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JOINT COMMITTEE ON THE CONSTITUTIONAL AMENDMENT ON CHILDREN debate -
Wednesday, 5 Nov 2008

Constitutional Amendment: Discussion.

I welcome Mr. Tom O'Malley to this meeting and thank him for sending his submission in advance, which all committee members have received and I am sure, perused carefully. The procedure generally is that the witness gives an opening presentation, based on his or her submission and then takes questions from the floor.

Mr. Tom O’Malley

Thank you for the invitation to appear before the committee. Obviously, what the committee is dealing with is quite a complex issue, arising from the Supreme Court decision in the C case. The various options for reform have been fairly well canvassed, to some extent, over the past two years or so. My basic message is that we should aim for a just system of child protection, with the emphasis on "just".

There has been a good deal of talk over the past two years about the notion of introducing something like total child protection or a complete system of child protection, by which people very often mean reintroducing a system of strict liability of the type that was struck down by the Supreme Court in the C case. The irony is that we had a kind of "total protection", as it is called, for the period 1935 to 2006 and yet, we also know, tragically, that it did not, in fact, protect children from being abused. The Supreme Court struck down that section of the 1935 Act because it found that it conflicted with fundamental principles of justice. The big question for Members of the Oireachtas now is whether they should invite the people to reinstate in the Constitution a similar provision, imposing strict or absolute liability, despite the fact that the previous one was quite logically struck down by the Supreme Court on the basis that it conflicted with fundamental principles of justice. It is possible to find a way forward that would accommodate a "just" system, that is, just from the point of view of people who might be accused, with an effective system of child protection. We should bear in mind the function of a constitution in a society and legal system such as ours. One of the major functions of our Constitution is to give expression to fundamental values. We must be careful about turning the Constitution into a criminal code given the lessons learned from our experience of the 1983 abortion referendum. I do not want to discuss the details of the amendment which we put into the Constitution in 1983 other than to note that we do not understand what many parts would mean in specific circumstances. One of the reasons this has not caused significant problems is that we have in a sense been able to export the underlying problem. However, we cannot export child protection problems. Therefore, if we now amend the Constitution in regard to unlawful carnal knowledge or any of the other major issues that have arisen, the provision would be used on a daily basis in the courts and may turn out to have a meaning not anticipated by those who enacted it, namely, the people. Once that happens, we will face a difficulty that is virtually impossible to cure.

The great advantage of legislation is that it grants a flexibility denied to constitutional provisions. If proof of that be required, within a matter of months of the enactment of the Criminal Law (Sexual Offences) Act 2006, which admittedly had to be addressed with urgency in the wake of the C case, it proved necessary to introduce substantial amendments through the Criminal Law (Sexual Offences)(Amendment) Act 2007. If the earlier Act had been a constitutional amendment instead of legislation, we would have encountered serious difficulties in amending it. The same would apply to most other areas of the law relating to children.

I would argue that we do not need a constitutional amendment at present. A telling passage towards the end of the Supreme Court's unanimous judgment on the CC case states that more than one kind of unlawful carnal law would pass constitutional muster. We must recall that what the Supreme Court found wrong with the Criminal Law (Amendment) Act 1935 was its failure to provide any provision for a mistake as to age. Irrespective of how genuine was the accused male's mistake regarding the female's age and even if he had asked her age and was told a lie, he was still guilty. If he had her swear to her age before a commissioner of oaths, he was still guilty if it transpired as a matter of fact that she was under the age of 17. That meant a person could be convicted of a serious criminal offence which carries a maximum of life imprisonment even though he was not morally culpable for the crime. In other words, it did not matter that the accused might have genuinely engaged in the behaviour in question under a genuine misapprehension. That was what the Supreme Court found unjust to the point of unconstitutionality. As it would be unjust of us as a society to reinstate that in the Constitution, we must try to find a new provision that will be effective as well as just in protecting children from sexual abuse.

I make a further point that has not received the attention it deserves. What we used to call unlawful carnal knowledge offences are situations of sexual intercourse between a male and a female where it was not alleged that the female was not consenting. It was alleged that she was too young to consent in law. We must remember that the C case did not remotely disturb the existing law in areas such as rape, sexual assault, aggravated sexual assault or incest. If there is an absence of consent on the part of the female in question and if the male is either aware that she does not consent or is reckless in that regard, he is guilty of rape. That applies irrespective of whether the male or the female is 13 or 73 years old. There are no age limits on rape. The law on rape was not affected by the CC case and other offences can also brought into play based on a lack of consent. Unlawful carnal knowledge is, therefore, only suitable in the event that intercourse takes place with a young woman who factually consents, or at least where there is no evidence that she does not consent but is too young in law to consent legally. That is the scenario we are discussing.

