Criminal Evidence Bill, 1992: Second Stage (Resumed).

Thursday, 5 March 1992

Dáil Éireann Debate
Vol. 416 No. 8

First Page Previous Page Page of 75 Next Page Last Page

Question again proposed: “That the Bill be now read a Second Time.”

Mr. Cotter: Information on William Cotter  Zoom on William Cotter  It is quite obvious from the discussions this morning and from all sorts of events which have occurred in the past seven or eight months that our criminal law must be good law, sustainable, [1684] supportable and effective. Recent statistics on the recorded indictable crime rate for 1991 show a very dramatic increase over previous years. The increase is the second highest since 1982, at 7.8 per cent. Obviously, we have grave cause for concern.

Therefore, it is in the interest of this House, and particularly in the interest of the Government, to indicate to the Irish people as soon as possible that they have the ability and the policies to bring this crime under control. I hope the new Minister for Justice will take the opportunity to give that indication as soon as possible because people are naturally very concerned that all sorts of crime at all levels in society are showing signs of being totally out of control.

I welcome the Bill in so far as it attempts to address certain difficulties which were obvious to all of us for some time in relation to court proceedings involving cases of child sexual abuse and white collar crime. I agree with the Minister that these problems need to be resolved as soon as possible. My party will be assisting the passage of this Bill through the House. However, we have certain serious concerns which we hope will be addressed by the Minister on Committee Stage.

I support Deputy Shatter's call for a special committee of the House to deal with Committee Stage, as our experience in dealing with the Recognition of Foreign Adoptions Bill, 1991, has been encouraging. This Bill is before us because there is general agreement that we have serious problems with the gathering of evidence and the conduct of proceedings involving child sexual abuse and serious fraud.

I welcome Part III, which seeks to make more effective criminal proceedings involving child sexual abuse, despite having some difficulties with its provisions. Child sexual abuse is a major social problem today and is recognised as being a time bomb which is waiting to explode. Experts say it will explode causing widespread crime and anarchy unless we take corrective action. This Bill [1685] attempts to do something in that direction.

Children of all ages are wandering the streets of this city every day out of the control of their parents. They are at risk from all sorts of human predators as well as being at risk of abuse. They are learning to be criminals. Children who are sexually abused can suffer the most awful emotional disturbance which, unless appropriate treatment is provided, leaves them as emotionally crippled adults unable to enjoy a normal existence.

Reports of allegations of child sexual abuse were a rarity until 1984. In that year 88 allegations were made to the health boards, and by 1991 the number had grown to 1,241, a huge increase by any standard. Is it the case that child sexual abuse is a new phenomenon? In fact, it is proved that that is not the case. Reporting of allegations is a new phenomenon because society has become more open and liberal. Experts agree that this form of abuse has always existed. Victims of abuse can make a full recovery if appropriate therapy and counselling is provided. The sad fact is that health boards are proving allegations but the victims are not getting therapy and counselling. How much of today's crime is committed by people who were sexually abused as children and who did not receive treatment? From time to time we read reports of cases when ten year old boys are rapists. We have had a recent experience of child rape which created unbelievable repercussions for our courts and our Constitution.

In the absence of empirical research we can only conjecture how many crimes are committed by people under such circumstances. Experts suggest it is fairly certain that a high percentage of crime committed today falls into that category and we have no option but to believe them. Thousands of children all over the country need but will not get treatment. Thousands of adults are suffering the shattering consequences of child abuse. Victims suffer grave identity problems, get involved in substance abuse and prostitution, cannot form satisfying adult relationships and tend to drift into lives [1686] of crime. Experts are agreed that child sexual abuse is self-sustaining, that yesterday's victim turns out to be today's abuser. Since the offspring of a victim can suffer a similar fate it has a multiplier effect. Much more needs to be done than putting legislation on the Statute Book. In that respect, the Minister should urge the Government to commission proper research to establish certain facts with regard to child sexual abuse. For example, we need to establish the causes of child sexual abuse in so far as what can be done and we need to establish also the historical and current incidence of the crime. That could be done by asking a social science faculty at one of the universities to undertake that kind of research or the ESRI could be asked to get involved in such research. It is essential that we do so becuse we must find out the dimensions of this problem. Only then can we begin to deal adequately with it.

The Minister should also urge the Government to set up, as a matter of urgency, validation and treatment centres in each health board area. Those facilities do not exist today and, indeed, Part III of this Bill needs that kind of support. The urgency of this action is twofold: to provide therapy and counselling for victims, which is most essential, and to provide the necessary basis for invoking Part III of the Bill.

The Minister will be aware that child psychiatrists are a rarity on this part of the island — six operated in the area of child care in 1990. The Minister will also be aware that the health boards do not have multi-disciplinary child care teams and, therefore, the proper investigation of allegations of child sexual abuse cannot be carried out at present satisfactorily and efficiently. It is important that the House be aware that Part III of this Bill is inoperable under present circumstances. The Minister should urge the Government to adopt the Child Care Act immediately, especially that Part of it which deals with giving the health boards various powers in relation to the welfare of children. If that Part of the Act were invoked the health board would have [1687] statutory duties in the area of child care which would assist greatly with the application of Part III of this Bill.

Sections 13 and 15 are vague and are likely to create great difficulty during the course of criminal proceedings. Section 13 provides that the court may in the interests of justice, allow cross-examination to be conducted through an intermediary. The Minister did not indicate who the intermediary would be or what qualifications are necessary. All we do know is that the court will appoint the intermediary who, in its opinion, is competent to act as such. Will the person appointed by the court be a teacher, a doctor, a child psychiatrist, a psychologist, or will it be a member of the legal profession who has been exposed to training in child psychology. We need that information because the operation of this Part of the Bill is crucial if it is to achieve what it sets out to achieve.

If section 13 is to have the desired effect which, I take it, is to elicit information from young children or persons who are mentally retarded in a setting which is amenable to the children concerned, the intermediary should have an incisive understanding of young children and mentally retarded persons and be experienced in dealing with them. He should also have a full understanding of court procedures and requirements in relation to the giving of evidence. I put it to the Minister that the courts will have great difficulty in finding people who have that set of skills.

Does the Minister propose, for example, to give legal training to specialists who work with children in order that they will be able to carry out that intermediary function or does he propose to give members of the legal profession training and practice in child psychology? It is difficult to see how section 13 will be effective and achieve its purpose unless we know what the Minister has in mind. He did not give us the benefit of his thinking on it during the course of his speech. He made no reference to how we will ensure that the intermediary [1688] appointed is competent to act as such. Will the Minister, for example, require the court to set up a panel of people with the appropriate mix of training and experience and further assist the court by providing training where required? We do not know the answer to this because the Minister did not say anything about it.

The provision in section 13 is a very important and necessary nuance in criminal law. Obviously, it is crucial that it works satisfactorily. The use of an intermediary is complicated by the fact that the child witness may well be traumatised and emotionally unstable. Therefore, we can appreciate the absolute necessity to have a person who has the best possible qualifications in child care and is conversant with legal procedures. At this point no one in this House knows how we are going to achieve this mix. Furthermore, counsel for the defence will find this procedure entirely frustrating.

Section 15 presents us with the same problems. It refers to video recording of a statement made by a person under 14 years of age during an interview with persons who in the opinion of the court were appropriately qualified for the purpose. Again, what type of person will be appropriately qualified and, more fundamentally, what will happen in a case where the person whose statement has been video recorded is not available for cross examination? Will this not be challenged by the defence as running contrary to the rights conferred on the accused person under the Constitution? This is a very serious matter and the Minister and his officials must examine it carefully. They should seek expert opinion to establish whether it is consistent with the Constitution. Deputy Shatter in his examination of the Bill played hard on this point also. It has to be cleared up. The same question mark hangs over section 13.

Cross examining a witness is a very precise practice which is governed by strict rules and regulations. Whereas we appreciate and support what the Bill is trying to achieve it would be sad if section 15 (b), for example, was found to be [1689] unconstitutional in its present form or inoperable during the course of criminal proceedings. I await the Minister's response to these important queries when he comes to sum up at the end of Second Stage.

During the course of the debate on Second Stage of the Criminal Justice (Forensic Evidence) Act, 1990, the then Minister stated that arrangements were being made for the provision of facilities for DNA fingerprinting. That statement was made quite some time ago. Yet, that Act is still lying dormant presumably because these facilities are not yet available. The question which arises is whether the same will happen in the case of Part III of this Bill. We are already faced with this problem in the case of the Child Care Act and the section to which I referred during the course of my speech is essential so that the health boards will have proper powers to deal with child abuse. Yet, it is lying dormant.

The Minister has promised that technical facilities will be installed in the Four Courts this year for the purposes of Part III of this Bill. I wonder if we can look forward with any confidence to this eventuality given that our experiences in the past have not been good. There is no point in producing legislation which has been demanded by Members of this House and the community at large and then not invoking that legislation. While it will assuage public opinion at the time it is not an effective way of governing the country and is self-defeating.

