This session involves a discussion with the Government-appointed special rapporteurs on child protection, Professor Finbarr McAuley and Mr. Geoffrey Shannon. Members will join me in offering our guests our apologies for the delay in hearing their presentation.
Child Law Issues: Presentation.
Were the Tánaiste and Minister of State called away?
The Tánaiste certainly was.
Is there an emergency meeting of the Fianna Fáil parliamentary party?
It was Winston Churchill who once said that no one could predict events in politics. This is one such event.
On behalf of the joint committee, I apologise to our guests. Professor McAuley is the Jean Monnet professor of European criminal justice at University College Dublin and editor of the Irish Jurist. He is a graduate of University College Dublin and the University of Edinburgh where he was a postgraduate scholar from 1968 to 1971. He has published extensively in the fields of domestic, comparative and international criminal law and was awarded a doctorate by the National University of Ireland for published work. He has been a visiting professor at the universities of Durban, Rome and Copenhagen and his most recent book, Criminal Liability, co-authored with Professor Paul McCutcheon, was published by Round Hall-Sweet and Maxwell Press in June 2000. He is also a member of the Law Reform Commission and chairman of the Criminal Law Codification Advisory Committee.
Mr. Geoffrey Shannon is a solicitor and senior lecturer in child law at the Law Society of Ireland. He is the author of the leading book on child law in this country, Child Law, and actively involved in judicial training on children’s rights throughout the European Union. He is editor of the Irish Journal of Family Law and has written extensively on child law issues in works such as Children and the Law in 2001 and Giving Children a Voice. He was appointed by the Department of Health and Children as an independent legal expert to facilitate a wide-ranging consultation process on future developments in adoption legislation. He has also served as Ireland’s expert representative on the European Union’s Commission on European Family Law and is deputy director of education at the Law Society of Ireland.
We all agree that two experts in the field of child law will present to the committee. I will ask Professor McAuley and Mr. Shannon in turn to make brief presentations, after which we will I hope have a constructive engagement.
Professor Finbarr McAuley
I thank the Chairman and the joint committee for the kind invitation to address them. As the Chairman was kind enough to point out, both Mr. Shannon and I are rapporteurs appointed by the Government charged with the task of making a report to the Oireachtas. It would not be wise, however, to treat these remarks as an interim report. While we are anxious and privileged to assist the committee, what I will say today may not be included in our report. As one considers and researches a report, one's position may shift as one moves closer to the complexity of views expressed.
I cannot approach the matter of sexual offences without considering it as a large across-the-board issue. We are discussing the child law aspect, but the issue of sexual offences is a larger canvas. This fact was forcefully borne in on me when I was chairman of the Criminal Law Codification Advisory Committee in 2004 when we examined the prospect of codifying the criminal law. I remember investigating the state of the law on sexual offences and, without too much investigation, my fellow committee members and I discovered that there were no fewer than 12 substantial Acts affecting the issue in this jurisdiction — 13 following the 2006 Act. Having examined the matter in the context of codification, I have no doubt that one of the measures needed is the consolidation of the legislation in question into a single Act, if only because in a democracy the issue of access to the law is fundamental, as the committee will appreciate. I do not need to remind legislators of this important fact. There is a difficulty when the law is scattered over many diverse Acts, many of which were passed in the preceding century using legal language impenetrable to the modern eye.
In our first report, published in 2004, we strongly urged that the body of law be consolidated. Accordingly, members will appreciate that when one consolidates, one may decide that it is not enough to consolidate in the technical sense of bringing several diverse enacted laws into one statute. One may find that there is a need for law reform, as I am sure would be the case in connection with sexual offences. For one reason or another, the law is unsatisfactory, arguably including the 2006 Act. I am unsure whether the Tánaiste will be present, but not even he would say the 2006 Act is perfect. We all know the circumstances in which it was drafted and a second examination might be needed.
I hope this is not an unduly depressing message, but the Legislature needs to give serious consideration to producing a mini-code to cover the entire area of sexual offences, including sexual offence bearing on the exploitation of children. I passionately believe that this needs to be thought about systematically as part of the codification of sexual offences law in general.
Let us consider the issue of mistake as to age or consent. Those things are not just confined, they are important in connection with offences against children. Generally, the issue of mistake is also important in the law on rape. Many of the problems were discussed by speakers. The issue of whether the test of mistake should be subjective or objective crops up in the context of offences against children. It also crops up in the context of offences against adults. I am not suggesting that a uniform rule on mistake is needed. However, the Legislature will need to consider, in a general way, how it calibrates the rules of mistake in the different contexts.
The committee has been given a job to do and is obliged, as I understand it, to produce law bearing on this issue. If I had the power to implement it, my preferred option would be to send this to the Law Reform Commission. I do not say that because we do not have enough work to do; we have plenty. As a result, however, of the complexities of the issues involved, it probably needs the kind of systematic review that a law reform body can give. Only then can the extent of the law reform required be decided, as opposed to how much can be simply consolidated. I beg members' pardon if that sounds too depressing. While I feel the ideal way of dealing with this would be to give it to the Law Reform Commission, the committee does not have the luxury of being able to do that. I make the point to underline the fact that the problems are considerable and will possibly require a level of comparative analysis and research which may not be possible to undertake in light of the timeframe that constrains the committee.
I should congratulate the committee's legal advisers. I found the summary document produced by Mr. Murphy and Mr. Guerin of great assistance. It bears out the point I was making. Members need only consider the complexity of the submissions received, the range of topics they include and the important issues that point out gaps in the law. I know Deputy Howlin was strong on this at the time of the CC case and its aftermath. He made good points about the gross indecency deficit. The committee has received a suggestion in respect of a new offence of child abuse. I concur with that but it creates difficulties. The need for a new terminology goes back to the point I made about the diverse origins of this legislation.
Statutory rape is a problematic descriptor. I am somewhat old-fashioned and do not see anything wrong with the term "defilement". One wants to call a spade a spade and one does not want to sanitise crimes through legal language because that would leave us without an adequate descriptor for the wrongs perpetrated on victims. At the same time, I take the point that many do not like that language and consequently, a systematic review not just of the content of the law but also the language in which it is drafted is needed. It is depressing to begin by suggesting that the committee needs to stand back from this issue by a distance that may not be possible to achieve given the constraints that it is under.
In the CC case, section 1(1) was struck down because of the absence of a defensive mistake as to age. Without going into the Supreme Court's reasoning, it was based on the proposition that what it describes as mental guilt is a sine qua non of criminal liability for what it then described as “real crime”. Anyone who read that judgment, and certainly a criminal lawyer, was immediately struck by the fact that it is not clear from Mr. Justice Hardiman’s language whether in that last proposition — that mental guilt is a necessary condition of criminal liability for real crime — he was speaking descriptively and saying that was just a fact of life typically in the criminal law, or perhaps he was speaking normatively and saying it ought to be like that. If he was speaking descriptively it is plainly false to claim that mental guilt, as he described it, is a necessary condition of criminal liability. That is just not true. The Supreme Court has got off rather lightly on this. If the court was speaking normatively and saying that this is how criminal liability should be configured in respect of what it termed “real crime”, then it is an inappropriate way to decide how the mental element in serious crime should be configured.
