Amendment No. 3 was disposed of. Amendments Nos. 4 and 10 are cognate, while amendment No. 11 is related. Therefore, amendments Nos. 4, 10 and 11 will be discussed together.
Criminal Law (Human Trafficking) Bill 2007: Committee Stage (Resumed).
SECTION 3.
Was amendment No. 13 discussed the last day the select committee met?
It was discussed, but not disposed of.
My officials were a little unclear about its status. Does that mean we will return to it this morning?
It has already been discussed.
The amendment was discussed, but we will re-enter it on Report Stage.
Amendment No. 4 is in the name of Deputy Rabbitte who is not here.
With leave of theselect committee, I will move amendment No. 4 in Deputy Rabbitte's name.
Is the Minister agreeable to that request?
I am because it is the one other substantive issue at which we have to look in committee. I have no difficulty with Deputy Naughten moving Deputy Rabbitte's amendment as it will allow a full discussion on the issue.
I move amendment No. 4:
In page 5, subsection (2)(b), line 3, after “child,” to insert the following:
"and
(c) supplies or avails of the services of the child which the child has been trafficked to provide, knowing or having reasonable grounds to believe that the child was trafficked,”
Amendments Nos. 4 and 10 are being discussed with amendment No. 11 in my name. The purpose of amendment No. 11 is to try to make it illegal to be a beneficial recipient of services of someone who has been trafficked. Anyone availing of the services of a person who has been trafficked, where he or she is aware of this fact, should be liable to prosecution.
We discussed the weakness in the Bill in regard to the protection of victims. Another weakness is that while we are taking a very strong position in regard to individuals trafficking persons, the same cannot be said about those availing of the services referred to. If we can tackle the issue of demand, there will be no financial incentive for those who traffick people into the country. It is of fundamental importance that we deal with this issue. Taken with the previous amendment, this would ensure the Bill would deal with all the relevant issues. I am aware that Article 19 of the Council of Europe Convention on Action against Trafficking in Human Beings makes provision for offences relating to persons who use the services of the victims of trafficking. Such a provision would be a strong deterrent and act as a barrier to the proliferation of human trafficking. Will the Minister look sympathetically at my amendment and Deputy Rabbitte's amendments Nos. 4 and 10 which, while similar in thrust and in principle to my amendment, focus specifically on children? My amendment is broader in that it covers children and adults.
Amendments Nos. 4, 10 and 11 seek to criminalise in various circumstances the purchase of sex, namely, the demand for the services of prostitutes or trafficked persons. Deputy Rabbitte's first amendment seeks to amend the definition of sexual exploitation of a child and to criminalise the supply and availing of sex with a child who has been trafficked. The person who supplies the child will be a person in the trafficking chain who harbours or takes custody of the child into his or her charge or control. Where it is not possible to prosecute such person under the trafficking provision, provisions such as those relating to controlling or directing the activities of a prostitute or compelling or coercing a person to be a prostitute as provided for in the Criminal Law (Sexual Offences) Act 1993 could be used.
I will comment on availing of the sexual services of a child when I come to deal with Deputy Rabbitte's second amendment. On children specifically, any person who sexually abuses a child commits a serious offence that carries severe penalties. On the issue of sexual offences committed against children, Deputies will be aware that this legislation started out as the criminal law (trafficking in persons and sexual offences) Bill. I extracted the trafficking provisions to ensure their speedy enactment. The other provisions have not been forgotten. Work is progressing in the Department on the preparation of a criminal law (sexual offences) Bill which will include the remaining provisions of the 2006 Bill taking into account developments since they were originally prepared. That Bill will offer new protection to children against sexual abuse and exploitation.
The difference between Deputy Rabbitte's first and second amendments is that it is not necessarily an offence to have consensual sex with a trafficked person who is an adult. The problem with creating such an offence is that it would be impossible to enforce. It would never be possible to prove that a customer knew or had reasonable grounds to believe that the person was trafficked. A customer, from whom a trafficked person sought assistance, would be more likely to respond if he or she believed a customer was not liable to prosecution. Similarly, if a customer suspects that a person is trafficked he or she would be more likely to report this to the Garda or to help the victim in other ways if he or she believed a customer was not open to prosecution.
Deputy Naughten's amendment seeks to criminalise the purchase of sex. This is a major issue that deserves public debate if it is justifiable to deal with it in this or other legislation. There is no evidence that criminalising the purchase of sex reduces demand for it. It simply displaces it. Where it has been tried, the incidence of street prostitution has reduced and the unseen manifestation of prostitution such as prostitution on the Internet and on mobile phones has increased. Also, the demand crosses borders and takes to the seas in what are effectively floating brothels.
Irish law on prostitution has always been clear. It has not been an offence to be a prostitute or for two consenting adults to come to a private arrangement. It can be difficult, under this type of law, to establish the facts in a case where both parties are apparently consenting to commission of the acts involved. Such laws are fraught with difficulties of enforcement. As long as there is no exploitation, force or other factors that indicate a lack of consent, the law does not intervene. The offence in Irish law is to publicly solicit for the purpose of prostitution. This is a branch of the law wherein a distinction is drawn between what is morally acceptable and what is legally possible. A provision such as that proposed by Deputy Naughten would be unlikely to have an appreciable effect on the incidence of prostitution because of our existing offence of public soliciting. This offence does apply to prostitutes and those who seek their services.
I am prepared to consider this issue before Report Stage if the Opposition wishes to press the issue. In such offences there is a difficulty of proof where both parties consent to the act. Difficulties also arise from the nature of the case. The number of offences prosecuted is a tiny proportion of the total number committed. Any such offence can lead to difficulties in the administration of the criminal justice system. There may be a case for an offence of persistently seeking the services of persons engaged in prostitution, which I am prepared to consider before Report Stage.
This amendment is in Deputy Rabbitte's name. Does he wish to speak?
