I welcome the Minister of State, Deputy Stanton, to our new Chamber. I welcome all Members as it is my first time in the Chair in the new Chamber. I hope we will get through the 43 amendments relatively briefly. Is Senator Marie-Louise O'Donnell having a difficulty?
Criminal Justice (Victims of Crime) Bill 2016: Committee Stage
The acoustics are problematic. Most of us wish to hear the Acting Chairman.
I will try to project a little more.
I think there is an electronic problem as well. Perhaps we need to settle as it is very difficult to hear speakers.
I noticed that. I do not know if it comes down to acoustics or that we are a little further away from each other than we might have been previously. I will do my best to try to project my voice and I hope we can get through this.
There does not seem to be any heating.
I am well insulated enough but maybe some other Members are not.
As somebody with a vision impairment, I believe this Chamber is far superior to the last one. That is in terms of getting around and brightness and so forth.
We are only on our second day.
This amendment makes a change to the commencement provisions of the Bill to allow that certain provisions, particularly provisions relating to the use of screens in courtrooms to prevent a victim from having visual contact with the accused person, may be commenced for different courts or areas at different times. The purpose of the amendment is to allow for a phased roll-out of the provisions on the use of screens over time as necessary equipment becomes available in different courts. It mirrors existing commencement provisions in the Criminal Evidence Act 1992 that applied to other special measures for the protection of vulnerable witnesses under that Act.
I have no difficulty whatever with this and it seems to be a reasonable provision from the Government. It is interesting that nearly 40 of the amendments come from the Government. It has happened before. It is happening that there are more and more Government amendments. This raises a little warning in my mind about the preparation of legislation. It comes to the House in a rather unfinished manner.
The Senator is correct and we are proposing 30 amendments today. The majority of these are technical amendments, updating the Bill for criminal evidence provisions introduced by the Criminal Law (Sexual Offences) Act 2017. We passed another Bill recently and we are just updating the Bill to take account of that. We are doing much stuff at the same time. A small number of other amendments provide additional rights for victims giving victim impact statements and during bail hearings. We are trying to keep it updated as best we can.
I thank the Minister of State for his explanation.
Amendments Nos. 2 and 3 are related and may be discussed together by agreement.
I move amendment No. 2:
In page 6, after line 37, to insert the following:
“ “investigating authority” shall include any body which has the responsibility and/or the statutory power to investigate and/or prosecute a criminal offence;”.
I wish to be brief so I will not go on at any great length on the Bill noting its current state. I will take Members through the rationale behind the proposal. Article 4 of the victims directive, on the right to information, provides that all victims of crime have a right to certain information on first contact with the competent authority. The competent authority is not defined by the directive but the European Commission justice guidelines give an indication as to who should fall within this definition. The Criminal Justice (Victims of Crime) Bill 2016 only applies to the investigations conducted by the Garda or Garda Síochána Ombudsman Commission. Such a restriction prevents victims from accessing information in any other form of prosecution or investigation. Any statutory authority with the potential power to prosecute a criminal offence would fall under the remit of Article 4 of the directive, on the right to information.
There is a significant list of bodies falling within the remit, including but not limited to the Health and Safety Authority, HIQA, Tusla, the Health Service Executive and ComReg. These bodies have the power to investigate and prosecute criminal offences. Victims who are natural persons should be provided with information from these prosecuting authorities in accordance with Article 4 of the directive. Similarly, where a competent authority is investigating or prosecuting an offence, it should be obliged to provide all the necessary information, support and protection that would otherwise be provided by An Garda Síochána if it prosecuted. That is the rationale and I would like to hear the Minister of State's comments. I hope we can have some support for it.
I second the amendment, which has been covered comprehensively.
I welcome the Minister of State to the House and the opportunity to be here to debate on Committee Stage of the Criminal Justice (Victims of Crime) Bill. I thank all the non-governmental organisations that have engaged with us, the Minister of State and his officials in the time between Second and Committee Stages. I support what Senator Boyhan said and my amendment No. 3 seeks to do something similar. It is a matter I raised on Second Stage and I am grateful to the Victims' Rights Alliance and others for raising this issue with me and others. We were concerned the Bill did not cover other prosecuting authorities or persons with functions related to the investigation or bringing of the prosecution of an offence conferred by enactments. That would include, for example, the Health and Safety Authority and other bodies. I know the Victims' Rights Alliance shares our view that victims of crime may be victims of offences prosecutable by other entities and agencies. They should not be excluded from the remit of the Bill. That is the intention behind the amendment and I ask the Minister of State to consider it. As it was raised on Second Stage, I hope the Minister of State has had the chance to consider the matter at least. I look forward to his response.
I support the amendments. It seems that the Bill should not be restricted to the Garda Síochána, particularly when there are other agencies, such as Tusla and the Health and Safety Authority etc., which can be involved in these prosecutions. It seems clear these provisions should extend to them. There is also the matter of the right to information. It is very important for the proper conduct of any kind of trial or legal process that the parties involved should have the maximum possible information.
I thank Senators for their work on this. This Bill is quite unusual in that it focuses squarely on the victims of crime rather than the perpetrators. For the first time in legislation, it sets out the rights of victims and focuses on the victims as individuals with different needs and vulnerabilities. The rights provided for in this Bill are valuable and practical rights which would make a real difference to the experience of victims in the criminal justice system. Keep the victims in mind.
We contend that what the Senators proposed in their amendments would significantly expand the scope of the Bill to a range of bodies outside those intended by the EU directive. The Bill focuses primarily on applying the provisions of the directive to victims of criminal offences that are reported to the Garda Síochána. There are, of course, other agencies and bodies which have been mentioned that are investigative and also prosecute, such as local authorities, some Government Departments and specialist authorities such as the Revenue Commissioners, the Health and Safety Authority the Consumer Protection Commission and the Director of Corporate Enforcement. No obligations have been imposed on such bodies in the Bill since the offences they prosecute are mainly of an administrative or regulatory nature. It is principally on the basis that in the context of the directive, there is generally no direct victim of such offences. The victimisation for such offences is often indirect and impersonal, for example tax evasion will affect all tax payers.
Amendment No. 2 does not seem to have any actual effect. Are we on amendment No. 2?
It is amendments Nos. 2 and 3.
It defines the term "investigative authority" but does not make any provision for the use of the word in the body of the Bill. The term does not appear in the body of the Bill so the definition is effectively meaningless.
It could be put in.
I am dealing with what is before me.
Amendment No. 3 aims to apply all the provisions of Part 2 to an authorised person on whose functions relating to the investigation or bringing the prosecution of offences or both are conferred by an enactment. The definition proposed is overly broad, capturing all statutory bodies with a power to investigate and prosecute any offence including those of a regulatory nature, offences that would clearly follow the scope of criminal offences as intended in the EU directive. The difficulty lies in the fact that Ireland does not have a legal distinction between criminal offences and administrative or regulatory offences as exist in most EU countries. The precise scope of the amendment is unclear in that it provides no definitive list of persons or bodies captured. Consequently a victim will not be able to readily identify whether an authority with which he or she is interacting is covered by the Bill. Equally, where it is intended to place statutory responsibilities on a body, those bodies should be clearly identified and identifiable.