Let us take the descriptive point first. The claim that, as a matter of descriptive fact, mental guilt is a necessary condition of criminal liability for real crime is not true. Even if one examines the law of murder in this jurisdiction, there exists a phenomenon called implied malice. No legislator present is old enough to remember the enactment of the Criminal Justice Act 1964, which abolished what used to be known as constructive malice but retained implied malice. In plain language, implied malice means that it is enough for the prosecution to prove an intention to cause serious injury to convict the defendant of murder if the victim dies. There need be no mental guilt as to the death of the victim. The person might be perfectly innocent as to the death in the sense that they did not intend the death, were not reckless as to the cause of the death and possibly were not even negligent in respect of the death.
Let me provide an example. Let us imagine that someone were to kneecap a person at the front door of a hospital in the hope that they would be treated and would not die but that he or she did subsequently die. If the prosecution can show that the defendant intended to cause serious injury, he or she, notwithstanding the fact that there was no mental guilt as to the causing of death, is guilty of murder. If the judge was speaking descriptively, the Supreme Court cannot be correct in saying that mental guilt was a sine qua non of criminal liability for real crime. Nobody could deny that murder is real crime.
Constructive malice was ended in this jurisdiction in 1964. However, members will know from TV programmes that the felony murder rule is still the law in many states in the US. If the defendant causes the death of a person in the course of committing a felony, it could be robbery or rape but not necessarily a crime against the person, and if the prosecution can prove the mens rea for the felony, the result will be a conviction for murder.
To my knowledge — the distinguished legal advisers to the committee may correct me if I am wrong — the constitutionality of mens rea has never been challenged in the United States of America. There is no suggestion that because one deviates from the mental guilt requirement in respect of the felony murder rule, one simply cannot have that and one must reconfigure the criminal law in order to bring it into conformity with the notion that one must have full mental guilt — I am using the language of the Supreme Court here — in respect of every element of the offence. It is just plain wrong in respect of the principle that mental guilt is required as a sine qua non. In my judgment, the entire CC decision rests on that proposition. That is what I have to say on the notion of constructive malice.
I should mention briefly the unlawful act doctrine in manslaughter. Members may know that the latter permits the conviction of a person for the second most serious crime in the criminal calendar, namely, manslaughter. They may disagree on how these things should be categorised but, by any account, manslaughter is a serious crime. The unlawful act doctrine permits a person to be convicted of manslaughter even though all the individual intended to do was to push somebody over. However, the individual who was pushed, lost his or her balance. hit his or her head off the kerbstone and either bled to death or died as a result of the fall. The last thing the person who pushed him or her over wanted to do was cause a death or serious injury. However, he or she will nevertheless be convicted of manslaughter even though there was no element of mental guilt in any meaningful sense in respect of the precise outcome, namely, the death of the person pushed over. Again, I stress the point that the basic proposition on which the CC case rests is at least open to question. There are other examples but I do not want to go on ad nauseam.
I read the Supreme Court judgment a couple of months ago. Sexual offences are unusual in so far as it is possible for somebody to commit what we objectively consider to be an offence when the individual may not think he is committing an offence or doing any wrong at all. It is not a question of an individual doing something that he thinks is slightly wrong and being convicted of something that is very wrong. The individual may think he is doing nothing wrong.
I understand Professor McAuley 's point about mens rea, guilt, or mental guilt is essentially the same as intent. Is the professor making the point that those three concepts mean the same thing?
Professor McAuley
Senator McDowell made a good point. It would be interesting to probe what the Supreme Court meant by the concept of mental guilt. It certainly meant to include intention and it very probably also meant to include what is known as subjective recklessness. It is arguable that it meant to include some sort of negligence.
It is possible for a 25 year old to have sexual intercourse with a 16 year old and believe that he is doing nothing wrong.
Professor McAuley
Yes, and I do not dispute it. As I understand it — I could be completely wrong — the foundation stone on which the CC judgment rested was the notion that mental guilt is required as a sine qua non of criminal liability and by accepting that proposition enabled the court to say that section 1(1) is unconstitutional because it does not meet that demanding standard. My argument is that if it was speaking descriptively it was wrong. There are plenty of examples in the criminal law where there is no mental guilt, yet we do not immediately suggest in the case of murder that, for example, the implied malice doctrine should be expunged from the law on the grounds of a lack of constitutionality.
A number of members are anxious to question Professor McAuley on issues such as the actual terms of reference. Perhaps, with his agreement, we could now proceed to take questions and answers in the limited time available
Professor McAuley
I would like to conclude because I have one or two points with which I wish to deal. I could be questioned on these when I have finished. I take the Chairman's point and I will not dwell overlong on them.
I must protect myself. I made a serious criticism of the Supreme Court and I would, therefore, like to add that it may not have been speaking descriptively, it may have been speaking normatively and the argument on which the whole matter is based may have been that this is how the criminal law should be perceived. That is a completely different argument. My response to that would be that when one is trying to calibrate what the mental element for serious crime should be, one ought not to be beginning with a set of criteria developed outside the criminal law in the context of the constitutional law driven by considerations such as equality. One ought to be examining the actual content of the criminal law and reasoning inductively from the offences — historical and actual as you find them — and developing some notion of how liability should appear.
When discussing this with the Minister of State with responsibility for children's affairs Deputy Brian Lenihan, I suggested that one is like a cartographer. If there was no map of Ireland in existence, one would not want a person to develop an idealised image of what the country should look like. One does not want anyone to fly so high over the country that the imaging equipment would distort the reality, one wants an image that will reflect the inlets, the estuaries, the rivers, the humps, the hollows, the mountains and so on. One then comes to an appreciation of what structure mens rea should have in respect of this or that offence. One does not begin with a set of abstract propositions derived from a body of jurisprudence and doctrine which has nothing to do with the criminal law and which stands outside it under the umbrella of the constitutional law. My answer is that the court was speaking normatively but I still believe it was wrong.
I favour the status quo ante. I would have no difficulty about returning to the status quo ante, namely, to the position we were in with section 1(1). As I am not a constitutional lawyer, I do not know whether one can achieve that outcome without a constitutional referendum. It may be that one would not need a constitutional referendum if one were returning not exactly to the status quo ante, but if one were stopping short of that and not permitting a defence if one is talking about a defendant who is much older than the victim. I will leave that point to one side.
