Amendments Nos. 1 and 2 are in the name of Deputy Dooley who is not present.
Road Traffic Bill 2011 [Seanad]: Report and Final Stages
Would it be possible for me to speak in favour of Deputy Dooley's amendments?
I move amendment No. 1:
In page 4, line 32, after "person." to insert the following:
"The member shall, as soon thereafter as may be practicable, require the provision of a sample of blood or urine at a place where medical care is provided to the person.".
I welcome the Minister and I commend Deputy Dooley for tabling the two amendments in question. The first, that a member of the Garda Síochána shall, as soon as possible thereafter, require the provision of a sample of blood or urine at a place where medical care is provided to the person while amendment No. 2, would require the provision of a sample of blood or urine at a place where medical care is provided to the person. This reverts to the discussion on Committee Stage regarding two areas of the Bill which some people think are lacunae in the provisions.
The first concerns drivers who are unconscious and the question of what are the appropriate steps for a member of the Garda Síochána to take at the scene of the collision. The Minister gave a commitment on Committee Stage to seek advice on the case of a driver involved in a collision who is in a serious medical condition or is unconscious. The Minister said that in his experience as a medical doctor he believed that unconscious patients are tested in any case so it would be possible to provide the requisite evidence of the state of the driver at the time of the collision. The Minister gave a commitment on Committee Stage that he would be prepared to act in the next road traffic Bill which he said is being prepared and which will deal with the training of young drivers. As regards badly injured or unconscious drivers, the concern is that a person may be feigning injury and may not be as seriously injured as is presented in the first example.
The two amendments seek to clarify what kind of follow-up strategy would be in place to deal with a collision resulting in a fatality or serious injury. I seek clarification on whether the Minister has also given a commitment that if for medical reasons a driver involved in a serious collision could not be tested at the scene that there would be a legal basis for ensuring that this issue is followed up either at a Garda station or in a hospital. I ask the Minister to confirm that he is prepared to address those issues in the next road traffic Bill and perhaps give the House a guarantee.
Sinn Féin colleagues referred to the issue of drug driving, an issue I pursued when I was my party's spokesperson on transport. I refer to the striking example of the Australian states, Victoria, Queensland and New South Wales, who seem to have a valid legal road side drug testing equipment and I ask the Minister to comment. I ask if the evidential testing machines will be ready for September.
I note from recent media reports, for example, a valuable report in yesterday's Irish Independent, that the Go Safe camera programme has resulted in 26,000 drivers being apprehended for speeding. Before the system was installed, only 9,500 drivers had been apprehended. The offence of speeding incurs a serious fine of two penalty points. I ask for the Minister’s view on the appalling attacks on three of the camera vans. Many people would regard these attacks as being acts of attempted murder, in that staff who are contracted to work for the State were attacked by miscreants who are bitterly opposed to the monitoring of speed in areas where there have been serious accidents. These people are prepared to attempt to murder a servant of the people. Will the Minister and the Minister for Justice and Equality, Deputy Shatter, take vigorous action to apprehend the culprits?
In this year to date, 61 citizens have been killed in horrific crashes. One year ago, the total was 55 persons so this year is turning out to be a worse year. The graph could start rising again, as it did in 2003 for three or four years before the present Road Safety Authority and the Minister's predecessor and the Labour Party mounted a strong campaign to address this problem.
I commend the two amendments and I ask the Minister to give a commitment to the House that on the passage of this Bill he will address these matters and also the appalling attacks on the camera vans.
I may be mistaken and I am new to this work but last week the Committee Stage turned into a Second Stage and I do not want this Report Stage to turn into a Second Stage.
I understand that an amendment on Report Stage must be moved by the Member in question.
The amendment was moved by another Deputy and that is permitted.
This is a short but important Bill. Each of its sections will enhance the provisions of the Road Traffic Act 2010 and send an important message to the public from this House that drink driving and drug driving will not be tolerated. Section 2 of the Bill allows for the mandatory testing of drivers following a collision. I read earlier in the week that since last November, 50,000 drivers have been detected speeding and issued with fines and penalty points. The number of people being killed or seriously injured on our roads is increasing. The incidence of drink driving is decreasing and I hope this Bill will help to eradicate it entirely.
