Will it be possible for me to speak after the Minister has spoken or are you concluding the debate now?
Criminal Justice (Forensic Evidence) Bill, 1989: Second Stage (Resumed).
Question again proposed: "That the Bill be now read a Second Time."
Do you want to be called to speak before I call the Minister?
Yes, if that is possible.
Senator Norris, it took you a long time to stand up and indicate to me you would like to speak.
You asked him to resume his seat when he stood up, a Chathaoirligh.
Senator O'Toole, sit down. Because of the confusion today I do not know what has happened. Do you all think something is happening or that there is something on and you are confused?
We know what has not happened. We have not had a debate, we have not had a Committee on Procedure and Privileges meeting, we have not done the business of the day. That is what we have not done, whatever about what we have done.
Senator Norris.
I would like to speak on this Bill because I think it is a very important Bill. Anything that increases the capacity of the Garda to secure convictions in a situation of increasing criminality especially in our cities is something that must be considered very seriously indeed and certain aspects of this legislation are to be welcomed, although there are clear causes for hesitation with regard to it. The Minister has addressed some of these in his opening remarks.
In particular those provisions of the Constitution which provide for the right to privacy and to bodily integrity are clearly transgressed by this legislation in intent, if not in actual fact, because whereas I am glad to see that no attempt will be made by the Garda to possess themselves of these samples by force, at the same time, as Senator Robb clearly pointed out, a moral force exists because the right to silence is to a certain extent being withdrawn. I think it is important to underline this point precisely because this is an area in which our Government have expressed concern with regard to the withdrawal of similar privileges in another jurisdiction across the water in the United Kingdom. It is an area where we have to tread extremely carefully.
Of course, the whole question of DNA is a sophisticated scientific problem. It has been elaborated on with considerable expertise by my colleague, Senator Bulbulia, as well as the Minister and I am not going to go into it in any great detail. It is clear it offers a refinement upon finger-printing techniques and allows for a more exact identification of subject and, in addition, it is also clear that this method will be far more efficient because whereas finger prints erase fairly rapidly from most surfaces with time and are easily blurred, sometimes impossible to remove, this does not hold true to the same extent with regard to DNA samples. One has to welcome any increase in the capacity for achieving convictions of crime or rather one would have to if one was assured that the state of law in this country was all that it ought to be but as Senator Robb has said in his speech, which has anticipated a number of my own ideas, this is not the case.
It is particularly worrying that we should be speaking on this matter today in a Chamber which has signally refused to discuss a highly important matter, which is directly relevant to this Bill because although I would maintain that these procedures will make the detection of crime and the conviction of criminals far more likely that raises importantly the question of the suitability of those laws. Is it appropriate to have more accurate, more reliable, more rapid methods of securing conviction when many people in this country are concerned about the continuing existence of the death penalty? Senator Robb spoke at some length and to some point on this and quoted the sections of the law that exist. We may, by passing this Bill, be facilitating a situation in which persons may, by use of this evidence, be convicted on charges that could lead to the death penalty.
I have to point out that it is, of course, possible to substitute or to plant these elements, just as it is possible to plant other forms of evidence. It could quite easily be the case that this kind of organic material could be planted at the scene of the crime. One has only got to remember the case of Timothy Evans which was detailed in a book by Ludovic Kennedy called 10 Rillington Place where an unfortunate man was, in fact, convicted almost certainly in the wrong and was executed.
It may be that people are beginning to imagine that I am wandering from the point but I am not because this raises further concerns about the detailed provisions of the Bill, in particular section 2 (8) regarding consent. I notice that the provisions of this legislation state that "in this Act appropriate consent means (a) in the case of a person who has attained the age of 17 years, the consent of that person (b) in the case of a person who has not attained the age of 17 years but has attained the age of 14 years the consent of that person and of a parent or guardian of that person and (c) in the case of a person who has not attained the age of 14 years the consent of a parent or guardian of that person." That addresses the question of consent but it does not really address sufficiently fully the notion of consent because it uses as a rule of thumb simply the notion of age.
As I am sure the Minister will be aware, there are other considerations to be brought into operation here in order to ensure that valid consent has been given. It is not simply a question of calendar years, it can be a question of mental capacity or emotional capacity to give consent and that simply is not covered at all in this legislation, although similar matters are covered in analogous pieces of legislation where consent is deemed to be necessary. It seems to me that it is a defect of the Bill that the question of the giving of consent by somebody of intellectual or emotional immaturity, even though they may be 14, 17, 21 or 37, is not covered. We have a special responsibility to be sensitive to the rights of the most vulnerable sections of the community.
I have mentioned my concern about expediting the criminal process because of the existence of the death penalty. I think this is a perfectly legitimate concern. I think it is also fair to say that in the sort of area of criminal proceedings where one is dealing with sexual assault cases with the extraction of DNA from saliva and semen and so on and in the light of the fact that we have passed legislation during this term on sexual assault, during the process of which the Minister signally failed to take on board amendments that would knock out the 1861 and 1885 Acts which govern sexual relations between persons of the same sex, and in the context of the fact that the Government have totally failed to pay the slightest attention to the ruling in the European Court at Strasbourg and in the light of the fact that the 1861 and 1885 Acts still continue to operate despite this clear signal from Europe, and precisely this kind of forensic evidence would be used in a——
Senator Norris, the Minister could not take those amendments on board. They were ruled out of order.
