Skip to main content
Normal View

SELECT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate -
Wednesday, 19 Apr 2006

Criminal Justice Bill 2004: Committee Stage (Resumed).

SECTION 11.

The amendments to amendment No. 64 will be discussed with amendment No. 64.

Debate resumed on amendment No. 64:
In page 15, after line 49, to insert the following subsection:
"(3) An authority undersubsection (2) may be given orally but, if it is given orally, it shall be confirmed in writing as soon as practicable.”.
—(Deputy McDowell).
Section 11 provides for photographing arrested persons. One of the motives in so doing is to assist in the identification of such persons in the event that they are released but subsequently summonsed or charged before the courts to ensure there is a record of the person with whom the Garda was dealing. The amendment proposes to insert a new subsection (3) to clarify that the authority under subsection (2) to photograph an arrested person may be given orally but, if given orally, shall be confirmed in writing as soon as practicable. This replicates other provisions such as section 4(3)(c) of the Criminal Justice Act 1984.
With regard to Deputy Jim O'Keeffe's first amendment to the amendment, subsection (2) already refers to a member of the Garda Síochána not below the rank of sergeant and, as such, a sergeant or higher officer will direct that a photograph be taken. Regarding both amendments to the amendment, the second of which proposes to remove a comma, the Parliamentary Counsel has indicated a preference to rely on the existing text and the provisions of subsection (2).

I move amendment No. 1 to amendment No. 64:

After "orally" to insert "by a member of an Garda Síochána not below the rank of sergeant,".

Both my amendments to the amendment are of a technical rather than substantive nature. I ask the Minister and Parliamentary Counsel to consider whether the first of these provides greater clarity. The second amendment to the amendment is purely technical in nature and would ensure the text reads better.

I do not see the reason for a song and dance about the provision allowing for the taking of photographs. Closed circuit television should be fitted in every Garda station and everybody should be on record. Given that the taking of photographs appears to create a civil liberties issue, the protections in the section go as far as is reasonably necessary in the circumstances.

I am ad idem with the Minister on the issue of the photographs and find no reason they should not be taken. Nevertheless, the purpose and requirements of each section should be clear to practitioners and members of the Garda Síochána who refer to the legislation. Members of the public become irritated when those against whom there is considerable evidence of crime are able to resort to technical defences. The purpose of many of the amendments I have tabled is to ensure that gardaí who consult the Bill will be clear about the requirements under which they operate when carrying out their duties under its provisions. This would contribute towards the elimination of technical defences. Members of the public are driven mad when they see individuals walk out of courts on technical grounds when all the evidence points to their guilt.

Now that we live in an era in which most of us carry around a camera phone, I envisage the day when gardaí investigating disorder will, when asking somebody for his name and address, be able to take a photograph of that person so they will know who they are dealing with afterwards. Somehow it will be possible to send this photograph back to base digitally so it might be kept on record. I do not feel this is a major civil liberties issue. However, that is not today's business. It appears we will soon get to the point where every squad car will have a mobile computer that will allow gardaí to communicate directly with their station. The Deputy's proposal seems a tiny bit Victorian or Edwardian.

I will not press the amendments. I merely leave them for further consideration by the Parliamentary Counsel if he or she considers them useful.

I am in agreement with the Minister in that I see no civil liberty issue in the taking of people's photographs. The Chairman will remember there was much debate at this committee on the comprehensive video-taping of all interviews. Approximately 95% or 96% of interviews are recorded at present. Will the Minister correct me if this figure is wrong? It has taken the bones of seven, eight or nine years to get to this level from the position that obtained under older legislation many years ago.

I am encouraged by the Minister's reference to technology being available to assist gardaí on the street but I am not encouraged by the pace of real change needed to provide for the assistance and technologies required by gardaí to match the changes of the 21st century.

It states in the legislation that a photograph can be used only in connection with the offence being investigated. Let me be devil's advocate for the civil liberty group and ask what happens if another offence is committed in the future. Can the Garda use the photograph pertaining to the first offence and ask whether people have seen the person depicted? Is there some way in which photographs can be retained?

The provisions of the 1984 Act, to which I take it Deputy Howlin was referring, provide that the photographs must be destroyed within six months. In 1984 the idea of arrest for the purpose of interrogation was regarded as a quantum leap in police powers. I have never been impressed by the idea of the destruction of samples, prints and photographs and I accept that we will need to revisit this issue in the context of the DNA legislation later this year. The US authorities have an elaborate concept of civil liberties and under their system, fingerprints obtained at murder scenes can be compared with those in huge databases, including records of military personnel.

I have no problem with fingerprints or DNA. However, for the Garda to go on a fishing expedition with photographs that may or may not depict the offender just because somebody has in the past committed an offence——

Arrested for an offence.

Or arrested. DNA is proof in itself and should be held indefinitely, as should fingerprints, but photographs are a different matter.

I thought we were approaching it from a different direction. I thought the Chair was wondering why such a photograph should not be available for identification for something other than the offence.

No. I miss Deputy Costello.

The Chairman is a true radical.

The Chairman has detected a subtle change already.

Amendment to amendment, by leave, withdrawn.
Amendment No. 2 to amendment No. 64 not moved.
Amendment agreed to.

I move amendment No. 64a:

In page 16, subsection (3), line 7, to delete "is" and substitute "has been".

This is another amendment dealing with the historical sense. Grammatically, the use of the expression "has been" is better.

The amendment has already been discussed and will be referred to the Parliamentary Counsel.

I am happy with that.

Amendment, by leave, withdrawn.
Amendment No. 65 not moved.
Section 11, as amended, agreed to.
SECTION 12.

I move amendment No. 66:

In page 16, between lines 16 and 17, to insert the following:

"(a) in section 3, by the insertion of the following new definition:

""photograph" means any image (pixelated or otherwise), photographic negative, fingerprint or palm print, howsoever stored, whether in physical or digital form, from which a specific person can, in any way, be identified;".".

This is an amendment to the 1984 Act. Since 1984, advances have been made in many areas, especially photography. Most cameras these days tend to be digital. The definitions contained in the 1984 Act may not encapsulate these modern developments. The amendment will improve the Act by inserting a new definition for photographs. It takes into account advances in the digital photography area.

I appreciate the motive behind Deputy Jim O'Keeffe's amendment. There is, however, a difficulty in that section 6 of the 1984 Act deals separately with photographs, fingerprints and palmprints as separate powers that can be employed against a detained person. In these circumstances, amalgamating the concept of photograph, fingerprints and palmprints would complicate other sections of the 1984 Act. It would fuse two concepts in one area where they are separate in the 1984 legislation. I prefer to consider the amendment further because it requires further amendment of the 1984 Act.

I am also not sure about the term "pixelated", as it is written in the amendment.

It refers to the dots that comprise a digital photograph.

I thought it referred to the obscuring of an image, such as a face.

Yes, a series of dots over parts of a photograph.

It has nothing to do with people in hats and the like.

It has nothing to do with fairyland. I take the point made by the Minister. I suppose it shows the difficulty in trying to modernise old legislation. On the basis that it might cause more complications than it would resolve, I withdraw the amendment for the time being.

Amendment, by leave, withdrawn.

Amendments Nos. 67 and 68 are related and may be taken together.

I move amendment No. 67:

In page 16, line 17, to delete paragraph (a) and substitute the following:

"(a) in section 6, by the deletion of subsection (4) and substitution with the following:

"(4) Any person who—

(a) obstructs,

(b) attempts to obstruct,

(c) fails or refuses to give his or her name and address when demanded to,

(d) gives a name or address that is false or misleading to, or

(e) fails to obey the reasonable demands of,

any member of an Garda Síochána or any other person acting under the powers conferred by subsection (1), shall be guilty of an offence and shall be liable, on summary conviction—

(i) to a fine not exceeding €3,000 or

(ii) to imprisonment for a term not exceeding 12 months or

(iii) to both.".".

This amendment seeks to ensure that those who refer to legislation have a clear concept of what is involved. The purpose is to adopt the ministerial amendment and strengthen it somewhat in terms of increasing the fine, but mainly to rewrite and re-order and create greater clarity in the layout of the subsection so that it can be clearly understood by anybody who refers to it. It is technical in the sense that it is for clarification rather than providing for any substantive change.

There is a quantum change in amendment No. 68.

That is my amendment.

I notice that amendment No. 68 still refers to punts. It seems odd to be including a punt supplement.

Section 12 (c) refers to €3,000 with regard to a figure of £1,000. That is on line 27 of page 16. We discovered in the meantime that the figure of £1,000 provided for in the 1984 Act had been increased to £1,500, so we are merely being technically correct. We are not using figures in punts, but amending the deleted figure.

That clarifies the matter.

With regard to amendment No. 67, this is a drafting matter. The subsection which it is supposed to get rid of reads as follows:

Any person who obstructs or attempts to obstruct any member of the Garda Síochána or any person acting under the powers conferred by subsection (1) or who fails to give his name and address when demanded, or gives a name and address which is false or misleading, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both.

It is a single paragraph, and Deputy O'Keeffe's draftsman is trying to disaggregate it into a series of subclauses with brackets. On this occasion I prefer the original draft because the alternative proposed looks intimidating, if I may say so. It is a question of drafting style, but we are talking of doing the same thing.

Yes, it is very stylistic. The advice I am given is that this makes it much clearer but I will not push the point. I hope the Parliamentary Counsel is listening to every word and nuance emerging from the committee.

For Deputy Howlin's information, it was generally agreed at the last meeting that there should be consistency through all legislation and a book should set out the precedents agreed.

Yes, for drafting. We want it published.

That would be a desirable objective.

I understand such a manual is available to public servants, but is not yet placed in the public domain or made available to Opposition spokespersons.

We have enough on our plate at the moment.

Maybe not. If we are all singing off the same hymn sheet and had an agreed house style, we would not have debates like this.

It may be useful to make it available.

Is there still a problem getting draftsmen? In my time, we recruited people to draft legislation here who had experience in other jurisdictions. I do not know if there is a school for draftsmen.

King's Inns has a course on drafting, which we discovered recently. There are still foreign draftsmen retained as consultants in the Office of the Attorney General. I was loitering in the hall the other day and I noticed that one of them had a nameplate on the door.

I am not sure if the drafting course in the King's Inns is for legislation.

It is designed for legislation.

Amendment, by leave, withdrawn.

I move amendment No. 67a:

In page 16, paragraph (b)(i), line 20, to delete “twelve” and substitute “12”.

For Deputy Howlin's information, amendments Nos. 67a and 67b are stylistic in nature. All recent legislation includes numbers in numerical rather than word form. It is much more readable but I understand that this is the modern trend in draftsmanship.

It is a manual matter which we have already raised.

Amendment, by leave, withdrawn.
Amendment No. 67b not moved.

I move amendment No. 68:

In page 16, paragraph (c), line 27, to delete “£1,000” and substitute “£1,500”.

Amendment agreed to.
Section 12, as amended, agreed to.
SECTION 13.

Amendments Nos. 69 to 71b, inclusive, 72 to 74, inclusive, and 292 are related and may be taken together. Amendments Nos. 71a and 71b are alternatives to amendment No. 71. Amendment No. 73 is an alternative to amendment No. 72.

I move amendment No. 69:

In page 16, paragraph (a)(i), after line 44, to insert the following:

"(IV) in paragraph (e), by the deletion of “or mouth”.”.

My amendments seek to clarify some aspects of section 13 of the Bill, which amends the Criminal Justice (Forensic Evidence) Act 1990. Work is under way in the Department on the preparation of a Bill to establish a DNA database following the publication of a report on that matter by the Law Reform Commission. The provisions in this Bill are therefore limited to dealing with certain matters needing attention now pending the enactment of the more comprehensive legislation. My proposals in section 13 are designed to update the 1990 legislation to reflect some important developments in DNA sampling. They reflect the position that mouth swabs or plucked hairs will now be sufficient to provide the necessary DNA information in nearly all cases. At this stage, I do not propose any change in the provisions of the 1990 Act on consent. The current provisions are adequate and any proposals for consent should await the new DNA database Bill.

Our focus should be facilitating the increased use of DNA sampling. My proposals to reclassify mouth swabs as non-intimate samples will facilitate greater use of DNA sampling, but I do not believe that they impinge unreasonably on rights of privacy or bodily integrity. I am mindful of those rights at all times. However, further restrictions for the purpose of giving consent, by way of new procedures, which would be required by Deputy Ó Snodaigh's amendment, are not required by the changes introduced in the Bill.

Amendment No. 69 proposes the deletion of "or mouth" from section 2(1)(e) of the 1990 Act. This is a consequential amendment arising from the provision in section 13 that mouth swabs become samples which can be taken without the consent required in section 2(4)(b) of the 1990 Act. In other words, the mouth swabs become non-intimate samples. Section 2(1)(e) refers to a footprint or similar impression of any part of a person’s body other than his or her hand or mouth. This is a non-intimate sample. However, the exclusion from its scope of a person’s mouth may point to it being regarded as an intimate sample. To remove that possibility, I am proposing that the words “or mouth” be deleted. A dental impression will continue to be an intimate sample under section 2(1)(d) of the 1990 Act.

Amendment No. 70 proposes to insert a new subsection (1A) into section 2 of the 1990 Act to clarify that a reference to the mouth shall be read as a reference to the inside of the mouth. I am concerned that there be no doubt about the obtaining of mouth swabs under the 1990 Act and this amendment will ensure that mouth is interpreted as including not only the opening in the head but also the oral cavity behind it.

Amendment No. 71 proposes to delete the reference to cutting hairs in section 13 and simply to refer to plucking hairs as the means by which a hair sample may be taken. The cutting of hair does not produce useful DNA samples for the purpose of DNA profiling. The follicle that is attached to the end of a hair which is plucked is the most useful and interesting area from an analytical perspective and that is why plucking of hairs is being provided for. In addition, this amendment qualifies that hair should be plucked singly in so far as it is reasonably practical, although with someone like me, it might be difficult to find two hairs close to one another anyway. This is intended to cover the situation in which more than one hair is plucked unintentionally. The safeguard that no more hairs should be plucked than the person taking the sample reasonably considers to be necessary for the purpose of forensic testing is restated.

Amendments Nos. 70, 71a and 71 b are drafting amendments and deal with the issue of commas.

Deputy Ó Snodaigh's proposed amendments, Nos. 72 and 74 and the related amendment No. 292 introduce matters that are far wider than what was intended by section 13. His amendments raise issues that are more appropriate to the new DNA database Bill being prepared and I do not propose to consider those issues at this stage or to accept the amendments.

Amendment No. 72 relates to paragraph (c) of section 13, which amends section 5 of the 1990 Act by adding a new paragraph (aa) which lists a number of specific matters about which regulations are to be prepared. The amendment proposes to delete paragraph (aa) and add a new provision that also provides for the making of regulations as to how samples are to be taken. The amendment refers to Schedule 1 which is attached as amendment No. 292. This Schedule includes aspects relating to privacy that one can reasonably be expect to be included. However, the matters included are too general and broad and are closer to guidelines than regulations. Regulations of the type required to govern the taking of samples must be very specific and that is the approach taken in the current paragraph (aa). Furthermore, it is already the case under the Act that any regulations must be laid before the Houses of the Oireachtas. The opportunity for scrutiny afforded by that process is a more appropriate way of ensuring the regulations are suitable and pertinent to the circumstances in which samples are taken.

Amendment No. 73 proposes to replace "the" with "an" but we have already dealt with that issue. Amendment No. 74 seeks to insert a new paragraph (d) at the end of the section. It deals with the issues to be considered when consent is not forthcoming but the net effect would be to restrict the development of DNA sampling since the superintendent would be required to undertake an extensive review that would be onerous and unnecessary in most cases. It is not appropriate to add such extensive new requirements at this stage. The forthcoming DNA database Bill will provide a more suitable opportunity to deal with the issue of consent and dealing with refusals of consent.

In recent times, it has become much easier to take DNA samples. Effectively, an implement similar to a large cotton bud is placed on the inside of the cheek, moved lightly up and down and removed. This produces the best form of DNA sample. Hair samples are very difficult to work with but if a hair is plucked, the small follicle or piece of flesh attached to the end is most useful from the point of view of DNA analysis. The gist of my amendment is to make clear that swabs from the inside of the cheek are to be made the primary means of taking DNA samples in the future.

I have no difficulty with this section or with the amendments to it. A number of the amendments I have proposed are technical and stylistic and have been put forward purely for consideration. Accordingly, I will focus on an amendment of substance, namely amendment 71c dealing with the length of time samples can be kept. Under the present legislation samples may be kept for six months, and the Minister is proposing to increase that to 12 months. Is that an adequate amount of time for the retention of samples? My amendment proposes that the time specified in section 13 be three years.

What does amendment 71c state?

I propose to substitute "3 years" for "twelve months".

It is on page 18 of the consolidated list.

We might have a general discussion on the purposes of a sample, which I assume are twofold. First, it will provide evidence in court where charges are preferred. Second, where an investigation takes a long time, it will provide part of the armoury of evidence being assembled which may in time connect with other evidence. In connection with the latter, I am keen to ensure that samples continue to be available until either a trial is completed and an appeal disposed of or an investigation is fully and finally completed. There may be existing provisions to cover the points I am raising.

I have just been informed of an interesting provision which goes some way to addressing the issue the Deputy has raised. Section 4(5) of the Criminal Justice (Forensic Evidence) Act 1990 provides that:

If a court is satisfied, on an application being made to it by or on behalf of the Director of Public Prosecutions or the person from whom the sample was taken, that there is good reason why records and samples to which this section applies should not be destroyed under this section, it may make an order authorising the retention of such records and samples for such purpose or period as it may direct.

Who is the applicant?

The DPP or the person who provided the sample.

I was aware of a general provision for extending the time limit by applying to the court. Samples seem to be taken properly and in a private manner and the present guidelines seem to be satisfactory, notwithstanding that civil liberties groups will call for further safeguards. I have no great sympathy for Saddam Hussein but those with an instinct for fair play felt it was inappropriate and constituted improper procedure to show pictures around the world of him grimacing as samples were taken.

