text:
Private Business. - Road Traffic Bill, 1966: Committee Stage (Resumed).
Wednesday, 3 July 1968
Seanad Eireann Debate
Debate resumed on the following amendment:
In subsection (3) (a), line 33, to delete "is committing or"
[926]Acting Chairman (Mr. Sheldon): Amendments Nos. 9, 10 and 11 are being discussed together.
Mr. Garret FitzGerald: Amendments Nos. 10 and 11 are, in a sense, mutally conflicting, one being more radical than the other, proposing the deletion of a paragraph.
Acting Chairman: Separate decisions may be had.
Mr. Garret FitzGerald: My point is that it is difficult to propose two conflicting things simultaneously, though it is not beyond my powers.
Acting Chairman: Only amendment No. 9 is officially before the House at the moment.
Mr. Garret FitzGerald: The first point is that in proposing the deletion of "is committing or" we are trying to establish, first of all, what is the purpose of the words. It is reasonable that somebody who in the opinion of a garda is committing an offence should be arrested, even without warrant, but if he has not completed the commission of the offence it seems unsatisfactory that he should be arrested. The offence here, of its nature, is not of a continuing character. It is the refusal or the failing to comply forthwith with the requirement of a garda. The purpose of the words "is committing or" is obscure. The failure is to comply with the requirement to have a breathaliser test, which happens at a point of time, but either the person has or has not failed to comply forthwith. Has he or has he not refused to have the test or failed to comply? If he has, then he has committed an offence. Because the offence is one which he cannot go on committing over a period, I cannot see the point of time during which a person can be arrested in the long process of committing the offence. To use the words "before the commission of the offence" would be reasonable but the use of the word "forthwith" indicates the immediate, instantaneous character of the offence and, therefore, I do not see the purpose of the word. As there does not seem to be a valid purpose [927] for this provision, for these words, they might give rise to an injustice in interpretation by the Garda Síochána. It seems better, therefore, to have them deleted but I should like to hear why the words were found necessary in the first instance. If the Minister has a good case, then the question can be considered on its merits.
The second point which arises, on amendment No. 10, is in relation to paragraph (b) of the same subsection. This is a broader issue because here we have proposed the giving of a right to the Garda Síochána to arrest without warrant a person who is or has been in charge of a mechanically propelled vehicle in a public place with intent to drive or attempting to drive the vehicle, but not driving or attempting to drive it. It seems to us that to make it a statutory offence, subject to the penalty of immediate effect and subject to a breathaliser test, is going too far.
The breathaliser test can reasonably be imposed when somebody is driving or attempting to drive a vehicle, not if he simply has the intent to attempt to drive it. For that reason we propose the deletion of the subsection.
Mr. McDonald: I support Senator FitzGerald in these amendments. Subsection (3) (b) goes much too far. I agree with the breathaliser test system but it is too much that it should be imposed or that the person should be subject to arrest without warrant if he emerges from a public house with some drink taken and has in his pocket the keys of a car which he owns. Even if he was completely intoxicated when he arrived at the car, his wife, who might be a pioneer, might intend to drive the car but the man may be picked up for drunken driving. As Senator FitzGerald has said, if a person commits an offence he should be subjected to the test but saying he should be subjected simply because he owns a car and that he is near it while under the influence of drink is going much too far.
If the Minister wants this legislation to be successful he should have some regard for the people whom the legislation [928] is supposed to be designed to protect. Therefore, to suggest that a person in a public place, having had some drink, is committing the offence before he gets into his car is wrong. The subsection says "but not driving or attempting to drive". Therefore, I strongly urge the Minister to drop the paragraph. Surely it is sufficient for the purpose of the Bill that if a garda should find a man driving a car while under the influence of drink the test should be applied and if it is found positive the person should be penalised. I do not think a provision like this applies in England.
Mr. E. Ryan: I cannot see how this is in any way a radical departure from the 1961 Act which provided in nearly exactly the same way for driving while drunk or being in charge of a vehicle while drunk. Under the 1961 Act, it is an offence to be in charge of a car while under the influence of drink, and consequently it seems only logical that it should be possible in this Act to ask a person who is in charge of a car, as well as driving it, while under the influence of drink, to submit to a test.
The use of the words "is committing" arises out of the wording of subsection (2)—"a person who has been driving or attempting to drive a mechanically propelled vehicle" who refuses to comply forthwith. If a person refuses, he has committed an offence, but in respect of a person who fails, one cannot say he has come to the end of a stage of failing——
Mr. Garret FitzGerald: Failing to comply forthwith.
Mr. E. Ryan: Failing can go on for a certain time.
Mr. Garret FitzGerald: But forthwith cannot.
Mr. E. Ryan: He has not refused but he is failing to comply and consequently he is committing an offence. A logical way of describing what he is doing is that he is failing to do it.
Mr. Garret FitzGerald: This I cannot accept. The relevant part in subsection (2) refers to the person who refuses or fails to comply forthwith [929] with a requisition under this section and says that he shall be guilty of an offence. There is no question here of a continuing process. He is asked to comply and he either refuses or does not immediately accept the test and as he has not complied forthwith he is deemed to have committed an offence.
Mr. Blaney: In the matter of amendments Nos. 9 and 11 I would say that it is quite possible for a man to refuse or fail by merely remaining mute, it may be mute of malice or it may be that he could be in a condition that he would not necessarily be mute deliberately and it is here we have the difficulty of determining in those circumstances if a person was mute when he had concluded the commission of the offence. This is one of the cases where the word "forthwith" really highlights the fact that it was at that time and not the day after or two days afterwards that we are speaking about. One good reason for this is that the man can fail to comply by remaining mute. This has got to be taken into account and I do not think anybody can object to it particularly as the remaining mute need not necessarily be deliberate. He could be incapable of being other than mute and this would hardly be the case where one would expect a member to stand around until the person got to the stage where he would be other than mute.
As far as amendment No. 10 is concerned it seems to me that if it was accepted it would make the Bill pretty unspecific in dealing with persons drunk in charge or driving while drunk. A guilty person may well refuse the breathaliser test and deliberately choose to accept a lesser offence in order to avoid prosecution for a far more serious offence. All this must be taken into the context of the Bill and the acceptance of amendment No. 10 would make the Bill completely unspecific in dealing with a person drunk in charge of a car. Is it not better to deal with persons drunk in charge in order to save themselves rather than to take the view that injustice might be done under this section?
I also feel from the general remarks made by those in favour of the amendments [930] that they may in some way be of the opinion that we are dealing with the matter solely with regard to the offence of being in charge of the car. What we are really dealing with is the refusal of a person to take the breathaliser or some similar test in circumstances where it is obvious to the garda that the test should be carried out. It is the refusal to take the test that is in question rather than the question of whether the test should be applied. There is probably a little confusion in this regard and some people seem to think that we are dealing with the offences themselves. In this case the section deals with the refusal to have the test in circumstances where the person concerned obviously appears to be drunk in charge or driving while drunk.
Mr. Garret FitzGerald: I do not think the Minister can make that kind of distinction between this and another section. The purpose of the section is to assist in bringing to justice people who are committing an offence. It is the existing law that to be drunk in charge of a vehicle is an offence. This particular provision has been subject to criticism and objection because injustice can be done under it, as in the case of a person who is sleeping in the back of the car without any intention of driving. The introduction of the breathaliser test here to reinforce an already dubious law is most undesirable. This is all part of the scheme of things to bring people to justice who may be drunk while driving.
On the question of "is committing", I do not think the Minister has made any better case than that made by Senator Ryan. The wording is "fails to comply forthwith". Whether a person is mute through not being able to answer or mute through malice, the mere fact that he does not comply immediately when asked to do so means that he has committed an offence under section 2. If the word "forthwith" means immediately then, as soon as he is asked, he must comply instantaneously and if he says nothing and does nothing for a few seconds he has committed an offence under the section. I cannot see the need for the words "is committing".
[931]Mr. Yeats: If Senator FitzGerald's interpretation of the word "forthwith" is correct it might mean that the amendment would be satisfactory but I have great doubt about his interpretation of it. I can foresee the case of a man being told by a garda to take the breathaliser test and who does not comply in five or ten seconds and is arrested and I can see the solicitor for the defence in such a case saying that he did not get a proper chance to comply. I can see such a case being brought for decision to the Supreme Court, the question being as to whether five or ten seconds was sufficiently long. I do not think that Senator FitzGerald's interpretation of the words would be followed by the courts and to save the community from having to indulge in this form of legal interpretation, I think the words "is committing" are proper. If a garda tells a man to take the breathaliser test and he says or does nothing, then he can arrest him on the grounds that he is committing an offence. The presence of these words in the section will save legal argument.
Mr. Garret FitzGerald: Senator Yeats has made a good case in favour of this if the word "forthwith" means what he thinks it means.
Mr. E. Ryan: It does not mean immediately anyway.
Mr. Garret FitzGerald: If we can be assured by the legal people that it does not mean immediately that is all right but nobody, until Senator Yeats spoke, has said that. If that is so, I would like to hear it put forward. With respect to Senator Yeats like myself he is not a practising barrister. I should like to hear from the Minister or from Senator Ryan that the word "forthwith" does not mean what I think it means.
Mr. Yeats: I doubt if the Supreme Court would have recourse to a dictionary.
Acting Chairman: Amendment withdrawn?
Mr. Garret FitzGerald: I was hoping for some legal advice.
[932]Mr. E. Ryan: You have got it.
Mr. Garret FitzGerald: From Senator Yeats? I see.
Mr. O'Quigley: The amendment is being pressed.
Amendment put and declared lost.
Amendments Nos. 10 and 11 not moved.
Question proposed:"That section 28 stand part of the Bill."
Mr. O'Quigley: On section 28, I do not follow at all what the meaning of paragraph (b) of subsection (3) is. It seems to me that there is very bad drafting in this subsection. It says:
A member of the Garda Síochána may arrest without warrant—a person who is or has been in charge of a mechanically propelled vehicle in a public place... fair enough
That does not seem to me to be intelligible English. I think I know what they are getting at, that if a person is in charge of a mechanically propelled vehicle with the intention of driving it or is in charge of a mechanically propelled vehicle with the intention of attempting to drive it, but if that is the idea it is certainly not couched in intelligible English. I have read it time and time again and I can make no sense of it. I should like to hear the Minister's view on that. It goes on:
...but not driving or attempting to drive it...
I do not know what it all means to tell the truth. I do not know if anybody else does.
Mr. Garret FitzGerald: It is a matter of syntax rather than grammar.
