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SELECT COMMITTEE ON JUSTICE, EQUALITY AND WOMEN’S RIGHTS debate -
Wednesday, 3 Jun 1998

Vol. 1 No. 7

Child Trafficking and Pornography Bill, 1997: Committee Stage.

I welcome the Minister for Justice, Equality and Law Reform and his officials. We will proceed to the discussion on the Bill.

Section 1 agreed to.
SECTION 2.
Amendment No. 1 not moved.

Amendments Nos. 2 and 3 are related and may be discussed together by agreement.

I move amendment No. 2:

In page 3, subsection (1), line 28, to delete "that shows" and substitute "that has as its dominant purpose the description or display of".

The vast majority of photographs of explicit sexual activity involving children are for blatant pornographic purposes. There are occasions when there could be a medical dimension to photographs which might appear in medical textbooks and so on. This amendment allows for cases where medical textbooks might be allowed to contain certain depictions. That is why the amendment refers to the "dominant purpose" of photographs.

During the Second Stage debate a doubt was raised as to whether the word "shows" in paragraph (a)(i) of the definition of child pornography would be sufficient to cover depictions by way of printed text or narrative or whether it might be confined to visual images only. To meet that point I am proposing to add the words "or relates to" after the word "shows". Deputy Higgins' amendment proposes to bring in the notion of description. This was the term considered by the parliamentary draftsman but he came down in favour of the concept of relating to rather than describing, on the basis that we want to focus on the particular sexual activity or situation rather than a description of the person engaged in that activity. I hope my amendment is acceptable to the Committee.

I made the point on Second Stage that if child pornography includes the printed narrative such as novels without illustrations, it is not clear if the Bill, as drafted, catered for that eventuality. The ambiguity arose because on the one hand visual representation is defined as including documents such as books, periodicals and pamphlets, and on the other hand the primary definition states that it must be a visual representation which shows a child engaged - actually engaged -in explicit sexual activity. If it is intended to include the printed narrative one would expect to find a formulation along the lines that a visual representation is one which describes or shows a person engaged in sexual activity. The Bill, as presented on Second Stage, conveyed the impression, through the exclusive use of the word "shows", that there must be some graphic or photographic element involved. If it is not intended to include solely printed pornography this is surely a serious gap in the Bill. Pornography can be in literary as well as graphic form.

The concern which Deputy Higgins expressed on Second Stage has been addressed by the amendment which I have agreed. It must be recalled that the word "description" can relate to a physical attribute of an individual where "or relates to" in this context certainly covers the matter on which concern was expressed by Deputy Higgins. I indicated to Deputy Higgins on Second Stage that I would look very carefully at what he was proposing.

Amendment, by leave, withdrawn.

I move amendment No. 3:

In page 3, subsection (1), line 28, after "shows" to insert "or relates to".

Amendment agreed to.

Amendment No. 4 is consequential on amendment No. 5 and amendment No. 6 is related so amendments Nos. 4, 5, and 6 may be discussed together by agreement.

I move amendment No. 4:

In page 3, subsection (1), line 30, to delete "or".

During the Second Stage debate I undertook to look at the question of amending the definition of child pornography so as to include images of children witnessing and watching other people involved in explicit sexual activity. Making a child watch such activity is not only, in itself, a form of child abuse but the images of such abuse are used by paedophiles in the same manner as other forms of child pornography. Paedophiles also use such images to groom or condition children to accept abuse as a normal part of life. As things stand, such images would probably not be covered by the terms of the Bill. It could of course be argued that they advocate or encourage child sexual abuse and hence, by virtue of paragraph (c) of the definition of child pornography, come within the scope of the Bill. Such an argument might not, however, succeed in every case. In any event, my amendments would put the situation beyond doubt by specifically including in the definition of child pornography images of children as bystanders witnessing explicit sexual activity engaged in by others. My amendments fill what might have been a lacuna in the Bill and I commend them to the Committee.

I thank the Minister for accepting the thrust of my proposal. There is very little difference between what the Minister and I are saying. The Minister's amendment proposes to insert the words "that shows or relates to a person who is or is depicted as being a child and who is or is depicted as witnessing any such activity by any person or persons,". My amendment proposes to insert the words "is depicted as witnessing a sexual act by one or more others in a manner apparently calculated to provide sexual gratification for another,". Rather than have a child directly involved in the sexual activity itself a pornographic situation could be created where the child is put in the position of witnessing a sexual act between two others. Although the child is a bystander and not an actual participant this constitutes an act in the spirit of the Bill. There was a serious lacuna and I am glad the Minister has dealt with it. The question is whether the Minister's form of words or mine is used but what is important is that a loophole has been plugged.

Deputy Higgins has pointed out the position very fairly. It is important that the terminology be as precise and as concise as possible. Deputy Higgins differs from the Government amendment in two main respects. First, his amendment refers to "a sexual act by one or more others" while the official amendment refers to "any such activity", meaning any explicit sexual activity. The latter is consistent with the terminology which is already in the Bill. Second, Deputy Higgins' amendment introduces the concept of a child witness providing sexual gratification for another person. The term "sexual gratification" is used in other countries as part of a definition of child sexual abuse or sexual exploitation. Any introduction of the expression into Irish law would best be done in that context. The question of providing a definition of child sexual abuse into our law is one which is addressed in the discussion paper on the law and sexual offences which I published last week. The discussion in relation to the matter raised by Deputy Higgins in the context of this legislation is by no means closed.

I concur with the Minister and Deputy Higgins. Both amendments aim to do the same but the wording has different emphases. It is important that this issue which was raised on Second Stage has been taken on board by the Minister.

Amendment agreed to.

I move amendment No. 5:

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

"(ii) that shows or relates to a person who is or is depicted as being a child and who is or is depicted as witnessing any such activity by any person or persons, or".

Amendment agreed to.
Amendment No. 6 not moved.

I move amendment No. 7:

In page 4, subsection (1), line 1, to delete "a child".

This is a drafting amendment. The words "a child" where they first appear in paragraph (b) of the definition of child pornography are superfluous. This amendment proposes to delete them. The effect of the amendment will be to bring the wording of paragraph (b) into line with what is already in paragraph (a)(i) and with what is now, by virtue of amendment No. 6, in the new paragraph (a)(iii).

