Criminal Evidence Bill, 1992: Committee Stage (Resumed).

Wednesday, 27 May 1992

Dáil Éireann Debate
Vol. 420 No. 4

First Page Previous Page Page of 124 Next Page Last Page

Debate resumed on amendment No. 37:

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

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  This amendment deals with a provision in the Bill relating to proceedings in the District Court. The section provides for notice to be given to an accused if it is intended to rely on video recordings at any stage during the proceedings——

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  The conversation in the lobby must cease.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  The section proposes that where an accused is to be sent for trial to the Circuit Court and video recording evidence is to be relied upon notice should be served on the person so that he or she would have the opportunity of viewing the evidence as part of the preparation for trial and the conclusion of the preliminary examination. The section applies to a number of circumstances. Subsection (1) (a) states: “Where the person is before the District Court charged with an offence to which this Part applies,” and paragraph (b) states: “the person in respect of whom the offence is alleged to have been committed is a person under 17 years of age.”

My amendment proposes to add to that, circumstances in which the section should apply not just to the victim who [557] is 17 or under but also to where the prosecution of the offence can involve the testimony as to fact, of a witness who is under the age of 17 years. The section as drafted is too narrow. My understanding is that we are going to rely upon video recordings as an aid to testimony not just in the circumstances outlined in the section but also where the witnesses to be called for testimony are persons under a particular age who need the assistance of the intermediary and of the separate location. In those circumstances video recordings can be used under the earlier sections and clearly notice of the intention to rely upon video recordings should be served on the defendant in the case. I would like to hear the Minister's response to my proposition.

Minister of State at the Department of Justice (Mr. O'Dea): Information on Willie O'Dea  Zoom on Willie O'Dea  Section 14 deals with the situation where the prosecution wishes to put in evidence at the trial, a video recording of an interview by appropriately qualified people, of a child under 14, or a mentally handicapped person who is alleged to be the victim of physical or sexual abuse. It provides that the prosecution must give the accused an opportunity to see the recording in advance of the preliminary examination, and that if the alleged victim is available for cross-examination, the video recording may be considered by the district judge conducting the preliminary examination. The section is confined to cases where the evidence in question is evidence by the alleged victim and where it is contained in the video recording of the interview. It would not seem appropriate to provide, as suggested in the amendment, for a case where a prosecution of the offence includes testimony as to facts by a witness under 17 years of age.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  Why is it not appropriate where the court is going to rely upon the video recording? Perhaps the object of the exercise is to alert a defendant to the fact that a video recording had been used and to allow the accused an opportunity to see the video recording. That is fair, but, it begs the question that there will be at some stage in the pretrial [558] process the preparation of the video recordings of victims. I can see why a victim who is under age can have the facility of video recordings but will there not also be preliminary steps taken to prepare video recordings of the testimony of young witnesses as to facts? I see that the Minister is indicating a negative to that. Does this not then raise the prospect of a major gap in the process? Is the position to be that the defendant will rely only on the written record of the testimony of the victim or of a witness, and that the video recording is something that will happen instantaneously at the trial, and there will not be any issue of pre-recording? Is that what is intended?

Mr. O'Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  My understanding is that there will be no out of court video recording of an interview of anybody other than the alleged victim. This is in a situation where the offence has happened in relation to somebody who is 14 or under. If a person is aged over 14 but is under 17 at the time of the trial the video can be used.

With regard to Deputy McCartan's other question, my understanding of the section is that other witnesses under 17 years of age who give testimony at the preliminary hearing will have their testimony video recorded and the video recording of the interview with the victim, together with the video recording of the testimony of the witnesses who are under 17 at the preliminary investigation, will be available at the trial, and the trial judge can exclude any part of it he wishes to exclude in the interests of justice.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  Will the Minister say where the Bill provides for the testimoney of witnesses taken at a preliminary investigation to be made available? I was attempting to address that in this amendment.

Mr. O'Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  It is covered in section 10 which refers to section 6 (1) of the 1967 Act.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  I understood that the [559] Act we were talking about at that stage was the 1992 Act. This is the amendment I suggested to clarify what that Act referred to.

Mr. O'Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  We will consider that.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  I am prepared to withdraw the amendment for the moment. I am reasonably satisfied with what the Minister has assured us.

Amendment, by leave, withdrawn.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  Amendment No. 37a is in the name of the Minister. Amendment No. 63 is consequential on that, and I suggest therefore that we discuss these amendments together. Agreed? Agreed.

Mr. O'Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  I move amendment No. 37a:

In page 11, between lines 14 and 15, to insert the following subsection:

“(3) The Criminal Justice (Legal Aid) Act, 1962, is hereby amended—

(a) by the insertion after section 2 of the following section:

‘2A. (1) Where—

(a) a person is before the District Court charged with an offence to which Part III of the Criminal Evidence Act, 1992, applies, and

(b) it is proposed that at the preliminary examination of the offence evidence will be given through a live television link pursuant to section 12 of that Act, and

(c) a certificate for free legal aid (in this Act referred to as a “legal aid (preliminary examination) certificate”) is granted in respect of him by the District Court,

the person shall be entitled to free legal aid at the preliminary examination pursuant to a legal aid (preliminary examination) certificate and to have a solicitor and counsel [560] assigned to him for that purpose in such manner as may be prescribed by regulations under section 10 of this Act.

(2) A legal aid (preliminary examination) certificate shall be granted in respect of a person if (but only if)—

(a) application is made therefor,

(b) it appears to the District Court—

(i) that his means are insufficient to enable him to obtain legal aid, and

(ii) that, having regard to all the circumstances of the case (including the nature of such defence (if any) as may have been set up), it is essential in the interests of justice that he should have legal aid at the preliminary examination.’.

and

(b) by the insertion in section 9 (2), after ‘legal aid (District Court) certificate,’ of ‘a legal aid (preliminary examination) certificate,’.”.

This amendment is consequential on the provision of section 12 which requires evidence given through a TV link at a preliminary examination to be recorded and section 15 which enables the video recordings to be used as evidence at the trial. The effect of these provisions is that the examination of the witness will be carried out at the preliminary examination stage. However, under the present law, legal aid for the employment of counsel is not available for preliminary examinations unless the offence charged is murder. It is necessary to amend the criminal legal aid legislation to provide for the engagement of counsel at preliminary examinations in cases to which this Part of the Bill applies, that is violent or sexual offences committed against young or mentally handicapped persons, and where evidence is to be given by TV link. That is achieved by this amendment and I would ask the House to accept it [561] on that basis. As it is envisaged that the examination of witnesses for these types of offence will take place at a preliminary hearing, we are providing for legal aid for that.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  This is a very sensible and welcome extension of the criminal legal aid scheme. I have no difficulty in supporting it. Am I right in thinking that the notion of a legal aid preliminary examination certificate is being introduced for the first time, in this amendment?

Mr. O'Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  Yes.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  Will the Minister give some indication as to the level upon which fees will be fixed? This is an important aspect. I will not trespass into areas relating to a current dispute but the workability of any section will depend upon the resources committed to it. There will be some interest among members of the Bar who will be coming into the preliminary examination process in the District Court. At the moment all fees there are fixed statutorily in relation to the existing legal aid regulations. Specific sums are mentioned and there is no automatic review. There is no linking of those fees to anything exterior to the system. The fees of barristers are related in the Circuit Court to what the prosecution is allowed and that is settled between the Attorney General, the DPP and the Department from time to time. That mechanism is not available in the District Court. Have the Department and the Minister given any consideration to the level of remuneration or the basis on which the fee will be fixed?

