Ivana Bacik (Independent)

I move amendment No. 17:

In page 10, before section 7, but in Part 2, to insert the following new section:

7.—In an application under this section the court may make such order as it sees fit to facilitate legal representation of a person in respect of whom an offence has been committed or a family member as appropriate, where it is appropriate to do so.

This refers to Part 2 of the Bill. I anticipate that the Minister will say this section is far too broad and that he does not see its purpose. The genesis of this amendment is research I carried out with colleagues in Trinity College Dublin for the Dublin Rape Crisis Centre in 1998. We examined the experiences of rape victims in Ireland during the trial process and contrasted this with the experiences of victims in other member states. In continental European systems, where a different criminal justice procedure is used, the victim has a greater role in the trial process and tends to be legally represented. In homicide cases this applies to the victim's family. We were interested in seeing whether a similar representative provision could be made in Ireland, while mindful that in an adversarial trial process equality of arms must be preserved. Therefore, it would be unfair to an accused person to have two against one. Based on the report following that research, in particular recommendations based on the Danish legal system which is closer to our own, the provision in the Sex Offenders Act, to which I referred, for separate legal representation for victims of rape and serious sexual offences was introduced albeit in a very limited form. A complainant has limited representation rights; where there is an application in the absence of the jury by the defence to adduce prior sexual history evidence the victim may be represented and his or her counsel will have a right of audience before the court. That is the type of scenario we recommended where it might be appropriate for a court to facilitate legal representation of a person.

This is a facilitative section which would encompass that idea of legal representation. I anticipate that the Minister will state this is too broad and that he does not see at what in particular it is aimed. I suppose I am setting it out as a marker because this is something we should examine. At present, I am researching how the limited right to separate legal representation we have in rape trials and serious sexual offence trials works in practice. From that we might be able to extrapolate whether it could be extended. I tabled this amendment to highlight the principle that legal representation of victims or their family members might be envisaged without breaching the adversarial trial procedures.

I am conscious that prior to our research on rape law the Civil Legal Aid Act already provided that victims of serious sexual offences were entitled to legal aid for pre-trial advice and assistance. In other words, they could consult a solicitor and get legal aid and that is still the case. Very few victims are aware of that and avail of it. However, the separate legal representation provision for prior sexual history applications is more widely used and that is of interest. As I stated, I am putting down a marker with this amendment, which is broadly drafted, but it indicates my hope that the Minister will examine this principle and how it could be built upon in the interests of victims' rights.