Amendments Nos. 6 10, 11, 13, 14 and 19 will be discussed together. All of them have been discussed at length already.
Criminal Justice (Forensic Evidence) Bill, 1989: Committee Stage (Resumed).
Debate resumed on 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."
—(Senator Costello.)
An Leas-Chathaoirleach
I have already registered my dissatisfaction that those amendments were lumped together. There is quite a distinction between some of them — Nos. 14 and 19 in particular — and the rest of the amendments. At the outset may I ask the Minister if he has the information which was promised on the last day we were discussing this matter, which is in relation to authorisations granted by superintendents under the terms of the Offences Against the State Act and the Criminal Justice Act, 1984, as to the exercise of their powers to extend periods of detention from 24 to 48 hours in the one case and from six to 12 hours in the other case; in other words, the extent of the authorisation granted by superintendents to the arresting gardaí. Perhaps the Minister would indicate that at the outset.
To answer that particular query, inquiries have been made of the Garda authorities. Those statistics are not retained. That information would not be available.
An Leas-Chathaoirleach
Is amendment No. 6 withdrawn?
May I say in reply to the Minister, I thought as much. Briefly, I just want to go over a couple of items on those amendments. Amendment No. 6 reads:
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 provision gives the Garda power to require a person to submit to the taking of a sample of hair or nails, or the taking of swabs, footprints, body prints. Obstruction to this testing is an offence; the person has no right to refuse consent. That is an extraordinary power in that it authorises direct instrusion into bodily integrity without consent and we must recognise it for what it is. What we are saying there is that in all cases the appropriate consent should be given in writing. That is the least we can expect, considering the nature of the bodily infringement that is involved. The compulsory powers are very wide indeed. Another item is that consent in any case should be informed consent and would not be real consent without the presence of a person's medical and legal advisers. Therefore, provision should be made for such persons to be present. Essentially, the matter we are seeking to introduce is that consent in all cases, because of the extreme nature of the matter, bodily infringement, should be given in writing.
In relation to amendment No. 10, we have covered that sufficiently already. I do not intend to dwell on it further. Likewise, with amendment No. 11, which is part of the same amendment.
Amendment No. 13 deals with the question of obstruction. The concept of obstruction of the Garda Síochána is extremely vague. What really amounts to obstruction? Could exercising one's right to silence amount to obstruction under this provision? Normally, the law only prohibits specific acts which leaves people free to arrange their affairs as they wish. Vague concepts, such as obstruction, tend to intimidate people into not exercising their rights, so there is that element of intimidation introduced with this separate penalty for obstruction. The offensive obstruction is not at all necessary since assault on a garda in the course of a body search would be an offence anyway. Would the Minister address himself to what constitutes obstruction in this section?
Amendment No. 14 relates to much of the debate and controversy that took place during the last day's discussion. This is an area which I felt should be dealt with separately, because it concerns minors. That is section 2, subsection (8) (b) or (c). The consent of a person under the age of 18 is not real consent. A person under 18 cannot, for instance, in law make a contract unless the contract is for the benefit of that person. There is a grave constitutional question as to whether a minor's constitutional right to bodily integrity, as laid down under Article 40.3 of the Constitution, can be consented away by a parent or guardian except for necessary medical treatment. There is a major question of constitutionality in relation to this section.
Furthermore, the concept of guardian is also a dangerous one in this context, since the guardian may be a State body or corporate body, as we discussed in the Children Bill. The whole question that was raised in terms of constitutionality. It referred to consent on behalf of the child, for example, where the child is in care, is imprisoned or in an institution, is mentally ill, and so forth.
Has the Minister considered the constitutional basis of this section particularly since, as I have observed since the last day, that this section is taken verbatim from the British Act of 1984 — the Police and Criminal Evidence Act, 1984? Of course, a carbon copy of the provisions which apply in English law does not take cognisance of our constitutional situation. I hold very strongly that there are severe constitutional implications for that Act. As I mentioned the last day, that matter should be properly dealt with under the new 1988 Children Bill that is being prepared at present. We are, after such a long period of time, at last getting round to reviewing and updating that 80-year-old Act. It is quite perverse at this time when we are talking about raising the age of criminal responsibility to have a provision whereby a child, from the age of seven to the age of 14, is now to be subjected to these very severe bodily infringements that are included in this Bill under the Offences Against the State Act and under the provisions of the Criminal Justice Act. It would be much better to exclude those sections entirely and to deal with them in the new Children Bill that is being prepared.
I am asking the Minister to withdraw those sections on the basis of their questionable constitutionality and on the basis that the matter is being dealt with already. If it is not, it should be dealt with under the Children Bill. The whole area of the age of criminal responsibility is a major issue and is being dealt with in the Children Bill.
My last point is on amendment No. 19. All I can say on this is that this follows from the earlier amendment, No. 14, and both are linked. Indeed, they should have been linked together in this discussion here today.
I want on this occasion to refer only to the amendments proposed by Senator Costello to subsection (8) of section 2, to delete the reference to persons under 17 entirely. There is a lot in this Bill that nobody could object to. I want to ask the Minister a specific question with reference to persons under 17 and in particular to the specific category of persons under 14. I emphasise persons under 14. Let us not trivialise them by calling them children. They are people under 14. For those people, under the legislation, it is only the consent of the parent that is required. There is no obligation to even seek an opinion from the child for this extraordinary range of powers — taking blood samples, urine samples, vaginal swabs from a nine-year-old female. All of this will be done if the parent consents, irrespective of the young person's views, fears or state. I am not attributing evil motives to anybody. I am simply stating what is a fact. In that context, will the Minister explain why there is no obligation on the Garda to inform the parent that he or she has the right to withhold consent?
Let us be very careful here. Under section 3 (3) there is a clear statement of a sort of obligation. Section 3 does not apply to persons under 14, nor does it apply to the case where the appropriate consent has been refused by a parent or guardian. Section 3 is a section which implies an obligation to inform the parent that he or she can withhold consent. Section 3 does not apply to parents' parental consent. It is specifically stated not to apply to parental consent. There is, therefore, no obligation on the Garda when seeking consent from a parent to make the parent know or to let the parent know that they can withhold consent.
According to the legislation, a parent has an absolute right to withhold consent and no penalties can follow from it, either interpretations by the courts or other penalties. As I read the Bill, there is no right under section 2, or no obligation on the Garda, to inform the parent. They can say "We need your consent to do anything". What will the average parent think? "What rights do I have?" There should be a clear obligation to inform a parent of the right to withhold consent. Let us always remember that most of the young people who commit crimes come from dreadfully, painfully, deprived backgrounds. There is a correlation, no matter how many people want to ignore it, between deprivation and crime. That is not to say that deprived people are naturally criminal. It is a fact, though, that a considerable proportion of the inmates among prisons are from deprived backgrounds.
I would like to ask the Minister why it is that there is not a specific and clear obligation on the Garda to inform parents of their right to withhold consent? If I am mistaken, which occasionally happens, perhaps the Minister will explain why I am mistaken? I would like the Minister, since he is a different Minister to the person who was in the House on the last occasion, to defend the notion of doing these things to a child who does not want them done to him or her. Will he say what kind of weighty matters of law and order would justify the forcible taking of a vaginal swab from a nine year old child who is perhaps alienated from his or her parents, whose parents have not been told that they could withhold consent. Will the Minister explain that to me and to the Irish people in simple English? Of course Senator Costello has made the underlying and fundamental point that arguably it is a fundamental breach of the Constitution to allow that sort of interference of a person's bodily integrity other than with the consent of the person involved.
