Amendments Nos. 1 and 50 are related and may be discussed together by agreement.
Criminal Procedure Bill 2009: Committee Stage.
Section 1 agreed to.
SECTION 2.
Government amendment No.1:
In page 6, between lines 2 and 3, to insert the following:
""Act of 1967" means the Criminal Procedure Act 1967;".
Amendment No. 50 contains my substantive proposals for reform while amendment No. 1 is a consequential amendment. I will therefore focus on the later amendment No. 50.
Amendment No. 50 relates to the Criminal Procedure Act 1967 and consists of two parts. The first part contains the definition of "prosecutor" in section 4 of the 1967 Act. It proposes to amend that section by deleting the words "or on behalf or with the consent of," when defining the role of the Attorney General as prosecutor. Section 4(1)(a) defines prosecutor for the purposes of Part IA, that is, the procedures relating to indictable offences. The Director of Public Prosecutions is the prosecutor. Section 4(1)(b) defines prosecutor in relation to Part II of the 1967 Act, that is, where the accused pleads guilty in the District Court to an indictable offence and Part III which deals with remand. In these instances the prosecutor may be the Director of Public Prosecutions, a person acting at the suit of the DPP or a person authorised by law to prosecute an offence. However, section 4(2) defines prosecutor in relation to Parts IA, II and III as the Attorney General in cases where the institution or continuation of proceedings requires the Attorney General’s consent.
The Office of the Director of Public Prosecutions has expressed a concern that section 4(2) may be interpreted to mean that every reference to prosecutor in Parts IA and Parts II and III of the 1967 Act is to be taken as referring to the Attorney General in any case coming under those Parts, including cases where the Attorney General's role is confined to consenting to the institution and continuation of the prosecution rather than to conducting it. This could mean that if an accused is charged with an offence under legislation that stipulates that the consent of the Attorney General is required before a prosecution is instituted, then it is the Attorney General and not the Director of Public Prosecutions who must serve the book of evidence, consent to a return for trial and carry out all other prosecution functions assigned to the prosecutor under Part IA.
The Office of the Director of Public Prosecutions is concerned only to ensure clarity as to its own functions, especially for the purposes of Part IA of the 1967 Act. The clarification now proposed does not alter the requirement for the Attorney General's consent to the institution or continuation of certain proceedings. The amendment will put beyond doubt that after the Attorney General has given his consent, in cases where consent is required by statute, it is for the DPP to operate thereafter as the prosecutor of the case.
The second part of this amendment relates to the time period for service of the book of evidence, more particularly the issue is about when the time period begins. Currently, section 4B(1) of the 1967 Act stipulates that it must be served within 42 days of the person's first appearance in the District Court. The amendment changes that period to it being 42 days from the date on which it is determined that the case is to be tried on indictment. As many Senators will be aware, a book of evidence is required only when a case is tried on indictment. Experience suggests that in a great many cases, the 42-day period, as it is currently applied, will have expired before the question of whether the case is to be tried on indictment or summarily will have been determined. This creates a significant burden on the Office of the Director of Public Prosecutions and creates inefficiencies in the system. For example, in some cases, a book of evidence will not have been prepared as the DPP intends to proceed on a summary basis but the District Court may, as it is entitled, refuse jurisdiction and send the case forward for trial on indictment.
It would be much more efficient if the timeline for service of the book of evidence ran from the day on which it was determined that a book of evidence was actually required. While applications for extensions to the time period under section 4B(3) will continue to a factor in particular cases, this amendment should reduce the number of applications for those cases where it was initially unclear whether they would be sent forward for trial on indictment.
Amendment No. 1 is consequential on amendment No. 50. It adds a definition of the Act of 1967 to section 2 of the Bill. It defines the reference to the Act of 1967 as referring to the Criminal Procedure Act 1967. I recommend these amendments to the House as they will significantly promote the more efficient use of resources.
I wish to take this opportunity to speak on the interpretation section to flag the Government's intention to bring forward amendments on Report Stage to the definition of "broadcast" in sections 2 and 4 to update the Bill to reflect the definition in the Broadcasting Act 2009 which has been enacted since the publication of this Bill. Section 2 of the Broadcasting Act 2009 provides for the following definition of broadcast:
"[B]roadcast" means the transmission, relaying or distribution by electronic communications network of communications, sounds, signs, visual images or signals, intended for direct reception by the general public whether such communications, sounds, signs, visual images or signals are actually received or not[.]
The House will note the reference to wireless telegraphy, cable or the Internet, contained in the definition that currently appears in this Bill under consideration has been replaced by a reference to electronic communications network. I suggest this is a preferable way of proceeding because the Broadcasting Act is now enacted and our proposal for the definition of broadcast reflects what is already in the Broadcasting Act 2009.
I note that amendment No. 1 is consequential on amendment No. 50 which is clearly the substantive amendment. I am concerned about the practical impact of this proposed amendment and I wish to reserve my position on it for Report Stage. I ask for the opportunity to take soundings on it among other practitioners. I speak as someone who is a practising barrister and has worked a good deal in the District Court, albeit I do not tend to practise there any more and have not done so for some years. However, I am conscious that the Minister's stated rationale for introducing this amendment is to reduce the burden on the Office of the Director of Public Prosecutions and to make the running of the system more efficient. If I am correct, the effect of the amendment would be quite serious on the defence in terms of prolonging quite significantly the period of time before the book of evidence would be served upon them. Case law from the European Court of Human Rights and our own jurisprudence suggests there should be a presumption in favour of more information and greater disclosure to the defence in advance. This concentrates the mind of all concerned in any criminal case and it is the way the law has been going. I do not see it as a positive development that the prosecution would be given longer to prepare the book of evidence. The Minister stated that often the 42 day period is not observed and I am aware of this. However, it keeps the pressure on the DPP's office and it gives district judges a modicum of control over the process. I am concerned this amendment would adversely affect the rights of the accused and give the district judge less control over the time period within which the prosecution must produce the book of evidence. A better approach would be to keep the current provision and allow the flexibility the district judges use in practice in terms of prolonging the period within which the book of evidence may be served.
I reserve the right to speak further and to call for a division against this measure on Report Stage. It is unfortunate such a significant provision was introduced by way of amendment and that we did not have the opportunity to comment on it on Second Stage. I made a very full speech on this Bill on Second Stage in June, as Members will be aware, and I examined the Bill in great detail at that point. However, this new amendment to the Act of 1967 makes a significant change to District Court practice and I alert other colleagues to it.
What Senator Bacik has just said illustrates the value of this House and the value we place upon the kind of professional expertise we have here. I say as much without prejudice, as they say in legal circles, to the argument. It is important to recognise that the amendment which occurs first in the order is not the really significant one. It is amendment No. 50 that comes toward the end of the Bill that matters. Given the presumption of innocence, there should be at least an equal balance between the rights of the defendant and the rights of the prosecution. If the delicacy of this balance is altered, as has been suggested, by this amendment in favour of the Office of the Director of Public Prosecutions, a State office, and against an individual, it would be regrettable. Senator Bacik is very wise to stay her hand and seek further consultation on this matter.
I refer to the Minister's comments in which he flagged the definition of broadcasting. This attracted my attention because I wondered if it was sufficiently clear in view of the extraordinary pace of advances in broadcasting. For example, the use of the term "wireless telegraphy" is nowadays regarded as charmingly antique. We have been overcome by a whole series of patterns of broadcasting. It is very appropriate and I welcome the fact the Minister has updated that definition.
The Minister referred to definitions and there is also a definition of a "children detention school". Perhaps there could be some debate on the appropriateness of some of these places in light of what we know now. I do not believe it should simply appear as a definition. We should examine whether it is appropriate to send children to these places, but that is just bye the bye. I welcome what Senator Bacik said.
I have no difficulty with the amendment and since it will be raised on Report Stage we can revert to it. In principle, I have no difficulty with it or with the Bill in general. I hope that in the course of the dialogue we can secure some refinement of the legislation. The Bill responds to several proposals made in the balancing of the criminal law system in favour of the victims. It is to be welcomed and I will address the various amendments in that frame of mind.
I thank the Senators. Senator Norris will note that I value very much the input into legislation from the Seanad and I welcome the expertise brought to this Bill, not only from the political parties but also from the Independents, and not only in this area but in other areas as well.
The amendment was prompted largely by the DPP's office on the basis that until 1999 there were no time limits within which it was required to serve a book of evidence. This changed following the Criminal Justice Act 1999 which included a statutory requirement for a time limit. District Court rules dating from 1967 had certain requirements but these were only rules and they were replaced in 1997 by an updated District Court rule in this respect. In 1999 a statutory requirement was introduced. The DPP's office made a very strong case to the effect that because of the requirement for a book of evidence on indictment it was only logical that only when a decision is made to send forward a defendant on indictment should the time limit kick in, rather than when a defendant first appears in the District Court. To a certain extent the DPP's office could be up against a time line, especially if adjournments took place at the initial stage before a decision had been made on whether it was a minor offence.
This matter was examined by a working group on the jurisdiction of the courts, chaired by Mr. Justice Fennelly. It reported in 2003 and examined this issue. The working group proposed a 90 day time limit from the first appearance in court. We believe the proposal of a 42 day limit following the decision to send forward a defendant is neater because the requirement for a book of evidence only kicks in once the court has decided to try the offence on indictment. We believe it creates a more certain period and lessens the burden on the DPP's office on the preparation of evidence. Sometimes it might prepare a book of evidence when it is not required.
I thank the Minister for his full response. I am conscious Mr. Justice Fennelly's report maintained the principle that the time should run from the first appearance, albeit extending the time somewhat to reflect the greater reality. However, the principle espoused by the working group was important. My concern is that principle would be eroded by the proposed amendment and it would adversely impact on the accused. I am conscious that time limits were introduced in 1999 through statute. However, to give the full picture, the reason they were introduced is that in the same Act powers to detain an accused or to adjourn an accused on remand in custody for longer periods were increased. When I began practising in the District Court there were more rigid time rules for the period during which an accused could be detained in custody between adjournment dates to the court. As I recall, the 1999 changes to insert time limits served as a balance to the increased time an accused was likely to spend in custody between court appearances.
How will the district judge make the determination that the facts do not constitute a minor offence if such a determination is to be made before any book of evidence is served? I reserve my position on this matter. Like Senator Regan, I welcomed many aspects of this Bill on Second Stage, especially Part 2 which deals with the impact of crimes on the victim and I wish to put that on the record again. I support many of the principles in the Bill but I am concerned this late amendment was inserted and that it makes a substantial change to criminal procedure in the District Court. It is an area of practice often overlooked but it is where the majority of criminal case are dealt with. We must be very careful about making such sweeping changes without being conscious of their full impact. While I will not seek a division on this point now, the Minister should ask again, albeit perhaps not just the Office of the Director of Public Prosecutions. For example, the Criminal Bar Association is made up of people who both defend and prosecute. I ask that the views of this organisation or those of the Irish Council for Civil Liberties also be sought in this regard. Although I have not had time to do this, I certainly intend to do so before Report Stage to ascertain what impact they consider this amendment is likely to have in practice on accused persons before the District Court. I am concerned there may be unforeseen practical consequences to this measure. Changing the point at which the time runs is quite significant. As I understand it, Mr. Justice Fennelly's report did not propose that major change; it simply extended the time.
I have nothing further to add, other than to note that in respect of Mr. Justice Fennelly's report, I am starting with the baseline of when the defendant first appeared in the District Court. My Department believes and the Office of the Director of Public Prosecutions concurs strongly that the baseline should be when the decision is made to send forward for trial on indictment. It is only then that the requirement for a book of evidence to be produced kicks in. As the Senator is aware, a District Court judge decides on whether a case can be dealt with in summary fashion or on indictment based on the facts put before him or her in his or her court. Obviously, he or she must then make a judgment about sending someone forward.
To a large extent, the reason the 90-day period was proposed by the working group was based on the assumption that the baseline would be the first appearance. However, in a highly complex case 90 days may not be sufficient, perhaps because the District Court did not make a determination on the issue until well into the 90-day period. Consequently, retaining the starting time for the production of the book of evidence as it is at present, that is, 42 days from the date when the decision is made to send forward for trial is best.
