Thursday, 10 May 2012
Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Bill 2012: Second Stage
I am pleased to present to the House this very important legislation. I commence by highlighting the purpose of the legislation, the primary aim of which is to close an existing loophole in the law. Under the Offences Against the State (Amendment) Act 1998, it is an offence to withhold information in respect of a serious criminal offence. However, that provision of the 1998 Act specifically excludes sexual offences. I am therefore bringing forward this Bill to ensure there is an obligation on persons who have knowledge of all serious offences, including sexual offences against children or vulnerable adults, to inform the Garda Síochána.
The Members in this House would be well aware of the content of published reports, such as the Ryan, Murphy and, more recently, Cloyne reports. These provide a litany of quite shocking revelations concerning the sexual abuse of children and failure to respond to that abuse. Members will also be aware of the further revelations over the past ten days concerning Fr. Brendan Smyth. It is clear from these revelations and the various published reports that if those who had knowledge in the past of sexual offences committed against children had informed the Garda, many children who subsequently became the victims of abuse may have been protected from clerical sexual predators. There is a compelling argument, therefore, for closing the current loophole in the law.
As Members are also aware, the full scale of the abuse of children which has taken place in the past is still not fully known and new information is continuing to emerge. The problem is not confined to offences against children, with a number of equally serious cases of vulnerable adults in institutional care being subject to serious sexual and physical abuse. In drafting the Bill I must be very mindful of the fact that the balance of evidence suggests the majority of abuse of children or vulnerable adults takes place in a person's own home. It is therefore important to reaffirm that we are not just concerned about issues of sexual abuse by persons in authority, be they in the Catholic Church or any other religious group or institutional settings. It is important to state the Bill will apply to all persons, organisations and sectors of society.
It is very important we produce legislation that affords protection from abuse to children or vulnerable persons in any scenario or location. That is what the Bill is about. Members of this House have been very supportive of this Bill when contributing to the consideration of the draft scheme of the legislation at the hearings by the Oireachtas Joint Committee on Justice, Defence and Equality. The Bill before us today has been drafted to include provisions to take account of the issues raised by the joint committee during the course of these hearings.
Under the provisions of this Bill it will be an offence to fail to disclose to the Garda Síochána, without reasonable excuse, information concerning certain serious criminal offences where such offences are committed against a child or vulnerable adult. These serious offences are listed in the Schedules to the Bill and all carry a penalty of imprisonment lasting five years or more. They include most sexual offences and offences such as assault causing harm or serious harm, cruelty to a child, abduction of a child, manslaughter and murder. The Bill also establishes some limited defences for persons charged under the Bill for persons such as a parent, guardian or medical professional acting in the interests of the health and well-being of the child or vulnerable person.
I will outline to the House the key provisions contained in the Bill. Section 1 is a standard interpretation section defining the terms used in the Bill. Section 2 creates the offence of withholding information on serious offences against children. I draw the attention of the House to a number of key provisions in this section. It is only an offence to withhold information where the person knows or believes an offence has been committed and the person has information which he or she knows or believes might be of material assistance in securing the apprehension, prosecution or conviction of the offender. This means a person is not under any obligation to inform the Garda of any vague rumours, innuendo or suspicions, and a person would only commit an offence if he or she has substantive information regarding an offence and fails, without reasonable excuse, to disclose that information to gardaí. This reflects similar offences contained in other Acts, such as the Offences Against the State (Amendment) Act 1998 and the Criminal Justice Act 2011 dealing with white collar crime.
Section 2(2) provides that the legislation will only apply to information that a person receives or becomes aware of after the Bill becomes law. Following consultation with the Attorney General, it was decided it would not be feasible to make it an offence to withhold information where the information had been received before the Bill was enacted. There are potential legal concerns in making the Bill retrospective, particularly with regard to confidential information received prior to the law coming into force. There are also practical issues and I am mindful of the fact that most abuse happens within families. In many cases, the facts of the abuse would be known by siblings or other family members who are not the perpetrators. Making the law retrospective and applicable to information received by a family member or a person who provided support to a victim many years ago would in many instances be unjust, potentially criminalising individuals who had in good faith decided it inappropriate to report an offence to the Garda at the time they became aware of it and who would not be able to show that their decision meets the revised standards required by the Bill.
The new law will, therefore, apply to non-disclosure of information received after the Bill is passed, although it may relate to something that happened before its enactment. This ensures that in respect of future actions, behaviours and responsibilities, there will be certainty and clarity in the law.
Section 2also provides that the victim cannot be guilty of an offence if he or she chooses not to disclose the offence against him or her. This exclusion was welcomed during the consideration of the Bill by the joint committee. Subsection (3) confirms that the victim of an offence covered by the Bill cannot be guilty of the offence of withholding information where he or she does not report the offence to the Garda.
