McDowell defends new legislative fiasco
Michael McDowell, Tanaiste and Minister for Justice, Equality and Law Reform defended the latest legislative fiasco on the protection of children from sex abusers in the Second Stage debate on the Criminal Law (Sexual Offences) (Amendment) Bill 2007 in the Dail on Tuesday, 6 March, 2007
Tánaiste and Minister for Justice, Equality and Law Reform (Michael McDowell): I move: “That the Bill be now read a Second Time.”
The primary purpose of this short Bill is to remedy an error in the Criminal Law (Sexual Offences) Act 2006. The particular point with which we are dealing was brought to my attention last week by Deputy Rabbitte, for which I thank him. It was a drafting error for which I am politically accountable and regretful. While the error is not as significant as has been claimed in some quarters, I have decided to act quickly and decisively to ensure the legislation on the Statute Book is as the Oireachtas intended because the error is a material anomaly in our law.
What gave rise to the Bill was the fact that section 6 of the 1993 Act was not updated when some of the sexual offences for which it would be an offence to solicit or importune another person for the purpose of the commission of a sexual act were repealed. To understand the reason for the offence at section 6 in the 1993 Act one must examine section 7 which deals with soliciting or importuning for the purposes of prostitution. Before the 1993 Act, there had been no provision similar to section 6. When the 1993 Bill was being drafted, it was considered that some types of soliciting might not be caught by section 7 and that it was advisable to bridge a potential gap by protecting children and mentally impaired persons from being solicited for sex in circumstances that might not amount to prostitution. While the fact that section 6 was enacted is evidence of changing times and greater awareness of the dangers of child sexual abuse, it was still enacted as a summary offence that to some extent paralleled the section 7 provision which made it an offence to solicit or importune for the purposes of prostitution.
Around 2000 there was concern about the low penalty for soliciting for the purposes of prostitution where the person solicited was a child. It was always the case in Ireland that there was no distinction in law between soliciting a child or adult for prostitution. Where soliciting a child led to actual sexual abuse, the penalties were and still are severe. It was decided to amend section 6 in the Children Act by stating it did not matter whether the soliciting was for the purposes of prostitution.
This meant that soliciting a child for the purposes of prostitution attracted the higher penalty set out in section 6. Advantage was taken to increase the fine to the maximum then allowed in the District Court and add the offence at section 2 of the 1935 Act to the offences comprehended by the section. Nonetheless, the offence remained a summary offence triable only in the District Court. Consequently, it could not be tried on indictment and all offences needed to be dealt with within six months of the date of commission.
While the original offence at section 6 was a summary offence for which there was no power of detention for questioning, we must recognise that with modern technology, new impersonal ways of soliciting children have emerged. I have decided to take the opportunity to provide for conviction on indictment with a maximum penalty of five years imprisonment. The offence will be an arrestable offence, which means the Garda will have the power to detain suspects for questioning.
I have also made a closer examination of the offences for which it will be an offence to solicit or importune another for the purposes of the commission of a sexual offence. Currently, under last year's Act, they are the most serious of offences of child sexual abuse such as sexual intercourse and buggery. It is also an offence to solicit or importune a mentally impaired person for the purposes of having sexual intercourse or to attempt to commit buggery. A person soliciting a child or mentally impaired person to commit a sexual act that does not fall into the most serious category but that is still objectively serious was not criminalised under section 6. Therefore, I have added sexual assault to the list of offences in that section. This is reflected in section 2 of the Bill. In this respect, the Bill differs from the Bill the Labour Party circulated helpfully on Friday. It has been necessary to split the section into two subsections. In the case of sexual assault, we are only concerned with protecting children, but we are protecting adults as well as children in the case of mentally impaired persons.
Section 3 mirrors section 6 of the 2006 Act. As the offence of soliciting or importuning in section 6 of the 1993 Act is not an offence included in the 2006 Act, it is necessary in this Bill to make separate provision for it. This will ensure provisions in the Criminal Law (Rape) Act 1981 concerning matters such as the exclusion of the public from the court, preliminary examination, restriction of evidence and anonymity will apply in cases where a person is tried for soliciting or importuning a child or mentally impaired person for the purposes of the commission of a sexual offence. It also provides for separate legal representation and legal aid in the circumstances provided in the insertion into the 1981 Act by the Sex Offenders Act 2001. As the offence was previously a minor offence, it was not seen as appropriate until now to make such provision. At subsection (4) provision is made for free legal advice for complainants in the prosecution of offences of soliciting and importuning under section 6 of the 1993 Act. This is done by way of amendment to the Civil Legal Aid Act 1995.
Section 4 provides for the amendment of certain enactments. It mirrors section 7 of the 2006 Act and is required for the same reason for which section 3 is required. Four Acts are being amended, the first of which is the Criminal Evidence Act 1992. The offence at section 6 of the 1993 Act is being included in the definition of “sexual offence” in the Criminal Evidence Act. This means that the provisions in the 1992 Act under which, for example, children can give evidence in court through a television link or an intermediary in trials for sexual or violent offences will apply where a person is charged under section 6 of the 1993 Act. This was not the case previously.
The second Act amended by the section is the Sexual Offences (Jurisdiction) Act 1996 which made it possible to charge in the State persons who were Irish citizens or persons ordinarily resident here alleged to have committed sexual offences against a child in another country. An offence must be an offence both in this country and the country in which it is alleged to have taken place. The offences are listed in the Schedule to the 1996 Act but do not include an offence under section 6 of the 1993 Act. The effect of this amendment is to add the offence to the Schedule.
The third Act being amended is the Bail Act 1997. As it is proposed to make the offence an indictable or serious offence, it is appropriate that it be comprehended by the Bail Act provisions under which it is more difficult to obtain bail.
The fourth Act being amended is the Sex Offenders Act 2001, to which I have made a brief reference. The Schedule to that Act contains a long list of offences, in respect of which conviction entails an obligation to sign the sex offenders register. The offence under section 6 of the 1993 Act is being added to the list. However, it has wider implications than simply being required to register. It will be possible for the Garda to apply to the court for a civil sex offenders order where a person has a conviction under section 6 of the 1993 Act, assuming all the conditions of Part 3 of the 2001 Act have been met. Part 4 of the 2001 Act places obligations on persons with a conviction for a sexual offence, including in future an offence under section 6 of the 1993 Act, when applying for work entailing unsupervised access to children. A judge will be able to impose post-release supervision in accordance with Part 5 of the 2001 Act on any person convicted of a section 6 offence.
Section 5 increases the penalties in section 3 of the 2006 Act for the offence of attempting to carnally know a person under 17 years of age. Without this amendment, the penalty for attempting to carnally know such a person would actually be less than the proposed penalty for soliciting or importuning, which would introduce a new and unnecessary anomaly into the penalty structure for sexual offences.
As Deputies are aware, making soliciting or importuning a child or mentally impaired person for the purposes of the commission of a sexual offence an indictable offence has far greater implications than simply increasing the penalty. It means that it is now included in the group of the more serious sexual offences and all that entails. The consequential amendments it has been necessary to make in the Bill are evidence of this. They are also evidence of the complex and convoluted nature of the way our criminal laws governing sexual offences have evolved during the years. They are a perfect example of the need for codification of our criminal law, a project that has been commenced with the establishment of the Criminal Law Codification Advisory Committee.
