Paddy Burke (Fine Gael)
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I welcome the Minister for Justice, Equality and Law Reform, Deputy McDowell.

Derek McDowell (Labour)
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I acknowledge, in the words of the editorial in this morning's edition of The Irish Times, that there is "widespread outrage and dismay" at yesterday's release of a 41 year old man serving a sentence for unlawful carnal knowledge of a 12 year old girl. That release derived from last week's Supreme Court decision that section 1 of the Criminal Law Amendment Act 1935 was unconstitutional. The section was struck down because it excluded the possibility of an accused person's invoking the defence of honest mistake as to the age of a person with whom they had sexual intercourse.

Over the previous 70 years many hundreds of persons were convicted under this legislative provision. At no time between 1935 and 2006 was a successful challenge mounted to the denial of the right to the honest mistake defence. Cases as celebrated as the X case, which were considered at huge length in our courts on a number of occasions, were the subject of prosecutions under this section. As a barrister who has both prosecuted and defended these cases, at no time did I hear it suggested that there was a constitutional infirmity with that legislation. We can analyse the process of legal review and how the case was handled until the crack of doom but the electorate looks to us as legislators to put the situation right without delay. The electorate now looks to the legislators to correct the situation without delay, a view supported by my soundings of all parties in the Dáil. I believe it is also supported in this House.

The Government proposes to pass emergency legislation before the weekend to restore the protection of young persons under 17 years of age through statutory prohibition on the offence of unlawful carnal knowledge. We propose to meet the Supreme Court concerns about admitting arguments as to mistaken belief as to age by accused persons. These can be tested and adjudicated upon by the trial courts.

This assembly does not have the right to make retrospective legislation to make right the convictions of persons in custody for this offence. No legislation could have been passed in the past few days, weeks or months to correct the situation of Mr. A or others in that position.

Many people believe that there should be no defence of honest mistake. The Ombudsman for Children wrote to me this week, arguing against such a change in the law, but the Supreme Court has decided it must be part of the law. A small number of people in custody are held in prison solely on foot of convictions for unlawful carnal knowledge. The State has argued against their release on the grounds of habeas corpus. One prisoner was released by the High Court but the case is being appealed to the Supreme Court and will be heard on Friday. The appeal is being vigorously pursued, just as the proceedings in this matter were vigorously pursued in the High Court and in the original Supreme Court case.

I wish to reject misinformation being suggested at present, namely, that there is no protection for our children from sex predators. This is completely untrue — strong legislation remains in place to protect our children. It is important to reassure the public. The striking down of section 1(1) of the 1935 Act does not leave a gaping hole in our laws. Our criminal code still provides for sexual offences against young people. Rape remains part of our law and carries a life sentence; sexual assault against a young person carries a penalty of 14 years; aggravated sexual assault carries a life sentence penalty; and rape of a young person contrary to section 4 of the 1990 Act carries a life sentence. To get a child drunk and to have sex with that child is an offence that carries a life sentence.

While the Government intends to publish legislation in this area, many other offences under criminal law protect our children. I spoke to the Garda Commissioner who confirmed that any offences of the type publicised in the newspapers remain serious sexual offences and will be the subject of vigorous investigation by the Garda Síochána.

The second falsehood is that the Government could have introduced emergency legislation to stop sex offenders affected by the Supreme Court judgment from being released. There is not a shred of truth in this suggestion. The High Court originally upheld the State's defence of the 1935 Act. The Director of Public Prosecutions, the independent prosecutor in Irish law, continued to lay charges for offences under the 1935 Act as late as 12 May. The Dáil was incorrectly informed that the DPP placed a moratorium on these prosecutions at some point in the past.

No legislation can retrospectively convict someone and nobody can draft a Bill that will bring about that outcome. Another falsehood that has been continually articulated by some quarters of the media is that the Law Reform Commission warned the State in 1990 that sections of the 1935 Act were unconstitutional. One newspaper wrote that the Law Reform Commission suggested there should be a constitutional referendum to deal with this issue. Nothing could be further from the truth. It stated that Irish law, in respect of the absence of a defence of honest mistake as to age, was unduly harsh and wholly out of step with law in other jurisdictions. Over the past 16 years, this was never interpreted as being unconstitutional. Countless cases have gone unchallenged on this aspect since the Law Reform Commission issued that report in 1990. The great majority of lawyers did not believe that there was a constitutional flaw, otherwise they would have raised it.

I have not checked the record of the Seanad but I am unaware of any Member of the Oireachtas tabling an amendment to make Irish law less stern in this regard. Any Member doing so would have faced stern opposition, not least from the viewpoint articulated by the Ombudsman for Children. Nothing could be further from the truth than to state that Governments since 1990 have done nothing with regard to the Law Reform Commission report. A series of Acts dealing with sexual law, homosexuality, child sexual abuse and the constituents of rape were based on the recommendations of the Law Reform Commission. None of the Governments, including that which included Deputies Rabbitte and Kenny, sought to change the law as a result of the report. Stern as the law was, successive Ministers with responsibility for justice judged it more effective than allowing the defence of honest mistake. No one in the Dáil or, I imagine, in the Seanad suggested we should have a less stern law to protect our children from sexual abuse.

Five Acts dealing with sexual offences have been passed since the 1990 report, including landmark legislation proposed by Máire Geoghegan-Quinn decriminalising homosexuality and dealing with prostitution. Many Acts have dealt with international agreements on child sexual offences. On no occasion has a Member of the Oireachtas, as far as I know, tabled an amendment to allow the defence of honest mistake. The Law Reform Commission report did not impugn the constitutionality of the Act. The Department of Justice, Equality and Law Reform published a discussion paper on this issue in 1998 and received a significant number of submissions. Subject to correction, 11 dealt with this subject and seven favoured it. There was no great appetite to water down stern laws on the abuse of the defence of honest belief.

I wish to say a few words about what has happened since. It has been suggested that somehow if the Minister for Justice, Equality and Law Reform, the Attorney General and the Director of Public Prosecutions had conferred and decided that it was likely or possible that the Supreme Court would decide the case as it did, we would have been able to do something to stop Mr. A from contesting his liberty on foot of it. Nothing could be further from the truth.

While it is true that I personally was unaware of the Supreme Court action and had no inkling of it until I heard about the result last Tuesday, even had I seen it happen in the Supreme Court, I could not have introduced legislation in advance its decision, and I would not have done so. First, to publish and introduce legislation while defending in the Supreme Court a case that one has won in the High Court would have been regarded by one's counsel as pulling the rug out from under him or her entirely. Second, it is not the practice of the Department of Justice, Equality and Law Reform, when it has won in the High Court, to prepare emergency legislation against the contingency that it might lose a case in the Supreme Court, especially when that legislation could not reconvict or keep in custody any person who would be affected by a successful outcome there.

That is another myth. However, the fact that it is a myth and sounds credible does not in any way inhibit some people from saying that somehow someone could have stopped this decision. That is not the case.

