Thursday, 13 July 2017
Criminal Justice (Victims of Crime) Bill 2016: Second Stage
This important Bill marks a change in the approach to criminal law in Ireland, providing for the first time, a comprehensive framework of statutory rights for victims of crime and I am very pleased to present it to the House today.
Under the Bill a victim of a crime will have the right to receive information in clear and concise language on the criminal justice system and the range of services and entitlements available to him or her; the progress of the investigation and any court proceedings; and the release, including temporary release, or escape from custody of an offender who is serving a sentence of imprisonment.
Victims will also have the right to an individual assessment to establish measures that may be necessary to protect them from secondary or repeat victimisation, intimidation or retaliation; and the right to request a review of a decision by the authorities not to initiate a prosecution in their case.
Before outlining the content of the Bill in more detail I would like to provide some context for the legislation. The main purpose of the Bill is to give effect to provisions of EU Directive 2012/29/EU, establishing minimum standards on the rights, support and protection of victims of crime. The EU victims' directive is largely being implemented on an administrative basis by the criminal justice agencies.
An Garda Síochána is central to dealing with victims. It is the first to receive an official report of an alleged crime, and is still with the case when a person is convicted and sent to prison. The establishment of dedicated victim service offices in every Garda division has been an important step in delivering the services victims are entitled to under the victims directive. These offices are staffed by a Garda and a civilian during office hours, making them accessible and predictable for members of the public.
An Garda Síochána has also established divisional protective service offices in three of its divisions. These are staffed by dedicated and specially trained officers to investigate cases of domestic and sexual violence. Once these units have been operating effectively and any teething problems resolved, units will be rolled out to all remaining divisions.
All the criminal justice agencies meet quarterly under the chair of my Department to review progress in implementing the directive and to resolve outstanding issues.
Support for victims of crime is provided initially by the crime victims helpline, funded by the victims of crime office in my Department. The helpline provides information on the criminal justice system, emotional support and referral, where necessary, to face-to-face support for victims of crime. In addition to its service funding, additional money has been provided from the Dormant Account Fund to allow the helpline develop cinema advertising and three short videos for victims on different aspects of the criminal justice system. This complements a range of written material online and the individual one-to-one explanations that are given over the phone by the helpline.
The vital work being done by the wide range of non-governmental organisations in continuing to provide supports to victims of crime is something which I wish to warmly acknowledge this afternoon. These organisations are providing essential support and information to victims of crime, including emotional support, court accompaniment, accompaniment to Garda interviews, accompaniment to sexual assault treatment units, counselling and referral to other services. They provide a hugely valuable source of support to people at what often can be a traumatic time in their lives.
The Government’s strong commitment to supporting this work is reflected in the programme for Government and in the allocation of €1.7 million which my Department provided to fund organisations supporting victims of crime in 2017.
I would like to outline in more detail the content of the Bill. Part 1 of the Bill contains a number of standard provisions concerning the Short Title, commencement, and expenses. In addition, section 2 defines a range of terms used in the Bill. The most significant of which defines "victim" as any person "who has suffered harm, including physical, mental or emotional harm or economic loss, which was directly caused by an offence". This is a broad and inclusive definition which reflects the victim-centred nature of this Bill and the EU directive. The victim is not defined in relation to the offence or the offender but rather by the effect which the crime has had on him or her. The victim benefits from the rights provided under the Bill, whether or not a formal complaint is made or a suspect has been identified. Where a victim has died as a result of an offence, section 2 provides that the victim’s family members may avail of the rights provided in the Bill.
Part 2 of the Bill addresses a very important aspect of the Bill, namely, the victim’s right to information about his or her case. Section 6 sets out a wide range of information which victims must receive when they first make contact with the Garda, or in certain cases, the Garda Síochána Ombudsman Commission. Victims will be entitled to receive detailed information on the criminal justice process and the role of a victim in that process. This will include information on the procedure for making a complaint, where to direct inquiries and the circumstances in which they may be able to obtain protection measures or assistance by way of interpretation, translation, legal aid, compensation or expenses. The section provides that a victim may bring someone with them when first contacting the Garda about an offence, including a legal representative if they wish.
I have already highlighted the vital services provided to victims of crime by victim support groups. This section ensures that victims will be offered information about victim support services and may, with consent, be referred to such services.
