Dermot Ahern (Louth, Fianna Fail)

On Committee Stage I said I would not accept this amendment in that it already states the law as it is. The question as to whether the courts' responsibility to forewarn or direct a victim who is to make a statement about the scope or content of a statement should be set out in statute can be traced to the controversy several years ago where the mother of a deceased added additional material at the end of her impact statement which was not notified to the prosecution or defence legal representatives or sentencing judge. The additional material attracted enormous media coverage, adverse to the person convicted of the offence concerned.

Subsequently, the Court of Criminal Appeal, as part of an application by the Director of Public Prosecutions for review of the sentence handed down in the case, made several important albeit obiter remarks as to how sentencing judges should approach victim impact statements. The case in question is the Director of Public Prosecutions v. Wayne O'Donoghue 2006. The court expressed a view that the victim impact statement should be submitted to the judge and the legal representatives of the prosecution and defence in advance to ensure it contains nothing untoward. The remarks of the court serve as a useful function in highlighting the dangers associated with the uncontrolled delivery of additional material in the statement. However, it must be emphasised the remarks were obiter dictum and are therefore binding. The case does not, therefore, place any obligation on the sentencing judge to give such a warning.

Section 25(5) deals with this issue but from a different angle. It gives the court discretion to prohibit the publication of all or part of the statement in the interests of justice. Breach of such a prohibition is a criminal offence on the part of the publisher and broadcaster. The mechanism will mitigate the worst effects of any departure but it would be preferable if unfounded allegations against the accused were not aired in the first instance. If the sentencing judge considers a direction or warning is appropriate in a particular case, that option and discretion should continue to be available. I know the Senator is not aiming to rule it out completely but the amendment proposed merely reflects the law as it operates and is, therefore, unnecessary.