Brendan Howlin (Wexford, Labour)

I may oversimplify the matter but we need to get it clear before Committee Stage because we are expected to draft amendments to the Bill. I am advised that defences are put into Acts which create offences not just because they are required by the Constitution but so that we in this House, the elected Members of the Oireachtas, can define the substance of those defences, instead of leaving the courts to make determinations without our guidance. If the courts are obliged to read a defence of honest mistake into this Bill, as the Minister indicated to the House, on whom will the burden of proof lie? Will the prosecution have to prove beyond reasonable doubt that the defendant was aware that a child was under age or will it be for the defendant to prove on the balance of probability that he was not? If we legislate on the question we can specify what the rule should be. If we do not we leave it open to individual judges to make the determination.

In the absence of legislation putting the burden on the defendant, it is open to the courts to decide that the absence of honest mistake must be proved by the prosecution, rather than the reverse having to be proved by the defence. If the courts are required to rule on the issue rather than the Legislature, will the defence be one of honest mistake or one of honest and reasonable mistake, which we could determine? Will it be enough for a defendant to be honestly mistaken about a child's age or will he have to show that, in all the circumstances, it was reasonable to make that mistake? These are issues which will bedevil prosecutions under tonight's Bill if we do not take it upon ourselves to deal with the issue in the legislation. I would have liked more time to take better and longer advices on these matters, rather than having to respond to the Minister's speech on Second Stage without even having left the Chamber.

These are important issues which we must get right. I reject the Minister's claim, "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". Such offences do not exist for certain types of crime. For example, there is none for the man who hangs around outside a public lavatory or a school and approaches a child and importunes the child for sex. Unless a sexual act is committed, Internet-related and other law does not come into effect. We need this serious offence as a stand alone offence on our Statute Book. The Minister must agree with that or we would not be in the House tonight. It would be a catastrophe if, on the fourth attempt to deal with this matter, we made another mistake in a guillotined debate and the case was made in court that the burden of proof rested not with the defendant but with the prosecution.

We asked that the legal advices from the Attorney General be presented to us in advance of the debate but that did not happen. We have had to absorb the Attorney General's response to the Tánaiste, and that of his own legal expert advisers, but those two authorities were wrong last year. They were wrong on another serious matter, which I will not deal with on Second Stage but will on Committee Stage, namely the knocking down of the offence of abuse of a minor. That was one of the main offences used to prosecute offenders connected with the Ferns Report. God knows that, given my geographical location, I am familiar with those offences. Gross indecency against a minor under the age of 15 was, I believe inadvertently, knocked down last year. The Minister originally said that was not the case, then that it was and, more recently, that he had intended to knock it down because it was not gender neutral. However, we need that offence and hope to have time on Committee Stage to discuss it.

These are important issues and there is a responsibility on us to get it right. The public will not countenance another cock-up relating to the protection these Houses put in place for vulnerable and innocent children. I regret we will have inadequate time to tease out the issue satisfactorily. I greatly regret that we may be obliged to revisit these issues and engage in a more in-depth debate on them when further loopholes are identified.

See this speech in context