Criminal Procedure Bill 2009 [Seanad]: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

The Minister has not been shy or lazy in his legislative programme. One could not say we are in short supply of legislation. The constituents and citizens of Louth can be happy with their man who has created something of a whirlwind when it comes to legislation.

Having said that, one must benchmark a canon of legislation against activities on the ground. How effective is the implementation? How are things operating on the ground? We must consider how the Garda will work with all this new legislation. Have all senior experienced posts been filled following the exodus of senior management last year? Are the Garda and the Director of Public Prosecutions properly equipped to get cases to court and to enforce the legislation? The Government can introduce legislation but if there are impediments in regard to resourcing, perhaps we would be better off coming down a gear or two.

Having said that, there are some points I wish to raise in regard to the Criminal Procedure Bill and victims of crime. The Victims' Charter and Guide to the Criminal Justice System 1999 committed to giving victims of crime a central place in the criminal justice system but here we are 11 years later with the Minister's legislative proposal to establish these principles. In 2008 the Minister, in response to Deputy Alan Shatter's Private Members' motion on the subject of victims' rights, spoke about a new ground-breaking Bill to be drafted and presented to the Oireachtas by spring of 2009. We now have that Bill, except that in the interim it has become in the Minister's words, "A Bill that undoubtedly breaks new ground but it does so in a way which is measured and which respects long-established and cherished legal principles". "Breaks new ground" is, as the Minister says, quite a measured phrase. "Ground-breaking" as a phrase sounds much more dynamic and forthright. There is a touch of the "Yes Prime Minister" in the Minister's use of words. One must ask the question, what happened along the way?

The Minister has not gone far enough with this legislation in regard to the treatment of victims before and after a relevant trial. He said, and I acknowledge it, that this legislation places victims of crime on a new and stronger footing within the trial process. There is a new emphasis on the importance of the victim impact statement and this is welcome.

However, the Minister has missed an opportunity to place the dignity of the victim at the centre of events during the important junctures in the criminal justice system. What happens before trial in preparation for a forthcoming ordeal and after trial when issues concerning either acquittal, sentencing or parole of the accused or convicted plays such a significant role in how the victim subsequently deals with the matter.

Crime victims will not look on this legislation as something that eases their burden or vindicates their rights. The aspects of this legislation that apply to their plight will do little to convince them that the balance in the system has tipped back in their favour. I would have preferred if the Minister had used this legislative opportunity to present a more robust enhancement of victims' rights.

There are many instances where the victim has had to deal with the impact of the crime committed against them. I recall one case from my own constituency where a criminal trial concluded in Dublin with a suspended sentence for the convicted person, subject to clear restrictions whereby the convicted person was not to go near the victim. Both parties shared the train home from Dublin and on arrival at Limerick station, the convicted person proceeded to flick a cigarette butt at the victim.

The incredible nature of the event was that it occurred on the way home from the court. Due to the fact the victim still had the fortitude to report the breach of condition, the convicted person ultimately received a custodial sentence. One must ask the question, how many victims would have had the strength to follow through on a day such as this?

This type of incident illustrates my point that the victim is not afforded proper recognition and protection in Ireland. In many cases, the perpetrator of the crime believes that he or she can continue in a manner such as this because he or she has little or no respect for decisions of the court.

That we still abide by age-old and well established principles within the court does not mean we cannot offer more robust supports to victims both inside and outside of the court. One could not, in any way, describe this legislation as centred on the victim. The Minister has not moved the pendulum of the criminal justice system much back towards the victim with this legislation. The changes proposed, although welcome, are modest in nature.

The manner in which this legislation deals with retrial is one of potential difficulty. The integrity of any retrial which is, in essence, a new trial must be protected. One would expect that from the list of potential crimes which this legislation covers, that great care should be taken to avoid publicity in advance of a new trial — publicity that might influence potential jurors.

The very nature of a retrial of more high profile cases may place the Director of Public Prosecutions in the invidious position of finding it difficult to prepare a case which is not, in some way, influenced by the previous case. There is a precedent for this as per the comments of the Minister for Health and Children on the former Taoiseach, Mr. Charles Haughey, in that the higher the profile of the original trial, the more difficult it is to create correct circumstances for a new trial. I hope the Minister will tease out this issue on Committee Stage.

The Minister was specific on the issue of retrospective application and was at pains to explain his position on the matter. He appears to be acutely conscious of the separation of powers between the Oireachtas and courts. I fail to see how the general presumption in criminal law against retrospection would be undermined were this legislation to be applied in a retrospective manner.

The Minister made much of the fact 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. This is not the issue at stake. Surely the point is that a retrial takes place on the basis that the original trial was tainted and the original trial is only tainted by the fact that a recognised offence has taken place.

The instruments to be used with regard to retrials once the legislation has been enacted do not undermine the separation of powers. This objective set out in the Bill has been achieved in other jurisdictions which practise common law. I remain unconvinced by the Minister's argument in this respect and ask that the issue be more comprehensively addressed on Committee Stage.

While I welcome the provisions of the Bill, I am disappointed the Minister did not go further to address how the State treats victims of crime outside of the courts. The legislation is a missed opportunity.

The Criminal Procedure Bill 2009 does two things. It expands the categories and offences in which a victim impact statement can be made and changes the rules pertaining to double jeopardy, namely, the rule that a person may not be tried for the same offence twice. As a result of the proposed change, a person may be tried again when new and compelling evidence emerges or where an acquittal has been achieved through an offence against the administration of justice. An offence against the administration of justice could be corruption, witness intimidation or jury tampering.

