Criminal Justice (Victims of Crime) Bill 2016: Second Stage

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

The Criminal Justice (Victims of Crime) Bill 2016 is groundbreaking legislation which I am pleased to introduce to the House today. It forms part of a series of legislative reforms I am advancing to improve victims' rights and their experience of the criminal justice system. Victims should be at the heart of the criminal justice system. This Bill, the Domestic Violence Bill, which complements it, and the Mediation Bill, which will be taken in the Houses this week, are all programme for Government commitments.

The three Bills introduce major and wide-ranging reforms that will widen access to justice in this country and ensure the justice system is on the side of the victim and the vulnerable. My Department has published 12 Bills since the Government was formed in May. Exactly one year on from last February's election, it is important to reflect on the legislative agenda we have progressed as a House, despite the new challenges of the Thirty-second Dáil.

I have said in this House previously that the needs of victims of crime have very often been overshadowed by a focus on apprehending and prosecuting perpetrators. We must ensure our response to criminal behaviour is a comprehensive one while putting the needs of victims at the forefront.

It is time the rights of victims were given full recognition in the criminal justice system. The Bill will introduce for the first time statutory rights for victims of crime, marking a fundamental change in the approach to criminal law in Ireland. The main purpose of the Bill is to give effect to provisions of Directive 2012/29/EU of the European Parliament and the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime. Under the Bill, a victim of a crime will have the right to receive information in clear and concise language on the criminal justice system and the range of services and entitlements available to victims, the progress of the investigation and court proceedings and the release, including temporary release, or escape from custody of an offender who is serving a sentence of imprisonment. Deputies will often have been approached by people who are dissatisfied about the fact that they have not been told how various investigations or court proceedings are developing. Victims will also have the right to an individual assessment to establish measures that may be necessary to protect them from secondary or repeat victimisation, intimidation or retaliation, something about which we hear all too often, and the right to request a review of a decision by the authorities not to initiate a prosecution in their case.

Before outlining the content of the Bill in more detail, I would like to provide some context for the legislation. Victims of crime do not always have a formal role in the criminal justice process in Ireland. They are not generally legally represented and, if they are not also witnesses, may have little access to information and little contact with the agencies tasked with bringing the offender to justice. The criminal justice system is a complex system of law and procedure which can be confusing and difficult to navigate, even for those familiar with its workings. This can be doubly challenging for the victim of a crime who may be vulnerable and traumatised by the crime and isolated and unguided as he or she attempts to engage with criminal justice agencies and systems. The central aim of the Bill is to go some way towards addressing this deficit by providing victims with information, support and assistance across all of their interactions with criminal justice agencies. The vital work being done by the wide range of non-governmental organisations in continuing to provide supports for victims of crime is something I warmly acknowledge. All Deputies will be very aware of the work that is happening in providing support, giving people emotional support, accompanying people to court and counselling and referral to other services. A huge amount of really important work is being done by the non-governmental organisations working in the area of victim support. I was very pleased to be able to secure a 17% increase in this year's budget for these organisations. A total of 58 organisations are in touch with the victims of crime office working across the country and providing the support I have outlined. I have also engaged closely with victims' groups in developing the Bill. I thank them for meeting me on quite a number of occasions to discuss the development of the Bill. On the State side, a victims' services group chaired by my Department has been in place since July 2015. It co-ordinates the work of the criminal justice agencies in preparing for and progressing towards full implementation of the directive. Quite a lot of work has been carried out by the various criminal justice agencies. Representatives of the courts, the Probation Service, the Irish Prison Service and An Garda Síochána have all been involved in this group working to ensure the directive and legislation will be implemented.

The Bill contains 30 sections and largely reflects the EU directive on victims of crime. Part 1 of the Bill is standard. It defines "victim" as any person "who has suffered harm, including physical, mental or emotional harm or economic loss, which was directly caused by an offence". This is a broad and inclusive definition which reflects the victim-centred nature of the Bill and the EU directive. The victim is defined not in respect of the offence or the offender but rather by the effect which the crime has had on him or her. The victim benefits from the rights provided under the Bill, regardless of whether a formal complaint is made or a suspect has been identified.

Section 2 defines certain terms used in the Bill. Where a victim has died as a result of an offence, section 2 provides that the victim's family members may avail of the rights provided in the Bill. Section 3 allows the competent authorities to work with family members also.

Section 4 provides that the rights in the Bill shall not apply to criminal proceedings instituted before the commencement of the provisions concerned. This will ensure criminal proceedings already under way are not affected.