Amendment agreed to.

Amendments Nos. 8, 12, 13 and 14 are consequential, amendments Nos. 11 and 29 are related and all may be discussed together. Is that agreed? Agreed.

I move amendment No. 8:

In page 4, subsection (1), line 4, to delete "or".

Amendment No. 29 is in the name of Deputy Higgins. These amendments arise from an undertaking I gave on Second Stage to look at whether the Bill covered the practice of exchanging information intended to facilitate child sexual exploitation. Amendment No. 11 is designed to ensure that this type of practice is criminalised. It proposes to extend the definition of child pornography to include any material, written or otherwise, which indicates or implies that a child is available to be used for the purpose of the production of child pornography or for other forms of sexual exploitation.

The exchange of such material can in some respects be regarded as more sinister than the distribution or possession of child pornography since the child about whom the information is being conveyed may not yet have been sexually exploited and might otherwise be spared all that goes with that.

Amendment No. 12 is a consequential drafting amendment and proposes to insert "description or information" after "representation" in the latter part of the definition of child pornography to cater for the concept of information being exchanged. Amendment No. 13 is likewise a consequential drafting change adding the words "transmitted or conveyed" after the word "produced" where it first appears in the latter part of the definition.

Amendment No. 14 is another consequential drafting change and deletes "a representation" and substitutes "any representation, description or information". Amendment No. 29, in the name of Deputy Higgins proposes to create a new offence of exchanging information in section 3(2) and to go no further than that. My amendments, because they insert the concept of exchange of information into the definition of child pornography, will ensure that a person engaged in this type of practice will be caught not just by section 3 but by every other section.

For instance, if a person is found in possession of information which indicates that a child is available for sexual exploitation, he will be caught by the section 6 offence of simple possession. Under Deputy Higgins' proposed amendment however, he would not have committed any offence since exchanges of information would be a necessary prerequisite for an offence having been committed. While my amendments and that of Deputy Higgins are similar, my amendments goes further and will have the effect of ensuring that any use of this type of information, in whatever shape or form, will be criminalised under every section by virtue of the fact that it will be encompassed in the definition of child pornography.

I have no problem if the Minister wishes to exceed what I set out to achieve on Second Stage and I support him. The definition in section 1 seems to be confined to audio and visual representations, although visual representations includes books, periodicals and other documents. I assumed the primary definition of child pornography, referring to computer graphics etc., included material published on the Internet, which is why I asked the Minister on Second Stage if he had considered the problem of people using the Internet to exchange information and target children. Although the publication of details on the Internet may not be explicit, the agenda behind it is obvious -to exploit children.

As I said on Second Stage, a website could show photographs of children which are not necessarily lewd or pornographic but indicate where these can be found and that they are available. This is covert marketing from the point of view of sexual exploitation of children and the availability of marketable pornography. I felt that was not captured in the existing definition in section 1. That is why I put forward my amendment and I am willing to withdraw it because the Minister accepts the basic thrust and goes beyond what I sought to achieve.

Amendment agreed to.

Amendment No. 10 is an alternative to amendment No. 9, amendment No. 33 is related and all may be discussed together. Is that agreed? Agreed.

I move amendment No. 9:

In page 4, subsection (1), line 6, to delete "unlawful sexual activity with children" and substitute "any unlawful sexual activity with children which is an offence under any enactment, or".

These are drafting amendments. During the Second Stage debate, I undertook to consider the need for the inclusion of the term "unlawful" in the phrase "unlawful sexual activity" in paragraph (c) of the definition of child pornography. The word "unlawful" has traditionally been used in legislation governing sexual offences. It serves as recognition that sexual relations with a married child are lawful. However, in the context of a definition of child pornography, the parliamentary draftsman has advised that the word "unlawful" while technically correct could be improved upon.

Accordingly, amendment No. 9 proposes to delete the word "unlawful" and replace it with reference to an offence under any enactment. The new words proposed by the amendment will not change the meaning or the intent of the provision. The words proposed differ slightly from those in amendment No. 10 in the name of Deputy Upton. However, the wording I propose has been cleared by the parliamentary draftsman.

Amendment No. 33 is a consequential drafting amendment which proposes to substitute the reference in section 3(3)(c) to the Criminal Evidence Act as amended with the same phraseology as is proposed by amendment No. 9, namely any sexual activity which is an offence under any enactment. The new phraseology proposed will not change the substance of the provision. For reasons of consistency, good drafting practice suggests that if the wording in section 2 is to be changed as proposed by amendment No. 9, the wording in section 3(3)(c) should follow suit.

These amendments represent textual improvements and overcome any ambiguity attaching to the term "unlawful" which was referred to on Second Stage. I hope they are acceptable to the committee.

These are drafting amendments and as such do not impact heavily on the Bill.

Amendment agreed to.
Amendment No. 10 not moved.

I move amendment No. 11:

In page 4, subsection (1), between lines 6 and 7, to insert the following:

"(d) any visual representation or description of, or information relating to, a child that indicates or implies that the child is available to be used for the purpose of sexual exploitation within the meaning of section 3,".

Amendment agreed to.

I move amendment No. 12:

In page 4, subsection (1), line 7, after "representation" to insert ", description or information".

Amendment agreed to.

I move amendment No. 13:

In page 4, subsection (1), line 8, after "produced" to insert ", transmitted or conveyed".

Amendment agreed to.

I move amendment No. 14:

In page 4, subsection (1), line 9, to delete "a representation" and substitute "any representation, description or information".

Amendment agreed to.

Amendment No. 15 is in the name of Deputy Upton. I may have caused him not to be present as there was a slight misunderstanding about the time of the meeting. I apologise for that.

Amendment No. 15 not moved.

Amendment No. 16 is consequential on amendment No. 17 and both may be discussed together. Is that agreed? Agreed.

I move amendment No. 16:

In page 4, subsection (1), line 18, after "pamphlet," to insert "and".

These are technical drafting amendments. Paragraph (b) of the definition of the term "document" states that a copy of a document is included in that definition. However, later in the definition section the term "visual representation" is likewise defined to include a copy of a document. Accordingly, there is some duplication in both definitions. Amendments Nos. 16 and 17 will address the duplication by deleting paragraph (b) of the definition of document. I hope these amendments are acceptable to the committee.