As far as the legislation soon to be put before the Houses of the Oireachtas is concerned, the Government is very clear regarding its intentions. It wishes to introduce a measure that will restore protection for children under the age of 15 by reintroducing an offence of statutory rape for them. Any statutory rape amounts to sexual assault, so the effect of reintroducing that protection will be to increase the maximum sentence for that offence from 14 years, as it is currently, to life in respect of that category.

Regarding 15 and 16 year olds, the legislation will reintroduce what in the 1935 Act was described as the protection of an offence by misdemeanour, which made it a lesser punishable offence to have sexual intercourse with a girl in that age category. In that respect, it is the Government's intention to reform the law and modernise it in accordance with the Law Reform Commission's suggestion regarding persons in authority and so on. However, it is absolutely wrong to suggest that these measures will by themselves suddenly make wholly illegal something that is wholly legal now.

I will deal with the question of the conduct of the court cases. The case heard in the High Court and Supreme Court started off on the basis of counsel being jointly instructed by the Director of Public Prosecutions and the Office of the Attorney General, which is quite usual, since it was a mixed case of criminal law and potential constitutional issues, depending on the interpretation of that law. It was thought, as is frequently the case, that one team of counsel would suffice to represent both interests. That team won the case in the High Court. I emphasise that fact, since very few people are doing so at present. Counsel for the Director of Public Prosecutions, who was in the driving seat in that joint team, won the case in the High Court, after which the case went to the Supreme Court.

My second point is that the case was vigorously defended, both in the High Court and in the Supreme Court. The result in the latter case has been a decision by the Supreme Court that section 1(1) of the 1935 Act was not brought forward into law in 1937 owing to the fact that the Legislature in 1935 had shorn it of a defence by expressly removing the defence of honest mistake from the pre-existing law. It did not come forward. Curiously, the same decision of the Supreme Court stated that the offence of sexual assault, then known as indecent assault, was not infirm, since there had not been any specific amendment to remove a defence in that case, and it came forward into the Constitution with the gloss that the defence of reasonable mistake must attach to it.

If one had asked a legal practitioner five years ago whether he or she thought that the defence might avail itself of that argument, that practitioner would have said "No". If one had asked a Member of the Oireachtas in 1937 whether he or she thought that the law was being amended to allow the defence of reasonable mistake in indecent assault cases — now sexual assault cases — that Member would have replied in the negative. However, owing to the peculiar legislative history of section 1(1), the Supreme Court held that it could have only one meaning, namely, that it could not be a defence under that section to show honest belief, whereas there was sufficient ambiguity about indecent assault to allow the court to hold that such a defence attached to that offence.

What is happening now in the Supreme Court is that the Government, through the governor of Arbour Hill Prison, is contesting the decision made by Ms Justice Laffoy in the High Court. Is this some scramble to save face? No, it is not. There are two views of the law in this matter. One is the classical view that, if it was not brought forward, section 1(1) must now be regarded as never having been part of our law, and as a consequence persons have never been properly convicted, imprisoned or registered as sex offenders, since the offence simply does not exist.

There is another view that I wish this House to hear, since it is important that it be articulated. It is as follows. Although that offence has now been struck down as inconsistent with the Constitution, things done under it are not retrospectively made unlawful. It was not unlawful to imprison the man in the X case or those others who pleaded guilty and were sentenced, to place them on the sex offenders' register, or to regard them as having been convicted of a very serious offence carrying the penalty of life imprisonment.

Members may ask, if it did not come forward in 1937, how it could possibly be that someone could be regarded as not being detained unlawfully. The State's argument is that, while something stands part of our law, in the sense that it is accepted as a general part thereof without being challenged, and is generally operated, it should attract the protection of the courts, at least to the extent that acts carried out under that Act should not be regarded retrospectively as unlawful and having no meaning in law.

The nub of the State's case is that Article 40 is not the appropriate way to secure one's liberty if one claims that one has been held in custody unlawfully under section 1(1) of the 1935 Act. What one should do is seek to have the warrant committing one to prison quashed by way of judicial review. In the context of such a review, issues such as whether one pleaded guilty to that offence when charged with another offence, thereby securing one's acquittal from the former and trading a plea, would be examined. Whether the prosecution was prejudiced by one's pleading to an offence subsequently found invalid would be examined. Issues as to whether the offence committed also constituted a different, valid offence at law could be canvassed. Every statutory rape of a child of ten, 12 or however many years, also amounts, as a matter of law, logic and fact to an indecent assault or a sexual assault on that child. Every person who has either pleaded guilty to an offence of statutory rape or been convicted of it has, on the particulars of his or her indictment, sufficient facts also to convict him or her of the offence of sexual assault attracting a maximum sentence of fourteen years in prison.

It is not a threadbare statement to suggest that when somebody goes to court, advised by lawyers, and pleads formally before a judge appointed under the Constitution that they are guilty of the offence on the indictment, and the particulars of the offence also constitute a very grave offence under Irish law, justice demands that the plea be given effect to as a matter of common sense and to uphold the constitutional rights of the children involved. It is not a threadbare position.

I am not an advocate in the courts now. The appeal the State has taken, which will be pursued vigorously, is not being done to save face. It is the result of a conviction that justice demands that if somebody gets four life sentences for assaults on young children on a plea of guilty to statutory rape when indicted for rape, as in one of the cases at issue, and secures, by that plea of statutory rape, an automatic acquittal of the greater offence of rape, and acknowledges himself guilty on the facts of sexual assault, that person should serve his or her sentence. That is not a threadbare, outlandish or unreasonable argument which flies in the face of commonsense.

It is for the courts to decide, for the first time, what the consequence for a criminal conviction will be if somebody is the subject of a conviction and a sentence on a pre-1937 statute which was struck down post-1937. This matter has never been decided before, but the case is immensely strengthened when the particular ground of objection relied on in the CC case, that there could be doubt about the age of the victim and that the person was entitled to argue that point, was wholly unavailable, inapplicable and inappropriate given the facts of the case that are subject of the other conviction.

It is wrong, bogus and untrue to suggest that somehow the 1990 report of the Law Reform Commission went unacted upon. It is wrong to suggest that, after the CC case commenced, some piece of legislation or some action by the Government or Legislature could have affected the outcome of that case. It is wrong to suggest that as a result of the striking down of section 1(1) of the 1935 Act our children are defenceless and that serious acts of sexual predation against them are now made lawful. It is wrong to suggest that any Government ignored successive warnings, or even any warnings of substance, that this legislation was unconstitutional. It is wrong to suggest that these propositions were obvious to the minds of reflective lawyers who observed the situation, when many hundreds of lawyers have conducted cases under this section without ever impugning the validity of the section, not least the Supreme Court in considering the X case and the cases that resulted from it.

People can work up incandescent, white heats of fury but let us consider this realistically and truthfully. No legislative intervention could have altered the outcome of this case. The Government is determined to introduce legislative reform proposals which will adequately address it. It is right to take a few days to get this right and not introduce a second Bill with some constitutional flaw. This Government is determined to fight its appeal in the Supreme Court and to legislate in these Houses to bring about justice for children who need protection.