I welcome the provision to expand the circumstances in which a victim can make a statement and the categories of persons who can make such a statement. It is important that the legislation provides that families of victims will have a statutory right to give a victim impact statement. Essentially, we have looked across the water at changes in England and Wales and, more important, decided to implement change here along the lines recommended by the balance in the criminal law review group. This is a positive development.

The legislation also introduces sensible safeguards for children and guardians to give evidence by video link. In addition, it provides that an inference cannot be drawn where a victim does not wish to give a victim impact statement.

I raise a minor but significant point regarding the definition of a family member for the purpose of a victim impact statement. It is proposed that the family member definition include "spouse" and that family member means a spouse or partner of the person, a child, grandchild, parent, grandparent, brother, sister, uncle, aunt, nephew or niece of the person, a person who is actingin loco parentis to the person, a dependant of the person or any other person whom the court considers to have had a close connection with the person. The definition does not include the status of civil partner as a defined family member. While the court has discretion to allow a victim impact statement from a person who has a close connection, given that the Civil Partnership Bill is moving through the House, will the Minister consider tabling an amendment to specifically define a civil partner as having a statutory right to make a victim impact statement? I will be in the hands of the Minister or Parliamentary Counsel on this issue. Given that Committee Stage of the Civil Partnership Bill is expected to be taken later this month, we should, however, make provision in anticipation of the Bill’s enactment later in the year for a victim impact statement to be made by a civil partner.

The double jeopardy rule is a long held common law feature that seeks to provide certainty in law that those acquitted of a crime do not fear further prosecution. It also draws a line under the relevant offence. When altering this rule it is important, therefore, that certain safeguards inherent in the Constitution, European Convention on Human Rights and international human rights instruments are protected. I note, for example, that under Article 14.7 of the International Covenant on Civil and Political Rights relating to the right to a fair trial, retrials for the same criminal offence should not take place. The article states: "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country." This requirement must be balanced with the capacity of the Director of Public Prosecutions, in a case where new and compelling evidence has come to light following a criminal acquittal, to retry a case in the interests of the common good.

Striking a balance between the rights of the individual and the common good is an increasing tension in our criminal corpus. Under the legislation, the retrial procedure may be enacted where new and compelling evidence emerges. The term "new and compelling evidence" is defined in section 7 as evidence which was not adduced in the proceedings in respect of which the person was acquitted and which could not, with the exercise of due diligence, have been adduced during those proceedings. It is evidence which is reliable, substantial and implicates the person concerned with a high degree of probability in the commission of the relevant offence. The Director of Public Prosecutions is enabled to apply for the Court of Criminal Appeal to determine when these criteria are met.

The question is whether the four part test which must be satisfied is sufficiently robust to safeguard against the rights of an individual being trampled and balanced against the need for a retrial to serve justice. Within this test there is sufficient scope to determine the answer to this question. I note that experience in other jurisdictions suggests this procedure is rarely used. We need only look across to England and Wales to see that the use of the procedure is the exception rather the rule. I hope the infrequency of its use elsewhere coupled with the four part test will ensure it is also used here infrequently.

At this point, I am satisfied that care will be taken in determining whether to apply the measure provided for in the Bill. I am pleased the definition of a "victim" for the purposes of a victim impact statement has been expanded and hope the Minister will consider widening the definition of "family member" to include a civil partner. Given that legislation on civil partnerships is on track to be passed by the House in the coming months, any failure to take into account the significant changes the Bill will introduce would create a lacuna.

Gabhaim buíochas leis an Ceann Comhairle as ucht an deis seo a thabhairt dom labhairt ar an mBille ríthábhachtach seo, the Criminal Procedure Bill 2009. The Bill amends the law with regard to victim impact statements and the double jeopardy rule. It addresses peculiar circumstances which have arisen in recent years, in particular, the victim impact statement which, of late, has become an accepted and welcome part of the sentencing process. This allows the victim of a serious crime to have some input into the sentencing of a person convicted of an offence against them. This written or spoken statement by a victim or their representative about the physical and emotional impact of a crime allows them to provide information to a court regarding the effect of a crime on them and their loved ones. That is obviously an aid to the court in administering an appropriate sentence. It also allows a judge to have the full facts of a case, which in the past were not available because the effects and the victim's viewpoint were not reflected in the proceedings. The new change in recent years is a welcome one and, in that regard, the changes contained in the Bill constitute a welcome addition also. The situation properly reflects and respects victims' rights, thus ensuring that their views and the impact of a crime upon them, are properly communicated at the appropriate stage of the criminal justice process.

We must always bear in mind that a victim impact statement does not interfere with the right of the accused to an unbiased trial. The victim impact statement, with appropriate regard for the rights of the accused, can be, and, to date, has been, a valuable part of the experience of the criminal justice process for a victim of crime. Often the first step towards the attainment of justice for a victim of crime is recognition of the wrong done to them and the injustice they have suffered. In that respect, the victim is not removed from the court proceedings, which up to recently featured the State versus the accused, with victims happening to be a side-show.

