As this is the first formal Bill introduced to the House by the Minister since his appointment as Minister for Justice, I congratulate him formally on that appointment. I am pleased we are taking this Bill because it is a very important measure. Some aspects of it derive from the Law Reform Commission Report of 1985, as well as the Law Reform Commission's most recent report on sexual abuse.
I want to deal first with aspects relating to the Bill which have been in the forefront of public comment in recent days and the politics of illusion or the Alice-in-Wonderland approach which appears to be adopted to legislation. One of the major issues in this legislation is the whole area of sexual abuse, in particular child sexual abuse. There is widespread concern about the instances of child sexual abuse which are taking place. Statistics during the eighties seem to show an ever-growing increase in the problem. That problem must be addressed not only in relation to the laws of evidence but in relation to the totality of our laws.
It appeared that this House was coming to terms with some of the needs in these areas in legislation which was passed but which has not been implemented. The Child Care Act, 1991, which was passed in June of that year, imposes new obligations on health boards and seeks to provide protection for children at risk, particularly children who are victims of sexual abuse. It is deplorable that this legislation, passed over eight months ago, is not yet operational. It will not become operational in this and in other areas until ministerial orders are made to bring it into force. This is not the fault of the Minister for Justice; this legislation falls within the area of responsibility of the Minister for Health. It is, however, the fault of the Government who are collectively responsible for the failures in this area.
It is not only misleading to the general public but is becoming exceedingly dangerous because people start believing that legislation enacted in this House is actually in force. It is dangerous that we pass legislation in this House which does not come into force by a specific date stated in the legislation as enacted. Too many important Bills come before this House with provisions contained in them to the effect that they will not become operative until a ministerial order is made bringing either the entirety of an Act into force or specific sections or parts of it.
This House is passing legislation which does not become operational and does not provide additional protections which the Government press office in their wisdom seek to pretend are coming into operation. It means that this House loses control of the legislative process.
This House has lost control of the Child Care Act, 1991. We cannot bring it into force and we are dependent on this Government deciding that the time has come to make the orders necessary to extend to children the protection to which they are entitled. In providing children with protection against sexual abuse we are still operating under legislation passed in 1908. I say that with some anger as a Deputy who laboured for many months with other Deputies present today on the Committee Stage of the Child Care Bill. We went through that legislation with a fine tooth comb and many substantial amendments were made to it. It came out of the legislative process a far better Act than when first published. That was because we had a constructive approach to that Bill such as the Minister appears intent on providing with regard to this Bill. We should not be party to legislation that does not have immediate effect or at least what I would describe as a "sell by" date built into it. It may be necessary to put new administrative procedures in place before legislation passed by this House can become operational. If that is the position, the legislation should expressly state that within three, six or nine months it will come into force.
In the area of child sexual abuse we have the Criminal Justice (Forensic Evidence) Act, 1990, which was passed in December 1990. On last Thursday's RTE news bulletin we had a wonderfully glossy presentation of the benefits that will derive from this legislation which seeks to provide for genetic fingerprinting when it becomes operational. This presentation, no doubt inspired by the Department of Justice, can best be described — although I know the Department were not involved in making the film — as a Department of Justice sponsored documentary in praise of Government which one would have expected to come from one of the east European States before the recent political upheavals; in fact, it was worthy of the Communist Governments of Soviet Russia. It extolled the benefits of genetic fingerprinting as if we had never heard of it before, as if we had not debated the issue in the House almost a year and a half ago, and enacted legislation to provide for it.
We were told, with much excitement by the commentary which went with this glossy newsreel that genetic fingerprinting would be available soon to assist the Garda. This was supposed to be a cause of excitement. Far be it for me to suggest that this glossy newsreel was stimulated by the Department of Justice due to the embarrassment felt by the uncertainty in the Garda Síochána as to whether DNA fingerprinting could be undertaken in the case of the 14½ year old girl who was an alleged rape victim and whose court proceedings were determined in the Supreme Court last week. The Garda were reported as saying that yes, a DNA sample can be taken to determine the perpetrator of the alleged rape and no, it can not be taken. There was much learned legal comment which had an equal diversity of views.
No doubt this glossy documentary was designed to say that the Department, the Minister and the Government were on the ball. The only ball they were kicking was the ball of political hype. The news reporter who was responsible for the report — a gentleman for whom I have a great deal of respect — seemed to run away with his sense of enthusiasm. He seemed to think that telling the nation this would become operational soon was a cause of great interest. The Taoiseach, two weeks earlier, when asked in this House if that legislation would become operative, first, said he did not know and then that it would become operative soon. I think what came out of that newsreel was that this legislation might come into force towards the end of this year — approximately two years after the legislation was passed by this House.
If we are serious about dealing with child sexual abuse, let us bring, first, the Child Care Act into operation and, second, the Criminal Justice (Forensic Evidence) Act into operation immediately. There is absolutely no reason the Act passed over 14 months ago, should be lying dormant, gathering dust on the shelves of the Department of Justice, while somebody gets their act together to bring before this House the regulations necessary to make it operational. It should not take that long to bring those regulations before the House. That Act is a victim of the "sell by" approach I am talking about in the child care legislation; none of it comes into force until the Minister makes the order. This House has lost control over the Child Care Act and the Criminal Justice (Forensic Evidence) Act.
In the context of this Bill, my concern is that Part III of this Bill — which I will be addressing in some detail — has inbuilt the same difficulty. In recent days the Minister has gone to press in relation to this legislation, which was published on 31 January. Apparently the news media only discovered it around last Wednesday or Thursday, and the Minister is getting substantial praise for the publication of this legislation which, I think I am right in saying, was published by his predecessor; so they both deserve praise for it.