Whereas my officials and I overlooked this issue last year, it is also true to say an all-party committee examined the 2006 legislation. Even when the Director of Public Prosecutions appeared before the committee, no one saw the point raised by Deputy Rabbitte. It shows that when one scatters legislation across a number of statutes, it is possible to make such an error. Fine Gael Members had intended using their Private Members' time this evening to debate a Bill which would have introduced a sexual grooming offence. I decided to accept the Fine Gael Bill in principle. I thought it better not to waste time with two debates on the sexual abuse of children in which a certain amount of overlap would develop. Accordingly, I have decided to incorporate the substance of the Fine Gael Private Members' Bill into this Bill, and this I did in section 6. When I decided to do this I thought, optimistically, that I could simply lift the provisions in the Private Members' Bill and transfer them without amendment to this Bill - and, if necessary, tidy up minor drafting points when I produce my own proposals on sexual grooming in the context of the trafficking Bill now being prepared in the Attorney General's office. I took this view in the knowledge that much of the Private Members' Bill was based closely on the British legislation. However, on closer scrutiny I have been obliged to make a few changes to make the offence operable, and the Members opposite may be interested in the changes that are necessary.
The Private Members' Bill would have allowed for universal jurisdiction. In other words, persons with no connections to this country could be prosecuted here for committing an offence anywhere in the world. Such a provision, the Attorney General advises me, would fall foul of our Constitution. Before Ireland can exercise jurisdiction, there must be some connection, however slight, to this country. Therefore, for an offence of meeting a child, or travelling to meet a child, for the purpose of doing anything that would constitute a sexual offence, such activity would have to take place within the State or, if outside the State, the person would have to be an Irish citizen or ordinarily resident here. That is a standard provision, similar to rest of our sexual offences extraterritorial legislation as set out in the Sexual Offences (Jurisdiction) Act 1996.
To commit an offence under the Private Members' Bill a person would have to either meet the child or travel to meet the child. In other words, the person would have had to be intercepted before meeting the child. I agree with that as a proposition and am not criticising it. However, the wording in that Bill in section 3A(1)(b) which it was proposed to insert into the 1998 Act assumed that a meeting had, in fact, taken place. It refers to doing or intending to do anything which would constitute sexual exploitation, either during or after the meeting. I have tidied up that aspect somewhat.
One other substantive point I have tidied up is to insert the word “sexual” into the definition of “sexual exploitation” at paragraph (c). Otherwise, the offence of sexual exploitation could be deemed to be committed by a person who invited, induced or coerced a child to participate in any activity which is any type of offence under any enactment. I know that Fine Gael did not intend that. I have also made some minor drafting and presentational changes which there is no need for me to dwell on here.
I have read and heard some comments over the last few days to the effect that children have been left unprotected against the nefarious activities of sexual predators. Even leaving aside for a moment that section 6 of the 1993 Act is rarely, if ever, used to convict persons, there is no shortage of more serious offences which the Garda can use to charge persons. The Criminal Law Act 1997 restated the general law that any person who aids, abets, counsels or procures the commission of an indictable offence is liable to be indicted, tried and punished as a principal offender. The Sex Offenders Act, in its Schedule, makes it an offence to aid, abet, counsel, procure or incite the commission of an offence. The Schedule contains a comprehensive list of sexual offences against children including those created in the Criminal Law (Sexual Offences) Act 2006, which we passed into law last year.
In addition, the definition of “child pornography” in the Child Trafficking and Pornography Act 1998 includes any visual representation or description of, or information relating to, a child that indicates or implies that the child is available to be used for the purpose of sexual exploitation irrespective of how or through what medium the representation, description or information has been produced, transmitted or conveyed. This provision was included specifically to criminalise paedophile networks passing information to one another over the Internet, although it has much wider application about the availability of a child to be sexually abused. Transmitting that information would be deemed to be distributing child pornography and carries a maximum prison sentence of 14 years.
The 1998 Act also made it an offence to take, detain or restrict the personal liberty of a child for the purpose of his or her sexual exploitation, to use the child for such a purpose, to organise or, more particularly, knowingly facilitate such taking, detaining, restricting or use. This offence also carries a maximum prison sentence of 14 years.
As regards matters that arose at Leaders' Questions or on the Order of Business today, I have discussed with the Attorney General the point again raised, I believe, by Deputy Rabbitte - I was not in the House when it happened. There is no need in offences relating to children to constantly recite that an honest mistake is a defence in relation to legislation that this House is now passing. If one goes back to the CC case, it decided that one section of the 1935 Act was, because of its legislative history, only capable of being interpreted as excluding that defence, and therefore that it was inconsistent with the Constitution. Another section of that Act, which dealt with indecent assault, because it did not have that particular legislative history and although it was silent on that issue, was held by the Supreme Court to be compatible with the Constitution. Legislation enacted post the Constitution is always to be construed as a primary canon of construction, as consistent with the Constitution. I am not commenting on whether it applies everywhere, but to the extent that the defence of honest mistake is necessary in any particular case regarding a post-1937 statute, every such statute is to be construed on the basis that it has a constitutional meaning and is not to be construed unconstitutionally. If an Act post-1937 is silent on the issue of honest mistake and if the Supreme Court or any court approaching it decides that it is constitutionally necessary to impute a mens rea honest mistake defence, the court is obliged, as a matter of constitutional construction, to accord it to that statute. That was my understanding of the matter. I spoke to the Attorney General this evening and it is his understanding of it too. Therefore it is not incumbent on this House to constantly stamp every offence relating to a child with an honest mistake defence. If we start doing it we then raise implications in other places where we had not done it, such as selling cigarettes to children and the like, indicating that somehow we were making a differentiation. All of that could lead to complexity which is not there. Another point is that if we change the Constitution to permit all of this, then we will be able to provide by simple statute that where, in relation to a whole series of offences it might have been the case that honest mistake was to be available as a defence, that it should not be so in the future.
I will recite all the provisions in the Statute Book that protect children against sexual abuse and severely punish abusers. It is enough for me to say that the Garda authorities have advised me that current criminal law contains a major series of offences punishable by very severe penalties for any person who, aids, abets, counsels or procures or attempts to commit a sexual offence against a child, who organises the use of a child for such purpose or who distributes such information about a child whether by Internet, phone, text message or otherwise. A comprehensive protection mechanism exists, but in all frankness, the simple request to a child was only criminalised by this summary offence. That was the significance of section 6. It was the only case where a simple request to a child, without any other act which would amount in law to an attempt, was criminal. As the House will know, the law of attempt is slightly complicated. There have to be preparatory acts and matters must go beyond a certain point. It was doubtful in my mind as to whether a simple request would, of itself, amount to an attempt. For that reason I believe it is important to make the law very clear.
To sum up, this is a short Bill and essentially two issues are involved. I do not want to play down the importance of rectifying the regrettable omission in the 2006 Act and neither do I want to exaggerate the importance of a provision which, may seem significant, but which has not been used to convict any person over the last few years and probably beyond that. Not to bring forward this Bill would leave a gap in the law. It has also proved an opportunity to introduce into Irish law to a limited extent the offence of meeting or travelling to meet a child following sexual grooming and to make an amendment to the Child Pornography Act, to add a protection for children.
The Fine Gael Private Members' Bill was very helpful legislation. However, even its drafters would concede, I believe, that there are probably more complex provisions - they are currently being worked on in the Office of the Attorney General - relating to the substance of grooming, in other words engaging with a child and trying to create a relationship of confidence with him or her with a view to sexually exploiting the child, which will require extremely careful drafting. I do not doubt that the Fine Gael official who drafted the Private Members' Bill did not want to go down that road. Totally innocent people could be criminalised if the balance is not 100% right. A great deal of thought and research is needed to ensure we do not create a monster when trying to chase people who are monsters.
