Vol. 1 No. 9
I welcome the Minister and his officials to the committee. I apologise for the delay. We now commence consideration of Committee Stage of the Sex Offenders Bill, 2000, which was referred by the Dáil to the Select Committee. It is proposed to adjourn this meeting at 4.15 p.m. to allow Members attend the Order of Business. Is that agreed? Agreed.
SECTION 1.
I move amendment No. 1:
In page 5, between lines 21 and 22, to insert the following subsection:
"(2) As soon as may be after the end of each year beginning with the year in which this Act is passed, the Minister shall prepare and lay before each House of the Oireachtas a report setting out the measures taken to rehabilitate sex offenders, including the rehabilitation of offenders in custody, and shall specify the number of such offenders, the number who applied for or sought to avail of such measures, and the number to whom such measures were provided.".
The purpose of the amendment is to ensure that at the end of each year, beginning with the year in which the Act is passed, a report is laid before the Houses of the Oireachtas setting out the various aspects of the treatment and rehabilitation of sex offenders, the numbers in custody, etc. This Bill and the establishment of a register are welcome. However, it is only part of our approach to this issue. We need a co-ordinated approach to ensure these heinous crimes do not occur in the first place.
When someone is found guilty of a sexual offence and is charged and imprisoned, we must be able to monitor the level of treatment they receive. We must be able to monitor the number of offenders receiving treatment in prison. It is more beneficial to society if effective treatment is provided for people in prison rather than putting them on a sex offenders register and allowing them out on the streets. While the sex offenders register is a positive measure, it is not a substitute for the treatment of people in prison.
We are all aware that there are only ten places currently available on the dedicated treatment programme in Arbour Hill. I know another programme is planned for the Curragh but it is not yet up and running. That number of places is not adequate for the number of sex offenders in our prisons. The statistics show that while there may not be an increase in other crimes, there is an increase in sexual crime and it is also becoming more vicious.
The purpose of the amendment is to ensure that we monitor the level of treatment for sex offenders. In 1999, 80 sex offenders were released, of which only five had completed the dedicated treatment programme in Arbour Hill. A large number of offenders are going back into the community without receiving the appropriate treatment which is available. Will the Minister accept the amendment so we can monitor how we deal with sex offenders. This will be in addition to the register which will be kept in the community.
I support the amendment. The level of rehabilitation sex offenders receive in prison has been discussed on numerous occasions over the years. There are approximately 266 sex offenders in prison with ten rehabilitative places available. It is an important aspect of incarcerating sex offenders that they are given the opportunity and the motivation to seek rehabilitation. While we often speak about the non-rehabilitative aspects of paedophiles, it is known that many sex offenders can be rehabilitated and can come to understand that their sex orientation and urges are not right and are extremely hurtful to children. Some paedophiles pay for private counselling because such counselling is not available within the health service, although that is an issue for another Minister. It is important that we highlight the rehabilitative aspect of sex offenders in prison. I second the amendment.
The type of information this amendment seeks is already reported regularly by me to the Oireachtas, usually by way of reply to parliamentary questions. The most recent occasion when I gave such information was last Thursday in response to a parliamentary question. In addition, I have asked the director general of the Irish prison service to ensure the development of rehabilitative programmes for sex offenders is given priority attention.
In this context, the sex offenders' group treatment programme in Arbour Hill is delivered by officers of the probation, welfare and psychology services of my Department. It can cater, as Deputy O'Sullivan said, for up to ten prisoners at one time and it takes ten or 11 months to complete the course. All convicted sex offenders, regardless of the institution in which they are held, are invited to apply for inclusion in this programme.
A sex offenders' group treatment programme will also be introduced in the Curragh during the current year. It will be operated by the probation and welfare service and psychology services in the same mode as the Arbour Hill programme. That obviously will increase our capacity, in terms of the group treatment programmes. However, I do not want people to be under the impression that the Arbour Hill programme or the similar programme to be introduced in the Curragh are the only treatments available to sex offenders in our prisons. That is not the case.
A steering group to put in place multi-disciplinary prisoner programmes was established very recently. The group is chaired by a senior prisoner governor and comprises representatives from the Department, senior prison service management, probation and welfare service, psychology service, prison education and the POA. Its first task will be to oversee the establishment of a new multi-disciplinary sex offender programme. To this end, the Irish prison service has recruited the services of a research psychologist to assist in the development of this programme. It is expected it will be delivered by a multi-disciplinary team consisting of prison officers, psychologists, probation and welfare service staff and teachers.
The ultimate objective for the Irish prison service is to develop and put in place a wider range of rehabilitation programmes for sex offenders than are currently available to ensure they operate on independently accredited selection, training and service bases and that they reach every sex offender in custody who is willing to participate at some level in their personal rehabilitation and relapse prevention.
The latter point about willingness by prisoners convicted of sex offences to co-operate in personal rehabilitation programmes is important because it is the experience in many prison jurisdictions, including Ireland, that a significant percentage of prisoners decline the opportunity to partake in this work. I do not believe compulsion is a realistic or even a legal option at this point.
I expect the director general of the Irish prison service to provide in his annual report to me all the information which Deputy O'Sullivan seeks in her amendment. I will ensure this document is made available to Members of the Oireachtas. For all those reasons, I am unable to accept the amendment.
I would prefer if this amendment were included in the Bill because it would be an appropriate mechanism to provide this information regularly. However, I accept the Minister gives this information whenever it is requested by way of parliamentary question. The important thing is that the content of the information is provided.
I welcome what the Minister said about the planned, more co-ordinated approach. However, a small number of prisoners avail of this treatment in prison. The Bill seems to offer the possibility of people being obliged to attend counselling post release. Why can people not be obliged to attend counselling while they are in prison if this Bill can oblige them to do so when they are released? Is there some way that people can be forced to confront what they have done? As Deputy Neville pointed out in the Dáil, these people are frequently in denial about what they have done and do not face the reality of what they have perpetrated on their victims. I would like some exploration of the possibility of making these people attend treatment. I imagine the ones who need it most are those who will not volunteer. Research indicates that young sex offenders, in particular, have a higher rate of response to treatment and there is a real hope they can be directed on a different path if they are treated.
While I realise this issue is not really the purpose of this Bill, I am taking this opportunity to raise it because, as I said, there is a need for continuity in this area. It is not enough to have a set of rules for when people are released, yet have so many offenders in prison who do not go forward for treatment and, therefore, do not confront the appalling crime they have committed.
We will allow latitude in this regard and hope for a quid pro quo later.
The fundamental point is that the treatment is voluntary. Interested offenders must apply for a place on the programme. They are then assessed by the treatment team on their suitability to participate. I am not sure compulsion is a realistic option. Some psychologists feel that compulsion is an option. However, from my research, it seems the majority of psychologists feel compulsion is not a serious option.
At present, the criteria underlying the treatment process are that the individual must volunteer and be suitable. A person can volunteer and not be suitable, while a suitable person might not volunteer. Where we have both ingredients, however, it is the experience that treatment can be quite successful.
