I move: "That the Bill be now read a Second Time."
I wish to share time with Deputy Charles Flanagan.
I express my appreciation to all the groups that assist victims of crime, some of which are represented in the Visitors' Gallery. They do tremendous work behind the scenes, often generally unknown to the public, and they have supported this legislative proposal. There is a common perception that criminals have more rights than their victims. This Bill would give to the victims of crime, for the first time, comprehensive statutory rights in Irish law and make statutory provision for a victims' rights charter.
Under the Bill, the State and State agencies will be required to inform victims of crime of the appropriate and necessary services available to them and of the legal remedies they can utilise to obtain personal protection when necessary. Victims will be kept informed of progress made in the investigation of a crime reported by them; of the progress before the courts of any prosecution initiated; and of the outcome of any court proceedings relating to an alleged or convicted offender. With regard to physical or sexual violence, child trafficking and the sexual exploitation of children, various new rights are afforded to victims. These include the right of the victim to furnish to the court his or her view of a bail application made by the alleged offender; to be informed of a release on bail of alleged offenders; and to be given reasonable notice of a convicted offender's escape or of early release and a proposal of the Minister for Justice, Equality and Law Reform to grant early release or to make a deportation order in respect of an offender. For the first time, victims of crime will be entitled to make submissions to the parole board on a convicted offender's applications for parole and release. The board will be required to have regard to both such submission and any victim impact statement furnished to the court following conviction and it will be required to factor in the resulting information available to it in determining whether the specific offender should be granted the parole sought.
In an adversarial system of justice, the victims of crime can be too easily forgotten. For the first time in Irish law, all victims of crime will be given a voice and the recognition they deserve. They will also, for the first time, be entitled to have any violation of their rights investigated and reported upon, and as a consequence, there will be greater transparency and accountability in our criminal justice system.
Six months was spent in the preparation of the Bill. Research was undertaken of existing victims' rights legislation in various parts of the world and assistance in this regard was obtained from one of the legally qualified researchers attached to the Houses of the Oireachtas library and research service to whom I pay tribute. Specific regard was had to the State's international obligations and the entitlement of citizens of the State and victims of crime who visit the State to have extended to them the same rights and services as apply in other states and, more particularly, member states of the European Union. The legislation is influenced by international best practice as set out in the United Nations General Assembly Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985 together with the annex accompanying it and, in particular, having regard to the European Council framework decision of 15 March 2001 on the standing of victims in criminal proceedings and the criticism of Ireland's record in applying standards laid down in the European framework decision, as assessed by the European Commission in its 2004 evaluation report. Particular regard was also had to the Council of Europe's recommendation of the committee of Ministers to member states on assistance to crime victims, which was adopted by the committee of Ministers on 14 June 2006.
An essential principle underpinning the legislation is an acceptance that victims of crime have civil rights that require recognition and respect in our law and an acknowledgement that, under our current law, they are neither recognised nor adequately protected and that this State does not property comply with international human rights standards in this area. Fine Gael believes such recognition and protection can be afforded to victims of crime without undermining fundamental constitutional principles, which are central to our criminal justice system and which ensure those accused and convicted of offences receive a fair trial and also have their constitutional rights properly protected.
Section 5 requires that victims of crime be treated with courtesy and compassion and their dignity and privacy be respected. The principles are subject to the proviso that their application does not infringe on the constitutional rights of an alleged or convicted offender. The entitlement of a victim to be as fully informed as possible of the rights and remedies available to him or her, of his or her role in the criminal justice process with regard to any criminal proceedings taken and of the general availability of health and social services or other appropriate assistance that may be required is recognised. It is stated that a victim has a duty to co-operate with An Garda Síochána and any other relevant law enforcement authority in the investigation of crime.
Section 7 prescribes the rights of victims to information about services and remedies available to them and imposes particular obligations on An Garda Síochána, the Courts Service Board, the Criminal Injuries Compensation Tribunal, the Departments of Health and Children and Justice, Equality and Law Reform and the Health Service Executive. Also included is an obligation to advise victims of any national or local accessible voluntary agency that provides help to victims.
