The committee is in public session. As we are in public session, all mobile phones should be switched off as they cause interference even in silent mode. The meeting has been convened to consider Committee Stage of the Criminal Justice (Victims of Crime) Bill 2016. I welcome the Minister of State at the Department of Justice and Equality, Deputy David Stanton, and his officials to the meeting.
Criminal Justice (Victims of Crime) Bill 2016: Committee Stage
I must say that the management of this meeting will be incredibly difficult because we have literally just received the list of groupings and a letter saying that a load of amendments are being disallowed. I am not in any way blaming anyone but we cannot do our work like this. There must be a better way of notifying people. Our offices have done considerable work on preparing contributions around amendments. It would be really helpful if we could get this stuff a bit earlier than 8.50 a.m., ten minutes before the meeting.
The Deputy's criticism is valid. As Chairman of the Oireachtas Committee on Justice and Equality, I only had sight of the list of disallowed amendments in the five minutes preceding the commencement of today's meeting. I echo Deputy Daly's appeal to the Bills Office to ensure that decisions regarding amendments are distributed as early as possible. Perhaps even the grouping list could be made available more speedily so that members would know exactly where amendments relate to each other. Does the Minister of State wish to comment on this point?
It is out of our hands as well, as the Chairman is aware. We got notice of it at the same time as members last night so it is done independently by the Houses of the Oireachtas. They make those decisions. Obviously, if we had received them earlier, it would save us a pile of work as well. I spent a lot of time last night going through these amendments and preparing discussion points so it would be helpful but, obviously, there is a lot of pressure on people. I certainly agree that it would be useful if was done a bit earlier but that is the way it is and the way it has been for quite a while.
It needs to change.
Perhaps the Chairman could take it up with the committee chairmen.
Bad practice precedent does not mean it is acceptable. It is not. I accept that it affects the Minister of State as much as it affects members. We will proceed in the hope that these so-called working - at times, unworkable - arrangements change.
Before I begin, could I make a few opening remarks?
By all means.
I am very pleased to have the opportunity to present this Bill here today on behalf of the Tánaiste and Minister for Justice and Equality. There is no need for me to convince members of the importance of this Bill and the very real difference the enhancements of the rights of victims contained in this Bill would make to the experience of victims in the criminal justice process.
Deputies were already aware of this as was evident from the contributions that there was support from all parties in the House when it was introduced.
We are proposing 29 amendments on Committee Stage, many of which aim to clarify and simplify the Bill's text or correct drafting errors. Several more substantive amendments address the issues raised by victims' rights groups and other interested bodies. Many of these address issues also addressed by Opposition amendments.
The Tánaiste and Minister for Justice and Equality intends to bring forward several amendments but we are not in a position to do so today. Several amendments will be required to section 26, addressing amendments to the Criminal Evidence Act 1992. These are mainly technical amendments required to take account of changes made to the Act by the Criminal Law (Sexual Offences) Act 2017. The Tánaiste and Minister for Justice and Equality also intends to introduce amendments on restorative justice on Report Stage. I will discuss this in more detail when we discuss other amendments on that issue.
I fully appreciate Deputies want to make this Bill as beneficial and effective as possible. For my part, I am open to take on board their issues and concerns and work with them to improve the Bill. I am looking forward to this engagement. We are all more or less on the same page from the amendments I have seen.
I thank the Minister of State for his opening statement. It is, as Deputy Clare Daly said, a complex process ahead of us and I request members' patience in this regard.
Amendments Nos. 1, 2 and 4 have been deemed out of order as they represent a potential charge on the Exchequer.
Amendments Nos. 3, 7, 33, 41, 42 and 44 to 47, inclusive, will be discussed together.
I move amendment No. 3:
In page 6, to delete lines 36 and 37, and in page 7, to delete lines 1 and 2.
The purpose of amendments Nos. 3 and 41 is to clarify and elaborate on the information about the final decision in a trial about which the Garda or the Director of Public Prosecutions, DPP, will be required to provide to a victim where the victim has requested such information.
Amendment No. 3 deletes the definition of “final decision” from the interpretation section.
Amendment No. 41 sets out in section 7 the details of the information the victim should receive on such a decision. These details now specifically include any sentence imposed on the person and any orders related to or ancillary to the judgment.
Amendments Nos. 7 and 33 delete the definition of significant developments from section 2 and insert it into section 7 for clarity, as the term only appears once in the Bill. The definition of “significant developments” in the context of the investigation contains some important details about the information which a victim is entitled to receive on request under section 7. These include the arrest of a person, the charging of a person and the release on bail or remand in custody of a person. The amendments retain all of these factors.
Amendment No. 33 also adds an additional factor concerning any bail conditions which relate to the list of significant developments which a victim is entitled to receive. While it is likely bail conditions will be included in the existing text which provides for information relating to the release of a person or the bail of a person, the amendment will make this explicit.
Do members wish to speak on these amendments?
Can I speak to amendment No. 4?
Amendment No. 4 has been ruled out of order.
Can we not just air some points about it?
I have just been advised the formula which will allow the Deputy to make a relevant comment is when I put the section up for agreement.
That is excellent.
Amendments Nos. 5 and 43 will be discussed together.
I move amendment No. 5:
In page 7, to delete line 37.
Amendment No. 43 deletes section 7(2)(n) which provides for a victim to receive information about a child who has been remanded in custody to a remand centre. However, section 7(2)(k) already provides for a victim to be provided with information about the release or escape of a person who has been remanded in custody. A person in this subsection includes a child and, accordingly, section 7(2)(n) duplicates what is already provided for in section 7(2)(k), making it is unnecessary.
Amendment No. 5 deletes the definition of a remand centre in section 2.
Amendments Nos. 6, 18, 148, 152 and 153 will be discussed together.
I move amendment No. 6:
In page 7, between lines 37 and 38, to insert the following:
" "restorative justice” means any process whereby the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the criminal offence through the help of an impartial third party;".
These are a particularly important group of amendments and we will be pushing strongly for them to be included. They are to ensure that when restorative justice is provided, it will only take place in circumstances where safeguards are respected.
The reasons given for the absence of restorative justice in the Bill were that the services are not available nationwide and there is no statutory basis for the services. I do not think either of these reasons is good enough to leave it out of this legislation. Restorative justice is an incredibly valuable process for both the victim and for the perpetrator. Obviously, the victim is given a chance to confront somebody who has committed a crime which many have found incredibly empowering. For the perpetrator, it can be a first step in understanding the damage of what they have done.
Many of the NGOs, non-governmental organisations, in the area have commented on this and have actively argued for its inclusion in the legislation. Article 4 of the victims' directive already states that victims must be informed on first contact with the Garda of the available restorative justice services. Article 12 provides that member states shall take measures to safeguard the victim from secondary and repeat victimisation, from intimidation and from retaliation when providing any restorative justice services.
That is what is in the grouping of amendments. I will not read it. The Deputy and the Minister of State have read it. There are a number of safeguards. I gave an example on Second Stage where a judge recommended restorative justice in wholly inappropriate circumstances where a victim of child sex abuse was asked by a judge if she wanted to engage in restorative justice with the perpetrator. The perpetrator had not accepted the facts of the case and had not accepted the guilty verdict, and was not in any place to engage. Obviously, the person was put on the spot.
It is important to have the provision, but we need to have safeguards, which is the purpose of this grouping of amendments.
I agree with what Deputy Daly has said. The main purpose of the legislation is to transpose the directive. The directive has a definition of restorative justice. That is why the right of access to information on restorative justice and the right to safeguards on the use of restorative justice should be included in the Bill. I note that a reference to restorative justice was included in the scheme of the Bill and I believe it should be included in the legislation.
I thank the Deputies for their amendments which aim to provide for information and safeguards for restorative justice practices in the Bill. I fully agree that such provision is necessary and I assure Deputies that I intend to make provision for the rights of victims who participate in restorative justice practices in the Bill. I regret that I have not been able to bring forward these amendments today. As I informed the House on Second Stage, there are legal issues regarding the most appropriate text for the provision, given the non-statutory nature of restorative justice practices available in the State. I have just recently received preliminary advices from the Office of the Attorney General on the matter.
I am happy to inform the committee that a provision, not dissimilar from those proposed in the amendments before us, will be possible. Ensuring that the specific wording of the provision does not interfere with or prevent the operation of existing restorative justice services is very important, as is protecting the provisions from legal challenge. I ask Deputies to give me the time to bring forward amendments that will meet these aims.
Legal advice has also suggested that specific provision should be made for the rights of victims engaging in restorative justice practices in the case of child offenders. The Children Act 2001 provides for a role for victims in the administration of cautions and in family conferences under the juvenile diversion programme. Deputies will appreciate that care needs to be taken to ensure an appropriate balance between the rights of victims and the rights of child offenders in these circumstances. Amendments to provide the necessary changes to the Children Act are under consideration, in consultation with the Garda, the Irish Youth Justice Service and the Young Person's Probation Service. I assure Deputies that the necessary amendments will be brought forward during progress of the Bill.
Does the Minister of State have anything further to add?
No. That is it for the moment. I fully agree with what the Deputies are saying here. It is technical and complicated. We are all on the same page here. I ask the Deputies to give us time to introduce the appropriate amendments on Report Stage. We want to get it right. We have recently received advice from the Attorney General on the matter. It will be done as people envisage. We are on the same page; there is no disagreement. However, some technical issues need to be resolved.
That is fair enough. Given the high level of engagement by NGOs and human rights organisations, I ask the Minister of State to provide the amendments early so that they can have a look at them. Obviously, we reserve the right to come back in and propose changes. Hopefully the Minister of State will be able to accommodate that.
I welcome what the Minister of State has said and agree with what Deputy Daly has said. Obviously the objective is to get it right. The Minister of State has indicated that it will be included, which is good news.
Is the Deputy withdrawing his amendment at this stage?
On the basis-----
He has the right to reintroduce on Report Stage if he so chooses.
It would be helpful, in the interim period, in deference to the work already done by the two Deputies, that there would be a line of communication and that it would not just present on the eve on Report Stage. I ask Deputy Daly if that would be in order.
Yes, it would. Fair play.
I move amendment No. 7:
In page 8, to delete lines 1 to 6.
Amendments Nos. 8, 112 and 113 are related and may be discussed together.
I move amendment No. 8:
In page 8, to delete lines 7 to 12 and substitute the following:
" "special measure" means a measure referred to in section 16 or 18;".
Amendment No. 112 makes a small amendment to the text of section 18 to clarify that in determining whether to make an application for any special measure during court proceedings, the prosecutor must have regard to the protection needs identified. It also clarifies that it is the specific needs identified, and not just the fact that protection needs have been identified, that must be considered.
Amendment No. 113 inserts a new subsection into section 18, setting out the special measures available to a victim during criminal proceedings. The purpose of the amendment is to clearly identify what is meant by special measures during criminal proceedings as some of these measures, such as the exclusion of the public and the restriction on the questioning of a victim on his or her private life, are in this Bill and others are in the Criminal Evidence Act 1992. The approach is in keeping with section 16 concerning special measures during investigations. The new subsection will be numbered subsection (1) which will involve designating the existing section 18, as subsection (2).
As a consequence, amendment No. 8 amends the definition of "special measure" in section 2, to refer to the measures set out in section 18.
The amendments do not alter the substance of the section.
I move amendment No. 9:
In page 8, line 16, after "offence" to insert the following:
", regardless of whether an offender is identified, apprehended, prosecuted or convicted and regardless of the relationship between the offender and the victim".
This amendment is also about transposing the victims directive. It gives the definition contained in recital 19 that a person would be considered a victim regardless of whether an offender is identified, apprehended, prosecuted and so on. The purpose is to ensure that the services for victims provided for in the Bill would not be dependent on a victim making a formal complaint or an offender being prosecuted or convicted.
This is particularly important when we consider the Garda Inspectorate reports on sexual violence. There have been repeated instances of gardaí being called out to a domestic violence situation and things being said such as, "Ah sure, there's two of them in it" or "Don't annoy him. He won't come back." Those comments are wholly inappropriate. It is like saying, "Move on - nothing to see here", and then serious assaults being committed after that and great difficulty in the victim making a statement.
Having this wording in the Bill would place an obligation on gardaí and also give supports to victims. The Garda Inspectorate reports refer to other unsolved cases of sexual assault where victims were subjected to pressure from gardaí to either make a statement or drop it, in which case they would not be beneficiaries of the Bill even though they are clearly victims. This is about giving them the support they clearly need and specifying that in a manner as provided for the directive.
The reason for the amendment is that the definition of the victim in the Bill is relatively narrow. There is a concern that unless somebody can prove that an offence was committed against them, they might not qualify within the definition of victim. That would be very unfair to a person who was on O'Connell Street last night and beaten over the head. Even if nobody was ever apprehended, that person is as much a victim as somebody who is able to identify the offender. I am conscious that it should not be opened up to such an extent that nearly everyone is covered by the definition of victim, but we need an amendment to ensure it is not simply limited to the conviction of an individual of an offence.
I thank the Deputies for tabling the amendment. I understand what the Deputies are seeking to achieve but I do not believe that the amendment is either necessary or represents an effective manner of achieving the desired end. I will explain why.
In the first instance, it is necessary to state clearly the de facto position in the Bill. There is nothing in the definition of "victim" to suggest in any way that an offender might have to be identified, apprehended, prosecuted or convicted for a person to be a victim for the purposes of the Bill. In fact, it is clear that in many circumstances, for example, at first contact before a complaint has even been made, it would be impossible for an offender to have been apprehended or prosecuted. Moreover, there is no suggestion that the relationship between the victim and the offender could have any bearing on whether a person is a victim.
Why put it in? Is it to be sure? There are two reasons. The first is that a single definition of "victim" is used throughout the Bill for clarity and consistency. As such, that definition must be appropriate to all the provisions where the word is used. Many provisions in the Bill specifically require that certain conditions, which are excluded in the amendment, are met. For a victim to receive information on the charging, remand or trial of an accused, it is necessary for an offender to be identified and prosecuted. For a victim to receive information from the Prison Service, it is necessary for an offender to have been convicted of an offence. For a garda to conduct an assessment and take into account the particular vulnerability of a victim of violence in a close relationship, he or she must have regard to the relationship between the victim and the offender.