The Government needs to invest in driver education to address the issue of motorists driving while tired. It should not be forgotten that driver fatigue is a big issue. We have built many new motorways across long distances but we have failed to provide for garages or other areas where people can stop to have a cup of coffee. Obviously, that will be addressed in the future. Driver fatigue is a very big issue. I have experienced it on numerous occasions, as I am sure most Deputies have.
Deputy Dooley has proposed his amendments because he is concerned that the discretion it is proposed to give to gardaí under the amended sections 12(6) and 12(7) of the 1994 Act would mean that the compulsory power currently given to gardaí with regard to blood testing would become a discretionary power. The Bill as it stands proposes to provide for discretion in the testing of breath in circumstances in which it "would be prejudicial to the health of the person". While I understand this concern, I am not convinced of the value of these amendments. It is unlikely and rare that a person would be in a situation in which he or she could not have his or her breath tested because it would be "prejudicial to the health" of that person, whereas it would be fine for him or her to have his or her blood tested instead. Gardaí are being awarded the discretionary power to do this. I do not believe it would be practical to go any further. It should be taken into account that medical advice will also be available.
Tá Sinn Féin i bhfábhar an Bhille seo. Le cúnamh Dé, beidh ár mbóithre níos sábháilte mar thoradh ar an reachtaíocht seo.
I will comment on the amendments at this stage. I can address the other issues during my Final Stage contribution. I thank Deputy Dooley for the amendments he has proposed. I understand his concerns but I am satisfied that the provisions in the Bill, as drafted, are sufficiently balanced to ensure gardaí have the requisite powers they need to enforce mandatory testing.
If a garda forms the opinion that, on health grounds, a person cannot provide a preliminary breath test specimen, the main consideration is that the health of the person may not be jeopardised. In circumstances such as acute asthma attacks, cardiac arrest, panic attacks, major haemorrhage, fainting, major facial or head injuries or loss of consciousness, clearly it would not be possible for a person to comply with the breath test requirement. A person may have a head injury and be concussed, may be hyperventilating because of a panic attack or may be exsanguinating due to an injury in his or her leg. Although those conditions might not be life-threatening, it would be "prejudicial to the health of the person" to attempt to require him or her to do a breath test in such circumstances.
The position in this regard has been clarified for me by the Office of the Attorney General, which has advised that in certain circumstances, it is not appropriate for a member of the Garda Síochána to insist on a preliminary breath test, particularly where doing so would pose a risk to the health of the person. The Act must provide for such a safeguard in order to protect the individual and the garda concerned. As section 12 does not envisage a medical practitioner being available at the scene of every accident, or most accidents, the decision must be taken by the garda. The wording "prejudicial to the health" has its ordinary meaning and is to be assessed by the garda having regard to all circumstances presented to him or her.
Where the driver has been injured in the collision and brought to hospital, the mandatory testing provisions in the hospital are provided for in section 14 and are applicable. If a garda forms the opinion that testing would be prejudicial to a person's health, or that the person is shamming or feigning injury, the person can be arrested and a blood sample or urine specimen obtained in a Garda station. Such specimens are obtained by, or in the presence of, a designated doctor who will also be in a position to provide medical care to the person if required. To compel a person to go to a place, as suggested in these amendments, would deprive that person of his or her freedom. Accordingly, he or she would have to be arrested in the first instance. Therefore, the amendments are defective as they would require the arrest of such a person, in effect. As the House will be aware, there are few examples of such a provision. There may be one or two examples. Even in the case of murder, there is no requirement that somebody be arrested.
These amendments use the term "as soon thereafter as may be practicable". I am advised that this term has no real legal meaning. The amendment also requires "the provision of a sample of blood or urine" but it does not specify how and to whom the sample should be given. It also refers to "a place". If the place is somewhere other than a hospital or a Garda station, it must be specified. The amendment also uses the term "where medical care is provided" but does not specify who the person providing the medical care must be. This genuine attempt to close a perceived lacuna would create four further gaps in the legislation. This is often the case with amendments. Road traffic legislation is highly litigious and often challenged in the courts. There is a risk that by trying to close a perceived gap, the Deputy is providing for the possibility of creating four new gaps and causing cases to be struck out of court.
