Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

Gabhaim buíochas leis an Ceann Comhairle as ucht an deis seo a thabhairt dom labhairt ar an mBille ríthábhachtach seo, the Criminal Procedure Bill 2009. The Bill amends the law with regard to victim impact statements and the double jeopardy rule. It addresses peculiar circumstances which have arisen in recent years, in particular, the victim impact statement which, of late, has become an accepted and welcome part of the sentencing process. This allows the victim of a serious crime to have some input into the sentencing of a person convicted of an offence against them. This written or spoken statement by a victim or their representative about the physical and emotional impact of a crime allows them to provide information to a court regarding the effect of a crime on them and their loved ones. That is obviously an aid to the court in administering an appropriate sentence. It also allows a judge to have the full facts of a case, which in the past were not available because the effects and the victim's viewpoint were not reflected in the proceedings. The new change in recent years is a welcome one and, in that regard, the changes contained in the Bill constitute a welcome addition also. The situation properly reflects and respects victims' rights, thus ensuring that their views and the impact of a crime upon them, are properly communicated at the appropriate stage of the criminal justice process.

We must always bear in mind that a victim impact statement does not interfere with the right of the accused to an unbiased trial. The victim impact statement, with appropriate regard for the rights of the accused, can be, and, to date, has been, a valuable part of the experience of the criminal justice process for a victim of crime. Often the first step towards the attainment of justice for a victim of crime is recognition of the wrong done to them and the injustice they have suffered. In that respect, the victim is not removed from the court proceedings, which up to recently featured the State versus the accused, with victims happening to be a side-show.

Being able to address the court and helping them to acknowledge and understand the suffering and long-term effects of a crime, as well as the opportunity to face an accused perpetrator, can be an important part of the rehabilitation of a victim, and of their sense of justice being done. It is also an opportunity for a victim to get across the full enormity of a crime that has been perpetrated against them. That is why, in the past, I have welcomed the introduction of victim impact statements. Unfortunately, however, this Bill does nothing more for victims. The Government has not gone far enough and is rolling out cheap and easy legislation. This Bill is not contentious and does not deal with some of the other aspects that should be addressed. It is being rolled out under the guise of a significant victims' initiative, instead of taking real action to deliver the practical supports that victims of crime require. The Minister did not even properly consult victims' organisations when he put this scheme together. The legislation could have gone further if that had been done.

As regards victim impact evidence, a court is currently only required to take into account the testimony of the direct victim. Likewise, the entitlement to provide a victim impact statement is restricted to the direct victim. There are obvious shortcomings to this approach. In cases where the victim is incapable - due to age, disability or any other reason - of delivering an impact statement, or where the victim has been killed or incapacitated due to the crime that was committed against them, there has been no mechanism to allow some sort of victim impact statement to be made. This means that this part of the legal process is closed off to some victims.

In cases where it is not possible for a victim to make a statement, this Bill allows a member of their family to provide a statement. It also provides that a vulnerable person, such as a young child or a person with a mental disability, can have their impact statement delivered by a family member on their behalf. This is a welcome and positive step towards equality for victims in the judicial system. It would be inappropriate for a victim of crime to be denied the right to contribute fully in the judicial process due to an inability to communicate or any other impediment, particularly if this comes as a direct result of the crime in question. Some victims are too afraid to come into court and give a full account when the accused is sitting there. It is important, therefore, to recognise the need for such a mechanism in these instances. The Bill goes some way towards addressing past shortfalls.

Where any aids are available to convey a victim's sentiments accurately, they should be used. I therefore welcome the relevant sections in this Bill dealing with the provision of assistance to help victims communicate their views fully to the court. In cases where the victim feels vulnerable or for some other reason cannot be present in the court - for example, if somebody is still in hospital - the ability to provide victim impact evidence by video-link without the necessity of being in the courtroom will be valuable in ensuring that the rights, both of the victim and the accused, are satisfactorily upheld. The television link is an effective way to allow a victim, or their representative at the very least, to make a statement in secure and non-intimidating surroundings.

In cases where the victim is deceased, particularly if this is as a result of the offence committed against them, it is the family and loved ones of the victim who suffer the long-term effects of a crime. They are the ones who are left with a sense of loss and injustice, so it is only right that they should be afforded the opportunity to make an impact statement. The lives of the bereaved have been detrimentally affected. Therefore, I welcome the provisions in this Bill that require a court to take into account the effect of an offence on the family members of the deceased. Likewise, in cases where the victim is under 18 or has a mental disorder, the ability of a family member to make a victim statement on their behalf is also a welcome development.

The use of family members to provide evidence throws up some interesting questions as to who is deemed to be entitled to make a statement on behalf of a victim. The Bill defines a "family member" as follows: a spouse or partner of the person; a child, grandchild, parent, grandparent, brother, sister, uncle, aunt, nephew or niece of the person; a person who is acting in place of the parent and has legal responsibilities to the person; a dependant of the person; or any other person whom the court considers to have had a close connection with the person.

The debate on the Civil Partnerships Bill 2009 has given this House an opportunity to discuss the legitimacy of different types of relationship with regard to legal protections and rights. From listening to the debate surrounding that Bill, it is widely accepted among all parties that a consideration of the rights of same-sex and co-habitant couples must be reflected in any legislation regarding family rights. The Bill before us is no different. Many issues were raised with me by concerned constituents who are involved in relationships that were not, are not and will not be recognised under the Civil Partnerships Bill. These included non-sexual co-habitant relationships and those of carers of sick and elderly people.