I listened to the Minister of State's response and thank him for it. He was not critical of the drafting of amendment No. 3 for which I thank him and thank Mr. Finbarr O'Malley who carried out the drafting with me of that amendment.
I would say with respect that there are contradictions in the Minister of State's response. First, he said the other authorised body or person, such as the Health and Safety Authority or the Director of Corporate Enforcement, are effectively only bringing investigating and prosecuting offences that are regulatory in nature while later correctly saying that in Ireland we do not have a formal distinction between criminal offences generally and administrative or regulatory offences. There is no such formal distinction. There is a long, if not proud, history in Ireland of bringing prosecutions for so-called regulatory offences, such as breaches of health and safety Acts, for offences which might be prosecuted as corporate manslaughter in other jurisdictions. I am thinking of cases such as Zoe Developments where we saw a very large fine imposed on a construction company in respect of breaches of health and safety legislation as a result of which it appeared that an employee had been killed. There is a contradiction there. If our amendment would bring other bodies charged with prosecuting offences into the ambit of the Bill, that was our intention. There is no formal distinction between bodies between the kinds of offences they prosecute and those prosecuted by the DPP. There is no formal categorical distinction of that kind.
The Minister of State also made the point that for many of those so-called regulatory or administrative offences, there is no direct victim. That is true. I accept there may not be a victim in the way that there is a victim of a burglary or assault but if that is the case there should be no worry or concern about bringing those bodies within the ambit of the legislation. If there is no identifiable victim in respect of a large group of the offences which are prosecuted by those authorised persons then the Act will not be effective in that way so there should be no concern about that.
Our definition seeks to provide to bring within the ambit of the Act other bodies that may have a statutory function of bringing prosecutions of offences and that where there are offences and where there is a victim identifiable, then whether we call those offences regulatory or criminal those victims should be entitled to the protection of the Act. That is envisaged by the directive, that it would be broader than simply offences prosecutable through the normal mechanism of criminal offences through the Garda Síochána or the DPP.
If there are no other contributors the Minister of State can reply.
I do acknowledge that there are other bodies that investigate and prosecute. There are many of these, about 30 altogether. The majority investigate and prosecute offences of a more regulatory nature which, as the Senator said, do not have direct victims in the same way as offences investigated by the Garda Síochána. The approach we are taking in this Bill is to focus on offences commonly understood to be criminal in nature, which are primarily investigated by the Garda Síochána. This approach is in line with the spirit of the EU directive and will provide rights to the vast majority of victims.
Regardless of the view that the scope of the Bill should be broadened to cover other bodies with investigative prosecutory functions, it could not be done by way of a general amendment. Each individual body with relevant investigatory or prosecutory functions would need to be identified and appropriate provisions made to apply the necessary sections of the Bill to that body, taking into account the powers, functions and organisational structures of the individual organisation. One would have to be very specific, and the amendment is not.
The law must be clear. The Bill imposes statutory responsibilities and it must be clear on whom those responsibilities are imposed and that they are the appropriate persons in any relevant authority, taking into account their particular roles and functions. This clarity cannot be achieved by a general provision such as that proposed in amendment No. 3.
I am sorry but I cannot accept the amendments for those reasons.
The Minister of State has said that there is a range of bodies. It is worth saying that it is not only bodies such as the Health and Safety Authority but also the HSE, HIQA, ComReg and so on also have functions here. There are some cases where there will be direct victims, that they would be excluded from the ambit of the Act if an amendment such as this was not accepted. I would have been open to an amendment to my amendment, or a different kind of an amendment that named a group of authorities and put them in a schedule to the Bill, for example. According to what the Minister of State says, that would have been a preferable approach. What I do not hear from the Minister of State is a principled objection to expanding the remit of the legislation to cover other prosecuting bodies where there is a direct victim.
It seems to me there could be a way of crafting an amendment that deals with the issues he raises and that names specific bodies in a schedule. It is unfortunate that at a very late date our schedule was altered so that we are taking Committee and Report Stages together today. This seems to be the sort of situation where we could usefully have had a dialogue between Committee and Report Stage on how we might encapsulate the spirit behind my amendment and that of Senator Boyhan and place it in a format that is more narrow and meets the issues raised by the Minister of State and his officials.
I am a little concerned to realise that both Committee and Report Stages are being taken together today. It is very bad parliamentary practice. I am not blaming the Minister of State for that but it is bad parliamentary practice for the reasons adumbrated by Senator Bacik.
I am not fully sure why all the bodies should be specifically named and listed. We often hear in this House that when one does that kind of thing, it is bad practice because the list may turn out to be not exhaustive and complete. The phraseology of investigating authority could include anyone who has statutory, and-or statutory power to investigate, and-or prosecute a criminal offence and covers the material quite satisfactorily.
I endorse what Senators Bacik and Norris have said. It is disappointing.
The Government has a number of amendments here. It did not seek amendments in this regard. I do not think it was anyone's intention to exclude the Health and Safety Authority, the Health Information and Quality Authority, HIQA, Tusla, the HSE, ComReg or any others. I take on board what Deputy Stanton said about the definition, but he is the Minister of State. He could have engaged or created a situation where we could have amended amendments but he did not do so. It is on his watch. He is the Minister of State. If he is committed, is he happy that groups such as the Health and Safety Authority, HIQA, Tusla and the HSE are excluded? That is what it amounts to. Is Deputy Stanton, as Minister of State, happy to preside over that? If he had concerns, surely he and the Department would not have a problem? By his own actions and the fact he has not brought in a proposal here, it is difficult at this late stage, as Senator Bacik said, for us to tweak it now.
We have to be mindful of the Minister of State's advice. If it is necessary, I am happy to withdraw the amendment, but I do not really want a load of people running up the stairs and voting, as they will, with the Government on this. I say to the Minister of State that it is disappointing that he did not see fit to take on board the spirit of this. Forget about who is proposing, who has seconded or who is speaking on it. I do not think anyone really envisaged a situation where we would exclude these particular bodies from this legislation. I want to put that on the record and would like a response from the Minister of State about it.
Without extending the debate unnecessarily, I should have said that there is at least a debate to be had about the definition of the original EU directive. I am grateful to Maria McDonald and the Victims' Rights Alliance for the information they have supplied us with on this. Their point is that "competent authority", the term used in article 4 of the victims directive, is broader than a law enforcement authority. It envisages that authorities beyond the Garda or the Garda Síochána Ombudsman Commission would be covered. It is clearly up to each national jurisdiction to decide what a competent authority would be. It seems that, at the very least, some sort of consideration should have been given to what competent authorities might, in Ireland, have prosecuting functions that would affect individual victims beyond the mere regulatory offences of the sort that we talked about with the health and safety legislation, although there are many cases where we have seen direct victims even in what we might call technical offences.
