Seanad Éireann díospóireacht -
Wednesday, 1 Jul 1992

Vol. 133 No. 11

Criminal Evidence Bill, 1992: Second and Subsequent Stages.

Question proposed: "That the Bill be now read a Second Time."

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

This Bill amends the law of evidence in criminal cases in several important respects. First, it makes admissible in evidence certain documents, including computer printouts, compiled in the ordinary course of a business or in the administration of a public service. Second, it makes it easier for witnesses to give evidence in cases involving violence or sexual abuse. Third, it sets out the law about the competence and compellability of spouses and former spouses of accused persons. It also allows unsworn evidence to be given by persons under 14 or mentally handicapped persons provided they are able to give an intelligible account of matters relevant to the proceedings. And it abolishes the present obligatory warnings to be given to a jury by the trial judge about the danger of convicting on the evidence of a child, leaving the giving of a warning to the trial judge's discretion.

These amendments are broadly in line with the recommendations of the Law Reform Commission in various reports. I refer to the reports on receiving stolen property, child sexual abuse, sexual offences against the mentally handicapped and the competence and compellability of spouses of accused persons.

Part II of the Bill makes a number of exceptions to the rule against hearsay so far as documentary evidence is concerned. There are many such exceptions at present of which, perhaps, the most important are confessions by accused persons and certain public documents. In general, our criminal procedure excludes documentary evidence partly because it is unsworn but also because it cannot be made the subject of cross-examination. This exclusionary rule applies to the defence as well as to the prosecution but it is the prosecution that has been most hampered by it, particularly when endeavouring to prosecute offences such as fraud and receiving stolen property where documentary evidence is particularly relevant to a successful prosecution.

The provisions of Part II will be of considerable help in this respect. It makes admissible any documents that come within the scope of section 5. These are documents that, in general, have been compiled in the ordinary course of a business. The term "business" is given a wide meaning. It includes businesses outside the State, such as banks, which might be unwilling to release officials to prove the contents of documents orally. It also includes public administrative bodies here and abroad. For the documents to be admissible, the information in them must have been supplied by someone who had personal knowledge of the matters they deal with or who can reasonably be supposed to have had it.

There are a number of exceptions. Documents that are already privileged for disclosure, such as a lawyer's advice to a client, are an obvious one. Also excepted are documents prepared in contemplation of legal proceedings, such as witness statements, because of the risk that they may not be reliable.

However, the Bill does include a number of documents connected with criminal proceedings whose inclusion can be justified on public interest grounds. The first relates to a sworn statement made by a non-resident — typically a tourist — who has been the victim of a crime and who has to leave the country before the offender is arrested. The statement must be sworn in the presence of a district justice and will only be admissible if the tourist has died in the meantime or if it is not reasonably practicable for him to attend at the trial. I think the House will welcome any measure such as this that will make it easier to bring to justice those of our citizens who prey on visitors and regard them as soft targets.

I should digress at this point to say that we are taking the opportunity presented by the Bill to authorise criminal courts to take evidence from abroad by live television link. This provision, in section 29, will further facilitate tourist victims of crime in giving evidence.

There is a further category of documents prepared for the purposes of criminal proceedings that section 5 makes admissible. This is a miscellaneous category and it deals with a number of what could be called records of an inherently reliable kind, such as maps, plans, records of directions given by Garda officers, records of handling exhibits and records of medical examinations.

As a result of representations during the debate in the Dáil, specific provision has been made in the section to make a birth certificate evidence of parentage. Such a certificate is also admissible under section 5 (1), subject to proving that it complies with the conditions of admissibility spelled out in that provision, but there is an advantage in making the certificate expressly admissible, particularly in incest cases.

This Part contains a number of safeguards to ensure that the basic fairness of procedures guaranteed by the Constitution is preserved in relation to criminal trials. Advance notice is required to be given to the other party to the proceedings whenever it is proposed to tender documentary evidence so that that party can object to the admissibility of the evidence before the trial. In that event, the question of admissibility will be decided upon by the trial judge on the basis of oral evidence being provided that the conditions of admissibility mentioned in section 5 apply to the documents, that is, that they were compiled in the ordinary course of business and so on.

Even assuming that the documents are held to be admissible as coming within the scope of section 5, the court may decide that it would not be in the interests of justice to admit the evidence, for example, because there would be a risk of unfairness to the accused by reason of his not being in a position to cross-examine the person who supplied the information contained in the document. If the court does admit the evidence, it will, in the same way as it does with oral evidence, assess the weight to be attached to it. Section 8 gives guidelines for the court when deciding whether to admit documentary evidence and what weight the evidence should be given.

This procedure may seem complex and so it is, but that is how it should be in any case where the documentary evidence is seriously challenged. Otherwise fairness of procedures would not be observed. I would expect that in the normal case documents that are clearly authentic will be accepted and that unmeritorious challenges to them will be discouraged by the courts.

Part III of the Bill makes it easier for young persons and other vulnerable witnesses, such as those with mental handicap, to give evidence in cases involving violence or sexual abuse. Giving evidence in court, in the presence of the accused, with all the formality associated with a trial, is an ordeal for most people but it can be traumatic for witnesses in these particular cases and can result in prosecutions either not being taken or failing because the witness has broken down.

The remedy adopted for this situation in several countries has been to provide for evidence to be given by live television link, and that is what is proposed in Part III. The witness will sit in a separate room and her — it will usually be her — answers will be conveyed to those in court by a number of monitors. She will only see the person — judge, counsel or solicitor — who is speaking to her at any given time.

The Bill recognises that even with this system there may be cases — say where a child is very young or nervous — where it would be necessary for questions to be put to the child through an intermediary. The intermediary will be appointed by the court and must be someone who is in the court's opinion is competent to perform this function. Section 14 makes it clear, in effect, that the intermediary may either repeat the questions as they are asked by counsel or convey their meaning in words that are appropriate to the child's age or state of development.

When an intermediary is used, the witness will not see or hear anything going on in court but those in court will hear the intermediary relaying the questions and see and hear the witness answering them. The judge will have a separate monitor covering the whole of the witness room. This is an entirely new technique in criminal procedure and it will require full co-operation — which I have no doubt will be forthcoming, as it has been forthcoming in other jurisdictions — from the judges and lawyers concerned.

The Law Reform Commission was convinced that such a reform is necessary if justice is to be done in cases of child abuse and the Government fully agreed with its recommendations in this respect. We are talking here of very young children who can give an intelligible account of events but who simply would not be able to face questioning by strange people, even with a monitor and even without the wearing of wigs and gowns. If we do not have someone interposed between the questioner and the child in these particular cases, we are conferring a degree of immunity on child abusers.

I should add that in the Dáil the provision in section 13 allowing witnesses under 17 and those with mental handicap to give evidence through a live television link was extended to any other witnesses in sexual and violent cases, provided the leave of the court is first obtained. It may be that the extended provision will not be brought into operation until there has been some experience gained of how the system operates with the under-17s.

