they have difficulty coping with court processes. That is just one example.
There may be merit in taking on board Deputy McCartan's suggestion. I do not know whether the Minister has received advice as to the validity of additional offences being included by way of ministerial order as opposed to by the enactment of legislation, but it seems in the light of ministerial orders made under other legislation that that is possible. This seems to be a sensible and constructive amendment. We should not take the view that in the event of this approach working if a new offence is created we may wish, in legislation, to extend its ambit to this approach. However there are a number of very old offences on our Statute Book for which it may be a good idea to give the courts discretion to allow evidence to be dealt with in the manner provided for in this Part of the Bill.
I would urge the Minister to take on board Deputy McCartan's suggestion. It cannot do any ill to the Bill but can only assist it. If it is not taken on board tonight perhaps the Minister would consider the suggestion in the context of the Seanad debate on this matter. It is inevitable that some amendments will be made to the Bill in the Seanad. If this type of approach was included in the Seanad and the Bill had to come back to this House it would be disposed of in a few minutes.
In the light of the Minister's extraordinary silence on the whole series of amendments that I did not press this evening, I hope that between now and the Seanad debate the Minister will consider them. There is no explanation on the record of the House on Report Stage to indicate why the Government were apparently opposed to those amendments. The Seanad will afford a further opportunity to improve the Bill in a constructive way.
There are many possible offences that could be covered by this provision — I have referred to one — and many circumstances in which the use of technological relay of evidence would be of great assistance. If we accept the view that it is proper in some circumstances, I see no reason why it cannot be proper in all circumstances where it is considered an advantage. As someone who has given testimony in criminal courts during my years of practice, I know that it can be a very daunting experience. People of a very frail or nervous disposition may feel more at ease and have a better capacity to give testimony before the court, irrespective of the nature of the crime, if assisted in the way proposed.
If it is right in some circumstances to aid people because of age or mental incapacity it is right to be disposed to extend that facility to all circumstances where in the interests of justice the person should be aided and assisted to feel more composed and at ease. That is the basic idea behind this amendment.
It is a remarkable twist of events when a Minister does not want further power and an opportunity to extend his own legislation. Opposition spokespersons expect to be fighting against the Minister taking to himself various different powers and controls over legislation. Here we are offering an opportunity to the Minister to take up an idea and build it into the legislation, which would enable the Minister to act by way of motion before the House at some future date, and it is being refused. That is a pity. This amendment would certainly not do any harm and it would be there for reference. It should be there for reference and in order to expand on the good ideas here.
I am prepared to consider it.
Amendment put and declared lost.
I move amendment No. 24:
In page 10, to delete lines 35 to 39 and substitute the following:
"(1) In any proceedings for an offence to which this Part applies a person other than the accused may give evidence, whether from within or outside the State, through a live television link——
(a) if the person is under 17 years of age, unless the court sees good reason to the contrary,
(b) in any other case, with the leave of the court.".
Amendment agreed to.
Amendment No. 25 not moved.
Amendment No. 26 in the name of Deputy McCartan. Amendment No. 27 is an alternative and amendment No. 49 is related. I suggest, therefore, that we discuss amendments Nos. 26, 27, 49 together.
I move amendment No. 26:
In page 10, to delete lines 41 to 44.
This proposition animated most of the discussion on Committee Stage. The proposal was that in all proceedings under Part III of this Act and any preliminary proceedings relating to it, wigs and gowns should not be worn either by judge, barrister or solicitor acting in the proceedings. I was heartened to receive correspondence from a member of the Bar who outlined the history upon which wigs and gowns were first worn by members of the legal profession. It apparently related to the reign of one of the Jameses and it was an element of fashion. The fashion became the norm, but it appears that lawyers were not able to divest themselves of this fashion over the centuries and they still persist in wearing these odd garments. We do not need to go into it at great length here. The point was made that the requirement to wear the peculiar attire relates to some statutory provision and that the Bar have now come up with this ingenious proposition that they need legislation or some form of ministerial action to be taken before they can divest themselves of their attire. Perhaps the Minister who was a member of the Bar may be able to advise us on this.
We had a very long and somewhat animated discussion on this on Committee Stage. The House should within reason legislate for this proposition. As I understand now, from the deliberations of Committee Stage, there is all-party opinion in the House that the wearing of wigs and gowns is an anachronism and we should provide for abolition in our legislation where it is being suggested that in certain circumstances they should not be worn, namely when the television link system is being applied. This should apply throughout the system regardless of the television link. I hope the Minister will agree to the spirit if not the wording of the amendment.
Amendment No. 27 implies that the provision in the section relating to the removal of wigs and gowns while evidence is being given through television link, will not apply where an intermediary is used, for the very good reason that where an intermediary is being used, the child witness will not be able to see the questioner. There is, therefore, no need to bring in a legislative requirement to ask the barristers and the judge to divest themselves of their wigs and gowns.
With regard to amendment No. 26, I undertook on Committee Stage to make inquiries and to consult the Bar Council about this. Court dress is not merely a matter of convention. Order 119 of the Rules of the Superior Courts states:
3. Senior and Junior Counsel shall appear, when in court, habited in a dark colour, and in such robes and bands and with such wigs as have heretofore been worn by Senior and Junior Counsel respectively, and no Counsel shall be heard in any case during the sittings unless so habited.
The Fair Trade Commission which was asked to report on restrictive practices in the legal profession in 1990 said that lawyers should wear sober dress in court, but recommended the disappearance of wigs.
Did they say lawyers should also be sober in court?
That would be very difficult to enforce. The report described wigs as being anachronistic and intimidatory. In an article in The Sunday Tribune dated 3 May 1992, by Kevin Dawson, there are a number of comments by fairly senior members of the Bar on this topic. For example, Mr. Séamus McKenna, S.C., and former chairman of the Bar Council is quoted as saying:
Whatever about abolishing wigs, I would not be in favour of doing away with gowns. At the end of the day you have to preserve some kind of dignity about court proceedings. But I see no reason in the world to be against abolishing wigs. They are terribly unhygienic and uncomfortable.
Like conditions in this House.
Mr. Adrian Hardiman, S.C., is quoted as saying:
I am in favour of some form of uniform dress. Whether that should include wigs and gowns I don't know but I have no particular dislike of them.
Mr. Michael McDowell, S.C., and sometime politician, is quoted as saying:
I wouldn't be particularly sorry to see wigs go. I'm fond of it and I have a very nice one but I think there's a feeling in terms of public perception that it must not be a modern, up-to-date profession.
He also has very little hair.
It goes on:
I don't see why gowns should be dropped and I think it would be wrong if people were to wear any old thing in court.
A senior counsel in a letter to me recently said that citizens of this country often express amazement that barristers are forced by Order 119, Rule 3 of the Rules of the Superior Courts to wear wigs in court and that many would choose not to do so if the choice was theirs. He said also that many women consider it inappropriate to be required to wear an item of male apparel.
On Committee Stage I undertook to contact the Bar Council about this matter because I had been advised when replying on Committee Stage that the Bar Council had set up a small committee to consider court dress and that this committee were working most diligently and were shortly due to make a recommendation. Deputy McCartan, who is of a more suspicious nature than I, assured me there was a possibility that the council might be dragging things out, that the principle nolumus mutari might apply and that this was simply a stalling device. I spoke to the director of the Bar Council, Mr. John Dowling, who told me what was going on, but I requested something in writing which I could read into the record of the House. Before I read the following letter, I enter a caveat that it may have been a mistake on Mr. Dowling's part or on my part, but Deputy McCartan was the only person who tabled an amendment on this matter on Committee Stage. However, he was supported by Deputy Shatter and a number of other Deputies. I may have wrongly given the impression that both Deputies had tabled amendments but since then I have corrected this point and I have made it clear that the amendment was tabled by Deputy McCartan but was supported by Deputy Shatter, among others. I received the following reply, dated 29 May 1992, from the chairman of the Bar Council, Mr. Peter Shanley, Senior Counsel:
Dear Minister,
As you requested in the course of a telephone conversation with our Director, John Dowling, on Thursday 28 May, I have set out below the current position of the Bar Council and the Bar as a body, on the questions of court dress and the Criminal Evidence Bill 1992.
It is the strongly held view of the Bar generally that the proper administration of justice, the efficient conduct of court business, and the appropriate degree of respect for the rule of law is assisted by a number of very different factors. When cases come to court, most especially the criminal courts where the reputation and liberty of the accused and others may be at stake, it is most important that all the participants in the court process are conscious of the fact that what is taking place is serious, that there are rules to be followed, most importantly the giving of truthful witness, and that wilful misleading of the court is not readily countenanced. It is the very formality of the court, its procedures, including the attire and demeanour of legal representatives which together lead to an atmosphere where accused and witnesses cannot but be aware of the importance of the occasion.
Any move which detracted from this degree of formality, which might be perceived as lessening the importance of the occasion, most particularly, but not exclusively in criminal cases, would be seen by practicing members of the Bar as a retrograde step. Especially so in a process which is already under considerable strain and in which those seeking to maintain respect for the institutions of the administration of justice must seek to do so in surroundings which are often far from ideal.
The Bar cannot see why advocates, who have a particular role to play in the court process, should not be entitled to retain distinguishing characteristics by way of attire in the conduct of court business. Apart from the general points made above, from a straight-forward practical point of view, any person in frequent contact with the courts will readily comprehend the advantage to all concerned in court officials, gardai, counsel, prison officers and indeed the presiding judge, all having distinctive attire or uniform.
It is against this background that the question of court dress should be examined. It is the view of the Bar that both the bench and the advocates before the court should, in the normal course, wear appropriate court attire. Irish barristers, traditionally, have worn wig and gown and the rules of the court lay down the requirements. The Bar itself has not got the authority to alter these rules which are made by the Superior Courts Committee. It would be true to say that there is a divergence of opinion within the Bar only on the question of the continued use of the wig. But even those who favour the abandoning of the wig are overwhelmingly of the view that an appropriate form of court dress should be retained. In an effort to reach the broadest consensus on the matter the Bar at general meeting decided to have the position of court dress in Ireland examined in the light of the court dress used by advocates in the courts of the European Community. A special committee was appointed by the Bar Council and has been considering the matter and collecting information from Bars of other EC jurisdictions. We are aware that advocates and judges in all EC jurisdictions wear distinctive court dress, as do advocates and judges in the European Court and the Court of Human Rights. We have also asked the Bars of the three neighbouring jurisdictions for indications of their views on revision of their current dress codes. We have also written to other common law jurisdictions which have modified their dress code for advocates in recent times for information and views. Although the general meeting last year gave no fixed date for the special committee to report, the committee itself expects to be able to report to the next annual general meeting which is due to be held in the term commencing 5 October 1992.