I note that this Bill has not completed its journey, given the large number of Government amendments and that we know it is going back to the Dáil. Perhaps the Minister of State might indicate if he would seek to pursue something such as an amendment of the Schedule of relevant bodies in the Dáil. I am sure we would be able to expedite a return to the Seanad to confirm that. I recognise a very generous offer was made by my colleague, Senator Boyhan, with regard to not pressing it. We could argue that it would be better to have erred on the side of inclusion rather than on the side of omission and that we should seek to include all these investigating authorities and then if that needed to be narrowed in any appropriate way, it could be done in the Dáil. Alternatively, perhaps the Minister of State has ideas as to what he might put forward with regard to an attached Schedule in the Dáil. Will he indicate that to this House?
I thank the Senators for their sincerity, work and thinking on this matter. I am always open to considering what the last speaker has suggested. There are other issues. This is focused on offences that are criminal in nature and are investigated by the gardaí. We are focusing on this where there is a clear victim. We also have to think about the structures, powers and capacities of the various bodies that have been mentioned and whether it is appropriate to have them in the first place. I will take on board the last suggestion but I do not want to promise that we will do something. We will certainly consider it further. I am anxious to get this moving and to get it done. It is very important for victims. The Minister and the previous Minister for Justice and Equality have engaged with victim support groups throughout the development of this Bill. Much work has gone into it and all these points were considered, but it was not agreed to name all of those bodies, for the very good reasons that I have outlined. I accept the sincerity of Senators and it is an important debate to have but it is going to make it overly broad and bring in bodies that do not have the structures, powers, capacities or functions to do what we are talking about. We need to have a focus on the gardaí and on the ombudsman, and also on the individual victims of crime - people, not bodies, as such. It should be nothing too broad. That is why I am not accepting these amendments, but I welcome the debate. It is important.
The Minister of State is talking about concentrating on the victims of crime. For example, in the case of the Health and Safety Authority and the instance that was referred to by Senator Bacik, Zoe Developments, in which an employee was killed, that is a victim. It is a fairly extreme form of victimhood when one loses one's life. That seems to me to be an argument that is in accordance with the Minister of State's suggestion that it should be concentrated on victims.
Is Senator Boyhan pressing amendment No. 2?
I move amendment No. 3:
In page 8, between lines 35 and 36, to insert the following:
“(3)(a) Part 2 ‘Right to Information’ applies to an authorised person, while performing functions referred to in paragraph (b), in the same way that it applies to the Garda Síochána and the Ombudsman Commission; and references in that Part to the Garda Síochána and the Ombudsman Commission shall be construed accordingly.
(b) In paragraph (a) ‘authorised person’ means any person on whom functions relating to the investigation or bringing and prosecution of offences, or both, are conferred by an enactment.”.
Amendments Nos. 4 and 43 are related and may be discussed together by agreement. Is that agreed? Agreed.
Amendment No. 4 inserts a new provision into the Bill to repeal two sections of the Criminal Law (Sexual Offences) Act 2017, which are being expanded upon in this Bill. This is a technical amendment to ensure the smooth commencement of provisions of the 2017 Act and in this Bill, some of which are both amending the same provisions of the Criminal Evidence Act 1992. Nothing in this amendment alters the substance of the provisions introduced in the 2017 Act.
Amendment No. 43 amends the Long Title of the Bill to include a reference to the amendment of the Criminal Law (Sexual Offences) Act 2017 and is required as a consequence of amendment No. 4. It also a reference to the Bail Act 1997 consequent to the proposed changes in amendment No. 38.
I draw the Minister of State's attention to something in the Criminal Law (Sexual Offences) Act 2017. It is, by and large, a reasonable Act, particularly in the provision for children, but in the section which criminalises the purchase of sexual services, I warned at the time that it was highly dangerous and would lead to an increase in violence against women and an increase in disease. A report was recently published which shows that there has been an increase of 61% over the last year in acts of violence against women who provide these sexual services. That is a matter of real concern. I ask the Minister of State to ask the Government to move forward the review of this Bill, which will not take place for three years. It is urgent that it takes place now.
I thank Senator Norris. I am sure the Minister of State will take that message on board.
Amendment No. 5 in the names of Senators Victor Boyhan, Colette Kelleher, Lynn Ruane, Frances Black, Alice-Mary Higgins, Niall Ó Donnghaile, Ivana Bacik, Lorraine Clifford-Lee, Catherine Ardagh, and Diarmuid Wilson is ruled out of order due to a potential charge on the Revenue.
Will the Acting Chairman explain how amendment No. 5 creates a charge? I do not see it. It is just about providing information.
I would be interested to know.
How does it create a charge? This is a load of rubbish. I would like to see this provision deleted from the Standing Orders of the House which prevents us from discussing a matter that creates a charge on the Exchequer.
I thank Senator Norris. It is not-----
The other House made a balls of the economy. I do not think we could make a greater balls of it.
I will read out the note on it. It is not actually in Senator Norris's name, but in the name of a number of other Senators, including some from my own party. For the information of the House, I did not make the decision; the Cathaoirleach did. Amendment No. 5 seeks to amend section 6(9) of the Bill, to mandate the referral of victims to specialist support services, including, where relevant, medical support or appropriate specialist services, including psychological support services, and services providing alternative accommodation.
The amendment must therefore be considered to be out of order in accordance with Standing Order 41 on the grounds that it would have the effect of imposing a charge upon the Revenue. I am only the messenger. The decision has already been made. The amendment has been ruled out of order. It is not of great value for us to have a debate on the amendments that have been ruled out of order when there are 41 amendments to be debated-----
-----but I will allow Senator Higgins to make a brief contribution.
I completely accept what the Acting Chairman said but it shows how absurd this ruling is, and it has been abused by every Government with which I have had to deal over the past 30 years.
We have had this discussion before and I am sure we will have it again. I call Senator Higgins.
This amendment relates to the satisfaction with section 6, as it stands. If the amendment proposing that deletion of the word "may" and its substitution with the word "shall" is not made, we have a concern this section would only provide that the victims may be referred to appropriate supports. While we do not want to have a lengthy debate on this, perhaps at the next interval when the Minister of State comes in, even when we come to the next section, he might indicate that it is still within his power to ensure those resources are allocated to provide that people are able to be referred to appropriate supports. He might offer us reassurance on that issue, even if we cannot put forward this amendment.
I wish to assure Members that this was the Cathaoirleach's decision and the rules are in place. The Minister of State did not rule the amendment out of order. That decision had nothing to do with him.
I understand but the Minister of State can perhaps still address the concern that is at the heart of the amendment even if the amendment cannot be debated. Perhaps he can do that briefly, as I appreciate we do not have much time.
Unfortunately, I cannot speak to an amendment that has been ruled out of order.
Will the Minister of State ensure resources are allocated to this area?
Resources will be allocated as required. Perhaps we can talk about it afterwards but I cannot go into this here.
I thank the Minister of State for that.
I move amendment No. 6:
In page 12, between lines 10 and 11, to insert the following:
"(g) any summary of the reasons for a decision under any one or more of subparagraphs 2(c), (d), (e) and (f) in this section shall contain sufficient information to enable the victim to decide whether to request a review of the decision, in any case in which such a review is possible;".
