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Dáil Éireann debate -
Wednesday, 16 May 2001

Vol. 536 No. 3

Adjournment Debate Matters. - Sex Offenders Bill, 2000: Report Stage (Resumed).

Debate resumed on amendment No. 38:
In page 10, between lines 40 and 41, to insert the following:
"(d) is detained in hospital and is medically certified as being incapable of complying with the notification requirements of this Part.”.
–(Deputy Neville.)

There are other practical difficulties with the amendment such as when the doctor would certify the offender as unfit to comply and at what point would that certification be lifted. It would be normal practice to excuse an offender who did not comply with reporting to the gardaí while on temporary release from prison, for example, where evidence of detention in hospital was produced. I have no reason to believe that the gardaí will not exercise similarly appropriate discretion in the case of offenders subject to the notification requirements in the same way. To do otherwise would be to risk wasting court time with unnecessary prosecutions for non-compliance.

This is not the kind of provision normally found in legislation. I am informed by the Parliamentary Counsel that acceptance of the amendment could therefore have implications for how other legislation is interpreted. Following detailed consideration of what acceptance of the amendment might entail, I find unfortunately that I am unable to accept it.

The Minister stated on Committee Stage that this seems to be a sensible amendment and that he would have discussions on how to address the problem. He is now stating that it is not a problem and is no longer a sensible amendment. How can a person who is in hospital register? We are putting into legislation detailed regulations on how people must register on the sexual offences register. Failure to do so is an offence which is punishable as set out in the Bill. The Bill does not deal with the case where a person is unconscious. It says that a person, without qualification, must within seven days register on the sex offenders' register. The Minister is saying that the gardaí have discretion in applying the law in such cases. We have had cases where gardaí have not used that discretion. Sex abuse is a very emotive issue, and rightly so. On a later amendment we will see how emotions in other countries got totally out of hand. Surely if the Bill passes in its present form a Garda could charge a person who is in hospital and is unable to register. Also, a person might have moved outside their area to a hospital, which is a usual occurrence.

I made my point already in support of Deputy Neville, but there has been quite a time gap since our last discussion. The point made by the Deputy is clear, namely, if a person is unable to write to or appear in person at a Garda station it would seem sensible and not in any way diluting the legislation to have a provision whereby that person is facilitated and where the unusual situation, though one that could arise, is catered for.

I take it the Minister is going to leave it solely at the discretion of the gardaí as to whether they prosecute a person who is unconscious in hospital for not registering.

Let us be pragmatic about this. I do not envisage a situation whereby a member of the Garda Síochána would waste his time bringing a person who is unconscious into a courtroom. It makes no sense to me—

The Minister should not mince his words. This could happen six months later.

It does not make much sense to me.

Amendment put and declared lost.

Acting Chairman

Amendment No. 40 is related to amendment No. 39 and both amendments may be discussed together by agreement.

I move amendment No. 39:

In page 10, lines 42 and 43, to delete "which is a divisional or district headquarters".

This is to make things less bureaucratic and easier for the person to comply with the legislation. I propose to take out the reference to the fact that a person has to go to a divisional or district headquarters. I am suggesting a person should be able to go to any Garda station in order to comply with the obligation to register, either initially or on moving. The current provision seems unnecessarily bureaucratic and not trusting in terms of the smaller Garda stations passing on information to their district or divisional headquarters.

This is a very reasonable amendment which reduces the bureaucracy surrounding the issue. It would make things easier and facilitate registration. Surely there is no difficulty with this amendment.

The effect of the amendment would be to allow for notification at any Garda station or the offender's local station. This might not be the most efficient way of ensuring records are always up to date as smaller stations may not be computerised or fully computerised. My advice is that the smaller stations could not currently cope with persons notifying them in person. Also, some of the smaller stations are only open for a few hours every week making notification by that method difficult. Advances in technology may allow for other means of notification in future, and provision is made for any such means to be prescribed in regulations. Apart from postal notification, notifying in person at a district or divisional headquarters will be no hardship. There is a wide geographic spread of such headquarters, totalling 124 stations, of which 25 are divisional headquarters and 109 are district headquarters. For these reasons I cannot accept the amendments.

My amendment contains no obligation on the person to go to the local station. I am seeking more choices for the person. I see no logic in saying that a local Garda station would not pass on to the relevant headquarters information provided by a person necessary for compliance. If I committed a driving offence and was told I had to submit my tax and insurance to a Garda station, I presume that information would be passed on. This would be another of the many duties of local Garda stations. I cannot understand why the Minister will not accept the amendment, which purely aims at getting rid of some of the bureaucracy attaching to what may be a traumatic event for the person. We accept the person may have committed very serious crimes but, at the same time, we want to ensure people comply as far as possible with what is required in the legislation so we have a complete register. It is unnecessary to make the process more difficult.

The simple truth is that the green man does not take such messages.

Is the Minister closing Garda stations?

There is no intention of closing Garda stations, something I have made clear on numerous occasions. The green man does not take such notifications. In addition, even if one was to send a letter to a station which opens for a couple of hours per week, it might take a week before it was received by the garda concerned.

Is that so?

There are time constraints and we have to be sensible. I am not saying Deputy O'Sullivan is not being sensible, but she might be a little misguided.

I hope sometimes there are flesh and blood men and women as opposed to green men in those Garda stations which are there to look after their area and their community. I will not press the amendment as it is not a matter of life and death and we have much more important issues to discuss.

Amendment, by leave, withdrawn.
Amendment No. 40 not moved.

I move amendment No. 41:

In page 11, line 17, to delete "10" and substitute "7".

Amendment agreed to.
Amendments Nos. 42 and 43 not moved.

I move amendment No. 44:

In page 11, line 19, to delete "10" and substitute "7".

Amendment agreed to.
Amendment No. 45 not moved.

Acting Chairman

Amendment No. 46 is in the name of Deputy O'Sullivan. Amendment No. 48 is related and amendment No. 49 is an alternative. Amendments Nos. 46, 48 and 49 may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 46:

In page 11, line 21, to delete "for a period of an indefinite duration".

I am trying to give the court power to waive applications of the Bill in lesser, minor cases as well as in worst case scenarios as I think there should be flexibility as regards the courts discharging people from their obligations under the Bill. That sums up what I am trying to achieve in the amendments. One should not have to wait for the full ten years before applying because the ten year period would not apply to some more minor cases. The court should have the discretion to waive obligations in regard to more minor offences as well as the major ones.

