Road Traffic (Amendment) (No. 2) Bill, 1978 [Seanad]: Second Stage .

Tuesday, 27 June 1978

Dáil Eireann Debate
Vol. 307 No. 12

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Minister for the Environment (Mr. Barrett): Information on Sylvester Barrett  Zoom on Sylvester Barrett  : I move: “That the Bill be now read a Second Time.”

The Bill which has been passed by the Seanad is primarily concerned with the offence of driving or being in charge of a vehicle while having a concentration of alcohol in the blood or urine in excess of a prescribed limit. As the House is aware, this law was first enacted by the Oireachtas in 1968, following a report by a commission established to examine the issue of driving while under the influence of drink or a drug. The 1968 Act has itself been amended on one occasion; its operation has more than once been suspended; procedures have been revised from time to time; regulations have been made and amended to meet changing circumstances and to deal with problems which emerged in specific court decisions. Nevertheless, the Director of Public Prosecutions found it necessary some months ago once more to suspend the taking of proceedings under the existing legislation. The proposals in the present Bill are designed to provide a substantial deterrent to those who feel they can continue to avoid the consequences of the criminal action of driving while their capabilities are impaired by drink or by drugs, and to establish a clear framework within which those who wilfully break the law can be brought [2008] before the courts and punished appropriately.

It was a central theme of the 1968 law, in order that the new principle would be acceptable to the people generally, that the protection afforded to the individual charged under it should be spelt out in the greatest detail possible. The Act and the regulations made under the Act accordingly prescribed in great detail the procedures to be followed by the gardaí, by medical practitioners called in to take blood or urine specimens, and by the Medical Bureau of Road Safety who carry out analysis of specimens of blood and of urine sent to them by the gardaí. Even the equipment to be used —syringes, bottles, seals and so on— were subject to statutory regulation. Court procedures have tended to centre on proof that the prescribed procedures and other matters were observed in every minute detail. The proofs sought in court included proof that the examining doctor was a registered medical practitioner; that the syringe used was actually supplied by the medical bureau; that the prescribed wording of the caution by the garda had been read to and understood by the defendant; that printed forms and certificates used in the course of a prosecution cited precisely the references to statutory matters and that the required procedures within the medical bureau were minutely observed. As a result, accused persons found it possible to secure dismissal of prosecution often on a technicality, however trivial or almost frivolous, despite the availability to the courts of a certificate of the director of the medical bureau that the blood-alcohol level of the accused exceeded, and in many cases substantially exceeded, the prescribed limit.

During 1977, the incidence of dismissals of prosecutions and the apparent inequality of treatment of such cases by the courts became such that the Director of Public Prosecutions decided in October 1977 that no further proceedings under the existing breathalyser system would be initiated pending a review of the statutory position. That review has been timeconsuming and has involved constitutional [2009] issues as well as examination of a great variety of court decisions on many points. I would like to have been in a position to bring the new proposals before the House at a much earlier date, but this was simply not practicable. I therefore appreciate the co-operation shown by the House in facilitating the urgent consideration of the Bill today. We all agree that the trend of road accidents demands positive action in so far as legislation can assist in reversing it. A high proportion of accidents involve drivers who have consumed an excess of alcohol. There are of course many reasons why accidents occur—speed, road and weather conditions, fatigue, mechanical failure, and so on. But we are concerned here with the type of case where a driver is not capable of exercising normal control for the reason that he is, by his own action, under the influence of alcohol, or a drug, or both alcohol and drugs. I have no doubt that the House is anxious to take strong action to curb this abuse; to produce an effective deterrent which will show that these actions cannot be tolerated or be pursued with impunity; and, where the law has found such persons guilty of an offence, to put them off the road.

Under the 1968 Act, the limit of blood-alcohol concentration, known as BAC, was set at 125 milligrammes of alcohol per 100 millilitres of blood. This limit is high by European standards and it is proposed to reduce it to a new limit of 100 milligrammes of alcohol to 100 millilitres of blood. In association with this change, it will also be an offence to drive or be in charge of a vehicle while exceeding an equivalent concentration of alcohol in the urine—the limit in this case will be 135 milligrammes of alcohol per 100 millilitres of urine. Urine testing will be available too where drugs or a combination of drugs and alcohol are in question.

