I move amendment No. 1:
In page 5, between lines 36 and 37, to insert the following:
"(3) where a court is determining the sentence to be imposed on a person for an offence to which this section applies, the court shall, upon application by the person in respect of whom such offence was committed, hear the evidence of the person in respect of whom the offence was committed as to the effect of the offence on such person upon being requested to do so.".
My amendment seeks to insert a new subsection in section 5 which deals with the effect of the offence on the victim. Section 5 provides that where a court is determining the sentence to be imposed on a person for an offence to which this section applies, the court shall take into account and may, where necessary, receive evidence or submissions concerning any effect, whether long term or otherwise of the offence on the person. In other words, it is left to the court where it deems it necessary to receive evidence or submissions as to the effect of the crime on the individual. It appears that the court has to decide in a vacuum whether to hear evidence or submissions. The victim of the offence would not be a party to the proceedings and effectively it is left to a judge to determine whether to receive evidence on submissions on the effects of the offence on the victim.
The subsection which I seek to insert reads as follows:
(3) Where a court is determining the sentence to be imposed on a person for an offence to which this section applies, the court shall, upon application by the person in respect of whom such offence was committed, hear the evidence of the person in respect of whom the offence was committed as to the effect of the offence on such person upon being requested to do so.
This brings me back to where I started yesterday when I said we should have a more victim-oriented system of criminal law. Under the provisions of this subsection, the victim of a physical or sexual assault, following the completion of the court hearing and the conviction being made, will be allowed to ask the court to hear evidence on the effects of the crime, before the court will pass sentence and when they would make such a request the court would have to listen to what they had to say. It would not simply be a matter of a judge or a third party, such as the prosecutor or prosecuting counsel making that decision. I am concerned that people who are the victims of serious offences be allowed the opportunity so that the court truly understands the effect the offence for which the guilty person has been convicted has had on them. When I originally proposed this amendment on Committee Stage I also included a provision to allow the victim in such circumstances to have legal representation. It is desirable that this should happen, particularly when we appear to be giving legal representation automatically to the convicted person when the unduly lenient sentence is appealed. I fail to understand why someone who is convicted of an offence should get free legal advice and be treated better by our legal system than the victim of the offence. That seems to me to be a very unequal application of the laws of justice.
I hope the Minister accepts this proposal. If he does, I hope he will recognise that a victim should be given a right to have the effects that that crime has had on the victim's life heard by the court.
As we have only a limited time, may I ask the Minister to clarify how he envisages section 5 (1) working in practice? Subsection (1) states that a court "where necessary," may "receive evidence or submissions concerning any effect...of the offence". I am not sure how the effects of the offence will be communicated to the court in the absence of the individual, who is the victim, giving evidence. Will a medical report be submitted to the court? If so who will have to obtain the medical report for the court? Will that be a function of prosecuting counsel? If someone is suffering from psychiatric problems as a result of a violent or sexual crime, will a psychiatric report on the victim be made avaiable to the court and will the court welfare officers prepare such a report? If the victim had been badly affected by the crime, for example, if a wife had been sexually assaulted, would her husband be allowed to give evidence to the court on the effects that assault had on his wife? Over whom will the court have jurisdiction to take evidence from in relation to the effects of a crime?
On the other hand, there are occasions when crimes are committed against individuals who already suffer difficulties. If the effects of the crime are of a psychological or psychiatric nature it will be difficult for the court on occasions to determine whether the difficulties relate to the crime. Let us take the purely theoretical case of a young woman who had serious psychiatric problems, a teenager suffering from anorexia who was sexually assaulted and this exacerbated her condition. If the court is to determine the effects of the assault on her what information will be furnished to it about her health prior to the assault? Let us assume that two men have a fight and one is held responsible for the serious injuries suffered by the other, who not only appears to have physical injuries but psychiatric problems as well. The court will have to have regard to that issue in determining the sentence to be passed but what information will be made available to the offender about those matters and how will the court obtain information as to the health of the person before the assault took place?
I very much welcome the provision which will require the courts to examine the effects on victims of crimes committed against them and require the court to take those into account when sentencing offenders, but this is a very small section and deals extremely briefly with the manner of the application of this principle. I think it is inadequate and needs to be beefed up to a considerable degree in order to ensure that the victim can communicate fully and comprehensively to the court the effects of the crime perpetrated but also so as to ensure that injustices do not result from the court assuming that someone is unwell because of the crime which was committed against them when they may have been unwell for a considerable period of time before the crime was committed. I am concerned that the section may result in certain constitutional problems if courts take into account the effects on victims of crimes committed against them without the person being sentenced getting adequate information as to the alleged effects before sentence is passed. It should also be recognised that it is the right of the victim in cases as serious as those detailed in section 5(2) to be heard by the court as to the effects on them of the crime committed against them if the victim requests a court to so hear.