Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

Deputy Jack Chambers will be taking five minutes and I will be taking 15.

Fianna Fáil will be supporting this legislation, although we will be making some proposals which we think could improve it.

Historically, the criminal justice system in Ireland, and indeed, throughout the world, did not take into account the concerns or interests of victims. Traditionally, the criminal justice system was about one question only, namely, the ascertainment of the guilt or innocent of an accused person before the court. When a crime was committed, a complaint would be made by a victim to An Garda Síochána or sometimes gardaí would investigate without a complaint being made in circumstances where, for example, there was an obvious crime such as a murder. After that, An Garda Síochána, which has considerable powers, would commence an investigation. Gardaí could arrest persons or access and seize property. They would then put together a file and this would be sent to the Office of the Director of Public Prosecutions. The latter would then make a decision as to whether a prosecution could take place. Throughout that process, what would occur was the victim would simply be interviewed by the Garda and provide a statement. That statement would then be part of the evidence that would go in the file from the Garda to the Director of Public Prosecutions and the latter would make the decision as to whether to prosecute.

The Office of the Director of Public Prosecutions is an extremely important office. It is important but it is also controversial. The reason it is controversial is that many victims of crime in this country question why decisions have not been made to prosecute individuals for crimes that complaints have been made about. The Office of the Director of Public Prosecutions has a difficult task. On one hand, it would be untenable for the office to bring a case in circumstances where there is insufficient evidence to get that case before a jury. On the other, the Director of Public Prosecutions has a responsibility to ensure that if there is evidence of a reasonable complaint against an individual, that should be put before a court and a jury to determine the guilt or innocence of the accused. However, it is in that particular circumstance, where a decision is made to prosecute or not to prosecute, that many citizens feel that they have been denied justice. That is the way the criminal justice system has proceeded historically, with the victim playing a very limited role in it.

Since probably the mid-1990s, the law has been gradually changing to take into account the circumstances of victims of crime. It is welcome that the trend started back in the 1990s and that it is continuing today. The publication of this legislation is the high mark of all victims legislation that we have had in this country to date.

In considering the circumstances of victims of crime, we need to recognise that there are two strands ongoing when the criminal justice process is in operation. The first is the important strand that seeks to determine whether an individual is innocent or guilty of a stated offence. We must not forget that the accused before a criminal trial has rights, particularly that of being presumed innocent until proven guilty. However, there is another strand and this involves the victim. Unfortunately, under our criminal justice system, that strand has lagged behind the first strand for far too long.

As stated, the law began to change in the 1990s. The first item of legislation that took into account the circumstance of victims was probably Criminal Evidence Act 1992. That Act made it easier for witnesses to give evidence in physical or sexual abuse cases by allowing for a live television link with the court. It also made it easier for children to give evidence in court. After that, the Criminal Justice Act 1993 required a court to consider the effect of a violent or sexual offence on a victim when it is deciding the sentence. That victim impact statement has become a central part of the criminal justice system. It is an extremely valuable part of the criminal justice system in order to assist a court in determining the nature of a sentence that should be imposed on a person who has been found guilty of an offence.

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It is something that is used widely in the courts and which should continue to be used because it is the opportunity for the victim to speak in court and to let the adjudicative body know the impact the crime had upon the victim.

It is also worth noting that in respect of that legislation in 1993, the Director of Public Prosecutions was given the entitlement to appeal sentences which were too lenient. That is another right that is to the benefit of victims who believe that they have gone through a lengthy criminal justice, undergone the difficulty of giving evidence and being challenged on their evidence, the accused has been found guilty and then a lenient sentence is imposed. There is that opportunity, therefore, for the DPP to appeal a sentence under the 1993 Act.

The Civil Legal Aid Act 1995 allowed the Legal Aid Board to provide legal aid or advice to a complainant in certain criminal cases involving prosecution for a range of sexual offences, including rape. It is highly important that complainants in criminal cases such as rape are given the support of the State to ensure their legal rights and obligations are protected should they have to give evidence before the court. The Domestic Violence Act 1996 provided protection where there is a violent family member and allows for the imposition of a safety order or a barring order. That is also to the benefit of victims of crime. The Bail Act 1997 allowed a court to refuse bail to a person if it is likely that the person may commit another serious offence while on bail.

It is important to note that in 2010, the then Minister for Justice and Law Reform, Dermot Ahern, launched a new charter outlining rights and entitlements for victims of crime, namely, the Victims Charter and Guide to the Criminal Justice System. That set out in an accessible way the range of support services and help lines available to the public, and it placed victims at the centre of the justice system. It gave definitive commitments to the victim of crime on behalf of a voluntary sector organisation, the Crime Victims Helpline, and it involved eight other criminal justice agencies such as the Director of Public Prosecutions and An Garda Síochána. It also gave clear contact points in each organisation if it did not live up to the expectations of the victim.

That victims charter and guide that was published in 2010 was developed in consultation with the criminal justice agencies and, as a result, there were very obvious and beneficial modernisations in the criminal justice system. For instance, we know that the Garda now has gay liaison officers. That is as a result of the charter introduced in 2010. We know the Garda now monitors racial incidents and has ethnic liaison officers. That is also as a result of the charter introduced in 2010.

