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SELECT COMMITTEE ON JUSTICE, DEFENCE AND EQUALITY debate -
Wednesday, 4 Jul 2012

Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Bill 2012: Committee Stage

We have a quorum. This meeting has been convened to consider the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Bill 2012. Apologies have been received from Deputy Alan Farrell. I welcome the Minister and his officials to this meeting. A grouping list has been circulated. I ask members to ensure their mobile phones are switched off as they interfere with the recording system, even if on silent mode.

For the information of the committee, amendment No. 12 in the name of Deputy Jonathan O'Brien has been disallowed. I understand Deputy O'Brien has been informed about that. It would impose a charge on the Exchequer and therefore it cannot be taken.

SECTION 1

I move amendment No. 1:

In page 3, subsection (1), between lines 30 and 31, to insert the following:

" "reasonable excuse" shall include for the purposes of this Act consensual, non-exploitative sexual activity where there is an age difference of not greater than two years between the parties;".

I have put down a number of amendments to give us an opportunity to discuss some of the issues I want to raise. I tabled this amendment for two reasons, the first of which is the reality that there are teenagers under the age of consent who engage in sexual activity. There is no point in trying to deny that. Under this legislation a situation could arise in which those individuals who are engaged in consensual sexual activity may fear going to a doctor to get protection or, God forbid, if somebody fell pregnant they may be slow to seek help because, from my reading of this legislation, there would now be an onus on that doctor, other professional or counsellor to report that activity to members of An Garda Síochána. I tabled this amendment to allow us to address that issue because, while I am not encouraging that type of activity, it is the reality. I do not want a situation to arise in which people are afraid to get advice, seek counselling or take proper precautions with regard to their sexual activity, but that fear could be created under this legislation.

I will begin by thanking Deputy O'Brien for this amendment and the other amendments he has tabled, which give us an opportunity to constructively tease out various issues in the Bill. It is always valuable to have the opportunity to do that.

The amendment the Deputy is proposing is very similar to an amendment proposed by Senator van Turnhout during the Seanad Committee Stage consideration of the Bill. The amendment raises an important issue concerning sexual relations between young persons and the need to avoid criminalising young people who engage in consensual, non-exploitative sexual behaviour with members of their own peer group as part of the normal process of growing up.

Unfortunately, as I stated during the Seanad debate, I must oppose the amendment as I expect to bring this matter to the Government shortly in the context of the development of separate legislation to update the law on sexual offences. This issue would be more appropriately dealt with in the context of a sexual offences Bill. Among other matters, the sexual offences legislation being prepared will address in a comprehensive way the recommendation of two Oireachtas committees, including the Joint Committee on the Constitutional Amendment on Children, which examined this issue and of which I was a member. I can assure the Deputy this matter is being examined. However, it cannot be effectively addressed by the withholding of information Bill. In that context, I point out that under section 2(3) of the Bill, the child against whom an offence is committed cannot be guilty of an offence for withholding information. In addition, where the child makes known his or her view that the offence should not be reported to the Garda, this provides a legitimate defence for any other person who does not report the offence. These defences mean that there is no requirement to report consensual sexual behaviour between two persons under the age of consent.

To address directly the specific example the Deputy gives, if a young pregnant girl under the age of consent seeks medical help, she can inform the medic that she does not wish the matter communicated to the Garda Síochána and therefore there would be no specific obligation on the medic to report the matter. In the context of the medic's position, there is no possibility of him or her being successfully prosecuted. There are also specific provisions and defences in the legislation relating to medical practitioners.

I acknowledge that what the Deputy says is correct. The age of consent is 17 but there are under-age individuals who are actively sexually engaged. We know that from statistics that are available about under-age pregnancies. It is an issue that gives rise to different views across the community - for example, what the actual age of consent should be. This was discussed at enormous length in the joint committee, including the question of whether criminal law should be invoked in the case of two under-age individuals of approximately the same age who engage in consensual sexual activity. It is fair to say there were differences of views in some of these areas within the joint committee; there were differences of views within individual political parties as well in the context of the discussion. Substantial work is being done on a new sexual offences Bill. I optimistically hope, knowing all of the pressures Department officials and the Attorney General's office are under, that we will be publishing that Bill in the late autumn or certainly before the Dáil goes into recess at Christmas, and it will be debated in the new year. With the forthcoming European Presidency I must give a health warning about timeframes for legislation that might be published in the fourth quarter of 2012. I am anxious not to mislead anybody about that. However, substantial work has been done. This is an issue more appropriately addressed in that Bill and when it is addressed it will have an automatic impact on the manner in which the Bill under discussion works.

I thank the Minister. I tabled these many amendments because I felt we needed to tease out some of the issues, but the Minister is saying the matter I raised in this amendment will be addressed under the new legislation which we hope to see next year. In the meantime, the Minister is saying section 2(3)-----

Section 2(3) states, "The child against whom the Schedule 1 offence concerned was committed ... shall not be guilty of an offence under this section." If the suggestion is that a young pregnant girl would not seek medical assistance for fear that she might be criminally prosecuted, it is unfounded because this could not happen. The Bill makes it quite clear that the girl would not be guilty of an offence. Where there is a concern that a doctor, informed as to the identity of the father, might be obliged to inform the Garda despite having been asked that the matter not be reported, there is a defence under the legislation. This will not add a layer whereby third-party individuals could be criminalised in such circumstances. The legislation should provide no barrier or difficulty for members of the medical profession or those engaged in counselling or social work, with whom we will deal under another section, in respect of their being obliged to report in circumstances where a so-called victim who has had consensual relations does not want a report made. This is one of the big issues in regard to this Bill. We all debated on Second Stage the importance of ensuring reporting takes place where sexual predators are preying on children and we discussed the difficult grey area of not creating a barrier to a victim seeking counselling or medical help. Based on the hearings of this committee and the views expressed, the outcome was that one ought not to erect a barrier to the victim getting help. The legislation addresses the Deputy's issue.

The Ombudsman for Children raised this in her submission. One reason she did so was that she felt, in order to remove all doubt about what I have described, it was appropriate to include a provision with regard to a reasonable excuse. I take on board what the Minister said, however.

It is all well and good to assume we and members of the medical profession will know the ins and outs of the legislation but two underage individuals engaged in consensual sex may not know about its impact. While it is fine to say a girl may tell her medical practitioner she does not want a matter reported, it is feared she will not approach the medical practitioner in the first instance. When the Bill is enacted, it will be important, in our communications and publicity, to highlight these points to ensure nobody will be left in doubt.

I agree with the Deputy that it is important that there be reasonable public understanding of this legislation. I am very conscious it is complex and that it needs to be such to address some of the more difficult issues that arise. There obviously will be a need to ensure it is understood, not just by professionals but also by the general public. In conjunction with the Minister for Children and Youth Affairs, perhaps, we will have to determine how best to achieve this and implement the legislation when enacted.

Amendment, by leave, withdrawn.

Amendments Nos. 2 and 5 are related and may be discussed together.

I move amendment No. 2:

In page 3, subsection (1), between lines 30 and 31, to insert the following:

" "sacerdotal communications" means communications between a person and a member of the clergy of any religious faith, including but not limited to communications in a confessional setting and counselling;".

One reason I tabled this amendment was to tease out whether sacerdotal communications enjoy privilege, on which subject there has been much public debate. Perhaps the wording needs to be reviewed but I believe this amendment is necessary to remove any doubt about the obligation of a member of the clergy to report information relevant to an investigation. I will probably press this amendment and am, therefore, interested in hearing the Minister's comments thereon.

