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Dáil Éireann debate -
Tuesday, 6 Mar 2007

Vol. 633 No. 1

Criminal Law (Sexual Offences) (Amendment) Bill 2007: Second Stage.

I move: "That the Bill be now read a Second Time."

The primary purpose of this short Bill is to remedy an error in the Criminal Law (Sexual Offences) Act 2006. The particular point with which we are dealing was brought to my attention last week by Deputy Rabbitte, for which I thank him. It was a drafting error for which I am politically accountable and regretful. While the error is not as significant as has been claimed in some quarters, I have decided to act quickly and decisively to ensure the legislation on the Statute Book is as the Oireachtas intended because the error is a material anomaly in our law.

What gave rise to the Bill was the fact that section 6 of the 1993 Act was not updated when some of the sexual offences for which it would be an offence to solicit or importune another person for the purpose of the commission of a sexual act were repealed. To understand the reason for the offence at section 6 in the 1993 Act one must examine section 7 which deals with soliciting or importuning for the purposes of prostitution. Before the 1993 Act, there had been no provision similar to section 6. When the 1993 Bill was being drafted, it was considered that some types of soliciting might not be caught by section 7 and that it was advisable to bridge a potential gap by protecting children and mentally impaired persons from being solicited for sex in circumstances that might not amount to prostitution. While the fact that section 6 was enacted is evidence of changing times and greater awareness of the dangers of child sexual abuse, it was still enacted as a summary offence that to some extent paralleled the section 7 provision which made it an offence to solicit or importune for the purposes of prostitution.

Around 2000 there was concern about the low penalty for soliciting for the purposes of prostitution where the person solicited was a child. It was always the case in Ireland that there was no distinction in law between soliciting a child or adult for prostitution. Where soliciting a child led to actual sexual abuse, the penalties were and still are severe. It was decided to amend section 6 in the Children Act by stating it did not matter whether the soliciting was for the purposes of prostitution. This meant that soliciting a child for the purposes of prostitution attracted the higher penalty set out in section 6. Advantage was taken to increase the fine to the maximum then allowed in the District Court and add the offence at section 2 of the 1935 Act to the offences comprehended by the section. Nonetheless, the offence remained a summary offence triable only in the District Court. Consequently, it could not be tried on indictment and all offences needed to be dealt with within six months of the date of commission.

While the original offence at section 6 was a summary offence for which there was no power of detention for questioning, we must recognise that with modern technology, new impersonal ways of soliciting children have emerged. I have decided to take the opportunity to provide for conviction on indictment with a maximum penalty of five years imprisonment. The offence will be an arrestable offence, which means the Garda will have the power to detain suspects for questioning.

I have also made a closer examination of the offences for which it will be an offence to solicit or importune another for the purposes of the commission of a sexual offence. Currently, under last year's Act, they are the most serious of offences of child sexual abuse such as sexual intercourse and buggery. It is also an offence to solicit or importune a mentally impaired person for the purposes of having sexual intercourse or to attempt to commit buggery. A person soliciting a child or mentally impaired person to commit a sexual act that does not fall into the most serious category but that is still objectively serious was not criminalised under section 6. Therefore, I have added sexual assault to the list of offences in that section. This is reflected in section 2 of the Bill. In this respect, the Bill differs from the Bill the Labour Party circulated helpfully on Friday. It has been necessary to split the section into two subsections. In the case of sexual assault, we are only concerned with protecting children, but we are protecting adults as well as children in the case of mentally impaired persons.

Section 3 mirrors section 6 of the 2006 Act. As the offence of soliciting or importuning in section 6 of the 1993 Act is not an offence included in the 2006 Act, it is necessary in this Bill to make separate provision for it. This will ensure provisions in the Criminal Law (Rape) Act 1981 concerning matters such as the exclusion of the public from the court, preliminary examination, restriction of evidence and anonymity will apply in cases where a person is tried for soliciting or importuning a child or mentally impaired person for the purposes of the commission of a sexual offence. It also provides for separate legal representation and legal aid in the circumstances provided in the insertion into the 1981 Act by the Sex Offenders Act 2001. As the offence was previously a minor offence, it was not seen as appropriate until now to make such provision. At subsection (4) provision is made for free legal advice for complainants in the prosecution of offences of soliciting and importuning under section 6 of the 1993 Act. This is done by way of amendment to the Civil Legal Aid Act 1995.

