Barry Ward (Fine Gael) | Oireachtas source

It is worth noting as well that this is an important new provision this legislation will provide. As somebody who practices in the criminal courts, it is important to remember that the value of cross-examination cannot be underestimated. It is incredibly important for those accused of crimes to have the right to face their accuser and essentially test the evidence their accuser is giving.

In the vast majority of cases, that is done through a representative such as a solicitor or, more often, counsel or a barrister in court.

The important thing is that when a barrister stands up to cross-examine a witness, he or she is subject to a range of restrictions or codes of conduct or expected models of behaviour in addition to all the training and expertise that person may have built up over a career or over decades. The danger is that, of course, people also have the right to represent themselves. Again, I do not dispute that right. It is an important right within the canon of rights that exist for those accused of crimes. Very often in a criminal trial, the person who knows most about the case is the person who is accused. The person who has most at stake is the person who is accused, which is not to say that people do not receive excellent representation from barristers and solicitors, including under the legal aid scheme in this jurisdiction.

However, while it is an important right for people to represent themselves, and I say this in the context of the hate speech legislation, no right is absolute. All of the rights we enjoy, be it under the Constitution or international instruments, are rights that are balanced against other rights. At some level, even the most fundamental rights are balanced against other rights. So, too, is this true of the right to represent oneself. Therefore, nobody is suggesting that should be removed. In certain circumstances, however, it just is not appropriate for a person to represent himself or herself and then also get to cross-examine the very person who made an accusation against him or her. The reason for that is simply that it is hugely and potentially massively damaging for the complainant in that case. It is something that will actively discourage those people from coming forward, as the Minister said. The reality is that we all know of cases where it can be done nefariously. It can be done with malicious intent by the person in order to specifically embarrass the complainant or make that process of giving evidence more difficult, which is not to say this amendment and this new section will make it easy for complainants to give evidence. It is always difficult to make a complaint against a person and go through the process of giving a statement and evidence to the Garda and then go through a court process, if that is what happens, and go into a courtroom and swear an oath and affirmation and then recount what happened. That is always going to be difficult. However, it is important that we make it as easy as possible, or at least as reasonable as possible. We should be actively taking out of the process specific barriers that make it almost impossible for people to complain and to give evidence.

The obvious example is a person who alleges a rape was committed against him or her. The idea that a person would have to go into court is obviously going to be difficult but then once in there, they may have the very person they say raped them stand up and potentially hurl abuse at them in an open courtroom in the full gaze of a jury, other lawyers and the judge or whatever it is. That is obviously an appalling concept but at the moment, it is bound up with that right to represent oneself. The danger with that is that a complainant might just say that however bad what happened was, and however much it damaged him or her or how much pain it caused, he or she would rather just draw a line under it and not bother going to court and face that scenario.

This is a reasonable balancing of that right of the accused person to represent himself or herself. Of course, that representation can endure throughout the case, except for the cross-examination of this witness. It is, however, an appropriate balancing of those two rights to say we are not going to require a person to sit there as the very person he or she says has done a heinous thing to that person gets to basically have a pot shot at him or her. While many people have misgivings about the tempering of that right to represent oneself, this is an absolutely proportionate and reasonable approach that will hopefully send out the message to people who allege that crimes have been committed against them. Of course, the presumption of innocence endures throughout all these processes. However, those people who are complainants in criminal trials must receive the message that when they make a complaint, they will be taken seriously and treated with the respect and dignity we all deserve.

Part of what we have been doing in this House since I have been a Member and since the Minister has been in her office is a progression towards every stage of that process improving from the point of view of the victim without at the same time compromising the rights of the person who has been accused. That is a really important balance to be done. Now, however, we can say with reasonable certainty to complainants that if people go to the Garda, they will have somebody who will take them seriously and who will know what they are doing. They will have somebody who will have done it before and will have experience and specific training in this area. Now, if people go to court, they will have a situation where they will be treated with respect and dignity in a way that some victims maybe were not in the past. Amendment No. 20, which the Minister is proposing, is a really important step down that road and a really important acknowledgement of the difficulty for victims in going through the courts process. We hope they will receive the message that we are trying to make it easier while also balancing the rights to which everybody is entitled.