Seanad debates

Tuesday, 12 June 2012

Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Bill 2012: Committee Stage (Resumed)

 

SECTION 4

Question again proposed: "That section 4, as amended, stand part of the Bill".

4:00 pm

Photo of Paul BradfordPaul Bradford (Fine Gael)
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We were having some general dialogue on section 4. I made the point that while the exemptions and opt outs in section 4 are necessary and understandable, it reduces what we all thought would be the impact of the Bill at the time of publication. We thought that this Bill would chart a new way forward and would state in black and white legislation that the withholding of information was wrong in all circumstances. I understand why these opt outs and exemptions are necessary, but it is a little disappointing that we have to recognise that the reality and practice of law can sometimes be different to what we would aspire them to be.

The initial stages of the public debate on the Bill focused almost entirely on one issue, namely, the seal of the confessional. By virtue of what the Minister said on Second Stage and the further clarification we have received, that matter is being dealt with in a mature and sensitive fashion.

I would like the Minister to comment on the overall impact of section 4. I know it is not designed to reduce in any way the influence and the value of the legislation. I must say that it is a little bit disappointing to come forward with legislation which we feel is strong enough in every respect to deal with the withholding of information, but then when we have to deal with it in the cold light of day, we see so many categories and areas where provision for an exemption must be made. Perhaps the Minister could reassure us that the Bill is still strong and will be effective.

Photo of Caít KeaneCaít Keane (Fine Gael)
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I will continue where Senator Bradford left off. Is the Minister confident that the Bill is strong enough? I read about regulations that came from Rome on the congruent clerical ethos on the child protection guidelines. It was in response to the Congregation for the Doctrine of the Faith, which we know is answerable and where the boss is the Pope. The document was drawn up in response to its call from Rome. It concluded that there was no legal obligation to report abuse. That is what bishops were told in Rome.

Child protection guidelines issued this week by the Italian bishops conference concluded with an observation that there is no judicial obligation on bishops to report suspected cases of child abuse to the police. That is not the case in this country. I stress that it is in Rome, but we all belong to the same church, the Holy See, which is governed by Pope Benedict, who is the boss of the Congregation for the Doctrine of the Faith, and we all have the same beliefs.

A bishop holds no public office, nor is he a public servant – it is all "hes" because there are no "shes", even though we saw a Catholic minister from a Methodist church in Ballsbridge today and I welcomed her. Under Italian law a bishop is not obliged to report facts on sexual abuse? People are concerned because the document relates to judicial matters. If that is the case in Rome and our boss is there, is the Minister certain that it does not transfer to this jurisdiction? I wish to ensure that we have all the t's crossed and the i's dotted. I know the Irish bishops and I congratulate them on the regulations they have introduced. My understanding is that the regulations in this country are different to those that pertain in Italy. My concern is that the legal regulations we are drawing up will cover everyone in the same way and that the onus is on everyone to report suspected cases of child abuse and that children come first. To put children first should be the first obligation before one's obligation to church and State or any other obligation. We must ensure that the legislation in this country is strong enough to do that.

Photo of Jillian van TurnhoutJillian van Turnhout (Independent)
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I recall that we had a debate on the issue on Second Stage so I will not repeat what I said then. I agree with Senator Bradford that the caveat could mean the public would not be fully informed of the intentions of the Bill. That reinforces the need for a clear information campaign. When the Bill passes through the Houses we must clearly inform the public so that there is no ambiguity on questions such as that raised by Senator Cullinane previously. The reports that have been published, including the Amnesty International report, In Plain Sight, referred to societal responses and the number of people in general who were aware of abuse but did not report it. I wish to ensure that the legislation we are discussing shines a light onto every shadow so there is no child who is at risk, that anyone who has any doubt would report it, and that we will not have situations such as that described by counsellors known as the "resurrected father syndrome" where one goes into counselling and claims the abuser has died. As the trust is built up during the counselling sessions they are resurrected as such because it later transpires that they are alive. There is a sensitivity around such counselling. The Bill has clearly dealt with that. We must ensure that we do not just talk about the confessional. The Bill is about any citizen in this country withholding information which puts a child or vulnerable person at risk. It is as simple as that. We must ensure that is the message that goes out and not the caveats. That is when we get into the detail but for me it sends a clear message which I welcome.

6:00 pm

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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I again thank Senators for their considered contributions. I will first make a general point and then I will deal with the specific queries that have been raised. I wish to be absolutely clear, because there have been interesting reports in the media. I have seen two reports which contain a variety of different things. In one case there was a suggestion that the entire clergy in the Catholic Church is exempt from the provisions of the Bill. On the other hand I have seen articles saying that I am persecuting the church and that the clergy is bound by the Bill. It is extraordinary how one can have such different views in print depending on the story one is writing.

Sections 2 and 3 of the Bill set out clearly criminal offences which apply to children on the one hand and vulnerable adults on the other. Should an individual know of particular offences, not just confined to sexual abuse or sexual offences, there is an obligation to assist the Garda by furnishing to it the information that is available to them. If they fail to meet their obligations under the legislation they can be prosecuted. No one is exempt from prosecution.