There is a layman's view abroad that the preliminary investigation is in some way a lesser hearing than the trial at District Court or at Circuit Court level and there is a suggestion that the fee payable will be lesser than the standard miniscule fee for a day's District Court hearing. That is a dangerous argument which does not reflect the importance of the preliminary investigation. The good intentions [562] of the amendment should not be spoiled by not providing adequate funds for the remuneration of lawyers in this area. A preliminary investigation is slow and tedious but it is extremely important in establishing a fair trial. There can be a quick and summary hearing in a District Court case without any undue delay, whereas a preliminary investigation is tortuous and time-consuming. The fees fixed must reflect the importance and complexity.

Mr. O'Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  This is a matter for further consideration and I thank Deputy McCartan for bringing these matters to our attention. I am assured that the principle that the prosecution and the defence should be paid the same fee will apply in relation to preliminary examinations. I am also assured that the argument that the preliminary examination is in some way less important than the trial will not prevail. It will be treated in the context of fees as akin to the trial.

Amendment put and agreed to.

Section 14 agreed to.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  Amendment No. 38 is in the name of Deputy Shatter. Amendment No. 41 is related and the amendments may be discussed together, if that is satisfactory.

Mr. Shatter: Information on Alan Shatter  Zoom on Alan Shatter  I do not think they are related. They refer to different persons. The person referred to in the first amendment is a person against whom an offence has allegedly been committed, while the person referred to in amendment No. 41 is the person who will carry out the assessment. These are two entirely different issues.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  If the Deputy feels strongly about that matter the amendments will be taken separately.

Mr. Shatter: Information on Alan Shatter  Zoom on Alan Shatter  I move amendment No. 38:

[563] In page 11, subsection (1) (b), line 22, to delete “persons who are in the opinion of the court” and substitute “a person or persons”.

This is a technical amendment which may not be required. It relates to section 15 (1) which states:

15. —(1) Subject to subsection (2)—

(a) a videorecording of any evidence given by a person under 17 years of age through a live television link at the preliminary examination of an offence to which this Part applies, and

(b) a videorecording of any statement made by a person under 14 years of age (being a person in respect of whom such an offence is alleged to have been committed) during an interview with persons who are in the opinion of the court appropriately qualified for the purpose,

shall be admissible at the trial of the offence as evidence of any fact stated therein of which direct oral evidence by him would be admissible.

I beg the Chair's pardon. The amendments should be taken together. I apologise. The first part of section 15 deals with the videorecording of statements made by persons where there are allegations of physical or sexual assault. This section deals with sexual assault. Section 15 of the Bill envisages an allegation of sexual assault on a child by an adult and an assessment of some description being carried out by a person with some qualification. Subsection (1) (b) deals with this issue. A parent, a social worker or a teacher may be of the view that the child has been sexually abused and may feel it is necessary that an assessment be carried out to determine whether sexual abuse has occurred. That type of assessment can be carried out in a special unit or by individuals such as social workers or medical practitioners who have, or believe they have, an expertise in the area. There is concern that, whereas the [564] majority of professional people working in this area have expertise, not all have. Some have been self taught and that can be dangerous in dealing with an issue such as this.

The child will be presented to the professional person, who we may assume will be a medical practitioner, possibly a child psychiatrist. Various types of approaches are adopted to determine whether a child has been sexually abused. Those approaches may be dictated partially by the age of the child and by the nature of the physical evidence, if any, as to whether there has been sexual abuse. The form of assessment may involve simply observing the child in a form of play with what is known as an anatomically correct doll or dolls. It may involve a form of interview with the child in order to ascertain from the child's responses whether there has been abuse. It may also include asking a child to execute drawings or to colour various types of pictures presented. The approach adopted by the child can lead professional people to reach certain conclusions. In this area conclusions from the play of the child can be difficult to draw and can be somewhat dangerous. There is a danger that if a professional person undertakes an assessment based on an assumption that there has been abuse, then something the child does may be interpreted as confirming abuse which has not in fact occurred. If a professional person enters into an assessment with an entirely open mind the right or the wrong conclusions may be drawn. This is an area fraught with difficulties and dangers. Nevertheless this type of assessment has provided a less formal means of trying to determine whether allegations, in particular of child sexual assault, are correct.

Section 15 allows for the videorecording of these types of assessment. In effect it is stated that the interview must take place with persons who are, in the opinion of the court, appropriately qualified for the purpose. The section does not specify what is meant by persons “appropriately qualified”. It is left for a court to determine whether someone is or is not appropriately qualified. Those [565] assessments and those videos can then be produced, as stated in the section, “as evidence of any fact stated therein of which direct oral evidence... would be admissible”.

The problem that has arisen in England and in other jurisdictions until recently — we have had a mirror image of that problem in Ireland, although the Irish cases have drawn little media attention — was that professionals and others who conducted this type of interview were drawing conclusions that, at best, were misconceived and, at worst, were dangerously false and inaccurate. False conclusions were drawn from physiological examinations of children, from the manner in which children played with anatomical dolls and from the way in which children responded to questions. Perhaps not in all cases were the conclusions false but at least they were not based on a clear and objective view of the child's responses. Perhaps, on some occasions the conclusions reached by professionals were based more on trying to prove a statistic of the number of children sexually abused than actually trying to establish whether the particular child, being assessed, was abused. There was a general belief among certain professionals that whenever an allegation of child sexual abuse was made their main role was to prove that the allegation was correct to the extent that if a father denied sexual abuse, the father would find himself in a position where it was absolutely impossible to establish that there had not been sexual abuse.

I had the experience, in one particular court case of having a particular medical practitioner in a witness box in a case in which allegations had been made of child sexual abuse. The allegation was such that there was a suggestion that the shape of the private parts of two young boys was conclusive evidence that these boys had been sexually abused. This conclusion had been reached by a medical practitioner without actually troubling himself to talk to the paediatrician who had examined each of these children on birth. The parents told the medical practitioner that each of their children had [566] been born with a physiological deformity and that the paediatrician had advised them that they would either grow out of this deformity or they could be operated on at the age of six or seven and the difficulties would be resolved. The medical practitioner who reached the conclusion that the children had been sexually abused — and that the particular shape of the children's private parts indicated abuse — did not bother to go to the trouble of contacting the paediatrician to find out whether what the parents had said was correct. A health board brought proceedings to have these children put in care. They were seized under what is known as a “place of safety” order and put in care for a couple of weeks. Pending the hearing of the case the father had to move out of the family home. Until the case was fully heard the parents had two choices: either the children would be kept in the care of strangers without their having access to them or the father had to move out of the home because it was assumed he would sexually abuse them. The father moved out and the children returned home.

It was established in court that the children did have a physiological problem and what this particular medical practitioner had described as classic symptoms of child sexual abuse was wrong. When I asked the particular medical practitioner in the witness box — as the lawyer for the parents — whether he knew the father had denied the allegation of sexual abuse, the medical practitioner said “yes”. In response to whether the denial was accepted he said: “no”. I then put it to the medical practitioner as to what would happen if an error was made in the suggestion that a father had sexually abused a child and if the father constantly protested his innocence. The classic response was: “In the end the father would admit sexual abuse”. Happily, on hearing that response, the court threw out the case.