The intention seems to be to amend the definition of "victim" to apply it regardless of all these factors. In the case of many provisions throughout the Bill that would create contradictions in its application.
There is a benefit to maintaining the definition exactly as it is in the directive to ensure any future judgment of the European Court of Justice will directly apply to our national legislation. The definition in the Bill has been drafted to ensure that any person who has suffered any harm as a result of a criminal offence is a victim and is, therefore, entitled to avail of rights under the Bill.
For the information of Deputy O'Callaghan, the Government amendment to section 4 will address to some extent the general concerns raised. That amendment is broader in nature and will ensure that a victim need only assert that he or she has been a victim of an offence and suffered harm. No proof is required. It is all on the side of the victim in this case. A victim need only say that he or she is a victim. That is covered in section 4.
I take the point the Minister of State is making but I remain unsure. Previously, we included this definition in the general scheme of the Criminal Justice (Victims of Crime) Bill. It was recommended by the Irish Human Rights and Equality Commission that the definition, as we have amended it, should be included to clarify the situation.
I understand the point made by the Minister of State to the effect that there has to be parity of access to information. However, if the perpetrator has not been prosecuted, then there is no court case to which the relevant person would be entitled to information. Therefore, it does not really matter that we specify it. Clearly, the information in question does not exist, so no one would be required to give it to the person in question. Given that the organisation is the Government's human rights watchdog, I tend to favour keeping it. I do not see it as being messy. It is present in recital 19 to the victims directive. It has been included previously. The IHREC has recommended that it should be included.
I have listened to what the Minister of State has had to say. We are all seeking the same objective. My concerns relates to the definition. It is rather narrow. I am unsure whether the Minister of State is prepared to look at it before Report Stage. I have no wish to be divisive at this stage but the objective we are all seeking is the same. That is all I have to say.
The definition of "victim" on page 8 states:
"victim" means a natural person who has suffered harm, including physical, mental or emotional harm or economic loss, which was directly caused by an offence.
Anything that we put in after that does not make any major difference because the person is recognised as being a victim and that person need not prove that he or she is a victim. One people say they are victims, then they are victims under the legislation. It is a consistent definition used throughout the Bill.
It is in the recital of the directive rather than the main text for the reasons stated. In fact, the definition in the Bill is wide; it is not narrow at all. It does not need to be qualified in any way because it already encompasses what the Deputies have said. It is already there. I would be concerned that the amendment would have the effect of narrowing down the definition rather than widening it. There is no need for it. We can look at it again on Report Stage, if necessary. We can reflect on it again.
Before bringing in either of the two moving Deputies we will hear from Deputy Brophy, who has indicated.
I was going to say something but the Minister of State has addressed it. It is on page 8. By qualifying the definition we run the risk that an interpretation could be made at a later stage that is in conflict with the section. We would be narrowing it. The purpose of the amendment is to broaden the definition or ensure that the definition is as broad as possible. I would have thought that we would achieve the opposite by inserting qualifications. At a certain point, they could be used to narrow the definition. If the Minister of State is willing to look at it again, that is grand. I would caution on that point.
Deputy O'Callaghan and Deputy Daly are next, in that order, please.
I am prepared to consider it until Report Stage. The Minister of State might look at it as well. We all want to ensure the same objective, that is, to get as broad a definition of "victim" as possible. I have listened to the Minister of State and part of what he has said is persuasive. I still have some concerns. I will consider it prior to Report Stage and perhaps the Minister of State will do the same.
We can do that. Part of the problem is that some of the organisations we have referenced have highlighted the point in respect of members of An Garda Síochána being called out to an incident and not treating it as an offence. The concern or follow-on is that they might not understand the obligation in terms of giving the information, support and protection that we are providing in the Bill. They may take the view that only two people are involved and that, therefore, it is not an offence. However, specifying it might get over that problem. Anyway, if the Minister of State is looking at it for Report Stage, we can reconsider it then.
In response to what the last two Deputies have said, Minister of State, are you prepared to look at it over the period?
Perhaps it is also relevant in the context of what Deputy Daly has said. I am equally cognisant of the views expressed externally to committee members.
Certainly, we will look at it. There is no problem there. Obviously, we will take on board anything Deputies have to say with respect to revisiting or going back to this on Report Stage.
I am keen to make this point. All a victim has to do is to say: "I am a victim of an offence and I have suffered harm." Once a person says that, then the supports have to kick in. That is the thrust, genesis or essence of the Bill. A "victim" means a person who has suffered harm. Once a person says that he or she has suffered harm, then the supports kick in.
Amendment No. 10 clarifies the point. The idea is to have consistency throughout. It is already in the Bill. It is implied and embedded. We do not need to expand or qualify it in any way. Certainly, Chairman, we will examine it on Report Stage. If it helps, we will certainly examine it again and come back to it.
Do I take it that amendment No. 9 is withdrawn at this point?
We are now taking section 2, Deputy Daly. We have completed address of all the amendments. I have proposed the question on section 2. Do you wish to come in at this point?
Yes. We have to put it on record. We are being prevented from broadening the protection that is in place for victims of crime where other State agencies or statutory organisations are involved. We were trying to do precisely that with this group of amendments and the definition of the competent or investigating authority. That has been ruled out of order because of costs.
I appeal to the Government to look at that prior to Report Stage. It was strongly suggested by the Victims Rights Alliance that, in the context of other entities such as the Health and Safety Authority, it might bring us much closer to implementing the victims directive, which is what we are supposed to do, and have a positive effect on victims in cases where crimes are being investigated by other statutory bodies like Tusla.
The term "competent authority", which is used in the directive, is broader in meaning than that of "law enforcement authority". That is what we are seeking to do. It was not supposed to be just confined to law enforcement authorities, it was supposed to be broader. We are looking for any statutory authority which has the power to investigate and prosecute criminal offences to fall within the definition of a "competent authority" if it deals with victims who are people - natural persons and so on. I think it would be very positive. Not including those organisations prevents victims from accessing information from those organisations in a more timely and appropriate manner. I am making an appeal to the effect that the Government might include it in light of the fact that we are prevented from doing so.
Does any other member wish to comment? I am very conscious of the authorship of the issue. It was brought before us by the spokesperson for the Victims Rights Alliance. In respect of further correspondence relating to the issue and the organisations referred to by Deputy Clare Daly, I would share her concern in this regard and echo her request for Government to look at this in a serious way in advance of Report Stage. Would the Minister of State like to respond?
This is a criminal justice directive so we must be very careful and keep that in mind. In other member states, there is a greater divide between the civil and the administrative. This is a criminal justice directive dealing with criminal matters, which is something Deputies might want to consider.
The amendment specifies that we are only talking about other statutory authorities that have the power to investigate or prosecute criminal offences or both. The amendment says that. The Minister of State is right. That is what it is but organisations like HIQA and the Health and Safety Authority have those powers. There are probably not loads of cases, although there might be. There are plenty of cases where the victim is a person. They are out there. It would bring us much more in line with the directive were we to broaden the definition because it is broader in the directive. The European Commission justice guidelines talk about how the term "competent authority" is broader than that of "law enforcement authority". Those guidelines refer to how the competent authorities acting in the criminal proceedings under the directive are determined by national law. The guidelines say that this does not exclude, for example, customs or border agencies if they have the status of law enforcement authorities. There are a number of agencies that have power in criminal cases and they should be included.
There is no further comment at this point. The Minister of State has noted the Deputy's request.
Amendment No. 10 is grouped with amendments Nos. 11 and 137 to 139, inclusive. I am advised that if amendment No. 10 is agreed, amendment No. 11 cannot be moved. Members should note that acceptance of amendment No. 10 involves the deletion of section 4.
I move amendment No. 10:
In page 9, before line 1, to insert the following:
"Application of Act
4. (1) The provisions of this Act shall not apply to a decision referred to in section 7(2)(c), (d), (e) or (f)* which is made before the commencement of the provisions concerned.
(2) The application of this Act is not dependent on the commission of an offence having to be established (nor is it dependent on establishing whether the person concerned suffered any harm caused by an offence).”.
Amendment No. 10 substitutes a new section 4 that contains two principal changes. The amendment removes the general limitation on the application of the Act in respect of criminal proceedings that are instituted before the commencement of the Act. I am satisfied that the very few provisions in the Bill which if applied to existing criminal proceedings could potentially compromise those proceedings are adequately safeguarded by an interests of justice test within those proceedings. The second change is the inclusion of a new subsection (2), which provides that it will not be necessary to prove that an offence was committed or that harm was suffered in order for the legislation to apply. The purpose of this amendment is to clarify that it is sufficient for a victim to assert that he or she has been the victim of an offence and has suffered harm to avail of the rights provided and no proof will be necessary.
Amendment No. 139 amends section 26 to assert the same proviso into the Criminal Evidence Act 1992 to ensure that a prosecutor will not have to prove any elements of the offence or the harm suffered as part of an application for special measures on behalf of a victim. Amendments Nos. 137 and 138 are consequential amendments required to amend the shoulder note and numbering in section 26.
The floor is open to any members who may wish to comment.
It appears that the effect of the amendment is that a person cannot avail of the provisions in section 7(2)(c), (d) and (e) if the offence occurs prior to the commencement of the Act but that he or she can avail of the provisions contained in section 2. The relevant ones are that a person cannot get information relating to a decision by the DPP or a decision not to institute criminal proceedings but that he or she would be able to get information in respect of other matters such as significant developments in the investigation of an alleged offence. If, therefore, an offence occurred ten years ago, notwithstanding the fact that this legislation will only come into play on enactment, the person will be able to get information about any significant development. Is this correct?
That is it.
I oppose the section because it limits the right of victims of crime who are currently in the criminal justice system. The directive came into effect in Ireland in 2015, even though we have not enacted the legislation to give effect to it. While it should not be retrospective, limiting the rights of victims so that it only applies to criminal proceedings initiated after the Bill comes into force means that victims who are currently in the criminal justice system will be prevented from exercising their rights. In that sense, it probably creates a two-tier system of criminal justice and could be in breach of the victims directive given that the latter applies to all victims, not just those whose cases were initiated after a certain date. It would be a bit unfair that some victims would have access to supports that would minimise the risk of secondary victimisation, including testimony aids, victim impact statements and special protection measures, but others would not. I seek to remove the section to ensure that a two-tier system does not exist.
In terms of people looking for information and the point made by Deputy O'Callaghan about historical cases and information from the DPP as to why a decision was taken not to proceed with a criminal prosecution, there are people out there whose lives have been ruined by unanswered questions as to why a prosecution did not take place. Some people carry this burden for a very long time. I would have no problem with them getting that information and the DPP providing it. There should be transparency.
The lack of transparency in the DPP's office is something that people find difficult to take. It has revictimised many people who have not received answers about horrendous crimes committed against family members, including death.
I listened carefully to Deputy Daly. She is opposed to section 4 in its entirety, but many of her objections will be met by my amendment. The Deputy also opposes the provision that limits the Bill's application as regards information on a decision to end an investigation, not to bring a prosecution or to deal with a person other than by a trial. From a practical perspective, to make all historical criminal investigations subject to the provisions of this Bill would be administratively and operationally impossible. In many cases, the relevant information would not be available or maintained in a manner that would meet the requirements of the Bill, as it would never have been envisaged at the time of the investigation. Reviews of historical decisions not to proceed with prosecutions would also generally be pointless and reversing such decisions would not be possible. That is not the intention of the EU directive anyway and would be an ineffective use of the valuable resources of the Garda and DPP in particular. I hope that the Deputy will be satisfied that the revised section 4 meets many of the concerns that she has voiced.
I accept that the points about the DPP were not supposed to be the purpose of the victims directive, but I thought they should be included. I will re-examine the amendment. Perhaps it covers the broader point. We reserve the right to table an amendment later.
I will make just a brief comment before I put the various issues to members. Deputy Daly's recording that she opposes the section reflects on the section as it stood before this amendment was put before members. Is that not the case?
Amendment No. 11 cannot be moved, as the section has been changed by virtue of the Minister of State's amendment being accepted.
I will withdraw my opposition to the section, but I reserve the right to consider the matter and possibly table an amendment later.
I am not quite sure if I followed that particular sequence, but I will take the secretariat's guidance on that one.
This section has a substantial body of amendments. There are 19 in total, although I can be corrected on that. Amendment No. 12 is ruled out of order, as already advised, because it represents a potential charge on the Revenue as does amendment No. 13. Both amendments are in the name of Deputy Daly. For Deputy O'Brien's information, having just arrived, there are notices on amendments that have been ruled out of order. While the Chair's signature is appended, the decision is not made here.
Amendment No. 14 is grouped with amendments Nos. 15, 29 and 30, all being related. Amendment No. 30 is a physical alternative to amendment No. 29. Amendments Nos. 14, 15, 29 and 30 may be discussed together.
I move amendment No. 14:
In page 9, to delete line 27 and substitute the following:
“(a) services providing for victims, including where relevant, medical support, appropriate specialist services including psychological support services and services providing alternative accommodation;”.
This is a straightforward amendment.
Do other members wish to contribute at this stage? If not, I will invite the Minister of State to respond.
I thank the Deputies for these amendments. As they stated, there are a number of objectives in this group of amendments on the provision of victim support services. I will address each in turn. I am sorry, but does someone else want to speak?
I am sorry, but I am lost. We are on a group of amendments. Do I have amendments in this group?
Yes. The group comprises amendments Nos. 14, 15, 29 and 30. Deputy Daly is, indeed, the mover of amendments Nos. 15 and 30.
Just to remind Deputy O'Callaghan, he is down for amendment No. 29. I have asked repeatedly that, if members wish to-----
Sorry. I will be brief on amendment No. 14.
I will revert to the Minister of State.
I only just copped the grouping. Amendment No. 14 is simple and was proposed on the advice of Rape Crisis Network Ireland to provide more detail of the kinds of support that victims should be informed of on first contact with the authorities for the avoidance of doubt. The Minister of State will surely say that gardaí would specify medical supports, appropriate specialist services, psychological supports and alternative accommodation, and maybe they would, but maybe they would not. Some gardaí might not consider alternative accommodation to be a necessary support. Some might not be aware of the full benefit of, for example, recommending to someone counselling services and other psychological supports. I see no harm in including this provision. The organisations at the coalface believe that it would be an addition.