A case can be made to reduce these limits even further. I believe the proposals in the Bill are reasonable. Some countries which have lower limits also have a two-tier system, where penalties for the lower BAC are less severe than those for the higher limit. We have opted for a single limit with correspondingly [2010] severe penalties. This limit is the same as that in the USA where driving conditions may, indeed, be even more difficult than ours. We should, in my view, give effect to this proposal and examine its results without prejudice to the possibility that even more stringent measures may be found desirable in the future. My hope is, however, that the effects of this Bill would not depend merely on the limit actually fixed, but would show people that drunk driving is itself an evil thing. Anything we can do outside the legislation to bring this home to the drinking driver will be done.

I would like to make it clear that setting a limit of 100 milligrammes of alcohol per 100 millilitres of blood does not mean that a person having less than this concentration is altogether immune from prosecution and conviction. It is a statutory offence to drive while one's ability is impaired by the influence of alcohol or drugs, no matter how low the concentration may be. But it would, under the Bill, be a specific offence to have more alcohol in the blood or urine than the prescribed limit.

A major principle of the Bill is to remove from the law a number of requirements which oblige the Minister to prescribe details of matters which are not of evidential value. These include details of the procedures followed within the medical bureau. We must be mature enough to accept that eminently qualified medical personnel in the bureau carry out and certify blood or urine analysis at least as conscientiously as any qualified analysts elsewhere whose findings we can accept for the gravest of personal reasons without making an issue of their procedures or their qualifications. But in eliminating these details from the statute book, we must protect the right of the person charged to produce evidence, if he finds it possible to do so, in his own defence. To achieve this, the Bill provides that when a person gives a blood or urine specimen, he will be handed a sealed portion of that specimen, which he may have analysed independently. It will be open to him to present an independent analysis in court should he find this appropriate, [2011] and it will be for the court to decide the case on the evidence presented to it.

The commission on drunk-driving visualised the establishment of blood alcohol content by means of breath analysis. Breath analysis is not to be confused with the screening test, that is, blowing into a tube or bag, by which the presence, but not the level, of blood alcohol can be indicated. The screening test if positive is, under existing law, followed by arrest and the subject is brought to the Garda station. That procedure is not affected by the Bill. The existing law enables the gardaí at the station to require a subject to undergo breath analysis or to give a blood specimen. Breath analysis has not so far been so used here. Scientific developments since 1968 have produced different types of apparatus which are capable of measuring blood-alcohol concentration by breath analysis. The apparatus is capable of giving both visual and print-out evidence of blood alcohol content. While no change in our law is necessary to enable such apparatus to be used at a Garda station, the present law does not enable the gardaí to use breath analysis at the roadside. The Bill would make provision for this contingency.

The mandatory disqualification from driving of a person convicted of excess alcohol concentration in his blood or urine will be retained and will apply to offences under this Bill, as will be the power of the courts to impose penalties of fines and/or imprisonment. The maximum fine is being increased to £500. The other amendments proposed do not affect the principles on which the present law is based.

Subject to enactment of the Bill, therefore, which I would propose to bring into operation as soon as this can be done:

—The existing roadside screening test will continue. This will normally be the first step taken by a garda.

—A person suspected of an offence may be arrested without warrant [2012] and brought to a Garda station for breath analysis or blood test.

—A person who is required to give a blood specimen may opt to give a urine specimen instead. Where a urine specimen is given, a concentration of alcohol in excess of 135 milligrammes of alcohol per 100 millilitres of urine will indicate that an offence had been committed. This relates to the concentration of 100 milligrammes of alcohol per 100 millilitres of blood.

—Breath analysis may be used by the gardaí at the roadside, as well as at a Garda station, which they are already entitled to do.

—Where drugs are suspected, or a combination of drugs and alcohol, a urine specimen may be required for testing.

—A person giving a blood or urine specimen will be obliged to comply with the requirements of the designated medical practitioner in attendance.

—When a doctor takes a blood or urine specimen, he will seal it in two portions one of which will be given to the subject, who may arrange for its independent analysis if he so wishes; the other portion will be sent to the medical bureau for analysis as to the concentration of alcohol in the blood or urine, the result of which will be communicated to the subject and to the Garda. The doctor will complete a certified statement as at present, authenticating the specimen as to the person, the time and the place where it was taken, and so on.

—When the medical bureau has carried out its analysis in accordance with normal professional practice to establish blood or urine alcohol concentration, they will issue a certificate of their findings in a prescribed form. The Bill provides that the certificate of the bureau, which will be admissible in evidence, will be proof of compliance with statutory requirements.

[2013]—It will be an offence for a person not to comply with the instructions of a Garda in relation to screening or testing procedures.

—The penalties on conviction will, as at present, include disqualification from driving and, at the discretion of the Court, a fine up to £500 and/or imprisonment.

I earnestly hope that the House will give this Bill the urgent attention which is warranted in present circumstances.