These children had been put through the trauma of being taken from their family home and their parents for two weeks, placed in the home of strangers with no access to their parents and then [567] returned where they had no contact with their father pending the court hearing. How much damage did that particular approach do to those children? That is why when it comes to this issue, as someone who has worked in this area for many years, I have no doubt there is a real problem with child sexual abuse. I have no doubt that for many years we did not acknowledge the problem fully in this country. I have no doubt there are more instances of abuse than we ever realised. I am also concerned when people engage in campaigns on these issues that the pendulum swings from one side to the other, and from an assumption that nobody every abuses any child to an assumption that whenever an allegation is made there is always abuse. It is essential in the civil and criminal law area that we build proper protection against that because of the enormous damage a wrong conclusion can do to a family.

That somewhat lengthy introduction to the amendment was required for the following reason. There are two amendments that I propose to this section. The first relates to section 15 (1) (b) which states:

a videorecording of any statement made by a person under 14 years of age... during an interview with persons who are in the opinion of the court appropriately qualified for the purpose,

shall be admissible at the trial of the offence...

A video recording could be undertaken where one medical practitioner or one social worker would be present. It may be necessary to use the phrase “a person or persons qualified for the purpose”. The section leaves it to the court to determine who is qualified. I do not believe we should have within our criminal justice system a possibility where all sorts of persons could carry out these interviews and as an ex-post facto rationalisation, after a criminal trial has started, there would have to be a trial within a trial as [568] to whether the person who conducted these assessments was qualified.

I would strongly argue that an ordinary general medical practitioner who has no specialist training in this area should not be regarded as a person so qualified. There is a great danger in ordinary medical practitioners teaching themselves about how to interview children to ascertain whether they have been sexually abused and then drawing conclusions which are submitted to a court. This is an area that requires a degree of speciality though the general practitioner may have an initial and important role in the area. In cases where there are no immediate and obvious physiological indications of abuse, and this sort of video recording technique for these types of interview is not envisaged as applying specifically to that area, there is a huge danger in leaving it to a GP, or to a social worker who has graduated from university with ideas about this area, to draw conclusions.

I presume it is no longer happening, but three or four years ago I was hearing some extraordinary stories of what one or two social workers in different health board areas were doing with anatomical dolls when they got it into their minds that a child had been sexually abused. They were using anatomical dolls with the child to try to establish sexual abuse and assuming that they could teach themselves how to deal with this area and then drawing conclusions. If any of my children, or any of the children of Members of this House, were presented with a life size anatomical doll with large parts protruding from it, be it noses, arms, legs or other parts, I would not like any social worker to draw a conclusion as to whether my child or the child of any Member of this House had been sexually abused by simply observing by which part the child might pick up the doll in a play situation. That is hugely dangerous. The idea of newly qualified social workers out of university in a fit of enthusiasm to prove that there is widespread sexual abuse of children in Ireland using these dolls in this way makes the hairs on the back of my neck stand.

I would be concerned that the courts [569] might decide simply because someone has a social science degree, that they are qualified to engage in this kind of interview. I would be concerned that a newly qualified general practitioner without any expertise could be regarded as a qualified person to conduct these interviews and assessments, and I would be concerned that other people might be regarded as so qualified who are not.

Where a video-recording is taken by a person or persons, obviously this section should apply to it. My amendment proposes to insert a new subsection which would read:

A person ‘appropriately qualified’ for the purposes of subsection (1) (b) shall be a qualified psychiatrist or psychologist who specialises in dealing with children and who has received special training in the interview techniques required for interviewing a person who is an alleged victim of a sexual or physical assault.

Within the terms we have established to deal with these areas, we do have such people. I do not think we should allow enthusiastic amateurs to present themselves to the courts as qualified to deal with these matters. I do not think we should leave it to judges to determine whether someone has had the specialist training necessary. It should be a matter of fact. One either has the training or has not. The fact that someone is an adult psychiatrist who, perhaps, specialises in problems of alcoholism should not be sufficient for them to conduct these types of interviews for evidential purposes in criminal trials if they have not had the necessary special training.

This Bill seeks to allow the courts deal with very serious allegations, in particular of child sexual abuse, within a modern legal framework which takes account of modern psychiatric psychological techniques and modern learning in this area. We must also ensure that it does not make it easy for the courts to wrongly convict people against whom false allegations of abuse have been made because that would be the ultimate tragedy. This is not about making it easier [570] to put people behind bars. It is about trying to ensure that people innocent of charges are found innocent; that those who truly engaged in the most awful and disgusting conduct of child sexual abuse come up against the full weight of the law and that the facts can be presented to a court in a way that makes it possible for a court to unravel allegation and counter allegation, denial and counter denial. That is very important.

I am concerned that the section is far too woolly in the way it is drafted. Amendments Nos. 39 and 40 are interrelated to the remarks I made but we are not specifically dealing with them. I urge the Minister to look very seriously at this amendment. It is essential that we insert in this Bill a definition of who is a qualified person. If we do not, instead of this Bill facilitating the processing of these types of charges, we will end up having trials within trials. Every time this aspect of the Bill comes before the courts over the next four or five years we will have trials about who is and who is not a qualified person and there will be appeals on that. We must remember that these criminal charges when they are brought before the courts are usually traumatic. Where the allegations are true, the trauma for the victim, and the family of the victim continues because they are put through a form of trial. We are trying in this legislation to amelioriate the trauma to some degree. If we create a situation where we are guaranteed trials within trials on technical issues of law which could postpone a full court hearing for a year or more that would do huge damage to children who have been victims of child sexual abuse. We have an obligation to say who can carry out these assessments and to clearly set out what their expertise and their qualifications would be. If the House does not do that we are abdicating that role to the Judiciary and, it is we who are the legislators, not the Judiciary.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  The amendment proposed by Fine Gael is a reasonable one. The Minister should have fair regard to the point that the section is much too wide. The question of narrowing it down [571] and identifying in legislation who is qualified to carry out such interviews is something we can look at more closely later. If we were to confine it to the rather close definition given by Deputy Shatter, I would be concerned about the possibility of being able to find an adequate number of these people to assist the process. I take his point about the scenario he has painted of the over enthusiastic university graduate working peripherally or actively in this field having certain views that might not synchronise with the more established and qualified view of professionals working in the area. There is the risk of people working their way around this process because it need not necessarily be relied upon in an investigation of this sort.

Broadly speaking, when these cases, particularly child sexual abuse cases, emerge it is very much the social worker who discovers it or believes it exists or who has been consulted who takes charge.

In consultation with the Garda Síochána, the social worker has a big input into how the investigation is conducted and how the victims are attended to and looked after. We have to be very careful that a situation does not arise whereby this section might, for all practical purposes, be abandoned by the welfare agencies. However, because the section introduces a new concept, and a substantial portion of the evidence at any subsequent trial could be the video-recording of the pre-trial process which can be a very significant factor in a jury arriving at a conclusion, it is important that the interview is done on a precise, clinical and professional basis.

