Criminal Procedure Bill 2009 [Seanad]: Second Stage.

I move: "That the Bill be now read a Second Time."

I am pleased to present the Criminal Procedure Bill to the House. This very important Bill is a core element of the Government's Justice for Victims initiative. It has been motivated primarily by my desire to improve the standing of victims of crime in the trial process. Its main elements are, therefore, focused on achieving this objective. They relate to victim impact evidence, the question of retrials following certain acquittals and changes in the rules of evidence. I will deal in more detail with each of these shortly but first I wish to put on record my appreciation for the contribution made by the Balance in the Criminal Law Review Group and its chairman, Dr. Gerard Hogan, to the debate on the suitability of certain criminal law procedures in certain circumstances. The group's analysis and recommendations inform many of the Bill's provisions.

The Bill has 38 sections and a schedule of relevant offences. Part 1 deals with standard matters such as commencement and expenses. Part 2 reforms the law on victim impact evidence. It revises and expands the current law, namely, section 5 of the Criminal Justice Act 1993. The key change is the new and much wider interpretation of who is a victim. In future, the term will apply in certain circumstances to the family of the direct victim, as well as to the direct victim. A wide definition is given to ‘family'; it includes the extended family as well as the range of other relationships that arise.

The victim impact procedures will continue to have two elements. As a first, but mandatory step, the court must still consider victim impact evidence at the sentencing stage in any trial in which there has been a conviction for an offence covered by section 5. The judge may be assisted at this stage by impact reports, often from a medical or other specialist and may hear evidence relating to those reports.

I remind Deputies that when compiling an impact report, the extended view on who is a victim will apply, with the result that the impact on the family can also be taken into account. However, the benefits of the expanded interpretation of a victim are most clearly seen in the operation of the second element, the making of an oral statement by the victim about the impact of the offence. This element operates at the discretion of the victim but when requested by the victim, the court must permit him or her to make that statement.

The most notable benefit arises in homicide cases. Until now, families in homicide cases have relied on the goodwill of the court when they sought permission to make a contribution at the sentencing stage. Now, they have a statutory right, if they so request, to be heard. This right is also extended to members of the family in cases where a victim is, as a result of the offence, too ill to deliver a statement.

I take account also of the particular needs of children, persons having a mental disorder or persons who are especially vulnerable, for example, victims of sexual or domestic violence. I am providing that a family member may speak on behalf of a child under 14 years or a person with a mental disorder. A child or a person with a mental disorder or any other person who obtains the permission of the court may deliver the statement via a television link.

For the public at large, the victim impact procedure is, in effect, the oral statement made by the victim. However, some victims are not, for whatever reason, inclined to make an oral statement. Therefore, I am providing that no inference is to be drawn that would suggest the absence of an oral statement indicates there was little or no impact on the victim. This will relieve the pressure on those not inclined, for whatever reason, to deliver an oral statement. The Bill provides the court with powers to prohibit the publication of any inappropriate remarks made in the course of an oral statement. Those remarks may arise out of frustration with the formalities of the trial process, as one can perhaps understand. However, it would be unacceptable if evidence not presented at the trial, for example, could become public through a victim impact statement. The new powers will limit any damage done by such remarks.

As I indicated in the other House, I intend to table an amendment on Committee Stage to expand the range of offences in respect of which the sentencing judge must take account of victim impact evidence. The changes I have outlined draw on the experience gained since 1993. They reflect a more sympathetic approach to victims while maintaining fairness in the trial process, as we are obliged to ensure under the Constitution.

Parts 3 and 4 of the Bill outline the circumstances in which acquittals may be set aside and new trials ordered. Part 3 deals with cases where new and compelling evidence arises or where the original trial was tainted. These two circumstances should be seen as important new exceptions to the rule against double jeopardy.

Part 4 represents an extension of the limited appeal powers currently available to the prosecution. Henceforth, where the acquittal arises from a ruling on a point of law by the trial judge that the DPP believes to be erroneous or where a conviction is quashed but no retrial is ordered, the prosecution may seek to clarify the law, as at present, but may also seek to have the acquittal set aside and a new trial ordered.

Returning to the proposals in Part 3, the double jeopardy rule holds that an acquittal is a final decision and an acquitted person may not be pursued again in respect of the same offence. Currently, the State cannot reopen a case following an acquittal, regardless of the circumstances in which it was arrived at. However, a convicted person has full rights of appeal against both conviction and sentence.

The House will agree that we should review these arrangements. The purpose of a review must be to enhance the rights of the other parties without diminishing a defendant's rights. There is a public interest in respecting the finality of proceedings. The public interest would not be served if every acquittal were potentially subject to being set aside; that would diminish the integrity of the criminal process and would deprive acquitted persons of their entitlement to the presumption of innocence. Nevertheless, acquittals that are the result of perjury or the concealment of evidence, for instance, cannot be said to be deserved. The Bill is, therefore, targeted at and limited to those most undeserved acquittals.

The procedures to be followed for applications for retrials under Part 3 are set out in sections 8, 9 and 10. It is a rigorous process. The DPP may apply to the Court of Criminal Appeal for a retrial where he believes the acquittal was not merited. It is for that court, or, in the event of an appeal, the Supreme Court, to decide whether a new trial should take place. The DPP may apply on one occasion only.

If the DPP's application is based on the availability of new evidence, it must be compelling. It cannot have been available at the first trial and it must be clear that even with the exercise of due diligence by the Garda and the prosecution, it could not have been presented at that trial. Critically, it must be of a standard that implicates the person with a high degree of probability in the commission of the relevant offence. However, the guilt or innocence of the accused remains a matter to be determined by the jury in the new trial. On Committee Stage, I will be proposing some helpful clarifications to the provisions on new and compellingevidence.

