General Scheme of the Criminal Justice (Victims of Crime) Bill: Discussion

Apologies have been received from Senator Katherine Zappone. The purpose of this meeting is to have an engagement with some of those who made a written submission to the committee on the general scheme of the criminal justice (victims of crime) Bill. I ask everybody to turn off mobile phones or put them on airplane or silent mode as they interfere with the recording system.

From the Victims' Rights Alliance, we are joined by Ms Maria McDonald and Ms Joan Deane. From SAFE Ireland, we are joined by Ms Caitríona Gleeson. From Rape Crisis Network Ireland, we are joined by Dr. Clíona Saidléar. From the Irish Society for the Prevention of Cruelty to Children, we are joined by Ms Grainia Long and Ms Mary Nicholson. From the Irish Penal Reform Trust, we are joined by Ms Deirdre Malone. From the Children's Rights Alliance, we are joined by Ms Catriona Doherty. From Facing Forward, we are joined by Mr. Niall Counihan and Ms Jacinta De Paor, and from the Dublin Rape Crisis Centre, we are joined by Ms Ellen O'Malley-Dunlop and Ms Shirley Scott. I welcome all the witnesses and thank them for attending. I acknowledge also the people in the public Galley who are here to witness proceedings.

On the format of the meeting, I will invite each organisation to make an opening statement of approximately five minutes, which will be followed by a question-and-answer session with members. Members will be coming and going as other business is taking place in the House. I have to leave at some stage because I have tabled a parliamentary question which is due to be answered in the House but I will return. The Vice Chairman will take over when I leave. Apologies in advance for having to do that but it is out of my control.

Before we begin, I draw the attention of witnesses to the situation regarding privilege. They should note that by virtue of section 17(2)(l) of the Defamation Act 2009, they are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by it to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and witnesses are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or an entity by name or in such a way as to make him, her or it identifiable. Members are reminded that under the rulings of the Chair, they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.

The purpose of the meeting is pre-legislative scrutiny of this proposed legislation. We have had quite a number of these meetings in recent years. It has been an extremely useful and important process where individual citizens and members of various interest groups including non-governmental organisations and others like those the witnesses represent can have an input into legislation before it is even published. Our experience has been that this process has a huge impact on legislation in that when it comes out of the process at the other end, it is much better. It is a completely new reform. I hear people talking about parliamentary reform. This is one of the biggest reforms I have seen in my 19 years here, and Parliament appreciates the witnesses' time, expertise and work they put into this process. I invite Ms McDonald to make a five minute presentation. We are restricting the opening statements to five minutes because the question-and-answer session is very interesting.

Ms Maria McDonald

I thank the committee for giving me the opportunity to speak 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 & Lesbian Equality Network, GLEN, the Immigrant Council of Ireland, Inclusion Ireland, the Irish Council for Civil Liberties, ICCL, the Irish Road Victims Association, the Irish Tourist Assistance Service, One in Four, the Rape Crisis Network Ireland, SAFE Ireland, Support after Homicide and Victim Support at Court. The VRA was formed with one key goal: to ensure the victims’ directive is implemented in Ireland for the benefit of all victims of crime.

As the committee is aware, the scheme of the criminal justice (victims of crime) Bill 2015 endeavours to transpose the EU victims directive. The directive provides for minimum rights, supports and protections regardless of the residential status of the victim. It must be transposed by 16 November 2015. The VRA has welcomed the publication of the Bill. However, it must be strengthened if it is to comply with the directive and in its current format it is in breach of the directive.

Victims have been let down by the criminal justice system, as illustrated by the Guerin report and the Garda Inspectorate report. A survey conducted by VRA members indicated that 72% of victims felt re-victimised by the criminal justice system and, as I will outline, the Bill does not go far enough to prevent re-victimisation. First, head 16 of the Bill does not provide for protection measures required under Article 23(3)(b) of the directive, which states that measures must be made available to avoid unnecessary questioning concerning the victim's private life not related to the criminal offence. This has not been legislated for and is in breach of the directive. The inclusion of this measure is essential to prevent re-victimisation.

As the committee is aware, EU law takes precedence over Irish law. In addition, Irish law must be interpreted in a manner which is compatible with the European Convention on Human Rights. I draw the committee's attention to a recent judgment of that court in the case of Y. v. Slovenia in which it held and made clear that the rights of the victims must be balanced with those of the accused. I will quote from that judgment, which states, "a person’s right to defend himself does not provide for an unlimited right to use any defence [and] the Court considers that "cross-examination should not be used as a means of intimidating or humiliating witnesses".

It is imperative that this issue be legislated for. Failure to do so will result in victims being re-victimised by cross-examination. Consideration should be given to providing victims with legal aid when attempts are being made to cross-examine in such an instance.

Second, the use of intermediaries in court was first permitted under the Criminal Evidence Act 1992, which was introduced 23 years ago. There is no panel of trained intermediaries and there are no guidelines on their use. I understand that they have been used only once in 23 years. The use of intermediaries is also provided for under this legislation to protect victims' rights. It is essential that intermediaries can be used in practice. In order to ensure this, additional guidelines will be required and additional measures will need to be implemented.

Third, information is key if a victim is to be able to access rights under the directive. Head 4 of the Bill provides that certain information must be provided to victims of crime by the Garda. However, according to the directive, this information should be made available at first contact and without unnecessary delay. A significant number of victims never make contact with the Garda but they are still entitled to their rights under the directive. Article 4 of the directive envisages that information should be made available by other bodies, such as the HSE. Head 4 should be extended to the HSE so victims can be provided with information in order that they can access their rights under the directive.

It is all very well providing information to victims of crime but they must be able to understand it. The directive is very clear that there is a right to translation. The Bill, however, does not provide for the right to translation. Head 19(3) states the Minister can make regulations for interpretation and translation. However, according to case law from the Supreme Court, the Minister cannot make regulations when principles and policies concerning the right itself are not included in the legislation. This change must be made to comply with the directive.

The Bill fails to provide for the right to victim support services. Victims have a right to access victim support services, including counselling and shelters, free of charge for a period before, during and after any criminal investigation. It is essential that this right be included in the Bill.

Budget 2016 included a welcome increase of 21% in the Victims of Crime Office funding to €1.5 million. An increase of 21% may appear significant but this amounts to an increase of approximately €300,000 for 50 victim support organisations. That is an extra €6,000 per organisation. VRA member organisations rely on volunteers. For example, Advocates for Victims of Homicide, Support after Homicide and the Irish Road Victims' Association have no paid staff and rely on volunteers. They will struggle to survive in the longer term without paid staff. The Victims of Crime Office does not provide for advocacy services. VRA is one such organisation. We have no funding and we will not be in a position to continue working together without access to funding.

The Garda will be required to facilitate the referral of victims to victim support services under the Bill and the directive. Head 6(6) of the Bill outlines a three-step test for referral. First, the victim must consent to the referral. However, the second and third aspects of the test are subjective in that the Garda will consider whether the victim's ability to consider a support service is limited and whether a victim might benefit from contact with such a service. A victim has a right to access to victim support services under the directive and it should not be limited by whether a garda believes a victim may benefit from victim support services. Consent should be the only requirement.

Head 30 of the Bill provides for grievance procedures. The VRA is of the view that an office of a victims ombudsman or victims commissioner should be established to deal with victims' complaints. A victims ombudsman could form part of an existing ombudsman’s office to reduce costs.

One cannot underestimate the impact that the victims directive and the Bill, if transposed fully, will have on victims of crime in Ireland. The members are the watchdogs of this legislation and I implore them to do as much as possible to ensure it complies with the directive. It will change lives.

I thank Ms McDonald for her very powerful presentation. We will now proceed to Ms Caitríona Gleeson from SAFE Ireland.