Part II of the Bill seeks to improve the effectiveness of the courts in prosecutions involving serious fraud. While it is unfair to generalise it seems that the number of people who are highly educated and ruthless and willing to use their considerable skills together with modern technology and methods to defraud others is increasing. That is self-evident at this time. With the development of banking and financial services there are ample opportunities for sophisticated crime of this kind. Our new financial services centre is an obvious example of where this type of crime can find a way of expressing itself. By its nature, it is [1690] very difficult to investigate and in the circumstances we are experiencing great difficulty in trying to protect personal and corporate rights.

The Government can be accused of being soft on what is called white collar crime. To date, for example, they have failed to take decisive action to deal with it. They have treated the fraud squad in a most inadequate fashion. They should not provide a panel of consultants comprised of members of the accounting and legal professions who can occasionally, when requested to do so, consult with the fraud squad. That is not the right way to go about dealing with this type of crime. The Garda Commissioner should have the authority and the resources necessary to employ experts of this nature on a full-time basis. Unless we do this we will not show the public at large and criminals that we are serious about tackling this type of crime. The fact that the Garda Commissioner cannot do this seems to suggest that the Government are halfhearted in their approach to serious fraud. My party have been urging the Government for a long time to set up a serious fraud squad under the control of the Garda Commissioner rather than under the control of the Attorney General or some other person and to give them all the necessary resources to tackle and defeat serious fraud. The Government have refused to do this but we expect and are confident that, given their present commitment, they will not be in a position to defeat serious fraud. It is my thesis therefore that the Government can be rightly accused of being soft on white collar crime. I hope, however, that this changes very quickly.

I would like to quote what the Director of Public Prosecutions, Mr. Barnes, said in a speech to the Irish Centre for Commercial Law Studies in February 1991 on this issue. He was speaking about the adequacy of the Irish criminal justice system in coping with fraud, particularly in regard to large and complicated cases. He said:

I have developed certain clear views based on my office's experience over [1691] the past 16 years as to the sufficiency of our present system in this area. That experience and those views lead me to contemplate the last decade of the century with considerable pessimism. Unless we adopt new and radical ideas and concepts, both in our laws and procedures, I fear that the new electronically controlled worlds of national and international banking, financial services, trade, commerce, customs, tariffs, subsidies and interventions, may rapidly become happy hunting grounds in which any reasonably sophisticated white collar criminal can roam at will, untroubled by any perturbation that his activities will be effectively checked or inhibited by the Irish criminal justice system.

I support that statement made in February 1991 and I am sure that if Mr. Barnes was speaking on the topic today he would say something similar because things have not really changed much in the meantime in regard to the provision of new legislation and a whole new approach to the concept of dealing with this kind of crime.

The Director of Public Prosecutions pointed out that the two most difficult crimes to deal with are those involving fraud and sex. It is interesting to note that this Bill tries to deal with both those very difficult areas. In his opinion the Garda need far more extensive powers to assist them in dealing with complicated and sophisticated cases involving serious fraud. In this respect he believes that the rule against self-incrimination — or as it is called, the right to silence — should be scrutinised. It is unusual that, under the Road Traffic Act, a person is obliged to provide what may prove to be an incriminating sample whereas a person suspected of defrauding millions of pounds has the right to remain silent lest he incriminates himself. That has been diluted somewhat in some circumstances over the past ten years but the Director of Public Prosecutions is of the opinion that the Garda do not have the power and authority to deal with this matter in an effective and efficient way.

[1692] Have the Minister and his officials examined the possibility of diminishing or abolishing the right to silence in the case of persons suspected of serious fraud? I know there is a body of opinion which would strongly object if the House decided to remove the right to silence but there would be general agreement among members of the public that it should be examined. In cases of serious fraud — God knows we have seen enough suggestions of it over the last eight months — the public would agree that the right to silence should at least be looked at. Have the Minister, the former Minister and officials of the Department of Justice looked at this matter and, if so, what have they decided? I hope the Minister will address this problem when he responds to Second Stage.

Part II of the Bill is welcome as it allows for the use of modern documentary evidence during criminal proceedings. However, it is certainly not earth shattering and is unlikely to frighten prospective serious fraudsters. I am not clear about all the powers the Garda have in trying to deal with these very serious matters. The public are dismayed at times, when it is clear there has been serious fraud, that the Director of Public Prosecutions does not bring a case before the courts. We can think of a large number of cases of that nature over the past few years and it does not instill public confidence in the Government. The whole business of dealing with serious fraud must be looked at because if members of the public do not have confidence in the system of justice, particularly in so far as it deals with people in important positions defrauding others of huge sums of money, how can they be expected to obey the law in their day-to-day living? You cannot, and maybe the increases in the incidence of indictable crimes in 1991 could be as a result of a total lack of confidence in the public mind in regard to the ability of Members of this House to control crime at the highest level. Certainly that is the feeling I get from members of the public, they ask why they should obey the law when the [1693] big guns can break it at will and get away with it.

As the Director of Public Prosecutions said, we must take a brand new look at the whole business of our investigations and prosecutions in relation to serious fraud, which would mean looking at the powers of the Garda. Do the Garda have power, for example, to require a person to provide documentation? Part II of the Bill refers to documentation being required as evidence, but can the Garda require a person to present certain documentation to them which may assist in proving whether a person is guilty? Have they the power to require a suspect to answer certain questions about the documentation? The 1985 Act is very weak in that area. The Garda are of the opinion that they do not have adequate powers in that regard. It has been proved that they do not have adequate powers and it is up to Members of this House to move quickly to try to provide them with such powers to deal adequately with this very difficult problem.

I am disappointed that the Minister is not here this morning; he was not present on Tuesday last when I spoke. I would have liked him to be here because other things need to be done apart from introducing legislation in the House.

Minister of State at the Department of Justice (Mr. O'Dea): Information on Willie O'Dea  Zoom on Willie O'Dea  I have taken note of what the Deputy said and I will convey his remarks to the Minister.

Mr. Cotter: Information on William Cotter  Zoom on William Cotter  There is general agreement that there is a relationship between the incidence of crime and poverty and poor circumstances in households. I have done research in that area and I am convinced that there is a very strong relationship between them.

The Government have not decided to date to adopt a pro-active approach to dealing with crime. While such a pro-active approach may entail a duplication of expenditure now it will lead to a decrease in crime in the years to come. The Government should consider setting up a system of family support in what I would describe as vulnerable areas, for [1694] example, housing estates where there is a large population. The centre piece of such a system of support should be preschool play groups in which there should be an involvement by the health board and the local community. This would be of tremendous benefit in that children would get a much better chance and any difficulties which may arise would be identified at an earlier age. I believe that many of the children who are roaming our streets at present, with no parental control, would not be doing this if such a system of support were in place. Parents would benefit enormously from support groups which could be formed around pre-school play groups.

I have been referring to the need for such a support system for a long period and some experts have said that it would be the right thing to do. Barnardos, the ISPCC and others are making valiant efforts in this area but they do not have adequate resources. Therefore, their efforts are not widespread enough. I hope the Minister will consider my suggestion. As I said, such a system would entail a duplication of expenditure at the outset. We are spending quite an amount of money at present on the provision of extra places for juvenile offenders and unless the Government decide to adopt a pro-active approach to this issue more and more expenditure will have to be spent in the future in dealing with this problem. The statistics on indictable crime, which show an increase of 7.8 per cent this year, could get out of control over a period of time as a result of the structures which exist in our society today. For example, there are approximately 300,000 people unemployed. Such factors militate towards a breakdown in society. While it is necessary to put legislation on the Statute Book it will only be effective if it is backed up by sensible, well thought out and well researched policies which will improve the position for people who live in poverty and are in poor circumstances for all sorts of reasons.

Miss M. Wallace: Information on Mary Wallace  Zoom on Mary Wallace  I support the Second Reading of the Bill. I congratulate the [1695] Minister on bringing this important Bill before the House at this time. This Bill is important in that it addresses a very real problem affecting the lives of many people. Sadly, this problem also affects the lives of many children. Because of my interest in this area, I will confine my remarks to Part III which deals with evidence in court in certain proceedings.

The rules of our courts and, in particular, jury courts developed over the centuries with many objects in mind. One of the main objects of our courts has been to protect the accused from conviction on the basis of tenuous or malicious evidence. It is right and proper that this should be the case. This protection has grown to be the basic safeguard upon which every citizen relies for a fair hearing when charged with wrongdoing. However, this being said, we must recognise that in some cases these rules, as they currently stand, can serve to frustrate justice rather than promote it and can cause very real harm to victims who have already suffered greatly in that due to some technicality their case is not dealt with in court in the way it should have been dealt with. I wish to refer to the circumstances under which children and those with a mental handicap give evidence in cases involving physical and sexual abuse. The rules of the court in such cases need to be changed. I believe most people recognise that. It is not acceptable that the full force of a traditional adversarial trial should be inflicted on people who run a high risk of suffering grave psychological trauma as a result. This is particularly evident in the case of children and people with a mental handicap who have to give evidence. I do not see how bringing a child before a court and forcing the child to endure an onslaught of detailed, intimate and nakedly hostile questioning can serve the cause of justice, particularly when, as is the case at present, the questioning is done by highly trained adults who wear 18th century clothing. It is most unfortunate that children and people with a mental handicap have to give evidence in [1696] such circumstances. I am pleased that the Bill deals with this aspect.

