Thursday, 8 July 2010
Dáil Éireann Debate
I will discuss amendments Nos. 1 to 6. First, however, in the context of the horrendous gun crime and loss of life we have seen in this city and the ongoing problem we have with drug gangs, I wish to acknowledge at least one good news story today dealing with criminal matters. I congratulate the Garda Síochána on recovering the penguin stolen from Dublin Zoo earlier today. Store Street gardaí apparently recovered the penguin and returned it to Dublin Zoo. I hope it has recovered from its ordeal. It is important that we note occasions of good news as well as some of the more serious issues in the criminal area.
Deputy Alan Shatter: ——for Justice and Law Reform is not in the Chamber at present is that he is probably having a photo opportunity with the penguin in Dublin Zoo. We will discover that tomorrow, I presume.
I will turn to more serious matters relating to the Bill. The amendments that have been tabled are all to do with the treatment of victims of crime. The provisions in the Bill seek to extend the use of victim impact statements to some victims of crime but not to all of those to whom it should be extended. The provisions contained in the Bill relating to victims of crime have taken three years to reach the point of being enacted by the House. Their origin was stimulated by the Victims’ Rights Bill, which I published on behalf of Fine Gael in 2007 and which was voted down in the House at about this time of the year in 2007. That is almost three years ago. The Minister for Justice and Law Reform promised at the time that he would, within six months, bring reforming legislation before the House to give greater protection to victims. It has taken three years to get to the point we are at now. That is indicative of a gross failure on the Minister’s behalf to give to the victims of crime the priority to which they are entitled. Indeed, this Bill does not address many of the issues that needed to be addressed. The amendments we have tabled seek to address some of those.
The second amendment would insert a new section 5 which would provide: “A victim or member of a victim’s immediate family who has welfare, counselling, medical or legal needs arising from the commission of an offence or as a result of anti-social behaviour shall have access to services that are responsive to those needs insofar as resources are available.” One of the difficulties that victims of crime constantly experience is that they feel they are not kept informed. After they have reported a crime to the Garda Síochána, they do not always know if their complaint is being taken seriously. There is a deficit or a failure on occasions in providing information. If an investigation is proving fruitful, they are not so informed, even in a manner that could not in any way impede or prejudice the investigation.
Ultimately, when court prosecutions take place, all too frequently victims of crime turn up at the court not knowing what to expect. There can be continuous adjournment of criminal proceedings without the possibility of such adjournments being first explained to them. For a victim of crime, going to court is always a traumatic experience. What occurs in the courts is not always fully explained to them and, on occasions, there are technical exchanges between lawyers and all a victim understands is that for some reason a case is being adjourned or a judgment is being reserved. The consequences and how matters will proceed in the future are not adequately explained to them.
There are also instances of there being a total failure to refer victims to essential social services or, indeed, of the HSE providing the assistance required. I am aware of a case that has received substantial publicity in recent days and which has been referred to the Ombudsman for Children. It is the case of a young girl who, between the age of nine and ten years, allegedly was the victim of sexual assaults. Her mother has complained that the HSE failed to provide her with the type of medical assessment required urgently or with the psychiatric assessment and counselling required. This young girl is now 14 years of age, allegedly suicidal and the Director of Public Prosecutions, DPP, has on two occasions declined to prosecute because the book of evidence has not been adequate. There was a failure on the part of the Garda in that case and of the HSE to adequately co-ordinate between themselves. The failure to prosecute has, of itself, had a detrimental impact on the psychological well-being of this young person.
There are far more reports to the Dublin Rape Crisis Centre, for example, by victims of alleged rape than ever find their way into the Garda station or through the courts by way of prosecutions, because victims are reluctant to come forward and they do not always get the supports they require. This amendment is designed to ensure that victims are kept informed, are properly respected, that the State addresses their needs in a reasonable way within the capacity of the State and that those working in State services, be it members of the Garda or people in the health or social services, are sensitive to the needs and requirements of victims and also immediate family members, who might be just as traumatised by an event that results in a criminal prosecution.
