Dáil debates

Thursday, 2 March 2017

Criminal Justice (Victims of Crime) Bill 2016: Second Stage (Resumed)


1:20 pm

Photo of Jonathan O'BrienJonathan O'Brien (Cork North Central, Sinn Fein) | Oireachtas source

I welcome the introduction of this Bill. As the Minister of State is aware, we have an obligation to transpose the victims directive into law and in order to do that we will be introducing three items of legislative, one of which is before the House now. Legislation on domestic violence currently before the Seanad is relevant to this also and, in time, that Bill will be dealt with in this House.

The deadline for the transposition of the victims directive was November 2015. While we have not managed to transpose it yet, it is fair to say that a number of steps have been taken in preparation for that, some of which I will outline. We had the directive by the Office of the Director of Public Prosecutions to establish a new communications and victim liaison unit and to implement rights under the victims directive pending the transposition of the directive into Irish law. We also had the establishment of the protective services bureau and the Garda victims services office. We are very quick in opposition to highlight cuts to services so it is important to put on the record that this area has seen increased funding allocated by the Victims of Crime Office to victims support services. We have also seen training and other initiatives being undertaken in preparation for the transposition of this directive into Irish law.

On the issue of training, new recruits in Templemore are required to take a module in training on empathy.

If they fail this, they are not allowed to pass out and they must do this module again. One question to which I have not been able to get an answer, and perhaps the Minister of State can come back to me later today or whenever he can get the answer, is whether this module is being rolled out throughout the force. I know it is being implemented for new recruits, but we have serving members of An Garda Síochána who have been there for a number of years. When they did their training in Templemore, the issue of victims' rights may not have been as important or prevalent as it is today. I do not know how much training has been undertaken by officers who have been there for many years in preparation for the directive being transposed. Perhaps this is something we can look at. I know it is an operational issue for An Garda Síochána.

I have an excellent paper produced by the Irish Human Rights and Equality Commission, IHREC, which I read last night. It highlights some of the potential - I will not stay flaws - inadequacies of the Bill which, in its opinion, need to be addressed as the legislation progresses through the House to ensure the directive is transposed correctly into Irish law. I will touch on a number of points raised.

Section 2 of the Bill includes the definition of the victim, and Deputy O'Callaghan raised an issue in this regard yesterday. The definition as proposed in the Bill is "a natural person who has suffered harm, including physical, mental or emotional harm or economic loss, which was directly caused by an offence". Section 2 also states the term extends to a family member where the death of a victim is caused directly by an offence. While we all welcome the definition, we need to be very careful it is not too restrictive. Recital 19 of the directive states a victim should enjoy that status regardless of whether an offender is identified, apprehended, prosecuted or convicted and regardless of the relationship between the offender and the victim. The IHREC states that to ensure the directive is transposed correctly, we should look at expanding the definition of a victim to ensure there is no doubt an individual may be considered a victim regardless of whether an offender has been identified, apprehended, prosecuted or convicted and regardless of the relationship between the offender and the victim. This is something we need to look at on Committee Stage.

The commission also discusses section 14(2)(d) of the Bill, which lists the personal characteristics of the victim which must be taken into account at the time of the assessment. The IHREC welcomes this approach but it makes some observations on section 14(2)(e) of the Bill, which relates to instances where a crime appears to have been committed with a bias or discriminatory motive. Section 14(2)(e) directly cross-references the list of personal characteristics set out in section 14(2)(d). The IHREC recommends, and asks us as law-makers to examine, an amendment to section 14(2)(e) to clarify the basis of hate crime is not limited to the personal characteristics listed in section 14(2)(d) and may also include other characteristics.

The next section highlighted by the IHREC is section 16, which outlines the special measures which must be implemented in respect of a victim during interviews in the course of an investigation. The section includes provisions to ensure interviews are carried out in suitable premises by persons specially trained for the purposes. In the case of multiple interviews the section states the same officer should carry out the interviews where possible.

In cases of sexual violence, gender-based violence or violence in a close relationship, that is domestic violence, it should be a right for the victim to be interviewed by a person of the same sex as the victim. While the Bill appears to transpose the directive's strict requirements in this regard, it states that such special measures may be implemented in respect of a victim. This should be amended, and "may" should be replaced with "shall" to remove any doubt.

The report also discuss restorative justice. When the Joint Committee on Justice and Equality held its prelegislative scrutiny of the Bill, it contained a section on restorative justice but it has been dropped from the published Bill. I am not sure why this has happened and I ask for clarification from the Minister. Restorative justice is a very important part of the process for victims. Victims want to know why somebody committed a crime against them but questions such as this cannot be addressed through the criminal justice system. We identify offenders, we apprehend them, we prosecute them and, if convicted, send them to jail or impose another penalty. That is often not enough for victims as they want to know why they were victims of a crime and that can be very difficult, especially in cases of sexual violence. They want to know whether they were targeted, if they were being followed by somebody or whether somebody was watching their home before burgling it but these questions are not answered in the course of a criminal investigation. This is where restorative justice comes in. Restorative justice exists within the State but not on a statutory footing and we should look at it. Various models of restorative justice are used throughout the world and research suggests it is very successful. There is research that suggests that, in certain types of offences, restorative justice is not successful, one being sexual and domestic violence, but restorative justice increases the rights of, and answers at least some questions for, victims of all other offences. It is important to address this on Committee Stage. If it was important enough to have a section at the time of prelegislative scrutiny, I am not sure why it has been dropped from the Bill.

In recent years there have been positive developments in victim-sensitive processes in the criminal justice area and this legislation will enhance that. Despite this, however, significant challenges remain, some relating to the under-reporting of crimes and we need to address this. Unfortunately, all the figures show that there is under-reporting of crime, particularly in cases of hate crime. There may be many reasons for this, one of which is the fact that we do not have specific legislation on hate crime. We have to address that and I know the Minister has said she will bring forward something on this issue in due course. One reason given for the under-reporting of hate crime is the perception that the offender will not be detected or the victim may not be believed. We should do everything to encourage victims of crime to report the crime because that is how we can deal with victims' rights and how we can support them. We will also be able to get data on the people engaged in hate crime or domestic violence, where there are also difficulties in reporting for many reasons such as fear, intimidation, uncertainty, the unknown and a feeling they may not be believed in situations where it is their word against that of the perpetrator. It is difficult to say how many cases of hate crime there have been because of its significant under-reporting.

Another area we will address on Committee Stage is the case for a central point of contact for victims and for continuity of support for a person who reports a crime so that, for example, a liaison officer assigned to a victim remains the same throughout the process. This goes beyond the sentencing of an offender. Under the directive, victims will also have rights to information on release dates and on whether somebody has escaped from prison and these things are addressed in the Bill. However, expanding the definition of a victim and restorative justice are issues for us. The latter has an important role in the transposition of the directive into Irish law and I would like it to be addressed on Committee Stage. We will support the legislation, however, and look forward to its passage.

It is important to pass legislation but it is also important to ensure the resources and the necessary supports are put in place afterwards. We could formulate an implementation plan, which is not catered for in the legislation at the moment. Given the fact that we are so far behind schedule in transposing the directive into law, and that a number of initiatives have been taken in the lead-up to the legislation, it is important the process is monitored in the interests of victims and an implementation plan will enable us to do that.


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