Joe Carey (Clare, Fine Gael)

The Minister has not been shy or lazy in his legislative programme. One could not say we are in short supply of legislation. The constituents and citizens of Louth can be happy with their man who has created something of a whirlwind when it comes to legislation.

Having said that, one must benchmark a canon of legislation against activities on the ground. How effective is the implementation? How are things operating on the ground? We must consider how the Garda will work with all this new legislation. Have all senior experienced posts been filled following the exodus of senior management last year? Are the Garda and the Director of Public Prosecutions properly equipped to get cases to court and to enforce the legislation? The Government can introduce legislation but if there are impediments in regard to resourcing, perhaps we would be better off coming down a gear or two.

Having said that, there are some points I wish to raise in regard to the Criminal Procedure Bill and victims of crime. The victims' charter and guide to the criminal justice system 1999 committed to giving victims of crime a central place in the criminal justice system but here we are 11 years later with the Minister's legislative proposal to establish these principles. In 2008 the Minister, in response to Deputy Alan Shatter's Private Members' motion on the subject of victims' rights, spoke about a new ground-breaking Bill to be drafted and presented to the Oireachtas by spring of 2009. We now have that Bill, except that in the interim it has become in the Ministers words, "A Bill that undoubtedly breaks new ground but it does so in a way which is measured and which respects long-established and cherished legal principles". "Breaks new ground" is, as the Minister says, quite a measured phrase. "Ground-breaking" as a phrase sounds much more dynamic and forthright. There is a touch of the "Yes Prime Minister" in the Minister's use of words. One must ask the question, what happened along the way?

The Minister has not gone far enough with this legislation in regard to the treatment of victims before and after a relevant trial. He said, and I acknowledge it, that this legislation places victims of crime on a new and stronger footing within the trial process. There is a new emphasis on the importance of the victim impact statement and this is welcome.

However, the Minister has missed an opportunity to place the dignity of the victim at the centre of events during the important junctures in the criminal justice system. What happens before trial in preparation for a forthcoming ordeal and after trial when issues concerning either acquittal, sentencing or parole of the accused or convicted plays such a significant role in how the victim subsequently deals with the matter.

Crime victims will not look on this legislation as something that eases their burden or vindicates their rights. The aspects of this legislation that apply to their plight will do little to convince them that the balance in the system has tipped back in their favour. I would have preferred if the Minister had used this legislative opportunity to present a more robust enhancement of victims' rights.

There are many instances where the victim has had to deal with the impact of the crime committed against them. I recall one case from my own constituency where a criminal trial concluded in Dublin with a suspended sentence for the convicted person, subject to clear restrictions whereby the convicted persons was not to go near the victim. Both parties shared the train home from Dublin and on arrival at Limerick station, the convicted person proceeded to flick a cigarette butt at the victim.

The incredible nature of the event was that it occurred on the way home from the court. Due to the fact the victim still had the fortitude to report the breach of condition, the convicted person ultimately received a custodial sentence. One must ask the question, how many victims would have had the strength to follow through on a day such as this?

This type of incident illustrates my point that the victim is not afforded proper recognition and protection in Ireland. In many cases, the perpetrator of the crime believes that he or she can continue in a manner such as this because he or she has little or no respect for decisions of the court.

That we still abide by age-old and well established principles within the court does not mean we cannot offer more robust supports to victims both inside and outside of the court. One could not, in any way, describe this legislation as centred on the victim. The Minister has not moved the pendulum of the criminal justice system much back towards the victim with this legislation. The changes proposed, although welcome, are modest in nature.

The manner in which this legislation deals with retrial is one of potential difficulty. The integrity of any retrial which is, in essence, a new trial must be protected. One would expect that from the list of potential crimes which this legislation covers, that great care should be taken to avoid publicity in advance of a new trial - publicity that might influence potential jurors.

The very nature of a retrial of more high profile cases may place the Director of Public Prosecutions in the invidious position of finding it difficult to prepare a case which is not, in some way, influenced by the previous case. There is a precedent for this as per the comments of the Minister for Health and Children on the former Taoiseach, Mr. Charles Haughey, in that the higher the profile of the original trial, the more difficult it is to create correct circumstances for a new trial. I hope the Minister will tease out this issue on Committee Stage.

The Minister was specific on the issue of retrospective application and was at pains to explain his position on the matter. He appears to be acutely conscious of the separation of powers between the Oireachtas and courts. I fail to see how the general presumption in criminal law against retrospection would be undermined were this legislation to be applied in a retrospective manner.

The Minister made much of the fact that Article 15 of the Constitution and Article 7 of the European Convention on Human Rights both make clear that an act that was not an offence when committed may not later be regarded as an offence. This is not the issue at stake. Surely the point is that a retrial takes place on the basis that the original trial was tainted and the original trial is only tainted by the fact that a recognised offence has taken place.

The instruments to be used with regard to retrials once the legislation has been enacted do not undermine the separation of powers. This objective set out in the Bill has been achieved in other jurisdictions which practise common law. I remain unconvinced by the Minister's argument in this respect and ask that the issue be more comprehensively addressed on Committee Stage.

While I welcome the provisions of the Bill, I am disappointed the Minister did not go further to address how the State treats victims of crime outside of the courts. The legislation is a missed opportunity.

See this speech in context