This is a drafting amendment and does not call for any discussion.
Criminal Justice (Forensic Evidence) Bill, 1989: Committee Stage (Resumed).
Government amendment No. 2:
In page 2, line 19, to delete "1928" and to substitute "1985".
Amendment agreed to.
Section 1, as amended, agreed to.
SECTION 2.
I move amendment No. 3:
In page 2, line 29, after "forensic testing" to delete "all or".
The purpose of the amendment is to give more precision to this legislation. As the section is drafted, it can mean that any individual person who is being tested for the purpose of this Bill could have 11 different tests perpetrated on him. The Minister in his opening remarks referred to the extra efficiency and the scientific progress that has been made in relation to forensic testing and it would seem to be unnecessary that a single individual who would come under suspicion should be subjected to that quantity of sample taking. Also, it should be noted that many of the samples are taken compulsorily as provided in this section; some would be taken compulsorily; some with consent; some under medical supervision; some without medical supervision; some would be taken from minors and children with the consent of guardians or parents. Again this is an area where civil liberties are very much at risk. The purpose of this amendment is to seek to ensure that there is no serious infringement of body integrity and civil liberties and of minors who would be subjected to such tests. It is an attempt to be more precise and to ensure that the very wide nature of these provisions is not allowed to operate.
There would be no point in deleting "all or". To do so would not change the meaning of the provision in section 2 (1) and would be misleading in that the fact that the amendment was made might suggest that the member of the Garda Síochána was being limited to taking one sample.
Could I state that that is not or could not be constructed by what remains in the phrase, "for the purpose of forensic testing, any of the following samples...". There is no way whereby "any of the following samples" could be construed as limiting the Garda Síochána to a single sample.
What I am seeking to prevent here is the harassment that could arise where somebody could be taken into custody under section 30 of the Offences Against the State Act, detained for 24 hours and, on the direction of a Garda Superintendent, that could be extended for a further 24 hours or taken into custody under the Criminal Justice Act, where they can be held for eight hours, extended by six hours, extended by another six hours. The powers under those two Acts are extremely wide. Persons could be subjected to continuous sampling and testing, many of which are very embarrassing, would be infringements of body integrity if they were not covered by a Bill of this nature and which can be perpetrated on minors and children over the age of seven years. It is improper for legislation to be passed in such manner as to give wide powers that are so blatantly open to abuse.
The Minister, of course, has a point. If we were dealing here with ordinary legislation to do with ordinary matters, then precise wordings like this would not trouble me at all but what we are dealing with here is something entirely different. We are dealing with considerable rights to infringe in ways that are quite unusual. It is important to say that the technological advances and the analytical techniques that have developed do make some of these things necessary and the possibility of catching offenders, particularly people who have committed serious offences, does in principle, justify the use of these powers. However, you only have to look at the record, the unfortunate but regular record of misuse of the Offences Against the State Act, with close to 90 per cent of those who are arrested never being charged with anything, or the extraordinary events that occurred in this country when President Reagan was here which resulted in 30 women being compensated with sums ranging from £1,000 to £3,000 or £4,000, by the State out of court for unlawful arrest, to realise that we do not operate in a perfect society any more than anybody else does. Therefore, it is necessary that legislation which gives powers to do things to people should be written in as crisp and as tight language as possible and catch-all phrases which cover a multitude of possibilities, are not the way to do it. I will return, when we get to the section, to some of the other rather more serious matters that are contained in the section and which deserve to be elaborated on.
Senator Costello is perfectly right in endeavouring to have this legislation written with the sort of precision that unfortunately does not characterise legislation that has come from the Department of Justice either in recent times or further back. If they get the chance, they want to give as much power as possible and then it is a case of "trust me. I know what I am doing" from then on. I am not entirely happy with that approach, I must say.
"All or any" is used as a phrase and my advice is that this is an appropriate phrase to use. It was inserted by the parliamentary draftsman. I understand the point being made but the technical advice is that it is an appropriate phrase to use. If a member of the Garda Síochána sought for the purpose of harassment to take repeated samples he would at least be in serious breach of discipline. Remember that the taking of each sample requires the written authorisation of a superintendent of the Garda Síochána. A case could not be possible unless he was proposed to be a party to it.
We have said enough, a LeasChathaoirligh, in relation to this matter. We feel it is essential to retain "all or any" in the Bill and we are not agreeing to the amendment being put forward by the Senators involved.
I cannot understand the tenor of the Minister's remarks. The Minister has stated that this is a most effective manner of testing. It is a huge stride in revolutionising forensic testing. I understood from the Minister that each of these samples and methods is sufficient to enable accurate findings to be made. If one includes "all", that is leaving it open to abuse and it is undermining what has already been said in relation to the effectiveness of this new type of testing. I cannot see why the Garda would want to have the excessive freedom — that is the only way I could describe it — of having the word "all" inserted in this provision.
The provisions included in the Bill are at the recommendation of the parliamentary draftsman who feels that it would not be satisfactory unless they were included in the Bill and in the section. I emphasise that if a garda sought, for the purpose of harassment, to take repeated samples he would be in very serious breach of discipline. He must receive consent of the superintendent before he can take actual samples. Abuse would not be possible unless the superintendent was proposed to be party to it. The fears being expressed are rightly expressed but they are unfounded and the words should be included in the Bill. We propose not to agree with the amendment.
Can the Minister suggest to me any circumstances under which all of those would need to be taken? Is there any conceivable offence where you would need blood, pubic hair, urine, saliva, hair other than pubic hair, a nail, any material found under a nail, a swab from any part of the body other than a swab from a body orifice or a genital region, a dental impression, a footprint, and so on? Can the Minister suggest any circumstances or offence which has been known in the cavernous archives of the Department of Justice for the last 60 years which would need all of those samples to be taken. What are we at? Let the Minister not quote the parliamentary draftsman. I have been in this House too long to take the parliamentary draftsmen too seriously. They have their substantial collection of errors and misreadings and there has been legislation passed through this House which I am certain neither I, the Minister nor his civil servants understood and ultimately we were told that it was the form the parliamentary draftsman suggested. We should have reasons why things are necessary. There must be a practical reason for something, or else we should not have it. Why would anybody ever need all of these?
The Minister said the parliamentary draftsman believes that phrase "all or" should be included. It is not for us to accept the wording of the parliamentary draftsman and the opinion of the parliamentary draftsman. We are the legislators. If it is our opinion that that wording is too wide, that is what counts.
In relation to what the Minister said, that it would be carried out by a member of the Garda Síochána with the sanction or authorisation of a superintendent, I do not know what that means, because I have never known a case under the Offences Against the State Act or the Criminal Justice Act where a superintendent has refused authorisation. That is a mere formality, and that is not a safeguard. That is not a protection. There is nothing sacrosanct about the wording of a parliamentary draftsman either.
Could the Minister explain the consequences on the effect of the section of deleting the words "all or"? That would clarify the reason for retaining it.
It would seem to me that what we need more is the opinion of a forensic scientist than a parliamentary draftsman as to why you would need to obtain information from all the samples, for example, blood, urine, saliva, etc. My knowledge of physiology, such as it is, would indicate that in the vast range of circumstances I can think of the levels of material in all of those three fluids should very closely parallel one another.
I have difficulty visualising why you would need to get a blood sample, a urine sample and a saliva sample. The only purpose I can see for doing that is to confirm that the levels of whatever you are interested in in those substances would parallel one another. There is a danger that they can be used — it does not say anything about where the blood sample would be taken from. Can we not visualise a set of circumstances where the blood sample would be taken from very unpleasant parts of the body? Is there anything in here to stop it happening? There are precedents of persons who suggest to medical practitioners in Garda stations late at night, after they have had a bottle of stout or two over the mark, that they should obtain blood samples from all sorts of obscure parts of their anatomy. I am concerned that these possibilities exist and that the possibility of outrageous humiliating behaviour is not properly excluded in the terms being proposed by the Minister.