It is sometimes pointed out by proponents of the 1935 Act that it was a handy way of prosecuting a man who engaged in sexual activity with girls under the age of 17 because, even if he was aware the girl did not consent, he could be charged with unlawful carnal knowledge. Since all that had to be proved was that intercourse took place, there was no need for cross-examination of the girl regarding whether she consented. I regard that approach as faulty because it meant that many people who committed rape were getting away with the lesser offence of unlawful carnal knowledge. I do not know whether that was preferable as a matter of policy but it certainly meant that people were often under convicted and under sentenced because unlawful carnal knowledge almost invariably carried a lesser sentence to rape.

I will conclude by making proposals in this regard. I have raised on several occasions over the past year the possibility that reintroducing some form of strict liability would be compatible with the European Convention on Human Rights. It now appears that would be the case in light of a decision given in June 2008 by the UK House of Lords regarding a similar provision to our 1935 Act on sexual intercourse with a girl under the age of 13. There was no provision for mistake as to age but it was held that this would probably be compatible with the convention. Obviously, the ultimate interpreter of that convention is the European Court of Human Rights but, as it has never addressed the issue, the decision of the House of Lords is persuasive.

In regard to our options for reform, one of the difficulties of the debate has been that when people advocate the reinstatement of some kind of strict liability for unlawful carnal knowledge, they do not always clarify what they mean by this. I would suggest on the good authority of the former Chief Justice, Mr. Ronan Keane, that an important distinction can be made between absolute liability and strict liability. Absolute liability allows for no defence whatsoever. In other words, once a person commits the act involved, his or her intention does not matter. As we put it in law, there is no need for mens rea — once one commits the act, one is guilty. It is often used in environmental, planning or public health offences where prosecutions would be impossible if intent had to be proved.

I suggest that strict liability can be treated as something different in legislation. Strict liability means that a person is guilty upon committing the act, but has an opportunity to show that he or she exercised as much care and diligence as he or she possibly could to avoid liability. Transferred into an unlawful carnal knowledge situation, that would mean that once the fact of intercourse had been proved, the person was prima facie guilty of the offence, but, unlike under the 1935 Act, the onus could be transferred on to that person to show he or she took all the necessary steps in the circumstances to ascertain the age of the person in question. In light of what the Supreme Court said towards the end of its judgment in the C case, there is a possibility that this latter form of strict liability, which has the saving clause attached to it, might pass constitutional muster at least in respect of the sexual abuse of girls and boys below a certain age. I do not know what age that might be, maybe 13 or 14. It would be a legitimate and, probably, proportionate response to that serious problem.

Another possibility that would be less onerous on accused persons but still could prevent people getting unmeritorious acquittals, would be to change, even in marginal terms, the existing law under the 2006 Act. Under this Act a person must be acquitted unless it is proved that he or she honestly believed the young person in question was below the specified age. I seen no reason we could not transfer that into an objective test so that a person may not be acquitted unless he or she honestly and reasonably believed the young person was above the specified age. The person would not escape conviction unless the jury was satisfied not only that the person believed, but that it was reasonable to do so. That is an objective test. I see nothing unconstitutional about it and we are dealing with a serious issue. When we discuss what would be reasonable in the circumstances we talk about a situation whereby the reasonableness of the belief the person had would be judged in accordance with his or her age, level of maturity and characteristics. It would save us from a situation whereby all a person had to do was to say he or she thought the young person was over 17, or whatever. It would have to be shown that the person held that belief on reasonable grounds. Those are two possibilities, strict liability and the more mitigated fashion, which could be constitutionally acceptable for quite young people. Either instead of that or in addition to it, in the case of sexual intercourse in the mid to late teenage years, under 17, we could have the provision of an honest and reasonable belief.

There are two matters I have not addressed in the paper. I addressed the upper age of consent slightly in paragraph 19, but not the question of what the age might be. I fail to get exercised by this matter because whenever one discusses age, whether the age of criminal responsibility or consent, one is obviously always talking about the chronological or physical age of the person. Discussing people in the teenage years is not always very important in the sense that people can mature at vastly different rates. Some are far more street-wise at 13 than others are at 18. As long as the age of consent is not unreasonably high or low, the more important question is in what circumstances a person should be guilty of unlawful carnal knowledge in terms of the mental element involved.

I have not mentioned the so-called gender disparity in the Act, because I could say anything useful about it. It is not easy to see a solution to that problem whereby a girl under the age of 17 is exempt from criminal liability if she has intercourse with a male, even though he is guilty even if he is under 17. Two obvious alternatives come to mind: to make both liable or to make neither liable. I cannot see the first working. It would be a very bad policy to make both girls and boys liable if they were both consenting. In many cases girls who had been genuinely abused or exploited might be afraid to report the matter to the Garda for fear that they might be prosecuted, although that might not be a legitimate fear. That would be a very bad idea.

