Pat Rabbitte (Dublin South West, Labour)

I join the Minister and Deputy Charles Flanagan in commending the work of the review group and Professor Gerard Hogan. I am glad to be able to give a broad welcome to this Bill which introduces some reforms of the criminal justice system and which has clearly been informed by the proposals of the review group, although the proposals therein are not identical to the review group's in all respects.

There are matters that will require to be teased out on Committee Stage but, in principle, I welcome the prominence given to revision of the existing statutory provisions for victim impact statements and to widening the range of persons who will be entitled to make such statements. However, I have some questions for the Minister in that regard.

The rule against double jeopardy, meaning that a person acquitted of an offence may not be retried, is a long-standing precept of the common law probably best outlined by Lord Wilberforce who stated:

...any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility, and having reached that solution, it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interests of peace, certainty, and security, it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: those values cannot always coincide.

In addition to the common law, the rule is also enshrined, as the Minister remarked, in the protocol of the European Convention on Human Rights. The rule against double jeopardy was amended in England and Wales earlier in this decade and in a number of other common law jurisdictions. Irish jurisprudence shows that the rule against double jeopardy has caused some misgivings down the years, and it is interesting to trace the law on this issue. I presume it is in response to that that we have Part 3 of this Bill where the Director of Public Prosecutions will be entitled to apply to the Court of Criminal Appeal for an order quashing a person's acquittal and ordering a retrial.

As I understand it, the Director of Public Prosecutions may apply for a retrial in two circumstances - where new and compelling evidence has become available and where an acquittal is tainted. With the development of DNA and in the current environment where gangland feuding and serious criminal trials are of such a character, it is possible that the occasional acquittal is tainted.

The tests that will apply in the legislation seem to be properly restrictive and rigorous. Most reasonable people would assent to departure from the rule on double jeopardy in the circumstances prescribed. For example, in the matter of new and compelling evidence, it must be evidence that is reliable and substantial in character which directly implicates the acquitted person and that the evidence was not adduced in the earlier proceedings and could not have been so adduced.

I do not believe anyone could take serious issue with the court being empowered to make an order for a tainted acquittal to be quashed and the person retried in the limited circumstances prescribed. An offence against the administration of justice in this context means an offence under section 41 of the Criminal Justice Act 1999 - in other words, intimidation; bribery, corruption, interference with a juror, a witness, a judge or a court official; attempting to pervert the course of justice; perjury; the making of a false affidavit; or conspiring or inciting another person to commit any of the above offences.

At the same time, the recommendation of the Irish Council for Civil Liberties that the Bill should be amended in order that the new provisions apply only to the most serious indictable crimes has a great deal of merit. The Irish Council for Civil Liberties also recommends that a statutory witness protection scheme be established. The Minister will know I published a Private Members' Bill in that regard. It would appear my Bill is being resisted by the Garda Síochána, and perhaps it has good reasons or good arguments for doing so. However, I have not been told what they are.

I recall the Garda Síochána similarly resisted the Private Members' Bill I published on Garda surveillance. Again, perhaps the Garda had good arguments but it never made them public, nor did it relay them to me and, strangely, they were withdrawn as soon as the Minister for Justice, Equality and Law Reform needed to be seen to be doing something.

I have great concerns about the practice in the House, more so with this Minister than with some of his colleagues and some of he predecessors, where one publishes a Private Members' Bill and arguments are dredged up stating that we cannot do something because it would only make the situation worse, that the Minister is advised by the Attorney General that it is not permissible or that the Garda Síochána is resisting it. A year later after another atrocity, if not the same Bill but one with the same intent is given expression in law which was out of bounds one year earlier. I have never been able to get my head around that. Is it that we are just enacting law to be seen to be doing something but that it is envisaged that much of the law will never be invoked? It is a real concern.

I do not know which solutions are best but I have grave reservations about the adequacy of the measures in place for the management of the non-statutory witness protection programme. I have direct knowledge of serious criminal trials where innocent persons were required on pain of incarceration to give evidence and they did so in fear of their lives. These persons have paid a huge price for doing their duty by the State, including loss of employment, break-up of marriages and dislocation from their own environment, and they believe their lives are at risk.

The Minister must turn his mind to this issue and the obligation on the State to provide reasonable ongoing protection for citizens who have done their duty by the State at such personal cost and who live in ongoing fear of their lives. There is no statutory witness protection programme and it seems to happen on a fairly haphazard basis.

By its nature I cannot go into it in the House but I suspect the Minister is probably in possession of the same knowledge as I am. He knows that as a result of happenstance one can find oneself, in effect, compelled to give evidence in a serious criminal trial. One may feel it is one's first duty as a citizen and, at great risk to oneself, come forward to give evidence. One may also be obliged by the State, on pain of incarceration, to come to court and give evidence. One may believe one is on an informal witness protection programme. I am aware of a number of cases where witnesses did their duty and now find themselves in circumstances where they lost their employment, cannot go to work where they always did, spent some time out of this country, have come back and are fearful their place of abode will become public, and genuinely fear for their lives.