Section 4 provides for the amendment of certain enactments. It mirrors section 7 of the 2006 Act and is required for the same reason for which section 3 is required. Four Acts are being amended, the first of which is the Criminal Evidence Act 1992. The offence at section 6 of the 1993 Act is being included in the definition of "sexual offence" in the Criminal Evidence Act. This means that the provisions in the 1992 Act under which, for example, children can give evidence in court through a television link or an intermediary in trials for sexual or violent offences will apply where a person is charged under section 6 of the 1993 Act. This was not the case previously.

The second Act amended by the section is the Sexual Offences (Jurisdiction) Act 1996 which made it possible to charge in the State persons who were Irish citizens or persons ordinarily resident here alleged to have committed sexual offences against a child in another country. An offence must be an offence both in this country and the country in which it is alleged to have taken place. The offences are listed in the Schedule to the 1996 Act but do not include an offence under section 6 of the 1993 Act. The effect of this amendment is to add the offence to the Schedule.

The third Act being amended is the Bail Act 1997. As it is proposed to make the offence an indictable or serious offence, it is appropriate that it be comprehended by the Bail Act provisions under which it is more difficult to obtain bail.

The fourth Act being amended is the Sex Offenders Act 2001, to which I have made a brief reference. The Schedule to that Act contains a long list of offences, in respect of which conviction entails an obligation to sign the sex offenders register. The offence under section 6 of the 1993 Act is being added to the list. However, it has wider implications than simply being required to register. It will be possible for the Garda to apply to the court for a civil sex offenders order where a person has a conviction under section 6 of the 1993 Act, assuming all the conditions of Part 3 of the 2001 Act have been met. Part 4 of the 2001 Act places obligations on persons with a conviction for a sexual offence, including in future an offence under section 6 of the 1993 Act, when applying for work entailing unsupervised access to children. A judge will be able to impose post-release supervision in accordance with Part 5 of the 2001 Act on any person convicted of a section 6 offence.

Section 5 increases the penalties in section 3 of the 2006 Act for the offence of attempting to carnally know a person under 17 years of age. Without this amendment, the penalty for attempting to carnally know such a person would actually be less than the proposed penalty for soliciting or importuning, which would introduce a new and unnecessary anomaly into the penalty structure for sexual offences.

As Deputies are aware, making soliciting or importuning a child or mentally impaired person for the purposes of the commission of a sexual offence an indictable offence has far greater implications than simply increasing the penalty. It means that it is now included in the group of the more serious sexual offences and all that entails. The consequential amendments it has been necessary to make in the Bill are evidence of this. They are also evidence of the complex and convoluted nature of the way our criminal laws governing sexual offences have evolved during the years. They are a perfect example of the need for codification of our criminal law, a project that has been commenced with the establishment of the Criminal Law Codification Advisory Committee.

Whereas my officials and I overlooked this issue last year, it is also true to say an all-party committee examined the 2006 legislation. Even when the Director of Public Prosecutions appeared before the committee, no one saw the point raised by Deputy Rabbitte. It shows that when one scatters legislation across a number of statutes, it is possible to make such an error. Fine Gael Members had intended using their Private Members' time this evening to debate a Bill which would have introduced a sexual grooming offence. I decided to accept the Fine Gael Bill in principle. I thought it better not to waste time with two debates on the sexual abuse of children in which a certain amount of overlap would develop. Accordingly, I have decided to incorporate the substance of the Fine Gael Private Members' Bill into this Bill, and this I did in section 6. When I decided to do this I thought, optimistically, that I could simply lift the provisions in the Private Members' Bill and transfer them without amendment to this Bill — and, if necessary, tidy up minor drafting points when I produce my own proposals on sexual grooming in the context of the trafficking Bill now being prepared in the Attorney General's office. I took this view in the knowledge that much of the Private Members' Bill was based closely on the British legislation. However, on closer scrutiny I have been obliged to make a few changes to make the offence operable, and the Members opposite may be interested in the changes that are necessary.

The Private Members' Bill would have allowed for universal jurisdiction. In other words, persons with no connections to this country could be prosecuted here for committing an offence anywhere in the world. Such a provision, the Attorney General advises me, would fall foul of our Constitution. Before Ireland can exercise jurisdiction, there must be some connection, however slight, to this country. Therefore, for an offence of meeting a child, or travelling to meet a child, for the purpose of doing anything that would constitute a sexual offence, such activity would have to take place within the State or, if outside the State, the person would have to be an Irish citizen or ordinarily resident here. That is a standard provision, similar to rest of our sexual offences extraterritorial legislation as set out in the Sexual Offences (Jurisdiction) Act 1996.

