Thursday, 2 March 2017
Criminal Justice (Victims of Crime) Bill 2016: Second Stage (Resumed)
I commend and congratulate the Minister of State, Deputy David Stanton, on the historic announcement yesterday regarding the recognition of ethnicity for our Traveller community. I note that, as the Taoiseach stressed in his speech, it does not have implications in terms of constitutional rights, other rights to resources and so on. I hope that the spirit of what was achieved yesterday will ensure that the necessary resources in terms of housing, education, training and so on are provided. That would be the measure of the announcement. The career of the Minister of State encompasses the same period as mine. It is good to see a very positive step forward.
I would also like to thank the Oireachtas library and research service for its excellent briefing on this Bill and my colleagues who helped me. I am delighted to have the opportunity to speak briefly on the Bill. It is long overdue and is required in order to transpose EU Directive 2012/29/EU. It will replace Council Framework Decision 2001/220/JHA and amend the Criminal Evidence Act 1998, the Criminal Justice Act 1993 and the Courts Service Act 1998.
The Bill is approximately 16 months overdue. It is interesting to note that 11 member states have been reprimanded for lengthy delays in moving on the required legislation.
Victims will finally now have legally enforceable rights, which is the core of what we are discussing today. Maria McDonald of the Victims’ Rights Alliance said:
[F]or the first time victims will have rights and for the first time they will be able to go to court to protect those rights. We’ve had a Victim's Charter in this country since 2010 but it [had] no legal force. This [now] has legal force.
I also recall the former General Secretary of the Association of Garda Sergeants and Inspectors and former presidential candidate, Mr. Derek Nally, who deserves a mention for all the work he, his friends and colleagues, including many other members of An Garda Síochána, undertook to provide for victims of crime. He founded the Federation for Victim Assistance in 2005 along with Ms Mairead Fernane. Many other organisations have long done, and continue to do, great support and advocacy work for victims including One in Four, the Rape Crisis Centre, Women’s Aid and Support after Homicide. The Victims of Crime Office has received small increases in funding over the past couple of years with an additional €250,000 announced in budget 2017, which is welcome, but approximately 50 organisations are to receive funding from the total that is available, meaning it is spread thinly. Likewise, the National Office for the Prevention of Domestic, Sexual and Gender-based Violence, COSC, also received additional modest increases in funding.
Part 2 of this comprehensive Bill relates to information. This was a key concern for Deputies over the years. It is hoped that this will begin to address the worrying inconsistencies and failings of the system and An Garda Síochána in providing timely information to victims. The 2014 report by the Garda Inspectorate raised the kind of issues that we would have heard repeatedly over the years, including victims finding it difficult to contact the investigating garda due to changing shifts. Victims would ring a Garda station to find the investigating garda was not available and no one else was able to help them. Calls were not returned and appointments were not kept. People were not aware of the PULSE number that was allocated to an alleged crime. On many occasions there was no follow-up contact and victims sometimes learned of the outcome of their case in the courts section of the local newspaper. These are the kind of information concerns that we all would have had to grapple with down through the years. It certainly seems, therefore, common sense that information about where to get support, the status of an investigation or court case, reasons not to prosecute and outcomes of court cases would naturally be offered and provided to victims of crime. As I stated, unfortunately the performance in the past has varied greatly throughout the country and victims have often felt desperately frustrated.
Victims’ satisfaction on how gardaí are engaging with them often differs depending on the type of crime involved with those who are victims of heinous crimes such as domestic violence and sexual assault sadly reporting lower levels of satisfaction than those who are victims of burglaries for example. When discussing the Criminal Law (Sexual Offences) Bill recently, our colleague, Deputy Shortall, called for the provision in that Bill for those under 18 years of age to give evidence from behind a screen to be extended to everyone. I welcome such provisions in section 14 of the Bill before us today. This allows for the identification of special protection needs and special measures to be extended to certain victims. Given the clear evidence of serious intimidation of witnesses and victims in the past, section 19, which provides for the exclusion of the public at the discretion of the court, is also a valuable step forward.
