Michael McDowell (Independent) | Oireachtas source

This section concerns the prohibition on publication or broadcast of certain matters. It is to penalise people who make public family law matters in a manner that could lead members of the public to identify the parties in proceedings. It is a huge protection to people and, if we like, part of the constitutional protection we give to the family. People are at their most vulnerable if they are party to family law disputes dealing with issues like adultery, cruelty or coercion - you name it. In particular, they are at their most vulnerable if the fact that such a claim has been made about them, or by them, gets into the public domain.

While I fully understand the need for this prohibition, I want to deal with two points. One is its geographical scope. If a person were malicious and gave the lowdown on a case to, say, Private Eye in London, is any offence committed in Ireland by Private Eye publishing that? Likewise, if it is uploaded onto the Internet somewhere by somebody maliciously, are we protecting a person in Ireland from such an abuse if the scope of publication as defined in section 98 is territorial, and if the public is the Irish public? If the portion of the public is a portion of the Irish public, are we actually protecting people adequately? It is a point I ask the Minister to ponder.

The second point is one that I believe deserves careful reconsideration. Page 101 of the Bill refers to somebody who is convicted of this offence. First, we should make it clear that somebody who tees up such a breach of other people’s rights should be liable to be investigated and convicted.The Minister will see that somebody who is convicted on indictment is liable to a fine of €50,000 or imprisonment for term not exceeding three years, or both. In choosing three rather than five years, what the Minister is actually saying is that the powers of An Garda Síochána to arrest somebody who has breached somebody else's rights absolutely egregiously and maliciously and caused a politician's family law case to be splashed all over everywhere, is limited. If the individual stays quiet, writes a letter to An Garda Síochána and says that he or she has nothing to say about this, then he or she is not capable of being arrested, there is no power of investigation and no power of search. There is nothing to find out exactly what happened. That is the point. The serious offence threshold applies to a warrant to search a premises. It also applies to the power to question somebody rather than be fobbed off with them saying, "I have nothing to say, talk to my solicitors", which flows from a maximum sentence of three rather than five years. I do not want people being unnecessarily arrested but I recall on one occasion that papers found their way into the hands of a newspaper. The Garda Commissioner told the then Attorney General - not me - that there was nothing he could do about it because he had no power of arrest, no power of search, no nothing. The result in that case was that women who, it was alleged in a Garda file, had availed of abortion in this State found that the Garda file on them had been handed to the media and they were doorstepped. The Garda Commissioner said there was nothing he could do about it because there was no offence and An Garda Síochána did not have the right to arrest.

In choosing three rather than five years, we are seriously curtailing the power to protect people and the power to punish people who deliberately pull the rug out from under people in public. I ask the Minister to consider whether it would be better to go for five years, with a simple amendment allowing search, arrest and interrogation of people. Otherwise, people will get away with an awful lot simply by saying, "Talk to my lawyers."