Part 2 of the Bill concerns the victim's right to information on his or her case. I have already said a fair bit about this provision. Section 6 sets out a wide range of information which victims must receive when they first make contact with An Garda Síochána or, in certain cases, the Garda Síochána Ombudsman Commission. Victims will be entitled to receive detailed information on the criminal justice process and the role of a victim within that process. This will include information on the procedure for making a complaint, where to direct inquiries and the circumstances in which they may be able to obtain protection measures or assistance by way of interpretation, translation, legal aid, compensation or expenses. All of the criminal justice agencies have been working out the implications of the directive for each agency. They all have an action plan on which they have been working and implementing for the past while. This is something that will improve with time; it will not happen overnight. We are talking about changes in culture also - reaching out to victims in a way that organisations might not have done previously.

Section 7 goes into detail on the information a victim will receive and when and how he or she can be given the information. Victims must be given information on any significant development in the investigation, including the arrest, charging or release on bail of a suspect and any trial and sentence imposed on an offender. Where an offender is imprisoned or detained as a result of the offence, the victim will be entitled to receive information from the Irish Prison Service, the Central Mental Hospital or a children's detention school. A person can let be it be known that he or she wants to have information, but at this point it is voluntary. There is now a statutory right to receive that information from the Irish Prison Service, the Central Mental Hospital or a children's detention school on any release of, including temporary release, or escape from custody by the offender. Deputies can see that this is all about keeping the victim informed of developments in a particular case he or she has been impacted by in order that he or she will be kept informed from the moment he or she makes contact with An Garda Síochána or a case is opened. The offender could move from prison to probation. Each of these organisations has a responsibility to give that information and keep the victim informed along the way.

Section 10 provides that, unless otherwise required under the Bill, information does not have to be disclosed where it could interfere with an investigation or future criminal proceedings or endanger any person or the security of the State.

Part 3 of the Bill concerns the protection of victims during investigations and criminal proceedings. It goes into detail on the formal complaint. Falling victim to a crime when one is away from home can be particularly difficult and there are a number of specific rights to address the needs of victims of crime in member states other than the one in which they live. Under section 12, if an Irish resident makes a complaint about an offence which took place in another member state, An Garda Síochána must forward the complaint without delay to the member state in which the offence took place. In addition, section 13 provides that victims of crime in Ireland who are resident in another EU member state may have their statements taken immediately. There are many practical protections built in. Section 13 also sets out other measures for the protection of victims during interviews.

As I mentioned, this is a victim-centred Bill. As such, it focuses on the victim and his or her needs.

Sections 14 to 18, inclusive, make provision for the assessment of victims and the implementation of protection and special measures identified by that individual assessment. The assessment must take into account the nature and circumstances of the crime but the focus is very much on the personal needs of the victim.

The protection needs which may be identified include: advice on personal safety and the protection of property; advice on safety orders and barring orders; and applications to remand an offender in custody or to seek conditions on bail. Special measures during investigations may include interviews being conducted by a specially-trained person - by the same person or by a person of the same sex - in premises specially designed for the purpose of conducting interviews. The Bill goes into a lot of detail about protection of the victims and how they should be dealt with by the different agencies.

There is also a section recognising the particular needs of children. The child victims of crime are particularly vulnerable. In determining the special measures which they may benefit from, the Garda must have regard to the best interests of the child and must take the views of the child and his or her parents into account. Of course, a child has to be accompanied by an adult if he or she is being interviewed.

Section 19 provides a power for the court to exclude the public where necessary and section 20 provides that the court may prevent unnecessary questioning regarding a victim's private life.

Sections 21 to 23, inclusive, make provision for the requirements of the EU directive relating to communication, translation and interpretation. Then there is a number of changes that will flow from this legislation that need to be made in some other legislation.

There are also various provisions being introduced which will facilitate evidence being given through live television link or through an intermediary - that is extended to all victims - and various other protections. For example, new provisions are introduced to facilitate a victim giving evidence from behind a screen or other device in order that the victim cannot see the accused and to prohibit the judge and lawyers from wearing wigs and gowns when a child victim is giving evidence.

The Criminal Justice Act 1993 is amended to extend the right to make victim impact statements to victims of all offences, or in certain circumstances their family members. The Bill also amends the Courts Service Act 1998 to require the Courts Service to make arrangements for the separation of victims and their families from offenders and their families in the course of criminal proceedings and, in any new court buildings, to provide separate waiting areas for victims. In the light of some of the old buildings used, this is clearly an issue about which people often speak to us. We are told how difficult it can be when a case is being heard and when the victims and the accused are in the same area. This is a difficult situation. We have this situation in some of the courthouses, here in Dublin and elsewhere. The Bill recognises that we need to have the kind of facilities that respect the different situations in which people find themselves.

