John Perry (Sligo-North Leitrim, Fine Gael) | Oireachtas source

I propose to share time with Deputies Connaughton, Stanton and Kyne. On behalf of the Minister, Deputy Shatter, I thank Deputy Halligan for bringing forward the Bill, which seeks to provide for the payment of reparation to victims of offences in respect of medical costs or damage to property at the pre-trial and post-conviction stages.

The programme for Government contains a commitment to enacting legislation to strengthen the rights of victims of crime and their families, to ensure that victims and their needs are at the heart of the justice process and that rights to information, advice and other appropriate assistance are met effectively and efficiently. In this regard, preliminary work is under way in the Department of Justice and Equality on legislation to give effect to the EU victims directive. The purpose of the victims directive is to ensure victims of crime receive appropriate information, support and protection and are able to participate in criminal proceedings. The provisions of the directive are currently being examined with a view to bringing forward comprehensive legislation to deal with victims' rights.

While the Minister appreciates the Deputy's efforts in bringing forward this Private Members' Bill, which aims to make strong provision for victim reparation, he believes acceptance of the Bill would give rise to a number of significant difficulties. His concerns relate to victims' rights, conflict and overlap with existing law and proposed legislation, the rights of accused persons and the practical difficulties the Bill would create for the criminal justice system, especially An Garda Síochána. In addition, the Minister is planning to bring forward a number of improvements on victim compensation in the forthcoming criminal justice (community sanctions) Bill. I will shortly explain these proposed improvements in more detail. The Minister considers that these improvements are more appropriate and will be of better assistance to victims than the provisions of this Bill.

Accordingly, while the Minister supports the broad intention of the Bill, he believes that more considered provisions are required to achieve a fair and balanced reparation process. The Government will therefore be opposing the Bill on Second Stage.

I now propose to state in detail the main reasons the Government is opposing the Bill. First, as regards victims' rights, the Minister is concerned that the Bill's provisions are limited to compensation for medical expenses and replacement or repair of property. No provision is made for compensation for pain and suffering or loss of earnings caused to the victim of an offence. The Minister is also concerned that the provisions of the Bill do not require the consent of the victim to the payment of compensation by an offender. This matter has been the subject of controversy in a number of recent cases where financial compensation offered by an offender was regarded as a mitigating factor by the court at sentencing, even where the victim had indicated that she did not wish to accept the compensation. Such cases have given rise to a perception that offers of compensation can facilitate offenders to buy their way out of imprisonment for offences without due regard to the victim's interests. The Minister believes that this sidelines the victim rather than placing the victim at the heart of the criminal justice process.

The Minister's second concern relates to conflict and overlap with existing law and proposed legislation. Part 3 of the Bill proposes the introduction of a system of post-conviction reparation. However, the Statute Book already contains provisions allowing the courts to make compensation orders against convicted persons. The Criminal Justice Act 1993 gives the courts a statutory power to order a person convicted of an offence to pay compensation to a person who has suffered personal injury or loss resulting from the offence. Section 6 of the 1993 Act provides that a court may, on application or otherwise, make a compensation order against a person convicted of an offence instead of or in addition to dealing with the offender in any other way, unless it sees reason to the contrary. Section 7 provides for payment of compensation to District Court clerks for transmission and attachment of earnings orders. Section 8 provides for the suspension of a compensation order pending an appeal against a conviction. Section 9 provides for the effect of a compensation order on civil proceedings in respect of the injury or loss that gave rise to the compensation order. It is also open to a person who has suffered personal injury or loss resulting from an offence to pursue a civil claim for damages against the offender.

Having carefully examined the provisions of section 15 of the Bill, which proposes that a court would be required to make a post-conviction reparation order when imposing a sentence upon a person who has been convicted of an offence involving personal injury or damage to property, the Minister believes that the section would give rise to a number of difficulties. The provisions overlap and conflict with section 6 of the Criminal Justice Act 1993, which is not proposed to be repealed by the Bill. There is no limit on the monetary amount of reparation that can be ordered, even where the offence is a minor one tried by the District Court. No provision is made for compensation for pain and suffering or loss of earnings caused to the victim of an offence. No provision is made for a case where the offender disputes the amount of the reparation calculated by the Garda Síochána. There is no provision for cases where the victim does not wish to accept reparation. No provision is made on children found to have committed offences or for any linkages with the Children Act 2001. There is no requirement for the means of the offender to be taken into account.

The Minister intends to bring forward some improvements on victim compensation in the forthcoming criminal justice (community sanctions) Bill. In early February, the Government approved the drafting of this Bill, which will replace the Probation of Offenders Act 1907 with modern provisions dealing with community sanctions and the role of the Probation Service in the criminal justice system.

The general scheme of the Bill has been submitted to the Joint Oireachtas Committee on Justice, Defence and Equality for pre-legislative consideration. The Minister proposes to introduce a limited and specific restorative justice approach to District Court proceedings for minor offences. It is intended that it will deal with cases such as minor assaults or minor criminal damage where the offender accepts responsibility for the wrongdoing and offers to make reparation, for example, by paying for medical expenses or repairs to a vehicle or property, and the victim is willing to accept the reparation offered by the offender. Victim consent is essential to any restorative justice process. Restorative justice is meaningless or even harmful without it. Where all of those criteria are satisfied, the District Court can take them into account in deciding whether a discharge order or binding over order, which will be similar to an order under section 1 of the Probation of Offenders Act 1907, would be an appropriate way of dealing with the offender.