I apologise, Chairman. I have been waiting for Operation Freeflow in vain. A very minor accident detained me for more than 40 minutes. I apologise to the committee. Let Deputy Naughten proceed. He has been here for the entire proceedings.
I thank the Minister for his response to amendment No. 11. I accept his point. Nevertheless, the fact that a successful prosecution is difficult should not preclude us from creating a criminal offence, especially in the case of trafficked persons. I accept that such legislation in other countries has forced prostitution off the streets but it is my understanding that prostitution in Ireland already takes place off the street using the Internet or mobile phones. The amendment may not make a huge impact on the current mechanism of the provision of services but it is important that we lay down a marker with regard to trafficked persons.
I will withdraw the amendment and resubmit it on Report Stage. I may reword it in order that it focuses on the issue of trafficked persons. I also accept that people are more likely to come forward if they have not committed a criminal offence. If a person persistently and knowingly avails of the services of a trafficked person, it is important that such a person is prosecuted. Even a small number of prosecutions would bring the issue into the public domain and make people think twice before availing of such services.
I welcome the Minister's promise to revisit some of these issues. When I read amendment No. 4, I thought it was very positive and constructive. I also understand the debate regarding morality and legality. Nevertheless, amendments Nos. 4 and 11 deal with the exploitation of children. When young children are being trafficked and exploited, legislators must act in their interest, regardless of the debate on the distinction between legality and morality. Some people treat the issue of prostitution a little too lightly. The reality is that 95% of those young, disturbed people involved in prostitution come from a dysfunctional background and have major issues in their lives. They do not do it willingly. We have a duty to protect them.
When it comes to child prostitution and child trafficking, we must take responsibility for the child. I do not accept that we can do nothing about it. Amendment No. 4 attempts to deal with it and I welcome the Minister's efforts to revisit these issues and come up with sensible proposals to do something in the interests of the child.
How stands the amendment?
My amendment No. 4 is somewhat narrower than that of Deputy Naughten. I seek to criminalise the person who uses the trafficked person's services. If I understood the Minister, his objection is that it would be impossible to ascribe knowledge to the user, or to be able to establish that the user had a reasonable basis for believing or knowing that the person was trafficked. I wonder if that is not stating the case in terms that are too extreme. It may be difficult to have reasonable grounds to believe that the child was trafficked, but I do not accept that it would be impossible in all circumstances. The amendment seeks to add a new subsection, which would add to the overall section the offence of the user being criminalised in these circumstances. The organisations involved in the Bill are anxious to assert that the user ought to be criminalised. Maybe sometimes there is not sufficient consideration given to the mental element in that simple statement, but I find great difficulty with the proposition that it is impossible. In some circumstances, it can be established that there would be reasonable grounds to believe that the person knew.
Deputy Naughten's amendment raises a very important and wider question. I do not know whether the committee has the expertise to deal with it. In saying that he will come back to us, the Minister seems to believe that he has the expertise available to him. It is an important issue in the area of prostitution as we have known it. Amendment No. 4 is more restrictive and I ask the Minister to reconsider.
I will deal with the issues raised by both Deputies. Deputy Finian McGrath referred to children. The law is that a person who has sexual intercourse with someone aged under 17 years commits a serious offence. The Bill should be considered in that context and the question of consent cannot arise for the person who perpetrates such an act. The Bill deals with the phenomenon of trafficking and a battery of legislation is available to protect children. Under the programme for Government, the Government is committed to bringing forward any constitutional proposals necessary to underpin that protection. Further protection in this area will require a referendum if we want to extend the zones of strict and absolute liability.
Deputy Rabbitte referred to trafficking. While I said it would be difficult, I indicated that creating a specific offence of purchasing the services of a trafficked person, apart altogether from the difficulties of proof, might mean that the person who availed of the services and who became aware that the person was trafficked would be less likely to tell the Garda of the person's circumstances. Far from assisting a trafficked person, the existence of such an offence might deter the person who sought the services of the trafficked person from responding and informing the Garda or the authorities of the difficulties the person was in. Similarly, if customers suspected the person was trafficked, they would be less likely to report it to the Garda or help the victim in other ways if they knew they were leaving themselves open to prosecution. I took these factors into account in considering Deputy Rabbitte's amendment.
I agree with the Deputy it is a wider issue than this and I indicated to the committee that I would be prepared to examine the proposal that a person who engaged in the persistent seeking of such services could be open to prosecution.
I find that a fascinating proposition. The Minister has the advantage of having had occasion in the preparation of the Bill to reflect on this with his staff. However, the proposition that the users would be deterred from co-operating with the Garda or bringing the trafficking offence to its attention in the first instance if they exposed themselves to being charged with a criminal offence is intriguing. Is the Minister saying that the considered view in his Department is that knowledge of the original offence of trafficking coming to the attention of the prosecuting authority is dependent to at least some degree on the user bringing it to the attention of the Garda in the first instance?
No, that is far from the universal basis for such knowledge but it can be a basis for it.
It flies in the face of those who have worked with young trafficked people that the State would be dependent on the user of their services to establish the fact of the original trafficking. Those who work with persons in these circumstances take the view that the user of the services provided ought to be expressly criminalised. The hope that the user might be the source to bring the offence to notice is remote.
The Deputy knows that in all police investigations every possible source of information is explored by the Garda Síochána. That is always the practice in investigations. There can be a difference between intelligence and evidence. Receiving information on a particular matter can often be distinct from obtaining information that may be used as evidence in a prosecution. That distinction is well known in policing also.
I accept that, but what is the Minister's view on the principle of the point I am seeking to assert, namely, that the user of such services ought to be criminalised?
I pointed to a practical difficulty which makes it less likely that the users of such services will confide in the Garda as regards the plight of a victim. I also made it clear to the Deputy that were we to create such an offence, it would be very difficult to prove. One would have to prove that the user knew the person had been trafficked.
How stands the amendment?