With regard to samples which are properly taken and retained, we should ensure that they are retained for a sufficient length of time to allow a criminal trial to be completed properly. We must allow them to be retained while a complex investigation can be under way. I suggest we provide for retention for three years rather than the ministerial suggestion of 12 months. There is a strong case for this.

This is an important area and the Minister has indicated that he will come back with more comprehensive legislation. I presume this is a holding position. I wish to raise three issues on the matter, partly because I am familiarising myself with an area that I have left behind for some time. People are genuinely concerned about forensic evidence being gathered and we need a clear view of how it is done. I would like the Minister to respond to some queries, and I hope I am not diverting the committee from proceeding very quickly with the significant amount of work it must do.

Will the Minister précis the procedure for the safeguards which exist regarding the taking of samples? He is now suggesting that mouth swabs would not be an intimate forensic procedure. What are the procedures to take mouth swabs, assuming that this legislative change is made? What would be the consequence of somebody refusing to allow a swab to be taken, and what degree of compulsion is currently permitted and would be permitted by the change in the titling of a mouth swab as a non-intimate procedure?

My second question refers to the timeframe issue raised by Deputy Jim O'Keeffe. The Minister suggests that these samples could be kept for 12 months, but at an earlier time he suggested that he saw no reason that they could not be kept permanently. What is the Minister's thinking on this, and will a different timeframe be stipulated in the next legislation to be tabled by the Minister before the end of the year?

There is a degree of concern about the storage of such samples. I have no knowledge of forensics but if we are to have longer terms of storage beyond six months, what are the mechanisms, procedures and security involved? What will preserve the integrity of the samples and ensure there is no tampering? Evidence, even of a physical nature, has been known to evaporate in recent times from Garda custody.

Deputy Ó Snodaigh has tabled amendments Nos. 72, 74 and 292, which we are discussing along with amendment No. 69. Would the Deputy like to address those amendments?

I regret I could not attend any earlier.

The committee has received the Deputy's note of apology for the delay.

The amendments I have tabled are in line with some of the comments made by the Human Rights Commission. I have some sympathy with what the Minister is trying to do. He is trying to ensure that investigations and prosecutions are not affected by a restriction that would allow samples to be destroyed after six months. He is also attempting to ensure that the Garda can get such samples when required. Anybody who has watched television in recent years will know from some programmes where science has got us, and in some ways its usage is spectacular.

We must try to ensure the Garda has all necessary resources. When the committee last met, the Minister referred to the new forensic laboratory to be built at Garda headquarters in the Phoenix Park. We must also ensure when giving additional powers to the Garda that the potential for abuse is minimised. In this regard the regulations the Minister hopes to produce should be included in primary legislation rather than being made afterwards. When the establishment of a Garda reserve was under discussion this committee asked that the proposed regulations be put in primary legislation. We are now hearing the row that is occurring. It is bad policy not to have protections in place prior to the coming into force of an Act. The purpose of my amendments Nos. 74 and 292 is to balance adequately the public interest in obtaining evidence with the necessity to safeguard the right of individuals to respect for their physical integrity and private life.

The Irish Council for Civil Liberties went slightly further than what I have proposed. I might re-examine its submission. It proposed that the taking of bodily samples should be video-recorded since the facility will be available in all Garda stations in the near future. That would give protection both to the gardaí engaged in taking samples and also to the suspects, and would guard against the use of undue or unnecessary force and the possibility of a complaint being made afterwards. Guidelines and regulations should be quite clear on the circumstances in which a garda may resort to taking an intimate sample without somebody's consent, and whether it is good enough that a garda should decide to do so in the event that consent is withheld or should have to apply to the Judiciary for an order that the sample be taken, in which case the garda would have to justify the taking of a sample by force if necessary. We do not want to create a situation in which gardaí would be involved in brute force or in pressurising suspects. We do not want a recurrence of what happened in Donegal.

Rather than trying to restrict what the Minister has set out, my amendments seek to improve the Bill and to safeguard not only the rights of individuals but also the people administering the procedures outlined by the Minister. I hope they can be taken on board either in this form or in some other form to ensure that protections are put in place at the earliest possible stage rather than later, as often happens.

The Minister is planning a DNA database Bill in the future. It is a pity that even the heads of that Bill are not before us as they would provide us with a greater understanding of how it would implement the safeguards that I and others seek, and with a written assurance regarding such safeguards. In the absence of that, we should ensure that safeguards are put in place.

I thank the Deputies for their remarks. There are a number of issues. Deputy Howlin asked for my general opinion regarding DNA and the current law on it. It is a very complex area. Appended to the Law Reform Commission's report on the establishment of a DNA database is draft legislation for the establishment of such a database. When the Law Reform Commission report was published, there was considerable debate on it. Some people strongly believe there should be a universal database, that everybody should be on a system and, therefore, this business of arresting people and taking samples from them in police stations, etc. should be slowly got rid of. There is the other view that it is a huge intrusion on somebody's privacy and dignity and that it should be restricted to the greatest possible extent. In its recommendations, the Law Reform Commission tries to navigate a middle course between the two.

I believe the 1990 legislation was based on a Private Members' Bill by the former Deputy, Alan Shatter, or at least he raised the matter at one stage. The problem with all this is that we must philosophically work out our problems with the creation of DNA databases. If one is worried that Big Brother could, with a super computer, screen half the population and identify all the people liable to get prostate cancer, breast cancer and diabetes or who have genetic faults and so on, I can see there is a type of philosophical dimension to it.

There is a significant insurance dimension.

There is as well.

There is an employment dimension.

That is one area. In regard to criminal investigations, one of the issues is whether gardaí will arrest people so they can build up a DNA database and whether they will use a flimsy pretext to bring somebody in to take a sample. Gardaí could say they now have Michael McDowell's sample and if there are any more burglaries for which they suspect him, they will have a comparator in the station. It is a question of whether they will abuse their power to conduct sweeping arrests to constantly accumulate DNA data which they can use later.

The Law Reform Commission suggested certain samples should be retained indefinitely on the database, that is, those of people convicted of arrestable offences or other serious offences, and that there should be a periodic clean-out of records on people arrested and acquitted. I know the Human Rights Commission and the Irish Council for Civil Liberties have a view. I would not see it as a huge intrusion on my privacy to know that in Rathmines Garda station or in the Phoenix Park there was a DNA record belonging to me. In other words, if my blood was found at the scene of a rape, by running a search the Garda could pick me out as the most likely culprit. I do not have a major problem with that. I believe I still have some liberal fibres left in my body but I do not see that my life would be unutterably altered if there were a DNA database in the Phoenix Park with my sample in it. I have no particular concern.

Traditionally, the argument against that has been that if one relies on that type of sampling as the prime investigative tool — one could actually condition a police force to do that — then one could have miscarriages of justice. People would find samples——

They could drop samples at the scene.

They could drop samples. That is the issue. It would not allow the normal forensic examination of a case and the compilation of a case. This is a component part. If one moved to the notion that this was the be all and end all of police investigation, it would be very dangerous.

The Deputy is into OJ Simpson territory and we will not go into all the details of that case. All I will say is the same could be said about fingerprints.

We have never had the absolute reliance that people now have on DNA. It seems to be regarded as a foolproof technology, which is not the case.

We are looking at it from the point of view of the court trial, proof and evidence. We have insufficient public debate on the investigative side. The capability exists in Britain whereby DNA samples could be taken from the table around which we sit now to ascertain who was in the room. People driving getaway cars or handling anything at a scene of a crime leave traces of DNA. Even though those trace elements of DNA cannot reliably be used in prosecutions, as it could not be proved that the sample was not smudged on from something else, it gives the Garda a very valuable lead.

As long as that is what it is.

For instance, gardaí investigating a flat used by cocaine dealers should be able to pick up trace DNA on the objects in the flat which would give them a fairly good idea whether dealer A or dealer B was involved in the operation.

Would it not then be a matter for judges as to how they interpret DNA evidence? Why should we place unnecessary constraints on the Garda Síochána in using a technique with marvellous possibilities to bring people before the courts? If we have concerns at the court end, we should provide the necessary guidelines and constraints not to place an excessive reliance on such evidence.

That is my philosophical dilemma. Regardless of what a judge believes is fair or the Supreme Court might determine to be fair or reliable, the immense advantage to the Garda of having a good DNA capability to give hints as to whom it should be seeking seems to be forgotten in much of the discussion. In that context, if we allow samples to be taken from arrested persons, it could be suggested that the Garda would use a pretext to pick up everybody, whose samples it wanted to have on the database and effectively get them registered in the knowledge that if such a person committed a burglary, he or she could be found quite quickly.

That would be as opposed to a universal database as mentioned earlier by the Minister.

Is something similar not already carried out? For example, in some murder cases in Britain with a profiled suspect, all similar males within the county have been voluntarily asked to submit samples to exclude them.

Those samples are then destroyed after the investigation.

The Law Reform Commission suggested an entirely different approach to volunteered samples compared with compulsorily taken samples. In a case where somebody has abducted, sexually abused and killed a little girl in a specific area, everybody in the neighbourhood might be asked to provide a DNA sample. If they all believe this to be a complex way of preparing a trap for them in the future when they might misbehave——

That is the point.

——they would be reluctant to deal with such voluntary sample-taking exercises. It is not easy to address this issue.

Certain policemen will always do improper things. Is there a danger that evidence will be planted and DNA used improperly?

That is what Deputy Howlin——

I thought he——

That was the theory thought up by OJ Simpson's lawyers which put his——

It proved convincing.

I understood Deputy Howlin's approach was that he does not want over-reliance on DNA and seeks to have supporting evidence. In the OJ Simpson case an effort was made to prove the unprovable. Will it be possible to plant DNA and will it be possible to minimise this danger by issuing guidelines?

The debate is broadening. Could we return to the question of what the Garda will do?

Deputy Ó Snodaigh stated it would helpful if the heads of a DNA Bill were available. A Bill will be produced later this year. It is also planned to begin construction of a forensic science laboratory in this calendar year or early next year. The site will be located for security reasons in Garda headquarters in the Phoenix Park. The Forensic Science Laboratory will have a brand new, state-of-the-art facility to deal with custody of samples. Some of the issues raised were where DNA samples are kept and whether they are being kept in proper circumstances.

Would samples from all Garda stations be held in the new Forensic Science Laboratory?

If a national DNA database is established, it would have to be indexed and kept centrally. If one takes a glass in one's hand, one leaves a fingerprint and DNA on it. In the mid-1980s and 1990s people were accused of lifting fingerprints on Sellotape and moving them to the scene of a crime. While this was a possibility, one could definitely move DNA to wherever one wanted to place it. There is a danger of over-reliance on DNA because a bad-minded investigator could decide to find some of Michael McDowell's DNA at the scene of a crime and act on it.

Alternatively, a good-minded investigator could be wrongly convinced that Michael McDowell is the perpetrator and wishes to secure a conviction. Such cases occur. A criminal who wants to finger another criminal could also do this.

The crucial issue in that regard is the time limits in place because in such cases one cannot keep DNA for an indefinite period. If one is good or bad-minded — it depends on one's definition — sufficiently cynical or——

Excessively zealous.

——misguided to decide to plant DNA evidence, there would be no problem about arresting the person to get the sample from him or her afterwards. If that is the evil we are trying to avoid and it occurs to a bad-minded detective to find a sample of a person's DNA at the scene of a crime, unless it is being suggested that he or she would take something from the centrally held sample and place it at the scene of a crime, he or she could easily do this by shifting available DNA samples to the scene. If blood, hair samples or swabs are kept in proper custody, how would the bad-minded person get a sample to plant at the scene of a crime? The difficulty of obtaining a sample of a person in custody would not be a safeguard against such a person simply waiting until he observed a person using a cup, taking a swab and smearing it at the scene of a crime.

Are there specific items?

As I indicated in reply to a question in the Dáil, it is proposed to have an independent oversight body for the DNA database. This will not be a purely functional body and the Garda Síochána will not have overall charge of it. The Garda will certainly not have overall responsibility therefor.

What about forcing somebody to give a mouth swab?

Originally we were discussing the question of using reasonable force. However, I have walked away from that issue and intend to return to it in the autumn when dealing with the DNA database legislation.

What is the consequence of transferring the mouth swab from the intimate category to the non-intimate or non-invasive category in terms of compatibility?

It means that consent is not required for it and that, in theory——

What is the procedure if somebody says no.

If somebody says "No" when asked for a hair sample, the taking of which is non-intimate——

I asked about the mouth swab.

If somebody says "No", two people would have to hold him or her down, one of whom would have to pluck the hair. If somebody refused to give fingerprints, two burly gardaí would eventually have to place his or her hand on the piece of paper.

What about the mouth swab?

It is a matter of holding the person's head and inserting and removing the device that takes the swab.

The person would be forced to do it.

Under the Criminal Justice (Forensic Evidence) Act 1990, an inference can be drawn from a failure to give a sample.

In making the transfer under this amendment, is it possible to force a person to give a sample?

I am not proposing in this legislation that reasonable force be used in taking mouth swabs. I discussed this previously in the Dáil but have walked away from the issue because I would prefer to have all aspects dealt with in one package.

What is the consequence of recategorising, as the Minister is doing?

I suppose the consequence is that an inference can be drawn from one's refusal to give the sample.

Is that not possible already?

No, not in respect of the taking of samples when one's consent is required.

What about the matters raised by Deputy Ó Snodaigh? Will they be dealt with in the autumn?

Yes. If we provide a balanced package, based on the Law Reform Commission's recommendations, which is sufficient to operate a proper DNA database, affords proper forensic science capacity to deal with it and establishes an oversight body, people would be much more easy about whether compulsory power should be used and about the consequences of not giving a sample.

The Minister might revert to my proposal that the retention period be three years rather than 12 months.

I am in sympathy with the Deputy's amendment but want to examine it further. The three-year rule is one with which I sympathise but I do not want to accede to it today. However, I will consider it. I would prefer to provide a balanced package rather than one break-out element of a balanced package.

The Minister was all for going from six months to 12 months, presumably because there is a need to do so. It seems the 12-month period is inadequate. Perhaps the matter will be further developed by the time we are on Report Stage.

I feel strongly that a period of 12 months is much too short. Coming from west Cork——

I have great sympathy with the Deputy on that matter.

Can this matter not be left until we are dealing with the whole package in the autumn?

I do not know how long the DNA legislation will take to pass through the Oireachtas once we start dealing with it.

When will it be published?

We hope to have it published this September, but I do not know when we will consider it. I do not want to be told in February 2007, in particular, that the law could have been in place but is not because I walked away from it.

It is possible that the Bill will become law under the next Dáil.

The Dáil may become much more efficient at dealing with these matters.

My problem with it is that the safeguards are coming after the fact. We do not know what the make-up of the next Dáil will be. The matter might not be a priority.

The Deputy might be Minister for Justice, Equality and Law Reform.

Exactly. That is my first priority.

Originally we were talking of the use of physical force. That is no longer on the table and we are now simply saying the six-month period is being extended to 12 months. I do not see significant human rights implications in that.

I propose my amendments be accepted and then amended if necessary when the Bill is published, so that we have some sort of protections in place while we await the DNA database. The data protection Bill is still awaited so the priority is to change the laws quickly, but usually the protections and safeguards arrive well afterwards. I would prefer the section be suspended until the protections are put in place. If necessary, they could be amended later.

Amendment agreed to.

I move amendment No. 70:

In page 16, paragraph (a), after line 44, to insert the following:

"(ii) by the insertion of the following subsection after subsection (1):

"(1A) A reference in subsection (1) of this section to the mouth shall be read as including a reference to the inside of the mouth.".".

Amendment agreed to.
Amendment No. 70a not moved.

I move amendment No. 71:

In page 17, lines 16 to 22, to delete all words from and including "hair" in line 16 down to and including "testing."," in line 22 and substitute the following:

"hair is taken in accordance with this section—

(a) the sample may be taken by plucking hairs with their roots and, in so far as it is reasonably practicable, the hairs shall be plucked singly, and

(b) no more hairs shall be plucked than the person taking the sample reasonably considers to be necessary to constitute a sufficient sample for the purpose of forensic testing.”,”.

Amendment agreed to.
Amendments Nos. 71a and 71b not moved.

Amendment No. 71c is a matter of style.

No, it is a substantive amendment. I move amendment No. 71c:

In page 17, paragraph (b), line 25, to delete "twelve months" and substitute "3 years".

The amendment has already been discussed with amendment No. 54a.

I will look at it between now and Report Stage but I have also indicated I would prefer to deal with this as part of a balanced package in the autumn.

Deputy Jim O'Keeffe will have the amendment considered on Report Stage and as part of a balanced package.

I am not sure the Minister will be around for the balanced package.

Amendment, by leave, withdrawn.

I move amendment No. 72:

In page 17, to delete lines 32 to 40 and substitute the following:

""(aa) make provision for the safeguards outlined in Schedule 1* of the Criminal Justice Act 2006.”.”.

Amendment put and declared lost.
Amendment No. 73 not moved.

I move amendment No. 74:

In page 17, between lines 40 and 41, to insert the following:

"(d) in section 5(2) by the insertion of the following paragraph after paragraph (b):

"(c) In determining whether the carrying out of a forensic procedure without consent is justified in all the circumstances the superintendent or Garda of higher rank shall have regard to the following:

(i) the seriousness of the circumstances surrounding the commission of the relevant offence and the gravity of the relevant offence;

(ii) the degree of the suspect's alleged participation in the commission of the relevant offence;

(iii) the age, physical and mental health, cultural background and religious beliefs of the suspect, to the extent that they are known;

(iv) whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence; and

(v) where the suspect gives reasons for refusing to consent, the reasons for refusing.".".

Amendment put and declared lost.
Section 13, as amended, agreed to.
SECTION 14.

Amendments Nos. 74a to 74c, inclusive, are related and may be taken together.

