Amendments Nos. 1, 28 and 30 are consequential on amendment No. 2 and may be discussed together.
Road Traffic Bill, 1993: Committee Stage.
Amendments Nos. 1 and 2 provide for the deletion of paragraph (c) of the definition of "reserved functions". Amendments Nos. 28 and 30 are consequential changes to sections 35 and 36 of the Bill. They are purely technical drafting amendments and they are being moved on the advice of the Attorney General's Office. They do not involve any change in substance.
Why was this requirement not recognised when the Bill was being drafted? On Second Stage I complimented the Minister's willingness to make a number of changes and to accept amendments during the passage of the Bill through the other House.
A number of amendments were introduced by the Minister during subsequent Stages in the other House and today he has also introduced a substantial list of amendments. This indicates — and I would like the Minister's observation on it — that, even in his own mind, there must be large question marks over the manner in which the Bill has been drafted. It will now be necessary, on the acceptance by this House of these amendments, for this Bill to return to the Dáil. By the time the Bill is approved by the Dáil, it will be a different Bill in most respects to that introduced in the Dáil.
As somebody who has considerable reservations about the implications of other parts of the Bill, I ask the Minister if the Bill was conceived, drafted and produced in such haste that it is now necessary to make major changes? If he has found that to be necessary I suggest that he also approach the amendments from this side of the House with an open mind in view of the manner in which the Bill has been so radically changed since it was first introduced.
I reject Senator Howard's contention that this Bill has been changed dramatically. As he knows, it is part of my task in the Dáil and in the Seanad to take account of Members' views. If one was to carry his argument to a logical conclusion, he is saying indirectly that I should not take account of those views but should leave the Bill as it is.
I hope the changes I adopted in the other House on foot of amendments put forward by myself and Members of the Opposition, together with amendments which I am putting forward here, will produce a much better Road Traffic Act. The Senator will appreciate that for a long time there has been a war of attrition in terms of what was happening in the courts in relation to road traffic legislation. A number of very technical matters were raised in the courts which allowed people who had obviously transgressed the law to go free. We have closed off a series of these loopholes and, in general, the Bill has been welcomed by all sides of both Houses.
We are now ensuring that when the Bill is finally passed all those necessary technical drafting amendments and any other substantial changes which we deem to be necessary at this stage are put in place. It is not a question of rushing the legislation or of bringing it in without due thought; it is simply the due process of public representatives in their capacity as Members of the Oireachtas having a natural input into what is happening. Members should be complimenting the Minister for the Environment for being open and reasonable and for listening to their views rather than criticising him.
I support my colleague Senator Howard. His general comments are as relevant to this amendment and this section as they are to the Bill in general. This Bill has been through the other House, through a Special Committee and through Second Stage here, yet we are still getting amendments. In the light of what has happened in recent times — we will not go into the National Development Plan here — it would appear that this Government is rushing into various announcements and putting forward legislation without doing the groundwork. I do not know whether this is to do with difficulties with the Attorney General, who has already come to the fore in relation to legislation which has been tested and fallen foul in another quarter.
This Bill has been brought forward and many of us support the intent behind many aspects of it. Whether some of these matters needed a new Road Traffic Bill must be questioned. There must be something wrong if, under the law muggers, rapists and murderers have rights but under this legislation, it appears those same rights will not be granted to individuals.
This Bill should be examined in detail again. Several months have passed since we debated the Bill in this House, yet various amendments arrived as recently as yesterday as to what is probably a technical part of the Bill. In this legislation many tried and trusted practices have been changed. Is the balance wrong in relation to various crimes?
We have already debated this Bill on Second Stage; we are now discussing Committee Stage and we should deal with the amendments.
We are dealing with a specific amendment and I would prefer if Senator Cosgrave would deal with it. You are giving a Second Stage speech; you should speak to the amendment.
My comments refer specifically to this amendment which is part of a section of a Bill which is being introduced in haste and has not been properly thought out. The comments I make on this section will also apply to other sections in the Bill.
When did the Minister get his advice because this Bill has been in circulation for some time? Did the Attorney General only wake up last week to the various issues in this legislation? This Bill was dealt with by a Select Committee on 29 September and in the Dáil and in the Seanad. Did the Attorney General advise the Minister about this section in the latter stages or after certain people spoke to the Minister?
I welcome the Minister's response to my contribution because he now accepts that this Bill must return to the Dáil. The Minister also indicated that many changes were made in response to points raised during the debate. This indicates a willingness to look at the amendments which a number of Senators will be putting forward in the course of the debate.
The Senator is not agreeing with his colleague who is totally against any changes being made in this House.
I did not say I was totally against any changes.
That is how it sounded to me.
The attitude of the other side of the House to the Bill is extraordinary. The Minister has been accused of not wanting to listen to arguments, yet, he has been complimented by judges on his attitude to this Bill. He is listening and he has made it clear to those on the other side of the House that amendments will be looked at. The tone of the debate has been extraordinary from the beginning. We should try to make progress.
I ask all Senators to speak to the amendments; four amendments are being discussed together.
This amendment is reasonable and we are happy to accept it. Amendments have been tabled by various Senators, including Senator Henry, ourselves, and the Government and we are able to accept many of them. Most of this Bill will be beneficial. We have been helpful and co-operative in relation to this Bill and that should be borne in mind by the Minister and by Senator Wright. One of the Minister's first remarks after Senator Howard's contribution was to reject those views out of hand.
No, that is not what I said.
The record will be available.
I rejected out of hand a contention that he made.
May I again remind Senators that we are not having a Second Stage debate. We are debating specific amendments or sections of the Bill. I want to take it amendment by amendment, section by section, and concentrate on particular points, not broad sweeping statements.
I am not going to make any broad sweeping statements; I want to make one comment. We are commencing this Committee Stage and I would like to set the ground rules.
The ground rules have been long set, not by you, the Minister or myself, they are in Standing Orders.
This is important legislation.
What I have to say relates to this Bill and the amendments. The implications of this Bill are very serious and will be with us for a long time. We want to support the Bill where it is reasonable, practical and makes sense, but where it is otherwise we would ask the Minister to be attentive. We have seen a number of pieces of legislation, for example, the Matrimonial Home Bill which was in the Supreme Court,——
May I ask you to speak to amendment No. 1?
——and the Criminal Justice (Public Order) Bill are in difficulties——
Senator Enright, I must ask you to address your remarks to amendment No. 1.
I hope this Bill would not be in a similar situation. This amendment is simple and straightforward and does not cause any difficulties. I appeal to the Minister to learn from what happened recently to the two Bills I mentioned because we do not want the same to befall this Bill.
You could have made all those points on Second Stage.
I did but I do not think the Minister was listening.
You have made your point. Senator Norris on the amendment.
These appear to be technical, almost grammatical, amendments and we should dispose of them as quickly as possible. The Minister seems to be exercising his function in receiving advice, presumably of a legal and drafting nature. I hope that when we do get to the issues of substance we can spend time dealing with them rather than what I think are pettyfogging issues.
Are we taking a group of four amendments?
I have made it very clear that we are talking about amendments Nos. 1, 28 and 30. They are consequential on amendment No. 2 and all may be discussed together.
I have looked at the grouping of these amendments and have tried to sort them out. However, the way the amendments have been grouped will be the cause of endless confusion.
I have made it very clear. Amendments Nos. 1, 28 and 30 are consequential on amendment No. 2 and all may be discussed together. That is the point I was making.
We are jumping from page 5 to page 27 of the Bill.
Are they being taken together?
Yes. I said that. I have made it clear that they may be debated and discussed together. At the end, the question will be put on amendment No. 1.
I welcome these amendments which seem to confer power on local authority members in respect of making regulations as to how traffic would be ordered in their jurisdiction. However, in welcoming his amendments I am sure the Minister will carefully consider the amendments moved by this side of the House. Further I would suggest that the Minister speak to some of his colleagues who have brought legislation to this House over the past few weeks and recommend that they show the degree of flexibility he is prepared to show to the House.
I am anxious to press on with this amendment. Senator O'Toole.
I could simply reply by saying ditto, but I do want to go on the record as saying that. I listened to the Minister's opening remarks and, in all fairness, I think the end of the debate will reflect his openness to accept views and proposals from this side of the House. That is the easiest way to approach it. We will suspend judgment until then.
I may not be able to recommend a similar course to my colleagues in view of some of the comments that have been made.
