Dáil Éireann díospóireacht -
Thursday, 11 Mar 1993

Vol. 427 No. 8

Criminal Justice Bill, 1993: Report and Final Stages.

Mr. Shatter

I move amendment No. 1:

In page 5, between lines 36 and 37, to insert the following:

"(3) where a court is determining the sentence to be imposed on a person for an offence to which this section applies, the court shall, upon application by the person in respect of whom such offence was committed, hear the evidence of the person in respect of whom the offence was committed as to the effect of the offence on such person upon being requested to do so.".

My amendment seeks to insert a new subsection in section 5 which deals with the effect of the offence on the victim. Section 5 provides that where a court is determining the sentence to be imposed on a person for an offence to which this section applies, the court shall take into account and may, where necessary, receive evidence or submissions concerning any effect, whether long term or otherwise of the offence on the person. In other words, it is left to the court where it deems it necessary to receive evidence or submissions as to the effect of the crime on the individual. It appears that the court has to decide in a vacuum whether to hear evidence or submissions. The victim of the offence would not be a party to the proceedings and effectively it is left to a judge to determine whether to receive evidence on submissions on the effects of the offence on the victim.

The subsection which I seek to insert reads as follows:

(3) Where a court is determining the sentence to be imposed on a person for an offence to which this section applies, the court shall, upon application by the person in respect of whom such offence was committed, hear the evidence of the person in respect of whom the offence was committed as to the effect of the offence on such person upon being requested to do so.

This brings me back to where I started yesterday when I said we should have a more victim-oriented system of criminal law. Under the provisions of this subsection, the victim of a physical or sexual assault, following the completion of the court hearing and the conviction being made, will be allowed to ask the court to hear evidence on the effects of the crime, before the court will pass sentence and when they would make such a request the court would have to listen to what they had to say. It would not simply be a matter of a judge or a third party, such as the prosecutor or prosecuting counsel making that decision. I am concerned that people who are the victims of serious offences be allowed the opportunity so that the court truly understands the effect the offence for which the guilty person has been convicted has had on them. When I originally proposed this amendment on Committee Stage I also included a provision to allow the victim in such circumstances to have legal representation. It is desirable that this should happen, particularly when we appear to be giving legal representation automatically to the convicted person when the unduly lenient sentence is appealed. I fail to understand why someone who is convicted of an offence should get free legal advice and be treated better by our legal system than the victim of the offence. That seems to me to be a very unequal application of the laws of justice.

I hope the Minister accepts this proposal. If he does, I hope he will recognise that a victim should be given a right to have the effects that that crime has had on the victim's life heard by the court.

As we have only a limited time, may I ask the Minister to clarify how he envisages section 5 (1) working in practice? Subsection (1) states that a court "where necessary," may "receive evidence or submissions concerning any effect...of the offence". I am not sure how the effects of the offence will be communicated to the court in the absence of the individual, who is the victim, giving evidence. Will a medical report be submitted to the court? If so who will have to obtain the medical report for the court? Will that be a function of prosecuting counsel? If someone is suffering from psychiatric problems as a result of a violent or sexual crime, will a psychiatric report on the victim be made avaiable to the court and will the court welfare officers prepare such a report? If the victim had been badly affected by the crime, for example, if a wife had been sexually assaulted, would her husband be allowed to give evidence to the court on the effects that assault had on his wife? Over whom will the court have jurisdiction to take evidence from in relation to the effects of a crime?

On the other hand, there are occasions when crimes are committed against individuals who already suffer difficulties. If the effects of the crime are of a psychological or psychiatric nature it will be difficult for the court on occasions to determine whether the difficulties relate to the crime. Let us take the purely theoretical case of a young woman who had serious psychiatric problems, a teenager suffering from anorexia who was sexually assaulted and this exacerbated her condition. If the court is to determine the effects of the assault on her what information will be furnished to it about her health prior to the assault? Let us assume that two men have a fight and one is held responsible for the serious injuries suffered by the other, who not only appears to have physical injuries but psychiatric problems as well. The court will have to have regard to that issue in determining the sentence to be passed but what information will be made available to the offender about those matters and how will the court obtain information as to the health of the person before the assault took place?