Mr. Blaney: One thing that I think is pretty vital is that this wording is taken from section 50 of the 1961 Act. That has been going on for seven [933] years and it has never given any bother whatsoever. That is probably more than can be said for some of the other things we have done and may yet do. We have had experience of its operation and in that seven years it has not shown itself to have any of the failures or weaknesses pointed out by the Senator.
Mr. McDonald: That may well be, but the Minister must remember that under the existing legislation before a member of the Garda Síochána would approach any driver the driver would be obviously intoxicated, but with the proposed breathaliser test the person certainly need not be drunk because from what I gather it does not take very much drink to have a sufficient amount of alcohol in the breath to trigger off this mechanism. I should like to remind the Minister that a person can be to all appearances cold sober and yet the very fact that a garda might see him coming from a public house and getting into a car, if business is not too good, he can chance him with one of these tests. I feel that under the changed circumstances subsection (3) (b) is altogether unnecessary and too strong and most unfair to the majority of the public.
Mr. E. Ryan: When you read that first I agree with Senator O'Quigley it does not seem to make sense but I feel, on rereading it, what is meant there is a person in a public place with intent to do one of two things, the intent to drive or to attempt to drive. If you read it that way I think the meaning becomes clear. The intention may be to do one of two things, to either drive or attempt to drive.
Mr. Yeats: It is perfectly straightforward.
Mr. O'Quigley: If that is so, it certainly is not anyway clearly expressed. It is probably what they are trying to get at. The fact that it is in section 50 of the 1961 Act does not matter. Of course, it should never have been allowed through in the 1961 Act but that was passed at the end of July.
Mr. E. Ryan: How did you miss it?
[934]Mr. Garret FitzGerald: It was in July.
Mr. O'Quigley: It was pushed through at the end of July in the same way as the Civil Liability Act which we were told could not be amended and the Courts of Justice (Supplementary Provisions) Act. All three Acts went through in the same way. I think the Minister might have another look at this because section 50 of the 1961 Act was not quite as important and would not be as much in use as this is going to be. Certainly there are people who are going to reject this new mechanism, this breathaliser, and I rather think that this section will be used a great deal more than section 50 was used since the 1961 Act was passed.
There is another matter that arises on the section. I wonder if the Minister can give us any indication as to the type of mechanism or contrivance that will be used. Will it be kept in such a way that it will always be in a hygienic condition? Will it be of such a kind that nobody can reasonably object when it is presented to them by the Garda? One can see people having objections if it is handled in a particular way with paw marks and so on. One can imagine a person saying: "I will not take the test on that particular one." He might do it on another kind.
Mr. Garret FitzGerald: There is another matter that I should like to take up. It was raised in the other House and not dealt with satisfactorily I think. It is the question of when this test can be imposed. Subsection (1) says:
Whenever a member of the Garda Síochána is of opinion that a person in charge of a mechanically propelled vehicle in a public place has consumed intoxicating liquor, he may require him to provide in the prescribed manner a specimen of his breath....
It is not required that this shall be done at the time when the person is driving or attempting to drive or is in charge of with intent to drive a mechanically propelled vehicle. Does [935] it means that this test could be imposed at any time afterwards? All that is required is that a member of the Garda Síochána should be of opinion that the person has consumed intoxicating liquor and that he has been in charge of a mechanically propelled vehicle. It is not clear to me that the action of requiring the test must take place when the person is in charge of the vehicle. This may appear implicit in the words: "in charge of" but it does not seem to me to require that the test be imposed at that time. I would be glad of the Minister's assurance on this. If it is the Minister's interpretation that what this means is that the test can only be imposed when the person is in charge of the vehicle, then I would be reassured but it is not clear to me that that is the intention of subsection (1). I wonder if the Minister could comment on that?
Mr. E. Ryan: I should like to mention the phraseology which is used at the beginning of this section. It says: "Whenever a member of the Garda Síochána is of opinion that a person in charge of a mechanically propelled vehicle..." If one is to take this literally, the Garda may form the opinion.
Mr. Garret FitzGerald: Quite so.
Mr. E. Ryan: In other words, he can form this opinion capriciously. I would ask the Minister to have another look at this phraseology. Even a judge who forms an opinion and gives a decision on that opinion may often be upset unless he can show there was evidence to support the opinion which he formed. I should like to draw the attention of the Minister to the fact that in the Criminal Justice Act, where there are somewhat similar provisions, the phrase "is of the opinion" is not used. The phrases used are "where a garda has reasonable causes for believing" or he "reasonably believes something to have happened which would constitute an offence" or reasonably warrants his believing such and such a thing to be done. I would suggest one of those phrases would be more appropriate than saying "whenever a [936] member of the Garda Síochána is of opinion". I would ask the Minister to look at that between now and Report Stage.
Mr. Garret FitzGerald: I would support this simply because it is something we raised before and we had it recently with the Minister for Industry and Commerce on the anti-dumping legislation and he did devise a different phraseology.
Professor Stanford: I should like to support the point made by Senator O'Quigley. It is very important that the public should be assured by the Minister that these breathalisers will be in hygienic condition every time they are used. It is, of course, only an administrative matter but I hope the Minister will give us his full assurance on this point, otherwise there will be very grave reasons for refusing to accept some kind of unhygienic instrument if presented.
Mr. Blaney: On this matter of the hygiene of the apparatus to be used. I can assure the House—indeed, the Dáil has already been so assured—that the apparatus or the part of it which could in any way come in contact with the person, that is the mouthpiece, will be completely hygienic in each case and there will be no case of its reuse. They will be properly packed. This is apparently what was envisaged and that assurance has been given. I merely repeat it here.
While we are on this another point mentioned by Senator FitzGerald was whether in the giving of a test or the seeking out of a person to allow himself to be tested this will be done in a public place. There is no question of following the person around to his home or some other place, seeking him out to apply this test. I think it was Senator FitzGerald who raised something on this and I want to say that it is in the public place this will be applied and not by following the person around to wherever he is.
This question of "of opinion" has been pretty well hammered around the Dáil. I think it was in a case in relation to the Offences Against the State Act, and perhaps the Senators have knowledge [937] of this, that this phrase was regarded as a better formula than possibly the alternative which might be suggested, for instance, "satisfied" rather than "of opinion". In the case of substituting, for instance, the word "satisfied", the Supreme Court in broad terms came down with the pronouncement that to use the word "satisfied" in a somewhat similar context would imply a somewhat judicial decision and that, therefore, the words "of opinion" were in those circumstances better words. This was pretty well gone into in the Dáil and the Dáil were satisfied that "of opinion" was better than "satisfied" in circumstances of this nature and the Supreme Court earlier in somewhat similar circumstances on an earlier piece of legislation had so pronounced. So, we more or less depend, rely and rest on this particular view, as stated in the Supreme Court, and have inserted those words "of opinion" rather than any other form of words that might be thought to be useful or might be thought to be a substitute for it.
Mr. Yeats: I am worried about one of the things the Minister said. I understood him to say that the breathaliser would have to be used in a public place, that the gardaí could not go into a man's house but that does not seem to be what the section says. It does not say that the breathaliser should be used in a public place and it would be highly undesirable that that should be so. If it had to be so used a drunken man could travel down the street, go into his house and he would then be safe from the gardaí and they could not require him to use the breathaliser. I cannot see any purpose in this and I do not think that is the meaning of this section.
Mr. Rooney: I was going to take up the point of a member of the Garda being of opinion. Take the owner of a private car who goes into town with his wife driving. He gets more than his share of drink, comes out and sits into the passenger seat of the car. The wife leaves the key either in the dashboard or in the pocket of the owner of the car who now happens to be the passenger. Is the garda entitled to [938] approach this passenger, who is the owner of the car and normally drives it, and is he entitled to ask that passenger to submit to this test?
Mr. Blaney: I did not quite get that.
Mr. Rooney: I am saying this man who normally drives his own car goes into town with his wife one day and gets blind drunk. She goes off shopping and he sits in the passenger seat. The key is in the dashboard or in his pocket. He is not in charge of the car now. The garda walks up to him and sees he is blind drunk. Is the garda entitled to insist on testing that passenger?
Mr. O'Quigley: He is going to allow his wife to drive in that case.
Mr. Blaney: How would the garda know all this? How would he be aware his wife was in town, sober, and driving the car if the key was in the man's pocket?
Mr. Yeats: The wife should keep the key.
Mr. Rooney: That is the point I am making. This man had no intention of driving. His wife is in town to drive the car. Are the gardaí entitled to insist on that man submitting to a test?
Mr. Murphy: I am worried about this section and the Minister may be able to clear up the point. We are talking about an offence committed under the section and the only offence is a refusal to breathe into the apparatus. In subsection (3) (b) we are saying that:
A person who is or has been in charge of a machanically propelled vehicle in a public place with intent to drive or attempt to drive the vehicle but not driving or attempting to drive it and who, in the opinion of the member, is committing or has committed an offence under this section.
A man drives to a pub and takes a few drinks. When he comes out he decides that, in fact, he has taken too much drink, that it would not be wise [939] for him to drive the car. He can, nevertheless, be approached by a member of the Garda and is asked to breathe into the apparatus. If he refuses to do so, he is guilty of an offence even though he may have been very sensible in thinking, that having taken too much drink but still responsible, he is not fit to drive. Under the section, as drafted, he can still be regarded as guilty of an offence. If I understand it correctly, it is unreasonable. Surely when a person decides he has taken too much drink and that he will not drive, he should not be guilty of an offence. That is wrong. Perhaps the Minister would clear my mind on it.
Mr. Rooney: The point I am making is that this gives power to a garda to insist on a passenger giving a breath test.
Mr. Murphy: He is still in charge if he has a key in his pocket.
Mr. O'Quigley: He is brought to the Garda station. Is it fair to say he is in charge?
Mr. Blaney: A number of points have been raised. I think they are all somewhat related, as they may well be, to the section but they are related in a more detailed sort of way. One is that raised by Senator Rooney. He spoke about the usual driver of a particular car in a local town where people know of the car. He goes to town with his wife. He goes off and gets well plastered and his wife goes elsewhere shopping. Having had enough—and he is unlikely in those circumstances to call it a day before his companion returns—he decides to cut his losses, get out and sit in the car. If these circumstances were as related by Senator Rooney, why would the wife or companion not have the key since that would be the person who would drive the car? But, allowing for the fact that he is still the owner and he takes the keys from whoever is driving and sits in the car and is clearly and obviously and ultimately unfit to drive if he underwent this test, it is unfair and not necessarily correct to suggest that he is obliged to undergo the test and that [940] if he fails to do so he has committed an offence. He need not necessarily undergo a test. He may be taken to court and he probably will be. If he is prepared then, as he would be in such circumstances, to swear that it was his intention not to drive, that he had no intention to drive, that the car belonged to him, that he had the keys, that he certainly was not going to drive the car and if his wife could come into the box as well and say that she had the intention of driving the car and would drive it back home, then the court would decide on the facts and I would have no doubt as to what the decision of the court would be.
