Dáil Éireann díospóireacht -
Tuesday, 26 May 1992

Vol. 420 No. 3

Private Members' Business. - Criminal Evidence Bill, 1992: Committee Stage (Resumed).

Debate resumed on amendment No. 33:

In page 10, subsection (1), lines 11 and 12, to delete "unless the court sees good reason to the contrary" and substitute "unless the interests of justice otherwise require".

—(Deputy Cotter.)

Minister of State at the Department of Justice (Mr. O'Dea)

Deputy Taylor argued that we are changing fundamentally the tried and tested system whereby a witness goes into a witness box in full view of the courtroom and is questioned in the presence of the judge, jury and counsel. Deputy Taylor's contention is that since we are making such a radical change he would prefer the more conservative formula suggested by Deputy Shatter's amendment that the judge should not allow evidence to be taken by television link unless the interests of justice require it. As the Bill stands, the judge is obliged to do this unless there is good reason for not doing so.

This relates to a small minority of witnesses in criminal trials. Part III of the legislation applies only when the witness is under the age of 17. That would be a very small percentage of witnesses in criminal trials. Secondly, it applies to a limited, narrow category of offences. We may be making a fairly fundamental change in the rules of evidence but we are doing so only in respect of a small percentage of the total number of people who will be giving evidence and only in relation to a tiny percentage of the totality of offences in which criminal proceedings are brought.

I do not accept that the change we are making in the giving of evidence under Part III will unduly prejudice an accused. If it is shown that this is in some way prejudicial to the accused or if it results in people being convicted who plainly should not have been convicted, the Government will move very quickly to change the legislation. I do not envisage that this will be the case, particularly in the light of international experience. This system operates without any great objection in most civilised countries. It is not the intention of the Government to make the accused more vulnerable or to bring about a situation where the accused in certain types of cases will almost certainly be convicted. Our intention is to protect vulnerable witnesses in relation to accusations of particularly nasty types of offences. That is the thinking behind the section. We are also trying to ensure that the trauma which these vulnerable victims may be made to suffer will not be such as to enable the guilty to go free, as has happened in many cases in the past.

I should like the Judiciary in this matter to take their responsibility seriously. If a court simply decides to use the television link even if it plainly should not be used, that will have to be recognised and taken on board by the Government. I do not envisage that it will happen. It has come to my attention, although perhaps not to the attention of Deputy Taylor, that some judges have been very quick to go public, not necessarily in the media but when speaking in a private capacity, saying that they find this part of the legislation seriously objectionable and are not prepared to put it into effect. We want to ensure that they will do so. We do not want to give them a formula such as "the interests of justice" to hide behind. We want to make it plain that the use of this equipment in such cases and for such witnesses will be the norm, unless there is some good and obvious reason why it should not be.

It has also been brought to my attention that the higher one goes in the judicial system the greater the expressions of reluctance seem to be. Hence Deputy Taylor's point about appeals is not valid. He made the point that judges do not always get their decisions right and the more points of law on which a person can appeal the better. Experience in this country and in the United Kingdom has shown that the courts of appeal do not always get it right either. In many cases the trial court was right and the court of appeal was wrong. There is no rule that the court of appeal must be right more often than the court of trial. We want to ensure that the higher echelons of the Judiciary in the courts of appeal do not take it upon themselves to hinder in any way the development of this system for vulnerable witnesses in these types of cases by overruling conviction after conviction on the basis that the television link evidence should not have been used. We want to make it crystal clear that this is to be the norm in this type of case. For that reason I could not accept Deputy Taylor's argument. I am not anxious to give any judge who may be reluctant to use this system a formula to hide behind.

Deputy Cotter questioned what constitutes a live television link. The United Kingdom legislation uses the phrase "live television link" in section 32 of the Criminal Justice Act, 1988. I am far from suggesting that just because the British do it it is right and we should follow the British system slavishly. I would point out, however, that the British system is very similar to ours and their experience is that the non-definition of that phrase "live television link" has caused no problems there.

Deputy Cotter asked how this system will work in practice. A demonstration of these facilities took place in the Four Courts on 29 April, 1922 at 4 p.m. I arranged for Deputy Shatter, Deputy McCartan and other Opposition spokesmen to be invited because they had said they would like to see how it worked in practice. The demonstration took place in Court No. 4 in the Four Courts and was given by AEL Video (Ireland) Ltd. Representatives of the Judiciary, the Bar and the Law Society were present, as were Deputies Máirín Quill and Alan Shatter. Deputy McCartan was unavoidably absent as he had to be in London for the Judith Ward appeal.

The system provides a separate monitor for the judge covering the witness room. It was suggested by some of those present that this would not be enough. Counsel should, they said, also have a similar monitor at their table, so that they too could be reassured that nothing irregular, such as prompting by gestures, was taking place. It was also said that the judge's separate monitor was inadequate in that, while it would show five-sixths of the witness room, it would not be detailed enough to indicate any "prompting" by an intermediary of a child witness.

In discussions with the firm's representatives afterwards, the Department of Justice said they would wish to have an additional monitor covering the witness room for counsel's table. They also said that they would want two "surveillance" cameras in the witness room. One would (as in the demonstration) cover the witness room or most of it. The other would cover the witness and any intermediary, so that any irregularity on the part of the intermediary could be detached. A switch on the monitor would select whichever camera the judge or counsel wished to operate. There is of course also a camera in the witness room giving continuous coverage of the head and shoulders of the witness and replayed to the large-scale monitors in the courtroom. The firm's representative said that there would be no difficulty in making these modifications. From the point of view that we are getting the technical facilities right we are making this as close as possible to the actual proceedings that take place in a courtroom so that every relevant person can see everything. My inclination is to let the formula in the Bill stand.

Mr. Cotter

I am glad the Minister of State went to the trouble of visiting the Four Courts and that he put certain people through the procedure. I am glad people are concerned about this and the following sections because this procedure is entirely new to us. Naturally those who are delivering justice in the courtrooms are anxious that whatever procedures are introduced should be operable and justice should continue to be seen to be done on both sides of the fence, by the accused as well as the prosecutor.

We must continue to look closely at section 12 and the following sections with a view to teasing them out and getting the Minister to focus on possible difficulties. The Minister should try to satisfy both himself and us that there will be difficulty on the ground when the first of these cases is being heard. The legal people are concerned because the old system, whereby people give evidence and are cross-examined which has been tried and tested for a long time, is working well and generally speaking the results are fair. When we propose moving into a new situation it must be examined from all sides to ensure we foresee at least some of the difficulties that will arise.

Mr. McCartan

I thank Deputy Cotter for batting for me to a certain extent. I apologise to the Minister of State and to the House as I was temporarily absent on business. I seek your indulgence to say I was unable to move amendment No. 32 for the same reason, but may I take it, for the purpose of these deliberations, that the House will have regard to it so that I can re-enter it on Report Stage if that is in order? I note the Minister of State is nodding approval. I say this for the record, because I need to make some mention of it, so that it can be taken on Report Stage. Regarding amendment No. 34 which I understand is being debated——

An Ceann Comhairle

We are on amendment No. 33. We will be coming to your amendment.