This is a provision that Fine Gael originally proposed in the Victims’ Rights Bill. I had hoped to see a similar provision in this legislation but it is not there. I am hoping this is an amendment the Minister will be willing to take on board. The other amendments that are linked to this are in a similar vein, to protect victims and ensure they are kept properly informed. The new section 6 we wish to insert states:
Then there is a proposed section 7 which addresses the issue of ensuring victims can be kept informed and have access to a member of the Garda Síochána who is the person directly responsible for investigating their case.
It then details the various possible outcomes of proceedings as between convictions or pleas of guilty, acquittals or deemed acquittals and any decision of the prosecution to modify or not to proceed with charges laid, including any decisions to accept pleas of guilty.
All too frequently, in the criminal justice system, a plea to a lesser charge than that originally levied, is accepted by the Garda Síochána and the courts, resulting in the person who has pleaded guilty being subject to a lesser penalty, be that a financial penalty or sentence. All too frequently, the reason for those sort of agreements is not explained to the victims of crime. On occasion, there may be a conviction and judicial review applications are made to the High Court which may in the end result in the High Court setting aside a conviction. I am aware of instances where the victims of crime have learned of the outcome of such judicial reviews from news broadcasts on radio or television or when they pick up a morning newspaper. That is not appropriate and it is not showing the respect to the victim that the victim should receive when he or she has given information to the Garda, co-operated with the Garda, given evidence as a witness in a case, when they learn from a newspaper report of the outcome of a High Court action which may result in a conviction, having been obtained, being set aside.
The other information that is important to be given to victims is that where applicable, the possibility of obtaining protection by use of the domestic violence legislation and the court’s jurisdiction to order that information identifying the address of the place where the victim lives or works not be given to an accused or an offender.
In the original Bill as published, we included detailed provisions to try to protect the anonymity of a victim where that was necessary and where the individual was under threat. In my view, it is desirable that in certain circumstances, the court should be able to make such orders.
I will not read through the entirety of the provisions contained in this section of the Bill because it will occupy the rest of what is a limited and guillotined session. However, I wish to draw attention to the fact that victims need to be informed of the circumstances in which they can preserve their anonymity where proceedings are brought in respect of rape or sexual offences and the general jurisdiction granted to the courts to make protection of persons orders. These are all important issues.
Amendment No. 5 relates to limitations on duties to give information. Essentially, those limitations are to ensure that the information given cannot impede an investigation or prejudice a prosecution.
Amendment No. 6 allows that where a victim has a support person, someone who has been appointed to provide him or her with assistance and support to come to terms with the ordeal he or she has suffered and to assist the victim through the court process, that person can be given information which he or she can then explain it to the victim who may be upset and distraught.
It has long been my belief that our criminal justice system and criminal law does not give adequate respect to the rights of victims. Victims are seen in some ways as ancillary to the criminal justice process and not central to it. On occasions they are seen as individuals who will give evidence but who are not really entitled to information. We do not always treat them in human and considerate terms and in the manner that they should be treated. In saying that, I wish to make very particular the point that we have within our social services and within the Garda Síochána a large number of people who go out of their way to be of assistance to victims. It would be wrong not to say that. I am well aware of members of the Garda Síochána who have gone way beyond the bounds of duty to provide help and assistance to individuals who have suffered trauma as a consequence of crime. I would not want to give the wrong impression in that context.
All too frequently, because of the pressures of work, the fire brigade nature of services provided within our health services on occasion, the pressures of events, the needs of victims get lost. We should reflect these needs in our legislation by means of statutory provisions and not just in victims' charters. There should be statutory recognition of the position of the needs of the victim. We need to have in place provisions in legislation such as the Criminal Procedure Bill, specific identifiable procedures and standards that should be adhered to in the interests of victims of crime.