Money has been provided this year for equipping three courtrooms in the Four Courts with the necessary facilities and for providing a witness room and waiting room in the vicinity. I expect that the equipment will be in place by next October. There is provision in the Bill for the transfer of cases to those courts from any Circuit or District Court district in the country.

Part IV of the Bill is concerned with the competence of spouses and former spouses of accused persons to give evidence and it also sets out the cases in which they may be compelled to give evidence. At present there is a great deal of uncertainty both as regards their competence and compellability.

Section 21 makes spouses and former spouses competent in all circumstances, whether for the prosecution, the accused or a co-accused. As regards compellability, they will be compellable at the instance of the accused. A spouse will be compellable for the prosecution only for an offence involving violence committed against that spouse or for such an offence or a sexual offence committed against a member of the family. That is the law as settled by the Court of Criminal Appeal in 1988 in the JT case, but the Bill makes a spouse also compellable in the case of a violent or sexual offence committed against any person under 17. Former spouses will be compellable in all cases for the accused or a co-accused and also for the prosecution, unless the offence took place while the spouses were living together and the offence is one for which a spouse would not be compellable. Of course, a spouse who is jointly charged with the other spouse cannot be compelled to give evidence for the prosecution and the necessary saver is included at section 25 of the Bill.

These, again, are somewhat complex provisions but this is largely due to the need to achieve a balance between the protection of the institution of marriage, as required by the Constitution, on the one hand, and, on the other, ensuring that domestic violence and sexual offences against members of the family and other children are not left unpunished.

The remaining Part of the Bill — Part V — contains a number of important provisions. I have already referred to section 29, which allows evidence to be given from abroad through a live television link. Section 27 allows the court to accept unsworn evidence from a child under 14 or a person with mental handicap if the child or person is capable of giving an intelligible account of events. Section 28 abolishes the present obligatory warning to a jury about the danger of convicting on the evidence of a child and leaves the matter to the court's discretion.

Some disquiet was expressed in the other House and by the Law Society about these provisions, which give effect to recommendations of the Law Reform Commission, and particularly about the abolition of the obligatory warning. I would point out that all that is being abolished is the obligation to warn the jury in every case. It will be a matter for the judge, in his discretion, to decide whether to give a warning but he has a constitutional duty to ensure basic fairness of procedures and his discretion can only be exercised in conformity with this constitutional duty.

Finally, I want to say that this is not a party political Bill and it has been approached on that basis in the other House. I look forward to an equally constructive approach from Senators and I, for my part, can assure them that I will give most careful consideration to any views they may express in the course of the debate.

Our joint objective is to ensure that we make this Bill workable and produce the best Bill possible. I received and accepted a number of very constructive amendments on Committee and Report Stages in the Dáil and I look forward to an equally constructive approach and debate here in the Seanad.

Mr. Neville

I welcome the Bill. Its presentation to the House and to the Oireachtas is long overdue. It is an important Bill, in view of the growing evidence of violence and sexual abuse against the most vulnerable in our State. It is important that legal procedures ensure that the culprits are brought to justice as far as possible. It is important that structures are in place to ensure that the victims of abuse and sexual violence — the children and mentally handicapped — are in a position to expose the evidence and to give the facts without the level of intimidation that exists in our court procedures. These procedures are intimidating even to people of mature years and at all levels of society. Children and mentally handicapped cannot cope in a dispassionate way and expose the truth. In many cases they are asked to do so in intimidating circumstances, often in front of people whom they know and members of their own family.

This Bill makes a fair effort in altering the court procedures to allow such people not to fear the court and tell the truth as they see it. The spirit of the Bill in this regard should be generalised to all court procedures. The Minister has made various comments about some of the archaic practices in our courts, and I welcome his reforming views. It is archaic that spouses, or former spouses, of accused people are considered to be incompetent and not compellable to give evidence where there is sexual abuse of members of the family and violence within the family itself. This is highlighted in situations of severe physical and mental violence against women and children.

The perpetrators of such violence should be subject to the full force and vigour of the law and nothing must inhibit the full facts being laid before the courts. Part IV of this Bill endeavours to do this and in this regard, we must welcome it.

Business organisations and methods of operation have changed dramatically over the last quarter of a century. With this has developed a thriving business in white collar crime. The Garda Síochána are severely handicapped by our laws of evidence in bringing to justice the people who commit such crimes. The making of business records — and there are adequate safeguards in the Bill — such as computer records, etc., admissible as evidence will improve the situation but much more will have to be done. A start has been made in this Bill but much more must be done to ensure that the perpetrators and those who commit white collar crime are brought to justice. My party have done much work in this area and have a document on the need to control white collar crime.

Crime against tourists and those who visit our country is one of the meanest and more despicable actions of our criminal community. Perpetrators of such acts know there is litle chance of their being brought to justice because the victim has left the country and is not in a position to bring evidence to court or, more correctly, these cases are shelved because the Garda know these people will not be available to give evidence.

The introduction of a system whereby visitors to this land of a thousand welcomes who are assaulted or robbed can give sworn evidence in the presence of a district justice before leaving the country and which is admissible in court, will assist to improve the conviction rate for such cowardly crimes. I would ask the Minister if there is a procedure for cross-examination of the evidence given by a witness in front of a district justice which is later admissible in court. The fact that victims can now give evidence through a live television link-up — a sensible use of modern technology — and that witnesses will be cross-examined by way of a television link-up, is to be welcomed. I also welcome the introduction of this system which brings some semblance of justice to the area of tourist crime and endeavours to control this dastardly criminal activity against our visitors. It is too much to expect that we can eliminate such crimes; the best we can hope for is to control it. In view of the fact that our crime rate last year increased by 8 per cent, and indications this year are that there will be a similar increase, our visitors are bound to be at risk.

The Bill before us, like similar Bills that have come before the House, has its origins in the report of the Law Reform Commission Consultation Paper, No. 32 of August 1990. This sets out proposals for eliminating the outdated paraphernalia of our courts. It is recommended that wigs and gowns be abolished. I know the Minister has expressed views on this matter which we welcome, and perhaps he will use this occasion to comment further. I fail to understand why barristers are still, as we enter the 21st century, forced to wear wigs while serving in our courts by order 119, Rule 3 of the Rules of the Superior Court. Many barristers would choose not to use such apparel if the choice were theirs. It is silly and inappropriate that women barristers are asked to wear male apparel to undertake their work in our courts.

Wigs became popular for men in 1624 because King Louis XIII of France chose to wear one. As a result, wigs became a distinctive class symbol for over a century. With the French and American Revolutions of the 18th century, the spirit of equality that prevailed at the time swept away the wearing of such wigs. It is sensible in this age to abolish wigs and gowns in our courts. I welcome the Minister's expressed views on the matter and hope that the advocates in our courts will look the same as the rest of us and that this outdated system of wearing wigs and gowns will be abolished. Senator O'Donovan agrees with the idea, being a solicitor, although he would not need false hair.

Mr. O'Donovan

You never know.

An Cathaoirleach

We will leave personal remarks for somewhere else.

