Criminal Justice (Victims of Crime) Bill 2016: From the Seanad

The Dáil went into Committee to consider amendments from the Seanad.
Seanad amendment No. 1:
Section 1: In page 5, line 21, to delete “provisions” and substitute the following:
"provisions; and, in particular, paragraph (b)(ii) and paragraph (d) of section 29 may be brought into operation on different days for different courts and for different circuits and different district court districts".
Seanad amendment agreed to.

Seanad amendments Nos. 2 and 23 are related and will be discussed together. Is that agreed? Agreed.

Seanad amendment No. 2:
Section 6: In page 9, between lines 8 and 9, to insert the following:
“Repeal of provisions of Criminal Law (Sexual Offences) Act 2017
6. The following provisions of the Criminal Law (Sexual Offences) Act 2017 are repealed:
(a) section 36, save in so far as it inserts section 14C in the Criminal Evidence Act 1992;
(b) section 38.".
Seanad amendment agreed to.

Seanad amendments Nos. 3 to 8, inclusive, are related and will be discussed together. Is that agreed? Agreed.

Seanad amendment No. 3:
Section 21: In page 25, line 2, after "understand" to insert "them".
Seanad amendment agreed to.
Seanad amendment No. 4:
Section 21: In page 25, line 11, after "witness" to insert "or is giving evidence under section 5(3) of the Act of 1993".
Seanad amendment agreed to.
Seanad amendment No. 5:
Section 21: In page 25, to delete line 16, and substitute the following:
"assistance to understand the proceedings, or to be understood, by way of—".
Seanad amendment agreed to.
Seanad amendment No. 6:
Section 21: In page 25, to delete line 18 and substitute "witness or when giving evidence under section 5(3) of the Act of 1993, or".
Seanad amendment agreed to.
Sitting suspended at 11.22 a.m. and resumed at 11.30 a.m.
Seanad amendment No. 7:
Section 21: In page 25, line 20, after “trial” to insert “or to a person giving evidence under section 5(3) of the Act of 1993”.
Seanad amendment agreed to.
Seanad amendment No. 8:
Section 22: In page 25, lines 38 and 39, and in page 26, lines 1 and 2, to delete all words from and including “that” in line 38 down to and including “or” in line 2 and substitute the following:
“that, during the course of an investigation of an alleged offence or any criminal proceedings relating to that offence, the victim does not require such assistance in order to understand them or to be understood, or”.
Seanad amendment agreed to.
Seanad amendment No. 9:
Section 29: In page 30, line 24, to delete “section 14B” and substitute “section 14AA”.
Seanad amendment agreed to.
Seanad amendment No. 10:
Section 29: In page 30, line 26, after “link.”,” to insert “and”.
Seanad amendment agreed to.
Seanad amendment No. 11:
Section 29: In page 30, line 27, to delete “and”.
Seanad amendment agreed to.
Seanad amendment No. 12:
Section 29: In page 30, to delete line 28.
Seanad amendment agreed to.
Seanad amendment No. 13:
Section 29: In page 30, line 33, to delete “Where” and substitute “Subject to section 14AA*, where”.
Seanad amendment agreed to.
Seanad amendment No. 14:
Section 29: In page 30, lines 38 and 39, to delete all words from and including “satisfied” in line 38 down to and including “require” in line 39 and substitute “satisfied that the interests of justice require”.
Seanad amendment agreed to.
Seanad amendment No. 15:
Section 29: In page 31, line 5, to delete “sections” and substitute “section”.
Seanad amendment agreed to.
Seanad amendment No. 16:
Section 29: In page 31, line 6, to delete “Evidence from behind a screen or other similar device” and substitute “Placement of screen etc. for giving of evidence”.
Seanad amendment agreed to.
Seanad amendment No. 17:
Section 29: In page 31, lines 10 and 11, to delete all words from and including “that” in line 10 down to and including “accused” in line 11 and substitute the following:
“that a screen or other similar device be positioned, in an appropriate place, so as to prevent the witness from seeing the accused when giving evidence”.
Seanad amendment agreed to.
Seanad amendment No. 18:
Section 29: In page 31, line 14, to delete “Where” and substitute “Subject to section 14AA*, where”.
Seanad amendment agreed to.
Seanad amendment No. 19:
Section 29: In page 31, line 19, to delete “is 18 years or more” and substitute “has attained the age of 18 years”.
Seanad amendment agreed to.
Seanad amendment No. 20:
Section 29: In page 31, to delete lines 23 to 26 and substitute the following:
“satisfied that the interests of justice so require, direct that a screen or other similar device be positioned, in an appropriate place, so as to prevent the victim from seeing the accused when giving evidence.”.
Seanad amendment agreed to.
Seanad amendment No. 21:
Section 29: In page 31, line 33, to delete “seen and”.
Seanad amendment agreed to.
Seanad amendment No. 22:
Section 29: In page 31, line 33, to delete “accused.” and substitute “accused.”,”.
Seanad amendment agreed to.
Seanad amendment No. 23:
Section 29: In page 31, to delete lines 34 to 41, and in page 32, to delete lines 1 to 18 and substitute the following:
“(e) by the insertion of the following section after section 14A:
“Matters to be taken into account under sections 13, 14 and 14A regarding victims
14AA. The court, in deciding—
(a) whether to grant leave under section 13(1A) for a victim to give evidence through a live television link,
(b) whether, under section 14(1A), the interests of justice require that it direct that questions be put to the victim through an intermediary,
or
(c) whether, under section 14A(2), the interests of justice require that it direct that a screen or other similar device be positioned, in an appropriate place, so as to prevent the victim from seeing the accused when giving evidence, shall have regard to the need to protect the victim from secondary and repeat victimisation, intimidation or retaliation, taking into account—
(i) the nature and circumstances of the case, and
(ii) the personal characteristics of the victim.”,”.