Ms Caitríona Gleeson

I thank the committee for the invitation.

SAFE Ireland is a leading social change agency with expertise in responding to and preventing domestic violence. Today, we have released our annual national one-day census, which outlines the daily reality for 475 women and 301 children in Ireland. In just one day, they sought protection from violence and crimes perpetrated against them by someone who is supposed to love and care for them, that is, a parent or partner.

What we know is that domestic violence destroys lives, families and communities. I acknowledge all the victims of domestic violence throughout the country, including, most tragically and most recently, the late Garda Tony Golden, his wife Nicola, his three young children, his family and colleagues, the woman whose life he was trying to protect, her children and her family, all of whom are victims of crime. Again, we extend our condolences to the Garda Commissioner and her colleagues on the loss of Garda Golden as he performed his duties as a guardian of the peace. May he rest in great natural peace.

Domestic violence comprises a cluster of serious crimes, most of which are covered under our existing criminal codes. The crimes we are talking about include murder, attempted murder, assault causing serious harm, assault causing harm, rape, sexual assault, threats to kill, stalking, harassment, child abuse and many others. Our criminal code, however, does not cover coercive control and psychological violence, nor does it treat the "breach of trust" in an intimate relationship as an aggravating factor. In fact, we have a justice system that often minimises the violence because, as we have seen in the media last week, it is regarded as "only a domestic".

When an offender is reported for committing a crime against his intimate partner, there is strong evidence to suggest he has a history of abusing her and possibly her children, but she is unlikely to be asked about this because we do not have systematic risk and needs assessment protocols in place to address domestic violence. We know that since she is reporting the crime, she is at increased risk of greater and further harm from the perpetrator, but often he is sent home after a night in the cell and, at worst, she is sent home and requested to get a barring order or a solicitor, or both. We know that if there are not sufficient and effective protection, support and deterrent measures put in place, the perpetrator is likely to attempt to harm her severely or even kill her or others, at some time in the immediate future or when the opportunity presents itself to him. All this is when the victim has had the opportunity to break free from his control or she has the confidence to disclose the violence to anyone, be it a family member, friend or a first responder whom she trusts to help, protect and support her.

We know from our research that the criminal "incident" - the alleged crime - that the woman, or victim, reports may just have happened, or could be happening when she escapes from his hold to ring 999, or escapes on foot from her house or when a neighbour intervenes. Alternatively, it may have happened in the recent past. Our justice system's current response is to attempt to address the reported incident, which now becomes a crime against the State, and the woman, as a victim, may be called as a potential witness. Our justice system currently demonstrates a very limited understanding of the protective measures and supports that such women need in order to be safe and to prevent retraumatisation in the criminal justice system. A victim of domestic violence is almost always at risk of further crimes from the same person if his opportunities to further abuse are not curtailed.

The women to whom I am referring are those who have reported crimes to the police, or anyone. We know that 79% of women never tell anyone about serious physical or sexual violence committed by a partner. This means eight out of every ten women in Ireland who have been raped or beaten by their partner have not told anyone.

We know that one in three women in Ireland experiences severe psychological violence from an intimate partner. This is approximately 500,000 women living in Ireland in 2015. Women need expert and dedicated support from our criminal justice system, as well as from specialist support services, in order to sustain their formal complaints throughout the process, in addition to maximising their protection from further exposure to criminality from the offender or accused.

Some important issues, already touched upon by Ms Maria McDonald, have been highlighted by us in the opening statement and submission. We very much welcome the Bill but are very clear that, without effective and significant investment, cultural change and training, it will mean nothing on the ground for the realisation of victims' rights and safety.

I thank Ms Gleeson. We will take questions later. I invite Dr. Clíona Saidléar from Rape Crisis Network Ireland to make her contribution.

Deputy Anne Ferris took the Chair.

Dr. Clíona Saidléar

I welcome this opportunity to make a submission to the joint committee. The Rape Crisis Network Ireland, RCNI, has made a number of submissions over a long period. Given that many of the issues we have raised have been taken on board, I propose to address some additional and specific issues.

An increasing number of survivors of sexual violence are reporting to the Garda Síochána. Our statistics for 2014 show that 33% of the survivors in contact with rape crisis centres reported to the Garda. This figure is higher than that recorded among the general population in the Sexual Abuse and Violence In Ireland, SAVI, report, although that survey is out of date. The number of victims who report increases to 48% in the case of adult survivors who have experienced adult sexual abuse only. While these figures show that an increasing number of sexual violence survivors are engaging with the criminal justice system, it should be noted that a significant number remain outside the criminal justice system. This group also has rights under the EU directive.

The RCNI works to ensure all victims of sexual violence, including non-reporting victims, are supported and their needs met, not only by specialist non-governmental organisations but by all relevant State agencies as far as possible. In the case of these victims, identified as a group with "specific protection needs" under Article 22 of the directive, this is an enormous challenge because of the intimate nature of the violence suffered and its devastating effect on its victims.

On the issue of a specialist approach for sexual violence victims, sexual violence survivors have, by definition, suffered trauma, often very severe, which impacts on many aspects of their lives. The criminal justice process must, as far as possible, avoid traumatising these victims again. It must also take account of the difficulties inherent in negotiating the system, for instance, giving statements, waiting for decisions and undergoing rigorous questioning on all aspects of the offence, including the most intimate and personal details, for people who are already traumatised. This must be at the heart of the directive and Bill. Many of the heads already deal with this issue.

On the issue of specialist training, the focus of Article 25 of the directive - head 20 of the general scheme - is on general and specialist training to increase awareness of victims' needs. It is vital that the specialist element of the training of Garda sexual violence investigators is addressed and that this includes training from outside experts. Adequate general training for first responders is also vital. The legislation should include powers to make regulations governing training standards, provision, frequency and so forth, and very importantly, it should include principles based on the directive and related key documents shared across all agencies. A shared vision, one which is founded on common elements in individual training programmes, is the foundation of successful implementation of this legislation.

On evaluation and monitoring of the legislation, an oversight model should be provided for either in the legislation or on a non-statutory basis. It must be sufficiently flexible to react quickly to changing circumstances and sufficiently formal to ensure necessary changes are made quickly. Such a structure should be based on the same shared vision as the training and should work to ensure shared best practice standards on the delivery of every element of victims' rights are created, ideally by informed consensus, and followed.

Speed is another important issue because we know from Rape & Justice in Ireland, a research report published in 2010, that delay is the greatest single factor in attrition from the justice system in terms of sexual violence survivors. The wording "without unnecessary delay" used in the directive should be adopted with regard to providing information, doing individual assessments, informing victims of the carrying out of review and-or grievance procedures, and especially providing special measures during investigation. Delayed responses are very difficult for sexual violence survivors to deal with and contribute significantly to attrition. As such, speed is extremely important.

As Ms McDonald discussed the removal of unnecessary restrictions on directive rights, I will move on to the issue of resources. The Bill should include an obligation on member states to ensure free victim support services, including specialist services, are made available to victims regardless of whether they report formally to the Garda. Without such a clause, a victim's right to access these services cannot be defended through legislation. For this reason, the directive will not have been fully transposed if such provision is not made in the Bill. As the State funds victim support services, including specialist services such as rape crisis centres which are free of charge to victims, there is no practical reason not to include in the legislation a right of access to victim support services. We urge members to consider the inclusion of such a provision.

I thank the joint committee for inviting us before it and I look forward to answering any questions members may have.

I welcome Ms Grainia Long and Ms Mary Nicholson from the Irish Society for the Prevention of Cruelty to Children and invite them to make their presentation.