I very much welcome the provision which will require the courts to examine the effects on victims of crimes committed against them and require the court to take those into account when sentencing offenders, but this is a very small section and deals extremely briefly with the manner of the application of this principle. I think it is inadequate and needs to be beefed up to a considerable degree in order to ensure that the victim can communicate fully and comprehensively to the court the effects of the crime perpetrated but also so as to ensure that injustices do not result from the court assuming that someone is unwell because of the crime which was committed against them when they may have been unwell for a considerable period of time before the crime was committed. I am concerned that the section may result in certain constitutional problems if courts take into account the effects on victims of crimes committed against them without the person being sentenced getting adequate information as to the alleged effects before sentence is passed. It should also be recognised that it is the right of the victim in cases as serious as those detailed in section 5(2) to be heard by the court as to the effects on them of the crime committed against them if the victim requests a court to so hear.

Mr. Gilmore

I, too, support this amendment. We have spent a long time today arguing the case for a more victim-centred approach to the question of sentencing. It is clear that there are cases where the victim would wish to have an input into the sentencing by the court and to be able to volunteer information to the court about the effect of the offence on them. However, in some circumstances the victim may not be in a position to do that, for example, if the victim is no longer around.

In a case where a person is killed the Director of Public Prosecutions, for his own reasons, may pursue a charge of manslaughter rather than murder and the victim's family may feel aggrieved about this. They may wish to give information about the effect of the offence on them as a family. There are other offences, including sexual offences, where it may be necessary to take account of the impact, not just on the victim, but on the victim's family. That area should be considered.

Mr. O'Dea

I do not believe we can accept the proposition that the court would refuse to hear a witness who wanted to be heard. The thrust of section 5 is to impose on the court the obligation to take into account the effect of the crime on the victim. Therefore, the onus is on the court to ascertain the effects of the crime on the victim. Obviously, the court may do this by requesting the victim to give evidence, but I can envisage many cases in which the court would not want to do that as it would put the victim through a great deal more trauma. If the court does not think it is desirable to question the victim directly or if the victim, understandably, does not want to give evidence, the onus is on the court to obtain medical reports and so on.

Subsection (1) provides that the court can receive evidence from any quarter in relation to the victim, including evidence from the victim. I acknowledge Deputy Shatter's point. He is trying to find a specific way in which the victim can submit an application to be heard. I will accept the amendment in order to clarify the position.

Mr. Shatter

I am grateful to the Minister for accepting the amendment and I will not delay the matter any further.

Amendment agreed to.

Mr. Shatter

I move amendment No. 2.

In page 5, between lines 36 and 37, to insert the following:

"6.—(1) On conviction of any person of an offence to which section 5 applies, in addition to dealing with him in any other way, the court may prohibit such person at any future date from attending at or near to or entering any place in which the person in respect of whom such offence was committed resides or is in employment and from using or threatening to use violence against, molesting or putting in fear the person in respect of whom such offence was committed or any member of such persons family.

(2) An order made pursuant to subsection (1) of this section shall be treated as if it were a barring order made under the Act of 1981 and sections 5, 6, 7 and 8 of the Act of 1981 shall apply to such order.".

We dealt with this matter on Committee Stage where I sought to amend the legislation to allow the courts to make orders prohibiting a person who has committed the offences referred to from attending at or near the place of residence or business of the victim or from in any way interfering or molesting the victim. The Minister disagreed with this on Committee Stage and for that reason I tabled it for Report Stage. I will formally put the amendment, but I will not delay the House by regurgitating the previous discussion. Suffice it to say that I found it extremely disappointing that this amendment, which was designed to provide additional protection, particularly to women who are the victims of sexual and violent assault, was not accepted. This provision was designed to provide them with peace of mind following the completion of a criminal trial where the offender is sentenced to a term in prison. I was extremely disappointed that the two Government parties, Fianna Fáil and the Labour Party, voted en masse against this provision. I cannot help but speculate whether most of the Deputies on the Government side who voted against this proposal knew what they were voting on. However, ignorance is no excuse.

The Government's opposition to this provision might come back to haunt it. I hope some unfortunate person does not grievously suffer as a result of this provision not being agreed to on Committee Stage. I urge the Minister to give further consideration to inserting in this Bill in the Seanad a similar provision so that this matter is addressed at an early stage.