Mr. T. J. Fitzpatrick: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  (Cavan-Monaghan): In accordance with the assurance which I gave to the Taoiseach in regard to this Bill last week on the Order of Business, our party are prepared to facilitate the passing of this Bill through the House tonight. At the same time, I would like to put on record that I and my party feel ourselves in a dilemma in regard to this Bill. It deals with a very serious matter, the offence of drunken driving or driving a mechanically propelled vehicle with an excessive amount of alcohol in the blood to such an extent that the judgment of the driver is impaired and he ceases to be capable of exercising proper control over the vehicle. That in substance is what is in the Bill and for that reason we regard it as serious and urgently needed. That is so because it is almost as reckless to go out on the highways of this country with a motor car while the driver is under the influence of drink or while his judgment is impaired by drink as it is to discharge a firearm in a crowded thoroughfare. For that reason we consider that this Bill should get a speedy passage through the House.

On the other hand, I must deplore the fact that the Bill was introduced here in the dying days of this Dáil session and at a time when it had no hope without the co-operation of the members of the Opposition of being cleared through the Oireachtas in the ordinary way. That is to be deplored because it places the members of the Opposition in the position that if they do not allow the Bill a speedy passage through the House they take responsibility for depriving the Garda and the law enforcement agencies of this [2014] measure which is a necessary measure. On the other hand, when we give it a speedy passage through the House there is a danger that it will not be as thoroughly vetted and investigated as it might be. However, balancing one set of circumstances against the other, and having regard to the serious offence which is being dealt with, the desirability of passing it through the House and the desirability of vetting it thoroughly, we have come to the conclusion that the proper thing to do is afford the Bill a speedy passage through the House, and that is what we are doing. If the Minister has any doubts about the constitutionality of the Bill or any of its provisions he should submit it to the Supreme Court for a decision on whether its terms are strictly in accordance with the Constitution. It would be very undesirable that the Bill when it becomes an Act should run into the same type of trouble as did the other Bill.

Regarding the history of this sort of legislation, as far back as 1872 we have had the offence of being in charge of a carriage—a horse-drawn carriage of course—while under the influence of drink or while unfit to exercise proper control over the horse and carriage. Not until 1933 did we have the specific offence of driving while drunk. That was an offence introduced by the Road Traffic Act of that year which made it an offence for a person to drive or attempt to drive a mechanically propelled vehicle while under the influence of drink and imposed serious penalties such as fines, which according to money values of those days, were substantial, a sentence of imprisonment on the driver and automatic disqualification from holding a driver's licence. Coming fairly closely on the Road Traffic Act of 1961 we had the Road Traffic Act, 1968, which for the first time introduced the offence of driving a mechanically propelled vehicle while the driver had in his blood a concentration of alcohol in excess of 125 milligrams per 100 millilitres of blood. I am fairly familiar with that measure because I was spokesman for my party on Local Government at that time.

The Bill was introduced following the report of a commission on driving [2015] while under the influence of drink or a drug, which was set up by the Minister for Local Government in 1961. It is worth noting that in 1968 not alone did we accept the advice of the commission of 1961 but we went beyond that. The commission of 1961 recommended the introduction of a blood test and that the permitted amount of alcohol in the blood should be 125 milligrammes to 100 millilitres and recommended that that should not be an absolute offence. The commission recommended that that should be prima facie evidence that the driver was unfit to drive and that the onus would then shift to the driver to prove that notwithstanding that concentration of alcohol in his blood he was in fact fit to drive a car.

We had a long discussion on that proposal when the 1968 Bill was going through. One school of thought, with which I agreed, was that we should accept the recommendation of the commission and make the concentration of alcohol in the blood prima facie evidence only. All through that debate I argued in favour of the prima facie concept as against the conclusive concept. Whether I was right or wrong in regard to making the excessive concentration of alcohol in the blood an absolute offence, I accept the proposal of the Minister to make it an absolute offence now. It is worth recording that, if the then Minister and his advisers had not made so many things conclusive, had not used the measure to make certificates of the doctor and of the bureau conclusive evidence, the legislation would have stood up and would not have proved unworkable.

As the Minister said in his introductory speech, the regulations which his predecessor made under the 1968 Act provided elaborate procedures for taking samples of blood, for analysing them and for conveying the result of the analyses to the Garda. These were challenged in the courts from time to time and many dismissals were obtained. One of the fundamental objections to the Bill was brought to the Supreme Court, which ruled that a certificate which purported to be conclusive evidence against the accused was unconstitutional. That was a vital [2016] flaw in the 1968 Act. It resulted in the introduction of the 1973 Act, which attempted to cure the constitutional flaw. If the Minister had not sought to make the evidence of the certificate conclusive we might not be here this evening.

