Friday, 2 June 2006
Criminal Law (Sexual Offences) Bill 2006: Committee and Remaining Stages.
I move amendment No. 2:
In page 3, to delete lines 18 to 20 and substitute the following:
(c) any person who is, for the time being, responsible for the education, supervision or welfare of the victim;
(d) any person who is more than 60 months older than the victim;".
I am concerned about a number of issues in regard to a person in authority. I am also concerned about the issue raised by my colleague, Deputy Stanton, of an uncle not including an uncle-in-law. I am mindful of a case in 2001 involving a garda where the child was a niece of the wife. I am further concerned about the recommendation of the Law Reform Commission not being included in regard to a person of authority. That was the provision relating to the five-year gap. I suggest a re-formulation that, I hope, will cover these various concerns and strengthen the Bill.
I am unhappy with the proposal that a person who is five years older in calendar months would be deemed to be a person in authority. It is not one I find attractive. I do not believe there are not genuine consensual situations in which this may not render a significant injustice. The Deputy will be aware that I had in mind two or three years as a possible age difference provision.
I am aware that the Law Reform Commission in 1990 proposed a five-year age gap, but I am uncomfortable with it and the Government is reluctant to go down that road. The effect of this amendment would be to expose someone who is five years older than the other individual to massively increased penalties compared with those for someone who is four years and nine months older. I am not attracted to the idea that someone who is 58 months older should be in a radically different position from that of someone who is 60 months older.
One of the things I intended to say if I had been allowed to finish my speech this morning was that I intend to establish an all-party committee on this subject because issues such as this need to be teased out very carefully. People have spoken about a two-phase, as opposed to two-faced, approach to this legislation. I am happy to adopt the proposal that we should have a second look at this legislation on an all-party basis. The Government recently decided that I should deal with the problems which are not dealt with in this legislation in the context of an all-party committee. I could not give this information this morning because of time constraints but this is my intention.
I will not divide the House on this issue. I will accept a three-year age gap provision if the Minister agrees to it so that we can incorporate the principle by way of protection of young children from those who could be in a position of authority over them merely by virtue of age.
To be honest, when I spoke about two and three years, I was referring to consensual activity which would attract a lesser penalty. This provision would put people who are over 30, 50 or 60 months older than the other individual into a situation where they commit a much graver offence. We are not talking about exactly the same thing so this matter should be kept back for all-party consideration.
Amendment No. 2 referred to people involved in education. I am aware that we are talking about a short-term stopgap. However, the ability of someone to cite a constitutional entitlement to have a case heard in Irish, as someone from the world of education could do, possibly goes under the radar of what we are trying to achieve today, which is to prevent the eventuality of anyone abusing any constitutional shortcoming. Will the legislation will be provided in both official languages so that no shortcomings will arise, either by omission or commission?
There was insufficient time to provide an official translation of the Bill. I will address Deputy Sargent's comments about people in an educational role. Unless we adopt this Bill, a 35 year old male teacher who has sex with a girl aged 15 or 16 will commit a serious offence under the law if we reinstate it as it was but, curiously, a female teacher who seduces a boy aged 15 or 16 would be guilty of no offence. This Bill treats these two scenarios equally.
Since the debate has been very truncated, I wish to make a few observations. The committee promised by the Minister is necessary but we needed it before he went beyond the 1935 Act.
This morning in response to my statement that after today, it would not be the case that a serious offence had been carried out by an individual, the Minister trenchantly said a serious offence would have been carried out. In a further reply shortly before Committee Stage commenced, the Minister conceded the point and said no offence would have been carried out.
I move amendment No. 4:
In page 4, before section 2, to insert the following new section:
"2.—That the interests of the child should be a primary consideration in line with Article 3 of the UN Convention of the Rights of the Child.".
This debacle has shown that we must place more focus and attention on the rights of children, not only in this legislation but also in the wider body of law. In particular, we must enshrine the rights of children in the Constitution. Unless we incorporate those rights in the fundamental statute underlying every other law, we are not giving enough attention to children's needs.
While I understand that many aspects of the Bill touch on the convoluted, important and controversial issues affecting children, we should include phrasing in the law so that the rights of the child are a primary consideration. It would better inform the various agencies that address the matter of children's welfare and the way in which judges deal with the law.
It is not to be assumed that the Director of Public Prosecutions does not take into account the interests of a child when deciding whether to initiate a prosecution against or about that child. The DPP must take into account whether it would damage the child to bring him or her to court to give evidence. He must also consider whether it is reasonable, having regard to the overall social and common good, to institute prosecution against a child.