Amendment No. 49 deals with a person whom the court decides should be subject to the requirements for a period of indefinite duration who applies to the court for an order discharging the person from the obligation to comply with these requirements on the grounds that the interests of the common good are no longer served by his or her continuing to be subject to them. The Bill as it stands stipulates that the application shall be made before the expiration of a period of ten years from release from prison.

Deputy O'Sullivan is suggesting that, under the circumstances today, the opportunity to apply to the court for an order of discharge should not be available at any time, in which there is merit. If the prison term is in excess of two years, the offence is serious and the damage done to the person is enormous. Even if there is the slightest chance of reoffending, the person should remain on the register. There will be situations where there is no danger of reoffending. Perhaps in circumstances where the sexual abuse was perpetrated on a family member, power over the child was the main motive, the family member has now grown up and moved out of the home and the person is no longer a danger to the children outside the home, that person could be safely removed from the register. In such circumstances, the Minister proposes that an application to discharge the person from obligation to comply with the requirements should not be made before a period of ten years. This should be tightened up and a period of 15 years rather than ten years should apply.

Deputy O'Sullivan's amendments seek to extend the provisions of section 10 to all persons who are required to notify the gardaí of their names and addresses and not just those with a lifetime requirement. Deputy Neville, on the other hand, wishes to extend the time in which an application under section 10 for discharge from the notification obligation can be made to the court from ten to 15 years.

Section 10 allows a person on whom a lifetime notification requirement has been imposed to apply to the court more than ten years after his or her release from prison to be discharged from that requirement. I explained to Deputies on Committee Stage that this section did not form part of my original proposals. However, on legal advice, based on the notion of proportionality, I included this section. I do not envisage it being used very often. Any person who applies runs the risk of being refused and that would in my opinion be worse than continuing to comply with the not very onerous notification obligations.

Like many other time limits in the Bill there is, of course, a degree of arbitrariness about the ten years in that it could have been nine or 11 years. However, in this case we had to take cognisance of the advice received on proportionality. I am happy both in that context and from the point of view of fairness that ten years is as near to being correct as makes no difference. The only reason for section 10 is to offer the possibility of discharge from the obligation to notify to those sex offenders whose offences and sentence have attracted a lifetime notification requirement. It has no other purpose and if the legislation did not provide for a lifetime notification requirement in certain circumstances the section would not have been included.

I have explained the background to the amendment which makes it clear that I would not be prepared to agree to any dilution of its provisions. In the normal course of events, no person can say that a sex offender will or will not reoffend. I do not wish to see sex offenders with five or seven year notification requirements applying to the court with reports prepared by experts saying that the likelihood of reoffending has reduced from, say, 40% to 30% or some other such figure. It would be unlikely in the extreme that a report would say the person will not reoffend. This would dilute the effectiveness of the register to the point where it would be absolutely useless.

I admit section 10 appears to contradict one of the features of the Bill which is to exclude from the court the decision on whether an offender should be obliged to register and, if so, for how long. I accept that some possibility of discharge from the notification requirement, where that is a lifetime requirement, is necessary. I am happy that the length of the prison sentence, plus ten years, is long enough before the possibility of discharge can even arise. There is a balance to be struck in any provision such as this and, in the context of the legal advice available to me and the policy considerations involved, I am satisfied we have struck the correct balance. None of the arguments to change section 10 is sufficiently compelling for me to be able to accept it. Therefore, I regret I am unable to accept the amendments.

It would seem logical that if a person whose requirement to register is for a period of indefinite duration can go to the court to have a discharge from the obligation for the full length of time, a person whose offence is lesser and, therefore, has a lesser time on the register, should have the same facility to apply for an earlier discharge. It does not seem logical that the worst offenders have the possibility of a reprieve while lesser offenders do not. That is the reason for the proposal. I would like an opportunity to further tease out this issue. I respect the fact that the Minister is allowing the person an opportunity to go to the court but the facility should be available to lesser offenders as well as to worst offenders.

The Minister is correct; there is a certain level of discretion. I believe ten years is too short and that a 15 year period would be more appropriate. However, the issue is arbitrary and discretionary. I agree to some extent with Deputy O'Sullivan that people should not be taken off the register. Given the situation I outlined, I feel ten years would be an appropriate period in circumstances where people are no threat whatsoever to society and are not likely to reoffend. However, I am not hung up on the issue because the timescale is discretionary. If the Minister insists on a ten year period, I will not oppose the Bill. However, I believe a 15 year period would be more appropriate.

Amendment, by leave, withdrawn.

I move amendment No. 47:

In page 11, line 23, after "requirements" to insert "or any one or more of them".

The Minister is proposing that the court can either waive the whole Part of the Act or not at all. I am proposing that the court could apply some provisions in the Act while waiving other provisions of it.

I explained on Committee Stage that Part 2 of the Bill imposes a requirement on certain sex offenders to notify the gardaí of their names and addresses and any changes to those details within specified periods of the changes occurring. The purpose of section 10 is to allow offenders with a lifetime notification obligation to apply to the court after ten years have elapsed since release from prison for a discharge from that obligation. A person notifying the Garda Síochána under Part 2 of the Bill is to state date of birth, name and address. The name and address of the offender are essential details and a notification which did not include these details could not be regarded as valid. The date of birth is also crucial from the point of view of risk assessment and also for identification purposes.

It is difficult to envisage why any offender would wish to apply to the court for relief complying with one or more but not all of the requirements provided in the amendment. To be more precise, ten years after release from prison would an offender think it worthwhile to apply to the court to be relieved of the obligation to notify his or her name but not the address or vice versa? I do not propose to accept the amendment. The small number of requirements when notifying the gardaí and the lack of any practical benefit to applicants for relief from having to comply with some but not all the requirements are the reasons I cannot accept the amendment.

Amendment, by leave, withdrawn.
Amendments Nos. 48 and 49 not moved.

I move amendment No. 50:

In page 13, to delete lines 9 to 11, and substitute the following:

"of this Act) under the law of the State, and either–

(i)the person would, accordingly, be subject to the requirements of this Part by reason of subsection (1) or (2) of section 7, or

(ii)at the commencement of this Part, the person, as a person who has been convicted of the first-mentioned offence in paragraph (a), is required, under the law of the first-mentioned place in that paragraph (however that requirement is described in that law), to notify to the police in that place information of a similar nature to that required to be notified by a person otherwise subject to the requirements of this Part,

and"

Amendment agreed to.