The increase in the number of children using the services of Childline have indicated to us all, if we needed any further proof, the extent to which child abuse is a problem in Ireland. I very much welcome the recent trend towards actively encouraging children to speak up about abuse. The number of children who have contacted Childline since they were established four years ago is astounding. It is good that these children are reaching out for help. However, we must remember that when a child who has been abused reaches out for help it is critically important to ensure that that child is protected under the present system. Every time a child is subject to the present system we are violating the trust they have placed in us, that is, the promise of protection offered to them when they stepped forward in the first instance. The Bill deals with the protection of the child in such cases.

As it stands, the system used in prosecuting these cases could be described at best as unjust and at worst as barbaric. I have no doubt that the low level of prosecution and conviction in child abuse cases, or cases involving people with a mental handicap is directly attributable to the manner in which the prosecution is carried out.

I welcome the provision which will remove the taking of child evidence away from court by the use of video links. This is a very positive step forward. In future, evidence can be taken from a child by a video link in a proper setting away from the courtroom, which can be frightening for a child. I also welcome the abolition of the requirement of face to face identification of the accused which for many children and mentally handicapped people must have been a very traumatic experience. I welcome the abolition of the wearing of wigs and gowns in such cases. I also welcome the use of competent persons to question witnesses in such cases.

Taken together, I believe these measures will go a long way towards removing the current psychological [1697] intimidation of children in such cases. I also welcome the proposals that contemporaneous accounts should be admitted in evidence. It is unreasonable to expect children and people with a mental handicap to retain a full and lucid account of upsetting events during the many months in which it takes to bring a case to court. The proposed admissibility of unsworn evidence from children under 14 years is also a positive step forward in that it recognises that children are capable of giving evidence which is every bit as reliable as evidence given by adults, even if it is not given with the same assurance or worldly wisdom.

I welcome the provision in section 27 which will remove the requirement that a child's unsworn evidence be corroborated. I also welcome the removal of the requirement that the jury be warned about convicting on a child's sworn but uncorroborated evidence. In our system of justice we rely heavily on the dedication of both the judge and jury in their assessment of the facts in each individual case. Therefore, we should not unduly prejudice them against the evidence of children in cases such as this.

I support the provisions in Part IV which deal with the competence and compellability of spouses and former spouses of accused persons to give evidence in certain cases. In the cases concerned, specifically those of violence against a spouse or violence or a sexual offence against any child, even a child of either spouse, it is frequently the spouse who is more likely to know about the crime. In many cases in the past a spouse may have been frightened of going to court. It is only right that these people be allowed and, if necessary, compelled to go to court to give evidence in such cases.

Part II dealing with the admissibility of certain documentary evidence is a technical yet necessary measure which one hopes will prevent ingenious barristers finding loopholes in this area. The public becomes rightly indignant when people escape justice on the basis of flimsy technicalities. I hope these measures will help to avoid the type of fiasco which arose [1698] recently in Britain concerning poll tax summonses.

I very much support the provisions in the Bill. I congratulate the Law Reform Commission on whose work this Bill is based. I would however ask the Minister to try to speed up the process by which reports and recommendations of the Commission are dealt with. We should not have to wait 18 months for the presentation of a Bill dealing with the evidence of children and mentally handicapped in assault and abuse cases. It is almost seven years since the commission reported on the issue of compellability of spouses to appear as witnesses. I ask the Minister to consider speeding up the process of reform especially concerning the abuse of children. I thank him for bringing forward the Bill.

I welcome the Minister's statement of last Sunday that he is considering the commission's recommendation that a crime of child sexual assault be created. I encourage him to bring forward the measure as soon as possible rather than waiting for the preparation of a full criminal justice Bill. In addition, it is vital that the Child Care Act, 1991, be brought into operation immediately. The last speaker referred to the more practical things that need to be done. In that context I welcome the Minister's statement in the House on Tuesday in which he said that work is under way to install in the courts the video equipment provided for in the Bill. This is a very necessary Bill which should receive a speedy passage through the House. I thank the Minister and those involved for bringing the Bill before us.

Mrs. Fennell: Information on Nuala Fennell  Zoom on Nuala Fennell  It is with some pleasure that I contribute to this debate because it refers to an area in which I have a specific interest. It is a good, simple and straightforward Bill which should make dramatic changes in the law of evidence. It takes account of modern communications technology in making computer printouts admissible in evidence. It enables the use of video recorded interviews and effects improvements in a number of other areas. As with other [1699] speakers, I would lay down a proviso. When debating Committee Stage of the Control of Dogs Bill yesterday we heard much about enabling provisions and passing laws. In this instance the provisions are very far-reaching and advanced and I make a plea that they be brought into operation immediately. The fact that the Bill is getting priority is one good development from the recent public debates on the 14-year old pregnant rape victim and the incest case which was dismissed in a south-eastern court last week.

I acknowledge the special and important role of the Law Reform Commission in making proposals and coming to conclusions in their work. They examined the whole area thoroughly and professionally. Their consultation paper on child sexual abuse of August 1989 and their report, No. 32, of 1990, were the basis for this legislation. Like the previous speaker, I regret the delay between the time of publication of the consultative document and the report and the bringing forward of the legislation. I question why we had to wait so long, particularly in an area of such critical need.

The documents I mentioned helped inform public opinion and the formation of policy and proposals for legislation. In their examination and consultation on this issue the Law Reform Commission continued the practice they started when examining proposals for rape legislation in that they held a one day seminar to which they invited interested groups. I attended both seminars. The seminar on child sexual abuse, held on 25 November 1989, was very useful and informative and the views expressed were taken into account by the Law Reform Commission.

Like other public representatives I have been involved over the years with constituents seeking help when such a crisis arose in the family. In 1983, before society had accepted the reality of child sexual abuse and began making provision for dealing with it, I received a report of such a case from a doctor and social workers in a midland town. It appears that in a family of five, two of the daughters had a low IQ, and the professionals [1700] involved suspected that incest was taking place. One daughter aged 17 years had had a baby and another was pregnant. These professionals were desperate but nothing could be done at local level because there was no machinery for investigation or intervention. I passed to the Department of Health the information with an appeal that the case be investigated but it took 18 months for the Department to reply, confirming that they could do nothing about it.

Thankfully things have changed since. No one can deny the incidence of child sexual abuse, but there are procedures to intervene and bring the abusers to court. As the number of incidents grow the horror of the crime grows. Every day we read in the papers accounts of fathers, uncles and friends grossly abusing small children. Such reports evoke great anger in decent people and frustration at the knowledge that only a small fraction of validated cases come before courts. The tragedy of those childrens' lost innocence and the legacy of often life-long trauma makes child sexual abuse the most heinous of crimes.

Before dealing with the details of the Bill I wish to ponder on the reasons some men commit these crimes—I accept that some women have committed the crime of child sexual abuse but in most cases it is committed by men. These men come from all walks of life and all income groups and are in positions of trust and power. They use small girls and boys as a sexual convenience. I believe that they are as low criminals as are men who wear balaclavas and wield guns. I want to know what decent men collectively have to say about this pattern of abuse by their sex. Can they understand the offenders' minds? Can they understand the offenders well enough even to help to find measures to prevent the abuse? Much as I have read and much as I have tried to understand the motivation of those who commit such crimes, there is obviously a gender barrier there and I cannot understand them. I ask that decent men, who must feel dreadful about this, would perhaps think about it a little more.

Recently a couple in my constituency [1701] contacted me about their ten year old daughter who had been abused by a neighbour. The man was a close friend and had gone on holidays with the family. Both families had regular access to the other's home and the children came and went with each family. The child disclosed the abuse to her parents whereupon the mother, in a very natural way, confronted the neighbour. Not only did the neighbour deny the charge, he promptly slapped a slander charge against her. In the meantime the parents went to the Garda. The child underwent tests for a week, after which two doctors confirmed that sexual abuse had taken place. However, the DPP could take no further action, the parents were told, because there was no evidence and there were no witnesses. The Garda already had reports that the man in question had exposed himself to other little girls.

The parents felt desperately frustrated and betrayed. They could not get confirmation that sexual abuse had taken place. Believe it or not, the information came to them only via the Dáil, by way of an answer to a parliamentary question that I tabled to the Minister for Health. The Minister told me that the health board had confirmed from their inquiries that sexual abuse had occurred. The parents found out from a reply to a parliamentary question that their child had been sexually abused. The case could not go to court under existing law, even though the child had disclosed who the abuser was. There were two reasons for that: first, the psychiatrist's evidence would not be accepted and, second, there were no witnesses. I am not sure whether their case will be improved with this Bill. I think that it will be.

Section 13 makes provision for interviewes to act as interpreters to get information from a child, so perhaps that is the measure that will help the child I have just mentioned. The Bill states that the interviews should be carried out by a competent person. I hope that the Minister will ensure that there are people trained and skilled in child psychology to perform that very important task.