The director has a broad discretion under common law and, in accordance with the preamble to the Constitution and the overall requirement that everything we do should be informed by justice and charity, he believes this permits him not to make rigid or unfair decisions that are damaging to children.
Will the Minister clarify that? He has not given a particular reason to reject the amendment. Rather, he wanted to say the DPP is a good person and would obviously take on board the relevant concerns, but is it not valid for us as legislators to put such in writing?
As the Deputy probably appreciates, the Ombudsman for Children has written an evaluation of the Bill and made some suggestions along these lines. On examination, a number of the suggestions are problematic, but they can be considered by an all-party committee. I would welcome such consideration.
As only 15 minutes remain and most of the amendments will not be reached for the inexplicable reason that only 30 minutes has been given to Committee Stage of this serious Bill, the Minister should now indicate his attitude to all 28 amendments so we know where we are going when 2.30 p.m. arrives and the vote must be held.
I agree with the Green Party that the interests of the child should be a primary consideration. Child in a legal sense includes 15 and 16 year olds. There was an outcry 20 years ago from certain people for an abortion referendum which was subsequently carried. Then the X case happened, bringing clearly into focus a situation where a child was being imprisoned by the State on this island. The majority of the people voted to take the State away from a decision that must be made by her and her guardians.
The Government, however, is today criminalising consensual intimate relations between 16 year olds in a relationship that is warm and loving and making it punishable by five years in jail.
I will vote against this Bill at 2.30 p.m. if the Minister keeps that provision in it. In two or three years a 16 year old who has participated in a relationship in good faith and had intimate relations will find himself in the dock with a sentence of five years being sought.
What will the majority of people say to that? They will say the whole thing is ridiculous. I spoke to many parents yesterday at a number of functions around my constituency and I asked what they thought of 16 year olds being criminalised in this way and, to a person, they disagreed with it.
On the question of consensual activity, Deputy Howlin's amendment and Deputy Jim O'Keeffe's amendment and the Bill do not display consensus. Deputy Jim O'Keeffe is proposing a nominal penalty. The Green Party is proposing a community service order. Deputy Howlin wants it to be decriminalised and Deputy Joe Higgins agrees with him. We do not have consensus on this issue.
If I reinstated the pre-existing law, it would bring about the present situation that the boy commits an offence theoretically but the girl does not. I am providing that girls do not commit an offence so they are not stigmatised and boys, who could commit serious offences under this provision, should not be prosecuted save by the direct decision of the Director of Public Prosecutions.
I will come back to Deputy Jim O'Keeffe in a second.
It may be of assistance to the Deputy. I am trying to preserve the status quo until the House has an opportunity to work out a consensus. I will accept Deputy Jim O'Keeffe's amendment No. 19 on the sex offenders' register. I am trying to show a reasonable approach to the matter in this atmosphere.
What are the transitional arrangements between now and when the changes that have been made become law? What is the situation with those who may be currently charged with offences which may be struck down and replaced by alternative offences? Is there a transition provision in the Bill? I have been asked this by counsel actively involved in this area, so I presume it to be an important issue.
We should have a chance to tease out these issues. From the point I have made, there are clearly difficulties which have not occurred to the Minister, with two apparently occurring to him overnight. Will he agree to a sunset clause? We can agree on this Bill today but come back in the near future to sort out the anomalies that exist. He has given the commitment, as a half-way house, of having an all-party committee, but will he insert a sunset stipulation on these measures so we have a requirement to come back to legislate in the medium term?
With regard to transitional arrangements, the Interpretation Act is relevant if a section is repealed. For example, section 2 of the 1935 Act is to be repealed, and section 1 is already gone, as the Deputy will appreciate. Section 2 will be repealed by this Act, but it does not knock out existing prosecutions or prevent persons from being prosecuted with respect to past Acts.
There is a doubt with regard to section 2 of the 1935 Act arising from the decision given about section 1. It is a matter for the Director of Public Prosecutions. I cannot tell him to quash or stay existing cases. That is his independent function under our law. I cannot direct him in such matters.
As soon as may be. If a consensus emerges, I will try to give effect to the consensus position on this question of teenage consensual activity and every other issue we have not been able to deal with in this legislation.
A sunset clause should be agreed to or it will be a lawyer's paradise. There are several anomalies in the legislation, which the Minister himself knows. It was foisted on the Government and it would be wise to put in a sunset clause and let us come back to the matter.
