Seanad Éireann - Volume 195 - 10 June, 2009
Criminal Procedure Bill 2009: Second Stage.
Question proposed: “That the Bill be now read a Second Time.”
Deputy Dermot Ahern Deputy Dermot Ahern
Deputy Dermot Ahern: I am very pleased to initiate the Criminal Procedure Bill 2009 in the Upper House. I thank the Seanad for allowing us to take it here and look forward to the contributions on this important Bill. I thank my officials for bringing it forward quickly because I had given an undertaking when I launched the victims of crime initiative last year to bring it forward as soon as possible this year.
The Bill addresses two major topics, victim impact evidence and the circumstances in which acquittals may be reversed and new trials ordered. Both topics have particular relevance for the victims of crime. The opportunity to give victim impact evidence enables victims to tell about the hurt and pain caused. The reversal of undeserved acquittals will assure victims that their quest for justice can be satisfied. Few things can be more devastating for the victim than to see the offender escape justice.
Before dealing with the Bill, I acknowledge the contribution of the balance in the criminal law review group and in particular its chairman, Dr. Gerard Hogan. The group’s analysis and recommendations inform many of the Bill’s provisions. When I was appointed Minister for Justice, Equality and Law Reform last year one of the first documents I read more or less from cover to cover was the report written by Dr. Hogan and his committee. It fed into my thought process in bringing forward this Bill.
The Bill has 32 sections, plus a Schedule of relevant offences. Part 1 deals with standard matters such as commencement and expenses. Part 2 reforms the law on victim impact evidence. The law requires victim impact evidence to be considered at the sentencing stage in a trial. Part 2 replaces section 5 of the Criminal Justice Act 1993. The basic structure, however, is being maintained. It has two elements, one of which is mandatory — the court is required to take account of the impact on the victim when determining the appropriate sentence, with the exception of convictions for murder, where the sentence is, of course, a mandatory life sentence. For the purposes of the first or mandatory element, the judge may receive reports, often from a medical or other specialist. I am not altering those arrangements but I propose that in cases where, as a result of the offence, the victim has died or is ill or incapacitated, the court is obliged, for the first time, to take account of the effects of the offence on the family, in addition to the effect on the direct victim. These reports apply in every case, even where the victim chooses not to make an oral statement. They ensure that the impact on the victim is always considered.
The second element enables the victim to give an oral account of the impact of the offence. Until now, the possibility of making an oral statement was available only to the direct victim of the offence. Clearly, that presents problems in homicide cases. It is also a problem where the victim is unfit, as a result of the offence, and cannot avail of the opportunity himself or herself. The time has come when we must recognise that the trauma of the direct victim is often shared by family and friends and they too must be given an opportunity to have an input. We must also be mindful that young children or persons with a mental disorder may have difficulty in making a statement in open court. Equally, victims of, for example, sexual offences will find it hard to be in the presence of their attacker when speaking about the damage done. My proposals address all these situations.
In homicide cases, a family member may speak about the effect on the family. In cases where the victim is, as a result of the offence, ill or incapacitated, a family member may speak about the impact on the victim and on the family. A family member may speak on behalf of a child under 14 years or a person with a mental disorder. A child or a person with a mental disorder or any other person, with the permission of the court, may deliver the statement via a television link. I am providing for a wide definition of “family” to cover the extended family and the variety of relationships that arise. I feel strongly that victims must not feel pressurised into making statements; they have already suffered enough. I am also keen to ensure that the absence of a statement must not be seen to suggest that they suffered less harm than others. I am therefore providing that no inference is to be drawn that would suggest that the absence of an oral statement indicates there was little or no impact on the victim. I am not proposing any changes in the offences that give rise to the need for victim impact evidence. They already include sexual offences and offences involving violence or the threat of violence.
I want to mention the provision that will enable the court to react when things are said that are not appropriate. I appreciate that victims and their families might feel frustrated by the procedures and formalities of the trial process. The legal process, however, is designed to be fair to all sides. For example, we must assume that evidence which is not presented at the trial was felt to be either not relevant or was not reliable. It would be unacceptable if the information became available by means of an impact statement. For this reason, the Bill enables the court to prohibit the publication of material it considers inappropriate. It will be an offence to breach a court order. The Bill develops victim impact evidence in a very positive and progressive way. It recognises that crime affects not only the people most directly concerned, but also those with whom they share their lives. I am in particular securing the entitlement of families to be heard in homicide cases; they will no longer have to depend on the judge’s discretion.
Moving to the second area covered by the Bill, Parts 3 and 4 outline the circumstances in which acquittals may be overturned and new trials ordered. There are three circumstances. Part 3 deals with two of them, where new and compelling evidence arises and where the trial was tainted. These two circumstances represent a departure from the rule against double jeopardy. The third circumstance, which arises in Part 4 is an extension of the current powers available to the prosecution to bring appeals where the acquittal arises from an erroneous ruling on a point of law by the trial judge. The double jeopardy rule means an acquitted person may not be pursued again in respect of the same offence. An acquittal is regarded as a final decision which, until now, the State could not seek to reopen. As against that, a convicted person already has full rights of appeal against both conviction and sentence. Despite this imbalance, I accept that we must be cautious about changes to the operation of the double jeopardy rule. There is a public interest in respecting the finality of proceedings. Nevertheless, we must recognise that some acquittals cannot be truly said to be deserved. Obvious examples arise where someone commits perjury or where new evidence that is compelling becomes available after the acquittal. Both situations would suggest the acquittal is not a true or just outcome.
Sections 7 to 10, inclusive, set out the procedures to apply before a retrial can take place. The process is a rigorous one and ultimately, it is for a court to decide whether a new trial should take place. If it is a question of new evidence, it must be compelling, it cannot have been available at the time of the first trial and it must be clear that even with the exercise of due diligence by the Garda and the prosecution, it could not have been available at that trial. Critically, it must be of a standard that implicates the person with a high degree of probability in the commission of the relevant offence. That is the highest standard possible, short of saying the new evidence must amount to proof that is beyond reasonable doubt, in other words, that it meets the criminal standard. That would amount to a predetermination of the case. It is for the jury at the new trial to make the determination about the guilt or innocence of the accused.
“Relevant offences” are those that for the most part carry a mandatory or discretionary life sentence. The offences under the International Criminal Court Act 2006 which carry a maximum of 30 years in some circumstances are the exception. The offences in question are listed in the Schedule. These are the only offences in respect of which a retrial may be ordered based on new evidence becoming available. Limiting the offences to these most serious offences underlines the careful approach we have adopted to this area of reform.
In the case of tainted acquittals, a retrial may be ordered in respect of any offence tried on indictment where the first trial was tainted by an offence against the administration of justice. That covers bribery, intimidation or any other activity designed to pervert the course of justice.  It also includes perjury. There must be reasonable grounds to believe that the offence affected the outcome of the trial. The Director of Public Prosecutions must be satisfied that the acquittal was not merited. In the new evidence scenario, he will generally have available to him a Garda report on its investigation of the new evidence.