In that context, making such provision and the statutory agencies complying with it, will encourage people who are the victims of crime to come forward. There is a lot of crime committed which is never reported to the Garda. On occasions it is not reported because people feel too stressed; on occasions it is not reported because they fear intimidation; on occasions it is not reported because they have had the experience in the past of being a victim of crime who has made a report to a Garda station and who has received no feedback of any nature thereafter, as to what was done to investigate the complaint made by him or her. Some individuals have, on occasion, sought that information and not received it. An added difficulty has been where files go to the Director of Public Prosecutions and it is believed a prosecution will take place and for reasons that until relatively recently were never the subject of explanation, the DPP concludes that no prosecution can take place.
There are a variety of reasons this can occur. The evidence may not be strong enough, some mistake may have been made in the investigative process, there may be some difficulty in the context of the manner in which an alleged offender was interviewed. There can be myriad reasons a prosecution does not occur. For people who have been the victims of crime, for far too long no explanations were ever given by the DPP where that did not occur. We now know that in a discrete number of areas, the DPP has made provision to give information to alleged victims and I hope he will extend this in the future.
Acting Chairman (Deputy Charlie O’Connor): The normal procedure is for the Minister to respond to a particular Deputy but if Deputy Shatter is amenable I have no problem either. I invite Deputy Rabbitte to proceed.
Deputy Pat Rabbitte: I support the thrust of this group of amendments tabled by Deputy Shatter. We live in a society where violent crime, unfortunately, is the order of the day. This group of amendments seeks to address the issue where the victim interacts with the criminal justice system. All Deputies have been engaged with persons who have been victims of crime and are bewildered by their experience. They are often traumatised by their experience and intimidated by the court environment. The Minister will say that some of what Deputy Shatter is advocating is already the practice. The point is that the opportunity to give expression to these provisions in statute should not be overlooked. That is the thinking behind these amendments.
The current DPP departed from the age-old tradition since the office was established to communicate, in limited circumstances, with the victim in respect of the tragedy that has befallen them. The Garda Síochána has measures that were unheard of 20 years ago in terms of staying in touch with the victim of crime and advising him or her on the progress or lack of progress in an investigation. Some members of the Garda Síochána are very good at it, others are not especially gifted in that area. It is important for someone who has had the experience of being a victim of violent crime. Frequently, such people do not understand how the criminal procedure operates and are bewildered by the twists and turns that can happen in a case that seems open and shut to them. There are many reasons, and Deputy Shatter alluded to some, a decision is made not to prosecute. It is exceptionally difficult for someone who was the victim of a serious crime to accept why that is the case. The calculation may be no more than that the file will not stand up in court or due to other defects. A judgment is made and it is very important in such circumstances that every effort is made to relay the information to the person who was the victim of the crime. I do not want to intrude on this debate again but I acknowledge that changes have been made in recent times that go some of the way to what is envisaged, albeit not in statute.
The DPP attended a recent meeting of the Joint Committee on Justice, Equality, Defence and Women’s Rights and talked about his office. He touched on this area and his comments were welcomed by members of the committee across the board. Certain tentative steps, albeit in a restricted area, have been taken by his office. From my minimal involvement with persons who find themselves the victims of serious crime, I know they appreciate this. I have dealt with serious unsolved crimes, as have other Members of the House. The dogs in the street allegedly know who pulled the trigger or who caused the trigger to be pulled in some dreadfully sad instances. It is very difficult to explain to the parents or relatives in such circumstances what is happening in the investigation and where it is likely to lead. It is greatly appreciated by those people when members of the Garda Síochána go out of their way to try to keep the family in touch and provide feedback. In the restrictive rubric of cases I have mentioned, a person in the office of the DPP is allocated to maintain contact when the Office of the Director of Public Prosecutions is involved.