Mr. McCartan

This amendment is worthy of consideration and support from this side of the House. The wording of Deputy Shatter's amendment is preferable. It reflects an overall working principle that the interests of justice be served. I have no strong view on it. It is the formula of words used time and again when one is dealing with procedural matters. It is the other side of the coin of the wording contained in the subsection. If the court sees good reason to the contrary it is, in effect, finding that the interests of justice are not necessarily served and that, therefore, a ruling should be given one way or the other. My inclination is that the words contained in the amendment "unless the interests of justice otherwise require" should by and large, be the formula employed in these circumstances. Otherwise I have no particular view on the matter.

An Ceann Comhairle

Is the amendment being pressed?

Mr. Cotter

No.

Amendment, by leave, withdrawn.

An Ceann Comhairle

We now come to amendment No. 34 in the name of Deputy McCartan. Amendment No. 34 is consequential on amendment No. 60 and amendment No. 34a is an alternative to amendment No. 34. I suggest, therefore, that we discuss amendments Nos. 34, 34a and 60 together if that is satisfactory.

Mr. McCartan

That is agreeable. I move amendment No. 34:

In page 10, lines 17 to 20, to delete subsection (3).

The purpose of this amendment is to delete subsection (3), which is the Minister's ruling, as it seems necessary for this Legislature to rule in matters of this sort and that wigs and gowns should not be worn during proceedings of this sort. The purpose in wishing to delete that subsection is not in any way to frustrate the objectives of the Minister as it might seem. As the Ceann Comhairle has correctly pointed out, amendment No. 60 in my name, which seeks to insert a new section, proposes a far wider proposition as follows:

During the proceedings of any offence under Part III of this Act, including any preliminary proceedings, wigs and gowns shall not be worn by any judge, barrister or solicitor involved in any way in the said proceedings.

I am not confining it to proceedings by way of television. Time and again in this House we have had discussion on the desirability of wigs and gowns being used. In sensitive cases, in particular, where one is dealing with young people, or attempting to deal with matters that have to be handled in a gentle and humane way, certainly in matrimonial type proceedings, we have legislated that wigs and gowns and other paraphernalia of an alienating sort must be dispensed with. We have gone a little further in arguing that in matrimonial proceedings special courts should be assembled in buildings which are conducive to the nature of those proceedings. I am applying that general idea and principle to all proceedings under Part III of the Bill which, by and large, deals with proceedings relating to sexual offences, offences of assault, offences involving young people, children with impairment or witnesses with mental impairment or otherwise. As in matrimonial proceedings, there is need for a more humane and caring approach and for those reasons wigs and gowns are inappropriate. Those paraphernalia should not apply, not just for the televising of proceedings but for all proceedings under Part III.

It may seem remarkable to an outsider listening to this debate, first, that in this day and age men and women wear wigs on top of their hair. I saw a comment in a national newspaper recently by the redoubtable and former Member of this House, Mr. McDowell, that if there were to be a blanket prohibition on wigs a certain venerable member of the Upper House might have difficulty in coming into court — no names mentioned but I think we all know who I am talking about. To that extent I had better be careful in how I word my later amendment. I may have to address amendment No. 60 when we come to it.

In talking about wigs we clearly mean the artificial object of horse hair fixed so curiously and so anachronistically on the crowns of men and women who enter our courts and are addressed as barristers. I know I am addressing a member of the Bar across the Chamber this evening and I hope I am in no way offending his sensibilities in talking about this. I anticipate that a member of the Bar who is much more in touch with the real world than many who circulate in the august circles of the Round Hall will appreciate the importance of this amendment.

The curious thing is that this phenomenon exists. The second curious thing is that we, as legislators, in attempting to introduce some level of sanity and order touching on reality, must introduce into our laws a provision such as this. It is remarkable in the extreme that, in this day and age, members of the Bar have not come to the realisation and made these decisions for themselves. It is remarkable that this legislature must, in the latter half of the 20th century, give time to write into our legislation provisions dictating to the Bar and the legal profession how they should conduct and dress themselves in their own courts. It is a matter of some regret that we must deal with this matter here tonight. My proposal is broader than that contained in subsection (3). I am proposing its deletion in favour of my later amendment. I do not want to seem to do down the good intentions of subsection (3). I am saying that for the purposes of these proceedings by television or otherwise normal dress and decorum should apply in our courts, minus the wig and gown.

Mr. L. Fitzgerald

The Minister, and Deputy McCartan, seem to have no problem with the word "wig". Both, in their previous capacities, would have experience of the use of the wig in a particular setting. However, to a layman like myself there is a certain ambiguity in the use of the word "wig". Could it not happen that a solicitor or counsel going into such a hearing could be called upon to remove a wig that he or she wears at all public occasions? Should we not, therefore, ask the Minister, and Deputy McCartan, to think again about the use of the word "wig"?

Mr. Cotter

I want to add a few words on the use of wigs and gowns. Maybe we could get over the problem by spelling the word with a capital "W". The wearing of wigs and gowns is a very archaic custom. Most members of the public are, at most, occasional visitors to our courts which are impersonal and frightening places generally speaking. The business of wearing wigs and gowns is a throwback to an earlier age. When I started teaching in the mid-sixties it was the done thing for a teacher to wear a gown. We did not wear the old mortar board in the school I was teaching in but we all wore a gown. In the more informal seventies it became unfashionable quite quickly. One rarely sees teachers at second level wearing a gown and one certainly does not see any of them wearing a gown and mortar board. Times have changed. I wonder whether keeping the wigs and gowns is just continuing a habit or if there is more significance to it than that. It certainly sets people apart.

It is only right that, in the circumstances covered by this legislation, they should be barred because they upset most ordinary people, never mind the immature people referred to in this section. I hope the informality of the age we are living in will drift into the great halls of the Four Courts and other courts and that people will desist from wearing wigs and gowns. It certainly will not disimprove the delivery of justice. It is more fitting, in today's world, that barristers should desist from wearing wigs and gowns.

Mr. O'Dea

I have a certain sympathy with Deputy McCartan's point of view. One beneficial effect of the wearing of wigs in the Four Courts is that they make certain members of the Bar who unfortunately suffer from tonsorial deficiency look much younger. Apart from that I cannot see an practical use that wigs might have.

The effect of the proposal in the legislation is to prohibit the wearing of wigs and gowns while evidence is being given through television link by witnesses in relation to the type of offences covered by Part III. Unless an intermediary is involved, as provided for in section 13, the witness will see on the monitor the lawyer conducting the examination and also the judge if the judge puts any questions. The Deputy's amendment, however, goes much further. It would abolish wigs and gowns for all proceedings for any offence under Part III whether or not television link was employed or the witness was an adult. I am aware from the debate on Second Stage that there is a significant measure of support in the House, and indeed outside it, for the abolition certainly of wigs and perhaps also of gowns in all proceedings and not specifically the cases mentioned in the Bill.

The Fair Trade Commission in its study into restrictive practices in the legal profession was of the view that barristers should no longer wear wigs. A special committee of the Bar Council is reviewing the rules governing court dress having particular regard to the practices in other EC member states. We are making a start here by doing away with the wearing of wigs and gowns in certain cases. On the wider front, my preference is to see the end, certainly, of wigs. In relation to this legislation my preference would be to wait until that special committee of the Bar Council produce their recommendation, and I take this opportunity to say I hope they will do so in the very near future. In relation to the point made by my colleague, Deputy Fitzgerald, on the definition of wigs, I note the legislation does not contain a definition. To prevent the horrendous possibilities envisaged by Deputy Fitzgerald, I will ask the parliamentary draftsman to have a look at that with a view to, in defining "wig", confining it to meaning what we intend it to mean.