He has been genuinely brought to court with all its embarrassment and so on but, nevertheless, it is the worst that can happen to him, and in doing this it is not because we want to get that sort of person into court but it is to get the other type into court. We have to frame the law for this latter sort of case with the consequence that by refusing to take the test the other type of person would have to go to court.
You are dealing with two types, one who is blameless and the other who is to all outward appearances blameworthy. I cannot see short of the cases going to court and letting the court decide how the non-genuine and the genuine cases are to be distinguished. If such a genuine case does arise and the defendant swears that this was so and he can, in addition, bring in his companion to add something to his evidence, I have no doubt as to what the court's final finding would be on his intention to commit an offence. That is what we must rely on in this particular type of case. There will be all sorts of versions of that case, some genuine and some far from it. In matters of that nature we can only depend on the courts to unravel the non-genuine from the genuine so that the law we are proceeding to pass in the House of the Oireachtas is, in fact, doing a job that badly needs to be done in this type of matter.
Senator Yeats was disturbed in that he felt that in subsection (1) of section 28 there was nothing to say that those other than found in a public [941] place were untouchable. I think what should be read here is that the subsection must be read as a whole. There is another feature about it. If a person leaves a public place and if he has been observed leaving that place and going into private property, whether his own home or other private premises, there is no law to give any garda right to follow or make an entry to that private property. He will have to go through the normal formula to get a warrant, by which time the bird will presumably have flown or could have taken off.
Mr. Yeats: People can drink a whole lot more and get out and away.
Mr. Blaney: If I was ever to find myself in that position, I would not be in the house when he came back with the warrant. That is one extremity. What sometimes occurs is that, if a man has taken ten glasses and is drunk, then after detection he takes five more. These dodges, of course, are indulged in. Perhaps the fellow who has reached such a stage that he cannot run away will as a last resort put another bottle on top of two and say he did it after the garda left. There is this, that under the powers proposed to be given under this Bill private property is still private property. This is a far bigger question than is proposed in the Bill. We could if we decided to do it make it very much stronger but we are not proposing that they could invade private property. Something like this can be done in England, I think, at the moment under the most recent law.
Mr. Yeats: It should be done here.
Mr. Blaney: We are not proposing to do it here. It may happen that in the course of the exercise of the powers proposed here it may be shown to be required, and it will then be necessary to come back to the two Houses but at this stage we feel that we should treat it on this basis without invading privacy of the home and so forth, preserving the inviolability of private property. We should try it without that at first and if it does not work I have no doubt that we will have to come into the Oireachtas and ask for something more extreme.
[942]Mr. O'Kennedy: They may have to have another referendum to amend the Constitution.
Mr. Blaney: That is another day's work.
Mr. Rooney: If my memory serves me properly this exercise is not unknown and it has happened that a person under the influence of drink has been followed to his doorstep off the public road. Convictions as a result, I think, have followed in this country even if the law does not give power to do so. The point I wanted to make when I was speaking in relation to the power of a garda to insist on a passenger in a car submitting to a test is this: I mentioned that the car owner was even in the passenger seat and not the driving seat of the car. That was the point I was trying to bring out, that apparently a passanger in the car can be compelled to submit to this breath test if the garda believes that he is or has been in charge of the car.
Mr. Blaney: On that again we have to remember that the garda would not do it without having some sort of belief that the passenger in question either was in charge or had been in charge of the car, nobody else was, in fact, in charge immediately before this person was met, and that this person had driven the car in a state other than a fit state from an intoxication point of view. In those circumstances undoubtedly the garda would be entitled to seek to have a test taken or given. On the other hand, if those were not the circumstances the passenger undoubtedly has the right to refuse. If he is charged and taken to court, again if this was a genuine case of the passenger not driving or not attempting to or not being in charge of the car, if he refused a test and was accused of being unfit, if he could satisfy the court that this was the case, then again I feel that we must rely on the court to so declare that it was a genuine case and that that person is found not guilty. We cannot go further than that in this case, but before it got to the court stage the garda must have had some reason obviously to come to the opinion that that person was unfit and was in [943] charge of the car or attempting to drive. These things are not all that easily come by. I doubt if there is any grave danger, taking everything into account, of abuses of this nature taking place. Even if there is, in the last analysis the court will determine in such cases whether the defendant in such cases was genuine or non-genuine, and find him guilty or innocent according to the evidence.
An Leas-Chathaoirleach: Amendments Nos. 12 and 14 should be taken together, with separate decisions if necessary.
Mr. O'Quigley: I ask leave to withdraw amendment No. 12 for this reason, that it is not properly drafted. The amendment is incorporated in the wrong position. It should have been put in at the end of the subsection. That is not my fault.
Acting Chairman: Before anybody gets a wrong impression, amendment No. 12 was not withdrawn. It was not moved.
Question proposed: "That section 29 stand part of the Bill."
Mr. Yeats: In subsection (4) we have this obnoxious phraseology.
Mr. O'Quigley: I wanted to incorporate a new amendment into section 29 so that it would read exactly as the Minister wants it, and so that there would be no exception taken to it, but it happens that the contriving was not right and I hope that that will not be the fate of amendment No. 14.
On the section itself, this is what this Bill is about. This is the section which provides that the blood alcohol level of 125 milligrammes per 100 millilitres of blood, whatever that may mean, will be accepted as a fair indication of sobriety or drunkenness as the case may [944] be, as the basic line. The Minister will be aware that there is a good deal of not unreasoned opposition to this whole new idea of fixing a level of alcohol in the blood for the purpose of offences under the Road Traffic Act. The truth is that the Oireachtas must try to fix some standard and say that if you have more than that you are going to be deemed to be drunk, and that is what is being done under this Bill. The level that is laid down is, in fact, extremely generous.
According to what Professor Hickey says in the addendum to the medical report—and this must illuminate us on the extent to which we are permitting people to consume alcohol—in general it may be stated that a man weighing 11 stones would be unlikely to exceed a blood alcohol level of 125 milligrammes per 100 milliliters of blood unless he had drunk more than six small whiskeys or gins in a period of approximately two hours or more than four pints of stout or beer in the same period. We are, therefore, allowing over as short a period of two hours what I certainly would not drink, six whiskeys, over a period of two hours. He fixes this figure at exactly my weight, 11 stone, and you would not have unless you exceeded this figure 125 milligrammes per 100 milliliters of blood. That is a rather generous amount of alcohol to allow people to consume. In this Bill we are imposing very strict standards and it may be that on the basis of experience the legislation may have to be revised because it may turn out that the alcohol level in the blood is too high for safety.
It is very important that the Minister for Local Government—who was always in charge of road safety—and the other road safety interests involved should embark on a form of education in relation to drinking, driving and eating, because one finds in the experiments carried out by Professor Hickey, and we know from our experience, that when food is associated with alcohol the consequences are not nearly so devastating. We find that a person of 45 years of age, weighing ten stone to 11 stone, of regular, moderate drinking habits, can consume six [945] whiskeys in a period of 50 minutes with a meal and show no signs of intoxication at the end of the affair and be fit to drive. Again, when the same type of person consumes two glasses of sherry—the upper class type —three glasses of burgundy and three whiskeys——
Mr. O'Quigley: The aperitif is all right. He could have a few Irish coffees afterwards—nothing wrong with that; this is the kind of thing being done—and find that that amount of drink consumed with a meal will leave him with no signs of intoxication, still fit to drive. On the other hand, a person who consumes six whiskeys during a period of 1½ hours, three hours after a meal, has been found to be unfit to drive.
Mr. O'Kennedy: What kind of meal?
Mr. O'Quigley: I take it that it was the ordinary dinner type meal.
Mr. O'Kennedy: There are meals and meals.
Mr. O'Quigley: If you have a meal without meat it is not as effective a safeguard against intoxication as a meal with meat. It is important that those concerned with road safety should emphasise the fact that people become intoxicated more quickly on empty stomachs than on full stomachs. Whatever are the permutations and the combinations of that, these things should be made known to the public. The road safety authorities should also point out that there are certain mixtures that tend to make people quite intoxicated more quickly than others. I have heard it said that it is all nonsense that you become more intoxicated by mixing drinks—that really what makes you intoxicated is the amount of alcohol you consume. Experience, however, is that if you take certain mixtures the consequences are not so happy.
Before these tests come in, therefore, the Minister should embark on an [946] intensive campaign of propaganda designed to point out to people the dangers of drinking on an empty stomach, or of fast drinking. He should try to get people to drink in such a way that will minimise the possibility of their getting drunk. That would be some contribution and it would help to offset what I think is the unreasoned criticism of the provisions of this Bill relating to drinking. It should be pointed out that the intake of 125 milligrammes per 100 milliliters of blood is a rather generous standard.
Mr. Yeats: I find myself in general agreement with Senator O'Quigley. I regret very much that the Minister has felt himself bound by the recommendations of the committee who suggested this breathaliser test, felt himself bound to follow the recommendation of 125 milligrammes as the limit. In Britain, the Medical Association in 1960 went into this matter and they suggested three single whiskeys or 3½ pints of beer as the maximum amount of drink compatible with unimpaired driving ability. However, in spite of the British Medical Association investigation, the British Government in their Bill arrived at a calculation of 80 milligrammes which, according to the BMA calculation, was considerably higher than the level they found to be compatible with completely unimpaired driving ability.
In a Dublin shop a few months ago I saw a portable, do-it-yourself breath meter which had this lucid description: "Fifty milligrammes, go easy; 80 milligrammes, go by bus; 100 milligrammes, go to bed." In Ireland, apparently, one can carry on beyond 100 milligrammes; one can absorb as much as 124 milligrammes, get into a car and drive it on a public highway. Our limit is undoubtedly too high. I suppose there has not been much choice in following this as an initial experiment— in view of the recommendations of the committee it would have been very difficult to fix a lower limit—but it should be kept very much in mind in years to come when it may become necessary to bring down the limit.
I think it is an established fact, much as I regret it, that alcoholism and drinking generally in Ireland is a much [947] more serious problem than in almost any other country. Therefore, if anything, our standard for driving should be regulated by a limit much lower even than in England where it is 80 milligrammes. In Norway and Sweden it is 50, in Switzerland it is 100. It is higher in Austria and Germany, great beer drinking countries, where the level is 150 milligrammes. The figure we have fixed is really too high and I should like to see it lower in the reasonably near future.