If it is decided not to restore the status quo ante, I am sure the committee would want to hear what I think the law ought to look like in that case. I hope I can be of some help or assistance to it. Many of these are policy questions and, in a sense, my view of policy is no better than that of the conductor of the No. 10 bus, on which I frequently travel, but yet people think that because it is bound up with the law, a lawyer can give a definite ruling on it.
I am absolutely certain of one thing, namely, that if we must have a defence of mistake as to age in the legislation, which is the case in the 2006 Act, it should be calibrated differently from the way in which it is currently set. I have long argued — anybody who knows my work in the criminal law will know that I have been boring them for more than 15 years with this argument — that mistakes should be reasonable. I can see no compelling reason that it is possible for a defendant to say that I thought X or I thought Y. One does not permit a member of one's family to offer excuses that are not based on reasonable grounds. If one is standing outside a cinema and if one's wife, girlfriend or who so ever tells one that she thought you were to meet at 7.30 p.m., she would be obliged to say that she thought that because she thought she heard one say that was the time one were to meet. The notion that one could utter an excuse to the effect that one had made a mistake — without any supporting basis in objective reality — seems to be nonsense.
This was the dogma that entered the law with the Morgan case, which was decided in 1976, and it has been a blight on the criminal law. The UK Parliament got rid of it in 2003 and it no longer forms part of the law on sexual offences in that jurisdiction. Mistakes must now be reasonable in answer to a charge of rape. We codified the law in the 1981 Act, adding a rider to the effect that juries must have regard to the presence or absence of reasonable grounds. However, the ultimate question continues to be whether or not the defendant actually believed what he claimed to believe, which is a subjective test. That is wrong and should be changed.
While I am open to persuasion, I remain old-fashioned on the age of consent, which should remain at 17 years.
Is that only by reason of old-fashionedness or is there some other reason?
Professor McAuley
I am simply of the opinion that it serves a very useful purpose.
Was Professor McAuley convinced by the views of the Director of Public Prosecutions?
Professor McAuley
I am not supposed to have heard them.
That is a lawyer's answer.
What would be the position if Professor McAuley had heard them? Unlike Caesar, he turns the other ear.
Speaking as a lawyer, we would have a legal presumption.
Professor McAuley
If the Director of Public Prosecutions said the age should remain at 17 years while prosecutorial discretion sweeps up the difficulties——
I should not have asked the question.
We are in public session.
Professor McAuley
I like the age of consent and the idea of it remaining at 17 years. I am not persuaded by the merits of a capacity-based approach, about which one often hears. If a capacity-based standard were introduced, there would be cross-examination of victims on the issue of their capacity.
What does that mean?
What does the term "capacity" mean?
Professor McAuley
If it was decided to remove the fixed age of consent of 17 years, a different standard would decide whether the person had the capacity to——
We would have some age, obviously.
Professor McAuley
Yes, but my point is that in some jurisdictions there has been a move away from an age of consent with a recalibration of the issue as one of capacity, which is the person's understanding of the nature of the act.
That is not on our agenda.
Professor McAuley
That is fine.
It has arisen in some of the submissions.
Professor McAuley
I am delighted to hear that there is not significant enthusiasm for that approach because it is not feasible.
It is completely out of the question.
Professor McAuley
The question of age bands also arose. Again, I like the old-fashioned idea of providing for prosecutorial discretion. Not having heard the Director of Public Prosecutions, I do not know whether he favours such a policy. There is a great deal of support for age bands with people suggesting that there should only be an offence where the offender is two or five years older than the victim. Such an approach introduces unnecessary complication into the law. My preference is to leave things as they stand, while allowing prosecutorial discretion. My understanding is that discretion solves the problems we have seen. One does not want people to be prosecuted where two teenagers have engaged in experimental sex. Where there is no element of exploitation, there should not be a prosecution. My understanding is that prosecutions do not take place in those circumstances, although I am not a practitioner and do not see into the bowels of the Director of Public Prosecutions' office. There is no problem in this instance. Broadly speaking, a prosecution goes forward only where there is a serious issue of exploitation.
Most academic lawyers would not take this view and would contend that in a democracy, the rules should be public and above board and that decisions like this should not be made by unelected officials. While it is a powerful argument, the law is not geometry. It is not about straight lines and sharp angles.
It is the business of the Oireachtas.
Professor McAuley
I appreciate that. I am simply giving my view that prosecutorial discretion, for all its warts and faults in a democracy, has served us well. If it proves too difficult to create a set of rules to solve all our problems in an open and transparent way, there is not a great deal wrong with continuing with the system of prosecutorial discretion.
On the issue of gender neutrality in the definition of the offence, I favour strongly the retention of the status quo. We should have an offence which looks recognisably like what we used to call statutory rape. The old offence of statutory rape was in every respect, bar the problematic respect of consent, intended to be a mirror image of rape itself. Consequently, I would be loath to see it swept away to no longer have an offence of statutory rape. The Oireachtas may want to calibrate it slightly differently, but the fundamental offence should remain. I understand that there is a residual problem in maintaining the offence of what to do about a male of the species who happens to be a victim. While I am not sure of the answer, it will probably involve the creation of a different offence defined as some species of defilement. I would be loath to see the offence of statutory rape dispensed with on the ground that gender neutrality demands it. I take the Aristotelian view that one treats like cases alike only if they are alike. If they are not alike and there are good and compelling reasons to have a gender-specific offence, as I believe there to be in respect of statutory rape, it should be maintained. At the risk of driving the Supreme Court mad, it has served the jurisdiction very well and we should tamper with it only if there is no other way to solve the problem.
My final points relate to procedure, though I do not have a great deal to say on the matter. I absolutely accept that if we cannot return to where we were and must have cross-examination on a grand scale of young female victims and certainly child victims, there will be a requirement for infrastructural development. There will be a requirement to train people at every level in the system, including gardaí. I noticed in Mr. Murphy and Mr. Guerin's excellent summary that there was a suggestion of an advocate for child witnesses. One would not rule out that interesting idea. It is obvious that court facilities, including waiting areas, would have to be modified. Anyone who knows anything about the system is appalled by the state of affairs in that regard, especially in respect of young victims.
Video-recorded statements are also a very good idea, as are video links. However, while I am not a practitioner, I do not like the idea of cross-examination being unduly diluted. Even where there are compelling reasons to make adjustments from the perspective of child victims, ours is an adversarial system and the rights of the accused person, while not necessarily paramount, are real and should not be compromised out of existence. I get very nervous when an unduly restrictive set of constraints are imposed on how much questioning there can be. This is the best reason of all for the status quo ante argument, as it is what the old offence was designed to avoid. We should not forget it. The offence was designed to avoid the very problem we must now solve, namely, the need to cross-examine witnesses due to the corresponding rights of defendants in adversarial criminal trials.