Far be it from me to challenge such a ruling but I am very much inclined to have hesitation about its validity, shall I say, and I think it is very unfortunate that the opportunity to secure a remedy, which unquestionably would have met the requirements of the European Court of Human Rights without any great fuss, was not taken on board by the Government.
Senator Norris, if you would deal with today's business it would be easier for you and for me as well.
I am sure you will agree with me that legislation, particularly in the criminal area, is a very complex matter and that a whole series of issues are seen to be interrelated over a period of time. If there is not a consistent approach by Government to the moral issues involved and instead of this there is a kind of a hotchpotch of legislation produced from time to time to meet immediate circumstances, then it is important that Members of the House draw the attention of the Minister to those inter-relations, and they are perfectly clear. I am saying I am worried because we have such a defective legal code retained in operation, a lot of it going back to the time when this was a colony of the British Empire, some of it going back even beyond that. We have not addressed ourselves to the point of reforming it so we have some totally idiotic laws on the Statute Book. Yet, what we are doing is we are making more efficient the methodology of securing conviction without addressing ourselves to the fundamental philosophy of justice underlying our laws. I simply put on the record of the House my conviction that there are a number of areas such as capital punishment, such as the 1861 and 1885 Acts where there is clear concern on the part of the public and I believe that we should address ourselves, as a matter of moral obligation, to these important issues, if not in advance of passing this legislation, at least in tandem with it. Whereas it is important that we have an efficient method of processing criminals through the courts system and securing just convictions, in order for those convictions to be just the law itself must be just. It must not be perceived to be an ass in the words of Charles Dickens, and it must not be the kind of legislation that clearly brings us into contempt throughout Europe.
The Minister to conclude.
Ba mhaith liom——
I understood that if the Minister concludes I may not speak. Is that correct?
That is right. The Senator had not indicated he wanted to speak.
No, but I am now. I wish to make a contribution.
Could you reassure me that there is a quorum in the House once more because I understand, and you will be in a position to confirm this, that there was not a quorum at the Committee on Procedure and Privileges where the important matter that I sought on many occasions to raise either in the House or in the Committee——
Senator Norris, resume your seat. I will talk to you in my office at 5.30 p.m. about matters that have happened outside this Chamber.
On a point of order, the Minister was on his feet before either of the two Senators indicated they wanted to speak. If they wanted to make a contribution they should have been in earlier to make a contribution rather than calling for a quorum.
May I ask for you guidance on this matter? This has been one of the worst days that I have seen in the Seanad.
Hear, hear.
I have been longer in this House than some of the Senators who are interrupting. I do not understand why a Senator calls for a quorum and then walks out the door to make sure that we have not a quorum immediately. thereafter. It is a hypocritical performance.
Under the rules——
It is consistent with the destructive approach of some of the Independent Members of this House. It is unacceptable and it has reached a climax of nonsense today. It is totally unacceptable to anybody.
Senator McGowan, resume your seat. When a quorum is called for the bell has to ring and I have to obey the rules. I have no control over Members who come in and leave the Chamber.
It is very unreasonable for Senators to call quorums consistently throughout the day because it is known to everybody that a number of meetings are taking place that Senators have to attend. I have missed a meeting myself because of the fact that Senator Norris has been calling for quorums and I felt obliged to be here for my hour's tour of duty. It is very unreasonable to call quorums when meetings like this are taking place.
It is very unreasonable——
It is all right for Senator Norris who is sitting on the doorstep of Leinster House.
Senator Norris, if you continue to behave in this way I will have to ask you to leave the House. As regards calling Senator Norris and Senator Murphy, in the past two years there has never been a problem about calling Senators to speak. The names were listed here and there was never a problem. I called the Minister twice and had to ask him to sit down again. Senator Norris did not indicate he wanted to speak until the Minister was standing. The same thing has happened with Senator Murphy. I request that for the remainder of the evening we get on with the legislation. Everybody is getting upset and I do not think people are behaving in the way they want to behave. I apologise, Minister.
On a point of order, what the Cathaoirleach has just said is quite unreasonable. I am putting it clearly on the record. You have just said that what was the procedure and the tradition for two years was in some sense not being carried on. You then seemed to imply— and I have listened to the statements from the other side of the House — that something happened on this side of the House in order to create that situation.
Resume your seat. Senator O'Toole, I ask you to withdraw your remarks. As Cathaoirleach or as Leas-Chathaoirleach I have never behaved in a biased manner in this Chamber. I would never, whether I lose or gain votes, side with anybody in this Chamber. I ask the Senator to withdraw that remark immediately.
Will you explain to me why the Leader of the House——
I will explain to nobody. I do not take sides in this House. I have been most fair as Cathaoirleach and as Leas-Chathaoirleach. I am asking Senator O'Toole to withdraw the remark that I have acted in a biased manner in this Chamber against any Senator.
It was not against any Senator, it was against a group.
Withdraw the remark that I was biased against anybody because I was not. It is most unfair and untrue. Withdraw that remark, Senator O'Toole.
Do I have to withdraw the remark?
Yes.
If you are ruling that I have to withdraw it then I withdraw it and I do so reluctantly.
My contribution to this debate is going to be very brief. It is entirely my fault that I did not realise that Second Stage debate was actually over. I apologise to the Minister, through the Chair, for causing any confusion.