Section 7 outlines the information which a victim will receive, if he or she wishes to receive it, to keep him or her informed of the progress of his or her case through the criminal justice process. Victims must be given information on any significant developments in the investigation, including the arrest, charging or release on bail of a suspect, and on any trial and any sentence imposed on an offender. Where an offender is imprisoned or detained as a result of the offence, the victim will be entitled to receive information from the Irish Prison Service, the Central Mental Hospital or a children detention school, in respect of any release, including temporary release, or escape from custody by the offender.
A particularly important right under section 7 is the victim’s right to be informed when a decision is made to end an investigation or not to prosecute an offender and to be given reasons for that decision. Sections 8 and 9 provide that in the case of a decision not to prosecute, the victim will be entitled to seek a review of that decision. This measure is intended to help victims to better understand the reasons that in some cases it is not always possible to get justice. Part 3 of the Bill concerns the protection of victims during investigations and criminal proceedings. Section 11 provides that the victim may be accompanied by a person of their choice, including a legal representative, when making a complaint and must receive a written acknowledgement of that complaint.
Falling victim to a crime when one is away from home can be particularly difficult and there are a number of specific rights to address the needs of victims of crime in member states other than where they live. The Bill also sets out other measures for the protection of victims during interviews and medical examinations.
This is a victim-centred Bill. As such, it focuses individually on the victim and his or her needs. Sections 14 to 18, inclusive, make provision for the assessment of victims and the implementation of protection and special measures identified by the assessment. Each victim will be individually assessed to establish any particular protection needs he or she may have and if they would benefit from any special measures during the course of the criminal proceedings. This assessment will take into account the nature and circumstances of the crime but the focus is on the personal needs of the victim.
The protection needs which may be identified include advice on personal safety and the protection of property, advice on safety orders and barring orders and applications to remand an offender in custody or to seek conditions on bail. Special measures available during an investigation may include carrying out interviews in specially adapted premises, by persons specially trained, by the same person or by a person of the same sex.
The prosecutor must take the assessment report into account in determining whether to apply to the court for special measures such as allowing the victim to give evidence via live television link, through an intermediary or from behind a screen.
The Bill recognises that child victims of crime are particularly vulnerable and provides additional protections for children. In assessing the child’s needs, gardaí must have regard to the best interests of the child and must take the views of the child and his or her parents into account. They must also ensure that a child victim is accompanied by an appropriate adult during interviews and in court proceedings.Other special measures available to victims include a power for the court to exclude the public from proceedings and to prevent unnecessary questioning regarding a victim’s private life. Under the Bill, all communications with a victim must be in simple and accessible language and take account of the victim’s ability to understand and be understood.
Part 4 amends a number of other Acts. Provisions of the Criminal Evidence Act 1992 are extended to facilitate the increased use of evidence via live television link, through an intermediary or from behind a screen. Further amendments to the 1992 Act will be introduced on Committee Stage to take account of changes introduced by the Criminal Law (Sexual Offences) Act 2017 since the publication of this Bill. The Criminal Justice Act 1993 is amended to extend the right to make victim impact statements to victims of all offences or, in certain circumstances, their family members. The Bill also amends the Courts Service Act 1998 to require the Courts Service to make arrangements for the separation of victims and their families from offenders in the course of criminal proceedings and to provide separate waiting areas for victims. In addition, several statutes are amended to ensure that a support worker may always remain in court with a victim.
Before I conclude I would like to thank all of the criminal justice agencies who have a role in providing services to victims under this Bill for their assistance in developing these proposals and implementing many of these rights on a non-statutory basis since the EU directive came into force in November 2015. I also acknowledge and thank the many victim support groups and community groups who have contributed to the development of this Bill over a number of years. Victims need to be treated with respect, courtesy and sensitivity. They need information on the criminal justice process and their role within it and they need to receive that information in a manner which they can readily understand. Victims need to have a voice in the process and they need to know that someone is listening to them. Victims also need to feel safe, to be protected from further victimisation and to receive appropriate support tailored to their individual needs.
This Bill will ensure that victims have a statutory right to have these needs met in a timely, professional and sensitive manner and I would ask Senators to support its passage through the House. I commend this Bill to the House.