There are defences prescribed by the legislation. I heard my good friend and colleague, Senator Bradford, expressing some disappointment that the defences in some way – I paraphrase what he said – water down the legislation. There are defences because, first, it is important that the legislation is fair and proportionate and, second, because this is legislation protective of children and vulnerable adults. It addresses the position of children and vulnerable adults as victims and ensures that it does not erect any barrier to them seeking help in circumstances in which they require help. Likewise, it does not erect a barrier which inhibits a parent making a decision in the interests of the welfare of their children. This would be the case in circumstances where neither the parent nor any other family member is the perpetrator of an offence in any shape or form. The Bill ensures that when they need and seek professional help, be it from the Rape Crisis Centre, some other counselling organisation, a social worker, psychologist or psychiatrist, there is no barrier erected to them seeking that help so they can get what assistance they require.

In the same way victims should not feel under immediate pressure if they have a reservation about giving information to the Garda. It is desirable that they would give the information. However, they should know they have the space and that they are not required to give it. This was a concern expressed in regard to the heads of the Bill by some of the organisations that provide these services. The concern was that if people need help they do not fail to seek it for fear they will find themselves immediately in a Garda investigation at a time of enormous personal stress. Having said that, it is desirable and of huge importance that any individual who is a victim of serious crime, including sexual abuse, report it to the Garda. It is of huge importance that they co-operate with the Garda. The Garda now has a special unit with individuals specially trained to deal with individuals who, sadly, find themselves the victim of such offences. It is very important that the message goes out that the Garda is very well equipped nowadays to provide help. People should not feel scared or intimidated by virtue of having a conversation with the Garda and advising gardaí of what occurred. At a time of enormous personal stress it is recognised that people - first and foremost, children and vulnerable adults - should get help if they require it and they should not feel there is a barrier to them getting that help.

In a nutshell, that is what the defence provisions are about. They are not about a third party being allowed to conceal something for some invidious reason. They are all about the welfare of the victim or the vulnerable adult. In this context, I draw attention to something that encapsulates the philosophy of the defence provisions very well. Section 4(15) which deals with prescribed persons - we have dealt with who they are - reads:

The defence provided for in subsection (14) shall be established only if--

(a) the prescribed person concerned had reasonable grounds for forming the view concerned in relation to the child or vulnerable person concerned for the purpose of protecting the health and well-being of that child or vulnerable person, and

(b) the prescribed person concerned, in forming that view in relation to the child or vulnerable person, as the case may be, concerned--

(i) acted and continues to act in a manner, and

(ii) applied and continues to apply the standards of practice and care,

that can reasonably be expected of a prescribed person forming such a view in the circumstances concerned.

This deals with the prescribed person in a designated organisation who is dealing with issues relating to vulnerable adults or children who seek his or her help. It is particularly important that these provisions are in place, but they do not take away from the serious obligation imposed by the legislation on the generality of people to report serious offences, including child sexual abuse and other offences perpetrated on a vulnerable adult.

There are two issues involved. We will revert to the concept of reasonable excuse, referred to in sections 2 and 3, and the issue raised by Senator David Cullinane and others, namely, privilege. Senator Paul Bradford is right, in that much of the public discussion on the Bill - it is not really a public discussion; it is a tabloid media discussion - has obsessively focused on the issue of either sacerdotal privilege or whatever other privilege there may be in the communications that take place between a member of the Catholic Church particularly, what is being focused on, and another individual. I will emphasise this point and cannot say more clearly that the legislation contains no express exemption that applies to a member of a religious faith.

The next question that arises is whether there is an implied exemption. What is the law in this regard? Could a priest say that, because Mrs. McGrath came to him to say Fr. Murphy had abused her son or daughter, being a priest exempts him from reporting it to the Garda? I am saying nothing about the confessional. By virtue of the individual being a priest, does he have an exemption under the legislation from applying its provisions? Let us presume the individual is a bishop and Mrs. Murphy names the particular priest within a diocese who has abused the child. She tells the bishop that it has occurred and that she wants him to do something about it. Is the bishop exempt? Under this legislation, he has no exemption, explicit or implicit. That is absolutely clear.