Mr. McCartan

I thank the Minister of State for his kindness in admitting a personal view and at the same time protecting the position he holds with regard to the official view. I accept and respect the differences that can often exist. Nevertheless I think the issue should be looked at more closely.

I take the point that we must define the concept of a wig. I do not know what formula could be devised to differentiate between a wig that is worn for natural reasons and one that is worn for judicial court proceedings. Nevertheless it is a fair point.

The purpose of this part of the legislation is to create an environment in which people, who may otherwise be intimidated or inhibited by the court environment, will find it easy to give a full and frank explanation in relation to the circumstances on which they are in a position to give testimony. That is the objective of this part of the legislation and it makes provision for the use of the latest technology of both video and television to attain it. This is an historic innovation. Many of those who have practised in this area never envisaged, even a few years ago, a person giving testimony from a different room and location from the courtroom. This is revolutionary. As a result, quite correctly, this legislation has been recognised as a milestone in the history of the State in relation to legal reform, particularly in the area of criminal evidence. We have not seen legislation which was as significant and as fundamental as this and this is not to overstate its importance, rather it reflects it accurately. This point has been taken up in many of the commentaries made by people outside the House since the Bill was published.

In this context and against that background, the proposal that in the last decade of the 20th century people involved in these proceedings should wear normal working garb is modest in the extreme. It is both sensible and desirable, having regard to the objective of the legislation which is to create an environment in which people will believe that they will be among their peers when giving their testimony. Heretofore people have literally been frightened in the court environment by the presence of people who dress abnormally and act theatrically. I have seen some of the finest advocates that this country ever produced perform in court to remarkable effect and extract a version of an account which suited their argument. All this is very well but it has to be put beside the objective of this part of the legislation which is that we should work to create an environment in which young people can feel relaxed and be encouraged and invited to give a good account, as best they can without the need for theatrical behaviour and intimidation.

Let me say not only as a practitioner but as someone who has given evidence on occasion in criminal trials, that it can be very daunting to walk into a court, given all its splendour. It takes courage and experience to get over this in the first instance. Many people give evidence in our courts on one occasion only and hope they never have to return. By and large, they never do. Therefore we have to take all these factors into account. That is the reason the provision proposed by the Minister of State in the first instance, in relation to a television link, should be extended to include all proceedings in this area. It is equally daunting for an adult as for a young person to cope with this experience.

The Minister of State described it as a start. It is a start but why stop there? Surely, it should be followed through. If it is appropriate to provide a television link it is equally appropriate to make changes in the live courts scene. It is logical to do so. The Minister of State has said the reason he has not gone the full distance, as suggested in amendment No. 60, is that a special committee of the Bar is dealing with this matter. It is the undoubted experience of this House, the Department and the Minister's constituency colleague, Deputy O'Malley, who got a clear message from the Irish Bar when, as Minister for Justice, he met them two decades ago that they are slow to change their rules; do so only rarely, for their reasons and not for ours.

I spoke at length about the Bar during the course of the debate on the Solicitors (Amendment) Bill. The public would be better served by one profession but, having said that, I should say that this is not another attack on my part on the Bar; I would like to see these changes made.

In relation to the reforms introduced in the area of family law during the past two years we did not wait for the conclusions of any special committee. It may well be that the special committee were not sitting at that stage but that in itself is remarkable in that the Irish Bar could not find the time, or did not have the interest, to address the question of their garb and attire which is borrowed directly from the English judicial system. I have made the point before that prior to the foundation of the State the lawyers from the Four Courts manned the people's courts as they were known — the republican courts — around the country and made judicial findings in cases which involved disputes over land and other issues and that in 1922, once the hostilities ceased, they went back to the Four Courts as quickly as they could in this new State where they wore the wigs and gowns which were worn by the previous Administration and operated a court system which mirrored the system operated by the colonial power that they had so honourably and wonderfully overthrown and expelled from this land. It is incredible that ever since we have mimicked the practices and rules of the English court system.

That comment should not be taken as anti-British; in fact, the British are having great difficulty in coming in terms with their own archaic and anachronistic practices. Indeed, the Lord Chancellor was told off by the Bar when he proposed provisions similar to those we have already enshrined in our legislation. As I said, in relation to reforms in the area of family law we did not delay as the matter was too important. The Minister of the day recognised that it was a waste of time to enter negotiations and discussions or to cajole when one came to this conservative body of men and women. Therefore we made provision for this change in the family law area. As a result no wigs or gowns are worn by solicitors or barristers in proceedings in that area.

Equally, if we want quickly to implement the provision proposed by the Minister of State, which is extended in my amendment, we should legislate for it, given that the people are not happy with the court system and, more importantly, to ensure that the purpose and intent of this legislation, which is that we work to create an environment in which the witness will find it easy to give testimony in the court, is achieved sooner rather than later. Therefore I am pressing the Minister of State on this matter. A more direct and active response is needed from him.

Mr. Flanagan

In deference to those Deputies who would like to see as much progress as possible made on the amendments between now and 10.30 p.m., I would like to avail of this opportunity to support this worthwhile amendment. I am surprised that the Minister of State has not been more forthcoming in support of the amendment. I cannot understand why he has not accepted the amendment. Neither can I understand the reason he can defend the archaic practice within our legal system of wearing wigs and gowns.

Mr. O'Dea

The Deputy was not listening to me.

Mr. Flanagan

We know the reasons for bringing this practice into our legal system but it certainly does not hold water as far as sound arguments are concerned. It ensures that a profession operating a closed shop will remain aloof and distinct from the very people it sets out to help and support through the legal process.

A person came to me recently at a constituency clinic to express serious concern at his court settlement following a personal injury case, and he wanted to know what had happened. When I went through the various stages with him he informed me that the settlement had been made by someone whose name he did not know. He remembered that it was "some guy with a wig". This is what is happening in our legal system at present. It is not good enough for the Minister to suggest that he is awaiting the outcome of a report from a special committee of the Bar Council. Does the Minister seriously expect the Bar Council to put forward a proposal to do away with the process which helps them to become divorced from reality and the community, the insulation, by means of a wig and gown, which introduces, a form of intimidation into the Law Library and the High Court system? It is most offputting for members of the community. As was rightly stated, perhaps only once or twice in their life people experience at firsthand the process of the legal system.

This amendment refers to the legislation with which we are dealing, with particular reference to Part III. I agree with Deputy McCartan that it is time to change our legislation in regard to the justice system and to ensure that the ritual trappings of an ancient regime are not part and parcel of the administration of justice. I hope that the Minister will be forthcoming in this regard and I warn him — perhaps he does not need to be warned — against waiting for a report from the Bar Council. Perhaps he expects that the Bar Council will decide to divest themselves of wigs and gowns. If that is how they think, the process would have started already. This applies particularly to young barristers who come up through the system and who look forward to the day when they can put on the wig which is whiter than the grey horse hair of their senior peers. It is outrageous that, at the end of this century, people should be subjected to such a ritual within our legal system. Wigs and gowns erect barriers between the legal profession and members of the public, just to preserve the club atmosphere within the Law Library of the Four Courts.

A similar amendment was dealt with quite successfully in the Judicial (Separation and Family Law) Reform Act, 1989. If I remember correctly, the then Minister for Justice felt that it was just a start and that further progress could be made. This amendment is timely and the Minister should give serious consideration to accepting it.

