JOINT COMMITTEE ON CHILD PROTECTION debate -
Tuesday, 10 Oct 2006

Child Protection Issues: Presentation.

Chairman

I welcome members to this the fifth meeting of the Joint Committee on Child Protection. We have received apologies from Deputy James Breen, Deputy Curran and Senator Jim Walsh.

The first item on the agenda is a discussion with the Ombudsman for Children, Ms Emily Logan, whom I welcome. She is accompanied by Mr. Bernard McDonald, head of participation, and Ms Sophie Magennis, head of policy and research. As members will be aware the Office of the Ombudsman for Children was established under the Ombudsman for Children Act 2002. The main role of the ombudsman is to safeguard and promote the rights and interests of children and people under the age of 18.

The 2002 Act describes in detail what the work of the ombudsman entails, including promoting the rights of children under various headings including the UN Convention on the Rights of the Child, dealing with complaints about Government services relating to children under the age of 18 and conducting research and inquiries with universities and other agencies. In addition, under section 7(4) of the 2002 Act the ombudsman has a statutory mandate to offer advice to any Minister on matters relating to the rights and welfare of children. In this regard the Criminal Law (Sexual Offences) Bill 2006 was formally referred to the ombudsman by the Government on 1 June 2006. The ombudsman formally responded to the request for advice and members are referred to a copy of that advice which is item No. 6 in today's booklet, which has been circulated.

I invite Ms Logan to make a brief presentation to the committee on the areas within her remit in so far as they relate to our terms of reference.

Deputy Howlin

On a procedural point, I welcome Senator Feeney but are we expecting the Government today?

Chairman

We have just received apologies from the Tánaiste, which I did not include in the apologies list. We are expecting the imminent attendance of the Minister of State with responsibility for children.

Before we begin, I remind witnesses that while Members of the Oireachtas have parliamentary privilege at our proceedings, non-Members do not.

Ms Emily Logan

I thank the Chairman and members of the committee for the invitation to meet them today. I know the committee works to a tight timeframe and I appreciate the complexity of the issues through which it will work over the coming weeks. As such, I appreciate the opportunity for an open exchange of views with members today. I hope our discussions and the consideration of my written submission to the committee, as well as my advice to Government on the Criminal Law (Sexual Offences) Bill, 2006, will be of assistance to them in their important work.

The orders of reference of this committee are very widely drawn. I propose to focus on a number of key issues which specifically relate to the protection and status of children and which are centrally relevant to the mandate of my office. The Ombudsman for Children Act 2002 provides that I monitor and review generally the operation of legislation affecting children and provide advice on any matter relating to the rights and welfare of children, including the probable effect of legislation on children. I also have a role to encourage the development of policy, practice and procedure to promote the rights of children. I will frame my remarks today in the context of this mandate.

As the committee knows, my office is in direct contact with children and young people, families, and a range of professionals involved in work with children and has a mandate to highlight issues of concern to children. I understand the committee is assisted by legal advisers and has met experts in criminal law relating to the finer legal points, so I will not go over this ground again in detail, but will confine myself to pointing up a number of specific issues in the new Act.

Today, I will focus on the following matters of direct relevance to the committee's terms of reference: the legal status of children in Ireland; the protection of children involved in court proceedings under the 2006 Act; issues of concern with regard to the 2006 Act; and the age of consent.

The establishment of this committee presents a real opportunity to make progress with regard to the status of the child as an individual rights holder. Earlier this year there was disappointment at the recommendations of the All-Party Oireachtas Committee on the Constitution, which fell short of the recommendations of the Constitution Review Group in 1996. I was therefore heartened by the support for real constitutional change expressed by the Cabinet level members of this committee at its first meeting in July. Adding to this momentum was the commitment expressed by the Minister of State with responsibility for Children to progress the status of children as individual rights holders at the examination of Ireland's second report to the UN Committee on the Rights of the Child in Geneva recently. The Minister of State spoke about work on an audit of the Constitution, through the lens of the Convention on the Rights of the Child, and was positive about the possibilities for change.

The UN committee's concluding observations on Ireland's second report to the committee were published two weeks ago. In its observations, the UN committee expressed regret at the lack of progress relating to the status of the child as a rights holder and urged the State to make every effort to accelerate the implementation of the recommendations of the Constitution Review Group of 1996. I understand the Seanad will discuss the UN committee's observations tomorrow and hope this will mark the beginning of a process to follow up and implement the recommendations of the UN Committee.

The case for constitutional change is clear. The Constitution Review Group has called for it, the UN has called for it and the public reaction to the outcome of the CC case has indicated a strong desire to place the protection of children at the very heart of our legal system. It is my view, as set out in my submission to the All-Party Oireachtas Committee on the Constitution of January 2005, that a general express provision relating to children's rights should be inserted in the Constitution. This remains my view today.

The lack of constitutional recognition has had real consequences for children, as a quick review of some of the leading Supreme Court cases on this point clearly demonstrates. In the absence of an express provision for the rights of the child, the Judiciary is confined to acting within the provisions of a Constitution which affords a higher status to the family. A key consideration here is that children require special protection. This is why we have a UN Convention on the Rights of the Child, the terms of which Ireland has signed up to and with which it is under an obligation to comply. We need to achieve an appropriate balance between competing rights in our society. In doing so, we need to recognise that there is no level playing field between children and the adults who may seek to do them harm.

From the very top, that is from the Constitution down, there must be a recognition that children are individual rights holders and that their best interests must be considered a primary consideration in matters concerning them. This will then enable and encourage the Oireachtas, policy makers and practitioners to incorporate the principle of best interests, which is at the heart of the UN Convention on the Rights of the Child, into their work without fear of falling foul of the Constitution.

Turning to the protection of children involved in court proceedings under the Criminal Law (Sexual Offences) Act 2006, I consider that the inclusion of express rights in the Constitution would accommodate the introduction of special measures to protect children involved in court proceedings. Without this recognition, I fear that such special measures may be subject to challenge as to their constitutionality. In my written submission to the committee and in my advice on the Criminal Law (Sexual Offences) Bill 2006, I expressed concern that the Act left open the possibility that child witnesses may be required to attend trial and may be subject to cross-examination. Many, including members of the Government, share this concern.

My submission to the committee sets out a range of measures which should be introduced to protect child witnesses and prevent their appearance in court. These include the presentation of video evidence, limitations on cross-examination, the presence of intermediaries to support a child, clarity around the duty to protect children in the courtroom and the introduction of pre-trial measures and training. There are good examples of the introduction of such measures in other common law jurisdictions, as described in my written submission, and I encourage the committee to review international best practice in this field.

I will turn now to the concerns I have about the provisions of the 2006 Act. These concerns have already been set out in my advice to Government on the Bill and in my written submission to the committee.

I have three main concerns regarding the provisions of the Act: the potential criminalisation of young people in respect of consensual sexual behaviour; discrimination against boys; and the failure to incorporate the best interests principle into the Act. Under the current terms of the 2006 Act, young people can be prosecuted for engaging in consensual sexual activity under the age of consent. It is my view that, in principle, young people should not be criminalised in respect of consensual behaviour among themselves. The key element is consent. Where there is consent, criminal proceedings should not be brought. This entails that those professionals charged with determining whether there was consent be trained in working with children in such matters.

I do not consider that there are reasonable grounds for the provision which grants immunity to girls in respect of sexual intercourse and which thereby discriminates against boys. Tackling the stigmatisation which may attach to teenage pregnancies would be better achieved by the removal of the criminal law from the sphere of consensual sex between young people and by awareness raising measures.

In my advice on the Bill I recommended that the best interests of the child principle be incorporated into section 3 of the Act which concerns the discretion of the Director of Public Prosecutions to bring prosecutions against children between the ages of 15 and 17 years. I consider that children should not be prosecuted for engaging in consensual behaviour among themselves. However, in the event that a prosecution is brought against a young person, it should be at the consent of the Director of Public Prosecutions. I urge the committee to recommend that the discretion of the Director of Public Prosecutions be extended to children of all ages. I further consider that the Director of Public Prosecutions should exercise this discretion in accordance with the best interests principle enshrined in the UN Convention on the Rights of the Child and that the rationale for his decisions should be made public. I realise this would be a new departure but such a move by the Director of Public Prosecutions would very helpful in developing our understanding of the complex issues involved in such cases.

In summary, the enactment of the 2006 Act represented a missed opportunity indirectly to incorporate the key principles of the best interests of the child, non-discrimination and respect for the voice of the child, as set out in the UN Convention on the Rights of the Child. This may largely have been due to the fact that time was of the essence in the drafting and enactment of the Bill and that there was not sufficient time to give consideration to these matters. At the meeting of the UN Committee on the Rights of the Child in Geneva three weeks ago, the committee encouraged the State to avail of all opportunities indirectly to incorporate the convention through primary legislation. I hope this committee will now take the opportunity to consider the provisions of the 2006 Act in the light of the UN Convention on the Rights of the Child and make recommendations for change to bring the Act into compliance with the provisions of the convention.

Turning to the issue of the age of consent, an issue which I know the committee has kept under consideration for the last while, this is a matter on which we must consult children and young people. I welcome the decision of the Minister of State with responsibility for children to undertake consultation with children and young people on this issue but this is one which I would caution. Although this may be a challenging topic for participation work, there is now a wealth of information on best practice in relation to participation exercises, standards and guidelines on how to conduct quality participation work with children and young people. I also consider that consultation work on the issue should include other constituency groups close to children and which understand the difficulties they encounter in this context.

Stepping back from the confines of the 2006 Act and the immediate implications of the CC case, it is clear that together as a society we must do much more to prepare our children and young people for life in Ireland today. We must ensure relationships and sexuality education and awareness raising activities are delivered to all of our young people in order that they may avoid the health risks and other difficulties attached to early sexual activity. There are recognised gaps in the provision of such education within and outside the school setting. In recognition of this, the UN Committee on the Rights of the Child, in its concluding observations on Ireland, called for enhanced access to adolescent specific reproductive and sexual health information and services.

The work of the committee presents an opportunity to enhance the protection of children in Ireland by recommending change in the following areas: constitutional protection for all children; the protection of children involved in court proceedings; and a renewed focus on the need for education, awareness raising and participation exercises with children and young people.

