Deputy Barnes was in possession when the debate adjourned.
Criminal Law (Rape) (Amendment) Bill, 1988 [ Seanad ]: Second Stage (Resumed).
Question again proposed: "That the Bill be now read a Second Time."
I have completed my contribution.
Earlier we had a debate initiated by the Minister for Social Welfare on behalf of the Minister for Justice and I thought it was noteworthy as I glanced around the Chamber to see that four of the 14 women Deputies in this House were present and very few of the male Deputies were present for that debate. I realise Deputies have plenty to do with their time——
Especially with an election coming up.
Or not coming up. The point I am making is not so much to berate the male Deputies as to point out that this Bill has implications not just for women but for men. This Bill sets about changing the perceptions that have been in existence in relation to rape over a long number of years. The process was initiated in 1981 but it is being continued now, and major changes in approach are incorporated in the Bill. Despite the fact that like Deputy Barnes I would look for even further changes, I think all Deputies in this House have a duty to lead public opinion on this and to inform the public at large of their views. I hope that by the end of the Second Stage debate we will have had a chance to hear a wide variety of views, particularly from a good proportion of male Deputies.
Hear, hear.
This Bill is to be welcomed. A number of groups, including the Oireachtas committee, the Rape Crisis Centre and the Law Reform Commission, have sought changes in legislation on rape. It has taken many years to come about. This I do not understand because there has been a great deal of discussion and work on this subject. Nevertheless, we now have a Bill which makes a good deal of headway in dealing with rape. Once more it is simply catching up on public opinion. Members of this House, far from being the leaders of public opinion, more often than not lag well behind. When they get around to changing legislation, events have often overtaken those changes. This is one of the things we might come up against in relation to this Bill.
I welcome a certain widening of the definition of rape compared to what we have at present. A major flaw is that there has been something of a cop out by substituting the offence of aggravated sexual assault for the widening of the definition of rape. In a very strong report the Law Reform Commission recommended, having looked at a number of jurisdictions and developments in law throughout the world, going as far as New Zealand, Western Australia and Canada, that the definition of rape be widened to include the kinds of offences which are now included under the heading of aggravated sexual assault. They further recommended that the 1981 Act should be amended so that the words "sexual intercourse" should read "sexual connection". Whereas that seems at first glance to be a very major step, a grave change in thinking, it is very logical in terms of the perception of sexual offences today.
That brings me back to my initial comment that this Bill affects men as well as women. It very definitely includes offences against men. There is no doubt that there are offences committed against men from time to time which could be classified as rape in ordinary parlance. It is not for this House to stray from ordinary parlance. It is differentiating between what is the law and what is understood to be right and proper in the outside world.
I would pose a question to the Minister. In bringing in new definitions under this Bill and the new offence of aggravated sexual assault, from what vantage point do we define rape? Deputy Barnes spoke earlier about the very strong property-based approach to rape, the very strong emphasis on the loss or maintenance of one's virginity if one is a female. I would have to contrast that with what I believe to be the proper approach, which is to decide on the definition of rape in terms of its effect on the person — it is a crime of violence against the person, whether male or female. The bulk of thinking on the crime of rape has developed over the past ten or 15 years and it is now very much regarded as a crime of violence which does not involve the loss of virginity per se. To find that a Bill is presented to this House in 1989 based on that differentiation is an indication that it is ill-judged and out of touch with reality.
The Law Reform Commission recommended changing the word "intercourse" to "connection", which would have allowed a wider definition of rape to involve what is included in the aggravated sexual assault offence. There is no doubt that those who have suffered the kinds of assaults we are speaking about, even though they may not be defined statutorily as rape, feel that they have been raped or invaded. It is interesting that in writing my notes for this debate that is the word which came to mind. I note that Deputy Barnes used the same word. The sense of invasion of one's bodily integrity, no matter whether it is committed with a penis or inanimate objects is similarly felt.