I have read with some interest much of what has been written about various court judgments. There is a court judgment in the case Cook v. Carroll which has been produced. Selective bits have been taken from it. It was an interesting case in which judgment was delivered on 31 July 1945 by Mr. Justice Gavan Duffy. For some reason, the law report carries two dates - 14 and 31 July. The judgment was reported on page 515 of Irish Reports for that year. I will explain it in order that Members of the House will know what it is about, as it has been referred to repeatedly in the media. A parish priest interviewed together in his home a girl parishioner who alleged she had been seduced and the parishioner whom she held responsible for the seduction. Subsequently, an action for damages was brought by the girl's mother against the parishioner and the priest was called to give evidence of what had occurred in the interview. He refused to give evidence and claimed privilege. It is stated in the headnote of the report that Mr. Justice Gavan Duffy held that his refusal to give evidence was justified and not in contempt of court, with the court expressing the view that "communications made in confidence to a parish priest, in a private consultation between him and certain of his parishioners, are privileged, and that such privilege cannot be waived by a party thereto without the consent of the priest". Let us assume that this is the current law which it is not for reasons I will come to. This case involved a communication made "in confidence". It was described by the judge as the equivalent of a "without prejudice" conversation with a priest who was trying to assist in solving a problem, either by the parishioner admitting paternity or the mother admitting she had made a false allegation. Clearly, he was unsuccessful in both. It was a confidential conversation, as everyone agreed at the time. If Mrs. Murphy says to the bishop that Fr. So-and-so has abused her daughter and that he must do something about it, is the bishop obliged to report? Of course, he is. It is not a confidential communication, as Mrs. Murphy is making a complaint. It does not fall under this umbrella.

The case had nothing to do with the confessional. Although Mr. Justice Gavan Duffy considered there was a need to stray off on a tangent and talk about the confessional, at some point even he admitted that the confessional was not an issue in the case. What is interesting about this judgment is, in so far as issues arose, that it was speaking about confidences given outside the confessional and reference was made to how "the inviolable secrecy of the sacrament of penance stands alone and unique". He also talked about other things, but this was a conversation outside the confessional. He said:

I have to determine the issue raised in this case on principle and in conformity with the Constitution of Ireland. That Constitution in express terms recognises the special position among us of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith professed by the great majority of the citizens; and that special recognition is solemn and deliberate. The same Constitution affirms the indefeasible right of the Irish people to develop its life in accordance with its own genius and traditions.

This was a judgment based on the Catholic Church having a special position in the Constitution which, as far as I can recollect, we held a referendum to remove in or about 1972. The basic philosophy behind this decision was that it derived from the constitutional peculiarities of the Irish church.

Mr. Justice Gavan Duffy explored English law, on which Irish law had previously relied, and noted that, under it, there was no such privilege granted to members of the Catholic Church. He put this down, more or less, to the fact that England was a Protestant country, that this was a Catholic country and that we dealt with things differently. He then tried to hang his hat on the principle he was enunciating on a very well written and famous book dealing with the Anglo-American system of evidence.

The third edition was published in Boston in 1940 by Wigmore, an individual famous in the law of evidence.

On whether privilege should be granted or not, Wigmore set out a series of principles which were elaborated in four headings. It is worth drawing attention to these because of the superficial nature of the media coverage of this particular issue. I will quote from the book from which Gavan Duffy quoted:

Looking back upon the principle of Privilege, as an exception to the general liability of every person to give testimony upon all facts inquired of in a court of justice … four fundamental conditions may be predicated as necessary to the establishment of a privilege against the disclosure of communications between persons standing in a given relation.

Before I go through the principles, Members should remember this is about privilege in the context of civil proceedings, not criminal. The first principle is, "The communication must originate in a confidence that they will not be disclosed". I approach the bishop and tell him that I want him to tell the Garda about an incident. It is the exact opposite. It is not applicable. The second principle is, "This element of confidentiality must be essential to the full and satisfactory maintenance of the relation". Mrs. Murphy does not care about the relation. Is one supposed to look at the broader relation of the church with all of its communicants? That is an interesting theoretical question but is not directly relevant to what we are dealing with. The third principle is, "The relation must be one which in the opinion of the community ought to be sedulously fostered". That is an interesting one. Would the community in Ireland now regard it is as more important to protect the clergy from allegations of sexual abuse or more important that reports of abuse be given to the Garda? Whatever they might have thought in 1945, I think we currently occupy a different space. The clincher in the whole thing is the fourth principle which states, "The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation." From the perspective of the church – this State does not legislate specifically for one church – it would see it as damaging that communications given to a bishop about sexual abuse would be given to the Garda Síochána. I do not believe the general community, nor our courts in this day and age, would take the view that the damage done to the church was of far greater concern than the likely damage done to the children who might be the victims of perpetrators of abuse.

If one looks behind this judgment, the very principles prescribed from which this judge made his decision are the very principles which a modern court today would probably utilise to ensure in criminal proceedings that one would not have a defence for failing to provide information. There is, of course, an issue that could arise which is the constitutional right to freedom of religion. That, however, is circumscribed in a very specific way in the Constitution. I believe the manner in which it is circumscribed deals adequately with this issue.

As it has got some considerable mileage, it is worth drawing attention to another aspect of this particular judgment delivered by Mr. Justice Gavan Duffy. In it he stated:

The relation that concerns me directly is that of the Irish parish priest towards two of his parishioners and theirs towards him at a crisis, in a moment of gravest anxiety, which he will often be in a much better position to relieve than anyone else. As a rule, he is regarded as being truly the spiritual father of his people and his traditional devotion to the people through generations has won for him in Ireland the prerogative of an extraordinary moral authority; he is, therefore, more likely than others to get the truth in a matter of extreme delicacy and so was more likely to induce the delinquent here (seducer or calumniatrix) to make proper amends. It cannot be taken as a matter of course that Wigmore's conditions, if they apply here, will apply to every confidential communication made by anyone to any priest or any clergyman as such, but I must not travel outside the relation constituted by the consultation in strict confidence of a parish priest as such by a parishioner.