Part III is of substantial importance in changing the law with regard to giving evidence in cases of alleged sexual offences, be they in relation to children or otherwise. In so far as Part III is being lauded as a major reform, I would put a large warning beside it because section 1 (3) states that Part III will only come into operation on such day or days as may be fixed by the Minister. The first question I put to the Minister is — I hope he will respond at the close of the Second Stage debate — when will Part III come into force? Is it intended to be brought into force in six weeks, two months, six months or whatever? Will it be in force by this time next year? The hype given to the Bill in the national media over the last few days seems to lead everyone to believe that within a couple of weeks this Bill will be enacted and will come into operation. That is clearly not the case with regard to Part III.
In his speech the Minister said:
... arrangements are being made to have the necessary technical facilities installed in the Four Courts this year to enable evidence to be given by live television link.
On the genetic finerprinting Bill I recall the Minister's predecessor telling us that the gardaí would have the necessary forensic facilities made available to them domestically within a matter of months of the Bill being passed. Last week in the glossy newsreel we discover that the Garda are just learning about it and are about to set up the forensic laboratory, which may be functioning by the end of the year. I hope the Minister's aspiration to provide for the television link facility in the Four Courts by the end of the year can be met. I am putting him on notice that I will be tabling an amendment to this Bill to require that Part III of the Bill come into force within a specific stated time of the passage of this Bill through both Houses of the Oireachtas rather than waiting for ministerial orders to be made. I do not have confidence that those ministerial orders will be made this year, and I am not totally convinced they will be made next year. I do not know whether the diffficulty arises due to the bureaucracy in the Department of Justice, the lack of funds or difficulties in the Attorney General's Office. I would not go so far as to suggest a lack of political commitment. I am prepared to accept that the Minister would wish this Bill to become operative otherwise he would not bring the legislation before the House. There would be no point doing it unless, of course, we were merely making public play about concerns of a serious issue while knowing that the reality was that we are somewhat spancelled for financial or other reasons from implementing measures which everyone regards as desirable.
I hope we are dealing with Part III of the Bill in a serious way and that we are talking about legislation that will become operative within a relatively short period following its passage through this House. I would be prepared to accept that it may take two or three months to set up the facilities necessary, but if we are to have these facilities, I suggest the Department get on with the work. The provision of these facilities does not require the passage of this Bill. The final report of the Law Reform Commission in this area was published in 1990 and there was nothing to prevent the Department of Justice during 1991 or even at this stage setting up these facilities.
I am somewhat concerned about the suggestion that the facilities will be in the Four Courts. Surely the intent of Part III of this Bill is to take some of the fear out of this type of court proceedings in the context of the child who is the alleged victim of a sexual assault. My understanding is that the intention is to make the panoply of the legal justice system appear more humane and less intimidating to a child who has to give evidence about matters that are deeply distressing.
It is my understanding that the intention, as detailed by the Law Reform Commission and, in fairness, in the Bill, is to allow a child to feel at ease, in so far as this is ever possible, in providing background factual information as to incidents in which the child has been involved and to enable the child to truthfully but simply explain events that have taken place. If that is the case, it would be my suggestion, if we are talking about cases involving allegations of child sexual abuse, that these cases should not be heard in the Four Courts or in the Central Criminal Court. We have already recognised the need in the family law area to deformalise court buildings and structures to some extent. In Dublin, both the High Court and the Circuit Court can hear family law cases involving distressing family matters, marriage breakdown and disputes over custody of children in a less formal atmosphere in Áras Uí Dhálaigh away from the hurly-burly of the Four Courts and gardaí who bustle into criminal trials with people handcuffed to their wrists.
It is my suggestion, if we are to recognise the need to deformalise these court structures, taking nothing away from the criminal justice system and the need to get at the truth, that there is no particular reason court cases involving criminal allegations of child sexual abuse should not be heard outside the precincts of the ordinary court system and dealt with in the less formal atmosphere of the family court system. Indeed, if we are talking about a child giving evidence through a television link in a criminal trial in the Four Courts or the Central Criminal Court it would be my suggestion that the television link should not be in that building. There is no reason the television link could not, for example, be in Arás Uí Dhalaigh, if we are talking about Dublin, or somewhere else. I also suggest there is no reason we should bring the child into the Four Courts building. Indeed, children should be kept out of that building. This can only add to the upset and the distress.
I make the same point in relation to the south and west of the country. I do not know what courthouses the Minister is thinking of designating for the court link — he might reveal this to us — but while some of our courthouses are in fairly good repair, others are in a dreadful condition and lack basic facilities and consultation rooms. Again, I suggest if we are to have criminal trials of this nature in the Circuit Criminal Court and in other courts outside the Dublin area, it would defeat the purpose of the television link if we were to require a child to go into the court building and simply sit in another room. These television links should be provided outside the basic court structure.
In relation to the Bill there are two matters which need to be dealt with. In the context of Part III it is important we take out of the court proceedings the feeling of intimidation a young person or child may suffer. I would equally argue in regard to cases of sexual abuse or rape, if it is appreciated that someone under 17 years of age should be given special facilities in giving evidence through a television link, that consideration should be given to providing a television link where it is alleged that sexual offences, such as rape, were committed against someone over 17 years of age. A woman over 17 years of age who has been raped will find it an appalling event to have to walk into a courtroom and give evidence while being watched by the person she has alleged raped her. If it is justifiable to provide a television link for a 16 year-old why is it not justifiable to give this facility to an 18 year old? We need to seriously consider that matter.
Apart from the question of creating a less intimidating atmosphere in giving evidence we have to maintain a balance and make sure that in prosecuting such cases we do not in our enthusiasm to provide the necessary protection for children, women and girls create a situation where the presumption of innocence is reversed to a presumption of guilt. We have to ensure we do not within our criminal justice system create a situation where as soon as anyone makes an allegation of sexual abuse or rape it is instantly assumed, and the law acts on the assumption, that the person who it has been alleged has offended has actually offended. I have no doubt that cases have arisen from time to time where false allegations were made. I have come across this in the family law area where a bitter dispute between a husband and wife over the custody of a child did lead on occasion to a parent making very serious but false allegations of sexual abuse against the other parent. This was done for the simple purpose of destroying that parent's reputation with a child or children and to stop that parent being granted visitation or access rights to a child when the other parent has custody. There have been such instances and, indeed, there are court judgments on them.