Mr. Rooney: I agree that this is a very generous limit and it will come as a shock to many people, even those in the habit of taking a generous measure of drink. It is possible in the initial stages of the administration of this Act that a number of people will be found to be outside that limit. However, I have no doubt that as time passes the fear of exceeding this limit will spread among people who normally take a few over the line. With the increasing amount of motor traffic, the Minister will surely find himself in the position of having to reduce this limit of 125 milligrammes per 100 milliliters of blood. Provided it does not do too much harm in the matter of loss of life or of people being maimed, I think it is fair enough to give it a trial at this limit first, but as time goes on it will become necessary to reduce it.
Mr. Garret FitzGerald: I should like to say also that I would like to see a move towards a reduction. All the evidence is that the limit proposed in the Bill is too generous. I hope the Minister will, in a reasonable time after the coming into operation of the Act, examine the accident rate to see if it has produced comparable results with those produced under the British measure. There is one point which worries me. I was told some time ago by a doctor who is a specialist in relation to blood that the tendency of individuals to retain alcohol in the blood varies widely. His information was to the effect that one person might deal with the alcohol content in his blood quickly while another might keep it in his blood, not for hours, but for days and weeks.
[948] If a man goes out on a better one night and is carefully driven home and the next day, when the hang-over has disappeared, he gets up and goes out and drives, on the evidence we have, if he is picked up there is a medical probability that he will be found to have alcohol in his blood beyond the statutory limit. I wonder if the Minister can tell me whether this is true and, if so, how can such a person establish his tolerance in this respect. If such a person fails to do so and unwittingly finds himself in the position several days after of having too much alcohol in his blood, will he be guilty of an offence or is there some way in which this can be allowed for? I should like to know the expert opinion on this point. The man from whom I got the information was an expert in the matter. It perturbs me and I would like to hear the Minister on it.
Mr. E. Ryan: I think the figure being used here is possibly a little high but this is a good thing because it means that a person who has only a few drinks is going to be careful that he does not offend against the Act. I do not think anybody is going to deliberately look at the chart and decide that they have exactly the right number of drinks and feel quite safe. All the evidence is that you can never be quite sure in certain circumstances, such as not having a meal; even if you have what drinks appear to be safe, you may still be just above the 125 milligrammes. I do not think that anybody will deliberately take advantage of the fact that the figure is a little on the high side and deliberately drink what seems to be the maximum and get away with it. With regard to Senator FitzGerald's point, I always understood that the only alcohol that would remain in the blood is poteen.
Dr. Sheehy Skeffington: I think we all recognise that the effect of alcohol varies substantially from person to person and that the amount of alcohol which would make one person dangerous as a driver does not have the same effect on another. This is linked with the removal of certain controls in the character and this is one reason why it is difficult to legislate fairly as between [949] those who can take a fair number of drinks and still drive reasonably carefully and those upon whom a few drinks have a disastrous effect in rendering them reckless, over-confident and, perhaps, aggressive. The Minister will recognise that it is impossible to devise a law which will discriminate between those who can take a certain amount of alcohol and remain careful as drivers and those who take remarkably less and become dangerous.
For this reason a better case can be made for a lower maximum which means that anybody who wants to have a few drinks will have to make other arrangements about driving. It is not a question of saying that if you take 80 or 90 milligrammes you necessarily become a dangerous driver. It means that we were making a law which will put you in jeopardy if you try to drive having taken this amount of drink. What has happened in Britain is that people taking a not very large amount of drink have been scared out of driving. They make arrangements to be driven home. This has had a very good result and the British safety statistics arising out of the new law have been very significant indeed.
I support those who say that we could with justice base the figure lower while recognising that in many cases a person with such an intake might not be incapacitated from driving. That would involve all persons taking this amount in the necessity of making other arrangements. This might necessitate inconvenience but it would not be great inconvenience. I should like to see the Minister reconsidering whether he should not adopt the standards which have been found so effective in the United Kingdom.
Mr. Blaney: If the Bill had proceeded with the expedition which the Department would have wished, and I do not say this as a reflection on anybody, it would have been in operation before the other Bill came to their Houses of Parliament. This Bill was on its way before I left the Department of Local Government which was over two years ago. The fact that we have not got it in operation is not the fault of anyone concerned, but because of [950] extraneous matters which cropped up in the meantime.
Mr. Garret FitzGerald: The Dáil was discussing this particular section a year and a half ago.
Mr. Blaney: It could have been a year earlier but for several interruptions of various kinds. As to the 125 milligrammes, I always agreed that this was a high level to set but the basis on which these proposals are being brought are those contained in the committee's report. It was that commission which recommended a level of 125 milligrammes and this is why that figure is before the House. Certainly if I had the personal decision on this and were to rely only on my personal decision I would say less than 125 milligrammes, but again it was not only my decision nor the decision of the present Minister for Local Governments but the decision of the Government of which we are both Members who agreed with the Commission's recommendation that the level of 125 milligrammes be recommended is the one we should put into operation. This is not to say that that level may not be found to be too high and that we may, in fact, have to amend it downwards. I think it is unlikely we will have to come back and amend it upwards unless the capacity of all concerned has gone up immeasurably in the meantime, which I doubt. I think we have got to keep very much in mind that it is an offence to have this measure of 125 milligrammes in the system but this is not to say that a person with this level is intoxicated or drunk. Neither does it mean that those who have got only 100 milligrammes in the blood are not drunk. We are not dealing with drunkenness really.
This is not the purpose and this is what must be sold or clearly shown to all concerned. If a person exceeds 125 milligrammes and is so found to have exceeded it it does not mean that he is drunk in the commonly accepted social sense. Neither does it mean that if he does not reach the 125 milligrammes he is free to drive how he likes and where he likes and so forth because while he is committing a special offence without question under this section if the content exceeds 125 milligrammes, [951] on the other hand, at 100 or at 80 or even under it, it may well be that a person can and will be convicted for drunken driving. This is not altered to the slightest degree nor the common approach to it. When the guards observe a man behaving in a certain erratic manner, driving in a dangerous way, in a way that obviously is not normal, accost this person and find that his speech gives certain indications, he is taken in and examined by certain tests and if he is found to be below 125 he can still, and I hope will be, convicted of drunken driving and given the penalties appropriate to it.
Therefore, let us not, while saying we feel 125 is too high, have any illusions that if one does not hit the 125 mark he is not drunk nor is it to be taken that if you have exceeded the 125 you are, in fact, drunk. This gets back to what Senator Sheehy Skeffington has said about the effects of alcohol as between individual and individual and even on the same individual under different circumstances. They can vary to a very great degree.
This, I think, we must get across to the public. Education should precede and indeed simultaneously go with and continue after the introduction of this particular measure, the education of the public through every medium that is open to us. It is the intention of the Department and the Minister for Local Government that this sort of education will be commenced, that it will be carried through and that it will be tried in every possible way to get across to the public what, in fact, we are trying to do, why we are trying to do it, that these levels are set, the effects they can have on some people as against others and that this is a special offence and that if the level is below 125 it does not mean one can drive any way he likes and if it is above 125 one is drunk. These and many other things will have to be brought very forcibly and clearly and consistently to the attention of the motoring public in order that there will be an understanding and thereby a greater acceptance of what is involved in this matter. All of this is aimed not at stopping people from drinking or [952] stopping people from driving but in order to try to save lives and save people from injury on the roads which is on the increase and growing all the time unfortunately.
The rate of elimination of alcohol from the system has been mentioned here. The only thing one can say about this is while allowing for variations, undoubtedly nobody can either explain or control that the rate of elimination apparently is fairly consistent and apparently will approximate about one fluid ounce per hour after one has ceased consuming and it is possible for somebody on a right batter the night before to wake up and still have a very high blood alcohol level the next morning. Of course, a good deal would depend on what the night before entailed, whether it finished at 11 p.m. or 5 a.m. and whether the man got up at 6 a.m. or got up at 11 a.m. Likewise, it would have maybe a good deal to do with the mixtures that were talked about here, some of which some Senators assert do not go too well together. The man, in fact, in such circumstances could have a high content that would condemn him under this particular section as being unfit to drive because of his alcohol content. He could be devoid of that content having eliminated it over the hours in between but he could be still far from fit to drive or fit for anything else. Of course, if the chap wakes up in the morning with a fair carry-over retained, whether it is the normal retention or abnormal because of some peculiarity in the particular person's make-up, and if he adds to that fuel in the morning more coal, obviously you will have to add the two together and if this test shows he has gone above it, then the end result is the one you get when you add the two even though he might have had very little to drink that morning.
Of course, we are talking of average circumstances and the average person, but in fact there is no such thing, I think, as the average person and we must keep this in mind. While we have to give general guidelines to deal with this mythical average person and his behaviour and capacity and so forth, we really must remember the weakness [953] of such in that there is no such being as the average person in a given set of circumstances. This law probably does not fit anybody exactly but it is intended to fit as nearly as we can all the people to the best of our ability and it is in this regard that we must approach it and try to get it across because I feel that the acceptance of the whole idea underlying this measure dealing with this matter of alcohol, its consumption and its relation to driving or not driving in certain circumstances, education is vital as is the law that we are proposing to enact here. I feel that the Members of this House and of the Dáil and everybody in public life have not only an opportunity but a very particular responsibility to get this across to try to give that little additional help to reduce dangers on our roads which seem to be growing year by year if not week by week.
The other thing people should get into their heads clearly and concisely is that the fellow who has had a couple of drinks, is not drunk, could not be regarded as being drunk, would not exceed the level as stated here but probably has had a boost to his confidence as a result of a few drinks and, indeed, would even try to demonstrate that he is a better driver, that he is a safer driver in that condition, that he is a better driver than most others on the road at that particular time. I would say to that person that he would be a better driver still if he had no drink. That is something people should get fully into their minds, that without drink their driving is better than it can be no matter how little drink they may have taken.
I feel that if our younger drivers particularly who feel their cars are going better because they are stoked up as well as their cars could only get it into their heads that their driving is not improved by drink but that their reactions are dulled to some degree anyway, some of them might cease to take it because they would like their driving to be good. In fact, taking a few jars mars that good driving even though they may still be better drivers than nine or ten others on the roads but they could be still better if they did not drink at all. I think that is [954] what Senator O'Quigley has been advocating that publicity will be given through the Department and all the other media when this matter is under way.
Mr. Murphy: There were two points I wanted to make on the section. The Minister dealt very fully with the first but it might to be no harm to repeat it. It is that the level we are seeking here means that a person with higher than this level of 125 milligrammes of alcohol per 100 millitres of blood is automatically guilty of an offence, is regarded as guilty of an offence, but it does not mean that a person with a lower level is not also guilty of an offence. It is a bit dangerous to be talking about the amount of alcohol the average person can take and still be below the 125 milligrammes. As the Minister says, there is no average person. We all know from our own experience that not alone does it very between individuals but it varies between one day and the next with the same individual. Sometimes one drink can have a greater effect than two or three drinks on a different occasion. That is one point.