It is wholly and completely wrong to suggest that public servants or public office holders were indifferent to a threat to the safety and welfare of our children that they lazily decided to ignore or fob off. That did not happen. These Houses have legislated extensively in relation to sexual offences. No Member of either House, in the 16 years since the Law Reform Commission canvassed the view that we should allow this particular defence, tabled an amendment to any of the legislation or any Private Members' Bill suggesting the protection of children should be less stern than was provided for in the 1935 Act.

I welcome the opportunity to come before the House to tell the truth about these matters. I did not know about it personally and I would have said so if I did. However, this is not relevant. My knowledge or lack thereof could not have made me do anything that I would otherwise have done. We would not have prepared legislation on a contingency. We would not have introduced legislation and pulled the rug from under our own team in the Supreme Court had we apprehended any threat. The Director of Public Prosecutions did not believe he was going to lose the case, did not warn me he was going to lose the case and kept on using section 1(1) until 12 May, contrary to what was said in the other House this morning.

Let us deal with the truth of this matter, not myths. Let us deal honestly with what unites us on this matter instead of pointless point scoring. We all stand together by our children and no one Member of either House is more devoted to the protection of children than another. No Member of this House has a better record than another, when in power or out of power, on this issue. The people look to all of us to be respectful of the truth in this matter, to legislate to protect our children in response to the Supreme Court decision and, in so far as we believe the High Court decision is mistaken, to vigorously prosecute an appeal to the Supreme Court. This is being done with a view to upholding what we believe is a commonsense and fair approach, as opposed to the mythical approach that what happened in the X case so many years ago was all a nullity at law.

Maurice Cummins (Fine Gael)
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I would like to share my speaking time with Senator Maurice Hayes. I am glad that the Minister has at last come to the Houses of the Oireachtas to explain the extent of the problems facing us following the Supreme Court decision. It is over a week since the decision was made and we and the public need answers. The explanations given here raise more questions than answers. Can the Minister confirm how many men are in prison based on section 1(1) of the 1935 Act? How many are facing charges under section 1(1)? What is the scale of the exposure if all these offenders are released just as Mr. A. was released yesterday?

Section 1(2) of the same Act deals with the unlawful carnal knowledge of girls aged between 15 and 17 and is almost identical to section 1(1). Is it the view of the Minister and the Government that a challenge to this section is also likely to succeed? If this is the case, we need to know the consequences. How many offenders are in prison based on section 1(2) of the Act? How many more men are currently in the system facing charges arising from section 1(2)? In the other House this morning the Government had no answers to these critical questions. This is basic information about a serious threat to our young people. It should be readily available and should have been answered in this House this evening.

The Minister and his Department said that he was unaware of the constitutional challenge to section 1(1) even though the challenge had been reported in the Law Society Gazette last October and in a national newspaper last July. No explanation has been offered as to why the Attorney General who was party to the Supreme Court challenge did not alert the Minister to the consequences of the challenge. Since the Supreme Court decision the Minister has been sixes and sevens, I suggest, speaking half truths and making dishonest claims on the radio in particular. Last week he said it does not require an instant response because there is no gaping black hole and we should not rush into serious law. At last, this week and this evening, the Minister and the Government are promising urgent legislation. The only black hole, I suggest, is the gates of our prisons.

On RTE "Six One News" last night the Minister said that the DPP continued to lay charges under section 1(1) of the 1935 Act until recent weeks.

Derek McDowell (Labour)
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To 12 May exactly.

Maurice Cummins (Fine Gael)
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On Monday the High Court was told that the DPP has not sought to proceed with statutory rape indictments and trials had been staged by consent since last summer pending last week's judgment. Who is right and who is wrong?

Derek McDowell (Labour)
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I am right——

Maurice Cummins (Fine Gael)
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The Minister is always right. We are not all knee-high to him. What does this say about the Minister's integrity on this vital matter?

The Minister also said on the RTE "Six One News" that the DPP had carriage of defence on this case in the Supreme Court. This morning in the other House the Tánaiste revealed that the carriage of this case was jointly by the Attorney General and the Director of Public Prosecutions. The Minister also stated that the first he and his officials knew about the challenge was when they read it in the newspapers. Can we really believe that? The Tánaiste said this morning that in November and December 2002 the Department of Justice, Equality and Law Reform was informed by the State solicitor's office that this action was being taken. What is going on? Who is telling the truth? Was the Tánaiste telling the truth this morning or is the Minister telling the truth now?

The Minister's arrogance and his incompetence on this issue are a new low for this Government. His competence and integrity are now in doubt. He urgently needs to answer the questions I have posed to retain any semblance of integrity on this matter.

It would be remiss of me if I did not refer to the victims and their families. The mother of the young girl whose rapist was released by the High Court yesterday outlined on the "The Gerry Ryan Show" the potential consequences for this family and the shocking effects on her daughter. The potential release of six more offenders is likely to have similarly traumatic consequences for the other families.

Unfortunately, the Government clearly believes that political accountability by Ministers for their actions or their failures is a principle that should apply to other Administrations rather than this one. The Minister said that we would be in a position soon to scrutinise the legislative response to this grave situation. I hope he will tell us when this will response will come.

Brian Hayes (Fine Gael)
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I welcome the Minister to the House and thank him for making a statement on this matter. It is important that a statement was made in this House because a request for a full statement on this matter came from this House yesterday.

It is important to state that the questions posed by Senator Cummins need to be answered quickly. There were posed in the other House this morning by the leader of my party. The gravity of this situation requires an immediate audit and an immediate response to those questions, specifically the question on section 1(2) of the 1935 Act, over which I understand a cloud of suspicion exists following the Supreme Court judgment of last week. It is important to know how many persons convicted under that subsection are also currently languishing in Irish jails. If that is successful, we would need to know the total number involved.

What is important now is to move ahead and get agreement on plugging the existing gap in Irish law and leaving to one side the issue of the age of consent, which is a wider issue that warrants wider debate and an issue which we need to take time to consider. I give that view sincerely.

It is important to put in place, as Senator Cummins said, some practical help for the victims and their families. Despite the comments of the Minister that no charges have been preferred post 12 May under section 1(1) of the 1935 legislation, we have heard of cases in the country where the Garda have informed the victims of statutory rape that the book of evidence and the court case proceeding will not now proceed. I suggest to the Minister and the Government that specific help needs to be provided to those families and those young girls, and in each case the State must be there for them at this stage, given the gravity of the situation we now face. That needs to happen urgently. We also need to be informed as soon as possible of the total number of cases in respect of which charges will not now come before the courts, given the significance of last week's ruling.

The Minister claimed that the normal channels of communication were not used in this case between the DPP, his office and Attorney General's office. Most people find that unbelievable. As to the notion that such a significant court case could come before the Supreme Court and the Minister would not be aware of that fact, I respectfully suggest that a county solicitor, not least an eminent senior counsel such as the Minister, knowing the ramifications of that case, would be aware of that.