I thank the Minister of State for bringing forward this Bill and the Rape Crisis Network of Ireland for its help in trying to ensure this Bill works as best as possible, as the Minister of State said, for the victims of crime. I also thank the other Senators who have co-sponsored the amendments I have put forward. Senator Higgins rightly pointed to the fact that there is considerable interest in this and effort being made. It is disappointing to see debate truncated in this regard given the amount of work we have put into it and the interest there is in it.
The amendments proposed are measures to support in particular, as the Minister of State rightly said, the victims of the crimes of rape, sexual assault and sexual violence, which are crimes particularly but not exclusively experienced by women. They are horrible life-altering crimes that, as recent media commentary and commentary by Members of these Houses shows, at best are often misunderstood. At worst, such commentary betrays conscious or unconscious deep-rooted and deep-seated misogyny, and this can rear its head in all parts of our public system, among gardaí, the Director of Public Prosecutions and the courts. These are crimes in which, uniquely, the victim can be blamed for the awful thing that happened to her. We rightly do not blame the frail pensioner for being robbed on his or her way home from the post office and we do not blame children for being victims of child abuse. Why do we still continue to blame victims of the crimes of rape, sexual assault or sexual violence and insinuate or infer that they are somehow to blame for the crimes that have been forced upon them against their will? The amendments I have put forward are about supporting the victims after they come forward to have a reasonable experience and a fair trial and not to be on trial.
Speaking directly to amendment No. 6, the Director of Public Prosecutions does not prosecute the majority of sexual crimes identified in the Garda files it receives. At present, victims of sexual crime receive only a very brief and general letter from the Director of Public Prosecutions in response to their request for reasons the decision not to prosecute was made. There is no reference to the individual circumstances of their case. This cannot be said to be sufficient information for victims to decide whether to request a review of the decision. This amendment seeks to ensure victims get sufficient information to enable them to decide whether to request a review of the decision in any case in which such a review is possible. I ask the Minister of State to consider that.
I agree with what Senator Kelleher has said. Often victims get a very bland and general letter from the legal authority, the Director of Public Prosecutions, and it does not address the particular circumstances of the case, as has been said. That cannot be construed as sufficient information for them to decide whether to seek a review. The practicality of this can be illustrated by the fact it can be done without infringing the right of others such as the accused, and it is already being done, for example, in England and Wales where victims of sexual crime and other victims entitled to enhanced measures can request a face-to-face meeting with the representatives of the Crown Prosecution Service to question the prosecuting authorities as to the reasons for their not proceeding. They are very often not successful. Only about 10% lead to a review, but that is an important illustration and example from an adjoining jurisdiction on which we model quite a lot of our legislation. I would put that point to the Minister of State.
Does any other Member wish to come in before I call the Minister of State?
I appeal to the Minister to consider this amendment carefully because, as my colleague rightly described, this is an area of crime in which there can be a revictimisation and very negative experiences and insinuations made. If, for example, the reason a prosecution is not proceeding is a purely technical one or relates to evidence or some other legal reasons, it gives people peace of mind if they know the reason a prosecution is not being proceeded with or pursued. It is important in terms of people being able to move forward in their lives after such an experience. It is also important that there would be no suggestion made and that people would have a clear defence against any suggestion or insinuation that their experience, or what happened to them, was not valid and that they were not victim of a crime.
I am sure the Minister of State can imagine the peace of mind a clearer letter could give to a victim of crime. It could help make them decide if they wished to pursue the case further in terms of a review, but it would also give them a sense that they were being heard and that their particular experience was being recognised. As amendments have been brought forward and the Bill will go back to the Dáil, I urge the Minister of State to consider taking this amendment on board.
I also appeal to the Minister of State to take this amendment on board. I acknowledge the work that the Victims Rights Alliance has done on this. It has been engaging with parliamentarians in both Houses on these important and serious matters. We are talking about victims of crime, which is a very serious issue. Most of the work that has been done on these amendments has come from advocacy groups, from people who have had personal experience and people who have been involved in groups. Any of the amendments that have been put before the Minister of State today have not being done lightly. They have been given a great deal of thought. That point is worth saying.
It is worth recapping this amendment. It is proposed that where a victim of an alleged offence has been assessed under section 14 and the Garda Síochána or the Garda Síochána Ombudsman Commission, as the case may be, has identified specific protection needs relating to the victim, which are special measures within the meaning of this section, the prosecutor shall inform the court of the outcome of the assessment and, importantly, at the beginning of the trial of the offence at the latest. That is very important. That was not simply made up. It is something about which a number of people communicated with our office and with other Senators. This is an important amendment. All the proposed amendments are important. The Minister of State should give this amendment serious consideration.
I do not want to prolong the debate on this amendment. It is important to show as broad a consensus across the House on this amendment as is possible. The proposer of the amendment eloquently explained the very important rationale for this amendment.
I reiterate the calls from my colleagues for the Minister of State to consider this amendment, not just because of the spirit in which it is offered up but also because of the very positive, practical change that it could bring about for people who have been victims of sexual crime.
I thank the Senators for their thoughts on this. The impact or the effect of the amendment would be to require that sufficient information be given to a victim to allow him or her to decide whether to request a review of any decision not to proceed with or to discontinue an investigation, not to prosecute or to discontinue a prosecution or a decision to deal with a person other than by trial. These are the four areas that are referred to as subparagraphs 2(c), (d), (e) and (f) in the amendment itself. The challenge with this is that it is very subjective. It would require An Garda Síochána, the Ombudsman Commission or the Director of Public Prosecutions to know what information would, in any particular case, be "sufficient" for the individual victim to decide whether he or she wishes to request a review of the decision in question. What would be sufficient for one person might not be sufficient for another. It is very subjective. Who decides what is sufficient?
Quite apart from the fact the relevant authority may not know what information would be sufficient in any given case, it is only a decision not to prosecute which may be reviewed. There is no right to a review of other decisions included in the amendment. In respect of a decision not to prosecute, a summary of the reasons on which this decision was made is the appropriate information to give to a victim in the circumstances and will provide a sufficient basis, in the vast majority of cases, upon which to decide whether to seek a review.
The challenge here is that the amendment is very subjective. One person's sufficient is not another person's sufficient. Who decides what is sufficient information? Furthermore, the amendment only pertains to decisions not to prosecute. For these reasons, we are not in a position to accept the amendment. If the Senators think about this, they will see that our reasons for not accepting it are valid. The amendment, if accepted, would cause major difficulties.
The other issue that arises is technical in nature. The amendment is not inserted in the correct position in the section. It has been placed within the list of information which a victim may request. It would need to be a new subsection in the section rather than a new paragraph in the list. If Senators look at what is actually qualifying the section here, all the subsections are qualified earlier on and it would not make sense to insert the amendment here. Thus, from a technical perspective it is wrong but more importantly, it is completely unworkable. Who decides what is sufficient? The amendment is unworkable from that point of view.
I simply do not agree with the Minister of State that the amendment is too subjective. In a situation where information is requested, it should be perfectly clear to any reasonable person what is the sufficient information required. The other point I would make is that there is not a limitless mass of information available in any case. The information could be relatively restricted. It is incorrect to say that there would be a vast amount of information out there that had to be sifted through to determine what is relevant. Any reasonable citizen would be in a position to judge what is or is not sufficient. I do not think it is a matter of subjective judgment to any significant degree.