Mr. O'Dea

I realise that victims, as in the Kilkenny case, can be extremely worried as to what will happen when the offender is released from prison and both the Government and I are anxious to ensure that such victims have as much peace of mind as possible. However, if violent people intend to commit another violent crime against the unfortunate victim when released from prison, no matter how the law is structured it will not stop them. Nevertheless, I am anxious that a provision be put in place to ensure that there would be a ready remedy for those people to stave off the threat of violence or, at least, to make it as easy as possible for the Garda to arrest the offender without a warrant in order to prevent the violent act taking place. I am anxious that the victim would at least be in a position to obtain a barring or protection order, based on the type of person the perpetrator is when he is released from prison.

The objections I raised earlier were to the question of a court deciding, at the time of conviction, on a barring order against a person coming out of prison in six or eight years' time. As I said, I am anxious that the victim, who has suffered enough, will have the maximum peace of mind possible for a person who has gone through such an ordeal. I am still considering the matter and I think we can come up with a solution.

Amendment put and declared lost.

Miss Harney

I move amendment No. 3:

In page 5, between lines 36 and 37, to insert the following:

"6.—In any trial on indictment before any jury no reference shall be made in the course of such a trial to the power of the court to award compensation under the provisions of this Act.".

As I stated on Second Stage yesterday, in trial proceedings the essential function for the jury is to decide on the guilt or innocence of the accused. My fear is that if a reference is made to compensation the jury will become distracted and sympathise with the victim as opposed to assessing the guilt or innocence of the accused. Therefore, it is not appropriate in trial proceedings, prior to the jury's verdict that any reference be made to compensation — particularly by the defence counsel. For example, if a person pleaded guilty the defence counsel could argue that that person would be willing to pay an amount of compensation and the case would centre on the issue of compensation and paying the victim rather than the guilt or innocence of the accused and the subsequent penalty that must be imposed by the trial judge. I am anxious that the question of compensation to be decided by the judge arises only after a verdict has been agreed by the jury. This suggestion was made to me not by lawyers but by those involved in working with victims of these crimes Although they support in principle, as I do, the notion of the payment of compensation, they are concerned that that might in some way be seen to be received in lieu of what otherwise could be a custodial or other appropriate sentence.

Mr. O'Dea

I do not quite understand the purpose of the amendment. The jury in a criminal trial decides on guilt or innocence and the judge imposes a sentence. In making the decision the evidence is outlined to the jury but reference to compensation would not be admissible because it is in no way relevant to the guilt or innocence of the accused. If the accused is found guilty the judge will impose sentence and the judge knows of his right to give compensation in lieu of or together with a fine and/or prison sentence as the case may be. I can see what Deputy Harney may be trying to achieve but her fears are groundless. The question does not arise that compensation may be given if at the end of the process the judge passes sentence on finding the accused guilty.

Miss Harney

The Minister said that mention of compensation would not be allowed during the trial proceedings prior to a verdict of guilt or innocence. Is that the case? That is what I am trying to achieve.

Mr. O'Dea

It would be inadmissible because it would not be relevant to the issue before the court, which is simply the guilt or innocence of the accused.

An Leas-Cheann Comhairle

Is the Deputy pressing her amendment?

Miss Harney

If the Minister assures me that what I seek to achieve is included in the provisions of the Bill as it stands I am satisfied to take his word for it.

Amendment, by leave, withdrawn.

Amendment No. 4 not moved.

Mr. Gilmore

I move amendment No. 5:

In page 5, between lines 36 and 37, to insert the following:

"6.—(1) A person who receives a custodial sentence for a sexual offence shall be assessed for and, where appropriate, be required to undergo a medically approved rehabilitative programme of behaviourial treatment.

(2) For the purposes of subsection (1), the Minister shall establish within the resources of the existing Prison Welfare Service, and in consultation with the Director of Medical Services, a scheme or schemes for the rehabilitative treatment of offenders, assessed and deemed suitable under this section.".

Quite an amount of today's debate was devoted to dealing with the impact on the victim. It has been stated here on a number of occasions that a prison sentence may not result in the rehabilitation of the offender. The purpose of this amendment is to ensure that programmes are developed and implemented which are aimed at the rehabilitation of the offender. Sexual abuse and sexual crimes generally are very serious problems here. It is not sufficient that these crimes are simply dealt with by way of disposing of the offender, so to speak, by imposing a prison sentence without taking some measures to correct the behaviour and rehabilitate the offender.

