Dáil Éireann debate -
Tuesday, 20 Nov 1990

Vol. 402 No. 8

Criminal Law (Rape) (Amendment)Bill, 1988 [ Seanad ]: Committee Stage (Resumed).

Question proposed: "That section 9, as amended, stand part of the Bill."

Mr. J. O'Keeffe

I am seriously concerned about the proposal to transfer the trial of persons for certain offences to the Central Criminal Court. Essentially the Bill provides that in future all rape and aggravated sexual assault cases — most are rape cases now — will be tried in the Central Criminal Court. I understand the Minister's thinking. The idea, as I understand it, is that he wants to give a fair expression of the seriousness with which such crimes are viewed. I understand that. The trouble is that the cosmetic can sometimes be in opposition to the reality.

Let me speak about the background. The Law Reform Commission made this proposal but they did so in the context of it being the beginning of a process of returning a wider criminal jurisdiction generally to the Central Criminal Court which is part of the High Court. The Minister has accepted the broad proposal, but not the context. The reason I am so concerned about the proposal, as far as rape and aggravated sexual assault are concerned, is that there could be enormous delays as a consequence of this proposal, so there are serious practical reasons why the Minister's proposal should not be adopted. The Minister referred in an earlier debate to the fact that there were only six rape trials per annum at present held outside Dublin. We must remember, however, that under the extended definition and under the provisions of this Bill the proposal will embrace a much larger number of cases.

My real concern is that the move proposed will result in considerable delays. That would be unfair to the complainant, the person who has been subjected to the horrendous crime of rape, who is surely suffering trauma enough without having that trauma dragged on over an extended period of time which would be the consequence of putting this proposal through.

Second, such a proposal is unfair to the accused. The accused faces a huge sentence in prison and in some instances may be in custody and, because of the clogged-up situation in the High Court the accused, who may ultimately be acquitted, could find himself spending considerable time in custody pending trial.

A basic principle of law is that justice delayed is justice denied. When we are talking about such serious charges we must all put our heads together to establish a system which will result in a speedy dispatch of such cases in the interests of the complainant and of the accused.

In general there have not been complaints about the conduct of such cases in the Circuit Criminal Court. Let me be blunt about it, there are absolutely no delays there and that is a major factor. Prior to 1981 one of the reasons for the transfer of virtually all criminal responsibility to the Circuit Court was the tremendous delays in the Central Criminal Court in Dublin. Trials were delayed for years and this led to defendants having the option of their criminal trials being transferred to the Central Criminal Court from the Circuit Court simply for the purpose of delay. This scandal was cleared up by the Courts Act, 1981, transferring all criminal jurisdiction, except for murder and treason, to the Circuit Criminal Court which is now completely up to date in its criminal jurisdiction.

In general there have been no complaints about the conduct of cases in the Circuit Criminal Court but there have been a few specific decisions which have given rise to public outcry. Whatever about the merits and demerits of those specific cases — I was horrified by a few decisions — the answer is not to throw the baby out with the bath water and dismantle a system that has worked well in the nine years since the Courts Act, 1981 but to accept the proposal Fine Gael have made, to adopt the Bill which I moved on behalf of Fine Gael in this House and to allow for a review of sentences. That is the answer and that inevitably will be drafted onto our criminal justice system whether by way of Fine Gael's continued opposition and pressing the issue or alternatively when Fine Gael come back to Government soon. That is the way to deal with the few specific decisions on sentences which have been subject to such criticism.

I mentioned the problem of delays. I was a practising solicitor — I do not practise any more — and I know the problem with the backlog of cases in the High Court. There is no proposal to increase the number of judges. If the Minister made such a proposal that would possibly change the thinking in this regard. I know that in Cork it takes up to three years to get a case to trial in the High Court and Circuit Court. That is the kind of situation we are dealing with. The backlog has been increasing, we are talking of a backlog of about 9,000 cases — I had some figures showing the increased numbers over the last couple of years. In that event I would appeal to the Minister to turn away from what I term a cosmetic solution. He should look at the reality and ensure that these cases are heard within a reasonable time in the interests of the complainant and the accused.

I know the Minister has given bland assurances that he does not envisage this provision leading to delays in the holding of these trials in the Central Criminal Court but I would point out that the former President of the Circuit Court, Mr. Justice T. F. Roe, expressed a strong view in this regard. I would further point out that the President of the High Court, Mr. Justice Liam Hamilton, has also strongly argued against this proposal. These are people of experience who have knowledge of the way the courts system works. If the Minister is not responsive to the views expressed by the Opposition, he must take into account the views expressed by senior judicial figures.

That basically is my concern. I will present my case in as soft a way as possible to encourage the Minister to my way of thinking. I fully understand that he wants to give clear expression in our laws to his concern and the concern of all of us about the seriousness with which rape cases must be viewed. When you approach a Bill with an understanding and an acceptance of that seriousness and at the same time end up with a proposal that will make matters worse, reality must dawn. I would strongly urge the Minister to change tack and not to proceed with this section.

Mr. Flanagan

Prior to the Minister replying to the questions raised by Deputy O'Keeffe I wonder would he give consideration to a couple of points I will briefly make. The essence of the matter is the delay. The reason we are opposing the section is that we feel this section will give rise to undue delay by transferring all these cases from courts throughout the country to Dublin without giving the High Court the necessary mechanism, in the form of extra appointees, to deal with them. If the Minister is to allay our fears by guaranteeing that he will embark on the appointment of new members of the Judiciary, I hope he will give consideration to the appointment of women who have a great role to play in the Judiciary. With regard to this legislation in particular it would be welcome if there were more women members of the higher Judiciary to deal with the type of offence envisaged by this legislation.

I am not satisfied with anything the Minister has said on the question of delays. I would refer to the Law Reform Commission consultation paper dealing with the trial of rape and related offences. The Law Reform Commission, in their wisdom, formed the opinion that the Central Criminal Court should have exclusive jurisdiction because of an apparent delay at Circuit Court level. I would say with the greatest of respect to the members of the Law Reform Commission that that opinion is not accurate. I would refer the Minister to Circuit Court statistics on serious crime, particularly rape. On average over the past number of years the delay involved in bringing an offender or an aggressor to trial was of the order of six months, not by any manner of means an undue delay. When looked at in tandem with the delays in the High Court it is fair to say that the Minister is not counteracting the element of delays by transferring cases to a centralised location. The amendment should not be withdrawn until guarantees on the question of delay are given by the Minister.

Apart from the question of delay there is also the matter of inconvenience. It would be of considerable inconvenience for witnesses, victims, members of the victim's family, members of the Garda Síochána and everybody involved in the prosecution to have to travel to Dublin for perhaps a week as the case is processed. I wonder if the Minister regards it as being in the best interest of everybody involved that trials should be centralised and that people from Donegal, Cork and all over the country, would have to move bag and baggage to the Four Courts for the duration of the hearing.

I make another point without even mentioning the crisis in our legal aid system of which every Member of the House and every member of society is fully aware. The Minister must accept that the statistics bear out the fact that most people charged with offences of the type envisaged under this legislation are on legal aid. The legal aid bill will be increased substantially by centralising the trials in the High Court. The amount of money available for legal aid is very scarce and there are areas of far greater need where this money could be directed rather than as proposed in this section.

There is another point I ask the Minister to take on board in considering the delay in the Central Criminal Court, the question of the trauma of the victim. There is no doubt that, between the commission of the crime and the bringing of the aggressor to trial, the victim lives and relives horrific trauma and the longer the delay the greater the trauma. It is in everybody's interest that the offender is brought to trial at the earliest opportunity to aid the victim, to enable her to put the unfortunate horror out of her mind and set about the task of rebuilding her life as quickly as possible.

I ask the Minister to carefully consider my final point, which is a reasonable one, although not the most important. Our criminal law system ordains trial by one's peers and trial by jury as envisaged under the legislation, with which we are all in agreement. At present the sexual offence of rape is tried at the various Circuit Court venues throughout the country and the jury members are made up of people from within the offender's local community. the odium in which rape and sexual offences are held in society is clearly identifiable and defined within that locality. I wonder, if we centralise it, will we reduce the odium in a local community towards a sexual offender?

By bringing all these trial to Dublin, perhaps we will depersonalise the crime as far as the aggressor is concerned, which may not be in society's best interest. On the other hand, I accept the point that by transferring the victim from a circuit area to Dublin one is aiding depersonalisation. However, on balance, the overriding consideration must be the delay involved and, to the best of my recollection, the Minister has not seriously questioned the method of sentencing in the Circuit Criminal Court. I do not think he has stated that one of the reasons for the transfer is inconsistency or any unhappiness that people might have about the Circuit Court sentencing. The record will show that two out of the three lengthiest sentences handed down to rape offenders have been in the Circuit Criminal Court. Therefore, it is not doing justice to that point for anyone to say that the sentencing policy by Circuit Court judges is not in the best interests of society. In the not too distant past, the Circuit Criminal Court imposed sentences of 14, 15 and 16 years for the crime of rape, which the High Court have not done to the same extent.

My major concern is the question of the delay. However, if the Minister states that there will not be a delay and if he is prepared to allay our fears by saying he will embark upon a programme of appointing High Court judges, I might be prepared to review it but there is a difficulty in the legislation as framed at present.

Mr. Burke

I am somewhat perplexed by the opposition to this section in view of what was discussed earlier in the Seanad, to which I will refer shortly.

The Law Reform Commission recommended that, in future, all rape and aggravated sexual assault cases should be tried in the Central Criminal Court. The Government agreed with this recommendation and decided that it should be given effect in the Bill. I should like to make it clear that this decision was intended to be seen as an expression of the seriousness with which the Government view the crimes of rape and aggravated sexual assault. It should not in any way be taken as a criticism of the Circuit Criminal Court or the judges in that court who have dealt with rape cases. However, I should point out that, as far back as 10 June, 1987, during the debate on the Cavan rape trial, speakers from both sides of the House advocated that the holding of rape trials should be in the Central Criminal Court.

As I said, the Law Reform Commission looked at this matter in some detail and, in their final report of May 1988, recommended that all rape trials be held in the Central Criminal Court.

Why am I perplexed about the attitude of the Opposition? When the Bill was debated in the Seanad all parties there were in favour of section 9. The then Senator Fennell — now Deputy Fennell — said in the Seanad debate of 15 December 1988, as reported in the Seanad Official Report, column 1486:

I welcome the Bill in general and, specifically, many of the proposals such as the change of venue to the Central Criminal Court for hearings.

I do not specifically mention the then Senator Fennell; she was supported in this by her party colleagues in the Seanad. She also welcomed the change in venue to the Central Criminal Court in her contribution on the Second Stage debate in the Dáil on 20 February 1990, as reported in the Dáil Official Report, column 2474. Therefore, Deputies will understand why I am perplexed by the opposition to this section.

The question of delays has been raised. There are no appreciable delays in the hearing of cases in the central Criminal Court and I have no reason to believe that the transfer of rape trials to that court will change the position. The President of the High Court will, of course, have to make a judge available for, more time in the Central Criminal Court to cope with these cases. The effect on the overall position in the High Court will become clear only after the arrangements have been working for some time and I propose to keep the situation very carefully under review.

I should point out that the delay sometimes associated with the hearings of civil cases in the High Court arise from a variety of factors which are not relevant to the hearing of criminal cases.

As to the question of the inconvenience of having rape trials in Dublin, at present in any rape trials the prosecution or the defence can opt to have the trial transferred to Dublin. My major concern is not the amount of inconvenience but the implications for the victims of rape. The legislation goes to considerable lengths to reduce the trauma and to protect the identity of the complainant and the holding of trials in Dublin can only serve to preserve her anonymity far more effectively than could be done if the trial was in her own home town.

