I move amendment No. 2:
In page 3, before section 2, to insert the following new section:
"2.—(1) Where a person, being a citizen of the State or being ordinarily resident in the State, does an act, in a place other than the State (‘the place'), against or involving a child which—
(a) constitutes an offence under the law of the place, and
(b) if done within the State, would constitute an offence under, or referred to in, an enactment specified in the Schedule to this Act,
he or she shall be guilty of the second-mentioned offence.
(2) Where a person, being a citizen of the State or being ordinarily resident in the State, attempts to commit an offence which is an offence by virtue of subsection (1) of this section (‘the principal offence'), he or she shall be guilty of an offence and shall be liable on conviction on indictment to a penalty not greater than the penalty to which he or she would have been liable if he or she had been convicted of the principal offence.
(3) Where a person aids, abets, counsels or procures, in the State, the commission of an offence, which is an offence by virtue of subsection (1) of this section, he or she shall be guilty of that offence.
(4) Where a person, being a citizen of the State or being ordinarily resident in the State, aids, abets, counsels or procures, outside the State, the commission of an offence, which is an offence by virtue of subsection (1) of this section, he or she shall be guilty of that offence.
(5) Where a person conspires with, or incites, inside the State, another person to commit an offence, which is an offence by virtue of subsection (1) of this section (‘the principal offence'), he or she shall be guilty of an offence and shall be liable on conviction on indictment to a penalty not exceeding the penalty to which he or she would be liable if he or she were convicted of the principal offence.
(6) Where a person, being a citizen of the State or being ordinarily resident in the State, conspires with, or incites, outside the State, another person to commit an offence, which is an offence by virtue of subsection (1) of this section ('the principal offence'), he or she shall be guilty of an offence and shall be liable on conviction on indictment to a penalty not exceeding the penalty to which he or she would be liable if he or she were convicted of the principal offence.
(7) For the purposes of proceedings for an offence to which this section relates, a person shall be deemed to be ordinarily resident in the State if he or she has had his or her principal residence within the State for the period of 12 months immediately preceding the alleged offence.".
This amendment inserts a new section 2 in the Bill. The key provision is subsection (1) which extends our jurisdiction to enable prosecutions to be taken against citizens or ordinary residents who commit sexual offences abroad against children. Ancillary offences such as aiding and abetting, attempting, conspiring or inciting are also covered. The corresponding provisions of the Bill are sections 2 and 3. The amendment does not alter the thinking behind the present sections 2 and 3. It does, however, make a significant change to the way in which the wrongful act committed abroad is made an offence here. Section 3(1) of the Bill as it stands creates a new distinct offence of doing an act abroad which, if done here, would constitute an offence specified in the schedule. This approach has the disadvantage of omitting to take into account the whole body of related criminal law provisions which apply to sexual offences committed here. As the Minister for Justice pointed out during Second Stage, one such omission is the special protections afforded to complainants under the Criminal Law (Rape) Act, 1981 and the Criminal Law (Rape) (Amendment) Act, 1990. Deputies will be familiar with the requirement under those Acts that the identity of a complainant should not be disclosed save in exceptional circumstances. Another omission which is a cause for concern relates to powers of arrest. The Bill makes no provision for powers of arrest despite the fact that, if one of the offences with which it is principally concerned was committed here, a suspect could be arrested without a warrant by a member of the Garda. I am sure none of us would wish to preclude such matters from the scope of this Bill, but its present wording does just that. Subsection (1) of the amendment addresses these omissions by proposing the extension of our criminal jurisdiction instead of creating a brand new offence. In consequence, all related criminal law provisions will automatically apply.
Subsections (2) to (6) deal with attempts, aiding, abetting, counselling or procuring and conspiracy or incitement. They are in line with the principles of the Bill and the changes proposed are no more than drafting ones.
Subsection (7) defines a person who is ordinarily resident in the State as someone who has had his or her principal residence here for 12 months immediately before the commission of the offence. Although along similar lines to the Bill's section 2(2), it contains a number of drafting changes.