Amendment No. 28 has been ruled out of order. Amendment No. 30 concerns referrals to appropriate support services. The rationale for this is that section 6(8) provides that a "member of the Garda Síochána or an officer of the Ombudsman Commission... may, where a victim consents, arrange for the victim to be referred to a service" whereas the victims directive refers to "shall". The directive also refers to victims having access to confidential victim support services and so on in accordance with their needs. The amendment's reference to "an appropriate and/or specialist service" is an attempt to bring us into line with the victims directive such that gardaí shall arrange a referral to services. This is about tightening up definitions.
Not to overlook Deputy O'Callaghan, but if he would like to-----
No, the points have been made in respect of my amendment No. 29.
Very good. We will go back to the Minister of State.
I thank the Deputies for these amendments. As they stated, this group contains a number of objectives on the provision of victim support services. I will go through each amendment in turn.
Amendments Nos. 14 and 15 elaborate on what support services are to be included in the term "services" by including some types of service but not others. This might be ill advised. The term "services providing support for victims" is well enough understood in practice in the criminal justice system and among gardaí in particular not to require further elaboration. It also has the benefit of being broad enough to encompass new types of service that may emerge in future. To define in law what is envisaged by these services could also lead to one or more specialist services falling outside the definition, with potential challenges to their future funding as victim services.
The Department of Justice and Equality funds 58 services for victims of crime. Among the services provided are information, emotional support, referral to other services, counselling, accompaniment to courts, Garda stations and sexual assault treatment units.
Tusla also provides funding to a wide range of domestic violence services, domestic violence refuges and sexual violence services. Domestic violence victims can be referred on to housing authorities in appropriate circumstances. Services are provided to victims of general crime, families of homicide victims, tourist victims, child victims, victims of domestic and sexual violence, adult victims of childhood sexual abuse and victims of abuse in medical settings. Services are provided by phone and text, face to face, one to one and in groups. It is also to be anticipated in the future that some services using online methods will be developed.
I am of the view that there is a real risk, in specifying a few particular services from among the wide range of victim supports available, that we are creating a hierarchy of services which may impact the services which are prioritised for inclusion in information material and advice and, indeed, in funding.
The EU directive requires member states to facilitate the referral of victims to victim support services. This is implemented in the current legislation in section 6(1)(a), by requiring An Garda Síochána or the Garda Ombudsman Commission, on first contact with a victim, to offer every victim information on services providing support for victims of crime.
The purpose of section 6(8) is to enable a victim, with their consent, to be referred to a victim support service. This will happen regularly and at all times of the day or night, for example where a victim who has been recently raped is in contact with police. In that case, the police will usually bring the victim to a sexual assault treatment unit. In that unit, medical staff will care medically for the victim and may take forensic evidence, which will be given to the Garda. The Garda will offer to phone a rape crisis centre on behalf of the victim, with the victim's consent, and to have a volunteer meet the victim at the medical unit to provide emotional and practical support.
Amendments Nos. 29 and 30 require referrals to appropriate or specialist services. As I have already outlined, in circumstances where a victim is directly referred to a support service, that referral is to the specific specialist service, such as the sexual assault treatment unit or rape crisis services the victim requires.
I disagree with the Minister's analysis of the amendment. He is suggesting that by specifying medical support, appropriate specialist services, including psychological support services and alternative accommodation, we could be leaving out other services. However, that is not the intention and nor would it be the outcome of the amendment. It refers to "services providing for victims, including where relevant" so it does not exclude any other service. It states that we need to include, where relevant, the medical support and appropriate specialist services, including psychological support. The wording in Article 4.1(a) of the directive is, "where relevant, basic information about access to medical support, any specialist support, including psychological support and alternative accommodation". The wording of the amendment comes from the wording of the directive itself. The amendment does not exclude any other supports that could be available to the victim.
I agree with that. This amendment is necessary precisely because those at the coalface are not referring people to, or making them aware of, some of the services that exist. If we are serious about consultation we have to deal with the viewpoints of people who deal with victims on a daily basis, particularly the most vulnerable victims of sexual violence. Their experience suggests that this amendment should be included. Our amendment to change "may" to "shall" has been ruled out of order. Only the Minister can do that but the directive is very clear on the matter. It states that member states shall ensure that victims, in accordance with their needs, have access to these types of support services. The word "shall" has to be there, even if we cannot put it in. The fact that we mention some supports does not mean others are excluded and appropriate specialist services are incredibly important, because this puts the onus back on gardaí. It would be inappropriate to refer a victim of domestic violence to a psychotherapist or to refuse to refer somebody but the Act, as currently constructed, could allow for both of these. It leaves a gap and we should close that gap. We should take the advice of those who work with the most vulnerable victims in this area
Article 8.3 of the directive also refers to this, establishing the right to specialist support services, "in addition to, or as an integrated part of, general victim support services... shall have access to such services... in accordance with their specific needs and the degree of harm suffered as a result of the criminal offence". I agree with Deputy Daly that by including the reference to appropriate specialist services, we are actually following the letter of the directive. I do not think it is a huge request to include that provision as we are not excluding any services that may be provided. We are recognising that, in certain cases, specialist services may be needed.
Both previous speakers made fair and reasonable points. The classic problem for people in these vulnerable scenarios is that they do not get the level of services across the multifaceted arrangement that exists. Typically, the problem is that they have no legislative framework to support their needs. An argument can always be made that prescribing certain services excludes the others but we could amend it to include "other services as appropriate". If we exclude what I believe is a reasoned amendment it will not give full effect to what we are trying to do.
The Minister should accept the amendment and look at it further on Report Stage. It would be better than having a vote.
I have listened carefully to what colleagues have said. There is an error in Deputy O'Brien's amendment. It reads "services providing for victims" rather than "services providing support for victims". It does not make any sense.
Deputy Daly's amendment might have a better wording.
I would be happy to withdraw the amendment if the Minister supports the amendment of Deputy Daly.
Deputy Daly's amendment asks gardaí to include "where relevant, medical support, appropriate specialist services". This would put into law a requirement for gardaí to identify appropriate specialist services for a victim.
It asks the gardaí to identify a specialist medical service. The gardaí are not, in the main, qualified to identify a specialist medical service. I would imagine a victim would go to a GP who would make the decision. I cannot accept asking a garda of any rank, who does not have medical qualifications, to identify a specialist to whom the victim of an offence should go. Gardaí are not qualified to do that but they can refer a victim to a GP, who would be qualified to decide. The interpretation of something in legislation is very important and I am concerned about asking a garda to identify a medical specialist, that is, a consultant in a particular field.
It states "shall offer". It does not talk about identifying or triaging a person or anything like that. It requires the garda to offer the services "where relevant".
How is a garda going to know what to offer from among the myriad specialist services which are available?
We could qualify it with "in consultation with the appropriate medical professionals".
We are talking about first contact.
This means that it is broad enough to offer support to victims and, if somebody is injured in some way, the information on first contact is important. It is often provided in booklet form. It would be very difficult to provide all of the detailed information encompassed by the amendment in booklet form. Where a victim has first contact with the Garda or the Ombudsman Commission, he or she should offered information relating services providing support for victims, the procedure of making a complaint, circumstances where any inquiries by a victim relating to a complaint which he or she has made may be addressed and so on. The phrase "services providing support for victims" is broad enough to cover one's GP, one's hospital or whatever else is required. However, if specialist services are mentioned, a different level of information would be required. I urge caution on that point.
The Minister of State is mistaking appropriate specialist services as being appropriate specialist medical services. The amendment does not say that. It includes, for example, services providing alternative accommodation. Article 8(2) of the victims directive says that we shall facilitate the referral of victims to victim support services. The implication of the word "shall" in that section of the directive has not yet been discussed here. Leaving that aside, an example of first contact with an appropriate specialist service could be a women's refuge in a case of domestic violence. Psychological support could include having contact details for local counsellors who deal with trauma, rape, sexual violence, assault and so on. That is a specialist service and it would not be needed by every victim. It is not just about medical specialist services, it is about appropriate specialist services. Article 8(1) of the directive states that member states shall ensure victims, in accordance with their needs and the level of harm, have access to confidential victim support services. The wording of the directive is tailored to take account of degrees of need and suggests the types involved. This is required in order to provide guidance to the Garda because, sadly, people who go to it now do not always feel that they receive enough support in those areas. The amendment aims to clear that up. The Minister of State is over-complicating the matter. This amendment can reasonably be accommodated . It is appropriate that, in light of their experience currently, victims would be facilitated in getting that support on first contact.
We should consider exactly what we are trying to do here: we are trying to transpose the directive into law in this State. We cannot do that sufficiently unless we take our lead from the directive. Section 4(1)(a) of the directive details the type of support victims should be informed of on first contact and mentions "where relevant, basic information about access to medical support, any specialist support, including psychological support, and alternative accommodation". If we are serious about transposing the directive into law then we need to look to the wording of the directive.
The Minister of State is concerned that some members of the Garda may not be sufficiently qualified to triage people as to whether they require specialist services, which could create a problem. However, the amendment could be kept as it stands if the words "in consultation with" were added and if it read:
... shall offer the victim information relating to the following:
(a) services providing supports for victims, including, where relevant ...
A GP could be consulted by the Garda in that regard. Failure to accept the amendment would undermine potential services. It is important that we provide it in a legislative form because "services providing support for victims" is too general a phrase. People in the scenario under discussion often fall victim to very general items of legislation which prevent them from taking action. If the Minister of State's concern is that some gardaí are not qualified to make assessments of need, the amendment could be changed further to provide for a qualified person to triage the victim and assess what relevant services are needed. However, the Minister of State's concern is not an argument for undermining the amendment that has been put forward.
This is first contact information that is given to people. Section 6(8) provides that a member of the Garda Síochána or an officer of the Ombudsman Commission, as the case may be, shall, where the victim consents, arrange for the victim to be referred to a service which provides support for victims. That is a different provision. This discussion concerns giving information. I do not want to divide the committee on this issue if it can be avoided so I am prepared to re-examine the matter and also to take on board what Deputy Jack Chambers said. I do not want to put an unworkable provision in place but I appreciate what Deputies have said. We can re-examine it on Report Stage, if that will satisfy Deputies, at which point we can attempt to phrase it in such a way that it will not be impossible to operate. I am willing to discuss the matter and, if possible, bring forward a solution on Report Stage.
From my knowledge of cases, I am aware that there is an inordinate delay in a joined-up response to the needs of victims. That is compounding a pain and hurt that is already inflicted. The earliest possible first responders here, that is, gardaí, are in a position to set in train the particular supports necessary and to which others would respond. The earliest possible response is the preferred one by far. Relevant cases came to mind while I listened to Deputies articulate their positions, with which I can easily empathise. Do Deputies Clare Daly or Jonathan O'Brien wish to respond to the Minister of State?
As I have left out the word "support", I am willing to withdraw my amendment. However, in the spirit of new politics, the Minister of State should take on board Deputy Clare Daly's amendment as it is worded and then if he wishes to change it on Report Stage and consider it further, he can do so. All members would be open to further amendments. It is important to do that. It would send a message that we recognise that, on first contact, victims may , as a result of the crime committed against them, be affected in ways for which they need services that would not be sufficiently covered by the phrase "services providing support for victims". It does not tally with what the directive is trying to achieve. I ask the Minister of State to take on board Deputy Clare Daly's amendment and if he then wishes to consider the matter further before Report Stage, we will all be willing to do that. The Bill must also go to the Seanad.
That is very helpful and would be a good way of proceeding. It is not my amendment, it was suggested by Rape Crisis Network Ireland. It aims to cater for particularly traumatised victims who are probably the first people that will hopefully benefit from this legislation if we get it right. I accept that the Minister of State will consider the matter before Report Stage. If, however, we were to pass the amendment now, the onus would really be on him to change it on Report Stage if he so wished. The amendment is better in its current format. Can we not just keep it? The level of engagement by NGOs and so on in respect of this Bill has been immense. Although, in the context of new politics, agreeing to nothing is not good either. We could agree it now and then if the Minister of State or his officials need to change it on Report Stage, we will not stand in the way of it by demanding that that wording be retained. I will press the amendment on that basis.
The approach of the Minister of State is reasonable. Rather than divide the committee on the issue at this point, he is attempting keep us working together on as inclusive a basis as possible. I support his proposals.
I have concerns about the amendment.
Very often, we are providing information in booklet format. If it was made so specific, I am not sure all the information could be provided in writing. Deputy Jack Chambers has pointed out the problem of triaging for appropriate specialist services. It is a bit tricky and we may need to amend it. However, Deputy Daly is quite persuasive. We will accept the provision as it is and may come back and amend it on Report Stage if we need to.
We will be open to that.
It is a bit of a balance here. I think we can live with it.
I thank the Minister of State.
That is very good. Deputy O'Brien is willing to withdraw amendment No. 14 in favour of amendment No. 15.
I move amendment No. 15:
In page 9, line 27, after “victims” to insert the following:
“including, where relevant, medical support, appropriate specialist services including psychological support services, and services providing alternative accommodation”.
I move amendment No. 16:
In page 10, between lines 3 and 4, to insert the following:
“(g) any particular measures, procedures or arrangements which are available to a victim who is a child;”.
Amendment No. 16 inserts a new subsection into section 6(1) to provide that a victim who is a child must be offered information at first contact on any particular measures, procedures or arrangements which are available for a child victim. The purpose of the amendment is to ensure that child victims and their parents are aware of the special measures and additional protection which apply to children from their earliest interaction with the criminal justice agencies.
The amendment strengthens our own position on the previous one. The Minister of State is stating it is necessary to offer information on particular measures, procedures or arrangements which are available to a victim who is a child. I do not have an issue with that. I think it is an appropriate amendment.
Amendment No. 17 has been ruled out of order as it represents a potential charge on the Exchequer.
We move to amendment No. 18, which has already been discussed with amendment No. 6.
Has the amendment not been withdrawn?
Amendment No. 6 was withdrawn. Amendment No. 18 is part of the same grouping of amendments, that is, amendments Nos. 6, 18, 148, 152 and 153.
That was the restorative justice group of amendments.