I move amendment No. 74a:

In page 18, line 5, to delete "statement" where it secondly occurs and substitute "statement,".

These amendments are technical. Rather than delay the committee I will simply put them forward for consideration principally for the Parliamentary Counsel.

Amendment, by leave, withdrawn.
Amendments Nos. 74b and 74c not moved.
Section 14 agreed to.
SECTION 15.

Amendments Nos. 75 to 78a, inclusive, and Nos. 79a to 79d, inclusive, are related, and amendments Nos. 77a and 77b are alternatives to amendment No. 77. We will discuss them together.

I move amendment No. 75:

In page 18, subsection (1), line 15, after "statement" to insert the following:

"contained in the book of evidence served on that person".

Section 15 deals with the admissibility of witness statements. The amendment in Deputy Costello's name which I am absorbing into my own list of amendments seeks to deal with the procedures involved in such admissibility. Amendment No. 75 sets out to ensure that witness statements that are admitted under section 15 are not produced out of the blue, that is, that they are included in the book of evidence. I presume that is intended so that there is no ambush of any side in court proceedings. Amendment No. 76 is a drafting amendment to make it clear that the leave of the court is required for the operation of section 15 and for the production and admissibility of such witness statements.

I would like to hear the Minister's response to that.

Are we discussing all the amendments together?

We are. They are not that important and they seem to contain commas and so on.

Which amendments are we talking about?

We are dealing with amendment Nos. 76a to 76c, inclusive.

Groupings can be logical in a procedural sense. I am not sure if it is helpful to include technical amendments with impactive amendments. The alternative is to disaggregate and take each amendment individually. As there are almost 800 amendments, that would not be very efficient. We need to have a reasonably flexible approach to dealing with this on the committee.

The items mentioned are very specific and we can come back to them without any problem.

As I understood it, we were going to deal with all these amendments together.

Almost all my amendments are technical and will hopefully contribute to improving the Bill as it emerges. My amendments to amendment No. 77 deal with the issue of what will satisfy the court in respect of the admissibility of certain witness statements. In the Bill as drafted, there are a number of requirements which are in addition to one another, meaning that they are cumulative. I suggest that we examine an approach which would allow the admissibility of certain witness statements when the court is satisfied of certain things in the alternative. That is the purpose behind that particular amendment.

Is that amendment No. 1 to amendment No. 77?

It is. The issue is where the statement may be so admitted in certain circumstances. I want the statement to be admissible in as many instances as possible.

The common law position is that a prior inconsistent statement is admissible to discredit a witness in a later statement to court, but is not admissible as proof of the contents of the prior inconsistent statement. A person may state to the Garda that he or she saw Joe Bloggs stab Josephine Bloggs on the street, but then might reverse that statement in court. One can use the first statement to discredit the later testimony but one cannot use it as evidence that Mr. Joe Bloggs stabbed Ms Josephine Bloggs on the street. Most lay people would find that difficult to understand but the only evidence that is admissible in a court case is that which is presented in court and subject to cross-examination. If a prior statement is lying on a desk somewhere or residing in somebody's memory, it is not admissible in evidence because, in effect, it is a form of hearsay evidence which is not as testable as the direct testimony of a person in court. When people refuse to give evidence, deny they made the prior inconsistent statement or give wholly inconsistent evidence before a jury, lay people looking at such situations would believe they are hearing a pack of lies. However, it is not sufficient to say it is a pack of lies, retire the witness from the witness box and threaten him or her with perjury prosecution at a later date if it is the case that the testimony is vital in the administration of public justice. A majority of the Canadian Supreme Court decided, in the case of R v. B, that a previous statement can be admitted if it would otherwise be admissible as the witness’s oral evidence and if the judge is satisfied that indicia of reliability are present and genuine.

What was the case?

This was a decision of the Canadian Supreme Court in the case of R v. B.

What are the indicia of reliability?

The indicia are that a warning must have been given to the witness of the necessity to tell the truth and of the consequence of not doing so; that the statement was made either on oath or solemn affirmation and was video-recorded; or that some substitute indicia are established to the same effect. In other words, there is no doubt that the statement was made. The judge must also be satisfied under Canadian law that the statement was made voluntarily and that there were no factors operating which would tend to bring the administration of justice into disrepute. It must be clear that the witness was not cajoled into making a statement or told that he or she would not be released before giving a certain account of events.

In coming to its conclusion, the Canadian court was very careful to ensure that a witness could be subject to contemporaneous cross-examination from the defence and that is crucial. One cannot simply proffer a piece of paper without the person who made the statement attending court or being cross-examined on the evidence.

Where does that leave one if the witness asserts that the statement is a pack of lies?

If the witness asserts that what he or she said to the Garda on a previous occasion was a pack of lies and what he or she is saying now is the truth, under oath, the jury must make up its mind on that matter. However, the jury can accept the earlier version if it appears to be more likely than the later testimony. That is the change that happened in Canada.

In Ireland, we were faced with a number of high profile cases where people seemed to have given the Garda very detailed accounts, in witness statements, of murders but trials were collapsing when amnesia was suddenly striking the witnesses with regard to why they made the original statements. They simply said that they could not remember anything. They could not remember why they made the statements or what had happened. The question that arose in that context was what we could do about such situations. These events were roughly contemporaneous with the emergence of this criminal justice legislation.

That is the background to the proposal that the Canadian law be transposed in statute form into Irish law. The preconditions for its coming into effect are that the witness, although available for cross-examination, refuses to give evidence, denies making a statement or gives evidence which is wholly and materially inconsistent with it. The prior statement is admissible if the witness confirms, or if it is proved, that he or she made it. The court must be satisfied that direct oral evidence of any fact mentioned in the statement would be admissible in the proceedings.

Looking at that precondition I see a problem to which I will return. A statement could contain a little inadmissible and a lot of admissible evidence, so we might re-examine that. Another precondition is that the statement was made voluntarily, it was reliable and was given under oath or affirmation, and contains a statutory declaration by the witness that the statement is true to the best of his or her knowledge or belief, or the court is otherwise satisfied that when the statement was made, the witness understood the requirement to tell the truth.

It looks like a tall order.

It is a high fence to cross and the average witness statement in the average book of evidence would not comply with it.

Where does it get us?

It gets us to the point where people cannot be intimidated into amnesia because they will say to the intimidators there is no point because their original statements contain statutory declarations that they are true. If they say in court that they cannot remember it, the prosecution will cross-examine them. They will say that because there is a record of their statements, it is pointless to put pressure on them to recant their evidence. That is one perspective.

That is a misunderstanding of the type of pressure put on the individuals in the background cases about which we are talking.

In many of these areas deals are done.

But breaking legs and shooting people——

That is the point. It is either intimidation or threats. If a star witness comes forward and gardaí believe the accused is likely to resort to intimidation when the testimony comes forward, the gardaí can record that evidence in a manner that makes it clear that it is a voluntary statement and that the witness is not inventing it, and they can have it available for use at a later point. The Canadian judiciary decided it would be grotesque if people could recant cast-iron statements and enter a state of amnesia and that if their later statements could be proven fraudulent, no reliance could be put on their original statements.

This is a serious issue which we must get right. Will the Minister tell us what the Canadians' experience has been of the provision they introduced? Is there a rough equivalence on constitutional issues between the Canadian and Irish situations?

Generally speaking the Canadian and Irish States are similar. Canada is a common law jurisdiction with a written constitution, a judiciary having the same functions as the Irish judiciary and a criminal justice system that is based on the same principles. Canadian cases are frequently relied on in Irish courts, so it is not an alien system.

Their experience would be directly appropriate to ours.

It is a classic common law jurisdiction dilemma that while one may discredit the later testimony, there is no evidence of what the truth is when a witness has been caught lying and changing his or her testimony, that one cannot rely on what he or she said initially and that one walks away from the testimony.

To put it bluntly, has this provision worked in Canada?

I have not studied the consequences. However the British Criminal Justice Act 2003 brought similar provisions into UK law. In section 119 of their 2003 Act, it is stated:

If in criminal proceedings a person gives oral evidence and—

(a) he admits making a previous inconsistent statement, or

(b) a previous inconsistent statement made by him is proved by section 3, 4 or 5 of the Criminal Procedure Act 1865 (c. 18),

the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible.

The 1865 Act deals with hostile witnesses, and I learned it in King's Inns. It is still in operation as law in Ireland. The British have moved in this direction.

I do not see all the safeguards however that are in our version or the Canadian decision. The British change in law is a bit more terse than ours. We should be clear that the danger would be that the Garda or persons in authority would put people under pressure to give a false account. The person, having thought the matter over, may want to recant evidence. The false account would nonetheless be shoved before a jury even though nobody would be stating that it is the truth. This may happen because it may bolster a case. We cannot walk away from that danger. The alternative is that people can be pressurised into abandoning their testimony to produce miscarriages of justice.

I may have been a bit unfair with regard to the British legislation. Section 120 of that Act states:

A previous statement by the witness is admissible as evidence of any matter stated of which oral evidence by him would be admissible, if—

(a) any of the following three conditions is satisfied, and

(b) while giving evidence the witness indicates that to the best of his belief he made the statement, and that to the best of his belief it states the truth.

I share Deputy Jim O'Keeffe's view that this is a very important issue to get right. I am not convinced that the actual formulation proposed by the Minister will make a great deal of difference in a court case. The hurdles are very high. Having been rather directly involved in matters where people made false confessions for actions of which they were innocent, and been aware of them, I am mindful of the safeguards we must apply.

My instinct in bringing this to the attention of the Minister regards the subsection (2)(c) provisions where a statement is given under oath or affirmation or the court is satisfied that the witness understood the requirement to tell the truth. How can it be proved that the witness understood the requirement to tell the truth?

We are proposing to give it a second paragraph.

That is true. It would be a difficult issue to deal with in court. Is the simplest way to deal with this matter to present the court with a video of the original statement rather than discussing witness statements? All witness statements should be video-taped, and the degree of truthfulness can be left to the court to determine to some extent.

I will give the Deputy an example. Subsection (3) provides——

With regard to the Minister's comments, the two amendments I am suggesting are all the more necessary.

I will deal with the matter. Subsection (3) states:

In deciding whether the statement is reliable the court shall have regard to—

(a) whether it was given on oath or affirmation or was videorecorded.

Statements made under oath——

We should be moving away from that. Should all statements be recorded in such a way?

I imagine that it is not simply an affidavit formula that is pertinent. One is considering this being put before a judge. For example, a person giving a deposition under oath would be presumed to be telling the truth. I am slightly concerned about the formulation of subsection (2)(b)(i), and this occurred to me only now as I read it out. It is provided in subsection (2)(b)(i) that direct oral evidence of any fact mentioned in it would be admissible in the proceedings. Witnesses frequently make 100 admissible statements but include one bit of hearsay. According to this, if that happened the whole statement would fall; every single comma and jot of it would have to be admissible.

The Minister is interpreting "any" as meaning "every".

It refers to any fact.

The Minister is interpreting it as meaning every fact. If it is interpreted as referring to any fact, one could pick and choose.

If a name was correct, the court would be satisfied.

Any fact mentioned would be admissible.

Perhaps I am being too harsh. However, it should be clear that "any" does not mean "every".

What did the Parliamentary Counsel mean?

That is a good question. I know that Parliamentary Counsel means that any fact to be relied on must be admissible. That is the sense of it.

Deputy O'Keeffe is correct in stating that if the name of a witness is right, it can be relied upon. It can be relied upon if any fact mentioned is correct.

The Deputy is interpreting it totally differently. There are three interpretations. One is that if any fact——

Any single fact.

If any single fact is correct it is admissible. I do not believe that is what is meant. Nor is it intended that every fact must be reliable. I believe it is taking a middle course, namely, that any fact that the prosecution wants to establish from it is truthful. That is what is really there. For example, if one made a long three-page statement and halfway through it one stated that one's mother told one that she also saw the same person do X or Y, that would not be admissible in evidence. If the words "any fact" were intended to be interpreted as meaning "every fact", the statement would collapse. If interpreted as Deputy O'Keeffe suggested and one said something happened on a Thursday, the whole thing would become admissible because we can all agree that the crime was committed on a Thursday. That would be nonsensical. It must be interpreted as meaning a fact——

——on which the prosecution is relying.

The term "any" certainly cannot mean "every".

The Minister is talking about parts of the statement. If it is mentioned that somebody else also witnessed an event, it would have to be included, because the whole statement is being included.

It would not, because that would enable somebody to include material, namely, hearsay, via this means that they could not include if they were testifying in the witness box.

That is the danger of it.

Are there any circumstances in which one could read out the portion of the statement that by common consent was inadmissible, with a warning from the judge?

One could. Frequently bits of an accused person's confession are taken out in the absence of juries because of a ruling that they should not see them.

There is a danger. We do not want to provide a recipe for a lawyer's feast.

Absolutely not. I am struck by the difference between the Deputy's interpretation of the word "any" and mine. Deputy Howlin had a third interpretation to the effect that "any" cannot mean "every". For this to be workable the interpretation of "any" must be clearly confined——

It is very hard to get a formulation.

As we are talking about difficulties, there is another difficulty. We are all trying to get a wording that is cast-iron. The Minister's amendment would require that a statement be given on oath or affirmation or contain a statutory declaration by the witness. Let us examine the practicality. An oath or affirmation would have to be sworn before a commissioner for oaths. A statutory declaration would have to be sworn before a peace commissioner. Let us say the statement is properly taken, that it is voluntary and is video recorded at some hour in the middle of the night, would the detective sergeant then have to look for a commissioner to comply with the Minister's amendment? Is that practical and necessary?

If one deletes the part I propose to delete, one confines it to a very narrow set of circumstances.

I wish to go back to an amendment which deserves consideration. I have also provided that the court could be otherwise satisfied that when the statement was made, the witness understood the requirement to tell the truth. I am worried that we are putting so many ties on this provision no statement will be admissible in a practical sense.

I am looking for direction here. It all seems to be totally up in the air.

I do not believe it is unravelling.

Deputy Costello would probably say the oven was not at the right temperature.

There are two separate issues here. The first is what should be admissible to prove. The words in line 25 are obviously ambiguous. We will have to look at that issue.

Could the Minister look at the amendments to see whether we can deal with them? We will know then that on Report Stage, he will come back on the other items.

The book of evidence issue is a bit complicated. It is not to be presumed the prosecution knows somebody will recant. It would produce a book of evidence in the ordinary way. It will not produce a book of evidence and say that because it believes Michael McDowell, as a witness, is windy, it will have a special annex, or a whole set of material attached to the book of evidence anticipating somebody will threaten to break his legs.

That is not how I read it.

The court may be surprised the witness resiles from his previous statement, but at that stage everybody is alerted to it. However, the original statement is in the book of evidence and it would be relied on by the prosecution and the defence would have sight of it. In other words, one is not talking about somebody who has been brought in, from whom a statement has been taken and who has subsequently recanted it.

One cannot just prop it up at a late stage.

It could be thrown in by the by that there is another fellow about whom nobody has heard up to that point and a statement could be produced from him.

I understand that point. The book of evidence is not always simply the raw statements of witnesses. As the Deputy knows, they are edited and the inadmissible and prejudicial parts are taken out. If one is preparing a book of evidence say in a murder case, one does not include a statement stating "I am sure it was Joe Bloggs. I saw him on the last occasion he murdered somebody". One would not include that in a book of evidence because it would not be evidence one would propose to tender in the trial as it would prejudice the jury. Likewise, if there is a large amount of hearsay in somebody's original statement, it is taken out when preparing the book of evidence because it is not evidence one proposes to tender to the jury.

I have seen the Northern Ireland equivalent to books of evidence. They have witness statements designed for use in court and are signed with a declaration that their contents are true. Where we would hand over an edited statement, they are handed over as part of the prosecution process.

Does the Minister see the import of what I want to do?

I do. The Deputy wants to prevent ambushes.

Exactly. Perhaps I might table a Report Stage amendment with the wording "referred to in the book of evidence" rather than "contained in the book of evidence".

If there was such a statement.

The statement is referred. It is not a statement introduced de novo into the middle of a trial.

In practical terms it would inevitably be contained in the book of evidence anyhow.

In all of these cases, the gist of it would be. However, the statement may not be inserted in its original form.

Deputy Howlin's point is absolutely correct. It would be entirely improper to have something sprung in the middle of a trial and have the witness deny it.

Only tribunals do that.

The second point relates to a drafting amendment. I presume the Minister intends that the leave of the court would be required to introduce such statements.

Yes, I assume that. It is implicit in section 15(2)(b). The court must be satisfied of certain matters before these things can be proved. There are preconditions.

It is a different issue.

The same point is implicit in section 15(4), which states that the statement shall not be admitted unless the court is of the opinion that those two conditions are satisfied.

Both of those are conditions to validate the statement. However, I believe the court should determine that the statement is admissible as opposed to a checklist of criteria that make it eligible under this section.

I have no objection to recasting the legislation to make it clear that the court must make a preconditioned ruling.

Yes, that is the issue.

Counsel should not be permitted to suddenly wave the original statement before a jury.

I am content with that. I will withdraw the amendment and recast it. The Minister might reflect on the issue in the interim.

The officials would like to have the new amendment in good time so that they can act reflectively.

The occurrence of "contained" would be changed to "referred to".

Amendment, by leave, withdrawn.
Amendments Nos. 76 to 77d, inclusive, not moved.

I move amendment No. 78:

In page 19, subsection (3)(b), line 2, after “whether” to insert the following:

"by reason of the circumstances in which it was made,".

Having regard to a recommendation of the Human Rights Commission, I propose amendment No. 78, the effect of which is that the court, in deciding the reliability of a statement that was neither sworn on oath nor video-recorded, should only have discretion to consider whether the circumstances in which the prior statement was made provide sufficient guarantees of its reliability. The wording of the Bill at present could be interpreted as giving the court the discretion to consider whether other evidence available at the trial supports the finding that the statement is reliable. This amendment has been proposed in response to an observation made by the Human Rights Commission.