It will generally be necessary for the Garda to investigate new evidence before the DPP can decide whether to apply for a retrial and its report on the investigation can be expected to feature prominently in many applications. Sections 15 to 18, inclusive, set out the powers available to the Garda for investigations under this Bill. It will be noted that, since the procedure is exceptional, the Garda may exercise those powers in respect of an acquitted person only where it has prior judicial authorisation to do so.

I have used the term "relevant offence" a number of times. An application for a retrial that is based on new and compelling evidence may be brought only where the offence is a "relevant offence". For the most part, relevant offences are offences that carry a mandatory or discretionary life sentence. The Schedule contains the full list of the relevant offences. It will be noted that cases where special verdicts are recorded under the Criminal Law (Insanity) Act 2006 are exempted from the scope of this category. Limiting the Bill's scope to the most serious offences underlines the measured approach I am adopting.

A retrial can be sought in any instance where the case was tried on indictment if the acquittal is tainted. A tainted acquittal is one that results from an offence against the administration of justice, in other words, where it results from bribery, perjury, intimidation or any activity designed to pervert the course of justice. Two conditions apply before an application can be brought under this heading. There must be a conviction for an offence — perjury, for example — and there must be reasonable grounds to believe that the offence affected the outcome of the trial.

The acquitted person's rights are respected. The acquitted person is put on notice of the DPP's application for a retrial and may attend and participate in the hearing. Legal aid will be available. If an acquitted person fails to attend and the court decides that it is in the interests of justice that it proceed with the application, it may order a retrial and may also issue a warrant for the arrest of the person. Before granting an application for a retrial, the court must be satisfied not only that the DPP has complied with the requirements as set out in the Bill but, crucially, that it would be in the interest of justice to order a retrial.

The integrity of any retrial must be protected. Care must be taken to avoid publicity in advance of a trial that might influence potential jurors. The court may, therefore, order restrictions on attendance at and reporting on the hearing of the DPP's application. The restrictions can be maintained until the new trial has concluded. Any decision by the Court of Criminal Appeal on an application for a retrial may be appealed to the Supreme Court on a point of law.

"With prejudice" appeals under Part 4 are by the DPP or, in some cases, the Attorney General, to the Supreme Court against a ruling on a point of law by a trial judge that the DPP believes to be mistaken and where the ruling can be shown to have resulted in an acquittal. I propose an amendment to section 23 to ensure the basis for "with prejudice" appeals is set out very clearly.

An appeal might relate to rulings on the admissibility of evidence, for example. Until now, such appeals were available only on a "without prejudice" basis; in other words, the outcome did not alter the position of the acquitted person. "With prejudice" appeals go a step further by seeking to set aside the acquittal and to have the case retried.

The procedures for applications under Part 4 are similar to those I have outlined for cases under Part 3, including, when necessary, the same restrictions on reporting. A retrial in any of the three scenarios covered by the Bill will entail a full rehearing of the case. If convicted, the person is liable to the prescribed penalty for the offence in question. The usual rules on access to legal aid will apply.

Before I leave the subject of retrials, I want to deal with the important question of retrospective effect. The Bill provides for the possibility of a retrial that is based on new evidence or where the acquittal was tainted but only where the person was charged with the offence on or after the commencement of the new legislation and was subsequently acquitted. It is the date of acquittal rather than the date of commission of the offence that is the key consideration. In "with prejudice" appeals, the possibility of bringing an appeal will arise where the acquittal takes place on or after the commencement day. Therefore, in all three scenarios, the acquittal must occur after the commencement date.

Deputies will have noted from my remarks that the Bill does not have general retrospective effect. They will also be aware that there is a general presumption in criminal law against retrospection. Many are aware that Article 15 of the Constitution and Article 7 of the European Convention on Human Rights both make clear that an act that was not an offence when committed may not later be regarded as an offence. Despite that background, the relevance of Article 15 or the European Convention on Human Rights to the issues raised by this Bill is limited. What is very relevant is a different but equally important issue, namely, the separation of powers. Everyone in this House is aware of how fundamental a principle it is in our constitutional structure.

Let me spell out as clearly as I can how the issue arises. We start by recognising that a verdict is a decision of a court and of a court only. Under the current law, the effect of a verdict that acquits a person is that the person is free from further proceedings in respect of that offence. Any retrospective change in that position would amount to interference by the Oireachtas with the workings and independence of the courts. That, of course, would be a serious infringement of the separation of powers. It is just not permitted by the Constitution in my opinion and that of the Attorney General. There is substantial jurisprudence in this jurisdiction to support the advice I have received on this issue.

I am anxious to maximise the impact of the legislation provided, of course, that we respect the constitutional position. I am, therefore, pleased to indicate that I have been advised that the scope of the Bill can be extended to cases charged before but tried after its commencement. I propose to introduce an amendment to that effect. This is a small extension but it is an extension nonetheless. I listened with interest to some of the comments made by Senators in this regard when the Bill was before the Upper House.

I wish to deal with the changes in the rules of evidence contained in sections 34 to 36, inclusive. Section 34 is the most significant in this regard. It amends the Criminal Justice (Evidence) Act 1924 and addresses the anomaly whereby there are no consequences where the defence impugns the good character of a person who is not a witness. A witness can, of course, defend himself or herself while on the stand but the difficulty arises where the person whose character has been impugned is the victim and has, as a result of the offence, died or is so ill that he or she is unavailable as a witness for the prosecution. The amendment will ensure that a defendant who impugns a victim's character risks having his own character examined. He may, in other words, find that he has what is termed "dropped the shield". This change will prevent further abuse and anguish for, in particular, the families of victims who were either killed or seriously injured. I should point out that a defendant is not prevented from raising bona fide defences such as provocation or self-defence, even where to do so might suggest a degree of culpability on the part of the victim.