My staff and I remain, as always, at the disposal of the committee should we be in a position to assist it in any further way in its continuing work. I hope there will be an opportunity to discuss the matters raised in my written submission.

Chairman

Leaving aside the presentation, Ms Logan made a very helpful and comprehensive written submission to the committee on 30 August which has been circulated to members. We appreciate her brevity. We have found that question and answer sessions usually help to develop and expand issues for members.

Is the UN Convention on the Rights of the Child explicit in its direction to this country to introduce constitutional protection for children or is the direction implicit?

Ms Logan

In the 1998 concluding observations it was explicitly stated. This was reiterated two weeks ago in the United Nation's most recent concluding observations. The question of constitutional protection was explicit.

Chairman

By signing the convention are we legally bound to introduce constitutional protection? I am unclear on this matter.

Ms Logan

The UN convention is not binding on the court but we ratified it in 1992. We are committed to it as a Government policy document.

Deputy J. O’Keeffe

I compliment the Ombudsman for Children on the very fine impact she has made since taking up office. The office has been a major addition to the landscape, particularly for those of us interested in the protection of children's rights. I also compliment her on adhering to the Chairman's ten minute rule.

Having been the first Chairman of the All-Party Committee on the Constitution, I am interested in constitutional change and focus on the ombudsman's references to it. Has she or any of her advisers come up with a wording for such a change to deal with the general express provision relating to children's rights? The wording of a constitutional provision is absolutely important, from the point of view of what can be agreed to.

How can the question of the protection of children in court proceedings be covered in the Constitution? Ms Logan referred to the inclusion of express rights in the Constitution to accommodate the introduction of special measures to protect children involved in court proceedings. On the face of it, this is a very attractive proposition but two issues arise. First, considering Article 38, which guarantees the right to a fair trial, how can one accommodate the right of the accused to a fair trial while giving special protection to children? Second, is it suggested there should be a differentiation depending on the age of the child? Should we recommend that a child of six years, when giving evidence, should be treated in the same way as a child of 16? While a strong case is made for a constitutional amendment, it is important to tease out exactly what is proposed and the possible adverse effects of such a proposal on the rights of others. This does not take from my admiration for the case being made by the ombudsman for the protection of children.

Ms Logan

I am not proposing a specific wording. Our office can offer what we have done in the past, that when a wording is put together, we will look at the probable implications. That is how the office has worked. I have talked to many people about this and there are many views on a wording. I do not think our office should propose one. I would be happy to work with people and look at the probable implications of a proposed wording but our office should not come up with one. That sounds unhelpful but I can be more helpful in answering the question on court proceedings.

Senator Feeney

I cannot blame the ombudsman for not wanting to draft the wording.

Ms Logan

We know our limitations. We do not have that expertise. The joint committee is best served through the channels of rapporteurs and legal counsel at its disposal.

In terms of court proceedings, we are keen to preserve the right of a defendant to a fair trial, while safeguarding the rights of children. We have looked at other common law jurisdictions and Scotland and Canada particularly would stand out as countries that seem to have had considerable success with court proceedings. They have actually managed to balance and preserve the right of a defendant to a fair trial, while safeguarding the rights of children. I would look to international best practice in that regard. We can very happily supply the committee with the information we have researched.

I do not think there should be a differentiating between ages. One should never underestimate the ability of children to give a view, but the difficulty is to articulate that view in a conventional adult forum. That is where most of the difficulty lies. Recently I spoke with High and Supreme Court judges at the Germanophone and Anglophone Conference, where we listened to the German group. In spite of the fact that Germany is a civil law jurisdiction, the German judges described talking and meeting with children as young as three years in eliciting their views on various issues in family law proceedings. It is possible to elicit the views of children at a young age, but it requires a very competent adult. We need to ensure we do not end up with a situation where we focus on the competence of the child to give the information instead of focusing on the competence of the adult to elicit it.

Deputy Howlin

I compliment the Ombudsman for Children. This important new office has done a large degree of good work already for which I commend the ombudsman.

In her submission to the all-party committee on the Constitution the Ombudsman asked that express rights be granted to children. That involves formulating a wording that is both comprehensive and meets the need that presents the challenge. While I understand the ombudsman is not offering a form of words, I am interested in exploring this issue. The UN Convention on the Rights of the Child is ratified but not expressed in Irish law. We often look to the Constitution rather than our responsibility as legislators to lay out in clear terms in legislation the rights of the child which we see as appropriate. Would the clear expression in law of the UN Convention on the Rights of the Child obviate the need for a constitutional amendment to express rights or does the ombudsman regard both as being required? Would a constitutional amendment, simply endorsing the UN convention, fit the bill?

I listened to the ombudsman's point on male-female differentiation. However, under section 5 of the Criminal Law (Sexual Offences) Act 2006, female children under 17 years are not guilty of an offence, whereas male children are. The Act comes into effect next Monday. It amends the Children Act which has not yet come into force. The age of criminal responsibility for rape or aggravated sexual assault is reduced to ten years for boys, although obviously prosecutions cannot arise under the age of 14, save by consent of the Director of Public Prosecutions. I would be interested in the ombudsman's view on that new situation and whether it accords with the view of the UN Committee on the Rights of the Child which has criticised other jurisdictions where the minimum age is 12 years or less. Does the ombudsman have a general view on the age of criminal responsibility?

On the age of consent, in her submission the ombudsman raised the need for consultation. The Minister of State has embarked upon such a process but what is the ombudsman's judgment call on the appropriate age of consent? Were the ages set previously correct, or is the age, incorporated in the 2006 Act of 17 years as a common age, correct? Has the ombudsman made a judgment call on it yet?

The issue of child witnesses has received a great deal of consideration by the committee. The facility for taking video evidence is very important. I will be raising the issue with the next set of representatives who will be able to comment on it. I understood video recording facilities for child witnesses were available in Dublin and three other locations, Cork, Longford and Nenagh. I understand, however, from a submission from the Garda Síochána that the commencement order in respect of section 16 of the Criminal Evidence Act 1992 has not been signed to date. I would be interested to learn the view of the ombudsman on the appropriateness of very young children being required to appear in court to give evidence in these matters before raising the issue with the Garda Síochána.

Ms Logan

In response to the question on introducing the UN convention at domestic level, a problem arises because of the duality of our system. If one introduces it in legislation, the Constitution will always supersede the legislation. I do not think it is enough to incorporate the convention in primary legislation. I would be looking for both. What is interesting is that the UN committee recommended not just an express constitutional change but also consideration for primary legislation to look at the best interests of children through the UNCRC lens. Therefore, it recommended a change in the law at both constitutional and domestic level.

On the criminal age of responsibility, I am not sure if I should recount to the committee the comment made that we should be very careful about raising the criminal age of responsibility to 12 years with those three caveats. We were cautioned about looking to other jurisdictions, particularly England which was described as the worst boy in the class. We were asked why we would seek to follow other jurisdictions that are giving poor direction on the issue. The recommendation was that if we were going to raise the age to 12, we should do so without caveats. It was suggested that in the case of murder, rape and aggravated sexual assault it did not make sense that one could cognitively comprehend at ten years more than one would at 12.

Deputy Howlin

Is that the ombudsman's view?

Ms Logan

That was the view expressed by the UN committee.

Deputy Howlin

I was aware of that.

Ms Logan

I would concur with it. I do not think it makes sense to insist that a child as young as ten years will be capable. We saw the Jamie Bulger case in the European Court of Human Rights and if one is to raise the age of criminal responsibility, it should be raised to 12 years without caveats.

The appropriate age of consent is another complicated issue and I would steer clear of any subjective opinion. We talk to the many children we meet. The current age is not realistic or reflective of changes in society.

Deputy Howlin

Is 17 years the age of consent?

Ms Logan

It is. How one comes to a decision if there is to be a new proposal needs to be considered in consultation with children and other groups. There are also groups of people who know a great deal about the issues with which children are dealing, including health care professionals, teachers and others who work very closely with children. Scotland is an especially useful jurisdiction to examine for best practice which in this context involves consultation with parents. For example, I was with a group in Cavan-Monaghan recently where I met groups of parents and teenagers. The parents expressed their feelings of apprehension and nervousness and suggested they would like some kind of support. The Scottish jurisdiction is quite striking in its mobilisation of support, especially in the context of the family. Many teenagers still talk about their families and of going home to ask about the kinds of questions under discussion here.

I preface my remarks on video evidence by stating my preference that children should not give evidence to the court. However, if children are to give their evidence to a court, they must be supported by very skilled people. I have a preference for video-taped evidence rather than for video-linking to live evidence by a child.

Senator Feeney

Unfortunately, I will have to leave. My colleagues are absent as this meeting clashes with one I must also attend. I will not be here for the second part of the session.

Deputy J. O’Keeffe

Is the crisis still on?

Senator Feeney

What crisis? Not at all. I thank Ms Logan for her excellent presentation. Her ten minute submission was very worthwhile. I hate following my colleague, Deputy Howlin, as he always asks the questions I wish to put as if he reads my mind.

When I sat on the Medical Council three or four years ago, we considered a very high profile case in which a doctor came before us having validated several cases of child sexual abuse. She indicated that the perpetrator in most cases was a family member, usually the father of the children. The matter ran over several years. What amazed me most was that younger children, aged between three and seven years, were by far the best witnesses. They were much better providers of information than children over seven. When a child is over seven years, he or she can be got at from home and possibly by the person who abused them. I saw that children could tell their stories in their own way and through different mechanisms, whether it was through the use of a colouring book, the drawing of a picture or the use of anatomical dolls. They could tell their own stories and made very credible witnesses.

I agree with Ms Logan about witness testimony. Looking at that kind of evidence was upsetting when the children did not know they were being taped. If a child had to give direct evidence in open court, albeit in camera, it would be very upsetting for him or her. I would hate to see us go down that road. Do we still have mechanisms in place for that type of evidence gathering? I agree with Ms Logan also that a lack of constitutional recognition has serious consequences for children and am glad to hear her back constitutional reform.

