Oireachtas Joint and Select Committees
Wednesday, 1 March 2017
Joint Oireachtas Committee on Justice, Defence and Equality
Prisons, Penal Policy and Sentencing (Resumed): Victims' Rights Alliance
I thank Senator Colette Kelleher who has helped us, once again, to get the business of the committee under way. She is very welcome on the morning of what will prove to be an historic day, of which we are all very conscious, and once again I thank her. Apologies have been received from Senator Niall Ó Donnghaile.
I welcome Ms Maria McDonald of the Victims' Rights Alliance to discuss the issue of penal reform. On behalf of the committee, I thank Ms McDonald for her attendance this morning. I also acknowledge the presence of her colleague, Ms Fiona Murphy. I wish to remind everyone that the joint committee agreed, as part of its work programme for 2017, to look at the area of prisons and penal policy. We contracted the title of this element of our work programme to penal reform. This is the second external engagement and the third focused address on this issue by the committee. Ms McDonald will be invited to make an opening statement to the committee and this will be followed by a question and answer session with committee members.
Before I invite Ms McDonald to make her address, I must caution her in relation to privilege in the context of these and all Oireachtas committee proceedings. I draw attention to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, she is protected by absolute privilege in respect of her evidence to this committee. However, if she is directed by the committee to cease giving evidence on a particular matter and continues to so do, she is entitled thereafter only to qualified privilege in respect of her evidence. She is directed that only evidence connected with the subject matter of these proceedings is to be given and she is asked to respect the parliamentary practice to the effect that, where possible, she should not criticise nor make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable.
Without any further ado, I invite Ms McDonald to present her address.
Ms Maria McDonald:
I thank the committee for giving me the opportunity to speak today on behalf of the Victims' Rights Alliance, VRA. The VRA is an alliance of victim support and human rights organisations in Ireland, namely Advocates for Victims of Homicide, the CARI Foundation, the Dublin Rape Crisis Centre, the Gay and Lesbian Equality Network, the Immigrant Council of Ireland, Inclusion Ireland, the Irish Criminal Justice and Disability Network, the Irish Council for Civil Liberties, the Irish Road Victims' Association, the National Women's Council of Ireland, the Irish Tourist Assistance Service, One In Four, the Rape Crisis Network Ireland, Ruhama, Safe Ireland and Support After Homicide. The alliance was formed with one key goal, that is, to ensure that the EU victims directive is implemented in Ireland within the proposed timeframe, with all victims of crime in Ireland in mind.
Our members have different views on penal reform, sentencing and prisons. For that reason, this submission is limited to the rights afforded to victims under the victims directive and recognised rights provided to victims of crime in other common law jurisdictions. Given the short time available, it has not been possible to get all our members to sign off on this submission.
Member states of the EU, including Ireland, were required to transpose the victims directive into law by 16 November 2015, but no legislation has been enacted to date to transpose the directive in Ireland. The publication of the Criminal Justice (Victims of Crime) Bill 2016 on 29 December 2016 was the first major step in putting victims at the heart of the criminal justice system. As members know, that Bill is currently before the Dáil. The Bill is a comprehensive document which has had the benefit of significant consultation with key State and non-State agencies working with victims of crime, including victim support organisations. It broadly mirrors the content of the victims directive, although there are some glaring omissions.
The necessity to implement dedicated victims legislation is illustrated by the contents of the Guerin report, the Garda Inspectorate report from 2014, the VRA report from 2014 and the O'Higgins report of 2016. A survey by some VRA members indicated that 72% of victims surveyed said that they felt re-victimised by the criminal justice system. This should be compared with the figure of 49% of victims who indicated that they felt re-victimised by the accused. The risk of re-victimisation and intimidation should be reduced as much as possible and safeguards should be put in place to protect victims of crime during the sentencing and parole processes and on the release of the offender from prison.
The Criminal Justice (Victims of Crime) Bill, if implemented, will put victims of crime on a statutory footing in Irish law for the first time. There is currently no legal definition of a victim of crime in Irish law. Section 2 proposes to define a victim as a person who has suffered physical, mental or emotional harm or economic loss which has been directly caused by an offence. This mirrors the definition in the victims directive. Family members are deemed to be victims for the purposes of the Bill if the death of the victim was directly caused by a criminal offence. A family member will not be entitled to the rights under the Bill if he or she has been charged with, or is under investigation for, the death of the victim.
One of the major omissions within the Criminal Justice (Victims of Crime) Bill 2016 is the absence of restorative justice. There has been growing recognition that restorative justice should be explored to address the need of victims of crime for redress. It is a process that is being increasingly used by victims of crime in Ireland such as, for example, Le Chéile in Limerick. Article 2(1)(d) of the victims' directive defines restorative justice as meaning "any process whereby the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the criminal offence through the help of an impartial third party". Member states are not required to establish restorative justice services but where they exist, member states were required to have safeguards in place for their use.
Article 4(1)(j) of the victims' directive asserts that victims must be informed, on first contact with the Garda, of "the available restorative justice services". Article 12 of the directive outlines safeguards to protect "the victim from secondary and repeat victimisation, from intimidation and from retaliation". Restorative justice should only be used if it is in the interest of the victim to do so based on his or her free and informed consent. A victim can withdraw his or her consent at any time. Prior to agreeing to engage in restorative justice, a victim must be given complete and unbiased information. This should include information on the outcomes and the supervision of the process.
Article 12 of the victims' directive also provides for the safeguard that an offender must acknowledge the basic facts of the case, which is incredibly important. The agreement of the parties must be voluntary and it can be considered in criminal proceedings that follow, such as the sentence. If restorative justice is conducted in private then it is confidential and cannot be discussed without the consent of the parties, save where there is a prevailing public interest to do so. Victims that choose to engage in restorative justice should have the benefit of these measures in Irish legislation pursuant to the victims' directive.