I will refer to the amendments first and then to specific questions. Amendment No. 6 which is being taken with amendments Nos. 10, 11, 13, 14 and 19 seems to envisage that consent would be necessary before any type of sample could be taken, even something as simple as a nail clipping or a swab from a 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 sample should be taken without consent. Amendment No. 13 proposes the deletion of subsection (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 amendment No. 6 were to be accepted and the taking of any type of a sample made subject to consent.
Amendments Nos. 14 and 19 propose the deletion of the provisions 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. I would take some convincing that parental consent should not be necessary before an intimate sample is taken from a child or a young person.
Senator Costello asked a specific question about what constitutes obstruction. That would be not co-operating with the officer or indeed physically preventing that person from taking a sample. He, as did Senator Ryan today and the last day Committee Stage was taken, referred to the question of age. They asked why the age of seven years was chosen and not 18 for the purpose of requiring parental consent.
The requirement to have parental consent is intended as a safeguard for persons of immature years. However, the provision of that safeguard carries with it a danger that collusion could take place between a young person and his or her parent to thwart the provisions of the Bill. This is possible because no adverse inference can be drawn where a parent refuses to allow a sample to be taken. This danger, in the interests of safe-guarding young persons under 17 and recognising the legitimate role of parents in relation to them, must be accepted. However, to increase the age for which parental consent is required to 18 years would involve increasing this danger considerably, as statistics show that persons between 17 and 18 years are frequently involved in serious crimes.
Senator Ryan poses the question regarding the parents right not to grant consent. It is a reasonable question but, of course, first of all, if the parents are asked to give their consent it follows they can refuse. I take the point raised by him. The regulations will provide that the parents will have a right and will be told that they have that right to refuse their consent. Of course, as the Senators are aware, in the case of children under 14 years a parent or a guardian's consent is required and if that is not granted then there will be no adverse inference. It follows very logically, when the Bill states that if the parents' consent is not granted there will be no adverse inference that the parents do not have to grant their consent but I take the point raised by the Senator.
The regulations will provide for this and, of course, in that case or in the case of those between 14 and 17 years of age where consent is also the consent of a parent or guardian it is also provided that there will be no adverse inference there if the case comes before the court. Hopefully, that will convince Senators that the parents will have an opportunity to withhold consent and that they will be advised of this.
The question was raised by Senators Ryan and Costello that in the case of children under 14 years the Bill should state that the consent is needed in addition to the parents' consent where an intimate sample is required. In the case of children under 14 years who are for the purposes of criminal prosecution presumed to lack criminal intent unless the contrary is proved, it seems reasonable to presume that the persons best fitted to look after their welfare are their parents. I doubt very much if a child under 14 years would be really capable of understanding the significance of consent in the context of the Bill. What value would such consent have if it was given? Could one be sure that it was a free and informed consent? Would there not be a grave doubt that the child might simply agree out of fear of refusing?
With regard to the remarks of Senator Costello to the effect that the taking of a sample from a child without his personal consent, whatever the view of the parents would constitute an assault, this is somewhat of a distortion. What is involved is the taking of a sample by a qualified medical practitioner who is very unlikely to allow himself or herself to be party to anything which he or she would consider would amount to an assault. The approach taken in this matter is fair and reasonable and I do not believe that the amendments suggested by the Senators would represent any improvement to what is proposed in the Bill as it stands.
I am a little confused by Senator Costello asking for subsection (7) to be taken out altogether. I am sure Senator Brendan Ryan will recall in other legislation some time ago I was deeply concerned about that age group of children not having the safeguards in the atmosphere of a Garda barracks or of some such building. At the time Deputy Michael Noonan was the Minister for Justice and we had a long discussion with him. I was concerned about mentally handicapped children at the time and I wanted them to be totally protected in a situation where they might not be able to look after themselves.
Senator Brendan Ryan said there is no use talking about 14 or 17 year olds as children; many are not children. I have no trouble at all in finding fault with draftsmen or indeed with Ministers' advisers and I am well known to be outspoken about and critical of them at times but it would be wrong for Senator Costello — I say this with graciousness to the Senator — to come in here as a new Senator and on every Bill from the Department of Justice to think that they purposely set out not to get it right or not to protect individuals. I share some of Senator Costello's worries of that Department and of the people who served down the line in it.
Persons of that age have to be included in legislation. Somebody asked why it was not left to the Children Bill. May be this part could not be included in such a Bill. I am not saying to Senator Costello that he should not go on fighting for his amendment but if we can help in any way in discussing it with each other across the Floor it would be better. Other legislation from the Department of Justice went through in former times when Senator Brendan Ryan and I were deeply worried about that age bracket of children or young adults at the time Deputy Noonan was Minister for Justice.
An Leas-Chathaoirleach
Is the amendment withdrawn?
No.
This is not a question I asked before. Do the provisions of section 2 (7) about obstruction apply to a child whose parent had given consent and where the child under 14 did not give consent? If a parent gives consent and a child, for whatever reason, obstructs a garda, is that child liable to the penalties of a fine of £1,000 or a term of imprisonment not exceeding 12 months for refusing to co-operate?
Technically, the answer is yes if there is obstruction but it would be a question for the courts at that stage to decide.
Is it not a very worrying situation where a child's parents allow a blood sample to be taken? Can the child not be frightened of this? A child may be worried about the whole procedure, syringes, doctors and all that it conjures up to a child who might be naturally scared of the medical environment and so on. We are not providing for a big tussle in a Garda station. There is also the question of the parents not being fully informed of the fact that they have the right of dissent.
I referred to that earlier. What is involved is the taking of a sample by a qualified medical practitioner. We all have respect for medical practitioners and they, in turn, have respect for children. It is very unlikely that a medical practitioner would allow himself or herself to be a party to anything they would consider to be an assault on the child.
As I understand the behaviour of the medical profession, in normal circumstances they take samples and administer treatment to people with their consent. In this situation provision is made for the medical practitioner to obtain samples from somebody without that person's consent. My understanding is that it is provided for under the terms of the mental treatment Acts and so on but in normal medical situations people consent to medical treatment. There is a strong school of thought which goes along the lines that medical treatment should be done on the basis of informed consent. Court actions have taken place on the basis that medical treatments have been done without the medical practitioner adequately informing the patient of the risks and so on.
The parent or guardian whose consent is necessary will be informed of that and that will be taken care of in the regulations. The parents' consent will be required. We are convinced that the parent's consent is adequate and as an insurance it is a medical practitioner, and in the case of dentures it is a dentist who will carry out the test. We are quite convinced that the medical practitioner and the dentist will make sure that there will be no assault on the child. We have taken all of this into consideration and we are convinced that the safeguards in the Bill are adequate to cover the children.
An Leas-Chathaoirleach
I will remind the House while I do not want to stifle the debate, that this set of amendments were discussed at length the last day.
I do not wish to delay the House on the matter but the manner in which the amendments were put together has caused a lot of the problems. I do not believe, as Senator Honan suggests, that all legislation coming from the Department of Justice is bad. I do not question their bona fides. I put it on the record the last day that the intention of the legislation is good and that it was intended to protect minors but that the manner in which it was drafted had the opposite effect and led to questions of constitutionality.
In relation to amendment No. 6 I asked the Minister why all of the consent could not be in writing. Why should some consent be in writing and others not? It is a simple matter. Secondly, in relation to section 2 (7) about obstruction, the Minister has confirmed what I said that if there is no co-operation or there is an assault there is legislation to deal with it. It amounts to intimidation because an extra penalty is imposed; the law already applies a particular penalty in relation to assault and then, if there is no co-operation, there is in this Bill itself provision for adverse inferences to be drawn. This is a gratuitous element. Section 2 (7) is a gratuitous provision and should be withdrawn. It increases the element of intimidation.
