Wednesday, 28 June 2006
Dáil Eireann Debate
The Taoiseach: It is proposed to take No. 19, the Criminal Justice Bill 2004 — Report Stage (resumed) and Final Stage. It is proposed, notwithstanding anything in Standing Orders, that the Dáil shall sit later than 8.30 p.m. and business shall be interrupted not later than 10.30 p.m. The proceedings on the resumed Report and Final Stages of No. 19 shall, if not previously concluded, be brought to a conclusion at 10.30 p.m. by one question that shall be put from the Chair and that shall, in respect of amendments, include only those set down or accepted by the Minister for Justice, Equality and Law Reform. Private Members’ business shall be No. 31, Criminal Law (Home Defence) Bill 2006 — Second Stage (resumed) to conclude at 8.30 p.m.
An Ceann Comhairle: There are two proposals to be put to the House. Is the proposal for dealing with the late sitting agreed? Agreed. Is the proposal for dealing with No. 19, the conclusion of Report and Final Stages of the Criminal Justice Bill 2004, agreed?
Caoimhghín Ó Caoláin: It is not agreed. I cannot agree to the second proposal on guillotining Report and Final Stages of the Criminal Justice Bill at the conclusion of this evening’s business at 10.30 p.m. This is a regressive, disproportionate and unnecessary Bill, which is yet another attack on the civil liberties of the citizens of the State by the Minister for Justice, Equality and Law Reform. It is unacceptable.
Here we are in advance of a summer recess once again that is being used as the excuse for a guillotine to apply. This would curtail discussion on important amendments tabled by my colleague, Deputy Ó Snodaigh, and other Deputies. There should be no limit of time on the debate on the critical need for serious amendment of this legislation. The Bill as proposed should be withdrawn. If that is not to be, there should be no curtailment of time and we should be able to substantively address the matters concerned.
Mr. Rabbitte: This is not a satisfactory way to do our business. Of 417 amendments, 55 have been dealt with so far. On Committee Stage, there were more than 210 pages of amendments. The Bill bears no similarity to the legislation initially introduced.
My party is alarmed by the information given by the Taoiseach this morning. Given that this is the only criminal justice legislation before the House and we failed to get the information in the space of three weeks, we would like time to reflect on the implications of his casual announcement that there are 42 persons charged under section 1 of the 1935 Act, which was struck down. The implications are alarming. Previously, no one had the slightest indication that the number was anything of that order. One man has walked free, as charges were withdrawn for the rape of an under age girl. The Taoiseach tells the House as it is about to rise that there are 42 persons charged. Have those charges been withdrawn?
The Taoiseach: As I said, these issues can be opened. There are 42 cases before the courts under section 1. I informed the House that the CC case does not prevent the DPP from preparing charges of sexual assault, aggravated sexual assault or, in appropriate circumstances, rape. I understand that the Criminal Law (Rape) (Amendment) Act 1990 is being used to deal with those cases and other charges.
The Taoiseach: All cases under section 1 and some under section 2. The area I pointed out this morning relates to the other issue. There might be some cases under section 2, but we do not know the position on that section. There is an issue of honest belief. There are other issues as well. I did not get the chance to inform Deputy Rabbitte this morning but we are proposing a parliamentary committee which will call relevant persons as necessary. The key people — Government, Ministers and Opposition spokespersons — must use the time between now and the autumn to sit down and deal with some of the related issues. I am anxious to make progress on the establishment of the committee, which will be a small committee, to deal with the issues. We have done a lot of work in the past three or four weeks. Pending the final detailed case of the Supreme Court the issue should be addressed. The Government is anxious to set up a parliamentary committee to reach consensus on these issues and deal with them.
