Deputy Callely was in possession, but I understand he has concluded. I call on the Minister to reply to the Second Stage debate.
Sex Offenders Bill, 2000: Second Stage (Resumed).
I thank Deputies for their kind remarks and I express my appreciation to those who contributed to the debate. Like many Members, I believe this is an important Bill and the tone and content of the debate was very constructive.
Everyone will agree that words cannot adequately express the total abhorrence we feel about the misery and suffering inflicted on the countless victims of sexual abuse. There is probably no greater fear among parents rearing children here today than that their children will fall prey to sexual abuse. Understandably, there are differing views on how best to address this issue and all the views expressed during the debate will be fully considered before Committee Stage. The Government believes that this Bill will put in place strong protective measures for the vulnerable children and adults who are preyed upon by sex offenders. It reflects well on this House that there is such support for this Bill. Each of the measures in the Bill can be justified by reference to the threat which it is trying to address, and what is being proposed is proportional and balanced. At this stage, I would like to refer briefly to a number of the comments made by the many Deputies whose contributions ensured such a constructive debate.
Deputy Neville asked why I could not have accepted the Private Members' Sexual Offenders Registration Bill. This House debated the Private Members' Sexual Offenders Registration Bill in May 1998, just weeks before the publication of my discussion paper on the law on sexual offences. The timing of that Bill was clearly premature in that it pre-empted the outcome of a public debate, and would have deprived interested persons and groups of the opportunity to participate in the consultation process. It was worth waiting to have the benefit of those persons' views taken into account in the preparation of this Bill. The Private Members' Bill was also less comprehensive in its approach to the management of sex offenders in the community in that it concentrated on only one aspect, namely the requirement to register, and even on that aspect I had reservations. It would, for example, to take up a point raised by Deputy Higgins, have exempted persons under 17 years of age from the requirement to register. My information is that such an exemption could result in some high risk young persons falling outside the notification requirement.
Deputy Higgins, and also Deputy Clune, referred to a lack of retrospectivity in the notification process because of constitutional restraints. In fact, because of the way I have approached the whole notification procedure in the Bill, an element of retrospectivity is present. The reason is that the notification requirement is a preventative and regulatory measure as opposed to a punitive measure. The degree of retrospectivity is limited only by practical considerations. Further retrospection would be impossible without compromising the accuracy of the records; it would simply not be possible to trace all those offenders no longer in contact with the criminal justice system. That is why there would be little point in going back over existing Garda records, as suggested by Deputy McGuinness. However, if such a person were to act in a way as to pose a risk of serious harm to the public, the Garda could apply to the court under Part 3 for a sex offender order and the making of such an order would automatically make the person liable to the notification requirement.
Deputies Neville and Clune were not quite correct when they said that the Judiciary can decide who is subject to the notification requirement. The notification requirement is a preventative and regulatory measure as opposed to a punitive measure and will be an automatic consequence of a conviction. Seeing as it is almost impossible to predict whether or when most convicted sex offenders will pose a further threat, I considered it appropriate that all would be subject to the notification procedure rather than trying to predict the risk they would pose in the future based on a sliding scale of probabilities.
Deputy Neville was, however, correct in saying that the Bill is silent on disclosure, a point also raised by Deputies O'Sullivan and Fitzgerald. This is far too sensitive an issue to attempt to legislate for. Instead, the Garda, in consultation with other interested State agencies such as the Probation and Welfare Service, will undertake continual risk assessment. Information will be disclosed to other persons only in the most exceptional circumstances in order to prevent an immediate risk of crime or to alert members of the public to an apprehended danger, and then only on a strict need to know basis. Even then it will be a measure of absolute last resort when it may be the only remaining option for preventing abuse. Administrative arrangements will be put in place to this end that will protect the public and, in particular, children.
