Seanad Éireann - Volume 135 - 24 March, 1993
Criminal Justice Bill, 1993: Second Stage.
Question proposed: “That the Bill be now read a Second Time.”
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: I welcome the Minister to the House.
Minister for Justice (Mrs. Geoghegan-Quinn) Máire Geoghegan-Quinn
Minister for Justice (Mrs. Geoghegan-Quinn): Tá mé buíoch de na Seanadóirí as ucht deis a thabhairt dom chomh tapa sin an Bille tábhachtach seo a chur faoi bhráid an Tí. Tá súil agam go mbeidh díospóireacht fhada againn ina thaobh agus go nglacfaidh na Seanadóirí uilig páirt inti. Is cinnte go bhfuil an-chuid gnéithe sa Bhille ina mbeidh suim ag gach duine anseo.
I thank the Members of the Seanad for their co-operation in dealing with this Bill so promptly.
This is the first piece of criminal justice legislation that I have brought before the Seanad. It is but one in a series of measures which I will be introducing during the term of the Government to update and reform our criminal law and, as a result, I expect to be a frequent visitor to this House. I look forward to co-operating with Senators in processing these changes.
The Criminal Justice Bill, 1993, is a relatively short but extremely important piece of reforming legislation. It forms part of a number of measures which have been or will be introduced to improve the criminal justice system. Briefly the four main objects of this Bill are: First, to enable unduly lenient sentences to be reviewed by the Court of Criminal Appeal at the instance of the Director of Public Prosecutions; Second, to increase the maximum penalty for incest against a female person aged 15 years or older from seven to 20 years imprisonment; Third, to place an obligation on sentencing courts to take into account any effect a sexual or violent crime has had on the victim; Fourth, to authorise criminal courts to require offenders to pay compensation  to their victims for any injury or loss.
This Bill is oriented towards the victim and represents a significant step towards making the criminal justice system more responsibe to the needs of the victim by providing for compensation and empowering the courts to take into account the effects of crime on victims as people. The victim normally only gives evidence for the prosecution and is subject to often scathing cross examination. Until recently, the emphasis of all reform of the criminal law was either on ensuring that there were adequate laws to allow persons engaged in criminal behaviour to be prosecuted or on ensuring that there were adequate safeguards to allow an accused person receive a fair trial. The situation of the victim was virtually ignored. I am glad to say that that attitude is now being changed and greater account is being taken of the position of the victim subject to the framework of the criminal justice system provided for in the Constitution.
One of the first serious attempts to improve the situation of victims in the criminal process was taken in the area of rape. A rape trial is particularly traumatic for a rape victim. In recognition of this, the Criminal Law (Rape) Acts, 1981 and 1990, provided for anonymity for the victims of serious sexual assaults, excluded the public from such hearings and imposed restrictions on the adducing of evidence relating to the complainant's past sexual history.
Administrative measures were also introduced to ensure rape victims receive copies of their statement from the gardaí, to provide for pre-trial consultations with the prosecuting team and to allow victims to consult, subject to the normal conditions, a legal aid solicitor who may accompany the victim into court. The Garda now have elaborate procedures in place for the proper and full investigation of such cases. For instance, female members of the Garda are invariably involved in the investigation of such crimes. It is important that women generally know that the Garda care greatly about preventing, detecting and prosecuting  crimes of violence against women and children. Their training and procedural instructions in this area have been greatly revamped in recent year in consultation with the key voluntary agencies. In order to ensure consistency in the investigation of cases of violence against women and of child abuse, and to enhance the dialogue between the Garda and key social agencies in this field, a new Garda unit has been established in the Dublin Metropolitan Area in recent days. This unit, consisting of a woman sergeant and three gardaí, will act as a policy development unit as well as over-viewing all such investigations in the Dublin area. The question of extending the mandate of this unit to investigations outside the Dublin area will be considered in due course. As a follow up to last October's conference on safety to women, a further conference on this issue at which representatives of womens organisations will be present is to be held in the Garda College in Templemore in July.
The process of making the criminal justice system more victim orientated was continued by the Criminal Evidence Act (1992) which included provisions to make it easier for victims of physical or sexual abuse to give evidence by allowing the use of live television links and video recording. The relevant sections of that Act were brought into force by Ministerial Order on 15 February 1993.
The two main victim-orientated provisions included in this Bill will focus the court's attention on the impact of the crime on the victim. When determining the sentence to be imposed, the court will have to take into account any effect the crime has had on the victim. Furthermore, the court will be empowered to order the convicted person to pay compensation to the victim. In so far as compensation orders are concerned Senators may be aware that the Criminal Justice Bill (1993) now before them differs from the Criminal Justice Bill first presented to Dáil Éireann in September 1992. The changes I introduced, which I will deal with later, mean that once the trial is finished the victim does not have to have  any contact with the accused in order to secure payment of compensation.
I turn now to the question of sentencing. There have been a number of decisions made by the Judiciary in relation to sentencing which have given rise to serious public concern. As a member of the Executive it is not for me to comment on any particular case that has come before the courts, but as Minister for Justice and an elected representative I do have a duty to consider issues which have given rise to genuine concern and to take whatever action is appropriate in the circumstances.
Sentencing is not an exact science. There can be an enormous variation in the circumstances in which an offence is committed and in the effect it has on the victim. The sentencing judge must take into account any mitigating circumstances such as a plea of guilty, the offender's age and mental capacity, the possibility of rehabilitation and so on. The judge must reflect society's abhorrence of particular offences and bear in mind the need to deter others who may be minded to commit them. In view of the number of factors involved it is not surprising that differences of opinion can arise as to what is the appropriate sentence in a particular case and it has long been accepted that a convicted person can appeal against the severity of a sentence imposed upon him. To ensure a proper balance is maintained between the interests of a convicted person and the interests of society at large it seems appropriate that, in addition to requiring courts to have regard to the effects of the crime on a victim, the Director of Public Prosecutions, who acts on behalf of the people, should be allowed appeal against unduly lenient sentences.
By providing a statutory basis for such appeals this Bill sets out a mechanism to deal with those exceptional cases where the sentence is so lenient as to cause justifiable public concern. I would stress that such cases are exceptional and that there is no problem in the vast majority of cases. I should also point out that the provision applies to sentences passed in  the case of any serious offence and is not limited to sexual offences. Under our Constitution the imposition of a particular sentence in a criminal case is part of the administration of justice and as such is a matter for the Judiciary. This Bill does not propose in any way to interfere with this constitutional principle. The final decision as to the appropriate sentence in a particular case will remain with the courts.
I turn now to the detailed provisions of the Bill. Section 1 is the interpretation section. The definition of “sentence” in the section makes it clear that the Bill applies to all orders of the court and not just a sentence of imprisonment. However, the Bill does not apply to sentences of detention required to be passed by law on accused persons found to be insane. I should say that I will be bringing forward a Bill to amend the law on criminal insanity.
Section 1 also provides that the Bill will not apply to sentences imposed on persons convicted before it comes into force.
Sections 2 and 4 deal with the procedure for initiating a review. The Director of Public Prosecutions will have 28 days after a sentence is imposed to decide whether to ask the Court of Criminal Appeal to review it. It is essential that this limit should not be so short that the Director would not have enough time to consider the matter thoroughly. On the other hand, it would not be right that a convicted person, whose sentence may have been suspended or who may not have received any custodial sentence, should be kept too long in a state of uncertainty as to whether or not the sentence will be reviewed, with the prospect of having to face a custodial sentence ultimately. I believe that the period of 28 days in section 2 meets both these criteria. The sentences that can be reviewed under the Bill are those imposed on conviction on indictment or on persons who have pleaded guilty in the District Court to serious offences and have been sent forward for sentence to the Circuit Criminal Court or the Central Criminal Court.
Section 2 is concerned only with unduly  lenient sentences. Before a question of review arises, the sentence concerned must be seriously out of line with what a judge who had taken all relevant factors into account could reasonably have imposed. It is not a question of asking the Court of Criminal Appeal to review, say, a ten-year sentence when it might be thought that a sentence of 11 years would have been appropriate.
Section 3 provides for an appeal to the Supreme Court where it can be certified that a point of law of exceptional public importance is involved and that such an appeal is desirable in the public interest. As in the case of appeals from other decisions of the Court of Criminal Appeal, the certificate can be given by that Court, by the Attorney General or by the Director of Public Prosecutions.
Section 5 enunciates an important principle to be followed when courts are sentencing for sexual offences or for offences involving violence or the threat of violence to a person, that is, the court should take into account the effect, including any long-term effect, of the offence on the victim. I believe this provision will lead to fewer sentences having to be reviewed under the Bill by the Court of Criminal Appeal. It will normally be up to the court to decide how it will inform itself on the effect of the offence on the victim. The victim, however, does have a right to insist on giving his or her own evidence to the court if he or she so wishes.
Section 6 extends the present powers of criminal courts to award compensation to all cases where the victim has been caused personal injury or loss. At present that power is available only in cases of criminal damage.
It is appropriate that the sentencing court should make the decision as to whether compensation should be paid, what its amount should be, what the convicted person can afford and so on. These factors vary from case to case and the court is in the best position to make an informed judgment on them. Section 6 provides for a compensation order to be made for any injury or loss unless the  court, and I quote: “sees reason to the contrary”. The law will now be such that the making of a compensation order will be the norm rather than the exception. Of course, if an offender cannot pay anything, that is sufficient reason to the contrary.
Section 6 does not apply to injuries or losses caused by road accidents by insured drivers who are subsequently prosecuted. In those cases the victims are compensated by the insurance companies concerned, but it does apply to injuries or losses caused by uninsured drivers, whether compensation is payable by the Motor Insurers' Bureau of Ireland or the criminal injuries compensation scheme. Moreover, if a car is taken without the owner's permission and damaged, it will be presumed for this purpose that the person who took it caused the damage, whether he did so or not, so that he can be made to pay compensation for it.
Both the convicted person and the victim may apply to have the compensation order reviewed where there has been a substantial reduction, or increase as the case may be, in the convicted person's means. There are also provisions for an appeal by the convicted person against the compensation order and about the effect on the order of any civil proceedings taken by the victim.
Section 7 provides that all payments of compensation are to be made through the local district court clerk and that it will be the district court clerk who will, on request, take proceedings to enforce payment under the order in his or her own name. This provision will ensure the victim does not have to have any direct contact with the offender once the trial has been completed.
Section 11 deals with an amendment of the Criminal Procedure Act, 1967. The Criminal Evidence Act, 1992 has special provision making it easier for witnesses in cases of physical or sexual abuse to give evidence by allowing evidence to be given through a live television link at the preliminary examination and enabling a video recording of the evidence to be admissible at the trial. However, it was suggested recently that a technical  amendment to the Criminal Procedure Act, 1967 might be necessary to remove any doubt as to whether a written deposition should also have to be taken in those cases. Section 11 removes any such doubt. Clearly, it is unnecessary to have a written deposition when a video recording is available either to be shown or to have a transcript made from it.
Section 12 provides for an amendment to the Punishment of Incest Act, 1908. The 1908 Act provides in section 1 that incest committed by a male against a female is an offence. If the female person is under the age of 15 years the maximum penalty is life imprisonment. If she is 15 years or older the maximum penalty is seven years imprisonment. If the act takes place without the consent of the female then the male can always be charged with rape which carries a maximum penalty of life imprisonment. That is the existing law.
To turn now to the change proposed, section 12 of this Bill proposes to increase the seven year penalty in section 1 of the 1908 Act to a maximum penalty of 20 years. Because of the power relationship between a father and daughter, situations will and do arise where the daughter is a victim of incest but it would be difficult to prove in a court of law that rape was committed because of the issue of consent. It is to cover such situations that the maximum penalty is being increased from seven years imprisonment to 20 years imprisonment where the female is 15 years or older.
I think it is appropriate at this point to refer to the question of treatment programmes for prisoners committed and sentenced for sexual offences. As was stated in the Dáil during the debate on this Bill, a small specialist group in my Department has been carrying out a feasibility study since last September of what could be made available by way of treatment which is practical, achievable, sustainable and open to evaluation. I understand the group's work is almost finished and that I may expect to have its report in a week or two. When I have  assessed its recommendations I will make a further announcement.
