I move: "That the Bill be now read a Second Time."
I am pleased to present this important legislation to the House, the primary purpose of which is to close an existing loophole in the law. Under the Offences Against the State (Amendment) Act 1998, it is an offence to withhold information in respect of a serious criminal offence. However, that provision of the 1998 Act specifically excludes sexual offences. I am therefore bringing forward this Bill in order to ensure there is an obligation on persons who have knowledge of all serious offences, including sexual offences against children or vulnerable adults, to inform the Garda of same.
Members of this House will be well aware of the content of published reports such as the Ryan report, the Murphy report and, more recently, the Cloyne report. These reports provide a litany of quite shocking revelations concerning the sexual abuse of children and failure to respond to that abuse. More recently, further revelations concerning Fr. Brendan Smyth have emerged. It is clear from these revelations and the various reports published that, if those who had knowledge in the past of sexual offences committed against children had informed the Garda Síochána, many children who subsequently became the victims of abuse may have been protected from clerical sexual predators. I believe there is, therefore, a compelling argument for closing the current loophole in the law.
As Members of this House will also be aware, the full scale of abuse of children which has taken place in the past is still not fully known and new information is continuing to emerge. The problem is also not confined to offences against children. There have also been a number of equally serious cases of vulnerable adults in institutional care being subject to serious sexual and physical abuse. In drafting the Bill, however, I must also be mindful of the fact that the balance of evidence suggests that the majority of abuse of children or vulnerable adults takes place in the person's own home. It is, therefore, important to reaffirm that we are not just concerned with issues of sexual abuse by persons in authority, be they in the Catholic Church or in any other religious group, or institutional settings. I must emphasise that this Bill applies to all persons, all organisations and all sectors of society. It is important that we produce legislation that affords protection from abuse to children or vulnerable persons, in any scenario or in any location. That is essentially what this Bill is about.
Members of this House have already been very supportive of the Bill when contributing to the consideration of the draft scheme of the Bill at hearings by the Oireachtas Joint Committee on Justice, Defence and Equality. The Bill before us today has been drafted to include provisions to take account of the issues raised by the joint committee in its deliberations. Under the provisions of this Bill, it will be an offence to fail to disclose to the Garda Síochána, without reasonable excuse, information concerning certain serious criminal offences where such offences are committed against a child or a vulnerable adult. These "serious offences" are listed in the Schedules to the Bill. These offences all carry a penalty of imprisonment of five years or more. They include most sexual offences and offences such as assault causing harm, causing serious harm, cruelty to a child, abduction of a child, manslaughter and murder. The Bill also establishes some limited defences for persons charged under it, such as a parent, guardian or medical professional who is acting in the interests of the health and well-being of the child or vulnerable person.
I would like to outline for the House the key provisions contained in the Bill. Section 1 is a standard interpretation section which defines the terms used in the Bill. Section 2 creates the offence of withholding information on serious offences against children. I wish to draw the attention of the House to a number of key provisions in this section. First, it is only an offence to withhold information where the person knows or believes that an offence has been committed, and the person has information which he or she knows or believes might be of material assistance in securing the apprehension, prosecution or conviction of the offender. This means that a person is not under any obligation to inform the Garda regarding any kind of vague rumours, innuendo or suspicions. He or she only commits an offence if he or she has substantive information regarding an offence and fails, without reasonable excuse, to disclose that information to the Garda. This reflects similar offences contained in other Acts, such as the Offences Against the State (Amendment) Act 1998. I also want to highlight the fact that section 2(2) provides that the Bill will only apply to information that a person receives, or becomes aware of, after the Bill becomes law.
Following consultation with the Attorney General, it was decided that it would not be feasible to make it an offence to withhold information where that information had been received before the Bill was enacted. There are potential legal concerns in regard to applying the provisions of the Bill to confidential information received prior to this law coming into force. There are also practical issues. I am mindful of the fact that most abuse happens within families, and in many cases the facts of the abuse would be known by siblings or other family members who were not themselves the perpetrators. Making the law retrospective and applicable to information received by a family member, or to a person who provided support to a victim many years ago, would in many instances be unjust. It would potentially criminalise individuals who had in good faith decided that it was not appropriate to report an offence to the Garda at the time they became aware of it, but who would not be able to show that their decision meets the revised standard now required in this Bill. The new law will, therefore, apply to non-disclosure of information received after the Bill is passed, although it may relate to something that happened before enactment. This ensures that in regard to future actions, behaviours and responsibilities there is certainty and clarity in the law.
