Dáil Éireann díospóireacht -
Wednesday, 27 May 1992

Vol. 420 No. 4

Criminal Evidence Bill 1992: Committee Stage (Resumed).

Debate resumed on amendment No. 39:

In page 11, subsection (1), between lines 33 and 34, to insert the following:

"(iii) the person who conducted the interview which was videorecorded is available at the trial for cross-examination, or

(iv) no leading questions were asked by the interviewer during the course of such interview.".

—(Deputy Shatter.)

Mr. Shatter

I welcome the Minister's commitment to provide some sort of administrative practice code in relation to the Pigot recommendations. My difficulty with that is that it would have no statutory force. I am not quite sure to whom the code will be directed. The Minister might clarify that for us. If something of that nature is to be put in place there is no reason why we cannot take a copy of the relevant provision from the Criminal Justice Act, 1984, which provided the rules of conduct to be made in relation to interviewing to be brought before the House and confirmed by statutory instrument. Such a practice direction or code could be dealt with in that way so that it would have some legal force. Is the Minister prepared to undertake to the House to make available to Members of the House a particular form of direction he has in mind, before Report Stage, so that we will know precisely how it will fit into the section?

With regard to the Minister's responses to the amendment that I tabled, I accepted that one could deal with the "no leading questions" issue with a different form of wording. However, what the Minister says about the provision which would require the person who conducted the interview to be available to the court is a cause of great concern. There are criminal trials which on occasions either cannot go ahead or cannot use evidence because a witness is dead. Unfortunately, there is not much we can do about that. However, in the overwhelming number of instances where this technique is to be used, unless the social workers and the child psychiatrists of this country are to be struck down by an unanticipated disease it is highly unlikely that we will have a problem with large numbers of people conducting interviews dropping dead between the date of the interview and the date of the trial. What is of concern, as Deputy McCartan pointed out, is that the professional who undertakes an interview may very well go abroad for professional reasons and when that interview is being conducted it is not clear that the video, for example, will include not just the child but the questioner. The Minister might clarify this.

I do not know whether an enthusiastic questioner of a child might not, by facial reactions to the answers given, signify approval or disapproval of what the child is saying or might not do that by his mannerisms. Indeed, when a child gives a response to a question asked, that response may be open to a variety of interpretations. From the point of view of the prosecution it may be of importance that the interviewer be present to give evidence as to what the interviewer believes the child meant by what the child said. From the point of view of someone against whom an allegation is made, he may want to ask the same question of the interviewer and he may call an independent professional witness with similar qualifications who has viewed the video to indicate whether his understanding of what the child meant coincided with that of the interviewer. The questions an interviewer asks, on the assumption that they are not all written out in advance, may be stimulated by a reply received to a previous question.

In a criminal trial where we start off on an assumption that one is innocent until proven guilty, the idea that someone who has conducted a central interview of an alleged victim on an incident that has given rise to the trial in the first instance, and that that person may not be present to give evidence, is extraordinary. It conjures up images of the book by Franz Kafka, The Trial, when unknown evidence was being given against someone who could not quite find out what it was he was being accused of by unknown people. We are talking about a criminal trial. I would envisage constitutional difficulties with this section, if the State sought to prosecute a case and produced a video with, for example, the person who conducted the interview being out of the country and the accused's lawyers not being able to even subpoena that person to attend that court, and the State insisted that nevertheless this whole interview could be presented to the court even though that person was not available. I can see huge problems with that. I am not raising this as a debating point. It is a problem, an issue which we would need to address properly. It is very easy to put this to a vote but in the light of what the Minister and Deputy McCartan have said, I would like to go back and look at this amendment, in particular the phraseology of the leading questions portion of it. It would seem to me that that amendment could be better phrased. That is the usefulness of this procedure. I will not press amendment No. 39 but I will propose an amended version on Report Stage.

I hope the Minister will listen seriously to what I am saying about the person conducting the interview being available to the court. If we maintain that the courts will have to judge the fairness of these interviews and what can or cannot be admitted, we will be setting up a series of trials upon trials. There will be a series of court cases to tease out what is fair and what is not. Rather than facilitating the criminal justice process we will be creating a line of cases awaiting hearing while various appeals go through. In so far as we can lay down the parameters of the application of this legislation, we have a duty to do so.

I am not happy with the Minister's response on the issues relating to the use of anatomical dolls and I am considering pressing that amendment.

