Leo Varadkar (Dublin West, Fine Gael) | Oireachtas source

I welcome the opportunity to address this Bill and thank Deputy Timmy Dooley for raising some very important issues through this proposed legislation. The area of road safety is one in which there has been always cross-party support and there is no disagreement on our overall objectives, as the Deputy stated. Collisions on the roads lead to unnecessary deaths and serious and sometimes life-changing injuries which have an impact well beyond the victims or their families, friends and colleagues. Any proposal to reduce the casualty rate on the roads should be given serious consideration.

For many reasons, there has been a welcome decline in the number of road deaths in Ireland, even as the number of vehicles on the roads has been growing. The decade from 2002 to 2012 saw a reduction in the number of road fatalities annually from 376 to 162, which represents a drop of almost 60%. There was similar success in reducing the number of serious injuries in that period from 1,009 in 2003 to 487 in 2012. This represents the impact of a wide range of factors. We have better roads, better standards for vehicles and better maintenance standards through the NCT and commercial vehicle testing. There are tougher laws on drink driving, with mandatory alcohol testing check points. The introduction of the penalty points system was also a major step forward and has both a deterrent and an educational role. In addition, the driver licensing regime has become more rigorous and will be further strengthened by legislation which I have already placed before the House. The creation of the Road Safety Authority, RSA, also played a crucial role, bringing together and co-ordinating many activities designed to promote road safety. The RSA has ensured joined-up thinking across a range of areas, from vehicle standards to driver training and testing to road safety education.

We should also bear in mind that there has been a shift in driving culture. Ultimately, road safety can never be ensured by legislation or enforcement alone. Individual drivers are responsible for their behaviour behind the wheel and reading the road ahead of them. For safety to increase, it is essential that drivers are responsible and behave in a safe manner, with due regard for other road users. We have seen a particular cultural shift in the area of drink driving which is no longer socially acceptable. Continued progress in road safety will involve a number of elements from legislation to enforcement and education, but none of this can work without the help of members of the public, be they drivers, cyclists or pedestrians.

It is a matter of concern to see, for the first time in many years, that we are certain to have a higher number of fatalities on the roads this year than in the previous year. The reasons for this increase, like the reasons for the decrease in the past decade, are manifold. The solutions, therefore, must come from many angles. Interestingly, the number of serious injuries this year to the end of October was 394, down 20 on the same period last year. Early this year I launched the road safety strategy 2013-20. This new strategy sets ambitious targets. We aim to reduce the number of fatalities from 162 in 2012 to 124 or fewer in 2020. In addition and for the first time in a road safety strategy, we are extending our focus from fatalities to include serious injuries which we aim to reduce by 30% over the lifetime of the strategy. We have set out 144 actions through which we aim to achieve these targets. The sheer number of actions is testament to the complexity of this issue and the interconnectedness of so many measures to increase safety on the roads. The actions fall into the broad categories of education; engineering; enforcement; and evaluation, data and research. Actions in each area, backed up, where appropriate, by legislation, will help to keep up the pressure and momentum to improve safety across the board on the roads.

The Bill before us proposes actions in an area of particular concern on the roads, namely hit and run incidents. These cases, regardless of whether they involve death or injury, are doubly traumatic for those affected. Not only is a loved one, friend or colleague killed or injured but the perpetrator has fled the scene. I know that Deputy Timmy Dooley has been approached by people who have suffered owing to hit and run incidents, in particular the family of Shane O'Farrell, a young man from Monaghan who was tragically killed in 2011 in a hit and run case. I know his family has highlighted the issue ever since. I am deeply aware of the profound impact which tragedies such as these have on families and friends. In this case, not only was a young life ended unnecessarily, worse still, the driver fled the scene and no custodial sentence was imposed on the individual responsible. There have also been other hit and run incidents in recent months, including one in County Donegal of which I am aware which also led to a fatality.