The second is really what we are dealing with, the effect on a person's judgment of the consumption of alcohol. His judgment is dulled; he is upset, and we are in this section creating an additional offence and saying any person over this level is automatically guilty of an offence. This is another offence under the road traffic code and there are many already there.
I am particularly concerned about another offence which equally dulls or upsets a person's judgment and this is rampant on our roads at the present time. I personally feel that more accidents are caused by bad manners and rudeness on the part of some drivers and the effect that rudeness has on other drivers, who are upset because of it and their judgment dulled. We have all had this experience and it is really an offence that is increasing on our roads at present.
I hope the law we will enact here will be enforced but equally I hope the law already there will be enforced to a grater extent than at present. We [955] had, what I think, were called the courtesy cops. They went around with a lot of publicity some years ago but they are very few and far apart now. There is grave need for them. There is grave need for gardaí, who are not apparent gardaí, going around and spotting the careless drivers. The people I am talking about are more careless than anything else, but the upset caused to the ordinary individual going about his business is enormous. I have seen this again and again. We are upset by the rudeness of somebody who cuts across us and we find that a mile further on, our judgment is still upset and we are very liable to have an accident. I want to say on this section that having decided on this law, it should be enforced, but it should also be enforced in regard to other matters of road safety far more rigorously than it is at the moment.
Mr. Rooney: I want to observe from the reading of this section that the situation is that if a man has 125 milligrammes of alcohol in his blood, if he is not drunk, he is liable to the same penalty as a person who is drunk with 125 milligrammes or less. In other words, you are going to convict one man for drunken driving with less than 125 milligrammes and put the same penalty on a man who is drunk but has over 125 milligrammes of alcohol in his blood.
Mr. Yeats: One of the problems of course of putting the level as high as it is in this Bill is, as the Minister has said, that there will be people who are drunk, although the level in their case may be well below this figure. Indeed, I think young people who are not used to taking alcohol will in very many cases reach the stage of being incapable of driving a car at levels well below the 125 milligrammes.
While I am considerably less optimistic than the Minister on this question of drunken driving at this level, as we all know, it has been extremely difficult over the past few years to get convictions in the District Court for drunken driving. We all read in the papers of a garda stopping a man driving a car. The man gets out of the car and staggers along. One thinks this [956] is an open and shut case but then the evidence is given, and it is said that he had only two small whiskies and in the end the district justice gives him the benefit of the doubt.
I am afraid that when we have this breathaliser test and further evidence in the District Court that the breathaliser was used and that the man's level was below the 125 milligrammes, except where it is an open and shut case, and there is no possibility of saying that he actually was drunk, the District Justice will acquit in such a case. I hope I am wrong but I strongly suspect that the normal practice will be in future that where the breathaliser was used and the person did not exceed the 125 milligrammes, the garda will not in fact prosecute for drunken driving simply because they will feel the chance of getting a prosecution is very small. I may be wrong but I do not think I am.
Mr. O'Quigley: There will be that problem that there will be a new test, so to speak, for drunken driving and one is inclined to think that if people pass that test, although they might be quite drunk physically, so to speak, they will be acquitted of drunken driving. However, I think Senator Yeats' fears can be allayed by what has been going on up to now. Regularly district justices have reports from Garda doctors about sobriety in a man from the medical point of view. The doctor may very often be there a short time after the person arrives. Nevertheless, I have seen cases where a doctor pronounced a man fit to drive and not drunk, and possibly that he was not drunk a half hour or threequarters of an hour earlier, but the district justice, and the Circuit Court judge on appeal, have taken the evidence of the garda that the man getting out of the car staggered, was unable to walk, probably had bleary eyes and he was convicted on that. They will continue to do that.
Mr. Yeats: They are very often acquitted too.
Mr. O'Quigley: In some cases this may well be, but usually the evidence of the garda is accepted by the district [957] justice and a conviction is got. The ordinary law will still apply because under section 29 we are merely adding in this new test of 125 milligrammes and the old law will still apply. I should hope that what Senator Yeats says will not happen. I do not think it will.
An Leas-Chathaoirleach: The Chair suggests that amendments Nos. 13 and 15 be discussed together.
Mr. O'Quigley: I move amendment No. 13:
To delete subsection (3) and substitute the following new subsection:—
"() Where an arrested person (other than a person who has provided a specimen of his urine in accordance with the prescribed procedure) following a requisition under this section, refuses or fails to permit a designated registered medical practitioner to take from the arrested person a specimen of his blood evidence of these facts may be given in any proceedings relating to the occasion in question under section 49 (4) of the Principal Act or section 28 (3) (a) of this Act against the arrested person."
In section 30 we are providing the procedure that will be adopted when an unhappy motorist finds himself in a Garda station following a breathaliser test and will thereupon be called on to provide a specimen of his blood or, alternatively, a specimen of his urine. This is a very drastic section we are introducing and the Minister indicated earlier that indeed it may well be that there are certain provisions of this Bill that will have to be amended as experience warrants and shows to be necessary. I find myself in sympathy with what is contained in the section but I also feel that it is probably going a bit too far at this stage.
I have very little doubt that there will be many people who will not want to undergo a blood test purely because they are afraid of the consequences of [958] the test and know that it will show 125 milligrammes and upwards. There will also be other people to whom the idea of having this puncture for a blood test—and I do not know where this will be done, whether on the fingers or on some of the veins here or on this side of the elbow; I do not know the anatomical terms—is repugnant. There are a number of people who faint at the sight of blood, but who submit to the test, in the first place. If the Garda doctor has plunged in what was not a very fine syringe needle that person may say: "I will not put up with this; you have had one go and I will not put up with it". If such a person refuses, and he could have good reason, he will be found guilty and be liable to exactly the same punishment as if he were in fact drunk.
I grant you that it is very difficult to know what to do in the situation. What we want to get at, and what must be done, is to prevent people driving while drunk. I do not know that I am all that happy with my amendment either. It takes a good deal of the teeth out of the section. I am not happy with the section either. There will be quite a number of people who, for good physical reasons, may not be able to submit themselves to the blood test or submit themselves to the physical ordeal of undergoing this.
Mr. O'Kennedy: Does your amendment relate to an offence that does not exist? You are referring to proceedings under section 28 (3) of this Act and section 49 (4) of the Principal Act. There do not appear to be any proceedings. They merely refer to powers of arrest.
Mr. O'Quigley: Section 49 refers to an offence of drunken driving.
Mr. E. Ryan: Section 49 (4) relates to the circumstances in which a person may be arrested and 28 (3) refers to the circumstances on which a person may be arrested.
Mr. O'Quigley: Section 49 has nothing to do with section 28 (3) (a).
Mr. Yeats: Section 28 (3) (b)?
[959]Mr. O'Quigley: Section 28 (3) (b) was omitted.
Mr. O'Kennedy: Section 28 (3) (a) is not an offence either. There are no proceedings under section 28 (3) (a). It merely relates to the powers of arrest.
Mr. O'Quigley: It is the same offence for being in charge. However, it is not entirely relevant. I am not entirely happy with the amendment. There is a problem and it is difficult to see how one can get over it. There will be people, and there may be quite a large number of people, who physically will not undergo, and I know people of that kind who physically would not undergo the ordeal of a blood test, and if they do not, they will be in the unfortunate position of being guilty or liable to the same punishment as if they were found guilty of drunken driving.
What I would like to see in this Bill is a changing of the law as a gradual evolution, and if in 18 months or two years, a great number of people were found unable to undergo the blood or urine test, we could say: "Very well; this provision is not operating satisfactorily and we will make it compulsory in the way it is done in subsection (3) of the Bill.
There is a problem. I do not know that even the amendment I have drafted would solve it. It is something on which I would like to hear other Members of the House as well as the Minister.
Mr. Yeats: Apart from the drafting Senators O'Quigley and O'Kennedy have referred to, this amendment is not one that we really should accept. It is quite obvious that if something like this were written into the Bill, anyone brought into the Garda barracks after a breathaliser test, who knew he had consumed a considerable amount of drink, would be foolish to take the test. His legal adviser would advise him not to take the test. He will be no worse off if he does not take it. He would be worse of it he were to take it. It would be an encouragement to everyone to refuse to take the test.
I can quite see the Senator's point about taking a blood test. I doubt if [960] I would myself. The only way we can look at it is this. We know that the breathaliser test is not to be regarded as accurate and is only to ensure the weeding out of people who are not willing to take the scientific test but at least the breathaliser test will show that the person has consumed some alcohol and one can conceivably make the point that anyone who goes to drive a car in a public place and who takes any alcohol has only himself to blame if he ends up by having to take the blood test, even though he may not be drunk in any way. The mere fact of having taken any drink before driving could be considered sufficient warning to him that he might be put into a position like this. I would not have too much sympathy with people in this position. If they have taken a breathaliser test, guilty or not guilty at least it has shown that they have consumed some alcohol, and to that extent have only themselves to blame for being in this position.
Mr. McDonald: I should like to support Senator O'Quigley's amendment. The point that worries me is who is going to take all these tests. Are the gardaí to undergo a new scheme of training or will it be entrusted to anyone at all? At a time when crime would appear to be on the increase and we have the appearance in this country for the first time in years of armed robbery, we are to have the time of the guards taken up by taking no fewer than three tests on individuals. If this is going to be followed to its logical conclusion, the police will need to be full-time on this job. This is completely unnecessary and I feel that it is unfair to subject people to this kind of treatment.
Mr. Ryan: I am against this amendment because I feel that it would be an invitation to everybody who has been subject to a test to avoid tests by merely allowing this to be used in evidence in proceedings taken under the former section. In any event, it seems quite clear that the particular amendment does not make sense because proceedings cannot be taken under section 29 subsection (3). Proceedings can only be taken under subsections [961] (1) and (2), so that whatever effect Senator O'Quigley intended the amendment to have it does not have that effect.
Amendment, by leave, withdrawn.
Question proposed: "That section 30 stand part of the Bill".
Mr. O'Quigley: There are two situations which will arise in the case of a person who refuses to take these tests. Under subsection (3) if he refuses to provide a specimen of blood or urine as the case may be he shall be guilty of an offence and liable on summary conviction to imprisonment for up to 12 months and to a fine. That is one situation, but he is just as effectively dealt with in that kind of case as if, in fact, he had undergone a blood test and had been found guilty of exceeding the specified limit of 125. There will also be cases where the court will act on its own and on the evidence of the gardaí and the observed facts by the Garda medical officer and from all the evidence the court will come to the conclusion, I should say in a large number of cases, that the person who refused was in fact, drunk and unfit to drive under the old section 49. What, I am wondering, then is, will the person be liable to two penalties? Can he be convicted for drunken driving, assuming that the facts warrant that conviction, and will he also be convicted under subsection (3)? Will there be two offences and can he be found guilty of both, although they seem to arise out of the same single act of drunken driving?
