Charles Flanagan (Laois-Offaly, Fine Gael)

The Fine Gael Bill would place the commission for the support of victims of crime on a statutory basis for the first time. In the case of sexual assault cases, victims would have the option of making the names of the accused public while theirs remained anonymous. The current position is that for the accused's name to be made public the victim must also go public, an unfair provision that places the victim in an invidious position.

The Bill proposes the establishment of a victim's charter of rights which may be asserted by way of application to the Ombudsman. This would not, however, entitle a victim to claim in a civil court for this right but neither would it prejudice his or her right to claim against the State for negligence in the normal way. The effect of such a claim is limited to the commission for the support of victims of crime being informed of the breach of the right and that no other penalty is imposed.

It is regrettable many of these important provisions have been omitted from the Criminal Procedure Bill 2009. I hope that on Committee Stage we might have a more mature and constructive debate than we have had. Deputy Alan Shatter is keenly aware of the victim's status - or lack thereof - in this jurisdiction. He has worked on the Fine Gael Bill for many years which is more comprehensive than the Government's. Although the period of engagement promised by the Minister would have allowed him to come forward with comprehensive victims' rights-based criminal procedure legislation, he has not. The Minister seems to have a closed mind on this matter. I hope his colleagues, Deputies Thomas Byrne and Treacy, on the justice committee will have an opportunity and be better placed than I am to open the Minister's closed mind. He has adopted a narrow-minded approach, the result of which will be a poor service to the victims of crime and their families who will ultimately lose out.

However, I welcome provisions in Part 2 regarding victim impact evidence and the decision to extend to family members of victims of crime the entitlement to make an oral statement or a victim impact statement at a sentencing hearing. I note the provisions dealing with double jeopardy which deal also with such issues as intimidation, errors in trial and new evidence emerging which may not have been available at the time of the original trial. We must ensure this welcome provision is robust enough to withstand any constitutional challenge.

Speaking on this Bill in the Seanad, my colleague, Senator Eugene Regan referred to the constitutional basis of the rule against double jeopardy, the provisions of the European Convention on Human Rights and the Charter of Fundamental Rights, now part of European Community law, and the necessity to ensure this Bill is compatible with these fundamental legal texts.

There is an obvious need to strike a balance between the rights of the accused and those of the community. It is most desirable that guilty parties who have escaped conviction as a result of, for example, a lack of scientific evidence such as DNA evidence or through witness intimidation, are held to account. In this regard, I welcome the publication of the Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010 and look forward to debating its provisions in the near future.

Judges frequently refer to the need for action from the Legislature to make the law certain. The rule concerning double jeopardy is one that must be addressed by the Oireachtas, taking cognisance of the jurisprudence of the European Court of Human Rights and the provisions of the Constitution. Many lawyers have expressed concern at what they see as an ongoing erosion of rights by the Government in recent years. The Minister championed the recent package of criminal justice legislation on the basis he was tightening up the law to ensure greater levels of conviction. In this regard he invoked the powers, practice and procedures of the Special Criminal Court.

Of course we must proceed with the utmost caution when making changes to age old principles concerning the right to a fair trial, and concerning the golden thread of the criminal justice system, namely the right for an accused party to be regarded as innocent until proven guilty beyond reasonable doubt. In this regard, there is a considerable onus on us, notwithstanding what members of the Judiciary might say from time to time regarding changes in legislation. We must be absolutely certain here in this House that poor resourcing is not holding back convictions before we change legislation and examine legislative reform. I do not accept that by changing legislation we will deal with matters comprehensively. On calls for changing of the legislation and press conferences by the Minister for Justice, Equality and Law Reform in the presence of the Garda Commissioner following the recent continuous litany of serious and organised crime, legislation alone will not address the issue. We would be doing the public a considerable disservice if we were to take the view that legislation is the answer rather than the matter of resourcing.