Ireland has no statutory scheme for restorative justice. Notwithstanding this, judges have recommended its use to victims of crime in the court process. Sections 26 and 28 of the Children Act 2001 invite victims to be involved in a conference convened by a probation and welfare officer, which is a form of restorative justice. Restorative justice was included in the scheme of the Criminal Justice (Victims of Crime) Bill that was published in 2015. It was, therefore, a surprise that restorative justice was not included in the recently published Criminal Justice (Victims of Crime) Bill 2016. The failure to include restorative justice safeguards is an obvious omission of Ireland's obligations under the victims' directive. Infringement proceedings may be instigated by the European Commission should the Bill not be amended to include such a provision. The necessity of including restorative justice in legislation is illustrated by the fact that a court had suggested the use of restorative justice to a victim in circumstances that did not take account of the safeguards provided for in the victims' directive.
I am sure all members are familiar with the strategic review of penal policy of 2014. The review acknowledged that the victims' directive "promotes the appropriate use of restorative justice services which is in line with the existing delivery of such services in this State". Furthermore, without being provided with information on the available restorative justice measures, victims will be unable to access their rights thereunder. The victims' directive requires that victims be informed of the available restorative justice services. The Garda victim information leaflet, which was drafted in order to comply with the State's obligations, only makes reference to restorative justice services being available where the offender is under 18 years of age. There are other restorative justice services available to victims of crime who are adults. The Criminal Justice (Victims of Crime) Bill 2016 does not require the Garda to provide information on restorative justice. Again, this is a glaring omission in light of Ireland's obligations under Article 4 of the victims' directive. Failure to adequately provide information on restorative justice significantly dilutes a victim's rights under the directive. It illustrates the difference between providing rights on paper and accessing them in practice.
Victims have a right to information on an accused's remand and release from custody. Article 6(5) of the victims' directive provides that victims must be "offered the opportunity to be notified, without unnecessary delay, when the person remanded in custody, prosecuted or sentenced for criminal offences concerning them is released from or has escaped detention".Furthermore, victims should be informed of measures that have been implemented for their protection where an offender has been released or escaped from prison. Section 7 of the Criminal Justice (Victims of Crime) Bill provides that information should be provided to the victim on the offender's release or escape from custody.
Currently, upon request, victims can receive information from the Irish Prison Service about an offender's release from prison. However, once a victim opts in, he or she is provided with all information that the Irish Prison Service would deem relevant in the circumstances. Victims should be able to pick and choose what information they want to receive. For example, some victims are re-victimised every time they receive an update on an offender while other victims would like to know as much information as is available.
In Canada, the Victims Bill of Rights Act permits victims, upon request, to receive information from Correctional Service Canada, which is like our Probation Service, about an offender's progress towards meeting the objectives of a correctional plan and information on the correctional plan. Correctional Service Canada also gives victims access to a photograph of the offender prior to his or her release into the community. Victims can request access from the Parole Board of Canada to listen to an audio recording of a parole hearing if unable to attend in person. At present, victims of crime in Ireland are not entitled to a photograph of an offender nor are they able to attend or watch a parole hearing online. The Victims Rights Alliance, VRA, is cognisant that the rights of the accused must be balanced with the rights of an offender. However, at least where there is a risk of re-victimisation or intimidation, a victim should be offered the opportunity to have sight of a picture of an offender prior to his or her release from prison. Furthermore, should a victim wish to attend a parole hearing he or she should be given the opportunity to do so or given the opportunity to hear a playback of the parole hearing or both. In June 2016, Correctional Service of Canada and the Parole Board of Canada launched an online victims portal whereby victims of crime could receive and view appropriate information about the offender, view and manage preferences for receiving information and submit a victim statement to Correctional Service Canada and the Parole Board of Canada. In addition, they could request to observe a parole hearing, request to present a victim statement at a parole hearing and request a copy of the parole decision. It might be worth considering running a similar pilot programme in Ireland.
Like the Irish Penal Reform Trust, the VRA believes that the parole process is in need of reform. The independence of the parole board is essential to ensure that justice is adhered to, not only for the victim of crime but also for the offender. The author is aware of one instance where a parole board member referred to a victim who sought revenge on an offender. This example is mentioned to illustrate the issue of bias and the importance of an objective parole board. It is respectfully submitted that legislation relating to the make-up of a parole board should be cognisant of Article 1 of the victims' directive, such that "Member States shall ensure that victims are recognised and treated in a respectful, sensitive, tailored, professional and non-discriminatory manner, in all contacts with victim support or restorative justice services or a competent authority, operating within the context of criminal proceedings." The Irish Parole Board may be deemed to be a competent authority for the purpose of this legislation.
Article 25 of the victims' directive provides that "officials likely to come into contact with victims" should get both specialist and general training appropriate to their level of contact with the victims of crime so as to "enable them to deal with victims in an impartial, respectful and professional manner". Having due regard to the independence of the legal profession the victims' directive recommends that training be made available to "increase the awareness of judges and prosecutors of the needs of victims". The Irish Council for Civil Liberties, in conjunction with The Bar Council of Ireland and the Law Society of Ireland with financial support from the Justice Programme of the European Union, are developing a training programme for lawyers on the victims' directive.
The VRA is cognisant of the independence of the Judiciary. However, I draw the committee's attention to a Private Members' Bill in Canada, namely, an Act to amend the Judges Act and the Criminal Code (sexual assault), which was introduced in Canada last Thursday, 23 February. The Bill appears to have general support in Canada. In summary:
This enactment amends the Judges Act to restrict eligibility for judicial appointment to individuals who have completed comprehensive sexual assault education. It also requires the Canadian Judicial Council to report on continuing education seminars in matters related to sexual assault law. Furthermore, it amends the Criminal Code to require a court to provide written reasons in sexual assault decisions.
On Monday I spoke with Judge Hinkle and Anna Evans of the Massachusetts Trial Court, who developed and implemented training specific to domestic violence in the Massachusetts Trial Court. The training has been effective and well received by employees across Massachusetts who work within the courts. The Chief Justice of the Massachusetts Trial Court has made it compulsory for all judges to participate in the training programme, including court officers, facilitation offers and some lawyers, such as guardians ad litem. Training is essential to ensure that victims of crime get access to their rights under the victims' directive. Persons working with victims of crime within the sentence, restorative justice and parole process should receive appropriate training.
