The primary purpose of this short Bill is to remedy an error in the Criminal Law (Sexual Offences) Act 2006. The particular point we are dealing with was brought to my attention by Deputy Rabbitte last week, for which I thank him. While the error he raised is not as significant as has been claimed in some quarters, I have decided to act quickly and decisively to ensure that the legislation on our Statute Book is as the Oireachtas intended.
What has happened that has given rise to this Bill is that section 6 of the 1993 Act was not updated when some of the sexual offences for which it would be an offence to solicit or importune another person for the purpose of the commission of a sexual act were repealed.
To understand the reason for the offence at section 6 in the 1993 Act, one has to look at section 7, soliciting or importuning for the purposes of prostitution. Before the 1993 Act, there had been no provision similar to section 6. When the 1993 Bill was being drafted it was considered that some types of soliciting might not be caught by section 7 and that it was advisable to bridge a potential gap by protecting children and mentally impaired persons from being solicited for sex in circumstances that might not amount to prostitution. While the fact that section 6 was enacted is evidence of changing times and greater awareness of the dangers of child sex abuse, it was still enacted as a summary offence which to some extent paralleled the section 7 provision which made it an offence to solicit or importune for the purposes of prostitution.
Around the year 2000 there was some concern at the low level of penalty for soliciting for the purpose of prostitution where the person solicited was a child. It has always been the case in Ireland that there was no distinction in law between soliciting a child or adult for prostitution. Of course, where soliciting a child led to actual sexual abuse, the penalties were and still are severe. Accordingly, it was decided to amend section 6 in the Children Act by stating that it did not matter whether the soliciting was or was not for the purpose of prostitution. This meant that soliciting a child for the purpose of prostitution attracted the higher penalty set out in section 6. Advantage was taken to increase the fine to the maximum then allowed in the District Court and to add the offence at section 2 of the 1935 Act to the offences comprehended by the section. But the offence remained a summary offence triable only in the District Court.
Although the original offence at section 6 was a summary offence for which there is no power of detention for questioning, we have to recognise that with modern technology, new impersonal ways of soliciting children have emerged. I have decided to take the opportunity to provide for conviction on indictment with a maximum penalty of 5 years imprisonment. The offence will in future be an arrestable offence which means that the Gardai will have the power to detain suspects for questioning. I have also taken a closer look at the offences for which it will be an offence to solicit or importune another for the purpose of the commission of a sexual offence. At present they are the most serious of offences of child sex abuse such as sexual intercourse and buggery. It is also an offence to solicit or importune a mentally impaired person for the purpose of attempting to have or to have sexual intercourse or to attempt to commit or to commit buggery. A person soliciting a child or a mentally impaired person to commit a sexual act which does not fall into the most serious category but is still objectively serious is not criminalised under section 6.
Therefore, I have added sexual assault to the list of offences in section 6 and this is reflected in section 2 of the Bill. In this respect, the Bill differs from the Bill which the Labour Party helpfully circulated on Friday. It has been necessary to split the section into two subsections as in the case of sexual assault we are only concerned with protecting children but in the case of mentally impaired persons we are protecting adults as well as children.
Section 3 mirrors section 6 of the 2006 Act. As the offence of soliciting or importuning in section 6 of the 1993 Act is not an offence that is included in the 2006 Act it is necessary in this Bill to make separate provision for it. This will ensure that provisions in the Criminal Law (Rape) Act 1981 concerning matters such as the exclusion of the public from the court, preliminary examination, restriction of evidence and anonymity will now apply in cases where a person is tried for soliciting or importuning a child or mentally impaired person for the purpose of the commission of a sexual offence. It also provides for separate legal representation and legal aid in the circumstances provided in the insertion into the 1981 Act by the Sex Offenders Act 2001. As the offence was previously a minor offence it was not seen as appropriate until now to make such provision. In addition, at subsection (4) provision is made for free legal advice for complainants in prosecution of the offence of soliciting and importuning under section 6 of the 1993 Act. This is done by way of amendment to the Civil Legal Aid Act 1995.
Section 4 provides for the amendment of certain enactments. It mirrors section 7 of the 2006 Act and is required for the same reason for which section 3 is required. Four Acts are being amended. The first is the Criminal Evidence Act 1992. The offence at section 6 of the 1993 Act is being included in the definition of "sexual offence" in the Criminal Evidence Act. This means that the provisions in the 1992 Act under which, for example, children can give evidence in court through a television link or through an intermediary in trials for sexual or violent offences will apply where a person is charged under section 6 of the 1993 Act.
The second Act being amended by this section is the Sexual Offences (Jurisdiction) Act 1996. That Act made it possible to charge in the State persons who are Irish citizens or persons ordinarily resident here who are alleged to have committed sexual offences against a child in another country. An offence must be an offence both in this country and in the country in which it is alleged to have taken place. The offences are listed in the Schedule to the 1996 Act. They do not include an offence under section 6 of the 1993 Act and the effect of this amendment is to add it to the Schedule.
The third Act being amended is the Bail Act 1997. As it is proposed to make an offence under section 6 an indictable or serious offence it is appropriate that it be comprehended by the Bail Act provisions under which it is more difficult to obtain bail.
The fourth Act being amended is the Sex Offenders Act 2001 to which I have already made brief reference. The Schedule to that Act contains a long list of offences conviction of which entails an obligation to sign on the sex offenders register. The offence under section 6 of the 1993 Act is being added to the list. However it has wider implications that simply being required to sign on the register. It will in future be possible for the Gardai to apply to the court for a civil sex offenders order where a person has a conviction under section 6 of the 1993 Act, assuming all the conditions of Part 3 of the 2001 Act have been met. Part 4 of the 2001 Act places obligations on persons with a conviction for a sexual offence, including in future an offence under section 6 of the 1993 Act, when applying for work which would entail having unsupervised access to children. Finally, a judge will be able to impose post release supervision in accordance with Part 5 of the 2001 Act on any person convicted of an offence under section 6 of the 1993 Act.