In relation to the question of minors in subsection (8) (b) and (c), I do not think we can emphasise sufficiently the concern we have here for that provision. It raises a grave constitutional question as to whether a minor's constitutional right to bodily integrity is infringed upon. Can a parent or guardian give consent to take away a person's right except for matters that are beneficial to that person? Can a parent or guardian say that a doctor can forcibly take a swab, and can a parent or guardian say samples can be taken without a medical person being present? The list of samples we are talking about is extremely extensive. We are talking about blood, public hair, urine, saliva, hair other than public hair, a nail or part of a nail that can be taken off a child without a doctor being present, any material found under a nail, a swab from any part of the body other than a body orifice or genital region, a swab from a body orifice or genital region, a dental impression, a footprint or similar impression of any part of the person's body other than a part of his hand or mouth. Irrespective of whether the medical practitioner is there, irrespective of the consent, there are still major constitutional and humane problems raised, I again raise the question which the Minister has not addressed, why cannot this section be deleted and dealt with under the update of the 1908 Children Act?
The first point I want to make is that it is important that we elaborate somewhat on the samples that can be taken with consent and indeed without consent. Senator Costello has referred to some of them. The samples that can be taken without consent are hair and nail clipping or scraping, footprints, swabs from non-intimate areas of the body. These can be taken without difficulty and do not involve any serious interference with bodily integrity. They are very much akin to taking fingerprints, which has been there for very many years. However, the other samples which the Senator referred to such as blood, urine and swabs from intimate parts of the body involve a greater degree of interference with bodily integrity or are potentially embarrassing. Without the consent and co-operation of a suspect, such samples could only be obtained by methods which would be degrading and humiliating. If the consent is not granted, than that would be taken into consideration by the courts.
In relation to the question where consent is not required, which is somewhat akin to fingerprints, there does not seem to be any great objection to taking a sample without consent such as hair, a nail clipping, footprints and swabs from non-intimate parts of the body. We must remember while we are discussing this that these are criminal justice proceedings. These samples will only be taken under section 30 of the Offences Against the State Act, 1939 and section 4 of the Criminal Justice Act, 1984. People will not be pulled in off the streets willy-nilly and these samples taken. They are criminal justice proceedings and they are there as well to protect people.
These provisions are absolutely necessary, and I am convinced that all the subsections are absolutely necessary. They are there in the best interests of the individuals. It would not be in the interests of this House or the other House if we were to accept any of these amendments. I want to emphasise, if it is not abundantly clear, that all consents must be in writing. Obstruction might not amount to an assault. It is a question for the courts to decide that.
We have had an opportunity to discuss these amendments at length since Committee Stage commenced. We are not in a position to accept any of them. We feel the provisions are in the best interests of the individuals.
An Leas-Chathaoirleach
Is amendment No. 6 withdrawn?
May I have a direction on this? I certainly will be seeking a division in relation to amendment No. 14. Can we take them separately or have they to be taken together? The amendments at the moment are being discussed en bloc.
An Leas-Chathaoirleach
We took the group of amendments for discussion purposes but now we are dealing with amendment No. 6. Is the amendment withdrawn?
Yes.
Amendment, by leave, withdrawn.
I move amendment No. 7:
In page 3, line 20, to delete "reasonable grounds" and substitute "material evidence".
To my mind "reasonable grounds" is a very subjective matter. It is intended here to substitute something more substantial so that there would actually be material evidence because the very fact that a garda arrests somebody is reasonable grounds if we go a step farther and have these very severe intrusions on the bodily integrity of a person there should be more than the subjective opinion of a garda. There should be reasonable grounds and these grounds should be stated. There certainly is a world of difference between the two.
The section should provide that the actual grounds on which the garda belief is based should be recorded and made available to the defence. This should be part of the Bill. The grounds should be stated on oath at the time as well. The British Bill, on which this Bill is almost entirely based, the 1984 Police and Criminal Evidence Bill, is much more forthright. It states that an officer shall inform the person from whom the sample is to be taken (1), of the giving of the authorisation and (2) of the grounds for giving it and further the duty imposed includes a duty to state the nature of the offence. These are much greater protections than are in our Bill. The British Bill requires that reasonable grounds be stated and that a degree of accountability be established. We are saying that "reasonable grounds" is very loose, very subjective, that something further is required to implement the provisions of this Bill and that it would be best covered by deleting "reasonable grounds" and substituting "material evidence".
I believe it would be wrong and not in the best interests of the individual that "reasonable grounds" should be substituted with "material evidence." The Bill as drafted requires that a member of the Garda Síochána should have reasonable grounds for suspecting the involvement of the person in the offence in question. The expression "reasonable grounds" is the normal natural expression for conveying the idea that the garda, for example, possesses some information from which he can reasonably infer that the facts giving rise to the power in question exist. The word "evidence" suggests that material evidence could be produced in court. Arrest and subsequent detention under section 4 of the Criminal Justice Act, 1984, is on the basis of reasonable suspicion on the part of a garda and the making of an order extending the period of detention by a superintendent is on the basis of reasonable grounds. It would be odd if a person could be detained in Garda custody on one ground but could only have a sample taken on different grounds, which is what the effect of this amendment would be. The position is that a garda may detain a person on reasonable grounds under the 1984 Act for six hours and that may be extended by the superintendent from six hours to 12 hours on "reasonable grounds".
In regard to the amendment by Senators Upton, Ryan, Costello and Harte to substitute "material evidence" for "reasonable grounds", it is not normal for a garda to have evidence when one is arrested. In fact, if he did have this material evidence, it may be that it would be necessary to charge the person immediately. If that evidence does exist — and there is a very thin line — if he has prime facie evidence, one would be charged immediately, so if there were material evidence available, there would be a question of charging that person immediately. I genuinely believe and am convinced that it is in the best interests of the individuals to have the words “reasonable grounds”, which is the normal expression for conveying the idea that the garda possesses some information from which he can reasonably infer that the facts giving rise to the powers in question exist. I would respectfully suggest to the Senators that, on reflection, it is in the best interests that “reasonable grounds” should remain.
As I read this section, it talks of "reasonable grounds" and ultimately goes on to the taking of a sample which will confirm or disprove the involvement of somebody in an offence. Am I not right in thinking that a member of the Garda would certainly have reasonable grounds for suspecting that pretty well everybody in the population would not be involved in an offence and, accordingly, could go around and take samples from whomever they would like simply to disprove the fact that they were involved in an offence?
I have nothing to do with the security force nor have I any knowledge of the whole business, but I suspect that most people are not involved in offences and, if I were a member of the Garda, would it not be reasonable, accordingly, to go around taking samples from everybody simply to prove that?
I would ask the Minister to confirm something for me. I think there is a certain spuriousness about putting in the words "reasonable grounds" at all. This is why I agree with Senator Costello and the other Labour Senators. For a person to be detained either under the Criminal Justice Act, 1984, or the Offences Against the State Act, there must be reasonable grounds for suspecting they committed an offence. Is it not true that a senior Garda officer who is authorising this must either believe he has reasonable grounds in which case he can go ahead and do all these things, or he must release the suspect? Once a person is arrested, the Garda have already stated that there are reasonable grounds for suspecting a person of the offence.
To put in a reference to reasonable grounds here is entirely spurious, because if they did not have reasonable grounds for suspecting the person who committed the offence then they would not be entitled to arrest the person in the first place. By the very fact of arresting the person the Garda have given themselves the right to pursue this whole taking of samples. This is not protection at all, because the person should not be in custody if they did not have reasonable grounds for suspecting him or her. If this is meant to be an elaboration of an investigation or a new phase or a more detailed phase, then it needs a different kind of wording from that used to justify arrest in the first place.
