Amendments Nos. 1, 13, 18, 19, 31, 33, 39 to 42, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.
Criminal Justice (Miscellaneous Provisions) Bill 2022: Committee Stage
Section 1 agreed to.
SECTION 2
Government amendment No. 1:
In page 6, line 5, to delete “Expenditure and Reform” and substitute “Expenditure, National Development Plan Delivery and Reform”.
A number of technical amendments from Senator Ward and me are grouped together for consideration.
Amendment No. 1 reflects the change in name of what is now the Department of Public Expenditure, National Development Plan Delivery and Reform.
Amendments Nos. 13 and 18 from Senator Ward have identified typographical errors. I thank him for that and I am happy to accept these amendments.
While I cannot accept the proposed amendment No. 19, I note the point the Senator is making. I am satisfied that the language is clear, however. It already states it has to be made to "both", obviously, whereas the Senator is including "both" before that. That point is made. It is clear from how it is written that both parties have to be given notice.
Amendment No. 31 addresses a minor drafting issue in the Criminal Justice (Theft and Fraud Offences) Act 2001 to clarify that in the relevant section, both the fine and imprisonment may be imposed.
Amendment No. 33 addresses a minor cross-referencing issue in the Garda Síochána Act 2005 from a subsequent amendment.
Amendments Nos. 39 to 42, inclusive, are consequential changes to the Long Title of the Bill arising from other amendments that are being proposed. They are all very technical in nature really.
I thank the Minister for accepting my amendments. I appreciate that they are not of enormous gravity. On that basis, however, I am not inclined to push amendment No. 19. I accept what the Minister said and I am not sure very much turns on it in any event.
Amendment agreed to.
Section 2, as amended, agreed to.
NEW SECTION
Amendment No. 2 is in the name of Senator Ward. Acceptance of this amendment would involve the deletion of section 3 of the Bill. This is a new section. Amendments Nos. 2, 3 and 30 are related and may be discussed together.
I move amendment No. 2:
In page 6, between lines 8 and 9, to insert the following:
“Repeal of section 4 of Offences against the Person Act 1861
3. Section 4 of the Offences against the Person Act 1861 is hereby repealed.
I am looking forward to the same spirit of co-operation from the Minister with regard to this amendment. Essentially, what this amendment does with regard to Part 2 of the Bill that is before the House is clarify the position regarding conspiracy to murder, which is very important. What section 3 does specifically is amend section 4 of the Offences Against the Person Act 1861 to change the term "to be kept in Penal Servitude for any Term not more than Ten ... Years". It proposes to change the maximum sentence arising from a conviction for conspiracy to murder to imprisonment for life or a lesser term of imprisonment. Therefore, it clarifies the position in that regard. The reason I tabled this amendment is that the 1861 Act is out of date. It is a pre-1922 statute. It was not made by any parliament of these people and this State. What I am suggesting in the grouped amendments is simply that we would repeal that section and replace it with a properly worded section that does exactly the same thing. There is no substantive difference between the two amendments. However, I am suggesting that we get rid of the old 1861 provision and replace it with a modern one in this Act, as it will be.
I appreciate where the Senator is coming from in this regard. We are both getting to the same point; we are just doing it in a different way. I accept there are certain items of legislation in which I have repealed and brought forward something new or other areas where we have simply amended older legislation. The reason we have taken this approach is because this was the recommendation in the Tom O'Malley report, which is obviously where this particular section in the miscellaneous Bill has come from. That is the path we took based on that recommendation. Obviously, therefore, to change this particular piece would mean changing a significant amount in the Bill itself and subsequent legislation it applies to. We are going to reach the same objective overall.
My goal really is that we enact this and make these changes that were recommended to me three years ago now at this stage. We should not delay that further, which, unfortunately, it might possibly do, when we are both essentially at the same point. We are just doing it a different way. I agree, though, that there is undoubtedly a broader question regarding updating and codifying our laws. I do not have a single item of legislation or a Bill that is doing that at the moment. Perhaps that is something we need to look at more broadly. It is perhaps something on which I could work with the Senator around ways in which we could repeal and maybe put in place something that is more structured and that specifically focuses on updating and codifying the law. We are getting to the same point but maybe just doing it in a different way.
Amendment, by leave, withdrawn.
Section 3 agreed to.
NEW SECTION
I move amendment No. 3:
In page 6, between lines 12 and 13, to insert the following:
Conspiracy to murder
4. (1) A person who conspires, or otherwise agrees, whether in the State or elsewhere, with one or more persons, to murder, is guilty of an offence irrespective of whether a murder actually takes place or not.
(2) Subsection (1) applies to a conspiracy committed outside the State if—
(a) the offence, the subject of the conspiracy, was committed, or was intended to be committed, in the State or against a citizen of Ireland,
(b) the conspiracy is committed on board an Irish ship,
(c) the conspiracy is committed on an aircraft registered in the State, or
(d) the conspiracy is committed by an Irish citizen or a stateless person habitually resident in the State.
(3) For the purposes of subsection (2)—
(a) a stateless person who has his or her principal residence in the State for the 12
months immediately preceding the commission of a conspiracy is considered to be habitually resident in the State on the date of the commission of the conspiracy,
(b) “Irish ship” has the meaning it has in section 9 of the Mercantile Marine Act 1955.
(4) A person charged with an offence under this section is liable to be indicted, tried and punished as a principal offender.
(5) A person guilty of an offence under this section shall be liable to imprisonment for life or a lesser term of imprisonment.”.
Amendment, by leave, withdrawn.
Section 4 agreed to.
Sections 5 and 6 agreed to.
NEW SECTION
I move amendment No. 4:
In page 8, between lines 12 and 13, to insert the following:
“Report on operation of sections 3 and 4
7. (1) The Minister shall, within twelve months of the passing of this Act, cause a report to be laid before both Houses of the Oireachtas regarding the operation of sections 3 and 4, to include, inter alia, their impact on deterrence.
(2) A report under this section shall consider sentencing guidelines more broadly, paying particular attention to the effectiveness or otherwise of mandatory or presumptive sentencing.”.
The Minister is very welcome to the House. It is lovely to see her back in Leinster House. This amendment relates to sections 3 and 4 of the Bill, which seek to increase the maximum custodial sentence available to the courts in respect of the offence of conspiracy to murder. Presently, the maximum custodial penalty that can be applied by the courts is a term of imprisonment of up to ten years.
Like my colleague, Senator Ruane, I understand the rationale around increasing the maximum sentence available to the courts in respect of conspiracy to murder. It seems to make sense that a judge should be in a position to impose an equivalent sentence for conspiracy to murder to murder itself. That is why we do not seek to amend sections 3 or 4.
However, Senator Ruane and I share significant concerns about the imposition of lengthy maximum sentences, mandatory minimum sentences and presumptive sentences on account of research that calls into effect their effectiveness in terms of deterrents and rehabilitation. Our concern in this respect is that additional strain will be placed on the Irish Prison Service, which is already under significant pressures in terms of capacity and the provision of rehabilitation services without there being a commensurate reduction in time. For example, presumptive mandatory sentencing introduced in respect of drug offences and organised crime appears to have failed to reduce the levels of drug-related or organised crime in the State according to reporting by The Irish Times in 2020. Did the Department undertake any of its own research into the effect of the extension of these penalties before the decision was made to extend the penalty for conspiracy to murder?
The Law Reform Commission advised in its 2013 report on mandatory sentences that it is unclear to what extent, if any, mandatory or presumptive sentences actually deter, while in its 2020 report on suspended sentences, it noted that the deterrence principle has been criticised on the basis that "evidence as to its efficacy as a crime desistance strategy is unconvincing". Professor Tom O'Malley, one of Ireland's foremost authorities on sentencing law, in a recent distinguished lecture at the school of law at the University of Galway, advised that a review of our sentencing guidelines should be undertaken to produce a system that is moderate, proportionate and constructive as well as consistent, and sentences that are logically coherent.
Our amendment calls on the Minister to undertake a review of the impact the proposed changes to the Offences Against the Person Act and Criminal Justice Acts have on deterrents within 12 months of this amending Bill being enacted. Additionally, the amendment specifies that any such report should also consider sentencing guidelines more broadly, paying particular attention to the effectiveness or otherwise of mandatory or presumptive sentencing. I know that our concerns in this respect are understood by the Minister. I look forward to her reply.
I thank the Senator. She touched on two points, which are the mandatory maximum sentence and the presumptive mandatory minimum sentences. A request was put in by the Senator's colleague, Senator Ruane, that we would have a review of the mandatory minimum sentences.
That is happening at the moment. Only a few types of offences - firearms and drugs offences - have that minimum presumptive sentence. The evidence to date, though we have not seen the final review, is they do not work as a deterrent. They are only guidelines. We cannot dictate or tell the Judiciary what it must impose. We can provide guidelines and, on the other side, provide the maximum sentence. What is proposed here is not a mandatory maximum sentence but would be the maximum sentence that could be applied.
On the timeline referred to of a year, the likelihood is that the number of people being given a life sentence for conspiracy to murder would not enable us to do an in-depth analysis of how it is working, if it is a deterrent or the impact it has on other areas. After five, six or seven years, we are likely to have a better picture. It is not a mandatory sentence and probably not something we will see ten, 20 or 30 of every year. It will take longer. It is better that a review be done more generally, whether looking at how we deal with organised crime, the work the gardaí do or penal policy, which is being developed in my Department at the moment.
I understand where the Senator is coming from and the intention. We want this to be a deterrent but I do not think building a review into the legislation would have the desired effect. It is about making sure this is part of a rounder piece of work the Department consistently does with the Garda, the courts, the parole board and other services to see how it affects it. I am not accepting the amendment because I do not think we would have the data to do the work it refers to. I accept the premise she is basing this on but it needs to feed automatically into the work of the Department.