Amendment agreed to.

I move amendment No. 17:

In page 4, subsection (1), to delete line 19.

Amendment agreed to.
Amendment No. 18 not moved.

I move amendment No. 19:

In page 4, subsection (1), line 26, before "document" to insert "any".

Deputy Upton's amendment which has fallen was intended to address one small grammatical point to ensure that the word "any" governs documentary as well as photographic, film or video representation. We could argue over this for a long time to no avail. When there is doubt it is always better to be certain. Therefore, in accepting the point made by Deputy Upton regarding the necessity of inserting "any" before "document" I recommend amendment No. 19 to the committee. The amendment has been prepared by the draftsman in the interests of professional drafting and there is no difference between the two amendments.

Amendment agreed to.
Amendment No. 20 not moved.

I move amendment No. 21:

In page 4, subsection (1), line 30, after "sound" to insert "or copy thereof".

Deputy Upton's amendment would ensure that a visual representation of child pornography would not only include any accompanying sound but a copy of any such sound. This brings the definition of child pornography into the realms of the very unlikely but if something is possible it is worth including. Therefore, I accept the substance of Deputy Upton's amendment but the draftsman would prefer a slightly different wording as proposed in amendment No. 21. I recommend amendment No. 21 to the committee.

Amendment agreed to.

Amendments Nos. 22 and 25 are related and may be taken together by agreement.

I move amendment No. 22:

In page 4, between lines 37 and 38, to insert the following subsection:

"(3) In any proceedings for an offence under section 3, 4, 5 or 6 a person shall be deemed, unless the contrary is proved, to be or have been a child, or to be or have been depicted or represented as a child, at any time if the person appears to the court to be or have been a child, or to be or have been so depicted or represented, at that time.".

The purpose of this amendment is to ensure that in proceedings for offences under the Bill evidence of age will not have to be formally proved by the prosecution. The effect of the amendment will be to enable the age of a child to be inferred by the court. There would be obvious difficulties in making a positive identification of an unknown person depicted in a photograph or video recording and, hence, his or her age. There could also be difficulties in establishing the age of children trafficked here from abroad. The amendment will ensure that the issue of whether a person is under 17 years of age for the purposes of the Bill will be one based on inference without any need for formal proof. The desirability of this provision has become clearer following a decision of the English Court of Appeal in a case, R. v. Land in late 1997 in which an appeal against possession of indecent photographs of a child was dismissed on, inter alia, the ground that the jury could properly decide on the age of a child without the need for formal proof. The formula of words used in my amendment takes account of the equivalent provisions in section 2(3) of the English Protection of Children Act, 1978, upon which the Court of Appeal decision was based.

Deputy Upton's amendment was based on section 8 of the Sexual Offences (Jurisdiction) Act, 1996, which, it will be recalled, was brought forward as a Private Members Bill in our joint names in happy days.

The Minister spoke about the jury making its own deduction from a photograph in relation to the age of a child.

There could be difficulties in relation to establishing the precise age of a child at the time or at the time of the offence. In these circumstances we are using a formula of words used in the English Protection of Children Act, 1978, in order to ensure that in proceedings for offences under the Bill there would not be a necessity for formal proof by the prosecution of the age of the child. In other words, the court would be able to infer the age of the child. It is not 100 per cent satisfactory to proceed in this fashion, but if we did not proceed in this way considerable difficulties would be caused, particularly where it would not be possible formally to prove the age of a child. Unfortunately, trafficking in children, a despicable crime, does occur and in such circumstances it would be difficult if not impossible formally to prove the age of a child. We are doing what the Deputy suggested and I think this is to be generally welcomed.

Amendment agreed to.
Amendment No. 23 not moved.

I move amendment No. 24:

In page 4, subsection (3), line 43, to delete "occurs." and substitute "occurs,

(c) a reference to any enactment shall be construed as a reference to that enactment as amended, adapted or extended, whether before or after the passing of this Act, by or under any subsequent enactment.".

I thank Deputy Upton for his amendment No. 23 which proposes a technical correction to the interpretation section. When I showed it to the draftsman he agreed that the reference proposed should be included, but thought he could improve on Deputy Upton's wording. The main difference between the two amendments is that the one in my name includes any amendments, adaptations or extensions to an enactment made before the passing of this Bill. This is an important difference as Deputy Upton's amendment would not include an amendment made, for example, last year to an Act passed in 1996. Accordingly, I recommend that amendment No. 24 in my name be accepted.

Amendment agreed to.
Section 2, as amended, agreed to.
SECTION 3.
Amendments Nos. 25 and 26 not moved.

Amendment No. 27 is consequential on No. 28 and No. 35 is related. The three amendments may be discussed together by agreement.

I move amendment No. 27:

In page 5, subsection (2)(a), line 10, to delete "or" where it secondly occurs.

I would have accepted amendment No. 26 in the name of Deputy Upton. Hopefully the lines of communication will open again and he may be present for Report Stage when it can be dealt with. I am proposing amendments Nos. 27 and 28.

Section 4 deals with a particular concept, namely, a person who has custody, charge or care of a child and allows the child to be used for the production of child pornography. It parallels the provision in the Children Act, 1908, which it is proposed to update in the Children Bill. In drafting the Bill we were advised that if we extended the scope of section 4 beyond persons having the custody, charge or care, or allowing the child be used for the production of child pornography, there would be a danger of overlapping with sections 3 and 5, causing confusion as to the difference between the sections. As the Bill stands, section 5(1)(a) makes it an offence for any person to knowingly produce child pornography. The meaning of the word "produce" includes "make" and in making child pornography children would be used. The current provision is not confined to persons having custody, care or charge of a child. I felt there was scope for extending section 3(2) to include the offence of using, in the case of a child being used for the purpose of his or her sexual exploitation, which has a wider meaning than child pornography. The offence would apply to persons who take, detain or restrict the personal liberty of a child for the use of the child for the purpose of his or her sexual exploitation, and persons who would organise and knowingly facilitate such use. The effect of the amendments is to ensure that use of children for their sexual exploitation or in the making of child pornography is brought within the remit of the Bill.