I wonder why the Bill did not deal with [1702] the Law Reform Commission proposal to introduce a new offence of child sexual abuse or sexual exploitation. That measure would have enabled, for instance, a second charge to be laid in cases such as the Waterford incest case. A second charge would most likely have succeeded, given that the case brought as incest and under present law unable to be proven, fell. On Sunday the Minister said on radio that he was open to proposals to improve the Bill or to improve other legislation with regard to prosecution for child sexual abuse, so I ask him to reconsider this offence and indicate what he can do to quickly bring forward the required definition.

Another issue that is not covered in the Bill is mandatory reporting. I accept that it would probably be difficult to include mandatory reporting in this Bill. In the final report of the Law Reform Commission great prominence and much discussion was given to mandatory reporting. The House has to take away discretion and make it obligatory on professionals who are aware that there is a sexual abuse problem in connection with their charges to report that. Many teachers, doctors, and social workers are saying that over the years they have been able to pick out of a class the children who have been abused at home because those children display clear behavioural features but that they did not know what to do and were, I suppose, afraid that they would get themselves into trouble or might make a mistake in filing a report. If we are serious about detecting and doing something about the crime of child abuse then we have to take action and have every suspected case followed up. There would have to be a proper structure for investigation and follow-up procedures if we were to bring in mandatory reporting. All professionals would have to have assurances of protection. They would have to know that in the event of wrongful reporting they would be protected. As I said, perhaps the Bill is not the instrument for this measure, but mandatory reporting must be a part of realistic efforts to detect all of the child sexual abuse in our society.

[1703] I welcome section 21, which deals with one spouse being compelled to give evidence against the other, particularly in instances of child sexual abuse or domestic violence. In the future wives will be compellable witnesses. This provision is absolutely essential in the case of child sexual abuse. It is painful and distressing for a wife to have to go to the witness box in a charge against her husband and there might be many reasons for her not wanting to give evidence; but, in the interests of getting a conviction and presenting a whole case, this measure has to be provided.

It should also prove effective in obtaining more convictions for wife battering. However, I would like to know what will happen if a woman who is a victim of violence is threatened or intimidated by her husband before the case comes to trial. Will she get the necessary protection in advance of the court case? It has always been the case with many women who have been beaten that they go to the Garda, press charges and then when they go home their husband, if he is still at home, threatens her that he will take all kinds of actions if she goes forward to act as a witness. That has been a pattern over the years and I hope we will be able to do something about it if a wife is to be a compellable witness. Too many violent men have manipulated their wives to withdraw charges in the past for me to feel comfortable that the same will not happen after this change. I should like to know what security protection there will be for wives.

I am interested in the term in the Bill which refers to a former spouse, those words not being put in quotation marks. I do not know how one can be a former spouse in Ireland, because if a couple are married then they stay being husband and wife; that status cannot be changed. Perhaps a definition different from “former spouse” might be appropriate. I notice that in the Minister's speech that term is put in inverted commas.

In relation to section 25, I ask for a clear definition of right to privacy.

I have already mentioned the difficulties [1704] of parents in one case, but I wish to make the point that next to the child the parents are those who are most vulnerable. They are distressed, confused and hurt by the assault on their child, if that is by an outsider. Their needs must be considered all along the way. Their feelings must be taken into account. They need to support and help their child, mostly for the rest of her life or until she is into adulthood, and their role is crucial in the proceedings. I raise the case in question because I have been told that the first a couple knew of a court hearing involving their child was on reading an account of it in the paper the following day. They had not been informed in advance and felt very angry about that. Obviously the abuser had pleaded guilty. I am sure the intention of all concerned was to spare the parents the heartbreak and distress, but that is not what happened. They felt very cross and had wanted to be present at that court hearing.

Most parents want the facts of their child's case to be recorded. Of the cases that go to court the vast majority involve a plea of guilty. Therefore, the full story does not emerge, the child does not have to give evidence and all cases may receive the same treatment. Many parents feel there is a symbolic aspect to acknowledging the child's suffering. Indeed, in deciding on the sentence one would expect that the judge should have the full facts before him, including a professional diagnosis of the effects on the child.

That takes me to treatment facilities, in respect of which it is important to make the point that the very real need of abused children's parents to contribute to the rehabilitation of the children is rendered extremely difficult by the inadequacy of our therapy and counselling services. In Dublin this service ranges from patchy to poor. In some rural areas it is non-existent, with long waiting lists. That is not good enough. Let us be sure about this. When a family experience this dreadful trauma it is not something they can discuss over a cup of tea with their nextdoor neighbours. In fact, they will want to discuss it with very few people. [1705] It is not something that families want to spread far and wide; it is not in any way similar to a child having another type of accident. Parents do need professional help, counselling, in order to cope with the immediate after effects of this awful crisis in their family. Therefore, to place children, in particular, but also parents on a waiting list with very little hope of help is totally uncaring. I appeal that money and resources be invested in providing therapy facilities for parents and children.

Getting prosecutions and having sentences meted out are vital in these child abuse cases. So also are counselling and ongoing therapy to ensue that the long term effects, which can deeply scar a young person, are properly dealt with. We are not talking about a voluntary service, if we ever were, in circumstances in which people did not have to pay but took pot luck. We should not be talking about that any longer. We are talking about very skilled, highly sensitive work on the part of competent professionals. I know that costs money, but in these circumstances that money should be invested into the provision of this service.

I might comment on one part of the Bill where it is said that, when evidence is being taken on video, wigs and gowns should not be worn by the legal practitioners. There is very good reason for that suggestion. I would advocate that they be totally eliminated. I cannot see the point in some of the legal people who work in our courts getting dressed up in these ridiculous outfits more suitable to pantomime than the hearing of such cases. I would suggest that such apparel be eliminated for everybody's sake.

My principal concern and interest is with the child who is abused, in helping the parents and child to be rehabilitated. But of course I have concern for the offender as well, the men who by their acts place themselves so low on the level of criminality. What is being done for them? What can be done for them? Can they be rehabilitated and by what process? The Minister did not refer to them in the course of his remarks. I was disappointed that he did not give the House [1706] statistics of the current number of people in prison for sex abuses. I should like to have such statistics on our prison population as it stands at present in that respect.

I know that most people sentenced for child sexual abuse are located in Arbour Hill Prison. I know that if abusers do not receive appropriate treatment they are very likely to abuse again. They must be forced to confront the basic issue, the deep problem, which motivated their behaviour. Again that warrants a specialist, consistent programme of professional therapy. I know there was a counselling programme in operation in Arbour Hill Prison for these men which proved very successful and in which there was a great deal of interest, but that has ended. The probation officers involved in that programme have been transferred to other duties and have not been replaced. It is criminally irresponsible of the Minister to wash his hands of these men. For the sake of the men themselves they should have therapy; but, equally important, we should ensure that, when they are freed having served their sentences, they will not repeat their awful crimes. The only way we can go guarantee is to ensure that they receive professional therapy and are subjected to a proper programme of rehabilitation.

I might make some comment about another omission from the provisions of this Bill in that it affords me an opportunity to signal what still needs to be done. I refer to the need for barring and protection order provisions for this particular crime. We attempted to have that provision inserted in the Child Care Bill on Committee Stage without success. This is something on which the Law Reform Commission come down very heavily. I might quote from their Report on Child Sexual Abuse, at page 89, under the heading of “Barring Orders”, paragraph 28, which reads:

A barring order should be available in respect of any person who is or has been a member of the abused child's household or who, while not a member of the child's household, comes into [1707] regular contact with the child. Where a barring order is made in relation to a person who is not a parent or a sibling of the child, it should, save in exceptional circumstances, be made only in respect of the child's family home.

We must deal with the overall question of barring and protection orders for the child's sake. Indeed it should be possible that power be given to health boards to seek a barring order when they are aware that abuse is taking place. It is very difficult to understand how the authorities, in a very hard-faced way, can remove the child where there is a suspicion, an allegation or where child abuse is proven. The official approach is to remove the small child from its home, bedroom, familiar place, placing him or her somewhere for care, compounding the child's shock and stress. I have no doubt that there will be additional legislation introduced in this area. I appeal to the Government to seriously examine whether we could not introduce barring or protection order proceedings, so often recommended by the Law Reform Commission, in the interests of the child.

This Bill is a minimal, if important, measure in combating child abuse. Hopefully, it will lead to more convictions which, in turn, may act as a deterrent to those inclined to child sexual abuse. But a lot more needs to be done. For instance, there is need for greater public education about protecting children, which should include teachers, parents, child care workers and so on. We must remember that small children are the most vulnerable people in society worldwide. They cannot be their own advocates, they cannot help themselves and often do not know to whom they should turn for help. From what we have seen of the development of child sexual abuse as a crime in our society, it appears children no longer know whom they can trust. That is probably one of the most awful aspects of this crime, that adults who would have occupied or enjoyed a position of trust and dependency have betrayed that trust and dependency. They deserve our best [1708] efforts to help them. Small children deserve to have their lives made safe, comfortable and happy. We cannot always guarantee happiness but we should be able to guarantee their safety inside and outside of the family.