A case in point is the lack of resources in the area of DNA evidence. I would strongly argue that lack of resourcing in that area may have prevented convictions being secured in the past. It may be not so much the need to change our legislation but rather the lack of will to apply appropriate resources that would make the fundamental difference and achieve a higher level of conviction. As I have stated previously, I would urge the Minister with this legislation, as with any other, to look at resourcing as a first resort and, perhaps, changing the law as a secondary resort.

The balance in the Criminal Law Review Group recommended an exacting threshold in respect of the DPP requesting a retrial and to preserve the integrity of our criminal justice system, it is essential that in the legislation we provide such a threshold. I would be supportive, as I have stated in the past, of the idea of allowing the DPP to have a right of appeal to the Supreme Court on a with-prejudice basis against an acquittal, where the acquittal arises from an erroneous ruling by a lower court on a point of law. I note what the Minister stated in his speech about the need to set out clearly the grounds, which are not set out in the Bill as initiated or, indeed, as passed by the Seanad. It is important that not only do we set out clearly the grounds, criteria or qualifications, but also, as the Minister underlined, the guarantee of legal representation and the covering thereof. I would also support the right of appeal by the DPP against a decision by the Court of Criminal Appeal not to order a retrial following the quashing of a conviction.

Section 19 of the Bill again reflects what my party has been saying on the admissibility of evidence. We introduced a Bill reforming the law in respect of admissibility of evidence last year but, regrettably, it was subject to the hammer blow of the current Minister. I welcome the introduction of greater measure of flexibility regarding admissibility and measures to provide that evidence that may be obtained by means of some technical error in procedure by the Garda Síochána will not be deemed automatically precluded as evidence in a trial.

I also welcome the provisions to expand the procedure regarding evidence by video link, especially where children are concerned. I was pleased with, and congratulate the Government on, the fine complex which is the criminal courts building, which we had an opportunity to visit in recent times. The layout of rooms and the conditions there are second to none. Doubtless had the building not been constructed during the course of time in which it was, it probably would fall subject to the straitened economic circumstances into which the Government has led us. Its conditions include the video link, the children's suite, the witness suite, and the essential provision that defendants are kept separate in so far as possible from witnesses. Only this week a rather chilling experience was brought to my attention where a witness in the course of a court action openly issued a threat in the form of intimidation to a witness within the court building, almost in front of the judge. Undoubtedly, this must not be tolerated in the criminal justice system.

On the matter of the absence of information to victims, the Minister has been particularly strong on the need to ensure that victims are fully informed as to the process. Only this week, an extremely disturbing case has been brought to my attention where, in the aftermath of an horrific murder of a young girl in Cork in 2002, the person responsible pleaded guilty, was convicted by the courts on a guilty plea some short time thereafter and was given a life sentence and a consequent 15 year sentence for the attempted murder of another person. Eight years later, this matter is still before the courts. Eight years later, and having regard to the fact that the person who committed the murder entered a guilty plea, the family of the girl who was murdered have not been fully informed as to the proceedings. Who speaks for the family? Certainly, it is not the defendant or his legal team who are engaged in the lengthy appeal process, not the Attorney General and not the Minister for Justice, Equality and Law Reform, the latter two of whom are named parties in the proceedings. I wonder where is the redress for a family who merely seek to be fully informed as to the process. It appears that it is not the job of the Attorney General, it is not the job of the Chief State Solicitor and it is not the job of the Minister. Whose job is it? When we state that we need to include the victim in the process and to ensure that the victim is fully informed, I understand how the gardaí might do it in certain circumstances but in the case to which I refer, where the matter has been subject to various legal arguments in different court fora over an eight year period and is still not concluded, one must ask the question, who represents the victim in such circumstances, particularly when it is a traumatised family who have yet to see closure on what was a horrific murder of a daughter and a sister? It is essential that we not only enhance by way of legislation victims' rights and build into our laws procedures that will bolster the rights of the victim, but also ensure that the legislation is proper and adequately resourced.

This is an important Bill. It encompasses a great deal of criminal practice and procedure. There are issues which will require greater scrutiny and amendment on Committee Stage. I look forward to re-engaging with the legislation then.

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