As for representations, the Department obviously will hear representations from Senators, in particular, on the views of outside groups. Nevertheless, this is the Department's best view on the issue, having discussed it with those at the coalface in this respect, that is, with the Office of the Director of Public Prosecutions, in particular, as well as the Courts Service.
I wish to make a further brief comment. As I noted, I certainly intend to consult those at the coalface in representing people before the District Court and ask that the Minister's office does the same. While I am conscious that the Office of the Director of Public Prosecutions is at the coalface, it only represents the prosecution and Members must also be conscious of the right of the defence. Moreover, as a final point, it strikes me that there also is a victims' rights aspects to this issue. Forty-two days is a significant period for victims to wait and if the consequence of this section is to prolong the pre-trial period generally, it will have a highly adverse impact on victims. Any research I have undertaken on victims' rights on any of the literature suggests delays in the process cause concern to victims. The Minister also is anxious to deal with this issue. Members must be cautious about proceeding with such a significant change without considering all the consequences and consulting other groups beyond the Director of Public Prosecutions alone. I certainly intend to do so before Report Stage.
Amendment agreed to.
Section 2, as amended, agreed to.
Section 3 agreed to.
NEW SECTIONS.
Amendments Nos. 3 to 7, inclusive, are related to amendment No. 2. Therefore, amendments Nos. 2 to 7, inclusive, may be discussed together, by agreement. Is that agreed? Agreed.
I move amendment No. 2:
In page 6, before section 4, but in Part 1, to insert the following new section:
"PART 2
TREATMENT OF VICTIMS
4.—(1) Any person who deals with a victim (for example, a member of the judiciary, lawyer, member of court staff, member of an Garda Síochána or other official) shall—
(a) treat the victim with courtesy and compassion, and
(b) respect the victim’s dignity and privacy, save that nothing contained herein shall in any way infringe the constitutional rights of an alleged offender or of an offender.
(2) A victim has the right to be informed as fully as possible—
(a) of his or her rights and of the remedies available to the victim,
(b) of his or her role in the criminal justice process and with regard to criminal proceedings and of the progress made in investigating his or her complaint and in the processing of any criminal prosecution arising from such complaint,
(c) of the availability of health services and social services or other appropriate assistance or prevention services through which he or she may obtain such medical, psychological, social care or help as he or she may require.
(3) A victim has the right, insofar as resources are available—
(a) to such medical, psychological and social care or help as he or she may require and to such other assistance or services capable of meeting his or her needs for shelter and support or for referral to other services better suited to provide him or her with assistance,
(b) to protection against intimidation and retaliation.
(4) A victim has a duty to cooperate, to such extent as is possible, with an Garda Síochána and any other relevant law enforcement authority.".
These amendments relate to how the victims of crime are treated in the context of criminal procedures. I appreciate that a considerable amount of work has been done by the Commission for the Support of Victims of Crime and the Department in this area. However, I wish to read one excerpt from the commission's framework document that refers to the position of the victims of crime. It states:
In the case of charges being brought, they have to cope with a complex system where minimum recognition is afforded to the victim . . . Further trauma is suffered where no perpetrator is identified or sufficient evidence does not exist to bring a charge. The degree of trauma is not measured by the seriousness of the crime e.g. an elderly person who has been burgled often will suffer life-changing effects.
Moreover, in the case of more serious crime, the impact is even more traumatic.
I appreciate that this legislation is supposed to address these issues and that it relies on the report and recommendations of the balance in the criminal law review group on this subject. However, as for what informs the amendments I have tabled, I again refer to the Commission for the Support of Victims of Crime's annual report of 2008. It refers to a meeting in September 2008 under the heading, Justice for Victims Initiative. It states, "The meeting also provided an opportunity for the Minister to outline his Justice for Victims Initiative to those who attended and to assure them that a legislative package was being progressed and was on course to be published in the spring of 2009". I believe this Bill to be the aforementioned package of measures. The amendments I have tabled complement the package before Members.
I will revert to the basis of all this, the European Council framework decision of 15 March 2001 on the standing of victims in criminal proceedings. The European Communities treaties recognise that the position of the victim must be taken into account in order to have mutual recognition of judgments and procedures in the area of criminal law. The framework decision states, among other things:
The conclusions of the European Council meeting in Tampere in ... October 1999 stipulate that minimum standards should be drawn up on the protection of victims of crimes, in particular on crime victims' access to justice and on their right to compensation for damages, including legal costs. In addition, national programmes should be set up to finance measures, public and non-governmental, for assistance to and protection of victims ... Member States should approximate their laws and regulations.
I refer to article 2 of the framework decision which is germane to my first amendment which proposes the insertion of a new section 4. Article 2 states:
Each Member State shall ensure that victims have a real and appropriate role in its criminal legal system. It shall continue to make every effort to ensure that victims are treated with due respect for the dignity of the individual during proceedings and shall recognise the rights and legitimate interests of victims with particular reference to criminal proceedings.
My proposed section 4 states:
Any person who deals with a victim (for example, a member of the judiciary, lawyer, member of court staff, member of an Garda Síochána or other official) shall—
(a) treat the victim with courtesy and compassion, and
(b) respect the victim’s dignity and privacy.
It goes on to propose that the victim has a right to be informed as far as possible of his or her rights, his or her role in the criminal justice process and the availability of health and social services, etc.
This really is a declaratory statement implementing, in effect, the framework decision. It is important to have a statutory basis to the recognition given to the victims of crime and their role in the criminal process. With the passing of the Lisbon treaty, such framework decisions invariably will be transposed into directives. While the framework decision is binding on a member state, as is the directive, there will be an enforcement procedure, whereby the European Commission will ensure legislation adopted at European level is reflected in national legislation. There is a direct link and it is important that there be a statutory basis for the principles set out in the framework decision.
Amendment No. 3 reads: "A victim or member of a victim's immediate family who has welfare, counselling, medical or legal needs arising from the commission of an offence or as a result of anti-social behaviour shall have access to services that are responsive to those needs insofar as resources are available". There is a right to be assisted; therefore, there is a duty and an obligation on us, arising not only from our legal requirements but also now from European Union obligations. These provisions should be set out in legislation and followed through.
Amendment No. 6 concerns information for the victim. I appreciate that the victims of crime office provides valuable information in a generic sense for those who are victims of crime. They can access the general framework or scheme of how the system works but that is a far cry from providing such information for individual victims of crime. On a point of information, we must consider data protection, whether people want to be informed and whether the Garda Síochána could inform support services that a person has been the victim of crime without the victim requesting it or sanctioning the use of that information. This matter must be addressed, as acknowledged by the European framework decision. The amendment on the right to receive information is based on Article 4 of the framework decision:
Each Member State shall ensure that victims in particular have access, as from their first contact with law enforcement agencies, by any means it deems appropriate and as far as possible in languages commonly understood, to information of relevance for the protection of their interests. Such information shall be at least as follows:
(a) the type of services or organisations to which they can turn for support;
(b) the type of support which they can obtain;
(c) where and how they can report an offence . . .
Article 4 also includes the provision that "Each Member State shall ensure that victims who have expressed a wish to this effect are kept informed of the outcome of their complaint". A procedure must be established whereby the information can be provided for the victim of crime and this information can be passed on to support services. Perhaps a form could be drafted for the victim to sign. The amendment mirrors the broad principles set out in the European framework decision.
Amendment No. 6 suggests the victim should be provided with the name and telephone number of the member of the Garda Síochána who has the primary responsibility to investigate the reported offence. This is basic information that enables the person to feel he or she is not being entirely ignored in the process of prosecution of a criminal offence that has affected the person. By setting out in statute the type of information that should be provided and the procedures for so doing, we facilitate everyone, even though much good work is being done by the Garda Síochána and other agencies.
Keeping the victim informed is referred to in section 7(2) which concerns the preliminary hearing, any defending hearing set down for sentencing, any hearings of appeal and to review the sentence. Again, there is a requirement under the EU framework decision that the victim be kept informed. Section 3 of Article 4 states: "Member States shall take the necessary measures to ensure that, at least in cases where there might be danger to the victims, when the person prosecuted or sentenced for an offence is released, a decision may be taken to notify the victim if necessary". Section 2 of Article 4 refers to keeping the victim informed of relevant factors enabling them, in the event of prosecution, to know the conduct of the criminal proceedings regarding the person prosecuted for offences concerning them, except in exceptional cases where the proper handling of the case may be adversely affected, and to be informed of the court sentence. I do not see these matters addressed in the Bill, yet it was intended that it would address the rights of victims in this regard.
Amendment No. 6 deals with limits on duties to give information under sections 6 and 7 where the giving of the information would be likely to prejudice the maintenance of law and order. This is a reflection of the framework decision. The amendment provides that the victim may nominate someone to receive the information. In dealing with these amendments I have a question for the Minister on dealing with the proposal made by the Balance in the Criminal Law Review Group, suggesting that in a case where the injured party had died or had become incapacitated such that he or she was unable to give evidence, where the defence attacked the character of the injured party, that shield could be dropped and the accused would be liable to cross-examination as to his or her character without leave of the court. Does the Minister intend to address this particular recommendation? Perhaps we can return to the matter on Report Stage or at a later time.
I welcome the spirit of these amendments because Senator Regan is attempting to secure the rights of victims. There is a strong public feeling that victims are not treated with the degree of sympathy they could be and that they do not have access to the redress they ought to have. There is a feeling that the balance may be slightly skewed. I am not sure whether that is true but certainly one must have compassion towards people who are clearly the victims of crime, and sometimes the victims of very brutal crimes. This morning, I heard the Minister on the radio discussing the appalling bank robbery where people were held. The victims included small and vulnerable children who may be traumatised for a very long time. There is certainly a very considerable public appetite for something to be done in the interests of victims.
Another point is that, without wishing to undermine the status of citizens in this regard, they are alleged victims until the crime has been adjudicated upon. In almost all cases they will turn out to be victims and as citizens they should be treated appropriately anyway. I remember a case from recent years where a man was convicted on the evidence of a young woman. It turned out that the background was a dispute between two families about land. She put her oar in to victimise the person accused of rape. He was convicted and a number of years later she surfaced from abroad and acknowledged that it was a tissue of lies. She was and should have been seen as an alleged victim up to the point where the man was convicted. In this case, the man was convicted incorrectly. I am not impugning the status of all victims. I am stating that their victimhood is only confirmed by the passing of sentence by the court. Until that point they are assumed or alleged victims.
The same is true of defendants. They are accused until they are convicted. Because there is a small number of cases in which the accusation will prove to be unfounded or malicious, it seems that the first part of the section proposed in Amendment No. 2 should apply with equal force to the accused. I mean those paragraphs which state:
4.—(1) Any person who deals with a victim (for example, a member of the judiciary, lawyer, member of court staff, member of an Garda Síochána or other official) shall—
(a) treat the victim with courtesy and compassion, and
(b) respect the victim’s dignity and privacy, save that nothing contained herein shall in any way infringe the constitutional rights of an alleged offender or of an offender[.]
Those essential courtesies and compassion of respect for dignity and privacy should also extend to those accused, especially because they have not been convicted.
Although I do not have any qualification whatever in law I remember attending the District Court on a number of occasions in the remote past when judges felt free to engage — and I hope they no longer do — in mocking and taunting people accused of specific crimes. I was in court when reference was made to their sexual organs, sexual propensities and sexual practices to howls of amusement from the body of the court. That is not appropriate and I would like to think that every citizen should be treated with the minimum of courtesy and compassion, particularly until he or she is convicted. I do not see why courtesy and compassion should cease in an allegedly Christian state even when a person is convicted.
Amendment No. 2 contains a weakening and classic let-out which is inevitable in the current circumstances in the phrase, "insofar as resources are available". That would be very well used to get out of any obligation to provide assistance to victims through psychological and social care. They would be told that the resources are not available and they cannot have them.
Amendment No. 7 is interesting and important because people who are alleged or assumed victims of crime are very anxious to know the process of the investigation and to know that the investigation is continuing. In the previous session, Senator Hannigan raised on the Adjournment and brought to the attention of the Minister a case in which a victim could get no information and the matter was endlessly delayed to the point where a prosecution became almost unsustainable. This was brought to the attention of the court. The name of the investigating garda and a telephone access number are completely reasonable requests to be included in the amendment.