We support the two amendments from the point of view of throwing the net as widely as possible so that everybody who has any involvement either by way of organisation, facilitating, administering, or in any other manner has any truck in relation to the whole business of sexual exploitation of children should come within the scope of the Bill. I welcome the thrust of what the Minister is trying to achieve by virtue of these two amendments.

Amendment agreed to.

I move amendment No. 28:

In page 5, subsection (2), lines 11 and 12, to delete paragraph (b) and substitute the following:

"(b) uses a child for such a purpose, or

(c) organises or knowingly facilitates such taking, detaining, restricting or use,".

Amendment agreed to.
Amendment No. 29 not moved.

Amendments Nos. 31 and 32 are alternatives to amendment No. 30. Amendments Nos. 30, 31 and 32 will be taken together, by agreement.

Amendment No. 30 not moved.

I move amendment No. 31:

In page 5, subsection (2), line 14, to delete "10 years" and substitute "14 years".

The effect of this amendment will be to increase from 10 to 14 years imprisonment the maximum sentence for the offence in section 3(2) of taking or detaining a child for the purpose of his or her sexual exploitation. The offence in section 3(1) of trafficking children across international borders for the purpose of their sexual exploitation carries a maximum sentence of life imprisonment. The ingredient in that offence which makes it warrant such a severe penalty is that the children are moved across international borders, away from their own communities and separated from their own culture and language. The essential nature of the offence is the same in both cases, namely, the taking or moving of children for the purposes of sexual exploitation. Despite the international aspect of the section 3(1) offence, therefore, the penalty differential between that and the section 3(2) offence is to my mind too large. My amendment, therefore, proposes to remedy this and bring the penalties for both offences closer together by increasing the punishment for the section 3(2) offence of taking or detaining a child to a maximum of 14 years imprisonment.

Amendment No. 30 is in the name of Deputy Upton. Unfortunately he cannot be here today. Amendment No. 32 in the name of Deputy Higgins proposes to increase the penalty maxima for the section 3(2)(b) offences to 20 years. A 20 year sentence may be viewed as equally if not more punitive than a life sentence since we know that in practice the average amount of time for a life sentence in prison can be well under 20 years. I have some difficulty with Deputy Higgins's proposal, as I would have with Deputy Upton's amendment. The increase from 10 to 14 years imprisonment which I am proposing represents a compromise between what is in section 3(2) as it stands and what Deputy Higgins's proposes. I hope it will be acceptable to the Committee on that basis.

The offence at section 3(2) is one of the most despicable offences against an innocent individual. It is felt that the penalty should be as severe as 20 years in the context of the need to indicate, as a deterrent to people, how seriously the State views such an offence. A 20 year maximum sentence for such an offence would be in keeping with the abhorrence felt by the public towards people who commit such crimes.

I understand what Deputy Neville is saying. However, the difficulty is that there is a danger of imposing a greater sentence for the section 3(2) offence than for the section 3(1) offence for the following reason. As we know "life" has a certain meaning attached to it in the context of sentencing. To the best of my knowledge, people do not serve the full life term. We know prisoners are released before that. It is important that there is a distinction between the two offences for the simple reason that the section 3(1) offence involves taking the children out of their own country and into a completely different environment, culture and language. I accept that the section 3(2) offence is a heinous offence and should not be treated lightly. I suggest that extending the sentence to 14 years reflects the seriousness with which we consider such offences. In the circumstances I have reached as good a compromise as possible. It is an improvement on what I originally proposed. It takes into consideration the amendment proposed by Deputy Higgins and Deputy Upton. When one considers how long life really is in terms of sentencing policy, I ask the Committee to accept my compromise amendment.

We are saying it should be left to the courts to decide. We are not suggesting that there be a mandatory sentence of 20 years but that the courts should have the discretion to impose a term of imprisonment not exceeding 20 years. The courts should decide on the basis of a case that the sentence would be much less, as happens in the case of most legislation. We should indicate to the courts that the State sees this offence as being very serious and give them the discretion to impose a sentence of up to 20 years.

Amendment agreed to.
Amendment No. 32 not moved.

I move amendment No. 33:

In page 5, subsection (3), lines 20 to 24, to delete paragraphs (c) and (d) and substitute the following:

"(c) inducing or coercing the child to participate in any sexual activity which is an offence under any enactment, or

(d) the commission of any such offence against the child.".

Amendment agreed to.
Section 3, as amended, agreed to.
SECTION 4.

Amendments Nos. 34 and 38 are related and will be taken together, by agreement.

I move amendmentNo. 34:

In page 5, line 26, after "a child" to insert "or who is in a position of influence over a child".

This section allows a child to be used for child pornography. The section reads:

Without prejudice to section 3, any person who, having the custody, charge or care of a child, allows the child to be used for the production of child pornography shall be guilty of an offence and shall be liable on conviction on indictment to a fine not exceeding £10,000 or to imprisonment for a term not exceeding 10 years or both.

To further broaden the scope of the section, after the word "child" I want to insert "or who is in a position of influence over a child". In other words, any person who comes into contact with a child and any person who would have influence over a child from the point of view of what the child does should come within the scope of the Bill. I am trying to ensure that we broaden the net as widely as possible to ensure every eventuality is catered for.

The purpose of amendment No. 38 is to define the meaning of the term "custody, charge or care of a child" with a view to ensuring that the widest possible categories of persons will be comprehended by the section 4 offence of allowing a child to be used for the purpose of the production of child pornography. My amendment is based on a formula used in the Children Bill, 1996 - with some improvements. Paragraph (a) of the amendment makes it clear that a parent does not cease to have custody of a child by virtue of the fact that he or she has deserted or does not reside with the other parent or child. Paragraph (b) clarifies the situation with regard to having charge of a child and provides that when a person who has the custody of a child commits that child to the charge of another person - a child minder, for example - that other person will be presumed to have charge of the child.

Paragraph (c) deals with persons who do not otherwise have custody or charge of the child. It provides that any person exercising authority over or having control of a child will be presumed to have care of the child. It was always intended that the phrase "custody, charge or care" should have the widest possible meaning. This amendment will put that policy beyond doubt so that any person exercising authority over a child, such as a swimming instructor, will be categorically deemed to have care of the child.