Persons imprisoned already have available to them a range of medical, psychiatric, psychological and welfare services to assist them in coping with their problems. I want to make it absolutely clear, however, that I see the provision of special treatment programmes for sex offenders as a priority issue.
A number of constructive proposals were put forward during the debate on this Bill in the Dáil. I have given careful consideration to all the points raised in the debates in the Dáil and I think it would be useful if I commented on one or two of them. There was one proposal in particular which warrants further consideration and it was a matter raised by a number of Deputies. The proposal, broadly speaking, was that the courts should have power to order an accused person or a convicted person to avoid contact with the victim and to avoid areas where the victim works or lives.
A restricted form of this is already in operation. Conditions can be imposed by a judge when granting bail, including one to the effect that the accused must not come into contact with the victim. Indeed, a belief that the accused might interfere with a witness, including the victim, is a ground for refusing bail. Conditions are also regularly imposed on prisoners who are released before they have served their full sentence. Under the existing law, however, no conditions can be imposed on a person who has served his full sentence and he is regarded as having paid the full penalty for his crime.
I have asked officials in my Department to explore this matter fully with a view to introducing provisions in future criminal justice legislation which would give the courts comprehensive powers in this area. While the idea is good, time is needed to work out the full details of the proposals and its implications. I could not justify delaying the passage of this Bill until that work has been completed so I do not propose to deal with it now but, as I have said, I have given instructions for the matter to be pursued and, if  appropriate, I will include it in the next criminal justice legislation I bring forward.
Another question raised was the possibility of making it lawful for prosecution counsel to address a court before it imposes a sentence on the nature and severity of such sentence. I have had the opportunity to have this matter raised with the Attorney General who sees no constitutional objections to such an approach. I am advised, however, that there is no rule of law in existence at present which would prevent prosecuting counsel from addressing a court on sentencing so a provision of the type envisaged is not required at this stage. If difficulties arise in the future I will look at the matter again.
I thank the Senators once again for their co-operation in dealing with this Bill and I look forward to hearing their views.
I commend the Bill to the House.
Mr. Neville Mr. Neville
Mr. Neville: I welcome the Criminal Justice Bill, 1993. Procedures in our criminal justice system to review lenient sentencing are long overdue. It is vital that the courts when sentencing for sexual or violent offences be required to take into account the effect on the victim. For many years Fine Gael has demanded legislation to give the courts power to require offenders to pay compensation to their victims for any personal injury or loss resulting from the crime. At every opportunity to debate this issue in this House I asked the Minister to take such an approach and I welcome the provisions in this Bill to do so.
In addressing the issue of unduly lenient sentences, of the effect on the victim and compensation for injury or loss, the Minister is addressing only part of the problem. I call on the Government again to gear the criminal justice system towards meeting the needs and concerns of the victims of crime because it is not right that it has ignored the victims of sexual and violent crimes. Under the present system, victims are called to court as witnesses and the serious personal trauma they have suffered because of the crime is exacerbated by the suffering, and  often the humiliation, of recalling the events. Their presentation is incidental to the proceedings and this should be changed.
Proper support systems must be introduced for victims of crime both before and after proceedings to assist them in coming to terms with the trauma they have experienced. They must be helped to overcome the stress of giving evidence and the disorientation caused by the unfamiliar surroundings of the court. I stress again the need to reduce the formality and the need to dispel the austere atmosphere of courts. This is intimidating to witnesses who are not used to court surroundings and it is unnecessary. I ask the Minister to abolish the stupid, unnecessary and intimidating apparel of wigs and gowns in court. It is time the aura of superiority engendered by such dress was dispelled. The courts should take example from the informality of the Employment Appeals Tribunal where concentration is focused on obtaining the full facts of a case. The informal approach of that tribunal has enhanced rather than hindered its success.
Changes in court dress while necessary are only part of what needs to be done to reduce the trauma of court appearances for victims of crime. We need a charter of rights for victims. Victims of crime should be treated with courtesy and compassion and with respect for their personal dignity and privacy. Victims should have access to services and receive early information from the courts and from police about their cases. In the case of loss as a result of theft, property should be returned as soon as possible.
It is wrong that victims of crime should have to listen in court to mitigation pleas on behalf of criminals who may have attacked them. Victims who may have been raped, shot, beaten, robbed or who have had their property destroyed may be expected to listen to character references from clergy or employers on behalf of the criminal. In cases where a defendant has pleaded guilty and a strong case for mitigation is entered by a barrister, the victim of a serious offence may witness the  offender being praised and then escaping with a light sentence.
It is not enough to provide for appeals against lenient sentencing. The Government must take seriously its responsibility to support organisations which help the victims of crime. These organisations are doing the Government's job in a voluntary capacity. The Government must ensure that institutions like rape crisis centres are not inhibited in their work by lack of funding. The Government must further ensure that the services provided by rape crisis centres are available throughout urban and rural Ireland. The health boards should have responsibility for the provision of these services and be adequately funded to do so. It has become clear in recent times that crimes of rape and incest are committed frequently throughout the country. Victims of such crimes must be afforded the opportunity to attend centres which will help them to deal with their physical and mental sufferings.
Sentences imposed on those convicted of violent and sexual crimes should reflect the seriousness of those crimes. It is important — and the Minister has referred to this — that those convicted of rape, sexual assault and incest do not continue to pose a threat to victims after their release. A treatment programme should be devised for perpetrators of violent sexual crimes and I welcome the Minister's statement that a report on this subject will be issued within two weeks. A treatment programme should endeavour to ensure that perpetrators of violent crimes take responsibility for their actions and understand the consequences for their victims. It is regrettable that the programme introduced in Arbour Hill has been discontinued. Perhaps the Minister would comment as to why it was discontinued. The results of that programme could, surely have been used to determine the effectiveness of introducing similar programmes elsewhere.
Unless Government introduces treatment and counselling programmes for sex offenders in Irish prisons as a matter of urgency offenders will return to their  communities without understanding the grave consequences of their crimes. Treatment and counselling would reduce the likelihood of recidivism and this Bill may be the appropriate means for the introduction of suitable programmes.
Victims of sexual crimes, especially incest, live with the fear that an offender, when released will seek revenge on the victim. This fear which the Minister alluded to in her speech deters many from revealing their terrible suffering to the gardai or making statements describing their ordeal in case their testimony provokes a more serious violent or sexual assault.
The courts should have power to make barring orders preventing a person convicted of an assault from making any contact whatsoever with the victims of the assault. The victim should not have to relive the trauma of the assault in court in order to obtain protection following the release of the convicted person.
There is widespread concern about lack of consistency in sentencing, especially in sentencing for sexual crimes. Consequently, great distress is caused to victims who rightly feel that the injury to their person and the psychological trauma suffered is not acknowledged by the court. I hope public discussion of this matter over the past 12 months will assist the courts to fully comprehend the enormity of sexual offences. I hope also that the concerns of the public, expressed here through the Oireachtas, will have the effect of improving the consistency of sentencing for sexual offences.
I welcome section 5 of the Bill which takes into account the effect of the offence on the victim. It is important to allow for evidence or submissions to the courts on that issue. Consideration should be given to extending this provision to allow a victim who so wishes to be represented before the court before sentence is imposed. The Minister maintains that this is permitted at present and I will seek advice on this. If that is so, then heretofore it would appear that lawyers were unaware that they could, in fact, bring the view of the victim to the attention of the sentencing judge. This would  allow the victim to have her own lawyer who would make a submission to the court on the severity of the sentence that should be imposed and inform the court of the impact of the crime on the victims.
As I have said already, the present situation is that often the victim of a serious offence must sit in court and listen while their attacker, following his conviction, is first praised, character references are presented and pleas submitted on his behalf by people of standing in the community. This can result in a light sentence for the perpetrator of the crime. The opportunity for the victim to make a submission would balance the situation. As well as hearing pleas for leniency on behalf of the convicted, the court would also hear why there should be a harsh sentence if the victim wished to present such a case. It is important that the victim's position should be represented and legal advice should be provided for this purpose.
I welcome section 6 of the Bill which gives the courts power to require offenders to pay compensation to the victim for personal jury or loss sustained as a result of the crime. However, the Bill does not cater for a situation where the offenders have no funds or assets; in such circumstances they are not in a position to pay compensation. Fine Gael calls for the restoration of the Criminal Injuries Compensation Board to make compensation awards to victims of crime. This could be funded by increasing the level of fines and, where difficulties arise in the collection of such fines, facilites should be available for payment by instalment or attachment of income.
We urgently need a victim-oriented criminal justice system. We need a charter for victims of crime, to ensure that victims of sexual and violent assault are compensated and to give social support to victims. We need to ensure that a victim who gives evidence in court is protected against further assault when the offending person is released from prison. We also need groups dealing with victims of crime, such as the rape crisis centres and organisations like the Irish Association for Victim Support.
 I welcome the Bill which is similar to a Bill introduced by Fine Gael in Dáil Éireann. This was not accepted by the Government and was not enacted in law. I accept that this Minister was not in her present post at that time. I would like to make the point that it is unfortunate Governments do not accept legislation introduced by the Opposition. If Bills are presented by the Opposition they should not be seen as a reflection on the Minister of the day but rather as a genuine effort by a Deputy or Senator to address an issue of importance to him or her.
In November 1991 I introduced a Private Members' Bill to decriminalise suicide. This was accepted by all sides of the House as a genuine effort to deal with a most sensitive and human problem. The Minister for Justice at the time accepted that the Bill was in order, yet it was voted down by the Government parties. A promise was made to bring in a Bill dealing with the problem within weeks but nothing happened. We are now 16 months later; yet, the need to look seriously at the alarming increase in the incidence of suicide has not been addressed. The then Government should have used the opportunity given by Fine Gael to decriminalise suicide. Allowing positive proposals on legislation to be brought forward by the Opposition would enhance the role of the Seanad and would allow for a more open and constructive approach. I believe it would complement rather than threaten the role of the Government.
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: You have moved slightly away from the Bill.
Mr. Neville Mr. Neville
Mr. Neville: I was making the point that a similar Bill was introduced in the Dáil and was not accepted——
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: You went on to talk about suicide.
Mr. Neville Mr. Neville
Mr. Neville: That was an example I gave of that situation. I welcome the Bill which is long overdue.
Mr. Crowley Mr. Crowley
Mr. Crowley: First, I would like to  welcome the Minister and congratulate her on introducing this Bill. Any of us can fall victim to a crime. Regrettably, many of us have direct experience of crime either personally or through our family and friends. While much of crime is relatively petty in nature, there has been a disturbing increase in recent times in crimes such as rape, murder and other crimes of violence and crimes of a sexual nature. Being a victim of crime is no longer unusual; unfortunately, it is increasingly a common aspect of modern Irish life. Given this fact there is a clear onus on the Government, and indeed on all parties and on the apparatus of the State, to address the need for victim support and victims' rights. For this reason I welcome the provisions in the new Criminal Justice Bill. It represents a positive step forward in creating a more victim sensitive legal framework.
What is a victim? A victim is any one of us. There are over 2,000 fatalities as a result of murder, manslaughter, dangerous driving, etc. each year. What about the relatives who have to live their lives in loneliness and sorrow? Hundreds of women and children are sexually assaulted every year. What about them and the people who grieve with them? What about those families who have had their households violated by burglary? A criminal act may be directed at only one person but the destruction it causes can affect more than one life. A crime may be committed in a moment but its pain can last for years. A burglary may occur in only one house but its reverberations can be felt throughout the neighbourhood.
We do not have to look very far to see the debilitating effect of crime in urban communities. It erodes the quality of our life, our ability to live as an open and caring community. I say with regret that the day of keeping the key under the mat at the back door is long gone. Fear of crime makes us less open and more suspicious of people and when this happens we all become victims of crime. Reported crime is only the tip of the iceberg as it  is generally accepted that only one in four crimes is notified to the Garda.
