Amendment No. 2 is an alternative to amendment No. 1, amendments Nos. 7, 8 and 10 are related and amendments Nos. 9 and 11 are consequential. Amendments Nos. 1, 2, 7 to 11, inclusive, may be discussed together. Is that agreed? Agreed.
Child Trafficking and Pornography Bill, 1997: Report and Final Stages.
I move amendment No. 1:
In page 3, to delete lines 21 to 24 and substitute the following:
"produced, and
(b) any tape, computer disk or other thing on which any such representation is recorded;".
These are technical drafting amendments. Amendment No. 1 is similar to amendment No. 2 in the name of Deputy Upton and proposes to delete paragraph (b) of the definition of audio representation. That paragraph, which refers to a copy of the various types of representation described in paragraph (a), is inappropriate since the latter are not something tangible and one cannot, therefore, take a copy of them. The remaining amendments simply change the drafting of paragraph (c) to accord with what is already in paragraph (a).
Amendment Nos. 7 to 11 are drafting changes to the definition of visual representation. On Committee Stage Deputy Upton and I tabled amendments to cater for the concept of a copy of any accompanying sound and the effect of those is on paragraph (d) of the definition. The parliamentary draftsman has since advised that the whole of paragraph (d) would benefit from removal and that in its place the reference to accompanying sound should be inserted into paragraphs (a) and (c) respectively. Amendments Nos. 7 and 10 do just that.
Amendment No. 8 changes the words "a copy" to read "any copy" in paragraph (b). It is designed to convey the fact that not all the visual representations in paragraph (a) can actually be copied. As in the case of certain audio representations, certain visual representations, such as film or video representations, have intangible elements in them and are, therefore, incapable of being copied while others, such as photographs, being physical and tangible, may be copied. These amendments arose from changes made to the definitions on Committee Stage. They are purely drafting amendments and do not change the substance of the definitions. I hope they will be acceptable to the House.
Dr. Upton
Yes, the Minister is correct. I am happy to accept the alterations made which are purely technical.
Amendment agreed to.
Amendment No. 2 not moved.
We come to amendment No. 3. Amendment No. 4 is cognate. I suggest, therefore, that amendments Nos. 3 and 4 be taken together.
I move amendment No. 3:
In page 3, line 28, before "relates" to insert ", in the case of a document,".
These amendments are essentially drafting changes. They make it clear that the term "relates" in paragraphs (i) and (ii) of the definition of visual representation applies only in the case of a document as distinct from, in the case of images, pictures. This was always the intention but it will now be more precisely provided for by the addition of the words "in the case of a document". The parliamentary draftsman has advised that the word "shows" which appears before the word "relates" in paragraphs (i) and (ii), respectively, necessitates the reason for this qualification.
There is an additional and important point that clearly it is desirable to have as much clarity and precision as possible when dealing with criminal law offences. I commend the amendments to the House.
Amendment agreed to.
I move amendment No. 4:
In page 3, line 31, before "relates" to insert ", in the case of a document,".
Amendment agreed to.
We come to amendment No. 5. Amendment No. 6 is an alternative. I suggest that amendments Nos. 5 and 6 be taken together.
Bill recommitted in respect of amendment No. 5.
I move amendment No. 5:
In page 4, between lines 19 and 20, to insert the following:
"(I) any book or periodical publication which has been examined by the Censorship of Publications Board and in respect of which a prohibition order under the Censorship of Publications Acts, 1929 to 1967, is not for the time being in force,".
The effect of my amendment is to exempt from the definition of "child pornography" any book or periodical publication which has been examined by the Censorship of Publications Board, and in respect of which a prohibition order under the Censorship of Publications Acts is not for the time being in force. My amendment differs only slightly from that in the name of Deputy Upton, mainly in that it refers to a prohibition order for the time being in force. This is the terminology used in the Censorship of Publications Acts and is, therefore, preferable, from a drafting point of view. I hope it is acceptable.
Dr. Upton
The amendment is acceptable. I am happy that the Minister has accommodated the points we sought to make in the amendment.
Amendment agreed to.
Amendment reported.
Amendment No. 6 not moved.
I move amendment No. 7:
In page 4, line 33, after "representation" to insert ", any accompanying sound".
Amendment agreed to.
I move amendment No. 8:
In page 4, line 35, to delete "a" and substitute "any".
Amendment agreed to.
I move amendment No. 9:
In page 4, line 35, after "document," to insert "and".
Amendment agreed to.
I move amendment No. 10:
In page 4, line 37, to delete "is recorded, and" and substitute "and any accompanying sound are recorded.".
Amendment agreed to.
I move amendment No. 11:
In page 4, to delete line 38.
Amendment agreed to.
Dr. Upton
I move amendment No. 12:
In page 5, line 20, to delete "such a child" and substitute "a child for such a purpose".
This amendment is designed to achieve two functions to improve the drafting of the Bill and to ensure that someone who innocently provides accommodation is not caught within the terms of the Bill.