There have also been instances where when health boards sought to take children into care allegations of sexual abuse were made which were subsequently established to be incorrect when the matter was determined within our courts system. Therefore, we must be careful when providing protection for children and women who have been raped or sexually abused that we also preserve a balance and not tip it over to such an extent that we have serious miscarriages of justice which result in people being sentenced to terms of imprisonment for acts they have not committed. All the remarks I will make on this Bill will be based on the two premises, the need to provide protection for children while preserving a balance and not turning our criminal justice system on its head and creating a presumption of guilt whenever an allegation is made.
In relation to the need to create a less intimidating atmosphere in court proceedings, I wish to refer to the Law Reform Commission's final report of 1990 on child sexual abuse. Their suggestion in relation to the facilities which should be provided for a child is somewhat different to the suggestion made by the Minister, that we simply have a televised link in the Four Courts. I presume that envisages a child sitting in one room in the Four Courts and the trial proceeding in another room. There would, however, be the inevitable danger that if the child leaves the room at the wrong time he or she might bump into the person who has been accused of a criminal sexual offence. The Law Reform Commission in their report, quote with some approval an extract from a report of the Scottish Law Commission which refers to the use of the television. They stated:
From the technical point of view the important features of the systems which we have seen are, first, that they are entirely automatic and do not require the attendance of camera operators and technicians, and second, that they provide both the judge and counsel with an opportunity to watch not only the child but also others as well. So far as the child is concerned, he or she is placed in a room near to the court room. That room is carpeted and simply but agreeably decorated and finished. The child sits at a table, accompanied by a parent or other supporting adult, and facing the child is what appears to be an ordinary domestic television set. In fact the set will have either a concealed camera built into it, or a small camera clipped on top of it.
It is my suggestion that the pleasantly carpeted room should not be next door to the courtroom where the trial is taking place. If we are to provide a technical facility there should be some distance between the two and if we are going to implement this system we should do it right.
I welcome the provisions of section 12 (3) which states that when evidence is being given through a live television link, through which presumably the child will see the person asking the questions, neither the judge nor the barrister or solicitor concerned in the examination of the witness shall wear a wig or gown. Given that this is the first legislation which will curtail the enthusiasm of the Bar Library in relation to the wearing of wigs and gowns I should put it on record that solicitors do not wear wigs. I have come across the occasional old fashioned solicitor in rural areas who is still somewhat taken by wearing a gown but, presumably, the only type of wig a solicitor wears is a toupee. However, we are talking about the type of wigs which barristers traditionally wear and I welcome this provision in the legislation.
It, of course, mirrors the provision we included in the Judicial Separation and Family Law Reform Act, 1989. Whereas the provision in the 1989 Act is widely obeyed by most judges and counsel, it is still not obeyed throughout the country. I get reports that some Circuit Court judges have a psychological disability in relation to taking off their wigs; there are also barristers who, physiologically or psychologically, find it difficult to come to terms with not wearing a wig. I have not been in the courts of judges who have this difficulty in regard to wigs and, no doubt, if I appear there wearing my lawyer's hat my presence will not be greeted with a round of applause or too much enthusiasm. There are also members of the Bar Library who find it difficult not to wear their wigs and gowns. There should be an express provision in this legislation to the effect that a failure to disrobe should invalidate a trial. There is a different legal terminology which I am trying to think of but we should put in an express penalty of which everyone will be conscious. I do not think that any judge would like to see a sentence handed down for child sexual abuse — or any other sexual offence — overturned by the High Court or another court because the judge felt it was necessary to sit in court wearing 17th century regalia. No member of the Bar Library could justify that.
It was assumed when the 1989 Act was passed that, at the very least, the Judiciary would comply with it without having to suggest any form of penalty. I am not suggesting that judges should be sent to jail or fined but there should be a provision in this Bill stating that if a trial took place in circumstances where wigs and gowns should not be worn — and where they were worn — the result of the trial should be rendered null and void by a failure to comply with the provision. That would resolve whatever remaining psychological difficulties there are within the judicial mind or the Bar Library about the wearing of wigs and gowns. Indeed, if I had my way, I would ban outright the wearing of wigs and gowns in toto for all court proceedings. I do not know to what extent wigs and gowns add to the cerebral rumblings of the legal profession or to the dignity of court procedures but I suggest that if Members of this House felt the need to continue to wear the regalia worn in the House of Commons at the turn of the 18th century, we would be regarded as odd. I do not know why the legal profession think it necessary to wear wigs and gowns. I have never been ill at ease in a courtroom without one or incapable of representing the interests of clients. Let us have this provision in section 12 (3) but also provide some sort of penalty to ensure that it is complied with. The Minister should take his courage in his hands and put a provision in this Bill — or in a future Bill — which, once and for all, abolishes the wearing of wigs and gown for judges and barristers.
Section 13 is particularly important. As I understand it, it is probably designed to implement a recommendation of the Law Reform Commission contained in paragraph 7.26 of their report on page 78 where there is a reference to a "child examiner", although we do not refer to this in the Bill. Section 13 provides for an intermediary in certain circumstances to conduct the cross-examination of a person where that person is accused of an offence, which is mainly a sexual offence or one of violence, and if the person is under 17 years of age and giving evidence. It says that the court may, on the application of the prosecution or the accused, if satisfied that, having regard to the age or mental condition of the witness, the interests of justice require that his cross-examination or re-examination, or any part thereof, be conducted through an intermediary, direct that any such examination be so conducted. I have some reservations about this. I am fully in favour of using the television link but the Minister should clarify section 13. How will it work? If someone is accused of a serious offence, of an assault or sexual assault, and their counsel has instructions to cross-examine someone to elicit the truth, and that person is denying that he or she has committed this assault, if a series of questions is to be put to a witness to tease out the truth, will the counsel for the accused whisper questions to an intermediary who will ask them in exactly the same language? Will the counsel for the accused provide a series of written questions for the intermediary to put to the witness? In what way can the questions be followed up? If a reply comes back that no one has anticipated, how does the instant cross-examination take place? I have already said I am concerned about some of the pressures put on people who have been the victims of these appalling events but there is substantial concern that we could, by doing that, wrongly send people to jail for offences they have not committed. I do not know how this proposal in relation to an intermediary will work in practice and I have considerable worries and reservations about it.
