merrion street

On behalf of the Minister for Justice and Equality, I want to publicly thank Deputy Naughten for raising this issue. It was the Minister’s intention to be in the Chamber for this debate but unfortunately he is unable to be here because he is required to attend a Cabinet meeting. As Deputy Naughten and other Deputies know this is an issue in respect of which the Minister has voiced concerns over the years. Since assuming office he has been committed to bringing before the House comprehensive legislation with regard to the area of sexual offences and the Minister met earlier this week to discuss with Deputy Naughten the Bill before the House this morning.

Recent events have shown that we have to be ever mindful of the dangers posed to our children and must explore all avenues that will enhance their safety. We all want to take a comprehensive approach to minimising the risk posed to our children. This is not a simple task nor will we ever be able to eliminate that risk altogether but child safety and putting children first is a priority for this Government. Any debate that helps us consider how we can best protect our children is to be welcomed.

This Bill focuses on the threat posed to a child by the unknown stranger in the neighbourhood. I wish to make the point at the outset of this debate that while, of course, we must take steps to minimise that threat, the greater risk to a child of sexual violence, unfortunately, is likely to be from a member of the child’s family or an acquaintance.

This week the Rape Council Network of Ireland published important research on sexual abuse of children in Ireland. Of the children who reported sexual violence 7% of reported incidents involved “strangers”; 31% involved close family members; and 39% involved friends and neighbours.

The report made it clear that, where sexual violence is perpetrated by a family member, many children do not report such incidents until they reach adulthood. An analysis of all of the people who reported child sexual violence in this study, whether they reported the abuse as a child or did not report it until they became adults, showed that 50% of reports related to sexual violence perpetrated by a family member.

Some children are simply either reluctant or afraid to report sexual violence perpetrated by a family member, and this is understandable. The humiliation, fear and denial of the terrible realities of familial abuse contribute to the obstacles faced by children in reporting sexual violence perpetrated by a family member.

It is difficult for many to come to terms with the reality of familial sexual abuse as it utterly offends our notion of family care and protection. But while we focus on “stranger danger” it is important that we do not neglect or ignore where the real danger lies for many children - the risk of abuse from someone they know. It is, of course, important in this context to emphasise that, while such a risk is very real, this applies to the minority of families and family settings and the vast majority of parents, their relations and friends do not pose any such risk. It is the failure, however, to recognise that such risk can exist that can condemn too many children to repetitive abuse by a serial abuser while those close to the abused child are either oblivious to the danger, in a state of denial or choose to look the other way.

These issues are not unique to Ireland. The World Health Organisation and the United Nations Secretary General published a major international study of sexual violence against children in 2006, which showed that much of the sexual violence against children is perpetrated by family members or people residing in or visiting the family home. This report showed that, of the 150 million girls worldwide who have experienced sexual violence, up to 56% was perpetrated by relatives An analysis of the child protection files in Spain in 1997 and 1998 showed that 3.6% of abuse cases involved sexual abuse, and of these cases 96% of the perpetrators were family members and relatives..

This global report also acknowledges that adults are more comfortable and outspoken about the risk of sexual violence at school or in the community, but are much less likely to discuss a child’s risk of sexual abuse in the family home.

My concern is that the dominance in the discourse of the risk posed by a shadow behind a bush, instead of the footstep on the stairs, can divert our attention from the greatest likelihood of danger to children and may make it more difficult for children to report abuse by those they trust and depend on most.

The Bill before the House today essentially addresses the risk posed to children of sexual abuse and assault by strangers. The Minister shares the desire of the Deputy to enhance the protection that can be afforded to our children. There are many positive aspects to the Bill.

It is the Minister’s belief, for example, that a parent, who has a legitimate concern about an individual in contact with their children, should be in a position to raise that concern with their local Gardaí. Indeed, he would hope that parents would already feel free to do so and, if there is a serious and imminent threat to their children, he is confident that the Gardaí would already take the appropriate action. Under Children First guidelines, on becoming aware of any danger to a child, the Gardaí notify the HSE who are empowered to carry out a number of activities, including approaches to parents and organisations. Under Section 8 of the Data Protection Act, information may be disclosed directly by the Gardaí to prevent an offence or to prevent injury to a person.

As I will explain in detail later, the Minister will be asking the Commissioner to introduce an appropriate scheme on this matter.

However, we all have to be conscious of the rights established under our Constitution and the European Court of Human Rights. They do not allow the blanket disclosure of information on convicted criminals. It must be in pursuit of a legitimate aim, and proportionate, and must balance the competing rights at issue.

Based on preliminary advices received from the Office of the Attorney General, there may be issues of constitutionality and concerns about the compatibility of this Bill with the European Convention on Human rights.

As regards Part 3 of the Bill, the Minister believes that it would be better for those subject to the requirements of the Sex Offenders Act 2001 to be required to register with their local Garda station, not just any Garda station and that the time period for registration should be reduced from 7 days to 3 days.

As the Minister does not have any issues with the general approach, the Government will not be opposing its reading at Second Stage.

However, its focus is very limited and there are a number of drafting difficulties. The Minister is already bringing forward legislative proposals which will address the issues raised in this Bill as part of a more comprehensive approach to the question of sexual offences.