Amendment No. 3 is consequential on amendments Nos. 33 and 35. Amendment No. 34 is related. The amendments may be discussed together.
Amendment No. 3 provides for the repeal of an additional subsection of the Road Traffic Act, 1961, that is, section 118 (7). That subsection provides that proceedings for an offence of making a false declaration in connection with an application for a licence or a certificate may be instituted within 12 months and is inconsistent with the provisions in section 48 of this Bill.
Amendments Nos. 33 and 35 are amendments to section 48 of the Bill. Summary proceedings must normally be instituted within six months from the date of the offence in accordance with section 10 (4) of the Petty Sessions (Ireland) Act, 1851. While six months is the standard time limit for taking prosecutions for summary offences, existing road traffic law provides for an extended period of 12 months in respect of offences involving fraud in obtaining a policy of insurance or for making false declarations. The period of 12 months allowed in those cases is frequently insufficient particularly when the fraud or false declaration is not detected for some time.
Section 48 of the Bill was designed to allow a longer time period in such cases. It provides that proceedings must be instituted either within six months of the offence or within three months from the date the necessary evidence of the offence was obtained, whichever is the later but subject to a maximum period of three years. During the debate in the Dáil concern was expressed that this provision could be used to take proceedings up to three years after a standard motoring offence. That was never the intention of the Bill and I undertook to consider the point.
In my contribution on Second Stage in this House on 14 December 1993 I raised this issue and undertook to bring forward an amendment on Committee Stage to clarify the issue. This group of amendments gives effect to that commitment. The amendments specifically state that the only circumstances in which proceedings can be instituted after six months are offences under section 64 of the 1961 Act involving fraud in obtaining an insurance policy and offences under section 115 of the 1961 Act involving false declarations in obtaining a licence or certificate.
I am reluctant to return to what I said on Second Stage as I fear that keeping my commitment to fulfil the promises I gave then will cause problems.
I raised this issue on Second Stage and I compliment the Minister for acting on it. It will be a cause for relief for many people.
I have not read the amendments in conjunction with the Principal Act but I accept the Minister's explanation that the three year provision can only relate to the fraudulent offences to which he referred. Many people had a problem with the idea that a parking or similar offence could come back to haunt them three years after committing the offence. I gave some lurid examples on Second Stage. I welcome the amendments.
Contrary to the impression created earlier, we are glad to support this amendment.
I knew they were opening shots. They are behind us now.
We have put a stay on them.
I compliment the Minister. Uninsured drivers are a major problem. There are also difficulties with insurance certificates, falsification of such certificates and related scams. Any measure which will tackle those problems and bring the perpetrators to justice will have our support. I thank the Minister for his efforts in that regard.
I welcome this amendment and the Minister is aware of the level of concern about this matter. It strikes me as wrong that summary proceedings could be brought up to a period of three years later. At that stage the witness in the dock would have considerable difficulty remembering the events of the time and, even from that practical point of view, the six month limit is to be welcomed. John Boland made the point in an article which I imagine was influential in amending this law that justice delayed was justice denied. That is a sound principle.
Perhaps the Minister would clarify if there are offences for which there is up to 12 months during which a prosecution can be taken or if summary proceedings are now limited to six months. The Minister mentioned a 12 month period in his opening remarks, and I am not clear as to the precise conditions under which summary proceedings could be taken. I understood it to mean a period of six months but I was not clear on the point.
In regard to this amendment, an insurance policy is totally void if there is fraud involved or where wrong information of any type is given, or if wrong information is furnished in obtaining a driving licence. The investigation of such a fraud can take some time. The Minister has pointed out that there are occasions when it may take some time to discover that such a fraud has been perpetrated. This amendment and the idea behind the Minister's proposal are worthy of support.
I was concerned about the extension of the time and there was a proposal to limit it to three years in which to bring summary proceedings. That would have been of concern to everybody because it is almost impossible to recollect an event after such a long period. A person might not have been aware that an offence was being committed and may suddenly find they are facing a summons. That would have had a serious detrimental effect on the system of procedures as we know it; it would have clogged up the system. This amendment relates specifically to offences of fraud in relation to insurance or driving licences and is to be welcomed.
I can readily understand reservations about extending the time period for ordinary motoring offences. I was not and am not now proposing that, but I want to put beyond doubt that we are dealing with offences of fraud or false declaration. Proceedings must be instituted within three months after the evidence is produced. The period for producing the evidence could be as long as three years.
It would be very difficult to cover every contingency in this Bill. However we should place an onus on insurance companies when accepting certain applications for insurance. An examination should be made of the registration number of the vehicle, the type of vehicle and, perhaps, the chassis number. On occasion, insurance companies accept insurance applications but if they discover an error, they disclaim responsibility. I will raise this issue again but I ask the Minister to give it attention. This can happen through no fault of the individual.
Question agreed to.
Section 9 reads: "‘analysis' includes any operation used in determining the concentration of alcohol in a specimen of breath, blood or urine...." I am concerned about the use of the words "includes any operation". That is open ended and it should be possible for the Minister and his Department to be specific about the operation or operations now available to establish what is required. I ask the Minister to respond.
Analysis is defined as any operation used to ascertain the concentration of alcohol in a specimen of breath, blood or urine and any operation used to ascertain the presence of a drug or drugs in a specimen of blood or urine. This definition differs slightly from that in section 9 of the 1978 Act in that it has been extended to include the testing of blood for the presence of drugs. I take it that Senator Howard has no objection to that.
I raise this issue because this section contains the first mention of designated doctors. I hope a plentiful supply of doctors is found because one of the main reasons many drunk driving cases fail is the lack of available designated doctors. The Minister may not be responsible for this; it may fall within the remit of the Department of Justice. Nonetheless, this is a serious problem, especially in country areas and someone must address the matter. The training of such doctors is also important. The medical profession have sought the appointment of a sufficient number of properly trained doctors.
In important legislation such as this it is necessary to secure all components to the maximum possible extent, whether Garda activities and medical involvement. Over the next few years as evidential breath testing evolves, some of those pressures will be reduced. In the interim it is essential to have a guarantee of the greatest commitment to ensure we bring people to court and to justice when they are obviously breaking the law.
Sections 9 and 10 of the Bill refer to breath specimens. Is the Minister in a position to comment on the success of the breath testing procedure which was used as the final evidence, as regards procedures in Britain? My understanding of the situation in Britain is that there have been thousands of cases thrown out because of the unsatisfactory nature of convictions with regard to breath testing.
As regards section 9 which deals with alcohol levels in breath and urine, and the offences arising under that section, would the Minister say if these are the offences which would come under the Second Schedule of the Bill? Would they lead to an automatic disqualification for a two year period and the necessity to sit a driving test subsequently? The section refers only to the fine and the imprisonment period.
The point raised by Senator Enright will be covered in section 17. Senator O'Toole's point will be dealt with in later sections and amendments, although they are interwoven.
I do not wish to appear to be nit-picking but I refer again to the words I mentioned earlier, analysis "includes any operation". I presume this means a mechanical or a chemical test, or something of that nature. I am happy for this legislation to validate the existing processes. However, it may be that we are giving open season to a type of testing that might emerge in the future. I want to draw a line at the methods and type of testing that exist at present. If this legislation is required to give legality to that, that is fine. However, this provides validity to any future method of testing that may emerge. This is a dangerous precedent to include in this or in any other legislation. I require clarification from the Minister on this point. Will including these words in this section have the effect without further examination by the Oireachtas, of giving legitimacy to different methods of testing that may arise in the future?
This legislation was fought line by line in the Houses of the Oireachtas. There has been public comment, some of which has been quite erroneous, by former Members of the House and former members of the Judiciary. In relation to driving offences, the Road Traffic (Amendment) Act, 1978, states in Part III, section 9 (1):
"analysis" includes any operation used in ascertaining the concentration of alcohol in a specimen of breath, blood or urine...
We are talking about the same provision, term and text that has been used——
Past, present and future.
——since 1978 without a problem.
I was confused about the references to sections in the Second Schedule, but these are referring to sections in the 1961 Act. This confused me because I was comparing sections in the 1961 Act to this Bill.
Some have argued that it would be better to implement more stringently the current regulations, which is a strategic rather than a principled position. However, under this legislation somebody who has taken two pints of Guinness and is driving home will probably be over the limit and will be found to be in breach of the law. There can be no argument about this straightforward, strategic political and principled decision by the Government. The person can be fined up to £1,000 and imprisoned for up to six months, although some element of discretion is allowed. However, there is no element of discretion in the provision whereby that person will automatically get a two year suspension——
That is incorrect.
