CHECK AGAINST DELIVERY
I am pleased to be here today to present to the House this very important piece of legislation.
I would like to commence by highlighting the purpose of this legislation. The primary purpose of this Bill is to close an existing loophole in the law. Under the Offences Against the State (Amendment) Act 1998 it is an offence to withhold information in respect of a serious criminal offence. However, that provision of the 1998 Act specifically excludes sexual offences. I am therefore bringing forward this Bill in order to ensure that there is an obligation on persons who have knowledge of all serious offences, including sexual offences against children or vulnerable adults to inform the Gardaí.
I think that the members of this House will be well aware of the content of published reports such as the Ryan Report, the Murphy Report and, more recently, the Cloyne Report. These Reports provide a litany of quite shocking revelations concerning the sexual abuse of children and failure to respond to that abuse. Members will also be aware of the further revelations over the last 10 days concerning Father Brendan Smyth. It is clear from these revelations and the various reports published that, if those who had knowledge in the past of sexual offences committed against children had informed the Gardai, many children who subsequently became the victims of abuse may have been protected from clerical sexual predators. I believe there is therefore a compelling argument for closing the current loophole in the law. As the Members of this House will also be aware, the full scale of abuse of children which has taken place in the past is still not fully known and new information is continuing to emerge. The problem is also not confined to offences against children. There have also been a number of equally serious cases of vulnerable adults in institutional care being subject to serious sexual and physical abuse. But in drafting the Bill I also have to be very mindful of the fact that the balance of evidence suggests that the majority of abuse of children or vulnerable adults takes place in the person’s own home. I think that it is therefore important to re-affirm that we are not just concerned with issues of sexual abuse by persons in authority, be they in the Catholic Church or in any other religious group, or institutional settings. It is important to state that the Bill applies to all persons and to all organisations and to all sectors of society. It is very important that we produce legislation that affords protection from abuse to children or vulnerable persons, in any scenario or in any location. That is what this Bill is about.
Members of this House have already been very supportive of this Bill when contributing to the consideration of the draft scheme of the Bill at the hearings by the Joint Oireachtas Committee on Justice, Defence and Equality. The Bill before you today has been drafted to include provisions to take account of the issues raised by the Joint Committee.
Under the provisions of this Bill, it will be an offence to fail to disclose to the Garda Síochána, without reasonable excuse, information concerning certain serious criminal offences where such offences are committed against a child or a vulnerable adult. These "serious offences" are listed in the schedules to the Bill. These offences all carry a penalty of imprisonment of 5 years or more. They include most sexual offences and offences such as assault causing harm, causing serious harm, cruelty to a child, abduction of a child, manslaughter and murder.
The Bill also establishes some limited defences for persons charged under the Bill for persons such as a parent or guardian or medical professional who is acting in the interests of the health and well-being of the child or vulnerable person.
I would like to outline for the House the key provisions contained in the Bill. Section 1 is a standard interpretation section which defines the terms used in the Bill. Section 2 creates the offence of withholding information on serious offences against children. I would draw the attention of this House to a number of key provisions in this section. Firstly, it is only an offence to withhold information where the person knows or believes that an offence has been committed and the person has information which he or she knows or believes might be of material assistance in securing the apprehension, prosecution or conviction of the offender. This means that a person is not under any obligation to inform the Gardaí regarding any kind of vague rumours, innuendo or suspicions. They only commit an offence if they have substantive information regarding an offence and fail, without reasonable excuse, to disclose that information to the Gardaí. This reflects similar offences contained in other Acts, such as the 1998 Offences Against the State (Amendment) Act.
I would also like to highlight the fact that subsection (2) of section 2 of the Bill provides that the Bill will only apply to information that a person receives or becomes aware of after the Bill becomes law. Following consultation with the Attorney General it was decided that it would not be feasible to make it an offence to withhold information where that information had been received before the Bill was enacted.
There are potential legal concerns in regard to making the Bill retrospective in regard to confidential information received prior to this law coming into force. There are also practical issues. I am mindful of the fact that most abuse happens within families and in many cases the facts of the abuse would be known by siblings or other family members who were not themselves the perpetrators. Making the law retrospective and applicable to information received by a family member, or to a person who provided support to a victim many years ago would in many instances be unjust. It would potentially criminalise individuals who had in good faith decided that it was not appropriate to report an offence to the Gardaí at the time that they became aware of it, but who would not be able to show that their decision meets the revised standard now required in this Bill. The new law will therefore apply to non disclosure of information received after the Bill is passed although it may relate to something that happened before enactment. This ensures that in regard to future actions, behaviours and responsibilities there is certainty and clarity in the law. Section 2 of the Bill also provides that the victim cannot themselves be guilty of any offence if they choose not to disclose the offence against them. This exclusion was welcomed during the consideration of the Bill by the Joint Oireachtas Committee. Subsection (3) of section 2 confirms that the victim of any offence covered by the Bill cannot be guilty of the offence of withholding information where they do not report the offence to the Gardaí. Subsection (4) of section 2 also provides that the Bill is without prejudice to any right or privilege that is recognised in law. In that regard I would like to state that this provision is simply to allow the courts to use their normal discretion in considering issues of privilege. There has been a lot of media comment suggesting that this Bill has an effect on the "seal of confession" or sacerdotal privilege. As is the position with regard to the 1998 Act, there are no defences in this legislation which would specially apply to information received in the confessional nor is there any specific provision with regard to the confessional. It will continue to be a matter for any court before which a person is prosecuted to determine whether any particular privilege exists or applies in the circumstances of any particular case.