I move amendment No. 51:

In page 13, line 19, to delete "10" and substitute "7".

Amendment agreed to.
Amendment Nos. 52 and 53 not moved.

I move amendment No. 54:

In page 14, to delete lines 9 and 10 and substitute the following:

"(6) In this section–

‘police' means, in relation to the first-mentioned place in subsection (1),any police force in that place, or a member thereof, whether that force is organised at a national, regional or local level;

‘qualifying period' has the same meaning as it has in section 9.”.

Amendment agreed to.

I move amendment No. 55:

In page 15, line 22, after "Superintendent," to insert "on notice to the respondent,".

The respondent should be informed of what is being proposed. It would be totally inappropriate that orders like this would be made without informing and hearing from the respondent.

This amendment from Deputy O'Sullivan would oblige the Garda chief superintendent to inform the respondent when applying to the court for a sex offender order. I said on Committee Stage that this amendment seemed reasonable and that I would discuss it with the Chief Parliamentary Counsel. I am informed that what the amendment seeks to achieve is something that would be done in the normal course anyway and the effect of the amendment would be to give this practice a statutory footing for the purpose of the Bill. We have reservations about making statutory provision in this Bill for what is normal administrative practice. Such provision does not appear in broadly similar legislation and, if provided here, might have implications for how other legislation was interpreted.

In those circumstances, I regret that I am not in a position to accept this amendment.

It seems to me that it is appropriate that such a provision should be in legislation. It should be quite clear that a respondent would be informed and I am surprised to hear that this is not normal procedure in legislation. If the respondent is not informed, it is not much comfort to that person to hear that it is normally done. If it is not in the legislation, it is quite poss ible that the respondent might not be informed. In such a serious issue as sex offenders orders, it is essential to make sure that there is no way the person concerned would not be informed of what is being proposed.

As the Minister said, he initially thought, during the Committee Stage debate, that he might be able to comply with what my amendment was intended to achieve. I am not familiar with all of the different Bills where this type of provision is not included. However, I am surprised that it is not standard practice to put it into legislation, particularly in something as serious as this, where non-compliance would be a very serious offence.

This was discussed with the Attorney General who will not agree to the amendment suggested by Deputy O'Sullivan, which does seem reasonable at first sight. There is no way the respondent could not be advised that an order was being sought. It is simply that this is now an administrative practice and the difficulty is that, if it goes into this legislation, a precedent will thereby be created for other legislation. It has not previously been included in legislation and is described as being undesirable.

Amendment put and declared lost.

I move amendment No. 56:

In page 16, line 18, to delete "longer" and substitute "other".

The legislation, as it stands, states that a sex offenders order shall continue in force until the expiration of (a) five years from the date of notification of its making being given to the respondent, or (b) such longer period as the court may provide for in the order. My proposal to change "longer" to "other" would give the court an opportunity to specify a shorter period of time if it so wishes. This would give more discretion to the court. Since the court can allow a longer period, there may well be a situation where the court might consider it more appropriate to give a shorter period than five years. My intention is to allow the court more flexibility in making these orders.

Subsection (6) provides that a sex offender order shall have effect for a minimum period of five years or such longer period as the court may provide for. This minimum period is the same as the minimum notification period provided for in section 8. The amendment proposed by Deputy O'Sullivan would allow the court to make a sex offender order for a shorter period than five years.

I have explained previously that there is a very real connection between section 15 and section 8. One of the purposes of section 15 is to ensure that potentially dangerous sex offenders, whose names are not on the register by reason of having finished their sentences and lost contact with the criminal justice system at the commencement of this legislation, will have to notify the Garda of their names and addresses. In other words, these dangerous sex offenders, by reason of their behaviour in the community, will have to register for at least the minimum period that a current convicted sex offender will have to register. They will have had a conviction which, if current, would have attracted at least a five year notification obligation and they will be judged by the court to be at risk of inflicting serious harm to one or more members of the public. "Serious harm" is defined as death or serious personal injury. I do not think it unreasonable in those circumstances that the minimum periods for registration under sections 8 and 15 are the same.

Although not directly relevant to this amendment, the question was raised during the Committee Stage debate as to whether there was any way a person's name wrongly placed on the register could be removed. The circumstances under which a person could be wrongly required to register are few and unlikely in practice. Even where it did happen, such as where the offence was not one included in the schedule, the obligation to register would automatically cease and the person's name would no longer be on the register. It is clear from the legislation that the person concerned has to be convicted of a sexual offence, that is one listed in the schedule, and if it subsequently emerges in a particular case that the offence was not such an offence, then the registration procedure is for all intents and purposes null and void.

Possibly more likely would be a person successfully appealing a conviction. Such an appeal would place the person in the position he or she was in before the conviction and again the registration requirements would be nullified.

To make a case for this amendment, one would also have to make a case for a registration period under section 8 of less than the present minimum of five years. That case has not been made and accordingly I am unable to accept the amendment.

I thank the Minister for his explanation in relation to the other issue which was discussed on Committee Stage. I accept that the five year period is a minimum which, in almost all circumstances, one would want to see in the legislation. My intention was to give some flexibility to the court, but it is not a matter on which I feel strongly enough to take up the time of the House.

Amendment, by leave, withdrawn.

Amendments Nos. 57 and 58, in the name of Deputy O'Sullivan, are related and may be taken together by agreement.

I move amendment No. 57:

In page 20, lines 38 to 41, to delete all words from and including "for" in line 38 down to and including "not)" in line 41.

This relates to post-release supervision for sex offenders. My intention is to allow for post-release supervision in a case where there is no prison sentence. As the legislation stands, it allows for post-release supervision where Part 5 applies, that is where a person has been sentenced to a prison sentence. Post-release supervision is a very useful instrument in relation to this issue. It is a way in which people who have committed sex offences can be kept in contact with the services of the State and where we can have effective methods of controlling their behaviour and trying to anticipate any problems which may arise. The legislation as it stands only allows for post-release supervision where somebody has had a prison sentence. It should be allowed for someone who has not actually been sentenced to prison but who may have been found guilty of a minor offence in this regard.