In relation to the High Court, the transfer to the Central Criminal Court will add to the work-load, a point raised by Deputies O'Keeffe and Flanagan. However, the criminal work-load of the High Court has been decreasing since 1984 and the proposals would restore the criminal work of the High Court to close to their 1984 level. It seems, therefore, that the change will not give rise to any additional appointment to the High Court. However, I emphasise to Deputies — I understand their concerns about delays — that the matter will be kept under review by me in consultation with the President of the High Court and I will take whatever remedial action necessary in relation to the elimination of delays although I do not envisage them arising.

The whole emphasis of this Bill — and the emphasis which I am placing on it in relation to the transfer of these cases from the Circuit Criminal Court to the Central Criminal Court — is to clearly express the seriousness with which the Government view the crime of rape and aggravated sexual assault. I will, therefore, be opposing this amendment.

Mr. McCartan

I should like to briefly indicate the position of The Workers' Party to the proposed amendment. In principle we support the proposal contained in section 9 that from now rape and serious sexual assault offences should be dealt with exclusively by the Central Criminal Court. We will not support the Fine Gael Party in their proposed opposition to the section. That was our position as laid down in a response document to the Bill which we published in January last year. Our views have not changed. Since we made our views known, the former President of the Circuit Court, Judge Roe, issued a number of reasoned arguments as to why he believed this section somehow reflected on the integrity and performance of judges to date with regard to dealing with trials before the Circuit Criminal Court. Judge Roe must be acknowledged as a profound and committed defender of his court and jurisdiction of the time, among his many other attributes, but the experience of many victims in dealing with the crowded jurisdiction and workload of the Circuit Criminal Courts did not hold with his view of the efficient way in which they conducted their business.

The Circuit Criminal Courts outside Dublin by and large comprised one single court venue where on the first day of the sittings for that session all of the business would be gone through, and by tradition criminal business was taken first and civil business last. Whenever a jury trial was called for, there were groans of exasperation throughout the building from all of those practitioners who had assembled in the hope of disposing of civil or other business. Because of the complexity of issues in many cases, the criminal cases would tend to take up the lion's share of the time available to the sessions. I am alluding to this because the central issue here is not the question of the facility of the court prosecutors, representatives, advocates or witnesses, or the question of the delay. The central issue is to reflect, in the administration of justice, the gravity felt by the community and by the legislators for the heinous crime of rape and serious sexual assault. That is what we have to address. Whether or not the Law Reform Commission felt this was a central issue is neither here nor there. Certainly the Oireachtas Joint Committee investigating this matter felt it was a central issue.

We should transfer the exclusive hearing of those cases to the Central Criminal Court. If anything won the argument for the Minister or any of us who are arguing this, it was the Kilkenny case which was dealt with during the last year. We commented on it in this House before and I will not dwell on it but the notion in this day and age that a person would be given a suspended sentence and be able to walk free from court without having to spend time in a custodial institution for the crime of rape is almost, if not entirely, unanswerable. For those who argued that the Circuit Criminal Court should retain jurisdiction, that was the last nail in the coffin of any sustainable argument. We should try this formula and see if we can get over the practical difficulties that have been alluded to by Deputy Flanagan.

The issue of delay is a worrying issue, as is the idea that the workload of the Central Criminal Court will be unduly heavy. That argument must be considered. One of the things the Minister might consider is whether there is an argument, for this reason and others, for establishing an exclusive high court of criminal jurisdiction in the High Court as opposed to the formula of the Central Criminal Court being a sort of sub-station of the High Court's more general jurisdiction. We should consider giving a full statutory and administrative structure to a separate court of criminal jurisdiction at High Court level. That would involve the appointment for a limited period of a number of judges to the high court of criminal jurisdiction so that we would not have the situation that pertains at the moment, that the President waits until convenience will allow him to send off a judge to the Central Criminal Court to deal with criminal cases. There are periods when the Central Criminal Court does not sit at all, for example, when the High Court is on circuit at the civil side, usually at the beginning of each law term, when neither the Central Criminal Court nor the Court of Criminal Appeal sit because of the non-availability of judges or the convenience of the administration, or the practitioners at the Bar, as opposed to other considerations. Apart from the vacation gaps, there are other built-in gaps in the legal calendar when the criminal jurisdiction of the High Court is not exercised at all. That should be looked at.

There are a number of other related issues. The issue of exclusive jury experience being deposited in Dublin is something that should be looked at. Has the Minister considered the prospect of the Central Criminal Court sitting on circuit in the same way as its civil side of the High Court sits on circuit in different locations, as a means to deal with the trial in the provinces of rape and serious sexual assault? A trial is not, strictly speaking, a trial by one's peers if all juries are drawn from the Dublin area. Is there a prospect that the Minister might contemplate building into the legislation a process whereby the empanelling of the jury might take place in the circuit area in which the offence occurred and that the jury once selected would be sent to Dublin with the trial for the hearing of the issues? One of the notions that we build into the idea of a trial by one's peers is local knowledge, knowledge of even the geography and mores of the locality. All these things have a profound and important effect on the minds of the jury deciding facts. It is not right to ask Dublin juries to always determine issues of fact that relate to the provinces, be it Donegal, the west coast or anywhere outside the metropolitan areas where different cultural and social aspects apply. The Minister might look at the issues in this area by on the one hand addressing the question of the Central Criminal Court as it currently stands being empowered to sit on circuit, in Kilkenny, Cork and elsewhere or by introducing a device whereby juries can be empanelled locally and brought up to Dublin for the case.

Another point relates to the issue of bail. With regard to all trials where the offence by definition and requirement must be dealt with in the Central Criminal Court, there is built into the legislation an equal requirement that bail can only be determined by the High Court. Has the Minister addressed this issue with regard to rape? I see him nodding furiously to indicate that he has——

Mr. J. O'Keeffe

Section 18.

Mr. McCartan

I am sorry, it passed me by. I am happy that is the case. The issue of bail — which will be dealt with exclusively by the High Court — can be equally as important in the conduct of the pre-trial proceedings. By and large, those are the issues about which I am concerned in this context, but having said that, we should give this provision a trial run and accept the Minister's assurances, and hold him to them, that he will keep the matter under close review. We can overcome the tactical and other issues and problems which may arise, but it is only right that we should mark the gravity of the offence of rape and serious sexual assault today by giving the jurisdiction to process these trials exclusively to the Central Criminal Court.

Mrs. Barnes

It is important that we debate this section because it opens up the arguments for and against this proposal. All of us in this House would re-echo what the Minister said, that this highlights the gravity and henious nature of the offence and society's and the Legislature's attitude to such an offence. That is irrefutable and is one of the central points we have to remember.

The reason we on this side of the House asked some questions, put by Senators Jim O'Keeffe, Charles Flanagan and indeed Pat McCartan——

Mr. Burke

Deputies.

Mrs. Barnes

My apologies, that is a Freudian slip. I was thinking of the Minister's allusion to the Seanad debate. I am delighted to reinstate them and long may they be Members of this House. I better not insult the Seanad by saying anything further.

Mr. Flanagan

The Deputy proposed Deputy Bruton this morning.

Mrs. Barnes

With great alacrity——

An Leas-Cheann Comhairle

Is the Deputy indicating that power goes with her new position on the Front Bench?

Mrs. Barnes

I think it is a cause for my immediate demotion.

It is important on this section that the Minister would give an assurance — he has given such a commitment — that with the President of the High Court he will keep a very close eye on this issue. I would like to give two reasons for our concern and anxiety about this matter. In their submission to the Oireachtas Joint Committee on Women's Rights the Dublin Rape Crisis Centre stated at point No. 14 under the heading "Priority Listing for Rape Cases" that in their experience most women have to wait at least one year from the time of the incident to the court hearing and during that time the impending hearing is never far from the victim's thoughts. Indeed, it sometimes prevents her from recovering from this horrific experience. Based on their experience the Dublin Rape Crisis Centre recommended that in cases where the assailant has been apprehended at an early date a maximum time limit of four months from the date of the incident be placed on the hearing of rape and serious sexual assault cases. I would like to place on record, as my colleagues did last week, the fact that the Minister has met with members of the Dublin Rape Crisis Centre and paid great attention to what they recommended. This is a sticking point in so far as we have to be reassured, given their experience, that such delays will not aggravate the problems facing the victim, which we are desperately trying to alleviate. Everything in this Bill should reflect the experiences of the Rape Crisis Centres. That is a very big point.

Between 18 to 26 rape cases are processed by the courts annually. We are aware, and we have been told this by the rape crisis centres throughout the country, that the number of cases processed by the courts is only the tip of the iceberg and reflects the lack of confidence women have had in court procedures up to now. I hope that following the introduction of this Act and with improvements in the procedures we can expect a higher number of court cases. The projected figure must be taken into consideration. One of the advantages that could accrue from having cases heard in one court, apart from the standardisation of guidelines and sentencing, is the setting up of a trained team within the court which would allow victims to gain access to skilled counsellors and — this is one of the things the rape crisis centres would like us to ask the Minister and the courts to take into consideration — banghardaí or other female assistants who would always be available within the court to offer support and psychological help to the victim. There is always the chance if such help is available within one court it will be made available throughout the country.

What we want to highlight in the debate on this section is our anxiety and concern with regard to delays and the suffering the victim has to endure.

Mr. Kavanagh

I will be very brief as I find myself in agreement with both the Minister and Deputy McCartan on this issue. On Second Stage the Minister for Social Welfare, Deputy Woods, who made the case on behalf of the Minister who was unavailable that day, outlined the reason for the transfer of rape and serious sexual assault cases to the Central Criminal Court. He said that they were being transferred to underline the seriousness of that crime. We all agree with that proposal. Indeed, we have repeatedly said that rape is a serious crime and that we want that to be underlined in the Bill. We welcome the Bill for that reason.

On Second Stage I said I was concerned that delays could occur in bringing cases to the Central Criminal Court given the backlog of cases in that court. The Minister has reassured me that this will not be the case and that with the passage of time cases will be heard sooner and extra judges may be appointed to that court in order to speed up the work. I got the impression that because of the extra workload this change may bring about a reorganisation in the Central Criminal Court. Having been given that assurance we can only wait and see if this matter will be closely scrutinised as promised. We all hope that we will be Members of this House for a long time and that the Minister will retain his position for some time. If there happens to be a change we can remind the Minister — or whoever is Minister at the time — of the assurances given to this House and the reasons given for removing these cases from the Circuit Court to the Central Criminal Court. It is true that people in rural areas who have to be brought to Dublin will experience much inconvenience and trauma but, at the end of the day, if what the Minister has done underlines the seriousness of this crime then it is worth while. I hope the Minister will underline that assurance and also ensure that the trauma involved as a result of transferring these cases to Dublin will be reduced as far as possible. I hope he will ensure that these cases are dealt with speedily. Having been given that assurance we should accept this section of the Bill and not seek to amend it.

Mrs. Fennell

I am very pleased we are having such a debate about court procedure and what will happen when we come to bring these cases to court. It is important that the public are aware of the kind of detail the Members of this House are giving to this legislation. If they listened to RTÉ, following our last debate — which was very useful and important and contained a very fundamental change on the part of the Minister — I regret to say they would not have known anything had happened. This is a pity because I think there are many people out there who think we are legislating for castration, I am sorry to say, because a comment by one of my colleagues — which he had every right to make — was taken up in a very capricious and frivolous way. I have heard it on several programmes out of context and as a cause for joking. That is regrettable. When the debates for today is reported I hope the serious nature and the care with which Members are approaching this legislation will be reflected in such reports.