To commit an offence under the Private Members' Bill a person would have to either meet the child or travel to meet the child. In other words, the person would have had to be intercepted before meeting the child. I agree with that as a proposition and am not criticising it. However, the wording in that Bill in section 3A(1)(b) which it was proposed to insert into the 1998 Act assumed that a meeting had, in fact, taken place. It refers to doing or intending to do anything which would constitute sexual exploitation, either during or after the meeting. I have tidied up that aspect somewhat.

One other substantive point I have tidied up is to insert the word "sexual" into the definition of "sexual exploitation" at paragraph (c). Otherwise, the offence of sexual exploitation could be deemed to be committed by a person who invited, induced or coerced a child to participate in any activity which is any type of offence under any enactment. I know that Fine Gael did not intend that. I have also made some minor drafting and presentational changes which there is no need for me to dwell on here.

I have read and heard some comments over the last few days to the effect that children have been left unprotected against the nefarious activities of sexual predators. Even leaving aside for a moment that section 6 of the 1993 Act is rarely, if ever, used to convict persons, there is no shortage of more serious offences which the Garda can use to charge persons. The Criminal Law Act 1997 restated the general law that any person who aids, abets, counsels or procures the commission of an indictable offence is liable to be indicted, tried and punished as a principal offender. The Sex Offenders Act, in its Schedule, makes it an offence to aid, abet, counsel, procure or incite the commission of an offence. The Schedule contains a comprehensive list of sexual offences against children including those created in the Criminal Law (Sexual Offences) Act 2006, which we passed into law last year.

In addition, the definition of "child pornography" in the Child Trafficking and Pornography Act 1998 includes any visual representation or description of, or information relating to, a child that indicates or implies that the child is available to be used for the purpose of sexual exploitation irrespective of how or through what medium the representation, description or information has been produced, transmitted or conveyed. This provision was included specifically to criminalise paedophile networks passing information to one another over the Internet, although it has much wider application about the availability of a child to be sexually abused. Transmitting that information would be deemed to be distributing child pornography and carries a maximum prison sentence of 14 years.

The 1998 Act also made it an offence to take, detain or restrict the personal liberty of a child for the purpose of his or her sexual exploitation, to use the child for such a purpose, to organise or, more particularly, knowingly facilitate such taking, detaining, restricting or use. This offence also carries a maximum prison sentence of 14 years.

As regards matters that arose at Leaders' Questions or on the Order of Business today, I have discussed with the Attorney General the point again raised, I believe, by Deputy Rabbitte — I was not in the House when it happened. There is no need in offences relating to children to constantly recite that an honest mistake is a defence in relation to legislation that this House is now passing. If one goes back to the CC case, it decided that one section of the 1935 Act was, because of its legislative history, only capable of being interpreted as excluding that defence, and therefore that it was inconsistent with the Constitution. Another section of that Act, which dealt with indecent assault, because it did not have that particular legislative history and although it was silent on that issue, was held by the Supreme Court to be compatible with the Constitution. Legislation enacted post the Constitution is always to be construed as a primary canon of construction, as consistent with the Constitution. I am not commenting on whether it applies everywhere, but to the extent that the defence of honest mistake is necessary in any particular case regarding a post-1937 statute, every such statute is to be construed on the basis that it has a constitutional meaning and is not to be construed unconstitutionally. If an Act post-1937 is silent on the issue of honest mistake and if the Supreme Court or any court approaching it decides that it is constitutionally necessary to impute a mens rea honest mistake defence, the court is obliged, as a matter of constitutional construction, to accord it to that statute. That was my understanding of the matter. I spoke to the Attorney General this evening and it is his understanding of it too. Therefore it is not incumbent on this House to constantly stamp every offence relating to a child with an honest mistake defence. If we start doing it we then raise implications in other places where we had not done it, such as selling cigarettes to children and the like, indicating that somehow we were making a differentiation. All of that could lead to complexity which is not there. Another point is that if we change the Constitution to permit all of this, then we will be able to provide by simple statute that where, in relation to a whole series of offences it might have been the case that honest mistake was to be available as a defence, that it should not be so in the future.

I will recite all the provisions in the Statute Book that protect children against sexual abuse and severely punish abusers. It is enough for me to say that the Garda authorities have advised me that current criminal law contains a major series of offences punishable by very severe penalties for any person who, aids, abets, counsels or procures or attempts to commit a sexual offence against a child, who organises the use of a child for such purpose or who distributes such information about a child whether by Internet, phone, text message or otherwise. A comprehensive protection mechanism exists, but in all frankness, the simple request to a child was only criminalised by this summary offence. That was the significance of section 6. It was the only case where a simple request to a child, without any other act which would amount in law to an attempt, was criminal. As the House will know, the law of attempt is slightly complicated. There have to be preparatory acts and matters must go beyond a certain point. It was doubtful in my mind as to whether a simple request would, of itself, amount to an attempt. For that reason I believe it is important to make the law very clear.

