Seanad debates

Wednesday, 27 April 2022

Criminal Justice (Amendment) Bill 2022: Second Stage


10:30 am

Photo of Regina DohertyRegina Doherty (Fine Gael)
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I move: "That the Bill be now read a Second Time."

I am sharing time with my joint sponsors, Senators Chambers and Pauline O'Reilly.

In far too many ways our criminal justice system is a cold place for the victims of violent crimes but none more so than women. It is a very harsh system for women to navigate, especially when it comes to sexual and gender-based violence. We know the victims here are mostly women and children. Globally, one in three women experience physical or sexual violence. At home, there were 855 disclosures of sexual abuse made to Women's Aid services in 2020. That included 340 disclosures of rape. Those were right here in Ireland. The numbers are staggering. The reason they are really staggering is they are probably only a fraction of the actual figure for sexual violence and rape in the country.

Tragically, only half of the women who get to make these complaints feel they can get the help when they seek it. In short, we have a system that effectively puts our victims on trial. We have a system where a woman is expected to relive her experience of sexual assault as it is recounted in the courtroom. We have a system where the victim is required to defend her own sexual life and sexual activities prior to, and presumably since, the assault. This is all while testimonies and references in support of the accused are read out for everybody to hear. Some of those references include stories about how the abuser, acknowledged at that stage in the trial as a rapist, is a great chap altogether. The court might hear how he played for the winning team in the county finals or how he is a super team player and comes from a good local family or how he studied hard in school or volunteered for local charities, etc. Absolutely none of that matters. It is irrelevant. It does not matter how much of a diligent worker a rapist is, or if he is a gifted sportsman or cherished volunteer. It only matters that he has committed one of the most heinous crimes against women and that he is now guilty. He has been found guilty of the rape at this stage of the court proceedings and therefore he is a rapist, end of, and that is all that matters. It is high time we stopped pretending otherwise.

In drafting this Bill, my colleagues and I worked very closely with Ms Noeline Blackwell, CEO of the Dublin Rape Crisis Centre. I genuinely thank her for her wisdom and expertise but most of all for the support she has given this Bill and the tireless work she and her colleagues give to the women and girls of Ireland. We agree character references make the process of going through a trial even more difficult and strenuous for victims of sexual crime. They are provided before sentencing as if in some way to mitigate the crime and make it easier for the offender to get a lesser sentence. I have spoken to a number of members of the legal profession, namely, barristers and solicitors, who have seen time and time again how these cases play out. They say despite the intentions of those who give character references in the courtroom, judges tend not to give them much weight, and for that I am genuinely thankful. However, under our criminal justice system character references have almost become customary in the trials of those accused of sexual and violent crimes. It is a pointless ritual that has no real effect other than to retraumatise the victim as she sits there in the courtroom listening to what a wonderful chap her rapist is and how he simply made a mistake.

We have a justice system where the accused is innocent until proven guilty and for that I am grateful. Above all, we afford certain rights should any of us find ourselves defending our good name and I grateful for that also. The Criminal Justice (Amendment) Bill 2022 does not seek to take away those rights. It is simply trying to even the playing field in respect of cases where a woman feels she is up against not just the man who has abused her and his defence team but a whole congregation of other people who may sing the praises of somebody they think they know. There have been too many instances where character references have distracted from the trials of people who have been accused of some of the most horrific crimes in Ireland. In some cases, to distract even further from the crimes, high-profile people have put in character references in an attempt to somehow embellish the character of the defendant. I am ashamed to say politicians have done it. Community leaders like GAA coaches have done it and on occasion, even our bishops have done it.

It is true we cannot stop these influential figures from providing character references in court but what we can do, and what this Bill seeks to do, is consider the victim who must sit in the courtroom and listen to these stories about the person who has caused them so much harm and emotionally scarred them. That is why the first aim of this Bill is to ensure any character references made before the court are made under oath. I hope this extra safeguard will make people take extra care and consideration when they are writing their character reference. It might even make them think twice about submitting it at all. Second, the Bill aims to make it possible for the prosecution to cross-examine any character references given in court. One cannot just say what one wants and allow it stand as being truthful. If a person is going to provide a character reference in a rape trial then it must be accurate and, more importantly, relevant to the sentencing. The evidence must be related to maybe counselling taken by the accused since the rape took place to go towards mitigation but glowing personal references going unchallenged cannot be allowed.