Mr. Blaney: No. I suppose that on the strict reading of the measure, both this and the other provision the Senator has been talking about, it is possible in theory to have both penalties sought and applied, but in practice this will not be so. In this sort of case I imagine that the State would be unlikely, except in some unusual circumstances, to press for the application of the double penalty as it were. The other thing on the section itself that I think needs to be understood is why we are seeking to have this refusal to submit to these tests an offence the penalty for which [962] is equal to the penalties for having submitted and been found over the odds, that is over 125 milligrammes in the blood. I think that this follows absolutely and completely. Without question, it must follow that once we have accepted that a blood alcohol level exceeding 125 milligrammes in itself establishes an offence, it follows as night the day that we cannot enable people to evade the tests, or to be encouraged to refuse to undergo them because it would be a lesser penalty if they did so.
The whole emphasis and encouragement that would be given by the amendment particularly to all those who felt themselves guilty of an offence, would be that they would opt for the refusal of a lesser penalty, and the only people who would submit would be those who were quite sure that they were in the clear and that the test would show that they were so. Once we accept first that it is an offence to have this content above 125 milligrammes we must follow it up by this further offence of refusing to submit to any tests and that for these two offences the penalties should be equal. Otherwise evasion would be practised and naturally encouraged. It is those who knew themselves to be guilty of having a higher alcohol content who would presumably opt for refusal to undergo the test and only those who were in the clear who would submit to it. This is the way we have to look at it. We have accepted a level, and the fact of having over that level is an offence, and we have no option, therefore but to follow it on by making a refusal an offence carrying the same sort of penalty.
Mr. O'Quigley: Also on the section, under the new Schedule, the offence under subsection (3) of this section will now mean that the person will be automatically disqualified from driving for 12 months in the same way as he is automatically disqualified from driving for 12 months if found guilty of drunken driving. On this question of disqualification for a period of a year, it is a thing that very often leads to tremendous hardship. I entirely agree that the drunken driver must be put off the road, but there can be cases [963] where the imposition of the automatic disqualification for one year creates terrible hardship and is unjust in the eyes of everybody. Let us take the case of a man—and one has seen this kind of case in the courts—who has had a number of drinks, and he gets into his car, starts off and then, in fact, decides that he will not drive because he is drunk. I have seen that type of case. The gardaí noticed the man, waited for him to get in, saw him stop the car and then went over and arrested him.
He was then brought in, showed the usual symptoms, and the Garda doctor said he was unfit to drive. I am speaking of a case I know about. The judge who heard his appeal from conviction in the district court said he was terribly sorry. Here was a decent man, a commercial traveller in a small way. If the judge could have done anything to prevent the re-affirmation of the district court conviction he would have done it because the man was not of reckless habits, a matter which was well established in evidence. There was nothing the judge could do except affirm the disqualification for 12 months. That man lost his job as a commercial traveller.
It is the kind of thing that can happen and some consideration should be given to it. I do not know if we can do it here. We are refusing to give a blood test or a urine test and we are putting this offence into the same category as drunken driving. We are doing it for a very good reason but I think, and I do not know the view of other Senators, that if we want to get at drunken driving and the drunken driver, if a man in other respects has been a competent careful driver with a clean record, instead of disqualifying him for a whole year—which as a commercial traveller would put him out of his job—we should disqualify him from driving at weekends during a period of, say, five years. In that way the man would continue to be able to earn his livelihood though suffering a continuing punishment.
There is no great merit in disqualifying such a person for a year. We must appreciate that there are as bad road [964] offences as drunken driving, because of their effects. There is the type of driver Senator Murphy referred to, the person coming back from the races who will cut out, when the road is chock-a-block with traffic, and then try to cut in on a busyroad. The worst mannered drivers on our roads are those one sees driving home from the races. They inconvenience everybody because everybody tries to prevent this fellow colliding with an oncoming vehicle. That can be as serious in its consequences as if somebody got drunk and took charge of a car. A great many serious motoring accidents occur when motorists are overtaking.
I discussed this with a solicitor— the question of how it is we failed to meet them in court. The reason is, of course, that there is no defence in these cases and the insurance companies settle them. However, this is as bad an offence, just as detrimental to the community and the motoring public, as drunken driving, yet we do not provide any automatic disqualification for the type of dangerous driving I have been referring to.
For that reason, though drunken driving is something which must be stamped out, so also is dangerous driving but I think there are cases where to disqualify automatically might put a person out of his livelihood, discretion should be allowed to the courts because I suggest that automatic disqualification is a punishment which does not fit the crime and which might not be appropriate to the person committing it. The number of cases involved would be small and if persons were disqualified from driving on Saturdays or Sundays or on their halfday, if they have one, it would bring home to them and to the public generally the enormity of drunken driving equally as effectively as the present system.
Even with automatic disqualification for one year, those convicted under the 1961 Act can go back to the courts after six months and apply for re-instatement and the court, having heard evidence of previous convictions and having regard to how the person has behaved in the meantime and to his [965] family circumstances, may decide to give him back his licence. I am not satisfied that the present system, which we are now extending by making it an offence under subsection (3) of this section, liable to automatic disqualification, is something we should be happy about. I should like to see more latitude given to the district court than at present.
Mr. Rooney: I have never been in favour of lengthy disqualifications except in cases of very serious offences. We have seen cases where licences were withdrawn for life or for very long periods and usually when we have examined the cases concerned we have agreed the penalty was fully justified. On the other hand, as Senator O'Quigley has said, the period of 12 months of automatic disqualification is too long because of the automatic nature of the penalty. If it were only a matter of a judge, having carefully considered all the circumstances, that a man should have his licence withdrawn for 12 months I should not find fault with it, but I am against automatic disqualification of a person from driving for 12 months without having his case threshed out and considered in court and a decision made by the justice.
There are many cases in which disqualification for three months or six months would have the desired effect, would be a serious penalty for the person at the loss of his licence for such period. Therefore, the Minister should consider the possibility of discretion on the part of the courts or of shorter disqualification. He should consider whether the period of 12 months is not too long.
Mr. Sheldon: I support Senator O'Quigley in so far as I think he is right that though it is proper that stern measures should be taken to prevent drunken driving, there is the danger that in concentrating on this aspect other driving offences may be forgotten. Indeed, a great many of them seem to be forgotten as it is. I have seen some appalling driving in Dublin at 10 o'clock in the morning. The drivers are not drunk. What is wrong with [966] them is sheer bad manners. It has reached the point when one is almost ashamed to drive at the specified speed limits because one feels slightly odd. If one is driving at 30 miles an hour other motorists will blow one to get out of their way.
Mr. Murphy: They do not take any notice of speed limits.
Mr. Sheldon: As I have been saying, by concentrating on this we are in effect saying: "It is all right as long as you are not drunk. Never mind the other things". I do not suppose for a moment that this is the official attitude, but taken in conjunction with the fact that at the moment the most disgraceful driving goes on in this city and outside it, one cannot help but feel that through this concentration on drunken driving, the image will be created that as long as a motorist is not drunk he can do what he likes. I know it is not easy for the Minister to stop all this but surely the resources of the State could be extended to make some effort to make the existing law work. A concentrated effort could be made for a week in one or two places to administer the law at present in operation. The authorities need not announce where they are going. Radio cars could arrange to switch from one place to another, to switch ideas without any pre-arrangement. Otherwise, if something along these lines is not done, quite good humoured people will get infuriated, will lose their tempers and without exceeding the speed limits may be provoked to do something serious. Anyone who drives knows the reaction one gets. One sees a number of clots getting away with it and you find your blood pressure goes up. While you are concentrating on this foolishness, some innocent person walks out on the road in front of you and they have had it.
Mr. Blaney: I agree to a great degree with what Senator Sheldon has said and I must say that some of the behaviour on our roads is scandalous. That behaviour does not always indicate that drivers are over the 125 level. May I also say that I do not [967] agree that it is not possible for a person to be over that level at 10 o'clock in the morning as has been stated? Some Senators told us of some friends of theirs or others who would have consumed so much alcohol the night before that it would be retained in their blood. However, I do agree that the behaviour on our roads is not improving. In fact, the indications are that there is a disimprovement as far as safety on our roads is concerned and a great deal more requires to be done with regard to that.
I do not subscribe to the idea of enacting further legislation. It may well be said that a more complete legislative framework is a prerequisite to the proper application of the law as a whole. It is my belief and my hope that this will prove to be so when we enact this further traffic legislation and that there would be a greater observance of the law and a greater enforcement of it. I still subscribe to the belief that we are a gambling people in the sense that we do not back losers if we can avoid it. Perhaps "gambling" is the wrong word to use in this context but I feel that if all our people got the idea that by doing the wrong thing on the road they were likely to be caught and caught quickly, far fewer of them would commit any of these offences at all. If we feel that we are going to get away with it, which seems to be the general idea, if we see other people do the wrong thing and get away with it, we are inclined to follow their example. People see others get away with offences and this encourages them to take a chance and do the same thing themselves. Unfortunately, some person comes along who is not taking a chance, gets in the way and they are gone. It is small help to the family of a person who may be killed or crippled that somebody gave bad example by doing the wrong thing five minutes earlier and that somebody else followed that example.
However, when we put the microscope on a Bill at Committee Stage we are inclined to forget the total content of the Bill and some of us are inclined to be over-sympathetic to the law breakers. I feel that we are being over-sympathetic [968] here when we talk about the obligatory disqualification for a year being too harsh and when we say that disqualification for a year is too long for somebody who has broken the law and is shown to have broken it by his refusal to undergo tests. If such a person is over the level of 125 milligrammes, which is a very generous level by any standards, or if such a person refuses to be tested there is no reason why he should not be subject to the same penalties of fine and imprisonment and there is no reason either why he should not be treated for the offence by disqualification for 12 months.
Reference has been made to the hardship cases, to the persons who probably lose their employment by virtue of the fact that driving is an essential part of it. It is felt that such persons are more harshly treated than others who commit the same offence, but I would hope that the person on whom the loss of a driving licence would have no great impact would get a little while in jail which would discommode him, or that he would get the full fine and disqualification. This is the way we should be looking at it instead of isolating the case of disqualification and saying that a person has been harshly treated. This is isolating the disqualification as the only penalty. It is an obligatory penalty but the fine of £100 and/or six months imprisonment may also be applied. I would expect that the imprisonment and a fine would be imposed on those on whom the disqualification would be no real hardship.