It also must be borne in mind that existing provisions in the criminal law for the protection of children continue to apply. This includes section 176 of the Criminal Justice Act 2006 which makes it an offence for a person with authority or control over a child or abuser to intentionally or recklessly endanger a child by causing or permitting a child to be placed or left in a situation which creates a substantial risk to the child of being a victim of serious harm or sexual abuse. It is also an offence to fail to take reasonable steps to protect a child from such risk while knowing that a child is in such a situation. I think it is worth stating that the issue of sacerdotal privilege has never arisen with regard to the offences prescribed by the 2006 Act nor in relation to the offences in this Bill which are currently covered by the Offences Against the State (Amendment) Act 1998. It should be borne in mind that the issue of confession does not arise in regard to the many cases of criminal offences identified in the Ryan, Murphy or Cloyne Reports. These reports all relate to complaints of abuse made to the church authorities by the victims or by family members or by members of the public. Nor, as far we know, is it an issue with regard to the reprehensible activities of the late Father Brendan Smyth and many of the other priests who have during the past two decades been convicted and sentenced in this State for child abuse. I am sure that this House will be more informed in its discussions on this aspect of the Bill than certain sections of the media who in the context of this Bill have obsessed on this issue and largely ignored the substance of its provisions and the crucial role it will play not only in investigations into child abuse but also in child protection.
Moving to section 3 of the Bill, this section creates the offence of withholding information on certain offences against vulnerable adults. It has the same structure and provisions as apply in section 2 in regard to withholding information concerning offences against children.Section 4 of the Bill provides for a range of defences for persons who are acting in the interests of the health and welfare of the victim.
It is important to note that nothing in the Bill will impede any victim (or any other person) at any time going to the Gardai to report an offence. The defences in the Bill solely relate to circumstances where the victim chooses not to do this, or does not have the capacity to do this. The defences are also necessary to take account of the fact that many children or vulnerable persons who are victims of sexual abuse are at a very young age, and are often too traumatised by what has happened to them to be able to make an immediate report to the Gardaí.
As I have already mentioned, subsection (3) of sections 2 and 3 provides that the victim of any offence covered by the Bill cannot be guilty of the offence of withholding information where they do not report the offence to the Gardaí. It follows from this provision that a person who does not report an offence, at the request of the victim, also has a legitimate defence. This is set out in section 4 (1).
In submissions to the Joint Oireachtas Committee on Justice, Defence and Equality, reference was also made to the difficulty which arises where the victim does not have the capacity either to report the offence or to make a decision as to whether they want another person to report it on their behalf. As I have pointed out, many victims of abuse do not have the capacity to report offences against them owing to their age or some other vulnerability. Such victims should be able to rely on another person to act on their behalf. The Bill provides that where the victim does not have the capacity to form a view as to whether the commission of the offence should be disclosed to the Gardaí, and the offender is not a family member, then the parent or guardian can make known, on behalf of the victim, that the victim does not want the offence to be reported to the Gardaí. An important safeguard in this circumstance is that the parent or guardian concerned must have reasonable grounds for acting on behalf of the child or vulnerable adult and must show that in so doing, they are acting in the best interest of the child. They must also show that they had regards to the wishes of the child. These provisions are set out in subsections (2) to (7) of section 4.
Members will also note that there is a presumption in Section 4 (2) of the Bill that a child under 14 years of age does not have the capacity to decide themselves whether or not to report an offence. Members might wonder why this age has been chosen. It is important to state that a child of any age can, if they wish, choose to report an offence. Nothing in the Bill prevents that. The reference to the age of 14 in the Bill, is to allow the parent or guardian to act on behalf of the child, where the child is below that age limit.
The age of under 14 has been chosen because a child of 14 years or over is legally considered competent to give evidence on oath or affirmation, under the provisions of the Criminal Evidence Act 1992. Having considered the options, the Government agreed that under-14 is the most appropriate age. The law would be inconsistent if it allows a person of 14 years or over to give evidence under oath, but does not recognise them as having capacity to determine whether or not information in relation to an offence against them should be disclosed.
