The society welcomes the opportunity to contribute to the consideration by the committee of the Bill. The Bill comes at an important time for Ireland, having just ratified the Istanbul Convention, that is, the Council of Europe convention on preventing and combating violence against women and domestic violence. Our obligations under the convention must be matched by clear actions, structural changes and necessary resourcing. It also arises on the eve of publication of Professor Tom O’Malley’s review of the conduct of investigations and prosecutions of sexual offences. The society, practitioners and others await the recommendations to be made in that review which we anticipate will further support the victim in these circumstances, while not compromising the rights of the accused. I am joined by my colleague Áine Breathnach. Both of us practise in this area and are members of the society’s human rights and equality and criminal law committees, respectively
As of today, the right to legal aid and representation for victims of sexual and gender based violence is ad hoc and piecemeal. The Bill provides an opportunity for the State to develop a comprehensive legal advice and aid service for victims of sexual and gender based violence in a way that will support them throughout the criminal justice process. The prosecution and successful conviction of sexual offences are necessary in a society that wants to protect and vindicate the rights of all victims of sexual and gender based violence, including women, girls, boys and men. It is in the public interest for victims to be supported through the legal process as the victim is the primary and often only witness of these crimes which, by their very nature, strike at the core of their dignity. It is also important that victims be aware of their rights to privacy on issues of disclosure of counselling, phone records, medical records and other personal information. The witness, complainant or victim, depending on circumstances, is key to a successful prosecution and, as such, should be afforded comprehensive and continuous representation. Currently, victims have no right to legal representation before making a complaint to An Garda Síochána.
I support the remarks made in the previous submission on this matter. The provision of information on what could be coming down the line for a person embarking on this process is extremely important and forewarned is forearmed in this situation. It would also attempt to avert the experiences relayed to Deputy O'Callaghan by somebody who had been through the process. There is also no right to legal representation where the Director of Public Prosecutions decides not to prosecute, while there is limited funding to provide for a right to legal representation in the disclosing of counselling and medical notes.
The Bill represents a lifeline and important public service for those affected and Deputy O’Callaghan is to be commended for advancing it. Some of things to which I have referred are happening for practitioners, but they are being done without payment, generally because of the means of the individual concerned. The Government's support for the Bill is welcome. Its endorsement of the Istanbul Convention and the Domestic Violence Act in recent years provides practitioners with hope its interest in criminal justice issues is genuine and sincere.
I will address a number of issues dealt with in the Bill. On the subject of providing clarity on the type of legal advice to be provided, there are many stages in dealing with a criminal complaint and prosecution. The Bill will provide an opportunity for victims to make informed decisions throughout the process, provided that the right to funding for a solicitor and legal advice begins prior to making the complaint. Use of a solicitor who is qualified and proficient in court procedures and criminal law is vital in navigating these boundaries. The process involve a pre-complaint to An Garda Síochána, an investigation stage, a prosecution stage, the decision of a jury or judge and the sentencing stage, as well as a consequential appeal stage.
The Bill is an important step in supporting victims of sexual violence through the very complex and gruelling process of a criminal justice trial. It is submitted that a Bill such as this provides very necessary legal and technical support for victims of sexual and gender based violence. Wider reform is, undoubtedly, needed in this area, particularly in the disclosure of sensitive details predating or unrelated to the prosecution, as well as concerning the rights of the victim.
The work and advocacy of supports services, such as RCNI, Rape Crisis Centre, and One in Four, as well as the genuine interest taken by An Garda Síochána and other agencies, in the victims of sexual and gender-based violence must be commended and is vital.
There will always be a need for comprehensive, timely and appropriately communicated information services. The Criminal Justice (Victims of Crime) Act has been helpful in that regard. However, legal aid and representation is distinct and particular to aiding a victim of sexual and gender-based violence through the complexity of the criminal justice process. These cases are highly sensitive, legally complex, unique to the parties and with so much at stake that they demand a specific and bespoke representational role, that generalised information, however helpful, will not compare to.
In the life cycle of a case, from reporting to sentencing, a range of issues arise that demand a legal and qualified perspective, to protect the interests of the victim, and the credibility of the legal process. On the delivery and management of this advice, there are a number of avenues the State could adopt to provide this service. To date, the Legal Aid Board manages a number of ad hoc and specialised schemes in areas such as the Garda station legal advice scheme, and the international protection applicant legal aid scheme, as well as the limited schemes available for witnesses in rape trials. It is likely that the provision of legal advice and aid as proposed under this Bill will require a blending of approaches in other schemes, however models exist and are operational that provide immediate and effective services in other areas that could be adapted for this service. Most important, when designing this scheme continuity of service should be of primary concern to ensure that the victim does not have to repeat her account on a number of occasions to different lawyers and thus increase the risk of retraumatization.
The question has been asked as to whether providing advice might delay criminal proceedings. We do not believe that it would. Criminal proceedings are likely to be more secure where the victim has representation and support and has an understanding of the process what is involved in the process and what they may have to go through in the future. A well-considered scheme, such as those in place by the Legal Aid Board, and that safeguard continuous legal representation, are likely to speed up rather than delay proceedings. Our vision of an appropriate scheme for the victim is one that runs in tandem with the case rather than part of the proceedings. It is important to acknowledge that the accused's rights are no way diminished by improving the victims understanding of the process. A fair trial is crucial. We also wish to assist and aid any victim within legal parameters in respect of the trial process. Our submission to the O’Malley review identified a number of reforms that, hopefully, will be reflected in the final report. These reforms are more likely to reduce delays, and include the introduction of pretrial hearings; specialist training for the Judiciary, An Garda Síochána and other agencies; supports and information to victims throughout the process; the adequate resourcing of the aid and the courts; and case management by the courts.
The Government expressed concern that the scope of the Bill and the challenge of defining the offences. However, current sexual offences legislation, in particular the 2017 Act, as well as the Domestic Violence Act 2018, provide assistance in identifying classes or categories of victims that would benefit from this Bill. Broadly, legal aid is limited to those who are victims of aggravated sexual assault, rape, incest and child defilement. A question that arises, which relates to our values as a society, is whether all people who claim that their personal dignity and privacy and safety has been violated should be afforded legal aid and representation.
We urge the committee to appreciate Ireland's obligations under EU and international law and how this Bill plays an important part in it. We urge it to fully engage with the O'Malley report that is due to be published, hopefully by the end of the year or perhaps by early next year. Resourcing and specialisation are vital building blocks. State agencies, including An Garda Síochána, the Society, Bar Council and NGOs such as the Rape Crises Network all have a part to play. A collaborative approach will be doing the State some service.
To conclude, the victim must be put front and centre, and how their interests are best protected, forms part of that obligation. Ms Breathnach and I look forward to engaging with the committee on any questions it may have.