I am not entirely persuaded, but I will have further consultations with some of the groups concerned before------
I am happy to revisit the question and have another look at it before Report Stage.
On that basis, I shall re-enter the amendment on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 5:
In page 5, subsection (5), lines 10 and 11, to delete "a fine, or imprisonment for life, or both" and substitute the following:
"imprisonment for life or a lesser term of imprisonment".
This has to do with the penalty section. I am suggesting in the amendment that there are two flaws in the section, as it stands. First, the provisions allow a fine for the trafficking of children. I certainly have received submissions indicating that this is inappropriate. The section then seems to provide for a mandatory life term for all such offences. As I read the Bill, it seems to imply imprisonment for life in the circumstances described. While imprisonment should obviously be the penalty, it should be left to the court to indicate whether this should be for life or a lesser term, as it determines. That would be more appropriate. The provision which allows a fine for an offence as heinous as the one we are discussing is inappropriate.
I support Deputy Rabbitte whose amendment would strengthen the wording of the legislation. Subsection (5) allows for a fine or imprisonment and that avenue should not be open to the courts.
There are two separate points in this amendment, namely, how one drafts a non-mandatory penalty of life imprisonment and the appropriateness of a fine for the offence of trafficking children. On the former question, I am informed by the Parliamentary Counsel that where a court has power to impose a term of imprisonment of less than life, it is the practice to state that imprisonment may be imposed for a term not exceeding a stated period. An example can be seen in section 13 of this Bill. However, when a statute gives power to the courts to impose a life sentence a different drafting technique is used as follows, "This does not mean that the sentence of life imprisonment is mandatory, it just means that a judge can impose a life sentence." That formula is used in this section.
On the possibility of a fine, the international instruments on trafficking impose an obligation to ensure bodies corporate can be charged with and convicted of trafficking offences. Therefore, if a body corporate, rather than its managers or employees, is convicted, a penalty of imprisonment could not be imposed. In those circumstances a fine, which could be substantial, would be the appropriate penalty. I agree with Deputy Rabbitte that when an individual is convicted it is unlikely that a fine would be the appropriate penalty, unless accompanied by a prison sentence. However, in the case of an individual who has profited from trafficking it could be appropriate that he or she pays a fine in addition to the sentence of imprisonment. That is the thinking behind the reference to a fine in the penalty section.
The Minister's argument about the drafting advice is persuasive. If that is the traditional way of giving expression to a prison sentence not exceeding a given number of years, I bow to tradition. As expressed in subsection (5) it seems to me the Bill implies imprisonment for life. I read that as being mandatory and if that were the case it would give rise to certain constitutional questions.
The Minister accepts the point that a fine would be inappropriate for people guilty of trafficking but has explained that there may be circumstances in which a body corporate rather than a person is guilty, and in such cases a fine may be appropriate. Is he suggesting it is clear from subsection (5), as worded, that a court would not interpret it as meaning the court would be free in certain circumstances to impose a fine on a citizen found guilty of trafficking? Can it be interpreted as meaning that it is open to the court to impose either a fine or imprisonment?
In theory it would be open to the court to impose only a fine. That is possible under the section as drafted. If Deputies are anxious to have the wording firmed up to indicate a fine should be imposed in more restricted cases, I can have that examined. Deputies should bear in mind that, except in the case of a body corporate, there is no good reason a person would not have a fine imposed in addition to a prison sentence where he or she has profited from this trade.
I accept that, but in that case the Bill should specify both a fine and imprisonment. If the Minister seeks to clarify that a company involved in this business cannot be imprisoned, the framing of the section ought to make that clear. If the Minister is in agreement with this side of the House that a fine is not appropriate for persons engaged in the trafficking of children, we can word the legislation in order that that is clear and insert a separate provision to provide for circumstances where a company is engaged in this business. If we are prepared to send a clear message that those involved in the trafficking of girls or young women for the purposes of exploitation face imprisonment, this should be stated in the legislation.
I accept that, save that the drafting will have to permit the imposition of a fine in addition to a sentence of imprisonment. That will have to be safeguarded in any draft also. As drafted, the section confers substantial powers on the courts which have to be trusted to make wise judgments in these matters. I have no difficulty with the course of action proposed by the Deputy and will come back to the House on that basis.
Amendment, by leave, withdrawn.
Question proposed: "That section 3 stand part of the Bill."
I seek clarification on subsection (2)(b) which provides that a person who purchases or makes an offer to purchase a child shall be guilty of an offence. I may be splitting hairs, but what would be the situation if someone were to rent or lease a child for a period of time rather than purchasing the child outright? Is that covered under this definition?
On the issue of protection, special provision will have to be put in place for child victims of trafficking as opposed to victims in general. I also ask the Minister to examine the policy in regard to unaccompanied children. It appears from media reports on what happens in other jurisdictions that unaccompanied children coming to a jurisdiction provide an avenue for child trafficking. I know this is not the Minister's direct responsibility. Perhaps that is part of the problem. However, 323 migrant children have gone missing from care. That is an appalling statistic and one that should not be tolerated here. I ask the Minister and his Cabinet colleague, the Minister for Health and Children, to examine this issue of migrant children because it is not something to which we can continue to turn a blind eye.
I am happy to report that there has been a substantial reduction in the number of unaccompanied minors arriving in the State this year. There is also evidence that many of these children reunite with or attach themselves to families already established here, even though there is no strict proof that they are members of these families.
On the general question of the meaning of "purchase", the Bill has been drafted having regard to the international instruments involved and carries the connotations from them. However, I will examine the point before Report Stage. The word "purchase" in our civil law refers to outright purchase of a fee simple in land or in the context of the sale of goods or chattels. In this context, a child is not land or a chattel. A child is a human being with a unique dignity of his or her own. For that reason, the word "purchase" is probably adequate. Nevertheless, I will have the question examined.
Will the Minister discuss the matter with the Minister of State with responsibility for children?
