Oireachtas Joint and Select Committees
Tuesday, 14 November 2023
Select Committee on Justice and Equality
Criminal Law (Sexual Offences and Human Trafficking) Bill 2023: Committee Stage
Apologies have been received from the Cathaoirleach Deputy Lawless; Deputy Costello; and Deputy Brophy. Deputy Leddin will attend in substitution for Deputy Costello and Deputy Griffin will attend in substitution for Deputy Brophy. Due to the Cathaoirleach's absence, I have been asked to chair, which I hope is in order with members.
This meeting is to consider Committee Stage of the Criminal Law (Sexual Offences and Human Trafficking) Bill 2023. I welcome the Minister for Justice, Deputy McEntee, and her officials to the meeting. We will proceed with our consideration of the Bill.
I move amendment No. 1:
In page 6, line 20, to delete “Part, “Act of 1981” means the Criminal Law (Rape) Act 1981.” and substitute the following: “Part—
“Act of 1981” means the Criminal Law (Rape) Act 1981;
“Act of 2006” means the Criminal Law (Sexual Offences) Act 2006;
“Act of 2017” means the Criminal Law (Sexual Offences) Act 2017.”.
Amendment No. 1 is a technical amendment to this section to add in references to other relevant legislation, namely, the 2006 Act and the 2017 Act. In a later amendment, I propose to repeal sections of these Acts on foot of a recent Supreme Court judgment, which is why they need to be defined in this legislation. I will outline the rationale behind the repeals provision when we are discussing amendment No. 7.
Amendment No. 5 is a small technical amendment to section 17 to substitute “Act of 2006” for “Criminal Law (Sexual Offences) Act 2006” as this has been defined earlier in the Bill. They are both technical amendments.
The Deputy proposes to add a number of other offences to the definition of applicable offence contained in the Bill. These are specifically offences that relate to prostitution. As the Deputies will be aware, our sexual offences legislation, which is separate, criminalises the purchase of sex but related activities are also criminalised, such as the organisation of prostitution, living on the earnings of prostitution and brothel keeping as well. While I am conscious that a review is taking place and there are issues that individuals have raised, on some of those they are as currently stated criminal offences. It is important to underline that prostitution in itself is not against the law in this country. It is not an offence so a person choosing to sell sex is not a victim of an offence. Turning to the Deputy's proposed amendment the term "applicable offence" appears in sections 6, 7 and 8 of the Bill. These deal with the exclusion of the public from trials in particular with the anonymity of the victim and with the anonymity of the accused. This is very much a recommendation of the O'Malley report, which looked at protecting victims and vulnerable persons through the criminal process where they are victims of rape or sexual assault. The effect of this particular amendment would essentially confer anonymity during the trial and persons accused of the offences outlined above so if somebody was being accused of organisation of prostitution, living on the earnings of prostitution or brothel keeping, they would have that anonymity too. I am not sure, that may be what the overall intention was but if a person who is a victim of trafficking or who is in prostitution who is in a court process because he or she has been raped or sexually assaulted, it will automatically confer that anonymity on him or her. That is what we are very much trying to do in this section, following on from the recommendations of O'Malley. This particular amendment would allow for individuals who are keeping brothels, who are benefiting from or who are organising prostitution to also benefit from that anonymity and I do not believe that should be the case. They are obviously committing a crime.
I move amendment No. 3.
In page 7, between lines 2 and 3, to insert the following:“(c) by the substitution of the following for the definition of “sexual assault offence”: “ ‘sexual assault offence’ means—(a) a rape offence,
(b) aggravated sexual assault, attempted aggravated sexual assault, sexual assault, attempted sexual assault, aiding, abetting, counselling and procuring aggravated sexual assault, attempted aggravated sexual assault, sexual assault or attempted sexual assault, incitement to aggravated sexual assault or sexual assault and conspiracy to commit any of the foregoing offences, and
(c) an offence under section 4 of the Criminal Law (Human Trafficking) Act 2008, where the offence is committed for the purposes of sexual exploitation, and any offence of attempting, inciting, aiding, abetting, counselling and procuring or conspiracy to commit such an offence.”.”.
