Ivana Bacik (Independent)

I move amendment No. 13:

In page 8, between lines 20 and 21, to insert the following:

"(5) Where a person in respect of whom an offence has been committed, or a family member of that person, proposes to give evidence under subsection (3) orally rather than in writing, it shall not be necessary for the court to give any particular direction or warning to that person in respect of his or her evidence.".

I already have alluded to this amendment which is to deal with an issue that has arisen under the present regime and the existing section 5 of the 1993 Act. Members and the Minister will be aware of the tragic case involving the conviction of Wayne O'Donoghue. Although I do not propose to deal with the O'Donoghue case, Mrs. Justice Macken gave a judgment on it in the Court of Criminal Appeal concerning how victim impact reports would be dealt with. It is fair to state her judgment suggested that the court should warn any relatives giving a victim impact statement concerning the impact of the offence on them where the relative has died that were the relatives to go outside certain parameters, they would be in contempt of court. To a great extent, her judgment was based on what had happened in the O'Donoghue case in respect of its victim impact statement.

However, I argue that it would not be appropriate to give such a warning in a formal way. I am conscious the Minister has not suggested that such a warning would be required and it certainly has not been included within this legislation. In effect however, he has done so in a different way through the new powers in the new section 5(5)(a) as inserted by section 4 of this Bill which states: "The court may, in the interests of justice, order that information relating to the evidence given under subsection (3) or a part of it shall not be published or broadcast." I am fully in agreement with this provision. It is the correct way to deal with the sort of scenario that may arise during a case such as the O'Donoghue one in which certain information in the victim impact statement goes beyond the evidence offered in court.

My proposed subsection, which would be inserted just before the proposed subsection (5), is intended to make clear that the court would not be obliged to give any particular direction or warning to a family member where he or she proposed to give evidence orally under subsection (3). The Minister's subsection (5) deals adequately with the difficulty that arose in the O'Donoghue case. However, my concern is the courts still might take it on themselves to give a warning to family members and this seems inappropriate given that no other category of witness gets such a warning. It seems rather unfair to single out the next of kin of deceased persons who have been unlawfully killed to receive such a warning. While the Minister may state it is not necessary to include a subsection such as this and that it might be creating a hostage to fortune, it simply seeks to deal with some of the wording of Mrs. Justice Macken in the O'Donoghue case. It makes clear that courts are not obliged to give a warning but can deal with any difficulties that arise in the oral evidence through ordering that information given shall not be published or broadcast or that a portion of it not be published or broadcast.