I thank the committee for giving the opportunity to speak here today. I hope that my presentation was not too lengthy. I hope that we will have an opportunity to speak more generally on the Criminal Justice (Victims of Crime) Bill 2016. I thank the members for their time.
I thank Ms McDonald for coming before the committee. Historically, victims were very much peripheral to if not ignored by our criminal justice system. I think everyone here welcomes the fact that in recent years victims have become more central to the criminal justice process. This will be more apparent this evening when the Dáil debates the Criminal Justice (Victims of Crime) Bill, which, in general, we support. I commend Ms McDonald. It is important that there are groups which take into account the interests of victims because interest groups have an impact in altering legislation.
One of the questions I wish to ask concerns the area of penal reform, which is an issue we are considering. It is not fair that people sometimes put penal reform groups on one side and victims' groups on the other. What are Ms McDonald's views on the effectiveness of prison and the extent to which it should be used as a punishment? She spoke about restorative justice. Can she give us examples of the type of restorative justice she thinks would be effective in meeting the demands of victims while, at the same time, rehabilitating the offender? Rehabilitation of the offender is one of the functions any legislation in this area must have. My third question concerns parole. I do not know whether Ms McDonald is aware of the Parole Bill. If she is, what are her general views on it? I ask her to deal with these three issues.
Ms Maria McDonald:
Regarding the effectiveness of prisons, I am in a difficulty in that, as I mentioned at the start, all our members would have different views on the use of prisons. For example, the Irish Council for Civil Liberties would have a very different view to Advocates for Victims of Homicide. I will speak about the matter in the context of fines, which I think were discussed with the Irish Penal Reform Trust, IPRT. Some members may be familiar with a Bill published by the former Minister, Mr. Alan Shatter, namely, the criminal justice (community sanctions) Bill. The Bill concerned fines and the amending of the manner by which they are carried out. Mr. Shatter indicated that he wished to set up a specific fund through which fines would be paid out to victim support services. I see it in this context: if one is looking not to put somebody in prison and fining them instead, cognisance should be taken of the victims' issues. If those moneys were then put into victim support services to facilitate counselling or support services for victims of crime, the Victims' Rights Alliance would see this as very beneficial. In addition, it may be a means whereby it would be more appropriate that the individual not then be in prison; rather, that he or she is contributing back to the community through the money he or she is affording to those circumstances.
Regarding the demand for restorative justice, victims and the benefit they are seeing in this respect, as the committee already knows, the Probation Service runs a programme for offenders. Victims have the option to benefit in that they are asked whether they want to participate in the programme. It is up to the individual victim. Much work and research is being carried out on victims of sexual abuse engaging within the restorative justice process. Some of our members would have very different views on this. For example, some of them think it would not be appropriate in particular circumstances, but it is very obvious that it is up to the individual victim whether to engage in the process. Some research indicates that some victims of sexual abuse, particularly within family circumstances, have found the programme beneficial. Again, it is up to the individual as to whether he or she engages with it. I can give the committee an example of a case in which it would be inappropriate to request a victim to engage with the restorative justice process. I refer to a case reported in 2014 in The Irish Timesin which a judge requested that a victim at a sentencing hearing consider engaging in restorative justice after a very lengthy trial process during which the accused, who had sexually abused the victim as a child, had not accepted any of the facts of the case. Furthermore, the accused still did not accept the facts even after having been found guilty. The judge asked at the sentencing hearing whether the victim would like to engage in restorative justice. This obviously puts a victim on the spot. He or she will not be familiar with the information and it would not be appropriate in such circumstances for him or her to engage with the programme. I am familiar with restorative justice processes that have occurred in the midlands regarding the Travelling community whereby, as some members would be aware, there can sometimes be feuding and other issues between families. One day someone is a victim of crime and another day that person is an offender. In that context, the programme was incredibly successful in the midlands community, and the cases which came before the courts significantly reduced as a result of that restorative justice programme. However, funding for the programme was subsequently cut and the cases started to come back before the courts again. Fewer victims were involved as a result of the restorative justice process, so it can be incredibly beneficial.
Regarding the parole process, I have had sight of the Deputy O'Callaghan's Bill and the Sentencing Council Bill 2017. The one thing I would note from the Parole Bill 2016 is that victims are kind of absent from it. I understand that a very objective board is needed but, at the same time, I note that the Sentencing Council Bill 2017 makes reference to individuals who have knowledge regarding the welfare of victims of crime. The welfare of the victims of crime can be very different to somebody who is working with a victim support organisation because, in the latter context, somebody could be potentially objective.
Regarding training, it is very important the Judiciary is involved in any parole process, but I believe any laypersons- for want of a better word - involved should undertake appropriate training to understand the difficulties and trauma experienced by a sexual abuse victim, for example. Based on the victims' directive, they are actually required to engage in such training anyway - for example, if writing written statements to the Parole Board. The example I gave was a Parole Board member using the word "revenge", I think because the individual did not understand the trauma these victims go through and the reasons they put certain information in victim statements. If they have greater understanding of this trauma and are given training in victims' rights, needs and interests, a Parole Board member would be, as I said, much more able to deal with the matter as appropriate.
It is not a question. In fairness to Ms McDonald, she does not need to be an expert on the Parole Bill, but there is a provision in the Bill that allows victims and their interests to be considered by the Parole Board. Obviously, victims do not have a veto but I would not like Ms McDonald to think that victims are absent from the Bill. This is not the case.
I thank Ms McDonald for presenting her report. I have a few questions. She highlighted in her statement restorative justice and the fact that it has been excluded from many of the draft proposals from the Minister's office. Does she feel the victims directive is not being transposed fully and properly in this draft Bill? If not, why not? Has she had engagements with the Department of Justice and Equality as to why it has not provided a more wholesome Bill? She mentioned Canada. Can she provide other comparative examples of countries that have done this properly and transposed it effectively?
