Barry Ward (Fine Gael) | Oireachtas source

In welcoming the Bill on behalf of the Fine Gael group, I acknowledge what the Minister of State said about the genesis of this Bill and the fact Private Members’ Bills from Senators in this House, particularly from Senator Regina Doherty, have given rise to many of the provisions in this Bill. It is worthy of recognition that the Government sometimes does listen to what parliamentarians have to say. I appreciate the fact this has found its way into a Government Bill. The provisions are welcome.

While it may be stating the obvious, I want to highlight how serious the matters of sexual offences and human trafficking are. Sexual offences, in particular, are pervasive. They exist at every level of society, in every age group, although they are much more likely to be reported at younger ages, and for both genders. In fact, 52% of women and 28% of men report having suffered some sexual violence in the course of their lives, which is an astonishing statistic in real terms. When we translate that into the number of people who have been affected, it is a huge proportion of society. Therefore, it is right and proper we should be passing laws that seek to tackle this, especially ones that are targeted at the heart of the problem.

Some of the quite seismic measures in this Bill are very important in doing that. The one I will mention first relates to the test that is applied in moving away from the “honest belief” defence where there is an allegation of rape or somebody is being tried for rape. This is difficult for many and, as a criminal law practitioner, I know we have worked with a particular set of laws up to now. In fairness, it is probably the right thing to do. I acknowledge the work done by the Law Reform Commission in this area. The Law Reform Commission has been a strong, independent voice in looking at sexual offences in this country over many decades, and I am thinking of recent criminal law in the past 20 or 30 years that has been grounded on research, considered study and consultation done by the Law Reform Commission. It is timely we are now coming to a situation where we are changing that subjective standard for consent to an objective standard. I think that is reasonable given all the circumstances.

I have heard from people who are concerned about the effect it might have on an individual who did honestly believe. However, in circumstances where that person is being tried for rape, it is reasonable for the jury, when considering the honest belief or subjective feeling of the person who is alleged to have committed the offence, to assess the scenario and the circumstances relating to that and adjudicate whether that was objectively reasonable. While people have expressed concern about that, it is a reasonable change and a strengthening of the law in that regard.

Consent is a huge issue. We recently saw the law passed by the European Parliament. My colleague, Frances Fitzgerald MEP, did a huge amount of work to bring through a directive in regard to sexual and gender-based violence, but it fell at the last hurdle because of issues in regard to consent. While we see rape as being an issue of consent, that is not necessarily true across all European countries, which was one of the difficulties. One of the things about rape we forget is that while it is obviously a sexual offence, it is not really a crime of sex but a crime of control and power. That is why consent is so central. This Bill goes a long way towards acknowledging the centrality of consent to the offence of rape and the decision a jury must make on an allegation of rape whether, in all the circumstances, there is an objective basis for believing consent was absent.

Similarly, with the cross-examination of witnesses, and these are the measures Senator Doherty brought forward in her Private Members’ Bill, I have a small disagreement. Both her Private Members’ Bill and this Bill suggest references should only be given on oath or on affidavit. The courts where these happen are not generally affidavit courts as they are generally the Circuit Court and the District Court. I absolutely agree with the notion that if somebody is willing to write down on a piece of paper that whoever it might be is a fine fellow and does not deserve to go to prison, they should equally be happy to stand up in court and say as much. However, there are practical implications with that evidence being given on oath or by affidavit. Is there perhaps a more flexible way for it to be done? In any event, the import of the section is that we are now saying to people that they cannot just willy-nilly sign a piece of paper and say that whoever is accused is a grand fellow and there should be no real problem. The reality is any person facing offences for which such a reference would be provided is facing serious offences and charges. Giving a reference in those circumstances should be something that is given only after deep consideration and a willingness to back up what is said within the references.

The national referral mechanism is very important. In the human trafficking sphere generally, we are behind the curve. Much is made of the watchlist we are on in America. I do not necessarily take lessons from the Americans in terms of human trafficking as it is a major problem there, but I do not think they are wrong either. They have identified a number of weaknesses in our system that we urgently need to address, and this Bill goes some way to doing that.

I do not know if the Minister of State considers this to be the be-all and end-all or whether there is further work to be done. Human trafficking is pervasive. I am not sure if the Minister of State could state the number of people who have been trafficked into Ireland and I do not know if that is even possible, but one way or the other, it is an enormous problem. The reality is that most of us, unbeknownst to ourselves, come in contact with people who are trafficked, in particular in the service industry, whether that is in a nail salon, a hairdressers, a hotel or wherever. Obviously, the further you go into illegal activity, the more likely you are to come across people who are trapped in a situation they cannot get out of.