Amendment agreed to.
Amendment No. 78a not moved.

I move amendment No. 79:

In page 19, subsection (4)(a), line 13, to delete “or exclusion”.

I wish to raise a point.

While the reason for the amendment may be abundantly clear to Deputy Jim O'Keeffe, I am slower on these matters. Do circumstances arise in which an "exclusion" would apply?

This is a drafting amendment which proposes to delete the words "or exclusion", the inclusion of which does not make sense having regard to the purposes of section 15(4).

If a matter is not admitted, it is obvious that it is excluded and does not need to be included twice in the text.

The words have no sensible meaning.

Are there any circumstances in which the exclusion of a statement would be unfair to the accused?

Either it is admitted or it is not admitted.

The provision relates to a witness statement.

I wish to raise an additional complication.

We want to clarify whether there is a difference between the words "inadmission" and "exclusion".

There is a difference. If one removes the word "exclusion" from subsection (4)(a), the only reason for not admitting a statement in evidence would be the risk that its admission would be unfair to the accused. I am positing a notion but cannot think of a scenario. I presume the draftsmen thought of one.

It does not make sense to include the words "or exclusion" in this context.

It could make sense in some circumstances and I am sure those who drafted the subsection had a case in mind.

One must relate the words to the principal clause that the statement shall not be admitted in the event of specific circumstances arising.

How close is the legislation to the Canadian model?

It is close to Canadian case law.

What about the legislation itself?

The Parliamentary Counsel suggested that we should remove the words, "or exclusion", because, as Deputy Jim O'Keeffe indicated, it is a qualification of a general proposition that a statement shall not be admitted.

I raise another related issue of concern. The subsection provides that statements shall not be admitted if their admission would be unfair to the accused or to any of the accused if there is more than one person on trial. Will the draftsman consider that it appears that a statement will not be admitted where there are joint accused in the event that it may be unfair to admit a statement against one person but not unfair to admit it against the second accused? Is it wise to provide that the person against whom it would not be unfair to have a statement admitted benefits from the fact that its admission could be unfair to another accused person? Does this provide an unnecessary loophole for persons against whom the admission of a statement would not be unfair?

It is hard to know exactly what case would arise in which it would be fair to one accused and unfair to a second accused.

In practical terms, would such a case involve separate trials?

In theory, the evidence must stack up against each person. Judges frequently state that one must consider the guilt or innocence of each accused separately and determine if there is evidence against each of them. It may well be that the draftsman arrived at a view that one could admit a statement against one person but it may contain something gravely prejudicial to another person and, therefore, should not be admitted. I will think about the capacity to delete portions of a statement which would be unfair to someone.

A statement which could be very useful in finding a particular accused guilty would not be admitted if another person might be unfairly treated as a result. This would lead to a person being acquitted.

To give an example, suppose that halfway through a statement, which is the cast iron evidence against accused A, it is indicated that one of the other accused has a previous conviction. In such circumstances, one would need to be in a position to excise. My officials draw my attention to the definition of the word "statement", as provided in section 14:

"statement" means a statement the making of which is duly proved and includes—

(a) any representation of fact, whether in words or otherwise,

(b) a statement which has been videorecorded or audiorecorded, and

(c) part of a statement;

It is possible that this definition is sufficient to allow excising of material and that the words providing that one can admit a statement mean that one can admit part of a statement in those circumstances. I will examine the matter before Report Stage to ensure this is a satisfactory way to deal with the issues we have uncovered.

We need to be careful in this regard. Who decides which part of the statement will be excised? One must not present part of a statement out of context.

This is where the idea of fairness and unfairness enters.

When witnesses make statements they are generally not accompanied by lawyers or solicitors, as is the case in other jurisdictions. They may recant statements at a later stage because they were not advised or made a wrong assumption. The entire section has major problems.

Amendment agreed to.
Amendments Nos. 79a to 79d, inclusive, not moved.
Question proposed: "That section 15, as amended, stand part of the Bill."

The debate we have had on this has thrown up many more questions and demonstrates that the section is not as thought-out as initially suggested. We cannot directly transpose the Canadian model here because Canada has a different history, albeit a similar legal structure. I understand, for example, that witness statements are routinely video-taped in Canada. I am not sure whether witnesses making statements are encouraged to have counsel present. This could make many of the problems with which we are dealing much easier to address in that counsel could advise a person not to state or include certain information in the knowledge that it would be prejudicial or ruled out of order. We had this debate last year when discussing the criminal justice system, statements and organised gangs — we will return to these issues — and I do not believe the extent of the problem at that time justified such a major change in our legal system.

Although the Minister is taking on board one of the human rights concerns, there are quite a number of others he should bear in mind. Some groups are worried that he is removing the right of the accused to cross-examine witnesses in cases where they would be available, although they might not necessarily be willing to be cross-examined. One should not forget the accused may face quite a long prison sentence in cases where this provision would be used.

In the past, suspects in particular have been coerced into making statements and there have been quite high-profile cases in this regard over the years. They recanted, were frowned upon and found guilty and it was only in later years that their statements——

One of the absolute conditions is that the person be available for cross-examination. There is no question of a prior inconsistent statement being produced and the person not being subject to cross-examination by the accused on the truth of it.

My worry, if we go down this road relates to perhaps not making it a condition that the statements be video-taped. At least on video-tape there is the possibility of looking at somebody's demeanour when making a statement and it could be taken into account when weighing up the evidence on cross-examination.

I am sympathetic to the Deputy regarding the general principle. If somebody has made a statement that he or she is now repudiating, most juries would like to know exactly the circumstances in which that statement was made. A statement in the handwriting of a garda, with the person's signature at the bottom, is not a very satisfactory document to put in the scales if the person says he does not know why his name appears thereon because he does not believe it to be true. Normally in such circumstances, a jury would refer to what it hears in court at the time in question.

We are really dealing with a variation of the common law rule against the admission of prior inconsistent statements as evidence of their own facts. Our present system constitutes a problem for us and I want to be sure that the remedy is not defective or producing worse problems in the other direction.

I am concerned that if there is a requirement that a witness who has made a very damning statement but who has given notice that he or she intends to resile from it be available for cross-examination, this, in practical terms, provides a considerable incentive for extreme action to be taken.

That would happen anyway if the person were willing to swear up against the accused. Extreme action could be taken against him to prevent him from testifying.

My concern is that the advancement of such extreme action would be incentivised if a statement could not be admitted in court. Possibly as a result of such extreme action, the witness in question would not be available for cross-examination. Have I expressed myself too bluntly?

I understand the Deputy's point. That point exists regardless of whether a provision of this kind is in place. There are incentives to take extreme action against witnesses one way or the other.

As Deputy Ó Snodaigh said, there were many representations on this matter by the various groups and they have been articulated and spoken about.

Is the section agreed?

We will agree to the section on the basis that it be re-examined thoroughly on Report Stage.

Question put and agreed to.
SECTION 16.
Amendment No. 80 not moved.
Question proposed: "That section 16 stand part of the Bill."

Section 16 is indicative of the parliamentary draftsman's approach in respect of amendment No. 77, regarding which we spoke of statements made under oath or affirmation, and statements that contain a statutory declaration of truth. It refers to a new approach, giving peace commissioners powers regarding statutory declarations and refers to the powers of a commissioner for oaths regarding the taking of a statement under oath. It is a major enough step.

The idea of having a commissioner for oaths to administer an oath or peace commissioner to administer a statutory declaration is entirely nullified by this provision. The notion of the statutory declaration is of no consequence when a garda becomes the administrator of the oath. In the short period I had in which to read the Bill, I did not notice this. It is a significant move on which I would not be keen. It deals with the difficulty pointed out by Deputy Jim O'Keeffe to the effect that one might not be able to get somebody to administer an oath in the middle of an interrogation in the middle of the night, for example. It totally undermines the principle of having an externally appointed person, under the seal of the Minister, authorised to administer oaths. Any garda is suddenly deemed to have the power. What is the point of this provision?

I will refer to witness statements in general and will not follow up on or detract from what the other Deputies have said.

I have given a number of statements to the Garda in recent years in respect of various events.

Has the Deputy?

Yes, it was very good of me.

Were they helpful?

Very helpful.

I found that it takes a great deal of time for a garda to take a statement in longhand. The facility to video-record a statement on a matter under investigation would speed up the process and ensure the existence of a proper record. When a garda is taking a statement, one has to pause while he or she is catching up, thereby breaking one's flow of thought. Is it possible to reconsider the section such that the rights of the witness and those of the garda to have the witness's statement video-recorded might be taken into account? That would speed up the process. This may not be the appropriate place.

It is an interesting point. It might be beneficial in practical terms to hear some words of experience from our colleague. If we are talking of the future, and how we will present witness statements in court, the best facility is video-recording. How does one deal with the issue of a statutory declaration or a sworn affirmation with regard to a video-recording? Would everything said be typed up from the video-recording and then sworn as an affidavit?

That is a good point. One can see why the oath was provided for. Instead of taking and receiving such a statutory declaration the member can take the person's statement on oath or affirmation and may administer an oath or affirmation.

Would that oath or affirmation involve a full transcription of everything said during the video-taped discussion, and would the person sign off on it under oath? I wonder about the practical implications. Deputy Howlin's point must also be considered. A statement made before a member of the Garda and witnessed by the member will generally stand up in court and has due weight accorded to it. Are we doing anything useful by giving another two hats, so to speak, to a member of the Garda, by saying that in the particular circumstances the person has the power of a peace commissioner, or in another circumstance the powers of a commissioner for oaths, and can have statements taken under oath?

Two issues are involved. One would expect that if a witness is being truthful and voluntary, a garda would take note of what that person is saying, and that it would not simply be an interview on a video-recorder, that a conversation about a case where leading questions are being put would not be reduced to a single narrative form. Exchanges such as "Can you remember anything else?" and the reply "No I cannot" would not be stuck in the middle of the proposed statement of evidence in the case. As Deputy Ó Snodaigh noted, if a garda takes a statement, he or she must first note the person's name and then guide the person in terms of subject matter. People do not normally enter a stream of consciousness, saying any old thing that enters their heads.

A video-recording would show whether that process is fair, or whether the garda was planting words in the witness's mouth, and whether the statement was reliable. The video-recording would corroborate whether something which is reduced to writing is a reliable account. What is reduced to writing will contain a statutory declaration by the person saying that what he or she said in the statement is true, which binds people to the proposition. A video-recording of a person making such a statement is much more impressive than a signature on a piece of Garda manuscript, as the jury will not be able to figure out from that how the person came to say certain things three months previously when the person is now saying something radically different.

Will the recording be on VHS or digital?

VHS is currently the norm.

All the pixels could be eliminated by a digital system.

There are technical arguments. In theory we should be able to have tamper-proof digital material but until we have that, people could be suspicious that splicing and chopping was done on a video-recording.

Would a copy be given to the person who made a statement?

Probably not in some cases.

It would be difficult using VHS tapes but would be very easy with digital, with just a CD.

Most people are not given copies of their statements in criminal cases. It is not a norm to hand out all the bits of one's investigation to people as one goes along.

For the video-taping to work, the process of taking down the statement would have to be video-recorded, and the written document would have to be acknowledged by the person. If the person is in voluntary, truthful humour, he or she would then be asked to sign a statutory declaration that everything said was true. That, combined with a video-recording, would be the optimal way of satisfying a jury that the witness to a murder who is now saying he or she saw nothing, spoke reliable truth when in the Garda station, and that what the person is now saying is not true.

Are we speaking of what the judge will allow to be admitted to the jury?

Yes. The judge has to rule on admissibility, but it will be like the admissibility of a confession. In the end, the jury will have the function of assessing whether it is credible evidence. The mere fact that a judge says the jury can see a video-recording does not bind a jury to accept it.

Could a person spend a couple of hours chatting with a garda and then be asked to make a statement?

That could happen. There could be a preliminary discussion leading into the formal taking of a statement. A detective would normally have visited witnesses in their houses and have listened to them saying they saw a murder, or whatever. A detective would not normally ask a person to stop and give a written statement, but would want to work out a picture in his or her mind. The detective might then ask for a formal statement to be made in the house or in the Garda station.

That is the crucial element. One is visited in one's own home by a detective, and if one makes it an absolute pre-condition that all statements must be video-recorded, one would have to go to where there was a video-recorder, or alternatively, the detective would have to bring a mobile video-recording studio along to one's house. That is another issue one would have to think about.

I want to be clear on the purpose of section 16. It applies to all cases where a statement has been taken by a member of the Garda Síochána in the course of investigating an offence for which one can be arrested, and the person "may" make a statutory declaration, assuming the person is not the suspect.

The witness sometimes becomes the suspect. Sometimes, a person who says he or she saw a man run down the street, having murdered someone, turns out to be the murderer.

It is likely that in most cases, the prime suspects lie among the immediate milieu of people interviewed. At least that is what happens in all the crime movies I watch.

I would not agree with that proposition. I think that in most cases, the Garda would try to build up the case outside the interviews.

I want to understand the import of this section. A witness may make a statutory declaration, assuming one is not at the time suspected by a Garda member of having committed the crime. Will the investigating Garda member not take a statutory declaration from that person if he or she believes the person to be the suspect?

Whose option is it? Is it the option of the interviewee or the Garda member?

Will it be an issue afterwards? Would a bright lawyer later ask why such a person was not a suspect? The logic would indicate that he may well be a suspect. What is the whole point of the statutory declaration at the end? The idea is that it adds validity to the court by taking it, but since it simply consists of the member wearing a different hat, I do not know if there is any additional weight to it. A normal witness statement signed by a member of the Garda Síochána has significant weight and is reasonable enough in a court of law. This amendment is the same thing dressed up so I am not sure if it would have any greater weight. Is that what the Minister intends?

This is part of a process of evaluating whether a previous statement was reliable.

Is the Minister suggesting that the garda has to suspect whether the individual in question might recant his statement?

No. In the UK, nearly every witness statement has a provision of that kind.

Do the police administer that policy?

Yes, a person makes a declaration similar to that here under section 21 of the Criminal Justice Act 1984. A statement which has that written on the bottom becomes provable by consent in the absence of a witness if there is no contest on the testimony. A jury can then receive it. It is a fairly formulaic part of taking a witness statement. The person, having set out his testimony, then goes on to declare that what is on the document is true to the best of his knowledge.

Must the person making a statement make a statutory declaration? Must he take an oath or an affirmation?

No. The Garda has to do its best with witnesses and some people will say they are not into that. Some people make statements and have no intention of turning up at court to give evidence. They provide information that is off the record but it must be taken down.

In practical terms, is it the intention that we change our entire system? If I remember correctly, the current situation is that the person signs the document and the garda signs his name and number as a witness.

The practice has moved on a bit from the Deputy's day and from mine in respect of non-suspects. It is now normal for this statement to be included in witness statements.

It could not be normal to have a declaration in the form of an affidavit as we are now only providing for it.

It is an offence to make a false statutory declaration. If somebody makes such a declaration to the Garda, that person is not simply misleading the Garda, he is also committing a crime.

Is that a big step? The Minister has been involved in many cases and I am sure he has seen witness statements made in good faith that flatly contradicted——

I am saying that it is a crime if the person knowingly makes a statement that is false, not if the person gets it wrong.

I am referring to the concept of building up a case by interviewing witnesses that do their best to recollect. If they are then required to make a statutory declaration, people might reconsider.

It is not such an innovation when one thinks about it. Prior to the Criminal Procedure Act 1967, every indictable offence was on the basis of depositions. A book of evidence was created by a series of depositions. Every witness had to be brought before the district court and deposed on every point of evidence. It was taken down and converted into a text, but it was all done on oath and it constituted perjury to provide evidence through that means for a trial on indictment if it were known not to be true. In the 1967 Act, the idea of assembling sworn testimony before someone was indicted was swept away and a book of evidence, which was just a narrative of what people proposed to say at the trial, was substituted for it. At the beginning people were entitled to go back to the old deposition procedure if they wanted, but that was changed in the case of the State (Sherry) v Wine where people could not be cross-examined. Therefore, this is not a radically different proposition from things that have existed in the past.

In one sense, it is in favour of the accused that he or she cannot be put on trial unless people put their heads on the block in respect of the truth of what they have said about the accused. It used to be case that one could never be tried before a jury unless people had sworn the bones of a case against the accused before a District Court judge, who would then send the accused forward for trial.

This is neither one nor the other. It is a "may".

It facilitates.

It does and it does not. I am still not clear on the clause referring to the person who is at the time suspected by any member of having committed a crime——

Not being a person.

They are not supposed to use this procedure——

To interview a suspect?

——to interview suspects because suspects at different times have to be warned that they are not obliged to say anything.

In the initial stage of an investigation the gardaí may have no idea who might be a suspect.

Suspects have particular rights which are predicated on the fact that they are normally in detention. Witnesses are not normally in detention and they are not obliged to make statements unless they wish to do so, but anything they say will be taken down and may be given in evidence. This amendment deals with a different procedure. It deals with people who are not suspects but witnesses. It introduces a degree of formality in order that when they commit themselves to an account which may be used in a criminal trial they know that there could be serious consequences to making this statement.

Who makes the decision on that? Subsection (1) states that a person may make a statutory declaration. Is it at the discretion of the person making the statement?

Yes, as section 16 is currently drafted. A garda cannot force someone to make a statement.

The initiative is then with that person. It is not that the garda may request.

I presume that the garda would invite the person to do so.

They do not have to do so.

Most witnesses would not have this in the back of their mind and suddenly say they wanted to make a statutory declaration.

Have we any information available on the practice in other countries? Canada has been mentioned as a country from which we are learning. Is this type of procedure followed there? I am particularly interested in what is a fairly revolutionary procedure of having declarations and sworn affidavits taken by the policeman, as opposed to an outside person duly authorised by law.