Antipathy towards sex offenders, in particular paedophiles, runs high. It is difficult to believe that the diffusion of knowledge about their location would not result in, at best, unhelpful public hounding of convicted paedophiles from one locality to another, and, at worst, in violence and disorder, thus discouraging notification to the point where the purpose of the Bill was defeated.
Deputies Neville and Clune asked how, for example, a sporting organisation or a community group could check whether a prospective employee was a convicted sex offender subject to the notification requirements. In discussing this, it is important that we do not confuse two separate systems with different purposes. Since 1994 there have been arrangements in place whereby the Garda Síochána carry out clearance checks in respect of full-time employees in the health care area who would have substantial access to children or vulnerable adults. These arrangements, which were introduced in response to allegations of abuse of children in residential care centres, are implemented by the Garda Síochána in strict adherence to legal advices received in the matter from the Attorney General. A practice had developed whereby employers of prospective employees not coming under the above formal arrangement were, with the written consent of these employees, requesting the Garda for copies of personal data relating to the individuals concerned under section 4 of the Data Protection Act, 1988. I was informed by the Garda authorities that they were advised by the Data Protection Commissioner that section 4 of the Data Protection Act, 1988, did not provide for the disclosure of personal data to third parties, irrespective of whether or not the individuals in question had consented to allow the Garda authorities to respond to the prospective employer and that the Garda authorities, on the advice of the Data Protection Commissioner, had ceased to do so. The Attorney General subsequently advised that section 4 of the Data Protection Act, 1988, was not designed for, and is not appropriate for, use as a vehicle for police clearance.
The fact there are a large number of organisations with responsibility for child care who engage staff, ranging from full-time paid staff to voluntary staff, who are not currently covered by the existing Garda clearance arrangements for full time employees in the health care area is a matter of concern to me and I would wish to see these arrangements extended as quickly as possible to cover any person who would have regular unsupervised contact with children or other vulnerable persons, irrespective of whether or not in a health care setting.
At my request, the Garda Commissioner commenced a comprehensive review of Garda clearance arrangements in the child care area generally. He established an internal working group to recommend improved clearance arrangements which would allow the Garda to respond effectively to the increasing number of requests to expand the system. Arising from the recommendations of the working group, the Garda Commissioner has approved the establishment of an implementation group which will report on the practical and resource implications of establishing a new centralised unit to deal with these matters.
I emphasise that the clearance arrangements that I have outlined will remain separate from the notification requirements under the Bill. The notification requirements will, however, help to ensure that the information held on Garda records in relation to convicted sex offenders remains fully up to date. At present, the address held in Garda records will be the last one known to the Garda, which is usually the one where the offender was residing when convicted. The new requirements will enable the Garda to maintain an up to date record of the names and addresses of convicted sex offenders which will be of great benefit in the prevention and investigation of sex crimes.
Deputies Neville, Clune, McGennis and Dennehy also mentioned reports of paedophiles coming here from England and Northern Ireland to escape registration in their own countries. While I cannot rule out that possibility, there is no evidence of which I am aware of a significant influx of paedophiles into this country as a result of registration requirements in other jurisdictions. In any case, this Bill will ensure that paedophiles from other jurisdictions who come here to escape registration in their own countries, or for any other reason, will receive an appropriate welcome from our criminal justice system if they fail to comply with our notification requirements.
Deputies Neville, O'Sullivan, Crawford and Fitzgerald raised the question of treatment for sex offenders in custody. Public discussion and commentary about this issue frequently implies that there is only one form of rehabilitation programme in place for sex offenders in Irish prisons and that it reaches a very limited number of prisoners annually. This is incorrect. I should explain that there are four forms of direct therapeutic intervention available to sex offenders in prison. All are aimed at enabling such offenders to gain some measure of control over their offending behaviour. The first intervention method is individual counselling which is available in all of the institutions to every prisoner who wishes to avail of it. Counselling is provided primarily by the Probation and Welfare Service and the psychological service of my Department. The second intervention is a multi-disciplinary thinking skills group work programme, which focuses on issues such as anger management, evasion of personal responsibility and relapse prevention. This programme has been available in Cork Prison and Arbour Hill Prison since 1998 and will be introduced in the Curragh by the end of September this year. Staff are at present being selected to deliver the programme.