The situation cannot be left as it stands. The Supreme Court has made its judgment to strike down the Act and cases are pending on the other section of the Act, which will come up in due course. There is not an immediate difficulty because the cases in question are the subject of other charges. We should reflect on the position and not leave it for the whole summer. We will not have completed it by the end of September but we should try to do so as early as possible in the autumn. We are anxious to progress the matter as quickly as possible.
|Ahern, Bertie.||Ahern, Noel.|
|Andrews, Barry.||Ardagh, Seán.|
|Blaney, Niall.||Brady, Johnny.|
|Brady, Martin.||Brennan, Seamus.|
|Browne, John.||Callanan, Joe.|
|Carey, Pat.||Carty, John.|
|Cassidy, Donie.||Collins, Michael.|
|Cooper-Flynn, Beverley.||Cowen, Brian.|
|Cullen, Martin.||Curran, John.|
|Dempsey, Noel.||Dennehy, John.|
|Devins, Jimmy.||Ellis, John.|
|Fahey, Frank.||Finneran, Michael.|
|Fitzpatrick, Dermot.||Fleming, Seán.|
|Fox, Mildred.||Gallagher, Pat The Cope.|
|Glennon, Jim.||Grealish, Noel.|
|Harney, Mary.||Haughey, Seán.|
|Healy-Rae, Jackie.||Hoctor, Máire.|
|Jacob, Joe.||Kelleher, Billy.|
|Kelly, Peter.||Killeen, Tony.|
|Kitt, Tom.||Lenihan, Brian.|
|Lenihan, Conor.||McDowell, Michael.|
|McEllistrim, Thomas.||McGuinness, John.|
|Moloney, John.||Moynihan, Donal.|
|Moynihan, Michael.||Mulcahy, Michael.|
|Nolan, M.J..||Ó Fearghaíl, Seán.|
|O’Connor, Charlie.||O’Donnell, Liz.|
|O’Donoghue, John.||O’Flynn, Noel.|
|O’Keeffe, Ned.||O’Malley, Fiona.|
|O’Malley, Tim.||Parlon, Tom.|
|Power, Peter.||Power, Seán.|
|Sexton, Mae.||Smith, Brendan.|
|Smith, Michael.||Treacy, Noel.|
|Wallace, Dan.||Wallace, Mary.|
|Walsh, Joe.||Wilkinson, Ollie.|
|Allen, Bernard||Boyle, Dan.|
|Breen, James.||Broughan, Thomas P.|
|Connolly, Paudge.||Costello, Joe.|
|Crawford, Seymour.||Cuffe, Ciarán.|
|Deasy, John.||Deenihan, Jimmy.|
|Durkan, Bernard J.||English, Damien.|
|Ferris, Martin.||Gogarty, Paul.|
|Hayes, Tom.||Healy, Seamus.|
|Higgins, Joe.||Higgins, Michael D.|
|Hogan, Phil.||Howlin, Brendan.|
|Kehoe, Paul.||Kenny, Enda.|
|Lynch, Kathleen.||McCormack, Pádraic.|
|McEntee, Shane.||McGrath, Finian.|
|McGrath, Paul.||McHugh, Paddy.|
|McManus, Liz.||Mitchell, Olivia.|
|Murphy, Catherine.||Murphy, Gerard.|
|Naughten, Denis.||Ó Caoláin, Caoimhghín.|
|Ó Snodaigh, Aengus.||O’Dowd, Fergus.|
|O’Keeffe, Jim.||O’Sullivan, Jan.|
|Pattison, Seamus.||Perry, John.|
|Quinn, Ruairí.||Rabbitte, Pat.|
|Ryan, Eamon.||Ryan, Seán.|
|Sargent, Trevor.||Sherlock, Joe.|
|Stagg, Emmet.||Stanton, David.|
|Twomey, Liam.||Upton, Mary.|
Mr. Kenny: I am very perturbed by the information given by the Taoiseach this morning in respect of the 42 cases pending under section 1(1) and 12 cases pending under section 2(1) of the 1935 Act. That is a total of 54 cases. On seven different occasions in the House, we asked for this information but it was not provided. It was only when Deputy Rabbitte and myself wrote to the Director of Public Prosecutions that the Taoiseach came into the House today and gave us this information. This is of the utmost seriousness.