I move amendment No. 1 to Seanad amendment No. 23:

In section 29, in the inserted section 14AA proposed to be inserted by Seanad Amendment no. 23, to delete

“(i) the nature and circumstances of the case, and

(ii) the personal characteristics of the victim.”,”

and substitute the following:

“(i) the type and nature of the offence;

(ii) the circumstances of the commission of the offence;

(iii) the severity of the offence having regard to any harm suffered by the victim;

(iv) the personal characteristics of the victim, including his or her age, gender, gender identity or expression, ethnicity, race, religion, sexual orientation, health, disability, communications difficulties, relationship to, or dependence on, the accused and any previous experience of crime;

(v) whether the offence appears to have been committed with a bias or discriminatory motive, which may be related to the personal characteristics of the victim including those referred to in paragraph (iv), and

(vi) where it is proposed that the victim give evidence through a live television link under section 13, whether or not the person is resident in the State.”,”.

As the Bill went through the Seanad the Government amended section 23, removing a number of details of the victim's circumstances that have to be taken into account by the court in deciding whether to allow a victim to give evidence through a television link or from behind a screen etc. so as to prevent repeat victimisation. Our amendment is trying to reinsert those details. The version agreed by the Dáil was much more detailed and rightly focused on the various reasons a victim might need a special measure to assist them in court. It would be a shame to lose the helpful detail contained in the deleted subparagraphs, including whether the offence appears to have been committed with a discriminatory motive, the severity of the offence, the harm suffered by the victim and so on. The Government has amended the existing provision to the effect that only the nature and circumstances and the personal characteristics of the case will be taken into account, meaning these are the only two matters to which the court can have regard in making its decision. By contrast, Article 22.2 of the victims' directive, which we are supposed to be transposing, outlines three aspects that should be considered, namely, the personal characteristics of the victim, the type or nature of the crime, and the circumstances of the crime.

The type of crime has not been included in section 14, amended by the Seanad and by the Government. It could be argued that the "nature" and "type" of a crime are the same but they are not and the reason the European Commission saw fit to include both establishes that fact. It is very clear what the type of a crime is but the nature of a crime is a vaguer notion. Section 14AA states that the court shall have regard to the need to protect the victim from secondary and repeat victimisation, intimidation or retaliation, taking into account the nature and circumstances of the case, and the personal characteristics of the victim. We are seeking to list the aspects to which the court shall have regard when deciding whether or not to permit aids in providing evidence.

Article 22.3 of the victims' directive explains what is meant by the term "personal characteristics" of a victim and I have grave concerns that some of these may not be considered by the court if they are not included in the legislation. I have put them into the amendment to give the proper context and it is worth quoting the exact wording of Article 22.3 at this point:

In the context of the individual assessment, particular attention shall be paid to victims who have suffered considerable harm due to the severity of the crime; victims who have suffered a crime committed with a bias or discriminatory motive which could, in particular, be related to their personal characteristics; victims whose relationship to and dependence on the offender make them particularly vulnerable.