Sections 15 to 18, inclusive, set out the powers available to the Garda for the conduct of the investigation. The Garda may not pursue the investigation against an acquitted person except where it has judicial authorisation to use the powers in this Bill. In the case of tainted acquittals, there must be a conviction for the offence against the administration of justice. Once satisfied that the acquittal is without merit, the Director of Public Prosecutions may apply to the Court of Criminal Appeal for an order for a retrial. The acquitted person is put on notice of the application and may attend and participate in the hearing. Legal aid will be available. The court may quash the acquittal and order a new trial if it is satisfied that the Director of Public Prosecutions has complied with the requirements as to the standard of the new evidence or, where appropriate, that an offence against the administration of justice had occurred and that it would be in the interests of justice to do so.
Section 12 outlines important safeguards. The court may order restrictions on attendance at the hearing as well as restrictions on reporting of details of the case. The restrictions can be maintained until the trial has concluded. They are designed to avoid prejudicing the new trial, especially by avoiding publicity that might influence any potential jurors. Section 13 specifies details of the offences committed by publishers who breach an order.
The Director of Public Prosecutions may bring an application once only; there can be no question of repeated applications. If an acquitted person fails to attend and the court decides to proceed with the application, it may, in the event of it ordering a retrial, issue a warrant for the arrest of the person.
Section 14 provides that the decision of the court is subject to appeal to the Supreme Court on a point of law. The retrial will entail a full rehearing of the case. If convicted, the person is liable to the prescribed penalty for the offence in question. The usual rules on access to legal aid will apply.
Part 4 of the Bill provides for “with prejudice” appeals. These appeals are made by the Director of Public Prosecutions or, in some cases, the Attorney General, to the Supreme Court against a ruling by the trial judge on a point of law. Typically, they may relate to the admissibility of evidence or the legality of searches. Until now, such appeals were available only on a “without prejudice” basis; in other words, the outcome of the appeal did not alter the position of the acquitted person. It is now proposed that, in addition to this option, there should also be a “with prejudice” option. In other words, the acquitted person may ultimately be convicted. It entails the possibility of asking the Supreme Court to not only to clarify the law but to order a new trial. The procedures are similar to those I outlined earlier in terms of double jeopardy cases. They are set out in section 23. The same restrictions on reporting may be imposed as mentioned earlier.
I want to deal with the scope of application of the new measures and the question of retrospective effect. The possibility of quashing an acquittal arises in new evidence cases and in the case of the tainted acquittals where the person was charged with the offence on or after the commencement of the new legislation and was subsequently acquitted. Members will note that the offence may have been committed prior to the commencement date.
In cases where the acquittal arises from an incorrect direction on a point of law, the possibility of bringing a “with prejudice” appeal will arise where the acquittal takes place on or after the commencement day. In all three scenarios the acquittal must occur after the commencement date. This is a significant point and I will elaborate on it after I look at the question of retrospective effect.
There is a general presumption, especially in criminal law, against retrospection. This is reflected in Article 15 of the Constitution. Article 7 of the European Convention on Human Rights takes a similar approach. However, the position as covered by the Constitution and the ECHR relates primarily to substantive criminal law; they make it clear that an act that was not an offence when committed may not later be regarded as an offence.
The Bill, on the other hand, is concerned with criminal procedure. I have been advised that if the Bill was to have full retrospective effect, there is a strong risk that the courts would regard it as interference by the Oireachtas in the administration of justice. An interference would arise if the Oireachtas allowed cases that were considered closed by the courts to be reopened. That would also represent a transgression of the doctrine on the separation of powers. I am advised that the Bill cannot therefore have retrospective effect. I am aware that a different view has been taken in the UK but I must operate within the constitutional framework in this State. The possibility of retrying a case under this Bill, based on new evidence, does not apply to cases where special verdicts were recorded under the Criminal Law (Insanity) Act 2006. Those special verdicts acknowledge that the person committed the act but lacked the necessary mental capacity at the time.
Sections 30 to 32, inclusive, address other matters relating to appeals. Sections 30 and 31 remove the requirements that a convicted person must obtain a certificate from the trial court or the leave of the Court of Criminal Appeal before being allowed to appeal to the latter court.
Section 32 amends section 29 of the Courts of Justice Act 1924 by clarifying that a person who appealed to the Court of Criminal Appeal on a number of grounds and was granted a retrial on some of the grounds may appeal to the Supreme Court for a decision on those matters included in the original appeal to the Court of Criminal Appeal but which were not addressed by that court when granting the retrial, provided they are relevant to the defence at the new trial.
I would like to mention some issues I am examining and may wish to bring forward as Committee Stage amendments. These include alterations to the current law on character evidence, prior notification on the use of expert witnesses and an amendment on the treatment of property being retained as evidence. I am also considering a further set of issues that include the use of restraint orders in relation to cases coming within the terms of this Bill, adding further offences to the Schedule to the Bill and a proposal to extend the time period for the preparation of the book of evidence.
The Bill I have presented will bring about much needed and overdue reform. It puts victims of crime on a new footing in so far as the legal process is concerned. They are being given much fuller and more generous opportunities to participate in the legal process. In addition, the gap in our law that allowed guilty persons to escape the consequences of their crimes is being addressed. I believe the integrity of the criminal justice system will benefit from the changes I am proposing.
The House will have noted that while breaking new ground with this Bill, I have been very careful to provide many safeguards. As a result, I am pleased to commend the Bill to this House. It is balanced and carefully constructed. It is grounded in a deep respect for our legal traditions and values but it moves the law forward in a measured way.
Senator Eugene Regan Senator Eugene Regan
Senator Eugene Regan: I welcome the Minister. I also welcome the fact this Bill is initiated here and is being introduced in this House.
In June 2008, Fine Gael published its Victims Rights Bill to give the victims of crime comprehensive statutory rights for the first time under Irish law. The Minister at that time attacked Deputies Shatter and Charles Flanagan, the co-authors of that Bill, and surreptitiously announced his own Bill on victims’ rights, which had not been drafted then and no heads of such a Bill were available at that stage. One year later, this Bill, albeit different from the more comprehensive Bill put forward by Fine Gael which the Minister for his own reasons did not adopt, which primarily deals with victims’ rights is being introduced. We welcome the general tenor of it and the initiative to put the rights of victims more to the forefront in criminal proceedings.
The other aspect of the Bill concerning double jeopardy, which deals with potentially such issues as intimidation, errors in trial and new evidence emerging, which could not have been available at the time, is also very important to ensure that we have the necessary armoury in place to tackle crime. However, the legislation raises serious issues in regard to that principle which has a constitutional base and a basis in common law.