Ms Logan

In January this year, we made a submission on child protection that consisted not of an investigation but of a compilation of raw data from families and children on their experiences. One of the interesting results of the work was the reporting of social workers at grassroots level that they were very aware of the rights of the family. People feel very apprehensive when familial abuse means that intervention is required. Children must be considered as experts of their own experience regardless of their age and it is important that we elicit the help of people who are very skilled in working with them. Currently, the mechanisms in place are operated by the HSE, where staff have vast experience of working with children. We have other experts like Imelda Ryan. She has done fantastic work with very young children who have been abused. It would be worth hearing her expert view.

Chairman

We will hear from her next week.

Senator Feeney

As a result of my experience on the Medical Council, I learned that neonatal children who are only a couple of weeks old have been abused. I did not know that, which I am sure is also the case for many people. I am glad, therefore, to hear Ms Logan say that children must have their own rights and be called as expert witnesses, whether it is to provide evidence verbally or through other mechanisms.

Ms Logan

While I emphasise that children's voices should be heard, I do not suggest that they should be called as witnesses as such. A forum or mechanism for hearing their voices should be developed.

Deputy Enright

I join the congratulations to the ombudsman on her work to date. Is Ms Logan considering a possible constitutional referendum on the rights of the child purely from the perspective of child protection or does she seek to enshrine rights for children in the Constitution in other forms also? Constitutional provisions tend to be briefly expressed although their provisions may not be found to be narrow when interpreted by the courts. Generally speaking, however, a referendum does not seek to include especially lengthy amendments to the text and it is difficult to devise in a small space a wording which reflects what people want.

In her presentation, Ms Logan referred to consensual behaviour among young people. Does she have a view on age of consent bands? The Law Reform Commission recommended in its 1990 report the creation of five-year age bands from 12 years to 17 years while other proposals setting out narrower bands of perhaps two years have also been mooted. Obviously, there is a difference between a 45 year old and a 14 year old. Has Ms Logan given the question much consideration? While I agree with her to a degree that the key issue is consent, the matter is not straightforward.

Ms Logan

In enshrining rights in the Constitution, it is of concern that we might end up with a provision which simply legislates in the context of the CC case. I hope for a general provision that recognises children as individual rights holders rather than one which simply makes provisions in a child protection context.

There are people who have better expertise on age bands than we do, although we have spoken about it. I am aware from my own child health experience that age differentials are very important. Having sexual intercourse at age 12 or age 16 can mean very different things. I refer specifically in this context to my experience in Crumlin and Imelda Ryan's work in St. Louise's unit. It would be worth hearing Dr. Ryan's views in this area. While we have not included consideration of age bands, I am aware of the complexity power imbalances and age differentials create in this arena. People such as Imelda Ryan could provide the committee with more expertise on the differential which is full of complexities and nuances in terms of young people's understanding of relationships. I have met young people who having been abused in the context of a family do not perceive anything wrong with the sexual relationship taking place until they undergo a process of assessment and validation. I would prefer to leave the matter to be addressed by Ms Ryan if the committee is agreeable.

Deputy Enright

With regard to age bands, Ms Logan spoke about our knowledge of the type of behaviour in which young people engage and not wanting to criminalise them. We must look at our duty to protect young people even with regard to behaviour in which they engage with each other. I appreciate that may be a simplistic answer, but the alcohol related laws are a parallel that we can look to. Does Ms Logan have a view on that? We accept that 16 year olds are engaging in consensual sexual activity. If that becomes 14 year old children, and it is in many cases already, should a line be drawn, or how should we protect them?

Ms Logan

As adults we have not responded to the changes experienced by teenagers. Anyone who has watched MTV will know it often broadcasts what could be described as soft pornography in terms of music television. There are many new things in young people's lives that we did not have growing up. The UN committee highlighted that gaps exist in the education system in terms of specific adolescent programmes in regard to such issues as health promotion and sexual health behaviour. I agree we may be sitting here in ten years' time talking about the fact that teenagers are having sex at a younger and younger age while not having acted to close that gap. There is an obvious gap in the education system and our willingness to support people. Again, I cite Scotland as a model in terms of practice and its mobilisation of support from parents and communities willing to speak about the issue. Some of the children I met, particularly those in rural communities, find they have nowhere to go to discuss these issues. They believe if they discuss these issues with their general practitioner, their mother, teacher and everybody else will find out. There are many differences between urban and rural experiences.

Mr. Bernard McDonald

Ms Logan spoke earlier of how we are to deal with teenage sexuality whether through criminal law or otherwise. Many reports including the Crisis Pregnancy Agency report and the evaluations on SPHE or RSE in schools highlight gaps in our education system in terms of how we support young people through what has been a decade of not only enormous economic change but social change as reflected in the sexual mores of today's young people. As the ombudsman stated, while a great deal of work has been done in second level schools in terms of SPHE and RSE, a great deal remains to be done. As highlighted by best practice elsewhere, some of the existing gaps can be addressed by trying to mobilise and empower parents to work with their children while supporting the SPHE programmes in school. The voluntary youth sector could also be useful in this regard.

The Scottish model at senior cycle level, which is equal to ours, encourages the use of youth workers working with young people in the school environment. We can learn a great deal from this as we tackle issues surrounding educational support for young people in schools.

Minister of State at the Department of Health and Children (Deputy B. Lenihan)

I apologise for arriving during the ombudsman's address. However, I have had the benefit of reading it and her preceding submission. As she will appreciate the committee has a short time focus which necessarily results in a tight focus in terms of issues as provided for in its terms of reference. The whole subject of the abuse of children as a phenomenon in our society has been considered in the Ferns Report and the widespread public debate which took place in reaction to it, including a number of Government decisions. However, the committee's focus is narrower in that it relates to the substantive criminal law procedures and whether the Constitution provides a proper foundation for all of this.

I will deal first with the substantive criminal law issues that arise. In his submission to the committee — I can say this on the public record — the Director of Public Prosecutions was strongly of the view that the traditional approach of the common law of categorising gender specific offences should be maintained. He maintains that——

Deputy Howlin

The Minister cannot choose what can be put into the public domain.

Chairman

Members need to be careful.

Deputy B. Lenihan

If I am correct, this information was published in the newspapers.

Chairman

I would be reluctant to report on what the DPP said in private session.

Deputy B. Lenihan

I will not do so. I will put the issue in the terms in which he referred to it and will not refer to the DPP anymore. The committee must have regard to the DPP's views.

The view has been expressed that where a gender specific offence such as rape has been committed — rape can only be committed by a man on a woman though a woman can commit heinous acts on a man — we must respect that traditional vocabulary in the formulation of offences. These are, in a sense, offences which of their very essence are gender specific. What is Ms Logan's view on this?

Ms Logan

My view is that we should not discriminate. I was not aware that rape can only be committed by a man on a woman. Rape is an offence that can be committed by a man on a man, is it not?

Deputy B. Lenihan

There is another term in common law for that offence.

Ms Logan

We should not discriminate. I can understand why we might choose to give immunity to girls — we have discussed this issue before — but I do not understand the justification for not protecting boys.

Deputy B. Lenihan

Recently enacted legislation in this area addresses the protection of boys and girls. We sought to extend the protection to boys and girls while trying to address the concerns expressed about how sustainable prosecutions were by stating that girls had immunity in respect of a particular act. That is how the Legislature balanced it. The view has been expressed that this is an inelegant way of balancing it and that it would be more honest to recognise that the different acts are in fact different offences. I wonder if Ms Logan has a view on that though she does not necessarily have to have one.

Deputy Howlin

The Minister is fishing for justification.

Deputy B. Lenihan

No, not really.

Ms Logan

The bottom line is that I am against the criminalisation of children who engage in consensual sexual activity.

Deputy B. Lenihan

That is quite a far-reaching proposition. The age of consent in our legal system has traditionally been understood to be an absolute protection for children against sexual violation irrespective of the age of the violator. Ms Logan stated she is against the criminalisation of children engaged in consensual sexual activity under a designated age. The effect of this is to suggest the child is capable of giving consent. The whole point of the law is to suggest the child is not capable of doing so.

Ms Logan

I will reiterate a point made in my written submission. Section 3 states "that children between the ages of 15 years and 17 years, save with the consent of the DPP....". I have requested that this provision be extended to section 2 so that if such a situation arises and we are faced with such a decision as a last resort, that we have in place a mechanism which informs us that the rationale for the decision being made is in the best interests of the children.

Deputy B. Lenihan

Is that not putting a difficult burden on the DPP? Traditionally, the DPP has resisted any suggestions in any context that this be factored into his discretion. How can prosecution of an offender ever be in his or her best interest?

Chairman

I was going to ask a question which, with the indulgence of the committee, I will ask at this stage. Ms Logan specifically recommended that the legislation incorporate the best interests of the child principle on the basis that this proposition had been put forward by the UN Convention on the Rights of the Child, that it should have been specifically incorporated in this legislation and should be included in any amending legislation. Is it possible to incorporate in legislation the bald principle that in all the procedures of the criminal trial such as the questioning, cross-examination and the best interests of the child should be paramount? Where lie the interests of the accused? Is it possible to insert such a principle in the legislation? If so, how will we do it?

Ms Logan

I should have emphasised that the best interests of the child should be "a" primary consideration rather than "the" primary consideration.

Deputy B. Lenihan

I accept that, but allowing for it, the Director of Public Prosecutions is in a difficult position in weighing up a primary consideration, on the one hand, with, on the other, the desirability of a prosecution on the basis of a Garda file that establishes facts. I merely make the point that it creates a difficulty.

On the issue of the age of consent, a view has been forcefully expressed by the Leader of the Opposition in the parliamentary debate that a strong signal must be sent to the community regarding the acceptable age at which sexual activity can take place and that cannot, therefore, be qualified or modified in any way, nor can there be exceptions to it. Taking that argument on its merits, Ms Logan does not really agree with it because she is saying that once there is consensual sexual activity between persons under the age of 17 years, no criminal liability should attach. Is that correct?

Ms Logan

That is correct.

Deputy B. Lenihan

Many in our society would not agree with that proposition. They would be concerned about the signal that would send to children. They believe there should be an absolute zone of protection where one says of children they are incapable of giving consent to any other person. We will move on because I appreciate Ms Logan must look at the matter from the point of view of the child.

Ms Logan

According to the groups I met, when teenagers are involved in sexual activity, they do not consider or even know what the age of consent is. The biggest gap is one of education. Even if we were to legislate and change the age of consent, it would not make a whit of difference to the teenagers who will engage in early sexual activity.

