Dermot Ahern (Louth, Fianna Fail)

The amendment states "legal representation", not "limited legal representation". If one was to allow this, as it were, one might ask: how long is a piece of string? There would be all sorts of arguments as to what was the intention of the Legislature if we were to include this. Legal representation, in effect, would mean the full gamut.

I am advised that there are constitutional impediments to separate full legal representation for the complainant for the duration of the 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, 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 Mr. Justice Flood in the People v. MC, Central Criminal Court, 16 June 1995, intimated that making an injured party an independent party in a criminal trial would be doubtful constitutionally. The legal advice available to the Department at the time 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 1988 report on rape, which I mentioned a moment ago, 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 an example of where it might arise. The measures introduced by that Act represented a serious effort to allay some of the concerns of complainants in rape trials without breaching the fundamental principle of an accused's right to a fair trial. I do not propose to make any alterations to the present position on legal representation in the criminal process.