A single sample may not be enough. Blood might be required together with a hair, nail clipping and some other samples. Different samples are needed for different tests. It is unlikely that all the tests will be required, but we want to give the Bill strength, not to have it limited in any way. Referring to the Senator's point in relation to reading the section, if you remove "all or"— and we are advised strongly not to remove that — it would make the Bill less effective. We have been strongly advised by the draftsman and the specialists in this field. Nothing has been put forward in the Seanad which would convince me not to take the advice of the experts in this field. I am standing by our view on the amendment and we are opposing it.
I always have trouble dealing with legislation from the Department of Justice. I have a different experience of the world from other people. I am not sure why. Legislation, particularly legislation that has an impact on the Offences Against the State Act, is abused regularly. As recently as last Thursday night, a young man of 19 who was at a meeting where I spoke was stopped by a garda afterwards and asked for his name and address, and when he asked why, the Garda said, "because we suspect you of being a member of an illegal organisation". The young man is no more in an illegal organisation than I am. He happened to be at a meeting to deal with the Gibraltar Three and, therefore, became a suspect and was stopped and questioned and had his name and address taken. He was quite frightened. When I met him he was pale and his voice was trembling. Those things happen. This is an intelligent, interested, young man who came to a meeting that was publicly advertised. This happens regularly, it does not happen in large numbers and things like this can be abused.
I have no time for experts. If the experts are so sure that the Garda need those powers, they should have given the Minister the evidence — not their opinion — on which they came to the conclusion that they were necessary. Experts who simply say, "Trust me, I know what I am doing", should never be trusted because if they cannot tell you what they are doing in clear, simple English, they do not know what they are doing. They are simply covering all their options. It would be more helpful to give one specific case where all those samples would be necessary. Otherwise you come back to the suspicion that we are being had and that this is just a catchall in case they might, maybe they will, and if they should need it.
It is not going to make an enormous difference, but there is the question of intent in legislation and how it will work in ten, 20 or 50 years time. If these phrases are not tightened up now, they can have all sorts of different meanings over the years.
I understand the concern the Senators are expressing, but I wonder if we are looking at it from the wrong point of view? This is in one sense quite a major change in relation to forensic evidence. In another sense it is following up something we did many years ago when we brought in finger printing. We now seem to be entering into an era in which it will be possible to have specific information of a physiological nature, as the Senator indicated, which might indeed prove someone's guilt but might also quite conceivably be specific proof of the innocence of that individual. I would prefer to see a comprehensive series of samples being available as much for the defence as for the prosecution to ensure that the correct answer is derived at the end of the day. I sympathise with the emotional feeling but I must say I would be very concerned to see the word "all" removed. I am not just thinking from the point of view of the Garda Síochána or the prosecution.
I am quite satisfied from the information at my disposal, and from reading the Bill, that "all or any" should be included. Some of the issues being raised are red herrings in relation to this issue. The phrase "all or any" is used for drafting reasons and there is no danger arising from its use. What safeguards are needed are already provided in the Bill. I am quite satisfied in relation to it and it would take from the Bill if those words were deleted. I do not think I can add anything further to that.
I do not think it is appropriate for the Minister to describe our concerns in relation to this matter as being a red herring. We are concerned when substantial new legislation is being put in place in relation to suspects about the powers being granted to the Garda authorities which may have a bearing on constitutional rights. It is a very serious matter. There is no question of a red herring being introduced. We are attempting to be constructive and we would like the Minister to be equally approachable in the sense that he should accept the amendments we have put forward and look at them in a sympathetic way because we are trying to be helpful. I am not satisfied with the Minister's justification for this phrase, that his parliamentary draftsman thought it was necessary. The parliamentary draftsman is only dealing with the technicalities of the Bill but we are concerned with the substance which is appropriate both to forensic scientists and to us as legislators. We are the only experts who are dealing with this. Our concern is related to the people who will be the subject of these provisions. Ours is a very real concern. I do not think it is satisfactory to take the word of the parliamentary draftsman or to cite him as the authority in relation to this matter. It is certainly not satisfactory to me.
The point has been made that the word "all" should be substituted by the word "some" but what we have done by deleting the words "all or" is to leave in "any" which is more than one but not the entirety. That gives the discretion to take a sample from the list given. That would in fact, make the Bill much more precise and better legislation. We are trying to be helpful and we would certainly appreciate it if the Minister accepted that useful amendment.
I appreciate what Senator Costello is saying but even if somebody took all of those samples I do not think it would be a terrible infringement upon the integrity of the body. A blood sample is a pin prick, one pulls out a public hair, one urineates into a sample jar, one spits for saliva, one pulls out a hair, one clips off a bit of nail or one takes a sample from under the nail. The whole thing is over in five minutes. One may give a dental impression or a footprint.
What about a swab, semen or a dental impression?
One does not give semen. There is a reference to a swab from the genital region.
There are 11 different samples that can be taken.
The whole thing would be over in five minutes. I know the Senator is concerned but I think he is making a mountain out of a molehill. If he had any argument to make at all it should be in relation to a sample of a nail as in subsection (1) (vi). The way that is written it gives the police permission to pull out a nail. Apart from that, the samples are not strong infringements of the body. I admit that a swab from the genital region may be embarrassing but, as Senator Conroy said, it would be nicer to find out that somebody was innocent from this swab than to find out that he or she was guilty. It may just prove people's innocence as well as their guilt.
Is there not a fundamental assumption that people are innocent until they are proved guilty? People do not have to establish innocence. That is taken as read and there is no need for any of these samples to be taken to establish innocence. As I understand it, innocence is taken for granted. These samples are designed to establish guilt.
I appreciate the Senator's point but there could be a situation in which, for example, someone is accused unjustly of a sexual assault and it might be possible by these forensic tests to prove without any question whatsoever that that person is totally and completely innocent. Under the present tests that might not be possible. I agree that everyone should and is presumed innocent before the law.
I should like to extend and explain what is going on here. Will the Minister who has the full advice of the Department of Justice — I know they know an awful lot, but they do not tell us much — explain the position of a person who is detained as a suspect, who is seven, nine or ten years old, and whose parent or guardian has given consent? Many of the law and order lobby are very big into making speeches about parental negligence and if they are to be logical they must assume that those negligent parents will be so disinterested they will give consent to anything to avoid trouble. Why should they have a swab taken from the genital region? Why would it be considered necessary to take a swab from a nine year old child? What would be required that could not be obtained in some other way? What sort of overpowering law and order reason would suggest that one would need to take a swab from the vagina of a nine year old girl? Will the Minister give me a good reason for that other than this preoccuption with all or everything at all occasions under all circumstances? I am not suggesting it will happen regularly but why do we need the power put into legislation?
Senator Ryan is raising these hypothetical cases to try to enhance his views about the need for this amendment. I am certainly not impressed by his arguments. All the samples have to be approved by a superintendent of the Garda Síochána and logic would dictate the type of samples to be taken in the appropriate cases. The point he is raising is inappropriate and I do not think it will arise. We cannot provide for hypothetical cases that may arise in the future. The provision gives the Garda Síochána the flexibility to take any of the particular samples they require, all or any. It is reasonable wording. Irrespective of the view of the parliamentary draftsman, I am quite satisfied with the wording in the Bill and I would not be in favour of removing those words. From my experience over a number of years, I am satisfied that those words should remain part of the Bill. The removal of "all or" could take seriously from the effectiveness of this legislation and create difficulties when the Bill becomes law. I am not accepting the arguments put forward; I am not accepting the amendments and I want the words "all or" included in the Bill.
