Adjournment Motion – Directive 2011/92 EU – Child Pornography

Wednesday, 30th January 2013

I thank the Minister of State for coming to the House to take this Adjournment matter. In February last the Independent group tabled a Private Members’ motion in the Seanad seeking to block child abuse material on the Internet, at which time the Minister for Justice and Equality gave a clear commitment that the matter would be fully considered in the context of the proposed Criminal Law (Sexual Offences) Bill.

I note from the Government’s legislative programme for the spring session of 2013 that while publication of the Bill is expected in 2013 it is listed in section C, along with 12 other justice and equality Bills, as a Bill in respect of which the Heads have yet to be approved by the Government. I am concerned the matter is not receiving the urgency I would like. Furthermore, the impending transposition deadline of the 18 December 2013 for the relevant EU directive on the sexual abuse and exploitation of children and child pornography adds greater urgency to this debate.

The Minister of State will be aware of a number of recent cases which highlighted the alarming and disturbing volume of child abuse material circulating within this jurisdiction. One such Irish case pertains to a recent criminal prosecution for child pornography involving 135,555 images and videos showing severe child sex abuse in Ireland, including bondage, cruelty and bestiality. A child abuse image is a crime scene. It is a digital record of sexual abuse being perpetrated against a child. Directive 2011/92/EU of the European Parliament and Council of 13 December 2011 combatting the sexual abuse and exploitation of children and child pornography and replacing the Council framework decision needs to be in place in Ireland by December 2013. I refer the Minister of State to Article 25 of that directive. Among the wide-ranging provisions in relation to criminal offences and sanctions in the area of sexual abuse and exploitation of children, the directive requires all EU member states to take the necessary measures to ensure the prompt removal of any web pages containing or disseminating child abuse material hosted on servers within their jurisdiction.

With appropriate safeguards, the directive also permits member states to take measures to block access to Internet users within their territories of web pages containing or disseminating child abuse material hosted on servers outside their jurisdictions. While Ireland has arrangements in place to secure the removal of child abuse material on domestic servers and to report materials found outside the jurisdiction via the INHOPE network, Ireland has not sanctioned a system that would allow the same material hosted overseas to be blocked where its removal proves difficult or takes an unreasonable length of time.

I put it to the Minister of State that, in transposing this EU directive, we have the opportunity to legislate for the blocking of child abuse material, bringing us into line with a number of our European partners – Denmark, Finland, Sweden, Italy, Malta, the UK and France, which has just passed legislation but does not yet have its provisions in place. We need legislation and a victim identification database. We must underpin existing measures to ensure the removal of material. We must direct Irish Internet service providers to put in place a blocking system where removal proves difficult or is likely to take an unreasonable length of time.

I am conscious of my time. The Minister for Justice and Equality’s record on child protection is exemplary. While he was in opposition, I had the pleasure to work with him on many issues in my role in an NGO. However, the Internet service providers are lobbying strongly not to impose blocks. Having considered the matter, I believe that we should block. My purpose in raising this matter today is to give it urgency and to ensure that we block.

Minister Kathleen Lynch: The Senator worked closely with the current Minister and I am glad that she recognises his commitment and that he is not someone who is easily swayed, regardless of the lobby group involved.

On the Minister’s behalf, I thank the Senator for raising this most important and sensitive matter. He recalls a useful debate in the House almost one year ago when the Senator last raised this topic. She seeks an update on the progress being made in transposing Directive 2011/92/EU.

I have only a limited time available to me, but the Minister wanted to address an impression that may be conveyed by the opening lines of the motion. They suggest there is a large quantity of child abuse material in circulation. Of course, any quantity is too much, but the suggestion of large quantities is at variance with recent reports from Its most recent annual report for 2011 indicated that the level of validated reports of illegal content remained modest, which the Minister understands continues to be the case.

We can be thankful that increased vigilance and surveillance have meant that the circulation of child abuse imagery has become less overtly visible on the Internet, although I am never sure about whether this is actually good. There is less likelihood of the inadvertent viewing of such material by the general public. It is well known that there are levels of circulation of such material that are not amenable to surveillance, but those involved are subject to regular targeting by crime prevention agencies, including the Garda.

Turning to the directive, the deadline for transposition is 18 December. The Minister’s Department has been conducting a review of the law on sexual offences generally. This includes an examination of the measures required to implement a number of international legal instruments, one of those being the EU directive. This work is close to completion and the Minister expects to bring a draft general scheme to the Government shortly for approval to have the necessary legislation drafted. The Senator will appreciate that, until the proposals are considered by the Government, the Minister is constrained in what he can say concerning their precise content. However, they will constitute wide-ranging legislation to implement the recommendations of two Oireachtas committees, facilitate full compliance with the criminal law provisions of relevant EU, UN and Council of Europe instruments, reform the Sex Offenders Act 2001 and enhance the protection of children against sexual exploitation, including child pornography.