I certainly do not feel that I am equipped with the skills to identify somebody who might be trafficked if I am dealing with him or her. I have said before in this Chamber that we should certainly, as part of the measures that are put into this Bill, look at a national awareness campaign and training for people who want to avail of it so they can recognise the signature, tell-tale signs of somebody who might have been trafficked. It is not so we can all be vigilantes. It is in reference to the national referral mechanism and the idea that people should be able to report this to the Garda. It is very difficult for people to do that if they do not know what they are looking for.A public awareness campaign should be coupled with training for people to help them recognise the signs of a trafficked person so they can take steps if they feel they are in a position to do so, deal with the issues and help us to deal with the issue of human trafficking as it pertains throughout the island of Ireland. This training could be for anybody who wants it but also targeted at particular groups, and obviously for gardaí, although I suspect they already get some training in this area. I welcome those measures. The effect of human trafficking on us, whether we are aware of it or not, is huge.

I wish to make another general point that I make frequently in respect of legislation like this. This is a large Bill that does a number of important things. One of the first things it does is to amend the Criminal Law (Rape) Act 1981. I do not have a difficulty with the amendments but there are seven sections - sections 6 to 12, inclusive - that are simply entitled, "Amendment of Act of 1981". This means that a person reading this Bill cannot understand what it says without having an accompanying copy of the 1981 Act. One of the points I make all the time here is that we should be passing legislation that is accessible to members of the public. They should not need a database of past statutes in order to read the statute that passes today. The answer to that is to either repeal the 1981 Act and re-enact it as part of this, which in and of itself is a cumbersome exercise, but at the very least, for example, repeal section 1 of the Act of 1981 and restate it within this Act in order that it is clear for anybody reading what we hope will be the Criminal Law (Sexual Offences and Human Trafficking) Act 2024 to know what section 1 of the 1981 Act, as amended, says. I do not think it is an overly cumbersome thing to do. What we are creating time and again with any legislation that amends a previous statute is something that is largely illegible. Again, it removes the statute one step further from the people.

Another point I wish to make is related to measures in the Bill that provide for representation for complainants in sexual offences cases. This is hugely important. It exists to an extent already but this expands the provisions of it. It is important that complainants have that representation. Often when people hear about, for example, a rape trial occurring – this is also true of complainants who come into court - they do not understand that the Director of Public Prosecutions, DPP, represents the people of Ireland. The prosecution is there for the people of Ireland, not for the complainant. It is not a case of the complainant against the accused; rather, it is a case of the people of Ireland against the accused. In those circumstances, a complainant is unrepresented. That means that very often victims or complainants go into court and think somebody there is on their side, but that is not the case. They will often refer to “my" barrister when they are talking about the prosecution barrister when, of course, that barrister is not there for them but, rather, for the DPP. Levelling the playing field somewhat in circumstances where the accused person has professional representation is a good thing. It already exists on a statutory footing but expanding that is a good thing. Making it clear what the powers are for the representative of the complainant and ensuring that, in doing so, we are not encroaching on the important and vital rights afforded to accused persons in our criminal justice system is also important.

The measures relating to anonymity are also tremendously important and I welcome that they are put on a statutory footing. There is a situation now where we are preserving the anonymity of people who are coming before the courts as complainants. We should never forget in matters like this that it is incredibly difficult for a person who feels - more often than not correctly - that they have been a victim of a criminal offence, such as a serious sexual offence, to come forward. It is incredibly daunting to go to the Garda full stop. We know that only about half of sexual offences in this country are told to another person, an even smaller number of them are reported to the Garda and an even smaller number again result in a criminal conviction. It is very difficult for a person who has been raped, sexually assaulted or a victim of sexual crime to actually go to the Garda to tell their story, then go through the process of making themselves available for statements, possibly for forensic examination or whatever it might be, and then ultimately to go to court. Anything we can do that does not encroach on the rights of the accused in an unfounded way but makes it easier for complainants is a good thing, and the anonymity provisions in this Bill certainly fall into that category, so I welcome them.

In light of what the Minister, Deputy McEntee, has done in this area, this is another step down the road. We are making huge progress. I welcome the fact that we are passing this legislation, which will bring us further down the road.

I think I had time left when the bell rang. I was going to finish on time. As one of my colleagues often sees the zero only as a sign to possibly start winding up, I am almost tempted to keep going. I thank the Minister of State. I welcome the Bill and look forward to its fast progress.