Being able to address the court and helping them to acknowledge and understand the suffering and long-term effects of a crime, as well as the opportunity to face an accused perpetrator, can be an important part of the rehabilitation of a victim, and of their sense of justice being done. It is also an opportunity for a victim to get across the full enormity of a crime that has been perpetrated against them. That is why, in the past, I have welcomed the introduction of victim impact statements. Unfortunately, however, this Bill does nothing more for victims. The Government has not gone far enough and is rolling out cheap and easy legislation. This Bill is not contentious and does not deal with some of the other aspects that should be addressed. It is being rolled out under the guise of a significant victims' initiative, instead of taking real action to deliver the practical supports that victims of crime require. The Minister did not even properly consult victims' organisations when he put this scheme together. The legislation could have gone further if that had been done.

As regards victim impact evidence, a court is currently only required to take into account the testimony of the direct victim. Likewise, the entitlement to provide a victim impact statement is restricted to the direct victim. There are obvious shortcomings to this approach. In cases where the victim is incapable — due to age, disability or any other reason — of delivering an impact statement, or where the victim has been killed or incapacitated due to the crime that was committed against them, there has been no mechanism to allow some sort of victim impact statement to be made. This means that this part of the legal process is closed off to some victims.

In cases where it is not possible for a victim to make a statement, this Bill allows a member of their family to provide a statement. It also provides that a vulnerable person, such as a young child or a person with a mental disability, can have their impact statement delivered by a family member on their behalf. This is a welcome and positive step towards equality for victims in the judicial system. It would be inappropriate for a victim of crime to be denied the right to contribute fully in the judicial process due to an inability to communicate or any other impediment, particularly if this comes as a direct result of the crime in question. Some victims are too afraid to come into court and give a full account when the accused is sitting there. It is important, therefore, to recognise the need for such a mechanism in these instances. The Bill goes some way towards addressing past shortfalls.

Where any aids are available to convey a victim's sentiments accurately, they should be used. I therefore welcome the relevant sections in this Bill dealing with the provision of assistance to help victims communicate their views fully to the court. In cases where the victim feels vulnerable or for some other reason cannot be present in the court — for example, if somebody is still in hospital — the ability to provide victim impact evidence by video-link without the necessity of being in the courtroom will be valuable in ensuring that the rights, both of the victim and the accused, are satisfactorily upheld. The television link is an effective way to allow a victim, or their representative at the very least, to make a statement in secure and non-intimidating surroundings.

In cases where the victim is deceased, particularly if this is as a result of the offence committed against them, it is the family and loved ones of the victim who suffer the long-term effects of a crime. They are the ones who are left with a sense of loss and injustice, so it is only right that they should be afforded the opportunity to make an impact statement. The lives of the bereaved have been detrimentally affected. Therefore, I welcome the provisions in this Bill that require a court to take into account the effect of an offence on the family members of the deceased. Likewise, in cases where the victim is under 18 or has a mental disorder, the ability of a family member to make a victim statement on their behalf is also a welcome development.

The use of family members to provide evidence throws up some interesting questions as to who is deemed to be entitled to make a statement on behalf of a victim. The Bill defines a "family member" as follows: a spouse or partner of the person; a child, grandchild, parent, grandparent, brother, sister, uncle, aunt, nephew or niece of the person; a person who is acting in place of the parent and has legal responsibilities to the person; a dependant of the person; or any other person whom the court considers to have had a close connection with the person.

The debate on the Civil Partnerships Bill 2009 has given this House an opportunity to discuss the legitimacy of different types of relationship with regard to legal protections and rights. From listening to the debate surrounding that Bill, it is widely accepted among all parties that a consideration of the rights of same-sex and co-habitant couples must be reflected in any legislation regarding family rights. The Bill before us is no different. Many issues were raised with me by concerned constituents who are involved in relationships that were not, are not and will not be recognised under the Civil Partnerships Bill. These included non-sexual co-habitant relationships and those of carers of sick and elderly people.

The Government should provide a more detailed set of guidelines to accompany the Bill before us, outlining fully how these types of relationship will be catered for, and who can be considered by the court to have a close connection with the person, which is the final definition of a "family member". Are the people I have mentioned in various relationships covered by that final definition? If not, we need to amend that section to afford the same rights to people who are in a relationship, but who are not family, as currently constituted in this State. This may be reflected in the Bill, but I would like clarification on the issue.

I take this opportunity to endorse the Irish Council of Civil Liberties recommendation that the legislation be amended to assign clearly responsibility for walking victims or their family through the appropriate impact statement process. This responsibility should be assigned to some part of the justice system, whether the Garda Síochána, someone from the Office of the Director of Public Prosecutions or the Courts Service or the judge's office. This would ensure that families are fully aware of what can or cannot form part of an impact statement, the effect it will have and what exactly it means. Recently, I saw some documents produced by the Courts Service aimed at young children going to court. These documents explain the courts system to them and explain what a person brought before the court can expect. This is welcome.

Recently, I dealt with people who had never had cause to deal with the justice system, either the Garda or a court, who were absolutely fearful of the legal procedure. It is important that we are aware of this when dealing with the legal system, whether victim impact statements or any other aspect of the system. Many people in society fear the system. Therefore, it is vital, particularly for victims who have already suffered, that we walk them through what happens in court. I have been a witness in a number of court cases and have found that procedure is not explained properly to victims or witnesses. They do not understand what is going on around them. Witnesses do not understand they do not have to sit through the whole court case or why they need to sit around for hours on end. This is a job of work that needs to be done. Families and people who will make impact statements in particular must be helped to understand the process fully.