The aim of this Bill is to make a small but I hope meaningful dent in the enormity of the work we must do to support victims in their journey through the criminal justice system by making it less traumatic and less retriggering. What we are trying to do here is much larger than just legislative change. We are trying to change a culture in Ireland that puts victims on trial and has for far too long given our offenders an easy way out. This Bill is only part of that change but it is long overdue. I point out we have a female Minister for Justice and she has gone a long way in the last number of years to try to highlight this issue and address some of the changes. We have three Government parties that are led by women in this House. That is why it is an instructive and important sign to send out to the women of Ireland that we take this issue seriously and I hope it gives a sign of intent. I commend Senator Chambers in particular for her successful result with the stand-alone stalking and strangulation offences that were acknowledged by the Cabinet last week. For the person defending his or her name against accusations of sexual or violent crimes, having friends in high places should mean nothing in court.Only the factual evidence should mean anything. To support organisations such as the Rape Crisis Network and Women's Aid, we need to change the culture and stop putting victims on trial. It is time to start empowering our victims and to make the path to true justice in the country easier. I commend the Bill to the House.

Photo of Aisling DolanAisling Dolan (Fine Gael)
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I thank the Senator. She is a strong advocate for women's rights.

Photo of Lisa ChambersLisa Chambers (Fianna Fail)
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It is great to have a woman in the Chair for the debate. I commend Senator Regina Doherty on bringing this legislation before the House and I thank her for asking Senator Pauline O'Reilly and I to work with her. It has been a privilege to work on the legislation. It is needed. It is amazing that the position has not been changed before now and this that trial process has been allowed to stand. The Minister has heard from Senator Doherty why this has needed, and that she has full support for this Bill from Noeline Blackwell from the Dublin Rape Crisis Centre, who we all agree is exceptionally experienced in this area and has significant credibility.

Sexual violence and rape are all too prevalent in society. The victims are predominantly women and girls. No matter how well we try to conduct it, the trial process traumatises and retraumatises victims. Many do not come forward to report sexual assault or rape because they do not want to go through the justice system. They have been put off engaging with it because of all the negative reporting over the years. There was a recent high profile case, which we could call the Belfast rape case. I will not go into its details. Needless to say, we could all agree that any victims looking at that process would have been frightened to come forward to put themselves through a similar process, regardless of what one's view was on that case. We need to work to increase the reporting of rape. We know it happens more often than is reported, as Senator Doherty said. We need to increase prosecutions so that victims can get justice.

As Senator Doherty also stated, this Bill tries to level the playing field. It is hard to comprehend that when a trial is concluded and somebody is a convicted rapist, there is a period before sentencing where people can trot into court to say how great that person is. It is remarkable. That cannot really be called evidence or testimony. It is untested and unverified. The victim has to sit and listen to it and has no opportunity to ask any questions or counter any of what is put on the record. That is grossly unfair and unbalanced. All we are doing is empowering the victim and the prosecution team to at least be able to test and validate what has been put on the record of the court. I take on board what the legal profession has said. As a barrister, I have witnessed some of these trials. I know judges use discretion and do not put huge weight on these statements. One then has to ask what it is all for, if judges do not listen to it. Judges are human beings like the rest of us. It is hard to say with absolute certainty that this has no impact on their decision afterwards. Nobody could give that assurance with complete certainty. It is important that there is an opportunity for the victim and the prosecution to test the veracity of what has been put on the court's record and not allow a complete free-for-all. As Senator Doherty said, someone can get the local bishop or GAA chairman to come in and say what a great guy he is.

