Tuesday, 6 March 2007
Later today the House will debate emergency legislation to prevent predators using the Internet to meet children for sexual relations and to reinstate the offence of soliciting a child for sex. It is clear that the Government's frantic rush to bring in this legislation has only come about because of initiatives taken on this side of the House. Last week the leader of the Labour Party, Deputy Rabbitte, exposed a deficit in the legislation consequent on the legislation introduced last year arising from the Supreme Court decision in the CC case. The proposals in the Bill to be debated by the House this evening are to do with grooming and are lifted word for word from the Bill introduced here three years ago by Deputy Jim O'Keeffe on behalf of the Fine Gael Party.
Given that the Government has been aware of these difficulties for some time, if the Labour Party last week had not raised the issue of the deficit in the legislation and if Deputy O'Keeffe did not move his Bill this week, how much longer would it have tolerated Irish children being unprotected from evil people who use the Internet to groom them for sexual exploitation? If the issue of the deficit in the legislation had not been raised last weekend, how much longer would Irish children have remained unprotected from the crime of solicitation for sex?
Both issues will be addressed later this evening in the House. In response to the Supreme Court decision in the CC case in May of last year, the Government passed emergency legislation in early June, the Criminal Law (Sexual Offences) Act 2006. On 1 March, Deputy Rabbitte properly identified the deficiency in that legislation in that the new Act did not apply the offence of soliciting or importuning a child for the purpose of the commission of a sexual offence provided for in section 6 of the Criminal Law (Sexual Offences) Act 1993 to the new offence created in the 2006 Act. We have moved to rectify that omission. The House will debate the legislation later.
Section 6 of the 1993 Act is a little-used provision. The Garda Commissioner's annual reports for the past five years do not disclose any convictions for the offence at section 6. However, the Government is not satisfied to leave a gap in our laws governing sexual offences and the protection of children when it has been pointed out, as Deputy Rabbitte has done, lest the absence might in any way hinder or prevent the gardaí, if they wanted to use the legislation, investigating or successfully prosecuting persons for activity that leads to the sexual abuse of children.
A section 6 offence is a summary offence to which the power of detention for questioning does not apply and while, from a purely legal perspective, it is not a matter of urgency to legislate on the issue, it is important to allay public fears by enacting the proposed Bill immediately. That is what we will do.
In the context of its Private Members' Bill, Fine Gael raised the issue of the sexual grooming of children. As I said yesterday, we have examined that issue. It seemed to us, and our legal advice is, that the Fine Gael amendment is fine, so we have included it in the Bill we will pass later today. The Fine Gael Bill is based on section 15 of the UK Sexual Offences Act 2003, under which it is an offence to meet a child following sexual grooming. We are preparing a more comprehensive Bill which will cover a number of these issues — the criminal law (trafficking of persons and sexual offences) Bill, about which Deputy Kenny asked a number of times. The problem is that the Bill is not likely to be ready until Easter so, as it is best to enact this measure, we have taken the Fine Gael proposal and included it in the Bill which will be passed later today.
I welcome the publication of the Bill, about which there has been no contact with the Fine Gael Party.
Last year, the Taoiseach went to the United Nations on official business while the Tánaiste conducted business here. Following the release of the child rapist before rearrest, the people of the country were convulsed with horror at what was happening, and they took to the streets in huge numbers because of their concern. The people expect Government, with all its resources and legal potential, to be able to deal with these matters, but this is not what happened with this Government. But for the fact that Deputy Rabbitte and his party exposed this gaping hole last week, the matter would continue to drift.
The Private Members' Bill put forward by Deputy O'Keeffe on behalf of the Fine Gael Party deals conclusively with predatory Internet grooming. I accept the Government has come forward with the two sections of the Bill, which is to be welcomed.
As the Taoiseach knows, when one talks to people throughout the length and breadth of the country, from Dublin to Kerry, and asks them about this matter, they are absolutely appalled that the Tánaiste and Minister for Justice, Equality and Law Reform, the deputy leader of the Government, would suggest that soliciting a child for sex was a minor offence. How in heaven's name could anybody see that as other than a Minister being completely out of touch when what is at stake is the destruction of innocence and the permanent desecration of childhood? He called it a minor offence.
He is the deputy leader of the Government. Does the Taoiseach consider it a minor offence? Is the Taoiseach prepared to say, on behalf of the Government, which, after all, is supposed to make collective decisions, that this was a wrong and inappropriate comment by the Tánaiste? Is he prepared to say, on behalf of the Government, that he is sorry for any offence caused to the Irish people by such a remark?
If he thought it was a minor offence, the Tánaiste would not be introducing the legislation. Although it is not a section that has been used, it is clearly not a minor matter and that is not the impression the Tánaiste gave in the discussions I had with him. The Government is not satisfied to leave any gap in our laws governing sexual offences and the protection of children because, although the Garda has not used this, it could hinder a successful investigation or the prosecution of persons for activity that leads to the sexual abuse of children. Therefore, it is right that we close it off immediately, on the first Dáil day since the matter was raised by Deputy Rabbitte last week.