The Government should provide a more detailed set of guidelines to accompany the Bill before us, outlining fully how these types of relationship will be catered for, and who can be considered by the court to have a close connection with the person, which is the final definition of a "family member". Are the people I have mentioned in various relationships covered by that final definition? If not, we need to amend that section to afford the same rights to people who are in a relationship, but who are not family, as currently constituted in this State. This may be reflected in the Bill, but I would like clarification on the issue.

I take this opportunity to endorse the Irish Council of Civil Liberties recommendation that the legislation be amended to assign clearly responsibility for walking victims or their family through the appropriate impact statement process. This responsibility should be assigned to some part of the justice system, whether the Garda Síochána, someone from the Office of the Director of Public Prosecutions or the Courts Service or the judge's office. This would ensure that families are fully aware of what can or cannot form part of an impact statement, the effect it will have and what exactly it means. Recently, I saw some documents produced by the Courts Service aimed at young children going to court. These documents explain the courts system to them and explain what a person brought before the court can expect. This is welcome.

Recently, I dealt with people who had never had cause to deal with the justice system, either the Garda or a court, who were absolutely fearful of the legal procedure. It is important that we are aware of this when dealing with the legal system, whether victim impact statements or any other aspect of the system. Many people in society fear the system. Therefore, it is vital, particularly for victims who have already suffered, that we walk them through what happens in court. I have been a witness in a number of court cases and have found that procedure is not explained properly to victims or witnesses. They do not understand what is going on around them. Witnesses do not understand they do not have to sit through the whole court case or why they need to sit around for hours on end. This is a job of work that needs to be done. Families and people who will make impact statements in particular must be helped to understand the process fully.

The Bill also empowers the court to restrict the publication of all or part of any impact statement that is made orally. This is vitally important to safeguard against abuse of the victim impact statement facility, which is supposed to be an aid to victims and not meant to be sensationalised by the media. However, that is what has happened on some occasions. Victim impact statements are an aid to the judicial process. The need for this power was evidenced in a speech made by Mr. Justice Paul Carney during an address to the Law Society in which he was somewhat critical of his experience of the process, in particular the way in which it had been exploited by the tabloid press. The Bill should be amended to clarify that the power to restrict publication applies to both impact statements made orally and those made in writing. The restriction should only be imposed in the interest of justice or in the best interest of the victim. It should not be imposed lightly and, therefore, there may be a need to add to the explanation for these restrictions.

I would like to address the proposed changes to the double jeopardy rule. The Bill introduces certain exceptions to the rule where new evidence has come to light or where a person is convicted of an offence against the administration of justice, which offence may have resulted in their original acquittal. The principle of double jeopardy is a valuable principle that has stood the test of time. Everyone is entitled to be protected from repeat trials relating to the same offence. The relentless pursuit, harassment and abuse of innocent people by prosecuting authorities has happened on occasion in this and other jurisdictions. We cannot ignore this and must have a system that protects against it. The shameful case of Frank Shortt in Donegal is evidence of the lengths to which a corrupt Garda can go in a dogged attempt to frame an innocent person. There have been a number of other cases in this and the neighbouring jurisdiction and this should be borne in mind when we start to tamper with the double jeopardy rule.

The double jeopardy rule also incentivises investigating and prosecuting authorities to do their job properly the first time round. It incentivises prosecuting authorities to investigate a crime thoroughly instead of rushing to court with a case which is not fully thought out because of the possibility of catching the criminal later if the case is lost. The offences for which retrial after acquittal is available should be very limited and should only include serious cases such as murder and other offences involving serious violence, including rape. The "new evidence" required to trigger a retrial post acquittal should be limited to the result of forensic tests - new tests - that were unavailable at the time of the initial trial. We now have such tests, such as new DNA tests for evidence that were not available ten or 20 years ago. We should also allow "new witness" evidence that was not available for some reason. For example, a witness could end up in a coma for some years. If the witness than came out of that coma, he or she could provide new evidence, or perhaps somebody who had left the jurisdiction returned or became available to provide evidence. In such cases we could consider whether the evidence that could be provided was substantially different from the original evidence.

As with so many justice legislation proposals emanating from the Government, I am not sure a persuasive case has been made for the necessity of the double jeopardy change or the extent of it or the need to change a system that has worked well. I do not oppose the change, but I would like to tease the issue out further on Committee Stage. In how many cases has new and compelling evidence come to light that would result in conviction? Can the Minister bring forward substantial evidence for the necessity of this change?

Overall, I welcome the Bill. However, we need to be careful with regard to any proposal that undermines the principle of trial by jury. The Bill must be seen in the context of the Criminal Justice (Amendment) Act 2009 which came before it and which purported to deal with gangland crime. Both pieces of legislation can or have eroded the right to trial by jury by removing juries from the outset in certain circumstances and by allowing a judge only court to overrule a jury decision, and possibly order a retrial without a jury. This is permissible under the new 2009 Act. Jury trial is a cornerstone of any democratic criminal justice system and Sinn Féin is opposed to any dilution of this right. I will return to this issue on Committee Stage.

I welcome the Bill, in particular the changes with regard to widening the facility for victim impact statements and the safeguards attached. I urge the Government to use the legislation as an opportunity to introduce a statutory requirement for all criminal justice organisations that interact with victims to reflect the internationally recognised set of victims' rights within their codes of practice, to legislate to ensure appropriate information for victims at various stages of the criminal justice procedure and to ensure availability of a comprehensive spectrum of health and social services and other relevant assistance for victims.

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