On the question of taking evidence from children on two way video links, as proposed by the Criminal Evidence Bill, 1992, the Bar Council accepts that children giving evidence, especially those who may have been abused by an authority figure, may need to be dealt with differently. It is not proven that the form of dress of those in court who may be questioning the child has any bearing on the way in which the child may give its evidence, but the Bar Council is prepared to accept that it is not a matter on which it should take issue in relation to this legislation.
Finally, the Bar Council is aware that two Members of the Dáil—
—that is probably my mistake as I already mentioned—
—have tabled amendments to the Bill to extend the Bill's provisions with a view to prohibiting the wearing of court attire in all aspects of sexual abuse cases. The Council is not aware on what basis this amendment is being proposed. One cannot readily see, apart from the position of children, why one type of criminal case should be so singled out. The Council has not been consulted by either of the Deputies concerned. We believe that the abolition of court attire in the Family Law Courts has been, to say the least, a mixed blessing but we are not aware that the Deputies concerned have contacted the Family Laywers Association for views as to the impact of the changes made in this sector. The Council is also concerned that these moves have been made without the kind of consultation and discussion which would be taken for granted in every other walk of life. We believe that the approach taken by the Bar itself, in examining the appropriateness of its attire is the correct one, it is being done voluntarily in a methodical and sensible fashion. It is proposed that the Bar will consider the report of the Committee on Court Dress in an equally sensible way. The Council would hope that those concerned will take note that the profession last year undertook a major review of its practices and made far reaching changes in the way in which members of the Bar offer their services. We hope that members of the Government and the Oireachtas will accept that with respect to the matter of court dress the profession which has had a particular form of dress for more than 200 years, should be allowed to get on with its own review, which is now in progress, and that everybody, members of the Bar and others will then be in a more informed position to deal with the matter.
If there is any further information on this matter in which I may be of assistance please do not hesitate to contact me.
Yours sincerely,
Peter Shanley SC,
Chairman.
I have already outlined my position on this matter. In view of the fact that some distinguishing form of dress — a simple black gown, for example — is used in other EC jurisdictions, in the European Court and in the European Court of Human Rights, I can see the argument in favour of court dress; but personally I am totally opposed to a continuation of the practice of wearing wigs in court. I have taken advice on the matter and I have been advised that if the Bar Council do not change their attire, which I think they should do voluntarily, we will be in a position to do so for them by way of legislation in this House. I am loath to accept the amendment in the name of Deputy McCartan because it gives rise to the undesirable situation that in one category of criminal case, counsel would not wear wigs and gowns but that in cases outside the family law area they would wear wigs and gowns. Let us suppose that the Bar Council in their wisdom decide to at least get rid of wigs while retaining some form of simple gown in court, they would not be able to wear this simple gown in such cases because of the effect of this legislation. I do not wish to create that anomaly. If we so desire we could include a provision in every piece of related legislation that wigs and gowns should not be worn, but that would represent something akin to the Chinese method of death by a thousand cuts. I would prefer to see it done at one fell swoop.
I am giving the Bar the opportunity to change their mode of attire, particularly in relation to the removal of wigs. They have told me they expect the committee to report before the end of the year, within the term commencing on 5 October. I hope to meet them between now and then and I will make it clear that if they do not agree to abandon the nolumus mutari attitude they will be changed. I do not want to be responsible for legislation which could create an anomalous position within a short time. I am using this opportunity to express the wish, desire and hope that the Bar Council are serious when they say they will make changes in this regard in the very near future. I will use the opportunity when I meet them to tell them that if they do not change they will be changed.
I listened with some interest to the Minister's response and with some incredulity to the contents of the letter which he read. I have achieved one or two things in politics. One of my achievements was getting the Judicial Separation Bill through this House. While there was controversy about all sorts of provisions in the Bill, there was very little controversy about the provision which requires members of the Bar and the Judiciary to get rid of wigs and gowns in family law cases. That applies in the District Court, the Circuit Court, the High Court and equally to the Supreme Court hearing appeals.
I am one of very few solicitors who appear relatively regularly in both the High Court and Supreme Court in cases, all of which are of importance to the people involved and some of which are of considerable importance in the general area of family and constitutional law. Prior to 1989 I very often found myself standing naked in the High Court and Supreme Court, left with nothing but my suit, tie and shirt, while members of the Bar, often two senior and junior counsel, all bewigged and begowned, would be on the opposing side. I never felt that the job I was doing was any less serious than the job they were doing just because I did not have a slightly moth-eaten investment sitting on my head and a large gown trailing behind me.
The time has come to abolish wigs and gowns. We did it in family law cases in the 1989 Act. I listened with astonishment to the statement by the current leader of the Bar that this was a mixed blessing in family law cases. I have not seen any problems arising from it. It has reduced some of the intimidatory formality which used to be part of family law cases, when unfortunate couples whose marriages were at an end went to war with each other in the court system rather than resolving their difficulties by agreement in a more civilised way. It has taken a little bit of the heat out of it. I am happy to report that justice is still being properly administered in the courts three years after the passage of that Act, despite the fact that the judges and the barristers have lost their wigs and gowns. There is no real lack of formality. The importance of the occasion is not lost on the unfortunate people who find themselves in court. To suggest the solemnity of the occasion is in some way lost because the wigs and gowns have been taken away is bordering on the ridiculous. For the Bar or any member of the Bar to say that to abolish wigs and gowns would pose a threat to the proper administration of justice and the importance of formality of the occasion is idicative of how out of touch with reality the Bar is. I welcome the Minister's comments. If the Bar will not voluntarily dip into the 20th century they should be dragged screaming into it.
Have members of the Bar ever considered how ludicrous they look in their manner and mode of dress, which is some 200 years old and certainly 100 years out of date. If you or I wandered down Grafton Street wearing a barrister's wig we would be given very odd looks by the passers-by. If one stands back and observes members of the Bar in their mode of dress it adds a degree of ludicrousness to the situation. This was highlighted some years ago in an excellent piece written by Nell McCafferty in The Irish Times. She reported a case at District Court level. Not all District Court judges wear wigs nowadays, but in those days they all did. A district justice was sitting in court No. 6 in Morgan Place in Dublin wearing his wig and gown when there came before him a member of the Hare Krishna movement who had been arrested in Grafton Street while walking along the street chanting and jingling their bells. The judge apparently ticked off the accused people in the dock and suggested that their mode of dress indicated their lack of respect for the court and also clearly indicated that they were people of some obvious criminal intent and that it was as well that the guards had lifted them in Grafton Street. Nell McCafferty, in a realistic remark, observed that the Hare Krishna people perhaps looked more like many other people in the mid-20th century, particularly young people, than the judge sitting in court wearing the garb of his forefathers that no one would be seen dead wearing in the streets of Dublin.
It is correct to say that in other jurisdictions on occasion lawyers have distinguishing characteristics such as wearing a form of robe. In the European Court members of the Irish Bar manage to appear with great solemnity and a great deal of distinction and present their cases without wearing wigs.
Or gowns.
My recollection is that they do not wear gowns. The English, who tend to be rather quaint in these things, take their wigs and gowns to the European Court. The Irish Bar have achieved a degree of distinction at the European Court by moving away from the colonial times, which, it appears, they still have a great deal of affection for when they sit in this island. In the area of legal expertise their cerebral regions have functioned admirably well in the European Court without their having to wear wigs and gowns. Deputy McCartan's amendments have again given us the opportunity to discuss this issue.
I agree with the Minister that if we abolish wigs and gowns for some criminal cases we should abolish them for all criminal cases, indeed we should abolish them completely. They add nothing to the administration of justice or to the solemnity of matters. Is it not extraordinary that lawyers in the United States Supreme Court and lower courts all manage to function with great distinction without wearing this rather quaint, outdated garb which has been handed down through our colonial past? The time has long since come when we should get rid of it.
I would ask the Minister, if for no reason other than to satisfy a personal curiosity, to send a reply to that particular letter and to ask Mr. Shanley to expand on the mixed blessing, to which he referred, in the context of the removal of wigs and gowns in the area of family law for barristers. The only mixed blessing that I can recall which helped to highlight the idiosyncratic nature of the garb of the Bar Library was a case in which I was not invoved but which took place some weeks after the Judicial Separation Act, 1989, became operative. I am informed there was a very substantial family law case involving a dispute between a husband and wife which took place in or about December 1989 in which there was a great deal of money and property at stake. In effect the husband and wife were doing battle with each other in the courts as to how the family assets should be dealt with on their separation. I understand there was also a family company in which each of them had shares. The entire proceedings derived from a marital breakdown problem but the case had, in legal terms not only a judicial separation element in the context of the 1989 Act but also a company law element.
Apparently this caused a great deal of distress to members of the Bar. Barristers on each legal team had a meeting on the morning before the case to decide how they should dress. The Judicial Separation Act said they should not wear their wigs and gowns but they were concerned that the company law element in the case might require that they should. As I understand it, they decided that the nature of the case had derived from a marital problem and one team did not want to appear with wigs if the other team was not wearing them and vice versa. There was agreement on both sides that no wigs and gowns would be worn for the hearing of the case. They all went into the High Court suitably bereft of wigs and gowns. They sat in court and waited for the judge to come out. When the judge came out they all bowed to each other as is their tradition. The judge and the legal team sat down and much to the horror of the legal team the judge appeared in wig and gown. The judge obviously concluded that the company element of the case dictated that rule 119, which the Minister has read out, required the wearing of wigs and gowns.
Nothing was said by judge or counsel during the course of that morning. The counsel got together at lunchtime and decided this was mortally embarrassing and that they had better put their wigs and grows back on. They put their wigs and gowns back on and walked into court at 2 o'clock. The judge came in and they all bowed to each other and the counsel sat down dressed in their wigs and gowns, Whey they looked up at the judge they discovered that he had got rid of his wig and gown because he had reached the conclusion that under the 1989 Act he should not have been wearing it. Needless to say neither judge nor counsel said anything to each other about their attire during the course of the afternoon. Harmony was restored on the following day when the case proceeded to the second day of hearing and everyone agreed that the wigs and the gowns could be abandoned. I think they should be abandoned. It is ludicrous that the rules of the superior court contain the provision which the Minister read out and with which I am familiar.