It is vital that we become aware of the human aspect of being a victim of crime. Somebody working in the area of victim support once referred to the invisible wounds carried by the victims and their families who could be regarded as co-victims. The physical wounds may have healed but the inner trauma continues. The victim may be subject to a confusing range of feelings. Grief and sorrow can follow the loss of a loved one or a valued piece of property. Anger is also a common reaction and guilt, unfortunately, is also commonplace. Victims tend to blame themselves despite the fact that the criminal is to blame. Fear is hard to avoid. Crime is often life threatening and unexpected. Many victims, particularly old people, continue to live in fear after the event with consequent detrimental effects at a time of their lives when they have the right to expect the best the State can offer.
Studies in the United Kingdom and in the USA indicate that a victim of a violent or sexual attack will be likely to suffer from post-traumatic distress disorder and other psychiatric and psychologically disabling disorders. The individual often develops clinical depression and may manifest other anti-social conditions such as phobic reaction. It can also trigger the onset of a more serious psychiatric disorder such as psychotic breakdown. It is only when we are aware of this vital human aspect that we can establish and implement the necessary victim support measures and I believe this Bill acknowledges this human aspect in the practical measures that it proposes.
The Bill introduces a fundamental principle into our judicial framework, that the court would take into account the effects, including any long-term effects, of the offence on the victim. This principle is to be followed when courts are sentencing those convicted of sexual offences or offences involving the use or threat of violence. This represents a breakthrough in that it acknowledges the basic rights of victims who, I regret to say, were often a forgotten constituency  in the past. In each case it will be for the court to decide how it will inform itself as to the effect on the victim. I hope that in each and every case the court will be sensitive to the trauma experienced by the victim. Such compensation should take into account any physical, financial, social and psychological harm done to, or suffered by, the victim.
There has been much justified disquiet in recent years about the lack of compensation from criminal to victim. In the complexity surrounding an individual case the need to compensate the victim may be overlooked. Therefore, I welcome the Bill's provisions to allow criminal courts to award compensation to victims who have suffered personal injury or loss. The law will now create a situation where the making of a compensation order will be the norm. This is only just. The offender may plead inability to pay but this Bill allows for payment of compensation in instalments. There should be no excuse to let the offender off the hook.
While such compensation is just and only to be expected, no amount of material compensation can make up for the trauma suffered by victims of some crimes. There is no such compensation for pain and suffering. Other forms of compensation are necessary — counselling, practical advice and other forms of emotional first aid. I would like to thank the voluntary organisations which have been providing such invaluable services for some time. These include the Irish Association for Victim Support, the ISPCC, the Rape Crisis Centre and Women's Aid. These organisations provide important specialised help needed by victims of certain crimes. Their importance in the area of victim support cannot be under-estimated and they deserve the support of our Legislature.
I see this Criminal Justice Bill as an important benchmark. It represents the beginning of a necessary process of making our system more victim-sensitive. We must evolve such a system from this point onwards.
I would like to propose some suggestions as to how to progress from here. A  variety of practical measures can be taken to improve the difficult situations faced by victims of crime. Appearing in court can be a traumatic experience for victims. The appearance and customs of the courtroom are often intimidating and off-putting. Often the victim is placed in close proximity to the accused or his family and acquaintances where they can be subject to, at the very least, great discomfort and distress or, at worst, blatant intimidation.
Each court should have a separate room where the victim can wait in comfort before giving evidence. This may seem like a simple measure but we should bear in mind that, for the victim, meeting the accused can reawaken the pain and anguish of the crime itself. Such facilities should be made available in existing courthouses and should be a prerequisite in the construction of future courts. A suite of rooms has been made available in the Four Courts for this purpose with the backing of the Department of Justice and the Judiciary. This simple measure is one way we can act upon what I believe to be the basic principle of victim support, that we should do what we can to make the victim of crime as at ease and as comfortable as possible.
Counselling has a vital role to play in the victim support process. Often the most valuable thing one can do for a victim of a crime is to be a patient and compassionate listener. Offering help is one of the most curative things one can do for any victim of crime. Obviously, for more serious crimes, such as rape, continuing counselling is necessary. I believe that victim-support counselling should be an integral part of our judicial system. A team of specially selected and trained individuals should be available to give emotional support and protection to vulnerable witnesses attending court. These individuals would not be present to provide legal advice but to provide the necessary understanding and support for victims and witnesses. I look forward to a time when such a service is automatically available to all victims of serious crime. Such a service is currently available on a voluntary basis from the Irish Association  for Victim Support. This represents another strand of their valuable work.
It is vitally important that victims of crime are kept informed at all times of the progress of investigations into the crime that pertains to them. Such information is a basic right. It should include whether a person has been charged following the investigation and whether the person is in custody or on bail. It is important that the victim be informed as to whether they will have to give evidence in court. Being kept in the dark can only increase the victims sense of unease and pain.
In the current climate, the Garda Síochána have a very difficult role to play, they face a wide variety of problems, including the threat of physical harm. They come into contact with the victims of crime daily. They know the pain and trauma experienced by victims. Victim counselling and crisis counselling in particular, should form an integral part of the new two year training programme for the Garda Síochána. I was pleased to note that the Garda are establishing, under Deputy Commissioner Tom O'Reilly, a special unit within the Force to deal with sexual abuse cases. This unit is part of the ongoing co-operation between the Garda, the sexual assault treatment unit at the Rotunda Hospital and the sexual abuse clinics at Temple Street and Crumlin Hospitals. This type of co-operation shows us the way forward and I hope it is the beginning of a long and beneficial process.
The media also have a role to play. In recent times the media have played a valuable role in highlighting injustices and the sufferings of victims of crime. It is important that the public are made keenly aware of the human aspect of crime. However, the media have a responsibility to ensure that the victim's privacy is not needlessly violated and that the victim's trauma is not added to by insensitive reporting of the circumstances of the crime. They should always exercise proper restraint and consideration towards victims. By and large, our media have avoided the excesses of their English  counterparts and I hope this remains the case.
This Bill represents the first stage in making the system more victim-oriented, and we should look at other models for future action in this area. One such model is provided by legislation enacted in New Zealand in 1987. This Act is devoted entirely to making better provision for the treatment of victims of criminal offences. It provides for access to services and information for victims. In the case of a charge of sexual or serious assault the views of the victim are taken into account when deciding whether to give bail to the accused. In certain cases the victims should be notified of the release of an offender.
This Act allows for the establishment of a victim task force composed of senior officials from the Department of Justice, the Commissioner of the Police and four nominees of the Minister for Justice. The main function of this task force is to work with the Judiciary, Government Departments and community organisations involved with victims in order to promote the principle of victim support contained in the Act.
The New Zealand Act was referred to by Mr. Justice Budd in a case in 1992 which was reported in The Irish Times on 14 October, when he called for victim impact statements in criminal trials. He suggested that Ireland should adopt a system similar to that operating in New Zealand. That system sets out clear guidelines on what the impact reports should contain, including physical injuries sustained and the treatment received, property damaged or stolen, financial costs incurred and the emotional and psychological effects on the injured party. The judge favoured the police compiling these reports in all appropriate criminal cases. I fully agree with him in this regard.
This Act provides a suitable framework for future development and as such it deserves close examination by all of us interested in victim support. Ten years ago the then Garda Commissioner, Lawrence Wren, stated that, in the overall debate about crime, law and order  and the judicial system, crime victims are the forgotten people. There has been a slow improvement in the intervening years culminating in the welcome provisions of the Criminal Justice Bill before us. However, this process must be ongoing. We must never allow the victims of crime to be forgotten, on the contrary, they must be to the forefront of our thoughts and, more importantly, our actions. Caring for victims is one of the marks of a civilised justice system and one to which we must continually aspire.
I would like to take up a point Senator Neville made earlier about sentencing. It is the practice of the Legislature in our jurisdiction and similar jurisdictions when drafting legislation to set maximum penalties and rarely to set minimum penalties for crimes. If a minimum sentence is specified it does not allow judges margins within which to operate, especially in cases where an offender might have committed a morally blameless act, with no degree of culpability. Judges would not be able to show leniency in such cases. By and large the Judiciary have been very consistent in sentencing. There have been occasional hiccups but in general they are very good.
I commend this Bill to the House and once again thank the Minister for her vision in introducing it.
Dr. Henry Dr. Henry
Dr. Henry: I welcome the Minister and the introduction of the Bill. I am glad to see a victim-centred approach to these cases and I particularly welcome the sections which deal with the short and long-term effects on victims, who will at last have a place within the court to give their opinion.
It is also important that sentences which are considered unduly lenient can be challenged. For a long time the offender has had the privilege of challenging the severity of a sentence but there has been no possibility of challenging a lenient sentence. I do not share Senator Crowley's view regarding consistency of sentencing. In common with the public I am quite often astonished at what is considered a suitable sentence for an extremely serious crime.
 The Judiciary will have trouble implementing parts of the Bill, particularly the section which provides that the long-term effects on the victim be taken into account. These effects have always been grossly underestimated. It is difficult to equate the effects of a minor assault on an aged woman whose bag is snatched on a canal bridge and the effect on a young man who receives a serious beating but who gets up and goes out again. I know of elderly women who were prisoners in their own homes after their handbags were snatched and they were too terrified to go out again. One constantly hears of women afraid to go out after dark. It is extraordinary in a well-lit city that women are so terrified that they feel they cannot walk safely on the streets. There may be difficulty in assessing the seriousness of the effect on the victim. It may be equivalent to a prison sentence on them.
We are all potential victims. Any person's handbag can be snatched and anyone can have their car window broken. It is very important that we identify with victims because that will ensure that we take a realistic approach.
I am concerned that once compensation is awarded to a victim some people may attempt to wriggle out of paying by showing that they have no funds. It is absolutely essential that there is no contact between the victim and the aggressor in getting compensation for the crime. It seems to be very easy to plead inability to pay.
It is very important that victims are to be given a voice in court. In the past when victims have been asked to come forward and speak, I have been extremely surprised by how pleased they have been to do so. It seemed to give them a great deal of psychological strength to have had some part in the case, whereby they at least had an opportunity to express how they felt. The Minister's emphasis on this point, is to be welcomed.
The increased sentence for incest from seven to 20 years where victims are over 15 years of age is very important because, particularly between father and daughter,  the discussion of consent is impossible. A victim may have been in a position where consent was not something that she could have been described as giving because, as in the recent Kilkenny case, she may have been so terrified that she, and perhaps her mother, felt there was no one they could approach. Consent in such cases does not arise.
I question how much the increased sentence will help incest victims, apart from keeping the offender away for longer. When a person has served a sentence there is no way he can be kept away from the victim because the offender is considered to have paid the price for his crime. The Minister may have to examine this further and consider if some family agreement is required so that an aggressor can be accepted back into a family unit. Crime does not affect just the victim. It affects a whole grouping and in the case of incest it affects the whole family group. I often wonder if incest is seriously considered a crime in this country. Because so much emphasise is put on the family unit, any challenge to it appears totally disloyal.
All the churches condemn incest but I often think it is just from the point of view of eugenics. They speak out strongly against it because the progeny of an incestuous relationship are more likely to have either physical or mental abnormalities. I would like the churches to speak out more strongly against the horrific social implications of incest. I have not seen many pastorals or sermons on the aspect.
It is very important that we stop concentrating on figures for serious crimes within the family such as incest. It does not matter if there is only one case in the entire island. Surely it is sufficiently serious for us to want to deal with it. It is irrelevant to say there are very few cases of incest because not many come before the courts. Incest is a serious crime which destroys not only the victim's life but also the lives of those around them.
Serious efforts have started in the Departments of Health, Education and Justice and I commend the “Stay Safe Programme” which the Minister for Education  has introduced in schools. If there is one person outside the family that a child may feel able to approach, it is the teacher. Strides have been made but I would like the Minister for Justice to cooperate with the Minister for Education in considering if reporting by teachers should be mandatory. At present teachers must report to the head teacher but perhaps they should report to the community care officer, who is the only person with statutory power in these situations.
There is a rhyme in the “Stay Safe Programme” which reads:
Sometimes I get scared in this big world when bullied by boys and laughed at by girls or hugged in a way that makes me say no, it is never my fault and I must tell someone I know.
