Bertie Ahern (Dublin Central, Fianna Fail)

I dealt with these matters earlier today. I received the information yesterday and I thought it would be useful to provide it to the House. Deputy Kenny wrote a letter to me, to which I hope to reply today giving the full information.

I have already said three times this morning but will reiterate that we are talking about a parliamentary committee to deal with the issues with which we need to deal in these cases. The Government will put forward its most senior people. I asked that the Opposition spokespersons would put forward their justice spokespersons, or relevant senior Members, so we can deal with these important issues.

With regard to the substance of the issues, I will outline my view to help the debate. Deputy Kenny wrote to me with regard to the issue of statutory rape under sections 1 and 2. I will treat the sections separately. I have already referred to and dealt with what I consider to be the most important issue for us to deal with, namely, the defence of honest belief.

On section 1, there are those who have been convicted before the courts of statutory rape and those in respect of whom prosecutions are pending. As the House is aware, the Supreme Court in the CC case struck down as unconstitutional section 1(1) of the Criminal Law Amendment Act 1935. In addition, the Supreme Court in the A case ensured that Mr. A, who had been convicted of such an offence, remained behind bars. We await the reasoned judgment of the Supreme Court in the A case to determine its full implications and its ambit.

There are at present 16 persons in custody having been convicted of an offence under section 1 of the 1935 Act. This cohort of persons are those who are likely to be directly affected by the decision of the Supreme Court in the A case. There are at present 42 persons on charges before the courts under section 1 of the 1935 Act. The CC case does not prevent the DPP from preferring charges of sexual assault or aggravated sexual assault and a rape charge. These offences carry a severe sentence of imprisonment. Our law provides that such charges can be added to existing charges on indictments against accused persons.

I emphasise that the underlying conduct that amounts to unlawful carnal knowledge under section 1 of the 1935 Act by definition also constitutes the offence of sexual assault and-or aggravated sexual assault. I cannot at this stage explore the factual details of these cases as it would not be appropriate. Any comment on individual cases would constitute prejudicial publicity and could result in a trial being stopped. The DPP is not by virtue of the CC case prevented from proceeding to prefer charges of sexual assault and-or aggravated sexual assault and-or, in appropriate circumstances, rape.

Section 2 of the 1935 Act has not been declared unconstitutional. While that section has been challenged, it remains on the Statute Book. The State will defend these proceedings. Three persons have been convicted of an offence under section 2 of the 1935 Act and no other offence. A total of 12 persons have been charged but not yet tried under this section. I understand the offence of rape, depending upon the factual circumstances, can be preferred. The DPP is not prevented by the CC case from making such a charge.

I cannot at this stage explore the factual details of these cases as it would not be appropriate to do so. I do not want to make any remarks that might constitute prejudicial publicity and result in the trials of accused persons collapsing. They are before the courts. It is for the DPP to make his decision on a case-by-case basis as to what, if any, substitute or additional charges should be preferred. Moreover, given that the issue of constitutionality is before the High Court, it is not proper to comment further on this cohort of cases. We will continue to review all of our legal options in regard to charges under the 1935 Act and await the Supreme Court judgment to assist us in coming to a conclusion in that regard. That deals, as far as is possible, with sections 1 and 2.

The reason I wanted the committee formed and wanted its work to take place in the summer is connected to the third point I made this morning, which concerned the defence of honest belief or mistake. It is as a result of the decision of the Supreme Court in the CC case that we have had to create a defence of honest belief. At no stage since the Law Reform Commission recommendation on the creation of such a defence has any Government or this House entertained the notion of creating such a defence. The reason for this is obvious. It creates a real and extra burden for the victim of unlawful carnal knowledge. It means the victim can be subject to rigorous cross-examination by counsel for an accused who, it may transpire, is a sexual predator.

The idea of 11 or 12 year old girls being grilled in a witness box as to their make-up, perfume, style of dress and the manner in which they comported themselves will undermine the effectiveness of prosecutions for unlawful carnal knowledge. Many parents and most citizens will be horrified at the prospect of girls of perhaps 11 or 12 years being subject to cross-examination. In those circumstances, I wonder whether the existence of the prospect of such cross-examination by experienced counsel will have a chilling effect on such prosecutions. One can look at the new trial process as almost amounting to an 11 or 12 year old being put on trial, which is unacceptable.

We have amended our law as required by the CC case. However, we need to have a hard look at the issue. Does any Member of this House want to subject a young girl, who has already been the victim of sexual abuse, to the trauma of a gruelling cross-examination about her appearance and the impression she created about herself, her maturity and her age? I hope that in the spirt of co-operation the Oireachtas committee will address the full implications of the CC case decision and the new law, and whether the worst effects of the honest belief defence can be mitigated in any way and if so, how. It is therefore important the terms of reference of the Oireachtas committee, which I put before the House today, are urgently agreed. The committee must address all the issues, including the sensitive issue of young girls of perhaps 11 or 12 years of age being cross-examined. I have also stated that some of the issues that have been raised with regard to the amendments concerning children, and other issues, should be considered.

The Government proposes that we set up a parliamentary committee next week and that it works over the summer and into the autumn to try to complete these issues. The whole House can then come to a judgment on the issues.

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