Section 11 of the Bill provides that a victim's residential or home address may not be disclosed in court where a court is satisfied that such disclosure "is likely to cause prejudice to the victim's interests or harm to the victim" and "the likely prejudice or harm outweighs the evidential value of the information or any assistance it may provide in enabling the court or a jury to reach a fair determination".
Sections 12 to 16, inclusive, of the Bill provide comprehensive new provisions concerning victim impact statements. Under the Criminal Justice Act 1993, upon sentencing courts are only required to have regard to victim impact statements where an offender is convicted of a sexual offence or an offence involving violence. The Bill provides for a more comprehensive use of victim impact statements in the sentencing of offenders. In the context of all criminal prosecutions, it imposes an obligation on the prosecution authorities to make all reasonable efforts to ensure that a victim impact statement is available to the court when sentencing any offender and the court, when imposing sentence, is required to take into account the effect of the offence on the victim or victims. Where necessary, a court can not only receive a victim impact statement, but may hear evidence from a victim of the effect of a crime on him or her. In certain circumstances, the courts are obliged under the Bill to hear the oral evidence of the victim in respect of an offence where a victim impact statement has been made if the offence concerned is a sexual offence, involves violence or a threat of violence to a person or any other kind of offence that has led to the victim having ongoing fears on reasonable grounds for his or her physical safety or security or for the physical safety or security of one or more members of his or her immediate family.
For the first time, formal statutory provision is made for the surviving family members of a homicide victim to make a victim impact statement. The law in this area has to date been developed by the Judiciary. It has no statutory foundation and whether permission is given to make such statement depends on the discretion of the individual trial judge.
The Bill addresses the difficulties highlighted in the trials resulting from the tragic deaths of Robert Holohan and Siobhan Kearney. Following the conviction for murder of Siobhan Kearney's husband, the trial judge earlier this year, as he was entitled to do under the present law, declined to hear a victim impact statement presented by a bereaved family member. Consequently, the statement was delivered to a media scrum outside the courts. The Bill confers a statutory right on a member of a bereaved family of a homicide victim to make such a statement in court. If enacted, there will be no repetition of what occurred following the murder conviction of Brian Kearney. This provision, which obliges the trial judge following a homicide conviction to receive and hear a victim impact statement, implements a recommendation contained in a recently published research paper jointly commissioned by Support After Homicide and Advic, voluntary agencies that assist victims of crime. The report was written by Dr. Joanne Cooper and drew on the experiences of the immediate family members of 31 recent homicide victims.
Substantial controversy arose as a consequence of Majella Holohan, the bereaved mother of Robert Holohan, making unfounded allegations in her victim impact statement against Wayne O'Donoghue following his conviction for Robert's death. The Bill addresses the dilemma posed by such behaviour by conferring a jurisdiction on the courts to direct the media not to report such allegations. It has been suggested by some members of the Judiciary that, where a victim so behaves, the victim should be liable to imprisonment for contempt of court. Fine Gael does not believe this to be appropriate and recognises the enormous strains and pressures that impact on victims of crime, particularly where a life is lost. We welcome the fact that, shortly after publication of this Bill, the Director of Public Prosecutions publicly stated the need for such a change in our law.
Section 20 prescribes particular directions that can be given or conditions imposed by a court on the disclosure or distribution of victim impact statements. Such directions or conditions may be necessary to protect the victim's physical safety, security, emotional welfare or privacy and can be given provided they are not inconsistent with the constitutional rights of an offender. For example, secrecy may be required in respect of a victim's residential address. Moreover, where it is in the interests of justice to protect an offender from unfounded allegations as previously mentioned, the court is empowered to prevent their disclosure, dissemination or publication. In doing so, the court cannot prevent the disclosure and publication of information concerning the impact on the victim or victims of the offence for which an offender is convicted. These provisions are of importance to uphold the integrity of our criminal justice system.
Part 4 of the Bill provides for the establishment of the Commission for the Support of Victims of Crime on a statutory basis and for the publication of a victims' rights charter. The commission, which was established by the Minister for Justice, Equality and Law Reform on a non-statutory basis in March 2005 for a period of three years, had its life extended by a recent ministerial announcement. The Bill extends its functions and renders it statutorily independent. Under the Bill, the commission will be required to promote the interests of victims, encourage good practice in the treatment of victims, devise, periodically review and, where required, update any appropriate support framework for victims, disburse funding for victim support and assistance measures and draft a victims' charter. The commission will also be required to publish an annual report detailing all services provided to victims by the State, State agencies and non-governmental organisations and highlight deficiencies in services where necessary. It will be required to review the charter, which will only be published having been first reviewed by the Houses, and publish an annual report detailing subsequent necessary changes. The commission will also be able to fund research.