That is an innovation and is something I want to examine carefully. We should start from the beginning again. There was a situation where one could not be put on trial for a serious offence without sworn testimony already in the bag, which would then have to be repeated at trial. That was swept away and a paper-driven process was put in place of it. Witness statements were put into books of evidence and there was no judicial supervision or formality or oath taken on those. Then, in section 21 of the Criminal Justice Act of 1994, the needle went back a little with the provision that in certain cases, certain evidence can be admittedif the accused accepts it, provided it includes a declaration by the witness that its contents are true and that the witness knows that he or she is liable to be prosecuted for saying anything known to be false.

Sworn or declared before whom?

It was purely a form of words contained in the statement. It was a formula.

What we are dealing with here is intended to be in ease of the accused, that a person will not allow a garda to blather on about something and simply put his or her name to a statement. It at least draws attention to the fact that the person is taking a solemn step vis-à-vis the accused person. It ensures that people will not just decide that they want to get out of a Garda station and sign any old rubbish put in front of them in order to do so.

I am concerned that it would be yet another minefield for the prosecution to get through.

It is not intended to make this process easy but to provide that where the Garda are dealing with a crime and consider it prudent to have the witness's evidence formally recorded, for whatever reason, that people cannot be——

Does the Minister envisage that this would be exceptional?

Yes, I think it would be exceptional.

It would not be the run of the mill.

No, because the difference between video recording in a formal process and just sitting down in somebody's living room with a clip board and taking a statement is significant.

What is interesting, from a drafting perspective, is that if one opted for an affidavit under oath, which would generally have greater weight than a declaration, it would appear that such an affidavit before a commissioner for oaths would not be dealt with by this section. It is only the member who can take the person's statement on oath or affirmation.

Section 15 (3) states that

"In deciding whether the statement is reliable the court shall have regard to—

(a) whether it was given on oath or affirmation or was video recorded, or

(b) if paragraph (a) does not apply in relation to the statement, whether there is other sufficient evidence in support of its reliability”

In that context, if a person swore——

Before a commissioner.

Before a solicitor or some such person, who handed it in, that is something of which the court could have regard.

That deals with the oath and the declaration but what about the requirement that the witness understood that he or she had to tell the truth. Does that have to be included here?

That is the item I propose to delete, namely section 15(2)(c)(ii), that “the court is otherwise satisfied when the statement was made the witness understood the requirement to tell the truth”. What does the phrase, “the requirement to tell the truth” actually mean? What is the requirement to tell the truth, conceptually? Which requirement is it? We all know the story of the child whose capacity was under examination by a judge. The child was aged six and the question arose as to whether the child should be sworn in. The judge asked the child what he thought he would be doing if he took an oath. The child said he would be promising to God to tell the truth. The judge asked the child what would happen if one did not tell the truth and the child said one would win the case.

We will have to come back to these issues on Report Stage.

Is section 16 agreed if we return to the issues on Report Stage?

Yes, subject to the issues raised being examined later.

Question put and agreed to.

We will break for lunch and resume on section 17 at 2.15 p.m.

Can we resume at 2.30 p.m.? Some of us have telephone calls to make and would like to eat too.

We will resume at 2.30 p.m.

Sitting suspended at 1.15 p.m. and resumed at 2.30 p.m.
SECTION 17.

Amendment No. 82 is an alternative to amendment No. 81 and amendments Nos. 83 and 84 are related. Therefore, amendments Nos. 81 to 84, inclusive, will be discussed together.

I move amendment No. 81:

In page 19, subsection (1), to delete lines 38 to 42 and substitute the following:

""competent person" means a person employed by a public authority and includes an immigration officer who is deemed to have been appointed as such an officer under section 3 of the Immigration Act 2004;".

The amendments to section 17 insert a revised definition of "competent person" for the purposes of taking other witness statements. This is a technical amendment having regard to the particular manner in which immigration officers and officers of the Revenue Commissioners are appointed or employed. The amendment deletes the reference to an officer of the Revenue Commissioners in the definition of "competent person" because such officers are encompassed in the definition of public authority in paragraph (a). “Immigration officer” is included in the meaning of “competent person” and is deleted from the meaning of public authority. A garda may operate as an immigration officer. He or she is employed as a garda but is appointed as an immigration officer.

Amendment No. 84 substitutes "Health Service Executive" for the various health boards and amendment No. 82 relates to the change from "the" to "an" Garda Síochána. As I stated on section 15, these sections are necessary to deal with a real and growing problem. The proposals are reasonable and contain safeguards to ensure that situations where statements are to be admitted are to be regarded as exceptional and require careful scrutiny by the trial court. I should not withdraw my proposals, although Deputy Ó Snodaigh will oppose the section.

I do not support Deputy Ó Snodaigh's approach. The amendments are sensible and technical.

In order that I can better understand the proposed change in the definition of "competent person", why has the Minister dropped "other than the member of the Garda Síochána"?

A member of the Garda Síochána——

It could be an immigration officer.

The phrase used is "employed" as a garda, but "appointed" as an immigration officer. As section 16 deals with the Garda, there is not much point——

Where a garda acts as an immigration officer, the Minister wants him to be included in section 17. Is that correct?

Is the reference to the HSE all-encompassing?

It is in lieu of paragraphs (e) to (g), inclusive.

I can see that. Does it capture all those? Are all former health board employees now HSE employees?

I cannot say that is the case, but only HSE employees will have this capacity.

Is the Minister satisfied that this is broad enough?

Amendment agreed to.
Amendment No. 82 not moved.

I move amendment No. 83:

In page 20, subsection (1), lines 1 and 2, to delete paragraph (b).

Amendment agreed to.

I move amendment No. 84:

In page 20, subsection (1), lines 6 to 9, to delete paragraphs (e) to (g) and substitute the following:

"(e) the Health Service Executive,”.

Amendment agreed to.
Question proposed: "That section 17, as amended, stand part of the Bill."

I have concerns, as does the Human Right Commission, about employees of public authorities making the statements and being deemed "competent persons". The Human Right Commission argued that the statements would have a lower guarantee of trustworthiness than statements made to gardaí. My earlier point was that if a person was making a statement to a HSE employee, the option to ask for it to be videotaped would not exist. I asked that the option be there for witnesses making statements to the Garda. I do not know whether it is reasonable or practical to expect a wide range of statutory bodies to have the capacity to videotape statements. In its submission on this the Human Rights Commission said there was no provision in the Bill to inform a person that his or her statements may be admissible as substantive evidence in a criminal trial. Somebody may make a statement without knowing where it will end up. Its recommendation was that the statements made to competent persons employed by a public authority as defined should not be admitted under any circumstances as evidence of the facts stated therein in the course of a criminal trial, as the circumstances in which such statements are made will not provide a sufficient guarantee that such statements are reliable.

We are going further than I believed we would when I initially read the Minister's proposal. We are going further with this than most people would be aware of, and I am concerned about it.

Has the Minister a response?

There are people who find themselves in circumstances where they carry out functions which later have relevance. These include immigration officers and harbour and airport police. These people are in a position to take statements. Statements made to such people should not be swept aside as being without value. Deputy Ó Snodaigh has stated that it is very unlikely that a video recording machine would be available to such people, but it should be borne in mind that a court and jury, in the last analysis, decides on the weight to be attached to any prior inconsistent statement proffered in evidence.

If a witness wants to repudiate a statement and can do so in any credible way, a judge and jury will be slow to take the prior inconsistent statement as evidence of the truth. This would come about if there was any credible explanation by a person who would disown such a statement. The purpose of this is to give people the opportunity to make a statement which has some solemnity, in order that a case will not occur where people are prosecuted on one basis but the case falls apart afterwards because witnesses disown their statements.

I will try to explain more clearly the problem I have. In local authority housing, for example, if there is a case of anti-social behaviour under the Local Authority Act, an officer from the local authority would clearly be given permission to take a statement. This occurs in any case if there is a dispute between two families. Somebody could make a statement to the officer, and I presume if there was a court hearing afterwards, the statement could be referred to as evidence. Often it has been found that statements have been made in such circumstances specifically because it can undermine a case made by the other neighbour.

With regard to what was being discussed earlier, with a statutory declaration the person is informed that giving a false statement is an offence. To give a false statement to a local authority is not an offence, as far as I know. Such a statement could nonetheless be used in a court case. I assume the same is true for some of the other bodies, although with some it may be an offence to give a false statement. In the others, officials will rely on people's good will and their own judgment. Often, especially in local authority estates, the officers cannot find the correct version of events and will issue a warning to both families.

To rely on these statements or present them as any type of evidence in a court case goes beyond what we discussed earlier, a witness statement made specifically to the Garda Síochána. The Garda has powers to charge a person in that case if a false statement is made. Immigration officers can be called as witnesses and state that a man or woman made a statement. That would have the same effect as a statement from the particular person being produced, unless the person appears and can be cross-examined.

We should be more careful on the issue of taking a statement on its own merit. It must be ensured that the person is told when a statement is being made which could be used in a court case, that to give a false declaration makes that person liable for an offence.

I will examine again the whole of section 17 to see if it is too widely drawn. As we have been debating the point, a particular group has occurred to me which is relevant. If other groups are eligible, investigating officers of the Garda Ombudsman Commission should be eligible under this system as they have powers of arrest. It is strange that this group does not feature among the listed groups. If I come to the conclusion that any of these are unsafe categories to whom to extend the power, I will be happy to delete them.

A person has to be sent forward for trial for an arrestable offence, a stipulation contained in section 15 (1). It is not for people parked on double yellow lines or who have held a rowdy party in a house. Such actions are not covered by that. The real issue, which we will review between now and Report Stage, is the circumstance in which a statement is made. For example, the Health Service Executive could comprehend cases of child abuse, and the question that must then be asked is if there would then be adequate safeguards with regard to statements made to social workers. Would these be subject to the discipline of the Garda Síochána, and would it be clear to somebody making a statement to them that the statement would be likely to be used in the trial of an indictable offence per se?

That is an issue on which there should be a clear view. If we widen the matter to include a very broad variety of previous inconsistent statements, we must collectively ask ourselves whether somebody making a statement in these circumstances should be warned that he or she is making a witness statement intended for use in the prosecution of a serious arrestable offence. I do not want to cast the net too wide to the extent that internal management inquiries in Aer Lingus might throw up material which could subsequently be relied on in court. As Deputy Ó Snodaigh stated, by definition, such statements will not be video recorded. I want to be careful about that.

Unless I am missing something, section 17, dealing with other witness statements, does not seem to be directly connected to section 15. It seems to be phrased on a stand-alone basis.

It is an extension of the Statutory Declarations Act but it is not tied down to the prosecution of arrestable offences in any shape or form.

As this section is framed at present, any such statement is not admissible.

It is. Section 16 is not tied into section 15.

It refers to the making of a statement during the investigation of an arrestable offence.

Section 17 merely seems to tie into the end of section 16 in regard to statutory declarations.

It does not say for what purpose these statements can be used.

That is the point I made. I am slightly worried that in regard to a statement being taken in a different context, say by a superior in Aer Lingus in connection with an internal audit investigation, it would not be clear to the person making the statement that they would go into the criminal justice process.

My concern is on the other side of the coin. As section 15 is framed, a court cannot consider a statement taken under section 17.

Under section 15(2)(c) there would be a way in by way of statutory declaration. It is not completely irrelevant.

It is not in orbit.

I concede that it is very loosely tied in. One of the categories, referred to at section 17(1)(j), is a company in which all the shares are held by, or on behalf of, or by directors appointed by a Ministers. That probably refers to Coillte. In what circumstances would an officer of Coillte take a statement from somebody which could end up being waved around in a court in front of a jury? It is not quite clear.

It is the Minister's Bill.

Exactly. It may be too wide an ambit.

Having listened to the debate so far, it is not clear to me what the section does.

The section makes them competent authorities, like solicitors and commissioners for oaths, to take statements or to receive statutory declarations.

Why? There is a well established procedure for making statutory declarations and people understand it. When somebody who is lawfully authorised takes such a statement and asks that one signs it, one knows what one is about. To suddenly give a whole new category of people this authority damages the notion of what a statutory declaration is. I have heard no compelling reason for doing that.

Why were TDs left out?

That is a good point.

It excludes certain TDs.

There has been a consultation process. I understand the Director of Public Prosecutions is of the view that statements made today on oath to a court of justice in a civil case or statements made to a tribunal of inquiry are admissible. This could apply if, for example, somebody came before the Moriarty tribunal and stated they saw certain things happening and subsequently when a criminal prosecution was brought the person said they had completely forgotten it.

I do not think it can be adduced in any event.

It can, except that the evidence of a witness cannot be used against him or her.

Exactly.

If the Deputy testified against me in a tribunal of inquiry——

There is every likelihood of that.

——and I am later prosecuted on a criminal charge, the idea that the Deputy could simply say he had nothing to say about that and has forgotten all about it when there is a report and a transcript and so on——

What has that to do with this section?

That might be a more appropriate example than the one involving a company owned by shareholders.

Why would the Commissioners of Public Works be authorised?

That is the point.

I do not believe there is anybody on the committee that wants that as it is currently drafted.

I want it to stand part of the Bill while I reconsider its ambit.

Will the Minister re-examine it on Report Stage?

I am only one day on the committee and I do not know why we are dealing with this Bill right now. There is a compelling case for starting from scratch.

We are not going to start from scratch.

I suggest this from the perspective of 24 years as a legislator. It is a difficult Bill with which to deal because each section is virtually a stand-alone section. There are 211 pages of amendments to the Bill. I have had no experience of any Bill that has been so amended. Even the core of it as we address each issue is a little threadbare.

Let us be clear. This section is one which has already been considered on Second Stage and has gone through the full procedure.

Even the Minister is not wedded to it.

I am listening to the arguments being made against it.

I appreciate that.

If the Deputy wants me to remain hand-cuffed to every provision in the Bill I will do it.

Allow me to make the point, Deputy Howlin, that precedent and practice here show that the present Minister for Justice, Equality and Law Reform is amenable to accepting amendments and what is said by members, whereas other Ministers close up. We must take that into consideration.

I appreciate that and it is an indication of somebody who is in control of the Bill with which he is dealing. We have all dealt with Ministers of various shades and views who were not and were less likely to accept amendments. However, we are making law and very important law. I am the new boy here but it strikes me——

Let us be clear about this. There may be later sections that the Deputy believes have not been adequately thought out but this has been considered by the House over many months and arrived here in the conventional way.

All right.

While the point made by Deputy Howlin would be even more important in regard to the new amendments, if I may call them that, this debate is quite useful. What is important is that the views raised here are fully considered by the Minister, his officials and the Parliamentary Counsel. I make no bones about it. What I want to see is a decent Bill that will help in the fight against crime. It is of no concern to me which Minister deals with it in the short time available. One way or the other, this will be on the Statute Book in the relatively near future. Let us try to ensure it is as cast-iron as possible.

Question put and agreed to.
SECTION 18.

I move amendment No. 85:

In page 20, between lines 26 and 27, to insert the following subsection:

"18.—(1) All statements of witnesses shall be video-recorded and the holding cells, interview rooms and corridors of Garda Stations shall be routinely video-recorded also.".

Amendment put and declared lost.
Amendments Nos. 86 and 87 not moved.

I move amendment No. 88:

In page 20, subsection (1)(b), line 33, after “retained” to insert the following:

"and

(c) sanctions for any breach of these provisions”.

Amendment put and declared lost.
Amendments Nos. 89 and 90 not moved.
Question proposed: "That section 18 stand part of the Bill."

I will consider tabling another amendment to this section in regard to the ministerial regulations in order that any regulations resulting from this section would require the approval of both Houses of the Oireachtas.

Question put and agreed to.
SECTION 19.
Question proposed: "That section 19 stand part of the Bill."

Will the Minister explain the intent of section 19, in particular paragraph (b)?

This provision is related to the revised arrangements under the Criminal Procedure Act 1967. Under the Criminal Procedure Act 1967, a book of evidence had to be considered by a District Court judge and this was revised in the 1999 Criminal Justice Act to allow for somebody to be sent forward for trial by the Circuit Court on a charge. The book of evidence has to be served on the accused before the trial but the District Court sends the accused forward. As a balancing aspect to that, the abolition of the preliminary examination, the accused person was given a right to apply to the Circuit Court — the trial court — to discharge the accused on the basis that there is no adequate case to meet in the documents supplied to him or her. That is part of the streamlining process to get trials on indictment forward to the Circuit Court and to allow that court to rule on the issue as to whether there is a case to meet rather than have a District Court judge do it which was considered to be a lengthy time consuming aspect of the criminal justice system.

The compensation for an automatic "send forward", if I may use that phrase, is that the accused person will be given a right to apply to the Circuit Court, the Central Criminal Court or wherever to discharge him or her on the basis that the documents furnished to him or her did not show a prima facie case on the same basis that there would have been a discharge in the District Court on the book of evidence during the old preliminary examination procedure.

The Criminal Justice Act 1999 refers to matters on which oral evidence may be given on an application to discharge. Oral evidence is extended to include evidence given on an audio-visual link or a video-recording of any evidence given through a live television link pursuant to that Part. This section will refer to any video-recording or audio-recording which may be admitted by the trial court as evidence of any facts stated in it. It is an extension of the right to apply for dismissal on the basis that one is entitled to rely on the substance of what is in any video-recording or audio-recording which may be admitted by the trial court as evidence of any fact stated in it.

Effectively, it is broadening the rights of the accused in regard to an application that there is no case to be made.

It widens the basis on which an accused might argue.

It takes into account that the accused can rely on any video-recording by way of support for such an application.

Yes. I do not think the prosecution would normally rely on this evidence because it would be a case brought against the prosecution.

We are talking about an application by the accused for a discharge. It is analogous to an application made previously in the District Court that there is no case to answer.

Apparently, this widens the ambit of the potential oral evidence available to an accused person to cover material in this form.

Question put and agreed to.
SECTION 20.
Amendment No. 90a not moved.

I move amendment No. 91:

In page 21, lines 23 to 32, to delete all words from and including "appropriate," in line 23 down to and including "add." in line 32 and substitute "appropriate.".