Amendment, by leave, withdrawn.
Section 7 agreed to.
Sections 8 to 20, inclusive, agreed to.
SECTION 21
Question proposed: "That section 21 stand part of the Bill."
I intend to introduce Report Stage amendments providing for consequential changes to a number of other enactments arising from the new subsections 3A and 4A, relating to non-fatal strangulation offences. These mirror the provisions applicable to the existing sections 3 and 4 - assault causing harm and causing serious harm - provisions.
Question put and agreed to.
Section 22 agreed to.
NEW SECTION
I move amendment No. 5:
In page 16, between lines 17 and 18, to insert the following:
“Non-intimate partner coercive control
23. The Act of 1997 is amended by the insertion of the following section after section 9:
“Non-intimate partner coercive control
9A. (1) A person commits an offence where he or she knowingly and persistently engages in a course of conduct that consists of abusive behaviour that—
(a) is controlling or coercive,
(b) has a serious effect on a relevant person, and
(c) a reasonable person would consider likely to have a serious effect on a relevant person.
(2) For the purposes of subsection (1), a person’s behaviour has a serious effect on a relevant person if the behaviour causes the relevant person—
(a) to fear that violence will be used against him or her or another person, or
(b) serious alarm or distress that has a substantial adverse impact on the capacity of the relevant person to engage in some or all of the relevant person’s usual day-to-day activities.
(3) Abusive behaviour for the purposes of this section includes engaging in or threatening to engage in the following—
(a) behaviour that deprives the relevant person of liberty, restricts the relevant person’s liberty or otherwise unreasonably controls, regulates or monitors the relevant person’s day-to-day activities, communications or movements, whether by physically following the relevant person, using technology or in another way,
(b) undermining of the relevant person’s independence,
(c) imposing or making decisions on behalf of the relevant person without his or her consent or without the legal authority to do so,
(d) behaviour that is degrading, frightening, humiliating, punishing or shaming,
(e) behaviour that is intimidation,
(f) behaviour that is verbally abusive,
(g) behaviour that isolates the relevant person and preventing contact with family and friends and other supports,
(h) behaviour that causes harm to the relevant person, or to another person, if the relevant person fails to comply with demands made of the relevant person,
(i) behaviour that damages or destroys property,
(j) behaviour that is economically or financially abusive.
(4) A person who commits an offence under subsection (1) is liable—
(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or both, and
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years, or both.
(5) In this section, a person is a ‘relevant person’ in respect of another person if he or she is the subject of abusive behaviour.”."
I thank Safeguarding Ireland for working with me on this amendment. It is an amazing organisation that works tirelessly to protect people made vulnerable by societal neglect and political inaction. They work for older people and people with disabilities. I am happy to support their work.
The introduction of the offence of coercive control in the Domestic Violence Act 2018 was an incredibly important breakthrough. I know this is something the Minister is passionate about. For the first time in a criminal legal setting, the full extent of the control, dehumanisation and terror that makes up domestic violence could be revealed and documented. Before 2018, domestic abusers were generally charged with a series of assaults relating to specific acts of violence towards their partners. Coercive control created the opportunity for the judge and jury to hear about the entire oppressive dynamic of an abusive relationship. This was historic and important for vindicating the experience and trauma of victims. The purpose of criminal courts is not just to deliver punishments for criminal behaviour but also to make findings of fact and expose the truth. However, one downside to the 2018 legislation is that its definition of “coercive control” is limited to behaviour targeting an offender’s current or former intimate partner. People working with people at the risk of abuse, coercion and exploitation understand that coercive control does not just happen in intimate relationships. It can happen in families, in caring situations, residential and domestic, and in any setting where a person becomes dependent on the care of another. Safeguarding Ireland often has to face this in the work it does.
The amendment seeks to insert a new offence in the Non-Fatal Offences Against the Person Act 1997 modelled on the coercive control offence in the Domestic Violence Act 2018. This new offence would apply to everyone, not just intimate partners. The proposed offence would sit alongside coercion in the 1997 Act. The offences are similar but coercion has generally been associated with street-level crime, such as drug-related intimidation. Non-intimate partner coercive control would better capture the specific coercive and abusive dynamics that happen when a trusted person takes advantage and control over someone vulnerable. Such abuse is a sad reflection of the dysfunction and injustice in our treatment of older people, in particular, and people with disabilities. We need to take decisive action to combat it. This amendment would provide a framework for the punishment of offenders in criminal law. We also need comprehensive adult safeguarding legislation on the civil side to create the preventative and investigatory mechanisms to keep people safe and preserve their dignity.
I hope the Government will accept this amendment or, even better, introduce its own version of it on Report Stage. It has been written to mirror existing legislation enacted by the previous Government and I have tried to be as cautious in my approach as possible. People all over this country are experiencing coercive control but because the abuser is not an intimate partner, their legal recourse is significantly curtailed. I do not think that is good enough. This must change. It would be brilliant if the Minister would accept this amendment.
I agree with most of what the Senator has outlined and what she and the groups and representatives she has mentioned are trying to achieve. I have met with many of them. Last week I met with an amazing person who was abused but not by an intimate partner. There was coercive control but because it was not that specific scenario it could not be applied in the courts. This is something I want to move on and change.
The offence of coercive control designed in the Domestic Violence Act is specific to the intimate partner relationship. There had been much engagement with stakeholders and a process to get to that point and make sure it was specific to intimate relationships. I am not saying we need to start from the beginning or that the amendment as set out and the groups working on it have not done a huge amount of that work but we cannot mirror it or put it in as is without the process of ensuring it works in the right way, whether for a person with a disability or in a parent-child relationship, or where abuse takes place that does not include physical violence but includes an emotional and financial element. There is more work we need to do.
I regretfully will not accept the amendment but I want to work with the Senator and others to make sure we can introduce an amendment acknowledging that coercive control happens outside of intimate relationships. Though it is narrow, the introduction of that offence has had a phenomenal impact on how we deal with and think about domestic violence, on the people, in most cases women, who have come forward and on the type of cases we have seen publicly.
That has had a positive impact in encouraging victims to come forward. This would probably do the same but we need to give it the same focus and attention and make sure that we get it absolutely right. I will not be accepting this, with regret. However, I want to work with the Senator and others to see how we can create a path forward to apply this in other areas.
I am disappointed that the Minister will not accept the amendment. There is a perfect opportunity in this legislation to bring this in. It could not only be life changing for many vulnerable, older people out there, but it could be lifesaving. We could save somebody's life by doing this today. I encourage the Minister to change her mind on this. I will withdraw this amendment and I would like to have a chat with her about it before it comes back in. It is vital that she considers this for this Bill. How many people will be impacted while they are waiting for the next Bill to come through? How long will it take for us to go forward working on this? That is key to this. I ask her to reconsider. I would like to chat with her about it because if this is done now in this Bill, it could save lives. I want her to think about that. I will withdraw this amendment and I will resubmit it in the hopes that I can have a chat with her, if that is okay. Maybe we could set up a meeting with Safeguarding Ireland as well. They are incredible and amazing. The work they do is phenomenal, and I note their passion. I, therefore, ask her to reconsider this. I will withdraw it for the time being, and hopefully going forward I can have a chat with her about this. Maybe we could work out some way forward, even if it is the case that the Minister could table her own small amendment on this. That would be extremely helpful.
Amendment, by leave, withdrawn.
Amendments Nos. 6 to 9, inclusive, are related.
I move amendment No. 6:
In page 17, lines 1 and 2, to delete “that has a substantial adverse impact on his or her usual day-to-day activities”.
This suite of amendments seeks to expand what constitutes stalking within the Bill. Currently, the Bill contains a qualifier in that the harm caused by stalking must have a "substantial adverse impact" on a victim's usual day-to-day activities. This provision has rightly been criticised by many domestic violence groups and agencies. These amendments seek to provide a suitable remedy.
The focus on instances of stalking should always be on the conduct of the perpetrator of these offences and not on the adverse impact of this behaviour on a victim which, as Senator Ruane has stressed previously, is likely to be difficult to prove in many instances. What is most concerning is the potential negative impact that this could invariably have on victims of stalking and harassment. The timely reporting of stalking to An Garda Síochána could be negatively affected where victims may feel that they cannot prove the harm that has been caused to them, which risks their being subjected to further future harm. Additionally, it could work against victims, who may actively choose not to alter their day-to-day activities in an attempt to demonstrate their resilience. The suite of amendments should be considered together in its entirety as the intention is the same throughout the amendments.
Amendment No. 6 seeks the deletion of the reference to "substantial adverse impact" in respect of the alarm or distress caused by stalking. This means that the alarm and distress caused by stalking in and of itself would be sufficient to demonstrate the impact of stalking on a person.
Amendment No. 7 seeks to introduce a separate reference to "substantial adverse impact" such that a person would be guilty of the act of stalking wherein their behaviour disrupts a victim in terms of their engagement in their own day-to-day activities. This amendment, therefore, expands the standard of conduct for stalking.
Amendment No. 8 seeks the deletion of an additional reference to "substantial adverse impact" of the alarm or distress caused by stalking in section 23(2)(b).
Amendment No. 9 seeks also to expand the standard of conduct for stalking by introducing an additional, separate reference to behaviour that disrupts a victim in their engagement in their own day-to-day activities. These amendments take account of the concerns expressed by domestic violence groups by subtly expanding what constitutes harassment or stalking under the Bill.
