Paschal Donohoe (Dublin Central, Fine Gael) | Oireachtas source

I was wondering how long I would have to wait for that reference to be mentioned so I thank the Acting Chairman for getting it in quickly during my first appearance before the Seanad. I am delighted to be present today, taking this issue on behalf of the Minister for Justice and Law Reform, Deputy Alan Shatter.

Like many Senators who will speak on this topic I wish we were handling a directive on legislation in respect of an issue that was lighter and less evil than this one. Members may have taken a moment to look through the directive we are discussing, the full title of which is, "On combating the sexual abuse and sexual exploitation of children and child pornography", and the replacement of a particular Council framework decision. When one looks through the detail the directive is obliged to contain, and the kind of evil it refers to, it brings into sharp focus the need for effective legislation in this area and having a strong approach from national parliaments and the European Union in order to respond to the targeting and treatment of our most vulnerable people.

The Minister, Deputy Shatter, asked me to send his apologies to Members for not being able to handle this issue with them. I will pass on to him all the comments Senators will make in respect of this directive and the more general issue of the sexual and other abuse of children. This is a crime of the most vile nature. To target our youngest and most vulnerable people in the way many of us are aware of is the worst kind of crime to which a human being can stoop. This directive is about putting in place a co-ordinated, effective and cohesive response to this crime. It looks to putting in place a multifaceted approach to deal with the evil of sexual abuse and the sexual exploitation of children.

Members may be aware that in recent years the Minister, Deputy Shatter, has steered two very important pieces of legislation through the Houses of the Oireachtas on this issue. The first of these - the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Bill - was enacted in August, 2012 and introduced very important measures designed to deal with the issue of abuse not being reported and the consequences of same. The second - the National Vetting Bureau (Children and Vulnerable Persons) Bill - was enacted in December, 2012 and provided for the mandatory vetting of persons working with children or vulnerable adults. During the course of the debate I will come back to both of these in more detail later.

The Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, has also launched revised child protection guidance titled Children First: National Guidance for the Protection and Welfare of Children and has received Government approval to put the guidelines on a statutory footing. This is a key commitment in the programme for Government. The Children First Bill is viewed as a part of a wider package of measures, along with the vetting and withholding Acts, to which I have referred, further ensure the protection of children and vulnerable persons from sexual abuse and exploitation.

The Minister is also pressing forward with arrangements to ensure the effective implementation of the Children First guidelines across all Departments, agencies and sectors that have contact with children, and with the reform of child and family services in the Health Service Executive leading to the establishment of a new Child and Family Agency. The draft directive was tabled by the European Commission in March, 2010. In June of that year, following approval by the Dáil and Seanad, the Government exercised its option under the Lisbon treaty to take part in the adoption and application of the measure. The directive was adopted by the Council and the European Parliament in December 2011 and the member states are required to bring into force the laws, regulations and administrative provisions necessary to comply with the directive by 18 December 2013.

The directive seeks to establish minimum rules concerning the definition of criminal offences and sanctions in the area of sexual abuse and sexual exploitation of children, child pornography and solicitation of children for sexual purposes. It also contains measures to strengthen the prevention of such crime and, most important, the protection of its victims. Many of the minimum rules in terms of offences are already in place in Ireland and sanctions, in many cases, far exceed the requirements of the directive. This is due to our generally high penalty regime and is best illustrated by example. Article 3.4 of the directive requires the member states to punish engaging in sexual activities with a child who has not reached the age of consent by a maximum term of imprisonment of at least five years. Under section 2 of the Criminal Law (Sexual Offences) Act 2006, a person who engages in a sexual act with a child who is under the age of 15 years is guilty of an offence and liable, on conviction on indictment, to imprisonment for life. The maximum penalty in section 3 of the 2006 Act for the offence of defilement of a child under the age of 17 is five years imprisonment and that maximum penalty increases to ten years where the offender is a person in authority. In another example, article 5.4 of the directive requires the member states to punish the distribution, dissemination or transmission of child pornography by a maximum term of imprisonment of at least two years. In this jurisdiction, a person found guilty of producing or distributing child pornography is liable, if convicted on indictment, to imprisonment for up to 14 years. Many of the measures included in this directive have already been transposed into domestic law and in the small number of areas that we do not the Government has a clear plan in place regarding implementation. This leads on the legislation that will come before the House in the near future.

