New legislation on sexual offences and human trafficking passed by Oireachtas

The Minister for Justice, Helen McEntee TD, and Minister of State at the Department, James Browne TD, have welcomed the passage through the Oireachtas of a Bill which strengthens the law on sexual offences and improves protections for victims of sexual offences and of human trafficking.

The wide-ranging Criminal Law (Sexual Offences and Human Trafficking) Bill 2023 will:

• Ensure anonymity for victims in all trials for sexual offences;

• Extend the victim’s right to separate legal representation if they are being questioned about their previous sexual history;

• Ensure character evidence at a sentencing hearing for a person convicted of a sexual offence must be made on under oath or by way of affidavit;

• Ensure people subject to military law who commit specified sexual offences will be dealt with by An Garda Síochána and the civilian courts rather than by courts-martial;

• Put the new National Referral Mechanism (NRM) for human trafficking victims on a statutory footing; and

• Clear the final obstacles to ratification of the Second Optional Protocol to the UN Convention on the Rights of the Child on the sale of children, child prostitution and child sexual abuse material.

Minister McEntee said:

The legislation implements key recommendations in the Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences which underpins the Government’s strategy - ‘Supporting a Victim’s Journey’ - to improve the criminal justice system for victims of sexual violence.

The victim’s right to separate legal representation if there is an application to question them about their previous sexual experience will be extended to include trials for sexual assault, which had not previously been covered under the legislation. The barrister who is assigned to represent the victim at the application will be allowed to continue to represent the victim at the questioning, if the application is granted.

The Bill provides for the ‘vouching’ of character evidence in sexual offences cases. This will ensure that where a person has been convicted of a sexual offence, character references presented at sentencing will have to be made via oath or affidavit. This provision also fulfils a key commitment from Minister McEntee’s ‘Zero Tolerance’ Strategy to tackle domestic, sexual and gender-based violence.

The legislation also provides for the anonymity of an accused person, unless and until he or she is convicted of a sexual offence.

The new Bill also puts a revised National Referral Mechanism (NRM) in place for identification and support of victims of trafficking. This new approach will make it easier for victims of trafficking to come forward, be identified and access advice, accommodation and support.

Some victims of trafficking, because of interactions they may have had with law enforcement officials in other jurisdictions, have a perception that police cannot be trusted. The new approach acknowledges other state bodies, outside of An Garda Síochána, as well as NGOs have a role in identifying victims of human trafficking and referring them to the NRM.

Minister McEntee added,

The new legislation also implements recommendations by the Defence Forces Independent Review Group (IRG). The IRG recommended amendments to the Defence Act 1954 to ensure that persons subject to military law who commit sexual offences in this jurisdiction be dealt with by An Garda Síochána and the civilian courts - rather than by courts-martial.

The legislation will also clear the path for Ireland’s ratification of the Second Optional Protocol to the UN Convention on the Rights of the Child.

ENDS

Note for editors:

O’Malley Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences recommendations

The O’Malley Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences was approved by the Government on 4 August 2020. The report details recommendations to improve a victim’s experience during a sexual offence trial. The resulting implementation plan, Supporting a Victim’s Journey, was published by Minister McEntee in October 2020.

The Bill will implement a number of the legislative reforms recommended in the O’Malley Review. The majority of these recommendations relate to the anonymity of either the victim or the accused and address gaps identified by Professor O’Malley in the Statute Book where anonymity was not guaranteed for some offences.

National Referral Mechanism (NRM) for Victims of Human Trafficking

The Bill will provide the legislative basis for a new National Referral Mechanism (NRM) for victims of human trafficking. An NRM – as defined by the European Commission and OSCE – is a framework through which States fulfil their obligations to protect and promote the human rights of trafficking victims, working in partnership with civil society.

Currently, An Garda Síochána is the sole competent authority for the formal recognition of people as victims of human trafficking. It is recognised that having the Gardaí as the sole competent authority for this is not an adequate response.

Some victims of trafficking, because of interactions they may have had with law enforcement officials in other jurisdictions, have a perception that police cannot be trusted. The new approach provides for other state bodies and NGOs to have a role in identifying victims of human trafficking and referring them to the NRM.

Amendments to the Defence Act 1954

In March 2023, the Independent Review Group published a report on dignity and equality issues in the Defence Forces. Among other things, the Group recommended that section 169 and section 192 of the Defence Act 1954 should be amended to ensure that specified sexual offences are not dealt with under military law or in the court martial system. Rather, these should be investigated by An Garda Síochána and prosecuted in civilian courts.

These amendments will ensure that sexual assault, aggravated sexual assault, rape and rape under section 4 offences which take place in this jurisdiction will be dealt with by An Garda Síochána and the civilian courts. Military law will continue to apply where such offences take place overseas, where An Garda Síochána does not have jurisdiction.

Second Optional Protocol to the UN Convention on the Rights of the Child on the sale of children, child prostitution and child sexual abuse material

The Office of the Attorney General has advised that in order to overcome one of the last obstacles to ratification of the Second Optional Protocol to the UN Convention on the Rights of the Child, section 3 of the Criminal Law (Sexual Offences) Act 2017 needs to be inserted into the Schedule to the Sexual Offences (Jurisdiction) Act 1996 to provide for extraterritoriality. Section 3 of the 2017 Act creates an offence of obtaining or providing a child for the purposes of sexual exploitation and its addition to the Schedule of the 1996 Act will allow it to be prosecuted where some or all of the offence is committed outside the State.