Section 5 increases the penalties in section 3 of the 2006 Act for the offence of attempting to carnally know a person under 17 years of age. Without this amendment, the penalty for the offence of attempting to carnally know such a person would actually be less than the proposed penalty for soliciting or importuning. That would introduce a new and unnecessary anomaly into the penalty structure for sexual offences.
As Deputies will now be aware, making the offence of soliciting or importuning a child or mentally impaired person for the purpose of the commission of a sexual offence an indictable offence has far greater implications than simply increasing the penalty. It means that it is now included in the group of the more serious sexual offences with all that entails. The consequential amendments that it has been necessary to make in this Bill are evidence of that. They are also evidence of the complex and even convoluted nature of the way our criminal laws governing sexual offences have evolved over the years. They are a perfect example of the need for codification of our criminal law - a project which has recently been commenced with the establishment of the Criminal Law Codification Advisory Committee.
Fine Gael had intended using their Private Members Time this evening to debate a Bill which would have introduced a sexual grooming offence. I decided to accept the Fine Gael Bill in principle. I thought it better not to waste time with two debates on the sexual abuse of children in which a certain amount of overlap would develop. Accordingly, I have decided to incorporate the substance of their Private Members Bill into this Bill. This I have done in section 6. When I decided to do this I thought that I could simply 'lift' the provisions in the Private Members Bill and transfer them without amendment to this Bill and if necessary tidy up a minor drafting points when I produce my own proposals on sexual grooming. I took this view in the knowledge that much of the Private Members Bill was based closely on the British legislation. However, on closely scrutiny I have been obliged to make a few changes to make the offence operable.
The Private Members Bill would have allowed for universal jurisdiction. In other words, a person with no connections to this country could be prosecuted here for committing an offence any where else in the world. Such a provision would fall foul of our Constitution. Before we can exercise jurisdiction, there must be some connection, however slight, to this country. Therefore, for an offence of meeting a child, or travelling to meet a child, for the purpose of doing anything that would constitute a sexual offence, such activity would have to take place within the State or if outside the State, the person would have to be an Irish citizen or ordinarily resident here. This is a standard provision, similar to that in the Sexual Offences (Jurisdiction) Act 1996.
To commit an offence under the Private Members Bill a person would have to either meet the child or travel to meet the child. In other words, the person would have been intercepted before meeting the child. I agree with that. However, the wording in that Bill in section 3A (1) (b) which it proposed to insert into the 1998 Act assumed a meeting took place. It refers to doing or intending to do anything which would constitute sexual exploitation, either during or after the meeting. I have tidied up that aspect.
One other substantive point I have tidied up is to insert the word "sexual" into the definition of "sexual exploitation" at paragraph (c). Otherwise, the offence of sexual exploitation could be committed by a person who invited, induced or coerced the child to participate in any activity which is any type of offence under any enactment. I doubt if the drafters of the Bill intended that. I have also made some drafting and presentational changes which there is no need for me to dwell on.
I have read and heard some comments over the last few days to the effect that children have been left unprotected against the nefarious activities of sexual predators. Even leaving aside for a moment that section 6 of the 1993 Act is rarely if ever used to convict persons, there is no shortage of more serious offences which the Gardaí can use to charge persons. The Criminal Law restated the general law that any person who aids, abets, counsels or procures the commission of an indictable offence is liable to be indicted, tried and punished as a principal offender. The Sex Offenders Act, in its Schedule, makes it an offence to aid, abet, counsel, procure or incite the commission of an offence. The Schedule contains a comprehensive list of sexual offences against children including those created in the Criminal Law (Sexual Offences) Act 2006.
In addition, the definition of "child pornography" in the Child Trafficking and Pornography Act 1998 includes any visual representation or description of, or information relating to, a child that indicates or implies that the child is available to be used for the purpose of sexual exploitation irrespective of how or through what medium the representation, description or information has been produced, transmitted or conveyed. This provision was included specifically to criminalise paedophile networks passing information to one another over the internet, although it has wider application, about the availability of a child to be sexually abused. Transmitting that information would be deemed to be distributing child pornography and carries a maximum prison sentence of 14 years.
The 1998 Act also made it an offence to take, detain or restrict the personal liberty of a child for the purpose of his or her sexual exploitation, to use the child for such a purpose or to organise or knowingly facilitate such taking, detaining, restricting or use. This offence also carries a maximum prison sentence of 14 years.
I won't recite all the provisions in the Statute Book that protect children against sexual abuse and severely punish the abusers. It is enough for me to say that the Garda authorities have advised me that current criminal law contains a major series of offences punishable by very severe penalties for any person who, aids, abets, counsels or procures or attempts to commit a sexual offence against a child, who organises the use of a child for such purpose or who distributes such information about a child whether by internet, phone, text message or otherwise.
To sum up, this is a short Bill - essentially two issues are involved. I do not want to play down the importance of rectifying the regrettable omission in the 2006 Act; neither do I want to exaggerate the importance of a provision which, may seem significant, but which has not been used to convict any person over the last few years and probably beyond. Not to bring forward this Bill would leave a gap in the law. It has also proved to be an opportunity to introduce into Irish law an offence of meeting or travelling to meet a child following sexual grooming.
I commend the Bill to the House.