The first and most crucial legislation in this area is the forthcoming sexual offences Bill. The legislation will be broad and wide-ranging. As well as implementing outstanding criminal law measures in a number of international legal instruments, including the EU directive, it will implement the recommendations of two Oireachtas committees, amend the Sex Offenders' Act 2001 and reform the law on incest. That is a key point I draw to the attention of Members. Most of those areas that we currently do not have transposed into domestic law will be dealt with in the sexual offences Bill in the near future.

The other international instruments to which I referred include the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse and the Optional Protocol to the UN Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. The criminal law provisions of the EU, Council of Europe and UN instruments overlap to a significant degree.

I wish to highlight a selection of measures in this area which should be of particular interest to the House. Article 16.2 of the directive provides that member states shall take all the necessary measures to encourage any person who knows about or suspects that an offence in the directive has been committed to report this knowledge or suspicion to the competent services. The primary purpose of the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012 was to close a loophole in the law. Under the Offences Against the State (Amendment) Act 1998 it was an offence to withhold information in respect of a serious criminal offence. However, that provision excluded sexual offences. The withholding of information legislation was enacted to ensure there is an obligation on persons who have knowledge of any serious offence, including sexual offences against children or vulnerable adults, to inform the Garda.

Article 10 of the directive contains measures relating to disqualification from employment of persons convicted of sexual offences. The National Vetting Bureau (Children and Vulnerable Persons) Act 2012 provides the necessary statutory basis for the use of the Garda criminal records database to conduct vetting of persons applying for employment which entails working with children or vulnerable adults. The schedule to the Act lists in detail the types of work or activity that require vetting. These include child care services; schools; hospitals and health services; residential services or accommodation for children or vulnerable persons; treatment, therapy or counselling services for children or vulnerable persons; provision of leisure, sporting or physical activities to children or vulnerable persons; and promotion of religious beliefs.

The Act also provides for the use of "soft" information in regard to vetting. This is referred to as "specified information". Specified information is information other than a court determined criminal record. For example, it includes conclusions from investigations of child abuse or neglect conducted by the HSE, where such investigations have concluded that a person poses a threat to children or vulnerable persons. Specified information also includes similar conclusions arising from fitness to practice inquiries by statutory bodies, such as those conducted by the Medical Council, the Nursing Council or the Teaching Council. In addition, it includes a bona fide concern that a person poses a threat to children or vulnerable persons, where this arises from a Garda investigation of a criminal offence. Members may be aware of some of the difficulties that can occur in respect of the time required to complete the vetting process. Constituents who are seeking to take up positions that require vetting under the legislation have come to me. Sometimes the vetting processes takes a longer time than they would wish and this can sometimes cause difficulties for them in respect of the employment they wish to take up.

The Department of Justice and Equality is doing all it can to ensure the processing times for these applications is appropriate and is dealt with as promptly as possible. I am aware when talking to constituents on this matter that we are all agreed that for this work to be done properly, it takes time to do it. It is important that anybody who is moving into a role in which he or she will be dealing with children or vulnerable persons in the agencies referred to would undergo the appropriate supervision and checking to ensure he or she has the correct qualifications, character and record for dealing with our most vulnerable.

About 300,000 vetting applications are processed by the Garda vetting unit each year and the primary purpose of theNational Vetting Bureau (Children and Vulnerable Persons) Act 2012 is to put into clear law the procedures that have been developed to vet these applications. More important, the Act makes it mandatory for persons working with children or vulnerable adults to be vetted where this was previously done on the basis of a voluntary code. The Act also includes offences and penalties for persons who fail to comply with its provisions. In addition to the vetting legislation, under the Sex Offenders Act 2001, a person who is on the sex offenders register commits an offence if he or she fails to disclose to an employer or a prospective employer a conviction for sexual offence specified in the Schedule to the 2001 Act.

The directive also refers specifically to websites containing or disseminating child pornography, and I want to refer to some of the articles in the directive on this area. Article 25, in particular, provides for measures against websites containing or disseminating child pornography. Paragraph 1 provides for the removal of websites containing such material. In Ireland, a hotline.ie service already provides for the removal of illegal material. It has performed very well and has had some notable successes in fighting this scourge. I acknowledge the significant expertise and prowess of the Garda Síochána and particular sections within the force that are charged with dealing with these terrible websites. I stress the importance of international co-operation and working effectively with the right international organisations in these areas. This crime, as we are only too sadly aware, stretches across borders, and one of the most effective ways to deal with it is by a response that also goes across borders. To do that, international co-operation is essential.