Based on what the Taoiseach said this morning, how many of these 54 cases have had charges against them dropped since 23 May because section 1(1) and section 2(1) of the 1935 Act are no longer in force? How many cases, in which these charges have been dropped, have had other charges brought against them? The sense of outrage palpable throughout the country in the past month will surface again because this is truly extraordinary. Why was the Taoiseach not able to provide this information on seven different occasions in the past?
Mr. Kenny: If the Taoiseach has the information to hand, will he tell us how many of these 54 cases have had charges against them dropped and have had no other charges brought against them? It will be a really controversial issue if charges have been dropped and no others have been brought against them.
An Ceann Comhairle: This issue was raised earlier this morning and the Chair ruled it out of order on the question of the vote. We do not want to get into a debate on it now. The Deputy may make a brief comment.
Mr. Rabbitte: That is very interesting. Having failed to get this information from the Taoiseach over the past number of weeks, and following our letter to the DPP, he gave me this information in the second bite of Leaders’ Questions this morning when I could not respond. When the Taoiseach said other charges will be proffered against the 42 persons, surely it is beyond the bounds of probability that in each of the 42 cases other charges will be proffered. Is the Taoiseach saying, in respect of the 42 cases which is far in excess of anything we had anticipated up to now, that in all those cases, other charges will be proffered? In respect of the cases under section 2, is he saying there is less probability of a different charge being proffered?
When was the Taoiseach first alerted to this information which we have been seeking to extract since the crisis broke? The prospect that people charged under section 1(1) of the 1935 Act are unlikely to come to trial, and that it is dependent on other charges in the indictment, will cause alarm. Since I raised the matter this morning, has the Government or the relevant Department considered whether a motion will be brought before the House to establish the all-party committee on an appropriate basis? Are we just engaged in head-hunting to assist the Government in resolving a conflict very significantly of its own making? Will that committee have any statutory basis and will a motion be brought before the House?
The Taoiseach: I dealt with these matters earlier today. I received the information yesterday and I thought it would be useful to provide it to the House. Deputy Kenny wrote a letter to me, to which I hope to reply today giving the full information.
I have already said three times this morning but will reiterate that we are talking about a parliamentary committee to deal with the issues with which we need to deal in these cases. The Government will put forward its most senior people. I asked that the Opposition spokespersons would put forward their justice spokespersons, or relevant senior Members, so we can deal with these important issues.
With regard to the substance of the issues, I will outline my view to help the debate. Deputy Kenny wrote to me with regard to the issue of statutory rape under sections 1 and 2. I will treat the sections separately. I have already referred to and dealt with what I consider to be the most important issue for us to deal with, namely, the defence of honest belief.
On section 1, there are those who have been convicted before the courts of statutory rape and those in respect of whom prosecutions are pending. As the House is aware, the Supreme Court in the CC case struck down as unconstitutional section 1(1) of the Criminal Law Amendment Act 1935. In addition, the Supreme Court in the A case ensured that Mr. A, who had been convicted of such an offence, remained behind bars. We await the reasoned judgment of the Supreme Court in the A case to determine its full implications and its ambit.
There are at present 16 persons in custody having been convicted of an offence under section 1 of the 1935 Act. This cohort of persons are those who are likely to be directly affected by the decision of the Supreme Court in the A case. There are at present 42 persons on charges before the courts under section 1 of the 1935 Act. The CC case does not prevent the DPP from preferring charges of sexual assault or aggravated sexual assault and a rape charge. These offences carry a severe sentence of imprisonment. Our law provides that such charges can be added to existing charges on indictments against accused persons.
I emphasise that the underlying conduct that amounts to unlawful carnal knowledge under section 1 of the 1935 Act by definition also constitutes the offence of sexual assault and-or aggravated sexual assault. I cannot at this stage explore the factual details of these cases as it would not be appropriate. Any comment on individual cases would constitute prejudicial publicity and could result in a trial being stopped. The DPP is not by virtue of the CC case prevented from proceeding to prefer charges of sexual assault and-or aggravated sexual assault and-or, in appropriate circumstances, rape.