This relates to the reference of a question of law to the Supreme Courts. I wish to amend subsection (2). In the Minister's construction of it, the Director of Public Prosecutions, before referring a matter of law to the Supreme Court, may have consultation with the trial judge. I am advised that is a fraught procedure for a number of reasons. It could be construed as an affront to the court inasmuch as the DPP can proceed regardless of the views of the court. More fundamentally, the DPP, who is part of the criminal proceedings, is not required to consult the defendant as to the contents of the question of law and may well be perceived as going behind the back of the defendant in dealing with such a draft motion. Since the DPP can proceed on his or her own volition, it would preserve the independence of the court system if this reference, which I have no doubt is well intentioned, was deleted.

The purpose of this section is to allow the prosecuting authority in trials on indictment to refer a question of law to the Supreme Court for determination where there has been an acquittal. This is a very important point because at present in a murder case, for instance, a very important ruling on admissibility of evidence on grounds that it was unconstitutionally obtained or otherwise could be given in the course of a trial. While the accused might be acquitted, the State would have this item of law decided by a judge of the High Court, the Circuit Court or another court. If it applied to all cases, it would be regarded as dispositive of the point and there would be no point in bringing similar cases in the future.

There is no argument against the correctness of that procedure. It is a mechanism by which the appeal proceeds. I have no difficulty with the good intention of the Minister in including reference to a trial judge making an application. My advice is that it does damage to the separation and independence of the courts system. The DPP or, if the Attorney General is involved, the prosecuting authority may proceed regardless of the view of the court, which could be seen as a slight on the latter. Since the court should be independent of prosecution and defence even after the conclusion of the case, the requirement for consultation to take place in the absence of consultation with the defendant in the matter seems to go beyond that independence.

The real question is whether we are dealing with a symmetrical situation in respect of the rights of an accused. An accused person has rights, in certain circumstances, to have a point of law decided. In the case of an accused person, the decision relates solely to that accused person and the point of law will either be upheld or not. Where the State, with either the Attorney General or the DPP as prosecutor, wants to refer a general point without prejudice to the acquittal to the courts——

Why is the view of the trial judge of any importance?

It is necessary to ensure that the State is not misrepresenting the point of law a trial judge——

Where the State loses a case in the High Court and determines that it should be appealed, it does not consult the judge involved.

When fixing a point of law in a case stated, it is quite normal to get the tribunal involved in whether a matter is a point of law. The existing provision in section 34 of the Criminal Procedure Act 1967 states:

(1) Where, on a question of law, a verdict in favour of an accused person is found by direction of the trial judge, the Attorney General may, without prejudice to the verdict in favour of the accused, refer the question of law to the Supreme Court for determination.

(2) The statement of the question to be referred to the Supreme Court shall be settled by the Attorney General after consultation with the judge by whom the direction was given and shall include any observations which the judge may wish to add.

This covers the case where an accused person is acquitted on a point of law. However, a jury that has listened to the entire case might find an accused person not guilty, for example, on grounds of non-identification. Halfway through such a case a decision may be made on the admissibility of the accused's confession, which does not relate to the identity evidence that is eventually left to the jury to decide upon.

This new provision is to address those cases where the acquittal did not directly result from the ruling of law. Where the acquittal directly results from the ruling of law, there is a right to refer the point to the Supreme Court for decision. In a case where a trial continued and the jury acquitted the accused on a totally different issue without hearing the evidence that was the subject of the point of law decision, the DPP or Attorney General may wish to seek clarity on the law. I would take on board Deputy Howlin's point if I were inventing a role for the trial judge de novo. However, section 34 of Criminal Procedure Act 1967 provides that the trial judge be consulted and that he or she is permitted to give his or her observations in support of his or her ruling on the law to the Supreme Court.

Has that provision worked well?

It has worked so far. The provision applies only where the accused is found not guilty effectively by direction. It is proposed to extend the provision to cases where an accused may be found not guilty by decision of a jury but where a very important point of law may arise during the course of the case.

Is it a replication of the 1967 Act, with that change only?

It is a replication of the procedure. The consultation is not something we have only now cooked up. It has always been the case that the prosecutor, in obtaining a reference to the Supreme Court, is obliged to check it with the judge and let him or her make whatever observations he or she wishes on the point of law issue to the Supreme Court for its consideration.

I have listened to a very interesting argument. The overall purpose, in the public interest, is to get a point of law resolved, which requires that the question be put properly. If this provision assists in getting the question put properly, it is in the public interest to follow this process. I will return to the point as to whether the accused should have any role in the matter. We are clearly involving the Supreme Court in making a decision on a point of law in the public interest, which will form a precedent in the future. The more care taken and the more consultation that takes place in having the issues brought fully and properly before the Supreme Court, the better.

I am reasonably convinced by the Minister's argument. My intention was to make the procedure simpler. I did not want to involve the trial judge in a justification of his ruling. The courts stand alone under the Constitution and they make decisions. It is not for the DPP or anybody else to decide to appeal a point of law. What precisely did the Minister mean?

That is not the way it works.

I imagine that is the case. However, I presume a point of law would be sufficiently clear in the judgment for the Supreme Court to make a decision once it is referred. I am giving a straight line for the DPP to go to the Supreme Court on the matter without involving the judge. As one who wishes to preserve the authority of the courts, it seems to me that the DPP will appeal the matter to the Supreme Court and request for justifications on the matter before taking it further. My advice is that this could be perceived as a slight on the court by implying that by taking it to a higher court the right decision can be made. It seems to ask to judge to put his copybook in order so that it can be reviewed.

I concede the point made by the Deputy's advisers. However, I would put the opposite construction on the matter. The provision in the 1967 Act shows respect to the trial judge. One does not wander off to a superior court stating that a trial judge made an incorrect decision for particular reasons. The original trial judge might not have made his decision on that basis.

It happens in every other appeal to the Supreme Court.

It does not in this sense. Under the 1967 Act, where a point was referred, the Supreme Court was obliged to assign counsel to argue in favour of the decision. It was generally regarded that judges should not become parties in litigation but should, in limited circumstances in which their legal rulings are under scrutiny, have an opportunity not to have their decisions misrepresented and, rightly or wrongly, should have an opportunity to state the basis on which they, for example, dismissed a case or ruled a confession inadmissible.

If I were a trial judge who had excluded evidence or made a ruling of significance in a court case, I would not feel slighted if the Director of Public Prosecutions were to consult me indicating that he proposed to distil from my judgment a particular question for the Supreme Court and that I would be able to send to the Supreme Court my account of my reasoning on the issue. Rather than having people examine a transcript and state that I was somewhat woolly on this or that point, I would be able to state the reason for my decision on the particular point. Sitting members of the Judiciary would not consider themselves slighted by being given the opportunity to have their say when their legal rulings come under scrutiny. So far, I have not noticed any indication that this is the case.

When I served as Attorney General, the question arose as to whether it was right or wrong for a judge whose rulings had been referred to be represented by counsel of his or her choice. The general feeling of the superior courts is that it is better to leave it to the original parties before the judge to argue out the matter and to allow the judge to step back from the arena and not become combative in defence of his or her ruling.

Curiously, the provisions in this section are an advance on the 1967 Act, which states simply, as a bare provision, that the Supreme Court shall assign counsel to argue in support of the decision, whereas in this legislation it is proposed that, on a question referred to it, the Supreme Court shall hear argument by, or by counsel on behalf of, the Attorney General or the Director of Public Prosecutions, as may be appropriate and, if the acquitted person so wishes, by counsel on his or her behalf or, with the leave of the court, by the acquitted person himself or herself. If a very skilled layman handles his or her own case and the court is willing to listen to him or her, he or she would be allowed to present argument to the Supreme Court. In addition, such counsel as may be assigned under subsection (4) may present argument to the Supreme Court.

Under subsection (4), the Supreme Court is obliged to assign counsel to argue in support of the decision if the accused person waives his or her right to be represented or heard or if, notwithstanding the fact that the acquitted person exercises his or her right to be represented or heard, the court considers it desirable in the public interest to do so. For example, if the court was of a view that the point was of such fundamental importance that it should not be a matter for a solicitor, who had got his client off on various grounds on an afternoon in a rural Circuit Court, to come up to Dublin to argue the point, it might decide that the matter warranted the appointment of a separate team of counsel.

To return to Deputy Howlin's original point, this provision is not a slight on nor an interference with the independence or status of the Judiciary. Deputy Jim O'Keeffe will probably recall similar instances to those I encountered in my own practice, for example, when one asked a judge to state a case or appealed by way of case stated from the District Court or appeal commissioners on income tax, one always submitted one's proposed case stated to the judge who could then direct that it had no bearing on the matter which arose in the first instance.

To make a practical point, I have heard of cases in which judges who were asked to produce observations either did so in a tardy fashion or failed to do so. The section, as framed, imposes a requirement on the DPP to include any observations the judge may wish to add. I have in mind circumstances in which a paper is sent to a judge who indicates that he has observations to make but then-——

He sits on them.

Yes, I understand such cases are not unknown. In such circumstances, the section, as framed, could allow the process to be delayed.

The section is cleverly drafted because consultation means that a judge will be contacted and asked to forward any observations he or she may have on the grounds that it is a requirement that these be forwarded. However, if a judge is in a "do nothing" mode, the process will proceed.

To make progress and having regard to the fact that matters which would slight a judge are much better known to the Minister than to me, I do not intend to press the amendment.

Amendment, by leave, withdrawn.

Amendments Nos. 91a and 96b are cognate; amendment No. 92 is an alternative to amendment No. 91a while amendment No. 97 is an alternative to amendment No. 96b. The amendments may be discussed together.

I move amendment No. 91a:

In page 21, lines 41 and 42, to delete ", with the leave of the Court,".

This amendment arises from the provision that where an acquitted person so wishes, an issue can be addressed by a counsel on his behalf or, with the leave of the court, by the acquitted person. This appears to go against the grain in that an accused person in a case must obtain leave of the court to make representations. I accept, nevertheless, that the person in question will have been acquitted and will have only an academic interest in the point of law being argued before the Supreme Court.

Why is my amendment No. 92 an alternative to Deputy Jim O'Keeffe's amendment, particularly as they appear to be identical?

The difference is that Deputy Jim O'Keeffe's amendment contains an extra comma.

My amendment makes the same point. In subsection (3)(b), if the acquitted person so wishes, the Supreme Court may hear from counsel on his or her behalf or, with the leave of the court, by the acquitted person himself or herself. Given that an automatic right to counsel is provided, it is improper that the leave of court is required before an individual can address the Supreme Court. As far as I am advised, an individual has had a right since ancient times to represent himself or herself if he or she so chooses. It is improper to give counsel a right which is not given to an individual.

Let us examine the position. The accused person has been acquitted and is a free man and is out of the woods in respect of the charge in question. He could opt to defend himself, either in the court below or that above, if he had a live, personal interest in the matter. Subsections (6), (7), (8) and (9) give an extensive legal aid function to the courts to assist a person who is in this position. Let us imagine that a person's counsel has argued for days on particular a point and he is then acquitted of that count but convicted on three others and sentenced to 20 years in Mountjoy Prison. He may say that he will have his day in court and that he is going there to argue the legalities of this point. At that stage, the court must surely say that it is a net legal point and that the person may or may not be suitable to argue it — some would be suitable and others would not. Having somebody who could not follow the point at all contributing to an argument at great length might be entirely futile if a general point of public law were being considered.

All we are doing is giving the court a right, in certain circumstances, to claim that the point is fairly obtuse and that it will make lawyers available to the person in question if he wants to have his say in the matter. The lawyers could be chosen by the person in question from the entire legal aid panel. I am sure the court would apply this principle fairly. The court would say that since the person is acquitted, it is not necessary to hear his personal observations regarding the state of the law.

So speaks a distinguished lawyer. What will laymen know about such matters? There is a right to individual representation and, in this regard, one should bear in mind the consequences of saying that a person's lawyer has an automatic right when he or she does not. It does damage to a principle that the aforementioned difficult cases, which I believe would be few and far between, would not justify. The tedium involved in somebody doing exactly as the Minister described would be so rare that it could be tolerated. Other tedious affairs are endured by courts and I would prefer to preserve the principle that an individual has a right to represent himself or herself. I do not see it happening.

It is notable that, under section 34 of the 1967 Act, the Supreme Court decided to assign counsel to argue in support of the decision. It is not as if I am introducing a new principle. Rather, it could be argued that I am going in the opposite direction to the one that might be apparent. We are providing for the right of an accused person, with the permission of the court, to be heard and also for a legal aid system for such persons.

I refer to one who is no longer accused but acquitted.

The acquitted person, yes.

I suppose it is an academic point and the reason I was interested in arguing therefor is because the manner in which the provision is framed goes somewhat against the grain. However, we are talking about people acquitted in the courts. The outcome is not really of any personal interest to them and, therefore, the absolute right to appear in court may not be as strong as it would be if there were adverse consequences for them.

One could not say that in every circumstance.

While it is a point worth raising, I am not sure I would go to the wall with it.

Let us imagine circumstances where a person acquitted on insanity grounds was allowed to argue his or her case.

It would liven matters up in the Supreme Court.

The person would fit right in.

How stands this liberal amendment?

I will press not it.

Amendment, by leave, withdrawn.

I move amendment No. 92:

In page 21, line 42, to delete "with the leave of the Court,".

To prove that there is liberalism still, I will press my amendment in order to see how many Deputies are present in the Houses.

Amendment put and declared lost.

Amendments Nos. 93 and 98 are cognate and we will discuss the two together.

I move amendment No. 93:

In page 22, line 14, to delete "during" and substitute "in connection with".

The amendment is to make it clear that the confidentiality of the identity of the defendant will be protected after the proceedings and not simply during proceedings. Thus, protection will be ongoing.

The amendment proposes a better formulation than that contained in the Bill.

I presume that is what is intended.

If the idea is that the identity of the individual concerned is not to be disclosed——

Subsequent to proceedings.

——it is appropriate to change the existing wording.

I agree that the formulation suggested is preferable.

What if the Supreme Court rules that the point on which an individual was acquitted is unconstitutional and that he or she must, therefore, present before the courts again?

The entire process is without prejudice to the acquittal. The person cannot be tried again, even if the point is deemed unconstitutional.

Is that correct?

Yes. The two amendments propose a wording that is possibly better than the original text and I am willing to accept them.

Amendment agreed to.
Section 20, as amended, agreed to.
Sitting suspended at 3.36 p.m. and resumed at 3.59 p.m.
NEW SECTION.

I move amendment No. 94:

In page 23, before section 21, to insert the following new section:

"21.—The provisions of the Courts and Court Officers Act 1995 transferring the criminal jurisdiction of the Court of Criminal Appeal to the Supreme Court shall come into operation upon the passing of this Act.".

The purpose of the amendment is to insert a new section to bring into effect the provisions of the Courts and Court Officers Act 1995. I claim some responsibility for that legislation. It was the product of an agreement on the appointment of High Court judges during the collapse of the Fianna Fáil-Labour Party Government in the 1990s. A sub-committee of the then Cabinet brought forward a compromise that we thought would last but this did not prove to be the case.

One of the provisions of that Act, which has remained on the Statute Book since its enactment nine years ago without ever having been brought into effect, was to abolish to Court of Criminal Appeal and to transfer its jurisdiction in criminal matters to the Supreme Court. It was felt at the time that this would be an improvement in criminal law because it would, for the first time, give the Supreme Court, which has the finest judicial brains in the country and an enormous wealth of experience, general jurisdiction to deal with criminal appeals. The current scope of the Supreme Court in such matters is very limited, with the only cases referred to it by the Court of Criminal Appeal itself, coming within its purview. The commencement of the 1995 Act would have significant benefits for defendants because it would ensure they get a full hearing before the highest court in the land and one which has an extraordinary wealth of experience, rather than being dealt with, as now, by the Court of Criminal Appeal at a final level.

I am always concerned with regard to legislation, for example, the Solicitors (Amendment) Bill, when there are important principled decisions taken by the Oireachtas that are enacted but never brought into effect. I am further concerned that any Minister or any Executive would be able simply to decide not to have regard for an enactment of the Oireachtas. If legislation is not going to be put into effect, it should be repealed rather than ignored.

On Deputy Howlin's last point, I would be inclined to repeal the legislation. There is a danger of overload on the Supreme Court. Life is becoming more complex and the Supreme Court should be left to deal with points of law, constitutional matters and enormously important cases. There is probably a case for some form of a permanent Court of Criminal Appeal which would be the last and final court on criminal matters, other than on points of public importance and law.

I would be more inclined to the view that it would be best to repeal the provision in the 1995 Act transferring the criminal jurisdiction of the Court of Criminal Appeal to the Supreme Court and replace it, if necessary, with some form of permanent Court of Criminal Appeal which would be the final arbiter in criminal matters, other than on points of law.

The notion that there should be an appeal to the Supreme Court from the Circuit Court, the Special Criminal Court and the High Court when it is in the guise of the Central Criminal Court was contemplated in the mid-1990s, as Deputy Howlin has said. The Supreme Court was expanded to deal with such a contingency so that there would be eight judges of the Supreme Court, which would permit it to sit in a five-person and three-person configuration simultaneously. When I came into office I was concerned about this issue and then the Fennelly report on the criminal justice system was published in 2003. Mr. Justice Fennelly chaired the Courts Service working group which published that report and did not propose to abolish the Court of Criminal Appeal.

More recently, I have heard some murmurings that some members of the Judiciary favour a Court of Civil Appeal so that run-of-the-mill cases do not get to Supreme Court level.

Would that Court of Civil Appeal be above the High Court?

Yes, it would operate as a kind of intermediate court, between the High Court and the Supreme Court, on civil matters. In that way, an argument over some point of law, for example, in a judicial review in the High Court, would not require a Supreme Court decision. The question arises as to whether we go down the route proposed by Deputy Howlin or that proposed by Deputy Jim O'Keeffe, namely, that it might be better to unclog the Supreme Court and go down the latter——

Or expand it.