I support Deputy O'Sullivan. This is a worthy amendment. These people, convicted of a minor offence, are either fined or get a suspended sentence. The court has actually found that they have sexually offended against the person and the provision of a type of supervision would ensure that they did not proceed to further more serious sexual crimes. Even if it prevented one sexual crime this amendment would be worth acceptance.

Part 5 of the Bill introduces a new scheme which will apply albeit where the court considers the appropriate sentence to be one of deprivation of liberty. Its purpose is to provide supervision in the community to sex offenders after their release from prison. It 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 behaviour and activities. It is clear from the wording in Part 5 that it cannot be used more generally or for other purposes as envisaged in the amendments. The intention of the amendments is that persons convicted of a sexual offence would become eligible for supervision whether or not they were imprisoned. Under the law at present the court can find any offender guilty of an offence and apply the probation Act which can include supervision by a probation and welfare officer. In addition the Circuit Court on convicting a person of a sex offence can also order that the person be supervised. Therefore, it seems that much of what the amendments seek to achieve is already in our laws rendering the amendments unnecessary. Technically, the amendments are unacceptable and contradict other provisions in Part 5. While that alone is not a reason to refuse to accept the policy the amendments seek to achieve, the fact is that the amendments are unacceptable and unnecessary for the reasons stated and I am unable to accept them.

I thank the Minister for his explanation. Will he clarify that a person who is not given a prison sentence can still be put under the supervision of the probation and welfare service by the court handing down the non-custodial sentence?

Yes it is open to the court to apply the probation Act in which event there can be supervision by a probation and welfare officer. In addition to that, the Circuit Court, when it is convicting a person of a sexual offence, can order that an individual be supervised. In my view there are existing provisions which fulfil the basic thrust of the objectives of Deputy O'Sullivan's amendment.

In that case I will not press this amendment.

Amendment, by leave, withdrawn.
Amendment No. 58 not moved.

I move amendment No. 59:

In page 23, between lines 19 and 20 to insert the following:

"33.–(1) Access to the Register shall be confined to the Garda Síochána. Information contained in the Register shall not be disclosed to any other person save with the permission of a designated High Court Judge, on the application of a member of An Garda Síochána, not below the rank of Inspector. Such an application, must be heard in camera, shall not be granted, unless in the opinion of the Judge, it is in the interest of public safety to do so.

(2) A Judge who grants an application made pursuant to this section shall specify, in his or her order, the extent to which disclosure is to be permitted.".

This amendment deals with the controversial and sensitive issue, access to the register and the control of that access. It has been a very contentious issue in other jurisdictions. It is an area which must be clearly addressed in the Bill to ensure that there is no ambiguity about releasing information or the names of people on the sex offenders register.

I believe there should be control over who releases the information and to whom it is released. Information should be available to those who need to know. It is important that there is a clear level of control on the release of such information. When the name of a person on the register is being released, either to an institution or an individual, the system must ensure that this does not result in vigilantism or violence against any person.

The amendment before the House proposes tight controls over the information and a system to make it available to those who need to know on the basis of a decision made by a body independent from An Garda Síochána. This is a simi lar approach to what happens in relation to telephone tapping by An Garda Síochána in its crime investigation role. I believe that the proposal before the House of a decision to release information on foot of a decision by a designated High Court judge will have the necessary checks and balances to ensure that the release of information will be under a fully understood system of consideration.

We must learn from the events and riots and killings which took place last year in the UK following a decision by the News of the World which published names and photographs of convicted paedophiles under its campaign called “naming and shaming”. In a publication in early August 2000 a notorious paedophile was named. He vanished shortly before a riot took place outside his flat. The News of the World printed his picture and said he was responsible for sexual offences against young boys. He disappeared from his flat a few miles north of Portsmouth city centre about 15 minutes before a demonstration went out of control. A policeman was hit in the face with a brick, cars were damaged and windows smashed. The flat was ransacked. No one knew his whereabouts. A police officer in Portsmouth said that it was what they had always feared with “naming and shaming” and that until the Thursday night they knew exactly where he was and what he was up to but now he had gone underground. We must ensure that a similar situation does not arise in this country where information misused will cause paedophiles to go underground and be a threat to children.

In July of last year in the greater Manchester area vigilantes confronted a man after mistaking him for a child abuser pictured in the News of the World. The police installed a panic button in his home following the confrontation. Officers were called later that night when a brick was thrown through the window of a neighbouring home at around 9 o'clock. The man was mistaken for a named paedophile who was pictured wearing a similar neck brace to him. The Assistant Chief Constable of the greater Manchester police blamed the incident on “an irresponsible reaction of emotive stories in a national newspaper” and Mr. Jack Straw, commenting on it, warned of the dangers of driving offenders underground.

There has been experience in the UK that when paedophiles are publicly identified some of them go to ground fearing vigilante attacks. They move elsewhere and change their names making it difficult or impossible for the police to keep track of them. There is a real danger that such actions as naming them will increase the risk to children rather than reduce it. In late August of last year vigilantes vandalised the home of a prominent children's doctor in Wales after apparently confusing her title of paediatrician with paedophile.

A specialist in paediatric medicine at Royal Gwent Hospital fled her home after her windows and front door were spray painted with the word "paedo". The paediatrician had to move into a friend's home and did not return to her rented house. She said it was just unbelievable and terrible that people could think they had the right to vandalise a person's property like that no matter what a person might have done. At that stage Britain had been obsessed with the subject of paedophiles following the death of an eight year old girl discovered in a field. Right across Britain, several people who share surnames with alleged offenders named by the News of the World have also had their homes attacked by vigilante gangs. In Portsmouth 70 miles west of London police had five innocent families forced to leave their homes after threats from neighbours. One man reportedly was suspected simply because he lived alone and talked about how much he loved his mother.

To ensure that there is not a risk to law and order and to ensure that children are protected by ensuring that paedophiles do not go underground it is important that there are clear distinct procedures for the release of information to those who need to know.

Again last year in the UK Julie Legge locked herself inside her home closely guarding her three children. She was too frightened to use the bus or go to local shops after 150 screaming vigilantes mistakenly identified her husband as a paedophile. She said she had been suffering from panic attacks ever since she returned with her family from a holiday in Spain to find their car reduced to a burnt out wreck, their windows smashed and home burgled. Lynch mobs in the area made innocent people's lives a nightmare. Nobody wants paedophiles around children but violence is the wrong way to go about it. We must ensure that such a situation does not happen in Ireland.

