James Browne (Wexford, Fianna Fail) | Oireachtas source

I am pleased to have the opportunity to address the Seanad on behalf of the Minister for Justice, Deputy McEntee. I would like to begin by thanking Senators Doherty, Chambers and Pauline O’Reilly for bringing forward this very important Private Members' Bill on character references in sexual offences trials.

The Criminal Justice (Amendment) Bill 2022 proposes to change the current practice whereby "unvouched" character evidence can be presented as a mitigating factor in sentencing, and replace it with a system whereby such evidence provided in mitigation of a sexual crime can be questioned by the prosecutor or victim and his or her legal representatives. Earlier this week, the Minister brought a memo to Government seeking Cabinet approval to support this Bill on Second Stage. I am happy to confirm that this approval was granted. Some aspects of the Bill will require further work, particularly the consideration of the costs and legal and operational implications of the provisions on legal representation for complainants, but the Government supports the intentions of the Bill.

In recent years there has been increasing awareness that the path travelled by a victim, particularly in cases of sexual offences, can be long and difficult. The Minister has prioritised efforts to ensure a more victim-centred approach in such cases since becoming Minister for Justice. In particular, she published and commenced the implementation of the Government’s action plan entitled Supporting a Victim’s Journey, which sets out 50 individual reforms to help victims and vulnerable witnesses in sexual offences trials.

The situation of the victims of crime has been given added recognition both at European Union level and at national level in recent years with, among other measures, the advent of the Criminal Justice (Victims of Crime) Act 2017.

This Bill deals with one aspect of a much broader body of work that my Department is undertaking to tackle domestic, sexual and gender-based violence, and to keep our communities safe. As Senators will be aware, the Minister is currently leading the development of the third national strategy on domestic, sexual and gender-based violence. The strategy has input from across government involving the Departments responsible for equality, higher education and housing, the Department of Education, the Department of Social Protection, the Department of Transport, other Departments and State agencies. It is being underpinned by clear actions, timelines for reform and robust accountability mechanisms. The Government has said that zero tolerance will be at the heart of this plan and we intend to meet that commitment.

In addition, the Department of Justice is pursuing a number of important initiatives to ensure that we better support victims of crime. When a victim of crime begins to engage with the justice system the victim should know what to expect, be confident in being treated respectfully and sensitively, know his or her legally enforceable rights and what supports are available at every step in the process.

Supporting a Victim's Journey is a plan to implement the recommendations contained in the O'Malley review entitled Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences. The plan seeks to implement important reforms to support and protect vulnerable victims in sexual offences cases, and to ensure that our criminal justice system is more victim-centred. The O’Malley review looked at the journey a victim of a sexual offence faces from the moment a crime is committed against him or her, to the initial reporting of the offence and right through to the end of any court proceedings and beyond because the journey for a victim does not end simply with a verdict.The Minister, Deputy McEntee, is deeply committed to implementing the actions set out in Supporting a Victim’s Journey. She is currently chairing an implementation oversight group, comprising all relevant Departments and agencies responsible for driving the implementation of the agreed actions. Key areas of the trial process that were identified as being traumatic for victims and survivors of sexual violence are being addressed in order to make sure they are not victimised further by the processes that they need to go through in order to seek justice that they deserve.

The Criminal Justice (Amendment) Bill 2022, proposed by the Senators, complements this work by addressing one key process, namely, when character references are being provided for convicted sex offenders. The changed process proposed through the provisions of the Bill would help to ensure that the victims are not re-traumatised by the court experience.

In addition, I would like to note that some reforms under Supporting a Victim’s Journey that have been introduced, including legislation for preliminary trial hearings that was signed into law on 24 May 2021. The use of pretrial hearings will reduce fear of re-victimisation or re-traumatisation for victims in sexual violence cases. It will allow that defence applications about sensitive legal approaches may be taken to be dealt with in advance of the trial hearing. This includes questioning the victim about his or her sexual experience. The victim will have the right to be represented by the same barrister at the pretrial and during the trial itself when being questioned about their previous sexual experience.

In addition to these legislative tools, the nationwide rollout of the divisional protective services units, DPSUs, ensures that vulnerable victims are dealt with by gardaí who have specialist expertise. Officers who are assigned to the DPSUs receive bespoke training on engaging with vulnerable victims, which includes modules and sexual crime investigation, domestic abuse intervention and investigation, victim engagement, sex offender management and online child exploitation. Funding has also been increased for NGOs providing court accompaniment and related information and support services. An additional €445,000 was made available last year to 18 organisations to fill gaps in service provision.

In order to promote more sustainable service delivery and planning, my Department is also offering multi-annual funding commitments to key NGOs that are working in this area. These grants cover accompaniment to court, to garda interviews and to sexual assault treatment units as well as emotional support and counselling. The Department of Justice is in the process of developing actions through which all communities in Ireland, including translating the posters and leaflets used to raise awareness of rights under the Criminal Justice (Victims of Crime) Act into other languages that are commonly spoken among Ireland’s immigrant communities. This will become all the more important in the coming weeks and months, as we continue to welcome Ukrainian refugees into our communities.