With regard to the outline of the investigation and prosecution process, Senator Regan has included some learned comments and my concern is that information might be divulged whose divulgence is dangerous to the investigation. One cannot rely entirely on discretion. If one gives out sensitive information to victims it may be that their immediate instinct is to run next door and tell a neighbour and disclose it all. It may also be that an investigation is following certain angles that are not only delicate but also dead ends, and endless gossip and malicious talk might be fostered by this. Therefore, I am concerned about access to this type of information.
It is essential to give information on whether an accused is granted bail because experience shows us that many criminals re-offend immediately on release, especially in larceny. Frequently they re-offend on bail. I am on the central area joint policing committee and at our most recent session approximately one month ago, the very efficient police officers presented us with statistics on crime which they then took back because they were confidential. I do not think I am breaking confidentiality when I state that in the central area of Dublin there was a huge spike in certain types of crime, particularly burglaries and robberies of or from cars. The superintendent or inspector — I am not sure which — present at the meeting explained this as being directly related to releases from Mountjoy, that the Garda knew immediately a particular person was back in operation and that they just had to look for him. This is very practical information.
After I make my final point I will read the Minister's reply if he deigns to deal with the points I have raised because I must attend another meeting. If it is not buried somewhere I have not noticed, Senator Regan should include in the list the date of release. This is very important for victims and relatives who had a close family member murdered. I know of a number of instances reported in the public media where relatives were not told an offender was released. I know we are not supposed to put names on the record so I will not do so but I am sure the Minister will know the case to which I refer where a man convicted of manslaughter was released and murdered somebody else. A shock is given to relatives when they are not told a release is coming up. They can prepare themselves emotionally if they are made aware of it. Senator Regan may have included this and I might have missed it.
It is further on.
In that case, it is covered and I will be happy to support Senator Regan's amendment because this is also very important.
I wish to speak generally in support of Senator Regan's amendments. These are very useful and very welcome. They are in keeping with the needs of victims. It is clear from any research done that what victims and those who complain that they were victims of crime require is to be kept informed of the progress of an investigation, of any developments in the investigation and pre-trial process and of anything that occurs following the trial. In the Irish criminal justice system we have been very much wanting compared with the system in continental European countries where victims are entitled to much greater rights within the criminal justice process. According to research I carried out in 1998 with colleagues at Trinity College into victims of rape, which was published by the Dublin Rape Crisis Centre, rape complainants' experience of the pre-trial and trial process was greatly improved if they had good communications with the garda involved in investigating the case, and they found they could understand the procedure much better, which greatly enhanced their overall satisfaction with the process.
Tribute must be paid to the Office of the Director of Public Prosecutions which, in recent years, has tried to do much more to keep victims informed where serious crimes have occurred, in particular, the families of victims of homicide. The office now has a specific liaison person assigned to each family where there is a charge of murder or manslaughter. I also pay tribute to the work of Advic, the organisation that supports families of victims of homicide, which has done a great deal of work with the Office of the Director of Public Prosecutions. It must also be said that in most cases that are not at such a serious level, individual investigating gardaí perform an important function in keeping victims and complainants informed of the progress of an investigation in an informal way. Much of what Senator Regan has outlined, particularly in his proposed amendment No. 5, is already the case, and many gardaí are already doing a great deal of such work. It is important, however, as Senator Regan pointed out, to formalise this to support victims' rights.
Senator Regan is dealing with data release in a separate amendment — No. 18, I believe — but there is clearly a lack of knowledge currently. There are a couple of points on which the amendments could be improved. For example, with regard to informing a victim of his or her right to choose legal aid and assistance where a complaint is made of a serious sexual crime, this is contained in the Civil Legal Aid Act 1995. Indeed, victims have a right to separate legal representation under the Sex Offenders Act 2001 where the defence makes an application to produce evidence of prior sexual history. That amendment was introduced as a direct result of our study into the experience of rape victims. I have tabled another amendment to this Bill, No. 17, which provides for enhanced potential right of representation for victims of crime.
It is important to point out that there are already many voluntary groups working in this area. Not only are gardaí doing a great deal of work in informing and communicating with victims of crime, albeit on a relatively informal basis, but there is a large number of voluntary victim support groups around the country which provide court accompaniment services to victims. Senator Norris has spoken about the proviso "insofar as resources are available" in Senator Regan's amendments. In the current climate, that goes without saying. However, the Minister does have a commitment to continue financial support for those voluntary groups through the Commission for the Support of Victims of Crime, and the court accompaniment provision is regarded as important.
I recently conducted research for the commission, with colleagues in Trinity College, which considered the experiences of local victim support groups and one issue raised, which is relevant to Senator Regan's amendment No. 4, is that the groups would prefer to make contact themselves with persons who make complaints to the Garda, but that this had given rise to data protection difficulties. While gardaí are now giving information to victims about locally accessible voluntary agencies, to use Senator Regan's words, it is not currently possible for a voluntary agency to contact a victim because the garda cannot provide the victim's name and address. It occurs to me — Senator Regan may have dealt with this — that it would be possible to provide a form in a Garda station that victims could sign giving permission to the Garda to give their names and addresses to the support groups directly.
The Office of the Director of Public Prosecutions provides a great deal of information through leaflets, which are offered in Garda stations to people who make complaints about crimes — the first stage of interaction with the criminal justice process. We must commend that. However, it is also important that we put all these positive developments for victims in the form of a statutory requirement that victims be informed about the progress of court proceedings and that they be kept informed throughout the pre-trial, trial and post-trial periods.
There is one thing on which I disagree with Senator Regan. I note he does not confine the references in his amendments to criminal offences, but extends them to anti-social behaviour. Given the lack of operative effectiveness of anti-social behaviour orders and the fact that this is an area of law that is not quite criminal — these are civil orders, the breach of which may give rise to criminal proceedings — I am not sure it is appropriate to include the references to anti-social behaviour that crop up throughout the Senator's amendments. Otherwise, these are important amendments, which are in keeping with the spirit of the Bill and of the Minister's stated desire to improve the situation for victims of crime.
I thank Senators for their contributions, and express my thanks to Senator Regan for his remarks on the first amendments that were moved on the basis of the spirit in which we are trying to improve this Bill. To answer the Senator on the issue of character evidence and what he referred to as dropping the shield, Government amendment No. 47 deals with this by inserting the following into the principal Act: "the person has personally or by the person's advocate asked questions of any witness for the purpose of making, or the conduct of the defence is such as to involve, imputations on the character of a person in respect of whom the offence was alleged to have been committed...". Thus, there are amendments clearing up some of the anomalies in that respect and also following on from the 1924 Act with regard to the evidence that can be adduced in criminal trials.
I acknowledge Senator Bacik's comments and am of the view that we should improve assistance to victims of crime as much as possible and contribute to raising awareness about their difficulties. I share that commitment, but the question is how to go about it. That is where we differ. The issue is why Government would adopt a certain attitude, as opposed to people in the Opposition, but we have common cause in trying to assist victims as much as possible.
While this Bill has a role with regard to victims, we already have provisions in our legislation for victim impact statements, intimidation of witnesses, in camera hearings and the non-identification of some victims in the media, and the giving of evidence by television link in the case of young people and other vulnerable victims. There is a place for legislation, but in certain instances legislating for something can be too prescriptive and could lead to a lawyer’s playground. I suggest that some of the proposed amendments would lead to a considerable onus being put in the prosecution and on the presiding judge to decide whether a victim’s statutory right to be treated with courtesy and compassion had been complied with. I would hazard that such provisions would cause severe difficulty in a well-fought prosecution. Legislation is not the best tool in all circumstances; it can be overly prescriptive or become outdated or rigid as time passes and circumstances change. If we put something in legislation, would we get time in the Oireachtas to change it? Such provisions, for example those which provide that the victim should be treated with courtesy and compassion, could lead to endless legal disputes about interpretation in particular cases.
A charter is more flexible in terms of taking account of individual circumstances while giving strong directions in the majority of cases. As Senator Bacik has acknowledged, gardaí do excellent work in liaising with victims. In respect of most major crimes, liaison officers are assigned to work with victims. The Garda has developed a victims' charter and officer training includes a module on how to treat victims. Gardaí stick rigidly to the guidelines set out in the victims' charter and face disciplinary proceedings if they fail to do so.
My Department has produced a victims' charter through the victims of crime office which I established in conjunction with the Commission for the Support of Victims of Crime. The charter is written in plain rather than legal language so victims can understand it. I favour a victims' charter as the primary means for ensuring best practice in services to victims. I asked the commission to review the existing charter with a view to improving its provisions and hope to be in a position to publish the revised charter in the first quarter of 2010.
The new Part 2 proposed in amendment No. 2 provides for a generic right to courtesy, compassion and respect from any person dealing with a victim. While this is a commendable aspiration, I question the feasibility of legislating such virtuous behaviours into people. The amendment is equally ambitious in regard to the right to information, with Part 3 setting out in great detail the information that must be provided. Compliance with the proposed section 7 of Part 3 would leave gardaí little time to conduct actual criminal investigations. Furthermore, the section makes no distinction between serious and minor offences nor does it take account of whether a victim wishes an investigation to proceed.
Even though the main focus of amendment No. 2 is the provision of information to victims, it does not cover all the information required under the victims' charter. It says nothing about what a victim should do if information is not provided. Should the victim engage in further legal action or appeal to the criminal justice agencies concerned? The existing victims' charter provides a clear avenue of internal complaint to each of the agencies if a victim's expectations are not met and this clarity will be carried forward into the revised charter. If such mechanisms were prescribed by law, a considerable amount of time and discussion would be expended in drafting them. I empathise with the principle behind these amendments but I suggest that prescriptive legislation is not the appropriate vehicle for them.
The proposed Part 2 is brief and aspirational in providing to victims a generic right to services in so far as resources are available. Part 3 contains three sparse sections which set out circumstances in which information can be withheld or given to a victim's representative. Senator Norris sought a definition of "support person of a victim" in amendment No. 7. If these amendments ever became the law of the land, they would be a recipe for confusion and legal wrangling. I do not propose to accept the amendments because they impose a rigid regime where flexibility is preferable, lack clarity and are likely to cause disputes, confusion and further litigation.
Under the heading "What you can expect from the Gardaí", Page 7 of the existing victims' charter sets out in layman's language what victims can expect, stating:
The Gardaí are committed to addressing your needs and concerns in an empathetic, understanding and problem-solving manner.
If you are a victim of crime, the Gardaí will respond promptly to your call . . . tell you the name, telephone number and station of the investigating Garda . . . outline the investigation process to you . . . tell you about the services available from Victim Support . . . tell you, where a suspect is charged . . . show special sensitivity in relation to sexual offences . . . tell you about offender releases . . .
It provides further details for the following categories of victims:
for families of murder victims . . . as a victim of domestic violence . . . if you are a visitor to Ireland . . . an elderly person . . . if you have any form of physical or mental disability. . . if you are unable to communicate fluently in Irish or English.
The charter refers victims whose expectations are not met to the Garda victim liaison office on Harcourt Street. I respectfully suggest this is a better way of meeting the objectives set out by Senator Regan and others, with whom I genuinely share a common cause.
I acknowledge that the victims' charter has been a valuable aid to those who have been affected by crime but the European framework decision puts an obligation on us to put these matters on a statutory footing. It is legitimate to oblige organisations such as the Garda Síochána to provide information where a victim seeks it. I maintain that it is necessary to set out these procedures in criminal legislation.
The Minister argued that my amendments would unduly complicate the Bill but criminal legislation is complicated and precise by its nature. I do not see why there should not also be precision in regard to victims of crime. I urge the Minister to consider, if not the amendments under discussion, some other means to give statutory acknowledgement to the rights of victims of crime in line with the framework decision of 2001, which will undoubtedly become a directive following the entry into force of the Lisbon treaty.
I do not agree that my proposed amendments would give rise to unnecessary litigation. The way in which a victim is treated is separate to the prosecution of an alleged offender. I do not see how treating a victim in a reasonable manner would interfere with the effective prosecution of crime. The amendments I tabled include saver clauses in respect of resources. A saver clause also provides that if the provision interferes in any way with the maintenance of law and order, in other words, the prosecution, the giving of the relevant information is not required. While the Minister listed areas, including victim impact statements, where the law has been changed to facilitate the victim, these are highly limited.