Mr. O'Shea

I support Deputy McCartan's amendment because wigs and gowns are an anachronism which, as he pointed out, go back to a time when this country was oppressed. He got to the kernel of the issue when he said that the Minister was waiting for a sub-committee of the Bar Council to report to him. In this House we do not represent the Bar Council, we represent the people. We should take decisions based on the interests of people; wigs and gowns can be very intimidating to people, even in civil cases. Deputy Flanagan mentioned a court settlement in a personal injuries claim. Many people who come to the High Court in Dublin from the country see barristers in wigs and gowns, which is very offputting because they are concerned about the future and about the compensation they will get as a result of an accident. Wigs and gowns should be taken out of our judicial system. In highly sensitive cases, dealing with people who have been through a terrible trauma in many instances, we should project kindness, concern and sensitivity.

It is not good enough for the Minister to say he will wait for the report of the subcommittee of the Bar Council, because they look after their own interests while we are here to look after the interests of the people. There is a strong consensus in the House — and indeed the Minister is part of this consensus — that wigs and gowns should go. Why not do it now? In terms of justice and its administration there is a feeling among many people that acquiring justice is intimidating. If we eliminate wigs and gowns completely in cases which would arise under section 3 of this Bill, it would be a fine gesture which would make law — and justice under the law — more inviting. I earnestly request the Minister to accept the amendment tabled by Deputy McCartan.

Mr. O'Dea

Deputy O'Shea said that Members of this House had been elected to represent all the people, not just the Bar Council. I am well aware of that, I have been here a lot longer than him——

Mr. Kavanagh

Not that much longer.

Mr. O'Dea

I have been a Member of this House for five or six years. If I were to take the first preference votes I got from barristers in the last general election off the 10,000 or so votes received, I would not have noticed the difference. I would still have been elected on the same count. I do not represent the Bar Council, I represent the people. I have been doing so quite successfully in my own constituency for many years and I will continue to do so without any assistance from the Labour Party or anybody else.

I want to put the amendment in context. Deputy Flanagan said that I was defending the restrictive practices of the Bar Council. I do not know where he has been for the last couple of hours. I did not hear myself defending the Bar Council; perhaps I did so unknowingly. I will accept any valid arguments but please do not put words in my mouth.

Deputy McCartan rightly said that the idea of Part III of this legislation is to make the courts less intimidating and more encouraging in relation to witnesses. The idea behind Part III is to protect certain vulnerable witnesses. That is why we are doing two things for particularly vulnerable witnesses in certain categories of cases. We are allowing them — when the judge decrees it and, as I said, I hope that will be the norm — to give evidence through a television link outside the normal court-room atmosphere and people whom they see on the monitor will not be wearing these anachronistic wigs and gowns. The absence of wigs and gowns is confined to those situations because Part III is designed to protect the small percentage of witnesses who are under 17 years of age in cases involving particular types of offences.

I have put on record my views in relation to the wearing of wigs and gowns generally. I should be happy to repeat them if anybody wished me to do so. I am against them. I am against them for all the reasons that have been stated and one or two others. Deputy McCartan mentioned theatrical performances he had seen. I have witnessed them over the years. I must point out that whether or not lawyers were allowed to wear wigs and gowns those theatrical performances would continue; there are those who would be well capable of giving such theatrical performances and getting some very peculiar verdicts. That happens in the American system, where wigs and gowns are not worn.

I have explained that the legislation is cast as it is in relation to the non-wearing of wigs and gowns because Part III is designed to protect a particular category of witness in a certain situation. I should like to put it to Deputy McCartan, not in an adversarial way but by way of debate, that I recognise one objection that would be raised to this amendment. If the amendment were accepted then for a small percentage of criminal cases — taking into account the number of cases coming before our courts, covering both civil and criminal law cases — adult witnesses, those over 17 years of age, would not have to endure the trauma of being questioned or facing lawyers who are wearing wigs and gowns and a judge wearing a wig and gown. Where would that leave the witnesses of the other 99 per cent or so of court cases? Surely that would be a position of reverse discrimination. As I said, the measure falls within Part III because Part III is designed to protect in every possible way a certain category of witness. If we were to extend the non-wearing of wigs and gowns, surely it would be better to do that in all legal cases to be heard and not only in relation to a small percentage of criminal cases. It would be preferable not to leave the rest of criminal and civil cases untouched. Acceptance of the amendment would create a discriminatory situation for witnesses in those cases not covered under Part III. I take on board the arguments made by Deputy McCartan.

One thing did occur to me during the debate. I am a very trusting person and if the Bar Council tell me they are considering the issue seriously and will put forward serious proposals, I am inclined to take them at their word. It has been pointed out to me, however, by others who are more suspicious than me that this may simply be a stalling device. Perhaps if we were to create a discriminatory situation against the vast majority of litigants the Bar Council might be encouraged to move more quickly. The decision is not mine, as Deputies will understand, and at this stage all I can undertake to do is discuss the issue with the Minister for Justice, who will take the decision in this matter. I shall put to him the arguments that have been advanced tonight. Deputy McCartan will be free to resubmit his amendment on Report Stage, when the matter has been considered. Perhaps that is a useful suggestion. The only guarantee I can give tonight is that I will discuss the matter with the Minister.

Mr. McCartan

The Minister of State has again been reasonable in his approach and I do not intend to haul him over the coals on this issue. Equally, I do not wish to delay the House unduly on an issue that seems to have got many of us wound up and animated, that of the wearing of wigs and gowns. The Minister of State should take some indicator of the feeling that the House to some degree reflects a wider view on the issue.

I wish to respond to the Minister in two regards. First, Part III deals with specific types of offences: sexual offences, offences involving violence or the threat of violence to a person and related offences to those offences. Basically, we are dealing with sexual offences and or violence. In relation to those cases the victim will by and large be someone who is vulnerable because a person will not be sexually abused or assaulted or attacked unless he or she is of a vulnerable disposition. Those victims will be women; if not women, they will be young boys or young girls. The Minister has to realise that the argument with regard to age is not really relevant. By and large all witnesses involved in such proceedings will be timid, frightened, abused and very much broken even before they get to court. It is my contention that a woman who has been abused is as much entitled to the considerations of this House as a young person who is perhaps equally intimidated in the environment in which the proceedings take place. I do not feel that the argument of age holds much strength. I realise that section 17 is designed to deal with those of 17 years and under but the considerations we need to have for that category as witnesses apply equally to the category of adult witness who will by and large be involved in such proceedings. They will be women who have been badly intimidated, bruised and injured.

Mr. O'Dea

But the witness and the victim do not have to be one and the same person.

Mr. McCartan

They do not. However, the primary witness in all of these cases, before any ingredient can be laid, is the victim. The recent case in Waterford comes to mind as a good example. The primary witness must go into the witness box before any case is established and before one could even talk about witnesses. I accept the Minister's point, but I consider that the argument exists.

