I would like to say in reference to what Senator Ryan has just said that this places this Bill in a very important light, but I do not wish to repeat myself. I just want to underline the importance of being particularly sensitive to these matters in the light of the tragic occurrence of yesterday. There is only one final point I wish to make, that is to comment on something the Minister said. He spoke about the purpose of the Bill and the purpose of the amendments. I accept, of course, that the purpose of the amendments may well be a good one and one whose intention is beneficial to the community, but that does not mean that the existence of this purpose or intent on the part of those drafting the Bill is not capable of being abused. It is not just sufficient to say that the purpose of the amendment is such and such. Here, particularly in a revising Chamber, we have to scrutinise the Bill in order to excise from it the possibility of abuse, I believe that is what we are trying to do here this afternoon.
Criminal Justice (Forensic Evidence) Bill, 1989: Committee Stage (Resumed).
I would like to commence the debate by suggesting that we can deal with this point of view on Report Stage. I accept that the amendments came late. There was a difficulty in the Attorney General's office in getting them out. The fact is that the points that are being put forward here by Senators can be considered by the Department of Justice in advance of Report Stage of this Bill. I am not giving any encouragement to the view that there may be any changes. Nevertheless the views put forward here by the Senators will be considered by the Department of Justice and the Minister in advance of Report Stage.
I feel, generally, the safeguards are in the Bill. I am quite satisfied about that and about the amendments and I suggest we could move on with this Bill because we cannot add anything further. The Senators have put their points of view, their concerns and anxieties, which they have expressed sincerely, on the record of this House. Those concerns will be put before the Department and the Minister in advance of Report Stage.
I have a difficulty on which I hope the Chair can help me. The only matters which can come up on Report Stage are matters which have been raised but not disposed of on Committee Stage. Does that mean that if this amendment is passed as at present worded we have effectively disposed of the matter raised, in which case it cannot be discussed on Report Stage, or do we need to have this amendment not moved by the Minister on this occasion? If the amendment is moved, my understanding of Standing Orders is that it disposes of this matter, in which case no amendments on Report Stage are possible. It seems if we are going to do what the Minister wants us to do, the reasonable thing is not to push the amendment at this stage and to leave it until Report Stage.
I feel the Senators would be entitled to put forward amendments on Report Stage if they wish and that could be considered by the Department, the Government and the Minister at the time.
That is different from what the Minister said a second ago. Furthermore, if having objected to this amendment it is now passed by the House it appears that we have particularly if the House disposes of the matter, a position where the amendment is passed, which means our objections have been disposed of. I would like clarification from you. I do not want to put the Leas Chathaoirleach on a spot so soon in his career but I need clarification. I understand if the matter is disposed of today by the amendments being passed we cannot pursue amendments to it because all the matters will have been settled.
We have here before us a Committee Stage of a Bill, where a substantial portion of the Members of this House have not been present on Second Stage. We have in a sense come in at the deep end and we are discussing amendments at this time. If the statement made by the Minister is accepted by the Leas-Chathaoirleach, namely, that amendments can be introduced on Report Stage, it would be very suitable for those of us who are new to the House — it was the previous Seanad who debated this initially and we did not have the benefit of teasing out the issues, the technology involved and so on that was presented at that time.
In relation to the 1908 Children Act, I was not referring specifically to under 17 years, although I have concern there as well, but to those under 14 years and to the provision made for imprisonment under that Act and whether, because of the powers granted here in relation to the taking of samples, the forceful taking of samples in certain cases, and the inferences that can be drawn, the full force of this legislation will apply to minors between the ages of 7 and 14. That has not been addressed by the Minister.
The Minister has agreed to take the Bill back to the Department and the Minister for Justice to have a look at it again. We have heard the views which have been expressed by all those sincere people who are genuinely interested and concerned with it and we should now move on.
That is precisely the point. Is the Minister not moving the amendment today, because if he is not we are wasting our time and we should move on. He has been extremely helpful in that case and we can move on. If he is insisting upon us taking a decision to insert this amendment in the Bill then, as far as I am concerned, under Standing Orders the matter is disposed of. I do not know how we can come back to it on Report Stage.