The object of this Bill is to reduce the permitted concentration of alcohol in the blood from 125 milligrammes per 100 millilitres to 100 milligrammes per 100 millilitres. That is a reduction of at least 20 per cent. Many think that it should be reduced still further to 80 milligrammes per 100 millilitres. Those who put forward that argument say that in fixing it at 100 milligrammes we are higher than many other countries. That is only partially so, because in considering the permitted concentration of alcohol in the blood we must bear in mind that we are not using the concentration of alcohol in the blood as corroborative evidence of drunken driving, that we are not using that to back up visual evidence of drunken driving or the evidence of a doctor in regard to drunken driving. Here, as distinct from other countries, we have a new and absolute offence of driving with this concentration of alcohol in the blood. If the technical proof shows that a driver has this concentration of alcohol in the blood then, irrespective of whether he produces the best medical evidence or other evidence to show that he was still capable of driving a motor car and exercising perfect control over it, he is still guilty of the offence created in 1968, which is being reinforced now on a sticter basis. That is the difference between us and most other countries. If we had time to go through the various other countries we would find that in a great percentage of them there are two tiers of offence—driving while impaired and driving while seriously impaired—and the concentration of alcohol is used as prima facie or corroborative evidence. For that reason the reduction from 125 to 100 milligrammes was necessary and reasonable. According to this report, three small whiskies or two-and-a-half pints will amount to 100 milligrammes. This is a reasonable step forward, a reasonable tightening of the law.

[2017] The Bill also increases the penalties from the present figure to a maximum of £500 and leaves the imprisonment penalty at six months. Many people would agree that these penalties, especially the imprisonment penalty, is not sufficient and that a person who takes a car out while unfit to control it should be subject to a heavier penalty than six months' imprisonment. For an explanation of the £500 and the six months we must look to the Constitution. I say that in explanation of what the Minister is doing because the Supreme Court has ruled, I think, that where a fine of a greater sum than £500 is provided the offence in question ceases to be one fit to be tried summarily in the District Court.

I think the Supreme Court has ruled also that where a sentence of imprisonment is longer than six months the offence ceases to be an offence fit to be tried summarily in the District Court in accordance with our Constitution. If that is so, if we were to impose sentences of more than six months and fines of more than £500, if the end result was that cases of drunken driving could not be tried by a district justice but had to be tried by a judge and jury we must be frank with ourselves and admit that we would have fewer convictions rather than more. That is the reason that the penalties are as provided here.

In this modern age, in which a motor car is regarded as indispensable, when people will do almost anything to get a motor car on the best terms possible, including votes for Fianna Fáil—as the last general election showed when the carrot of no road tax was held out to the electorate—the most effective deterrent, nearly as effective as imprisonment, is the penalty of taking away a driver's licence. A young man at present will regard himself nearly as well off in prison as being at large without his motor car. The Minister has left the mandatory disqualification period of 12 months for the first offence as it was in 1933, as it was repeated in 1968. The Minister might have considered increasing this. A forward step was taken by one of the Ministers predecessors in office. I think [2018] it was the late Deputy Everett, a member of the Labour Party and a Minister for Justice in a Coalition Government, when he divested himself of the right in certain cases to restore driving licences removed by the court. Until that bold and brave step was taken Ministers for Justice were under all sorts of pressure from their supporters and people in the country generally to restore driving licences taken from people for a variety of offences, including that of drunken driving. Since that time in 1948, or whenever it was, no Minister for Justice ever sought to take back the power of restoring a driver's licence which had been taken from him by the courts. Now one must go back to the courts to have one's licence restored. I am in agreement with the fine of £500 and the six months' imprisonment for the reasons stated in regard to the jurisdiction of the courts. However, perhaps the question should have been considered of increasing the period of disqualification.