To sum up, this is a short Bill and essentially two issues are involved. I do not want to play down the importance of rectifying the regrettable omission in the 2006 Act and neither do I want to exaggerate the importance of a provision which, may seem significant, but which has not been used to convict any person over the last few years and probably beyond that. Not to bring forward this Bill would leave a gap in the law. It has also proved an opportunity to introduce into Irish law to a limited extent the offence of meeting or travelling to meet a child following sexual grooming and to make an amendment to the Child Pornography Act, to add a protection for children.

The Fine Gael Private Members' Bill was very helpful legislation. However, even its drafters would concede, I believe, that there are probably more complex provisions — they are currently being worked on in the Office of the Attorney General — relating to the substance of grooming, in other words engaging with a child and trying to create a relationship of confidence with him or her with a view to sexually exploiting the child, which will require extremely careful drafting. I do not doubt that the Fine Gael official who drafted the Private Members' Bill did not want to go down that road. Totally innocent people could be criminalised if the balance is not 100% right. A great deal of thought and research is needed to ensure we do not create a monster when trying to chase people who are monsters.

The Government intends to revisit the grooming issue with a more comprehensive statute. Given that Fine Gael's Private Members' Bill came up with two measures which are undoubtedly an improvement on the present law, it would have been wrong of us to reject it or to fail to give it a speedy passage. We have accelerated its passage into law by adopting its provisions as part of the Government Bill, rather than simply accepting it. No party in this House has a monopoly on caring about protecting children from sexual assault.

That is true.

No parent or politician has a differential approach to this matter based on other party political beliefs or philosophies. As all Members of the House share a common desire to protect children from crime of this nature, I have approached this issue by accepting the spirit of the Labour Party Bill and most of the substance of the Fine Gael Bill and introducing additional material which I consider necessary to address this issue. In such circumstances, I ask the House to adopt this Bill and to give it a Second Reading.

I am happy to support the Government's attempt to close the gap in the law relating to the soliciting and importuning of children for sexual purposes. Our colleagues in the Labour Party did a service to the House and the country last week when they pointed out a loophole that inadvertently resulted from emergency legislation introduced last year. It is important that we close the gap as soon as we can.

I am pleased that the Minister, Deputy McDowell, has decided to adopt Fine Gael's proposals to outlaw Internet grooming. I accept the minor drafting changes he has suggested. While I am keen to see these measures enacted into law, we should think twice about the notion of dealing with such important issues by means of emergency legislation. I would not like it to become a regular practice. If these important issues are not dealt with in a studied and considered manner, it is possible — if not probable or inevitable — that there will be a recurrence of the unfortunate consequences of the 2006 emergency legislation. Emergency legislation is not the best way to deal with important issues such as child protection.

Fine Gael has expressed its support for the introduction of child protection measures. It has made it clear, at the all-party committee and elsewhere, that it supports the introduction of a zone of absolute protection, the need for which has been highlighted by its party leader, Deputy Kenny. It has resisted the Government's attempts to lower the age of consent. The referendum on child protection issues sought by Fine Gael seems to have been lost among the broader child welfare issues which have arisen. It seems almost certain that the referendum on child protection cannot take place during the term of the current Government.

It is important to approach all these issues in a measured fashion. With all due respect to the Minister for Justice, Equality and Law Reform, I am not sure his approach to these issues could be considered measured. When last year's problem arose, he claimed there was no black hole in the law on statutory rape. While he was uttering such platitudes on national radio, the High Court was getting ready to let child rapists walk free under the huge gap in the law that had opened in the absence of preparation or contingency plans on the part of the Government. While the Government floundered, the Opposition spoke of the need to close the black hole I have mentioned. Rather than concentrating on how best to do that, the Minister, Deputy McDowell, continued in denial until the last minute, when he decided that a change had to be made.

The most recent Fine Gael Bill on child protection, which contains measures for dealing with Internet grooming, has had a happier fate than my previous Bill on the same issue. The Government has accepted the legislation on this occasion, whereas the last time I presented a Bill on child protection, it was leaked to the newspapers. We should all work in a measured way to achieve the best outcome in the area of child protection. Nobody should claim to have a monopoly of care in this regard. All of us should be prepared to be judged on our records. A harsh judgment may be delivered on the Government and particularly the Minister, Deputy McDowell, based on their record.