Mr. McCartan

The Minister's view is that this whole matter should rest with the court and that each court should decide what is fair and proper in the circumstances. We would then end up with so many trials within trials upon issues in this legislation that this would add to the length and complexity of many cases. That is not good practice. This is a matter of crucial importance and it is incumbent on us to set down guidelines for the practice of law throughout the whole country. I am worried that different approaches could be taken by different judges on different circuits that would frustrate the development of the criminal law and jurisprudence in that there would not be cohesiveness and consistency of approach. A practitioner going to the south-east circuit would have to ask about the attitude of a particular judge to the professional witness. Some judges might regard that person as not being a witness; other judges would maintain it would be unconstitutionally unfair not to have the professional person available. There could be variations. There could also be disagreement about leading questions and the use of anatomical dolls. It is not desirable in practice to leave it to individual judges and cases for rules to be built up. Confusion would certainly arise. In Dublin judges could be trying cases contemporaneously. One judge might allow the video to be shown even if the interviewer were not available, but a judge sitting down the corridor in another court might rule othewise. That would not be good practice. The courts will round on us when this issue comes before them and will quite correctly criticise us for not laying down guidelines.

The Minister should at least give an undertaking that he will consider a general provision enabling him to bring in regulations which will cover a range of issues dealt with by Pigot and the Law Reform Commission. The guidelines should be a matter for regulation under legislation as a way of introducing a standard national approach in all courts.

Mr. O'Dea

I will take account of what Deputy McCartan has said. It is my intention that the code of practice will be directed at people who will be conducting out of court interviews of this kind.

Mr. McCartan

Those codes of practice and their implementation should have implications for how the evidence is received. We need to lay down additional guidelines. I do not disagree with what the Minister said.

Mr. O'Dea

One of the difficulties is that I do not have the authority to agree. I will consider the point and pass it on to the people who do have authority.

Mr. McCartan

That has worked up to now.

Mr. Shatter

The Minister of State is left to do the real work while the Minister does the public relations work.

Mr. O'Dea

Questions have been raised as to whether the video will include the interviewers. My advice is that it will not necessarily include the interviewers but the prosecution will have to provide evidence as to who were present. The sound track will include the questions put to the child.

Mr. McCartan

It is crucial that these videos should carry both. What is to stop a person hand signalling them?

Mr. O'Dea

I am advised now, contrary to my initial understanding, that the video will not include the interviewers. I am very unhappy with that. It is a sine qua non that the video will have to include the interviewers, otherwise the whole thing would become quite ridiculous. I want an amendment between now and Report Stage to ensure that the video will include the interviewers. That is absolutely essential.

Mr. Shatter

Although there are only three of us contributing to this debate, we are doing some very important work. It has been worthwhile and I hope we will get substantial amendments. I am not happy with the Minister's response on amendment No. 40, but I want to avoid wasting time on a vote. I would ask the Minister to give some real consideration to a specific provision dealing with the use of anatomical dolls.

Mr. O'Dea

The Pigot committee suggested that these artificial devices should be used only when the substance of the complaint has been made clear. My consideration will be along those lines.

Amendment, by leave, withdrawn.

Amendments Nos. 40 and 41 not moved.

Question proposed: "That section 15 stand part of the Bill."

Mr. Shatter

I want to refer to the submission made by the Incorporated Law Society. They make the valid point that it appears these videos will be presented as if they establish the facts of the allegations contained. They say it seems that the video recording of the interview with the witness can be used in evidence if the witness is available at the trial for cross-examination. This suggests the prosecution would present the videorecording of the evidence and then invite the defence to cross-examine the witness on the basis of the video. They say in practice this would be counterproductive as the witness would be launched into a cross-examination without the settling effect of an examination-in-chief. Can the Minister of State comment on the different types of videos referred to in paragraph (a) — a video recording of any evidence given by a person under 17 years of age, and that referred to in paragraph (b), a video recording of any statement made by a person under 14 years of age? Is it intended that they be applied differently or that a video of the type of assessment, to which I have referred, could be presented as the extent of the evidence of alleged sexual assault? There may be one video recording of evidence given in a preliminary examination in a District Court, which is a formal giving of evidence — and we may say this is the formal giving of evidence, and that this witness is available for cross-examination. That might be acceptable although there is a point in saying a witness may be unsettled if he or she is immediately launched into a cross-examination; nevertheless that may be acceptable.