Even Mr. Justice Gavan Duffy recognised in circumstances where the Catholic Church had a constitutional special position that every communication to a priest was not and could not be confidential and omitted from court proceedings. That is absolutely clear. What makes it very interesting is in the context of the final part of the judgment. In it he stated:

[T]reating the question as one of substantive law, I hold that the emergence of the national Constitution is a complete and conclusive answer to the objection that I have no judicial precedent in favour of the parish priest.

The Constitution has been changed since this particular judgment was delivered on in the context of communications that have nothing to do with the confessional and are made directly to a priest, rabbi or rector.

What is particularly interesting is another judgment that never appears in dispatches, the High Court 1999 case Johnson v. Church of Scientology Mission of Dublin Limited. In dealing with the issue of claims of privilege - the Church of Scientology tried to claim the same privilege the priest sought to claim in 1945 - Mr. Justice Geoghegan stated:

It went beyond the relationship of parish priest and parishioner but on the other hand it seems to repudiate the idea that the priest counsellor himself could have a privilege which he would have to waive.

I think that the waters were muddied to some extent in Cook - v - Carroll with all respect to Gavan Duffy J. by the references to the confessor penitent relationship in the sacrament of confession and by references also to the then existing article in the Constitution referring to the special position of the Roman Catholic Church. Gavan Duffy J. appears to have been of the view that there were constitutional and legal effects arising out of the so-called special position of the Roman Catholic Church. However, in other decided cases the view was expressed that it had no such legal effect and that it was really nothing more than a statement of fact. It being a fact, then as a matter of common sense and justice, it was reasonable for the Courts to revive what Gavan Duffy J. says was the pre-reformation common law protecting the seal of the confessional even against waiver by the penitent. However, that is merely an opinion I express because I do not think it arises in this case.

He went on to state he accepted, "there can be situations where a privilege may arise in relation to counselling by a priest or minister". They are different where someone is providing counselling. A privilege may arise if one seeks counselling.

Where does that leave us with this legislation? Yes, it is possible if a priest or bishop is prosecuted under this legislation that they may claim they are entitled to some form of privilege. The legal basis for that claim, as detailed in civil proceedings by Mr. Justice Gavan Duffy and based on the special position of the Catholic church, no longer exists. If they claim it is based on freedom of religion, the courts may be called upon to decide if it is an important matter of religious freedom to grant some general absolution to ministers of religion from ever reporting child abuse. Will the courts take a view on the balance of society's interests, referring back to the principles used by Mr. Justice Gavan Duffy?

Will the courts form the view that "the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation"? I do not believe that where a child or vulnerable adult has been a victim of abuse, the Irish courts will hold that it is of benefit to the State that those who know of abuse conceal it as opposed to it being of benefit to the State and in the interests of children or vulnerable adults that the information be furnished to An Garda Síochána. I do not see this in the Ireland of 2012 giving rise to a decision based on a civil case from 1945 based on the church having a special position.

I apologise if that is a long-winded response. I repeat that under this legislation there is no express or implied exemption granted to anybody. I know capable lawyers can argue all sorts of cases but there is no need for us to address it any further than we have done in the legislation. At some stage there may be a court case and Supreme Court judgment but with the balance of public policy, the interests in the welfare of children and the recognition that children have rights, which I hope will be copperfastened when we hold our children's rights referendum, will ensure that this, in practical terms, will not be an issue.

One or two other issues were raised that are worth mentioning in passing. I probably have covered much of what was raised already. Senator Keane referred to a recent publication in Italy which appeared to come from the Congregation for the Doctrine of the Faith. I know the Senator did not mean it in such a way but the reference was made to our boss being in Rome. The boss, in the context of Irish civil and criminal law, is the Oireachtas and it does not exist in Rome. It is for the Houses of the Oireachtas to prescribe what legislation should be enacted.

Photo of Caít KeaneCaít Keane (Fine Gael)
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On a point of order, the Minister may have misinterpreted what I said.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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I know the Senator did not mean it in that way.

Photo of Caít KeaneCaít Keane (Fine Gael)
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I was indicating that the boss of all Catholics is in Rome.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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Yes, but not in the context of civil law, the role of the State and legislation. The Catholic Church is entitled to have its own canon law and the Jewish religion is entitled to have its own tenets. All of the Muslim and various Protestant faiths have different tenets and principles but when it comes to civil law, the State is agnostic of those. The State's position is to enact laws in the interests of the people of this country. This is a law to protect children and vulnerable adults. Whatever is being said by bishops to other bishops in Rome or Italy, or whatever is said by bishops or other members of the clergy in Ireland, they are bound by our laws in the same way that all of us in this House are bound by our laws. That is the position.

