Wednesday, 20 November 2019

Ceisteanna (7)

Thomas Pringle


7. Deputy Thomas Pringle asked the Minister for Justice and Equality if the low uptake of legal advice under section 26(3) of the Civil Legal Aid Act 1995 (details supplied) has been investigated; the number of applications made in this regard each year since the enactment of the Act; and if he will make a statement on the matter. [47799/19]

Amharc ar fhreagra

Freagraí ó Béal (8 píosaí cainte) (Ceist ar Justice)

This question concerns the take-up of the provisions whereby legal advice is available to people making allegations, or the Director of Public Prosecutions prosecuting on their behalf, of rape offences, aggravated sexual assault, defilement of children or incest. It appears there is a very poor take-up in this regard. What is the Minister's Department doing to find out what the story is?

I am acutely aware of the particular difficulties victims of sexual offences encounter during the investigation and prosecution process.

This question concerns section 26(3A) of the Civil Legal Aid Act 1995, as amended, which provides for legal advice to be made available, free of contribution and without any means or merits criteria, to complainants in prosecutions for rape and certain sexual assault cases.

However, only a small number of people avail of the advice service, as opposed to the legal aid service, each year. The number of applications have been as follows: five in 2013, eight in 2014, two in 2015, six in 2016, four in 2017, one in 2018, and two so far this year.

I am aware that the provisions in the current legal aid legislation in respect of both legal advice and legal aid during prosecutions, though well intended, are somewhat limited.

A victim may be asked to make decisions at various points during the investigation or the trial with far-reaching consequences while they are very vulnerable. In many cases they will be emotionally traumatised, upset or in a very fragile and difficult position.

The low demand for the advice service may reflect a low awareness of its availability or the fact that it is only available once a prosecution has actually been commenced. It is not available to a person who may be reporting an alleged offence to An Garda Síochána or where a decision not to prosecute the alleged offence is taken.

The service is advertised on the Legal Aid Board website and is on the Garda Síochána website, among other places. There is no automatic referral to the service, and the complainant must apply to a law centre for the service. Applications may also be made online.

I have asked an expert group chaired by Professor Tom O'Malley of National University of Ireland Galway to examine this matter carefully and to bring forward recommendations that will help protect vulnerable witnesses and help ensure they can deliver the best possible evidence in a court situation. That group is due to publish its report before the end of this year.

The Minister gave a good outline in his response as to what is available but said very little about why people are not availing of the service. As Minister, his responsibility is to see why it has not been taken up. It is a very worthwhile service. In 2005, Amnesty International stated, "In practice this provision has not been used, and victims are generally unaware of its existence." It is a failing in itself on the part of his Department, the Garda and the prosecution services that victims are unaware that this is available to them. Yes, it is very limited in that it is only available when the case has proceeded to prosecution, but I think something like 80 or 90 cases are prosecuted every year. Nonetheless the uptake is still extremely small. It is very worrying, particularly for victims, when the prosecution for the case is actually a witness rather than a party to the case. That can be very traumatic for the victims.

The Minister mentioned that the O'Malley report will deal with this, and that is welcome, but the problem with that is that Professor O'Malley was initially supposed to report at the end of 2018, and now it is being said he will do so in 2019 or 2020. Such a long delay is very worrying.

I would be happy to take serious note of any point raised by Deputy Pringle or any other Deputy if there is a scheme of further information that might be applied in certain circumstances. The legal advice, the legal aid service, is available right throughout the country. The Legal Aid Board provides legal aid and advice primarily through the network of law centres and the solicitors employed by the board. There are 30 full-time and 12 part-time law centres. The practice is that if the case is being heard in the Criminal Courts of Justice in Dublin, as most rape and serious sexual assault cases are, a Dublin law centre will provide the representation.

Legal advice and support are not the only form of advice and support that can be of help. An Garda Síochána has set up specialised units tasked with improving service to victims of domestic and sexual violence, improving the investigation of domestic and sexual violence incidents and identifying and managing risk. These divisional protective services units have been rolled out on a phased basis across 13 divisions to date. The units will significantly improve services to victims, including children.

I thank the Minister again, but the problem is that this is governed by the Civil Legal Aid Act 1995. It is 2019 and this is only being reviewed now to see why there is a poor take-up. That is very problematic. Perhaps the role we can play is to ask why these provisions are not being reviewed now. We are not in a position to bring the actual information to the Minister, but his Department is obviously not in the position of going out and looking for the information either. That is worrying because these provisions are put in place to make it easier for victims and to assist the prosecution of these very serious crimes. As part of that we must have a review as to how these provisions are working and what we need to do to change them. While this information service is very limited, quite a number of cases are going to court and going through the whole prosecution service without the service being availed of, and we should be asking why.

I reject the Deputy's assertion that the law in this area is so outdated as to be less than relevant.

I did not say that.

I point, for example, to the Civil Law (Miscellaneous Provisions) Act 2011, which has extended the circumstances under which legal aid and advice may be proper to alleged victims and complainants, and to the Victims of Crime Act 2017, which has created a number of statutory rights for victims of crime, including the rights to receive comprehensive, timely advice, and to access appropriate information on the criminal justice system and victims' role in it. However, I go back to what I said in my initial reply.

We are currently finalising a revised updated victims' charter, for which the legal aid board provided updated material explaining the advice service to victims of rape and explaining the circumstances, process, practice and procedure in respect of sexual assault cases where those cases are going to court. The Deputy's comments will feed into the national review that is being undertaken under the chairmanship of Professor Tom O'Malley, the report of which I expect to have before the end of the year. I would be happy to share the contents and recommendations with Deputies, and I am sure it will be the subject of debate in the House.