I have gone on long enough. I hope I have been reasonably coherent and put forward the main points I thought might be of interest and assistance to the members.
I thank the professor for his comprehensive presentation. We have taken detailed notes and some members will have questions. Mr. Shannon circulated a very helpful submission, which members have had an opportunity to read. I invite him to make a presentation on the key points.
Mr. Geoffrey Shannon
I thank the committee for the opportunity to address it. I have decided to focus on three key issues. The first of these is the desirability of amending the Constitution, particularly from a child protection perspective. The second issue focuses on the criminal justice procedures. I make this submission having had the benefit of supervising a PhD thesis on this matter. I can probably impart some of the conclusions of that research, which will make sobering reading once it is published. The third issue involves the matters surrounding the age of consent.
I will begin by addressing the constitutional issue. Under our child protection system, we have two very different protection regimes in respect of marital and non-marital children. In respect of non-marital children, the welfare and interests of the child are treated as the court's primary concern whereas in the context of marital children the task of the court is not to examine the best interests of the child but whether exceptional circumstances of parental failure have been shown. There seems to be a difference in the protection of the right to parentage of the children of both married and unmarried couples. In the case of the marital family, the right to parentage is presumptively enforced whereas the right to parentage of the child of an unmarried parent must be positively shown to be of benefit to the child if it is to be upheld by the courts. The constitutional presumption of the paramountcy of the family eschews child protection in favour of the defence of the autonomy of the parents and has the potential to produce sub-optimal welfare outcomes for the children of marital families.
In essence, the issue — the main obstacle — is that this impacts on the State's ability to protect children in that there is a strong presumption that the interests of the child are best served by participation in the constitutional model of the family. Article 42.5 of the Constitution establishes a very elevated evidential threshold for State intervention. This is very well demonstrated in the court decision in the case of the North Western Health Board v. HW and CW where the parents refused to allow a diagnostic PKU test to be conducted on their child. The test involves the taking of a sample of blood by means of a heel prick and has been proven to reduce the incidence of a number of serious childhood illnesses such as, for example, coeliac disease. The performance of the test is unquestionably in the best interests of the child. However, on that occasion the Supreme Court characterised the behaviour of the parents as both unwise and disturbing but was of the opinion that the autonomy of the parents prevented the State from intervening. From the point of view of child protection, the State’s ability to ensure the welfare of the child is inhibited by the insistence on the proof of exceptional circumstances.
There are three very telling examples in the HW decision. Mrs. Justice Denham talks about there having to be an immediate threat to the life of the child, the Chief Justice makes reference to the fact that there needs to be an immediate and fundamental threat to the capacity of the child to function as a human person — deriving from an exceptional dereliction of parental duty — and Mr. Justice Murphy refers to parental neglect, which would constitute an abandonment of the child and of all rights in respect of him. This exposes the children of marital families to the risk of harmful treatment, which, although welfare adverse, does not satisfy the criteria of exceptional circumstances. If we consider the children of the non-marital family, the absence of a provision in Articles 41 and 42 allows the court to treat the welfare of the non-marital child as its primary and paramount concern. The rights of the parents are taken into account by the court but are only a subsidiary factor in its overall welfare assessment.
In essence, there are two very different child protection regimes that lead to an unsatisfactory outcome in certain cases. If we ask why this is the case, the answer is that the Article 42 provision constitutes the single biggest obstacle to a successful child protection regime. A number of recent judgments, particularly those in the public domain in the past two weeks indicate an attempt to adopt a more child-centred approach. The judgment of Mr. Justice MacMenamin in what has become known as the Baby Ann case and last week’s judgment by Mr. Justice Abbott illustrate that point. However, one can only acknowledge that is a strange interpretation of the Constitution and that it gives rise to the need to focus on the issue of the welfare of the child.
If we consider where to go from here, it may be the case that, in time, the courts could readjust the nature of the constitutional balance between child protection and parental autonomy. As far as I am concerned, however, this is not supported in terms of the text of the Constitution. The dominant constitutional orthodoxy is inclined against this as is the wording of Article 42.5. If we want to ensure that the right of children to have their welfare protected is properly assured, we must do so on the basis of an insertion of the provision in the Constitution protecting their interests. I am in no doubt on that point.
How the committee goes about its work on this issue is important. Although there are a number of models, I do not intend to go through them. However, one issue that will need to be addressed is the recommendations of the constitutional review group in 1996. Those recommendations were made in the context of a general redrawing of Articles 41 and 42. The committee may be looking at something below that in the context of enshrining a right to protection but continuing to maintain the paramountcy of the family. I am convinced that this can be done within the current constitutional context.
We must also consider the international obligations in this area. In the submission I circulated, I referred to the Council of Europe Recommendation 1371/1998 on the abuse and neglect of children, which considers that children need specific protection because of their vulnerability and their less developed capacity to judge various risks that adults are able to assess, such as sexual abuse, rape, prostitution, pornography, incest or ill-treatment. Of the other models, the German constitution is interesting because the welfare authorities in that jurisdiction are in a position to intervene in situations in which welfare adverse treatment of the child exists. The South African constitution is especially interesting in that it contains a provision on child protection, section 28.1.d, which is worthy of particular attention, and that section 37 provides that the provision is non-derogable, which also should be noted.
Let us consider how different countries deal with the issue of the child's evidence. I have heard discussion on this issue. It is interesting to look at some of the international models, particularly that which obtains in the United States. It should be noted that an accused in that jurisdiction has an unconditional right to be allowed to confront a child witness. Our system seems to be more child friendly in what it attempts to do. The United Kingdom has very interesting measures for the protection of vulnerable child witnesses, particularly where children are under the age of 16 years. One provision of note is that no cross-examination can be undertaken by an unrepresented defendant. One of the most enlightening models is the Vulnerable Witnesses (Scotland) Act 2004. Given the inquisitorial nature of that system, it is not surprising that it is more child friendly. It allows a commissioner to take the evidence of a child who is not in a position to give evidence, in other words, a vulnerable child witness. Section 116 of the Criminal Justice Act 2003 in that jurisdiction allows a prior written statement to be read into evidence if the attendance of the witness in court cannot be secured. In Germany, which perhaps has the most enlightened of all models so far as children are concerned, section 241a of the German Code of Criminal Procedure is instructive because the interviewing of child witnesses under 16 years of age is solely conducted by the presiding judge. This may provide some food for thought in the context of the committee's deliberations.
Without any cross-examination from either side.
Mr. Shannon
Exactly. The evidence is sifted through by the judge who in many respects acts as a conduit for the questions. This system has proved to be hugely successful in terms of the research emanating from there. If I might expand, one of the issues in terms of the constitutional concerns people might have is that there is still the opportunity to ask questions but its effect on the child is tempered by the judge putting the questions directly to him or her.
