Barry Ward (Fine Gael) | Oireachtas source

Cuirim fáilte roimh Chathaoirleach an choiste dlí agus cirt. I had the honour to be part of the committee that put together this report. We had a number of engagements with various witnesses from a variety of perspectives. We received an extraordinary perspective from those who represented victims, particularly of sexual assaults and rape. As has already been noted, we received evidence from Rape Crisis Network Ireland and Mens' Aid Ireland, among others. There were also written submissions. What came with that was the tremendously important perspective of those who have been victims, who have gone through the court system as victims and who had the experience of giving testimony or being in court. There is no doubt that is an unpleasant experience. In fact, it is often an unpleasant experience for witnesses who are not victims. Part of what this report does is to seek to address that and to deal with people's court experiences.

Some things have already been said in the course of this debate that I think are inaccurate. Reference was made to a trial outside this jurisdiction and the treatment that was given to a victim and a witness in that trial that was appalling, and I do not dispute that. However, it would not have happened in this jurisdiction. There are measures in place here, for example, relating to sexual history. It is exceptional in the context of rape trials for sexual histories to be opened. That does not mean it does not happen, but there is a specific legal basis on which it happens and it is unfortunate every time it happens because it does exactly what we have heard here, that is, it discourages victims from coming forward.

There has been much talk about the statistics around the number of victims who come forward, the number of cases that proceed to trial and the number of convictions that are obtained from those trials. Those figures are not only shocking, in and of themselves for the low rates they reflect, but they are also still estimates. The figures might actually be worse than those estimates that have been presented to the committee as part of this report. However, we must also be conscious of the fact it does happen that people are be falsely accused. I am not saying that accounts for the numbers by any stretch of the imagination. It simply cannot, because they are incomparable to almost any other set of offences that exist in our law.

One of the things we must consider in the context of the law, as has been mentioned by other speakers, is the balancing of rights and the protection of people who are before a court and accused of crimes. There has been a progressive change in that direction not necessarily because of anything any government in this jurisdiction has done but because of the victims directive at European level, which forces the Director of Public Prosecutions, prosecutorial authorities and the Garda to take a much more victim-centred approach and to have much greater consideration for the perspective of the victim and the difficulty and trauma a victim has gone through. Even in recent years since that became law, progress has been made. It does not mean, by any stretch, that we are in a situation where real parity exists in a criminal trial when a person must face the persecutor who committed an offence against him or her, as other speakers have said.

Someone, perhaps the Chair of the committee, said it is impossible for those of us who, thankfully, have not been the victims of sexual crime to put ourselves in that position and truly understand the trauma involved in coming to court and, essentially, reliving that experience. The difficulty is in squaring that circle and trying to create a parity while also respecting the rules of our judicial and criminal justice system, which allow the rights of all parties to be explored by the court. That is an extremely difficult task and tight line to walk. This report brings forward four recommendations that I hope will bring us closer to where that line is and closer to that parity.

My fear is there will never be real parity. It will never be easy for a victim to go to court. There will always be difficulties but we can take steps to make it easier and to progress the system to a stage where people are not recommending to their children not to go the Garda when they have been sexually assaulted. That is perhaps at the very heart of this problem. The system is so dysfunctional in terms of its outcomes and the experiences of victims that parents are telling their children just to leave it alone because they would be better off. That is pervasive and it is enormously damaging to the system. More important, it is damaging to the idea that we are going to tackle this as a societal problem. I hope this report will move us away from that to a situation where people are willing to come forward and put themselves in a situation to deal with the criminal justice system.

In some of the recommendations, there is mention of parity of representation between victims, the prosecution and the defence. For a long time in our legal system, we said that victims do not have a place in the court because they are not rational beings and they are looking for retribution for whatever crime has been committed. A situation exists in other jurisdictions where the victims of crimes decide on what the penalty is. Nobody is suggesting we go there because those victims are obviously not in a position to approach that rationally in the way an independent judge might be.

What has changed within my lifetime as a lawyer who has been involved in these sorts of trials is there is now a much greater appreciation of the importance and centrality of the role of the victim in allowing the court to understand properly. Those changes include victim impact reports, for example, which come after the fact. Now, with the victims directive, in the context of the actual trial, there is an allowance for the victim to give proper, uninterrupted, untrammelled evidence. Of course that evidence is subject to challenge, as it must be, but the directive allows victims to have their say, for their voices to be heard and their experiences to be lit before the court. That is tremendously important. To have that legal representation is another step forward.

The Department of Justice has taken steps forward by saying a senior counsel as well as a junior counsel should be assigned to represent a victim. I hear from colleagues that some of the Legal Aid Board offices have taken the view that means senior counsel only when, in fact, what we want is parity whereby a victim gets exactly the same strength of legal representation as any other party to the case, that is, both senior and junior counsel. That is important.

The report has recommended more judges, which is also important. As the Chair of the committee mentioned, there is a lack of progression in cases. The length of time it takes from the day you make the complaint to the Garda to the day you have your say in court is far too long. That also has a massive impact on victims. That is because of a lack of judges, courtrooms, registrars and court staff to staff those courts. All of those things must be increased if we are properly to deal with that issue. Courtrooms themselves have improved. In the Criminal Courts of Justice in Dublin, for example, there is infrastructure to separate accused persons in custody from victims. There is a separate stream for victims and a suite where they can go. That is progress but it has not happened everywhere in the country. The familiarisation of victims with the courtroom process and layout are tremendously important.

Consent training has also been mentioned and it is important. I have said that in this Chamber before. It is important in particular for young men, although I absolutely acknowledge that women are not the only victims of sexual assault and men are not the only perpetrators. For young men actually to understand the damage they can do and how not to overstep that line, how to be within the bounds of what is acceptable, is important. These are just some of the 14 recommendations in the report. We do not have time to go through them all, unfortunately, but I recommend the report. It takes steps along a balanced line at redressing the issues we have for victims in our courts and, I hope, will improve them, when implemented.