The choice is either to expand it or put in an intermediate layer. I am a touch agnostic on this subject because I can see the merit in both arguments. The Fennelly report is being considered in the Department of Justice, Equality and Law Reform. It is a very challenging report in some respects because it deals with a number of issues, such as entitlement to jury trial and the distribution of criminal work between the Central Criminal Court and the Circuit Court.

One of the points presented in the programme for Government was the possibility of establishing a National Criminal Court so there would not be delays and rape and other cases could be transferred from experienced Circuit Court judges to experienced High Court judges to get the work done more quickly. That proposal was a creature of its time because there was a perception that there was an enormous delay in moving on serious cases in the Central Criminal Court. As I understand it, there has been a very considerable improvement in the Central Criminal Court and it is much more up to date in its work now than it was when those various proposals were being discussed.

Mr. Justice Fennelly's report is very detailed. While trying to understand how his proposals would work in practice I had difficulty with the proposition that the Circuit Court could have jurisdiction in murder and rape cases alongside the Central Criminal Court. This gives rise to the problem of working out an allocation mechanism for that kind of work. What Circuit Court judge, in Wexford or Galway or anywhere else, would willingly take on a murder case if the consequence was that it would involve a three-week wipe-out of a lot of the court's other civil work? That is a serious issue on which I have not come to any conclusions. The Department is studying it at present. This is one of those issues that one can approach in a reformist frame of mind only to find there are more complications involved in changing the situation than leaving it as is.

Deputy Jim O'Keeffe referred to the question of making the Court of Criminal Appeal a permanent court. At the moment, that court normally consists of a Supreme Court judge accompanied by two High Court judges and——

They float, do they not?

It is not a permanent court in the sense that its make-up changes from week to week. Some observers have suggested it would be preferable to have some degree of continuity in the court. However, I have also heard contrary arguments on that issue and while I would——

The judges would not necessarily all have to be permanent.

I intend to talk to the Judiciary about whether continuity is desirable and practical. How long, for example, should somebody serve on a semi-permanent basis on the Court of Criminal Appeal? Would it be one law term, a year or what period? Would continuity be enhanced by any lesser period of service? Would it be appropriate to put people to exclusively criminal work for an entire year? These are issues on which I want to consult as widely as possible, rather than impose my own view. Without being unduly deferential, the Judiciary is in a better position to judge which approach is better than those of us at a distance. The argument for continuity is based on more consistency in sentencing and such matters. There are arguments against continuity so I want to consult widely and to afford the Judiciary the opportunity to make its views known before a decision is made.

What happens in other countries? Do other countries have superior criminal judges, especially at appeal stage? How do we compare to the UK or Canada?

I have a sense that there is a great deal more continuity in the UK than here and that it is not simply a matter of appointing a member of the House of Lords and two High Court judges, but I may be wrong. I am not convinced that the 1995 Act, no matter how illustrious its authors——

Do not claim authorship.

Just ownership.

Nor even ownership.

Collective ownership.

The main objective of that Act was to hold a Government together, but it did not work. I claim no ownership of it.

I am not convinced that giving responsibility to the Supreme Court for such cases would represent a significant advance on the present situation.

I am obliged to the Minister for the explanation of his thought process. The current situation is unsatisfactory and we need a sense of where it is leading. The Oireachtas had a settled view, although it may now be a dated view, that the Supreme Court should be expanded to deal with appeals. It is the highest court in the land and it is where the buck stops. Its members are supposed to be the brightest and the best and the Minister will no doubt end up there sooner rather than later. If that was felt by the Oireachtas to be the best course of action then, we should implement it. If it was not, then we should do something different. I am concerned from a legislative perspective that when the Oireachtas determines law and structure, it should not be thwarted by inaction. We should implement what the Oireachtas decided or put forward an alternative.

I concede that the administration of justice has become even more complicated in the past decade. The views of specialist courts are now trotted out regularly in areas of sexual abuse, company law and corporate crime. It is becoming so complicated that new structures are needed. Just as the Criminal Assets Bureau was needed to bring together talent that was not necessarily available to law enforcement, it might be necessary to consider new structures for the court system. There is no better person to do that than the present Minister for Justice, Equality and Law Reform and I hope we will see some movement from him in that regard. In the interim, I am not so wedded to the 1995 Act that I would divide the select committee by insisting on its implementation. From a legislative perspective it is not satisfactory to enact law and then ignore it.

Described as by the Deputy, the Bill sounds like a child conceived at a trial reconciliation between its parents. Without being partisan, I recall the Deputy's presence at the Cabinet table for a number of years after its enactment and he did not implement it.

We were nurturing a different spouse at that time.

It was a shotgun provision.

I will also permit myself an observation. I was accused of being diffident about my own Bill but the Deputy is being diffident about his own legislation.

Amendment, by leave, withdrawn.
SECTION 21.

Amendments Nos. 94a, 94b, 95a and 96 are related while amendment No. 96a is an alternative to amendment No. 96.

I move amendment No. 94a:

In page 23, line 10, after "person" to insert "who is".

The language in this section appears awkward but I am not sure if the amendment I have proposed makes it less so. Section 29(2) as inserted by section 21 of the Bill reads: "A person the subject of an appeal or other matter determined by the Court of Criminal Appeal". Is it the person who is the subject of the appeal? I have attempted to improve it by the insertion of "who is" although I am not sure if that is perfect. I put it forward in order that it may be examined.

My other amendments in this grouping are of a technical nature and for the consideration of the Parliamentary Counsel. We have already dealt with amendment No. 96b suggesting the deletion of “with the leave of the Court,”.

Is amendment No. 95 included in this group?

No. That will be discussed separately. Is it similar to the last one?

I could deal with it very quickly because I do not propose to push it too hard.

We will come back to it.

The question of whether to include the words "who is" is a textual, drafting matter. The Parliamentary Counsel believes it is better to leave out conjunctive language of that kind if the meaning is clear. It is a matter of style and preference. The other amendments in this group propose commas.

The amendment deals with an appeal to the Supreme Court on the determination of the Court of Criminal Appeal. It is not the person who is the subject of the appeal. It is the person who is affected by the appeal or moves the appeal. I will be satisfied if the Parliamentary Counsel will study the amendments.

Is the Deputy withdrawing the amendment?

I will withdraw it but I find the present formulation to be distinctly awkward. There is a danger that leaving an awkward phrase in the legislation will lead to technical arguments in the courts.

The Parliamentary Counsel will look at it.

Amendment, by leave, withdrawn.
Amendment No. 94b not moved.

I move amendment No. 95:

In page 23, line 14, after "Court" to insert "or the Supreme Court".

I do not intend to labour this point but I suggest, as an interim measure pending the enactment of the 1995 provision for the Supreme Court to be the appellate court in criminal matters, that it be entitled to give leave to appeal to itself in criminal matters. At present if the Court of Criminal Appeal refuses leave to appeal, that is the end of the matter for a defendant. The Supreme Court should have the right to grant leave, in certain circumstances, to hear appeals if it determines the matter to be sufficiently important.

That is a strange one.

It is a strange one because section 29(2) as inserted by section 21 of the Bill provides that a person may appeal a decision of the Court of Criminal Appeal to the Supreme Court if the matter is certified as a matter of exceptional public interest.

Section 29(3), on the other hand, deals with the powers of the Attorney General or the Director of Public Prosecutions to bring such appeals. The amendment refers to subsection (2) and proposes that the words "or the Supreme Court" be added, which would provide that an appeal lies from the Court of Criminal Appeal or from the Supreme Court to the Supreme Court if the Supreme Court certifies that a point of law of exceptional public importance is involved. It appears that the amendment proposes that the Supreme Court would be asked, in effect, to certify its own decisions.

That is not what is at issue. That is to misunderstand the amendment. According to section 29(2) the Court of Appeal can now simply shut off the avenue of appeal. What we are saying is that a case can be made on a point of law to the Supreme Court, in the same way that a case can be made for judicial review to the High Court, and the supreme Court can decide to hear it.

Where the Court of Criminal Appeal refuses to certify that a decision involves a point of law of exceptional public importance, the person will be able to appeal that refusal to the Supreme Court which will then consider if a point of exceptional public importance is involved. Therefore, it is not necessary in this circumstance to provide for the Supreme Court to certify directly for its own consideration that a point of law of exceptional public importance is involved. A person can appeal the refusal. It would be unusual, even on an interim basis, to provide that a court could certify something and then facilitate an appeal against its own certification.

There is no appeal against the court's own certification. If the Supreme Court allows an action, there is no appeal against it.

Section 29(2), as inserted by section 21, states:

A person the subject of an appeal or other matter determined by the Court of Criminal Appeal may appeal the decision of that Court to the Supreme Court if that Court or the Attorney General in any case or, if he or she is the prosecuting authority in the matter, the Director of Public Prosecutions certifies that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that the person should take an appeal to the Supreme Court.

That is not an appeal against a Supreme Court decision, that is an appeal against a decision of the Court of Criminal Appeal. I do not wish to make the issue too complicated. I see it as an interim arrangement to involve the Supreme Court as an appellate authority. We have already debated the issue and I do not want to reopen it since the Minister will reflect on the matter. I will not push the issue.

It is a slightly different point as we are discussing an issue of exceptional public importance. It is a point of law rather than a general appeal. The confusion comes from the reference to "that Court", which refers to the Court of Criminal Appeal in the way the subsection is laid out.

It does.

If the Court of Criminal Appeal did not certify that a point was of exceptional public importance, could the Supreme Court, in the absence of a reference from the Attorney General or the person making the appeal, take up the issue? It would be unusual I suppose.

My judgment is that the Supreme Court should have the authority to do that.

Would that be to take up issues on its own?

No, it would be on application to the court. It would be like a judicial review procedure at High Court level.

Somebody — or even a court — would have to make the application.

It would presumably be the defendant making the application.

I will reflect on the matter.

Amendment, by leave, withdrawn.
Amendment No. 95a not moved.

I move amendment No. 96:

In page 23, lines 30 to 39, to delete all words from and including "if" in line 30 down to and including "Court" in line 39.

I believed that the Deputy was not moving the amendment.

Why would I do that?

We discussed it with amendment No. 94a.

We did not discuss it and it is quite a different issue. If I am allowed, I will speak on it. From a procedural point of view, it appears that the Director of Public Prosecutions can give a certificate of leave of appeal to himself, but it seems a meaningless procedure to require the DPP to have leave to appeal to the Supreme Court. The DPP gives leave to appeal to himself in the current formulation. It would be more honest to give the DPP a free right to appeal to the Supreme Court without having to get leave to appeal. This relates to subsection (3).

The subsection states that the Director of Public Prosecutions certifies that the decision involves a point of law of exceptional public importance. Will this be sufficient in itself with regard to the Court of Criminal Appeal, the Attorney General or the Director of Public Prosecutions?

At least the present law has the advantage that the point of law must be certified by the DPP to the Supreme Court. Putting a full stop half way through the subsection would effectively lead to a situation where there would be a general right of appeal by the Attorney General or the DPP, as the case might be, to the Supreme Court on any issue.

The circumstance would be of exceptional public importance.

That is what the Deputy is looking to remove. If the court, the Attorney General or the DPP certifies that the point is of exceptional public importance——

What the Minister is asking is that the DPP applies to himself to certify it.

He does not apply, he certifies. He indicates that it is an important point.

Is that not meaningless?

It is not in this sense. He cannot just say that he would like an appeal on a certain point which is not all that important because there is public dissatisfaction. At least the DPP would be forced to stipulate the point of exceptional public importance and pin the colours to the mast. The DPP could then give reasons and it would not be a result of him being annoyed by a decision. He could certify the question.

The Attorney General is making the appeal, for example. The Minister is arguing that for him to make an appeal, he must certify it, and he is the certifying authority.

He cannot appeal on first principles with the argument that a decision is inconvenient and there should be an appeal to see the result. He must go through the self-denying ordinance of at least certifying to himself and going to the Supreme Court on the basis that he has identified a point of exceptional public importance.

It appears convoluted but I accept that it is probably better that there is at least a determining of the net issue to be appealed.

Amendment, by leave, withdrawn.
Amendments Nos. 96a to 97, inclusive, not moved.

I move amendment No. 98:

In page 24, line 20 to delete "during" and substitute "in connection with".

Amendment agreed to.
Section 21, as amended, agreed to.
SECTION 22.
Question proposed: "That section 22 stand part of the Bill."

We are dealing with section 2(2) of the Criminal Justice Act 1993, and the section 22 of this Bill states:

Section 2(2) of the Criminal Justice Act 1993 is amended by the insertion of ", or such longer period not exceeding 56 days as the Court may, on application to it in that behalf, determine," after "within 28 days".

I query the thinking behind the section. Perhaps the Minister would outline its purpose.

Its purpose is to provide a mechanism by which the time available under section 2(2) of the Criminal Justice Act 1993 in which to decide whether to appeal an unduly lenient sentence may be extended. The existing time limit is 28 days. However, it has often been the experience of the Director of Public Prosecutions that the transcript of a trial is not available within that time limit. The Director of Public Prosecutions must effectively rely on counsel's observations and on informal descriptions of what transpired. The view of the Director of Public Prosecutions is that it would be of great assistance to him to be in a position to have the transcript available to him before he appeals a sentence.

This measure is not to provide for a bare extension of the time to 56 days, rather it is simply to provide that in cases where he wants the time to be extended to 56 days, he can apply to the court within the 28-day period to extend the time limit. Therefore, the amendment is not simply to provide for a doubling of the period but to provide for circumstances where the Director of Public Prosecutions can make a case for giving himself a little more time to consider appealing a sentence.

In light of the circumstances outlined, I withdraw my opposition to the section. While I am not noted for having much sympathy for those involved in and convicted of having committed crime, it can be a little unfair on such offenders to have the question of an appeal on the leniency of a sentence hanging over them for too long a period. I accept the case made by the Minister of the position of the Director of Public Prosecutions, especially regarding the transcript of a trial not being available within the time limit.

I wish to make a brief observation and, prior to doing so, signal that it is probably not in order for me to do so. One of the issues that causes great aggravation is the period between decisions of the High Court and the perfection of those decisions, which can extend to many months. I do not know whether a view has been taken that there should be a timeframe or at least an examination of the support mechanisms because the current process is clogging up the appellate system where the perfected judgment, in many civil cases in particular, takes months on end to present, and the clock does not start ticking until the perfected judgment arrives. I make that observation on tightening up the timeframes involved.

I hear what the Deputy says but I am disappointed if that is the case. Usually perfected orders should be capable of being drafted by the side who wants to rely on them either for the purpose of appeal or for the purpose of setting the time running against an appeal. It is a matter on which I will confer with the Courts Service.

I thank the Minister for that.

Question put and agreed to.
SECTION 23.

I move amendment No. 99:

In page 25, subsection (1), line 14, to delete "tried on indictment" and substitute "who has been tried on indictment,".

This amendment relates to the style of language used. Returning to the point on the use of plain English, in this section we are dealing with a person who has been tried on indictment. That is the language people would normally use in such circumstances. I suggest we do likewise in this section. It is a stylistic point for referral to the Parliamentary Counsel.

Does the Deputy wish to withdraw his amendment on the basis of requesting the Parliamentary Counsel to consider it?

Amendment, by leave, withdrawn.

I move amendment No. 100:

In page 25, subsection (1), line 17, after "appeal" to insert "against".

This is a drafting amendment to insert the word "against" after the word "appeal".

Is it simply a technical amendment?

It is purely a technical amendment.

Amendment agreed to.

I move amendment No. 100a:

In page 25, subsection (2), lines 21 to 23, to delete all words from and including ", or" in line 21 down to and including "determine," in line 23.

This section deals with an appeal against an order for costs against the Director of Public Prosecutions or the Attorney General. Perhaps the Minister would outline his thinking behind this provision. It is unusual for such an order for costs to be made. In many instances legal aid is provided for those appearing before our criminal courts. I am not sure of the percentage of cases involving an order for costs or whether it is only in the case of particular circumstances arising that the court would make an order for costs against the Attorney General or the Director of Public Prosecutions. If such an order for costs arising is unusual, why are we providing for such an appeal against an order and why are we extending the time for the taking of such an appeal? The Minister might outline his view on this section.

As the Deputy said, it is true that the great majority of indictable crime cases are dealt with on legal aid and, therefore, the question of costs does not normally arise. However, where it does arise, it is only fair that the Director of Public Prosecutions or the Attorney General, as the case may be, should have the right to appeal it if he or she considers that the costs have been unfairly awarded against him or her. Since costs are normally a discretionary matter and since generally in criminal matters the courts have been very sparing in awarding costs either way, it seems it is not unfair to give the Director of Public Prosecutions a right to be heard by an appellate body on the rare occasions when costs are awarded and in the rare subset of those rare occasions when he thinks an injustice has been done to him.

I was not even aware that a person could get an order for costs against the Director of Public Prosecutions or the Attorney General in a criminal trial. This arises rarely and only where the person tried on indictment is acquitted and in the rare case where the judge is of the view that costs should be awarded. If we are trying to ensure our criminal justice system is fair, is it fair to introduce a provision where an appeal can be brought against such an order?

Furthermore, we are extending the time for bringing such an appeal. Many of us are keen that the criminal law should be as tight and as tough as possible in regard to those who commit crime but, notwithstanding that, we do not want to go overboard, especially in a case where a person is acquitted. Surely, the objective should be to try to ensure that such acquittal will arise, as far as possible, on the merits of the case in order that we will remove technical defences as far as possible. Where such an acquittal arises, surely our objective should be to try to ensure that the person charged and so acquitted is put in the position in which the person was prior to being charged. What is proposed goes a little against the grain from the point of view of fair play.