Regarding the age of consent, no one age of consent is dominant. There is a consensus around a cluster of ages — 14, 15 and 16. If we look, in particular, at the UK model, the Sexual Offences Act 2003 provides for a gender neutral age of 16 years. Another interesting provision in that jurisdiction is the one in legislation for specific additional protection for children under the age of 13 years. Another issue worthy of note is how The Netherlands deals with this issue. It also has interesting provisions to which I refer in the hand-out I have circulated. One issue of further interest is what one does in the context of the half-way house provisions. This is an interesting example in respect of other jurisdictions because if we look at the chronological approach to which Professor McAuley referred and if we want to temper it, some of the models I have cited in the paper might be of assistance. It would allow the age of consent to be varied upwards, which is another way of dealing with the issue. The experience in The Netherlands dealing with the abuse of trust provision which is dealt with in the legislation throws up interesting examples. One is that it deals with economic duress, an issue that might be referred to in the legislation. It has been particularly successful in that jurisdiction in terms of the research emanating from there.
If we look at the age of consent, we see that the age of 17 years is especially high. I would suggest a lower age coupled with upward variance.
I thank Mr. Shannon for submitting a very comprehensive written presentation beforehand which has been circulated to all members.
I will start with the age of consent issue. I was fascinated by Professor McAuley's suggestion. I am sure he will understand our difficulty with the suggestion that we should enact or re-enact legislation with the specific intention that it would not be implemented or that the discretion of the Director of Public Prosecutions would be used in a particular way. Surely we cannot do this.
Professor McAuley
I will respond by asking the Senator a question. What is so terribly wrong with using prosecutorial discretion to solve a problem that it may not be possible to solve otherwise?
We would be introducing legislation that we do not want implemented.
If it is a grey area, there is nothing wrong with it. However, if we specifically, deliberately were to enact a law that we do not want implemented, it would be very dishonest of us in our role in the process of making law.
Professor McAuley
We will have to disagree. I am not a legislator but I genuinely do not see anything wrong with relying on the principle of prosecutorial discretion.
Is this about clarity and about what the law is? This is an issue I took up with the Minister. We cannot enact law on the assumption that nobody will be prosecuted.
Professor McAuley
That is not what I am saying. If one is focusing on the issue of age of consent——
If two young people of 16 years of age have consensual sex, that is unlawful and we decide that we will not prosecute, is that not——
Professor McAuley
No.
If it were an old Act from 1935, that would be one matter, but if we were to reconstitute it in 2006, how could that be right?
Professor McAuley
I do not think it is as horrendous a scenario as the Deputy describes. The basic point of the legislation is to catch exploitative sex with persons under the age of 17 years. That is the point of having the legislation. The bar is set where it is in order to achieve that result. There will be experimental sex between consenting teenagers. We do not want this in the net, but the reasons for drawing the line where it is drawn are compelling. I take the point that a legislator does not have the luxury of looking at it in the way I am looking at it.
We have a particular role in the process. Mr. Shannon comes to entirely different conclusions in that he argues for a lower age of consent. I do not quite understand the notion of the possibility of variance upwards.
Mr. Shannon
It is sometimes too simple to suggest we should peg the age of consent at one age. We must look at the complexities inherent in childhood. The current legislation does not cater for some the issues likely to arise such as economic duress. One would then have a more sophisticated system, to which I refer in the paper by way of examples.
Does that not introduce much uncertainty into the law?
Mr. Shannon
I concede that it introduces uncertainty. However, to suggest one can take the approach that one size fits all is to misunderstand the complexities in this area. In respect of other jurisdictions, what I have tried to do is conduct a survey of how this is dealt with across all of the other EU member states and that seems to be the approach. Maintaining the age of consent at 17 years would put us significantly out of kilter with other jurisdictions.
With the consent of the Chairman, I will make some comments on the implications of the decision in the case of CC v. Ireland and Others. The Supreme Court upheld a challenge to the constitutionality of the strict liability offence. It is important to examine the implications of the approach of Mr. Justice Hardiman in that context. He upheld it on the basis of the absence of a defence of reasonable belief that the girl in question was not under the age of 15 years in the case in question. He acknowledged the importance of the public policy objective behind section 1(1) of the Criminal Law (Amendment) Act 1935. In addition, he conducted a balancing exercise between the rights involved. In moving forward this is something of which we must be cognisant. It is not that the Supreme Court has failed to factor in the child protection issues. This has very significant implications. A major problem with an attempt to restore a strict liability regime is that it would be so offensive to the rule of law that it would be almost impossible to justify.
That is what Professor McAuley has just proposed. To suggest a strict liability regime would be so offensive to the rule of law as to be impossible to justify is pretty strong.
Mr. Shannon
Yes. Let us look at the way the committee might proceed. How would giving constitutional protection to the importance of child protection fare in the context of the new order? It would not alter the outcome because that was a factor to which the court already had regard. Following that logic further, the strict liability regime under section 1(1) would require the courts to adopt an interpretation of the rights of the child which would be superior to all other constitutional considerations. That would be a high standard to adopt. How would we achieve this? A reference to the welfare of the child being paramount could achieve such an outcome but would have profound implications for a range of other issues such as the law on deportations and the provision of educational facilities.
There is little that can be done to restore the law to the position it was in before the CC case, short of an express constitutional amendment. I say this with regret. Further, we see it is important to recognise the strict liability regime under section 1(1). That offence infringes upon the right of a blameless accused person to such an extent that it would be unlikely to survive any attempt at a balancing act.
Section 1(1) is likely to withstand constitutional challenge only by inserting into the Constitution a provision expressly providing that unlawful carnal knowledge can be a strict offence. That would be my analysis from a child protection perspective.
Could it not be provided more positively by inserting in Article 38 of the Constitution, which deals with the trial of offences, a provision that in the case of children the Oireachtas may make special provision for strict liability offences? That would be a more positive measure.
Mr. Shannon
It would be an alternative way.
It would be a more positive way of expressing the principle.
Section 2 of Mr. Shannon's report deals with child protection and the Constitution. As matters stand, it seems that marital and non-marital children are afforded protection under the Constitution by virtue of its protection of the family. Does this not discriminate on grounds of birth and other status? Is it not completely unworkable and ad hoc in the modern era when it is hard to define a family and there are many types of household which do not fall into any clear definition? The rights and protection of children should not depend on class or parentage but on the right of the child to be meaningfully recognised. There is one law for a marital child and another for a non-marital child. Surely the rights of a child should come first, regardless of his or her parent’s status.
Mr. Shannon
The way the Constitution is constructed results in two very different child protection regimes. In fact, the non-marital child receives greater protection from a welfare perspective than a marital child, which is one of the greatest ironies within our current system. We should be looking at inserting a child protection provision in the Constitution. This does not necessarily involve altering the paramountcy of the family within Article 41 of the Constitution. It can be achieved without doing this. I would have thought that it would be a matter for the Government to decide, if it wants to proceed along those lines.