The Minister said difficulties could be created if the two words are deleted. Will he detail some or any of the difficulties that might arise? The Minister referred to a hypothetical situation as being inappropriate but could he give us a single hypothetical situation where all of these samples would be required? We would be satisfied to hear of his hypothetical situation where all of these would be required.
I am not going to engage in a debate in relation to what may arise in relation to this Bill. If we delete "all or" the words "any of the following samples" would remain. Would "any" mean just one? If we delete the words the Senator is suggesting we should delete "all or", and the wording would be "any of the following samples, namely...""Any" could be interpreted as just one. That is a reasonable point of view. We do not want any misunderstanding about this Bill. As Senators Conroy and Lydon have pointed out, numerous samples may be required and they may be to the benefit of the accused. I am sure the Senators do not want to see the Bill being less effective, damaging to the accused or restricting the Garda Síochána from taking more than one sample. That is why "all or" should remain part of the Bill and why we are supporting it.
The Minister's explanation has reinforced my point. He is saying that if "all or" was taken out, then "any" could be subject to an interpretation meaning one. In fact, he is suggesting that "some" would be the correct meaning for the provision. That is precisely what we are looking for. There is no reason why the Minister cannot go back to his parliamentary draftsman to get an amendment along those lines. I do not accept his statement that "any" is restricted to one; if may mean "some" If he can have it clarified he should do so. We are seeking to delete the catch-all phrase "all". We cannot even envisage a hypothetical situation here or in the future. We want a reasonably precise provision to ensure that possible abuses that could arise will be prevented.
I am beginning to be somewhat astonished by the Senator. There are very obvious circumstances where these would be necessary, going back to the example of an horrific sexual assault and these, sadly, do occur. In such circumstances it might be essential to prove the guilt, or hopefully confirm the innocence, of an individual rightly or wrongly suspected of some horrific crime or series of crimes, to be able to obtain a sample of blood, a sample of pubic hair, a sample of urine, a sample of saliva, a sample of hair other than pubic hair, a nail sample, material from under the nail, swabs, dental impressions and footprints. Each and every one of those might be required, or any combination of them or any single one. It is essential that "all" should be retained in this provision.
I agree with Senator Conroy. That is precisely the position. Any watering down of this provision or removal of the words "all or" could take from the effectiveness of the Bill. "Some" could mean one; it could mean more. The words "all or any" are vitally important for this section. I have nothing further to add. We could go on for quite a length of time splitting hairs on hypothetical situations that may arise in the future. Where a member of the Garda Síochána gets permission from the superintendent to take a number of samples the flexibility must be there, even in the unlikely hypothetical extreme situations that may arise in the future. We should not use this Bill to restrict at that stage the taking of all or any of the samples mentioned in section 2.
I should like to put one final point to the Minister. Senator Conroy in half a minute made a much clearer case for the Minister's view than the Minister made. I do not mean any offence to the Minister. Will he explain how the Garda, who are not forensic scientists, are going to know that they do not need all the samples if the word "all" is inserted? How are they going to know they will only need blood rather than pubic hair, or are they, since the word "all" is inserted in the Bill, going to take all samples as a matter of course? They will not be in a position technically speaking to make a distinction between what they need because they will not have the technological know-how. If the word "all" is inserted, why will they not under routine circumstances take all those samples because they will not know which ones they will need and which ones they will not need?
I have great confidence in the Garda Síochána, their effectiveness——
And so have I.
——and their technical know-how and knowledge. They have forensic laboratories available to them. I have great confidence in their decision in relation to a particular case. I would not like to prejudge their decision.
It is not a question of confidence, it is a question of technical knowledge. I do not have it and I have considerable confidence in myself. I do not know the ins and outs of these things and I do not believe that the average Garda Síochána on a Saturday in a Garda station is going to know either. They deserve better from us than legislation like this. It is often the gardaí who end up carrying the can for sloppily drafted legislation.
Senator Conroy has been helpful in giving a hypothetical case and we are thankful for that. That hypothetical case would seem to relate purely to the area of where a rape or an indecent assault might have occurred. Again, what we are anxious to point out is that the provisions in the Bill refer to the Offences Against the State Act and the Criminal Justice Act, which contain very wide-ranging powers. We know that in the past there have been abuses in relation to suspects, the manner in which they were taken into custody and so on. The point we are trying to make is that the Bill should be precise. The Minister can envisage a hypothetical situation in relation to a specific offence but in the broad area of offences covered by the Bill, it would be extremely difficult to envisage hypothetical situations other than the one Senator Conroy pointed out. We want the Minister to look at the wording again and see whether an appropriate wording can be found to incorporate the requirements of the Garda in relation to crime and dealing with a suspect without going overboard.
Having listened very carefully to the contributions put forward by both sides of the House I am quite satisfied that the word "all" should remain. If we leave out the word "all" and start nominating the number we think would be appropriate at a particular time we would be limiting the Garda. I have great confidence in the professionalism of the serious crimes section of the Garda Síochána who have available forensic facilities to investigate crime. To delete "all or" would take seriously from the section, make it less effective, cause certain ambiguity about this area and leave it open to challenge. In the circumstances I oppose the amendment.
Amendment, by leave, withdrawn.
Government amendment No. 4:
In page 3, between lines 10 and 11, to insert the following subsections:
"(2) Subject to the provisions of subsections (3) to (8) of this section, where a person is in prison, a member of the Garda Síochána may take, or cause to be taken, from that person for the purpose of forensic testing all or any of the samples specified in subsection (1) of this section.
(3) The power conferred by subsection (2) of this section shall only be exercisable —
(a) where the sample to be given is required in connection with an offence other than the offence in respect of which the person is in prison or an offence of which he could be convicted on an indictment alleging that offence, and
(b) where the sample to be taken is required in connection with an investigation in respect of the commission of an offence under the Offences Against the State Act, 1939, or an offence which is for the time being a scheduled offence for the purposes of Part V of that Act or an offence to which section 4 of the Criminal Justice Act, 1984, applies."
Amendment agreed to.
I move amendment No. 5:
In page 3, lines 12 and 13, to delete paragraph (a) and substitute the following:
"(a) A district justice authorises it to be taken, and".
What we are seeking to delete are the words: "a member of the Garda Síochána not below the rank of superintendent authorises it to be taken". We want to replace them with these words "a district justice authorises it to be taken, and". I referred earlier to the fact that the authorisation has to be given by a superintendent. It is my experience, and I would like the Minister to confirm or to deny this, that there is no recorded instance of superintendents refusing to authorise requests from gardaí in relation to the powers conferred on them in the Offence Against the State Act and the Criminal Justice Act for an extension of detention from 24 to 48 hours or from six to 12 hours. If the Minister has information on that I would certainly welcome it.
It is my belief, arising out of contacts with people over many years in these matters, including lawyers, that the inclusion of the word "superintendent" gives the impression of great authority and weight being given to the authorisation but that, in fact, it is a mere formality. Therefore, we are anxious that some real weight — we are operating in the real world — should be given. That is why the amendment seeks to substitute a "district justice" for a "superintendent". Then we would know the reason for the action rather than a matter of opinion or something being done on the nod after a telephone call by the superintendent. There should be substantial reasons. We want to ensure that there is equity.
We are not accepting the amendment. A person may be detained under section 4 of the Criminal Justice Act, 1984 for a period of six hours or, if an extension is authorised by a Garda superintendent, for a maximum of 12 hours. If a bodily sample is required it must be taken during this period. It may be impossible to locate a district justice during such a short period to grant an authorisation. Even if a justice can be located it may take some time and a person may, as a result, have to be detained in custody for longer than would otherwise be necessary, which is obviously undesirable. In any event there is an implication in the amendment that a member of the Garda of superintendent rank cannot be trusted to exercise this function and this I cannot accept.