I am happy to accept this amendment. I thank Deputy Upton for identifying an ambiguity in the wording which his amendment corrects.
Amendment agreed to.
: We come to amendment No. 13. Amendment No. 14 is an alternative. I suggest we discuss amendments Nos. 13 and 14 together.
Dr. Upton
I move amendment No. 13:
In page 5, line 31, to delete "a term not exceeding 14 years" and substitute "life".
The purpose of this amendment, as indicated on Second Stage, is to increase the penalties for child kidnapping for the purpose of sexual exploitation.
(Mayo): We are talking about the trafficking of children, the taking of children, their abduction and their usage for sexual exploitation. One has only to read the daily descriptions in the newspapers of court cases to learn that unfortunately, in the past number of years, the number of cases of child abuse which has come to light has been extraordinary by any standard. The big question is whether it was always going on, whether it was undetected or if the recent surge is a new phenomenon. The important point is that cases are being detected, that the perpetrators are being brought to justice and that heavy sentences are being handed down. I hope the heavy sentences will act as a definite deterrent to any kind of abuse or exploitation of children. It seems to be the only way to deal with it. From the point of view of the abduction of children and their usage for sexual exploitation purposes, this is something we have not managed to detect or uncover on an organised basis. However, we have seen in other jurisdictions, particularly in the Continent, cases of children being abducted and on the missing list for some considerable period. There has been a sorry saga of missing bodies, mutilated, being concealed under floor boards and in cupboards or back gardens. Where such an offence has happened there is a definite possibility of similar offences here.
In view of the recent publicity in relation to sexual offences, we have to set down in the clearest possible terms the maximum penalties from the point of view of deterring such people in engaging in the exploitation or the abduction of children for sexual purposes. We are asking that the term be 20 years but not necessarily 20 years. It is not the same as a mandatory minimum sentence which will come into effect, if the Minister has his way in relation to the Criminal Justice Bill, which will be before the House in the afternoon. We are asking that the term not exceed 20 years, in other words that the court will have absolute discretion in relation to exercising its jurisdiction to decide the term. The term could be any number of years, up to a maximum of 20.
The offence in section 3(1) of trafficking children across international borders for the purpose of their sexual exploitation carries a maximum sentence of life imprisonment. The ingredient in that offence which warrants such a severe penalty is the fact that in the commission of the offence, children are moved across international borders away from their own communities and separated from their own culture and language. The offence in section 3(2) of taking, detaining or otherwise using children for the purpose of their sexual exploitation lacks the international cross-border aspects of the section 3(1) offence. Accordingly, it warrants a lesser penalty, proportionate to the lesser, albeit still serious, nature of the offence.
In the Bill as initiated section 3(2) offences carried a penalty of up to ten years' imprisonment. On Committee Stage this was increased to 14 years by way of amendment in my name agreed by the committee.
Amendments Nos. 13 and 14 in the names of Deputies Upton and Higgins, respectively, which have been retabled for Report Stage propose to increase the penalty of 14 years to life and 20 years respectively. As I pointed out on Committee Stage, a 20 year prison sentence is, equally, if not more punitive than a life sentence since, in practice the average amount of time a lifer spends in prison can be well under 20 years. On that view the result of the Deputies' amendments would be, effectively, to subject all the offences in section 3 to one and the same penalty. The difficulty with that approach is that it fails to take account of the fact that there is a distinction between the offences. Section 3(1) offences are without doubt of a more serious nature since they involve taking children out of their own country and into what will be, in all likelihood, a completely different environment and culture. The severity of these sentences is rightly reflected in a punishment of life imprisonment. To subject the section 3(2) offences to a similar penalty would not take due account of the differences between the two subsections.
Section 17 of the Non-Fatal Offences Against the Person Act, 1997, which makes it an offence to take or detain a child to remove him or her from the lawful control of any person having such control, carries a maximum penalty of seven years imprisonment. In the committee, I doubled that penalty where the taking or detaining is for the purpose of a child's sexual exploitation. That is as far as I can go.
I appreciate the Deputy's desire to put in place the severest penalties for what are horrific offences but we, as legislators, cannot close our eyes to the fact that there is a distinction between the offences in section 3. The principle of proportionality of punishment must be applied. I am satisfied the existing penalty differential is consonant with that principle.
When Ireland's first report to the United Nations committee on the rights of the child was being considered in Geneva last January, one member of the committee, while commending us on our pioneering legislation on the sexual exploitation of children, was somewhat shocked to hear that the penalties provided for in this Bill ranged as high as life imprisonment. While I do not have any difficulty defending the one penalty of life imprisonment I am providing for, I would suggest that the comment of the committee member should give us cause for some thought. In all the circumstances, I hope the House will appreciate that I am not in a position to agree these amendments.
Amendment, by leave, withdrawn.
Amendment No. 14 not moved.
Dr. Upton
I move amendment No. 15:
In page 5, line 41, after "child," to insert "uses the child, or".
The purpose of this amendment is to extend the offence to cover a case where the child's custodian engages in sexual exploitation rather than simply allows it to happen.