We need to deal with the fact that so many women do not come forward to report these crimes. The only way to absolutely assure an increase in both reporting and the number of prosecutions is to make the courts a safer space for women. Unfortunately, we know that in a rape trial the defence will often - though not always - seek to discredit the victim by bringing her through the trial process, make her out not to be a credible witness and completely humiliate her, thereby making it really difficult for her to get justice. We have to tackle that. It is difficult, because one is balancing it with the right of the accused to have a fair trial and clear their name if they have been wrongly accused. For the most part, it is very rare for somebody to make an accusation of rape where it is not true. Nobody in their right mind would put themselves through that process without very good reason.

Much is to be taken from the fact that three of the party leaders in the Oireachtas are women. We have a female Minister for Justice. Just this week, when speaking about the legislation on stalking and strangulation, the Minister reiterated the Government's position that we have a zero-tolerance approach to sexual crimes, sexual violence and rape. If that is the case, then we need to do everything we can to increase reporting and prosecutions. Until we redress the imbalance and address the traumatising trial process that is currently in place for victims, many women will continue to stay silent, to suffer in silence and to not get the justice they deserve.

I commend the Bill to the House. I thank Senator Doherty for asking me to be part of it and to put my name to it. I commend her on the significant work that has gone into getting this Bill to where it is. I have no doubt that it will get cross-party and Independent support from across the House.

Photo of Pauline O'ReillyPauline O'Reilly (Green Party)
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To reiterate what Senator Chambers said, I thank Senator Doherty sincerely for coming to me and seeking my support to sign this Bill and work with her. I thank her office for the tireless work it has done. I also thank Noeline Blackwell.

Character references come from a time when the legal system had strong views on who was respectable, and therefore worth believing, and who was not. They come from a time when the opinions of other respectable people or so-called respectable people in one's community mattered and often translated into a view of who could be believed or not. That time has passed. We must ensure our legal process reflects that. It is hard to pursue a conviction for sexual abuse. The number of prosecutions is very low. We need to ensure that we take away all of the barriers, both perceived and real, because it is difficult for a woman to come forward with these cases.

I will give a few examples of cases. Putting what we are talking about in real terms is important. Remember that these are all people who have been convicted of rape or sexual assault. They are not cross-examined, unlike the victims, who usually have to go through an ordeal where their sexual practice, the clothing they wear and so on all seem to be up for debate and public scrutiny. In Dublin in February of this year, 23 character references from across a community painted a picture of a good, respectable, hard-working man. They described him as a dedicated, honest and trustworthy person after he was convicted of sexually abusing three teenage girls who were friends of his children. In April 2021, in Dingle in Kerry, character references came from across the community, including from the GAA, in support of the character of a man who was convicted of raping a woman in her own home, which he was permitted into as he was a friend of the family of the victim. In 2017, in north Dublin, a sports journalist who had worked for The Irish Timespleaded guilty and was convicted of the sexual exploitation and defilement of a child. The offender groomed that child from when she was 14. He sent her thousands of messages and picked her up from sports matches in order to abuse her. Character references were provided by other high-profile journalists at the time. These are just a few examples of what we are talking about. These matters are in the public domain.

Photo of Mark DalyMark Daly (Fianna Fail)
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We do not want to make people identifiable. I thank the Senator.

Photo of Pauline O'ReillyPauline O'Reilly (Green Party)
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This is why we are introducing the legislation. It is important to put that on the record. We are all honoured by Senator Doherty's dedication in introducing the Bill. Hopefully, everyone across the House will support it. It is an honour to have a Leader and Deputy Leader of the Seanad who are women. These are changing times. The Seanad can be the face of and give voice to the change that we require in our society to move forward and truly protect women. The three of us are also members of the Joint Committee on Gender Equality. We will work tirelessly on all of the issues related to violence against women.

Photo of Sharon KeoganSharon Keogan (Independent)
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I welcome the members of the public who are with us today, particularly Rachel and Emma. I thank the drafters and proposers of this Bill. It touches on an important, raw area of our justice system. The persons who have to engage with that part of the justice system must be treated with the utmost care and respect.We have known for some time that there is much room for improvement when it comes to the mechanics of prosecuting sexual offences in our courts. The courts system, based on the discovery of truth through questioning, is inherently adversarial. How can we reconcile that with an approach that shows due care to the victim and avoids unnecessary trauma? The Bill seems to be a step in the right direction.