My understanding is that this is a mandatory offence under the Second Schedule and that a disqualification is required for a given period. The Second Schedule to the Bill lists the "Offences under the Road Traffic Acts, 1961 to 1993, involving Consequential Disqualification Orders”. Among the offences listed is “An offence under section 49 of the Act”. This is dealt with in the section the House is currently debating. This in turn refers back to section 26 of this Act which deals with disqualifications. Section 26(1) states:
Where a person is convicted of an offence specified in the Second Schedule to this Act, the court shall make an order... declaring him to be disqualified for holding a driving licence.
This appears to be mandatory on the basis of an offence under the Second Schedule which would include an offence under section 10 of this Bill, the section the House is discussing at present. This person will therefore incur the same kind of punishment as somebody who is three, four or five times over the legal limit. It is similar to playing Pontoon, where 22 is the limit, 22 is a million and so on, but it appears to be inherently wrong to administer the same level of punishment to somebody who is marginally over the limit and to somebody who is grossly, obviously and five or six times over the limit, which is a level far beyond that contained in the section which the House is currently debating. A person with 85 milligrammes of alcohol per 100 millilitres of blood is going to be treated in the same manner as somebody who is 300 milligrammes of alcohol per 100 millilitres of blood, a situation which I often read of in the newspapers.
I am advised, Senator, that section 26 is more appropriate for your remarks. The House is currently considering section 9.
I am considering section 10.
Section 9 has not yet been agreed. Perhaps you would examine the other section I mentioned.
I understood that the House was discussing section 10. I will await the deliberations of the House on section 10.
Section 9 (1) states:
"‘analysis' includes any operation used in determining the concentration of alcohol in a specimen of breath, blood, urine, and any operation used...".
This deals with alcohol, where an analysis is undertaken. However, breath is included and this also pertains to section 10. There must be a blood and urine test carried out to determine if there are drugs in the body. This is something which is understandable and which we support. I have reservations about the inclusion of breath in this context because of the factors involved in section 10. I ask the Minister to consider these reservations. I have no difficulty with a person providing a breath sample or being asked to give a blood or urine sample for analysis. However, I am concerned that——
Senator, your remarks are more pertinent to section 10. I wish to deal with section 9 first.
Regarding the matter I have raised, may I ask if the Minister could introduce an amendment specifying that a breath test be taken for breathalyser purposes and that blood and urine samples be taken later. I have reservations about using the breath test as a measure to ascertain if a person is or is not over the limit.
Senator Enright has remarked that there must be a distinction between giving a breath specimen and using that specimen of breath as the probable conclusive evidence from the bureau. Perhaps the Minister would respond to the concerns regarding this matter.
Senators will be aware that evidential breath testing was first legislated for in the UK in 1981. There was a long gestation period in which to have it successfully tested and in the meantime technological and scientific advance has been quite phenomenal. This has meant that by 1989 it became the normal process. This legislation provides the necessary legal framework for its introduction in due course, but it now appears that there is little scientific doubt that the newly designed apparatus for evidential breath testing is phenomenally accurate.
May I advise the Minister that I support this section on condition that he show flexibility regarding section 26 in dealing with this section? The overlap between sections can be confusing and I apologise, a Chathaoirligh, for my earlier remarks which were addressed to section 10 as I understood it was the section then being considered. I will defer my remarks on this matter until the House considers Senator Howard's amendment under section 26.
There are a number of provisions in section 10 which I support. The section reads:
The following section is inserted in the Principal Act in substitution for section 49 of that Act:
"49.—(1) (a) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he is under the influence of an intoxicant...
(b) In this subsection ‘intoxicant' includes alcohol and drugs and any combination of drugs or of drugs and alcohol.
These measures are welcome. All Senators share the concern with efforts to minimise drunken driving and to rid the country of people who are drinking to excess and causing carnage and injury on the roads.
From inquiries I have made regarding the situation in the UK, my understanding is that in the UK and across Europe there have been considerable problems regarding the breath test. A driver is stopped and invited to blow into a breathalyser. On the basis of this test alone, and without any urine or blood sample being procured, the person can be convicted of drunken driving.
Following a conviction on a breath test alone, the person involved will lose his or her licence for two years, can be fined up to £1,000 and can be suspended from driving for that period. Following this he or she must then undertake a test and until the test is passed will not hold a licence. This will prevent the person concerned from driving for an indefinite period of time.
May I suggest to the Senator that the point he has raised is addressed in section 17 and that is when the point should be considered?
I do not want to enter into a disagreement with Senator Finneran. Section 10, which amends the Principal Act, will be the basis for further sections. As Senator O'Toole said, we are talking about someone who has had two drinks and may be marginally over the limit. Two breath tests are given and the lowest is discounted or used as a guide in court. If a person takes this test, it is used as evidence in court. Once a garda gives evidence that the breath test exceeds a concentration of 35 microgrammes of alcohol or 100 millilitres of breath, the judge has no discretion in this regard. He must automatically suspend the person's licence for two years and he may impose a fine of £1,000 or otherwise. The person must pass a test before his licence can be returned. A person who is a borderline case will be suspended.
As this is such a serious offence carrying serious penalties, the normal procedure where a blood or urine sample is taken should be applied. I do not oppose a situation where a blood or a urine sample is taken and tested or where a person is afforded that opportunity. However, when a machine, which may be right or if there may be a slight margin of error, decides, the defendant has no way of proving it was wrong. Humans err, but so do machines. I ask the Minister consider this matter.
This is a fundamental change in the law where one test by a machine may decide a person's livelihood by leaving them without a driving licence. We must weigh a person's right in this regard. The Minister will know from my views on other issues that I am not a liberal. However, I ask him to carefully consider this matter.
While I appreciate the necessity for safety on the roads and commend the introduction of measures which will help to reduce the number of fatalities and serious injuries which occur, I had hoped the Minister would have addressed this problem in a more comprehensive manner by examining various factors, including drink, which contribute to tragedies on the roads. Everyone condemns drink driving and every Senator will support measures to curb it. However, there must be a distinction between a person drink driving and a person driving a car after a couple of drinks. Section 10 removes that distinction and sets out to penalise the majority of drivers who have been reasonable and sensible in their approach to drinking and driving.
When passed, this Bill will bolster the enforcement statistics through increased detection, prosecutions and convictions. It will reduce or, perhaps, eliminate the social life of many people in rural Ireland, particularly those in remote areas. In many cases rural public houses will be put out of business. This may lead to a disturbing development — drinking in the home. There would be no limitation on drinking hours or on consumption and——
We are relieved to hear that.
——this may impact on family life and instances of alcoholism. It remains to be seen whether it will improve road safety or reduce the number of tragedies. I cannot find any reliable statistics which show that the proposal to reduce the drink limit from 100 to 80 milligrammes will do anything other than penalise a hard pressed section of society — motorists.
Like the previous speaker, I will try to keep within the confines of the section. In case earlier comments may have been misconstrued, legislation exists which we are trying to improve, but it must fair and it must deal with the relevant issues. The Minister mentioned that evidential breath testing in the UK, which was first legislated for in 1981, has been successfully tested. This will be a third option. What time scale does the Minister have in relation to this option and specimen and breath testing? Although this may be confused with blowing into a bag, it will be a specific third option on a par with blood or urine testing. What regulations will be introduced? What guidance will be given to gardaí and medical practitioners? If this option is adopted, we should know all about it.
When discussing the previous section, the Minister made a statement with which I agree. He mentioned the accuracy of the equipment and said that with advances in technology, the ability to analyse is becoming more sophisticated. In some areas in science we may now analyse for parts per billion, previously it was parts per million and 50 years ago it was parts per 1,000. The equipment's ability to do the job is not the problem.
I agree that objective standards should be defined in the legislation. The argument about what those standards should be is virtually over and they are established. The difficulty is that the Garda officer handling this highly sophisticated equipment, which does the analysis on the spot, may not use the equipment in the way it is intended and inaccuracies may occur. Section 12 says that a member of the Garda may indicate the manner in which a person is to comply with the requirement. For how long does a person exhale? What is exhaling? Government amendments refer to exhaling. If the equipment is to do its job properly, it must be used under conditions which the makers of the equipment will specify. We are depending on the garda on the spot to do this job properly and on the person being instructed by the garda, who may not be confident or sober enough to do so, to exhale in the prescribed manner. There is a large capacity for an absolute bags to be made of this procedure. That is the problem I have with this section.