Section 2 of the 1935 Act has not been declared unconstitutional. While that section has been challenged, it remains on the Statute Book. The State will defend these proceedings. Three persons have been convicted of an offence under section 2 of the 1935 Act and no other offence. A total of 12 persons have been charged but not yet tried under this section. I understand the offence of rape, depending upon the factual circumstances, can be preferred. The DPP is not prevented by the CC case from making such a charge.
I cannot at this stage explore the factual details of these cases as it would not be appropriate to do so. I do not want to make any remarks that might constitute prejudicial publicity and result in the trials of accused persons collapsing. They are before the courts. It is for the DPP to make his decision on a case-by-case basis as to what, if any, substitute or additional charges should be preferred. Moreover, given that the issue of constitutionality is before the High Court, it is not proper to comment further on this cohort of cases. We will continue to review all of our legal options in regard to charges under the 1935 Act and await the Supreme Court judgment to assist us in coming to a conclusion in that regard. That deals, as far as is possible, with sections 1 and 2.
The reason I wanted the committee formed and wanted its work to take place in the summer is connected to the third point I made this morning, which concerned the defence of honest belief or mistake. It is as a result of the decision of the Supreme Court in the CC case that we have had to create a defence of honest belief. At no stage since the Law Reform Commission recommendation on the creation of such a defence has any Government or this House entertained the notion of creating such a defence. The reason for this is obvious. It creates a real and extra burden for the victim of unlawful carnal knowledge. It means the victim can be subject to rigorous cross-examination by counsel for an accused who, it may transpire, is a sexual predator.
The idea of 11 or 12 year old girls being grilled in a witness box as to their make-up, perfume, style of dress and the manner in which they comported themselves will undermine the effectiveness of prosecutions for unlawful carnal knowledge. Many parents and most citizens will be horrified at the prospect of girls of perhaps 11 or 12 years being subject to cross-examination. In those circumstances, I wonder whether the existence of the prospect of such cross-examination by experienced counsel will have a chilling effect on such prosecutions. One can look at the new trial process as almost amounting to an 11 or 12 year old being put on trial, which is unacceptable.
We have amended our law as required by the CC case. However, we need to have a hard look at the issue. Does any Member of this House want to subject a young girl, who has already been the victim of sexual abuse, to the trauma of a gruelling cross-examination about her appearance and the impression she created about herself, her maturity and her age? I hope that in the spirt of co-operation the Oireachtas committee will address the full implications of the CC case decision and the new law, and whether the worst effects of the honest belief defence can be mitigated in any way and if so, how. It is therefore important the terms of reference of the Oireachtas committee, which I put before the House today, are urgently agreed. The committee must address all the issues, including the sensitive issue of young girls of perhaps 11 or 12 years of age being cross-examined. I have also stated that some of the issues that have been raised with regard to the amendments concerning children, and other issues, should be considered.
The Government proposes that we set up a parliamentary committee next week and that it works over the summer and into the autumn to try to complete these issues. The whole House can then come to a judgment on the issues.
Does the Taoiseach have the information to hand as to the number of cases, among the 54, the 42 and the 12 cases where charges were brought in respect of sections 1(1) and 2(1), which are no longer relevant or have been dropped? If the DPP does not bring another charge against those persons, will they walk free? Is that the implication of the Taoiseach’s remarks?
The Taoiseach: I stated that other charges can be brought in those cases. I do not believe there is a difficulty in this regard. It is ultimately a matter for the DPP. I do not want to give the impression that I have influence over these cases but my understanding is that in these cases, the DPP has an option of preferring other charges. That will probably happen under Criminal Law (Rape) (Amendment) Act 1990.