Sometimes the impression is given that only ten people have ever completed the group treatment in Arbour Hill. In fact, since its inception about 54 prisoners have completed the programme and many of them have been released, none of whom has been reconvicted of a sex offence to date. That is very encouraging. As I said earlier, it is planned to extend the programme to the Curragh prison, which currently holds about 100 sex offenders, this year.
I recognise the need to improve the treatment of sex offenders in our prisons. That is why I have taken the steps I outlined, why we have the steering group and why there are other forms of treatment in our prison system. It is my intention to continue to improve the service to ensure the danger to the public is minimised and that the opportunity for rehabilitation is available to prisoners to the greatest extent possible.
I will not press the amendment but I will return to this subject when we reach section 29, which deals with the conditions of post-release supervision.
I move amendment No. 2:
In page 6, subsection (1), line 8, to delete "or practice".
This concerns the question of whether remission should be by rules or practice. I suggest that it should be by rules rather than by practice. I understand that since the abolition of penal servitude in 1997, the concept of practice of remission does not arise. I propose that these things should be determined by rules rather than by what might have been built up over time.
The standard remission on fixed sentences is fixed at 25%, as set out in the Rules for the Governance of Prisons, 1947. It has been the practice for some time to allow offenders in open institutions, or in certain work parties, a higher remission rate of 50%. New rules to replace the 1947 prison rules have been drafted and submitted to the Office of the Attorney General for legal advice on final drafting. The new rules will formalise the application of the different remission rates. As this Bill is likely to be enacted before the new rules are in place, my advice is that the present wording of subsection (1) should stand. For that reason I do not propose to accept Deputy O'Sullivan's amendment on this occasion.
There is not a point of principle at stake between me and the Minister. I presume that on Report Stage, if those rules have become established, the Minister will accept the amendment, so I will not press it at this time.
I move amendment No. 3:
In page 7, subsection (3), line 21, to delete "3" and substitute "2".
This is a very delicate area. It is difficult to know how to deal with a person who is, in effect, under age. In the case of a person who is guilty of the offence and is more than two years older than the victim or other party, it should be two years rather than three. I looked at this matter in great detail when drawing up my Bill and it is an extremely difficult area. It is something we should tease out. We should obtain the Minister's view on why he decided on a gap of three years? When dealing with young people, a two year gap would be the criteria by which one could say that a person committed a sexual offence.
The aim of the age limit in subsection (3) is to draw a distinction between sexual activity taking place between young people of broadly similar age in cases where one person is significantly older than the other, or where an abuse of authority or trust may be involved. My proposal is that consensual teenage sexual activity - where the victim is 15 to 17 years old and the other party to the offence is not more than three years older than the victim - should be exempted from the notification requirement.
Where an offence has been committed in such circumstances and the sentence is non-custodial, it is almost certainly as part of a consensual relationship that does not imply that the offender represents any future danger. The activity itself remains a criminal offence unaffected by the exemption from the notification obligation. If the Bill is to be effective it must be practical and have regard to social realities. My concern was not to expose a young person who engages in sexual intercourse with a willing and socially immature partner of like age to a notification requirement aimed at paedophiles and serious sex offenders, when he or she does not fall into either category. The age limits which attract the exemption in this area are necessarily arbitrary. If the amendment proposed by Deputy Neville was made, the effect would be to potentially expose an 18 year old partner of a 15 year old teenager to the notification requirement with all that this entails.
The three year age gap proposed in the Bill, represents a more realistic difference in age, having regard to the purpose of the Bill. I agree with Deputy Neville that it is difficult to reach a conclusion about the optimum age in respect of this matter. I, also, had a certain amount of difficulty with it, just as Deputy Neville says he had when drafting his Bill. The decision is necessarily arbitrary. I am fairly satisfied that three years is about right, although Deputy Neville may feel it is not and he is entitled to that opinion. In general terms, I am not disposed towards accepting the amendment for the reasons I have outlined.
I found it difficult to decide on it. The intention is to ensure that people are protected. As regards 14, 15, 16 or 17 year olds, perhaps it is an area that should be seriously examined. I would go along with the Minister, to a large extent, when he says that in most circumstances it is unlikely that the person would be a future danger or, in other words, is an intentional offender. On that basis, because of my own hesitation about it, I will not press the amendment. It is something I have thought a great deal about and I could not make up my mind, so I do not want to play politics with this matter. I felt I should hear the Minister's view on it.
For information purposes, the minimum age is 15, so it would not be possible to go below that anyway.
Amendments Nos. 4 and 5 are related and may be discussed together by agreement.
I move amendment No. 4:
In page 7, line 39, after "conviction" to insert "or the date found guilty but insane".
This amendment aims to cover a situation where the relevant date means the date of conviction for the sexual offence concerned. I wanted to cover a situation where a person was found guilty but insane. I wanted to ensure that a person who went through the courts but was insane at the time, should also be subject to the notification. The Minister will accept it is important that there should be no danger that people who are mentally disturbed and who sexually abuse children would not be subject to the notification requirements of the Bill.
I would refer Deputy Neville to page 5 of the definition section of conviction where he will note that the finding of "guilty but insane" is included. His point is well taken but provision is made for what he is seeking. He is correct in what he is saying, that it is required, but it is included under the definition section in page 5, although, admittedly, it is not in the section itself. Therefore, it is catered for.
I move amendment No. 6:
In page 8, subsection (2)(b), to delete lines 7 to 11 and substitute “offence”.
I do not know if this amendment is properly worded, but my intention is to delete paragraphs (i), (ii) and (iii) of subsection (2)(b) which provides that a sentence imposed on a person at any time in respect of an offence covering parts of this Bill should be subject to the requirements of the Bill. The Minister’s proposal is limiting the requirements of the Bill. There is concern, as expressed earlier, that people have come into the State who are a danger in sexually abusing children. This amendment would cover all circumstances.
The effect of this amendment would be to introduce full retrospectivity into the notification system. In other words, any person who was ever convicted of a sexual offence in this country would be obliged to notify the Garda Síochána of his or her name or address, no matter what their age or circumstances. There may be no legal impediment to full retrospectivity as opposed to partial retrospectivity as provided for in the Bill, but the practical difficulties are such as to make it unworkable and even unfair. When preparing the Bill, I was aware that full retrospectivity would be desirable but I have come to the conclusion that it would be impracticable.
The main argument in favour of it, as Deputy Neville points out, is that it would offer greater protection to vulnerable persons. There is a provision later in the Bill that does just that. Let me explain first why I decided in favour of partial retrospectivity. When a convicted person serves his or her sentence or otherwise pays the penalty for an offence, he or she is then free. All contact with the criminal justice system is finished. As the years go by and no further offending takes place, the offenders are more and more assimilated into society, working and raising families, or they may have left the country and so on. Under my proposal, it is up to the offender to notify the gardaí of his or her name and address. The gardaí will not go after the offenders telling them to register.
In the case of persons still in contact with the criminal justice system, the gardaí will know straight away whether an offender has notified them. In the case of old offences, they will have little knowledge of who should be registering and the offenders themselves may not be aware of this new obligation. Therefore, the register would be incomplete or even incorrect if wrong information was given. The accuracy of the register itself would be compromised resulting in a loss of confidence in it. In my opinion, it is far better to have a register as an actual starting point over which we can stand and which, in the coming years, would provide a full picture of all released sex offenders from that point.