I have also heard of many disturbing and worrying cases — although I was not directly involved at a professional level — where anatomical dolls and other devices were used in interviews to suggest or create beliefs rather than to assist people to come to objective conclusions. We have to be very careful about this matter. It is important therefore that this new procedure should be clinically controlled in a professional way. If the wording of [572] the section is left as it stands, it will be very worrying if, in the initial stages when this idea will be the subject of close scrutiny and challenged by the defence, the process is brought into disrepute because we, in the Legislature, did not establish a high standard to ensure that the public and the courts have full confidence in the procedure.

The other point I wish to raise relates to amendment No. 37 which I withdrew earlier but which is germane to this section also. May I ask the Minister of State — perhaps Deputy Shatter would know a bit more about this matter in the light of his experience in this area of the law — if it is not conceivable that a child sexual abuse case for example, might well involve a young person who witnessed a friend or a sibling, brother or sister, being sexually abused and who may on another occasion have also been a victim? Within the close confines of the family it is not unusual, where one child has been abused, for a second or third member of the same family to be abused in time. On occasion, one child witnesses another being abused.

Would it not be proper and fair, if interviews are pre-recorded with these children who may well make useful witnesses at the trial involving the other child, to make the recording available as evidence at the trial where it could be relied upon? That was the purport of amendment No. 37 which I withdrew earlier. It is also relevant and germane to this section, which is specifically confined to the testimony of the victim.

I can envisage occasions — I hope they do not occur often — when interviews with young children who witnessed a brother or sister or a friend being abused could be of assistance at a trial in the same way as a video recording of the interview with the victim. As I understand it, these interviews will take place at the early stages following the intervention of clinical professionals to help them to establish the facts and to counsel, console and rehabilitate the victim. They can form, and often do, a relevant and useful part of the overall testimony to be presented to the court. Surely the same [573] concepts and principles should apply where, for example, the young person involved is not the victim for the purposes of the trial but would make a relevant witness nonetheless.

Mr. O'Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  I have listened carefully to the case made by Deputy Shatter in support of his amendments, amendments Nos. 28 and 41. He mentioned that experts could draw false conclusions and cited as an example a case, that he himself was involved in, which involved a medical practitioner, an ordinary general practitioner. I do not know what other experts he is referring to but if somebody could point out an expert in any field who has not made a mistake or drawn false conclusions I would love to meet him. On the other hand, I agree that we must be careful about this matter.

Usually, in the criminal law area there is in the United Kingdom or some neighbouring jurisdiction, a precedent for any legislation which is brought before this House and we can examine such a precedent to see how it operates in practice. However, there is no similar legislation to this in the United Kingdom. It is entirely new. I have asked my officials if there is any similar provision in any jurisdiction that we could examine and I have been informed that there may be a similar provision in Canadian law. I undertake, to reconsider this matter between now and Report Stage to see if indeed there is a similar provision in Canadian law and to find out how it works in practice.

Deputy Shatter made the point that, by inserting the word “person”, interviews may only be carried out by one individual. He further made the point that we should allow more than one person to do so and change the word “person” to “persons”. It is my advice that the word “person” includes the plural but I have no great objection and can ask my officials to change it if the Deputy thinks this would make the matter clearer.

Deputy Shatter also said that there is a danger that interviews will be conducted by newly qualified social workers, and I can sympathise with him. While I have no practical experience in this area [574] and Deputy Shatter's knowledge is greater than my own, it has been brought to my attention that some social workers who become involved in these cases as witnesses are predisposed to believe that the accused is guilty. It would be undesirable if such people were to become witnesses for the prosecution or be the interviewers of those people, whose evidence is videorecorded, on a wide scale. The person appointed to conduct the interview must, in the opinion of the court, be appropriately qualified for this purpose.

Mr. Shatter: Information on Alan Shatter  Zoom on Alan Shatter  These are pre-court hearing interviews. The court does not become involved until after the event.

Mr. O'Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  That is true but the point is that the trial judge will be entitled to exclude any part of the recording which he thinks should be excluded in the interests of justice. Perhaps this safeguard is not sufficient. The interviewer's lack of experience and qualifications could become a matter on which the defendant could appeal to a higher court. As I have said, I have no practical experience in this area but it would seem to me if the person who conducted the interview with the accused did not carry it out in a proper and fair fashion this would be evident from the video tape, and the trial judge is obliged by the legislation to examine the video tape before it is admitted in evidence. As I said, it will soon become obvious if the interviewer was being unfair and leaning against the accused in the interview, as it is not just the answers that will be recorded but also the questions.

I take Deputy McCartan's point that if the amendment, as drafted, is accepted we could run into a problem in relation to numbers. It is my own view that people who in the past, because of court procedures and the cross-examination process have been afraid to make a complaint, may be more disposed to do so when this legislation is in force. Therefore, the number of cases could increase.

Another point which occurs to me is that the use of the word “qualified” may [575] give rise to difficulties; for instance, a woman member of the Garda may have to be present even though she will not participate in the interview. Amendment No. 37, tabled by Deputy McCartan, suggests that it should be possible to video-record the evidence of young witnesses in these cases. I take this point but it would be a considerable jump. We want to put this in context and to maintain a certain balance. We are allowing the prosecution — and indeed the person who makes the complaint — to give evidence by way of video recording provided that they will be available for cross-examination, if needed. That is quite a dramatic jump and to allow one, two, three or more witnesses also to give their evidence by way of video recording seems to be a substantial extension of the proposed section which, in itself, is a substantial extension of the law as it stands. However, as I said, I am prepared to look at that matter. I will look at the position in Canada to see if there are similar provisions there and see how they work in practice. I wonder whether it is appropriate for the Bill to contain a detailed definition of the qualifications which the interviewer should have.

Deputies Shatter and McCartan have often used the Law Reform Commission to support their arguments and, in response, I said that the commission are not the sole repository of wisdom. However, the Law Reform Commission did not suggest that the qualifications should be set out in detail in the legislation; they proposed that an out of court interview should be “conducted by an appropriate person, e.g., an appropriately qualified child examiner called in the Bill an intermediary, a doctor, a psychologist, a ban garda or a social worker”. I have no strong feelings in this regard one way or the other but I am conscious of the need to get this right. At present it should be left to the courts to decide whether, in any particular case, those conducting an interview of this kind are appropriately qualified. It is important that the interview is conducted properly and whether, in the opinion of the [576] court, the statements — or some of the statements — recorded may, fairly, be admitted in evidence. Before such a recording can be shown to the jury at the trial, the trial judge will have to satisfy himself that it can properly be admitted, wholly or partly. He will have to do that irrespective of the qualifications of the interviewer, as is written into the legislation.

I was asked last night by Deputy Kavanagh about this point and I will repeat what I said in reply. The appointment of intermediaries will, in the initial stages anyway, be in the hands of the trial judge. In relation to interviewers, I will discuss with my Department the question of having the qualifications set out but, even if we were to do so, we would have to have a wider definition than that contained in Deputy Shatter's amendment, which is too narrow from the point of view of having other people at the interview, and the question of numbers, referred to by Deputy McCartan. In view of the reservations of the Law Reform Commission in this regard we will have to give serious thought to whether we restrict the sort of people who can conduct interviews. As I said, it is a difficult question because the legislation is new. In view of the arguments advanced by Deputy Shatter, I will give the matter further consideration but I must also take the views of the Law Reform Commission into account and they have suggested the exact opposite to Deputy Shatter's proposal.