It is fine to establish standards and this should be done but their implementation will cause difficulty. Having established standards and decided a person is in breach of them, we come to the point where the Judiciary has an obligation to impose penalties, which in my view is wrong, but I will wait until section 26, which is the appropriate one, before I discuss this. I was a little worried about something Senator Bohan said. I had the impression that he thought people who were drinking in the privacy of their own homes should be restricted as to the quantity they drink and the hours in which they do so.
I am sure that is not what the Senator had in mind.
I hope it was not but I do not think it was.
I will not labour the point further except to re-emphasise what has been said. It is a major concern of mine that we are introducing a third method by which people can be prosecuted. It has seemed to be obligatory for most speakers to say they do not agree with excessive drinking. Neither do I but I will not repeat this every time I stand up. I made my position clear when we discussed this on 14 September 1993.
Heretofore, when a person driving a vehicle was stopped by a garda, they were asked to blow into a breathalyser, or the bag as it is known. If this indicated a certain level, the person was taken to a Garda station to have that level confirmed. On the basis of a sample of blood or urine, it was established whether they exceeded the limit. There was one great safeguard in both of these methods in that the person was given another sealed sample which he or she could send for independent analysis. This does not apply to the new option. Senator Finneran felt that it might apply under section 17. However, this is not so.
A statement will be issued by the machine, a docket will emerge from it. A garda will give this to the person concerned, who will be obliged, under a certain penalty, to sign a receipt for it. The possibility is there that the machine will err. Senator Dardis referred to the capacity of the person to use this machine properly. If there are around 9,000 members of the Garda Síochána, there are 9,000 possible operators of the equipment. One can calculate the margin of error which may occur. The Minister is introducing, as he acknowledges, a third method, which, from the point of view of the person concerned, will not be as objective or safe or as protective of their rights as the other two methods. There will be an absence of separate independent samples which individuals can have analysed themselves. This right which existed until now is being removed totally.
Senator O'Toole and Senator Enright referred to penalties. They omitted to mention one of the most significant ones, which is that a person convicted under this section, in addition to the penalties they mentioned, will be saddled with the costs of the prosecution. As far as I am aware, this penalty is unparalleled in the criminal courts at the moment. I will be raising three other queries about this section but now I just want to emphasise that we are removing a safeguard which has existed until now under the other two methods.
The section refers to drugs as well as alcohol. Is there any way of detecting the presence of drugs, other than alcohol, in a person's system?
The taking of breath tests to be used in evidence in drink driving prosecutions is now the norm in many European countries and is gradually replacing blood and urine tests. It is controversial wherever it is introduced. It was controversial in the UK and gave rise to many legal challenges in the beginning. When blood and urine testing was introduced in Ireland, there were numerous legal challenges on procedural and accuracy grounds. The current procedures for blood and urine testing were developed in the light of experience over a number of years and are now accepted by the courts. The procedures involve the giving of a portion of the specimen to the arrested person who has the option of obtaining an independent analysis. Each specimen is tested twice by the Medical Bureau of Road Safety and the mean of the two results is taken. A tolerance of 6 per cent is deducted from the mean and the reduced figure is the official result of the analysis.
In the case of the introduction of breath testing, it is my intention to have a trial period of at least two years, during which breath testing will be carried out in addition to the testing of blood and urine specimens. This will provide a good representative sample over a number of years and we will develop confidence in the system if we see the simultaneous use of both systems produce coincidental results. There is no intention to depart dramatically from proven experience. We want to introduce the new system in a way which will be acceptable and in line with European experience.
There are ways of detecting whether there are drugs in a person's body and we must continue to develop them. The points made by Senator Bohan have been made consistently about this legislation. There are certain fears, as there have been on each occasion a new Road Traffic Bill was enacted, going back to 1933 when we had the first phase. Road Traffic Acts were also enacted in 1961, 1968, 1978 and 1984, and now we have this Bill.
There are a number of aspects of this which I wish to place on the record so that the House will be clear about my approach. The effects of alcohol on a driver's performance are often understated and misunderstood. When blood alcohol levels exceed 80 milligrammes, which is the level proposed in this Bill, the normal reaction is overestimation of ability and impairment of peripheral vision and the reaction of eyes to light and dark. Judgment of distance and speed of oncoming vehicles, impairment of ability to react and a tendency to take risks can all set in at the lower levels.
There have been arguments here on a number of occasions on the exact statistics in Ireland. I must confess, as I did before, that we need to boost our statistics. We depend considerably on statistics which have been compiled in other parts of the world. A variety of international studies have all concluded that alcohol is a factor in a significant number of road accidents. These analyses vary between attributing a minimum of 25 per cent of all road accidents to alcohol to a high of 50 per cent. I have taken a position for Ireland of 33 per cent which is at the lower level of those international statistics on the relationship between drink driving and accidents.
Data recently available in the UK, which strongly substantiate what I have been saying, show that approximately 30 per cent of drivers killed in road accidents had some alcohol in their system. Twenty per cent of those killed had blood alcohol levels of over 80 milligrammes. It would be difficult to prove that the extent to which alcohol is a factor in Irish road accidents differs substantially from the position in many other countries.
A study carried out in the last two years on behalf of the European Conference of Ministers of Transport stressed that in most countries there is a strong underestimation of the exact number of alcohol-related accidents, especially where fatalities are concerned. In many countries, as in Ireland, the police cannot take blood specimens from accident victims and official data do not totally reflect the real situation. Unfortunately, our statistical data are incomplete for which there are specific reasons. The main difficulty at present is that specimens for analysis cannot be taken from people admitted to hospital. The Bill sets out to rectify that. We also need regular analysis of data from coroners which I intend to address.
We would be ignoring the reality if we were to think that the only problem is the driver who is obviously drunk. The days of "two will do" are gone. The approach of this Bill is based on the best international practice. I have given this House before some of the other statistics in relation to studies which have been carried out in America, France and the Netherlands. In the Netherlands, 25 per cent of road accidents involve people who exceed the 50 milligramme limit. Studies in America show that at 100 milligrammes of alcohol per 100 millilitres of blood one is twice as likely to have an accident as with zero alcohol, and at 200 milligrammes one is 25 times as likely. That is the rate at which that graph rises.
To put it in simple but very traumatic and obviously unacceptable terms, more people have died on Irish roads in the last 25 years because of drink driving than died in the trauma in Northern Ireland during the same period. My office receives heart-rending letters which leave me in no doubt that there is dramatic room for improvement.
I am not prepared to water down the essential features of this Bill. I have listened, brought forward amendments and made changes but it is incumbent on all of us to face the realities. All of the international statistics reinforce my strongly held view that we will be unable to reduce the level of carnage on our roads unless we try to deal seriously with offenders. It is not true that only those who drink to excess are involved in road accidents. All of the evidence shows that while they may be much more likely to have accidents, many who consider themselves safe drivers are, regrettably, also involved.
We will deal later with specific aspects of this but a question was raised as to why one person who is just marginally over the limit must accept the same penalties as somebody who is much more over the limit. As I said, we are providing for minimum sentencing, disqualification or whatever. It is always a matter for the courts to decide whether penalties should be increased in a particular case.
Senator Bohan and many others have expressed concerns about the statistics and whether we can prove this case. There are many people who would like, for genuine reasons, to be able to say that the story is different. However, the reality is that considerably more than 100 people are killed each year on the roads and up to 3,000 are seriously injured. There are many people who will lobby for their own particular interests but there is never a strong lobby for victims in cases such as this.
I wish to ask a couple of questions in the light of what the Minister has said and I hope I will not incur the wrath of the Chair in making a Second Stage speech. The Minister mentioned various statistics and data, most of which are international although I suppose it is all relevant. How much information was there in relation to the difference between consuming 80 milligrammes of alcohol and 100 milligrammes? The Department has changed from the "two will do" campaign to a stark message that one should not drive if one is drinking, which would happen in an ideal world. Could he give some statistical information on the difference between a person who has consumed 80 milligrammes and one who has consumed 100 milligrammes of alcohol? Neither amount would normally be considered excessive. I also wish to refer to reducing the permitted alcohol level from 100 milligrammes to 80 milligrammes. Perhaps the Minister could roughly indicate how we compare with other European countries. Are there many countries with levels below or above us?
