David Stanton (Cork East, Fine Gael)
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Apologies have been received from Senator Tony Mulcahy. The purpose of the meeting is to have a discussion with a number of those who made a written submission on the heads of the criminal justice (community sanctions) Bill. On behalf of the joint committee, I welcome from Facing Forward, Ms Nadette Foley, advocacy officer, and Mr. Niall Counihan, vice-chairperson; from the Law Society of Ireland, Ms Shalom Binchy, chairperson of the criminal law committee, and Mr. Shane McCarthy, a member of the criminal law committee; from the Restorative Practice Strategic Forum, Ms Catherine Ashe, steering committee member, and Ms Claire Casey, quality assurance sub-committee member; and from the Rape Crisis Network Ireland, Ms Caroline Counihan, legal director. The format of the meeting is that witnesses will be asked to make an opening statement of approximately five minutes, after which we will have a question and answer session with members.
I remind members, witnesses and observers in the Visitors Gallery that all mobile telephones must be switched off or switched to aeroplane, safe or flight mode, depending on the device. Unfortunately, switching to silent mode will not be sufficient as a level of interference will maintained that impacts negatively on the broadcasting of proceedings. If a witness's telephone rings while he or she is making an interesting comment, it will not be picked up by the broadcast unit. If, in the course of proceedings, interference takes place, I will ask everyone to switch off their telephones completely.
I draw attention to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by it to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against a person, persons or an entity by name or in such a way as to make him, her or it identifiable. I remind members that under the salient rules of the Chair, they should not comment on, criticise or make charges against a person outside the House or an official by name in such a way as to make him, her or it identifiable. I invite Ms Foley to make her presentation.

Ms Nadette Foley:

This submission has been prepared on behalf of Facing Forward by Barbara Walshe, Niall Counihan and me. Facing Forward was established in 2005 to support the introduction of restorative approaches based on best practice that have emerged in other countries. We very much welcome the heads of the criminal justice (community sanctions) Bill for a number of reasons. First, it is an important step in fulfilling the recommendation of the National Commission on Restorative Justice to place restorative approaches on a statutory footing. Second, it takes into account the needs and interests of the victim and offender, places them on a statutory basis and requires the consent of the victim for the payment of reparation and-or a restorative intervention with the offender.

Facing Forward’s approach to restorative justice is based on three questions. Retributive justice asks what law was broken, who broke it and how do we punish those who broke it. Restorative justice asks what harm was done and to whom, what needs have arisen based on this harm and whose obligation is it to meet these needs. Internationally, where restorative practices are embedded within criminal justice systems, they are only one part of a wider restorative approach in communities, schools and throughout society. Facing Forward recognises the ripple effect of crime at all levels of the community and wants to encourage and support the adoption of a more restorative approach generally.

The Restorative Justice Council in the United Kingdom has a best practice document that sets out a number of key principles. These are that the primary participants in any restorative process are the individual who has been harmed and the person responsible for the harm. In addition, there should be some level of agreement about the essential facts of the incident and an acceptance of responsibility by the person who caused the harm.

I now propose to address the heads of the Bill. Facing Forward welcomes the provision in head 8 for a "limited and specific restorative justice approach in relation to District Court criminal proceedings for minor offences".

On section (4) of head 9, the explanatory note reads "reparation means financial reparation, any other form of reparation, or both". However, the examples provided in the head are purely financial. Facing Forward urges that the possibility of encouraging victims and offenders to consider reparation in its widest sense be incorporated more fully in the final version of the Bill to respect the different interests and needs of individual victims in the spirit of the European Union victims' directive.

The heads do not specify the precise mechanism by which the victim's consent is to be sought. Facing Forward recognises that certain victims may have suffered considerable trauma and harm and have safety concerns. For this reason, their overall needs beyond the consent issue must be taken into account and responded to appropriately. To comply with the EU victims' directive, when a garda or other professional contacts a victim to ascertain whether or not he or she consents to a reparation order being made, the garda or professional may also need to assess the victim's additional needs and refer him or her to victim support agencies.

Facing Forward ask that the process to be outlined in the Bill of seeking the victim's consent specify offering information to the victim on wider restorative possibilities, within the limits of the context of summary offences. The restorative element could be strengthened by giving a victim time to consider not only if he or she wants reparation but also what reparation means to him or her. For some victims, this may simply be the cost of damage done or medical expenses incurred as a result of the offence, while for others additional possibilities may arise.

Wider communication with the victim could allow victims to explore their interest in communication of any sort, indirect or direct, with the offender. Such communication would need to be carried out promptly as the purpose of this mechanism is to enable offenders to put the summary offence behind them. Would it be appropriate for victims who consent to reparation to be given the option of attending the summary hearing in the District Court to hear the offender accepting responsibility for the offence and the harm caused and confirmation of the reparation arrangement?

