Michael McDowell (Dublin South East, Progressive Democrats)

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it would be an offence to solicit or importune another person for the purpose of the commission of a sexual act were repealed.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.

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