In legislation such as this I am always interested to listen to my colleagues with legal training and the legal profession. I must say Deputy McCartan took us around the various highways and by-ways of the various courts in the land and how and when cases are heard. That is something with which I will never become familiar.

I would like to refer to the apparent contradiction or difference in the approach that was taken in the Seanad from that taken in this House. I would say to the Minister it is important that we are totally open-minded on this legislation and are open to look at all the various aspects of rape, its reporting, the treatment of rape victims, the hearing of cases and the after-effects. I was very swayed by our discussions on this side of the House on the delay factor. The stress, the strain and the nightmare for women who have gone through this dreadful experience cannot be overestimated. During my time in the course of reporting as a journalist I remember speaking to two women who suffered from the crime of rape. I will never forget the sense of anguish I felt for one woman who was a young mother. It is cruel to leave women waiting to bring their cases to court. They should have priority. Of course, we understand the preliminaries must have been gone through and a book of evidence prepared — all of which is necessary — but I still cannot accept that it can take nine or 12 months before a case comes to court. It puts an unbearable strain on somebody who knows they have to go to court and relive in the court room the awfulness of what has happened to her. I agree with Deputy Barnes that we see only the tip of the iceberg. The number of rape convictions which ranges from 18 to 26 is very small and I am convinced does not represent the number of offences that take place. Many women, particularly young women, would feel they were powerless and that they would not be able to carry through on reporting rape and they grin and bear it and go away and suffer for the rest of their lives.

I am happy with the Minister's commitments and his assurances that the delays will be reduced as far as possible. We accept he cannot do the impossible. If it is necessary to appoint more judges I appeal to him to do so. I appeal to the Minister, so far as he has influence on these things, to think about more women High Court judges and perhaps we will put in a caveat to provide special training. I am not saying that those who sit in the High Court are not men and a woman of wisdom and care, etc. but people in such an important job are being asked to do the impossible without special and ongoing training. I know it is possible for them to do special training themselves. A special programme of training should be provided for judges. I have been reassured by the Minister's assurances. We must get rid of the long delays for trials, which we have seen in the past, for rape cases.

There is one other point I would like to make. I spoke in the Seanad about the need — and I think it has been referred to in the debate here also — to enable the State to appeal where there is too lenient a sentence. We have also heard about the suspended sentence for rape. Can the Minister tell me how that is possible? I know a convicted person has the right to appeal his sentence if it is perceived as too high. There have been cases of this in the past where there has been public outrage. Can the State apply for an appeal in that instance or is there any machinery by which that can be done?

Mr. Burke

In relation to the last point, an amendment has been put down and we will deal with it later. The question of delays, as I said earlier, is one which I will keep under consideration and, if necessary, I will have a consultation with the President of the High Court and if alterations have to be made they will be made. Regarding the priority listing which was mentioned, my understanding is that the President of the High Court affords all criminal cases going before the court priority vis-á-vis civil cases.

The central issue which the Government are determined to get across in this legislation is the seriousness with which we view the crime of rape and aggravated sexual assault. To give an indication of that seriousness it is intended, as per this section, that in future trials will be heard before the Central Criminal Court. We will deal with the question of bail later.

Regarding the question raised by Deputy Barnes of support services, I can assure her I will have discussions with the Garda Commissioner in relation to the presence of a bangharda at all times in relation to these cases because I think it is vitally important. In discussing this issue, what we were doing the last day and what we are attempting to do today also is to recognise that as well as the physical damage there is also the psychological damage and the trauma a rape victim experiences. We need to recognise that in our legislation and within our support services.

That is why I brought forward the major amendment to section 4 the last day. I join with Deputy Fennell in expressing my regret that that aspect of what I thought was an excellent debate in this House the last day did not receive the type of attention which I believe it should have received. We are dealing here with very serious legislation but unfortunately it was a side show — if I can describe that contribution as such — which seems to have received public attention rather than the serious contributions made by Deputies on all sides of the House to the debate.

Mr. Flanagan

In view of what the Minister has said I want to formally withdraw our opposition to section 9. Deputy Liam Kavanagh's contribution represented what could probably be described as an honest brokerage position but perhaps he read a little too much into what the Minister said. I did not hear the Minister say that he was embarking on a recruitment drive in the High Court, but I am prepared to accept what the Minister has said rather than divide the House on this issue. I accept that this is a very serious matter, it is a section of no small importance. In view of what the Minister has said regarding the delays and that he is prepared to watch the matter closely — and I am sure he is keen to ensure that we on this side of the House will also closely monitor the matter — we will not be opposing section 9.

Question put and agreed to.

SECTION 10.

Amendment No. 18 not moved.

Question proposed: "That section 10 stand part of the Bill."

Mr. Flanagan

I want to refer briefly to section 10 which provides for the exclusion of the public from hearings. While I do not think this section goes far enough I do not have an appropriate amendment to deal with this and I hope the Minister will consider my remarks on the section.

In addition to the holding of these cases in camera, there are other matters which I regard as being essential. These matters need not necessarily be included in the legislation but perhaps the Director of Public Prosecutions or the entire prosecution team will take them on board. We have just agreed a section which will transfer all cases to the High Court in Dublin. It is very important that the victim in such a case is given a form of familiarisation course on the lay-out of the court, the functions, the various roles and representations involved in the holding of a court case. We have dealt at great length with the trauma a victim experiences and I believe some form of course must be given to a victim in terms of procedure, lay-out and meeting with police officers prior to the exclusion of the public from a hearing, etc.

A good relationship must be built up and maintained between the Garda and the victims in regard to such matters as access to a copy of statements, contact with counselling services and the progress report on a case prior to a hearing. People have referred to the six or nine month delay in regard to such matters and it is very important that the victim is kept fully informed at all stages of what is happening, the various stages involved, the likely date on which a hearing may take place and the detection process. A pre-trial consultation, a meeting with witnesses, an exchange of views and going over the evidence in so far as one can do that is extremely important. The role of the prosecution must be more then merely laying the case before the court. The prosecution and the victim must work in tandem as far as possible. There are also pre-court and post-crime procedures which could be adopted. However, more often than not a victim is left entirely in the dark.

While the holding of a case in camera is welcome and of fundamental importance, if we believe that the holding of a case in camera is as much as we can do to help the victim we are mistaken. While giving a broad welcome to section 10, I believe we can do far more to aid and assist the victim rather than leaving it and the case being held in camera. I hope the Minister will give some thought to my comments.

Mr. Burke

While it is not relevant to section 10, I welcome the opportunity to put it on the record that in future the Director of Public Prosecutions proposes that when it has been decided that a case is being prosecuted on indictment and a Book of Evidence is being prepared, all proposed witnesses, except gardaí and certain professional witnesses, would be sent a copy of their statement on which will be endorsed a request to study it carefully and notify any alterations or additions which the witness may wish to make to a named prosecuting lawyer, usually a State solicitor. This will be in addition to the complainant receiving a copy of his or her statement at an earlier stage.

It is further proposed by the Director of Public Prosecutions that a pre-trial consultation will be held with all witnesses at which they would collectively be asked if their evidence would correspond with their statements and, if not, to specify variations. Of the proposed arrangements, only the supplying of the statements to the witnesses has so far been implemented to any extent. However, it is hoped to implement the arrangements in full very shortly, and in particular with the passage of this Bill. This will ensure that in sexual cases there will always be contact between a complainant and the prosecuting team. In addition, what I could describe as a familiarisation course wil be made available to the complainant in sexual cases in which the lay-out and the procedure of the court will be explained to her and in which she will be advised in very general terms of the type of questions which she might be asked.

I am sure that these arrangements will go some way towards reducing and relieving the trauma and anxiety of the victim which are inevitable in trials of this nature. There is a need for the greatest attention to be given to the position of a victim who has gone through the horrendous experience of an assault and who then find themselves in completely strange surroundings facing the accused. That is what is intended here, and I gather it is what Deputy Flanagan had in mind. I can assure the House that that is what we are trying to do.

Mr. McCartan

We have opened up the debate under section 10, which deals with how trials of rape and serious sexual assault cases should be conducted. Section 10 proposes the almost complete exclusion of the general public from the hearing, admission being only at the discretion of the trial judge. I believe this is prompted by the desire to make the surroundings and conditions of the hearing conducive to the victim and any other witnesses being called in evidence, so that they would be at ease and in a position to give free and voluntary evidence to the trail.

I would like to refer briefly to amendment No. 15 in my name which deals with one of the related issues which has now been mentioned by the Minister and Deputy Flanagan, that is, how the victim might be dealt with at a trial. I accept that the Ceann Comhairle has ruled my amendment out of order, and I do not seek in any way to challenge that. Nevertheless the Minister might look at this important issue of legal representation on Report Stage. The case has been very strongly made to him by the Rape Crisis Centre and the issue has been pursued with an unerring commitment by people active in the field. It deserves attention here. The Ceann Comhairle has come to the conclusion that my amendment should be ruled out of order in that it involves a potential charge on the Exchequer. As a member of the Opposition I am not in a position to move such an amendment. I had attempted to avoid this difficulty by suggesting that any legal advice would come from the free legal aid scheme, but of course if the workload is increased the cost to the Exchequer will be increased indirectly. My hands are tied but I am asking the Minister to look at the issue. In view of the concern he has expressed, he might come back with a formula on Report Stage. It is an issue which will not easily go away.

While the Minister has a desire to lay down rules and directives on work practices, the matter is entirely outside his control and he cannot lay down how prosecutors will conduct their business in advance of the trial or on the day of the trial. The Director of Public Prosecutions is independent in his office and cannot be told by the Minister or by any Member of this House to lay down guidelines for the employment of counsel in court. In any event, counsel in court consider themselves to be independent of the office of the Director of Public Prosecutions. They are instructed through the Chief State Solicitor's office, accept the brief and then work independently of all. They are answerable only to the rules of ethics and of the courts.

While the Minister would like to see certain work practices such as pre-trial consultation with the victim about his or her statement, about the conduct of the trial and the witnesses to be called, there are two hurdles, namely the independence of the office of the Director of Public Prosecutions and the less emphatic but very definite fact of life, the view of the Bar that they have their own rules of etiquette and that the Director will not tell them how to conduct their business. The view of the Bar is that contact between the prosecuting counsel and the victim must be kept to a minimum because they should never leave themselves open to the suggestion that they would in any way coach or prepare unduly the victim for presentation at the trial. There are real difficulties here. While respecting the Minister's intentions, the position of the Director of Public Prosecutions and the rules of practice at the Bar, the importance of the concept I advocate in this amendment deserves consideration by the Minister. I hope he will indicate that he will return to this matter on Report Stage.

Mr. Burke

I am very conscious of the trauma that can be endured by a complainant during a rape trial. In many ways she may feel that she is on trial and I can understand that she would wish her point of view to be put forward. This is the intention behind the amendment which Deputy McCartan has been discussing.

The question of separate legal representation for complainants was examined by the Law Reform Commission and very strongly rejected. They raised the question of the constitutional propriety of the proposal and referred to the serious uncertainty as to the effect it would have on the trial of such cases and the possibility that it might so complicate the hearing and alienate the jury as to result in the unjustified acquittal of the accused. The Government, in the light of the Commission's recommendations, decided against the provision of separate legal representation.

The Law Reform Commission were of the view that this problem could be adequately redressed within the confines of the existing system. That was the approach I advocated earlier in relation to the Director of Public Prosecutions. In the real world the Director of Public Prosecutions can talk to his prosecuting team. The procedures I have outlined which it is intended to follow are being drawn up and will be put into operation. It would be ludicrous to suggest that the Director of Public Prosecutions would lay down guidelines for his own prosecuting team which they would refuse to obey. They might refuse in one case but he has the right to keep his prosecuting team and it is highly unlikely that they will go against him.