I am in constant discussion with the Deputy Brendan Smith, whose responsibility with regard to the care of these children is as a Minister of State at the Department of Health and Children, but I am not splitting hairs on that issue. This is an issue on which my Department and his office must work together.
Question put and agreed to.
SECTION 4.
I move amendment No. 6:
In page 6, line 14, after "act" to insert the following:
"that is unlawful or that is intended to be committed with a third person".
This matter was dealt during the previous day's debate. I withdraw the amendment pending its resubmission on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 7:
In page 6 line 34, to delete "employment."." and substitute the following:
"employment,
(e) any person who attempts to commit an action under paragraphs (a), (b), (c) or (d) and
(f) any person who believes that a person has committed an action under paragraphs (a), (b), (c), (d) or (e).”.”.
I wish to withdraw this amendment and resubmit it on Report Stage.
Amendment, by leave, withdrawn.
Section 4 agreed to.
SECTION 5.
Amendments Nos. 8 and 9 are related and may be discussed together.
I move amendment No. 8:
In page 6, subsection (1), line 36, after "person" to insert ", with or without their consent,".
This amendment brings us back to the issue of consent, which has been raised by several groups. It is important that the question of consent does not arise in a prosecution for trafficking of a person for the purpose of labour or sexual exploitation. The EU framework decision and the Council of Europe convention on trafficking in human beings dictate that legal consent cannot be given to trafficking for sexual or labour exploitation. In light of that, I ask the Minister to consider the amendment.
The nub of this matter is that the consent of a trafficked person cannot be a defence. The definition for an adult is somewhat narrower than would apply for a child. My amendment deals with trafficking for an unlawful purpose, removing an organ or sexual acts with a third party. The question of consent is at the nub of both amendments.
Deputies Naughten and Rabbitte seek to introduce the concept of consent expressly into the legislation. The offences of trafficking are given clear and consistent meanings in all three international trafficking instruments. For example, subparagraph (b) of Article 3 of the UN protocol states:
The consent of the victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) shall be irrelevant where any of the means set forth in that subparagraph have been used.
The means set forth in subparagraph (a) are reproduced in section 5(1) of the Bill. Article 4 of the Council of Europe convention and Article 1 of the EU framework decision are expressed in similar terms.
We are only concerned with adults for the purposes of these amendments and if none of the means in section 5(1) are used, such as coercion or deception, then it is not trafficking. Section 5(1) sets out a very substantial list of circumstances where the whole question of consent is irrelevant — coercion, threats, deceptions, abuse and payments, conferring rights, interests and privileges. It is a very extensive list. To say that a person could consent to be trafficked would leave us out of line with practice elsewhere. It would leave us in the dark as to the amount of true trafficking that takes place and would do no favours to those who are trafficked.
The amendment seemed to suggest that a person can consent to being trafficked. What the international instruments say is that where persons have been trafficked, they can consent to the subsequent exploitation but in such circumstances, that is still trafficking. For instance a person might be trafficked from eastern Europe to Ireland for the purpose of doing domestic work. She may have paid a substantial amount of money to the trafficker that must be paid back, so she is left with little money. The domestic work she is forced to endure is not as she was promised, but is in reality servitude. Because she may consent to do that domestic work, concluding that it was still better than life in her home country would not mean that the trafficking did not take place. There is a clear distinction between consenting to being trafficked and consenting to the subsequent exploitation. I will speak to the Parliamentary Counsel before Report Stage and see if the Bill deals with the position I have outlined on consent to being exploited. If it is not dealt with, I will bring forward a suitable amendment.
Deputy Rabbitte's amendment is somewhat wider. It seems to envisage that trafficking could take place for any unlawful purpose. If we were to accept this concept, it would require several amendments to the Bill that would broaden its scope in an unacceptable way. It is important for the purposes of international co-operation on extradition and the universal understanding of what constitutes trafficking to stay within the confines of the meaning given to trafficking in the international instruments. The draft EU Council conclusion on trafficking in human beings states unequivocally that member states prepare and implement comprehensive national action plans against trafficking in human beings, adopting as a common definition the one existing in the Council framework decision on combatting trafficking in human beings. We must work off the international instruments, which attempt to develop the idea of where consent does not exist through an indicative list. That is essentially the approach taken in the Bill.
I take the point that the Minister has made. The purpose behind my amendment is that we do not end up in a situation where the court's time is taken up on the issue of whether the person did or did not consent. The Minister has given a commitment to look at it before Report Stage. On that basis I am prepared to withdraw it now and resubmit it then.
I accept that the Minister is correct when he states that the import of my amendment would broaden the definition of trafficking. However, my main concern in the amendment is that consent of the trafficked person is not capable of being used as a defence. I understand what he said in response to Deputy Naughten and I will not move my amendment on that basis.
I will bring forward an amendment on Report Stage to clarify the section further. I have been convinced by Deputy Naughten, but I am not sure I can go quite as far as Deputy Rabbitte suggests, because of the international instruments.
Amendment, by leave, withdrawn.
Amendments Nos. 9 to 11, inclusive, not moved.
Section 5 agreed to.
Sections 6 to 9, inclusive, agreed to.
SECTION 10.
I move amendment No. 12:
In page 9, subsection (1), line 13, after "proceedings" to insert the following:
", verifiable bona fide representatives of the press,”.
This amendment is self-explanatory. I flagged this issue on Second Stage and I accept the Minister's comment when he replied that it could be difficult to clarify the bona fides of a member of the press entering Ireland from another jurisdiction and I hope the amendment addresses that by placing the onus on that person. The reason I tabled the amendment is that it is critically important if demand for the services of people who are trafficked is to be curbed and our citizens are to be discouraged from facilitating traffickers that as much coverage of the court case and verdict as possible is put in the public domain. Protection is provided in the legislation regarding disclosure of identity and judges laying down additional stipulations. I fully agree they should be in place. However, I would like to ensure the nuts and bolts of proceedings in such court cases, as far as is possible, enter the public domain so that people are aware of what is happening and become more conscious of it. That is only way they will come forward and report incidents of trafficking.