The issue of victims’ rights and reform of the law that is being introduced here in regard to victim impact evidence, in particular to extend to family members of victims of crime the entitlement to make an oral statement, or a victim impact statement, at a sentencing hearing is to be welcomed.
The issue of double jeopardy is an important one to which I will refer later. In addition, the provision for the Director of Public Prosecutions to have a right of appeal to the Supreme Court on a with prejudice basis against an acquittal, where the acquittal arises from an erroneous ruling by the trial judge on a point of law, is something that can be supported. The right of appeal by the DPP against a decision by the Court of Criminal Appeal not to order a retrial following the quashing of a conviction is another important element. There are various miscellaneous amendments to which the Minister referred. It is important to note that many of the elements of the Bill were considered by the criminal law review group and many of the recommendations of that group are reflected in the Bill.
In general, Fine Gael supports this Bill, which reflects to some extent our initiative in putting forward a Bill on victims’ rights last year. It goes some way towards giving greater recognition to the victims of crime rather than the perpetrators and, for the first time in Irish law, it gives a voice to victims of crime to allow them the recognition they deserve. As well as these general comments I reserve the position of tabling amendments on Committee Stage as there are quite a number of important and fundamental procedural changes in the substantive criminal law which will require further scrutiny.
The Minister has in this Bill put forward a series of changes to the double jeopardy law which put on a statutory footing the possibility of retrying criminal cases on the basis of new evidence. Given the constitutional basis of the double jeopardy rule and the provisions of the European Convention on Human Rights and the Charter of Fundamental Rights, which form part of the Lisbon treaty, it is important that we get this right. There are serious issues here for our system of justice and if we overstep the mark in this area it could prove embarrassing. The double jeopardy rule has a constitutional basis as well as a common law basis. However, it is desirable that a person who has escaped justice due to the impossibility of obtaining evidence at a particular time as a result of witness intimidation is held to account. Thus, there is an inherent logic in changing the rigid adherence to this rule and, in that regard, one would support the initiative to place on a statutory basis restrictions on the rigid application of that rule. However, it is important that we comply with the fundamental principles and jurisprudence to which we have signed up in the European Convention on Human Rights. The jurisprudence in this regard has been developed and I presume the Minister has taken the best legal advice from the Attorney General on this matter. We will need to return to this on Committee Stage.
Section 19 of the Bill is concerned with the admissibility of evidence. Although in many ways I welcome this, it appears we are providing greater flexibility with regard to admissibility and that evidence obtained with some technical error in procedure by the Garda Síochána will not be deemed automatically precluded as evidence in a trial. I welcome this change, which is similar to those contained in a Bill I introduced to this House but which was flatly rejected by the Minister. However, this idea is reflected in section 19 of the Bill and in another Bill which the Minister recently initiated. I am pleased that some of the ideas coming from this side of the House, while not acknowledged, are being adopted by the Minister.
I welcome the fact that the Minister has introduced the Bill in this House. It will receive close scrutiny on Committee Stage and we will bring forward some amendments in terms of the technical detail. The Bill is a very technical one, but its general purpose and objective will be supported on this side of the House.
Senator Denis O’Donovan Senator Denis O’Donovan
Senator Denis O’Donovan: I welcome the Minister to the House and compliment him on his initiative in introducing this bold and brave Bill. I acknowledge that the Bill is being initiated in this House to give the Upper House greater status and recognition, which it merits. As a spokesperson on justice in the House, I am pleased the Bill is initiated here. I would like to see more legislation initiated in the Seanad and teased out by Senators before it goes to the Lower House. I am not sure whether it will be recognised that this landmark legislation is ground-breaking. The Minister is making a brave and bold statement, particularly as one of the pillars of the criminal justice system, which has been in place for 250 years — namely, the rule on double jeopardy — is being amended, although not abolished. If one had suggested this to some criminal lawyers two decades ago they would have said it should not be touched. This is a brave and ground-breaking step.
I acknowledge the efforts by my colleague Senator Regan in the initiatives he has taken. He referred to the Bill tabled in the other House by Deputies Shatter and Flanagan. I considered that legislation and this Bill, and we must put on record that while there are similarities, the Bill being presented by the Minister today goes much further, which is to be welcomed.
When we consider the systems in Australia, New Zealand and the UK, we can see that we are catching up with initiatives they have taken. The legislation passed in New Zealand has broad similarities to the Bill presented by Deputies Shatter and Flanagan. It is important that we consider how things are done in other jurisdictions. When I was a law student we looked at the British Companies Act 1947 and compared it to the legislation introduced here in 1963. Our legislation was bolder and braver because we had learned in the intervening years of the mistakes in the British legislation and made changes accordingly.
It is a reflection on society that the Minister must introduce such strong measures to prevent gangland crime. This Bill sends the message to drug barons that they will no longer be able to hide behind the right to silence. It will send a shiver down the spines of those who think they can hide behind antiquated, outdated procedures. The gardaí and the courts need to be able to take stronger measures.
The Bill addresses victim impact statements, the quashing of acquittals and the sending of cases for retrial in limited circumstances. Along with the Minister, I acknowledge the great work of Professor Gerard Hogan in the report of the Criminal Law Review Group. I had firsthand experience of working with Professor Hogan on a number of committees and I have a great appreciation of his indepth knowledge of the criminal law and constitutional matters. He is the leading expert on such matters in the country.
Victim impact statements hit the headlines with the unfortunate case of a young person who died in east Cork. Two families were torn apart and this was the first time where the idea of such statements became news. I am glad there is now a statutory footing for such statements. Victim impact statements will be made only at the sentencing stage, after conviction when the jury has returned a verdict, and that is only right and proper because it would create problems if they were allowed in advance. The Bill allows the judge to take account of the impact on the victim when determining the level of sentence.
I also welcome the Minister allowing a broad definition of who can give a victim impact statement. It could be a child, spouse, partner or guardian ad litem of a person. It also covers vulnerable witnesses such as children, people with mental disorders or victims of rape or sexual assault, and allows for the statement to be made by television link. The Bill extends the possibility of making a statement to family members and facilitates vulnerable people. It meets the demands of victims’ groups for a broader arrangement.
The most important element of the Bill is the altering of the concept of double jeopardy. Normally an acquittal marks the end of a criminal case but it is now proposed to change that in a limited way. An acquitted person is innocent in the eyes of the law. This change has been made successfully in Britain, New Zealand and in many states in Australia. An acquittal may be quashed in three circumstances; the Minister has been careful to ensure it is not a free for all because otherwise there would be all sorts of constitutional challenges.