The Minister came to this House tonight in a very defensive mode, and rightly so because currently he has much to defend. Our task is to do whatever we can to resolve this legal lacuna and to ensure that the protection of our young is the absolute priority. To do that, the way forward is to bring forward amending legislation and to leave the issue of the age of consent to another day. I hope the Government does that. I am not clear from what the Minister said as to whether the Dáil will sit tomorrow to deal with this matter or whether it will be dealt with early next week. We need clarity on that issue as well.

Paddy Burke (Fine Gael)
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The Deputy Leader wishes to propose a change to the Order of Business.

John Dardis (Progressive Democrats)
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This debate was originally scheduled to conclude at 8.15 p.m., but as there are four more groups offering and ten minutes has been allocated to each group, I propose the debate should continue for another 50 minutes which will also allow the Minister ten minutes to conclude the debate.

Paddy Burke (Fine Gael)
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Is that agreed? Agreed.

Jim Walsh (Fianna Fail)
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I welcome the Minister to the House for this debate and I very much welcome what he had to say. Members requested a debate on this matter yesterday morning and this morning and the Deputy Leader kindly acceded to that request. I am pleased that the Minister actually attended.

I listened to Senator Cummins say that there were questions to be answered, but the substantive questions have all been well covered by the Minister. Senator Cummins asked a question regarding section 1(1) of the legislation. The answer given in the Dáil this morning was that there were either six or seven people in prison currently under that section. Senator Brian Hayes has broadened this aspect to include section 1(2) in respect of which there may or may not be implications. That has not been struck down as unconstitutional and as of now it is unaffected.

The House has acted responsibly in the way it has conducted the debate, although that does not always happen in the other House. On an issue of major concern to the public, many people will express their concerns through the media. That is to be expected and it is probably right in a democracy that this happens. However, it behoves us to take a more measured view of the situation. Undoubtedly the appalling situation where a person in his 40s, who was convicted of having sex with a girl of 12, was released from prison is one which none of us could accept or condone.

We need to consider the issues of the age of consent and gender equality, which are complex. Young people are sexually active at an earlier age than perhaps our generation. They face many challenges. One would certainly have to raise questions as to some material in teenage magazines. Young people are also exposed to such material on television and the Internet. There is a huge responsibility on us as legislators, but also on parents and society generally, to ensure children are safeguarded. Exposure to explicit sexual details at an early age is not healthy or good for young people's formation. It is an issue which should be considered. Reports also seem to indicate that young people in their very early teens are having sex. That should be taken into account in terms of how we manage this issue. We need to legislate but we also need to provide education and support systems which tackle this issue.

If two consenting young people engage in sexual activity and both are below the age of consent, the boy is guilty of an offence but the girl is not. That is a serious anomaly. My position was that it should be an offence for both parties but when I thought about it I considered whether it might lead to a situation which would make girls reluctant to come forward where they had not given consent and statutory rape had occurred. It is a complex area of which we need to be careful.

I listened with interest to the Minister speak about the fact that the release of Mr. A from prison is being appealed to the Supreme Court. I understood him to say that a prosecution would not automatically be expunged where the section under which a person was prosecuted was subsequently struck down by the Supreme Court and that other factors would be considered which might keep the person incarcerated. Where there is such a disparity between ages, as in this case, common sense should dictate that a person guilty of such an offence should not be released.

In regard to double jeopardy, if the appeal to the Supreme Court is not successful, we should look at the way in which technicalities are used in cases by intelligent, hardworking lawyers who have researched the legal position. I am not sure we should necessarily allow a situation whereby somebody who is obviously guilty of a heinous crime and who has been prosecuted under a section of an Act which has been struck down cannot be recharged where a technicality is invoked. I distinguish between that and where a jury of the person's peers made a decision as it would be different if the person was convicted by a jury. I am not sure the public welcomes technicalities being invoked. I know we must safeguard people and that we cannot continue to prosecute people until we get a guilty verdict.

I welcome, as I am sure other Members do, the decision of the Supreme Court to hear the case on Friday. That is a responsible decision and the court is dealing with the case as a matter of urgency, which is what we wanted. I noted that the Supreme Court judge, in announcing that decision, said these matters cannot be rushed. There is always a danger when there is much hysteria and public concern, which we all share, and when the media are pushing the issue that we get ahead of ourselves. It is a time for steady heads and a steady hand on the tiller. In that regard, the Minister's outline of the situation was welcome. Obviously, we want the legislation as soon as possible but when it comes before us, it should be evaluated to ensure it does not include other lacunae which will cause problems for us in the future.

The House has done a service by inviting the Minister and having him enunciate an outline of the Government's position on this matter. I and others in the House welcome the fact the Government has decided to restore the protection of children under the age of 15 years and to deal with the issue of 15 to 17 year olds.

Joe O'Toole (Independent)
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I wish to share time with my colleague, Senator Norris. I welcome the Minister and deeply appreciate that he has come to the House. An earlier speaker made the point that he was very much on the defensive. He spent the first ten minutes scotching stuff in today's newspapers. I strongly believe the Minister should have come into the House yesterday to explain, in a non-confrontational manner, what he said this evening as I heard answers to some important questions — questions to which we wanted answers yesterday to try to deal with queries.

The points the Minister made that the existing charges of rape and various forms sexual assault remain and that children are not unprotected should have been put on the record yesterday. It would have been very helpful, although I accept he would not have had all the information.

Having heard the debate, I do not want to see legislation next week. I am prepared to take the stick I will get for saying so. The Minister referred to the implications of Supreme Court decisions in previous cases. The Supreme Court will hear an appeal on Friday but presumably the judgment will be deferred. Either way this will have a serious impact on the Minister's approach to whatever he does afterwards. These matters are interconnected but they are not the same.

I would like to see the legislation published next week and opened to public discussion for a period before we start to deal with it. It should not be published on Tuesday, discussed on Wednesday and passed on Thursday although I am aware of all the pressures on the Minister to do that.

I said yesterday that there were three parts to this issue. First, I wanted the Minister to come into the House and explain the position and we would argue the toss. Then I wanted to distinguish between the age of consent and the current problem with the law. The Minister tonight roughly outlined the impact of the current situation. Senator Cummins has raised serious questions which I presume the Minister will answer at the end of the debate. Assuming that he deals with that and there is an audit, as Senator Brian Hayes suggested, at least we will know the confines of the problem facing us.

There seems no reason to pass legislation next week. The public needs to know that if someone is facing a charge the DPP has a choice of charges to lay before that person. Senator Cummins said that apparently gardaí are telling victims they cannot go ahead with cases in which they were going to prefer charges of statutory rape. That attitude needs to be scotched immediately because it is clearly wrong. Whoever says that does so on the basis of misinformation or lack of information. That needs to be stopped, otherwise it will run like a bushfire.

The legislation should be published. There should be some debate on it among all who are interested. It is nice to see interest in legislation at such a broad level. Let us get views on it. This House should have time for a proper Committee Stage debate, unlike the other House which seems to pass legislation at a clap. The Minister should do that, keeping an open mind as he always does on legislation in this House, deal with it and bring it back to the House. We can explain to the public that this is the best way to move forward. Early publication is more important than early legislation. Let us see the Minister's thoughts, respond to them, get a general view, and deal with the issues as they come forward.