Section 14AA does not take into consideration the severity of the crime or the degree of harm. We are looking to reinsert something the Dáil has already agreed.

I apologise to the Leas-Cheann Comhairle and the Minister for not being in the House but we were at a committee meeting on the Judicial Appointments Commission Bill 2017.

I had put my name to this amendment but, since doing so, I have been contacted by a helpful official in the Department of Justice and Equality, who made a number of points which I found compelling. The proposed amendment would require the court to take into account the type and nature of the offence, the circumstances of the commission of the offence and the severity of the offence. In order for a court to determine whether or not evidence should be given by television or video link, the court would need an assessment of the offence but the use of the words "nature of the offence, the circumstances of the commission of the offence and the severity of the offence" would make that task very difficult for the court. In effect, the court would have to hear evidence from the individual concerned to get information about the nature of the offence before it could reach a determination about whether video-link evidence was appropriate. The wording in the Seanad amendment is broader and allows the court to take into account the nature and circumstances of the case and the personal characteristics of the victim. The last thing anyone in this House wants to do is to put a victim through a traumatic experience in a court of law that would have the effect of aggravating the original crime. The purpose of the amendment, and the legislation, is to ensure that does not happen. We do not want to put in a provision that would make it even more complicated by requiring the court to assess the offence before invoking the procedures under the statutory provision. For this reason I withdraw my support for the amendment and I think we are better off removing it.

I support the amendment as there is a strong case for it. As we are transposing the victims of crime directive, it would be very valuable to have a facility such as this for people who are subject to horrific crimes and who could be at risk of revictimisation. Deputy Clare Daly rightly states that the provision in the Bill as first passed by the Dáil was broader and allowed a greater range of circumstances to be taken into account. This could be required for a great many cases and should be considered in other circumstances too.

I thank the Deputy for his further input. We are anxious that this Bill be passed as soon as possible.

The new section 14AA sets out the factors which a court must take into account when considering whether a victim may give evidence through a live television link, with the use of a screen or through an intermediary. Its purpose has been to provide the court with some guidance in making its decision. In the Bill as published, this guidance is quite detailed in respect of the factors which are taken into account as part of an assessment of the victim. The amendment proposed by the Deputies seeks to retain this detailed list whereas Seanad amendment No. 23 proposes replacing it with just two factors: the nature and circumstances of the case and the personal characteristics of the victim.

Seanad amendment No. 23 was introduced following concerns raised by the Director of Public Prosecutions that the original wording would require elements of the offence to be proved before a victim could benefit from a special measure. Under the original wording, the court must take into account the type and nature of the offence, the severity of the offence and other particulars of the offence. In order to do so, the prosecution would have to call evidence of the nature, type and severity of the offence. These elements of the offence may need to be proved before the victim could be granted leave to give evidence via a video link or use of a screen or intermediary. Quite apart from the operational difficulties this would entail, in many cases it would not be possible without the evidence of the victim. In such cases, the victim would not be able to give evidence via video link, screen or intermediary.

To fix this problem, the wording was changed in the Seanad to refer to two broader factors, namely, the nature and circumstances of the case and the personal characteristics of the victim. This wording is wide enough to encompass all of the original criteria but general enough not to require evidential proof. It is already used in section 41 of the Criminal Procedures Act 1967, which has been on the Statute Book since 2001 and works well in that context. The original wording retained in the Deputies' amendment creates a barrier which the victim has to get over in order to access the special measure.

The aim of Seanad amendment No. 23 is to allow the court to consider the general nature of the case rather than the specifics of the offence. The court may also take into account any relevant personal characteristics of the victim. The amendment will make it possible for more victims to avail of the special measures.

I would ask the Deputies to seriously consider what I and Deputy O'Callaghan have said. They could actually be making things more difficult for the victim by pushing the amendment, as the victim could be called upon to give evidence. We are trying to avoid that. We want to make it easier for the victim to use the television, intermediary or screen. The amendment proposed by the Deputies would actually mean that a victim might have to come in to prove he or she would need to use the screen or special measures. That would be a self-defeating, catch-22 situation. I ask the Deputies to consider withdrawing the amendment to the Seanad amendment.

It is interesting that the helpful official chose to telephone Deputy O'Callaghan and did not seem to try to telephone us. That might have assisted matters but we know how new politics works.

I am informed that there was an effort made to contact Deputy Daly.