To highlight the idiosyncratic nature of it, I recall another High Court case in which I was personally involved some years ago and in which a very learned and respected junior counsel was appearing opposite me. We were at the end of day two of the case, and as a solicitor I was no more properly dressed than I am here and the barrister was wearing his wig and gown. The judge indicated that he wished to call us both into his room because he had a serious message which he wished to communicate. I did not know whether I had offended the judge in some way that might be to the detriment of the people I was representing or why we were being called in like naughty school children. The barrister who was on the other side did not appear to know either why we were being called in. The reason we were called in was that the judge had reached the conclusion that the barrister under the code of dress of the Bar Library was not properly dressed; that is, he had not worn a waistcoat. It was a hot day, he had been in court all day and was wearing his suit and his wig and gown but no waistcoat. The barrister got a very serious ticking off by the judge for not wearing his waistcoat. Of course I had no waistcoat either but he did not have to tick me off because I was, happily, a solicitor and solicitors are not required, under rule 119, to do anything in particular.
The reason I was called in to witness the embarrassment of the barrister was that the judge was concerned to ensure that I did not feel he was having a private chat with the barrister which was in any way prejudicial to the case. If any of that can be regarded as adding to the solemnity of the administration of justice or the credibility of it I have serious and grave doubts. We should get rid of wigs and gowns, and waistcoats could be worn voluntarily, and I ask the Minister in the context of what he is doing to look to the Bar to keep to the time scale they are talking about. If by 31 December 1992 he has not received a letter from the Bar informing him of radical changes in the mode of dress and if there is not a sitting of the superior court rules committee to amend rule 119, the Minister should early in the New Year, introduce the legislation required to kick the cobwebs out of the Bar Library and to bring them fully and properly into this century and lead them by the hand into the next century.
It is unbelievable that we have spent the last 42 minutes discussing this amendment and this antiquated procedure. For obvious reasons it is being discussed with greater gusto than any other element of his Bill. As one who has spent very little time in court at any stage during my life and having listened to the latter, I think it is unbelievable in the modern world that people would insist on maintaining this antiquated approach to their business. I get the suspicion that they are hopeful that when the report comes in it will come down firmly on the side of the wigs and gowns.
Those of us who are not familiar with court proceedings could well imagine that people appearing in court for the first time could be upset when they see these people dressed in such an unnatural fashion. That would be the most ludicrous part of it for the ordinary lay person. If we were to come to the conclusion that this interferred with the normal course of justice, then we should immediately take appropriate steps. Not alone is it antiquated and a relic of previous centuries but many people who attend court for the first time would be knocked sideways by the visual impact they would have to suffer, something they would never have seen before except perhaps in comic books. It puts an additional stress on people who are already in stressful situations. If the House were to judge that that was a regular occurrence, then we would have a valid case for removing rule 119, with which I am not very familiar, or at least what they wear make voluntary. Once you say people cannot wear this and that you must specify what they may wear. If it was voluntary I wonder whether people would wear elegant wellingtons into court and upset people's sensitivities. It would be rather a surprise if someone were to go into court wearing short trousers but it would not be imtimidating. My feeling is that the rule should be done away with immediately and we should do so if we have to power. We should leave it to the opinions of people outside to do the decent thing at that stage.
Would the House agree that perhaps, as with the gowns, thoughts are somewhat worn out on his item and we should move on?
I should like the opportunity to make a brief comment in reply as the mover of the amendment. If the House would bear with me for a moment, I have an anecdote to add to those related by Deputy Shatter. There is a story told of a man, now a judge who in his early days as a barrister appearing before the late Mr. Justice Murnaghan in the High Court duly togged out in the attire that barristers wore then and still do. After he addressed the court, the judge looked at him and said, "I am sorry, I cannot hear you.". The young barrister raised his voice a little so that the judge might well hear him. The judge in a stern voice, as he was wont to do, remarked again, "I am sorry, I cannot hear you". The young barrister, who was getting a little uneasy, turned up the decibel level just a little further and no one could be in any doubt that everyone in the court, including the judge, could hear him. Mr. Justice Murnaghan again said, "I am sorry, I cannot hear you". At that stage a senior member of the Bar told the barrister that he was wearing the wrong coloured shirt that was not in keeping within the orders or the tone of what was expected — apparently it was a little too bright or gaudy. The barrister had to withdraw and change his attire.
The Minister of State must be thanked for corresponding, and I also appreciate Mr. Shanley's efforts in making a lengthy and detailed reply. This is not an issue that should delay the House but it is of some significance. The amendment recognises that those people we are going to hear and see by way of a television link and who have difficulties because of age and so on relating to the nature of a charge should be accommodated by being addressed by people who are attired normally. That is a reasonable proposition with which the Bar says it does not intend to take issue. It would add to the comfort of the person being exmained in that he or she would not be addressed by someone attired in a wig and gown.
The reasons for introducing this proposition are the same as those forwarded for the introduction of the proposition in family law courts. I would have to take issue with Mr. Shanley and the Bar Council if they hold to the position that it has not been a good and progressive phenomenon in the family law courts. Any report I have had is that the concept works well and is well appreciated. No one has ever suggested that the dignity of those courts has been interfered with or eroded in any way due to the absence of wigs and gowns.
An interesting feature of Order 119 is its reference to the need for attire to be worn in courts during the sittings. If one goes to any vacation sitting of the High Court held throughout August and September one will find crowded courts occupied by judges and barristers who are wearing not wigs and gowns but ordinary, decent, sober dress. It would be ludicrous for anyone to suggest that the dignity of those courts and assemblies is missing. In relation to the issues that are tried at length in those sittings, issues and cases that would be dealt with in a normal High Court sitting, such as a bail application or a point that would arise by way of injunction, no one would suggest that the truth is not arrived at or that witnesses all of a sudden become giddy and throw scorn at the courts. The dignity of the court is maintained.
The Minister said we were adopting a piecemeal approach. On Committee Stage I had something to say about that. The first thing I must say about a piecemeal approach is that the Minister's amendment, and the order in which the legislation is being brought in, will require, during an actual case, lawyers and the judge to go to the court dressed in one garb; when a certain stage is reached in the proceedings they will have to take that garb off and throw it underneath their seat, bench or table and, when that portion of the evidence is concluded, the lawyers and judge will put that garb back on. That is a ridiculous, piecemeal approach to the issue. The carnival for which the Minister is legislating, and the way he is going about it, is preposterous. With all due respect, it is a ridiculous proposition.
I am proposing an amendment within the confines of the legislation we are debating. The Minister is proposing a regime of television link in certain cases. He has rejected my idea that he should hold the power to extend that concept as circumstances arise but criticised me when I suggested introducing some order to the way proceedings may be conducted because that order is being confined to a certain range of offences. The Minister has borrowed a rather disingenuous argument from Mr. Shanley. Mr. Shanley asks why, if it is to be introduced in one instance, it is not being introduced in all cases. I am using the legislation as drafted and working within the parameters as presented to me. I am merely saying that, rather than have the preposterous practice that half-way through a case when there is a move to the television screen all of the gear comes off, at the outset lawyers and the judge simply should not wear the garb. If that proposal was taken on board it would act as an incentive to help those concerned with the voluntary process we hear talk about. As other Deputies said, eventually those concerned would come to their senses.
I also wish to take issue with Mr. Shanley on his complaint that I did not consult the Bar Council. I do not believe it is my duty to go about seeking consultation with and taking advice from various agencies. I consider the Legislature to be the primary arena in this context. It is a matter for the Bar Council to be appraised of and addressed on the deliberations and considerations of what goes on in this House. If they see fit they should convey to me their views on whatever matter is current and relevant within the context of legislation. I do not have any regard to Mr. Shanley's remarks with respect to the Family Lawyers Association because I am well advised as to the experiences in that regard and I have to disagree with his views on that.
I felt it appropriate to make those points in response to the debate. I am happy the Minister of State has put on record a very firm view. I am equally thankful to other Members who contributed to the debate and made their views known, on Committee Stage and Report Stage. Although this discussion has taken some time, it has nonetheless been very useful and fruitful.
Does Deputy McCartan wish me to put the amendment?
No, the issue had a good airing and I am happy to let it stand on the basis of the Minister's comments.
Amendment, by leave, withdrawn.
I move amendment No. 27:
In page 10, line 42, after "subsection (1)", to insert "(except through an intermediary pursuant to section 13 (1))".
Amendment agreed to.
An Leas Cheann Comhairle
Unfortunately, notwithstanding Deputy Shatter's protestations — and, indeed, mine — we have not yet reached the stage where it is regarded as appropriate or in order to divest ourselves of our jackets in the House. I know it is bothersome but, until such time as it is regarded as appropriate — I know the Deputy's patience is probably wearing thin — I must advise the House of the position in this regard.
Sir, I appreciate that and I have no desire to say anything which would keep us here any longer than necessary. Having spent the last hour criticising the Bar for wearing wigs and gowns it is ironic to be in this position. I do not know what the temperature is in this part of the Chamber. I went outside for a few moments and found that it is considerably cooler. I reckon that the temperature here is probably in the region of 70º or 75º. I do not wish to be disorderly and perhaps the Members present — there are not too many of us — would agree to suspend the rules of the House to get the Bill through this evening. Conditions are intolerable and I do not think we should have to put up with them. I said this a number of weeks ago. I do not know what is happening in the Committee on Procedure and Priv- ileges. We have been discussing this Bill since 3.45 p.m. and there is no reason for sitting, sweltering, in this Chamber at 10.15 p.m. It is thoroughly unpleasant.
Officials of the House very kindly turned on a fan but conditions are still unpleasant. I do not know how we will solve this problem. If we cannot organise our own affairs so that we can work in liveable conditions how can we organise the affairs of the country? I ask you, Sir, to take the same commonsense and pragmatic approach which you did on the last occasion so that we will not delay the proceedings of the House. I am as anxious as any other Member to complete this Bill but we have at least another hour to go and conditions are appalling.
Maybe we will find some via media but again I must advise the Deputy of the position. I indicated earlier that the problem is compounded by the lights burning all day. I inquired about them and I was told that they are essential because of the television cameras. They generate a certain amount of heat. However, it is my duty to uphold the rules of the House and instead of taking issue any further with Deputy Shatter, we will adjourn for ten minutes during which time the Chamber could be cleared of some of the uncomfortable air. The other alternative is to ask Deputy Shatter to be removed from the House and I do not want to do that.
I appreciate your sympathetic approach to the problem which affects all Members. What has happened in this regard since the last occasion when this matter arose in the House? We have just had an hour long debate on the antiquated approach of the Bar and now we are worried about conditions in the House. I do not want to hold up the proceedings of the House for ten minutes as it is late and colleagues are waiting to have this Bill dealt with. There will also be Adjournment debates and I do not want to adjourn for ten minutes. I am just anxious to solve our problems in this House but there does not seem to be any likelihood of doing so. People who are seriously affected by conditions in the House should continue to protest about them. I am not prepared to continue to put up with these conditions, which are outrageous.
