I move: "That the Bill be now read a Second Time."
The Sex Offenders Bill, 2000, which I am introducing today, is most important legislation and deals with an area which is of the greatest public concern to an overwhelming majority of the community. The Bill is also a cornerstone of the Government's unyielding response to those who perpetrate sexual offences and those sexual pred ators in our community. Its provisions are tough and uncompromising but I make no apology to anyone for that. This House must send out the strongest possible message to those in our community who prey on the vulnerable, those unable to defend themselves and, of course, our children. The message, which is at the heart of this Bill, is that the criminal justice system will not tolerate their behaviour, will deal with them swiftly and severely and the public will be protected from their vile activities.
I take no particular pleasure in having to introduce in this House strong measures such as those contained in this Bill. We owe it, however, to the people we serve to take the steps, introduce the measures and amend the law to ensure that their safety, the safety of their families and, in particular, the safety of their children remains a paramount priority for the Government.
The Government programme, An Action Programme for the Millennium, contains a commitment to introduce a register of sex offenders and that commitment was reiterated in the mid-term review of the programme. In May 1998, I published a discussion paper on the law on sexual offences in order to canvass opinions on a range of issues, including a registration requirement for convicted sex offenders. There was strong support for the concept of registration and the Bill has been drafted in the light of the detailed comments that we received on how a registration requirement should work in practice.
The protection of the vulnerable in society is a top priority for the Government. Sex offenders prey on other people, particularly those unable to defend themselves, and their actions can leave their victims scarred for life. Recent tragic cases have brought home to all of us the risk posed to children by paedophiles. There is a clear need for additional measures to strengthen the arrangements already in place to protect the public from sex offenders. The provisions of this Bill, along with recent legislative and other measures, should provide reassurance to the public that whatever can be done to tackle the problems posed by paedophiles and others who pose a risk to vulnerable people will be done.
I mentioned other legislative measures. To appreciate fully the importance of this Bill, it must be viewed as a further stage in the strategy of using the criminal law, in so far as it is possible, to protect persons against sex abuse and attack. There is no need for me to detail here all the relevant reforming legislation of the 1990s but two Acts in particular require mention to place this Bill in its proper context. The Sexual Offences (Jurisdiction) Act, 1996, the outcome of a Private Members' Bill I published in 1995, ensured that persons resident in Ireland could be prosecuted for sexual offences committed against children while abroad. The trafficking measures in the Child Trafficking and Pornography Act, 1998, protected children from being trafficked into, out of or through Ireland for the purposes of their sexual exploitation. That Bill also crimi nalised the creation, distribution and possession of child pornography. The Bill we are now discussing takes the next logical step of protecting vulnerable persons from abuse, attack or the threat of harm from persons who have already been convicted of a sexual offence and who might re-offend.
One thing all three legislative measures recognise is that international borders offer no protection to offenders or would be abusers. Taken together, the legislation more than meets our international obligations in this area and I would urge other countries to bring in similar measures so that the typically devious and manipulative child sex offender will know no hiding place.
The central purpose of the Bill is to impose a requirement on certain sex offenders to notify the Garda Síochána of their names and addresses and any changes to that information to ensure that the Garda Síochána records in that respect are kept fully up to date. The Bill also proposes other important protections. It provides for a new civil court order against sex offenders whose behaviour in the community gives the Garda Síochána reasonable cause for concern that the order is necessary to protect the public from serious harm. It creates a new offence for sex offenders who seek or accept work involving unsupervised contact with children without informing the employer of their conviction. It provides for the post-release supervision of sex offenders by the probation and welfare service and it introduces separate legal representation for complainants in rape and other serious sexual assault cases during applications to adduce evidence or cross-examine on the complainant's past sexual experience.
I will now turn to the main provisions of the Bill in more detail. Part II of the Bill sets out how the new tracking or notification system for convicted sex offenders will work. The system I propose will ensure that the Garda Síochána will have up to date information at all times on the whereabouts of convicted sex offenders. This, in itself, should act as a deterrent to re-offending and so contribute to their rehabilitation. In addition, the availability of up to date data will be of particular benefit to the Garda in the prevention and investigation of sexual crimes. The system will be similar in some respects to those already in operation in Britain and the USA and is generally referred to as a tracking or notification system. The benefits to the Garda and the public in such a system greatly outweigh the relatively minor inconvenience the notification obligation would impose on convicted sex offenders.
