Damien English (Meath West, Fine Gael)

This Bill and its provisions are, in large part, welcome. However, it must be highlighted that in 2008 Deputies Shatter and Flanagan published their Victims' Rights Bill to give victims of crime comprehensive statutory rights under Irish law; unfortunately, it did not receive the support of Government at that time. The current Bill is a useful first step in providing recognition for victims but it does not fully reflect the comprehensive nature of Fine Gael's proposals, which is disappointing.

I welcome in particular the proposed changes to the law on victim impact statements and the extension of the category of persons entitled to deliver same. As stated by Ms Justice Macken, such statements can be of assistance to the sentencing judge in determining the appropriate sentence to be imposed and it affords the family or friends of the deceased victim an opportunity to express their loss. However, we must be careful about tilting the scales of justice too far in favour of the victim. It is well established in Irish constitutional law that in the event of a conflict between the public right to have crimes effectively prosecuted and the accused's right to trial in due process, the latter must always take precedent. The same must also apply in any conflict between the rights of the accused and the rights or interests of victims.

Care must be taken to ensure that the section is applied for its proper purpose. The victim impact statement it is not intended as an opportunity for adducing further evidence or suggesting that the accused is guilty of a more serious offence than that of which he or she has been convicted. This point was made clearly by the Court of Criminal Appeal in Director of Public Prosecutions v. O'Donoghue, a case in which we all took a great interest and from which we learned a lot. In this case the judge stated that when a family member is giving a victim impact statement, a copy of the statement must be provided to the sentencing judge and the legal representative of the accused. The court stated that this should be done before the reading so it can be checked for anything untoward. The judge further highlighted that the person making the statement should be warned by the sentencing judge that if in the course of making the statement he or she departs in any material way from the content as submitted, he or she may be liable to be found in contempt of court.

I recommend that these guidelines presented in the O'Donoghue case be enacted in this legislation. It is important that people are aware that the purpose of the victim impact statement is not to place unfounded or unproven allegations in the public domain. As stated by the Irish Council for Civil Liberties, the protection of victims' rights does not and should not require a corresponding diminution of the rights of the accused.

I welcome section 5 of the Bill, which allows children, persons with a metal disorder or any other person with the leave of the court to give victim impact statements by means of a live television link. I also welcome the provision in section 5A(1)(B) that neither the judge nor counsel is to wear a wig or gown when a child or person with a mental disorder is giving his or her victim impact statement by video link. This was a recommendation of the Children's Rights Alliance and it allows for a more child-friendly environment. It is important that we listen to the views of the Children's Rights Alliance, because it knows best. Sometimes the justice system, and certainly the courts system, can be off-putting to people who are not confident and are perhaps not of an age to be able to understand all the proceedings.

The court may direct that where the victim impact statement is to be given by a child or person with a mental disorder via a live television link, any question to be put to the victim be put through an intermediary. This will be less traumatic for the child and is thus to be welcomed. The recommendations of the second report of the Joint Committee on the Constitutional Amendment on Children proposed that all lawyers involved in the prosecution or defence of cases of child sexual abuse or sexual offences against children and all judges hearing such cases should be required to undergo a specialist program of training to enable them to perform their functions in a manner that is least traumatic for child complainants and witnesses. It further recommends the development of a child witness support service.

We should listen to that committee, which has done much work. There is no point in not considering its views. If the Government is to fully protect and vindicate the rights of children in Ireland, such proposals need to be implemented. A referendum needs to be called as a matter of priority to allow for the rewording of Article 42 of the Constitution to allow our children to be treated as individual citizens with stand-alone rights. The rights of children in Ireland must be given paramount importance. I call on the Cabinet to support the calling of a referendum as matter of urgency.

The Government further needs to examine whether appropriate changes to the Constitution need to be made to allow for the collection and exchange by relevant authorities of soft information with regard to employees and volunteers whose work entails substantial unsupervised access to children and vulnerable adults. There have been numerous calls for the expansion of our vetting system to include soft information in order to create a comprehensive system. Indeed, the Children's Rights Alliance supports the introduction of a comprehensive child protection system that incorporates the use of soft information within its vetting process.

We as a nation have failed our children in the past. This Bill will help to alleviate some of the pain a child endures during a court hearing. This is welcomed, but we need to decrease the number of children who become victims in the first place. Instead of concentrating on drafting measures to ensure the courtroom process is child-friendly, we need to concentrate on measures to ensure the number of child victims is minimised.

In my time on the Joint Committee on Education and Science a number of years ago, we discussed the issue of soft information and it was generally felt this was something we should consider. It is a delicate matter and may be seen as encroaching on people's rights, but there is justification in many cases for the passing of information among the authorities and the various officials in the community. We encouraged the various groups and stakeholders to meet on a regular basis; that would be an ideal opportunity for soft information to pass from hand to hand.