As I said, a section 6 offence is a summary offence to which the power of detention for questioning does not apply and while, from a purely legal perspective, it is not a matter of urgency to legislate on the issue, it is important to allay public fears by enacting the proposed Bill immediately. This is what the Tánaiste had stated. The legislation being brought before the House today will amend section 6 of the 1993 Act, which was the main Act, by applying the provision to the offences at sections 2 and 3 of the 2006 Act, which was the Act of last June. The opportunity is also being taken to make the section 6 offence an indictable offence, conviction of which would ensure that the offender was placed on the sex offenders register.
The new Bill will mean it will be possible to convict a perpetrator on indictment and the maximum prison sentence ensures it will be an arrestable offence, giving the Garda power to detain suspects for questioning, and will also ensure that certain provisions of the Criminal Law (Rape) Act 1981 will apply to the section 6 offence. These include exclusion of the public from proceedings, anonymity of complainants and the accused, and preliminary examination matters. It also adds the offence to the definition of sexual offences in the Criminal Evidence Act 1992, under which special provisions apply to children giving evidence in sexual cases, and the Sexual Offences (Jurisdiction) Act 1996, under which it will be possible to charge a person resident in the country with a comparable offence committed abroad — that comes under the Bail Act 1997, under which bail can be refused on certain grounds for serious offences. It adds the offence to the provisions of the Civil Legal Aid Act 1995, under which a complainant can receive legal advice.
The point was correctly raised by Deputy Rabbitte. The Government has acted on it. We have strengthened it and taken the opportunity to introduce the Bill. That was the correct thing to do and it was correct for the Tánaiste to move on it immediately.
I welcome the emergency Bill, which is designed, as the Taoiseach stated, to deal with the loophole identified last week. With regard to the reference to "minor", there were 55 prosecutions and 34 convictions under that section in 2000. I am not sure why there have only been a couple each year since then but that was the situation until 2000.
I have a question for the Taoiseach, which it would be helpful for him to clarify before the debate begins. The controversy, as Deputy Kenny correctly noted, arises from the Supreme Court judgment last year in which the court struck down as unconstitutional an offence under the 1935 legislation prohibiting unlawful carnal knowledge of a child. The offence was struck down because it was one of absolute liability. In other words, the offence did not allow a defendant to plead a defence of honest mistake. On last year's legislation — the escapade to which Deputy Kenny referred — reinstating the offence of unlawful carnal knowledge was enacted so as to comply with constitutional requirements as decreed by the Supreme Court. In other words, it recreates the offence but it allows a defence of honest mistake or reasonable mistake to be pleaded. In the meantime a referendum has been proposed which would, if passed by the people, enable the Oireachtas to include a defence of honest mistake. The Oireachtas could then legislate to create a zone of absolute protection for children. Until the referendum is passed, however, any legislation introduced in this area must satisfy the current rules, particularly if it concerns a serious offence. It is now proposed to make the activity an indictable offence so the defence of reasonable mistake must be provided for. One response, suggested in a letter I sent to the Taoiseach this morning, would be to proceed with that part of the referendum concerning the protection of children.
The other response is the Bill we are being asked to enact in the House this evening. That Bill reinstates the offence of soliciting and importuning a child for sexual purposes but, given that the Supreme Court has held there must be a defence of honest mistake, is the Taoiseach satisfied such a defence is provided for in the Bill? If he is, can he suggest the section which so provides? As far as I can see the Bill does not make such provision and there is no reference to any defence to the offence in question.
I have not been involved with the Bill in detail so the Tánaiste and Minister for Justice, Equality and Law Reform will deal with the Deputy's last point during the course of the debate. I assume the matter has been well covered but I will raise it with the Minister with a view to clearing it up before the Bill is taken.
I received the Deputy's letter concerning the referendum today and his point about the defence of honest mistake is correct. The Minister of State at the Department of Health and Children, Deputy Brian Lenihan, has received letters from other parties and is meeting with them today. Hopefully we can come to an all-party agreement on the matter this week. I will not reveal the contents of the Deputy's letter, as that is for him to do if he so wishes. However, I note his suggestion and we are examining it.
Can the Taoiseach say if the Attorney General will meet with the spokespersons in advance of the debate? The point I raise needs to be clarified before we start. If a person is charged with soliciting or importuning a child to engage in an act which would constitute an offence under last year's legislation he or she would not be guilty in the event of an honest mistake being made as to the child's age at the time of the offence. That person should not be guilty of an offence under this Bill either. l refer the Taoiseach to section 3(5) of the Criminal Law (Sexual Offences) Act 2006 which states: "It shall be a defence to proceedings for an offence under this section for the defendant to prove that he or she honestly believed that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 17 years". This year's Bill is concerned with activities which take place prior to any sexual activity and a defence of honest mistake would have to be concerned with the defendant's state of mind when the offence is committed but that is not clear. I ask the Taoiseach or, if the Taoiseach is unable to deal with it, the Tánaiste, if he is satisfied and has received legal advice that it is not necessary for a subsection allowing a defence to proceedings under this Bill of a genuine belief that the other person was of age at the time of the alleged offence.