I cannot give a commitment at present that I will accept the amendment but I am prepared to ask my officials if it is necessary to make it clear that more than one person can conduct the interview. My advice is that the word “person” includes the plural. I accept the Deputy's point that, perhaps in some cases, the interview can be conducted by more than one interviewer and we will see whether that matter can be clarified.

Mr. Shatter: Information on Alan Shatter  Zoom on Alan Shatter  I also have the report of the Law Reform Commission. It seems that different types of interviews could be video recorded. The interview conducted [577] under section 15 (1) (b) might be one conducted in a Garda station by a ban garda with a child which might be video recorded or it could be the elaborate type of assessment I just described which certainly would not be carried out by a ban garda. The Minister is right in saying that the Law Reform Commission's report on child sexual abuse, paragraph 7.20, envisages interviews being conducted by an appropriate person. They give the example of an appropriate qualified child examiner, a doctor, psychologist, ban garda or social worker. It is important that the Bill clarifies exactly what sort of statements will be videoed and shown in court. I do not have any problems with a ban garda asking general questions, indeed, if I had my way I would bring into operation the provisions of the Criminal Justice Act, 1984, which provides for video recording all interviews in a Garda station because it would ensure that false allegations of unfair interrogation cannot be made by people brought before our courts. It would also ensure that, when there are allegations of people being ill-treated in Garda custody — and where there has been such ill-treatment — it would also be available to be viewed by the court. That simple interview by a ban garda is a separate item although clearly it falls within the remit of the Bill. I am talking about more complicated assessments involving the type of matters to which I referred previously. I will not delay the House by repeating them but, when you are talking about those more complex assessments, you need people with proper qualifications. Perhaps this section should have separate portions which deal with a Garda interview of a person who is an alleged victim of a physical or sexual assault. I do not have any worries about video recording that, it would be a very good idea and I have no objection to it. However, this involves something a good deal more complex, it goes into another area. complex assessments by professional people to determine — often in ways which require a great deal of training — whether there has been a sexual assault.

[578] I do not think the report of the Law Reform Commission came to terms fully with the differences between an interview by a ban garda and the use of anatomical dolls, play and other approaches by child psychiatrists or social workers. However, other aspects of the report deal with this in some detail and we will be coming to those matters shortly. If the Minister wants to provide for the video recording of interviews by a ban garda that is fine, but there should be a separate subsection dealing with it. However, if we are talking about people appropriately qualified using the techniques I described, they need to be defined. I appreciate the fact that the Minister said he would examine the matter and if this results in substantive proposals on Report Stage they will be very welcome. However, they will not be welcome if this is just a device to ensure that the vote on an issue is put on Report Stage rather than on Committee Stage. I appreciate that is not the Minister's approach and we are trying to be constructive. I am saying that there is a need to sub-divide this. I will be dealing with the report of the Law Reform Commission when debating amendments Nos. 39 and 40 and I will be asking the Minister about the Pigot Advisory Group and the code of practice they suggest should apply in this area. It is not clear that this Bill provides for a code of practice or for anyone laying down a code of practice. There is a very important interaction between that recommendation of the Law Reform Commission and what will be done under this section and its application to cases of child sexual abuse. Indeed it seems to me there are parts of the report of the Law Reform Commission in that regard that require statutory provision which is not being implemented under this Bill. I will not dwell any further on this. I welcome the Minister's indication that he will examine it.

I might make one further comment and, in doing so, respond to Deputy McCartan. I would say to the Minister: please look at it, not through the narrow confines of the advice available in the Department of Justice. One of the problems [579] we encounter in dealing with legislation of this nature is the artificial boundaries drawn between the Departments of Justice and Health. Deputy McCartan quite properly asked whether, if we did define who are the qualified people, there would be sufficient of them in the country. As I understand it, the answer to that is “yes”, but they are under pressure because health boards were not in a position to make assessments with regard to allegations of child sexual abuse. Teams have been established or are supposed to have been established within each health board area with the necessary expertise to carry out such assessments and conduct such interviews. In so far as there may be a health board area that does not have a team available to it, that is the fault of the Department of Health and of the relevant health board. In Dublin there is a north side team and a south side team, one operating out of Our Lady's Hospital for Sick Children, Crumlin, and the other out of Temple Street Hospital, as I understand it.

If it is recognised that we need qualified people to carry out this type of work for the purposes of determining the truth or falsity of allegations of sexual abuse, we cannot say: Ah, well, if we do not have the qualified people we will go alone with unqualified people reaching conclusions and conducting interviews. We must remember that we are here dealing with the lives of children. These interviews, if not dealt with properly, can be as traumatic or even more traumatic than the experience the child may have had when being abused. We are dealing with an area of life that can destroy a family, if a false allegation is made, because it leads to suspicions, perhaps arising between husband and wife, that did not arise at all previously. We are dealing with an area of great sensitivity and concern. If we are going to deal with it in this way we would want to use qualified people. If we do not have sufficient qualified people then we must ensure they are put in place.

In examining who can be defined within the Bill as a qualified person, the [580] Minister should communicate with the Department of Health, and ascertain from the Minister for Health what teams exist on the ground at present who are undertaking this work; the extent to which they currently co-operate with the Garda; and the extent to which they will be able to co-operate in future in applying the provisions of this Bill. Indeed the Minister should ensure that, within each health board area, there are the necessary qualified personnel. There is a need to draw a distinction between the simple interview by a garda with a child or parents in a Garda station and an interview that involves the type of assessments about which I am speaking. That distinction should be drawn.

Acting Chairman (Mr. Stafford): Information on John Stafford  Zoom on John Stafford  Is the Deputy pressing his amendment?

Mr. Shatter: Information on Alan Shatter  Zoom on Alan Shatter  On the basis of the Minister's comments, I will not press my amendment at this stage, but I will certainly be retabling it for Report Stage if the Minister does not come back to the House with something more substantial.

Amendment, by leave, withdrawn.

Mr. Shatter: Information on Alan Shatter  Zoom on Alan Shatter  I move amendment No. 39:

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

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

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

Perhaps it would suit the House, to avoid repetition, if we took amendments Nos. 39 and 40 together since they deal with the same section and issue.

Acting Chairman:  If the House is agreeable. Agreed.

Mr. Shatter: Information on Alan Shatter  Zoom on Alan Shatter  I do not want to hold up the business of the House with undue [581] repetition on a day on which we are again over-heated in this Chamber. I think my colleague, Deputy Deasy, protested to the Ceann Comhairle yesterday about the fact that this Chamber does not have air conditioning, at the fact that this House does not ever appear to be able to regulate itself in a way that makes this Chamber liveable in. It is fortunate that there are only three of us here today. I do not know whether it is the heat that has driven out the Labour Party or whether they have just no interest in this Bill. Certainly they appear to have little interest in the justice area since they had no one in for the Justice Question Time and no one in the Chamber today on an issue of great importance, which I find extraordinary. But, in relation to the heat of the House, we are going to have to do something about this Chamber. Indeed if we are still here at 1.30 this afternoon I am going to set a precedent by removing my jacket. I do not think the breath of the nation will stop if Members of this House remove their jackets when conducting business in this House. It is quite extraordinary that we have to put up with the working conditions we have here. Obviously the heat has driven out the Labour Party.