A person came to me recently with informal information about an act committed by another person who is now working with young people. There have been no legal proceedings on the basis of the alleged act because it was supposed to have taken place 19 or 20 years ago. This person is in a difficult position and does not know how to get that information into the right hands. The person cannot instigate a criminal investigation because the act was not perpetrated on him or her. Thus, there is no place to go with the information. Yet the person in question can continue working with children. There are many more cases such as this. The Garda does an excellent job in keeping an eye on certain people about whom it has suspicions, even without having received direct information. It does a good job in terms of profiling and keeping an eye on things. This is workable and useful in small towns and villages but it is quite difficult in large cities.

Part 3 of the Bill sets limitations on the rules on double jeopardy. The proposals in the Bill mirror quite closely the laws enacted in the UK. In that jurisdiction, a law allowing for retrial where there has been a conviction for interference with the administration of justice in the relevant case was enacted in 1996. In 2003, the UK enacted the Criminal Justice Act, which allows for retrial where new and compelling evidence comes to light. Hence we are, as usual, falling behind, although I acknowledge the Minister's efforts to introduce legislation with reasonable urgency.

I am hopeful that these measures will allow for the arrest of more gangland criminals. Every other week we hear of shootings taking place on the streets and in our neighbourhoods. We have been losing the fight against such crimes for some considerable time. Why are we only now debating the introduction of such amendments to our laws? Is it because we have a relatively new Minister with clear aims and intentions in this area? We have had other Ministers - particularly former Deputy Michael McDowell - who promised to deal with crime. Mr. McDowell said that gangland crime was "the sting of a dying wasp". He had all the answers. Yet, with many of the Bills he brought through the House, he would not listen to any ideas or proposed changes. He drove many Bills through the House which, he claimed, would solve the problem. That former Minister has a long record of legislation to his name but not a long record of results.

I hope this Minister will not fall into the same trap. I listened to him recently giving a run-down of all the work he has been doing, but he will be judged on the results on the streets. Gangland crime is something we really need to tackle and this Bill is a step in the right direction. People are afraid out there. We are all afraid that the gangland crimes familiar in certain areas will spread to more towns and villages, because we have suspicions that many of the members of criminal gangs are moving to new towns. We have a duty to try to nip this in the bud.

Not a week goes by when we do not hear about some kind of shooting. Apart from enacting new laws, in order to tackle gangland crime, we must match the resources of the criminals. Some of these people make more money in a weekend from drugs than we spend in a whole year tackling the drugs problem. There is a serious gap between their spending power and our spending power. They end up with the best technology and equipment and the best cars in town. Our gardaí will always be trailing behind in terms of equipment due to difficulties with resources. I accept that, but we must strive to give the Garda what it needs to take on these gangs. It is not just new legislation as there should be new equipment and more resources put in place. I accept that money has been put into certain areas in this country but that is not enough. Serious amounts of money are being made through gangland criminal activity and we will be way behind unless we can try to match it somehow with resources.

The prohibition encapsulated within the double jeopardy principle has a strong history going back in some accounts to biblical and classical years. St. Jerome, writing towards the end of the fourth century AD, is usually credited with the statement that "even God himself does not punish twice" for the same offence. In more recent times a number of justifications have routinely been offered for the prohibition of repeated prosecutions.

These justifications include the fact that a retrial may result in a further financial burden. Whereas the burden of legal costs is eliminated where legal aid is available, an acquitted person may suffer other financial burdens such as the disruption of normal employment or business. A retrial will inevitably involve delay in the final determination of the charge. It might be anticipated that delays could have a severe psychological impact on many acquitted persons, particularly if there is a possibility of the acquittal being quashed and a retrial ordered. Furthermore, the State with all its resources should not be permitted to pursue a person with criminal charges indefinitely, as this may lead to an innocent person being convicted.

We must tread carefully. I understand that the purpose is to nail certain people and gain good evidence. In the process, innocent people could be unlucky enough to face a retrial and we have a duty to leave as little disruption to people's lives as possible. We have to assume people are innocent until proven guilty.

We have a responsibility to offset some of the justifications for a strict application of the double jeopardy rule. To counteract these justifications, it is prudent that the State should consider free legal aid in all retrials under Part 3 of this Bill, irrespective of the financial resources of the defendant. I would like to hear the Minister's opinion on this and I am not saying that I am right, although there might be a case for considering the matter.

Delay in such retrials should be kept to a minimum; this will reduce the negative psychological impact on the defendant. It is also submitted that the defendant should have the option of acquiring the services of a psychologist at the expense of the State during the interim of being told that he or she will be retried and the retrial itself.

This is important for several reasons for a person who thought he or she was free but who will have to face trial again. It is important we ensure the system is efficient. By imposing restrictions, the process might be achieved more quickly and the issue could be dealt with quickly. We all know that it is more beneficial to punish crime quickly rather than leave the process drag on. If a person is young, in particular, an extended period between the crime and punishment can be detrimental or reduce the effect. The more quickly justice is applied, the better, and if retrials result in massive delays, they should take priority where possible.

