Dermot Ahern (Louth, Fianna Fail)

Senator Bacik took the words right out of my mouth as this amendment is completely unnecessary and in a way, its acceptance potentially would tie the hands of the presiding judge. The Senator is correct that a controversy arose a number of years ago in which the mother of a deceased boy added additional material that had not been notified to either the prosecution or defence legal representatives or to the sentencing judge at the time of delivering the victim impact statement. At the time the additional material attracted enormous media coverage that was adverse to the person convicted of the offence concerned. When this matter came to the Court of Criminal Appeal as part of the application by the Director of Public Prosecutions for a review of the sentence handed down in the case, the court made a number of important, albeit obiter, remarks as to how sentencing judges should approach victim impact statements.

The judgment to which I refer is that of 18 October 2006 in the case of The People v. Wayne O'Donoghue. The court expressed the view that the statement should be submitted to the judge and the legal representatives of the prosecution and defence in advance of the making of a statement to ensure it contained nothing untoward. This already is the practice and means the statements must be prepared in written form. The court went on to state: "While great sympathy must undoubtedly exist for the person making the victim impact statement, every effort must ... be made to ensure that the statement is not used to undermine the proper role of the prosecution in a trial, nor to seek to place in the public domain unfounded or unproven allegations against the convicted person who is awaiting sentence." To ensure the statement is properly circumscribed, the court stated that the person making the statement should be warned by the sentencing judge that were he or she to depart from the statement in any material way, he or she might be liable to be found in contempt of court.

My understanding is that this is what the Senator's amendment seeks to address. It must be emphasised that the remarks were obiter and therefore are not binding. Consequently, there is no obligation on a sentencing judge to give such a warning and the Senator's amendment therefore is unnecessary as it simply restates the law as it stands. The remarks of the court serve a useful function in highlighting the dangers associated with the uncontrolled delivery of additional material to a statement. Section 5(5) as inserted by section 4 of the Bill seeks to deal with this issue by giving the court discretion to prohibit the publication of all or part of a statement in the interests of justice. Breach of this prohibition is a criminal offence and this mechanism will mitigate the worst effects of any departure. Clearly, however it would be preferable were unfounded allegations against the accused not aired in the first instance. If the sentencing judge considers that a direction or warning is appropriate in a particular case, I believe that option should continue to be available and it is. While the Senator does not aim to rule this out completely, this is the reason I suggested the amendment simply restates the law and therefore is unnecessary and, as I noted at the outset, may in an unintended way overtly restrict the presiding judge.