If the Deputy is not prepared to dress in accordance with the rules of the House, I have no alternative but to ask him to leave the House, although I do not want to do that. I am as uncomfortable as the rest of the Members and I did whatever was possible in this regard. Nevertheless, I have to live with the rules of the House until they are changed.
Where is that rule? This has taken me by surprise and I wish to ask for your assistance in this regard. I do not want to adjourn as I am anxious to discuss this very important Bill. However, I have total sympathy with Deputy Shatter's position. I am not offended by the fact that he removed his jacket and I am at a loss to know the rule which applies.
If we all took an individual approach in regard to what was appropriate, each of the 166 Members could indicate what was acceptable——
Where is the rule?
When this situation arose previously many Deputies expressed their disappointment and annoyance because what they regarded as a matter of decorum and appropriate dress for the House had not been observed.
I accept that.
If Deputy Shatter does not put on his jacket I will adjourn the House for ten minutes.
Sitting suspended at 10.20 p.m. and resumed at 10.30 p.m.
The House adjourned to give Deputy Shatter and other Deputies an opportunity to refresh and re-fortify themselves for the remainder of the business. I note, however, that Deputy Shatter does not seem to have enjoyed the same refreshment as the rest of us and not yet——
On a point of order, I have been sitting with Deputy Shatter since 4 p.m. and I can tell the House, even though we had a break for tea, that he has been exceedingly uncomfortable all afternoon. He is suffering from hay fever and has found it very difficult to maintain his usual composure right throughout the afternoon——
Perhaps he needs a doctor rather than the Leas-Cheann Comhairle.
If you do have medical skills perhaps you would use them now. As I said, he has been exceedingly uncomfortable. Most of the Deputies who have been around the House all day have been saying that they have found it difficult to work in their offices, in the Library and elsewhere. Everyone agrees that it is a lot worse in here. I believe therefore that we should be entitled to—
That is not a point of order, Deputy Cotter.
It is commonsense.
But it is not a point of order.
Can I be of help to you, Sir? I regret the fact that we adjourned for ten minutes, having regard to the serious business before the House, as I am anxious to get on with the debate on this Bill which is a very important one. I do not want to delay the House any further or, because of my personal regard for you and my friendship with you, to put you in any more difficulty or cause you any embarrassment. I certainly do not want to be put out of the House. That is the last thing I want to see happen.
I and the other Members of the House who have been engaged in the debate on this Bill have used the time that you extended to us to consider the position. It is my understanding that there is nothing in the Standing Orders of this House with regard to modes of dress. I gather that the view that is being taken is that it is traditional to wear jackets. I should point out again, as I did four weeks ago, that it is also traditional to wear ties but it seems that Deputy Gregory does not have to wear one. Indeed, it also appears that women Members of this House are not required to wear jackets. It seems, therefore, that we have rather odd and inconsistent traditions.
Having looked into the position, I understand also that it is both your wish, as you have stated, and that of the Ceann Comhairle that an air conditioning system should be provided in the Chamber. The problems in this Chamber are not due to weather conditions only — they are partly to blame — as you have correctly stated, they are also due to the heat caused by the special lighting for the television cameras. It is my understanding that the Committee on Procedure and Privileges, which includes the Ceann Comhairle, held a meeting and that they were of the view that we should have an air conditioning system in the Chamber. I also understand that a request was made to the Department of Finance for funds to provide such a system but this request has been turned down.
I very much value your support and that of the Ceann Comhairle in seeking to have proper working facilities provided in this House. In deference to you and out of respect for you and the workings of this House I have no desire to delay matters further as I am very conscious that Members on all sides of the House are discommoded by the fact that we are sitting late and that this is adding to the difficulty. However, I hope that I have highlighted again this evening the problem facing us. I appreciate the support of my colleague, Deputy Cotter, who has been sitting with me, but I do not think my hay fever has caused this problem. The problem has been caused by the heat in the Chamber which from time to time affects every Deputy.
In deference to you, Sir, it is my intention to put my jacket back on but I should say that unless the Department of Finance provide the necessary funding for an air conditioning system in this House I will not on a future occasion, if I have to spend five or six hours in the House to carry out serious legislative work and I find the conditions totally unacceptable, sit here wearing more clothes than are necessary for the purposes of a tradition which has no relevance having regard to the fact that we now have special lighting for the television cameras. I have been reliably told that the temperature at this time of night in this Chamber is 75 degrees. It is unacceptable that we have to work in this heat and that we should preserve a tradition whereby we are expected to wear jackets in view of the fact that the Department of Finance will not provide funds for an air conditioning system in the Chamber.
Having said that, I am going to put my jacket back on in the hope that we can get on with the business of the House. I hope also that if other Members feel uncomfortable between now and midnight when we conclude the debate on this Bill they will be allowed some leeway with regard to the need to wear jackets. I am very tempted to put my jacket back on and to take my tie off but I am concerned that this would lead to the time we have left being reduced. Given that Deputy Gregory can go around without a tie I do not know the reason the Gregory alternative cannot be offered to other Members.
The Chair appreciates that Deputy Shatter, like the Chair, is enduring mental and physical discomfort. As I said in regard to the protestations made some time ago I assumed the Committee on Procedure and Privileges had dealt with this matter. I wish to indicate that it should be dealt with at the next meeting. Irrespective of the cost, this House requires the best available and it is no excuse to say that the money is not available to create an environment here which is amenable to the pursuit of the obligations and responsibilities that are upon us. On the other hand, Deputy Shatter will appreciate that as I sit here I have to carry the rules as they are before me. These are stated and traditional. I should say to Deputy Shatter that he can from now on allow me to reverse positions and I will act as his advocate in the hope that we can get a satisfactory result both for him and the rest of the House.
I thank you for your courtesy in the matter. May I make one request? In the light of the difficulties we have experienced in the House today, perhaps you would ask the Ceann Comhairle to convene a special meeting of the Committee on Procedure and Privileges this week to convey our concerns again to the Department of Finance.
Finally, I want to say that nothing I am saying should be taken in any way as criticism of the staff of this House, who some hours ago very kindly supplied me with my own personal fan during the course of our deliberations and which resulted in some colleagues complaining that their papers were being blown round the Chamber. However, we must solve the problem.
We come to amendment No. 28 in the name of the Minister. Amendments Nos. 29 and 30 are related. Therefore, by agreement may we take amendments Nos. 28, 29 and 30 together for discussion purposes? Agreed.
I move amendment No. 28:
In page 11, lines 5 to 8, to delete all words from and including "the" in line 5, down to and including "conducted." in line 8 and substitute the following:
"the interests of justice require that any questions to be put to the witness be put through an intermediary, direct that any such questions be so put.
(2) Questions put to a witness through an intermediary under this section shall be either in the words used by the questioner or so as to convey to the witness in a way which is appropriate to his age and mental condition the meaning of the questions being asked.".
In relation to the experience we have just had and since Deputy Shatter is a sometime novelist himself, he may be familiar with one of George Orwell's less well known but, in my opinion, better novels entitled Coming Up for Air, which adequately describes the process we have just gone through. Lest my silence be misconstrued, I want to add my voice to that of the other Members who have spoken about these difficulties. The conditions in this Chamber, particularly when one has been here for quite some time, are quite unbearable. I thank the Leas-Cheann Comhairle for the efforts and representations he has made in this regard which I hope will bear fruit.
This amendment is designed to clarify the role of an intermediary in response to several amendments tabled on this point on Committee Stage. I have taken particularly on board Deputy McCartan's comments on Committee Stage that the wording of the explanatory memorandum was clearer than that of the actual text of the Bill.
First of all, this amendment makes it clear that it is only the questions being put in the course of the examination of the witness that will be put through the intermediary. The replies of the witness, as well as the questions put by the intermediary, of course, will be heard in the courtroom. The amendment also makes it clear that the intermediary can either repeat the actual words of the question or can use words which convey to the witness the meaning of the questions being asked in a way that is appropriate to his or her age and mental condition. If it happens that the intermediary does not convey the meaning of a question properly, the questioner can ask her — it will normally be a female — to rephrase it. The questioner's dialogue with the intermediary will be on audio link so that a young witness will not be aware of it. Indeed, in cases where an intermediary is used, the witness will not see or hear anything of what is going on in the courtroom.
There was some concern expressed on Committee Stage about the possibility that an intermediary might prompt a witness, say, by gesturing, or might otherwise influence the answer to be given. Of course, such conduct would be highly improper. But the possibility of its happening, and of its happening not being detected, is remote. The intermediary is appointed by the trial judge. She — as I have said, in most cases, it will be a female — must be a responsible person who in the opinion of the judge is competent to perform that function. Before she brings the child to the witness room it is to be assumed that she will be properly instructed by the judge as to what is her function, what she should or should not do. No doubt as time progresses intermediaries gain more and more experience, the need for such detailed instruction may diminish. In addition, the judge will have the facility of seeing continuously the whole of the witness room on the separate monitor.
I believe that this amendment will clarify the role of the intermediary and I hope it will be acceptable to the House.
The Committee Stage concerns I had about the provision I have repeated on Report Stage. When replying I should be glad if the Minister would deal with one or two worries I have. I accept that he is making a valid effort to meet some of the concerns expressed on Committee Stage. The question of the definition of the role of the intermediary is clarified in the Minister's amendment; yet the amendment and the section are silent on whether the intermediary has any function in relating back a witness's reply to the court. It is essential that the testimony of a witness be given by the witness alone — in other words, at all stages the replies must be conveyed to the judge or jury by the witness and nobody else.
I know the section will stipulate that any question be put to the witness through the intermediary and so on. The section will talk only of the putting of questions through the intermediary. But the fact that the person is to be described as an intermediary can be a two-way process. I want to ask the Minister of State why he did not see fit to make a specific pronouncement that the function of the intermediary is a one-way process only, namely, to convey in intelligible form to the witness the question being asked, stating specifically that the intermediary's role would be to that extent only — in other words, that at no stage would the intermediary have any function in relating back, or re-interpreting, what a witness seeks to say.
I do not support amendment No. 30 in Deputy Shatter's name. I prefer the sense of what the Minister seeks to do. His idea is to use professional people, trained to help a witness understand perhaps technical or legalistic questions difficult for the witness to comprehend. The whole basis of the idea incorporated in this section, which I fully support, involves a translation in many instances, if not all, of the language of the courtroom into the language of the person being asked the question. The idea is a mechanism to facilitate the delivery of good testimony, to account and relate to the court the experiences of a witness in a particular set of vulnerable circumstances. On this amendment I am departing from Deputy Shatter's view. I will be happy to support the Minister's amendment as an advance on mine, although I am concerned about the absence of a specific proposition in the Minister's amendment curtailing and ensuring that the intermediary has no function in relating back the replies of the witness.