The difficulty about exonerating both is that it would lead to a difficult situation if a 16 and a half year old boy had sexual relations with a 12 year old girl. Since they are both under 17 the boy could not be prosecuted. That would not be a very acceptable state of affairs. I gather there may be some constitutional challenge to that and it may shed some light on the problem. There is nothing inherently wrong with the gender discrimination as long as it serves a valid social purpose. It may have to be fine-tuned in time but I do not see it as the major issue. That is all I can usefully say. It is just a brief summary of the paper, so there might be questions.

We will throw it open to the committee.

I thank Mr. O'Malley for his presentation and I apologise for being a few minutes late. I read the paper, which he kindly supplied in advance of the meeting. I have great admiration for Mr. O'Malley's writings and academic book work in this area. It is extraordinarily valuable and I appreciate his presentation. However, I seek some clarity on what he says because I am concerned about some aspects of it and some possible confusion coming back to the terminology between strict and absolute liability. We all fall into that here because it is easy to regard the terms as interchangeable. I understand that in England there is a law of absolute liability for children under 13. They are trying to introduce a mirror image of this in Northern Ireland. Under this law there is no defence. It does not matter what anybody reasonably thought. If a person has sexual intercourse with somebody under 13 there is absolute liability. Between 13 and 16 it can fall into the range of what we describe as strict liability and the reasonableness test comes into play.

I take Mr. O'Malley's point that the view of the House of Lords on how the European convention may be applied is simply the view of the House of Lords and not of the European Court of Human Rights. However the view of the House of Lords on the case in the summer was that it is compatible with the convention to have a law of absolute liability for children under 13 and that this is not contrary to the human rights provisions contained in it, which we have discussed. The age picked, whether it is 13, 14, 15 is somewhat arbitrary and one could produce good and sound reasons the age for a law of absolute liability should be 12, 13 or 14. Any arguments against could be equally persuasive and ultimately a subjective judgment is made. My starting point is to take the view, in so far as the English judgment is a precedent, that within the confines of the European convention it is compatible to have a law of absolute liability where the objective is child protection. That is an important starting point in the context of how we consider this in this committee.

A couple of areas are somewhat confusing in the presentation. I refer the witness to the paragraph 21, which states "One possible strategy therefore might be to have strict, as opposed to absolute liability in respect of offences involving children in the younger age group, say under 13, and a defence of honest and reasonable mistake in respect of offences involving those between that age and the age of 17 years." If the mistake is to be reasonable, I assume Mr. O'Malley is suggesting an objective rather than subjective standard of reasonability.

Mr. Tom O’Malley

Yes.

In that case what is being suggested here is what we would regard as strict liability. If it is to be an objective standard of reasonableness between the ages suggested, 13 to 17, it is essentially strict liability. It seems that in the last paragraph, nothing different is being suggested for those under 13 to the 13 to 17 age group. In both contexts, strict liability is being suggested. The witness might clarify that.

I have two other points before Mr. O'Malley replies. It seems there is confusion as to what exactly he suggests. In the paper, paragraph 19 states "society is perfectly justified in taking the view that children under a particular age, say 13 years for the sake of argument, should in their own interests be protected from sexual exploitation in the strongest possible terms". Mr. O'Malley refers to how those under 13 can appear older, which everyone understands. He says this is an area where it would probably be "constitutionally permissible to have an offence of strict as opposed to absolute liability". He goes on to state "In other words, an accused person would be found guilty as soon as it was established that the act of intercourse took place".

I will stop there, although I know the sentence continues. If we were to simply say an accused person is found guilty because an act of intercourse took place, that is absolute liability. I understand Mr. O'Malley goes on to qualify that but the qualification seems to mean that if somebody is under 13 and an older person has intercourse with him or her, the person will not be found guilty if there was a genuine mistake or some form of due diligence.

Due diligence presumably means the person checked whether someone was over age. If the person checked someone was over age, I presume if he or she had intercourse, he or she genuinely believed the person in question was over age because of the act of checking. That would not be credible unless a person genuinely and reasonably believed the young person to be over age. If, for example, I had sexual intercourse with someone under 13 and I asked a series of questions leading to answers making it blindingly obvious the young person was not over 13, I could not raise that defence later in practical terms.

What I am trying to say, perhaps too loquaciously, is that paragraph 19 again seems to suggest that Mr. O'Malley is not ultimately saying anything very different for those under 13 compared to those under 17. There might be a slight difference in language but it is all the same in the end. It is a suggestion there should not be absolute liability and instead, there should be some form of strict liability based on reasonableness.

I suggest adding the word "genuinely" does not add much. It would be very difficult to raise a defence that a person reasonably believed rather than genuinely believed.

Mr. Tom O’Malley

I accept that.

To encapsulate my comments, Mr. O'Malley is saying it is reasonable to have laws in place for child protection and it is not unreasonable to have an absolute liability law for those under 13. The House of Lords has held it is not contrary to the European Convention but in the view of the witness it would be preferable that there would be some form of defence based on mistake with regard to age, and that might be a more objective defence than the current subjective defence. The overriding objective of the witness is to ensure somebody — coming back to paragraph 16 — who is not "morally culpable" is not convicted.