Central to this Bill is the recognition that our courts should only accept testimonies that people are willing to stand over and defend. No doubt, if this Bill is passed we shall see a chilling effect in the giving of a character evidence, and the hope that it is proportionate and in the interest of justice. It is essential that persons who seek to give such evidence do so under oath and that such evidence is open to examination. Additionally, the need to stand over a character evidence should limit applications to such people who really know the offender. We are all aware that public figures and local representatives are canvassed for these character witness submissions. It would certainly be more authentic and more accurate to the truth if we were to move away from that.

Perhaps one concern with the provision contained in the Bill would be the necessary lengthening of the sentence hearing, which will naturally flow from allowing the time for verbal testimonies, cross-examination, and counter-witnesses, as provided for by the new section 5D to be inserted into the Act of 1993. Additionally, I cannot see a provision in that section which affords the defence the same opportunity as the prosecution for cross-examination of a witness produced by the other side. Perhaps that is intentional, but perhaps it might also be examined. The additional increase in legal costs as a result of lengthened sentencing hearings would also be a possible cause for concern. Yet again, if all is done in the balance and with the benefit to the complainant, I believe that much can be accomplished with this Bill. I commend the Senators on bringing this before the House today.

Photo of Niall Ó DonnghaileNiall Ó Donnghaile (Sinn Fein)
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Ar dtús báire, cuirim fáilte roimh an mBille agus tréaslaím leo siúd a chuir an Bill os ár gcomhair.

I will begin by welcoming the Minister of State, Deputy Joe O'Brien, to the House and by welcoming the Bill before us this afternoon. I apologise to Senator Doherty and to the other proposers for not being here during earlier contributions. I did, however, hear Senator Doherty move this legislation in a very focused, resolute and authentic way. I am very happy to be here today to support it at this Stage, and I am sure at all of the other Stages.

There are many aspects involved in the circumstances that affect a person who has been sexually abused and to be in court seeking justice from the assailant. Among the many aspects is one that goes to the heart of the drama, which is the integrity of the victim. There is a need for the entire apparatus of justice, including the attitude of all those involved including the police, the solicitors, the judges and the various structures that surround them such as police stations, courtrooms etc, to place the integrity of the victim to the fore. There are no excuses for those with the direct responsibility in this field not to make it as easy as possible for victims to participate in securing justice for themselves, with the active assistance of the administration of justice at its various levels. Respect for the victim by authority figures will help the victim overcome the fear, the loneliness, the sometime embarrassment and the feeling of guilt of many victims, as if they are to blame for what happened to them, and not the attacker.

This Bill is about improving the information available to the court at the time a convicted sex offender is before the court for sentencing. It is about ensuring that the victim is not re-traumatised by the court experience. It is about providing legal representation for the victim, allowing for the cross-examination of any referee produced by the defendants as evidence of their good character, so-called. This is very important because at the moment the law permits unverified "good character" testimony to be placed before the court in mitigation pleas by the assailant. Victims feel humiliated when they are left unable to challenge such glowing testimony.

As a result of the victims' rights directive, which now has direct effect in Irish law, and the Criminal Justice (Victims of Crime) Act, the State must put measures in place to protect victims and their families from secondary and repeat victimisation and from the risk of emotional or psychological harm. Unfortunately, there have been a number of incidents where character references have been used to ruin the reputation and standing of a victim of sexual crimes and where leading figures from the various worlds of sports, politics and media - as stated by other colleagues - have provided references. Such gestures have had a chilling effect on the reporting of sexual crimes. The Bill at hand speaks to some of the issues that affect the victims and the quality of justice that is available to them. The Government Seanadóirí who have introduced this welcome Bill should also use their influence on the Government to implement the Supporting a Victim's Journey plan, a more comprehensive and all-embracing change on well-known fronts, to improve the overall experience for the better of those caught up in the nightmare of sexual assault, and sadly very often the nightmare of the process of obtaining justice, as it has been for many victims, unfortunately.