In other changes, section 35 requires prior notice from the defence of an intention to call its own expert evidence. The new requirement will enable the prosecution to better assess material that is often complex.

Section 36 establishes a new procedure designed to facilitate the earlier return of property held as evidence. Such property often belongs to victims and, until now, they have been at the loss of it until proceedings have been completed. The new measure will ease that difficulty in many cases. A number of Members will be aware of the type of cases to which I refer in this regard.

In other provisions relating to procedural matters, sections 31 and 32 remove the requirement that a convicted person must obtain a certificate from the trial court or the leave of the Court of Criminal Appeal before being allowed to appeal to that court. Section 33 amends section 29 of the Courts of Justice Act 1924 and clarifies when a defence appeal may be brought to the Supreme Court even where the Court of Criminal Appeal has already granted a retrial. Section 37 clarifies the time limits for the preparation of the book of evidence. Section 38 adds the common law offence of breach of the peace to the schedule to the Criminal Justice Act 1951, thus clarifying that it may be tried as a summary or an indictable offence, as appropriate.

I have already identified the Committee Stage amendments that arise directly from the Bill before the House. In addition, however, two small amendments arise from recent judgements, relating to the grounds on which a failure by an accused to appear on the appointed remand date may be excused and the circumstances where bench warrants may be issued.

This Bill will bring about much needed reform. It places the victims of crime on a new and stronger footing within the trial process. In addition, it opens up the possibility of retrials for those whose acquittals are undeserved and it corrects an unacceptable anomaly in the rules of evidence. The integrity of the criminal justice system will benefit from the changes I am proposing. The Bill undoubtedly breaks new ground but it does so in a way which is measured and which respects long-established and cherished legal principles.

I commend the Bill to the House.

I welcome the Bill on behalf of the Fine Gael Party. Measures to reform the criminal law procedures are overdue, particularly in view of the fact that three years have passed since the review group on the balance in the criminal law — the Hogan committee — presented its report to the Government. I join the Minister in complimenting the Hogan committee on its good work. I also join him in complimenting the chairman of that committee, Professor Gerard Hogan, who was probably the chief architect of its report. In that report, the group states, "Some element of re-balancing of the existing rules is required to enable the courts to arrive at a just and fair result in criminal cases". That is the basis on which we, as the legislators who introduce the rules and regulations that are interpreted by the courts and lawyers, wish to proceed.

Many legal rules were developed prior to the universal availability of legal aid in criminal cases and for those unable to pay for representation out of their own means. The report also states:

In addition, some jurisprudence since the 1960s has had the effect of extending the protections available to defendants, including the development of an extensive exclusionary rule where evidence is generally excluded where the accused's constitutional rights have been infringed. Criminal defendants now also have the benefit of statutory human rights protection under the European Convention of Human Rights Act 2003.

The group concluded that these and other developments may have had the effect of gradually tilting the balance "in favour of the criminal defendant". I welcome the Minister's response to the assertion on the part of the expert group that a serious problem existed within the criminal justice system. It was alarming and significant that the group formed the view that the balance had tipped in favour of criminal defendants. What we and the Minister need to do is, in furtherance of the common good, tilt the balance back in favour of victims.

It is clear that there is a pressing need for reform. The Bill reflects many of the recommendations made by the review group. In general, the Fine Gael Party is in favour of the Bill. I am pleased the Minister has accepted the argument from those on this side of the House with regard to the need to provide, in certain circumstances, meaningful rights for the victims of crime and their families.

Last year, Deputy Shatter and I brought forward the Victims Rights Bill. I regret the fact that the Minister did not take the opportunity to deal in a more comprehensive way with many of the provisions contained therein. During the debate on the Bill to which I refer — I reiterated the point last week — I stated that those of us on this side of the House do not profess to possess any great measure of expertise. We do not have access to the same level of support — legal or otherwise — as that which is available to the Minister from the Attorney General and officials in his Department.

The Deputy has access to Google.

However, there are occasions on which proposals of a significant nature emanate from this side of the House. It is regrettable that the Minister, perhaps more than any of his predecessors, is inclined to play the narrow, partisan political card on almost all occasions. That gives rise to a measure of cynicism on the part of the public.

If the Minister had been present at yesterday's meeting of the Joint Committee on Justice, Equality, Defence and Women's Rights, he would have witnessed a robust defence of the powers of that committee by such colleagues of his as Deputies Treacy and Thomas Byrne. The latter extolled the powers of the committee in the context of influencing the Government and amending legislation. As the Minister is aware, in order for amendments to be accepted by the Select Committee on Justice, Equality, Defence and Women's Rights they must first attract his approval or blessing.

The position is the same for any committee. It is called democracy.

That approval or blessing is rarely, if ever, forthcoming.

That is not the case.

The Minister did a disservice to himself and his office in the context of the manner in which he ridiculed and dismissed the Bill brought forward by Deputy Shatter and me on the occasion to which I refer. I remind him that the purpose of said Bill was to give the victims of crime comprehensive statutory rights under our law for the first time. Its provisions required that the State and its agencies should inform the victims of crime of the appropriate and necessary services available to them. In addition, victims would be kept fully informed of progress made in the investigation of crimes reported by them, the progress before the courts of any prosecution initiated and the outcome of any court proceedings relating to an alleged or convicted offender in respect of the offence committed. It must also include the outcome of any court proceedings relating to an alleged or convicted offender in respect of the offence. Moreover, following conviction, victims should be entitled to make representations on the application of a convicted offender for parole or release.