Section 2 of the Bill also provides that the victim cannot themselves be guilty of any offence if he or she chooses not to disclose the offence against him or her. This exclusion was welcomed during the consideration of the Bill by the Oireachtas joint committee. Subsection (3) of this section confirms that the victim of any offence covered by the Bill cannot be guilty of the offence of withholding information where he or she does not report the offence to the Garda. Subsection (4) provides that the Bill is without prejudice to any right or privilege that is recognised in law. In that regard, this provision is simply to allow the courts to use their normal discretion in considering issues of privilege. There has been a lot of media comment suggesting that this Bill has an effect on the "seal of confession" or sacerdotal privilege, although there has been less agreement within that commentary as to what the exact impact or effect will be. One report suggested that the entire clergy of the Catholic Church are exempt from the requirements of the Bill. Another stated that the clergy is bound by the Bill, and that I am persecuting the church. Let me repeat my earlier comment: this Bill applies to all persons, to all organisations and to all sectors of society. No one is exempt from prosecution. A person charged may claim any defence that he or she so wishes but it will be a matter for a court to determine, in the circumstances of a particular case, the extent to which that defence does or does not exist.
It must also be borne in mind that existing provisions in the criminal law for the protection of children continue to apply. Current provisions in the criminal law have frequently been ignored in media reports on this Bill. These include section 176 of the Criminal Justice Act 2006, which makes it an offence for a person with authority or control over a child or abuser to intentionally or recklessly endanger a child by causing or permitting a child to be placed or left in a situation which creates a substantial risk to the child of being a victim of serious harm or sexual abuse. It is also an offence to fail to take reasonable steps to protect a child from such risk while knowing that a child is in such a situation.
On the subject of privilege, I point out that the issue of confession does not arise in regard to the many cases of criminal offences identified in the Ryan, Murphy or Cloyne reports. These reports all relate to complaints of abuse made to the church authorities by the victims or by family members or by members of the public. Nor, as far we know, is it an issue with regard to the reprehensible activities of the late Fr. Brendan Smyth and many of the other priests who have during the past two decades been convicted and sentenced in this State for child abuse. The provisions of this Bill will ensure that in the future those who have knowledge of similar crimes against children or vulnerable persons and who fail to disclose that information to the Garda Síochána can be prosecuted and convicted for that failure.
Section 3 creates the offence of withholding information on certain offences against vulnerable adults. It has the same structure and provisions as apply in section 2 in regard to withholding information concerning offences against children.
Section 4 provides for a range of defences for persons who are acting in the interests of the health and welfare of the victim. It is important to note that nothing in the Bill will impede any victim, or any other person, at any time from going to the Garda to report an offence. The defences in the Bill solely relate to circumstances where the victim chooses not to do this, or does not have the capacity to do this. As I have already mentioned, subsection (3) of sections 2 and 3 provides that the victim of any offence covered by the Bill cannot be guilty of the offence of withholding information where they do not report the offence to the Garda. It follows from this provision that a person who does not report an offence, at the request of the victim, also has a legitimate defence. This is set out in section 4(1).
In submissions to the Oireachtas Joint Committee on Justice, Defence and Equality, reference was also made to the difficulty which arises where the victim does not have the capacity either to report the offence or to make a decision as to whether they want another person to report it on their behalf. Many victims of abuse do not have the capacity to report offences against them either owing to their age or some other vulnerability. Such victims should be able to rely on another person to act on their behalf. The Bill provides that where the victim does not have the capacity to form a view as to whether the commission of the offence should be disclosed to the Garda, and the offender is not a family member, then the parent or guardian can make known, on behalf of the victim, that the victim does not want the offence to be so reported. An important safeguard in this circumstance is that the parent or guardian concerned must have reasonable grounds for acting on behalf of the child or vulnerable adult and must show that in doing so, they are acting in the best interests of the child or vulnerable adult.
They must also show that they had regard to the wishes of the child.
Members will also note that there is a presumption in section 4(2) of the Bill that a child under 14 years of age does not have the capacity to decide whether to report an offence and might wonder why this age has been chosen. It is important to state that a child of any age can, if he or she wishes, choose to report an offence. Nothing in the Bill prevents this. The reference to the age of 14 in the Bill is to allow the parent or guardian to act on behalf of the child, where the child is below that age limit. The age of under 14 has been chosen because a child of 14 years or over is, under the provisions of the Criminal Evidence Act 1992 considered legally competent to give evidence on oath or affirmation. Having considered the options, the Government agreed that under 14 years is the most appropriate age. The law would be inconsistent if it allowed a person of 14 years or over to give evidence under oath but did not recognise him as her as having the capacity to determine whether information in relation to an offence against him or her should be disclosed.
The Bill must give separate consideration as to what provisions are appropriate if the victim does not have the capacity to report the offence and the offender is a family member. In these circumstances, it is considered that it is not appropriate for the parent or guardian to act on behalf of the child because of the potential conflict of loyalties within the family. The Bill, therefore, provides in section 4(8) that in these circumstances a designated professional, who is providing services to the child or vulnerable person in respect of the harm or injury caused by the offence, may make it known that in his or her view the information relating to that offence should not be disclosed, provided that he or she can show that he or she is acting for the purpose of protecting the health and welfare of the child.
