Mr. Tom O'Malley:

Deputy Durkan asked whether there was reluctance to prosecute rape. Once it gets to the stage of coming into the Office of the Director of Public Prosecutions, the criterion is clear. At that point, a prosecution will be taken if there is a realistic prospect of conviction. Sometimes, there can be so-called public interest factors at stake, where, for example, the victim is very young or old or there may be exceptional reasons why a prosecution should not be taken. Anyway, this is one area where the victims' rights directive mentioned by Deputy O'Brien becomes important, because people are entitled to reasons for decisions why prosecutions were not taken. There are some circumstances where the giving of reasons can be refused, for obvious reasons. However, the Director of Public Prosecutions has set up a special section within the office to deal with the giving of reasons to persons who are concerned that certain prosecutions were not taken. There are good developments taking place in that area.

Deputy Durkan asked about cross-examination. Certainly, many improvements have been made over the past 25 years or so. At one time, complainants could be cross-examined quite mercilessly about their sexual experiences with people other than the accused or with the accused. Now, there are severe restrictions, in that judicial permission is needed to engage in such cross-examination. In any event, juries nowadays are far less sympathetic to such cross-examination. They would not necessarily welcome the idea of a complainant being cross-examined in that fashion. Still, as Deputy Durkan rightly said, there is much thinking to be done about the optimal way of treating complainants, especially people who are vulnerable on the grounds of age, mental incapacity, learning difficulty or whatever. We have done a lot in that area. As Ms Blackwell has said, some further valuable innovations were made in the Criminal Law (Sexual Offences) Act 2017. They have not come into force yet.

We all have our own pet topics. One of my pet topics, which I earnestly urge upon Members of the Oireachtas, is the problem of how the law on sex offences, the entire law on evidence and the way it operates in the trial of sex offences, is now dispersed among at least a dozen statues dating from 1885 up to 2017. It is something of a maze in which one section from one statute amends another. There is a crying need for something that many other countries have done, that is to say, produce a single comprehensive sexual offence statute that sets out all the offences. There are all kinds of little inconsistencies in the statutes at the moment. For example, rape is governed by a subjective test of liability. A man is not guilty unless he believed the woman was consenting, whereas in the case of sex with an underage person, the man only has a defence if he was reasonably mistaken. There are many such inconsistencies. It would be wonderful if we had a single sex offence statute. The process of developing that could well provide us with the opportunity to look at the optimal conditions that should govern the trial process. In other words, it is a chance to examine what should really be in place to facilitate complainants who have problems in respect of age, mental disability or whatever to see the extent to which the existing law copes adequately with those problems. Then, in the process of reform, we could make any further changes that are needed.