The intermediary is to be a person appointed by the court who, in the opinion of the court, is competent to act as such. Will the intermediary be a member of the legal profession? Will it be a social worker, a barrister, a friend or relation of the victim? Presumably it will not be a friend or relation of the accused. What qualifications will an intermediary have? Will it be an ordinary GP? Should it be a child psychiatrist? What is their function? Will they repeat questions which the prosecution or the defence want to ask? When this Bill is passed I should not like to see that there are sections in it which are unworkable; we can bring Part III into force by one ministerial order or not bring it in at all because of defective provisions. I have no doubt that this is well-meant, and I am not criticising the Department, the Minister or the draftsman. However, there are substantial problems in regard to the application of that in a court trial provision.
I presume that the provision is designed to deal with the recommendations contained in page 78 of the report of the Law Reform Commission. Paragraph 7.26 of the report states:
It will take time to train examiners, whether they be lawyers acquiring psychological skills or vice versa. However, the law should provide at once that, although cross-examination by one's own lawyer would continue to be the norm for the time being, the court should have power to appoint an examiner, for special reasons, on the applications of the DPP.
We recommend that the accused should continue to be entitled to cross-examine the alleged victim himself or through his counsel or solicitor at the deposition stage and (when the presence of the child is required) at the trial, except where the court is satisfied that, having regard to the age and/or mental condition of the alleged victim, the interests of justice require that the cross-examination be conducted through a child examiner, in which event the examiner would be required to put to the alleged victim any question permissible under the rules of evidence requested by the defence.
Child examiners should be experienced in interviewing children and specially trained in child language, psychology and the relevant law with particular emphasis on the law of evidence.
I do not know how we are going to implement this proposal. So far as I am aware, we do not have such people. I do not see how it can work. I do not see how it would be less intimidating for a child examiner, so called, to put a question than it would be if the lawyer put exactly the same question. The approach here is that lawyers should be put under a specific duty in cross-examining somebody who is alleged to be a victim of such an offence to have regard to the tender years of the victim. Indeed, courts will control the approach of a lawyer in cross-examination when dealing with young people if there is a perception that what is happening is merely an attempt to upset someone who is truthfully giving evidence rather than getting at the truth. We are trying to prevent young people and children who have been the victims of abuse or assault from being frightened by the legal system and lawyers.
I have a very real and serious concern that section 13, though well intended, first, will not work and, second, may be unconstitutional and violate Article 38 of the Constitution in the context of the due process provisions. I would also be seriously concerned that if this section came into force and it was applied, and someone was convicted of a sexual offence — who should rightly be convicted because they actually did it — did not find that the charges against them were set aside on appeal due to a higher court taking the view that either this section could not operate in the way it did or that it was unconstitutional. I believe there is a real problem with this section. While I believe the Law Reform Commission meant well by it, I am not convinced this section will work. I am assuming in everything I said that this section comes out of paragraph 7.26 of the Law Reform Commission's report. Perhaps the Minister will clarify this point when replying to the debate.
I wish to refer to another suggestion in the Law Reform Commission's report which I presume is not intended and which does not seem to fall within the wording of this Bill. On page 68 of the report the Law Reform Commission talk about the presentation of evidence through a surrogate witness. They say, "... this would represent so radical a departure from the norms of our system of criminal justice that the commission does not think it either practical or desirable to recommend it". That was a quotation from the original working paper. They say in page 70 of their report: "Nothing we have heard or read since publication of the Consultation Paper has modified our original strong view against the use of surrogate witnesses."
Obviously a surrogate witness would be someone who gave evidence instead of the young person. Clearly this suggestion is not being implemented — and it is right that it should not be implemented — but I am not sure what an intermediary can do. Could intermediaries go off on their own line of cross-examination? Could they be controlled by the defence or by the prosecution in the questions they ask?
We will have to look at this section very carefully on Committee Stage.
I felt it was right to make these remarks in order to give the Minister and his Department an opportunity to have another look at this section. There is a need to tease out this section considerably more. If the Minister intends to keep the section in the Bill, a great deal more substance will have to be given to it. For example, it is not even clear who will pay for the intermediary. Will the intermediary be paid by the State? If, as a lawyer, I represent someone who is the victim of sexual abuse, the State will be prosecuting, the alleged offender will be defending and the victim would not have a right of appearance or audience before the court through their lawyer. What will happen if the victim's parents say they want their daughter to be questioned through an intermediary? Can they ask the court to do that? Do we have to wait to see if such a request is sought by the prosecution or the defence? I cannot imagine a defence lawyer ever seeking that facility. This matter will have to be teased out as it is dangerous and could give rise to huge problems.
I wish to refer to section 15 which deals with the use of video recordings as evidence at a trial. This section will require an amount of teasing out on Committee Stage. I do not want to turn Second Stage debate into Committee Stage debate but I want to put down a marker on this section. Section 15 (1) (b) provides:
a video recording of any statement made by a person under 14 years of age (being a person in respect of whom such an offence is alleged to have been committed) during an interview with persons who are in the opinion of the court appropriately qualified for the purpose.
Although this section applies to general assault, it is specifically designed to deal with the area of sexual assault. I want the Minister to clarify what is meant by people who are "appropriately qualified for the purpose". There has been a huge problem in this area in the United Kingdom; there has been a smaller version of this problem in Ireland. I wish to pronounce an interest in this issue in the sense that in recent years I have appeared in court cases on behalf of parents in circumstances where there have been allegations of sexual abuse and it has emerged that those allegations were made on very flimsy grounds. Indeed, in some instances it emerged that there was no basis for the allegations made and that conclusions were reached by so-called professionals which should not have been arrived at.