I again acknowledge the proposers of the Bill. I am sure they will have support across the House. They certainly have my support and I thank them for leading on issues that are of such importance to women, around gender-based violence and justice, around ensuring equality and fairness and all of the support available to victims, not least those who have suffered sexual violence and abuse. I support the Bill.

Photo of Annie HoeyAnnie Hoey (Labour)
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I thank and acknowledge the work of Senators Doherty, Chambers and Pauline O'Reilly for moving this Bill. As already referred to here, I doubt that I am the only Member to believe that if we did not have female leadership, and women leading on the Government side of the Chamber, we would not see legislation like this make its way through the House. The Senators are to be commended on that. It is a sad state of affairs that this is how we have to get stuff done. We just have to get women in and we have to get women to do it. That is just how it is.

This is a very difficult topic. It is a hard topic for some of us in here. I am aware that it is a hard topic for people who might be watching in and listening in on this or who may be reading about it. It is a difficult topic but it is a very important topic and I particularly commend the Senators on their sensitivity and the way they have dealt with this topic.

Photo of Annie HoeyAnnie Hoey (Labour)
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It is hard and the Senators have dealt with the issue with great compassion, sensitivity and kindness. This is not often seen in politics and it is great to see it for such a difficult topic.

I was talking with a former Seanad colleague, now Deputy Bacik, and she told me how in 1998 she was doing research for the Dublin Rape Crisis Centre around this, which resulted in previous legislation on the right of legal representation for complainants in sex offence trials where the defence seeks to produce evidence of prior sexual experience. We still see stuff around that but it is a conversation that has required women over the years to be constantly trying to push for care and compassionate change that does not re-traumatise or make things more difficult.

When we talk about re-victimisation or re-traumatisation, it is as though it is only at this point in the trial that this happens. I can certainly speak from a very personal experience that it happens too when one hears jokes, when there is a scene on TV, when we read about what is happening to the women being raped in Ukraine, or when one sees a social media pile-on that denies a victim's testimony and says that it is not true. It is never just a re-victimisation at one point of a trial. It is something that consistently happens. If a person has been raped, it is a part of their life. I hope that beyond this it becomes something in how we actually talk about rape victims, how it is portrayed in the media and how it is portrayed on TV. I believe this can be dealt with in a much more compassionate and sensitive way. I hope when we see legislation such as this, it challenges those people who talk about it in a way that is not the most compassionate or the most thoughtful.

We had a really constructive, respectful and highly personal discussion last November, when the report from the justice committee came out on victims' testimony in cases of rape and sexual assault. It is great that in less than five months, we have seen legislation seeking to provide for the need to protect victims against re-victimisation.I hope we will continue this progress to make our justice system more cognisant of the needs of victims.

Senator Doherty talked about changing a culture that puts victims on trial and that is a key aspect of this issue. When I hear about glowing character references, as have been mentioned, and about a victim having to sit and listen to someone speak so highly of someone who might have done one of the most horrific acts to another person, or even to many people, I cannot comprehend what that would be like because I chose not to go through that. I have spoken previously in the Chamber about how I initiated the process, reported a matter to the Garda, went to the sexual assault treatment unit and did everything I had to do, but before I had even walked out the door, a garda outlined to me what was, in effect, a character reference for the person. Someone had told the garda that the person had never done anything like that before, in response to which I thought to myself that he had done the previous night. Before I had even got out the door, I knew there was no way I was going to be able to go through the process, even if the DPP were to decide to prosecute the case, which seemed unlikely in the circumstances. There was no way I would be able to go through a trial and there was no way, after a male garda having said to me that the person would not have done what I had reported he had done, that I would be able to sit there and listen to what would, inevitably, involve lots of people saying he did not do it and that it was my fault and asking whether I was sure it had happened.

I cannot imagine what it must be like for those victims to have to sit through those character references. As someone who has been through this experience and supported friends through the trial process, I cannot imagine having to listen to people defend someone who did that and defend that person's good name, and then to hear them argue that the person deserves a lighter sentence or just a slap on the wrist for doing something we will have to live with for the rest of our lives. We have to live with the scars on our bodies and with the experience for the rest of our lives.