I have not addressed another issue but it is important I do so. Senator van Turnhout and Senator Cullinane raised some issues about the relationship between the Children First legislation and this Bill. There are some differences. Under the Children First legislation there may be an obligation to report to the HSE abuse of a child in circumstances where there is not an obligation to report an incident to the Garda. The HSE would be perceived as providing supports and counselling but the Garda Síochána would put in place an investigative process. There are certain differences and in certain circumstances it will become necessary to report to the Garda and possibly both in respect of legislation.

For too long, too much abuse of children in this State has been hidden and inadequately reported. We are creating a regime under the heads of the Bill being prepared by my good friend and colleague, the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, and it will ensure a degree of synergy and coherence in the manner in which reports are made to the HSE by a broad range of bodies which have obligations. The Bill before us is legislation that may apply to both professionals and the general public to ensure crucial information is furnished to the Garda and, where necessary, investigations and prosecutions can be taken. It will also ensure those who prey on children or vulnerable adults are brought before the courts and not given impunity to prey on a series of different vulnerable individuals, which we have seen happen too frequently in the past.

Photo of Aideen HaydenAideen Hayden (Labour)
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With regard to sacerdotal privilege, the Minister illustrated at great lengths the provisions of the Cook v. Carroll case. That did not involve the confessional but rather a meeting in the priest's office. For the sake of argument, if an abuser in a family goes to a priest in a confessional, saying that he or she is behaving in a way that is wrong but the person cannot prevent the behaviour, is it correct to say that a disclosure made in the confessional while engaging in what the person in question would call the sacrament of penance is not privileged in the context of this Bill, according to the Minister?

Photo of David CullinaneDavid Cullinane (Sinn Fein)
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I wish to comment on a number of points. In his response, the Minister mentioned unhelpful media coverage and the range of different opinions expressed in the media. I agree that these are unhelpful but that is outside our control. In this House we are concerned about the direct question, and Senator Hayden's comments go straight to the heart of the issue. The Minister stated earlier, quite emphatically, that there are no exemptions, which is important. There must be clarity and there should be no grey areas. The media may be reporting different views on either side of the issue, and it is important for there to be absolute certainty and clarity.

The Minister mentioned sections 2 and 3, and I assume they apply to everybody, including priests and any reporting of abuse that may be made in a confession. We are absolutely certain of that. I do not know if there is an issue with the argument in the Bills digest, which is somewhat different from the Minister's opinion. That document indicated that in Ireland, the courts have held that priest-congregant privilege exists in Irish law. Judge Gavin Duffy held in Cook v. Carroll that a priest had sacerdotal privilege, which would give him a right to "refuse in a court of law to divulge any confidential communication whatever made to him as a priest". The document refers to the Wigmore principles mentioned by the Minister, although the wording may be slightly different.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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They are the same.

Photo of David CullinaneDavid Cullinane (Sinn Fein)
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They may be summaries. Perhaps some of the uncertainty has come from us being guided by what is in the document. The Ombudsman for Children and other parties have made submissions on this. I fully accept the Minister's response, which was very comprehensive and should allay any concerns we have.

Some states in the United States go further. They specifically deny both clergy-congregant and clergy-confessional privilege. The examples include New Hampshire, North Carolina, Rhode Island and West Virginia which only recognise attorney-client privilege. There are examples of it being made explicit in legislation in order that there is no ambiguity. There are sensitivities surrounding the issue and we do not want to fuel a different debate that would bring us down a different path, although it is the way some in the media might want us to go. I am comforted, however, by the Minister's response that is both emphatic and clear that there are no exemptions. That clarifies the position for me. Perhaps there will be a Supreme Court case at some point.

I must go back to the remarks of the clergy. The Association of Catholic Priests has stated it will not break the seal of confession and statements have been made in agreement with that position by some bishops. The Minister cannot be held responsible for their remarks, but it is beholden on the Catholic Church to accept the Bill. Once it is passed, it will be subject to it and cannot use sacerdotal privilege as a justification for not reporting child abuse. That must be at the heart of what it does. It might not accept this and we may end up seeing the legislation being challenged in court. However, I am pleased with the Minister's response that this will hold up in any court case that may be taken.

Photo of Jim WalshJim Walsh (Fianna Fail)
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I find the Minister's response measured and reasonable. On section 4, I have some concerns. I understand why the defence has been inserted in section 4(1), whereby if a child or vulnerable person against whom an offence is committed makes it known he or she does not want the offence to be reported to the Garda Síochána, this can be relied upon as a defence in a court case. In many instances, victims do not particularly want the offence to be known; there is a reluctance as they endeavour to deal with it themselves. It is a difficult issue which I have come across.

My concern is that we are not just dealing with one victim. As we are aware, paedophiles tend to repeat and have multiple victims. In protecting a child we might be exposing others. I canvass the notion that perhaps the defence might involve not exposing the victim's name but having an obligation to make it known to the authorities that there was an allegation that was believed to be true against a particular individual. I do not know what they can do then, but at least the system should be triggered in some way to avoid a situation where, when we are rightly trying to protect the victim, we create more.

