Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

Again, I want to thank Senator van Turnhout for raising this matter. It is one on which, in principle, we are all agreed. The issue is how we address it appropriately. On Committee Stage, I said we should deal with it as speedily as possible. I did point out that the issue is complex and requires careful consideration to ensure any proposal in this area correctly balances the constitutional right of the accused to due process along with the privacy rights of the complainant. The Attorney General has advised me that a detailed examination is required to precisely identify and provide for the rights concerned.

I indicated on Committee Stage that I would consider whether it would feasible to bring forward an amendment on Report Stage or on Dáil Committee Stage that could satisfactorily address the issue. It is intended to complete the Bill’s passage before the Houses rise for the summer vacation. I have decided in such circumstances that there is, unfortunately, not enough time to comprehensively address this issue with the careful consideration required. I have come to this conclusion because I believe further consultation is necessary with interested parties to bring forward a robust and workable solution. I also want to allow time for full consultation with the Director of Public Prosecutions to ensure any proposal put forward will work in practice to protect the rights concerned and ensure the effectiveness of the prosecution process. I am also concerned that any proposal in this regard should be comprehensive and address the rights of adult as well as child complainants.

The examination and consultation on this subject, proposed by the Law Reform Commission, would be a suitable way of examining this complex issue. I am conscious that the timeframe for such an examination is not appropriate and more immediate action is required. Accordingly, I have decided this issue will be addressed in the forthcoming sexual offences Bill. I am conscious this legislation has not yet been published due to other areas of legislation we have been addressing and the pressure on the Attorney General’s office. However, it is at an advanced stage of preparation. I expect the Bill to be before the Cabinet after the summer vacation and to be published at the end of October at the latest.

I believe this is the correct approach to ensure a suitable legislative solution is found as soon as possible to resolve the issue. I hope the House will understand I cannot accept the amendment, not because I reject its purpose or value, but because the subject demands a fuller examination. The difficulties in addressing this area are seen by the very helpful approach Senator van Turnhout has taken.

We now have a new version of this proposal. That is not a criticism of it. Senator van Turnhout has tried to address some of the issues I raised of difficulty and complexity. I welcome that and thank her for the work she has done on the provision that we now have. I do not want to take up the House's time going through it in detail. One of the issues I raised the last day, for example, was that this would be better as a pretrial procedure in the most cases. Senator van Turnhout has prescribed it in those circumstances but I did say that, for example, during the course of an actual trial an issue could arise which would indicate that perhaps it would be legitimate for notes to be made available. This provision does not envisage that. I understand it does not because of the complexities involved. This is not easy to draft. There is also the question of treating the accused equally with regard to sexual offences. Despite all of my concerns in addressing this in respect of children, I do think that, for example, an adult could be charged with the rape of a 17 year old or of a 19 year old and have different evidential rules in place with regard to the disclosure of information. That could generate a difficulty in the criminal law area and might create constitutional problems.

Senator Bacik has highlighted another issue which we did not touch on the last time we discussed this Bill. That discussion envisaged, although we did not all necessarily put it this way, a sexual prosecution taking place in circumstances where the court hearing occurred at a time when the alleged victim was still a child, not when the victim was an adult. There is great complexity, a lot of law, a lot of court judgments and a lot of difficulty, for example, in validating allegations of sexual assault going back over the past 20 years. In other jurisdictions it has arisen that someone in their 30s or 40s has gone through a form of counselling and perhaps that individual had difficulties in his or her life and retrospectively realised he or she was sexually assaulted at the age of eight or nine or 12 or 13. There is a lot of literature about genuine memories and recollections or people being conditioned into recalling or believing events occurred in their lives that may not have occurred.

I can well understand Senator Bacik’s approach in saying that perhaps this should apply only in circumstances in which at the time of the prosecution the alleged victim is a child but we do not live in a black and white world. What happens if the prosecution is initiated when the victim is a child but becomes an adult before the case is put to trial? We need an all-encompassing rule in this area that deals with the issue of access to these notes, whether the victim is or was at the time of the assault and prosecution a child, or whether the victim was a child at the time of the alleged offence but is an adult at the time of the trial, or whether the victim first said an offence occurred 20 years after becoming an adult.

We need a consistent and careful legal architecture that seeks to ensure that people who seek counselling are not presented with barriers but seeks also to ensure that there is due process where an accusation is made, and that, on the other side, we have the balance of protecting people's privacy, the need and right they have to have access to help, be it psychological, psychiatric or counselling of another nature, following being a victim in this area. Unfortunately, this is a complicated issue. It is best that we address it comprehensively and that we engage in, and complete, a consultative process. It is my intention that we address it in this sexual offences Bill.

I could well conceive that because the Bill is so advanced we would be at a point where we could publish it as heads of a Bill before we finalise it in the way we have done, where this particular matter has not been completed but work on it will continue and be completed before we publish the Bill in final form. That could well be the case but I want to assure Members of the House that I do take this issue seriously. I am of course aware of Geoffrey Shannon's 2010 report on this issue. I recall raising it when I was in opposition and I hope we get the opportunity to address it. I genuinely thank Senator van Turnhout for what has been an important discussion, one which has probably contributed to ensuring that the matter is not delayed until the Law Reform Commission addresses it but that we do address it within the Bill.

Senator van Turnhout made a very important point in talking about the impact, particularly on children, of repeated interviews by different agencies. That is an issue on which I know there is supposed to be a co-ordinated approach. Repetitive interviews are supposed to be avoided. I will discuss with my colleague, the Minister for Children, Deputy Frances Fitzgerald, the approach taken by the HSE and the new child protection agency, when it is in place, to these matters and the coordinated and cooperative nature of Garda involvement where it is required. There are of course occasions when interviews take place on the social service side, which may involve child protection issues at a time when it may not be immediately clear that gardaí need to be present, or at a time when their presence might be counter-productive. Gardaí may be present and there may be a need on occasion for the HSE to refer the matter to the Garda. There will be instances in the future when it is impossible that there be one set of interviews by social services and members of the Garda. I will also raise this issue with the Garda Commissioner to see, where it is possible, that repetitive interviews be avoided so that a young person who has suffered a trauma and been the victim of an alleged assault does not have consistently to relive that experience.

I am, nevertheless, also cognisant of the fact that not all information necessarily comes out in an initial interview, that individuals may be traumatised, that they may be able only to give limited information but if the problem could result in a criminal law process, in order for that process to take place and for a Garda file to be prepared for the Director of Public Prosecutions, it may well be necessary for a young person, who is the victim of a sexual assault, to be interviewed on more than one or two occasions so that there is clarity about the nature of his or her description of events. Alternatively, if issues arise during the course of an investigation it can well occur that the alleged victim must again be consulted and further questions may arise to ensure that the full background is understood and any inconsistencies that emerge are addressed so that if a file is sent to the DPP it contains the fullest and most comprehensive information possible.