Against the background of the consciousness of the trauma that is endured by a complainant during a rape trial, it is important that in advance of the trial there should be familiarisation courses available during which the layout and procedure of the court would be explained. The victim should be advised in general terms of the type of questions she might be asked. The intention is to remove the psychological pressure of going into a courtroom for the first time and being faced with the accused. We want to ensure the maximum possible assistance, comfort and reassurance to the victim of the horrendous crime of rape or aggravated sexual assault.

Mrs. Barnes

I welcome the amendments regarding familiarisation with the procedures. This is the most frightening and alienating experience of the rape victim.

This part of the Bill is very important. We applaud the exclusion of the public from hearings, except for named people. In the interests of reporting and making public the court procedures it is important that we allow bona fide representatives of the press to attend. I do not know whether the Minister can do anything in this regard but studies here, even of the most cursory kind, and indepth studies carried out in Britain by the press show that rape cases are used as sheer titillation by the majority of the press. The most salacious and sometimes damaging aspects of the case are headlined, without the feelings of the victim or of the alleged rapist being taken into account during the court proceedings.

Recent evidence of the monitoring of rape cases in Britain — shown in a television programme recently — demonstrated that the reporting of the salacious and sexual aspects in the tabloids there — if I may describe it as such — was covered fully. Yet two newspapers only within the overall national press in Britain carried through a process of reporting, not merely the court proceedings but the actual evidence taken and final result. This demonstrated the total lack of importance attached to the court proceedings, indeed to the victim and even the alleged assailant. It clearly showed that the press overall were not interested in reporting the case as a legal process or even for the common good but did so merely to gain cheap headlines, very often at the expense of the victim.

Some group would appear to be endeavouring to do something about that aspect vis-á-vis our press; perhaps this is not a fault of our national press. However, I have been sent many headlines, pages of provincial newspapers that have reported local rape cases and in my view, the only future for the victim would be to emigrate or to move from that area because of these damaging press reports; they even reported alleged conversations and so on. We are here endeavouring to minimise the trauma on potential victims, yet in this press coverage that trauma has been maximised causing victims enormous suffering.

I agree with much of what Deputy McCartan had to say in regard to his amendment which was disallowed. I know the Minister is aware of the importance the rape crisis centres attach to separate legal representation for victims of rape in court proceedings. Without delaying our Committee Stage discussion, I too would call on the Minister to give great thought to that aspect before Report Stage. In support of that request I might give the Minister the benefit of a little information.

In October 1987, as Chairwoman of the Oireachtas Joint Committee on Women's Rights I had a meeting with the Director of Public Prosecutions, Mr. Eamonn Barnes. Subsequently he made a public comment with regard to his ideas on the reform of the law in regard to rape. The first thing he had to say was that he recognised he did not have any real authority in regard to reform of the law, saying that changing the law was a matter entirely for the Government, the Department of Justice, the Law Reform Commission and the Oireachtas. He went on to say that, in regard to this area of legal representation — from his experience — in rape cases where the defence lawyers may be allowed, at the discretion of the judge, to question the woman about her previous sexual history, there could be a case made for permitting another lawyer, not the prosecuting counsel, to represent the woman at that stage. He said he would not be in favour of a third legal team from start to finish but said that this limited form of representation might help to safeguard the position of the victim and argue her side of the case so that the woman would then be, and be seen to be, properly represented. I pay great attention to that public comment of the Director of Public Prosecutions which he made available to a national newspaper.

I would strongly urge on the Minister how important it is that a victim be properly represented, and, even in such circumstances, we should take on the costs from start to finish and perhaps even conflict between the legal procedures of defending Counsel. In saying this I believe I am reflecting the enormous concern not merely of the rape crisis centres but also of future victims of rape. I refer to the fact that it has been accepted in natural justice that a judge may, at his or her discretion, decide that the sexual history of the victim would have to be gone into although the sexual history of the defendant cannot be investigated. Perhaps the Minister would give serious thought to special legal representation for the victim at that part of the trial.

Mr. Burke

In relation to the last point I might say that the judge and prosecuting counsel are already under a duty to protect the witness from unfair or irrelevant cross-examination. The existing legislation, being strengthened by this Bill, includes further restrictions on the right to corss-examine a complainant on her previous sexual experiences, a restriction which I believe to be very important. Coverage of rape cases by the local media takes us back to section 9, in that we would be in the Central Criminal Court, away from the type of local coverage that has existed heretofore. In defence of our national media I should say they have been very responsible in their coverage of rape cases.

I have already outlined what the Law Reform Commission have said and the strong view they took on this matter. In the light of the recommendations of the Law Reform Commission the Government decided against a provision on separate legal representation. However, I might point out that the Law Reform Commission, in their consultation paper, said that it is already perfectly permissible for a woman who has been raped to consult a lawyer and to bring a lawyer with her, in the capacity of a friend, to the court during the hearing of a trial. Therefore, a woman has that right as of now.

I am studying this area of the law as it pertains to the provisions of this Bill and all that is contained in them, particularly for Report Stage. I am not sure what I may be able to do to meet some of the points Deputies have raised in the area of sentencing. When one gets to the sentencing stage various people doctors, sometimes clergymen, friends of the accused, perhaps employers and others — are brought into court to give the defendant character references which might have an influence on sentencing.

One aspect I feel has not received fair consideration — and I have discussed this with a number of people who have been involved in these cases — is the rights of the victim in regard to the trauma she may have suffered in relation to the sentencing. I am thinking of the right of a doctor to come forward and say that as well as the accused having been found guilty, this victim has suffered such psychological damage it will remain with her for X amount of time. I had a discussion recently with the mother of a young girl who had gone through this experience. The mother had been in court and, as she described the proceedings to me, she said she had wanted to scream to get the point across of the damage that had been done to her daughter while, on the other side, a case was being made about the character of the accused, the effect prison would have on the accused and so on, but nobody was defending the position of her daughter. That is a very serious matter.

I do not know what I will be able to do about that. However, I can give the House my assurance that I will examine it and give my further comments on Report Stage.

Mrs. Fennell

In his last comments the Minister has summed up exactly what those of us who have been seeking independent legal representation for victims would have said, and indeed what the rape crisis centres have reiterated. They have highlighted the fact that the victim, the witness, sits rather helpless, tending to feel isolated and marginalised throughout the whole of the court proceedings. The Minister has explained the feeling in a rather graphic way, indeed what the mother of the girl to whom he spoke felt.

May I ask the Minister whether what he read into the record will form part of the regulations to be made under the provisions of this Bill? Perhaps he could explain that matter more fully. I do not know if it is going to meet the perceived needs of the Rape Crisis Centre. Perhaps we were best to agree to these proposals. I accept the Minister made them very well-meaningly and perhaps we should see how they work. In my opinion this will be a long way removed from the existing situation. If in the course of time it is deemed as not going far enough perhaps we can look at it again.

I think we have gone on to an amendment that has been ruled out and we are really discussing section 10. It is very welcome that this is going to be an absolute procedure, that the cases will be heard in camera. I have a couple of questions on that. Will it be possible for either team, prosecution or defence, to challenge some person who is in with one or other? The provision is for “a parent, relative or friend of the complainant”. Will there be rules on this court procedure subsequently? Will one be able to object and want all those attending the court to be accounted for? I am wondering out of curiosity. Family law cases have been heard in camera for some years now and there are no newspaper reports on them. Why is this different? We have to have media reporting of cases, but by what rationale can you say they are excluded from family law cases with the same requirement that anonymity is respected, and not excluded in this case? As my colleague said, you have to go down the country and buy a provincial paper to read the gory details of reported rape cases. I am always amazed at the incredibly gory detail that is reported particularly in papers outside Dublin. The national papers have a very responsible role which they play well.

I welcome this provision and I am happy about it. I hope there will not be challenges to anyone who might reasonably want to be present with the victim.

Miss Flaherty

I welcome the Minister's indication that he is going to look further at this section on Report Stage. While he has indicated he will go in a certain direction, I share the views expressed by my colleague here that full legal representation would be by far the most desirable reform. Let the Minister be in no doubt that as long as he goes in that direction we are happy. Only this morning while I was at the hairdresser's I read in Cosmopolitan a little article by a woman who had been raped. She said her problem started once she had got past the sympathetic female police officer who interviewed her initially. Immediately she encountered the traditional police interviewing and was asked very searching questions about her motives and involvement. Uniquely, compared with any other victim, the rape victim's problems start early on in the whole process of dealing with a case. Therefore, the right of legal representation is one all those who have been directly involved see as extremely important. I support the case being made in relation to this and I ask the Minister in his further deliberations before Report Stage to go as far as possible down that road.

Mr. Burke

I do not want to mislead the House. I emphasised that the question of separate legal representation was examined by the Law Reform Commission and was strongly rejected by them. I had gone the road of discussions with the Director of Public Prosecutions with a view to having improved familiarisation and care and attention given to the victim of rape. I have my personal views on the situation of the victim at sentencing time, that is a specific point within the hearing.

The question was asked as to why discretionary power was being given to persons other than officers of the court, those directly concerned and the press to attend proceedings. In all proceedings other than where applications are made under sections 3 or 4 of the 1981 Act, officers of court, persons directly concerned in the proceedings, the press and a friend/ parent of the complainant and of the accused, if under 18, will have the right to be present. However, there may be circumstances where persons other than those just mentioned may wish to attend the proceedings and have a valid reason for doing so. For example, there may be persons involved in research of a legal or scientific nature. It may be desirable to have a medical person present if a person involved in the proceedings is unwell. It would not be feasible to foresee and list every such circumstance, therefore the court is being given discretion to decide what other persons may attend in the light of the circumstances in each case. This follows the pattern as provided for in section 20 of the Criminal Justice Act, 1951.

Mr. McCartan

The Minister has indicated he will be looking before Report Stage at an aspect of representation in the area of sentencing. I ask him to look again at what I suggested in my amendment. I do not go as far as the cause of the Rape Crisis Centre to the extent of saying that representation should involve a right of hearing or a right of argument at trial. That is why subsection (2) of my amendment provides they would have the right of consultation. The Minister pointed out correctly that a victim has the right to bring a friend by way of lawyer to court. That person clearly would be someone allowed in by the judge throughout the hearing.

However, there is the question of cost. Lawyers do not come without price and I suggest in the amendment that any such befriending or accompaniment might be provided through the legal aid scheme. In my view it would not represent a very onerous imposition on the existing scheme or on the Exchequer. Therefore, the Minister might look at it, recognising the right to bring the friend along as a lawyer, or a lawyer as a friend, whatever way, it is. He might look at the question of extending legal aid in that area. It would require changing the regulations in a small way.

Regarding the right to be consulted, even though the friend as lawyer or lawyer as friend would come along he or she might not and would not necessarily have the right to approach privately or discretly the prosecution or the Garda and ask where the case was going and what was happening. The Minister might consider giving them that right in addition to the right of being present. However, I am not arguing for that. I do not go the full distance in regard to it because I acknowledge the constitutional and pragmatic problems of the conduct of trial that the Law Reform Commission rightly talk about. I make the point that my amendment does not suggest anything of the sort. There are one or two aspects the Minister could bear in mind in looking at the Bill for Report Stage.