The next thing the Bill does is to close, in a constitutional way, a lot of the loopholes that became apparent in the Acts of 1968 and 1973. As the Minister said, those Acts made certain certificates—whether signed by the doctor or bureau—absolute evidence. The Supreme Court held that that was an intrusion into the rights of the courts and in effect was administering justice which is reserved by the Constitution for courts presided over by judges appointed in accordance with the Constitution. It is now proposed that these certificates will not constitute absolute evidence but will be evidence against the accused until the accused proves the contrary. I admit— and this is one of the things that worries me about the Bill—that there are cases in which it will just not be possible for the accused person to rebut those certificates even if, for example, the samples of blood were not properly taken. That is one of the drawbacks in the Bill. However, I suppose that is one of the things we must balance against the protection of the innocent person who is in danger of being slaughtered by drunken drivers and the freedom of the individual. But [2019] there are precedents for it. We are not embarking on new ground. The old Customs Consolidation Act of 1896, I think it was, contained a similar provision. Many Acts passed by this Oireachtas in more recent times contained this limited shifting of the onus of proof. It is not something that is to be encouraged. Indeed it is only right to say, on behalf of this party, that it is not something this party would lightly agree to or accept—that this is not to be taken as carte blanche or an unqualified precedent.

We will have sufficient time—if I do not speak too long—to go through this Bill section by section. However, let me make one general remark. It was said in the Seanad and elsewhere that what we need in this country is a bit of education in regard to our drinking habits and in regard to the spending of our spare time, particularly in regard to the latter. I do not speak as a tetotaller or as somebody who does not tolerate alcohol, far from it, but I am convinced that we do not know how to use our spare time in a sensible, healthy and harmless way. We are moving into an age when everybody has more spare time. It is not so long ago that many people worked six days a week. We have passed from that to the five-and-a-half-day, into the five-day week, and we may be moving on towards the four-and-a-half-day week. I am afraid that most people in the country regard the lounge bar with its facilities as the only acceptable place in which to spend their spare time. It is not so very long ago that there was a carnival craze in this country, in the form of large marquees, with dancing seven nights a week. There was nothing wrong with that; there was the attitude associated with it, but there was no way that such a carnival would be a success unless it was cited convenient to a public house.

We have now moved out of the carnival era and today we have the dance, the hop and the disco. There is only one way in which these are a success and that is if they are held inside a public house. I believe that is due to the fact that we have not sufficient [2020] experience or knowledge of other ways of enjoying ourselves other than drinking and it is high time there was established here a Minister with responsibility for leisure.

Mr. Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  : Let us call him the Minister for Labour.

Mr. T. J. Fitzpatrick: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  (Cavan-Monaghan): We should have a Minister for Leisure with responsibility for training young people from the time they go to school in learning how to spend their spare time all through life in a healthy recreational way. I shall have more comments to make on the various sections in the Bill on Committee Stage.

An Ceann Comhairle: Information on Joseph Brennan  Zoom on Joseph Brennan  : I would remind the House that, while there is no time limit, we have to have all Stages by half past ten.

Mr. Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  : I support this Bill and I can assure the Minister that we will facilitate him in every way possible. Our attitude to the Bill is straightforward and simple. If one accepts the principle that human life is sacred, then it is sacred on our roads just as much as it is sacred in any other walk of life. Our discretionary control on our roads is limited because of mechanical defects, weather conditions and so on but, to the extent that individual drivers have discretionary control over the lives of others on our roads, this legislation is an absolute necessity.

Deputy Fitzpatrick has given us the history of the previous legislation. All of us are well aware of the loopholes and defects in the 1968 Act. Anything that closes the loopholes availed of by lawyers for the benefit of people, who on the face of it were guilty of putting human life at risk on a discretionary basis, is acceptable to us.

Deputy O'Connell, on Committee Stage, will deal with the permitted level of alcohol. As Deputy Fitzpatrick said, there is a pattern of social behaviour which revolves around drinking until fairly late at night. Drinking goes on long after public transport has ceased to operate. The majority of people now live in urban areas within reach of a public transport service. It seems to me therefore [2021] that, if we really want this legislation to work as against merely bringing a great many prosecutions under it, which is not, I think, the intention anyway, there must be some alternative method whereby people can travel home safely, after having had three or four drinks, without breaking the law.

This seems to me to be one of the critical points when it comes to implementing the provisions of the Bill. I can see a situation where someone will be stopped by a garda, tested and found to have an excess of alcohol in his blood. That person could make the case that he was not drunk. An unacceptable level of alcohol is an absolute offence; but, if he has no other method of getting home, there will have to be some recognition of that fact. I am not now talking of someone down in Kerry in the Minister of State's, Deputy O'Leary's, constituency. It would probably be much easier for him to get home than it would be for someone on St. Stephen's Green at two o'clock in the morning. Unfortunately that can be the reality and I would like to see the Minister recognising that. Hopefully, the Bill will have a major impact on the way in which people behave socially but, if they want to ensure they do not break the law, some kind of facilities by way of alternative transport will have to be found for them.

