Posted on June 27, 2012 1:41 PM   |   Permanent Link   

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. This Bill is before the House 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 am certain that all members of the House agree, that the content of published reports such as the Ryan, Murphy and Cloyne Reports all provide what can only be described as a litany of profoundly shocking revelations that concern the sexual abuse of children. It is also particularly relevant to this Bill, that these reports also contain shocking revelations regarding the utterly disgraceful failure to report abuse to the authorities. The fact of all of these matters is 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.

What of the revelations contained in the Independent Child Death Review Group? It is clear that crimes against children are not confined to the Church - it is obvious that the State has failed children and vulnerable persons as well. We can also see cases - very serious cases - of vulnerable adults in institutional care being subject to awful sexual and physical abuse.

As political representatives, we have not, as a group, done enough to prevent these things from happening over the past decades. It is time that we did. Closing this loophole would be a start. All the revelations I have just referred to make it a compelling case that it be closed. There should be no arguments here, and I would like to see all sides of the House vote in support of this legislation, regardless of party affiliation. This is one area where party lines and ideologies should be put aside.

This Bill must also take into account a further unpleasant truth - 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. Despite the awful damage done to children and vulnerable persons at the hands of clerics, the State and institutions, it is important to re-affirm that we are not just concerned with issues of sexual abuse by persons in these entities. 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 legislation is produced that affords protection from abuse to children or vulnerable persons, in any scenario or in any location. That is what this Bill is about.

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.

Various sections of the Bill merit discussion.

Section 2 creates the offence of withholding information on serious offences against children, and there are a number of 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.

It is also worth pointing out 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. I understand that this was decided after consultation with the Attorney General, who came to the decision 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. While I can understand the point of view that anyone with any information should disclose it, no matter how old that information might be, I do feel that the Bill would be vulnerable to a constitutional challenge if there was to be a retrospective element to it. 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 and this is where there would be a risk of the Bill becomign vulnerable under the Constitution. 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. All of that said, I do welcome the fact that 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.

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.

In submissions to the Joint Oireachtas Committee on Justice, Defence and Equality, reference was made to the issue regarding victims of abuse being without 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.

I would also add that there is a presumption in subsections (2) of Section that a child under 14 years of age does not have the capacity to decide themselves whether or not to report an offence. 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. 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, the intent is 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.

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. As I said at the beginning of my speech, I consider it a crucial Bill and I again appeal to all sides of the House to support it. Our children and those vulnerable members of society have not been supported in legislation as they might have been treated over the last decades. Let us put our differences aside today and support them in legislation.