It takes enormous courage for a person to come forward, particularly in a case of rape or sexual assault. There can be valid reasons for the DPP not being in a position to prosecute but the victim should go away with very firm knowledge of that and an understanding of why that is the case. That is the issue that victims of these types of crimes are raising with us. They are not getting sufficient information. It is subjective from the point of view of the DPP to decide what is sufficient information. The DPP is making these decisions. It takes a subjective overview in terms of saying that it cannot prosecute. There can be a valid basis for that but the decision is made by a person and is, therefore, subjective. In light of the courage it takes for people - women in particular - to come forward, they should go away feeling that they were heard and respected but that the case could not proceed because of X, Y or Z. Women are telling us that is not the case. The issue of sufficient information must be considered further and I hope the Minister of State is open-minded enough to do so.
The Senator makes the point for me in many ways by saying that a person in an office will make the decision and that is sufficient information. I would hope that he or she would be encouraged to give as much information as is needed to a victim in the circumstances to enable the victim to decide whether to seek a review. That is what we are talking about here. It would be impossible for somebody to decide what somebody else might think is sufficient. What the Senator is now saying is that a person in an office, whether that be in An Garda Síochána or the DPP, should decide what is sufficient, which makes the amendment irrelevant in many ways, if that is the case, but we are not even saying that. We are not saying who decides. We are saying "sufficient information" and leaving it hanging there, so who makes the decision? Is it the victim? Can the victim say that he or she did not get sufficient information? One victim might say that the information received is sufficient while another might say that it is not. We have not defined it and do not know what it is. The Senator has been suggesting that it is somebody in an office who decides that the information is sufficient. I think it is unworkable as it stands and would ask that the amendment not be pressed. I am anxious to move on because this is very important legislation. There are 16 different subsections in this section dealing with information and it is quite detailed. The spirit of the Bill is that sufficient information will be supplied to enable victims to make a decision, which is what the Senator is seeking. I do not believe it is even necessary to insert this amendment into the legislation because the spirit of the Bill is to open the process up for people and to provide sufficient information. I cannot accept the amendment, not only because it is in the wrong place but also because it is so subjective that it would be unworkable. I ask that the Senators would withdraw the amendment so that we can move on and get the Bill through the Houses because people are waiting for this legislation.
I do not want to prolong things either and would commend Senator Kelleher and Rape Crisis Network Ireland for their work on these amendments, which I am delighted to support. Having listened to the dialogue, I take the Minister of State's point that there are technical reasons he is against this particular amendment, No. 6. However, a very important principle has been expressed to him, which is that victims of crime are simply receiving what one might call a generic response currently in terms of decisions not to prosecute. I know, as does Senator Kelleher, from speaking with victims and survivors of sexual abuse or rape that we have a very high level of attrition between the reporting of the rape or sexual offence and the decision to prosecute it. In a large number of cases a decision not to prosecute is taken and it is extremely frustrating for victims to receive what they would see as a very generic reason or explanation for that. That is the spirit behind this amendment. Perhaps the wording "sufficient information" is not, in itself, sufficiently precise but the spirit of this amendment requires greater consideration. It should be possible to draft an amendment that requires that the victim be provided with information specific to his or her case to facilitate him or her in making a decision to request a review. It is information that is tailored to the individual case that is sought and not just a generic reason of insufficient evidence to proceed or that the DPP was of the view that a prosecution would not succeed, or something of that nature.
The issue here is the spirit of the amendment. I am sorry that there will not be any time between the Committee and Report Stages to enable consideration to be given to a better or more precise form of drafting. We all agree that this is very welcome legislation. We all note that people have been waiting a long time for it. I know that, as do all of us here, but we have a lack of legislation in the Seanad for this week and next and could easily have given a day or two, or even a week, between Committee and Report Stages-----
-----without any great slippage, particularly given how many Government amendments have been tabled on Committee Stage in the Seanad. The Bill will have to go back to the Dáil in any case and another week to try to give a bit more time to consider whether there could be a more precise way of drafting amendments where we are all in agreement with the spirit of them would have been welcome. That, to me, would have seemed the better parliamentary procedure.
Senator Niall Ó Donnghaile indicated.
My point has been made by Senator Bacik.
As suggested by Senator Bacik, perhaps we need better drafting along the lines of "information specific to the case" rather than "sufficient information" because the latter seems to be taking us down a blind alley. That was the intent of my amendment.
If the Minister of State can assure us that he will look at that at the next Stage, I will be happy to withdraw it.
Traditionally, not only in questions of sexual matters but in any prosecution, it has been the case that where the person involved wanted to find out the reason, the Office of the Director of Public Prosecution would not give him or her the reason. That was the traditional stance of the DPP. The argument that it is technically in the wrong place could be resolved. The Minister of State could very easily table an amendment and move it. It would not be a difficult manoeuvre. On the definition, something on the lines of providing information germane to the question of whether or not to appeal would define it.
I am open to any other suggestions. However, section 7(2)(d)(i) and (ii) state that information shall be provided in relation to a decision not to prosecute a person for the alleged offence and that a summary of the reasons for the decision must be given. It also refers to information regarding the victim's right to request a review of the decision referred to in section 7(2)(d)(i) and the procedure for requesting the review. It is quite comprehensive. One would expect that every effort would be made to give as much information in the summary of reasons for the decision as is necessary. I would expect that to be the case because this Bill changes the whole tone and approach to victims.
The issue here is that the word "sufficient" is too subjective to put into legislation, and I think Senator Bacik agrees with me, that one could not work it. I take the spirit of what is intended. Senators want as much information as possible to be made available so that when someone is making a decision on whether or not to request a review of the decision not to prosecute, he or she would have as much information as he or she needs. The spirit of the legislation flows from that anyway. I will reflect on this a little but I am not sure how we would make that change or add something because it is implied that it is there already. If someone has something more specific, perhaps we can do it, but at this Stage I would ask the Senator to withdraw it and we can move on and get the rest of it done. Many of the amendments are very technical so it should not take long.
The Minister of State and his advisers have been very helpful and informative but the dialogue illustrates very clearly why it is a real mistake to take Report Stage immediately after Committee Stage. I know the Minister of State is indicating that it is not his responsibility-----
I understand that point. That was decided by the House on the Order of Business today, so the Senator should not blame the Minister of State.
The Leas-Chathaoirleach interrupted me while I was in the middle of saying that it is not the fault of the Minister of State and I am not blaming him at all. It is a very considerable disadvantage and the House was completely wrong to do it. The Members were disregarding their own parliamentary function. It is disgraceful that the House should take such action this morning.
I thank the Minister of State for his last response in which he looked a little more deeply at this. He said he would expect people to get the information they need, but what we hear is that people do not. We must listen to the voices of victims who say that the letters they receive are generic. We are happy to try to find a legislative approach on that and a wording that will work but there may also be scope in the language used for the reasons. It seems to be the case that people receive letters with the result of the decision but they are not informed about the reasons behind it. That is in there but it is important to make that clear and for the Minister of State to make that clear that his understanding is that the DPP's office does not simply state that it has decided not to prosecute because of insufficient evidence, but that it may give specific reasons. It is there but the Minister of State must give a lead to clarify that is the intended interpretation.