The Bill starts from the premise that there is a gap in current legislation on hit and run incidents and proposes to remedy this gap by new measures to provide for serious sentences for hit and run incidents involving death or serious injury. We must first consider what the law provides for. Section 106 of the Road Traffic Act 1961 sets out the duties of drivers when a collision occurs involving injury. These duties include stopping the vehicle, remaining at the scene and giving appropriate information to a garda or appropriate other person. This section applies to all vehicles involved in the incident, not exclusively to the vehicle which caused the injury. The maximum penalty for breach of this provision is a fine of €2,000 and-or six months in prison. Evidently, this is an important provision in itself and there are sound reasons for keeping it, but it has not been sufficient in addressing hit and run incidents where death or serious injury has been caused. I understand the common practice in the prosecution of hit and run cases where death or serious injury is caused is to use section 53 of the Road Traffic Act 1961. This section deals with dangerous driving. Where the dangerous driving leads to death or serious bodily harm, the penalty under the section is a maximum fine of €20,000 and-or ten years imprisonment.

The difficulty is that it is often not possible to demonstrate that a person was actually driving dangerously, within the terms of section 53. This means that an individual who causes death or serious injury and flees the scene can often only be charged under section 106 and is therefore liable to no more than a €2,000 fine and on conviction, a six month prison sentence at most. I agree this is utterly inappropriate and inadequate for an offence which has caused death or serious injury and is compounded and aggravated by the perpetrator leaving the scene. As the law stands, the deterrent against leaving the scene is not sufficient. I therefore agree with Deputy Dooley that there is a need for amending legislation in this area and I am happy to endorse the broad principle of the Bill in addressing this issue.

I have asked my officials to examine the specific measures proposed to deal with hit-and-run offences in the current Bill. They have consulted on this matter with the Office of the Attorney General. While there is no question that we should and will address this significant gap in legislation, I am advised that there may be difficulties with the way in which this Bill proposes to deal with the matter. In particular, I am advised that great care is needed in framing an amendment which will not unintentionally undermine the working of section 106 and so that it will be workable. As politicians and law-makers we must always consider the law of unintended consequences and take care not to do harm in our efforts only to do good. Deputies will know that last month I introduced the Road Traffic (No. 2) Bill in the House. I have asked my officials to discuss with the Office of the Attorney General the possibility of introducing an amendment to that Bill which would address the hit-and-run issues that Deputy Dooley has raised. Work is well advanced on this and I expect to be in a position to introduce an amendment on Committee or Report Stage which will address the issues raised. My officials have already discussed this matter with Deputy Dooley and they will contact him when the amendment has been finalised.

The Bill we are discussing today also proposes an important change to the law on testing for intoxicants. Currently, the law provides for testing of drivers for intoxicants, either through breath tests or through the taking of blood or urine specimens. This Bill is proposing that in cases where an offence under section 106 of the Act applies - in cases where the driver has fled the scene - breath tests should be allowed for up to 24 hours after the incident. I appreciate the intention behind this proposal. Normally, if a person remains at the scene he or she undergoes a breath test or to provide a specimen of blood or urine at a Garda station. The idea behind the proposal in this Bill is that people who have fled the scene and are later detained could still be tested for intoxicants. However, there are some problems with this provision. The law as it stands states that specimens to be measured for intoxicants must be taken within three hours of an incident. This applies whether the specimen is of breath, blood or urine. The reason for the three-hour limit is that it is not possible, as a matter of science, to use test results from specimens taken a significant period after an incident, to calculate back to what the level of alcohol would have been at the time of the incident. Inevitably, the value of the indication given by the testing is reduced the later the specimen is taken. As a rule, it would be unlikely to detect alcohol, even serious alcohol ingestion, more than 12 hours after that ingestion, due to the half-life of the substance.

I have looked into this issue and I note that in some other jurisdictions, specimens of blood and urine can be taken later than is the case in this jurisdiction. For example, Canadian law allows for the taking of specimens as soon as practicable after an incident. In practice this has proven difficult from an evidentiary point of view, with drivers in hit-and-run cases often turning themselves in 24 hours after an incident when no meaningful test for measuring their level of intoxication at the time of the incident can be undertaken. Their defence attorneys use that negative test as part of the defence. Since it is not possible to calculate back from the level of intoxication when a late specimen is taken to the level of intoxication at the time of the incident, the Canadian law works on the principle that if someone is actually over the limit when the late specimen is taken then he or she must have been over the limit at the time of the incident, unless it can be proved otherwise. In practice this is not an easy measure to operate. If we say that a person intoxicated 24 hours after an incident must have been intoxicated at the time of the incident, it would be easy for him or her to claim that they had taken a drink in between. In fact, if someone were trying to evade responsibility, this is probably the first thing that they would do.