The first circumstance is where new and compelling evidence emerges. This will apply to offences carrying a life sentence that are listed in the Schedule to the Bill. The second circumstance is where the acquittal resulted from a tainted trial where there was intimidation, perjury, bribery of witnesses or jurors. This can apply in any case tried on indictment. It is an important matter to mention because there have been incidents where jurors and witnesses were intimidated in gangland cases. This Bill will act as a shield to protect such people. The intimidation of jurors is serious. It has happened before so greater protection must be given to them. If there is an acquittal because a juror is interfered with, the verdict is tainted. There have been cases where, following an acquittal, a brave man has admitted the crime outside the courthouse. Until now we had no way to reverse that decision, there was no way back. This case allows an opportunity where a guilty person cannot use the double jeopardy rule.
There will also be a change to allow the Director of Public Prosecutions to bring a with prejudice appeal against an acquittal. An appeal of this type will arise from an error on a point of law by the trial judge where that error resulted in an acquittal. It allows for the possibility of not only quashing the acquittal but ordering a retrial. This appeal option is available for any case tried on indictment. Such an appeal on a with prejudice basis is a new phenomenon because an appeal on a point of law could lead to a lengthy custodial sentence. It is a new departure that I welcome.
In these landmark changes to the legal justice system, the Minister has put in place several safeguards. A retrial must be ordered by a higher court — the Court of Criminal Appeal or, in a with prejudice case, the Supreme Court. The court will make an order if it is satisfied the application brought to it by the DPP meets an exacting standard. Special powers are also being given to the gardaí.
I commend the Minister for this ground-breaking legislation. It has gone further than the Fine Gael Bill that was introduced in the other House and it brings us in the right direction. I hope it is passed swiftly. I welcome amendments from Members on all sides so the legislation can be fully teased out and I look forward to an indepth analysis on Committee Stage.
Senator Rónán Mullen Senator Rónán Mullen
Senator Rónán Mullen: I wish to share time with Senator Bacik.
Senator Maurice Cummins Senator Maurice Cummins
Senator Maurice Cummins: Is that agreed? Agreed.
Senator Rónán Mullen Senator Rónán Mullen
Senator Rónán Mullen: I welcome the Minister and aspects of this Bill. Looking through it, I welcome the changes in regard to victim impact statements and that no inference will be drawn where a person, a victim or the family of a victim choose not to make such a statement. That is appropriate. As mentioned by Senator O’Donovan, I welcome the enabling of the courts to prohibit publication of material in certain circumstances in regard to victim impact statements and cases where the Director of Public Prosecutions succeeds in getting a retrial.
In the context of the case in the south to which Senator O’Donovan alluded, is enough being done to accompany victims and their families in the terrible traumatic cases of the kind which occurred? Is enough being done to explain the complex procedures and proceedings involved in the criminal law so that victims and their families understand where precisely they fit into the system? The mere fact that they are witnesses primarily can be a source of tremendous trauma and can lead to them feeling very disempowered in the whole process where they seek justice for the wrong done to a loved one. That is an issue about which we should continue to think.
In regard to the opening up of circumstances where there can be a retrial, this has been described as the end of, or certainly a significant attack on, the old rule in respect of double jeopardy or, as it is known in this jurisdiction, autrefois acquit. It is appropriate we ask from where this is coming. I am aware of changes in the law in England, certainly in the wake of the Stephen Lawrence inquiry. Particular circumstances arose in that case which led to change in England. Given that in the UK retrials hardly ever come to pass, how often does new and compelling evidence emerge? Does this proposed change in the law stem more from a sense that we need to be seen to be tough on crime than from particular circumstances which arise and necessitate it?
A number of issues need to be considered very carefully in this regard. I refer to the guarantees in Article 38 of the Constitution that a person has a right to a trial in due course of law. What exactly flows from those rights under Article 38? Certainly due expedition has been held to be involved. As has been said, there is a public interest in the conclusive determination of criminal proceedings. Given that a person has a right to a trial with due expedition, is there a need to look at some kind of Statute of Limitations arrangement in regard to what is proposed here where the Director of Public Prosecutions can apply to the Court of Criminal Appeal for a retrial in certain circumstances? What would be the courts’ view if this was ever tested, that is, whether this abandonment, partial abandonment, call it what you will, of the rule against double jeopardy is fully in keeping with the spirit of Article 38 and the person’s right to a trial in due course of law and what would flow from such a challenge were it to be made?
I refer to section 7 and the threshold which allows the possibility of a retrial where new and compelling evidence emerges. What is new and compelling evidence? Is that too loose a term? Does it open up the possibilities of judges agreeing with a nod and a wink that there is new and compelling evidence? Could this nurture inadequate approaches to inquiry on the part of the Garda Síochána? A trial could take place resulting in an acquittal and new and compelling evidence could come to light at that stage perhaps with the Garda Síochána having pursued a line of inquiry which it should have pursued in respect of the first trial. Does the threshold need to be raised to provide for the possibility of a retrial where new and compelling evidence emerges which could not possibly have been obtained with duly diligent behaviour on the part of the Garda Síochána? Would that be a safer threshold to establish in that particular instance?
There will be time to turn to these matters on Committee Stage. I do not want to sound like I am against this Bill in principle. I recognise the circumstances which could give rise to a justification for a second trial but, nonetheless, we must proceed very carefully. We need to look very carefully at the thresholds we establish.
Senator Ivana Bacik Senator Ivana Bacik
Senator Ivana Bacik: I thank Senator Mullen for sharing time. I welcome the Minister and the opportunity to speak on the issue of criminal procedure. Issues about reform of the criminal justice system have been very pressing with recent murders really bringing it to the fore, the intimidation of persons who have been witnesses and so on.
I welcome some of the measures in the Bill, in particular Part 2 which deals with the impact of crimes on the victim. It is very important to see necessary changes being made to the victim impact statement provisions of the 1993 Act, in which the flaws had been very obvious, namely, that there was no provision for the families of homicide victims to give statements and there was a lack of clarity about how victim impact statements would be taken by the courts.
I am glad to see greater provision for children, in particular, to give evidence through video link and, under section 6, through an intermediary, which is very welcome. As a practitioner in this area — I declare my interest in it — I am very much aware of cases where there have been logistical problems with children giving evidence by video link, for example, in sex offence cases. That is a logistics matter for the Courts Service which normally deals very well with this. It is very important the person in the room with the child is trained. There should always be a trained person in the room with the child when giving evidence by video link because the video link experience can also be very traumatic for the child. We need to be aware of that when we expand the right to give evidence through video link. We need to tighten up the practice and ensure persons are trained if they are to be alone in a room with a child who is giving evidence in such a difficult circumstance.
I would like to see more support for victims. Various changes have been made in regard to sex offences to have some limited separate legal representation. I would like to see an expansion of that provision in this Bill.
I refer to Part 3 which deals with the new exceptions proposed to the rule against double jeopardy and the provisions that the Director of Public Prosecutions can now apply for a retrial order. Especially with developments in DNA, it should be possible, although only in very rare cases, for retrials to be ordered even where there has been an acquittal. However, it is essential that we limit cases where such retrials may be ordered.