Seeing as we are taking this opportunity to revise the law on criminal procedure and address double jeopardy, it is appropriate to take the opportunity to express these civilised requirements, that the victim be treated with respect and dignity and that information and communication should be given priority, in statute rather than having these measures in codes of practice or victims’ charters.
Deputy Éamon Ó Cuív: It is not the penguins, nor the zoo. This group of amendments deals with two broad areas, namely, the treatment of victims in amendments Nos. 1 and 2 and information to be given to victims in Nos. 3 to 6, inclusive. I acknowledge the Deputies’ concern for victims of crime and the need to improve the manner in which their needs and concerns are addressed by the criminal justice system. I listened carefully to the argument put forward. The Minister for Justice and Law Reform has made it one of his major objectives to improve the standing of victims of crime and sought to do this in ways that meet their needs and by using flexible and easily accessible means. This Bill is one of the ways the Minister has addressed the status of victims, through the greatly expanded provisions of victim impact statements and also in permitting the re-trial of acquitted persons where the DPP and the courts are satisfied there is sufficient reason to do so. The Bill protects victims against the abuse of the rules on character evidence by an accused who wishes to take advantage of situations where the victim is unable to respond. The Minister has provided a new structure for better communication between victims, their representatives and his Department. I refer to the victims of crime office in his Department and the Commission for the Support of Victims of Crime.
Later this month the Minister will launch a substantially revised version of the victims’ charter. Despite the well-known pressure on public finances, the Minister has succeeded in maintaining the allocation from his Department to a wide range of groups working with victims. His approach has been to meet the needs of victims in a variety of ways, including legislation and administrative action. The Minister has made it clear it is not necessary to address all issues through legislation. Apart from other considerations, legislation can be inflexible, can give rise to lengthy and costly disputes and interpretation and it lacks the capacity to deal quickly with a range of circumstances that arise in particular cases or as a result of evolving social attitudes and patterns of crime.
This difference of approach informs the Government’s attitude to the proposed amendments. However, I will state clearly the position of the Minister and the Government. Victims must be given greater recognition and their status must be improved. However, it is not necessary to legislate to ensure better services and support for victims and this is borne out by experience.
I, like the Minister, accept that legislation has a role to play but in many instances, people’s needs can be met more quickly and just as effectively by adopting administrative arrangements and by making firm commitments on what one is in a position to offer them. The new victim’s charter is an example of such publicly-declared commitments. I therefore oppose these amendments for reasons of policy and because, as will be seen, they are not necessary in view of the arrangements already in place.
However, I wish to comment on the individual amendments. Amendments Nos. 1 and 2, which pertain to the proposed Part on the treatment of victims, are strong in aspiration but appear to offer little concrete assistance. It would be disappointing to think that it might be necessary to provide in legislation that individual gardaí should be courteous to victims. As for giving victims’ rights to access medical and other services, the proposed sections 4(3) and 5 make it clear that such rights can be availed of, but only in so far as resources permit. The Deputy should be careful not to mislead victims into thinking he is doing something when it is all so highly qualified and contingent. Moreover, many of the services mentioned, such as medical, psychological and social care, already are available to every citizen under the public health system.
When considering the Part entitled, Information To Be Given To Victims, my first thought was that almost everything suggested therein already is being addressed. All the agencies in the criminal justice sector, eight in total, are contributing to the victim’s charter by setting out clearly what they can offer the victim. The provision in the proposed section 7(1)(m) caught my attention. It refers to the giving of evidence via television links or intermediaries. I ask Members to note sections 5 and 6 of the Bill before them, where they will see the Minister already has gone further than has Deputy Shatter. He is providing for this facility to apply not only in the giving of evidence but in the delivery of a victim impact statement. On this question of the information given to victims, I strongly recommend to Members that they should read the address given by no less an authority than the Director of Public Prosecutions at the annual conference of the Centre for Criminal Justice and Human Rights in UCC on 11 June 2010. He speaks with authority and full independence. His address confirms the central role of the Garda Síochána in keeping victims informed and he gives a detailed account of how the victim is kept informed and, when appropriate, is asked for his or her views on developments in a case when it reaches the court.
