James Browne (Wexford, Fianna Fail) | Oireachtas source

The Minister for Justice, Deputy McEntee, and I would like to thank Deputies Ward, Mitchell and Kenny for introducing this Private Members' Bill, which is on Second Stage, and which highlights the serious issue of the involvement of children in criminal wrongdoing in respect of controlled drugs. The Bill seeks to amend the Misuse of Drugs Act 1977 to criminalise the use and coercion of children in drugs distribution by making it a criminal offence to cause a minor to be in possession of drugs for sale or supply. The aims of the Bill are in line with Government policy and commitments in the programme for Government and Justice Plan 2022 to publish legislation to deal with adults who groom children into criminality. Therefore, the Government is not opposing the Bill on Second Stage. However, while the intention behind the provisions of the Bill proposed by the Deputies have merit, there are legal, policy and operational issues with the Bill as drafted. I will outline those issues shortly.

Before I do, however, I advise the Deputies and the House that Government legislation to address the grooming of children into criminality, as committed to under the programme for Government, is at an advanced stage. The Minister hopes to publish the criminal justice (engagement of children in the commission of offences) Bill 2022 before the end of this year. In considering the most appropriate approach to countering the very serious issue of the grooming of children for criminal activity, the Minister consulted the Garda, the Office of the Director of Public Prosecutions, the Department of Children, Equality, Disability, Integration and Youth, and the Attorney General in order to ensure the adoption of an approach most likely to succeed and to provide the broadest benefit to the vulnerable children at whom it is aimed. The engagement of children in the commission of offences Bill will criminalise the engagement of children in any type of criminality, including, but broader than, in respect of the sale and distribution of drugs as proposed in this Private Members' Bill. The Government will also limit the new offences to adults and thereby remove the possibility of further criminalising children who may already be involved in criminality. This is an important element of the overarching policy intention to target those who control criminality without adversely affecting vulnerable children themselves. This Bill has been developed in addition to the other non-legislative measures under way to address child criminality.

The Deputies will be aware of the University of Limerick's groundbreaking Greentown project, which has informed the development of both policy and practice in this area. This innovative project received recognition at the 2020 European crime prevention awards and provides insights into how criminal networks attract and confine children, encouraging and coercing them to be involved in serious crime and limiting their opportunities to escape the influence of those criminal networks. The subsequent national prevalence report shows that the issue of children being groomed into criminality is prevalent across the State. As well as analysing how criminal networks recruit and control often vulnerable children, the team involved in the Greentown project carried out work on developing a bespoke intervention programme. This work was assisted by an international team of experts on crime and criminal networks, together with Irish scientific, policy and practice experts in child protection and welfare, drugs and community development, strongly supported by key State agencies, particularly the Garda. The intervention programme is designed to reduce and disrupt the influence of criminal networks on children in a local area and provide supports for the positive development of the affected children.

The Youth Justice Strategy 2021-2027, which I launched on 15 April 2021, aligns with the objectives of Better Outcomes, Brighter Futures, and the next iteration of the national policy framework for children and young adults. It addresses a wide range of issues connected with the involvement of young people with the justice system and the steps that can be taken by all agencies, working with community partners, to keep young people out of trouble. The strategy is designed to provide a developmental framework to address key ongoing challenges, as well as new and emerging issues in the youth justice area. This includes preventing offending behaviour from occurring and diverting children and young adults who commit a crime from further offending and involvement with the criminal justice system. The youth justice strategy is conceived largely as a developmental framework and emphasises evidence-informed development of programmes and interventions. Implementation of the strategy will prioritise enhancement of existing services, such as Garda youth diversion projects, and the development of a range of more specialised interventions, with a particular focus on harder to reach children and young people. It also provides for enhanced criminal justice processes, detention and post-detention measures to provide consistent support to encourage desistance from crime and promote positive personal development for young offenders.

Government policy in respect of drugs and alcohol is set out in the national drugs strategy, entitled Reducing Harm, Supporting Recovery: A health-led response to drug and alcohol use in Ireland 2017-2025.

The strategy reflects a change in attitudes to substance misuse and promotes a more compassionate and humane approach to people who use drugs, with addiction treated first and foremost as a public health issue. This is underpinned by the key values of compassion, respect, equality and inclusion.

Children living in communities with higher prevalence of problem substance use are at increased risk of developing problems themselves. For some children, there are early identifiable behaviour patterns that indicate possible problems with substances later in life. The grooming of children by those who control criminal activity and the identification of crime networks as a separate and plausible risk factor underlying criminal offending by certain children are extremely serious matters which the Minister, Deputy McEntee, and I are working hard to address. Irrespective of what changes we might make to the law, the fact remains that attempting to deal with the exploitation of children for any criminal purpose requires a carefully considered approach, involving consideration of prosecutorial, operational and other service delivery issues, as well the strict letter of the law.

Returning to the Private Members’ Bill, the prosecution of any new offences involving the incitement or coercion of children would not be straightforward and there are likely to be difficulties with the workability of such a law in practice. Therefore, proposals for new legislation in this area, such as those proposed by the Deputies in this Bill, must be considered with the utmost care, taking into account the views of prosecutors, law enforcement and other experienced professionals working in the area when framing any such proposals. The Private Members’ Bill will make it an offence to cause a minor to be in possession of drugs for sale or supply. This offence exists in law already in that, if any person causes a minor to be in possession of a controlled drug, it will almost always be the case that the person was in possession of the controlled substance originally and either supplied, arranged for the supply, or sold it to the minor. The person will therefore have committed an offence under section 15 of the Misuse of Drugs Act 1977. The existing offence does not require the offender to be in possession of the drug at the moment when the offence is detected and the prosecution can prove constructive possession, for example when drugs are purchased online but not delivered into the hands of the accused.

In the new offence proposed in the Private Members’ Bill, additional proofs may be required which are not required to prove possession. Therefore, the unintended effect might be that the new offence is more difficult to prove than the existing offence. The Office of the Attorney General also pointed to potential constitutional issues with the provision that it shall not be necessary to prove that the person knew that the child was a child. This provision would appear to seek to create a strict liability element to the offence, which is problematic from the perspective of existing case law.

Furthermore, in many cases, the people buying drugs from children are other children. Therefore, it is important that any new legislation that seeks to address harms done to children does not risk further criminalising them. Unfortunately, the way that the Bill is drafted risks further criminalising vulnerable children who are already involved in the sale and supply of drugs by potentially criminalising a child who involves another child in the sale or distribution of drugs. There is no guarantee that those who ultimately control the activities of the children involved, whether as the offender or the victim, would be effectively targeted by the provisions.

Notwithstanding the policy and legal issues with the Private Members’ Bill that I have just outlined, I wish to reiterate appreciation to the Deputies for seeking to address the serious problem of child grooming. Their proposals clearly have serious merit. On this basis, the Government is not opposed to the Bill. However, I am also pleased to reassure the Deputies that the objective which their Bill seeks to achieve will be addressed more comprehensively by the criminal justice (engagement of children in the commission of offences) Bill 2022. The Government Bill will have a broader reach in that it will encompass any criminal activity in which a child is compelled, coerced, induced, invited or deceived to engage, beyond the sale or supply of drugs. In addition, the Government Bill limits the offence to adults and so removes the possibility of further criminalising children who may already be involved in criminality. It will also address the harm that is caused to children by drawing them into a world of criminality, which in itself is critically important. As I noted, the Bill is at an advanced stage and the Government hopes to publish it soon, before the end of this year.

In short, I want to thank the Deputies for an important Private Members’ Bill. The Government supports the intent and with our own Bill we are going to attempt to address it in a more detailed and broader manner.

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