I move amendment No. 7:
In page 23, between lines 34 and 35, to insert the following:
“(3) Where a victim of an alleged offence has been assessed under section 14 and the Garda Síochána or the Garda Ombudsman Commission, as the case may be, has identified specific protection needs in relation to the victim which are special
measures within the meaning of this section, the prosecutor shall inform the court of the outcome of that assessment at the beginning of the trial of the offence at the latest.”.
In accordance with the spirit of the amendments that have been proposed, and in order to give the victim a reasonable and fair hearing in the court and for the information pertinent to all matters being considered, this amendment seeks to ensure that the protection needs of the victim are brought to the court's attention. This amendment will help to ensure that the victim's perspective is not overlooked. It is about strengthening the perspective of the victim and making sure that all the relevant information relating to the victim, particularly if he or she has protection needs, is salient to any considerations to be made in the courtroom.
Amendment No. 7 provides that the prosecutor shall inform the court of the outcome of an assessment where the assessment has identified special protection needs. It is not entirely clear what is meant by the outcome of the assessment. If the outcome of the assessment is understood as the report of the results of an assessment and that report were to be given to the judge, there would also be an obligation to disclose it to the defence. Assessments will frequently contain sensitive and confidential personal information regarding the victim and his or her personal circumstances, including vulnerabilities to victimisation and intimidation. I am sure Senators would agree that it would be highly inappropriate for such information to be disclosed to the defence. The Bill has been drafted very carefully to prevent assessment reports from becoming part of the criminal proceedings to prevent disclosure to the defence and any possible cross examination of the victim regarding its contents. Assessments may also contain information on previous offences or other previous conduct by the accused which pose a risk to the victim. If the case were a summary case, it could be prejudicial to the rights of the accused as the judge would have been provided with detailed information on the victim, the offender and the offence from the victim's perspective.
If outcomes are intended to be limited to the details of the special measures which have been identified as being of benefit to the victim, this would need to be clearly defined in the amendment. In any case, it is difficult to see what benefit there is to the victim if the details of the special measures, but not the reasons the victim might needs them, are provided to the court. It would be impossible for the court to make a determination on whether the measure was required without further details. In addition, many of the special measures concerned require an application by the prosecution so that the court would not be in a position to act on the assessment in the absence of such an application.
This amendment, while well intended, lacks clarity and carries a significant risk of curtailing the assessments themselves and requiring the release of sensitive personal information to the defence which includes potentially prejudicial information to the court. We have to be very careful and this Bill have been very carefully drafted. There are huge risks in this amendment even though it is well intended. I know what the intention is but it contains massive risks. Again, I ask the Senators to reconsider pressing the amendment.
I hear what the Minister of State is saying about the process, but the absence in court of information on a victim needing protection, particularly where the defendant is the person against whom protection is needed, represents a huge gap and a lack of knowledge in ensuring court proceedings are reasonable and fair, with the victim being protected.
With respect to the Minister of State, there is a blurring of lines in that what he has described is not what the amendment is putting forward. It is very clear in the amendment that it is a question of the outcome rather than the reasons for the assessment, about which we have just had a debate. It is simply a matter of whether the person needs protection. The decision is made by a separate body, separate from the court. An Garda Síochána and the Garda Síochána Ombudsman Commission identify that there are specific protection needs and examine whatever evidence or sensitive information might be relevant, as the Minister of State suggested. They come with an outcome based on the procedure followed in the case, not evidence. They are not stating it is evidence in the case. Nobody is suggesting the assessment would be presented as evidence in the case. They would simply be saying it was relevant information in how the court was processing the case where there was a need for protection. That is a very clear and separate process. Anybody going into something like this may have other needs such as a need for translation services. It is a matter of the processing of the case and the assessment would not be offered as evidence. I am not a lawyer - there are esteemed lawyers in the House - but I do not understand why this would require disclosure of the process used in the assessment of the outcome. It is simply a safety consideration made by a separate body and the information is offered to the court. It does not involve sensitive information on either an accused or the defence and the information would not be presented as evidence. Considering that the information is procedural, there may have been confusion on the Minister of State's part about what he believed was actually being suggested. To my mind, it seems to be very clear. I do not see the confusion the Minister of State suggested.
In a way, we are back to the same argument the Minister of State made about matters being subjective. I do not see how this concerns matters from the victim's perspective only. What we are dealing with are objective facts that have been established. There is nothing that comes directly from the victim's perspective; they are matters of fact established by the proper authority.
I note from the amendment that the prosecutor "shall inform the court of the outcome of that assessment at the beginning of the trial of the offence at the latest". There would be no choice. It would have to happen. Section 18 provides that the prosecution shall have regard to the assessment report in determining what, if any, special measures to apply for. The prosecution will be in a position to determine, in all the circumstances at the time of the trial, whether the special measures identified in the assessment are in the interests of the victim and, if so, what information the court needs to be aware of to support the application for a particular special measure. The Bill has been very carefully drafted to maintain a separation between the assessments and the court to ensure the assessments can comprehensibly assess the needs of the victim without any fear of sensitive personal information being released to the defence or potentially prejudicial information being given to the court. These are serious matters. The legislation has been drafted in a very careful way to protect the victim. If the Senators are insisting that the prosecutor "shall" inform the court of the outcome of an assessment, it would be giving a lot of information to the defence which it might not be in its bests interest to have. It could be detrimental to the prosecution and the victim and end up doing the opposite of what the Senators intend. As this is very serious, I ask the Senators not to press the amendment in order to allow the prosecution to have a free hand in making decisions. I ask them not to impose what they propose in this legislation because, let us not forget, the prosecution will be acting on behalf of the victim. The prosecution has to be free to decide what the court needs to be aware of and to support the application for a particular special measure.
It is not clear what the words "outcome of that assessment" mean. Do they mean a special protection measure is being put in place? What is the particular protection measure? Why is it being done? One is into all kinds of stuff that one does not really need to be into. We want to keep the matters separate. I, therefore, plead with the Senators to have second thoughts on the amendment.
If the word "shall" was changed to "may", would the Minister of State accept the amendment?
That is implied. As it stands, there is no reason the prosecution cannot have a free hand. If we were to include what is proposed, it would actually tie the prosecution to making information available that might not need to be made available and, in some cases, should not be.
I understand the Minister of State's argument, but I am asking him whether, if the word "shall" was changed to "may", he would accept the amendment.
I would have to consider it very carefully because there are other issues to be considered. There is a reference to an assessment at the beginning of the trial and information being prejudicial during it. There are other things implied also. I do not believe the amendment is needed. It is not necessary in the first place and would possibly do more harm than good.
Amendments Nos. 8 to 13, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.
Amendment No. 10 was discussed with amendment No. 8.
It was not.
The Senator had the option of discussing it. As he well knows, he is wrong. Does he wish to speak to the amendment?
No; I just want to point out that it has not been discussed.
I thank the Senator.