None of these people should be treated in a manner that would encourage them to offend again because the penalties were not severe enough. We cannot tolerate the present conduct on our roads, we cannot tolerate people who behave in this way and these penalties must be used as deterrents of a severe and drastic nature if we are to make any impact on the vigilance of the people themselves. If these people are going to be caught and if the penalties are going to be so severe as to discourage future offences, then this is a realistic approach to a very serious matter; it will deal properly with [969] those who cannot conduct themselves and it will protect law abiding people who are using the roads properly but who can end up in hospital or can end up dead although they never put a foot wrong on the roads in their lives.
I feel that we are far too much inclined to talk about the lame dog sort of fellow who gets himself into trouble and who not only gets himself into trouble but probably kills somebody in the course of getting himself into trouble. Then we get all this talk about consideration for him. I do not think he deserves a great deal of consideration. It is all very well to talk in that way and probably in certain circumstances I might do the same but the realistic approach is that we cannot have this sort of behaviour and we must prevent it in any way we can—by more severe penalties; by extending and expanding our laws; by greater enforcement of our laws— whatever device possible. I think the obligation is on us in this and many other respects to try to protect the people who are law-abiding and using the roads properly from those who are breaking the law and misusing the roads. We just cannot have it. It is as simple as that. I think this law if it were proposed in 1961 in this form would have had a fairly stiff run against the public opinion then obtaining but I think our public have become very much more educated since then and appreciate in a general way the need for preventing the misuse and abuse of our roads.
You will still have a few who will go against these laws but I think the majority of people are behind us and the only thing for which they will point a finger at us is that we are not doing enough about making them stick, not bringing them through quickly enough, to stop the carry-on that is going on and the slaughter and the death on the roads and the maiming and the injury and the loss incurred by all sorts of people, not just this isolated group here. They are not the only offenders but they are major offenders in a serious way and they must be treated in that way.
[970] I think we can become a little bit too over-sympathetic when we look in Committee Stage in isolation on particular aspects of what we propose to do and not at the overall general context. The overall general context must be given its fair place and the overall impact of what we are trying to do should be kept in its proper perspective and remember that we are expected to do this. After all, we are here to reflect and give effect to the views of the public whom we serve and I think that that is what we are doing now, I feel that what we are doing is justified and must be put into operation and the sooner the better.
An Cathaoirleach: Before section 32 it is proposed to insert a new section. Senator O'Quigley on amendment No. 14.
Mr. O'Quigley: I move amendment No. 14:
Before section 32 to insert a new section as follows:—
"The Principal Act is hereby amended by the substitution of the following section for section 50:
(1) In this section 'unfit to drive' means under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of a mechanically propelled vehicle.
(2) A person who, when in charge of a mechanically propelled vehicle which is in a public place with intent to drive or attempt to drive the vehicle, but not driving or attempting to drive the vehicle, is unfit to drive the vehicle or in whose body there is present a quantity of alcohol such that, within three hours after having been so in charge of the vehicle, the concentration of alcohol in his blood will exceed a concentration of 125 milligrammes of alcohol per 100 millilitres of blood.
(3) A person who is guilty of an offence under this section shall be [971] liable on summary conviction, in the case of a first offence, to a fine not exceeding twenty pounds or, at the discretion of the court, to imprisonment for any terms not exceeding one month or to both such fine and such imprisonment and, in the case of a second or any subsequent offence, to a fine not exceeding fifty pounds or, at the discretion of the court, to imprisonment for any term not exceeding three months or to both such fine and such imprisonment.
(4) In a prosecution for an offence under this section, it shall be presumed that the defendant intended to drive or attempt to drive the vehicle until he shows the contrary.
(5) A person liable to be charged with an offence under this section shall not, by reference to the same occurrence, be liable to be charged under section 12 of the Licensing Act, 1872, with the offence of being drunk while in charge, on a highway or other public place, of a carriage.
(6) Where a member of the Garda Síochána is of opinion that a person is committing or has committed an offence under this section, he may arrest the person without warrant.
(7) Where a person convicted of an offence under this section has been previously convicted of an offence under section 49 of this Act or under section 30 of the repealed Act or under section 30 (3) or 33 (3) of the Road Traffic Act, 1968 he shall be treated for the purposes of this section as having been previously convicted of an offence under this section."
Amendment No. 14, I hope, sets out what I intended to do and that is to take the amendments which are proposed under section 32 of the Bill and to incorporate them into section 50 of the 1961 Act so that the 1961 Act and the amendment will go together as a compact section. This is another of those sections that is likely to be in every day use from now on. One must be realistic. What I want [972] to avoid is having unnecessary complications in relation to what should be quite a simple matter. What we want to deal with is the case of persons being in charge of a mechanically propelled vehicle while under the influence of intoxicating liquor or a drug or while having the 125 milligrammes of alcohol in their blood. It seems to me right and proper that if the offence is committed that then we should say that it is an offence under section 32 of the Road Traffic Act, 1968, rather than that somebody has committed an offence under section 50 of the Road Traffic Act, 1961 and section 32 of the Road Traffic Act, 1968. There was a plea made on Second Stage by a number of Senators on both sides of the House to have this kind of thing done. I think the Minister should have little difficulty in recommending it to the House.
Mr. Sheldon: In this amendment Senator O'Quigley is using the very phrase that he is objecting to in section 28: "where a member of the Garda Síochána is of opinion...." I thought the Senator wanted the Garda to be "reasonably of the opinion".
Mr. O'Quigley: What I am doing here is taking section 32 and welding it into the old section as it stands. I am saying to the Minister and to the House: "You are not going to amend section 50 any further". I do not think it would be within the Rules of Order to do so. I very much doubt if I would be entitled to. In any event, I want to avoid trouble. The odd thing is that on this question of drink we have all become very friendly, the way people become very friendly over a drink. We have had a degree of unanimity on this subject that has not marked debates in this House for quite some time. However, it is to avoid controversy that I just decided to take section 32, weld it into section 50, and reproduce it as a whole section.
Mr. Yeats: Senator O'Quigley is being very unfortunate in his amendments. In the first one he put in the relevant parts at the wrong place and now in this amendment he has omitted the words "shall be guilty of an [973] offence" which comes at the end of subsection (2) so I am afraid, as it stands, his amendment is just meaningless.
Mr. O'Quigley: If that has happened, and I have not proof-read it, the fault does not lie with me. Yes, I quite see what Senator Yeats means.
An Cathaoirleach: The question is that the amendment be agreed to.
Mr. O'Quigley: If Senator Yeats is right, we will have to withdraw the amendment.
Mr. Blaney: I agree with Senator Yeats's view.
Mr. O'Quigley: That is not my drafting.
Amendment, by leave, withdrawn.
Amendment No. 15 not moved.
Section 33 agreed to.
Section 34 and 35, inclusive, agreed to.
Question proposed: "That section 36 stand part of the Bill".
Mr. O'Quigley: I wonder if the Minister could, perhaps, elaborate somewhat on this particular section. It is designed, in fact, to deal with some of the objections one had to section 30. I wonder what will be regarded, or would the Minister prefer not to say, as "a special and substantial reason" for refusal to give a test.
Mr. Blaney: One of the features about this matter is that the Commission itself, probably deliberately, refrained from making any comment or suggestion on what should be so considered and in that regard did have the belief that this should be left more to the courts discretion, as presented at the particular time, which the courts would regard as, I think the words mentioned were, "special" and "substantial". Those two words cannot be ignored in regard to the [974] possible type of circumstances where this could be pleaded successfully.
It is worth noting that the Commission rightly avoided this and deliberately did so on the basis that it was of a nature that should be considered by the courts but with special regard to special and substantial reasons. I do not think we can say further on that "special and substantial reason" can only be in the context of each individual case where such might be pleaded.
Question put and agreed to.
An Cathaoirleach: Amendment Nos. 16 and 17 can be discussed together and separate decisions might be had if necessary.
Mr. O'Quigley: I move amendment No. 16:
Before subsection (4), page 24, to insert a new subsection as follows:—
"() The Bureau and every member of it shall be independent in the exercise of their functions."
The operation of the provisions of this Bill relating to drunken driving will give rise to a considerable amount of discussion and, perhaps, criticism in its early days of operation. When the Bureau which will carry out those functions is established and begins to function it is highly important and desirable that it should get off to a good start and that the public, especially the motoring public, should have confidence in it.
I am quite certain that the highly specialised and technical people who will be appointed to it will carry out the functions which will be assigned to them in a thoroughly professional and competent way, but so that there can be no question that the bureau is got at or that the bureau forms part of the paraphernalia of the Garda or part of the paraphernalia of the Department of Justice or the Minister for Local Government, I should like to see it put beyond any doubt that it is a body which is quite independent in every way. It is for that reason I [975] am suggesting that section 37 should be amended so that the Bureau will be independent in the exercise of its functions and when certificates are handed in in evidence in the district courts, they will always be seen to be independent.
Again, in regard to amendment No. 17, I think the members of the Bureau should only be removed from office on the grounds of physical unfitness, mental disability or misconduct. It very often happens in cases of this kind that a statement of the reasons for the removal of the person should be laid before the Houses of the Oireachtas. Again, this would be in line with the thinking that the Bureau should be entirely independent. If a person is removed on the grounds of physical unfitness, mental disability or misconduct that would have to be stated. Having put down this amendment and having gone through the Report of the Commission on Drunken Driving, I found, in fact, that they had made a somewhat similar recommendation. In their Report at page 54, it is stated:
The analysis of all blood and urine samples should be carried out in the same institution under the control of a medical director. We consider that the institution should be an independent authority not under State control.
As this will be a body whose evidence will be accepted in court, it should be quite clear from the very beginning that it is a body which is entirely independent of the Garda, the Department of Local Government and members of the public. Therefore, I think it would enhance the prestige of the Bureau if it was agreed from the outset that they would be independent and that they would be removable only on an order of the Government.
Mr. Blaney: I am still not terribly clear what the Senator has in mind but from what he said and what one could probably suspect it appears as if he would not be satisfied that the Bureau as such would be operated in a fair manner.
[976]Mr. O'Quigley: I want to be clear that that is the absolute reason from the start.
Mr. Blaney: Is it appearance rather than performance the Senator is worried about?
Mr. O'Quigley: It is very important.
Mr. Blaney: I am merely saying that for clarification. It is primarily with the appearance of its freedom and its fairness that the Senator is concerned rather than its performance?
Mr. O'Quigley: Yes.