Amendment No. 5 is based on reading the submission made by the Ombudsman for Children. She raised some issues on privilege and I tabled the amendment to remove any doubt. The submission refers to the Judicial Separation and Family Law Reform Act, under which a court may adjourn an application for a judicial separation to allow the parties to consider reconciliation or reach agreement on the terms of a separation. Any communication made in this context, including with the mediator, is not admissible in any court. The same applies to the Family Law (Divorce) Act 1996. I wish to remove any element of doubt in this regard.

I thank the Deputy for raising these issues. There was a little confusion on the part of the Ombudsman for Children as to how some of the measures to which she made reference apply in practice. I refer in particular to the measure in the Judicial Separation and Family Law Reform Act, which is replicated in section 9 of the Family Law (Divorce) Act 1996.

Amendment No. 5 seeks to override certain statutory provisions concerning the protection of information. I cannot accept these amendments. There are a number of technical difficulties with the wording of amendment No. 5 that would make it unworkable, if accepted. However, it is on a number of policy grounds, both general and specific, that I am unable to accept the amendments.

On a general level, I believe there has been too much made of the relevance or impact of privilege on proceedings under this Bill. If I had had serious concerns, I would have reviewed all the privileges that may arise with a view to determining which should be retained or removed. I do not, however, have such concerns. For instance, the circumstances reported in the Cloyne report do not involve any claim as to privilege, nor does the reported situation of the taking of statements from boys who were abused by a priest and who were subsequently sworn to secrecy. There is no claim of privilege that could have been relied upon in those circumstances.

I have more specific reasons for refusing to accept the amendment. Before discussing these, it is worth noting the Murphy report on Dublin and the Ryan report did not at any point indicate that any information that was withheld was withheld because of any claim of any nature of sacerdotal privilege. The information was withheld basically as a cover-up by those in religious authority for their own ends and purposes. At no stage is it suggested, or was it suggested, to the Murphy or Ryan commissions that the failure of either junior or senior religious figures to disclose information was in the public interest. There is clearly scandalous self-interest that left children seriously at risk, but there was no public interest.

Subsection (6)(a), as referred to in amendment No. 5, refers to the privilege provided in section 7(a) of the Judicial Separation and Family Law Reform Act and section 9 of the Family Law (Divorce) Act 1996. It is worth making the point that the scope of the privilege provided in these sections is very limited and discrete. It refers specifically to communications for the purpose of seeking assistance to effect a reconciliation or to reach agreement between the spouses on some or all of the terms of a separation or divorce. I do not consider that an admission of child abuse could be reasonably interpreted as being encompassed within that privilege. Moreover, under the 1989 Act there never has been a suggestion in the myriad of cases in which I was involved as a legal practitioner, that if during the course of a mediation process a serious allegation was made that a parent, be it the husband or wife, had abused a child, such an allegation would fall within this privilege so as to prevent a report being made. Indeed, under section 3 of the Guardianship of Infants Act 1964, there would be an overriding obligation to regard the welfare of the child as paramount. Consequently, a misunderstanding of the privilege, both in the 1989 Act and in the 1996 Act, has given rise to the concern in respect of the application of that privilege as a statutory privilege.

Paragraph (b) of amendment No. 5 seeks to override the secrecy of information provision contained in section 16 of the Ombudsman for Children Act 2002. That particular provision expressly provides: “Section 9 of the Act of 1980 [that is, the Act relating to the general Ombudsman if I may so phrase it] shall apply to information, documents or things obtained by the Ombudsman for Children or members of his or her staff under this Act as it applies to information, documents or things obtained by the Ombudsman or his or her officers under that Act with any necessary modifications.” If one then goes back to section 9 of the Ombudsman Act 1980, the sidenote to which is secrecy of information, section 9(1) refers to “Information or a document or thing obtained by the Ombudsman or his officers in the course of, or for the purpose of, a preliminary examination, or investigation, under this Act shall not be disclosed except for the purposes of— “. It then goes on to list a number of purposes. One such purpose is “the examination or investigation and of any statement, report or notification to be made ... under this Act” and thereafter, it proceeds to deal with the Official Secrets Act.

The interesting point is if one was to juxtapose and apply the provisions of section 16 together with the provisions of section 9 and if the Ombudsman for Children was dealing directly with a specific allegation of child abuse, this legislation expressly provides the ombudsman may reveal that information in a report. I believe the impact of this has not been fully understood because section 9 of the Ombudsman Act 1980 is about allowing information or documentation obtained by the ombudsman to be disclosed for the purposes of producing a report. Quite expressly, that is one thing for which it can be produced. Consequently, if the Ombudsman for Children had a concern about a child being the victim of abuse, the ombudsman could quite promptly produce a report, which presumably would be a written report, and clearly would be expressly free to provide this to the Garda Síochána or simply to publish it.

The ombudsman might well, under the remit, decide a better way to proceed in such circumstances was to report it to the Garda. However, I do not perceive the workings of those sections as in any way creating a difficulty in the context of this Bill or certainly not as creating a privilege. However, members should remember what the privilege is about. It is about someone who knows a child has been abused failing to give information to the Garda about the abuse to facilitate an investigation. The privilege is about a defence against him or her being prosecuted for failing to report. I do not believe anyone could credibly suggest the Ombudsman for Children, in circumstances in which she has an expressed statutory right to publish reports in a way she deems appropriate, is likely to be prosecuted for failing to report abuse and would then invoke a privilege to defend herself. It is so bizarre it simply will not happen. Again, I believe there is a misunderstanding of how this legislation will work. Generally, again dealing with the position of the Ombudsman for Children, it is not my view that it is appropriate for a criminal justice Act effectively to make an amendment to the Ombudsman for Children legislation. I noted that in her advices on the Bill, the Ombudsman for Children has suggested the sort of amendment the Deputy has proposed. However, I do not believe such an amendment is either necessary or appropriate.

Paragraph (c) seeks to override the right to marital privacy contained in section 26 of the Criminal Evidence Act 1992. I also consider this to be unnecessary because Part IV of the Criminal Evidence Act 1992 introduced provisions into Irish law concerning the competence and compellability of spouses to give evidence at the behest of the prosecution. Spouses so willing to testify were deemed competent to so do and those unwilling were compellable by the prosecution in cases involving violence or the threat of violence or where a sexual offence has been alleged to have been committed in respect of the spouse, a child of the spouse or any other person who, at the material time, was under the age of 17 years.

Finally, paragraph (d) of the amendment returns members to the much-debated sacerdotal privilege issue, on which I wish to make a number of comments. First, the extent or otherwise to which sacerdotal privilege actually exists in Irish law, and more so is of relevance to criminal cases, is entirely uncertain. What is known is that privilege of any form is subject to specific criteria known as the Wigmore criteria, which were directly referred to in a case of which the Deputy would be aware, namely, the Cook v. Carroll case. In order for privilege to be recognised in that particular judgment, the judge who delivered the judgment, Mr. Justice Gavan Duffy, detailed four particular elements. However, before going into them, it is worth stating and emphasising that Cook v. Carroll was a civil case. It was a very particular case in which it was alleged a parishioner had had sexual intercourse with a young woman, who was pregnant. The young woman made the allegation that the parishioner was the father. The parishioner denied he was the father and the parish priest then intervened. They held a confidential meeting, that is, a meeting all three agreed would be confidential, to ascertain whether, in the way the court case is reported, one or other would make admissions, that is, would the alleged father admit he was the father or would the pregnant woman accept he was not.