The notification obligation would cover all those who, on or after commencement, are convicted or found guilty but insane of a sexual offence specified in the Schedules of the Bill, and those who are, on commencement, still in contact with the criminal justice system, whether awaiting sentence, in prison, subject to supervision, serving a community service order or detained in the Central Mental Hospital. The duration of the notification requirement will depend on the length of sentence as follows – a minimum five year period for those convicte and sentenced to a non-custodial sentence, including a fully suspended sentence, a seven year period for those sentenced to a custodial sentence of six months or less, a ten year period for those sentenced to a custodial sentence of between six months and two years and an indefinite period or lifetime notification requirement for those sentenced to more than two years.
The finite periods are halved in the case of offenders who are under 18 years of age at the time of sentencing.
Notification periods start from the date of conviction. The following system will operate. The Garda will be notified by court certificate on conviction that an offender is subject to the notification requirement. This will allow for rapid updating of the Garda Síochána records. The minimum five year period will be taken as applying until sentence is passed, at which stage the Garda Síochána will be notified by the issue of a further certificate by the court of the sentence passed, which will dictate the duration of the notification requirement. The details which an offender must notify to the Garda Síochána are his or her name, any other name used and his or her address. Should these details change, for example, in the case of the offender moving address, he or she must notify the Garda Síochána of the new details. The offender must also notify the Garda Síochána of any address where he or she stays for a period of ten days or more, or two or more periods amounting to ten days in the aggregate, in any period of 12 months. Notification can be made in person at a district or divisional Garda station or in writing to such a station.
The notification requirement also applies to persons when they go abroad for ten days or more. This will allow the Garda to know whether the person has gone abroad or gone underground in this country, a potentially serious situation. The notification requirement will also apply to qualifying offences committed abroad. Persons who commit offences abroad pose the same risk to vulnerable persons in this country or a greater risk if they are fleeing an obligation to notify in another country. Failure to notify or false notification is a summary offence punishable by a fine not exceeding £1,500 or imprisonment for up to 12 months or both.
Persons who will be subject to a lifetime notification requirement are being given the option of applying to the court, not less than ten years following their release from prison, to be relieved of their obligation to notify the Garda of changes to their name or address. The court can so relieve them if it is satisfied that the common good is no longer served by their continuing obligation to notify.
The offences that will trigger the notification requirement are all those sexual offences committed against children. However, the list is widely drawn, including certain offences such as rape, aggravated sexual assault and sexual assault that know no age limits. Section 3 sets out certain exclusions from the notification requirements of the Act. These exclusions include consensual sexual intercourse with persons aged between 15 and 17 where the guilty party is aged not more than three years older than the other party. Even though such activity is criminal behaviour and will continue to be so, it may have occurred as part of a relationship and the offender will not usually pose a future risk.
Part III provides for a new civil order, which will be known as a sex offender order. This order may be granted, on application to the court by the Garda Síochána, against any convicted sex offender whose behaviour in the community, though not strictly criminal, gives the Garda cause for concern that an order is necessary to protect the public from serious harm from him or her. "Serious harm", which is defined in section 15, means protecting the public or a member of the public from death or serious personal injury, whether physical or psychological. Orders can be sought against anyone with a previous conviction for an offence which is included in the Schedule or the equivalent offences overseas. The order is prohibitory in nature and will last for a minimum of five years or such longer period as the court may provide for in the order. The prohibitions contained in the order will be limited to those which are necessary for the purpose of protecting the public from serious harm by the offender.
The court will not be able to compel a person to do anything, only not to do certain things, for example, loitering in the vicinity of a school playground or other place where children congregate. The particular activity may not be remarkable were it not for the offender's past history of offending. While there is a delicate balance to be struck between the rights of the defendant and the need to protect the community, the need for such an order is dictated by the importance of protecting the public, in particular its most vulnerable members. While the orders are preventative only, once granted they carry the notification requirements of Part II while they are in effect, where such requirements do not already exist. In this way, potentially dangerous sex offenders whose offending is in the past and who are not otherwise covered by the notification requirement, will be made subject to that requirement for the duration of the sex offender order, that is, for a minimum period of at least five years. Breach of an order without reasonable excuse is a criminal offence triable either way with a maximum penalty on indictment of five years in prison.
Part IV introduces another innovative feature under which it will be an offence for convicted child sex offenders to seek or apply for employment, voluntary or paid, involving unsupervised access to children without informing the prospective employer of the fact of the conviction. The new offence is designed to provide a deterrent to unsuitable people seeking access to children through the workplace, where relationships based on trust or fear can develop. At present, there is nothing to deter paedophiles from seeking or accepting such employment. The worst that can happen is that he or she would be refused employment or whatever voluntary position is being sought. Under the proposed provision, the fact of the conviction in itself will not render the person unsuitable to work. It will be a matter for the prospective employer or, in the case of the self-employed, the child's parent or guardian, on being informed of the conviction, to decide if the conviction is relevant to the work or position concerned. Where a person applies for work and does not know or could not reasonably have known that the work involved unsupervised access to children, he or she will be obliged to inform the other party to the employment contract of the fact of the conviction as soon as he or she becomes aware of having such access to children. A person guilty of an offence under this Part will, on summary conviction, be liable to imprisonment of up to 12 months or a fine of £1,500 or both and on conviction on indictment to a fine not exceeding £10,000 or five years in prison or both.