Head 10 refers to the "need to have due regard to the interests of any victim of the Offence". This relates to the EU victims' directive which recognises the need for the victim to play "a key role in criminal proceedings". Facing Forward would like the Bill to include reference to the needs of "victims with specific protection needs", as obligated by the directive. This category includes all victims under 18 years, victims of sexual crime and victims of hate crime. The directive also encourages states to introduce codes of conduct or guidelines for professionals who are in contact with victims.

Facing Forward asks the joint committee to consider in detail a number of issues, namely, the "specific protection needs" of certain victims and how these will be met within the Bill, for example, considerations around language, age, gender, literacy, culture, ethnicity, mental health or sexual orientation and the specific training needs required to address these considerations; the issue of giving victims information on further restorative possibilities for communication between them and the offender, for example, a range of options which could include a facilitated meeting between the victim and the offender if it was requested; the possibility of informing victims of the option to be present at a District Court hearing where the offender accepts responsibility for the harm. In addition, direct input by victims into the nature and extent of the reparation process and-or the potential to engage in a restorative session with the offender if required should be considered; and the need to conduct public awareness work to ensure widespread understanding of the benefits to victims, offenders and society of introducing restorative justice approaches in the criminal justice system.

I thank members for the opportunity to present to the meeting. We will be pleased to answer any questions they may have.

David Stanton (Cork East, Fine Gael)
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I thank Ms Foley for her presentation, which was concise and to the point. I invite Ms Binchy to make her presentation.

Ms Shalom Binchy:

On behalf of the Law Society of Ireland, I thank the joint committee for inviting my colleague, Mr. Shane McCarthy, and me to attend today. Mr. McCarthy and I are members of the criminal law committee of the Law Society and Mr. McCarthy is a nominated member of its council.

The criminal justice (community sanctions) Bill constitutes a radical overhaul of the manner in which the sentencing of offenders is dealt with before the courts, with particular reference to minor matters or matters where judges believe alternatives to convictions should be considered. The most significant changes proposed under the new scheme are that the Probation of Offenders Act 1907 will be repealed and the court poor box will be replaced with a reparation fund. The legislation will, to some extent, implement some recommendations of the Law Reform Commission's report of 2005.

Mr. McCarthy will speak about restorative justice, with a focus on the community sanctions Bill, the need for adequate resourcing, the potential restriction of the range of options open to judges and future Garda vetting of community sanctions.

Mr. Shane McCarthy:

The Law Society of Ireland made a submission to the committee on restorative justice alongside its submission on the community sanctions Bill. In this submission, we emphasised the importance of cross-agency and multidisciplinary co-operation, which are vital to ensure the successful roll-out of restorative justice.

While the Law Society welcomes debate as to restorative justice initiatives, we caution against the introduction of a parallel justice system to the existing courts system. Such initiatives might interfere with the rights of people who are suspected of criminal activity, albeit of a minor nature. Any referral to a restorative justice scheme should begin and end in the appropriate court where the accused would have legal advice and representation.

In the context of the criminal justice (community sanctions) Bill, many of our recommendations as regards restorative justice initiatives generally may be of interest to committee members. We recommend that the restorative justice initiatives should be based on an analysis of the impact of any such changes to criminal procedure in Ireland and the avoidance of any potential weakening of the constitutional rights of the accused. They should preserve the rights of accused people to be fully legally advised prior to participating in any such scheme. They should be designed on the basis of evidence-based research and adequate resourcing. They need to be supported by an adequate information programme established to ensure that there is adequate knowledge among all criminal justice personnel as to the appropriateness and suitability of restorative justice options in particular circumstances.

Research has shown that 75% of solicitors are unaware of the main principles of restorative justice. The successful expansion of the restorative justice schemes in Nenagh followed an extensive awareness programme among the public, solicitors, gardaí and other stakeholders. This education scheme is fully supported by the Law Society of Ireland which provides training to lawyers and trainee lawyers as appropriate.

The availability of adequate resources will be vital. Studies in Northern Ireland have indicated that each case referred to a restorative justice conference takes approximately 26 hours of staff time. In cases where it is necessary to obtain the victim's consent, it is the society's view that the victim's opinion should always be considered but there should not be a veto in cases where the judge deems restorative justice an appropriate mechanism. In many cases victims will not want to be involved despite the benefits of restorative justice schemes. For example, 89% of victims who have got involved in the past have confirmed that the apologies they received were sincerely offered. However, studies in England have shown that as few as 16% of victims want to participate in conferences there, with the comparative figures for Northern Ireland being 20% and Ireland approximately 45%. Of those who refused to participate, more than half gave the reason that they simply did not wish to do so. Similarly in the case of so-called victimless crimes where there is no victim to consent to the process, the society believes that restorative justice should not be automatically dismissed as an option for consideration.