Can it be done by legislation?
Mr. Shannon
It cannot be done by legislation. The Supreme Court has ruled in four landmark decisions and reasserted again and again the exclusivity of the constitutional family. This has very significant implications for child protection in a number of areas, particularly in the PKU case, which I outlined.
Professor McAuley made some interesting comments. I am unclear as to his precise position on the best way to proceed. I detect from his remarks that he is in favour of the position which pertained before the recent Supreme Court judgment. Does he advocate a referendum to get back to that position? He remarked that the offence of statutory rape might need to be calibrated. What calibrations does he suggest? He argued strongly that certain procedures, particularly with regard to cross-examination, should not be diluted. Can he comment on the point made by Mr. Shannon regarding what pertains in other jurisdictions for those who are of an age where they should not be subjected to the rigours of cross-examination?
Professor McAuley
As Senator McDowell has pointed out, we are two individuals and there is no guarantee that we will come to the same conclusion.
That is evident.
Professor McAuley
I certainly dissent from my colleague's view, if it is his view, that strict liability is incompatible with the rule of law. That is not true. There are many areas in the criminal law where strict liability is necessary, certainly desirable, notwithstanding the fact that, by definition, the State in a strict liability offence is not required to prove any element of mens rea as we traditionally understand it. I gave the examples from the law of murder. I do not think anyone would dissent from the view that, notwithstanding the fact that there is no mental guilt in the Supreme Court sense in respect of the causing of death, if one intends to cause serious injury and the person dies, one is guilty of murder. We do not need a constitutional referendum on this. My further submission was in respect of the unlawful act doctrine in manslaughter. I also gave the example of the felony murder rule in the United States.
This may not have been what Mr. Shannon intended and I do not want to make a mountain out of it. However, the first point is critical. Strict liability and the rule of law are perfectly compatible. There may be good compelling policy reasons to depart from mens rea. It might be to protect a young vulnerable victim, as in the case of statutory rape. In my judgment — I could be wrong — that is a good and compelling reason. Outside the area of serious crime such as in pollution offences, one can operate the strict liability regime and nobody bats an eyelid. That is a key distinction.
There is a notion that strict liability is the same as absolute liability. There is some slippage. There is an assumption, certainly in the Hardiman judgment, that strict liability and absolute liability are one and the same. They are not. The suggestion that because liability is strict there is no moral blame is false. Let us take the classic instance of a person of a certain age having sexual relations with an under-age female. One might describe the actus reus of this offence by saying the person is having sex with an under-age person who might not be of age. Therefore, the person is engaged in risk-taking conduct. There is an element of moral blameworthiness. Even if the person claims he believed the female was of age, there still might be an element of moral blameworthiness. What level of investigation did that person engage in to establish that the risk, even though it is only theoretical, was not present in the instant case? The notion that there is no element of moral blameworthiness simply because one is applying strict liability introduced the rule of law contingent.
I invite Mr. Shannon to reply to Senator Walsh's question.
Professor McAuley
I suspect that we do not disagree.
Mr. Shannon
We are two individuals. I will offer in support of my thesis a decision of the European Court of Human Rights and, in support of my argument, the position in which Norway found itself last year. Norway considered examining a strict liability offence similar to what the committee is contemplating, but an interesting decision of the European Court of Human Rights found that, in the child protection context, a strict liability regime infringes Article 6 of the European Convention on Human Rights.
While Professor McAuley and I are not at odds, I am sounding alarm bells. As the State has incorporated the convention into its domestic law, the committee is obliged to consider the court's judgment, which raises question marks about the State's ability to re-enact something similar to a strict liability regime in a child protection context. This is a case in point.
I am advancing this not only as a result of my views in respect of child protection — one can certainly reconcile the different approaches adopted — but because of my perspective as a child protection lawyer. I am examining the matter with the benefit of having read the court's decision. We would enter dangerous territory by introducing a strict liability regime without having regard to the State's obligations under the convention.
Did this case relate to a criminal statute?
Mr. Shannon
It related to a criminal statute similar to what the committee is considering.
Does Senator Walsh wish to ask a question?
No.
Professor McAuley has considerable expertise in criminal law and comparative criminal law. Regarding statutory rape provisions and this type of offence, is it common for issues relating to knowledge, such as awareness of age, to be excluded in many jurisdictions?
Professor McAuley
It is not uncommon in the United States of America. That it is not uncommon was my general point. I concede that the Michael case was discussed in the CC case and we must admit that the decision on this point was narrow. While the Supreme Court in the CC case did not brush aside the precedential authority of the Michael case on the grounds that it was so narrow, the fact of the matter is that five members of the Supreme Court took one view while four members has a different vision. Both views on strict liability were forcefully put in that case. In his wisdom, Mr. Justice Hardiman took one side of the argument and was persuaded by it, but there are some, including me, who take a different view.
If we want to change that situation, we must have a referendum.
Professor McAuley
Yes.
Before we visit that country, one of our first tasks will be to determine whether the 2006 Act is workable or can be improved upon. A view has been expressed that it is desirable to recognise that, in effect, statutory rape can only be committed against a woman. Does Professor McAuley agree with that view?
Professor McAuley
Yes. As I said, I may change my mind, but there are good and compelling reasons for retaining the statutory rape provision. There is a difference between the mechanics of the defilement of females and males. A phrase that has been used previously is that this is an analogue for ordinary rape. The ordinary law of rape is not gender neutral.
Professor McAuley has lost me. Clearly, the mechanics are different because men and women are biologically different, but is Professor McAuley suggesting that one is of a lesser order of wrong?
Professor McAuley
I do not wish to speak for the female of the species, but because the female is penetrated, the order of wrong is different. We should face that fact. If we were reinventing criminal law, we could decide not to make rape an offence or include it under section 4. Instead, we could have a general offence of assault.
In legislative history, I understand that women's groups wanted the offence of rape included under section 4 because there was a specific heinousness about the act of penetration. In that case, it was penetration of orifices other than the vagina or the penetration of the vagina by bottles, sticks and so on. The point was forcefully made that this heinousness should be reflected in the nomenclature of the law.
Does Professor McAuley believe we should be gender specific in our legislative description of physical acts when drafting legislation?
Professor McAuley
In this regard, yes.
In some jurisdictions, an offence of abuse of authority exists where particular relationships of authority have been established, such as a priest and a parishioner, a teacher and a student, a doctor and a patient, a youth worker and a youth——
A sports coach.
From recent experience, there are some obvious categories that we know all too well. Professor McAuley stated that consent does not arise in those particular relationships due to the nature of the trust between the parties. Does he accept, however, that an age limit as high as 18 years in such instances as a reasonable proposition of law?