Mr. Jacob: Information on Joe Jacob  Zoom on Joe Jacob  I take this opportunity to wish the new Minister of State every success in his new position. Deputy O'Dea's elevation is long overdue. I have no doubt that he will grace with his presence the second level of Government.

I welcome this Bill which proposes to improve and reform the law in four important areas. I propose to use my time to comment on two areas, crime against tourists and physical or sexual abuse of children or mentally handicapped persons.

I welcome the provision which will contribute to the protection of tourists. A recent phenomenon called tourist-bashing is growing. Preying on visitors will simply have to be stamped out. Our fastest growing industry is tourism. Over the past few years great efforts have gone into the promotion and expansion of tourism which is growing at three times the average world growth rate. It has huge implications for job creation and the economic well-being of our country. Nothing should be allowed interfere with its progress, certainly not criminal types who see tourists as easy targets and who see themselves getting away scot-free with this sneaky, cowardly criminal activity.

Unlawful interference with tourists has been prevalent in our cities, particularly Dublin. More recently it has spread to other parts where tourists congregate. Wicklow is a typical example. Huge efforts are being made in Wicklow to promote and market this beautiful county and to provide a tourism product of the highest quality. The high amenity areas of Wicklow are being viewed by criminals as areas for easy pickings, areas such as Glendalough, the second most visited tourist attraction in Ireland, Brittas Bay, the Vale of Avoca, the town of Arklow and its hinterland, the beautiful Blessington [1709] Lakes in west Wicklow and Bray in the northern part of the county. Those visiting these places are vunerable. The Garda are making trojan efforts and have been successful in apprehending many offenders. However, the scale of the problem and the growing nature of it makes policing and apprehension extremely difficult, in some cases virtually impossible. We need a major deterrent. What the Minister has included in this Bill constitutes a major improvement and I compliment him on his efforts.

In addressing the subject of child sexual abuse I should like to focus on the way the law is applied. I am not a lawyer, but as a politician and public representative it is incumbent on me to look at its more human aspects. It is always a good idea to start with a little history. Child sexual abuse is very ancient and very recent. Although it always has been with us, it is only a few years ago that the issue of child sexual abuse as a social problem was raised in Ireland. The first formal examination of the subject came at a conference on incest organised by the Irish Association of Social Workers in 1983. In this respect, we were not so different from many other parts of the world who started to explore it just a few years earlier. The rediscovery of child sexual abuse was one of the hallmarks of the eighties. If one opens any Irish daily newspaper while the courts are in session one will find at lest one report of a case of child sexual abuse. The average reader could be forgiven for thinking that there has been a major explosion of the problem in recent years. While no evidence exists to back up the view that it is occurring more frequently than in the past, we know that more cases are being reported to the health boards and the Garda.

The first time the Department of Health took separate figures for child sexual abuse was in 1984 when only 33 cases were recorded. After that, there was a dramatic increase in the figures. In 1987, three years later, 456 cases were confirmed and in 1990 approximately 650 cases were confirmed. It is reckoned that [1710] another 40 per cent of reported cases remain unconfirmed. These facts in themselves do not mean that all is as it should be in either our criminal or civil courts. At regular intervals verdicts and/or sentences give cause for justified anger. Questions are raised as to whether victims should report such crimes at all when one sees the mess the system can on occasion make of these cases. The list of things that can go wrong is long. The case may not come to court at all leaving the victim feeling disbelieved. Informal estimates among child care professionals put the prosecution rate at perhaps as low as 10 per cent of all confirmed cases despite the hard work of the Garda and the fact that the identity of the alleged perpetrator is usually known. The Director of Public Prosecutions disputes that assertion.

The figures submitted to the Law Reform Commission suggest that the prosecution rate is much higher. One of the difficulties about preparing Department of Health and Garda figures is that they do not necessarily work from the same list of cases. If a case gets as far as a criminal court many calamities can ensue — everything from a severe cross-examination of a victim or witness to what is perceived as a very soft sentence for the culprit. The scope for being left with a sense of injustice is very great. Consequently, it is not uncommon for people to take the law into their own hands. Beatings, stabbings and arson are just some of the means relatives or associates of victims here have resorted to in recent years. That is fact. In one case from May of this year a court was told that a favourite uncle was stabbed 30 times by people seeking revenge for his abuse of the children. In a more recent case from October of this year a trial judge took into account the fact that an accused charged with the rape of a teenage girl had been administered some “summary justice” and suspended his six-year prison sentence. Reprehensible as such vigilante activities may be, at least they signal the depth of emotion involved and the reality that there are some things that cannot be restored.

[1711] The effects of child sexual abuse are not always apparent without close examination. The most worrying long term effect of this abuse may be what is called the “damaged goods” syndrome which impacts on a person's self-image and self-esteem, and may last for the lifetime of the unfortunate victim. This attacks a young person's psyche and spiritual side and its impact runs very deep. Here lies the source of the most intense confusion, rage and sadness. Anguish of this kind may not be extinguished even by a successful court case where the accused gets a severe sentence. One can therefore imagine the pain endured when it is perceived that the trial has been mishandled.

A young man who admitted to sexually abusing some of his much younger nieces came to trial just a few months ago but the parents of the abused children did not know the case was being heard. They and their children were mere witnesses as far as the court was concerned and were not required to attend because the accused had pleaded guilty. Before passing sentence the judge asked the prosecuting garda how the children were. The garda replied that they were receiving counselling and were “doing well”. The accused, who had been described as being of previously good character was given a suspended sentence. Reading the outcome of the case in the newspaper next day, the children's parents became very angry and distressed because they felt they had been needlessly excluded from a very important event concerning their children. If they had been there, the outcome might not have been any different but they at least would have felt that their voices had been heard. The most important voices of all, those of the abused children, were not heard either. Neither were the therapists providing the counselling for the children asked for up-to-date reports on their progress. It is very interesting to contrast this situation with that of the Tribunal of Inquiry into the Beef Industry where there were almost daily wrangles over whose voice was heard and whose was not. That is why this is such an important Bill. Up to [1712] the introduction of this Bill our laws and legal procedures have made it perfectly acceptable to summarily exclude and silence children.

It is also revealing to note the different ways in which such cases are dealt with under the European inquisitorial system. There, the adversarial nature of court proceedings is greatly modified and professional witnesses are called in to assess the credibility of the child witness in a much less hostile environment. The objective is to get as much pertinent information as possible about the case into the proceedings, whereas our adversarial system is for the most part about keeping information out. I am well aware that the inquisitorial system is a anathema to many legal practitioners in this country, some believing that it finds the defendant guilty until proven innocent. This is untrue but the system is not perfect. On the other hand, one could look at what our own sacred adversarial system has to offer.

When it comes to admitting evidence the adversarial system is fundamentally prejudicial to children. As recently as 1984 an English legal academic called Heydon wrote a well respected book on the law of evidence where he states that children are intrinsically unrealiable witnesses for a number of reasons: their memories are unreliable; they are egocentric; they are highly suggestible; they have difficulty distinguishing fact from fantasy; they make false allegations particularly of sexual assault; and they do not fully understand the duty to tell the truth in court. Each of these assumptions can be detected in the way our courts operate in relation to children's evidence. In many cases children are no less reliable than adults and in some cases they are perhaps more reliable. If adults were all that trustworthy perhaps we would not need perjury laws.

Perhaps it is not surprising in this context therfore that various extra legal steps are being taken to get even symbolic if not legal redress. The vigilante phenomenon that I mentioned earlier is one aspect of this. A more productive factor is the influence, especially in the United [1713] States, of phycho-drama in therapy where an abuser undergoing a course of treatment will be expected, for example after due preparation to literally go on his knees to beg his victim's forgiveness.

Since sexual abuse has very little to do with sex and a great deal to do with power — this is what the experts tell us — the challenge to a trial judge is to conduct the case in a way that can symbolise for the aggrieved parties that the power imbalance between abuser and victim has been rectified and that their hurt has been acknowledged. This is by no means an easy task within our present system but relatively simple changes would improve the position. For example, it would help victims if at some stage during the trial the accused had to account for himself in the witness box. This never happens where a guilty plea is entered which unfortunately is the case in the majority of Irish trials of sexual offences. While the accused has a right to confront the accuser, no right exists for the victim to confront the accused. This is supposed to be done by the State on behalf of all of society, who have been hurt and perhaps affronted by the crime.