I have an incredibly efficient office which I supervise diligently so I would find it incredible if that were the case - it would be an absolute first. In any case, I am joking slightly. I really do not mind that much, although it would have helped.

It might have been the day that they went to the pub.

The Minister of State makes a very good argument. The amendment to the Seanad amendment was proposed in consultation with people who work with victims. Those from the Victims Rights Alliance, who were to the forefront of this matter, read it in the context of the Article. They viewed the changes as meaning that, for people who would previously have been included in the net to get the special measures, their circumstances would not be taken into account by the court, and that fewer people would benefit from that protection. The Minister of State's reply indicates that, in fact, the interpretation is that more people would benefit. It is very difficult to argue against that if it is the best advice available. I will accept the bona fides of what the Minister of State has put forward.

In return, if the Leas-Cheann Comhairle will indulge me, I will raise a slightly different point. The issue came up on Committee Stage that, contrary to the victims directive, the Bill we are about to ratify does not cover all the prosecuting authorities. The Minister of State said he might return to that issue as it was too broad for this Bill. In respect of other bodies under whose remit a death might actually come, such as the Food Safety Authority and the Health and Safety Authority, the victims of such crimes as are prosecuted by these bodies are not entitled to the same information and protections that are provided for under this Bill. On Committee Stage, the Minister of State said he would examine the matter. Has there been any progress in that regard?

How stands the amendment?

I will withdraw it.

Amendment No. 1 to Seanad amendment No. 23, by leave, withdrawn.
Seanad amendment No. 23 agreed to.
Seanad amendment No. 24:
Section 29: In page 32, to delete lines 19 and 20 and substitute the following:
“(f) by the insertion of the following section after section 14AA:
“Wigs and gowns
14B. Where a person who is under 18 years of age—”.
Seanad amendment agreed to.
Seanad amendment No. 25:
Section 29: In page 32, between lines 25 and 26, to insert the following:
“(g) in paragraph (a) of section 14C(1), by the substitution of “a relevant offence” for “an offence to which this Part applies”,”.
Seanad amendment agreed to.
Seanad amendment No. 26:
Section 29: In page 33, lines 3 and 4, to delete “through a live television link, by means of a videorecording or from behind a screen or other similar device” and substitute the following:
“through a live television link or by means of a videorecording or that a screen or other similar device be used in the giving of evidence”.
Seanad amendment agreed to.
Seanad amendment No. 27:
Section 29: In page 33, lines 12 and 13, to delete “or from behind a screen or other similar device pursuant to section 14A” and substitute “or using a screen or other similar device pursuant to section 14A”.
Seanad amendment agreed to.
Seanad amendment No. 28:
Section 29: In page 33, line 24, to delete “sections 13, 14, 14A, 14C, 15 and 16” and substitute “sections 14, 14B, 15 and 16”.
Seanad amendment agreed to.
Seanad amendment No. 29:
Section 31: In page 34, between lines 28 and 29, to insert the following:
“Amendment of section 4 of Bail Act 1997
31. Section 4 of the Bail Act 1997 is amended—
a) by the insertion of the following subsection after subsection (2):
“(2A) Subsection (2) is without prejudice to the right of—
(a) a parent, relative or friend of a person in respect of whom the offence is alleged to have been committed (in this subsection referred to as “the relevant person”), or
(b) a support worker chosen by the relevant person, to remain in court, where the relevant person gives evidence pursuant to section 9A, for the duration of such evidence.”.
(b) in subsection (5), by the insertion of the following definition:
“ ‘support worker’ means a volunteer of, or an individual employed under a contract of service or under a contract for services by, an organisation which provides support to victims of crime.”.”.
Seanad amendment agreed to.
Seanad amendment No. 30:
New section: In page 37, after line 32, to insert the following:
“Reporting on training provided
36. Within 60 days after the end of each calendar year those responsible for the training within An Garda Síochána, the Ombudsman Commission, the Director of Public Prosecutions, the Irish Prison Service, the Court Service, the Bar of Ireland, the Law Society of Ireland and the Judicial Studies Institute shall publish in written form a report of any general and specialist training which has been provided in accordance with the provisions of this Act and Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA.”.

I move:

That the Committee do not agree with the Seanad in amendment No. 30 to the Criminal Justice (Victims of Crime) Bill 2016.

