I thank the committee for giving me the opportunity to speak today on behalf of the Victims' Rights Alliance, VRA. The VRA is an alliance of victim support and human rights organisations in Ireland, namely Advocates for Victims of Homicide, the CARI Foundation, the Dublin Rape Crisis Centre, the Gay and Lesbian Equality Network, the Immigrant Council of Ireland, Inclusion Ireland, the Irish Criminal Justice and Disability Network, the Irish Council for Civil Liberties, the Irish Road Victims' Association, the National Women's Council of Ireland, the Irish Tourist Assistance Service, One In Four, the Rape Crisis Network Ireland, Ruhama, Safe Ireland and Support After Homicide. The alliance was formed with one key goal, that is, to ensure that the EU victims directive is implemented in Ireland within the proposed timeframe, with all victims of crime in Ireland in mind.
Our members have different views on penal reform, sentencing and prisons. For that reason, this submission is limited to the rights afforded to victims under the victims directive and recognised rights provided to victims of crime in other common law jurisdictions. Given the short time available, it has not been possible to get all our members to sign off on this submission.
Member states of the EU, including Ireland, were required to transpose the victims directive into law by 16 November 2015, but no legislation has been enacted to date to transpose the directive in Ireland. The publication of the Criminal Justice (Victims of Crime) Bill 2016 on 29 December 2016 was the first major step in putting victims at the heart of the criminal justice system. As members know, that Bill is currently before the Dáil. The Bill is a comprehensive document which has had the benefit of significant consultation with key State and non-State agencies working with victims of crime, including victim support organisations. It broadly mirrors the content of the victims directive, although there are some glaring omissions.
The necessity to implement dedicated victims legislation is illustrated by the contents of the Guerin report, the Garda Inspectorate report from 2014, the VRA report from 2014 and the O'Higgins report of 2016. A survey by some VRA members indicated that 72% of victims surveyed said that they felt re-victimised by the criminal justice system. This should be compared with the figure of 49% of victims who indicated that they felt re-victimised by the accused. The risk of re-victimisation and intimidation should be reduced as much as possible and safeguards should be put in place to protect victims of crime during the sentencing and parole processes and on the release of the offender from prison.
The Criminal Justice (Victims of Crime) Bill, if implemented, will put victims of crime on a statutory footing in Irish law for the first time. There is currently no legal definition of a victim of crime in Irish law. Section 2 proposes to define a victim as a person who has suffered physical, mental or emotional harm or economic loss which has been directly caused by an offence. This mirrors the definition in the victims directive. Family members are deemed to be victims for the purposes of the Bill if the death of the victim was directly caused by a criminal offence. A family member will not be entitled to the rights under the Bill if he or she has been charged with, or is under investigation for, the death of the victim.
One of the major omissions within the Criminal Justice (Victims of Crime) Bill 2016 is the absence of restorative justice. There has been growing recognition that restorative justice should be explored to address the need of victims of crime for redress. It is a process that is being increasingly used by victims of crime in Ireland such as, for example, Le Chéile in Limerick. Article 2(1)(d) of the victims' directive defines restorative justice as meaning "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". Member states are not required to establish restorative justice services but where they exist, member states were required to have safeguards in place for their use.
Article 4(1)(j) of the victims' directive asserts that victims must be informed, on first contact with the Garda, of "the available restorative justice services". Article 12 of the directive outlines safeguards to protect "the victim from secondary and repeat victimisation, from intimidation and from retaliation". Restorative justice should only be used if it is in the interest of the victim to do so based on his or her free and informed consent. A victim can withdraw his or her consent at any time. Prior to agreeing to engage in restorative justice, a victim must be given complete and unbiased information. This should include information on the outcomes and the supervision of the process.
Article 12 of the victims' directive also provides for the safeguard that an offender must acknowledge the basic facts of the case, which is incredibly important. The agreement of the parties must be voluntary and it can be considered in criminal proceedings that follow, such as the sentence. If restorative justice is conducted in private then it is confidential and cannot be discussed without the consent of the parties, save where there is a prevailing public interest to do so. Victims that choose to engage in restorative justice should have the benefit of these measures in Irish legislation pursuant to the victims' directive.
Ireland has no statutory scheme for restorative justice. Notwithstanding this, judges have recommended its use to victims of crime in the court process. Sections 26 and 28 of the Children Act 2001 invite victims to be involved in a conference convened by a probation and welfare officer, which is a form of restorative justice. Restorative justice was included in the scheme of the Criminal Justice (Victims of Crime) Bill that was published in 2015. It was, therefore, a surprise that restorative justice was not included in the recently published Criminal Justice (Victims of Crime) Bill 2016. The failure to include restorative justice safeguards is an obvious omission of Ireland's obligations under the victims' directive. Infringement proceedings may be instigated by the European Commission should the Bill not be amended to include such a provision. The necessity of including restorative justice in legislation is illustrated by the fact that a court had suggested the use of restorative justice to a victim in circumstances that did not take account of the safeguards provided for in the victims' directive.