We all support the Minister's goal to reduce the levels of carnage on our roads and some of these provisions may help. Since the previous Act was brought in there are many more cars on our roads. There are other factors which should also be taken into account.
Apart from the Minister's overall intention of cutting out driving if one is drinking, I have not heard him refer to the drinking limit — apart from reducing it from 100 milligrammes to 80 milligrammes. The Minister, when replying, might give us statistical evidence from other European countries that show these reductions have brought about a corresponding reduction in accidents. The previous legislation has been in place for some time. It could have been more strictly enforced, but it did work well, although some of the older Acts were challenged.
One can take it as read that no Senator on either side of the House would defend drunken driving, although it may have been taken this way because it was not referred to up to now. I do not disagree with the Minister's general observations. He is correct when he says that the days of "two will do" are gone. He also spoke about the victims, and we all share those sentiments. However, there are dangers in using statistics and we must be cautious with them. I say that as someone who has training in this area.
If the Minister states that 20 per cent of the population have a blood alcohol level of 85 milligrammes per millilitre of blood in terms of accidents caused, it is conceivable that 20 per cent of the population driving on the roads have a blood alcohol level of 85 milligrammes per 100 millilitres. It would then come as no surprise to see that level of accidents being caused. That would represent the population as a whole.
What I intended to say was that 20 per cent of the drivers killed were at that level.
However, the observation is still a legitimate one in terms of the caution that needs to be exercised with statistics.
In relation to scientific matters, we do not dispute the ability of the equipment to detect or measure accurately. We are also aware that the Garda are well trained and are competent in using this equipment. However, even they can make mistakes, especially in the case of breath testing, which involves exhaling, the length of time, etc. The equipment is only as good as the quality of the sample; it can only measure that sample. If the sample is defective so will be the result. The consequence of that could be that certain people, because of the mandatory nature of the sentence imposed, could be disqualified in circumstances where they might not have been under the earlier legislation.
The other aspect involves the question of enforcement. It frequently comes back to the legislation we pass in this House. While we pass legislation to ensure that law abiding citizens on our roads are protected, our capacity to enforce that law frequently does not match our commitment in introducing it and I am sure the Minister is as aware of that as anyone else in the House.
I will not deal with all the points made by the Minister but I will refer only to a few of them.
The Minister said this form of breath testing is now the norm in the UK and in Europe. If this is the case and the Minister accepts the norm in Europe on how prosecutions arising from these tests are dealt with, it would be easier for many of us to agree with him.
I take it that Senator Howard proposes to reduce the drinking limit from 80 milligrammes to 50 milligrammes.
If the Minister accepts the norm in Europe for breath testing, he must also accept that discretion for the courts and graded penalties are also part of that norm. Once the Minster has introduced the norm in Europe he should not pick and choose in order to dismiss contributions from this side of the House. There is discretion for the courts in European countries and higher penalties and if the norm was taken as a whole, we would be closer to agreeing with the Minister.
Senator Howard, you have an amendment to section 26 which deals with this matter.
I have, but I want to emphasise the fact that we have introduced this——
We do not want to refer to that on section 10.
We are now using the European norm, and I hope we stay with it.
I also want to refer to the statistics the Minister stated were available to him. As a legislator, I am disappointed he is concealing the source of that information. In my contribution on 10 December I asked him to make available to me and to other Members of the House whatever statistics were available to him. They have not been made available to me up to now and I do not think he intends to make them available. The Minister is only selecting certain statistics that suit his argument. That is unacceptable.
I also want to refer to the Minister's contention, if I understood him correctly, that 20 per cent of drivers killed have an alcohol concentration of between 80 and 100 milligrammes. If that is the case, that information came to the Minister since 10 December. He is on record as telling me then that he did not have that information available to him.
Nor did I give that information to this House today.
I withdraw that statement but that was my understanding.
May I ask the Minister where this information came from? The information given stated that 20 per cent of drivers killed have an alcohol concentration of between 80 and 100 milligrammes. Is that the information which has been given to the House?
It is in excess of 80 milligrammes.
If it is not, I withdraw it but I understood that to be the case. The statistic mentions cases "in excess of 80 milligrammes"; 400 milligrammes is in excess of 80 milligrammes. How many cases are in excess of 100 milligrammes? I asked for details of the number of people killed who have an alcohol concentration between 80 and 100 milligrammes for the purpose of seeing what justification there is for reducing the limit from 100 to 80 milligrammes. It is a smart use of statistics to say that 20 per cent of drivers killed have an alcohol concentration of above 80 milligrammes. Of course it is above 80 milligrammes; if it is 400 milligrammes it is above 80 milligrammes. What is the number of cases with an alcohol concentration between 80 and 100 milligrammes? I asked for that information in December. It was not available then and I can only assume it is not available today either.
I do not think we are going to have agreement on this because the Minister is going to proceed with this new addition and use the breath test alone. My understanding of the breath test as it works on the Continent and in Britain is that a person is stopped, he steps into a van and blows into a machine. He gives two breath samples and the lower one is chosen.
I listened attentively to what the Minister said about the different procedures that have developed over the years. He said that up to now an independent analysis of the blood or urine sample was carried out; it was tested twice and there was a tolerance of 6 per cent and so on. This separate and independent analysis is carried out in the bureau. There is also the added safeguard where a person can have their blood sample analysed in their own hospital or elsewhere. The testing of the urine sample is also a separate and independent procedure.
The Minister went on to say that the breath test is now the norm and is replacing blood and urine sample testing across Europe. If this becomes law, the courts will become rubber stamps. The garda will give evidence that the sample was in excess of a specified level, the judge would have no discretion and he would have to suspend the person's licence for two years.
Earlier I referred to the Matrimonial Home Bill which has been deemed unconstitutional by the Supreme Court. I made the further point with regard to the Criminal Justice (Public Order) Bill that the President felt it necessary to convene a meeting of the Council of State yesterday and will decide on Thursday whether it should be referred to the Supreme Court. When court decisions were challenged or appealed to the High Court and Supreme Court in the past, the Supreme Court made every effort to be fair and to ensure that every loophole was closed off. Many people have taken an active and positive interest in this. When any challenge was heard by the Supreme Court, in their wisdom and judgment, they did everything possible to eliminate all loopholes.
If one machine will decide whether a person should be permanently deprived of his livelihood, the Supreme Court will deem that to be unconstitutional. I forsee the President, who takes her duties seriously and who has done an exemplary job, calling together the Council of State and this legislation will also be deemed unconstitutional. I do not like saying that but the courts are being treated as a mere rubber stamp. Under section 26 a person can——
We are not on section 26; we are on section 10.
——be deprived of holding a driving licence.
I ask the Senator to confine his remarks to section 10.
He is allowed a passing reference.
In the past, there was all party agreement and co-operation to ensure that drunken driving, dangerous driving and misconduct on the road were not tolerated. There will still be co-operation but we do not want a Bill to go through this House and then have it referred to the Supreme Court because all the legislation we have passed will be put in jeopardy. I do not think the Minister wants that, and I certainly do not. We should be careful because our courts have been exemplary to date in enforcing these Acts.
We are trying to improve the law and we can achieve that with co-operation. I am as anxious as the Minister is to improve the legislation. The Minister said there are lobbies for particular interests. I do not think anybody here is lobbying for any particular interest. I am not and I do not think this is even worthy of mention but it has been commented on by the Minister.
We should take account of the structure of this country which has a widely dispersed rural population. A social outlet is part and parcel of life. We are introducing a breath test where the decision on a person's future is left to a machine. A husband and wife may be out celebrating their anniversary and have one bottle of wine between them. On their way home they may be stopped and breathalysed and the husband may lose his job; people go out for a game of cards or a drink or two. Legislation must reflect common sense and it is essential that we keep this in perspective.
We can cite examples from Europe or Britain until the cows come home but we achieved independence many years ago. Europe has its own way of dealing with matters; as Senator Howard pointed out, the Judiciary can exercise discretion in Europe but there is no discretion here. We should be careful about allowing a machine to decide a person's future.
The Senator has got a fair bit of latitude. We are getting into repetition.
I ask the Minister to carefully consider introducing the breath test because this is very serious.
I would remind Senators that we have spent about an hour on this section, and I ask the Minister to conclude.