The Bill also empowers the court to restrict the publication of all or part of any impact statement that is made orally. This is vitally important to safeguard against abuse of the victim impact statement facility, which is supposed to be an aid to victims and not meant to be sensationalised by the media. However, that is what has happened on some occasions. Victim impact statements are an aid to the judicial process. The need for this power was evidenced in a speech made by Mr. Justice Paul Carney during an address to the Law Society in which he was somewhat critical of his experience of the process, in particular the way in which it had been exploited by the tabloid press. The Bill should be amended to clarify that the power to restrict publication applies to both impact statements made orally and those made in writing. The restriction should only be imposed in the interest of justice or in the best interest of the victim. It should not be imposed lightly and, therefore, there may be a need to add to the explanation for these restrictions.

I would like to address the proposed changes to the double jeopardy rule. The Bill introduces certain exceptions to the rule where new evidence has come to light or where a person is convicted of an offence against the administration of justice, which offence may have resulted in their original acquittal. The principle of double jeopardy is a valuable principle that has stood the test of time. Everyone is entitled to be protected from repeat trials relating to the same offence. The relentless pursuit, harassment and abuse of innocent people by prosecuting authorities has happened on occasion in this and other jurisdictions. We cannot ignore this and must have a system that protects against it. The shameful case of Frank Shortt in Donegal is evidence of the lengths to which a corrupt Garda can go in a dogged attempt to frame an innocent person. There have been a number of other cases in this and the neighbouring jurisdiction and this should be borne in mind when we start to tamper with the double jeopardy rule.

The double jeopardy rule also incentivises investigating and prosecuting authorities to do their job properly the first time round. It incentivises prosecuting authorities to investigate a crime thoroughly instead of rushing to court with a case which is not fully thought out because of the possibility of catching the criminal later if the case is lost. The offences for which retrial after acquittal is available should be very limited and should only include serious cases such as murder and other offences involving serious violence, including rape. The "new evidence" required to trigger a retrial post acquittal should be limited to the result of forensic tests — new tests — that were unavailable at the time of the initial trial. We now have such tests, such as new DNA tests for evidence that were not available ten or 20 years ago. We should also allow "new witness" evidence that was not available for some reason. For example, a witness could end up in a coma for some years. If the witness than came out of that coma, he or she could provide new evidence, or perhaps somebody who had left the jurisdiction returned or became available to provide evidence. In such cases we could consider whether the evidence that could be provided was substantially different from the original evidence.

As with so many justice legislation proposals emanating from the Government, I am not sure a persuasive case has been made for the necessity of the double jeopardy change or the extent of it or the need to change a system that has worked well. I do not oppose the change, but I would like to tease the issue out further on Committee Stage. In how many cases has new and compelling evidence come to light that would result in conviction? Can the Minister bring forward substantial evidence for the necessity of this change?

Overall, I welcome the Bill. However, we need to be careful with regard to any proposal that undermines the principle of trial by jury. The Bill must be seen in the context of the Criminal Justice (Amendment) Act 2009 which came before it and which purported to deal with gangland crime. Both pieces of legislation can or have eroded the right to trial by jury by removing juries from the outset in certain circumstances and by allowing a judge only court to overrule a jury decision, and possibly order a retrial without a jury. This is permissible under the new 2009 Act. Jury trial is a cornerstone of any democratic criminal justice system and Sinn Féin is opposed to any dilution of this right. I will return to this issue on Committee Stage.

I welcome the Bill, in particular the changes with regard to widening the facility for victim impact statements and the safeguards attached. I urge the Government to use the legislation as an opportunity to introduce a statutory requirement for all criminal justice organisations that interact with victims to reflect the internationally recognised set of victims' rights within their codes of practice, to legislate to ensure appropriate information for victims at various stages of the criminal justice procedure and to ensure availability of a comprehensive spectrum of health and social services and other relevant assistance for victims.

This Bill and its provisions are, in large part, welcome. However, it must be highlighted that in 2008 Deputies Shatter and Flanagan published their Victims' Rights Bill to give victims of crime comprehensive statutory rights under Irish law; unfortunately, it did not receive the support of Government at that time. The current Bill is a useful first step in providing recognition for victims but it does not fully reflect the comprehensive nature of Fine Gael's proposals, which is disappointing.

I welcome in particular the proposed changes to the law on victim impact statements and the extension of the category of persons entitled to deliver same. As stated by Ms Justice Macken, such statements can be of assistance to the sentencing judge in determining the appropriate sentence to be imposed and it affords the family or friends of the deceased victim an opportunity to express their loss. However, we must be careful about tilting the scales of justice too far in favour of the victim. It is well established in Irish constitutional law that in the event of a conflict between the public right to have crimes effectively prosecuted and the accused's right to trial in due process, the latter must always take precedent. The same must also apply in any conflict between the rights of the accused and the rights or interests of victims.

Care must be taken to ensure that the section is applied for its proper purpose. The victim impact statement it is not intended as an opportunity for adducing further evidence or suggesting that the accused is guilty of a more serious offence than that of which he or she has been convicted. This point was made clearly by the Court of Criminal Appeal in Director of Public Prosecutionsv. O’Donoghue, a case in which we all took a great interest and from which we learned a lot. In this case the judge stated that when a family member is giving a victim impact statement, a copy of the statement must be provided to the sentencing judge and the legal representative of the accused. The court stated that this should be done before the reading so it can be checked for anything untoward. The judge further highlighted that the person making the statement should be warned by the sentencing judge that if in the course of making the statement he or she departs in any material way from the content as submitted, he or she may be liable to be found in contempt of court.