I am not saying this in the context of taking the view that we do not have a problem with child sexual abuse, we do, and it is a growing problem. To a lesser extent than they did in England, in the social work professions and certain elements of the medical profession, we suffered from a particular problem which was that until the mid-eighties everyone assumed there was no such thing as sexual abuse in Ireland. When we realised we had such a problem, this led certain professionals to assuming that if an allegation was made it always was true. When allegations were made, instead of trying to ascertain whether a child had been abused, validation procedures were adopted. A validation procedure is a procedure to confirm the prejudice you already have. In other words, you are told someone has done something and you do everything possible to validate it, that is, confirm that everything you have been told is right as opposed to investigating whether what you have been told is right.
In the context of using videos to record interviews, the Law Reform Commission seem to envisage a professional individual, perhaps a social worker with special training, accompanied by a female garda, conducting a questioning session. Traditionally the video recordings which have been made and used extensively in family law cases behind closed doors in our courts have involved medical personnel — some of whom have been qualified child psychiatrists and some of whom have not been using something called an "anatomical doll" by way of play to ascertain whether the method of play used by a child with a particular anatomical doll indicated that the child had sexual knowledge. If the child had sexual knowledge it was assumed that the child had been sexually abused.
This type of procedure can be used in two ways. It can be used for what are known as therapeutic purposes, that is, on the assumption that a child has been abused and as a therapy to help unblock from the child's mind the experience the child has gone through, to assist the child in coming to terms with that experience and to determine what type of future care is necessary for the child. Alternatively, the procedure can be used for forensic purposes. The difficulty both in England and Ireland is that there has been an addiction to the therapeutic approach. For example, these procedures are used on the assumption that someone has been abused. This leads to the problem whereby professionals, be they social workers or medical personnel, put leading questions to children and, intimidated by adults, children may give the answer they feel the professional is seeking. That has led to false conclusions being drawn of sexual abuse in a number of cases. Judgments of the High Court have resulted in committal orders being made and children subsequently released. I have been involved in some District Court cases where children were taken into care precipitately by health boards on the basis of allegations that were subsequently established to be totally untrue. This arose as a result of the so-called therapeutic use of anatomical dolls. The Law Reform Commission dealt with this matter in some detail in their consultation paper and their final paper.
Section 15 needs to be addressed. We need to make it quite clear that in so far as video recordings are to be used they should relate to a procedure whereby a person with the necessary professional qualifications engages in a forensic procedure that expressly rules out putting leading questions to a child, a procedure which is designed in a very sensitive and informed way to elicit the truth. The Law Reform Commission in their 1990 report deal with this issue, which should be addressed in this legislation. They refer to the difficulties that have arisen and state:
In the Consultation Paper, we considered the controversy and debate that has arisen in relation to the reliability and status of testimony elucidated by professionals from children suspected of being sexually abused. We pointed out that many workers in the area of child sexual abuse had modified their clinical techniques using the assistance and advice of the courts and legal experts so that the interviewing in many cases was more acceptable to the courts.
That applied in the English experience following a large number of cases in which the evidence was highly unsatisfactory. The report also stated: "We also set out a summary of the stages of interviewing and the modified structured interview now in use in Great Ormond Street Hospital in London". The Law Reform Commission in their original consultation paper provisionally made the following recommendation, which they now say is their final recommendation:
At no stage in the investigative process in relation to child sexual abuse prosecutions should the child be subjected to leading questions. This exclusion of leading questions should apply also in non-criminal cases where an issue of child sexual abuse arose.
In this Bill we are dealing primarily with criminal prosecutions although it will have a knock-on effect in the sense that in a prosecution in the criminal area the methodology used to determine whether there has been abuse may have civil implications for the future welfare of the children concerned. There is a very special need to include in this Bill a provision implementing the recommendation of the Law Reform Commission against the use of leading questions. That is of particular importance and is an issue that needs to be addressed fully and promptly in this Bill.
A case was taken in the Supreme Court in which I was involved where a care order made in favour of the Eastern Health Board some years earlier was set aside. In that case there was a combination of physiological examination and use of anatomical dolls, and the Supreme Court sought to set out guidelines as to how courts should approach these matters in future. In this case there was a video available of the interview that had taken place but the court did not look at it and the Supreme Court said that was quite wrong. That case was reported in 1990 and two judgments were given by the Supreme Court, but I will not detain the House by going into the details.
All the concerns that arise from the different types of interviewing techniques, the possibility of putting words into the mouths of children, or indeed of adults drawing conclusions from children's play that may be unwarranted are very well illustrated in a special series of law reports which detail the difficulties experienced in the Great Ormond Street Hospital. In the 1987 family law reports there are in the region of ten detailed court judgments detailing all the problems with the techniques as they were operated and the difference between a therapeutic and a forensic approach to interviewing children. It seems the intention of section 15 is to bring into play these interviews and to have them used as evidence. Therefore, we must be very sure that professionals do not draw conclusions from play techniques that are unwarranted and that they do not, by leading questions, make incidents that are innocent look a great deal more worrying than they are.
What I do not understand is why we have not taken into account in this Bill the recommendations of the Pigot Committee, which are also contained in the Law Reform Commission's report. The Pigot Committee make specific recommendations designed to ensure that we promptly address this issue. There is talk of providing a code of practice, and this would have direct application not only to how the video recording of evidence is operated but what should happen with regard to an oppropriately qualified person taking statements. I suggest that we incorporate the Pigot Committee recommendations in regulations to be made under this Bill. Paragraphs 7 and 8 of these recommendations should be specifically taken on board as part of the statutory provisions of the Bill. Paragraph 7 states:
Video taped interviews should be conducted as far as possible in accordance with the rules of evidence which govern the examination-in-chief of witnesses in court, which it is designed to replace. Thus, leading questions should be avoided. "Where children are concerned the courts already allow some latitude in this area depending upon the child's age and understanding. We think the important point is that interviewers should never be the first to suggest that a particular offence was committed or that a particular person was the perpetrator. We do not believe that the courts would exclude fairly conducted interviews for purely technical reasons or because of the inclusion of occasional insignificant leading questions. Nevertheless, it should be remembered that crucial leading questions which relate to the central facts of a case must be avoided wherever possible. This may well result in the exclusion of the interview at court."