There has been much talk about programmes which were supposed to be in place to deal with this problem. In a report from The Irish Times of Tuesday, 15 December 1992, dealing with a case heard in the Dublin Circuit Criminal Court on 14 December before Judge Michael Moriarty it was explicitly stated that the claim made by the Minister for Justice that the most advanced programme in the world for the treatment of recidivist sex offenders was operating in Ireland since last December was simply not correct. There are no programmes in place for the treatment of sex offenders. Quite clearly there is a need to put such programmes in place from the point of view of society at large because, first, it serves us very little if the offender, having being imprisoned, is released to commit the same crime again and, second, it serves the offender very little if some attempt is not made to rehabilitate him. In this amendment I am seeking to ensure that programmes are put in place and the most comprehensive treatment possible is made available for offenders.

Miss Harney

I support the intention behind this amendment. However, I have one query in relation to the part of the amendment that refers to a custodial sentence. There have been cases when for what are regarded as technical reasons no custodial sentence is imposed and yet it is clear that treatment of the kind referred to by Deputy Gilmore in this amendment is necessary. That is a small technical point and I would be interested to hear the Minister's views on it.

Deputy Gilmore is right in that there is no appropriate treatment here for sex offenders and that is a disgrace. A custodial sentence is intended in the main to take people out of society who are a danger to their families or others and also to deter other people from committing similar crimes. It is equally important that it include rehabilitating the offender and dealing with what I regard as an illness, because people who behave in this way suffer from an illness. Despite commitments from different Ministers it is sad that sex offenders do not receive appropriate treatment. By imposing custodial sentences offenders may end up more frustrated, more violent, more aggressive and more inclined towards violence on coming out of prison than they were before going in. It is extremely important, particularly given their confinement in a place of custody, that offenders receive the treatment referred to by Deputy Gilmore. I will not go into any more detail on this matter because there is only half an hour left. I will be interested to hear the Minister's comments.

I compliment Deputy Gilmore on the clever way in which he made sure this amendment was in order. He proposed that the finance for this measure be provided from the existing resources of the prison welfare service. I am not certain that will happen but the amendment is framed in such a way as to ensure it is in order. Apart from wages and salaries of prison officers and staff in places of detention, inappropriate resources are applied in the prison service generally in education, rehabilitation, training and so on, matters that are exceptionally important if prison is to be a place of rehabilitation.

Mr. Shatter

In support of this amendment I will refer to a more recent quotation than that referred to by Deputy Gilmore, from The Irish Times of Tuesday last which reports on a case in which Mr. Justice Flood, in the Central Criminal Court, made very critical comment of the absence of treatment and counselling programmes for sex offenders in Irish prisons. He stated: “Sex offenders are just placed in prison and left to rot. Then they are tipped out on to the public again.” In that case Dr. Art O'Connor, a psychiatrist at the Central Mental Hospital, told the court that at present there are 140 prisoners in Arbour Hill, 100 of whom are sex offenders, and that in Wheatfield, which houses 240 prisoners, about 60 are sex offenders who are catered for on two special landings. He went on to say that there are a small number of sex offenders in Mountjoy Prison. The judge took the view that the Government has reneged on its obligations in this area. In the context of plans that are allegedly in place to provide a better service he said:

I have heard of Government plans like that before. The fact is there is absolutely nothing available at the moment. This is an extremely serious predicament.

When Dr. O'Connor was asked if he foresaw the introduction of a suitable treatment programme within the next 12 or 18 months his response was

I would hope so. I can't say. I'm not a member of that committee.

The Government's attitude to this area has been entirely unacceptable for far too long. If a little more energy was put into addressing the problem and providing the services and a little less into public relations campaigns to portray concern when tragic cases arise, we would have a better country and better services. I support Deputy Gilmore's amendment. I am not optimistic that it will result in any particularly revolutionary change taking place but the intention of the amendment is right and it will perhaps give the Minister the opportunity to say something more about this area.

Mr. O'Dea

This amendment raises the question of treatment for sex offenders. I notice that Deputy Gilmore has carefully worded the amendment so as to keep it within the rules of procedure of the House.