I am advised that because the first amendment in the grouping, amendment No. 6, was withdrawn, the subsequent amendments in the grouping are not moved.
I think that is correct. The Minister of State indicated that the restorative justice element will be looked at later on.
I will note that amendment No. 18 is not moved. Is that in order?
Amendment No. 19 has been ruled out of order as it represents a potential charge on the Revenue.
Amendments Nos. 20 to 22, inclusive, are related and may be discussed together. I call on Deputies Jonathan O'Brien and Clare Daly, in that order, to speak on the grouping.
I move amendment No. 20:
In page 10, line 26, to delete “as soon as practicable” and substitute “without unnecessary delay”.
The amendment is intended to reflect the wording in the directive, which is "without unnecessary delay". I think it is important to use the wording of the directive if we seek to transpose it into Irish law.
I think "as soon as practicable" is a moveable feast while "without unnecessary delay" is clearer and more actionable in cases of unreasonable delay. Unnecessary delay can have the effect of re-victimising a victim. The amendment provides greater clarity.
Amendments Nos. 21 and 22, from myself and Deputy O'Callaghan, respectively, differ slightly from each other. They deal with the need for victims to receive information which they can understand. Article 3(2) of the directive states "Member States shall ensure that communications with victims are given in simple and accessible language, orally or in writing." We have to take people's individual circumstances into account. In the case of somebody with limited reading ability, for example, written documentation will not be of any use. Conversely, a deaf person may like to receive information in writing rather than receiving it orally. My amendment provides for choice being given to the victim as to the format in which he or she receives information.
Deputy O'Callaghan's amendment No. 22 provides that the investigating authority should have regard to the level of understanding of the victim, but the decision is the authority's. I have put it the other way around. I am not sure the Garda should be the deciding party as it might not be able to adequately assess the comprehension of the victim. As a garda might simply think the victim probably is able to read it or whatever, the choice should be given to the victim.
Deputy O'Callaghan has asked me to speak on his amendment. As the other speakers have said, the intention is to tailor the information towards what the victim can understand and how he or she can properly access it. Deputy Daly's point is well made. At the very least, there needs to be mutual agreement as to the format of the communication rather than an assumption that could undermine the victim's ability to receive information. I am interested to hear the Minister of State's response.
In my many years in this House, I have heard the question of these two phrases come up again and again. I am of the view that the phrase "as soon as practicable" imposes exactly the same obligations on the authorities as the phrase "without unnecessary delay". The phrase "as soon as practicable" is preferred in the Bill as it frequently occurs in the Statute Book anyway in similar contexts, whereas "without unnecessary delay" is not to my knowledge used in the Statute Book in comparable circumstances at all. We should stick to what has been tried and tested over the decades.
I understand the rationale behind amendment No. 21 and agree in principle that the means of providing the information should be chosen by the victim. However, there may be practical obstacles to its implementation. At first contact, information is most likely to be provided through a specially designed victims information booklet and it may not be feasible for all of the detailed information contained in that booklet to be given orally. Another example would be if the booklet was not available in the desired language at the time and place of first contact, in which case providing an electronic copy might be the only option.
I am happy to consider the matter and to consult with the relevant agencies to see if a suitable amendment can be included to ensure the victim's preference is followed unless it is not possible to do so. There is something in it, so let us have a look at that one again and see where we are with it.
On amendment No. 22, that issue is already provided for in section 21 of the Bill. Section 21 explicitly requires all bodies with obligations under this Bill to ensure that all communications with victims are in simple and accessible language and take into account the personal characteristics of the victim, including any disability which may affect his or her ability to understand or be understood. That is already covered in section 21 of the Bill.
The wording which we were using is the wording within the directive, but I am quite happy to withdraw the amendment given that the Minister of State has taken on the previous amendment from Deputy Daly as a gesture of goodwill. I also have further amendments down the line.
I was doing some mental gymnastics trying to figure out the connection between them.
There is a connection. If we are saying that we are working to try to give the victim the choice, then we need to do that work. I am slightly concerned that the Minister of State said the information would be given if possible. There should not be a situation where the information is not available in an accessible format. I am trying to envisage a scenario whereby that information would not be available. It would be pretty serious if we could not give a choice of the type of information, for example, a choice between information being given orally or in writing. I do not have a particular problem with providing information by electronic means if the person has a computer. If the Minister of State will look at it again to try to reinforce the choice element we will withdraw the amendment in today's spirit of goodwill, but it is a key point so I am little bit worried about why the information would not be there.
I think the Minister of State made a fair point about section 21 incorporating the purpose of the amendment so I am happy to withdraw it.
We will now move on to amendment No. 23. Amendments Nos. 23 to 25, inclusive, 64 to 66, inclusive, and 75 to 77, inclusive, are related and may be discussed together.
I move amendment No. 23:
In page 10, after line 40, to insert the following:
“(6) Where a member of the Garda Síochána or the Ombudsman Commission makes a request referred to in subsection (5) a victim shall be given reasonable opportunity to make alternative arrangements for accompaniment, where the substitution of an individual by another suitable person would answer the concerns of the member of the Garda Síochána or the Ombudsman Commission.”.
There is a reason I withdrew the last amendment. It was in the hope that the Minister of State would look at this amendment. It is important that if one looks at section 6(4) which states: "a victim may be accompanied by a person or persons of his or her choice, including his or her legal representative, when contacting the Garda Síochána or the Ombudsman Commission for the first time in respect of an alleged offence" one then goes forward to section 6(5) which states: "Where a member of the Garda Síochána or an officer of the Ombudsman Commission, as the case may be, reasonably believes that the presence of a person referred to in subsection (4), including a legal representative, would be contrary to the best interests of the victim or would prejudice any investigation or criminal proceedings regarding the alleged offence, the member of the Garda Síochána or officer of the Ombudsman Commission, as the case may be, may require that the person absent himself or herself prior to the member or officer concerned engaging further with the victim."
We ask the Minister of State to include the additional section proposed by our amendment which states that where that does happen, and where a member of An Garda Síochána or the Ombudsman Commission makes a request as referred to in section 6(5), that a victim would be given reasonable opportunity to make alternative arrangements for somebody to accompany him or her, where the substitution of the individual by another suitable person would answer the concerns of the member of the Garda Síochána or the commission. That is important because if somebody goes to make a complaint and, for whatever reason, the garda or the officer of the commission decides that an accompanying person should absent himself or herself in the best interests of the victim, the victim should be given an opportunity to seek somebody else to accompany him or her in making that complaint.
We wish to include this section to make it very clear that if that does happen the victim would be given reasonable opportunity to make such an alternative arrangement. That follows through to amendments Nos. 64 and 75. It follows through the sections of the Bill.
We are all trying to achieve the same thing in the three different groups of amendments. Perhaps we are doing so in slightly different ways and we may have to throw everything into the pot to come up with a compromise by Report Stage. I am not sure. In terms of amendment No. 24 and the alternative support person, Articles 3(3) and 20(c) of the directive provide that the victim may be accompanied by a person of their choice on first contact, including legal representation, but that the garda or the Ombudsman Commission can object if they believe it is not in the victim's best interest or if it would prejudice an investigation. If we are talking about circumstances where a victim's support person can be asked to leave, that could potentially leave the victim in a very vulnerable situation. I am trying to give the victim the opportunity to choose the alternative in those circumstances. The guidelines produced by the Directorate-Generale Justice on this directive state on page 42:
Only in exceptional circumstances should the possibility to be accompanied by a person of the victim’s choice be limited, and then only in relation to a specific person. If this happens, the victim should be able to choose another person.
It would be really bizarre for us to make legislative provisions for a support person or a solicitor on point of first contact, but then to leave a hole for that right to be taken away without an appeal. I know Deputies O'Brien and O'Callaghan are trying to do the same thing. With regard to Deputy O'Brien's amendment I am a little bit concerned that, based on the wording, it might be left open to the gardaí to refuse the second person. Perhaps it is not. If we are talking about the gardaí substituting a second person that could then be refused, the gardaí might then continue like that so that the victim never gets an appropriate alternative person. I wonder about that.
Deputy O'Callaghan's amendment explicitly states that the victim shall be given "reasonable opportunity" to choose someone else if an investigator deems their first choice unsuitable. Again, I am not sure. I think our amendment is probably better on this issue. We are all obviously trying to do the same thing.
Amendment No. 65 leaves no latitude in the legislation to allow the gardaí to get someone to leave a room, or to leave a victim alone at any time, without the option of a replacement or an appeal. That would be completely inappropriate as far as I am concerned. Amendment No. 76 gives the victim the choice of an alternative person at the stage of interview and medical examination if the gardaí rejected their first choice, which is not specified by the other amendments. The rationale for that is really the same as that for the other two amendments.
The point is well made by Deputies Daly and O'Brien. We are all trying to achieve the same thing. It will be interesting to see what the Minister of State has to say and to see how all three amendments can, perhaps, be put together to achieve the best outcome. These amendments are proposed to give people that full support and a right to accompaniment at that acute stage. It is for us all to come together on how to best legislate for it.
Again, I thank the Deputies for the amendments and the work and thought they have put into them. These amendments aim to ensure that where a victim is accompanied either at first contact, when making a complaint or during an interview, and the Garda or officer of Ombudsman Commission excludes an accompanying person, that the victim is given the opportunity to arrange for an alternative person to accompany him or her.
I appreciate what the Deputies are aiming to achieve, but I do not see how these changes are necessary. The amendments do not appear to appreciate that, in each instance, the victim is present of his or her own volition and the Garda or officer has no power to compel the victim to stay or continue with the contact, complaint or interview. The victim is present in a voluntary capacity to get help and is not being charged with anything. The victim is at all times free to come or go and make such arrangements as he or she wishes in respect of an alternative accompanying person. If a victim wants someone else to come in, there is no difficulty with that.
The effect of the provisions allowing a victim to be accompanied is that they prevent the Garda from excluding an accompanying person without reasonable grounds. The victim has, and continues to have, at all times a right to be accompanied at first contact when making a complaint or at interview. These amendments have no actual effect other than by implication to suggest that the victim would somehow otherwise not be free to come or go or make such arrangements as he or she wished.
There is no difficulty whatsoever in a victim bringing in someone else to replace the person who has been excluded. Obviously, gardaí would have good reasons for excluding a person. We can appreciate what those might be and they are for the good of the victim at all times. The victim is free to come and go, is not under any charge or the like, can take a break at any time, etc. There is no need for these amendments in that regard. The Deputies might keep in mind that the victim is not under arrest or compelled to stay and can leave at any time that he or she wishes. Victims can make any phone calls or bring in anyone else whom they want. There is no difficulty in that regard.
That may be the case when a victim decides to make first contact and make a complaint, but this follows through in the rest of the legislation, for example, the interview stages in sections 11 and 13. Is the Minister of State saying that, when a victim makes a complaint, gives a statement and is interviewed by a garda, it is open to him or her to leave and find an alternative if the person who is with him or her is asked to leave during the interview stage?
It is a good point that the person is there of his or her own volition, but he or she is there to access support services. We are making provision for the fact that victims are being provided with the legal right to have a person or solicitor present while accessing support. When removing that right, there should be a fallback. This is about choice for the victim. I understand what the Minister of State is saying, but this is meant to ensure the spirit of the directive and that the victim's choice should only be removed in very limited and specific circumstances. In a domestic violence situation, for example, we would understand gardaí suspecting that a family member might be present in a coercive rather than supportive way, but there needs to be some protection if the victim has a solicitor whom the gardaí do not like because he or she is perceived as being of a certain type or whatever. While it is true that the victim can walk out and does not have to stay, we are designing this Bill in order that people can get support. We want them to get that support. We do not want them to walk out and leave. This provision should be considered in some form. I am not saying which of the three attempts achieves it, but we must do something that is different.
Deputy Daly summed up the matter well. The victim has a right to leave in that scenario, but we must ensure he or she knows of the right to have someone present. That should be incorporated in the text of the Bill. As Deputy O'Brien mentioned, it is a multistage process, so it is important that victims get the chance throughout. The initial stages might be fine, but a victim might need support at a later point in the interview or investigation. Not to have that provision in the text on the basis that a victim can walk out does not give full support to the victim. Whatever amendment is made, we need to provide that right for the victim.
I will call Deputy O'Brien again before inviting the Minister of State to respond, just in case there is something further salient to this.
I understand where the Minister of State is coming from. Where certain crimes are involved, for example, domestic violence, gardaí might be concerned that a family member who is accompanying the victim is coercing him or her in the complaint or during the interview stages, so I understand why gardaí might ask that individual to leave. However, if the person is a support worker from the Rape Crisis Centre or the person's legal representative, I do not understand why the gardaí would ask that person to be removed. Perhaps the Minister of State will outline under what circumstances a legal representative who is accompanying a victim to make a complaint or during the interview stages could be asked to leave. That would be helpful.
Even if there is good reason for that individual to be asked to leave, nowhere in the legislation is the victim required to be given the reason or rationale for that. Will the Minister of State examine this matter for Report Stage? It would probably be rare for a legal representative to absent himself or herself, but the victim should have the right to know why that individual was being asked to leave. Given we are transposing a directive that is concerned with putting the victim at the centre of everything, it is only appropriate that if a victim makes a complaint and is accompanied by a support worker or legal representative who is then asked to leave, the victim has every right to know why, but nothing in the legislation entitles him or her to that information. The Minister of State might comment on scenarios in which this might happen.
We are discussing a number of issues, the first of which is making something legal that is already legal. The victim will have the right to have someone accompany him or her. That is fine. The Deputies should note as well that, in all circumstances in which someone is excluded, a "record shall be kept by the Garda Síochána and the Ombudsman Commission of any decision to exclude a person ... and such record shall include the reasons for that decision".
Is that available to the victim?
That provision is in the Bill. Obviously, it would depend on the nature of the offence and the criminal charge that might be laid later. It is a subjective judgment that gardaí must make. They are doing it in the best interests of the victim.
I am concerned about a provision in the amendment, that being, "a victim shall be given reasonable opportunity to make alternative arrangements". This implies that the victim is under a direction of the Garda or the ombudsman, but that is not the case. Victims can take all the time they like to replace the persons accompanying them. They can do it straight away. It is up to them. They are completely free to make any arrangement that they wish.