The Government intends to revisit the grooming issue with a more comprehensive statute. Given that Fine Gael's Private Members' Bill came up with two measures which are undoubtedly an improvement on the present law, it would have been wrong of us to reject it or to fail to give it a speedy passage. We have accelerated its passage into law by adopting its provisions as part of the Government Bill, rather than simply accepting it. No party in this House has a monopoly on caring about protecting children from sexual assault.
Brendan Howlin (Labour Party): That is true.
Micahel McDowell: No parent or politician has a differential approach to this matter based on other party political beliefs or philosophies. As all Members of the House share a common desire to protect children from crime of this nature, I have approached this issue by accepting the spirit of the Labour Party Bill and most of the substance of the Fine Gael Bill and introducing additional material which I consider necessary to address this issue. In such circumstances, I ask the House to adopt this Bill and to give it a Second Reading.
Jim O'Keeffe (Fine Gael): I am happy to support the Government's attempt to close the gap in the law relating to the soliciting and importuning of children for sexual purposes. Our colleagues in the Labour Party did a service to the House and the country last week when they pointed out a loophole that inadvertently resulted from emergency legislation introduced last year. It is important that we close the gap as soon as we can.
I am pleased that the Minister, Deputy McDowell, has decided to adopt Fine Gael's proposals to outlaw Internet grooming. I accept the minor drafting changes he has suggested. While I am keen to see these measures enacted into law, we should think twice about the notion of dealing with such important issues by means of emergency legislation. I would not like it to become a regular practice. If these important issues are not dealt with in a studied and considered manner, it is possible - if not probable or inevitable - that there will be a recurrence of the unfortunate consequences of the 2006 emergency legislation. Emergency legislation is not the best way to deal with important issues such as child protection.
Fine Gael has expressed its support for the introduction of child protection measures. It has made it clear, at the all-party committee and elsewhere, that it supports the introduction of a zone of absolute protection, the need for which has been highlighted by its party leader, Deputy Kenny. It has resisted the Government's attempts to lower the age of consent. The referendum on child protection issues sought by Fine Gael seems to have been lost among the broader child welfare issues which have arisen. It seems almost certain that the referendum on child protection cannot take place during the term of the current Government.
It is important to approach all these issues in a measured fashion. With all due respect to the Minister for Justice, Equality and Law Reform, I am not sure his approach to these issues could be considered measured. When last year's problem arose, he claimed there was no black hole in the law on statutory rape. While he was uttering such platitudes on national radio, the High Court was getting ready to let child rapists walk free under the huge gap in the law that had opened in the absence of preparation or contingency plans on the part of the Government. While the Government floundered, the Opposition spoke of the need to close the black hole I have mentioned. Rather than concentrating on how best to do that, the Minister, Deputy McDowell, continued in denial until the last minute, when he decided that a change had to be made.
The most recent Fine Gael Bill on child protection, which contains measures for dealing with Internet grooming, has had a happier fate than my previous Bill on the same issue. The Government has accepted the legislation on this occasion, whereas the last time I presented a Bill on child protection, it was leaked to the newspapers. We should all work in a measured way to achieve the best outcome in the area of child protection. Nobody should claim to have a monopoly of care in this regard. All of us should be prepared to be judged on our records. A harsh judgment may be delivered on the Government and particularly the Minister, Deputy McDowell, based on their record.
Last week, Deputy Rabbitte highlighted the removal of certain provisions relating to the soliciting or importuning of children for sexual purposes. While the Minister can argue that many people looked at the Bill in question, he is responsible for ensuring that legislation is constitutionally and legally sound. He can avail of his experience in this area, the support of the Department of Justice, Equality and Law Reform and the advice of the many staff in the Office of the Attorney General. We are about to close this gap, which was allowed to develop even though such assistance was available.
When the Minister spoke about this gap, he made a highly insensitive reference to the soliciting or importuning of a child for sexual purpose as “a minor offence”. I presume he was speaking in legal terms about the fact that the offence in question was a summary offence in the District Court. He should think of the children who have been subject to approaches from predatory adults and the parents whose children have been in such situations. Any suggestion that such a predatory approach could be referred to as “a minor offence” would be highly insensitive. I am glad we are taking the opportunity in this legislation to ensure that the offences which are being reinstated can be dealt with on indictment, with serious consequences in terms of the length of imprisonment to be served.
I would like to speak about the Internet grooming element of the Bill. I am quite familiar with this section of the Bill because I wrote it approximately three years ago. Insufficient attention has been paid to the problem of Internet grooming. The use of the Internet, which has infiltrated youth culture in particular, has not been dealt with in legislation. The obvious evidence of serious Internet grooming has been ignored. It is quite clear that Internet grooming has not been a criminal offence. I have always believed that predatory adults were using the Internet for the purpose of luring children into a false sense of security with their only objective being to arrange meetings with children for the purpose of sexual exploitation. While it is not known how widespread this practice is, the article in last Sunday's The Sunday Tribune brought the issue home. The author of the article, Mick McCaffrey, had been released after being arrested and was able to devote his talents to an investigative story. The information he gleaned and the responses to the approaches he made are quite appalling to anybody and opened an appalling vista of the kind of activity that is going on in our society. It brings home to us the absolute need to make this a serious criminal offence in order to try and stop these people engaging in such heinous activity.
The Minister referred to a precedent in UK legislation and I agree that one should not need to reinvent the wheel. I plead guilty to looking at the legislation and policies in other countries relating to all aspects of the criminal justice system. We have much to learn about policies on criminal justice and on legislation from tried and tested methods in other countries. The Fine Gael Bill drew largely on the UK legislation. Such legislation works in the United Kingdom and there is no reason such legislation should not work here. I do not suggest it is the complete answer as there are other aspects of Internet grooming which need to be dealt with but this is one clear and sure way of bringing to justice those who are involved in such activity.
I am pleased the Minister has taken the Fine Gael Bill on board. I had been told to expect a copy of the emergency legislation from the Minister yesterday and I made some inquiries. I did not receive any telephone calls and I did not see the draft legislation until this morning. The Minister might have considered sending a text to say he was working on it and that he was adopting our proposals. However, it is better late than never and the legislation is now before the House. We should deal with it in as sensible a way as possible.
When I saw that the Minister had taken the Fine Gael proposal on board and adopted it virtually line for line and word for word, I decided to withdraw the Private Member's Bill as I did not see any point in duplication. I also was aware that the Minister could not move his Bill tonight while my Bill was before the House. There is a precedent in this House that there cannot be a duplication of legislation. I discovered that the Minister would have required a special motion to move his Bill tonight because it would have been duplicitous of the Fine Gael Bill. This was another reason for clearing the Fine Gael Bill off the stocks since it was to be incorporated into the Government Bill and this would ensure that the provisions would be passed. I am well aware that legislation from the Opposition benches generally has very little chance of being passed and I was particularly keen to ensure that with regard to such an important area of child protection there was law on this matter.
It is important for the Government to clarify its position with regard to the clear decision on the referendum made by the all-party committee on child protection. The Fine Gael leader, Deputy Kenny, has made it clear that we want to see the legislation on child protection and the necessary referendum to underpin that legislation in place as soon as possible. I now have a real concern that because the welfare issues as enunciated by the Taoiseach were thrown into the mix the referendum on child protection will not be held in the near future. The Government appears to have made up its mind that it would not run the referendum on child protection on its own. For that reason, those of us in Opposition are forced to raise questions on the broader issues. The issues relating to child protection had been carefully examined but perhaps the safeguards to be put in place on the issue of soft information had not been sufficiently examined. In my letter to the Minister of State, Deputy Brian Lenihan, I stated the aspect that needed to be clarified was how this was to be dealt with in legislation.
