Joe Costello (Dublin Central, Labour)
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Question 7: To ask the Minister for Justice, Equality and Law Reform when the committee on video evidence was established; when it reported to his Department; the action which has been taken based on the report's recommendations; when he intends to implement section 16 of the Criminal Evidence Act 1992, which provides that a video recording of evidence given by a person under 17 years of age in respect of sexual or violent offences shall be admissible as trial evidence; and if he will make a statement on the matter. [22119/06]

Michael McDowell (Dublin South East, Progressive Democrats)
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One of the consequences of the judgment of the Supreme Court that section 1(1) of the Criminal Law Amendment Act 1935 is unconstitutional is an increase in the evidential requirements on the prosecution in prosecutions under the Criminal Law (Sexual Offences) Act 2006. As a result, child victims face the prospect of being subjected to adversarial court procedures that may be damaging to them. It is important that the undesirable impact of these developments is alleviated to the greatest extent possible. Section 16 of the Criminal Evidence Act 1992, as amended, makes provision for the video recording of any evidence given in respect of a sexual offence or an act involving violence by a person under 17 years of age. The relevant subsection was commenced in 1993.

Section 16 also makes provision for the video recording of a statement during an interview with a member of the Garda Síochána, or any other person who is competent for the purpose, made by a person under 14 years, in respect of whom a sexual offence or an offence involving violence is alleged to have been committed. It provides that such a video recording shall be admissible at a trial as evidence, provided the person whose statement was video recorded is available at the trial for cross examination. It is important to remember that proviso. It does not eliminate the issue of cross-examination.

My predecessor as Minister for Justice, Equality and Law Reform established a committee in 1998 to draw up guidelines for persons involved in video recording interviews by a member of the Garda Síochána with a complainant aged under 14 years of age or with an intellectual disability in relation to a sexual and-or violent offence. This committee subsequently submitted a report in 2003 entitled Good Practice Guidelines with related recommendations. The guidelines cover a number of areas and made a number of recommendations. My Department carried out its own examination of the report and asked the Health Service Executive for its views on the most effective mechanisms to oversee the implementation of the guidelines and associated recommendations, including the issues of how a joint national training programme for people involved might be established. One of our problems with this is that the quality, ethics and training of the people taking the original statement must be of the highest standard, otherwise they will be accused of prompting or coaching the child and the system would be brought into disrepute. The Health Service Executive has confirmed to the Department of Health and Children and my Department that it has established a task group which is working on this, will issue its first report within the next week and will finalise its work on this matter shortly thereafter. I regret the delay in coming forward with this and it is an area where greater urgency could have been shown by all involved.

Brendan Howlin (Wexford, Labour)
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I welcome the Minister's last comment acknowledging undue delay, which is a great pity. The Minister responded to my colleague Deputy McManus in November 2005 in virtually the same form he gave to the Dáil last week, that the Department had asked the HSE for its views and told the House that the HSE had indicated it was examining the matter thoroughly and would revert to the Department shortly. That was last November. Last week the Minister told the House he telephoned the HSE. I presume this was to put pressure on them and find out what had happened since last November. I understand we will have an interim report within a week. We need to get procedures and mechanisms in place. Does the Minister accept that?

The Minister made great play last week of introducing the Bill into the House last Friday of this new, adversarial court procedure that is now being produced, in which young girls will be asked about the length of their skirts and so on. Does the Minister accept there was always the potential for an adversarial court procedure to arise given the traumatic nature of cross-examination in such cases?

Does the Minister accept that section 5 of the Bill that has been enacted worsens the situation because it opens the anomaly whereby the girl would have to have had penetrative sex in order to be innocent? One can imagine the cross-examination that will flow from that. Under the provision enacted into law by these Houses attempted sex would not be an offence for the girl in those circumstance and this would open her to greater cross-examination. Does the Minister accept we will have to revert to this?

Having accepted the urgency, can the Minister give us a timeframe for establishing the sort of video evidence that has been agreed since the Criminal Evidence Act 1992 was enacted?

Michael McDowell (Dublin South East, Progressive Democrats)
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I will regard it as a matter of extreme urgency and when I receive the first report from the HSE next week I will ensure I have a final report as soon as possible from it. In the meantime I will look at what my Department should do rather than approaching this on a linear basis and waiting for them to pass something down.

Brendan Howlin (Wexford, Labour)
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What is the idea of a phased report?

Michael McDowell (Dublin South East, Progressive Democrats)
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I do not know. Last week I had little time for reflection, as the Deputies will understand, but something has occurred to me on a growing basis. An age category of 15 and 16 year old children was provided for in section 3 of this Bill and in section 2 of the 1935 Act and a separate offence was created for them. Suppose that, under the honest belief defence, a jury listens to an accused claim there was no conversation about the victim's age and that he or she believed the child was 17, not 15 or 16 years old. If that is the only evidence on the issue, and if it is agreed there was no extraneous evidence from which actual knowledge could be imputed to the accused, any of us, imagining ourselves as jurors, required to acquit unless the case was proved beyond reasonable doubt, would be forced to dig hard and deep before contemplating convicting a person unless there was something egregious or manifestly incredible about that evidence. In addition to the new cross-examination issues and new vagueness on 13, 14 and 15 year olds for one offence and 15 and 16 year olds for another offence, we must also face the fact that the 15 and 16 year old age category will be more difficult to prosecute in the case of total strangers. A curious by-product of where we are being driven by the court decision is that a contemporary or school pal would be imputed with more knowledge of the age of a young girl than a 24 year old man who met her casually. When the dust settles and everybody examines it again, it will not be seen as a step forward.

Brendan Howlin (Wexford, Labour)
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The Bill was wrong.

Michael McDowell (Dublin South East, Progressive Democrats)
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The change in the law that was forced on us has not been a step forward.

Brendan Howlin (Wexford, Labour)
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That change was not forced.

Michael McDowell (Dublin South East, Progressive Democrats)
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It was. We had stern rules — the Law Reform Commission report of 1990 called them harsh but I call them stern — that any adult interfering with a young person at an age or in a category prohibited by law took the entire risk. Now the risk is not borne exclusively by the accused, who can wriggle out of it. It will have some strange effects in individual cases including the fact that people who know each other and are friends will be in a worse position than strangers, and that is unacceptable to me.

Brendan Howlin (Wexford, Labour)
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We need to go back to all this.

Gerard Murphy (Cork North West, Fine Gael)
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The Supreme Court was entitled to make that decision and we must live by it. The fact that video evidencing was not available after such a long time under consideration by various Departments caused major concern last week when the Minister had to deal with the situation. The public was worried about barristers interrogating very young people. People cannot understand why it takes so long for Ministers and the Government to implement decisions. It is not a sign of good, decisive Government if these events continue to happen. There is a general perception that we must have multiple reports before we reach a decision. Can the Minister provide an accurate timescale for when video conferencing will be available?

Michael McDowell (Dublin South East, Progressive Democrats)
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I accept the Deputy's criticisms but I regard the matter as one of great urgency to bring the matter to a conclusion. The 1992 Act made the introduction of this material contingent on the availability of the person for cross-examination. It is not an alternative to cross-examination if an absolute precondition of the introduction of such evidence is that the person can be cross-examined later. Nonetheless, it is a good idea.

Brendan Howlin (Wexford, Labour)
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Will it be in place this year?

Michael McDowell (Dublin South East, Progressive Democrats)
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I hope so.