“It is never my fault and I must tell someone I know” must be stressed. If the crime is within the family the only hope for a child is to get help within school. I urge the Minister to consider mandatory reporting by teachers. I was involved in setting up the sexual assault unit in the Rotunda Hospital and we thought we would be dealing with cases of adult rape and looking for forensic evidence for the Garda. However, within weeks we were flooded with teachers who had nowhere to bring children before. I urge the Minister to look at this matter, although it does not come within the scope of this Bill.
It is important that children know there are some adults who will take care of them. People have a moral responsibility, not just a legal responsibility, to help abused children. General practitioners should be obliged to report to the community care officer any cases where they think there is evidence of sexual abuse. They are more alert with regard to physical abuse. However, GPs cannot deal with this on their own, since not only do they not have enough individual training, but they are already involved with the family. It is important that the Minister considers mandatory reporting by the medical profession. I stress that we have a moral responsibility to these children.
 Senator Crowley talked about victim support and about centres for victims of crime. We are all aware of the good work carried out by the victim support units, the rape crisis centres and the ISPCC, but these services must be properly funded if victims are to have somewhere to go for help. With regard to the Kilkenny case, had there been a rape crisis centre there the girl and her mother might have sought help.
The Minister knows the cost of keeping persons in prison is astronomical compared to the money required by voluntary agencies to carry out their work. It is not just the amount of money given to voluntary agencies that is important. They see this funding as a recognition of their work and, in my experience, respond with double the amount of work expected. In comparison to what it costs to keep someone in prison, very little money is required for the provisions of the Child Care Bill, 1992. No extra funding has been given for community care although this will be the support mechanism for victims.
The Minister talked about the rehabilitation of the abuser and about the Garda. I rarely hear of complaints against the Garda in these cases as they do the best they can in the circumstances. I suggest to the Minister that she seek to reduce the time delay between the charging of the abuser and the court case taking place. This puts incredible strain on the victim and the family. There is a weakening of the evidence within the family the longer the delay goes on because pressure is brought to bear on them from various sources. The mother's evidence may become weaker and other members of the family may be inclined to say that the alleged abuser was not so bad after all.
The Minister said the delay in the review of cases should be only 28 days. I ask her to consider something similar for serious cases of abuse, to ensure that there is not a one or two year delay before the cases eventually get to court. The alleged abuser in that time may have had to leave the family house and the turmoil within the family continues.
 The Minister did not mention the training of judges but it is something that will have to be considered for the sake of all victims, particularly victims of sexual offences. Some of my best friends are High Court judges and I have nothing against them. Generally speaking, judges have a rarified existence and do not meet outside the courts the victims of crime and sexual abuse. It might be felt that judges should remain isolated from victims, but I think that judges would welcome some form of training or structured seminars. I urge the Minister to consider this not just to ensure that sentencing is more consistent but also to instruct judges as to the long-term effects on victims, the frequency of these crimes and the effect on the broader society.
The abuser may plead guilty or innocent in court. The victim may suffer great trauma through facing the offender in court. Sentencing policy should reflect that.
In cases where sexual abusers within the family are convicted, the urgency of treatment in prison cannot be stressed enough. I know the Minister has set up a specialist group to investigate treatment for sexual abusers within the family and it is a very difficult problem. The difficulties were highlighted in a recent television programme on the Gracewell institution in Birmingham for sexual abusers. The objections of the local people to having this centre within their community were forcibly made known as were their feelings that they were not consulted. Attempts to set up a similar centre in Coventry had to be abandoned because of the antipathy of the local community.
The Minister has a problem here because if people are treated solely in a prison setting they are not allowed access to those people to whom they have a moral responsibility. People in prison have little association with the outside world. Many prisoners do not watch programmes showing the disgust for people who have offended against children or against anyone else. People in prison become isolated from the rest of society. The Minister will have to set up programmes  in the prisons. There are programmes in America and Canada which have tackled this problem. One must not underestimate the difficulties. It must be made perfectly clear to people with inclinations towards sexually abusing children that this is wrong and must be overcome. It is an extremely difficult problem and I am sure the Department is not underestimating it.
Setting up group support for abusers should also be considered. In these groups, previous abusers point out the seriousness of these actions to the newcomers. Abusers are always inclined to minimise the effect of their actions on the victim. It is important that this be tackled immediately the person is imprisoned. Mothers also need counselling, because they also experience feelings of guilt, terror, and of rejection by the rest of the family for failure to protect the children. The siblings of the abused child also need to be counselled and family therapy must be undertaken. All this is expensive, but so is keeping people in prison. Long-term research has shown that abused children and their siblings experience low levels of self-esteem and as they grow older, they have difficulties in forming personal relationships. They might go on to abuse alcohol, drugs etc.
Children are not always violently attacked by their abusers. Even in dreadful cases, they have been called “daddy's good little girl”. Because they have been abused by somebody they should love and trust, they repress their hate, terror and anger. I wonder if some non-violent situations are even more scarring for the abused child? If violence is involved, at least they can see there is something wrong.
The guilt felt by the child in keeping this relationship secret is another problem that must be addressed. In some cases, they will have to be taken to places of refuge and there are no such State-supported houses. There is only CARI, which is supported entirely on a voluntary basis. The Minister will have to make sure that the victim is not abused again by the offender, who might be out  on bail. I find it extraordinary that CARI, a house dealing with sexually abused children, should have a waiting list.
When the abuser has finished his sentence he is free to return to his family. Could the Minister find out if this would be acceptable to them? After all, they have rights too. I do not know if there is any legal measure that could prevent this but it is important.
I welcome the Bill and hope that the lessons we learned from minimising what happens in these cases will be taken up by the Minister. I was pleased that she straightened out the situation with regard to video taping. It looked as though we were going to have a red herring with regard to those cases. I commend the Bill to the House.
Ms Gallagher Ms Gallagher
Ms Gallagher: I welcome the Minister to this House and I agree with the provisions of the Bill. It has four objectives, which are quite diverse but have a common theme. First, it will allow the Director of Public Prosecutions to order a review of unduly lenient sentences to be heard by the Court of Criminal Appeal. Second, in the light of recent sentences imposed by the Judiciary, this Bill seeks to increase the maximum penalty for incest against a female over 15 years from seven to 20 years, which redresses an existing anomaly. Third, the Bill provides the criminal courts with the power to require offenders to pay compensation to their victims. As a corollary, the Bill has a fourth objective, which is to place an obligation on the court to take into account the effect of sexual or violent crime on the victim.
The law dealt with cases of sexual abuse or violence from one side only and did not provide any assistance for the victim who, in most cases, suffers physically and psychologically long after the case has been dealt with. Therefore, I welcome the provision which allows the court to take into account the effect of the crime on the victim when determining a sentence. At last, there is some practical assistance in the form of compensation, which is made payable by the convicted person to the victim.
 I compliment Senator Crowley on his marvellous contribution. I agree with most of the points he made.
I have no problem with the interpretations in section 1, but on reading section 1 (3), I would query whether the Bill, when enacted, could be applied to cases where the accused has been found guilty, or has entered a plea of guilty, but where sentencing may have been adjourned by the judge to allow certain reports to be submitted on the convicted person. If so, this Bill when enacted could affect some people unfairly.
Section 2 is important because it allows the Director of Public Prosecutions to apply to the Court of Criminal Appeal to review a sentence which appears to him to be unduly lenient. The wording used is satisfactory as it will allow a review only where a judge is seen to stray significantly from the accepted principles of sentencing, i.e., where one sees a judge making a serious error in light of the relevant factors. I welcome this move and feel that few cases will fall into this category. We are not opening the floodgates and I do not believe it will overburden our courts. It strikes a balance between the accepted legal principle that the sentence imposed by a criminal court shall be final — this entitles the accused to know that the sentence imposed will not be altered except in serious circumstances — and the need to review sentences by judges who stray from acceptable standards.
Section 3 allows an appeal on a point of law to the Supreme Court by either party, where it can be certified that a point of law of exceptional public importance is involved, and where an appeal is desirable in the public interest. I cannot see that happening very often as the issue of sentencing is unlikely to involve any disputed question of law. Nonetheless, a mechanism for appeal should be available and I am glad this Bill expressly provides for it. Will the Minister confirm that legal aid will be provided for the convicted person in any review case or appeal from same? There is no point in providing rights if financial difficulties prevent one from availing of them.
 Regarding the right of appeal to the Supreme Court, can the Supreme Court, on hearing such appeal, review a verdict of acquittal on an accused person? Such an acquittal will already have been decided by the trial court and subsequently by the Court of Criminal Appeal. I do not wish to get technical on this, but it is something that I would query. Can the prosecution be given a third chance to find a person guilty through this section by bringing a case to the Supreme Court? I would hope not, and I ask the Minister to consider this matter.
Does the Bill allow the defendant to appeal from the Court of Criminal Appeal to the Supreme Court where, on review, the sentence has been increased? The problem arises when the defendant is treated leniently by the trial court, and therfore, does not appeal. If the Director of Public Prosecutions seeks review to the Court of Criminal Appeal and the sentence is increased, the convicted person has not had an opportunity to present his or her case for appeal. This Bill may cause a problem in this regard by limiting an accused person's right of appeal to the Supreme Court on a point of law only.
In relation to section 5——
An Leas-Chathaoirleach An Leas-Chathaoirleach
An Leas-Chathaoirleach: I ask the Senator to refrain from referring to the sections of the Bill. This is a Second Stage debate and we will deal with the sections on Committee Stage.
Ms Gallagher Ms Gallagher
Ms Gallagher: I appreciate that but it is easier to discuss this Bill in sections. I am not referring specifically to the wording of the sections.
A provision in this Bill allows the court to take into account the effect of sexual or violent offences on the victim. At present, when an accused person pleads guilty there is no provision for the victim to give evidence even when the case is heard. Evidence of the effect of a crime on the victim is currently inadmissible. Under the new legislation the court may consider the effect in whatever way it sees fit. This provision will lead to fewer  sentences being reviewed by the Court of Criminal Appeal and this should be a help in an already overburdened system.
Information regarding the effect of sexual or violent offences on the victim can be obtained through practical means, for example, a doctor's evidence, a report from relations or from others who will testify in court to the satisfaction of the judge. Therefore, the victim will not have to return to the court to give further evidence. There are other ways of dealing with this. I welcome this provision which will greatly assist the victim.
The provision of practical help which is necessary for victims is an important aspect of this legislation. It introduces a means by which the courts can award compensation where the victim has been caused injury or loss. At present, that power is available only in cases of criminal damage. At this time when so many people suffer as victims of burglaries, mugging, joyriding, etc. it is good that at last one can seek compensation from the convicted uninsured joyrider — as is normally the case — and for a burglar or other criminal. The Bill provides that the method of payment for compensation will be made through the District Court clerk. This system is used in the case of maintenance and other orders. I share the concern of Senator Henry regarding the efficiency of this system to ensure that the victims receive the moneys awarded.
I suggest that the Minister establish a fund to compensate victims of crime, levied from fines and perhaps collected by the courts. A system of levying fines to fund victims through a victims task force is in place in New Zealand under the Victims of Offences Act, 1987 and it is working well. Perhaps the criminal injuries compensation scheme could be reintroduced in a revised fashion? It is something worth considering.
The Bill contains a technical provision which makes it clear that evidence given by video does not require a written deposition. This is something which needed to be clarified, although I thought it was made clear in legislation introduced last year.
 The Bill deals with an issue first raised in this House in relation to the Kilkenny incest case. It contains an important section which amends the Punishment of Incest Act, 1908. In cases of incest against women over 15 years it increases the maximum sentence from seven to 20 years imprisonment. Sadly, recent cases have shown the need for this provision. It reflects the serious nature of this crime which affects the victim badly and can happen easily in the uneven power balance which naturaly exists between father and daughter. The sentence for such a hideous crime should reflect it seriousness. Treatment and counselling is necessary for victims and offenders in the case of sexual crimes. Only then will we be able to work towards a society where the health and safety of women is not always in danger.