Mr. Burke

I will be pleased to look at that matter in relation to the legal representation and the cost of that in the number of cases involved. I will glad Deputy McCartan has made the point that major constitutional questions were raised by the Law Reform Commission in relation to the right to participate in a trial. I do not see that I will be able to include that but I am prepared to look at the question of examining the possibility of altering the regulations to facilitate the situation that prevails to allow a person who is a victim, who has been raped, to consult a lawyer and to bring the lawyer with her in the capacity of a friend to the court during the hearing of the trial. I am prepared to look at the cost involved in that under the criminal legal aid scheme and I will report back to the House on Report Stage. I am very anxious to see that when we bring this legislation through the House it will be as caring and victim orientated as we can possibly make it, and that is what we have being striving to do. I believe also that the new rules and regulations and familiarisation programme being laid out by the DPP will go a long way towards meeting some of the concerns and the trauma of the victim.

Deputy Fennell asked about the press. Normally the press are not allowed attend in camera hearings. However, I feel it is important that in rape cases the public should be made aware that such crimes are prosecuted and what the outcome of those prosecutions are. It is important that the public should know not just of the actual crime but that there is a follow up prosecution, that the person who is found guilty of it faces the full rigour of the law and that the press be there for that.

Section agreed to.

SECTION 11.

Amendment No. 19 not moved.

Mr. Burke

I move amendment No. 19a: In page 5, line 48, after "‘aggravated sexual assault"', to insert ",‘rape under section 4'.".

Amendment agreed to.

Mr. Burke

I move amendment No. 19b:

In page 6, line 6, after "incitement to rape", to insert "and, other than in sections 2 (2) and 8 of this Act, rape under section 4, attempted rape under section 4, aiding, abetting, counselling and procuring rape under section 4, or attempted rape under section 4 and incitement to rape under section 4".

Amendment agreed to.

Amendments Nos. 20 to 22, inclusive, not moved.

Section 11, as amended, agreed to.

SECTION 12.

Mr. Burke

I move amendment No. 23:

In page 6, line 24, to delete "offence" and substitute "assault".

Amendment agreed to.

Mr. McCartan

I move amendment No. 24:

In page 6, between lines 33 and 34, to insert the following:

"(1A) All such applications for leave of the judge under subsection (1) shall be made at the commencement of the trial, in the absence of the jury, and shall require the person making the application to call such evidence and lay such facts and arguments before the judge to justify the making of the application.'.".

This amendment speaks for itself and proposes that where the defence are contemplating bringing up previous sexual history and other related matters, they be dealt with on a single application at the commencement of the trial and in the absence of the jury. This is to ensure that this issue is determined at the outset and that the victim knows his or her position on entering the witness box and is not faced with the defence, half way through the prosecution, changing direction because they are not making progress in one particular direction, namely, towards issues of fact, what occurred on the occasion of the alleged rape, and going after the good character of the victim on the basis of his or her previous sexual behaviour.

We believe that the springing of the tactic of going after the good character of the victim is fundamentally unfair, often encapsulated by the victim coming out of court and saying that the cross-examination, the surprise element, the trap and all that were worse than the original heinous act itself, the subject of the trial. We are proposing that such applications, where they are contemplated, should be made at the commencement of the trial so that the lines are clearly drawn so that the victim who is subject to the pressures that a trial necessarily draws down on him or her, goes into the witness box with some indication of where he or she will stand with regard to cross-examination.

We are putting this amendment forward on the basis that there is a fundamental difference between cross-examining a person with regard to facts that happened on a particular occasion and cross-examining that person with regard to their previous, often unrelated and far removed experiences in the past with the defendant or indeed with anyone else. We can differentiate between the trap or surprise being brought on an issue of fact and that of seeking unfairly, having brought the witness into the witness box and having gone in a certain direction, to change course in mid-stream seeking to make the witness in the witness box ill at ease.

I believe this is a fair proposition and one that should commend itself to the Minister. It is one that has been strongly argued for and the reasons for it better put by people who know more about this than I or anyone else arguing here.

Mr. Burke

When this Bill was being drafted consideration was given to including a provision of this type. However, it was decided not to do so because it could impose unfair restrictions on the defence and it would not be of great practical benefit to the complainant. In any event it is undesirable that such an application be made in vacuo and outside the context of the trial and evidence. There are all sorts of practical disadvantages in having the application made in advance of the trial.

Also a provision of this nature would be likely to promote such applications which, according to the Law Reform Commission, have been very few in number since, if there is any theoretical possibility that the defence may wish to resort to this option, counsel would have to protect his client by applying on a contingency basis. The application, at least in most cases, would be of a hypothetical nature. If an application were to be refused before the trial commences matters may emerge in evidence which would alter the position.

It would appear, in any event, that the amendment put forward by the Deputy would be unfair if not unconstitutional as it does not allow an accused person to make an application during the course of the trial in any circumstances. The Law Reform Commission, in their recommendation, were very careful to ensure that such an application could be made during the course of the trial, but the special leave of the court would be required. One could easily envisage circumstances where information might come to light in the course of the trial which was not available to the defence at the outset and which would justify an application. To prohibit such an application, as Deputy McCartan proposes, in all circumstances would strike me as an unjust and undue interference in the right of the accused person to conduct his defence. I, therefore, have to oppose the amendment.

Mr. McCartan

I want to come back briefly on this because were I to remain silent my silence might be interpreted as agreement with the last words spoken.

I acknowledge that the Law Reform Commission say that the application should normally be made. That is their recommendation. We, as legislators, have to see if that can be translated into a provision that will fit neatly into a statute. On behalf of The Workers' Party I adopted the position that an absolute decision on this should be made at the beginning of the trial because I believe it is a net issue. There is the victim on the one hand and the defendant on the other and this should be an issue well capable of determination at the outset or well before any trial. It should be possible to determine whether there are previous relationships, facts or information available to the defendant that would justify the defendant raising this issue of previous sexual behaviour at any stage of the trial.

It is not something that can emerge, if one likes, out of a fishing expedition, and should never be facilitated, in the conduct in the course of a trial. That notion of a fishing expedition was put to bed a long time ago — since 1981. We have got away from this notion that it is fair game to go in there and find out everything possible about the woman — always the woman heretofore — by firing in the old gratuitous question about previous sexual relationships. We have got away from that. I am saying there is an issue here as to whether rape has been committed and one is then talking about whether there was consent. The defendant should, in my view, be well armed in advance of any trial of all the information relevant to this issue or question of previous sexual behaviour. Consequently there should be a global application that can be held in reserve. Supposing they have information but are not clear whether they should use it, they can get clearance from the judge at the outset on that issue. The defence will know where they stand but, more importantly from our point of view, victims will know where they stand. The defence will have this information in their armoury and can elect at the appropriate time to use it.

The idea of putting the victim into the witness box where she or he is on their own, and then springing the trap on them is unsatisfactory and unacceptable. For that reason the argument that one should allow the trial run its natural course is too clever and is tilting the balance unnecessarily. The proposition that I have advanced might be better subject to a proviso that special leave can be sought from the judge. I would be happy if the Minister indicated that he will consider this matter before Report Stage. However, I am convinced that the issue is a net one, does the defence have information that justifies the pursuit of this type of issue? If they do they disclose their hand at the outset, get permission from the judge and then decide during the course of the trial whether they will use it. The amendment is a worthy one. I am not dissuaded by the fact that the Law Reform Commission have brought in a rather inelegant term, "should normally be made". What is "normal" and what is not "normal"? How would a judge work on that? The Minister should consider this before Report Stage with a view to including the proviso, "subject to special leave of the court during the conduct of the trial". I will be happy to withdraw on that basis.

Mr. Burke

Lest the final word might be seen as assent, I would emphasise that there can be no question of springing traps as was mentioned. All such applications must be made to the judge in the absence of the jury to protect the interests of the complainant and therefore, there is no question of springing traps. As I have said, detailed consideration was given to this. The Attorney General was strongly opposed to the proposal to include it and I agreed with him. He pointed out that it was not practical to determine such an application in advance of the trial. He thought it would be inevitable that the trial judge would adjourn his decision to the appropriate stage in the trial. The proposal would compel the accused person to decide on the form of his defence before the prosecution had adduced any evidence at all. It would seem that the defence would have to make such an application in every case just to keep their options open. Even if the judge decided against the application at the outset, matters could unfold during the trial which would force him to reconsider the application during the trial.

Even ignoring the practical difficulties that would arise, and without going into the possible constitutional implications of its effect on the conduct of the defence of the accused, there does not appear to be any great advantage for complainants in insisting that such applications are made at the outset of the trial. I would remind the Deputy that all such applications must in any event be made in the absence of the jury to protect the interests of the complainant. Therefore, the question of somebody springing traps on the complainant in the witness box does not arise. That would be unacceptable in the context of the legislation and the care aspect that was fundamental to our thinking in the drafting of the legislation.

Mr. McCartan

In those circumstances, and for the time being, I will withdraw the amendment. I would like to come back on Report Stage with an amendment incorporating a proviso giving discretion to the trial judge. Hopefully, by then the Minister might be persuaded to change his mind. I accept that my amendment is too absolute and, therefore, I withdraw it.

Miss Flaherty

If the Minister's thinking is to stand, the previous sexual experience of the victim might be raised. With changing behavioural patterns in our society many victim are likely to have had previous sexual experience which may or may not be relevant to the case. This raises the issue dealt with in the last section which is the need if not for legal representation certainly for legal advice. The handling of this issue would be crucial to the outcome of any trial. The Minister said he might consider the issue of advice as distinct from assisting a victim to gain access to advice. This is another matter that would be central to the case and advice would be absolutely vital in the context of a victim versus a skilled attorney. It emphasises again the issues raised in the last section.

Mr. Burke

The amendment is being withdrawn but as the Deputy will be aware — we discussed this matter on another section — the judge and the prosecuting counsel have a duty to protect a witness from unfair or irrelevant cross-examination. The existing legislation, which we are strengthening by this Bill, includes further restrictions on the right of cross-examination of a complainant on her previous sexual experience, for the reasons the Deputy has outlined. We are going to great lengths to ensure that these restrictions are written into this legislation.

Mr. Flanagan

I would like——

An Leas-Cheann Comhairle

The amendment is being withdrawn and in those circumstances is there much point in continuing to discuss it?

Mr. Flanagan

We will have another chance to discuss it on Report Stage.

Amendment, by leave, withdrawn.

Section 12, as amended, agreed to.

SECTION 13.

Mr. McCartan

I move amendment No. 25:

In page 6, between lines 42 and 43, to insert the following:

"(9) Save that nothing in this Act or the Principal Act shall do or permit anything to be done that might lead to the identity of the complainant being publicly known.".

Under section 7 of the 1981 Act, which deals with the anonymity of complainants, residual authority is vested in the trial judge that in the public interest he may direct that detail be published that could potentially lead to the identity of the complainant or victim becoming known. The term "in the public interest" is too loose, non-specific, and is a cause for concern. There should be an absolute prohibition against information being released under any circumstances that would lead to the identity of the victim or complainant being known publicly. For that reason the proposal which I put forward on behalf of The Workers' Party should be included. That would ensure that nothing would be done that might lead to the identity of the complainant being publicly known. That is a very important assurance that a victim should be given when facing the difficult time of attending a police station, giving a statement, attending for examination and, ultimately, attending the public trial. She, or indeed he in time, should be assured that in coming forward to make a complaint and give evidence their identity will not be made known publicly.

Mr. Burke

Section 13, which amends section 8 of the Principal Act, deals with the anonymity of the accused. Under the existing law, there are restrictions on the publication or broadcasting matters likely to identify a person accused, but not yet convicted, of rape. At present these restrictions may only be lifted on the application of the accused himself or another person charged with the rape offence at the trial. Although it has not yet happened, as far as I am aware, circumstances could arise where a person charged with rape might escape from custody before the conclusion of the trial and it would seem absurd that, in such circumstances, information which might lead to his apprehension would not be published because of the provision of section 8 of the Principal Act.