In regard to the medical practitioner with relevant qualifications conducting an assessment, could that be presented as the evidence of the allegation and cross-examination could then go ahead? If that is the case it would be a matter of some concern because that type of approach may elicit information that either elucidates the events surrounding the sexual assault or may seek to confirm that one took place. It may not be a coherent presenting of an incident that took place in a way that is evidentially necessary in the context of a criminal trial. As in other sections of the Bill, we envisage that the young person giving such evidence would do so in a less formal surrounding than applied heretofore. It would seem that direct evidence of an alleged offence should be given and it should not be sufficient simply to present the video.

Mr. O'Dea

Deputy Shatter is correct in his interpretation of the section in relation to paragraph (a). This is the evidence given by a witness under the age of 17. The evidence which he will be giving will be at the preliminary examination. That is what will be video recorded and it will be given on a live television link. He may be cross-examined at the trial on this video recording.

In relation to section 15 (1) (b), this is an out of court interview on which the person who gives the interview may be cross-examined at the trial. I realise what the Law Society are saying. My interpretation of the situation is that the video recording will be in addition to whatever other evidence-in-chief the child may give. Even though there will not be a full examination-in-chief, because the video will be there as a supplement, nevertheless the child will be giving some evidence-in-chief which may lessen the unsettling effect. It may be useful to go through the video with a child on the day before or on the morning of the trial as a reminder of what was said. It is envisaged that the video would be a supplement.

Mr. Shatter

I suggest to the Minister that there is a need to amend this section on Report Stage because this section is open to interpretation as a video may be presented as direct evidence. There is a danger that could happen. If that did happen and if a prosecution was properly brought in a case where there had been a sexual assault there would be a real danger, if that evidence was regarded as the evidence-in-chief and a conviction was secured, that that could be upset on appeal and that someone who should be convicted could be let off in the circumstances. I would ask the Minister to look again at that section. I do not want to dwell on it any further as we have spent a great deal of time on it. I would ask him to look at it again to ensure that evidence-in-chief is presented. There are constitutional difficulties here about someone being convicted of an offence in circumstances where the victim has not given primary evidence before the court of the events that took place.

Question put and agreed to.

SECTION 16.

Mr. McCartan

I move amendment No. 42:

In page 12, line 1, after "may" to insert "either on the application of the accused, or the prosecution, or in its own motion".

This is simply a provision to clarify the right of the parties to the proceedings. Section 16 allows the court to transfer a case from its jurisdiction to that of the jurisdiction of a neighbouring or other court that has all the telecommunication and video recording facilities necessary to implement the provisions provided for in Part III. I am suggesting — because the section is silent on this issue — that the application to make such a transfer of a case can be on the motion of the prosecution, the defence, or on the court's own motion.

Mr. O'Dea

Deputy McCartan has said the object of his amendment is to make it clear that a court may transfer proceedings to a court with television facilities on the application of either the accused or the prosecution or of its own motion. I do not think the amendment is strictly necessary.

The section provides that where such facilities are not available the court concerned may transfer the proceedings if in its opinion it is desirable that evidence be given through a live television link or by means of a video recording. It seems to me to be open to the court to form that opinion of its own motion. There is no restriction on the accused or the prosecution from asking the court to make an order. As I envisage it that would be normal practice.

Mr. McCartan

If the declaration of the Minister of State is that it is equally open to either party to apply I am happy to withdraw my amendment so long as we have that on the record.

Amendment, by leave, withdrawn.

Question proposed: "That section 16 stand part of the Bill".

Mr. McCartan

Because there is talk about different jurisdictions which will have the facilities — we are some months into this legislation, first circulated on 31 January 1992 — can the Minister of State give an indication as to how many court jurisdictions in the country, in the initial stages, will have the facilities we are talking about and what resources are being put into making this legislation work, not merely in the Dublin area but throughout the country?

Mr. O'Dea

At present three courts in Dublin have these facilities. I do not have any information on the level of resources being applied but perhaps I can communicate that information to the Deputy. I am assured they are adequate.

Mr. McCartan

I have no doubt about that. One of the points made to me last night by a Deputy was that while the legislation may be passed this year it may not come into operation for months or even years to come. I am anxious, as I am sure we all are, that the legislation will be fully operable as soon as it is passed. I am glad to hear there are now three courts in Dublin providing these facilities. I should like to know whether all the facilities will be in Dublin or whether courts outside Dublin locations will be equipped with facilities to operate this legislation.