I ask the Minister to consider an obvious anomaly, namely, a life sentence means an average of eight years in prison, while a 20 year sentence means 12 years in prison. This affects all court sentences and it should be examined immediately in order to secure fairness and consistency of sentencing.
This Bill is the first measure I have seen which focuses on the victim of crime. It is a significant step in making our criminal justice system more responsive to the needs of the victim by providing for compensation and empowering the courts to consider the effects of a crime on the victim. It is long overdue but better late than never. I have queries regarding the wording of sections which I will raise on Committee Stage. I welcome this legislation.
Mr. Enright Mr. Enright
Mr. Enright: I wish the Minister, Deputy Geoghegan-Quinn, well in her new Department. The Minister is hardworking and she will give this Department the attention it needs and deserves.
This legislation is necessary and urgent and I welcome this Bill. Most people are in favour of the proposals contained in it. The Bill was brought forward as a reaction to recent events and it is a pity that such events make it necessary. It is important that the courts are in a position  to impose a maximum sentence on a criminal. In addition, a criminal may now be ordered to pay compensation to the victim.
Much discussion has taken place in relation to sexual abuse within families. It is necessary that victims give their version of events to the relevant authorities, the Garda Síochána, social workers, etc. so that the case may be brought before the courts. When the victim of a crime is prepared to come forward and give evidence to the Garda Síochána the offender may be prosecuted. Tragically, few people are prepared to come forward with evidence against those who are inflicting these horrific injuries on them.
The authorities must ensure that facilities are available to protect people who report such crimes to the Garda Síochána, the health board or the relevant authority. Many daughters and wives would willingly report their fathers or husbands but for the fear that they would suffer worse injuries than those they have already endured. That is a problem which must be tackled.
There are also problems associated with evidence in such cases and the necessity to make statements to the Garda Síochána. Some people suggest that the gardaí interview people and seek evidence against an individual when a crime is committed in the home but this is a delicate area. We saw what happened in Scotland where over-officious health authority workers, who took children from their parents in the depths of night, caused division and tragedy of an unprecedented scale. We must guard against that happening here.
I do not think that a garda can call to a house and ask a daughter or wife if they have been molested or raped unless they are willing to report such crimes. I know of medical practitioners who have been left in a difficult position when they tried to bring cases and the injured individual did not pursue the claim. However, medical professionals occasionally make judgments and complaints that are not justified. The bottom line is that 24 hour protection for a complainant is essential while their claims are investigated.
 I accept the necessity to review unduly lenient sentences. I stress the words “unduly lenient” because there are sentences which some people consider too severe and others consider too lenient. There must be an obvious error whereby the sentence is lenient, and seen to be lenient. In that instance it is essential that there be a provision in this Bill to review an obviously lenient sentence.
In that context I would like the Minister to issue appropriate guidelines to the Director of Public Prosecutions. It was obvious that the sentence in the Kilkenny case was unduly lenient. However, there will be other cases and I do not want to see a hang them attitude prevailing where public opinion and media reaction, without having all the facts, decide that some individual has committed an offence and the Director of Public Prosecutions, the Department of Justice and the judicial system has no suitable means to combat that situation. The Director of Public Prosecutions must work within proper guidelines and even if the media or some other section of the community decide a judge imposed a wrong sentence we would not be trapped in a situation where we react to every individual case. I may be conservative in saying that but our judicial system in spite of its warts has worked reasonably well. It is to the credit of our courts that in view of the number of decisions made — despite certain cases where sentences are considered too lenient, or too severe — decisions are within the guidelines and are acceptable to the general public. The judges hear the evidence and try to be fair and impartial. It is essential that a judge, when imposing a sentence of three years, five years, 12 years or 20 years should give his reasons. If it is an unduly harsh sentence or it is less than the public anticipate, the judge should explain the reason for the decision. Then the general public, when the case is reported, will realise why the judge made his decision. I am happy that the appeals will be to the Court of Criminal Appeal.
I have reservations about the 28 day period during which the Director of Public Prosecutions has the opportunity  to have a sentence reviewed; I believe it is too short. This takes place when a conviction is recorded. I have an outsiders knowledge of the procedure in the offices of the Chief State Solicitor; the Director of Public Prosecutions and the Attorney General; when a case is reported the Director of Public Prosecutions sends for files which have to be reviewed, there must be consultations and the matter may go to a council to be investigated and reviewed. The 28 day period is a short time in which this work must be done and, if this is a statutory provision the Director of Public Prosecutions must not be a day late in lodging his application for a review.
Some years ago I had a case where a judicial review was sought and, as the State was a day late in lodging its application for a review, the case was struck out. If the sentence for a horrific crime imposed on 19 December is considered unduly lenient, the DPP may be late in lodging an appeal against the sentence because of the holiday period. Public opinion would be rightly outraged in that event. A two month period would be more appropriate in this instance. We are talking about the rare instances but we should ensure they are properly covered. I ask the Minister to examine that.
In the Dáil and Seanad, the Minister referred to the effect of crime on the victim. It is essential that the court have an opportunity to hear about such effects. This too must be examined. Judges normally impose a lesser sentence when a person pleads guilty because the victim is not cross-examined. This spares the victim and the family trauma, stress and worry.
There has been no opportunity to date for the victim to give evidence about the trauma. The Minister stated in the Dáil that if a person is convicted, no doubt in many cases a report by a doctor will suffice. We have a duty to strike a balance. If the crime is serious the person convicted can be remanded in custody. During that period the State should be able to compile its evidence. Unless by agreement, medical reports should not  be included in writing. A doctor may think a crime is insignificant but another professional might also issue a report but not be cross-examined on it — they may have an interest in the case. In fairness to everybody, that professional person's evidence should be subject to cross-examination. It will not affect the victim but the convicted person's lawyers should have an opportunity to cross-examine a professional witness. I ask the Minister to look at that as well.
I now turn to compensation in criminal cases. Currently, judges are adjourning sentences to ensure that a person pays compensation. This is commonplace in District and Circuit Court criminal cases. The majority of judges have common sense. If a person is convicted for a crime they adjourn the case for sentencing. If the person pays adequate compensation to the injured party that is taken into account in imposing sentence. Nevertheless, since this procedure is only being implemented in some cases it is welcome that it is now put on a proper statutory basis. Section 6 makes certain compensation will be awarded.
Overall, the Bill is welcome and I look forward to Committee Stage tomorrow afternoon. The Bill can be very useful and it should be adopted by the House.
Mr. Bohan Mr. Bohan
Mr. Bohan: I, too, welcome this Bill. The Minister is to be congratulated for the speed with which she introduced these measures when the weakness in the legal system was brought to her notice. Like the Minister, all of us in this House were appalled by the insult and injury inflicted for many years on the young Kilkenny girl by her father and at the leniency with which these crimes were treated.
Whether it is an original sentence or a sentence reviewed under the Bill, it is important that the Minister ensures that courts can be satisfied that if a sentence is imposed it is served. I am referring to the lack of suitable prison accommodation and the fact that on a regular basis prisoners have been released without serving their full sentence to make space for others. In many instances persons  sentenced to lengthy terms of imprisonment are released within weeks because of the lack of prison space. This makes a mockery of the penal system and does nothing to discourage criminals from the error of their ways. It must also be an inhibiting factor in the imposition of custodial sentences if the Judiciary are aware that such sentences are unlikely to be served.
The provision of additional prison accommodation is an urgent necessity and I urge the Minister to take this issue on board in conjunction with the measures proposed in this Bill. I appreciate the financial implications and the difficulties for the Government in undertaking a building programme at this time, when public finances are stretched. However, many private firms are prepared to undertake the capital cost of building prisons and to enter into leasing arrangements with the Government. Prison accommodation is provided in this way in many countries, notably the United States, Australia and Canada and recently in the United Kingdom. I ask the Minister to explore this possibility if an early solution to the shortage of such accommodation.
I am pleased to see the measures in this Bill requiring offenders to pay compensation to the victims for any resulting personal injury or loss and that the courts must exercise this power unless they see reason to the contrary. For too long victims have been the losers. It is time wrongdoers were made to pay.
Over the past two decades we have developed a liberal attitude to crime and the treatment of criminals. We must change this approach. Ordinary law-abiding people need to see that we the Legislature are concerned about the problem. Many people no longer feel safe in the sanctuary of their homes, on the streets, in their cars or elsewhere, particularly in the Dublin area.
If crime and violence in our society are to be properly tackled, a number of matters must be taken on board by the Legislature. We must introduce Bills like this, creating specific offences with specific penalties and with greater powers of  arrest for the Garda. The bail system must be fully examined. Bail must be restricted. We cannot continue as a civilised society if we allow murderers and rapists out on bail, free to continue their criminal ways. Crimes committed on bail must be subject to consecutive sentences. The present judicial practice of imposing concurrent sentences for such crimes makes a farce of the penal system. It encourages criminals to commit as many crimes as possible while on bail as they know that invariably they will only serve a sentence in respect of one of their crimes. For speedier trials and fewer adjourments the law must be seen to work, and work quickly.
More prison accommodation needs to be provided. It is said the greatest single deterrent to criminal activity is the fear of imprisonment. That fear does not exist here as we do not have enough accommodation and prisoners are being released without serving their sentences. Criminals are aware of this fact and are laughing up their sleeves at the system. This must stop. As I have already said, available options to provide more space must be explored. I compliment the Minister on this excellent legislation. Its purpose is to deal with specific problems and I hope it will help to reduce the level of violent and repulsive crimes.
I compliment the Minister also on the actions she has already taken to improve the level of policing in Dublin. However, I ask the Minister to look seriously at the other issues I have raised and to bring forward whatever Bill or measures that are necessary to deal with the very serious criminal problems that plague this city and this nation. I commend this Bill to the House.
Mr. O'Toole Mr. O'Toole
Mr. O'Toole: Everybody has been waiting for this Bill and its introduction. However, many will say it is somewhat late in arriving when we recall the outcome of the Kilkenny rape case last year which caused such outrage among the general public, and the recent Kilkenny incest case which provoked a similar reaction.
The last thing I want to do in discussing  this Bill is to make cheap political points across the floor to the Minister. I accept that the Minister has dealt with this situation in the best possible way and I applaud her and the Government for bringing this legislation to the House at this time. However, I regret, that because the Dáil did not sit during the month of January this legislation is too late to deal with the recent Kilkenny case. There was no reason the Dáil should not have sat in January. The Minister of State made reference to this in a television programme saying it was legislation that might have been dealt with during that time when the issue was first raised. I regret that was not done. Because of that, I intend moving an amendment to the Bill which would make it retrospective. I know this will be resisted by Government and by the other side of the House but I intend, nonetheless, to move an amendment to make the Bill applicable to all sentences passed from 1 January 1993.
I would like to raise a question about the general prison population. There was a report in one of today's newspapers that the percentage of members of the prison population in Ireland suffering from a mental disability or handicap was far greater than in any other country. I want to raise a point which I have consistently raised in this House. Why is it that a huge percentage of our prison population comes from the same socio-economic group, from underprivileged and deprived areas, mainly the inner city areas? Why is it that 70 years into Independence a nation whose Proclamation talks of cherishing equally all the children of the nation has gone wrong? One can walk into the maternity ward of a hospital and see babies whose parents are from Darndale, Ballymun or the inner city, and know even at this stage of their lives that their chances of making it through the system are reduced. What have they done to deserve that? Why is it that people in prison seem to come from the same area? This is not a cheap political point; we all have to take responsibility for it but there is something wrong with a system that produces such a result.
 Succesive Governments and educational systems have reinforced inequity, have consolidated disadvantage and have ensured the continuation of underprivilege with the result that the people sentenced to prison largely come from the same social class and the same areas. It sometimes strikes me it might be cheaper to build walls around some of our disadvantaged areas than maintaining our prisons. It always saddens me to hear the point made now by Senator Bohan for more prison places. Surely that is not the answer to the problems of society? It is of no earthly use to an elderly woman living on her own who has been attacked, raped or simply frightened, to know that there are more prison places because there are always people to take up the places. There is something wrong in such a system.