Section 2(4) provides that the Bill is without prejudice to any right or privilege recognised in law. In that regard, this provision is simply to allow the courts to use their normal discretion in considering issues of privilege. There has been much media comment suggesting the Bill has an effect on the "seal of confession" or sacerdotal privilege. As is the position with regard to the 1998 Act, there are no defences in this legislation which would specially apply to information received in the confessional box, nor is there a specific provision relating to the confessional. It will continue to be a matter for a court before which a person is prosecuted to determine whether there is a particular privilege or whether it applies in the circumstances of a particular case.
It must also be borne in mind that existing provisions under the criminal law for the protection of children continue to apply. They include section 176 of the Criminal Justice Act 2006 which makes it an offence for a person with authority or control over a child or an abuser to intentionally or recklessly endanger a child by causing or permitting him or her to be placed or left in a situation which creates a substantial risk to him or her of being a victim of serious harm or sexual abuse. It is also an offence to fail to take reasonable steps to protect a child from such a risk while knowing that he or she is in such a situation.
It is worth stating the issue of sacerdotal privilege has never arisen with regard to the offences prescribed by the 2006 Act, nor in relation to the offences in the Bill currently covered by the Offences Against the State (Amendment) Act 1998. It should be borne in mind that the issue of confession does not arise in the many cases of criminal offences identified in the Ryan, Murphy or Cloyne reports which all relate to complaints of abuse made to the church authorities by the victims or family members or members of the public. Nor, as far we know, is it an issue with regard to the reprehensible activities of the late Fr. Brendan Smyth and many of the other priests who have during the past two decades been convicted and sentenced in the State for child abuse. I am sure this House will be more informed in its discussions on this aspect of the Bill than certain sections of the media which in the context of the Bill have obsessed on the issue and largely ignored the substance of its provisions and the crucial role it will play not only in investigations into child abuse but also in child protection.
Section 4provides for a range of defences for persons acting in the interests of the health and welfare of the victim. It is important to note that nothing in the Bill will impede a victim, or any other person, at any time in going to the Garda Síochána to report an offence. The defences in the Bill relate solely to circumstances where the victim chooses not to do this, or does not have the capacity to do so.They are also necessary to take account of the fact that many children or vulnerable persons who are victims of sexual abuse are at a very young age and often too traumatised by what has happened to them to be able to make an immediate report to the Garda Síochána. As I have mentioned, sections 2(3) and 3provide that the victim of an offence covered by the Bill cannot be guilty of the offence of withholding information where he or she does not report the offence to the Garda. It follows from this provision that a person who does not report an offence, at the request of the victim, also has a legitimate defence. This is set out in section 4(1).
In submissions to the Joint Committee on Justice, Defence and Equality reference was made to the difficulty which arose when the victim did not have the capacity either to report the offence or to make a decision as to whether he or she wanted another person to report it on his or her behalf. As I have pointed out, many victims of abuse do not have the capacity to report offences against them owing to their age or other vulnerability. Such victims should be able to rely on another person to act on their behalf. The Bill provides that where the victim does not have the capacity to form a view as to whether the commission of the offence should be disclosed to the Garda and the offender is not a family member, the parent or guardian can make known, on behalf of the victim, that he or she does not want the offence to be reported to the Garda. An important safeguard in this circumstance is that the parent or guardian concerned must have reasonable grounds for acting on behalf of the child or vulnerable adult and must show that in so doing, he or she acting in the best interest of the child. He or she must also show that he or she had regard to the wishes of the child. These provisions are set out in subsections (2) to (7) of section 4.
Members will note that there is a presumption in section 4(2)that a child under 14 years of age does not have the capacity to decide whether he or she should report an offence. They might wonder why this age has been chosen. It is important to state a child of any age can, if he or she wishes, choose to report an offence. Nothing in the Bill prevents this happening. The reference to the age of 14 years in the Bill is to allow the parent or guardian to act on behalf of the child, where he or she is below that age limit. The age of under 14 years has been chosen because a child of 14 years or over is legally considered to be competent to give evidence on oath or affirmation under the provisions of the Criminal Evidence Act 1992. Having considered the options, the Government agreed that under 14 years is the most appropriate age. The law would be inconsistent if it allowed a person of 14 years or over to give evidence under oath but did not recognise such persons as having the capacity to determine whether information on an offence against them should be disclosed.
