Pa Daly (Kerry, Sinn Fein) | Oireachtas source

This is an important Bill with a number of long overdue reforms. I want to mention the hard work of a number of campaigners, including the Women of Honour. I note the Defence Forces section of the Bills digest includes reference to the independent review group on dignity and equality issues in Defence Forces. The Bill contains amendments to sections 169 and 192 of the 1954 Act. I pay tribute to the Women of Honour for pushing their case in order that we have better justice. Their campaign will continue, no doubt.

We have also seen many others in the courts bravely waiving their right to anonymity in sexual offences cases to encourage other women to come forward about abuse. No doubt some of the recommendations have come as a result of their bravery. These are difficult cases. The adversarial nature of the legal system, which is there to uphold the rights of defendants and victims alike, can sometimes lead to contradictions and challenges. I was struck by the words of one woman in a recent victim impact statement, as reported in The Irish Times. She was the subject of a high-profile trial. She said that although the defence lawyers had a job to do, they left her with her dignity. It has been my experience that the professionalism of defence and prosecution counsel is more the norm than some of the examples of unfortunate and inappropriate questioning that we have heard about. In my experience it has always been professional. We need to move towards this, as it was some sort of consolation to the victim in that particular case.

Coming forward and making a report, often relating to historic abuse going back decades, is one part of upholding the rights of victims. An investigation in 2020 revealed that with regard to a range of institutions, including the Garda, social services, the legal system, youth services, the political system and mental health services, survivors feel let down. Access to therapeutic supports for adults and children continues to be an issue. While this is not under the remit of the Minister of State, I am sure he acknowledges their importance. In our recent debate on the Domestic, Sexual and Gender-Based Violence Agency Bill we highlighted the importance of a whole-of-government approach to these issues, which must be reiterated.

In 2022 it was revealed that 41% of requests to the Director of Public Prosecutions, DPP, for explanations where there was no prosecution related to sexual offences. This was followed by a recent review by the National Women's Council of Ireland and the Department of Justice. Complainants often want answers. They want to be trusted. We must look at policy solutions that can assist in this. Restorative justice is something on which we will launch a Bill soon. We will be tabling legislation. This could assist greatly. According to the EU forum for restorative justice, victim satisfaction is at least 85%. This is obviously very high. With many cases difficult to prosecute increasing its usage may give victims and those accused more satisfactory outcomes. I will say more on this later.

I have one or two comments on the Minister of State's speech. I note what he said on the Supreme Court judgment at the end of August. He described it as a complex and nuanced judgment on criminal liability. Consideration must be given to what the Minister of State has said. We look forward to discussing this further on Committee Stage and seeing the Minister of State's proposals arising out of the Supreme Court case.

We welcome sexual assault victims being entitled to legal representation. The Minister of State said that the scope of the provision is being expanded and it will not only be with regard to previous sexual history. Legal representatives will be present in court and will be able to advise the victim to object to any obtrusive question. We welcome this.

I note that the Bill refers to a verdict being announced but the Minister of State stated that verdicts will be delivered. I thought what the Minister of State said about excluding nosy neighbours or complete strangers from the courtroom to be curious. This is something that can be considered on Committee Stage. There will be a conflict between justice being seen to be done and the other side of the argument, which is removing what the Minister of State described as nosy neighbours. I am not sure there has been great difficulty with announcing the verdict in court but we can discuss this again on Committee Stage. Anonymity for victims and accused in sexual assault trials is important. It is possible for a number of offences already. I note the O'Malley review stated admitting the public could easily lead to identification. Let us examine on Committee Stage whether there has been a difficulty in practice rather than speculating as to whether it is taking place. I certainly never saw too many nosy neighbours around the courtrooms.

The O'Malley review stated that consultees were agreed that criminal proceedings for sexual offences should take place otherwise than in public and it was dissatisfied with the current arrangements, which do not amount to secret justice. He stated that bona fide representatives of the press are always entitled to be present to report on proceedings while respecting the anonymity of the victim and the accused, except of course where an application is made with regard to sexual experience. The review also discussed the stress that could be placed on complainants and victims by the presence of the media and the risk of anonymity being compromised. There is a balance there.

We do not want to move to a scenario, which some people have warned against, where a verdict might be delivered and not openly declared in court by a jury. Would people be able to tell whether it was unanimous or a majority? It is important that it would be announced in open court.

As I said, the Bill extends the right to separate legal representation and this is to be welcomed. It would be remiss of me not to mention the barristers who yesterday took action over cuts in the rates of their fees. This matter has been ongoing for some time. The buck has been passed between the Department of Justice and Department of Public Expenditure, National Development Plan Delivery and Reform. The latter Department cannot be blamed for everything. While this measure is welcome, it is important that a barrister would be found in these types of cases.

The viability of criminal defence and criminal prosecution, and a career at the Bar as a whole, is under immense threat. I note that according to one study, as many as two thirds of newly-qualified barristers leave the profession within six years. We support any fee restoration and link back to the position of assistant principal. The link between the payment and the assistant principal position was unilaterally taken away after the crash. Has a regulatory impact assessment been carried out with regard to this provision? What is the estimated demand for barristers that will arise as a result of more of them being brought into court to represent the views and interests of victims in criminal cases?

One other element of the Bill is, "Amending the mens rea or mental element of rape to provide that the offence is committed where there is non-consensual intercourse and the ... [person] 'does not reasonably believe' at the time of the intercourse that the woman consents." The need for education on this subject is very clear. I note that in every third-level institution now, consent classes are undertaken. Great strides are being made with regard to consent but the implications of this definition, which may become clear once a case has been prosecuted, does need to be teased out. That may be another point to discuss on Committee Stage.

The Bill puts the national referral mechanism for human trafficking on a statutory footing. We have long supported anti-human trafficking measures. We saw criticism of the State recently from bodies such as the Group of Experts on Action against Trafficking in Human Beings, GRETA, which have pointed out the lack of a compensation mechanism for victims as well as a lack of national referral mechanism. It is very complicated, but it is one area in which we must continue to make strides as well as acknowledge the wider socioeconomic pressures that lead people to fall victim to trafficking. Good migration policy will mitigate this. I am sure we are all united with regard to the protection of children, and the ratification of the provision of the second operational protocol on the UN Convention on the Rights of the Child has been long delayed.

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