Media representatives are allowed into the hearings of rape cases with protection in place regarding identity and so forth. A similar provision with the onus on the member of the press to verify his or her documentation rather than the court should be included and that would get around the issue raised by the Minister while, at the same time, ensuring as much information as is possible and sensible gets into the public domain to curb this practice.
The purpose of the amendment, as the Deputy outlined, is to give verifiable bona fide representatives of the press a right to attend court proceedings against persons accused of trafficking offences. As the Deputy hinted, the section is based on section 6 of the Criminal Law (Rape) Act 1981, as substituted by section 11 of the 1990 Act relating to that subject. The main difference between the provision in this Bill and that proposed in the amendment is that in a rape trial bona fide representatives of the press are present during the court proceedings along with officers of the court, persons directly concerned in the proceeding and such other persons, if any, as the judge in his or her discretion permits to remain. Section 10 provides that officers of the court, persons directly concerned in the proceedings and such other persons, if any, as the judge may determine may be present. In other words, under this legislation, the representatives of the press do not have an automatic right to be present, unlike at rape trials.
The reason the section is worded like that is that in Ireland, it is easy for the court to determine who is a bona fide representative of the press whose only interest is being present to report the case. That is relatively easy in a rape trial. However, alleged victims of trafficking and their families and relatives may be under great threat in their country of origin from the traffickers and their associates. They would stop at nothing to prevent an alleged victim giving evidence, or, where she gave evidence, to harm her family, both as revenge and as a warning to others. It may be difficult to verify who is a bona fide representative of the press who comes to report the case from the alleged victim's home country. Knowing that such persons might be present might frighten the alleged victim from giving evidence. All this section does is prevent the representatives of the press from having an automatic right to be present at the proceedings. The judge will still have the right to allow any press representatives to be present, whom he or she is satisfied, poses no threat to the alleged victim. In those circumstances the section draws the right balance.
Again, we are splitting hairs. We have the same objective and the only difference is how provision should be made for it. I am trying to make provision for it in the legislation. However, if the Minister firmly believes this will not form a barrier to genuine reporting from responsible media, then I am prepared to withdraw the amendment.
I am grateful to Deputy Naughten for that. We do not have a definition of the press. The press is free in this country and that is where some of our difficulties stem from, not as a Government I hasten to add. I am referring to our difficulty on the section.
I am glad the Minister clarified that.
Amendment, by leave, withdrawn.
Section 10 agreed to.
Section 11 agreed to.
NEW SECTIONS.
I move amendment No. 13:
In page 10, before section 12, to insert the following new section:
"12.—(1) Subject to the subsequent provisions of this section, a person who is an alleged victim of an offence under section 3 or 5, or section 3 (other than subsections (2A) and (2B) of the Act of 1998), shall be given leave to remain in the State by the immigration officer concerned.
(2) Subject to the subsequent provisions of this section, a person to whom leave to remain in the State is given under subsection (1) shall be entitled to remain in the State for a period of 6 months which may be renewed.
(3) The Minister shall give or cause to be given to a person referred to in subsection (2) a temporary residence certificate stating the name and containing a photograph of the person concerned, stating that, without prejudice to any other permission or leave granted to the person concerned to remain in the State, the person referred to in the temporary residence certificate shall not be removed from the State before the 6 month period has elapsed.
(4) The person referred to in subsection (2) shall not—
(a) leave or attempt to leave the State without the consent of the Minister, or
(b) seek or enter employment or carry on any business, trade or profession during the period in question.
(5) An immigration officer may, by notice in writing, require the person referred to in subsection (2)—
(a) to reside or remain in particular districts or places in the State, or
(b) to report at specified intervals to an immigration officer or member of the Garda Síochána specified in the notice,
and the person concerned shall comply with the requirement.
(6) A person who contravenes subsection (4) or (5) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €500 or to imprisonment for a term not exceeding 1 month or to both.
(7) Where an immigration officer or a member of the Garda Síochána, with reasonable cause, suspects that the person referred to in subsection (2)—
(a) poses a threat to national security or public order in the State,
(b) has committed a serious non-political crime outside the State,
(c) has not made reasonable efforts to establish his or her true identity,
(d) intends to leave the State and enter another state without lawful authority,
or
(e) without reasonable cause has destroyed his or her identity or travel documents or is in possession of forged identity documents,
he or she may detain the person in a prescribed place (referred to in the Refugee Act 1996 as "a place of detention").
(8) The Minister shall make regulations providing for the treatment of persons detained pursuant to this section.
(9) (a) Subsection (7) shall not apply to a person who is under the age of 18 years,
(b) if and for so long as the immigration officer or, as the case may be, the member of the Garda Síochána concerned has reasonable grounds for believing that the person is not under the age of 18 years, the provisions of subsection (7) shall apply as if he or she had attained the age of 18 years, and
(c) where an unmarried child under the age of 18 years is in the custody of any person (whether a parent or a person acting in loco parentis or any other person) and such person is detained pursuant to the provisions of this section, the immigration officer or the member of the Garda Síochána concerned shall, without delay, notify the health board for the area in which the person is being detained of the detention and of the circumstances thereof.”.
I agree to withdraw this amendment on the basis that it will be reintroduced.
Amendment, by leave, withdrawn.
Amendment No. 14 not moved.
Amendments Nos. 15 and 16 are related and will be discussed together, by agreement.
I move amendment No. 15:
In page 10, before section 12, to insert the following new section:
"12.—A person who is a victim of an offence under section 3 or 5, or section 3 (other than subsections (2A) and (2B) of the Act of 1998), shall not be liable to prosecution under the Aliens Act 1935 (as amended) or the Immigration Act 2004.”.