I refer to the balance in criminal law review group report. As the Minister said, it is that group’s recommendations which inform many of the Bill’s provisions. The group said that any power to provide for an appeal in respect of an acquittal following new evidence or allegations of trial tampering would be rarely used. That is the experience elsewhere and it should only be used rarely. The group recommended that there should be an exacting threshold where the Director of Public Prosecutions seeks a retrial order. I am not sure the threshold in section 8 is exacting enough. The two examples given by the expert group — DNA evidence or a confession to the offence — perhaps seem to be the only examples of new and compelling evidence where a retrial order might be possible.
The Director of Public Prosecution’s application to the court can be in the absence of an acquitted person, about which I am slightly concerned. It must be made on notice but it can be done in a person’s absence. There is no time limit within which the Director of Public Prosecutions may make such an application. The court to which the application is to be made is the Court of Criminal Appeal.
That was not envisaged by the review group, which made various criticisms of the manner in which the jurisdiction of the Court of Criminal Appeal has developed. The group specifically recommended that “greater rationality” be brought to bear on the “piecemeal development” of the jurisdiction of that court. The review group was of the view that it would be appropriate for appeals against acquittals to be brought to the Supreme Court. In regard to double jeopardy, the group recommended that the prosecution right could be exercised if the Supreme Court so decides. In other words, it recommends that this be a matter for the Supreme Court rather than the Court of Criminal Appeal.
Given the lack of consistency encountered by practitioners in judgments of the Court of Criminal Appeal, this is a worthwhile recommendation. A difficulty arises from this proposal in that there would then be a problem as to where an appeal could be taken. However, there is currently a problem with the appeal mechanism provided for in section 14 of the Bill, which allows for an appeal to the Supreme Court from a decision or determination of the Court of Criminal Appeal in a retrial application in that there is no right of appeal for the acquitted person unless either the court or the Director of Public Prosecutions agrees it. There may be a problem constitutionally in restricting this right. This issue of appeal and the question of the court to which the application should be made are issues that should be revisited.
I welcome the introduction of other restrictions. For example, summary acquittals are not included. The range of offences is limited to more serious ones and only one application may be made. However, there may not be sufficient safeguards in the legislation. Under Part 4, which deals with new provisions on without prejudice prosecution appeals, there is significant potential for abuse. This is also the case in respect of Part 3, sections 15 to 18, inclusive, whereby the District Court is to be empowered to give approval for powers relating to persons acquitted. I am concerned that this provision may give rise to serious issues. The provisions in regard to without prejudice prosecution appeals are broader than was envisaged by the expert group. The latter referred to the need to enure the absolute impregnability of jury decisions to acquit and that such decisions should only be made on very narrow points. In other words, the reopening of acquittals or appeal against acquittals should only be carried in restricted circumstances.
I am concerned that the provisions in the Bill in this regard are not sufficiently restrictive. For example, under section 16, the District Court may approve the arrest and detention of an acquitted person in respect of whom no retrial order has yet been made. In other words, the Garda can seek right of rearrest before the District Court before an acquittal has been set aside and a retrial ordered. I am not convinced this is constitutional. I accept there is a practical issue in that there may be a flight risk if the person concerned is not arrested before the retrial application is made. However, I am not sure whether the type of broad power of rearrest put forward in the legislation is in accordance with Article 38.1 of the Constitution.
I have a query regarding the power to grant search warrants under section 18. I am conscious there are strict laws prohibiting the use of rearrest powers by the Garda. I acted in a case where one of these laws was examined and found wanting. We must be careful about the potential for abuse where gardaí are rearresting persons who have been acquitted and whose acquittal has not been set aside.
In Britain, the law was changed in 2003 to introduce exceptions to the rule against double jeopardy. However, prior to the enactment of the legislation, a detailed Law Commission report examined all the issues. The review group report referred to some of the interesting cases that have arisen in Britain. We must examine these issues more closely to ensure we tread cautiously in opening up the potential to mount appeals against acquittals for prosecution. In view of recent heinous crimes, there is clearly a need to look at issues such as tainted acquittals where persons convicted of offences against the administration of justice may have been acquitted wrongly, thus leading to miscarriages of justice. This point is dealt with in section 9. I clearly see the merit of changing the rule on double jeopardy in those cases. In other cases, however, particularly in respect of with prejudice appeals, we must tread more cautiously. I thank the Acting Chairman for her indulgence.
Senator Fiona O’Malley Senator Fiona O’Malley
Senator Fiona O’Malley: Although Senator Bacik will not appreciate it, I am glad she was not elected to the Dáil last weekend because this House would be poorer in her absence.
Senator Dan Boyle Senator Dan Boyle
Senator Dan Boyle: This Bill is a sincere attempt to manage the fine line that exists in terms of maintaining and improving public confidence in our judicial system while protecting the entitlement of individual citizens to have their rights properly assessed in any court case. The Minister was assisted in producing this Bill by the recommendations of the balance in criminal law review group. Other speakers referred to welcome provisions in regard to victim impact statements, namely, that no inference may be taken from a decision not to make such a statement, and the provision whereby children will be allowed to make such statements via video link. All Members will welcome these measures.
Where controversy arises it is on a point of academic discussion, that is, the exceptions to the rule against double jeopardy. Other speakers outlined those concerns and how we must get the balance right in enacting this legislation. Senator Mullen asked for a tight definition of “new and compelling evidence”. Senator Bacik observed that where similar changes have been introduced in other jurisdictions, they have been used rarely. She argued that the legislation should reflect the imperative that such provisions be used only in exceptional circumstances. I agree that when it comes to trying persons for a crime of which they have previously been acquitted on the basis of new and compelling evidence, there must be some provision to ensure such powers are not only used rarely but also on only one occasion. There should be some control such that new and compelling evidence is not constantly made available on a regular basis. Such a scenario introduces a threat into our judicial system that we do not need and which would compromise the rights of individual citizens. Will the Minister clarify whether that type of definition can be introduced on Committee Stage or Report Stage to make the Bill stronger?
Process is clearly important in the context of our judicial system. However, where public confidence in that system has faltered, particularly in the case of serious crimes in recent years, it has been because there is a perception of an overemphasis on process rather than a focus on whether truth is established and guilt properly ascertained and acted upon. It is important that we ensure public confidence by introducing the necessary improvements in the system. The Minister, in introducing this Bill, is trying to achieve such an effect. We must move away from the perception, which may not solely be a perception, that in every circumstance, process will win out over truth in our judicial system. There is already, because of the distinction between criminal and civil law and the different standards of proof required, the possibility that a person may be declared not guilty under the criminal law but guilty of a similar offence under the civil law. This was the case in the verdict delivered in the High Court in Belfast this week in regard to the Omagh bombings in 1998. While the standard of proof and the ability to establish a conviction vary as between the civil and criminal codes, the fact that this distinction exists should make it easier for us to include these new qualifications in the law of double jeopardy.