Ms Grainia Long

The ISPCC is pleased to give evidence on the heads of the criminal justice (victims of crime) Bill. This is important legislation for children as it recognises the unfortunate reality that many children and young people are victims of crime and that they are also holders of rights. It follows the vote of the people in November 2012 to enshrine in the Constitution the protection of children as individual rights holders. The new Article in the Constitution states, "The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights."

The focus of the ISPCC is on three areas in the Bill. The first of these is the need to ensure the legislation endeavours to meet the spirit and intent of the relatively recent change to the Constitution to ensure it meets Ireland's obligations under the United Nations Convention on the Rights of the Child. Second, we will focus on information and support to children, ensuring it is accessible, age-appropriate and specialist. Third, we will focus on some practical measures to ensure culture change - a phrase we have heard used already in the new system - is driven and supported by professional development.

On the first point, as the national child protection and welfare charity, the Irish Society for the Prevention of Cruelty to Children is delighted that the Bill will move from a criminal justice system that is often narrow, minimalist and compliance-led in terms of its approach to the inclusion of children to a system that works proactively to ensure children who are victims of crime have their needs understood as well as met. The key principle under which implementation should be judged is the culture change and shift in mindset in our criminal justice system. This requires that steps are proactively taken to provide information in a child-friendly manner, that interviews are undertaken in a child-centred manner while ensuring standards of evidence gathering are met, and that sufficient resources are provided to have well-trained professional staff in the legal and courts systems and Garda to ensure cases involving children are progressed in a timely manner in order that the child victim has the best possible opportunity of recovering from an ordeal that could otherwise have a profound effect on his or her development.

The ISPCC, therefore, welcomes the preamble to the Bill which includes provision for the best interests of the child to be a primary consideration. We also welcome the recognition that children require special protection measures. However, we concur with the view expressed by the Children's Rights Alliance that the best interests principle should be included in the Bill's provisions rather than in the principle set down in the preamble. This is an important point. There should be no ambiguity regarding the centrality of children or our compliance with the United Nations Convention on the Rights of the Child. If the Bill is to inspire culture change in terms of how we treat children in the criminal justice system, the best interests of the child must be a key driver.

Information and support is a critical area for the ISPCC and, I am sure, other organisations. The UN Human Rights Council obliges states to take steps to ensure the recovery and social integration of child victims. This is very important as it recognises that being the victim of a crime can have a profound psychological impact on children in the immediate and long term. I will refer briefly to a recent example involving a young girl aged 14 years who was the victim of a house robbery during which she was bound, gagged and threatened for a long period while being the witness of violence to family members. The girl returned to school within a few days of her ordeal and life was expected to go back to normal. Although the Garda was involved in the matter, no discussion took place on support for the young girl until she started to struggle at school and her parents became concerned. She could not stay at home alone and lights had to be switched on at bedtime. When she was referred to ISPCC support services, we found during our work with her that while she spoke about the trauma she experienced, she spoke more about her feeling after the experience that she had been, to use her words, left "in limbo". She did not receive any direct information from the Garda about her circumstances and was in effect left to one side after her statement had been taken. She had many questions we could not answer and she believed the people who could answer them did not consider them to be significant or important. This undoubtedly affected her recovery which took longer as a result.

In our experience, the voices and experiences of the child are often lost in an adult-orientated investigation. All child victims should be provided with information that is age appropriate and, what is important, they should be provided with information regarding services which offer support for victims of crime. Such information was not offered in the case I have outlined.

I will speak briefly about other examples of the lack of resources in the criminal justice system. The ISPCC provides therapeutic support services to 500 children and families per annum. Some of these children have been victims of crime and, without exception, our childhood support workers attest to the importance of communicating with children and helping them to understand what has happened. This has a significant impact on a child's ability to cope, recover and build resilience following an ordeal involving crime. Crime has profound effects on a child's mental health, stability and well-being.

Earlier this year, the Ombudsman for Children, on child abuse, referred to the establishment of the National Counselling Service, providing therapeutic services to adults who had been abused in childhood. This consists of a network of service centres located no more than one hour to anyone in need. However, the ombudsman stated that no equivalent free accessible counselling service is available to children affected by abuse. The ISPCC, Irish Society for the Prevention of Cruelty to Children, operates a waiting list for our child and family support services. We have anecdotal evidence that some children wait between six months and one year for a child psychologist.

The Bill’s intention for children is dependent on whether adults working with children also recognise the centrality of a child-centred approach. If children are to receive information in an age-appropriate way, if they are to be interviewed in a child-centred manner and if child-centred communication is to become the norm, then a brand new approach is needed. We listen to 460 contacts annually from children. Our volunteers and staff are trained in building trust and rapport in active listening and engagement techniques. This takes time. Gardaí and legal professionals must step up, which means quite a culture change in how we work with children.

I thank Ms Long. I call on Ms Deirdre Malone of the Irish Penal Reform Trust to make her opening statement.

Ms Deirdre Malone

The Irish Penal Reform Trust’s mission statement calls for respect for the human rights of everyone in the penal system, which includes prisoners, prison staff and also victims - namely, everyone. The trust welcomes the invitation from the Joint Committee on Justice, Defence and Equality to address it on the general scheme of the criminal justice (victims of crime) Bill.

Broadly speaking, the Bill is a positive step forward for the reform of law. I endorse the comments already made on the need for resources, services, investment, training, support, specialist services and the centrality of the best interests of the child. The protection of victims’ rights is not incompatible with or detrimental to the rights of accused or convicted persons, provided that the general principles of equality and non-discrimination, access to justice and due process continue to be supported. The Irish Penal Reform Trust supports the Bill but has a small and limited number of concerns.

Our obligations under the European Convention on Human Rights require that where we legislate for measures that may constitute an interference with the right to privacy, such measures must be properly assessed as to whether they are proportionate and necessary for the prevention of crime or to protect the rights and freedoms of others. The recital of the EU victims directive states that the rights set out therein are without prejudice to the rights of the offender. To this end, our submission highlights selected aspects of the Bill’s general scheme, the first being victim personal statements which falls under head 9.

The inclusion of victim impact statements is already provided for in section 5 of the Criminal Justice Act 1993. We call for the broader sentencing guidelines for guidance on the weight to be attributed to the victim personal statement. We see a limited risk in that the highlighting of certain sentencing principles over others may inadvertently give rise to a failure to consider other equally important sentencing considerations, including proportionality, the circumstances of the offender and the offence, aggravating and mitigating factors and reintegration and rehabilitation. This can be easily remedied with the insertion of the words "in accordance with the ordinary principles of sentencing" in the relevant section. It is also vital to ensure the current express procedural protections set out, namely the exclusion of any prejudicial comment on the offender or comment on the appropriate sentence to be imposed and the service of the statement in advance, should be preserved in future iterations of the legislation.

Our second issue relates to heads 10, 18 and 25, provision of information to victims and families concerning release, escape, etc. The provision of information throughout this process is absolutely essential. The only question we raise is the conflation of information about release and the conflation of information about escape. These are treated as the same in the directive where they clearly have different implications. There is no doubt that where authorities know, or ought to know, of a real risk from an offender, all reasonable steps should be taken to protect any victims from harm, including immediate notification of the fact of release or escape from prison. It would protect both victims and those who have served a sentence if there were a clear protocol in risk assessment and how it would be applied. Where no risk of harm to a victim has been identified, we would urge the committee to consider countervailing factors, including risk of reprisal, impact on rehabilitation and reintegration.

Regarding parole board hearings, the general scheme provides for disclosure of information on related decisions. It is unclear for what purpose such information would be disclosed. If the disclosure were limited to the date, time and outcome of the hearing, that may be proportionate in appropriate cases. In many cases, parole board hearings can include detailed information on medical, psychological and personal matters. Like Canada’s Victims Bill of Rights Act, we would hope the provisions of this Bill will not interfere with the discretion which may be exercised by any person or body authorised to release an offender into the community. This is an important provision which would clarify the appropriate parameters of victim input and would honour the point that successful reintegration after imprisonment prevents recidivism and, ultimately, assists victims.