Victims and their loved ones do not need to see the return of hanging and flogging to get emotional release from the legal process. However they need to see cases dealt with sensitively and they need to see atonement in some form. Apart from hearing the accused give an account of himself in the witness box it would help enormously to hear the outlining of a treatment plan for the abuser, particularly when one considers that most prosecutions are against offenders who plead guilty. An accused hoping to stay out of jail should be able to call to court a therapist who could explain his assessment of him and exactly what work was currently being done and would be done if he was given a non-custodial sentence. Not all therapy is alike and in this area some traditional, non-directive models can even be counter-productive as they fail to confront the key issues of abuse and victimisation. It is all too easy for an abuser to claim a miraculous cure and stop attending [1714] therapy sessions as soon as he gets his suspended sentence. What is more likely here however is not the outlining of a treatment plan but a mercy plea from defending counsel, often consisting of little more than a series of excuses for his client's behaviour, heavily laced with references to his tragic background or the fact that he had taken an excess of drink. He may even offer that his client ought to live or would choose to live in a different neighbourhood where he is not known. We hear this type of thing emanating from court cases every day of the week. Perhaps in reality such offenders would pose a lesser threat to children in an area where they are known rather than in some new environment where they could repeat the crime. Survivors of sexual abuse tend to be unimpressed by these heartrending pleas. They do not necessarily need to see a prison sentence handed down but they need to see the abuser atone in some way.

In the civil courts the position with regard to evidence is not as bad. The Bill before us is essentially about what happens in the criminal courts. The priority should be to endeavour to prevent abuse in the first place so that we do not have to deal with the criminal aspects later. The sooner we implement the Child Care Act the better. The focus in that Act is on promoting the welfare of children rather than providing a crisis service. I was privileged to be a member of the all-party committee which processed that legislation through Committee Stage. There were some excellent and committed people on that committee. I learned a lot about the whole area of child care from my colleagues and from studies which we made. I should like to see the Act in operation so that the benefits can percolate through the system. An example of what can be done is the child abuse prevention programme in the Eastern Health Board region. This programme should be extended to the rest of the country. It would save money in the long run by preventing damage to children.

I commend the Minister on bringing this Bill before the House so [1715] expeditiously. It is a sign of the commitment by the Taoiseach and the Government to making ours a more caring society.

Mr. Spring: Information on Dick Spring  Zoom on Dick Spring  I commend the Minister and the Minister of State on bringing forward this legislation in such a short time after their appointment. I wish them both well in the Department of Justice. There will be many testing moments for both the Ministers and the Ministers of State in that Department in coming months.

I welcome this Bill on a general basis. It is also important to acknowledge the work done by the Law Reform Commission in preparing and researching over many years the reports which have been published setting out the basis for this Bill. It is important that we as legislators ensure that the reports from the Law Reform Commission are not left gathering dust on shelves and are brought before this House at the earliest opportunity for discussion and comment, leading to the introduction of new legislation.

In commending the Bill I have a general reservation, not in relation to its provisions but in relation to its enforcement and effectiveness. I say that in the knowledge that many sections of the Children Act, which went through this House after many years of debate and constructive work in Committee, have not been brought into effect. It is an Act of major importance in updating the law in relation to children. There is little point in discussing and debating legislation if following its enactment nothing happens on the ground. The Opposition parties assist by means of constructive comment and argument in improving legislation and signals are given to the public that the Legislature is doing certain things in areas of difficulty. I detect great worry among many professional people in the health boards and other areas regarding the implementation of provisions of the Child Care Act. Many people reasonably assumed that the provisions of the Criminal Justice (Forensic Evidence) Act, 1990, were in effect and [1716] that we had updated the machinery necessary for various aspects of forensic testing. They will have been informed in recent days that we are still in the preparation mode. The bona fides of the Minister and the Minister of State will be judged in relation to this Bill when it actually takes effect.

There are many mechanical aspects of this Bill in terms of the infrastructure of court houses etc. I should like to feel that while the Bill is under discussion all aspects in relation to the improvement of court houses, video recordings and so on are effectively being organised. There is little point in the discussion ending, having created a level of expectation outside the House, if nothing happens in the immediate aftermath of the Bill's passage, which I believe will be speedy. The Bill is both timely and necessary.

The Bill addresses four major aspects of the law. We welcome anything that helps to bring to justice people who commit crimes against tourists, who are vulnerable and seen as soft targets, because those perpetrating crimes against them believe there is no possibility of being brought to justice. A very strong message must go out from this Chamber that such crimes will not be tolerated and will be brought to an abrupt end. The weight of justice will be brought to bear on those who commit crimes against tourists.

The admissability of business records is long overdue and very necessary, but some clarification may be needed on Committee Stage. I hope we will not create another industry where documents are prepared with the intention that they will be used in court some years hence. We will discuss that matter in greater detail on Committee Stage.

I welcome the compellability of spouses. The Minister has taken into account the most recent law in this respect and that is to be welcomed. The Law Reform Commission reported prior to the most recent case in the Court of Criminal Appeal, the People v. JT. Cognisance has been taken of that decision and of the unconstitutionality of [1717] certain aspects. That is an area of law which is in need of reform.

The aspect of this Bill which will receive most attention from the point of view of the public will be the area dealing with the giving of evidence by children and persons with a mental handicap in cases of physical or sexual abuse. While I welcome the direction the Minister has taken, I had hoped he would have taken a broader view in relation to the whole area of child sexual abuse. It is heartening that we are beginning to recognise the extent of the problems in this country. They touch on an area which we have been slow to recognise and acknowledge, as we have been in other areas in relation to morality, child sexual abuse or sexual abuse generally. I welcome the fact that we are setting out to address many aspects of very difficult problems in that area. I had hoped that the Minister and the Department would have gone for the generality of the subject where we could have looked at all aspects of the problems. Perhaps this has to be done in co-operation with other Departments, because it is not solely confined to the Department of Justice. I would have thought we should have looked at all aspects of the problem.

There is an urgent necessity for us to analyse and appreciate the causes of the alarming increase in the whole area of child sexual abuse. These have been documented in the recent debates which have taken place and in the figures published last week by Childline. Most normal healthy people must have been absolutely appalled by the scale of the problem which exists.

We need to look also at the question of prevention, the question of protection for those who are most vulnerable, deterrents and punishment all of which are interrelated. While we are about to address the question of evidence and the difficulties that have emerged in the laws of evidence as they have developed in our courts system, we may be focusing too narrowly on one aspect of a very difficult area. In that respect the Department of Justice may well have to look at the application of the law in its widest [1718] sense in relation to sexual offences and physical and sexual abuse of children or persons with mental handicap.

I can understand the desirability of reducing and trying to remove the courtroom drama from this area of law. The trappings of the legal profession — the wigs and gowns — which are normally considered to be the courtroom drama are being removed, and that is welcome. There are those who would argue that as we are heading into the 21st century we should remove ourselves from the Victorian wigs and gowns at any rate in relation to all our law. As one who wore a wig and gown for a period I have no objection because in this day and age they are quite bizarre.

In relation to enhancing the atmosphere in which children can give evidence, much remains to be done. We must keep in mind and give much consideration to the taking of evidence. This is an area in which the Minister and the Department will have to achieve a balance. I have no doubt that in due course the criminal lawyers in the Four Courts, or in the other buildings which will be used for the implementation of this legislation, will give this legislation fine combing because we are dealing with very fundamental aspects of law. In setting out to enhance and protect the rights of those who have suffered from very serious criminal, physical and sexual attack we will be touching on fundamental aspects of law in relation to the accused. In some respects there is a fine line about which the Minister will have to be extremely careful in crossing. Obviously the presumption of innocence is well enshrined in our criminal law system and any infringement of that will not be viewed lightly by our judges. On Committee Stage I hope we will have an opportunity for an exchange of views in this area. Obviously much research has taken place and many reports have been done in relation to this whole area and it impinges on this area of the legislation. I had hoped the Department would have taken the wider perspective, but this is a first stab at bringing our laws up to date in this whole area.

[1719] We have made major progress in facing up to the difficulties. Most Members of this House are now aware of the extent of the problems. I am sure there is no Member of this House who would not be wholeheartedly of the view that all of us — politicians, lawyers, professionals, social workers, the medical and other professions — must do our utmost to create the environment in which we can tackle this very serious problem. Perhaps the Minister would address this matter in his closing remarks on Second Stage or during the course of Committee Stage.

When examining the whole area of prevention, protection, deterrents and punishment we may need to broaden our approach at that stage because of the whole conduct of cases in relation to sexual abuse of children and the dissatisfaction that has been expressed on many occasions. We have heard case after case cited here where the Probation Act has been applied and where people give themselves to therapy or otherwise. We all know the litany of defences which are put forward and, whether we like it or not, many of these defences are legitimate in relation to the problems which people have which eventually manifest themselves in this most horrific of crimes.

If we are setting out to eliminate the incidence of physical and sexual abuse of children and persons with mental handicap, we must view it as a broader problem. I am worried that in the Bill we are only attempting to get to grips with it at the stage where we are in the courtroom. In that respect I would ask the Minister to go back a stage further to the whole environment in which these crimes manifest themselves. We may well need a whole new corpus of State infrastructure to deal with sexual offenders. As a consequence of this Bill the weight of justice may be brought to bear more easily and more readily on sexual offenders, and that is welcome.

We have to go back and look at the environment in which these crimes are committed. If the Bill succeeds, as I think it will 90 per cent of the time — we will [1720] offer some suggestions on Committee Stage to improve it — it will make justice more readily available and, in many respects, remove the trauma out of the court room. We have all read about the horrific trauma which the court room itself brings upon the victims of these crimes. The efforts being made in this legislation to avoid this are commendable and the Bill may well achieve what it sets out to do in this regard.