Before I bring in the Minister, on this day of days, which is the 60th anniversary of President John F. Kennedy's address to Dáil Éireann and Seanad Éireann, it is appropriate that I welcome from Ballyporeen guests of Senator Ahearn: Breda Fitzgibbon, Eamon O'Hanrahan, Eileen Hickey, Kevin Caplice, Martin O'Donoghue, Fiona O'Donoghue, John O'Donoghue and Mary O'Donoghue. Ballyporeen is associated with the second US President to address a joint sitting of the Houses. They are most welcome. I thank Senator Ahearn for bringing his guests here today.
I also welcome our guests to the Seanad.
I thank the Senator for her amendments. I understand where she is coming from in this regard, and some of the NGOs have raised this as well. Amendments Nos. 6 to 9, inclusive, propose to alter the definition of "stalking" to separate the element of the offence that refers to substantial adverse impact on day-to-day activities from the causing of serious harm and distress. As the Senator rightly said, there are a range of different ways in which we could approach stalking. This is something that went back and forth quite a lot between my office and the Office of the Attorney General. When looking at the best way to approach this, we tried to take into account all possible scenarios in which people could find themselves, not just where there is persistent behaviour, but where there might be a once-off incident that could be equally terrifying and could have the same impact.
We can solely focus on conduct, the mentality of the perpetrator and whether there is obsessive behaviour, or we can focus on the consequences. This is where we have landed. This is the best advice I have received. The latter approach is what we have adopted for the main criminal offence. This is then complemented by the civil orders that we are also bringing forward as part of the legislation. This looks at the conduct. It does not look at whether it had an impact or whether there was an intent. It looks at the actual conduct itself. We have tried to balance the stalking legislation with the civil orders to make sure that there are various different bars and thresholds so that people can get that protection when they need it. This can be immediate or, if they want to take a criminal trial, there can be a prosecution at the end of the day.
People are guilty of a stalking offence under this legislation if they either put another person in fear of violence or cause serious alarm and distress that has a substantial impact on day-to-day activities. Again, this can be done by any conduct. We have not stressed in the Bill what kind of conduct that needs to be. The offending conduct can be done intentionally or recklessly. To put it another way, the perpetrator does not necessarily need to want to cause distress as long as he or she realises that there was a real risk that the behaviour they were doing will actually result in those consequences. This definition, causing a fear of violence or a serious adverse effect on a victim's day-to-day life, captures the essential harms caused by stalking. It is defined in terms of the serious consequences it causes. Again, the requirement for persistence is something that was not there initially. This takes out the need for something to be happening on a continuous basis and acknowledges that a once-off incident can be equally distressing.
The risk of expanding it in the way that the Senator sets out is that it would refer to any conduct that causes serious distress. That would essentially put in place an offence for causing alarm or distress, whereas we are trying to focus on stalking and the severity of it. It would become a catch-all offence that could cover just a single incident that causes distress. It is a matter of finding the balance where we do not say that absolutely anything that any person does that might cause distress can be construed as stalking. That in itself might be a different type of offence but, for the purpose of this Bill, it is not stalking. Then, there is the civil order which, as I have said, allows a person to look at the conduct of the perpetrator in question to essentially ask a judge if it is likely that type of conduct would cause somebody harm or distress, even if this was not meant to happen. That is the lower bar we have set here. It is about making sure that we address the seriousness of stalking, that we have other measures in place to try to prevent these types of behaviours from happening in the first instance, and that we do not breach it out into something else that could capture a number of other scenarios that already are covered by particular types of offences.
There is also the issue of harassment, which is being addressed in this Bill. This covers not just the stalking offence, but could for example include neighbour-to-neighbour contact, where somebody consistently shouts abuse over a hedge, cuts down trees or causes a person alarm or distress so that they cannot go out to their back gardens.
There are a number of ways in which we have tried to address the different scenarios in which people might find themselves. The outcome of the amendment proposed would be to broaden it out so much that any one incident could be deemed a stalking, which I do not think is what we are trying to achieve.
I will withdraw the amendment and will resubmit at a later Stage. That will give Senator Ruane an opportunity to come in and discuss this matter with the Minister.
Amendment, by leave, withdrawn.
I move amendment No. 7:
In page 17, between lines 2 and 3, to insert the following:
"(iii) a substantial adverse impact on his or her usual day-to-day activities,".
Amendment, by leave, withdrawn.
I move amendment No. 8:
In page 17, line 8, to delete "or serious alarm or distress that has" and substitute "serious alarm or distress, or".
Amendment, by leave, withdrawn.
I move amendment No. 9:
In page 17, lines 8 and 9, to delete "that has a substantial adverse impact on his or her usual day-to-day activities".
Amendment, by leave, withdrawn.
Section 23 agreed to.
Sections 24 and 25 agreed to.
SECTION 26
Amendments Nos. 10 to 12, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 10:
In page 19, lines 27 and 28, to delete "that has a substantial adverse impact on his or her usual day-to-day activities".
This grouping is amendments Nos. 10 to 12, inclusive.
That is correct.
Section 26 of the Bill provides for the granting of civil orders against "relevant conduct" and the Bill, as drafted, provides that civil orders can only be granted in circumstances where "relevant conduct" has been engaged in by a respondent towards an applicant. The issue these amendments try to address is that "relevant conduct" currently only captures behaviour which constitutes stalking but not harassment. As we believe it is important that civil orders should also be available to victims of harassment, the amendment simply seeks to expand on the interpretation of "relevant conduct" within the Bill. We have taken the standard of conduct from the stand-alone harassment offence and simply included it within the definition of "relevant conduct" in Part 5 of the Bill. While we acknowledge that the offence of harassment is likely intended to capture less severe conduct than stalking, it is behaviour which can have a significant and distressing impact on victims. As noted by Women's Aid in its submission on the Bill, the persistence of harassment means its impact will be cumulative. If the behaviour is not addressed, it risks escalating in the future. It is not always possible for victims to successfully initiate criminal proceedings for harassment. It is important that victims have access to other recourse and other paths to safety. This amendment would ensure that victims of stalking and harassment would, importantly, have the same access to justice.
In addition to expanding the definition of "relevant conduct" so that it includes harassment, amendments Nos. 10 and 11 separately deal with the same issue that amendments Nos. 6, 7, 8 and 9 try to remedy, that is, the removal of the qualifier within the Bill that provides that a respondent's behaviour must have a substantial adverse impact on a victim's usual day-to-day activities.
We are talking about many of the same issues we discussed in the previous amendment. What we are trying to do is to prevent the stalking behaviour. It is about looking at the immediate safety and welfare of applicants so they can get an immediate order for eight days, as is set out, or five years, on a much longer footing.
While stalking, harassment and civil orders are inextricably linked, the standards that are applied are very different. For the civil order, we have set the bar far lower because of the possible immediate threat and risk to a person's safety and well-being. We see stalking in a different way to harassment. An issue of going to neighbours or others could apply. That is not specific to that type of scenario and applies where there are relationships or other types of conduct or behaviour. This specific order is intended to prevent stalking behaviour from escalating. It is where somebody does not want a criminal conviction for the person in question and wants only to stop the behaviour.
In saying that, we need to look at how this is applied. If it is introduced, we need to see how it is applied and to see if it is too narrow and not working. We may look at it again later. Because the conduct is connected with the stalking offence, the intention is to try to prevent that from escalating and ensure immediate support for somebody experiencing that. It is for that reason it has been included. The bar is set quite low. There is no need to show someone has been harmed or it was another person's intention to cause harm. The conduct itself is all that needs to be considered. That eliminates many of the challenges that people face if they want to take a criminal prosecution in the first instance.
I will withdraw the amendment and resubmit on Report Stage. Senator Ruane will discuss the matter with the Minister
Amendment, by leave, withdrawn.
I move amendment No. 11.
In page 19, between lines 28 and 29, to insert the following:
“(c) a substantial adverse impact on his or her usual day-to-day activities.”.
Amendment, by leave, withdrawn.
I move amendment No. 12:
In page 19, between lines 28 and 29, to insert the following:
“(c) serious interference with their peace and privacy, or
(d) alarm, distress or harm.”.
Amendment, by leave, withdrawn.
Section 26 agreed to.
SECTION 27
I move amendment No. 13:
In page 20, line 9, to delete “a”.
Amendment agreed to.
Amendments Nos. 14 to 17, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 14:
In page 20, to delete lines 13 and 14 and substitute the following:
“(2) An application under subsection (1) may be made ex parte or on notice to the respondent concerned.”.
These amendments relate to section 27, which creates a power for orders to be made. These amendments relate specifically to the mechanics of making those orders. In section 27(1), the power is created for that order to be made on an application before the court. Subsection (2), which is the subject of my amendment No. 14, currently states that such an application shall be made on notice to the respondent concerned. The amendment I am proposing to this section is that an application would be made either on notice to that person or ex parte, that is, without that person. I am suggesting that because the danger with requiring the application to be made on notice to the other party is that it slows down the process. One of the major provisions of these section 27 powers is to create a swift response, where required. My concern is that if there is an obligation on the applicant or the court to take the view that the notice has been effected against the respondent, it can create a block for the hearing of the application and thereby the issuing of the order under section 27.
Amendment no. 16 is to insert a new subsection (3). The proposal is we would amend subsection (2) to say applications can be made ex parte, that is, without the other party, or on notice to the other party. That would be followed by subsection (3), which states, "The court, on application to it under subsection (1) [which is the section 27 order] for an order under this section may, where it is of the opinion that is necessary and proportionate to do so, require that the application be made inter partes or on notice to the respondent concerned." That is a saver to cover a situation where perhaps somebody is going in where they should not or where there was a reasonable opportunity for them to put the other side on notice. It is important that, wherever possible, both sides are heard in an application for an order such as this. In fact, we know that in respect of certain other orders, and I am sure the Minister and other Members here get the same complaints I do, it is sometimes the case that the person who is the subject of the order is not aware the application is being made until after the fact. That obviously creates further tension that we do not want to create.
