Dermot Ahern (Louth, Fianna Fail)

I can understand the effort by the Senator to have this principle discussed but this has been examined in recent years and the strong conclusion is that there are constitutional impediments to full separate legal representation for a complainant during the duration of a trial. The weight of legal advice available to the Department is that full separate legal representation would tilt the balance of a trial before a jury to such an extent that it would conflict with Article 38.1° of the Constitution, which states that, "No person shall be tried on any criminal charge save in due course of law".

The Law Reform Commission supported this view in its report on rape, and Justice Flood in the People v. MC on 16 June 1995 intimated that making an injured party an independent party in a criminal trial would be doubtful constitutionally. The legal advice to the Department when the Sexual Offences Act 2001 was being prepared was that full separate legal representation in the presence of a jury would, in the words of the Law Reform Commission in its report on rape, deprive the accused of "the long-standing benefits of a criminal trial conducted in 'due course of law'". The circumstances in which complainants are entitled to avail of legal representation are therefore of necessity very narrow.

The Sex Offenders Act 2001 provides for separate legal representation for complainants, rightly in my view, in a situation where an application is made to the court in the course of a trial to adduce evidence or cross-examine about a complainant's past sexual history. The argument in favour of separate legal representation for the complainant in rape and sexual assault cases was that it would provide much needed support for complainants, render the trial process considerably less traumatic for them and contribute significantly to bringing about an increase in the reportage of rape.

The provision on separate legal representation, taken together with the provisions in section 26(3) of the Civil Legal Aid Act 1995, allows a complainant in cases of rape and serious sexual assault to consult a legal aid solicitor who may accompany the complainant into court. Procedures in place whereby the prosecution team arranges for pre-trial consultations with complainants to familiarise them with the legal proceedings and to explain the lay-out and procedures of the court and the type of matters which may be the subject of examination by counsel are agreed to have gone a long way to improve the position of the complainant in the trial process of rape and sexual assault cases.

The measures introduced represented a serious effort to allay some of the real concerns of complainants in rape trials without breaching the fundamental principle of an accused's right to a fair trial. The provision to allow separate legal representation where applications are made to the court to adduce evidence or cross-examine about a complainant's past sexual history was aimed at circumventing this constitutional difficulty. As such applications are made in its absence, a jury would be unaware or unswayed by the apparent inequality of representation as between the accused on the one hand and the prosecutor on the other. Having regard to the foregoing, I do not propose to make any alterations to the present position on legal representation in criminal proceedings.