I want to place on the record, as I have done previously, that I have grave reservations about the use of this so-called intermediary. I can foresee an intermediary fulfilling a certain function. Indeed, the Law Reform Commission sought to deal with this matter.
First, one wants to ensure that the victim of a serious assault, physical or sexual, is provided a degree of protection. One wants also to ensure that any other witness, particularly a young witness, is provided a degree of protection in the context of the manner in which courts work, in the context of coming into contact with an alleged perpetrator of a serious offence. However, the balance has to be maintained. If we begin with the principle that somebody is innocent until proved guilty, one essential way of determining guilt or innocence, or indeed the truth of an account of an event, is the use of the technique of cross-examination by the lawyers representing an accused person. The manner in which one cross-examines somebody may vary, depending on the age of the person, their experiences and the nature of the offence. Indeed, when barristers seek to cross-examine young people at present judges can exercise some degree of restraint on the manner in which an issue is pursued.
I want to raise with the Minister how he envisages cross-examination working in circumstances in which there is an intermediary. Let us assume there has been an allegation of a serious sexual assault, or indeed a rape, of some person. Let us assume a defendant or an accused person is saying there was no rape, that there was consensual sexual intercourse. Let us now assume that the court appoints an intermediary. It is the function of the court to get at the truth. It is the function of the lawyer representing an accused person, who is adamant about his innocence, to try to ascertain whether the witness giving evidence, who is the alleged victim of a sexual assault or rape, is actually telling the truth. Cross-examination has a very important function in that. The putting of questions, upon getting a response the immediate putting of the next question, the manner in which the questions are phrased, may indeed be crucial in helping to elicit the turth of an incident. If an intermediary is going to communicate the questions in a more consumer-friendly language than not simply in that used by the lawyer cross-examining, there is a great danger that the truth may not be reached. Often a witness in the witness box under pressure tells the truth which, in the absence of pressure, is not up to that moment being told. The difficulty is to find a balance. I am seriously concerned that in introducing the intermediary we may certainly be providing a further protection for a victim of a very appalling offence, but we may also be opening the door to convictions being sustained when allegations are falsely made and innocent people go to jail.
I would raise some reservations about the constitutional validity of the provision relating to the function of the intermediary. The use of the intermediary could at some future date be interpreted as not allowing due process of law in the trial of someone on a criminal charge, on the basis that an accused is presumed innocent and not presumed guilty. The functioning of the intermediary may block the proper hearing and processing of a criminal trial. I want to caution the Minister about this. The Ministers amendment is a well-intended provision to meet some of the problems, objections and difficulties we have discussed, but there is a fundamental problem here that we may be ignoring. On the basis that I do not have a majority for my views on this — though I think I have a public duty to put those views on the record of this House — I tabled an amendment which does not seek to remove the section in relation to the intermediary or get rid of the role of the intermediary but which seeks at least to delimit the manner in which an intermediary can operate. I am proposing in amendment No. 30 a provision which is certainly at variance with the Minister's approach and that of Deputy McCartan. The amendment reads:
"(2) An intermediary shall ask the witness any questions asked by the judge, barrister or solicitor concerned in the examination of the witness and shall not deviate from the phraseology of the question asked nor interpose any comment on such question nor on the reply given.".
The latter part of that provision addresses some of the difficulties Deputy McCartan has regarding the Minister's amendment being silent about the intermediary intervening other than simply to repeat questions. My amendment could at least amend the section to allow it to retain some degree of constitutional propriety and allow for a coherent cross-examination to take place.
Due process of law requires that the lawyers representing a defendant can in their own manner consider how to establish the defendant's innocence by determining the order of questions to be asked in a cross-examination and the manner in which the questions should be put. This provision deviates from that in that it certainly interferes with the manner in which questions are put. There is a problem with this section. My amendment would at least amend that problem which will remain and, indeed, in a sense be copperfastened by the Minister's provision which allows the words used by the lawyer conducting a cross-examination to be phrased in a different way that the intermediary regards as appropriate to the particular witness. An intermediary may judge that it is appropriate to a particular witness and he may wrongly make the judgement that a question should be rephrased. The rephrasing of the question may undermine the cross-examination being conducted by the lawyer for the accused. If the intermediary judgement is wrong in this, it raises a serious issue. When is the intermediary to make a judgment that a question should be phrased or rephrased? I do not know the answer to that, I can see substantial cases of trials within trials developing on this issue.
The Minister means well in this provision but I am concerned about some of its implications. I am sure he is not going to take my amendment on board or accept what I am saying. I hope I am proved wrong. I would be happy to be proved wrong in this instance, but I fear greatly that we may come back to this in amending legislation within a relatively short period after this Bill becomes operative and after a small number of cases have been dealt with in this way with an intermediary. If a trial at first instance operates this section and if a conviction is obtained that perhaps should be properly obtained because an accused is truly guilty of an offfence. I am concerned that due to the technical and, possibly, constitutional problems that could arise with this section, a conviction could ultimately be set aside that should be sustained because an accused was involved in the events that were prosecuted. I will say no more on that, but I have concerns and reservations about the whole role of the intermediary. I believe those concerns and reservations are exacerbated somewhat by aspects of the Minister's amendment while another aspect he is trying to address refers to some of the problems that were envisaged on both Second and Committee Stages.
I understand Deputy Shatter's attempt to take a middle line on the issue of the intermediary, but I have doubts whether that is warranted. The basis of the role of the intermediary is that the evidence that can be given by this witness is not in the normal way sufficiently clear or coherent. If the questions are to be simply a repeat by the intermediary of the identical wording posed by the solicitor or barrister in the courtroom, what exactly is the need for the intermediary? I am concerned about the whole concept. I sympathise with the Minister's intent to a very large measure and I respect fully his bona fides in the matter, but at the end of the day we are talking about criminal charges, serious offences, not trifling things. We are talking about a very serious position arising for the accused in the case.
In order to justify conviction for any offence, particularly a serious offence, two things are required: first, coherent evidence and, second, reliable evidence. In the absence of those two tests there should not be a conviction for a serious criminal charge. This begs the question: if a witness in a case is not capable of giving evidence in a sufficiently reliable and coherent manner will he or she be capable of giving that evidence through an intermediary? It may be regrettable if a person whom the State believes has committed an offence goes free. That happens from time to time by reason of a witness not being available, there being no witness, or whatever. One can be drawn too far down the road of trying to set up coherent, acceptable and reliable evidence when the reality is that, regrettably, it may not be there and may not be warranted.
One can visualise a situation where a relationship or rapport of a type may develop between the intermediary and the witness. Rephrasing of the questioning may take place which would tend by the way it is put — for example the tone, the intonation, a look, the raising of an eyelid or a suggestion — to draw an answer which might perhaps not otherwise be obtainable or would not be forthcoming spontaneously from the witness. This is a real danger. If this danger exists we ought to exercise very great caution before we go along with that proposition.
The suggestion of the introduction of the intermediary concept is to some extent debasing and taking away from what is or should be the role of the judge at a trial. The judge should have a responsibility to look after a witness in this category. If necessary, he could be given authority by way of legislation to ensure that questions are phrased carefully and simply and are easily understood by the witness both on examination and cross-examination, and to exercise control and constraint on solicitors and counsel involved in the examination and cross-examination of the witness. I believe judges have that role even now and I am sure they exercise it where young witnesses are concerned and where problems of one kind or another arise in regard to the witness. To remove that responsibility and control of a trial from a judge raises a question mark as to whether judges can be relied upon to exercise that degree of supervision in their own court. I think that is an unfair suggestion. I believe that by and large judges can be relied upon to exercise that control and to adopt a sympathetic and understanding approach to a witness who may have mental or physical difficulties.
The nub of the matter is whether evidence can safely and beyond a reasonable doubt be relied on if the only way it is obtainable for the court is through an intermediary. I must say I have grave doubts as to whether that is the position. This is an issue which requires very considerable consideration.
We kicked this issue around quite a bit on the last occasion we discussed it. Many of us expressed grave doubts at that stage about the operability of the system and whether it would be sustainable. Obviously, many questions still remain to be answered about this issue. The Minister responded to the concerns expressed by us in so far as he amended section 13 to try to improve the application of the system to some degree. Deputy Shatter's amendment No. 30 meets the concerns expressed by Members on the previous occasion and again this evening. We would do well to give this issue as much consideration as possible.
We dealt with this issue in great detail on the last occasion because of the adversarial nature of our system of justice and the great importance attached to cross-examination and trying to establish the truth. We also referred to the difficulty an intervention of this kind could create for the defence. One has to appreciate that the prosecution, defence and judge will have had a lot of practice in phrasing and asking questions of people of varying degrees of intelligence and understanding in all sorts of situations. Given that they know this type of situation could arise, one would assume that the prosecution, defence and judge would be intelligent and practised enough in the art of questioning to adopt a certain frame of mind and do a satisfactory job. One could imagine a situation where they would have to make three or four attempts to get across the intention of their original question. It would be much more satisfactory if they did this repeatedly rather than give a person the latitude to intervene and use a different form of wording. No matter how practised or great their understanding of children of varying ages is, intermediaries might find it difficult to use wording which gives the meaning of the question put by the questioner. This is a difficult area with which to deal.
On the last occasion we discussed the issue the Minister of State became impatient; it was patently obvious that he thought we had discussed the issue ad nauseam. There is grave concern about this provision because of the nature of our justice system. If necessary, we will have to spend further time considering the possibility of cases not proceeding in certain circumstances where this system is used. Other questions also arise, for example, how does the judge decide when he will use this procedure? Would he get reports from outside, from specialists and so on, that in the circumstances, as the person is under 17 years, the television link should be used? As a lay person, I have not satisfied myself that we have thought the matter through fully, although I know that other people hold a different view.
I am in complete sympathy with Deputy Shatter and what he is trying to achieve in amendment No. 30. I have satisfied myself that while in many cases it would be very important that an intermediary accompany a child when this procedure is in place, there are other ways that might be more satisfactory than allowing the intermediary to act as prosecutor, judge or defence. One would have to say that intermediaries could not act in that way but they would have certain powers to change questions into a format which could lead to grave difficulty in a case. I have much sympathy with amendment No. 30. It should be given careful attention before making a decision on the matter.
