Martin Kenny (Sligo-Leitrim, Sinn Fein) | Oireachtas source

I move amendment No. 1:

In page 9, between lines 25 and 26, to insert the following: “(9) In respect of relevant offences to which this Act applies, where an application under section 3 of the Criminal Law (Rape) Act 1981 is made during a trial, having not previously been requested or notified at a preliminary trial hearing, the trial court must be satisfied granting any application is likely to—

(a) facilitate the expeditious and efficient conduct of the proceedings, and

(b) result in the least disruption to the jury and witnesses in the trial of the offence.”.

I will try to simplify the amendment. Section 6(8)(b)(iv) of the Bill provides that any order made under or pursuant to section 3 of the Criminal Law (Rape) Act 1981 must be addressed in the Bill. This issue relates to preliminary hearings. The language in the Bill suggests that, for instance, at a preliminary hearing of a serious sexual crime case a defence team could seek leave to cross-examine the witness or victim, depending on the term one wishes to use, regarding their previous sexual experience. All Members know that in many of these cases there may be issues around consent and so on which can be teased out. That may be appropriate in certain very limited circumstances but under the Criminal Law (Rape) Act 1981, the judge is obliged to be very cautious in that regard.

The O'Malley report suggested that one of two models be used in this regard. One of the models involves the intention to make such an application being notified at the pretrial hearing and then heard during the trial. However, the way the Bill is phrased suggests that such applications could be decided and happen at the pretrial hearing. If that were to be the case, one would have a situation whereby the victim in a sexual assault case would be the same as any other witness from the point of view of the law. The prosecution would prosecute the case, the defence team would defend and the victim would simply be a witness in regard to that.

I believe that in order to protect these persons, who in many of these circumstances are very vulnerable, every effort should be made to ensure that they have a voice. The Minister would recognise that one of the flaws in the system is that, too often, victims are simply treated as witness, have no voice or representation and find it very difficult. That is why many of them do not pursue rape or serious sexual assault claims. They feel they are simply lost in the system. Leaving aside the legislation that is before the House, there is more work to be done to consider and deal with that issue. The O'Malley report dealt with it in some detail. That is why Sinn Féin believes we should press the amendment.

Although the amendment does not deal directly with judges' decisions and cannot influence them in that regard, it does put extra emphasis on the particular point that the notification should be given in the pretrial hearing but the actual decision should not be made until the trial, at which stage there is adequate time to deal with the issue and ensure the victims in these cases do not feel subjected to, in effect, a double trial by virtue of being cross-examined at a pretrial hearing and then further cross-examined at the trial itself. That situation has occurred in certain other jurisdictions. We do not want people to be traumatised again in those circumstances and that is why I believe the amendment is needed. I tabled it on Committee Stage but withdrew it with the intention of resubmitting it on Report Stage.

This is an issue that should be addressed. I hope the Minister will accept this small amendment, which adds a particular emphasis in respect of this issue.

We will be pressing the amendment.

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