Ms Maria McDonald:
The Bill is very good in dealing with a significant number of issues under the victims' directive, but there are some major omissions, which I mentioned. For example, it is an obligation under the victims directive to facilitate the referral of victims to victim support services by the body that receives a complaint from the victim. On our end, this would be the Garda. The directive uses the word "shall": it states that the Garda shall facilitate the referral to victims of crime. Currently, the Bill states that a member of An Garda Síochána or a member of the Garda Síochána Ombudsman Commission may refer a victim where he or she consents.
The difficulty is that a victim could consent to being referred but, due to this discretion, a member of An Garda Síochána would still not refer the victim. There are obviously serious implications for the victim because it could cause re-victimisation in that context. The victim is not being provided with that support and they do not understand why they are not getting that support. There is a positive obligation for the Garda to facilitate referral for all victims of crime. In that context, that section is incorrect and should be amended. In my view, it does not comply with the directive.
From my understanding, the reason the restorative justice aspect is not included in the Bill is because there is no statutory scheme for restorative justice. However, victims are involved informally in such processes, although they are offender-led. If a victim is engaging in such a process, or, in the example I gave the committee earlier of a judge requiring or requesting that a victim engage in such a process, then in those circumstances the safeguards should be put in place in legislation to ensure that a victim is not re-victimised. That is the reason for that process.
Another issue with the Bill is that all victims of crime must have an independent assessment by the Garda to ascertain whether they have special protection needs and, as such, this relates to the type, nature and circumstances of the crime. For example, factors which would need to be considered in that individual assessment include whether it is a hate crime. The personal circumstances of he individual involved, whether he or she has a disability, for example, must also be considered. Currently, the manner by which the legislation is drafted limits the individual assessment to consider particular types of motives. It should be open-ended rather than limited. For example, I know, thankfully, matters will change today but Travellers were not included in the definition of ethnicity. Accordingly, Travellers would not be entitled to the special protections under the Bill, if they were, for example, subject to a hate crime. I know things are changing today - thank God - but that is an example where issues may arise in the future. It needs to be open-ended to ensure all victims get those special protection needs.
It is all very well having legislation but unless one has a means to ensure victims’ rights are protected, it will fall by the wayside. Victims, as we all know, have great difficulties with having an appropriate complaints process available to them. From our research, we find that they are afraid to make a complaint to An Garda Síochána because it might affect their case. When they do go to the Garda Síochána Ombudsman Commission, GSOC, they also find it might affect or they believe it has affected their case. The process by which GSOC goes through a complaint can take two years or more. Victims feel they do not get what they need out of that process. Under the directive, if one is getting information or support services, all one wants is that information to be given straight away. We suggest a simple and clear complaints process for victims to ensure if they do not get information when they reach their trial date, they will get it as soon as possible.
For the past several years, we have been advocating for a federal ombudsman for victims of crime, which would be keeping in line with the Canadian approach and the recital to the directive, which would be a preamble, for example, to the directive. It would suggest the establishment of one-stop shops for victims of crime. If there is a complaint, an ombudsman’s office would be able to deal with it in a swift way. I have been in contact over the past several years with all the ombudsman offices, including GSOC and the Ombudsman for Children. Within their current format, there is nothing preventing them from actually identifying a victims’ ombudsman within their offices without establishing a new office per se. Obviously, there will be procedural issues around that but, from a monetary perspective, one would not be establishing a new office.
On the Deputy's second question on the parole process in other jurisdictions, Canada would be the one with which I would work most closely and would recommend its use. For example, as I mentioned in my opening statement, being able to pick and choose what information one receives, to be able to view a parole hearing online might be basic, but at the same time, they reduce the re-victimisation of the victim while also providing them with appropriate information. It is a similar approach in the United States where information is provided, one can either opt in or opt out and one can view parole hearings or attend them.
In Canada, there is a victim surcharge. For example, if an offender commits a crime, then he or she would have to pay a victim surcharge as opposed to a fine. Those moneys will go directly to pay for the ombudsman's office or victim support organisations, for example. In 1984, America implemented the Victims of Crime Act which, similarly, has a victim fund where moneys are paid directly to victim support organisations.
The criminal justice (community sanctions) Bill 2014, envisaged by the former minister, Alan Shatter, indicated the moneys would go to the Department of Justice and Equality. I am of the view that any victims’ moneys should go to an independent source. The reason I say that is because currently the commission for victims of crime does not exist anymore. If one looked at the Department website, it would lead one to believe there is an independent body currently assessing moneys that go to victims of crime. However, all moneys are distributed by the Department of Justice and Equality’s victims of crime office. Transparency is incredibly important to ensure moneys are given to victim support organisations. We all know of incidents and difficulties which have arisen with charities recently. We all want to ensure that those moneys are given in a transparent way and that victims know how and when they are going get it. I am not in any way criticising the Department of Justice and Equality’s victims of crime office. It does a great job. However, victims believe that the commission for victims of crime still exists when it actually does not. If there was to be a victim surcharge, I would recommend it would go to an independent source such as a commission or an ombudsman's office rather than going directly to the Department of Justice and Equality. As we all know, sometimes means change in Departments.
Ms Maria McDonald:
The issue is that the victim support organisations are underfunded and significantly rely on volunteers. In fairness to the Tánaiste and Minister for Justice and Equality, in recent years she has increased the funding for victim support organisations annually. I do not remember the exact figures but one is looking at an increase of approximately €5,000 for each organisation. Although she has substantially increased it by 20%, in reality it is little money for the victim support organisations.
The victims directive under article 8 indicates victims are required, legally, to victim support services free of charge before, during and after the criminal justice process. The difficulty arises with how we have a fragmented victim support system, unlike the UK which has one organisation, Victim Support UK. Here it is not Government-led but NGO-led. While that is a positive point, it also means that they are relying significantly on Government moneys to provide services. When they are under-resourced, it means the victims cannot necessarily access them.