The implication is not that he cannot be trusted. The implication is that there are no recorded statistics available anywhere that will tell us the circumstances, the number of times the authority given to the superintendent has been exercised and the number of times it has been refused. From my contacts with the legal profession I have been informed that this is a matter that, as I said, goes through on the nod. It is a mere formality and the weight that seems to be attached to the office of the superintendent is only there in appearance and not in reality. We want to ensure that there is some substantial authority and some means to ensure it is not a mere formality. The Minister has said it would be difficult to have district justices available. It should be remembered that at present district justices are more available than they used to be. There are evening and morning sittings of the courts. The period for which somebody can be detained is 12 hours. It is unlikely that a district justice could not be found during a period of time when a person is detained.
I think there is reason to worry always that legislation which appears to have considerable safeguards built into it can become passé and be taken for granted with time, the classic example being the Offences Against the State Act. Less than 20 years ago 90 per cent of those arrested under the Offences Against the State Act were charged with an offence. In recent years there has been a switch in the opposite direction and the figure is about 10 per cent. It is the same Garda officers who are authorising the detentions and their concept of reasonable suspicion which is what is needed in order to detain somebody has elongated itself from a position where nine out of ten of those who were arrested were charged to a position where one out of ten of those arrested is charged.
It is unfortunately on the record in the case of a girl — the rules of the House prevents me from naming her — who was arrested outside a Fine Gael Árd Fheis because she was causing trouble under the Offences Against the State Act on the grounds that the Garda officer who was a superintendent suspected she was a member of an illegal organisation. She subsequently was paid compensation for unlawful arrest. I mention this not because I want to be knocking the gardaí but because I think both sides of a case deserve to be heard. There is a good case for taking an assessment like this away from those who are under considerable pressure to produce results and into the hands of those whose job it is to dispense justice.
It is simply a question of a member of the Garda satisfying a district justice that this is necessary in order to investigate an offence. I do not understand this resistance to doing it. I do not accept the practical problems. Practical problems of this nature can easily be disposed of if people want to: what are important are the principles involved. The principle involved here is that a significant decision to intrude on somebody's bodily integrity, as this would perhaps dictate, is something that needs an external guiding hand to keep it under control.
I am not convinced at all by the cases being put forward by Senators Ryan or Costello. Section 2 (5) states:
(5) An authorisation under subsection (2) (a) of this section may be given orally but if it is given orally, it shall be confirmed in writing as soon as is practicable.
The superintendent has to provide written confirmation that the authorisation was given. It would be in impracticable to insist that a district justice should be contacted. In fact, it may be impossible to locate one within that period of time. I do not think we should create difficulties to make this Bill effective. I have total confidence in a superintendent of the Garda Síochána giving the authorisation. I do not see why there should be any question about the superintendent's position in relation to this legislation. I am not agreeing at all with the amendment. We are satisfied that the Act, which includes superintendents, is quite satisfactory and that, in fact, the requirement for district justices would be totally impractical and could delay the effectiveness of this legislation.
I asked the Minister if he had any statistics in relation to authorisation granted by superintendents in the provisions that are mentioned here — the Offences Against the State Act and the Criminal Justice Act, 1984 — as to how the superintendent exercises the authority given to him in those cases. How can the Minister state he has absolute faith that this will operate properly if he is not able to quote any incidences and where there is no recording or monitoring of the operation of the authority granted by superintendents in comparable areas? What we are talking about here is great powers being given.
The Minister has stated that in section 2 he will not delete the phrase we wish to delete, so that now the great powers extend to the granting of samples in all of those areas that infringe the bodily integrity of an individual, including a child as young as seven years of age. They are great powers and what we want to ensure is that there is proper authority. When I say "proper authority" I do not mean that there is improper authority in relation to superintendents, but that there would be further authority outside of the Garda Síochána themselves, and that that can be granted by a district justice who is an independent, impartial person who would not be giving an opinion but that would be making his judgment on the basis of the material evidence before him.
In relation to the statistics, I do not believe the number of applications or refusals is available, but if such statistics are available we will give them to the Senator. However, from my assessment to date I do not believe they are available. I still believe that the amendment is not practical and that it would make the Bill too cumbersome if we bring in the requirement that a district justice would be required. I am satisfied that the Garda superintendent is the correct person who would sign the order. I have no reason to change my view on that.
May I ask the Minister one further very brief question? We do not want to get involved in a dispute here about the Garda or anything like that but it does nobody any good to pretend they are all perfect. The one fact we do know is that the Garda complaints board is absolutely swamped with work. The Garda say it is criminals who are abusing the law. Many other people believe it is simply a natural process of the function of a democracy that all agencies are imperfect. I would not dream of interpreting what Senator Costello is saying, but it seems to me that we are talking about the same thing. It is necessary always to draft legislation in terms of a balance of rights and powers. We have a habit whenever we extend the provisions of criminal law to say the authority figure is a Garda superintendent. The truth is that as crime has expanded in this country and the numbers of gardaí have not expanded in anything like the same proportion, the senior Garda officers are more and more under pressure. They are having to adjudicate, and will have to adjudicate under section 30 and under section 4 of the Criminal Justice Act. It is very fair to suggest that perhaps we are putting too much responsibility on them in regard to this quasi-judicial assessment of whether a person should go through what could well be an ordeal.
The point needs to be made that it is not in a comfortable cell in the training unit in Mountjoy Prison that a suspect is going to be detained. It could well be in that appalling institute here in Dublin, the Bridewell, which is not fit accommodation for anybody that people would have to go though this ordeal. Therefore, it is important that in that context the decision-making should be taken by somebody who can take a slight step back and simply look at the evidence.
In many parts of the country a district justice covers an area stretching for 100 miles. In that context it is impractical to have a district justice authorise this. I also feel that the checks and balances in the involvement of a superintendent are adequate to ensure that nothing unacceptable takes place.
So does a superintendent.
I am pleased the Minister has stated he will make these statistics available, if there are any. I certainly would welcome them. Can the Minister confirm that in the event that this section remains unchanged there will be some process or procedure established whereby authorisation granted by a superintendent in relation to the powers herein will be recorded and monitored, and there will be statistics available for the future?
That is something we will look at in the regulations in relation to the actual Bill itself. I will be very sympathetically considering it on those terms.
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach
Amendments Nos. 6, 10 and 11 are related; Nos. 13, 14 and 19 are consequential. Amendments Nos. 6, 10, 11, 13, 14 and 19 will be discussed together.
I am not really sure that all of these amendments should be taken together. There are quite a few substantial differences. However, I will seek to address them as best I can.
I move amendment No. 6:
In page 3, lines 14 to 17, to delete paragraph (b) and substitute the following:
"(b) in any case the appropriate consent has been given in writing prior to the taking of the sample.".
This amendment seeks to ensure that the appropriate consent has been given in writing, not just in the limited number of sections that are covered there, but that the consent has been granted in writing in all of the areas. We want to avoid a situation where certain powers are granted to take samples under pressure or under duress, without consent. We would like to see it established that where a sample is sought in any and every case that the appropriate consent has been given in writing prior to the taking of that sample. That would seem a reasonable provision to seek because of the extensive powers that are conferred on the Garda in relation to the sampling that is sought.
I have to say I find the decision to take all these amendments together quite astonishing. I do not understand the connection between consent here and the powers to take samples from persons under 17. What those amendments do is to delete application of the Act to persons under 17.
An Leas-Chathaoirleach
The Chair has ruled.
My experience of the Chair is that it is always amenable to argument in these matters.
An Leas-Chathaoirleach
They will be taken together.
I accept your ruling. I have already recorded my dissatisfaction with the numbers of amendments that have been taken together. Some of those amendments are not directly related to each other. Amendment No. 10, seeks to insert "and" after "any proceedings". Amendment No. 11 seeks to insert "that the person may refuse his consent". Subsection (4) paragraph (c) states that a Garda will seek the consent of the person from whom the sample is required and shall inform the person. He should inform the person that he may refuse his consent and of the inference, obviously, that would arise from that. What we want to have there is, while the sample may be given in any proceedings, the person still has the right to refuse his consent, and to have that inserted in the section.