I welcome the Minster of State, Deputy Stanton, to the House. Fianna Fáil will be fully supportive of this legislation. We believe that it is long overdue. As the Minister of State has stated, it transposes into Irish law the EU directive which establishes minimum standards in respect of the rights, supports and protection of victims of crime. We believe that the victims of crime need to be fully supported at all times. Too often the justice system seems to be balanced in favour of criminals and repeat offenders while ordinary people who fall prey to criminality are very often left unrecognised. While we are supporting this Bill, we have a number of amendments which we will bring forward on Committee Stage.
There is often a feeling that our laws do not do enough for victims and that they are not consistently applied. A criminal act leaves a victim vulnerable and, often, in need of assistance. Very often victims feel that they have been left on their own. A victim is often involved in the criminal justice system for the very first time and may have to speak to members of An Garda Síochána, solicitors or other professionals and ultimately go to court. This can be a daunting experience which can add to levels of distress. In Ireland, a person who has been the victim of a crime receives a letter from An Garda Síochána which acknowledges that they are a victim and informs them that the matter is being investigated. This letter offers them information on how to follow up should they need to do so.
I welcome the fact, which the Minister of State has outlined, that in addition to this, and as a result of this legislation, the victim will have rights including: the right to receive comprehensive information on the criminal justice system and his or her role within it; the right to a range of services and entitlements which he or she may access; the right to receive a written acknowledgement of the making of the complaint; the right to be provided with information concerning the progress of the investigation and any court proceedings; the right to be informed of any decision not to institute a prosecution in respect of an offence committed against him or her and the right to request a review of that decision; the right to receive information on the temporary release or the escape from custody of an offender serving a sentence for an offence committed against the victim; the right to receive information in clear and concise language; and the right to interpretation and translation where it is necessary to enable the victim to understand and to be understood, particularly in the criminal justice process.
As the Minister of State mentioned in his contribution, transposing this EU directive is about ensuring that victims are recognised and treated with respect and dignity. They are two of the most important words in the Minister of State's contribution. It is also about ensuring that victims are protected from further victimisation and intimidation from the offender and further distress when the victim takes part in the criminal justice process.
This is an EU directive. The Bill enshrines the directive, which gives these particular rights to victims, in Irish law. I understand all these same rights apply in all other EU countries. Is that the case? Have all European Union member states transposed this directive into national legislation in their own jurisdictions? In respect of Brexit and whether it will go ahead, which it seems like it will, how will Irish citizens who are victims of crime in mainland Britain and the Six Counties of this island which are under the British Government's control be treated? If Brexit happens this EU directive will no longer have any effect in that jurisdiction. Will the Minister of State answer that question? I say again that we will be bringing forward a small number of amendments, which we believe are relevant, on Committee Stage. We will be fully supportive on Second Stage.
I thank the Minister of State, Deputy Stanton, for a comprehensive overview of the Bill which clearly sets out many of the points involved. As a group of Independent Senators we will be bringing forward a number of amendments on Committee Stage. We are working on them. We have been talking to and engaging with a number of organisations which represent victims of crime. When talking to victims, one learns at first hand of their personal experiences and of some of the nuances of things that we, as legislators, perhaps do not always think about. The key message I take from what the Minister of State has said, and the message which is already in the Bill, is that this is about a voice for the victims. This is to empower victims and to give them a voice. This is about dealing with their concerns in an appropriate and timely manner. That has to be welcomed.
Clearly, the objective of this Bill is to transpose into Irish law the 2012 EU directive which established the minimum standards for the rights, supports and protections of victims of crime. When one looks through the Bill and teases it out in simple language, which is also very important, it introduces statutory rights for victims of crime for the first time. It introduces and talks about the establishment of a statutory definition of a victim for the first time. It provides victims with a right to certain information about their case from when they first make contact with the competent authority. It is worth mentioning the competent authority because I will be returning to that concept to clarify and qualify it in a moment. The Bill allows the victim to make a complaint about any investigation during the criminal proceedings and following a conviction, if applicable. It allows a victim the right to request a review of a decision not to proceed with a prosecution made by the Director of Public Prosecutions, the DPP, or by An Garda Síochána. It makes provision for a victim to avail of protection measures during investigation and criminal proceedings. It provides that all victims must be individually assessed to ascertain whether they would benefit from the protection of special measures during an investigation. That must be welcomed.