It goes on to say under the heading "Anatomically Correct Dolls": "A code of practice should make clear that such aids should only be used to help the child to establish details with which he or she may have verbal difficulties once the general substance of a complaint is clear". There are other Pigot Committee recommendations which the Law Reform Commission say we should take on board, but I will not go into them now.
There is insufficient substance in section 15 to ensure, first, that the section will work and, second, that leading questions will not be asked during interviews that may limit the usefulness of a video or that could result in wrongful convictions taking place. We must deal with that matter. Subsection (2) states that any such video recording shall not be admitted in evidence if the court is of the opinion having regard to all the circumstances, that in the interests of justice the video recording concerned or that part should not be so admitted. I am concerned that if procedures about no leading questions, about the way in which the matter must be approached and about it being a forensic procedure rather than a therapeutic procedure, are not set down clearly, then there will be a trial within a trial every time a video tape of an interview of his nature is made featuring a young child who has been the victim of abuse. Suggestions will be made that leading questions have been put, that the video is prejudicial and that this should not be used. If the originating court does not find in favour of the defendant the case will be appealed. Instead of the videotaping of interviews being a procedure to deformalise court proceedings, to take the pressure off young people and to ensure that those who commit sexual offences are properly dealt with in the courts and that the courts have the facility to determine guilt and innocence and pass sentence, we could create a bureaucratic nightmare and not facilitate the bringing to justice of those alleged to have committed an offence.
Section 17 also reflects a Law Reform Commission recommendation. There is very little the Law Reform Commission have said in his regard with which I disagree but I have reservations about section 17. Provision is made that when a person under 17 identifies an accused in an identity parade or other identification procedure the presumption will be raised that the identified person is the person who committed the offence in question. The Minister of State, Deputy O'Dea, will be aware that many unfortunate people picked out at identity parades for having committed an offence have subsequently been discovered to have not committed that offence. It appears that section 17 turns the identity parade procedure into a method of creating presumption of guilt rather than innocence at the start of a trial. In the administration of our criminal justice system we should have learnt by now that sole reliance on identity parade identification in the determination of the alleged perpetrator of an offence can be a very dangerous and injudicious exercise. Turning such reliance into a presumption of guilt creates even greater difficulties.
I emphasise our need to ensure that we make trials of this nature much less horrific for those who have been the victims of abuse and assault. However, we must not deal with those matters in a way that could result in our sending to jail people who should not be in jail. The presumption of innocence must not be taken away. I wonder whether section 17 might present constitutional difficulties which is the last thing we would want to happen.
Section 18 extends all of those provisions to persons who suffer from a mental handicap. I welcome those additional protections.
I do not wish to be misunderstood in what I am saying. I welcome many of the measures in the Bill. I am trying to indicate to the Minister that for some provisions to be operational and work properly the Bill needs to be teased out and given more substance. Unless that is done there will be difficulties with one or two aspects of the Bill. There has certainly been a need to provide a more humane approach in dealing with sexual offences that come before the courts, in particular as they affect young people, and towards taking some of the horror out of the courthouse atmosphere. Part III is most welcome in so far as that is its intention.
Part IV deals with the competence and compellability of spouses and former spouses to give evidence. I do not intend to spend nearly as much time on this measure as I did on Part III. The provisions contained in Part IV are long overdue. For some time we have needed to move away from the 19th century legal position that made spouses as witnesses incompetent and not compellable in several kinds of trials.
One curious aspect is the reference to judicial separations or divorce a mensa et thoro. The Bill makes a differentiation between the position of a spouse who has been separated by decree of judicial separation and the position of a spouse who has not. To put it in simple terms, when a decree of judicial separation has been granted a spouse may be compellable and, in certain circumstances, when a decree of judicial separation has not been granted a spouse is not compellable. In the context of marriage breakdown, only a small proportion of couples whose marriages fail go all the way through our courts to get a separation decree. Many separation proceedings are issued, very often because either the husband or the wife do not accept the reality that the marriage has broken down and resist the conclusion of some kind of amicable arrangement whereby the couple can separate without having to go through the court system. However, in many instances, even when separation proceedings have issued, before the court is required to make a decision, the husband and the wife realise they are better off reaching agreement, resolving their own difficulties and maintaining a degree of control over the result than they would be if they allowed the case to go before the court for a judge to make a decision, with all the extra expense and upset that would involve. The reality is that many more couples separate by concluding what is known as a deed of separation or a separation agreement than by getting a decree of separation. In so far as the Bill deals with judicial separation and divorce a mensa et thoro, it seems to me the legislation should provide for the same legal position following the conclusion of a deed of separation as for a decree of separation.
Another curious issue is that the Bill makes no mention of nullity law. The Law Reform Commission stated that if a decree of annulment were granted, making a marriage void, then there was no marriage and that would give rise to no problems. If a decree were granted in respect of a voidable marriage, nullifying it, I am not sure what is the position with regard to compellability. For example, if an offence was committed by a husband prior to the High Court making a decree of annulment and then the High Court made a decree of annulment of a voidable marriage, at that stage would the wife be a compellable witness, or is she not compellable in that the offence was committed before the court decree was granted? It might be a little esoteric to raise that matter at this stage but it should be examined when we are trying to tidy up the legislation. Those questions arise under sections 19 and 21.