I recommend that these guidelines presented in the O'Donoghue case be enacted in this legislation. It is important that people are aware that the purpose of the victim impact statement is not to place unfounded or unproven allegations in the public domain. As stated by the Irish Council for Civil Liberties, the protection of victims' rights does not and should not require a corresponding diminution of the rights of the accused.

I welcome section 5 of the Bill, which allows children, persons with a metal disorder or any other person with the leave of the court to give victim impact statements by means of a live television link. I also welcome the provision in section 5A(1)(B) that neither the judge nor counsel is to wear a wig or gown when a child or person with a mental disorder is giving his or her victim impact statement by video link. This was a recommendation of the Children's Rights Alliance and it allows for a more child-friendly environment. It is important that we listen to the views of the Children's Rights Alliance, because it knows best. Sometimes the justice system, and certainly the courts system, can be off-putting to people who are not confident and are perhaps not of an age to be able to understand all the proceedings.

The court may direct that where the victim impact statement is to be given by a child or person with a mental disorder via a live television link, any question to be put to the victim be put through an intermediary. This will be less traumatic for the child and is thus to be welcomed. The recommendations of the second report of the Joint Committee on the Constitutional Amendment on Children proposed that all lawyers involved in the prosecution or defence of cases of child sexual abuse or sexual offences against children and all judges hearing such cases should be required to undergo a specialist program of training to enable them to perform their functions in a manner that is least traumatic for child complainants and witnesses. It further recommends the development of a child witness support service.

We should listen to that committee, which has done much work. There is no point in not considering its views. If the Government is to fully protect and vindicate the rights of children in Ireland, such proposals need to be implemented. A referendum needs to be called as a matter of priority to allow for the rewording of Article 42 of the Constitution to allow our children to be treated as individual citizens with stand-alone rights. The rights of children in Ireland must be given paramount importance. I call on the Cabinet to support the calling of a referendum as matter of urgency.

The Government further needs to examine whether appropriate changes to the Constitution need to be made to allow for the collection and exchange by relevant authorities of soft information with regard to employees and volunteers whose work entails substantial unsupervised access to children and vulnerable adults. There have been numerous calls for the expansion of our vetting system to include soft information in order to create a comprehensive system. Indeed, the Children's Rights Alliance supports the introduction of a comprehensive child protection system that incorporates the use of soft information within its vetting process.

We as a nation have failed our children in the past. This Bill will help to alleviate some of the pain a child endures during a court hearing. This is welcomed, but we need to decrease the number of children who become victims in the first place. Instead of concentrating on drafting measures to ensure the courtroom process is child-friendly, we need to concentrate on measures to ensure the number of child victims is minimised.

In my time on the Joint Committee on Education and Science a number of years ago, we discussed the issue of soft information and it was generally felt this was something we should consider. It is a delicate matter and may be seen as encroaching on people's rights, but there is justification in many cases for the passing of information among the authorities and the various officials in the community. We encouraged the various groups and stakeholders to meet on a regular basis; that would be an ideal opportunity for soft information to pass from hand to hand.

A person came to me recently with informal information about an act committed by another person who is now working with young people. There have been no legal proceedings on the basis of the alleged act because it was supposed to have taken place 19 or 20 years ago. This person is in a difficult position and does not know how to get that information into the right hands. The person cannot instigate a criminal investigation because the act was not perpetrated on him or her. Thus, there is no place to go with the information. Yet the person in question can continue working with children. There are many more cases such as this. The Garda does an excellent job in keeping an eye on certain people about whom it has suspicions, even without having received direct information. It does a good job in terms of profiling and keeping an eye on things. This is workable and useful in small towns and villages but it is quite difficult in large cities.

Part 3 of the Bill sets limitations on the rules on double jeopardy. The proposals in the Bill mirror quite closely the laws enacted in the UK. In that jurisdiction, a law allowing for retrial where there has been a conviction for interference with the administration of justice in the relevant case was enacted in 1996. In 2003, the UK enacted the Criminal Justice Act, which allows for retrial where new and compelling evidence comes to light. Hence we are, as usual, falling behind, although I acknowledge the Minister's efforts to introduce legislation with reasonable urgency.

I am hopeful that these measures will allow for the arrest of more gangland criminals. Every other week we hear of shootings taking place on the streets and in our neighbourhoods. We have been losing the fight against such crimes for some considerable time. Why are we only now debating the introduction of such amendments to our laws? Is it because we have a relatively new Minister with clear aims and intentions in this area? We have had other Ministers — particularly former Deputy Michael McDowell — who promised to deal with crime. Mr. McDowell said that gangland crime was "the sting of a dying wasp". He had all the answers. Yet, with many of the Bills he brought through the House, he would not listen to any ideas or proposed changes. He drove many Bills through the House which, he claimed, would solve the problem. That former Minister has a long record of legislation to his name but not a long record of results.

I hope this Minister will not fall into the same trap. I listened to him recently giving a run-down of all the work he has been doing, but he will be judged on the results on the streets. Gangland crime is something we really need to tackle and this Bill is a step in the right direction. People are afraid out there. We are all afraid that the gangland crimes familiar in certain areas will spread to more towns and villages, because we have suspicions that many of the members of criminal gangs are moving to new towns. We have a duty to try to nip this in the bud.