I mention the additional protection for vulnerable people, that is, the sex offender order provided for in Part 3 of the legislation. One purpose of that is to ensure the inclusion in the register of past offenders who still pose a threat. That threat is manifested by their behaviour. A garda can go to court and seek a civil order against such people and one effect of that would be that the offender would be obliged to register just like more recent offenders. I cannot for the reasons stated accept this amendment despite the very good intentions behind it and the positions it is trying to achieve. However, I emphasise that what I propose in Part 3 will go most of the way towards achieving the same effect which Deputy Neville seeks to achieve without any of the disadvantages I have mentioned.
Will the Minister respond to the concern that known paedophiles, since the introduction of the UK sex offenders Bill, have come to this country? The probationary service in the North of Ireland has publicly stated that it knows people travel South once they are released from prison having been convicted of sex offences in the North of Ireland. Surely, there should be some means of obliging people released from prisons in the UK and Northern Ireland to register. I know people often say this should be worldwide but we must be conscious of the language aspect of it. It is less likely that a paedophile from Europe will offend here because it is not as easy to communicate with the child, although it is still a danger. The real threat comes from the English speaking areas, especially from people coming from the North of Ireland and the UK. The establishment of the sex offenders register has motivated them and they have been identified by the gardaí in some but not all instances. Is there a mechanism in the Bill to ensure that those people who have been released from prison in Britain since the introduction of the sex offenders Bill are obliged to register in Ireland once this Bill is introduced?
Let us be clear about it. There is no obligation on anybody to register anywhere in this jurisdiction for the simple reason that we never had legislation like this before. Obviously, once this legislation is passed, any person coming into the jurisdiction from abroad will be obliged to register. That relates to people convicted subsequent to the passing of this legislation.
What about people who have been convicted and are on the sex register in England who come to this jurisdiction? There is no obligation on them to register for the simple reason that they were convicted before the passing of this legislation. The position in relation to them is the same as it would be for an Irish citizen. If they pose a threat, it is open to the gardaí to make an application to the court for a civil order. This, in turn, would mean that they are obliged to register. Posing a threat would be manifested by their behaviour. For example, if an individual was hanging around a school yard or public toilets behaving in a suspicious manner, the gardaí would be in a position to go to the courts in relation to such an individual.
The question of what to do about people who have been placed on a register abroad before the passage of this legislation and who come into this jurisdiction poses a different kind of problem. I said earlier that I do not want our register to be compromised in any way - in other words, I want to be able to stand over the register. I do not want it to be incomplete. However, Deputy Neville makes a valid point. If a person is registered already in a foreign jurisdiction as a sex offender, it seems to be a fair point that there is a degree of certainty about that. Then the issue is whether that individual should also be obliged to register here even though the legislation which we are passing comes into force subsequent to that person's conviction. I think that is something worth looking at. I take the point, it seems to be well made. I will look at that aspect to see if we can transfer names already on a register in other jurisdictions to our jurisdiction when those people land here.
The other concern one has when talking about sex offenders is the level of reporting of sex offences, or the level of identification of people, who are likely to commit sex offences because, as we know, the level of reporting in this area by families is quite low. Because of social circumstances, people do not want to expose their children to questioning, examination and maybe even doubt and so on. They will try to help the child to recover. In such circumstances, that paedophile gets off the hook and goes on to offend again and again. We need to place controls on those who have been identified after the Bill has been introduced and people who may not come to the attention of the gardaí but who are in danger of offending. The Minister might look at some formula.
I take the point the Minister made that he cannot go back to the foundation of the State and identify everyone who has been convicted of child sex offences and put them on the register. At the same time I am concerned that because of the level of reporting by families as a result of social circumstances, many people who are a danger will not come to the notice of the gardaí and will not come under the order section of this Bill. I accept the Minister will examine the situation where people are on another sex offenders' register. Perhaps there is some way to examine the situation where those who are a threat here are not on the offenders' register. I am unsure of how it could be done. The spirit of my amendment is to ensure that those who are a danger to children prior to the passing of the Bill would also come under the regulations of the Bill.
I support the general point being made by Deputy Neville. I think the Minister will try to accommodate it in some way. Later this afternoon we will debate an EU regulation in the Dáil which is about enforcing judgments in various countries. I imagine it would be logical, in the context of the EU, that if somebody is on a sex offenders' register in one EU country it should be possible for that information to be transferred to another EU country. Even if it cannot be done in this Bill, there must be some mechanism to do it. I support the general point made.
On the other point about people who have offended in this country prior to the passing of this Bill, will the civil order to which the Minister referred be used where the Garda is aware of somebody who might be a threat?
Yes, it is my intention to examine this entire area within the context of foreign registers and establish whether I can bring forward an amendment on Report Stage which would in some way allay the concerns expressed by the Deputies. There is a practical difficulty in regard to full retrospectivity, which I have outlined, even if there is no legal difficulty. If we try to obtain full retrospectivity the register will be incomplete and, therefore, its accuracy will be compromised. It is better that a system is put in place in which people can have confidence.
I accept the points made in regard to people convicted prior to the passage of the legislation and who pose a threat. Such people can be the subject of a court order and if such an order is made against them they will be obliged to register. Failure to register will be a criminal offence.
Amendments Nos. 8, 9, 10 and 11 are related to amendment No. 7. Is it agreed that all these amendments be discussed together? Agreed.
I move amendment No. 7:
In page 8, subsection (3)(a), line 22, to delete “2 years” and substitute “6 months”.
This section should be applied to those who have been sentenced to imprisonment for more than six months rather than two years. This area should be tightened up and I would like to hear the Minister's view on the matter.
These amendments propose to reduce the severity of sentence required before a person becomes liable to the relevant period for notification. For example, under amendment No. 7 a lifetime notification requirement would apply following a six month prison sentence instead of a two year sentence. While the provisions in the Bill are to some extent arbitrary and deciding on the duration is not an exact science, I had two major concerns which directly influenced my proposals.
First, I investigated the English durations, took them as a baseline and examined them to see if they were appropriate for Ireland. In other words, could I justify proposing different durations? The only change I could justify using that yardstick was to reduce the two and a half year prison sentence for the lifetime notification requirement to two years. I did this to bring cases within the jurisdiction of the District Court in certain circumstances.
Second, and most important, I had to have regard to proportionality, a concept developed over recent years by our courts. The balance between sentence and the notification obligation is about right and to extend that application as proposed in the amendments would stretch that balance possibly to breaking point. Accordingly, I cannot accept these amendments.
The courts have developed a rule of proportionality. In other words, the court examines the gravity of the offence and ascertains whether the sanction imposed is proportionate to the gravity of that offence. It is important that this balance should be maintained and I believe it has been in this section. On the other hand, were we to reduce it to six months and oblige a person to notify for life or to be on the register for life, I do not believe we would have satisfied the proportionality test.
I accept these measurements are to a large extent arbitrary and that there is not an exact science. I do not claim that I am precisely correct but having regard to the rules I outlined and the practical circumstances, my proposals are more or less satisfactory.