Last week, Deputy Rabbitte highlighted the removal of certain provisions relating to the soliciting or importuning of children for sexual purposes. While the Minister can argue that many people looked at the Bill in question, he is responsible for ensuring that legislation is constitutionally and legally sound. He can avail of his experience in this area, the support of the Department of Justice, Equality and Law Reform and the advice of the many staff in the Office of the Attorney General. We are about to close this gap, which was allowed to develop even though such assistance was available.

When the Minister spoke about this gap, he made a highly insensitive reference to the soliciting or importuning of a child for sexual purpose as "a minor offence". I presume he was speaking in legal terms about the fact that the offence in question was a summary offence in the District Court. He should think of the children who have been subject to approaches from predatory adults and the parents whose children have been in such situations. Any suggestion that such a predatory approach could be referred to as "a minor offence" would be highly insensitive. I am glad we are taking the opportunity in this legislation to ensure that the offences which are being reinstated can be dealt with on indictment, with serious consequences in terms of the length of imprisonment to be served.

I would like to speak about the Internet grooming element of the Bill. I am quite familiar with this section of the Bill because I wrote it approximately three years ago. Insufficient attention has been paid to the problem of Internet grooming. The use of the Internet, which has infiltrated youth culture in particular, has not been dealt with in legislation. The obvious evidence of serious Internet grooming has been ignored. It is quite clear that Internet grooming has not been a criminal offence. I have always believed that predatory adults were using the Internet for the purpose of luring children into a false sense of security with their only objective being to arrange meetings with children for the purpose of sexual exploitation. While it is not known how widespread this practice is, the article in last Sunday's The Sunday Tribune brought the issue home. The author of the article, Mick McCaffrey, had been released after being arrested and was able to devote his talents to an investigative story. The information he gleaned and the responses to the approaches he made are quite appalling to anybody and opened an appalling vista of the kind of activity that is going on in our society. It brings home to us the absolute need to make this a serious criminal offence in order to try and stop these people engaging in such heinous activity.

The Minister referred to a precedent in UK legislation and I agree that one should not need to reinvent the wheel. I plead guilty to looking at the legislation and policies in other countries relating to all aspects of the criminal justice system. We have much to learn about policies on criminal justice and on legislation from tried and tested methods in other countries. The Fine Gael Bill drew largely on the UK legislation. Such legislation works in the United Kingdom and there is no reason such legislation should not work here. I do not suggest it is the complete answer as there are other aspects of Internet grooming which need to be dealt with but this is one clear and sure way of bringing to justice those who are involved in such activity.

I am pleased the Minister has taken the Fine Gael Bill on board. I had been told to expect a copy of the emergency legislation from the Minister yesterday and I made some inquiries. I did not receive any telephone calls and I did not see the draft legislation until this morning. The Minister might have considered sending a text to say he was working on it and that he was adopting our proposals. However, it is better late than never and the legislation is now before the House. We should deal with it in as sensible a way as possible.

When I saw that the Minister had taken the Fine Gael proposal on board and adopted it virtually line for line and word for word, I decided to withdraw the Private Member's Bill as I did not see any point in duplication. I also was aware that the Minister could not move his Bill tonight while my Bill was before the House. There is a precedent in this House that there cannot be a duplication of legislation. I discovered that the Minister would have required a special motion to move his Bill tonight because it would have been duplicitous of the Fine Gael Bill. This was another reason for clearing the Fine Gael Bill off the stocks since it was to be incorporated into the Government Bill and this would ensure that the provisions would be passed. I am well aware that legislation from the Opposition benches generally has very little chance of being passed and I was particularly keen to ensure that with regard to such an important area of child protection there was law on this matter.

It is important for the Government to clarify its position with regard to the clear decision on the referendum made by the all-party committee on child protection. The Fine Gael leader, Deputy Kenny, has made it clear that we want to see the legislation on child protection and the necessary referendum to underpin that legislation in place as soon as possible. I now have a real concern that because the welfare issues as enunciated by the Taoiseach were thrown into the mix the referendum on child protection will not be held in the near future. The Government appears to have made up its mind that it would not run the referendum on child protection on its own. For that reason, those of us in Opposition are forced to raise questions on the broader issues. The issues relating to child protection had been carefully examined but perhaps the safeguards to be put in place on the issue of soft information had not been sufficiently examined. In my letter to the Minister of State, Deputy Brian Lenihan, I stated the aspect that needed to be clarified was how this was to be dealt with in legislation.