As regards the text of the Bill generally, the Minister thinks the approach is too complicated and confusing and that many of the provisions are unnecessary.

Under Sections 4 and 5, an application can only be made in respect of a "named person". I can imagine many circumstances where a parent would have concerns about an individual but would not be able to establish the name of the person. Should they be excluded?

While on the face of it, the procedure is appropriately restricted to a person " who has contact with his or her child or vulnerable adult", the definition of "contact" in Section 1 includes "likely physical presence in the vicinity of the child or vulnerable adult" and, as a result, is so wide as to cover most of the population. The preliminary advices received from the Office of the Attorney General identify this as a key concern as the Bill throws an extraordinarily wide net as to those about whom information may be sought. This raises issues about proportionality having regard to the objective to be achieved.

The Office of the Attorney General has also voiced strong concerns about the lack of any safeguards in the Bill to protect the constitutional and ECHR privacy rights of persons about whom information is sought. In the Bill, such persons do not have any right to know that information about them has been disclosed and will not have an opportunity of correcting information that is inaccurate.

The Bill includes an appeal against non disclosure and requires the establishment of a three person appeals panel in each Garda Division. The Minister is not sure whether such a system could be justified. There is no appeals provision in the UK scheme, which is understandable as a person either receives information or is told there is no information to disclose. It is hard to see what is the purpose of an appeal or how it could be argued by applicants that a decision should be reversed if all they have is a response saying there is no information to disclose.

The Minister has concerns about Section 8 which makes it an offence for a person to fraudulently, maliciously or vexatiously make an application. Presumably, applications would be made in private to a designated Garda and ask for information on a person. As the application will be private and is inquiring after information, it is hard to see how an application itself it can cause harm. The only two circumstances that the Minister can envisage being of concern is wasting police time or seeking information on a third party when there is no perceived threat to a child. Wasting police time is not a new problem and the penalties for wrongful disclosure of confidential information would address the second issue. The Minister thinks that Section 8 is heavy handed and might serve to deter parents from making genuine applications.

Moving to the substance of the proposal, we have to place this in context. There is already a structure in place in this jurisdiction to monitor convicted sex offenders with a designated Garda Inspector in each Garda Division having responsibility. As stated earlier, under Children First guidelines, if the Gardaí become aware of any danger to a child, the Gardaí notify the HSE who are empowered to carry out a number of activities, including approaches to parents and organisations. While there is no formal scheme in place, there is nothing to stop any individual making inquiries with the Gardaí about an individual who may pose a threat to their children.

The Explanatory Memorandum to the Bill states that the scheme is modelled on “Sarah's Law”, which operates in the UK through the Child Sex Offender Disclosure Scheme. Despite being referred to as "Sarah's Law" in the UK, the scheme in question is not a statutory scheme at all. It is an administrative scheme that formalised on a national level what would be regarded as good practice in child protection throughout the different police services in the UK. It was first piloted in the UK in 2008 before being extended nationally. The UK scheme is tied into the Multi Agency Public Protection Arrangements (MAPPA) for the management of sex offenders and is not a stand alone approach.

Two questions immediately arise. Why do we need an elaborate statutory scheme here if one is not required in the UK? More importantly why should we focus on just one aspect of the monitoring set up in the UK and not look at the bigger picture?

The Department of Justice and Equality carried out an extensive review of the management of sex offenders in this jurisdiction. It involved a series of consultative meetings with the front line Justice services involved, including the Gardaí, the Prison Service and the Probation Service, to look at the issue of the threat posed by sex offenders. In particular, there were detailed discussions about what legislative changes would bring a practical benefit to improving the management of the risk posed by sex offenders. Arising from these internal reflections, a comprehensive document entitled "The Management of Sex Offenders - A Discussion Document" was published in January 2009. Among other things, it looked at best practice in other jurisdictions. A Discussion Forum was arranged and oral and written submissions invited and received. The outcome of that consultative process was published on the Department's website in September 2010. There was a high level of engagement by those bodies dealing with the victims of crime and a general consensus as to the best approach.

There are currently 344 sex offenders in prison, 103 (including 78, to date) will be released in 2013 and 99 in 2014. Not all sex offenders pose the same level of threat on release and that has to be taken into account. Indeed the recidivism rate for sex offenders is lower than for the average offender. The most up to date study shows an average recidivism rate of 62.3% within 3 years for prisoners. The rate for sex offenders was much lower and less than 5% committed a further sexual offence within the 3 year study period. More sex offenders are participating in the Building Better Lives program in prison. In more serious cases, sex offenders can be subject to Post Release Supervision Orders imposed by the courts. 38 of the 99 offenders due for release in 2014 will be subject to such an order.