Mr. Rabbitte: The issue is not whether the Opposition is as concerned to urgently address this issue as the Government. That is not in doubt. The Taoiseach read out a long, prepared script about young girls being subjected to cross-examination. That is the very stipulation that is put into the legislation his Government enacted and he is reading back to us the criticisms we made of it at the time. We accept that territory, as is already well established, so there is no point trying to allocate responsibility for what has transpired to this side of the House.
Let us leave out the section 2 charges for the moment because, as the Taoiseach indicated, there may be a risk of saying something which might be damaging to the prospects of somebody being brought to justice, although the possibility of section 2 being declared constitutionally infirm is also very high, as the Taoiseach is aware. To return to the category consisting of 16 cases to which the Taoiseach referred, is the Taoiseach alerting the House and the country to the prospect of all or some of the 16 individuals in question walking free? Is that the distinction he is drawing? He seems to be seeking to equate unlawful carnal knowledge with sexual assault. These are two different offences. Are alternative charges being pressed? In cases where charges were originally brought under section 1 of the 1935 Act do the indictments also contain other charges or can other charges be validly pressed in each or all of the cases in question? I am still unclear on this matter from the answer the Taoiseach provided.
Mr. Sargent: I listened to the Taoiseach’s long, prepared script which forms part of this debate. May we conclude from his statement that if section 2 is found to be unconstitutional, a referendum will be held on the issue of statutory rape at the end of the process? Is he focused on resolving the matter without resort to a referendum or is he open to the possibility that one might arise?
Caoimhghín Ó Caoláin: When does the Taoiseach intend that the work of the all-party committee will get under way? He referred earlier to the summer period. We do not have a firm proposal for a meeting to launch the committee’s deliberations. When is it intended to hold such a meeting? Is this issue running loose or can the Taoiseach firm it down and indicate to the House when he intends that work will commence?
While I very well recognise Deputy Rabbitte’s point on the distinction between sexual assault and the key focus on the cases which have given rise to this discussion, nevertheless, we cannot divorce ourselves from the responsibility to address the deficiencies in sexual assault treatment centres, which were highlighted last week with the publication of a further report and on which I had an exchange with the Taoiseach. When will the Government take its responsibilities seriously and properly resource the sexual assault treatment centres throughout this jurisdiction, including the roll-out of the additional treatment centres promised?
The Taoiseach: I do not have much to add to what I have said. The view is that these cases are in various processes and I have been advised not to say anything about cases that are before the courts. The 16 cases about which Deputy Rabbitte asked relate to individuals who are in custody having been convicted of an offence under section 1 of the 1935 Act. Issues arise regarding how these cases will be resolved but it is hoped that problems will not arise in any of the cases.
The Taoiseach: I do not have the details of proceedings in individual court cases. This information was requested over a number of weeks and I sought the information and correctly brought it to the attention of the House. The point is that in most of, if not all, these cases other charges can be put and the matter is being carefully looked at by the Minister, the Director of Public Prosecutions and the Attorney General. Perhaps that will avoid all the problems and difficulties arising out of the Supreme Court’s decision, which it was its right to make.
I have been dealing with many issues arising from this matter in recent weeks. It would be better to deal with these issues in a parliamentary committee over the summer. Issues about constitutional referendums, strengthening the Act and so on can be dealt with in a committee, for which I gave the terms of reference today. While we do not have short-term difficulties with these issues, we should not leave them. The Supreme Court has made the decision to strike down a very important Act, which was the main legislation used until recently by the DPP in taking prosecutions against those involved in these types of cases. While we do not have any short-term difficulties, we should not leave the issue.
We will move a motion on an all-party committee which will be discussed at the Whips’ meeting tonight. I ask for the co-operation of the key people to deal with this issue. Those who have followed this matter, have been involved in it and have a good grasp of it — I am not saying everybody does not have a good grasp of it — can deal with this issue over the summer and into the autumn. I believe this is necessary in the case I outlined. It would be appalling to have children cross-examined in these cases. That is a nonsense and an outcome of the case with which we will have to deal.