What is important in these section 27 orders is that a flexibility is built in to allow the court to do what it needs to do when it has heard the evidence. I will say two things in that regard. The first is that there is an obligation in the context of an ex parte order, the uberrima fides principle, that the person who is making that application ex parte must put the full facts before the court, including those facts that are against the making of the order or against the case they are making. The second thing is that with amendment No. 16 and the insertion of subsection (3), we are putting in the hands of the judge or court the power to make a call as to whether the notice should be effected. It is still open to applicants to go in ex parte and say they need an order for particular reasons but the judges can sit back and say they hear what an applicant is saying but want notice to be served to the person who would be the subject of the order. The judge can ask the applicant to give the subject of the order the chance to come before the court. If the subject chooses not to come, a particular view can be taken. However, there should be an opportunity for the subject of an order to come to court and make his or her point of view known, if that is what he or she wants to do. The judge, in his or her experience and professional expertise, will, we hope, know when it is the right time to make that call.
My concern about the way subsection (2) is currently drafted is that there is a potential for a mechanism that would allow somebody who did not want an order to be made against him or her - him more often than not - to frustrate the process by avoiding being put on notice, avoiding coming to court and by allowing the person making the application to put that person on notice.
The answer to this might well be that there are all types of mechanisms the court can use. It can have substituted service or it can order a service by ordinary post to make that notice easier. Why even have the stumbling blocks? Why not just provide the power for the court to make the order ex parte? Of course it can be undone if a mistake has been made. Why put the stumbling block in place? Why not have a situation where the applicant can go in and get the order but still have in the power of the court the opportunity to say everybody needs to be informed? Amendments Nos. 14 and 16 propose giving greater flexibility to the court to allow a smoother process whereby applicants can get orders faster if that is what is appropriate.
Amendments Nos. 15 and 17 seek to provide that applications to the courts for civil orders can be made ex parte or by and for only one party to a dispute. The Bill, as drafted, provides that applications for these orders must be made on notice to the respondent. Amendment No. 15 simply provides that an application shall be made to the court for a civil order under section 27 of the Bill unless doing so would place the applicant at risk of harm. This acknowledges the risks associated with notifying a respondent in certain cases. Amendment No. 17 inserts a new provision in the Bill which specifies that application orders can be made ex parte or by and for the applicant where the court deems it is in the interests of justice to do so, having regard to the individual circumstances of the application.
These amendments, taken together, would ensure that victims of harassment and stalking could make applications for civil orders to the court without putting themselves at risk of further harm through retaliation, intimidation or an escalation of the relevant conduct, which is harassment or stalking, while awaiting the full hearing of any application without a court order to restrain the problematic behaviour in the interim. The issue has been highlighted by a number of domestic violence groups. It is important that we hear and act on their concerns. This is a simple and sensible amendment and I hope the Minister will consider accepting it.
I thank the Senators. This issue has already been raised. On Second Stage, the Minister, Deputy Harris, gave a commitment to bring forward amendments specifically on ex parte applications. Unfortunately they are not ready but I hope they will be ready for Report Stage.
The reason I will not accept Senator Ward's amendments is that we need to go even further. We need to put in place provisions on interlocutory orders and other areas. While I fully accept what he is saying on the amendments, we have been given Government approval to go further. This is what we are working on. We need to make sure every element-----
Is the Minister suggesting that my amendment is imperfect?
Not at all. I suggest that we should go even further and that there are other areas that have been brought to our attention that need to be included.
I understand from where Senator Black is coming. I have just come from a family justice forum where we spoke about the family justice system and how abuse can continue into the courts. It is no different when we are speaking about these types of orders. We cannot remove a person's ability to be heard. A garda can come in on behalf of a person where an order is put in place for eight days and people can seek an order for a longer period of time. With regard to the idea that people would seek a civil restraining order without the ability for a person to set out the other side of things, we have to look at the fact that in a small number of cases the person seeking the order could be the person abusing and could be using it as another way to get at an individual. We must always allow people to provide their side of the story, to put it in simple terms.
At the same time, it is very much up to the judge to decide whether this is something to be applied and whether there needs to be an amendment. An example given to me involved two people in university with an order that someone must stay away from the other person's place of education. If it then transpires the other person is in the same university, is there a way for the judge to listen to see how the order can be applied? We are not speaking about criminalising a person. This is about trying to stop behaviour. It should not impact on their ability to go to school.
There are a number of different ways we have to look at this. It is about making sure a person can get an immediate safeguard but we cannot take away the other person's right to explain. There might be another side to the story. It is more likely this will be in the minority of cases but for those cases it is very important that people have their say.
I appreciate very much what the Minister has said. I also appreciate that action will be taken. On that basis, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 15:
In page 20, line 14, after "concerned" to insert ", unless doing so would place the applicant at risk of harm".
Amendment, by leave, withdrawn.
I move amendment No. 16:
In page 20, between lines 14 and 15, to insert the following:
"(3) The court, on application to it under subsection (1) for an order under this section, may, where it is of the opinion that it is necessary and proportionate to do so, require that the application be made inter partes or on notice to the respondent concerned.".
Amendment, by leave, withdrawn.
I move amendment No. 17:
In page 20, between lines 14 and 15, to insert the following:
"(3) Where, in the interests of the applicant’s safety and wellbeing, an application cannot be made on notice to the respondent concerned, an application may be made ex parte where, having regard to the circumstances of the particular case, the court considers it necessary or expedient to do so.".
Amendment, by leave, withdrawn.
I move amendment No. 18:
In page 20, line 23, to delete "the applicant, or where relevant, a person" and substitute "the applicant or, where relevant, a person"
Amendment agreed to.
Section 27, as amended, agreed to.
SECTION 28
I move amendment No. 19:
In page 21, line 3, after "to" where it secondly occurs to insert "both".
Sections 29 to 45, inclusive, agreed to.
Amendment, by leave, withdrawn.
Section 28 agreed to.
SECTION 46
Question proposed: "That section 46 stand part of the Bill."
This is an important section and it is worth marking its passage. No amendment to it has been tabled but it is a very important measure that the Minister has put into the Bill. It is with regard to creating an environment where witnesses feel they can come forward and that when they do they will avail of the protection of the court system, never mind the State and whatever prosecutorial agencies there are. The availability of the possibility of anonymity for a witness giving evidence is tremendously important. It applies with regard to very particular offences but we all know the circumstances, and I suspect many of us have dealt with a situation where somebody has shared with us their unwillingness to come forward as a witness in a case because of the very fact their name or face will get out there or become known to a person before the court. Section 46 is tremendously important. It is also a new departure for our law. In circumstances where these Houses are trying to build a situation where the courts are a more welcome environment for people who are victims of crime or witnesses to crime, it is entirely appropriate that we put in place a measure such as this. I did not want it to pass without it being specifically welcomed.
I thank Senator Ward for his remarks. I agree with him on the reason people do not come forward.
Question put and agreed to.
SECTION 47
Question proposed: "That section 47 stand part of the Bill."
A Report Stage amendment to this section is being considered.
Question put and agreed to.
Sections 48 and 49 agreed to.
NEW SECTIONS
Government amendment No. 20:
In page 30, between lines 2 and 3, to insert the following:
“Amendment of Criminal Evidence Act 1992
50. The Criminal Evidence Act 1992 is amended—
(a) in section 12(1), in the definition of “relevant offence”—
(i) by the insertion of the following paragraph after paragraph (b):
“(ba) an offence under section 10 (amended by section 23 of the Criminal Justice (Miscellaneous Provisions) Act 2023) of the Non-Fatal Offences against the Person Act 1997;”,
(ii) by the insertion of the following paragraph after paragraph (da):
“(db) an offence under section 43(1) of the Criminal Justice (Miscellaneous Provisions) Act 2023;”,
and
(iii) in paragraph (e), by the substitution of “(ba), (c), (d), (da) or (db)” for “(c), (d) or (da)”,
and
(b) in section 14C—
(i) in subsection (2)—
(I) in paragraph (a), by the substitution of “relevant offence” for “sexual offence”, and
(II) by the substitution of the following pargraph for paragraph (b):
“(b) a victim of the relevant offence who has attained the age of 18 years is to give evidence,”,
and
(ii) by the insertion of the following subsection after subsection (2):
“(2A) The court, in performing its functions under subsection (2), shall have regard to the need to protect the victim from secondary and repeat victimisation, intimidation or retaliation, taking into account—
(a) the nature and circumstances of the case, and
(b) the personal characteristics of the victim.”.”.
Acceptance of this amendment involves the deletion of section 50 of the Bill.
Section 14C(2) of the Criminal Evidence Act 1992 provides that where a person is accused of a sexual offence and the alleged adult victim of the offence is to give evidence, "the court may direct that the accused may not personally cross-examine the witness unless the court is of the opinion that the interests of justice require the accused to conduct the cross-examination personally." This amendment broadens the scope of this protection to cover relevant offences. Within the meaning of the 1992 Act, a relevant offence under the 1992 Act already encompasses sexual offences, offences involving violence or the threat of violence, coercive control, forced marriage and certain offences. It will also include the new stalking and harassment offences and breaches of civil orders under section 27 of this Bill, which we have already discussed. This means the victims of these particular crimes cannot be cross-examined by the accused in person unless the court or the judge deems that the interests of justice require that such a cross-examination takes place in person. Extending the scope of this provision will again, similar to the Senator's previous point, safeguard victims and encourage more to come forward where there is less intimidation, retaliation and revictimisation in courtroom setting, which we already recognise and is widely recognised as hugely traumatic. I am also hopeful that by providing this protection, it will encourage more victims to come forward in the same way.