The existing system of monitoring sex offenders has already been strengthened as a result of the review carried out in 2009 and 2010. In managing convicted sex offender cases, there is now a high level of contact between the Gardaí and the Probation Service at a national level to support sex offender management, as appropriate in the interests of community safety. New procedures have been put in place taking into account best practice in other jurisdictions, including the MAPPA experience in the UK. The new system includes a Sex Offenders Risk Assessment and Management process, known by its acronym SORAM. It was introduced and piloted in 5 geographical areas in June 2010. Following its successful implementation, SORAM is being expanded nationally in cooperation with the Garda Síochána and includes the HSE’s Children and Family Services and the Irish Prison Service as partners. Nationwide implementation will be concluded by December 2013 ensuring that it is fully operational in all 28 local SORAM committee areas, including full participation by all statutory partners.

A National SORAM Office is also being established. This will be a multi-agency unit comprising personnel from An Garda Síochána, the Probation Service and the Children and Family Services of the HSE. It is being established on a 12 month pilot basis to support the fulfilment of the aims and objectives of SORAM.

Research confirms that high levels of intervention should be reserved for high risk offenders and that interventions should focus on factors relevant to the risk of re-offending. Therefore, in developing its capacity to manage sex offenders, the Probation Service has introduced a combination of two risk assessment instruments for sex offenders:

§ Risk Matrix 2000 (RM2000), a static risk assessment instrument; and

§ Stable and Acute 2007 (SA2007), a dynamic risk assessment instrument.

Both instruments have been introduced in partnership with the Garda Síochána and risk assessment is fully integrated into the Sex Offender Risk Assessment and Management model (SORAM). One aspect of the risk assessment model used guides the level of intervention and regulation required and the second guides the nature of that intervention.

The comprehensive review that has led to the establishment of SORAM also looked at the question of the provision of information to the public, where appropriate. The conclusion on open public access was set out in paragraph 4.7 of the document entitled "Summary of views received on Discussion Document on the Management of Sex Offenders", which was published on the Department's website in September 2010. This stated that

"publication of the identity of sex offenders is counterproductive and will drive them underground. However the view was expressed that those with a legitimate interest should receive appropriate information and if there was a danger to the public the Gardaí should be able to make the identify of a sex offender known. National guidelines should be drawn up. The question was also raised whether there should be a mechanism for warning potential future victims, if for example an offender enters into a relationship with a person. It is intended to introduce legislative provisions to address this issue."

Within a matter of weeks the Minister will be bringing the heads of a Criminal Law (Sexual Offences) Bill to the Government for consideration. This is a comprehensive piece of legislation that will give effect to

- the legislative improvements identified by the Department's comprehensive review;

- recommendations of the Joint Committee on the Constitutional Amendment on Children;

- recommendations of the Joint Committee on Child Protection;

- the Optional Protocol to the UN Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography;

- the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse; and

- the EU Directive on combating the sexual abuse and sexual exploitation of children and child pornography.

One of the heads included in the forthcoming Sexual Offences Bill is to provide a statutory basis for disclosure, where appropriate. The Minister does not think it necessary, or helpful, to set out a detailed scheme in legislation but he believes that there should be an appropriate statutory footing for such disclosures. Once the Government has approved the General Scheme, the Minister will ask the Garda Commissioner to work in parallel with the drafting of the Criminal Law (Sexual Offences) Bill on the preparation of a scheme to regulate and provide guidance to the Gardaí on the disclosure to members of the public of information on particular sex offenders who pose a risk to them or their families.

I am confident that will address the concerns of the Deputy in so far as it is possible to do so in our legal and constitutional framework.

I should emphasize that the disclosure of information is not an end in itself. What is important is what action we take on the basis of information. We do not want to cause any unnecessary distress or alarm to parents nor do we want to encourage vigilantism. As indicated by the Department's review, the State authorities including the Gardaí, the Probation Service and the Health Service Executive are generally in the best position to identify and assess risk and take appropriate action. In particular, the Gardaí can apply for a sex offender order under Section 16 of the Sex Offenders Act 2001 prohibiting a convicted sex offender from doing certain things specified in the Order.

The Department's published Discussion Document, at paragraph 4.7.12, included a number of recommendations on the amendment of Part 2 of the Sex Offenders Act 2001, including a reduction of the 7 day notification period to 3 days and a requirement that notification be made at the appropriate Garda station. Deputy Naughten has included some of these recommendations in Part 3 of his Bill and he will not be surprised to hear that these recommendations are already included in the General Scheme of the Criminal Law (Sexual Offences) Bill which will be submitted to Government before the end of this month.

I hope I have made it clear that the proposals that the Minister is bringing forward will address the substance of what he is seeking to achieve in the Bill before us today.

I can understand that the Deputy is impatient to see progress quickly. It is possible to make progress on isolated issues by picking them out and including them in a short Bill. However, such an approach comes at a cost. It delays more substantive and comprehensive reforms and advancing one item without the supporting infrastructure can lead to an appearance of progress but without achieving any substantive improvement in the protection afforded to our children.

As I have outlined above, the Minister is bringing forward comprehensive legislation to address this multifaceted issue. There have been delays, but the Minister now has a general scheme of a Bill with some 70 heads ready to be submitted to Government later this month. There are some sensitive issues to address and obviously the Minister cannot give any guarantees as to what the Government will decide or how long drafting will take. However, I can assure the Deputy that the Minister regards this matter as urgent and he will be pushing it forward as quickly as he can.