James Browne (Wexford, Fianna Fail) | Oireachtas source

I thank Senators Flynn, Higgins, Ruane and Black for bringing forward this very important Bill. I understand it is Senator Flynn’s first Bill. I congratulate her hugely on bringing forward this very important legislative contribution.I want to acknowledge the very genuine intentions of all of the sponsoring Senators in bringing forward this Bill.

The objective of this Bill is to remove from the Statute Book language that is outdated and fails to reflect the full horror of the sexual abuse involved in images of child sexual exploitation. In her remarks, Senator Flynn has eloquently explained why the language that is currently used on the Statute Book is problematic, at the very minimum, and why it should be and needs to be changed. I fully agree with her.

Senator Flynn has correctly stated the importance of the use of correct and appropriate language. Images of child sexual abuse are not “pornography”. Pornography is a term used for adults engaging in consensual sexual acts. As Senator Ruane has outlined the etymology of the language as well. The either-or definition is not appropriate for what this is. These are child sexual abuse images. They are images of appalling crimes committed against vulnerable children. They involve children who cannot and would not consent, and who are victims of a crime. Such images are not only a record of the initial crime perpetrated against the child but the images themselves continue to harm and victimise the child each time they are shared or viewed. I agree with the Senator that it is important that we name such images for what they are - images of child sexual exploitation. For this reason the Government is not opposing the Senator's Bill today.

As Senator Seery Kearney rightly pointed out, this is not just an issue of semantics. Equally, Senator Ruane pointed out that language should be clear and accessible, especially in these Houses. Linguistics are important and can be determinative. Senator O'Loughlin also put the situation into a wider context of concerns about the over sexualisation of young people. This is not the first time that this issue has been raised. Officials in my Department, and in the Office of the Attorney General, have previously considered how it can be addressed. Appealing as it may be to propose the straightforward replacement of the offending words with more appropriate terms, it is unfortunately not so simple. There are some very significant problems with the approach.

The Senator has already highlighted the importance of language, and the effect that it can have on how we view and interpret things, which is doubly true in law. Every word in legalisation has a purpose and a meaning. While I know that it is not the Senator’s aim to alter the nature of the offences she proposes amending, the act of changing the words does alter the offence. In altering the offence, a risk is created regarding prosecutions that are already under way and to future prosecutions that may be brought for offences committed before the change in wording.

A significant portion of the amendments proposed in this Bill are to substantive serious offence provisions. Great care needs to be taken in making changes to such offences that no unintended consequences arise. Unfortunately, there may be quite serious unintended consequences arising from these proposals.

The Constitution clearly prohibits creating offences which were not offences at the time of their commission. I understand, of course, that this Bill does not aim to do that but without transitional and saving provisions for each offence that the Bill proposes to amend, the effect of the Bill could be interpreted as removing the existing offence and replacing it with a new one. The old offence will no longer exist and the new one cannot apply to offences committed before the Act but not yet prosecuted. It may be that the courts would not interpret the change to the wording of the offence in that way but, at the very least, the amendments could create the unintended consequence of creating technical loopholes for offenders to challenge prosecutions and convictions and, potentially, evade justice. I have no doubt that no one in this House wants or intends that outcome.

Other amendments are to Acts which reference what could be characterised as the "source" offence of child sexual exploitation material. For example, the Bill seeks to amend the Schedule to the Criminal Justice (Withholding of Information on Offences against Children and Vulnerable Persons) Act 2012, which provides for mandatory reporting where a person has information that certain offences have been committed against a child. Again, careful consideration of ongoing prosecutions, and potential transitional provisions, are required to ensure that the reporting requirement is not inadvertently removed regarding offences committed prior to the change in language, and to ensure the safety of prosecutions under that Act for failure to comply with the reporting obligations. Similar issues arise with reporting obligations under the Children First Act.

The Bill, in section 9, proposes amending the Schedule to the Sex Offenders Act 2001. The Schedule to that Act determines the offences for which a convicted person is subject to the reporting requirements in the Act. If that Act is amended to remove the existing offences which relate to “child pornography” then a person who has a conviction for such an offence will no longer be subject to the reporting requirements of that Act. The reporting requirements under the Sex Offenders Act are important safeguards to ensure that the Garda Síochána can monitor and manage the risk posed by convicted sex offenders. Caution must be exercised before making changes to this Act as it applies to those who already have convictions. It is not possible to retrospectively alter the offence for which a person has been convicted. Senators will appreciate that these are serious risks that could have consequences for the effectiveness of our laws in respect of very serious offences.

In addition, there are a number of more technical issues with the Bill. I am advised by the Office of the Attorney General that there are technical difficulties relating to the amendment of the Short Title and Long Title of the Bill. It is a matter of drafting convention that titles are not amended. It is, of course, open to the Oireachtas to dispense with that convention if there is a pressing need to do so but they do serve a purpose. Adhering to drafting conventions, particularly regarding the titles of Acts, provides a degree of legal certainty in interpreting references to those Acts in amending legislation, case law and debates in these Houses. All of those things are important for the courts, and the public in understanding, and interpreting the intent and application of our laws and the offences contained within them.

There are also difficulties with amending section titles or "shoulder notes" which do not, in law, stand part of an Act. As such it is not clear whether the proposed amendments to section notes would have any legal affect. Of course the wording is hugely important. Finally, there is a lack of precision in the identification of the provisions to be amended.

As I have said, none of these points are meant to be a criticism of the Senator or of the Bill in and of itself. The intentions of the Bill are very much accepted. The Senators should be applauded for bringing forward this Bill.

As I have said, I fully agree with the objective that the Senators are trying to achieve with this Bill and for that reason, the Government is not opposing this Bill on Second Stage. However, there are significant legal and technical issues that do need to be addressed. These are issues that could jeopardise the prosecution of offences for child sexual abuse material and related reporting, and post-conviction obligations if they are not addressed and do need careful consideration.

I thank the Senators, in particular Senator Flynn, for bringing forward this legislation. The Minister for Justice looks forward to working with the Senator further on this piece.