I wish to emphasise this point - because of the media hype surrounding it - but the overriding impact and influence of this judgment was that Mr. Justice Gavan Duffy clearly was of the view that, because of the special position of the Catholic Church as then contained in the Constitution, this gave the priest all sorts of privileges in such circumstances. Despite that being his view, he made reference to what I referred to as the Wigmore principles, which derived from a book on the law of evidence called A treatise on the Anglo-American system of evidence in trials at common law, the third edition of which was published in Boston in 1940. It dealt generally with the laws of evidence and issues of privilege and it set out a number of points. For a communication to be privileged - again I emphasise this pertains to civil law - the communication must originate in a confidence that will not be disclosed. Consequently, taking the background circumstances that are relevant to these proceedings, in the case of someone who goes and reports to the local bishop that a priest has been sexually abusing his or her son or daughter, he or she wants that bishop to do something about it and is not going there to deliver that report as a confidence. Such people are making such a report to tell the bishop they want him to act, to take disciplinary procedures and to ensure children are protected. This does not fall within any concept of sacerdotal privilege and in so far as Mr. Justice Gavan Duffy suggested there was some sort of overarching privilege which attached to every communication between a priest and a parishioner, this clearly was knocked on the head very severely by Mr. Justice Geoghegan in a court case that went from the High Court up to the Supreme Court called Johnson v. the Church of Scientology, in which that issue was addressed. Therefore there is not, as I think someone in the IrishDaily Mail suggested not so long ago, some sort of privilege whereby if one says anything to a priest this is privileged simply because the person is a priest. There is no such sacerdotal privilege. I will come back to a problem with the Deputy’s amendment which is derived from that.

The second element was that confidentiality must be essential to the full and satisfactory maintenance of the relation. If one is reporting to the local bishop that a parish priest has been abusing a child, and one wants him to take action, under this legislation there will be an obligation on the bishop to take action and, if there is a sound belief that this has happened, to report it to the gardaí. There could be no suggestion that that would fall into the element of a conversation to which confidentiality is essential. Quite clearly it does not apply.

The third element is that the relation must be one which, in the opinion of the community, ought to be sedulously fostered. I have no idea what that means or its relevance in the context of the issues we are dealing with in this Bill. Quite clearly it has no relevance at all. While it may not be quite the diplomatic way of putting it, the killer blow to the idea that this is something the courts will uphold is in principle four: "The injury which would inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation". Does anyone today credibly believe that if a child is the victim of abuse, the courts are likely to say "Well, the injury that could result from someone disclosing that is so great, in the context of communication issues between the church or a member of the church and a parishioner, as to justify the concealment of a child's being abused"? I think the general view and the view of the courts will be that the protection and welfare of children are of greater importance.

These are the principles that were particularly addressed in this judgment. By the way, they are principles that I have not seen addressed or discussed in a single newspaper article written about this issue since the Bill was published. I think the circumstances highlighted in recent times concerning information disclosed to priests and not reported to the gardaí would not, on the basis of these criteria, give rise to any form of privilege.

I emphasise that the circumstances in which a privilege would arise are very limited; they would only arise if there was a public interest in upholding the privilege. I think the overriding public interest nowadays, as perceived by the general public and as will be perceived by the courts, is the protection of children. Given the competing public interest in protecting children from physical and sexual assault, I cannot foresee circumstances in which this privilege would be applied and would be relevant. As I have repeatedly said, though, it would ultimately be a matter for our courts to determine.

It is also worth pointing out dangers in where the Deputy is going with the amendment he is proposing, although I know that is not his intention. His intention is to tease out this issue and I think it is valuable that we should do so. However, in his proposal, the Deputy gives a definition of sacerdotal privilege of which no doubt Mr. Justice Gavan Duffy would have approved in 1945. It is certainly very broad and is the one that was shot down by Mr. Justice Geoghegan in the later case. What I mean is that if there is such a thing as sacerdotal communication in law, it is confined to something said in the confession box. That is quite clear from the judicial provisions that are there.

In the Deputy's amendment, sacerdotal privilege is defined as meaning "communications between a person and a member of the clergy of any religious faith, including but not limited to communications in a confessional setting, and counselling". So this is a definition of sacerdotal privilege including any communication of any nature and of any description between an individual and any individual who is a clergy of any religious faith; I presume that applies to imams, rabbis and everyone else. It is creating a type of privilege that is in fact completely unknown to the law, which is saying that one cannot claim it. The reality is that it does not exist in that form.

What is the position with regard to the confessional? In our criminal law we do not have a case in which someone has been told that if they have information of relevance to criminal proceedings, because he or she was told this in the confessional, it is privileged and he or she does not have to tell the courts about it. We do not have a decision that lays that down. We have the Offences Against the State (Amendment) Act 1998, which creates a similar offence of withholding information across a broad range of criminal areas where information should be given to the gardaí. Of course, the reason we have this legislation is that the area of sexual assault was excluded from that. On Second Stage, I said that we were filling a major gap that was left in our law. However, if there was a problem in the area of the confessional one would have to go back to the 1998 Act. The latter Act does not regard that there is any need for this form of amendment. The Criminal Justice Act 2011 dealt with the withholding of information concerning white-collar crime. It was similar legislation and there was no need to address this particular issue. Effectively, therefore, it is my view that the Deputy's amendment is substantially flawed for the various reasons I have given. I cannot accept the amendments.

The definition of sacerdotal privilege is dangerous because it throws up the possibility of a far broader privilege than could ever be properly claimed. If at some future stage someone claims privilege because he or she was told something in the confessional, it will ultimately be for the courts to determine that. There are a number of other privileges that people may claim but ultimately the issue will be in the context of the objectives of this legislation: the public interest in protecting the welfare of children, and the public interest in prosecuting individuals who have abused children or vulnerable adults, or have committed any of the other offences in the First or Second Schedules that apply to children or vulnerable adults.

Where does the public interest lie? In this legislation, it lies in not recognising or granting any specific privileges or exceptions to privileges that are theoretical but do not exist, or have not yet been recognised within our criminal law. For all of those reasons, I am afraid that I cannot support the Deputy's amendment.

I thank the Minister for the workshop. I agree with where he is coming from but I am concerned that the two cases he referred to - involving the judgments by Mr. Justice Gavan Duffy and Mr. Justice Geoghegan - did not involve the confessional. Am I to take it that, to a certain extent, they were chats around the fireside?

Even though it has not been challenged here, what is the international standing of confession - I do not know if the Minister knows either from his current job or his previous life - in terms of European law, European human rights or international law? Is the Minister satisfied that if there were to be a challenge to this legislation under any international criteria, it would be robust enough to withstand that?

No sensible Minister could ever predict with absolute certainty what courts will do - either in a European context under the European Convention on Human Rights or in the context of our own Supreme Court - with issues that have not been litigated upon before. There is a balance of rights and a proportionality as to how one approaches issues. Our own Constitution contains the right to freedom of religion but it is circumscribed and conditional on certain issues relating to public policy and public order.

Looking further at our Constitution, we can see there are some implicit rights for children - not explicit, although that is where we will come to with the children's referendum. In the context of the European Convention on Human Rights, I am not aware of a case in which this has arisen. Could it arise? Of course, a competent lawyer might argue one side of this issue and another competent lawyer may argue the other. The practical approach is not to elevate this privilege as having an importance it does not have. It has not been an issue under the 1988 Act that has been in place for 24 years. We did not regard it as an issue when we dealt with the Criminal Justice Act.

It is an interesting issue here because of the dreadful scandal of the betrayal of children being sexually abused by individuals in religious orders. There was then the added scandal of the cover-up and the failure to report this abuse. I come back to the practical reality and common-sense approach to this legislation. We have had so many inquiries examining the horrors of what happened with abuse. I keep on mentioning the Ryan and Murphy reports. With all the horrors and revelations, at no stage was there a single instance of a suggestion that information was withheld because it was only learned of in the confessional. In all of the instances where information was withheld, it was withheld because it suited those in religious positions to do so and avoid scandal. They gave greater attention and concern to avoiding scandal than to the welfare of children. The communications could all have been properly reported to An Garda Síochána while no issue of the confessional arose.