The Fine Gael Bill sought to introduce a greater level of transparency and accountability into this aspect of the criminal justice system. Recently, a case was brought to my attention in which a convicted criminal, jailed for a serious assault on a young woman, confronted his victim at a supermarket checkout three years after he was jailed. The unfortunate victim had no information that the perpetrator of a vicious and serious assault upon her had been released from prison prior to the completion of his full sentence. The Minister will agree this is unacceptable. Whatever measures are necessary must be taken to ensure such situations do not occur. It is essential legislation is adequately and properly enforced and resourced.

The Fine Gael Bill provided that an onus be placed on State agencies to provide information to the victim or the victim's family on the supports they can provide. It also contains provisions ensuring information was given to victims and their families on the matter of the investigation; the proceedings; the range of penalties, ASBOs — few of which have been issued by the courts despite the Minister's assertions to the contrary; parole board applications by a convicted person; and the anticipated release date of a convicted person. It sought to ensure victims had an opportunity to make representations to court in respect of bail applications by the accused; victims would be made aware of any breaches of bail conditions, if bail were granted; and the opportunity to make representations to the parole board or the Minister for Justice, Equality and Law Reform on the release date of a prisoner.

The Minister rightly referred to the constitutional independence of the courts. However, there is a grey area in how the Minister for Justice, Equality and Law Reform can exercise a quasi-judicial function in signing off on parole or early release. If the Minister is to remain independent of sentencing matters, then allowing the Minster to exercise judgment on the commuting of a prisoner's sentence runs contrary to this. This is a matter that should be examined on Committee Stage.

Does Deputy Charles Flanagan want to have non-elected persons decide then?

The Fine Gael Bill would place the commission for the support of victims of crime on a statutory basis for the first time. In the case of sexual assault cases, victims would have the option of making the names of the accused public while theirs remained anonymous. The current position is that for the accused's name to be made public the victim must also go public, an unfair provision that places the victim in an invidious position.

The Bill proposes the establishment of a victim's charter of rights which may be asserted by way of application to the Ombudsman. This would not, however, entitle a victim to claim in a civil court for this right but neither would it prejudice his or her right to claim against the State for negligence in the normal way. The effect of such a claim is limited to the commission for the support of victims of crime being informed of the breach of the right and that no other penalty is imposed.

It is regrettable many of these important provisions have been omitted from the Criminal Procedure Bill 2009. I hope that on Committee Stage we might have a more mature and constructive debate than we have had. Deputy Alan Shatter is keenly aware of the victim's status — or lack thereof — in this jurisdiction. He has worked on the Fine Gael Bill for many years which is more comprehensive than the Government's. Although the period of engagement promised by the Minister would have allowed him to come forward with comprehensive victims' rights-based criminal procedure legislation, he has not. The Minister seems to have a closed mind on this matter. I hope his colleagues, Deputies Thomas Byrne and Treacy, on the justice committee will have an opportunity and be better placed than I am to open the Minister's closed mind. He has adopted a narrow-minded approach, the result of which will be a poor service to the victims of crime and their families who will ultimately lose out.

However, I welcome provisions in Part 2 regarding victim impact evidence and the decision to extend to family members of victims of crime the entitlement to make an oral statement or a victim impact statement at a sentencing hearing. I note the provisions dealing with double jeopardy which deal also with such issues as intimidation, errors in trial and new evidence emerging which may not have been available at the time of the original trial. We must ensure this welcome provision is robust enough to withstand any constitutional challenge.

Speaking on this Bill in the Seanad, my colleague, Senator Eugene Regan, referred to the constitutional basis of the rule against double jeopardy, the provisions of the European Convention on Human Rights and the Charter of Fundamental Rights, now part of European Community law, and the necessity to ensure this Bill is compatible with these fundamental legal texts.

There is an obvious need to strike a balance between the rights of the accused and those of the community. It is most desirable that guilty parties who have escaped conviction as a result of, for example, a lack of scientific evidence such as DNA evidence or through witness intimidation, are held to account. In this regard, I welcome the publication of the Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010 and look forward to debating its provisions in the near future.

Judges frequently refer to the need for action from the Legislature to make the law certain. The rule concerning double jeopardy is one that must be addressed by the Oireachtas, taking cognisance of the jurisprudence of the European Court of Human Rights and the provisions of the Constitution. Many lawyers have expressed concern at what they see as an ongoing erosion of rights by the Government in recent years. The Minister championed the recent package of criminal justice legislation on the basis he was tightening up the law to ensure greater levels of conviction. In this regard he invoked the powers, practice and procedures of the Special Criminal Court.

Of course we must proceed with the utmost caution when making changes to age old principles concerning the right to a fair trial, and concerning the golden thread of the criminal justice system, namely the right for an accused party to be regarded as innocent until proven guilty beyond reasonable doubt. In this regard, there is a considerable onus on us, notwithstanding what members of the Judiciary might say from time to time regarding changes in legislation. We must be absolutely certain here in this House that poor resourcing is not holding back convictions before we change legislation and examine legislative reform. I do not accept that by changing legislation we will deal with matters comprehensively. On calls for changing of the legislation and press conferences by the Minister for Justice, Equality and Law Reform in the presence of the Garda Commissioner following the recent continuous litany of serious and organised crime, legislation alone will not address the issue. We would be doing the public a considerable disservice if we were to take the view that legislation is the answer rather than the matter of resourcing.

A case in point is the lack of resources in the area of DNA evidence. I would strongly argue that lack of resourcing in that area may have prevented convictions being secured in the past It may be not so much the need to change our legislation but rather the lack of will to apply appropriate resources that would make the fundamental difference and achieve a higher level of conviction. As I have stated previously, I would urge the Minister with this legislation, as with any other, to look at resourcing as a first resort and, perhaps, changing the law as a secondary resort.