Amendment No. 13 seeks to delete subsection 7. Subsection (7) is the entire subsection which relates to further penalties and fines that can be imposed on any individual who might obstruct the Garda in seeking those samples. We feel that it is undue pressure on an individual that either they do provide the samples or else, so it is a threat in effect. It would be better legislation if that extra penalty was removed totally from it. In any case there is a further reference to inferences being drawn in relation to whatever offence occurs. This is an example of what you might call double jeopardy where there are two scenarios or two situations where a person could be doubly penalised.
Amendment No. 14 seeks to delete lines 10 to 15, that is paragraphs (b) and (c). What we have here refers to minors under the age of 17 in one case and children or young people under the age of 14 in another case. It allows the situation whereby those minors can give consent. Secondly, the consent of the parent or guardian would also be granted. It does not improve the situation that the consent of a parent or guardian should be added to the consent of a seven, eight, nine, ten or 11 year old under the age of 17. It would still be an assault. Imagine a guardian or a parent giving permission for a sample to be taken from their child and giving permission for what effectively would be, if it was not covered by this legislation, an assault on a young person. The inclusion there of what appears to be consent is not consent. It is merely giving the appearance of further authority for the assault on a young person. Because it relates to minors it would be much better that that section, or those two paragraphs of that particular section, be deleted entirely. We all know that the age of criminal responsibility is seven. It is difficult to envisage a situation whereby that type of infringement on the privacy of a child of that age could be necessary. It would make much better legislation if those two paragraphs were deleted.
Amendment No. 19 seeks to delete paragraph (b). That is connected with the previous amendment in that it states that "make provision for the taking of samples from persons who have not attained the age of 17 years" should be deleted. It would be an integral part of it, so that would be the corollary of what we have said before in subsection (8) and paragraph (b) and (c).
I want to repeat that I think it was an outrageous decision to link those amendments together. Somebody made a mistake and the House is the victim of that mistake.
Part of these amendments have to do with two different questions. I will deal with them in the order that suits my case. We are saying that if I give consent as a parent in writing, a doctor or a member of the Garda Síochána may do certain things to my 13-year-old child, simply because I give consent to it. I do not accept that that permission will necessarily hold up in court. Children are not appendages of their parents. Children have rights in their own case. They have certain rights as persons separate from their parents. It is not right to suggest that simply because a parent, perhaps an indifferent parent, says "Go ahead", and gives the necessary written condition therefore, it is in order to go ahead for a doctor. It would be a great tragedy if the members of the medical profession took samples from a person between the age of 7 and 14 without that person's consent. This is extremely important. In the age group of 7 to 14, we are not saying that the person has to give consent. If the person's parent gives consent, that is sufficient. Appropriate consent means the consent of a parent or guardian of that person.
For some reason or other, somebody somewhere has decided that children are people between 7 and 14 who do not have the right to make decisions themselves. We presume they are old enough to be responsible for crimes, because they are above the age of criminal responsibility. Even though they are above the age of criminal responsibility we take away the rights that other people have to make decisions about themselves. They are capable of being punished for the things they do, but we will not give them the right to take responsibility for the things that the law says may be done to them. We have them caught both ways. We will treat them as responsible citizens as far as their crimes are concerned, but we will not give them the rights of responsible citizens as far as what are essentially assaults on their person are concerned.
I would invite the Minister to justify to this House why anybody should be allowed to do those things to a child between seven and 14 years old just because their parents say so. Parents are not absolute monarchs of their children. They have legal, moral and other rights and obligations to their children that are as clear as my obligations to this State. Parents cannot simply write away those and say: "Right, you do it, I will sign the form". That is not acceptable legislation. It is another example of sloppy drafting in this legislation.
I also want to clear up a very subtle point that one of Senator Costello's amendments addresses. I hope the Minister will listen carefully. Senator Costello has an amendment which suggests that the person must be made aware that he may refuse his consent. That is in the context of section 2 of the Bill. Let us be very clear. Section 3, as the Minister pointed out, says that subsection (1) of section 3 shall not have effect if the Garda officer has not informed the person that he may refuse consent. The Garda officer does not have to inform the person at the time he asks for the sample that he may refuse consent. It is only if the garda has an intention, or wishes to actually pursue the matter under section 3, that the question of being informed of the right to withhold consent arises. It is a perfectly legitimate tactic for a member of the Garda not to tell somebody at the time that he may refuse consent if he thinks that that would influence the person's decision. He has no obligation under the legislation, as it stands, to tell somebody. The obligation only arises in terms of bringing a successful prosecution or using the powers under section 3 to draw an appropriate inference. There is a difference between what section 3 provides and what Senator Costello wants.
My feeling is that in all circumstances a suspect must always be informed before anything is done that he or she may withhold consent. That is, of course, leaving out the suspects between seven and 14 years who apparently do not have a say in the matter at all. All other suspects should be informed before anything is done to them that they have the right to withdraw consent. It is quite clear that the only provision in this legislation to do with consent says, fairly reasonably — because I do not think any Irish court under our Constitution would be too happy otherwise — that if there is going to be an attempt to draw an inference in a prosecution from the refusal of consent then you must have told the person that he can refuse consent. That is not too unreasonable. That is only if you are going to use it in court. If you thought a person was an individual who would be easily persuaded you might be less inclined to tell him. You have no obligation to inform that person that he can withhold consent. Under the section 2 there is no such obligation. The obligation only relates to the subsequent inference that can be drawn from it, and that is different.
I want to compliment Senator Costello because he has done the sort of work that others of us should have done on teasing out the meaning of this Bill. The amendments are consistent. There are two groups of amendments which should have been taken separately. They deserve to be given the fullest consideration. I hope the Minister will give them that consideration. We can come back to the section again, but the question of the right of the citizen to know that he can refuse consent is separate from the consequences of refusing consent. A citizen should be told on every occasion that he can withdraw consent. I think the Minister has an obligation to be very specific about the fact that children from seven to 14 years can have these things done to them — all of them — without their consent. Would he explain to me what threat to the State or to the security of the State or to law and order would justify insisting that that right should be given to the State without the consent of the children involved?
Amendment No. 6 would seem to envisage that consent should be necessary before any type of sample can be taken, even something as simple as a nail clipping or a swab from the hand. I can see no justification for such an approach. The taking of such samples is no more intrusive than the taking of fingerprints which can be taken without consent.
Amendments Nos. 10 and 11 envisage that no samples should be taken without consent. Amendment No. 13 proposes the deletion of section 7, which makes it an offence for a person to obstruct or attempt to obstruct the taking of samples. This, of course, would be logical if the amendment was to be accepted and the taking of any kind of sample made subject to consent.
Amendments No. 14 and 19 propose to delete the provision in relation to parental consent. I presume this is tied in with the two amendments just referred to, although I cannot see that it necessarily follows from them. Certainly, I will take some convincing that parental consent should not be necessary before an intimate sample is taken from the child or young person.
In relation to Sentor Ryan's point, I think parental responsibility is there and is contained within the Bill. A parent or guardian would not lightly give that consent if they have any worries.
They can do it.
They can also refuse to give the consent.
You are saying that parents can give consent to have these things done to their children whether the children agree or not?
That would be the parental responsibility of a parent or guardian. The purpose of these amendments taken together seems to be to alter the Bill fundamentally so that samples, whether intimate or otherwise, may only be taken with consent, and that there should be no penalty or adverse consequences if consent is withheld. This would remove all the teeth from the Bill and make the giving of a sample a purely voluntary exercise. Under such a regime I find it difficult to imagine that any guilty person wishing to conceal his guilt is likely to volunteer a sample. In my view, it would be better to leave matters as they are than to enact a Bill of that nature. I strongly oppose these amendments because they just would not make this Bill effective. If the amendments were agreed to the Bill would not be effective. I am opposed to the amendments.