Regarding the specific issue of blocking of websites containing child pornography in accordance with Article 25, paragraph (2) of the directive, the Minister can inform the House that his officials are engaged in discussions with the Garda and representatives of the Internet service providers on this matter. These are the key players in implementing any arrangement to give effect to that paragraph. The Minister knows that they are fully committed to doing whatever is required to prevent the Internet from being used for the viewing and distribution of child pornography. However, there is still some way to go in the current discussions and he is not in a position at this time to say definitively what measures can be put in place or their form.

As the Minister stated when the Seanad last debated this issue, the Internet is a global phenomenon, with no single organisation controlling it. International co-operation is vital in combating illegal activities, particularly in view of the rapid rate of technological innovation. The Minister is pleased that Ireland is one of 48 countries that signed the global alliance against child sexual abuse online, which was launched in December 2012. This is a joint EU and US initiative and aims to reduce as much as possible the availability of child pornography online. This is an example of how the international community can marshal its resources to defeat this heinous business.

I look forward to hearing from the Senators and will be paying close attention on behalf of the Minister to the opinions expressed. It has always been my opinion that it is only with international co-operation that one can do anything about these issues. We have the benefit of being a member state of the EU and we should use our membership to its fullest extent.

Senator Jillian van Turnhout: Next week will see the tenth annual safer Internet day. The Minister of State questioned the reference in my opening lines to a large quantity in circulation, but just one case—–

Minister Kathleen Lynch: It would be too much.

Senator Jillian van Turnhout: —–involved 135,555 images and videos. How many children in Ireland are we talking about? Please, let us not quibble over figures. Since does not advertise, the public do not know that they can report cases. The countries that block can report how many hits per day those sites receive. I would accept this measure. Time and again, Internet service providers argue that it should be down to the country of source. In that case, why not review our drugs policy? Let us go to the country of source. Let us not put up any customs control. This does not make sense. We block drugs coming into the country. Why do we not block child abuse material? The same logic applies. We are discussing children’s lives.

I am happy to work on this issue and I realise the Minister’s commitment, but I also realise that there is a strong lobby. I want an equally strong lobby on this side to argue that blocking is the answer.

Minister Kathleen Lynch: I will be brief. There is no disagreement on this issue. Even if some disagree, they would not have the courage to argue in public. We need to do something as quickly as possible. Unfortunately, we must go through a process. The Minister is as committed to this matter as the Senator.

Senator Jillian van Turnhout: I have no doubt of that.

Criminal Justice (Spent Convictions) Bill 2012 – Report Stage

Wednesday, 30th January 2013

Part 1

I welcome the Minister of State to the House. On Second Stage I expressed my full support for the Bill and the amendments I have tabled are to strengthen it further. The Bill brings Ireland in line with the rest of its EU partners and the vast majority of the Council of Europe states. It is a mark of a fair, just and compassionate society to have arrangements in law that allow for individuals to put their offending past behind them and move forward with a clean slate. It is in everybody’s interest to facilitate and encourage the rehabilitation and reintegration of former offenders into society. My only concern, which my amendments are intended to remedy, is that the Bill, even with the Government amendments, which I take it will be supported and all of which I welcome, is still too restrictive and too conservative to fulfil its purpose.

I will begin by noting that I have no difficulty in supporting a further increase in the maximum limit of sentence to which the spent conviction regime will apply. The “30 months” amendment being put forward by my Sinn Féin colleagues has merit. A review in 2011 of the Rehabilitation of Offenders Act 1974 by the Ministry of Justice in the United Kingdom judged the limit of 30 month sentences to be too restrictive.

In response the UK Government, through the Legal Aid, Sentencing and Punishment of Offenders Act 2012 has reformed the relevant sections of the Rehabilitation of Offenders Act by setting the limit at 48 months. This is four times the limit proposed in the Bill.

The UK has a 40 year head start on us with regard to spent convictions legislation. This is not something it has come up with because of five years’ experience. After 40 years it has increased the limited to 48 months. During this time the Ministry of Justice in the UK strived to strike the appropriate balance between public safety and reducing barriers to integration for those who have moved on from offending behaviour. We have an opportunity to capitalise on the learning in the UK with the legislation before us.