The amendment relates to the fact that we do not want to replicate a situation with regard to an individual in Sligo who was convicted of trafficking, transported to Mountjoy Prison and imprisoned there. Such individuals should not be liable to prosecution under the Aliens Act or the Immigration Act. The amendment is self-explanatory and I await the Minister's response to it.
An official amendment is tabled, which I will move, which simply corrects the Roman numbering and the numerical sequence of the section. It is a purely technical amendment.
As regards Deputy Naughten's amendment and the second part of the amendment from Deputy Rabbitte, members of the committee will be aware that the Director of Public Prosecutions is independent in the performance of his duties. He and he alone decides whether to prosecute in any case. In general, as a matter of statute law in Ireland, if one creates an offence, it is a matter for the DPP to decide whether to prosecute. In arriving at a decision the DPP can exercise his discretion. I cannot accept these amendments as they would constitute an interference with the independence of the DPP.
On the first part of Deputy Rabbitte's amendment, I consider such a sweeping provision unwise in that it declares as inadmissible any evidence obtained against a victim in an investigation under this legislation. While it might technically be possible to make such a provision, it would require a thorough examination to identify any implications for the well-established rules which comprise the principles for the admission of evidence that are operated by the courts. Such an examination is better left for any review of the laws covering criminal evidence. An amendment such as this might have the effect of tying the State's hands in the context of not knowing what evidence might be uncovered that could, if admissible, lead to bigger cogs in a trafficking chain. Therefore, I recommend the technical amendment in my name but cannot accept the amendments tabled by Deputies Naughten and Rabbitte.
I disagree with the Minister because victims of trafficking should not be jailed, as happened in the Sligo incident. That is why I tabled this amendment. It should also include the Criminal Law (Sexual Offences) Act 1993. In Sligo there was an appalling situation in which a victim who was trafficked into this country for sexual exploitation was imprisoned. By dealing with the traffickers but ignoring the victims, we are dealing with only part of the issue. The Minister proposes to address part of this in the immigration Bill and we will have some sort of victims' charter, but this Bill does not deal with victims. That is why I tabled this amendment. I ask the Minister to re-examine it in the context of what has already happened to some victims in this country.
I cannot accept the amendment. The DPP has indicated that office must be independent in the enforcement of the law, and the drafting of this amendment would contravene that principle. The Deputy can table an amendment on Report Stage, where the issue can be addressed. If the Deputy wishes to change our immigration law to provide a blanket exemption for a particular category of persons, he can table an amendment in that form and it can be considered. However, as outlined in a debate on this issue on a previous amendment, the best place to discuss immigration law is in the context of immigration law, and that remains my strong view. I am prepared to return to the subject of whether, as a minimum, an administrative arrangement can be put in place to set out the State's position on how victims can be treated in the interim period between the enactment of this legislation and the enactment of the immigration provisions.
Can the Minister assure me that we will never again have a situation where a victim who comes to the attention of the Garda Síochána is imprisoned?
I am not familiar with the circumstances of the Sligo incident. If the Deputy wishes to table a question on that I will deal with it. I am not briefed to comment on that case.
Can the Minister be briefed for Report Stage? We do not want victims jailed rather than those who trafficked them into the country. That is what we are trying to do here. While I accept the Minister's point, some type of provision must be put in place to ensure it does not happen again.
It is undesirable in principle that any person who is a victim can be jailed. I can examine the matter, but we must maintain the integrity of our frontier control system. That is an important issue. That is why I do not believe these matters should be addressed in this legislation.
I seek to address the issue in my amendment to amendment No. 16. I will not move that until amendment No. 16 is accepted. Is that the correct procedure?
It will be discussed at this stage and the Deputy may move it formally subsequently.
I propose to move it in the context of the current debate. It seeks to make a stab at divining the kind of subsection about which the Minister speaks in the sense that it amends the Criminal Evidence Act to provide that evidence obtained under an investigation under the main Act will not be admissible against any victim of an offence under the Act. The Minister's objection to that subsection is that it could mean that evidence against bigger cogs in a bigger chain might be frustrated.
I submit that my amendment is very restrictively drafted. The first part makes plain that evidence obtained will not be admissible against a victim of an offence under this Act, and under this Act only. It goes on to state that such a victim shall not be prosecuted for entry. I am not seeking to give the person immunity in respect of other offences that might be committed by the person concerned but only in terms of entry into the jurisdiction or of presence in the jurisdiction for the purposes of carrying out the forced labour or the sexual acts referred to in the general Bill. My amendment is very tightly drafted and might address the situation about which Deputy Naughten is concerned.
It seems extraordinary to the lay person that having proceeded to address the trafficking issue and having introduced legislation to deal with it that enables us to go on to ratify international instruments and so on, a victim found in the circumstances described by Deputy Naughten could end up in Mountjoy Prison. There may be detailed legal argument from the Minister as to why that should happen, but for the person in the street it is very difficult to understand that the victim is the person who ends up in Mountjoy Prison. I do not seek to do any more in my amendment than to make evidence gathered in that investigation inadmissible against the victim of an offence under this Act and to provide that it cannot be used in prosecuting the person for being in the jurisdiction. It would be a different issue if the person committed a burglary or robbery.
Deputy Rabbitte's amendment is rather remarkable because it requires that a court should deem that evidence obtained in the course of an investigation shall not be admissible against any victim of an offence under that Act. That suggests that the victim would be prosecuted under the human trafficking legislation. It is incomprehensible that a victim could end up being prosecuted under this Act. What conceivable offence could the victim be charged with? In the highly unlikely and almost impossible scenario where a victim is charged under this offence, evidence obtained in the investigation cannot be admissible against the victim. It seems a remarkable proposition. I find it difficult to understand what is at the root of it.
The amendment goes on to provide that such a victim shall not be prosecuted for entry into or presence in the State — that is a much broader exemption applying to the immigration code — or for carrying out the labour or sexual acts insofar as such entry, presence or carrying out labour or sexual acts were a consequence of the trafficking of that person. I am willing to look for a more detailed explanation of these matters before the debate on Report Stage if the Deputy tables amendments.