Ultimately, in using the constitutional phraseology, we must decide on the hierarchy of protection. What are the witness's views on this? I suggest that in working out a constitutional concept of a hierarchy of rights, the top should be the protection of vulnerable children. I also suggest that if vulnerable children are to be protected, it is not unjust to require persons who want to engage in sexual intercourse to make absolutely certain the people they are having sexual intercourse with have attained an appropriate age as prescribed by law. It should be an age which society, in legislation, regards as the age a person should reach before he or she is truly regarded as having the capacity to consent. Persons who do not make absolutely certain the person they are having intercourse with has reached that age should have moral culpability. The witness's concept of moral culpability does not address that. I would be interested in Mr. O'Malley's response.

I am sure Deputy Shatter's question will not be difficult for Mr. O'Malley but it strikes at many of the aspects we have considered, so perhaps he would like to take it now.

Mr. Tom O’Malley

I will take the earlier point first regarding the distinction drawn by Deputy Shatter. I agree with much of what he says in that there is not a great difference between strict liability, as some would interpret it, and the honest and reasonable mistake. It would be largely a question of the burden of proof. In other words, if there was a strict liability approach, the prosecution would bear the burden of proving the act took place; the accused could escape liability but the burden of proof would shift to him or her, which is constitutionally possible, to prove the person had taken the appropriate steps to ascertain age or whatever reasonable steps were necessary.

If the position is that a person is only guilty if he or she honestly and reasonably believed the person to be older than a certain age, the prosecution bears the burden of proving all this. It must prove the person had intercourse with the young person in question; that the person did so intentionally; that the person did so knowing the person in question was under an age and so on.

I used such phrases but I would not have strong views on either of them. I agree with Deputy Shatter in that I do not suppose that if they are interpreted in good faith, strict liability as I suggest it and the reasonable mistake approach would have radically different results in any case. It would very often give rise to pretty similar results. The strict liability approach would put a heavier burden on the accused to show the person should be exonerated, rather than putting it directly on the prosecution.

With regard to the latter question of the hierarchy of protection, it is certainly a matter of social values and so forth. Something which must be included in the equation of the hierarchy of constitutional rights is the right of a person to a fair trial. The Supreme Court has said more than once that when that right conflicts with other more general values, the right of the accused person to a fair trial has to prevail. That has been said repeatedly by the Supreme Court in cases of delayed prosecution and so on. However, the fundamental question being asked by Deputy Shatter was whether it was not reasonable to require a person to be absolutely certain of the age of the young person in question. Well, if that was feasible, yes, but what steps can they take to be absolutely certain about the age of the person in question if we go down the route I suggest, of saying they must take reasonable steps, where the issue of what is reasonable would depend very much on the circumstances? That is as far as we can go. After all, we may be talking about a circumstance in which two 16 year olds meet after a party or something similar and one of them, for the sake of argument, says she is over 17, yet in this case the male party could be guilty of a very serious offence, carrying up to five or ten years' imprisonment, because he did not make absolutely certain, whatever that is supposed to mean. We must accept that the protection of children — all children, not just vulnerable ones — is a very important social value, the protection of the right to a fair trial is also an important social value, and protection from being convicted of an offence one did not genuinely commit is another important social value. I am talking about trying to achieve a balance among those things.

I thank Mr. O'Malley for coming to the committee to give his presentation. I do not necessarily want to repeat everything Deputy Shatter said but I want to continue with the point he makes. I accept the Mr. O'Malley's point that everybody has the right to a fair trial. The concern we have as legislators is to balance rights with responsibilities in a way that will ensure ultimate protection for children. As a legislator I have no difficulty in sending a clear message to any adult who opts to engage in this activity — it is an optional activity, rather than one we impose on our citizens or make compulsory — that they have an absolute responsibility to determine the age of their partner. That is quite reasonable. What are Mr. O'Malley's thoughts on the role played by adult responsibility and how this can be balanced with rights? We accept that people have rights but we also need to be clear about the responsibilities of our citizens.

Does Mr. O'Malley have any thoughts on absolute liability for people in positions of authority? Mr. O'Malley mentioned in the course of his presentation that where a rape had taken place there was a tendency on occasion to fall back on a charge of unlawful carnal knowledge, which could result in under-charging and under-sentencing, and he felt this was perhaps not appropriate. My understanding, however, is that generally this occurs in the absence of sufficient evidence or where the bar, in terms of the evidence required for a charge of rape, is set quite high although it is very apparent that the victim was under age. Rather than thinking of it in terms of under-charging and under-sentencing, it could be viewed as at least giving the individual a conviction where otherwise there would be no conviction because it is not possible to obtain the evidence required for rape.

Mr. Tom O’Malley

The Senator mentioned sending out a clear message to adults. She assumes that the majority of people who have sexual relations with under-age girls, let us say — although it could be under-age people of either sex — are adults. However, I would say the vast majority are of the same age as the girl herself.