Deputy B. Lenihan

We have anecdotal evidence that many children believe the age of consent is 16 years because the age of consent in Britain is more widely known than the age that obtains here or in Northern Ireland. I do not want to dwell too long on this. Let us assume for one moment that the members of this committee take the view — I am not saying they will — that people want a strong signal to be sent. Has Ms Logan any view as to what the appropriate age would be? If committee members take the view that one cannot decriminalise a particular activity for a child, what age is the correct one to fix as the age of consent, as it is traditionally understood? I appreciate Ms Logan's strongly expressed view on consensual activity among teenagers.

Ms Logan

I am not going to say it should be 16 or 17 years, as it would be wrong of me to do so. It would be giving the committee a subjective opinion and we should steer clear of adults' subjective opinions on this issue. The committee has engaged in consultation with children. It would be worth talking to people who work with children in the youth sector, those who deal with the outcome of early sexual activity. There is also research to be published in the next couple of weeks which was carried out by the ESRI and the Royal College of Surgeons Ireland. I understand it will bring forward some interesting information that will inform the committee. Adults as young as 18 to 25 years were asked about their experience as teenagers. The research has not been published yet but I believe there is interesting information. It would be wrong to pick an age without proper consultation and an understanding of children, their parents and community.

Deputy B. Lenihan

We have to make a decision.

Ms Logan

I appreciate that it is very difficult. Research suggests there are even differences in opinion between genders. Girls feel differently from boys. It is not even that there is a blanket age. It is complex. I am not going to give the committee an age.

Deputy B. Lenihan

I am moving on from the substantive criminal law to the procedures. One of the strongest parts of Ms Logan's submission is the very large number of changes, reforms and improvements she wants to see in the treatment of the child witness in this type of case. Again, this is a committee of the Legislature. The Criminal Evidence Act 1992 provides the foundation for the reception of evidence of children. Is Ms Logan satisfied that the legal and statutory foundation is satisfactory for us to implement what she proposes in her paper in that connection?

Deputy Howlin

Why have we not signed commencement orders?

Deputy B. Lenihan

We have signed commencement orders in regard to part of it. There is one section yet to be implemented. That is the one to do with the examination-in-chief.

Ms Sophie Magennis

We recognise that the Criminal Evidence Act 1992 contains certain provisions but do not think they go far enough in their current terms. One of the interesting questions raised was the issue of balancing the right to a fair trial under Article 38 of the Constitution and the protection of child witnesses. I have done some reading on this and much good work has been done in Scotland. They try to turn the whole debate around delivering justice and protecting children. They see the two as going together. They ask people to step outside the box in terms of adversarial court procedures and look at the fact that it is a young child who is giving evidence. It is in the interests of justice to get that child's best evidence. Constitutional courts in South Africa and other jurisdictions have, therefore, held that it is all right to limit, to a certain extent, a defendant's right to a fair trial if it is in the interests of justice in getting the very best evidence out of the child witness. I refer the committee to the Vulnerable Witnesses (Scotland) Act 2004 which sets out a range of measures to protect children. This applies to all children below the age of 16 years. There is similar legislation in Northern Ireland for vulnerable witnesses which relates to all children under the age of 17 years. They set out exactly the measures about which we are talking which include video evidence, a ban on cross-examination by a defendant of a child witness, pretrial measures and video-linking. The argument is made that these potential limitations on a defendant's fair trial rights are all right in that the interests of justice are served in that the child's best evidence is being obtained. We suggest these provisions be examined. In terms of the Criminal Evidence Act, we would be talking about that provision being extended to all children from the age of 18 years down. Those provisions need to be beefed up a little.

Deputy B. Lenihan

We will look at that legislation. Perhaps the legal adviser could look at the legislation referred to. The Criminal Evidence Act contains provisions regarding the video-recording of the examination-in-chief which has not been commenced and cross-examination by video link which has been commenced.

Deputy Howlin

Why has it not been commenced?

Deputy B. Lenihan

I understand a protocol has to be worked out between the HSE and the Garda Síochána. This has proved very difficult.

Deputy Howlin

The legislation has been in place since 1992.

Deputy B. Lenihan

It has. It has spanned a number of Administrations.

Deputy Howlin

The Garda Síochána wants it desperately, according to its testimony to the committee.

Deputy B. Lenihan

We can deal with that issue. We are on a different one. Again, that was discussed in the parliamentary debate. To return to this issue, Ms Logan mentioned restrictions in cross-examination and its abolition. Clearly, in the light of the CC case, that would be unconstitutional. It is not open to us to legislate for it.

Deputy J. O’Keeffe

Is there any differentiation between cross-examination by an accused personally or cross-examination by lawyers representing the accused? I understand that differentiation has been made in the UK. Personal cross-examination by the accused has been eliminated in certain circumstances. Perhaps the issue could be dealt with?

Ms Magennis

I wish to return to the question on the possible constitutionality of those limitations. In our paper we pick out a High Court case in which Mr. Justice Kinlen stated that there is no constitutional right to confront an accused in court. We noted in that paper that this has not been subjected to test in the Supreme Court. However, I note that Mr. Geoffrey Shannon's submission to the committee cited two cases, one of Donnelly v. Ireland and another of White v. Ireland, in which the Supreme Court and the High Court held that there is no constitutional right to confront a witness in court. It was in the Donnelly case that there was no right to physical confrontation.

I understand the Minister of State's concern. That is one of the reasons we have stated that the types of changes we are looking at may well need to be shored up with additional constitutional protection. I noted that at the first meeting of this committee in July, this was one of the issues that both Cabinet-level Ministers expressed a concern about when they stated that they wanted the committee to look at ways of protecting children who might be subject to proceedings under the 2006 Act. They stated they were open to constitutional change if such change was necessary to shore up those measures.

Although we think there are two cases — Donnelly v. Ireland and White v. Ireland — that might support the view that a constitutional challenge could be resisted, our view is that it would be much better to do what the Constitution Review Group, the UN and many commentators have suggested, namely, the insertion of the constitutional protection to shore up these measures. A review of those cases would be pertinent also.

Chairman

Members of this committee will be getting a briefing on the Donnelly case.

Deputy B. Lenihan

I wish to return to the Criminal Evidence Act 1992. Mr. Justice Kinlen's observations were made in the context of a decision on the video link evidence, which is a recognised feature of our legal landscape already. It is not an issue.

Deputy Howlin

That is Mr. Justice Kinlen's authority.

Deputy B. Lenihan

Is anything being proposed beyond the 1992 Act that does not raise constitutional questions? Is anything being proposed procedurally that requires legislation? Ms Magennis is stating that stronger legislation is required, but does any of the strengthening of the legislation required raise a constitutional issue?

Ms Magennis

We have stated in our submission that we fear certain parts of what we are suggesting may raise a constitutional issue. As has been stated, we are not happy that case law — particularly the Kinlen case that has been mentioned — absolutely clarifies that a ban on cross-examination by a defendant of a witness will withstand a constitutional challenge.

We have looked at the law in Northern Ireland and Scotland, which provides that a defendant can be banned from cross-examining a vulnerable witness. It is actually put into legislation. I understand that in Ireland we have judicial review of legislation, and the legislation itself could be challenged. That is why we are stating that we have had a number of problems in Ireland over a number of years related to the protection of children. This is one example we are looking at currently.

We are in favour of a general provision that would enable us to shore up a range of child protection measures, with the protection of children in court being one of them.

Deputy Howlin

I was just thinking of the drafting of a constitutional amendment to capture all Ms Magennis has just stated. It would be a recital longer than a normal legal enactment.

Ms Magennis

The Constitution Review Group suggested wording. It suggested that the key principles of the UN Convention on the Rights of the Child be put into the Constitution. For example, if a provision was placed into the Constitution that the best interests of the child can be considered by the Supreme Court independent of anything else, it would be arguable that there is a constitutional protection for the best interests of the child, and therefore when weighing the rights of the child against the fair trial rights of the defendant, there would be a new balance to be considered by the Supreme Court. This new balance would be different from that considered during the CC case.

That is a simple point of principle. It is not too complicated.

Chairman

In other words, if that general position had been in the Constitution, the Supreme Court could have come to a different conclusion in the CC case.

Ms Magennis

That is arguable.

Deputy B. Lenihan

I will deal with that now. We have gone through the substantive criminal law and the procedures. I want to deal with the Constitution, as Ms Magennis has not satisfied me that there is any change requested in the 1992 Act that does not involve a constitutional issue. Our Supreme Court has always insisted on the fundamental importance of the confrontation involved in cross-examination. The Supreme Court upheld the video link provision in the decision referred to, but the Supreme Court has always insisted on the value that confrontation in cross-examination provides.

Deputy Howlin

Was the Kinlen decision tested in the Supreme Court?

Deputy B. Lenihan

The Kinlen decision simply states that we were right to provide for video link cross-examination. It does not criticise the principle of cross-examination itself. There is no authority in Irish law, as I understand it, which indicates that cross-examination of a child cannot take place under any circumstances.

The 1992 Act is as far as we can go under the present constitutional arrangement. Does Ms Magennis accept that?

Ms Magennis

I accept that it is our concern. That is the reason we have set out in our written submission that the additional protection measures we are seeking need a constitutional change, in our opinion, in order to shore them up.

We are making the same point in that we are concerned that current legislation does not go far enough, and that there must be additional protections for children. We are also concerned that such additional protections would not withstand a judicial review at the moment. Therefore, we need a constitutional change to enable legislation to put those protections in place for children.

Deputy J. O’Keeffe

With regard to the issue I raised, could one change the situation that an accused could not personally cross-examine a vulnerable witness, while at the same time having the entitlement to have such a cross-examination conducted by a legal representative? I have a feeling that would stand up to a constitutional challenge. The right to cross-examination would not be eliminated. Is that an extension which could be put in place without a change to the Constitution?

Chairman

Before that is answered, I remind the committee we will receive a detailed briefing on this issue later. I am anxious to bring in Senator McDowell, who has been very patient.

Deputy B. Lenihan

We will not be much longer.

Deputy J. O’Keeffe

I would like a reply as it is a practical and sensible action which we should carry out. I will be recommending to the committee that we do it.