I accept the Minister's comments to an extent but we are the legislators and we decide what the courts should do. The legislation provides that if somebody is on the register for an indefinite period he can go to the courts and have that reviewed. However, where somebody has offended to the extent that the court is obliged to sentence him or her to six months or more imprisonment, he or she must pose a threat to children and to ensure protection he or she should be placed on the register for life and the courts should be permitted to examine his or her case in regard to the removal of the offender's name from the register. In other words, he or she will have to make the case that he or she is no longer a danger to children and his or her name should be removed from the register. The courts should decide at that stage. The onus would be on them rather than us deciding here that a person sentenced to between six months and two years imprisonment should not be on the register indefinitely.
The philosophy underlying the entire concept is the longer the prison sentence imposed by the court, the greater the threat of the offender. That stands up even in the context of proportionality. People who are imprisoned for less than two years will not be exempt. A person will have a notification requirement of ten years if he or she is imprisoned for between six months and two years and seven years if the term of imprisonment is six months or less. Even where a person is convicted but his or her sentence is suspended or if, for example, the individual is subject to a community service order, the notification requirement is five years.
There is no doubt that these periods of notification are strict and they take account of the seriousness of the offence on the basis that one would expect the court to grant a greater level of imprisonment depending on the gravity of the offence. I and my officials have given a great deal of consideration to this and this is what we decided. I accept arguments can be made against it but on balance we felt this was the correct way to proceed.
I accept the principle of proportionality and it is inherent in my amendments. I have proposed a shorter period on the register for a person who is sentenced to six months imprisonment or less. A person who is imprisoned for six months or more should be on the register for life and the courts can consider removing them from it. A person who is sentenced to less than six months imprisonment should be on the register for ten years and the courts could then decide whether he or she should be removed. It is a question of degree rather than principle and where one draws the line on whether a person should be on the register for life.
The essential difficulty is that if I were to accept the Deputy's amendment, virtually every person convicted in the courts would be on the register forever——
Not necessarily.
——because people convicted of sexual offences would receive a prison sentence and very few would be sentenced to six months imprisonment or less. However, sentences of six months to two years would be much more common.
The difficulty is that I must try to relate the gravity of the offence to the period of notification. The only way I have of doing that is by accepting the fundamental point that the court will invariably impose a greater sentence depending upon the gravity of the offence. In other words, the graver the offence, the greater the sentence. I do not say that Deputy Neville does not have an argument. It is a question of achieving the right balance.
Regarding section 8(3)(a) where an indefinite duration relates to a term of more than two years, does that give a judge discretion to reduce the amount of time?
Deputy Neville has adverted to the fact that there is provision in the legislation which will provide for discretion on the part of the court in terms of terminating the notification requirement if an application is made to the court after a period of not less than ten years. The court will then have discretion, even if the individual has been obliged to register for life, which is what is intended by an indefinite duration.
Perhaps we could examine it again on Report Stage.
I move amendment No. 12:
In page 9, before section 9, to insert the following new section:
"9.-The Governor of the prison or place of detention or the medical director of the hospital in which the offender was held shall inform the Garda Commissioner, in writing, of the date of release from that institution or place of detention or hospital of a person who is subject to the notification requirements of this Part.".
This will place the onus on the governor of a prison or place of detention or the medical director of a hospital in which an offender is held to inform the Garda Síochána in writing of the date of release from that institution, place of detention or hospital of a person who is subject to the notification requirements of this Part. In other words, there should be some onus on institutions where people convicted of sex offences are held to give notice that these people are being released rather than leaving it solely to the people themselves to do the reporting.
At present, the prison authorities contact the Garda prior to the release of an individual serving a sentence for a sex offence. I accept the principle underlying Deputy Neville's amendment which would place an informal arrangement on a statutory basis. I will go back to the parliamentary counsel and the Department of Health and Children, which has responsibility for the Central Mental Hospital, for a final wording and if no problems are raised - I do not anticipate too many - it is my intention to accept the spirit of Deputy Neville's amendment by bringing forward the relevant wording on Report Stage.
Amendments Nos. 13, 16, 18, 20, 22, 24, 25, 27, 34 and 41 form a composite proposal and amendments Nos. 17, 19, 21, 23, 26, 33, 35 and 40 form an alternative composite proposal. Therefore, amendments Nos. 13, 16 to 27, inclusive, 33 to 35, inclusive, 40 and 41 may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 13:
In page 9, subsection (1), line 37, to delete "10" and substitute "5".
The purpose of this amendment is to reduce the time in which a person is obliged to report to the Garda Síochána and go on the register from a period of ten days from being released from custody or from entering the country when registered outside it to five days. I know it is a bit arbitrary but I visualise a person coming to Ireland from the UK and spending eight days in the country and going out again. Similarly, people who are severely disturbed, hardened paedophiles who believe that having sex with children is not wrong and that we are wrong for placing obligations on them and for saying their sexual orientation is wrong, and who do not realise or accept the harm they do to children, may be released from prison and are free to move around for ten days without registering.
I know the British register is also ten days but why should it be such here? Why not one day, so that a person would be obliged to report to the Garda within 24 hours of being released from prison or of coming into the country? I propose five days as an arbitrary position but my feeling was to propose 24 hours. Will the Minister tell us why he decided upon ten days as the period in which a person who has been released from prison or who enters the country has to register on a sex offenders' register? He or she does not have to register for the first ten days and the Garda may not be aware that he or she is in the jurisdiction.
There are two different points here. I support Deputy Neville in amendments Nos. 13 and 16 where he seeks to have a shorter period in which the person must register or report. The amendments I tabled relate to when a person leaves the country. If I understand the Bill correctly, a person cannot go for more than ten days' holidays without having to give information relating to his or her date of birth and location. That seems to be an arbitrary figure in the opposite sense to the point made by Deputy Neville. It suggests that a person cannot leave the country for more than ten days without giving this information. If one can go on a holiday for ten days without supplying this information, why can one not go on a longer holiday? It is a matter of judgment and of what arbitrary figures we should choose.
In effect, there are two separate points, and I support Deputy Neville on the first point, which is that the least possible period should elapse while people are wandering around without being on a register. However, in the other case, where a person is on holidays, if I understand it correctly, he or she is still on the register but it is a matter of how long he or she can go away for without notifying the authorities as to where he or she is, giving his or her date of birth and so on. They are two different points.
They are two different points. I do not know if such people would be welcome on holiday in Killarney or Caherciveen.
I cannot accept the amendments for the following reasons. The number of days allowable to a sex offender to notify the Garda of his or her current name and address is, to some extent, as both Deputies said, arbitrary. Within reason, any number of days which are proposed may fall within an acceptable limit. In the United Kingdom, the period of 14 days was chosen. In the Irish context, bearing in mind our additional provisions relating to travel abroad and offences committed abroad, I consider ten days the optimum figure. It could have been eight or nine, or anything up to 14 days. The important point is that it is within certain acceptable limits that are fair to the offender and in no way jeopardise the workings of the new notification system.
Deputy O'Sullivan's amendments propose to raise the number of days for compliance with the notification system from ten to 35 days. In examining these amendments I have had regard to the following important considerations. First, will they affect the compliance rate? It is difficult to know the answer to that but I suspect they might. Thirty five days is a long time between conviction or release from prison, as the case may be, and notifying the Garda. The longer that period, the greater the temptation to ignore the notification requirement or even to forget it.