Mr. Neville

There is growing concern at the level of violence against children and mentally handicapped people. In 1984, 88 allegations of child sexual abuse were reported; in 1989, five years later, 1,241 cases were reported. This is a startling figure and I believe only touches the surface of the problem. I believe that, because we have now a more open society and are more prepared to discuss this problem, children and family members are more conscious of the evil of such vile acts and are more prepared to report them to the authorities.

We must welcome and encourage such developments. We must carry out more research into the whole area of child abuse and child violence. We must try to discover the real level of child sexual abuse, because I believe we have only touched on the problem. The statistics of reported crime from 1985 to 1988 indicates that there has been an increase. We must try to establish why such abuses happen and develop/anti-child sexual abuse programmes.

I want to refer to an excellent report on violence against women drawn up by the Mid-Western Health Board, Adapt House in Limerick and the Policy Research Centre of the National College of Industrial Relations. It is in two volumes —"Breaking Violence in the Home" and "Seeking Refuge from Violence". Having read it, I consider it is a revealing report and shattering in many ways. It would be an excellent document if we were discussing violence in the home; this is called "domestic violence". The word "domestic" often softens our view of it. This report is a shocking relevation of extreme violence against women. While I agree there is violence at different levels, the people involved in this report and in this research were in Adapt House Limerick, a refuge for women and children who have experienced violence and are forced to leave the home.

If we carry out similar reseach into sexual abuse on children and violence against children and the mentally handicapped, it would be a means of opening the subject, investigating it, learning to understand it, correcting the situation and educating the victims and perpetrators of violence about the need for help and assistance.

The report draws up a profile of the women who use the Adapt refuge but not the men who perpetrate of violence against them. The profile describes these women in terms of their background, age, martial status, number of children and socio-economic circumstances. By providing essential information on characteristics and patterns of usage among the women who use the Adapt refuge, the first study enables key issues to be identified relating to effective policymaking and intervention strategies. These key issues are further explored in the second study based on indepth interviews with a sample of the women from Adapt.

The report of the second study describes the development of violence in intimate male/female relationships, the nature and pattern of the violence experienced, the impact violence has on its victims and the nature of the help sought and the kind of agency response obtained. This second report also includes a detailed review of previous research carried out in the area of violence in the home. It is an excellent report and should be a basis for further reports. Similar research should be carried out in the area of child abuse and child sexual abuse. We need to know the level of such sexual abuse in the home and why it happens. We need an indepth analysis of cases of child sexual abuse and proposals to deal with the problem. We need proper therapy programmes for dealing with children who have experienced sexual violence.

There is strong evidence of a cycle of violence, that people who experience violence as a child become violent when they enter a relationship with their married partner. We must endeavour to break this cycle of violence. We need to carry out research and provide therapy for people who are experiencing violence and sexual abuse. There is evidence that with proper therapy and proper psychological help children can learn to break this cycle of violence and be treated for the trauma they experience.

The law must take its course against the perpetration of physical and sexual violence in the home which is known as domestic violence. I do not like the term "domestic violence" because it softens it. Some of the information in this report would make some of the violence on the streets look tame in comparison with the extreme nature of violence perpetrated against some of the women.

The intention of the Bill is to allow a child to feel at ease when giving evidence and enable him or her to recount the events as they occurred in their own way and to enable the truth to be revealed in a relaxed and non-intimidating fashion. The use of TV linkage is important in that it allows evidence to be given outside the precincts of the court. The child should be removed totally from the precincts and the atmosphere of the court to a different building; some would say we should remove them from the court for their own physical safety because of the conditions of some of our courts but this is a debate for another day.

Where video contact or TV contact is being made and evidence is given how well does cross-examination operate? Will the defending solicitor or barrister be in a position through the medium of television to actually cross-examine the child's evidence? I presume that will be the case although it is not explicitly stated in the Bill. Some concern has been expressed about this but one does not know how it will operate until we see it in action. I would like to hear the Minister's view on how the cross-examination of witnesses will operate in practice. Given that we accept that evidence should be given by children through the TV link, that facility for the giving of evidence should also be allowed for all victims of rape and sexual abuse.

The giving of evidence by a person who has been raped or sexually abused is a traumatic experience. In too many cases the accused is known to the victim, and in some cases can be a member of the victim's family or a family friend. This increases the stress felt by the victim in giving evidence. In all cases the victim must be physically present in the courtroom which is most intimidating for a person who is giving evidence and is being cross-examined in the case of a rape or a sexual assault. The proposals in the Bill providing for live linkage in giving evidence, with the witness separated from the confines of the court, should be extended to women who are giving evidence in cases of sexual violence and rape.

I do not understand why a woman over 17 years of age, who finds it an appalling experience to have to walk into the intimidating atmosphere of the courtroom and give evidence while being watched by the person who raped her, cannot give the evidence through television also. Anybody who has experienced this — and I have discussed it with a few — finds it most traumatic to face the person who has attacked or raped them and to give evidence in his presence. If it is justifiable to allow a person of 16 years of age give evidence through a video link, surely it is justifiable to allow a person of 18 years of age a television link in the cases of sexual abuse and rape?

While we welcome the approach of removing the intimidating atmosphere in giving evidence, we must ensure that in our zeal to protect children and girls we do not create a situation where the presumption of innocence until the person is proved guilty — which is the cornerstone of our judicial system — is not reversed to a presumption of guilty. A person must always be presumed innocent until proved guilty. The person must not be assumed to be guilty as soon as anyone makes an accusation of sexual abuse or rape. Cases arise from time to time where false allegations are made. This has been know to happen especially in family disputes where a spouse alleges sexual or other violence against a partner to obtain custody of the children. We must ensure that our system, while attempting to protect children and women, does not interfere in any way with the principle that a person is innocent until proved guilty in our courts. Otherwise, we could have serious miscarriages of justice which would result in persons being committed to prison for acts they did not commit.

Part IV which deals with the competence and compellability of spouses and former spouses to give evidence is long overdue. It is time we moved away from the outdated 19th century concept in the case of the offences outlined in the Bill. It will assist in obtaining convictions in cases of family violence.

White collar crime has been a growth area for some time. This problem has not been addressed properly in the past. The Garda Fraud Squad have been denied the resources and the expertise to deal with it. Consultants in accounting, management and the legal profession should be available to the Garda in their efforts to investigate and combat white collar crime. Until this is done, we are not serious in trying to tackle the growing level of white collar crime. We must give the necessary resources to the Garda to ensure that people in white collars and three piece suits are subject to the same rigours of the law as all who engage in illegal activities.

I note the statement and the concerns of the Director of Public Prosecutions, Mr. Eamonn Barnes who, in a speech in February 1991, addressed the inadequacy of the Irish criminal justice system in coping with the whole area of serious fraud.

We welcome Part II which allows for the use of modern documentary evidence to be admitted during criminal proceedings. We look forward to its speedy introduction into law and the necessary ministerial decisions in introducing the various sections of the Bill. There have been criticisms especially of the Child Care Act and the failure of the Minister for Justice to introduce the necessary ministerial order.

Finally, I urge the Minister, when the Bill is enacted, to proceed as quickly as possible to make the necessary ministerial order, so that the legislation will be available to the courts and to the people responsible for bringing prosecutions.