Mr. Blaney: The thing about this is that it will be set up as a corporate body. It will become as it were another semi-State body and it will be performing a function under the law as it were in respect of the overall performance of this law. The Minister answerable to the Oireachtas is the Minister for Local Government, whose function it is to set up this body to do these certain specified matters which are outlined in greater detail in the following section, section 38.
This is being done in a manner which is pretty well established. Take for instance the Institute for Industrial Research and Standards. This type of body is doing a job which could possibly be said to be one which if abused could lead to a great deal of dissatisfaction on the part of persons in the commercial field. There is nobody suggesting this is so and I do not think there is any reason why they should. I am merely mentioning that Institute because it is in a sense parallel to what will be done in this particular section, which proposes the setting up of this Bureau. It will not only be of a similar nature to that but in a way related. It will be doing a functional, probably a technical and a scientific job, in carrying out tasks relating to the law administered by the Minister for Local Government in like manner to the Industrial Research and Standards body which carries out functions for the Minister for Industry and Commerce, or any other Minister or Department as well. It will in its day-to-day operations and in the matters that will be assigned to it—and there will [977] be, as you will see from later sections, specific functions assigned to it— have complete freedom. In the last analysis, the Minister for Local Government will be responsible to the Houses of the Oireachtas for the functioning, not the malfunctioning, particularly of an institute such as this. Therefore, it seems to me that an eminently suitable way to have this particular job done, or special jobs done is by setting up this special body, this semi-State board, this corporate body, this Bureau that is named here today, to adopt and carry out the functions assigned in section 28. There is no doubt that its freedom of operation in this particular way will be such as to make it as free as any body can be free and that it will in its day-to-day operations be completely free as are similar other bodies performing other and varied functions and under various other Ministers.
Mr. O'Quigley: It is very much in these matters a question of emphasis and a lot depends on what view one takes of the particular problem. This Bureau is not like the Bureau for Industrial Research and standards or other semi-State bodies that are established. This is a bureau that will be established and very few members of the motoring public will know very much about it, but the public will find that a certifi cate issued by this particular body as to the alcohol content of specimens of blood or urine in particular cases will be conclusive evidence in the courts. When it is a case of a State prosecution and where the livelihood and liberty of the subject is involved, in the ordinary course the person is convicted only upon evidence which is sworn and that evidence is tested under cross-examination by the judge, and if it is a case by jury, assessed by jury but it is always, remember, sworn testimony and a medical doctor at the present time goes into a witness box and gives the result of his examination of a person charged with drunken driving. The medical doctor is sworn and gives his evidence upon oath.
I read section 44 of the Bill dealing with the evidential effects of certificate [978] under section 43. It is provided there that:
Where the certificate states it has been determined that a specimen of blood contained a specified concentration of alcohol....
Under section 49 or 50 of the Principal Act, but subject to section 45 (4) of this Act, the conclusive evidence....
and the facts are stated. That is a very good reason for putting beyond any doubt the absolute independence of the Bureau whose certificate will be accepted as conclusive evidence.
Mr. Blaney: It is the very thing Senator O'Quigley fears in relation to the nature of the setting up of this Bureau that might indeed get around as a result of what is being said here. I would like to point out the following in section 38. It is proper and necessary to say it is in subsection (2) (a) (b) (c) and (d) that the functions of the Bureau have been set out. That is, section 38, in subsections (1) and (2) and particularly (2) (a), (2) (b), (2) (c) and (2) (d) put upon that Bureau obligations under the law which we propose to enact. The main obligations placed upon them are outlined in that particular subsection (2) and these obligations fall on that Bureau. The Bureau therefore will carry the responsibility for the performance of those roles as specified and the Bureau will undoubtedly be under or have as its head or chief officer a director. This has already been said by the Minister for Local Government, that there will be a well-known eminent and scientifically qualified man whose reputation, character and repute will be beyond reproach in the scientific world and he and those others, whoever they may be that serve for him on this Bureau, on matter by whom placed there will not be able to get out of the responsibility placed on them by this Bill if it becomes law under section 38 subsection (2) (a), (b) (c) and (d). Even if they were able to get out or if somebody tried to manipulate them to depart from the practices that are proper practices, they still carry responsibility in law to see that this does not happen.
[979] There is in the following section the responsibility placed on the director and others to carry out certain functions of the Bureau. They must carry out their definite and personal responsibility each by virtue of his standing and the nature of the people they will be. Being in the public eye in a matter such as this, even if they had any wish to diverge from the straight and narrow, they would be damned fools to do so. In the first place there would be ruinous consequences to their own standing and professional operations in this country if there were any breath of malpractice being carried on either by themselves, by their own wish, and Senator O'Quigley does not suggest that this might be thought about, or by direction of anybody else, by a Minister of Government or anybody else. The House will see that this is just not on and I want to press home that it is being said publicly here so that the public may understand that it is not on. If the Seanad has done nothing except that we can say this is to be the position, it is well this amendment has been discussed.
The director or chief officer of this Bureau will be beyond reproach. He will be the best that can be got in this particular field. In addition, the Minister for Local Government has already stated that in regard to the certification that Senator O'Quigley mentioned, this will be the responsibility of that Director or chief officer of the Bureau and this function may only be delegated by him possibly to his assistant, so there will not be any question of faceless men, or allegations that faceless men are writing these certificates. The duty will devolve on the top man and a certificate may be signed in his absence only by his assistant by delegated authority from the chief himself. That being so and this being the type of body proposed to be formed, not only should the House be satisfied that giving it status as a semi-State body in the circumstances I have outlined is the proper way to do the job but also that it is beyond any shadow of reproach, that it may not function improperly or may its functions be misapplied [980] or abused in any way. Not only should the House be satisfied but the public, for whom Senator O'Quigley seems to be so concerned, will see the circumstances so that they will be satisfied. There must be no question of reproach about the veracity of the performance of their functions by the members of the Bureau in regard to these matters of such serious import for the individuals concerned.
Mr. O'Quigley: I appreciate what the Minister has said about the integrity and the standing of the members of the Bureau but all he has said would really form a very good argument for the amendment because the Minister has been describing what these people will be. What I want to do merely is to have it stated in the legislation that they are all the Minister says and that the law says it too. However, for some reason, the Minister does not want to put this in that way and I shall not pursue the matter at great length.
Of course the Minister, first of all, thinks from the point of view of a Minister watching the operations of his Department every day, while we, who are not in the same position, see things from the outside. We have had varying experiences which the Minister does not have. We have seen laws which, when they were being enacted here had a particular intention, but which when they came to be applied administratively—this applies equally in the courts as it does within the Civil Service—took on very strange shapes. Of course the Bureau will have to perform the functions assigned to it by this Act. That is so, but equally so we have seen appeals officers appointed under the Social Welfare Act of 1952, with the functions given to them directly by the Oireachtas, and if anybody had put down an amendment in those days to say that they shall be independent in the exercise of their functions and if the Minister for Agriculture, who is here this evening, had been dealing with it, he would have said in relation to the appeals officers what he has said now in relation to the Bureau, its director and members. However, we know what has happened in relation to the appeals [981] officers. They have not been independent.
Mr. Blaney: I beg to differ. During 20 years experience, I have found them most independent.
Mr. O'Quigley: If the Minister would bear with me——
Mr. O'Kennedy: Is there not a terrible difference between a corporate body such as the Bureau—one can always cry "wolf" and an appeals officer as an individual, even allowing for all the suspicions?
Mr. Blaney: From my experience and knowledge over 20 years, I have never known appeals officers to be otherwise than independent—and I think I know all the things that are worth knowing about them and their functions.
Mr. O'Quigley: The Minister, as always, can learn.
Mr. Blaney: I am certainly open to learn.
Mr. O'Quigley: Let us be complimentary and say he is not too slow in learning.
Mr. Blaney: I have got reason for saying what I did and I believe in it sincerely.
Mr. O'Quigley: I have no doubt that is the Minister's experience, but as I have said, we have experience on the outside. I know of one case that went the whole way through the courts, arriving in the Supreme Court, where it was established that the appeals officer, instead of exercising the appeals functions given to him by the Act, took his directions from the Department. One subsequently had the experience of appeals officers acting as if the Supreme Court had not indicated what the powers of appeals officers were.
I am talking about the fact that both the Bureau and the appeals officers get their powers directly from the statutes, but when it comes to the exercise of these powers, it can be a different matter. I have said that I [982] expect the Bureau, composed of highly scientific men, will take its own line, but what I want to do is to protect them from the interference to which they may be subjected by some overanxious part of the Department of Local Government. It is important that the director of the Bureau can then point out: "We are to be independent in the exercise of our functions and apart from certain things the Minister may direct, we will have no guff from you".
This is important from the point of view of a bureau whose certificate will be conclusive evidence of whether a man is guilty of drunken driving. There is no reason in the world why the Minister will not accept the amendment which merely puts into the Act the label which the Minister has spelled out so eloquently in so many words. I merely suggest that the Bureau and every member of it shall be independent in the exercise of their function so that thereafter members of the public will have no doubt in their minds and will be able to say, in so far as it is possible to remove it by legislation, that the Bureau, who issue the certificate and which, when handed into court, will determine whether a person is guilty or not: "It is the same as with our judges under the Constitution".
Likewise, this Bureau, which will be the arbiter of whether a person is guilty of drunken driving, will have the same label of independence as will, through this amendment, be written into the legislation from the beginning. This amendment could not do anything but good; I should like to hear Senator O'Kennedy or somebody telling us what harm it could do. On the contrary, it could make a positive contribution to the status of the Bureau and it is highly important that a Bill like this, which is making inroads into certain customs and liberties of ours, should take care that this liberty of functions is maintained.
Mr. O'Kennedy: Having been invited to contribute, I wish to say that surely subsection (2) clearly spells out what the nature of the functions of the Bureau should be. It says that the [983] Bureau shall do certain things without reference to the Minister. Could anything be clearer? Senator O'Quigley appears to be arguing in a circle. Though he wants to have this independent Bureau, he appears to suggest at the same time that it will be in some way subject to such orders as will be laid before the Houses of the Oireachtas. Either it is to be entirely independent of these Houses or it is not. I do not think it would be appropriate that it should be entirely independent.
The powers being conferred on it will be conferred by the elected representatives [984] and accordingly the Oireachtas must retain some authority, not in relation to the functions of the Bureau but to the constitution of it. One can always find grounds for suspicion in the setting up of any body, semi-State or otherwise, from Aer Lingus down. I think the Bill sets out clearly the matters posed by Senator O'Quigley.
Amendment put and declared lost.
Amendment No. 17 not moved.
The Seanad adjourned at 10 p.m. until 10.30 a.m. on Thursday, 4th July, 1968.
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