This is an interesting issue from a theoretical perspective and makes a good tabloid headline. However, in the context of the objectives of this legislation, I do not believe we need to do any more than we have within the existing provisions. There are certain areas that must be left for the courts to deal with in a constitutional context should they arise and to balance rights and public interest.

I come back to the Wigmore principles which were detailed in the civil case of Cook v. Carroll. If this were applied to a circumstance in which a child was the victim of abuse, if the abuse was reported to someone in religious life and he or she believes it to be true, then under the greater good and interest, and under the fourth of the Wigmore principles, there is an obligation to report. If one does not report in these circumstances, one is liable to be criminally prosecuted if it was to become known. I do not believe we can do more than we have done in the legislation as it is. Furthermore, for a whole series of other reasons that I have already given, I cannot accept the Deputy’s amendment.

I appreciate the Minister's comments. The reason I put down this amendment is that I want nobody to be left under any impression that there is any form of privilege when it comes to reporting child abuse. If there are members of religious orders who, for whatever reason whether it is right or wrong, are under the impression that anything said to them in a confession box is privileged, then we need to ensure they are clear on their moral and legal obligations to report child abuse as a result of this legalisation. I fully accept the wording of the amendment is not perfect. I am hoping, however, as a result of this debate that the Minister will look at it again for Report Stage.

There is a need to remove any element of doubt in any individual's mind. I agree with the Minister that in the reports into child abuse there was never a suggestion that any of that information was withheld for any other reason than to cover up their own shortcomings and behaviour. I want to be sure, however, that no one is under the impression that if information on child abuse is given to them in a confession box that they have a privilege not to disclose that information for some personal or religious belief.

The media can look for headlines but I am not interested in sensationalising this issue. This is about the protection of children and ensuring every corner is cut off. The Minister said that no sensible Minister can predict the outcome of future court cases. However, every sensible Minister and Member can try to ensure the legislation passed is rock solid and robust enough never to come to a situation where someone may have to go to court to claim he or she had privilege under the setting in question.

The central objective of this legislation is to ensure people in this State who have information that results in them believing or knowing that a child or a vulnerable person has been the victim of abuse or the other offences listed in the two Schedules must understand they are under an obligation to furnish that information to An Garda Síochána. I emphasise it applies to everyone. However, if some particular case arises in the future, one cannot prevent individuals defending themselves with the assistance of the lawyers making a particular case on which the courts have to adjudicate. The legislation, as we have it, is in the best form in accordance with the advice I have received to address the issues we are seeking to address and meet the Bill's objectives.

There is no unique way of drafting legislation and there are always different ways of how one deals with a particular issue. The advice I have is that this is the correct and best way to proceed. The message should go out that if individuals have solid information of a child being abused, then they should give it to An Garda Síochána. There are not exceptions but defences in the context of the Bill's provisions which deal with cases where a victim asks a medic or a counsellor not to report.

The legislation is in the best form we believe it can be. I believe there is a genuine commitment and agreement on all sides of the House that we must have different laws enforced to ensure the failures of the past are not repeated. If individuals in the future connive or conspire to conceal the abuse of children, they themselves, by virtue of their conduct, will become liable to criminal conviction.

Amendment put and declared lost.
Question proposed: "That section 1 stand part of the Bill."

A vulnerable person is described as an individual "who has an intellectual disability which is of such a nature or degree as to severely restrict the capacity of the person to guard himself or herself against serious exploitation or abuse, whether physical or sexual, by another person." The Minister will be aware this committee has been dealing with mental capacity legislation. How will this Bill interact with the forthcoming Bill in that area? What definition of "capacity" will be used? Will it need to be amended in the other legislation?

Work is still being completed on the other legislation. We very much appreciate the work the committee did on it and a substantial amount of work is continuing. All I can say is we will try to ensure synergy between the Bills in so far as it is required. The other Bill in preparation is very large and we hope in the not too distant future to be in a position to publish it. I do not know whether it will be published this side of August but we will address this issue. In the context of this Bill the definitions are appropriate to its objectives.

The definitions as in the-----

No, in the context of the Bill before us today, the definitions we have are appropriate. Some matters with regard to definitions are still being finalised in the context of what was formerly known as the mental capacity Bill. We will change the name of the Bill also based on further consideration given to it.

As the Minister knows, the definition of "capacity" was a central issue-----

Yes, very much so

-----with which we grappled which is why I spotted it here.

I have a question on the issue of people making false allegations. A number of these have been made in the past and they can damage a person. Is this covered in any way in existing legislation or in this legislation?

If someone deliberately makes a false allegation it is a criminal offence. One must believe in the allegation one makes, and believing it means making it in good faith. One does not want to prosecute someone who believes but is mistaken. However, if someone makes a false allegation that person clearly does not believe. To deal with this in the context of existing legislation, section 12 of the Criminal Law Act 1976 provides for an offence of knowingly making a false report or statement to the Garda alleging an offence has been committed. The Protections For Persons Reporting Child Abuse Act 1998, which was a Private Members Bill I drafted and put through the Houses, provides, in section 5, for an offence of knowingly making a false accusation of child abuse. The Health Act 2004 provides in Part 9A as inserted by the Health Act 2007 for protected disclosure of information by employees of relevant health bodies and includes provision for an offence of knowingly making a false disclosure. A range of existing criminal law addresses this issue.

With regard to people making complaints to the Garda.

The issue might arise if someone makes a false allegation to a person who then feels he or she must report it to the Garda which would mean the train started earlier.

If the train starts earlier the criminal offence would apply to the individual who knowingly made the false allegation. If I approached someone and said Joe Bloggs had sexually abused my daughter and I knew this to be untrue, and the person I approached felt the need to tell the Garda and an investigation ensued, I do not believe the person I approached would be at risk of any criminal prosecution. However, that person would report to the Garda who originated the false allegation, which is where the criminal law may well be invoked.

Question put and agreed to.
SECTION 2

Amendments Nos. 3 and 6 are related and will be discussed together.

I move amendment No. 3:

In page 4, subsection (1), lines 36 to 42, to delete paragraphs (a) and (b) and substitute the following:

"(a) he or she knows or honestly and in good faith believes that an offence, that is a Schedule 1 offence, has been committed by another person against a child, and

(b) he or she has information which he or she knows or honestly and in good faith believes might be of material assistance in securing the apprehension, prosecution or conviction of that other person for that offence,”.

The amendments make slight changes to the wording so the Bill would read a person "knows or honestly and in good faith" believes rather than "knows or believes". I feel this would strengthen the provision.

I appreciate the Deputy seeks to clarify that a belief as to the commission of an offence must be a belief which is held honestly and in good faith. However, I do not agree this amendment is necessary. The Bill creates an obligation to report offences which a person knows or believes to have been committed. In my view a person cannot be said to believe something unless he or she does so in good faith. One either believes something or one does not. If I do not in good faith believe an offence been committed then I cannot see how I can be liable under the Bill. To report an offence in such circumstances could leave that person open to a charge of false reporting. One either believes or one does not and this is a straightforward position.

Under section 12 of the Criminal Law Act 1976 it is an offence for a person to knowingly make a false report or statement tending to show an offence has been committed or knowingly make a false report or statement tending to show a person has information material to any inquiries by the Garda Síochána. I mentioned this provision earlier. A belief as to the commission of an offence which is held otherwise than honestly and in good faith is not in my view a belief that an offence was committed. In these circumstances reporting such an offence would potentially subject the person to the offence of giving false information under the 1976 Act. A similar wording to that which is currently in the Bill appears in the withholding information offence contained in section 9 of the Offences Against the State (Amendment) Act 1998. It is also the wording used in section 7 of the Criminal Law 1997 concerning penalties for assisting offenders which inter alia penalise persons who with intent impede the apprehension or prosecution of a person whom they know or believe has committed an offence. The same formula of “know or believe” is used. It is appropriate that similar wording is followed in the Bill, and it is important for consistency with other legislation that similar wording is followed in it.

