Thursday, 1 December 2022
Criminal Justice (Amendment) Bill 2022: Committee and Remaining Stages
We are now dealing with the committee and remaining stages of the Criminal Justice (Amendment) Bill 2022. On section 1, we are now dealing with amendment No. 1 in the name of Senator Doherty. Amendments Nos. 1 and 2 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 1:
In page 4, lines 8 to 14, to delete all words from and including “purpose—” in line 8, down to and including line 14 and substitute the following:“purpose the complainant and the prosecution may, on application to the court, seek further information in relation to the evidence that is to be adduced, and”.
I wish to put on the record of the House that following the Second Stage of this Bill which, thankfully, everybody thought was a good idea, I met with the Minister of State and the officials and I must state that there were so kind and accommodating to me and Senators Chambers and Pauline O'Reilly. They gave us sterling advice as to what was wrong with the Bill in the nicest possible way. The amendments here, therefore, are to take out some of the things which have been problematic for the passage of this Bill and are probably not central to the Bill either. I am aware, as I am sure the Minister of State is, that there is another issue with the Bill but I have missed the deadline of taking that amendment out. I am aware then that the Minister of State will highlight that point and I thank him for doing so. I would also expect that that aspect will be amended when the Bill comes before the Dáil.
I am very pleased that this has happened, and that it will, please God, pass all Stages in the Seanad today with everybody's support. I thank the Minister of State, in particular, his team and all of his officials for making this a reality. If I can be then, as cheeky as I probably normally am, I ask for as early as possible a slot in the Dáil to make this Bill a reality in order that it goes on to the statute books in whatever shape or form the Minister of State feels he will take it in before the Dáil.
I thank the Cathaoirleach Gníomhach. I am pleased to have the opportunity to address the Seanad this afternoon on behalf of the Minister for Justice. I begin by thanking Senators Doherty, Chambers and Pauline O'Reilly for bringing forward this important Private Members' Bill on character references in sexual offences trials and thank the Senators for supporting this Bill. Earlier this week, the Minister, Deputy Humphreys, brought a memo to Government seeking Cabinet approval to support the passage of this Bill through the Seanad, as well as the amendments which have been tabled by the sponsoring Senators today on Committee Stage. I am happy to confirm that approval was granted.
Before I speak to the amendments, I would like to outline the position of the Government on this Private Members' Bill.
The Bill provides that character references during sentencing in sexual offences trials should be sworn under oath or affidavit. This is intended to prevent unvouched character evidence being presented in sentencing in sexual offence trials, without cross-examination by the prosecutor, or the victim and their legal representatives, being possible. The overall intentions of this Private Members' Bill are in line with work underway in the Department of Justice to improve how victims of sexual crime experience the criminal justice system. We are very supportive measures which protect the victim from retraumatisation, in line with initiatives underway to improve the situation of victims through the plan supporting the victim's journey.
The Government supports the Bill's aim of requiring character references in sexual offences trials to be sworn under oath or affidavit and officials from my Department has had productive discussions with the sponsoring Senators in reiterating this shared objective. This key aspect of the Bill will ensure that anyone who wishes to provide a character reference for a person who has been convicted of a sexual offence will now have to stand over their words.
However, as I highlighted in the House on Second Stage, there are both legal and operational issues around providing for separate legal representation for victims during a sentencing hearing. In this context, I welcome the Senator's amendments which addressed the concerns I had raised. The amendments tabled remove entitlement of victims or their families to legal representation during a sentencing hearing. In Ireland's common law system, the criminal trial comprises of a binary contest between the prosecution and defence. The procedural and evidential rules, including those at sentencing stage, which have evolved over time, are based on that assumption. Under both the Constitution of Ireland and the European Convention on Human Rights, there must be equality of arms, insofar as that can be achieved, between the accused and the prosecution. By accepting the Senator's proposed amendments we are maintaining this well-established balance which is a cornerstone of our legal system.
We also avoid potentially significant constitutional issues which the introduction of separate legal representation for one category of witness would entail. As previously noted in this House, the financial implications of providing for separate legal representation for victims or their families at sentencing hearings would have been considerable. We also avoid the risk of increasing waiting times for non-priority matters in law centres, and the unintended consequence of this practice might need for it to be extended to all types of criminal cases, which was the concern raised by the Legal Aid Board.
In this context, I would note that experts in this area examined the issue of legal representation for victims during criminal trials and came to similar conclusions. Along with an expert group, Professor Tom O'Malley consider this very carefully in the review of protections for vulnerable witnesses in the investigation and prosecution of sexual offences. The O'Malley review made very limited recommendations in respect of expanding legal representation for victims and those recommendations are being implemented in the sexual offences Bill which is currently under preparation in my Department.
Justice Peter Charleton came to similar conclusions in a recent essay on improving the criminal trial process for victims of sexual offences.
The Director of Public Prosecutions and her representatives are tasked by law with prosecuting all crime which has been committed against a victim. To introduce separate legal representation for the victim would create a fundamental and profound imbalance in this binary system.
Some consequential amending of related provisions in this Private Members' Bill which allowed the victim or a family member to question someone providing character reference will need to be addressed at a later date as the Bill progresses through the Dáil. There is no difficulty with the prosecution doing so and let me be clear about that. However, permitting character evidence to be questioned by persons other than the prosecution and defence teams would again give rise to serious legal and constitutional issues.
Victims should be accorded every reasonable consideration during the course of criminal trials, bearing in mind what is constitutionally permissible. The Department of Justice is deeply committed to moving towards a criminal justice system which is more victim-centred. In supporting a victim's journey, the plan to implement the recommendations of the O'Malley review is to implement important reforms to support and protect vulnerable victims in sexual offence cases to ensure this. This Private Members' Bill complements those processes and I reiterate the Government's support for its core aim, which is to make character evidence vouchable. This is a key step we can take to help protect victims from retraumatisation in the court experience. I once again offer my appreciation to the Senators for this initiative and my Department stands ready to advise on further amendments which may be needed to support passage of this Bill through both Houses of the Oireachtas. I agree with Senator Doherty that we should try to progress this matter now as quickly as possible from here. I thank the Cathaoirleach Gníomhach.