We saw some interesting statistics at one of our most recent meetings that showed that in the vast majority of cases there was a considerable age gap between the victim and his or her partner. This came as a shock to us all.

Mr. Tom O’Malley

The Senator is talking about prosecutions.

Another thing Mr. O'Malley should know, in fairness, is that since we started this conversation some months ago one of the things on which the committee has agreed, whatever we end up doing — although we have not reached any final conclusions on anything — is that there should be a provision in whatever law is enacted to ensure that persons of proximate age engaged in sexual relations in a consensual situation — where there is duress it is a different circumstance — should not be subject to criminal law. I am sorry to interrupt Mr. O'Malley to say this, but——

We are all in agreement on that.

We are conscious that criminal law does not have a role to play in the case of two 15 year olds or a 16 year old and a 15 year old who have engaged in sexual relations. If their families disapprove or society disapproves there are better ways of dealing with it than the blunt instrument of criminal law. Whatever comes out of this committee will certainly contain a provision to ensure that teenagers of proximate age do not find themselves prosecuted before the courts, unless a prosecution for rape is warranted.

Mr. Tom O’Malley

I am certainly glad to hear that.

Let us return to Senator Corrigan's point.

The information we have been given indicates that the average age of the accused is just under 29.

Mr. Tom O’Malley

I have seen those statistics presented on a previous occasion elsewhere, or heard of them at least. I accept them fully. However, these are matters that went through the prosecution system. As far as we are aware this does not reflect behaviour in society. To take an example, if we consider the number of teenage pregnancies compared to the number of prosecutions, it is quite clear that the number of cases of sexual intercourse with under-age girls that result in prosecution is a very small fraction of the total.

I take the Senator's point, because it is still a serious matter if a significant number of people are being prosecuted, probably quite justly, for having intercourse with young girls who are sometimes half their age. I have no difficulty about taking a very strong view on that. The problem is that there will be cases in which the man is 21 and the woman is 16 and a half, or he is 19. It is when you get down to the borderline cases that difficulties arise. I would certainly have no difficulty with imposing strict liability in those circumstances. Whatever about absolute liability, I would have no difficulty with strict liability, because we must remember that these cases are ultimately tried by juries, which consist of 12 ordinary sensible people, and they will not be easily swayed by a throwaway remark such as "I thought she was 16". We have to trust the jury system and believe that juries will not be codded into thinking that people believed genuinely or even reasonably that someone was over age. Just to clarify, I have no difficulty about strict liability where there is a significant age gap.

I had picked that up from Mr. O'Malley's presentation. However, it does not address for me the issue of very young children or the role of responsibility. We have a duty to send out a message to our citizens. Will Mr. O'Malley reply to the other two questions I asked? I asked about two matters, one regarding absolute liability for people in positions of authority, the other concerning the comment on the other charge.

Mr. Tom O’Malley

In the majority of cases, people in authority are a bit like the parent. I refer to teachers and other kinds of people. I would not see, in practice, a great deal of difference between absolute liability and strict liability because a person in authority could hardly escape knowing the age of the person in question.

In another forum, a person made the point that one might have a child who was away at a summer camp or in the Gaeltacht where the person in authority would not really know the child very well. Let us say an episode concerning the child took place on the first day. That could be a difficulty but I would say that for the most part, whether one applies absolute liability or strict liability, there probably would not be a great injustice. I would prefer to have strict liability because it would cater for the exceptional case. Again it must be remembered that strict liability imposes an obligation on the accused to show that he or she did not know, and 99.9% of persons in authority would have grave difficulty in showing that. It would be virtually impossible. Therefore, I would think it would not make a great deal of difference. My preference would be for strict liability to deal with the very exceptional case where an injustice might arise.

Senator Corrigan's final question related to responsibility in general, or to the concept of——

I passed a comment about the undercharge and undersentence.

Mr. Tom O’Malley

The point the Senator makes certainly is valid but in the aftermath of the C case people said there was the advantage that when the mistake relates to age, or when consent is not an issue, the complainant does not have to be put through cross-examination. That in itself would be a bad reason for retaining the existing law. The reality nowadays is that it is not or should not be quite as traumatic as it was in the past for people to give evidence, even as young witnesses. There is still much to be done in that regard but the argument is in favour of removing the absolute liability we had under the 1935 Act and replacing it with something a little more flexible. I would not be swayed by the argument I made about rape being undercharged and so on.

I return to a point made by Deputy Shatter, who contextualised one of his questions to Mr. O'Malley in respect of a hierarchy of rights, namely, seeking to put different rights into the balance and weighing them, as it were. It is fair to say that throughout all our deliberations the members of the committee have been in agreement that the two basic principal rights at stake here are, on the one hand, the protection of children, to include, as Mr. O'Malley said, all children and not merely vulnerable children, and on the other hand, the right to a fair trial. Every member of the committee accepts that both those important and sacred principles must be very much at the heart of our conclusions when we reach them.