One cannot simply disregard the effect of the crime and the sense of being violently abused when drawing up legislation. To differentiate in those terms is to fly in the face of reality. The feeling of degradation which the victim has is as strong in the case of non-penile rape as it is with the understood definition of rape up to now. Those who have worked with victims of this type of violence say that the feeling of degradation is even more present when oral or anal sex is involved. There is a greater sense of disgust.
I cannot understand why the definition recommended by the Law Reform Commission, strongly argued for and researched very widely, has been simply ignored in this legislation. The Minister in his speech did not put forward an acceptable explanation for that. The major reason mentioned was that it would cause difficulties, fly in the face of tradition, somehow be too awkward to handle. If one is introducing reforming legislation one should be open to radical change when necessary. There is no doubt that radical change is necessary in this area.
Research into the crime of rape and other associated crimes in recent years established that the overriding feeling of a victim of this offence is of being powerless, of being a victim. They are subject to the kind of violence that makes them feel they have no power, they cannot change things and their humanity is denied. They have no option, no choice and they are being used as objects. This is true whether we apply the normal definition of rape or non-penile rape. I know that the feelings of these victims are the same.
In other jurisdictions definitions are not confined to whether or not pregnancy follows the rape or assault. It seems to me that the kind of thinking that has gone into the change in perceptions and attitudes over the last ten or 15 years is totally ignored in the definition in this Bill. To concentrate on the old definition of rape is to concentrate on the sexual aspect of the assault and not on the violent aspect, and all thinking and research in regard to these offences in recent years point to the fact that this is a crime of violence. To refer to the sexual aspect of the assault and to maintain that definition in this legislation is to confuse the issue. In 1981 when the previous legislation was brought about there was not perhaps as clear an understanding of that, certainly in Ireland. That understanding has developed over the last eight years. It has developed with the openness that has come about because of the work of the Rape Crisis Centre, because of the opening of debate and discussion and it is a very healthy thing; but why, when this is our one opportunity in eight or nine years to form this legislation, are we not taking into account the reality that this is not a crime of a sexual nature but a crime of violence and maintaining the differentiation between rape and aggravated sexual assault on the basis that it is a sexual crime and not a violent crime?
I would like to ask the Minister why there is such resistance to redefinition. I do not understand why the older style of definition is retained. From what vantage point is the Minister looking at it? In the speech which the Minister delivered earlier he says that the obvious conclusion we must come to is that we should retain the existing definition of rape which has not given rise to any difficulties. That is not the point at issue. The point at issue is that it is not the rape cases which are causing problems but the other cases which are not now defined as rape. It is the other cases which we wish to see defined as rape which have given rise to difficulties and have allowed women, and men too, who were subject to those attacks to feel degraded because it is not admitted officially that they have suffered this attack; they feel as if they had been raped but the State, the court and other institutions do not recognise that. It is those cases which do not neatly fit into the rape definition which have given rise to difficulties, and the Minister studiously ignores that and attempts to say that because rape cases have not given rise to difficulties in terms of definition that everything is hunky-dory.
I would strongly urge the Minister to review his approach to this Bill. He will find that we on this side of the House will be of any assistance we can in helping him to come to a different conclusion. We are going to get one shot at this for the next decade. We will probably not get another chance to change the definitions and review the legislation. If we do not do it now, if we persist in maintaining this old-fashioned attitude, we will soon find ourselves out of touch with reality.