This brief analysis of this set of amendments supports the position that while one should legislate when necessary, one should not forget that one also can meet one’s objectives in other ways. My preference, which I share with the Minister, is for a mixed approach and therefore I will not accept this group of amendments.
Deputy Alan Shatter: I must take with a grain of salt the Minister’s comment about how one can deal with matters pertaining to protecting victims more quickly through administrative arrangements. Fine Gael introduced a Bill in this House three years ago that would have addressed all the issues in respect of victims and would have addressed those matters that fall outside the victim’s charter at present and which I now expect to be included therein. In the context of speed, it is the speed of a tortoise competing with the snail. I am unsure in which category I would put the Minister in addressing these issues.
I agree the victim’s charter is a highly positive development and I am pleased to hear that it is to be updated. However, to ensure that the State provides services to victims to which they are entitled, these matters should be incorporated into statute. There is a real benefit in so incorporating them. It was interesting to hear the Minister talking about the need for flexibility and not doing it by way of statute. He then criticised the extent to which the amendment is flexible. Clearly, one must draft something like this with a degree of flexibility built into it but in a manner that recognises the needs and rights of victims and which addresses the issue well put by Deputy Rabbitte in the context of the Garda Síochána. As I stated, some members of the force do extraordinarily good work in keeping victims informed and in being of assistance to victims. However, there are others who are not so good at that and victims fall through the cracks. This provision is designed to ensure this does not occur.
The critique the Minister made of the proposed section 7(1)(m) is not worth taking seriously because it is about advising people of their entitlement, in specified discrete circumstances, to give evidence by video link, particularly in the area of sexual offences. This is not always understood in the context of young children and this is something about which victims and their parents need to be informed at a very early stage in the process to relieve them of some of the added worry and trauma they fear in the context of a court hearing.
Deputy Éamon Ó Cuív: While I heard what the Deputy had to say, I must simply agree to disagree with him. The balance the Minister has struck is correct and it is important to know the limitations of legislation in some circumstances and that tools like charters can work more flexibly and effectively. Ultimately, it is very important that people are protected. As Deputy Shatter stated, the best way to provide a good service is for those who provide such services to put their hearts and souls into so doing. I was slightly amused by the Deputy’s zoological references today, which have included penguins, snails and tortoises. However, I remind Deputy Shatter about the race between the hare and the tortoise.
|Allen, Bernard.||Bannon, James.|
|Barrett, Seán.||Broughan, Thomas P.|
|Burke, Ulick.||Burton, Joan.|
|Byrne, Catherine.||Carey, Joe.|
|Connaughton, Paul.||Coonan, Noel J.|
|Costello, Joe.||Coveney, Simon.|
|Crawford, Seymour.||Creighton, Lucinda.|
|D’Arcy, Michael.||Deenihan, Jimmy.|
|Doyle, Andrew.||Durkan, Bernard J.|
|English, Damien.||Enright, Olwyn.|
|Feighan, Frank.||Ferris, Martin.|
|Flanagan, Charles.||Flanagan, Terence.|
|Gilmore, Eamon.||Hayes, Brian.|
|Higgins, Michael D.||Hogan, Phil.|
|Howlin, Brendan.||Lynch, Ciarán.|
|Lynch, Kathleen.||McCormack, Pádraic.|
|McGrath, Finian.||McHugh, Joe.|
|McManus, Liz.||Neville, Dan.|