Time and time again I have expressed the view that intervention must begin with education. We have failed to do that. The cost of keeping children who have been in trouble with the law in places like Trinity House or Ferryhouse is far in excess of what it might take to intervene with a solid, educational, psychological counselling service and support services at home level. As long as we fail to do that we will continue to be faced with the kind of outrage we all share about cases such as the Kilkenny incest case. Do not tell me that any caring, educated, sensitive person could have treated his daughter like that man treated his daughter. There is a flaw in the system that brings us to that point. If a person steps out of line, the law must be clearly seen to act. People must have confidence in the law and they must be sure that those in charge of the law do everything possible to ensure that the sentence matches the crime.
Every time there is a prison suicide somebody jumps up and blames the Government and calls for the resignation of the Minister for Justice. That kind of knee-jerk reaction has always bothered me. It is everybody's loss if somebody commits suicide, whether it be in jail or otherwise. We have to look at the underlying causes. I would like to ask the  Minister if it is true that the incidence of suicide among the Irish prison population is way above the average for Europe? I do not know if that is the case; I have sought information on the matter and I would like to have clarification. If there is a problem let us admit as much and see if we can deal with it rather than have the same predictable reaction on every occasion.
Where a judge passes a sentence which the public feel is inadequate, it is only right that the whole panoply of the State should move into operation to ensure that an appeal can be made against too light a sentence. This has been the case in the UK and other European countries and it is past the time it happened here. The sad part is the reaction it creates among people in many other places. There are many abused women and children who will not come forward to report their suffering, their private trauma, the extraordinary events which mark them for life because they see what has happened in similar cases and they do not think it is worth all the hassle.
There is evidence to show that abusing adults have frequently been abused as children: Intervention is required to break this cycle of learned behaviour.
It is through education that we should address the socio-economic disadvantages affecting growing numbers of our population. Child sexual abuse prevention programmes are essential and it is unfortunate despite the seriousness of the problem that some influential people in this country object to making prevention programmes available to children, teachers and schools.
The reality of child sexual abuse is that it continues from generation to generation, the abused child frequently becoming the abusing adult. I hasten to add that this does not happen in 100 per cent of cases. In 95 per cent of the cases I regret to say the abuser is male.
We need to address the problem of child abuse in a number of ways. Providing for appeals against lenient sentences is equivalent in a sense to closing the stable door after the horse has bolted.  It deals with the effect of the problem rather than the cause.
I applaud the Department for bringing forward this Bill to which I will table a number of amendments on Committee Stage. Causes of child sexual abuse must be examined. We need to investigate also why much of the prison population is drawn from one social class. These issues can only be addressed through the education system and I ask the Minister to ensure that greater emphasis is placed on education in projects in which the Department of Justice is involved, such as the North Clondalkin Project.
Almost all children pass through the primary education system and the Minister should recognise that at that stage the juvenile liaison officer, the probation officer, the health visitor, the psychologist, the teacher and other caring professionals could come together to identify and help children at risk. I ask the Minister to look seriously beyond the scope of this Bill to the underlying cause of the problem and to respond through the educational system so that this kind of fire brigade action will not be necessary again.
Acting Chairman (Mr. Calnan) Acting Chairman (Mr. Calnan)
Acting Chairman (Mr. Calnan): Is it agreed that Senator O'Toole share his time with Senator Norris? Agreed.
Mr. Norris Mr. Norris
Mr. Norris: I welcome this Bill together with the Minister's opening remarks to the House that the Bill is intended to be victim oriented. Traditionally criminal legislation has been oriented principally towards securing the conviction of the guilty party and there has been little interest in the feelings of the victim, particularly in cases of alleged rape or incest. As the Minister indicated in her speech, very frequently a woman who has the courage to make an accusation of rape against an attacker, is subjected in court to a most rigorous and frequently offensive cross examination about her past sexual history. I have always found this practice unacceptable. The sexual conduct of a victim whether married or unmarried, seems to me to have no bearing on the truth of her allegation.  It is regrettable that past sexual history has been taken into account by a male dominated legal system. Victim oriented legislation is in tune with the times and with the objectives of groups such as the Irish Association for Victim Support.
There is public concern about apparent anomalies in sentencing policy for a considerable number of years and in some circumstances this concern is clearly justified. In the case of a person I knew who was murdered in Fairview Park simply because he was gay the judge did not even impose a custodial sentence. I cannot remember whether the Probation Act was applied or whether some kind of suspended sentence was imposed but I found it offensive that later, the convicted persons paraded in victory around the block of flats where they lived. This case is directly parallel to a case last year in the northern part of this jurisdiction where a woman was subject to sexual violence, and a court case ensued. The several men convicted were given suspended sentences, light sentences or the Probation Act and, I understand from newspaper reports, were welcomed home by local people, like conquering heroes.
This kind of behaviour creates considerable public concern and alarm and I am glad that the Minister is responding to this general concern. There is clearly a string of anomalous cases in which legitimate public concern has been expressed and most people would agree that serious anomalies have arisen in sentencing policy. However, case details and evidence presented in court cannot always be given the kind of media coverage required to illustrate the reasons for a judgment. Sometimes where elements of a case are not disclosed to the press, the judge may have sufficient reason to impose sentence that appears anomalous to the casual observer.
Not all sentences that appear anomalous are so and I know of cases in which it was only possible to secure a conviction on a lesser charge when the accused was manifestly guilty of a more  serious charge. In such cases sentence for the lesser crime was imposed. Occasionally, a discreet degree of plea bargaining takes place to enable the prosecution to put together a case that will stand up in court, so it may not be the judge who is responsible every time an apparently anomalous sentence is passed. We should be careful not to pillory judges unjustly although there have been cases justifying concern. If somebody convicted of rape or murder can be given a slap on the wrist and the benefit of the Probation Act, then something is seriously wrong.
I use the word “anomaly” because clearly judges differ on sentencing policy. An attempt should be made to standardise sentencing policy and it might be beneficial to provide some form of seminar for judges on this matter, so that a kind of collegiality of policy could be established. I am not an unequivocal admirer of all things American but the American legal system is roughly similar to ours. Ireland and the United States have constitutional backgrounds and constitutional decisions of the Supreme Court of the United States are used as persuasive arguments in constitutional actions here. The parallel does not extend, however, to the training of judges. In Ireland judges are frequently appointed without any training except for their experience as an advocate or solicitor. This practice is not satisfactory. In the United States of America prospective judges attend an educational institution for judges where they undertake a training programme which includes lectures and workshops on the sentencing policy. It would be a good idea if the Houses of the Oireachtas established a similar programme. Before judges in the United States are apprenticed to more learned judges they gain experience from somebody who has a greater degree of contact with the law before they hear cases on their own. The Minister could examine this possibility, because it is perhaps a little unfair to expose judges to a situation where their judgments may be subject to question, if we, as a society, are not prepared to give  them any training for a role that has serious consequences for accused persons and victims. After all, it is no slight thing to deprive a man or woman of liberty as a result of a sentence.
Will the Minister state if the Department only considered allowing for the appeal of too lenient sentences? There have been instances of sentences that were too harsh and there as no machinery by which this process could be reversed. If the Minister looked through the Department's files he would see that I raised on the Adjournment in the previous Seanad precisely such a case of manifest injustice to a person. A mechanism for examining too harsh a sentence should also be considered.
This Bill was introduced as an appropriate response to recent cases, particularly the Kilkenny case. The victim in that case is concerned that after four or five years in prison her father might, on his release, pursue and attack her again. I hope that there will be protection — even years down the line — to ensure this unfortunate woman and her child will not be subject to harassment.
I welcome the Minister's remarks on the rehabilitation of offenders: they are full of good intentions, but the Minister and the civil servants in the Department of Justice know that, there is no such provision in our system. Case after case is reported in which people are directed by courts to have remedial psychological treatment but it never happens because the apparatus does not exist. Perhaps we can have real commitment because I do not believe in just punishing people. As my colleague, Senator O'Toole said, frequently the people who inflict this kind of misery on young people within their own families have themselves been victims of sexual abuse in their childhood. Therefore, if we intend to intervene and stop this nauseating chain of events there must be proper provision for rehabilitation.
Miss Ormonde Miss Ormonde
Miss Ormonde: I welcome the Minister of State, Deputy O'Dea, to the House and I congratulate the Minister for Justice,  Deputy Geoghegan-Quinn, on dealing with this Bill so promptly.
This Bill is orientated towards the victim as many Senators said. One of its primary aims is to look at the victim's situation in criminal justice process with regard to rape.
Section 12 deals with the penalty for incest. The recent case in Kilkenny involved the inhuman treatment and horrible physical and sexual abuse of a young girl. That case brought home the terrible problem of incest and some members of the Judiciary are so out of touch. I agree with other speakers who said that our judges are living in ivory towers where they have little empathy with or sensitivity to real victims. They are too clinical in their approach and perhaps new training for judges is needed.
In the Kilkenny case the imposition of only seven years' imprisonment was a disgrace. I understand he pleaded guilty to rape as well as to incest and the judge could have given him any sentence up to life imprisonment. The excuse for not doing so, apparently, was that seven years' is the maximum penalty in a serious case of incest. Increasing the penalty to 20 years will make it clear to those who impose sentences that where a father commits rape and incest against his daughter the proper sentence is in excess of seven years.
One of the national newspapers claimed that the Government's decision to increase the penalty for incest is a panic response. There was a public outcry and the Minister responded to a clear need to change the law swiftly and decisively. If she had not responded so efficiently there would have been articles in some papers complaining about the Government's inaction. The Minister is to be praised for her response in this regard.
This Bill was not introduced to deal with incest so I do not wish to speak for too long on that subject. I understand why there was full support in the Dáil for increasing the penalty for incest. This Bill is a mine of common sense and I hope the Minister continues this approach in the other Bills she will introduce to the  House; allowing review of unduly lenient sentences, taking into account the effect of a crime on the victim and getting the offender to pay compensation to his victims are measures that everyone can understand and appreciate.
The Bill empowers the Court of Criminal Appeal to review unduly lenient sentences at the behest of the Director of Public Prosecutions. Of course sentencing is not an exact science and, therefore, we must consider variables such as an admission of guilt, age, mental capacity the relationship between father and daughter and rehabilitation in relation to sentencing in such cases. Of course, society is rightly disgusted by such crimes and we must legislate to deter offenders.
The court will have the power to review, not only sentences imposing terms of imprisonment or fines, but also other orders made by courts on conviction, such as probabation orders. Orders postponing sentences will be reviewable, unless the postponement is merely for the purpose of obtaining a medical or psychiatric report or a report from a probation officer. This is important because, often, postponing a sentence is a prelude to not imposing a penalty.
Courts should have the power to order an accused or convicted person to avoid contact with the victim in her home or workplace. I realise it is not part of this legislation but it should be considered for future legislation.
Section 5 of the Bill also places an obligation on courts when determining the sentence to be imposed for a sexual offence, or an offence involving violence or the threat of violence, to take into account the long-term effect on the victim. This provision is of particular importance in cases where the accused pleads guilty. In those cases since the victim does not have to give evidence, the court may not be aware of how the offence has affected the victim and in particular if there has been any medium or long-term effect. I understand and welcome that the Bill will also apply in  cases in which a person is found not guilty to ensure that any such effects will always be borne in mind by a sentencing court.
I examined carefully section 5(3) which was inserted following acceptance of an amendment by Deputy Shatter on Report Stage in the Dáil. It is long winded but I am sure it could be improved. It contained a lot of good work. However, I know the Minister — like all Members — is keen, to see this Bill enacted although there is not much time to consider further details. I compliment her for the speed with which she has introduced it to this House.
The Bill gives the courts general power to require offenders to pay compensation for any resulting personal injury or loss. At present, compensation is payable by offenders only for criminal damage to property. In future, courts will be able to order compensation to be paid for any personal injury or loss resulting from any offence, including an offence that is taken into consideration when imposing sentence, a welcome provision. The means of the offender must necessarily be taken into account when assessing compensation. However, if those means improve substantially while the offender is still paying under the compensation order, the victim can have the compensation increased and the victim's civil law remedy against the offender will not be affected. I welcome that the system of compensation provided for in this Bill will be so versatile.