The general scheme may put an end to the practice of courts seeking the assistance of the probation services for persons in circumstances where no formal conviction has been made. In such circumstances the individual concerned may benefit from intervention by the probation services, for example, in respect of addiction issues or training and employment assistance. There are instances where probation officers, after a period of informal supervision, may make recommendations that people should not be formally convicted. We recommend that the general scheme should not limit or restrict the range of options available to the courts. The Judiciary should be allowed to order the involvement of the probation services in any circumstances where it believes their involvement would be beneficial.

The treatment of discharge or binding-over orders made under the general scheme for the purposes of future Garda vetting is another consideration. The general scheme provides no direction or clarity on the manner in which it is intended to record discharge and binding-over orders made for the purposes of Garda vetting. Issues arise as to whether a notice of the making of either of these orders, which do not constitute a conviction, will be forwarded to the Garda Síochána for recording.

It is important to note that the Garda vetting unit does not currently operate pursuant to any specific statutory power. While the National Vetting Bureau (Children and Vulnerable Persons) Act 2012 may resolve some of the issues about which the society is concerned, this Act has not yet commenced. Accordingly, the society is very concerned that the current non-statutory procedure may interfere with the privacy rights of individuals, in particular those pursuant to Article 8 of the European Convention on Human Rights. The society believes that the general scheme must be considered in the context of the manner in which orders made under the general scheme, where there is no conviction, will be treated for the purposes of Garda vetting both under the current non-statutory procedure for Garda vetting and the National Vetting Bureau (Children and Vulnerable Persons) Act 2012.

Ms Shalom Binchy:

We feel there is potential confusion with the use of the term "binding-over orders" in heads 8 and 10. The courts currently have the power to bind people over to the peace even in circumstances where they are not charged with a criminal offence. The use of the term "binding-over orders" may result in confusion between the two different types of orders which will be available. The Law Reform Commission's 2005 report suggested the use of terms such as "full dismissal" or "conditional dismissal". It is possible that the inherent jurisdiction of the courts to dismiss a case on its merits may be diluted should the approach proposed by the general scheme be adopted. We recommend the use of the terms "full discharge order" and "conditional discharge order" instead of the term "discharge orders" and "binding-over orders" to avoid confusion.

The maintenance of the privacy and confidentiality of recipients of probation services is addressed at head 38. The general scheme proposes changes to how the Probation Service operates. Under the general scheme of the Bill the Minister may direct a designated person to investigate a complaint regarding the treatment of a person being dealt with by that service. There does not appear to be a requirement that such investigations be made pursuant to a complaint being made by the recipient of the service.

Often persons who are under the care of the Probation Service disclose certain highly confidential and sensitive matters personal to them which may be of interest to other organs of the State. The procedure whereby the Minister can direct investigation by a designated person could result in the State coming into possession of highly sensitive and confidential information. We recommend that the procedure for the investigation of complaints be reviewed to consider the best approach to maintain confidentiality of recipients of probation services.

The use of moneys paid into the reparation fund, and the need to maintain the spirit of the poor box system and fund anti-recidivism efforts in communities are dealt with at head 30. The general scheme proposes that moneys currently paid towards general community needs and charitable purposes through the poor box system be redirected exclusively to victim support and the funding of the Criminal Injuries Compensation Tribunal. Payments for compensation, reparation and assistance for the victims of crime are provided for, and the fund may not be used for any other purpose. Local charities and organisations benefit from the poor box and they are likely to be affected by the proposed redirection of funds. This redirection will not assist anti-recidivism efforts in communities as locally based front-line organisations are unlikely to receive supports.

In 2005, the Law Reform Commission endorsed the view that the fund "should be used to assist programmes aimed at preventing offending behaviour since these would be of benefit to the offender and the victim in this specific case and to assist potential offenders and potential victims in society." We recommend that the application of moneys from the reparation fund be allocated to community anti-recidivism initiatives in line with Law Reform Commission proposals.

David Stanton (Cork East, Fine Gael)
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I must stop Ms Binchy there because her time is well and truly up.

I call Ms Ashe of the Restorative Practice Strategic Forum.

Ms Catherine Ashe:

My colleague, Ms Claire Casey, and I represent the Restorative Practice Strategic Forum. The forum promotes and supports the use of a wide range of restorative approaches spanning all sectors of the community. It is grateful to the committee for the opportunity to comment on the heads of the Bill and it restricts its comments to specific aspects of heads 8 and 9, referring to victims’ interests and restorative justice.

The forum makes comments in respect of five key aspects of the provisions in heads 8 and 9. It welcomes the inclusion in the heads of the Bill of provisions relating to restorative justice. It recognises that the stated intention is to provide for a limited and specific restorative justice approach in District Court criminal proceedings for minor offences. It also recognises that the focus of the Bill is on community sanctions, not restorative justice.