It is incredibly fortunate that Ms McDonald is in attendance. We are all going to be well-informed for the debate to take place over the next two days. That is good because it is bringing in a new and fresher perspective on the legislation which will be important. Then we can get it right when it comes back on Committee Stage.
We are in a little bit of an unusual situation in that the committee is discussing this Bill in the context of penal reform. Rather than the supports necessary for individual victims, we are looking at what society does with offenders in order to reduce both recidivism and the number of victims by grappling with the issues of crime. In that context, the point about the absence of restorative justice is important. I know it is emotionally difficult and Ms McDonald made the point very well for it to be individually tailored to whatever situation, as well as it being voluntary. If we can get into that process, its success rates are phenomenal in reducing levels of reoffending.
While I think it was mentioned, it should be really spelled out that there are services in Ireland for restorative justice and a legal obligation under the directive to inform people of them. However, that is not being done. It is certainly not being provided for in the legislation and it is not even being done going forward. It is incredibly poor if it is the case, not just in terms of recidivism but because victims are empowered if they can confront the person who committed a crime against them. They can deal with those issues and get some of their confidence back. It is incredibly powerful and often has a dramatic effect on the person who committed the crime. I am curious about that end of things.
The other thing we come across is people being re-victimised by the system, which was also mentioned. When all of the Garda controversy started, we were inundated with cases from people all over the country who had been the victims of serious crimes like the murder of loved ones and other horrendous crimes. At their weakest point, they turned to the State for assistance and were actually re-victimised because in some instances either gardaí were involved in the original crime or the offender was in with gardaí. They then became the victims of a whole pile of unnecessary and unwarranted attention and harassment. Those cases resulted in the unfortunate independent review mechanism and not much justice. That links in with the current lack of State support. How does one stop those who are in the system from reoffending the victim? I am probably not explaining myself very well because I have the flu.
Ms Maria McDonald:
I thank Deputy Clare Daly. On the provision of information, she pointed out correctly that they are legally required to provide information on the available restorative justice services. That is the actual wording used within the directive. The Garda leaflet which is currently made available to victims of crime refers to the restorative justice services available under the Children Act. They are the provisions I mentioned in my opening statement. However, as the Deputy rightly pointed out, Le Chéile, the Probation Service and a significant number of other services are also available to victims of crime. Therefore, the Garda is currently not compliant in not providing that information. It does not necessarily have to be in the leaflet per sebut it must be accessible somewhere - for example, online. The difficulty that arises based on the fact that it has now been removed from the Bill is that the Garda may now amend its leaflet to not inform victims about any restorative justice services whatsoever. As the Deputy indicated, that would prevent victims and offenders from benefitting from the significant progress which can be made as a result of restorative justice and the rehabilitation which can result.
I spoke with a victim of crime who had engaged in a restorative justice process where a family member had died and she indicated that the process was remarkable in the benefit she got from it. She was able to understand what had happened to her child. The family wanted to know how the child died. She also became close to the offender who suddenly understood what the impact of that crime had been on the family. They are in regular contact. While that does not happen in all situations, if people feel they can engage in that process, rehabilitation may occur and hopefully that individual will not come back into the prison system again. The difficulty that arises in relation to the right to information more generally is that even though there is a Garda leaflet, many victims do not even know it exists. It is not very easy to find. Gardaí are not necessarily giving victims the leaflet. They may have to go online to find it. It would be even more difficult for them to find out about the available restorative justice services.
Re-victimisation within the criminal justice process is obviously a major issue and training is key, including within the parole and sentencing process. Also, there must be appropriate supports in place, for example, if a victim comes in during the sentencing process. It is often forgotten that a significant number of sentences are appealed. The victim has to go through the trauma of an appeal against conviction or sentence not knowing what is going to happen. The supports may not be there which were originally in place. One must ensure that they are very well informed. I have come across a significant number of cases where victims were informed at the last minute that a sentencing appeal was coming up, which can cause a massive level of trauma. Adjournments should be made to facilitate the informing of victims.
In the context of re-victimisation and the offender, training within the prison system to give offenders the opportunity to understand their behaviour facilitates rehabilitation. It is not always possible to involve a victim in that process, but if programmes could be established within the prison system to look at that, it would be very positive from a rehabilitation perspective and reduce in the long term the re-victimisation of victims of crime. I hope that answers the questions.
I want to touch on one or two issues. The first relates to information and victims of crime being able to access it. One of the issues there is not only relates not only to victims but also to gardaí. The latter have an obligation to provide the information. I question whether many members of An Garda Síochána have that information to pass on. Is there any central database or list of all restorative programmes in the State? If a garda does not have the information, he or she cannot pass it on. Does the Victims Rights Alliance know whether there is an aspect of Garda training that addresses this? Is there any obligation on chief superintendents in charge of divisions to ensure that the officers under their command have this information? Exactly what is the process to ensure that gardaí have the information to be able to pass it on to victims?
The other issue is the sentencing process. I have always been very critical of the way judges have no obligation to engage in continuing professional development. As such, there is no ongoing training for judges. One becomes a judge and one can remain in the position for however long one wants, with no obligation to engage in any training whatsoever. The Canadian model was referred to by Ms McDonald. Does it involve mandatory training? Ms McDonald said a judge made it mandatory for people within his courthouse, but is it mandated by the state in Canada? Are there models in which there is mandatory training for judges, in particular in relation to sex crimes, domestic violence, and homicide? If that was an aspect of the Judiciary, how would it help victims of crime?
I acknowledge that there are various omissions in the Criminal Justice (Victims of Crime) Bill. Hopefully, we can address those on Committee Stage. The one that has really stuck out for me is restorative justice. It sticks out because the Department included it in the general scheme of the Bill and as such recognised that restorative justice was a critical part of transposing the victims' directive into Irish law. Yet, it is missing from the published Bill. Ms McDonald said it may be because there is no statutory scheme. That may be the case, but has the IVRA received any information as to why that was pulled from the publication of the Bill having been included in the general scheme? My understanding is that it is not just that there is no statutory scheme, but also that there is no legal definition in law of what a restorative justice programme is meant to look like.