The basic issue in this respect is one of acknowledging the victim and providing him or her with the information required on the process. I note the charter is vague as to the process to apply when an offender who has been found guilty is released, freed on bail etc. The charter does not cover these issues adequately and they are the subject of later amendments. I urge the Minister to reconsider and have these matters placed on a statutory basis, either by accepting the amendments or providing for them in a form he deems fit.
While the Garda Síochána performs an important task in informing victims of the progress of investigations and the pre-trial process, this process is dependent on the goodwill of individual gardaí. I am aware of the charter but the difficulty with it, as Senator Regan noted, is that its terms are rather vague and somewhat aspirational. It does not impose a requirement that actions be taken to keep victims informed, particularly in cases of more serious crimes such as rape and murder which individual gardaí outside specialist units may not have encountered previously.
The establishment of specialist units has been highly beneficial in improving practice among gardaí in their dealings with victims of crime. Despite this, we still hear of problems, particularly in rural Garda stations where a complainant may make a serious complaint which the garda on duty has not dealt with previously. Statutory requirements in this area would give greater rights to complainants and victims and remove the onus on individual gardaí to provide the type of information victims require. To that extent, Senator Regan is correct.
Senator Regan acknowledges that the victims charter contains substantial detail. As I indicated, the charter is being reviewed by the Commission for the Support of Victims of Crime. It is hoped the revised version which will take into account developments at Oireachtas and European Union level will be published in the first quarter of 2010.
I do not accept Senator Bacik's view that Garda practice can be haphazard and depends on the individual garda. The Garda Síochána has a fully dedicated victim liaison office and ongoing training is available on human rights, dealing with victims and addressing their needs. In a force of almost 14,800 individuals one will always find some officers who are not doing exactly what is required. By and large, however, the Garda Síochána has come a long way and the position has changed significantly since the time when little assistance was given to prosecution witnesses, especially when court cases started.
The Senators and I differ on whether one should introduce statutory rights in this area. The strong fear is that to do so would create confusion and that such rights could be used by the defence to get their client off, which would not be in the interests of the victim. While that scenario may be a long stretch of the imagination, once a right is written into legislation and it can be proved that certain statutory requirements have not been properly met in connection with a particular incident, it may make life more difficult for everyone. Under the charter, if a victim's expectations are not met, any inquiries, suggestions or feedback on any aspect of the treatment of victims of crime by members of the Garda Síochána will be dealt with by the liaison office. While I understand the spirit of the amendments, I cannot accept the introduction of statutory requirements of this nature.
I ask the Minister to elaborate on his curious argument that the offender could benefit and escape prosecution because of rights prescribed for the victim of crime. While I appreciate that certain cases may involve sensitive information, the amendments provide that such information would not be given where concerns arose. I do not accept the link the Minister has suggested. He is loading his argument in suggesting that by legislating we would be interfering with the effective prosecution of crime. In the European context, given the legally binding requirements of the framework decision, is the Government not obliged to legislate?
The Minister put a word in my mouth by suggesting I described Garda practice as haphazard. As I stated, Garda practice in dealing with victims of crime has greatly improved and victim satisfaction with the pre-trial and investigation process is greatly enhanced by the goodwill shown by many gardaí in providing information and acting as an informal liaison officer through, for example, giving personal telephone numbers and so on. I am conscious that all these practices take place, that training is provided in Templemore and that a victim liaison office has been established. I did not imply that Garda practice was haphazard but suggested it was not as structured as it could be. For example, a specialist unit is still not available in some areas where, fortunately, certain crimes may be so rare that the only garda on duty is not familiar with the complaint with which he or she is confronted.
Criminal practitioners are aware of the significance of the initial statement a complainant makes to the Garda on first arrival at the Garda station, perhaps in distress or late at night. This statement is the hook on which a trial may ultimately fall if there are difficulties with it. It is vital, therefore, that gardaí who take statements are trained in dealing with victims. Perhaps this argument goes a little beyond the scope of the amendment but it is important that victims are informed of all their rights at an early stage.
As I stated, I did not mean to suggest Garda practice is haphazard. I welcome improvements in this area. We are all conscious that, in general, the treatment of prosecution witnesses has improved significantly during the years. The Office of the Director of Public Prosecutions has made a major commitment to change. The Minister will remember a time when prosecution counsel were more or less told they could not even speak to victims or prosecution witnesses for fear of being accused of coaching them. Matters have improved greatly in this respect.
Senator Regan addressed the Minister's point concerning the potential abuse of legislation and its potential to bring down a trial. I do not see how these amendments could give rise to such a scenario. The Minister's point is, however, similar to one I made on amendment No. 50 regarding the need to be mindful of unforeseen consequences when legislating to make significant changes to the criminal justice system. He is correct that the inclusion of certain obligations in legislation may have consequences. In this case, I do not believe the consequences he outlined would arise because the rights provided for in the amendment are afforded to the victim or complainant and could not be used by the defence. It is nonetheless important to consider potential consequences when introducing legislation on these fundamental changes to criminal practice.
Again, we will beg to differ. On the point I made, I do not think one could equate amendment No. 50, which is pretty definite and tries to bring clarity to the serving of a book of evidence, with these amendments. On the point I made on whether this could be used by an offender, if he or she had a very busy legal team, he or she could suggest that in fulfilment of the proposed section 7(1) which states:
A victim shall as soon as practicable, be given information by an Garda Síochána ... by the Courts Service ... [by] the Director of Public Prosecutions about the following matters ... the progress of the investigation of the offence ... [and equally] the progress of the prosecution, if any, taken against any alleged offender or alleged offenders and, in particular, the date, time and location of each event listed in subsection (2)
a difficulty could arise. I hazard a guess that the progress of the investigation of the offence would cause severe difficulties and if the offender and his or her legal team found that the victim was being given far too much information, an effort would be made by a creative counsel to suggest that the prosecution effort or the investigation of the offence has been compromised.
The Minister might comment on the obligation to legislate on the EU framework decision. The Minister is suggesting that the amendments are too prescriptive. However, the first amendment is not very prescriptive. If that is the main objection the Minister has to these amendments, I do not see how that applies to amendment No. 4 which gives recognition to the victims of crime in terms of how they are to be treated. A victim has the right to be informed as fully as possible of his or her rights and the remedies available to him or her, his or her role in the criminal justice process and of the availability of health services and social services, in so far as the resources are available. That is not overly prescriptive but does enshrine the general principle in legislation, which could be linked to the victims' charter which changes from time to time. I accept amendment No. 5, which inserts the new section 7, is very detailed. It would not apply to amendment No. 4. Perhaps the Minister can address those issues.
The Minister referred to amendment No. 50 and said it simply clarified the law on serving the book of evidence. The current law on it is perfectly clear. The amendment proposes to change rather than clarify it.
Equally, it makes it more definitive. On the framework decision, compliance with it does not necessitate legislation. One also has to take into account the fact that our legal system is not similar to the type of legal systems on mainland Europe.
While we have sympathy with the sentiments of these amendments and I would not want it thought that we would go against any of the suggestions in them, it is not appropriate to put them in the Bill as a statutory requirement for a number of reasons. I refer to the type of information which had to be given to a victim and made a point on amendment No. 2, which referred to treating the victim with courtesy and compassion and the victim's dignity and privacy. They are subjective criteria. What is or is not courtesy to the victim may be courtesy by the judge. He or she may feel they are being treated with courtesy. It could lead to endless legal disputes in that respect if it was put in place in legislation. It is far preferable to have the type of scheme we have, namely, a victims' charter, which is working well.
We have given a good airing to those amendments. Is amendment No. 2 being pressed?
Yes.
Amendment put.
The Committee divided: Tá, 22; Níl, 28.
Tá
- Bacik, Ivana.
- Bradford, Paul.
- Burke, Paddy.
- Buttimer, Jerry.
- Cannon, Ciaran.
- Coffey, Paudie.
- Cummins, Maurice.
- Donohoe, Paschal.
- Fitzgerald, Frances.
- Hannigan, Dominic.
- McFadden, Nicky.
- Mullen, Rónán.
- Norris, David.
- O’Reilly, Joe.
- O’Toole, Joe.
- Phelan, John Paul.
- Prendergast, Phil.
- Quinn, Feargal.
- Regan, Eugene.
- Ryan, Brendan.
- Twomey, Liam.
- White, Alex.
Níl
- Boyle, Dan.
- Brady, Martin.
- Butler, Larry.
- Callely, Ivor.
- Carty, John.
- Cassidy, Donie.
- Corrigan, Maria.
- Daly, Mark.
- de Búrca, Déirdre.
- Ellis, John.
- Feeney, Geraldine.
- Glynn, Camillus.
- Hanafin, John.
- Keaveney, Cecilia.
- Leyden, Terry.
- MacSharry, Marc.
- McDonald, Lisa.
- Ó Domhnaill, Brian.
- Ó Murchú, Labhrás.
- O’Brien, Francis.
- O’Donovan, Denis.
- O’Malley, Fiona.
- O’Sullivan, Ned.
- Ormonde, Ann.
- Phelan, Kieran.
- Walsh, Jim.
- White, Mary M.
- Wilson, Diarmuid.
Tellers: Tá, Senators Maurice Cummins and Eugene Regan; Níl, Senators Diarmuid Wilson and Déirdre de Búrca.
Amendment declared lost.
Amendment No. 3 has already been discussed with amendment No. 2.
I move amendment No. 3:
In page 6, before section 4, but in Part 1, to insert the following new section:
5. — A victim or member of a victim's immediate family who has welfare, counseling, medical or legal needs arising from the commission of an offence or as a result of anti-social behaviour shall have access to services that are responsive to those needs insofar as resources are available.
The question is that the new section be there inserted. Those in favour say "Tá".
Those against say "Níl".
On a point of order, nobody said "Níl" so the amendment should be carried.
Excuse me but I said "Níl".
Amendment put and declared lost.
I move amendment No. 4:
In page 6, before section 4, but in Part 1, to insert the following new section:
"PART 3
INFORMATION TO BE GIVEN TO VICTIMS
6.—(1) A victim shall, as soon as practicable after the victim comes in contact with a State agency, be given information by the personnel of the agency about services or remedies available to the victim by such agency and by any other State agency and by any local accessible voluntary agency.
(2) In this section, "State agency" means -
(a) an Garda Síochána,
(b) the Courts Service Board,
(c) the Criminal Injuries Compensation Tribunal,
(d) Department of Health and Children,
(e) Department of Justice, Equality and Law Reform,
(f) the Health Service Executive.
(3) Nothing in this section prevents information required to be given under this section from being given otherwise than is required under this section.
Amendment put and declared lost.