Secondly, in relation to the point made about the number of cases involved comprising a very small percentage of the total, I draw attention to the fact that we are not dictating to the Bar in all cases. The Minister has made my argument for me; I had intended to come back to this aspect. In the environment of the vulnerable witness to which I have referred my amendment would create a rule that would force the Bar to come to their senses more generally. Surely those involved would recognise that the Legislature had told them that in a certain segment of criminal cases they should not go to court dressed in the old attire and that, rather than have barristers look up their briefs to determine whether a wig and gown case was involved, it would be sensible to follow the principle through. The reason the principle has not been followed through in relation to previous legislation is that provision was also made for separate courts. In Dublin at least the family law courts sit in a separate building away from other court dealings. A separate legal practice has developed there. The Minister will be aware that in the provincial courts separate days are reserved for dealing with family law cases and practitioners go to a different assembly. If it came to wigs and gowns having to be taken off and put on again, I am of the view that the profession would decide to be sensible in the matter. I accept that to some degree I am only dealing with a small percentage of cases but my amendment would be the push necessary to achieve the ultimate objective, which certainly seems to be desired by Members. I respect the Minister's personal position. He was prepared to express it which is not often a position that emanates from that office. A Minister can very rarely speak his or her own mind, particularly when trying to champion a Bill. The discussion on the amendment has been useful, and because I consider progress will be made on the issue on Report Stage, I shall withdraw my amendment for the time being.

Amendment, by leave, withdrawn.

An Ceann Comhairle

We now come to amendment No. 34 (a), in the name of the Minister, which has been discussed with amendment No. 34.

Mr. McCartan

In the sense of good will that the Minister spoke about, I challenge him to leave his amendment over to Report Stage also until the issue has been examined in the broader sense. With this amendment the Minister is narrowing the flexibility since he is saying that, where there is an intermediary involved, the wigs and gowns should be worn again. Perhaps it can be left to Report Stage when we will re-examine the matter.

An Ceann Comhairle

It has been discussed. It is up to the Minister to formally move the amendment now if he so desires.

Mr. O'Dea

I will accept that suggestion of Deputy McCartan. As the legislation stands it is quite ridiculous that the provision applies to cases in which an intermediary is being used, in which cases the witness will not see counsel or the judge. Nevertheless, if Deputy McCartan is prepared to withhold his amendment, I do not propose to move mine at this stage.

Amendment No. 34a not moved.

Section 12 agreed to.

SECTION 13.

An Ceann Comhairle

Amendment No. 35 is in the name of Deputy McCartan. Amendment No. 36 is related and I suggest both amendments be discussed together, if that is agreeable. Agreed.

Mr. McCartan

I move amendment No. 35:

In page 10, subsection (1), line 31, after "conducted." to insert "‘Conduct' in this context shall not entitle the intermediary to interject and/or convey the replies of the witness to or for the judge and the jury in any circumstances.".

This amendment is designed to endeavour to address somewhat further the functions of the intermediary in the proceedings. I spoke with some degree of hyperbole earlier about the remarkable, revolutionary concepts being introduced into our evidentiary laws and the significance of this Bill in relation thereto. Certainly one of the more revolutionary and unusual aspects of this Bill is the concept of the introduction of an intermediary, if you like, someone who will act as conveyor and interpreter of a question to a young witness and who may or may not have some function in dealing with the response of the witness. These matters need to be teased out somewhat further so that those who implement the provisions of this Bill will understand exactly what are the functions, responsibilities and indeed parameters within which an intermediary can operate. I have said that the provisions of this Bill are revolutionary. They are not entirely so because, heretofore, when deaf and mute witnesses gave testimony, people representing the National Association of the Deaf and other agencies would come to court and translate the words for the examiner by way of sign language, sound or touch, by applying the hand of the person to the voice box or throat of the intermediary speaking, or, as has been the case, an interpreter may translate the language of the court into the language of a foreigner brought before our courts. Therefore, the concept of an intermediary is not new but is certainly new in these circumstances, in that it recognises not so much a physical deformity or an infirmity as affecting language, but rather inability of a witness due to youthfulness or other difficulties. Specifically the provisions of this Bill endeavour to deal with witnesses in, say, an incest case who inevitably will have difficulty in using language necessary to convey to the court exactly what is intended.

It seems to me that the concept of the intermediary in section 13 is that someone will be involved in a very active way in the conduct of the proceedings. We should remember that, unfortunately, to some extent we are still dealing with adversarial-type proceedings, when points can be won or lost depending on how quickly and with what impact a question is delivered and/or how quickly and with what conviction an answer is returned. Therefore, the concept of an intermediary must be examined to ensure that he does not become an undue buffer or cushion against the line or directness of the questioning of the examiner. Conversely, if an intermediary is deemed to be someone who conveys the language or words of a witness to the examiner, the judge or jury, it is important that the intermediary is not given any opportunity to reinterpret, soften or redirect the purport of that response.

On Second Stage I pointed out to the Minister a difference of wording between the explanatory memorandum which, at paragraph 24, dealing with section 13 says that an intermediary would be appointed to convey questions to a witness under age 17 if the court is satisfied that it is in the interests of justice to do so. The explanatory memorandum is very specific in stipulating that the function of an intermediary is merely to convey the question and ensure that the witness understands what he or she is being asked. In my view the Bill is somewhat wider in that it says that "examination-in-chief, cross-examination or re-examination, or any part thereof, be conducted through an intermediary". That different wording leaves open the possibility that conducting means conducting the questioning to and from the witness. In other words, there is the possibility that an intermediary would have the function of conveying back the answer. That needs to be clarified. That is why I have suggested a definition of "conduct" in my amendment which reads:

In page 10, subsection (1), line 31, after "conducted." to insert "‘Conduct' in this context shall not entitle the intermediary to interject and/or convey the replies of the witness to or for the judge and the jury in any circumstances."

Therefore I am making it absolutely mandatory that the concept of "conduct" included in section 13 be defined to state the explicit meaning contained in the explanatory memorandum, namely, that the function of the intermediary is solely to ensure that the question posed by the examiner is understood by the witness and, thereafter, it is a matter for the witness to reply. On balance, that is as much as we can hope to achieve by the deployment of such a person within the courts system. Otherwise we would be entering into the difficulties of saying that the testimony ultimately heard by the judge or jury might not be the testimony of the witness himself or herself. For that reason it is important to clarify this matter.

Deputy Shatter has tabled a further amendment as an alternative. I have no difficulty with his amendment in so far as it argues that an intermediary shall not deviate from the phraseology of the question asked nor interpose any comment on such question nor on the reply given. I think Deputy Shatter supposes that an intermediary will have no function in picking up the reply and if you like, translating or conveying it back to the judge or jury, but I do not think that is absolutely clear.

Mr. Cotter

The intention in amendments Nos. 35 and 36 would be somewhat similar, that is to remove some of the uncertainty about the use of an intermediary per se which concerns people. For example, people are concerned about the definition of the function of the intermediary or what they would be involved in. For example, the use of the words “examination-in-chief, cross-examination or re-examination, or any part thereof, be conducted through an intermediary” would suggest that the questioning would be put to the person giving evidence through the intermediary, not directly, and that equally the reply would be conveyed through the intermediary. I accept that it will be left to the discretion of the court to decide whether an intermediary is required. If there is some difficulty the court may decide not to use an intermediary. However, an intermediary may have to be used in certain cases in the interests of justice.

It is not at all clear how an intermediary should operate and in what circumstances a court may decide whether or not to use an intermediary. This is why Deputy Shatter put down amendment No. 36 which proposes that "an intermediary shall ask the witness any question asked by the judge, barrister or solicitor concerned in the examination of the witness and shall not deviate from the phraseology of the question asked nor interpose any comment on such question nor on the reply given". Deputy McCartan proposes that an intermediary shall not be entitled to "interject and/or convey the replies of the witness to or from the judge and the jury in any circumstances". There is a desire to tighten up the section so that people will know what is expected of them and courts will interpret the provisions in the same way; in other words, ensure that there is some sort of unanimity in the application of the provisions of section 10.