The amendment tabled by Deputy Jim Higgins would bring into section 4 a reference to any person in a position of influence over a child. This is less precise than what I am proposing. By defining the words "custody", "charge" and "care", one by one, my amendment may appear long winded. However, it is necessary if we are to ensure that the courts, in interpreting section 4, are left with no doubt as to whom the section is aimed at. What is being achieved by my amendment is what the Deputy intended to achieve by his amendment. However, mine is more long winded and surely he would expect that.

Touché. "Custody" is a precise term. The terms "charge" and "care" are a redefinition of the term "custody". I am talking about someone who might not necessarily have custody, charge or care of a child but who would be in a position of influence, such as a neighbour or someone in the same peer group who would have contact on a regular or casual basis with a child and who could use that contact or knowledge to influence them. Rather than diluting or weakening the definition, I want the Bill to cater for people other than those in charge, custody or care of a child.

I appreciate the Deputy's point. I refer him to subsection (2)(c) of my amendment which covers his point. It states that "any person exercising authority over or having actual control of a child shall be presumed to have care of the child". That covers the type of situation to which the Deputy referred where, for example, a neighbour is effectively in control of the child or exercising a dominant position over the child.

What is the situation in relation to juvenile child minders or child baby sitters, particularly from the point of view of penalties?

They would be deemed to have charge of the child. It is defined extensively that a person to whose charge a child is committed by any person who has custody of the child shall be presumed to have charge of the child. By using the three words, "custody", "charge" and "care", we have covered as many eventualities as could possibly be foreseen.

What is the position if the child minder is a juvenile? It is not unusual for a 12, 13 or 14 year old to look after a child.

That is not an issue. The issue is whether the individual concerned has custody, care or charge of the child. Age, which is related to the question of criminal responsibility, is a different issue. The fact that a child may not have reached the age where he or she would be expected to have or not to have mens rea within the meaning of the criminal law would not mean that the individual concerned would not have custody, care or charge of the child. That is a different issue.

Amendment, by leave, withdrawn.
Amendment No. 35 not moved.

Amendments Nos. 36 and 37 are related and both may be discussed together.

I move amendment No. 36:

In page 5, line 29, to delete "£10,000" and substitute "£25,000".

Amendment agreed to.
Amendment No. 37 not moved.

I move amendment No. 38:

In page 5, between lines 30 and 31, to insert the following subsection:

"(2) For the purposes of this section-

(a) any person who is the parent or guardian of a child or who is liable to maintain a child shall be presumed to have the custody of the child and, as between parents, one parent shall not be deemed to have ceased to have the custody of the child by reason only that he or she has deserted, or does not reside with, the other parent and child,

(b) any person to whose charge a child is committed by any person who has the custody of the child shall be presumed to have charge of the child, and

(c) any person exercising authority over or having actual control of a child shall be presumed to have care of the child.".

Amendment agreed to.
Section 4, as amended, agreed to.
SECTION 5.

Amendment No. 49 is consequential on amendment No. 39, amendment No. 50 is an alternative to amendment No. 49 and amendment No. 48 is related. Amendments Nos. 39, 48, 49 and 50 may be discussed together.

I move amendment No. 39:

In page 5, subsection (1), line 31, to delete "Any" and substitute "Subject to section 6(2), any".

In his amendment, Deputy Upton proposes to extend the defences in section 5 to section 6. The defences in section 5 only cover possession of child pornography. Thus, if a policeman from another country conducted a workshop for the Garda Síochána to familiarise the gardaí with the identification and investigation of child pornography, he or she would import and show child pornography and possibly distribute it. There would be no defences for such showing or importing. I agree with the aim of Deputy Upton's amendment that such activity should be covered by the defences. Accordingly, I agree with the purpose of the amendment, but the parliamentary draftsman has advised me that to meet the Deputy's objective it is necessary to recast the amendment. I commend, therefore, amendments Nos. 39, 48 and 49 to the committee. They fully meet the aim of Deputy Upton's amendment and I thank him for bringing the matter to our attention.

Amendment agreed to.

Amendments Nos. 40 to 44, inclusive, form a composite proposal and amendment No. 45 is related. Amendments Nos. 40 to 45, inclusive, may be discussed together.

I move amendment No. 40:

In page 5, subsection (1), line 31, after "who" to insert "knowingly".

The purpose of these amendments is to make clear that the offences under section 5 can only be committed intentionally. In this respect the amendment clears up some anomalies in the section. In addition, it responds to criticisms from the Internet service providers industry in Ireland which complained that the word "knowingly" was used to qualify simple possession but not possession for the purpose of supply. This amendment will address that problem.

The effect of my amendment would be to ensure that where a person is prosecuted under section 5(1)(e) for the offence of possession of child pornography for the purpose of distribution or production, knowledge that it was child pornography will be a constituted element of the offence. As things stand, the offence in paragraph (e) differs from the other offences listed in paragraphs (a), (b), (c) and (d) of section 5 in that the term "knowingly" is absent from it. The reason is that unlike the other offences, the offence in paragraph (e) consists of possession for a particular purpose and, therefore, the inclusion of the word "knowingly" was deemed unnecessary. Nonetheless, following the Bill's publication, concerns were expressed that the omission of the word "knowingly" could have serious consequences for Internet service providers in so far as their use of cache is concerned. Frequently, an ISP will cache or store material on its own computers for up to 24 hours after a user at PC level downloads it. This cache feature is an automatic storage mechanism for used sites and is basically an aid to reducing access times and to greater efficiency in the management of the Internet. The ISP could not possibly monitor or know the content of all the cache pages. The ISP see the inclusion of the term "knowingly" as crucial in that context and my amendment should meet its concerns.

The five amendments tabled in the name of Deputy Upton may appear at first sight to do the same as I am doing by way of my one amendment. Leaving aside the drafting, however, there is one important difference which is contained in section 5(1)(d). The effect of Deputy Upton's amendment No. 44 would be to make it an offence to knowingly encourage any of the activities mentioned in section 5(1)(a),(b) and (c). I cannot imagine how encouragement could be done innocently and, therefore, it is not necessary to preface the term "encourage". Accordingly, I have a difficulty with amendment No. 44. I hope Deputy Upton will withdraw his amendments on that basis.