The referendum was ready to run but it now seems that it will founder because of the add-on aspects regarding child welfare. We will end up with no referendum and no legislation on that issue in the short term, during the term of this Government. I am not happy with this outcome. I want to get to the heart of the issue to ensure the child protection measures, in so far as we can, are on the Statute Book and are constitutionally sound. This proposed legislation is a related matter in its aspect of child protection.
I am happy to support these measures. I am not happy that they are all being passed in one sitting. Neither the Minister nor the Government has given any clear explanation why there is not a pause in order to ensure the legislation is absolutely right. I had not seen the measures relating to importuning and soliciting until this morning. I had the opportunity to consider the other issues fully three years ago. I wish to put down a marker. I support the reinstatement and the extension of the offences relating to importuning and soliciting. However, Committee Stage of the Bill could be taken tomorrow or Thursday and people would have an opportunity of careful consideration. It is vitally important that whatever legislation is put in place now will stand up to the rigours of questioning before the courts. The Minister knows better than most and he has a lot more experience than I have of the Central Criminal Court. He knows the abilities of the lawyers who will test not just the Bill and its sections but every word and phrase in it.
I refer to an article by Fergus Finlay on this issue in today's Irish Examiner. He quoted the Minister on the Criminal Law (Sexual Offences) Act 2006 - the emergency legislation of last year - as stating: “When the dust settles and the frenzy is over it will be seen that my colleagues in Government, myself and the Attorney General, have acted competently, honestly, truthfully and with the best interests of the children in mind.” Yet, here we are back again with further emergency legislation. I wonder whether the Minister still feels that particular sentence stands up.
Having said all that, I am in favour of the Bill. Let us get on and deal with it as effectively as we can.
Brendan Howlin: The offence we are seeking to re-enact this evening has had a curious legislative history that I had the opportunity to re-examine today. It seems, when one reads over the enactments, to have been characterised by some fundamental errors as to its purpose. It is, however, a serious offence - the offence of soliciting or importuning a child for sex. It is an offence which I do not believe is a minor one, and one which I believe every citizen would regard to be a serious matter.
When I say there were fundamental errors over time in its purpose, I do not expect to hold the current Minister for Justice, Equality and Law Reform responsible for the errors of his predecessors. However, he has a responsibility to account for the current state of affairs. To be fair, in his opening address, he very fairly accepted responsibility, although pointing to everybody else who could have shared it. However, the onus and responsibility lies with the Minister for Justice, Equality and Law Reform, who brings legislation before the House.
It is worth noting that the legislative history was characterised by four guillotined debates, of which tonight's is but the latest. As a result, the section in question was never adequately scrutinised or debated by this House. The offence dates back to 1993, when the then Minister, Mrs. Máire Geoghegan-Quinn, introduced the Criminal Justice (Sexual Offences) Act of that year. That Act was primarily concerned, in agreement with the Labour Party, with abolishing the offences which criminalised homosexual behaviour between consenting adults, but, consequentially, amendments were required to deal with prostitution and soliciting.
The then Minister, Mrs. Geoghegan-Quinn, speaking in the debate on 23 June 1993, stated:
I have ... taken the opportunity in the Bill to revise and update the law in relation to prostitution and related offences.
Section 6 creates a new offence of soliciting or importuning for purposes of the commission of a sexual offence. The offences comprehended by the section are those under section 3, 4 or 5 of this Bill and sections 1 or 2 of the Criminal Law (Amendment) Act 1935. This section will replace section 1(1) of the Vagrancy Act 1898, under which it was an offence for a male person in any public place to persistently solicit or importune for immoral purposes.
Section 6 will protect young persons and mentally impaired persons from being solicited or importuned for sexual purposes, whether heterosexual or homosexual, and whether the person soliciting or importuning is a male or female. It does not matter whether the soliciting or importuning takes place in a public place or not as the type of offence that could be committed could well be committed in a private residence. We are all aware that some child sexual abuse is committed by neighbours or friends of the parents of children who are abused and quite often the potential abuser will solicit or importune the child in his own home or even in the child's home.
It was clear from Mrs. Geoghegan-Quinn's speech that she believed section 6 had nothing to do with prostitution and that the offence was broader in its scope. Hence the reference she made to neighbours and friends. However, for such a serious offence, the penalties, as the Minister rightly stated, were minor and the offence was summary. It is not as if it was a minor offence like loitering. This was a mistake.
There was no clarity on the thinking behind the section because it was not reached due to the guillotine. In any event, the new offence was prosecuted. In one year, 2000, there were 55 prosecutions and 34 convictions - that year is as far back as the record can go. Some 40 of those prosecutions were in Dublin, with 15 in the south east, and, interestingly, there were no prosecutions in the other regions. Then, in 2001, an amendment to the 1993 Act was made by section 250 of the Children Act. This amendment repeated, more or less exactly, the words of the 1993 Act introduced by Mrs. Geoghegan-Quinn, but with the insertion of one new phrase, “(whether or not for the purposes of prostitution)”. The offence would now read that “a person who solicits or importunes another person (whether or not for the purposes of prostitution) for the purposes of the commission of an act which would constitute an offence” is guilty of an offence. It seems the amendment was designed to make it crystal clear what was intended in 1993, namely, that the offence had nothing to do with prostitution and everything to do with protecting children against exploitation.
I read the explanatory note that accompanied the Children Act 2001 but, bizarrely, it stated the exact opposite. The explanatory noted stated: “Section 250 proposes a new offence which provides a higher penalty for soliciting or importuning a child for the purpose of prostitution”. This is bizarre. In fact, the section did not create any new offence and merely restated the 1993 offence. Again, the section was not debated or referred to on any Second Stage or Committee Stage debate, and the debate itself was guillotined. If the Minister has access to the briefing notes prepared for that debate, he should explain to the House whether the draftsman was correct or whether the author of the explanatory memorandum was correct, and what was intended.
Whatever the reason for the confusion, the enactment of the amending legislation seems to have coincided with a dramatic reduction in prosecutions for the offence, a point on which the Minister has taken many opportunities in the past few days to present this as being a minor offence. I do not know why, but since the enactment of the Children Act 2001 this offence seems to have fallen away. Part 12 of the Children Act, which includes section 250, came into operation on 1 May 2002. The Garda annual reports show that from 55 prosecutions the previous year, there were just two prosecutions in 2001, none in 2002, two in 2003, none in 2004 and none in 2005, the last year for which we have published data. There is no explanation in the reports as to why there was a sudden fall off in prosecutions from more than 50 cases a year to virtually none. Why did this happen? It is hardly as if the practice ceased or the behaviour stopped.
As I have said, the main thrust of that amendment was to broaden the offence by making it clear that the soliciting and importuning did not have to be connected in any way. This was the intention in Ms Geoghegan Quinn's 1993 Act but the later amendment made the position crystal clear. In reality, however, that clarification or expansion never had the effect of leading to more prosecutions. In fact, since the 2001 Act, prosecutions under this offence have largely dried up, as the Minister pointed out. There may have been a change in either policing or prosecution policy following the 2001 amendment. If so, who made that policy decision and who had authority to issue a directive that an offence should not be prosecuted? Perhaps it is simply a matter of recording information differently but I would be interested to hear the view of the Minister as to what he regards as a serious enough offence to require the introduction of emergency legislation to reinstate, and why, having had a record of prosecution from its initial enactment in 1993, prosecutions should dry up in recent times.