The Bill refers to appeals to the Court of Criminal Appeal and from there to the Supreme Court. However, it has been brought to my attention that it does not consider the question of an appeal made directly from the Central Criminal Court to the Supreme Court under Article 34 of the Constitution. The question of appeals direct from the Central Criminal Court is a general issue and it may not be appropriate to deal with it in this Bill. However, it is causing some concern and I ask the Minister to state if there are plans to deal with it in any future legislation. Essentially, it is a point of law in relation to appeals to the Court of  Criminal Appeal and from there to the Supreme Court.
Section 3(1) deals with appeals on a point of law from the Court of Criminal Appeal to the Supreme Court. A certificate must be granted by the court, the Director of Public Prosecutions or the Attorney General. Does this follow existing practice or is the inclusion of the Director of Public Prosecutions a new measure, restricted to appeals under this Bill? I would welcome the Minister's views on this.
I welcome the provision proposing the establishment of a study group setting out the areas in relation to the new Garda unit and what it can do with regard to rehabilitation. I am concerned about treatments for the victim and the offender. The Bill does not seem to cover that in depth and I am sure the Minister will return with proposals on this issue. As a guidance counsellor, with particular knowledge of the procedures for dealing with sexual and other physical abuses, it concerns me that we appear unable to deal adequately with problems. Many areas are not co-ordinated. I refer to the Department of Education, the Department of Health, child guidance clinics, psychological assessments and the Department of Justice. When one looks for a back-up service in relation to a problem when it first surfaces, it becomes clumsy to deal with. Many professionals are doing a very good job, but the coordination has not yet been implemented to enable support systems to be available when necessary. If the matter is not covered in the Bill, perhaps the Minister will address it at a later stage.
Ms Honan Ms Honan
Ms Honan: I welcome the Bill and compliment the Minister on bringing it forward. It is one in a series of measures which she will introduce during the term of this Government to update and reform our criminal law. I welcome the four main provisions of the Bill which are (1) to give the Director of Public Prosecutions the power to appeal unduly lenient sentences; (2) to increase the maximum penalty for incest; (3) to place an obligation on sentencing courts to take into account  any effect a sexual or violent crime has on the victim and (4) to authorise criminal courts to require offenders to pay compensation.
I am concerned that when cases such as the Kilkenny case which is regarded as exceptional and sensational, comes to public attention there is often an automatic demand from the public and politicians for new laws, procedures and regimes to put them right. However, after a couple of months everything seems to return to normal and we tend to forget all about it. That is why I welcome the Minister's earlier remarks that this Bill forms part of a number of measures which will be introduced to improve our criminal justice system.
I welcome the Minister's assurance that the Bill is orientated towards the victim. The most important question with which we have to deal is not the guilty party but the victim. Because of the adversarial nature of our criminal justice system the victim has tended to be placed at the bottom of the heap and, as the Minister said, virtually ignored. In our system the concerns, perceptions and effects on the victim have rarely been taken into account.
We must examine how we have approached acts of violence, particularly acts of violence against women. There is nothing new in violence against women. However, the focus of attention from the media, politicians and our Legislature is changing. I welcome this and the fact that the silence surrounding these problems has been broken. For that we owe a debt of gratitude to the courage of the women who have come forward in recent cases and brought these problems into the open. Attitudes are important and it is the attitudes that are embedded in the various systems that have stopped us dealing with many of these problems to date.
The mechanisms proposed in the Bill help the situation but other mechanisms also need to be implemented. The report of the Second Commission on the Status of Women recommended a number of measures in this area and I urge the Minister to take them into consideration. One  of the recommendations was that a monitoring mechanism could be set up in the Central Criminal Court to gather statistics on sentencing for rape. The commission believes that if those statistics disclose an unacceptable discrepancy, the Government should consider introducing a mandatory minimum sentence in rape cases. The commission also recommend that seminars should be organised on a regular basis for judges to keep them informed on the up-to-date nature of rape, sexual abuse and violence. This is a very important recommendation and I urge the Minister to implement it as it would be most helpful.
It is important that the Judiciary are informed of developments in this area. It is also important that there is training for members of the Judiciary, that younger members are appointed and, in particular, that more women are appointed. I am pleased that the previous Government, late in 1991, appointed the first woman judge to the Supreme Court. It was a welcome development. There is also one woman judge in the High Court but that is insufficient. I urge the Government to improve the ratio of women appointed to senior positions in the Judiciary.
Senator Henry made the point that there is often a perception that the Judiciary are far removed from the lives of the victims and people coming before them and that they live in a privileged society. It is important for the Judiciary to be aware of the effect of crime on victims.
The report of the Second Commission on the Status of Women also recommended training for teachers at primary and secondary level on the appropriate steps to take if a suspected incident of child sexual abuse comes to their attention. It also recommended the establishment of a module on child sexual abuse in GP training. Senators Henry and Enright said GPs should inform the director of community care in their health board area if they suspected incidents of child sexual abuse. The ICA recently produced a statistic that one third of Irish  women were victims of sexual abuse which is a horrific figure. I have spoken to teachers and GPs who said they must be coming across these cases but are not aware of them. Training and education is necessary in this area.
The commission also recommended the dissemination throughout the country of the Eastern Health Board's “Stay Safe” programme, a preventive education programme for children dealing with child sexcual abuse. This is important. The way to get to the root of this problem is to tell children to come forward and to assure them that when they do so they will be helped, that there are support systems in our society to assist them. Training and education are extremely important; the benefits of such training can be seen in the conduct of the garda involved in the Kilkenny case.
Another recommendation of the commission was that immediately prior to trial, as a matter of course the complainant, namely, the victim in a rape case, should be given a copy of her statement by the Garda. The Minister in her speech stated that administrative measures have been introduced to ensure that rape victims receive copies of their statements and I am pleased about that.
The commission also recommended that the Department of Justice should commission and publish a standard booklet explaining the circumstances attending the investigation and the prosecution of sexual offences, with particular emphasis on the role of the complainant as a witness. This booklet should be provided as a matter of routine to the complainant. This would make all victims more confident and restore their faith in the judicial system. Many women in these cases feel sorry at the end of the day that they brought the case to court. None of us wants that; we want the victims in these cases to be assured that the State and society will give them all the support they need.
In addition to these mechanisms in our educational system and our health services, we must also examine the funding of agencies such as the rape crisis centres. People who work in these centres feel  politicians are guilty of a certain measure of dishonesty. In this House we talk about enacting laws and increasing sentences but we give very little support to the agencies that deal with the victims of these crimes. I welcome the recent proposal by the Minister to increase the funding to rape crisis centres and I urge that such centres should be set up throughout the country. There is no rape crisis centre in my area, the Midland Health Board area; there are no facilities for women victims of these crimes.
Appropriate treatment programmes must also be put in place for offenders. Despite the comments of the previous Minister for Justice, sadly, there is a lack of such programmes; in fact, there is only one programme for adolescent offenders. We need to develop more programmes throughout the country.
The Minister said she did not envisage the appeals system being used very often and, generally speaking, this is the case. The trial judge is the person who has listened to the facts and is in the best position to impose a sentence. The Minister said the Director of Public Prosecutions has powers in relation to appeals, powers that have never been exercised. We cannot guarantee that just because this Bill is passed by the Oireachtas its powers will be used regularly. There is a tendency to assume that once a Bill is on the Statute Book everything will be all right. It will not necessarily be the case that the Director of Public Prosecutions will immediately appeal a sentence any time the public or politicians consider too lenient an approach has been taken. It may be years before the DPP ever seeks to exercise the powers invested in him by this legislation. The DPP is the appropriate person to bring the appeal because his independence is guaranteed under the 1974 legislation.
I agree with the Minister when she said it is not easy to get uniformity in sentencing. We need consistency in the decisions of the members of the Judiciary in so far as is possible. We must accept that the public perceives a wide discrepancy in the sentencing for rape and  other crimes against women, which is not readily explicable by the circumstances. I know the Minister has to be careful not to jeopardise in any way the independence of the Judiciary but perhaps we could find an appropriate mechanism to make known to the presidents of the various courts that we want consistency in sentencing. I welcome the Bill, I am glad it has been brought before the House and I will support it on Second Stage.
Mr. Roche Mr. Roche
Mr. Roche: This is worthwhile legislation and I compliment the Minister and her Department.
When introducing the Bill in the Dáil the Minister commented that the circumstances and the atmosphere were similar to those which prevailed in the aftermath of the Lavina Kerwick case. That case was the catalyst which led to the publication of the 1992 Bill. It is perhaps a sad reflection on both Houses of the Oireachtas that there was a second tragic case, the Kilkenny case, before we took steps to introduce legislation to deal with the issue. Nonetheless, the Bill is welcome. It is timely; in fact it is long overdue.
Although it is a relatively short Bill it is an important piece of reforming legis lation. Putting this Bill on the Statute Book will mean that some good will have emerged from those two horrific cases and from the countless other cases that get far less attention, or perhaps never come to public attention.
The Bill addresses the issue of unduly lenient sentences, a matter which has caused a great deal of outrage in recent times. I particularly welcome this element of the Bill, I am on the record in both Houses as being extremely critical of the sentencing policies adopted in cases by some judges in recent years. I cannot begin to understand the approach adopted in the Kilkenny case. No amount of special pleading by politicians who somehow regard the Judiciary, particularly their own friends, as being always above criticism will persuade me that anything approaching justice was done in that case.
In any crime against the person, particularly  the crime of rape, it is vital that the sentence imposed should reflect the gravity of the crime. There are many reasons for this, not least of which is that the sentence should represent the revulsion which society feels about this crime. In Western society people in recent times have become increasingly revolted by what seems to be an endless litany of cases of crime and incest. Reading newspapers and listening to media reports, sometimes it seems society is intent on debasing itself.
Appropriate sentencing is important also from the point of view of the victim of a crime. I say this not in any sense of vengeance but as an indication that society takes seriously the trauma suffered by the victim when the crime was perpetrated and also the trauma which the victim undoubtedly has to suffer when the trial is in progress. Frequently in crimes against the person the only witness is the victim. If victims have their confidence in the judicial system shaken by idiosyncratic sentencing or by excessive leniency towards the perpetrator, they may be dissuaded from participating in the task of bringing the criminal to justice and the whole of society suffers as a result. At last the central provision of this Bill will provide a mechanism where the Director of Public Prosecutions, representing both society and the victim, can appeal an unduly lenient sentence.
I have a query about the means whereby the provision will be put into operation. In the Dáil debate a number of Members pointed out that they wanted to ensure that approaches could not be made to the Director of Public Prosecutions, in fact, it would be criminal to try to make approaches. I am concerned that there may be a lacuna here, and the last speaker touched on this. We do not know whether putting these powers on the Statute Book will mean they will ever be put into operation except in rare cases. I am not suggesting that it would be appropriate that there be a review in each and every case, obviously that would not be so. The Minister also made this point. I would like to know how the central  provision in this Bill will be operated when it becomes law.
The second element in this Bill I particularly welcome is the obligation it places on sentencing courts to take into account any effect a sexual or violent crime has on the victim. This the Minister rightly recognised as being a victim-oriented provision. Other speakers including the last speaker made the point that it is extremely important that courts be seen to sympathise with the victim and to see the victim's side of the argument.
In recent times a great deal has been said about the inconsistency in sentencing in the courts. This inconsistency has two distinct elements: one is where excessively lenient sentences are handed down; the second is where the sentencing judge ignores the impact of the crime on the victim. In a recent case, for example, a judge explained that he was giving a custodial sentence to a rapist, that he was not giving the rapist the maximum sentence or as severe a sentence as he might otherwise do as the criminal led “a nomadic lifestyle”. The judge was conscious of the impact that a custodial sentence would have on a person who led such a lifestyle. I cannot understand that logic. I cannot understand how the victim must have felt when she heard those words. The media reports on that case do not record any reaction from the victim, but one suspects that this was a classic case of heaping insult upon serious and unspeakable injury.