The Bill is a significant step forward in recognising the obstacles faced by victims of crime in the criminal justice system and providing victims with support and information to help them through what is often the most difficult process for them.

I hope that Deputies will feel that they can support this legislation. I look forward to hearing what Deputies have to say on this. I thank all of the criminal justice agencies which, as I say, have been working hard to develop their supports to victims and implement new procedures and arrangements so that they reach out to the victims with whom they come in contact.

Unfortunately, the Bill cannot prevent the terrible trauma and harm which many victims suffer as a result of the crimes perpetrated against them but I hope it will prevent further unnecessary trauma and re-victimisation of a person arising from his or her interaction with the criminal justice system.

I commend the Bill to the House.

Tá an Teachta Jim O'Callaghan ag roinnt a chuid ama leis an Teachta Jack Chambers.

Deputy Jack Chambers will be taking five minutes and I will be taking 15.

Fianna Fáil will be supporting this legislation, although we will be making some proposals which we think could improve it.

Historically, the criminal justice system in Ireland, and indeed, throughout the world, did not take into account the concerns or interests of victims. Traditionally, the criminal justice system was about one question only, namely, the ascertainment of the guilt or innocence of an accused person before the court. When a crime was committed, a complaint would be made by a victim to An Garda Síochána or sometimes gardaí would investigate without a complaint being made in circumstances where, for example, there was an obvious crime such as a murder. After that, An Garda Síochána, which has considerable powers, would commence an investigation. Gardaí could arrest persons or access and seize property. They would then put together a file and this would be sent to the Office of the Director of Public Prosecutions. The latter would then make a decision as to whether a prosecution could take place. Throughout that process, what would occur was the victim would simply be interviewed by the Garda and provide a statement. That statement would then be part of the evidence that would go in the file from the Garda to the Director of Public Prosecutions and the latter would make the decision as to whether to prosecute.

The Office of the Director of Public Prosecutions is an extremely important office. It is important but it is also controversial. The reason it is controversial is that many victims of crime in this country question why decisions have not been made to prosecute individuals for crimes that complaints have been made about. The Office of the Director of Public Prosecutions has a difficult task. On one hand, it would be untenable for the office to bring a case in circumstances where there is insufficient evidence to get that case before a jury. On the other, the Director of Public Prosecutions has a responsibility to ensure that if there is evidence of a reasonable complaint against an individual, that should be put before a court and a jury to determine the guilt or innocence of the accused. However, it is in that particular circumstance, where a decision is made to prosecute or not to prosecute, that many citizens feel that they have been denied justice. That is the way the criminal justice system has proceeded historically, with the victim playing a very limited role in it.

Since probably the mid-1990s, the law has been gradually changing to take into account the circumstances of victims of crime. It is welcome that the trend started back in the 1990s and that it is continuing today. The publication of this legislation is the high mark of all victims legislation that we have had in this country to date.

In considering the circumstances of victims of crime, we need to recognise that there are two strands ongoing when the criminal justice process is in operation. The first is the important strand that seeks to determine whether an individual is innocent or guilty of a stated offence. We must not forget that the accused before a criminal trial has rights, particularly that of being presumed innocent until proven guilty. However, there is another strand and this involves the victim. Unfortunately, under our criminal justice system, that strand has lagged behind the first strand for far too long.

As stated, the law began to change in the 1990s. The first item of legislation that took into account the circumstance of victims was probably the Criminal Evidence Act 1992. That Act made it easier for witnesses to give evidence in physical or sexual abuse cases by allowing for a live television link with the court. It also made it easier for children to give evidence in court. After that, the Criminal Justice Act 1993 required a court to consider the effect of a violent or sexual offence on a victim when it is deciding the sentence. That victim impact statement has become a central part of the criminal justice system. It is an extremely valuable part of the criminal justice system in order to assist a court in determining the nature of a sentence that should be imposed on a person who has been found guilty of an offence.

It is something that is used widely in the courts and which should continue to be used because it is the opportunity for the victim to speak in court and to let the adjudicative body know the impact the crime had upon the victim.

It is also worth noting that in respect of that legislation in 1993, the Director of Public Prosecutions was given the entitlement to appeal sentences which were too lenient. That is another right that is to the benefit of victims who believe that they have gone through a lengthy criminal justice, undergone the difficulty of giving evidence and being challenged on their evidence, the accused has been found guilty and then a lenient sentence is imposed. There is that opportunity, therefore, for the DPP to appeal a sentence under the 1993 Act.