Ms Maria McDonald:
With regard to the provision of information, the Garda now has 28 divisional offices nationwide which focus on supporting victims of crime. Those offices should have basic information available, for example, the support services that are available, the details in regard to restorative justice and how victims can get expenses, given some victims cannot even afford to go to court. From my experience, it depends on the divisional area the person is dealing with. Several cases have come to my attention recently where certain more serious crimes have been treated differently to other crimes which are deemed more minor. For example, four cases have come to my attention in the last few weeks in regard to hit-and-run incidents - not fatal accidents, but where cars were run off the road. None of those individuals received information in regard to appropriate support services or the information which is legally required to be provided under the victims' directive.
Obviously, resources are a major issue for the police, although I am not in any way criticising the police. At the same time, the directive is very clear that once a person is a victim of crime, and it does not matter what type of crime it is, the person is entitled to receive that information and the Garda cannot pick and choose which victims get it and which do not. Deputy Jonathan O'Brien has highlighted a very important issue. There certainly needs to be streamlining to ensure it is clear to all gardaí what information needs to be given.
The Deputy mentioned training. Training in regard to victims' rights is provided to new recruits in Templemore. As I understand it, empathy has now been included in that process, and if a trainee garda does not show empathy or is not engaging with the victim appropriately, that trainee will have to repeat the exams, which is a very positive development. The difficulty which arises is for individuals who are already within the current process as to whether appropriate training has been given. I have been told training programmes are available to current staff members but the issue is that I do not know at what level the training is provided or what the uptake is. It is something that needs to be looked at.
The Deputy asked whether the Canadian model was mandatory. The Bill which went before the Canadian Parliament last week would make it mandatory for all of the Judiciary to engage in that process, which would be very significant. I would have to do further research to know whether it is mandatory in other jurisdictions. Obviously, given the independence of the Judiciary, it is something which would usually be judicial-led. For example, the example I gave of Judge Hinkle's incredible work in Massachusetts was judicial-led and we are working with all of the different groups and parties within that jurisdiction.
With regard to the benefit, Judge Hinkle provided evidence that highlighted the significant benefit that has been seen in Massachusetts through using scientific evidence in regard to trauma for victims of crime and the training of judges in that regard. The example I was given was that judges there are now informed of the triggers which need to be watched for in domestic abuse and sexual abuse cases, for example, triggers that might indicate a potential suicide or that the victim is in danger. These are not necessarily obvious and, as I understand it, this has made a massive difference in terms of the understanding of the process from a judicial perspective.
The committee will be aware that, very often, victims of crime and of domestic abuse may have a protection order but they then breach that protection order themselves. As I understand it, the judges there had a better understanding of why that was happening. It can be a very frustrating for a judge who is trying to give those orders when the victim is continually breaching them rather than the offender. To understand why that is happening can be very beneficial for the understanding of the judge in that process.
The Deputy asked why restorative justice was being pulled, in effect. I would point out it was not originally intended to be in the scheme. The Tánaiste and Minister for Justice and Equality worked very closely with the Victims Rights Alliance and other organisations. We had highlighted the need for it to be included and that is why it was subsequently included in the scheme of the Bill. It will be noticed there are other things in the scheme that did not subsequently come into the Bill. As I understand it, this may be with the Attorney General and she may be currently considering the matter. Again, there is no restorative justice legal process in Ireland and there may be concerns in regard to whether it forms part of the criminal justice process, which I submit would fall within the definition of the victims' directive. The Deputy mentioned there is no definition of restorative justice but the victims' directive does provide a definition of restorative justice and that has direct effect. Legally, therefore, the definition of restorative justice in Ireland is the same as the victims' directive in the context that is currently used. Ireland must have regard to that, regardless of whether it has legislation in place.
A group came before the committee in one of the earlier sessions, although it may have been a private briefing I had in the lead-up to that. In any case, I was talking to somebody who is involved in training the Judiciary in England, where there is ongoing training. One of the scenarios that was put to a number of judges was a domestic violence scenario, and it was amazing how different the judges' interpretation of the evidence put forward was to that in the victim impact statements. There was no cohesion or unity in terms of the sentencing of the offender. In some cases, the judges took into account the victim impact statements and in other cases, they were not taken into account as much.
That is where the training needs to come in. It should not matter what courthouse one goes into. If the same evidence is presented in Dublin, Cork or Limerick, the same process should be available for victims and the same information should be given. I believe the members of the Judiciary are not aware and some of them are there way too long, to be honest.
I could name a few of them. One of the biggest issues is that there is no obligation on them to engage in any training whatsoever. There is no way of removing them either, which is the big problem. Members of the Judiciary cannot be forced to engage in training and - I know we are in public session - where there are judges who make absolutely mind-boggling decisions that no one understands, and they do that consistently, there is no way or removing them. As long as we have a situation where judges like that remain in place, then victims will always be failed. That is my honest belief.
Ms Maria McDonald:
I hope I can alleviate some of the Deputy's concerns. I have spoken with some judges. The victims' directive is on their agenda and they have been provided with training in regard to certain aspects. I am aware of that, although there is only so much I can say. I am very hopeful because, having been before the courts, I have seen how a significant number of judges are using the victims' directive and are cognisant of the victims' directive, notwithstanding the fact the legislation is not yet in place. It is very difficult for them. For example, the victims' directive requires that a victim would not be cross-examined about his or her private life not related to the criminal offence, where he or she has special protection needs. That is massive; it is a mind change. The only way a person can be cross-examined now is if it is due to the person's prior sexual history. Judges have been aware of that and they have been managing it.
