Derek McDowell (Labour)

I hope Senator O'Toole will report that to him. I make the point that when introducing that legislation in 1993, the former Minister for Justice, Máire Geoghegan-Quinn, made significant changes across the sexual offences area, including prostitution and other matters. Hence, given that a major piece of sex offence legislation was enacted after the Law Reform Commission's proposals were made, it is strange for people to argue that laziness or indifference left the 1935 Act untouched. This is not the case. At the time, no one wanted to touch it. As for all the successive pieces of legislation relating to sex offenders which have gone through both Houses, I reiterate my point, subject to being corrected in respect of this House, that no one has ever proposed an amendment to section 1 of the 1935 Act. Moreover, no one has ever suggested, in an amendment tabled in either House, that there should be provision for an honest mistake.

I wish to make another point regarding an issue raised by several Members, including Senator Jim Walsh. I refer to the concept of double jeopardy. If someone has been brought to prison, having been convicted under section 1(1) of the 1935 Act, people might query whether it would be fair to bring that person back again, prosecute him or her a second time and have him or her serve another sentence. That is a good point. However, the flip-side — and the reason it is a good point — is that the person would have served the time for the offence and would have believed at the time that it was a valid offence. That cuts both ways. If it is wrong and outrageous to regard as a nullity the sentence imposed on a person who is now free having served his or her sentence and to start again, by the same logic it is equally wrong and outrageous that someone who has not yet served his or her time can state this is a fiction and has no reality, and that one's plea meant nothing.

I make the point that what is sauce for the goose is sauce for the gander in this regard. If it is wrong to put someone in double jeopardy, then it is equally wrong to have someone with zero jeopardy for an offence which he or she has admitted.