In response to the points made by Deputy McCartan, I am quite convinced from my reading of the section, as amended, that replies must be conveyed by the witness alone. The section states that the examination is to be conducted through the intermediary. As I recall, on Committee Stage Deputy McCartan made the point that in the context of a school examination the term, "examination" implies answers as well as questions. I have done some research into this matter in the interim and I stick to my original opinion that in the context of courts the term "examination" implies putting questions only. As that is the proper interpretation the intermediary would be merely a conduit through which the questions are put. We are all familiar with the terminology "cross-examination was conducted by counsel", "counsel examined the witness" and "the solicitor examined the witness". The term "examination" when used in that context means that the barrister, counsel or solicitor put questions.
In this case the intermediary would be working both ways.
The section provides that the examination of the witness will be conducted through an intermediary. It states: "the interests of justice require that his examination-in-chief, cross-examination or re-examination, or any part thereof, be conducted through an intermediary". We are talking about cases where child witnesses give evidence by television link. As I have already explained, the system — Deputies McCartan and Shatter will have had the opportunity of examining the system personally — the judge will be in control of the case from start to finish and will see and hear everything that is going on.
We know that questions are asked from time to time about some of our judges but it would be quite ludicrous that a judge would accept a situation where counsel puts questions to a child witness through an intermediary and the intermediary repeats or re-phrases the question and gives the answer himself, or adds or takes from the answer. If there was an eccentric judge who accepted that situation it would be grounds for an appeal. Considering that the judge will be in control of the entire case I cannot see how that could happen in practice.
Deputy Shatter said that he is unhappy about the whole concept of the intermediary. To a certain extent I take the point he makes but we must remember that the use of an intermediary is not automatic. While Deputy Shatter was speaking I was reading through the section which states that the court may, on the application of the prosecutor or the accused, in the interests of justice, require that the examination be conducted through an intermediary. In the preceding line there are guidelines as to the circumstances to which the court should have regard in deciding whether the interests of justice require the use of an intermediary, for example, the age or mental condition of the witness. While the section states that those who may be examined through an intermediary must be under 17 years, I would envisage that in practically all cases, taking into account that the criteria are the age and mental condition, we would be talking about children of the age of five or six years who can give an intelligible account of events, but may be unable to do so if they have to face questioning by strange people on a monitor, even without wigs and gowns.
Will the intermediary not also be a strange person?
No, the child witness will meet the intermediary before going to the witness room and there will be advance communication between them. The function of the intermediary is twofold, to sit with the child witness and put him at ease and, second, to put the questions in a more intelligible manner than they would be put by counsel.
Could the judge not see to that?
I will deal with the question of the judge. In relation to the direct point made by Deputy Shatter about cross-examination, if counsel wishes to put a certain question to a child witness who is being examined through an intermediary and the intermediary re-phrases the question in a way that he or she feels would be more intelligible to the child but counsel is not happy with that, counsel can direct the intermediary — who will be in audio contact with him — to re-phrase the question. He may ask the intermediary to put the question as he asked it. The judge will be in control of proceedings from start to finish.
Deputy Taylor made a point about usurping the judge's role. As I understand the legislation — I am open to correction on this—there will be nothing to stop the judge from putting a question to the child witness through the intermediary. The role of the judge, by and large, is to control proceedings and to ensure that the conduct of the trial is fair to both sides. The judge will have a special monitor and will see and hear everything that goes on in the witness room. He will be in control of the case from start to finish.
I fully appreciate Deputy Shatter's point that we must maintain a certain balance. Young witnesses may be able to give an intelligible account of events, but only through the mechanism we are proposing. If we withdraw the intermediary it is the view of a number of professionals in the area who have advised us and also of the Law Reform Commission, that some child sex abusers will not be prosecuted because the witnesses are too young to take direct cross-examination. In answer to Deputy Taylor's point, they feel that the witness could give an intelligible account of events if put at ease in this way. We have taken advice on the constitutional aspect of this matter and we have been advised by the Attorney General's office, who are not omnipotent in these matters, that there are constitutional difficulties with the provision. The Law Reform Commission Report on Child Sexual Abuse in paragraph 7.22 says:
7.22 Contrary to what some may have thought, we had not suggested doing away with cross-examination. We originally contemplated no more than a modification of existing practice: the questions a defending counsel or solicitor would have asked would now be asked in another voice. As a result, timing and intonation, which is so much part of the skilled cross-examiner's art, would be lost. This, however, is the price one would have to pay to ensure, in cases where the accused was representing himself, that the child witness was not placed at so serious a disadvantage as to create the possibility of real justice.
Our final proposal went further than this. We contemplated the questioning of the child by skilled child examiners, appointed by the court, during the prosecution and, if possible, the investigation of these offences, not merely where the accused was representing himself or herself, but also where he or she was defended by lawyers. We envisaged that the examiner would act as a conduit for all questions from the lawyers and that his or her role would be to establish and maintain rapport and ease of communication with the child witness while remaining detached from the issues in the case.
7.23 We were influenced by two factors in making this more radical proposal. First, under our adversarial legal system, it is the duty of a defending lawyer to use every legitimate means to secure the acquittal of his client. While he must not mislead the court of trial in any way, it is not his duty to ensure that the enquiry in which he is participating arrives at the truth. Hence, he is perfectly entitled to conduct a cross-examination which is designed to unsettle a child witness alleged to have been the victim of an offence by his client and reduce his or her credibility as a witness to the lowest possible level. Secondly, in an imperfect world, there will always be defending advocates who will seek to harass or bully a child witness in a way which is not only psychologically harmful to the child but may also be damaging to their own client's case. 7.24 This has led us inexorably to the conclusion, not disturbed by our consultations, that too high a price is being paid for the right to conduct a wholly uninhibited and "direct" cross-examination of a child witness. While we have naturally had regard to the constitutional dimensions of such a proposal, we are satisfied that the guarantees of a trial "in due course of law" do not necessarily preclude a restriction of some nature on an accused person's general right to cross-examine his accuser without an intermediary. The right in practice is inevitably restricted: thus, persons who cannot speak English, who are non-speaking or have a speech defect are allowed at present to give evidence through interpreters. We have also noted that, since we made our provisional recommendations, a majority of those subscribing to the Pigot report recommended that the trial judge should have a discretion at all times to appoint an examiner where a witness was very young or very disturbed.
That is the view of the Law Reform Commission and it is a pretty radical departure, to some extent moving into the unknown. I have confidence in the good sense of the courts. The proposal will work and people will be grateful to us for putting this provision into the legislation because it will result in some child abusers — the most despicable form of criminal — who would presently walk free, being prosecuted.
Amendment agreed to.
Amendment No. 29 not moved.
I move amendment No. 30:
In page 11, between lines 8 and 9, to insert the following:
"(2) An intermediary shall ask the witness any question asked by the judge, barrister or solicitor concerned in the examination of the witness and shall not deviate from the phraseology of the question asked nor interpose any comment on such question nor on the reply given.".
Amendment put and declared lost.
Recommittal is necessary in respect of amendment No. 31. Amendments Nos. 31, 32 and 33 form a composite proposal, I propose therefore that for discussion purposes we take amendments Nos. 31, 32 and 33 together. Agreed? Agreed.
I move: "That the Bill be recommitted in respect of amendment No. 31."
Question put and agreed to.
I move amendment No. 31:
In page 11, to delete lines 19 and 20 and substitute the following:
"(d) it is proposed, pursuant to section 15 (1) (b), that a video-recording of a statement made by that person during an interview as mentioned in that provision shall be given in evidence at the trial,".
Amendments Nos. 31, 32 and 33 make specific provision for an edited version of an out-of-court interview with an alleged child victim to be used at the trial, with the consent of the accused. It is normal for the prosecution when preparing the book for the preliminary examination to edit, when necessary, statements of prosecution witnesses by eliminating irrelevant material. A video-recording of an interview with a child who is alleged to be the victim of physical or sexual abuse can also contain a lot of irrelevant material, which would not be admissible at the trial.
Amendment No. 33 therefore ensures that an edited version of the interview can be used at the preliminary examination, with the consent of the accused, and also that that version can be used at the trial. Amendments No. 31 and 32 make it clear that the accused will have an opportunity of seeing the whole of the interview before the preliminary examination.
I commend the amendments to the House.
I presume that not only would the accused have the right to see the whole of the interview, but would have a right to see and approve the edited version before it was submitted at either District Court level or any other court level in the context of trial?
My understanding is that the accused must agree to having an edited version go forward. What a person agrees to he must obviously have seen.
If the accused is not happy with the edited version, under this amendment can the Minister assure the House that the accused will be able to say that if the court are going to use the video recording it will have to be the full video recording and not the edited version?
Yes.
Amendment agreed to.
Amendment reported.
I move amendment No. 32:
In page 11, line 25, after "video-recording", to insert "of the interview".
Amendment agreed to.
I move amendment No. 33:
In page 11, between lines 32 and 33, to insert the following:
"(3) If the accused consents, an edited version of the videorecording of an interview mentioned in section 15 (1) (b) may, with the leave of the court, be shown at the preliminary examination and, in that event, subsection (2) and the said section 15 (1) (b) shall apply in relation to that version as it applies to the original video-recording.".
Amendment agreed to.
Amendment No. 34. Amendment No. 1 to amendment No. 34 and amendment No. 39 are related. I propose therefore to take amendments Nos. 34 and amendment No. 1 to amendment No. 34 and No. 39 together.
I move amendment No. 34:
In page 12, lines 27 to 29, to delete all words from and including "during" in line 27, down to and including "purpose" in line 29, and substitute the following:
"during an interview with a member of the Garda Síochána or any other person who is in the opinion of the court competent for the purpose".
I am moving this amendment after consideration of the comments made on Committee Stage about these out-of-court interviews with alleged victims of child abuse. Deputy Shatter suggested that a distinction be drawn between interviews with a woman Garda, say when an offence was being reported, and the interview at an assessment unit when the possibility of abuse was being investigated. The amendment reflects this distinction.
There was also discussion about the meaning to be given to the expression "appropriately qualified" used in the present text in relation to those participating in the interview. That is the expression used by the Law Reform Commission in its recommendation and the commission gave examples of what it understood by it — a psychiatrist, psychologist, social worker, woman Garda and so on. No doubt the intention was that this matter would be left to the court to determine in any particular case.
There are objections to this, not least of which is the possibility, perhaps the likelihood, of differing interpretations by different judges. Another is that "qualified" suggests that some formal qualification is necessary for anyone participating in the interview and, although normally one or more of the participants would be qualified in this sense, I would not wish that otherwise admissible evidence would be ruled out because of the presence at an interview of a person who had no third level qualifications.