The Deputy is essentially proposing that the definition of "sexual assault offence" would be expanded to include human trafficking offences where this offence is committed for purposes of sexual exploitation. While both are clearly apparent crimes and crimes that exploit vulnerable people and the prevention, detection and prosecution of both are a priority for all of us, there are very clear differences between this crime and sexual assault offences. For example, maybe the accused in each would go through a very different process as would the victim. For example, it might be necessary for a person who has been trafficked to give evidence at a trial in relation to his or her previous sexual experience because obviously that would set out exactly how he or she has been exploited and it might be vital in securing a conviction but for a person who is a victim of sexual assault or rape, obviously that is a very different process that a person would not be put through. That is just one example of how they are similar in nature and obviously both are apparent crimes but there is a different process that would be gone through where a person who is accused of sexual exploitation through human trafficking, as opposed to someone who is accused of rape or sexual assault. Confusing and blurring the lines between the two potentially leaves us open to legal challenge. As I have said, at a later date I will be taking out sections where we had moved to put rape on a statutory footing but because of the potential implications for sexual assault, we are working that through separate legislation. Perhaps there is a role for this to be discussed at that stage but generally, as it is proposed they are two very different offences which I think should be kept separate because of that.
Also, in the context of this particular discussion, I wish to advise the committee that I intend to bring forward amendments on Report Stage to criminalise sex for rent. We are still working on getting the amendments right but I wish to highlight that this will be coming in, in this particular section.
I move amendment No. 4:
In page 7, to delete lines 11 to 15 and substitute the following:“ “(2) If at a trial for a rape offence the jury has to consider whether a man reasonably believed that a woman was consenting to sexual intercourse, the jury shall, in its consideration, have regard to—(a) the steps (if any) taken by the man to ascertain whether the woman was consenting to the intercourse, and
(b) any physical, mental or intellectual disability of the man, any mental illness of his and his age and maturity.”.”.
Amendment No. 21 is my own so I can outline that.
I propose to delete section 7 of the Bill. This deletion will remove the provisions on the knowledge of consent and rape which have been the subject of discussion, as we mentioned very briefly. The provisions in question stem from recommendations of the Law Reform Commission in relation to rape and moving to an objective test of knowledge of belief in consent to amend the offence to nonconsensual intercourse where the man does not reasonably believe at the time of intercourse that the woman consents. This gives effect to the policy intention that a man who has nonconsensual intercourse ought to be acquitted if his belief that the woman was consenting was objectively reasonable. However, the Director of Public Prosecutions, DPP, has highlighted serious issues with defining the mental state in relation to rape in isolation. Essentially, the DPP has said that the fact that we would change what is a subjective test to objective for rape but not apply it to sexual assault, would create problems. While this initially seemed a straightforward process, it is a more lengthy process that requires much further engagement. With regret, I am proposing to take this section out in its entirety to make sure that we can bring forward proposals that deal with this in terms of rape but also sexual assault. My intention is to bring that forward as quickly as possible. As I said, it is not as straightforward as we had initially hoped. It is my intention to develop policy proposals around codifying sexual assault in order to inform a separate sexual offences Bill, which would also include provisions on the knowledge of consent in this regard. This proposed deletion is a technical change.
I move amendment No. 6:
In page 11, between lines 11 and 12, to insert the following:“CHAPTER 5Repeals
Repeals and application of repeals
19.(1) The following provisions of the Act of 2006 are repealed:(a) section 2(5);(2) Section 8(3) of the Criminal Justice (Female Genital Mutilation) Act 2012 is repealed.
(b) section 3A(5).
(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.
I move amendment No. 7:
In page 11, between lines 15 and 16, to insert the following:
“Retrospective application of repeals
20.(1) Subject to subsection (2), the repeals effected by subsection (1)of section 19and paragraph (a)of subsection (3)of that section shall apply in respect of a relevant offence committed before the date of the coming into operation of this Chapter, including a relevant offence in respect of which proceedings had commenced before that date.(2) Subsection (1)shall not apply in respect of a relevant offence committed prior to the date of the coming into operation of this Chapter where final judgment was given before that date in the proceedings in respect of the relevant offence.