Second, and these considerations are in no particular order of importance, would children be more or less safe in the context of a significantly longer notification period? Again, it would be easy to exaggerate the possible consequences for children in the absence of hard evidence but common sense would suggest that 35 days would, if anything, provide a less safe environment for children.
Third, is ten days too short in the context of fair procedures and in particular in the context of a non-punitive scheme? In coming down in favour of ten days, I was conscious of the need to be fair, not only because of the inherent correctness but also because of the possible effect on the compliance rate if the procedure was interpreted as being unfair. To sum up, I concluded that 35 days was too long and well outside the acceptable limit to which I referred earlier. Accordingly, I cannot accept these amendments.
Regarding Deputy Neville's amendments seeking to reduce the ten day period of notification to five days, I would have more sympathy with this approach, but I must again consider its possible effect on the compliance rate and protection of children. Clearly the protection of children is the most important consideration and that would mainly be enhanced through a high compliance rate. Because of the non-punitive concept of the system, it must be an easy system with which to comply. A compliance rate of 96% to 97% in Northern Ireland and Britain would suggest that they have achieved an equitable balance in respect of the number of days. However, because of the large number of sex offenders involved in real terms and the many police forces tracking them, a relatively large number of sex offenders remained unaccounted for in those jurisdictions. While ideally one would have a 100% compliance rate, a 97% rate would result in very few sex offenders being unaccounted for here. With one national police force, the difficulties of achieving proper co-ordination between forces does not exist, thus making it easier to find the potential occasional non-complier.
It seems the compliance rate would not be affected by changing the ten days one way or the other by two days, but I would not be so sure about a substantial reduction to five days. I would have to be convinced that such a reduction would not introduce difficulties affecting the ability to comply with the obligation to notify and that was basically fair to the offender, allowing him or her to find his or her feet following release from what may be a long prison sentence. In addition, I would have to examine the provisions relating to offences committed abroad in order to see if five days would be a realistic period in those circumstances. I started by saying ten days is an arbitrary figure, but any alternative would also be arbitrary. My concern is to provide the best notification period having regard to the issues I have outlined. I have heard nothing to change my mind, but in fairness to the amendments and the arguments, I will discuss this with experts on sex offenders and if a change in the notification period is warranted I will bring forward the necessary amendment on Report Stage.
I thank the Minister. In this day and age I presume a sex offenders' register is on computer. If the gardaí have knowledge of an offender being released by a prison or hospital, after five days it should come to their notice that the person has not registered. Under such circumstances compliance should not be an issue as the person has committed an offence. The gardaí should be immediately aware of it because they can check a confidential computerised sex register shared by all Garda stations. Compliance should be catered for in this way.
That would be an operational matter for the Garda.
Yes, but the Minister made a strong case for compliance.
Deputies Neville and O'Sullivan are poles apart and the Minister holds the centre ground.
I am not poles apart——
The Minister will come back to this on Report Stage.
I am not poles apart from Deputy Neville on the point that people should be on the register in the first place. My amendment relates to people who have left the State. I wanted to clarify that as I agree with Deputy Neville on this.
That may be the Deputy's intention, but the words as I read them——
It relates to people who have left the State.
It is a technical point. I accept what the Deputy says.
Will Deputies accept that this will be addressed again on Report Stage?
Amendments Nos. 14, 15 and 42 are related and may be taken together by agreement.
I move amendment No. 14:
In page 9, subsection (1), between lines 41 and 42, to insert the following:
"(b) his or her fingerprints,”.
This amendment seeks to ensure that people do not find a way around registration. The Bill caters for a person changing his or her name and people can also change their appearance, as we know from the criminal fraternity in the past. Taking fingerprints would ensure that if there was a situation where the gardaí were suspicious of a person they would have a further check to ensure if a person was who he or she claimed to be. My recollection is that other sex offenders' registers include this provision.
In preparing the provision relating to information which a convicted sex offender would have to supply when registering, I was conscious of Northern Irish requirements and the high compliance rate of 97% in that jurisdiction - there is a direct link between the two. Whatever our feelings about sex offenders and their devious nature and crimes, it would be counter-productive to demonise them at a time when they may be making an effort to avoid offending further.
There is a verifiable link between the amount of information required to be notified and the compliance rate. In the final analysis, it is the compliance rate that is important. The non-punitive context of this provision is intended to ensure that the actual notification system is easy to comply with and does not frighten sex offenders from notifying the gardaí. Any fear, however unfounded or irrational, of, say, photographs given at the time of notification being made public would lessen the compliance rate and, therefore, the benefits of the notification system.
Regarding photographs in particular, I am preparing legislation under which the gardaí would have powers to photograph any person arrested. In addition, almost every person on whom a prison sentence is imposed would have a photograph taken and those serving long sentences would have their photograph retaken close to the release date. These could then be given to the gardaí. This is a better way to deal with photographs than picking out one group of offenders in the way proposed.
Regarding offenders from abroad, photographs can be made available through normal police channels. The amendment also refers to fingerprints. Apart from other considerations, I see no benefit in a person being required to give fingerprints when registering and for the reasons stated I am not in a position to accept these amendments.
What is the Minister's view of my comments on compliance in relation to modern information systems? The gardaí should be in a position to know at any time who has not complied. Under this Bill those people have then committed an offence and should be charged with that offence.
The position at present under the legislation is that there will be a sufficient amount of knowledge available to the gardaí in relation to non-compliance. If a person is not in contact with the system there is an obligation to notify following conviction. The Garda will know who is in contact with the criminal justice system on the day this legislation becomes law. It will also be known to it subsequently when people are convicted of sex offences which come within the ambit of this legislation. I am satisfied, therefore, that the Garda will be in a position to know and, in those circumstances, this is the best way to proceed. I would be concerned about picking out any class of offender and stating that different rules would apply to him or her than apply to other offenders. That would not be helpful, particularly with regard to the compliance rate.
The experience has been that the more information one seeks from the person registering, the less compliant he or she tends to be. That is a natural human reaction as, I suppose there is the fear of, for example, the material being in existence for a long time, even if those involved have nothing to fear. A compliance rate of 96% to 97% in Britain and Northern Ireland indicates that the best way to ensure maximum compliance is to get the essentials. That is what is important, to get the essentials and to ensure that the compliance rate is high.
Did the Minister not say that photographing and fingerprinting are used in the UK?
No.
I thought they were. These people are not offenders at this stage. They have served their time and have repaid their debt to the State. This is a protection against future violation and offending against children. Not all those who sexually abuse children are paedophiles, as in many cases it is a power issue within families. However, there are also paedophiles who are predators and who do not believe it is wrong to have sex with children. These people travel and befriend families to obtain their trust and to get an opportunity to act out their sexual preferences and orientations. My proposal seeks to ensure that such people are tracked as far as is possible. I am not hung up on this issue as it was an added measure to ensure that such people are tracked.