It is worth noting as well that this is an important new provision this legislation will provide. As somebody who practices in the criminal courts, it is important to remember that the value of cross-examination cannot be underestimated. It is incredibly important for those accused of crimes to have the right to face their accuser and essentially test the evidence their accuser is giving.
In the vast majority of cases, that is done through a representative such as a solicitor or, more often, counsel or a barrister in court.
The important thing is that when a barrister stands up to cross-examine a witness, he or she is subject to a range of restrictions or codes of conduct or expected models of behaviour in addition to all the training and expertise that person may have built up over a career or over decades. The danger is that, of course, people also have the right to represent themselves. Again, I do not dispute that right. It is an important right within the canon of rights that exist for those accused of crimes. Very often in a criminal trial, the person who knows most about the case is the person who is accused. The person who has most at stake is the person who is accused, which is not to say that people do not receive excellent representation from barristers and solicitors, including under the legal aid scheme in this jurisdiction.
However, while it is an important right for people to represent themselves, and I say this in the context of the hate speech legislation, no right is absolute. All of the rights we enjoy, be it under the Constitution or international instruments, are rights that are balanced against other rights. At some level, even the most fundamental rights are balanced against other rights. So, too, is this true of the right to represent oneself. Therefore, nobody is suggesting that should be removed. In certain circumstances, however, it just is not appropriate for a person to represent himself or herself and then also get to cross-examine the very person who made an accusation against him or her. The reason for that is simply that it is hugely and potentially massively damaging for the complainant in that case. It is something that will actively discourage those people from coming forward, as the Minister said. The reality is that we all know of cases where it can be done nefariously. It can be done with malicious intent by the person in order to specifically embarrass the complainant or make that process of giving evidence more difficult, which is not to say this amendment and this new section will make it easy for complainants to give evidence. It is always difficult to make a complaint against a person and go through the process of giving a statement and evidence to the Garda and then go through a court process, if that is what happens, and go into a courtroom and swear an oath and affirmation and then recount what happened. That is always going to be difficult. However, it is important that we make it as easy as possible, or at least as reasonable as possible. We should be actively taking out of the process specific barriers that make it almost impossible for people to complain and to give evidence.
The obvious example is a person who alleges a rape was committed against him or her. The idea that a person would have to go into court is obviously going to be difficult but then once in there, they may have the very person they say raped them stand up and potentially hurl abuse at them in an open courtroom in the full gaze of a jury, other lawyers and the judge or whatever it is. That is obviously an appalling concept but at the moment, it is bound up with that right to represent oneself. The danger with that is that a complainant might just say that however bad what happened was, and however much it damaged him or her or how much pain it caused, he or she would rather just draw a line under it and not bother going to court and face that scenario.
This is a reasonable balancing of that right of the accused person to represent himself or herself. Of course, that representation can endure throughout the case, except for the cross-examination of this witness. It is, however, an appropriate balancing of those two rights to say we are not going to require a person to sit there as the very person he or she says has done a heinous thing to that person gets to basically have a pot shot at him or her. While many people have misgivings about the tempering of that right to represent oneself, this is an absolutely proportionate and reasonable approach that will hopefully send out the message to people who allege that crimes have been committed against them. Of course, the presumption of innocence endures throughout all these processes. However, those people who are complainants in criminal trials must receive the message that when they make a complaint, they will be taken seriously and treated with the respect and dignity we all deserve.
Part of what we have been doing in this House since I have been a Member and since the Minister has been in her office is a progression towards every stage of that process improving from the point of view of the victim without at the same time compromising the rights of the person who has been accused. That is a really important balance to be done. Now, however, we can say with reasonable certainty to complainants that if people go to the Garda, they will have somebody who will take them seriously and who will know what they are doing. They will have somebody who will have done it before and will have experience and specific training in this area. Now, if people go to court, they will have a situation where they will be treated with respect and dignity in a way that some victims maybe were not in the past. Amendment No. 20, which the Minister is proposing, is a really important step down that road and a really important acknowledgement of the difficulty for victims in going through the courts process. We hope they will receive the message that we are trying to make it easier while also balancing the rights to which everybody is entitled.
Amendment agreed to.
I move amendment No. 21:
In page 30, between lines 2 and 3, to insert the following:
“Power for Minister to amend the Judges’ Rules by regulation
50. (1) The Minister may, where he or she feels it is in the interests of justice and efficiency, make regulations under this section, to amend Rule 9 of the Judges’ Rules to allow for the taking of statements from a person, otherwise than to require such a statement to be immediately recorded in writing, provided the statement is recorded in another form.
(2) In this section— “the Judges’ Rules” refers to nine common law rules of guidance set out by the Supreme Court in its decision in the case of People (AG) v. Cummins reported at [1972] IR 312 at pages 317 and 318;
“Minister” means the Minister for Justice.”.
To be perfectly frank, I lifted this from section 2 of my Criminal Procedure and Related Matters Bill 2021. I will outline what this amendment is trying to do. I do not know whether it is likely to be accepted.
The Judges' rules are a series of principles that have been laid down in common law over time. They were defined in my Bill for that purpose. They are rules that essentially must be exercised with regard to persons in custody, and they are reasonable rules. Rule No. 9 is something from a bygone era. It essentially requires a written note to be taken by the Garda in the course of an interview with a suspect. It essentially means that a garda - usually there would be two gardaí with one questioning and one writing - takes a written note of what a person is saying, both questions and answers, but mostly what the accused person or witness or interviewee is saying in the course of an interview. That is something that harks back to a time when there were no recording devices, for example, and that was the definitive account of what was said in the interview. Of course, at the end of the interview, in almost all cases, the person will be invited to read what the garda has written down, or it can be read back to him or her, and the interviewee has an opportunity to confirm what he or she said has been correctly recorded and whether he or she is happy with what he or she said to the gardaí.
Nowadays, I do not believe there is a Garda station in the country that does not have proper audiovisual recording facilities. When I started the Bar, we were watching video tapes. That is no longer the case. Everything is now digitally recorded. The sound quality is excellent. The video of what is happening is excellent. That is the go-to version of what was actually said. If there is any dispute about what was said, there is a provision under section 56 for that video to be provided to the defence and they can look at it and clarify what is there. I also suspect that when the memorandum of the interview that is ultimately used in books of evidence or in whatever evidential article is being prepared, it is checked against that video as well.
The point I am making with this amendment is that we do not need to write it down any more live in the room with the interviewee and the garda. The worst thing about that required process is that the interview can only move at the pace at which the junior garda - the senior garda never does the writing - can actually write it down. This means that interviews are painfully slow. That is frustrating for barristers watching the videos after the fact. We will not mind that, however, because it is not my primary gripe. Where a garda wants to get a rhythm in an interview, ask quick-fire or slow questions or vary the tone, in the same way that a barrister might do so in cross-examination, he or she cannot do that. Judges' rule No. 9 actually hampers the ability of garda interviewers to get what they need from an interviewee. It is an old style, is out of date and completely unnecessary now.
Obviously, if there was a power cut or a video or audio recording was not available for some reason, the rule would be required. The reality is that this no longer happens or if it does, it is in a minute number of cases. We still have a situation where gardaí are writing down these interviews. It is slow and laborious. It is a waste of their time and is hampering their ability to get the job they need to do done. What I am suggesting in amendment No. 21 is not that we throw out the Judges' rules - the definition is in subsection 2 - because I think they are really important. I include in that rule No. 9, which has a place. Instead, we should give the Minister the power to make regulations providing that they do not always have to write down the interview live and that this will not compromise the validity of any evidence that arises from the interview.
This is a very restricted amendment. It is not changing the law of evidence or anything like that. All it is doing is giving the Minister the power to change it in a way that allows the investigative process to work more swiftly, the gardaí to do their jobs properly and the matter to come before the courts in a more expeditious manner than it is currently the case. In my submission, this is a perfectly reasonable, understated amendment that would have a huge effect on the criminal justice system and the Criminal Evidence Acts by allowing for evidence to be brought in a much more modern, effective, quicker and easier fashion. That is why I have tabled it.
I know the Senator has raised this point before, particularly the requirement to write down everything that happens in an interview. The advice I have been given is that I have the ability to change this under regulations, section 27 of the Criminal Justice Act or by amendment to the custody regulations. Obviously, that has not happened and perhaps this area needs to be updated.
A separate police powers Bill is being worked on and the advice given is that this legislation would be the right place to do this. The right thing for us to do would be to work on this issue as part of the police powers Bill to see if such an amendment is needed and if we need to update the regulations that are currently applicable if they are not working. We will look at how we can bring this forward. We may update more generally as part of the Garda powers Bill.
Amendment, by leave, withdrawn.
NEW SECTIONS
Amendments Nos. 22, 23 and 26 are related and will be discussed together.
I move amendment No. 22:
In page 30, between lines 2 and 3, to insert the following:
“Amendments to Firearms Acts 1925 to 2006
50. The Firearms Acts 1925 to 2006 are amended—
(a) by the repeal of subsections (12), (13) and (14) of section 12A of the Firearms and Offensive Weapons Act 1990 (as inserted by section 65 of the Criminal Justice Act 2006 and subsequently amended by section 40(c) of the Criminal Justice Act 2007), and
(b) by the repeal of section 27C of the Firearms Act 1964 (as inserted by section 61 of the Criminal Justice Act 2006).”
The amendment on the Judges' rules is a much more progressive one and I appreciate what the Minister said in that regard.
This amendment is a reaction to the Ellis v. Minister for Justice and Equality case. I may even be out of date in terms of what is being said here. Essentially, these proposals have been taken from the Criminal Procedure and Related Matters Bill 2021, which I drafted a couple of years ago. The three amendments address the concerns expressed by the Supreme Court in the Ellis case and have to go together. They do not stand alone. The Minister is well aware of the issues canvassed in them, so I will propose them and hope they will be accepted.