We then had the third guillotined debate, which was on the emergency legislation introduced last year. When that legislation was brought to the House, there was an interesting debate, which I reread today. It is enlightening to reread it in the light of yet another emergency enactment to protect children being presented to the House. As I said during the debate last year, from the time the Supreme Court delivered its original judgment the Labour Party position was crystal clear, namely that temporary legislation should be introduced to close the loophole caused by the Supreme Court decision relating to the 1935 Act. Unfortunately, the Government rejected the Labour Party's careful, staged and reasonable proposition and the Minister for Justice, Equality and Law Reform introduced a single measure which went well beyond the requirement to close the loophole in the 1935 Act. I said at the time that the Minister was introducing a permanent measure without a sunset clause and if that approach was to be taken it must be with great care. In several fundamental areas the Bill he introduced fell far short of that standard.
The Minister said he had been thinking overnight on the subject and introduced amendments accordingly. That is no way to introduce fundamental law, particularly law that protects our children. We face emergency legislation yet again because we never had the time to properly scrutinise the measures involved. The Minister is correct to say we need a consolidation Act to reinstate in a joined up, clear way all the enactments to protect children against sexual deviancy and predation. It should be done as a matter of urgency and I am aware work is under way in the Minister's Department in that regard.
I will not rehearse the full debate because I do not have time but much of it bears repeating tonight. I said that rushed law was normally flawed, if not outright bad law. I said the Bill attempting to address the requirements of the constitutional decision of the Supreme Court was flawed and that the Minister was introducing fundamental laws into this House which he would later regret. We have reached a point of regret tonight.
I will deal with an issue raised earlier in the day by the leader of the Labour Party, Deputy Rabbitte, which was addressed in the Minister's opening remarks. I listened to his detailed legal response to a very important point but I have not had time to take advices on the matter or to make sure the Minister is right. We will not have time to reflect on it during the course of the debate in the House and that is not a good way to bring certainty to such matters. The leader of the Labour Party gave an account of what happened last year, when the Supreme Court judgment struck down as unconstitutional an offence under the 1935 legislation prohibiting unlawful carnal knowledge of a child. The offence, as the House will recall, was struck down because it concerned absolute liability and did not allow a defendant the defence of honest mistake. The fact that a defendant believed a child was over age was irrelevant to that offence. The Supreme Court held that, in the context of serious offences involving moral blame, there had to be a defence for a person in that situation. I will not repeat everything the leader of the Labour Party said but it is clearly on the record.
The Minister is a learned counsel and I am not. I ask him to correct me if I misheard but he said the 1935 Act was constitutionally flawed because it predated the Constitution and enactments subsequent to the passing of our Constitution were deemed to have constitutional effect. The honest mistake provision would be applied automatically to the courts and did not need to be recited directly in the legislation. Is that correct?
Michael McDowell: It is more or less correct, but the Deputy oversimplifies the matter.
Brendan Howlin: I may oversimplify the matter but we need to get it clear before Committee Stage because we are expected to draft amendments to the Bill. I am advised that defences are put into Acts which create offences not just because they are required by the Constitution but so that we in this House, the elected Members of the Oireachtas, can define the substance of those defences, instead of leaving the courts to make determinations without our guidance. If the courts are obliged to read a defence of honest mistake into this Bill, as the Minister indicated to the House, on whom will the burden of proof lie? Will the prosecution have to prove beyond reasonable doubt that the defendant was aware that a child was under age or will it be for the defendant to prove on the balance of probability that he was not? If we legislate on the question we can specify what the rule should be. If we do not we leave it open to individual judges to make the determination.
In the absence of legislation putting the burden on the defendant, it is open to the courts to decide that the absence of honest mistake must be proved by the prosecution, rather than the reverse having to be proved by the defence. If the courts are required to rule on the issue rather than the Legislature, will the defence be one of honest mistake or one of honest and reasonable mistake, which we could determine? Will it be enough for a defendant to be honestly mistaken about a child's age or will he have to show that, in all the circumstances, it was reasonable to make that mistake? These are issues which will bedevil prosecutions under tonight's Bill if we do not take it upon ourselves to deal with the issue in the legislation. I would have liked more time to take better and longer advices on these matters, rather than having to respond to the Minister's speech on Second Stage without even having left the Chamber.
These are important issues which we must get right. I reject the Minister's claim, “Leaving aside for a moment that section 6 of the 1993 Act is rarely, if ever, used to convict persons, there is no shortage of more serious offences which the Garda can use to charge persons”. Such offences do not exist for certain types of crime. For example, there is none for the man who hangs around outside a public lavatory or a school and approaches a child and importunes the child for sex. Unless a sexual act is committed, Internet-related and other law does not come into effect. We need this serious offence as a stand alone offence on our Statute Book. The Minister must agree with that or we would not be in the House tonight. It would be a catastrophe if, on the fourth attempt to deal with this matter, we made another mistake in a guillotined debate and the case was made in court that the burden of proof rested not with the defendant but with the prosecution.
We asked that the legal advices from the Attorney General be presented to us in advance of the debate but that did not happen. We have had to absorb the Attorney General's response to the Tánaiste, and that of his own legal expert advisers, but those two authorities were wrong last year. They were wrong on another serious matter, which I will not deal with on Second Stage but will on Committee Stage, namely the knocking down of the offence of abuse of a minor. That was one of the main offences used to prosecute offenders connected with the Ferns Report. God knows that, given my geographical location, I am familiar with those offences. Gross indecency against a minor under the age of 15 was, I believe inadvertently, knocked down last year. The Minister originally said that was not the case, then that it was and, more recently, that he had intended to knock it down because it was not gender neutral. However, we need that offence and hope to have time on Committee Stage to discuss it.
These are important issues and there is a responsibility on us to get it right. The public will not countenance another cock-up relating to the protection these Houses put in place for vulnerable and innocent children. I regret we will have inadequate time to tease out the issue satisfactorily. I greatly regret that we may be obliged to revisit these issues and engage in a more in-depth debate on them when further loopholes are identified.
Dan Boyle (Green Party): I want to share time with Deputies Ó Snodaigh, Connolly and Catherine Murphy. The Tánaiste and Minister for Justice, Equality and Law Reform, in opening today's debate, sought to construct a big tent as regards the fiasco that is this legislation. He welcomed the draft legislation produced by the Labour Party. He incorporated the Private Members' Bill produced by Fine Gael, although not without questioning the ability of the draftsman to produce a correct Bill. He sought solace from the fact that officers of the State who appeared before committees of the Oireachtas failed to spot the omission he detected, and then sought to apportion responsibility for the legislation and the omission collectively on this House.
He called for consolidated legislation in this area, with which there is no disagreement on this side of the House. However, it is the Minister's role in producing legislation in the manner he has that has given rise to the problem we are now facing, because he is a prince of “ad hocery”. We are going through the motions to repair the damage of emergency legislation. What makes this Bill even more poignant is its subject matter and the fact it deals with the protection of children in circumstances where they are most vulnerable and where most damage can be inflicted upon them. This does not reflect well on this House. It reflects less well on the manner in which we are expected to do our business when legislation is presented to us.
This Minister, more than most in this Government, has been guilty of presenting legislation to the House in a haphazard way. Rather than trying to seek collective responsibility for the legislative mess we find ourselves in, it would be better if the Government took that collective responsibility. That, after all, is its constitutional responsibility.