The balance in the Criminal Law Review Group recommended an exacting threshold in respect of the DPP requesting a retrial and to preserve the integrity of our criminal justice system, it is essential that in the legislation we provide such a threshold. I would be supportive, as I have stated in the past, of the idea of allowing the DPP to have a right of appeal to the Supreme Court on a with-prejudice basis against an acquittal, where the acquittal arises from an erroneous ruling by a lower court on a point of law. I note what the Minister stated in his speech about the need to set out clearly the grounds, which are not set out in the Bill as initiated or, indeed, as passed by the Seanad. It is important that not only do we set out clearly the grounds, criteria or qualifications, but also, as the Minister underlined, the guarantee of legal representation and the covering thereof. I would also support the right of appeal by the DPP against a decision by the Court of Criminal Appeal not to order a retrial following the quashing of a conviction.

Section 19 of the Bill again reflects what my party has been saying on the admissibility of evidence. We introduced a Bill reforming the law in respect of admissibility of evidence last year but, regrettably, it was subject to the hammer blow of the current Minister. I welcome the introduction of greater measure of flexibility regarding admissibility and measures to provide that evidence that may be obtained by means of some technical error in procedure by the Garda Síochána will not be deemed automatically precluded as evidence in a trial.

I also welcome the provisions to expand the procedure regarding evidence by video link, especially where children are concerned. I was pleased with, and congratulate the Government on, the fine complex which is the criminal courts building, which we had an opportunity to visit in recent times. The layout of rooms and the conditions there are second to none. Doubtless had the building not been constructed during the course of time in which it was, it probably would fall subject to the straitened economic circumstances into which the Government has led us. Its conditions include the video link, the children's suite, the witness suite, and the essential provision that defendants are kept separate in so far as possible from witnesses. Only this week a rather chilling experience was brought to my attention where a witness in the course of a court action openly issued a threat in the form of intimidation to a witness within the court building, almost in front of the judge. Undoubtedly, this must not be tolerated in the criminal justice system.

On the matter of the absence of information to victims, the Minister has been particularly strong on the need to ensure that victims are fully informed as to the process. Only this week, an extremely disturbing case has been brought to my attention where, in the aftermath of an horrific murder of a young girl in Cork in 2002, the person responsible pleaded guilty, was convicted by the courts on a guilty plea some short time thereafter and was given a life sentence and a consequent 15 year sentence for the attempted murder of another person. Eight years later, this matter is still before the courts. Eight years later, and having regard to the fact that the person who committed the murder entered a guilty plea, the family of the girl who was murdered have not been fully informed as to the proceedings. Who speaks for the family? Certainly, it is not the defendant or his legal team who are engaged in the lengthy appeal process, not the Attorney General and not the Minister for Justice, Equality and Law Reform, the latter two of whom are named parties in the proceedings. I wonder where is the redress for a family who merely seek to be fully informed as to the process. It appears that it is not the job of the Attorney General, it is not the job of the Chief State Solicitor and it is not the job of the Minister. Whose job is it? When we state that we need to include the victim in the process and to ensure that the victim is fully informed, I understand how the gardaí might do it in certain circumstances but in the case to which I refer, where the matter has been subject to various legal arguments in different court fora over an eight year period and is still not concluded, one must ask the question, who represents the victim in such circumstances, particularly when it is a traumatised family who have yet to see closure on what was a horrific murder of a daughter and a sister? It is essential that we not only enhance by way of legislation victims' rights and build into our laws procedures that will bolster the rights of the victim, but also ensure that the legislation is proper and adequately resourced.

This is an important Bill. It encompasses a great deal of criminal practice and procedure. There are issues which will require greater scrutiny and amendment on Committee Stage. I look forward to re-engaging with the legislation then.

I join the Minister and Deputy Charles Flanagan in commending the work of the review group and Professor Gerard Hogan. I am glad to be able to give a broad welcome to this Bill which introduces some reforms of the criminal justice system and which has clearly been informed by the proposals of the review group, although the proposals therein are not identical to the review group's in all respects.

There are matters that will require to be teased out on Committee Stage but, in principle, I welcome the prominence given to revision of the existing statutory provisions for victim impact statements and to widening the range of persons who will be entitled to make such statements. However, I have some questions for the Minister in that regard.

The rule against double jeopardy, meaning that a person acquitted of an offence may not be retried, is a long-standing precept of the common law probably best outlined by Lord Wilberforce who stated:

. . .any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility, and having reached that solution, it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interests of peace, certainty, and security, it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: those values cannot always coincide.

In addition to the common law, the rule is also enshrined, as the Minister remarked, in the protocol of the European Convention on Human Rights. The rule against double jeopardy was amended in England and Wales earlier in this decade and in a number of other common law jurisdictions. Irish jurisprudence shows that the rule against double jeopardy has caused some misgivings down the years, and it is interesting to trace the law on this issue. I presume it is in response to that that we have Part 3 of this Bill where the Director of Public Prosecutions will be entitled to apply to the Court of Criminal Appeal for an order quashing a person's acquittal and ordering a retrial.

As I understand it, the Director of Public Prosecutions may apply for a retrial in two circumstances — where new and compelling evidence has become available and where an acquittal is tainted. With the development of DNA and in the current environment where gangland feuding and serious criminal trials are of such a character, it is possible that the occasional acquittal is tainted.

The tests that will apply in the legislation seem to be properly restrictive and rigorous. Most reasonable people would assent to departure from the rule on double jeopardy in the circumstances prescribed. For example, in the matter of new and compelling evidence, it must be evidence that is reliable and substantial in character which directly implicates the acquitted person and that the evidence was not adduced in the earlier proceedings and could not have been so adduced.