I take the Minister's point, particularly with regard to how negative it might be in terms of photographs and the danger of such photographs being used at a later stage. However, it is becoming easier for people to change their appearance. Is there any way in which fingerprinting can be recorded? Would a record be kept from a person's date of conviction? Fingerprinting is not as obtrusive or as open to abuse as photographs. However, extraordinary things can be done to change a person's appearance. This is particularly the case with paedophiles who might want to escape and who might be committed to the pursuit of their perversity. Perhaps fingerprinting would be the only way in which these people could be tracked. Would it be available to be registered as part of the continuing register from the period of the conviction?
In many ways the situation as regards photographs is similar to that of fingerprinting. People can and do have an irrational fear of photographs and fingerprints. On the other hand, if one is asking them to notify one of their names and addresses - no more and no less - and notify any change to their names or addresses, there will be neither a rational nor irrational fear of that request.
I have examined the practice in other jurisdictions and the situation in Britain and Northern Ireland is as I have outlined. Their compliance rate is 96% or 97%, which is very high. We have only one police force so we do not have the difficulty of having to contact different segments of the force at different times. We have one national force whereas there are several police forces in Britain.
The authorities are not debarred from obtaining a photograph. If the Garda wants a photograph of a given prisoner, it should be possible for it to obtain it in all probability from the prison authorities. I have stated that we are bringing forward legislation in the near future to provide for photographing of all prisoners. These photographs can be retaken before people are released. That would apply to all prisoners, not just to one category of offender. It would not be linked to an individual registering.
The danger in linking fingerprinting and photographs with an individual registering is that it could and probably would lead to a greater degree of non-compliance than might otherwise be the case. Therefore, it is not wise to proceed down that road. However, options are not closed off as a result of the fact that one does not link fingerprints and photographs to an individual giving the information for the purposes of the register. This is just the essential information.
I move amendment No. 28:
In page 10, subsection (6), to delete lines 27 and 28 and substitute "state the person's-".
This amendment concerns notification and states that a notification given to the Garda Síochána by any person shall not be regarded as complying with the subsection unless it does certain things. I propose that we should simply say that the notification shall "state the person's-" and so on. In other words, that the whole process should not be invalid if it is not complete. For example, if a person has been released and he or she comes to a Garda station within the stated period and omits to give his or her date of birth, such people should not be considered to have failed to comply with the timescale. In other words, the whole process should not be considered as non-compliant because part of the information is left out. I am seeking a little common sense in terms of not deeming the person to have failed to comply if part of the information has been left out and that such people could be asked to come back and give that information or whatever.
I read this as a drafting amendment and the wording seemed fine. I am considering consulting the parliamentary counsel to the Government to see if we can accept it.
So, the amendment can be taken again on Report Stage.
That is fine.
I move amendment No. 29:
In page 10, subsection (6)(a), line 29, after “date of birth” to insert “, if required by a member of the Garda Síochána,”.
This amendment makes a similar point to amendment No. 28. It proposes that people should have to give their date of birth only if required by a garda. If a person has returned from holiday presumably his or her date of birth will already be on the register, so it should not be necessary to state the date of birth again in all cases. This is a minor point but I will put it to the Minister.
A person notifying the Garda Síochána under Part II of the Bill must state three things, namely, date of birth, name and address. They are the bare essentials to which I referred earlier.
I move amendment No. 30:
In page 10, subsection (7), between lines 40 and 41, to insert the following:
"(d) is detained in hospital and is medically certified as being incapable of complying with the notification requirements of this Part.”.
This is for the purpose of determining a period for registration and the disregarding of any time when the person is remanded in custody, serving a sentence or on temporary release under the Criminal Justice Act, 1960. The amendment will include people detained in hospital and who are medically certified as being incapable of complying with the notification requirements of this Part. The amendment is aimed, for example, at somebody who had a severe stroke and is recuperating, or had a serious accident and is medically certified as being incapable of complying - they could be unconscious.
This seems to be a sensible amendment and I intend to return to the parliamentary counsel to have a discussion on it to see how best the concern addressed by Deputy Neville can be resolved. It is sensible and I thank the Deputy for it.
Amendments Nos. 31 and 32 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 31:
In page 10, subsection (8)(a), lines 42 and 43, to delete “which is a divisional or district headquarters”.
I propose that it should not be necessary to go to a divisional or district headquarters to notify the gardaí - I do not see why a person could not go to any Garda station. Surely the information would be passed on by a Garda station to the relevant headquarters where the register is kept.
The difficulty is that some of the smaller stations are open only some days per week or some hours per day. The other difficulty is that some smaller stations could not cope with this or with persons notifying them in person. It is a logistical problem. Advances in technology may allow for other means of notification in the future and provision is made for the necessary means to be prescribed in regulations. I want to ensure that records are kept in an efficient and up to date way, and smaller stations may not be fully computerised. In the circumstances it is best to confine the matter to what is proposed.
Are divisional and district headquarters widely spread throughout the State?
Yes, they are very widely spread throughout the State. They are in every county and every urban centre. There are a number of such Garda stations in every county.
I would have thought that the communications in the Garda Síochána were adequate to comply with my amendment, but I will not press it.
Amendments Nos. 36, 38 and 39 are related and may be discussed together by agreement.
I move amendment No. 36:
In page 11, subsection (1), line 21, to delete "for a period of an indefinite duration".
This concerns the courts power to waive application of the Act. It seems this section allows the court to waive application where the person has been required to report for an indefinite duration, in other words in the worst cases. Why can the court not have the power to waive application of the Act in minor cases? It is a power which should be available to the court.
In her amendment the Deputy wishes to extend the provisions of section 10 to all persons required to notify the Garda of their names and addresses, not just those with a lifetime requirement. Deputy Neville, on the other hand, wishes to raise the time in which an application for discharge can be made to the court from ten to 15 years. Section 10 allows a person on whom a lifetime notification requirement has been imposed to apply to the court more than ten years after his or her release from prison to be discharged from that requirement. This section did not form part of the original proposals. However, on legal advice based on proportionality, to which I already referred, I included this section. I do not envisage it being used very often. A person who applies runs the risk of being refused which would, in my opinion, be worse than continuing to comply with a not very onerous obligation.
Like many of the other time limits in the Bill, there is a degree of arbitrariness about the ten years in the sense that it could be nine or 11 years. However, in this case I have had to have cognisance of the advice I received on proportionality. I am happy, both in that context and in the interests of fairness, that ten years is as near enough to being right as makes no difference.
The only thing under section 10 is to offer the possibility of discharge from the obligation to notify to those sex offenders whose offences and symptoms have attracted a lifetime notification requirement. I have explained the background to the amendment and it is clear from that that I would not be prepared to accept any dilution of its provisions. In the normal course of events no person can say that a sex offender will or will not re-offend. I do not wish to see sex offenders with five or seven years' notification requirements apply to the court with reports prepared by experts to say that the likelihood of re-offending has reduced from, say, 40% to 30% or some other such figure, because it would be unlikely in the extreme that a report would say the person would not re-offend. This would dilute the effectiveness of the register to a point where it would be useless.