(3) In this section “relevant offence” means—(a) an offence to which section 2(5) or 3A(5) of the Act of 2006 applied, immediately before their repeal by section 19(1), or
(b) an offence to which section 22(5) of the Act of 2017 applied, immediately before its repeal by section 19(3)(a).”.
I move amendment No. 8:
In page 17, between lines 23 and 24, to insert the following:
“Identification of applicant as child
25.If at any stage in relation to an application a question arises as to whether an applicant is or may be a child, the applicant shall be assessed by the Child and Family Agency and an estimation of the applicant’s age shall be made by it, and the age so estimated shall, in the absence of contrary evidence, be accepted as the age of the applicant.”.
This relates to the identification of the applicant as a child and how we can find a mechanism to ensure the person is a child if at any stage with regard to an application, a question arises as to whether an applicant is or may be a child. In such a scenario, the applicant shall be assessed by the Child and Family Agency and an estimation of the applicant’s age shall be made by it and an estimation of the applicant's age shall be made by it and the age so estimated shall, in the absence of contrary evidence, be accepted as the age of the applicant.
I accept what the Deputy is trying to achieve with this amendment. First, the role of Tusla within the new national referral mechanism is clearly set out. The way this amendment is worded would prescribe additional requirements in statute on Tusla, which would have to be done with agreement so further engagement would be needed with the agency. I acknowledge there have been asks for a separate referral mechanism for children. What we are proposing, which is the right thing to do, is that there be one national referral mechanism so if a person is identified as a potential victim, be it a child or otherwise, that can be through not just An Garda Síochána but a stated agency, be it Tusla, the Department of Social Protection or the HSE or other NGOs that are trusted partners. Ruhama is the first that might spring to mind. If they recommend or bring forward a person they believe to be a victim, they will then go to a specialist committee where all of the supports and resources work together and can immediately be put in place. The intention behind this new mechanism is that if a person comes forward and says he or she is 16, Tusla will be brought in and there will be a presumption that this child is 16 and the full supports will be wrapped around him or her until there is an age assessment that would prove otherwise. Regarding what the Deputy set out, it is very much the intention of the Bill that if a person comes forward and says he or she is a child, he or she will treated as such until there is an age assessment and it can be proven otherwise. The way this amendment is worded would place this statutory obligation where that has not been fully agreed with the agencies. What I am proposing to do is come back with an amendment to set this out following further engagement with Tusla. It is important we have further engagement with it because what is set out is in line with what the Deputy is proposing but we would be putting something in statute without-----
I will bring forward amendments on Report Stage to amend the Criminal Law (Human Trafficking) Act to update dated terminology that refers to vulnerable persons as mentally impaired and to provide that there is no need to provide the trafficking of a vulnerable person occurred via specified means such as force, fraud or any other specified means.
I move amendment No. 9:
In page 19, to delete line 6 and substitute the following: “(a) there are reasonable grounds for believing that the applicant might be a victim of human trafficking, and”.
This amendment proposes to delete line 6, which states "there are reasonable grounds for believing that the application is credible" and substitute it with "there are reasonable grounds for believing that the applicant might be a victim of human trafficking".
I will speak to amendments Nos. 10 and 12. They relate to saying that the applicant has been trafficked instead of saying that the application is credible. It removes the credibility requirement because it is in contravention of the EU anti-trafficking directive and Irish case law. I hope that the Minister would take this on board.
Amendment No. 11 proposes deleting line 9 and substituting "where there are reasonable grounds for believing that the applicant might be a victim of human trafficking". It is the difference between saying he or she is credible and actually stating that he or she is a victim of human trafficking.