The referendum was ready to run but it now seems that it will founder because of the add-on aspects regarding child welfare. We will end up with no referendum and no legislation on that issue in the short term, during the term of this Government. I am not happy with this outcome. I want to get to the heart of the issue to ensure the child protection measures, in so far as we can, are on the Statute Book and are constitutionally sound. This proposed legislation is a related matter in its aspect of child protection.

I am happy to support these measures. I am not happy that they are all being passed in one sitting. Neither the Minister nor the Government has given any clear explanation why there is not a pause in order to ensure the legislation is absolutely right. I had not seen the measures relating to importuning and soliciting until this morning. I had the opportunity to consider the other issues fully three years ago. I wish to put down a marker. I support the reinstatement and the extension of the offences relating to importuning and soliciting. However, Committee Stage of the Bill could be taken tomorrow or Thursday and people would have an opportunity of careful consideration. It is vitally important that whatever legislation is put in place now will stand up to the rigours of questioning before the courts. The Minister knows better than most and he has a lot more experience than I have of the Central Criminal Court. He knows the abilities of the lawyers who will test not just the Bill and its sections but every word and phrase in it.

I refer to an article by Fergus Finlay on this issue in today's Irish Examiner. He quoted the Minister on the Criminal Law (Sexual Offences) Act 2006 — the emergency legislation of last year — as stating: “When the dust settles and the frenzy is over it will be seen that my colleagues in Government, myself and the Attorney General, have acted competently, honestly, truthfully and with the best interests of the children in mind.” Yet, here we are back again with further emergency legislation. I wonder whether the Minister still feels that particular sentence stands up.

Having said all that, I am in favour of the Bill. Let us get on and deal with it as effectively as we can.

The offence we are seeking to re-enact this evening has had a curious legislative history that I had the opportunity to re-examine today. It seems, when one reads over the enactments, to have been characterised by some fundamental errors as to its purpose. It is, however, a serious offence — the offence of soliciting or importuning a child for sex. It is an offence which I do not believe is a minor one, and one which I believe every citizen would regard to be a serious matter.

When I say there were fundamental errors over time in its purpose, I do not expect to hold the current Minister for Justice, Equality and Law Reform responsible for the errors of his predecessors. However, he has a responsibility to account for the current state of affairs. To be fair, in his opening address, he very fairly accepted responsibility, although pointing to everybody else who could have shared it. However, the onus and responsibility lies with the Minister for Justice, Equality and Law Reform, who brings legislation before the House.

It is worth noting that the legislative history was characterised by four guillotined debates, of which tonight's is but the latest. As a result, the section in question was never adequately scrutinised or debated by this House. The offence dates back to 1993, when the then Minister, Mrs. Máire Geoghegan-Quinn, introduced the Criminal Justice (Sexual Offences) Act of that year. That Act was primarily concerned, in agreement with the Labour Party, with abolishing the offences which criminalised homosexual behaviour between consenting adults, but, consequentially, amendments were required to deal with prostitution and soliciting.

The then Minister, Mrs. Geoghegan-Quinn, speaking in the debate on 23 June 1993, stated:

I have . . . taken the opportunity in the Bill to revise and update the law in relation to prostitution and related offences. Section 6 creates a new offence of soliciting or importuning for purposes of the commission of a sexual offence. The offences comprehended by the section are those under section 3, 4 or 5 of this Bill and sections 1 or 2 of the Criminal Law (Amendment) Act 1935. This section will replace section 1(1) of the Vagrancy Act 1898, under which it was an offence for a male person in any public place to persistently solicit or importune for immoral purposes.

Section 6 will protect young persons and mentally impaired persons from being solicited or importuned for sexual purposes, whether heterosexual or homosexual, and whether the person soliciting or importuning is a male or female. It does not matter whether the soliciting or importuning takes place in a public place or not as the type of offence that could be committed could well be committed in a private residence. We are all aware that some child sexual abuse is committed by neighbours or friends of the parents of children who are abused and quite often the potential abuser will solicit or importune the child in his own home or even in the child's home.

It was clear from Mrs. Geoghegan-Quinn's speech that she believed section 6 had nothing to do with prostitution and that the offence was broader in its scope. Hence the reference she made to neighbours and friends. However, for such a serious offence, the penalties, as the Minister rightly stated, were minor and the offence was summary. It is not as if it was a minor offence like loitering. This was a mistake.