Whatever reservations we may have about Committee Stage of this Bill on Second Stage I can do no more that give it my wholehearted support. I find it hard to understand the concern of some Senators about the possible injustices that may be done under this Bill. No sooner was the Bill published than there was an alarmist chorus of alleged violations of privacy that might ensue from this Bill. It seems to me that the Bill gives adequate protections in this area and that the main reaction to it should be simply one of welcome that modern forensic science has provided us with this remarkable mechanism to detect guilt and to narrow the range of suspects. The odds against convicting the wrong person are so overwhelming that they are virtually non-existent.
Not true.
Therefore, I would have thought that people who were concerned to diminish serious crime in our society, to improve the rate of detection and to pinpoint the identity of the guilty in crimes such as rape, for example, should give the Bill a complete welcome. I dissociate myself entirely from what I regard as an excessive and perverse concern when it is most inappropriate, weighed against the overall good to society which the passage of this Bill will bring about.
I wish to speak on this Bill very briefly. I wish to welcome any measure which increases the detection of crime in a through and accurate way. One of the strongest arguments against the death penalty which the Government refused to discuss today and which I intend to discuss under the heading of this Bill——
Senator Ross, I do not think you can discuss Item No. 2 under the legislation before us.
I did not say I was discussing Item No. 2. I did not say I wished to move Item No. 2. I said I wished to discuss the death penalty under the heading of forensic evidence. It is most important. Is that all right, a Chathaoirligh?
Only in passing.
Only in passing. How long is passing, a Chathaoirligh?
I will tell you.
I wish to discuss the death penalty under this because any measure which makes more accurate the conviction for a crime which has been committed is welcome. Despite what Senator Murphy said, I know, and the House knows, that too many cases have existed, where the death penalty has been executed and where a mistake has been made. I think principally of the case of Timothy Evans. If this measure makes it less likely that the Government who are in favour of keeping on the Statute Book execution by hanging will use such a measure, then I favour it.
The greatest crime that society can commit against anybody is to take their life without any justification whatsoever. If forensic evidence or genetic evidence or the taking of samples of any sort reduces the likelihood of the Government being able to implement the measures which they refuse to discuss, I welcome it. I point out, and I especially point it out to the Government benches, that forensic evidence in the case of the Birmingham Six in the United Kingdom is the evidence which is found to be most faulty and is the evidence which is quoted so often as being the reason they were wrongly convicted. Had this Bill and these measures been in existence in England at the time, it is possible that a more accurate verdict, or a verdict which carried less subsequent doubt, might have been brought to bear.
I would remind this House of one very telling fact about that case as well. Had the death penalty been in existence in England at the time, the Birmingham Six would have been executed. This is something which is sobering for those who continue to want to impose the death penalty. I assume that this measure which is being introduced has been introduced today with that in mind and as a substitute for Item No. 2.
There has been a lot of pressure brought to bear on States throughout the world, including the Soviet Union, China, Ireland, Turkey and many others, during 1989 to take the death penalty off the statute books. This is part of an international campaign by Amnesty International. I should remind the Minister while he is here——
Please tell me what part of the Bill you are at, Senator Ross?
I have not got a copy of the Bill in front of me.
Would it not be a good idea, if your contribution is to be relevant to the Bill, that you would have it in front of you?
I am just coming around to that, if you would let me finish. If this Bill is introduced it makes it less likely for us to be pilloried in the international world as companions, in the execution of our law, of countries like South Africa, China, Turkey, the Soviet Union and the more macabre parts of the United States. This is why I think this Bill should be welcomed here this evening, because I see it as part of a general tightening up on crime where it is less likely and thought to be less necessary for these sorts of particular measures to be taken. That was the view of this House as along ago as 1981. I give the Government full marks for consistency. In 1981 the Government, who were then in Opposition, said that capital punishment should not be taken off the Statute Book because it was the wrong time.
Senator Ross, you are now certainly not on the legislation before you.
Just in passing.
How often am I going to hear about you in passing, or you are going to deal with the matter before the House?
This is a Second Stage speech and I will have quite a lot more to say on Committee Stage.
Make your contribution to the Bill now and you can deal with the other points on the next Stage.
I would like to congratulate the Minister for the concessions he made in the Bill in regard to the right to privacy, the need for consent and the right to bodily integrity. I hope it represents a turnaround on the position the Government took in 1981 on the death penalty. If it was the wrong time then and apparently, judging by questions in the other House today, it is the wrong time now, perhaps the Minister in his reply could tell us whether this Bill is just the forerunner of a Criminal Justice Bill, which is what my Bill to abolish the death penalty and to be introduced this evening was called. It seems to me that this legislation would be consistent with it. If it is the wrong time now, perhaps the Minister will tell us, in the context of this Bill, when is the right time, because it was the wrong time in 1981, it is the wrong time in 1989 and it has been the wrong time every year since 1981. Perhaps the Minister could tell us, in the context of this Bill, whether he is creating the conditions in this Bill for the abolition of the death penalty or whether he is not. I would see this as being entirely consistent with it being the wrong time at the moment but being the right time when this Bill is passed.
Senator Ross, you are back now to Item No. 2 again. I wish you would make your contribution to the Bill before you and resume your seat.
I am sorry, a Chathaoirligh. I am slightly obsessed with Item No. 2. I had a long speech prepared for the House about it because I was informed I was going to be able to deliver it. As a result of that perhaps it is coming out involuntarily.
With great respect, Senator Ross, regarding the speech you had written for Item No. 2, I feel you are delivering it now in a nice way.
I probably am.
Please get back to this legislation.