Ms Logan

I remind the committee we are talking about children of different ages. It is a challenge to the committee. There is a vulnerability and the issue is very complex. The concept of cross-examination by an accused should not be overstated.

Ms Magennis

The legislation we have referred to in Scotland and Northern Ireland enables cross-examination via video link. We are not talking about taking away a defendant's right to cross-examine in some form or another. We are seeking to protect children from being cross-examined directly by a defendant, or from being cross-examined in a courtroom where they may have to look at a defendant, and not be able to produce their best evidence.

Deputy B. Lenihan

The 1992 Act provides for this.

Ms Magennis

The 1992 Act makes provisions for children under the age of 14. We are talking about children under the age of 18.

Deputy B. Lenihan

Is that the change being sought?

Ms Magennis

We are also seeking the ability to conduct not just video evidence in chief by recording, but cross-examination by video. That is the regime they have in Scotland and Northern Ireland.

Deputy B. Lenihan

Yes. We can consider such legislation. It is important to put the proposals in context.

I wish to turn to the more general issues of the Constitution raised by the ombudsman. The question of children as individual rights holders was raised. Under our Constitution children are individual rights holders. They have a right to their life, liberty, good name and property. I accept it is not expressly stated but it is absolutely implicit and beyond question in the constitutional text. Is that accepted?

Ms Logan

The UN committee commented on the conservatism of the Supreme Court, particularly in more recent times and the difficulty that seems to present in terms of the ambiguity between High Court decisions and the conservative nature of the Supreme Court decisions and they focussed on four particular landmark decisions by the Supreme Court.

Deputy B. Lenihan

All those conflicts relate to issues concerning the family, education and the relationship between the parent and the child. Children's personal rights are fully guaranteed under the Constitution. As I understand it, the conflicts identified by the UN committee all relate to Articles 41 and 42 of the Constitution which grant parents rights. The UN committee maintained that the balance had not been struck correctly in that regard.

Ms Logan

That is right.

Deputy B. Lenihan

I would like to be exact on this. The phrase "individual rights-holder" is used a great deal in debates, and that is why I wish to deal with it. Children have rights as individual rights-holders under the Constitution. However, in the view of the UN committee, they are disadvantaged by the balance of rights between them and their parents not being correctly stated in those provisions. That is far removed from our business today.

Article 38 is the constitutional provision dealing with the trial of offences in due course of law. Can a case be made in the context of Article 38 for a specific constitutional amendment giving children special protection in criminal proceedings?

Ms Logan

Can I take that question with me and contact members tomorrow morning? Otherwise, we could be here for a long time.

Deputy B. Lenihan

That is my last question.

Ms Logan

I will be very happy to provide a view on that in the morning.

Deputy B. Lenihan

The cross-examination is over.

Deputy Howlin

We did not like to cross-examine the Minister of State.

Chairman

I remind members that they should direct questions through the Chair.

Senator McDowell

Playing Devil's advocate, I put an argument to the ombudsman following what the Minister of State has said. I hasten to add that this view does not reflect mine. It is said that if one seeks to guarantee children's rights as individual rights-holders, one inevitably diminishes the rights of parents and the family unit. It is said that parents are best placed to protect and care for their children, since they have knowledge of them that no one else has. The family is considered the context in which we should view such issues, and by giving individual rights to children, it is felt that we risk providing a charter to meddling third parties, whether they be appointed by the State, by voluntary bodies or by themselves. Experience of such developments in other jurisdictions has not been 100% positive. I am thinking of cases involving social workers in the United Kingdom.

That is the counter-argument made. No one on this committee has done so, but we would be deluding ourselves if we did not think it would be put in the context of any argument for a constitutional amendment.

Ms Logan

Article 5 of the UN Convention supports and is consistent with our Constitution that the family is the right environment in which to raise a child. We have seen research from NUI Galway showing that children support the view that the family is the most important unit and environment to them.

I suspect that we do not know of certain things that are happening; I am not talking about the average child. We have seen cases such as that of Victoria Climbié in the UK, and I know that there have been other cases there that did not work out. However, that was in the absence of a written constitution. I suspect that we will be here in five or ten years discussing some dreadful case that has happened in a family context.

I do not think that it is enough. Parents require absolute autonomy to rear their children as they see fit. However, in the extraordinary cases where that does not happen——

Senator McDowell

Surely Ms Logan does not believe that parents should enjoy absolute autonomy.

Ms Logan

Yes, I do. Parents should have the right to raise their children as they see fit without interference, but I am not talking about the average child who is being brought up in a loving, caring family. Here we are talking about children in vulnerable situations where the family does not have the capacity-----

Senator McDowell

In which case it should not have autonomy.

We seek to create opportunities for intervention in the interests of the child, which means diminishing parents' autonomy in caring for children. We seek to intervene where they do not care for them. That requires a person to make the judgment of where proper care is not being provided, and inevitably that is a third party, whether appointed by voluntary bodies, health boards, or some other arm of the State. That is the argument that will be made. If we went along with this amendment, Ms Logan would find herself sitting in a television studio in three months' time opposite a mother asking her who she is to tell her how to bring up her children. I am giving her the opportunity to rehearse her answer.

Chairman

I do not know whether the submissions have been circulated yet, but we have received quite a number. They will certainly be circulated before our next meeting.

Ms Logan

I am here to represent children and highlight concerns that they bring to me. The family is the most important thing to any children to whom I have spoken. I have no desire to interfere in any family, and no business suggesting that. My concern is where the family is not working, the environment not right, and the child vulnerable. The challenge is to that environment, which is putting the child at risk. We must protect such children, and by and large I do not speak of the average child living in Ireland.

Deputy J. O’Keeffe

Sometimes the protection is from the family itself.

Ms Logan

Yes.

Deputy J. O’Keeffe

It is a difficult area.

Chairman

There being no further questions, I thank Ms Logan most sincerely on the committee's behalf for her contribution. As we expected, the exchange of views has been most informative for us, and it will certainly influence our thinking regarding the proposals we will make at the end of our deliberations. I also thank Ms Magennis for answering some of the more technical legal questions that arose, and Mr. McDonald, whose attendance is very much appreciated.

We will have a short suspension while we invite our next guest to come forward. We thank the witnesses once again for their attendance.

Sitting suspended at 6.55 p.m. and resumed at 7 p.m.

Chairman

I welcome representatives nominated by the Garda Commissioner, Mr. Noel Conroy, to appear before this committee, Detective Chief Superintendent Noel White of the National Bureau of Criminal Investigation, Inspector Pat Burke, representing the Garda central vetting unit and Detective Superintendent John Fitzpatrick. I thank them for attending today.

The committee decided at the beginning of its deliberations that it would be useful to receive a briefing from the Garda Commissioner on operational aspects of areas of Garda activity relating to child protection which relate to our terms of reference. Committee members wish to focus particularly on two main areas, first, the operation of the sexual offenders register and of the Garda central vetting unit, and co-operation with the Northern Ireland authorities in exchanging intelligence and information on matters relating to that register, and those with which the central vetting unit deals.

Our second area of interest is the interviewing of, and taking of statements from, child witnesses, the recording of these and the use of video links to facilitate examination of them in court cases, particularly in the area of sexual offences. We are grateful for this opportunity to hear from the Commissioner's nominees on the practical aspects of their valuable work in this area, with a view to informing the deliberations of the committee.

Detective Chief Superintendent Noel White

I will briefly run through the Sex Offenders Act 2001, after which we can discuss any difficulties in respect of that Act. We can inform the committee of the work we do with our colleagues in the North of Ireland and the different moves in place on the exchange of information with them. My colleague from the vetting office will give a run down on the work of his section. We will answer any questions on the matters the Chairman has mentioned.

The Sex Offenders Act 2001 came into force in this jurisdiction on 27 September 2001. That Act places an onus on sex offenders to report their movements to the Garda Síochána and to be part of post-release supervision by the probation and welfare service. Section 3 of the Act stipulates the offences for which an individual is made the subject of the Act and several different offences are stipulated in the Schedule, such as rape, sexual assault, aggravated sexual assault and rape under section 4 of the 1990 Act.

Where an individual who is in prison is about to be released, the governor of the prison will notify the Garda at least ten days before the individual's release. The onus is then placed on the individual within seven days, to attend personally at, or report in writing to, a Garda station which is a divisional or district headquarters. The offender must give his or her name, address and date of birth. If the offender changes address or any other details the offender must notify us of this within seven days. Similarly, if the offender is leaving the jurisdiction for more than seven days he or she must notify us of this, or pay a fine. On receipt of the notification the sex offender notification form must be completed and sent to the domestic violence and sexual assault investigation unit in Harcourt Square. It is also sent to the inspector in the district in which the sex offender proposes to reside who will monitor the person's activities in that area.

A chief superintendent may make an application known as a sex offender's order to the court. This is made against a sex offender whose behaviour in the community gives reasonable cause for concern that such an order is necessary to protect the public from serious harm. The criteria for this are that the offender must have been convicted of a qualifying sexual offence before or after the Sex Offenders Act came into force, and must have acted in a way that gives the court reasonable grounds for believing that an order is necessary to protect the public from serious harm. That application is dealt with in the Circuit Court on the civil standard of proof, that is, on the balance of probability, not beyond all reasonable doubt. A sex offender must notify a prospective employer of the fact and nature of his or her conviction, if he or she applies to do relevant work which will consist in the offender having regular unsupervised access to, or contact with, a child or children or a mentally impaired person or persons.

Information is shared daily on a police-to-police basis between the Garda and the Police Service of Northern Ireland, PSNI. The two jurisdictions have agreed a memorandum of understanding but have not yet signed it. That is imminent.

We also exchange personnel, for example, recently a member of the PSNI came to work in our sexual assault unit and we exchanged information about our respective work practices. We are also involved in the co-operation on criminal justice matters, a registered offenders project advisory group, with our colleagues from the North of Ireland. This group discusses practical ways to share information, the memorandum of understanding and the harmonisation of legislation.

The seven-day reporting period in this jurisdiction differs from the three-day period in the North of Ireland. If an individual from the North of Ireland comes to this jurisdiction or vice versa he or she must go before the court to get a notification order, which must be justified within the courts, to bring him or her within the terms of the Sex Offenders Act 2003. If an individual from an outside jurisdiction comes to this jurisdiction he or she is automatically subject to the provisions of the Act here.