Mr. O'Dea

Sorry, I may have misled Deputy McCartan. I meant to say that the contract had gone out and it is expected that facilities will be in place in those three Dublin courts in October. In relation to the second question, our plan is to have facilities available in one court in the south and one court in the west next year.

Question put and agreed to.

Acting Chairman

Amendment No. 43 is an alternative to amendment No. 42a. Is it agreed that they be discussed together? Agreed.

Mr. O'Dea

I move amendment No. 42a:

In page 12, before section 17, to insert the following new section:

17.—Where, at the trial of a person for an offence to which this Part applied—

(a) the person in respect of whom the offence is alleged to have been committed is under 17 years of age,

(b) evidence is given—

(i) that the accused was known to that person before the date on which the offence was alleged to have been committed, or

(ii) that the accused has been identified by that person or another person under that age as being the offender at an identification parade or through another identification procedure,

that person or that other person shall not be required to so identify the accused at the trial, unless the court in the interests of justice orders otherwise.".

I am moving this amendment to meet concerns expressed by a number of Deputies on Second Stage and also in the light of Deputy Shatter's amendment No. 43. On reconsideration I am satisfied that section 17 as drafted does not adequately achieve its purpose, that is, to avoid unnecessary in-court identification in child abuse cases. It also contains a presumption, rebuttable it is true, but only rebuttable when the contrary is proved, in this case by the accused person.

As I mentioned earlier in another connection, any shifting of the burden of proof onto the accused is objectionable in principle and I want to be consistent in this matter. The amended text excludes in-court identifications by an alleged victim who is young or mentally handicapped in two cases. One is where the accused was known to the alleged victim before the offence was committed, say, a relative or a babysitter. The other is where the alleged victim or another person has identified the accused at an identification parade or through another identification procedure. In each case it will have been established by evidence that the accused was known to the alleged victim or, as the case may be, that the accused was so identified.

However, to ensure against any possibility of injustice, the new text provides for the court to allow in-court identification in exceptional circumstances, that is, where such may be required in the interests of justice. I consider that the amended section achieves a proper balance avoiding unnecessary and traumatic confrontations with those accused of child abuse and the need to ensure fairness of trial procedure, and I commend it to the House on that basis.

Mr. Shatter

In the context of section 17 as it stood prior to the amendment the Law Society solicitors made the point that it was an extraordinary provision for which they could find no justification. They state:

It involves the reversal of the burden of proof in a criminal case when an accused is identified by a witness under the age of 17. It is assumed that the purpose of this action is to obviate the necessity of the witness physically picking out an accused in court which may not be possible where there is a live television link. It creates a presumption in certain circumstances that the person identified on an identification parade or other identification procedure is the accused. In certain circumstances the accused should be prevented from offering rebuttal evidence without the leave of the court. It is not clear whether the section involves a presumption that the accused was correctly identified or simply that he was the person who was picked out by the witness.

My amendment No. 43 seeks to insert a provision to the effect that "nothing contained in this section shall prevent the accused from challenging the validity of the accusation that he has committed an offence to which this Part applies or the accuracy or the identification by the person in respect of whom the offence is alleged to have been committed".

The Minister's amendment goes some of the way. Will the Minister tell the House the difference between his amendment and my amendment and the reason for not including this provision in it? It does seem that an accused can still challenge the validity of an accusation that he has committed an offence, even without that provision. I am wondering about circumstances where there is an allegation that someone has been the victim of a sexual offence and someone has been picked out at an identification parade. Let us say the sexual assault on the person occurred on a 15 or 16 year old late at night in a badly lit area and the victim did not get a full look at the person and in an identification parade the victim picks someone out and that person is then present at the trial. It could be that the victim picks out the alleged perpetrator within hours or a day of the event when the victim is under stress. At the trial let us say the victim assumes, and everyone assumes, that the person picked out was the right person. The victim at the trial may realise that this is not the person. Normally in the witness box the victim would have to identify the person in court and in 999 cases out of 1,000 they identify the accused; the accused is quite obviously there and identifiable.

I wonder how we deal with the situation where a distraught victim points out someone at an identification parade a short time after an offence has been committed, comes along to a court and cannot recognise anyone? We assume that the person who is the accused has committed the offence. How does one deal with that, because people under stress brought by the Garda to identification parades can make serious errors. It seems that when that happens we start off with the presumption that the person identified is the accused and is guilty. I have great concerns about this because of the uncertainties of identification evidence.