As the Senator said, the first part has already been done. There has been an update and there is a review under way for the subsequent piece. Until the review is done, I will not be pre-emptive. This is an area on which the Senator and I should work together.
I will move and withdraw my amendments.
Amendment, by leave, withdrawn.
I move amendment No. 23:
In page 30, between lines 2 and 3, to insert the following:
“Amendment of section 27 of Misuse of Drugs Act 1977
50. Subsections (3E) and (3F) of section 27 of the Misuse of Drugs Act 1977 (as inserted by section 33 of the Criminal Justice Act 2007) are repealed.”.
Amendment, by leave, withdrawn.
Amendments Nos. 24, 25, 27, 28, 32 and 34 are related and may be discussed together.
I move amendment No. 24:
In page 30, between lines 2 and 3, to insert the following:
“Amendment of Criminal Justice Act 1990
50. The Criminal Justice Act 1990 is amended by the substitution of the following section for section 2:
“Sentence for treason and murder
2. (1) Subject to subsection (2), a person convicted of treason or murder shall be sentenced to imprisonment for life.
(2) Where a person is convicted of treason or murder and the offence for which that person has been convicted occurred before he or she had reached the age of 18 years, the provisions of subsection (1) shall not apply and he or she shall be liable to a maximum penalty of imprisonment for life.”.”.
These amendments come together. They are essentially related to a Bill I tabled earlier this year in relation to juvenile offenders. They are important because in our law at the moment there is a gap in what the Oireachtas intended insofar as we have put in place, through the Children Act and other provisions, specific legislative measures that protect children who are before the courts. They protect people who have been accused of crimes and who are under the age of 18. That is as it should be because they are a different category of offender, notwithstanding what some people who email me about these matters have said. It is important that those measures are in place. Under the Children Act, we have quite a progressive regime in relation to children. While it does not always work, it is good.
Specifically, on amendment No. 24, there are minimum mandatory sentences for offences such as murder. We have the appalling and unreasonable situation in which if, for argument's sake, a 15-, 16- or 17-year-old commits an act which constitutes murder, is accused of that offence and brought before the courts and by the time the case gets to sentencing, as opposed to conviction, and the stage of final pronunciation of the sentence by the judge, that person has reached the age of 18, a mandatory life sentence will kick in. That is totally disproportionate. That is one example. What happens if somebody commits an offence while aged 15 years and is not caught for 20 years? That person would still be subject to a mandatory sentence for something he or she did as a child. These amendments propose to recognise the fact that a child offender is a child offender. Even if he or she subsequently becomes an adult, the offence was still committed by a child and it should be seen that way by the courts. At the moment, the courts' hands are tied in this regard.
Having said all that, I recognise that the Minister has tabled an amendment that essentially does what I have proposed. I am tremendously grateful to her because this is a very progressive change. The Minister's amendments Nos. 27 and 28 essentially do the same thing. Apparently, the Department is unhappy with the manner in which I have drafted my amendments. I will get over myself in that regard. The change is welcome, progressive and important. As I said, I raised this issue earlier this year in a Private Members' Bill. I am delighted it has been taken on board. It is as it should be and a welcome change. I very much welcome the Minister's amendments Nos. 27 and 28. On that basis, I will move my amendment No. 24 and withdraw it and do the same with amendment No. 25.
I thank the Senator for raising this issue. It is because he raised it that these changes are being made. The Minister, Deputy Harris, previously gave a commitment that amendments would be tabled. As the Senator said, there is a lacuna in the law. Looking at it in practice, there are very few children who receive a life sentence but, as the Senator said, there can be transitional cases where someone turns 18 or 19 years during a case or a case may even occur many years later.
There is also another element we need to look at, namely, where a judge hands down a sentence and a review timeline. We must look at whether judges have the power to do that. There are, therefore, a number of areas we need to look at in this regard.
I thank the Senator for raising this matter. It is for that very reason that these amendments have been proposed. I will outline amendments Nos. 27 and 28. Amendment No. 27 essentially provides for the same legal provisions, as I have outlined. Amendment No. 28 provides for necessary transitional provisions, as the Senator mentioned. This will ensure the proposed sentencing regime is applied to any outstanding appeals that have yet to be heard and any appeals that may have been heard but where final judgment has not been given.
Amendment No. 27 essentially provides for the same legal provisions, as I have outlined, but deals with DPP appeals against the leniency of a sentence. The net result is the same as provided for in amendment No. 28. A similar exception is provided ensuring that where the DPP appeals an initial sentence in respect of a child who has been convicted of treason or murder, it does not result in the imposition of a mandatory life sentence when the appeal is determined if the person has reached the age of 18. Therefore, the same transitional provisions are also provided for here.
Amendment, by leave, withdrawn.
I move amendment No. 25:
In page 30, between lines 2 and 3, to insert the following:
“Amendment of section 3 of Criminal Procedure Act 1993
50. Section 3 of the Criminal Procedure Act 1993 is amended by the insertion of the following subsection after subsection (2):
“(2A) Where, on the hearing of an appeal against sentence, under subsection (2) the Court quashes a sentence which was imposed on a child, but the convicted person is then no longer a child, the Court may impose a sentence which could have been imposed by the court of trial if the convicted person was no longer a child on the date the sentence was imposed.”.”.
Amendment, by leave, withdrawn.
I move amendment No. 26:
In page 30, between lines 2 and 3, to insert the following:
“Repeal of section 25 of Criminal Justice Act 2007
50. Section 25 of the Criminal Justice Act 2007 is hereby repealed.”.
Amendment, by leave, withdrawn.
Section 50 deleted.
NEW SECTIONS
Government amendment No. 27:
In page 30, between lines 15 and 16, to insert the following:
“Amendment of section 2 of Criminal Justice Act 1993
51. (1) Section 2 of the Criminal Justice Act 1993 is amended by the insertion of the following subsections after subsection (4):
“(5) Where the convicted person in relation to whom an application under this section is made is a person who was under the age of 18 years when the sentence was imposed on him by the sentencing court concerned and he has attained the age of 18 years on or before the date on which the application is determined by the Court, the reference in subsection (3)(a) to a sentence which could have been imposed on him by the sentencing court concerned shall be construed as a reference to a sentence which could have been imposed on him by the sentencing court concerned had he attained that age at the time when the sentence was so imposed.
(6) Where subsection (5) applies and the application under this section is in respect of a sentence imposed on a person convicted of treason or murder before the person has attained the age of 18 years, the Court may, notwithstanding section 2 of the Criminal Justice Act 1990, impose such sentence as it considers appropriate.”.
(2) The amendments of section 2 of the Criminal Justice Act 1993 effected by subsection (1) shall apply in respect of an application under that section that—
(a) is brought on or after the date of the coming into operation of this section, or
(b) has been brought before the date of the coming into operation of this section where final judgment has not been given before that date.”.
Amendment agreed to.
Government amendment No. 28:
In page 30, between lines 15 and 16, to insert the following:
“Amendment of section 3 of Criminal Procedure Act 1993
52. (1) Section 3 of the Criminal Procedure Act 1993 is amended by the insertion of the following subsections after subsection (8):
“(9) For the purposes of subsection (1)(d), where the appellant is a person
who—
(a) was under the age of 18 years when he was convicted and sentenced at the trial, and
(b) has attained the age of 18 years on or before the date on which the appeal is determined by the Court, the sentence that may be imposed on the person by the Court pursuant to subparagraph (ii) of subsection (1)(d) for some other offence and in substitution for the sentence imposed at the trial shall not be deemed to be a sentence of greater severity by reason only of the fact that the sentence could not have been imposed on the person at the trial given that the person was under the age of 18 years at the time of sentencing.
(10) For the purposes of subsection (2), where the convicted person in relation to whom an appeal against sentence is brought is a person who was under the age of 18 years when the sentence was imposed on them by the court of trial and the person has attained the age of 18 years on or before the date on which the appeal is determined by the Court, the reference in that subsection to a sentence or order which could have been imposed on the convicted person for the offence at the court of trial shall be construed as a reference to a sentence or order which could have been imposed on the convicted person for the offence at the court of trial had he attained that age at the time when the sentence or order was so imposed.
(11) Where subsection (10) applies and the appeal against sentence is in respect of a sentence imposed on a person convicted of treason or murder before the person has attained the age of 18 years, the Court may, notwithstanding section 2 of the Criminal Justice Act 1990, impose such sentence or order as it considers appropriate.”.
(2) The amendments of section 3 of the Criminal Procedure Act 1993 effected by subsection (1) shall apply in respect of—
(a) an appeal under subsection (1) of that section against conviction of an offence,
and
(b) an appeal under subsection (2) of that section against sentence for an offence—
where the appeal—
(i) is brought on or after the date of the coming into operation of this section, or
(ii) has been brought before the date of the coming into operation of this section where final judgment has not been given before that date.”.
Amendment agreed to.
SECTION 51
Government amendment No. 29:
In page 31, between lines 12 and 13, to insert the following:
“(b) in section 19(2)(b), by the substitution of “12 years” for “7 years”,”.
This amendment was discussed extensively on Second Stage. It increases the maximum penalty for assault on gardaí and other peace officers from seven years to 12 years. We are all very conscious of the dedication and commitment of our front-line workers and the risks they take in the course of their duties. Recent violent incidents have shocked us all. Any police force, but particularly an unarmed police force, depends on absolute respect for the safety of its officers. We cannot accept any violence at any level. While such incidents are rare, there has sadly been an increase and we, as legislators, must send a very clear message that any such attacks are deplorable and will be dealt with robustly.