I know that some of the purists in the law area are concerned about the use of an intermediary. They think that such a system is unworkable and that an intermediary could influence the decision made in a case which would not otherwise be reached if there was no intermediary. I sympathise with those people: purists have to exist and they must try to maintain the very clinical nature of the giving and taking of evidence. They believe that the clinical nature of the giving and taking of evidence will be breached if an intermediary is used and that the accused might be put at a disadvantage. Many people have expressed their concern to me about the use of an intermediary. It is very important that we examine in great detail how this system will work. I am not at all clear as to how an intermediary will carry out his functions.

When I looked at the section first I thought an intermediary was a nanny who would put a child at ease and adopt a playful manner. I was rather concerned that this would be the case. I am not sure that an intermediary could act in such a fashion as this is a very serious matter and the interests of the accused have to be protected also. I am interested in hearing the Minister's views on how he visualises this system operating and the type of person an intermediary has to be. Will he have to be good with children and able to put them at ease? Will he have to be highly qualified in court procedures and in the proper giving and taking of evidence? We expressed concern about this point on Second Stage. We got no clear indication at any time during the debate that people fully understood or appreciated the provision in this section and how the system would work. I look forward with interest to hearing the Minister's comments on amendments No. 35 and 36.

Mr. O'Dea

I am as concerned as anyone in this House to ensure that this very unusual form of examination of witnesses by an intermediary does not give rise to any injustice or is not interpreted in any way other than the way in which we intend it to be interpreted. Deputy McCartan seeks to ensure that an intermediary will not interject and or convey the replies of the witness to those in the courtroom. I agree with him that that would be objectionable but such conduct is not permitted by this section as it stands. The section provides for the examination by counsel or by the accused if he is not legally represented, to be conducted through an intermediary. The word "examination" can only refer to the actual questioning of the witness. I do not think that terminology, even if read in conjunction with the word "conduct", would envisage the intermediary conveying the witness's replies to those in the courtroom. Even if Deputies do not accept that, there is a second point I can make in this respect.

Under the proposed arrangements, in cases where an intermediary is used the witness will not see or hear the questioner. The questions will be relayed to the witness by the intermediary who will be in audio contact with the questioner. The questioner and the other persons present in the courtroom will hear the questions as they are being put to the witness and also the replies of the witness. At all times those in the courtroom will be able to see and hear the witness and hear the intermediary. Moreover, the judge will have a separate monitor covering the witness room. In other words, it is the intention of the legislation that the intermediary will be merely a conduit to convey to the witness the questions asked by counsel or the accused if he is not legally represented. Everything said in the witness room by the witness and the intermediary will be heard in the courtroom. Therefore, there would be no point in the intermediary repeating the witness's replies; the replies will be heard clearly in the courtroom. No doubt Deputy McCartan will want to comment on that point. If he has any difficulty with it, I have no objection to looking at it.

Deputy Shatter's amendment causes me much more difficulty because it seeks to go much further in that it would also forbid the intermediary from deviating from the phraseology of the question asked. I do not think this would be acceptable because it would be contrary to the whole purpose of having an intermediary. One of the main purposes of having an intermediary is to maintain ease of communication with the witness and, where appropriate, to render the question in a form in which it will be intelligible to the witness at his or her stage of development. An example quoted to me is that counsel might first ask the child his or her name and address. A very young child may think that the word "address" has something to do with a dress. Under the section as it stands, the intermediary could rephrase the question and ask the child where he or she lived.

I accept that a counsel experienced in these matters would probably frame all questions in a form which could be relayed without any need for change, but that will not always apply. If the intermediary has not paraphrased a question sufficiently accurately that can be explained privately by counsel to the intermediary over the audio link and a revised question substituted. Counsel will at all times be in control of the questioning and the judge is there to see that the proper standards of fairness are maintained.

With regard to Deputy McCartan's amendment, it is a matter of interpreting the English language. I do not think the phraseology used in the section contemplates or can be interpreted to mean that the intermediary can start interjecting, interposing and replying on behalf of the witness. Even if he did this, there would not be any point in it because the judge, jury and counsel can see the proceedings on screen. With regard to Deputy Shatter's amendment, I cannot accept the proposal that the intermediary should be prevented from rephrasing a question. As I said, one of the main purposes of the legislation is that the intermediary maintains ease of communication with the child witness. This would involve explaining the question asked by counsel. As I said earlier, the entire proceedings will be clearly visable to all the people concerned.

Mr. McCartan

It is vital that we discuss this matter in more detail. If there is such clarity about matters why is the language in the Bill different from that in the explanatory memorandum?

Mr. O'Dea

The explanatory memorandum is there to explain the Bill in simpler terms.

Mr. McCartan

That is the point I am making; the explanatory memorandum is more precise in its language. The intermediary is there to convey questions to a witness. It could not be clearer than that. The Minister suggests that the concept of an examination is the asking of the question only. If he asks the thousands of young people who will be sitting the leaving certificate examination what they understand by the concept of an examination, they will tell him that a big part is the question but equally important is the answer. That may seem a facetious and frivolous illustration of my point. However, the word "examination" encompasses not only the question but also the answer.

The Minister has said that the use of the word "examination" in the Bill conveys only one concept, that is the question in cross-examination or re-examination. I humbly suggest that that is equally capable of being interpreted as including the answers to be sought. That is why I say that the wording is imprecise and unclear and should be clarified in terms of the simple exposition given in the explanatory memorandum. I agree with the Minister that the function of the intermediary should be to convey the question, but I suggest that the phraseology allows also for the intermediary to convey back the answer.

In my amendment I propose ruling out the concept of interjecting. It is inevitable in this scenario that witnesses will not necessarily be reluctant but hesitant because they are in a separate room, away from the court and because of their age and the type of offence involved. I agree with the Minister in his response to Deputy Shatter's amendment in that the intermediary is there to translate the formal courtroom language into language that is intelligible to the person who is being questioned. It is a helping process to coax the answer by using professional techniques as referred to under subsection (2). In practice the case may arise where the witness is on the point of giving an answer but if he has difficulty expressing himself there may be a tendency for the intermediary to draw the answer from him. That is why I suggest that interjection be avoided. It is important to lay down clearly that while the intermediary, using professional etiquette and technique, is there to assist and in some respects cajole a witness to give an answer he or she might not otherwise be able to give, no prompting or assisting the witness should allowed once the question has been conveyed to him or her.

We recognise that we are dealing with traumatic offences, such as sexual assault, and the witnesses will be vulnerable, reluctant and hesitant. We are providing that their environment be witness-friendly, out of the courtroom, and that technology by way of a television link be used to convey their testimony into the courtroom. The whole idea is to assist the witness when he or she is giving his or her testimony. We are now introducing an intermediary who will convey questions in an understandable way because we recognise that formal court language and forensic questioning often confuse, confound and intimidate the witness.

An intermediary may well be a person who may not have had direct involvement with a particular witness but may have had experience of people in this kind of situation and knows that he will have to cajole and coax in order to build up the confidence of the witness. Inevitably — I have seen this in practice — when people in the witness box are trying to relate a traumatic experience they find it almost impossible to put words on what they want to say. It is at that crucial point that a woman will break down in tears and say that she needs time to compose herself. For the first time since the event the person is being asked to tell in public the horrendous things that happened to him or her, whether it be abuse, assault or whatever.

