James Browne (Wexford, Fianna Fail) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I am pleased to bring the Criminal Law (Sexual Offences and Human Trafficking) Bill 2023 before the House. The Government approved the drafting of the Bill in July of last year. Following publication of the report on the pre-legislative scrutiny of the general scheme by the Oireachtas joint committee in March, the Bill was published just before the recess in July.

The sexual offences and human trafficking Bill will update our sexual offences legislation and enhance protections for vulnerable victims. It provides for amendments to existing legislation arising from the recommendations of two expert reviews: the Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences, conducted by an expert working group, led by Professor Tom O'Malley, and recommendations from the Law Reform Commission on knowledge or belief concerning consent in rape law.

The Bill will also put a revised new national referral mechanism for victims of human trafficking on a statutory footing, which is key to making sure that those affected can access the supports they need.

In addition, the Bill will amend the Defence Act 1954 to implement recommendations arising from the report of the independent review group on the Defence Forces, which was published earlier this year. Finally, enactment of the Bill will remove the final legislative barriers to Ireland's ratification of the second optional protocol to the UN Convention on the Rights of the Child on the sale of children, child prostitution and child pornography.

I am sure Deputies will agree with me that we must do everything in our power to ensure that people impacted by sexual offences and human trafficking are afforded the strongest possible protection and support. I emphasise that development of this legislation is part of ongoing work in my Department to strengthen protections for vulnerable victims. Last week I brought forward a Bill to establish a dedicated agency on domestic, sexual and gender-based violence and I am grateful for the support it has received from across the House. Establishment of the agency is a key element of the third national strategy to combat domestic, sexual and gender-based violence. It will have a range of responsibilities, including the funding and commissioning of domestic, sexual and gender-based violence services, support for the delivery of refuges, and co-ordination of the implementation of the zero tolerance strategy. The agency will be charged with co-ordinating the Government's response to this important area. It will bring the dedicated and expert focus needed to tackle this serious and complex societal issue.

Other recent developments in this area include the establishment of a specialist sexual offences unit in the Office of the Director of Public Prosecutions. Training has been introduced for all staff who come into contact with vulnerable victims.

In order to promote more sustainable service delivery and planning, my Department is also offering multi-annual funding commitments to key NGOs working in this area. These grants cover accompaniment to court, to Garda interviews and to sexual assault treatment units, as well as emotional support and counselling.

The nationwide roll-out of divisional protective services units has ensured that vulnerable victims are dealt with by gardaí who have specialist expertise. A specialist training programme is delivered to all members of these units nationwide, in collaboration with the Garda College. This training on engaging with vulnerable victims includes modules on sexual crime investigation; domestic abuse intervention and investigation; victim engagement; sex offender management; and online child exploitation.

I turn now to the provisions of the sexual offences and human trafficking Bill itself, which I wish to outline.

Part 1 of the Bill is a standard Part which gives the Title of the Bill and commencement arrangements. It defines the "Minister" as the Minister for Justice and provides for expenses, regulations and orders.

Part 2 of the Bill deals with sexual offences and contains several important measures in that regard, which I will address in turn.

Section 7 of the Bill amends the law on consent in rape offences. This was advised by the Law Reform Commission on foot of a detailed analysis, published in November 2019, of the existing rape legislation. It recommended that the law should be reformed in order that the accused's belief in consent should be objectively reasonable. This provision gives effect to the policy intention that a man who has nonconsensual intercourse ought to be acquitted only if his belief that the woman was consenting was objectively reasonable. Any steps taken by the accused to ascertain if the woman was consenting will also be taken into account by the jury in determining whether his belief was reasonable.

This is a key legislative reform; consent cannot and should not simply be assumed. Sexual offences legislation defines consent as free and voluntary agreement to a sexual act. Requiring a belief in consent to be reasonable underscores the need for active communication between sexual partners to ensure that everyone is on the same page. It is easy to check in with a partner to make sure he or she is okay with what is going on. However, as we are all aware, the consequences of not doing so can be devastating.

The rationale for reforming our laws on rape is clear. However, during the course of drafting this Bill, certain legal and practical considerations have arisen. These include a Supreme Court judgment delivered at the end of August, which involved a complex and nuanced judgment on criminal liability in sexual offences. The ramifications of this judgment are under active consideration in my Department and may influence the proposed legislative approach. For this reason, I would like to flag at this juncture that I may bring amendments to this provision on Committee Stage and I will elaborate on the rationale for these at that time.