The Bill provides that designated professionals are doctors, nurses, psychologists and social workers. In making these provisions, I am trying to ensure that the Bill will not discourage a victim from seeking appropriate treatment at a time when required and when he or she is too traumatised by what has happened to go through the additional trauma of making a report to the Gardaí. In cases where the victim is very severely traumatised, a medical professional, who is treating him or her, should be able to decide that it is not in the interests of the victim's health and welfare to report the offence at that time. It is important to note that the medical professional will under the Children First Guidelines which are to be placed on a statutory footing by the Children First Bill, still be under an obligation to notify the HSE of any abuse of a child. The draft scheme of the Children First Bill has been published by my colleague, the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, and is currently under consideration by the Joint Oireachtas Committee on Health and Children. This separate obligation to notify the HSE, contained in the Children First Bill, is important to ensure that even where an offence is not reported to the Gardaí under this Bill, the victim is given the appropriate supports, treatment, monitoring and protection. I anticipate that the number of cases where it is appropriate for a medical professional to decide on behalf of the victim that a report should not be made to the Gardaí will be limited in number. In cases where the victim is very severely affected by the offence, this provision will be vital in order to provide the most appropriate protection for the health and well-being of the victim.
This Bill also provides in subsections (12) and (13) for persons providing counselling services to have similar defences to those available to a medical professional who is treating the victims. Under the Bill, these are referred to as "prescribed persons" who are employed or otherwise engaged by "prescribed organisations". A number of organisations, which provide counselling and support services to victims of sexual abuse, made the point in submissions to the Oireachtas committee that they often have to work with victims over an extended period of time before the victim can reach a decision on whether to report an offence to the Gardaí. I am anxious to ensure that victims are not discouraged from accessing supports which they need because of concerns that the seeking of such supports will immediately require a reporting of the crime to the Gardaí for the purposes of a criminal investigation or subsequent prosecution. As with all of the defences in the Bill, the priority is the protection of the health and welfare of the victim.
Sections 5 and 6 set out the manner in which an organisation may seek to be prescribed for the purpose of the Bill. It will also be the responsibility of such organisations to apply for persons within that organisation to be prescribed for the purpose of defence under section 4. Applications under sections 5 and 6 must be accompanied by information concerning the type of services provided, the training, expertise and qualifications of the persons concerned, the procedures for ensuring compliance with this Act and the arrangements for assessing the quality of services.
Section 7 sets out the penalties for persons guilty of an offence under this Bill. It provides for penalties, which vary from a class A fine and up to 12 months in prison to a sentence of up to ten years in prison, depending on the seriousness of the offence against a child or vulnerable adult, regarding which information has been withheld. The ten year penalty would apply in the most serious cases, such as the withholding of information concerning the murder of a child.
Section 8 provides for the amendment of the Offences Against the State (Amendment) Act 1998 in order to ensure that there is no overlap or duplication between the provisions of that Act and this Bill. Section 9 was introduced by way of amendment in the Seanad and corrects a minor oversight in the Criminal Justice (Female Genital Mutilation) Act 2012. Sections 10, 11 and 12 are standard provisions concerning the making of orders, expenses and commencement.
Schedule 1of the Bill sets out in detail the offences against children which must be reported to the Gardaí.Schedule 2sets out in detail the offences against vulnerable persons which must also be reported to the Gardaí. The offences are being listed individually in order to provide complete clarity as regards to the type of offences that constitute "serious offences" which must be reported under the law. Members of the House will be aware that this Bill is one element of a suite of legislation, namely, the Children First Bill and National Vetting Bureau Bill, to protect children and vulnerable persons, to which the Government is committed. In particular, this Bill has been drafted to complement the operation of the Children First Bill.
It might be helpful to the House if I elaborate further on how the Bill is to harmonise with the proposed Children First Bill, the scheme of which is currently under consideration by the Joint Oireachtas Committee on Health and Children. The Government is bringing these two separate and distinct measures in recognition of the very separate and distinct roles of the Garda Síochána and the HSE with regard to the protection of children and vulnerable persons. The Garda Síochána is responsible for the investigation of criminal offences. The HSE is responsible for providing the necessary supports and monitoring for children at risk. This Bill focuses on the role of the Garda Síochána and requires those with information relating to a serious criminal offence to provide the Gardaí with that information so that they can investigate the alleged crime. The Children First Bill will address the role of the HSE. It requires that relevant persons in a position to assess children at risk of abuse must provide the HSE with the information necessary to monitor and provide supports to a child who may have been abused. Any criminal investigation will be conducted in a parallel investigation by the Garda.
The obligation under this Bill to disclose information is in addition to and, not in substitution for, any other reporting requirements. This recognises that the requirement to report information to the Garda Síochána and to the HSE are separate and distinct measures, which are necessary to protect children and vulnerable persons. I am pleased to inform the House that I will shortly publish the Bill to place the vetting of persons working with children and vulnerable adults on a statutory basis.
I thank Members of this House who have already provided support for this Bill in their contributions to the hearings by the Joint Oireachtas Committee on Justice, Defence and Equality on the draft heads of the Bill. I thank them also for their suggestions during those hearings on how the Bill as published could be improved. I am sure the debate on the Bill in this House will be informed and constructive. I look forward to that debate. I commend this Bill to the House.