There was no clarity on the thinking behind the section because it was not reached due to the guillotine. In any event, the new offence was prosecuted. In one year, 2000, there were 55 prosecutions and 34 convictions — that year is as far back as the record can go. Some 40 of those prosecutions were in Dublin, with 15 in the south east, and, interestingly, there were no prosecutions in the other regions. Then, in 2001, an amendment to the 1993 Act was made by section 250 of the Children Act. This amendment repeated, more or less exactly, the words of the 1993 Act introduced by Mrs. Geoghegan-Quinn, but with the insertion of one new phrase, "(whether or not for the purposes of prostitution)". The offence would now read that "a person who solicits or importunes another person (whether or not for the purposes of prostitution) for the purposes of the commission of an act which would constitute an offence" is guilty of an offence. It seems the amendment was designed to make it crystal clear what was intended in 1993, namely, that the offence had nothing to do with prostitution and everything to do with protecting children against exploitation.

I read the explanatory note that accompanied the Children Act 2001 but, bizarrely, it stated the exact opposite. The explanatory noted stated: "Section 250 proposes a new offence which provides a higher penalty for soliciting or importuning a child for the purpose of prostitution". This is bizarre. In fact, the section did not create any new offence and merely restated the 1993 offence. Again, the section was not debated or referred to on any Second Stage or Committee Stage debate, and the debate itself was guillotined. If the Minister has access to the briefing notes prepared for that debate, he should explain to the House whether the draftsman was correct or whether the author of the explanatory memorandum was correct, and what was intended.

Whatever the reason for the confusion, the enactment of the amending legislation seems to have coincided with a dramatic reduction in prosecutions for the offence, a point on which the Minister has taken many opportunities in the past few days to present this as being a minor offence. I do not know why, but since the enactment of the Children Act 2001 this offence seems to have fallen away. Part 12 of the Children Act, which includes section 250, came into operation on 1 May 2002. The Garda annual reports show that from 55 prosecutions the previous year, there were just two prosecutions in 2001, none in 2002, two in 2003, none in 2004 and none in 2005, the last year for which we have published data. There is no explanation in the reports as to why there was a sudden fall off in prosecutions from more than 50 cases a year to virtually none. Why did this happen? It is hardly as if the practice ceased or the behaviour stopped.

As I have said, the main thrust of that amendment was to broaden the offence by making it clear that the soliciting and importuning did not have to be connected in any way. This was the intention in Ms Geoghegan Quinn's 1993 Act but the later amendment made the position crystal clear. In reality, however, that clarification or expansion never had the effect of leading to more prosecutions. In fact, since the 2001 Act, prosecutions under this offence have largely dried up, as the Minister pointed out. There may have been a change in either policing or prosecution policy following the 2001 amendment. If so, who made that policy decision and who had authority to issue a directive that an offence should not be prosecuted? Perhaps it is simply a matter of recording information differently but I would be interested to hear the view of the Minister as to what he regards as a serious enough offence to require the introduction of emergency legislation to reinstate, and why, having had a record of prosecution from its initial enactment in 1993, prosecutions should dry up in recent times.

We then had the third guillotined debate, which was on the emergency legislation introduced last year. When that legislation was brought to the House, there was an interesting debate, which I reread today. It is enlightening to reread it in the light of yet another emergency enactment to protect children being presented to the House. As I said during the debate last year, from the time the Supreme Court delivered its original judgment the Labour Party position was crystal clear, namely that temporary legislation should be introduced to close the loophole caused by the Supreme Court decision relating to the 1935 Act. Unfortunately, the Government rejected the Labour Party's careful, staged and reasonable proposition and the Minister for Justice, Equality and Law Reform introduced a single measure which went well beyond the requirement to close the loophole in the 1935 Act. I said at the time that the Minister was introducing a permanent measure without a sunset clause and if that approach was to be taken it must be with great care. In several fundamental areas the Bill he introduced fell far short of that standard.

The Minister said he had been thinking overnight on the subject and introduced amendments accordingly. That is no way to introduce fundamental law, particularly law that protects our children. We face emergency legislation yet again because we never had the time to properly scrutinise the measures involved. The Minister is correct to say we need a consolidation Act to reinstate in a joined up, clear way all the enactments to protect children against sexual deviancy and predation. It should be done as a matter of urgency and I am aware work is under way in the Minister's Department in that regard.

I will not rehearse the full debate because I do not have time but much of it bears repeating tonight. I said that rushed law was normally flawed, if not outright bad law. I said the Bill attempting to address the requirements of the constitutional decision of the Supreme Court was flawed and that the Minister was introducing fundamental laws into this House which he would later regret. We have reached a point of regret tonight.