I am grateful to the Seanad because, despite the difference of opinion that has emerged on the section, there are no amendments requesting me to change the limit from 100 milligrammes per 100 millilitres to 80 milligrammes per 100 millitres. I welcome that because in the other House I was asked to increase it from 100 milligrammes upwards; to come from 100 milligrammes to 50 milligrammes, and to go from 100 milligrammes to an absolute ban. Members here are proving to be more solid in terms of accepting that we have to make changes. We are making changes and there are good reasons for doing that. Apart altogether from European and international experience, we know the realities.
Inadvertently or otherwise, a campaign has developed saying that this Minister for the Environment is bringing in mandatory disqualifications. The first time we had mandatory disqualification for drunken driving was in 1933. There has been a careful orchestration in recent times to suggest that this measure is something new. Some of the aspects of mandatory disqualification were suggested in a recent article by an eminent member of the judicial profession to be something new, although they were first introduced in 1968 and have gone unnoticed by some people in the legal profession since.
Let us put one thing straight. I am not introducing mandatory disqualifications. They have been part and parcel of the law in this area for a very considerable time and the effort on the part of the illustrious member of the legal profession, the honourable Senator from Birr, is not going to change that. It is very nice to talk about these circumstances in which people find themselves and to try to get me to prove there is absolute evidence to move from 100 milligrammes to 80 milligrammes. I have said publicly, and I say it again here, that neither I nor anyone else can prove the exactitude of these figures beyond making a judgment that in the circumstances and having regard to the available evidence we have to strengthen the law. There is no safe limit and if we are to be guided by international experience and some of the statistics we have, there is little or no choice but to take that action.
Senator Cosgrave asked where we are in the league of the other European countries. Before these changes are made we are the only European country with a tolerance of 100 milligrammes per 100 millilitres. When we move to 80 milligrammes, we will join Belgium, Denmark, Luxembourg, France, Germany, Italy, Spain and the UK. A lower limit of 50 milligrammes applies in Greece, the Netherlands and Portugal. In a number of eastern European countries the level is 20 milligrammes per 100 millilitre of blood and one or two have zero rating. At present we have the highest level and when this change is made we will be in the group with the highest level.
With regard to evidential breath testing, I disagree with Senator Enright. He seems to be of the opinion that we are making a dramatic change here which will change the position as far as the courts are concerned. The existing system will continue. Side by side with that the evidential breath testing system will be developed. Assuming that after the initial test period that system, from which no prosecutions can be made, produces evidence of its accuracy, the legal framework to continue with the process which is now being instituted will already be in place. I have no doubt that this will happen but if, in the meantime, anything should happen to disturb that in terms of its clinical accuracy, that will be a matter for another day.
We are not making a dramatic change or bringing a lot of uncertainty into this area. The new system will join the existing one and will go through its trial period. If it meets all the criteria and stands up to a rigorous test in any examination of being as accurate and as fair as the existing system, then there is no reason to continue the old system because of the nature of the test, the difficulties associated with it and the involvement of the medical profession.
Senator Howard is asking me to adopt the same kind of laws that are in force in Europe in relation to this matter. I do not seriously think Fine Gael are proposing that we would weaken existing laws on road traffic offences involving drink and driving, hit and run, etc. That is not really what he would want but that is the implication. I am not bringing legislation to this House to deal with what is a stubborn problem as far as a hard core of individuals is concerned which would weaken existing laws. We have to strengthen those laws to make them more effective.
I assume that is the last we will hear about the European norm. It was useful to make one point but it has been discarded so far as it affects other areas.
That is not a logical argument. We must take the best wherever it is to be found and reject the rest.
We have gone through four of the subsections in section 10. I wish to move to the other subsections. I do not know whether they will be as controversial but I want to get clarification from the Minister on——
On which subsection?
Subsection 5 (a) reads:
The Minister may, by regulations made by him, vary the concentration of alcohol for the time being standing specified in subsection (2), (3) or (4) of this section, whether generally or in respect of a particular class of person,....
It is this particular class of person I am concerned about, because a totally new dimension is being introduced here. Heretofore the same concentration applied generally but now we will have a particular class of people treated differently from others. I would like an explanation. Subsection 6 (b) reads:
A person charged with an offence under this section may, in lieu of being found guilty of that offence, be found guilty of an offence under section 50 of this Act.
There are eminent members of the legal profession here as the Minister said, but I always understood there was a fundamental legal principle dealing with double jeopardy. The Minister is asking us to charge a person with one offence and if he is not convicted of that offence, they can convict him on another offence with which he has not been charged. I would like clarification of these points.
The Minister said he intends building confidence in the system for a trial period of two years; this would be acceptable but I am concerned that we are passing legislation with which the Minister is not happy. Although I am not worried about blood and urine testing, I am concerned about breath testing because of the way the overall legislation is framed.
In relation to Senator Howard's query, subsection (6) (b) is a re-enactment of the same provisions of the 1978 Act. Subsection (5) allows the Minister to vary by regulations the levels of alcohol permitted in a driver's blood, urine or breath. It prescribes different limits in respect of particular classes of persons, for example, holders of provisional driving licences, etc. Regulations made under this subsection shall be subject to prior confirmation of both Houses of the Oireachtas.
About what class of vehicle is the Minister talking?
Vehicles could carry dangerous loads; these matters must be considered. Such classification is done in many other places, but changes may only be made with the prior approval of both Houses of the Oireachtas.
Is this a new development?
Yes. It is clear that Senator Enright is worried about this change. I am not suggesting a trial period because I am unhappy with something but because it is a safe way to establish something new. The Senator in his other profession would advise me to act in that way.
I agree with a considerable amount of this section and I welcome the fact that intoxicants have been mentioned. At present, the Minister is in charge of the Department of the Environment and I wish him health and happiness there. Regardless of which Minister is in charge, they will be entitled to bring in regulations and to vary the concentration of alcohol for a specified time. I do not believe in giving a person a blank cheque. For that reason, I must disagree with the Minister on this matter.
The Senator does not believe in giving a blank cheque, but I am sure he has no problem accepting one.
It depends from who one is getting the cheque.
One must have confidence in the democratic system. We cannot make any changes by regulations without the prior confirmation of both Houses of the Oireachtas. That is the best safeguard we have.
The bottom line is that we must have confidence in the democratic system. This legislation is doubtful and that means it will restrict judicial procedures at a later date.
- Belton, Louis J.
- Byrne, Seán.
- Calnan, Michael.
- Cashin, Bill.
- Cassidy, Donie.
- Daly, Brendan.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Gallagher, Ann.
- Hillery, Brian.
- Kelleher, Billy.
- Kelly, Mary.
- Kiely, Dan.
- Kiely, Rory.
- Lanigan, Mick.
- Lydon, Don.
- McGennis, Marian.
- McGowan, Paddy.
- Magner, Pat.
- Mullooly, Brian.
- O'Brien, Francis.
- O'Kennedy, Michael.
- O'Sullivan, Jan.
- Roche, Dick.
- Townsend, Jim.
- Wall, Jack.
- Wright, G.V.
- Belton, Louis J.
- Cosgrave, Liam.
- Cotter, Bill.
- D'Arcy, Michael.
- Dardis, John.
- Doyle, Joe.
- Farrelly, John V.
- Henry, Mary.
- Honan, Cathy.
- Howard, Michael.
- Naughten, Liam.
- Neville, Daniel.
- Norris, David.
- O'Toole, Joe.
- Quinn, Feargal.
- Reynolds, Gerry.
- Ross, Shane P.N.
- Sherlock, Joe.
- Taylor-Quinn, Madeleine.
This section deals with the prohibition on being in charge of a vehicle while under the influence of an intoxicant. A number of subsections are littered with the phrase "intent to drive... but not driving or attempting to drive". It is a question of intent. How does one prove intent? Does the opinion of the garda in such a situation prove intent?
On Second Stage I told the House about a farmer who visits my premises at the weekend. He drops his son in town and drives to my premises. He has a few drinks and goes out to sit in the car until his son arrives and drives him home. Under this section that unfortunate man is guilty of a serious offence by simply sitting in his car to wait for somebody to collect him and drive him home.
The Minister finds this amusing.
I can see why the law and order party is in shreds.
That is wishful thinking.
This provision is in the 1978 Act. There has been no change.
Everybody will have a chance to contribute and the Minister will have the opportunity to reply.
The Minister cannot afford to talk about shredding. He did very well when his party was shredded.