This brings us no closer to the fact we have a loophole to address. There are grey areas to be filled in. The Bill is being taken on trust in circumstances where we have accepted similar legislation on trust from the same Minister and brought ourselves to exactly the same situation. I share the fear expressed by Deputy Howlin in his contribution that because we are dealing with a Bill the House has just been presented with, the way the debate has been structured and the lack of subsequent scrutiny it will receive as well as the Minister's track record, there is no guarantee we will not have to revisit it. This will probably not be in the life of the 29th Dáil, but the whole area will almost certainly have to be addressed again within a few months. In the event, perhaps we may then start to consolidate this entire important area of legislation.
We should go beyond this House. The Green Party, for example, supports the Barnardos call for a national child protection summit. This is a debate that requires the full involvement of civil society. We cannot go hopping from one crisis to another in this House in trying to produce legislation in this important area. We can no longer produce legislation on the basis of the most recent newspaper headline. We can no longer produce legislation on the basis of trying to deal with the most pertinent political crisis. We have a more considered role to undertake in this House. We have to look to the long term and put in place, after proper consideration, legislation that will survive long after us.
It is ironic that last week in the House we were dealing with the Statute Law Revision Bill 2007, which meant asking whether we should keep legislation dating from the 13th century. Here we are in the 29th Dáil trying to repair Bills that we cannot get right over a six-month interval. If anything testifies to the way this House is not working effectively, and how the Government is failing in its role to produce a proper legislative programme, this in particular speaks volumes.
The Bill will not receive any objection from the Green Party. It is obvious the loopholes need to be filled. Can we be confident, however, that the issue is being dealt with in its entirety? Even though the House is obliged to the Labour Party and Deputy Rabbitte for pointing out this omission, it is something that should have been detected during the legislative process and talked about on Second and subsequent stages.
I was taken by Deputy Howlin's contribution when he outlined the history of this legislation and talked about how the previous guillotines had worked. Guillotines are very pernicious instruments. The Government decides and votes through on a majority that time is not available to deal with a Bill. This means the elements that have not been examined, debated or voted upon in any proper sense in the House, become part of the Statute Book. Omissions that arise as a result eventually become obvious and glaring. I hope that if any lesson is capable of being learned by this Minister and Government, it is that we will not return to this situation again. I suspect that in the 29th Dáil the amount of emergency legislation probably rates as an historical high, outside the state of emergency during the Second World War. I would urge that an analysis be carried out in this regard. It is a damning indictment of this Administration's inability to govern that in peace time, given such a prosperous economic period and the stability of governance, it has been forced to come back to this House with such a large amount of emergency legislation. This is illustrated all the more in an issue of this type where the protection of our children is paramount. While the Government will get the support it needs, it does not enjoy the House's confidence that it is dealing adequately with the issue.
Aengus Ó Snodaigh (Sinn Fein): Last June I warned the Government that crisis-led legislation ultimately risked creating more loopholes than it closed. That is the case today and it is inexcusable because there was no need for any of this to have been crisis-led. In 1990, when the Law Reform Commission first recommended the law on statutory rape be changed, this Government and successive Administrations, including the Fine Gael-Labour Party-Democratic Left coalition, were aware of a possible clash with the 1937 Constitution. However, they all failed to act sensibly on this knowledge. Hence, it was only in June 2006 following the release of a convicted child sex offender that action was taken to amend the legislation accordingly. At the time we facilitated passage of the emergency Criminal Law (Sexual Offences) Act 2006. In doing so we called on the Government to use the period immediately following its passage to review, debate and introduce proposals for a comprehensive and coherent code of law covering offences against children that is free from anomalies and loopholes. It may be difficult to cover all angles, but that is part of our job in this House, and this is one initiative on which I would welcome legislation for once from this Minister, who is a serial legislator.
Speaking during that crisis last summer and with reference to his proposed emergency legislation, the Minister said: “I am confident that when the dust settles and the frenzy stops I will be seen to have acted with good authority and with competence, honesty and courage”. I am not questioning the Minister's honesty in this but competence is lacking as may be seen from the legislation before us. The dust has settled, the frenzy continues because of his incompetence and that has led to new loopholes being clearly visible and further emergency legislation is required. A range of issues which should have been addressed by legislation subsequent to last summer's Act remains outstanding, with no evidence that this Government intends to address them at all. I shall return to those.
However, I wish to make a few points on the limited content of the Bill before the House. According to its explanatory memorandum, the purpose of the Bill is to add to the offences provided for in last summer's emergency legislation the offence of soliciting or importuning a child or a person who is mentally impaired for the purpose of committing a sexual offence. It also broadens the definition of “sexual exploitation” in the Child Trafficking and Pornography Act 1998 by including references to inviting, inducing and coercing a child “to participate in or observe any activity of a sexual or indecent nature”. The Bill also introduces the offence of grooming. These developments are welcome in principle.
Like other parties in the House, Sinn Féin will facilitate the passage of this emergency legislation by not opposing it. The Government needs to ensure that the technical outworkings of the Bill will not create further loopholes or anomalies and that this Bill is constitutionally sound. Ultimately, the ad hoc nature of the developments in this area is unacceptable and is not in the interests of children.
The scale, extent and impact of child sexual abuse has been uncovered in recent reports. Many cases have been reported on, after years of denial when these issues were kept in the dark. Child sexual abuse often has devastating lifelong consequences for its victims. Under-reporting is a reality in this area, as it is with other crimes of sexual violence. Very few of the small number of cases which reach the courts result in convictions and appropriate measures. The health and counselling needs of victims are often not met, sometimes for resource or legal reasons, such as the requirement for parental consent. Traumatic court procedures can again make victims of children who have already suffered the worst forms of abuse. Uniform responses are not guaranteed under the reporting procedures involving the Garda and the HSE. Adequate resources have not been allocated for the Garda vetting of applicants who seek to work or volunteer with children.
It is not sufficient to create one or two additional offences - many matters need to be addressed urgently. While some of them will require underpinning legislation, others will not. On behalf of Sinn Féin, I ask the Government to introduce legislation to place on a statutory footing the recommendations of Children First: National Guidelines for the Protection And Welfare of Children. The Government should ensure that the guidelines are resourced and implemented fully.
I call on the Government to protect vulnerable children during court proceedings, for example by appointing court commissioners to take evidence. We should follow the lead of the authorities in Scotland by preventing the cross-examination of vulnerable children by aggressive counsel. The issues I have mentioned, as well as many other outstanding problems, need to be addressed if children are to be protected.
P Connolly (Independent): I approach this Bill with doubts about whether rushed legislation is safe. The full horror of the heinous practice of sexual predators grooming young people over the Internet has emerged into the public consciousness over recent weeks. The phenomenon of Internet grooming, whereby paedophiles use the Internet to cultivate relationships with children with the aim of making contact with and abusing them, must be made illegal. We need to enact clear, coherent and effective laws which adequately respond to the issues of sexual abuse and, in particular, paedophilic use of the Internet. Legislation that makes Internet grooming a criminal offence, and nails the offender in the specific act of grooming prior to an off-line meeting taking place, is long overdue.
For several years, paedophiles have been using the Internet to contact children. They often pose as teenagers and initially make contact in chatrooms. They engage in e-mail correspondence with young people before attempting to arrange meetings. The problem of grooming has continued to escalate, even though children are being told each day about the risks they face on-line. I do not think education alone will stop children from trusting strangers they meet on-line. No amount of parental control or filtering software will stop children from giving their mobile telephone numbers, or home addresses, to people who have carefully groomed them over a long period. The legislation before the House is vital if we are to deter predators from engaging in activity of this nature - if we are to catch them in their tracks on-line before they commit sexual offences. I hope that evidence of abusive conversations or on-line solicitations will be sufficient to warrant convictions.