We have three proposals in to do the same thing but with slightly different wording. I assure the Deputies that I agree and we want to ensure that we remove the reference to credibility and replace with a reasonable grounds standard. I have been advised that it is potentially a part of all three of them and so what we are trying to identify through the Office of the Parliamentary Counsel is the correct wording to make sure it is legally sound and in line with international good practice. I propose to bring forward an amendment that would essentially achieve the same outcome all three amendments are trying to achieve but I want to ensure the language is legally sound. We are all looking to achieve the same thing here.
I move amendment No. 13:
13. In page 23, between lines 33 and 34, to insert the following: “(5) The International Protection Act 2015 is amended in section 49(3) by the substitution of the following for paragraph (b)—“(b) humanitarian considerations including, where relevant, that the applicant has entered the National Referral Mechanism under the Criminal Law (Sexual Offences and Human Trafficking) Act 2023,”.”.
What we have here in section 49(3) already mandates me to have due regard for humanitarian considerations when making a decision, whether it is on an international protection applicant and whether they should be granted permission to remain, in that regard. Obviously, if somebody if a victim of human trafficking, it would fall under that consideration. The concern here is that by being specific it would actually identify one particular group of people as potentially being more vulnerable or desirable under that grouping whereas the wording as it is set out already allows for each individual case to be taken into consideration and assessed under humanitarian grounds without specifying one group. I do not believe the amendment is necessary because that would fall under the wording as set out and potentially leads to one particular group being singled out as needing greater support than others, acknowledging, obviously, that we are talking about a very vulnerable group of people. Significant different groups of vulnerable people would fall under the same particular heading.
I move amendment No. 14:
In page 24, to delete lines 2 to 5 and substitute the following: “(b) accommodation or assistance with accommodation that is gender-sensitive appropriate and safe;”.
Essentially, we want to be a bit more prescriptive when it comes to the type of accommodation being offered. Accommodation or assistance with accommodation that is, "gender-sensitive, appropriate and safe."
It clearly gets rid of a requirement for trafficked persons to enter direct provision and that is why we are pressing the amendment. As regards amendment No. 16, which is in the name of Deputy Pringle, it allows access for an immigration permission for trafficked person because people who are trafficked are less likely to come forward as they fear deportation. We support that. I am sorry for jumping the gun on his amendment.
For all of those reasons it is vitally important. The risk here for the Department and for system is that somebody who maybe is not deserving of humanitarian leave to remain or whatever can short-circuit the system to get into the process. Being compassionate towards victims of human trafficking is a greater good than actually allowing the prosecution of traffickers and defeating them. From that point of view, it is something that should be allowed and I hope the Minister will take that on board.
I will speak to the first two amendments separately and then amendments Nos. 16 and 17 together. I cannot accept amendment No. 14 because it would create a right to accommodation and nobody has an absolute right to accommodation. That is perhaps a separate discussion that is happening. What we can provide is assistance and for that reason, I accept amendment No. 15 because what we are talking about is providing assistance with accommodation provided for under the revised national referral mechanism. What we are trying to do here specifically with this Part of the Bill is put the national referral mechanism on a statutory footing but not to create new entitlements. For this reason I am distinguishing between the two, one infers an absolute right that nobody has but the other talks about assistance with accommodation, which is obviously what we are trying to achieve here.
With regard to amendments No. 16 and 17, again what we are not doing in this particular section is redesigning or reforming the immigration system. For a person to come forward now already, and as part of this Bill, a 60-day recovery and reflection period that is automatically granted. This allows them time to regroup and to remove themselves from the situation they are in. This is in the form of a stamp 4 permission that they receive immediately. It gives them permission to be in the State and to take up employment without the need for an employment permit. They do not have to co-operate with any police investigation during that 60-day period but if they are engaged with An Garda Síochána or assisting, they can have this temporary residence extended as well. If it is extended up to six times, which is the equivalent of three years, they then automatically receive a two-year permit, and again this is on the basis of a stamp 4. There are protections very clearly laid out for people who come forward to very clearly send the message they will not be deported, to please come forward, and we want to support and help them. There is a clear pathway for them to potentially be able to stay and receive the stamp 4 along those lines. The impact of the amendments would essentially amend our immigration legislation, which there will be an opportunity to do at a separate stage. To do it for just one group of people and not address others would be problematic. I hope there are clear enough protections for people to be able to come forward in what is set out in the Bill and what we provide now.