Not a week goes by when we do not hear about some kind of shooting. Apart from enacting new laws, in order to tackle gangland crime, we must match the resources of the criminals. Some of these people make more money in a weekend from drugs than we spend in a whole year tackling the drugs problem. There is a serious gap between their spending power and our spending power. They end up with the best technology and equipment and the best cars in town. Our gardaí will always be trailing behind in terms of equipment due to difficulties with resources. I accept that, but we must strive to give the Garda what it needs to take on these gangs. It is not just new legislation as there should be new equipment and more resources put in place. I accept that money has been put into certain areas in this country but that is not enough. Serious amounts of money are being made through gangland criminal activity and we will be way behind unless we can try to match it somehow with resources.

The prohibition encapsulated within the double jeopardy principle has a strong history going back in some accounts to biblical and classical years. St. Jerome, writing towards the end of the fourth century AD, is usually credited with the statement that "even God himself does not punish twice" for the same offence. In more recent times a number of justifications have routinely been offered for the prohibition of repeated prosecutions.

These justifications include the fact that a retrial may result in a further financial burden. Whereas the burden of legal costs is eliminated where legal aid is available, an acquitted person may suffer other financial burdens such as the disruption of normal employment or business. A retrial will inevitably involve delay in the final determination of the charge. It might be anticipated that delays could have a severe psychological impact on many acquitted persons, particularly if there is a possibility of the acquittal being quashed and a retrial ordered. Furthermore, the State with all its resources should not be permitted to pursue a person with criminal charges indefinitely, as this may lead to an innocent person being convicted.

We must tread carefully. I understand that the purpose is to nail certain people and gain good evidence. In the process, innocent people could be unlucky enough to face a retrial and we have a duty to leave as little disruption to people's lives as possible. We have to assume people are innocent until proven guilty.

We have a responsibility to offset some of the justifications for a strict application of the double jeopardy rule. To counteract these justifications, it is prudent that the State should consider free legal aid in all retrials under Part 3 of this Bill, irrespective of the financial resources of the defendant. I would like to hear the Minister's opinion on this and I am not saying that I am right, although there might be a case for considering the matter.

Delay in such retrials should be kept to a minimum; this will reduce the negative psychological impact on the defendant. It is also submitted that the defendant should have the option of acquiring the services of a psychologist at the expense of the State during the interim of being told that he or she will be retried and the retrial itself.

This is important for several reasons for a person who thought he or she was free but who will have to face trial again. It is important we ensure the system is efficient. By imposing restrictions, the process might be achieved more quickly and the issue could be dealt with quickly. We all know that it is more beneficial to punish crime quickly rather than leave the process drag on. If a person is young, in particular, an extended period between the crime and punishment can be detrimental or reduce the effect. The more quickly justice is applied, the better, and if retrials result in massive delays, they should take priority where possible.

Although protection against double jeopardy is clearly identifiable in Irish case law, certain limitations already exist. For example, in Considinev. Shannon Regional Fisheries Board the Supreme Court refused to invalidate a statutory provision which permitted an appeal to the Circuit Court against an acquittal on the merits or otherwise of the District Court. The court seemed clearly of the view that whereas protection against double jeopardy was well established in Irish law, statutory exceptions were permissible provided they were expressed in clear terms. It can be argued that prosecution appeals against lenient sentences could also be regarded as double jeopardy.

As stated, the changes in law introduced by Part 3 are welcomed but one must be careful that the changes in law relating to double jeopardy are not used as measures to negate our responsibility to have a fully fledged and equipped Garda service. Due to budget cuts and reform in 2009, as well as fears that the tax system would change, many experienced gardaí retired, taking knowledge and expertise that cannot be replaced overnight. At this point how close are we to having 15,000 gardaí, as was promised under the programme for Government? An accused person's right to trial in due process cannot be undermined due the Government's failure to provide sufficient resources and funding.

I have a problem with the number of gardaí doing what I would regard as civilian duties. There have been numerous commitments and promises made over the years to try to put as many people on the beat carrying out real Garda work, as long as they could be replaced by civilians doing some of the paperwork. It is important that such work gets done but do we really need fully trained gardaí doing it?

We have failed in this respect and the problem must be addressed, particularly as there are so many people who are unemployed and looking for work. We should find some way to slot people into the system who might not be trained gardaí but who may take on some of the more mundane duties. This would free Garda time and resources so real problems can be tackled.

The Minister might be able to inform me in his reply or at a later date on how we are progressing in bringing people into the Garda force who may not have gone through the system of being trained as a garda. People may have a degree in criminology, for example, or be an expert in forensics. It still seems difficult, if not impossible for those people to be employed without becoming a garda first. We discussed a Bill in the past which made allowances for this to change, and it would have allowed people with expertise to be given a job. Is that happening?

People have come to see me with different qualifications who would like to be part of the Garda force but could not afford to train as a garda. Others felt they should not have to start at the bottom of the ladder when their qualifications could be of great use in activities such as collecting or analysing evidence. There is much talent in the country that could be used by the Garda if the system changed. I stand to be corrected on this as there does not seem to be much progress in the area. It may not be appropriate to this Bill but the Minister could give a statement on it at some stage.

Part 3 allows for reactive measures to be taken on witness intimidation. This is welcome but it is not sufficient. In 2007, Fine Gael proposed the establishment of a special witness protection unit, a witness protection hotline and draft guidelines for the Garda Síochána on how to use the programme. I also note that the Labour Party called for the scheme to be put on a statutory footing but the Government has paid no heed to our calls.