The question is how we weigh each, what weight we give to them, in what circumstances one should give way to the other and how we should set that out. It is a complex exercise for us. I believe we all accept and recognise the complexity and realise that the law is not merely about sending out a message. I do not wish to denigrate that point in any sense but if it were only about sending out signals, we would not have been holding meetings in this room for the past year. There are complexities associated with it.

What I wish to ask comes to the heart of what we are struggling with in our work here. Mr. O'Malley stated the following in paragraph (20)(c) of his conclusion and I have considerable sympathy with it and am largely in agreement:

In terms of whether a requirement that a mistake be reasonable as well as honest would be constitutionally acceptable, it can be argued that in light of the important social value at stake — the protection of children from sexual exploitation — the introduction of an objective element would be a proportionate response.

Perhaps Mr. O'Malley might elaborate a little on that for the following reason. It has been strongly suggested to the committee that a proposal that required proof up to that objective standard from an accused person of reasonable grounds for his belief as to age would have some constitutional uncertainty associated with it. The point was elucidated very clearly to us that there is at least an uncertainty with that, in respect of a departure from what we understand to be the principle of guilt in criminal law and the subjective versus the objective. This comes to the nub of where we are now and whether the sort of regime we all look for would in fact require constitutional change. We are struggling with this issue. It was suggested to us in strong and compelling terms that what Mr. O'Malley states in that paragraph would be constitutionally acceptable is open to question in terms of the matters before us. Perhaps he would elaborate on that.

I have two or three other points but that is my main question and I will give Mr. O'Malley an opportunity to answer it.

We will take that question and take the others afterwards.

Mr. Tom O’Malley

Senator Alex White has raised an important question about how the two rights, namely, protecting children and having a fair trial, can to be harmonised. One way of achieving a balance is not to define either of them in such a way as to exclude the other. If one has absolute liability, there is the danger of excluding the right to a fair trial in a small number of circumstances. I do not say there would be many such circumstances.

The Senator raised an important point with regard to the reasonableness of belief and what the person would have to believe. I would be surprised, in light of the reason I have given, if in the circumstances it would turn out to be unconstitutional. For example, for quite a number of years, as members of committee may well be aware, people who were looking for reform in the area of adult rape had suggested that the definition under section 2 of the Criminal Law (Rape) Act 1981 should be altered to provide that in the case where both parties are adults, the accused man should be shown to have had a reasonable belief in the female's consent rather than merely an honest belief. I never heard it said we would need a constitutional amendment to do that.

The second point is that an element of objectivity is built into the Act as it stands. It states in the Criminal Law (Sexual Offences) Act 2006 that when there is a question whether the defendant honestly believed that at the time of the offence the child was under the age of 15, the court "shall have", rather than "may have", regard to the presence or absence of reasonable grounds for the defendant's so believing, and all other relevant circumstances. That is already built into the existing legislation. Admittedly, the test remains objective despite that. My point is that one can take the doctrine of proportionality which is widely used in this country. For example, when a question arose before the Supreme Court whether it was constitutional to restrict the right to silence because the right to silence was found to be constitutionally protected, the court ruled that it was. Certain restrictions on the right to silence are permissible because it is proportionate to the kind of social objective we are trying to achieve.

It is, likewise, a fundamental principle of interpreting the European Convention of Human Rights that restrictions on rights are all right as long as they are proportionate. I have no crystal ball that allows me to see what the Supreme Court might do in any particular case. However, if I were in the members' shoes and given the possibility of a constitutional challenge, I would try that. After all, there will be an element of experimentation involved where a number of different strategies might have to be tried.

It was a great pity that there was no remedial element to the C case judgment. The Supreme Court has struck down decisions as unconstitutional in the past and indicated what might be constitutional. Unfortunately, it did not do this in the C case, which was a pity. The committee or the Oireachtas may need to produce legislation, whether by Article 26 references or whatever, which is as sound as possible and to bear in mind it may need for it to be revisited if there is a successful challenge. Hopefully, next time there will be greater guidance from the Supreme Court on what is acceptable.

Does Senator White wish to continue?

I have a related question and a further question to ask. On the question of the constitutional amendment, there is a proposal already published and tabled before the committee. Does Mr. O'Malley have a view about the wording of it? Let us suppose the committee concludes that a constitutional change is required. The proposed constitutional amendment seems to be radical as it proposes "that no provision in the Constitution should invalidate any law providing for absolute or strict liability in respect of sexual offences against or in connection with children". This formula renders immune for all time any challenge to a measure that may be introduced by the Oireachtas. It effectively removes it completely from the constitutional realm and argues there can be nothing in the constitution which is an obstacle to this. This seems, on the face of it, to be a radical form of constitutional amendment. Does Mr. O'Malley agree with this view?