It provides victims with a right to avail of interpretation and translation services. The Minister of State spoke about language and about being listened to, heard and understood. That is very important in terms of victims telling their stories. The Bill makes certain important amendments and makes provision for giving evidence in court from behind a screen, via in intermediary or via a television link-up. That is also an important measure.It extends the right of giving victim impact evidence to any person who has suffered harm as a direct result of a criminal offence. This is right, appropriate and important.
I will make two or three other points on which I have been advised and I want to share it with the Minister of State. Article 4 of the victims' directive relates to the right to information and provides that all victims of crime have the right to certain information on first contact with the competent authority. I mentioned that a moment ago. The competent authority is not defined in the victims' directive from the European Commission, with justice guidelines giving an indication of what should fall within the definition. The term "competent authority" is broader than "the law enforcement authority", or police in this case. The competent authorities acting in criminal proceedings under this directive are determined by national law. This does not exclude, for example, customs or border agencies if they have the status of law enforcement authorities under national law.
Will the Minister of State clarify that the Criminal Justice (Victims of Crime) Bill only applies to investigations conducted by the Garda and the Garda Síochána Ombudsman Commission and that it only deals with those two groups? Such a restriction prevents victims from accessing criminal prosecution in any other form of prosecution or investigation; any statutory authority with the potential power to prosecute a criminal offence would fall under the remit of section 4 of the victims' directive, dealing with the right to information. There is a significant list of bodies falling within that remit, including but not limited to the Health and Safety Authority, HIQA, Tusla, the Health Service Executive and ComReg, for that matter. These bodies have the power to investigate and prosecute criminal offences. Victims should be provided with information from these prosecuting authorities in accordance with Article 4 of the victims' directive. Will the Minister of State consider a recommendation that "investigating authorities" should be substituted in the Bill in place of mentions of the Garda Síochána and Garda Síochána Ombudsman Commission? It is an important issue that I am putting to the Minister of State at this early stage so he might reflect on it.
I will also speak about reporting on training given to gardaí and authorities, which is important. There are clear measures regarding reporting and training for Garda authorities. The victims' directive states: "Without prejudice to the judicial independence and differences in the organisation of the judiciary across the member states, member states should request that those responsible for the training of judges provide general and specialist training to increase the awareness of judges and prosecutors for the needs of victims." There is a Government proposal for a judicial council, and potentially it is an area that such a judicial council could look at. It is certainly envisaged in Mrs. Justice Susan Denham's recommendations for judicial council. The Minister of State might bear that in mind. Of course judges must have ongoing training, which is important, and I do not suggest they would not want it. They would want it.
There is the issue of access to information. Throughout the Bill, references to the Garda Síochána should be replaced with references to the "investigating authority". This matter was raised by a number of groups and it did not originally come from me. It is something the Minister of State might take on board. There is mention of referral of support and information services. The Bill indicates gardaí "may" refer a victim to support and information services, meaning it is ultimately discretionary. I suggest this could and should be changed to "shall". The Minister of State might also take that on board.
I will wrap up with a final request that has been asked of me. There is an idea of a one-stop shop for victims of crime and a designated ombudsman to deal with such issues. The Minister of State indicated, as mentioned in the Bill, that we must never forget the victims of crime, and children and minors, in particular. We are seeing a growing number of them being affected by serious crimes. There is a case for specialist support and training for this particular category. All victims suffer and need support. In essence, this is good legislation. It may need some tweaking and that is what the parliamentary process is about. I wish the Minister of State well.
The Minister of State is always extremely welcome here on his regular visits. He has come here today with extremely important legislation. It is transposing a European directive on victims of crime into Irish law. Much legislation coming here is a result of European directives, which is one of the great benefits of our membership of the European Union. The importance of looking after victims of crime is something we have not prided ourselves on; we certainly have not crowned ourselves in glory in that respect over the years. The first effort made to do anything constructive to assist victims of crime was when Mr. Derek Nally, who ran for the Presidency at one stage, set up an organisation called the Irish Association for Victim Support. At the time he got quite a bit of publicity. To be fair, it did very good work but issues have become more complex since then and they require a much more comprehensive response. It is a very welcome development that the rights of victims will be enshrined in legislation.