I am under no illusion that legislation can be the only answer in this regard. That is also the view of the Minister, Deputy Harris. However, a strong deterrent must be put in place to reinforce the safety of those who put themselves in harm's way to protect the public and to demonstrate our solidarity with them. The penalty for a section 3 assault causing harm is being increased from five years to ten years under the Bill. The increased penalty for an assault of an peace officer under section 19 to 12 years will maintain the existing relationship between the section 19 penalty and the section 3 penalty, reflecting the particular importance of protecting police and other front-line workers from aggression and violence in their role.
I am conscious that good arguments have been made that other particular categories of peace officer should be covered by this provision but I emphasise that the section 19 offence complements the already comprehensive provisions that are in place in respect of assault and that the increased ten-year maximum penalty for assault causing harm will, in itself, constitute an important protection and a deterrent against violence for all members of our society. Members of An Garda Síochána face a particular and unique challenge and this section reflects that.
I did not get a chance to address section 51 on Second Stage but it is a positive measure. I acknowledge the work done by my colleague, Senator Gallagher, in bringing forward Private Members' legislation, although it is not specifically about gardaí alone. This is an important step.
With regard to the existing section 19 offence, I welcome the fact that the penalty is being increased, just as it has been increased for assault. The reality is that, when a judge goes to sentence, per the guidelines or directions set down by the Court of Appeal in various sentencing cases, their job is now to look at the range of sentences available. That runs from the lowest sentence available to the maximum. That creates the range for an offence. The court will then assess where on that range the offence lies, that is, whether it is a low-level, high-level or mid-level offence. That dictates the starting point or headline for any sentence before mitigation, aggravation and so on is applied by the court. I have great faith in our judges' ability to distribute sentences in a way that is proportionate and which reflects the level of the crime. They are experts at doing that and serve us tremendously well in that regard. The job of these Houses is to provide them with guidance as to where we think the range is.
With regard to section 3 of the Non-Fatal Offences Against the Person Act 1997, which relates to assault causing harm, we are changing the range from zero to five years to zero to ten years. That is appropriate. We are putting down a marker that this kind of offending behaviour is not acceptable. We are saying that we are putting a particular focus on it because the effects of assaults on individual citizens are very great. They can cause people not to go out again or not to go into town at night. Whatever it might be, it has a dramatic effect. The same is also true of gardaí. The vast majority of individual gardaí doing their business do so excellently and in service of the State. The Minister made reference to the fact that we have a police force that polices by consent. It does so because it deserves and needs the respect of the community to do that job. We saw the importance of that over the last few years. It is something we do not give enough credit to ourselves for. That, at the time of the foundation of this State, in the midst of a Civil War and out of an armed insurrection that brought about the independence of this State, the people who set up An Garda Síochána, particularly Kevin O'Higgins, Michael Staines and so on, set up an unarmed police force was an extraordinary achievement and they did so at a time when this country probably had more guns in houses, under beds and so on than ever before. That legacy endures 100 years later.
We need to protect the people who go out on the streets without arms and guns to protect all of us, to acknowledge the work they do and to set down a marker to tell people that, if they are going to interfere with the job those people are doing and jeopardise their ability to do that job without carrying a gun or another serious weapon, there will be serious consequences. There are still people in this country who suggest we should have an armed police force. I absolutely reject that. Obviously, we do have gardaí who carry firearms in limited circumstances but the real achievement of An Garda Síochána is that every day its members walk through areas in this country and in this city that are dangerous and they do so because they have an authority that they would not have if they were armed. I really believe that.
We need to recognise that An Garda Síochána does a job that is enormously meritorious, laudable and important because the other side of that coin is what we see happening in America. Armed police forces just escalate situations. If the police officer has a gun, you have to have a gun. All of a sudden, you have a situation where everyone is armed. We see how policing in America has disintegrated, particularly in recent years. There are obviously massive problems with institutional racism in American policing that I hope we do not have here. No police force is perfect but we get a type of service here from An Garda Síochána that we do not see in any other modern developed country. It is really important to acknowledge that gardaí do a job in circumstances that are difficult and, in some cases, dangerous and that, in the vast majority of cases, they do so without weapons. That is as it should be. If we are asking them to do that, we must match them with measures like this to show that we are behind them, that we will protect them and that we will not accept those who seek to interfere or to undermine their job. As I have said, the end of that line is what we see in America, where citizens are at risk from and in fear of their police force. I hope that is not the case here and I hope that will continue for another 100 years and longer.
I very much welcome this amendment. It is appropriate, reasonable and measured. It is also an important recognition of the job gardaí do and the support the State is going to provide for them in recognising assaults against them.
The Government amendment proposes increasing the maximum penalty for assaults on peace officers, that is, members of An Garda Síochána, prison officers and members of the Defence Forces. As with the extension of the penalties available in respect of conspiracy to murder, we are concerned about the effectiveness of increased maximum penalties for assaults against police officers. The Government's high-level task force to consider the mental health and addiction challenges of those who come into contact with the criminal justice sector offers a blueprint for progress regarding support for those with mental health and addiction issues and their diversion away from the criminal justice system. The State should ensure that its recommendations are fully implemented as a matter of priority. I am not sure the amendment being tabled by the Government today is fully reflective of these recommendations. It is our view that improved access to mental health care and a health-led approach to addiction and problem drug use would be more likely to have the desired impact in terms of a reduction in the number of assaults on our peace officers, as would the improvement of their working conditions, which is absolutely vital. I hope the Minister will be in a position to outline any work being undertaken by the Government in these areas.
In speaking to this amendment, I will echo a good deal of what Senator Ward outlined in his contribution. As the Minister will know, I had a Private Members' Bill regarding assaults on emergency workers. It covered a broader range of workers than just gardaí. I am delighted the Minister's Department has now moved on that. I thank the Minister's officials with whom I was in contact - I see Dan here this afternoon - for all of their help and assistance in that regard. We need to send a very strong message to anybody who would contemplate assaulting any of our front-line or emergency workers because they are the people we turn to in an emergency. If we cannot protect them, it is a very sad day.
With regard to Senator Black's contribution, there will be times when there are issues surrounding unprovoked attacks, including mental health and addiction issues.
The courts are well fit to take that into consideration. We need to apologise to nobody for sending the very strong message that anybody who interferes with any of our front-line workers will feel the full wrath of the law. I welcome this legislation and sincerely hope it has the desired effect. There are few professions where one puts on a uniform in the morning and may not take it off in the evening, as is the case for gardaí. They put their lives at risk, as do all our front-line workers, to protect us. The very least we, as legislators, can do is to do the best we can to protect them. I welcome this Bill.
I thank the Senator. As he said, he has worked on this for some time. I also thank my colleague, the Minister of State, Deputy Richmond, who has also worked on progressing this matter. In the past year, we celebrated 100 years of the Garda. As the Senator said, those members go out every day, say goodbye to their loved ones and do not know what they will face on a day-to-day basis. We are sending a clear signal and message to anybody who would stop, thwart, assault, hurt or harm a member who is carrying out his or her duty, which is to keep the rest of us safe. I acknowledge the work of Senator Gallagher and the Minister of State, Deputy Richmond.
I will turn to other areas and how we address these issues. Senator Black is correct that it is not all about sentencing. We must take a holistic approach. That is why we have the community safety partnerships we are working on. We have three pilot areas. They are looking not only at the Garda and the role it has to play when its members are called to the scene of an incident that might involve someone with a mental health problem, but are also looking at the services and how everybody is working together. In particular on weekends, when services are closed, gardaí are called out to specific types of incidents that may include, as the Senator specifically mentioned, someone with a mental health problem. It is about getting to the root cause and trying to prevent the incident from happening but when it does happen, we need to give the Judiciary an option where it sees fit to impose a higher penalty. All factors have to be taken into account in any case and that is the case if someone has a mental health problem or if there is a particular factor that has led to an assault. The crux of the matter is the clear message to the effect that assaults on a member of the Garda or somebody who is working to protect each and every one of us will not be tolerated. I thank my colleagues for their input and significant contribution in this regard.
Amendment agreed to.
Section 51, as amended, agreed to.
Section 52 agreed to.
SECTION 53
I move amendment No. 30:
In page 32, between lines 3 and 4, to insert the following:
"(b) by the insertion of the following paragraph after paragraph 8A:
"8B. An offence under section 4 of the Criminal Justice (Miscellaneous Provisions) Act 2023.",".
Amendment, by leave, withdrawn.
Section 53 agreed to.
NEW SECTION
Government amendment No. 31:
In page 32, between lines 15 and 16, to insert the following:
“Amendment of Criminal Justice (Theft and Fraud Offences) Act 2001
54. Section 36 of the Criminal Justice (Theft and Fraud Offences): Act 2001 is amended by the substitution of the following subsection for subsection (3):
"(3) A person guilty of an offence under this section is liable on conviction on indictment to a fine or imprisonment for a term not exceeding—
(a) in the case of an offence under subsection (1), 10 years, or
(b) in the case of an offence under subsection (2), five years, or both.".".
Amendment agreed to.
I move amendment No. 32:
In page 32, between lines 15 and 16, to insert the following:
“Amendment of section 151 of Children Act 2001
54. Section 151 of the Children Act 2001 is amended by the substitution of the following subsection for subsection (3):
"(3) Subject to subsection (4), the Court shall specify, in its absolute discretion, which portion of a period for which a detention and supervision order is in force shall be spent by the child in detention in a children detention school and which portion under supervision in the community.".".
Amendment, by leave, withdrawn.
Section 54 agreed to.
NEW SECTION
Government amendment No. 33:
In page 32, between lines 22 and 23, to insert the following:
"Amendment of Garda Síochána Act 2005
55. Section 122(5)(b)(ii) of the Garda Síochána Act 2005 is amended by the substitution of "section 51(2)(d)" for "section 51(2)(b)".".