Understandably, because this issue stirs up strong emotions, the aspect raised by Deputy Neville, in which I support him, is crucial to this legislation. Who should have access to the register and how it should be used must be got right if it is to be effective. Deputy Neville gave a number of British cases where abuse of access to the register caused suffering and sex offenders to go underground away from police supervision. I share his view that it is important to ensure that control of the register does not result in attacks on people in their own homes, on people who are not sex offenders, or offenders going underground because they are identified as living in a particular area. This legislation must contain clear provisions on exactly who has and has not access to the register and how the information should be used. I support Deputy Neville's proposal. I am not sure how it should be done. He proposes it should be with the permission of a designated High Court Judge. However it is done, both ourselves as legislators and the public must be satisfied that it is appropriate, that the register achieves the end of safeguarding the public from offenders and that it is complied with.

As Deputy Neville explained at Select Committee, this amendment is about setting a basis through the courts for deciding who has access to the register. There are some technical points about which I am unhappy, for example, the word "register" does not appear in the Bill's text. I oppose it because it runs counter to the philosophy and policy of Part 2 of the Bill. Access to the register is not covered by it. Access cannot adequately or properly be dealt with in legislation but can be more appropriately dealt with administratively. The intention is that the information in the register will be used by the Garda in conjunction with the Probation and Welfare Service to assess risk.

Deputy Neville is rightly concerned at what he described on Committee Stage as the loose way information might be disclosed. He also alluded to the possibility of information being released in a way not intended. Those points deserve an answer. The notification system will be the basis of continuous risk assessment of convicted sex offenders by the Garda Síochána and the Probation and Welfare Service. No one else will, as of right, have access to that information. Any leak of information is deplored but I am confident that no leak will occur. In Deputy Neville's examples, none of the names concerned was released by the police. I am satisfied that it will be the same in this jurisdiction. Apart from any other consideration, there would be no point in doing so but should the worst happen, it would be irrelevant to how it should properly be disclosed, whether on a judge's instruction or a decision at inter-agency level by the Garda and the Probation and Welfare Service.

It is up to the Garda to draw up a protocol with that service as to what circumstances warrant disclosure in any particular case. As in the North of Ireland, it will only be disclosed when there is a serious and immediate danger to a person or persons, and even then only to the minimum number with an absolute need to know. The last thing we need is disorder, personal injury or witch hunts, as eloquently described by Deputy Neville, arising from disclosure. When the Garda conclude that another person or persons will be informed of an offender's name, it will be because they are sure there is an immediate, serious risk to someone. The risk and its immediacy are important. These will be determined using normal crime prevention techniques and the risk assessment arising from a person being obliged to register.

The problem with this amendment is that it transfers the decision from the persons who have been watching, assessing and possibly treating the offender on a continuing basis to the court which will be asked to make an immediate decision. Applications to the court take time. Reports must be prepared and the court might request experts' reports, which can often conflict. It is not a system designed for immediate action, and immediate means just that, not tomorrow, the next day or next week. It is not a court's function to be a rubber stamp, which it would have to be if it had to act as the Garda could where an immediate risk to a child, for example, became apparent.

Giving information from the register to the public carries huge risks and responsibilities, as we have seen across the water and as outlined by Deputy Neville. He also referred to this on Committee Stage. I know of no evidence that details of any of the persons whose names were published came from an official source. As I said, I envisage the power to disclose being used sparingly. The Garda will develop its own means of risk assessment, when, where and to whom any public access should be made. I imagine a first move will be to warn the offender about his or her behaviour and suggest a move to a place where children do not congregate, or seek a sex offender order.

There will be no public access to the register. I understand Deputies Neville's and O'Sullivan's concerns. Information may be disclosed in the exceptional circumstances to which I referred and then only on a strictly need to know basis. Good policing practice rather than court intervention is the most appropriate, efficient way to decide on when and to whom that information is given. I sympathise with the philosophy underlying the amendment as expressed by Deputy Neville and supported by Deputy O'Sullivan. I trust they will understand why I cannot accept it.

I have no problem with the Minister's approach to the Garda and how to handle the situation. That was not my point. I do not envisage court hearings. The amendment says permission of a designated court judge. It would be his decision, not on the basis of a court sitting but on the basis of being in the position of a third party evaluating independently if information should be released. I do not envisage, and it is a not the amendment's intention, that reports would be made available. A judge could be designated and accessed quickly allowing a decision to be made as quickly as is necessary. It would be a check and balance on the release of information. I do not object to continuous assessment of offenders by the Garda. That is the purpose of the Bill and this does not impact on that. Gardaí are human, and people have strong, different views on issues like this. Some feel strongly that sex offenders should not live in any community whatsoever. That is a serious situation. If a member of An Garda Síochána, with no wrongdoing in mind, who conscientiously felt that somebody who committed a sex offence, was convicted and was on a register should not be in any community in their area of responsibility. He might, in conscience, feel that way and decide to release the information to ensure what he believed to be the proper situation prevailed. There are people who feel like that and one can understand why they do but we have to deal with the situation in front of us.

If a member of the Garda Síochána of whatever rank or any other person with information decides it should be released, there should be one simple check where a third party would examine the situation very quickly and decide whether the information should be released. If that check was in place, 99.9% of requests for the release of the information would be granted because the person who initiated the request would know there were checks and balances in place and would ensure they complied with all reasonable conditions, investigations and examinations of the case. If such a check was in place, it would be very rare, if at all, for the designated person to refuse the request.

This is to cover a situation where somebody in authority conscientiously felt that sex offenders should not be in that community no matter what. I agree with the Minister when he says the register acts as a deterrent. One of the biggest strengths of the Bill, is that people on the register know the Garda know of their whereabouts, that the Garda are being vigilant in regard to their movements and that they are under scrutiny. In such circumstances, disclosure will only be made when a situation is quite serious. There should be some third party examination to guard against abuse of the release of information.