I admit that section 10 appears to contradict what I said earlier about court involvement. However, I accept that some possibility of discharge from the notification requirement where that is a lifetime requirement is necessary and I am happy that the length of the prison sentence plus ten years is long enough before the possibility - I stress possibility - of discharge can even arise. Therefore, I cannot accept these amendments.
I am sorry, Deputy Neville, I did not ask you to contribute before the Minister spoke as we are discussing one of your amendments.
Again, this is an arbitrary figure and to be honest I am not very hung up on ten or 15 years. If a person is not a danger and it has been conclusively decided by the courts that he or she is not a danger to children, he or she should have the opportunity to get off the register. We do not want a State where we are absolutely determined that nobody will ever get off a register even if they have conclusively proven through psychiatric and other reports that they are no longer a danger to children. I will not press my amendment as I accept the principle, even though the Minister has some concerns about the principle.
Neither will I press my amendment, though it would seem a matter of fairness that the people who are not on the register for an indefinite duration should have the same possibilities as people who are on the register for an indefinite duration. I would appreciate if it could again be looked at.
I move amendment No. 37:
In page 11, subsection (1), line 23, after "requirements" to insert "or any one or more of them".
The Minister's proposal is that the court may or may not waive the entire Part of the Act. I am suggesting that the court could apply some provisions while waiving others.
Part II imposes a requirement on certain sex offenders to notify the police of their names and addresses and any changes of these details within specified periods of those changes occurring. The intention of section 10 is to provide that an offender, subject to the requirements of Part I, where a period of ten years has elapsed from the date of his or her discharge from prison, may apply to the court for a discharge from the obligation to so notify. The discharge, if granted, will be from the obligation to register future changes of names and addresses to the Garda Síochána. As the obligation is one to notify the Garda of certain information, I do not think it is appropriate to break it down into its separate components. I do not, therefore, propose to accept Deputy O'Sullivan's amendment.
I will not press the amendment as it is not a very significant point in the context of the purpose of the Bill.
I move amendment No. 43:
In page 14, subsection (1), line 14, to delete "conviction" and substitute "person is sentenced".
This appears to be a drafting error. The certificate should be issued after the sentence rather than after the conviction.
This amendment seeks to replace the word "conviction" in section 13 (1) with the words "person is sentenced". The effect of that would be that the certificate as evidence of a person's being subject to the notification requirements would issue after the sentence is passed by the court. This is an eminently sensible amendment but it is unnecessary as the position is already catered for in section 13. Subsection (1) provides that the court will immediately, on conviction of an offender for the relevant offence, issue a certificate for the persons referred to in subsection (5) indicating that the offender has been convicted of the offence and has become subject to the notification requirements. A minimum five year notification period will apply until the sentence is determined. Subsection (2) provides that once sentence is determined, the court would notify the persons referred to in subsection (5) of the precise notification period applicable in the individual case by way of issuing a second certificate.
I am glad the Minister thinks I am eminently sensible.
I move amendment No. 44:
In page 15, subsection (1), line 22, after "Superintendent," to insert "on notice to the respondent,".
I am suggesting that the respondent should be informed in regard to this matter. Perhaps this is already catered for somewhere in the Bill.
The Deputy's proposal is a reasonable one which I would like to discuss with the parliamentary counsel. Perhaps we can incorporate the spirit of the amendment on Report Stage.
I move amendment No. 45:
In page 16, subsection 6 (b), line 18, to delete “longer” and substitute “other”.
Why should the court not have jurisdiction to make an order for a shorter period of time in a particular case, if that were deemed necessary?
Subsection (6) provides that a sex offender order should have effect for a minimum period of five years and such longer periods as the court may provide for. This minimum period is the same as that provided for in section 8. Deputy O'Sullivan's amendment would allow the court to decide the duration of the sex offender order and would enable an order to be made for less than five years. I explained previously the connection between sections 15 and 8. One of the purposes of section 15 is to ensure that potentially dangerous sex offenders whose names are not on the register must notify the Garda of their names and addresses. It is important that the minimum period in each case is the same and I could not consent to further reducing that minimum period. I have listened to Deputy O'Sullivan's argument but I consider that a case has not been made for amending the provision and, therefore, I cannot accept the amendment.
If evidence were to come to light which suggested that a person was wrongly placed on the register, is there some way of catering for that?
There is always the question of an individual being in a position to go before the courts after a period of ten years. As far as I recall, provision is also made in this legislation for an individual to make an application to the court to correct any errors which may have occurred.
The purpose of my amendment is that if it was discovered that someone was unfairly on the register, a provision would exist whereby he or she could be taken off.
A person always has the right to appeal and, if successful, his or her name would be taken off the register.
Will the Minister assure me that a person's name would be taken off the register in that instance and that it is not necessary to write this into the Bill?
I am certain that there is no need to do so. The facts are that an individual who is obliged to register would have been convicted of a criminal offence and any criminal offence is appealable.
Does that also apply to the register?
It is axiomatic because if a person is convicted, he or she is obliged to register and if a person is not convicted, he or she is not obliged to register.
What if a person is on the register but subsequently has his or her conviction overturned?
If a conviction is overturned, it seems there would no longer be a requirement to register.
A person may be on the register because he or she was convicted but it could be found in a further court case during the five year period that the person was wrongly convicted.
I believe the Deputy's concerns would be met.
Perhaps the Minister will give me chapter and verse on the issue on Report Stage.
I will be happy to do so.
I move amendment No. 46:
In page 18, subsection (1), line 32, to delete ' "State work or service" ' and substitute ' 'State work or a service" '.
This is a drafting amendment.
I move amendment No. 47:
In page 19, subsection (1), lines 1 and 2, to delete "health authority" and substitute "health board".
This, too, is a drafting amendment.
I move amendment No. 48:
In page 20, subsection (1), lines 38 to 41, to delete all words from and including "for which" in line 38 down to and including "not)" in line 41.
I am seeking to allow for post-release supervision even where no sentence is handed down. I understand that post-release supervision can only be imposed in accordance with the Bill where there was a sentence of imprisonment. Post-release supervision is obviously a very useful instrument. In most of these cases, people will be imprisoned, but where they are not, some supervision should be provided for.
This amendment seeks to turn post-release supervision into something else and, as this part of the Bill concerns post-release supervision, the amendment is unacceptable. Part 5 of the Bill introduces a new scheme which would apply when the court considers the appropriate sentence is one of deprivation of liberty and is aimed at providing supervision in the community to sex offenders after their release from prison. This part of the Bill has two aims. First, it is aimed at helping the offender to maintain self-control over his or her offending behaviour and, second, to provide external monitoring of his or her behaviour and activities. It is clear from the wording of Part 5 that the provision cannot be used more generally or for other purposes as envisaged in the amendment. Under the amendment persons convicted of a sexual offence would become eligible for supervision regardless of whether they were imprisoned. Under the law at present, the court can find any offender guilty of an offence and can apply the probation Act which can include supervision by a probation and welfare office. The Circuit Court, on convicting a person of a sex offence, can order the person to be supervised. Therefore, it seems that much of what the amendment seeks to achieve is already covered by our laws and the amendment is unnecessary.
I move amendment No. 49:
In page 21, subsection (2), between lines 11 and 12, to insert the following:
"(a) the need for continuity between rehabilitative measures in custody and those after release from custody,”.