The Minister spoke about a judicial review, sought by whom I am not quite clear, on the basis that people engaged in plea bargaining. Is there really such a thing as plea bargaining? We know there is but can it be stated as such? I do not know how that works because I was under the impression that ostensibly it never happened, although it did happen, like national partnership agreements. The Minister said there is enough information on the files of these people to allow other charges to be laid against them but that statutory rape was chosen. Does that allow an opportunity for further charges to be laid against these people around the same issues on which they have already pleaded or been found guilty of statutory rape? Would that be double jeopardy? People would wish that to be clarified.

Can the Judiciary take into consideration the issues of common good raised in today's Irish Independent? Every time we try to make our legislation black and white we lose out, whether in regard to drink driving or other issues. Mandatory sentences are an example. Will the Minister explain how, although there is a mandatory sentence of ten years for dealing in drugs, judges frequently decide that is not reasonable and apply lesser sentences. I do not argue with that. In the cases I have examined they have been right, as they have been to raise questions about having to sentence people on charges of statutory rape. If they could use discretion on such a clear mandatory provision in legislation could they have chosen not to listen to an argument of honest mistake? Is it not the essnce of judgment that one takes circumstances into consideration because they alter cases, and come to a conclusion on that basis?

I thank the Minister for coming into the House, although it would have been better to have this debate yesterday. We need to scotch certain issues and hard questions need to be answered.

David Norris (Independent)
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I too am glad the Minister has come in here this evening. It is important that he has done so. He came in to confront the issues forthrightly and by and large he did that, although there are some areas with which I am not satisfied. The Minister was very angry. He used the phrase "incandescent with rage" but as he spoke I felt he was incandescent with rage. The country feels the same way about the violation of a 12 year old child who was fed with drink and raped, and the man pleaded guilty. I cannot understand how any human being with a conscience would walk free having pled guilty in that manner. There is a defect in that man's conscience. I could not do it had I been guilty of this terrible crime.

The Minister's anger, however, was sometimes misdirected because it focused on charges that have not been laid against him. Nobody in this House ever suggested that the Minister or any member of Government or any Member of either House was indifferent to the suffering of children, or carelessly or needlessly neglected something. Nobody said that and I most certainly did not, but I did say some things repeatedly in various debates that were never heeded.

I have looked at the issue of consent, for example, which underlies this matter. I am not an expert in law but I suggested that one way of approaching this was to consider a principle of consent, rather than an age of consent, which may always cause some difficulty, and let that be referred to a court. In this type of case it is blindingly obvious that an offence was committed. I know, however, of a case in which two teenagers had consensual sexual relations and the male was convicted and jailed. That is not right. I never thought it was right and said so in this House. I am not trying to say I was right and I told the Minister so because this is not the moment for that kind of talk, nor is it the moment for partisan politics which will only demean the entire process.

Many people are confused because there appear to be conflicting views emerging from the Department of Justice, Equality and Law Reform and the Office of the Attorney General. That is what people perceive. I am confused about this matter but I agree with the Minister that he could not possibly convict someone retrospectively. I am glad he said that because, dreadful as this case is, it would be awful to rush an Elastoplast solution through with the result that, because we did not want one guilty man or even three or six guilty people to get away, innocent people would be jeopardised. We must protect the innocent in this matter.

I did not interject, because this is too solemn and serious a moment, when the Minister's anger overcame him and he cited the reform of the criminal law on homosexuality, as if this was a response to the Law Reform Commission. No, it bloody well was not. It came about because I took the Government to the European Court of Human Rights, having failed to get a judgment that a major violation of fundamental human rights was in conflict with the Constitution. The Constitution does not protect everybody.

The Minister is right to say we should not claim to be wise after the event. The Law Reform Commission did not, apparently, say there was a constitutional flaw, but it did say — in the words of the Minister — the law was unduly harsh and totally out of step with other European countries. Was that not a signal? Should the Government not have acted on that rather than say it was not under this Minister's watch? For God's sake, if we are concerned about the welfare of people in the country, should we not pay attention when the Law Reform Commission says "the law is unduly harsh and totally out of step". A phenomenon I have noticed time and again with the Government is that when a difficult issue arises it is kicked to the Law Reform Commission and then damn all happens. That is a pity.

It is important to acknowledge that the Minister has come into the House to discuss this issue. I hope he has reassured rape victims, because many people are concerned about rape. I hope there is support for the family involved in this matter and that they are reassured by the Minister. I hope too that some good legislation results from this situation.

I want to refer to something that was stated repeatedly last night on "Tonight with Vincent Browne". The Minister has referred to a sex offenders' register, but those on the programme stated with clarity and certainty that there is no such "animal" in the country.

John Dardis (Progressive Democrats)
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If Senator Norris believes the Minister was incandescent with rage, I do not know what adjective describes Senator Norris's state of mind.

I wish to share my time with Senator Maurice Hayes.

Brendan Daly (Fianna Fail)
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Is that agreed? Agreed.

John Dardis (Progressive Democrats)
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I welcome the Minister to the House and acknowledge the fact that he has always shown himself amenable to coming here and engaging meaningfully in debate. I thank him for making himself available at a time when it may seem like a whirlwind is going on around him with regard to dealing with these difficult issues. I know the Minister and all Members have the same sense of dismay at what has occurred and at the situation in which we find ourselves and he has expressed his outrage at the developments resulting from the Supreme Court judgment.

This debate has its origins in the Supreme Court decision in respect of section 1(1) of the Criminal Law (Amendment) Act 1935. Senator Brian Hayes referred on the Order of Business to the blame game having started. I am certain there is little to be gained from the blame game. As I said this morning, the House has a good tradition of dealing with these matters in a balanced, reasonable, considerate and compassionate way. I hope we will do that again.

The main focus must be on the concerns of the citizens, particularly the protection of young people. The central question concerns what we are going to do now. I agree with what Deputy Kenny said in the Dáil, namely, that we must have some measure of unity in our attempt to protect young boys and girls. We must have a combined will on the part of the Oireachtas to deal with this difficulty. It is not just a matter for the Minister or the Government, but for the Oireachtas.

On behalf of the Progressive Democrats I want to state our utter outrage at the repercussions of the recent judgment. Nobody has a monopoly on outrage or compassion and the Minister emphasised that in what he said. No right-thinking person could fail to be appalled that a man who plied a young girl with alcohol and pleaded guilty to carnal knowledge should walk free. Nobody anywhere could condone that.

It is important that we make it crystal clear to everybody in this jurisdiction that there is no legal limbo. There is no green light for perverts nor a gaping black hole, but there is a particular problem with which we must deal. The Minister was right to speak about the myths being peddled in a scare-mongering way on this issue. The facts are as follows: first, our criminal code still prohibits sexual offences against young persons; second, the crime of rape remains part of our law and the Garda and the Director of Public Prosecutions are duty bound to uphold and enforce these laws; third, a person who has sex with a girl less than 15 years of age can be charged with sexual assault; and, fourth, consent cannot be given by a person under 15 years of age regarding the offence of sexual assault.