I accept the Minister's comments.

Amendment, by leave, withdrawn.

I move amendment No. 4:

In page 5, between lines 5 and 6, to insert the following subsection:

"(4) A child to which information concerning the commission of an offence against a child or vulnerable person specified in Schedule 1 or Schedule 2 is disclosed, shall not be guilty of an offence under this Act.”.

This is with regard to an issue raised in some of the submissions. In particular, the Ombudsman for Children noted the Bill applies only to the withholding of information regarding children or vulnerable adults. The example was given that a child of 13 who knows or who has witnessed the abuse of another child may be committing an offence by failing to disclose this information to the Garda Síochána. This would remain the case even if the child was also a victim of abuse. Although the Bill is clear that in such a situation a child does not commit an offence by failing to disclose abuse he or she has suffered, the Bill does not provide an equivalent exception relating to the abuse suffered by other children. This is why I have tabled the amendment.

I am sorry to tell the Deputy I cannot accept the amendment. I am aware this issue was raised by the Ombudsman for Children in her report on the Bill. However, the effect of the amendment in so far as it concerns the offences created by the Bill would be effectively to establish a new age of criminal responsibility distinct from that set out currently in law. The age of criminal responsibility with regard to withholding information is defined by the Children Act 2001 as amended in the Criminal Justice Act 2006. A child under 12 could not be charged with an offence under the Bill because one does not have criminal capacity under the age of 12. A child between the ages of 12 and 14 years could be charged only if the DPP consented to the charges in accordance with section 52(4) of the Children Act 2001. This provision states, "Where a child under 14 years of age is charged with an offence, no further proceedings in the matter (other than any remand in custody or on bail) shall be taken except by or with the consent of the Director of Public Prosecutions.".

A child of 14 years and over could in certain circumstances be charged with withholding information regarding an offence, for instance where the offence has been committed against a sibling, which is the issue raised by the Deputy. However, the Bill contains a number of defences which would apply and which would in many instances make a prosecution very unlikely. Where a victim does not want an offence reported a child has a defence. If one's brother or sister has been abused and one knows this but the other child does not want it reported, it is an absolute defence. Where a victim is under 14 and the parents have decided on behalf of the child that the offence is not to be reported to the Garda, in accordance with section 4(4) of the Bill, a child has a defence. Where a victim is under 14 and a medical practitioner has decided on behalf of the child that the offence is not to be reported to the Garda, in accordance with the provisions of section 4(8) of the Bill, a child has a defence.

The defence of "reasonable excuse" would also apply. This is one of the reasons "reasonable excuse" is important in the context of this Bill. For example, if the child is over 14 years but was under duress from a parent or a third party not to report an offence against a sibling, that would be a matter for the DPP or the court to take into account. Equally, if the child over 14 was himself or herself a victim of offences, these would all be matters which may be considered to provide a reasonable excuse. Simply, if a child over 14 knew his or her 13 year old brother or sister was being abused and the 14 year old was terrified and did not report it, there is no practical possibility there would be a prosecution brought because there would be a reasonable excuse or explanation as to why the child did not report.

This legislation is not designed to create a situation where, if there is multiple abuse within a family, a child who has himself or herself been the victim of abuse is criminalised for failing to report the abuse of a sister or brother. This is where, in the context of this legislation, some of the commentary has queried whether one should have a "reasonable excuse" defence but this is one of the reasons there is a "reasonable excuse" defence. The existence of it in those circumstances would, in appropriate cases, ensure that inappropriate prosecutions were not taken.

Apart from these specific provisions in the Bill, the legal position of a 14 year old in regard to this offence would be the same as that which applies generally to a 14 year old under the law.

Bearing in mind that a perpetrator of physical or sexual abuse against children may be under 18 years of age, and that there may be witnesses or persons with knowledge of the offence of the same age, a blanket immunity for all persons under 18 years of age could not be provided for. This is another area of difficulty. There have been instances of a 17 year old abusing children of the age of 8, 9 or 10. If the friend of a 17 year old knew that he or she was abusing someone's young child, should that 17 year old friend be protected from application of this legislation if he or she fails to report it? One of the reasons this legislation is complex is because of the myriad of possible human circumstances that can arise. This is one of the reasons one cannot say that some issue may not arise that none of us has thought of. We are doing the best we can to ensure that the protection is there so that where abuse occurs it is appropriately and properly reported, but also that the qualifications are there to address the type of circumstances that might arise where to bring a prosecution would not be in the public interest or would be grossly inappropriate because of the circumstances of the individual who did not report.

For those reasons, I cannot accept the amendment. I am not sure that the Ombudsman for Children fully analysed all of the possible difficulties and circumstances, but I greatly value the submission she made because it gives us all an opportunity to tease these issues out. Where something needs to be corrected, I am happy to correct it. In this context, the Deputy's amendment would bring an extra layer of problem and difficulty, and could create immunity for those aged 16, 17 or 18 who were aware that one of their friends was the abuser of someone else's child.

When drafting the amendment, we were looking at it from one particular point of view. Given the other argument the Minister put forward, I will withdraw the amendment. It is something I will take under advice that I might come back to on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 5:

In page 5, between lines 16 and 17, to insert the following subsection:

"(6) For the avoidance of doubt—

(a) notwithstanding Section 7(a) of the Judicial Separation and Family Law Reform Act 1989 and section 9 of the Family Law (Divorce) Act 1996, section 2 of this Act will override the statutory privilege of mediators;

(b) notwithstanding section 16 of the Ombudsman for Children Act 2002 and section 9 of the Ombudsman Act 1980, section 2 of this Act will override the statutory privilege of the Ombudsman for Children;

(c) section 2 of this Act, alongside the amendment of the Criminal Law (Evidence) Act 1992, to section 3 of the Evidence (Amendment) Act 1853, will override marital privilege;

(d) Notwithstanding the provisions of section 4 of this Act, sacerdotal communications shall not in and of themselves be legally privileged for the purposes of this Act.”.

Amendment put:
The Committee divided: Tá, 1; Níl, 8.

  • O’Brien, Jonathan.

Níl

  • Butler, Ray.
  • Calleary, Dara.
  • Ferris, Anne.
  • Kenny, Seán.
  • O’Donovan, Patrick.
  • Phelan, John Paul.
  • Shatter, Alan.
  • Stanton, David.
Amendment declared lost.
Section 2 agreed to.
SECTION 3
Amendment No. 6 not moved.

I move amendment No. 7:

In page 5, between lines 27 and 28, to insert the following subsection:

"(2) Subject to this section, a person shall be guilty of an offence if he or she without reasonable excuse instructs a person to withhold information from reporting to a member of An Garda Síochána.".

The purpose of the Bill is to create an offence where people withhold information. This amendment adds a subsection which would make it an offence if somebody instructs another individual to withhold information. The person who instructs or coerces another individual to withhold information is just as guilty as the person who withholds the information. That is the reason I tabled this amendment.

