Is the proposed 'Fagin's law' an actual change to Irish law?
ToggleThe new law concerns the grooming of children into crime, but whether it fills a gap in Irish criminal law is open to question, writes Dr Cian Ó Concubhair, School of Law and Criminology
The implicit suggestion is that there is currently a significant gap in Irish criminal law, which the Bill will address. The proposed Criminal Justice (Engagement of Children in Criminal Activity) Bill 2023 follows a recommendation by the Special Rapporteur On Child Protection in 2017. This followed the creation of such a law in the Australian state of Victoria that same year.
Changing approaches to child offenders
The proposed Bill is part of an international shift in criminal justice policy discourse around child offenders. From 1970 to the 2000s, concern about youth offending (particularly in the English-speaking world), and the threat 'delinquent' children posed, occupied a central space in public and media anxieties about crime and security.
Many political systems exploited these fears. For example, a central part of Tony Blair's successful 1997 election campaign in Britain centred around youth crime, public fears over which had grown significantly in the aftermath of James Bulger’s murder. That campaign gave birth to antisocial behaviour orders, the ‘ASBO’.
But in recent years, there has been a gradual change in the political and policy discourse around child offenders in Britain and now Ireland. The change in Britain emerged in the aftermath of the child grooming scandals in England beginning in 2012. This period introduced terms like ‘Child Sexual Exploitation (CSE)’ to the political mainstream. New concepts like 'Child Drug Exploitation'/‘county lines’ soon emerged in English policing discourse.
The new terminology reconceptualised some categories of child offenders––particularly those engaging in low-level drug dealing––as victims of 'gang exploitation'. While British policing has pioneered the policy discourse and (some) new practices, the UK has not so far introduced a specific offence like Ireland’s proposed ‘Fagin’s law’.
What does the Irish bill set out to do?
While the Minister for Justice claims the proposed Bill creates a new criminal offence, it's open to question if it fills a particular gap in Irish criminal law. It creates two new offences, but both offences appear to already be covered by the current rules of criminal complicity, particularly Section 7 of the Criminal Law Act 1997, which criminalises people who assist or encourage the crimes of others.
The only difference between the existing and proposed rules is the nature of the 'criminal activity' engaged in by the child. The current law requires that the target offence committed by the child must be an indictable offence. The proposed Bill does not have that threshold, meaning minor criminal activity by a child could lead to conviction of an exploiting adult.
Would this change make a significant difference to the law's ability to deal with child exploitation of the sort this Bill has in mind? If our concern is 'child drug exploitation’, then the proposed offences would not make it easier to criminalise exploitative adults. Drug dealing––even of the ‘low level’ sort––is a serious offence.
Similarly, section 2(3)(a) of the Bill appears to be another departure from the rules of complicity by filling the gap in criminalising attempted encouragement or assistance. However, the existing common law rules of criminal incitement do adequately cover these scenarios. If there is a gap in the current criminal law, it appears to be a very narrow one, of little significance to tackling the kinds of exploitation at issue.
Is the new Bill a good change?
Even if the proposed Bill does not fill any substantive gap in the law, is it still a positive development There are a number of advantages in creating 'new' offences like these. First, the existing rules of complicity and incitement are complex. Much of the law is not set out in statute, but in inaccessible case law. The proposed Bill would put these criminal rules in a single, accessible place. In theory, this makes it easier for victims, parents, communities and Gardaí to identify criminally exploitative conduct.
Second, ‘new’ offences can have significant symbolic value. The current rules are general, and not designed to deal specifically with exploitation of children. The creation of distinct, child-centred offences might focus minds of Gardaí and the DPP leading to more prosecutions. It may also aid the broader shift in re-conceptualising of some children as victims, not offenders.
But there are disadvantages with enacting this proposed Bill. Creating 'new' offences is a low-cost response by states. Properly resourcing and motivating police, social care workers and prosecutors to address this form of exploitation is an expensive and complex task. Legislation alone gives a political veneer of meaningful action.
The proposed Bill could potentially over-criminalise. The current definition of ‘adult’ in the Irish Bill includes any person over 18 years of age. By contrast, the Victoria Australia law only criminalises adults over 21 years of age. One rationale for this higher age threshold is to avoid criminalising young adults who are, themselves, victims of such grooming. This problem can easily be remedied by the Oireachtas.
To conclude, the Department of Justice is currently experiencing a period of (mostly) welcome legislative hyperactivity. But this work should not privilege symbolic laws over substantive action to address exploitation.