I explained on Second Stage that at present these offenders have access to a range of medical, psychiatric, psychological and welfare services provided in the prisons. However, the Minister for Justice has now directed that the working group examining various options for treating these offenders should report to her within the next few weeks. She will then decide what services can be provided.

The problems of effectively treating a sex offender in the enclosed artificial life of a prison, in the company of other prisoners, many with behavioural and other problems of their own, should not be underestimated. These problems cannot be solved, and I know the Deputy is not suggesting that, by providing by law a requirement that offenders should compulsorily undergo a treatment programme. It is much more complex than that.

Before such a legislative commitment could be undertaken it would be prudent to consider what options the working group come up with. The group includes specialists with practical experience in this area and they have the benefit of the experience of other countries in trying to grapple with this problem. My preferred choice is to wait to see the recommendations of the group.

Miss Harney

Has that group just been established?

Mr. O'Dea

The working group was established after the Arbour Hill project came to an end.

Mr. Shatter

How long ago was that?

Mr. O'Dea

I do not know, but I can give the Deputy the information later. The Minister has given that group a time limit — within the next three of four weeks within which to report to her and then she will decide on what options to pursue. We should wait until we see what happens on that front.

The Deputies will be aware that many sentences are postponed or adjourned or people have got probation on condition that they undergo a programme of treatment. That is a feature of our criminal justice system too.

Mr. Gilmore

As both Deputies Harney and Shatter stated, it was really to get this issue aired in the context of this Bill that I tabled this amendment. I do not have any great expectations particularly as the Minister of State pointed out that I have phrased my amendment in the context of the existing prison welfare service which is completely under resourced and inadequate. However, my amendment has elicited from the Minister of State the response that some progress is being made. Grandiose statements have been made in the past including the one to which I referred in my earlier contribution, about the programmes that were intended to be put in place to deal with this problem. To date we have not seen the results we would like. The response of the Minister of State today is an improvement on the response of one of his predecessors during the debate on the rape Bill who stated that this was a problem that was being dealt with by the chaplains in the prisons. I am glad to see that we have come some distance from that, that a programme is at least under consideration and that a working group is to report. There will be other ways open to us in the House to pursue that matter so I do not propose at this stage to waste the limited time we have left to us to deal with the remaining amendments by pressing a division on the issue. I will withdraw my amendment but will raise the matter again in the context of questions to the Minister and so on to see what progress is being made by the working group and to ensure that their recommendations are implemented.

Amendment, by leave, withdrawn.

An Leas-Cheann Comhairle

We will move on to amendments Nos. 6, 7 and 8 in the name of Deputy Shatter and No. 9 in the name of the Minister. Amendment No. 7 is cognate and amendments Nos. 8 and 9 are related. I propose to take amendments Nos. 6 to 9, inclusive, together. Agreed? Agreed.

Mr. Shatter

I move amendment No. 6:

In page 6, line 34, to delete "means" and substitute "financial circumstances and capital assets".

These amendments are designed to flesh out the powers of the court in relation to making compensation orders. Under the section the court, in determining whether to make a compensation order, is required to have regard to the means of the offender. What does "means" mean? I know what it is intended to mean, but if the Minister looks up the Oxford English Dictionary he will find that "means" may not actually mean what we intend. I presume the Minister intended that in determining the capacity of an offender to pay a compensation order, the courts would have regard to the offender's circumstances and capital assets. The words "financial circumstances" would mean income or moneys in the bank or financial obligations such as to pay the mortgage on a family home or support obligations towards the family. One of the things we should try to aim at in legislation is to use language that is comprehensible in this day and age and to try to ensure that the language is clear.

The word "means" concerned me because if someone had little or no income but owned substantial capital assets, it might not be taken to be included within the word "means". It is an odd word to use, the sort of word I would have expected in legislation from the last century. I would urge the Minister to accept the suggestion that the word "means" be deleted and the words "financial circumstances and capital assets" be used.