Mr. O'Donovan

I welcome the Minister of State at the Department of Justice, Deputy O'Dea, to the House and compliment him, the Minister for Justice, Deputy Flynn and the staff of the Department in producing this Bill and bringing it before the House so quickly.

The fact that the final report of the Law Reform Commission, on which this Bill is based, was not published until September 1990 augurs well for the speed with which this matter was dealt with — the Bill was introduced within 18 months to the Dáil. A compliment must be paid to the Department and the Ministers for acting so promptly.

As the Bill states, we are dealing with criminal evidence and the amendments proposed are confined to criminal law rather than civil law. The Bill can be categorised into three main areas. First, making admissible in evidence information contained in certain business and administrative documents, such as computer printouts, etc. We are living in an age where computers are an everyday facility. Modern technology is such that the courts and the Department must move with the times. Computer printouts are an everyday occurrence. Most offices and administrations use computers in their day-to-day business. Even accounting systems are computerised. It is important that such documents, which hitherto would not be admitted in criminal cases, will now be allowed.

Second, the Bill facilitates the giving of evidence by people under the age of 17 and by people with a mental handicap of any age in cases of child sexual abuse and violence in the home, by allowing the evidence to be videotaped, by direct TV link or by an intermediary appointed and recognised by the court so that these people will not be intimated by the court system.

As pointed out by my colleague, Senator Neville, if an adult has to go to the District Court for a relatively minor offence like dangerous driving or drunk driving, he may be intimated by the court system. As a lawyer the courts are part of my life. A court appearance would be traumatic for a child of six, seven or eight years or for somebody with a mental handicap who for years may have been sexually abused in their home or beaten. In line with the Law Reform Commission Report and, this is the practice in European countries, in America, Canada and Australia, new facilities, such as direct TV link, video recording and the taking of evidence by an intermediary or official appointed and recognised by the court will be used.

I congratulate the Minister on his announcement that the direct TV link in the Four Courts will be in operation by October. Coming from the south I recommend that this operation be extended nationwide as soon as possible to Cork, Galway, etc. It is important that other courts, apart from the Four Courts, would have these facilities and as time progesses and we see how they work, they could be extended to most circuit court centres.

Section 21 deals with the competence of spouses and former spouses to give evidence, sections 22 and 23 deal with the compellability to give evidence at the instance of prosecution; section 24 deals with the compellability to give evidence at the instance of the co-accused. The general rule of thumb was that, on the one hand, the Constitution imposed an obligation on us to protect the citizens and, on the other, the recognition that a marriage is a special circumstance where a husband or wife, or a former husband or wife, should not give evidence or be compelled to give evidence against each other in criminal cases. The Bill proposes in such circumstances that this provision be amended. I will elaborate on this issue later.

I would like to compliment and to put on record my gratitude to the Law Reform Commission for the excellent work they do in general, and particularly for the number of reports which led to this Bill. This Bill brings into effect recommendations relating to evidence in such matters as child abuse, domestic violence and other offences which, regrettably, seemed to become prevalent in our society in the eighties as statistics reveal an alarming rate of child abuse and domestic violence. Up to now because of our restrictive rules of evidence in many instances those people responsible for child sexual abuse and domestic violence, among other things, were unable to be brought to trial; and, if and when brought to trial, in many cases acquittals were easily obtained on technical and flimsy grounds.

Too often we hear of the rights of the criminals and the protection that must be given to such people brought before the courts on criminal charges. As a practising lawyer myself, I understand there has to be a balance and that a balance is sometimes difficult to achieve. There are many people who feel there is too much protection being given to the criminal, that they have too many rights, that a person accused of crimes — in many instances serious crimes —— gets off on technicalities and that our justice system is more in favour of the criminal than the victim. According to Article 43 of our Constitution, there is a duty on the State by its laws to protect as best it can all our citizens from unjust attack. This Bill tries to ensure that we protect the most innocent people in our society, children, people under 17 years of age and people with mental disabilities etc.

The Bill also deals with areas such as receiving stolen goods and the competence and compellability of spouses as witnesses in certain cases. As the law stands, there are serious encumbrances as far as children are concerned as witnesses in prosecution cases. Particularly in the area of physical or sexual abuse, the child may be seen as too young to give evidence or may be intimidated by the appearance of lawyers wearing wigs and gowns, by the overcrowded courtrooms, people in uniforms, etc.

I fully concur with my colleague, Senator Neville, when he states that the day has come to do away with the wig and gown and the undue formality attaching to courts, certainly as regards children's courts, and such matters covered here where children may have to give evidence. The Bill deals to a large extent with this and must be welcome. It may be a step towards getting rid of the wig and gown formalities, as far as barristers are concerned in the not too distant future. I feel it serves no great purpose and I share Senator Neville's views that it is a matter the Minister and his Department might look at for the future.

The proposal in this Bill is to allow children to give evidence without too much red tape and cutting out of the drama of courtrooms. After all, the prime objective of any prosecution or of any system of justice is to ensure that as far as possible justice is done. As far as children are concerned, or indeed mentally handicapped people of any age, formalities, courtroom dramas and red tape should as far as possible be set aside, and this is proposed in this Bill. The Law Reform Commission in their report and the extensive research they carried out also looked at the situation in other European countries. It is noteworthy that the final report of the law commission in the area of child sexual abuse, among other things, was published in September 1990. As I said already, I think the Government and the Minister have acted with great diligence in bringing this Bill before the Houses so quickly.

Part III of the Bill provides for a person under 17 to give evidence by live television link in cases of sexual abuse or physical abuse against children. This is a new and welcome development in the circumstances where child abuse is a growing perversion in our society. As my colleague, Senator Neville, said, the full statistics are not really known and we may be only hitting the tip of the iceberg. We have to take special steps to protect the weaker people in our society, the young and the mentally handicapped.

In appropriate cases questions to such witnesses as children may be conveyed through a competent person or an intermediary appointed and recognised by the court. This is important, because in some of the debates in the Dáil it might have been suggested that any person could go in willy-nilly and question a young person who had suffered the trauma of sexual abuse. That is not the case. The person or intermediary appointed will be one recognised by the court and will be a competent person. The Bill also specifically states that while giving evidence no wigs or gowns will be worn. Again, this is an endeavour to ease the situation for the witness who, most likely, will be a child. It also provides for evidence to be given by way of videotape. Again, the judge will have a discretion as to whether the tape can be allowed in full in evidence, partly allowed or, in the case of an objection being raised, it may be totally disallowed.

It is important to note that the judge has a discretion. From personal observation I am of the view that because of our excellent education system and so on, children seem at a younger age to be much more intelligent and more capable of understanding. I think that now a child of nine or ten is probably more intelligent, more aware and more up to date than, say, I was when I was 12 or 13 years of age. My six-year old son has computer games and he can do practically anything with them. When I was his age we did not have them, but I feel that children now at the age of eight, nine, ten or 11 years of age are more aware of what is going on. They are more up-to-date in technology and so on than we were at that age. Under the old system a child giving evidence had to go through the trauma of understanding the meaning of taking an oath. The criterion was that the judge would have to ascertain whether they were capable of telling the truth, distinguish between truth and lies, etc. These formalities were often intimidating to young people. The decision now is that the judge can decide in a given case if a child, who may be as young as six or seven years of age can in simple language understand what is going on and if they are intelligent enough to give their evidence. The judge has discretion there. They do not have to be brought in, asked if they understood the oath and go through all these formalities. This is a welcome development.