Section 13 of this Bill, therefore, proposes that the restrictions on the information regarding identity of the accused could be lifted on application by the Director of Public Prosecutions. As I said, this provision deals only with the anonymity of the accused and has no direct implications for the anonymity of the complainant. Apart from the fact that the amendment is technically faulty, a blanket prohibition of the type proposed by him would not be acceptable in any circumstances. Indeed the proposed amendment would directly contradict section 7 of the 1981 Act.

The fact that a husband can now be convicted of raping his wife has, however, caused me to look again at the anonymity provisions to make sure that they are watertight, particularly with regard to maintaining the anonymity of the complainant. I am satisfied that these provisions are generally satisfactory. I say "generally" because I have some reservations about two matters. First, section 8 (2) of the 1981 Act allows an accused to apply to a court to have his anonymity lifted for whatever reason he wishes, but the section does not give the judge any discretion in the matter. The provision may need some tightening up to ensure that the lifting of the accused's anonymity does not also, unwittingly, lead to the complainant's anonymity being lifted.

The second matter which might need to be looked at results from the fact that the anonymity of the accused does not last beyond conviction. While section 7 of the 1981 Act respects the anonymity of the complainant it clearly continues to apply even after an accused has been convicted, but the reference to the acquittal only of the accused in section 7 (4) might give the impression that that provision has no application after a conviction. Perhaps section 7 (4) should merely refer to the outcome of the trial. I will look at this matter and I will refer to it again on Report Stage. It is a question of making it watertight, which is what we want to do.

Mr. McCartan

In the spirit of trying to make matters better and because there is a suggestion of some drafting impropriety — although I am not too clear about that — I will withdraw my amendment and come back to it on Report Stage in consultation with the Minister.

Amendment, by leave, withdrawn.

Section 13 agreed to.

Section 14 agreed to.

NEW SECTIONS.

An Leas-Cheann Comhairle

Amendment No. 26, in the name of Deputy McCartan, has been ruled out of order. He may move amendment No. 27.

Mr. McCartan

I move amendment No. 27:

In page 7, before section 15, to insert the following new section:

"16.—(1) The Director of Public Prosecutions shall be entitled hereinafter to appeal to a higher court all sentences, imposed under this Act or the Principal Act, which he considers to be unduly lenient or inappropriate.

(2) A higher court shall mean in respect of all matters heard before the District Court, the Circuit Court and in all other matters the Court of Criminal Appeal.

(3) Application for leave to appeal against an unduly lenient or inappropriate sentence shall be made by or on behalf of the Director of Public Prosecutions to the trial judge at the conclusion of the hearing or within seven days of the conclusion.".

This is a vitally important issue and I am glad we are getting the opportunity to address it here in the context of this Bill. I was worried that we might not have got this far and I hope that the proposition here will not present any difficulty to the Minister. I hope he will accept what is being sought.

I do not believe that there is any argument at this stage against the suggestion that, in circumstances where the Director of Public Prosecutions is unhappy with the propriety of leniency of a sentence imposed in a court, he should not have the right to have that sentence reviewed by a higher authority. It is proposed under subsection (1) that the Director of Public Prosecutions shall be entitled hereinafter to appeal to a higher court all sentences imposed under this Act or the Principal Act which he considers to be unduly lenient or inappropriate. Subsection (2) clarifies the matter: cases from the District Court are appealed to the Circuit Court and cases from the Central and Circuit Courts are appealed to the Court of Criminal Appeal. There is also a requirement that, under subsection (3), the Director should indicate his intention to seek such a review within seven days of the conclusion of the trial.

I have confined the amendment to deal with sexual offences or offences under the Acts as they now stand because, to do otherwise, would fall foul of the ruling that this is wider than the intended scope of the Act. However, this principle should apply to all criminal offences but, in the context of the Bill, I am confined to its terms of reference and I wish to argue the proposition here.

In the area of sexual offences in the last number of years, a special case is emerging because they have been unbelievable instances of inapprorpriate and unduly lenient sentences imposed in criminal trials, almost to the point of scandalising the community. I am thinking of three particular instances, the Kilkenny case to which I referred earlier on is one. A suspended sentence of three months was imposed on a soldier on conviction, after trial. The circumstances were well known and I do not have to go into unnecessary details. Two other cases in my own constitutency come to mind and the Minister referred to one earlier. The first case concerns a young man who was convicted on a plea of guilty before the Dublin Metropolitan Courts of sexually assaulting his next door neighbour. He was given a suspended sentence and sent back home, which is next door to that of the victim. It has taken eight months of the most horrendous and traumatic experiences for the victim as she had to go through an examination, a psychological assessment and attendance at various different agencies, police stations and God knows where else before the trial. The hearing lasted less than eight minutes and the defendant was sent back home on the day when the victim and her family believed that their lives might begin again on the departure of the accused, however temporary, to a place of detention. It was an outrageous state of affairs and, regrettably, it led to an even more outrageous act when the home of the defendant was attacked by thugs with petrol bombs resulting in the family being obliged to move out. All these acts were consequent on an inappropriate and unduly lenient sentence. It should never have happened.

An Leas-Cheann Comhairle

Will Deputy McCartan tell me how I can accept his contribution and at the same time defend the tradition in the House that we do not appear to be criticising decisions of the Judiciary?

Mr. McCartan

I will bear that in mind. My final case refers to Mr. Justice Roe who, on his last day on the Bench before retiring, imposed a sentence of three years in open court which was subsequently in chambers, without consultation, reduced to 12 months. The defendant was let out on early release by the Department or the Minister in advance of serving his full term. The mother of the victim, whom I believe the Minister met and indeed referred to earlier on, first learned in the newspapers that the defendant would be coming home and living in close proximity to his victim, on the Friday before the Monday he was released. It was the first that the Garda, the prosecution or the victim knew that the sentence had been altered. The director had no power, authority or function to proceed. In any event, because the sentence had been shortened by ministerial order——

Mr. Burke

Not by ministerial order.

Mr. McCartan

Perhaps the Minister will explain it because my understanding is that the sentence was reduced to 12 months and that he was released after serving nine months. The only way that could have happened was by way of ministerial order. However, I should welcome clarification because it is a very disturbing matter. Two of the three cases which I mentioned originated in my own constituency and they illustrate the fact there seem to be occasions when our courts can get matters wrong by whatever series of events or throw of the dice. I do not suggest an impropriety or lack of professionalism on the part of the Judiciary, but the throw of the dice can on occasion throw up a result that goes against the better judgement or the better view of the interests of the community, and here the director should have an active role to play. There is not any constitutional bar to this proposition. It is a proposition that is universally supported and now demanded. I can anticipate a difficulty arising here because of the way I am confined to introducing a proposition relating to offences under this Bill, as it could be argued that there is a constitutional problem because we are treating one group of offenders differently from another. Again I suggest that it is open to the Legislature within the constitutional parameters, to provide different rules with regard to the sentencing of offenders. For example, first time offenders could be sentenced to community services, fines and so on and repeat offenders could be sentenced differently. That argument does not carry weight. Where the common good is best served we can introduce a regime appropriate to the offence. There is now a special case with regard to sexual offenders, although I would be happy to see this proposition universally applied. The Director of Public Prosecutions should have the power to appeal undue leniency and inappropriate sentencing.

Mr. Burke

I am opposing this amendment. My opposition is not based on any rejection in principle to what it seeks to do. It may well be that a system of appeal against what are seen to be over lenient sentences along the lines proposed by the Deputy is a good idea not just for the range of offences covered by the amendment but for all serious offences.

I accept that occasionally cases arise in which mistakes are made and sentences are imposed which do not appear to fit the crime. There is no doubt that these cases can reflect badly on the courts and I agree with the Deputy that we must look at the legal system to see if we can devise a procedure by which these mistakes can be corrected or avoided. In an area like this where there are complex issues to be addressed, legislation should only follow detailed and expert examination. Furthermore, for the purpose of dealing with these issues, no distinction can be made between sexual and other offences. As the Deputy is aware, the question of sentencing policy including the issue of whether the prosecution should have a right of appeal against sentence has been referred to the Law Reform Commission. The processes employed by the commission are ideally suited to the examination of such matters. They can research the area thoroughly, canvass views from a wide range of interested parties and are also in a position to consider the problem in its widest context. As I have indicated there is more to be looked at than just the question of over lenient sentences. It would therefore be precipitate and wrong to proceed without awaiting the commission's recommendations. In that regard, I am sure the House will be pleased to learn that the Commission's examination of sentencing procedure is well under way. I can assure Deputies that when the report is published I will act on it expeditiously.

The Chair referred to a long and well justified tradition in the House that individual court decisions are not criticised unless it is necessary to do so in the context of legislation or, of course, unless it related to a debate on a resolution for the removal of a judge from office. The Deputy referred to three cases. I would like to touch on one, and it is with some hesitation that I comment on the point raised by the Deputy, but a Deputy referred to the fact that I met the mother of a victim in a case. I have received many representations from my colleague Deputy Fitzgerald, the Minister Deputy Woods and other Deputies in relation to this. I understand the position is that the judge in the case imposed a three year sentence on the offender. About a month later he decided to suspend the final two years of the sentence on condition that the offender entered into a bond to keep the peace. There has been a great deal of concern expressed by many people, including the victim's mother, at the perceived leniency shown by the judge in suspending two years of the sentence. There is even more concern at the way in which the decision was reached. I understand that the judge decided to alter the sentence in chambers rather than in open court and it was only recently that the victim's mother became aware of the change. It is understandable that it should have caused her a great deal of alarm and frustration. I find it difficult to avoid being in sympathy with her. The judge has now retired and it is only fair that we should acknowledge his long and distinguished service on the bench particularly in his capacity as President of the Circuit Court. The judge has made known his reasons for changing the sentence. I do not doubt that he did so conscientiously and in good faith, and even though many people might have misgivings about this more lenient sentence, in situations like this it is important that the feelings of all parties be taken into account. On reflection I am sure the judge will acknowledge that it would have been better to announce his decision in open court at the time before all the parties. If this had been done some of the alarm and frustration caused to the victim and her family might have been avoided. It is arguable whether it was lawful for the judge to have revised the sentence in this way and whether the issue should have been brought before the High Court for review. The responsibility for such matters rests with the Director of Public Prosecutions. I understand he considered the point but considered that no useful or effective action was open to him. The Deputy and the House will appreciate that whatever personal views I might have on the subject, it was not open to me to intervene in any way.

In relation to the amendment, I would emphasise that I am not opposing it on the principle of what it seeks to do but for the reasons I have outlined I cannot accept it at this time.

Mrs. Barnes

This is one of the most important parts of the Bill. Like the Minister I look forward to the commission's report on sentencing which has given rise to much anxiety and outrage throughout the community at times. I note that the Minister says that in this context he feels we should not differentiate between sexual and other offences. We have written into legislation that next to murder we consider sexual offences to be the most serious crimes. Yet, under our present sentencing policies there are huge inconsistencies. The submission from the Dublin Rape Crisis centre to the Joint Oireachtas Committee on Women's Rights makes the point that up to recently there has even been early release for some of these offences and that several of the clients of the Rape Crisis Centre have given evidence that the rape was committed by men who were out of prison for holiday weekends or who were on early release. A matter of grave concern regarding the sentencing of sexual offenders is that it is well known and accepted that this crime will be repeated against future victims unless the offender receives treatment and unless monitoring is involved in the sentencing so that the sentence will not be completed until such time as the safety of other women is assured.

