Michael McDowell (Dublin South East, Progressive Democrats)

The purpose of this short Bill is to remedy an error in the Criminal Law (Sexual Offences) Act 2006. The point we were dealing with last week in the Dáil was brought to my attention by Deputy Rabbitte, for which I thank him. While the error he pointed out is not as significant as has been claimed in many quarters, I have decided to act quickly and decisively to ensure the legislation on the Statute Book is as the Oireachtas intended it to be.

The error in question, which made section 6 of the 1993 Act inapplicable to offences under the 2006 Act, arose due to a drafting error for which I am politically accountable. It was a summary, not an indictable, offence. Whereas the Constitution categorises all summary offences as minor offences, it worried me that the statutory offence of asking a child to engage in a criminal activity of a sexual nature had inadvertently been deactivated as a consequence of that error last year. To understand the reason for the offence at section 6 in the 1993 Act one must look at section 7, which deals with soliciting or importuning for the purpose of prostitution. Before the 1993 Act there had been no provision similar to section 6.

When the 1993 Act was being drafted it was thought that some type of soliciting might not be caught by section 7 and that it was advisable to bridge a potential gap by protecting children and mentally impaired persons from being solicited in circumstances which would not amount to prostitution. While the fact that section 6 was enacted is evidence of changing times and of greater awareness of the dangers of child sexual abuse, it still is the case, somewhat mysteriously, that it was enacted as a summary offence only, whereas many people would consider it a serious offence to ask a child to engage in an act which would amount to a criminal offence. The reason it was made a summary offence was that it was considered just a different species of the statutory prohibition against what is loosely referred to as "kerb crawling". It was not intended to be a major bulwark of the law protecting children at the time. It was a summary offence prosecuted in the District Court.

The significance of it being a District Court offence is that no jury trial would be available to somebody prosecuted for it. There are strict time limits in the District Court whereby offences must be prosecuted within six months of their occurrence. In addition, there are limits on the types of penalties that can be imposed. It was not, as has been contended, one of the chief defences for children against child sexual abuse. Nonetheless, it is an important offence and that is why we decided to upgrade it to an indictable offence so certain consequences would follow.

The offence will be capable of being prosecuted at any time. There will not be a time limit, subject to natural and constitutional justice, in respect of the period after which a prosecution can ensue. Second, because it carries a penalty of a five year term of imprisonment, it will be an offence which will be capable of being the subject of detention for questioning, which was not the case with the offence in its original form. Third, the penalties will be far bigger. There is a five year term of imprisonment as opposed to 12 months. In serious cases, a jury trial will be available as it will be an indictable offence.

When this was a summary offence we did not provide for anonymity of complainants, clearing the court and a series of actions one would expect to follow in cases of this nature. We are taking the opportunity in this legislation, given that we are upgrading it to an indictable offence, to provide the ancillary protections and procedures, such as children giving evidence by video link and so forth, which was never the case when it was a District Court offence. The House should bear that in mind.

The offence in section 6 was created in 1993 as a sub-species of soliciting which was a prostitution offence at that time. It was made a summary offence and was not intended to be one which would ever be tried before a judge and jury. It was not intended to attract serious penalties and it did not carry with it a series of protections, such as the right of a child victim to independent legal advice or to give evidence over a video link. It did not provide for a right to anonymity for the child or the accused. None of these existed with regard to this offence. Furthermore, it is significant, bearing in mind some of the amendments that were made in this House, there has never been in respect of this offence any statement as to whether a defence based on the absence of honest belief was or was not material. That has never been part of the law with regard to this issue. I will return to that later.

Section 2 of this Bill effectively re-enacts the original offence but makes it an indictable offence. Section 3 adapts a number of provisions in a number of statutes to provide that the rules of excluding the public from the court, preliminary examination, restriction of evidence and anonymity will apply in these cases. It also allows for separate legal representation and legal advice in the circumstances envisaged by the Act of 2001. Section 4 provides for the child being able to give evidence through a television link or through an intermediary. These provisions are required if we are to deal with this as a serious, indictable criminal offence.

The second Act being amended is the Sexual Offences (Jurisdiction) Act 1996, which made it possible to charge in the State persons who are Irish citizens who are ordinarily resident here who are alleged to have committed sexual offences against a child in another country. The offence of solicitation will now be both a territorial domestic offence and an extra-territorial offence, where somebody goes on holiday as a sex tourist, to use that horrible phrase, to a place outside the jurisdiction and solicits a child for sex. It will be an extra-territorial offence. The Bail Act will also be amended to make this one of the serious offences in respect of which bail can be opposed in the case of somebody likely to re-offend.