|Noonan, Michael.||Ó Caoláin, Caoimhghín.|
|Ó Snodaigh, Aengus.||O’Donnell, Kieran.|
|O’Dowd, Fergus.||O’Mahony, John.|
|O’Shea, Brian.||O’Sullivan, Jan.|
|O’Sullivan, Maureen.||Quinn, Ruairí.|
|Rabbitte, Pat.||Reilly, James.|
|Ring, Michael.||Shatter, Alan.|
|Sheahan, Tom.||Sherlock, Seán.|
|Shortall, Róisín.||Stagg, Emmet.|
|Stanton, David.||Tuffy, Joanna.|
|Upton, Mary.||Varadkar, Leo.|
|Ahern, Bertie.||Ahern, Michael.|
|Ahern, Noel.||Andrews, Barry.|
|Andrews, Chris.||Aylward, Bobby.|
|Behan, Joe.||Blaney, Niall.|
|Brady, Áine.||Brady, Cyprian.|
|Brady, Johnny.||Browne, John.|
|Byrne, Thomas.||Calleary, Dara.|
|Carey, Pat.||Collins, Niall.|
|Connick, Seán.||Coughlan, Mary.|
|Cregan, John.||Cuffe, Ciarán.|
|Curran, John.||Dempsey, Noel.|
|Devins, Jimmy.||Dooley, Timmy.|
|Fahey, Frank.||Finneran, Michael.|
|Fitzpatrick, Michael.||Fleming, Seán.|
|Gogarty, Paul.||Gormley, John.|
|Grealish, Noel.||Hanafin, Mary.|
|Harney, Mary.||Haughey, Seán.|
|Hoctor, Máire.||Kelleher, Billy.|
|Kelly, Peter.||Kenneally, Brendan.|
|Kennedy, Michael.||Killeen, Tony.|
|Kitt, Michael P.||Lenihan, Brian.|
|Lenihan, Conor.||McEllistrim, Thomas.|
|McGrath, Mattie.||McGrath, Michael.|
|McGuinness, John.||Mansergh, Martin.|
|Martin, Micheál.||Moloney, John.|
|Moynihan, Michael.||Mulcahy, Michael.|
|Nolan, M.J.||Ó Cuív, Éamon.|
|Ó Fearghaíl, Seán.||O’Brien, Darragh.|
|O’Connor, Charlie.||O’Dea, Willie.|
|O’Hanlon, Rory.||O’Keeffe, Batt.|
|O’Keeffe, Edward.||O’Rourke, Mary.|
|O’Sullivan, Christy.||Power, Seán.|
|Ryan, Eamon.||Sargent, Trevor.|
|Scanlon, Eamon.||Smith, Brendan.|
|Wallace, Mary.||White, Mary Alexandra.|
There have been occasions where there have been convictions for serious sexual offences and where the courts have preserved the anonymity of the offender in circumstances where it is the view of the victim that the offender’s name should be disclosed. This can arise for family reasons. There is a broad range of circumstances where that could arise. As a matter of public policy, where the victim wishes the offender to be named, there should be no inhibition or difficulty in the offender being named. This is particularly important in circumstances of violent offences or sexual offences such as those to which this amendment applies. It means that, where someone has been convicted, their name becomes known. If they serve a sentence and they are on the register of convicted sexual offenders, I believe the general public is entitled to know. People are entitled to know if there is a sexual offender living near to them.
The recent court case got a great deal of publicity in which a convicted sex offender released from prison sought to prevent the media from publishing their address. The courts stated quite clearly there is a need to balance the rights of the offender with those of the public and the right to know the offender’s identity. We need to do more to provide protection in this area. Where a victim has no difficulty with the name of somebody being published, that name should be published.
The importance of this point has been demonstrated by the very great public concern expressed about the pending release, on 13 August next, of Mr. Larry Murphy, who on 11 February 2000 subjected a Carlow businesswoman to a shocking and prolonged sexual assault. He was sentenced ultimately to ten years imprisonment. When the man is released, he will be on the register of sexual offenders but there is a great concern as to where he is going to live. There is a concern within the local community that he be monitored. He is an individual reported during his period in prison to have undertaken no treatments or counselling of any description to come to terms with the vile assault in which he violated an innocent young person. The assault had a dreadful impact on that person’s life. There is a public need to know in this area.