Amendment, by leave, withdrawn.
Amendments Nos. 41 to 44, inclusive, not moved.

I move amendment No. 45:

In page 6, subsection (1)(e), line 1, before "possesses" to insert "knowingly".

Amendment agreed to.

I move amendment No. 46:

In page 6, subsection (1), line 7, to delete "not exceeding £100,000".

The effect of this amendment will be to remove the £100,000 ceiling on the fine and conviction for the child pornography, production and distribution, type offences in section 5. The court, without any guideline, will then be left with a discretion as to the amount of fine to impose where it deems a fine applicable.

While the production and distribution of child pornography is not always done for profit, large profits could potentially be made. More particularly, it is an offence for which a body corporate could be indicted and for which a custodial sentence is not an option. The possibility of a court wishing to fine a large scale producer or a body corporate a sum higher than £100,000 cannot therefore be ruled out. Unlimited fines are not unusual nowadays and there are several recent precedents.

The concept is also recognised in the Criminal Law Act, 1997, section 10(3), which allows the court to impose a fine in lieu of or in addition to any other penalties subject only to any statutory limitations on the amount of the fine. By removing the ceiling of £100,000, my amendment will have the desired effect of ensuring that those who engage in large scale production or distribution of child pornography, not least body corporates, will face tougher penalties.

Deputy Higgins proposes that the maximum sentence of imprisonment be increased from ten to 25 years. If I accepted his proposal, I would have to look at increasing the penalty in sections 4 and 6. Those penalties at ten and five years, respectively, would be grossly disproportionate to a 25 year penalty for the section 5 offences. As I see it, a prison sentence of the type Deputy Higgins proposes, is for all practical purposes likely to be greater than a life sentence.

We already have a penalty of life imprisonment for the section 3(1) offences and surely the committee would agree that those offences are of a far more serious nature. Their seriousness lies in the fact that they will always involve actual harm being done to a child whereas the section 5 offence may not entail such actual harm in every case. A 25 year penalty would also be totally out of line with the offence in other countries. For example, in Canada the maximum penalty is ten years. For the reasons I outlined, I ask Deputy Higgins to withdraw his amendment.

The Minister's amendment removes the ceiling to ensure an adequate fine is imposed. It is a pity there is no minimum fine because a fine lower than that which the Minister envisages may be imposed if the court has no indication of the level of fine to impose.

On Deputy Higgins' amendment, the essence of the Bill is to make it an offence to produce and distribute child pornography. A large amount of child abuse is being prompted by the distribution of pornography and the communication which ensues from that. It is an offence deserving a penalty of more than ten years. Deputy Higgins and I discussed this matter and came down in favour of a 25 year penalty. Because the Minister did not accept our previous amendment, he said he cannot accept this one because the penalty imposed by it would not be in line with other penalties. The production and distribution of pornography is one of the most serious offences in the State and should have a maximum imprisonment term not exceeding 25 years, with the courts having the usual discretion.

I know what the Minister is trying to achieve. From the point of view of the potential resources which accrue to people involved in this lurid business, we are talking about a multi-million pound business. A £200,000 fine relative to the profits being made may seem trivial to those who manage this type of business. On the other hand, there is an argument for including a figure as a deterrent. By removing the figure, it removes one of the shots across the bow which we try to include in legislation to send a clear signal that this type of behaviour is not acceptable. For example, increasing or amending the amount so as not to exceed £0.5 million would give the courts the discretion to apply a penalty of £5,000, £100,000, £300,000 or £0.5 million. It is a double edged sword.

My amendment proposes to delete "10" and substitute "25" years. I tabled the amendment in the context of the type of relativity between the sentence being imposed in section 4, which does not exceed ten years, and or a fine of £10,000. Here we are talking about £100,000 and imprisonment not exceeding ten years. There is a need to maintain conformity or relativity between the sentence and the financial penalty imposed. They would seem to be out of kilter. That was one of the reasons I proposed, with the support of Deputy Neville, that the term of imprisonment be increased to 25 years.

I do not necessarily accept what the Minister said about other offences in previous sections being more serious than this one. We are talking about subtle exploiters, those who use subtle marketing, armchair mercenaries and slick people with marketing techniques who sit at home and manage, manipulate, organise and draw down huge profits. The poor unfortunate victims who are part and parcel of their sordid produce may receive a pittance. If we tackle this problem from the point of view of the market itself and the marketing, the market will dry up. This is a crucial part of the Bill and we should include the strongest possible penalties and deterrents to ensure those who organise this market are dealt with even more punitively than participants in the films or in the pornographic display, whether oral, aural or visual.

Unquestionably, there is merit in what Deputy Higgins said but it is a question of scale. If a corporation is involved in the offence in question, it cannot be jailed but it can be fined. We are lifting the ceiling of £100,000 and allowing the court to impose whatever fine it wishes for which there is precedent. It is my intention in the forthcoming fraud Bill to have unlimited fines because they are necessary.

With regard to increasing the prison sentence from ten to 25 years, there is a question of scale. It would be necessary to examine other offences under the Bill because the sentences would be disproportionate and disproportionality in sentencing policy is undesirable. The cardinal rule is that the sentence must reflect the gravity of the offence.

There is no doubt that it is a heinous offence but we went as far as we could in terms of proportionality. The maximum penalty in Canada is ten years. In other jurisdictions the maximum penalty is three years. We have reached a compromise whereby the ceiling on fines has been lifted and an individual can be sentenced to a prison term of not more than ten years. A company can be fined an unlimited amount of money, as can an individual who might have accumulated funds as a result of his or her involvement in this pernicious trade.

The sentencing policy in the Bill is in line with international practice and is more severe that that of many other countries. The removal of the ceiling on fines should allay any concerns regarding the severity of the sanction.

Is the Minister firm in his opinion or will he examine the possibility of increasing the term of ten years, even if not to the level we consider suitable, between now and Report Stage?

I do not doubt the Deputies' concern and in those circumstances I will accede to Deputy Neville's request and consider whether it is possible to increase the prison term. I will not give guarantees in that respect because there is a question of proportionality with regard to other offences in the legislation. They would have to be addressed if the sentence in this section were to be altered.