The situation in reply to Senator Costello is that it applies to minors with the same parental safeguards as in the Bill. The safeguards are there with parental supervision, etc. and agreement I want. The undertaking I am giving is that the Minister will be made aware of the points of view expressed by the Senators here and on Report Stage the Senators may put forward amendments and the Minister would also be entitled to put forward amendments if he wishes. I am not raising any hopes in this regard because we have assessed this very carefully. I am totally satisfied with the safeguards in this Bill, I am totally satisfied with the amendments which we have put forward which will strengthen this Bill and I am quite satisfied that this matter should be put before the House.
The Minister is being very honest and open with us. He is clearly saying that there will be a token gesture and no more. There is not a hope in — I do not know whether you can mention certain places within these august precincts——
I would not agree with that.
That is what I took clearly out of what the Minister said. Perhaps I am a little bit too cynical.
My view is that I could not see any change in these amendments but if Senators can put forward suitable amendments to be considered by the Government and the Minister I would certainly not rule that out.
I thank the Minister. I would like to make a point. I am interested in the Minister's response to Senator Costello on the question of the rights of children and young people, as covered by certain sections here. The Minister has brought another concern to my mind. It seems to me he really does not understand the difference between being in prison and not being in prison. I hope the Minister has never had the experience of being in prison.
Nor the Senator.
Nor myself. I will draw a discreet veil. There is room for concern, for example, because the Minister spoke about the parental safeguards, the presence of parents and so on. I am sure he knows perfectly well that in certain of the more deprived sections of the community — in particular I will come back to thinking of the travellers and so on — economically and geographically it is simply not possible very often for them to be present. In the most vulnerable sections of the community there is certainly as far as I am concerned, a considerable worry that frightened children may be left on their own, that although they have a right to have parents present they may not have them present. The Minister has inadvertently illustrated the concern of people like myself that there is once again here a form of class justice.
I ask the Minister to refresh my memory on a very basic point. My recollection is that it is possible for somebody to withhold consent but the withholding of consent may be construed in a certain fashion in court. Will the Minister refresh my memory on this point and tell me if I am correct, that there is the possibility of withholding consent but a certain constriction may be placed by the court on that refusal?
An intimate sample cannot be taken from a young person under 17 years of age unless his parents or guardian consents whether that person is in prison or not. That is a provision of the Bill. If the parent or guardian refuses to allow the sample to be taken, this cannot be used against the young person.
They can consent by post presumably?
If they cannot be contacted that is another difficulty. They have to give consent. That is simply it.
"If they cannot be contacted that is another difficulty". What does that mean?
The provision in the legislation is that a parent or guardian has to give consent — that is in the Bill — for a person in custody or a person outside of the prison system. Again, I put emphasis on those not in prison. A majority of the population are not in prison and this Bill applies to them as well. Let us not lose sight of that. This is very important legislation. It is vitally important that we have every possible opportunity for the Garda Síochána to use the Bill as it is set out for those outside prison of those inside prison.
The Minister said a few minutes ago that the provisions of this Bill apply to minders. He said earlier that the provisions of the 1908 Act do not apply so I am puzzled as to what precisely is the connection between the provisions of this Bill and the provisions of the 1908 Children Act. As I see it, the provisions of this Bill can result in children under the age of 14 going to prison and there is provision for that in the 1908 Children Act. Is it envisaged that the powers given here could lead to a child between seven and 14 years going to prison? I still have not got an answer from the Minister on that and I certainly would like one.
In relation to the other matter the Minister has just raised, we have an amendment in relation to intimate samples being taken with or without the permission of a parent or guardian. Even so, they are intimate samples taken from a child. If a parent or guardian grants that, he can be granting an assault on a child. That is a serious matter. The fact that permission is given by a parent or guardian does not affect the fact that it is still an assault.
The provisions do not affect the 1908 Children Bill. That is my advice on the situation.
There are three precise questions I want to ask the Minister. The first is, can he confirm he has advice from the best sources that the phrase "the offence in respect of which the person is in prison" covers people who are on remand? I cannot understand how a person can be in prison for an offence which it has not been proved he has committed. At the very most he is in prison on suspicion of the offence for which he is suspected. I thought those people would be on remand not because of an offence but for two other reasons, that they may not turn up or they may intimidate witnesses. You are not remanded because of the offence, you are remanded because of two other reasons. That is the first question. I would like to get specific, clear information from the Minister that the phrase there means what he thinks it means because I am not at all convinced.