The Bill has to give separate consideration as to what provisions are appropriate if the victim does not have the capacity to report the offence, and the offender is a family member. In these circumstances it is considered that it is not appropriate for the parent or guardian to act on behalf of the child because of the potential conflict of loyalties within the family. The Bill therefore provides in subsection 8 of section 4 that in these circumstances, a designated healthcare professional who is providing services to the child or vulnerable person in respect of the harm or injury caused by the offence may make it known that in his or her view the information relating to that offence should not be disclosed, provided that he/she can show that he/she is acting for the purpose of protecting the health and welfare of the child. In making these provisions I am trying to ensure that the Bill will not discourage a victim from seeking appropriate treatment at a time when they are too traumatised by what has happened to go through the additional trauma of making a report to the Gardaí. It is therefore necessary that in cases where the victim is very severely traumatised that a medical professional who is treating them can decide that it is not in the interests of their health and welfare to report the offence at that time. It is important to note that the medical professional will still be under an obligation to notify the HSE of any abuse of a child under the Children First Guidelines which are to be placed on a statutory footing by the Children First Bill. The Draft Scheme of the Children First Bill has been published by my colleague Minister Frances Fitzgerald and is currently under consideration by the Joint Oireachtas Committee on Health and Children.
This separate obligation to notify the HSE contained in the Children First Bill is important to ensure that even where an offence is not reported to the Gardaí under this Bill, the victim must be given the appropriate supports, treatment, monitoring and protection. I anticipate that the number of cases where it is appropriate for a medical professional to decide on behalf of the victim that a report should not be made to the Gardaí in these circumstances will be limited in number. But in some of those cases where the victim is very severely affected by the offence, this provision will be vital in order to provide the most appropriate protection for the health and wellbeing of the victim.
This Bill also provides (in subsection 10 to Section 4) for persons providing counselling services to have similar defences to those available to a medical professional who is treating the victims. In submissions to the Oireachtas Committee a number of organisations which provide counselling and support services to victims of sexual abuse made the point that they often have to work with victims over an extended period of time before the victim can reach a decision whether or not to report an offence to the Gardaí. I am anxious that in such circumstances the victims are not discouraged from accessing supports which they need because of concerns that the seeking of such supports will immediately require a report of the crime to be made to the Gardaí for the purposes of a criminal investigation or subsequent prosecution. As with all of the defences in the Bill, the priority is to protect the health and welfare of the victim.Section 5 sets out the penalties for persons guilty of an offence under this Bill. It provides for penalties which vary from a class A fine and up to 12 months in prison, to a sentence of up to 10 years in prison, depending on the seriousness of the offence against a child or vulnerable adult regarding which information has been withheld. The 10 year penalty would apply in the most serious cases such as the withholding of information concerning the murder of a child. Section 6 provides for the amendment of the Offences Against the State (Amendment) Act 1998 in order to ensure that there is not any overlap or any duplication between the provisions of that Act and this Bill. Section 7 is a standard provision allowing the Minister to make orders prescribing any matters which require such a provision. Section 8 of the Bill is a standard provision providing for expenses. Section 9 is the short title and commencement provision. Schedule 1 of the Bill sets out in detail the offences against children which must be reported to the Gardaí. Schedule 2 of the Bill sets out in detail the offences against vulnerable persons which must be reported to the Gardaí.
The offences are being listed individually in order to provide complete clarity as regards to the type of offences that constitute "serious offences" which must be reported under the law.
The Members of this House will be aware that this Bill is one element of a suite of legislation to protect children and vulnerable persons to which the Government is committed. This Bill has been drafted to complement the operation of the upcoming Children First Bill and the National Vetting Bureau Bill. It might be helpful to the House if I elaborate further on how the Bill is to harmonise with the proposed Children First Bill, the scheme of which is currently under consideration by the Joint Oireachtas Committee on Health and Children. The Government is bringing these two separate and distinct measures in recognition of the very separate and distinct roles of the Garda Síochána and the HSE with regard to the protection of children and vulnerable persons -
Only the Gardai can investigate a criminal offence against a child or vulnerable person.
Only the HSE can provide the necessary supports and monitoring of children at risk.
This Bill addresses the role of the Garda Síochána. It requires that any person who has evidence that a person has committed a serious offence against a child or vulnerable person must provide the Gardaí with that information so that the Gardaí can investigate that alleged crime.
The Children First Bill will address the role of the HSE. It requires that relevant persons in a position to assess children at risk of abuse must provide the HSE with the information necessary to monitor and provide supports to a child who may have been abused. Any criminal investigation will be conducted in a parallel investigation by the Gardaí.
This Bill clearly states that it is in addition to and not in substitution for any other reporting requirements. This recognises that the requirement to report information to the Garda Síochána and the requirement to report information to the HSE are separate and distinct measures which are necessary to protect children and vulnerable persons.
I am also pleased to inform the House that I will shortly publish the Bill to place the vetting of persons working with children and vulnerable adults on a statutory basis. I expect to publish that Bill shortly.
I would like to thank the Members of this House who have already provided support for this Bill when contributing to the hearings by the Joint Oireachtas Committee on Justice, Defence and Equality. I am sure that the debate of the Bill in this House will be very informed and constructive.
I commend this Bill to the House.