On Report Stage, there will be an amendment to section 55 to facilitate the appointment of a deputy chairperson to the mental health review board.
Amendment agreed to.
Sections 55 and 56 agreed to.
NEW SECTION
I move amendment No. 34:
In page 33, between lines 5 and 6, to insert the following:
"Amendment of section 99 of Criminal Justice Act 2006
57. Section 99 of the Criminal Justice Act 2006 is amended by the insertion of the following subsection after subsection (23):
"(24) In criminal proceedings involving a person who, at the time the offence was committed, had not reached the age of 18 years, the provisions of this section shall apply as if the term ‘imprisonment’ were ‘detention’.".".
Amendment, by leave, withdrawn.
Sections 57 and 58 agreed to.
I will introduce amendments on Report Stage to facilitate the provision of assistance to the European Public Prosecutor's Office.
NEW SECTIONS
Government amendment No. 35:
In page 33, between lines 24 and 25, to insert the following:
"Amendment of Schedule 3 to Broadcasting Act 2009
59. Schedule 3 to the Broadcasting Act 2009 is amended—
(a) by the insertion of the following paragraph after paragraph 11:
"11A. Online content by which a person without lawful excuse, intentionally or recklessly, causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to suffocation or strangulation, contrary to section 3A(1)(b) of the Non-Fatal Offences against the Person Act 1997.”,
(b) by the substitution of the following paragraph for paragraph 13:
"13. Online content by which a person harasses another contrary to section 10(1), stalks another contrary to section 10(2), or breaches an order made under section 10(4), of the Non-Fatal Offences against the Person Act 1997.”, and
(c) by the insertion of the following after paragraph 42:
"Criminal Justice (Miscellaneous Provisions) Act 2023
43. Online content by which a person breaches an order made under section 27 of the Criminal Justice (Miscellaneous Provisions) Act 2023.”.”.
This amendment provides for consequential amendments to the Broadcasting Act 2009 and the Online Safety and Media Regulation Act 2022. It follows the pattern in those Acts of scheduling matters that might be subject to regulation of online media. It covers the new offences provided for in this Bill relating to stalking, harassment and non-fatal strangulation. The effect of this is to allow the online safety commissioner, working under Coimisiún na Meán, to develop online safety codes which require certain online platforms to minimise, at a systemic level, the availability of online content by which a person commits any of the offences covered. These codes will set out standards that online platforms must follow in relation to user complaints relating to this type of content.
Amendment agreed to.
Government amendment No. 36:
In page 33, between lines 24 and 25, to insert the following:
"Amendment of Communications (Retention of Data) Act 2011
60. The Communications (Retention of Data) Act 2011 is amended—
(a) in section 1(1), in paragraph (d) of the definition of "superior officer", by the substitution of "Commission" for "Authority" in each place where it occurs,
(b) in section 3A(8), by the substitution of "Schedule 2" for "Schedule 2 data" in each place where it occurs,
(c) in section 4(1), by the substitution of "retains or preserves" for "retains",
(d) in section 6—
(i) in subsection (3)(a), by the substitution of "officer" for "member", and
(ii) in subsection (4)(a), by the substitution of "officer" for "member",
(e) in section 6B—
(i) in subsection (9), by the substitution of "Subject to subsection (15), a superior officer" for "A superior officer", and
(ii) in subsection(15)(b), by the substitution of "subsection (9)" for "subsection(10)",
(f) in section 6D(11), by the substitution of "Subject to subsection (17), a superior officer" for "A superior officer",
(g) in section 6E(5), by the substitution of "section and section 6F," for "section,",
(h) in section 6F(1)—
(i) by the substitution of "Commission" for "Authority", and
(ii) by the substitution of "disclose to the member or officer concerned Schedule 2 data, internet source data or cell site location data, as the case may be" for "disclose to the member Schedule 2 data or, as the case may be, internet source data",
(i) in section 7A(7), by the substitution of "officer" for "member",
(j) in section 7B—
(i) in subsection (5)(b)—
(I) by the substitution, in subparagraph (i), of "unavailable, or" for "unavailable,",
(II) by the substitution, in subparagraph (ii), of "impeded." for "impeded, or", and
(III) by the deletion of subparagraph (iii),
(ii) in subsection (15), by the substitution of "subsection (21)" for "subsection(18)", and
(iii) in subsection (16), by the substitution of "subsection (15)" for "subsection(21)",
(k) in section 7D(5)(b)—
(i) by the substitution, in subparagraph (i), of "unavailable, or" for "unavailable,"
(ii) by the substitution, in subparagraph (ii), of "impeded." for "impeded, or", and
(iii) by the deletion of subparagraph (iii),
(l) in section 9—
(i) in subsection (1), by the substitution of "7C or 7D" for "7C(1) or 7D(1)",
(ii) in subsection (2), by the substitution of "7C or 7D" for "7C(2) or 7D(2)",
(iii) in subsection (3), by the substitution of "7C or 7D" for "7C(6) or 7D(6)",
(iv) in subsection (3A), by the substitution of "7C or 7D" for "7C(7) or 7D(7)", and
(v) in subsection (5)(c), by the substitution of "date on which the disclosure requirement was made" for "disclosure requirement",
(m) in section 10(10), by the substitution of "the requirement" for "the request",
(n) in section 12—
(i) in subsection (2)(b), by the substitution of "requirement" for "request",
(ii) in subsection (3), by the substitution of "the requirement" for "the request",and
(iii) in subsection (4), by the substitution of "disclosure requirements" for "disclosure requests",
(o) in section 12A(1), by the substitution of "section" for "sections",
(p) in section 12F(2), by the substitution of the following paragraph for paragraph(c):
"(c) the procedures for making a requirement under section 6 or 6F and for making an application under section 6A, 6B, 6C, 6D, 6E, 7A, 7B, 7C or 7D.",
(q) in section 12G(3)—
(i) by the substitution of the following paragraph for paragraph (b):
"(b) an authorisation issued under section 6B," and
(ii) by the substitution of the following paragraph for paragraph (d):
"(d)a temporary production order made under section 7D(3).”,
(r) in section 12I—
(i) by the substitution of "Commission" for "Authority", and
(ii) by the deletion of "6E(1),", and
(s) in section 12J(2), by the substitution of "section" for "sections".".
Amendments Nos. 36 and 38 are intended to correct a number of technical issues in the Communications (Retention of Data) (Amendment) Act. Apart from correcting certain drafting and cross-referencing issues, they will allow for the data retention reforms of the 2022 Act to be commenced with the Competition and Consumer Protection Commission. It will also allow for the 2022 reforms to be commenced with the Revenue Commissioners in respect of the category of user data. I will table a number of small amendments in this area on Report Stage.
Amendment agreed to.
Section 59 agreed to.
NEW SECTION
Government amendment No. 37:
In page 33, between lines 27 and 28, to insert the following:
"Amendment of Schedule 1 to Criminal Justice (Forensic Evidence and DNA Database System) Act 2014
60. Schedule 1 to the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 is amended—
(a) by the repeal of paragraph 1(5),
(b) in paragraph 1(7), by the substitution of "human rights, data protection" for "human rights", and
(c) in paragraph 2(6), by the deletion of "and the person nominated for appointment by the Data Protection Commissioner".".
The amendment provides for a change in the composition of the DNA database system oversight committee. The provision being repealed provided for a member of the committee to be appointed by the Data Protection Commissioner. The Data Protection Commission has raised concerns around this provision and its compatibility with the fundamental requirement of the commission to be completely independent in the performance of its tasks. The repeal of this section will address this concern. In its place, we are making provision for the Minister in appointing ordinary members of the committee to have regard for the need for data protection expertise.
Amendment agreed to.
Sections 60 to 62, inclusive, agreed to.
NEW SECTION
Government amendment No. 38:
In page 34, after line 12, to insert the following:
"Provision relating to insertion of sections 6A to 6F of Communications (Retention of Data) Act 2011
63. It is hereby confirmed that, notwithstanding section 6 of the Communications (Retention of Data) (Amendment) Act 2022 ("Act of 2022"), sections 6A to 6F contained in section 6 of the Act of 2022 were, on the date on which section 6 of the Act of 2022 came into operation, inserted into the Communications (Retention of Data) Act 2011 after section 6 of that Act."
Amendment agreed to.
TITLE
Government amendment No. 39:
In page 5, lines 15 and 16, to delete "and the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014".
Amendment agreed to.
Government amendment No. 40:
In page 5, line 17, after "1992," to insert "the Criminal Justice Act 1993, the Criminal Procedure Act 1993,".
Amendment agreed to.
Government amendment No. 41:
In page 5, line 18, after "1997," to insert "the Criminal Justice (Theft and Fraud Offences) Act 2001,".
Amendment agreed to.
Government amendment No. 42:
In page 5, line 18, after “2006,” to insert the following:
"the Broadcasting Act 2009, the Communications (Retention of Data) Act 2011, the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014,".
Amendment agreed to.
I wish to flag in respect of section 23 that I will introduce Report Stage amendments providing for restrictions on the publication of the identity of alleged victims of harassment and stalking offences under the section. I am sorry but I missed that section when we were going through the Bill.
I probably rushed the Minister.
Not at all. It is good to get it done.
Title agreed to.
Bill reported with amendment.
When is it proposed to take the next Stage?
Next Tuesday.
Is that agreed? Agreed.
Report Stage ordered for Tuesday, 4 July 2023.
Cuireadh an Seanad ar fionraí ar 2.21 p.m. agus cuireadh tús leis arís ar 2.31 p.m.
Sitting suspended at 2.21 p.m. and resumed at 2.31 p.m.