This is very disappointing, especially when one considers the criticisms of our present witness protection scheme. Mr. Justice McCracken has stated:

Undoubtedly the witness protection programme was badly thought out and almost developed a life of its own. One of the most worrying features is that there never seems to have actually been a programme. Instead the system remained "fluid" with no clear guidelines with witnesses increasing their demands under the programme when their time to give evidence arrived.

I listened recently to a programme I would not normally listen to. On it a person was discussing life as a protected witness, or rather the lack of life. I accept Ireland is a very small country and it is hard to tackle the issue but the person has 24-hour Garda protection and cover. It is a serious invasion of privacy and intrusion into one's life. As we have seen in the past, the programme does not always guarantee safety. The Bill attempts to address the issue but a proper witness protection is required.

One could argue that there is an absence of comprehensive data on both the extent or circumstances of witness intimidation in Ireland but according to Mr. Michael Murray, the Limerick State prosecutor, one in ten criminal cases cannot be successfully prosecuted in Limerick due to intimidation. This is significant, especially when anecdotal evidence shows that the proportion is probably greater.

Studies in Britain by the Home Office have considered levels of witness intimidation and according to the analysis in the 1998 British crime survey, the level is much higher than Mr. Murray's indication. If we are to accept the relevance of the analysis of the 1998 British crime survey to this jurisdiction, then we are accepting that up to one in four crimes is not reported due to intimidation and that almost one in ten reported result in overt intimidation.

Action needs to be taken to counteract acts of interference with the administration of justice. Again, this Bill allows for reactive actions to be taken to findings of interference but we need to be proactive and reliance on the provisions in this Bill relating to double jeopardy need to be minimal. The introduction of a statutory witness protection scheme is in line with the recommendations of the US Justice Department, which has stated that a formal structure is important in order to achieve the benefits of inter-agency co-operation and efficient use of resources.

The National Institute of Justice provides five reasons for a highly structured and formal approach to witness protection but I will not go into them now because my time is nearly up. I accept we live in a very small country and it is hard to operate a proper witness protection scheme but we must try to make some serious advances on the issue.

I thank the Deputies who have spoken on this debate and thank them for their overall support of the Bill. Deputies Flanagan, Rabbitte, Ó Snodaigh, Cuffe and others all gave it a broad welcome. The broad agreement is indicative of the general recognition of the need to address the concerns of victims of crime and to assist them in dealing with their experiences. There was a difference between Deputy Flanagan and myself on how to achieve those ends. Fine Gael promoted a Bill which took on board the practice of other jurisdictions, but I feel it is far better to deal with this on a non-statutory basis.

I have established a victims of crime office in my Department and, along with the commission for the support of victims of crime, it is providing the support groups with substantial assistance, financial and otherwise. I do not accept Deputy Ó Snodaigh's comment that I did not liaise with victims' groups. I spent a day with a victims' group in the Croke Park Hotel before I brought forward these proposals. They expressed great satisfaction with the way in which I and my officials dealt with the situation and they subsequently gave a broad welcome to the provisions of this Bill and the setting up of the victims of crime office. This is a dedicated office with civil servants who assist victims and victims' groups.

The Bill gives strong expression to the victim's rights to contribute at the sentencing stage in a trial. It is a matter of considerable satisfaction that we are recognising that persons other than the direct victim are hurt and damaged by crime. The Bill makes generous provision for the rights of the wider family to participate in the victim impact process.

One of the Bill's other main achievements is to ensure those whose acquittals are undeserved cannot expect to enjoy immunity from further prosecution. Deputy Ó Snodaigh is right that we need to be careful. Any change to an existing acquittal will only be based on court authorisation. Making retrials possible will boost confidence and respect for our legal processes, and that must be welcomed. It is only the latest of a number of initiatives in recent years that ensures our laws and procedures are adapted to enable the prosecution authorities deal with current circumstances. The Criminal Justice (Surveillance) Act 2009 is another example where the thought processes have been changed on how to deal with surveillance.

The re-trial possibilities presented by this Bill will be of particular interest and consolation to victims and their families. There can be no greater scandal for a victim than to see his or her assailant enjoying the fruits of an undeserved acquittal. This Bill offers a real possibility of addressing this unacceptable situation.

Deputy Flanagan and his colleagues argue that the EU framework decision can have effect only if enshrined in legislation. This is at variance with the facts. Much of the support for victims is delivered through voluntary effort. Over the years, many of the support groups have developed remarkable expertise in their particular area of interest. This expertise and the outstanding commitment of the personnel involved ensures a service that is responsive to victims, that can be accessed by them quickly and in the knowledge that they will be treated sympathetically. My role is to support and encourage those dedicated people who run the support groups. I am pleased to say that my Department's funding has been substantial in recent years, with over €6 million granted between 2005 and 2010, rising from €685,000 in 2005 to over €1.25 million in 2009. That level is likely to be maintained this year.

We have an effective victim support system. It would be unwise to impose a statutory framework when there is no evidence to suggest that such a framework would improve on current arrangements. Therefore, I will continue to address victim's concerns through a combination of legislative changes, as well as support for voluntary effort.