Because of the way this section is drafted, a judge would not be blamed for construing it in the context of assisting, cajoling and assuring the witness. What is wrong with the suggestion of allowing the intermediary to not only convey the question to the witness but also to help the witness in delivering the response? A court may feel that that is not entirely unreasonable given the way in which the section is so broadly drafted. I have difficulty with the section but I may be wrong, as I often am. I am suggesting, for the sake of clarity, that we proceed with the language used in the explanatory memorandum.

I tabled the amendment to ensure, first, that the intermediary process is a one way process and, second, that the intermediary is not allowed to interject. I am not concerned that the intermediary would try to prevent the barrister barracking the witness or prevent the witness from answering if he realises that he or she is going to give an answer that is not in the full interests of the prosecution. I want to ensure that interjections of the cajoling kind which may be of direct assistance to the witness after the question has been conveyed are prevented. I think the House is agreed that once the question has been conveyed the witness should deliver the answer by his or her own resources.

Mr. Cotter

We still have not come to grips with the meaning of "intermediary". Deputy McCartan has given a few different interpretations. The Minister has not convinced me that he knows what this is all about. I have not convinced myself that I know what it is all about. This procedure has been put in place to protect people who are immature and who may be emotionally disturbed as a result of certain acts perpetrated on them. We will put a person in a separate room where he will not see the accused, for example, in order to put him at ease, and an intermediary is to be there, but we still have not clarified what that intermediary will do. Is it a nanny type person who will succeed in putting the person at ease? We have not focused on the fact that a person knows he is on closed circuit television. When the television cameras first came into this House many people became very uptight because they knew they were on camera. They tended to act differently because they knew people could see them. A child with the use of reason knows what a television is like and will know that people can see what is on it and will feel under pressure. I can see the need for an intermediary provided we can define what that intermediary will do.

The only good thing about section 13 is the discretion given to the court to decide whether it will use this intermediary. That discretion is necessary given that we are so incoherent about what the intermediary is supposed to do. I cannot see the court allowing the sort of thing that Deputy McCartan suggested might evolve. I cannot see the defence being happy with a sort of cajoling nanny being allowed to drag various feelings into phrases from the person who is giving evidence. I do not see any great difficulty with Deputy Shatter's amendment. We are talking here about intelligent people who are working every day with language and most of them have children or had children who are now grown up. I cannot see any great difficulty with the questioning. If one asks a person about an address and she starts talking about a frock, one can rephrase the question. Why should the intermediary be the one to decide what the judge means or what the prosecution means when they are asking questions? In this the Minister is allowing the intermediary to make decisions as to what language means. That would not be acceptable to the person who asked the question. The Minister said that the intermediary would be in a position in which he could change the words that were used to convey the meaning. That means that the intermediary would make a judgment as to what is really meant. None of us is happy with the lack of clarity here. We can talk about this until the cows come home and we will still have a difficulty. The clinical nature of this whole business is definitely in danger of breaking down if we cannot come out of this room with a fairly clear picture of what we envisage happening under these circumstances.

If section 13 is open to all sorts of interpretations, then all sorts of things will happen under it. I am not at all happy that we know what will happen as a result of section 13. I would like to hear the Minister again in the light of what I have said about the intermediary being put in a judgmental role. If this is allowed, what limits are set to it? The example the Minister gave is quite trivial. The Minister referred to the use of the word "address" and its interpretation as "a dress". A person of any age could decide that a person was talking about a dress rather than where one lived, but if we allow the intermediary to take on that kind of role, where does it end? Can we allow the intermediary to cajole, to joke with and play with the person giving evidence in order to elicit a response? Is that fair to the accused? Somebody who is very skilled could elicit a particular kind of response. I am worried that unless we get an understanding of what will happen, this section will be inoperable. I am not happy that we should leave section 13 yet. We should spend quite some time talking about it before we leave it.

An Leas-Cheann Comhairle

Whatever about section 13 and whatever about the cows coming home, the Deputy will appreciate these two amendments have been fairly well milked.

Mr. Cotter

I do not think so, yet.

An Leas-Cheann Comhairle

There has been a fair amount of repetition. However I do not want to pre-empt any comment.

Mr. O'Shea

I have some difficulty with the selection of the word "intermediary" because I am not sure that it conveys what the Minister intends. The concise Oxford dictionary says that an intermediary is an immediate person or thing, a mediator. I am sure the Minister does not intend that the intermediary would be a mediator in any sense. Between whom would he be mediating? Roget's Thesaurus comes up with some rather more bizarre descriptions, one like, medium or middle man, deputy, retailer, broker, go-between and so on. I am not frivolous here. The idea behind the mediator is to make it easier for the witness who has been exposed to trauma and, indeed, to some horrible actions, to give precise and concise information and evidence. The section states that an intermediary referred to in subsection (1) shall be appointed by the court and shall be a person who in its opinion is competent to act as such.

As a teacher, with experience in the language level of children and how they can understand questions and how they should be put, I firmly believe that we need to give a great deal of thought to the qualifications of such a person. As subsection (2) was constructed, it could lead to what I might term "ad hockery", and to inconsistency. In many ways it may not contribute to what the Minister seeks to achieve. The word needs to be looked at in terms of its dictionary definition. I have not a more precise term to convey what the Minister means or to define what the Labour Party believe to be a very important concept. The section is much too woolly and needs to be tightened. A clear definition of the competence, qualifications and experience of the person involved should be provided in the section.

Mr. Enright

The section is unsatisfactory. Either amendment would go some way towards tightening it up and eliminating the problem. The provision that the intermediary shall not deviate from the phraseology of the question is very important. I can foresee difficulties if the intermediary is allowed to vary the question. A person on conviction could have good grounds for appeal in such circumstances. Many difficulties could ensue. Cases are sometimes dismissed for very simple reasons. An example is a case where a juror spoke to an accused in a very brief aside. The accused was convicted of murder but later a retrial was ordered on that point. Where a specific question is asked by a prosecuting barrister and that question is then changed, there is a change of emphasis in what is occurring. There is a groundswell of support for the section but with the qualifications and amendments as suggested.

Perhaps the Minister will confirm whether the witness will be able to see exactly what is taking place in the courtroom. Will he hear only the intermediary asking the question? The judge, barristers and solicitors in the courtroom will see the witness and what is taking place in the courtroom. The intermediary will be in the courtroom, subject to the control of the judge. Who will be with the witness? If the witness is on his own he will not know exactly what is going on. He could feel very remote and isolated, in a very lonely position. This could cause considerable problems. Perhaps the Minister will elaborate on how he sees procedures developing.

Mr. Kavanagh

Everybody wants to achieve success in this area. We want the legislation to be acceptable and able to stand up to pressure from legal people such as the very able colleague behind us. The word "intermediary" causes us a problem on this side of the House. Will there be a professional group of people on whom the court can call who would have the confidence of the representatives of the witness in a case like this? When there was difficulties in labour relations, one can ask for the assistance of a particular rights commissioner in whom people have confidence. Is this the type of individual who might perform this task, with the confidence of all involved in the case?

Mr. O'Dea

Deputy Cotter said he is not convinced that I know what I am talking about. He has certainly convinced me that he does not. I am sorry to be uncharitable but that is my firm conviction. The intermediary has to be appointed by the court. Section 13 (2) states that the intermediary shall be appointed by the court and shall be a person who, in its opinion, is competent to act as such. That relates to Deputy Cotter's inquiry as to whether the intermediary would be somebody who would cajole, play with, encourage and winkle information from the child witness. The barrister will be asking the questions and the intermediary will be the conduit through whom the questions will be put. In some cases the questions will be rephrased by the intermediary to make them clearer to the witness. The barrister will be conducting the questioning. The intermediary will be linked by audio link to the barrister and he will put the questions to the child witness.