The Senator should keep cool.
There is a plan being shredded at present.
I am not concerned with whether the provision was in previous legislation.
Do not try to say it is a new provision.
It has been produced in this Bill and we are being asked to endorse it.
This is the old strategy of pretending something is new.
The Minister will have an opportunity to reply.
I am endeavouring to be helpful. I seek clarification of this provision. Like other Members I am asked to endorse this section. Another example is the person who feels unwell. What is that person to do, sit by the side of the road on the ditch? Under no circumstances should he sit in the car for shelter. I am asking the Minister to establish how one can prove intent.
Section 11 of the Road Traffic (Amendment) Act, 1978, states:
A person shall be guilty of an offence who, when in charge of a mechanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle (but not driving or attempting to drive it), is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle.
I will not play with words or pretend that this legislation comes down to explaining what a person's intentions are when they are obviously in charge of a mechanically propelled vehicle while intoxicated. That reduces the debate to a level I would not have expected. This provision has been in place for a long time. One could ask if the gardaí, in the interests of safety, should take no action in such circumstances. Should they pretend that somebody who is obviously intoxicated may not get the vehicle to start? What should they do?
I am not introducing a new provision. I am endorsing an existing provision which is working. I fail to see why it is necessary to attempt to make that appear to be anything other than a genuine effort to deal with a problem.
I did not suggest that we were playing around with words. I asked the Minister to establish to the satisfaction of the House how to prove that there is an intention to drive. The Minister did not answer my question.
The new section 50 (6) (b) of the Principal Act refers to a matter I raised when discussing the previous section. It states:
A person charged with an offence under this section may, in lieu of being found guilty of that offence, be found guilty of an offence under section 49 of this Act.
During the discussion on section 10 I told the House I was unhappy with a provision where a person who is charged with one offence and found not guilty can apparently be found guilty of another offence, although he was not charged with that offence.
I am also concerned with the implications of section 50 (7) of the same Act which states:
Section 1 (1) of the Probation of Offenders Act, 1907, shall not apply to an offence under this section.
We will return to this issue when discussing later sections of the Bill. I will oppose provisions in this or any other legislation which interfere with the independence of the courts. It makes a judgment in relation to future cases and indicates, on the part of the Minister and the Government, a lack of confidence in the capacity and independence of the Judiciary to discharge its specific functions as outlined in the Constitution. If we talk, as we did earlier, of what is the norm in Europe we should be as attached to it when it comes to the discretion of the courts as we were when we discussed other aspects earlier.
The Minister did not deal with my question as to how to prove intent to drive, but it is his prerogative if he does not want to deal with it. I am unhappy that a person can be charged with one offence, be found not guilty but be found guilty of another offence with which they have not been charged. I oppose and reject the interference with the independence of the courts.
Would the Minister indicate what is legally meant by being in charge of a mechanically propelled vehicle? We could take the example Senator Howard gave of someone who has a few drinks, is over the limit as prescribed in the Bill and sits in the passenger seat of a vehicle. According to the legislation would that person be deemed to be in charge?
As I have explained, I have no intention of weakening the existing law relating to people being in charge of mechanically propelled vehicles while intoxicated. The provisions which are being argued here by Fine Gael are of long standing in our legal system. It is clearly a matter for the discretion of the garda, from his or her training, and from our legal system to act in accordance with what is best practice. It would be absurd for this House to try to detail the circumstances which might be involved.
Senator Howard raised a question with regard to my party or the Government not having confidence in the courts. This seems to subscribe to the recently stated view that this legislation has aspects to it with regard to mandatory disqualification which are new. Mandatory disqualification for drunken driving was first established in 1933 and has been enshrined in subsequent Acts in 1961, 1968 and 1978. It is not new. It is a matter which was dealt with in the High Court and the Supreme Court some years ago. When it was sought to be established that the question of disqualification was a punishment which should be a matter for the discretion of the courts, the Supreme Court decided that disqualification was not a punishment; rather it was the exercise by regulation of a statutory right in the interests of public order and safety. That is how the Supreme Court, the highest court in the land, dealt with this issue.
We should refrain from making suggestions which seem to attack the Government or, in this case, the Minister for the Environment, for introducing something new but which is already enshrined in legislation, or saying that it takes discretion from the court when the Supreme Court has already adjudicated on the matter. It should also be taken into account that the Houses of the Oireachtas consider this such a serious matter that, in order that there would be a level playing field, that nobody could argue that they could be exempt because of financial or other resources, everybody was to be treated the same.
I am satisfied that in the context of this legislation re-enacting those successful parts of previous experience is the right thing to do. The worst possible signal this House could attempt to put out is that we are weakening in our resolve to deal with this issue or that we are trying to find a way to weaken existing law, not to mention the provisions we are trying to improve. I am not saying anybody in the House is setting out to do that deliberately, but if we seek to reduce in status or to amend or weaken what is already established successful legal practice in this area, we are not going down the right road.
I want to take issue again with the Minister on what he suggested the Supreme Court implied by its decision. The Supreme Court decision to which the Minister has referred established that it was not unconstitutional for the Houses of the Oireachtas to bring in mandatory sentences. That is not my argument. My argument is that because the circumstances of each case vary it is the judge or jury, hearing all the evidence, who are best equipped to make a judgment.
If we were to accept the line the Minister is taking we could eliminate the entire judicial system and prescribe mandatory penalties for every conceivable offence. There would be no need for courts, judges or the legal profession. If the Government wishes to go the whole way and take that course of action, if it is prepared to accept that in most circumstances the facts of each case are for adjudication by a judge or by a judge and jury, if this is applied in one set of circumstances it should be applied in all.
It is not a question of suggesting that the Supreme Court said the Oireachtas was right to do this in relation to drink driving offences. The Supreme Court said it was permissible for the Oireachtas to decide on the imposition of mandatory sentences. The sledgehammer approach is being used here. We are saying this is the one sentence to be applied without the prevailing circumstances in any case being taken into consideration. That is in conflict with the principle and understanding of the judicial system as we know it.
Senator Howard is not giving the full picture because there is discretion in the court, although not on all aspects, of what the maximum penalty could be in a particular case. He has identified the area of disqualification but it does not stop at that; there is discretion in certain circumstances. Under the section: "A person guilty of an offence under this section shall be liable to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 6 months or to both." That means the fine can be less than that figure and the court and the judge can play their part and have an independent say. Senator Howard may not be giving the full picture and in a debate such as this it should be given.
To say that new provisions in this Bill are being introduced by the Minister now is to mislead the House to some extent, because some of those provisions have been on the Statute Book for up to 30 years. We should be given the full facts. The discretion of the courts is allowed in certain circumstances. Therefore the Senator's point that there is no need for a court or a judge does not stand up.
I wish to make sure that what I have said is understood. I am not weakening the legislation by going back over well travelled ground. This has been understood and operated by the courts for a long time. It is now suggested I change that. It is unfair of Senator Howard to suggest that even if we do make changes that does not leave a discretion with the court.
Senator Finneran has reminded us that if a garda comes across circumstances outlined in this provision, that is not the end of the matter. That case has then to go to court and be argued. It will be dealt with on its merits and there will be an opportunity for the person involved to defend himself. It stretches credibility to suggest the court has no discretion in circumstances where it has to hear the full case and decide, and where both sides have full freedom to make their cases.
If that is the case why does the Minister not remove section 11 (7) (1)?
This is a re-enactment of existing legislation. I have already said that in no circumstances will I weaken the existing law.
There is nothing wrong with this House reviewing law, no matter what its standing. This legislation upgrades existing law and if we find a defect it should be debated. My concern is not with the provisions on mechanically propelled vehicles, it is with subsection (5) (a) which states:
The Minister may, by regulations made by him, vary the concentration of alcohol for the time being, standing specified in subsection (2), (3) or (4) of this section, whether generally or in respect of a particular class of person...
What is the point of establishing these criteria if the Minister is allowed to alter them almost at will? In the Minister's view, what would be a particular class of person subject to a modification of the regulations on the concentration of alcohol? Would it involve ill people?
I echo Senator Dardis's comments. Those of us taking the legislation seriously are entitled to examine it and ask questions. I hope no one would deny us that right.
I also ask the Minister to clarify subsection (5) (a). In the Dáil a party colleague of the Minister asked that there be a two tier system, one in Dublin and other urban areas and a different one in rural areas. That should not be allowed.