I am getting back to it. Let me welcome the fact that this Bill will probably act as a deterrent to crime. I think the philosophy behind it is also consistent with the abolition of the death penalty, because the philosophy is that detection is more important than penalty. This Bill is about detection. It is about producing the forensic evidence which will make the commission of crime less likely. It is not about penalties. I have always been a great believer in the fact that, if you are going to prevent crime, what you do is what is in this Bill, that you stop it being committed at source, but what you do not do is impose strict, barbaric penalties. That is why I think this is consistent with what I was saying, because if the Government lay less emphasis on penalties and more on detection we will have a far healthier criminal code in this country.
I would like the Minister in his reply to say whether this is actually the Government's philosophy at the moment and, whether in the light of the very healthy attitude in this Bill, they intend to come forward with measures to reform the criminal code on the issue of penalties and whether they have got plans to reform the penalties which are imposed for crimes of all sorts in this country. I include in those crimes, the crimes of treason and of capital murder. If the Government are going to have a higher detection rate on that, I presume that the barbaric execution which they apparently seek still to impose or to keep on the Statute Book will be removed from the Statute Book as a balance to the particularly constructive measures in this Bill.
In reading through the Bill and considering the various sections and conditions that are outlined in it, a number of things come to mind. The thing I found most confusing about the Bill was that recently in this House we discussed different legislation. There was legislation, a Customs and Excise Act, which sought to extend the powers of custom officers in the vicinity of airports, ports etc. I proposed an amendment to that legislation seeking to allow the taking of samples. In the case I proposed it was a urine sample and I went to great pains to explain to the Minister at the time what was involved.
What I was seeking to do is being covered in this Bill now. At that time most of the drugs that were being smuggled into airports were being smuggled by people who either ingested or in some way kept in the body orifices containers of heroin. A situation had arisen where customs officers were quite aware that these stuffers and swallowers, as they are called, were literally walking through customs carrying, secreted in some parts of their body, containers — normally condoms — full of heroin. A new test had been developed which by the use of the urine sample could determine whether somebody was carrying any kind of a foreign body inside his or her body; in other words, it would have identified the person as having in his or her stomach a container containing heroin or whatever.
I put forward this and I explained in detail the way it operated. I explained how it was in operation in various airports, particularly Heathrow, in the UK, how it was being used in the Continent, how the European customs officials had discussed this through their international body and how the Irish customs officials had asked that the legislation be extended to do precisely what we are talking about here today, the forensic evidence, to allow urine samples to be acquired of people suspected of either having stuffed or ingested containers of hard and illegal drugs.
Having discussed it at some length — I recall the day very well because we had a lot of argument about the point — the main objection which was put forward by the Minister at that stage was that this would in some way be an intrusion of a person's bodily integrity, that it would create some constitutional difficulties and a whole lot of other things, which now appear to be a total rigmarole in the light of what we have here before us today. I ask the Minister to give a very detailed response on that point.
I recall well that in my proposition I was also supported by speakers from the Fine Gael Party on that day. We thought that perhaps this was a very practical way of dealing with this. All it would have proven was that circumstantially it was probable that the person was carrying drugs and it would have allowed that person to be retained in custody for a number of days or hours in order to allow either something to come through through normal bodily functions or through medical examination to actually find the container.
This Bill before us today is giving the power to do all that I was proposing at that time. I would love to know what happened in the meantime in the Departments of Justice or Finance, or whichever Department put it forward. I would like to know what was the development in the meantime. How was it that something which was seen to be absolutely practical a year ago to us on the non-Government side of the House now suddenly appears in other legislation to be totally acceptable? I am not saying that in the sense that I object to what is in the Bill; I welcome most of what is in the Bill — but I worry in case some other official in another Department is aware of something which we here are not aware of which could eventually give rise to this Bill being found to be unconstitutional. I look forward to hearing a very detailed response on that and if I do not get a very detailed response I intend to bore you on Committee Stage with it in terms of reading what was said during the previous discussion.
On that point I think it is also important that people will recognise, as certainly a lot of speakers on the Government side of the House do not seem to recognise, that this is merely circumstantial evidence we are talking about. This is simply a recognition of the great developments and innovations in forensic medicine and forensic science. It is critical that that would be taken into consideration. All it does, of course, is that it provides circumstantial evidence to show that somebody was probably in a certain place at a certain time. That is all it does. I would certainly like a clear undertaking from the Minister that this does not prove the guilt or otherwise of a person. There are all sorts of circumstances where the person's DNA profile or body excretion might be found in a certain place but that does not necessarily mean that a person is guilty.
For that reason I have concerns about the Bill. The "Hang-em and Flog-em Brigade" really opt in very simply for this kind of legislation; it gives us more power and therefore you sort of cod people into thinking you give us more justice. More power and more evidence does not mean justice, unfortunately.
It gives us more expertise.
Indeed and one would welcome more expertise. It is on that basis that much of what is in the Bill would be recognised. The subtlety put forward by my colleague, Senator Murphy, is something that should be taken on board by speakers from the other side of the House who simply believe that, standing up with evidence, we can say that up until now we just had a person's fingerprints but now we have got evidence that their semen was there and therefore, they are guilty of rape or whatever. It is not just that simple. It is merely circumstantial evidence. If somebody said "I saw that guy coming out of that room at that particular hour," that is direct evidence and it should also place a person in a particular time and place if the judgment of the person giving the evidence is correct.