Paragraph 2 of Article 25 is concerned with blocking access to sites containing or disseminating child pornography. Discussions on the establishment of structured arrangement for the blocking of access to websites containing child pornography are at an advanced stage between the Garda and Internet service providers. This will provide us with a mechanism that fulfils the requirements of the second part of Article 25. I urge Internet service providers, ISPs, the people charged with the provision of Internet service in our State, to continue to live up to their responsibilities in dealing with this area. I repeat that co-operation with other law detection and law enforcement agencies is essential. The only way of preventing the development and spread of these websites is by the ISPs and the companies associated with them working effectively and coherently with the Garda and other bodies. The arrangement being discussed will involve close co-operation between the Garda and Internet service providers. It will be based on a written arrangement and clearly laid out procedures between the different bodies. Under the proposed arrangements, the Garda will identify sites and, when satisfied that the material is child pornography and therefore illegal, will notify the ISP of the site or sites in question. The ISP will then act in accordance with the agreed arrangements to block access to the site or sites. The Garda will have the benefit of its links with other police forces and international policing organisations, such as Interpol and Europol, in seeking out and identifying sites.

Other key provisions in the directive concern the sensitive handling of police investigations into alleged sexual abuse and exploitation. One requirement is that interviews with child victims take place, where necessary, in premises designed and adapted for this purpose. The investigation of sexual offences against children requires an especially sensitive and thoroughly professional approach. There have been considerable advances in recent years in the way in which the criminal justice system deals with cases of child sexual abuse. The Garda Síochána puts a particular emphasis on tackling sexual crime and other crimes against children, as well as proactive co-operation with all relevant Departments, organisations and agencies to improve the safety of children.

In April 2010, the Garda Síochána published a comprehensive policy on the investigation of sexual crime, crimes against children and child welfare, the aim of which was to combine professionalism with sensitivity and compassion in the investigation of sexual crimes. Children First: National Guidelines for the Protection and Welfare of Children 2011 has been adopted as Garda policy, and interaction with the HSE and children and family services is an integral part of that policy in relation to all investigations of child abuse. A strategic committee has been established within the Garda Síochána, chaired at assistant commissioner level, to liaise with the HSE's national director of children and family services to ensure that all matters of strategy and policy in the field of inter-agency working receive proper direction.

A sexual crime management unit has been established within the Garda domestic violence and sexual assault investigation unit, which is part of the National Bureau of Criminal Investigation. The unit is responsible for evaluating and monitoring the number of investigations each year into child sexual abuse, child neglect and other sexual offences to ensure they are receiving appropriate attention. It is also responsible for advising on the investigation of such crimes and promoting best investigative practice.

Members of the Garda Síochána and HSE personnel have undergone joint and intensive training in the specialised skills necessary for interviewing children. Staff of the Garda college, together with their HSE colleagues, regularly review the training to ensure it is in accordance with best international practice. In addition, given the need for sensitivity and confidentiality surrounding sexual crimes, there is a clear advantage from an investigative perspective, both for victims and the Garda Síochána, in conducting relevant interviews away from Garda stations.

A network of dedicated interview suites has been established by the Minister's Department and the Garda Síochána in six strategically chosen locations throughout the State. These are used by the Garda authorities to record interviews with child victims. The roll-out and utilisation of these interview suites is a huge step forward in terms of how child victims of sexual abuse are dealt with by the criminal justice system.

Following the original publication of the Murphy report, Garda policy and practice in this field was the subject of review and recommendations by the Garda Inspectorate, whose report, Responding to Child Sexual Abuse, was published in February 2012. The bulk of the inspectorate's recommendations have been implemented and, in line with a proposal contained in the report, the Minister wrote recently to the inspectorate requesting a follow-up review be carried out focusing on current initiatives and progress in implementing the report's recommendations.

I should also mention, in so far as the investigation of sexual offences generally is concerned, that the Minister for Justice and Equality was delighted last week to be able to publish a Bill to establish the long-awaited DNA database. I have no doubt that, when established, this facility will be of invaluable assistance to the Garda in the investigation of sexual offences and other serious crimes.

