Eamon Gilmore
Question:17 Mr. Gilmore asked the Minister for Justice, Equality and Law Reform the plans, if any, he has for the provision of legal aid for victims in rape cases; and if he will make a statement on the matter. [20127/98]
Other Questions. - Legal Aid Service.
The question of the provision of legal aid for victims in rape cases usually arises in the context of separate legal representation in the course of trials in such cases. The Deputy will be aware that last May I published a discussion paper on the law on sexual offences. The issue of separate legal representation is addressed in the chapter dealing with the trial of sexual offences. The closing date for receipt of submissions was originally the end of August. However, this has since been informally extended to enable as many people and organisations as possible to respond to the discussion paper. In that respect submissions are still being received. All submissions will be taken fully into account in the formulation of proposals for changes to the law which may ensue from the paper.
Victims of rape and other sexual offences already qualify for free legal advice under section 26(3) of the Civil Legal Aid Act, 1995. That provision extends the civil legal aid scheme to allow a complainant in cases involving those offences to consult a legal aid solicitor who may accompany the complainant into court.
I am sure the Minister is aware that while overall crime rates are falling, there is one exception relating to rape and sexual assaults on women. Given that the Minster has shown concern about reducing crime levels, does he not accept that to leave this matter on the long finger will ensure those who are guilty are not brought before a court and punished? Is he not aware — it has been well publicised — that many women are afraid to proceed to court in cases of rape and sexual assault because of a lack of legal representation? Does he not recall that he made a commitment last September, at the conference relating to the report, to consider the specific requirement to provide legal representation? Given that his answer is very disturbing for those involved in supporting women who have experience of this kind of crime, does he not accept he must differentiate between the general points in the report, welcome as they are, and the specific requirement to urgently provide for legal representation in such cases?
This issue is complex and difficult. The question of separate legal representation raises constitutional questions which, in turn, raises the possibility of tilting the criminal process significantly in favour of the prosecution. This would arise from a dual representation hostile to the interests of the accused.
I have indicated I am in favour of providing separate legal representation where this is possible. It is possible to do so where an application is made to the court to allow in evidence the past sexual history of the complainant. In those circumstances, I believe I would be well within constitutional parameters in allowing for separate legal representation in what I will describe as the trial within the trial.
However, there is very real difficulty for me — and for previous Ministers — in regard to the question of dual representation during the trial itself. The accused would almost certainly raise the issue that the prosecution had a form of dual representation as a result of the complainant and the prosecutor both being represented in the court. Obviously, I cannot pre-empt what the court would say if that argument were put before it, although I have my view on what it would say. However, I feel I am on safe ground in allowing for separate legal representation when it is sought to raise the complainant's past sexual history.
I welcome the Minister's view on the question of legal representation in certain circumscribed situations but that is not the issue. I would have thought that was a given——
I ask the Deputy to confine herself to a question.
This is the nub of the question. Now that the Minister has agreed it is necessary to provide this legal representation, what are his plans to so do? He is producing a great deal of legislation this term but there is no indication, despite his commitment, that this is an important measure. Taking this action would certainly reduce the crime levels in this area. What are his plans and his timeframe for providing, at the very least, legal representation in those specific circumstances about which there is no constitutional doubt?
As I indicated on a number of occasions, the discussion paper will be the subject of analysis, as will the submissions which are being received. It should be taken as read that legislation will follow that necessary analysis.
It is not possible at this stage to give a timescale to Deputy McManus. However, I am committed to introducing, at the very least, legal representation for the complainant when her past sexual history is being raised and it is only right that I should do that.
The whole question of the extension of legal representation beyond that does, unfortunately, have constitutional implications which would have to be very carefully considered. However, I am committed to doing what I can within the parameters within which I must operate. I am committed to doing this at the first opportunity, but analysis of the discussion paper, which will lead to legislation, must take place first.
I call Deputy Fitzgerald and then Deputy O'Sullivan.
I welcome what the Minister has said in relation to this issue.
The Deputy should ask a question because I want to give Deputy O'Sullivan and the Minister a chance to speak.
A number of recommendations were made in the recent study commissioned by the Minister on the legal process and victims of rape in relation to making the legal process easier for such victims and helping them to take cases without feeling intimidated by the process. One of those recommended changes concerned the question of representation.
Does the Minister have a timetable for implementing the recommendations to which he has said he is committed? To repeat Deputy McManus's question, does the Minister envisage what he said in regard to independent representation will be encompassed in separate legislation?
Will the Minister give urgent separate consideration to the question of legal representation, aside from the other issues which will be dealt with in the discussion document? This has been the major recommendation made by rape crisis centres around the country and was the main recommendation in a recent report by Trinity College, Dublin, and the Dublin Rape Crisis Centre. It should be given urgent priority ahead of the other issues in the discussion document.
It would not be prudent of me to consider any one aspect of the discussion document in isolation. Opportunities to bring forward legislation in the area of sexual offences do not arise very often. Now that the opportunity has arisen in the context of the discussion paper and the submissions which are being received, it is only right that I should bring forward comprehensive legislation to modernise our criminal law in this area. Therefore, I intend to include that representation in an all encompassing Bill.
That said, consideration of how legal representation might be further extended beyond the limits I have outlined will also be considered in the context of considering the discussion document. There have been improvements under successive Governments in the position of complainants regarding advice given to them pre-trial, impact reports and so on. However, the issue of legal representation is, as Deputy McManus said, the nub of the question, which is why it is being addressed in great detail.
Written Answers follow Adjournment Debate.