Much of the trouble victims have arises from not getting information. They might be constantly ringing a Garda station and not being put through to the people looking after the investigation. They might not know when somebody is going to get temporary or compassionate release. They might be walking down the street and suddenly see on the other side of the street the perpetrator of the crime on temporary release, which is totally unacceptable. It should not happen. To be fair to the courts and the Irish Prison Service, it does not happen as a rule. We will enshrine it in legislation to ensure it does not happen.
The Cathaoirleach will remember, as the Minister of State will from when he was Chairman of the joint committee dealing with justice, that we had a presentation from a number of victim groups. One that stands out in my mind was from a group that presented on tourists who were victims of crime. At that stage, there was a proposal for a designated office in the capital city which would deal with tourists who were the victims of crime. Perhaps the Minister of State might update the House on whether the organisation still exists and whether the work it hoped to do is being done. The problem with a tourist who is a victim of crime is that English may not be his or her native language and passports and travel documents may be stolen. In such cases, embassies would be involved and the process could become quite complicated. A designated "one-stop shop", to quote Senator Boyhan, to deal with victims of crime who are tourists in our country would be extremely important. It is bad enough for them to be victims of crime but if the State lets them down, it is double the crime.
By and large, the measures in the Bill are strong and welcome. I note colleagues have suggested amendments and those which strengthen the legislation would be very welcome. I appeal to the Minister to be proactive in dealing with amendments that come from colleagues on the other side of the House. Everybody wants to protect victims of crime as much as he or she can. We have a duty of care to our citizens who fall victim to crime to ensure they are properly treated and well looked after.
Senators Boyhan and Wilson mentioned the issue of minors and children being victims of crime. For too long in this country children have been the victims of crime and have not been listened to. It is great that the Irish Courts Service is taking a far more humane approach to dealing with children who find themselves in the very unfortunate position of having to give evidence. Most judges, from my experience or understanding, are tender and gentle in engaging with children.It is no harm to have these measures enshrined in legislation because it takes only one bad egg to spoil things for everybody. The purpose of this legislation is to ensure that no victim suffers more than they have already suffered as a result of a crime. I hope the Minister of State, Deputy Stanton, will be taking all Stages of this legislation through the House because having served with him on the Joint Committee on Justice and Equality I know he has a unique understanding of the challenges faced by the victims of crime.
Mura miste leis an Chathaoirleach, tá mé dul an óráid seo a léamh ón táibléad. Ní raibh seal agam é a chló, ar an drochuair. I welcome the Minister of State to the House and ask for his indulgence as I will be reading my speaking notes from my tablet.
Sinn Féin welcome this Bill, which should have been introduced a long time ago because the deadline for implementation by this State of the EU victims' rights directive 2015. There is no excuse for this delay.
The Garda Inspectorate report 2014 outlined serious deficiencies in An Garda Síochána's approach to the victims of crime. The report also noted that while front-line gardaí and detectives may recognise and believe in the importance of keeping victims updated, they often could not find the time to do so. Much of this is down to resources. The success or otherwise of what is provided for in this legislation will also hinge on whether there are resources to follow it.
Too often, initiatives by this State in the criminal justice area are more about being seen to be doing something rather than having an impact on the original objective. There is a danger that if victims' rights are not resourced adequately this legislation will fall into the same category. Up to now, there has been an inconsistent approach in the manner in which gardaí have updated victims and there are no official guidelines on how and when this should take place. The EU victims' rights directive is a useful mechanism to frame practice in this area. I urge the Government to ensure that this legislation complies with what is required by the directive. Once the requisite changes are made to ensure it is compliant, I would urge the Minister to publish an implementation plan to demonstrate how it will be work in practice.
In my role as a public representative I have had interaction with people who have been victims and not sought assistance because they felt they were not listened to by the authorities. This will be an increased feature of public life given that people are becoming more uncomfortable with the idea of speaking out when they have been wronged by employees organisations that are agents of the State and those charged with investigating crimes, including not only members of An Garda Síochána but members of the Health and Safety Authority.