Professor McAuley
Yes.
For example, a teacher would be told that he or she could not have sexual relations with a student under the age of 18 years. It is a radical proposition.
Professor McAuley
I would not dissent from that.
Is Professor McAuley aware of this type of provision in other jurisdictions?
Professor McAuley
I have not read any case law on how they operate, but I know that there is this provision.
In Canada.
Professor McAuley
I would not dissent from it as a model.
I thank Professor McAuley for his assistance. Could our legal adviser investigate our obligations under the European convention? It is an important issue because Ireland is a state party to the convention and there is no point in proposing something if it will be in breach of the convention. We should clarify the issue, but we should not examine it further this evening.
Mr. Shannon has provided some material on procedures, but is he proposing any legislative change in that respect or does he believe that the provisions of the Criminal Evidence Act 1992 would address the procedural difficulties if implemented?
Mr. Shannon
If implemented, the 1992 Act would deal with the difficulties we have encountered. Regarding the types of issues beginning to emerge, I will offer the benefit of the experience of the researcher I have been supervising. One issue would be the necessity for special training for judges and lawyers involved in multidisciplinary work. In a number of audited cases, the researcher found that the child was looking at the head of the senior counsel rather than at that person directly. It must be incredibly intimidating for a child in an already traumatic situation.
We could address the use and availability of equipment, which is not available in all courts. The legislation is good, but we must examine its resourcing and the training in and use of equipment. From a survey, our procedures compare favourably with those of other jurisdictions, but it is in resourcing and usage that difficulties arise.
Mr. Shannon commented positively on the Legislature and legislation.
Mr. Shannon
Yes.
Is he satisfied that the legislative framework of the 1992 Act deals with examination, cross-examination and re-examination and provides a statutory framework where we can develop the appropriate services and make them child friendly?
Mr. Shannon
It is a good statutory framework.
Would Professor McAuley accept that?
Professor McAuley
Yes.
The notion of the German procedure whereby the judge has an inquisitorial role was canvassed. Perhaps the Minister of State will have an opinion in this regard. Is such a system possible in Ireland without a change to the Constitution? None of us would canvass a change, but if the system's introduction is possible without one, we might explore the matter further.
I will give my own view, although I am present in my capacity as a Minister of State. It is clear that the Supreme Court has indicated that the right of cross-examination is a fundamental feature of our constitutional arrangement. To revise it in the manner suggested by the Senator and replace the accusatorial system with the inquisitorial system would be a very dramatic step in terms of existing law.
It would specifically be for vulnerable witnesses such as children.
Mr. Shannon referred to Germany. The report he gave lists many countries that have this procedure. If we were to allow such cross-examination, it would be the exception rather than the rule. Is that correct?
Mr. Shannon
I can offer some assistance in respect of Supreme Court decisions in this jurisdiction. I defer absolutely to the instructing lawyers of the committee but this issue has come before the Supreme Court in both Donnelly v. Ireland and White v. Ireland. The right to confront a witness does not create the problems we think it might. If the provision were properly drafted with many caveats and properly managed, it could work. I would not exclude it. I agree with the Minister of State that it would create difficulties in terms of the Constitution but if one examines in detail the decision of the Supreme Court on this general issue, it offers some hope in the context of adopting some form of the German model.
Mr. Shannon has expressed the view that the provisions of the 1992 Act are sufficient to allow us to develop a child-friendly system. Therefore, we do not need to discuss Supreme Court decisions because we have a statute in place. It is a question of providing the backup in terms of resources and appropriate protocols within the profession, as well as the development of expertise among the Judiciary. On the other hand, should we be considering a constitutional change which would change the fundamental character of the proceedings and transform them into inquisitorial proceedings? That, as I understand it, was Senator McDowell's point.
Professor McAuley
The members are the best judges but one would not want to run the risk of diluting the right to cross-examination to the point where one might run the risk of an Article 26 reference. I presume members do not want to go down that road if, as the Minister of State suggests, implementation of the 1992 Act will do the trick.
I have a question to which I would like a specific answer from Mr. Shannon. While he referred to one country in his oral presentation, the document he provided for the committee refers to many. It appears that we would be very much out of synch if we were to allow the adversarial model to cross-examine 13, 14 and 15 year old children. Am I correct that we would be the exception?
Mr. Shannon
All European jurisdications are civil law jurisdictions.
Am I right or wrong?
Mr. Shannon
Within the European Union we are very much the exception in the adversarial approach we adopt.
Mr. Shannon also referred to countries such as Canada and the United States which are outside the——
Mr. Shannon
I referred to the context of the United States, where there is clearly a constitutional provision which is quite strong in that the accused has an unconditional right to be allowed to confront a child witness. Our system is much superior to that of the United States. The difficulties created by the nature of the system——
Which US constitutional amendment is that?
Mr. Shannon
The sixth. If we consider the sixth amendment——
Is that a very old amendment?
Mr. Shannon
Yes. The provision, as it has been interpreted, is quite rigid. There has been no movement, notwithstanding the general movement towards a child's rights approach which has been constrained by the US constitution.
With regard to Senator McDowell's question, I suggested the German model could be canvassed. My personal view is that the 1992 Act is sufficient in protecting children but there is nothing to preclude the committee from also considering the German model, with the appropriate constitutional caveats.
There is opinion within the common law world, the legal family to which we belong in this context and which includes Britain, Canda and other Commonwealth countries, that our 1992 Act is a liberal, progressive measure which, if implemented, would leave us at the forefront of child protection. If we want to adopt a civil law model such as the German model described by Mr. Shannon, in all probability, given the expressed views of the Supreme Court, it would entail some serious constitutional consideration. Is that a fair summary?
Mr. Shannon
It is. The argument I advance is that nothing precludes the committee from considering the German model, having regard to the decision of the Supreme Court in White v. Ireland and Donnelly v. Ireland.
I have dealt with the procedures and criminal statute. The other issue concerns the Constitution. Mr. Shannon has referred to the fact that the Constitution envisages two child protection regimes, one for children of a marriage and one for children not of a marriage. That is certainly the case in the context of adoption, with which I am familiar. However, if one takes the context of a dispute about the care of a child which is classically what child protection is about, one can have a dispute between two persons seeking custody of the child or a dispute where the State seeks to intervene. When Mr. Shannon refers to child protection, I presume he is referring to the State intervening. In other words, where the question of custody is not sufficient to safeguard the interests of a child, the State must consider whether the current custodian is fit to have him or her. The question then arises as to the grounds on which the State can intervene. Is Mr. Shannon suggesting it cannot as readily intervene in the case of a child of a marriage as it can in the case of a child who is not of a marriage?