The second question is, will the Minister not concede that as the Bill stands there is no obligation on the authorities to inform a person that he may refuse consent? The Labour Party to their great credit have an amendment to that effect but there is no obligation to inform a person that he may refuse consent. In an authoritarian system where people are in the position, as the Guildford Four have so graphically described, of expecting to be given orders about everything they do and everything they should do, how in heaven's name are people going to know they may refuse consent if they are not so informed? I need specific clarification on that point.
Now I understand why the Minister did not address the question the Senator and I raised.
I call on the Minister and when he has spoken I would like to put the question.
The reply to the question put by Senator Ryan is, yes. The sample is not taken because they are in remand. It could be taken if they were free. This is the kernel of this Bill.
There is such an obligation in section 3 of the Bill in relation to the two questions put by Senator Ryan. I will say again that I am satisfied with the amendments which we have put forward and I recommend them to the House.
What is the Minister talking about in section 3?
There is such an obligation in section 3. That is the reply to the Senator's second question.
Could the Minister tell me where in section 3 there is an obligation to inform a suspect that he can withhold consent?
May I point out that we are not looking for greater rights for those in prison as opposed to those outside. We are simply looking for greater sensitivity to those pre-existing rights.
What really is required there is to make a distinction. Section 4 (3) (a) is quite confusing on what precisely is the situation in relation to a remand prisoner, and somebody who has been convicted. The Minister has been asked to clarify the further provisions in the Bill in relation to consent, about which there is no reference in this section whatsoever. There is confusion as to what precisely is the offence mentioned in the first part of paragraph (a) and what is the provision — there does not seem to be one — in relation to a prisoner being entitled to be told about consent.
In relation to the point put by Senator Ryan, subsection (1) of the section should not have any effect in relation to an accused unless he has been told in ordinary language by a member of the Garda Síochána while seeking his consent that the sample was required for the purpose of forensic testing, that his consent was necessary and then if his consent was not given the effect of refusal by him, as covered in the section. It is quite clear the person would be informed exactly of his rights.
That is precisely why I asked the question of the Minister. I regret we have had this little excursion into fantasy because his answer is perfectly clear and satisfies me on that point.
I thank the Senator.
Acting Chairman
I would like to point out to the House that under discussion here at present is amendment 1 on section 1 of the Bill——
And amendment Nos. 4 and 8.
Acting Chairman
Amendments Nos. 4 and 8 are related but this specific decision if I put the question that the amendment be agreed to relates simply to amendment No. 1.
With respect, if amendment No. 1 is agreed then there will be no further discussion under our normal practices on amendment Nos. 4 and 8, so, with all due respects to the Chair we have to talk about them all.
Acting Chairman
Of course it is fitting to discuss all three, I am merely pointing out that if I put the question it would relate simply to amendment No. 1.
It then precludes further discussion of amendments Nos. 4 and 8. That is why we are resisting it.
Acting Chairman
That is correct.
We are not satisfied with the explanation that has been given. The Minister has satisfied me in relation to the provisions of the amendments in relation to the Children Act. He has given a categorical statement that they do not apply but in relation to section 4 (3) (a) there certainly is a grave dissatisfaction with the manner in which that is phrased. It is unacceptable as it stands.
I found the Minister's explanation unsatisfactory. I cannot understand why he simply did not postpone a decision on this, refer the matter back and if he wants, come back, having clarified the questions raised, on Report Stage and since we can only speak once on Report Stage he will have it through very quickly. It is not, in my view, the way to do it, I will be seeking the best advice I can get on the phrase "the events in respect of which the person is in prison" because I am not satisfied that the advice that I would get would conform with that of the Minister.
Tá
- Bennett, Olga.
- Byrne, Hugh.
- Cassidy, Donie.
- Conroy, Richard.
- Dardis, John.
- Fallon, Sean.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Foley, Denis.
- Hanafin, Des.
- Honan, Tras.
- Hussey, Thomas.
- Keogh, Helen.
- Kiely, Dan.
- Kiely, Rory.
- Lanigan, Michael.
- Lydon, Don.
- McGowan, Paddy.
- McKenna, Tony.
- Mullooly, Brian.
- O'Brien, Francis.
- Ó Cuív, Éamon.
- O'Keeffe, Batt.
- Ryan, Eoin David.
- Wright, G.V.
Níl
- Costello, Joe.
- Murphy, John A.
- Norris, David.
- O'Toole, Joe.
- Ross, Shane P. N.
- Ryan, Brendan.
- Ryan, John.
- Upton, Pat.