Brian Lenihan Jnr (Dublin West, Fianna Fail)

The answer to both points raised by the Senator is "No". Taking them in sequence, I will deal first with the question of the relaxation of the hearsay rule, as proposed by the Minister. The common law developed the rule that evidence is not admissible if the person submitting it is not available in court to give the evidence on oath and be subjected to cross-examination. In general, it is in the interests of justice that this should always be so, when persons are giving accounts of the transaction of events from memory.

However, the application of the rule to the proof of documents has occasioned considerable inconvenience down the years. In the proof of a document the rule requires that not alone should the original be produced in all cases, but that the maker of the document or the person who kept it in the course of his or her business or calling, should be available to prove it. If the document has been out of the possession of that person in the intervening period, the continuity of its possession must be proven to the court's satisfaction and successive keepers or handlers of a document should also be available to give evidence.

A famous decision was handed down in England and Wales in the 1960s, where a prosecution as regards a stolen car racket collapsed because counsel was not in a position to call the makers of the records for the manufacturers who installed the relevant chassis numbers on the cars and could match them to registration details. So, in the Criminal Evidence Act 1992, the Oireachtas provided for substantial relaxation of the rule as regards documentary matters in the general law of evidence.

What is being proposed here is the specific relaxation applicable to the Criminal Assets Bureau. It seems a reasonable relaxation. The reason the formula "in the interests of justice is improved" is being inserted is that in all these matters relating to the proffering of evidence, some residual or ultimate discretion must be left to the court to do justice between the parties. However, it seems that a rigid application of the hearsay rule to documents can, in itself, produce injustice in the sense that it puts far too onerous a burden, either on the prosecuting authority in a criminal case, or on the Criminal Assets Bureau in these civil proceedings. If the rule is being relaxed both parties to the procedure still have to be protected by ensuring there is residual discretion in the interests of justice.

I do not want to anticipate how the courts will construe that issue. However, where some question of irregularity might arise as regards any particular document, and where it did not appear to come out of the ordinary course of business, the court might require the full traditional form of proof.

As regards the corrupt enrichment order, Senator Tuffy raised the question of the communities affected by unjust planning decisions. Of course, the Minister for Finance is the personification of the State for the purpose of recouping the ill-gotten gains that have resulted from the corrupt inducement or activity. Clearly, when corruption takes place, that is not in the public good or interest and can have an effect on communities. The only way to compel the wrong doer to disgorge the wrongful benefit which he or she has acquired from corrupt conduct, is to compel him or her to disgorge it back to the community. That is done through the medium of the Minister for Finance in this legislation.

We could embark on an argument similar to the argument we had on the Criminal Assets Bureau as to whether these moneys would be better committed to specified worthy social purposes on a ring-fenced basis. I assure the House it is not the intention of the Minister, in introducing this provision, to sanction corruption or to suggest that because a clear unequivocal civil remedy is provided for in the legislation that some countenance is being given to this type of activity. In fact, the motivation for this measure is the very activity that has been exposed in recent years. The awareness that there is a powerful civil remedy is a valuable one, though I agree with Senator Tuffy that it is always desirable that persons who contravene the criminal law should also meet their desserts before the courts.