I support my colleagues in Sinn Féin, whose amendment proposes to extend the limit to 30 months and this keeps with the minimum extension sought by the Irish Penal Reform Trust. I would have preferred to propose 48 months but I thought I would try to strike a middle ground, which is why the amendment proposes two years as a compromise between the 12 months in the Bill which is extremely restricted and prohibitive and the 48 months which has grown out of trust after 40 years of legislation in the UK. I believe two years strikes a good balance as we start out on this journey of recognising spent convictions.

Part 2

I thank the Minister of State for her response. It is good that we are all broadly in strong support of the Bill, although we are trying to make it that little bit better. It is good to have such a constructive atmosphere for this debate. There was only one comment with which I did not agree – it referred to recidivism rates in Ireland. In 2008, a report by UCD’s Institute of Criminology, which examined reoffending after more than four years, found that Ireland was in the mid to lower rates of recidivism compared to similar countries internationally.

While I still believe we are being too cautious, I will reflect on what was said. Although I will not move the amendments I have tabled under this grouping today, I reserve the right to bring them back on Report Stage.

Part 3

We agree on this issue. The fact the new spent conviction arrangements would not apply to multiple convictions arising from a single offence or incident was raised on Second Stage. Today’s amendments Nos. 22 and 23 seek to address that. I felt there was a danger that combining convictions of this nature could have had the effect of combining two minor sentences into a more serious sentence, thus taking all of the convictions out of the remit of the Bill. I do not believe that is what the Minister intended and my amendment was submitted to avoid that unintentional pitfall.

I am glad to see the Government itself recognises the need for clarity around the single incident, multiple conviction scenario. I am happy to support the Government amendment but, with respect, I would like the Government to look at the wording in my amendment because, in this case, it is particularly good wording. The Minister might say I would say that but I have taken advice today on it, although I am happy to support the Government amendment.

Part 4

I thank the Minister of State for her reply. Obviously, the overall rationale for my amendment is that the original rehabilitative periods put forward in this Bill of five to seven years for relevant custodial sentences and three to five years for relevant non-custodial sentences were too long. The Government’s own amendment, which reduces these periods to four to five years and two to four years, respectively, is very welcome but in my opinion is too conservative. Nevertheless, I welcome these changes and am supportive of them.

I wish to draw the Minister of State’s attention, once again, to the explanatory memorandum that accompanied the publication of the Bill which sets out the main purpose of the Bill as being “to assist the rehabilitation of offenders, who often experience difficulties securing employment as a result of having a conviction”. In order to achieve this objective, the Bill must be as generous as possible. To be generous does not mean being soft on crime in any way, although some members of the Government may believe that a less restrictive and less conservative law might be seen thus. It would show foresight and an appreciation of the long-term societal benefits of encouraging the rehabilitation and the reintegration of ex-offenders into society. A less restrictive spent convictions regime, negating as far as possible against the negative, far-reaching and often discriminatory consequences for ex-offenders and their families would also reflect the qualities, in Irish society, of compassion and forgiveness.

I am very aware of research conducted by the UK Home Office into re-conviction rates which suggests that if an individual has not re-offended in the first two years post-conviction, he or she is at equal risk of future risk of future offending as an individual with no previous conviction. That finding is in keeping with the fact that in the UK legislation, the conviction-free or rehabilitative period at the lowest end of the offending scale is actually two years. Obviously, when I put forward my amendment I was hoping that my original amendments would be accepted, which they were not. I will now reflect on this and return to it on Report Stage, if necessary.

Address to Seanad Éireann by Mr. Gay Mitchell MEP

Thursday, 24th January 2013

I welcome Mr. Gay Mitchell, MEP, to the House. I ask my question in light of the fact that Mr. Mitchell has twice won the title of MEP of the year for development. I did not necessarily know that he was the leading figure who successfully negotiated the development co-operation instrument in 2006. While that may sound like nothing much, that co-operation instrument has a budget of €16.9 billion between 2007 and 2013 and ensures scrutiny by the Parliament in development work. I also point to his more recent report on establishing a financing instrument for development co-operation and the lessons learned from that.

My question is in light of a Seanad debate in November on sexual violence in conflict and rape as a weapon of war. I spoke about Burma, Sudan’s Darfur region and, in particular, the Democratic Republic of Congo, DRC. I am very concerned about the escalating conflict in the DRC and the lack of attention it receives here. Given Mr. Mitchell’s role and experience as vice chairman of the ACP-EU Joint Parliamentary Assembly, I would like his advice on the positive role we could play in highlighting what is happening. While we know the DRC has had many wars, the current war has claimed 3 million lives, both as a direct result of the conflict and as a result of disease and malnutrition. As Mr. Mitchell’s speech today showed, there is a clear link between conflict and poverty. What role can we play?