I appreciate the concern of Deputy Shatter, as expressed in the amendment he has retabled, that evidence of an interview should not be admissible unless it is conducted by a qualified psychiatrist or psychologist who has received special training in the techniques required for interviewing alleged victims of physical or sexual assaults.
I have thought about the matter since and am convinced that it would be undesirable to try to spell out in precise detail in the Bill the qualifications and specialised training that interviewers should have, how an interview should be conducted, what the video-recording should show, what supplementary evidence should be given at the trial about the making of the video-recording and so on. I agree that a code of practice for the guidance of interviewers should be provided on the lines of that recommended by the Pigot Committee and referred to here on Committee Stage. I shall consult the Minister for Health on this with a view to having such a code made available to the health board personnel concerned and the Garda.
But, the bottom line is whether the statements of the video-recording are fairly admissible. At the end of the day it is the court, having seen the video, which must make up its mind on this point and, if necessary, exclude the whole or part of it if it considers that to admit it would not be in the interests of justice. It is important to bear in mind that before a videorecording of this kind can be considered for admissibility the court must have evidence to satisfy it that the person conducting the interview is competent for that particular purpose. That involves matters such as formal qualifications, training, experience, familiarity with the code of practice and so on. It is only when this hurdle has been surmounted that the court proceeds to consider whether the evidence can be admitted, and that will be determined having regard to the need to ensure fairness to the accused. Admission of these video-recordings is a big step forward so far as the law of evidence is concerned but it is required by the need to protect young victims of abuse and to bring their abusers to justice. It will call for an extra effort by courts to ensure that no injustice is done, but I have no doubt that they will reject any video-recording of an interview or any part of it that does not comply with accepted standards of fairness.
To come back to the amendment, what I propose is to drop the expression "appropriately qualified" altogether and refer instead to an interview with a person — or persons, for the singular imports the plural — who is in the opinion of the court competent for that purpose. I think that word conveys better what we want to achieve, that is, that statements made by an alleged victim of child abuse during a video-recorded interview can be used in evidence at the trial of the accused, provided, of course, — and it is so provided — that the accused has an opportunity of cross-examining the child on that evidence.
I will now comment briefly on amendment No. 34 in the name of Deputy Shatter. Having considered his amendment I am prepared to accept it — I do not know what procedural technicalities have to be followed — without referring on this occasion to the Parliamentary Draftsman.
I thank the Minister for meeting some of the objections I raised on this section. I appreciate that the Minister has taken on board my amendment, which in effect seeks to amend his amendment. I understand why the Minister may not want to be quite as restrictive in determining who is competent for the purpose as I propose in amendment No. 39.
I am conscious that we have only 30 minutes and that we want to discuss other amendments. However, I am very concerned that some people who are not competent to conduct interviews to determine whether an allegation of child sexual abuse can be substantiated and who may use different methods to conduct these type of interviews could be able to conduct video-recording of interviews which may be brought before the court.
The practice on the ground in the special teams appointed to deal with child sexual abuse is that the person engaging in interviewing young children to determine whether they have been sexually abused is always a qualified child psychologist or child psychiatrist. Interviewing is not normally left to a social worker. I have reservations about social workers, especially those without specialised training, conducting interviews. I am concerned that if it is left to the courts to determine on a case by case basis who is competent to conduct these interviews, some judges may take a different view as to the qualifications and training necessary to determine competence in this area and on their determination may hinge the admissibility of evidence and whether somebody will or will not be convicted. It is preferable that we establish judicial guidelines as to who is competent to conduct such interviews.
I appreciate that the Minister believes my amendment No. 39, which confines this task to a psychologist or a psychiatrist who specialses in dealing with children and who has received special training in the interview techniques required, is too restrictive; but I believe this is what will probably happen in reality. Nevertheless, I do not wish to press the matter further as the Minister has come at least 70 per cent of the way in meeting the difficulties I raised. I welcome the Minister's commitment this evening to provide a code of practice in this area. To put that in place will obviously require discussion between the Minister and his colleague, the Minister for Health. I request that the code of practice be made a formal rule of court under this Bill. I do not know whether this is possible as the Bill is currently framed, but I do not think it would simply be covered by an administrative function. It should be a rule of practice that the judges will look to, to determine whether competent interviews have been undertaken and the correct techniques applied. I ask the Minister to ensure that the rules of practice be laid before the Houses of the Oireachtas so that there can be public knowledge, that both Members and the general public have access to them and that they formally be made rules of the court for the purpose of this legislation.
I appreciate the fact that the Minister has taken on board some of my concerns.
I move amendment No. 1, to amendment No. 34:
In the second last line of the amendment to delete "in the opinion of the court".
Amendment agreed to.
Amendment No. 34, as amended, agreed to.
Amendment No. 36 is related to amendment No. 38 and we will discuss amendments Nos. 35 and 38 together. Is that agreed? Agreed.
I move amendment No. 35.
In page 12, between lines 39 and 40, to insert the following:
"(iii) the person who conducted the interview which was video-recorded is available at the trial for cross-examination, or
(iv) no leading questions were asked by the interviewer during the course of such interview.".
There are various rules laid down in relation to the video-recording of evidence. Section 15 provides that in the case of a video-recording mentioned in paragraph (b) either—
(i) it has been considered in accordance with section 14 (2) by the judge of the District Court conducting the preliminary examination of the offence, or
(ii) the person whose statement was videorecorded is available at the trial for cross-examination.
These are preconditions to the video-recording being used as evidence. I propose two further matters. One is that not only should the child or young person who features in the video and is the alleged victim of an offence be available to the court for cross-examination, but that the person who conducted the interview should be available to the court. In the context of determining a person's competence to conduct interviews it should not just be a question of the court getting a document detailing their academic qualifications. Competence to conduct such interviews should not be based simply on academic qualifications, but on practical experience. It would seem to me therefore that this would require the person to be present in court.
Secondly, I am seeking to ensure that no leading questions should be asked by the interviewer during the course of such interviews. I tabled an amendment on Committee Stage which the Minister was to consider and I did not press it. I do not wish to detain the House by repeating what I said on Committee Stage, but I wish to draw the attention of the House to the considerable concern I expressed about the use of leading questions in the context of what are known as validation interviews in cases of child sexual abuse.
I am concerned that leading questions posed by an adult could result in the child giving a version of events that is untrue because the child is being pressurised by the adult putting the questions or, alternatively, the child might simply agree to the propositions being put by the interviewer in order to please the interviewer, or may possibly agree to the propositions without fully understanding in adult language what they mean. Serious reservations have been expressed in the courts, not just in the United Kingdom but elsewhere, on the use of leading questions in the type of interviews envisaged here. It is most important that leading questions are not put by authority figures when dealing with alleged cases of sexual abuse of children in determining whether allegations of sexual abuse are correct.
Amendment No. 35 is a very important proposition. I supported it on Committee Stage and I do so now. Anybody involved in a video recording which may be adduced as evidence and who plays a role in it by way of interview or participation in any way, should be available for cross-examination or questioning at any trial. That is a basic proposition. Some things might happen which would be apparent on the video recording but which would require testing as to gesture or posture taken. Debate might hang upon what was meant by a phrase used by a person playing a role in the interview. It is eminently desirable, if not essential, that anybody involved in the video recording should be available for cross-examination or questioning at a subsequent trial.
I am not as supportive of amendment No. 38 but I know that Deputy Shatter has well-founded reservations about the use of so called anatomical dolls which are over-suggestive in their shape and form. People have become more careful about the way they are employed and about the conclusions which might be reached.
I am anxious that the Minister should accept amendment No. 35.
Deputy McCartan said it was desirable, if not essential, that the interviewer should be available to the court. I agree that it is desirable but whether it is essential is the nub of the matter. Amendments Nos. 35 and 38 were the subject of an extensive discussion on Committee Stage and I have since considered the views expressed by the Deputies who participated in that debate.
As regards the additional conditions proposed in the amendments in relation to the admissibility of video recorded interviews, I remain of the view that it should be a matter for the court to determine whether a particular interview, or some portion of it, should be admitted in evidence and to take into account all the circumstances relating to that interview.
Of course, before the court can proceed to look at a video recording it must satisfy itself that the person who conducted it was competent to do so. Obviously the court will not consider a video recording conducted by the hall porter and it must satisfy itself that the person who conducted the interview was competent to do so. In many cases the court might not have any personal knowledge of the person conducting the interview and there are obvious things which the court would have to do to satisfy itself that the person was competent.
There are issues beyond competency that might arise.
One obvious way for the court to satisfy itself as regards competence would be to examine the interviewer as to qualifications, training and so on. If the interviewer is not available because he is absent, or even dead, the court might call people who could testify as to the competence of that person and his qualifications and experience. That should be sufficient.
The court will no doubt also require evidence on whether any other person was present at the interview and on any other relevant matters and will seek that evidence either from the interviewer or, where provision is made for the interview to be observed, from the person who observed it.
If the court is satisfied on these points, it will examine the video recording and take account of any submissions that all or some of it should be excluded as being unfair to the accused. These submissions may well be on the lines of the amendments we are now considering, that is, that leading questions were asked by the interviewer or that anatomical dolls were improperly used as an aid, but there may be objections on other grounds.
The court is obliged to examine the video recording carefully and consider any objections because of the specific obligation imposed on it by subsection (2) of section 15, that is, the obligation not to admit in evidence any part of such a video recording if it is of opinion that in the interests of justice it ought not to be admitted. In amendment No. 37, I am making it clear that in this connection the court must have particular regard to any risk of unfairness to the accused.
Deputies McCartan and Shatter will know that the court of criminal appeal will consider the transcript of a trial. Video recordings will also be available to the court and they will be able to look at the case afresh to decide whether the judge should have excluded or admitted any part. That is an extra safeguard. For these reasons it is not necessary to write in specific conditions governing the admisibility of statements made in video recorded interviews.
I understand the Minister's views but nevertheless I feel that these amendments are necessary to provide a degree of protection and to lay down how matters should be dealt with. I did not refer to amendment No. 38 which deals with anatomical dolls. I dealt with that at great length on Committee Stage and I will not repeat my remarks.
The Minister is saying that if there are problems in the context of leading statements or in the absence from the court of the person who put the questions on video or if there are problems with anatomical dolls, all that is left to the court to decide in the context of fairness. The Minister's amendment No. 37 is of assistance in this area and I appreciate that it comes some of the way. Nevertheless, I draw the attention of the House to the fact that we are entering new territory in the context of ensuring that convictions are not obtained against innocent people. I do not think the constraints I am seeking to impose in relation to the production of video recordings are remarkable. In the circumstances it is my intention to press the amendment.