We had a horrific case some years ago and it was of such concern that we debated it here in the House. It related to a sex offender who from his record and psychiatric files was known to be capable of committing the crime again. He not alone went on to commit horrific crimes and rapes against women here and in England but ended up committing murder.

I cannot stress enough the fundamental difference there should be in sentencing policy between sex offenders and other offenders. Indeed, committees have been set up in other countries to monitor such offenders and to report on them every six or 12 months. Such offenders are only released at their discretion, and not at the end of a statutory sentence. While we cannot pre-empt what recommendations may emerge from the Law Reform Commission, given the way the Minister has treated this Bill and I know he would agree with me, we need to monitor and focus attention on sex offenders. Even though this may cause constitutional difficulties I am sure everyone would agree that no offender should be released. At present people cannot prevent such releases even though other people are at risk not alone of rape but of death. Justice means nothing as long as that is not taken in context.

Mr. Flanagan

I support the amendment tabled by Deputy McCartan. My only criticism would be that it is too narrow and deals only with sexual offences. Members will recall that earlier this year Fine Gael tabled a Private Members' Bill which endeavoured to do throughout criminal law what Deputy McCartan's amendment endeavours to do in relation to rape and sexual offences. Therefore, we have no difficulty with the amendment. Following the sad rejection of our Private Members' Bill, the Minister referred this matter to the Law Reform Commission. I would have thought he would now be in a position to advise the House when he expects their report to be published. I would go further and ask him to give a commitment that whatever report is published by the Law Reform Commission it will be laid before the House within a given timescale.

This matter has given rise to serious concern and, given the limited time available to us this evening, I will not go into detail on any decision which may have been made. Suffice it to say there is grave public concern about inconsistency in sentencing. I say that with the greatest of respect to the Judiciary who are independent under the Constitution. The fact is that sentencing guidelines have not been imposed by the Judiciary or by someone outside the Judiciary. This matter must be tackled. This is a source of concern for everybody involved and in the interests of a more consistent and concerted approach, the Director of Public Prosecutions, who himself is independent, should have the option to appeal a sentence which, in his considered opinion, is lenient. Such a facility is available in other jurisdictions in the western world where the defendant is afforded such an appeal, but the Director of Public Prosecutions is not.

The arguments put forward by the Minister rejecting the Fine Gael Bill hold no more water this evening than they did at that time. For this reason, I fully support the amendment. Unless the Minister is prepared to outline a timescale within which he will tackle the problem, the House should divide on this matter given its importance.

Mr. Burke

In case there is any misunderstanding I should emphasise again that my opposition to the amendment put down by Deputy McCartan is not based on a rejection of the principle behind it. The Law Reform Commission examination of sentencing procedure — I share many of the concerns voiced by Deputy Flanagan; there is nothing between us on this matter — is well under way. I want to emphasise that as soon as the report becomes available to me I will act upon it as expeditiously as possible. I can say no more than that at this stage. It is likely that a discussion document will be published first by the Law Reform Commission to be followed by the report. I will act on it as expeditiously as possible because I share Members' concerns in relation to this matter. I am sorry but I have not got a precise date from the Law Reform Commission.

An Leas-Cheann Comhairle

I call on Deputy Fennell. The Chair appreciates her patience.

Mrs. Fennell

I, too, support the amendment and feel very strongly about this lack in our legal procedures and have spoken about it many times. Regrettably, the consequences of this lacuna are evident in the disruption caused in the community which has been referred to in this debate. In some instances neighbours literally took the law into their own hands. I think we will see a repeat of this if a similar situation occurs.

The issue of sentencing policy has been debated down the years. In their submission to the Oireachtas Joint Committee on Women's Rights in 1986 the Rape Crisis Centre states:

We have kept records of the outcome of court hearings in rape and sexual assault cases since 1977. The inconsistency in sentencing for these crimes is astounding. It ranges from a three months suspended sentence imposed on a man who raped a 13 year old girl on 4/2/1982 in Wexford District Court to a 15 year penal servitude sentence imposed on a man convicted of rape in the Circuit Court in Dublin in 1979. In fairness to both the victim and the accused, we recommend that sentencing guidelines be established to regularise the inconsistencies which currently exist. It is quite obvious that sentences reflect the level of seriousness afforded to the crime of rape by the particular judge presiding. The personal whims of judges can hardly be a sound basis for fair criminal hearings.

It is possible when the new section in this legislation, under which all cases will be referred to the Central Criminal Court, comes into effect there will be greater uniformity in sentencing. In relation to the work being done by the Law Reform Commission on this matter, we encountered the same problem when we debated the Committee Stage of the Child Care Bill in that the subject matter of many of the amendments proposed was under examination and consideration by the Law Reform Commission. Thankfully, their report has been presented and their recommendations can be incorporated on Report Stage.

Would the Minister notify the Law Reform Commission that their report is crucial to this legislation and agree to a timescale so that it is presented before this legislation goes to the Seanad, where their recommendations can be incorporated by way of an amendment?

Mr. Burke

It is my intention to come back to debate the Report and Final Stages of this Bill this day two weeks and then to take the Bill, as passed by the House to the Seanad. As this Bill was introduced in the Seanad, the Seanad has to take on board all the amendments made. I think it would be the wish of all sides of the House that this legislation would be put on the Statute Book as soon as possible. I have set the deadline as the Christmas break, with the co-operation of all the Members who have shown an interest in this debate. That target can be reached. In relation to the report of the Law Reform Commission, I do not want to hold up the Bill because it is not practical to say this can be done by Christmas. I have no difficulty with appealing sentences and I can assure the House that, in relation to sentences not just under this legislation but also in criminal cases, it is my intention to act immediately on the report as soon as the Law Reform Commission give it to me.

Mr. Kavanagh

In order that we have consistency in this House I want to add my voice to the demand in this amendment that the perceived or actual inconsistency in sentencing be properly looked at. Perhaps another court can be brought into the area of sentencing and the two can undo a wrong that is perceived to have been done. Obviously the appropriate person to do that is the Director of Public Prosecutions. We accept what the Minister had said — that he has asked the Law Reform Commission to look at this whole area. It was the Fine Gael Bill that initially brought this about and highlighted the problem we had seen in civil law cases. The lay people in this Chamber are inclined to take a lead sometimes from what we read in the newspapers and perceive that there is an inconsistency where there may not be. If one were to dig into some of the cases cited, perhaps we would understand why certain decisions were made and that they were not inconsistent.

Nevertheless there is concern among the public about a number of cases where it was hard to square what had been decided by judges with the crime. When the Minister looks at the various dates on the Law Reform Commission documents he will see 1987 on a consultation paper which is coming out now, but we are dealing with the problem before the final paper issues. If the Minister puts the pressure on as soon as he gets the consultation document, he can then bring forward legislation requested in this amendment.

Mr. Burke

I can assure the Deputy that on receipt of the consultation document the preparatory work for the legislation will be underway. As a matter of fact, we are looking at it already but the final legislative proposal will have to await the commission's report.

Mr. McCartan

An item of specific concern to me was the third instant case we talked about. I will say no more about it other than this. Even though it was a year ultimately served, the release of the defendant was even before the eighth month had arrived. When I contacted the Minister's office on the Monday after that particular weekend, his officials agreed to come back to me to explain how that had happened. My understanding — and I may be wrong about this — is that it can only happen by ministerial order. I would invite the Minister, at his convenience, to look at the matter again and come back to me on it in correspondence. I would like to have my mind and that of my constituent clear on this.

Mr. Burke

I will talk to the Deputy on that issue.

Mr. McCartan

This has been a useful debate. I welcome the fact that we have on record that the Minister has no difficulty with the idea, in principle, of the right of a director or of some mechanism of review. I appreciate also that the Law Reform Commission — upon which we heap so much praise — are looking at this matter. In the circumstances I am not putting this to a vote at this stage. I withdraw the amendment and look forward to the publication of the report and the Minister's expeditious response. Nonetheless, it has been useful to have this debate to mark the fact that there is disquiet in the House about the inappropriateness and inconsistency in sentencing, in some circumstances, and that it is something on which we will be taking legislative action in the near future.

Amendment, by leave, withdrawn.

Mr. McCartan

I move amendment No. 28:

In page 7, before section 15, to insert the following new section:

"17.—(1) All persons sentenced for an offence under this Act or the Principal Act shall have a condition attached to the sentence imposed that the offender be assessed for, and where appropriate, provided with a rehabilitative programme of behavioural treatment while serving such sentence.

(2) For the purpose of subsection (1), the Minister shall establish within the resources of the existing Prison Welfare Service, and in consultation with the Director of Medical Services, a scheme or schemes for the rehabilitative treatment of offenders, assessed and deemed suitable under this section.".

In the last half hour of our Committee Stage debate, I will not delay but I would like to underscore this important point. In response to the publication of the Bill in 1988 one of the first submissions I received was from the probation and welfare officers' association comprising a delegation of probation and welfare officers who were concerned about an issue that was not addressed in the draft legislation and which they believed was central. I support them fully and in response to their representations I sought to draft on their behalf and on behalf of The Workers' Party this amendment.

The proposal is simply to put into legislative form a condition that an offender, sentenced for a sexual offence, should have a condition attached of the obligation and necessity for an assessment of his character and behaviour and in response to that the Minister should then be obliged to act. The proposal is that it is now acknowledged and accepted that the crime of rape and serious sexual assault is not something that is inherently in the character or make up of a person, that it has something to do with a mental abnormality or deficiency but that it is an acquired behavioural trait based on aggression of one individual towards another, primarily aggression of the male upon the female. Because it is acquired in the community and in the society in which the offender has moved and lived, it will remain there and will have a bearing on the offender once released unless something is done while that person is in custody. Unfortunately, it appears that this proposition has not come home to the Minister or his Department. I raised this matter on Second Stage and I quoted at length from Ray Wyre's document and research in England to illustrate the point because it is not something which I would claim to be an authority on but I feel very strongly about it, and he put the issues succinctly.

Concluding Second Stage the Minister had approximately a one or two sentenced response that this issue was not germane to the Bill. I could not agree less with him. It is crucial and essential that we have a proposition written into the legislation because of the way it appears the Minister's office has haphazardly and grudgingly dealt with the idea of the administration of justice in the prisons.

The probation and welfare services have been forced to take voluntary action. The existing schemes came about by reason of their own activities carried out through their own good offices outside normal work times. It was they who established the project scheme in Mountjoy and in Arbour Hill in an attempt to illustrate to the Minister that there was merit in the representations they had made to him, and to his predecessors, for the last number of years. I am not saying the matter rested entirely on the shoulders of the present Minister. Given the hard way in which they had fought on this issue and had made representations, and given the rather grudging response from the Minister, this House must act by introducing a legislative requirement that it be a necessary ingredient in sentencing for the future of all offenders, including any person specifically sentenced under the régime of these Acts. What we are saying is that an offender once convicted and sentenced an absolute condition to be attached to all sentences and the Minister must provide a régime within the prisons for an assessment and ensure in the future that all sexual offenders, once committed to prison, will be not left to languish there, serve their sentence and have nothing more done with them.

I acknowledge the recent welcome appointment of a director of medical services. He will have a central role to play in the development of this type of scheme. Obviously, the welfare services who are the initiators and pioneers in this area in Ireland have a central role to play and should be consulted so that when offenders are released from prison they will at least be fully reviewed, assessed and have had something done to deal with their acquired behaviour. Otherwise, the risk of reoffence must be huge. I do not have anything more to say on this except to remind the House of the case we debated here some years ago of Mr. George Ireland. That should remind Members of what I am talking about.