The Bill must give separate consideration to what provisions are appropriate if the victim does not have the capacity to report the offence and the offender is a family member. In these circumstances it is considered that it is not appropriate for the parent or guardian to act on behalf of the child because of the potential conflict of loyalties within the family. The Bill, therefore, provides in section 4(8) that in these circumstances a designated health care professional providing services for the child or vulnerable person in respect of the harm or injury caused by the offence may make it known that, in his or her view, the information on that offence should not be disclosed, provided he or she can show that he or she is acting for the purpose of protecting the health and welfare of the child or vulnerable adult. In making these provisions I am trying to ensure the Bill will not discourage a victim from seeking appropriate treatment at a time when he or she is too traumatised by what has happened to go through the additional trauma of making a report to the Garda. It is, therefore, necessary that in cases where the victim is very severely traumatised a medical professional who is treating him or her can decide that it is not in the interests of his or her health and welfare to report the offence at that time. It is important to note that the medical professional will still be under an obligation to notify the HSE of the abuse of a child under the Children First guidelines which are to be placed on a statutory footing by the Children First Bill. The draft scheme of that Bill has been published by my colleague, the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, and is under consideration by the Joint Committee on Health and Children. This separate obligation to notify the HSE contained in the Children First Bill is important to ensure that even where an offence is not reported to the Garda Síochána under this Bill, the victim must receive the appropriate supports, treatment, monitoring and protection. I anticipate that the number of cases in which it will be appropriate for a medical professional to decide on behalf of the victim that a report should not be made to the Garda in these circumstances will be limited in number. In cases in which the victim is very severely affected by the offence, this provision will be vital in order to provide the most appropriate protection for his or her health and wellbeing and not put him or her under unnecessary pressure.
The Bill provides in section 4(10) for persons providing counselling services to have similar defences to those available to a medical professional treating the victims. In submissions to the Oireachtas joint committee a number of organisations which provide counselling and support services for victims of sexual abuse made the point that they often had to work with victims over an extended period of time before the victim could reach a decision whether to report an offence to the Garda. I am anxious that in such circumstances the victims are not discouraged from accessing supports which they need because of concerns that in seeking them it will be a requirement to immediately report the crime to the Garda for the purposes of a criminal investigation or subsequent prosecution.
Section 5sets out the penalties for persons guilty of an offence under the Bill. It provides for penalties which vary from a class A fine and up to 12 months in prison to a sentence of up to ten years in prison, depending on the seriousness of the offence against a child or vulnerable adult in regard to whom information has been withheld. The ten year penalty would apply in the most serious cases such as the withholding of information concerning the murder of a child.
Section 6provides for the amendment of the Offences Against the State (Amendment) Act 1998 to ensure there is not any overlap or any duplication between the provisions of that Act and this Bill. Section 7 is a standard provision allowing the Minister to make orders prescribing any matters which require such a provision. Section 8 is a standard provision providing for expenses and section 9is the Short Title and commencement provision.
Schedule 1 sets out in detail the offences against children which must be reported to the Garda. Schedule 2 sets out in detail the offences against vulnerable persons which must be reported to the Garda. The offences are listed individually to provide complete clarity regarding the type of offences that constitute serious offences which must be reported under law.
Members will be aware this Bill is one element of a suite of legislation to protect children and vulnerable persons to which the Government is committed. The Bill has been drafted to compliment the operation of the upcoming Children First Bill and the national vetting bureau Bill. It might be helpful to the House if I elaborate further on how the Bill is to harmonise with the proposed Children First Bill, the scheme of which is under consideration by the Oireachtas Joint Committee on Health and Children. The Government is bringing these two separate and distinct measures in recognition of the very separate and distinct roles of the Garda Síochána and the HSE with regard to the protection of children and vulnerable persons. Only the Garda can investigate a criminal offence against a child or vulnerable person. Only the HSE can provide the necessary supports and monitoring of children at risk.
The Children First Bill will address the role of the HSE. It requires that relevant persons in a position to assess children at risk of abuse must provide the HSE with the information necessary to monitor and provide supports to a child who may have been abused. Any criminal investigation will be conducted in a parallel investigation by the Garda.
This Bill clearly states that it is in addition to and not in substitution for any other reporting requirements. This recognises that the requirement to report information to the Garda and the requirement to report information to the HSE are separate and distinct measures which are necessary to protect children and vulnerable persons. I am also pleased to inform the House that I will publish shortly the Bill to place the vetting of persons working with children and vulnerable adults on a statutory basis.
I thank the Members of this House who have already provided support for this Bill when contributing to the hearings by the Oireachtas Joint Committee on Justice, Defence and Equality. I am sure the debate in this House on this Bill will be very informed and constructive. I welcome the opportunity to commence the debate on the Bill in this House before it goes to the other House and I look forward to hearing what Senators have to say.