I appreciate there are difficulties involved. Much of this legislation has stood the test of time. However, like some old legislation and some more recent Bills, there are problems now and further ones may arise. I ask the Minister to clarify what is intended in the regulation under this subparagraph.
The answer to Senator Dardis is that this is not an unfettered freedom. These regulations would have to get the prior approval by confirmation of both Houses of the Oireachtas; this means they would have to be debated. We will have to think about which classes may be subject to change and resolve the matter to our satisfaction. One which immediately comes to mind is persons in charge of dangerous substances where the nature of their work and the consequences of an accident would be horrific should they be under the influence of alcohol.
In answer to Senator Cosgrave, there is no relation between this provision and a proposal made in the Dáil to have different regimes in rural and urban areas. My task up to now has been similar to Solomon's. I have been asked to reduce the figure and to increase it; I have been asked to safeguard rural social life and undertake many other matters. I make no pretence to having such capacity. We have tried to reach the best balance.
I may have misheard the Minister on the monitor but he seemed to say this provision was similar to section 50 of the Principal Act. It is not.
What precisely is not the same? The question I was dealing with was the intent to drive or being in charge of a vehicle.
There is no change of the intent to drive but there is a variation in that under section 50 of the Principal Act the judge had discretion whether to impose a suspension but there is no discretion in this Bill. Senator Howard said someone could be attending a function in a ballroom and not feel well and he might sit in a car before returning to the function. Someone might approach a car with the intention of obtaining something from it. There are many examples that could be given. There was tolerance and when a person was not actually driving the judge had discretion whether to suspend. In this instance, the judge has no discretion. Subsection (8) states that in a prosecution "it shall be presumed". After a presumption, a person goes before a court, having been breathalysed, and they are automatically suspended. The Minister should not proceed with an automatic mandatory disqualification. This section extends this area considerably. I agree with a great deal of what is in the section but it should not be mandatory. A judge should be able to make up his mind taking the relevant circumstances into account. A person may be approaching a car to get some item from it. This Bill takes matters a gigantic step further because it presumes a person will drive, they will be breathalysed and then disqualified. I am against subsection (4) and I am against a mandatory disqualification.
I will again go over the ground I have already covered. It is incorrect to assume, although there is power in the Bill in circumstances outlined by Senator Enright, that the courts have no discretion. As I explained a case revolves around a garda coming upon certain circumstances. In turn the case ends up in court where there is an opportunity for both sides to state their positions. The court hears both sides and then makes up its mind which course of action to take. If the court decides to convict, it does so on balance and on the basis that the evidence was strong enough to suggest that the person was definitely in charge and intending to drive. It is at the total discretion of the court. It decides on the evidence. If it decides on a conviction, the automatic disqualification then comes into play; it is not automatic until the court has heard the case. Do we trust the courts to make decisions on the basis of the evidence put before them?
Regarding the Minister's last remark about trusting the courts and giving them the discretion to make decisions, I presume the Minister will be happy to accept my amendment on a graded scale of penalties. I am putting down that marker.
We will come to that later.
I ask the Minister to explain subsection (9). What type of carriage? Why is this subsection necessary?
This is a re-enactment of existing, well operated, established and recognised legislation. For the umpteenth time, in my own defence, the fact that this is before the House is nothing to do with any wisdom of mine. It is the tried and true position which is accepted on all sides. It provides that a person charged with an offence under this section shall, not in relation to the same offence, be liable to be charged under section 12 of the Licensing Act, 1872. Section 12 of that Act makes it an offence to be intoxicated on a highway or other public place while in charge of a carriage. We can give the Senator a copy of this section if it would help him.
We should trust the courts.
We should not make this offence mandatory.
- Bohan, Eddie.
- Byrne, Seán.
- Calnan, Michael.
- Cashin, Bill.
- Finneran, Michael.
- Fitzgerald, Tom.
- Gallagher, Ann.
- Henry, Mary.
- Hillery, Brian.
- Kelleher, Billy.
- Kelly, Mary.
- Kiely, Dan.
- Kiely, Rory.
- Lanigan, Mick.
- Lydon, Don.
- McGennis, Marian.
- Cassidy, Donie.
- Daly, Brendan.
- Dardis, John.
- Farrell, Willie.
- McGowan, Paddy.
- Magner, Pat.
- Mullooly, Brian.
- Norris, David.
- O'Brien, Francis.
- O'Kennedy, Michael.
- O'Sullivan, Jan.
- O'Toole, Joe.
- Roche, Dick.
- Wall, Jack.
- Wright, G.V.
- Belton, Louis J.
- Cosgrave, Liam.
- Cotter, Bill.
- D'Arcy, Michael.
- Doyle, Joe.
- Enright, Thomas W.
- Farrelly, John V.
- Howard, Michael.
- McDonagh, Jarlath.
- Naughten, Liam.
- Neville, Daniel.
- Reynolds, Gerry.
- Ross, Shane P.N.
Section 12 (1) states: "Whenever a member of the Garda Síochána is of the opinion that a person in charge of a mechanically propelled vehicle in a public place...." If a garda does not have the breathalyser equipment with him, the person is obliged to remain at that spot for one hour while it is sent for. Will the Minister clarify that after one hour the person is free to drive the vehicle? What is the position in regard to a person a garda considers to be under the influence of alcohol or an intoxicant after one hour has elapsed and the equipment has not arrived at the scene? Perhaps the Minister will explain subsection (4), which states:
In a prosecution for an offence under this Part or under section 49 or 50 of the Principal Act it shall be presumed, until the contrary is shown, that an apparatus provided by a member of the Garda Síochána for the purpose of enabling a person to provide a specimen of breath pursuant to this section is an apparatus for indicating the presence of alcohol in the breath.
Are we speaking about the same instrument we spoke about in section 10 which could provide evidence to obtain a conviction under this legislation? What is the position if the apparatus does not arrive within one hour despite the fact a garda is of the opinion a person is under the influence of alcohol and unfit to drive?
In reading the history of road traffic law I was surprised at the extent people will go to avoid conviction or prosecution. The case which Senator Howard touched on, where a garda was unable to get the breathalyser equipment in a period of approximately four minutes, went all the way and it was decided the person concerned was unlawfully held for that time. In this legislation I sought to ensure it would not be possible for somebody in charge of mechanically propelled vehicle while intoxicated to avoid or evade lawful prosecution and conviction — if a court so decides — by giving a longer period in order to facilitate a garda in circumstances where it is deemed necessary to provide a breathalyser.
There are circumstances where a garda may not have the apparatus. I do not want to say what would happen after one hour because if the security system and the garda system are working well no such circumstance could be brought before me. As far as this section is concerned, I am not sure if a person may go free after one hour. Obviously, further steps may have to be taken if it involves time. We must face the determination of some people to avoid prosecution. I have sought to avoid a situation where a person could be deemed unlawfully detained during the period the garda gets the apparatus.
This should not be compared to or should not be interwoven with the problem Senator Enright raised in regard to evidential breath testing. In those circumstances the breathalyser is used at the side of the road, for example, and the person concerned is then brought to a Garda station for urine or blood testing until the new facility is being put in place. These should not be linked together. Although I am not a legal expert, I am entitled to change this if a person is intoxicated while in charge of a mechanically propelled vehicle, but a court decides that person has been unlawfully held while a garda gets the apparatus to prove it.
We support this section. This situation may arise where an off duty garda comes across an accident where somebody is obviously drunk, but he does not have the apparatus to test this individual. This section is reasonable and one hour is a sufficient period of time, because most incidents occur close to a garda station where this apparatus may be obtained. This section will improve and strengthen the situation when it is obvious to a garda that a person has consumed alcohol. I would not like to see the one hour limit extended to two or three hours because it could cause problems.
A specimen must be provided within three hours of going to a Garda station. Perhaps the Minister will clarify this. Does this include the one hour period while a person waits for the apparatus? I do not raise this in a contentious way because we support this section.
I presume the three hour period is after that time because it is from the time the specimen is taken.
In this case the one hour period is included in the three hours.
If a member of the Garda Síochána comes across a person who is intoxicated while in charge of a vehicle and does not have the apparatus, there is a danger this person might drive off after one hour. Is there a provision in this legislation to bring this person to the Garda station to carry out the proper test with a breathalyser, etc.? I am not anxious to become involved in circumstances where a garda notices a problem and an hour later has not put anything into execution. I would lose faith in the system if this were possible.