Scheme satisfies criminal offence requirements but IHRC recommends provision for protection of victims and careful consideration of creation of new sexual offences
The Irish Human Rights Commission (IHRC) has forwarded its observations on the Criminal Justice (Trafficking in Persons and Sexual Offences) Bill 2007 to the Minister of Justice, Equality and Law Reform.
"The Irish Human Rights Commission views the issue of trafficking as a complex and important human rights issue requiring a broad range of actions on the part of the state. While there remains some uncertainty as to the precise extent of the problem in Ireland, there is no doubt that trafficking as a form of exploitation is both serious and wide spread, said Dr Maurice Manning, President of the Irish Human Rights Commission.
He continued that "the Irish Human Rights Commission (IHRC) welcomed the publication of this Scheme, as it aims to make trafficking in people for sexual or labour exploitation a criminal offence. It will strengthen the protection of many vulnerable people, in particular children. The enactment of this bill will also move Ireland towards compliance with international human rights standards, in particular the ratification of two important international treaties: the Council of Europe Convention on Trafficking and the Optional Protocol to the United Nations Convention on the Rights of the Child".
In relation to the substance of the Scheme of the Bill, the Commission identified a number of key areas as giving rise to human rights concerns. The Commission has made recommendations to improve the Scheme of the Bill; highlighted omissions about the protection of victims of trafficking; and urged caution regarding the framing of new sexual offences.
The Commission welcomed the introduction of the new offence of sale of children. While children clearly require special protection, the Commission believes that practices involving the sale of any human being for the purpose of exploitation should similarly be proscribed, and recommended the extension of the offence to adults as well as children.
Given the potentially international nature of the offences involving trafficking and the exploitation of children, the Commission welcomed the extension of the remit of the Scheme (and other Acts) to offences involving trafficking and the exploitation of children outside the Irish jurisdiction. However the Commission identified a gap in the law in terms of the protection of non citizen children who have been habitually resident in Ireland and recommends that the application of this provision should be extended to protect these children.
The Commission noted that measures facilitating the psychological and physical recovery of victims are entirely absent from the Scheme, as published. Dr Manning, President of the Irish Human Rights Commission said that
"This Scheme and/or other legislative measures are needed to provide stronger protections for victims of trafficking. Access to appropriate healthcare, legal aid, and material and other supports should enable victims escape from their exploiters, and begin a new life. Concrete resources are required to ensure effective access to these rights".
The Commission also expressed concern that the possibility of deportation and subsequent re-victimisation was not addressed in the Scheme. Nor is there provision made in the Scheme for the protection of children once identified as victims. The Commission recommends the development of appropriate and sensitive safeguards to ensure the full protection of the child victim.
The Commission recommended the careful consideration of the development of new criminal offences into legislation. The framing of new offences, such as the introduction of the concept of ‘grooming’ of children for the purposes of sexual exploitation is a new departure for the Irish system, and the Commission believes its implementation should not be unduly rushed.
Concerns were also raised by the Commission that certain terms in the Scheme are not defined or the definitions contained in the Scheme need to be clarified. These include the term "child pornography", the phrase "indecent or obscene"; the term "sexual activity"; the concept of a "position of authority".
The Scheme of the Bill also includes proposals on the management of risk of sex offenders, and the sharing of information with other states which need further clarification. Dr Manning stated that: "Although the statistical evidence of recidivism amongst sexual offenders may be compelling, careful safeguards must be put in place in relation to the use of information about previous convictions within the criminal justice system.
The Commission is also concerned about proposals to allow the sharing of information with other States. Dr Manning went on to say that "Any such proposals would have the potential to seriously compromise the rights of individuals and would need to be tightly regulated".
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