I understand the Deputy's position and the issues. I understand the new judicial council Bill will facilitate some of those changes. It might be appropriate to look at the Canadian Bill that is being put forward to see whether something could be written into the judicial council Bill in regard to the reporting of the sexual abuse training that is being provided or the training on certain other issues. That does not require the members of the Judiciary to do it and still allows for their independence, but it does provide transparency and accountability as to what training has been done, and it makes the public aware it has been done in that context.
I thank the witness for her presentation. There is so much involved in this whole area and it is so complex. It is not going to be easy to make things better quickly. It is probably going to require a cultural change in a lot of areas. To pick up on the points made by Deputy Jonathan O'Brien regarding education, legislation is grand but it is pointless and meaningless unless it is implemented. The Garda Inspectorate, for example, has completed three reports since 2013 but how many of its recommendations have been implemented?
In terms of the last report, which was on Garda reform, the garda charged with overseeing implementation of the reform programme in Phoenix Park is actually more a part of the problem than the solution. Deputy O'Brien spoke about training for judges but there should also be more ongoing training for gardaí and that training should be done by civilians rather than by in-house staff. To the best of my knowledge, it takes about four times longer to qualify as a hairdresser than as a garda. That has to be an issue. Even in football, League of Ireland managers who have all of the qualification badges must go on refresher courses or they lose their licences. We should apply that to other areas.
We have been talking about reducing recidivism which will, invariably, reduce the number of victims of crime. An Garda Síochána will be involved in a big way in that and even with the best will in the world, they will need more resources if we are to see a new approach. They are underresourced and are hard pressed to do their job as it is. Without resources, a lot of what we are talking about is pie in the sky, in terms of them getting involved in a whole lot of other areas that would be very positive. The State will have to recognise that more resources will be needed; otherwise we are just talking to the sky.
At the start of her presentation Ms McDonald spoke about the validity of using prison for certain things. I am strongly of the opinion that about 90% of the people in prison should not even be in there. Avoiding prison by paying fines is all very well for those who can afford it but it amplifies the divisions in society in the sense that it is not a big problem for those who are not short of money, but it is a huge problem for those who are short. Paying a fine rather than going to prison is a punishment for the less well-off but not for the well-off.
This committee has discussed the fact that fining people who are poor in order to keep them out of prison is definitely a punishment but those who are well-off should be made to do community service rather than being able to buy their way out of their problems. In terms of stopping such people from re-offending, the fact that they can just write a cheque every time they get into trouble means that there is no incentive for them to change their ways. If they are made to do community service, however, they will think twice because a lot of them would find that demeaning, despite the fact that it would be very educational for them and might bring them down to earth a bit. Coming up with schemes to keep people out of prison has to be a good thing because putting people in prison is doing nothing to reduce recidivism and in that sense, is doing nothing for victims.
The sentiment of so much of what Ms McDonald has said is very good. Does she think that the State is prepared to put its money where its mouth is and provide the resources that are needed in order to make all of this happen?
Ms Maria McDonald:
Yes, he is going to get me into trouble although I make trouble for myself sometimes too. Deputy Wallace made three points, the first of which relates to An Garda Síochána and training. I completely concur with the Deputy. Training must be provided for current staff members, not just for recruits coming out of Templemore, and appropriate resources must be made available to provide that training. I would like to see more victim support organisations involved in providing trauma training to members of An Garda Síochána so that they can better understand why victims of crime are sometimes not in a position to give evidence, to produce a victim impact statement or why they may do things that seem inappropriate, for example. Trauma training is very important in that context.
The second point related to fines. As I said already, I have to be quite careful about what I say here, given that our member organisations have different views on the prison service. That said, I personally have seen instances within the courts process where compensation has been required to be paid and the individual concerned was able to pay it but another individual would probably have gone to prison in those circumstances. In that sense, an individual's resources can determine whether he or she goes to jail in certain circumstances. If a fine is imposed, I would recommend that a victim surcharge or some form of compensation should be established in order to at least give money back to the community.
The Deputy also raised the issue of community service which is very effective. I have seen it work well. From the perspective of a defence lawyer, I have seen the benefits of community service. Certainly, it is a means of keeping people out of prison but it can also be of significant benefit to society as a whole, depending on the work undertaken. It is very helpful in certain circumstances.
As to whether the State is prepared to provide funding for victim support, there has been an increase in such funding in recent years. However, I am afraid that millions of euro need to be provided in this area and I do not say that lightly. We are not just talking here about victim support organisations being adequately funded, but also An Garda Síochána. The latter has seen a significant increase in resources in recent times, particularly for information and communications technology. Victims now engage with An Garda Síochána via information and communications technology and I know that the website is being changed at the moment. Money is all very well, but there must also be a willingness to change. I have been indicating for some time that changes need to be made to the Garda website for victims of crime. For example, if one clicks the information on support services tab, one sees a link to the Commission for Victims of Crime which does not exist anymore. I know that An Garda Síochána is updating its website and I welcome that but we cannot wait forever for the changes to be made. The victim support information should be updated now. We should not have to wait for those resources to be made available. Victims should be able to access that information online.
I have also been advocating for a long time a system that has been rolled out in the UK and in various formats in other jurisdictions, namely, a track-my-crime facility. Victims can log in securely and access details of their case. They are provided with a response to their queries within 24 hours. Information is also translated for those who do not speak English. This also means that there is a written record because often victims will say that they telephoned five or six times but no-one called them back. The e-mail format means that victims can receive the information they request. A pilot scheme was run in the UK and while there were some initial teething problems, the system has now been rolled out nationwide. In the long run, from a resource perspective, providing victims with information, support, protection and in some cases counselling, will reduce the costs to the State. In terms of hospitalisation, inquiries, complaints to GSOC and what is required and so forth, if victims are given the information they need straight away and resources are made available, that will facilitate a much better process for victims of crime and reduce costs for the State in the long run.