Let me move to the issue of consent. I note that the Bill has failed in its attempt to improve the situation about consent and to ensure that there is no doubt that a lack of struggling or offering resistance does not constitute consent, by not defining consent positively. Again the Law Reform Commission report strongly recommended that there should be a positive definition of consent. They instanced in their draft of a Bill that they were to put before the Attorney General a particular part of the code in another country in which it was quite clear that consent meant a consent freely and voluntarily given and without in any way affecting or limiting the meaning otherwise attributable to those words; a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deception or fraudulent means. Further, they say it should include that a failure to offer physical resistance to sexual assault does not of itself constitute consent to sexual assault. In drafting this Bill the Minister has sought only to include the second part of that, which is a negative approach to the problem, and there is no doubt that it would serve the purpose of prosecuting these cases in a clearer manner if the first part, that is, the actual definition of consent, were to be included. I do not understand why it has not been. Perhaps the Minister has a good reason. Perhaps in his reply he will indicate that there are major pitfalls and that therefore it cannot be included; but I think the defining of consent involving the reference to force, threat, intimidation, deception or fraudulent means is a worthwhile addition to the Bill and should be included. The Bill as it stands falls very far short of the recommendations of the Law Reform Commission. I believe including this definition would not cause a problem but would improve the prosecution of these cases and also inform prospective complainants of exactly what is intended by the Legislature when they define consent. All around, it is something that should be included.
I welcome provisions removing any misunderstandings in our present law relating to rape within marriage. It would be incomprehensible to insist that a wife in a difficult marriage situation must be subject to her husband in matters of sexual intercourse. I cannot see how one can defend the situation where a wife can prosecute somebody whom she knows, not necessarily a stranger, who rapes her but cannot prosecute her husband. To go back to the definition which I was talking about earlier, if it is a crime of violence and it is committed by her husband, it is still a crime of violence, something on which she should have redress. I welcome the provision in the Bill in that connection but I do have a query: there is no provision in the Law Reform Commission Report relating to the requirement for the Director of Public Prosecutions to initiate prosecutions under this section. If they saw no particular reason to insert it, I am puzzled as to why it is there. The Minister has not explained it. I could understand it if the Bill had required all prosecutions for these offences to be initiated by the Director of Public Prosecutions; but why should the prosecution of an offence that might be committed within marriage be alone singled out to be initiated by the Director of Public Prosecutions? That needs to be answered.
Another aspect of that requirement is that when the Director of Public Prosecutions is approached to initiate a prosecution by a wife against a husband how is he to decide whether to follow it up? On what is the Director of Public Prosecutions to base his decision? There is no guidance for him in this Bill and there is no precedent in this Bill or in any similar legislation. I have no violent objection to the Director of Public Prosecutions being involved in these cases but I cannot differentiate between the situation in a marriage and that outside of a marriage. I seek the Minister's explanation on that.
The provision that the judge may warn the jury of the danger of convicting an accused without corroboration is important. In these cases there is a difficulty in that very often it is one person's word against another and contrary to the perception of the general public, most rapes occur between people who know each other. I noticed in the consultation paper of the Law Reform Commission that they fell into the trap of differentiating or contrasting rape within marriage and the rape of a woman by a total stranger. In reality very few rapes are committed by total strangers. Rapes are often committed in the privacy of home or in private surroundings so that it is one person's word against another together with the other evidence adduced. It should be open to the judge not to have to warn a jury of this danger about lack of corroboration. A judge should be able to use his discretion as to the weight of the evidence and so on. However, this is something that is a very useful addition in legislation on these matters.
A major difficulty for those who were dealing with victims of sexual assault in the past relates to where the complainants previous sexual experience was introduced in evidence. Like Deputy Barnes, I welcome the new provision that an application must be made at the beginning of the trial in order to adduce this evidence later. I hope that in allowing for that evidence to be brought forward the courts will not find it necessary to grant this permission on a regular basis because to do so would devalue the intention of the section which is to bring to an absolute minimum the necessity to examine the complainant's previous sexual history. The past sexual history of a complainant with anybody other than the defendant should almost never be involved in the case. In some cases her history with the defendant may need to be looked at but the courts should not allow this in most cases as it would defeat the purpose of the section. There is no doubt that many defence lawyers have set out to blacken the character of the victim so that in the end the balance of the burden of proof was left within the victim and not with the defendant. By innuendo and snide remarks some defence lawyers make it their business to go after a victim in this way. This practice has not been as prevalent in the last year or 18 months as it was before because there has been a lot of controversy about it. Obviously the spirit of the Bill should be maintained, even if this is allowed under the Bill.