We welcome the important provision on restorative justice schemes in the Bill. The definition of "victim" in head 2 is clear. Between 2011 and 2014, over 3,500 assaults took place in our prisons. There are also incidents in child detention schools and other secure facilities such as nursing homes. How will the directive be effectively implemented to protect all victims, even those we may not immediately think of as victims? There is no doubt that within our secure care facilities and other places of detention, specific attention will need to be paid to the introduction of measures to prevent secondary victimisation, retaliation or intimidation and avoid the creation of conditions of solitary confinement or prolonged isolation, which can be used as a measure of protection but can cause irreversible damage to those subject to such conditions.

I very much welcome the inclusion of IPRT at this hearing. In the end, we all want the same, namely justice, equality, fairness, punishment that is meaningful and proportionate, and safer communities.

I thank Ms Malone. I invite Ms Catriona Doherty from the Children’s Rights Alliance to make her opening statement.

Ms Catriona Doherty

The Children’s Rights Alliance unites over 100 organisations working together to make Ireland one of the best places in the world to be a child. The alliance welcomes the publication of the general scheme of the criminal justice (victims of crime) Bill 2015 and the opportunity to be consulted today. We commend the work of the Minister for Justice and Equality and her departmental officials in producing this important draft legislation.

The scheme of the Bill has many positives, including the presumption that all child victims need special protection measures, as well as the inclusion of a victim personal statement to be taken into account when sentencing the offender. The proposals it contains are particularly important in that they place the rights of victims on a statutory footing for the first time. We believe, however, that for the legislation to be effective, the heads must be amended to strengthen the protections for children to bring it in line with the rights afforded by the EU victims directive. Significantly, the Bill fails to address the requirement under Article 8 of the directive for the mandatory provision of confidential victim support services free of charge both before, during and, for an appropriate time, after criminal proceedings.

In applying the directive, children’s best interests must be of primary consideration in accordance with the UN Convention on the Rights of the Child. While the best interest principle is included in the preamble and in head 17, they are not sufficient to comply with the UN Convention on the Rights of the Child or Article 1.2 of the directive. It must be incorporated in its own right.

In 2006, the UN Committee on the Rights of the Child called on the State to ensure that victims of abuse and neglect have access to counselling and assistance with physical recovery and social reintegration. In that regard, the committee will examine Ireland again in January. Supports for child victims of abuse, neglect, murder and other crimes are often inadequate. For example, there is no access to free counselling in all parts of Ireland for child victims affected by murder. Yesterday, the only counselling service for child victims of sexual abuse in Ireland, the Children at Risk in Ireland centre, CARI, had a waiting list of 40 in Dublin and 50 in Limerick.

The startling reality is that this means that child victims of sexual abuse will have to wait between one year and 18 months for therapy and support and by this time next year some of those children will still be on that waiting list. For victims of sexual assault under 14 years, there is limited access to specialist services, with just one State service, located in Galway. Victims over 14 years can access specialist integrated sexual assault treatment units, however these are unavailable in most parts of Ireland.

It is in this context that it is of grave concern to the Children's Rights Alliance that the general scheme fails to transpose Article 8 of the directive, which provides that the victim shall have access to confidential victim support services. There is nothing discretionary in Article 8 as it states it "shall". This is a significant omission as the EU directive envisages that member states shall ensure that there is free access. This omission is incompatible with Article 39 of the UNCRC.

The committee should ensure that any support services put in place should include specific victim support services which should be provided for children and their parent or guardian to meet them to prepare for court, upon arrival at court and to wait with them during the trial to improve participation and recovery.

Turning to the voice of the child, overall head 9 gives practical realisation to Article 12 of the UNCRC and the inclusion of a victim personal statement which shall be taken into account when determining the sentence to be imposed on a person for an offence. However, the proposed legislation fails to take into account the needs of children making the statement which is directly linked to the failure to transpose Article 8 relating to victim support services. Children making the statement should have access to support services in circumstances where revisiting the crime could be traumatic for the child and may impact on his or her emotional recovery, and appropriate professional support may be required.

Turning to special protection measures, in all judicial proceedings children should be protected from harm, including intimidation and secondary victimisation. In that regard, head 16, which set outs special measures during a trial, is to be welcomed. Head 17 is also to be welcomed.

The time is just up.

Ms Catriona Doherty

I will close briefly.

In regard to the provision of information, we would welcome the provision of information to victims. However, there is no requirement within the general scheme that it must be provided at an age-appropriate level. The provision of information in age appropriate language and in plain English is essential to ensure child victims can engage with the process.

Victims do not have a choice. Those 90 children on that waiting list do not have a choice today. It is the committee's choice to make a difference. I am happy to answer any questions.

I now welcome Mr. Niall Counihan and Ms Jacinta De Paor from Facing Forward.

Mr. Niall Counihan

Facing Forward welcomes the opportunity to speak at this oral hearing on the general scheme of the criminal justice (victims of crime) Bill. Facing Forward is a voluntary organisation without paid staff, established in 2005. It is comprised of practitioners with expertise in restorative processes, mediation, conflict resolution, youth offending, criminal justice, law and trauma counselling. We promote the use of restorative approaches in all areas of the criminal justice system, including with the most serious types of crime, taking into account the needs of all those impacted by the harm resulting from crime.

Facing Forward commends the Government's commitment to introduce draft primary legislation to implement this directive establishing minimum standards on the rights, support and protection of victims of crime. We are focusing on the restorative justice provisions of the Bill which relate to our specific area of interest. We consider it important that the rights and protections for victims contained in this Bill would be comprehensive and extend to all existing and future restorative justice programmes. We have a number of queries about aspects of the general scheme as follows.

On head 2, interpretation, in its definition of a "victim", the general scheme contains a phrase not present in the EU victims directive, "perpetrated against him or her". The addition of the underlined phrase appears to have the effect of excluding secondary victims or those who witness a crime, even if they experience harm and trauma as a result, potentially limiting their rights as victims. International experience has shown that restorative justice has benefits for all those who suffer harm as a result of a particular crime, including those who witness serious crime. Facing Forward proposes that this phrase be removed in line with the EU victims directive.

The current text of head 2 does not define "restorative justice". In order to clarify the meaning of head 28 of the general scheme of the Bill, Facing Forward proposes that the definition contained in Article 2 (d) of the directive be included in head 2, as outlined in the presentation.

On head 4, information to be provided to victims, Article 4 of the EU victims directive requires that all victims be given information on "the available restorative justice services". This requirement is currently omitted from the draft Bill. Facing Forward proposes that this clause be included in head 4 of the general scheme.

On head 8, information to be provided on request to a victim where a complaint has been made, head 8 gives a victim who has requested such information the right to be informed "if it is proposed to deal with an alleged offender in relation to the offence alleged in the complaint otherwise than by prosecution before a court". Head 13 excludes decisions relating to juvenile diversion and adult caution schemes operated by the Garda Síochána. We think that should be looked at for possible inclusion in the Bill.

Head 13 currently states that victims do not need to be informed about decisions on admitting those responsible for crimes to a diversion programme under Part 4 of the Children Act 2001 and under the Garda Síochána adult caution scheme. Facing Forward understands Article 12 of the directive to apply to all restorative justice programmes and work in the jurisdiction without exception.

On head 20, training, the provision of training in this head is currently limited to the staff of statutory agencies listed in the schedule. This provision does not cover the staff of non-governmental projects enabled by these statutory agencies. Article 25 of the EU victims directive supports member states to encourage initiatives enabling those providing restorative justice services to receive "adequate training to a level appropriate to their contact with victims". Facing Forward, therefore, proposes that the training provision needs to apply to staff and volunteers of non-governmental organisations working with victims, including through restorative justice processes.