I welcome the Bill and I ask the House to use the time afforded for deliberation on it on Second Stage, Committee Stage and Report Stage to bring about whatever possible further improvements might be made. We must enact legislation required to bring about the type of confidence for which many people are calling in respect of serious crime.
Acting Chairman Acting Chairman
Acting Chairman: I take this opportunity to pay Senator Boyle the same compliment I paid to Senator Bacik.
Senator Dominic Hannigan Senator Dominic Hannigan
Senator Dominic Hannigan: Before he leaves, I wish to extend to Senator Boyle my compliments on his recent performance.
I welcome the Minister and also the debate on the Bill. I wish to focus largely on the issue of victim impact statements but I will also comment on the matter of double jeopardy.
Alleviating some small degree of the pain and suffering endured by the victims of crime is a problem that has asserted itself in a number of difficult and high-profile cases in recent years. The Holohan case in January 2006 and, more recently, the Siobhan Kearney murder trial raise difficult moral, ethical and judicial questions. In the storm of media coverage and public opinion which typically accompanies such cases, it can often be difficult to engage in a measured debate. This is understandable because the victims of crime, particularly those crimes which offend people’s sense of decency and regard for human life, deserve sympathy and resolve of and support from their communities, broader society and legislators. It can be difficult to resist calls for immediate and wide-ranging action at such times. In that context, I welcome the Minister’s reasoned response, by means of the provisions in the Bill, to some of the concerns that have been expressed.
The usefulness of victim impact statements has been debated in numerous jurisdictions across Europe and in Australia and North America. Many see such statements as necessary and as an empowering outlet for victims who have been utterly disempowered by the powers against them or their family members. Those who disagree with victim impact statements frequently argue they do not sit easily with the dispassionate and unsentimental nature of the criminal justice system. I can appreciate both points of view. While I do not wish to further disempower the victims of crime in any way, a number of recent high-profile cases remind us that victim impact statements can occasionally serve the interests of no one but those in the tabloid press.
Nevertheless, I am of the view that the relevant evidence and international opinion and best practice justify the enshrinement of victim impact statements into Irish law. In a survey conducted in Canada, over 1,300 victims of crime were asked for their opinion on such statements and to rate the importance of various legal rights. Four in every five of those respondents rated their ability to deliver a victim impact statement as very important to them.
It is frequently argued that the criminal justice system sometimes appears to expend all of its energy on the perpetrators of crimes while totally ignoring their victims. The introduction of measures to protect a victim’s right to make a statement is a welcome step towards rebalancing the burden of fear and hardship from the victim to the perpetrator. However, I concur with the assertion of the Irish Council for Civil Liberties, ICCL, that various small measures should be applied to ensure the passage of the victims through the criminal justice system is made somewhat easier and less traumatic. No victim should be made to feel further and undue intimidation or harassment during court proceedings. As the ICCL points out, the privacy of the victim is also paramount. A victim will have already suffered an attack on his or her dignity and rights and it is important the criminal justice system makes every responsible effort to reinforce the existence of those rights while the victim is moving through the system.
On the important point of a victim’s privacy, there are a number of measures in the Bill which I welcome and support. The fact the Bill will allow minors and vulnerable individuals, including those with mental health difficulties, to submit testimony through trusted intermediaries or via video link is a positive and progressive step that will ease the emotional burden placed on these individuals. On a practical note, will the Minister indicate the envisaged timescale regarding the introduction of a system of this sort?
As attested to by the ICCL, it is the little things that are absent from the Bill. Those little things are largely environmental in nature and have the ability to radically alter victims’ perceptions of the criminal justice system and the court experience. It is simply a no-brainer that victims and their families should be guaranteed the right to enter and exit a court in privacy. Similarly, waiting facilities for victims and their families should be provided separately and consistently. These are hardly mountains to climb but they are issues that continually arise for victims. In such circumstances, we must ensure they are dealt with in the legislation.
I support the establishment of the victims of crime office in the Department of Justice, Equality and Law Reform. I do not believe in playing politics with people’s human rights or their right to seek redress. The Minister’s commitment to victims’ rights seems entirely genuine and he is acting in accordance with previous promises from and pronouncements by his Department. In light of the recent destruction of an equality and rights infrastructure which took almost two decades to build, it is comforting to know that somewhere deep in the Department of Justice, Equality and Law Reform there lurks some sort of commitment to people’s human rights.
With regard to the proposals on amending legislation on double jeopardy, I agree with the comments of Senator Mullen. We must be clear in respect of what we mean by the term “new and compelling evidence”. The law, as it currently exists, can only be changed with caution. I expect, therefore, that my party will table some amendments in respect of this matter on Committee Stage.
I have remained positive during my contribution and I do not wish to end on a negative note. In those circumstances, I reaffirm my support for the advances the legislation will afford to victims.
Senator Jim Walsh Senator Jim Walsh
Senator Jim Walsh: I welcome the Minister. This Bill is an important component in the fight against crime. Significant improvements have been made in the context of strengthening the legislative framework to enable us to tackle crime. Public confidence in the criminal justice system has been dented by the fact that known criminals are able to walk our streets almost with impunity. This brings the entire system into disrepute. Any moves we make to strengthen the prospect of those who are guilty of serious crimes being held to account for their activities must be welcomed.
The Bill addresses two important topics. In the first instance, it revises the law on victim impact statements. A number of high-profile cases in recent years highlighted the need for certain amendments to be made in that regard. I welcome the fact that in certain circumstances acquittals can be quashed and cases retried. I accept the legal profession holds dearly to the double jeopardy rule and one can to some extent understand why that rule is in place. However, many criminal lawyers specialise in exploiting technicalities and there are those on the Bench who indulge the exploitation of such technicalities, even in respect of minor offences. As a consequence, the administration of justice may not be completely fulfilled.
Many eminent lawyers will inform people who go to court that if they are seeking justice, they are in the wrong place and what they will get there is the administration——
Acting Chairman Acting Chairman
Acting Chairman: I advise the Senator to be careful with regard to his comments on these matters. He should observe the proprieties that exist in the context of the separation of powers.