The third intervention involves the psychiatric service which provides extensive support to prisoners. This is done on a session and a call-out basis as well in response to particular crises. The fourth intervention, and the one which tends to receive the most media coverage, is an extremely intensive offence-focused group work programme which is available in Arbour Hill Prison. A similar arrangement will be introduced in the Curragh later this year.
Deputies O'Sullivan, Jim Higgins and Clune referred to the relatively low number of sex offenders released in 1999 who had participated in the group treatment programme at Arbour Hill Prison. First, it must be borne in mind that many of those released would have availed of the other interventions that I have described. Second, as I have told the House on previous occasions, the reality is that many sex offenders in custody are either unsuited to or are unwilling to participate in intensive group programmes such as the course at Arbour Hill, due to insufficient motivation, emotional immaturity or otherwise. Compulsion is not a realistic or legal option in such cases.
Since the establishment of the Arbour Hill group programme in 1994, all sentenced sex offenders are invited each year to apply for a place on the programme. All applicants are interviewed by the programme delivery team to determine suitability. Various criteria are applied to determine the suitability of an offender. These include the type of offence, amount of sentence to be served, level of danger posed to the community on release and ability to cope with the demands of such a programme. I should explain that group treatment is very demanding on participants who are compelled to confront their offending behaviour openly in group sessions. Many sex offenders in prison are often unwilling to engage in such a process and some who may be willing do not have the emotional or intellectual capacity or maturity to do so.
Central to suitability is the quality and perseverance of the offender's motivation towards treatment. The final decision as to suitability is made by the programme delivery team after careful deliberation and consultation with prison personnel who know the offender well. I have asked the director general of the Irish Prisons Service to ensure that the treatment of sex offenders throughout the prison system is given priority. A multi-disciplinary working group chaired by the director general and comprising representatives of all the relevant agencies and prison disciplines is currently overseeing the introduction of a number of interventions for sex offenders in the Curragh Prison. The possibility of extending the range of multi-disciplinary group work programmes with sex offenders is also under examination.
The ultimate objective for the Irish Prisons Service is to develop and put in place a wider range of rehabilitation programmes for sex offenders than are currently available, to ensure they operate on independently accredited selection, training and service methods and that they reach every sex offender in custody who is willing to participate at some level in their personal rehabilitation and relapse prevention.
Deputy Higgins referred to the benefits to be derived from therapy. I agree, on the basis of research that has been done, that treatment can make a difference in some cases and is worth pursuing as a matter of policy but it would be wrong, in the light of present knowledge, to talk it up too much lest complacency sets in. One group of researchers put forward the argument that the effectiveness of offering treatment to sex offenders in reducing subsequent sex offending has been clearly established while another group argues that, at best, the effectiveness of sex offender treatment programmes in reducing recidivism has yet to be established and, at worst, the treatment of sex offenders does not work. While the treatment of sex offenders in Irish prisons will continue and expand, Deputy Higgins's very definite views may be premature. On the other hand, Deputy Clune's figure of 95% of hardened paedophiles reoffending, regardless of treatment, sounds on the high side. Perhaps that figure hinges on a definition of "hardened paedophile".
Deputies O'Sullivan and Higgins also asked why judges could not be empowered to order sex offenders to undergo treatment in prison, particularly because they will have the power to order counselling as a condition of post-release supervision. The Deputies are not comparing like with like. For example, failure to comply with a condition of supervision will be an offence with criminal sanctions. More importantly, I do not wish at this stage to do anything that could compromise the developing plans of the prison service to provide a wider range of rehabilitation programmes for sex offenders.