As currently drafted, head 28 applies only "Where any agency or body listed in the Schedule to this Bill provides or enables any restorative justice service, [other than those provided for in the Children Act 2001 (as amended)],". The schedule currently does not include the probation service, under whose supervision and funding both restorative justice services and restorative justice in the community currently operate. Facing Forward proposes that all agencies currently "enabling" restorative justice programmes be included in the schedule to the general scheme and that some wording be found to include future new developments in restorative justice service provision. Facing Forward also proposes that the safeguards in head 28 also apply to the restorative work done by the Garda Síochána juvenile diversion programme under the Children Act 2001 in order to offer victims of juvenile crime the same rights with regard to restorative justice service provision as victims of other crime.

Article 12 of the EU victims directive states, "Member States shall facilitate the referral of cases, as appropriate to restorative justice services, including through the establishment of procedures or guidelines on the conditions for such referral". Facing Forward proposes that this or similar wording be included in the draft Bill to consolidate the existing referral system for restorative justice work.

Deputy David Stanton resumed the Chair.

Mr. Counihan's time is up at this stage.

Mr. Niall Counihan

Finally, Facing Forward proposes that the probation service be included in the schedule to the general scheme, as do voluntary and independent restorative services. Any victim of crime is under no obligation or compulsion, through this general scheme or any restorative process, to participate in restorative justice processes.

Finally, the Dublin Rape Crisis Centre is represented by Ms Ellen O'Malley-Dunlop and Ms Shirley Scott.

Ms Ellen O'Malley-Dunlop

I thank the committee for the opportunity to present this morning.

It is crucial to combat and prevent crime, and it is equally important to properly support and protect individuals who are victims of crime in society and who go on to engage with the criminal justice system. Some years ago, the Dublin Rape Crisis Centre and the school of law at Trinity College co-hosted a conference called, "Rape Law - Victims on Trial?", at which, in her opening address, former President Mary McAleese stated that when a victim follows through with their case in the criminal justice system and the perpetrator is found guilty and given the appropriate sentence, that victim has done all of society a service.

The DRCC’s submission to the committee is informed by the experiences of the men and women who access front-line services and also by the research and policy work delivered by the organisation. Dr. Saidléar mentioned the SAVI report, the most comprehensive piece of research ever done on attitudes towards and beliefs about sexual violence in Ireland. We need a second SAVI report as it is out of date. The report told us that 3% of Irish men and 10% of Irish women were victims of rape, the second most serious crime in our Statute Book. Translated into figures, that is 200,000 women and 60,000 men, a phenomenal number for a very serious crime.

Few would deny the far too often devastating effects sexual violence has on those against whom it is perpetrated. Victims of this crime may be affected in many ways, including physically, emotionally, psychologically and financially. They enter the criminal justice system by chance rather than by choice. Indeed, their participation in and co-operation with the system is essential to the prosecution of perpetrators and to law enforcement's efforts to control sexual crimes. Without the victims, it would not be possible to determine the facts of the case or administer justice.

The DRCC broadly welcomes the general scheme of the Criminal Justice (Victims of Crime) Bill 2015. We look forward to its implementation and we hope it will be a force for change, not only for victims of sexual offences but for all victims of crime who engage with the criminal justice system. As all my colleagues have said, it will not be possible to implement this Bill unless the resources are made available. Far too often, we suffer from implementation deficit.

There are a number of key elements which are of particular significance to those who avail of the services of rape crisis centres, which we would like to highlight. For example, head 6 of the Bill requires gardaí to individually assess all victims of crime in order to ascertain whether they need to access the special protection measures set out in head 16 of the Bill. In order to ensure a reliable, consistent and transparent system of assessment, we believe specialist training must be given to those gardaí who engage in this undertaking. The DRCC would like to see specific reference made to victims of crime having the right to access victim support services, as my colleagues have said, similar to the provisions set out in articles 8 and 9 of the EU victims’ rights directive. The DRCC would also like to see specific reference in head 16 of the Bill to the type of testimonial aids that are available to victims. We would suggest that there be a positive obligation on prosecutors to request those special measures pre-trial.

The need for both general and specific training is paramount for all practitioners and professionals who come into contact with victims of crime across the board, and specifically for those who have contact with victims of sexual crimes. We would like to see this reflected in head 20 of the Bill. In particular, training is required to challenge and educate everyone in the criminal justice system on the adverse attitudes towards, myths about and perceptions of victims of sexual crimes which abide in society. This will increase awareness and will go a long way to ensuring that justice is delivered.

We appreciate this opportunity to bring to the committee's attention the aspects of the Bill which we endorse and welcome and those aspects we would like to see changed and-or reinforced.

I thank everybody for their presentations and for staying within the time. It is most helpful. I also thank the Vice Chairman, Deputy Anne Ferris, for standing in for me and I apologise for having to go to the Dáil Chamber for a few minutes.

I thank and commend all of the groups for their submissions. People regularly say to us that victims are often completely forgotten about when we are dealing with the issue of crime.

Ms Doherty and Ms Long touched on the issue of child victims of crime and Ms Long talked about one particular incident. There are horrific consequences for young children who witness or are victims of crime. My question to the Children's Rights Alliance and the ISPCC is what are the two key things that can help them? I do not want to hear about the legislation, information or details of the progression of the case in the legislation.

Ms Grainia Long

The first key practical thing will be putting the best interests of the child at the centre of the Bill. That will make a big difference. As an organisation, the ISPCC will need to use the Bill as a lever for change. We want to require organisations that work with children through the criminal justice system to demonstrate that they have prioritised the best interests of children when undertaking interviews of children and in taking account of the views of children. There is a reason the UN Convention states that key phrase really clearly. Putting that in the main text of the Bill rather than just in the preamble could be a game changer. That is the lever we could then use.

I would echo Ms O'Malley-Dunlop's point on implementation. The Bill will stand or fall on just how seriously we take it. If we do not take it seriously, it will just be another Bill with the best of intentions.

We listen to 460,000 children a year. It still shocks me that we have to listen to that many children and there are many more who do not feel they can call. We need to change how we think about children. This is the first piece of really serious legislation for children following enactment of the children's referendum and the change to the Constitution. It could be something that looks and feels very different from anything that has gone before. That means providing for listening to and treating children differently. We have set out some of the changes we need to make and hopefully I have given two practical changes which the committee could consider.

Ms Catriona Doherty

I thank Deputy McGrath for his question. I would reiterate those points. The best interests principle, as it stands in the preamble, is not strong enough. It has to be incorporated into the Bill itself in order for the legislation to be compliant with the UN Convention on the Rights of the Child, UNCRC.

The second point, which I mentioned in my address, concerns the support services. Ireland was already criticised on this issue in 2006 and we are going to be examined again this coming January. At present, we are not compliant with article 39 of the UNCRC. Everything else in the Bill will fall down if we cannot give those children support services. It is all well and good giving them information and listening to their voices but if they do not have support services, it can become meaningless in some ways.

I know the Deputy asked for two points, but the last aspect I would highlight is training. Training is of vital importance and has to take place throughout Ireland. The Bill does not just apply to children in Dublin. It applies to children in Donegal, Cork and everywhere. In respect of support services, recital 37 of the directive states that the support services have to be provided within a sufficient geographical region. That means they have to be extended throughout Ireland. We cannot just have support services in one county. I cannot emphasise that enough, along with the training issue.

I work as a barrister and am in court regularly, particularly on the northern circuit. In Letterkenny courthouse, there are no facilities for victims. There are no separate rooms; everybody is in the same place. There are no support services for children who are in court as victims. Support services and training must be extended throughout the island.

