The Minister for Justice, Equality and Defence, Mr. Alan Shatter, T.D., today announced the publication of the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Bill 2012. The Bill is one element of a suite of legislation to protect children and vulnerable adults to which the Government is committed.
The Bill creates a criminal offence of withholding information in relation to serious specified offences committed against a child or vulnerable person. The offences specified include most sexual offences and offences such as assault causing harm, abduction, manslaughter or murder. These offences are also offences which are subject to a minimum penalty of 5 years imprisonment.
The primary purpose of this Bill is to close an existing loophole in our current law. The Offences Against the State (Amendment) Act 1998 provides for an offence of withholding information in relation to serious offences but specifically excludes sexual offences. The 2012 Bill will ensure there is an obligation on persons who have knowledge of any serious offence including sexual offences against children and vulnerable adults to inform the Gardaí.
In addition to establishing the offences of withholding information on certain crimes committed against children or other vulnerable persons, the Bill also outlines a number of potential defences. For instance, a person may rely on a defence of failing to disclose the relevant information in circumstances where the child or vulnerable person who was victim of the offence and who revealed the information requested that the information would not be further disclosed.
There are also defences for persons such as a parent or guardian or medical professional who is acting in the interests of the health and well-being of the child or vulnerable person.
These defences ensure that specified persons acting in the best interest of a victim will have a defence against a charge of failing to disclose information under the Bill.
Last year, the Joint Oireachtas Committee on Justice, Equality and Defence considered the Scheme to this Bill. They received a number of submissions from interested parties. The Department of Justice and Equality also received a number of submissions from a wide range of groups and individuals and also from the Ombudsman for Children . These submissions and the recommendations of the Committee were taken into consideration in finalising the Bill.
The Minister for Children and Youth Affairs has also announced her proposals to place the Children First Guidelines on a statutory basis. The Withholding Information Bill and Children First represent a two-pronged approach to ensuring full reporting of offences, or suspicions of such, which are committed against children. Withholding Information requires the disclosure, to the Garda Síochána, of information concerning specified offences against children with a view to apprehending the perpetrator of the offence. Children First places an obligation on those working with or having access to children to report, to the HSE, incidents of abuse or allegations of abuse with a view to ensuring an appropriate response to child abuse and neglect.
In announcing the Government decision, Minister Shatter said “I am delighted that the text of this important Bill has been approved. The Cloyne and Ryan Reports have clearly demonstrated the need to strengthen our law in regard to the disclosure of information regarding offences against children. It is not acceptable that there can be a cloak of secrecy surrounding such offences or offences against other vulnerable persons in our society.
The defences set out in this Bill seek to protect the victims of serious offences as much as provide a defence for those who legitimately act in the best interest of a victim. This Bill should not deter victims of serious offences from seeking the help and assistance they need in addressing the harm and damage caused to them.
The two separate and distinct Bills we are publishing today recognise and reinforce the distinct roles of the Garda Síochána and the HSE with regard to the protection of children and vulnerable persons. Only the Gardaí can investigate a criminal offence against a child and vulnerable person. Only the HSE can provide the necessary supports and monitoring of children at risk and where necessary initiate childcare proceedings. While distinct, the work of each in the protection of children is, of course, complimentary and in the childcare guidelines prescribed this aspect of matters is addressed.
I believe that the Criminal Justice (Withholding Information on Crimes against Children and Vulnerable Adults) Bill 2012 together with the provisions proposed by the Minister for Children and Youth Affairs to place the Children First Guidelines on a statutory basis, will further strengthen child protection in this country.
The Criminal Justice Bill will be discussed firstly in the Seanad and then go the Dáil and I look forward to the co-operation of the members of both Houses in enacting this legislation. When it comes to the most vulnerable in society, persons who have in the past been failed, we must take every necessary step to enhance their protection. Today is one such step.”
25 April 2012
ENDS
Note to Editors
Under this Bill, it will be an offence to fail to disclose to the Garda Síochána, without reasonable excuse, information concerning certain serious criminal offences where such offences are committed against children (section 2) or a vulnerable adult (section 3).
The information relating to the offence must be information which the person who fails to disclose it knows or believes might be of material assistance in apprehending, prosecuting or convicting the perpetrator.
The Bill establishes some limited defences for persons charged under the Bill (section 4).
It will be a defence if a person fails to disclose information at the request of the victim of the offence in question.
There are also defences for persons such as a parent or guardian or medical professional who is acting in the interests of the health and well-being of the child or vulnerable person.
The penalties for an offence of withholding information are set out in section 5 of the Bill and are related to the gravity of the offence concerning which information is withheld.
The Constitution (Article 15.5.1) does not allow a criminal offence to be made retrospective. Following consultation with the Attorney General it was decided it would not be feasible to make it an offence to withhold information, where that information has been received before the Bill was enacted. The Government therefore decided that:
- the new law should be clear cut and universal in application.
- it will apply to non disclosure of information received after the Bill is enacted even where it relates to something that happened before enactment.
- any exceptions provide in the Bill should be solely to protect the health and welfare of the victim, and to ensure that the appropriate supports can be provided to children and vulnerable persons.
It must be borne in mind that existing provisions in the criminal law for the protection of children continue to apply, including section 176 of the Criminal Justice Act 2006. This makes it an offence for a person with authority or control over a child or abuser to intentionally or recklessly endanger a child by causing or permitting a child to be placed or left in a situation which creates a substantial risk to the child of being a victim of serious harm or sexual abuse, or failing to take reasonable steps to protect a child from such risk while knowing that a child is in such a situation.