Amendments Nos. 39 and 40 are interrelated and deal with the issue about which I spoke a few moments ago. Under the terms of section 15 (1) (b) — dealing with videorecording of interviews, there is a proviso which reads:

Provided that, in the case of a videorecording mentioned in paragraph (b),...

It does seem to me that while paragraph (b) may apply in other areas its drafters had child sexual abuse essentially in mind. Therefore, what the section boils down to is that, for a videorecording of a statement, made by a child who has been the victim of an alleged sexual abuse, to be admitted at the trial of the offence as evidence of any facts stated therein, the following provisos must be complied with:

(i) it has been considered in accordance [582] with section 14 (2) by the judge of the District Court conducting the preliminary examination of the offence, or

(ii) the person whose statement was videorecorded is available at the trial for cross-examination.

Section 14 (2) reads:

(2) If at a preliminary examination of an offence to which this Part applies the person in respect of whom the offence is alleged to have been committed is available for cross-examination, any statement made by him on a videorecording mentioned in section 15 (1) (b) may be considered by the judge of the District Court conducting the preliminary examination.

In other words, first, the videorecording must be considered by the judge in the District Court and, second, the person — presumably the child who has been the victim of sexual abuse — must be available at trial for cross-examination.

I am proposing two additions to this section. It would seem to me that these are two conditions the Minister should accept. This is not an issue that requires to be left in abeyance until Report Stage if Committee Stage is to mean anything. I am proposing that the third condition be that the person who conducted the interview which was videorecorded is available at the trial for cross-examination. In other words, if it is to be a qualified person, defined or undefined — be it a social worker, child psychologist, child psychiatrist or whoever, that person must be available to give evidence to the court. Fourth, I propose the condition that no leading questions be asked by the interviewer during the course of such interview.

The difficulty in this area is as follows: it is quite clear that if someone is to be judged on whether they are or are not a properly qualified person, at the very least they will have to go into the witness box and give evidence as to their qualifications; they are going to have to be available at the trial for the judge. If that [583] person has been conducting the interview, obviously the nature of any conclusions drawn by that person will be a matter of some importance with regard to the interview.

In the area of leading questions one of the huge difficulties in a whole series of cases in England to which I referred on Second Stage, was that it was discovered — in the context of the type of interview techniques I previously described — there was a difference between an interview carried out for forensic purposes and an interview for other purposes, to which I referred as therapeutic purposes. When interviews were undertaken by child psychiatrists and social workers, for so-called therapeutic purposes, they asked leading questions which were effectively putting words into a child's mouth. Then, having put the words into the child's mouth, the so-called therapeutic interview was used as a means of confirming that a child had been abused.

There was a whole series of civil cases in England where the courts held that the use of leading questions ensured that any responses received were entirely unreliable in that a young child would often respond, or could respond in a way, to please the adult interviewing him or her, or the child, who did not necessarily have the command of the English language of the adult putting the questions, could give answers to which adults gave a different meaning to the meaning attributed to them by the child. This is addressed at some length by the Law Reform Commission in their consultation paper and final report on child sexual abuse. The Minister has both reports so I will not delay the House by going into them in detail. In addressing the matter of leading questions, I now quote from page 83 of “A Law Reform Commission Report on Child Sexual Abuse”. Under the heading, “Leading Questions”, the report states:

In the Consultation Paper, we considered the controversy and debate [584] that has arisen in relation to the reliability and status of testimony elucidated by professionals from children suspected of being sexually abused. We pointed out that many workers in the area of child sexual abuse had modified their clinical techniques using the assistance and advice of the courts and legal experts so that the interviewing in many cases was more acceptable to the courts.

As the debate had not taken place in Ireland, the Law Reform Commission was to a large extent relying on the experience in England and elsewhere in this regard. At the time of this report, those professionals had modified their approach and this had started to be mirrored in the professional approach being taken by the teams established by the health boards, although perhaps not always mirrored by some other individuals who work in this area. It continues:

We also set out a summary of the stages of interviewing and the modified structured interview now in use in Great Ormond Street Hospital in London.

Indeed, the vast majority of the law cases to which I referred the Minister on Second Stage relate to the English Family Law Report, 1987, and derived from interviews carried out in the Great Ormond Street Hospital where this whole technique was pioneered.

It continues:

We provisionally recommend that:

(1) at no stage in the investigative process in relation to child sexual abuse prosecutions should the child be subjected to leading questions.

(2) This exclusion of leading questions should apply also in non-criminal cases where an issue of child sexual abuse arose.

There was no dissent from these provisional recommendations, which we accordingly confirm.

[585] The commission went into great detail on this matter in their report but there is no reference at all to this recommendation in the Bill before us. This recommendation is uniquely applicable to section 15 and in particular to the subsection which applies to the video recording of these interviews.

The Pigot Advisory Group were set up to advise on a code of practice for this area and what they suggested be covered by a code of practice is contained in Appendix A of A Law Reform Commission Report on Child Sexual Abuse. The code of practice details the practices that should be adopted in the type of interviews that are envisaged should take place under section 15 to determine whether an allegation of child sexual abuse is or is not properly made. Unfortunately, a great many of their recommendations are not contained in the Bill. I believe it should not be left to the Judiciary to put this code of practice in place through a series of decided cases in the same way as judges rules in the criminal law area have evolved over the years. This code of practice should be incorporated as part of the Bill and where possible should form a statutory part and where that is not possible should be put in place through ministerial order made under the Bill.

If I may, I will mark the Minister's card because if he does not table an amendment on Report Stage to provide for the making of ministerial orders to allow a code of practice to be put in place along the lines recommended by the Pigot Advisory Group, it is my intention to table such an amendment on Report Stage. There is no reason that this type of code of practice should not be put in place by legislators rather than being evolved through case law and judicial application.

The Pigot Advisory Group suggest that in relation to the timing of interviews:

The video taped interview should be conducted as soon as practicable after an offence has been reported — no more than several days — but allowing for sufficient time for inter agency consultation, [586] consideration of the circumstances surrounding the case and prior medical examination where appropriate. The video taped interview should broadly equate with a witness statement in which the first detailed account of a complaint is given to the police. A supplementary interview can be done in those cases where the prosecutor having viewed the video and considered the papers in the case, needs to elicit further information.

And that in relation to location:

Video taped interviews can take place in purpose built suites in hospitals or in police stations where suitable facilities are available.

They also deal with the type of equipment to be used. Under the heading of “Participants”, they state:

Ideally, the child should be interviewed by a single interviewer, nominated by the different agencies of child welfare and police department. With very small children, parents can be present.

There is no indication, Sir, as to the role parents ought to play. I appreciate that if an allegation of sexual abuse is made against a parent, it will certainly not be appropriate for the parent to be present at the interview but where the allegation of sexual abuse or the person suspected of sexual abuse is not a parent, for example, a baby sitter, a stranger or a teacher or some other person not connected with the immediate family, surely the parents should be given the possibility of being present and, in fact, there should be a clear rule stating that if they wish to be present they may be present. It should not be possible to obstruct their presence. However, there is nothing in the Bill about this.