The Minister said this issue would be more appropriately dealt with administratively. Will he expand on that? Does he intend to designate what kind of administrative procedure should take place as in what rank of Garda, for example, might make these decisions or in regard to the level of information in terms of what a person has done? If Deputy Neville's amendment is not accepted, we need to know a little more about how these decisions will be made. For example, it is possible that a Garda serving in a station, who might not know the background information on why a person's name was on the register and the level of danger that person might pose to a community, might make a decision that the information should be disclosed to a community. Maybe if they had more direct involvement in this person's case, there might be information there which would lead them to make a different decision.

I am really expanding on the issues referred to by Deputy Neville. With the best of intentions, a garda might decide it is appropriate to disclose information to certain persons when that might do more harm than good both to the community and the people that garda would be seeking to protect. Before we make any decision on this amendment, we need to get more information from the Minister on how he envisages this will be dealt with, if not in the legislation, then by way of administrative decision.

I appreciate the concerns expressed by Deputy Neville and Deputy O'Sullivan. The position will be that the Garda Síochána will agree a protocol with the Probation and Welfare Service on the question of disclosure. Disclosure will take place on the basis of there being an immediate and serious risk to some person or persons. That is the basic criterion outlined in the legislation on the question of disclosure. As to who would make the disclosure and how it would be made, this is a matter which would have to be agreed by the Garda Síochána and the Probation and Welfare Service. I am confident they will be in a position to do this.

I outlined earlier that the police in Britain were not responsible for releasing the names of paedophiles to certain publications there. I remain absolutely confident a similar situation will prevail here and members of the Garda Síochána will not release names to newspapers and they will obey the fundamental criterion which is that there must be a serious and immediate risk to a person or persons. I do not know where the British publications obtained the names of the paedophiles in question but I understand there are organisations in Britain which record the names of people who are convicted of offences of this nature. It is quite possible that they got the names from some or other of these organisations.

The News of the World said it got them from the register.

I can safely say that from my perspective and from the investigations I have carried out the names Deputy Neville outlined today were not given out by the police. It is also possible that the newspapers could have got the information through another means, but this is the information that is available to me.

The release of the names will be carried out in a controlled manner on an agreed protocol. To transfer the decision on the disclosure of the name or names to the courts in a situation where we are speaking about the need for immediacy – in other words, we are speaking about an urgent need to disclose on the basis of there being an immediate and serious risk – would not be desirable. The reason is that the people who are watching, controlling, monitoring and assessing the risk would have the duty of disclosure transferred from them to a court which would not assess the situation on an ongoing basis in the manner I have outlined. There is no point saying the courts would not look for a report. The reality is that once an application is made by the very people who, incidentally, would seek to make the disclosure, reports would be sought. It would not be desirable, although I understand the concerns expressed by the Deputies.

The Minister is making a big play about the courts. I made the point that it would be a designated High Court judge. If he wants to designate somebody other than a High Court judge, he could have taken it on board on Com mittee Stage or in the Seanad. I want an independent person to examine the release of the information for the reasons I stated. I do not want to be repetitive. The Minister has latched on to this idea of the courts. I said a designated High Court judge but the Minister may want to designate somebody outside the courts who is in a position and has the training and capacity to objectively evaluate what is happening quickly. That was my intention. It is extremely loose to say in a very serious situation such as this where everything else has been tidied up, that this important area will be left to the Probation and Welfare Service and the Garda Síochána. It is the work of the Oireachtas to decide how this information should be released, because of its sensitivity and the need to ensure there is no risk to law and order, or to children as a result of sex offenders going underground and changing their names and their identities so that they are not under the vigilance of the Garda Síochána and can thus pose a danger to children.

The Minister has made great play of the area of the print media, which is fair enough. However, there is no reason to suppose it would not happen that a conscientious garda of any rank in a community in a divisional area might be of the firm view that a sex offender who has just registered should not be living in an estate of 500 houses and conscientiously release the information, without any evidence that the person was not complying fully with the law or was posing a threat to children. If we go down that road, people who have been released from prison having served sentences for sex offences and having paid their dues to society will not be able to live in any community. That is the logic of saying that a person should not live in a particular community. There are people who conscientiously believe that.

I want checks and balances. The Minister seems to be hung up on the courts because there is reference to a judge in the amendment. I meant a judge sitting in his chambers to examine a case and make a decision, as opposed to a court procedure with barristers, lawyers and so on. The Minister can change that to a judge in the Seanad if he is hung up on the courts.

I feel very strongly about this. It should be legally provided that we here should decide how the information is released, not two bodies of the State, the Garda Síochána and the probation and welfare officers, who might decide to handle such matters differently in different districts or to handle them on a national basis. If decisions are to be made on a national basis, we as legislators should make them. It is our duty to regularise this, and it would be negligent not to deal with this issue in the Bill.

Amendment put.

Allen, Bernard.Barnes, Monica.Bell, Michael.Belton, Louis J.Boylan, Andrew.Bradford, Paul.Broughan, Thomas P.Browne, John (Carlow-Kilkenny).Bruton, Richard.Burke, Ulick.Carey, Donal.Clune, Deirdre.Connaughton, Paul.Cosgrave, Michael.Coveney, Simon.Crawford, Seymour.Creed, Michael.Currie, Austin.Deasy, Austin.Dukes, Alan.Durkan, Bernard.Finucane, Michael.Fitzgerald, Frances.Flanagan, Charles.Gormley, John.Hayes, Brian.Healy, Seamus.Higgins, Jim.Higgins, Michael.Hogan, Philip.

Howlin, Brendan.Kenny, Enda.McCormack, Pádraic.McDowell, Derek.McGahon, Brendan.McGinley, Dinny.McGrath, Paul.McManus, Liz.Mitchell, Gay.Mitchell, Jim.Mitchell, Olivia.Moynihan-Cronin, Breeda.Naughten, Denis.Neville, Dan.O'Keeffe, Jim.O'Shea, Brian.O'Sullivan, Jan.Owen, Nora.Penrose, William.Quinn, Ruairí.Reynolds, Gerard.Ring, Michael.Ryan, Seán.Sargent, Trevor.Shatter, Alan.Shortall, Róisín.Spring, Dick.Stagg, Emmet.Stanton, David.Upton, Mary.