I will take my opportunity to speak if other Members do not mind. I know we are suffering from a time lapse. I reiterate the sunset clause issue as outlined by Deputy Cuffe and others. It seems clear the Minister is not going to take out parts of the Bill which Opposition Deputies object to. I hope there will be a time to examine it sooner than the end of this year, as the matter needs to be revisited quickly. I reiterate the calls of my colleagues for a sunset clause to be inserted.
The Minister mentioned that section 4 could be discussed with regard to the committee. I wish to raise a point mentioned with regard to the DPP already recognising the interests of the child. For example, in pursuing a case relating to statutory rape as an offence on which a person can be convicted rather than some other form of sexual offence, I presume the DPP would proceed with the statutory rape case in order to protect the interests of the child and not subject him or her to rigorous cross-examination. Why does the Minister have difficulty inserting amendment No. 4 given that it is not contentious and that it asks for the rights of the child to be a primary consideration? Most importantly, it sends a clear message to people outside these Houses that we take the interests of children into primary consideration. It is not a tautological insertion but neither will it shackle the Director of Public Prosecutions in any way. In that context, why can it not be included now?
The DPP has very wide discretion. I asked him whether a provision taking into account age, which was analogous to taking into account the interests of the child, would be a good or bad idea. His view was that his discretion should be left untouched by legislative measures. If we start legislating for how discretion is exercised, it will end up becoming the subject of judicial review, which is not the case at the moment, and will develop into a rigid, court-bound set of guidelines which will not enable him to do his work.
I will make an interesting point which I would have made this morning if I had been given a fair opportunity to be heard. In 1968, the presiding judge of the Court of Criminal Appeal, dealing with the question of statutory rape and ordinary rape, said the following:
Because the rape count was laid the prosecution took on the onus of establishing that the carnal knowledge of the prosecutrix was had by force and without her consent. This involved calling the prosecutrix as witness. This court is of the opinion that prosecutors in cases involving the carnal knowledge of young girls should seriously consider the possibility of being able to sustain a conviction without the necessity of calling such young girls as witnesses, and thereby exposing them to the ordeal of having to recount in court what must have been for them a terrifying experience.
That shows that as far back as 1968, on this very issue of forcing young girls to testify, a judge of the Court of Criminal Appeal, which consisted of Supreme Court and High Court judges, thought it a great advantage of the charge of statutory rape that young girls avoided the ordeal of cross-examination.
I am very pleased the Minister is accepting my amendment to exempt young teenagers from being placed on the sex offenders' register, which is an improvement.
Under section 2, somebody can plead a defence of mistake as to age in the defilement of a girl aged under 15. I wanted to raise the danger of somebody being able to plead such a defence if a girl is aged 16. I am concerned that somebody could adopt a defence under section 2 to get off, even though he would be guilty of an offence of defilement of a child under 17, which is covered by section 3. He should be automatically charged with an offence.
The DPP can lay alternative counts and there is a provision for alternative verdicts. Somebody should not be able to escape liability by saying he thought a girl was 15 when he was accused of having sex with her on the basis that she was 14. It can easily be remedied by the DPP putting two counts against the accused in a live case.
Under the 1924 Act, where a trial is ongoing or has started, the Irish courts, and this may be relevant to proceedings on the other side of the city, are obliged to substitute an indictment where the facts disclose an offence unless they consider an injustice would be done to the accused. There is a positive duty on a presiding judge in a jury trial to substitute an indictment which measures the offence for one that does not do so if he or she believes it would not do an injustice to the accused. That has been the law on trial on indictment since 1924. It is relevant because——
The next amendment deals simpliciter and clearly with that net point without reliance on any extraneous matter. I ask the Minister to accept it for the sake of clarity. If the defence that the accused believed the child to be aged over 15 years were accepted, one could still be charged with the offence of the child being under 17 years.
I am required to put the following question in accordance with an order of the Dáil of this day: "That amendment No. 19 and the amendments set down by the Minister for Justice, Equality and Law Reform for Committee Stage and not disposed of are hereby made to the Bill, in respect of each of the sections not disposed of, that the section or, as appropriate, the section as amended is hereby agreed to on Committee Stage, that the Schedule and the Title are hereby agreed to on Committee Stage, that the Bill, as amended, is accordingly reported to the House, that Report Stage is hereby completed and the Bill is hereby passed."