I do not believe anyone could take serious issue with the court being empowered to make an order for a tainted acquittal to be quashed and the person retried in the limited circumstances prescribed. An offence against the administration of justice in this context means an offence under section 41 of the Criminal Justice Act 1999 — in other words, intimidation; bribery, corruption, interference with a juror, a witness, a judge or a court official; attempting to pervert the course of justice; perjury; the making of a false affidavit; or conspiring or inciting another person to commit any of the above offences.

At the same time, the recommendation of the Irish Council for Civil Liberties that the Bill should be amended in order that the new provisions apply only to the most serious indictable crimes has a great deal of merit. The Irish Council for Civil Liberties also recommends that a statutory witness protection scheme be established. The Minister will know I published a Private Members' Bill in that regard. It would appear my Bill is being resisted by the Garda Síochána, and perhaps it has good reasons or good arguments for doing so. However, I have not been told what they are.

I recall the Garda Síochána similarly resisted the Private Members' Bill I published on Garda surveillance. Again, perhaps the Garda had good arguments but it never made them public, nor did it relay them to me and, strangely, they were withdrawn as soon as the Minister for Justice, Equality and Law Reform needed to be seen to be doing something.

I have great concerns about the practice in the House, more so with this Minister than with some of his colleagues and some of he predecessors, where one publishes a Private Members' Bill and arguments are dredged up stating that we cannot do something because it would only make the situation worse, that the Minister is advised by the Attorney General that it is not permissible or that the Garda Síochána is resisting it. A year later after another atrocity, if not the same Bill but one with the same intent is given expression in law which was out of bounds one year earlier. I have never been able to get my head around that. Is it that we are just enacting law to be seen to be doing something but that it is envisaged that much of the law will never be invoked? It is a real concern.

I do not know which solutions are best but I have grave reservations about the adequacy of the measures in place for the management of the non-statutory witness protection programme. I have direct knowledge of serious criminal trials where innocent persons were required on pain of incarceration to give evidence and they did so in fear of their lives. These persons have paid a huge price for doing their duty by the State, including loss of employment, break-up of marriages and dislocation from their own environment, and they believe their lives are atrisk.

The Minister must turn his mind to this issue and the obligation on the State to provide reasonable ongoing protection for citizens who have done their duty by the State at such personal cost and who live in ongoing fear of their lives. There is no statutory witness protection programme and it seems to happen on a fairly haphazard basis.

By its nature I cannot go into it in the House but I suspect the Minister is probably in possession of the same knowledge as I am. He knows that as a result of happenstance one can find oneself, in effect, compelled to give evidence in a serious criminal trial. One may feel it is one's first duty as a citizen and, at great risk to oneself, come forward to give evidence. One may also be obliged by the State, on pain of incarceration, to come to court and give evidence. One may believe one is on an informal witness protection programme. I am aware of a number of cases where witnesses did their duty and now find themselves in circumstances where they lost their employment, cannot go to work where they always did, spent some time out of this country, have come back and are fearful their place of abode will become public, and genuinely fear for their lives.

If I had the answers I would tell the Minister what they are — it is probable he is also having difficulty in deciding what are the best solutions. In an environment where cold-blooded, vicious crimes are committed regularly and so much of the valuable work done by the Garda Síochána depends on it being able to produce a witness in court who can give testimony to having seen the crime committed, which is critical for a conviction, we have a responsibility to protect such people. That is not necessarily happening at the current time.

The Minister's contribution contained substantial references to the issue of retrospection and he set out a cogent riposte. I presume he has done so because he has been subject to representations from colleagues in the House on this issue. Deputy Sherlock raised this issue with me on a number of occasions. I suspect I recognise similarities in a case adduced by Deputy Flanagan. The issue which arises is that of retrospection. The Minister, on the basis of the separation of powers, seems to have the view that there is a constitutional impediment to dealing with the issue of retrospection. I do not know what will be the effect of the limited amendment which the Minister promises us.

From the Minister's comments, I understand he can extend the scope of the Bill to cases charged before but tried after the commencement of the legislation. I have no knowledge of how many cases such a provision is likely to capture. Colleagues who have made representations to me on this point argue that similar legislation has been made retrospective in the United Kingdom, or as it relates to England and Wales. The Minister will draw my attention to the fact that we have a written Constitution, the separation of powers is paramount and that is something with which such a provision would interfere. It is something I would like to tease out on Committee Stage because a number of colleagues from various parties in the House are concerned about this aspect of the Bill.

The attention given to victims and their being brought more to the forefront is welcome. I welcome it and agree with the remarks of Deputy Flanagan. Section 5 of the Criminal Justice Act 1993 introduced a procedure for victim impact statements, which is the provision under which we have been operating. I understand the review group took the view that previous difficulties with victim impact statements should be ameliorated in the interests of doing justice to all victims of crime and that the statutory provision should be recast so as to permit the persons most directly affected by an offence, such as the next of kin of a deceased victim of crime, to give evidence at the sentencing stage.

However, this would be subject to the discretion of the court where the impact on the person was too remote or where more than a very limited class of immediate relatives wished to make a statement. Some flexibility in judicial discretion would be of benefit to deal with situations where a deceased victim left an unmarried or same-sex partner behind or where more than one separate family member wished to make a statement. In order to avoid any possibility of inappropriate use of statements, the amended statutory provision, as recommended by the review group, would include a power vested in the court to direct that the statement as delivered or any part of it would not be published or broadcast without prejudice to any other power of the court, something with which we all agree.

The review group said it would seem to be a sensitive way to deal with any such problems which would suffice in the vast majority of cases where any issue might arise. The relevant provisions in the Bill, as published, are sections 5 and 6 and the explanatory memorandum tell us section 5 of the Bill amends the 1993 Act by inserting a new section, section 5(a), the purpose of which is to allow a child, a person with a mental disorder or any other person, with the leave of the court, to make a victim impact statement by means of a live television link, thereby removing the requirement that the person be present in court.