The current non-statutory victims' charter published in 1999 is nearly ten years out of date and has no mandatory status. It is an information and not a rights document and its deficiencies have been substantially criticised. The commission established in 2005 commenced a review of the charter some time ago. It is clear from the framework document of the commission of 25 April 2008 published last Thursday by the Minister that the review is not yet complete, but it is unclear why this is so. The Bill provides a statutory basis for such a review and requires the preparation of a new draft victims' rights charter through a transparent and democratic process.
The Bill provides a complaints mechanism for victims whose rights are not respected. If the rights of a victim of crime are violated, a complaint can be made to the Ombudsman established under the Ombudsman's Act 1980, the Garda Síochána Ombudsman Commission or the Ombudsman for Children, whichever is relevant. The body is to investigate in accordance with its statutory provisions any such complaint received that falls within its remit. Any complaints received by the commission established under the Bill must be forwarded by it to the appropriate body for investigation. A victim whose rights are violated may also complain to the person who, under the Bill, is required to accord the victim particular rights. Failure to respect a victim's rights prescribed in the Bill or charter does not of itself entitle a victim to claim compensation in any civil action. Existing rights to bring any form of court action as a consequence of any negligence or wrongdoing on the part of the State or any State body remain unaffected.
The DPP's office has published its own victims' charter and has made clear its commitment to victims in its statement of general guidelines for prosecutors. However, organisations representing victims of crime and victims generally have sought a more proactive role on the part of the DPP's office in dealing with victims and their families, particularly in terms of providing information. This is highlighted in the excellent report entitled, A Better Deal: The Human Rights of Victims in the Criminal Justice System, completed by the Irish Council for Civil Liberties on victims' rights. The Fine Gael Bill requires that victims be kept informed of the progress of any prosecution taken and of events that occur in the courts. Moreover, there is a specific obligation imposed on the DPP to keep victims informed of any charges laid in a case and to explain the charges. The DPP is also required to inform victims of any final decision made not to charge an alleged offender.
The European Commission's report of 2004 on the implementation of the European framework decision details practices adopted in France, Luxembourg and Spain that correspond to its right to information objectives under which those involved in the criminal process, being either the senior investigative officer or the prosecutor, are required to inform victims of their rights and of the possible steps that may be taken with regard to a prosecution. The Crown Prosecution authorities in England have put in place guidelines to ensure victims of crime are kept informed and to facilitate explanations being given to victims in circumstances where prosecutions are not taken.
The European Court of Human Rights in the case Jordanv. the United Kingdom considered the failure of the DPP in Northern Ireland to give reasons for a decision made not to prosecute as being in violation of the European Charter on Human Rights. Currently, the DPP operates a blanket policy of not giving reasons for not prosecuting. It is clear that our law in this area may now be incompatible with the European Convention on Human Rights. Recognition of this in the Fine Gael Bill envisages the giving of such reasons. They can be given within a framework which does not prejudice the possibility of a successful future prosecution or violate the constitutional rights of third parties. I welcome the fact that since publication of our Bill, the DPP has commenced a consultative process on this issue. I also welcome the recommendation of the Irish Council for Civil Liberties that reasons should be given to a victim when a decision is made not to prosecute unless there are compelling reasons not to do so.
This Fine Gael Bill was published on 22 January 2008. At its launch, we called on the Government to support its passage on Second Stage and expressly stated that we would be happy on Committee Stage to take on board any constructive amendments proposed by the Government or other Opposition parties that could improve the Bill and provide to victims of crime the rights and protections to which they are entitled. I engaged in preliminary discussions subsequently with the then Government Chief Whip, Deputy Tom Kitt, and the then Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, proposing that the Government accept the general principles of the Bill and that Committee Stage be taken in the autumn, thereby affording to the Government a substantial period to prepare any amendments it considered necessary to ensure the Bill's proper workings. Rarely is a Bill published by a Minister that does not require amendment. The Immigration, Residence and Protection Bill currently before the Select Committee on Justice, Equality, Defence and Women's Rights is the subject of more than 300 amendments tabled by the Government.
