Derek McDowell (Labour)

I am grateful to Senator Norris for the invitation to be disorderly and deal with his unmoved amendment. The issues that he raised can be dealt with by custody regulations made under the Criminal Justice Act 1984. Senator Norris is raising ways it can be proved beyond contradiction the taking of a sample was done in a lawful way. The majority of people will be happy to provide a DNA sample when asked to do so by running a swab inside the cheek. To put in place a requirement that all this must be done before a camera may be unnecessary with regard to cooperative witnesses. As I said, this can be dealt with by way of regulation.

The effect of the amendments raised by Senator Tuffy is to remove subsection (2) from section 17 and subsection (3) from section 18, the purpose of which is to extend the power to receive statutory declarations to members of the Garda Síochána and the employees of public authorities. Removing the two subsections would defeat the purpose of the sections and they would become redundant. The sections would then only provide that a person who makes a statement to a garda or an employee of a public authority could make a statutory declaration. A peace commissioner or commissioner for oaths would need to be brought in to receive the declaration and there is nothing to prevent this from happening at the moment. If the Garda really want commissioners for oaths present they will be asked to come in.

Section 17 extends the power to receive statutory declarations to members of An Garda Síochána while section 18 extends the power to receive statutory declarations to competent persons who are defined as the employees of a wide range of public authorities. Section 1 of the Statutory Declarations Act 1938 envisages that persons other than notaries, commissioners for oaths and peace commissioners might be designated by law to receive statutory declarations and sections 17 and 18 do this. The reason for the inclusion of these sections is that section 16(2) refers to statements made on oath or affirmation containing a statutory declaration or in circumstances where the witness understood the requirement to tell the truth and contains no limitation on to whom the statement must be made.

The extension of the power to receive statutory declarations to the Garda Síochána in section 17 and all public authorities in section 18 flows from section 16(2)(c). It means there is a mechanism that can be used by the Garda and public authorities, for example the Revenue Commissioners, immigration officers, the Passport Office and so on. Investigative agencies will know that people making statements to them should understand the requirement to tell the truth, that these are not simply casual conversations where people can lie, or not, as suits.

Sections 17 and 18 simply allow the Garda and the employees of public authorities to receive statutory declarations. In the event that a statement contained in a statutory declaration is subsequently relevant to criminal proceedings and is recanted it will be a matter for the court to decide, within the parameters set out in section 16, whether it should be admitted.

A high threshold is set out in section 16 for the admissibility of a statement that has been recanted. The section requires the court to subject a statement that has been recanted to a series of tests before making a decision on whether it should be admitted. It can only be admitted if the person who gave it is available for cross examination and the witness confirms or it is otherwise proved that he or she made it. The court must also be satisfied that direct oral evidence of the fact concerned would be admissible in the proceedings, that the statement was made voluntarily and that it is reliable.

Furthermore, in order to be deemed admissible, the court must be satisfied that either the statement was given on oath or affirmation or contained a statutory declaration by the witness that the statement is true to the best of his or her knowledge or belief or the court is otherwise satisfied that when the statement was made the witness understood the requirement to tell the truth. Section 16(4) provides that if the court is of the opinion, having regard to all the circumstances, that the admission of a statement would not be in the interests of justice it should not be admitted. It will be clear from the tests built in to section 16 that a statement containing a statutory declaration is not decisive when a court is deciding whether to admit a statement, it is simply one of a number of factors the court will take into consideration.

Senator Tuffy asserts that there is a rule of practice, in the world of lawyers, suggesting that solicitors should not act as the administrator of an oath or receive a statutory declaration relating to a matter in which he or she has a direct financial or professional interest and they should always go to another lawyer to achieve that end. That is ethical and I do not suggest it is redundant, but people dealing with agencies of the State, such as customs and excise, are in question here.