As other Deputies mentioned, suggestions have been made in regard to what should happen when the convicted criminal returns to society. It has been suggested that the person should be removed from the environment or move out of the locality but it has also been argued strongly that this may have worse consequences than if the accused remains in the environment where the difficulties are known. We should also address the question of whether provision should be made in this legislation for barring orders given that they are an effective method of prevention.

There is a need for education, understanding and openness in discussing these problems. There has been a reticence about discussing these problems in institutions such as this and among the community at large. There is a need for educators, teachers, social workers and the professionals involved in this area to be more forthcoming and assist legislators in getting to grips with what is perhaps one of the most serious and difficult areas of law.

Unfortunately, as anyone who reads the newspapers, even as late as today, would know, the trauma does not go away after the criminal has been punished. Research shows that the trauma and the effects of child sexual abuse last for many years, if not for a lifetime. That is another reason we have to address the generality rather than the narrow aspect of the trial. In many cases the severe traumatic effects and the physical and mental difficulties which occur for the offended persons may not manifest themselves for many years. In this respect it is extremely important that the services of the State are available ab initio for victims [1721] and that the individuals, and families affected — obviously in most cases it will be the families who will make decisions — have absolute confidence in the sensitivity, compassion and willingness of the machinery of the State to co-operate and assist, wherever possible.

The question of what should be done with persons who have been accused, indicated or convicted of crimes in this area should be addressed. I am not sure if an adequate amount of work has been done on what should happen after the court case. Obviously, they are two separate scenarios. While we must ensure that the machinery of the State caters for the person who has been abused and grievously offended and who is going to have problems we also must ensure that there are adequate deterrents within the criminal law system. The question of whether punishment is an effective deterrent or otherwise ought to be the subject of a wider debate. It is extremely important that we apply ourselves to the task of deciding what should happen the accused and convicted person after the court case. Will the Minister inform us if research work is being undertaken by either the Law Reform Commission or the Department of Justice on this issue because we will only be stabbing at this problem if we do not address that aspect also. I accept, however, that there might not be as many kudos for addressing that side of the problem as there will be for addressing the needs of children or persons who have been abused or physically assaulted in the first instance who should be our first priority.

The debate inside and outside this House on this issue will focus in the main on the giving of evidence by children and persons with a mental handicap in cases involving physical and sexual assault. I suggest that it will also be the subject of widespread debate among the professionals dealing with these problems at health board level and among the forces of law and order. Obviously, the rules of evidence will come into play once this Bill is passed but we have to be extremely careful. While the intentions are commendable, with the utmost integrity [1722] attached, ultimately, control in regard to the taking of evidence will lie in the hands of the man or woman on the bench.

The laws of evidence have evolved quite slowly during the years and in some respects we are attempting to speed up their evolution in this Bill. As we are all aware, in relation to the discussion on many aspects of evidence, the presumption of innocence, the question of proof and the cross-examination process, they are not going to change overnight. I am not sure if we can, as legislators, attempt to control the taking of evidence. Much criticism has emanated from the legal profession in regard to the objectivity of specialists in this area and this will present the Minister with a difficulty. Section 13 refers to the power to appoint intermediaries. We will have to tease out the powers we are going to give them. Are we talking here about trained specialists or lawyers who will become quasi lawyers for the purposes of a particular type of trial? This matter merits much discussion and teasing out on Committee Stage where I will ask the Minister and the Minister of State to clarify and elaborate on this aspect.

Section 13 states that the intermediary must be a person whom the court considers competent to perform this function. Are we going to set down guidelines in relation to whom we consider to be a competent person in relation to these cases? It is extremely important that we address the issue of the objectivity of specialists and the necessity to keep a balance.

Another area which will cause problems in implementation is the attempt to make the taking of evidence compatible with the stage of development of the child. It may be all very well to assume that we can change the method of examination and cross-examination of witnesses but these have developed over a period. Some people think that we should try to remove the confrontational aspect from these type of cases but that will not be easy in relation to the rights of the accused enshrined in our legal system.

I now come to the question of the freedom of expression of the witness. [1723] Obviously, much can be said for taking evidence in the aftermath of the crime, which must be commended, because instantaneous recall should be more reliable than trying to recall events many months later when the case comes to trial.

The area of the preparation of video-recording certainly needs to be examined in greater detail. The object and the intention are, unquestionably, correct but the taking of evidence by video recording and how we set up the structure in this regard are important. Do we want to have a certain level of clarity and performance in video recording? Will we make it clear that it is a new system of taking evidence and that it is taken as it comes, so to speak? These matters will have to be examined in greater detail on Committee Stage. I welcome this long overdue Bill but we are still dealing with technical areas of evidence which need clarification.

Section 17 deals with identification procedure and it will have to be teased out in greater detail because we are all aware of the unreliability of identity parades and the whole question of identification. I am worried about the presumption attributable in this section; obviously there are built-in safety mechanisms but the making of rebuttable presumptions in relation to the person so identified having to be the accused, could possibly infringe on the basic tenets of our laws of evidence.

I have little to add in relation to the other aspects of the Bill. Some clarification is obviously necessary and it would be worthwhile to consider the question of compelling spouses to give evidence. It is an area of law which has been in need of reform for some time. The first and prime area identified by the Minister in relation to physical and sexual abuse is obviously one which will warrant most attention on Committee Stage. I hope that the Minister will then at least spell out the parameters of the area of crimes of a sexual nature and crimes of physical abuse of children and persons with mental handicap. Unless we do that we are missing a particularly good and [1724] timely opportunity of addressing this problem at long last. I commend the Minister for Justice, Deputy Flynn, for introducing this Bill and taking on this matter. I do not doubt the abilities of the Minister of State, Deputy O'Dea, in this area as I know he has a very good understanding of law and the legal system.

I appeal for a more general approach on this question. While I welcome the Bill as a step in the right direction, the panoply of problems in this area must be addressed as it may be some time before we get another opportunity of improving the law. I appeal to the Minister to take an early opportunity of improving the law. I appeal to the Minister to take an early opportunity to outline to the House the more general response from the Department of Justice to a very difficult problem which I am glad we are addressing.

Mrs. Barnes: Information on Monica Barnes  Zoom on Monica Barnes  I join my colleagues on all sides of the House in welcoming this Bill, which involves fundamental changes to criminal law and is based on a tremendous sense of natural justice. It takes into consideration the fact that our present built-in procedures, which have been practised for so long, do not facilitate natural justice and indeed at times do not allow natural justice to emerge.

In introducing the Bill the Minister said that Article 40.2º of the Constitution obliges the State by its laws “to protect as best it may from unjust attack and in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.” In this Bill we are doing that, not just for the citizens of this State but for the citizens of other States who visit this country and who may be victims of crime. We have all collectively suffered embarrassment and shame when tourists have not met with the traditional hospitality of which we are very proud but indeed have been attacked and, in some cases, have died.

It is particularly appropriate to extend the provisions of this Bill to citizens outside this State, not just in regard to being proud of the way we treat visitors but as an extension in principle of our laws [1725] within the European dimension because we are reminded daily of the fact that we are not just an island isolated from what happens in the rest of Europe. What stood the test of time in regard to our traditional law based on precedents and procedures won through the courts and Constitution need to embrace the realities of today's life. This could be a positive element in relation to television linkage and communication and its use, but we must also consider the tragic aspect, that there is a level of violence within our society, particularly affecting vulnerable people. I regard sexual abuse of young people, people with a physical or mental disability, and vulnerable women, as the most heinous and unacceptable crime in our society. I welcome the provision which will enable a spouse to give evidence in certain cases. As we all know from certain cases, spouses who feel in conscience that they should give evidence, particularly in cases involving physical or sexual abuse of a family member, have been threatened and intimidated by their spouses.

One of the greatest protections we as legislators have is the availability of advice from legal practitioners both inside and outside this House who always rightly warn us, because of the implications of new law, of the dangers of drafting legislation which may be brought in with the best intentions but which, when tested, could work against the very principle for which it was introduced. Like Deputy Spring, I believe that the Minister for Justice, Deputy Flynn, must be particularly pleased to have introduced such a positive Bill. I should like to take this opportunity to congratulate the Minister of State, Deputy O'Dea, on his appointment. He is part of that legally esteemed group who always warn us of the dangers and implications of introducing legislation without taking all aspects into consideration.

I welcome this legislation as it will fundamentally change the thinking and practice which has existed in the area of law for many years. It is aimed at protecting the more vulnerable people in our [1726] society, people who may have been traumatised and damaged both physically and psychologically as a result of abuse. We need to give these people all the support necessary to enable them to make their case. We also need to ensure that all the support systems which will facilitate handicapped people in making their cases are put in place.

The Minister in his speech said:

At this point I should like to mention that arrangements are being made to have the necessary technical facilities installed in the Four Courts this year to enable evidence to be given there by live television link. The system will then be extended to a courthouse in the south and in the west of the country and will be further extended later in the light of experience. In the meantime provision is being made in section 16 to enable courts in areas without these facilities to transfer cases of this kind to areas which have them.