Under Supporting a Victim’s Journey, work has commenced to develop training for all personnel who come into contact with vulnerable victims. The University of Limerick, UL, has been commissioned to develop the framework for the operation and training of intermediaries. The Minister recently announced funding totalling €4.6 million for more than 60 organisations to support victims of crime. This is an increase of more than 20% of the previous total fund of €3.8 million which was made available in 2021. The Government is confident that through increased funding, together with the work to implement the actions set out in Supporting a Victim’s Journey, we will ensure that we have a system that removes fear and that empowers victims to have the confidence to report an offence, knowing that they will be supported, informed and treated respectfully and professionally for the entirety of the difficult journey they have to face.

In the summer, the Minister, Deputy McEntee, will publish a new hate crime Bill, which will introduce new specific aggravated offences with enhanced penalties for crimes motivated by prejudice against certain characteristics, including gender. Later in the year, a new sexual offences Bill will be published, which will introduce important reforms to protect victims of sexual violence during the investigation and prosecution of sexual offences. The sexual offences Bill will extend victim anonymity to further categories of victims and will include provisions for sentences to be delivered in public. The Bill will also provide for legal representation for victims, similar to the Criminal Justice (Amendment) Bill 2022, proposed by Senators Doherty, Chambers and Pauline O'Reilly and under discussion today.

Yesterday, the Government Sex Offenders (Amendment) Bill 2021 was on Committee Stage in the Dáil. It represents an important commitment in the programme for Government and will strengthen our already robust system of managing and monitoring of sex offenders in the community. The Criminal Justice (Amendment) Bill 2022 is additional and key Bill that protects the victims of sexual offences cases. The Bill aims to create a process whereby character evidence in respect of person who is convicted of a sexual offence cannot be given without the leave of the court. It places the right to cross-examine character witnesses on a statutory basis and it extends it to victims and to their legal representatives. It makes provision for legal aid for the victims to be represented for the purposes of this process.

As the Senators outlined, the Bill will improve the information available to the court and will help ensure that the victim is not re-traumatised by the court experience. The provision for complainants to be represented during the process whereby character references are being provided is, however, very novel in context of a criminal trial. Except in very limited circumstances, complainants are not usually represented at any stage of criminal trial, including at sentencing stage. In Ireland’s common law system, the criminal trial is essentially a binary contest between the prosecution and the defence. The procedural and evidentiary rules, including those at sentencing stage, which have evolved overtime, are based on that assumption.

Under both the Constitution of Ireland and the European Convention on Human Rights, ECHR, there must be equality of arms insofar as that can be achieved between the accused and the prosecution. This does not of course prevent every reasonable consideration being accorded to the witnesses and victims in particular who testify at trial. The introduction of separate legal representation for one category of witness will have to be considered within this context.

The O'Malley review considered the question of expanding legal representation for victims during criminal trials. Following detailed consideration and consultation, the review proposed that the right to separate legal representation for victims under section 4A of the Criminal Law (Rape) Act 1981, in circumstances where an application is made to question of victim about other sexual experience, should be extended to include trials for sexual assault. In moving forward the Bill that is before us today, it will be important to carefully consider the analysis and the findings contained within the O'Malley report. Therefore, while supporting this Bill, the Minister, Deputy McEntee, will work with the Senators to ensure that these considerations are examined in more detail as the Private Members’ Bill progresses. There are also other aspects that will require further legal advice, including that the Bill draws no distinction between adult offenders and child offenders. I am informed that a significant proportion of those who are convicted of sexual offences are themselves children who are subject to the principles in the range of sentencing options in the Children Act 2001, as amended. Consideration would be necessary of the interaction of the potential adjournment periods in the Bill to facilitate this new process with the strict time limits contained the Children Act 2001 when a court is sentencing a child. For example, section 100 of the Children Act 2001 provides a court may only defer sentencing for the preparation of a report for a period of 28 days when a child is on remand, and an additional 14 days when a child is on bail. The Minister, Deputy McEntee, will be happy to work through these matters with the sponsoring Senators.

Finally, as the Senators will be aware, there will be additional costs associated with the provision of legal aid, as set out in the Bill. The Legal Aid Board observed that the proposals could give rise to significant costs and, as the board would be required to provide a priority service, there could be implications for the waiting times for non-priority matters in law centres. In addition, the board observes that once contested plea hearings are provided for in one category of criminal offence. It may be difficult to resist the practice being extended to other types of criminal cases. Consideration will have to be given to the resourcing and operational implications of the proposals in this Bill.

As I outlined earlier, the Government supports this Bill, while recognising that further consideration will be needed on a number of matters. I once again would like to thank the Senators for tabling the important Bill.