I commend the Bill’s sponsors on taking an initiative on this issue. As I said, I do not know how people can go through the process. I wish I had had the strength to do it, whereby I would be able to stand in the Chamber and say I had done it such that other people might feel able to do it, but I was not able to at the time. I hope the Bill will send a message to people to say they are going to be believed, and to say this farce of people lining up and saying what a great person a defendant is after the defendant has done such a terrible thing will end. I hope we will have a justice system based on evidence, truth, innocence and guilt, that will not put a victim through what I cannot imagine going through.

Photo of Mark DalyMark Daly (Fianna Fail)
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I thank the Senator for sharing her story. Unfortunately, it is the story of many, which speaks to the importance of this legislation. As she pointed out, it is because of the predominantly female leadership of Seanad Éireann that it is coming through at this time, even if it was long delayed in many respects.

Photo of Tom ClonanTom Clonan (Independent)
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I thank Senators Doherty, Pauline O'Reilly and Chambers and commend them on the Bill. As we know, there is a serious level of underreporting of gender-based violence, sexual assault and rape. A high threshold, or momentum, is required to report it. I am mindful of my experience as an officer in the Defence Forces investigating the experiences of my female colleagues, through which I found that the sexual violence within our armed forces was systemic and systematic to the extent that one in four of our serving personnel could expect to be sexually assaulted within the workplace.

Despite that report and the findings and recommendations of my PhD, despite the subsequent independent Government inquiry that investigated and vindicated it, and despite the subsequent independent monitoring groups, in September of last year the Women of Honour group reiterated their disclosures. The point I am making is that those women had to come forward and identify themselves. It was the first time of which I am aware, in the history of this issue, that women in the Defence Forces have come forward and given up their anonymity to press home the immediacy and urgency of the issue.

It is clear, following the disclosures of the Women of Honour group and the subsequent reports to me and others from serving personnel - most of whom were women, although some were young men, in our Naval Service, Air Corps and Army - that 22 years after the original research was completed, it remains a persistent problem in our Defence Forces. The Defence Forces are an institution that purports to protect and defend our citizens, yet it is not a safe place for 51% of our population. One of the reasons it is so difficult for women to come forward and report on their experiences, as has been set out, relates to the existence of not only a very adversarial system but also, within that, a device not based on evidence but one that is capricious, idiosyncratic and contrived, whereby somebody can come forward and produce a "character reference".

The Bill is commendable and I will fully support it. Much reference has been made to the fact three female Senators have brought it forward, but I reassure the House we are all in this together and it is important men stand up, call it out and invest the same energy in calling out the perpetrators as they do in calling out people such as Senator Hoey who want to speak truth to power and to speak up about their experiences. That energy should be invested in identifying and protecting the rest of civil society from perpetrators. I welcome and will support the Bill.

Photo of Barry WardBarry Ward (Fine Gael)
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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.

Photo of Aisling DolanAisling Dolan (Fine Gael)
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I wish to acknowledge the absolute power of having the three female leaders of the Government parties here. We can see that power today. It is a power to make change and change legislation. What we are talking about here is the protection of victims in terms of their experience of the courts system.

I wish to acknowledge the work done by Senators Doherty, Chambers and Pauline O’Reilly. In this Bill they have collectively brought together their legislative experience and their background in legal expertise.

I thank Senator Hoey for her honest account and for telling us her experience. Her story will support and encourage others to come forward. I represent a rural area. Again, with the Minister for Justice, Deputy McEntee, and all of the work they she had tried to do, we need supports in rural areas such as extended hours or freephone hours available for, say, Women's Aid or local women's support groups so people can feel that they can take the very first step and come forward. I wish to acknowledge a recent experience of engaging with the Garda about a situation similar to this one and there was a lot of support. So training is important and is coming through in terms of the Garda Síochána be it through a divisional protective services unit, DPSU, or other areas. Each and every garda must be available and able to speak to somebody who walks through the doors of a station in a way that gives the victim support.