Ms Maria McDonald

Children are very often indirect victims of crime. In an instance of domestic violence where the child witnesses the assault but is not actually abused himself or herself, the EU Commission has made it very clear that Ireland's current definition of "victim" is in breach of the directive. There needs to be a change in order to provide indirect victims of crime with the right to victim support services.

In that context, currently under this Bill, children who would be indirect victims and witness domestic abuse, would not be entitled to victim support services. Therefore it is important that this amendment is made. I think Facing Forward has referred to that.

The second issue is that the directive is clear that children are automatically entitled to special protection measures. One of those rights is that all interviews of children should be video-recorded. The difficulty concerns when they can actually be used in evidence. The Bill is unclear as to when that video recording can be used.

Also, as soon as a child turns 18 they are not entitled to those special protection measures any more. As we all know, however, they could be incredibly vulnerable. The Bill does not state that there is an obligation on the gardaí to engage in individual assessments to ascertain whether they have special protection needs. I think therefore that this is hugely important.

Ms Mary Nicholson

Can I just echo that in terms of children who are witnesses? We have come across that so many times, that they just feel completely lost in the process. Whatever about access to supports, which is obviously essential, they are not even told about the processes that are happening. The child that Ms Long spoke about earlier was a witness. She was not the main victim, as such, so her statement was taken and that was it. It is a case of ensuring that they also have the information available to them, even if they are not the complainant.

So the proposal of the indirect victim is something that is coming up here.

Ms Caitríona Gleeson

To get into the complexity of that, in addition, when one is looking at a victim of domestic violence, child and parent, the need to protect them from further crime is critical. Therefore, all of the measures have to be interlinked because that child is at further risk. That is quite critical.

I think Ms McDonald kicked it off there concerning the indirect victims of crime such as domestic violence, for example. The direct victim is usually the mother or partner, but the indirect victims are often forgotten in the debate. These are the young children who turn up crying in the classrooms on a Monday or Tuesday. When they are teenagers they often turn to drugs and suffer massive low self-esteem. These are the kids who often end up in Mountjoy or self-harming or abusing alcohol. They are often forgotten about. As part of the debate on this legislation we need to focus on those kids. I hate using the term "indirect victims" because I have seen some of those victims. By the way, I have seen some of those people who came from abused families abusing their own mothers when they became teenagers. We have a major problem with those young people and we need to support them. I emphasise that we need the practical supports for those young people.

Ms Ellen O'Malley-Dunlop

As well as the indirect victims being further traumatised, we must also ensure that re-victimisation does not happen. We believe that victims who are traumatised as a consequence of sexual violence also need to have the special supports that are available.

Mr. Niall Counihan

I totally agree with Deputy Finian McGrath as regards the words "indirect victim". In Facing Forward we use the words "secondary victim".

Does Ms Deane want to come in on that?

Ms Joan Deane

It is not just domestic violence that creates indirect victims. I represent victims of homicide. What we all forget when there is a homicide in the family are the other children who have not been physically harmed. I am speaking about actual cases where children would have been very young when an older sibling was murdered. When those children come into their teenage years, just like Deputy Finian McGrath said, horrendous problems arise for the family, yet there is no support. I know one family in particular whose son is in dire straits. He could not get access to a public counselling service, so the family has to pay for it.

The idea of using the term "secondary victim" and the ripple effect of crime is coming across.

Ms Grainia Long

Too many children are falling through the cracks. We see too many children daily who only arrive at our door because maybe a social worker has, in an interview with a parent or another family member, triggered something in the child and they have spotted something. A very foresightful social worker will refer a child to us. For every one of those children there are many others who never get that opportunity. Sometimes we cannot help the child because we have a waiting list. Only recently we had a child who witnessed sexual violence in the home and only came to us by dint of two or three of the right people being in the right place. On the face of it, this Bill could formalise institutionally the rights of children to access services. Many children would be forever grateful if it is formalised in legislation because there are too many gaps.

Dr. Clíona Saidléar

Can I reiterate the piece on services? The Children's Rights Alliance, CRA, has outlined a lot of the gaps there. I wish to re-emphasise exactly how thin on the ground services are for children. When we first started collecting data one thing shocked us. When we looked at rape crisis centres collectively, which are essentially adult services, it turned out that we were the biggest provider of services to children, yet we are the providers of adult services. They came to us because there was nowhere else to go. Every rape crisis centre sees children from 14 years upwards and occasionally younger than that. The CARI Foundation sees children from the start, principally the younger age category. CARI is seriously under-funded, as all services are in the NGO sector in this area. There is a huge gap. The Children's Rights Alliance mentioned the sexual assault treatment units, but we only have one for the under 14s which is based in Galway. We need national coverage in terms of children's sexual assault treatment units.

I wish to draw the committee's attention to the fact that we need services that are focused on older children, including teenagers. There is a need to have something specific there because what they experience in terms of sexual violence, risk and perpetration is very specific, and we need that special service.

I am conscious that there is a Report Stage in the Dáil and we could be called for votes at any time, so I ask people to be as brief as possible.

I thank all the witnesses for their presentations. I apologise that I had to go to the Seanad Chamber and will have to go back at 11.30 a.m. for Seanad business. I note that, overall, everyone is broadly welcoming of the Bill. Almost everyone has mentioned resourcing as a huge issue of implementation. Going through the heads of the Bill, it struck me it is vital that sufficient resources are provided in particular to the gardaí, and to a slightly lesser extent to the DPP and the Courts Service. That is because so many of the new protections and supports for victims will require quite intensive intervention, particularly by the gardaí. I note that a lot of contributors have touched on that.

I have a couple of specific questions. One concerns what Ms Maria McDonald from the Victims Rights Alliance raised on the re-victimisation and cross-examination of the victim. I am interested to know what extra could be in this Bill. I am looking at heads 16 and 26 which will provide additional protections. We have been taking Second Stage of the Sexual Offences Bill in the Seanad, containing new provisions on personal cross-examination of victims, which are very welcome.

Following the work done by the Dublin Rape Crisis Centre in 2001, we have a provision on legal representation where a victim in a sex offence case is being cross-examined about personal sexual history. I am just wondering what else can be done.

Ms Maria McDonald

As I have indicated on the issue, it has been 23 years but intermediaries have only been used once. I spoke to a senior prosecutor about this. The issue is not that the legislation is not there but that they cannot really use it because they do not have guidelines for their use. Therefore the judge really does not understand what intermediaries are and the prosecutors do not understand when they should be used. There is a real fear around them breaching the rights of the accused person when they are used.

I have been informed of a way by which that could be prevented. I did not get permission to say who it was, so I do not want to name anyone. In effect, it is important that the legislation clearly outlines when intermediaries can be used by a judge to ensure that the accused's rights are not going to be breached.

Can Ms McDonald explain what she means by an intermediary? I did not quite follow that.

Ms Maria McDonald

Yes. What happens is if one gets a vulnerable child or somebody who has a disability or has a mental health issue, one knows what barristers are like when they cross-examine people and someone has a difficulty understanding. What would happen is that the barrister would ask the intermediary the question and then the intermediary would ask the child or the individual that question, but in a manner where it is very clear. It takes out all of the-----

I am sorry but is Ms McDonald saying that the intermediary procedures should extend beyond children and vulnerable adults?

Ms Maria McDonald

Ironically, in this Bill it extends beyond that to people who have special protection measures. The issue, however, is that they have only been used once and the difficulty is that there is no clarity on when they should be used. It states that children and people who have mental health issues should be entitled to use them but it does not clarify when the court should allow their use otherwise. From a defence perspective, there are concerns that this might water down the right to cross-examination.

Sexual offences legislation is going through the Dáil at the moment and there are overlaps there.