The remainder of Part 2 of the Bill focuses on the recommendations from the O'Malley review convened by my Department in 2020 to carry out a detailed examination of the criminal justice process. Its report, Review of the Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences, contained many valuable recommendations. This work informed the development of Supporting a Victim's Journey, the implementation plan drawn up by my Department to give effect to these recommendations.

Several of these important reforms have been put in place already. The introduction of preliminary trial hearings has helped to increase efficiency in how trials are run. Potential issues can be identified and solved in advance, allowing trials to proceed on their scheduled dates. This reduces delays and eases what can be a traumatic process for victims. The O'Malley review recommended the use of intermediaries to assess the communication needs of vulnerable witnesses. Intermediaries can advise police, advocates and the court on the steps needed to assist such witnesses to give their best evidence. The professional diploma in intermediary studies at the University of Limerick began last year, with 20 students participating in the first year of the course. Successful graduates are qualified as registered intermediaries.

A number of the O'Malley review recommendations require legislative amendments, and it is these amendments that I want to outline now. The Criminal Law (Sexual Offences and Human Trafficking) Bill 2023 is expanding a victim's right to legal representation in circumstances where an application is being made to question a victim about his or her previous sexual experience. This is being done in two ways. First, the provision is being amended to ensure that sexual assault victims are also entitled to legal representation in these circumstances. Second, the scope of the provision is being expanded. Where an application to question a victim about their previous sexual experience is granted, the victim will continue to be legally represented during this questioning. This means that her legal representative will be present with her in court, able to advise her and, if necessary, be able to object to intrusive or irrelevant questions on her behalf.

The Bill will also enact a number of recommendations relating to anonymity and the exclusion of the public from sexual offence trials. It goes without saying that these sensitive and difficult trials should not be held in public. The legislative provisions in this regard are being expanded to make sure that there is a legislative basis for excluding members of the public from the courtroom for all sexual offence trials. Provisions which require the sentence or verdict to be delivered in public are also being repealed. To be clear, this does not affect the reporting of such trials, as media representatives are still entitled to be present. What it does is remove nosy neighbours or complete strangers from a courtroom where highly personal and traumatic matters are being discussed. Anonymity provisions are similarly being expanded to ensure that all victims of sexual offences benefit from this. Revised definitions of "broadcast" and "publication" will cover publication by way of social media in order to protect the victim's identity.

This legislation also provides for the anonymity of an accused person, unless and until he or she is convicted of a sexual offence. A core principle of our legal system is that a person is presumed innocent until proven guilty. This is no less true for a person convicted of a sexual offence than for any other person before the courts. Even being prosecuted for a sexual offence can carry a heavy stigma. An accused person should therefore retain their right to anonymity until their guilt has been proven beyond a reasonable doubt, as our criminal justice system requires. I am glad to be bringing these well-considered and evidence-based legislative provisions before this House. They have been specifically designed to support and protect vulnerable victims in sexual offence cases and to ensure that our criminal justice system is more victim-centred. This is a priority for my Department, and our record reflects this.

The next chapter of the Bill concerns the vouching of character references in sexual offence trials. Currently, if a witness is called to court to provide character evidence, this evidence is given under oath. However, written testimonials are not sworn. The new provision requires that where a person has been convicted of a sexual offence, character references presented at sentencing must be made via oath or affidavit. This will ensure that a person providing a character reference on behalf of a convicted sexual offender must swear to the veracity of their statement and can be called before the court for cross-examination. The provision is designed to protect the victims of sexual crimes from further traumatisation during a sentencing hearing.

The measures that I have outlined so far relate to the area of sexual offences. I want to turn now to the issue of human trafficking, which is the subject of Part 3 of the Bill. I am sure I speak for us all in condemning this abhorrent crime, which exploits vulnerable people in a particularly ruthless manner. The prevention, detection and prosecution of human trafficking is a priority for my Department. The proposals in this Bill will put a new national referral mechanism, NRM, for the identification of victims of trafficking on a statutory footing. The NRM is the framework through which the State fulfils its obligations to protect and promote the human rights of trafficking victims, working in partnership with civil society. Currently, An Garda Síochána is the sole competent authority for the formal recognition of people as victims of human trafficking. This is not an adequate response. Some victims of trafficking, because of interactions they may have had with law enforcement officials in other jurisdictions, may have a perception that police cannot be trusted.