Along the same lines - I have come across some good analyses of the fragmentation of families - it is interesting that children are at greater risk in particular family groups than in others. The extreme example is that a mother of children cohabiting with a man who is not the biological father of her children. The 1993 socio-scientific analysis carried out by Mr. Robert Whelan in his work, Broken Homes & Battered Children, based on studies conducted in Britain, outlines that a child in such circumstances is 33 times more at risk than a child living with his or her married biological parents. Often times, in such situations the woman is financially vulnerable and, therefore, may feel inhibited in reporting the abuse of her children. Children are easily led and can be made to say they do not want to report something. The defence could be created within the unit, leading to ongoing abuse of a child. There are other family units in which the risk is also much higher, but I will not go further. These are the two polar opposites in this field.

We have spent a lot of time in the debate dealing with clerical sexual abuse. It is an appalling vista and has occurred in the last five or six decades. I recently saw an analysis that showed that it had reached its zenith in the 1960s and 1970s, but there was no plausible reason for this. The highlighting of that fact will, I hope, lead to its decline and eradication.

I am inclined to agree on the issue of congregant privilege. The right of the child supersedes any privilege there might be between a congregant and a priest. However, I do not agree on the issue of the confessional, as it is an important sacrament in the Catholic faith and, as I said on Second Stage, the issue is unlikely to arise in many instances. As there is a degree of secrecy, often the confessor will be completely unaware of the identity of the penitent. If he was so aware, he would be subject to his vows and not just to dismissal from the priesthood but also to excommunication. If we have freedom of religion as a fundamental principle - we look at the number of Christians who are persecuted across the globe and those countries in which there is no freedom of religion - we transgress it at our peril in various ways. Also, it is unlikely that someone who is a perpetrator will go to confession. It would be wrong, however, to focus exclusively on this issue, as it is only a small part of the overall scenario. Over-concentration on it may lead to obfuscation and others feeling they are not subject to the same critical levels of exposure. It is important that people know that the law on this serious criminal offence is unrelenting.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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I thank the Senators for their thoughtful contributions. In response to Senator Jim Walsh, I am also concerned that we do not over-emphasise this aspect of the issue. We know there has been a series of horrendous incidents of abuse perpetrated by members of the church which have resulted in prosecutions, convictions and the publication of many reports. To return to a point made during the Second Stage debate, we also know that children are far more likely to be abused in families by people they know and to a greater extent, the incidence of abuse is not as a result of anything to do with religious faiths, the Catholic Church or any other faith. It is important to keep this in context.

I also think the sacerdotal privilege issue is terribly interesting from a media perspective but is tangential to any of the issues we are dealing with. I will return to my previous point on all the reports, including the Murphy report into the Archdiocese of Dublin and the Diocese of Cloyne, or Mr. Justice Ryan's report on the work of the Commission to Inquire into Child Abuse. None of the investigations arose from abuse that was disclosed to a priest in confession that was kept secret. It was all about abuse in all sorts of other circumstances that was not reported or abusers being in a position to continue abusing children and having multiple victims. Abuse of the sacerdotal privilege is a terribly interesting theoretical issue that excites some people outside this House but is not central to the legislation. It is a side issue. The essential issue is to ensure that the legislation we are enacting makes it a criminal offence to conceal information regarding a serious offence committed against a child or vulnerable adult, including a sexual abuse offence. That applies right across the board to everybody.

Among the issues raised by Senator Jim Walsh was where a child is persuaded to say that he or she does not want to tell the Garda Síochána. Of course, a child may be persuaded to say that now. However, in the past the same child may equally be persuaded not to tell gardaí. It may never occur to the child that the matter should be reported to the Garda Síochána. We live in an imperfect world and one cannot solve every possible problem that arises. We may have a case at some point in time where a person being prosecuted under this legislation makes a case for not reporting child abuse because the child did not want it reported. However, the child may state that is not true and a court will have to decide who is telling the truth. The woman cohabiting with another man who as a result of the pressure he puts on her does not report abuse has no defence under this Bill. This Bill in defining family members makes it quite clear, that if a child is being abused by a family member, one cannot on behalf of a child determine not to report the matter. A medical practitioner or a psychologist may for some reason temporarily not report the case, but if a cohabitant abuses a child, that does not give the parent an exemption to not report the case or exempt the parent from a possible prosecution.

The purpose of the legislation is to put out a simple and coherent message that one has an obligation to report all instances of abuse. Senator Hayden replied to the sacerdotal privilege and the confessional. The legislation gives no exemption to anybody. In the unlikely event of a paedophile exposing the priest to whom he or she made a confession of abusing a child in the confessional and did not report the matter to the Garda Síochána, I cannot guarantee this will result in a prosecution. This will not happen and this is why it is a theoretical issue in practical terms.