Mr. Burke

I agree with the need for care, counselling and attention for prisoners. Various approaches are being used within the system at present. For example, at present counselling is normally carried out by welfare officers, psychiatrists and psychologists. Of course, chaplains have a particular role to play in this area. A group approach has been introduced in Arbour Hill prison and the progress of this group will be carefully monitored to see what changes emerge. This multi-disciplinary approach is appropriate and correct.

I am satisfied that compulsory assessment and treatment for sex offenders should not be provided for in legislation or imposed by any other means. A cornerstone of any programme to help prisoners turn away from crime is that the prisoner is willing to help himself. Various groups of people are employed in the prison service to help offenders become law abiding citizens but none of these can force a prisoner to conform; he must have the will to do that himself.

I note that the Deputy's amendment envisages that a scheme or schemes for the rehabilitative treatment of offenders should be established in consultation with the Director of Medical Services. The Deputy graciously acknowledged the fact that I recently appointed a Director of Medical Services. The House will be aware that one of the important advances for which I was responsible since I took office was that appointment. The Director of Medical Services took up office in early October and I can inform the House that one of the specific matters to which he will be directing his attention will be the general question of appropriate counselling, guidance and so on in the case of sex offenders committed to custody. I believe that is the right approach rather than providing for statutory compulsion of any kind which, as I have already said, is not according to the best advice available to me on approaches likely to produce the best results in the longer term.

I am sure the House will agree also that it would be less than helpful effectively to tie the director's hands by introducing a statutory provision to the effect that the provision of special arrangements for sex offenders in prisons should be the responsibility of a particular agency. I presume the reference to the prison welfare service is, in fact, a reference to the probation and welfare service, which is part of the Department of Justice. It is possible that other agencies would also have a role to play.

The approach being taken of non-statutory compulsory assessment and treatment is correct. There are human rights implications, in relation to, for example, statutory treatment. Apart from the human rights implications, what would be the value of a mandatory requirement that psychiatric treatment be provided in cases where the medical view was that the cause of the offence did not lie in any psychiatric disorder or where, for example, an offender simply refused to speak with the psychiatrist. In line with the general advance being made under Whitaker who recommended that a Director of Medical Services should be appointed — he has only been appointed since October — instead of imposing statutory obligations with all of the human rights implications of that, it is better to leave the care, treatment, guidance and improvement of the position of the offender so that he, on his return to society, will no longer be involved in such horrendous crimes, to the Director of Medical Services.

Mrs. Fennell

While I accept the Minister's response in so far as he does not believe there should be a statutory provision in this area, in debating legislation like this we have a responsibility to put down markers and to give pointers as to what we believe is necessary. This should be elaborated on.

I believe that some commentators felt so badly about the crime of rape that they urged that those convicted of rape should be left to rot in jail, as it were. This is a wrong approach. It is shortsighted because people cannot be kept in jail forever. If rapists serve their due time in jail, they are entitled to be released. However, these offenders have a tendency to repeat the crime. The Minister should concede the statutory provision we are seeking so that it would be an intrinsic part of policy in sentencing in rape cases. With all due respect to the Minister, I do not believe chaplains are the people who should deal with these offenders. A chaplain may be able to look after the spiritual needs of prisoners in this category but in my opinion he would be ill-equipped to give the kind of counselling and therapy these men need.

When I was in my car the other day I was most impressed by a radio interview — I think it was on "The Gay Byrne Show"— given by a woman from, I think, the probation and welfare service, who does this counselling work in one of the prisons — I think it was Arbour Hill. This woman has been working for a number of years with child abusers and rapists who are in prison. She explained in detail the type of work she does and said that months of counselling have to be spent trying to get the men to accept that the nature of what they did was wrong. In most instances they cannot accept this, even in the case of child abuse. They are able to rationalise and put the blame on the victims. In 60 per cent of cases they believe that the victim was to blame. Very intricate, detailed and professional work has to be done by special highly trained people. The woman who is doing this work, and who explained it very well on radio, is doing an invaluable job. That is the kind of help which should be available generally to anybody who is sentenced to prison for a sexual offence.

I support the motivation behind this amendment. We have to take due notice of it, however it is done. If it cannot deal with this statutorily then it should be done with the agreement and active co-operation of the new Director of Medical Services in Mountjoy and the probation and welfare personnel involved.

Mr. Kavanagh

The Bill would be complete if this amendment was added to it in some form. We should get a much stronger statement from the Minister that he is instituting what the probation officers suggested to him. If treatment is not mandatory, convicted rapists should in some way be made attend treatment centres so that they can be evaluated. Experience has shown that prisoners who do not receive treatment are liable to repeat the offence when they are released. The opposite is the case with those who have accepted treatment. Very definitely they can benefit from such treatment.

Having gone through the Bill and the Minister having accepted various amendments from the Opposition, a much stronger statement should go out to the public that there is a method of treating rapists which can be of assistance, rather than the treatment which Deputy McGahon put forward as ideal. The debate on this Bill should not be known as having provided one simple solution to a complex problem. We should have a firm statement from the Minister that treatment is available for people who transgress in this area. Their families suffer greatly from their acts and they would like to know that the offender is not simply thrown into jail and forgotten, which would probably lead to his emergence from prison with far bigger complexes than when he was committed.

It is necessary that the probation and welfare officer's opinion should be closely looked at and if possible accepted by the Minister and that there should be a comprehensive treatment section in the Department. When the Minister spoke on the Estimate a year ago he promised that this would be done but we know that promises, particularly in the health area, have not been carried out. This crime is not the same as others; it has an effect on many people beyond the victim and transgressor. The Minister should ensure that proper treatment is available for offenders which should be strongly recommended to the transgressor when serving his sentence.

Mr. Burke

For the benefit of Deputy Kavanagh, who has taken such an interest in this legislation, and for the House generally, I emphasise that rehabilitative treatment is essential for offenders. I agree that it requires very intensive work with the offenders. An experimental project was undertaken in Arbour Hill Prison in October 1988 by officers of the probation and welfare service with nine sexual offenders. The project consisted of 36 sessions spread over a 12-month period. A second project for a further ten sexual offenders is due to finish next month. These projects require firm and sustained commitment on the part of each of the offenders involved and for this reason offenders taking part must do so voluntary rather than statutorily. The time commitment involved for officers in running a project for a group of sexual offenders in prison is considerable. Such a project requires months of pre-planning and when it gets under way, apart from the actual group sessions, time must be allocated before each session for preparation and further time after each session to assess progress. A group consists of no more than ten voluntary participants and officers of the service who undertake such a project do so in addition to their normal duties.

Management of the service have a serious responsibility to ensure a balance between the provision of specialised projects for small groups and the provision of an adequate on-going service for all prisoners. The current experimental project for sexual offenders in Arbour Hill Prison is due to finish in December this year. When the programme outcome is known and written up, the probation and welfare service management will review and evaluate the project in association with the recently appointed director of medical services. I assure Members and the general public that the care and rehabilitative treatment of sex offenders is a priority item for the new medical director, but by its nature it must be voluntarily rather than statutorily done. That is the only point of disagreement we have.

Mr. McCartan

The Minister says a statutory programme is not appropriate. I agree fully with Deputy Fennell that as a House we should put down a marker. My amendment suggests that the only requirement should be that the offender be subject to assessment and, where appropriate, provided with a course of treatment. If on assessment an offender says he is not interested or if it is found that a different course of treatment might be available, that action could be taken. I am not suggesting that we frogmarch offenders into a course.

The amendment seeks to impose on the Minister an obligation to put in place a scheme. The experience of the probation and welfare service to date has been that the point of the scheme has not come to the attention of the Minister. There has been an element of reluctance and they have had to fight hard. In view of what the Minister has said today — and perhaps it is my fault that I am only becoming aware of this new commitment on the part of the Minister — I am happy to withdraw this amendment and to talk about it again on Report Stage.

As I will not be able to reach amendments Nos. 33 and 34, the only contentious amendments left, I will come back to them also on Report Stage.

Amendment, by leave, withdrawn.

Section 15 agreed to.

Section 16 agreed to.

NEW SECTION.

Mr. Burke

I move amendment No. 29:

In page 7, before section 17, to insert the following new section:

"17. —Section 18 of the Criminal Law Amendment Act, 1935, is hereby amended by the substitution of ‘£500' for ‘two pounds' and ‘6 months or to both' for ‘one month'.".

This arises from a point made by Deputy Kavanagh that I should consider introducing a penalty for indecent exposure.

Mr. Kavanagh

I thank the Minister for accepting the advice I gave. He has increased substantially the penalties for indecent exposure.

Mr. McCartan

Other Members have alluded to a certain sideline contribution on this issue of dealing with offenders. I regret that the Deputy was not here when we were discussing the central issue of sentencing and punishment of offenders. Deputy McGahon might at some stage let us know what he would regard as an appropriate penalty for indecent exposure or flashing. Does he recommend castration?

Mrs. Barnes

I should not like to tempt him on that.

Amendment agreed to.

SECTION 17.

Mr. Burke

I move amendment No. 29a:

In page 7, paragraph (a), line 24, to delete "169 (d)" and substitute "169 (b)".

Amendment agreed to.

Mr. Burke

I move amendment No. 29b:

In page 7, paragraph (a), line 24, after "of" to insert ", rape under section 4 (within the meaning of the Criminal Law (Rape) (Amendment) Act, 1990)".

Amendment agreed to.

Amendment No. 30 not moved.

Mr. Burke

I move amendment No. 30a:

In page 7, paragraph (b), line 27, after "rape", to insert ", rape under section 4 (within the meaning of the Criminal Law (Rape) (Amendment) Act, 1990)".

Amendment agreed to.

Amendment No. 31 not moved.

Section 17, as amended, agreed to.

NEW SECTION.

Mr. Burke

I move amendment No. 32:

In page 7, before section 18, to insert the following new section:

"18.—(a) Paragraph (a) of subsection (2) of section 13 of the Criminal Procedure Act, 1967, shall not apply in relation to rape, rape under section 4 (within the meaning of the Criminal Law (Rape) (Amendment) Act, 1990) or aggravated sexual assault (within the meaning of the Criminal Law (Rape) (Amendment) Act, 1990).

(b) Nothwithstanding paragraph (a), the offences referred to therein shall be deemed, for the purposes of paragraph (b) of the said subsection (2), to be offences to which the said section 13 applies.".

Amendment agreed to.

Section 18 deleted.

Section 19 agreed to.

SECTION 20.

Mr. Burke

I move amendment No. 32a:

32a. In page 8, subsection 4 (a), line 8, after "3," to insert "4,".

Amendment agreed to.

Section 20, as amended, agreed to.

Mr. McCartan

Perhaps I might withdraw amendments Nos. 33 and 34 at this stage indicating that I intend to retable them on report stage. I would request the Minister to look again at the issue.

Mr. Burke

My understanding was that those amendments had been ruled out of order, a Cheann Comhairle.

An Ceann Comhairle

If they are out of order, that is that.

Mr. McCartan

I am merely signalling my desire to have this matter examined by the Minister between now and Report Stage, one I want to have aired.

Mr. Burke

I will look at it.

An Ceann Comhairle

As it is now 7 o'clock I am required to put the following question in accordance with the order of the Dáil of this day: "That the Schedule and the Title are hereby agreed to, that the Bill, as amended, is hereby reported to the House". Is that agreed? Agreed.

When is it proposed to take Report Stage?

Mr. Burke

This day two weeks, subject to agreement between the Whips.

An Ceann Comhairle

Is that satisfactory?

Mr. McCartan

Yes, subject to agreement between the Whips.

Report Stage ordered for Tuesday, 4 December 1990.