Mr. Shannon
Absolutely. If we consider the main obstacle to any attempt by the State to undertake child protection measures, it is the presumption that the welfare of the child is best served by his or her membership of the Article 41 family unit. We must consider the HW decision that there needs to be an immediate threat to the life of the child before the State can intervene. I tried to use an analogy to simplify this issue. I suggested there were two tests. First, in the context of the non-marital child, the test is that the welfare and interests of the child are treated as the court's primary context. Second, in the context of the marital child, the court is not asked to examine what is in the best interests of the child. However——-
Mr. Shannon said that already. I am asking a different question. In what context is Mr. Shannon applying this principle? Is it within the context of the Child Care Act, for example?
Mr. Shannon
I am applying this principle in a general fashion.
We need to be specific if we are talking about——-
Mr. Shannon
I am applying the principle in the child care context.
Therefore, in the context of the Child Care Act, Mr. Shannon is suggesting the HSE does not have the same power to protect children who are within a married family setting as it does to protect children not in that setting.
Mr. Shannon
Yes. In advancing that argument I support the HW decision which involved the HSE.
We will have to revisit this issue. Does Mr. Shannon believe it would be fair to consider the constitutional issue by assessing the difficulties that arise in different contexts and finding out how we can address them? For example, the context of criminal procedures which we will discuss is very different from the context of custody disputes which, in turn, is different from the context of child protection. Arising from this, many of the relevant organisations tell me and Members of the Oireachtas generally that we must have a provision stating the best interests of the child should prevail in all matters pertaining to children. However, it would be difficult to persuade the people to accept that formula in the context of State intervention on the basis that social workers could decide what was in the best interests of children in all cases.
That would not carry.
It would not carry muster constitutionally.
Mr. Shannon
I inserted that caveat which may not have been present when I made my remarks. I made particular reference to that point and suggested that using words such as "best interest" and "paramount" would create significant constitutional difficulties and undermine the article.
I thank Mr. Shannon for clearing up the matter.
The Minister of State's point is an important one concerning the dichotomy between the child in a married unit and a child who seems better protected outside the marriage unit. It is an issue we need to consider carefully. In general terms, we can understand why this is so. Mr. Shannon has stated it has general application in specific instances. Is there case law to which he can point us in order that we can ascertain the implications of this issue in individual cases?
Mr. Shannon
There are several cases, the details of which I can pass on to the committee.
That would be helpful.
Do any of the cases involve sexual offences?
Mr. Shannon
A number of them do. This is not confined to one area. It straddles the entire system.
I realise there may be difficulties in this regard but if the results of the research arising from the doctorate were available, they could be very helpful to the committee.
On page 11 of his submission Mr. Shannon's makes an interesting point which arises from the CC case. In the third paragraph from the bottom of the page Mr. Shannon states the court in the CC case came to its decision having already acknowledged the importance of the public policy objective behind section 1(1) which was generally accepted at the time and that Mr. Justice Hardiman expressly adverted to the fact that the protection of young girls was "of course a legitimate end to be pursued by appropriate means" and that the interest of the State in child protection was thus already a factor in the court's conclusion in this case. Nevertheless, it came to the conclusion that the accused's rights were not being protected under the strict liability rules of section 1(1). That was the view of Mr. Justice Hardiman.
Mr. Shannon is coming to the conclusion that he took child welfare into account, in support of which he referred to the South African decision of De Reuck in which its own constitutional provisions for child protection were also invoked in child pornography cases. That may be the view of one Supreme Court judge in this instance but if there are no provisions in regard to child protection and the Constitution, it is the case that another Supreme Court judge could come to a completely different conclusion. In other words, Mr. Shannon stated that in his decision he implied rights in the Constitution in favour of the child. Does Mr. Shannon believe these overarching rights should be expressly stated rather than merely saying it would be a good public policy decision to protect the rights of the child? Should it not be the other way around, with the Constitution telling the Supreme Court on behalf of the people that it ought to have the best interests of the child in mind in making these decisions?
Mr. Shannon
The wording is very important. Certainly, using the words "best interest" would be rather dangerous in the context of advancing a formulation in the Constitution. In putting this submission together I have taken the liberty of presuming that the law, as it stands, is the law post the judgment of Mr. Justice Hardiman. I have tried to look at how he has dealt with the issue of child protection in the context of his conclusions. The point I was trying to emphasise was that Mr. Justice Hardiman had alerted us to the child protection issues underpinning this. When I made reference to this issue, I think I used the words——
When did he become alert to them? Where were they?
Mr. Shannon
He stated, "of course a legitimate end to be pursued——
Did he pick them out of the air or did he refer to Article 41 of the Constitution which states one has to have regard to the rights of the child?
Mr. Shannon
That is the difficulty and what I have been suggesting in terms of the main points I have been trying to advance, that there is a need to insert a general provision in respect of child protection into the Constitution. Given the views expressed, this could be achieved without tampering with or trampling on the Article 41 provision. It is important to realise that, at least in terms of the wording advanced, it does make reference to the child protection issue. We must take cognisance of this. I used the words "so offensive". That perhaps is a logical conclusion of Mr. Justice Hardiman's judgment having considered the child protection issue.
Mr. Shannon has mentioned that his personal preference would be to reduce the age of consent to 16 years, as has been done in the recent UK legislation. Is it not true to say there has been an explosion in the number of teenage pregnancies in the United Kingdom in the immediate aftermath of that legislation?
Mr. Shannon
I cannot offer any guidance. I am not aware of any research and it would be unfair of me to suggest to the committee——
From where did that research come?
It is fairly well known.
Mr. Shannon
I do not have the benefit of it.
We do not have it.
Mr. Shannon might try to get it.
Mr. Shannon
I can offer the committee the benefit of it. I have been centrally involved in judicial training in the United Kingdom, at the request of Lord Justice Thorpe. To my knowledge, that view has not been advanced in terms of availing of the benefit of the operation of that provision in England and Wales.
It would be helpful if the advisers checked that for us.
We might check it. I do not say I am an absolute authority on the matter.
I cannot imagine every 16 year old waiting until it is okay.
Apparently, many think it is already in place here.
On that point, I thank Mr. Shannon and Professor McAuley for a most useful exchange in which many of the issues with which we are grappling were teased out. As Professor McAuley stated, the issues are exceptionally complex and we are trying to come to difficult conclusions. We very much appreciate their assistance.
Professor McAuley
I thank the Chairman. I will provide the committee with an aide-mémoire to the remarks I made, which may be of assistance.
Mr. Shannon and Professor McAuley should feel free to write to the committee if any further points come to mind. The committee held a most useful discussion earlier today with the Director of Public Prosecutions to whom we are most grateful. Our discussions with him and the other invitees will inform our conclusions when we come to make our report.
The joint committee went into private session at 8.25 p.m. and adjourned at 8.40 p.m. until 5.30 p.m. on Tuesday, 3 October 2006.