In the UK, there is provision to take specimens of breath, blood or urine for up to 18 hours after an incident. The norm, however, is to take them much sooner. This provision does not relate to cases of hit-and-run but rather to circumstances where a driver is incapacitated and incapable of giving consent to provide a specimen for testing.

I have consulted on this issue with the Medical Bureau of Road Safety, which is responsible for the testing of specimens of blood and urine for intoxicants. The MBRS informs me it is possible to analyse a blood, urine or breath alcohol specimen and determine the alcohol concentration at the time the specimen is provided. However, the scientist would be unable to provide an exact alcohol concentration for the time of the incident due to the complex nature of alcohol metabolism and inter-individual variation. The further away in time from the incident that the specimen is taken, the greater the complexity and the wider the range of possible levels giving rise to arguments on calculation and interpretation of the approximated result.

In a hit-and-run situation there is the additional complication that the driver is not observed for a period of time and may or may not take alcohol and or drugs during this period. If this provision was in place, this almost certainly what would happen. Similarly, the MBRS can analyse a blood or urine specimen for the presence of a drug or drugs and determine the presence of a drug or drugs in the specimen at the time the specimen was provided.

Where a drug is detected it would indicate that a person, at some time prior to the provision of the specimen, consumed that drug. However, it is not scientifically possible to determine when the drug was ingested or consumed. In other words, it would not be possible to tell whether the drug was ingested before or after the incident. I listened to Deputy Dooley's contribution in which he expressed the view that the information should still be given to the judge or jury so that they could decide, on the balance of probability, as to whether the person was intoxicated. As we know in this jurisdiction and in most democracies, when it comes to a criminal case the test is not on the balance of probability but it is a test of beyond reasonable doubt. If a person was tested positive for alcohol or drugs in their system two or three days after an incident, it would not be possible to say that it is beyond reasonable doubt that during those two or three days, the person did not take alcohol or ingest drugs. The probable effect would be to create a whole new line of defence for a person suspected of an offence rather than what is intended. By the same token, the absence of alcohol or drugs several hours after the incident does not allow a scientist to conclude that no alcohol or drug was present at the time of the incident. Allowing for testing to take place a long period after the incident could inadvertently provide a defence for the person suspected of the offence.

In summary, the advice of the Medical Bureau of Road Safety is that it is possible to conduct an analysis of a specimen taken at any time but the difficulty is in correlating the result to the time of driving if there is a significant time gap before the sample is taken. There are simply too many variables for it to be possible to calculate back to what would have been the level of intoxication at the time of the incident and this is the information that matters. In light of the advice from the MBRS, it would not be advisable to extend the time for taking specimens to test for intoxication. The current law does not actually prevent breath-testing 24 hours after an incident, but the results would be of little value. This is the reason it is not done. If the individual was under the limit at the time of testing, it would not be possible to calculate back to his or her alcohol level at the time of the incident, even if we could prove that they had not consumed any alcohol in the interim. If the person was over the limit at the time of the test, this would likewise not be proof that he or she was over the limit at the time of the incident.

Extending the question from breath to blood and urine, it is clear that the late taking of specimens is not scientifically reliable. I would be among the first to be pleased if it could be done but it is clear that it would not work, and would lead to a degree of disrespect for the law if cases proved impossible to take or had to be abandoned.

In conclusion, I am in agreement with Deputy Dooley that there is a serious gap in the law with regard to hit-and-run incidents. I thank him once again for bringing this very important issue to the attention of the House. Unfortunately, I cannot support the proposal that we should abandon the idea of late testing for intoxicants, due to the expert advice furnished by the MBRS but I agree with the Deputy on the principle of reforming the road traffic legislation to provide proper penalties for hit-and-run cases but care must be taken in how this is achieved. For this reason and following legal advice, I believe we can achieve what is proposed in this Bill by more effective means. My officials and I will work with Deputy Dooley to introduce an amendment on Committee or Report Stage of the Road Traffic (No. 2) Bill.

I thank the Deputy for raising this issue and I look forward to discussing these issues further with him when dealing with the Road Traffic (No. 2) Bill. For the reasons I have stated, the Government will not be opposing the Bill.

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