If I had the answers I would tell the Minister what they are - it is probable he is also having difficulty in deciding what are the best solutions. In an environment where cold-blooded, vicious crimes are committed regularly and so much of the valuable work done by the Garda Síochána depends on it being able to produce a witness in court who can give testimony to having seen the crime committed, which is critical for a conviction, we have a responsibility to protect such people. That is not necessarily happening at the current time.

The Minister's contribution contained substantial references to the issue of retrospection and he set out a cogent riposte. I presume he has done so because he has been subject to representations from colleagues in the House on this issue. Deputy Sherlock raised this issue with me on a number of occasions. I suspect I recognise similarities in a case adduced by Deputy Flanagan. The issue which arises is that of retrospection. The Minister, on the basis of the separation of powers, seems to have the view that there is a constitutional impediment to dealing with the issue of retrospection. I do not know what will be the effect of the limited amendment which the Minister promises us.

From the Minister's comments, I understand he can extend the scope of the Bill to cases charged before but tried after the commencement of the legislation. I have no knowledge of how many cases such a provision is likely to capture. Colleagues who have made representations to me on this point argue that similar legislation has been made retrospective in the United Kingdom, or as it relates to England and Wales. The Minister will draw my attention to the fact that we have a written Constitution, the separation of powers is paramount and that is something with which such a provision would interfere. It is something I would like to tease out on Committee Stage because a number of colleagues from various parties in the House are concerned about this aspect of the Bill.

The attention given to victims and their being brought more to the forefront is welcome. I welcome it and agree with the remarks of Deputy Flanagan. Section 5 of the Criminal Justice Act 1993 introduced a procedure for victim impact statements, which is the provision under which we have been operating. I understand the review group took the view that previous difficulties with victim impact statements should be ameliorated in the interests of doing justice to all victims of crime and that the statutory provision should be recast so as to permit the persons most directly affected by an offence, such as the next of kin of a deceased victim of crime, to give evidence at the sentencing stage.

However, this would be subject to the discretion of the court where the impact on the person was too remote or where more than a very limited class of immediate relatives wished to make a statement. Some flexibility in judicial discretion would be of benefit to deal with situations where a deceased victim left an unmarried or same-sex partner behind or where more than one separate family member wished to make a statement. In order to avoid any possibility of inappropriate use of statements, the amended statutory provision, as recommended by the review group, would include a power vested in the court to direct that the statement as delivered or any part of it would not be published or broadcast without prejudice to any other power of the court, something with which we all agree.

The review group said it would seem to be a sensitive way to deal with any such problems which would suffice in the vast majority of cases where any issue might arise. The relevant provisions in the Bill, as published, are sections 5 and 6 and the explanatory memorandum tell us section 5 of the Bill amends the 1993 Act by inserting a new section, section 5(a), the purpose of which is to allow a child, a person with a mental disorder or any other person, with the leave of the court, to make a victim impact statement by means of a live television link, thereby removing the requirement that the person be present in court.

Section 6 goes further and its purpose is to make provision for any questioning of a child or a person with a mental disorder regarding his or her victim impact statement to be done via an intermediary. The explanatory memorandum states the court may appoint an intermediary where the age or mental condition of the child or person is such.

I do not recall it was ever the intention of the victim impact statement process to allow for cross-examination by counsel of surviving members of a family, let alone the cross-examination of children or persons with a mental disorder. I may be alone in this but I cannot believe that most people would believe, as happened in the recent Lillis case in the Central Court, that a case should end with a victim impact statement from the child of the family concerned being subjected to cross-examination by counsel or intermediaries in a public forum. I cannot believe there is public demand for the cross-examination of children or persons with mental disorders in the witness box in a case where one parent has killed the other.

On the one hand, one can argue that it is important that justice be administered in public. Thus, a statement from a child should be read out and be subject to cross-examination. On the other hand, the potential for the cross-examination of a family member, never mind a cross-examination of a child or a person with a mental disorder, on his or her victim impact seems to me to be prurient and not to serve any public interest. Is it the case that a statutory law reform measure which used to be about victim impact statements and how they should be received prior to sentencing has now become a measure to receive additional evidence that serves only a public appetite and has nothing to do with the sentencing process?

We must consider, perhaps not in regard to this Bill but to the discussion we have had and the points raised by Deputy Flanagan, whether new law is always the answer to our problems in the criminal justice system. No matter how many new laws we enact the question of enforcement arises. In the criminal area the question arises of detections and convictions, which are falling. We are not having and have not had any debate in this House - although we should - on the most recent report from the Garda Síochána inspectorate. I raised the matter with the Minister by way of a parliamentary question recently but he was not having one of his better days and I got no answer. However, he is a very affable fellow in private-----

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