Other general recommendations by the Law Reform Commission are not, so far as I can tell, taken on board in the Bill, although some of them do not necessarily require legislation. Page 81 of the report of the Law Reform Commission states that the court should admit the use of anatomical dolls and other demonstrative aids to testimony. I do not know whether specific provision needs to be made for that in legislation. Paragraph 735 (c) refers to the provision of books, games and various other facilities designed to make the rooms that children wait in a good deal less intimidating. They say that similar provisions should be made for excluding from the court persons not involved in the case as are made in the context of rape cases. In terms of other sexual abuse cases, I am not sure the Bill excludes from attending at court people who might otherwise attend to observe the court proceedings.
On page 84 of the Law Reform Commission report there is a reference by the commission to special care being exercised by the Director of Public Prosecutions in selecting prosecuting counsel in child sexual abuse cases. It goes on to say that in the case of the appointment of independent representatives of children in such cases the introduction of a panel system might be considered. It says the legal profession should give serious consideration to adopting special codes of practice relating to representation in and conduct of cases involving children. The profession should also consider ways, including the possibility of a certification system, of ensuring that lawyers involved in such cases have appropriate training and experience. The same should apply, they suggest, to judges.
If the Minister did not want to legislate for lawyers I would have hoped that he would at the very least have urged the Bar Council and the Incorporated Law Society to provide for the type of special training the Law Reform Commission is talking about. I am wondering whether we should say something about that in this Bill. Just as we provided in the Family Law (Judicial Separation) Act, 1989 for certain codes of conduct by lawyers dealing with family law cases, it would seem to me that there is certain merit in taking on board what is said there. If the Minister took on board what is said there and certain members of the legal profession became specialists in these areas, it might get rid of the need for this examiner, this intermediary, that I spoke about earlier, whose job would be exceedingly difficult, putting questions to a child in circumstances where he was acting either on behalf of the prosecution or the defence.
There is one matter about which I am extremely mystified. There was a court case ten days ago about which you and I expressed considerable concern. It was a case in which a father was facing 14 charges of incest before Waterford Circuit Criminal Court and substantial oral evidence was given by the daughter. Without the father being called to give evidence the judge gave the jury a direction to return a finding of not guilty. The daughter had said in her evidence that the man who had sexually interfered with her was her father. Counsel acting for the defence said that they were not accepting that as evidence and the judge gave a direction. I am not a criminal lawyer, and I do not pretend to be an expert in criminal law, but I am told that if the birth certificate had been produced in court with the accused named as father that that of itself would not necessarily have been sufficient. I like to stand outside the legal profession on occasions, even though I am involved in it, and anyone outside the legal profession would say there was a lack of commonsense in what happened in that case. Once this girl went into the witness box and said that this man was her father it was for him to go into the witness box and deny that and for the jury to reach their decision. If there was a birth certificate and if this girl had been residing in the family home throughout her childhood with this man who had, throughout her childhood, appeared to be her father, it would be reasonable for the jury to assume that he was her father. However, he never went into the witness box and the jury was directed to discharge him.
I tried to raise this issue on a number of occasions in this House. Thankfully the Leas-Cheann Comhairle was finally successful last Thursday in getting the Adjournment Debate that I had been unsuccessful in getting and there were widespread newspaper reports to the effect that the Minister for Justice said that this problem was resolved in the Criminal Evidence Bill, 1992 which is before the House. There is only one possible section that I can see where this issue is remotely addressed in this legislation, unless I am seriously missing something. Section 4 deals with the admissibility of documents. Generally, I welcome what is said about the admissibility of documents and at this stage I have no particular issue to raise on the generality of Part II though there are one or two aspects that will need to be tidied up on Committee Stage. I do not want to delay the House by going into that at this stage. Section 4 says:
In this Part "business" includes any trade, profession or other occupation carried on, for reward or otherwise, either within or outside the State and includes also the performance of functions by or on behalf of—
(a) any person or body remunerated or financed wholly or partly out of moneys provided by the Oireachtas,
In section 5 there is provision for the admissibility of certain documentary evidence. I suppose the Registrar of Births, Marriages and Deaths is paid for by the Oireachtas for performing a function in so far as he is involved in birth certification. However, I think it is stretching it to say that that provision addresses the problem that arose in that incest case in Waterford. There are specific provisions in the Status of Children Act, 1987 that in certain circumstances when birth certificates are produced certain presumptions arise. I am not even remotely convinced that this Bill addresses the problem that arose in the Waterford case. Perhaps it is the Minister's intention to bring in an amendment on Committee Stage. It is a criminal law evidence Bill and it seems there would be no difficulty in inserting a specific condition in the Bill to provide that if a birth certificate is produced before a court that there will be a presumption that the person named as mother is the mother of the child named on the birth certificate and that the person named as father is the father of the child named on the birth certificate unless there is evidence to the contrary. In other words, the presumption would be that the person is the father and a balance of evidence should be provided. One cannot simply say that one is not the father. If we actually brought into force the genetic fingerprinting legislation that problem could be addressed. I cannot blame this Minister as he has only been in office a few weeks, but I criticise the Government in relation to the Forensic Evidence Bill, 1990. If that had been law before that incest case was heard and if the person alleged to be the father had raised a doubt as to whether he was the father of the girl who had suffered alleged offences of incest, the court could have asked for genetic fingerprinting and it could have been established whether this man was or was not the father. We passed the Bill 14 months before the trial. We did not bring it into force so the facility was not available to the court.
I do not see where in this Bill we address that issue. I saw only the newspaper report because the Official Report is not yet available and the Minister may have been misquoted, but my understanding of it was that the Minister, when responding to the Leas-Cheann Comhairle on the Adjournment debate last Thursday, said that this Bill addressed this problem. This Bill does not address the problem. The Minister repeated it yesterday on RTE. He was wrong.
I am greatly alarmed that the Minister did not even refer to the problem on Second Stage. The case received so much public notoriety and so much comment on a cross-party basis from people who had nothing but a genuine concern to ensure that this sort of mess did not happen again, that one would have assumed there would at least have been a paragraph in the Minister's speech pointing out that this issue was addressed in this Bill.