We could argue forever about "material evidence" or whatever the appropriate phrase should be; but to put in the phrase "reasonable grounds for suspecting" a second time is no protection for a suspect at all. From the minute the person is arrested and detained, the Garda have stated they believe they have reasonable grounds for suspecting and, therefore, everybody who is detained is automatically eligible to be subjected to all these tests irrespective of any attempt to pretend it is a protection.
I think the simple answer to Senator Upton's question is that wrongful arrest is a criminal offence and that powers are not being given to the Garda to take people off the street willy-nilly, as was seemingly suggested, to establish something by a series of elimination procedures and that everybody is taken in; if there is one person in the country who may be responsible for a crime, therefore the whole population minus one is taken in, or all are taken in, and then it is established that way. That certainly would not be a very practical way of doing this. I think it is important to remember that wrongful arrest is a criminal offence. If one is taken in and if the arrest is wrongful, then it is a criminal offence and the law will take its course there.
I asked the Minister a question.
To take the point raised by Senator Ryan, the answer to that is that if a sample is taken during the first six hours there will have been no reference to a superintendent. It is right, then, if he is asked to authorise the sample, that he should consider the grounds on which the person is detained.
Would it not be true that, if the Garda superintendent were to refuse authorisation to take the sample, he would have to release the subject, because he would have adjudicated that there were no reasonable grounds for suspecting the person?
That would be the case.
The point of the amendment was to provide some substantial basis on which these samples would be taken rather than the standard phraseology, which is "reasonable grounds", which permeates all criminal legislation and which is literally pretty meaningless in practice. "Reasonable grounds" is what the Garda officer arresting states, that he has "reasonable grounds" to believe that so and so was involved and so on. This is a carry-on to further activities and a further imposition on the citizen, namely, the eleven samples that can be taken in relation to the person's bodily integrity. What I am simply saying here is that there should be something beyond that in the Bill.
The British Bill states categorically that the arresting officer must state the grounds for which the samples have to be given. These have to be stated to the person. The person has to be told, not just the nature of the offence or the inferences that can be drawn, but on what grounds they are being taken from him. That has been specifically excluded from this Bill, and I have not got an answer from the Minister as to why that is the case. It seems to me that if the grounds were given then there would be an extra degree of accountability.
Here it is the old phraseology of "reasonable grounds", which is very much that the arresting officer would not have arrested somebody unless they had reasonable grounds; that, in practice, has equated with the subjective opinion of the garda. I am saying that the Bill, because of the extension of the powers given here, should include a more substantial measure in relation to the manner in which the samples can be taken and that therefore we should delete the phraseology "reasonable grounds" and insert "material evidence".
I am absolutely convinced that "reasonable grounds" is much more in the interests of the individual than "material evidence" and, at the expense of repeating myself, I must say that it is not normal for the Garda to have evidence when one is arrested. If we were to amend the Bill, replacing "reasonable grounds" with "material evidence", and if this evidence were available, then it would be a matter of charging the person immediately.
In regard to the British legislation, I certainly do not agree that our Bill provides fewer safeguards than the English 1984 Act. It is not the case in fact and the Senator's interpretation of the English provisions are not my interpretation, nor indeed the Minister's interpretation.
I am surprised that Senator Costello wants us to copy British legislation. I am sure he and I would have that in common, that we would not want that.
This Bill has already copied it.
What it has left out you would want put in. We have that much in common, that we do not want that kind of legislation here. We can form our own legislation.
In his last contribution, the Senator spoke about safeguards. Surely, if he goes down a bit further he will read:
Before a member of the Garda Síochána takes, or causes to be taken, a sample under subsection (1) of this section, or seeks the consent of the person from whom the sample is required to the taking of such a sample, the member shall inform the person ... of the nature of the offence...
Is the protection not there that Senator Costello is concerned about? Perhaps I took Senator Costello up wrong. Surely the protection is there or the information is given at that point. The Senator was saying it was not in the Bill.
Senator Honan is referring to subsection (3), and she is quite right when she says that. That provides that the authorisation referred to in the previous section, subsection (2), shall not be given unless the member given it has reasonable grounds for suspecting the involvement of the person from whom the sample is required in the offence for which that person is in custody and also that the sample may prove evidence of guilt, or indeed innocence. These samples are important in trying to prove one's guilt, but they are equally as important for the individual in that these samples could well prove one's innocence.
I am not going to delay this any further. On that point, in relation to what Senator Honan has said, that there is provision there is relation to the nature of the offence, the nature of the offence is very different from the grounds on which that person is obliged to give a sample. It is one thing to describe the offence; it is another thing entirely to state the grounds on which that person is forced or compelled to be subjected to a sample being taken. What we want there is that the grounds be covered so that the person would know precisely — and indeed record it — why they are the subject of this very severe infringement on their bodily integrity.
Is the amendment withdrawn?
The amendment is not withdrawn.
Question: "That the words proposed to be deleted stand" put and declared carried.
Amendment declared lost.
Government amendment No. 8:
In page 3, line 22, after "taken" to delete "In the offence in respect of which he is in custody," and to substitute:
"(i) in a case where the person is in custody, in the offence in respect of which he is in custody, or
(ii) in a case where the person is in prison, in 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,".
Acting Chairman
Amendment No. 8 has already been discussed with amendment No. 1.
Amendment agreed to.
Government amendment No. 9:
In page 3, line 36 to delete "that the sample" and to substitute "that the results of any tests on the sample".
This is simply a drafting amendment and involves no substantial change in the Bill. It is obvious it is necessary that this amendment be accepted. I just repeat that it is not necessary to retain the sample; it is necessary to retain the results of any tests of the sample. I would ask the House to accept that amendment.
It indicates the validity of some of the complaints we have been making about the quality of the drafting of the Bill.
Amendment agreed to.
Amendments Nos. 10 and 11 not moved.
I move amendment No. 12:
In page 3, line 39, to delete "as soon as is practicable" and substitute the following:
"immediately and a copy of the same shall be given to the person in custody, prior to the taking of the sample.".
There is a sense of déjá vu about this section as well. Whereas before we had “reasonable grounds”, here we have “as soon as practicable”. This is the old worn phraseology that has become virtually meaningless in practice. What we are seeking there is to tighten it up and to say that it should be done immediately and that a copy of same should be given to the person in custody prior to the taking of the sample. There is no reason why that should not be done.
It is an important amendment. Ordinary Irish search law requires that a searching officer furnish a copy of the search warrant to the person to be searched. Body search law should in principle be similar to the ordinary search law in this point. A person should, therefore, have the right to have a copy of the body search authorisation. There should be no distinction. If it is required in other areas the principle should apply equally where it requires a search in relation to the person's bodily rights.
Of course, in the Fourth Amendment to the United States Constitution there is no such distinction made, and indeed it further imposes on the judge a requirement in issuing a warrant, so why should there be a warrant issued in respect of a search of one's dwelling place and no warrant issued in respect of the search of one's body? What we are saying is that this should be tightened up very considerably and that the person should at least have it granted to them immediately, not as the Garda feels fit as soon as is practicable. That person should have the copy immediately granted to them in writing prior to the taking of the sample.