Under this Bill certain forensic evidence which is found can now be identified and used in evidence. Not only would I not object to that but, as I took pains to point out at the beginning, I would welcome it because any extra evidence, any proper harnessing of modern technology and of developments in modern science are to be welcomed. The discussion, in many cases reactionary, which has taken place against this type of development is similar to what happened when fingerprinting was first brought in and people objected to its use.
There was the same reaction with regard to video interviews where children of a very young age were required to give evidence. In more developed countries than ours that type of development is allowed to take place — the use of modern science, the video tape recorder — to facilitate young people who are required to give evidence to a court of law. I have no objection to that and I do not think any sensible person could have any objection to it. Similarly, it has taken years to have photographic evidence accepted. I am not sure of the precise position about photographic evidence in courts of law at the moment but for years there was a lot of difficulty about its acceptance. There is still a lot of difficulty about accepting audio recorded evidence.
I would like to hear from the Minister the reason why all technology was not encompassed in this legislation. It does not matter that it is the taking of samples. What we are talking about there is the use of modern technology. We are talking about harnessing the progress that has been made in forensic science. Let us not confine it to that. Let us take it a bit further. Let us look at other ways in which modern science can help us in bringing people to justice and "justice" is the key word. One of the things I like most about this piece of legislation is contained in section 2 (4). Before a member of the Garda takes a sample from a person, the Garda shall inform the person "of the nature of the offence in which it is suspected that that person has been involved...". I welcome that. I think that is a major move forward rather than section 30, which has been abused, because the Garda would say — and I have discussed it with them — they have not got the enabling legislation to move in other directions. I am all in favour of giving the Garda the enabling legislation to move in whatever judicial way they need to in order to compile evidence to bring to court, but I hate giving a carte blanche. That is important.
The other issue on which I am not at all clear is the holding of records and the destruction of records. I want to know precisely how this evidence is going to be stored and where it is going to be stored. I want to know who is going to have access to that evidence. I want to know the requirements somebody has to go through in order to have access to that evidence while it is stored. I want to know precisely how it is going to be destroyed at the end of that time. I do not believe it is going to be destroyed. That is a fairly stark statement to make. If the most stringent regulations are not brought in to clear the operation of this, then it will certainly be misused. That is what would worry one most.
There is the other point — the trillion to one chance of two people having the same DNA profile. If there is a chance, then it could happen. Coincidences do happen in real life. I would like to hear a very detailed description of how this coincidence of DNA can happen. I would like to know particularly has it been found to be the case — in other words, is it possible that there are people living on this globe today with identical DNA profiles?
Is the Senator excluding identical twins in his question?
No, I was going to ask a question about identical twins. I was going to ask precisely the question about two people who come from a split cell. Do they have the same DNA? My understanding is that they can, but I am not sure of this. I recognise this is a very technical piece of legislation. The difficulty about identical twins is that if the DNA of identical twins is identical it can lead to all sorts of difficulties in real life. I just want to give one example.
Many of the great stories in literature — I am sure my colleague, Senator Norris, will correct me on this — depend on coincidence. Certainly, the stories of Thomas Hardy depend almost entirely, in terms of development of plot, on natural coincidence. In the world we live in, the way people try to hide certain things, the possibility of twins living in this world not knowing that they have a twin somewhere else is quite common. We had a case that went on for six months in Tralee not so long ago. In that instance the most eminent of the Judiciary were involved, but people still say perhaps there were twins involved.
There can very often be identical twins, where somebody is trying to conceal a birth or where the children are separated at birth, neither knowing that the other exists, and they may well be living in the same area. It is not a huge coincidence to find that they might grow up in a similar kind of social milieu. It is not a huge coincidence to say that perhaps one could be circumstantially tied to the place and time of a crime committed by the identical twin. I do not know how you are going to deal with all that, but I am looking forward to hearing the answers to it. I have read a little about this over a period of time and I am not at all convinced that there are clear answers to it.
This brings us to the point of the use and misuse of forensic evidence and how it is going to be used in the courts. In looking through the Bill I see how it can be used as evidence. I see that we can also deal in a certain way with a person who refuses to comply with a request for a sample.
Notice taken that 12 Senators were not present; House counted and 12 Senators being present,
On a point of order, how is it that the person who calls for a quorum leaves the House afterwards?
That is not a point of order. Senator O'Toole without interruption.
I think my colleague, Senator Ross, wanted to ensure I had an audience. May I ask that the Senators on the Government side direct their ire at the person who caused the chaos today. It is not on this side of the House but in the seat which the Senator is now occupying.
Before we sought the quorum I was dealing with the point about identical twins and the requirement on us all to see that justice is done as well as being seen to be done. I will not labour that point any further but it is basically this. How does one explain the difficulty which can arise? Where is the failsafe? The whole basis of British law, which used to be the same for Irish law until Lord Denning made his famous statement of recent times, is that it is better for 99 guilty people to go free than it is for one innocent person to be incarcerated. It is on that basis that we have always protected the rights of the individual. It is on that basis as well that we have all supported the Birmingham Six because we have objected first to the way the forensic evidence was obtained, secondly, how it was stored and, thirdly, how it was presented. On the basis of the coincidences that would be necessary to make them guilty we said that it was not acceptable, that there was plenty of room for doubt.
