Ms Caroline Counihan:

RCNI welcomes this opportunity to contribute to the pre-legislative scrutiny process on the Bill, which introduces a new section 17(1)(c) into the Criminal Justice (Victims of Crime) Act 2017, providing a new right to access legal advice for victims of sexual violence, gender-based violence, and violence in a close relationship. I will make four main points.

There is a need for legal advice for victims of sexual violence in criminal proceedings. The criminal justice system, though it has improved, remains daunting for these victims. The intimate nature of these offences, their association with still powerful rape myths and the fear of being victimised in cross-examination all combine to make many victims reluctant to make and sustain a criminal complaint. Having access to independent legal advice from early on can and does empower victims to make and sustain a complaint. In our view, such access should be the right of victims of sexual offences and arguably other serious offences.

While RCNI can provide some legal support to individual survivors on an ad hocbasis because, thankfully, it is funded to do so by the Department of Justice, unfortunately this additional assistance is not adequate to meet the needs of all victims for legal advice from offence to conclusion of criminal proceedings and beyond.

As members will be aware, victims of sexual and other offences now have the right to have their legal representative present whenever they report an offence to An Garda Síochána or make a formal complaint to An Garda Síochána, in addition to a person of their choice, subject to certain restrictions. In our view, victims should be able to exercise this right without worrying about the cost.

My second point follows on from the first. The current provision is not adequate to meet the needs of victims. I stress that I mean no criticism of the Legal Aid Board when I say this. In principle, RCNI welcomes any expansion of victims' rights to legal advice as they negotiate the criminal justice process. At present, victims of sexual violence are entitled to free legal advice from the Legal Aid Board regardless of means, provided that a prosecution is in being and that the accused person is charged with rape, aggravated sexual assault, defilement, incest or one of a short list of trafficking and prostitution-related offences. They are also entitled to free legal advice and representation from the Legal Aid Board, again regardless of means, in two limited situations: when there is a defence application for leave to introduce evidence into the trial of their other sexual experiences or when they wish to object to disclosure of their counselling records.

However, victims of sexual violence are not entitled to any free legal advice from the Legal Aid Board before anyone is charged with an offence. Neither are they entitled to that advice if the accused person is charged with sexual assault, by far the most common offence reported and charged. My experience is that the greatest demand for this advice is at two distinct stages: before the victim decides to make a formal complaint to An Garda Síochána; and later on, if the DPP decides not to prosecute in his or her case, and the victim must decide whether to look for the reasons for that decision and-or to seek a review of the decision. That said, of course, victims also look for advice and support at any stage throughout the investigation and prosecutorial stages, and beyond.

It will be seen that the existing provisions are not adequate to meet victims’ needs for legal information and advice. While An Garda Síochána is obliged to, and does, provide information about the criminal justice process itself and about protective measures, special measures and other rights specific to victims of crime, it is not its role to provide independent legal advice to victims of sexual violence, for instance, as to whether they should object to disclosure of counselling or other personal records, or whether they should request a review of the decision not to prosecute in their case.

Our third point is that while the Bill is welcome, it could go even further to improve legal support to victims. It represents a good start, but it could be improved further. For instance, RCNI would remove the qualification at the start of the section 17(1) of the Criminal Justice (Victims of Crime) Act 2017, "during the course of an investigation", as far as the right to legal advice is concerned, because so many victims in my 11 years' experience need detailed information and legal advice - perhaps more than once - before they decide to report the offence.

The RCNI suggests that, instead of using the word “provided”, the section should read “be informed of his or her right to be provided with legal advice from a solicitor [whether funded by the Legal Aid Board or directly by the Minister for Justice and Equality] about the criminal justice process to be followed so that criminal proceedings in respect of the alleged offence may be brought and heard”, or include something very similar in order that it would be clear that not only did the Legal Aid Board or another entity have responsibility for funding the provision of any advice requested but also that unwanted or unnecessary advice would not be provided.

RCNI also suggests considering amendments to section 26(3A) of the Civil Legal Aid Act 1995 to the effect that legal advice could be provided by the Legal Aid Board free of charge, regardless of the sexual offence involved, from the moment the offence took place until the conclusion of criminal proceedings at least, subject, of course, to the overriding control of the case staying with the prosecuting lawyer. It would also provide for attendance at the Garda station or other venue when the victim reported the offence or made a formal complaint, if the victim so wished. It would provide for legal advice and support to be made available to a victim whenever a negative decision on prosecution was received from the Director of Public Prosecutions.

Victims of sexual violence need advocacy support, as well as legal advice and information. The response of State agencies to victims of sexual violence has improved significantly in recent times. However, when that response is inappropriate, altogether lacking or downright wrong, many victims find it hard to address the issue, even if they know what their rights are. Rape crisis centres will do their best to provide advocacy support for their clients as far as they can within the limits of their training and expertise. Garda and court accompaniment volunteers are given some general training in the law and procedures relevant to victims of sexual offences, thanks to the Department of Justice and Equality which funds the programme, while they also have access to some legal support from RCNI. However, we would prefer to see a system in place under which each rape crisis centre would have continuous access to advocacy services for their clients from a dedicated and appropriately trained professional advocacy and support worker. To that end, we are applying for funding for a pilot scheme to employ such a worker at one or, possibly, two rape crisis centres. A scheme such as this is already working very well in Scotland and has been evaluated positively.

In our view, advocacy and support workers would complement the work of solicitors in providing legal advice and information for victims of sexual offences. It would be the role of these workers to make themselves available to listen to victims’ fears and concerns, provide for accompaniment to Garda interviews, court appearances and, elsewhere as necessary, to ensure victims would understand what their rights were and to liaise with legal advisers and gardaí and others, as necessary, to ensure the concerns of victims were heard and addressed. There is no question of their giving legal advice. Instead, they would refer victims to the appropriate sources to receive that advice.

We note that in his report on the law and procedure for serious sexual offences in Northern Ireland published in May Sir John Gillen recommended that general legal advice and information on the relevant law and procedure be made available to victims of sexual offences up to the commencement of a trial and that the Northern Ireland Department of Justice sensure the advocacy and support scheme, proposed to start there in 2020, be similar to the one already established in Scotland.

I am happy to answer questions about any aspect of this statement and on the issue of legal advice for victims of sexual violence more generally.