Let us say a victim makes a complaint and is accompanied by a legal representative. For whatever reason, the Garda or GSOC, the Garda Síochána Ombudsman Commission, asks that legal representative to absent themselves. The victim can then leave and get an alternative to accompany them. However, what if the victim does not know the reasons the legal representative was asked to leave?
I can understand where a family member could be asked to leave in, say, a case of domestic violence. However, I do not understand why a legal representative would be asked to leave and for what reason.
It would be very rare. What would happen if the legal representative was a family member, for instance? Provision has to be made for that. A legal representative would be asked to leave if he or she was in some way involved in the offence or was putting some pressure on the individual, if the Garda felt it would be in the best interests of the victim that this particular person should not be in the interview and that it might be better if there was another person accompanying the victim.
It could be quite possible that the legal representative could be a family member. The gardaí involved might have some suspicion that the legal representative might be putting undue pressure on the victim by having a relationship of some sort. We have to include the provision but it would be rare. We have to include a legal representative in cases where he or she might be doing something that would not be in the best interests of the victim.
We are prepared to look at it again in respect of the replacement of the person who accompanies the victim.
In particular crimes, it takes a lot of courage for a victim to take that initial step to make a complaint. In a scenario where the person who is accompanied is asked to leave - I accept it could be in rare cases - it might make the difference where the victim does not go back a second time.
Before the Minister of State responds, I welcome the Tánaiste and Minister for Justice and Equality to the meeting. I hope the Minister of State, Deputy Stanton, will hold on until we complete these amendments.
Members are aware of a recent tragedy which unfolded outside the jurisdiction in County Fermanagh. I am minded of somebody who has a responsibility for a person with intellectual disability. What if the victim is not somebody who has the full capacity or competency to represent their specific case? Is the accompanying need not even more critically necessary in terms of provision? Is that something that is allied to the points Deputies Jonathan O'Brien, Clare Daly and Jack Chambers have been highlighting?
The issue only occurs if the Garda or the ombudsman takes the view that it is not in the best interest of the victim for that particular person to be the accompanying person. In the majority of circumstances, that will not occur. There could be the odd instance, however, where the accompanying person would have ulterior motives and putting undue pressure on the victim. In that case, if the gardaí see that occurring, they can ask the person to leave. Arrangements can be made by the victim to have somebody else instead.
While it would be rare, it is all about safeguarding the victim. It would be bizarre if there was a situation where a victim was making a complaint or giving information and the person sitting alongside them is in some way involved in, say, an alleged assault or offence. It involves cases where the victim cannot engage properly with the gardaí by virtue of the accompanying person’s very presence. If the gardaí involved see this, they can ask the person to stand aside and somebody else can be brought in. There is no time limit. The victim is completely free to make a phone call to get someone straight away or wait an hour, a day or a week. It is only in cases where the gardaí feel it is not in the best interests of the victim for the accompanying person to be there. In rare cases it could be a legal representative. We have to protect the victim in all instances and this is what this is about.
We will have to pull this together. The Minister of State did not respond to the specific additional inquiry I made but maybe he will. We will go back to members.
I know it is open to the victim to leave or make a phone call or come back in an hour or a week. Where the accompanying person is asked to leave for good reason, we need to be mindful that in some cases it can take a lot of courage for the victim to take the initial step to make a complaint. They may be slow to take the step again if they do leave. There should be some sort of follow-up procedure with a victim who decides to leave because the accompanying person has been asked to absent him or herself. If the victim then decides not to go any further, it is critical there should be some follow-up to give them every opportunity to make a complaint at a later date. The onus should not be put back on the victim. The victim may not have somebody else whom they trust or can turn to accompany them. Will the Minister of State examine this follow-up provision?
We will certainly look at that. It raises other issues, however, with respect to freedom of the victim to come and go and so forth. On first contact, the victim gets all the information available with respect to support services, agencies and so on. There are plenty of talented and experienced people available to assist a victim.
We have to work on the best interests of the victim. If the accompanying person is not working in the best interests of the victim and the gardaí see that, they have to be free to ask the person in question to leave. It is then up to the victim to decide whether he or she wants to carry on or get somebody else to accompany them. They are free to do that and the Garda will give all the help and assistance required.
I am certain the Garda would follow up to assist and support a victim if the victim wants it. One cannot coerce a person to do something they do not want to do, however. There is a balance involved. A victim who comes forward is completely free to make his or her own arrangements. It is only when the view is taken that the accompanying person is not acting in the best interests of the victim, that he or she would be asked to leave. In rare instances, that could be a legal representative. Accordingly, we have to make provision for that.
Seeing where the Minister is coming from, I am willing to withdraw my amendment. However, we need to be careful about this.
As per the directive, we are defining the right of somebody to have a support person with them if they choose. It may or may not be a legal person. That is a good development. I also agree there can be limited circumstances where a garda sees something is not right and the accompanying person is actually not supporting the victim and needs to intervene. I have no problem with these parts of the provision.
My concern is in cases where a garda might have had some indirect involvement or knew some of the people involved and could block an alternative, putting the victim off from seeking support. It is unlikely but the person should have the right to choose a replacement.
The victim does have the right.
The choice should be with the victim, whether they have somebody or who the person might be. Again, asking a support person to leave should be in exceptional circumstances.
We must word some type of procedural amendment so that in this process, the victim knows they can have a right to a replacement when that occurs. Whatever way that is worded in an amendment for Report Stage, it should happen because we will be leaving a procedural vacuum. Of course, the Garda probably would, might and should to do this but if it is not in the law, the force does not have an obligation to do so. Is the Minister of State aware of other legislation whereby there is a legal imposition on the Garda to offer a replacement or to give the victim a choice in that procedural context. In respect of codifying the section, as has been agreed, if the Garda believes that a person should not have that legal representative with him or her, not imposing an obligation on the Garda to say that the victim can have that replacement could have unintended consequences for the victim if he or she was not aware of the legal position. Regardless of how it is done, creating that procedural choice by means of incorporating the existing legislative mechanisms would be a welcome development.
In his concluding remarks, could the Minister of State reference capacity in terms of the victim's place?
A number of issues arise. First, we will look at making it compulsory for gardaí to inform the victim of the right to have an alternative if somebody is excluded. I think that is the genesis of what I am picking up here so we will look at that and come back on Report Stage. Deputy Clare Daly made a point about the alternative. There is a very slight risk that the alternative might also be a problem, for example, if it involved a family member and another family member was put in instead, so we must keep it open.
The legal capacity legislation has been passed. It provides all kinds of supports for people with intellectual capacity difficulties. That will kick in for those kind of supports, as the Chairman is aware because I am sure he dealt with that legislation in the past. I think we are all on the same page here and the points made by members are well taken. It comes down to informing the victim that he or she has a right to have an alternative person accompany them if the first person is excluded. We all agree why a person might be excluded by the Garda if he or she is not acting in the best interests of the victim, so we are all on the same page. We will look at that suggestion, as Deputies Clare Daly, Jack Chambers and O'Brien have requested.
Is Deputy O'Brien withdrawing this series of amendments? Has the Minister of State undertaken to look at this in advance of Report Stage?
I will withdraw amendments Nos. 23, 64 and 75.
It also involves amendments Nos. 76, 65 and 24.
It also involves amendments Nos. 25, 66 and 77.
That is all nine in this particular grouping. Does the Minister of State wish to come back in?
I must be excused. I will leave it in the good and capable hands of the Tánaiste and Minister for Justice and Equality for the rest of the meeting. The committee has worn me out and I must have a lie down.
We thank the Minister of State. I do not doubt that we will continue to make progress. The Tánaiste and Minister for Justice and Equality is very welcome. We understand she had a speaking engagement earlier this morning and we advised the members that she would join us.
Members will be interested to learn that this speaking engagement was the international conference for victims run by the victim support organisations across Europe. They wanted me to convey their thanks for the work the committee is doing on this legislation. It is great to see people from all over Europe here discussing the rights of victims, including the victims of crime and terrorism.
I thank the Minister for those words with which I concur. Members have clearly listened very carefully to the various voices that have presented and those who have lobbied in recent times.
Amendment No. 26 is in the name of Deputy Clare Daly. Regrettably, it has been ruled out of order as it represents a potential charge on the Exchequer, as do amendments Nos. 27 and 28.
I have the letter stating that amendment No. 27 has been ruled out of order.
I will allow the Deputy to come back in when I put the question on section 6. I have already created a precedent this morning.
If amendment No. 29 is agreed to, amendment No. 30 cannot be moved.
I move amendment No. 29:
In page 11, line 10, to delete "referred to a" and substitute "referred to an appropriate and/or specialist".
Did we not agree amendment No. 14? Amendment No. 14 was the one the Minister of State agreed to. I am looking at what the knock-on effect of that is.
Amendment No. 14 was withdrawn. Amendment No. 15, which is part of the same grouping, was agreed. We have moved on to amendment No. 29.
I am trying to identify the difference between the two amendments. I am reading them again and the words seem the same.
I must tell the Deputy that the net effect is that if members agree amendment No. 29, amendment No. 30 in her name cannot be moved.
I will stick with my own amendment. I cannot see the difference between the two of them.
Possession is not the most important thing; it is the net effect.
They are probably the same. Go with it. We can change it again. I think they are exactly the same.
Deputy Clare Daly is being most magnanimous. I am sure Deputy Jack Chambers will report to Deputy O'Callaghan.
I will bow to his superior legal drafting skills. I think they are the same.
Deputy Clare Daly is building up brownie points here at an inordinate rate.
I think they are the same. It is just that Deputy O'Callaghan has a better grasp of the legal aspects.
Amendment No. 30 cannot now be moved, as I have already advised.
I wish to comment on amendment No. 27, which was ruled out of order. The Minister may not be aware that an amendment to section 6(1)(a) has been agreed by the Minister of State. This has knock-on effects throughout the legislation. One of those effects relates to amendment No. 27 because the wording of this amendment is exactly the same as the amendment we have just agreed. The Minister should be aware that the Minister of State has said that he is going to look at amending the amendment we just passed. If that happens, there will be a knock-on effect but I am sure the Minister's officials will brief her on the importance of the amendment we passed earlier.
Is that all the Deputy wishes to say?
I do not understand why it can be ruled out of order as involving a potential charge on the Exchequer when an identical amendment has been agreed previously.
It cannot be argued that this will give rise to a charge on the Exchequer in section 6 but not in section 6(1)(a). That does not make sense.
I am cognisant of the questionable nature of some of the decisions on what is allowable, having had a similar experience in previous committee roles. The Deputy could raise the matter with the Ceann Comhairle. The notification I circulated to members on their amendments was authored in the Bills Office, which takes decisions in these matters. The proper process in terms of address is through the Ceann Comhairle. Deputy Jonathan O'Brien recorded his concerns regarding amendments that were ruled out of order, as did Deputy Clare Daly regarding earlier amendments. The Deputies should follow up on the matter and seek substantive advice from the Ceann Comhairle as unfortunately this cannot be done in the committee.
I appreciate that.
As far as I can see, the difference between the two is that amendment No. 27 is a shell, which makes the process of referral mandatory given the various factors involved such as financial obligations and the number of victims who may require such a service. That is the difference between amendment No. 27 and the amendment that was accepted, which outlined the services that may came into play and about which information should be given. I expect that is the reason for the decision in respect of amendment No. 27.
The difference is probably the use of the word "shall" as opposed to "may", which takes us back to the earlier argument that this should be compulsory. The word "shall" is used in the directive, whereas the legislation uses the word "may".
I am merely pointing out that this is the reason the amendment was ruled out of order.
I appreciate that but the Minister should allow Deputy O'Brien to finish his point.
Informing victims may give rise to a cost to the Exchequer but we either inform them or we do not inform them. As an Opposition Deputy, I find it extremely frustrating that, having spent considerable time doing research and drafting amendments, they are ruled out of order because the word "shall" as opposed to "may" is used. The way we do our work in here is bonkers.
In terms of the committee's time, Deputy O'Brien was not present when, at the start of the meeting, we went through the commentary. While I appreciate his remarks, we are repeating ourselves at this stage. The Chairman made a good suggestion for addressing this matter. The Minister of State, Deputy Stanton, made a good point when he noted that amendments from the Government side had also been ruled out of order.
I thank Deputy Brophy for prompting us to move forward.
On a slightly different point, the Minister, through no fault of her own, also missed the start of the meeting. One of the main points that arises in this regard is that the directive uses the word "shall". If members are to be denied the right to table amendments that propose broadening the definition of the investigating authority, I appeal to the Government to review the matter before Report Stage.
We cannot discuss the issue further. I will allow the Minister to make a brief response.
The EU directive states that we "shall" facilitate and we are very clear that the Bill does this and is in line with the directive. I appreciate that members have discussed the matter and some broader issues arise.
It is my sense of the members' position that they are definitely of a view on what should be done in the case of a victim presenting.
A significant number of amendments have been proposed to this section. Unfortunately, amendment No. 31 in the name of Deputy Clare Daly is deemed to be out of order as it could give rise to a charge on the Revenue.
I move amendment No. 33:
In page 11, to delete lines 30 and 31 and substitute the following:
"(a) information relating to any significant developments in the investigation of the alleged offence, including—
(i) the arrest of a person,
(ii) the charging of a person,
(iii) the release on bail of a person and, where a person has entered into a recognisance admitting him or her to bail, any conditions of such recognisance which relate to the victim,
(iv) the remand in custody of a person who has been charged;".
Amendment agreed to.
Amendments Nos. 34 to 38, inclusive, are related and may be discussed together.
I move amendment No. 34:
In page 11, line 30, before "information" to insert "all relevant".
As it stands, the legislation provides that victims will be provided with information, which is a little vague. We are all trying to address this issue in slightly different ways. My amendment proposes to clarify this provision by providing that "all relevant" information be provided. This relates to information that people need if they are to request, for example, a review of a decision by the Director of Public Prosecutions not to proceed with a prosecution.
Another amendment in the group provides that "sufficient" information be provided. While the word "relevant" is slightly subjective, the word "sufficient" is even more subjective. The former would provide a strong ground on which to mount a challenge in cases where there may be a suspicion that all relevant information had not been supplied. While the intention is that all information should be given, I do not believe this would be accepted by the DPP or Garda. The inclusion of the word "relevant" improves the text. The decision should rest with the victim rather than the investigating authority. Rather than the investigating authority deciding what is relevant to a person's review, the victim should make that decision.