Here is the vital question on this one. Let us take the example of a court case where, through the use of forensic evidence arising from the sample of urine, semen or whatever, this sample having being found at the scene of the crime, that the DNA profile of some suspected person is identical to the profile found at the scene of the crime and that this is the major evidence that the person is guilty. Suppose also at that particular time the lawyer representing the defendant produces out of the blue an identical twin of the defendant whom nobody knew existed. I ask the Minister to recognise that the case would collapse, that the DNA would be of no use. Having said that, we then take it a step further where a lawyer says "How do you know that my client, the defendant, does not have an identical twin somewhere?". The only way to do that is to have the DNA profile of every living human being computerised. I ask the Minister to respond on that one on the question of identical twins.
I want to deal with the regulations which will arise on the implementation of this Bill. In section 5 we have the regulations regarding the taking of samples. They cover a certain number of areas, how the authorisation can be given, who will give it, the time and manner of taking the sample under this Bill and the protection of young people, etc. This is precisely the point on which the whole Birmingham Six issue falls apart. Nobody accepts that the manner in which the samples were taken from the Birmingham Six was acceptable. They were not taken under laboratory conditions. It seems that the regulations which outline how the sample will be taken will be what is critical. I ask the Minister how will the sample be taken?
On a point of order, it was brought to the attention of Members of the house recently that Members should not approach the Chair during debate.
Acting Chairman
It is a matter totally for the discretion of the Chairman.
That is fine but I am bringing to the attention of the Chair that we — the Whips — were asked to bring this to the notice of the people we represent. The reason I made the point is that I already brought that matter to the attention of a member of our group today who was going to do precisely the same thing.
It seems to me that the regulations which cover the taking of samples will be critical. Senator Lydon asked a question earlier about certain kinds of samples which might be required. They are not required in my reading of the Bill but in his reading of the Bill he sees a greater need than the rest of us. In terms of the taking of samples I want to know how they will be taken, who will take them, where they will be taken and how the regulations will apply. The Minister at this stage must have had sight of the draft regulations. Could we have some sight of them?
The Minister may recall the total farce we had last year with the restaurant regulations. Those regulations were required to be brought before this House and they had to be accepted by way of a positive process. They actually had to be approved by vote, order or agreement of the House. However, the regulations governing section 5 of this Bill are dealt with through a negative process. The section states:
that every regulation made under this section shall be laid before each House of the Oireachtas as soon as it may be ...
It further states:
if a resolution annulling the regulation is passed by either such House within the next 21 days, the regulation shall be annulled.
It is laid before the House, as many things are every single day, and unless they are brought up, discussed and rejected, then they become law.
We already have the problem here today of trying to have something discussed in the House even when we have agreement to get it discussed. If we have that difficulty getting something discussed on which we already have agreement, can Senators imagine the difficulty we will run into if we seek to have discussed something which the Leader of the House will refuse to put on the Order of Business? For instance today we have had laid before us for the information of the House, the Health Services (Amendment) Regulation, 1989 and the Statutes CXLVII and CXLVIII from University College, Cork. For all we know, that might be selling Fota Island, but it is there before us today. In the same way, in three months' time, we will see a regulation which will be there under section 5 of the Criminal Justice (Forensic Evidence) Bill, 1989. It will have outlined in that paper, how, where, when and if and all the conditions and requirements for the taking of evidence under section 5 of this Bill. It is there by negative process. If we do not reject it, it becomes law. We do not have to discuss it, we do not have to read it unless we reject it. The process by which we would reject it is by getting it on the floor of the House for discussion, having had the discussion, taking a vote on it and then having it rejected.
That is not good enough. It seems to me that this is too vital an undertaking to have left so vague. It should not be dealt with by regulations. The methods should be included in the legislation. However, I recognise that modern science develops, that there may be new ways of doing the same job next year and it would not be appropriate to have different ways of taking evidence and having it brought in to legislation on an annual basis.
There is a way around it. I intend having an amendment on Committee Stage that the regulations under section 5 would be by positive process. Instead of saying "that every regulation made under this section shall be laid before the House and unless it is annulled ..." it would be "every regulation shall be laid before the House and shall become accepted when it is passed by the House ...". It has to be presented and passed and agreed to by the House.
That is the very least we could agree to. The advantage of that from the Government's point of view is that by not having it enshrined in the Bill, it allows the Government to take advantage of developments in forensic science and if there are new ways of taking samples or whatever, they can simply bring in the new methods by a new regulation. The requirement must be that the regulation be laid before the House by a positive process and be accepted by the House.
I would be prepared to agree that far but I would still be unhappy with it because one of the great problems with the House in dealing with that type of thing is that unfortunately when regulations are laid before this House by positive process they can only be either rejected in toto or accepted, they may not be amended. I would certainly want to hear the Minister's explanation of that. What happens if a regulation is laid before the House and somebody proposes to amend it? Can it be amended? How can it be amended? If people agreed with 95 per cent of it, what would be the procedure that would be followed at that time?
In section 4 of the Bill which deals with the records there must surely be regulations for the storing of this kind of information. I do not see them in the Bill. Section 3 refers to refusal of consent to the taking of a sample and section 4 refers to the destruction of records and samples. Everything is in it except the storing of the records. How will they be stored and where will they be stored? That surely will have to be a matter of regulation. Will it just lie around with other evidence or will it be distinguishable in any way from other evidence? Will it just simply lie there in a file, open and available to other officers or anybody involved in a case? Who will be in charge of it? At what level will confidentiality be maintained? I do not understand why that is not contained in the Bill.
