Joe O'Reilly (Fine Gael)

I join with others in congratulating Senator Regan on bringing this legislation before the House. It is a good use of the Seanad and his role as a legislator. We are fortunate to have someone like him to handle this. As an eminent senior counsel, he has a particular knowledge of the area. As a practising public representative, he has an appreciation of the implications for the people of this legal anomaly. I congratulate him on this achievement.

While people may quibble about the detail, no one can dispute the merit of the Bill's fundamental point or the quality of the legislation. Senator Regan would be the first to accept amendments and to consider the legislation on Committee Stage with other Senators. He has done well in introducing the Bill and deserves our warmest congratulations.

Under the Kenny judgment in the Supreme Court, the exclusionary rule effectively means that a minor mistake or technical error made by a garda in the presentation of a case will end the trial in question and discredit all of the evidence. It is important to state that Senator Regan is attempting to modify the exclusionary rule to allow for judicial discretion. As such, a judge could weigh up the prosecuting garda's error and make a judgment. He or she would either accept the bona fides of the evidence and let it go to the jury or disallow it. Senator Regan is careful to enshrine in the legislation the fact that it would be a judicial function. It is a reasonable proposition because the judge would be in a position to weigh the community and public interests with the accused's constitutional rights. While it is critical that those rights reign supreme, they must be balanced with the rights of the victims and everyone else concerned.

Senator Regan would be at the vanguard of those who would say that evidence obtained by improper means, such as duress, brutality and so on, would not be admissible. If the mistake fell in that sphere, the evidence would not be admissible. The Bill is a bona fide attempt to remove a difficulty in the operation of the courts and the search for justice. In light of the People v. O'Brien, a case cited in the Bill's explanatory memorandum, the acceptance that discretion should be exercised is clear. If a mistake is a technicality or a minor error, there is no logic in letting it stand before a prosecution.

I appeal to the Minister of State to see reason. What Senator Regan is attempting to achieve through the Bill is a noble and worthy objective, given the lawlessness that is sadly a feature of contemporary society. Given our acceptance of the fact that the legislation would achieve the objective and our preparedness to consider the Bill on Committee Stage, the Minister of State should be reasonable and allow it to pass Second Stage.

To take practical examples, we all read our local newspapers. The provincial press has a good tradition of reporting the courts with significant detail. Every Senator knows of someone who, after putting lives at risk through his or her drunken driving, has the case against him or her dismissed because a letter was missing from an address or some other incidental matter, the reason for which is normally the accused. In one of the cases cited in the explanatory memorandum, someone in possession of heroin, possibly for resale purposes, got off on a technicality because his mobile telephone call was intercepted by a garda.

We must protect against an abuse of the law and anything less than complete adherence to the constitutional rights of the accused should be out the window. However, we must create a situation in which courts can be efficient, justice can be done, the rights of victims and innocent bystanders can be preserved and community interest in the rule of law can be maintained. We need a functional court system that responds to society's needs, allows victims to plea for justice and protects the constitutional rights of the accused.

This is precisely what the Private Members' Bill seeks. Senator Regan seeks to abolish the exclusionary rule in its pure form and to replace it with judicial discretion, which would evaluate the reasons for errors and whether they are genuine or represent infringements of constitutional rights. Senator Regan would be the first to declare that evidence gained through a constitutional infringement should be thrown out. However, evidence affected by a garda's technical error should be admitted. If there is a problem in Garda practices, it would be a matter for the relevant garda and his or her superiors or for the Garda Ombudsman. It is not sufficient reason to allow someone who is clearly guilty to walk out of a court, nor is it sufficient reason to send alleged victims out of courts frustrated by the law, disgruntled and under the belief that justice has not been done.

I commend Senator Regan on this groundbreaking legislation. He has done the House much service and has an acute awareness of what we should be doing, namely, implementing reformative legislation. If accepted, albeit with modifications, the Senator's Bill would make the courts more efficient and help the rule of law and justice to be achieved. By any hierarchy of values, these objectives have a nobility that is beyond question.

I appeal to the Minister of State, who is a good listener, to accept the merit of the legislation and to rise above the narrow political concerns that occupy us at times, particularly in this Chamber. He should accept the worthiness of the Bill and allow it to pass on to Committee Stage.