Apologies for being late. The traffic was very bad. I thank Ms McDonald for her presentation. I have a few queries around the training of judges, gardaí and the area of addiction. We know that for a lot of those people in prison who are perpetrators of crime, addiction is very much involved. I do not know what the statistics are on how many people are in prison because addiction has brought them there but I imagine it is quite a high figure. Does Ms McDonald believe it to be a good idea for the police, judges and members of the Irish Prison Service to be trained in understanding the disorder of addiction? When somebody who is in addiction presents at court having committed a crime, judges could look at the possibility of giving them the option of a referral to an addiction treatment centre. Would that be one way forward? Many people in such cases are in addiction, albeit not all of them obviously. Instead of asking them to pay a fine or giving them community service, could this be an option? I agree with Deputy Wallace that it is a huge cultural change. It is important to implement all of the reports that have already been produced. Great work has been done on reports but there has been very little implementation. My question is on the disorder of addiction and how it can be addressed when it comes to crime.
Ms Maria McDonald:
I thank Senator Black. I will answer the second part of the question first about offering offenders rehabilitation in order to seek help. That happens currently, in an indirect manner. The victim always must consent to that process. Offenders may decide they want to seek help, they may contact Cuan Mhuire, which may set up a place and the judge might give such offenders the opportunity to engage in that process. Potentially, in those circumstances they may give a suspended sentence, depending on what comes out of it. It is generally up to the offender to engage in that process themselves. From a victim's perspective, rehabilitation is very important because addiction is a spiralling issue, where a person is going to come back before the courts again and again. If the addiction can be resolved then the chances of re-offending are very likely to fall. It would therefore be very positive from the victim's perspective. How one actually strategically does that is a difficulty because as I have said, it is sometimes quite difficult to get in to those rehabilitation processes. Unless there is a clear process available to the judge as to what they can and cannot do in those cases, and unless the offender is aware of them, then it can cause difficulties.
On the issue of training, I completely concur that training should be provided on addiction issues. It would be of benefit to the offender and the victim of crime. I was involved in a case involving gambling addiction and the judge understood that concept so the offender got help and support, whereas another judge may not have understood the concept of gambling addiction and a very different result may have happened for that offender as a result. It is important that judges understand addiction. Very often somebody comes before the courts again and again, so the judge would very often like to have an option to refer that individual to get support services if possible.
Ms Maria McDonald:
The offender would have to know of those services and very often the obligation would be on the solicitor to tell them. It is very hard for an offender when they are in that addiction process to know about the services or to consider their options. They must be told about them. Arguably, the judge could have a role to indicate this, to ask the offender if it is something they have considered and suggest they talk to their solicitor about it. With training, solicitors and barristers would also need to be aware of the appropriate services and the local services, not just the Judiciary.
In the absence of any other question, I will pose one myself. In Ms McDonald's opening remarks, she indicated that were the Bill not amended, the State could find itself facing infringement proceedings by the European Commission on foot of its failure to properly transpose the directive into Irish law. The deadline for that is more than 12 months past. Have any infringement proceedings been taken against any errant member state? What is the current status? We have looked at some of the international realities but let us take a little snapshot of the situation of the member states. More than 12 months beyond the deadline, how out of kilter are we with other member states in this regard and do we know if the European Commission has applied any pressure across the member states who have not complied as required?
Ms Maria McDonald:
The story there is that infringement proceedings have issued against Ireland and 11 other member states, as of December 2016, for a failure to communicate in respect of the victims' directive. That is different to infringement proceedings for not implementing the directive. It is because they have not informed the Commission whatsoever what they are doing. I understand that while Ireland is still outstanding on this issue, a significant number of those member states have now provided communication. Even if they did not communicate it, they actually have legislation in place within their own jurisdictions so they are complying. Even though 11 states seems a lot, it is actually a lot lower, and Ireland is probably one of only a few countries that remain outstanding in not having in place some form of legislation. Just because other member states have legislation in place does not mean the legislation is very good and it does not mean that victims are getting their rights in practice; it just means those countries have put it within the criminal justice system. Once this Bill has passed, Ireland would then communicate on the law because it cannot communicate it until that happens. From speaking with my contacts within the European Commission, restorative justice is a major issue and although I cannot speak for the Commission, based on the victims' directive, it would deem that the absence of the directive in Irish law is obvious and may result in infringement proceedings.
There is another issue around the definition of a victim of crime. The victims' directive includes indirect victims of crime. This would include a child who had witnessed domestic abuse. This may be an oversimplification of it but it gives an example. This is not currently covered within the Criminal Justice (Victims of Crime) Bill 2016 and the Commission may also be concerned about this if the Bill is implemented in its current format. Regardless of whether one reports a crime, a person is entitled to support services and information. Indirect victims such as children are also entitled to that right to information and support services. If they do not fall within that definition then it could cause difficulties at a later date.
Can I deduce from what Ms McDonald has said that the majority of member states have transposed the directive as required, within the timeframe or not and regardless of whether they tick all the boxes on all the specific elements?
Ms Maria McDonald:
A significant number of them have. I cannot fully answer the Chairman's question but a significant number of the countries have. I know that with Brexit it may not be the best example but the UK has a victims' code in place. The UK had this in place even in advance of the victims' directive coming into force. The code does not, however, have legal force.
The issue which arises, while they have complied with the directive, is whether victims are going to be able to access those rights in reality if it does not have legal force. In those circumstances, does it really comply with the victims' directive?
Are we okay?
I would like to thank Ms Maria McDonald for attending today and for not just imparting useful information, but also for a detailed presentation and response to members' points and questions. We are thankful to her for that. It will greatly assist the committee in the consideration of these issues and in the final preparation of our report, which we will present to the Tánaiste and Minister for Justice and Equality on the conclusion of this series of hearings.
I will mention while we are still in public session that in our sitting next week, on 8 March, we will have discussions on penal reform with representatives of the Irish Prison Service and the Probation Service. Ms McDonald had it all to herself today, but there will be two bites of the cherry next week. Each is scheduled for a one-hour session. I would like, because this is the practice that we have when we have a guest before us, sniffles or no sniffles, to invite everyone for a photograph which will be part of the compendium for our report.