One must consider practicalities. If people lose their licences there will be pressure on the courts and others, because cars are required to enable these people to do their jobs. They will be disqualified simply because they had three or four pints but were perfectly capable of driving. I am trying to underline one of the impacts and suggesting that some form of alternative transport should be available. I would hope the Minister between now and the drafting of the regulations would consult with the Minister for Tourism and Transport and CIE as to the possibility of a late night skeletal public transport service in major towns and cities so that no one could stand up in a court and state that he had no other way of getting home other than his own car.

[2022]Mr. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  : It is only right and proper to put on the record the concern I have at the delay in introducing this Bill. In October 1977 the Director of Public Prosecutions indicated that he was no longer able to enforce the law under the 1961 and 1968 Acts as amended, in particular in relation to the breathalyser. That was the signal for immediate action. That action was not forthcoming from this Government. I have to put on record my condemnation of them for the delay in this regard. I appreciate the complexities involved but this was something to which extreme urgency, extreme priority, should have been given. In the first quarter of 1978 we had an increase in road deaths from 81 to 149 and in the injury total from 1,400 to over 2,000. I trace a large part of those increases to the fact that our roads were open for the drunken driver because the breathalyser legislation was not operable.

I heartily welcome the introduction of the Bill at this late stage except for one point. Tonight we are spending a total of three-and-a-half hours putting this Bill through all Stages. I accept that the pressure for so doing came from this side of the House, but we wanted to ensure that this legislation would be on the Statute Book before the recess. This Bill when enacted will gain the attention of lawyers all over the country who, I can assure the House, will spend a lot longer than three-and-a-half hours studying its provisions. They will be doing so as part of their job to defend people charged thereunder. We had the problem of the 1968 Act and the regulations made thereunder and we all know the loopholes that were discovered therein.

This is not the way to put through legislation of this nature. I believe that good legislation requires proper passage by way of discussion on the floor of the House and a teasing out of the various sections, a fine-combing as it were. The one worry I have at this stage is that the fine-combing necessary for a Bill of this nature, and which will not be given now, will be given in other forums throughout the country, to wit, the courts of justice. [2023] My fear is that in so doing many of the apparently small points will result in defendants being able to evade the terms of this legislation.

I hope we are not putting on the Statute Book an Act which will result in several coaches-and-four being driven through it but I am afraid the danger is there. I know from my days as a practising lawyer of the careful attention given to words, commas and phrases in preparing a defence on a serious charge for any defendant. That is the care and attention that will be given by the lawyers to this legislation and that is the care and attention that should be given to it by this House. Unfortunately in the situation we are in, time is not being made available for so doing. I appreciate the time is not available before the recess but this Bill should have been before the House months ago.

The terms of the Bill in general meet with approval from all sides. There may be a point or two raised for discussion but in general the spirit behind the Bill is acceptable. There are two basic things I would like to suggest. Again drawing on my experience as a practising lawyer, it always struck me as unjust and unfair that a person who was hopelessly drunk and driving a mechanically propelled vehicle received the same penalty as somebody who was slightly over the limit. It is all very well to look at the penalties of £500 and six months' imprisonment and so on in the Bill, but the practical situation is that the main deterrent, the main penalty, imposed by the courts is the automatic 12 months' disqualification. If one assessed the record of drunken driving offences under section 49 and the cases which were successfully brought to a conclusion under the old breathalyser legislation, one would find in 99 per cent of the cases that this was the main penalty imposed. The monetary penalty was virtually of no consequence. I believe it would be better law and a greater deterrent to have a situation where somebody who is slightly over the limit would receive a certain disqualification and somebody who was seriously over the limit would receive a greater disqualification. [2024] I suggest, when any future revision of this legislation takes place, that a penalty of a graduated period of disqualification, depending on the alcohol level, might be borne in mind.

I do not believe this Bill will solve the problem of drunken driving, of the deaths and carnage on our roads, unless, at the same time, it is accompanied by a positive effort on the part of the Government and the people to re-educate our public attitude in regard to drink. Too often we have the conception of the drunken driver as the hard man, the man who is either in receipt of sympathy or merriment but never is regarded as somebody who, while behind the wheel of a car, could be a lethal killer. This is something that will have to be brought home to the people. Deterrents will help but I am suggesting that a positive campaign along the lines of advertising through the newspapers and television planned in a proper fashion will probably achieve a greater result.