I was also concerned that the court in determining what compensation order to make, must have regard to either the means or the financial circumstances and assets of the offender so far as they appear or are known to the court. If someone is in court and is found guilty of an offence of violence or sexual assault, it is quite likely that the court will know absolutely nothing about his means. I am not quite sure how what their means are will "appear" to the court. By some sort of miraculous apparition will the court suddenly have knowledge of somebody's means? It is agreed on all sides that the courts should have the powers to make compensation orders but it is recognised that it may be futile in some cases to make compensation orders particularly in cases where it is clear that the person who has been found guilty of an offence is someone of no financial standing and with no income. In such circumstances the court cannot exercise its mind in making compensation orders. Because of the way the section is drafted it appears that no power is vested in the court to require an offender to fully appraise the court of his financial circumstances. It is as if the judge must guess what his means are. Neither does the prosecuting counsel have a role in this but instead opts out once conviction is established. It is not for the prosecuting counsel to cross-examine someone about their financial circumstances. What is going to happen? When the offender is in the witness box following a conviction a judge may ask him a few questions concerning his financial circumstances. There will be no way in which the judge can determine the veracity or truthfulness of what he is being told. Someone who is not impecunious may pretend to be impecunious, so that amendment No. 8 is important in this regard. If we are to work the compensation provision correctly there must be a legal provision which allows a court to compel someone who is convicted of an offence to make a disclosure to the court of his financial position. In my view the court should receive notice of that disclosure and the person making the disclosure should be open to questioning on the trustworthiness and truthfulness of what they say. Hence, I suggest that a new subsection (6) be inserted in section 6 which would read as follows:

(6) Prior to making a determination under this section as to whether to make a compensation order the court may require the convicted person to make a full disclosure by way of affidavit to the court of his financial circumstances, and capital assets and the convicted person may be heard in evidence in that regard if the court so directs.

In other words, if someone is found guilty and convicted of an offence as serious as the listed offences in the Bill there would be a further procedure which would apply. They would have to do what is often done in many court cases, complete a court document or affidavit in which they detail their earnings, savings and capital assets which would be submitted to the court. They could then be called to give evidence on their financial circumstances and what they had stated in that regard would be open to questioning. For example, if they stated they had moneys in particular bank accounts or savings accounts it would be open to the court to require that they make a disclosure of those accounts to the court to determine what compensation, if any, might be awarded. Without such a provision this section would lack teeth and would not work. I appreciate that the Minister's amendment, No. 9, which seeks to insert a new subsection (13), is designed to ensure that when the court discover someone's finances they also discover what financial obligations or commitments they may have already. I would argue that that is well defined within the concept of financial circumstances but if the Minister is not of that view there is nothing incompatible with this proposed amendment No. 9 and my amendments Nos. 6 and 7. If the section is to work all those amendments require a provision such as the insertion of the proposed new subsection (6).

I hope the Minister will look favourably on this amendment as a constructive proposal to ensure that the compensation provisions work and that it is not made easy for a person convicted of a serious offence to actually mislead the court as to their true financial circumstances. The court is entitled to insist on the type of disclosure I am proposing. I hope the Minister will agree to this.

Miss Harney

I support the amendments in the name of Deputy Shatter as they make the position much clearer. I share Deputy Shatter's view that "means" is not a very precise word and means different things to different people. "Means" is assumed to be weekly income, in some cases gross income. When one is applying for various State benefits gross income rather than actual disposable income is taken into account. It varies and it does not take into account possible assets and other financial interests as Deputy Shatter said. The terminology used by Deputy Shatter is much clearer than that used in the Bill. I do not wish to delay the House because we have only 15 minutes left. I support the amendments in the name of Deputy Shatter. They are technical amendments but they make the position much clearer as to what is involved in calculating the payment of compensation or a possible review of the amount of compensation and I would ask the Minister to accept them.

Mr. O'Dea

I do not want to quibble too much about this because the difference between us is very slight. Deputy Shatter will notice that my amendment No. 9 deals with the matter in a different way, not only from the point of view of definition but rather in regard to what "means" encompasses where it appears in the Bill. The term "means" appears about five times throughout the Bill whereas the new definition proposed by the Deputy to replace the term "means" would apply only in the two places suggested by the Deputy. I do not think there is any great difference in substance between the two definitions. In fact, I would tend more towards the Deputy's definition because I want to ensure that capital assets are taken into account. I do not think any great difficulty will arise in practice — the Deputy will be more aware of this than I am — because of the procedure for an examination order. The legislation covering that refers to the person's means. We are familiar with statements and means for the purpose of determining what instalment order is to apply and I think all financial assets are taken into account. I have no problem in changing the definition but I am sure the Deputy will understand the reason I cannot accept his amendments as they stand.