The Bill in its references to bringing all rape and associated cases to the Central Criminal Court sets out to give a certain status to these crimes. Since 1981 all criminal cases have been tried in the Circuit Court, except for murder and attempted murder. This is not a good enough reason in general to put witnesses, the police, the accused, friends and relatives, court officials and everybody else involved to the trouble of coming to Dublin for every rape case. There are plusses and minuses in this policy. Among the plusses would be that judges in these cases would work up a great deal of experience in dealing with them. On the minus side, there probably would be delays. After all, the 1981 Courts Act in its provisions intended to reduce delays that had built up in the system. It would be unfortunate if by providing for the centralisation of all rape and associated cases, we were to go back to the bad old days. There is no doubt that the sooner a case is heard the better from the point of view of all concerned.
The Minister referred to the number of cases last year and said that that was the general run of things. That is not the case. There has been an increase in the number of cases over the past few years and there will be an even greater increase in the number of cases when this Bill is passed. Only the tip of the iceberg is being dealt with at the moment. Anybody who works with the rape crisis centres or in any of the helping agencies will confirm that the number of cases that come to the courts is minimal compared with the number of cases investigated by counsellors and which even get to the stage of being reported to the Garda but do not get past that for all sorts of reasons. Hopefully this Bill will help in that area.
There will be a growth in the number of cases coming to the courts. I am under no misapprehension about that and neither should the House be. That will put an extra strain on the Central Criminal Court, not to mention the cost, the inconvenience and strain that would be put on everybody who must come to Dublin and put themselves up in hotels or whatever away from their normal surroundings. There is also the fact that those who are legally involved, solicitors, barristers and so on, all have to come from their normal working areas so that a sort of caravan effect will be created. I wonder if it warrants that. I am not certain that it does. This aspect should be looked at again. I know the Minister is aware of some apprehensions that have been voiced by people working in this area. Perhaps he should consider those again. If we want to give the impression that we regard rape seriously, the least we can do is define "rape" properly. If the Government, in having all cases brought before the Central Criminal Court, are simply engaging in a cosmetic exercise of redefining rape as a serious offence they can do this by defining it properly having regard to some of the defects in the Bill. As defined up to now it is not, in the legal sense, a serious offence.
The question of separate representation for a victim has arisen in recent years and is tied up with the other matter I referred to, evidence being adduced on the previous sexual experience of the complainant. In recent years those who work with the victims of sexual assault and rape find that, because of the conduct of these cases, very often the role of the prosecution becomes blurred and that the objective of the prosecution, which naturally must be to obtain a conviction, gets mixed up with the objective of the complainant which is to survive intact and to come out at the other end of the trial with some shred of her character and self-esteem left and not to be psychologically damaged. That is the impression, too, that the victims themselves have been getting. Because of this a request has been made that there be separate representation for the victim, the complainant.
There are those who believe that this is unnecessary. The Minister has said that in some way this may work against the interests of the complainant, but I do not see how this could happen. It is useful to have separate representation or guidance of a legal nature for a victim. I am talking of someone who would maintain a watching brief. I am not thinking in terms of someone constantly interrupting in court but of someone whose role would be to ensure that the victim is properly advised and properly prepared before the court hearing and that her rights are protected during the hearing. Perhaps this would not be necessary during the trial but it would vindicate the rights of the complainant. An appreciation of the plight of the victim has almost disappeared from our society. There is a growing belief that the defendant must have every right under the sun. Do not get me wrong, the defendant must have his rights vindicated but on the part of the State the complainant is the victim of a crime and is entitled to be properly protected, not only of the courts but of the prosecution process.
I am aware that there have been changes in the attitudes of the Bar Council in recent times in relation to communications between the barrister involved in the prosecution of a rape case and the victim. Prior to this the barrister was prohibited from speaking to the victim before the case. The Bar Council now advise, and this is a real change in their rules, that prosecution barristers should consult with the victim prior to the hearing to explain the procedures and to outline what may be expected to happen in court. I do not think it is spelt out sufficiently enough either in the Bill or in the rules of practice that the role of the prosecution is not alone to obtain a conviction but also to maintain the dignity and character of the complainant. This is not spelt out in the Bill and the Bar Council have only an informal rule in regard to it but it is necessary to incorporate in the Bill some recognition of the different role that has evolved as between the prosecution and the victim.