Everyone should know that the crime of sexual assault carries a penalty of 14 years in prison. They should know that a sexual incident with a minor where force is used carries a penalty of life imprisonment. A case of aggravated sexual assault carries a penalty of life imprisonment. These penalties are in addition to the penalties for rape offences. The so-called Mr. A case does not change these facts. The laws and severe penalties are in place. Parents need not have fears about this. Those evil persons who might entertain thoughts of breaching these laws should be aware that they are subject to these penalties and the full rigour of the law.

The so-called Mr. A case does not change these facts. Following the Supreme Court decision, prisoners convicted of breaching section 1(1) of the 1935 Act can apply to be freed on the basis that the law under which they were convicted no longer has any legal standing. This was the route pursued by Mr. A. His application was successful because he had been convicted of a breach of that section and had already served two years of his three-year sentence. That does not negate our strict laws on penalties relating to sexual assault and rape pertaining to young people or anyone else. We should also remember that it is possible for the Director of Public Prosecutions to proffer fresh charges, for example of sexual assault, against those freed under the Supreme Court decision.

We must now look forward. The blame game is a pointless exercise. Whether we go back nine, 16 or 70 years, we should not suggest that the people who drafted the laws did so in the knowledge they contained this defect. Every legislator over the years tried to do the best for the people. No Government or justice spokesperson suggested changing the law or including a mistake in respect of age as a reasonable defence. Such debates serve neither parent nor young person and are about party politics.

I am glad the Minister consulted widely on this issue this afternoon with the Opposition parties. Hopefully, we will agree a way forward. We are all outraged by this matter, but we must deal with it. Members have shown themselves in the past to be amenable and capable of dealing with such difficult issues.

Maurice Hayes (Independent)
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I thank the Minister for coming to the House for this important debate. I have found it helpful to hear the legal issues set out clearly. There are three problems, a medium-term, a short-term and a damage limitation problem. The medium-term problem has to do with the age of consent and a general adjustment in that regard. We live in a society in which media, marketing and other forces all push children towards an earlier expression of sexuality. We can be surprised at the precocity of young people. If we do a quick job now, I hope we do not lose the appetite for dealing with that issue. It should be dealt with in the medium term as some Members have suggested.

The short-term measure required is really a plumbing job to repair the Act, given the deficiencies attributed to it by the Supreme Court. I disagree with Senator O'Toole that this can wait. There is a public demand for something to be done now. I take the point that there is plenty of protection and that children are not unprotected. That is a valid legal point, but there is less political validity. Within the next day or two we need some emergency or temporary legislation to deal with this and try and reinstate the law to where we thought it was.

On the question of damage limitation, we must deal with the effect of the Supreme Court and subsequent judgments. I am encouraged to hear the State will pursue the individual cases with the vigour indicated by the Minister with the possibility of ensuring, within the Constitution and the law, that the people who should be in jail for offences to which they have admitted stay there. I think that represents what most people think the law should be. I hope the Minister is right. As the beadle said in Oliver Twist, sometimes "the law is an ass". Therefore, I think the Minister might have to think of what to do in those circumstances. That brings me to the point that we need to ensure that families or victims receive support and protection. This could be provided by social workers or gardaí.

I commend the Minister on the response he has given the House this evening. I found it helpful and reassuring. I wish him well with the steps he proposes to take. It will be easier to discuss them when we have the text of the legislation in front of us. Like everyone else in the House, I am sure, I want to give the Minister all the support I can in his efforts to protect children.

Joanna Tuffy (Labour)
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I would like to begin by quoting the last sentence of last week's Supreme Court judgment:

I would allow the appeal and grant a declaration that s.1(1) of the Criminal Law (Amendment) Act 1935, is inconsistent with the provisions of the Constitution.

That sentence is unambiguous in ruling unconstitutional an entire section of an Act dealing with the particular offence of statutory rape. It can no longer be said that there is absolute protection of children from sexual predators. If a person who is accused of such a crime starts to raise the issue of consent, there is no guarantee that he or she will be convicted.

The urgency of this situation and the issue which is at stake are clear to anyone who reads the judgment from which I have quoted. I said last week that the Minister, Deputy McDowell, should have anticipated the judgment. I find the Minister's comment that he was not aware this case was coming down the line hard to believe. The State was a party to this action. The Government cannot be a party to that many court cases in which laws of the State may be found unconstitutional. I find it hard to understand why the State and the Government were not monitoring cases of this nature to ensure they were ready for such outcomes. It is obvious that if such a case reaches the Supreme Court, a serious issue is at stake and is being debated.

When last week's judgment was issued, the urgency of the situation was quite clear. I realised the urgency of the situation. An RTE report on the matter was announced with the headline that the offence of statutory rape had been abolished. When I spoke in the Seanad the following morning, I said that this issue should be given priority over all other matters and that legislation should be introduced as a matter of urgency. Other Senators agreed with me.

Bodies like the Irish Society for the Prevention of Cruelty to Children also realised the significance of the Supreme Court decision. The Minister for Justice, Equality and Law Reform did not realise it, however. I read the reports in the newspapers that day and listened to the Minister on "Today with Pat Kenny" that morning. It was clear the Minister did not recognise the urgency of the situation. I reiterate what I have said to the Minister previously, namely, his comments about 15 year old girls and 23 year old men were flippant and missed the point. He spoke about issues like reform, the age of consent and teenagers. Such side issues are irrelevant to the issue at stake, which is the absolute protection of children from sexual predators.

The Minister spoke this evening about the difficulty in finding consensus about the reform of the law, which is irrelevant. The issue we need to address is the lack of protection for children under the age of 15, who are the most vulnerable people in our society. There is a definite consensus that children should be absolutely protected from sexual predators.

I would like to consider the Minister's suggestion that the sexual offences legislation covers cases like those I am worried about because people can be prosecuted under it. I am a solicitor, but I am not an expert on this area of law or on criminal law in general. I have spoken to people who work in this area and I have examined the legislation in question. I refer to section 14 of the 1935 Act, section 2 of the 1990 Act and section 37 of the 2001 Act, which provides for a penalty of 14 years. I have not seen any guarantee that those Acts can be used to prosecute people who have sex with children. There is no direct statement to that effect. I know there is legal opinion that carnal knowledge of a child is automatically a sexual offence, but that is like adding two and two and getting five. It is an issue that needs to be tested by the courts. There is no definition in the legislation that equates "sexual intercourse" with "sexual assault". There is no such wording — I could not find it anywhere. Nobody could tell me there was such a wording. I am aware of the provisions the Minister is using to come to this conclusion, but I do not think they guarantee that a person will be convicted of sexual assault if he or she has sex with a child.

In testing these issues in the courts, children will be put through the mill. It will have to be determined whether they had the capacity to consent and, if so, whether there was consent. Of course those who are accused will allege there was consent. It is in the nature of sexual predators and paedophiles to groom children and manipulate situations to get consent. It is not proper or real consent of the type that we acknowledge as consent. There is no guarantee.