I move amendment No. 5:
In page 6, before section 4, but in Part 1, to insert the following new section:
7.—(1) A victim shall as soon as practicable, be given information by an Garda Síochána or, as the case requires, by the Courts Service Board or the Director of Public Prosecutions about the following matters:
(a) the name of the member of an Garda Síochána who has the primary responsibility to investigate the reported offence and/or anti-social behaviour and relevant Garda station;
(b) the telephone number where the Garda referred to in paragraph (a) may be contacted for information relating to the investigation or resulting prosecution;
(c) an outline of the investigation and prosecution process;
(d) the progress of the investigation of the offence;
(e) the charges (if any) laid together with an explanation of the nature of the charges or any final decision made not to charge an alleged offender;
(f) the progress of the prosecution, if any, taken against any alleged offender or alleged offenders and, in particular, the date, time and location of each event listed in subsection (2);
(g) whether or not the accused or offender is granted bail and the terms and conditions of any bail granted;
(h) the victim’s role as a witness in the prosecution of the offence;
(i) the victim’s entitlement to make a Victim Impact Statement and the role of such Statement;
(j) every final disposition of all proceedings at first instance or on appeal (if any) relating to the offence, to include—
(i) any convictions or pleas of guilty entered and sentences imposed, in relation to the offence,
(ii) any acquittal or deemed acquittal or finding that the charge was not proved,
(iii) any decision of the prosecution to modify or not to proceed with charges laid, including any decision to accept a plea of guilty to a lesser offence than the original offence or offences charged,
(iv) any application made to the High Court by way of judicial review in connection with charges laid in relation to the offence, the prosecution brought or the trial resulting from the offence or any resulting conviction or sentence and any resulting court order made;
(k) where applicable, the courts’ jurisdiction to make orders pursuant to the Domestic Violence Acts 1996 to 2002 and the type of orders that can be made under the said Acts;
(l) the courts’ jurisdiction to order that information identifying the address of the place where the victim lives or works be not given to an accused or an offender, or in evidence or in information provided to a court;
(m) where applicable, the circumstances in which a victim may give evidence through a television link or through an intermediary under the Criminal Evidence Act 1992 as amended by the Criminal Law (Sexual Offences) Acts 2006 and 2007 or the Criminal Justice Act 1999;
(n) where applicable, the courts’ jurisdiction pursuant to section 181 of the Criminal Justice Act 2006 to order that a victim’s medical condition be a matter of anonymity should the victim give evidence as a witness;
(o) the circumstances in which a compensation order may be made or reparations obtained by a victim pursuant to the Criminal Damage Act 1991, the Criminal Justice Act 1993, the Children Act 2001 or pursuant to any non-statutory scheme established by the State;
(p) the circumstances in which a victim’s anonymity may be protected pursuant to the Criminal Law Rape Acts 1981 and 1990 as amended by the Criminal Law (Sexual Offences) (Amendment) Act 2007;
(q) the jurisdiction of the courts pursuant to section 26 of the Criminal Justice Act 2007 to make a Protection of Person’s Order to protect the victim of specified indictable offences or of an alleged such offence or any other person from harassment by an offender or a person charged with such offence by prohibiting the offender or the person so charged from engaging in behaviour that would be likely to cause the victim or other named person fear, distress or harm or would be likely to amount to intimidation;
(r) where applicable, the availability of a restorative justice scheme in operation of relevance should an alleged offender be convicted, the objectives of such scheme, the procedure applicable and the opportunity, if any, available to the victim to participate in such scheme;
(s) where applicable, in relation to anti-social behaviour, the remedies available pursuant to Parts 11 and 13 of the Criminal Justice Act 2006, the steps intended to be taken, the resolution, if any, achieved and, where required, details of any court application made and of any court orders granted and the role where relevant of the victim.
(2) The events referred to in subsection (1)(f) are:
(a) the first and any subsequent appearance in court, in connection with the offence, of the person accused of the offence;
(b) any preliminary hearing relating to the offence;
(c) any defending hearing, or trial relating to the offence;
(d) any hearing set down for sentencing for the offence;
(e) any hearings of appeal (if any) against conviction of the offence or against the sentence to be imposed or to be imposed for the offence or both;
(f) any hearings to review any sentence imposed on the application of the Director of Public Prosecutions where it appears to the Director of Public Prosecutions that a sentence imposed by a court on indictment was unduly lenient.
(3) Nothing in this section prevents information required to be given under this section from being given otherwise than as required under this section.
Amendment put and declared lost.
I move amendment No. 6:
In page 6, before section 4, but in Part 1, to insert the following new section:
"8.—Nothing in sections 6* or 7* requires any person to give information if good reason for withholding the information exists, such as where the giving of the information would be likely to prejudice the maintenance of law and order, including the prevention, investigation and detection of offences and the right to a fair trial.”.
Amendment put and declared lost.
I move amendment No. 7:
In page 6, before section 4, but in Part 1, to insert the following new section:
"9.—Information required to be given under sections 6* or 7* may be given to a support person of a victim if the victim—
(a) cannot receive it, or
(b) is not or may not be capable alone of understanding it.”.
Amendment put and declared lost.
I move amendment No. 8:
In page 6, before section 4, but in Part 2, to insert the following new section:
"10.—(1) This section applies to a victim of a sexual offence after a person accused of such offence has been convicted of the offence.
(2) No court shall order that the anonymity of the person convicted of a sexual offence shall be protected where a victim to whom this section applies informs the court that it is the victim's wish that the identity of the offender be publicly disclosed, even where disclosing the identity of the offender may result in the identity of the victim also being publicly disclosed and where the victim confirms to the court an awareness of such risk.".
This amendment concerns the publication of the name of the accused or offender. It would apply particularly in the case of a victim of a sexual offence after a person accused of such offence had been convicted and would be to the effect that no court would order that the anonymity of the person convicted of a sexual offence be protected where the victim to whom this section applies informed the court that it was the victim's wish that the identity of the offender be publicly disclosed, even where such disclosure might result in the identity of the victim also being publicly disclosed and where the victim confirmed to the court an awareness of such risk. The amendment is self-explanatory and I would welcome the Minister's views on it.
I support the amendment. As Senator Regan said, it is very clearcut and simply seeks to put into statutory form the need for the court to be conscious that the victim has confirmed his or her awareness of the risk that disclosing the identity of the offender may result in disclosing the identity of the victim. The practice is that anonymity should remain protected, even where the victim informs the court that it is his or her wish that the identity of the offender be publicly disclosed. We have seen this happen in a number of cases. It is an important amendment.
I understand the Senator's motivation in proposing this amendment. However, the issue he raises needs greater consideration and should be addressed in more appropriate legislation. The laws governing the anonymity of persons in sexual offence cases are very complex, as are the reasons for allowing it. They, therefore, need careful and considered analysis. Furthermore, any proposal regarding anonymity should not be advanced without close consultation with victims groups being a prerequisite. The proper place for consideration of anonymity is a comprehensive review of the laws governing sexual offences. I would be very reluctant to proceed in the absence of such a review.
Currently, anonymity of an accused is legally confined to specific offences and situations such as rape offences or where the accused person's name might, as, for example, in an incest case, identify the alleged victim. I intend to publish a major sexual offences Bill next year and anonymity provisions are being examined in that context. The amendment is not appropriate for inclusion in this Bill, as it raises issues that need to be examined in the context of specific legislation dealing with sexual offences. I suggest to the Senator that we do not rush consideration of this sensitive issue without adequate reflection or evaluation. I, therefore, ask that he do not propose the amendment on the basis that I will give a guarantee that the matter is being actively considered in the context of the sexual offences Bill which is being looked at very intensively in my Department. In particular, the Minister of State, Deputy Barry Andrews, through the Joint Committee on the Constitutional Amendment on Children, is looking at constitutional aspects in respect of the rights of the child in the Constitution. There is also the judgment in the "C" case. In preparing the Bill we are looking at the issue of anonymity as it relates to sexual offences generally.
The Minister always has a very good explanation as to why an amendment should not be passed. However, I understand his point in this instance. No amendment has been tabled without being considered adequately, at least by me——
I was not suggesting otherwise.
I know the Minister was not suggesting that, but I make the point that this is a self-contained amendment. It is in the context of a Bill designed to address the issue of the victims of crime and balance the rights of the offender and the victim. The safeguards to which the Minister alluded, namely, those regarding the risk of the identity of the victim being disclosed, apply only where the victim confirms to the court his or her awareness of that risk. The amendment has been formulated very carefully and should be addressed in a Bill which deals with the victims of crime. I do not see how a delay would assist us in dealing with the issue.
The Minister's reference to the proposed comprehensive sexual offences Bill is very welcome. Many of us have called for a codifying of the law on sexual offences, which is what the Minister proposes. It is both welcome and long overdue. However, in the short time I have been a Member of the House I have noted — I am sure Senator Regan will have seen this too — that where we table amendments that seem pertinent to the purpose of a Minister's Bill, this being one such amendment, we are told they are not appropriate because a major codifying legislation is to be introduced in the next year. We frequently receive this message. I can understand why the Minister says this but it seems this is not about the substantive law on sexual offences but the procedure by which the anonymity of a victim may be preserved, even in cases where he or she wishes to have the identity of the offender made public. We see this happening in the courts on an ongoing basis in cases involving sexual offences. It is important to clarify the procedure in this regard and I do not see why we must wait for major codifying legislation, although, as I said, we all will welcome the introduction of such a Bill on sexual offences.
Again, I ask that this issue not be dealt with on its own in this Bill. There is provision in existing legislation dealing with such crimes as incest whereby the anonymity of the accused is always retained, even where the charge is dropped. This is to protect the relationships of persons involved in the alleged incident. Regarding charges of rape and sexual assault, no details are revealed when a person is charged but if he or she is convicted, the name of the victim may be identified if that person chooses to remove anonymity. That is the law as it stands. In 1998 my Department published a discussion document on sexual offences which referred to the issue of anonymity. We are now well advanced in preparing sexual offences legislation and one thing we want to do is liaise with groups interested in the issue which is not an easy one. It is very complex. We would like to have it considered in more detail rather than have it dealt with in isolation in this legislation.
The Minister mentioned the accused. The amendment deals with the person who is convicted.
Yes.
Again, I thank the Minister for his full response but I reiterate Senator Regan's point that this amendment is self-contained and would be a change to procedure rather than the substantive law. I welcome that the process to codify the law on sex offences is ongoing.
I should have declared my own interests, in that I am looking forward to working with the Office of the Director of Public Prosecutions at a conference that we are holding in January to examine the process by which rape trials are run and the ways in which victims are treated therein. I hope we will feed into the ongoing law reform project in which the Minister is engaged.
While the amendment deals with a procedural matter, it is of some significance to victims and worthy of acceptance on its own merits.
Amendment put.
The Committee divided: Tá, 23; Níl, 26.
Tá
- Bacik, Ivana.
- Bradford, Paul.
- Burke, Paddy.
- Buttimer, Jerry.
- Cannon, Ciaran.
- Coffey, Paudie.
- Cummins, Maurice.
- Donohoe, Paschal.
- Fitzgerald, Frances.
- Hannigan, Dominic.
- McFadden, Nicky.
- Mullen, Rónán.
- Norris, David.
- O’Reilly, Joe.
- O’Toole, Joe.
- Phelan, John Paul.
- Prendergast, Phil.
- Quinn, Feargal.
- Regan, Eugene.
- Ross, Shane.
- Ryan, Brendan.
- Twomey, Liam.
- White, Alex.
Níl
- Boyle, Dan.
- Brady, Martin.
- Butler, Larry.
- Callely, Ivor.
- Carty, John.
- Cassidy, Donie.
- Corrigan, Maria.
- Daly, Mark.
- de Búrca, Déirdre.
- Ellis, John.
- Feeney, Geraldine.
- Glynn, Camillus.
- Hanafin, John.
- Leyden, Terry.
- MacSharry, Marc.
- McDonald, Lisa.
- Ó Domhnaill, Brian.
- Ó Murchú, Labhrás.
- O’Brien, Francis.
- O’Donovan, Denis.
- O’Malley, Fiona.
- Ormonde, Ann.
- Phelan, Kieran.
- Walsh, Jim.
- White, Mary M.
- Wilson, Diarmuid.
Tellers: Tá, Senators Maurice Cummins and Eugene Regan; Níl, Senators Déirdre de Búrca and Diarmuid Wilson.
Amendment declared lost.
SECTION 4.
I move amendment No. 9:
In page 6, line 31, after "person," to insert the following:
"or any offence under the Non-Fatal Offences against the Person Act 1997".
This is a straightforward amendment. By way of introduction to it, I should say that as I said on Second Stage, I very much welcome the provisions in Part 2 of this Bill and the necessary changes being made to the victim impact procedure introduced in the Criminal Justice Act 1993. We are all aware very obvious flaws were exposed in that Act, notably the fact there was no provision for families of victims of homicide to give statements to the court as to the impact of the crime on them.
Section 5(2) of the 1993 Act simply applies to a sexual offence, an offence involving violence or threat of violence and an offence of attempting or conspiring to do the same. Section 5(3) provided that where a court is determining the sentence, it shall, upon application by the person in respect of whom such an offence was committed, hear the evidence of the person in respect of whom the offence was committed as to the effect of the offence on such person upon being requested to do so. As AdVIC and others pointed out, this did not leave room for the families of victim of homicide. Judges in the Central Criminal Court, in particular, and in the Circuit Court in manslaughter trials were very conscious of this and gave provision to families to make victim impact statements. I am delighted the Minister has brought forward amendments to section 5 of the 1993 Act to clarify the law on victim impact statements.
All my amendments to section 4 — many of them are technical — are designed to improve the procedure for victim impact statements and to ensure it is as effective as possible for the victims of crime while being mindful of the rights of the accused. We are also aware this applies to an accused person who has been convicted of an offence where the court is determining sentence.