Is the role of the State in prosecuting rape cases or other such crimes to achieve convictions no matter what? I do not believe that is the case because if it is we are abandoning the victims, those whom the State is supposed to be representing. The State not only represents the public at large, it represents the individual on whose behalf it is supposed to be acting. Because of the feeling of unease about the plight of the victim I ask the Minister to reconsider his attitude to this matter. There should be some middle ground. The conduct of cases could be held up if there was to be present in court a counsel actively participating on the part of the victim. That is not what I am looking for. I am thinking of someone who would have the role of protecting the rights of the victim. This should be considered seriously.
I welcome the provision which would exempt males under the age of 14 from prosecution and I take the point made by Deputy Barnes earlier on about raising the age of criminal responsibility from seven to 14 years but I see this matter in different terms. We should not raise the age of criminal responsibility without also overhauling the juvenile criminal justice system. One needs to approach the juvenile criminal justice system in a way different from the adult criminal justice system. The effect of punishment in terms either of a deterrent or of rehabilitation is almost nil as the Whitaker report on the prison system brought out very clearly. There is simply no point in punishing young people in the hope that they will not go on to become adult criminals. When we come to raising the age of criminal responsibility to 14 we will also have to have regard to sexual crimes. Young boys or men should be prosecuted but what happens next is most important.
I have reservations about the hearing of cases in private. I believe that the name and address of a complainant should not be mentioned. Neither should there be any mention of the defendant's name until a conviction has been achieved. There are two aspects to this issue. First, there is the effect which the reporting of the salacious pieces of information has, and, secondly, there is a need to have proper reporting of the decisions in these cases so that the public would know what has been decided, that they would know if a person had not been convicted despite the evidence or if a person had not received the sentence that is warranted in the particular case.
During the past year or two there has been a spate of reports in the newspapers of horrific crimes. I particularly say the newspapers because television and radio do not seem to go in for the same kind of reporting. At times they have gone to town on it and it is difficult to know whether the degrading aspects of cases should be reported in such detail because such reporting dulls the edge of our consciousness regarding appalling acts of violence. We all know the arguments about violent acts on television and that seeing them so often dulls the edge of our appreciation of how violence affects us.
I query whether detailed reporting of the evidence given in such cases is necessary or advisable. On the other hand, we have to weigh the fact that the public have a right to feel outraged if some people act in such appallingly violent ways. There has to be a happy medium and I do not know if the Bill can accommodate this. It probably cannot but it is worth commenting on the fact that the multiple cases recently and the degree to which they have been reported is a double-edged sword. Public visibility of justice being seen to be done is extremely important. We must know that cases coming through the court system are being properly treated, that the evidence presented is treated in a proper way and that convictions and sentences are proper. Therefore, there must be access to these cases without identifying those involved in the media.
I should like to refer to mandatory prison sentences, which are not mentioned in the Bill. In cases of rape and aggravated sexual assault mandatory prison sentences should be the norm. Anybody who has worked with offenders in these cases will know that they are — almost without exception — anti-social in nature and do not have a developed sense of responsibility towards their fellow human beings. Rape is akin to murder, the sense of violation of the person is as close as one can get to the crime of murder and there should be compulsory imprisonment. I would not stop there because imprisonment will not rehabilitate these offenders. In cases of this kind it is absolutely essential that every effort is made to rehabilitate the offenders. I know there is a pilot programme in Arbour Hill at present operated by the probation welfare service and that there are a number of other programmes being run in England and — I think — in Belfast. They are somewhat experimental but a lot of work has been done and it is well worth continuing.