Just to elaborate on what Senator Costello has said, could the Minister clarify and, if it is not clear from the Bill, undertake to make it clear in the regulations, that a superintendent could give authorisation by phone — in other words, he would not have to be present in the station at all? Giving consent, or giving authorisation orally, does that mean that the person who wants to take the appropriate samples could simply phone the superintendent in his home, have a chat with him and the superintendent could do the necessary paper-work the next day in the station? There are very practical reasons why one could suspect this, because in rural areas particularly the superintendent does not always live in the Garda station. I would not be happy, I must say, with the idea that the authorisation could be given by way of a phone call without any serious assessment of the situation by a senior Garda officer. It would become, effectively, a formality with no significance.
The deletion of "as soon as practicable" and the insertion of "immediately and a copy of same shall be given to the person in custody prior to the taking of the sample" is an amendment that cannot be accepted by us. This was a general reference to subsection (5), which provides that, if the authorisation required under subsection (2) is given orally, it must be confirmed in writing as soon as is practicable. This is to ensure that it is recorded and available in the event of any dispute in relation to the taking of the sample.
To reply to Senator Ryan's question first, the answer is yes, he could give it orally; but, of course, he would not take the decision lightly. This Bill ensures that his decision can only be taken by a person of the rank of superintendent upwards. In reply to the question would it be given orally, the answer is in the affirmative; but it would have to be recorded. I am quite certain that is not a decision that would be taken lightly when it would be necessary to give permission to the Garda or to the doctor to take samples. It could well happen that a superintendent would not be available, physically in the station, to give it in writing for some time and I believe that could well infringe on the rights of the individual.
On grounds of reasonable knowledge a person can be held by the Garda for six hours and, on the advice of the superintendent, for a further six hours. If we were to take the situation where a superintendent would not be available — say it happens at 1 o'clock in the morning and the superintendent is not physically available to do this orally — I think then that would infringe on the rights of the individual. But, if he gives it orally, then it is necessary to give it in writing or to substantiate this in writing some time afterwards — as soon as possible and, hopefully, within a matter of days. I believe that the amendment is unnecessary. While possibly the intent of the amendment is to try to protect the individual involved, in practical terms it could have an adverse effect. It could also create practical difficulties for the Garda.
I am totally satisfied that the authorisation procedure in this Bill is fully adequate to provide proper safeguards for persons from whom samples are taken. The procedure is identical to that used in connection with extensions to the detention of suspects under section 4 of the Criminal Justice Act, 1984. It has not been the subject of complaint from detainees. It is sufficient to get confirmation orally and then in writing at a later stage. If this type of procedure can apply in the case of detention, which of course involve greater interference with personal liberty than the taking of samples, I cannot see why it should not also be adopted for the purposes of this Bill.
I referred to practical difficulties. I just wish to state that the amendment would introduce the requirements that an oral authorisation for the taking of a sample should be confirmed immediately in writing and that the suspect should be furnished with a written copy of such confirmation before a sample is taken. It would indeed be very difficult for the Garda to comply with these requirements unless the superintendent was actually in the station and, given that he could be absent for a lengthy period, the whole procedure for the taking of these samples would be undermined. I certainly believe that it would not be in the best interests of the individuals concerned. Therefore, I cannot accept amendment No. 12 as tabled by the Senators.
In regard to what the Minister said in relation to the Criminal Justice Act, 1984, that there has been no problems in relation to oral information being granted by the superintendent, presumably he is referring to the increase in detention hours. He has already stated that they have no statistics on the matter, so really the whole question of the confirmation and the number of confirmations that take place orally over the phone by superintendents is a matter that he has already indicated he has no information on. Therefore, I do not know why he is making the point in the manner he is making it.
When we are talking about the amendment in relation to this section, I cannot see where the problem exists. If a garda superintendent comes on the phone, confirms that the authorisation is to be given, why cannot we have this recorded? We have already had the Barra Ó Briain committee report back in 1977, which recommended that there would be various recordings taking place in relation to suspects in custody, both tape recording and video recording. No action has been taken on this. Indeed, in the Criminal Justice Bill itself there are regulations for tape recording so why can the actual conversation not be recorded on tape? Can the Garda station not transcribe that on to paper so that a copy can be furnished immediately to the suspect? The superintendent does not have to be in the station. Nobody is saying that — he can transmit his confirmation orally — but the person who is in custody should be provided with a written copy as to why these tests are going to be performed on it. As I said before, the normal law in relation to search provides that a warrant must be served on the individual before, for example, their home can be interfered with in any way by the Garda. Why does the same principle not extend to interference with the body of a person? I cannot see why the problem is there and I would like the Minister to address it.
I think the Senator has now accepted that, first of all, it is not practical to have a superintendent there to have it in writing. So we agree on that. He referred to the recording of the telephone call. No doubt when the garda contacts the superintendent he will take notes and subsequent to that the authorisation will come in writing from the superintendent.
In relation to the recording, that is a matter which is under consideration in the Department of Justice and I certainly will acquaint the Minister for Justice of the Senator's feelings in relation to this. It is something I cannot accept at this stage. I think we all have the interest of the individuals at heart and we want to be absolutely sure that this legislation is fair to them. A suspect could be held unnecessarily long in a station awaiting the attendance of and written confirmation by a superintendent. He may well be held there overnight unnecessarily, whereas these samples could be taken within the first few hours. I, as a public representative, would be as interested as any of the Senators in this matter and I firmly believe that if we were to accept this amendment it would certainly not be in the best interests of individuals. Therefore, I do not regret that I cannot accept it.
I am not saying that the superintendent should be in the Garda station. I am saying that if the superintendent is not in the Garda station the necessary safeguards that have been sought and recommended by a Government-sponsored committee since 1977 have not been implemented. They would provide for the recording of the voice of the superintendent giving authorisation for the taking of such samples. The recording could then be transcribed and the copy handed to the person in custody. That is what I am asking. That does not require a major feat of technology. Virtually every child in the country has a tape recorder and every second home in the country has a video recorder. The Garda station seems to be the only place where these little minor developments——
The Minister says he has not got one.
The Senator should speak for himself. We are all not as affluent in west Donegal.
The gardaí are not poor individuals. The Department of Justice can provide the equipment. We are not talking about the gardaí themselves buying a tape recorder or a video recorder. We are talking about what have been recommended by a Government-sponsored body as necessary safeguards to be introduced into Garda stations. Nothing has been done about them by the Department of Justice. The Minister says he will bring the matter to the attention of the Minister of Justice, but it has been brought to the attention of successive Ministers for Justice for 12 years now and still nothing has happened. Here we have legislation giving very substantial new powers to the Garda in relation to interference with the bodily integrity, forcible powers, compulsory powers, yet we still do not have the basic safeguards and the Minister tells me that we cannot have the safeguards because the superintendent may not be in the station to confirm his authorisation. Therefore we cannot have the authorisation in writing. I regard that as absolutely ludicrous and I would state very strongly that the answer given by the Minister is wholly inadequate. There is a solution to it. It is a reasonable and recommended solution, yet no action has been taken. The Department of Justice seem to be uninterested in taking action to ensure safeguards for people in custody.
I have to refer to the practical problems. One is assuming that the superintendent is readily available, but he may be in another part of his district or another part of the region. It could take him a considerable time go get there. Let us refer specifically to amendment No. 12 which states:
In page 3, line 39, to delete "as soon as is practicable" and substitute the following:
"immediately and a copy of the same shall be given to the person in custody, prior to the taking of the sample.".
I do not wish to be disorderly or to deviate from the amendment in front of us. There is no question of an amendment in relation to recordings. It is strictly suggesting that authorisation should be available from the superintendent in writing. I referred to recordings and said that the question is under consideration and that I will acquaint the Minister. The amendment is not designed to ensure that a recording of the conversation is available. I am thinking of the individual concerned and I genuinely belive that it is in the best interests of the individual that, after consideration by the superintendent, he should give oral authorisation to the garda concerned and that the samples may be taken immediately and, if necessary, the person in detention can be released. Senator Costello's amendments are well intended, but on reflection they would not be in the best interest and I regret that it is not possible to accept them.