If they can be convicted of sexual assault under the provisions mentioned by the Minister, they will face a maximum penalty of 14 years. It is quite clear that a sexual assault is not considered to be as serious an offence as unlawful carnal knowledge and statutory rape were considered to be. It is not treated as seriously as sexual intercourse with children is treated in other jurisdictions. Consent is not a defence under section 14 of the 1935 Act, which relates to the indecent assault, which is sexual assault, of a person under the age of 15. I wonder whether that provision could be found to be unconstitutional. It is quite possible that the provisions relating to the sexual assault of a child under a certain age could be found to be unconstitutional. It is something we need to address.

The issue at stake is the absolute protection of children from sexual predators. That is the issue. That absolute protection is no longer in place. Many countries throughout the world offer an absolute protection to children under a certain age from sexual predators. Such protection is afforded in the United Kingdom, including Northern Ireland, for example, where statutory rape is an offence. I absolutely accept the point made by those who have said this outcome was not the intention of the legislators or the Minister. We have legislation dealing with statutory rape because we treat that offence with the utmost seriousness. That is why we provide for the maximum penalty, which is life imprisonment. That is the situation in the UK, in Northern Ireland and in many countries throughout the world.

The Minister said last week there was no need to rush any new legislation. He is saying tonight that protections are offered by the sexual assault legislation. By leaving this situation open, he is accepting that this jurisdiction treats the crime of having sex with a child with less seriousness than other countries in all parts of the world. What kind of signal does that send to paedophiles? It was said in one of today's newspapers that, given the way paedophiles tend to communicate with each other and create a buzz on the Internet, we can be sure they are looking at Ireland with interest to see how we respond. That is why it is so important for us to respond speedily on this issue and take it with the utmost seriousness.

The Minister for Justice, Equality and Law Reform should have locked himself away with his experts last Tuesday to draft emergency legislation. He should be doing that now. The Government is giving lots of time to the wages talks, which are important, but this matter is more important, in my view. The type of effort I have mentioned should have been made and should be made now to ensure that legislation is in place to close this loophole as quickly as possible. The longer we take to deal with this urgent issue, the more we are failing in our duty to protect the children of this country.

Derek McDowell (Labour)
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I will have to start by dealing with a number of Senator Tuffy's points. It is undoubtedly the case that section 14 of the 1935 Act was examined in the PG section of the Supreme Court's two-phased dealings, which ended with the CC case. In PG's case, it was found that sexual assault does allow the defence of mistaken belief and its constitutionality was upheld. Likewise, it is undoubtedly the case that anyone under the age of 15 cannot consent to sexual assault. It is also the case that the Legislature increased the penalty in relatively recent years to a 14 year sentence. Moreover, although Senator Tuffy doubts this, every person who has sexual intercourse with a child, who cannot consent, must as a matter of fact, law and logic have committed a sexual assault on that child. He or she does much more than that. At present, he or she commits rape if there is no consent. However, at the very least, he or she commits the offence of sexual assault, which carries a 14 year sentence.

I remind Senator Tuffy that Mr. A, who sought his release and has succeeded at the first instance, received a three year sentence for an offence which carried life imprisonment. Hence, the maximum of 14 years available for sexual assault was more than adequate to deal with his case and would be more than adequate to deal with it if it came to be served again.

Two views have been expressed in the House. One, to the effect that this is not the time to rush ahead, was expressed by Senator O'Toole. The other view, expressed by Senators Tuffy, Brian Hayes and others, is that this is definitely the time to move ahead. I heard of this matter last Tuesday and the drafting of legislation commenced in my office on Wednesday. Senator Tuffy has suggested that I should have closeted myself away with the Parliamentary Counsel. I have done precisely that and I understand that we have already reached our fifth draft. We have spent hours working on this matter, even up to 11 p.m. Hence, the notion that I do not take this seriously or am swanning around pontificating on other subjects is simply untrue. From Wednesday, the day after the Supreme Court decision, my draftsmen have been working continually on this matter. They worked through the weekend and while I would not care to hazard the number of hours I have spent with them, I have done practically nothing else in the intervening period.

I have taken on board the views expressed in this House regarding the victims, who must be terribly upset by the fact that the perpetrators are queueing up to get out. It is the business of the State to ensure that they are given every possible special protection and support at this stage. I haven taken this on board and on my return to my Department I will ensure that, to the extent that it is not happening, it will happen.

Joe O'Toole (Independent)
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Hear, hear.

Derek McDowell (Labour)
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The third point I wish to make pertains to issues raised by Senator Cummins. He is perfectly entitled to be adversarial and to question the truthfulness of what I have said. However, I can tell him that I did not know about this matter. Had I known about it, it would have been much more convenient for me to say so, because stating that I did not know about the matter carried with it an attendant train of problems. Neither I nor the senior officials in my Department knew about it. That is a fact.

Second, the Senator noted that the Tánaiste told the Dáil today that in November 2002, the Department of Justice, Equality and Law Reform was informed of the commencement of proceedings. Yes, it was so informed and an official of the Department immediately contacted the Chief State Solicitor's office, which told him about the commencement of proceedings. Members should be clear that the official was told on the telephone that nothing was required of the Department at that time and that it would be kept up to date about the matter as things developed.

Maurice Cummins (Fine Gael)
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However, that rang no alarm bells.

Derek McDowell (Labour)
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Unfortunately, nothing seemed to happen and the Department was unaware of subsequent developments, including the victory in the High Court, let alone what happened in the Supreme Court. While the Senator can be critical of these things, that is the truth.

It would be much more convenient for me to say that I was monitoring this affair very closely, was reading every submission and all the rest of it. It would be much easier to tell that lie. However, I must tell this House and the people the truth, that is, that there was no communication whatever with the Department from December 2002 until last Tuesday morning with regard to this matter. I will look into this, because it is important that the Department should have its radar screen and that it should be aware of such matters.

However, if the Senator has asked whether it is a matter of integrity or truthfulness, this is the situation. Of course I would have been very interested in the subject. As a lawyer, I would have been fascinated by the manner in which apparently we won in the High Court, unbeknown to me, and that the case went to two hearings in the Supreme Court. It would have been of major interest to me, had I known about it. However, I did not know about it.

I want to make some points regarding the Director of Public Prosecutions. It is true that he had carriage of the appeal in the sense that he shared responsibility with officials from the Office of the Attorney General. The Attorney General himself was not involved. Second, it is also true to say that he sucessfully prosecuted the defence of this case in the High Court and prosecuted it very vigorously in the Supreme Court. It is also true that throughout this time, he kept an official in the Attorney General's office fully aware of the situation. However, the Attorney General himself——

Maurice Cummins (Fine Gael)
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However, he did not inform the Minister.

Derek McDowell (Labour)
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I am simply apprising the Senator of the situation. He did his job professionally and to the best of his ability. While I regret I was unaware of these things, that is the truth of the matter.