The Pigot Advisory Group seem to be talking about interviews in the Garda stations rather than the more elaborate assessment I had in mind and they envisage that the interviewer will normally be a social worker or a police officer. However, they state that: “The interviewer [587] will normally be a social worker or police officer specially trained in the handling of child abuse cases.” In other words, the ordinary ban garda or social worker who has not had special training should not be involved in this area. They further state:

Because it is envisaged that recorded interviews will substantially replace examination-in-chief at the trial, interviewers must receive training in the law of evidence, especially as it relates to rules and procedures for the examination of witnesses in court.

Under the heading “Consent”, the group suggest:

Consent of child witnesses and their parents to the making of a video recording should only be sought where consent would be necessary if the interview were not recorded. However, the fullest possible information should always be given to interested parties. Where serious offences have been committed against children, video recording should be the standard and accepted way in which the evidence is given to the police and the courts. If a tape is to be used subsequently for training purposes, specific consent should be sought.

On the question of conducting the interview, the Pigot Advisory Group state:

The Committee endorsed the “stepwise” approach to the interview which requires the interviewer to proceed from the most general open aspects of the interview to the more specific.

The advisory group deals specifically with leading questions, the subject matter of this amendment. They state:

Video taped interviews should be conducted as far as possible in accordance with the rules of evidence which govern the examination-in-chief of witnesses in court, which it is designed to replace. Thus, leading questions should be avoided. Where children are concerned the courts already allow [588] some latitude in this area depending upon the child's age and understanding. We think the important point is that interviewers should never be the first to suggest that a particular offence was committed or that a particular person was the perpetrator. We do not believe that the courts would exclude fairly conducted interviews for purely technical reasons or because of the inclusion of occasional insignificant leading questions. Nevertheless, it should be remembered that crucial leading questions which relate to the central facts of a case must be avoided wherever possible. This may well result in the exclusion of the interview at court.

My amendment, in effect, means that no leading questions are asked by the interviewer in the course of such interview. That is essential because in my view asking leading questions can result in a very young child making a comment which an adult could regard as an indication that someone has sexually abused the child when the reality is that the child's comment was not intended to result in such a conclusion being drawn. Amendment No. 39 would ensure that the person who conducts the interview would be available to the court for cross-examination and would ensure that leading questions would not be asked. I think this should be set down very clearly at this stage in the use of the new technique in the context of court hearings.

As we are discussing amendments Nos. 39 and 40 together, I will now comment on amendment No. 40. Amendment No. 40 deals with the Pigot Advisory Group recommendation No. 8 — to which I have not yet referred — and with the Law Reform Commission's recommendation on page 83 of their report on the use of anatomical dolls. Amendment No. 40 deals with the issue of anatomical dolls to which I have already referred substantially. It seeks to insert additional words in section 15 (3). Section 15 (3) states that: “In estimating the weight, if any, to be attached to any statement contained in such a video recording [589] regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise”. I am seeking in my amendment to insert after the words “otherwise” the words “and save in exceptional circumstances regard shall not be had to any video recording of an interview in which anatomical dolls were used as an aid by the interviewer”. This would allow the use of an anatomical doll but only in exceptional cases where it is necessary to use it.

The Law Reform Commission, in making reference to their earlier working paper, state:

We also referred to the use of anatomical dolls by medical and police personnel in the investigation of child sexual abuse cases. We provisionally recommended that since, under the existing law, the courts will exclude statements which are obtained in circumstances unfair to the accused and convictions will in any event be unlikely without corroboration, the use of such techniques which are clearly of assistance to many of those professionally concerned with the investigation of possible child sexual abuse, should not be outlawed.

There was little dissent from this provisional conclusion. They go on to say:

We would endorse the view of the Pigot Advisory Group that they should only be used to help the child establish details with which he or she may have verbal difficulties once the general substance of a complaint is clear.

The Pigot Advisory Group state:

A code of practice should make clear that such aids should only be used to help the child establish details with which he or she may have verbal difficulties once the general substance of a complaint is clear.

In other words, they believe these dolls should not be brought into use at an early stage in the carrying out of an assessment and generally should only be regarded as of use for very young children who are not yet fully articulate. It is important [590] that we are circumspect about the evidential use of play with anatomical dolls in drawing conclusions as to whether abuse has or has not taken place.

The Minister may take exception to the words “save in exceptional cases”. He may feel that an amendment relating to anatomical dolls would be appropriate but that it could be phrased somewhat differently. Because many judges in this jurisdiction do not yet have a great deal of experience in the use of anatomical dolls and the dangers in that use — I admit that some of them have had that experience and voiced worries in cases of which I am aware — there is a very specific need in the context of section 15 (3) to draw the attention of a court to the specific dangers inherent in using anatomical dolls as part of the interview technique in determining, in a forensic sense, whether an allegation of child sexual abuse has any substance. There should be an express reference to this issue in section 15.

I have spoken at some considerable length on this very important matter. A great deal of concern has been expressed about the issue of child sexual abuse and I find it somewhat depressing that there are so few Deputies engaging in this discussion. I regret that the debate is becoming somewhat specialist as between the three lawyers in this House. As I said, this is a very important issue and I hope the Minister will look very seriously at these amendments. I hope he will indicate in his response how he and his Department intend to deal with and implement the recommendations of the Pigot Advisory Group, whether he disagrees with any of those recommendations and the changes he would like to see made to them. I believe there should be a rule of practice in relation to the usage of this section and the various problems associated with it, such as that contained in the recommendations made by the Pigot Advisory Group. There are one or two points in those recommendations with which I would quibble slightly but they are certainly much better than having nothing there at all; indeed, they have substantial merit. I should like [591] to hear the Minister's views on whether anything will be done about those recommendations.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  First, I should like to make a plea to the other two Members present in the House, both of whom, I understand, have been consulted by their Whips as to the likely progress we will make in regard to this legislation this morning. I understand it was specifically said by Deputy Shatter to his Whip that we would conclude the debate comfortably by 1.30 p.m. We have spent half the time available to us this morning debating section 15. I accept that the points made are very important. As Deputy Shatter correctly said, this is a very important and sensitive issue. However, I plead with him to send a signal to his Whip that we will not make considerable progress on the Bill before 1.30 p.m. This Bill constitutes a hallmark in the area of criminal evidence. Part IV, with which we will deal later, deals with the very important issue of competence and with compellability in regard to spouses as witnesses in criminal proceedings.

Deputy Enright has put down an important amendment in regard to the powers of arrest. I have put down an amendment which deals with the crucial issue of testamentary evidence by way of document and certificate in preliminary hearings in a District Court. Both the chairman and I dealt at length with this issue during a recent visit abroad by the Committee on Crime, Lawlessness and Vandalism. I would be outraged if, having made little or no progress on the Bill this morning, we were told at 1.30 p.m. that a guillotine would be put on the debate. Again I plead with both the Minister and Deputy Shatter to send some signal to their Whips that the placing of a guillotine on the debate at 1.30 p.m. should not be contemplated, which I understand is the intention.