This is an example of the practical measures which are necessary to ensure that the legislation can be enforced after it is enacted. Like other Members of the House, I welcome the updating and refurbishing of courthouses, which will give greater comfort and space to victims and the people who accompany them. Like most of us, these people can be very intimidated by the formal procedures in courts. Proper facilities for victims should be provided in all courthouses as quickly as possible so as to ensure that people from rural areas are not dragged up to Dublin unnecessarily.

While I welcome the provision of proper facilities for victims in courthouses, I would put down a marker to the Minister that these facilities should be provided in as many courthouses as possible so that they will be available to people in their own regions. I wish to add my voice to the call — I know that practitioners in the area of law would be the first to support us in this — for rationalisation and refurbishment of our courts to be carried out as quickly as possible to provide space, privacy and comfort which victims of such cases are [1727] not merely entitled to but need. I should like to think that the Minister is committed to this.

If our courts are to be seen to treat people equally, all courthouses should have the same facilities and be modernised. This will ensure that people will not be frightened of attending them. I will not refer to this point any further as everyone in the House knows about the terrible conditions in some courthouses, where legal people have to carry out their briefings with clients in hallways, corridors, toilets and even on the footpaths outside the courthouse. In welcoming the Bill, I would point out that we need to take these aspects of the law into account as well.

The Minister said that the Bill would make admissible as evidence a video recording of an interview with qualified people, which very often takes place shortly after the alleged offence, provided that the alleged victim is available for cross-examination by the accused. This provision is vitally important, particularly in cases of child sexual abuse, as it will strengthen cases. Without such evidence a case might be weakened or put at risk. I very much welcome this provision. On Committee Stage I will discuss in more detail the need to ensure that the people who conduct interviews and the intermediary are properly qualified and that their roles are clearly defined.

I particularly welcome the abolition of the requirement that a child's unsworn evidence be corroborated and also the requirement that the jury be warned about conviction on a child's sworn but uncorroborated evidence. Many of us have struggled with a similar issue in another area. We welcomed very much the abolition of a similar provision from rape legislation. In the area of justice every support must be given to the victims, but also to the juries who must be objective in deciding a case based on the evidence presented to them and the parameters under which evidence is allowed to be given under this Bill. It is very important that evidence is not undermined by a [1728] judge being required to remind the jury that such evidence is uncorroborated.

In the areas of rape and sexual abuse the chances are that evidence will be uncorroborated is so far as most of those crimes are carried out in private and there is much guilt, secrecy and intimidation involved particularly in the case of child abuse. Up to now the victims of rape and child abuse were put in an unsustainable position in that the law provided that the judge had to warn the jury that the evidence was uncorroborated and therefore they had to be very careful. In these cases it is almost impossible for the evidence to be other than uncorroborated. That provision did a tremendous amount of psychological damage to the victims who were under great strain and reexperiencing much of the suffering they had already undergone. It was helpful to nobody and I welcome its abolition in this case, as I did the abolition of the similar provision in rape legislation.

Another important measure in this Bill is that which provides that a wife be obliged to give evidence for the purpose of prosecution if her husband is accused of violence or a sexual offence against a child. This is a fundamental change in the law in that it recognises the circumstances of wives of spouses who commit violent acts and ensure that justice prevails. If a crime of physical or sexual violence is committed within a family the wife as well as the children may be intimidated or physically threatened, and this measure provides that such a wife must give evidence against her husband.

Even more disturbing is the circumstance where, for whatever reason, a wife pretends that violence is not taking place. She may feel that loyalty to her husband and to the family unit precludes her from the responsibility of giving evidence against her husband. This measure safeguards the wife where acts of violence are committed against her. It is an extension of the provision in rape legislation, which has been universally welcomed by all fair minded men as well as by women; whereby rape can be established within marriage and a wife can take a case of marital rape against her husband. That [1729] was a tremendous breakthrough and provides great support for wives in circumstances where they are threatened by their husbands. This provision is a further example of that kind of support. It is absolutely essential that a wife should be obliged by law to give evidence in cases of violence, be it of a physical or psychological nature. The Minister pointed out that this provision will in no way interfere with the traditional right of a wife not to give evidence against her husband in other cases. I welcome this very fundamental change in the law which will ensure justice for spouses and children.

I am sure the Minister will remember the Child Care Bill under which we made provision to protect sexually abused children. Great emphasis was placed on the fact that it should be mandatory for teachers, social workers and other people working with young children who may be in a position to identify abuse to report these cases. As I have said, I welcome the similar provision in this Bill which obliges wives to give evidence against their husbands in cases of violence. In a small country such as Ireland, where many people know one another, an incredible burden is placed on teachers, social workers or friends of a family who report cases of abuse, considering that they have no legal responsibility to do so. This provision will allow people, particularly within small communities, to report such cases without the family taking offence or believing that it should not have been reported. Society must come to terms with the fact that every support must be given with regard to the reporting of physical and particularly sexual abuse against children. Very often children have to rely on the maturity, responsibility and attentiveness of adults to protect their rights as well as protecting them physically and emotionally. The more ways that we can build in support and protection for the people who do that, the better, and the better protection we offer our children.

The Minister mentioned that the Bill seeks to provide reasonable balance in relation to compelling a spouse to give evidence in certain cases, that it seeks to [1730] strike a reasonable balance between the interests of protecting the institution of marriage and protecting and vindicating the rights of spouses and children who are the victims of offences. It is very important that we do not allow a lack of balance in this regard. I have been concerned often by reports of some child sexual abuse cases, particularly within the family, usually the offender being the husband. Often a case has been made and, indeed, sometimes accepted, that because the husband and father is a good provider, because he does not also beat his wife and because it is felt that he is the breadwinner and will look after the rest of the unit, those qualities should ameliorate or reduce the enormity of the offence he has carried out against his child or children. As a society we could not possibly allow such a balance to be made in a judgment, that in some way such consideration would diminish the offence within a family. When we talk about a reasonable balance we must remember that retention of the family unit or the input of the breadwinner to the family unit in terms of income should not upset that balance in terms of the sentencing and treatment of the offending parent to the extent that it in any way diminishes the breadth and depth of the offence carried out.

I make a fervent plea that in this particularly difficult and sensitive area especially where children and people who do not have the competence to make a case for themselves are concerned we ensure not only the provision of the court facilities to give the support and comfort necessary but also that judges have first-class training in this area and have the level of sensitivity necessary to deal with such cases. In this regard, I am very aware, as we all are, that we are now introducing new legislation and judges are being confronted by cases of a kind they did not have to come to terms with until some time ago. We do need some kind of training to keep judges who are on the Bench at present up to date, something like the in-service training provided for teachers. In future there should be a requirement for adequate training in the [1731] area in question before people are appointed to the Bench. That is a good practice that is in existence in many other countries. Because of reaction to some of the horrific crimes with which judges are now confronted, because of new legislation being enacted and because of the emergence of crimes and offences that judges have not had to deal with until recently, there should be a form of briefing, seminars or in-service training that would inform and sensitise our judges. In no way do I wish to denigrate the Judiciary but all of us, in whatever position we find ourselves, whether as legislators, social workers or as part of a family within the community, find it very traumatic when we have to come to terms with crimes such as child sexual abuse. We all have such a natural reaction against those offences that skill is required to deal with them and overcome a feeling of revulsion. It is in that context that I argue for the provision of training for judges to enable them to cope adequately with such offences.

Section 13 (2) provides that in cases for which it is deemed essential or supportive an intermediary be appointed by the court and that such intermediary shall be a person who, in the opinion of the court, is competent to act in that role. I recognise the thrust of the Bill but perhaps the Minister would expand on that provision in response to the Second Stage debate. Certainly I hope that it will be teased out much more on Committee Stage. A very clear definition would be required to protect the rights of everyone concerned, particularly the intermediary. For instance, an intermediary who could operate at a highly skilled level in relation to the psychological aspect might be unprepared for the kind of cross-examination or other procedures that he or she had to undergo in court. The House will have to ensure that intermediaries would not be put into an invidious position when it came to the procedures and the hard practices of the courts.

Part II concerns an area in which the lack of protection for victims of certain crimes has scandalised people in the same [1732] way as many of us were scandalised by the realisation, arising from the outcome of a recent court case, that our legislation did not seen to be able to compel one spouse to give evidence against the other. That case went against the victim for that reason. People have also asked urgent questions of us, have asked that we explain why people in the business world who have been the victims of fraud and deliberate rip off have not been protected. They want to know why our legislation does not seem to provide for the kind of response from the courts that people should be able to expect.

In broadly welcoming this Part of the Bill, I appreciate that not only have we gone down the road of building in extra protections but it is recognised that there is a tremendous amount of business now conducted by way of computer and computer printouts. Indeed, it is a pleasure for us to note not alone their introduction but the acceptance of such modern facilities as television, video recordings and computer printouts as an essential component of evidence in court.

Debate adjourned.


Last Updated: 22/05/2011 19:21:02 First Page Previous Page Page of 75 Next Page Last Page