I move amendment No. 16:
In page 24, between lines 18 and 19, to insert the following: (h) access to a relevant immigration permission.”
I have another few questions regarding that, if I may. The Minister outlined the avenue for leave to remain that people can have. I presume that is if they co-operate with the Garda investigation.
Yes, this is where the committee comes in then in terms of the national referral mechanism. Where the committee identifies a person as a victim, that then allows them the opportunity to potentially extend that period. A national referral mechanism will be on a statuary footing and there will be a specific committee, which will encompass An Garda Síochána, State agencies and the NGOs that work with many victims of human trafficking, whose role and responsibility will be to identify whether a person is a victim or not. That will then apply in this instance. As it currently stands, very few, if any, people who come forward are deported even without the national referral mechanism and even on the basis of the fact we have only had two convictions ever for human trafficking. Nobody has been deported. That is not to say it cannot happen but if somebody is clearly identified as a person who is not a victim, that puts a different process in place. For the most part, where victims come forward they are treated in a very dignified way and they are believed in most instances.
We would know on that basis. In cases where someone has come forward and claimed to be a victim of trafficking, I am not sure anyone has ever been deported. I can clarify that for the Deputy but my understanding is that very few, if any, have been deported.
I move amendment No. 17:
In page 24, between lines 18 and 19, to insert the following: “(h) at the request of the presumed victim of human trafficking or the identified victim of human trafficking, a permission or permissions (within the meaning of section 4 of the Immigration Act 2004)—(i) to be in the State, and
(ii) for one or more family members to be in the State.”.
I move amendment No. 18:
In page 25, to delete line 20 and substitute the following: “(a) there are reasonable grounds for believing that the applicant might be a victim of human trafficking, and”.
I move amendment No. 20:
In page 27, to delete lines 18 to 21 and substitute the following: “5A.(1) Notwithstanding section 7 of the Criminal Law Act 1997, it shall not be an offence for a trafficked person to aid, abet, counsel or procure another person to commit an offence under this Act relating to the trafficking in, or to, the State of the trafficked person.(2) It shall be a defence to a prosecution for an offence, other than a serious offence within the meaning of the Bail Act 1997, for a trafficked person to show that he or she did the act constituting the offence concerned as a result of coercion, intimidation or harassment or otherwise as a direct consequence of having been trafficked.”.”.
This works in tandem with the previous part of the section.
The DPP is independent in her functions. This amendment would provide a statutory defence for a person where that person has committed an offence that is not within the dominion of the Bail Act 1997, so where it is not rape or murder but an offence for which the penalty is anything under five years. It could potentially be assault or some form of theft. It would automatically provide that being a victim of human trafficking would be an automatic defence in this instance. A person who may be a victim of human trafficking may assault another person and that assault may have nothing to do with the situation the person is in.
The DPP and justice system would take into consideration, as they must always do, factors to be considered. This includes the nature of the offence, whether coercion or duress was involved and whether the suspect has co-operated with the authorities. A decision then has to be taken by the DPP. I do not think we could suggest that every offence a person commits, other than serious offences under the Bail Act, including rape and murder, is a direct consequence of being trafficked. As is all cases, all these factors would have to be taken into consideration. The DPP is the best person to make those decisions. I am confident that the DPP would take into consideration whether a person has been trafficked, what that has potentially meant and what has led to the particular crime that was committed.
I move amendment No. 23:
In page 5, line 11, after “enactments;” to insert “to repeal certain provisions of the Criminal Law (Sexual Offences) Act 2006 and the Criminal Law (Sexual Offences) Act 2017; to provide for the retrospective application of certain of these repeals in certain circumstances;”.
On behalf of the select committee, I thank the Minister and her officials for their attendance. The committee will meet again on Tuesday, 28 November 2023 to consider Committee Stage of the Criminal Justice (Engagement of Children in Criminal Activity) Bill 2023 and the Supplementary Estimates for 2023.