The Deputy should also look at the question of admissibility. It is difficult to address an issue of admissibility of evidence in isolation in this way. There are general rules relating to the admissibility of evidence in courts. I would be far more comfortable dealing with the principle of this amendment without having a question of admissibility brought into it. In general, those matters are regulated by general statutory provisions governing criminal or civil evidence.
The remainder of the section seeks, as Deputy Rabbitte accepts, to do much of what Deputy Naughten seeks to do in creating some form of immunity for a victim from being prosecuted for any offences. That is a matter for the Director of Public Prosecutions, who has generally exercised his discretion in a wise way. It is not normal practice to create an immunity for any particular person. The question of immunity rests with the DPP.
In the context of immigration law, we will have to work out a specific statutory provision that protects the victim. I have accepted that at all stages. It can only be balanced and calibrated in a legislative manner in that context. Pending that, a code of practice will be drawn up which will operate from the enactment of this legislation in relation to how the current immigration procedures will be administered in the context of victims.
The Minister says the amendment is incomprehensible to him. If that is the case there may be a necessity to tease it out. He complains about a broadening of the terms in respect of the part of the amendment which says that such a victim shall not be prosecuted for entry into or presence in the State. Far from being incomprehensible, that is logical. If a person is forcibly trafficked into the State for the purposes of exploitation why is it not entirely logical that the victim cannot be prosecuted for entering or being in the State? The person entered the State against his or her own will and was trafficked into the jurisdiction. The amendment seeks to give expression in law to the principle that such a person cannot be arraigned before the courts for being here.
The first part of the amendment cannot be said to be incomprehensible. Someone as knowledgeable of the law as the Minister—
My incomprehension relates to the inadmissibility provision and not to the subsequent provision. The Deputy is trying to do two things in one section. One relates to the admissibility of evidence and the other to immunity. I did not find the immunity provision incomprehensible. I argued against it but I did not find it incomprehensible.
With regard to the admissibility provision, it must seem odd to people working with victims of trafficking that an investigation of an offence of trafficking could throw up information that could be used against the victim.
Under this Bill?
Yes.
Can one traffic oneself?
That is a very good question. If a person commits a murder, he or she can be prosecuted for the murder, but he or she cannot be prosecuted for an offence under this Act. It is only within the terms of this Act.
I find incomprehensible the Deputy's expression "of an offence under this Act". Is he saying the evidence is inadmissible in all subsequent court proceedings? Or is it simply in proceedings under this Act? If it is the latter, it is very difficult to understand when a victim could ever be prosecuted under this Act. However, if it is in all subsequent proceedings and the victim committed a homicide in the course of the trafficking, then the evidence obtained would be inadmissible against the perpetrator of a homicide. On a narrower interpretation of Deputy Rabbitte's amendment, it simply applies to admissibility in any proceedings in respect—
My understanding is that it relates only to offences under this Act, and not to a homicide.
How could the victim ever be prosecuted under this Act? That is what I find incomprehensible.
How did the person in Sligo end up in Mountjoy?
That is a different issue. It was not in connection with the admissibility of evidence.
The Minister has indicated that he might revisit this on Report Stage.
No he has not. He has asked us to revisit it on Report Stage.
I do not accept the amendment. I have made that very clear and I will restate my reasons. The general rule is that all relevant evidence is admissible in any court proceeding. There are well established qualifications to that. This amendment seeks to introduce another qualification to the general law relating to the reception of evidence in our courts. On one wider interpretation of the admissibility rule, proposed by Deputy Rabbitte, any evidence obtained in the course of the trafficking investigation would be inadmissible in all subsequent court proceedings, even in circumstances where the victim had committed a separate offence, irrespective of the gravity of that offence. I certainly cannot accept that as an amendment to this Bill.
If Deputy Rabbitte has advanced the narrower interpretation that it is only inadmissible in proceedings for offences under this Act, then I find it incomprehensible because it is difficult to see how a victim can ever be prosecuted under the provisions of this Act. This Act does not create offences for the victims of trafficking. It deals with those who engage in this trade.
The wider question raised by both Deputy Naughten and Deputy Rabbitte is the question of immunity. I made it quite clear that immunity from criminal legislation is a matter for the Director of Public Prosecutions. It is not desirable to depart from a consistent statutory practice where the DPP is the person invested with the responsibility to decide whether a person, in the context of the commission of a particular offence, should obtain immunity from it. From a legislative point of view, I see grave danger in providing for explicit immunity in legislation. It could be characterised as an inducement to give evidence and thereby undermine the case for a prosecution.
Are the amendments being pressed?
I do not think it would act as an inducement. I was very careful on Second Stage to point out that it is critically important that any provisions put in place for victims are not seen as an inducement that would threaten a conviction. The reality is that anyone who comes forward as a victim under this legislation will be admitting to having committed a criminal offence under the immigration Acts. I do not see how a victim who has been forcibly brought into this jurisdiction has committed a criminal act. However, that is the way the law stands. Such persons should not be detained in our prisons for breaching the immigration laws if they were forcibly brought into the country in the first place. The Minister has said he will draw up a code of practice in relation to this matter. As we have not yet seen it, we do not know what it contains. I hope this legislation will be in place before the end of January, having passed through both Houses of the Oireachtas. Therefore, why have we not seen the code yet? We are being asked to rely on a code that has yet to be drawn up and to deal with the legislation now. The persons concerned should not be liable for prosecution for having entered or remained in the State illegally when they were forcibly brought and probably detained here.