The Civil Legal Aid Act 1995 allowed the Legal Aid Board to provide legal aid or advice to a complainant in certain criminal cases involving prosecution for a range of sexual offences, including rape. It is highly important that complainants in criminal cases such as rape are given the support of the State to ensure their legal rights and obligations are protected should they have to give evidence before the court. The Domestic Violence Act 1996 provided protection where there is a violent family member and allows for the imposition of a safety order or a barring order. That is also to the benefit of victims of crime. The Bail Act 1997 allowed a court to refuse bail to a person if it is likely that the person may commit another serious offence while on bail.

It is important to note that in 2010, the then Minister for Justice and Law Reform, Dermot Ahern, launched a new charter outlining rights and entitlements for victims of crime, namely, the Victims Charter and Guide to the Criminal Justice System. That set out in an accessible way the range of support services and help lines available to the public, and it placed victims at the centre of the justice system. It gave definitive commitments to the victim of crime on behalf of a voluntary sector organisation, the Crime Victims Helpline, and it involved eight other criminal justice agencies such as the Director of Public Prosecutions and An Garda Síochána. It also gave clear contact points in each organisation if it did not live up to the expectations of the victim.

That victims charter and guide that was published in 2010 was developed in consultation with the criminal justice agencies and, as a result, there were very obvious and beneficial modernisations in the criminal justice system. For instance, we know that the Garda now has gay liaison officers. That is as a result of the charter introduced in 2010. We know the Garda now monitors racial incidents and has ethnic liaison officers. That is also as a result of the charter introduced in 2010.

It is important to note that the law and society have been changing over the past 30 years or so to take into account the interests of victims.

Among the many findings of the Garda Inspectorate report on crime investigation of 2014 was that of an inconsistent approach to updating victims of crime on the investigations that were ongoing. As the Tánaiste will be aware, Members debated here previously the O'Higgins report into certain events in the Cavan-Monaghan Garda district. What stood out from that report was that there were many examples of complaints that had been made by citizens to An Garda Síochána about offences that had been committed against them. It was disappointing, to say the least, that so many of those complaints were not thoroughly investigated. It was disappointing that so many of those complainants were not treated adequately by this State in having their complaints adequately investigated. A person who is a victim of crime and who makes a complaint to An Garda Síochána in the State has an entitlement to believe that crime will be adequately investigated. Such people have an entitlement to believe they will be updated as to how that investigation is ongoing and they have an entitlement to be told the current status of the potential prosecution. I am pleased to note that will be provided for in the legislation being brought through the House.

It is noteworthy that in the Garda Inspectorate report of 2014, there was a section entitled "Putting Victims at the Heart of the Garda Service". It is important to acknowledge that An Garda Síochána has accepted the findings of the Garda Inspectorate in respect of victims and efforts are being made by An Garda Síochána to ensure that victims are treated in a more humane, proper and thorough way than was the case in the past.

Other areas which may improve the welfare of victims but which are not included in the legislation are proposals that Fianna Fáil previously advanced concerning issues such as a victims surcharge. It may not be a matter for this legislation but it is appropriate that in the future we should consider whether there should be a financial demand upon a person convicted of a criminal offence against a victim so that that financial demand can be put in a fund for the benefit of that victim and the benefit of other victims of crime.

What is clearly happening in the criminal justice system is that we are moving away from the old Victorian assessment whereby a person is prosecuted, convicted and then sentenced for their crime and the only function of the State in the whole process is to punish and investigate the role played by the perpetrator. We must do more as a society for the victims of crime because of the harrowing impact crimes can have upon persons who are subjected to criminal attack.

The reason this legislation is being introduced is because of EU Directive 2012/29/EU passed by the European Union in 2012. The legislation we are considering has to transpose into Irish law the terms of that directive.

Before handing over to Deputy Jack Chambers I want to outline seven points I ask the Tánaiste to consider, and those of us on the committee on justice and equality will consider them by way of amendments should it be felt necessary to put them down.

The first point is in respect of the definition of "victim". I note the Tánaiste stated the objective is to keep the definition as broad as possible. I agree with that approach. I would be slightly concerned, however, that it refers to the fact that the person must have suffered loss directly caused by an offence. We must be absolutely sure that does not mean that there has to be an offence established in law before the individual can be considered as a victim.

The second point is that under section 3 of the legislation, a family member can be nominated to be the point of contact with An Garda Síochána where there has been a death of a victim. Unfortunately, it has been the case in this country and others that family members sometimes can be responsible for the death of another family member. We need to ensure a family member who is a suspect does not become that point of contact or does not have access to information that could assist him or her in finding out about or interfering in the Garda investigation. Obviously, the intention of the legislation is not to permit that but we must be sure there is a mechanism whereby the Garda can deal with such a situation should it arise.