Deputy Rabbitte should note that I am not suggesting that this matter is the fault of members of the Opposition. It is a follow-on from the Supreme Court judgment. We must now deal with it and should get on with doing so.
An Ceann Comhairle: Before the debate on the Criminal Justice Bill 2004 concluded, we were dealing with amendment No. 57, which is being taken with amendments Nos. 58 and 59, and Deputy Ó Snodaigh was in possession.
An Ceann Comhairle: Questions may be asked at the discretion of the Chair. The Chair must take account of the vote that has just taken place as it indicated that Deputies want more time to debate the Criminal Justice Bill.
Ms McManus: There is no more important issue than that the Government intends to introduce a Bill which will remove the rights of hepatitis C victims who were given entitlements by a previous Government.
An Ceann Comhairle: If the Deputy is not happy with the Chair’s ruling, he should raise the matter at this evening’s meeting of the Committee on Procedure and Privileges. He is wasting the time of the House. Deputies have already indicated that they want to discuss as many amendments as possible on the Criminal Justice Bill.
An Ceann Comhairle: The Chair ruled the Deputy out of order when he asked his question on the proposal to put before the House. The Deputy kept going on and the Taoiseach answered him. The Chair ruled as the Chair always rules.
Mr. Kehoe: On a point of order and to end this row, could the Ceann Comhairle allow ten to 15 minutes for the Order of Business if a number of Deputies ask to raise important issues, whether on hepatitis B or any other matter?
An Ceann Comhairle: The Chair has ruled. We have already gone on to 12.40 p.m. and the Chair must take account of the fact that Members want to move on to the Criminal Justice Bill. Tomorrow morning the Chair will hear the Order of Business.
Ms Lynch: Would the Chair at least allow the Taoiseach to express an opinion on this? Will this turn out another piece of disastrous legislation, like the one we have just dealt with? Women out there are suffering and will now be removed from the system if this legislation goes through, slipped in at the last minute by an uncaring Minister for Health and Children.
An Ceann Comhairle: I will allow the Taoiseach to answer when the legislation will come before the House but we cannot debate it. We have already had a debate that was totally out or order. It is an indication that if the Chair facilitates Members of this House, if they get an inch they want a mile. I ask the Deputy to resume her seat.
Mr. Durkan: On a further point of order, would it not be advisable and better for the running of the House to allow matters of promised legislation to be dealt with in the normal way? The Taoiseach has no objection.
Ms Lynch: The Ceann Comhairle remembers, as does everybody, the haranguing this Government gave the then Government when this was first introduced and it will undo what was done then after months and years of negotiation. These women will suffer as a result.
Mr. Stagg: On a point of order, we will continue until the Chair allows the question to be raised. In the interests of addressing the other business before the House, I ask that the Chair allow the question to be raised and answered. It would have taken less time than that which has been wasted by the Chair’s intransigent and new position.
Mr. J. O’Keeffe: In the interests of order in the House I suggest that by common consent the Government and Opposition could agree to a ten-minute period for the Order of Business. I appreciate the Ceann Comhairle’s position and this would get him off the hook.
Ms McManus: I will ask the Taoiseach the question if the Ceann Comhairle will allow me to. The problem is that there are provisions in this Bill that will take away entitlements that people who have hepatitis C have managed——
The Taoiseach: I will answer the question and make a point. We are approaching the end of the session. I reached a substantial agreement with the party leaders in 2002 that we would have Leaders’ Questions on urgent issues in the mornings, and we agreed a particular format. Every other Standing Order in the House is obeyed most of the time. This has taken 21 minutes and if added to the normal 45 minutes, it is an hour. On this issue nobody is following anything. It is becoming ridiculous. When one responds to a question and tries to be helpful it just drifts out. We have spent two hours and 20 minutes——
Mr. Rabbitte: That is completely unacceptable and when the women of Ireland hear that is the way the Taoiseach treats and discriminates against some of them, it is a disgrace. The part-time actor from “Killinascully” wants to speak. What does the Minister for Finance, Deputy Cowen, want to say?
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