In a nutshell, the rules of evidence and our system of justice have completely underestimated the ability of children to give evidence, understand the truth and deal with testimony when questions are posed in a way appropriate to their stage of development. The Law Reform Commission have guided us down this road. For many years practising lawyers, the system of justice and the State were of the opinion that children had not a clue how to give evidence and could not comprehend matters. We are now accepting in this Bill that that is not the case and that in given circumstances a child of six or seven years, or maybe even younger, can in their own manner give a truthful explanation of a certain scene, whether it is in the home in relation to violence or child abuse, that can be comprehended and the judge has the discretion to accept this for what it is worth. That is an important step.

In criminal proceedings up to now the judge was obliged to warn the jury that the conviction of an accused person before the court by the uncorroborated evidence of a child was not safe. Now, as the Minister rightly pointed out earlier, this has to some extent been set aside; but what is important is that the judge still has the discretion. The judge may still direct the jury. If he feels that the evidence of the child may be unsafe he may direct the jury in a certain way, but the obligation on the judge has been removed. If the judge feels that the child, or perhaps a mentally handicapped person, has given their evidence in a fair way, then he has the discretion not to issue this warning to the jury. This must be welcomed.

Like my colleague, Senator Neville, I think sexual abuse of children has been underestimated for many years. Our archaic rules of evidence have been built up from the 12th, 13th and 14th centuries to the present day. Even though they have been updated from time to time there is still room for improvement. It is not very long ago since there was a case in Waterford — this was referred to in the Dáil — where for a frivolous and technical reason a person accused of serious charges of sexual abuse went free from the court. I understand that one of the proofs then required was that a birth certificate proving that a particular man was the father of a child would not be allowed in evidence. Arising from representations in the Dáil, that situation has been amended and now a birth certificate will be taken for what it is worth as prima facie evidence of what is stated on it. I think that is an important step.

If we look at statistics in relation to how many children phone Childline about physical or sexual problems in the home, it is now accepted that many children — some as young as five years of age — use this method to highlight their problems. This indicates the necessity for us to proceed with vigour and haste to ensure that the terrible trauma and crime of child sexual abuse can be done away with.

The second purpose of the Bill is to set out clearly the circumstances in which a spouse, or former spouse, of an accused person is competent and can be compelled to give evidence. An example is that the Bill varies somewhat from the recommendations of the Law Reform Commission in this regard. I understand the Law Reform Commission in their report wished the status quo to be retained, whereby the spouse would not be compelled to give evidence against the other spouse in a criminal charge. However, it should be noted that when this recommendation was made by the Law Reform Commission the case known as The People v. J. T. had not been dealt with. In this case the court held that any provision that a wife was not a compellable witness in charges against her husband on sexual assault on his daughter would be unconstitutional. Consequently, and prudently as far as the Government, the Minister and his officials are concerned, they have now decided to act on this High Court decision and have taken cognisance of this very important decision in the Bill, so that the wife of an accused is compellable to give evidence in the case of domestic violence or sexual offences against a child of the marriage. It should be noted, however, that these are the only instances where a spouse of an accused can be compelled to give evidence for the prosecution.

The position of former spouses is also set out and they will be compellable for the prosecution in the same way, except where the offence in question was committed during the period of the marriage and whatever kind for which a spouse would not be compellable. It provides that the spouse of an accused will be compellable for the prosecution and accused only in cases of violence or sexual offences. It is in these narrow categories that a spouse can be compelled to give evidence, but will be compellable for the accused in every other case. The differentiation here is that the accused may force their spouse to come into court to give evidence in relation to such an event and only in very certain circumstances can the prosecution or the DPP compel the spouse to come in, and these have been set out clearly in the Bill.

Part II of the Bill deals with documentary evidence. This recommendation is again based on the report of the Law Reform Commission. These provisions would be vitally important in the attempt to prosecute offences such as fraud or what is now known as white collar crime. The new proposals put in place remedy deficiencies in our criminal procedures caused by the fact that at present documents are not admissible as evidence. There is at present no provision for the allowance of computer print-outs and such records, financial or otherwise. Having regard to the important part computers play in our modern society, in administration and in commercial business, this amendment is prudent and welcome.

However, in case one thinks we are going too far, the Bill has built into it certain safeguards in regard to the introduction of documentation evidence. For example, if it is proposed by the prosecution or by the accused person to tender documentary evidence in a trial, the Bill clearly sets out that 21 days notice must be given to the other party. They must be informed of the intention to introduce a computer printout, or certain documentary evidence, such as a birth certificate, a map or a Garda Síochána report. Then the other party can come back and, provided they do so within seven days of the trials they can lodge an objection. If such an objection is received, then the prosecution can decide to summon the witness to the court to give evidence viva voce or by direct verbal evidence. In other words, if we are warned that this documentary is not to be accepted for one reason or another, or that part of it is not to be accepted, then the prosecution, by being alerted to this can bring the witness before the court to give direct evidence under oath.

Even with documentary evidence, it is important to know that the court has a discretion here also. The court also may require oral evidence to be given in any matter stated or specially given in relation to such documents. Section 8 sets out that no documentary evidence will be admissible by virtue of section 5 if the court is of the opinion that in the interests of justice the whole or part shall not be admitted. The court, in their discretion, can decide that in the interests of justice a certain document, or part of a certain document, or paragraphs of a certain document, may not be admitted. This section sets out the consideration and criteria the court must have regard to in reaching decisions on this point. In a nutshell, the admissibility of documentary evidence will be a decision for the court in any trial; and if in the interests of justice it ought not to have been admitted, then it is the court who shall decide in the circumstances of any given case what is to be admitted or not admitted.

I commend the Law Reform Commission on their recommendation in relation to receiving stolen property. These provisions will be vitally important in the attempt to prosecute offences such as fraud or white collar crime.

This Bill has followed closely the recommendations of the Law Reform Commission in a number of areas and I compliment the Minister on that. One example was the birth certificate issue. Another was the extension of the television linkage — not necessarily confining it to those under 17 or the mentally handicapped but to cover, say, a case where a woman has been severely sexually abused, raped etc. In other words, evidence by television link to the court may now apply to people beyond the age of 17, which was originally envisaged. I have read and studied the debates in the other House where the Bill was welcomed by practically all parties. The Minister and his Department in a number of vital areas, have accepted recommendations and brought in amendments which are incorporated in the Bill before the House here today.

This is an excellent piece of legislation. It is an important step, particularly for the protection of the young, the less well off and for the mentally handicapped in our society. The manner in which this legislation was brought before the Dáil — and this must not be forgotten — within 18 months of the final report of the Law Reform Commission indicates the concern of this Government in relation to reforming legislation. I have pointed out in previous debates that much new legislation under the heading of justice has been introduced in the last two or three years. I believe that this Government and the Department of Justice are concerned. I trust that they will continue to bring important reforming legislation before this House while this Government lasts, hopefully for another two years.