Our system and register are paper-based. We are working to computerise it and integrate it into our PULSE system. We are progressing that work which may hopefully come on-stream soon. Some of our inspectors on the Border have gone North where they have visited the MASRAM groups, and the Northern Ireland sex offenders strategic management committees to see how that system works. They have also worked with practitioners on the other side of the Border who deal with the same issues and can exchange information on offenders who regularly travel North and South. I will take questions if committee members wish.

Chairman

I will ask the detective chief superintendent's colleagues if they wish to make a brief presentation. Committee members have specific questions they want to ask.

Detective Chief Superintendent White

Inspector Pat Burke from the Garda central vetting unit will make a submission, while Detective Superintendent Fitzpatrick will answer any questions asked.

Chairman

I ask the inspector to make a brief presentation. We will then take questions.

Inspector Pat Burke

I will take less than ten minutes.

Chairman

Can Inspector Burke keep it to five, please?

Inspector Burke

I will. I will briefly provide the historical context to the Garda central vetting unit and some information on current operations. The unit was established by the Garda Commissioner in January 2002 with a small team alongside the Garda criminal records office and was staffed by eight people, plus a sergeant and staff officer. In August 2002 the incident in Soham prompted a huge increase in the demand for vetting. In November that year the Commissioner set up a working group to consider the expansion of Garda vetting. It reported in February 2004, following which we were allocated additional resources. In January 2005 the Commissioner decided to decentralise the central vetting unit from Garda headquarters to Thurles. I was appointed in May that year and my first six months were taken up with that process. Currently, we are involved in an expansion programme.

I will make a few points about the demand for vetting. We have been asked what we are required to do. The working group has become an interdepartmental implementation group on Garda vetting, to which I report approximately every six weeks. It is made up of representatives from the relevant Departments, the Department of Health and Children, the Department of Justice, Equality and Law Reform, the Department of Arts, Sport and Tourism and the Department of Education and Science. We carried out a needs analysis in those Departments earlier this year and found the demand for vetting to be huge. Huge numbers, including independent providers, charities and children's organisations, come or write to me daily. Once everybody is registered, it seems we will need to vet some 550,000 persons per annum.

Deputy Howlin

Did the inspector say 550,000?

Inspector Burke

Yes.

Deputy Howlin

As there are only 4 million of us, we will all be vetted within four years.

Inspector Burke

A comparative analysis can be made with Scotland which has a population of between 4.8 million and 4.9 million. There 650,000 persons per annum are vetted.

Deputy Howlin

Do the same names recur?

Inspector Burke

A number of cases involve re-vetting. Others are new to the child care environment. Following international best practice, people are re-vetted every five years because after we issue a vetting certificate, we do not know what they do. Also, a local teacher may be vetted both as a teacher and as a volunteer in the youth service or the GAA.

Deputy Howlin

That must place huge demands on resources.

Chairman

Please allow Inspector Burke to finish. We will then move onto questions.

Inspector Burke

In addition, I manage the Garda criminal records office which has a huge role in the workings and functions of the Garda Síochána which I do not wish to go into at this stage.

As part of our expansion programme, we deal directly with our customer organisations. For example, once the HSE provides us with liaison personnel to send applications to us, we train them to provide the best evidence for us to ensure we can return the best evidence to them from the criminal records database and in the management of disclosures. This is done within the frameworks of natural justice, human rights and existing legislation.

A number of organisations, including Internet banking firms and many others which do not employ people to work with children, also seek vetting. The big challenge is to bring everybody within our remit which we are working towards in a phased roll-out of the process and to train and register everybody who employs people to work with children and vulnerable adults to ensure they work with us.

Deputy Howlin

I am in awe of the ability of the inspector to take on such a workload with a paper-based system. How does he get through 500,000 cases when the Minister for Justice, Equality and Law Reform expressed his surprise that the sex offenders register was operated using a paper-based system, rather than one which was accessible in one location on a computerised basis? It seems virtually impossible to get through such a level of vetting using a paper-based system.

Detective Chief Superintendent White

The vetting system is not paper-based. The sex offenders register is.

Deputy Howlin

How does the Garda Síochána vet people if it does not have access to data included in the sex offenders register?

Detective Chief Superintendent White

The sex offenders register is paper-based but the vetting system is not.

Deputy Howlin

The Garda Síochána checks the computer-based criminal records.

Inspector Burke

Yes, on the PULSE system. They are two separate systems.

Deputy J. O’Keeffe

The Garda has to deal with enormous numbers of applications for vetting. Does it have automatic access to information on someone included in the sex offenders register which should be the first port of call when dealing with an application for vetting? Can the inspector find out if a person who is the subject of a vetting application is on the sex offenders register?

Inspector Burke

No, I cannot find out immediately. However, I can find details of his or her criminal convictions and any prosecutions taken against him or her. I cannot discover if he or she is on the sex offenders register.

Deputy J. O’Keeffe

Surely that is a most fundamental requirement.

Deputy Howlin

It follows that the inspector does not have access to any criminal conviction records outside this jurisdiction. If a person is convicted outside the jurisdiction, he or she is required to register as a sex offender on entering the country but that would not come to the inspector's attention.

Inspector Burke

Unless it occurs in Northern Ireland.

Deputy Howlin

If the inspector was to receive an application for vetting of a sex offender from outside the island of Ireland who had complied with the law and registered as a sex offender in Ireland, he would not know about it. He could clear him or her without being aware of the existence of his or her name on the sex offenders register.

Inspector Burke

That is correct, unless I receive details of convictions under a mutual assistance programme, whereby participating countries send details of Irish people convicted in EU member states.

Deputy Howlin

How common is that? How many countries participate in such a programme?

Inspector Burke

I receive approximately 20 reports per month.

Deputy Howlin

It is entirely hit and miss.

Inspector Burke

I cannot say whether it is entirely hit and miss.

Deputy Howlin

It could not possibly be comprehensive.

Inspector Burke

No.

Chairman

If someone asks the inspector to vet a person who has a record of sexual convictions, he can regard him or her as requiring to be registered accordingly.

Detective Chief Superintendent White

Absolutely.

Deputy Howlin

If he or she comes from the United Kingdom——

Chairman

The question is whether the Garda vetting unit can ascertain, through the PULSE system, information on convictions for sexual offences that will point the inspector to the likelihood that a person will be on the sex offenders register.

Inspector Burke

No. I disclose details of convictions to organisations and of prosecutions, whether pending or completed, regardless of whether they have been successful. I will disclose those to organisations. That is what people sign on their vetting application forms which come to me.

Chairman

But not whether or not they are on the sexual offenders register.

Inspector Burke

Correct.

Chairman

Why not?

Inspector Burke

I cannot answer that question. It is current policy, based on advice from the Attorney General.

Deputy J. O’Keeffe

In practical terms, is it not central to the success of the system that the vetting unit would know if someone was on the register and would have that information on its computer so that when Inspector Burke receives a request he would immediately be aware of the information?

Detective Chief Superintendent White

I can explain. If a sex offender comes to Ireland from, for example, Great Britain that information would come to us on a police-to-police exchange of information basis and we would be aware of that in the sexual assault unit in Harcourt Square. If a check is carried out through our vetting system, the information found would be made known to the vetting unit.

Deputy Howlin

Is Detective Chief Superintendent White saying that every convicted sex offender in Britain is notified to the Garda?

Detective Chief Superintendent White

No. I am speaking of those of whom we have notification.

Deputy Howlin

How do you get that notification?

Detective Chief Superintendent White

We cannot legislate for sex offenders coming to Ireland who do not register.

Deputy Howlin

Even the ones who register could be on the sex offenders register but not known to the vetting unit.

Detective Chief Superintendent White

They would be known to the sex offenders unit in Harcourt Square.

Deputy Howlin

But that unit is not involved in vetting.

Deputy J. O’Keeffe

If Inspector Burke, who I know is doing a good job, does not have the information how can he see the red light to signal that someone is on the register?

Detective Chief Superintendent White

We do not disclose every name on the register. We would certainly make it known to Inspector Burke.

Senator Terry

Who has access to the register?

Detective Chief Superintendent White

Those responsible for its management.

Senator Terry

Just within the detective chief superintendent's office?

Detective Chief Superintendent White

Within the Garda Síochána.

Senator Terry

No one else is entitled to see it.

Detective Chief Superintendent White

No.

Senator Terry

Is the detective chief superintendent obliged to disclose information to any person?

Chairman

I should have pointed out at the beginning of the meeting that the members of the Garda Síochána are not here to defend policy. They are here to tell the committee of actual procedures.

Deputy J. O’Keeffe

Is this a question of policy, of law or what?

Chairman

That is what we are trying to find out.

Deputy J. O’Keeffe

I am astonished that someone from the Garda vetting unit is not automatically notified of people on the register of sex offenders. Would it not make absolute sense that Inspector Burke's unit should be the first to be informed?

Detective Superintendent John Fitzpatrick

Notification from the UK that a sex offender is coming into this country comes to the domestic violence and sexual assault investigation unit, DVSAIU, which is based in Harcourt Square. That unit will inform the local inspector. For example, if the individual concerned travels to west Cork the inspector in Bandon will be notified and he will then be in charge of monitoring that person. That is how it works.

Deputy Howlin

That presupposes that the person decides to notify the British police authorities that he is to move to Ireland, that they pass on the information and that he applies for a job in the area where he has indicated he might go.

Detective Superintendent Fitzpatrick

The same applies to a person who is on the sex offenders list in this jurisdiction and who goes to England. If such a person goes to Great Britain it is up to him to inform us that he is leaving the jurisdiction. The onus is on him.

Deputy Howlin

I am more concerned with the nature of the sex offenders register. As a paper-based system it is, by consensus, wholly inadequate. Inspector Burke should have instant computer access to that register. Can we acknowledge its deficiencies and see what we can do about them? Detective Superintendent Fitzpatrick says it is to be incorporated into the PULSE system. Is that what is happening? What is the timeframe for that and does the Garda have the resources to do it?

Detective Superintendent Fitzpatrick

Discussions are ongoing with our IT people. They must judge whether it will be possible to incorporate the register into the PULSE system. That evaluation has not been completed.