I fully accept, in the context of child sexual abuse or sexual assault that if the assault is by someone who is a close relation, be it a father or a cousin or a brother, or perpetrated by a babysitter of course, there is no difficulty in identifying that person. However, what is the position if it is not someone who is related, if a 13 or 14 year old walking down a dark lane late at night is assaulted and picks someone out the following day in an identifications parade and then a trial takes place? One may, under stress, have picked out the wrong person and that person may find the onus has switched. They are presumed to be the person.

I am not sure how that will be dealt with in the interests of justice. A judge will be left with the discretion, in the context of the Minister's amendment. He may say that it is in the interests of justice, because it was a dark lane and because of the circumstances surrounding it, that this person should again be identified. I am somewhat uneasy about this. I feel very strongly that if the person who is accused is the father of the child or a close relation or a babysitter that the child should not be put through the trauma of being physically present in a courtroom and having to point out that person again because that adds to the effect of the events that have taken place on the child. I am concerned about the other situation. I welcome the Minister's amendment. I wonder if we should have yet a further look at this on Report Stage. Also, will the Minister respond to my amendment?

Mr. McCartan

This section has given me a great deal of trouble. I thought long and hard about putting down a simple amendment opposing the section but felt it would be better to wait for some debate and discussion on Committee Stage to come to a final conclusion on it.

I commented yesterday that the Law Society did not see anything particularly good in this revolutionary legislation as we have described it, but in their submission they seemed to be arguing on the Bill entirely from the conservative established point of view. They were unable to recognise the real efforts being made to move into a modern context of court proceedings, albeit they deal with accused persons standing in the dock who are to be presumed innocent. Of this section they say: "This is an extraordinary provision to which the committee takes exception and for which the committee can find no justification." That is pretty strong language, we have to concede, coming from such an august and conservative body as the Law Society. They continued:

It involves the reversal of the burden of proof in a criminal case where an accused is identified by a witness under the age of 17 years. A reversal of the burden of proof is a rare event, in our view, in terms of the criminal law and should never be introduced except for very good reason and need.

I have, as a practitioner, been involved in cases where people have been placed in the dock by process of wrongful identification. One case some years ago involved a fracas at a restaurant in this city of Dublin. A young girl, who was loosely involved in the fracas, was picked out by the Garda Síochána and charged before the District Court; the Book of Evidence was served, and she was returned for trial. The restaurant staff gave evidence of being assaulted and injured and spoke about the issues surrounding the event. They were also cross-examined and questioned about their capacity to observe.

However, if I recall correctly, it was only when there was a break for lunch that the witnesses, who had completed their evidence, indicated in a casual conversation that the girl sitting inside in the courtroom in the dock was not the person who had assaulted them. In frustration, the garda asked them why they had not said so and the answer they quite correctly gave was that no one had asked them during the course of the trial, no one had asked them formally to look around the courtroom and pick out the person who they believed was responsible for the assault. If they had been asked to do so for the first time in the criminal process they would have looked at the person sitting in the dock and said that was not the person responsible but someone else. It may well be that a friend of the defendant sitting in the body of the court could have been picked out.

That was a remarkable event and the case could have gone before a jury and a conviction recorded against that person if the casual conversation between the witnesses and the garda during the break for lunch, which was unscheduled, did not take place. While this may be a small event — it was a big event in the mind of the defendant — it brings home to me time and again the point that we should be reluctant to adopt the concept put forward by the Minister of State that we should avoid unnecessary court identifications. This is almost a contradiction in terms, except in the narrow circumstances to which the Minister of State refers in subparagraph (i) of the amendment which reads "that the accused was known to that person..." I have difficulty even with the language used there for example, what is meant by the word "known"? Does it cover cases where the defendant lives in the same locality as the victim and is known to the victim because they pass up and down the same road at 9 o'clock in the morning on the way to school or at 5 p.m. in the evening on the way home from work? This matter needs to be clarified. It can be argued also that in a small provincial town everyone knows everyone else. I know what the Minister of State is getting at in subparagraph (i) where someone knows someone else because of their relationship or because they have come in close contact with them, be it a babysitter or a friend in the gang, but the concept of "known" is open to a wider interpretation. Given that in a small provincial town or village the issue of identification can have a real meaning, it is important that we look again at the language used.