I understand the concern that a small number of unscrupulous gardaí might use this provision to allow people to evade having their breath tested. Unfortunately, I have not found a means of legislating against a garda being unscrupulous or not obeying his duty. I do not believe there is a means of doing so. That applies across the board. It is not possible to legislate against somebody not doing his or her job properly or being unscrupulous. It might be possible to make it an offence for a garda not to do his or her duty. I am prepared to consider that in the context of the second road traffic Bill. It could be difficult.
In my discussions with the Garda, it has been confirmed that a number of options are open to members of the force when a preliminary breath test is not administered at the roadside. For example, the driver may be arrested and the test carried out at a Garda station. When I met an assistant Garda Commissioner, I raised our concerns about this matter and we agreed to monitor the situation regularly.
The timed information issue relates only to court cases and coroner's cases. It is possible in a shorter timeframe to get the time as to whether people are tested or not. If anyone has any evidence that this new legislation is not being enforced and that we do not have genuine mandatory breath testing — it may not be happening due to circumstances in which it would be genuinely "prejudicial to the health" of the person involved — I want to know about it. When this Bill has been enacted, I want to be presented with details of any cases in which it is not being enforced by the Garda. For the reasons I have outlined, I ask Deputy Dooley to withdraw the amendments he has proposed.
I appreciate the extensive reply the Minister has provided, but we continue to have concerns. I accept his argument that there is nothing he can do about unscrupulous gardaí. Our amendment does not attempt to deal with such cases, however. It has been tabled to assist the Garda Síochána in its efforts to deal with unscrupulous citizens. It was made clear during the most recent discussion on this legislation in the House that some people try to feign or fake certain conditions in a way that makes it difficult for gardaí to deal with them as they wish. The amendments we have proposed will ensure the onus is taken from the individual garda.
Ultimately, we want to ensure every individual is required to provide a sample of blood or urine, regardless of his or her medical condition. An exception can be made, as provided for in the legislation, if the person is in hospital. We clearly recognise the complications associated with those who are hyperventilating and pose a considerable risk to gardaí in determining that they have to provide a sample. That onus should be taken from gardaí. The legislation caters for cases in which the person has gone to hospital in the first instance. We are keen to prevent an individual who has not been transported to hospital from seeking to evade detection by faking an event in a way that prevents the Garda from intervening. The amendment would place a requirement on the officer in question to take a sample wherever appropriate medical assistance is provided, whether at the roadside, in the driver's home or car or elsewhere. The purpose of the amendment is to ensure a potential lacuna does not emerge. It is not intended to complicate the considerable volume of law pertaining to drink driving cases or create further problems for the courts in attempting to secure convictions.
As my party indicated during the previous debate on the Bill, given the criminal sanctions associated with being convicted of drink driving, individuals will try every possible avenue, sometimes at considerable legal cost, to test the law. On that basis, the Bill leaves a significant gap which will allow individuals to evade justice. That this loophole has been highlighted and identified guarantees that individuals will seek to exploit it.
While I fully understand the Minister's resolve to implement the main provisions of the Bill relating to mandatory breath testing, it would be remiss, in light of the considerable period the legislation has been in gestation, to implement it without first ensuring all possibilities are addressed. I ask the Minister to consider accepting the amendment. Perhaps it could be refined and an amended version introduced in the Upper House. A new Seanad will be elected within the next fortnight.
While I do not wish to delay enactment of the Bill, given that it has been in gestation for a long period, a further three or four weeks' delay would not have any major impact. I am concerned, however, that enacting a Bill which has a serious deficiency would have a greater impact than delaying its implementation by a few week. If it proceeds, the courts will have to address the deficiency and the House would need time to amend the legislation. I ask the Minister to consider accepting the amendments.
While I appreciate the Deputy's intent and share his objectives, faced with the circumstances he outlines a Garda will have three options. First, if the driver cannot take a breath test because a garda forms the opinion that it would be prejudicial to the person's health to do so, the garda may wait for a period for the person to calm down before administering the breath test. Second, if the driver is seriously distressed, the garda can call an ambulance and the person will be brought to hospital where a blood or urine test can be taken under existing legislation. Third, if the garda suspects that the person is pretending to be distressed or is shamming, he or she can be arrested and brought to a Garda station where a blood or urine sample can be taken. The legislation covers all the circumstances outlined by the Deputy.