I thank the Deputy for raising the matter. For a number of reasons, however, the amendment is not necessary. First, a person instructing a person to withhold information from the Garda may be guilty of an offence under the Bill if they are aware of the offence or information relating to the offence. They would know of the offence, so by definition they would be committing an offence because they have failed to report it. Their failure to report it would, of itself, constitute an offence. Separately, and more relevantly in the context of this general issue, there is already an offence under section 7 of the Criminal Law Act 1997 which penalises any person who aids, abets, counsels or procures the commission of an indictable offence. Such persons shall be liable to be indicted, tried and punished as a principal offender. The offence of withholding information is potentially subject to trial on indictment by virtue of section 7(b) of the Bill. Any person who counsels somebody to commit an offence, for example, if I urge the Deputy not to report and the Deputy not reporting is a criminal offence and an indictable offence, my urging the Deputy is counselling or procuring him not to report. He could then be prosecuted under this Bill or under section 7 of the Criminal Law Act 1997. This offence is effectively covered both by the nature of this legislation and also by the express provisions in the 1997 Act.

Amendment, by leave, withdrawn.
Section 3 agreed to.
SECTION 4

I move amendment No. 8:

In page 6, between lines 9 and 10, to insert the following subsection:

"(2) Subject to this section, in any proceedings for an offence under section 2 or 3, it shall be a defence for the accused person to show that he or she (the accused person) made a referral in accordance with Children First and the threshold for referring under both Children First and this Act have been met.”.

I tabled this amendment because I wished to discuss this area. People who are involved in discussing this legislation and voting on it and professionals who will implement the legislation are well aware of the differences between this legislation and the Children First legislation. Others might not be as well aware and might not know what obligations are on them to report matters to the HSE or the Garda. This amendment provides that if somebody makes a report in good faith to the HSE which should have been made to the Garda, it would not be used to prosecute them under this legislation. The information has been passed on in good faith but just to the wrong authority. We are taking the two legislative measures separately, and I understand why we are doing that. It is such a complex area and it would probably be almost impossible to have combined both of them into one measure. However, it is something we should tease out in this regard.

Unfortunately, I cannot accept the amendment. It would conflict with the provisions in sections 2(5) and 3(5) which state, for the avoidance of doubt, the obligation under the Bill to report offences to the Garda is in addition to, and not in substitution for, any other obligation the person has to disclose the information to the Garda or any other person, although a report to the Garda need only be made once. This provision recognises certain professional codes relating to the reporting of suspicions or offences, such as the Children First guidelines. It has always been the intention that the obligations under the Bill and the obligations under the Children First guidelines would operate in parallel and one would not and should not be subject to the other. By so providing there is certainty as to individual responsibility. This is necessary given that the Bill and Children First are clearly distinct in terms of to whom they are addressed and the activities to be reported. For these reasons I cannot accept the amendment and, as I mentioned, it would conflict with the current policy set out in sections 2(5) and 3(5).

The Bill deals solely with serious criminal offences. Only the Garda can investigate such offences and they must receive any evidence or information about such offences at first hand from the persons concerned. It is worth making the point that the offences to which it applies are not solely and only the offences of child abuse. A series of offences are listed in the First and Second Schedules as they apply to children or vulnerable adults. It is not appropriate for reports of serious criminal offences to be made solely to the HSE. Effectively, every person in the State, other than the victim of an offence, is subject to the obligations under the Bill. Professionals and others working with children are also subject to the requirements of Children First.

The obligation to report under the Bill is an obligation to report the commission of an offence or such information which would lead to the apprehension, prosecution or conviction of a person for that offence. It is important to pause at this point and reflect on it. Children First is concerned with the reporting of suspicions of child abuse or neglect. Knowledge as to the commission of an offence is not required. There is a different emphasis in Children First. Under the Bill the obligation is to report to the Garda Síochána. Under Children First, the obligation is, in the main, to report to the HSE. The purpose of the Bill is also different from that of Children First. The Bill seeks to prosecute and convict offenders and those who would protect them by failing to provide relevant information to the Garda. Children First, as I stated on Second Stage, is concerned with the protection and safeguarding of children at risk through proper intervention and supports. They each have different objectives.

Inevitably circumstances will arise in which an individual should report to the Garda and the HSE, but the Garda is the appropriate body to report to with regard to the commission of offences and to investigate an alleged offence. The area of intervention in Children First is different. One does not need to believe an offence has been committed. One needs to have a suspicion and concern that a child is the victim of abuse. There are different levels of concern or knowledge, if I can put it this way, as between the two pieces of legislation. It has always been the case the Garda is the body to whom an offence is reported.

An obvious practical issue is raised, which is that it is important the message goes out from both Houses of the Oireachtas and the committee that if one knows of a child being abused, one's obligation if an offence is being committed is to report it to the Garda. If that child needs care and protection, one would also report to the HSE. There is a nexus because under Children First the Garda is supposed to liaise with the HSE. In practical terms the obligation here is to report to the Garda, and this is an obligation under criminal law and not only about child protection interventions. It is to facilitate investigations taking place and the maximum available information being given directly to the Garda and not by third parties.

I would like to tease out this matter with the Minister. If somebody has knowledge that a child is being abused and neglected, and one may argue this is the same thing, and reports it to the HSE, which is the appropriate body under Children First with regard to neglect, but the person does not report it to the Garda because the person feels he or she has done his or her civic duty, is there no case in which that individual could be prosecuted under the Bill for failing to report to both the Garda and the HSE?

I am saying if the person failed to report it to the Garda there would be a risk he or she would be prosecuted. I am not saying the person would not be prosecuted; I am saying the person may well be prosecuted. If someone reported serious abuse to the HSE, and by application of the Children First guidelines within a day or so the HSE reported it to the Garda, I presume the Garda would then interview the person who had the knowledge. In practical terms, whether a decision to prosecute would be made in these circumstances is left to the Garda and the Director of Public Prosecutions. The reporting of serious abuse directly to the Garda and the obligation to report is a way of ensuring people understand it is their primary obligation and that if there was any delay on the part of the HSE intervening, there would not be a delay on the part of the Garda in doing so. I am not saying there should be a delay on the part of the HSE, but the primary obligation under the Bill is to report to the Garda and, in some circumstances, individuals may have to make two reports.

I expect in common sense terms with regard to the example I gave of someone reporting to the HSE, which within 24 or 48 hours would report directly to the Garda which would speak to the individual who made the report, the likelihood of a prosecution may be very limited. However, people should not rely on others to fulfil their obligation to report to the Garda, such as if a person reported to the HSE but nothing was done for months and the person had failed to report it to the Garda. We need move towards an environment where it is a clear public policy about which there can be no ambiguity that if an individual knows serious offences are being committed against a child and has information that can assist the Garda in its investigation, this individual has a legal obligation to inform the Garda. In doing this we need to move away from a position where in some quarters people seemed to believe if they had this information and if they kept their heads down and did or said nothing and moved the abuser to somewhere else in the country, there would be no consequences. We must ensure there are consequences where people have solid information and know children are being abused and give this information to our police service.

I agree with this completely. I am teasing this out, and when the Bill is enacted it will come down to the public awareness campaign behind it because it will be critical. Many aspects of this legislation are complicated and people need to know their legal obligations. It is possible that somebody who has information a child is being abused and neglected and goes to the HSE could still be prosecuted under this legislation. I do not think this is the right approach, not because people should not report it to the Garda but if somebody honestly believes they have done their civic duty by reporting it to the HSE, whether the HSE passes on the information to the Garda is a completely separate issue. One would hope it would be passed on immediately but, as the Minister stated, this may not always be the case. It would be wrong to try to prosecute somebody for failing to report it to the Garda when he or she has already reported it to the HSE under the Children First guidelines because the person may not be aware of the thresholds involved.

I will give the Deputy two examples where an individual may have a defence. We keep coming back to this element of the Bill which is why it is important. I am anxious the public understands the primary obligation is to report to the Garda. Under Children First and depending on the nature of the offence, for example, child abuse and other offences in respect of children, there is an obligation to report to the HSE.