We on this side of the House approve of the spirit of this Bill and are prepared to co-operate in every way with its passage. We are anxious that it should achieve the effect which is desired. I am somewhat concerned with the fact that this Bill will not commence immediately on being enacted; it will require a commencement date to be ordered by the Minister. I appreciate that a certain number of regulations will have to be brought into force to enable it to be implemented. I assume that these regulations have already been fully prepared, that the ground has been laid to put this Bill into action straightaway. I would ask the Minister to give me an assurance that this Bill will be in operation within a matter of days or weeks rather than a matter of months. Otherwise our rushing the Bill through the House tonight will be of no avail.

Mr. Tully: Information on James Tully  Zoom on James Tully  : Although I appreciate that the time for discussion of this Bill is short and while not wishing to delay the House there are a few brief comments I should like to make.

In common with other Deputies I welcome the Bill but I am surprised and a little annoyed, too, at the delay [2025] that has occurred in bringing this legislation before the House. I was surprised, too, to hear the Minister say that some long discussions had to take place first. On four or five occasions during my term as Minister loopholes were found by clever lawyers in the legislation that existed then. With due respect to those two lawyers who are present. I have no admiration for the clever lawyer who goes to the trouble of finding a loophole in legislation of this kind in order to have acquitted some drunken lout who has killed or injured people on the road. Because loopholes were found in the Act the excellent officials in the Department took the necessary steps to remedy the situation, but the Act continued to operate.

I was appalled that the Director of Public Prosecutions saw fit to cancel the legislation, because so long as the general body of drinkers were under the impression that the Act was in existence they were deterred to some extent from driving while under the influence of alcohol. At least, many of them were afraid to drink too much before driving, but once the Act had been put into cold storage there was a huge increase in the number of deaths on the road. For the past 12 months the situation has been becoming increasingly worse. For the more than four years that I had the privilege of being in the Minister's seat I was delighted that with the co-operation of everybody concerned, particularly those in the National Road Safety Association and in other road safety organisations, the number of people being killed on the road was decreasing all the time. But if only one person were killed, that would be one too many. Suddenly, however, the trend went the other way, and there is no reason for that change other than the cancellation of the legislation, which led to the creation of an impression among some drinkers that they could do as they wished.

Would anybody suggest that a person be given a loaded gun and sent out onto the roads seeking somebody to shoot? There is a corollary between such a hypothesis and the drunken driver. Somebody said recently that it [2026] was a drunken driver's own affair if he should have an accident, but unfortunately that is not the case, because the drunken driver puts at risk also the lives of those other road users who may not have had as much as a drink.

I agree with the Minister that drink is only one of the reasons for people being killed on the road, but I recall some years ago a test being undertaken at a well-known hospital as a result of which it was found that in 80 per cent of road deaths the alcohol intake of the victim had been greater than the limit permitted. Recently I heard a commentator on radio say that this is still the figure.

It has been said here that the proposal to reduce the intake level by one-fifth is correct, but I think we should be much more strict. Those of us who have been abroad are aware of what is the situation on the Continent. For instance, in Sweden if one drinks at all one is not allowed to drive, so that people there going out for a night are sensible enough to arrange for somebody to drive who will not take a drink for that evening. There is no such situation here. People like to think of themselves as the hard men or women when they are drinking, that they must take the few extra drinks. The result of this sort of thinking is that night after night people are seen coming from public houses and being helped into their cars by friends and then proceeding to drive home. It is only a matter of luck that far more people are not killed as a result of such behaviour. The regulation should be as tight as possible. As has been pointed out already, people should be made aware that it will not be necessary for them to have a half dozen whiskeys or ten or 11 pints of beer before being unfit to drive, that three half ones or approximately two-and-a-half pints of beer will put them beyond the statutory limit. That point should be publicised as much as possible. Although it may be argued that a person can consume drink in relation to his physical size and that, consequently, a big person could take more than a small person, the limits that are being set are considered suitable criteria for a normal person.

[2027] The Act should be put into operation as quickly as possible. If necessary, the President should be asked to sign it as it emerges but definitely before the tourist season reaches its peak, and that is near at hand. It is a time when many people are killed on the roads. I am not speaking as a member of the Pioneer Total Abstinence Association because we are not intolerant, as Deputy Fitzpatrick seemed to suggest we were, of alcohol in any circumstances. We do not object to people having a drink provided they can carry it, but if they must drink they should take steps to ensure that they are not afterwards the cause of tragedy either for themselves or for somebody else.

Even if some smart guy finds a loophole in the new Bill, the Minister should ensure that it is not cancelled, because to cancel the legislation would result in the carnage starting all over again. This is merely an amending Bill, but since there has been such a delay in dealing with the matter it would have been better to have introduced a whole new Bill dealing with every item that could possibly cause trouble. If the Constitution is the cause of preventing more severe penalties being imposed at district court level, it is time that this additional reason for bringing in a new Constitution be used by the Government.