Section 6 goes further and its purpose is to make provision for any questioning of a child or a person with a mental disorder regarding his or her victim impact statement to be done via an intermediary. The explanatory memorandum states the court may appoint an intermediary where the age or mental condition of the child or person is such.

I do not recall it was ever the intention of the victim impact statement process to allow for cross-examination by counsel of surviving members of a family, let alone the cross-examination of children or persons with a mental disorder. I may be alone in this but I cannot believe that most people would believe, as happened in the recent Lillis case in the Central Court, that a case should end with a victim impact statement from the child of the family concerned being subjected to cross-examination by counsel or intermediaries in a public forum. I cannot believe there is public demand for the cross-examination of children or persons with mental disorders in the witness box in a case where one parent has killed the other.

On the one hand, one can argue that it is important that justice be administered in public. Thus, a statement from a child should be read out and be subject to cross-examination. On the other hand, the potential for the cross-examination of a family member, never mind a cross-examination of a child or a person with a mental disorder, on his or her victim impact seems to me to be prurient and not to serve any public interest. Is it the case that a statutory law reform measure which used to be about victim impact statements and how they should be received prior to sentencing has now become a measure to receive additional evidence that serves only a public appetite and has nothing to do with the sentencing process?

We must consider, perhaps not in regard to this Bill but to the discussion we have had and the points raised by Deputy Flanagan, whether new law is always the answer to our problems in the criminal justice system. No matter how many new laws we enact the question of enforcement arises. In the criminal area the question arises of detections and convictions, which are falling. We are not having and have not had any debate in this House — although we should — on the most recent report from the Garda Síochána inspectorate. I raised the matter with the Minister by way of a parliamentary question recently but he was not having one of his better days and I got no answer. However, he is a very affable fellow in private——

——and I know he will eventually come around to talking about it but some very serious issues were raised in that report. Obviously, the Minister is the sort who puts on the green jersey and says: "I am the Minister for Justice, my job is to defend the Garda Síochána and is it not terrible what they are saying on the other side of the House?" What we are saying on this side of the House is intended to assist the Garda Síochána and the very many thousands of people in the force who want to do their job in accordance with modern management practice and best practice in general.

The 25 or 27 recommendations in that report are very worrying. In the land of the Celtic tiger, I do not know how we reached the year 2010 when the assistant chief of the association of Garda sergeants and inspectors can say on the radio that most Garda stations in Ireland do not have e-mail. It is little wonder that the left hand does not know what the right hand is doing.

I do not know what action the Minister is taking on that report. He was preceded by similarly stellar personalities, including the former Minister, Michael McDowell, and the present Minister for Finance, Deputy Brian Lenihan. Over all those years the chant was "Garda reform". Then along came the woman from Boston who put together a report on the actuality on the ground. One wonders then about all that huffing and puffing. Does the Minister remember the whirlwind the former Minister, Mr. McDowell, created about the Garda reserve force? One is left with the conclusion that it was a smokescreen, meant to divert from more fundamental issues. I know the Minister would not engage in anything like that but he must ask the Government Whip to provide time in this House so that we can debate that report and hear the Minister's assessment and that of his officials in regard to it.

We could be passing law in this Chamber until the cows come home but if it is ignored, not invoked or not implemented, for whatever reason, whether through lack of resources or modern management techniques, inadequate technology or other resources necessary for the Garda Síochána not being provided, then we are wasting our time in making new laws and adding to those that are not being implemented.

I broadly welcome the Bill the Minister introduced to the House today. My colleague in the other House, Senator Bacik, raised some points I would like to tease out with the Minister on Committee Stage. For example, and to give the Minister notice, she raised the question of the court to which application is to be made being the Court of Criminal Appeal. She said that was not envisaged by the review group which made various criticisms of the manner in which the jurisdiction of the Court of Criminal Appeal has developed. The group specifically recommended that greater rationality — its term — be brought to bear on the piecemeal — its term — development of the jurisdiction of that court. The review group was of the view that it would be appropriate for appeals against acquittals to be brought to the Supreme Court. In regard to double jeopardy the group recommended that the prosecution right could be exercised if the Supreme Court so decided. In other words, it recommends that this should be a matter for the Supreme Court rather than for the Court of Criminal Appeal.

Senator Bacik also raised concerns about certain provisions of the Bill, namely, whether its restrictions are adequate. She said, for example, that under section 16 the District Court may approve the arrest and detention of an acquitted person in respect of whom no retrial order has yet been made. In other words, the Garda can seek right of re-arrest from the District Court before an acquittal has been set aside and a retrial ordered. As a constitutional lawyer, she said she is not convinced that would necessarily be constitutional. As the Senator suggested, I suppose there is always the danger of flight. It may be considered overall in the interests of justice and the public interest that the procedure as envisaged in the Bill should go ahead. However, I would like to hear the Minister address that point. Is he satisfied that it is compliant with the Constitution?

I refer the Minister to the submission which I am sure he has received on this matter from the Irish Council for Civil Liberties. I do not want to see a pained expression come over the Minister's face because, believe it or not, broadly that body is in agreement with him. That is a day he should celebrate and be happy.

I should. It shows how much attention I pay to it.

It does. I agree with the Minister. The ICCL makes the point it does not consider that the proposed amendment of criminal procedure rules will result in any significant changes for the victims of crime. The central and unique selling point of this Bill is that it is about making significant changes for the victims of crime. Referring to the document it published some years ago, "Better Deal", the council refers to the fact that the majority of crime victims do not see rules of evidence and criminal procedure as an effective means through which to vindicate their rights. They wish, rather, to see real practical changes in their treatment within the criminal justice system. Amendments to the regime surrounding the use of victim impact statements are a welcome development. However, the victims of crime should be placed centre stage in any reform of the law and the Bill currently fails in that regard.