I am not satisfied with the Minister's answers. Certainly there are substantial points of law involved in the amendments that we have tabled. I do not see why consent should not be sought in relation to all of the matters or why it should be limited to some. Is it not proper that when each of those procedures is proposed, which requires a certain degree of infringement on the bodily integrity of the suspect, that the suspect should be asked to give consent? It is not something that is going to take an hour or a day or require any extra personnel. It would certainly be a safeguard that in all cases the appropriate consent would be sought and given.
Amendment No. 11, seeks to insert "that the person may refuse his consent". How can you draw an inference from somebody refusing his consent unless he is informed in advance and he has to be informed that he is entitled to refuse consent.
In relation to amendment No. 14, certainly Senator Ryan has elaborated very well on the points we seek to cover there. The principle is that no other person, no matter who he is, parent or guardian, can give permission to a Garda officer to interfere with the person of a minor. That could easily, I would imagine, be found to be unconstitutional. Certainly in relation to paragraph (c), in the case of a person who has not attained the age of 14 years there is absolutely no reference whatsoever to the consent of the individual. That surely must be bad law. I have no doubt a constitutional case could be mounted against that section. I see no reason whatsoever why it is put in those terms. That is why we have sought to delete it and to delete the paragraph in amendment No. 19. I certainly would seek quite considerably more clarification from the Minister in relation to those substantial points.
I do not usually get annoyed — Ministers have a job to do — but I am beginning to be a little bit irritated. I want to ask the Minister two questions. Perhaps he can try to answer the questions I ask, not the answers that are written in his brief to other questions that perhaps somebody else thought might be asked. First, why is it that a child of eight can be deemed to be capable of committing an offence and accept the full criminal responsibility for that offence but cannot be given the right to make a decision? It is not the parent who will be blamed for the child's offence — the child will be punished for the offence — but apparently the parent can dispense with the child's right to have a say over his or her own bodily integrity. That, apparently, is what the legislation is suggesting.
Normally in this House I must say, a Leas-Chathaoirligh, when we come up with a serious problem like that the response of a Minister under most circumstances is to say "Right, that is a valid point. I will not concede anything, but I will come back on Report Stage with it". But at this stage we seem to have met with a resolute refusal to consider anything. Let me explain the implications of this.
Section 3 (3) says that subsection (1), where inferences can be drawn, "shall not have effect in relation to an accused unless he has been told in ordinary language by a member of the Garda Síochána when seeking his consent that the sample was required ..." Will the Minister explain to me the connection between subsection (3) of section 3 which refers to "the accused" and the absolute unwillingness to seek the permission or the consent of a child between the age of seven and 14? If a child between the ages of seven and 14 is to be tried and an inference drawn, is it their refusal to give consent, or the parents' refusal to give consent, or is somebody confused — which is what I suspect is the case — that is involved? It is the accused who is referred to in subsection (3) of section 3. It is the accused's parent who is referred to and nowhere in this legislation does it say that a child between seven and 14 has to give their consent. Where in it does it say the Garda have to seek the consent of a child? It is sloppily drafted legislation.
I do not believe it was the intention of this Minister or of the Department of Justice to enforce such appalling affronts to the bodily integrity of children. I think they were not thinking of what they were doing and they forgot what they were doing. They were trying to protect children when, in fact, they have taken away their rights from them, because the real rights of children are the rights they have themselves, not the rights they get via their parents. That is one of the big problems in a lot of Irish legislation, because we have gone too heavily on the rights of parents and too lightly on the rights of children in many areas. I do not think this Minister will be proud of the fact that he is putting through legislation which will give gardaí and doctors and dentists the right to effectively assault young children simply because their parents say it is all right. That is what it amounts to. The forcible taking of swabs, urine samples, blood samples, etc. which is what this legislation will permit, is an assault on the bodily integrity of a child and it is a shameful provision.
Children and young people can commit serious offences and we are aware of that. It is right that it should be possible to obtain a sample from them. However, cognisance must also be taken of their age and vulnerability. This is done by providing for parental consent. By any standards what we are doing is reasonable. Senator Ryan mentioned samples. Samples for young persons between 14 and 17 years of age can only be taken with both parental consent and the consent of the young person. Both are required between 14 and 17 years of age. It is only where the person is under 14 years of age that a sample can be taken with parental consent only. This is because it is natural to expect a parent of a child of this age to be best fitted to act in their best interests.
We are taking reasonable precautions here. A parent is not going to lightly give permission to anyone to take those samples in the circumstances under the age of 14. It is an excellent safeguard in the Bill that the decision is taken away from a person of that young age and that it allows a parent or guardian to make the decision on their behalf. As parents, they will not give that permission lightly. Refusal, of course, would not in any way prejudice the young person involved. This should be quite clear; between the ages of 14 and 17 the young persons themselves have to give permission as well as their parents. There are safeguards in relation to their position as well.
I think the points being put forward are raising difficulties which are not really there at all. I think that in regard to those under 14 years of age, a parent or guardian is somebody responsible and should be responsible for making the decision. I think it is reasonable that those powers would be there. Would the Senator prefer that the young persons themselves would have the right to make the decision without the rights of the parents to intervene in this area? I think the parent is the person who has the judgment in this area and I would have confidence in their judgment in relation to allowing the samples to be taken by the authorities.
Why is it that there is a distinction made between children under 14 and children over 14 years of age? In the case of a child between 14 and 17, or a young person, it needs both person's consent and the parents' consent, that is two people who have to be consulted. In the case of a child under 14 years of age, they do not have to be consulted at all. I am, unfortunately, aware of the fact that there is a considerable number of children in this country whose parents do not look after them. We have children who are put into care, for instance. We have children in many cases whose parents are extremely negligent. It is very clear. There is nothing in this Bill which says that the parent of a child under 14 has to have it explained to them in clear language what they are doing, because that only applies to the accused under section 3 (3). The parent of a child who is being asked to give consent to what is, in my view, effectively an assault on the child and in my view no parent has the right to give that consent. No parent has the right to authorise another person to do those things to their child.
The second thing is that in seeking that consent the Garda are under no obligation either to indicate to the parent that they can refuse consent or to indicate in the words of subsection (3) that they tell in ordinary language, when seeking this consent, that the sample was required for the purpose of forensic testing and that their consent was necessary. That only applies to the accused; it does not apply to the parent. What form the Garda choose to use when they are asking the parent for consent is a matter entirely for the Garda. They can make it a one word telephone call or one line saying "Will you sign this, please?" It simple means we can do a few tests on your child." That is all they have to tell them, because they do not have to tell the child anything and there is no provision under section 3 (3) for any explanation to the parent. It is the accused who must get the explanation.
As I have said over and over again, this Bill is appallingly sloppily drafted. I do not want to believe it was the intention of either the Minister or the Department of Justice that ten-year-old children should be physically assaulted by members of the Garda Síochána simply because their parents gave permission. I do not want the Garda to have to do that and I do not believe the Garda want to have to do that. Yet, we are saying that they have the right and the power under law to do it simply because the parents say it is all right. I do not believe parents have those rights and I do not think we should even write it into legislation. The Minister should at least insert in paragraph (c) the same provision that applies to paragraph (b) that both the consent of the parent and the consent of the child must be sought. Otherwise, you are going to traumatise small children inside Garda stations in a most alarming and frightening way. I hope it is not anybody's intention to do this. I intend that, if the Minister insists on going through with this, I am going to make the loudest possible fuss about it. We are giving powers to the Garda and to members of the medical profession simply because indifferent parents say so, with no protections and no guarantees that the parents have to be properly informed. If the Minister wants it like that, then let him have it like that. It is entirely inappropriate and wrong and I do not think it is what is intended. The Minister should bring it back to the senior Minister involved and look at the whole thing again.