Several Deputies emphasised the importance of adequate resources to underpin the Bill and I fully accept that there is such a need. Extra resources will be required by the Probation and Welfare Service to carry out the responsibilities assigned to them under the Bill. The exact requirement will depend on the level of supervision to be provided and the use made by the courts of post-release supervision orders. Resources will also be required to provide counselling programmes as part of the supervision. Discussions will take place between my Department, the Department of Finance and the Probation and Welfare Service regarding the provision of extra resources.
Deputies Moloney and Cooper-Flynn would like the ten days during which offenders must notify the Garda to be a shorter period. The cor responding time limit in the UK is 14 days. This is one of the areas where I thought a deviation from the UK legislation was justified. It is a question of balance. I believe ten days is long enough for offenders to begin to reorganise their lives but not so long that they may overlook their obligation to notify or to relapse into their former way of life. We can argue whether the time should be seven, eight, ten, 12 or 14 days. I consider ten days about right. Deputy Moloney also mentioned that penalties for sex offenders and restrictions on them are more severe in other countries. I disagree with that assertion. Few countries have penalties that are more severe than ours and our criminal law governing sex offences is among the best.
Deputies O'Sullivan, O'Flynn, Fitzgerald and McGennis were concerned that the circumstances where separate legal representation will apply should be extended. I fully understand and share their concern. However, the legal advice available to me is that I have gone as far in this Bill in that respect as is constitutionally possible.
Deputy O'Sullivan also made a case for victims of sexual crimes to be kept more fully informed of proceedings. A number of measures have been introduced in recent years to improve the position of complainants in the criminal trial process. These are set out in chapter 5 of the discussion paper on the law on sexual offences, which I published two years ago. While improving procedures in the trial process is largely an administrative process, if anything can usefully be done in that area through amendments to the criminal law, I will consider it in the context of my general response to the views I have received on those parts of the discussion paper.
Deputy O'Sullivan was concerned about how persons convicted abroad will come to the attention of the Garda Síochána. Obviously, this situation is not as straightforward as in the case of persons convicted here. International police co-operation, which was also referred to by Deputies Fitzgerald and Dennehy, will be important and could be enhanced if other countries brought forward legislation along similar lines to this Bill. There is also the deterrent value; convicted paedophiles are less likely to come to a country where their very presence, if they do not comply with our notification requirements, constitutes a criminal offence. No other country of which I am aware has such a provision.
Deputies Neville and O'Sullivan, while welcoming the Bill, argued that the Bill is not a complete solution to the threat posed to children. There are three places where children have been at risk – in the home, in institutions and on the street. While the Bill provides further protection against abuse in the latter two cases, it would be wrong to underestimate its potential effectiveness in preventing abuse in the home. Abuse in the home is not always by a parent, sibling or relative or by a person without a conviction. It may be by a person who has befriended the parents to gain access to children in the home or it may be by a dedicated paedophile who takes advantage of a vulnerable single mother by befriending her and living in a common law relationship simply to gain access to the child. Where these persons have a conviction for a sexual offence, the requirement to notify the Garda of their current names and addresses will have a preventative and deterrent effect.
The same Deputies drew attention to child pornography on the lnternet and its very real connection to child abuse. While it is no secret that there are difficulties in policing the lnternet, a number of initiatives I have taken make a significant difference. First, the Child Trafficking and Pornography Act, 1998, makes it an offence to distribute, produce or possess child pornography, and that offence covers such activity on the lnternet. That Act also criminalises the dissemination of information about the availability of children for the purpose of their sexual exploitation. Second, the lnternet service provider industry, with assistance from my Department, has established a national public hotline to process complaints of child pornography on the lnternet. Third, I established an interim advisory board to oversee and monitor the implementation of the system of self-regulation. Fourth, work is ongoing in the area of promoting safe use of the lnternet, particularly for children. Work to date has included initiatives undertaken by Barnardos and the Information Society Commission, as well as the introduction of specific lnternet safety awareness initiatives in schools co-ordinated by the national centre for technology in education in Dublin City University.
