Ms Caroline Counihan:

RCNI, supported by Safe Ireland, welcomes this opportunity to address the committee on the issue of victims’ testimony. We would like to take acknowledge Government’s commitment to full implementation of the O’Malley review recommendations and the significant progress made so far. RCNI also acknowledges recent positive changes introduced by other agencies, for instance, An Garda Síochána and the Office of the Director of Public Prosecutions. This opening statement will summarise the main points of our submission and address a small number of specific issues.

Victims’ testimony is a key component of an effective criminal justice process. The pursuit of excellence in all contacts with victims of sexual offences by relevant professionals must be a key principle, both to minimise the risks of re-traumatisation of victims by the criminal justice process and to ensure that they are supported to give their best evidence in that process. The harm which can be caused by the criminal justice system itself to victims is real, and is sometimes described by them as worse than the sexual violence itself.

Victims of sexual violence should be seen as inherently vulnerable witnesses, Of these, some are additionally vulnerable, for example because of their young age or because of a disability, and all victims should be seen as individuals in need of individual supports. Many aspects of the criminal justice system can pose challenges for victims of sexual offences from the very beginning. These include a lack of access to legal advice, an inability to contact investigators, a lack of personal support, endless delays at each stage of the process itself, fears for their personal safety and privacy throughout the process and last but by no means least, fear of being subjected to lengthy and oppressive cross-examination on their private lives, going well beyond the facts of the offence itself. Good care of sexual violence victims begins from the moment that an offence is communicated, is multifaceted, takes account of individual needs, continues to the end of any trial and beyond, and involves effective collaboration between statutory agencies and NGOs.

Lengthy delays are not only re-traumatising in themselves but affect the quality of victims’ memories. The primacy of oral evidence in our criminal justice system is at odds with modern psychological science. This is now recognised elsewhere. As the Scottish judge, Lord Carloway, put it, "a person’s memory does not improve over time or being put under stress". For example, we could mitigate the negative effects on memory of lengthy delays between offence and trial by allowing at least the most vulnerable witnesses, namely, children and those with a "mental disorder" or communication difficulty, to have their entire evidence prerecorded and allowed to stand as their evidence at trial - not just as at present, their prerecorded evidence-in-chief. We could also allow any victim of sexual violence who wishes to do this to have their evidence-in-chief prerecorded and stand as their evidence at trial.

Access to special measures at court is difficult. Special measures remain hard to access in court for many victims of sexual violence who are neither children nor have a mental disorder. RCNI recommends that the current legislative framework is simplified and streamlined so that a presumption in favour of access to special measures is created for any victim of, or witness to, sexual violence. Serious consideration should be given to introducing special measures for accused persons, in order that the present legal culture, which is inclined to view special measures for victims as intrinsically unfair to the accused, will cease to see these measures as a threat to defence interests. The twin aims of improving supports for vulnerable witnesses and achieving a fair trial for the accused should not be seen as mutually exclusive. Any new legislative framework should include wide-ranging judicial powers to allow the introduction of any novel, individually tailored special measureto assist a vulnerable witness to give evidence, provided that is not contrary to the interests of justice. It should also address the gaps in the use of intermediariesin our current legislation, that is, the use of intermediaries should extend to the witness’s answers and should include witnesses whose mental condition is fine and who do not have a mental disorder but do have a communications difficulty.

Beyond special measures, our long-standing view is that any victim of sexual violence who needs it, should have access to support from a dedicated, professional advocacy and support worker from their first contact with either an NGO or An Garda Síochána. Our vision is a national network of professional advocacy and support workers to provide practical and emotional support, referrals, accompaniment services and links to other sources of information, advice and support, and whose role is distinct from that of legal advisers or specialist counsellors. For all the measures we have suggested which are already in hand, RCNI stresses that enough resources, including judges, must be provided if it is to succeed as it should. These resources should include access to appropriate training which challenges, head-on, the many pervasive rape myths on which much defence cross-examination is still based, in part, by pointing out that as they are not based on fact but on prejudice and misogyny, they are irrelevant to the issues in the case. However, RCNI also recognises that rape myths need to be identified and rooted out through education and awareness-raising initiatives.

I am happy to do my best to answer any questions on this opening statement and on the general issue of victims’ testimony. I thank the members for listening.