I support entirely the remarks made by Senator Ryan. This is the nub of this amendment in relation to a young person under the age of 17 and a child under the age of 14 years. The situation is quite categoric: that no parent or guardian has the right to give consent to another person to interfere with the bodily integrity of a child or young person under his or her care. That is a fact under the law. I would see that that operates in both sections, in relation to a person aged 14 to 17 and under 14. Even if an amendment was included to have the consent of the person as well as the parents or guardian, I would still find that section unsatisfactory. First, we are talking about very young people giving the consent; secondly, we are talking about parents or guardians giving consent. If we look at it, how can a parent or guardian, on their own, without reference to the child, possibly give consent for that interference with bodily integrity? In conjunction with the child, what does that add to it? What is being added to it is the parent and the guardian agreeing that there are grounds for an infringement of the bodily integrity of another person.
I agree with the Minister in what he has said, that the purpose could well have been to protect the child, but that is not the result of this drafting. The purpose would seem to be, as the Minister has described it, that a parent or guardian would take due cognisance and would be very loath to give consent, and so on. But, in effect, that does not get round the other problem that is created, because by giving consent the parent and guardian are authorising the assault. Under this section there is no way out unless the Minister is prepared to accept the amendment and redraft it.
There are major constitutional implications involved. It is not sufficient for the Minister to say he is satisfied that there are protections for the child. The intention might have been to get protections for the child but the effect of the provision is to create a major problem in relation to how the child is going to be interfered with by the powers that are conferred under section 2. We have been concentrating on this section because it is crucial. It brings the powers from the adult world to the world of the child.
I might mention in passing, in relation to subsection (8) (a), I still do now know why the age of 17 is the age that is referred to. Why can we not standardise that with the age of 18? Eighteen is the age at which we are given, in law, the right to vote and the right to drink. We are minors until that time. Why should we have this strange 17 whereby there are certain provisions of the criminal law applied when we get full citizenship at the age of 18? What is the reason for not standardising those two ages? Surely, the Minister should be thinking in terms of the new Children Bill and that there should be standardisation in relation to the ages. Rather than between 14 and 17, it should be between 14 and 18. That would standardise the situation in relation to rights that are conferred on our citizens.
The adverse inference provisions cannot apply to the case of an under 14. It can apply in the case of persons between 14 and 17 only. They themselves refuse consent.
I feel the word "assault" is very unfair. I think it is being used emotively to create the imagery that a person under 14 years of age, if the parents consent for samples to be taken from him or her by a registered medical doctor or dentist as the case may be, that is an assault on that young person. That is very emotive terminology, Senator. It is being used to enhance the case the Senator is making, but I am not impressed by it——
The Minister should be.
Senator Ryan mentioned someone in an institution. They would have a guardian responsible for them. If there is a medical procedure involved, which happens regularly, consent is given as well for those procedures to be carried out. In regard to the taking of samples from a young person by a registered medical doctor, is the Senator implying that the registered medical doctor is going to assault that young person? That is a very wrong inference to take from the Bill. It is very unfair. We are including in this Bill that the refusal of a parent or guardian will not be brought forward as evidence against the young person involved. Therefore, you have safeguards which do not apply to a person between 14 and 17.
The Senator is raising issues and exaggerating the problems that would arise. Young people can commit serious offences. A person under 14 years of age can commit serious assaults. In the situation where a parent or guardian would give consent for the taking of samples, I feel they will only do so on the basis that it would be in the interests of the child. I feel the concerns the Senator is expressing are genuinely unfounded. It is unfair to the medical profession, who carry out procedures in hospitals as intimate as the samples that are being taken and more intimate than the samples that would be taken in this type of case.
As far as the ages of 14 and 17 are concerned I think 17 a reasonable age to allow for someone to make a decision. The question of extending it to 18 and standardising the age at which one is regarded an adult is something that could be considered. The Children Bill is going to a Special Committee of the Lower House where all those aspects, which I know will be of great concern to this House, will be considered.
We are satisfied about the safeguards in this Bill. Speaking as a parent, I consider that the consent of the parent or guardian is in the best interests of the children involved. It will not be given lightly, or at all, if the parent or guardian feels that it would not be appropriate.
The Minister and, indeed, the law and order lobby, cannot have it both ways, because one of the favourite phrases of the law and order lobby is that it is the parent's fault. There is this scenario, and there is a certain truth in it, of an increasing number of neglectful parents who are not willing or able to take responsibility for their children, to look after their children and to mind their children. We are not talking about the large body of children. I can assure the Minister that if any child of mine ever came into a situation like this I would be profoundly unwilling to give consent. It does not even say, for instance, that the parent has the right to talk to the child before this consent is given. It does not even say that the parent must consult the child. It does not say anything. The parent does not have to be even in the Garda station. The parent could be visited at home, could be visited in a pub or anywhere.
It does not say anything about the child at all. The child is a non-person as far as this legislation is concerned. The child has no rights and it is ludricrous to compare this consent with the consent to an operation. Apart from anything else, hospitals increasingly are orientated to eliminate even the slightly threatening nature that they have for small children. They are more and more aware of the fact that a hospital can be a threatening place, and the fact that what is involved here is life giving health. We are talking about the investigation of a criminal offence by hard-pressed gardaí with a child in custody in a Garda station on, perhaps, a night when there is considerable pressure on the Garda when they know they need the parent's consent.
With respect, I really think that the Minister is defending the indefensible, and he is simply leaving himself wide open. Why not say with the consent of the child? What is wrong with that? The child is deemed to be capable of committing a criminal offence. Under our law the child would not be in custody if he or she were not deemed to be capable of committing a criminal offence. The whole point of having a child under 14 is that we believe the child is capable and responsible of committing a criminal offence. We are believing because we believe this nonsense of a seven year old age of criminal responsibility, that the child is capable of committing a criminal offence. It has the capacity, the freedom and the knowledge to do that and to be culpable for it. But we are then saying that the child is not capable of taking a free decision to give consent or to withhold consent. Or is it, as I suspect — and I am beginning to get malicious at this stage because of the Minister's unwillingness to listen to reason — is it that people are afraid that in every case a child will refuse consent because it would be so scared in a Garda station, or what is it?
It is absolutely unjustifiable. At least in the Criminal Justice Act we were given assurances in regard to questioning of children that those children who were detained under the Criminal Justice Act would not be questioned, other than in very exceptional circumstances, in the presence of their parents. I do not know how well that works; I have my suspicions about it. Is there a crusade going on against our children because half the country thinks that half the children are running wild, or what is it? I can tell the Minister that he has the numbers in this House to push this through, but I can tell him this is only the beginning; and the reason it is only the beginning is because the Minister cannot give us a single convincing reason for excluding the child's consent from this. He is effectively saying that parents can give consent to other people to do things to their children.
It is an absolute red herring for the Minister to shoot off and say we are casting aspersions on the medical profession. Of course, the vast majority of doctors will not participate in this. But the Minister would want to remember who it was that devised various tactics that were used in Northern Ireland not so long ago against suspects. It was not strangers. There were members of the medical profession involved in that. Say the member of the medical profession is simply called by a garda and told "Right, we need these things". Do not forget that the Minister insisted on all of these samples — blood, public hair, urine, saliva, hair, nail, any material found under a nail, the whole list of them. The Minister is insisting that the simple consent of a parent — given at a distance, without being properly informed of what is going on, because there is no obligation to properly inform, to inform that they can withhold consent — can allow the garda, or a doctor or a dentist to do all those things to a child, even if the child is petrified, even if the child is frightened out of his wits.