Amendment put and declared lost.
Amendment No. 36 is in the name of the Minister. Amendments Nos. 36 and 37 form a composite proposal and it is proposed that they be taken together. Agreed.
I move amendment No. 36:
In page 12, lines 41 and 42, to delete ", having regard to all the circumstances,".
Amendment agreed to.
I move amendment No. 37:
In page 12, between lines 43 and 44, to insert the following:
"(b) In considering whether in the interests of justice such as video-recording or any part thereof ought not to be admitted in evidence, the court shall have regard to all the circumstances, including any risk that its admission will result in unfairness to the accused or, if there is more than one, to any of them.".
Amendment agreed to.
I move amendment No. 38:
In page 13, line 3, after "otherwise" to insert "and save in exceptional circumstances regard shall not be had to any videorecording of an interview in which anatomical dolls were used as an aid by the interviewer.
Amendment put and declared lost.
Amendment No. 39 not moved.
I move amendment No. 40:
In page 13, lines 7 and 8, to delete "sections 12 to 15 or section 28 are not in operation" and substitute "any of the provisions of section 12 to 15 of section 28 is not in operation".
Amendment agreed to.
We come now to amendment No. 41 in the name of the Minister. Amendment No. 42 is related and amendment No. 44 is consequential on amendment No. 41. It is proposed, therefore, to take amendments Nos. 41, 42 and 44 le chéile. Is that agree? Agreed.
I move amendment No. 41:
In page 13, to delete lines 20 to 34 and substitute the following:
"17. Where—
(a) a person is accused of an offence to which this Part applies, and
(b) evidence is given by a person (in this section referred to as `the witness') through a live television link pursuant to section 12 (1),
then—
(i) in case evidence is given that the accused was known to the witness before the date on which the offence is alleged to have been committed, the witness shall not be required to identify the accused at the trial of the offence, unless the court in the interests of justice directs otherwise, and
(ii) in any other case, evidence by a person other than the witness that the witness identified the accused at an identification parade as being the offender shall be admissible as evidence that the accused was so indentified.".
This amendment is a revised version of section 17 and endeavours to take into account the comments made on Committee Stage not only on the original text of the section, but also on the section substituted for it on that Stage.
The revised section makes provision, as did the earlier versions, for avoiding as far as possible the need for witnesses who have been allowed to give evidence by TV link to appear in court to confront the accused. The fact that they have been allowed to give evidence in this way suggests that they would be likely to be traumatised by any in-court identification. We are dealing here with sexual offences and offences involving violence. At the same time it is essential that there should be no bar on an accused insisting on such an identification where identification is an issue.
To achieve these aims the section first deals with a situation where evidence is given that the accused was known to the witness before the date on which the offence is alleged to have been committed. There are two categories of "known": there are the people with whom the person is familiar and there are other categories of persons who would be known in a vague sense. The accused could be the father, uncle, regular baby-sitter, neighbour or family friend. In that case the witness will not be required to identify the accused in court unless the court in the interests of justice directs otherwise.
At this point I would like to say that I have considered carefully whether, as suggested on Committee Stage, it would be desirable to expand the term "known" to "known by name" or "known personally" and I have had the suggestions considered by the draftsman. I do not think that such an addition would be useful in the context of what we are trying to achieve. The examples I have given — father and so on — cause no problem and there will be general agreement that a formal in-court identification should not be necessary in such a case. If, however, it is contended at the trial that the accused was not known to the witness beforehand, or a doubt is raised in the matter, the revised section provides that the court may in the interests of justice direct otherwise, that is, direct that the witness identify the accused in court. In view of the importance which courts have attached over the years to the dangers of identification evidence and the constitutional obligation to observe fairness of procedures, it is to be expected that such a direction would be given whenever justified.
I wish to turn to the second leg of the revised section. This deals with cases where the accused was not known to the witness before the date of the alleged offence. It does not relieve such a witness from having to identify the accused in open court. However, it does provide that evidence by a person other than the witness that the witness identified the accused at an identification parade as being the offender will be admissible as evidence that the accused was so identified. That evidence would normally be excluded by the rule against hearsay and that is being changed.
I would expect that the effect of this provision will be that in many, perhaps in most cases, it will not be necessary to require the witness to identify the accused again in court but the provision does not rule out in-court identifications in these cases.
Deputies will notice that, unlike earlier versions, the revised section refers only to identifications at an identification parade and not to identifications during some other identification procedure. I have dropped the reference to the latter procedure in deference to the views expressed on Committee Stage.
I commend the amendment to the House.
Amendment agreed to.
Amendment No. 42 in the name of Deputy Shatter has already been discussed. Is the amendment being pressed?
I am not sure whether the Minister has responded to amendment No. 42. The Minister said in effect that there is not a problem with matters contained in amendment No. 42?
I am happy with amendment No. 41, that the new section 17 will deal with the issue raised in amendment No. 42.
Amendment No. 42 not moved.
I move amendment No. 43:
In page 13, line 35, to delete "12 (1)" and substitute "12 (1) (a)".
Amendment agreed to.
I move amendment No. 44:
In page 13, lines 35 and 36, to delete ", 15 (1) (a) and 17 (1) (b)" and substitute "and 15 (1) (a)".
Amendment agreed to.
We come now to amendment No. 45 in the name of the Minister. Amendments Nos. 47 and 48 are consequential. I propose, therefore, that we discuss amendments Nos. 45, 47 and 48 le céile.
I move amendment No. 45:
In page 14, to delete lines 8 and 9 and substitute the following:
" `former spouse' includes a person who, in respect of his marriage to an accused—
(a) has been granted a decree of judicial separation, or
(b) has entered into a separation agreement;
`separation agreement' means an agreement in writing which provides for the spouses concerned living separately and apart from each other.".
This amendment expands the definition of "former spouse" to include persons who are informally separated under a separation agreement as well as those already included in the definition, that is those who are judicially separated.
It gives effect to the substance of an amendment tabled by Deputy Shatter on Committee Stage. We resolved the procedural problems which moving this amendment created by the resolution I proposed at the start of the debate.
Amendment agreed to.
I move amendment No. 46:
In page 14, to delete lines 15 to 42, and in page 15, to delete lines 1 and 2 and substitute the following:
"21.—In any criminal proceedings the spouse or former spouse of an accused person shall, subject to section 24, be compellable to give evidence at the instance of the prosecution.".
This is the point we got to on Committee Stage. I am interested in debating my next amendment so I will withdraw this one.
Amendment, by leave, withdrawn.
I move amendment No. 47:
In page 14, line 34, after "separation" to insert "or separation agreement".
Amendment agreed to.
I move amendment No. 48:
In page 15, line 16, after "separation" to insert "or separation agreement".
Amendment agreed to.
Amendment No. 49 not moved.
I move amendment No. 50:
In page 15, between lines 31 and 32, to insert the following:
"26.—(1) Evidence where required in any preliminary hearing of remand or examination (for the purposes of the Criminal Procedure Act, 1967), of arrest, charge, caution, or bail of any accused shall be permissible in court by the production of a certificate of evidence of the Garda or Gardaí responsible or concerned.
(2) Such evidence shall be tendered to the court by an officer, not below the rank of Sergeant, attached to the station of the Garda preferring the charge in the proceedings.
(3) where any issue is controversial, the court shall require the Garda or Gardaí concerned to attend at a reasonable opportunity to be examined as to their evidence as certified or otherwise.".
I am glad to move this amendment. It is one I passively believe in as being of some practical benefit to the manner in which criminal cases are prosecuted, particularly in the district courts. I referred to this matter earlier. Garda officers are required when they arrest and take a person to a police station, or release him on bail, to attend at court the next day for the purposes of giving that formal evidence of arrest, charge and caution. The Dublin Metropolitan District Court is packed with Garda officers waiting for hours, many bleary-eyed after being on duty all night for a simple remand to be called and dealt with and to give their evidence of arrest, charge and caution. On occasions this can deny a Garda station of a huge complement of their active working police persons. That type of evidence can and should be dealt with by way of certificate, completed by the Garda officer, handed to the station sergeant for presentation to the court on the next occasion or by an officer of the station designated to do that. I hope the Minister takes the point of the amendment. If he cannot act on it today, at least let us move in the direction of doing something useful, using the ideas contained in the amendment.
Deputy McCartan said he passionately believed in this amendment. I have news for him: I passionately believe in it too because it makes perfectly good sense. Deputy McCartan will be more than surprised to hear that the Department of Justice passionately believe in it also because if we could get this on the Statute Book it would involve a substantial financial saving to the Department of Justice for reasons which are obvious. We have to get clearance from the Attorney General's office. So far we have not got it but we are engaged in discussions with that office. If I have to, I propose to approach the Attorney General to discuss the matter with him. I hope by the time this matter is debated in the Seanad I will be in a position to table an amendment to this effect. I thank Deputy McCartan for his proposal and for drawing this matter to our attention.
I welcome the Minister's comments. That is good work.
I support this good amendment. The intent is right and I was pleased to hear what the Minister had to say.
Is the amendment withdrawn?
I will withdraw my amendment in view of what the Minister promised.
Amendment, by leave, withdrawn.
We are coming to midnight now and I am tempted to say it is a suitable hour for passion but as we cannot conclude I advise the Minister to move amendment No. 51. Amendments Nos. 52 and 53 are alternatives.
I move amendment No. 51:
In page 15, lines 35 and 36, to delete "he has observed" and substitute "are relevant to those proceedings".
I thank the Minister for bringing forward his amendment which reflects the amendment we also tabled on Committee Stage.
Amendment agreed to.
Amendments Nos. 52 and 53 not moved.
We have come to the amendment we all wish to reach, amendment No. 54, in the name of Deputy Shatter.
I move amendment No. 54:
In page 15, line 40, to delete "on conviction".
The words "on conviction" put in an unnecessary qualification and that is why I propose their deletion.
It is standard formula in such legislation.
Question: "That Report Stage is hereby completed and the Bill do now pass", put and agreed to.
I should like to express my appreciation, as I did at the conclusion of Committee Stage, of the attentive way in which the Minister of State listened to the views expressed from this side of the House and responded to them. For the first time in a long period, if ever, I felt that I had played a relevant role on Committee Stage.
I am also pleased that the House has now completed the passage of a very important Bill. I appreciate the Taoiseach's agreement today to extend the time for the debate to midnight. That time was truly needed and as a result of the extension we have been able to go through the entire Bill and debate the various amendments made. The Bill is now a much better one than that presented originally. The Minister has been most constructive in his response to issues raised by Opposition Members.
I wish to be associated with the comments made by my colleagues.