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.