If I interpret Deputy Dooley's contribution correctly, he may be hinting that circumstances may arise in which a garda, for nefarious reasons, would choose not to arrest a person, bring a person to hospital or wait until such time as it becomes possible to carry out a breath test. The only circumstance in which the legislation could not be enforced is where a garda acts nefariously. One cannot legislate against such circumstances.
The Bill strengthens current legislation and should be viewed in the context of the body of legislation in place in this area. If it is not enacted this week and we delay enactment for a few weeks in the hope of finding a solution — I do not believe such a solution is possible — mandatory breath testing will not be in place in the coming weeks and people who should be tested will not be tested. This is a much worse scenario than that outlined by Deputy Dooley.
As the Deputy will be aware, bank holiday weekends are the worst periods for road traffic accidents. With the Easter and May bank holidays approaching, I want mandatory breath testing enforced immediately and do not want the legislation delayed for another few weeks or months as we seek to legislate for circumstances in which a garda does not do his or her duty. I am not aware of any legislation which successfully provides for circumstances in which someone does not do his or her duty. In the case of legislation covering the behaviour of politicians, for example, while one can introduce provisions on what donations should or should not be taken and how they should be registered, a nefarious or corrupt politician will simply ignore the law. If the lacuna the Deputy cited arises, it will not be closed by legislation. We need to ensure that were such a case to arise, the Garda authorities will be informed and will take action against any garda who is not doing his or her duty.
Perhaps I did not clarify the matter sufficiently. I am not concerned about a garda acting in a nefarious manner because one cannot legislate for such a circumstance. I am trying to remove the requirement on a member of the Garda Síochána to make a medical judgment. When an event takes place at a roadside a garda is left with the three options outlined by the Minister, namely, to call an ambulance in the event that someone requires hospitalisation, arrest the person if he or she believes the driver is faking illness or deal with the matter as prescribed by taking a breath test. The difficulty arises when a citizen decides to fake hyperventilation or another medical condition. In such circumstances, a garda must make a judgment as to whether to arrest the individual in question. If it transpires that the individual is not faking illness, what will be the consequences for the garda? This places a burden of responsibility on a garda.
As regards the option of calling an ambulance, it is open to anyone to refuse to be taken to hospital by ambulance. It is beyond the capacity of a garda or, for that matter, a doctor to dictate that a driver must be taken to hospital. As a doctor, the Minister will know more about this issue than I do. A garda may decide to allow a driver time to overcome the problem he or she is experiencing, resulting in a protracted period being spent on the roadside as the driver tries to stall or prevent a breath test being carried out. If the driver also refuses to go to hospital, the garda concerned is left in a difficult position. The only intervention available to him or her is to arrest the person concerned, which is a difficult decision to make when the person appears to be in an extremely distressed state. I expect this problem will give rise to stand-offs at roadsides because gardaí will be reluctant to arrest a person on the basis of the impact of such a course of action should it later transpire that the driver's behaviour was genuine.
If, on the other hand, drivers knew they must ultimately give a sample of blood or urine, the incentive to delay would be removed. The amendments are necessary for this reason, rather than as a means of addressing circumstances in which a garda acts in a nefarious manner, to use the Minister's term. I hope that clarifies my position.
While I understand the Deputy's point, in the scenario he has outlined the garda concerned should arrest the driver. Essentially, the Deputy wants to introduce in law a requirement that a garda arrest someone. Such a provision would be unprecedented as gardaí are always allowed to exercise some degree of judgment in deciding whether to arrest someone, even in the case of murder. In the scenario outlined, we must allow gardaí to exercise some degree of judgment. It is not practical to expect them to have medical knowledge, so they must make some judgment as to whether the person is unable to participate in a breath test because it would be prejudicial to their health, whether they need to call an ambulance and, if the person refuses to take the ambulance, then to make an arrest as necessary. We must trust the gardaí to use their judgment appropriately and not require them to arrest people, which would be unprecedented. In our discussions with gardaí, this is certainly not something they asked for. If they had, I might consider it in another way but they did not ask the Government to tie their hands and require them to arrest people in these circumstances. I do not see the benefit of that imposition unless the Garda thought it was appropriate.
How stands the amendment?