Deputy Higgins also spoke about child pornography, but having reread his speech I think he was actually referring to a different problem, that is, pornography to which children, and indeed others, may have access and which is highly visible in some shops. This matter was also dealt with in the discussion paper on the law on sexual offences, and will be considered in that context.
Several Deputies spoke about Part IV of the Bill concerning the provision of information for employment purposes. I am not aware of a similar provision elsewhere and in drafting it we have had to take care that it complies with Article 45.2 of the Constitution which concerns a person's right to an adequate means of livelihood. It will operate as a criminal offence without significant resource implications. It is not, for example, intended to employ an inspectorate going around to employers asking about the criminal background of their employees. Neither is it intended to create an offence for employers to knowingly employ convicted sex offenders in jobs involving unsupervised access to children. If such an irresponsible employer exists, he or she might have more to fear from the civil law than the criminal law. As with convicted sex offenders coming here from abroad, this innovative provision will have a major deterrent effect and it will not be difficult to apprehend people who evade their responsibility to inform their prospective employer when the new clearance arrangements are in operation.
Deputy O'Flynn was concerned that employers should be advised when one of their employees is convicted of a sexual offence. The Deputy will be aware that criminal convictions are a matter of public record and persons convicted of a sexual offence after applying for or taking up work involving unaccompanied access to children will be bound, under pain of criminal sanction, to inform the employer of the conviction. Deputy Fitzgerald asked if the employment provisions extended to voluntary work. The answer is yes; voluntary or non-paid work is provided for in section 25(2)(c).
Deputy O'Flynn also expressed some disquiet about the exemptions to the definition of "sexual offence". It is important to emphasise that all the offences referred to will remain criminal offences. We must, however, be realistic and keep our sense of perspective. It is not my intention to expand the notification requirements into areas where there will be little or no likelihood of subsequent danger to members of the public. It should be remembered that protection of the public from further abuse by convicted sex offenders is the primary purpose of the Bill.
Sexual offences can range from serious sexual assaults to minor incidents, such as unwanted touching. Where the victim of a sexual assault is an adult and the perpetrator is not given a custodial sentence, the actual offence is in all probability relatively minor and does not, in my opinion, indicate a need for notification.
Deputy O'Sullivan asked where the Bill deals with sex offenders loitering outside schools. This was an example I gave when explaining how the new civil sex offenders order could be used in practice. Deputy Higgins gave some examples of what he described as lenient and inconsistent sentences for those convicted of sexual offences. While I cannot comment on individual cases, I would point out that the question of sentencing policy for sexual offences was addressed in the discussion paper on the law on sexual offences.
Once this legislation has been passed, I will be examining the remaining issues addressed in the discussion paper, some of which were also referred to in the course of the debate, and if further legislation is required, I will request Government approval for its preparation.
Deputy Briscoe thought that no sex offenders should be let near children, even where they are otherwise supervised. I can empathise with what the Deputy is saying but his point is unrealistic and could have constitutional implications. There are not many jobs where a person will never come into contact with children at some time or another. In any case, where children are supervised there is little scope for abuse.
Deputy Brady argued that sex offenders should pay restitution to their victims. I would argue that most victims would rather see justice being done, that is, by the offender being found guilty by the courts with an appropriate penalty imposed. It is up to the court in each case to decide on the appropriate penalty. One penalty they have the power to impose is to order offenders to pay compensation.
Deputy Dennehy referred to the use of electronic tagging for sex offenders. I have been monitoring developments in this area both in Europe and the USA very carefully. Extensive consultations abroad suggest that such systems as are available to date work best in the case of low risk offenders who are considered suitable for non-custodial penalties and for short periods of between three and eight months. I am awaiting the outcome of tests on what are known as the third generation systems which use satellite or telephone technology and in the meantime I can assure Deputy Dennehy that I will keep the matter under continuing review.
I hope that covers the majority of points raised. This has been a generally constructive debate and I again thank Deputies for their contributions.