With regard to criminal proceedings and Article 20 of the directive, the Minister, Deputy Shatter was very pleased that, in the recently enacted Criminal Law (Human Trafficking) (Amendment) Act 2013, he was able to extend rules relating to the out-of-court video recording of child evidence to new categories of child witness. For human trafficking offences, the upper age threshold for such video recordings was increased from 14 to 18 years, and this facility was also extended to child witnesses, other than accused persons, who are minors. The same extension of child evidence rules for sexual offences will feature in the sexual offences Bill.

The Criminal Evidence Act 1992 already makes provision for a person under the age of 18 years, being a person other than the accused, to give evidence in court proceedings through a live television link.

Finally, I would like to say a few words about education and raising awareness. These are requirements in Article 23 of the directive that address the prevention of sexual abuse and exploitation. The national strategy on the prevention of domestic, sexual and gender-based violence contains a number of actions in relation to education. Under action 3.2 of the strategy, the Department of Education and Skills has developed personal safety materials for the junior cycle social, personal and health education, SPHE, modules. The national steering committee on violence against women was consulted on the materials. The lessons are expected to be rolled out in schools this academic year following the training of teachers and it is anticipated that materials for senior cycle students will be finalised following the roll-out at junior level.

Over the past number of years and pending the development of these materials, the National Office for the Prevention of Domestic, Sexual and Gender-based Violence has provided funding to a number of organisations to provide programmes in schools or to specially train teachers to do so. While most university students are aged 18 or over, some enter third level education before the age of 18. The Union of Students in Ireland represents students across the country. Recently it undertook a research study which was the first of its kind in Ireland. The State funded the study as part of its work to increase awareness of domestic and sexual violence. The study also focused on unwanted sexual experience. It is a significant milestone to fill the gap of empirical evidence relevant to the lived experience of the Irish population in general and for third level students in particular.

I wish to make a number of concluding points on the legislation and give a general policy overview. My first comment is on the transposition of directives and legislation in the area. I hope I have been able to underscore to colleagues that many measures in the directive have already been implemented and brought into national law through the introduction of legislation, and of those that have not, most, if not all of them, will be dealt with in the forthcoming sexual offences Bill referred to in my contribution.

Many of us have been exposed and involved with these tragic cases through work in our constituencies and communities. Therefore, one of the areas that I mentioned at the conclusion of my contribution is of great importance. I am referring to what happens in our schools and what happens with our young people in terms of the education that we give them in terms of their awareness of their own bodies, the clear boundaries regarding unacceptable behaviour and giving them the confidence to articulate that to the people that they trust. Tragically, if that does not happen in their families then we must allow them to understand that there are people in their school, community and other authorities that can be approached and spoken to about the behaviour that they may be subjected to.

Third, I wish to underscore one of the more practical aspects of my contribution. I refer to the recent developments that have taken place to provide appropriate facilities and locations for interviews, discussions and conversations with young people. Those of us who have had occasion to be in Garda stations either due to constituency and pubic representative work or for other reasons, will know what I mean by the following. Regardless of whatever work the gardaí do in terms of presenting an environment and trying to make sure that it is appropriate, we know that it is not the right environment for vulnerable young people who may already be acutely stressed or feel acutely threatened to have a discussion. We know that it is not the right environment within which this kind of discussion needs to take place. I welcome the fact that great work has taken place to provide locations where highly-skilled and trained members of the HSE, the social services and members of the Garda Síochána can treat these alleged issues with the necessary sensitivity and skill.

I am a parent and I am also involved in a school. Therefore, I am aware now of the increase in regulation and domestic legislation regarding how to deal with this issue. We all know, as is the case for any other area of law, no matter how strong and well designed legislation is if it is not implemented effectively and appropriately then it will fail in the intention that prompted its drafting in the first place. That is why the enhanced training that has taken place of many of our professionals who work in the area is welcome. I also want to underscore the importance of the development to provide appropriate locations in order for these discussions and investigations to take place with our children and vulnerable people.

I shall finish on that note and thank the Cathaoirleach for the opportunity to address the House on the legislation. I am privileged to return here as Minister of State in order to address the Chamber given the numbers of years I spent here. I look forward to hearing contributions on the legislation from all of my colleagues and shall do my best to respond to the points raised at the end of the debate. Members can be assured that the officials and I will convey their comments to the Minister and that the forthcoming legislation on sexual offences will deal with some of the outstanding areas. I hope that the legislation will provide a vehicle for continued focus on the area and respond to the concerns, observations and ideas expressed by Members.