I have another question, which was raised by the RCNI and on which everyone will have a view. It concerns delays in trials and in criminal proceedings in general, including pre-trial. Is there a specific way this Bill should address this?

Dr. Clíona Saidléar

The directive uses the phrase "without unnecessary delay" and that needs to be integrated across this legislation. It is missing in some key areas. It is important to include details as to when access to information is given and when rights are activated right at the very start. The Chairman referred to the Criminal Law (Sexual Offences) Bill. At the moment the legislation restricts the right of the accused to personally cross-examine the victim in cases involving children and we are very clear that this should apply to all ages in sexual violence cases. There is no reason why it should not.

I spoke to the Minister about that.

Ms Maria McDonald

I spoke to a very senior High Court judge on the issue of delays and she drew attention to cases where the trial date is set and the victim believes the case will go on for two weeks or so but the prosecution and the defence come in at the last minute and, suddenly, it does not happen. Both the prosecution and the defence would have known in advance that it would not happen but the victim is only told at the last minute. During the past week I became aware of a case where people travelled from abroad for a case which was delayed. There should be guidelines and something in legislation to ensure pre-trial procedures are completed well in advance. There should be a pre-trial hearing two months in advance to ascertain whether or not a case will or will not happen.

Ms Joan Deane

There are guidelines for this.

Ms Maria McDonald

Yes, but they are not being followed.

Ms Jacinta De Paor

It may not be appropriate for me to come in on this point. I wanted to refer to the issue of secondary victims. In Article 2, the definition of a victim does not include the words "him or her" whereas in head 2 of our Bill it mentions "an offence perpetrated against him or her" which excludes the secondary victims. That is very important.

The other definition that needs to be in there is on restorative justice. It appears under definitions but we will get to that in a moment.

I am conscious that this has to be transposed next month.

Ms Maria McDonald

It is not going to be transposed by then.

What is Ms McDonald's best guess as to when it will be transposed?

Ms Maria McDonald

We hope it will be before Christmas but it will definitely not be done by 6 November.

I was wondering about that.

Ms Ellen O'Malley-Dunlop

We do have to implement it. It is an EU directive and it has to be implemented by 16 November.

This committee has done a lot of work on domestic and sexual violence, generally dealing with adults. We have not done a lot of work relating to children because the Joint Committee on Health and Children deals with that area. It is all very interesting but, as Ms McDonald said, it is an EU directive and it is vital we ensure our law is tight enough and does not fall short of the directive. I agree with Mr. Counihan about secondary victims. I am sure secondary victims do not feel they are indirect victims but that they are victims, even though they may not have been abused themselves. They feel it emotionally and psychologically.

I was interested to hear the piece on restorative justice. The Chairman and I have done a lot of work on this over the past few years, mainly relating to perpetrators rather than victims. It was good to hear that point referred to in the presentation. I intend to go into all the statements again and to go through the Bill head by head to see what can be done. I have a Private Members' Bill on sentencing in the lottery system and I hope it gets chosen for debate in the next few months. It deals with the anomaly in sentencing with regard to damage to a person vis-à-vis damage to a property. The sentence for damage to a person's property can be far greater than that for damage to a person himself or herself. For example, if a person picked up a bottle and hit somebody over the head with it he or she could get a bigger sentence for damaging the bottle than for injuring the other person.

I do not have a question as those I had have been answered and the witnesses have given a lot of clarification. I thank them very much.

Does Senator Mulcahy have a question?

I have a question. Are we comfortable that the method of recording the initial crime is what we need in respect of the effect on families? Support groups have come in and received mixed information on this point. The problem starts with the first responders, who do not fill out a standard template. They do not even have a template and have not received training in this area. The PULSE system is not sufficient and I have told the Garda Commissioner that the DASH system which applies in Northern Ireland is what we need here. What are the witnesses' views on that? They pick up people who have fallen out of the system but would it be better if it was done properly in the beginning and they had a profile of the different persons they were going to get and their circumstances from a correctly completed, standard template?

Ms Caitríona Gleeson

It is a very good question. We are in the middle of research at the moment into risk assessment practice and investigation of crime. It is clear that we do not have any protocols for the first responders, be they gardaí or social workers, with regard to domestic violence involving adults and children. Given the risk of further crime and the increased danger when someone first comes forward to disclose information, the focus of the responder needs to be on the protection and safety of the victim, the mother or the child, and on the recording of the evidence presented. The research demonstrates that plenty of evidence can be collected without our being reliant on the primary witness, namely the victim, but this is not happening.

We were at the Garda crime victims' forum on Monday and there were very positive soundings from the Garda Commissioner on the progress they are making in this area. SAFE Ireland is very happy to link up with the new protective unit within the Garda Síochána but it is a very complex area. I would be loth to ask a garda to go to a scene and fill out a five-page form but I would love the garda to have an automatic checklist and to be equipped with the information already on the system and the history of previous incidents. I cannot begin to describe how, on the ground, the basics are not being taken care of. The policy in the Garda Síochána does not explicitly mention risk assessment but such an approach is implied and it is not being applied systematically across the country. We only have small pockets of good practice.

We are also loth to focus just on gardaí. There is no linked-up system. We have been working with one of our European partners in Austria, where there is an automatic statutory requirement for a garda to refer a case to the support service when he or she attends a scene. The support service is then obliged to contact the victim and the victim can then opt in or out.

These are basic things but we do not have them in place.

Ms Gleeson is correct that there is a lot that could be done easily with little cost.

Ms Maria McDonald

If a person is not defined as a victim, he or she is not entitled to his or her rights under the directive. CSO figures published in June and July last indicate the Garda Síochána is not categorising crimes correctly. We are aware of many instances of crime against people who are blind not being defined as crime because nobody could collaborate the evidence. Currently, in most instances, road traffic collision victims are not identified as victims of crime. I will give an example. When a road traffic collision occurs between two cars and one person is seriously injured as a result, the garda who arrives at the scene could record that incident as dangerous driving or drink driving causing death, which means a person would not be provided with information because he or she may not be deemed to be a victim in the circumstances. We need to change the ethos and methodology used by the Garda in identifying whether a person is a victim. The presumption must be that a person is a victim such that he or she can be provided with the information to allow him or her access his or her rights under the directive.

I am sure Ms McDonald is not suggesting gardaí are not doing their job but that it is the procedures in place that are at fault.

Ms Maria McDonald

They are not identifying whether a person has been the victim of a crime until maybe a year later when it is finally determined that a crime occurred. However, that is too late for the individual who needs help from day one.

Procedures need to be updated in that regard.

Ms Ellen O'Malley-Dunlop

During the crime forum we brought that particular issue to the attention of the Garda. The committee will be aware from the Garda Inspectorate report that many cases involving sexual violence, in respect of which there was plenty of evidence that a crime had been committed, were downgraded such that the record indicated no crime had been committed. The directive has to be applied across the country from Donegal to Dingle, from Galway to Dublin and everywhere in between. It was stated that gardaí do not have a checklist but they need to have one. They must know what they are required to do and how important it is that the victim be retained in the system and given all necessary information. Victims do not know what to ask for. Gardaí must provide the relevant information to the victim, whether that person is a victim of sexual crime, burglary or whatever.

Ms Maria McDonald

The directive states that all gardaí are to be required to assess victims of crime individually by way of the nature of the crime, the victim's personal circumstances and so on. The difficulty that arises in the context of this Bill is how gardaí will do this consistently. Ms Gleeson mentioned risk assessment. In fairness to the Garda Síochána, it has changed its information technology systems such that cases in respect of which there is a risk of re-victimisation or domestic abuse are now flagged, but that is not enough. We need to ensure every garda conducts the individual assessment in the exact same way such that no victim falls through the loop and does not get the protection measures he or she needs.