I accept that we should abandon the notion of court identifications where there is no doubt that the victim knows the defendant. Clearly, the victim would know his/her father, brothers, cousins, close relatives and those who visit the house for a particular reason, be it a tradesman, worker-employee or babysitter but we will get into difficulty if we extend that concept to cover those who frequent the same road or live in the same part of the city or town.

In regard to subparagraph (ii), I think the Minister of State should delete it and that it is necessary, in those circumstances, to have the ultimate safeguard of allowing the victim or witness to say in court before the jury who the person is. For the reasons outlined by Deputy Shatter and having regard to the illustration I have given the House, the jury should be able to see the victim point in the direction of the defendant and hear them say that that is the person who was responsible.

If the Minister of State is going to leave that subparagraph in the Bill let me ask him a question about the phrase "or through another identification procedure". What has the Minister of State got in mind? The Court of Criminal Appeal are very critical when the police use procedures other than the identification parade. If I recall correctly, a murder trial was stopped recently and one of the grounds on which the accused was discharged without the case going to the jury was that the identification parade was made up of six people, not the usual seven. The courts have ruled that there is one way and one way only of using the identification process.

Some years ago in Dublin many detectives took people in the back of their motorcars to the Bridewell courts where they could watch, either from the car or the street, people passing to and from the courts through the front gate. Thankfully this practice has been abandoned. I do not know whether the Minister of State has received a communication from a man in Mountjoy Prison — but many of us have, including, I have no doubt Deputy Shatter — who complained bitterly about his conviction in a rape case. This case has been drawn to the attention of the Minister who has answered questions in the Dáil about it. The witness, while in the back of a Garda car, identified the defendant who was riding a bicycle. The case was surrounded by controversy but the conviction was upheld on appeal. Indeed, the Attorney General has refused him a certificate to appeal the decision to the Supreme Court.

All I am saying is that the Garda are strongly criticised when they use processes other than the identification parade. I would like to know what the Minister of State has in mind but if he is going to leave subparagraph (ii) in the Bill he will have to remove the words "or through another identification procedure". When legislating we should take into account what the courts have said is the correct and proper way of making an identification in these circumstances that is, by way of an identification parade.

On the face of it this seems to be a reasonable and innovative procedure but it has raised many worries and considerations in the minds of Members in the Chamber and it is important, given that we are breaking new ground in this area, that we look at each of these sections closely and carefully.

Mr. O'Dea

In response to Deputy Shatter who raised the question of presumptions, the presumption is now gone. The section, as originally drafted, contained a presumption which was unfair for the reasons I have already explained. The purpose of this amendment, which will insert a new section 17, is to avoid the trauma of in-court identifications by victims under the age of 17. Regardless of whether this can be achieved or not, it is a desirable objective. Deputy Shatter is concerned that there would be nothing to stop the accused challenging the validity of the identification or disputing that he had committed the offence as a result of section 17. The accused can still cross-examine the person who identified him. Deputy Shatter gave an example of an accused person being identified by the victim at an identity parade at a time when the person was under stress. A person can be cross-examined in that regard; he or she can be asked when the identification parade took place, how long after the event this happened and what his or her feelings were.

Mr. Shatter

I will intervene to be helpful. On the television link system which will be used, if the victim does not identify the accused, will the camera, for the benefit of the victim, focus on the accused? Could the victim be asked questions in a trial without seeing the accused on screen because all that may be seen would be the lawyers asking questions?

Mr. O'Dea

The Deputy is correct, the camera will not focus on the accused. The only way in which a person in that case would be able to identify the accused in court would be to bring the child into the court to point out the accused. There is no provision whereby the camera can pick out the accused.

Mr. Shatter

Will the Minister agree that this is a huge problem in relation to challenging identification evidence? In other words, the distressed person makes the identification in the way I described, three months later there is a trial but the child does not see the accused and does not get an opportunity to do what Deputy McCartan described, which is to realise suddenly that the person picked out is not the person who committed the assault. How do you challenge the identification evidence in those circumstances if you are an accused?

Mr. O'Dea

The accused will be the person challenging it and there is nothing to stop the child victim being brought to court to officially identify the accused. I am advised that there is nothing to stop the accused from challenging the validity of the evidence. Deputies will notice that the second last line of the amendment in my name says that to avoid injustice there is provision for in-court identification, even in those cases, where the interests of justice require it. It is a saving provision to cover cases where the accused would insist and the court would feel that they could not be satisfied unless they had an in-court identification. They would feel that the accused is entitled to that.