Customs and Excise officers may ask questions on where the oil in the tank of a car or heroin hidden behind a panel in a recently searched car came from. If, in those circumstances, someone makes a statement indicating who did it or who was in possession of the car and subsequently writes a statement to the that effect, containing a statutory declaration, then that statement carries more credibility than a mere conversation on a bar stool in a pub. If the person understood that he or she was making a statutory declaration and that it is an offence to tell an untruth in such circumstances, then it will help a court to decide whether that person was making a formal statement, expected to be relied on by someone else, or was simply a self-serving white lie to get out of a difficult situation. This is the line that concerns us.

I offer an example. A garda is interviewing a witness to a murder in Limerick. One of the people in the station claims to have seen AB stick a knife into the deceased. The garda asks if he is certain it was AB to which the answer is "Yes". The witness agrees to put this in writing and make a statutory declaration to that effect. It is entirely different for a person in such circumstances to recant than for a person to do so having simply made a statement to a detective in a bar.

It can be an oath, affirmation or statutory declaration or it can otherwise be given in circumstances where the court is satisfied that the statement maker knew it was important to tell the truth. I can imagine a situation in the latter category where somebody, in the course of a video-recorded question and answer interview, says he or she saw person AB stick a knife into the deceased. The detective sergeant conducting the interview would then ask if he or she was absolutely sure that it was person AB, to be told "yes". The detective sergeant would then tell the person that on the basis of the statement, members of the Garda Síochána will arrest person AB. He would ask if the statement maker was absolutely certain or had any doubts about whether it was person AB or somebody else at the scene. The statement maker says that he or she is absolutely convinced it was person AB. In certain circumstances, if there is a record of it and if the court was satisfied from what it saw that the person really knew the import of what he or she was saying, that it would be taken seriously and would be a serious matter to send members of the Garda Síochána on a false trail, that clause could kick in.

We are leaving it to the courts in the last analysis to decide whether a statement was made with such premeditation and formality that the maker knew that what he or she was saying would be relied on and that he or she had an obligation to tell the truth. Obviously, where an oath, affirmation or statutory declaration is concerned, there is an automatic obligation to tell the truth because one commits an offence if one says something false in that context.

We must remember that making a false report and accusing somebody of committing a crime is itself a crime if it is done with malice or with the knowledge that it is not true. If one goes into a Garda station and declares that one saw another person commit a serious offence, that is a false report and it is a serious crime to lie to a sergeant and then wander out of the station, knowing that it will have consequences. The Garda Síochána will pursue people for so doing.

The purpose of this section is to state that we must differentiate between remarks people might make by way of deception in order to exculpate themselves, to throw somebody off the scent or to impress somebody and statements made by people who sit down at a table and put themselves on the line by saying "that is what happened". It is in that latter category that the real scandal arises if somebody, having given a lengthy and vivid account of an incident in writing and having signed it, or it having been video recorded, says six months later to a jury, "I have no idea why I said that and am not standing over it at all". In certain circumstances, the jury is entitled to examine the original matter and declare that it prefers the original to what it is hearing in court.

Senator Tuffy asked if judges would automatically strike down statutory declarations taken by gardaí in these circumstances. I would certainly hope not because there is nothing inherently unfair about it. It is just a degree of formality which exists. Statements made under section 21 of the 1984 Act are relevant in this context. For those who are not familiar with that Act, providing a witness statement is made in a certain format, it can be handed into a jury without producing the deponent at all, if there is no objection from the accused. It is not always necessary, for instance, to produce the garda who preserved the scene in court. If he or she made a section 21 statement confirming that he or she stood beside the body from 6 a.m. to 4 p.m. until the State pathologist arrived and nothing happened to the body, that can be handed in to the jury. If it is tendered in writing, with a subscript declaring that the garda makes this statement, knows it to be true and that if anything in it is false, he or she will be liable to be prosecuted, should it be tendered in a trial, that statement becomes admissible evidence. There is nothing novel about that. Furthermore, that statement does not have to be made to a commissioner for oaths, a solicitor or somebody who is independent of the investigation. It is simply there and admissible as evidence with that particular proposition added to it at the end.

I strongly suggest we should leave the text as it is. This is an effort to make statements which are intended by the maker to be relied on by other people and are made in a context whereby the maker knows that it is important to be truthful, and prima facie capable of being used in the circumstances set out in section 16.