Ms Caitríona Gleeson

In regard to the checklist, it should include ten points which all gardaí know off by heart and should not have to refer to a form to check. There is also a need for focus on prevention of re-traumatisation. During our research on the criminal journey of the women who are going into the system, we learned that 90% of serious crimes, not including homicide and assisted homicide, are being dealt with in the District Court. This goes back to the point about sentencing. In one case which involved extreme violence resulting in a woman being incredibly badly beaten and in respect of which there were many witnesses, the sentence was a €1,500 fine and a period of probation. The system as a whole needs to be examined. The protection measures in the court process are critical to the victim being able to stay in the process. That is very important.

The committee in one of its reports recommended the establishment of a criminal justice inspectorate, similar to that which exists in Northern Ireland, to review the criminal justice system as a whole. That has not yet happened. It is an issue we might revisit.

Ms Catriona Doherty

On the point regarding the initial risk assessment form, I cannot emphasise enough the importance of training in this regard. Putting procedures in place is great but if people are not trained by a particular deadline, that process becomes meaningless. Head 20 is particularly important because it specifies that gardaí should be trained, but nowhere in that head is a timeframe referred to within which that training should take place. There is need for incorporation of a deadline in this regard.

Head 7 is welcome in that it provides that all victims should receive an acknowledgement of complaint. Currently a person may believe he or she has made a complaint only to find out two weeks later following contact with the Garda Síochána regarding an update on that complaint that there is no record of that complaint having been made. It is in the context of rural stations where resources may be lacking that the training and acknowledgement is especially important.

Ms Mary Nicholson

On the training issue, specialised training in relation to children is important. Another important issue is joint interviews. I know joint interviews take place in cases involving sexual abuse. It is important there would also be a joint interview in cases involving child protection such that no child would have to go through the process multiple times.

Ms Maria McDonald

On the point made by Ms Doherty, a person is entitled to confirmation of the making of a complaint but a person who does not speak English has no right to that complaint being translated.

Ms Caitríona Gleeson

As stated recently by the Garda Commissioner, the issue of confirmation or acknowledgement of a complaint is not yet provided for in legislation because this Bill has not yet been enacted. However, the Garda Síochána has put in place a new victims office specifically relating to domestic violence. As it is not appropriate for a victim of domestic violence to receive in the post a letter thanking them for having made a statement, this new system ensures there is face-to-face contact with the woman in a safe way. We do not want to stop the Garda doing that.

Would any of the witnesses like to comment on the rights of victims when a decision is made not to prosecute?

Ms Ellen O'Malley-Dunlop

We are very happy with that because victims often will not come forward and report if they are not to be made aware of whether a case is to progress. We are also happy that the Office of the Director of Public Prosecutions has introduced training for prosecutors.

Dr. Clíona Saidléar

We would like the wording to be tightened up a little. Currently, the wording is to the effect that victims will be made aware, on request, of the reasons for the decision not to prosecute. We believe victims must first be aware they can ask for that information.

Ms Jacinta De Paor

Article 25 of the EU directive states that member states shall ensure that officials likely to come into contact with victims, such as police officers and court staff, must receive specialist training. Given the use of the word "shall" in the directive, we must comply with it.

There is a lot of work to be done.

Ms Jacinta De Paor

However, the directive also states "such as police officers and court staff". I would like to see that extended to any person who is in contact with a victim.

Ms Catriona Doherty

On the extension of the training, it is important it is extended to the coroner's service, the staff members of which have a great deal of contact with the victims of homicide but do not have specific training in that regard. The provision of information is vital and could be extended to the HSE. While respecting the independence of the legal profession, I think some level of training, whether optional or not, must be considered.

My final question is probably for a sociologist rather than a psychologist or whatever. Most of witnesses present today work with victims of crime and so on. Do they get the sense that society is becoming uglier, more violent, what I call "un-personal", and generally less caring?

Ms Deirdre Malone

Debates such as we are having understandably tend to focus on the most grave offending. In terms of the focus on sexual offences, homicide and rape, it is crucial that the needs of the victims of those crimes, which have devastating lifelong impacts, are met. The overwhelming majority of crime is not at the most serious end. This Bill will govern all crimes. What is needed is more clarity and better data around the recording of crime and whether particular responses to crime are effective and, if not, what can be done to improve them.

Mr. Niall Counihan

The Chairman mentioned "un-personal".

Restorative justice brings the person-to-person aspect back into it, with victims speaking to offenders. At the moment everything is going in the direction of technology, which is taking some of the personal aspect from it. Restorative justice is strictly about humanity.

Ms Caitríona Gleeson

To answer the member's question, while I am not a sociologist, we do not know the half of it. We know little of the horrors in homes in Ireland. As a country, we have grown up in recent years. I commend this committee on raising domestic violence issues. SAFE Ireland and our members have been working for 40 years, although I have not worked quite that long. We do not know the half of it, but we are starting to lift the veil. Once we lift the veil and start to get into the heart of violence in the home, we have the potential to heal violence across our society because it is from the home that we learn.

Dr. Clíona Saidléar

As a social scientist, I would say there is a feeling that somehow society is becoming more brutal, particularly regarding sexual violence and the culture and attitude around sexual activity and behaviour. Looking more broadly, however, I do not believe it is possible to stand over that because what we are seeing is difference rather than more. It just shows up in different ways, in different places with different levels of silence and silence in different places. The members of this committee create legislation. Law is social engineering, but the work we do in perfecting the justice system, perfecting the legal response, perfecting how the State vindicates survivors and holds perpetrators to account must be backed up and will be frustrated if we do not invest in primary prevention. We need to engage in a very conscious way based on evidence. We have evidence and we need to invest in primary prevention because this work will be frustrated if we do not.

Ms Jacinta De Paor

I am speaking not as a social scientist, but as a psychologist. I do not think society is getting uglier. I think reportage is increasing. We are lifting the veil as Ms Gleeson has said. We are hearing more about what is happening. It was happening behind closed doors.

That is interesting.

Ms Grainia Long

I echo that point. The more we can teach children to talk about the issues going on for them and the more likely they are to call us and tell us, the better. While it will sometimes feel as if we are hearing more, that is actually a good thing. I would rather for us to be victims of our own success on this one.

We spoke a lot today about physical crime, so to speak. We have a considerable amount of law to write on cyber and online crime. That is a major issue, especially for children and young people. I look forward to being back in this room with one of my colleagues to talk at length with the committee on this. We are completely unaware of the laws we need on this particular issue. So much of the Bill is about culture change that I wonder whether a review might be in order. After two years the Bill will only have worked if implementation has happened and we have changed the mindset and culture. In areas such as training and whether services are fully funded, it would be good to review this in two years.

Ms Ellen O'Malley-Dunlop

I referred to the SAVI report and the extent of sexual violence. We know that more people are coming forward and reporting the crime. Until we have a second SAVI report and a proper comparison, we will not know whether there is an escalation in the prevalence or more people coming forward. It is really important to have the research to follow up.

Ms Joan Deane

We have an obligation to deal with crime. As Deputy Anne Ferris said, our sentencing laws are very questionable at the moment and we need to look at how we respond to serious crime. I know it is not part of the directive but it can be worked on in tandem with the directive. We need to have an appropriate response to serious crime and at the moment we do not.

And training for the judges.

Ms Joan Deane

Absolutely.

We could probably spend the rest of the week discussing these issues. I thank the witnesses for giving of their time and their expert input. We will send the submissions, the transcript and some of our comments to the Minister post haste. There is a slight matter of a general election down the road, but obviously other committees will be formed after the general election and it is to be hoped they will carry on the work the witnesses and members have started.

The joint committee went into private session at 11.35 a.m. and adjourned at 11.50 a.m. until 9.30 a.m. on Wednesday, 4 November 2015.