I do not want to discuss it. There is no point in telling lies.
Unfortunately, amendment No. 14, in the names of Senators Ivana Bacik and Colette Kelleher, has been ruled out of order because it involves a potential charge on the Exchequer.
This is my amendment.
On the section.
On the section. I have tabled an amendment to the section seeking to have the establishment of an ombudsman for victims of crime provided for. It is unfortunate that it has been ruled out of order. I accept the Leas-Chathaoirleach's ruling as I must, subject to all provisos. Senator Norris has already raised the nature of those rulings and the rule itself.
The concept of an ombudsman or one-stop-shop to which victims of crime could have recourse is provided for in recital 62 of the directive, which states that member states should consider developing sole points of access or one-stop-shops to address victims' multiple needs. Over many needs, we have seen a very patchy network of victims' support services across Ireland. We carried out some research on this in Trinity College some years ago. There is real inconsistency in terms of the supports available to victims. This legislation will do a lot to help that but we felt, and were supported by the Irish Human Rights and Equality Commission in this regard, that the idea of an ombudsman for victims would be a worthwhile one to include in a Bill of this kind.
In its observations on this Bill, the Irish Human Rights and Equality Commission recommended a single point of contact for victims to register a complaint about their treatment in the criminal justice system and argued that this would assist in securing great transparency, consistency and foreseeability of treatment.
While the ruling has been made and we cannot debate the amendment itself, I again ask the Minister to consider the concept of the establishment of an ombudsman for victims. It should also be noted that part of our amendment also referred to reporting on general and specialist training, which is an issue dealt with in amendment No. 41 tabled by Senator Boyhan, which has been accepted, so I know we will be dealing with some of the issues that were raised in amendment No. 14 when we get to amendment No. 41.
I thank the Leas-Chathaoirleach for his latitude in allowing me to speak me to an amendment that was ruled out of order.
Does Senator Norris wish to speak?
No, thank you. Everything has been said.
Amendments Nos. 15 and 34 are related and may discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 15:
In page 30, between lines 20 and 21, to insert the following:
"(ii) by the insertion of the following words after "the relevant offence": "or was under 18 years of age at the time that he or she made a formal statement to a member of An Garda Síochána in respect of a relevant offence,".
The rationale behind this amendment is the fact that this Bill does not include any universal right to give evidence by video link for victims over the age of 18 who do not have a mental disorder and who made a complaint to An Garda Síochána while they were under the age of 18. Victims who were over 18 at the time of the trial but who made a formal complaint while under the age of 18 should retain the right to give evidence by video link. My colleagues and I propose that section 13 of the Criminal Evidence Act be amended to allow this provision to be afforded to prosecution witnesses who are over 18 at the time of the trial but who made a formal complaint while under the age of 18 so that they retain the right to give evidence by video link.
I support Senator Boyhan. I understand the Minister of State is accepting amendment No. 34. I hope that is the case because it would be good to have at least one amendment accepted. This is an important amendment.
Go on Minister.
It seems we have a situation where if people make a complaint when they under the age of 18, they would have understand that they would be in a position to avail of a video link. That should be maintained even when the prosecution takes place after the person making allegations has passed the age of 18. It seems fair and just to me and I hope the Minister of State will accept amendment No. 34.
I hope Senator Norris's indication was correct because it would be very good to see some amendments being accepted. It is an important principle to which these amendments are directed, namely, to protect those under 18 when providing the statement in the first place.
I concur with all those speakers and I am encouraged that the Minister of State is open to accepting amendments Nos. 15 and 34.
I am not sure where that came from. It certainly did not come from me. I am happy to accept any amendments that I can accept and if I am persuaded that they will not pose difficulties or that they are necessary.
Amendment No. 15 is to be inserted into section 13 of the Criminal Evidence Act. However, it is not exactly clear where it is supposed to go. The words "the relevant offence" do not appear in the section and if the text is inserted as "a relevant offence", it does not make any sense. It is not, therefore, clear as to what exactly this amendment should apply.
It may be that the Senators are seeking to extend the presumptive right to give evidence via live television link, which currently applies to children, to any person who is under 18 at the time of making his or her complaint. I can see merit in that proposal. However, there is a risk that it may result in persons of the same age and in the same circumstances being treated differently by the courts merely on the basis of the date on which a formal complaint was made.
While there are clear reasons to treat those who are children at the time they are giving evidence differently to adults, which has been upheld by the courts as proportionate, it is not at all certain that the same could be said for treating some adults differently to others depending on how early each person made a complaint. One has two adults and one is saying that one of them has to have video link because he or she made a complaint ten years ago while the other cannot have video link because he or she made a complaint two months ago. That is what the Senators are saying.
This could result in older adults being given greater protection than younger adults just because it took longer for one victim to come forward than another. It may also have the effect of putting pressure on a child victims to make a formal complaint at an earlier time than they are ready in order to avail of the enhanced rights. Senators should think about that for a minute. That is a serious point as well.
Amendment No. 34 seeks to extend provisions allowing video-recorded statements to be admissible in court to persons over the age of 18. As with amendment No. 15, I see merit in what is being proposed but this is a significant shift away from established practice. The protections are considered proportionate on the basis of the particular vulnerability of, and the need to safeguard, children. Extending this particular right to adults bears the risk of an unfair interference in the rights of an accused person to face his or her accuser and would need to be carefully examined from a constitutional perspective.
I also point out that the amendment is technically flawed in that it applies to any case in which this part applies. That language has been removed from the Criminal Evidence Act by this Bill in order to extend certain other provisions of the Act to victims of all offences. The amendment also fails to make consequential amendments to section 15 of the Criminal Evidence Act which would be required if this amendment was accepted. They are just technical issues.
As I have said, these amendments have merit and are worthy of consideration. However, as drafted, they would lead to inconsistent treatment of people in the same circumstances and would require careful consideration to avoid the risk of unintended consequences or unconstitutionality. There may be a need to re-examine the Criminal Evidence Act in a more comprehensive way to look at many of the points raised in this area during the progress of this Bill and I will certainly give a commitment to look into that.
For the reasons outlined and because of the technical flaws in the amendments, I am afraid I cannot accept them. The issue of video link concerns children and once people go over a certain age, they are no longer a child even though they might have made a complaint earlier on. There are serious issues around this and I again ask the Senators not to press the amendments.
With due respect, these amendments do affect children because if people are children when they go to make a complaint to An Garda Síochána, that is when they are initiating their concern around a potential criminal action against them. In respect of the experience of children as they seek to navigate our legal system and our courts, we see a huge fall-off where people drop out of the system. We see this in the case of sexual assaults, certainly for women, and we believe it is true for children. I do not have the figures to hand but I know they are also high.