Most important, we now have a statutory definition of the word "victim" and a Bill that gives rights to victims, including rights to information, support and protection. For these reasons, I welcome the Bill. A victim is defined as "a natural person who has suffered harm, including physical, mental or emotional harm or economic loss, which was directly caused by an offence" and it will also extend to a family member should the victim have died because of the offence, except where the family member concerned may be implicated in the cause of death. The Irish Human Rights and Equality Commission, IHREC, in its review of the legislation recommended that the definition of victim should be expanded to be fully in line with the directive so that "an individual may be considered a victim regardless of whether an offender is identified, apprehended, prosecuted or convicted and regardless of the relationship between the offender and the victim".
Over the years, I have been contacted by many victims of crime who felt let down badly by the system. They faced problems with lack of information, communication with the investigating garda and feedback. Long periods of time have often ensued between forensic and other investigations by An Garda Síochána and any information on the conclusion of the investigation. Constituents have also raised grave concerns around the decisions of the DPP, particularly when the decision was not to prosecute. All of these demonstrate why the Bill is so badly needed but they also reinforce the need for improved training and resources. It is interesting that training and the additional resources it is hoped that the Minister of State will provide were raised repeatedly in the earlier debate. Perhaps this could be addressed in the amendments on Committee Stage.
I welcome section 27 which provides for the right to make a victim impact statement by amending section 5 of the Criminal Justice Act 1993. Victims' voices are the most important in appropriately dealing with crimes and deciding on outcomes. Section 6(1) provides for the information to be given to victims upon first contact with An Garda Síochána or GSOC. Section 6(1)(e) notes that it will include information on "the role of the victim in the criminal justice process". As we know, Ireland has an adversarial criminal justice process meaning that the main role of the victim was historically regarded as prosecution’s witness because the State takes the case if a decision is made to prosecute. Section 6(3)(a) states that information should be provided "as soon as practicable" but the Minister might consider changing the wording on Committee Stage to something such as "without unnecessary delay", as was recommended by the Rape Crisis Network Ireland in its observations on the Bill.
Another important point is one made by IHREC about the various agencies victims will be liaising with throughout the process. IHREC recommends that there should be a minimum standard set regarding the manner and timeframe around communication with victims to ensure consistency across agencies. In recent years, we have noticed the lengthy periods during which crimes are investigated and go through the court process. I was reviewing statistics on the criminal courts in other jurisdictions such as the Ministry of Justice's statistics bulletin for England and Wales. It appears to be a much faster process in many cases than our system. I am obviously moving beyond the territory of this Bill, but this is something that frustrates victims greatly. Justice delayed is justice denied. This year, we will often read about decisions made on crimes that took place in 2015 or earlier. It seems to be an endemic feature of our legal system that justice is so slow and cumbersome and we need to address it. Many people have noted that civil law jurisdictions, in particular, seem to have a much faster process of carrying out an investigation and proceeding through their court systems. These are bigger questions about how to proceed in the future. It is often said, for example, that we did not really change our legal system at all in 1916 or 1922 and that all of those who were in the British system before 1916 just morphed into the Free State system afterwards, with all its old English traditions. Whereas the English court system may have been greatly modernised in many respects, our own system still has a lot of cumbersome and slow features, which frustrates victims. I know that goes beyond this Bill, but perhaps we need to deal with it.
Section 7(2)(c) provides for information to be given to victims if a decision is reached "not to proceed with, or to discontinue, the investigation" and section 2(d)(ii) provides for the victim’s right to review such a decision.
The concept of reviewing a decision by the Director of Public Prosecutions addresses another element of the dissatisfaction frequently felt by victims.
The Garda Síochána Ombudsman Commission, GSOC, is another agency which may be involved and may run the investigation given that victims may contact GSOC first. Following the wide-ranging debate in the House last week on the establishment of a tribunal of inquiry into protected disclosures, we must review and strengthen the independent and investigative roles of GSOC, the Garda Inspectorate and the Policing Authority.