Let us take the case of the serial abuser in Australia who kept on going to confession but continued to abuse a multiplicity of children. At some stage it becomes known that a particular priest had known about what the abuser was doing for a very long time. To respond to the question of whether the priest involved in this case could be prosecuted under this legislation when enacted, the answer is "Yes". Will the priest argue the case and put up a defence? He may well do and the Supreme Court will decide it. It is not central to the legislation. The claim being made that a priest or bishop who is made aware of abuse is generally exempt from giving information to the Garda Síochána under this legislation is entirely wrong.

Photo of Aideen HaydenAideen Hayden (Labour)
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Or a journalist?

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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A journalist is not exempt either. There is no journalistic privilege. On occasions Members of this House feel the need to confess to journalists, I think it is most unwise - - - - -

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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Usually the Minister's colleagues.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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- - - - -because normally it appears in an inaccurate form in a Sunday newspaper that tries to sensationalise the mundane.

Photo of David CullinaneDavid Cullinane (Sinn Fein)
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I fully agree with what the Minister said in his response, but there can be occasions where a child who has been abused may in the course of making his or her confession, confess that to a priest, and this is where a difficulty may arise. Responsibility lies with the priest. That was the point I was making, not that the abuser would report the priest.

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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Then there would be the issue of whether the child wanted the abuse reported. If the child wanted the abuse to be reported, the child could report it and would not need to tell the priest. We can go round in circles. This legislation is as robust as it can be. I have no doubt that it may be tested in the courts. It provides a robust criminal law to try to ensure crucial information is furnished to the Garda Síochána by those who have such information.

Question put and agreed to.

NEW SECTIONS

Government amendment No. 9:

In page 10, before section 5, to insert the following new section:

5.—(1) An organisation or body which provides services to children or vulnerable persons or both who have suffered injury, harm or damage as a result of physical or sexual abuse may apply to the Minister, in accordance with this section, to be a prescribed organisation for the purposes of section 4.

(2) An application by an organisation or body under subsection (1) shall be made in the manner specified by the Minister and shall be accompanied by particulars in writing of the following matters in relation to the organisation or body:

(a) the nature and type of services provided by the organisation or body to children or vulnerable persons or both;

(b) the numbers of children or vulnerable persons or both to whom services were provided by the organisation or body before the date of the application for such period or periods as the Minister may specify;

(c) the legal status of the organisation or body; and

(d) the code of practice (if any) of the organisation or body (by whatever name called) with regard to the provision of its services and, in particular,its procedures and protocols for ensuring compliance with this Act.

(3) If, in relation to an application under subsection (2), the Minister is satisfied having regard to the provisions of section 4 that it is appropriate to do so, he or she may prescribe the organisation or body concerned as a prescribed organisation for the purposes of that section.

(4) The Minister shall inform the organisation or body concerned in writing of his or her decision in relation to an application under subsection (2) and of the reasons for that decision.

(5) In this section and in section 6# "services" means services relating to—

(a) the resolution, through guidance, counselling or otherwise, of personal,social or psychological problems,

(b) the care of persons in need of protection, guidance or support,

being services that require a person providing them to exercise skill or judgement in relation to them.".

Amendment agreed to.

Government amendment No. 10:

In page 10, before section 5, to insert the following new section:

6.—(1) An organisation or body prescribed under section 5#, or an organisation or body applying to be so prescribed, which provides services to children or vulnerable persons or both who have suffered injury, harm or damage as a result of physical or sexual abuse may apply to the Minister, in accordance with this section, for a class or classes of persons employed or otherwise engaged by the organisation or body in the provision of those services to be prescribed persons for the purposes of section 4.

(2) An application by an organisation or body under subsection (1) shall be made in the manner specified by the Minister and shall be accompanied by particulars in writing of the following matters in relation to the class or classes of persons concerned:

(a) the nature and type of services provided by such persons to children or vulnerable persons or both;

(b) the expertise and qualifications of such persons to provide such services;

(c) the accreditation or certification (if any) held by such persons in relation to the provision of such services;

(d) the arrangements that the organisation or body has in place for the training and development of such persons to provide such services; and

(e) the procedures and systems that the organisation or body has in place for assessing the quality of the services provided by such persons.

(3) A class or classes of persons employed or otherwise engaged by an organisation or body may not be prescribed under this section if the organisation or body is not prescribed under section 5#.

(4) If, in relation to an application under subsection (2), the Minister is satisfied having regard to the provisions of section 4 that it is appropriate to do so, he or she may prescribe the class or classes of persons concerned employed or otherwise engaged by the organisation or body in the provision of its services as prescribed persons for the purposes of that section and, in particular, the Minister shall be satisfied that members of that class or those classes are qualified to provide such services and to form a view referred to in subsection (14) of that section in relation to a child or vulnerable person in the circumstance referred to in that subsection.

(5) The Minister shall inform the organisation or body concerned in writing of his or her decision in relation to an application under subsection (2) and of the reasons for that decision.".

Amendment agreed to.

