Clare Daly (Dublin Fingal, Independent) | Oireachtas source

I move amendment No. 1 to Seanad amendment No. 23:

In section 29, in the inserted section 14AA proposed to be inserted by Seanad Amendment no. 23, to delete“(i) the nature and circumstances of the case, and

(ii) the personal characteristics of the victim.”,”

and substitute the following:

“(i) the type and nature of the offence;

(ii) the circumstances of the commission of the offence;

(iii) the severity of the offence having regard to any harm suffered by the victim;

(iv) the personal characteristics of the victim, including his or her age, gender, gender identity or expression, ethnicity, race, religion, sexual orientation, health, disability, communications difficulties, relationship to, or dependence on, the accused and any previous experience of crime;

(v) whether the offence appears to have been committed with a bias or discriminatory motive, which may be related to the personal characteristics of the victim including those referred to in paragraph (iv), and

(vi) where it is proposed that the victim give evidence through a live television link under section 13, whether or not the person is resident in the State.”,”.

As the Bill went through the Seanad the Government amended section 23, removing a number of details of the victim's circumstances that have to be taken into account by the court in deciding whether to allow a victim to give evidence through a television link or from behind a screen etc. so as to prevent repeat victimisation. Our amendment is trying to reinsert those details. The version agreed by the Dáil was much more detailed and rightly focused on the various reasons a victim might need a special measure to assist them in court. It would be a shame to lose the helpful detail contained in the deleted subparagraphs, including whether the offence appears to have been committed with a discriminatory motive, the severity of the offence, the harm suffered by the victim and so on. The Government has amended the existing provision to the effect that only the nature and circumstances and the personal characteristics of the case will be taken into account, meaning these are the only two matters to which the court can have regard in making its decision. By contrast, Article 22.2 of the victims' directive, which we are supposed to be transposing, outlines three aspects that should be considered, namely, the personal characteristics of the victim, the type or nature of the crime, and the circumstances of the crime.

The type of crime has not been included in section 14, amended by the Seanad and by the Government. It could be argued that the "nature" and "type" of a crime are the same but they are not and the reason the European Commission saw fit to include both establishes that fact. It is very clear what the type of a crime is but the nature of a crime is a vaguer notion. Section 14AA states that the court shall have regard to the need to protect the victim from secondary and repeat victimisation, intimidation or retaliation, taking into account the nature and circumstances of the case, and the personal characteristics of the victim. We are seeking to list the aspects to which the court shall have regard when deciding whether or not to permit aids in providing evidence.

Article 22.3 of the victims' directive explains what is meant by the term "personal characteristics" of a victim and I have grave concerns that some of these may not be considered by the court if they are not included in the legislation. I have put them into the amendment to give the proper context and it is worth quoting the exact wording of Article 22.3 at this point:

In the context of the individual assessment, particular attention shall be paid to victims who have suffered considerable harm due to the severity of the crime; victims who have suffered a crime committed with a bias or discriminatory motive which could, in particular, be related to their personal characteristics; victims whose relationship to and dependence on the offender make them particularly vulnerable.

Section 14AA does not take into consideration the severity of the crime or the degree of harm. We are looking to reinsert something the Dáil has already agreed.

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