Too often people struggle not only as a consequence of the crime perpetuated against them but also as a consequence of their not being listened to or not receiving support in the aftermath. Historically, the emphasis in the criminal justice system has been solely on the rights of the accused and the rights of the prosecution, with victims merely playing the role of witness to the crime perpetrated against them. Sinn Féin is not seeking a fundamental alternation of the mechanisms of the criminal justice system, rather it is seeking to ensure that the rights of victims of crime in criminal proceedings are upheld. It is Sinn Féin's view, and the view of the EU, that the State has an obligation to uphold these rights. I know that the Minister of States accepts this. The victims' rights directive, if implemented in full, would give the victims of crime a codified set of rights, supports and protections to safeguard them and their families in criminal law proceedings.
Sinn Féin commends the victims' rights movement in Ireland but we do not want to see their legitimate concerns and calls for victim protections appropriated by the introduction of what effectively boil down to legislative soundbites. It is unfortunate that we are not dealing with the parole Bill in tandem with this legislation. We are constantly hearing that An Garda Síochána does not have the resources to do many things. How can it be expected to effectively assist victims when resources is an issue? This Bill is a good move but I believe it falls short of what is needed. For this reason, I ask the Minister of State to consider the formulation of an implementation plan.
Where a victim has consented to referral to a victim's support service but the garda involved in the case "could not or would not" make this referral, there is the potential that the victim will feel the same as he or she would have had the legislation never been passed, re-victimised and ignored by the system which is meant to assist him or her. The directive is clear on this issue. For this legislation to comply with it, that wording would need to change. Where consented to, referral must not be open to discretion. If this is to be recognised as a right, then it cannot be dismissed owing to the State's unwillingness to allocate the resources to uphold it.
There is no statutory scheme for restorative justice in this State. We welcome that Report Stage of this Bill allowed for the inclusion of the scheme sought by Sinn Féin. It was hard fought. We need a restorative justice scheme and we need it to be effective in meeting the needs of victims and ensuring that offenders are accountable for their deeds in a way that will reduce re-offending. Resources and training will be key in this regard. Sinn Féin sees an increasingly important role for restorative justice in the justice system of a future united Ireland. We know that in many cases it is more socially effective than retributive justice as it results in higher victim satisfaction, lowering instances of repeat offending and greater chances of offenders' rehabilitation and reintegration into their communities.
This restorative dimension leads to much higher levels of victim satisfaction with the process. This is principally because restorative justice, wherever possible, involves all those who have a stake in a specific offence. It aims to collectively identify and address the resulting emotional, physical and financial harm and associated needs and obligations of all involved to ensure the victim or victims get more direct redress.
Sinn Féin has a number of concerns regarding what is not included in this Bill and, like other colleagues, we will be bringing forward amendments which we are confident will enhance the legislation. I know we will pushing against an open door with the Minister of State, Deputy Stanton.
I welcome the Minister of State, Deputy Stanton, to the House. I also welcome the opportunity to debate this important Bill with him, which the Labour Party supports. As said by other speakers, this Bill is long overdue but nonetheless it is extremely welcome. It represents an increasing move towards recognition of victims' rights in our criminal justice system, which is a welcome development.
Others have spoken about the origins of the victims' rights movement in Ireland and the role played in this regard by Derek Nally and many voluntary organisations and NGOs, which the Minister of State acknowledged in his contribution is hugely important to mention. We have now moved to a point where victims' rights need to be enshrined in statutory format. For this reason, this legislation is important.
At this point I should declare an interest having researched in the past and published on victims' rights in the rape law process, in particular the rape trial process in 1988, and more recently with colleagues in Trinity College around victims supports more generally, one of the findings of which was the difficulty in terms of accessing services for victims on a practical basis across Ireland. Given much of the service provision in this areas has been traditionally provided by voluntary groups, the service is rather patchy. The increases in funding mentioned by the Minister of State are welcome. While the picture in this area has improved considerably in recent times there has been a difficulty over many years in accessing victim supports, including for court accompaniment which is time intensive and in many cases is undertaken by members of local rape crisis networks and so on. These services, where provided, have been very important. As I said, the difficulty has been a lack of consistency in their provision nationally.
We know from the work done by NGOs and academics on victims' rights, particularly in our own system, that there are three serious difficulties that have arisen. This Bill seeks to address those difficulties. The first is a lack of information for victims within the process. This is the key issue which the Bill will address significantly. I know from the rape study in which I was involved that victims felt excluded not only from decision making because the DPP must exercise decisions independently and impartially, but from information in regard to how a process is unfolding, why a prosecution is not being taken or why an offence reported as rape is being prosecuted as a sexual assault. This type of information has all too frequently been lacking and unavailable to victims and they felt excluded as a result.