Senator Jim Walsh Senator Jim Walsh
 Senator Jim Walsh: What the Chair has said will not stop me from commenting on the Judiciary in general. I accept that with regard to individual cases, we must not get involved. However, there are questions to be asked and we are elected to voice the concerns of the public and to improve the administrative framework relating to our laws. The matter of victim impact statements arose from the Hogan review group. One of the previous Bills introduced measures concerning the right to silence, again arising from the Hogan review group, and the fact that inferences can be taken where people exercise the right to silence when questioned about specific crimes. I welcomed it at the time. This is the direction in which we should be going. There is a legal right, not subject to the discretion of the judge, to make victim impact statements, which is welcome. I welcome the fact that vulnerable witnesses, including children, can give evidence through audiovisual links. This is a step in the right direction. In cases of rape and sexual offences, it is difficult for those who are under age to recount the criminal acts and anything we can do to alleviate their trauma is welcome.
The Minister has included provision in the Bill that no inference can be taken from the failure of a victim to exercise the right to a victim impact statement. It is essential that the absence of a victim impact statement cannot give rise to any inference. This is extended to other family members.
The victim impact statement is taken into account by the judge before passing sentence. It appears to be an influencing factor in the sentence. Some people can be much more articulate in the manner in which they display and illustrate the impact of the crime on them and their families. It is important that impact statements that do not have as great an impact as others do not dilute the sentencing.
I welcome the amendments changing double jeopardy. I will address some reservations. Regarding acquittals, when new evidence comes to light subsequently, through advances in technology and science, the Garda Síochána has greater technical capacity to mount a successful prosecution than heretofore. Where such evidence comes to light in the case of serious crime, such as those carrying a life sentence, this is appropriate. I have some reservation that crimes that do not carry a life sentence but which may be serious crimes, with tremendous impact on victims, are excluded from this. I refer to serious sexual offences, which may carry long sentences but not life sentences. It is a pity they cannot be included. This is a step in the right direction and I hope it will advance in time.
Where it subsequently comes to light that someone has committed perjury or where witnesses were intimidated or bribed, there can be an application for a retrial. The Minister has included precautionary measures with regard to this function. The DPP is now empowered to bring a with prejudice appeal against an acquittal where an error on a point of law has been made by the trial judge where that error has resulted in an acquittal. That is essential.
Why do we have laws? We have laws to protect society and to ensure people in society conform to a required norm. Where that is breached and it has an impact on others, people must be held to account for such actions. At its simplest, those who are guilty must be brought to trial and where they have escaped in the first instance through error, that can be corrected.
The Minster has pointed out that there cannot be retrospective implementation of these measures for constitutional reasons. We have had serious crimes in the past and where people have not been brought to justice and where evidence is available that would have a high probability of success, we should not be beyond proposing constitutional amendments to allow this. Where people committed crimes, were brought to trial and were acquitted, they should not necessarily escape the hand of the law.
Senator Feargal Quinn Senator Feargal Quinn
 Senator Feargal Quinn: I welcome the Minister, the Bill and the effort to ensure there is respect for legislation. I was in the House in 1993 when the Criminal Justice Act 1993 was passed. Repealing section 5 is clearly necessary because there is a danger that the respect on the side of victims is in danger of being damaged. This Bill will end the ban on retrials of those acquitted even where important evidence emerges about involvement in the offence. I welcome the fact the DPP can order a retrial where the original prosecution was “tainted”, a very good word that had not occurred to me, due to the intimidation of jurors or witnesses or where it emerges a witness committed perjury. In addition, the DPP can apply to the Court of Criminal Appeal to seek a retrial in cases where a trial judge has given a mistaken ruling on a point of law, leading to the acquittal of an accused person. These are the points that disturbed victims and brought law into disrepute. The proposed legislation will provide for a number of exceptions to the standard convention of international law that an accused person cannot be tried twice for the same crime. This is double jeopardy.
I had not realised the differences in many cases between civil and criminal law. I thought of the OJ Simpson case in the US but also the civil case in Northern Ireland, which reminds us of the double jeopardy rule that could apply. The Bill will also reform rules on the use of victim impact statements in trials and expand the range of persons who can make a victim impact statement in court to include the relatives of murder victims. Judges will be allowed to impose bans on the broadcast or publication of all or part of those statements.
I welcome the part of the Bill that allows the DPP to reopen cases concerning offences that carry a mandatory or potential life sentence. That is a necessary change. If new, reliable evidence comes to light that implicates the person concerned with a high degree of probability after the trial, the opportunity for justice should not be passed up. I am concerned at the changes to the delivery of victim impact statements. Calls for reform of the legislation governing victim impact statements were made after those several instances to which I referred, including one where evidence that did not come out at the trial was conveyed in the victim impact statement. I will not refer to the specific case but we know what we are talking about.
This Criminal Procedure Bill repeals section 5 of the Criminal Justice Act 1993, to which I referred, which currently governs the use of victim impact statements and substitute and alternative frameworks. The category of persons allowed to make such a statement is extended to the family of the deceased — a parent, guardian or other person acting in loco parentis where the victim is a child and unable to give evidence — or a family or guardian of a victim who has a mental disorder and is unable to give evidence.
In addition, the general scheme sets out the boundaries for publication or broadcast of a victim impact statement. I read a recent article by Ms Deirdre Duffy, entitled “ ‘Balance’ in the Criminal Justice System: Misrepresenting the Relationship between the Rights of Victims and Defendants”, which appeared in the Irish Criminal Law Journal. She indicated that guidance is required on the weight to be attributed to a victim impact statement and it remains unclear who has responsibility for the victim impact statement. She makes the point that it is not apparent who should guide the victim through the preparation of the statement. The problems posed by victims who stray outside the boundaries of the victim impact statement are not addressed.
Having learned the lessons of past use of the victim impact statement, I am concerned about these drawbacks, particularly that the boundaries of the statement are not addressed. I suggest that certain constraints to the statement be firmly set down in the Bill. Perhaps there is a need for an amendment to the Bill in this regard on Committee Stage.
It must be remembered that diminishing the rights of the defendant will not advance the rights of the other side, and both sets of rights must be protected in full in terms of European law and international rights. Ms Duffy states:
It is clear from the overview of European and international human rights standards that the advancement of the rights of crime victims can be achieved without restriction on defendants’ rights. Legitimate reforms to the victim impact regime have been plucked out and tagged on to a host of criminal procedure reforms in order to dress up a package of measures as victim-centred.
I mention this quote because it is necessary to draw attention to the matter.
With this Bill it seems we are tampering with fair trial rights founded on our Constitution, as Senator Bacik referred to. I am reluctant to support it wholeheartedly until the Minister of State is able to put my mind at rest with regard to the area of which I spoke. The legislation certainly is needed and we must act on it. The main objective of this is to ensure the law is held in high regard. If this has not happened, it is because these flaws in this area have yet to be looked at.
Senator Bacik referred to some of the new technology being introduced, such as DNA analysis, which enables more evidence to come about at a later time. It would be a shame if we could not use that technology which enables us to discover something we did not know when a trial originally took place. It would provoke frustration and outrage in victims who could feel that evidence has come out but not been used because the law as it stands prevents this.