For example, the Bill does not identify the personnel who will guide victims through the victim impact procedures, whether these be the Garda, the judge, the Courts Service or any others. To some extent that pours a bucket of cold water over the proposition that this Bill is a giant leap forward for victims. It is a modest reform which I welcome but the matters referred to in what was a seminal document, published some years ago by the ICCL, are still worthy of attention as is the possibility of amending this Bill to provide for some of the tangible changes that body sought.

I am glad to have the opportunity to speak on this legislation. We are allad idem with regard to the need for respect for the law, for its integrity and for its strict enforcement. We agree in particular that we must ensure the law warrants respect and has an integrity for which the public has regard. I am the only Member here at present with no qualification in this area, but I read up on it from time to time. We live and learn.

An issue that has come to our attention in recent times is the situation with regard to victims. Victims, and the relatives of victims when the victim is no longer alive, are in a precarious situation because a life that is lost cannot be replaced. There can be no redress for that loss. There has been criticism of some victim impact statements in the past because people wonder why the statement is made when it can do no good at that stage. We must recognise that the family of the victim — mother, father, wife, husband or whatever — looks at the issue from a different viewpoint. While it may be all very well to be able to say a decision has been made on what technically and legally happened and the perpetrator has been sentenced to five years imprisonment or whatever, the victim's family and the victim, if he or she is still around, see things quite differently. We must recognise this. We should all think about how we would feel if we were in that type of situation and whether we would have absolute regard for the niceties of the law when phrasing what we had to say. I believe some of the statements that have been issued have been issued with great restraint, even though there has been criticism of them. I hope the Minister will keep this in mind.

It is generally recognised that a clever defence and careful thought in the preparation of a case can lead to a perpetrator getting a lighter sentence than might be the case in different circumstances. This must be borne in mind. It should never become possible for somebody to commit an atrocity, whether serious injury, assault, a killing or any such crime, and be able to walk away from the situation or attempt to get away with it on technical grounds. Such cases provide no relief for unfortunate victims. No matter on what technical grounds a case is dismissed, the fact remains that the offence took place. What respect is demonstrated for the law in such a situation? There has been absolute contempt for the law in this country for some considerable time. The greater and more serious the breach of the law and the more serious the offence against the person, the State or whoever, the greater the possibility of the perpetrator getting away with it. Some perpetrators have established almost iconic status for themselves due to the manner in which they have managed to evade justice.

I and others on this side of the House cannot understand how the area of organised criminal activity goes unchallenged. This activity continues even as we speak. Some criminals have established a kind of celebrity status due to the degree to which they have managed to intimidate the system, the community and ordinary people and get away with it. This cannot be allowed to continue. The Minister has introduced restrictive legislation, which I support, to tackle these issues, but nothing seems to have happened as a result. We discovered last week that some sections of a Bill have not been enforced at all. I expected serious criminals would be put behind bars and we would see the effect of the legislation within three or four months. What are we waiting for and why are we waiting? The information is available and the criminals are known to the Garda. I am sure gardaí have the information piled up. What is the reason for the delay? Are we waiting to process passports for them to enable them to leave the State rather than get caught? If we were to ask ordinary people about this, we would be made aware they have become very cynical about this kind of thing. They are asking us what is the reason for the delay in enforcing the legislation. Is it because, for some unknown reason, the State does not want to catch these people and does not want the trouble of that? Is it because it believes that if they keep shooting each other, there will be none of them left? This was the attitude in Chicago in the 1930s, but it did not work. The lack of enforcement is an appalling indictment of our system. Worst of all, it is an appalling threat to ordinary law-abiding citizens.

Generally I am aware of the intention of the Minister with regard to issues, but I do not know what the Minister has in mind on this subject. Sometimes I think he is bored by it or other times I think he feels he cannot do anything about the situation. Perhaps that is true. Sometimes I think the Minister feels the Opposition is a pain, and perhaps it is.

I would never think that, particularly of the Deputy.

I have got his focus now and I thank him for that. I am not making personal criticisms, but I remind the Minister that it is on his watch that criminal activity is getting out of hand and a new generation is being trained, a generation that is growing up with contempt for the law and who is becoming more innovative in that regard. It has new ideas and is getting better at avoiding justice. Unless some action is taken soon to give some indication to the organised criminal gangs roaming this land that they cannot continue as they are, the price we will pay will be more serious than anything we have paid so far. One day, as has happened before, we will wake up to some major atrocity, the like of which we have not seen before, and action will be taken then when it will be too late. I do not purport to try to tell the Minister how to do his job, but that is the advice I would give him with regard to criminal activity. I know the Minister is aware of the issues, but I wonder when some action will be taken. I hope that the passage of this legislation will lead to action.

We have had more legislation in this area in the past number of years than ever before in the history of the State. We have had one Bill after the other to combat one crisis after the other. However, nothing has been achieved as a result. The strange thing is that most of the issues that were raised could have been handled without the new legislation because there was already adequate legislation in existence. I will never understand why we cannot see some action taken that will make a serious impact on the situation and restore public confidence in the institutions of the State and the ability of those institutions to deal with whatever happens, particularly with criminal activity as we experience it now. One lesson that must be learned is that all the legislation in the world will not replace enforcement. The enactment means nothing unless it is enforced fully. Unfortunately, much of the legislation passed in this House in recent years is not enforced and nobody has any regard for it. As a result, the whole situation is problematic.

Debate adjourned.