I disagree with the logic of Deputy Jim O'Keeffe's position on this matter. Assuming a person, whose financial means are such that he or she would not qualify for legal aid, is prosecuted, acquitted and the trial judge, who has possession of all the facts, is minded to award costs, what possible justice is there in asking an appellate court to sift through all the issues again to determine whether costs should be awarded? It is a mechanism that would clog up the system unnecessarily and would probably cost more in legal time and costs than would possibly be saved in cases where a reversal of the costs order might be made. It appears to be extremely parsimonious without bringing much benefit to the Exchequer in the long term. Where there is an acquittal and where the award of costs is made by the trial judge, who is certainly the best person to know all the facts and who has been present for the entire discussion, why would that be second guessed by an appellate authority? It is not normal.

The Director of Public Prosecutions asked us to include this provision. In addition, there could be a case where somebody might get off on a bad point——

On a technicality.

——on a technicality and costs could be awarded in his favour.

They do not need to be. It is the trial judge's decision.

Yes, but if the trial judge makes two errors by, first, getting the law wrong and, second——

They are obliged to get the law right now. We are making the law.

If he gets the law wrong and then compounds the matter by giving a bundle of money to the lawyers who have just put him wrong on the law, in those circumstances the Director of Public Prosecutions might feel properly aggrieved. If the basis on which the person was acquitted was wrong as a matter of law——

Has the Director of Public Prosecutions alerted the Minister to individual cases where——

No, I do not believe he has done so.

It is a bad precedent.

If the Director of Public Prosecutions loses his case and is told to pay the costs, he now has a right, on a point of law, to set matters right.

It seems that what he is seeking is a situation where if he does not get somebody on the criminal charge, he will get him in the pocket.

Not at all. He is saying that the person got off and he will appeal the matter to the Court of Criminal Appeal or to the Supreme Court. The person got off and there is no reason that an award of costs should be added to this. It is not normal to award costs in a criminal acquittal. It is, therefore, a jurisdiction which, in my experience, is very sparingly applied. On the other hand, if costs are awarded on a solicitor and client basis, a huge sum of money could be awarded in favour of somebody. In those circumstances, the Director of Public Prosecutions should have a right to have somebody review that decision if he thinks it was unfairly invoked against him.

We are focusing on penalising criminals, and rightly so. However, in this case we are discussing somebody who has been acquitted and it is a question of who will pay the huge sum of money. The trial judge believes it should be paid by the State. If it is not paid by the State, it must be paid by the person who, in law and possibly in fact, is innocent. Just because they have means above the limit for qualifying for legal aid does not mean that they are disgustingly wealthy. This burden of costs could be an enormous penalty for them. We have heard regularly about people who have been unfairly prosecuted or unfairly pursued. We should not go overboard. If somebody is acquitted, let us ensure, in so far as we can in framing the law, they are not acquitted on a technical basis. If, subsequently, they are acquitted on the merits, we should not go overboard in penalising them unduly.

Does this section follow the previous section where the Director of Public Prosecutions is entitled to appeal to the Supreme Court?

The appeal does not lie to the same court. It lies from the Circuit Court or the Central Criminal Court to the Court of Criminal Appeal.

One would expect that if he was seeking an order against the costs, he would also be appealing the case to a higher court. Would that be determined within the 56 days under normal circumstances?

Before the Minister responds, the point made by Deputy Jim O'Keeffe is compelling. Whatever the reason for the acquittal, the person is acquitted. One cannot say that as it is a bum acquittal, we will nail the person for the costs. That is not justice.

It is equity.

No, one cannot do it. If somebody is not found guilty of the crime, one cannot punish them through a secondary means. Certainly, one cannot punish him simply because he is over the means threshold for free legal aid. That would clearly be unconstitutional because he would be in a different category simply as a result of his means.

In my 20 years' experience as a barrister conducting a fair amount of criminal cases, the number in which costs were awarded to an accused person who was found not guilty in the Circuit Court or the Central Criminal Court was tiny. The great majority of people who were acquitted were never, therefore, awarded their costs. That was the practice. If the Deputies are saying that costs should follow the event in criminal cases generally——

I am not. I am saying that the trial judge determines it.

Yes, but in many cases in the civil sphere one can appeal against a costs decision if it goes the wrong way. However, if one were to bring into the criminal sphere the notion that costs would follow the event and if one is interested in equity, the State should be able to recover the costs against the accused where somebody is convicted of a serious offence.

That is a different argument.

Let us say that somebody owns a large farm and that he or she is convicted of rape and the State has gone to much expense to convict the person, if we introduced a new system whereby the State can also recover the cost of the criminal prosecution against their assets——

I hope the victim rather than the State would take the farm.

Perhaps both. I am simply making the point.

That is a separate argument.

If we start making a first principles argument that somebody who is acquitted should not be punished by having costs taken away from them, the real question is why they are not granted costs as a matter of course when they are acquitted. My point is that in exceptional cases where costs are awarded, there must be a proper legal ground for this. If it is a proper and reasonable decision, the Court of Criminal Appeal will in all probability not reverse it. Where the Court of Criminal Appeal believes that it is not a reasonable decision, the Director of Public Prosecutions is entitled to some remedy rather than simply being obliged to pay up and not argue the decision.

I will not go to the wall on this point. Inequity arises where, in the rarest and exceptional circumstances, the trial judge feels compelled to make an order for costs and leaves it open to appeal. However, I do not feel strongly enough about it to go to the wall on it and I will not press my opposition further. Perhaps between now and Report Stage, the Minister will make inquiries in this regard. I had never heard of such a case. How often do these cases arise?

I will make an inquiry and I will write to the Deputy about it.

There is also a practical issue. An appeal would be probably as costly as the original trial and would lead to more clogging of the system.

Not necessarily. Following a three-week case, a few hundred thousand euro could ride on a costs decision. For example, the legal costs in CAB cases are flabbergasting.

That is the lawyers.

If somebody marked a criminal brief for €50,000 or €70,000 and received a refresher of €5,000 daily and the solicitor charged a similar fee——

Look at what the Minister is missing.

I begin to regret my decision to spend all my years in politics.

Such cases are extremely rare. However, the Director of Public Prosecutions must pay the costs.

How many cases have taken place?

I will find out.

It is the State rather than the DPP against the individual.

It might also make a High Court judge hesitate for a second if there was an application to him or her for costs and he or she realised the decision was appealable.

Amendment, by leave, withdrawn.
Section 23, as amended, agreed to.
NEW SECTIONS.

Amendments Nos. 101 and 102 and amendments Nos. 1 to 20, inclusive, to amendment No. 102 will be discussed together.

I move amendment No. 101:

In page 25, before section 24, but in Part 4, to insert the following new section:

"PART 5

AMENDMENT OF FIREARMS ACTS

24.—In this Part "Principal Act" means the Firearms Act 1925.".

Both amendments provide for the insertion of new definitions in section 1 of the Firearms Act 1925. Amendment No. 102 provides in some cases for the insertion of additional definitions in section 1(1) and, in others, for the substitution of other definitions. Deputy Jim O'Keeffe has tabled a number of amendments to my amendment, which propose the deletion of section 1(1), which provides for definitions, and its replacement with a new consolidated definitions subsection. He proposes the deletion of the definitions under the 1925 Act and their reinstatement together with new definitions I propose to insert. While I understand the Deputy's wish to have a consolidated set of definitions for all the Firearms Acts, the difficulty with this approach is a number of the definitions under the 1925 Act, which he proposes to delete and reinstate, have been substantially amended in subsequent firearms legislation. For example, the definition of "firearm" in the 1925 Act was substantially extended over the years, particularly under the Firearms and Offensive Weapons Act 1990, to include a range of weapons, including stun guns, crossbows and so on. The Deputy's proposal would reinstate the older definition and, thus, exclude weapons that have been included under amending legislation and different statutes over the years.

The consolidation of all the definitions in the Firearms Acts would require substantial amendment to seven Acts between 1925 and 2000 and, therefore, the approach I have taken is to amend existing definitions where they can be readily consolidated. In this regard, having examined the Deputy's amendments carefully and consulted the Parliamentary Counsel, I am satisfied the consolidation of the definition of "ammunition" proposed by the Deputy would not, unlike the "firearms" definition, have implications for other Firearms Acts. While I am opposed to the overall thrust of his amendments because of their implications for the other Firearms Acts, I am prepared to accept his consolidated definition of "ammunition" and I propose to table on Report Stage an amended definition of "ammunition" along the lines of his definition. The problem with his amendment is it is not complete. While I want to accept it, I cannot do so because it still leaves problems. However, his definition is preferable and I intend to table an amendment on Report Stage to take account of the point he has made.

The Deputy has suggested the deletion of the words "word and expression" where they occur in the definitions. I consulted the Parliamentary Counsel on the matter, who advised that the words should not be deleted. It is a question of style, although I have a great deal of sympathy for his point because it is simple repetition. If he pushed me on it, I would take them out.

I would very much like the Minister to introduce a new consolidated firearms Bill, which would update all legislation in this area since 1925 and include the Minister's new proposals, most of which I am in sympathy with, but my concern is that we are completing another addition to a patchwork quilt and we will make it more difficult for anybody who wishes to get up to speed on the Firearms Acts. It is important from the point of view of criminal law that people should know and be able to find out where they stand.

That is even more important in the context of firearms because of the significant number of legally held firearms in the State. It is important that a distinction should be made between law abiding people who are entitled to bear arms to shoot game and so on and criminals. We are mixing and matching the criminal and legal elements. Approximately 170,000 shotguns are legally held, although I am not sure that means 170,000 individuals hold guns, as some individuals may own a number of shotguns. The number of licence holders, therefore, may be much lower.

Other firearms are held legally, for example, for participation in a number of sports such as clay pigeon shooting. When I raised that as my starting point on Second Stage, the Minister's reaction was that there would not be sufficient time to introduce separate legislation. Were such a point made now, it might have some validity but my original remarks were made in February 2005, which is well over a year ago. As we are where we are, my approach now is to introduce amendments to ensure that this part of the Bill is simple, straightforward, clear-cut and understandable. While I have no great difficulty with the Minister's amendment, questions arise on certain specific issues. I am not sure if one is to measure muzzle energy in joules or how one would count the joules at the muzzle of a gun. Those are things we should understand before adding them willy-nilly to our legislation.

My other amendments are stylistic and aimed at ensuring the finished product is as understandable as possible to those who wish to know where they stand under the law. The Minister is virtually inviting me to press him on some of these amendments and I will do so with some diffidence. While I do not have the perfect answer, my view and the views of those who have advised me are reflected in the amendments and I put them forward in the genuine spirit of creating the best possible product.

I preface my remarks by saying that I come late to the minutiae of the debate. While it is not only important for us to amend the law but to do so in a rational manner, we have grafted on all sorts of different component parts to the legislation in an unprecedented way. We all aspire to the creation of consolidated legislation and even the most complicated financial Acts are being consolidated currently. I strongly share the view that the regime governing the legal and illegal holding of firearms must be clarified in one consolidated Act. The Minister will gain significant support for such legislation across all benches and will have a fair wind behind him to get the Bill through the Houses very quickly. While I am not suggesting there will be any obstruction to the measures before us, we must be aware of the need for clarity in the law. I share Deputy Jim O'Keeffe's view and would have preferred a number of separate Bills on judicial reform, criminal reform and firearms rather than the hybrid before us here. However, we have no option but to proceed with the Bill as drafted and, as such, we will deal with the minutiae of the Minister's proposals as they arise. I have no view on the definitions set out and can only assume the Parliamentary Counsel is best placed to advise us.

The Firearms Acts are a mixed set of statutes which set out civil and criminal functions. They deal with whether a youngster can have an air rifle or a farmer a shotgun and provide for the circumstances in which a licence for such weapons may be granted. These are primarily civil matters and they do not give rise to significant criminal issues. The statutes also cover the offence of possession of firearms with intent to endanger life, which is a grave criminal matter. It is peculiar to have such a code and is analogous to circumstances in which the Road Traffic Acts, for example, contained provisions setting out the offence of using a car for an armed robbery. In such circumstances, the statutes would cover everything from insurance to very serious criminal offences. The problem with the Firearms Acts is that they constitute a mixed civil and criminal bag. If I had the opportunity and felt there was sufficient parliamentary time available over the remaining period in office of the current Government to introduce a comprehensive firearms Bill to consolidate firearms law, I would have gone down that road. However, I found I could not.

For reasons that are well known to members, I had to amend the Firearms Acts to help the Garda to carry out its criminal functions. I also found that there was cross-over between civil and criminal matters as firearms were being stolen from people who held them lawfully and used in criminal activity. We face emerging case law problems on the issue of whether it is permissible for a superintendent to refuse to grant a licence on the ground that an applicant does not have adequate firearms lockers or safes at home. Having found that I had to amend the Firearms Acts in the interests of the fight against crime, I found there were other provisions in the existing legislation which were simply unfair. The gun lobby has sought reform of the circumstances in which guns may be held and, as the responsible Minister, I did not want to tell them they had to wait for a further statute for civil reforms due to criminal law priorities. Gun owners would have felt I was putting them at the end of the queue despite their urgent requests for modernisation of the law.

Under the Statute Law (Restatement) Act 2002, all of the Firearms Acts are capable of being restated as a series of Acts in consolidated form. I intend to have the Department prepare a restatement of the Acts to ensure they are easy to follow. The amendments must fit into place to allow a person to pick up the text and easily understand the law.

Is it an organisational or legislative job?

It is a physical job, but once it is done it can be handed to the Attorney General for certification as a restatement. The restatement can be used in court as a consolidation. I would prefer to adopt a consolidation approach and tackle every issue, but I could not tell the Garda that sawn-off shotguns would have to await a further debate on gun safes, muzzle velocity and restricted firearms. The Garda would have told me it could not wait. If I had said to the firearms lobby that it would have to wait because I was dealing with Garda matters only and had no interest in the civil issues, I would have been stuck with the problem of whether or not the adequacy of firearms safes was a civil or criminal law matter. Inelegant as the solution is, I have decided to do as much work as I can in one part of the Bill. The restatement to be published hereafter will address any confusion. It will be to everyone's advantage to be able to identify the law in one set of Acts through what I hope will be a simple text.

The terms set out in the definitions section such as "ammunition", "commission" and "expression", represent one style of drafting. If it pleases people, I am happy to accept their amendments. It makes no difference to the price of eggs if we amend the Bill this way or not, but I am not obstinate and will accept the amendments to make people happy.

I accept the Minister's offer in that regard. The approach suggested to me reads better and brings greater clarity in the way it is set out. In so far as the Minister is able to accept them, I am in agreement.

Amendment agreed to.

My officials have suggested that rather than going through the amendments to the amendment now and making a mess of matters, I should take on board what Deputy Jim O'Keeffe is saying and incorporate it in a consolidated amended section for Report Stage.

That probably makes sense in light of the fact that there is a good deal there to be dealt with. Let us get it right.

I move amendment No. 102:

In page 25, before section 24, but in Part 4, to insert the following new section:

"25.—Section 1 of the Principal Act is amended—

(a) by the insertion of the following definitions in subsection (1):

"the word "ammunition" includes restricted ammunition, unless the context otherwise requires;

the word "Commissioner" means the Commissioner of the Garda Síochána or a member of the Garda Síochána, or members of a particular rank in the Garda Síochána, not below the rank of superintendent appointed in writing by the Commissioner for the purpose of performing any of the Commissioner's functions under this Act;

the word "firearm" includes a restricted firearm, unless otherwise provided or the context otherwise requires;

the expression "firearms training certificate" has the meaning given to it by section 2A of this Act;

the expression "issuing person", in relation to the grant or renewal of a firearm certificate, authorisation or licence, means, as the case may be, the Minister, the Commissioner or the superintendent of the Garda Síochána of the district where an applicant for or holder of the firearm certificate, authorisation or licence is residing;

the word "place" includes premises and a dwelling;

the expression "muzzle energy", in relation to a firearm, means the energy of a projectile discharged by it, measured at its muzzle in joules;

the expression "restricted ammunition" means ammunition which is declared under section 2B(b) of this Act to be restricted ammunition;

the expression "restricted firearm" means a firearm which is declared under section 2B(a) of this Act to be a restricted firearm;

the expression "working mechanism", in relation to a firearm, includes the mechanism for loading, cocking and discharging it and ejecting spent ammunition;",

and

(b) by the substitution of the following definitions for the definitions of “firearm certificate” and “the Minister”:

"the expression "firearm certificate" means a firearm certificate granted under this Act and, unless the context otherwise requires, includes a restricted firearm certificate, a firearms training certificate and a firearm certificate granted under the Firearms (Firearm Certificates for Non-Residents) Act 2000;";

the expression "the Minister" means the Minister for Justice, Equality and Law Reform.".".

Amendments Nos. 1 to 12, inclusive, to amendment No. 102 not moved.

I move amendment No. 13 to amendment No. 102:

In paragraph (a), in the definition of “muzzle energy”, to delete “the expression”.

Will the Minister explain to me, as regards the original definition of "muzzle energy" what we are talking about and how the energy of a projectile is measured in joules?

It sounds like a long debate.

Joules are a metric measure of pressure used in meteorology as well as everywhere else.

Mr. Brendan McWilliams would be up to speed on this.

The imperial measure was foot pounds.

What was that?

It was foot pounds. The Deputy asked for this.

I am getting both barrels at this stage.

I sometimes tell my sons about the tables — and "naggins", pecks, gills etc. — which we had to learn at school and which are gone now.

Naggin is not gone everywhere.

It is called muzzle velocity. A high velocity weapon and a low velocity weapon would be characterised by reference to the velocity of the pressure of the gases behind the projectile as it leaves the end of the barrel.

Amendment to amendment, by leave, withdrawn.
Amendments Nos. 14 to 20, inclusive, to amendment No. 102 not moved.
Amendment agreed to.

This seems like a good time to stop.

That would facilitate me. Not alone have I an appointment in west Cork, but I have some work to do here before I go.

The Deputy appears to be about to exit the committee with the muzzle velocity of a number of joules.

Mr. Joule would be very impressed.

The select committee adjourned at 5.15 p.m. until 9.30 a.m. on Wednesday, 26 April 2006.

Top
Share