I am familiar that in some parts of the United States the local state authorities have an obligation twice a year to circulate within communities the addresses of convicted sexual offenders who are living within those communities. That has not resulted in former offenders being subjected to assault or even being driven out of where they are living, but it has resulted in there being a general awareness on the part of individuals in the neighbourhood that there is a need to be careful and cautious. It is also to ensure that the police force keeps an eye on individuals who have committed heinous sexual crimes. The police keep an eye on them in the interest of the community to prevent reoffending.
Unfortunately, in this area, particularly in the context of individuals who have no sense of self-awareness or grief and who have gone through no treatment processes or therapy when in prison, there is a very strong likelihood that they will reoffend. In dealing with such offenders, we all know there is no guarantee, no matter what services are provided within a prison, that they will not reoffend. However, all the studies in this area have established that where there are appropriate therapeutic counselling and psychiatric-psychological services within a prison service, those who have committed sexual crimes and who avail of those services are substantially less likely to offend than those who have avoided engaging in such services. This amendment deals with one particular issue but it is an important issue. I hope the Minister will take the amendment on board.
Deputy Éamon Ó Cuív: This amendment repeats an amendment moved by Deputy Shatter’s colleague, Senator Regan, last November on Committee Stage in the Seanad. At the time the Minister urged caution as the issue required careful consideration. He stated his view that issues of anonymity for persons convicted of sexual offences should be considered in the context of legislation governing those offences. This remains his view.
The Minister also stated that anonymity and related issues were being examined in his Department as part of a review of sexual offences legislation. I can now tell the House of progress in this regard. The Minister of State with responsibility for children will be laying the draft general scheme of a sexual offences Bill before the Government for its approval in the near future. The Bill will include provisions that will reform aspects of the law on anonymity.
The Deputy’s amendment refers to a conviction for a “sexual offence”, but does not define this term and is too widely drawn. It seems to suppose that all those charged with a sexual offence have anonymity at present, but this is not the case. Under the law, anonymity applies to an accused in two circumstances, those being, where the accused is charged with a rape offence under section 8 of the Criminal Law (Rape) Act 1981 or with an incest offence under the Criminal Law (Incest Proceedings) Act 1995. Anonymity is not available to a person charged with a sexual offence other than rape or incest. Moreover, in the case of a rape offence, the protection is lifted if the accused is found guilty. The accused in incest cases retain anonymity even where the charges are withdrawn or the persons are convicted.
I began by referring to the complexity of legislating in this regard, but I will highlight one scenario that will clearly demonstrate how complex the issue is and how change must be well thought out. As we know, many sexual abuse cases involve multiple victims. This is especially true where the abuse occurs in a family setting. If only one of the victims in such a case was to avail of the possibility presented by this amendment to have the perpetrator named, that person could cause a distress to other victims who might be his or her siblings second only to the distress caused by the offender and deepen the rifts in the family. If the court refused an application from such a person in order to respect the others’ wishes, great distress might be caused to the applicant. No one would win. I doubt that the Deputy wishes to bring this situation about. In light of the information provided to me by the Minister of State on the general scheme of the sexual offences Bill, I am compelled to reject the amendment. Accepting it without greater consideration would be unwise.
Deputy Alan Shatter: The Minister was right to point out that my colleague, Senator Regan, raised this matter in the Seanad. The amendment was first contained in Fine Gael’s Victims’ Rights Bill 2008. The Minister for Justice and Law Reform has had more than three years in which to consider this issue, but the thought process does not appear to have advanced far in that time.
The Minister stated that the draft general scheme of a sexual offences Bill is to be laid before the Government by the Minister of State with responsibility for children next autumn. This is interesting. As we know, a draft general scheme is not a Bill. When such a scheme is produced, a minimum of two years pass before any detailed legislation emerges from the Attorney General’s office.