The second difficulty is the victim's lack of voice in terms of putting forward his or her own perspective. Within our system, the victim is a witness for the prosecution and no more than that and he or she has no entitlement to legal representation. I should point out that there is a small exception in that regard, following lobbying by the Rape Crisis Centre in the late 1990s under the Sex Offenders Act 2001, whereby a complainant in a rape trial has the right to separate legal representation where she or he is likely to be cross-examined as to prior sexual history.We have that limited entitlement to legal representation but it is in a very limited situation.
That brings me to the third difficulty, which is a bigger difficulty than this Bill could hope to address. I refer to the nature of our adversarial criminal justice system. As the Minister of State is well aware, our system differs from the system used in many continental European countries where the criminal justice process is run on an inquisitorial basis and, as a result, one sees much less forceful cross-examination of complainants or victims in the stand by counsel for the accused. The Irish system is a due process based system that has cross-examination built in. We must be conscious that research into victims' experiences in Ireland, Britain and other adversarial systems shows a serious problem. It has often been called a secondary victimisation. Individuals feel they are on trial because they have been cross-examined so aggressively, in some cases, by counsel for the defence. That is a real issue when trying to protect victims in our system and it is a much bigger issue.
In many ways, the Bill seeks to address not just the lack of information and lack of voice but the more detrimental aspects of the adversarial system for the victim, which is welcome.
Section 6 deals with the right to receive information at the first point of contact, which is welcome. Senator Boyhan raised an issue that the Victims' Rights Alliance has raised with many of us, namely, the fact that currently the Bill appears to only apply to the Garda Ombudsman Commission. There are other prosecuting bodies like the Health and Safety Authority. I know this matter has been raised in the Dáil. I ask that other bodies with the statutory authority to prosecute are included within the remit of the Bill. The directive appears to envisage that they might be.
Section 8 is hugely important because victims will now receive information from the Garda or the Director of Public Prosecutions on a decision not to prosecute. The DPP had operating that for some offences, although on an informal basis. It is a hugely important measure for victims.
I refer sections 13 to 16, inclusive, on the way the Garda conduct interviews with victims. These are very useful and important provisions. It must be recognised, and perhaps it is absent from them, the fact these victim interviews, as they are referred to, in practice in the Irish system will, in many cases, form the basis on which individuals or the accused persons are prosecuted. The statements will enter the book of evidence. If there are a number of statements or interviews with the victims, as envisaged by these sections, and frequently in practice there are a number of interviews, discrepancies between the statements that arise from the interviews will be picked apart during cross-examination by the defence. We need to be cognisant of the fact that in our system victim interviews are hugely important as a basis for prosecution and as a basis on which victims will be cross-examined later in court. Perhaps the provisions that stem from the directive do not quite take that fact into account. I know we will have time to tease out these issues in more detail on Committee Stage.
Sections 18 and 20 are welcome and they refer to a court having discretion where a victim is questioned about his or her private life. How do we square that with the current rights of the accused to question a victim on prior sexual history? We have tried to protect victims by building in protections in the legislation. However, we have seen aggressive questioning on sexual history. It is a very unpleasant secondary victimisation for complainants in sex offence trials and deters people from making allegations. We must consider how these important measures will affect the criminal justice practice based on our own model.
I refer to the resource implications, which others have mentioned. Resources are a huge issue. The Bill rightly envisages that there will be a significant additional implications for the Garda and DPP's office as witnesses and victims will have formal rights vis-à-visthe Garda. We need to ensure the Garda is fully resourced to do so. We need to address the Garda Inspectorate's report. The Minister of State is a former Chair of the Joint Committee on Justice, Defence and Equality. Senator Martin Conway and I were also members of that committee. Therefore, I know that the Garda Inspectorate met the committee to discuss its very comprehensive 2015 report. On that occasion, it identified serious concerns about the recording and investigation of offences by the Garda, and about attrition in domestic violence, which was a point that was picked up by Professor Evan Stark during his recent visit to Ireland. Also, the misrecording of offences, and the difficulties and failings in the Garda prosecution and investigation of individual criminal offences. We must be mindful of resource implications. I would like to know when the Bill will be commenced because one must be clear that enough resources are in place before it is enacted. Section 1 envisages that the legislation will come into effect on being commenced. Clearly, the legislation must pass through the Houses first. When is it proposed that the legislation will come into force?