This problem is too serious to be the subject of political point-scoring or to make cheap political capital from it. I am delighted that this Bill will not be opposed. I am happy to note the Minister's intention of incorporating in this legislation the spirit of the Labour Party's Bill and the substance of Fine Gael's Bill. He was accused this morning of cogging, but he is cogging for right, admirable and useful reasons.
The issue of the protection of children has long been approached in a half-hearted manner. The Garda central vetting unit is able to check the backgrounds of people who work in the health service, but it lacks the capacity to perform similar checks on people who work with children in the voluntary sector. Voluntary organisations have to rely solely on Garda checks of criminal records. Such checks fail to take cognisance of the fact that just one in ten abusers has a criminal record. The differences between the child protection systems on either side of the Border create loopholes which can be exploited by child sexual abusers. In some cases, prospective abusers can work as ancillary workers in the same buildings as children. They will not have been the subject of Garda checks because they are not deemed to be working with children. I know of cases of this happening in schools. We need to make progress in that regard.
The anomalies and inconsistencies in the vetting procedures of both jurisdictions could be ironed out by the creation of a centralised system, such as a vetting clearing house. I have called previously for the establishment of such a facility, which would impose more rigorous standards in the background checks undertaken on prospective employees. The protection of our young people should be the over-riding priority. While many young people have mastered the use of technology, they remain vulnerable to insidious seduction by abusers.
Catherine Murphy (Independent): It is valid to question whether we would be here tonight discussing this Bill if a guillotine had not been imposed last year on the legislation introduced in this area. On that occasion, we were not given enough time to tease out the various measures proposed. The Government is pursuing a piecemeal approach that is reactive rather than proactive. It is a defective way of making legislation. The Minister, Deputy McDowell, has accepted that the lack of consolidating legislation in this area is not helpful.
I regard this Bill as important. If we do not provide for a deterrent targeted at initial access, more serious offences will occur. The crime that will be committed in such circumstances will be a greater one. It is not enough to put laws on the Statute Book without considering how they can be enforced. An article in last weekend's edition of The Sunday Tribune highlighted in a graphic way the fact that behaviour of this nature is anonymous and difficult to police.
We need to reflect on the significant difference between the way many first approaches are made to children nowadays and the way this was done in the past. Most approaches were made personally in previous times, but now many victims are not contacted personally. Forms of technology such as text messages, chatrooms and the Internet generally are now used as first points of contact with children. That young people are often more competent than their parents in the use of such technologies makes them even more vulnerable. The word “grooming”, for example, meant something completely different 20 years ago. It would have been almost strange to describe it as something that would become an offence at some future stage.
It is important to understand the means by which crimes are committed. A lack of consolidated legislation has led to the problem we are trying to fix today. Our understanding of the use and misuse of technology, as it develops, will inform us about what is needed. I regret that we do not have enough time to consider this and other aspects of the legislation. Most people want to see more gardaí on the streets. It is clear that policing the Internet involves ensuring we have expert knowledge of the criminal ways in which technology can be used.
It is not enough to pass legislation - we must consider its end use. I support Deputy Boyle's proposal that we adopt the suggestion made by Barnardo's to organise a child summit. We need a more comprehensive approach. It is not just about legislation - it is about providing the resources to ensure that it is applied. We need to be ahead of the game in terms of understanding the use of technology. We should not be penny-pinching in providing the resources to deal with the problems which ensue when offences are committed.
Peter Power (Fianna Fail): I welcome the opportunity to speak on the Criminal Law (Sexual Offences) (Amendment) Bill 2007. Before speaking on the substantive Bill I wish to make a number of preliminary comments.
I do not believe there is such a thing as a “minor” offence, as has been suggested, when it comes to the sexual abuse of children. During the deliberations of the Joint Oireachtas Committee on Child Protection it was clear that the physical act of statutory rape or sexual abuse is almost always preceded by a period, sometimes a long period, of sexual grooming. While no physical act may take place, this has the potential to inflict life-long psychological damage on the child. The sexual abuse of a child is a depraved act. The preparation, solicitation and importuning of a child is equally depraved. It shows a level of deviousness and planning and demonstrates real malice aforethought. For this reason I am pleased the proposed legislation provides that the offence of solicitation and importuning will not be just a summary but also an indictable offence.
It is clear from events in the past twelve months, from the legislation that has been brought forward and from the deliberations of the joint committee, that the time has come for a complete restatement of the law relating to sexual offences against children and child protection in general in a new statute along the lines proposed by the UK legislation. A criminal law codification committee is currently working on this subject.
It is time to consider the increasing sexualisation of children which makes them sexual objects and increases the likelihood of predation. We must look at the causes of the increased levels of predation in society. There is something fundamentally wrong in society when a 14-year old boy accesses sexually explicit websites about gay sex. This is particularly disturbing and it raises questions more fundamental than the legislation which the House is debating tonight. The excellent journalism in the report by Una Mullally and Mick McCaffrey in The Sunday Tribune article exposed something terribly sad about our society. This is a society in which children, instead of reading “Roy of the Rovers” or Enid Blyton books or going out to play football with their friends in a safe and secure environment are instead at 14 years of age accessing gay sex sites.
This is a terrible commentary on society not just in Ireland but across the globe. As a global society we have presided over the increasingly early sexualisation of our young people so that they cannot enjoy the innocence of childhood in a carefree and pressure-free world. There is hardly a parent in the country who does not lament the early sexualisation of their children through television, magazines, the Internet, mobile phones, advertising, marketing and - increasingly and in a sinister development - through toys for very young children.
Today's pop culture, media and information society have made sexuality so pervasive and ubiquitous that it encourages young children and particularly young girls to see themselves as mere sexual objects without dignity. This is the society we have created and the sort of mess into which we have got ourselves. It has created and encouraged the type of offences for which we must now legislate. We must examine the society we have created. I recognise it may be difficult, if not impossible, to legislate in this area but surely those in authority, people in the media, people who control what our children read and see and what toys they play with, need to examine the effect which their publications are having on our young people. Is it right or proper that, in the pursuit of sales and profit, some of our newspapers openly advertise gay sex chat lines or any type of sex chat lines which are easily accessible and available to children? Is it not possible to exercise some moral judgment and to decide that this information will not be made freely available to 14-year-old children which inevitably encourages them to access sites such as Gaydar.ie, the subject of much comment in recent times?
I know that I am expressing a deep frustration felt by parents throughout our country, the same parents who protested outside the gates of Leinster House nine months ago about the lowering of standards of child protection as a result of the Supreme Court decision in the CC case. This case prompted the legislation which gave rise to the anomaly we are correcting today. The CC case also gave rise to the establishment of the Joint Oireachtas Committee on Child Protection which spent six months examining the issue of child protection and sexual offences in general. It was clear from the committee's deliberations that a full restatement of our law on child protection and sexual offences against children was needed. This was the core and first recommendation in the committee's report. I invite the Minister to make a commitment to this recommendation in his reply. The case for full restatement of our child protection could not be clearer.
Some of the issues which need to be addressed go beyond the technical correction being introduced tonight. There must be a full restatement of the law in order to keep pace with the increasing levels of predation and the sophisticated and subtle means in which sexual predation against children is now carried out. It is clear that the sentences are not severe enough and neither are they being imposed by the courts which increasingly take the side of the criminal and the predator. The scales of justice are tilted in favour of the accused rather than the child victim or the victim of general crime and they need to be recalibrated.
