Thursday, 2 March 2017
Criminal Justice (Victims of Crime) Bill 2016: Second Stage (Resumed)
It is coming as well, is it? It is ten years on.
I have no doubt that budgetary restraints of the past few years have impacted, but I wonder if the Minister of State thinks any institutional changes are needed to improve the flow of legislation, particularly through the justice area. It is an area on which I was spokesperson many years ago, and it is an area of great demand. The volume of work coming from the Law Reform Commission together with the work being done on codification and consolidation of criminal law, all really important and welcome work, adds to the pressures on the legislative capacity of a Department. On that general issue, I would welcome hearing from the Minister of State or the Tánaiste about whether there is a restructuring, an additional support mechanism or a different way of ensuring that legislation does not get bogged down in Parliaments over more than a decade.
As I indicated, I very much welcome this legislation. It aims to implement the victims' directive and it broadly mirrors that directive, although there are, as I said and others have highlighted, some omissions we need to address. I say broadly, and will be touching on some other points later. We have the benefit of a review of the Bill by the Irish Human Rights and Equality Commission. Many of its observations are not to do with its drafting, but rather to do with the way that the Bill is to be implemented. I am thinking of the commission's observations about the need to encourage and support the reporting of crime. That is something we have to reflect on. Specifically, it refers to the reporting of hate crimes and providing assistance to victims of hate crimes. That is a category of crime that we are only now beginning to properly focus on. The commission also says that victims of sexual violence should be interviewed by a person of the same sex. That is a very simple requirement that one would think would be a matter of course in any event. More generally, it emphasises that training is essential for the professionals who are in regular contact with the victims of crime.
There is little or no point in legislating to the highest standards, as we try to do, if there is no effort to properly implement the laws that we pass. In particular, a crime victims' charter is effective only to the extent that it is actually put into practice. We are not great at that. I looked at much of the legislation that we pass ourselves. We spend enormous effort and time crafting good legislation, but making sure that it is implemented in the correct way, that the resources are there, that the training is there and that the cultural shift is put in place in some instances is a much more daunting task.
It is also depressing, if true, that this survey was only published following an instruction from the Policing Authority to senior Garda management to do so. I refer to the figures published in An Garda Síochána's own public attitudes survey. If a public attitude survey is done, it is important we actually see it. The survey involved 6,000 respondents and it showed that more than 40% of those who reported a crime to the gardaí were dissatisfied with the handling of that crime. If that is the case, it is a very worrying statistic. The Garda Assistant Commissioner, Michael O'Sullivan, agreed that some Garda members had, by their manner, alienated members of the public. He insisted that the problem could and would be addressed through training and changing the mindset. We have all spent much time focusing on the delivery of policing in this country and we have all come across minor examples of where a different way of behaving would have had a different result. I know of individual instances where issues were aggravated by a basic lack of courtesy at times and, at others, a lack of a little empathy for people who were victims of crime.
On the Irish Human Rights and Equality Commission's 12 specific recommendations which were put before us, the Minister of State could usefully respond in detail to each of those as we advance, probably more properly on Committee Stage. It makes practical proposals about measures to encourage the reporting of crime and to ensure support services are available to victims who do not make formal complaints, about minimum common inter-agency standards to facilitate consistency of practice, about the necessary resources and guidance to bodies, and so on. In addition, the Victims' Rights Alliance has been in contact and has made useful observations to all of us about this Bill. Two aspects of its submission strike me and I hope the Minister of State is in a position to respond positively to those two observations. I have amendments prepared which I will table to deal with them, if necessary. It points out that Article 8(2) of the directive provides, as the previous speaker said, that the gardaí shall facilitate the referral of victims to victim support services. However, section 6(8) of the Bill merely provides that a member of An Garda Síochána "may, where a victim consents, arrange for the victim to be referred to a service which provides support for victims". There are cases where a lawyer will say that the word "may" in an Act actually means "shall" and vice versabut I do not think this is one of them. The Bill diverges from the directive for no clear or apparent reason, by making referral discretionary rather than mandatory. The Bill would be improved, and I hope the Minister of State will agree, if it was aligned more properly and accurately with the directive in that regard. Specifically, the phrase "may, where a victim consents" should be replaced with "shall, where a victim consents or so requests".