The statements made yesterday were also substantially true. If one used a motoring analogy, the Office of the Director of Public Prosecutions was in the driving seat while the Office of the Attorney General was sitting in the back seat, as far as that particular case was concerned. However, these things happen and nothing is to be read into that. No one's integrity is impugned by saying that. However, that is the sequence of events.

Although Senator Norris is not in the Chamber at present, I had better calm him down. It is of course true that no report of the Law Reform Commission spurred reform in his case. It arose from a defeat of Ireland in the European Court of Human Rights.

Joe O'Toole (Independent)
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I will duly report that to the Senator.

Brian Hayes (Fine Gael)
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It should be left at that.

Derek McDowell (Labour)
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I hope Senator O'Toole will report that to him. I make the point that when introducing that legislation in 1993, the former Minister for Justice, Máire Geoghegan-Quinn, made significant changes across the sexual offences area, including prostitution and other matters. Hence, given that a major piece of sex offence legislation was enacted after the Law Reform Commission's proposals were made, it is strange for people to argue that laziness or indifference left the 1935 Act untouched. This is not the case. At the time, no one wanted to touch it. As for all the successive pieces of legislation relating to sex offenders which have gone through both Houses, I reiterate my point, subject to being corrected in respect of this House, that no one has ever proposed an amendment to section 1 of the 1935 Act. Moreover, no one has ever suggested, in an amendment tabled in either House, that there should be provision for an honest mistake.

I wish to make another point regarding an issue raised by several Members, including Senator Jim Walsh. I refer to the concept of double jeopardy. If someone has been brought to prison, having been convicted under section 1(1) of the 1935 Act, people might query whether it would be fair to bring that person back again, prosecute him or her a second time and have him or her serve another sentence. That is a good point. However, the flip-side — and the reason it is a good point — is that the person would have served the time for the offence and would have believed at the time that it was a valid offence. That cuts both ways. If it is wrong and outrageous to regard as a nullity the sentence imposed on a person who is now free having served his or her sentence and to start again, by the same logic it is equally wrong and outrageous that someone who has not yet served his or her time can state this is a fiction and has no reality, and that one's plea meant nothing.

I make the point that what is sauce for the goose is sauce for the gander in this regard. If it is wrong to put someone in double jeopardy, then it is equally wrong to have someone with zero jeopardy for an offence which he or she has admitted.

Joe O'Toole (Independent)
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Is there no legal impediment to proffering another charge?

Derek McDowell (Labour)
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We will find that out in the Supreme Court. It is a matter for the Director of Public Prosecutions. The Latin maxim is "nemo debet bis vexari pro una et eadem causa", which means that a person should not be troubled twice for the same matter. This may or may not come to their aid. However, somebody who has not been troubled at all for what he or she has done is hardly in a position to talk about his or her natural rights when somebody in the other situation is in a similar position.

Senator O'Toole asked about the common good and whether common sense does not enter into the matter. I do not want now to be seen to be anticipating what happens in the Supreme Court. However, since it is undoubtedly the case that every act of sexual intercourse with a child constituted an act of sexual assault, it is certainly arguable at the very least that the common good requires that the use of a non-existent section to prosecute that person should not act as a complete absolution for that offender. I will not go further as people might say that I am trying to argue the case to be heard in the Supreme Court in this House, which I do not intend to do.

Somebody who has served a few years of a life sentence still owes society a grave debt if the life sentence was a just sentence for what that person did. I do not believe the result of all this is that society must write off all its debts while offenders can be absolved of all their debts to society at the same time.

It has been suggested that I was defensive, pugnacious or whatever here today. I find one aspect of my membership of the other House slightly frustrating. Perhaps I will join the Senators one day in this House.

Brian Hayes (Fine Gael)
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That can be organised.

Derek McDowell (Labour)
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On the Order of Business and Leaders' Questions with Deputies addressing issues to my face, giving out and wagging fingers at me, I must sit and remain silent with the Taoiseach or the Tánaiste answering on my behalf. This was my first opportunity to come and give my side of the story. Deputy Kenny sought figures on section 1(2), which relates to intent. Section 2 of the Act is the misdemeanour section. I believe there may have been some crossed wires in that regard. I will attempt to gather those figures, but it will not be easy.

I want Senator Cummins to know that the records are difficult to unravel. A prisoner may arrive in prison with 12 or 15 committal warrants. To calculate which of them are still running, and verify which of them are extant and which of them were not the subject of an appeal, is slightly more complex than the Senator might imagine. The Fine Gael Party has a Bill before the Dáil seeking a register of these matters. Ms Justice Denham is putting such a register in place within the Courts Service without legislation. That project is happening and it would be a great help to have all criminal convictions in all their complexity recorded on a computer so we can know what criminality is being dealt with in the courts.

A Senator asked whether there is such a thing as a sex offenders' register. Yes there is.

Joe O'Toole (Independent)
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Where is it kept and how is it accessed?

Derek McDowell (Labour)
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That is the point. It is not open to Senator O'Toole to peruse.

Joe O'Toole (Independent)
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The question is how it is accessed and not how do I access it.

Brian Hayes (Fine Gael)
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PULSE.

Derek McDowell (Labour)
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It is accessed by the police. People convicted of certain offences are required to be registered for certain periods, which obliges them to notify the State of their whereabouts, whether they are going abroad, changes of address, etc. It enables an eye to be kept on them.

Joe O'Toole (Independent)
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Is there a constitutional problem with it?

Derek McDowell (Labour)
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The question does arise as to whether people who have been prosecuted in the time since the register was introduced can now seek to have their entries expunged on the basis that they are a nullity. This is an issue that would need to be addressed if this was dealt with by judicial review rather than dealt with as a simple habeas corpus, black or white, all or nothing approach.

Brian Hayes (Fine Gael)
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I ask the Minister to give way. I understand the Government intends to take the Bill through the other House on Friday morning and on Friday afternoon to bring it to this House. From what he said to the House earlier, I understand the appeal will be before the Supreme Court on Friday. Is it the intention to put the Bill through the House on Friday afternoon, without a conclusion to the appeal?

Derek McDowell (Labour)
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The short answer is "Yes". As I said earlier, legislation cannot deal with the issues that are being addressed in the Four Courts. Nothing I can do, no magic wand we can collectively wave and nothing we can put into or take out of a Bill can affect the outcome of that case. If the hearing were concluded on Friday and even if judgment is not given immediately, we will get on with the legislative process. I hope the text of the Government's proposals will be available by lunchtime tomorrow so people will have adequate opportunity to study them and that they will be law as quickly as possible. I am not holding them up.

I wish to thank the officials in the Department, who have put in a huge effort. They have spent many hours, working at weekends and up to 11 p.m. on the subject since this crisis first broke like a thunderbolt out of the blue on Tuesday of last week. They have worked might and main to try to address all the issues, for which I thank them. I thank this House for the opportunity to address the matter here this evening.

Paddy Burke (Fine Gael)
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When is it proposed to sit again?

Jim Walsh (Fianna Fail)
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On Friday at 2.30 p.m.