Deputy Howlin

Does every Garda station which has the PULSE system — which is almost all of them — have access to all data on it? Do you not wish every garda to be able to access this register? Is that the issue?

Detective Chief Superintendent White

I can deal with that matter in relation to sex offenders. We envisage a certain level of access to that system at a certain stage. The inspector in the district, who would be responsible for monitoring an individual, would have access to that information and would be able to act on it accordingly.

Deputy Howlin

There would be coded access.

Deputy J. O’Keeffe

I still do not understand why the inspector in charge of vetting cannot automatically access the information.

Detective Chief Superintendent White

Any information relating to sex offenders which is available in Harcourt Square can be accessed by the vetting unit.

Detective Superintendent Fitzpatrick

If a Garda from the vetting unit checks an individual using the PULSE system and sees a reference to a sexual offence he or she will immediately make contact with the DVSAIU in Harcourt Square.

Deputy Howlin

That is predicated on an offence being committed in this jurisdiction.

Detective Superintendent Fitzpatrick

Or on an Irish person committing a similar offence abroad.

Deputy J. O’Keeffe

It appears as if information is being hoarded in one centre which should not only be available on request if the question of a prosecution arises but should be automatically transferred to the vetting unit.

Chairman

Inspector Burke, why do you not have this information on your database automatically rather than being prompted to check?

Inspector Burke

Because it is a paper-based system. Work is being done to put a system in place whereby the information will be incorporated in the PULSE system.

Deputy Howlin

We are all alarmed at this situation and we need assurance regarding the likelihood of this information being incorporated into the PULSE system.

Chairman

The gardaí are here to explain how the system works. It is not fair to ask them when a new system will be in place or why it will not be in place. We should find out what the system is and if it is working.

Deputy Howlin

Chairman, our original decision was to have the Garda Commissioner here to answer questions regarding the policy roll-out. When the PULSE system incorporates these matters is the Commissioner's responsibility. If it is not his responsibility you might tell us whose responsibility it is. If it is the responsibility of the Department of Justice, Equality and Law Reform we will ask representatives of that Department to come to the committee. Someone should tell the committee when this database will be efficient enough so that someone who is to work with children in Wexford or Cork can be vetted as comprehensively as possible.

Chairman

I will allow that.

Detective Chief Superintendent White

It is not true to say this matter is not receiving attention. The 2001 Act placed legal requirements on the Garda to decide if there were restrictions on placing this information on a system such as this. We have been in negotiation with our IT people to develop a system and those negotiations are at an advanced stage. I cannot give a date for when the information will be in the system but we are working to rectify the situation. We accept that the system is not ideal.

Deputy Howlin

Will the Garda come back to the committee if there is a legislative or resource issue or any impediment the committee can address to put that matter right as quickly as we can?

Detective Chief Superintendent White

We will certainly come back to the committee but the matter is being dealt with by the Garda authorities. I am confident the matter will be solved in the near future.

Deputy J. O’Keeffe

We are not here to be critical of the present Garda situation, although I have expressed astonishment at some aspects of it. We want to make sensible recommendations on an all-party basis. If the recommendations require extra resources for the Garda, that is fine. However, if there are other critical reasons we should not make our recommendations, we would like to know what they are. One of the recommendations should be that the vetting unit should be notified automatically. If there is a reason that should not happen, I would like to know what it is.

Is there any practical recommendation we can make on paedophiles from abroad, especially the UK, who come here but do not comply with the requirement to call to a local Garda station? Is there a recommendation we can make as to how best to protect our young children from the likes of them?

Detective Chief Superintendent White

There are a few matters we are currently working on with the Department of Justice, Equality and Law Reform which will lead to recommendations to amend the Act. One of the recommendations is for a power of arrest which we do not currently have where an individual comes from Britain and refuses to comply with the requirements of the Sex Offenders Act here.

Deputy J. O’Keeffe

Are they not breaching the Sex Offenders Act by failing to register within seven days?

Detective Chief Superintendent White

Yes. However, the action we must take where that occurs is to issue a summons.

Deputy J. O’Keeffe

Good heavens. That is the kind of loophole we would want to close.

Chairman

We will come back to that again. These are matters which are of practical interest to the committee.

Senator McDowell

How many names are on the sex offenders register?

Detective Chief Superintendent White

It contains 971 names.

Senator McDowell

It seems the system relies on a certain level of voluntary compliance by offenders. Is the Garda satisfied with the level of compliance or are there measures we could introduce to improve it?

Detective Chief Superintendent White

We are satisfied with the level of compliance. While there are exceptions to all rules, those are dealt with by the legislation.

Senator McDowell

Is the Garda in a sufficiently strong position to ensure compliance? If somebody moves to a different part of the country, is the Garda typically able to follow that person? Does the Garda find it generally has the information it requires to follow a man to ensure he complies to register a change of address?

Detective Chief Superintendent White

There are matters on which we are in discussion with the Department of Justice, Equality and Law Reform to make recommendations, as are our colleagues in the North of Ireland, to harmonise both jurisdictional systems.

Senator McDowell

I ask the question because it has been suggested to us anecdotally that a person can simply disappear from the system and that the Garda does not have the resources to follow that person up. We do not have hard evidence of that, however.

Detective Chief Superintendent White

Evading the Garda is a lifetime's pursuit for some individuals. There are difficulties with new legislation and it is only during its application that they become apparent. For example, while offenders are obliged to register at a Garda station which is a divisional or district headquarters, the legislation does not stipulate that the station must be in the area in which the offender proposes to reside. An offender could register in Letterkenny and live in Killarney.

Senator McDowell

Is there any evidence that offenders have done that?

Detective Chief Superintendent White

There are individuals who move, but I cannot give the Senator hard-fact evidence.

Deputy Howlin

Is it lawful to register in Letterkenny and live in Killarney?

Detective Chief Superintendent White

Yes.

Deputy J. O’Keeffe

We should change the law. Have there been many prosecutions under section 33 of the Act for failure to comply with conditions during the supervision period? There is a provision in section 16 for a sex offender's order whereby an application may be made to the courts to ensure an offender does not come within 200 m of a school. There has been evidence of such applications in the UK recently. Have applications been made here or are these provisions which have not been used?

Detective Chief Superintendent White

I am not in a position to provide the Deputy with figures on prosecutions, but I can revert to him on the matter.

Deputy J. O’Keeffe

Is Detective Chief Superintendent White aware of any application for a sex offender's order and, if so, of the types of order sought?

Detective Chief Superintendent White

I am aware that one order was sought on a particular individual before the Circuit Court.

Deputy J. O’Keeffe

Was that the only such application made?

Detective Chief Superintendent White

The order does not direct a person to do something, but rather prohibits an offender from engaging in certain activity.

Deputy J. O’Keeffe

It prohibits a person from being within a certain distance of a school, for example.

Detective Chief Superintendent White

Yes.

Chairman

Is it possible to write to the committee with the details?

Detective Chief Superintendent White

Yes.

Mr. Paul Murray

On a point of fact, the criminal law (trafficking of persons and sexual offences) Bill, which is being drafted, contains a provision which gives the Garda powers of arrest for breach of a requirement of the sex offenders register. It contains a further provision on post-release supervision which empowers the probation and welfare service to prosecute for breach of any of its conditions, which should make it easier to bring prosecutions to court.

Deputy J. O’Keeffe

Is that section 33?

Mr. Murray

It is section 30-something.

Deputy J. O’Keeffe

The probation and welfare service could bring the charges itself.

Mr. Murray

Yes. The service is responsible for supervision and knows when a person is in breach of any condition.

Deputy J. O’Keeffe

Is it currently the case that the service cannot prosecute?

Mr. Murray

Yes. We will provide the service with that power in the Bill.

Chairman

While the heads of the Bill have been approved by the Government, is there a timeframe for the introduction of its provisions?

Mr. Murray

The Bill is being drafted and we have a notional timescale. However, I use the word "notional" because once the Bill leaves the Department and goes to the Parliamentary Counsel, we lose direct control of the schedule. We hope to publish the Bill before Christmas and have it enacted before next June. However, the significant caveat is that if the committee conceives extensive recommendations, the Bill would be the ideal vehicle to take them on board. While I do not wish to stray into policy, there could be further changes. If further recommendations or submissions are made to the Department on the operation of the register or more initiatives come from the background work in Europe on the exchange of information, they may also be taken on board.

Deputy Howlin

Does the Oireachtas itself even have a view?

Mr. Murray

Through the committee here, yes. I would not like to give a definitive timescale. I suspect the matter may drag on if various submissions must be taken on board to create a fully comprehensive Act. While the Act is comprehensive as it is, there is scope for further amendment.

Chairman

We appreciate Mr. Murray's assistance. Can Inspector Burke set out the number of people employed in the unit in Thurles? If I were to submit an application on a person in the morning, how long would it take to get a full response?

Inspector Burke

The joint staff for the Garda criminal records office and the Garda central vetting unit includes me, three sergeants and 33 civilian personnel. My turnaround time currently on applications is four and a half weeks. When I left the office this morning, my staff were processing applications which were made on 10 and 11 September, which was four and a half weeks ago. It is a growth area at which the Garda Commissioner will be looking. We will probably look for more staff as we grow and take on more organisations.

Deputy Howlin

I want to look at a different area. We need to consider this on an all-Ireland basis. Detective Chief Superintendent White referred to his discussions on the matter in Northern Ireland. I accept there are legislative difficulties. The committee has received a submission from the Northern Ireland Human Rights Commission calling for the maximum harmonisation of monitoring systems. Is this issue receiving active consideration? Detective Chief Superintendent White indicated work was being undertaken in that regard. How close is the Garda Síochána to providing for a dovetailed system on an all-Ireland basis? It is important that this be done.

An issue which has caused great concern concerns the vetting unit which deals in the main with criminal convictions or, interestingly as I recently heard for the first time, pending criminal cases. The Pre-Employment Consultancy Service in Northern Ireland which operates through the health service compiles lists of persons deemed unsuitable to work in the health care sector or with children. Has the National Bureau of Criminal Investigation received requests to assist in this area? Should the committee take a look at this issue? I do not suppose the detective chief superintendent is in a position to comment on whether we should go down that road in terms of our constitutional or legal provisions bearing in mind the recently published Privacy Bill 2006.