I am sure all members are familiar with the strategic review of penal policy of 2014. The review acknowledged that the victims' directive "promotes the appropriate use of restorative justice services which is in line with the existing delivery of such services in this State". Furthermore, without being provided with information on the available restorative justice measures, victims will be unable to access their rights thereunder. The victims' directive requires that victims be informed of the available restorative justice services. The Garda victim information leaflet, which was drafted in order to comply with the State's obligations, only makes reference to restorative justice services being available where the offender is under 18 years of age. There are other restorative justice services available to victims of crime who are adults. The Criminal Justice (Victims of Crime) Bill 2016 does not require the Garda to provide information on restorative justice. Again, this is a glaring omission in light of Ireland's obligations under Article 4 of the victims' directive. Failure to adequately provide information on restorative justice significantly dilutes a victim's rights under the directive. It illustrates the difference between providing rights on paper and accessing them in practice.
Victims have a right to information on an accused's remand and release from custody. Article 6(5) of the victims' directive provides that victims must be "offered the opportunity to be notified, without unnecessary delay, when the person remanded in custody, prosecuted or sentenced for criminal offences concerning them is released from or has escaped detention". Furthermore, victims should be informed of measures that have been implemented for their protection where an offender has been released or escaped from prison. Section 7 of the Criminal Justice (Victims of Crime) Bill provides that information should be provided to the victim on the offender's release or escape from custody.
Currently, upon request, victims can receive information from the Irish Prison Service about an offender's release from prison. However, once a victim opts in, he or she is provided with all information that the Irish Prison Service would deem relevant in the circumstances. Victims should be able to pick and choose what information they want to receive. For example, some victims are re-victimised every time they receive an update on an offender while other victims would like to know as much information as is available.
In Canada, the Victims Bill of Rights Act permits victims, upon request, to receive information from the Correctional Service of Canada, which is like our Probation Service, about an offender's progress towards meeting the objectives of a correctional plan and information on the correctional plan. The Correctional Service of Canada also gives victims access to a photograph of the offender prior to his or her release into the community. Victims can request access from the Parole Board of Canada to listen to an audio recording of a parole hearing if unable to attend in person. At present, victims of crime in Ireland are not entitled to a photograph of an offender nor are they able to attend or watch a parole hearing online. The Victims Rights Alliance, VRA, is cognisant that the rights of the accused must be balanced with the rights of an offender. However, at least where there is a risk of re-victimisation or intimidation, a victim should be offered the opportunity to have sight of a picture of an offender prior to his or her release from prison. Furthermore, should a victim wish to attend a parole hearing he or she should be given the opportunity to do so or given the opportunity to hear a playback of the parole hearing or both. In June 2016, the Correctional Service of Canada and the Parole Board of Canada launched an online victims portal whereby victims of crime could receive and view appropriate information about the offender, view and manage preferences for receiving information and submit a victim statement to the Correctional Service of Canada and the Parole Board of Canada. In addition, they could request to observe a parole hearing, request to present a victim statement at a parole hearing and request a copy of the parole decision. It might be worth considering running a similar pilot programme in Ireland.
Like the Irish Penal Reform Trust, the VRA believes that the parole process is in need of reform. The independence of the parole board is essential to ensure that justice is adhered to, not only for the victim of crime but also for the offender. The author is aware of one instance where a parole board member referred to a victim who sought revenge on an offender. This example is mentioned to illustrate the issue of bias and the importance of an objective parole board. It is respectfully submitted that legislation relating to the make-up of a parole board should be cognisant of Article 1 of the victims' directive, such that "Member States shall ensure that victims are recognised and treated in a respectful, sensitive, tailored, professional and non-discriminatory manner, in all contacts with victim support or restorative justice services or a competent authority, operating within the context of criminal proceedings." The Irish Parole Board may be deemed to be a competent authority for the purpose of this legislation.
Article 25 of the victims' directive provides that "officials likely to come into contact with victims" should get both specialist and general training appropriate to their level of contact with the victims of crime so as to "enable them to deal with victims in an impartial, respectful and professional manner". Having due regard to the independence of the legal profession the victims' directive recommends that training be made available to "increase the awareness of judges and prosecutors of the needs of victims". The Irish Council for Civil Liberties, in conjunction with The Bar Council of Ireland and the Law Society of Ireland with financial support from the Justice Programme of the European Union, are developing a training programme for lawyers on the victims' directive.
The VRA is cognisant of the independence of the Judiciary. However, I draw the committee's attention to a Private Members' Bill in Canada, namely, an Act to amend the Judges Act and the Criminal Code (sexual assault), which was introduced in Canada last Thursday, 23 February. The Bill appears to have general support in Canada. In summary:
This enactment amends the Judges Act to restrict eligibility for judicial appointment to individuals who have completed comprehensive sexual assault education. It also requires the Canadian Judicial Council to report on continuing education seminars in matters related to sexual assault law. Furthermore, it amends the Criminal Code to require a court to provide written reasons in sexual assault decisions.
On Monday I spoke with Judge Hinkle and Anna Evans of the Massachusetts Trial Court, who developed and implemented training specific to domestic violence in the Massachusetts Trial Court. The training has been effective and well received by employees across Massachusetts who work within the courts. The Chief Justice of the Massachusetts Trial Court has made it compulsory for all judges to participate in the training programme, including court officers, facilitation offers and some lawyers, such as guardians ad litem. Training is essential to ensure that victims of crime get access to their rights under the victims' directive. Persons working with victims of crime within the sentence, restorative justice and parole process should receive appropriate training.
I thank the committee for giving the opportunity to speak here today. I hope that my presentation was not too lengthy. I hope that we will have an opportunity to speak more generally on the Criminal Justice (Victims of Crime) Bill 2016. I thank the members for their time.