Mr. Costello

I welcome the Minister to the House and belatedly congratulate him on his appointment. I also welcome this Bill. I consider it very important and timely and I agree with its provisions. It is good to see proposals contained in the Law Reform Commission report being translated into legislation brought before the House. That is what should be happening on a more regular basis. I am glad the Minister has presented this radical reforming Bill in the area of criminal evidence.

The major areas are outlined by the explanatory memorandum and in the Minister's speech. Probably what is most important is that the substantial items in the Bill are reflective of the developments that have taken place in this country and other countries in terms of advancing technology and matters that have caused problems in relation to evidence given by young people, and particularly in relation to evidence being given in cases which involve a degree of sexual abuse. All these measures are addressing real problems and this is what is important about the legislation.

In the first area we will now have admissible in evidential form information contained in business and administrative documents, including computer print-outs and fax material. This is a very important development to ensure that we can avail of the range of technological data to deal with problems, particularly problems relating to commercial fraud, various abuses in business enterprises, stolen property and so on. In the past, this has been the area most neglected by our criminal law in trying to solve the enormous problems in what is normally called white collar crime. It operates to an extremely large degree. We have great difficulty identifying the degree other than that which is estimated and computed by businesses themselves. We have only estimates or what is the view of Garda Fraud Squad, but it is unusual that such cases come before the courts because of the difficulty of dealing with them in evidence and ensuring that convictions can be obtained. Obviously, there is enormous scope for a new emphasis in the area of fraud detection and proceedings in the area where fraud may have occurred.

In that context, we have to think not only in terms of improving the evidence in documentary terms but also to ensuring that the Garda Force is adequately trained, resourced, staffed and with the proper focus to ensure that we can deal with this technological area. We have a Garda Fraud Squad. However, I have always considered it to be the Cinderella of the Force. This is an area where we have to call on the Minister to ensure that the resources are provided to improve the Garda technology initially in the detection of crime and the first requirement is to strengthen the Fraud Squad and ensure that the resources are provided.

In regard to the presentation of information, I am delighted that we can now avail of information on a live television link-up with a non-resident who may have been here as a tourist and has gone home but who had been the victim of a crime during their holiday. There was a lacuna in this area for many years where prosecution for crimes committed depended on the return of the victim to this country. This could be very expensive and invariably the visitor did not return. Therefore, a crime committed against a tourist generally went unpunished. It is an interesting departure that we can now ensure that there is a TV link-up with non-residents abroad so that evidence can be given.

We should be exploring more situations where we can assist people who have difficulty coming to the courts to present their information and their evidence. It is up to the court to decide how that information is admissible and the extent to which it is reliable.

Part III of the Bill deals with the new laws of evidence applying to young people in certain proceedings relating to sexual offences, offences involving violence or the threat of violence, an offence consisting of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence mentioned in paragraphs (a) or (b). Section 14 deals with where a person accused is under the age of 17.

This area has given rise to very big problems about how best to present evidence in what has become an increasing area of judicial concern — the area of sexual abuse of a young person, the validity of their evidence and the trauma of giving it in an open court. It is extremely important that the Bill should reflect those concerns and that young persons should be protected from having to participate in that hostile atmosphere and be, perhaps, intimidated and traumatised by the experience. There has been an increase in the number of sexual offences commited and therefore it is important that legislation be introduced to facilitate the witness in the stand.

Video recording of evidence, as provided in section 16, is a useful development. This has application throughout the criminal justice system at every level. It is as important in a Garda station where interrogation or questioning takes place as it is in being able to present evidence. The Minister might look into this.

While the Law Reform Commission have dealt with the video recording in terms of court procedure, the Ó Briain Committee and Martin Committee have dealt with it in terms of the taking of evidence in relation to the offence committed while a suspect is in Garda custody and that this technological development would also be extended for the benefit of the Garda and the accused.

In relation to section 14 and the giving of evidence through an intermediary, I would like the Minister to expand further on what is meant by that. How it is envisaged that a witness will give evidence through an intermediary? Will the intermediary be present in court, will they speak to the witness and come back into the court? What type of procedure is planned and what type of person are we talking about? What type of training will be given? Will they be social workers, companions, members of the Garda Síochána or employees of the court?

Section 18 deals with the question of identification evidence, where the witness through a live television link may identify a person accused of an offence. As regards the question of identification, we have the tried and tested format of identity parades. I wonder about the question of a person being identified at a distance by a witness in circumstances of this nature and whether a court appearance or an identity parade is necessary. It seems this will be a rather tenuous form of identification. Will the court accept it as a valid identification or what standing will it have in the court? I would like the Minister to elaborate on that.

In Part IV the legislation catches up with the social and political developments, that have taken place in society in recent years. I notice the expression "former spouses" is defined. In this country, of course, there is no such thing as a former spouse — once a spouse a spouse forever — but it is defined in respect of a person's marriage where a decree of judicial separation has been granted or a separation agreement has been entered into. Perhaps the words "includes a person" suggests that there are further categories. I am not sure what other category there could be until such time as the Minister brings forward a new amendment to the Constitution in relation to the divorce issue. That is the only way we will have a former spouse as such.

As regards competence and compellability, there are interesting and indeed radical new developments. Normally, defendants are male, and in the past they would have been almost exclusively male. The spouse in such circumstances would normally be the wife. In the past the wife would have been considered subservient to the male and in that sense not competent to give evidence. Wives were very much the chattel of their husbands and, therefore, their evidence could not be relied on in law. That was one of the faults of society in the past but the situation is changing rapidly and it is now accepted that each person is an independent person in their own right, capable and competent of making decisions and giving evidence in an independent fashion without being subject to the beliefs, wishes and admonitions of their spouse.

Society has changed and today a large percentage of people would not be married but would have a close relationship. In social welfare legislation the description is a common law spouse. People live together in stable or close relationships. People were married or they were not married in the past but today that has changed and the distinction that existed in the law is no longer necessary.

I welcome the provision enabling evidence to be given by spouses and former spouses even though I am not too happy with the definition of the wording or the interpretation. It reflects the progress that has been made and it incorporates it into the rules on the giving of evidence in court.

I am sure most of us received documentation from the Law Society regarding the dress of judges and barristers in court when dealing with cases. I read the Minister's comments in the Dáil debate and I heartily agree with him. We are introducing reforming legislation and we should ensure that the personnel who are the brokers in the judicial procedure in the courts do not intimidate people. If we are trying to ensure that people do not feel intimated by court proceedings and procedures and feel comfortable when giving evidence, then it is time we also looked at the dress of those who are the main court participants. From that point of view, wigs and gowns are long out of date. I would welcome a much simpler form of dress. We have taken the appropriate measures in our educational system. The attempt to distance those knowledgeable participants from the ordinary person, be they the defendant, plaintiff or witness, should be dealt with. Either we should eliminate the present sartorial mode or else ensure that a much simpler mode is introduced.