Mr. Barrett: Information on Sylvester Barrett  Zoom on Sylvester Barrett  : I thank the Deputies for their contributions and for their co-operation in the Bill's passage through the House. This is an indication of their awareness of the seriousness of the matter involved. Both Deputies Fitzpatrick and O'Keeffe referred to the lack of opportunity to debate the Bill and to the long delay that has occurred since the previous Act was suspended by the Director of Public Prosecutions. I assure the House that this delay was unavoidable. The Bill could not have been introduced before now because it was not ready. I would have wished dearly to have been able to introduce it in the week after the Act had been suspended, but I am sure Deputies will agree that it was very important to go into detail regarding the reasons for the failure of the other legislation and [2028] to bring in legislation that will work rather than to bring in another Bill in which loopholes would be found also. This involved consultations with the legal profession, with the Attorney General's Office and indeed with some of those members of the legal profession who found the loopholes in the last order to ensure that we do not fail this time. Of course, neither I nor anybody else can guarantee that loopholes will not be found in this Bill, but it is our sincere hope and belief that it will succeed.

Deputy Fitzpatrick gave us a good exposé of the difference between conclusive evidence and the prima facie type of evidence. He dealt with this very well, and I would like to express my appreciation of that fact. Deputy Fitzpatrick said that persons prosecuted may not be able to dispute evidence of certificates sent to the court. Under the 1968 Act a person who gave a specimen could ask for a second analysis by the medical bureau. This Bill now provides that the subject concerned will at the Garda Station be given a separate part of the specimen sealed which he can take away for independent analysis, the results of which he can bring into evidence during his defence. Deputy Quinn made a case for providing public transport for people who want to go out to do some late drinking, or some form of transport to transport them home. I believe that this kind of amenity would be an encouragement to people to take the extra drink. I do not wish to be over critical of the suggestion, but that is my reaction to it. We cannot provide that service under the Bill.

Deputy O'Keeffe referred to the time taken to bring in the Bill. He said that a long debate—regrettably we cannot have it now and have the Bill—would have served to ensure that the Bill would be amended if necessary to ensure that it is workable. There was a very long debate in 1968. I came in then and I think it was debated before I arrived. The legal people then found the loopholes. Surely it was more beneficial to go into the reasons why those were found before bringing in the Bill, to try to close the gaps which existed in the previous Act, [2029] and to bring in a workable Bill. If the choice had to be between that and the long debate plus a short research programme into the Bill the opening is left for the legal profession again to do the same as they did the last time. I would prefer to have had a longer debate, in fairness to all the Members of the House.

Deputy Tully regretted that the DPP suspended the Bill. As he probably knows, neither I nor any of my colleagues or any Government have any control over the decisions of the Director of Public Prosecutions. It was purely a matter for him. Deputy Tully also suggested that I might ensure it would not happen again. There is no way that I know of that I could ensure that if he decided to suspend any section of this Bill at any time in the future we could stop him.

Mr. Tully: Information on James Tully  Zoom on James Tully  : I do not think the Minister is quite correct. The DPP has no authority to suspend a section of a Bill.

Mr. Barrett: Information on Sylvester Barrett  Zoom on Sylvester Barrett  : Possibly not a section of the Bill. He gave a direction that no further proceedings would be taken under parts of this Bill.

Mr. Tully: Information on James Tully  Zoom on James Tully  : Did he consult the Government before he did that? I know he does not have to, but if he did that it was a very wrong thing to do.

Mr. T. J. Fitzpatrick: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  (Cavan-Monaghan): It might be more appropriate to ask did the Attorney General consult him when he had done it, because as far as I remember there is provision in the Act establishing the office of Director of Public Prosecutions that the Attorney General has the right to consult with him in a general way from time to time.

Mr. Barrett: Information on Sylvester Barrett  Zoom on Sylvester Barrett  : Perhaps the Deputy is right, but I have not heard that there is provision under the Act.

Mr. O'Keeffe: Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  : It is not fair to be bandying his name around here.

Mr. Barrett: Information on Sylvester Barrett  Zoom on Sylvester Barrett  : No, and we are not supposed to discuss his business in the [2030] House. He was entitled to do what he did and I am not being critical of it. I hope we now have a Bill that will work. If it fails there is only one alternative. If any part of it is a failure it should be amended as quickly as possible. This is my ambition. I thank those who contributed, and I again express my appreciation of the great co-operation I have had in the Seanad and in this House this evening.

Question put and agreed to.

Agreed to take remaining Stages today.


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