Amendment put and declared lost.
Amendment No. 13 not moved.
I indicated at the beginning that I wanted some direction in relation to that group of amendments that we have discussed, namely, amendments Nos. 6, 10, 11, 13, 14 and 19 and I indicated that I would be putting amendment No. 14 to a vote. The indication was that it could be taken as it came up in order and I have every intention of putting amendment No. 14 to a vote.
Acting Chairman
It is impossible now. I thought it could be put to a vote without discussion but I was wrong about that. The advice I have is that it has fallen because of the decision on amendment No. 6.
I accept your ruling.
Amendment No. 14 not moved.
Question proposed: "That section 2, as amended, stand part of the Bill."
I do not think we should let section 2 be agreed without at least recording our views regarding the amendments. Firstly, I am going to have my representative on the Committee on Procedure and Privileges raise this whole question of amendments being discussed together and I want to give notice here. I have never, after eight years in the House, understood that procedure, although I am fairly well in touch with procedure. I cannot understand why, because Senator Costello chose to withdraw amendment No. 6, he cannot push amendment No. 14 to a vote. The whole discussion on amendments to section 2, which are of different kinds, has been hopelessly truncated and I am not happy with it. Because of that, I am severely tempted to oppose the entirety of section 2. I do not think I will, largely out of deference to the House and to you, Sir. But it needs to be said again that nothing the Minister has said has addressed the fundamental fact that we treat children over seven as being potentially capable of committing a criminal offence. We attribute to them the capacity at least to take full culpable responsibility for serious criminal offences. We can have all the niceties we like, but essentially we say that it is at least conceivable and may well be likely that a child over the age of seven can commit a criminal offence. At the same time we say that we will not believe that we should get their consent before these things are done to them. That is a revolting provision in what——
Acting Chairman
We take it that you are speaking on the general principle of the section.
I am speaking on the section. The section is seriously and unpleasantly flawed by what I think is an oversight on the part of the Minister which meant that the question of the consent of a young person under 14 years of age was left out. It is inconsistent. If children under 14 are not capable of understanding these things, then how in heaven's name can we suggest that they are capable of committing the offences they are suspected of committing and culpable of them? If they are not culpable there is no question of their being charged. You cannot have it both ways, which is what the Government want. We have had a resolute resistance to the raising of the age of criminal responsibility because of the fact that there are so many offences that are attributed to children of that age. At the same time, having refused to raise the age of criminal responsibility, we now, because it happens to suit, flip to the other side and say they cannot give consent or should not even be asked to give consent for what could be.
Anybody who has had a child visiting a doctor under the most positive circumstances will realise that things like the taking of a blood sample are quite frightening for small children. We are not going to consult the child but we are still prepared to insist on something that I take to be ludicrous, that we can actually treat eight-year-old children as criminals. As the Minister said, subsection (7) applies to a child once the parent has given consent. The offence exists, for a child over seven, of obstructing a garda or a person authorised by a garda in taking a sample under this section. The offence exists. It is not in any way diluted in as far as it applies to children, as the Minister has explained, and yet we are prepared to insist that it go through.
If we had had a different debate on the amendments it would not have been necessary for me to raise the matter again. We did not have, what I would regard as an organised debate on the amendments, which is a matter of considerable regret. The point still is, as I have said for most of today and the last day, a child under the age of 14 cannot refuse consent. If the parent gives consent and the child resists, the child is in breach of section 2 (7). At the same time, having said that the child cannot give consent or is not capable of giving consent, we still continue with this charade that the child is capable of committing and being culpable of a serious offence. You cannot have it both ways. Either the child is not capable of making rational decisions, in which case we should drop the whole thing, or the child is capable of making a rational decision, in which case his or her consent should be essential to the operation of the Bill.
As a parent, I see extraordinary responsibility on the medical profession. This is something we should have made reference to when we were going through it. Surely they will, in their professional way, protect these children in the taking of these samples. I would have confidence in the doctors protecting these children in the situation they might find themselves in. Since 10.30 this morning we have been giving the impression that the young person is hassled. I certainly would be as concerned as my colleagues that no legislation should go through this House that would not give fair play to a child of any age, be it nine, 12, 14 or 16. I have enough confidence in the doctors who would be acting in this role with persons in the forces of justice to ensure that children would not be abused. I believe that the doctors will look after them when this legislation goes through and see that they are cared for. Perhaps I am naive; maybe I have more reliance on the medicos. Throughout the discussion this morning we seemed to be saying that every person of that age might be abused in the taking of these samples. The discussion in general has been reasonable. I would put great reliance on the doctors protecting children, if there was to be a danger of abuse in the confines of a Garda station. I say that as a parent.
We are protected in a constitutional democracy by the law, not by the goodwill of individuals. It should be the law that protects us. It should be the law that defends us and not a reliance on the good judgment of any individual, be it a member of the Garda Síochána or a member of the medical profession. We are a nation of laws. The whole basis of our democracy and the whole basis of our freedom is law, not opinions, whether they be good, bad or indifferent or not indeed the undoubted integrity of most members of the medical profession and most members of the Garda Síochána. There is no one disputing that fact. The truth is that a child who does not cooperate can be charged with an offence which carries a penalty of a maximum of 12 months imprisonment. I do not think that it would be difficult to persuade a child who is already frightened to cooperate with a medical examination given that the alternative prospect is 12 months in jail. That is not much of a protection. I still do not know what sort of offences children under 14 are committing on such a grand scale that we need to do these things to them.
Senator Ryan is putting the frighteners on parents and children. Is he seriously suggesting in the context of the Bill that a parent or parents or a responsible guardian looking after the interests of children, who may have committed or are alleged to have committed an offence, would give the appropriate consent willy-nilly without any due regard for the circumstances? It is an appalling vista, to quote somebody else in a different context. The Senator is putting the frighteners on people by suggesting it.
A number of matters have been referred to. Many of the problems that have been raised have arisen out of the manner in which the amendments have been thrown together, rather than being separated. Essentially the serious and substantial matter we have spent most of our time on has been the area in relation to minors. It still has not been responded to in any adequate manner by the Minister.
The question of medical supervision was raised by Senator Honan. That certainly applied to a degree but not in all cases. There is an element of compulsion throughout because the consent must be either sought from the parent or guardian or from the child itself. There is that element of compulsion. But also where samples are taken there need not in certain cases be a medical person present. In any case where, for example, a medical person takes samples from somebody under the age 14 they are still forcibly taking the sample if that consent is not being given by the individual.
There is a major question there in relation to medical ethics and I raised what I considered two major points. One was the constitutionality of the Bill. This Bill is a carbon copy of the British Police and Criminal Evidence Act, 1984. Since that country does not have a constitution, it does not have the same obligations to bodily integrity which are incorporated in our Constitution and dealt with in section 40 (3). There are serious matters there that need to be addressed by the Minister.
The other point I made was that this section should not be introduced in this Bill but it should be dealt with in the context of the updating of the Children Act, 1908. We are dealing with minors. We are talking about reforming our children law which is so far out of date. We should not be dealing in this severe measure with people who are to be the subject of the new Bill at present before the Dáil.
Senator Costello suggests that this is a carbon copy of the British Police and Criminal Evidence Act, 1984. That is his opinion and it may well be a coincidence. If that is good legislation, so be it. If it is a mirror image and if it is good legislation, then we are quite happy to introduce our own legislation.
