Mr. Dara Hayes:

I will make the opening address on behalf of the Bar of Ireland. We thank the Chairman and the members of the committee for their invitation to us to participate in this public session of the Oireachtas Joint Committee on Justice. Ms Fiona Murphy, SC, who accompanies me on behalf of the Bar, is a member of the Inner Bar who regularly acts, both for the prosecution and the defence, in rape and sexual offence cases and cases involving vulnerable witnesses. I am a member of the Bar Council and I chair its Criminal and State Bar Committee. I also am a barrister practising in criminal law.

Rape and sexual assault are very serious offences. Rape offences are in the very small category of criminal offences exclusively tried in the Central Criminal Court. There are, however, persistent issues with the under-reporting of sexual offences and with prosecution and conviction rates lower than those for other serious offences. It is important that all areas of criminal law are kept under review to ensure that crimes can be effectively detected and punished.

It is important that the area of rape and sexual assault offences is considered in the context of steps that might be taken to improve both the rate of detection and successful prosecution. It is equally important to ensure that any proposed remedies do not infringe upon the constitutional protections to which accused persons are entitled.

Various special measures are available to assist victims and vulnerable witnesses in the giving of evidence and in their interactions with the criminal justice system. These include measures such as anonymity, the exclusion of the public from the courtroom and the giving of evidence over video link rather than in person. The use of intermediaries to assist child witnesses has increased in recent years, although their use is made more difficult by there being no registered intermediaries within the State. Other measures include the provision of a screen to shield the witness from the accused and a restriction, without the court’s permission, on questioning a witness about previous sexual experience. These legislative protections culminate in the protections against secondary and repeat victimisation contained in the Criminal Justice (Victims of Crime) Act 2017.

When the issue of being questioned about previous sexual experience arises in a rape case, a victim is entitled to separate legal representation but there is, as yet, no similar entitlement in sexual assault cases. That anomaly should be remedied.

The O’Malley report, published last summer, contains many important recommendations that, if implemented, will assist victims and vulnerable witnesses as they navigate their way through the criminal justice system, from the time of their first engagement with gardaí through to the conclusion of the trial process. The Bar Council welcomed the report on its publication. It made a submission about the O’Malley report last September to the Department of Justice and has been working to develop a training programme, as recommended by the O’Malley group, that will enhance the Bar’s existing continuing professional development and advanced advocacy courses.

It is important to ensure that such special measures as are necessary and appropriate are available to assist witnesses to give their best evidence. It is also important to ensure that the criminal justice system is sufficiently resourced to protect against delays. There are delays in the court system caused by too great a backlog of cases, which now extends to 2023. Delay can also be caused by there being no court available on the day on which cases are listed for trial. This can cause cases to be adjourned for days or weeks and, in some cases, for many months. This would be significantly ameliorated by greater judicial and court resources. Delays can also be caused by issues with disclosure. Disclosure in criminal trials, particularly with regard to sexual offences, requires a system that is better resourced.

The impact of delay can be significant. First, the closer in time that any trial is to the events giving rise to the charges, the fresher in memory the testimony will be. Second, there is a psychological impact on victims and witnesses as they ready themselves for trial. The longer the process, the longer this burden has to be carried. There is also an impact on victims and witnesses where there is uncertainty over when a trial might commence. Some of this uncertainty will be alleviated by the introduction of preliminary hearings, which the Bar Council would welcome. Legislation to allow such hearings is currently before the Oireachtas.

In addition to the impact that the process can have on victims, in our submission we discuss the impact there can be on practitioners and the dangers of vicarious trauma. While there has been some limited study of the issue in this country, international studies suggest that it can be a significant risk for those frequently undertaking this kind of work. All of these issues are discussed in greater detail in the submission previously furnished to the committee and we are happy to assist the committee members as best we can with any questions they might have. I am grateful for the opportunity to participate.