Can the Taoiseach tell the House whether there have been consultations with the Ombudsman for Children? Have there been consultations with that extraordinary creation of last summer's tumult, the two special rapporteurs we were told would ride shotgun on the issue? Have they been asked whether any infirmity exists in the Bill to be brought before the House this evening?
The Bill is being taken in the House in one and a half hours' time. The contents of the Bill before the House, including the precise legal points to which the Deputy refers, can be discussed during the debate. Deputy Rabbitte asked for clarification on section 3(5) in the Criminal Law (Sexual Offences) Act 2006 before the debate and I will ask the Tánaiste to clarify that to the Labour Party spokesperson. We have consulted on the defence of honest mistake with all bodies in the field on the review of the Constitution which we have undertaken since last autumn. There has been wide consultation not only with the Ombudsman for Children but with the rapporteurs and other NGOs in the area. The Tánaiste can deal with the issue of consultation in the last few days. I will ask the Chief Whip to ask the Tánaiste's office or the Attorney General to clarify his points raised.
Many people will have seen the very dignified appearance by Mrs. Christine O'Toole on RTE last night. Mrs. O'Toole is the mother of the young man, 24 year old Derek O'Toole, who was tragically killed on Sunday morning in Lucan in a road accident. She complained validly about the spin created in a number of media outlets yesterday to the effect that her son was "known to the gardaí". That is a code for having a criminal record or for being a person of ill-repute, neither of which is true. I make no judgment on what happened, subject to a full investigation, but members of the Garda Síochána were involved in the tragedy. There is a suspicion that when members of the Garda Síochána are involved in such incidents a spin is put to the media, anonymously and from unattributed sources, to secure a prejudgment on issues that arise in the case with a view to minimalising the responsibility of the gardaí involved. I previously raised the question in the context of the tragic killing of John Carthy in Abbeylara, who was the subject of disgraceful leaks from inside the Garda Síochána.
What is the view of the Government on the systematic and unattributable briefings by members of the Garda Síochána, sometimes by very senior officers, in respect of issues concerning citizens' good names? Are such briefings acceptable or should they not be allowed to continue? Does the Taoiseach agree that there must be a full and independent investigation on foot of the circumstances in which Derek O'Toole died?
I sympathise with the parents and family of the late Derek O'Toole on his untimely and tragic death. I completely agree with Deputy Higgins's point that it is regrettable that initial reports from an unnamed source attempted to put Derek's character at issue. A full Garda investigation, headed by a superintendent, is under way. When it is completed, a file will be forwarded to the Director of Public Prosecutions who is an independent officer. It will be he who will make a decision on any further action required. It is important, both for the relatives of the victim and the persons in the car involved, that the investigation is allowed to take its course. It does no one any service to jump to conclusions in respect of matters of this nature.
I am advised that, as part of the Garda investigation, the scene of the collision has been examined and that the car involved has been technically and forensically examined. The driver of the car was an off-duty garda. He underwent a breath test which showed him to be below the legal limit. I am also advised that, following a post mortem, there is no evidence to suggest Derek had been assaulted or that another vehicle was involved. We hope the investigation will bring clarity for everyone involved.
I welcome the appointment by the Garda Síochána of a nominated officer to act as liaison between the force and the family. More than anything else, however, I sympathise with the parents and family of Derek O'Toole on his death. I condemn any attempt to place his character at issue in any way.
All Members will join the Taoiseach in extending their sincere sympathy to Mr. and Mrs. O'Toole and the family on what was an appalling tragedy. I cast no reflection on anyone involved in the investigation but in cases of this nature provision should be made for an independent investigation to be carried out by competent persons outside the Garda Síochána.
The Taoiseach did not comment on one of the central points I made, namely, the tendency for sources within the Garda to be in regular contact with certain journalists and put a spin on stories from their point of view, which can often reflect on the character of citizens who may have been involved in particular incidents. There were examples of this recently which gave rise to the danger of people rushing to judgment and impugning the good name of innocent individuals before investigations were completed and judgments arrived at. Gross exaggerations also appeared in the media regarding the nature of incidents that occurred and these later proved to be without basis. The Garda should not be involved in such leaks and the Taoiseach should state this.
I inquired as to whether the leak came from officers on duty in the Garda press office on duty at the time of the tragedy or from any of the officers who attended at the scene and I received assurances that it did not. It came from what were referred to as "anonymous sources". If Deputy Higgins is asking me to condemn such sources, I would be obliged to do so every minute of my life. In this instance, the anonymous sources involved were extremely unhelpful to the O'Toole family and I condemn them. I reiterate that, as I understand it, the leak came from neither those who investigated at the scene of the accident nor from those on duty in the Garda press office when it occurred.