The forum would respectfully suggest that consideration be given to broadening the scope of the restorative justice provisions to include so-called “victimless” crimes or offences where a corporate victim is involved or cases where the victim does not wish to receive reparation or engage otherwise with the offender. In such cases, reparation could be paid to the court reparation fund for possible dispensing to other victims or for the benefit of communities affected by crime.

Of critical importance in the view of the forum is that it is not necessary or desirable that a willing, remorseful and otherwise suitable offender should be denied an opportunity to benefit from a discharge or binding over order by making reparation. We welcome the inclusion of non-financial forms of reparation in the definition of reparation and the possibility to adjourn proceedings to ensure sufficient time to make reparation. We also welcome the possibility of offenders benefiting from discharge and binding-over orders, notwithstanding that they do not have the means to make reparation. It is also our view that the payment of reparation should take place in a restorative context. This would include other restorative actions by the offender, including potentially a restorative dialogue with the victim, and supports for offenders to avoid further offending. We welcome the statutory underpinning of reparation, although we see court-based reparation as a very limited form of restorative justice and recognise that reparation is already a possibility, and a reality in the majority of cases, under other restorative justice options, such as community-offender reparation panels and victim-offender mediation.

Ms Caroline Counihan:

The Rape Crisis Network Ireland, RCNI, broadly welcomes the forthcoming criminal justice (community sanctions) Bill 2014, as set out in the general scheme, because we welcome the inclusion of victims’ interests as an important part of the sentencing process, and as an important way of ensuring the best possible risk assessment and management of sex offenders. In particular, we welcome the provisions which implement our own earlier recommendations about compensation and pre-sentence assessment reports.

I will focus on certain heads of the Bill. In head 44, compensation, we welcome very much the deletion of the words “instead of” from subsection (1) of the original Section 6 of the Criminal Justice Act 1993, as we have already advocated for this, and it was recommended by the legal issues sub-committee, LISC, of the National Steering Committee on Violence against Women. It will no longer be possible to make a compensation order instead of a sentence. This is entirely appropriate. We recommend further that if any judge is considering a compensation order, she or he should be obliged to consult the victim of the crime first. Our experience is that some victims of sexual violence are not willing to accept any compensation from an offender, regardless of the circumstances. If the judge found that the victim was indeed unwilling to accept such compensation, he or she should be able to order that the same amount be paid by the offender to the reparation fund.

With regard to assistance for the victims of crime, we have nothing but praise for the existing Commission for the Support of Victims of Crime funding structure, which is simple and well-administered, and our members have benefited greatly from the funding for court and Garda accompaniment. A request for help can only be funded by the commission if it relates in our case to accompaniment services applied for and approved in advance. The structure is not very flexible. We recommend that, however it is administered, the reparation fund structures should have the capacity to be flexible to victims’ needs as they arise, as far as possible. The application process to the reparation fund should be well publicised by the State, simple and easy to understand, easy to administer and account for, and the portion allocated to victim assistance should increase the overall amount of funding available to victims of crime, not replace existing sources of funding. With regard to victim compensation and reparation the existing Criminal Injuries Compensation Tribunal should have its rules replaced to include all those categories of victim who may now find themselves actually or potentially excluded from compensation.

Under head 16, probation assessment reports, we recommend that with regard to the content of such reports, each one should include a detailed assessment of the risk of future re-offending and make proposals to address any such risk, where appropriate. If anyone convicted of a sex offence does not co-operate with the preparation of a probation assessment report, that fact should be brought to the attention of the sentencing judge, who should have the power to impose sanctions if she or he is satisfied there is no reasonable excuse for the failure to co-operate. As part-suspended sentences provide an important mechanism through which the court may impose conditions aimed at reducing the risk of re-offending after release and activate the full sentence if these conditions are breached, we submit that part-suspended sentences should be included explicitly in the wording of head 16(2)(c). Where the sentencing judge considers it may be appropriate to impose a part-suspended sentence on a sex offender, we submit that she or he should have regard to some of the same matters which must be considered by a sentencing judge who has to decide whether to impose a post-release supervision order.

With regard to head 17, other reports that may be requested, we recommend that in the case of sex offenders at least, any report prepared under this head should refer explicitly to the risk of re-offending and the report’s author should make any recommendations which seem appropriate to address this risk.

Under heads 20 and 21, access to reports and the right to tender evidence on reports respectively, we recommend that head 20 be reworded slightly so that victims are named as a class of people entitled to see copies of reports under that part, unless there are exceptional circumstances in a particular case which mean that the judge should not allow this. Head 21 is broadly welcomed.