If it is addressed by various sections in Part II, it is addressed in a particularly lugubrious way and it seems, from the general reading of Part III, that even if it provided for it being admissible it can be objected to in any case, and then we are back to the same problem.
Let me conclude on this issue by saying that I hope an amendment will be put forward by Government to address that evidential problem in incest cases. There is absolutely no reason a necessary provision could not be included in the miscellaneous section of this Bill to address the problem. I can assure the Minister that an amendment will be tabled by Fine Gael to address the problem. As the Minister said, this is not a contentious Bill. I have no doubt that the Minister and the Minister of State are as anxious to address this issue as the Leas-Cheann Comhairle and I are. I hope a very clear, unambiguous section will be included in Part V, the miscellaneous provisions, to ensure that the events that took place in Waterford ten days ago are never again repeated in our courts, that whenever a young woman comes forward alleging she has been the victim of the most appalling sexual offences, having given evidence in court and having gone through the stress and upset of that, she does not watch the person whom she alleges is the guilty party go free on a legal technicality without ever giving evidence. That is quite wrong.
I have probably over-stayed my welcome through the indulgence of the House in the remarks I have made which were somewhat lengthier than I had originally intended. But I feel very strongly about these issues. I and the Fine Gael Party are very committed to ensuring that we have the necessary legislative changes. My colleague, Deputy Cotter, our party junior spokesperson, brought forward a very well argued discussion document on the whole are of child sexual abuse. We are very anxious to enact legislation that will take us into the year 2000 and that properly addresses the issues. Despite the appalling numbers of cases of child sexual abuse being uncovered by our health boards, only a very small number results in criminal prosecutions. We must ensure that our law is properly framed and adequate to allow such prosecutions to take place. We are anxious to ensure that the law we enact in this area is workable while preserving the balance about which I have spoken.
A final matter of curiosity the Minister might address when replying — and to which I will refer very briefly — arises under the provisions of the section dealing with evidence given by spouses. We are a rather strange country in a number of ways. In Ireland at present we probably have the highest numbers of couples living in a state of criminal bigamy compared, proportionately, with the total number of couples living bigamously in any other EC country. We have the Roman Catholic Church granting decrees of nullity in circumstances in which civil courts cannot grant them. Apparently parish priests in different parts of the country are quite happy to remarry people after church annulments. There are a number of couples who have remarried in such circumstances, whose marriages are recognised in the eyes of the church but are bigamous in the eyes of the State. Then there are people whose marriages have broken down, who do not have the facility of church annulments but who board a plane to England, Haiti, The Bahamas or even places like Mexico, for a couple of weeks, somewhere they think will facilitate them, and get decrees of divorce that are not recognised, remarry, return here and live in bigamy.
One question our Census of Population has not yet posed is: Are you a bigamous couple? I suspect that if we began prosecuting all of the people truly living in a criminally bigamous state at present there would be sufficient criminal prosecutions in that area of the law to keep our courts completely blocked up for approximately ten years. No doubt it would lead to an enormous expansion of the legal profession of specialists who do nothing but work in the area of bigamous cases.
One of the reasons there have been virtually no prosecutions that have been successful in this area to date has been the anomalous position concerning the laws of evidence. If I am a husband, my wife gets a church decree of annulment and marries someone else, she has gone through the ceremony, the Garda know about it, the local community know about it, the Director of Public Prosecutions knows about it and want to bring a prosecution for bigamy. Under the law as it obtains I cannot give evidence against my wife because I am not a competent witness to give evidence that my wife is now in fact committing bigamy with someone else.
It appears to me that the provisions of this Bill will resolve that problem, that the Irish solution to the Irish problem of turning a blind eye to bigamy has been that spouses have been incompetent witnesses against the other spouse when that spouse engages in a bigamous marriage. The provisions of this Bill, in rendering all spouses competent in criminal prosecutions brought against their spouses, lift the block against spouses giving evidence in bigamy trials.
What I want to know is: what will the Attorney General and the Director of Public Prosecutions do after the provisions of this Bill become law? Are we to embark on a whole series of bigamy trials or will a blind eye be turned? What will be the position if the Attorney General or the Director of Public Prosecutions does not do his job? In recent years there have been some instances with which the Minister of State present will be familiar. I think there was one in Limerick — but I could be wrong — of the first spouse trying to bring a private prosecution for bigamy, then discovering they could not get past the District Court because the only evidence available was their own and they were not competent to give it.
If that is gone it seems to me that, even if the State continues to turn a blind eye, the provisions of this Bill will leave all of those people, who have gone through those second ceremonies of marriage, vulnerable to private prosecutions at the hands of their first spouses. If nothing else the provisions of this Bill will require us to look at our marriage laws and, very rapidly, at the issue of divorce. If we do not, no matter what the view of the Director of Public Prosecutions or the Attorney General, the product of this Bill will be a number of bigamy criminal cases inevitably institutied by spouses who feel abandoned, deserted, who were greatly hurt by the fact that their spouse has gone through a second marriage. I do not believe anybody has realised that this is one of the implications of the provisions of this Bill. It is as well that we know it is because, in making spouses competent in this way, the block and the barrier in this area is lifted.
I hope the Minister will regard my comments as constructive. They are designed to ensure that we enact a very good Bill. This Bill is a good deal more complicated in its implications than may have been apparent from some of the public comment in recent days. I would seriously suggest to the Minister that, with a view to processing it quickly, with a view to ensuring that we do the job properly, we should take Committee Stage in a Special Committee of the House rather than within this Chamber. That does not mean it need take weeks or months but it would provide the facility of getting the Bill enacted at a time when perhaps the Finance Bill and Social Welfare Bill will be dominating this House. By taking it in Special Committee we would be able to tease out its implications in a non-party, non-political, non-partisan way ensuring that the best possible measure is eventually enacted into law.