Our new model acknowledges that other State bodies and NGOs have an important role in identifying victims of human trafficking and referring them to the NRM. The Bill additionally designates a number of Ministers as competent authorities, as well as Tusla, the Health Service Executive and the Workplace Relations Commission. In addition, NGOs that have been designated as trusted partners will be able to refer victims for formal identification. This provides an alternative and trusted pathway to recognition via civil society organisations which support victims. It will make it easier for victims of human trafficking to come forward and be identified so they can access all of the supports and resources that are available to them. International best practice has shown that a single NRM for all victims is the optimum vehicle to support as many victims as possible through a universal support framework. The Bill will allow for the sharing of information between agencies to identify victims. Accommodation, medical services, legal aid, advice and other supports will be provided to the victim. The Bill also provides that a victim of human trafficking will not be deported for immigration offences committed while being trafficked.

It is not the intention of this legislation to change the immigration laws of Ireland or the permissions required to remain. The purpose of the Bill is to put the NRM on a statutory footing. It also ensures that a person cannot be prosecuted for his or her role in his or her own trafficking. Deputies should be assured that consideration of other criminal offences will be on a case-by-case basis. This will continue to be done in the context of the Director of Public Prosecutions' prosecutorial guidelines. In tandem with these legislative provisions, work is also advancing on the development of a new national action plan on human trafficking. I expect to publish this before the end of the year. This new action plan sets out how the multi-agency work to combat this criminal activity and support victims will be taken forward. These measures will help to: combat trafficking; create a more victim-centred approach to identifying and supporting victims; and raise awareness and provide training for those who need it. Putting the NRM on a statutory footing is a clear demonstration of Ireland's commitment to addressing the scourge of human trafficking and will strengthen Ireland's international reputation in this area.

Part 4 of the Bill relates to amendments to the Defence Act 1954. Deputies will recall the publication earlier this year of the report of the independent review group on the Defence Forces. The report highlighted a catalogue of unacceptable behaviour in that organisation over recent decades, including bullying, discrimination, harassment and sexual harassment. The Government committed to the implementation of the group's recommendations as a matter of priority, in view of the seriousness of the issues raised.

The amendments to the Defence Act 1954 that relate to sexual offences are to ensure that sexual assault, aggravated sexual assault, rape and rape under section 4 offences that take place in this jurisdiction will be dealt with by An Garda Síochána and the civilian courts. Military law will continue to apply where such offences take place overseas or where An Garda Síochána does not have jurisdiction. The Minister, Deputy McEntee, our colleague, the Tánaiste and Minister for Defence and I were in agreement that the legislative amendments recommended by the group should be progressed as a matter of urgency. We offered that the Criminal Law (Sexual Offences and Human Trafficking) Bill could be an appropriate and timely vehicle to do so. Progressing these amendments in the Bill will ensure that sexual offences are no longer dealt with under military law or in the court martial system. Women and men in the Defence Forces will be able to access justice in civilian courts in the same way as all other citizens.

Part 5 of the Bill relates to a United Nations protocol on child rights. The second optional protocol to the UN Convention on the Rights of the Child on the sale of children, child prostitution and child pornography is an important measure protecting children from exploitation. Legislative amendments are required in order for Ireland to ratify this protocol. The offence of obtaining or providing a child for the purposes of sexual exploitation can now be prosecuted where the offence is committed outside the State. Amendments will also ensure that mutual assistance can be provided to convention states in accordance with the protocol. The Office of the Attorney General has advised that these amendments remove the last remaining obstacles to Ireland's ratification of the protocol. My colleague, the Minister for Children, Equality, Disability, Integration and Youth will take steps to progress ratification once the Bill is enacted.

I reiterate the importance of the Bill and the package of measures it sets out. In various ways these are all designed to aid and assist vulnerable victims, whether it be to access supports, reduce trauma, strengthen protections during a trial or, more broadly, to ensure the criminal justice system is optimised and accessible for all. These measures are an important step forward in ensuring a victim-centred justice system, which is a key priority for me and for the Department. I look forward to the contributions of Deputies in the course of our debate and will be happy to address any aspects of the legislation that they wish to raise today and subsequently. I commend the Bill to the House.

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