Michael McDowell (Dublin South East, Progressive Democrats)

I tend to agree with Senator Hayes. The amendment Senator Terry is presenting delimits the meaning of another term when used in the Bill. Any criminal law statute, which this effectively is, has to be interpreted as time goes by and in the context of the facts of any particular case. Where there is ambiguity in a Bill, as a matter of legal construction in a criminal statute the Bill is always construed, where two reasonable interpretations are open, in a manner favourable to the accused. It is not a question of an injustice being done but when it is decided that "intoxication" is to have a clear and precise meaning in a statute, we must go very carefully, as Senator Hayes has just done, through the proffered definition and ask whether that is exactly what is meant.

For instance, the use of the term "substance" in the amendment could mean — I am sure this definition has been taken from some other statute — consumption of food or over-indulgence in, say, coffee, Red Bull or something like that. The term "intoxication" is well understood by the criminal justice process. We know what intoxicating liquor is, and I do not believe it is wise to tie down the definition to the degree of specificity that is in the amendment.

This is a definition of the term "intoxication" where it would qualify the term "mental disorder". The term "mental disorder" includes mental illness, mental handicap, dementia or any disease of the mind but does not include intoxication. We should not at this stage insert a new rigidity into the Bill as to what intoxication might mean in a certain circumstance. A broad brush approach is being taken in this amendment, which refers to "a substance". I realise the term "other substance" probably would be construed eiusdem generis with the preceding substances which are alcoholic drink, drugs or solvents but I am slightly wary of doing something without clearly working out what it would actually mean. It is better to leave the term undefined as commonly understood and wait for case law to emerge and individual cases to arise as to what it means where that becomes relevant, rather than try to tie it down in advance. I would be concerned that somebody who is allergic to food or a combination of foods might be affected by this definition.

I ask the Senator to take it that it is better to leave the term undefined and to leave it to case law and individual decisions of the courts, bearing in mind the overall construction I mentioned, that where two reasonable interpretations of a penal statute are open to a court, and one is more favourable with innocence rather than guilt, a court, having applied the ordinary meaning rubric in terms of interpretation, will normally give the benefit of the doubt to the accused in any particular case. It is better to leave it in this form because we would have to have a second amendment as to what the term "substance" means in those circumstances. If it was a combination of food, stimulants, etc., we could be in a peculiar position. The definition of "substance" is an extension of the term "intoxication" and therefore if we deny somebody the defence that the Act accords by virtue of the fact that they have taken some substance, we would need to know exactly what we were accomplishing by that extension of the term "intoxication". I do not propose to accept the amendment.