I am rather surprised that Deputy Upton is moving this amendment since its effect has already been incorporated into the Bill under an amendment in my name taken on Committee Stage. The result of my committee amendment is the new section 3(2)(b) of the Bill which makes it an offence for any person to use a child for the purpose of his or her sexual exploitation. My amendment was an alternative to this amendment which Deputy Upton tabled but did not move on Committee Stage.
As I explained in committee, the difficulty I had with Deputy Upton's amendment was that it would extend the scope of section 4 beyond the persons having the custody, charge or care of a child allowing the child to be used for the production of child pornography. This is something we were advised against when drafting the Bill to avoid overlap with other sections. Instead, I opted to extend section 3(2) to include the offence of "using", thus the new section 3(2) offence is now applied to persons who take or detain a child for the purpose of his or her sexual exploitation, to persons who use a child for the purpose of his or her sexual exploitation and to persons who organise or facilitate such taking, detaining or use. In so doing, I cast the net more widely than amendment No. 15 because, first, sexual exploitation has the wide meaning assigned to it by section 3(3) and includes much more besides the production of child pornography and, second, the "using" offence now applies to any person, regardless of whether he or she has custody, charge or care of the child.
I am confident, therefore, that the Bill as it stands ensures that the use of children for their sexual exploitation or in the making of child pornography is fully catered for. Accordingly, I fail to see the need for this amendment which, though not moved in committee, was nevertheless enshrined in the Bill in a wider format by way of alternative amendments I brought forward on Committee Stage.
Amendment, by leave, withdrawn.
We now come to amendment No. 16. Amendment No. 17 is an alternative, No. 19 is cognate and No. 20 is an alternative to No. 19. It is proposed that we take amendments Nos. 16, 17, 19 and 20 together. Is that agreed? Agreed.
I move amendment No. 16:
In page 5, line 44, to delete "10 years" and substitute "14 years".
In committee I undertook to re-examine whether the maximum prison penalties in sections 4 and 5 should be increased. I now propose to increase both penalties from ten to 14 years. Fourteen years is consistent with the penalty attaching to the section 3(2) offence of taking or detaining a child for the purpose of his or her sexual exploitation. Deputy Higgins is proposing that the sections 4 and 5 penalties be increased to 20 and 25 years respectively.
I do not intend to get into what I would describe as a competitive exercise of proposing the most severe penalty. The principle of proportionality of sentence must be preserved. Section 4 is based on a provision in the Children Act, 1908, which makes it an offence for a person who has the custody, charge or care of a girl to cause or encourage the seduction, prostitution or unlawful carnal knowledge of that girl. The maximum term of imprisonment in the 1908 Act is two years. The breach of trust involved in the offence in section 4 is no greater than that in the 1908 Act offence.
While I readily agree that two years is not adequate in the 1908 Act, a seven fold increase to 14 years under this Bill is adequate. In the circumstances, I cannot accept Deputy Higgins's amendments. I do not want a situation to develop where a person allowing or causing an offence to occur is penalised further than a person who actually carries out the abuse.
I have a similar difficulty with Deputy Higgins's amendment No. 19 which proposes to increase the section 5 penalty from 14 to 25 years. Twenty-five years is, for all practicable purposes, likely to be greater than a life sentence. It would also be completely out of line with penalties for the same offences in other countries. In Canada, for example, the maximum penalty for child pornography offences is ten years. In the United Kingdom, under their Protection of Children Act, 1978, the maximum penalty is just three years.
In proposing to increase the sections 4 and 5 penalties from ten to 14 years, I am going as far as I can go in accordance with the requirement for proportionality of punishment. I hope my amendments will be accepted.
Amendment agreed to.
Amendment No. 17 not moved.
We now come to amendment No. 18. Amendments Nos. 21 and 23 are related so the proposal is that we discuss Nos. 18, 21 and 23 together, by agreement.
I move amendment No. 18:
In page 6, line 13, to delete "section 6(2)" and substitute "sections 6(2) and 6(3)".
The effect of these amendments would be to extend to section 5 the defence in section 6(3) of possession of child pornography for bona fide research purposes. Such a defence was inserted in section 6 on Committee Stage. There is no logical reason it should not also cover the offences in section 5.
Amendment agreed to.
I move amendment No. 19:
In page 6, line 32, to delete "10 years" and substitute "14 years".
Amendment agreed to.
Amendment No. 20 not moved.
I move amendment No. 21:
In page 6, lines 37 and 38, to delete "subsection (2)" and substitute "subsections (2) and (3)".
Amendment agreed to.
Dr. Upton
I move amendment No. 22:
In page 7, line 6, after "or" to insert "where he or she proves that the possession was for another lawful and reasonable purpose, or".
The Minister has broadly dealt with the concerns behind this amendment and, accordingly, I do not wish to press it.
Amendment, by leave, withdrawn.
I move amendment No. 23:
In page 7, line 10, after "under" to insert "section 5(1) or".
Amendment agreed to.