Let us take a number of possible examples. As an individual, I report to the HSE and ask it whether I need to report to the Garda. The HSE social worker says that it is not necessary for me to do so and that he or she will visit the family, after which he or she will make a report to the Garda. The individual does not report to the Garda and is prosecuted. The reasonable excuse defence would clearly ensure that he or she was not convicted, the reasonable excuse being that the individual reported to the HSE and was told by it that it would make the report to the Garda, which is the reason he or she did not report. A different possibility could arise in circumstances in which the HSE did not say anything to me but I personally believed that, once I reported to the HSE, I fulfilled my public obligation. The issue of whether I had a reasonable excuse would depend on the credibility of whether that was true.

When this legislation is enacted, we have a job to ensure that the public, in so far as one can communicate new laws to it and get wide coverage for them, understands that there is an obligation to report to the HSE, but the protection against injustice being done to someone is the reasonable excuse defence, which is important. One must remember that the Children First guidelines essentially apply to professionals, not to the general public. The public will not be obliged to report to both the Garda and the HSE. Some of the professionals will be. A member of the public may report to the HSE without having an obligation under Children First to do so and may believe or be led to believe that he or she has fulfilled an obligation.

That was my point.

When that happens, the reasonable excuse defence is available. On the basis that, if the matter was investigated, that was the reason a person gave and it was true that he or she had so reported, the likelihood of the Director of Public Prosecutions, DPP, prosecuting would be extremely limited.

I presume that, if abuse was made known to the HSE by an individual, it would also be obliged to tell the Garda.

If someone believes that he or she has done his or her public duty by reporting a case to the HSE, there is still a possibility of prosecution, no matter how limited that possibility is. As such, I will press the amendment.

Amendment put:
The Committee divided: Tá, 1; Níl, 8.

  • O’Brien, Jonathan.

Níl

  • Calleary, Dara.
  • Farrell, Alan.
  • Ferris, Anne.
  • Kenny, Seán.
  • O’Mahony, John.
  • Phelan, John Paul.
  • Shatter, Alan.
  • Stanton, David.
Amendment declared .

I move amendment No. 9:

In page 6, between lines 9 and 10, to insert the following subsection:

"(2) Subject to this section, in any proceedings for an offence under section 2 or 3, it shall be a defence for the accused person to show that he or she (the accused person) honestly and reasonably believed that the consequences of reporting an offence would pose a real and substantial risk to the health life of the child or vulnerable adult whom the offence was committed against from the alleged perpetrator of the offence.”.

I considered this issue in terms of reasonable excuse and have tabled the amendment so we can tease out the matters. For example, if a person or close family member or friend has information or a good reason to believe the consequences of reporting abuse would be a threat to that person's health or safety, how does this have a bearing on grounds of reasonable excuse? If a person has information about a person being abused he or she may be in fear for his or her life or there may be a threat to that person's safety if the information is reported. Somebody involved in gangland crime may abuse a child, for example, and so a person with that knowledge would have the responsibility to report it. A person may be fearful of doing so because of the reputation of the individual perpetrating the abuse. Could this be used as a reasonable excuse?

I am not sure that what the Deputy is raising is fully covered by the amendment he is proposing. We can assume that somebody involved in gangland crime could threaten a person with being shot if a report of abuse was made. If that was a factual truth, it would be a reasonable excuse and fall within that framework. The difficulty with this Bill is to ensure we do not insert express phrases that give people an opportunity to avoid reporting where there is no real validity in them avoiding reporting. By virtue of what is contained in the Bill, we cannot render the offence so oblique and unsure so as to render it unconstitutional. There must be a clear view of what conduct constitutes an offence. That issue gave rise to difficulty in other legislation, specifically the Supreme Court judgment dealing with begging issues. There must be clarity about the offence.

The Bill as drafted seeks to create an obligation on persons to report offences committed against children or vulnerable adults. It is the clear intention of the Bill to limit the circumstances in which a person would have a defence for failing to meet that obligation. The effect of this amendment would result in a wide-ranging defence, the subjectiveness of which would make it a difficult defence to overcome, as any individual who fails to report may be able to manufacture some alleged threat or concern relating to their person, future or ambitions in life in order to justify not making a report. I consider that this amendment would significantly undermine the purpose of the Bill and would, in fact, be criticised by those groups who made submissions to the joint committee on the Bill and who are anxious to have legislation that is truly effective and relatively straightforward to understand. I am conscious of necessary defences and the "without reasonable excuse" provision, and they can create areas of difficulty in the legislation. They are necessary to ensure injustices are not done and victims are afforded any help they require in circumstances where they have not yet come to terms with the events that occurred in their lives which should be reported.

I cannot envisage circumstances generally where notifying the Garda - whose functions include the protection of life and vindication of the human rights of each individual - would pose a risk to health or life of a child or vulnerable adult. That is the issue in reporting where the person doing so is concerned about the impact on his or her life, which the amendment seeks to address. The amendment addresses a different issue to that described by the Deputy and instead effectively speaks about a real and effective risk to the victim. I do not see how that would occur.

If the suggestion is that somebody involved in gangland crime might shoot the victim, it may be an issue arising under reasonable excuse, if that could be proved. The extent of what the Deputy is now proposing would so undermine the impact of the Bill as to be a very dangerous provision to include within it in the proposed form. For that reason I oppose it.

The reason I included this was the Minister's indication that one of the groups which made a submission on the Bill raised the issue and argued that it needed to be teased out. I am willing to withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 10:

In page 8, between lines 44 and 45, to insert the following subsection:

"(14) Payment of compensation to a child or vulnerable adult whom an offence under Schedule 1 or Schedule 2 of this Act was committed against, shall not be considered a “reasonable excuse” or a defence for the purposes of this Act.”.

I may press this amendment, depending on the Minister's response. In other jurisdictions, a victim of a sexual attack or sexual abuse may be paid compensation and there is no obligation to report in those cases. This matter was raised in the submission from the Ombudsman for Children, which raised concerns about where the payment of compensation could be used as a reasonable excuse. There should be no question of those who, for example, employ or manage persons who are known to have committed arrestable offences being able to buy themselves out of a duty to report. The amendment looks to close down avenues that people could use as inappropriate defences, and it would be useful in this Bill to make it explicit that the payment of compensation cannot be used as a reasonable excuse.

I appreciate that the Deputy has tabled this amendment as it relates to an issue raised by the Ombudsman for Children. In my view it is a very bizarre issue for the ombudsman to have raised as there is not provision in our law of any description indicating that the payment of compensation is an excuse for not reporting a criminal offence. It does not arise in the context of the 1998 or 2011 Acts or in this Bill. The effect of the amendment is to ensure a person charged with the offence of withholding information could not, as a defence, rely on the payment of compensation to the individual, presumably by or on behalf of the perpetrator of the primary offence. I emphasise that the payment of compensation can never interfere with the prosecution of an offence. The only relevance the payment of compensation might have in a criminal proceeding would be as a mitigating factor, a possible reflection of remorse and responsibility, when it came to sentencing. The payment of compensation might be seen as an admission by an individual that he or she did commit the offence as alleged, but there is absolutely nothing in the legislation which will allow an individual not to report because he or she has heard that the victim of abuse has received compensation. We keep on using the word "abuse" as an all-embracing term, but we are talking about the very serious sexual offences prescribed in the Schedule to the Act. There are certain issues that could fall under the abuse headline which may give rise to obligations on professionals to report under the Children First guidelines, but they are not triggered by any of the offences listed in the Schedule. The payment of compensation could never be used as a defence against a criminal charge reflecting some form of archaic notion of blood money. Yes, there are some countries, including some in the Middle East, in which if one pays blood money, one may not be prosecuted. In some of them if one pays blood money, it does not stop a person from being prosecuted. It might stop him or her being executed. There are countries in the Middle East in which if someone has been found guilty of a capital offence and there has been a sentence that he or she should lose his or her life, by being hung or put to death in some other way, and if the family of the victim forgives the offence in return for the offender paying compensation, the capital sentence may not be carried out. None of that, however, is part of our law, which is why it is rather bizarre that the Ombudsman entered into this issue in that context. The provision is simply not required. It would never arise in any aspect of our criminal law.