Mr. Tom O’Malley

First of all it is an enabling provision and it does not require legislation. It removes any constitutional impediment to the enactment of the most stringent and draconian laws dealing with any offence of a sexual nature against a person. Presumably, the definition of a child would be required, whether it is defined as a person under the age of 17 or 18 years of age. This could be defined by legislation later. One could define all offences as offences of absolute liability. It is difficult to be either for or against this position and it depends on the eventual legislation. A majority of people might support it. However, they would confer a very significant amount of trust and discretion on legislators to enact legislation which could be as absolute as the Criminal Law (Amendment) Act 1935.

We are struggling with the words "absolute" and "strict". There is a question mark over whether the use of the word "absolute" in the Constitution or anywhere else is helpful. Is anything absolute? Is there such a thing as absolute certainty? Mr. O'Malley referred to this earlier in discussing the due diligence test.

I refer to the weighting exercise involved in the balancing of rights and hierarchy of rights. If it were possible to reach a high level of protection for children through legislation, one could conclude it is not necessary to change the Constitution as it may be possible to deliver protection by other means. This could mean the other principle, namely, the right to a fair trial could take precedence. It may not be necessary to bring about constitutional change if it is possible to achieve the objective by other means.

I refer to page 4 of the submission dealing with other means. Mr. O'Malley refers to the rationale behind having unlawful carnal knowledge provisions and that it allows for a convenient means of prosecuting the offence of having sexual intercourse with females under the age of 17 years, even where that person may have consented. The rationale behind this argument was that because consent was not an issue, there was no need for a cross-examination of the complainant. Several witnesses have indicated to the committee the particular need to protect younger children from the rigours of cross-examination in such cases, which is a fair and compelling point. Does Mr. O'Malley have any view as to how one could deal with this? There is a closely related issue of requiring leave to cross-examine the child. Would that be a legitimate interference of the right to a fair trial? Could we require any cross-examination of children to be done through an intermediary or the judge? It may sound flippant to speak of ticking the boxes, but is it possible to tick those boxes in other ways which could achieve something substantial for us?

Mr. Tom O’Malley

It would be useful to get rid of the possibility of a child being cross-examined directly by the accused. There is a provision in English legislation to the effect that if a person is defending himself, he should not be permitted to cross-examine the complainant, especially if the complainant is his own child, niece or nephew as this could give rise to a horrific cross-examination. There should be a requirement to have a lawyer or another intermediary in place.

A great deal has changed. The Criminal Evidence Act 1992 made several useful provisions allowing for closed circuit television and to have children cross-examined through an intermediary to some extent. This can be done and attitudes have changed also. Juries are members of the public and reflect public attitudes. A defence lawyer who engages in an aggressive cross-examination of a young complainant would do a grave disservice to his client and would not do himself any favours; that is just an observation. We should constantly examine the way we treat children and vulnerable people within the criminal justice system, and there is much research done in this field. It is nearly 20 years since the Law Reform Commission published its report in this area, when relevant knowledge was only beginning to emerge. Perhaps, the time has come to re-examine the way we treat children and disabled people within the criminal justice system when they appear as witnesses and we could do much more in that regard.

I apologise for being late as I had to attend another committee. I also apologise if I repeat a question already asked. I welcome Mr. O'Malley's submission and he states that "the challenge is to devise a law that will protect children, including those in their early teenage years, from sexual exploitation, whether at the hands of their peers or older persons, without at the same time leaving persons who are devoid of moral culpability liable to criminal conviction and a consequent heavy penalty". Does Mr. O'Malley envisage any legislative provision that could do this? What is his view in the context of the Law Reform Commission's proposal of a general offence of child sexual abuse? It may be unfortunate but it is within the bounds of possibility that the committee may have to decide on the specific age or group of age specifications at the conclusion of our deliberations. Is it right to suggest that prosecutorial discretion, something we dealt with last week when the DPP came before the committee, might prove to be the best avenue to deal with those under the legal age of consent participating in peer experimentation? With all the complexities we are wrestling with it is very difficult to find a formula to fit all cases. I empathise with the general principles stated in the presentation. How would the delegation advise us on the issues I have raised?

Mr. Tom O’Malley

I wish I had the full answer to that, but I do not propose to have any or all of the answers. The Deputy raised an interesting point on prosecutorial discretion and sentencing discretion, that if someone is convicted — which arose in some English cases — and there is a doubt over moral culpability, that can be reflected in sentencing. I do not believe in that approach. If a person should not be prosecuted or found guilty of an offence he or she should not have face the possibility of prosecution to begin with.

I have great respect for the office of the DPP, but one development that has occurred in recent years is the notion of prosecution decisions being reviewed. There have been several cases where people have been told they would not be prosecuted, and then the decision is changed because pressure has come from injured parties to prosecute. It is similar to victim impact statements and sentencing, in that the pressure brought for a prosecution depends on who the injured party has to speak for them. Some people are lucky and have very strong support from their family; others may have no support at all, and be heavily victimised. Prosecution discretion has a huge role to play in the criminal justice system, but it is not the answer to this problem. It would be better if the Oireachtas tries, assuming it does not have an amendment, to set out the law as clearly as it possibly can.