The Bill, in what it sets out to do, is obviously quite acceptable, but where does its operation take place? Is that laid down? Are these regulations written and available? Have the questions which I have put to the Minister been dealt with already in the Department? I believe they have not. I believe there are some serious questions which will be raised about this Bill and the most serious one is the question of regulation. There is no regulation in the Bill about storing of information. It does not indicate where information will be stored. The Bill does not indicate who will have access to the information stored and, as I said earlier it does not indicate how it will be stored or how it will be destroyed if, under the terms of the Bill, it is required to be destroyed. I certainly want to know that. I am afraid that this evidence may be open and available to a whole variety of people who may be tempted to abuse it.
The regulations should be implemented by way of positive process. The regulations should have to be presented and accepted positively by the House and, more importantly that in those situations it would be possible to amend them. I am worried because the regulations are not available to us in some form at this time. Regulations, as I understand them, deal with matters that change regularly and which need to be changed. In order to facilitate a Department in operating a Bill, they would use regulations as opposed to amending legislation. That is a far more businesslike way of doing something than simply requiring a new Bill to be brought in every time a change needs to be made.
There is a basic point of principle here, a basic point of law. There is a basic point here about freedom of information, about access to information and about confidentiality, all those things together and the tension that must be between them. I ask the Minister to indicate how that will be done and how the regulations will be brought in. I want him to deal with the problem of coincidence which I have raised earlier and the question of the indentical twins, how that would stand in a court of law and where it would get us.
Those are some of the things I have to say about the Bill. I do not want to go on any longer because it would be misinterpreted if I did. I believe we should be in a position to answer those questions. We will get into a legal morass on a number of these issues in a court of law. For that reason it would be well to clear them up now. It would also be well for the Minister at least to indicate his willingness to accept amendments to this Bill on Committee Stage, I certainly will have a number of amendments along the lines I have indicated on Committee Stage.
Acting Chairman
The Minister to conclude.
Ba mhaith liomsa thar ceann an Aire Dlí agus Cirt buíochas——
Notice taken that 12 Members were not present; House counted and 12 Members being present,
Is dóigh liomsa nach bhfuil suim ar bith ag cuid de na Seanadóirí atá ag siúl amach anseo agus iad sin atá ag iarraidh córam. Mura bhfuil suim acu san fhreagra atá mise sásta a thabhairt, is féidir liomsa mo bhuíochas a ghadbháil leis na Seanadóirí——
(Cur isteach.)
D'fhan na Seanadóirí O'Toole agus Murphy ach na Seanadóirí eile ceann amháin a d'imigh amach, ceann eile a bhí ar a bhealach amach, bhí eagla air go mbeadh córam anseo dá bhafanfadh siad.
Ní dóigh liom go mbaineann cúrsaí inmheánacha an Tí seo leis and Aire, agus mura mbaineann, ba chóir dó leanúint ar aghaidh len a fhreagra.
Ba mhaith liom mo bhuíochas a ghabháil leis na Seanadóirí as ucht na díospóireachta anseo anniu. Go raibh maith agaibh.
It is totally without precedent for the Second Stage of a Bill to be wound up without dealing with the queries raised. I would like to refer, on a point of order, to the Minister's own statement, which said: "As the Bill is short I will be pleased to have Senators' views on it and I will endeavour to deal with any questions which Senators may wish answered."
Acting Chairman
Senator O'Toole is completely out of order.
Excuse me.
Acting Chairman
The Senator is completely out of order. I have no responsibility for the reply the Minister gives in this House. If the Minister wants to continue that is his right.
(Interruptions.)
Ba mhaith liomsa thar ceann an Aire Dlí ags Círt buíochas a ghabháil leis na Seanadóirí a ghlac páirt sa díospóireacht. Mar atá a fhios agat, tá an tAire i dTuaisceart na hÉireann inniú ag cruinniú den Chomhdháil Angla-Éireannach i Maryfield. Gheobhaidh na Seanadóirí a bhfuil ceisteanna acu deis iad a phlé ar Céim an Choiste. Cuirfidh mise in iúl don Aire na pointí agus na ceisteanna éagsúla a pléadh inniu. Aontaím le cuid de na pointí ginearálta a ardaíodh.
I want, first and foremost, to apologise on behalf of the Minister for Justice who, the House will understand, is co-chairing a meeting of the Anglo Irish Conference in Maryfield today. I would, of course, like to thank all of the Senators who contributed to the debate. It is a very important piece of legislation and will, I believe, make a significant contribution to the detection and conviction of those who commit a criminal offence. I know there are issues arising out of the Bill which Senators will wish to discuss further or on which they will require clarification. I am sure they will appreciate that these are matters which should properly be left to the Minister for Justice who, through no fault of his own, is unable to be here today. I can assure the House that careful note has been taken of all comments that have been made by Senators in the course of the debate and those comments will be carefully considered by the Minister for Justice before Committee Stage.
I will, of course make reference to a number of the general points made by the various Seantors. With regard to the question raised by Senator Bulbulia about discussions with ICI, negotiations with them to obtain a licence to use the technique are at a very advanced stage and no difficulties are anticipated about getting this licence.
Senator Robb mentioned the question of an inference to be drawn from refusal to give a sample. It was also mentioned by other Senators. It will be a matter for the court to decide in the circumstances of each particular case whether it is appropriate that an inference should be drawn. An inference will not be drawn if the court is satisfied that there was good cause for refusal.