The Government opposed this amendment in the Seanad. It requires a number of bodies, statutory and non-statutory, to report on training provided in accordance with the Bill and the EU directives. We agree that training is fundamental in delivering on the rights provided for in the Bill. However, I would consider the provision of training to be an operational matter rather than a legislative one. At present, training has been provided to all State solicitors, the staff of the Office of the Director of Public Prosecutions, both administrative and legal staff, An Garda Síochána and prosecutors nationwide. The Irish Prison Service and the Courts Service have also undergone training to enable greater support for victims of crime. Training has been given to a number of non-governmental organisations involved in assisting victims of crime, for example the victims of crime helpline, the Rape Crisis Centre, and Advic. These organisations are to receive further training from the Office of the DPP following the finalisation of this Bill. Furthermore, An Garda Síochána has specially trained personnel working in its victims service office in each division, and 474 trained family liaison officers working to support victims of crime.

Our opposition to the amendment in the Seanad was to the effect that we were concerned about the wording of the amendment. The amendment requires certain non-statutory bodies to report on training in accordance with the provisions of this Act and the EU directive. However, there are no such provisions in this Act and the provisions of the EU directive do not require such bodies to provide this training, so there is some discrepancy in the provision. There is also some question as to how appropriate it is to be legislating in this way for some of the bodies included, for example, the Bar Council, the Law Society and so on.

Question, "That Seanad amendment No. 30 be not agreed", put and declared carried.
Disagreement to Seanad amendment reported.
Seanad amendment No. 31:
Title: In page 5, lines 10 and 11, to delete “the Criminal Justice Act 1993, the Courts Service Act 1998, the Children Act 2001 and the Criminal Justice (Female Genital Mutilation) Act 2012” and substitute the following:
“the Criminal Justice Act 1993, the Bail Act 1997, the Courts Service Act 1998, the Children Act 2001, the Criminal Justice (Female Genital Mutilation) Act 2012 and the Criminal Law (Sexual Offences) Act 2017”.
Seanad amendment agreed to.

I am very pleased to see this Bill finalised through the Houses. The rights provided for in this Bill will make a very real difference to the experiences of victims in the criminal justice process. The Bill has been drafted and improved upon with the assistance of many people and organisations. I would like to record my thanks and those of the Minister for Justice and Equality to all those working with victims who have contributed to the Bill before us. It is thanks to their active engagement that we have passed what I think is very good legislation. The views of Opposition Deputies were also taken on board whenever possible.

I thank Members for their excellent contributions and the positive debate we have had. No legislation is ever perfect and the Bill will need careful monitoring to ensure it will deliver what it promises, but we have made a good start in recognising the role of victims of crime in the criminal justice system and ensuring they will be informed and supported throughout the process. I hope the majority of sections will be in force within weeks, with the entire Bill in force before the end of the year or early next year. I thank colleagues for their support and positive engagement. We will monitor the position and if something comes up that needs to be changed and improved on, we will try to do it, but we are all agreed that it is important that we support victims. I thank the Leas-Cheann Comhairle, Members and staff for their assistance in making this happen.

I join the Minister of State in welcoming the passing of this important legislation. For too long victims have been the poor relations in the criminal justice system and the State and the criminal justice system have looked on the process in the courts as being about the determination of the guilt or innocence of an accused. While that is the primary function of the system, we have to recognise that during the process victims should be at the forefront and that they need to be protected. Many Members receive representations about the actions of the Director of Public Prosecutions. "Why has an individual not been prosecuted?" is a constant refrain from families who believe justice has not been done. It is welcome that under Part 2 of the Bill people will be able to seek a review from the Office of the Director of Public Prosecutions and information on the reasons a prosecution did or did not take place. It is a good day for the criminal justice system. It is important that we continue to adopt legislation that seeks to protect victims of crime. It is important that be recognised not just at the time of the criminal hearing but also throughout the process, even after a conviction or an acquittal has occurred.

The legislation is welcome. We are conscious that almost 320 cases were referred to the independent review mechanism. While they are historical and I acknowledge that the Bill will not deal with cases retrospectively, the lack of communication and information had a huge bearing on the displeasure of those involved. There was so little satisfaction in those cases and we are hopeful the legislation will ensure there will not be a repeat.

Like other Members, I welcome the legislation. The European directive is progressive and the legislation equally so. As Deputy Jim O'Callaghan said, it redresses to some extent the imbalance that might be perceived between the victims of crime and the primary purpose of a trial, that is, to determine the guilt or otherwise of the defendant.

Seanad amendments reported.
Sitting suspended at 11.55 a.m. and resumed at 12 noon.