Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

Sexual offences in Ireland are unique, when we look at the criminal code, because they are targeted nearly exclusively against one group in society, and that is women. I know there have been and there are sexual offences that are perpetrated against men but, predominantly, these are offences that are perpetrated against women. We need to recognise that when they are being perpetrated, they are offences that are combined with physical violence, as well as sexual violence, against that victim.

Gardaí are getting much better with regard to how they investigate sexual offences. I think that it is recognised, when one talks to people who have been victims of sexual offences, in many instances they are now saying the gardaí performed particularly well in the investigation of those offences. We need to figure out in this House what we can do to facilitate and to protect women who, as I say, are predominantly offended against when it comes to these offences.

I am pleased to say some of the legislation that has been introduced in recent years provides greater protections to women who are victims of sexual offences. More broadly, in 2017 we introduced legislation that recognised for the first time the importance and role of victims of crime in our criminal justice system. For too long the criminal justice system has been focused on the issue of the guilt or innocence of the accused. It is important we recognise that victims have an important part to play in the criminal justice process. I commend the Minister of State, Deputy Browne, on the work he has done on this Bill and for bringing it before the House and I commend the Minister, Deputy McEntee, as well. It is a very important Bill. Members have spoken about the provisions within it and I do not intend to repeat what has been said so eloquently by other Members, but there is universal support here for this Bill and that is indicative of how there is recognition in this House that more needs to be done to protect victims of sexual offences.

I refer the Minister and the Minister of State to an article that was published about ten days ago in The Irish Judicial Studies Journal. It is entitled "Towards a Presumption of Victimhood - Possibilities for Re-Balancing the Criminal Process". This article was written by Mr. Justice Peter Charleton and Orlaith Cross. In the article they set out how they believe the criminal trial and justice process needs to be rebalanced in favour of the victim. They are not suggesting the rights of the accused should be diminished in any material way or that the presumption of innocence should not apply when it comes to somebody who is charged with serious offences. However, the article puts forward a number of proposals on rebalancing the trial process.

One thing all of us in this House are aware of is that when you speak to women – and it is predominantly women – who have been through the process of a criminal trial where an accused is being prosecuted for a sexual offence against them, they find the criminal trial process intimidating and demanding. We have an obligation in this House to try to change that so it is not as demanding or intimidating. A number of suggestions were put forward by the authors in the article as to how that could be done. One of the suggestions they put forward is that providing information to somebody who is a victim of an offence, regardless of whether it is a sexual offence, is not enough in itself. We have introduced measures in this House in recent times that will give more information to a complainant in any trial and to a victim in a sexual offence trial.

The second point the article makes is that on numerous occasions we have spoken in this House and recommendations have been put forward that the victim in the criminal trial process should have separate legal representation. That can happen under existing legislation in circumstances where the victim is being cross-examined and where it is believed the prosecuting counsel is not providing sufficient protection. What is suggested in the article is that there should be a closer relationship between the victim and the prosecuting counsel. We know that in a criminal trial the prosecuting counsel is prosecuting on behalf of the Director of Public Prosecutions, DPP. He or she is representing the interests of the State. It is true the prosecuting counsel is not employed or hired on behalf of the victim but the reality is the prosecuting counsel and the DPP are representing the interests of the victim who has made a complaint that the DPP believes is sufficient to launch a prosecution. There needs to be closer contact between prosecution counsel and the victim in a criminal trial process.

A third point mentioned in the article is that it might be necessary for counsel and solicitors to engage in training by professional bodies and that perhaps State parties should engage counsel and solicitors. That is something we have spoken about before but we have not really done that much about it and it is notable a service exists in England and Wales, the Advocate’s Gateway, which provides a toolkit on questioning vulnerable witnesses and up-to-date resources. That is something we should also look at.

Another point that is sometimes made by people who have gone through the trial process is that they find the cross-examination process intimidating, demanding and challenging. Cross-examination plays an important role in trying to establish the truth and nobody is suggesting the right to cross-examine should be taken away from any accused person. However, it must be the case that the right to cross-examine can be curtailed or limited in time. We already see that happening in civil trials and it has not resulted in miscarriages of justice or inaccurate results. Similarly, we need to look at criminal trials again to ensure cross-examination is not permitted to go on endlessly for the sake of trying to undermine and exhaust a witness.

Another point that is made is that an accused usually does not give evidence. I am not suggesting an accused should be required to give evidence but the article refers to how the self-serving statements, made at Garda stations, of accused persons who do not give evidence are read out at trials. We need to look at that as well.

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