Part V provides, for the first time, for the post release supervision of convicted sex offenders by the probation and welfare service for whom the sentencing court considers the appropriate sentence is one of deprivation of liberty. Persons sentenced to life imprisonment are excluded because on release from prison they are always placed under lifelong Probation and Welfare Service supervision in the community as a condition of temporary release.
The supervision of sex offenders in the community after their release from prison has two aims. First, to help the offender maintain self-control over his or her offending behaviour and, second, to provide external monitoring of his or her post release behaviour and activities. The provision will be particularly helpful for those offenders who have undergone sex offender treatment programmes while in prison and who would benefit from a continuation of appropriate programmes following release from prison.
The system of post release supervision being introduced will enable the courts, at the time of conviction, to sentence a sex offender to a determinate sentence with the latter part of it being served in the community under Probation and Welfare Service supervision. The combined custodial and non-custodial periods will not exceed the maximum custodial sentence available for the crime committed.
In considering whether to impose a sentence involving post release supervision, the court will have regard to the need, first, for a period of supervision after the offender has been released; second, the need to protect the public from serious harm from the offender; third, the need to prevent the commission of further sexual offences by the offender; and fourth, the need for further rehabilitation of the offender. In order to assist it in deciding whether to impose a sentence involving post release supervision, the court may hear evidence or receive submissions from any concerned person, for example, a probation and welfare officer, the prosecution or the convicted person. The supervision period commences on the date the offender is released from prison, taking account of any remission earned.
The court, in addition to the supervision requirement, may impose additional requirements, including the requirement to attend psychological counselling or other treatment programmes run by the Probation and Welfare Service or other bodies or a requirement prohibiting a sex offender from doing things which the court considers necessary for the purpose of protecting the public from serious harm from the offender. Thus, the supervision period will be tailored on a case by case basis according to the needs of the individual offender and the community.
Another innovation in the Bill is the introduction in Part VI of separate legal representation for complainants in rape and other serious sexual assault cases where application is made to adduce evidence or to cross-examine the complainant about his or her past sexual experience. The Law Reform Commission in its report on rape expressed doubts as to the constitutional propriety of separate legal representation for complainants in rape and other serious sexual assault cases in so far as it might alter the balance of the criminal process and deprive the accused of a trial in due course of law. The sexual history of a victim of a sexual assault offence, including rape, is only permitted to be introduced into a trial with the leave of the judge. The application to introduce such evidence must prove that the evidence is relevant. Since such applications are made in the absence of the jury, I am advised that the proposed provision, which is limited to the particular application under the Criminal Law (Rape) Act, 1981, does not pose any constitutional difficulties as the jury will be unaware of the apparent inequality of representation. This would appear to be as far as the Constitution would allow such a provision to go.
Overall, the provisions of the Bill are tough and I make no apology for that. I decided on them after considerable thought and extensive consultations inside and outside the jurisdiction. They will place certain sex offenders under an obligation to notify changes to their names and addresses for the rest of their lives but that will be proportionate to the seriousness of the offence of which they have been convicted by reference to the sentence imposed. The Bill is also innovative in that, for the first time, it introduces into our law statutory provisions for post release supervisions of convicted sex offenders. A further innovation is the provision aimed at preventing those convicted of sexual offences of seeking employment which would give them unsupervised access to children while keeping their past history in the dark.
The Bill also delivers on the undertaking in the programme for Government to provide separate legal representation for complainants in rape cases in so far as it has been possible to do so. The Bill's provisions are comprehensive and consistent and have the overall aim, through measures of deterrence and rehabilitation, of preventing further offending by convicted sex offenders. It is a genuine and important contribution to our efforts to deal with the scourge of sex offending and I am confident it will have a real impact on the protection, in particular, of our most vulnerable citizens.
The Bill is part of a series of measures I am taking against sex offenders and complements protections already in place. The next phase in the process will be to examine all outstanding issues relevant to the criminal law governing sexual offences. These are all addressed in the Discussion Paper on the Law on Sexual Offences. If that examination identifies any further changes that need to be made in the law, I will seek Government approval for such changes. However, we should not delude ourselves into thinking that there will ever be a complete defence against the determined sexual predator. At the same time, the Government must, and will, do all it can to make sure our children and other vulnerable persons will be protected as far as possible.
I commend the Bill to the House.