The reason I advocate a measure of flexibility is that one of the great works on criminal justice written in the last 50 years is The Limits of the Criminal Sanction by Professor Herbert Packer. He states “Politicians understand offences. Courts understand offenders”, and there is an element of truth in that. Politicians include all of us as members of society, such as those who participate in the media. It easy to say, “This is the way it should be”. When mandatory penalties of ten years for drugs offences were introduced by the Oireachtas in 1999, it was thought those sentences would be imposed on the big fish, such as drug barons. Only three or four such people have been sentenced in the past ten years, but the vast majority of people sentenced are impoverished individuals. The sentence was imposed on a radically different group of people that those envisaged.

It is easy to take the high moral ground in an area like this and believe that a fair trial must be put on the back burner, and the absolute protection of children is what matters, until one deals with real cases where the exceptional circumstances arise. I have no difficulty with a very strong law protecting children and ensuring that those who knowingly exploit them are punished and convicted. However, it must not be so watertight that the genuine individual who has made a reasonable mistake about age is convicted — which is a very serious matter particularly for sexual offences — and sentenced.

There must be strong protection-oriented law but not one so absolute it makes no provision for an exceptional case. The concepts of strict liability or reasonable and honest mistake, provided they are interpreted in good faith, could achieve that.

Like Deputy Ó Caoláin, I apologise for arriving late. Mr. O'Malley has covered my questions, especially in paragraph 21, where it is mentioned that a possible strategy might be to have strict rather than absolute liability. Mr. O'Malley discussed this regarding offences against children under the age of 13, and the concept of honest and reasonable mistake for those aged 13 to 17 and Senator Alex White discussed this with him.

Our job is to protect all children, vulnerable or otherwise, and to have a fair trial for an accused. If we sat here for a year, we would not reach consensus on the last point. I commend Mr. O'Malley for being brave enough to present his views, exercise our minds and have us talk about it. What is Mr. O'Malley's view on the age of consent? Is he happy with the current situation?

Mr. Tom O’Malley

The upper limit is 17 now.

The committee, sitting on this matter a year ago, had some consensus on the age of consent being 16.

Mr. Tom O’Malley

When one looks at age it is difficult to reach firm decisions because one is looking at chronological age. A more realistic age would be 16, given what we know of sexual behaviour of teenagers. I reached that view without knowing that consensual sexual activity among teenagers might be decriminalised, and that fact may colour one's views. I do not have a strong view, but I tend to favour 16 rather than 17 on the grounds that it reflects today's reality and the greater sexualisation of teenagers, who are sexually active at a much younger age than in the past. If I had a choice, I would go for 16, which is a more international consensus.

I was interested to see at the beginning of the submission that Mr. O'Malley would be slow to undertake a constitutional amendment, which he would regard as a last resort. Others witnesses to this committee had the same view.

We need to take all possible steps to safeguard and protect young people and children, but I have difficulty in ensuring that those so arraigned receive justice. Deputy Shatter mentioned a hierarchy of protection, but children are equal in needing protection. Culture has led us to believe that children need the protection of adults more than another adult would. Nothing I have heard has ever moved me from that position. In justice, everybody requires protection. Perhaps Mr. O'Malley would comment on that issue.

Mr. Tom O’Malley

I return to a point I made earlier, that it is very difficult and the law is full of impossible dilemmas where one tries to harmonise two competing rights. For example, in dealing with media law, how does one reconcile the right of the media to free expression with some people's right to privacy? There are all kinds of situations on which a compromise has to be reached. I repeat what I said earlier, when one is trying to balance two crucially important rights, such as protecting children on the one hand and the right to a fair trial on the other, one tries to phrase or cast both rights in a way that one does not exclude the other. The difficulty I have about the notion of absolute liability is that it could infringe on the fundamental fairness of a trial for an individual if it meant that a person was denied the possibility of putting forward a defence he or she legitimately had.

Does Mr. O'Malley know of any cases where this has happened? Has he knowledge of any such cases? I am not asking him to list them but do such cases occur?

Mr. Tom O’Malley

I cannot think of a case, even without mentioning the name, offhand. Certainly there was always the danger that they would have occurred and possibly did because the courts, generally speaking, could do nothing about it, if the prosecution was brought. In fact, I can think of one or two cases, one of which is quite well known and goes back to the 1950s and it has been followed a number of times since. In that case, the courts said that even though there might have been a mistake as to age it was no defence but it was a matter that could be taken into account in sentencing.

Mr. Tom O’Malley

The fact that was said shows that situations did arise——

It could happen.

Mr. Tom O’Malley

——where it could possibly arise.

On behalf of the joint committee I thank Mr. O'Malley for appearing before the committee and speaking with us at such length.

The joint committee went into private session at 6.25 p.m. and adjourned at 6.30 p.m. sine die.
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