With regard to head 8, discharge orders and binding over orders relating to summary offences, we recommend that the wording about the interests of any victim be changed from “may have regard” to “shall have regard”, so that any judge considering a discharge order or binding over order is obliged to consider the needs of any victim of the offence.

In respect of head 9, restorative justice criteria for the purposes of head 8(3)(f) we recommend that the wording of head 8 on restorative justice criteria be changed from “may have regard to” to “shall have regard to”, to put it beyond doubt that where they are applicable, the restorative justice criteria must be included in any consideration of a disposal without conviction.

With regard to head 34, role of probation service in relation to court proceedings, we recommend that the proposal to allow Probation Service officers to prepare a victim impact statement be scrapped. In making this submission, no criticism of the great and necessary work of Probation Service officers is intended.

We thank all members of the committee most sincerely for this opportunity to make submissions on the forthcoming criminal justice (community sanctions) Bill 2014, and for the invitation to attend this meeting today. If any members of the committee would like further information on any point, they should not hesitate to contact us.

Martin Conway (Fine Gael)
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I thank the four parties for their comprehensive submissions. The Minister is referring much more legislation to the committee for this type of engagement and consultation.

Will Ms Counihan explain why the RCNI would not want the Probation Service to make victim impact reports? I know there is no criticism intended of the service.

Ms Caroline Counihan:

Absolutely not.

Martin Conway (Fine Gael)
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Why would the RCNI not want that to happen?

Ms Caroline Counihan:

I consulted various managers and counsellors in our network and the response was, without criticism of the Probation Service, that our clients associate probation officers with the accused and the interests of the accused.

They did not feel it would be easy for those victims to be open, frank and part with any meaningful information. When dealing with the impacts of sexual violence, it takes time for a victim to build up a relationship where she can be full, frank, open and be herself in getting to the depths of the impact of the crime. As far as sexual violence victims are concerned, that suggestion does not seem to be workable.

Martin Conway (Fine Gael)
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That is perfectly reasonable. I thank the Law Society for the comprehensive submission. Will the witnesses elaborate somewhat on the concerns regarding the proceeds of the court poor box? What is proposed is certainly different and the issue is not left to the discretion of a judge. The money would be targeted appropriately.

Ms Shalom Binchy:

The poor box system works very well and although it is not on a statutory footing, we are not keen to see changes made to that system because it has been extremely effective, particularly cost-effective. Currently, funds are usually sent to a charity at the nomination of the judge and administered in a very cost-effective way. They also go to mainly local organisations, very often those which deal with sources of criminal activity. For example, the money may go to local drug treatment organisations and bodies which may not receive much funding from other sources. We are keen to keep that funding available for those types of organisations. Although we welcome the idea that victims of crime could also receive some payments through the court poor box system, we would not like to see a system where local organisations - particularly those involved with measures to prevent offending - would not receive funds from the court box. We are also concerned that this proposal could add another layer of bureaucracy and it could be much more costly than the existing system.

Martin Conway (Fine Gael)
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Will the witnesses elaborate on the concerns about privacy rights?

Ms Shalom Binchy:

This is uncharted territory as the head proposes a system where a complaint can be made relating to probation services. The complaint would be investigated as a necessary consequence and information given by a person who has dealt with a probation officer would be available to a third party. One can imagine how the information could be extremely sensitive, and we foresee instances where somebody who gives information to a probation officer may disclose a very serious crime of a sensitive nature. We are concerned that such issues may come to the domain of others who may not have constraints similar to the probation services or a solicitor on sharing information. The committee should consider the matter and try to include measures to combat any disclosure of any information of sensitive or confidential nature.

Martin Conway (Fine Gael)
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The witnesses are aware that the committee is doing some work on restorative justice and will produce a report on that. I hope that by September or October we will see movement on it. How will the principles of restorative justice be improved in this Bill as advocated by Facing Forward?

Mr. Niall Counihan:

With regard to restorative justice for summary offences, there is an opening-----

David Stanton (Cork East, Fine Gael)
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Will the witness, for the benefit of those listening, explain summary offences?

Mr. Niall Counihan:

In our view they are minor offences which do not require any lengthy court appearance. I am open to correction on that. We advocate a restorative method of dealing with the offender and victim in so far as the victim could attend court and have an input on the reparation involved in the judgment. Where an offender agrees to take responsibility, rather than reparation or community work, he or she could agree to some sessions of victim-offender mediation with the victim.

Martin Conway (Fine Gael)
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I was going to discuss the EU victims directive but the witness has pre-empted the next question in his comments. I hope we will see more regard for restorative practices and justice in more legislation. Some delegations have made submissions for the study this committee will complete on restorative justice and I hope we will have an opportunity in the autumn to further engage in advancing this principle. The pilot projects in Nenagh and south Dublin are working well. The Minister has committed, through Private Members' motions in the Seanad, to extending those, and the announcement of a community court in Dublin is to be welcomed. I thank the witnesses for their engagement.