Amendment agreed to.
Amendment No. 47 not moved.
Section 5, as amended, agreed to.
SECTION 6.

I move amendment No. 48:

In page 6, subsection (1), line 14, after "section 5(1)(e)", to insert "and subject to subsection (2)".

Amendment agreed to.

I move amendment No. 49:

In page 6, subsection (2), line 23, to delete "Subsection (1)" and substitute "Section 5(1) and subsection (1)".

Amendment agreed to.
Amendment No. 50 not moved.

I move amendment No. 51:

In page 6, subsection (2)(a), line 28, after "or" to insert "where he or she proves that the possession was for another lawful and reasonable purpose, or".

This amendment broadens the scope of the exemption in accordance with practice under UK law. British legislation allows a general exemption where persons have a legitimate reason for possession of a document. There are examples of where that can happen to various categories of the population for legitimate reasons.

I cannot accept the amendment because it would broaden the defences to the point where the practical implementation of the legislation could be adversely affected.

Section 6 already contains two defences. The first is concerned with the possession and exercise of functions under the censorship Acts and the second covers possession for the purpose of the prevention and investigation of crime. Shortly we will discuss an amendment to extend the defence to include possession for the purpose of bona fide research. These are fair and reasonable defences with definite meanings. It would be difficult for a person to abuse them, particularly in the case of research where it is proposed to shift the burden of proof.

The amendment proposed by Deputy Upton would import into the Bill a broadly based, indefinite concept which would be undesirable and, in the context of the other defences, unnecessary. I accept that the Deputy does not wish to make it easier for paedophiles to evade the strict provisions of the Bill but that could be the unintended effect of the amendment. The amendment uses terms such as "a reasonable purpose". That is a subjective concept and it could mean different things in different circumstances to different people.

I am satisfied that the defences in section 6 and the fact that the prosecution must prove that a person was "knowingly" in possession are adequate safeguards. Accordingly, I cannot accept the amendment.

If an academic is in possession of various materials, is he or she guilty until proven innocent? In other words, must they use the defences listed in the section or is there some way they can register as recognised or bona fide users of the material?

That is an evidential matter. The person would be obliged to establish to the satisfaction of the court that the material was required for bona fide research. If there were a system where a person could register, as suggested by the Deputy, it would be open to abuse. The provision must be as tight as it is. To do otherwise might unintentionally loosen or open floodgates.

I accept the concerns outlined by the Minister. He is right in asserting that it is not my wish to open loopholes in this area. However, there is an area of concern in relation to people who might have legitimate reasons for possessing this type of material. Given that British law provides for that, perhaps the Minister would examine the matter again.

The difficulty is that not all the defences available under this legislation are available under UK law. If they were, the position might be different. Having looked at the defences provided for in the Bill, I am satisfied that if I were to move in the direction suggested by the amendment, we would unintentionally create a problem where there was none.

Amendment, by leave, withdrawn.

Amendment No. 53 is related to amendment No. 52. Amendments Nos. 52 and 53 may be discussed together. Is that agreed? Agreed.

I move amendmentNo. 52:

In page 6, subsection (2), between lines 30 and 31, to insert the following:

"(c) for bona fide clinical or academic research purposes.".

The amendment seeks to provide a reasonable exception to the provisions of the Bill. A person could conceivably find themselves in possession of pornography in the exercise of official censorship functions. It is also possible that somebody who might be involved in crime prevention, investigation and prosecution might find themselves in possession of material of this type. I wish to draw the Minister's attention to another possibility, the possession of such material for bona fide research purposes.

A great deal of scientific research carried out by psychologists, criminologists and scholars in women's studies has involved the examination of various types of pornography for specific purposes. This is important work and it should not be prohibited through a legislative oversight. The Minister acknowledged this on Second Stage and his amendment No. 53 addresses the problem.

The issue of censorship is covered in section 6(2)(a). We then move to the other issue raised by Deputy Higgins, which involves the mind in a greater level of acrobatics. Section 6, as it stands, provides for just two defences to the offence of knowingly possessing any child pornography, namely possession for the purposes of statutory duties under the Censorship Acts, and possession for the purpose of the prevention, investigation or prosecution of offences under the Bill. In most cases bona fide researchers could rely on the latter defence. There may, however, be certain cases where the connection between research and crime prevention will be too tenuous to sustain a defence. Therefore, I indicated on Second Stage that I would ask the draftsman to draw up a specific and stand alone defence.

The amendment which I am proposing, while acknowledging the unquestioned assistance of Deputy Higgins, differs from the his amendment in two main respects. First, when put forward as a defence my amendment will result in a reversal of the burden of proof on to an accused to prove he or she had possession of child pornography for bona fide research reasons. This approach acknowledges it is possible that persons found in possession of child pornography might abuse a defence based in research, and the prosecution might have difficulty in persuading a court in certain circumstances of disproving such a defence. I adverted to that already in reply to a point raised by Deputy Hanafin. Clever paedophiles could easily claim their collection of child pornography was being used for research purposes. Quantity would be no help to the prosecution in such a case and, if anything, might only help to strengthen the case for a successful defence. My amendment, in putting the burden of proof on the accused, will guard against such abuse.

The second difference between my amendment and amendment No. 52 is that whereas my amendment simply speaks of "bona fide research", Deputy Higgins confines it to "bona fide clinical or academic research purposes". As I see it, research is either bona fide or it is not and there is no need to qualify it.

I understand the point the Minister is making in regard to shifting the burden of proof. I fully agree with him that research is either bona fide or it is not. Therefore, there is no need to put the burden of proof on the accused because it is up to the court to determine whether the research was carried out in good faith.

It is necessary to shift the burden of proof to the accused to prevent placing an unreasonable burden upon the prosecution. Requiring the prosecution to prove the situation was otherwise would give rise to pragmatic difficulties. It is only right that a person in possession of child pornography who claimed it was for research should have to establish it was for bona fide research.