The other aspect is that when a sentence has been served and an offender is released to the outside world, there should also be supervision. Too often in these cases the offenders are released to the same community in which they existed before and they go back to their same habits, particularly in the case of child sex offenders. The same routine starts all over again and there is no contact with anybody. They do not have to report back to anyone and they are not on a continuing programme; it is as if we assume that what has driven them to rape or to sexually assault has been exorcised by simply being in prison. We know that that has not been the case and that there are habitual offenders. What are we doing about it? If we are serious about protecting society we must go further than simply locking them up for five or ten years and letting them out to do the same thing.
This Bill offers us an opportunity to do something about it but we are not taking it. It will be at least a decade before we get another chance to do it although it is essential. Why are we not taking into account the kind of information available to us here and now?
I welcome the Bill which has been long awaited. We obviously agree that it is needed and I look forward to Committee Stage because I hope the Minister will take on board some of the suggestions which Deputy Barnes and I made, and which others will make. There are flaws in the Bill but this is the one opportunity we will get for many years to do something about a subject which has been written about and discussed. A comprehensive discussion paper was issued by the Law Reform Commission followed by a full report which was measured and very well researched. I should also mention the work done by the Oireachtas Joint Committee. I urge the Minister to take all this into account and to come to Committee Stage with an open mind. I hope he will do so.
I welcome this Bill as is the case with any law reforming measure brought before the House. Unfortunately, there are all too few law reforming measures brought before this House, which is a great shame. We have an excellent Law Reform Commission which do a great deal of work and research and produce many reports. However, very few of them reach this House for examination. This is one of them, which is to be welcomed.
This Parliament has fallen very substantially behind in tackling the very many law reforming measures necessary. I know there are great pressures on parliamentary time and that many important measures dealing with the economy, employment and so on have to be dealt with in the House. That is understood and perfectly acceptable. However, the House should sit an additional day or days per week to deal with law reforming measures. I suggest that it should sit on a regular basis every Friday to deal with non-contentious law reforming matters which could be examined in detail and which would result in very worthwhile and much needed reform being brought into our legal system. The days of a three day sitting week should be finished as it is in most other democratic parliaments. If Fridays were allocated for that purpose it would be a major step forward.
Indeed.
I do not intend to go through this Bill section by section or examine every aspect, but I want to make a few comments in connection with it. I agree with the directive given by the Supreme Court in a decision on a rape case given on 13 May 1988. They laid down the general principle that, except in very exceptional cases, the penalty for rape should be an immediate and considerable custodial sentence. That is a correct definition of what the punishment should be in cases of rape or — as it will also now be — aggravated sexual assault. I do not agree with Deputy Colley that a mandatory sentence should be prescribed. The directive of the Supreme Court that except in very exceptional circumstances the penalty should be an immediate and considerable custodial sentence meets the case. Any prison sentence for an offence of this type should be significant and the primary purpose of it should be to protect society from such people. The issue of community safety must be the primary consideration. We must protect people from assault, rape and so on by those who need treatment.
I should now like to deal with my second point, which was touched on by Deputy Colley. Treatment is essential for those people. I find it highly regrettable that that aspect has not been dealt with in the Bill. I see no ultimate advantage in the medium or long-term in taking people who are sick — it is my belief that those who commit such offences have serious psychological problems — and locking them up in prisons for whatever period, five, ten, or 15 years and releasing them afterwards untreated. When they are released their condition is the same as it was when they were sent to prison and, in some cases, worse. It is unacceptable that such people should be released into the community.
My information is that a pilot scheme was in operation in Arbour Hill but that it has been wound down through lack of resources from the Department of Justice. We do not want a pilot scheme but an indepth plan for treating such people. We are lucky that we have a group of highly qualified people who are capable of managing a rehabilitation and treatment programme for sex offenders. Those people are dedicated to that task. I have met many of them. I am, of course, referring to members of the Probation and Welfare Officers' Association who have prepared an excellent report on this issue. I should like to bring the Minister's attention to the final paragraph of the report which, regrettably, the Minister ignored when preparing the Bill. That report stated:
We would request the Minister for Justice, and the Government, to positively consider our proposals when drawing up the new legislation on rape and allied offences. Any legislation which does not include provision for a treatment programme will be deficient in terms of the offender, the victims and, ultimately, society itself. Other countries are already moving ahead in establishing and extending their treatment programmes. It is now opportune for Irish society to further develop the work in this area.