The fourth Act being amended is the Sex Offenders Act 2001, which contains a long list of offences. This offence will be subject to the sex offenders register for the first time. Some people appear to think that this was always the law but it was not. I hope the House will appreciate that we are not simply reinstating this offence. We are upgrading it to an indictable offence and we are providing the full panoply of legal provisions in terms of ancillary protections and procedural matters, as well as extra-territorial application. We are including it with other serious offences against children for the first time.

Section 5 amends the penalties for attempting to have sex unlawfully with a person under 17 years of age. Last year when we legislated on this matter we provided low penalties for attempt, based on the 1935 Act. However, it would be remarkable if the penalty for soliciting a child attracted a more severe penalty than attempting to do the act upon the child. It was felt that if this was to be made a serious offence of soliciting, making it indictable with a five-year penalty, it would be absurd to have a four-year penalty for somebody who attempted the act.

A controversy cropped up about this which should never have. It has been suggested this legislation is infirm because it does not deal with the question of honest belief as a defence. It has been suggested that it is a mistake not to include this in the Bill. Nothing could be further from the truth. The Attorney General considered this at length and came to the view that it would be wrong to insert in this, as with other offences, a particular formula based on a defence of honest belief. Why is that the case?

The CC case, with which we had to deal last year, was based entirely on the particular legislative history of defilement of females. The Supreme Court held in the CC case that it was the clear intention of the Oireachtas to abolish the defence of honest mistake. It was not capable of being interpreted otherwise, having regard to its legislative history. In the same Act, the offence of indecent assault on a young person was entirely silent as to honest belief. The Supreme Court said that in that case there was no problem since it was capable of a constitutional construction and it would imply the ordinary rules of mens rea to it. Mens rea, the guilty mind doctrine, applies to all serious offences in our law, with very few exceptions.

If it is made a criminal offence to have sex with a person of a particular age, then no one should be in prison as the law and the Constitution now stand if there is a reasonable doubt as to whether that person actually knew the age of the person with whom he or she was dealing. If there is a reasonable doubt as to a person's guilt, the Supreme Court has said in the CC case, that a system must be in place in which he or she cannot be convicted. That is proof beyond reasonable doubt. There cannot be a proof on the balance of probabilities. It must be proof beyond reasonable doubt.

If the Houses agree to put a referendum to provide for cases of absolute or strict liability concerning sexual offences against young persons and it is adopted, and if we introduce a category of offences — a zone of absolute protection — under the Constitution, reversing the decision in the CC case, it will be possible for the Houses to enact laws which cast on the accused all the risk of engaging in any sexual behaviour with a young person. It will cast guilt on the accused person if he or she gets the age of the young person wrong.

The Attorney General considered it before the Bill was presented and has provided me with judicial dicta on the subject. The situation that now obtains is that the offence, like the offence of sexual assault which is a major plank of our law in the defence of children and where there is no mention of honest belief, will be construed by the courts as requiring a guilty mind to be shown by the prosecution as is normal in all of these offences.

The case has been made that we must now include the defence of honest belief in all offences of sexual crimes against children in order to proof them against constitutional challenge. That is not the case. No serious lawyer believes that should be done. Every Act is construed constitutionally. If it is a necessary constitutional ingredient of criminalising any serious offence that it should be proven the accused had a guilty mind — in this case the accused did know the person was under age — every Act of the Oireachtas will be so construed by the courts. It is not necessary to put a defence of honest belief into every offence.

The proof of the pudding is that section 6, inadvertently deactivated in respect of certain sexual offences, did not mentioned honest belief. The offence of sexual assault — indecent assault as it used to be called — does not mention honest belief as a defence. The courts impute that to the offence and the Supreme Court has said this is part of our fundamental constitutional jurisprudence in offences of this kind. It is not necessary for the Oireachtas to stamp all offences which relate to age differentiated cases with a particular defence set out in statute form to proof them against constitutional challenge. Every Act of the Houses is presumed to be and construed in a manner consistent with constitutional requirements.

The points raised by Deputy Rabbitte in the Dáil were examined in advance by the Attorney General. The Attorney General came to the conclusion it would be an error to insert these offences on a comprehensive basis right across the law on sexual offences against minors. He drafted the legislation on this basis. He has examined the matter since Deputy Rabbitte made the point and he is stronger in his view that it would be a fundamental error to claim all our laws are open to challenge because they do not mention the honest belief defence. That is not the law and it would not be a proper way to go about our business.

I presume bright, intelligent and industrious people in the Labour Party's backrooms were going through——