As regards section 6 of the Criminal Justice Act 1993, the Minister is of the view that it is necessary to break the link between the payment of compensation and the sentencing of the offender in criminal proceedings, especially for more serious offences. From time to time, issues can arise with sentences imposed in cases where financial compensation offered to the victim by the offender is regarded as a mitigating factor by the court when sentencing the offender. This is particularly inappropriate in cases involving serious offences, where the requirement to impose an appropriate penalty for the crime should not be confused with the court's power separately to award compensation to the victim for personal injury or loss. For that reason, the Minister intends that the Criminal Justice (Community Sanctions) Bill will amend section 6 of the 1993 Act to disconnect the payment of compensation from the matters that the court may take into account when sentencing the offender. The amendment will provide that a compensation order can only be made in addition to any other sanction and not instead of a sanction.

Moving to the rights of persons accused of committing offences, the Minister is concerned that the provisions of the Bill regarding pre-trial compensation could result in unfair penalisation of accused persons who do not plead guilty. Sections 5 and 6 of the Bill provide that a person accused of an offence involving personal injury or damage to property may, not later than 30 days before the trial commences, give notice to the Garda Síochána of his or her intention to make reparation for the cost of medical treatment required by the victim or the replacement or repair of any property required as a result of the offence.

Section 11 provides for recognition by a court at sentencing to the level of pre-trial reparation paid by the offender. Where the offender did not make full or partial reparation before the trial, the court is to be informed of that fact prior to a sentence being imposed. When deciding the sentence to be imposed, the court must have regard to whether full reparation has been paid by the offender and the promptness of such reparation. The Minister is concerned that section 11 would unfairly penalise accused persons who do not indicate at least 30 days before trial that they intend to plead guilty. The accused person may have not paid reparation before the trial because he or she wanted to put forward a defence such as self defence, or challenge the admissibility of evidence. No provision is made for persons with mental illness whose fitness to be tried may have been at issue and could not therefore indicate an intention to plead guilty. In addition, the provision would treat children found to have committed offences in the same way as adults, without providing for any linkages with the Children Act 2001.

As I mentioned earlier in relation to the existing compensation arrangements under the Criminal Justice Act 1993, the Minister would also be concerned that this provision confuses the requirement to impose an appropriate penalty with the court's power to award compensation for personal injury or loss. The Bill makes no provision for a case where the accused person, or indeed the victim, disputes the amount of the pre-trial reparation calculated by the Garda. Also, no provision is made for cases where an accused person who pays pre-trial reparation decides afterwards to plead not guilty and is acquitted at trial or cases where a conviction is overturned on appeal.

Finally, the provisions of the Bill would give rise to a number of significant practical difficulties in its operation, especially for the Garda Síochána and the Probation Service. Section 7 provides that where pre-trial reparation is to be effected by an accused person under section 5 or 6, the Garda Síochána must ascertain the costs of reparation and serve on the person a pre-trial reparation notice which will inform the person of the amount to be paid, the means of payment and the due date for payment. The Minister is of the view that it would be completely inappropriate for the Garda Síochána to have any role in ascertaining the amount of compensation payable to the victim of an offence, particularly in a case where the accused person has not been convicted of the offence. In any event, the quantification of damages and compensation relating to criminal cases is not a function for which the Garda Síochána has the necessary expertise or staff resources.

Section 13 provides that where a person has been convicted of an offence and has not made full reparation before the trial, the judge will be obliged to ask the Garda Síochána to ascertain the costs of making post-conviction reparation to the victim. Section 14 would require the Garda Síochána to ascertain the cost of post-conviction reparation. As with section 7, the Garda should not have any function in relation to determining compensation payable to the victim of an offence. Providing for involvement of the Garda Síochána in determining compensation for victims of offences would place substantial demands on existing Garda resources and would require significant additional resources for such a role to be effectively carried out. That would have implications for Garda staff numbers and costs. Given the existing constraints and demands on Garda resources at present, the Government could not agree to impose additional functions on the Garda which would have a major impact on its capacity to detect and investigate offences.

Section 18 provides that where a post-conviction reparation order is made, but the offender does not pay the reparation in full by the due date for payment, the Probation Service may ask the court to fix a hearing date for the purpose of making an attachment of earnings order. The Minister believes that it would be inappropriate for the Probation Service to have any role in relation to payments under a post-conviction reparation order. The Probation Service has no role in relation to court-ordered payments, such as fines or compensation under section 6 of the 1993 Act. The making of payments under a reparation order is not something that can or should be supervised by the Probation Service.

I thank the Deputy again for bringing the Bill before the House. While the Minister shares his concern to ensure that the rights and needs of victims of offences are a central consideration in the criminal justice process, he cannot agree that the Bill will achieve that aim, in view of the difficulties and issues raised by the provisions of the Bill. It is with regret, therefore, that the Government will not agree that the Bill be read a second time.

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