Níl

Ahern, Dermot.Ahern, Michael.Ahern, Noel.Andrews, David.Aylward, Liam.Blaney, Harry.Brady, Johnny.Brady, Martin.Brennan, Matt.Brennan, Séamus.Briscoe, Ben.Browne, John (Wexford).Byrne, Hugh.Callely, Ivor.Carey, Pat.Collins, Michael.Coughlan, Mary.Cowen, Brian.Cullen, Martin.Daly, Brendan.Davern, Noel.de Valera, Síle.Dennehy, John.Doherty, Seán.Ellis, John.Fahey, Frank.Fleming, Seán.Flood, Chris.Foley, Denis.Fox, Mildred.Gildea, Thomas.Hanafin, Mary.Haughey, Seán.Healy-Rae, Jackie.Keaveney, Cecilia.

Kelleher, Billy.Kenneally, Brendan.Killeen, Tony.Kirk, Séamus.Kitt, Michael P.Lenihan, Brian.Lenihan, Conor.McCreevy, Charlie.McGuinness, John J.Moffatt, Thomas.Molloy, Robert.Moloney, John.Moynihan, Donal.Moynihan, Michael.Ó Cuív, Éamon.O'Dea, Willie.O'Donnell, Liz.O'Donoghue, John.O'Flynn, Noel.O'Hanlon, Rory.O'Keeffe, Batt.O'Keeffe, Ned.O'Kennedy, Michael.O'Malley, Desmond.Power, Seán.Ryan, Eoin.Smith, Brendan.Smith, Michael.Treacy, Noel.Wade, Eddie.Wallace, Dan.Wallace, Mary.Walsh, Joe.Woods, Michael.Wright, G. V.

Tellers: Tá, Deputies Bradford and Stagg; Níl, Deputies S. Brennan and Power.
Amendment declared lost.

Amendment No. 61 is an alternative to No. 60 and they may be discussed together.

I move amendment No. 60:

In page 23, to delete lines 29 to 48 and substitute the following:

"(2) Notice of intention to make an application under section 3 or 4 shall be given to the prosecution by or on behalf of the accused person before, or as soon as practicable after, the commencement of the trial for the offence concerned or, as the case may be, the commencement of the proceeding concerned referred to in section 4(1).

(3) The prosecution shall, as soon as practicable after the receipt by it of such a notice, notify the complainant of his or her entitlement to be heard in relation to the said application and to the legally represented, for that purpose, during the course of the application.

(4) The judge shall not hear the said application without first being satisfied that subsections (2) and (3) have been complied with.

(5) If the period between the complainant's being notified, under subsection (3), of his or her entitlements under this section and the making of the said application is not, in the judge's opinion, such as to have afforded the complainant a reasonable opportunity to arrange legal representation of the kind referred to in this section, the judge shall postpone the hearing of the application (and, for this purpose, may adjourn the trial or proceeding concerned) for a period that the judge considers will afford the complainant such an opportunity.".

Amendment No. 61, in the name of Deputy O'Sullivan, proposes to delete and replace subsection (2) of section 33. In examining the amendment, some questions arose as to the meaning of parts of the existing subsection (2), for example, the requirement that the complainant in a sexual offence case be informed either by or on behalf of the accused is somewhat incongruous.

Amendment No. 60 in my name deletes subsections (2) and (3) of section 33 and replaces them with three new subsections. It provides that a judge must be satisfied that a defendant, or his/her legal representatives, notifies the prosecution before or as soon as practicable after the commencement of the trial of his intention to make an application under section 3 or 4 of the Criminal Law (Rape) Act, 1981, before considering such an application. As soon as practicable, the prosecution must notify the complainant of such an application and consequently of the complainant's right to be heard and legally represented during the hearing of the application.

Deputy O'Sullivan's amendment strays into the territory of administrative practice. Following a thorough examination of the issues involved, I am satisfied that such practice is unsuited to being placed on a statutory basis. Several measures have been introduced in recent years aimed at providing for and improving the position of the complainant in criminal trials. Procedures are now in place to allow the prosecution team to arrange pre-trial consultation with complainants in serious sexual assault cases. This helps to familiarise complainants with legal procedures and allows the prosecution team to explain the layout and procedures of the court and the matters that may be the subject of examination by counsel. Other measures have been set out in the discussion paper on the law regarding sexual offences, published in 1998.

It would be preferable to consider the point made by Deputy O'Sullivan in her amendment in the context of the analysis of views received in the relevant chapter of the discussion paper. It has little in common with section 33 of this Bill, the purpose of which is to provide for legal representation in certain circumstances. I commend amendment No. 60 to the House and I thank Deputy O'Sullivan for drawing my attention to the relevant provision. For the reasons I have stated, I am unable to accept her amendment but good certainly came of it.

I have no problem with the content of the Minister's amendment. In my amendment I sought to ensure the complainant is fully informed of his rights under the Criminal Law (Rape) Act, 1981. I welcome the fact that this section has been added to the Sex Offenders Bill. If the complainant's sexual history is brought before the court, she will have the right to legal representation. We have already spoken of this matter when discussing the main body of the Bill. It is undesirable for the defence team to be required to notify the complainant at the outset of proceedings of the requirement of this section. My amendment tried to shift the requirement to the prosecution and to require the prosecution to keep the complainant informed of the progress of the case.

We know that complainants in rape cases often feel seriously under-informed and under-supported in the court process. This plays no small part in the fact that many rape victims do not go to court. Two days ago, the Dublin Rape Crisis Centre produced a report which was discussed by the Minister and I on last night's Adjournment debate. The report said that one-fifth of those who go to the Rape Crisis Centre having been raped report the case to the Garda, which means that only a small percentage of those who say they have been raped go through with court proceedings. We have been told many times by those who represent victims, particularly the Rape Crisis Centre, that the court procedure is extremely difficult for victims. The complainant is treated as another witness of the State and is not given any particular priority in terms of being kept informed or as regards representation.

I welcome and acknowledge the important step forward that has been taken in this Bill and the fact that the complainant is now entitled to representation if sexual history is to be brought up in court. We need to do more, however, whether with this legislation or by separately amending the Criminal Law (Rape) Act, 1981. It is possible to go further, although I understand the balance of justice that is required between the defence and prosecuting sides. It would not be legally impossible to make it part of the role of a person on the State's team, a barrister or a solicitor, to keep complainants constantly informed of what is going on. The complainant needs to continually know what is happening regarding her case.