Amendment No. 9 extends the range of offences to which section 5 of the 1993 Act would apply. I have not made any changes to the sexual offences in section 5(2)(a). Following on from our debate earlier, I would say that it is somewhat ironic and symbolic of the state of our law on sexual offences that the definition of a sexual offence is contained in the Criminal Evidence Act 1992 rather than in a code on sexual offence. The UK Sexual Offences Act 2003 is a much better model in which a much clearer hierarchy of sexual offence is set out. That is just a by the way comment.
Amendment No. 9 seeks to amend section 5(2)(b) of the 1993 Act and to extend the category of offences to which victim impact statements apply to offences not only involving violence or the threat of violence to a person but also to any offence under the Non-Fatal Offences Against the Person Act 1997. That is relatively confined and I do not seek to go beyond that.
I am conscious there are offences of violence not contained in that Act. The difficulty is that there are offences in the 1997 Act which may not be covered by that global definition of an offence involving violence or the threat of violence. I am thinking of offences such as harassment, which involves the creation of fear but which may occur without an actual threat of violence, or the offences of abduction of a child in sections 16 and 17 of the 1997 Act, for example.
The Minister might be willing to see the provision for victim impact statements extended to offences of that nature within the Non-Fatal Offences Against the Person Act 1997 but they are not currently covered or at least the section is ambiguous. It may be that an offence of abduction of a child would involve the threat of violence but equally it might not if the person abducting is known to the child. It might not involve overt violence or the threat of violence.
I am simply trying to see if there is a way to broaden it out while keeping it within a relatively confined category of offences. The Non-Fatal Offences Against the Person Act seems to be a good codifying Act and the application of section 5 of the 1993 Act should apply to all the offences within that. I am interested to hear what the Minister has to say.
I commend the amendment to the Minister. Senator Bacik's formulation is more comprehensive and is a catch-all one which may be the intended purpose of the formulation in the Bill. It is more fit for purpose and I support the amendment.
The Senator proposes that we include a specific reference to offences under the Non-Fatal Offences Against the Person Act 1997 in subsection (1)(b) of the new section 5 proposed to be inserted in the Criminal Justice Act 1993 by section 4 of this Bill. As it stands, section 5 applies to sexual offences, offences involving violence or the threat of violence and offences consisting of attempts to commit such offences. There was a good deal of consensus that these were the types of offences in which mandatory consideration of victim impact evidence was most appropriate. I am not aware of any representations from victim support groups for additions to the list. The report of the balance in criminal law review group which considered victim impact statements did not make recommendations for amendments to the categories of offences to which section 5 applies. The non-inclusion of an offence or category of offence in the section does not prevent the sentencing court from considering victim impact evidence where it takes the view that this would be helpful in the determination of the sentence in a particular case. Such a consideration is a matter left to the discretion of the court.
A specific amendment inserting an explicit reference to the 1997 Act would largely duplicate what is already contained in paragraph (b). With regard to the offences in the 1997 Act, it is clear that most of them involve violence or the threat of violence. The offences include assault under section 2, assault causing harm under section 3, assault causing serious harm under section 4, threats to kill or cause serious harm under section 5, syringe attacks under sections 6,7 and 8, and coercion under section 9. All these offences involve violence in some shape or form. Furthermore, paragraph (b), by its use of a generic phrase, captures many other offences which involve violence or the threat of violence, not just those included in the 1997 Act. The offence of robbery under the Criminal Justice (Theft and Fraud Offences) Act 2001 is an obvious example.
While there is advice to a certain extent that the amendment is unnecessary, by proposing the explicit reference to the 1997 Act, the Senator is trying to capture a small number of offences under that Act which do not necessarily involve violence but which can cause substantial emotional distress to victims. The limitation in paragraph (b) is that it does not appear to capture offences involving solely emotional distress to the victim. The offence of harassment under section 10 of the 1997 Act is an example. A person engages in harassment of another person if he or she, by any means, including the use of a telephone, persistently follows, watches, pesters, besets or communicates with a person. To be guilty of an offence a person must seriously interfere with the other person’s peace, privacy or cause alarm, distress or harm to that person.
Other offences under the 1997 Act do not necessarily involve violence but are likely to cause emotional distress, including the abduction of a child under sections 16 and 17. As mentioned, the non-inclusion of offences causing emotional distress does not prevent the court from taking into account the impact of the offence on the victim in sentencing but this is not a mandatory requirement. However, I recognise that a small number of offences do not necessarily involve violence or the threat of violence. I will bring forward an amendment on Report Stage in order to capture the offences which inflict emotional distress.
I am very grateful to the Minister who has put the case better than I did in saying there is a small number of offences that are not captured by the current formula in paragraph (b) but which cause emotional distress to victims. I think he accepts in principle that these could or should be covered by the victim impact procedure. I see him nodding in agreement, for which I am grateful. Therefore, I do not propose to press the amendment at this stage. I take the Minister’s point that there has not been a representation to this effect.
Happily, these are relatively rare offences but the offence of harassment, often referred to colloquially as stalking, causes immense distress to victims, even where there is not any actual threat of physical violence. The abduction of a child by parents or other persons under sections 16 and 17 equally could cause great distress without it being captured by the definition in paragraph (b). I would be delighted if the Minister could bring forward an amendment on Report Stage to try to do what I have tried to do, perhaps using a different formula or phrase he has used. Most offences under the 1997 Act are covered by the formula in place. I would not touch that formula but I am simply trying to add to it to include the very small number of extra offences which cause distress but which are not captured in the general definition of offences involving violence or a threat of violence.
I refer to amendment No. 15 in my name which specifically makes it clear there would be a more general power for the court to receive evidence of an offence other than an offence to which this section applies. This would be an alternative if we have not adequately captured the full range of offences in subsection (1)(b). I am grateful to the Minister and delighted he will bring forward an amendment on Report Stage that may extend the definition in the way I have requested.
I am pleased the Minister has seen his way to considering an amendment on this point as it seems to have been well made. We are often accused of bringing forward amendments which merely reflect representations made to us. However, there are times when we propose amendments which are not based on representations and which does not mean they are necessarily less worthy.
Amendment, by leave, withdrawn.
I move amendment No. 10:
In page 7, line 14, after "by" to insert "or on behalf of".
This is a technical amendment to section 5(3) of the 1993 Act. The original section 5 provides that, "a court shall, upon application by the person in respect of whom such offence was committed, hear the evidence of the person". The new subsection restates the words a court shall, upon application by the person in respect of whom such offence was committed. I simply propose to insert the words "or on behalf of" to make it clear the application could be on behalf of the person, for example, by the Director of Public Prosecutions. In section 5(2)(b) the Minister has broadened the definition of “person” in respect of whom the offence was committed to include instances where a person has died, is ill or otherwise incapacitated, and a family member. This covers the gap in section 5 of the 1993 Act. I welcome the new paragraph (b) as it will make a significant difference in that it gives a right to family members to be heard at sentencing stage in homicide trials. This is a vital provision. The amendment would not take away from it.
I am advised the amendment is not necessary, as it is always recognised that an application can be made on behalf of a person by his or her legal team or a family member. This is not a provision for which I would die in the ditch, so to speak. I suggest the usual formula in such legislation is "by the person" and that the court has inherent discretion to allow a legal representative, an NGO or a family member to make a representation.
I thank the Minister and take his point that the amendment is not necessary. I understand that in practice the application is made by counsel for the Director of Public Prosecutions rather than by directly by the victim. I take the point that the formula already captures this practice. The amendment was proposed in the interests of trying to make the procedure clearer and the legislation reflect more accurately the practice in the courts. I will not press the amendment at this stage.
Amendment, by leave, withdrawn.
Amendments Nos. 11 and 14 may be discussed together, by agreement, as No. 14 is consequential on amendment No. 11.
Government amendment No. 11:
In page 7, to delete lines 27 to 33 and substitute the following:
"(ii) is—
(I) a person with a mental disorder (not resulting from the offence concerned), the person or a family member,
(II) a person with a mental disorder (not resulting from the offence concerned), who is a child, the person or his or her parent or guardian,
may give evidence as to the effect of the offence concerned on that person,".
The purpose of the first amendment is to clarify who may make a victim impact statement on behalf of a person with a mental disorder, whether that person is a child or an adult lacking capacity. As subparagraph (II) is currently framed, the person himself or herself, a guardian or a family member may make this statement. The inclusion of guardian with respect to adults lacking capacity presents some difficulties. The Bill defines "guardian" in this circumstance as a legal guardian. However, unlike children with mental disorders, adults lacking capacity do not, in many instances, have legal guardians and the term has very limited practical meaning with respect to adults. This situation is to be remedied by the mental capacity Bill which is being drafted and intended to replace the wards of court system with a system of personal guardianship. I intend to consider whether the personal guardian envisaged in the mental capacity Bill could be given the additional role of making a victim impact statement on behalf of an adult with a mental disorder, should the need arise. This would be done in the mental capacity Bill. In the interim my proposal is that subparagraph (ii) be substituted with a provision such that in the case of an adult person with a mental disorder not resulting from the offence concerned, a person or a family member may make the victim impact statement. In essence the term "guardian" is removed. In the case of a child with a mental disorder, his or her parent or guardian may make the victim impact statement. The term "guardian" is retained in this case as its meaning is clear but "family member" is removed. I intend to remove "family member" in this case to bring the section into line with the provisions of subparagraph (i) which apply to children under the age of 14 years who do not have a mental disorder, having regard to the broad meaning given to "guardian" and the inclusion of a specific reference to the child's parents. This is achieved by amendment No. 11.
Amendment No. 14 is consequential and deletes the definition of "guardian" as it relates to a person with a mental disorder. The definition of "guardian" as it relates to a child is retained. Given the nature of the task at issue, that is, making a victim impact statement, I believe it is appropriate to ensure flexibility as regards who may make such a statement on behalf of a vulnerable victim. I am satisfied, bearing in mind the wide definition given to "family member" for the purpose of this section, that my proposal achieves this in respect of an adult victim with a mental disorder. I am equally satisfied this aim is achieved in respect of a child victim with a mental disorder. I strongly suggest the House accepts these amendments. The scheme of the mental capacity Bill was published in 2008 and the drafting has commenced in the Attorney General's office. We hope to publish that Bill in early 2010.
I support the amendment, which clarifies the position in respect of a person with a mental disorder. I am pleased to hear the Minister state the mental capacity Bill is being drafted and that he intends to introduce it early next year. I am conscious that my predecessor as one of the University of Dublin Senators, Ms Mary Henry, carried out a great deal of work to try to reform the law on wardship and introduced a Private Members' Bill on mental capacity. This is a long overdue reform and further amendments may be necessary to incorporate the new procedure for wardship of adults with mental disorder, as the Minister stated. I support the amendment and it makes sense.
I put one query to the Minister, although perhaps it is something I should know and I apologise if that is the case. I am unsure why the age of 14 years is given in proposed new section 5(3)(b)(i). How does this affect the Minister’s proposed amendment? The proposed new section 5(3)(b)(i) states that where the person in respect of whom the offence was committed “is a child under the age of 14 years, the child, or his or her parent or guardian, may give evidence as to the effect of the offence concerned on that child”. I presume amendment No. 11 would only apply to a child under 14 years. However, it is unclear how this would work in conjunction with the proposed new section 5(3)(b)(i). Why is this the case? Why is it limited to a child under that age? Will this carry on into the paragraph the Minister wishes to amend with the introduction of amendment No. 11?
The reason for the reference to 14 years of age is because in the Criminal Justice Evidence Act 1992, a distinction is made between children above and below the age of 14 years. We are passing that distinction into the legislation.
Amendment agreed to.
I move amendment No. 12:
In page 7, line 44, after "on" to insert the following:
"the person between the commission of the offence and the death of the person and on".
The purpose of the amendment is to try to ensure every relevant aspect of the victim impact statement would be covered and that no further flaws or unforeseen gaps would emerge in the provision. I propose the new section 5(3)(b)(iv) would be altered to expand the reference to the type of evidence which may be given. This is really about the person in respect of whom the offence is committed. Where he or she has died as a result of the offence, the legislation provides that “a family member of the person may give evidence as to the effect of the offence concerned on the family members of the person who has died”.