The content of this amendment goes back to the point I made at the outset in regard to the need for rehabilitative measures in custody and thereafter.
While I accept the Deputy's point, I assure her that it is already covered by the Bill's proposed wording.
I move amendment No. 50:
In page 21, subsection 1(b), line 31, after “prison,” to insert “or where no sentence of imprisonment, or a suspended sentence of imprisonment, is imposed, commencing on the date of sentence,”.
This amendment also concerns post-release supervision.
All these arguments have been made already and there is no need for me to repeat the responses. For drafting and policy reasons, I cannot accept the amendment.
I move amendment No. 51:
In page 23, before section 33, but in Part 6, to insert the following new section:
"33.-(1) Access to the Register shall be confined to the Garda Síochána. Information contained in the Register shall not be disclosed to any other person save with the permission of a designated High Court Judge, on the application of a member of the Garda Síochána, not below the rank of Inspector. Such an application, must be heard in camera, shall not be granted, unless in the opinion of the Judge, it is in the interest of public safety to do so.
(2) A Judge who grants an application made pursuant to this section shall specify, in his or her order, the extent to which disclosure is to be permitted.".
This amendment concerns access to the register and the control of that access which has been a very contentious issue in other jurisdictions. Recently, we witnessed an exposé of the names of people on the register in one of the UK tabloids. There should be control over who releases information and to whom it is released. Information should be available to those who need to know but it should not be available generally or at the behest of a junior garda or any other member of the Garda. There should be some level of control. When information on someone on the register is being released either to an institution, an individual or the person who needs to know, assurance should be given that vigilantism will not result as a consequence of information being made available. The Minister should outline his views on how the information should be released, to whom and under what circumstances it should be released and the controls that should be in place before it is released. My amendment proposes tight controls over the information which will be available to those who need it on the basis of a decision made by an independent body. This is similar to what happens in relation to telephone tapping by the Garda, which is necessary in certain circumstances. This decision is made by way of a High Court order by a designated High Court judge.
We are trying, if possible, to limit contributions to three or four minutes so that the Minister can reply. If that is not acceptable, the committee can continue for longer or the issues can be debated further on Report Stage.
I would like to get the Minister's views before Report Stage because I have given a lot of thought to this issue.
I will try to answer the Deputy as quickly as I can so that he can consider the matter for Report Stage.
As the Deputy explained, the amendment proposes to provide a basis through the courts for deciding who will have access to the register. There are some technical points in the amendment about which I am not happy. For example, the word "register" does not appear in the text of the Bill. I oppose the amendment because it runs counter to the philosophy and policy underpinning Part 2 of the Bill. Access to the register is not covered under the Bill. Access cannot be adequately dealt with under the legislation but can more appropriately be dealt with administratively. I intend that the information in the register will be used by the Garda, in conjunction with the probation and welfare services, to assess risk. Where the Garda comes to the conclusion at any time that another person or persons should be informed of an offender's name, it will be because they are sure there is an immediate and serious risk to someone. It is the risk element that is important in its immediacy and the presence of the offender's name on the register would trigger giving rise to the risk assessment. The problem is that the amendment would bring the court into a situation where it has not already been. Applications to the court take time. Reports must be prepared and the court body may request reports from experts which can often conflict. It is not a system designed for immediate action. By immediate, I mean immediate, not tomorrow, the next day or next week.
Providing information from the register to the public carries huge risks, as we have seen recently in Britain. I envisage this provision being used very sparingly. While the Garda will develop its own means of risk assessment as to when, where and who public access should be made available, I imagine a first move will be to warn the offender about his or her behaviour and suggest a move to another area where children do not congregate, or else seek a sex offender order.
Good policing practices rather than court intervention is the most appropriate and efficient way to decide on access to information on the register. Therefore, I cannot accept the amendment.
I am unhappy with the loose way in which the information will be distributed. I would like a system of independent decision-making by someone once removed from those directly involved with the register in making a decision. I have great respect for the Garda Síochána, however the Minister and I know of gardaí who may be less than efficient in the application of their duty and who may release the information in a different way from that intended by the Minister. The information might be made available loosely for whatever reason, therefore, some controls should be put in place in this regard. In speaking about the permission of a designated High Court judge, while the Minister is a lawyer, I am not. I envisaged that a judge - not particularly the court - standing as an independent person, who has the authority, training and experience, would arbitrate and instead of looking for reports, which could take a long period, would, in a matter of hours from the time the information is requested, make a decision rather than have a protracted court case. We are aware that High Court judges are asked on occasions to sit at all hours of the night to make decisions on issues of law in certain circumstances. This is the type of arrangement I was considering. I am not a lawyer, but I do not want a long protracted court case to decide if the information should be released. I want some check on how the information is released.
Will the Deputy follow up the issue on Report Stage?
I will but perhaps the Minister will give a brief response to my question.
I will consider what the Deputy has said and I will discuss it further on Report Stage.
I understand that in other jurisdictions there are multi-agency community protection panels. In other words, they facilitate the flow of information to appropriate agencies. Perhaps this could be considered as a way of implementing this aspect so that communication systems are already in place.
I move amendment No. 52:
In page 23, to delete lines 29 to 38 and substitute the following:
"(2) The prosecutor shall before or as soon as practicable after the commencement of the proceedings inform the complainant of the complainant's rights under this section, and shall keep the complainant generally informed throughout the proceedings of the progress of the proceedings.".
This relates to the change in the Criminal Law (Rape) Act, 1981, whereby in certain circumstances the past sexual history of the victim is discussed in court. I welcome the introduction of this measure but my amendment seeks to put the onus on the prosecutor rather than on the accused. The complainant should be kept informed as to what is happening in the trial. The prosecutor, not the accused, should inform the complainant if the person's past sexual history is to be discussed.
I have spoken to representatives of rape crisis centres and they would like a specific person on the State's team to keep the complainant informed as to what is going on. I am seeking to have this provision included in the Bill. I am aware of the constitutional issue in relation to legal balance but I am seeking to ensure that one person on the State's team has a link to the complainant. Complainants say they are not told what is happening, that frequently they do not meet their barrister until a few minutes before the case and they do not know at any stage throughout the proceedings what is going on. This is one of the reasons so few victims of rape proceed to court cases. Complainants know how difficult proceedings are and that, in effect, they are there as a witness of the State. I am seeking to push out the boundaries in relation to this issue.
I intend to ensure there are discussions with the parliamentary counsel on this matter. In examining the amendment, questions arose as to the meaning of parts of the existing subsection (2). I would like also to discuss that aspect with the parliamentary counsel. If an amendment is necessary, I intend to introduce it on Report Stage. Much of what Deputy O'Sullivan described should be taking place at present. I take her point and will return to the issue, in a positive manner I hope, on Report Stage.
I thank Members, the Minister and the officials.
In accordance with Standing Order 79B I propose that the following message be sent to the Clerk of the Dáil: " The Select Committee on Justice, Equality, Defence and Women's Rights has completed its consideration of the Sex Offenders Bill, 2000 and has made amendment thereto."
Is the report agreed to?
Report agreed to.
Ordered to report to the Dáil accordingly.