Representation has been made to me and, I am sure, to other Members from the Garda about their concern at reducing the retirement age from 60 years to 57 years. The effect they say, would be that by 1995 the Garda Force would have been reduced by 1,000 over a ten year period. The gardaí already have difficulty maintaining the level of detection in areas in which they were traditionally competent. With the new demands of this legislation and its implications, it will be much more difficult for them to expand their activities. They are concerned that the existing retirement age of 60 should remain in force until there is a commitment to recruit greater numbers to the Garda Force. I agree with that.

In the last two years we saw an upsurge in crime levels. As a representative of an inner city constituency, I am becoming more and more concerned with the levels of crime. Burglary is much more common and there are high levels of serious antisocial behaviour in the city areas which are largely due to increased levels of unemployment. While that is the situation, whether we like it or not, we will require a large Garda Force. It would be wrong for us to include provisions in legislation that will require greater Garda competence, numbers and resources while insisting on an earlier retirement age which would mean experienced members would have to leave the Force; and I am assured by the Association of Garda Sergeants and Inspectors, that they are loath to do so. The Garda are very concerned with that apparent compulsory retirement age.

I welcome the Bill. I am delighted to see such radical reforming legislation come before the Seanad. I wish the Minister well in putting the Bill through the House.

Mr. Mullooly

I join with previous speakers in the welcome they have given to this important Bill. The legislative changes in which this Bill provides for will facilitate the prosecution of crimes involving child abuse, domestic violence, fraud and attacks on tourists.

The Bill proposes a number of important changes in the law of evidence relating to criminal proceedings. The sooner these provisions become law and come into operation the better. In section 1 it is proposed that all the provisions, with the exception of Part III and section 29, will come into operation three months after the date of its passing. The remaining provisions — the provisions contained in Part III and section 29 — will come into opeation on dates to be fixed by order of the Minister.

Part III requires the installation of the necessary technical facilities in our courts before it can be brought into operation. I was pleased that the Minister said that money has been provided this year for equipping three court rooms in the Four Courts with the necessary facilities and for providing a witness room and a waiting room in the vicinity. He expects that the equipment will be in place by next October. That is welcome news.

I agree with Senator O'Donovan that it would be desirable if the installation of these facilities in provincial court rooms were expedited as soon as possible. I do not believe it would be desirable if cases for rural areas, particularly from areas far from Dublin, were sent to the Four Courts for a hearing. I hope the necessary technical facilities will be put in place in the various locations as expeditiously as possible. It is encouraging that some of these facilities will be in place by next October.

This is work which could be put in train immediately in anticipation of the passage of this legislation. I know that the provision of these facilities will cost a significant amount but it will be money well spent and will be seen to bring about a substantial improvement in our criminal justice system.

The explanatory memorandum points out that the Bill is based in the main on the recommendations of a number of Law Reform Commission reports — their report dealing with the competence and compellability of spouses as witnesses; their report on receiving stolen property; their 1990 report on child sexual abuse and their 1990 report on sexual offences against the mentally handicapped. I endorse the gratitude expressed by Senator O'Donovan to the Law Reform Commission for the work that they do, and particularly for the contribution they made to the provisions of this Bill.

I welcome the fact that this legislation, when enacted, will make it easier for children, young persons and persons with mental handicap to give evidence in cases involving sexual abuse and physical abuse. There appears to be a very substantial increase in the number of cases of child abuse coming before the courts. Whether this is an indication that more cases are being reported or that more incidents of child abuse are taking place, is something that I do not think anybody can be absolutely sure about. It would appear that the incidence of child abuse today is much greater than it was in the past. One wonders what is the reason for this. Could one of the contributory factors be that so much violence is shown on television? This is an area where, as Senator Neville said, considerable research is needed and would be worthwhile.

The Bill also sets out clearly the circumstances in which a spouse or a former spouse will be competent or compelled to give evidence against an accused person. This clarification was needed and is essential. I welcome the fact that the Government in this Bill have implemented the decision of the court in the case referred to by previous speakers — the case of The People v. J.T.

This Bill, when enacted, will also make business records and other documents such as computer print-outs, faxes and photocopies admissible in evidence. This provision will facilitate the securing of convictions in cases involving fraud and such crimes as embezzlement and crimes which are generally referred to as white collar crimes. It will also help to bring to justice persons who commit crimes against tourists. These crimes are on the increase because tourists are seen as vulnerable and easy prey by criminals.

In the past, many of the crimes committed against tourists went unpunished because once the tourists returned to their own countries they were not prepared to return to give evidence against those who perpetrated the crimes against them. Consequently, the perpetrators of those crimes got off scot-free. I am very pleased the provisions in this legislation will ensure that that will be the exception rather than the rule in the future. Our tourist industry last year was worth over £1 billion to the country's Exchequer. It would be a tragedy if this industry were put at risk because of the activities of a small number of criminals who had no regard for the rights of anybody, much less the rights of tourists.

The changes the Bill provides for in relation to the admissibility of documentary evidence is necessary and welcome. The position at present is that documentary evidence, even if it can be shown to be reliable, is generally excluded because it falls foul of the rule against hearsay. In the past this has resulted in the failure of prosecutions in many cases involving serious crime. It also led to long, protracted arguments in relation to the admissibility of certain items of evidence and to long delays in the legal process. The fact that this Bill clarifies the situation in relation to the admissibility of documentary evidence and spells out very clearly what is and what is not admissible and the discretion the court will have in relation to these matters is a considerable step forward and will be welcomed by everybody who is involved in the administration of our legal system.

Part II of the Bill specifies the documents that are admissible in evidence. The safeguards incorporated in this Part of the Bill will ensure that when the legislation is passed there will be fairness in relation to the rights of everybody, including the rights of the accused. As was pointed out by previous speakers, advance notice of 21 days must be given in the case of any documents introduced as evidence and if the other side wishes to object to the documents or to the evidence there is an opportunity to bring forward an objection. That objection must be notified within seven days of the hearing and, of course, the court has discretion to exclude any documents when the interests of justice dictate that it should do so.

Part III of the Bill provides for a number of changes that will make it easier for young persons, children and persons with mental handicap to give evidence in sexual abuse cases. The purpose of these changes is to help those witnesses to feel more at ease when giving evidence. As previous speakers said, it must be a very traumatic experience for vulnerable young people such as children and those with mental handicap to give evidence in a courtroom where they are surrounded by all the medieval trappings associated with the court system. The reforms in this Bill whereby evidence can be given by a live television link, the fact that questions may be conveyed through an intermediary and it will not be necessary for the victim to identify the accused again in court if the victim has already done so in the examination of the offence, and also the fact that video recordings of evidence and statements taken during the preliminary examination of the offence may be admissible as evidence, will make it easier to secure convictions in such cases and will make it easier for children and vulnerable young people who are giving evidence.

I welcome the provisions in the Bill. It is another step in reforming our criminal justice system which is desirable and necessary.

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

I thank Senators for their contributions on Second Stage of the Criminal Evidence Bill and especially for the general welcome the Bill has received.