Deputy Higgins agrees with me that research is either bona fide or it is not. I do not think it is asking a great deal of a person to require them to prove that the material concerned is for the purpose of bona fide research, which is not difficult to prove if it is true. The burden of proof should be on the accused because to do otherwise would place an unfair burden on the prosecution and would unquestionably prejudice the possibility of securing convictions which, in the normal course of events, would justly be secured.

Does the term "bona fide" in Deputy Higgins amendment apply only to bona fide academic research or clinical purposes, or does it apply to clinical and academic research? I am drawing a distinction between clinical work and research work. Should the Minister's amendment be changed to include clinical work considerations in the exemption he is providing, while still placing the burden of proof on whoever is engaged in this work?

We all share a sense of concern and worry about this, and what we are attempting to establish here is very important. Would "bona fide research" cover those who had more than an academic interest in collecting or studying pornography but who could prove it was also for bona fide research? How defined can the exemption be?

I am proposing to exclude the words "clinical" or "academic" and just say "bona fide research" for the reason outlined by Deputy Upton. For example, scientific or biological research would be excluded if one narrowed the definition to academic or clinical research. One can argue that academic or clinical research covers all research but one can equally argue that it does not; otherwise, there would have been no need to insert an "either/or" in relation to clinical or academic research. Research is either bona fide or it is not, irrespective of whether it is clinical, academic, biological, scientific or whatever.

In regard to shifting the burden of proof to the accused if this defence is put forward, I am very mindful of the fact that this is a defence which could easily be abused to the extent that it would place an unfair and almost impossible onus on the prosecution. I must guard against that, while at the same time safeguarding the right of an accused person - who is innocent until proven guilty - to assert his or her innocence. In the final analysis, the decision on whether the material is for the purposes of bona fide research is one for the court. The court will make that decision, irrespective of who has the burden of proof, in light of all the circumstances of the case. Having fully considered this, I believe it is of crucial importance that the onus of proof in relation to establishing that the material is for bona fide research should be on the accused.

I see what the Minister is saying in this regard and my sympathies would not be with a person who has pornographic material in their possession. It is possible to have genuine researchers who were also paedophiles and it might be very difficult for a court to prove that such people were in contravention of the spirit and detail of the Bill. The Minister is saying that the onus should be on an accused to prove to the court that their use of the material was bona fide in all aspects. There are very few instances when the burden of proof should be on the accused but this is one.

When one considers the lengths to which these people go to get this material, the Minister is right to place the burden of proof on them because, as he said, the defence could be abused greatly.

I discussed this matter with Deputy Higgins and agreed with him that the amendment should be tabled. However, following the discussion we have just had, I am happy to have changed my mind.

Amendment, by leave, withdrawn.

I move amendment No. 53:

In page 6, between lines 30 and 31, to insert the following subsection:

"(3) Without prejudice to subsection (2), it shall be a defence in a prosecution for an offence under subsection (1) for the accused to prove that he or she possessed the child pornography concerned for the purposes of bona fide research.".

Amendment agreed to.
Section 6, as amended, agreed to.
Sections 7 to 10, inclusive, agreed to.
NEW SECTION.

I move amendment No. 54:

In page 8, before section 11, to insert the following new section:

"11.-The Sexual Offences (Jurisdiction) Act, 1996, is hereby amended in the Schedule thereto by the insertion of the following paragraphs after paragraph 9-

'10. Section 3 of the Sexual Offences (Jurisdiction) Act, 1996.

11. Section 4 of the Sexual Offences (Jurisdiction) Act, 1996.'.".

This amendment broadens the Bill and allows proceedings to be taken against Irish nationals or residents who contravene sections 3 or 4 of the Act by committing an offence against a child in another country.

I understand Deputy Upton's wish to have the offences in question added to the schedule of sexual offences committed outside the State by persons who are normally resident in Ireland which can be prosecuted here. It is less than two years since the Oireachtas passed the Sexual Offences (Jurisdiction) Act, 1996, which was sponsored by the chairman of this committee and me, as I outlined earlier. My initial reaction is that it is too early to contemplate any substantive changes to that Act. In any case, any amendments to the 1996 Act would best be considered in the context of a review of that legislation.

It is not an issue which I would have envisaged as coming within the terms of this legislation. The more specific point is that all the offences in the Schedule to the 1996 Act are concerned with the actual abuse of children, including unlawful carnal knowledge of any girl under 15 years or of any girl who is over 15 years but under 17 years, rape, sexual assault, aggravated sexual assault, rape under section 4 of the 1993 Criminal Law (Sexual Offences) Act, buggery with a person under 17 years, gross indecency with a male person under 17 years and sexual intercourse, buggery or gross indecency with a mentally impaired person.

Section 3 of the 1996 Act penalises any person who arranges to transport or actually transports a person for the purposes of child sex tourism. Section 4 makes it an offence to publish information which is intended or is likely to promote, advocate or incite the commission of a sexual offence against a child abroad. The purpose of the 1996 Act, as expressed in the Long Title, is to extend the criminal law of the State to sexual acts involving children done outside this State by citizens of this country or by persons ordinarily resident here.

The offences under sections 3 and 4 of the 1996 Act are, by any standards, despicable but they are at a remove from the actual abuse of the child. They are likely to be committed by persons in this country who, by their actions, facilitate sexual abuse of children in other countries by persons normally resident here. Thus, they can be prosecuted under the 1996 Act if they commit the offences here. If the offences are committed by persons in another country they can be prosecuted in that country; such persons, of course, would not have any connection with this country. That is why the offences were not included in the Schedule of the 1996 Act and why they would not come under the terms of the Long Title.

I appreciate the sentiments behind the amendment tabled by Deputy Upton. While I have outlined why the amendment should not be accepted, I would like some more time to consider why it should be accepted. In those circumstances, I ask him to resubmit it on Report Stage. I cannot guarantee it will be accepted, even in a modified form, but I can see precisely where he is coming from and I would like an opportunity to look at it further. If it were to be included in a review of the 1996 Act in two or three years' time, one could be forgiven for asking oneself why it was not done in 1998.

The Minister has said he will accept Deputy Upton's amendment No. 26 if he resubmits it on Report Stage.

There is a printing error in amendment No. 38: the word "excising" should read "exercising".

Amendment, by leave, withdrawn.
Section 11 agreed to.
Title agreed to.
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