Finian McGrath (Dublin North Central, Independent)
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I welcome and commend all the groups for their valuable submissions and I thank them for their assistance to this committee. We all share the same objective, which is to do something for the broader society and community, repair harm and restore relationships where there are criminal issues. In the submission Facing Forward indicated that for some victims, restorative justice may amount to the cost of damage or medical expenses arising from an offence but for others there may be additional possibilities. Will the witnesses clarify that?

Ms Nadette Foley:

From other jurisdictions we have seen videos of restorative processes, particularly where there is direct or indirect communication between a victim and offender. My colleague referred to this, and if reparation is envisaged - possibly involving community service or another activity - a victim can relay his or her wish for the type of action involved. The party may be involved in or support a project and wish the offender to contribute directly to it through time or money. The opposite may be the case, and a victim may have safety concerns and not want to walk down a street where there is a possibility of the offender painting the wall of a local youth project, for example. The victim may prefer the community service to be done in a different location.

That is why we say there should be possibilities. We do not want to impose restrictions. The beauty of restorative work is that the creativity of both the offender and the victim can come into play and that they can come up with ideas none of us would even dream of. They are the kind of things we have heard from other jurisdictions.

Finian McGrath (Dublin North Central, Independent)
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In her submission Ms Foley referred to conduct guidelines for professionals in contact with victims. I meet many victims of crime who are on the fringes of criminal gangs who are afraid to report their activities. That is something on which we have touched before in the committee. Is there any advice in such situations? A regular criticism from people in marginalised communities is that some of the professionals do not listen sufficiently or are not able to deal with the issues they want to deal with.

Ms Nadette Foley:

My colleague, Mr. Counihan, might be better able to answer that question.

Finian McGrath (Dublin North Central, Independent)
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That is a regular complaint I receive.

Mr. Niall Counihan:

We come across a lot of drug gang intimidation and it is a very hard nut to crack. In some cases the community garda can help but in others an inspector is required. The safety of the person making the complaint is the key. We operate strictly on the basis of restorative initiatives. In the case of offenders engaged in intimidation, unless a lot of corrective work has been done with them, we would not consider them to be candidates for a restorative justice programme with such victims as described by the Deputy. They could either be on the fringes of gangs or have gone down the road of purchasing certain illicit products and not been able to pay for them. Serious intimidation could be involved. I would not envisage a restorative process working in such a situation in the initial stages until such time as work has been done with the offender.

Finian McGrath (Dublin North Central, Independent)
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The submissions of Ms Ashe and Ms Casey refer to broadening the scope of restorative justice provisions to include offences where a corporate victim is involved. Will they, please, expand on that aspect of the submissions?

Ms Claire Casey:

On the question Deputy Finian McGrath asked about what helped people to report crime, we have found in running a restorative practice programme in Tallaght that where people hd received training in restorative practices – residents, as well as gardaí and agencies – when the evaluation was carried out, the people who had undergone the training and were using the skills said they were 30% more likely to report a crime. The evaluation involved self-reporting. Confidence was built in relationships with the Garda through the process. The aim is to broaden restorative justice provisions. The forum sincerely welcomes the intention to put the restorative justice process on a statutory footing. It is a step in the right direction in terms of adults having access to restorative justice processes in the criminal justice system. It is a first step. The recommendations tie in with everything that has been said by everyone present in making the processes more effective.

An example of a corporate victim would be where there is a break-in at a post office at night and nobody is hurt but the post office has been damaged – in that case An Post has been damaged. In such cases there is not strictly a victim for the Garda or the courts, but there is an impact on the community and a restorative justice option could be taken. I return to points made about the supports people need in terms of training, information or skills around approaches to restorative justice and it being done on an inter-agency basis.

Finian McGrath (Dublin North Central, Independent)
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I would appreciate the delegates keeping in touch with the committee because some of the submissions also cover other areas we might deal with in the future. My colleagues would be very interested in some of the points made such as those Ms Casey outlined in the case of Tallaght.

Mr. McCarthy referred in the presentation on behalf of the Law Society of Ireland to issues that might interfere with the rights of people suspected of criminal activity. He also referred to a potential weakening of the constitutional rights of the accused. Will he expand a little on his concerns about sections 8 and 9?

Mr. Shane McCarthy:

It is vital that an accused have the opportunity to engage with a legal adviser and take advice on whether to engage in a restorative justice procedure before deciding whether he or she should become involved. The point I have made is that all restorative justice procedures should be referred from a court to a restorative justice scheme and that in the court the accused should have the opportunity to discuss the issues involved with a solicitor and be able to take proper advice on the powers and remit of the restorative justice scheme to which he or she is potentially being referred. Once he or she is aware of this, his or her involvement with the restorative justice scheme would be on the basis of informed consent. That is vital from so many points of view, including the subsequent success of the restorative justice scheme.