I do not know how anybody could disagree with that statement but there has not been any reference to it in the Minister's speech. The Bill does not contain a provision that will tell us that the parameters for sexual offences will be widened and, at the same time, that it is being recognised that it is an essential element for the protection of society that those who are convicted of sexual offences will be treated while in prison so that when they are let loose on society people will no longer be at risk.
The Minister should give a guarantee to the House that the resources required by the probation and welfare officer service for this purpose will be given to them. He should give us a guarantee that the accommodation, equipment and resources they need will be provided. There should not be a cutback in the allocation for that service, as has occurred. There has been a good deal of discussion whether it would have been better to deal with the various offences by an extension of the definition of rape or whether it is a good thing to introduce the new definitions and new offences of sexual assault or aggravated sexual assault. I do not think it makes a great deal of difference provided that the person who has committed an offence along the lines indicated does not escape on technical grounds. That should be the essential objective. The retention of the original definition of rape, coupled with the new offences of sexual assault and aggravated sexual assault, will meet the needs of the case. If the evidence is forthcoming in regard to such offences society's needs in the matter will be met.
It will not meet the needs of women.
It may be that some circumstances have not been covered but I cannot think of what they are. Looking at the definitions it appears to me that virtually all circumstances are covered by section 3. If there are others that Deputy Barnes can think of I have no doubt she will include them in amendments for Committee Stage. If they have merit I can assure her of my support, and that of my party. I look forward with interest to reading her amendments. I take the view that offences that interfere with women in any way from the sexual or physical point of view should be treated as serious offences and those found guilty should be punished accordingly. The Bill appears to do that but I may have missed something. If I have we can deal with it on Committee Stage. Any amendments tabled by Deputy Barnes, if I consider them to be reasonably necessary, will receive my support.
I welcome the Deputy's statement.
There is another aspect to this. It is very easy to get caught up and swept away along a line of emotion in regard to such cases. Many people come to the conclusion that the person they see in the dock, man or woman, is guilty of the offence with which they are charged, but that is not always so. In many cases the person in the dock is guilty but the offence must be proved against him or her. One should take great care that one does not swing too far with the pendulum in one direction thereby causing a difficulty in the other direction as far as the person in the dock is concerned. There is a famous true story told in legal circles of the juryman who when passing the prisoner in the dock was heard to murmur to the person charged, "I suppose you would not be there if you had not done something wrong". Needless to say that juryman was immediately discharged for having made such a remark.
There have been instances, in the realm of sexual and other offences, of people being wrongly charged due to mistaken identity. There have been cases where people instituted prosecutions maliciously and were prepared to perjure themselves for the purpose of securing their ends. That happened in murder cases. I can recall the Christie case where the unfortunate Mr. Evans was hanged following conviction based on perjured evidence. It is one of the weaknesses of the legal system — I suppose there is not much one can do about this, but it is a weakness nonetheless — that the law relies on the truthfulness of the evidence which is given in the courts. Judges and jury men and women are human beings and they have no prophetic insight into when the truth is being told and when it is not. The courts can only rely on evidence given and they do their best to ensure that that evidence is the truth and is given as the truth.
One has to have great care that the truth is achieved, and that is the object of the prosecution. Even Deputy Colley who is a trained lawyer was, I think, unwittingly perhaps to some extent caught up in the mainstream of the object of the prosecution. The object of the prosecution certainly is not and should not be — and I do not believe it is or that prosecutors will lay any claim to saying this — to secure convictions. Their objective is and should be to get the truth out.
In reality.
If the truth is that a person is guilty of the offence with which he is charged then a conviction and punishment naturally follows.
If court procedure allows it to.
