18 Aug 2022

DPP asks for clarity on whether child exploitation offence requires proof that the child was trafficked

DPP asks for clarity on whether child exploitation offence requires proof that the child was trafficked

The Director of Public Prosecutions has asked the Court of Appeal to decide whether child sexual exploitation can only be an offence when the child is also a victim of trafficking.

The issue arose due to a ruling by Central Criminal Court judge Mr Justice Robert Eagar in 2016. Mr Justice Eagar ruled that the relevant sections of the Child Trafficking and Pornography Act 1998 and the Criminal Law Act 2008 did not create a "standalone offence" of child exploitation. 

The judge said that the offence of exploitation was "enmeshed in the offence of trafficking" and for a person to be guilty of exploitation they must also be proven to have "trafficked" the child. His ruling was then referenced last year by a Circuit Court judge when he directed the acquittal of two farmers who were charged with the sexual exploitation of a 16-year-old female farm labourer.

Michael Delaney SC for the Director of Public Prosecutions appeared on Friday in front of the Court of Appeal in a "without prejudice" hearing that will not affect the acquittals in the previous trials. He argued that Mr Justice Eagar's ruling was incorrect and that: "The offence of sexual exploitation ought to be interpreted as a stand-alone offence and ought not to be interpreted as related solely to cases where children have been trafficked."

He said that the "plain meaning of the words used" in Section 3(2)(a) of the 1998 Act creates a standalone offence that does not require proof that the child has been trafficked. He added: "There is no ambiguity in the language used which calls for any other meaning to be considered."

The section states: "Any person who takes, detains, or restricts the personal liberty of, a child for the purpose of his or her sexual exploitation... shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years."

Sexual exploitation is partly defined as: "inviting, inducing or coercing the child to engage or participate in any sexual, indecent or obscene act."
Mr Delaney said Mr Justice Eagar was influenced by marginal notes written into the legislation and by views expressed by the then Minister for Justice when the Bill was going through the Dail. He pointed to a comment by the judge that the minister had said the "gist of the offence is trafficking, not exploitation." Mr Delaney said Irish legal authorities had established that speeches made in parliament should not be considered when interpreting legislation in court.

President of the Court of Appeal Mr Justice George Birmingham, sitting with Ms Justice Isobel Kennedy and Mr Justice John Edwards, reserved judgement.

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