It is important to note that the law and society have been changing over the past 30 years or so to take into account the interests of victims.

Among the many findings of the Garda Inspectorate report on crime investigation of 2014 was that of an inconsistent approach to updating victims of crime on the investigations that were ongoing. As the Tánaiste will be aware, Members debated here previously the O'Higgins report into certain events in the Cavan-Monaghan Garda district. What stood out from that report was that there were many examples of complaints that had been made by citizens to An Garda Síochána about offences that had been committed against them. It was disappointing, to say the least, that so many of those complaints were not thoroughly investigated. It was disappointing that so many of those complainants were not treated adequately by this State in having their complaints adequately investigated. A person who is a victim of crime and who makes a complaint to An Garda Síochána in the State has an entitlement to believe that crime will be adequately investigated. Such people have an entitlement to believe they will be updated as to how that investigation is ongoing and they have an entitlement to be told the current status of the potential prosecution. I am pleased to note that will be provided for in the legislation being brought through the House.

It is noteworthy that in the Garda Inspectorate report of 2014, there was a section entitled "Putting Victims at the Heart of the Garda Service". It is important to acknowledge that An Garda Síochána has accepted the findings of the Garda Inspectorate in respect of victims and efforts are being made by An Garda Síochána to ensure that victims are treated in a more humane, proper and thorough way than was the case in the past.

Other areas which may improve the welfare of victims but which are not included in the legislation are proposals that Fianna Fáil previously advanced concerning issues such as a victims surcharge. It may not be a matter for this legislation but it is appropriate that in the future we should consider whether there should be a financial demand upon a person convicted of a criminal offence against a victim so that that financial demand can be put in a fund for the benefit of that victim and the benefit of other victims of crime.

What is clearly happening in the criminal justice system is that we are moving away from the old Victorian assessment whereby a person is prosecuted, convicted and then sentenced for their crime and that the only function of the State in the whole process is to punish and investigate the role played by the perpetrator. We must do more as a society for the victims of crime because of the harrowing impact crimes can have upon persons who are subjected to criminal attack.

The reason this legislation is being introduced is because of EU Directive 2012/29/EU passed by the European Union in 2012. The legislation we are considering has to transpose into Irish law the terms of that directive.

Before handing over to Deputy Jack Chambers I want to outline seven points I ask the Tánaiste to consider, and those of us on the committee on justice and equality will consider them by way of amendments should it be felt necessary to put them down.

The first point is in respect of the definition of "victim". I note the Tánaiste stated the objective is to keep the definition as broad as possible. I agree with that approach. I would be slightly concerned, however, that it does refer to the fact that the person must have suffered loss directly caused by an offence. We must be absolutely sure that does not mean that there has to be an offence established in law before the individual can be considered as a victim.

The second point is that under section 3 of the legislation, a family member can be nominated to be the point of contact with An Garda Síochána where there has been a death of a victim. Unfortunately, it has been the case in this country and others that family members sometimes can be responsible for the death of another family member. We need to ensure a family member who is a suspect does not become that point of contact or does not have access to information that could assist him or her in finding out about or interfering in the Garda investigation. Obviously, the intention of the legislation is not to permit that but we must be sure there is a mechanism whereby the Garda can deal with such a situation should it arise.

The third point is that section 6(8) states that the Garda may arrange for the victim to be referred to a service which provides support for victims. I refer to that because Article 8.2 of the victims directive provides that the member state "shall facilitate the referral of victims, by the competent authority ... to victim support services". Consequently, we believe that that subsection should be amended to make it mandatory as opposed to making it discretionary.

The fourth point is that there is no reference in the legislation to the question of restorative justice and safeguards that should be introduced when restorative justice is being considered. It is instructive to note that reference to restorative justice was included in the scheme of the Bill when it was published. However, it seems to have vanished from the Bill. It is noteworthy that Article 4(1)(j) of the directive asserts that victims must be informed of the available restorative justice services and Article 12 provides that member states "shall take measures to safeguard the victim from secondary and repeat victimization ... to be applied when providing any restorative justice services". We need to look at that again as to the reason restorative justice is missing from the Bill.

The fifth point is that section 8 deals with decisions regarding prosecutions of offences. This is an extremely contentious issue and it provides for a review. I welcome that but we must ensure that such a review which is provided by the Director of Public Prosecutions for the family is protected from any defamation action that could be made.

We need to regard it as being privileged under the Defamation Act.

Section 14 requires the Garda to conduct an assessment of a victim. I am concerned that every victim of a crime, including somebody whose mobile phone has been stolen, will be entitled to have an assessment carried out as this could clog up An Garda Síochána. Therefore, we need to look at this provision carefully.

Section 30 is to be welcomed. If the prosecuting authorities and the Garda do not comply with this statute, there must be some mechanism whereby they will be held to account. It is welcome that they cannot be sued or that there cannot be a damages claim for a breach of its provisions, but we need to take into account what the consequence will be if State agencies do not comply with the legislation.

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