The third point is that section 6(8) states that the Garda may arrange for the victim to be referred to a service which provides support for victims. I refer to that because Article 8.2 of the victims directive provides that the member state "shall facilitate the referral of victims, by the competent authority ... to victim support services". Consequently, we believe that that subsection should be amended to make it mandatory as opposed to making it discretionary.

The fourth point is that there is no reference in the legislation to the question of restorative justice and safeguards that should be introduced when restorative justice is being considered. It is instructive to note that reference to restorative justice was included in the scheme of the Bill when it was published. However, it seems to have vanished from the Bill. It is noteworthy that Article 4(1)(j) of the directive asserts that victims must be informed of the available restorative justice services and Article 12 provides that member states "shall take measures to safeguard the victim from secondary and repeat victimization ... to be applied when providing any restorative justice services". We need to look at that again as to the reason restorative justice is missing from the Bill.

The fifth point is that section 8 deals with decisions regarding prosecutions of offences. This is an extremely contentious issue and it provides for a review. I welcome that but we must ensure that such a review which is provided by the Director of Public Prosecutions for the family is protected from any defamation action that could be made.

We need to regard it as being privileged under the Defamation Act.

Section 14 requires the Garda to conduct an assessment of a victim. I am concerned that every victim of a crime, including somebody whose mobile phone has been stolen, will be entitled to have an assessment carried out as this could clog up An Garda Síochána. Therefore, we need to look at this provision carefully.

Section 30 is to be welcomed. If the prosecuting authorities and the Garda do not comply with this statute, there must be some mechanism whereby they will be held to account. It is welcome that they cannot be sued or that there cannot be a damages claim for a breach of its provisions, but we need to take into account what the consequence will be if State agencies do not comply with the legislation.

With Deputy Jim O'Callaghan and the Minister, I fully support and welcome the publication and transposition of the directive. It is interesting, when we read the background information, to note that it began in the early noughties in the European Union with a Council framework decision and that it has taken a lengthy period for it to be properly transposed, formalised and put on a statutory footing in Irish law. What is unfortunate - this is something we see too often - is how long it takes to have positive ideas at EU level properly transposed or agreed to at member state level. It is welcome that Directive 2012/29/EU is being transposed.

To make a broad point, it is important that we have a framework placed on a statutory basis to put the victim of a crime at the centre of Irish law. We all know and have met victims of crime. We have all been victims of various criminal offences at various times in our lives. It is important that victims of crime have rights and be able to contact, and have positive interaction with, the various statutory agencies. As outlined, the fundamental tenet is communication and that reviews of decisions can be made at the various stages of the process. The recent O'Higgins report detailed serious deficiencies in how victims were provided with information. This uncertainty for victims is worrying and has a significant effect on them and their families. It is important, as Deputy Jim O'Callaghan stated, that the agencies of the State be accountable to victims and that they provide a proper mechanism and review process as a crime investigation is progressed.

This morning at a meeting of the Oireachtas Joint Committee on Justice and Equality Ms Maria McDonald spoke on behalf of the Victims Rights Alliance. She made an excellent presentation on penal reform in which she highlighted a number of important points. They are worth noting. The Victims Rights Alliance is very positive about the Bill and welcomes the Minister's work in that regard, but, as Deputy Jim O'Callaghan mentioned, there are questions about restorative justice and why there is no statutory restorative justice scheme in place. The strategic review of penal policy acknowledges that the directive promotes the appropriate use of restorative justice services. This is in line with the delivery of such services in the State. The directive states "restorative justice" means "any process whereby the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the criminal offence through the help of an impartial third party". It is important to address some of the concerns of the Victims Rights Alliance. While it welcomes the centralising of the victim in statutory rights, it is concerned that restorative justice has not been included and formalised as part of the process. As we all know, we only get one chance in the short to medium term to deal with legislation to transpose a directive. As it is unlikely that we will revisit this option properly and positively in the years to come, we, therefore, need to get this right and ensure we do not dilute the potential rights of victims as part of the legislation.

The report of the Victims Rights Alliance states 72% of victims felt they had been revictimised by the criminal justice system, while more than 40% felt they had been revictimised by the accused. I hope the legislation and the work that will flow from it will reduce these alarming rates to ensure the victim will be put at the centre of the criminal justice system in the context of other balancing rights. This is important legislation which I hope we and the Minister will get right.

Debate adjourned.
The Dáil adjourned at 10.15 p.m. until 12 noon on Thursday, 2 March 2017.