Brian Lenihan Jnr (Dublin West, Fianna Fail)

I entirely understand the spirit in which this amendment has been tabled. If one examines the legislation within its four corners, the obvious question arises of whether one is creating a difficulty by having two distinct offences. First, it should be noted that the offence in section 2 can be committed only regarding a person under the age of 16 at the time. Section 3 can apply only where the child is under 17.

It must be noted that this is new legislation creating new criminal offences. We will later be inviting the Seanad to table a resolution requesting the President to consider whether this Bill should receive an earlier signature. From the moment of signature, whenever it takes place, the legislation will be law. Under the Constitution the Oireachtas can only declare Acts to be infringements of the law prospectively. That is a crucial point regarding our consideration of what is happening and has happened in the Supreme Court in recent days.

We are creating new offences and they will fall to be considered in the context of new practice. Existing practice will not be affected. Those who are familiar with prosecution practices are well aware that it is common practice among prosecutors to lay alternative charges in respect of offences. For example, in the case of persons under the age of 15, it will be open to the prosecuting authorities to lay a count against those persons under both sections 2 and 3 of the legislation. If the victim is aged 15 or 16, the charge can only be brought under section 3 because, by definition, that person is excluded from section 2. The alternative will exist. This is the practice that I anticipate will develop under the legislation. The defence of having made an honest mistake about the age of the victim may well be used by an accused in a particular context involving persons aged 15 or 17.

There is an amount of existing legislation on alternative verdicts and we do not want to disturb it. Section 7(1) of the Bill extends that legislation so the offences listed in the Bill can be the subject of an alternative verdict. My legal advice is that the position Senator Cummins rightly anticipated in his amendment is dealt with adequately in the legislation. If one reads the Bill on its own terms, his point is obvious. If, however, one considers it in the context of existing legislation one will note that it is addressed.