I am not interested in the argument as to whether Garda will do it or not, because I hope they would not. What I am interested in is the fundamental principle that we are giving that power to the Garda and to the medical profession and we are giving it to them irrespective of how the child feels, irrespective of how frightened the child is, irrespective of how terrified the child is, or indeed irrespective of how young the child is, because a child needs only to be seven years and one day to be covered by the provisions of this offence — seven years old.
I have no idea how anybody with any sort of a feeling for children could defend that piece of legislation, because the children who will suffer are the children of indifferent parents — and they do exist and they are an increasing proportion of our society for whatever reason. What we are simply saying is that those indifferent parents can, on a sheet of paper, sign away the rights of their children and then a whole lot of things can be done to their children, irrespective of how the children feel. For the last time, will the Minister at least show that he has a heart as well as a head? As well as officials sitting behind him, as well as having a senior Minister who, perhaps, is a bit intimidating, he has his own feelings and his own convictions. Indeed, he was a Minister responsible in the previous Government for children's legislation. Can he please remember that the whole object and thrust of legislation dealing with children is to protect the child, because children are children? We must remember that. We are not talking about hardened criminals; we are talking about seven, eight, nine and ten year olds. The Minister apparently is happy with the idea that they can have all these done to them however they feel, however frightened they are, however scared they are, simply because the parent signs a consent form. That is an outrageous proposal and it is one that should be resisted.
Written consent must be given by the parent or guardian and this is a major protection. This is to protect the young person, not to have an adverse effect on the young person who is being charged. The adverse inference provision cannot apply in the case of under 14s; it can apply in the cases between 14 and 17. The fears that the Senator is expressing are unfounded. Senator, we are not agreeing to that.
Is amendment No. 6 withdrawn?
I am sorry. I have not finished.
Sitting suspended at 6 p.m. and resumed at 6.15 p.m.
I do not find the Minister's remarks in relation to assault acceptable. There is provision for taking samples of blood, pubic hair, urine, saliva, hair other than pubic hair, a nail, any material found under a nail and a swab from any part of the body other than a body orifice or a genital region, so there is an infringement on the bodily integrity of a person. It is no help to say that it is not an assault. It constitutes an assault. In this case we are talking about a very young person, as young as seven years. The Minister should be aware of and be concerned about that.
In relation to paragraphs (b) and (c) the Minister has referred to irresponsible youth, but there are also irresponsible parents. We are talking about consent. If there is consent from the parent in relation to paragraph (c), there is no provision for consent from the child. If the Minister is prepared to put forward the concept of irresponsible youth, we can talk also about the concept of an irresponsible parent.
The Minister is missing the point here in that even if a parent or guardian gives consent — I will acknowledge that in the age group between 14 and 18 it combines the two, the person and the parent or guardian — it is not solving the problem. The consent given by a parent or guardian is, to my mind, compounding the problem because I do not believe that it is proper that there is a right for a parent to give consent to the infringement of the bodily integrity of one of his or her children. The legal and constitutional implications of that have to be faced. The Minister has not properly addressed that.
The Minister has acknowledged that inferences would not be drawn, but at the same time there is no provision for parents or guardians to be informed that no inferences would be drawn. They would still regard it as a threatening matter. There is no provision in the Bill in relation to it and I ask the Minister to address that matter.
I gladly accept his remarks in relation to subsection (8) (a), that he would like to see a standard age of 18 introduced because that in law is the age at which young people are given their rights to citizenship, their acceptance as adults, the right to vote and so on. It would be proper for that to be incorporated into criminal law as it is the standard age in other areas.
Nobody is saying that the Minister is not trying to protect children and nobody is doubting his bonafides in this. I believe that the Bill has been drafted with the intention of protecting children but the effect of it will be the opposite. It leaves the position open to abuse. The problem is that there has not been satisfactory drafting of this particular section.
We are concerned here with protecting the child and young people from very serious powers in relation to their bodily integrity. We acknowledge that there will be provisions in the new 1988 Children Bill that will raise the age of criminal responsibility, but we have no idea when that Bill will be passed. At it stands, there are two categories of young people who are very vulnerable and this Bill opens up the way towards increasing their vulnerability. I am not satisfied that the Minister has answered the criticisms that have been directed towards it. I would have liked him to take on board some of these amendments, particularly this safeguard amendment, and while he might not agree with all the details in the amendment he could accept the principle and come back to us with a change in the drafting of this section that would do what we are seeking to do here.
I would like to sympathise greatly with the underlying emotions and, indeed, many of the sentiments which have been expressed by the previous two speakers, Senator Ryan and Senator Costello, particularly the reasoned arguments which Senator Costello is putting forward. I agree that the Minister is very conscious of the need to protect children and of the great difficulties of expressing that satisfactorily in legislation. I have great sympathy with that view. I also have sympathy with the views expressed by Senator Ryan with great emotion. This is an area we will be increasingly concerned with, one which is addressed in the Government's Children Bill which, hopefully, will come before us shortly. He raises very valid points in relation to children but perhaps his emotions carried him away a bit.
I am very proud to be a member of the medical profession and by and large I believe we are doing a good job. I am sure it is not always perfect but I take exception to the imputations which Senator Ryan made with regard to the medical profession in this country. I am sure they were made just in the emotion of the moment and because of his genuine concern for children.
We have to take the realities as they are at present and realise that this is a Criminal Justice (Forensic Evidence) Bill and regrettable though it may be, there is a need for such a Bill. Unfortunately, there are certain facts, and there are ample statistics to bear this out, which show that the age of violent, severe crime is not going downwards. There are, indeed, many youngsters, for whatever reasons and however sympathetic we may feel towards them, who are engaged in some pretty horrific crimes. I agree that a child of seven or eight may not perhaps be able to give a degree of informed consent and, indeed, I would turn that slightly around. That is why it is so essential that there be consent from the proper authority, the parent or other person responsible. It is a very difficult situation.
The Minister has made a very good effort to attempt to express, on the one hand, the necessity to be able to obtain the forensic evidence and, on the other hand, to see that children are protected and that their parents must give that informed consent. I certainly have a great deal of sympathy with the emotions which Senator Ryan is expressing in that we must consider children as individuals. We are trying to do that in this Bill.
I agree very much with what my two colleagues have been saying here. Before I get into the philosophical argument about it, I would like to understand the practicalities, being a pragmatist at heart. Before I address those particular points I want to get a number of points clarified. I want to bring it into the context of the real world as well as to take it out of the confines of a philosophical debate in the Seanad.
Very often the people who are being dealt with under our legislation are down and out and indeed, as Senator Conroy has just said, may well be very young people. I want to ask two particular questions about them. How does the Minister propose to get the written consent of an illiterate down and out? He or she cannot write and cannot articulate very well. I want to know precisely how that would be done on his or her arrest. If the Leas-Chathaoirleach wandered around O'Connell Street he would find young people, well under the 14 years of age mentioned here, who are involved in every kind of activity from prostitution to drug addiction. They have been rejected by society. Many of them get into trouble, as Senator Conroy has so clearly outlined.
Under the terms of the Bill, in order for this proposed legislation to be operable it would be necessary, in the case of young people like those who are perceived to be in trouble, to take, as part of the material evidence, a sample of the six various things referred to on this item, blood, pubic hair, urine, saliva, swab or dental impression, etc. Most of these people have been abandoned and do not know where their parents are. How does the Minister propose to get the consent of the parents or guardians of people who have no idea where their families are? They are under 14. I am not presenting anything that is totally out of range. This is within half a mile of us. Just down the road, off O'Connell Street, you will find plenty of examples. I look forward to the Minister explaining that to me, before I get involved in the philosophical argument of my problems with the section.
May I simply say in response to Senator Conroy that I did not intend any slur on the medical profession in general? Since I am married to a doctor I have to be particularly sensitive on the issue.
I accept that.
Progress reported; Committee to sit again.