People start a prosecution and drop out because they are frustrated by delays or obstructions in the legal process. It becomes a weapon that can be used effectively by somebody and it can be a form of revictimisation, as delaying a case can ensure a child will pass the threshold of 18 and have to give evidence in person. The distress created by the person knowing he or she may pass the threshold of being 18 and be forced to testify is distress that is visited upon a child. There is concern. The example the Minister of State gave was one of a case going to court ten years after somebody went to a garda versus someone who went last year. I hope those who make statements to gardaí in respect of being victims of crimes as children are not, as a standard practice, waiting ten years. I hope the more normal practice is that the procedures flow from the initial statement to the Garda. There is a concern about distress, potential disadvantage and perhaps a disincentive to pursue justice being visited upon children by the fact they are perhaps 16 or 17 and they may hit the age of 18 before the case and they could lose the right to video testimony.
With respect, I suggest that if technical issues about exactly where this is placed have been identified as concerns they are to be fixed on Report Stage in the Dáil. They are minor technical matters regarding the exact section. We see these as procedural changes. The Government has very often had to make adjustments on Report Stage. If we had a separate Report Stage debate it would be an opportunity for any such tidying. We cannot allow ourselves to lose the substantive points because of such technicalities. It is something for the Department to address as it navigates the next Stage of the Bill.
The Minister of State has been very cogent in explaining his reasons for not accepting amendment No. 15 and I accept his argument. With regard to amendment No. 34, the Minister of State said it would stop the accused facing his or her accuser, but I understand the evidence will be given by the complainant on a live TV or video circuit. This means they would be able to confront them. As I understand it, and the Minister may correct me on this, the accuser could be cross-examined by TV or video link.
The Minister of State has given a very cogent response, but there is a bigger issue as Senator Higgins has pointed out. The bigger issue is the need to look beyond our current adversarial system in terms of protections for vulnerable witnesses. We see in other jurisdictions such as England and Wales, which have a traditional adversarial system, recognition we do need to put in place more protections for vulnerable witnesses beyond those who are under 18. We need to be more radical in our thinking and our approach to criminal evidence. I speak as somebody who practised as a criminal defence barrister for years. Aggressive and hostile cross-examination of witnesses, particularly in sexual offence cases, is a real problem, as the Minister of State is well aware, in our criminal justice system. These amendments are really designed to try to put more protections in place for vulnerable witnesses beyond those who are under 18 at the time of the trial. It is great to see protections being put in place for child witnesses, but we also need to think about the need to constrain our style of aggressive cross-examination of vulnerable witnesses beyond those who are under 18 at the time of the trial.
I have listened carefully and I do think the amendments have merit. They are worthy of consideration and there is no doubt about that. However, as drafted, there is a risk they could lead to inconsistent treatment of people in the same circumstances. We must give a lot of consideration to avoid unintended consequences or even the constitutionality of it. A better place to look at this would be in the criminal evidence Bill, and examine in a comprehensive way the points raised here, including those by Senator Bacik. The Senators have raised some very interesting points but they need to be teased out more. We will do this and examine it. I am not making a big issue of the technical flaws but they are there. At this stage, I cannot accept the amendments because of this.
The main points we make are the unintended consequences and treating people in the same circumstances in different ways, whereby we have two adults of the same age and one can give evidence by video link and the other cannot. There are issues that need to be thought through and teased out. I take the points Senator Higgins made very well, and I thank her for them, with respect to children reaching 18, but there is also the point that before they are ready to come forward pressure is put on child victims to make a formal complaint at an earlier time in order to avail of the enhanced rights. There might be something also happening on that side of it. This is complicated enough. I thank the Senators for raising the issue and debating it, but we need to come back to it in the criminal evidence Bill.
I have heard what the Minister of State has said. He has been here for approximately an hour and according to him everything has merit. He came here with 40 amendments and he was aware of all of our amendments. One has to ask what are we doing in Seanad Éireann. I have been here for a year and a half. Are we wasting our time? The Minister of State has had the advantage of the experts, specialists and consultants. He is on top of his brief. He is a very pleasant man. It is very hard to disagree with a very pleasant man who is an able and competent Minister of State, and I do not say this in a patronising way. He knows this business very well. He has come in here and kept talking about the amendments having merit. Can we hear something more positive? When we come back after tea, are we to sit here for another hour and hear the same old story about merit? Will the Minister of State give us any solace or support for anything we propose? It is quite depressing. I ask the Minister of State to see it from the other side of the House. I know the amendments are technical. I take this on board and I withdrew the first one, but this is worth putting on the record. The Minister of State had the advantage of coming here with amendments and stating there are technical reasons, good reasons or unintended consequences that mean they should be accepted. However, I am coming up with another proposal, which the Minister of State has not considered, and this is disappointing, particularly when the Minister of State has the resources, capacity and people at his back to do so. We are here because we have been asked to do a lot of this by other groups and I want to push this to a vote.
I accept what the outcome of the vote will be, but it should come to a vote. Let us not be afraid of votes in this House-----
-----because that is what we are about. We are going off for an hour for tea and I think there should be vote. Let us have a vote. Let us put it on the record.
The Senator is right when he says we have the privilege of having expert analysis from the Department, the Office of the Attorney General and beyond. The expert advice to us is not to accept these amendments for the reasons given. This is the expert advice. I will be more than happy to accept amendments if I am advised otherwise, but I am advised by the Office of the Attorney General and beyond that there are risks and dangers and that the amendments require further consideration. I must point out to the Senator I spent 15 years in opposition drafting amendments, and very often amendments are very useful for debating purposes to raise issues, debate issues and highlight issues. If we get advice from senior legal sources that there are risks and challenges and even dangers in some amendments we must take this advice. I cannot come in here and accept amendments for the sake of accepting amendments. I have consistently acknowledged the work the Senators have done in raising these issues and debating them. If an amendment is tabled that I can accept I certainly will do so. I will be more than happy to do so, and I have done so in the past in this Chamber. Unfortunately, the amendments today, for the reasons I have outlined, demand further debate and further consideration and I do not want to delay the Bill any further. I have tabled 30 amendments today and I know many of them are technical. We have been working on this.
Is the amendment being pressed?
- Bacik, Ivana.
- Black, Frances.
- Boyhan, Victor.
- Conway-Walsh, Rose.
- Devine, Máire.
- Gavan, Paul.
- Higgins, Alice-Mary.
- Humphreys, Kevin.
- Kelleher, Colette.
- Mac Lochlainn, Pádraig.
- Mullen, Rónán.
- Norris, David.
- Ó Clochartaigh, Trevor.
- Ó Domhnaill, Brian.
- Ó Donnghaile, Niall.
- O'Sullivan, Grace.
- Ruane, Lynn.
- Warfield, Fintan.
- Ardagh, Catherine.
- Burke, Colm.
- Burke, Paddy.
- Butler, Ray.
- Buttimer, Jerry.
- Byrne, Maria.
- Coffey, Paudie.
- Coghlan, Paul.
- Conway, Martin.
- Daly, Paul.
- Gallagher, Robbie.
- Hopkins, Maura.
- Horkan, Gerry.
- Lawless, Billy.
- Leyden, Terry.
- Lombard, Tim.
- McFadden, Gabrielle.
- Mulherin, Michelle.
- Murnane O'Connor, Jennifer.
- Noone, Catherine.
- O'Donnell, Kieran.
- O'Donnell, Marie-Louise.
- O'Mahony, John.
- Reilly, James.
- Richmond, Neale.
- Wilson, Diarmuid.