I am prepared to withdraw the amendments on the basis that the Minister will give further consideration to the argument when he is bringing through the next Bill, the No. 2 Bill to which he referred on the last occasion, and that, in consultation with the Garda, he is prepared, as he indicated, to review the impact of the legislation and examine the different cases if they are brought to his attention. It would be open to him to introduce a provision in the next Bill to address any potential lacuna. While we believe we have identified a problem, I am sure others may emerge in the course of the enactment and operation of the law. If he makes a commitment in the House that he is prepared to carry out that review of the impact of the Bill and use the benefit of the hindsight that will then be available, in consultation with the Garda, we are prepared to withdraw the amendments.
I am happy to give that commitment. If the Bill is enacted within the next couple of weeks, which can be done if we pass it today, we will be able to assess whether there are any problems before September or October, when the (No. 2) Bill is brought forward. The legislation will have been in operation for the best part of six months so we will know how it is working and whether there are any problems in practice. I am prepared to consider any wording for the (No. 2) Bill that might close any gaps we find have arisen during that six-month period of operation.
Amendment, by leave, withdrawn.
Amendment No. 2 not moved.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."
I thank the House for its co-operation in passing the Bill. Notwithstanding any concerns people may have, I am certain the Bill further strengthens existing road traffic legislation and will make our roads a safer place. I look forward to the President signing the Bill into law and having it in action in time for the two bank holidays or, if not, certainly for the summer period when we can assess how it works and see to what extent mandatory testing improves our statistics.
With regard to the issue of drug testing, we are examining what is done in Australia to find whether it is practical to do it here. We do not want to introduce a measure here that does not yet work in Australia so we want to make sure it works before we introduce——
They do not have our legal system.
That is correct. Any measure we bring in has to work in our legal system. Gardaí are being trained in the use of the evidential test for drug use, which involves neurological testing, walking a line, touching a finger to the nose, Romberg testing and so on, which will be admissible in court and can be carried out at the scene of an accident.
With regard to the blood alcohol limit, the machines are ordered and gardaí are currently in training with Professor Cusack in UCD and will be trained up by September or October. I am keen to introduce the necessary measures to reduce the blood alcohol limit allowed and to have a major campaign around that period to advise people that the noose is tightening on anyone who thinks it is appropriate to drink and drive.
I am ad idem with Deputy Broughan on the question of the GoSafe vans. What has happened is appalling. I am glad nobody has been harmed but, from what I understand, that was not far from happening on one occasion. I have had discussions with the assistant commissioner and the Minister for Justice and Law Reform in this regard. An issue that greatly concerns me, which I heard from the Garda, is that a St. Patrick’s day parade in a certain part of the country contained a float which more or less mocked the idea of one of these vans being burned out. It shocks me that people would even think this is an appropriate response.
As Members will be aware, the GoSafe vans are contracted in such a way that the company does not make any extra money no matter how many drivers are stopped. While some people perceive they are there to catch people speeding and, therefore, to collect revenue, that is not the case. The company does not benefit from catching extra people. The vans are located in areas where there have been accidents and their locations are listed on the Garda website, so there is no case for anyone taking a dim view of them. I am horrified at what has occurred, which was not anticipated. I assure the House that the Minister for Justice and Law Reform and I will press the Garda to do all it can to bring the people who have carried out these acts to justice. I suspect those who have done this are not concerned about two or four penalty points; they are much more sinister elements which are generally opposed to the idea of there being any Garda surveillance on the roads.
With regard to the number of road deaths, Deputy Broughan stated that there had been 61 to date this year, which brings us six ahead of the same period last year, which is of genuine concern. However, as with economic statistics, I would not read too much into monthly or quarterly statistics. If we were to take the monthly statistics, five people have died so far this month on our roads, which is a tragedy but is also the lowest ever number for a similar period. If, as we hope, there are no deaths on our roads over the Easter bank holiday, the figure would be well under the 19 who died on the roads last April. The objective is to keep reducing the number of road deaths every year and to bring in whatever legislation and enforcement measures are necessary to ensure that is the case.
I thank the House and the Opposition spokespersons for their assistance in allowing us to introduce this legislation, which strengthens the current arrangements and brings in mandatory breath testing. I look forward to seeing it in operation in the coming months with a view to introducing the No. 2 Bill later in the year and strengthening the corpus of law even further.
Question put and agreed to.
A message will be sent to the Seanad acquainting it accordingly.