A person trafficked does not necessarily commit an offence in entering or being present in the State. That is an important point in this discussion. Often the traffickers arrange for a visa for a person to enter the State. There is no question of a person committing an offence in that context. It is rare that a Minister for Justice, Equality and Law Reform can cite the Irish Human Rights Commission in support of his or her side of the argument. I refer to what it advised us concerning this precise issue which Deputy Naughten has raised throughout the debate. I wish to comment on its observations as regards the general scheme of the Criminal Law (Trafficking in Persons and Sexual Offences) Bill 2006, from which the provisions of this Bill have been extracted. The commission stated:
The provision of explicit rights for victims in a prosecutorial statute may potentially be characterised as an inducement to give evidence, thus possibly undermining the case for the prosecution. Where certain rights and privileges are extended to victims, conditional on co-operation with a police investigation and/or prosecution, a plausible defence may be mounted to the effect that the victim has been incentivised to give evidence. This may, in turn, diminish the impact of such evidence.
I know Deputy Naughten expressed a different opinion, but those are the observations of the Irish Human Rights Commission which I have refrained from quoting in this debate because its observations are not always supportive of what the Minister for Justice, Equality and Reform proposes, as is the nature of the case, although it is a body under the aegis of my Department. I welcome the fact that it expresses a view on all matters.
This is not an academic or theoretical issue. In the Gilligan case the Supreme Court considered whether evidence given by persons in the analogous position of being in a witness protection programme could be admitted in court. While the court ruled that such evidence was admissible, a note of caution was entered as regards evidence given by such persons. In the United States victims of trafficking can avail of special visas which allow temporary residence while co-operating with police investigations. There have been reports of perpetrators trying to claim the defence of unlawful or improper incentive arising from the granting of visas and there has been a number acquittals on those grounds. For that reason, this statute is not the appropriate place to raise the issue.
I want to suggest a way to get around the issue. I know the Minister is to look at amendments Nos. 3 and 11 again before Report Stage. Can he give a commitment that the code of practice to be drawn up by the time the legislation is enacted will be presented to the committee for review in order that these issues may be teased out?
We shall have an opportunity to discuss and revisit the issue on Report Stage as regards whether the Bill should be recommitted. If the committee wishes to discuss any matter with my Department it can consider doing so in the course of its operations.
I will withdraw the amendment but will introduce a similar one on Report Stage.
Amendment, by leave, withdrawn.
SECTION 12.
I move amendment No. 16:
In page 10, to delete lines 3 to 5 and substitute the following:
"12.—The Criminal Evidence Act 1992 is amended—
(a) in the definition of “sexual offence” (inserted by section 16 of the Criminal Justice (Miscellaneous Provisions) Act 1997) in section 2, by—
(i) the deletion of paragraph (iv) (inserted by section 7(2) of the Criminal Law (Sexual Offences) Act 2006), and
(ii) the substitution of the following paragraph for paragraph (e):
"(e) the Criminal Law (Sexual Offences) Act 2006;”,
and
(b) by the substitution of the following section for section 12 (amended by section 10 of the Act of 1998):”.
I move amendment No. 1 to amendment No. 16:
Before paragraph (a), to insert the following:
"(a) by the insertion of the following section after section 3:
3A.—Evidence obtained in the course of an investigation under the Criminal Law (Human Trafficking) Act 2007 is not admissible against any victim of an offence under that Act, and such a victim shall not be prosecuted for entry into or presence in the State or for carrying out the labour or sexual acts, insofar as such entry, presence or carrying out labour or sexual acts were a consequence of the trafficking of that person.”,”.
I will withdraw the amendment to the amendment but will return to it on Report Stage.
Amendment to amendment withdrawn.
Amendment agreed to.
Question proposed: "That section 12, as amended, stand part of the Bill."
I know I cannot speak specifically to my amendment No. 14 but I am disappointed. I accept the ruling of the Chair but he walks a very fine line in regard to the provisions of the Criminal Justice (Legal Aid) Act 1962. Can the Minister provide clarity on the ability of an alleged victim under this Act to avail of the provisions of free legal aid?
In what context?
I have ruled the amendment out of order but Deputy Naughten wishes to query this point.
He is speaking to the section, which is a procedural section. In what context would the victim require legal aid? The victim is not accused of anything in these proceedings and is not a party to the proceedings. The parties who are legally represented in a criminal trial are the people of Ireland, at the suit of the Director of Public Prosecutions, and the offender.
In some cases these people would have committed an offence under the immigration Acts. In addition, they are coming to an unknown jurisdiction and encounter a legal system which is completely unknown to them. Surely they should have access to legal advice if they are to give evidence which is crucial to a successful prosecution.
They are not party to the proceedings and that is the core issue. Deputy Naughten referred to other possible offences but they are not charged with those offences in a trafficking trial.
Question put and agreed to.
SECTION 13.
Question proposed: "That section 13 stand part of the Bill."
This issue was raised by a number of groups, who suggested the provisions of the Proceeds of Crime Act 1996 should include human trafficking offences. Compensation is referred to in many international conventions and people have made a substantial amount of money from trafficking. That money should be available to the State to provide a compensation fund for victims. It many cases it would allow victims to return to their home country and start a new life.
As I understand it, the Proceeds of Crime Act 1996 does apply to the offences created under this legislation. The Act applies to any indictable offence of a certain character and these offences will qualify.
What is the situation regarding compensation for victims?
The money seized goes into the Central Fund. Compensation would be a civil matter, separate from the criminal proceedings. In criminal proceedings a judge informally arranges, as part of the sentencing stage, for compensation to be paid by the offender to the victim. That, however, is an informal arrangement that takes place in the course of imposition of sentence, while the entitlement to compensation is a civil matter.
The same argument about the fund has been made in the context of drugs legislation. For example, it is argued that money seized from drug barons might be put to use in local communities ravaged by their depredations. The State has consistently resisted that, however, using the argument that the money goes to the Exchequer and a separate policy provision is made for the transfer of resources to affected areas.
The State, in the personification of the Minister for Finance, has always had a very firm view on this matter.
Question put and agreed to.
Section 14 agreed to.
Title agreed to.
Bill reported with amendment.