The second point raised by the Victims' Rights Alliance is that it seems to me that there is a gap between the directive's provision about restorative justice and what the Bill contains. As the previous speaker said, the Bill is silent on restorative justice. It was in the pre-legislative scrutiny, so what happened to it? I recognise that we do not have a statutory framework for restorative justice in this jurisdiction and it is important to say the whole concept has been given a bad name on this island, given the way in which the concept of restorative justice was hijacked by some paramilitaries in Northern Ireland and by their political champions. The IRA and Sinn Féin, in particular, at a time when they were boycotting normal or formal policing, were responsible for what could only be described as a grotesque charade that masqueraded as restorative justice. This sometimes involved - we know the individual cases - hauling the victim of the most serious cases, including very serious sexual abuse cases, to face the perpetrators of the crimes against them.
We have heard some of the evidence or testimony in public, and one can imagine how damaging it could be when people, victims of crime, were brought to dark back rooms and, in that menacing environment, were asked to face the people they knew had perpetrated the crime against them. That is not any concept of restorative justice that any of us could decently accept. The great majority of political parties and right-thinking citizens want nothing to do with that concept. Nonetheless we had an ad-hoc, non-statutory restorative justice programme operating on a pilot basis in this jurisdiction. It was run by the Probation Service and involved parties meeting in a supervised setting to discuss the effects of crime on a victim. From my understanding of it, that pilot programme was quite successful.
The EU directive does presume some sort of restorative justice system. Article 4(1)(j) asserts that victims must be informed, on first contact with the gardaí, of the available restorative justice services. Article 12 provides that "Member States shall take measures to safeguard the victim from secondary and repeat victimisation, from intimidation and from retaliation, to be applied when providing any restorative justice services." That is obviously a critical point. It would be a cruelty indeed if the notion of restorative justice was actually to further traumatise the victim and to exacerbate the damage done. That would be wholly and entirely unacceptable. We need to think very carefully about how this system could work, but it is one that has worked well in other jurisdictions.
The Department's own strategic review of penal policy was, as the Minister is aware, published in 2014. It acknowledged that the victim's directive promotes the appropriate use of restorative justice services, which is in line with the existing delivery of such services in this State. That is what it says. In addition, sections 26 and 28 of the Children Act, 2001 invite victims to be involved in a conference convened by a probation and welfare officer. That in and of itself is a form of restorative justice.
In this light, it seems to me mistaken that the right to access information on restorative justice and the right to safeguards on the use of restorative justice are not included in the Bill. Perhaps, in his summation of Second Stage, the Minister might explain why that is the case and whether there is to be a separate set of proposals coming in or other legislative measures to deal with this area. He might say whether it is not advanced, prepared or developed enough or if it is a resource issue. Whatever it is, it is an area in which many in this House have had an interest over time and I would be interested in hearing the official Departmental perspective on it. The failure to include restorative justice safeguards would seem to me to be a breach of our obligations under the victims' directive, as victims are engaged in these services regardless of a lack of statutory provision for such a scheme. As I say, I hope the Minister will respond on these points, specifically to see if we can craft amendments, either from the Opposition benches or from the Government, on these points before we get to Committee Stage.
A final point, raised by the Irish Human Rights and Equality Commission, IHREC, is a practical one. It relates to the need for a workable complaint mechanism involving a single contact point for victims to register a complaint about their treatment in the criminal justice system. A single contact point. This, IHREC points out, would assist in securing greater transparency, greater consistency and foreseeability of treatment in respect of victims of crime. I would be slow to recommend the establishment of victims of crime ombudsman. That does exist in some jurisdictions. It is effective elsewhere but I think we have a plethora now, particularly in the justice area. I would again be interested in hearing the views of the Minister in respect of where we could site such a contact point. Perhaps a one-stop shop could be developed under the auspices of GSOC or some other existing institution that might be expanded to include this one-stop contact point envisaged by the Human Rights and Equality Commission. Its point on this is very fair. It would also deal with consistency of treatment, which is really very important for us. We must learn consistently from the experiences of individual victims of crime.
I am advised that the success of the Federal Ombudsman for Victims of Crime in Canada, for example, illustrates the effectiveness of a formal model of this kind. Without such support victims may be left with no option other than to bring their complaint to a court, which is of no benefit to either the victim or the State if there is an alternative way of dealing with it.
These are the points I wanted to raise. I welcome the Bill and its arrival in the House. I look forward to hearing what the Minister has to say at the conclusion of Second Stage. As I say, on the points I have raised, I will table amendments to address what I regard as either lacunae in the Bill as published or improvements that could be made.