The victims' charter is central to the support systems for victims. I can tell the House that work on a revised charter is progressing very well. The charter is much more than just a list of services provided to victims of crime by a wide range of criminal justice agencies, even though that of itself is very helpful to victims. Its real importance lies in the fact that it represents firm, public commitments to put the care and support for victims at the centre of the services those agencies provide. I hope to be in a position to publish the new charter in the not too distant future.

Deputy Rabbitte mentioned the recent document by the Irish Council for Civil Liberties that deals with the Bill. I have examined the document and I am pleased to note council's general welcome for the proposals on victim impact evidence. However, I was disappointed to see the comment that there should have been more consultation with the victim support groups. Clearly, the ICCL is unaware of the extensive consultation process undertaken during late 2006 and early 2007 by the Balance in the Criminal Law Review Group, whose report and recommendations provide a basis for many of the Bill's proposals. Neither is the ICCL aware that I organised and hosted a day-long meeting with support groups from all over the country in September 2008. The groups welcomed the fact that the consultation took place and most of them were complimentary about the way in which we addressed the situation, both from an administrative point of view and a legislative point of view. The consultations continued during 2009. The commission for the support of victims of crime organised two meetings of the consultative forum. I attended these meetings and the developments relating to the Bill were outlined and discussed. There has been extensive and structured consultation and I cannot therefore accept what the ICCL claims on that point.

The ICCL states that the case has not been made for a change to re-trial proposals. Its members obviously have not read the review group report. The group set out the case clearly. Does the ICCL think we should wait until a case arises where the procedure could be employed, only to find we are unable to do so because we failed to provide a legal basis in good time? Delay, as advocated by the ICCL, would only deny victims the benefit of the changes I am now proposing.

The ICCL suggests the solution to undeserved acquittals lies in revamping the witness support arrangements, but it is missing the point. To suggest that new evidence will arise only when a previously intimidated witness comes forward is not in line with the facts. New evidence is more likely to result from confessions or from new forensic evidence. Even in the case of tainted acquittals, the perjury or whatever the taint happens to be can easily be the result of a misguided witness hoping to assist the defendant, not as a result of intimidation. I had hoped for a well argued, soundly based commentary from the ICCL. However, I am afraid the analysis offered in this document has added little to the debate.

Deputy English raised the issue of Garda numbers. By the end of 2009, Garda numbers reached 14,550, with 232 students in training. The Deputy also spoke about the witness protection programme. Putting this on a statutory basis would not give the Garda Síochána the flexibility that is required, and this is a view that has been expressed many times by Garda management. The Garda management also make the point that because we have a closely knit community in Ireland, there is a severe reluctance on the part of people who have been the victims of serious crime and who have been involved in serious cases to go into the witness protection system. I have tried to encourage a number of people involved in such cases to go into the system, but they have shown a great reluctance to do so, even though they are in severe danger. They do not want to give up family, friends and locality. They do not want to start a new life in another country.

The desire to opt out of participating in this way does not appear to be the case in many other countries, particularly in the US. This is probably due to two factors, namely, that the populations in these countries are much larger and that communities there are much less tightly knit than is the case in Ireland. The operation of the witness protection programme is supported by complementary legislative provision. For example, section 40 of the Criminal Justice Act 1999 makes it an offence for any person, without lawful authority, to try to identify the whereabouts or new identity of a witness who may be relocated under the programme.

A number of Deputies referred to the definitions of "family member" and "civil partner" in respect of victim impact statements. As the House is aware, it is hoped that Committee Stage of the Civil Partnership Bill will be taken at the end of this month. I intend to amend that legislation in order to provide specific reference to the ability of a civil partner to make a victim impact statement. The position is already catered for in this Bill. The new section 5(6) to be inserted into the 1993 Act states that a family member is:

(a) a spouse or partner of the person,

(b) a child, grandchild, parent, grandparent, brother, sister, uncle, aunt, nephew or niece of the person,

(c) a person who is acting in loco parentis to the person,

(d) a dependant of the person, or

(e) any other person whom the court considers to have had a close connection with the person;

When the Bill is passed, it will be possible for the court to determine that a civil partner is capable of being included under this section. As already stated, however, the position will be made more explicit when the Civil Partnership Bill is passed.

I thank Members for the general compliments they uttered in respect of the Bill. What we are doing represents a significant step and it is not one that is taken lightly in any criminal justice system. The Bill will facilitate the reopening of trials. As already stated, when I entered office one of the reports I read from cover to cover was that of the balance in the criminal law review group. I thank the members of that review group, particularly its chairperson, Mr. Gerard Hogan S.C., for their report, which provided us with a good grounding to make, like other jurisdictions, progress in this area. I expect that, in the context of retrials, the legislation will be used sparingly and only with judicial authorisation.

There are circumstances where a person acquitted of murder can walk outside the court and confess to the crime. Under existing legislation, he or she could not be prosecuted. That is both grossly unfair and wrong. The new Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010, the Second Stage debate on which is due to commence in a few moments, will dramatically alter the landscape as it relates to investigations. Given that we are learning from experience and taking on best international practice in respect of DNA and forensics, the criminal justice system should have the wherewithal — if new DNA evidence comes to light and where an acquittal was undeserved — in limited circumstances to change an acquittal in fairness to everyone concerned. I again thank Members for their compliments in respect of the Bill.

Question put and agreed to.

I understand it is proposed to refer the Bill to the Select Committee on Justice, Equality, Defence and Women's Rights. Does the Minister wish to move the motion of referral now?