I am willing to withdraw amendment No. 36 and support Deputy Daly's amendment No. 34. The Deputy is correct that "relevant" is stronger than "sufficient", the word used in my amendment.
My amendment proposes that the information provided to the victim would "contain relevant information to enable a victim to decide whether to request a review of a decision". Paragraph (c), which the amendment seeks to amend, relates to an investigation, which is the Garda part of the process. The first part is an investigation by the Garda, after which one has a decision by the Director of Public Prosecutions as to whether to institute criminal proceedings. The relevant information needs to be provided to a victim to assist him or her in deciding whether he or she wants a review. I am interested in hearing what the Minister has to say.
I thank the members. The effect of amendments Nos. 34, 35 and 38 would be to require the Garda or Garda Síochána Ombudsman Commission to provide to a victim all relevant information relating to any significant development in investigation, regarding a decision to end an investigation and regarding a decision not to prosecute a person. The concern in this regard is that this requirement would encompass the entire Garda, GSOC and DPP case files. It may not be the Deputy's intention that the victim be provided with the entire case files relating to an offence, the amendments would present some difficulties.
The limitation on the provision of information in section 10 would ensure that much of the information could not be released as it would prejudice or preclude any future criminal proceedings. This is one consideration but there are also privacy and data protection considerations and considerations in respect of the rights of witnesses and the accused. The amendment could, therefore, be disproportionate to its aims if one were to end up in that scenario.
On amendment No. 36-----
Deputy O'Brien has indicated that he will not move that amendment.
Amendment No. 37 is Deputy O'Callaghan's amendment. I see what he is getting at. It is very subjective and would require the Garda, the Garda Síochána Ombudsman Commission, GSOC, or the Director of Public Prosecutions, DPP, to know what information would, in any particular case, be sufficient for that particular victim to make a decision whether to request a review of the decision not to prosecute. It is a subjective decision for them to make. As the decision not to prosecute is what may be reviewed, a summary of the reasons on which the decision not to prosecute was made is probably the appropriate information to give to a victim in the circumstances and will provide a sufficient basis in the majority of cases to decide whether to seek a review.
Referring back to amendments Nos. 34, 35 and 38, the issue is with "all relevant information". If it were "relevant information", we could come back on that. Including the word "all" assumes all those details I am suggesting and could end up being problematic because they could prejudice criminal proceedings and could breach privacy and data protection. We can come back to it on Report Stage if Deputy Daly wants to consider that.
I would be interested in Deputy O'Callaghan's views about the points I made about the subjective decision-making his amendment implies. I do not have a huge difficulty with it, but just make that point.
I would have liked to have put down "all information", but because "all information" clearly is not appropriate in certain instances, I did not propose "all information". By including "all relevant information", it presumes it is information that can lawfully be given and would not impede a prosecution or be too sensitive to be given out or whatever. The word "information" on its own is just too loose. This is about empowering the victim with as much relevant information as is possible in order for him or her to make informed decisions. All the definitions and everything we are all saying have a degree of subjectivity. I am just trying to narrow it and I am not sure I got the best bit. If the Minister is happy with "relevant", I do not see why she would not be happy with "all relevant". It is not all information. It is just all relevant information.
Is the Deputy happy for me to come back on Report Stage and address it?
Yes. Let us look at it on Report Stage. I again stress the point that if "relevant" is good, "all relevant" would sit better. I hope that someone would not lean on it later if they need to get access to some documentation to help their case. I hope we can change the culture. That would not be necessary anyway.
Is the Deputy indicating-----
I will look at it on Report Stage in the interests of the hour.
----- that she will withdraw her grouping of amendments?
I would really like it looked at on Report Stage.
What Deputy Daly wants is all relevant information on the decision not to prosecute. This has been subject to huge debate. Obviously, I agree with the principle of giving reasons and giving victims as much information as possible as to why a decision would be made not to prosecute. The concern we have and that I have been advised is at issue here relates to the particular points made. Perhaps we can address that more fully when we come back. We may be able to find a form of words that addresses the points the Deputy is making about it being relevant but which does not trespass into the territory of making other criminal proceedings difficult or does not breach data protection or privacy rights of other people. If she were willing to accept "relevant", we could probably live with that.
Deputy Daly will take that on board. She and the Tánaiste can obviously exchange their views in the interim up to Report Stage.
I will take on board what the Tánaiste has said about the amendment introducing some subjective element on the part of the Garda. It has to try to figure out what the victim requires to decide whether to review decisions. I ask the Tánaiste to consider it for Report Stage and I will not move my amendment.
I can consider it on Report Stage because while it is subjective, at the same time it is empowering for the victim, obviously, and it is the right thing to do to get the relevant information. I do not have a huge difficulty with this. We will certainly come back to it on Report Stage.
Amendments Nos. 39, 40 and 54 are related and may be discussed together.
I move amendment No. 39:
In page 11, lines 38 and 39, to delete "institute criminal proceedings in respect of the alleged offence" and substitute "prosecute a person for the alleged offence".
The aim of these three amendments is to correct and clarify the provisions relating to a victim’s right to information on, and a review of, a decision not to prosecute a person. The existing text of section 7 on the provision of information provides that a victim shall receive, on request, information on a decision not to institute criminal proceedings. There are two difficulties with this. First, the words "criminal proceedings" have a different meaning in the directive, where they apply to the investigation and the court proceedings, from that understood in this jurisdiction, which could give rise to confusion. Second, section 7 does not provide for a victim to receive information where a decision is made to prosecute but that prosecution does not proceed or is withdrawn. Section 8, rather confusingly, refers to a review of decision not to institute or proceed with criminal proceedings.
Amendment 39 replaces the term "institute criminal proceedings" with "prosecute a person", which is much clearer. Amendment 40 inserts a new paragraph into section 7(2) to ensure a victim receives information on a decision not to proceed with or to withdraw a prosecution. It is giving the information to the person in those circumstances.
Amendment 54 again replaces the term "institute criminal proceedings" with "prosecute a person". It also deletes the reference relating to a review of a decision not "to proceed" with a prosecution. This is because the decision to end a prosecution is not suitable for review, as the decision itself cannot be reversed.
I move amendment No. 40:
In page 12, between lines 2 and 3, to insert the following:
"(e) information regarding a decision to discontinue the prosecution of a person for the alleged offence and a summary of the reasons for the decision;".
I move amendment No. 41:
In page 12, to delete lines 17 to 19 and substitute the following:
"(i) information regarding a final judgment in any trial of a person in respect of the alleged offence (and, as the case may be, any further judgment on appeal), including—
(i) where such trial is not a trial by jury, a summary of the reasons given for the judgment,
(ii) where the person is convicted of the offence, the sentence imposed on the person, if any,
(iii) any orders made by the court related to, or ancillary to, the judgment;".
I move amendment No. 42:
In page 12, between lines 35 and 36, to insert the following:
"(vi) any relevant conditions under which a sentence imposed on the convicted person, is suspended or part-suspended,
(vii) any relevant post-release supervision order conditions imposed on the convicted person.".
Amendment No. 42 was discussed with amendment No. 3.
Apparently the amendment was not discussed.
It was discussed.
It was in the first grouping. We have just realised that we missed it there earlier this morning. It was the first one up in a big grouping so no one actually referred to them.
We did not discuss it.
That was our fault and not the Chair's fault.
No. It was discussed. I beg your pardon. It was discussed along with amendments Nos. 3, 7, 33-----
I know it was in the grouping, but it was not actually discussed. It is too late for that now. I know it was in the category that was discussed so we are just at voting stage now.
We have reached decision-making time.
I am happy to-----
I am trying to get an indication as to where things are. I am hearing "agreed".
We are agreed.
I am going to call it for the last time. Is that agreed?
No. We are not agreeing. It is already provided for in an earlier amendment, No. 33. Is that right?
We will not be reopening the discussion on it.
No. I am just making a point.
We shall not be reopening the discussion on this. Is Deputy Daly pressing amendment No. 42?
If the amendment is lost will I be able to put it in at a later stage?
Yes, to the best of my knowledge, on Report Stage.
In deference to the confusion, I will withdraw it for now but I reserve the right to re-enter it on Report Stage.
I hear what Deputy Daly is saying.
I am trying to be helpful.
With respect to the Tánaiste, she cannot be following what members are saying because her conversation is very loud and is coming across the members who are communicating with the Chairman. Deputy Daly has indicated that she is willing to withdraw the amendment rather than force a division. We have not had a division yet on the Criminal Justice (Victims of Crime) Bill 2016. Amendment No. 42 has been withdrawn. Amendment No. 43 was discussed with amendment No. 5.
I move amendment No. 43:
In page 13, to delete lines 16 to 21.
I move amendment No. 54:
In page 15, lines 2 to 4, to delete all words from and including “Where,” in line 2 down to and including “offence” in line 4 and substitute the following:
“Where, pursuant to section 7(2)(d), a victim of an alleged offence receives information from the Garda Síochána or the Director of Public Prosecutions, as the case may be, regarding a decision not to prosecute a person for an alleged offence”.
Amendments Nos. 70 and 71 are related and may be discussed together.
I move amendment No. 70:
In page 17, line 12, to delete “who is resident in the State”.
This amendment is about removing residence as a condition and to remove the words "who is resident in the State". We are looking for An Garda Síochána to allow for a foreign police service in whose jurisdiction an alleged crime occurred, and where somebody in Ireland has told them about the crime. I do not know why one would have the condition that the person must be resident in the State. It is not clear. The Minister does not speak of habitual residence, rather it is legal residence, which would exclude many people who are in Ireland for relatively lengthy periods. It is also not clear if it means residence as defined in tax legislation or is it somebody with a valid visa or something else. It would exclude people who are undocumented or people who are waiting for an asylum claim to be processed under section 12. They would not be able to go the Garda about something that happened them in their own country and enable the Garda to refer it onwards. I do not see why a person in Ireland must prove legal residency to have their rights vindicated as a victim. I do not believe it is necessary and it should be easy enough to remove it from the proposed legislation.
Under the legislation victims are not defined as people who have to live in the country; it could, for example, be an Italian tourist who suffers an assault while in Ireland on his or her holidays. They would be perfectly entitled to avail of the provisions under this Act.
Section 12 deals with offences occurring outside the State and I suspect - although I am interested to hear what the Tánaiste has to say - the Department is concerned that since this part relates to offences committed in other member states, we could have, for example, an Italian living in Rome who has never been to Ireland - although it seems implausible - making a complaint to An Garda Síochána about an offence that took place in Italy. That could be the concern, otherwise it seems a bit unusual. I am, however, interested in the Minister's comments in this regard.
The Tánaiste may respond to both Deputies and may also discuss her own amendment No. 71.
Section 12 requires the Garda Síochána to forward a complaint received about an offence that has occurred in another member state to that member state as soon as is practicable. There is an exception in circumstances where the Garda has the power to prosecute the offence in the State and intends to institute proceedings.
Amendment No. 71 is a technical amendment to change the words “institute proceedings” to "exercise that jurisdiction" to ensure that the gardaí can investigate the offence before deciding whether or not to institute proceedings.
I see what the Deputy is doing in amendment No. 70. He wants to extend the scope of section 12 which requires the Garda Síochána to forward a complaint received about an offence that occurred in another member state to any person who makes a complaint in this State rather than just residents of the State. I should note that section 12 is not concerned with a person's residency status within the State but simply whether a person is resident or not. The amendment goes further than is required by the directive but I do not have any problem accepting it.
I move amendment No. 71:
In page 17, line 15, to delete "proposes to institute proceedings" and substitute "proposes to exercise that jurisdiction".
Amendments Nos. 72 to 74, inclusive, and No. 78, tabled by Deputy Daly, have been ruled out of order on the basis that they may represent a potential charge on the revenue. That brings me to amendments Nos. 75 to 77, inclusive, which have been withdrawn.
Amendments Nos. 79, 108, 109, 114 and 115 are related and may be discussed together.
I move amendment No. 79:
In page 18, to delete lines 6 to 10 and substitute the following:
“(5) Where a victim of an alleged offence has been assessed under section 14 and the investigating authority has identified specific protection needs in relation to the victim, the presiding judge shall be provided with a copy of the report by the investigating authority. The investigating authority, Director of Public Prosecutions, or the presiding judge, as the case may be, shall, when considering whether the victim would benefit from special measures during the course of any criminal proceedings relating to the alleged offence, have regard to the fact that specific protection needs have been identified under section 14 in relation to the victim concerned.”.
This involves letting judges know about special protection needs. Section 14 provides for an assessment of a victim's special protection needs to be carried out and for that report to be compiled. The amendment is saying that report should be provided to the presiding judge in the victim's case and the judge, along with the investigators and the Director of Public Prosecutions, DPP, shall have regard to the special protection needs identified under section 14 during the course of the proceedings. The reason for this is to assess whether the person has any special needs in the conduct of the court case. The treatment of some victims of sexual violence in particular and how they have been dealt with in the courts has been a talking point because it has been incredibly problematic for people who have been re-traumatised by their treatment in court. There should be no excuse for the judge not knowing how vulnerable a person is. That should not in any way undermine the trial. It does not invalidate the rights of the accused or anything like that. It is just a matter of being aware of their vulnerability. I feel quite strongly about this because judges' mishandling of cases of sexual violence have been well documented in the media and in some instances this has been arguably almost worse than the original offence.
Amendment No. 114 is similar to Deputy O'Callaghan's and Deputy O'Brien's amendments in this area. It is pretty self-explanatory. It proposes that victims of domestic or sexual crime can be accompanied by a support worker unless the court orders otherwise. That is critical because they go through the legal process alone at a time when they are vulnerable.
The details of my amendment No. 109 are similar to those outlined by Deputy Daly. I am seeking to ensure that a person who is a victim of a sexual crime can be accompanied by certain individuals and support workers during the course of the hearing. I will be interested to hear what the Minister has to say in respect of the proposed amendment.
Amendments Nos. 108 and 115 are in Deputy O'Brien's name. Would he like to speak to them before I invite the Minister to reply?
No, I am happy to hear the Minister.