I consulted with those involved in this area before speaking here today. I was told that the stress encountered by complainants in court is a serious problem as they often feel they are almost incidental, just one of many witnesses in the case. In the context of these amendments, I ask the Minister to take the issue I have raised on board. Whatever measures can be taken must be taken to provide for this issue, preferably in this Bill although that may not be possible.

A representative of the Dublin Rape Crisis Centre said on the radio last night that it takes about two years for a rape case to come to court. It may take the DPP a year or more to decide whether there is a case to be heard and then another year may pass before the case reaches the court. The trauma of the court case is then faced by the complainant. In many cases, the person concerned is simply not strong enough to proceed with the necessary procedures. Anything the State can do to make it easier for victims to see the entire procedure through should be done. I appeal to the Minister to consider, in this Bill or otherwise, providing a more supportive situation in court for complainants in cases of rape.

I support what Deputy O'Sullivan said. The situation in court for rape victims has been a disgrace over the years. They have felt intimidated, have been unaware of what was happening and have often felt they were the accused persons. This section is a welcome development to improve that position. Any measure that can ease the difficulty for rape victims should be introduced. What creates most stress for rape victims, who have suffered a terrible crime and who continue to suffer because of the nature of it, is simply not knowing what is happening, when a court will sit or what statements will be made about them. Anything that can be done should be done to keep a complainant – who in 99.9% of cases is a woman – informed, to ensure her rights are fully protected and that she does not come under the scrutiny of clever lawyers who can manipulate a situation and intimidate a victim. This Bill eases that situation and I welcome that. What Deputy O'Sullivan proposes would further improve the position.

In so far as it relates to representation of victims of serious sexual offences, this legislation is ground-breaking because, for the first time in Irish criminal law, provision is being made for a person who is a complainant or victim to be represented during the course of a trial. The best advice available to me is that it would not be possible to provide legal representation throughout the trial because the accused would then be cross-examined not just by counsel for the prosecution but by counsel for the complainant. I am informed that this would not stand up.

I realise this is something that has been sought by many woman's groups and Rape Crisis Centres throughout the country over a long period. The legal position is that I have gone as far as I could go within legal parameters by providing that the complainant in a serious sexual offence case will be in a position to have legal representation where the defence seeks to adduce evidence of the complainant's previous sexual history. I am introducing, in our criminal law for the first time, the right of a complainant to be represented during the trial process. I accept this is during the period of a trial within a trial where the question as to the admissibility of that evidence is being considered. It is, however, a major step forward. It should give complainants, who are mostly woman, a far greater degree of comfort and of security in terms of making complaints and in terms of their cases being pursued through the courts. It is perfectly understandable how a woman would be frightened of a trial within a trial where she had no representation and where the defence was seeking to bring forward the most intimate details very often of the complainant's sexual history. The introduction of the representation we are bringing forward in this legislation is a major step forward. I stress this is the furthest I could go within the advice available to me, which took account of the legal parameters beyond which I could not stray.

I was not seeking to have someone cross-examine the defence in the general course of the trial but for someone to provide information and it need not be a barrister.

When we discussed the issue raised by Deputy Neville in the previous amendment on earlier Stages, the Minister talked about agreeing a protocol on the release of information on the register. His legal advice is telling him that he cannot provide for what I am seeking in this legislation.

Can he provide a protocol whereby the State in taking such cases would be directed to provide the type of support I am seeking that would not necessarily have to be included in this legislation? I am seeking to achieve this without going against the advice of the Attorney General, on whose advice I presume the Minister's reply is based. I ask the Minister to explore other ways in which it could be agreed that the State, as prosecutor, would provide this type of support.

The percentage of people, who have suffered these crimes, who bring a case through the court proceedings, is very small which is of very serious public concern. If more cases were taken and more prosecutions secured, that would be major a deterrent in such crimes. The offenders get away with it because it is difficult for their victims to go through the court process. If the Minister cannot provide for what I seek in this legislation, can he do so in some other way?

I understand what Deputy O'Sullivan is seeking to achieve. I was responding to the more general point in regard to the complainant participating in the trial process. The Deputy's proposal is a reasonable one and it is possible to provide for it in legislation. It is the administrative practice at the present time. The difficulty is it does not relate to the section in so far as it is currently presented. The chapter dealing with this issue in the sexual offences paper will be the subject matter of further legislation. It would be more appropriate to include the provision brought forward by the Deputy in that legislation rather than in this Bill, which deals with certain but not all segments of the discussion paper.

The discussion paper is the genesis for further legislation that will be brought forward to deal with sexual offences to ensure we will have a reformed and more modern basis of legislation where serious sexual offences in our community can be more expeditiously and effectively prosecuted.

Amendment agreed to.
Amendment No. 61 not moved.

I move amendment No. 62:

In page 24, to delete lines 29 to 33 and substitute the following:

"referred to in subsection (2) and which purports to contain either or both–

(i) particulars of the conviction in a state, other than the State, of that person for an offence and of the act constituting the offence,

(ii) a statement that, on a specified date, that person was subject to the first-mentioned requirement in section 12(1)(b)(ii),shall, without further proof, be evidence, until the contrary is shown, of the matters stated in it.”.

Amendment agreed to.
Bill reported with amendment and received for final consideration.
Question proposed: "That the Bill do now pass."

I thank the Minister for introducing the Bill. It is three years to the month since I introduced a Private Members' Bill. I hope this Bill will go through the Seanad as quickly as possible. This is an important Bill. It is not a panacea for dealing with sex offenders, as that is a much broader issue, but this is an important step in doing so.

I welcome that a sex offenders register will be set up. I hope that will be done before the summer recess. I hope the legislation to provide for it will come before the Seanad as soon as possible. As Opposition spokespersons, we have sought to amend the Bill to strengthen and improve it, but overall I think we are all satisfied that this is an important step in terms of protecting the broader community. I welcome the completion of proceedings on the Bill in this House.

I take this opportunity to thank all who participated in the discussion paper on sexual offences which I published in 1998. In this respect, I want to thank Mr. Paul Murray in particular.

This legislation is of immense importance. It is only the first in a series of measures which will flow from that discussion paper. In particular, I warmly thank the spokesperson for Fine Gael, Deputy Neville, and the spokesperson for the Labour Party, Deputy O'Sullivan, for the extremely constructive proposals which they brought before the House. They have made a substantial contribution to the legislation and have helped to improve it significantly.

Question put and agreed to.
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