While the Bill states no funding is required, increased resources will need to be made available to all agencies involved in the proper execution of the rights bestowed on victims by the Bill. There is no point inserting in legislation phrases that sound great and in that connection I refer again to the step forward we made in the House last night. Victims' rights must be backed up with necessary supports, including upgrading information technology infrastructure for the Garda and Courts Service. Many complaints have been made regarding the flow of information between the PULSE system, the Road Safety Authority and the national vehicle driver file in respect of fatal road traffic accidents. Substantial resources are required in this area. In October 2016, the Victims Rights Alliance and Irish Council for Civil Liberties, ICCL, began the process of identifying additional training that will be required for lawyers for the implementation of this directive. I welcome news that the European Commission is funding this project, which will also include other jurisdictions in the European Union.
Why will legally enforceable rights only be applied to criminal proceedings that begin after commencement of the Bill? Given the length of time involved in many criminal proceedings, surely most aspects of the Bill could be applied immediately upon commencement.
The Rape Crisis Network Ireland recommends that a victims ombudsman's office be established to ensure all the Bill's provisions are adhered to. A previous speaker referred to the plethora of bodies we have in the justice area. Perhaps the victims ombudsman function could be performed by one or other of the existing agencies.
The Irish Human Rights and Equality Commission, IHREC, cited a worrying statistic which highlights that Ireland is letting down victims of crime, particularly those most at risk of repeat victimisation. Deputy Ruth Coppinger raised this issue in connection with serious sexual assault cases, domestic violence in all its forms and people who have left home because their lives have been threatened. Most Deputies have encountered cases involving homeless women who fear for their lives because they have violent partners. IHREC's submission on the Bill states that "Ireland is not currently fulfilling the minimum requirement to provide shelters or appropriate interim accommodation 'for victims in need of a safe place due to an imminent risk of secondary and repeat victimisation, of intimidation and of retaliation', with reports in 2016 of 4,831 unmet requests for emergency accommodation." This issue is also within the remit of the Minister for Housing, Planning, Community and Local Government, Deputy Simon Coveney, whom I have repeatedly asked to declare a housing emergency along the lines of the banking emergency and take whatever steps are necessary to address this statistic. Even in recent weeks, I have been contacted by people who are desperately seeking emergency accommodation, in part on the grounds set out by the IHREC. Legislation on repeat victimisation needs to be strengthened and the issue of emergency accommodation needs to be addressed.
I also note the submission made by the Irish Penal Reform Trust on the importance of restorative justice. I echo the disappointment expressed by previous speakers regarding the omission from the Bill of head 28, which would have placed adult restorative justice practices on a statutory footing. I ask the Minister to explain the reasons for the exclusion of this head. The National Commission on Restorative Justice defines restorative justice as "a victim-sensitive response to criminal offending, which, through engagement with those affected by crime, aims to make amends for the harm that has been caused to victims and communities and which facilitates offender rehabilitation and integration into society." The Irish Penal Reform Trust's submission references the Le Chéile annual report of 2013, Building Bridges, which showed an average 22% increase in victim empathy levels after restorative justice interventions and noted that 100% of victims and offenders felt "their voices were heard throughout the process". We must develop a process of restorative justice and I ask the Minister to consider this before Committee Stage.
Paragraph 12 of the directive includes the statement that "the rights set out in this Directive are without prejudice to the rights of the offender. The term 'offender' refers to a person who has been convicted of a crime." It is important to note that offenders, while imprisoned, may also be victims of crime and may constitute vulnerable persons. As such, they would also have rights under the Bill.
I paid tribute to the organisations which have worked hard over the years on behalf of victims. I commend the great work of the civil society group Promoting Awareness, Responsibility and Care on our Roads, PARC, which is led by Ms Susan Gray. PARC produced and disseminated an excellent information guide entitled Finding Your Way, which is shared on An Garda Síochána’s website. This free information guide for families of victims of fatal and serious road traffic collisions recently received the "highly commended" accolade at the National Adult Literacy Agency, NALA, plain English awards 2016. The Garda Commissioner, Nóirín O'Sullivan, instructed Garda family liaison officers to distribute Finding Your Way to families bereaved as a result of road traffic collisions. The guide sets out the rights available to families and is exactly the type of tailored, crime specific information the directive requires to be provided to victims of crime.
I generally welcome the Bill. However, my colleagues, Deputies Clare Daly and Mick Wallace, will try to make improvements on Committee Stage when they address some of the points I have raised.