Amendments Nos. 79, 109 and 115 provide that a copy of every victim assessment report must be given to the judge in the proceedings. While I have sympathy with what Deputy Daly says about the needs of the victim and how important it is that everyone is aware of them, I want to point out some of the consequences of this amendment. The concerns about it are fairly fundamental. If the assessment report were to be given to the judge, there would also be an obligation to disclose it to the defence. The Bill has been drafted very carefully to ensure these assessment reports do not become part of the criminal proceedings to prevent disclosure to the defence and any possible cross-examination of the victim regarding their contents.
Assessments will frequently contain sensitive and confidential personal information regarding the victim and his or her personal circumstances, including vulnerabilities to victimisation and intimidation. It would be very inappropriate for such information to be disclosed to the defence. These amendments provide that assessments would have to be provided to every District Court judge. Assessments may contain information on previous offences or orders relating to other previous conduct by the accused which pose a risk to the victim. If the case were a summary case, this could be prejudicial to the rights of the accused as the judge would have been provided detailed information on the victim, the offender and the offence from the victim's perspective. The Deputy can see that basic issues arise here which I am sure are not intended by the amendment. I do not think it would be right to go down that route for the obvious reasons of all that information being given in a way that could be damaging.
Amendments Nos. 108, 109 and 114 provide a right for a victim to be accompanied in court by a support worker. They mirror new provisions in the Domestic Violence Bill 2017 which make a similar provision for a victim of domestic violence to be accompanied in court when applying for a safety or barring order. However, the provision is not required in respect of criminal offences. While domestic violence proceedings are heard in camera, criminal proceedings are heard in public. As such, the victim has an existing right to be accompanied by any person or persons he or she wishes to accompany him or her during court proceedings.
There are a range of provisions on the Statute Book which provide a power for the court to exclude the public or members of the public from criminal proceedings, including section 19 of this Bill. Such provisions generally allow for a parent, relative or friend of the victim to remain in court where other members of the public have been excluded. I am not aware of any concerns relating to the ongoing court accompaniment of victims of sexual offences by support workers, which the Department funds. However, I will examine these provisions to ensure they are sufficient to ensure a support worker would also be allowed to remain in court with a victim in such circumstances.
I am persuaded by what the Tánaiste has had to say in respect of disclosure of reports by prosecuting authorities because if they go to a judge they necessarily go to the defence. She may be right that it may have consequences beyond what is intended here. Also, in respect of people being accompanied, that is possible even in cases which are in camera. I thought it might be of benefit to specify that on a statutory basis but nonetheless, in light of what the Tánaiste says, I will withdraw amendment No. 109 and think about it for Report Stage.
In terms of my amendment No. 79, the Minister has made a strong argument. There was no way that we want this information being handed over to the defence or anything like that. The aim of the amendment is to tackle the re-traumatisation of victims, as a result of some of their experiences in some of our courts, because of the way in which the Judiciary run the courts. I know the matter strays into other issues such as judicial counsels and all the rest. The desire was that if the judge was aware of the needs of a person and how vulnerable he or she was then the room for some of the most appalling things that have happened in our courts to recur would probably be lessened. I will withdraw my amendment for now and will consider how it might be dealt with on Report Stage. I would like this matter dealt with then. All of these amendments relate to how isolating the court experience can be for a victim who is, legally, present on his or her own. Nobody is there for him or her. In particular, cases of sexual violence and rape are very much more intimate and personal crimes and leave people feeling very vulnerable. In such cases the victim should be accompanied. I am aware that there is a provision that a victim can be accompanied but I do not see any harm in us specifying this aspect. I shall withdraw my amendment and return to it on Report Stage.
Amendment No. 114 is grouped with amendment No. 79. What has Deputy Daly decided to do with her amendment No. 114?
I will withdraw the amendment but I might resubmit it. Deputy O'Callaghan has withdrawn his amendment so I had better withdraw mine.
It is not compulsory. It is the Deputy's call.
I know. We will consider it on Report Stage. It may be covered.
Amendments Nos. 79 and 114 have been withdrawn.
I withdraw amendments Nos. 108 and 115.
Amendments Nos. 80 and 81, 83, and 86 to 96, inclusive, have been deemed out of order as they represent a potential charge on the Revenue. All of the amendments bar amendment No. 94 are in the name of Deputy Clare Daly.
Amendments Nos. 82 to 85, inclusive, are related and may be discussed together. I advise that if amendment No. 82 is agreed then amendment No. 83 cannot be moved. However, the amendments are in the grouping and they will all be addressed together.
As amendment No. 82 is in the name of the Minister I invite her to open the contributions.
I move amendment No. 82:
In page 18, lines 37 and 38, to delete “the personal characteristics of the victim referred to in paragraph (d)” and substitute the following:
“the personal characteristics of the victim, including such characteristics as are referred to in paragraph (d)”.
Section 14(2) requires a member of the Garda or an officer of the Ombudsman Commission, when carrying out an assessment of the needs of a victim, to have regard to a number of listed matters. One of these matters, in paragraph (d), is a non-exhaustive list of personal characteristics of the victim. Paragraph (e) is whether the crime appears to have been committed with a discriminatory motive.
Concerns were raised on Second Stage that the wording of section 14(2)(e) would limit the basis of hate crime to the personal characteristics listed in section 14(2)(d). This was never the intention. Amendment No. 82 aims to clarify that the basis of hate crime may include, but is not limited to, characteristics listed in paragraph (d). In fact, my amendment covers the points raised in amendments Nos. 83 and 84 and will have the same effect.
Amendment No. 85 deletes “hate crime” from the list of factors in paragraph (f) as it has already been addressed separately in paragraph (e). My amendment has the same impact as the Deputies had suggested needed to be done in their amendments.
I support the Minister's amendment No. 82 so I withdraw my amendment No. 84.
The Minister's amendment covers the concerns expressed in my amendment and that of Deputy Daly. Our concern was that the personal characteristics were going to be limited to what is set out in paragraph (d). It is apparent from the amendment put forward by the Minister that that will not be the case, which is what was the intention of our amendments. I am happy, subject to what Deputy Clare Daly says, to withdraw amendment No. 83.
Yes, that is fine.
We can note that the amendment has been withdrawn. It could not have been moved if amendment No. 82 had been passed. We will officially mark it as being withdrawn.
I move amendment No. 85:
In page 19, lines 2 and 3, to delete “sexual violence, exploitation or hate crimes” and substitute sexual violence or exploitation”.
Amendments Nos. 97 to 100, inclusive, are in the name of Deputy Daly. They have all been deemed to represent a potential charge on the Revenue and ruled out of order, as a consequence.
Amendments Nos. 101 and 102 are related and may be discussed together. Both amendments are in the name of the Minister.
I move amendment No. 101:
In page 21, line 10, to delete “investigation,” and substitute “investigation of, or any criminal proceedings relating to, the alleged offence, or”.
Amendments Nos. 101 and 102 amend the wording in section 15 that relates to the revised amendment to make it clear that a revised amendment can identify protection needs, which may benefit the victim both during the course of the investigation and during criminal proceedings. The latter had been omitted in error. There is also a lack of clarity in the language used relating to protection needs and special measures that could preclude additional special measures being identified in a revised assessment if protection needs, but no special measures, were identified in the original assessment.
The effect of my amendment is to broaden the provision to ensure that a revised assessment can cover all circumstances and identify any change to the protection needs and special measures identified. It is an enabling provision that broadens what already exists and I ask Deputies to support my amendment.
I move amendment No. 102:
In page 21, to delete lines 11 to 17 and substitute the following:
“(b) where specific protection needs were previously identified in respect of the victim during the course of an assessment—
(i) whether any protection measure or special measure identified during the course of the assessment is no longer required, and
(ii) whether the needs of the victim are such that he or she might benefit from further protection measures or special measures during the course of the investigation of, or any criminal proceedings relating to, the alleged offence.”.
I move amendment No. 103:
In page 22, line 2, to delete “may” and substitute “shall”.
The amendment is also in the name of Deputy O'Callaghan. It refers to the age old argument about the difference between the words "may" and "shall". Our amendment seeks to delete the word may and substitute it with the word "shall".
I am interested in hearing what the Minister has to say in respect of making the provision mandatory rather than discretionary.
Amendment No. 103 would require the special measures, set out in section 16, to be implemented in every case for every victim.
A tailored victim-centred approach is a central plank in the victims' directive and in this Bill. The approach requires an individual assessment of each victim to establish what, if any, special measures might be needed to mitigate the impact of the investigation or court proceedings on the victim.
However, the directive never envisaged that every victim would have one or more special measures applied to him or her. This was clear during the negotiation of the directive and in the choice of the term “special measures”, rather than a broader term such as “victim measures”.
Every response in this area needs to be proportionate. For example, our statutes already permit the video recording of evidence, in chief for children who have been victims of sexual crimes, in a special interview suite away from uniformed police officers, marked police cars and busy police stations. This is entirely appropriate for a child victim of sexual abuse. It would obviously be inappropriate and disruptive if somebody who was, for example, reporting the theft of a mobile phone were to be taken to an off-site interview suite. I think that is obvious.
A general access to special measures would give rise to unreasonable delays for other victims who are clearly in need of special measures. It would also be putting public money to a use for which, if one looks at it logically, it is not necessary. It would be better to retain the entirely appropriate level of discretion in relation to the application of special measures generally, during court proceedings or investigations.
That is persuasive. Not every victim will necessarily want all of these measures that would be available. The Tánaiste referred to somebody who has had a mobile phone stolen from them. Under the legislation, that person is a victim. They have suffered economic loss. I appreciate the answer given. We may return to it on Report Stage unless Deputy O'Brien wishes to pursue the matter.
I am quite happy to come back to it on Report Stage. Special measures should obviously be implemented for certain victims but not in the case of all victims. I will come back to it on Report Stage.
Amendments Nos. 104 and 105 in the name of Deputy Clare Daly are been deemed out of order as they represent a potential charge on the Revenue.
There are two amendments to section 17. Amendment No. 106 in the name of Deputy Clare Daly is deemed out of order as it represents a potential charge on the Revenue.
Amendment No. 107, as best as I can identify from all of these listings, is a stand-alone amendment.
I move amendment No. 107:
In page 23, to delete lines 1 to 4 and substitute the following:
“(2) A member of the Garda Síochána or an officer of the Ombudsman Commission, as the case may be, shall, in determining who is to be the appropriate person to accompany a child to an interview or court proceedings pursuant to subsection (1), have regard to any views expressed by the child taking into account his or her age and level of maturity.
(3) Where an appropriate person is appointed to accompany a victim, he or she shall be entitled to remain in court during the whole of any hearing.
(4) In this section, “appropriate person” means—
(a) a relative of the child, or
(b) any other person,
who is 18 years or over.”.
Amendment No. 107 amends section 17 to ensure that when the Garda or Ombudsman Commission appoint a person to accompany a child at interview or during criminal proceedings, they must take into account the child’s view with regard to who the accompanying person should be. That is very positive.
It has always been envisaged that the child’s views would be considered in appointing such a person. This person is intended to be a support to the child. However, as concerns have been raised that this is not explicitly provided for, I am tabling this amendment which will ensure the child's views in respect of who he or she wants to accompany him or her will be taken into account. That means that consultation with the child and the taking into account of the child's view would have a statutory basis.
I would like to briefly address this amendment. I addressed a related query to the Minister of State, Deputy Stanton, when he was here regarding the capacity of the victim. I see a situation here where I can address this matter again. The Minister is talking about the views expressed by the child. There are situations where, irrespective of the age of the individual, he or she is regarded as a child for life. I am speaking of people with Down's syndrome or other such intellectual disabilities which affect their capacity to properly present. It is all very well to refer to capacity legislation, but should there be reference to provision in respect of a situation where the victim is indeed someone of adult years but who nevertheless, because of their reduced ability, is unable or incapable of fully engaging on their own? Accompaniment was the first question put to the Minister of State, Deputy Stanton. He did not address it satisfactorily from my perspective. In respect of amendment No. 107, is this something the Minister feels is covered or does it require further address?
Section 21(1) states that persons who are involved "shall, when dealing with a victim ensure that any oral or written communications with the victim are in simple and accessible language and take into account the personal characteristics of the victim including any disability, which may affect the ability of the victim to understand or be understood". The issue is dealt with there in the sense that there is an obligation to take into account any capacity issues and respond to them appropriately when dealing with a person, in order that they understand it take into account any disability. It comes under the section entitled "Communication, interpretation and translation". That certainly deals with the issue of being sensitive to the personal characteristics of a person or any disability her or she may have.
The other point is that under the assessment of a victim, there is also a description of any requirements to be taken into account, which include the personal characteristics of the victim including his or her age, gender, health and so on. I will not go through it all, but it deals with disability. I can take the issue which the Chairman has raised and see whether there is a need for any further provision in respect of the obligation to communicate and whether we need to elaborate it any further in respect of the circumstances which he has described, or whether we feel that these two sections capture the Chairman's concerns. I certainly believe it is there in a broad sense. I think the Chairman's query is whether anything more specific is required to make sure that it happens and appropriate action is taken.
Tragically, the prompt is that the surviving victim of the events which unfolded in Fermanagh earlier in the week was somebody with Down's syndrome. I am anxious to ensure that we do not miss something here when we are dealing with victims of crime. No other members of the committee have indicated on amendment No. 107.
Amendments Nos. 110 and 111 are deemed out of order as they represent a potential charge on the Revenue.
I move amendment No. 112:
In page 23, lines 9 to 12, to delete all words from and including “when” in line 9 down to and including “concerned” in line 12 and substitute the following:
“in determining whether to make an application to the court for a special measure specified in subsection (2) during the course of any criminal proceedings related to the alleged offence, have regard to the specific protection needs identified under section 14 in relation to the victim concerned”.
I move amendment No. 113:
In page 23, between lines 12 and 13, to insert the following:
“(2) The special measures referred to in subsection (1) are:
(a) the exclusion of the public, any portion of the public or any particular person or persons from the court during such criminal proceedings pursuant to section 19;
(b) directions under section 20 regarding the questioning of the victim in respect of his or her private life;
(c) measures under Part III of the Criminal Evidence Act 1992 enabling the victim to give evidence through a live television link or an intermediary or enabling a screen or other similar device to be used in the giving of evidence.”.