I would like to thank in particular Senators McEllistrim, Farrell and Lydon and all the Senators who welcomed the Bill and to thank them for the support they expressed for it. Senator Lydon referred to the question of samples of semen and how will samples of semen be taken. The Bill does not provide for the taking of samples of semen and it is not necessary as blood samples will be adequate.
With the greatest respect to Senator O'Toole, I must pose the question: did the Senator actually go through the Bill with a finecomb because the points he raised are enshrined in the Bill? He thought forensic evidence should be treated only as circumstantial. The Bill provides the power to take samples. It makes no changes in the laws of evidence. It is a matter for the court or the jury to decide what weight is to be given to any item of evidence, including forensic evidence.
The Senator asked if every person's DNA is different. Yes, it is different apart from identical twins. I do not want Senator O'Toole to make a facetious remark but, in a jovial sense, I think many people including myself would say this evening that, thankfully, Senator O'Toole does not have an identical twin in the House. The same could be said I am sure for other Senators — that hopefully, they do not have an identical twin. In fact, it is a matter for the court and the jury to decide whether there is any real danger of a wrongful conviction and to decide on the possibility of an identical twin existing. The Bill lays down no rules about how the court or jury should view forensic evidence but, as I say and at the expense of repeating myself, it is a matter for the court and the jury to decide whether there is any real danger.
Senator Bulbulia referred at the outset to the Bill being prompted by Deputy Shatter's Bill. I would have to take the opportunity of putting on the record that this Bill was not prompted by Deputy Shatter's Bill, that his Bill contained many defects and would not form the basis for legislation on this matter.
We only set the pace.
Senator Bulbulia also referred to details of the regulations to be made and noted that they are not given in the Bill. The main safeguards are enshrined in the Bill. The regulations will deal with detailed matters which need not be covered by it. This is not abnormal. It is something which is very normal and the regulations cannot be made until the Bill is enacted.
Senator O'Toole asked who should carry out various functions. I would refer him to some of the safeguards that my colleague outlined briefly, the safeguards provided in the Bill — the taking of a sample must be authorised in writing by a superintendent or officer of higher rank; the suspected person must be informed before a sample is taken and why it is being taken; intimate or instrusive samples may only be taken by a doctor, or a dentist in the case of a dental impression. All of these safeguards are there and the regulations will be made by the Minister when the Bill is enacted.
Reference was also made regarding the storing of records. How the Garda handle and store evidence is a matter entirely for internal Garda regulations. This Bill will not introduce any novel features which would require more regulations. The Garda no doubt treat all evidence as confidential and it would be a breach of discipline for any members to break this confidence.
Senator Ross was particularly interested in Item No. 2 on today's Order Paper in relation to the motion in his name and that of other Senators. May I say to him that there is no relationship between that proposal and the death penalty and this Bill and perhaps some of his colleagues would so inform Senator Ross. I will do it myself as he was so interested.
Senator O'Toole mentioned the previous Bill. That Bill was the responsibility of the Minister for Finance and not that of the Minister for Justice and, on behalf of the Minister for Justice, I would have no responsibility over matters and Bills which the Minister for Finance would bring before the House.
Mar fhocal scoir ba mhaith liom mo bhuíochas a ghabháil leis na Seanadóirí go léir a ghlac páirt san díospóireacht suimiúil seo. Má tá mion-phointí a ba mhaith leo a phlé ar Chéim an Choiste, beidh an tAire é féin anseo chun deilleáil leo.
Question put and agreed to.
I wonder if the Minister could address the matter of consent.
Acting Chairman
No. When is it proposed to take Committee Stage?
On the next sitting day.
Committee Stage ordered for Wednesday, 21 May 1989.
Acting Chairman
When is it proposed to sit again?
Twelve noon next Wednesday.
We normally sit at 2.30 p.m. I do not know why it is changed from 2.30 p.m. to 12 noon next week. Are the Government trying to pull another fast one to get four weeks' business done in one day, as we did last week? I cannot agree without having some consultation with the Whips. I want to know about Private Members Time next week. I want to know who will get that time next week. I want to know what is going to happen about the farce today. There is no way I can agree to 12 o'clock next Wednesday without a decent explanation of what we are about here. I am objecting.
Acting Chairman
Then I shall put the question: "That the House do now adjourn until 12 noon next Wednesday." I think the question is carried.
Senators
Vótáil.
Will Senators who are claiming a division please rise?
Five or more Senators stood.
The division will proceed.
Question put.
The Seanad divided: Tá, 21; Nil, 7.
Tá
- Bohan, Edward Joseph.
- Bromell, John A. (Tony).
- Cassidy, Donie.
- Cullimore, Seamus.
- Farrell, Willie.
- Fitzgerald, Tom.
- Fitzsimons, Jack.
- Hanafin, Des.
- Haughey, Seán F.
- Hussey, Thomas.
- Kiely, Dan.
- Kiely, Rory.
- Lydon, Donal.
- McEllistrim, Tom.
- McGowan, Patrick.
- Mooney, Paschal.
- Mullooly, Brian.
- Mulroy, Jimmy.
- O'Callaghan, Vivian.
- Ryan, William.
- Wallace, Mary.
Níl
- Bulbulia, Katharine.
- Kelleher, Peter.
- Murphy, John A.
- Norris, David.
- O'Toole, Joe.
- Robinson, Mary T.W.
- Ross, Shane P.N.
Tellers: Tá, Senators W. Ryan and S. Haughey; Níl, Senators J. O'Toole and S. Ross.
Question declared carried.