There is a related issue. I draw the Deputy's attention to section 6 of the Criminal Justice Act 1993 which contains the provision which grants jurisdiction to the court, on the conviction of an offender, to make an order requiring him or her to pay compensation in respect of a personal injury or loss resulting from the offence committed. Thus, the effect of compensation in a criminal trial is simply to be considered, as I said, as a mitigating factor in determining sentence or may, if the 1993 Act is applied, form part or all of the sentence. The committee and the Deputy will be familiar with occasional newspaper reports of judges adjourning imposing sentence pending an individual convicted of an offence paying a sum in compensation, more usually not designated by the judge but offered by the solicitor or counsel representing the convicted defendant. This is often done in the hope it will be seen as a mitigating factor and that a less severe sentence or penalty will be imposed.

It is also the case that the provisions of the Bill already provide a defence where the victim makes it known that he or she does not want the offence or information on it to be disclosed. I suppose, in theory, if a victim was immediately compensated and he or she said he or she did not want anyone to tell about it, that is one aspect of it, although it is not the reason the provision is included in the legislation. I am only theorising. Ultimately, if a third party knows that one of the serious offences in the First or Second Schedule has been committed and that the victim has been given financial or other form of compensation, it provides no defence or protection for the third party in refraining from reporting to An Garda Síochána.

I withdraw my amendment. Perhaps I might table an amendment on Report Stage.

Amendment, by leave, withdrawn.
Question proposed: "That section 4 stand part of the Bill."

I want to bring two issues to the Minister's attention. On section 4(2), there is an issue of capacity and a presumption that a child under the age of 14 years or a vulnerable adult "does not have the capacity to form a view as to whether the commission of that offence, or information relating to it, should be disclosed to the Garda Síochána". There could be a possible conflict with the other legislation that I mentioned with it always being presumed that there is capacity where vulnerable adults are concerned. This matter might need to be examined in that context.

In the context of this Bill the provision allows, for example, the parents of a child to make decisions in the interests of his or her welfare. It does not render the child incapable of making a report, nor does it render a vulnerable adult incapable of making a report. As the provision is framed and proposed, it is open to the child or vulnerable adult to make the report directly to An Garda Síochána. If he or she does not do so, there is an entitlement, on the part of his or her parents, to report in the interests of protecting him or her. Where a child or vulnerable adult is involved, the individuals looking after him or her have an entitlement and an obligation to make a report, unless, again to paraphrase the legislation, there is a "welfare reason" not to do so. What this does not do is state the vulnerable adult or the child cannot make a report. It imposes certain obligations on those who care for them and states they can avail of certain defences.

I understand the intention behind it. Section 4(2) states: "it shall be presumed ... unless the contrary is shown" that there is no capacity.

The other legislation presumes that there is capacity.

The other legislation is about empowering people who may be vulnerable to engage in decision making.

This provision is about acknowledging that a vulnerable adult or child may not be able to make a decision and saying to those who have responsibility for him or her, where an offence has been committed, that they have an obligation to report. This is about the imposition of a obligation on third parties. The other provision in the mental capacity Bill is about acknowledging that individuals who in the past may not have been accepted as having a certain capacity should be presumed to have capacity unless the contrary is proved or established.

Yes, that was the actual case.

There is a difference. It is nuanced and relates to the purpose of the legislation.

It is nuanced.

One is an empowerment provision, while the other recognises that, in certain circumstances, there are obligations on third parties.

My other issue relates to section 4(6) which includes the words, "the best interests of that child". The best interests test was discussed a lot in the debate on the mental capacity legislation, but it was put to us that we should move away from it. I just want to bring it to the Minister's attention. I do not want to dwell on it but to point out that it was debated long and hard when we debated the other Bill.

I am not entirely sure why it has been suggested, particularly as it relates to children, that we move away from the best interests test. One of the major objectives is to ensure the best interests of children are given priority and recognised fully in making decisions that impact on their welfare and development. It may be that there is a pulling in opposite directions when one is dealing, on the one hand, with children, and on the other, vulnerable adults.

I appreciate that. In the context of this legislation we believe it is the appropriate way in which to deal with matters.

I wanted to draw the matter to the Minister's attention because people felt very strongly about it and thought it was paternalistic, especially in the case of vulnerable adults.

Question put and agreed to.
Sections 5 to 9, inclusive, agreed to.
NEW SECTION

I move amendment No. 11:

In page 14, before section 10, to insert the following new section:

10.—(1) It shall be the responsibility of the Minister for Justice and Equality to ensure that the provisions of this Act are implemented in full alongside the provisions of Children First.

(2) A joint report from the Commissioner of An Garda Síochána and the Director of Child and Family Services of the Health Services Executive on the operation of this Act shall be laid before the Houses of the Oireachtas.

(3) The main provisions of this Act and the offences listed under Schedules 1 and 2 of this Act, and further details including methods of reporting, shall be made available on the websites of the Department of Justice and Equality, the Department of Children and Youth Affairs, the Health Service Executive and An Garda Síochána.”.

The amendment is self-explanatory. It would put in place provisions that would enhance the Bill. I know that what is included in subsection (1) is probably going to happen.

It is the responsibility of the Minister for Justice and Equality and the Minister for Children and Youth Affairs to ensure it is implemented in full, along with the Children First Bill.

Regarding the second part of the amendment, it would be useful to have a joint report laid before the Houses of the Oireachtas in order to see how well the Bill is working. Throughout today's debate, we spoke about public awareness and how the websites of the Department should be used to promote it. The third part of the amendment is self-explanatory and relates to that point.

I do not consider the amendment necessary. The implementation and operation of the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Bill 2012 will be a matter for the Garda Síochána for the purposes of investigating offences under the Bill, and the Director of Public Prosecutions and the courts in terms of prosecution and trial. The implementation and management of the Children First Bill is a matter for the Department of Children and Youth Affairs and the relevant bodies within the HSE. My Department is working closely with the Department of Children and Youth Affairs on the implementation of the Children First report.

Subsection 2 of the proposed amendment is also unnecessary. Through parliamentary questions and reports such as the Garda Síochána annual report, Members of the Houses will have the opportunity to inquire into, and seek information on, the operation of this Act. Information on how the Act is operating will be available. The provision also envisages a role for the director of child and family services with regard to the operation of the Act when it is a matter for the Garda Síochána, the DPP and the courts. The director of child and family services is not directly involved in the operation of the Act.

The publication requirement, subsection 3, is also unnecessary and I regard it as inappropriate for legislation. Information relating to the Bill is available on my Department's website and has been since the publication of the general scheme. The content of the websites of other Departments and organisations is a matter for those Departments and organisations. I do not propose to accept the amendment but I assure the Deputy we will do whatever is practicable to ensure knowledge of what is contained in the Act is made known. We will consider what may be put on the website after the Act has been enacted and signed by the President in order to ensure there is a touchstone for information on its contents.

Given the assurances, I withdraw the amendment.

Amendment, by leave, withdrawn.
Section 10 agreed to.
Sections 11 agreed to.
SECTION 12

Amendment No. 12 is out of order because it involves a potential charge on the Revenue.

Amendment No. 12 not moved.
Section 12 agreed to.
Schedules 1 and 2 agreed to.
Title agreed to.
Bill reported without amendment.
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