Finian McGrath (Dublin North Central, Independent)
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I thank Mr. McCarthy.

Katherine Zappone (Independent)
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I have a couple of questions. I thank the delegates for their presentations. I have one question for Facing Forward about its concluding observations. Reference is made on page 3 to the specific protection needs of certain victims and the importance of the specific training required to meet these needs. Will Ms Foley please expand a little more on this? Is she also arguing that this is something that should be incorporated into the Bill?

Ms Nadette Foley:

The EU victims’ directive mentions three categories of victims with specific protection needs – those under 18 years, victims of sexual crime and victims of hate crime. In regard to these categories there is an obligation for new legislation to comply with the victims’ directive. That part of it is specific. On page 3 we have a wider formulation covering some of the categories in equality legislation. Over and above the obligations of the victims’ directive, there are sub-categories of victims. Victims are all individuals. Given the specific sub-categories, it is important for the Garda, the Probation Service, court staff and those involved in reparation or community service processes to be fully informed and trained to deal with the specific sub-categories of victims.

Katherine Zappone (Independent)
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Presumably, that call comes from the experiences of the membership of the group. Does Ms Foley have any documentation in that regard?

Ms Nadette Foley:

Several of us, me included, have worked with migrants for many years and are particularly conscious of the context of hate crime, including race hate crime.

As my colleague, Mr. Counihan, has said, there are categories of victims who may have perpetrated offences themselves. We are very conscious that this is not black and white.

Katherine Zappone (Independent)
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Yes.

Ms Nadette Foley:

There are people who are hidden victims.

Katherine Zappone (Independent)
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I thank Ms Foley. I have a question for the representatives of the Restorative Practice Strategic Forum. They have recommended that the payment of reparation should take place in a restorative context and should include other restorative actions by the offender. Could they say a little more about that, perhaps on the basis of the experience they have gleaned from their work? Is it possible that widening this practice in the way the forum has suggested could have some disadvantages?

Ms Claire Casey:

I can give some other examples of the things that have been talked about - the kinds of supports that have been put in place under the pilot projects and the alternatives to financial reparation. People who do not have the money to make repayments can take on community service or do voluntary work instead. The disadvantages of this approach are the same as the disadvantages of anything. It involves making a commitment to having a longer-term relationship with an offender than one would have if one simply sent him or her to prison. It is more labour-intensive in the community, as has been mentioned. The cost-effectiveness of investing now might not be seen until 15 years down the road. It is the same argument - prevention, in the form of early intervention, is better than cure. The disadvantages relate to the challenges associated with taking an interagency approach to finding a new way to work with people. It might take a little while for it to bed down.

Katherine Zappone (Independent)
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That is very good. I thank Ms Casey.

Ms Catherine Ashe:

I would like to add to that. I have 12 years, experience of working with young offenders, some of whom had served sentences and some of whom were at high risk of going into prison. I am aware that the range of other proactive restorative options will be explored further. Deputy Finian McGrath mentioned this earlier. It is important to note that restorative practices cannot exist in a vacuum in the criminal justice system. Certain reintegrative processes outside the criminal justice system need to be acknowledged because they are of great value by virtue of their proactive nature and because of the manner in which they facilitate reintegration into society.

Katherine Zappone (Independent)
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The Rape Crisis Network has strongly recommended that the Probation Service should not prepare victim impact statements. Is it offering an alternative in that regard?

Ms Caroline Counihan:

The role of supporter in preparing victim impact statements or, depending on the level of need, drafting them substantially, often falls to rape crisis people who have been supporting the victim. They are trained to do that with the support of the commission and of victims of crime. We have made some supportive material available for workers and victims. If a victim has a very good relationship with the investigating garda in his or her case, that garda might take on the role of preparing the victim statement, or at least providing a little assistance. It depends. As time goes by, I am noticing in my job that more and more victims seem to be undertaking to do it themselves substantially. We tell them that they really need to crosscheck it to make sure it is all right to go forward. As the members of the committee will be aware, there are certain matters that should not be raised in a victim impact statement for legal reasons, etc. Our philosophy is that it should be left to the victim. I am relaying to the committee the concerns of people in our network, who have said with the greatest of respect to the Probation Service that it is indelibly identified with the accused in the minds of victims. The service often supervises accused persons and prepares reports on them. It is identified by victims as a service for "them" rather than for "us". It is a purely practical point.