We have identified a gap in that there may be a time lag involved. Such a situation could occur in tragic cases in which the person was initially assaulted and subsequently died as a result of the injuries received in the original assault. Therefore, there may be a time lapse between the initial assault or offence and death. We contend that in the event of such a case there should be an extra line in the legislation dealing not only with the effect of the offence concerned on the family members of the person who has died but also on that person between the commission of the offence and the death of that person.
Perhaps we should have added the phrase "where relevant" because this may not be relevant in all cases. However, it may be relevant in a manslaughter case in which a person is assaulted outside a late night chipper or bar and subsequently dies some weeks or months later. By the time the case comes to trial the family members may give the victim impact statement. However, rather than be confined to giving evidence on the effect of the assault on them, they should be able to give evidence on the effect the crime has had on their deceased relative. Such a person may have been in a coma for some weeks or months and perhaps he or she suffered injuries which shortened his or her life to the extent that the trial ended up as a trial of homicide. It may not be a homicide trial because in some cases people are not convicted of homicide offences, even where a person has died as a result of the offence. The Minister may be aware of cases in which a person is convicted of violent disorder but in which a person has died as a result of the offence. However, for reasons of evidence the person accused of the offence may only be convicted of violent disorder or other related offences. In such a case the family members may wish to give evidence which is broader than evidence about the affect of the offence on them. They may wish to give evidence about the effect on their deceased relative also. The Minister may indicate this is not necessary and that it is already covered by implication. However, we have seen from the current provision in section 5 of the 1993 Act that it is important to be clear about exactly what family members may say.
The Minister will note that amendment No. 13 seeks to deal with the Court of Criminal Appeal judgment in the O'Donoghue case. Without pre-empting that——
We are dealing with amendment No. 12.
I am conscious of that but there have been Court of Criminal Appeal judgments which have been critical, if only by implication, of the lack of clarity in the current procedures. We wish to ensure the procedures are as clear as possible and as comprehensive as they need to be in the interest of the victims of the offence and the family members.
The proposed section 5(3)(b)(iv) provides that where a victim has died as a result of an offence, a family member may make an oral statement as to the effects of the offence concerned on family members. As the Senator indicated the provision does not take into account a situation in which the death of a victim, although resulting from the defendant, occurs sometime after the offence and he or she has suffered in the interim. It does not allow, at least in express terms, family members to outline the effect of the offence on such a victim. Under the proposed section 5(3)(b)(ii) the court is required to take into account the effect of the offence on the victim and may require evidence or submissions in this regard. The evidence or submissions referred to in that paragraph would consist of written reports compiled by the Garda with input from the victim, family members and medical personnel. Through this means the court would have an opportunity to receive evidence concerning the effect of the offence on the victim who may have lived for some time after the commission of the offence. However, there is merit in allowing family members to make an oral statement on this issue also. While I am not inclined to accept the Senator’s amendment today I call on her not to press it and we will discuss the issue will the Parliamentary Counsel with a view to introducing an amendment on Report Stage.
I am grateful to the Minister for indicating he will consider this matter. It may be that the drafting is not the most elegant and that we should have inserted a proviso stating "where relevant". I take the Minister's point that there is a more general provision in the proposed section 5(3)(b)(ii) which would cover the affect of the offence on a person who died or where there is a time gap between the commission of the offence and the death from injuries.
However, as the Minister noted, it is important that family members should be able to give oral evidence to the court about the impact of the offence upon them and upon their deceased relative. I am grateful to the Minister for indicating that he will consider this amendment and I will not press it at this stage.
Amendment, by leave, withdrawn.
I move amendment No. 13:
In page 8, between lines 20 and 21, to insert the following:
"(5) Where a person in respect of whom an offence has been committed, or a family member of that person, proposes to give evidence under subsection (3) orally rather than in writing, it shall not be necessary for the court to give any particular direction or warning to that person in respect of his or her evidence.".
I already have alluded to this amendment which is to deal with an issue that has arisen under the present regime and the existing section 5 of the 1993 Act. Members and the Minister will be aware of the tragic case involving the conviction of Wayne O'Donoghue. Although I do not propose to deal with the O'Donoghue case, Mrs. Justice Macken gave a judgment on it in the Court of Criminal Appeal concerning how victim impact reports would be dealt with. It is fair to state her judgment suggested that the court should warn any relatives giving a victim impact statement concerning the impact of the offence on them where the relative has died that were the relatives to go outside certain parameters, they would be in contempt of court. To a great extent, her judgment was based on what had happened in the O'Donoghue case in respect of its victim impact statement.
However, I argue that it would not be appropriate to give such a warning in a formal way. I am conscious the Minister has not suggested that such a warning would be required and it certainly has not been included within this legislation. In effect however, he has done so in a different way through the new powers in the new section 5(5)(a) as inserted by section 4 of this Bill which states: “The court may, in the interests of justice, order that information relating to the evidence given under subsection (3) or a part of it shall not be published or broadcast.” I am fully in agreement with this provision. It is the correct way to deal with the sort of scenario that may arise during a case such as the O’Donoghue one in which certain information in the victim impact statement goes beyond the evidence offered in court.
My proposed subsection, which would be inserted just before the proposed subsection (5), is intended to make clear that the court would not be obliged to give any particular direction or warning to a family member where he or she proposed to give evidence orally under subsection (3). The Minister's subsection (5) deals adequately with the difficulty that arose in the O'Donoghue case. However, my concern is the courts still might take it on themselves to give a warning to family members and this seems inappropriate given that no other category of witness gets such a warning. It seems rather unfair to single out the next of kin of deceased persons who have been unlawfully killed to receive such a warning. While the Minister may state it is not necessary to include a subsection such as this and that it might be creating a hostage to fortune, it simply seeks to deal with some of the wording of Mrs. Justice Macken in the O'Donoghue case. It makes clear that courts are not obliged to give a warning but can deal with any difficulties that arise in the oral evidence through ordering that information given shall not be published or broadcast or that a portion of it not be published or broadcast.
I support Senator Bacik's amendment. It is appropriate to deal with the issue that arose in that case, whether through this amendment or another appropriate amendment.
Senator Bacik took the words right out of my mouth as this amendment is completely unnecessary and in a way, its acceptance potentially would tie the hands of the presiding judge. The Senator is correct that a controversy arose a number of years ago in which the mother of a deceased boy added additional material that had not been notified to either the prosecution or defence legal representatives or to the sentencing judge at the time of delivering the victim impact statement. At the time the additional material attracted enormous media coverage that was adverse to the person convicted of the offence concerned. When this matter came to the Court of Criminal Appeal as part of the application by the Director of Public Prosecutions for a review of the sentence handed down in the case, the court made a number of important, albeit obiter, remarks as to how sentencing judges should approach victim impact statements.
The judgment to which I refer is that of 18 October 2006 in the case of The People v. Wayne O’Donoghue. The court expressed the view that the statement should be submitted to the judge and the legal representatives of the prosecution and defence in advance of the making of a statement to ensure it contained nothing untoward. This already is the practice and means the statements must be prepared in written form. The court went on to state: “While great sympathy must undoubtedly exist for the person making the victim impact statement, every effort must ... be made to ensure that the statement is not used to undermine the proper role of the prosecution in a trial, nor to seek to place in the public domain unfounded or unproven allegations against the convicted person who is awaiting sentence.” To ensure the statement is properly circumscribed, the court stated that the person making the statement should be warned by the sentencing judge that were he or she to depart from the statement in any material way, he or she might be liable to be found in contempt of court.
My understanding is that this is what the Senator's amendment seeks to address. It must be emphasised that the remarks were obiter and therefore are not binding. Consequently, there is no obligation on a sentencing judge to give such a warning and the Senator’s amendment therefore is unnecessary as it simply restates the law as it stands. The remarks of the court serve a useful function in highlighting the dangers associated with the uncontrolled delivery of additional material to a statement. Section 5(5) as inserted by section 4 of the Bill seeks to deal with this issue by giving the court discretion to prohibit the publication of all or part of a statement in the interests of justice. Breach of this prohibition is a criminal offence and this mechanism will mitigate the worst effects of any departure. Clearly, however it would be preferable were unfounded allegations against the accused not aired in the first instance. If the sentencing judge considers that a direction or warning is appropriate in a particular case, I believe that option should continue to be available and it is. While the Senator does not aim to rule this out completely, this is the reason I suggested the amendment simply restates the law and therefore is unnecessary and, as I noted at the outset, may in an unintended way overtly restrict the presiding judge.
I am grateful to the Minister and had anticipated what he would say on this issue. As he stated, the difficulty does not arise with the written statements which are given on notice. The difficulty in respect of the O'Donoghue case, on which he has given greater detail, arose because the oral evidence of the mother of the young boy departed from the written statement. I had at the time and continue to have immense sympathy for the mother who spoke from the heart as she was entitled to do. The difficulty is that it showed up problems in respect of lack of clarity in the victim impact procedure at the time. She clearly was unaware that a difficulty might arise and yet it did and it was unfair to the accused person to have brought up references to other information that had not been part of the trial process in which he was convicted.
However, it would be inappropriate for bereaved relatives to be given the sort of pre-emptive warning that Mrs. Justice Macken referred to in respect of contempt of court. This amendment seeks to ensure courts do not consider themselves to be obliged to give such warnings by virtue of the obiter statements of Mrs. Justice Macken in the Court of Criminal Appeal. Although I will not press this amendment at this stage, I ask the Minister, who is in a better position to so do, to ascertain whether courts are in the practice of giving such warnings. I also will check but if this is happening as a matter of routine, it would seem to be unduly burdensome on bereaved families. I cannot discern the necessity for giving such a warning in every case. While I do not believe this is taking place in every case, I seek to avoid the practice from developing.
It is better to leave it up to the discretion of the judge. The Senator's amendment merely restates the existing law and I do not believe it adds anything in this regard.
Amendment, by leave, withdrawn.
Government amendment No. 14:
In page 10, to delete lines 1 and 2.
Amendment agreed to.
I move amendment No. 15:
In page 10, between lines 7 and 8, to insert the following:
"(7) This section is without prejudice to the power of a court to receive evidence regarding the effect of an offence, other than an offence to which this section applies, on the person in respect of whom the offence was committed.".
I have already referred to this amendment, which is simply a saving amendment that would insert a new subsection (7) into the new section 5 of the 1993 Act.
This would provide that the section is without prejudice to the power of the court to receive evidence regarding the effect of an offence, other than an offence to which the section applies, on the person in respect of whom the offence was committed. It makes clear that the court has a general power to receive victim impact evidence even outside the specific offences to which this section applies. The Minister has indicated he accepts amendment No. 9 in principle, which ensures that offences beyond those involving violence or the threat of violence will be covered. It may be, in that case, that this amendment is unnecessary if we can be sure the new formula captures all necessary offences. In light of what the Minister said, this adds to the discretion of the court to accept victim impact statements in respect of other offences, which we may have overlooked and which may not be captured by the Minister's revised formula in the earlier section.
Section 5 of the 1993 Act places a mandatory obligation on a judge to take account of victim impact evidence with regard to sexual and violent offences. These are the categories of offences in which such a mandatory regime is most appropriate. This statutory obligation does not prevent a judge from taking victim impact evidence into account in other cases if he or she considers such evidence would be helpful in determining the appropriate sentence. Judges always have had this discretion and the creation of a mandatory obligation in certain categories of cases does not alter that discretion. This is unnecessary, as Senator Bacik anticipated in acceptance of the other amendments.
In light of that I will not press the amendment.
Amendment No. 15, by leave, withdrawn.
Section 4, as amended, agreed to.
Section 5 agreed to.
SECTION 6.
I move amendment No. 16:
In page 10, line 44, after "competent" to insert "and suitably trained".
This is an amendment to which I made reference in my speech on Second Stage. I am very glad to see greater provision made for children to give evidence through a video link and, under section 6, through an intermediary. This is welcome but I am aware of cases where there have been logistical problems with children giving evidence by video link in sex offence cases. This is a matter for the Courts Service, which usually deals very well with this by ensuring that an appropriate person is present in the room with the child where a child is giving evidence. Clearly, the experience will be very traumatic for a child witness, particularly in cases involving offences of a violent or sexual nature. Problems have arisen where an appropriate person is not available. It is important we ensure that a person is not merely competent. I am conscious of the Minister's provision in the new section 6(3), which states "An intermediary referred to in subsection (1) shall be appointed by the court and shall be a person who, in its opinion, is competent to act as such". My amendment seeks to ensure the person is not only competent but suitably trained. In general, the Courts Service ensures trained personnel are used but I wish to ensure this is provided for specifically.