The issues dealt with in these amendments are very crucial and important. The more I listened to what Deputy Shatter said the more I came to the conclusion that we should be working towards a [592] substantive section which would deal with the powers given to the Minister to introduce regulations dealing with the vast range of issues commented on by the Law Reform Commission and the Pigot Advisory Group. The clear indication is that the Law Reform Commission and the other committees who have looked at this area, have laid down very clear guidelines and have analysed many of the inevitable events which will occur and which must be addressed. The proposal that the person who conducts the interview should be available at the trial for cross-examination is almost a sine qua non of the process. If this is not already envisaged, it must be provided for as it is the counter balance, so to speak, to this very new and important provision which proposes the bringing in as a testamentary aid and evidence the video recording of an interview which had been made before the trial and even, perhaps before it was ever intended to bring a case to court. The proposal that the person who conducted the interview should be present at the trial, if necessary is a good proposition. It struck me that this was already intended in the legislation and if it is not then it must be provided for.

The second issue dealt with in the amendment is the proposition that no leading questions can be asked by the interviewer. That is a good proposal in principle. Both the Pigot Advisory Group and the Law Reform Commission said that no crucial leading questions should be asked. As a matter of practicality, there is a need to qualify the absolute embargo because if one asks, for example, the chairman, who is present in the Chamber and who is outside the debate, if he is Deputy John Stafford, in essence that can be regarded as a leading question. If the interviewer comes into the room and leads off by trying to win the confidence of the person being interviewed it is a very useful and permissible device to ask them leading questions which may help them to loosen up. When children enter a room where video cameras are in use and with strange surroundings they may tend to clam up. By [593] asking them their name it helps them to loosen up. Therefore, an absolute prohibition of leading questions, as suggested in the amendment, is not desirable. However, I accept the proposition advanced by the Law Reform Commission and in the Pigot report, that no leading crucial questions dealing with the central issue of the complaint being investigated be allowed. For example, to suggest what exactly happened or to suggest the identity of the person accused or suspected of the offence clearly should not be allowed. We should agree to the suggestion that these matters be provided for by way of regulations.

The third issue relates to the use of anatomical dolls. I share the concern expressed by Deputy Shatter with regard to the incredible suggestiveness of these dolls. They are designed in such a way as to help people to describe rather than conclude exactly what happened. In some circumstances they were used by well-intentioned social workers to suggest rather than to help as a descriptive aid. It is important that we be cautious about how these dolls are to be employed. One difficulty was that a child in the close confines of a room with a social worker or a medical practitioner, by interchange with the interviewer, learned about what parts go where so that when the time came to give testimony the child repeated what he or she had learned in the room. One can imagine the dramatic impact it would have on the jury to see the child correctly fitting the anatomical dolls together. I believe it is now the practice not to allow anatomical dolls at criminal trials and they are not relied upon in testimony before the courts.

Deputy Shatter has suggested the inclusion of “save in exceptional circumstances” may be a restriction. We should be working more towards the formula in the Pigot report of these dolls being used simply as aids to description rather than to make suggestions. I support the general thrust of the amendments but because there are so many other matters to be addressed that were dealt with in the Pigot report and by the [594] Law Reform Commission, the Minister should best address this issue by agreeing to introduce on Report Stage a comprehensive provision allowing for him or the Minister to introduce regulations appropriate to these matters, indicating the general thrust of the regulations.

Mr. O'Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  In relation to the first part of Deputy Shatter's amendment, he made two points in support of his proposal. The first point is that the interviewer would have to be available at the trial to give evidence of his or her qualifications, but I do not accept that. It is up to the court to satisfy itself that the interviewers are appropriately qualified. The prosecution would have to produce all the proof in this regard and they can do so by ensuring that the interviewer is present. Alternatively, section 5 provides that documentary evidence as to qualifications shall be produced — indeed, that is one of the main reasons for section 5. I would point out that if the prosecution does not call the interviewer but the defence wish to call that person there is nothing to prevent them from doing so. As the amendment is framed it would be an essential condition to admitting videorecordings that the interviewer be available, but I am not sure that should be the case. If, for some reason, the interviewer is not available — for example, if the interviewer has died or is not available for some reason——

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  Many of these people emigrate. Deputy Shatter will agree that a feature of professional life in this area is that people go abroad to gain further experience.

Mr. O'Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  There are many reasons why the interviewer would not be available, and it would be unfair that the interviewer be available in one case and not available in another. Therefore, I cannot accept the proposal.

The second part of Deputy Shatter's amendment relates to leading questions. I do not think the debate so far has taken sufficient account of the role of the court in this matter, and the role of courts generally, to exclude, as being inadmissible, [595] any evidence that contravenes the defendant's constitutional rights or that is basically unfair. Not only does the court have a wider constitutional role in this matter but it is specifically directed by the terms of this legislation. I have some sympathy with Deputy Shatter's proposal regarding leading questions but I wonder if it is necessary in view not only of the right of the court in this regard but of their duty to exclude what is unfair to the defendant.

Deputy Shatter quoted an extract from the report of the Pigot committee in Britain. That report states: “We do not believe that the courts would exclude fairly conducted interviews for purely technical reasons or because of the inclusion of occasional insignificant leading questions”. I could not accept an amendment which totally excludes all leading questions. Deputy McCartan made a very good case for allowing certain types of trivial leading questions which do not change the nature of the evidence and do not balance what is being said one way or the other. I cannot give sympathetic consideration to the total exclusion of all leading questions because it is possible that harmless leading questions may be asked. The Pigot Advisory Group, in referring to crucial leading questions said:

Nevertheless, it should be remembered that crucial leading questions which relate to the central facts of a case must be avoided wherever possible. This may well result in the exclusion of the interview at court.

The courts are now very aware of the danger of leading questions and would be willing to exclude evidence which is obtained on a videorecording by way of leading questions being asked. They are not only entitled to do so but are obliged to do so. Deputy Shatter's amendment No. 40 referred to anatomical dolls and states:

and save in exceptional circumstances regard shall not be had to any videorecording of an interview in [596] which anatomical dolls were used as an aid by the interviewer.

My initial inclination is to leave the question of admissibility of videorecordings in which these dolls are used to be governed by the court in the exercise of its duty to exclude any evidence which should be excluded in the interests of justice. The Pigot committee recommended for inclusion in its suggested code of practice, under the heading “Anatomically Correct Dolls”:

A code of practice should make clear that such aids should only be used to help the child to establish details with which he or she may have verbal difficulties once the general substance of a complaint is clear.

I have a certain sympathy with that. I am alive to the dangers of evidence secured by the use of these aids, and Deputy McCartan has made a very good case. However, Deputy McCartan's case can also be turned the other way around. The Deputy is saying that because it has been demonstrated that this thing can give a misleading impression, because the witness can learn the process, the courts are inclined to exclude the evidence. If the courts are so alive to the possibility that they are inclined to exclude the evidence in these cases, it should not be necessary to write in a specific power to exclude. The Pigot committee seemed to suggest that these artificial devices should be the exception rather than the rule and that they should only be used when it is clear what the substance of the complaint is. I would prefer to leave it to be regulated by a code of practice, but I have no objection to a suggestion to my Department that they look at amending the section in a way which would make it clear that the use of artificial devices would only be in cases where the general substance of the complaint is clear.

With regard to Deputy McCartan's question on the recommendations of the Pigot committee, I will ask my Department to draw up an administrative code of practice which will contain guidelines in this area.

[597] Progress reported; Committee to sit again.


Last Updated: 22/05/2011 16:13:27 First Page Previous Page Page of 124 Next Page Last Page