I will deal with an issue raised earlier in the day by the leader of the Labour Party, Deputy Rabbitte, which was addressed in the Minister's opening remarks. I listened to his detailed legal response to a very important point but I have not had time to take advices on the matter or to make sure the Minister is right. We will not have time to reflect on it during the course of the debate in the House and that is not a good way to bring certainty to such matters. The leader of the Labour Party gave an account of what happened last year, when the Supreme Court judgment struck down as unconstitutional an offence under the 1935 legislation prohibiting unlawful carnal knowledge of a child. The offence, as the House will recall, was struck down because it concerned absolute liability and did not allow a defendant the defence of honest mistake. The fact that a defendant believed a child was over age was irrelevant to that offence. The Supreme Court held that, in the context of serious offences involving moral blame, there had to be a defence for a person in that situation. I will not repeat everything the leader of the Labour Party said but it is clearly on the record.

The Minister is a learned counsel and I am not. I ask him to correct me if I misheard but he said the 1935 Act was constitutionally flawed because it predated the Constitution and enactments subsequent to the passing of our Constitution were deemed to have constitutional effect. The honest mistake provision would be applied automatically to the courts and did not need to be recited directly in the legislation. Is that correct?

It is more or less correct, but the Deputy oversimplifies the matter.

I may oversimplify the matter but we need to get it clear before Committee Stage because we are expected to draft amendments to the Bill. I am advised that defences are put into Acts which create offences not just because they are required by the Constitution but so that we in this House, the elected Members of the Oireachtas, can define the substance of those defences, instead of leaving the courts to make determinations without our guidance. If the courts are obliged to read a defence of honest mistake into this Bill, as the Minister indicated to the House, on whom will the burden of proof lie? Will the prosecution have to prove beyond reasonable doubt that the defendant was aware that a child was under age or will it be for the defendant to prove on the balance of probability that he was not? If we legislate on the question we can specify what the rule should be. If we do not we leave it open to individual judges to make the determination.

In the absence of legislation putting the burden on the defendant, it is open to the courts to decide that the absence of honest mistake must be proved by the prosecution, rather than the reverse having to be proved by the defence. If the courts are required to rule on the issue rather than the Legislature, will the defence be one of honest mistake or one of honest and reasonable mistake, which we could determine? Will it be enough for a defendant to be honestly mistaken about a child's age or will he have to show that, in all the circumstances, it was reasonable to make that mistake? These are issues which will bedevil prosecutions under tonight's Bill if we do not take it upon ourselves to deal with the issue in the legislation. I would have liked more time to take better and longer advices on these matters, rather than having to respond to the Minister's speech on Second Stage without even having left the Chamber.

These are important issues which we must get right. I reject the Minister's claim, "Leaving aside for a moment that section 6 of the 1993 Act is rarely, if ever, used to convict persons, there is no shortage of more serious offences which the Garda can use to charge persons". Such offences do not exist for certain types of crime. For example, there is none for the man who hangs around outside a public lavatory or a school and approaches a child and importunes the child for sex. Unless a sexual act is committed, Internet-related and other law does not come into effect. We need this serious offence as a stand alone offence on our Statute Book. The Minister must agree with that or we would not be in the House tonight. It would be a catastrophe if, on the fourth attempt to deal with this matter, we made another mistake in a guillotined debate and the case was made in court that the burden of proof rested not with the defendant but with the prosecution.

We asked that the legal advices from the Attorney General be presented to us in advance of the debate but that did not happen. We have had to absorb the Attorney General's response to the Tánaiste, and that of his own legal expert advisers, but those two authorities were wrong last year. They were wrong on another serious matter, which I will not deal with on Second Stage but will on Committee Stage, namely the knocking down of the offence of abuse of a minor. That was one of the main offences used to prosecute offenders connected with the Ferns Report. God knows that, given my geographical location, I am familiar with those offences. Gross indecency against a minor under the age of 15 was, I believe inadvertently, knocked down last year. The Minister originally said that was not the case, then that it was and, more recently, that he had intended to knock it down because it was not gender neutral. However, we need that offence and hope to have time on Committee Stage to discuss it.

These are important issues and there is a responsibility on us to get it right. The public will not countenance another cock-up relating to the protection these Houses put in place for vulnerable and innocent children. I regret we will have inadequate time to tease out the issue satisfactorily. I greatly regret that we may be obliged to revisit these issues and engage in a more in-depth debate on them when further loopholes are identified.

Debate adjourned.