Helen McEntee (Meath East, Fine Gael) | Oireachtas source

I move amendment No. 6:

In page 11, between lines 11 and 12, to insert the following:

“CHAPTER 5

Repeals and application of repeals

Repeals

19.(1) The following provisions of the Act of 2006 are repealed:

(a) section 2(5);

(b) section 3A(5).

(2) Section 8(3) of the Criminal Justice (Female Genital Mutilation) Act 2012 is repealed.

(3) The following provisions of the Act of 2017 are repealed:

(a) section 22(5);

(b) section 29(2).”.

Section 19 deals with repeals. This section repeals section 8(3) of the Criminal Justice (Female Genital Mutilation) Act 2012 and section 29(2) of the Criminal Law (Sexual Offences) Act 2017. Again, this is in line with the recommendations of the O'Malley report. It removes the obligation for verdicts or decisions and sentences in proceedings for female genital mutilation offences or incest offences to be announced in public. The amendments proposed will also repeal section 2(5) and section 3A(5) of the Criminal Law (Sexual Offences) Act 2006 and section 22(5) of the Criminal Law (Sexual Offences) Act 2017. This arises on foot of a recent Supreme Court judgment at the end of August 2023 that found that section 3(5) of the Criminal Law (Sexual Offences) Act was unconstitutional. The Act provided for the defence to defilement of a child where the accused could prove that he was reasonably mistaken as to the child's age. However, section 3(5) required the accused to prove this on the balance of probabilities. The court held that imposing a burden of proof of this standard on the accused cannot be constitutionally justified.

The sections I have just mentioned similarly require an accused person asserting reasonable mistake to prove this on the balance of probabilities and as such are constitutionally vulnerable, so this is another element that must be addressed. In the previous section, that was just taken out. After consultation with the Attorney General, I am proposing that this section be repealed.

As proposed, new section 20 outlines the effect of these proposed repeals. On the advice of the Attorney General's office, the repeals will apply with immediate effect. They will also apply retrospectively to offences that were committed before the provisions came into force. However, they will not apply where a final judgment has not been delivered in respect of an offence. Amendments Nos. 22 and 23 update the Long Title of the Bill to reflect the changes made to the repeals provision.