Seán Haughey (Dublin North Central, Fianna Fail)

I take the Adjournment matter on behalf of my colleague, the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern. I thank Senator Fitzgerald for raising this important issue.

Any abuse of children must be condemned in the strongest possible terms and using children to commit crimes is abuse. I will outline the strategy of the Garda Síochána in dealing with gun crime and drug trafficking and then outline the present legislation governing the type of activity referred to by the Senator. Of course, if the Minister for Justice, Equality and Law Reform becomes aware that the legislation in place is not adequate, he will not hesitate in introducing new measures.

One of the main priorities set for the Garda Síochána is to target gun crime, organised crime and drug trafficking through a range of measures, including the use of the Garda specialist units and targeted operations such as Operation Anvil. Operation Anvil commenced in the Garda Dublin metropolitan region, DMR, in May 2005 to deal with such serious crime and it was extended nationwide in 2006. The primary focus of the operation is the targeting of active criminals and their associates involved in serious crime by preventing and disrupting their criminal activity through extensive, additional, overt, visible patrolling and static checkpoints by uniformed, mobile and foot patrols, supported by armed plain clothes patrol.

Under Operation Anvil, up to 18 January 2009 more than 2,200 firearms were seized, including 1,220 in the Garda DMR. There have been more than 7,300 arrests for the serious offences of murder, serious assaults, robbery and burglary. More than 69,000 searches have been carried out related to firearms, drugs and theft. Property to the value of almost €31 million has been recovered.

An allocation of €20 million was provided for Operation Anvil in 2008 and a provision of €21 million in 2009 will enable the Operation to continue with targeted disruption of serious and organised criminal activity throughout the country.

Garda activity in pursuing criminals and preventing criminal acts is and will continue to be relentless. Recently, several successful operations have been carried out by the Garda to deal with such crime. The force will continue to respond as appropriate to developing situations.

The criminal law has been considerably strengthened, for example, by making it more difficult to get bail in drug trafficking and firearms cases. The periods for which the Garda can question people suspected of involvement in serious crime have been extended, and the law on the right to silence has been updated.

The Government has approved proposals by the Minister for Justice, Equality and Law Reform to introduce new legislation underpinning the use of covert surveillance methods principally by the Garda. Under the legislation, the State will be able to use collateral material obtained by means of covert surveillance as evidence to support or strengthen the case for the prosecution at a criminal trial.

For the information of Senators, I now will outline briefly the present law and its origins with regard to offences committed by children with adult involvement. Section 52 of the Children Act 2001 provided for a raising of the age of criminal responsibility to 12 years. Under the common law, it had for centuries been seven years, that is, the age at which a child is supposed to be able to distinguish right from wrong. It also provided for a rebuttable presumption that a child between 12 and 14 years of age was incapable of committing an offence. The implications for opportunistic and unacceptable abuse of children by adults within the criminal justice system of the enlightened policy on the age of criminal responsibility was clear. Therefore, section 54 of the Act provided that where a child under 14 years of age was responsible for an act or omission which, but for section 52 would constitute an offence, any person who aided, abetted, counselled or procured the child in or in respect of that act or omission committed an offence and could be indicted, tried and punished as a principal offender.

The provisions on the age of criminal responsibility did not come into operation immediately but came into operation following some changes made in the Criminal Justice Act 2006. The ancient common law rule governing the age of criminal responsibility was abolished in the 2006 Act and replaced by statutory provisions under which, in most cases, a child under 12 years of age is regarded as capable of committing an offence but cannot be charged with or convicted of the offence. This meant that section 54 of the 2001 Act was superfluous and accordingly was deleted. The position now is that the general law with regard to assisting offenders applies to adults who aid, abet, counsel or procure the commission of an indictable offence, no matter who commits the offence. They can be tried and punished as a principal offender. It does not matter that a child cannot also be tried and punished, it is enough that he or she committed the offence. In such circumstances, while the adult is charged with an offence, a range of alternative interventions are available in the case of the child, if required, ranging from admission to the Garda diversion programme to HSE involvement.

Finally, I wish to say a few words about a subject that is not directly covered by the text of the Adjournment matter but is related, that is, sexual grooming. Under the law as set out in the Criminal Law (Sexual Offences) (Amendment) Act 2007, it is an offence to meet a child for the purpose of sexual exploitation following grooming, whether or the Internet or otherwise. The Minister for Justice, Equality and Law Reform at present is preparing further sexual offences legislation in which he intends to improve on that provision. He also is examining whether it would be possible to provide an offence of actual grooming, in particular where the grooming has taken place using a communications device, such as a telephone or the Internet. If a form of words can be found that is fair and proportionate and does not criminalise normal and non-sinister communications, he will provide such an offence in the forthcoming legislation. The draft legislation is at an advanced stage of preparation but I understand the Minister at present is reviewing other aspects of the criminal law governing the protection of children against sexual abuse and exploitation for inclusion in the Bill, such as electronic monitoring and incest.

I again thank Senator Fitzgerald and assure her that both the Garda Síochána and the Minister take very seriously the procuring of children to commit offences on the basis that they will be dealt with leniently by the authorities. I assure her that the adults will not be dealt with leniently and if more legislation is needed, and the present view is that it is not, it will be forthcoming.