Finian McGrath (Dublin North Central, Independent)
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I absolutely concur with what Ms Ashe had to say about the reintegration process. I would like to mention another bee that I have in my bonnet. We are dealing with the victims and the offenders today. I regularly whinge in here that we do not focus sufficiently on prevention in the broader crime debate. As the witnesses were speaking, I was reminded of the recent visit I made to a preschool in my constituency. Many of the 260 kids in the preschool, all of whom are under the age of four, come from dysfunctional and violent families. Some of them come from families that have suffered as a result of gangland warfare. The brilliant staff in the preschool are working really hard to try to save these children before they enter the justice system at the age of eight, nine, ten or 15. I have a bee in my bonnet about the need to do more at the early stages before people get involved in criminal activity.

David Stanton (Cork East, Fine Gael)
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I thank the Deputy for telling us about the bee in his bonnet. I would like to ask one or two questions now that everyone else seems to have concluded. Mr. McCarthy or Ms Binchy mentioned that 75% of solicitors are not aware of restorative justice measures and processes.

Mr. Shane McCarthy:

I referred to a small-scale survey of solicitors and other people working in the criminal justice area, as reported on in the Irish Probation Journal. It has been noted that when visiting judges come to the Nenagh area, where a restorative justice scheme is under way, they are not as aware of the rules applicable to the scheme as the judges who handle it day in, day out. Visiting judges are far less likely to refer a case to a restorative justice solution, as opposed to the standard solutions in the District Court. There is a lack of knowledge of restorative justice schemes right across the board, for example among solicitors, judges and other people practising in the area. One of the major things done as part of the roll-out of the extension of the scheme in Nenagh involved building awareness of the advantages of restorative justice schemes and creating an acceptance of such schemes among the community, which would not be aware of them. It was considered that such knowledge-building was a vital step in increasing the acceptability of restorative justice as an alternative justice mechanism.

David Stanton (Cork East, Fine Gael)
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That is amazing. When Ms Casey spoke about training earlier, she cited an example of where training occurred in a community and the confidence of victims or possible victims improved dramatically as a result. I think she said that the knowledge of people in general, rather than victims, improved. Their propensity to report crime increased as a result. Could she talk about the kind of training that is provided and how it works? Who does it? Where does it work? What is involved in it? What would Ms Casey like to see happening in order to expand or develop this further?

Ms Claire Casey:

I referred to the actual training we provide. I work for an organisation in Tallaght called the Childhood Development Initiative, which is one of the prevention and early intervention programme projects funded by Atlantic Philanthropies and the Department of Children and Youth Affairs. Over approximately four days, we deliver training in two areas - an introduction to restorative practices and an upskilling in restorative practices - to give people the skills to use a restorative approach to build relationships and resolve conflict easily. It is not restorative justice training.

David Stanton (Cork East, Fine Gael)
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Okay.

Ms Claire Casey:

It is linked to it in the training. We explain to people about restorative justice.

The training is about conflict and it is not about tackling crime which is a matter for the Garda Síochána because that is its job. This aspect is covered in the training. The training improves people's confidence about naming problems. The programme was independently evaluated by NUIG over its first two years and it has been running for four years. At that point 700 people had participated in the training programme and 35% of people surveyed reported themselves more confident and willing to report crime. This was an unexpected outcome. Tallaght is also a pilot project for restorative justice training for members of the Garda Síochána. Waterford and Tallaght were the two pilot projects and the reports on those projects will be published next year in 2015. It will be very interesting to see how they have fared. The aim was to forge better relationships between residents and gardaí.

David Stanton (Cork East, Fine Gael)
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How would Mr. McCarthy see the training area being resolved or developed?

Mr. Shane McCarthy:

An evaluation was carried out on the scheme in Nenagh where the throughput numbers in the scheme increased from approximately 20 a year up to in excess of 100 a year. It expanded geographically to include parts of County Offaly and other adjacent counties. The only way that this expansion was acceptable was by creating awareness of the benefits of the scheme and how it operated. That was done through the probation service meeting with gardaí, public representatives, members of the community and setting up local panels of people who were trained in the appropriate principles.

David Stanton (Cork East, Fine Gael)
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I ask Ms Counihan to expand on her reference to the victim surcharge system and on how it operates in the UK.

Ms Caroline Counihan:

In the UK a percentage surcharge is applied. It is particularly property crime but with regard to crime against the person there is a fixed amount depending on the kind of crime. A surcharge is levied on any financial penalty and it goes to the victims. It struck me on further reading that the scheme is overly complicated. What is proposed under this Bill is better because it is more flexible.

David Stanton (Cork East, Fine Gael)
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Witnesses are welcome to send us any further written information and comments. I thank the witnesses for their attendance and for their engagement with the committee on this interesting and very important topic. We will send a report to the Minister on this issue. We expect the Bill to be published at some stage when it will be debated in the Houses and on Committee Stage. The input of the witnesses is very welcome, and it is also very valuable and important. We are very grateful to them for sharing their time and expertise with us.