Although protection against double jeopardy is clearly identifiable in Irish case law, certain limitations already exist. For example, in Considine v. Shannon regional Fisheries Board the Supreme Court refused to invalidate a statutory provision which permitted an appeal to the Circuit Court against an acquittal on the merits or otherwise of the District Court. The court seemed clearly of the view that whereas protection against double jeopardy was well established in Irish law, statutory exceptions were permissible provided they were expressed in clear terms. It can be argued that prosecution appeals against lenient sentences could also be regarded as double jeopardy.

As stated, the changes in law introduced by Part 3 are welcomed but one must be careful that the changes in law relating to double jeopardy are not used as measures to negate our responsibility to have a fully fledged and equipped Garda service. Due to budget cuts and reform in 2009, as well as fears that the tax system would change, many experienced gardaí retired, taking knowledge and expertise that cannot be replaced overnight. At this point how close are we to having 15,000 gardaí, as was promised under the programme for Government? An accused person's right to trial in due process cannot be undermined due the Government's failure to provide sufficient resources and funding.

I have a problem with the number of gardaí doing what I would regard as civilian duties. There have been numerous commitments and promises made over the years to try to put as many people on the beat carrying out real Garda work, as long as they could be replaced by civilians doing some of the paperwork. It is important that such work gets done but do we really need fully trained gardaí doing it?

We have failed in this respect and the problem must be addressed, particularly as there are so many people who are unemployed and looking for work. We should find some way to slot people into the system who might not be trained gardaí but who may take on some of the more mundane duties. This would free Garda time and resources so real problems can be tackled.

The Minister might be able to inform me in his reply or at a later date on how we are progressing in bringing people into the Garda force who may not have gone through the system of being trained as a garda. People may have a degree in criminology, for example, or be an expert in forensics. It still seems difficult, if not impossible for those people to be employed without becoming a garda first. We discussed a Bill in the past which made allowances for this to change, and it would have allowed people with expertise to be given a job. Is that happening?

People have come to see me with different qualifications who would like to be part of the Garda force but could not afford to train as a garda. Others felt they should not have to start at the bottom of the ladder when their qualifications could be of great use in activities such as collecting or analysing evidence. There is much talent in the country that could be used by the Garda if the system changed. I stand to be corrected on this as there does not seem to be much progress in the area. It may not be appropriate to this Bill but the Minister could give a statement on it at some stage.

Part 3 allows for reactive measures to be taken on witness intimidation. This is welcome but it is not sufficient. In 2007, Fine Gael proposed the establishment of a special witness protection unit, a witness protection hotline and draft guidelines for the Garda Síochána on how to use the programme. I also note that the Labour Party called for the scheme to be put on a statutory footing but the Government has paid no heed to our calls.

This is very disappointing, especially when one considers the criticisms of our present witness protection scheme. Mr. Justice McCracken has stated:

Undoubtedly the witness protection programme was badly thought out and almost developed a life of its own. One of the most worrying features is that there never seems to have actually been a programme. Instead the system remained "fluid" with no clear guidelines with witnesses increasing their demands under the programme when their time to give evidence arrived.

I listened recently to a programme I would not normally listen to. On it a person was discussing life as a protected witness, or rather the lack of life. I accept Ireland is a very small country and it is hard to tackle the issue but the person has 24-hour Garda protection and cover. It is a serious invasion of privacy and intrusion into one's life. As we have seen in the past, the programme does not always guarantee safety. The Bill attempts to address the issue but a proper witness protection is required.

One could argue that there is an absence of comprehensive data on both the extent or circumstances of witness intimidation in Ireland but according to Mr. Michael Murray, the Limerick State prosecutor, one in ten criminal cases cannot be successfully prosecuted in Limerick due to intimidation. This is significant, especially when anecdotal evidence shows that the proportion is probably greater.

Studies in Britain by the Home Office have considered levels of witness intimidation and according to the analysis in the 1998 British crime survey, the level is much higher than Mr. Murray's indication. If we are to accept the relevance of the analysis of the 1998 British crime survey to this jurisdiction, then we are accepting that up to one in four crimes is not reported due to intimidation and that almost one in ten reported result in overt intimidation.

Action needs to be taken to counteract acts of interference with the administration of justice. Again, this Bill allows for reactive actions to be taken to findings of interference but we need to be proactive and reliance on the provisions in this Bill relating to double jeopardy need to be minimal. The introduction of a statutory witness protection scheme is in line with the recommendations of the US Justice Department, which has stated that a formal structure is important in order to achieve the benefits of inter-agency co-operation and efficient use of resources.

The National Institute of Justice provides five reasons for a highly structured and formal approach to witness protection but I will not go into them now because my time is nearly up. I accept we live in a very small country and it is hard to operate a proper witness protection scheme but we must try to make some serious advances on the issue.

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