There was no conclusion to these discussions prior to the recent ministerial reshuffle. Two weeks prior to the Lisbon treaty referendum, I had detailed discussions with the current Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, and briefed him on the extensive work undertaken in the preparation of this Bill. In the course of doing so, I specifically mentioned to him that we had particular regard to current legislation in New Zealand, which had been on the Statute Book for some years and was particularly comprehensive. I also advised him that the Bill reflected principles contained in the European Council Framework Decision previously mentioned.
Following the Bill's publication in January 2008, Fine Gael deliberately delayed the taking of Second Stage to give the Government an opportunity to consider its contents so that the needs of victims of crime would not become the subject of petty party political bickering and in the hope that a constructive bipartisan approach could be adopted. We originally intended taking Second Stage in May but postponed doing so due to the change in Government personnel. I informed the Minister, Deputy Dermot Ahern, we were proposing to take Second Stage on Tuesday and Wednesday of the week immediately preceding the Lisbon treaty referendum. Two days after my discussion with the Minister, Deputy Dermot Ahern, it was clear from a telephone conversation with him that the Government intended to block the progress of this Bill. As a result, Fine Gael delayed the taking of Second Stage as, in the national interest, we did not wish to have an acrimonious debate with the Government on this important Bill a week prior to the Lisbon treaty referendum with the Government engaging in conduct which would inevitably alienate Fine Gael voters.
On Sunday, 1 June 2008, the Minister's bad faith became clear with the publication in theSunday Independent of an alleged exclusive by the reporter, Jerome Reilly, outlining the Minister’s plans for “ground breaking legislation” to provide a statutory basis for the next of kin of homicide victims making victim impact statements. This “badly needed legislation”, according to the Minister’s source, as reported by Jerome Reilly, was identical to the provisions contained in the Bill published four months previously by Fine Gael and which is now before the House. From a conversation I subsequently had with Jerome Reilly, two things were clear. One, sometime late on Saturday afternoon of that weekend, he was furnished with this bogus story either by the Minister or by one of his handlers and, two, he was not informed of the existence of this Bill which was already published. The Minister’s motives for misleading a reporter in this way can only be an arrogance and overweening ego which renders him incapable of working with others to implement, with all possible speed, reforms badly needed in our criminal justice system for the benefit of victims of crime.
It is worth quoting an extract from Jerome Reilly's report. It states:
. . . sources close to Justice Minister Dermot Ahern told theSunday Independent the family of a homicide victim is almost voiceless at present. Yes, they can stand in the rain outside a Court and speak about their loved ones to the media, but they have no rights at present to voice their loss in the Court itself.
In some instances, judges at their discretion allow the next of kin to address the court but some do not. The report stated that the Minister intends introducing legislation which will place the victim at the heart of the criminal justice system.
The report continues:
By giving them a statutory right to a victim impact statement, loved ones will have a right to speak of their loss, its devastating impact on their lives and paint in what is often the missing picture at the trial — the victim of the crime. Such tragedies never have closure [the Minister's source said] but by providing for a court statement, families of loved ones might find some comfort and feel that they had some role in the court process. They will also be able to take comfort from being able to place the victim at the centre of the process [the source said].
Further on in the article it is stated that under the Minister's plan:
The statement would be given in court after a verdict is reached but, crucially, before sentence is passed. It means the statement could not influence the jury but could be taken into account by the sentencing Judge. If there is a murder conviction, a life sentence is mandatory. In cases where a manslaughter "guilty" verdict is handed down, the Judge has sentencing discretion.
The report concludes, again referring to a source "close to the Minister" as stating that "refusing a family the opportunity to have their say in Court could prolong their suffering". Of course, when the Minister, either himself or through a third party, orchestrated the publication of this story, he was unaware that Fine Gael had decided not to move a Second Stage Reading of this Bill the following week. Nothing further was heard from him on this issue until 11 a.m. on Thursday last by which time he was aware that Fine Gael had decided to move the taking of Second Stage of this Bill in the Dáil this week.