I support the amendment. The term competent presumes that one is suitably trained but I draw attention to the fact that the Council framework decision on the standing of victims in criminal proceedings recognises the importance of this issue. In the preamble sections 10 and 11 state:
(10) The involvement of specialised services and victim support groups before, during and after criminal proceedings is important.
(11) Suitable and adequate training should be given to persons coming into contact with victims, as this is essential both for victims and for achieving the purposes of proceedings.
Even the framework decision recognised the importance of the points Senator Bacik raised in this amendment.
The word competent encompasses expertise, training or experience. We can rely on the Courts Service to appoint persons capable of performing the role. Sections 5 and 6 seek to apply the provisions of sections 13 and 14 of the Criminal Evidence Act 1992 to vulnerable victims when making their victim impact statement. Sections 13 and 14 apply when a child or a person with a mental disorder is giving evidence in a trial concerning sexual or violent offences. Section 14 of the 1992 Act concerns giving evidence through an intermediary who is also defined in that case as a person who, in the opinion of the court, is competent to act as such. Any proposals to alter the requirement for a court-appointed intermediary would have to take account of section 14 of the 1992 Act. It would be strange to have different requirements at the sentencing hearing to the trial itself.
I am informed by senior management of the Courts Service that they are not aware of any competence issues being raised about staff employed as intermediaries under section 14 of the 1992 Act. Currently court staff perform this function of intermediary and are selected competitively for that purpose. Staff selected in Dublin currently undergo a training course with Barnardos. This course is not available outside Dublin but arrangements could, if needed, be made to supply staff members to undertake the task outside Dublin. The number of cases outside Dublin is limited. The provisions of section 14 of the 1992 Act appear to be working well and can be extended to cover the provisions in section 6 of this Bill following its enactment. I do not propose to make additions to the statuary requirements for a person to act as an intermediary under section 6 of the Bill or section 14 of the 1992 Act.
I am grateful to the Minister for clarifying the position but, although training is provided and the Courts Service does a very good job of ensuring those dealing with video link evidence are highly competent and well trained, it may be the case that people in this position are not suitably trained. Given the very sensitive nature of the evidence and the fact that very young children are often involved in giving evidence through the video link, it is worthwhile to specify that the persons should be not only competent but suitably trained, particularly given that Barnardos is already providing this training. It will ensure that people are suitably trained. The difficulty that may have arisen, to which I referred, is that there are not sufficient trained personnel and if someone is absent there may not be someone suitable to take their place. It is important to ensure there will always be a suitably trained person in place. That is the purpose of this amendment.
I will leave this matter until Report Stage but there is not much between us.
I will not press this amendment and I am grateful to the Minister for his response. There is nothing between our positions and it is a question of whether competent encompasses suitably trained. The court will be satisfied that a person is highly competent but the amendment simply stresses the need for training in this situation.
Amendment, by leave, withdrawn.
Section 6 agreed to.
NEW SECTIONS.
I move amendment No. 17:
In page 10, before section 7, but in Part 2, to insert the following new section:
7.—In an application under this section the court may make such order as it sees fit to facilitate legal representation of a person in respect of whom an offence has been committed or a family member as appropriate, where it is appropriate to do so.
This refers to Part 2 of the Bill. I anticipate that the Minister will say this section is far too broad and that he does not see its purpose. The genesis of this amendment is research I carried out with colleagues in Trinity College Dublin for the Dublin Rape Crisis Centre in 1998. We examined the experiences of rape victims in Ireland during the trial process and contrasted this with the experiences of victims in other member states. In continental European systems, where a different criminal justice procedure is used, the victim has a greater role in the trial process and tends to be legally represented. In homicide cases this applies to the victim's family. We were interested in seeing whether a similar representative provision could be made in Ireland, while mindful that in an adversarial trial process equality of arms must be preserved. Therefore, it would be unfair to an accused person to have two against one. Based on the report following that research, in particular recommendations based on the Danish legal system which is closer to our own, the provision in the Sex Offenders Act, to which I referred, for separate legal representation for victims of rape and serious sexual offences was introduced albeit in a very limited form. A complainant has limited representation rights; where there is an application in the absence of the jury by the defence to adduce prior sexual history evidence the victim may be represented and his or her counsel will have a right of audience before the court. That is the type of scenario we recommended where it might be appropriate for a court to facilitate legal representation of a person.
This is a facilitative section which would encompass that idea of legal representation. I anticipate that the Minister will state this is too broad and that he does not see at what in particular it is aimed. I suppose I am setting it out as a marker because this is something we should examine. At present, I am researching how the limited right to separate legal representation we have in rape trials and serious sexual offence trials works in practice. From that we might be able to extrapolate whether it could be extended. I tabled this amendment to highlight the principle that legal representation of victims or their family members might be envisaged without breaching the adversarial trial procedures.
I am conscious that prior to our research on rape law the Civil Legal Aid Act already provided that victims of serious sexual offences were entitled to legal aid for pre-trial advice and assistance. In other words, they could consult a solicitor and get legal aid and that is still the case. Very few victims are aware of that and avail of it. However, the separate legal representation provision for prior sexual history applications is more widely used and that is of interest. As I stated, I am putting down a marker with this amendment, which is broadly drafted, but it indicates my hope that the Minister will examine this principle and how it could be built upon in the interests of victims' rights.
I support the amendment. It is an important point, particularly in the type of crimes to which Senator Bacik referred. I refer to the framework decision of the European Union, which states that, "Each Member State shall safeguard the possibility for victims to be heard during proceedings and to supply evidence". In that context it logically follows that if one is given the right to present evidence, one should have the opportunity to be properly advised and to be legally represented if that is deemed appropriate by the court in particular cases.
I can understand the effort by the Senator to have this principle discussed but this has been examined in recent years and the strong conclusion is that there are constitutional impediments to full separate legal representation for a complainant during the duration of a trial. The weight of legal advice available to the Department is that full separate legal representation would tilt the balance of a trial before a jury to such an extent that it would conflict with Article 38.1° of the Constitution, which states that, "No person shall be tried on any criminal charge save in due course of law".
The Law Reform Commission supported this view in its report on rape, and Justice Flood in the People v. MC on 16 June 1995 intimated that making an injured party an independent party in a criminal trial would be doubtful constitutionally. The legal advice to the Department when the Sexual Offences Act 2001 was being prepared was that full separate legal representation in the presence of a jury would, in the words of the Law Reform Commission in its report on rape, deprive the accused of “the long-standing benefits of a criminal trial conducted in ‘due course of law’”. The circumstances in which complainants are entitled to avail of legal representation are therefore of necessity very narrow.
The Sex Offenders Act 2001 provides for separate legal representation for complainants, rightly in my view, in a situation where an application is made to the court in the course of a trial to adduce evidence or cross-examine about a complainant's past sexual history. The argument in favour of separate legal representation for the complainant in rape and sexual assault cases was that it would provide much needed support for complainants, render the trial process considerably less traumatic for them and contribute significantly to bringing about an increase in the reportage of rape.
The provision on separate legal representation, taken together with the provisions in section 26(3) of the Civil Legal Aid Act 1995, allows a complainant in cases of rape and serious sexual assault to consult a legal aid solicitor who may accompany the complainant into court. Procedures in place whereby the prosecution team arranges for pre-trial consultations with complainants to familiarise them with the legal proceedings and to explain the lay-out and procedures of the court and the type of matters which may be the subject of examination by counsel are agreed to have gone a long way to improve the position of the complainant in the trial process of rape and sexual assault cases.
The measures introduced represented a serious effort to allay some of the real concerns of complainants in rape trials without breaching the fundamental principle of an accused's right to a fair trial. The provision to allow separate legal representation where applications are made to the court to adduce evidence or cross-examine about a complainant's past sexual history was aimed at circumventing this constitutional difficulty. As such applications are made in its absence, a jury would be unaware or unswayed by the apparent inequality of representation as between the accused on the one hand and the prosecutor on the other. Having regard to the foregoing, I do not propose to make any alterations to the present position on legal representation in criminal proceedings.
I am grateful to the Minister and I accept what he stated on the potential constitutional and conventional difficulties with full legal representation throughout the trial process. However, it is worth considering how representation rights could be expanded somewhat for victims without breaching the equality of arms principle. I am grateful to Senator Regan for pointing out the European indications that there should be greater representation for victims. It might be that the amendment could apply to post-conviction hearings which deal with sentencing.
I am also grateful to the Minister for outlining to the House the detail of the Sex Offenders Act provision allowing for separate legal representation. As I stated, that was inserted on foot of research we published in 1998 with the Dublin Rape Crisis Centre. In that research, The Legal Process and Victims of Rape, we recommended that limited right of separate legal representation be introduced. We did not recommend a fuller right. However, it is worth examining how the right to representation could be extended not to the full level, as the Minister stated, but to other hearings in the absence of the jury such as post-conviction hearings, where it would improve the trial process experience for the victim. I will not press the amendment at this stage; I will reserve my position until Report Stage, particularly given the time.
Amendment, by leave, withdrawn.
Amendments Nos. 18 to 31, inclusive, are related and will be discussed together.
I move amendment No. 18:
In page 10, before section 7, but in Part 2, to insert the following new section:
"PART 3
NOTICE OF CERTAIN MATTERS TO BE GIVEN TO VICTIMS OF CERTAIN OFFENCES
7.—(1) An Garda Síochána shall give a victim to whom this section applies notice, as soon as practicable of—
(a) every release on bail (if any) of the person accused of the offence or, as the case requires, the offender, and
(b) any terms or conditions of a release of that kind—
(i) that relate to the safety and security of the victim or of one or more members of his or her immediate family or of both, or
(ii) that require the accused or offender not to associate or not to contact the victim or one or more members of his or her immediate family, or both.
(2) In this section, release on bail includes a release on bail—
(a) until the hearing of proceedings,
(b) during an adjournment of proceedings,
(c) until sentencing, and
(d) until determination of an appeal against conviction or sentence.”.
The amendments concern putting on a statutory basis the information that should be given to the victims of crime. Amendment No. 18 concerns the terms and conditions attached where a person is released on bail. We have had various attempts at regulating the situation on bail. We are also aware of the extent of crimes committed by persons on bail.
Progress reported; Committee to sit again.
Business of Seanad.
It is now 5 p.m. and Senator O'Donovan wishes to propose an amendment to the Order of Business.
I propose that we resume after Private Members' business for a maximum period of one hour, if that is agreeable to the House.
Is that agreed?
It would be preferable to resume the debate on another day to allow the process to be completed. We are saying one hour, but it might actually take longer. Having the discussion another day would allow time for reflection on the Bill and the debate that has taken place up to now.
I echo the comments of Senator Regan. I have no problem with being here after 7 p.m. but if this is an attempt to ensure Committee Stage is rushed and completed in one day, I do not support it. The Bill makes significant changes to criminal procedure and I would prefer to see the debate continue on another day. I am anxious that Senator O'Donovan's proposal would not lead effectively to the debate being guillotined. It might well take more than an hour to get through the remainder of the amendments, given that some of them are substantial, particularly those to Part 3 which I have tabled; Senator Regan also has some relating to victim impact statements in Part 2. Thus, it would be preferable to finish the debate on another day.
I have not engaged so far in the Committee Stage debate but hope to do so at the latter stages. I appreciate the Minister's presence, but this is a substantial Bill and an additional hour would presumably not bring proceedings to a satisfactory conclusion. I ask the Acting Leader to arrange the recommencement of the debate on another day. It is important that we try to get this right. Some of us have commitments to attend other meetings tonight but would like to be here for the debate.
I do not think we will get agreement. The order of the day does not provide for——
There is no attempt to rush the Bill through; it is important legislation. Having considered the volume of amendments remaining and their importance, I withdraw my proposal to recommence at 7 p.m. The debate will not be concluded in one hour and it is important that the Bill receive a full hearing in the House.