In relation to the Deputy's more substantive point concerning the court requiring a convicted person to make a full disclosure by way of affidavit the Deputy will note that Committee Stage amendment No. 15 in the name of the Minister states:

.... the court may require the convicted person or his parent or his guardian, as the case may be, to give evidence as to his means and financial commitments.

The official amendment is only slightly different from that of the Deputy's amendment on Report Stage. The only change of any substance is that the disclosure need not be made in all cases by affidavit. There would be situations where that procedure might be unduly formal. I will undertake to change the definition of "means" once I can change it in all five places where it occurs. In fairness, the case the Deputy is trying to make in amendment No. 8 is met to a large extent by Committee Stage amendment No. 15.

Mr. Shatter

I thank the Minister for his constructive reply and welcome the fact that he will take on board the concept of financial circumstances and capital assets and that they will be dealt with consistently throughout the Bill. The fact that I did not notice that the word "means" appears elsewhere in the Bill is symptomatic of the rushed way we have had to deal with Committee and Report Stages of this Bill.

I take the Minister's point in relation to Committee Stage amendment No. 15. Perhaps what we need is an amalgamation of my amendment No. 8 and Committee Stage amendment No. 15 which is what the court may require the convicted person or his parents to give evidence as to means and financial commitments. My problem with that is — and we are all people of the real world and have seen these things happen — that at the end of a trial when a conviction is recorded a parent of a convicted offender will be put back in the witness box and asked to give oral evidence about their finances and the court will have no power to compel them to produce bank accounts or any other documentation.

It is mainly envisaged that this procedure will be applied in the area of serious offences. I believe there will be a huge temptation on the part of convicted persons not to tell the truth. They may simply decide to take a vow of silence on that issue. In addition, it may be virtually impossible for a court to check the truthfulness of what it is being said about means unless some procedure is put in place which, in advance of the matter being heard, requires disclosure by way of documentation of a person's financial position, documentation which may authenticate what may be said in oral evidence. It may very well be that that would be an unnecessarily complex procedure to undertake in minor cases. However, a judge or jury, having convicted someone of an offence which comes under this section should, at the very least, have the power and discretion to order, before determining sentence, that an affidavit detailing a person's finances be lodged in court. This would enable the judge to consider a person's financial circumstances and decide what authenticating document was required. I do not think the Bill provides for such a procedure at present, and my amendment would allow for this.

I am not clear — the Minister might enlighten me on this — as to who will cross-examine a person at a trial about their finances if there is a doubt about the truthfulness of what is being said — if someone has been economical with the truth, if not having deliberately lied — in the context of the evidence given about their finances, as the Minister envisages, or in the context of the information on the person's financial circumstances contained in the affidavit or court document filed in advance. Will the prosecuting counsel cross-examine or will counsel stand back from the issue if the person is not independently represented? Will the judge carry out the cross-examination and, if so, to what extent will he do this? I am not sure how this system will work in practice in truly discovering the state of the finances of someone who has been convicted.

An Leas-Cheann Comhairle

As we are on Report Stage, the Deputy's contribution concludes the debate on this amendment.

Mr. Shatter

Perhaps the Minister could be given some leeway to respond as we did not reach this point on Committee Stage.

An Leas-Cheann Comhairle

The Minister must be very brief.

Mr. O'Dea

It is envisaged that the judge will carry out the cross-examination. I take the point the Deputy has made about full disclosure as opposed to evidence. I do not want to unduly over formalise the procedure so perhaps it can be changed between now and the debate in the Seanad to leave discretion to the judge as to how he thinks the requirement in regard to full disclosure can be met.

An Leas-Cheann Comhairle

Is the Deputy pressing his amendment?

Mr. Shatter

In view of the Minister's comments and his willingness to look at this matter again, I will withdraw my amendment.

Amendment, by leave, withdrawn.

Amendments Nos. 7 and 8 not moved.

Mr. O'Dea

I move amendment No. 9:

In page 8, between lines 18 and 19, to insert the following:

"(13) In assessing for the purposes of this section the means of a person, the court shall take into account his financial commitments.".

Amendment agreed to.

Amendment No. 10 not moved.

Question: "That the Bill do now pass" put and agreed to.