As the Minister and other Senators have said sentencing is not an exact science. As outside observers, we would not be aware of all the circumstances and would be more aware of all the facts and extenuating circumstances than anybody depending on media reports. Nonetheless, I reflect on the last case and other cases and wonder how the victims felt. The least that society and more importantly that victims should expect is that sentencing should be consistent, reflecting society's abhorrence of the crime and it should act as a deterrent against future crime.
While I commend the Minister on these two elements of the legislation, I  would like to express concern about victim representation in the courts. The view that a victim should be allowed separate representation in the case of rape or incest is a valid one. The Minister in this Bill, and her predecessor in the 1992 Bill, went a long way towards making the judicial process in such cases more victim-oriented. However, given the trauma which any victim goes through in the cross-examination which is central to any crime where there is not an admission of guilt, it is vital that the victim be represented to protect her interests, both during the trial and, in particular, during the cross-examination, but also at the end of the trial when sentencing is being considered.
At present, the court will hear of any special or extenuating circumstances that may favour the accused. We are all familiar with worthy individuals who trot into court and, sometimes at the risk of public opprobrium, say there are good as well as bad aspects to the accused's character and ask for leniency. The plea for a more rigorous sentence by the other side is never entered. I share a view which has been expressed by Members of the Opposition in the Dáil that this issue requires further attention.
The third element in the Bill which I particularly welcome is the increase in the maximum penalty for incest from seven to 20 years. After the details of the Kilkenny case were made public I expressed my exasperation with and condemnation of the logic — if that is the appropriate word — which allowed incest to be treated, in some cases, as being a lesser evil than rape from the point of view of the sentences which could attach to the crimes. The Minister explained that life imprisonment remains a maximum penalty where the victim is under 15; she also explained that life imprisonment is the maximum penalty where the victim is over 15 and it is proven that the act takes place without consent. In those circumstances the life sentence can be imposed because the male can be charged with rape. I appreciate the point made by the Minister that the issue of consent can present a difficulty  in many cases, and accept it as an explanation for the apparent difference in the standard of sentencing.
I have mixed feelings about the provisions in the Bill which deal with compensation. I readily accept that there should be provision for compensation in cases where the extent of personal injuries can be measured. How can compensation be gauged? How do you put a monetary value on the trauma sufferer by a victim? I have had some first hand experience of this. A number of years ago I suffered a severe personal assault; I was mugged and spent time in an intensive care unit. I suffered more from trauma than from the injuries I sustained. In personal cases the trauma is the greater burden. I cannot see how trauma can be measured for compensation.
I read recently a case in another jurisdiction where a rapist was requested to pay for a holiday for the victim; the cost of the holiday was put at £500. While the intention of the court was undoubtedly a benign one, the very small monetary amount involved places a very low value on the trauma suffered by the victim, her feelings, and the trauma suffered by her family. The reality is that no monetary amount can compensate for the injury suffered. In that case the family said they would not avail of the holiday.
How will the compensation be paid if the criminal has no resources? Will a State-funded compensation scheme be established, or will compensation be received only by those who are victims of crimes perpetrated by the better off? If the latter is the case, a double injustice will be suffered.
The Minister touched on an issue not directly arising from the Bill, but one which has given rise to a great deal of public concern, that is, the protection of the victim from further harassment by the criminal. The concerns expressed on this issue in the Dáil seemed to refer to the period following a trial. However, we should also be concerned about harassment and intimidation not just of victims but also of witnesses in the lead up to a trial. The question of protection was raised by the victim in the Kilkenny  case when she graphically described in a television interview her concern that when her father was released he would return to plague her. I appreciate the concern of the victim in that case.
Intimidation is not just there where a custodial sentence is handed down. It is there all too frequently, it lies under the surface and may prevent many cases going to trial. I am not aware of the existence of statistics on the extent of the problem but from experience in my constituency I am aware of cases of intimidation of victims and potential witnesses that prevented cases going to trial. There is no point in a public representative exerting a victim or a witness to go to trial and to co-operate with the Garda Síochána if they fear they will suffer further assault. The anecdotal evidence available to me is corroborated by my contacts with other public representatives and with the Garda Síochána.
There is a need for some form of legal process to empower the courts to prohibit either an accused person, or anybody acting on the person's behalf, or a convicted person at the end of a trial from contacting a victim or a witness where that contact is intended to intimidate a victim or to persuade a witness not to attend. This is a growing issue which is causing major concern in another jurisdiction.
I listened, for example, to a report about the Greater Manchester Police and it was suggested that as many as 12 murder trials were abandoned in recent times because either the families or witnesses had been intimidated. There is intimidation in trials, in cases of rape and incest, and in cases involving crime against the individual. It is an issue that requires a response and urgent attention. The Minister made specific reference to this issue in her speech and I compliment her because it indicates that she is conscious of the matter and of what was said in the Dáil in relation to it.
I accept the Minister's point that she cannot address all issues in a single Bill, but the problem of intimidation is of  growing concern to me, to other public representatives and I am sure to the Minister. It is a growing plague within the community and I suggest it is a matter that we should perhaps return to in later legislation. The Minister has indicated that she has a series of reforms in mind and perhaps this issue should be referred to the Law Reform Commission.
There is another form of intimidation of witnesses and it applies particularly in cases involving rape or incest. It is a form of moral intimidation and of moral cowardice; it comes from within ourselves and within society. I do not wish to pre-judge the ongoing inquiry into the Kilkenny case but I find it incomprehensible that many people in caring professions were not aware of the difficulties. In the public sector, many people in the performance of their duty become aware of these cases. There is, however, a form of moral, perhaps societal, persuasion or intimidation which suggests that we should not get involved or intervene in cases involving a family. It is time that consideration was given to the creation of not just a statutory right but a statutory responsibility for people in public positions to notify an appropriate authority of cases which have come to their attention. The issues of intimidation and of creating a statutory responsiblity on people in caring professions to bring forward knowledge or suspicions they have of incest or rape go beyond this Bill.
I commend this Bill. It is good legislation and I commend the Minister and the Minister of State for bringing it forward. I hope when it is on the Statute Book it will not be, like so many other Statutes, consigned to oblivion. I hope the powers given here will be frequently used, and that there will be regular reviews. Perhaps the Minister could respond to this point, that a year or two years after this Bill goes on the Statute Book its operation could be reviewed in order to establish if fine tuning or updating is necessary.
Mr. Cotter Mr. Cotter
Mr. Cotter: I congratulate the Minister of State, Deputy O'Dea, on his  reappointment to the Department of Justice. It was a good decision even though he would probably have preferred the senior position. I had the pleasure of working with him in the Dáil on a number of Bills and I found him a very good person to have in charge of affairs. He was very open-minded, willing to have discussions and he brought some very good legislation through the Dáil which was honed and sharpened as it went through the process. I am glad the Minister is back in that position because I am sure he will continue the very good work he was involved in in the last Dáil. I look forward to meeting him in this House from time to time over the next few years.
I welcome this legislation but it is a pity we had to wait for a particularly gross and terrible crime involving child sexual abuse before it was decided that it was a matter of great urgency. We tend to react to situations rather than being circumspect and revising legislation according to instinct.
The Kilkenny case, as it has come to be known, created widespread revulsion throughout the community and, in common with many public representatives, I received letters from the public as a result. I received one letter from a group of fourth year students in a secondary school. They expressed their anger, they were terribly upset and wrote in a particularly vindictive manner about the judge who acted in that case. They obviously had been reading the papers because they gave a very graphic description of the case. I feel they would have over-reacted if they had had a part in sentencing and in the kind of legislation being dealt with here. However the community, including children, were outraged by this case and it has to be said that the perpetrator of that crime got off easily. It is a shame that proper legislation was not in place to deal with the case in an appropriate way. Most people feel that this man should have been treated in a very different way.
We can only imagine the terrible effects this abuse had on the child's personality and on her life; they are almost too awful to contemplate. In this case a  young girl's personality was destroyed, and the pity of it is that the person who brought that about was her protector and, at some stage, he was probably her idol. He was a figure of authority within the household and a man who at one stage was idolised by the child. He was a figure of support and safety and who should have been the rock on which the child began to build her life. He destroyed whatever chance that child had of living a satisfactory life and he did this in the interest of satisfying his own lust. He inflicted the most dreadful emotional and physical destruction on the young victim. It was the worst case that ever came before the courts. It shocked everyone and the reaction of the Department of Justice was swift.
This case raises a number of questions, and Senator Roche dealt with some of them. It is incredible that over a 16 year period, no one outside the family circle who came in contact with the child suspected the real nature of the victim's suffering, even though we are aware at this stage that the child, and later the young woman, came to the attention of a number of health board staff. She was hospitalised on a number of occasions because of physical injuries and would have been at school during the time that this vicious crime was being perpetrated against her. Normally when a child suffers sexual abuse they undergo personality changes and their behaviour tends to oscillate. Anybody with an insight into normal behaviour should have recognised that there was a problem.
I find it incredible in this most vicious case that nobody reported this abuse for 16 years. This leads one to question whether people decided not to report it because of the social attitudes of the times or they thought they would raise difficulties. I have questions about this case and the authenticity of some of the information. The system let this young girl down and I wonder if the people who should have known and reported the case have guilty consciences.
I produced a policy document on this matter some time ago and I believe that  the Minister of State should ask his colleagues in the Department of Health to review the Child Care Act, 1992, at once. While that Bill was going through the Dáil, I, and others, suggested that reporting these cases should be mandatory. This case strongly supports that suggestion. People who suspect these crimes are being committed should be required by law to report them and, having done so, should be given protection by the law. Protection would be necessary because crimes of this nature lead to problems within families. There would always be a danger that unless protection — anonymity for example — was given to the person who reports the case they could suffer physically and emotionally.
When the Bill was being debated in the Dáil I asked that this provision be included but the then Minister for Health felt it was unnecessary. Why? Maybe he felt he would disturb some professionals who work with children or that would be calling their integrity into question. Maybe he felt he would lose a few votes. I was surprised that suggestion was not taken on board, especially since the Law Reform Commission came down firmly in favour of that kind of legislative action in its report. I hope we have learned a lesson and that there will be a review of the Child Care Act, 1992, with a view to updating the law in the areas to which we are referring.
Thousands of adults and children have suffered sexual abuse. I would like to give the House an indication of the figures we are talking about. Reporting of this problem was almost unknown before 1984 and in 1984 only 88 cases were reported in Ireland; five years later, the number of reports increased to 1,241. That was a huge increase over a five year period and marked a change in thinking and a more open approach to sexual matters. It is generally accepted that the official figures are an under-estimation of the problem. The Childline service operated by the ISPCC gives an indication of the under-estimation. In 1990, according to the ISPCC report, there were 5,895 calls regarding child sexual  abuse on Childline. That does not tally with the official figures but it shows we are dealing with a time bomb, particularly when we consider the effects that abuse can have on the victims.
People may suffer serious personality disorders; this type of abuse disrupts the normal development of the child and prevents the formation of happy relationships in later life. Victims suffer low self-esteem, guilt and depression. They may become involved in substance abuse and that often leads to further crime. They also tend to get involved in prostitution and many have suicidal tendencies. One person who grows up in this kind of atmosphere can become a burden on society but if we multiply that figure by thousands, we could have an enormous problem.
The increase in various forms of crime — for example attacks on the elderly — might be related to substance abuse. People who need money to buy the next fix will attack an old person who may have money in the house. They will repeat this crime many times if they are successful. Many crimes might be explained in this way. We must look at this problem from a preventative and therapeutic point of view in an affort to undo the damage. To date we have failed in that area.
The Minister might consider making the law more victim-friendly as he has done in the past. Criminal legislation should allow for consultation between the injured party and the judge as to the penalty to be imposed on the accused after conviction. Where the victim wishes to be consulted on the sentence, the range of penalties should be made available and the victim should be allowed make suggestions to the court on the type of sentence which he or she considers appropriate. The judge should be obliged to take the victim's suggestion into account when determining the penalty. The final sentencing decision would remain with the judge but consultation with the victim would help the healing process and give a proper sense of importance to the victim in law. That  worthwhile suggestion should be examined.
Seanad Éireann 135 Criminal Justice Bill, 1993: Second Stage.