That brings us to amendment No. 119. We have already indicated that amendment No. 115 has been withdrawn.
Amendment Nos. 116 and 140 are grouped together. They are in the name of Deputy O'Brien.
I move amendment No. 116:
In page 23, between lines 12 and 13, to insert the following:
"19. The Minister shall introduce regulations to be made under this legislation setting out procedure and best practice guidelines to be followed whenever an intermediary is proposed to be used in Court to mediate the responses of a victim or other witness."
I will withdraw the amendment but I reserve the right to resubmit it and amendment No. 140 on Report Stage.
Amendment 117 is also in the name of Deputy O'Brien and is grouped with amendment No. 119 in the name of Deputy O'Callaghan.
I move amendment No. 117:
In page 23, between lines 12 and 13, to insert the following:
“19. It shall be a criminal offence for the accused or his or her supporters to record by any electronic means whatsoever court proceedings.”.
I intend to withdraw the amendment and consider it further prior to Report Stage.
I move amendment No. 118:
In page 23, to delete lines 25 to 27 and substitute the following:
“(a) the right of—
(i) a parent, relative or friend of the victim,
(ii) where the accused person is under the age of 18 years, a parent, relative or friend of the accused person, or
(iii) an appropriate person under section 17,
to remain in court, and”.
This technical amendment clarifies that if the court excludes the public or a portion thereof from courtroom proceedings and the accused is a child, his or her parent, relative or friend may remain in the court. The original text intended to provide for this but it is unclear.
Does Deputy O'Callaghan wish to speak to amendment No. 119?
I move amendment No. 119:
In page 23, between lines 29 and 30, to insert the following:
“(3) (a) It shall be an offence for any accused person or other person or persons acting at his or her direction or on his or her behalf, to make any form of contemporaneous electronic recording by any means whatsoever of live criminal proceedings in which a victim of sexual violence is required to attend and give live evidence, whether in court or by means of video link.
(b) Any person convicted of such an offence on a summary basis shall be liable to a maximum penalty of 12 months imprisonment and/or a fine, and any person convicted of such an offence on indictment shall be liable to a maximum penalty of five years imprisonment and/or a fine.”.
I ask the Minister to give the matter to which this amendment relates consideration before Report Stage. It is serious if evidence in court is being recorded, whether by the accused or any other person. The issue needs to be examined. However, like Deputy O'Brien, I will withdraw my amendment.
Will the Minister indicate her intentions regarding what Deputy O'Callaghan has requested?
The rules of court currently make provision for the recording of court proceedings. Order 67A, rule 3, of the Circuit Court rules and Order 12B, rule 3, of the District Court rules provide that the record of any criminal proceedings shall be made or cause to be made by a person appointed by the Courts Service. The rules separately provide that unless otherwise authorised by the rules or by the court, no person other than the Courts Service or a person authorised by it on its behalf shall make any record of proceedings otherwise than by written or shorthand note. Where persons are authorised by the court to record proceedings, it is done subject to and in accordance with any direction given by the court. If there is a risk that persons in the court could seek to make an unauthorised recording, the courts may also rely on their inherent jurisdiction to regulate proceedings and prohibit the making of such a recording. Further, under section 19 of the Bill, if a court is satisfied that there is a need to protect a victim from victimisation, intimidation or retaliation, the court may, on application of the prosecution, exclude the public or individuals from the court.
It is currently illegal to record court proceedings without authorisation.
That is correct.
What are the consequences of doing so? The Minister can come back to me if necessary.
I will revert to the Deputy on that question.
It is not a statutory offence but it is contempt of court-----
That is correct.
------which is punishable by imprisonment. It may be worth making it a statutory offence rather than leaving it vague. The Minister may examine that option.
I will consider that option. I agree that it would be reassuring to victims if recording court proceedings without authorisation were a statutory offence.
There is a single amendment to section 20. I invite the Minister to introduce to amendment No. 120.
I move amendment No. 120:
In page 24, line 2, after “victim” to insert “and is unrelated to the offence”.
Section 20 provides the power for a court to make a direction restricting the evidence which may be adduced or questions which may be asked about a victim's private life. Amendment No. 120 clarifies that the restriction only applies to evidence adduced or questions asked about a victim's private life and are unrelated to the offence. It is an important amendment.
Amendments Nos. 122 to 125, inclusive, in the name of Deputy Clare Daly, have been deemed out of order as they would involve a potential charge on the Revenue.
Amendments Nos. 126 and 127 have been deemed out of order as they would involve a potential charge on the Revenue.
Amendments Nos. 128, 129 and 131 to 135, inclusive, in the name of Deputy Clare Daly have been deemed out of order.
I move amendment No. 130:
In page 25, to delete lines 27 to 31 and substitute the following:
“(2) The period referred to in subsection (1) may be extended where the Garda Síochána,
the Ombudsman Commission or the Director of Public Prosecutions, as the case may
be, is satisfied that circumstances exist that warrant the extension.”.
This is a minor amendment to section 23 in regard to the circumstances in which the time limit for a victim to seek a review of a decision to refuse a request for interpretation or translation can be extended.
Amendment No. 136 has been deemed out of order as it would involve a potential charge on the Revenue.
Amendment No. 137 was discussed with amendments Nos. 10, 11 and 137 to 139, inclusive.
I move amendment No. 137:
In page 26, to delete lines 27 and 28 and substitute the following:
“ “Interpretation and application - Part III
12. (1) In this Part—”.
Amendment No. 138 was discussed with amendments Nos. 10, 11 and 137 to 139, inclusive.
I move amendment No. 138:
In page 27, to delete line 27 and substitute “person.”.
Amendment No. 139 was discussed with amendments Nos. 10, 11 and 137 to 139, inclusive.
I move amendment No. 139:
In page 27, between lines 27 and 28, to insert the following:
“(2) The application of this Part is not dependent on the commission of an offence having to be established (nor is it dependent on establishing whether the person concerned suffered any harm caused by an offence).”,”.
I invite the Minister to address amendment No. 141.
I move amendment No. 141:
In page 31, to delete line 3 and substitute the following:
“(j) in section 19A(13), by the substitution of “subsection (11)” for “subsection (12)”, and”.
This is a technical amendment to the new section 19A of the Criminal Evidence Act 1992 which regulates the disclosure of counselling records in sexual offence trials.
Amendments Nos. 142 and 143 have been deemed out of order.
Amendment No. 144 is in the name of the Minister. Amendment No. 145 has been deemed out of order. If accepted, amendment No. 144 would delete section 30 of the Bill.
I move amendment No. 144:
In page 33, between lines 12 and 13, to insert the following:
“Non-compliance with Act
30. (1) A failure by an individual to observe any provision of this Act shall not of itself—
(a) render him or her liable to any criminal or civil proceedings,
(b) prevent any criminal or civil proceedings relating to an offence from being instituted or prosecuted, or
(c) affect the lawfulness of—
(i) the custody of a person in relation to an offence, or
(ii) the admissibility of any evidence in a trial of a person for an offence.
(2) For the purposes of subsection (1), “criminal or civil proceedings” does not include disciplinary proceedings.”.
Amendment No. 144 simplifies and clarifies section 30 of the Bill by replacing the list of persons to whom it applies with the words "an individual".
Consequently, the definitions of the various staff members can also be deleted. The amendment will ensure that any individual staff member or employee who may have been omitted from the list, or who is in the future appointed under a different statutory provision, will also benefit from the protection. It also makes it clearer that the protection applies only to individuals and not to the office or agency to which they belong.
What is the sanction for a garda who does not comply with the Act? Is it simply a disciplinary breach?
I move amendment No. 146:
In page 33, after line 35, to insert the following:
“31. Within two years of the enactment of this Act, the Minister shall review the operation of this Act specifically with regard to non-compliance with the Act with a view to identifying any specific penalties that may need to be instituted.”.
There is an automatic review with all new legislation so I am quite happy to allow that procedure to carry on. It is not necessary to table an amendment calling for a review when we know that every piece of legislation is subject to a review after a period of time.
Will the Minister confirm that there will be a review?
Yes. Deputy O'Brien is right. We have to review the functioning of the Bill and report to the Oireachtas 12 months after its enactment. I have no problem with the amendment but it is not necessary.
Amendment No. 147 has been ruled out of order.
Can we discuss it?
Not really. It is a stand-alone amendment for a new section. Earlier, I allowed a discussion where there were other amendments. If the Deputy wants to say a brief word on the amendment, she may.
Deputy O'Callaghan and I have tabled amendments with similar provisions. The Irish Human Rights and Equality Commission has recommended the establishment of an ombudsman for the victims of crime and a complaints procedure and these are now urgent. The other amendment deals with the training of people working within the justice system. If we are not allowed to table these amendments, I would appeal to the Minister to do so. They are in keeping with recital 62 of the victims' directive and the advice of all human rights advisory bodies. The establishment of a human rights one-stop shop is urgent, particularly given that the commission for the support of victims of crime no longer exists. All funding to these organisations is directed by the victims of crime office, which is a mad state of affairs. The Victims' Rights Alliance, who have appeared before us on occasions over the past four years, have met with all ombudsman offices and they would be happy to team up with them to deal with the issue. If we cannot deal with it, can the Government deal with it?
Can the Minister reply? The proposed amendment would have introduced a new section, as would amendments Nos. 149 to 151, inclusive.
It would be a significant decision to create another position of ombudsman for victims. We are at a critical point in this country, and in Europe, on victims' rights and we are at a turning point with the implementation of the victims' directive. I will examine the proposal but it would require a Government decision because it would involve significant resources. It will be on the agenda in the medium term, if not in the immediate future, because these are significant issues. The victims' directive means there needs to be a sea change in the attitudes to victims across the criminal justice system. I will examine it but I cannot guarantee that I will be able to come back on it by Report Stage. I will ask the Department to examine the implications and the submissions made by the human rights body and others. I will also see if we can give some reassurance on the training issue. It may not involve a statutory provision. We are trying to ensure that victims are heard, their rights are guaranteed, their needs are identified and there are solutions.
I understand that the Minister may not be able to come back to this on Report Stage but she might give a commitment to look at setting up an ombudsman's office during the 12-month statutory review.
That is a fair suggestion. I appreciate it.
I move amendment No. 148:
In page 33, after line 35, to insert the following:
“Safeguards in the context of restorative justice
31. (1) A court or other public body shall not invite a victim to participate in a restorative justice process unless satisfied that the victim would be reasonably safeguarded against secondary and repeat victimisation, intimidation and retaliation and would have access to safe and competent restorative justice services, subject to at a minimum the following conditions:
(a) the restorative justice services are used only if they are in the interest of the victim, subject to any safety considerations, and are based on the victim’s free and informed consent, which may be withdrawn at any time;
(b) before agreeing to participate in the restorative justice process, the victim is provided with full and unbiased information about that process and the potential outcomes as well as information about the procedures for supervising the implementation of any agreement;
(c) the offender has acknowledged the basic facts of the case; and (d) any agreement is arrived at voluntarily and may be taken into account in any further criminal proceedings.
(2) Any communications in the course of a restorative justice process to which this section applies that are not conducted in public are confidential, and shall not subsequently be disclosed, save with the agreement of the parties or where a court determines that disclosure should be made in the interests of the administration of justice.”.
Amendment No. 148 was discussed with amendment No. 6.
These amendments are about restorative justice. The Minister said she would come back and look at the whole package.
This was dealt with in the second grouping.
The entire grouping was withdrawn.
I move amendment No. 152:
In page 33, after line 35, to insert the following:
“Safeguards in the context of restorative justice
31. (1) A court or other public body shall not invite a victim to participate in a restorative justice process unless satisfied that the victim would be reasonably safeguarded against secondary and repeat victimisation, intimidation and retaliation and would have access to safe and competent restorative justice services provided by any agency or body listed in the Schedule to this Act, subject to at least the following conditions:
(a) the restorative justice services are used only if they are in the interest of the victim, subject to any safety considerations, and are based on the victim’s free and informed consent, which may be withdrawn at any time;
(b) before agreeing to participate in the restorative justice process, the victim is provided with full and unbiased information about that process and the potential outcomes as well as information about the procedures for supervising the implementation of any agreement;
(c) the offender has acknowledged the basic facts of the case; and
(d) any agreement is arrived at voluntarily and may be taken into account in any further criminal proceedings.
(2) Any communications in the course of a restorative justice process to which this section applies that are not conducted in public are confidential, and shall not subsequently be disclosed, save with the agreement of the parties or where a court determines that disclosure should be made in the interests of the administration of justice.”.
I move amendment No. 153:
In page 33, after line 35, to insert the following:
The Garda Síochána
The Courts Service
The Director of Public Prosecutions
The Irish Prison Service
The Garda Síochána Ombudsman Commission
The Probation Service”.
I remind members that we will continue in session to deal with a very important matter from last week. I ask them not to run for the door when this Bill is concluded.
I move amendment No. 154:
In page 5, line 8, after “amend” to insert “the Criminal Procedure Act 1967,”.
This amendment amends the Long Title of the Bill to include a reference to the amendment of the Criminal Procedure Act 1967. The Act of 1967 is amended by section 25 of this Bill but the reference in the long title was omitted in error.
I thank members for their constructive approach to this Stage of the Bill.
That concludes our consideration of Committee Stage of the Bill. It is recommended members submit Report Stage amendments to the Bills Office without delay as Report Stage may be tabled at short notice. I encourage members to take the appropriate steps in respect of any issues that have arisen as a result of amendments being deemed out of order.
I again thank the Tánaiste and her officials for their attendance. I recognise, because it is only fair to do so, the substantial work members have done in preparation for Committee Stage. It is regrettable that it has not been possible to progress many of the amendments - arguably, all of them meriting inclusion - at this stage. I commend the Deputies on their diligence in respect of these matters. It is also appropriate to record our thanks to all the NGOs, including the Victims Rights Alliance and Ms Maria McDonald, who presented to the committee on these matters on a previous occasion, as well as the other groups that have had a direct interest in and a substantial input into the preparation of amendments before us today. Once again, I offer our gratitude to the Tánaiste. I ask members to remain here during the one-minute suspension of the meeting as we have other matters to discuss.