The committee has identified a clear need for a new offence of child sexual abuse and the need for training and education of gardaí and others in child psychology. The entire body of rules of evidence needs to be reformed with regard to the cross-examination of child witnesses, the giving of evidence behind a screen, video-link evidence, the videoing of witness statements from children. The law relating to sexual offenders and the internationalisation of sexual predation against young children also needs to be considered and updated on a regular basis.
Two further major issues also need to be addressed. The vetting of adults who have unsupervised or limited access to children needs to be fully addressed. The joint committee's report contains numerous and helpful suggestions in this area. Second, legislation is required to govern the area of soft information. I welcome the proposed referendum which would give the Oireachtas constitutional authority to legislate in this area. A full and comprehensive statutory scheme needs to be formulated.
The proposed legislation will close off the anomaly created by the 2006 Act. While it is important to have these offences reinstated and anomalies corrected, despite adverse media comment, I have no doubt there were other offences, including common law offences of aiding, abetting, counselling, procurement and incitement, which could have been used to deal with recent offences highlighted in the media.
I have a concern with regard to section 2(3)(b) which provides that a person guilty of an offence under this Act will be liable on conviction to a prison sentence of less than five years. This is far too short a time. The Child Trafficking and Pornography Act 1998, which makes the distribution of child pornography illegal, carries a maximum sentence of 14 years. I see very little difference between both offences. Solicitation is connected to grooming of young children by groups of men. The act of planning and preparation and solicitation can be just as sinister and depraved as the offence itself. If somebody has been conclusively proven to be planning, preparing, soliciting, importuning and grooming children for the most depraved acts, are we seriously suggesting that, with good behaviour, they should be let out on the streets after four years? It is regrettable that the depravity to which some individuals are prepared to stoop is only matched by their imagination and a sentence of less than five years is surely not sufficient in this area.
While it may be a discussion for another day I am deeply concerned that the courts are not handing down more severe sentences in the area of sexual abuse in general. I have raised this point in the House before. A premeditated and violent rape or sexual act, be it against an adult woman or a child, should carry a minimum sentence of 15 years without remission. The sort of sentences being handed down for premeditated rape, which are of eight, nine and ten years, fall far short of the level of protection for our children and adult women which the courts ought to be providing. I am reflecting a view which I believe is held strongly by people, namely, that the short, increasingly lenient sentences which the courts are handing down, particularly in rape cases, is a matter that needs to be addressed. I invite the Minister, who has not been shy in pointing out to the Judiciary where it is falling down in this area, to again take up this important matter. It sends out certain messages to society generally that the abuse of our children and women by sexual predators is not being dealt with in the most severe way by the courts and the Judiciary.
I commend the Bill to the House.
Michael McDowell: I thank Deputies for their contribution to this debate. I will begin by referring to the contribution of Deputy Peter Power, which was thoughtful and which surveyed recent events in a fair-minded and reasonable way. I agree with him that this area needs to be restated comprehensively. I will ask that the criminal law codification committee takes this as its first task. It is not good enough that our law on sexual crime is scattered over so many statutes that keeping them all in synch poses a significant difficulty. The attempt to find out what is the law and trying to work out exactly how one Act interacts with another Act have become difficult tasks.
Deputy Peter Power has the unique experience of having chaired an all-party committee on sexual offences in recent times. The central theme of that committee was that this process of codification should be done. Even though we are somewhat overhung by the uncertainties in regard to the zone of absolute protection, it seems the criminal law codification process could get going, notwithstanding that this issue has not yet been decided on finally. Bearing in mind there is an all-party consensus to create an absolute zone of protection, the committee should proceed to prepare a draft chapter of a code in this area which would consolidate all sexual offences, both in regard to adults and minors, on the assumption that these Houses and the people will reinstate a zone of absolute protection in the proximate future. That would be a good idea.
It is noteworthy that, as Deputy Power said, the exploitation of young people is a very complex issue and that sexualisation of young people is now also a very complex issue, and very prevalent. I do not know whether we are in the midst of an irreversible tide of sexualisation of young people or whether it can be reversed - it is a matter on which I am not in a position to express a useful opinion. However, while I do not say this critically with regard to anyone, if one runs a newspaper, for example, and has chatlines which are accessible to children, one should not at the same time on earlier pages in the same newspaper be giving out about monsters. To do that would be to burn the candle at both ends.
Section 6 of the 1993 Act, as Deputy Howlin pointed out, had a very chequered career. It did not emerge as the primary defence of children in this area but as a by-product of the reform of the law in regard to prostitution and homosexuality, as set out in the legislation of the former Minister, Mrs. Máire Geoghegan-Quinn, when the Fianna Fáil-Labour Party coalition was in office. Clearly, attitudes have since changed. A summary offence under the Constitution has to be categorised as a minor offence but most people would not consider it morally minor that an approach was made to their child by somebody-----
Mr. Howlin: I do not believe the Minister does either.
Mr. McDowell: Nobody does. It is not morally minor in that sense. This explains to some extent how the particular section was overlooked. If it had been an indictable offence, it would have leapt out in the drafting process for last year's law that there was a problem in this regard which had to be addressed. However, it looked like a District Court offence and did not look to have all the importance it now does in retrospect. There is no doubt there is now a consensus in the House that it should not be regarded either constitutionally or legislatively as a minor offence. This is the reason it has been made indictable.
Deputy Peter Power raises the good question of why the sentence for solicitation is only five years. The point we must bear in mind is that last year, in the context of legislating for attempts, we set in place penalties which were less than five years. This is why a general upgrading of the penalties is contemplated in this Bill. To make this an arrestable offence in which there was a power to detain for questioning, the maximum penalties for these other offences, which are by definition more serious - an attempt is more serious than pure solicitation - have had to be recalibrated across a number of offences.
Deputy Howlin asked me to explain why, with regard to this particular offence, we are not providing a defence of honest mistake. I go back to the old offence of indecent assault, now called sexual assault. It was in the same 1935 statute and the Supreme Court, for reasons which are quite complicated, held that it did not carry with it an exclusion of the requirement for mens rea in that particular case. Therefore, the offence of sexual assault as we now know it was not comprehended by the finding that portions of the 1935 Act were unconstitutional for the reasons set out by the Supreme Court.
With regard to sexual assault, for example, we did not amend the law last year to provide for a specific defence of honest belief because the Supreme Court had said it exists as a matter of constitutional construction. That is why in regard to these offences-----
Brendan Howlin: What happens when we change the Constitution to put in the ability to have a zone of absolute protection?
An Leas-Cheann Comhairle: I should draw attention to the fact the Minister has only five minutes to reply.
Michael McDowell: I did not realise I had only five minutes. I thought I had the usual time.
An Leas-Cheann Comhairle: It is the order of the House.
Brendan Howlin: Can we alter that order because we are running early?
An Leas-Cheann Comhairle: The Deputies will have Committee Stage for further discussion.
Mr. Howlin: That is fine.
Michael McDowell: I must conclude but I want to record that it is not necessary to stick into every offence for which we legislate, just because the Supreme Court laid down that particular judgment in regard to one section of the 1935 Act, that there should be an explicit defence of mistaken belief. On principles of constitutional construction, an Act is construed in accordance with the presumption that it is constitutional and if there are two ways of construing it, the constitutional construction is preferred. I will deal with the other matters raised on Committee Stage. I do not want to ignore them, nor do I want to be disorderly.
Question put and agreed to.