The court procedure must, subject to the necessary precautions, allow all the evidence to be given and give the opportunity to the judge and the jury to make a proper assessment.
When you are dealing with a case, as many sexual offence cases are, of simply one person's word against another's it does present any judge or jury with great difficulties in deciding which person is telling the truth. I know that Deputy Barnes is very anxious on the subject matter of this Bill, and she has my full support on that, but I am sure that Deputy Barnes being the liberal person she is would not wish to see any innocent person convicted.
If Deputy Taylor had been here for my speech, he would be assured of that.
I am well assured of it. Knowing the Deputy I would know that even without having heard her speech. It is a fact that there can be malicious people who are articulate, put across false evidence and can be very convincing, whereas a very honest person may give a shifty appearance, perhaps unwittingly, and find himself in difficulty in a court when there is no outside evidence to back up one side or the other. Therefore, great care and caution is required.
It is a pity that we do not direct ourselves more in the Bill to the matters of evidence and the greater use of technical aids to evidence. The question of DNA fingerprinting and so on comes to mind, and we should ensure in every possible way that every scrap of evidence that can be got through scientific means is made available to the court to avoid the very difficult situation a judge or jury would be placed in in having to make a horrendous decision on whether they will believe the complainant or the defendant when there is a simple yes or no answer and there is absolutely no additional outside evidence to guide them. The implications of getting that decision wrong one way or the other are horrific. It would be horrendous in the case of a complainant who has been raped, seriously sexually assaulted, sexually assaulted or assaulted if the defendant who, in fact, did it, escaped as a result of a jury not being able to make up their minds and convince themselves of his guilt. That is a horrific prospect to contemplate but it is an equally horrific prospect to contemplate that a person who is innocent would be convicted of a charge like rape or a serious sexual assault when he is innocent. There is no perfection in this and there is no scientific reality about it. One is dealing with people all the time and all the frailties of people.
I can understand, therefore, how the rule about caution against convicting on the uncorroborated evidence of the complainant alone in these cases grew up in the law over many centuries, and we should have great care before we dispense with it altogether. Even as the law stands at present, unamended, a jury are perfectly entitled, as I understand it, to convict on the completely uncorroborated evidence of the complainant alone even if there is no other evidence but that person's word. The requirement is that the judge should draw attention to the fact that great care is required before that would be done. I am not convinced that it is a good idea to dispense with the necessity of any kind of caution whatsoever.
Maybe the nature of the caution which has been required up to now has been too strong but perhaps it would be appropriate for the judge to have to review the evidence and if there is absolutely no corroboration at all — if there is any corroboration, of course, that would not arise no matter how flimsy it was — and it was simply one person's word against another's certainly it must and should be open to the court to convict that person if they believe the complainant and they are satisfied, having seen the complainant, that she is telling the truth. However, a note of caution might not be inappropriate if there is not a shred of any other evidence there. Because of the very serious nature of the offences we are talking about and because the implications are so serious, that degree of extra care must be required.
I want to deal with the jurisdiction of the trial court for these offences. There is a provision in the Bill, and previous speakers have referred to it, under which all these offences are to be directed to the Central Criminal Court in Dublin to be tried by a High Court judge rather than a Circuit Court judge. I have thought about this long and hard but for the life of me I can see no basis for it whatsoever. I thoroughly disagree with the suggestion that all these cases must, of necessity, be brought up to Dublin to be tried in the Central Criminal Court. I will need a good deal more convincing than has been adduced so far before I will accept that proposal. I see no need for it whatsoever. Are we saying that the Circuit Court judges are not fit and proper people to try cases of serious crime? Quite frankly I believe it is an insult to the Circuit Court judges, and it is an insult which is entirely unwarranted. From time to time we criticise in our minds and openly a judgment or sentence that was or was not given in a particular case in the Circuit Court but I can think of a few similar situations which arose in cases in the High Court where there was some criticism of High Court judges, and people attempted to speak in this House about cases where High Court judges were concerned.
Debate adjourned.