Deputy O`Shea quoted some dictionary definitions which I found quite amusing. I do not belittle the Deputy's point but we cannot go down the road of looking up dictionary definitions in relation to every section in legislation. Deputy Enright mentioned the question of a retrial if the phraseology is changed in some way. I do not exactly understand the point. If somebody who is guilty is convicted because the intermediary happens to phrase the prosecution's questions better than the prosecuting counsel, I will not object.

Mr. Cotter

They might not be phrased better but phrased differently.

Mr. O'Dea

The intermediary is a mere conduit through whom the examination will be conducted. Deputy Enright asked how the procedure will operate in practice and where the intermediary will be. He also asked what the witness will see. That is a valid point.

The intermediary will be sitting beside the witness in the separate room and the judge, counsel etc. will not be visible to the witness. There are very good reasons for that. The whole idea of the intermediary system is to separate the child witness from the accused so that not only does the child not have to go through the trauma of actual cross-examination but he does not have to see the person he is accusing of this particularly horrific offence.

Deputy Kavanagh raised a valid point regarding qualifications on which a subsequent amendment has been tabled. I should like to read a statement from the departmental note into the record which deals with the point made by the Deputy. The Law Reform Commission expressed the view that intermediaries 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.

Mr. McCartan

Child language or sign language?

Mr. O'Dea

Child language. That would be the ideal situation but I think the Bill is not the place to specify particular qualifications, training or experience. We will come to that later because an amendment has been tabled to that effect.

Section 13 leaves it to the court to appoint a person who, in its opinion, is competent to act as an intermediary. The Department of Justice, in conjunction with the prosecution agencies, will give every assistance to the court in this respect. Probably the most important qualification is the possession of a friendly personality and an ability to get along with children and win their confidence and trust. Experience of dealing with children and a qualification in child psychology would, of course, be a help though it is not essential. Also the intermediary would need to be familiar with basic court procedure. The intermediary, in common with others involved in the trial, the judge, counsel etc. would have to become familiar with the operation of the technical facilities, that is sine qua non.

Any difficulties about the position of an intermediary should not be exaggerated. As stated, he or she will act simply as a conduit just as an interpreter does, and nobody has raised any difficulties about interpreters interpreting questions and putting them to witnesses. That happens all the time.

Mr. McCartan

An interpreter conveys to and from the witness.

Mr. O'Dea

I am coming to the Deputy's point. I had not forgotten it. Of course, it will interrupt the flow of the cross examiner's questions but that is not a serious objection. It will be of considerable assistance where the child is at such a stage of development that apparently simple questions might be confusing.

Deputy Kavanagh asked whether a panel of intermediaries would be appointed. As the appointment of intermediaries is in the hands of a trial judge, it is not possible to say at present what procedures will be adopted — we are only at the infancy stage, no pun intended. However, it does seem likely, and it is my wish, that a panel of suitable persons will be compiled. Certainly, and I can give this assurance to the House, the Department will give whatever help is necessary in this respect.

In regard to the question about phraseology, if I were to accept Deputy Shatter's amendment I might as well withdraw the section dealing with intermediaries in its entirety despite the support it has got. The intermediary must be in a position to relate to the child and if that means changing the phraseology 'of the technical questioning, so be it. Deputy Cotter asked whether the intermediary can set himself up in a judgmental fashion and conduct the examination himself regardless of what counsel asks him. That is an absolutely ludicrous situation.

Mr. Cotter

That is not what I said.

Mr. O'Dea

The Deputy is on record and I will quote it back to him. The fact is that the barrister, or the solicitor as the case may be, is the person who puts the questions. He asks the intermediary to ask the witness such-and-such a question. If the intermediary asks something else the barrister can say to him and everybody in the court can hear it —"that is not what I asked you to ask, I asked you to ask him this". That is the reality of the situation and that is how the system will work. I could not even undertake to consider Deputy Shatter's amendment. I do not want to divide the House but I would be misleading Deputies if I said I was prepared to consider Deputy Shatter's amendment. However, I take on board the point made by Deputy McCartan. I still hold to my view that examination in the educational context is not the same as examination in the court context. Nevertheless, I have been reading the explanatory memorandum and I take the Deputy's point that the phraseology in the explanatory memorandum, or something approximating to it, probably conveys more clearly the Minister's intention and that of the draftsman. I will undertake to examine that point. That is a fair point in view of the fact that there is such a fundamental change in the law of evidence, albeit in a small number of cases, but it is better that we get it right on this occasion. I cannot accept amendment No. 36 in the name of Deputy Shatter because it would involve changing the whole nature of the intermediary system and destroying the effectiveness of the intermediary.

Mr. McCartan

The Minister has usefully responded to the debate at least on amendment No. 35. I am inclined to agree with his view regarding the first part of Deputy Shatter's amendment. If he were to accept that, it would make a nonsense of the concept of an intermediary. I welcome the suggestion that we will look again at this issue on Report Stage. In commenting on section 13 the law society state that the committee are not convinced of the need for an intermediary — I disagree with the society on that, in fact I disagree with most of what is contained in their submission. Welcome though it is that they did respond, they seem to have thrown out every new concept proposed in the Bill for all the old traditional reasons. They go on to say: "nor is it clear what functions such a person should perform". To that extent I think they are right. To the extent that it is an entirely new concept in the area we are dealing with, there is a need for guidelines to be drawn up by the Department for the assistance of judges who ultimately will be conducting this. It would be a necessary aid because there is so much new work to be done, new technologies to be employed and new procedures to be got around. The submission goes on to state: "if the witness is not capable of giving evidence, except through an intermediary, this may simply suggest that such evidence is not sufficiently coherent or reliable to found a conviction".

While the society said earlier they are not clear about what functions the intermediary should perform, in their later language they interpret it to mean, potentially, that the witness will be giving evidence through the intermediary. That is symptomatic of the troubles of interpretation that will arise. The society are taking the view that it is conceived, under the section as they read it, that the witness will be giving the evidence through the intermediary. It illustrates the point I am making, that there is much unclear thinking in regard to this section of the Bill.

This debate has been very useful. I hope nothing any of us have said in regard to this section and these amendments takes away from our support for the concept, because the idea of an intermediary is important. In terms of help and assistance one of the universal features you will also experience in these courts is that a witness, particularly a young witness, whispers. Often they are shy, they are not sure or they do not want to tell the world and they whisper their answers. Unless we tell intermediaries that they cannot interject to amplify a reply by repeating it, on behalf of the witness, there will be difficulties. We must be precise. If the wording of the explanatory memorandum is imported into the Bill I shall be happy to withdraw any suggested amendment in this area.

Mr. Enright

We will not be opposing the amendment at this stage. We will be considering it for Report Stage. Perhaps Deputy Shatter's amendment could be clarified to say that discretion will be left with the judge, but we are not dividing the House at this stage.

Amendment, by leave, withdrawn.

Amendment No. 36 not moved.

Section 13 agreed to.

Mr. McCartan

I move amendment No. 37:

In page 10, subsection (1), line 39, after "age" to insert "or the prosecution of the offence involves testimony as to fact by a witness under the age of 17 years".

Progress reported; committee to sit again.