Barry Ward (Fine Gael) | Oireachtas source

Senator Doherty, in particular, and I have had a number of conversations about the Bill. I welcome the intentions behind it and acknowledge much of what has been said during the debate. We are surrounded by a breadth of experience in this area, which is unfortunate, be that on the part of a Senator who has been the subject of sexual assault, Senators who have been involved in calling it out and other Senators who have heard from people throughout the country who have told them their stories. An unfortunate breadth of experience in this Chamber informs the legislation.

As has been acknowledged, the Government has taken action following Deputy McEntee taking over the justice Ministry. She has launched a number of crusades, especially in this area. She has brought issues to the fore and dealt with them legislatively in a very laudable way, and she has spearheaded many of those initiatives in conjunction with Members of this House in particular.

Given I have a great deal of professional experience in this area, I might give some professional context regarding the way these matters operate. I work as a criminal barrister and have acted for both the prosecution and the defence in respect of the types of offences described in the Bill. They are unpleasant cases to be involved in - I say that in no uncertain terms - but I have had the privilege of meeting victims and complainants who have been the subject of these crimes. I have also dealt with people who have been the perpetrators of these crimes, so I have seen the issue from both sides.

I heard what Senator Hoey, in particular, said. Her experience is in no way defensible; in fact, it is appalling. It is an indictment of the flaws in the system. For those comments to have been made to her is not just inexplicable and the height of unprofessionalism but is part of the problem in the system. I acknowledge also the serious problem relating to the reporting of these types of crimes, and the fact so many victims and people who have been the subject of these offences decide it will be easier not to go to the Garda and not to allow the matter to go to court than it would be to have the matter proceed and to have the person who perpetrated the crime face justice. That is, without doubt, a flaw and a problem in the system.

Nevertheless, the issue of guilt in a given case will have been resolved by the point the Bill comes into play.I heard Senator Doherty, in her contribution earlier, say that the contributions that are made by character witnesses are there to mitigate the crime. They are not. The crime cannot be mitigated. In a sentence hearing the prosecuting member, and sometimes there is more than one prosecuting member depending on the type of case involved, will get into the witness box in court and give evidence of what we commonly refer to as the facts. They will recite the often awful details of what happened to a person in the context of a crime. That is beyond dispute. The person who has pleaded guilty to that crime has accepted the truth of those facts and they cannot be disputed beyond that.

However, the purpose of a sentence hearing is not just to sentence in terms of the offence. That is one component but it is also to sentence the offender and that is why the court must hear from the offender's side or defence side. That is why the court hears the information that the defence wishes to put forward and that may include character references. First, those references are very rarely given orally or viva voce. They are invariably given by way of a letter and the person giving the reference almost never comes to court. Examples have been given of where this has happened but it is a very rare occurrence. It is unusual for someone to actually have to listen to this being said in court. It may be expounded by defence counsel. That may happen but it is unusual.

A character reference is normally submitted by letter. That letter is also shared with the prosecution, so the prosecution knows the content of the letter before it is given to the court. If there is something in that letter that is incorrect or wrong then it can absolutely be challenged now. I am not sure of the value of a cross-examination facility in terms of that because I do not think it would arise in most cases, although it might in one or two cases. The worst thing about this is that even the most heinous offence involves an offender for whom something good can be said. Our system allows that person to have that something good said. It does not mean that the offence is any less serious. It does not mean that the sentence should be any less but that is a decision for our judges.

Senator Chambers raised the issue that it is often said by members of the profession that judges do not pay heed to these references. Quite reasonably she may ask the question of why they are given. They are given because it is the right of the defendant to give them and to have the defendant's side heard, however difficult that might be for all of us to listen to. When one is dealing with a person who has behaved in a particular way then it is difficult for all of us but we have a fundamental fair procedures requirement in courts here that must allow that person to have that say. We should ask ourselves the following. What speaks loudest to a judge in a sentence hearing? What is the fact that the judge most wants to consider? It is not a local person, an employer or a GAA club president. It is an independent professional who comes in and speaks of a person's attempts at rehabilitation. Apart from these offences, in drugs cases it is about attempts to get off drugs and get clean. In cases involving assault it might be anger management. In cases involving alcohol abuse it might be Alcoholics Anonymous or AA meetings. That speaks much more loudly to any judge.

I understand and I am extremely sympathetic with the aims behind this Bill but I am not sure that its passage would significantly change the factors that discourage people from coming forward. It is very important for us to be cognisant of the fact that our courts work extremely well on the whole. There are gaps, which have been elucidated here in this Chamber today, and I welcome any attempt to deal with them. From a professional perspective, we should be cognisant of the fact that there are many aspects of sentence hearings that would be unaffected by the provisions of this Bill, which is why I am not convinced that they will achieve what we would all like them to achieve.