Senator Neville asked whether there was provision for cross-examination of people who give evidence from abroad. The short answer is, yes. In these cases the witness will be examined and cross-examined just as if he were present in court. For comparison purposes it will be the same as a television anchorman interviewing somebody elsewhere in the country or abroad. Senator Neville also urged that evidence should be given through a television link in all cases of physical or sexual abuse. As a matter of fact, I introduced an amendment on Report Stage of the Bill during its passage through the Dáil which would allow people over the age of 17 in these types of cases to give evidence through a television link. The difference between that provision and the provision relating to people under 17 is that we envisage that it will be the norm that people under the age of 17 will be allowed to give evidence through a television link unless the court sees good reason to the contrary. In the case of a person over the age of 17, an application will have to be made to the court and the court will have to decide on all the circumstances. It will not be the norm, but the court can allow it if it is convinced that the interests of justice require it.

Senator Neville urged that child witnesses be kept away from the court building. I fully agree with this. In Dublin where the system will be introduced initially, the witness room will be Áras Uí Dhalaigh. However, it may not be as easy to arrange when the system is extended to circuits outside Dublin that the child will be kept away from where the main action is taking place. If it is not possible to do this outside Dublin, and the witness is accommodated in the court building, great care will be taken to ensure that the witness does not come into contact with the accused entering or leaving the building. Soon enough, with advances in technology, the witness will be able to give evidence from a centre far removed from the courthouse. In the United States, for example, doctors now frequently give evidence from a hospital room which is removed from the courtroom by up to 100 miles.

Senator Neville was also concerned to know if the defence will be able to cross examine the witness through a television link. The short answer is yes. The examination in chief, cross examination, etc., will take place just as if the witness were present in court. The only difference is the witness will be removed from the actual courtroom and the examination will take place through a television link. In effect, the only thing which will change will be the physical location of the person who is being questioned.

Senator Costello asked me to expand on the role of the intermediary and the kind of person the intermediary will be. Briefly, the intermediary will sit with the child in the witness room and relay the questions to the child, either exactly as they are phrased or in a form which is intelligible to the child considering the child's stage of development. It will be for the trial judge to appoint the intermediary and to be satisfied that she is competent, I use the word "she" as, generally speaking, the intermediary will be a woman. No doubt, the trial judge when he is appointing the intermediary will take into account, first, her personality, is she good with children, and then he will take into account factors such as whether she has the necessary intelligence to appreciate what her role will be.

In practice, we would envisage that the judge will instruct the intermediary before she brings the child into the witness room. The judge will point out what exactly she is to do or what she is not to do. For example, he will make it very clear to her that she is not to distort the questions being asked. If the intermediary does not render the questions faithfully or put them as they are asked, counsel, who will be in contact with her over an audio link, can tell her to rephrase the question. If the rephrasing is not satisfactory, counsel can have the question rephrased again or the judge can intervene at any stage. The judge can see the entire happening in the witness room on his own monitor so he will be to totally in control of the situation from beginning to end, just as obtains at the moment.

Senator O'Donovan urged that a television link be extended nationwide and Senator Mullooly was also concerned about that point. I want to say very clearly that that is my intention. It will be installed in Dublin by next October and provision is made in the Bill for trials to be transferred to Dublin from an area where the facility is not provided simultaneously. It is our intention that the facility be extended to the rest of the country as quickly as possible. Naturally, the senior Minister in the Department of Justice will be having consultations with our colleague in the Department of Finance on that matter because it will cost money. It is our intention that it be extended as quickly as possible.

I would point out that the offences of rape, rape under section 4 of the Criminal Law (Rape) (Amendment) Act, 1990, aggravated sexual assault and attempts at those offences must, at present, be tried in the Central Criminal Court in Dublin. They are the offences which generally will involve the use of this technology and as they are tried in Dublin anyway, the technology will be immediately available. Next year I hope and expect that the system will be extended to a court in the south of the country, about which I am very glad, and one in the west, in the light of the experience gained in the operation of the Dublin system. After that I envisage that a review will take place of the requirements in each Circuit and District Court district having regard to the likely number of cases to be handled by the courts in that area. Regard would also be had to the possibility that witnesses could give evidence from locations which would be far removed from the place where the actual court proceedings are taking place.

On the question of barristers' dress, the House will recall that an amendment was proposed on Committee Stage in the Dáil which would have resulted, in my opinion, in the anomalous situation that for all proceedings taking place under the criminal evidence legislation, it would not be legal to wear wigs or gowns. I consulted with the Bar Council about this and they informed me that they were undertaking their own review at the moment. They may possibly recommend to the Bar as a whole that some form of gowns should be retained and wigs discarded.

I adopted a conservative approach in this regard. I am probably the most conservative Member of either House in this regard. Rather than allowing this anomalous situation to be created, I allowed the Bar to get on with their own review, but I said in the Dáil, and I reiterate now, that if the Bar do not come forward with proposals by the end of the year we will have to take steps to alter or even totally remove the relevant rule of the Rules of Superior Courts. I believe, as do those of every shade of political opinion in both Houses, that the wearing of 17th century dress is no longer appropriate to modern conditions in our courts. I would point out to the people who advocate otherwise, that the operation of that rule of the Rules of the Superior Courts does not apply to vacation time. The courts are often very busy during vacation time; barristers plead cases on both sides without wearing this paraphernalia and the sky has not fallen in.

Secondly, as a result of legislation in 1989, the wearing of wigs and gowns is banned for family law cases. Again, we have no evidence that the interests of justice were damaged; in fact, all the evidence suggests the contrary. Third, the District Courts are occupied by solicitors every day of the week arguing cases. They are not required to wear wigs or gowns and, again, the interests of justice are in no way damaged.

The Bar have put forward spurious arguments, in my personal opinion, that gowns should be retained to prevent discrimination that might arise where people earning £200,000 a year might be able to dress better than people earning £200 a year at the Bar. That has caused no problem in the solicitors' profession. It has caused no problem in practice during vacation sittings of the superior courts. I think it is a spurious argument.

As I also want to take into account the feelings of the members of the Bar and the feeling of the Bar as a whole, I am prepared for the moment to let them get on with their own review. If that review is not completed and if some logical and reasonable proposals are not coming forward and being adopted by the end of the year, I reiterate what I said. I am not doing so in threatening way, I am merely pointing out that 17th century dress is entirely inappropriate as we approach the 21st century.

I thank Members for their contributions to this debate. The debate in the Dáil and the points made here on Second Stage will help us to improve the Bill. As I said at the outset, it is not a political party issue. It is a landmark change in the law of evidence. It contains some very radical reforming measures which we will have to depend on the courts, to implement in a logical and intelligent manner. I have no doubt they will do that.

It is important that we get this right and we are now at the stage where we have the legislation as right as we can ever make it. I thank the Senators for their contribution to that process.

Question put and agreed to.

Agreed to take remaining Stages today.

Bill put through Committee, reported without amendment, received for final consideration and passed.

Sitting suspended at 12.45 p.m. and resumed at 6 p.m.