I welcome the tenor of the legislation and its objectives. On Committee Stage we, along with the Minister, should cover any of those areas that elicit concern.
Senator Paul Bradford Senator Paul Bradford
Senator Paul Bradford: I am glad to have an opportunity to say a few words which I suspect will be relatively uninformed where this legislation is concerned. It is an important proposal being brought forward by the Minister and from what I have heard from previous speakers, there is a general welcome in the House for it. I am at one with the previous speaker, Senator Quinn, in welcoming the proposal while appreciating that we must tread carefully and examine the Bill’s detail fully. In that regard, Committee Stage will be of much more interest to us.
The primary duty of the Minister for Justice, Equality and Law Reform, or the government of any state, is to protect and defend the state and its citizens. In that regard, this legislation is a step in the right direction as it will give a further possibility of justice to those who feel they have been denied it.
The part of the legislation which interests me most is the proposed modification of the rule against double jeopardy. It would be inappropriate to quote particular cases in this House but very many of us know of cases where acquittals did not seem to be the fair or just decision of a court. Up to now, once a decision was made in that regard, it was final. In a number of relatively high profile cases over recent years, including murder cases, the acquittal of the accused left a deep sense of injustice in the community and the family of victims. In this regard, the possibility of new evidence and a new scenario emerging where a retrial could happen is very welcome.
People contacted me about this legislation whose loved ones were victims, with one being a murder victim. Such people are concerned and disappointed that the legislation apparently is not retrospective. Will the Minister of State clarify that? From when will this legislation, if approved, apply? Could it apply to cases which have taken place and where family members feel justice has not been done? I look forward to the Minister of State’s initial reply to that and a further teasing out of that aspect on Committee Stage.
We all appreciate that the criminal justice law in this country is based on fairness and the absolute need for the State to have the necessary evidence to convict the guilty. That is correct and must always be the case. We are also aware of cases where for various reasons, such as the non-presentation of evidence or the intimidation of witnesses etc., a fair and just result to a trial does not seem to occur.
This legislation, if it would allow reflection and the re-entry of particular prosecutions, should not be feared. We should never fear justice or the opportunity to allow the vindication of people’s right to a fair trial, and we should not fear the possibility of ensuring guilty people who have walked free are brought back into court and have the charges put against them again. In that regard, the issue of double jeopardy has been a major bone of contention and I welcome that it is to be addressed. I look forward on Committee Stage to ascertaining when the possibility of retrials in this regard will commence and if there will be retrospective application to cases which have received adjudication.
I also note the proposed changes on victim impact statements. There have been a few controversial cases involving victim impact evidence and we must be very cognisant of the rights of victims and their need, where they so feel, to have their feelings made known in court. For many, although not all, it can be a way to deal with suffering, bereavement and anger if they can state their feelings in front of the court. Any expansion of that particular entitlement should be welcomed.
I will leave my remarks at that as the Minister of State would recognise that I come to this legislation with no legal expertise whatever. I am purely reflecting what constituents are saying to me, especially constituents who feel the acquittal of the person charged with the murder of their sister was incorrect and wish the case to be reopened.
Deputy John Moloney Deputy John Moloney
Deputy John Moloney: The Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, apologises for the fact that he could not remain for the conclusion of the debate. I will bring the issues raised by Senators Quinn and Bradford to the Minister’s attention. I thank Senators for their contributions to this useful and informed debate. The Minister may wish to consider Senators’ points with a view to amendments on Committee Stage, where appropriate.
Meeting the needs of victims of crime is a major objective for the Government. This Bill contributes in a significant way towards meeting that objective. The importance victims attach to impact evidence cannot be underestimated. The significance of the proposals on the quashing of acquittals will also come to be seen to be important.
Although legislation has an important role to play in this regard, much can also be achieved by other non-statutory means. For example, the victims of crime office was established as an executive office in the Department of Justice, Equality and Law Reform under the justice for victims initiative, launched by the Minister in June 2008. Its main role is to promote and support the development of services for victims of crime. It is engaged in a major review and revision of the victims’ charter, first introduced in 1999. This work is expected to be completed in the autumn.
Similarly, Cosc, the National Office for the Prevention of Domestic, Sexual and Gender-based Violence, supports and works closely with State and non-governmental organisations. Its mission is the delivery of well co-ordinated services. It has no direct role in the delivery of services but its co-ordination role is vital to ensuring the effectiveness of the initiatives taken by those organisations concerned with victim support.
Other agencies attached to the Department also provide a broad range of services and supports to victims of crime. The Garda has developed its charter for victims of crime with protocols on the information to be given to victims. Garda family liaison officers are appointed in more serious investigations.
The Courts Service has taken several steps to make the experience of being in court less stressful for victims. It provides training to volunteers to accompany victims and their families to court. Liaison officers have been appointed at every court venue where court staff are based. There have been many improvements in the facilities in courts buildings, including secure and private spaces for the victims of crime. Special seating is provided for victims’ families in murder and manslaughter cases. The courtrooms in the new Criminal Court complex are designed to minimise the proximity of victims and their families to defendants and accused persons.
The Prison Service also has victim liaison officers who enter into direct contact with victims to inform them of any significant developments in the management of the perpetrator’s sentence as well as any impending release. The liaison officer also provides victims with information on the prison system, for example, remission on sentences and parole, including the operation of the parole board.
The probation and welfare service devotes much time to assisting offenders but is also active in assisting victims. The preparation of victim impact reports provides one example. These written reports for the court were referred to by the Minister with the first or mandatory element of the structure. The Department supports restorative justice projects through the probation and welfare service. It currently provides funding to two projects, in Tallaght and Nenagh. Restorative justice gives the victim a voice and the offender an opportunity to take responsibility for his or her actions.
I wish to refer to the role of the Director of Public Prosecutions in the area of victim support. The director is independent and has a primary role to bring prosecutions, but his awareness of victims is evident from the development of the reasons project. It applies to cases where a death has occurred. Reasons for decisions not to prosecute, or to discontinue a prosecution, are to be given on request to parties closely connected with the deceased. Court procedures also recognise the position of the victim by, for example, allowing them to give evidence via television links in cases of sexual offences. Several provisions are in place to protect victims’ anonymity.
I was pleased to see that the proposals on acquittals were well received and the Minister’s measured approach was acknowledged. The proposals represent a major break with existing procedures but, in practice, they will be applied on an exceptional basis. The important point is that such cases can now be dealt with and the outrage and frustration felt at the occurrence of an undeserved acquittal will be a thing of the past. A remedy will be put in place.
The Bill adds to the developing awareness of the needs of victims. I commend it to the House.
Question put and agreed to.
Committee Stage ordered for Tuesday, 16 June 2009.
Sitting suspended at 1.25 p.m. and resumed at 2.30 p.m.
Seanad Éireann 195 Criminal Procedure Bill 2009: Second Stage.