As always, I am very impressed with the work and thought that Senators have put into this legislation. I listened with interest to what Senators had to say about the Bill and thank them all for contributing to the debate. I am very pleased and grateful that the Bill enjoys wide support in the House. The Bill has already been improved by the contributions that Members made in the other House. I know that the Minister is open to considering proposals that would further improve the Bill and the rights and protections for victims, which it provides. That is the bottom line.
Senator Wilson asked for the number of European Union countries that have transposed the directive. I am not sure but we will get that information to him at some stage. As Senators will know, the Brexit situation is changing all the time but there have been developments today. I understand that the UK has transposed this directive into national law. The directive may not be in force in the UK after Brexit but victims' rights are protected under national law. None of us knows how Brexit will play out. I hope that my response has answered the question raised about Brexit.
Senator Wilson also mentioned that appearing in court is a daunting experience, and Senator Bacik and other Senators made the same point.
Senator Boyhan said he will table amendments and I await them with interest. He said the voice of victims and the definition of "victim" are important. He also made a point about a competent authority, and Senator Bacik also raised the matter. We are talking about expanding the scope of the Bill to other investigating and prosecuting authorities. It has been suggested that the scope of the Bill should be expanded to include other bodies with a role in the investigation or prosecution of a criminal offence. I do not believe that is required by the directive. The EU directive is targeted at criminal offences. Under continental justice systems, there is generally a distinction made between criminal offences and civil and administrative offences. The same distinction is not present in this jurisdiction. That does not mean the directive should have a much wider application here than in other member states. For that reason, the Bill focuses primarily on applying the provisions of the directive to victims of criminal offences that are reported to the Garda.
I acknowledge that other agencies and bodies have investigation and prosecution functions such as local authorities, some Departments, specialist authorities, Revenue, etc. To cover all those agencies would go far beyond the intended scope of the directive and it might not be of great help to victims. We can discuss the matter further if amendments are tabled. I suggest that Senators reflect on what I have said. The term "investigative bodies" is very general. I suggest that Senators specify each one but then that might pose other difficulties.
Senator Ó Donnghaile mentioned that the mandatory referral of victims to support services is required. That is not the case under the directive. The directive requires member states to facilitate the referral of victims to victim support services. This is implemented in the current legislation by requiring the relevant authority to offer every victim information on services that provide support for victims of a crime and in section 6(8) by establishing a system whereby a victim can be directly referred to a victim support service where that is necessary. We must bear in mind that a system that provides every victim with information about victim support services, and directly refers only those who have a particular need of such referrals, strikes the appropriate balance and meets the needs of victims and respects their autonomy. One must recognise that not all victims, especially those in the case of minor crimes, will require specialist support. We must strike a balance and I suggest we tease out the matter.Senator Martin Conway mentioned the Irish Tourist Assistance Service, which is still in operation and doing a very good job. I recall its representatives appearing before the Joint Committee on Justice and Equality and making a very strong case for the important work it does.
I have listened carefully to the contributions of all Members. The interesting points made by Senator Ivana Bacik about the protected rights of accused persons should be reflected on and considered in looking at how the rights of both the victim and the accused are protected during cross-examination, particularly in view of the adversarial nature of the justice system.
I thank Senators for their contributions and support in what has been a very interesting debate. I look forward to the issues raised being discussed on Committee and Report Stages. I am unsure whether it will be me or the Minister who will be present, but there has been a good debate on the very important issue of victims being looked after, informed, having a voice and being protected. In that regard, it is always important to have adequate resources available. As I said, much of this is happening on a non-statutory basis. A lot of good work has been done and resources have been allocated, but there can never be enough. There will always be a need for more, no matter how many are made available. The Government is committed to providing support in dealing with this very important issue. Similarly, restorative justice which was also mentioned is important and part of the matrix in assisting and helping people in working their way through the criminal justice system.
I again thank Senators for their contributions and wish the Cathaoirleach well during the summer break.