Senator Honan and Senator Mooney are very realistic about this. Far be it for me to suggest that Senators cast aspersions on any parents or on any members of the medical profession. There is a double insurance there. First of all, the parents consent is required for children up the age of 14 and parents' and individual's consent between the ages of 14 and 17. The parent or the guardian must consent. Secondly, it will involve a medical practitioner, not a member of the Garda. It is highly unlikely that a medical practitioner will allow himself or herself to be a party to anything which he or she would consider to be an assault on a child.
I find it necessary to return to the question of constitutionality and why the stipulation is 17 years of age and not 18 years of age. Statistics have proven that persons between the ages of 17 and 18 years are frequently involved in serious crimes. These relate to the Offences Against the State Act, 1939 and section 4 of the Criminal Justice Act, 1984. How can we possibly hope to have criminal laws in the country without some interference with one's right? It was suggested that people could be taken off the street willy-nilly. That cannot happen and it will not happen. It would be a criminal offence. There are no reasonable grounds for doing that.
If the Senators are dissatisfied with the way the amendments are taken, then that is a matter for the Chair and not the relevant Minister.
Acting Chairman
The taking of amendments together is a matter for the House.
Question put and agreed to.
SECTION 3.
Government amendment No. 15:
In page 4, lines 20 to 22, to delete:
"in respect of which the sample was taken or any offence of which he could be convicted on an indictment alleging the offence in respect of which the sample was taken".
The purpose of this amendment is to overcome a problem that could arise because as subsection (1) stands it would not allow the prosecution to introduce evidence of a refusal to consent to the taking of a sample where the accused is charged with an offence which is more serious than that in respect of which the sample was requested. This would mean that no inference could be drawn from a refusal to allow a sample to be taken in a case where a person was originally arrested for a serious assault but was subsequently charged with manslaughter or murder following the death of a victim. It is appropriate that the inference provision should operate in such cases and the amendment will achieve that purpose.
Amendment agreed to.
Question proposed: "That section 3, as amended, stand part of the Bill."
The amendment seeks to delete an important part of section 3 (1) where it limits the powers to the actual offence in respect of which the sample was taken. By deleting that section it is giving a blanket set of powers there. The wording "where a consent required is refused without good cause and any proceedings against a person for an offence" is leaving it wide open and it confirms our suspicion that this is a catch-all piece of legislation whereby an attempt is being made to broaden universally, without limitations, without parameters, the powers that are being given in relation to testing and sampling in this Bill. It seems a very deliberate attempt on the part of the authorities to do that. Restricting it to an offence in respect of which the samples would be taken would be some limitation on the operation. Now this has broadened it and I cannot see why this should be done, other than to give a series of catch-all powers to the authorities.
If the Bill stood without this amendment it would mean in respect of any evidence that it could be taken into consideration if the offence was a lesser offence. If it was a more serious offence, then the refusal to allow a sample, and the adverse inference which would be the effect of that, could not be taken into consideration. Are we, therefore, suggesting that if one was responsible for an offence and it was established afterwards that it was a greater offence than originally thought, be it manslaughter or murder, then this adverse effect could not be taken into consideration? We are ensuring that this adverse inference can be taken into consideration for lesser offences as the Bill stood, but with this amendment we are ensuring that greater offences would be taken into consideration. The purpose of the amendment is to take in all over and above the original provision and it is necessary.
Question put and agreed to.
SECTION 4.
I move amendment No. 16:
In page 5, lines 37 and 38, after "Public Prosecutions" to delete the following "or the person from whom the sample was taken,".
In what circumstances would the Minister envisage a person from whom a sample was taken seeking the retention of the sample? Would there be any good reason for doing so? Obviously there is no provision in the Bill for samples to be destroyed entirely. The impression would be that they could be kept indefinitely. There is a time limit in relation to a probation of three years which seems far too long. Why could persons not be allowed to apply to have their records kept on file? In particular, it would seem perverse that persons should wish that their samples would be recorded and kept on the files of the Garda and for that reason the amendment was introduced.
This section protects the individual. The answer to Senator Costello's question is that the individual could well require this evidence to prove his innocence and he could also require it for civil proceedings. The position is that all of the evidence and the results must be destroyed after a six-month period. The effect of this provision would be to deprive a person from whom a sample had been taken of the right to apply to the District Court for an order authorising the retention of records and samples which would otherwise have to be destroyed after a period of six months. Whatever the intention of the amendment in the names of Senators Upton, Costello, Ryan and Harte, I do not think it was their intention to take this right from any individual. If a person goes to the District Court it is a matter for the district justice to decides how long these records should be retained. I want to make it absolutely clear that if the district justice decides that they should be retained, if is not a matter of them being retained on the record forever more; it is a matter for the justice to decide the length of time, having heard the case made by the solicitor on behalf of the individual.
I am satisfied that cases could arise where it would be important that this right should be available to a person who has provided a sample, where the person has grounds to believe that the results of the tests carried out on the sample will establish that he has not committed a particular crime. It would be wrong of me to accept this amendment.
I was amazed to see this amendment to section 4 in the name of Senator Costello and other Senators. I think this provision would take rights away from a person rather than protect them. Perhaps there is a better explanation than the one Senator Costello has given. I read this amendment some time ago and I wondered if it was worded wrongly. The section as it stands would give people greater rights than if these words were deleted. I may well be wrong but I am long enough looking at legislation now to think I am not wrong.
I am satisfied with the Minister's response.
I would like to make one point. Senator Costello has been making references to the British Act and I do not question his motives on that. It is a matter of comparison, but I could not help but think, as this amendment was being debated, that if the Birmingham Six had the forensic evidence available to them some 16 to 17 years after the original alleged offence then Dr. Skuse, the forensic scientist involved in the appeal would have had to face the reality of being presented with the actual evidence 17 years later rather than his interpretation of the evidence.
Amendment, by leave, withdrawn.
An Leas-Chathaoirleach
Amendments Nos. 17 and 20 are related and may be discussed together.
I move amendment No. 17:
In page 5, between lines 41 and 42, to insert the following subsection:
"(6) The Minister shall make regulations relating to the method of destruction of records and samples.".
Amendment No. 17 states that the Minister shall make regulations relating to the method of destruction of records and samples and amendment No. 20 states that the Minister shall make regulations relating to the testing of samples for the purpose of the Act. Both these amendments are important because there are no regulations in the Bill in relation either to the destruction or the testing of the samples. We need certain safeguards in both these areas. For example, there are regulations in relation to the taking of the samples and there is a statement as to when the samples will be destroyed but there is nothing in relation to how samples are going to be destroyed. Is there going to be a monitoring agency established? Who is going to establish it and how are we going to know that this is done?
I would like to have seen section 17 state that the matter shall be put before the Houses of the Oireachtas for consideration. It is important that regulations be established whereby the destruction of records and samples can be monitored and, secondly, that regulations be established in relation to the testing of samples. Who is going to test the samples? Will it be the Garda Technical Bureau or an independent forensic agency? How do we know what procedures will exist for safeguarding the samples? We had thought at one time that forensic testing was virtually foolproof but that is not the case as we have certainly seen in relation to the Birmingham Six, which case has just been mentioned. We have seen in this country, in relation to the investigation into the death of the British Ambassador in 1977 how something even as foolproof as fingerprinting could have gone entirely wrong. Regulations in relation to these areas are extremely important. The Bill does not provide for them and these amendments state they should be in the Bill.