Inspector Burke

I agree with the Deputy. I, too, have heard discussion on this issue. It is a constitutional issue, not one on which I should comment. In fairness, it is an not an issue that arises often during my meetings with various organisations.

Deputy Howlin

The following question may be entirely subjective and the inspector can refuse to answer it if he so wishes. Is checking somebody's criminal record enough? It is worth noting that people who come to the attention of the Garda central vetting unit are rarely convicted. While it may not be possible to construct an alert system, given our constitutional rights and privacy law, is it an issue of concern to the Garda to which we should be alerted?

Inspector Burke

I believe new legislation on Garda vetting is being drafted. I am led to believe it will cover issues such as soft intelligence as referred to by the Deputy. However, I do not know when it is likely to come on stream.

Deputy Howlin

Perhaps Mr. Murray could answer that question.

Deputy J. O’Keeffe

The issue is dealt with in the hand-out we received. The question may be more relevant to departmental officials. Is legislation proposed in regard to soft intelligence?

Deputy B. Lenihan

Members are aware that it is Ministers and Ministers of State, rather than departmental officials, who respond to questions at joint committee meetings.

Deputy Howlin

I directed the question to the Minister and the civil servant volunteered the response.

Deputy B. Lenihan

Fair enough. Members should not conduct an Order of Business type discussion at this committee.

Chairman

Mr. Murray volunteered to clarify the matter.

Deputy B. Lenihan

I know. I am not criticising Mr. Murray who was not present during the private session when this issue was discussed.

Chairman

A question was asked and Mr. Murray volunteered to respond to it.

Deputy B. Lenihan

Fair enough. However, members are now asking about proposed legislation. I am happy to deal with that question.

Chairman

We will deal with it when we come to it.

Deputy J. O’Keeffe

Given that the Minister of State is present, perhaps he might deal with it now.

Deputy B. Lenihan

There is a proposal before the Houses on the drafting of a Bill dealing with the power of arrest, as raised by the officers. On the wider question of soft intelligence——

Deputy Howlin

Have the heads of the Bill been circulated to the committee?

Deputy B. Lenihan

Yes.

Deputy Howlin

Then it is not a matter of secrecy.

Deputy B. Lenihan

I am not suggesting it is. However, the impression might have been created that because of a request——

Deputy Howlin

The Minister of State seems agitated.

Deputy B. Lenihan

I am not; I have just walked down the staircase.

Deputy Howlin

It is a matter of fitness.

Deputy B. Lenihan

Exactly. The suggestion might be made that the matter is not being acted upon when it is.

On the wider question of soft information, the vetting unit is in the process of extending vetting to all categories of persons who have unsupervised access to children. The programme will take substantial time to complete. Members will be aware that it was extended in September to new entrants to the education sector. Vetting will be extended on a sector by sector basis to all categories of persons who have substantial unsupervised access to children.

Deputy J. O’Keeffe

What timeframe is involved?

Deputy B. Lenihan

We are looking at a time limit of up to two years to complete the process. The issue of soft information can to some extent be addressed by practice in this sense: traditionally vetting has covered only the issue of clearance from criminal conviction. However, the forms used in the education sector, for example, to which vetting was extended in September, require the applicant to also consent to the furnishing of further information on whether he or she has come to the attention of the courts and, for example, been acquitted.

The wider question of soft information raises a host of issues which, again, I have no difficulty in discussing with the committee at a suitable location. Briefly, the report on vetting prepared within the Department of Justice, Equality and Law Reform recommended that the matter be examined by the Attorney General and the Department. That examination is under way. The most obvious examples of soft information would be instances where people come to the attention of their employer through their employment history. Such issues are being examined in the Department of Health and Children. While there are such registers in England and Northern Ireland, they are not in place in this jurisdiction. There are constitutional complications in regard to the protection of the good name of the citizen, the reason the issue has been raised with the Attorney General. There is no doubt a legislative scheme would be required to provide for the giving of such information. The preliminary view we have obtained is that it would not be possible to compile such a register in this jurisdiction without affording a person placed on it the opportunity of vindicating his or her reputation or correcting the register. As I understand it, such information lists have been compiled in other jurisdictions without statutory foundation. However, they now have some form of statutory foundation in the United Kingdom. For us to do this would require a more detailed statutory foundation.

Deputy Howlin

The Privacy Bill may impact on the matter.

Deputy B. Lenihan

There is no direct relationship between the two.

Deputy Howlin

Has the matter been considered?

Deputy B. Lenihan

For the sake of completeness, to use the famous phrase used recently, I have also been in discussions with my counterpart in Northern Ireland about these matters. We hosted a cross-Border conference in early September to examine the practical implications of the issues involved. We have also discussed the matter with the Northern Ireland authorities from which we have received excellent co-operation, far more satisfactory co-operation than in relation to the United Kingdom authorities in regard to the operation of the vetting unit. The compilation of soft information will require to be done on a legislative basis.

An issue relating to hard information that will also require to be addressed in legislative terms is that the legal basis for our compilation of hard information predates the foundation of the State. There is clearly a need to revise the legislative and common law principles that underpin that operation.

Deputy J. O’Keeffe

As I understand it, current vetting procedures require that all prosecutions, successful, pending or completed, be disclosed. If the current arrangement permits the disclosure of prosecutions pending on the principle that one is innocent until proven guilty, how does that differ from the situation in regard to soft information? Is this okay?

Deputy B. Lenihan

We are satisfied, on the basis of the legal advice we have received, that it is okay. This relates to Garda maintenance of records in the criminal justice system. However, different considerations arise when one moves outside the criminal justice system.

Chairman

I thank the Minister of State for his reply. I remind members that we are also dealing during this module with the taking of statements from child witnesses, on which members may put questions to the Garda representatives.

Deputy Howlin

I will direct my questions to the Minister of State. Under section 16(1)(b) of the Criminal Evidence Act 1992, a number of Garda stations in Longford, Nenagh, Cork and Dublin are equipped for the video-recording of evidence. When will the commencement order be signed to ensure that very useful device can be used? Is that number and spread of Garda stations sufficient or is it intended to extend the facility more widely?

Deputy B. Lenihan

The question was raised earlier. I asked for a brief to be compiled on the matter. I do not have the information to hand.

Deputy Howlin

Will it be routinely incorporated into all new courts buildings?

Deputy B. Lenihan

I do not have that information to hand. The section relates to enabling a child to give evidence-in-chief, in other words, to rehearse his or her story in front of a video camera. A recording can then be prepared and presented as evidence in court. The section permits this to happen but the compilation requires the drawing up of a detailed protocol and guideline between the Health Service Executive, social workers and the Garda Síochána. I believe nobody here is material to that issue but there has been considerable difficulty in finalising the protocol. That is the cause of the delay.

Deputy Howlin

I do not intend to criticise. This spans all Governments over 14 years. If there is an impediment, we should know about it.

Deputy B. Lenihan

I agree. In the course of the debate on the Bill in the Dáil in the summer the Minister for Justice, Equality and Law Reform, the then Tánaiste and I raised the matter with the relevant authorities in the HSE and the Garda Síochána and were assured that matters would be finalised expeditiously. I will be delighted to furnish a report on the matter to the committee at the next meeting.

Deputy Howlin

The committee might ask the representatives from the Garda Síochána who are present to bring the matter back to the Commissioner and if there is a particular difficulty of which the Garda is aware, it might alert the committee to it in order that we will have all views on the matter and bring it to a conclusion.

Deputy B. Lenihan

I agree.

Senator Terry

What will happen to the tapes when a case is completed? Will they be destroyed or handed to the family? Who will have ownership of them, or will they be destroyed after a certain time?

Detective Chief Superintendent White

In respect of the video-recording of interviews, there is one master tape which is sealed and retained. There is a working tape which is retained by the Garda Síochána.

Senator Terry

For how long is it retained?

Detective Chief Superintendent White

It is for the preparation of the file. A copy of the tape is also made available to the accused if he or she wishes to have one.

Senator Terry

What is the position in respect of destroying the tape?

Detective Superintendent Fitzpatrick

The master tape is never destroyed, certainly not in the lifetime of a specific case. It goes into storage.

Senator Terry

Who has access to tapes?

Deputy B. Lenihan

We are talking about tape recordings of interviews of suspects generally, not of child witnesses.

Senator Terry

Of child witnesses.

Deputy B. Lenihan

No; that is not what is under discussion. I felt the Senator should understand that point.

Chairman

The Senator is talking about court cases.

Senator Terry

Yes.

Detective Chief Superintendent White

I do not know what the position is in respect of child interviews.

Senator Terry

In respect of a child being taped——

Deputy B. Lenihan

The Garda representatives were replying to questions on the general point of video recordings being extended to all Garda interviews. It is a different issue. I do not think they are aware of the position on video-recorded evidence generated in court.

Detective Superintendent Fitzpatrick

The only time that would apply is where a child suspect is suspected of having committed a crime.

Deputy B. Lenihan

That is not cross-examination in court.

Deputy Howlin

The issue I raised is that it has not been brought into operation. Therefore, there are no such tapes. May I ask about a different issue, for completeness, to rehearse an abused phrase?

Chairman

Yes.

Deputy Howlin

The Garda submission referred to one operational matter that it wanted to bring to the attention of the committee. It relates to a situation where parents of an infant were suspected of having physically abused the child but access to the child's medical records was denied because parental consent was needed. This is perverse. It is something we should note and address legislatively to ensure medical records will be available to an investigating authority where there are allegations of parental abuse of children. I do not know whether the Garda representatives want to make any observation on the matter.

Chairman

I do not think that requires a response from the Garda representatives.

Deputy Howlin

It was mentioned in the Garda submission to the committee.

Chairman

If any of the issues raised today require clarification, or if the Garda would like to clarify them, in addition to the specific issues on which we have requested clarification, we would be more than happy to receive it.

I thank the Garda representatives for attending. The discussion was extremely helpful and gave rise to new information of which we were not in possession at the beginning of our deliberations. We very much appreciate this and it will certainly inform our recommendations in due course.

The joint committee went into private session at 8 p.m. and adjourned at 8.20 p.m. until 5.30 p.m. on Tuesday, 17 October 2006.