Sections 5 and 6 agreed to.

NEW SECTION

Photo of Paschal MooneyPaschal Mooney (Fianna Fail)
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Amendments Nos. 11, 14 and 16 are related and may be discussed together by agreement.

Government amendment No. 11:

In page 12, before section 7, to insert the following new section:

7.—Section 16(2) of the Criminal Justice (Female Genital Mutilation) Act 2012 is amended by the insertion of "for Health" after "Minister".".

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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Amendment No. 14 adds the offence under the Criminal Justice (Female Genital Mutilation) Act 2012 to the list of offences in Schedule 1. These offences are not being added to Schedule 2, as withholding information in relation to those offences against a vulnerable adult is already an offence under the Offences Against the State (Amendment) Act 1998.

In the context of this amendment, I wish to address an oversight in the recently enacted Criminal Justice (Female Genital Mutilation) Act 2012. The commencement provision contained in section 16 of that Act provides that "This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or provisions." However, it fails to clarify which Minister. The reference to the Minister should be to the Minister for Health. We are making this amendment in this legislation.

Amendment No. 16 is a consequential amendment to amendment No. 11, ensuring that the Long Title of this Bill is also providing for the amendment to the Criminal Justice (Female Genital Mutilation) 2012 Act. Of course the legislation relating to female genital mutilation was only published in or about the same time as this Bill and it is of particular importance that it is included within the offences that apply in the schedule that I mentioned.

Amendment agreed to

Sections 7 to 9, inclusive, agreed to.

SCHEDULE 1

Photo of Paschal MooneyPaschal Mooney (Fianna Fail)
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Amendment Nos. 12 and 13 are related and may be discussed together by agreement.

Government amendment No. 12:

In page 13, between lines 27 and 28, to insert the following new paragraph:

"14. An offence under section 2 of the Sexual Offences (Jurisdiction) Act 1996 insofar as it relates to an offence specified in the Schedule to that Act that is also specified in this Schedule.".

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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Amendments Nos. 12 and 13 are minor drafting amendments, which in effect move the offence listed at No. 15 in Schedule 1 to No. 14 of that Schedule. This lists the offence in the same order as the same offences in Schedule 2 and provides for consistency.

Amendment agreed to.

Government amendment No. 13:

In page 14, lines 1 to 3, to delete paragraph 15.

Amendment agreed to.

Government amendment No. 14:

In page 14, after line 18, to insert the following new paragraph:

"20. An offence under any of the following provisions of the Criminal Justice (Female Genital Mutilation) Act 2012—

(a) section 2 (offences of female genital mutilation, etc.),

(b) section 3 (offence of removal from State for purpose of female genital mutilation),

(c) section 4 (acts, etc., done outside State).".

Amendment agreed to.

Schedule 1, as amended, agreed to.

SCHEDULE 2

Question proposed: "That Schedule 2 be the Schedule to the Bill."

Photo of Paul BradfordPaul Bradford (Fine Gael)
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There is a straightforward answer to my question. Why are there different Schedules? Why is the list of offences different?

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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Schedule 1 applies to children and Schedule 2 applies to vulnerable adults. There is a differentiation in some of the offences that would be applicable to them.

Question put and agreed to.

Government amendment No. 15:

In page 3, lines 14 and 15, to delete "OR SOME SUCH OFFENCES" and substitute the following:

"OR CERTAIN ARRESTABLE OFFENCES (INCLUDING CERTAIN SEXUAL OFFENCES)".

Photo of Alan ShatterAlan Shatter (Dublin South, Fine Gael)
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This is a technical amendment to reflect the fact that the offences against children which are listed in Schedule 1 differ to a certain extent to the offences listed in Schedule 2 and which relate to vulnerable persons. This answers Senator Bradford's question. There are two reasons for the differences in the Schedules. First, a number of the offences in Schedule 1 are children-specific offences and I think Senator Bradford anticipated this particular one. Second, there are other offences contained in Schedule 1 that are not in Schedule 2, such as murder and manslaughter.

The offence of withholding information under the Offences Against the State (Amendment) Act 1998 applies to serious offences, excluding sexual offences. Consequently, the offences relating to murder and manslaughter of any adult, including a vulnerable adult, are covered by sections 8 and 9 of the 1998 Act.

Photo of Paschal MooneyPaschal Mooney (Fianna Fail)
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I am grateful to the Minister for his comments and thank him.

Amendment agreed to.

Government amendment No. 16:

In page 3, line 18, after "1998;" to insert the following:

"TO AMEND SECTION 16 OF THE CRIMINAL JUSTICE (FEMALE GENITAL MUTILATION) ACT 2012;".

Amendment agreed to.

Title, as amended, agreed to.

Bill reported with amendments.

Report Stage ordered for Wednesday, 13 June 2012.

Photo of Paschal MooneyPaschal Mooney (Fianna Fail)
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When it is proposed to sit again?

Photo of Paul BradfordPaul Bradford (Fine Gael)
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Tomorrow at 10.30 a.m.