In relation to amendment No. 17, this would oblige the Minister for Justice to make regulations to deal specifically with the destruction of records and samples. Presumably what the Senators who have tabled the amendments have in mind is that every effort should be made to ensure that the Garda Síochána do not keep copies of records or other relevant material after the expiry of the prescribed time limit. I believe, however, that in imposing a clear, statutory obligation on the Garda to destroy records and samples, we have gone as far in that direction as we can. It is my view that the introduction of separate regulations to deal with their destruction would not contribute significantly to the matter.
It should be borne in mind that any breach of a clear statutory requirement would leave those responsible open to serious disciplinary action, including dismissal from the force. I see no need for the type of regulations proposed in amendment No. 20. How the testing of samples should be conducted is a matter for the technical and scientific competence of the staff in the Forensic Science Laboratory where these would be tested. These people have to appear in court, give expert evidence on the tests and satisfy the court of their competence.
The Senator referred to independent testing. As far as independent testing of samples is concerned, it would be open to any accused person to have tests carried out in a private laboratory if he wished to challenge the accuracy of the State's evidence and no regulations are needed for that. One may pose the question that if a blood sample, for example, is taken and is tested by the Forensic Science Laboratory, how could that be taken to an independent testing laboratory. The fact of the matter is that it is the end result that counts in DNA, irrespective of one's condition or state of mind. That is a question that any of us would pose.
We are absolutely satisfied the amendments are not necessary. To repeat, I would regard the provision as a breach of the statutory requirement and those responsible would be open to disciplinary action and, if necessary, dismissal from the force. I believe that these amendments would not, in any way, improve the Bill.
I support amendment No. 17. Too often we have seen public records appearing in dumps and other areas where they should not appear. To ensure that there is strict regulation in the disposal of the tests and records, there should be some control rather than leaving the provision as loose as it stands at present. With regard to amendment No. 20, a similar position as that which applies to the breathalyser, whereby a sample is given to the person to test independently, might satisfy the request of Senator Costello. Certainly I would be in favour of supporting a similar provision to that which applies with the breathalyser at the moment.
I am convinced we can rely on the Garda and the Forensic Science Laboratory to ensure that these records will be destroyed. They will be well aware of the confidential nature of the information available to them and we are quite satisfied that there is no necessity to introduce such regulations. We cannot accept the amendments.
Section 4(1) states that "every record identifying the person from whom a sample has been taken pursuant to section 2 of this Act shall, if not previously destroyed, be destroyed as this section directs and every sample identified by such record shall be destroyed in like manner". There is no reference to the manner in which the destruction is to take place. We are merely informed of when but not how. Whereas the section implies that there would be some regulations as to how the destruction would take place, there is nothing in the Bill to cover that. The Minister has stated he is satisfied that no copies will be kept by the Garda and that the destruction will take place but there is no provision to cover that.
We are dealing with legislation and not with the Minister's opinion or the Minister's satisfaction on the matter. This is extremely important considering the number of cases that have come to our attention both here and in Britain in relation to forensic evidence where reliability was not forthcoming, where there were question marks about the reliability of forensic evidence that we would have normally thought would be above question. It is important that regulations be established so that we know that the matter is properly monitored, that the destruction takes place and that it takes place in a certain acceptable manner.
In relation to amendment No. 20, the same is true in relation to testing of samples. We want to ensure that the procedure for the testing of samples follows along certain orderly, recognised lines and that it is not just haphazard. We have regulations in relation to the taking of the samples but what happens between then and the samples appearing in court? There is nothing in the Bill to cover that. It is extremely important that the matters be dealt with and, therefore, neither amendment is withdrawn.
This section refers to the manner and does not refer to how the records should be destroyed. It refers to the six months, or indeed it can be earlier if one is acquitted. Section 4(1) states:
Subject to subsection (5) of this section, every record identifying the person from whom a sample has been taken pursuant to section (2) of this Act shall, if not previously destroyed, be destroyed as this section directs and every sample identified by such record shall be destroyed in like manner.
It is the manner and the time limitations that this refers to in the destruction of records and samples. We will rely on and have full confidence in the Garda and the Forensic Science Laboratory to ensure that the records are destroyed after a period of six months. There are three different situations: a period of six months may apply; it can be less than six months if one is acquitted; or if the individual concerned who wants to prove his innocence may wish to have these records retained for a further period, the time may be extended beyond the six months by going to the District Court and the district justice will decide on the case made.
As I say, we have confidence in both the Garda and the Forensic Science Laboratory that they will be aware of the confidential nature of this information. We are satisfied that it is not necessary to accept amendments Nos. 17 and 20 which have been taken together.
An Leas-Chathaoirleach
Is the amendment withdrawn?
No.
An Leas-Chathaoirleach
The question is: "That the amendment be made".
Senators
Vótáil.
An Leas-Chathaoirleach
Will the Senators who are claiming a division please rise in their places?
Five or more Senators stood.
An Leas-Chathaoirleach
The division will proceed.
The Committee divided: Tá, 14; Níl, 23.
Tá
- Cosgrave, Liam.
- Costello, Joe.
- Doyle, Avril.
- Harte, John.
- Howard, Michael.
- Jackman, Mary.
- McMahon, Larry.
- Manning, Maurice.
- Neville, Daniel.
- Norris, David.
- O'Reilly, Joe.
- Raftery, Tom.
- Ross, Shane P. N.
- Upton, Pat.
Níl
- Bennett, Olga.
- Bohan, Eddie.
- Byrne, Hugh.
- Byrne, Sean.
- Dardis, John.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Foley, Denis.
- Hanafin, Des.
- Honan, Tras.
- Keogh, Helen.
- Kiely, Rory.
- Lanigan, Michael.
- Lydon, Don.
- McGowan, Paddy.
- Mooney, Paschal.
- Mullooly, Brian.
- O'Brien, Francis.
- ÓCuív, Éamon.
- O'Donovan, Denis A.
- O'Keeffe, Batt.
- Ryan, Eoin David.
Tellers: Tá, Senators Costello and Harte; Níl, Senators Farrell and McGowan.
Question declared lost.
Section 4 agreed to.
On a point of order, we do not have a Minister.
I would like to raise a point of order at this stage also, simply to point out that when the division was called it was only by the merest accident I heard the division bells because they are not audible on the lower ground floor of Setanta House. The monitor is not working either. I had to go out in the corridor and listen very hard. I was wondering if something could be done about that.
An Leas-Chathaoirleach
We will have the matter looked into.
SECTION 5.
I move amendment No. 18:
In page 5, line 49, after "2 (2) (a)", to insert the following "and 2 (5)".
What I wish to do in this amendment is to record, and see that it is recorded, what is provided for orally at the present time. It seems fully justifiable that one record, and not just grant an authorisation, but also that the confirmation of that authorisation be actually recorded. It is not sufficient simply to orally grant it, but also that confirmation would be recorded, and that it be recorded in writing. It is a reasonable amendment.
I presume that what is intended in this amendment is that among the matters which regulations should provide for should be the manner in which an oral authorisation given by a superintendent to take a sample should be confirmed in writing as provided in section 2 (2) (5). I agree that the regulations should provide for this. I believe that subsection (5) (2) (a) (i) as it is worded does so provide. The insert proposed in this amendment, I believe, is not necessary.
Amendment, by leave, withdrawn.
Amendments Nos. 19 and 20 not moved.
Section 5 agreed to.
Sections 6 to 8, inclusive, agreed to.
Title agreed to.
Bill reported with amendments.
An Leas Chathaoirleach
Next Stage?
We can take it now and finish it. We have to take only Report Stage.
The Leader of the House indicated to me that it would be taken next week.
An Leas-Chathaoirleach
Is that agreed? Agreed.
Report Stage ordered for Wednesday, 29 November 1989.
Sitting suspended at 1.15 p.m. and
resumed at 2 p.m.