Deputy McCartan made the point about the accused being known to the person. Perhaps we could use some formula such as "personally known". I will have that matter examined. Deputy McCartan also made the point about what other identification procedure we had in mind. That occurred to me when I first read the amendment and it is something we will have to look at more closely. In the light of what has been said — this is a very important section although it involves a small percentage of accusers, namely child victims under the age of 17 — we will ask the Department to have another look at the section to ensure that there are proper safeguards. I take the points raised by Deputies that there is a distinction between somebody who is obviously personally known to the victim and a person who is only identified by the victim in another context. We will have to bear that distinction in mind and I will ask the Department to look at it between now and Report Stage. Perhaps we can come back with further refinements and modifications at that stage.

Mr. Shatter

In the circumstances, perhaps the Minister should withdraw his amendment as we know that a further amendment will be tabled on Report Stage. We have withdrawn amendments to which valid objections were raised and it seems a little futile to incorporate an amendment of this kind which needs to be teased out further. This is the first occasion we have teased it out and I am grateful that the Minister has taken on board the worries which we expressed.

An Leas-Cheann Comhairle

It would be a matter for the Minister to decide whether he wants to leave in this amendment and have it amended again on Report Stage.

Mr. Shatter

I am not making a political point.

Mr. O'Dea

Deputies will accept that the amendment is an improvement on the original section 17, which I want to remove as quickly as possible. From that point of view I ask the House to accept the amendment in that spirit. Regardless of the difficulties in relation to the amendment, there are far more difficulties in the original section 17. In order to remove section 17 as it originally stands I ask the House to accept the amendment and I will give an undertaking to see what further refinements are necessary on Report Stage.

Mr. Shatter

I have substantial reservations in relation to the amendment although I accept it is better than the original section. On that basis we will not oppose the amendment, on the understanding that the Minister will be bringing forward a more substantive proposal on Report Stage.

Mr. McCartan

My approach is similar. Instead of wasting the Minister's time on the question of identification, it struck me that there is a practice within the Garda that where an accused refuses to stand in an identity parade the police are entitled to confront the witness directly with the accused person. That may be one of the provisions envisaged by the wording. I will be happy to come back to this on Report Stage but I repeat that I am still fundamentally worried about the overall idea. In-court identifications are a necessity and I agree with that, especially when I heard the Minister suggesting that in the event of the accused challenging the identification it would be open to the court to allow the victim to come into court. That will inevitably happen in virtually every case where identification is a central issue.

An Leas-Cheann Comhairle

Notwithstanding the reservations and bearing in mind the assurances of the Minister, can we take it that amendment No. 42a is agreed?

Amendment agreed to.

An Leas-Cheann Comhairle

The acceptance of this amendment involves the deletion of section 17.

Section 17 deleted.

Amendment No. 43 not moved.

Section 18 agreed to.

SECTION 19.

Mr. O'Dea

I move amendment No. 44:

In page 12, line 42, to delete "the" and substitute "an".

Amendment agreed to.

An Leas-Cheann Comhairle

We now come to amendment No. 45 in the name of Deputy Shatter. Amendments Nos. 53 and 57 are consequential and, therefore, amendments No. 45, 53 and 57 may be discussed together. Is that agreed? Agreed.

Mr. Shatter

I move amendment No. 45:

In page 12, line 42, after "accused" to insert "and a person who has concluded a deed of separation with his spouse under which the parties have agreed to live or to continue to live separate and apart from each other".

This is a relatively simple amendment in relation to the competence and compellability of spouses. There are various provisions in Part IV of the Bill detailing circumstances in which a wife or husband or a former wife or husband can be required to give evidence. One rule will apply where separation decrees are granted by the courts but that will not apply where a husband and wife permanently and voluntarily separate by agreement. In my experience, although a large number of separation cases come before the courts, the majority of husbands and wives who resort to lawyers following marital breakdown end up resolving their problems by entering into a separation deed or agreement. It is my formal proposal that we amend the Bill to take this provision into account by including an amendment in page 12, line 42, in which there is a definition of a former spouse which is said to include a person who has been granted a decree of judicial separation in respect of his marriage to the accused. I propose that we insert the words in my amendment. It is a sensible approach and is the type of provision made in other legislation where it was necessary to differentiate between couples who are living together happily and those who are living apart.

Progress reported; Committee to sit again.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.