This Bill is about not re-traumatising victims. As Senators have said, it is about protecting victims so that they can have justice. I mean that their lives and what has happened to them means that they will have justice in the time ahead, and they will be able to deal with this experience. It is very important that those character references, which is unvouched testimony, is challenged and this Bill will change that. Again, it comes back to the victims' directive and how we are going to support the victims, particularly the victims of sexual and-or domestic violence.

For anyone who is listening, there is a 24-hour number, Women's Aid and An Garda Síochána. I encourage people to take the first step whether it is speaking to a stranger at the end of a phone who is there to provide support or reaching out. It is such a difficult time and experience. I thank all of the Senators for their contributions and support.

Photo of James BrowneJames Browne (Wexford, Fianna Fail)
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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.

Photo of Mark DalyMark Daly (Fianna Fail)
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I welcome the Minister, Deputy McEntee, to the Chamber. She has taken time out of her busy schedule to be here, because of the importance of this Bill for the victims of sexual assault. The Minister of State commented on how, as we all know, the perpetrator’s previous history is not allowed to be given to the court. Yet, the victim's previous history is given to the court. That tells you a lot about our system. Previously, many times, the prosecution would have asked, “What were you wearing?” and posed those types of questions. You would have to wonder how fair our legal system is. Clearly, the low conviction rates, as well as the fact that so many victims are not willing to come forward, tells us a lot about how the system is not working. If it was working, we would have more prosecutions, but we do not. Senator Clonan made the point about how our Defence Forces cannot even defend our female members of the Defence Forces. This shows that our system is not working.

I thank the Minister for being here, and I thank the Members who tabled this important Bill, which contains what is required to fix a system that is clearly not working. I call on the proposer, Senator Doherty, to reply.

Photo of Regina DohertyRegina Doherty (Fine Gael)
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First, I thank the Minister of State, Deputy Browne, the Minister of State, Deputy Joe O’Brien, and the Minister, Deputy McEntee, for their attendance here today. I welcome the Government’s support for this Bill. While the Bill is not perfect, I welcome the commitment to work with us to address some of the issues.I particularly welcome the sexual offences Bill that is due to be published later this year. It will on board the recommendation made in the O'Malley report that legal representation be provided for victims in the criminal justice system, as suggested in this Bill. I also acknowledge that what is not addressed in this legislation is that the significant portion of those convicted of sexual offences are children. This goes to highlight the enormous issue we have regarding the understanding of consent by some of our very young male adults. This is an issue we must address.

To touch briefly on something Senator Ward said regarding us having a breadth of experience of assault in this Chamber, which is very true, I would go so far as to say that the breadth of experience of assault probably extends to the 51% of the population of this country who are women. While there exists the renowned fact that probably one-in-four women, at whatever age, have experienced sexual trauma or assault in this country, I suggest that proportion is probably closer to 50% plus. I also suggest that there is not a single person here who does not know or know of a victim of a serious assault that has never been reported to anybody. We have an exceptionally serious problem in this regard, which the Minister has been attempting to address in recent years through her endeavours. I sincerely thank her for that and I wish her well. I look forward to working with my two colleagues here, who have supported this Bill since the conception of the idea by Noeleen Blackwell of the Dublin Rape Crisis Centre, to bring about the passage of this legislation through this House and Dáil Éireann in the coming months. I refer to finding a successful resolution to addressing the issue of the retraumatising of our female victims in the context of sexual crimes. I thank the Minister of State, Deputy James Browne, and the Minister for Justice, Deputy McEntee.

Question put and agreed to.

Photo of Mark DalyMark Daly (Fianna Fail)
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When is it proposed to take Committee Stage?

Photo of Regina DohertyRegina Doherty (Fine Gael)
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Next Tuesday.

Photo of Mark DalyMark Daly (Fianna Fail)
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Is that agreed? Agreed.

Committee Stage ordered for Tuesday, 3 May 2022.

Cuireadh an Seanad ar fionraí ar 4.32 p.m. agus cuireadh tús leis arís ar 5.30 p.m. Sitting suspended at 4.32 p.m. and resumed at 5.30 p.m.