The promised legislation on this matter originated from a report published in November 2006 by a joint Oireachtas committee examining the question of sexual offences, but it is only now, some four years later, that a draft general scheme, not even a draft Bill, might be tabled before the Cabinet in the autumn. The report on child sexual offences and the issue of strict liability was published by the joint committee on the rights of the child in February 2009. It was supposed to produce a Bill, but we were told the Government was opposed to amending the Constitution to re-instate an offence of strict liability to protect children from sexual predators, particularly older people who prey on them for sexual pleasure. Instead, the Government favoured statutory changes, which were allegedly being worked on because this issue had been the subject of a 2006 report. We are now being told that legislation will be introduced in 2012 at the earliest, after the Government has left office. This is not treating the matter of sexual offences or the necessary reforms with seriousness.
The Minister cited a particular problem with the amendment. In some incest cases, only one or two family members are victims while other family members deny the allegations. The latter group wants the name of the alleged perpetrator, more usually the father than the mother, kept confidential. When someone has committed a sexual offence within a family, he or she is equally likely to commit one outside the family after being released from prison, having been convicted. The general public has a right to know, so this amendment should be accepted.
Deputy Éamon Ó Cuív: The Government has outlined its position clearly. This is a systematic way to deal with the issues, in that a general scheme will be laid before the Government. One must go through the procedures to ensure what one does legislatively——
Deputy Éamon Ó Cuív: When it is ready. I do not know the date. As the Deputy is aware, a great deal of legislation is being prepared by the Parliamentary Counsel and this must be done properly and comprehensively. These issues are always dealt with as speedily as possible, but I cannot give a date for publication. The Deputy seems to know, given the number of dates he was listing off a few minutes ago, but legislation has not been taking the kinds of timescale he mentioned.
Complex issues must be addressed. Making proposals is one matter, but we must ensure they have the desired effect once enacted. We must also consider every possible repercussion. The Deputy always refers to the importance of teasing out legislation, which is what the drafting process is about. It is examining all of the issues that might arise. We want the legislation we introduce in the House to be comprehensive and good. I have outlined the process in this instance clearly. I have also outlined the issues with the amendment. For this reason, I will be opposing it.
Deputy Alan Shatter: It is extraordinary that, given the revelations about child sexual abuse, institutional abuse, abuse within the church and the number of alleged rapes that do not produce prosecutions, the difficulties that have arisen with regard to children, particularly young teenagers, who are preyed upon by older people — usually men — and the publication of a report by an all-party committee ably chaired by the now Minister of State, Deputy Peter Power, that produced a plethora of detailed recommendations, there is still no chance of legislation four years later. At best, we are being promised a scheme and the Minister, who represents the Government, is unable to tell the House the date on which a Bill will be published. This is unsatisfactory. Despite the verbal sympathy expressed for the victims of sexual abuse, the truth is that the Government has failed to provide the new modern scheme of legislation that is required. It will fail to do so all the way up to the next general election.
This is a straightforward amendment which seeks to clarify the practice where an application is made for a victim impact report. The practice is that it is usually made by counsel for the DPP, and therefore it is necessary to make plain in the legislation that given that it is not customarily the victim directly who makes the application, but rather counsel for the DPP, it should be plain in the legislation that the words “the prosecution or” ought to be inserted. I should like to hear the Minister’s views on this.
Deputy Éamon Ó Cuív: I do not propose to accept this amendment for two reasons. First, a legislative provision which gives a person a right to make an application to a court is normally understood as permitting another person to make that application on his or her behalf. Subsection (3)(a) follows this approach by simply providing that upon application by the person in respect of whom the offence was committed, the court shall hear the evidence of the victim. This formulation facilitates the continuation of the current practice whereby it is the prosecuting counsel who generally makes the application on behalf of the victim. The Deputy’s objective in tabling this amendment is already achieved and so it is unnecessary.
Second, there is a concern that Deputy Rabbitte’s amendment, if accepted, could give, or might appear to give, the prosecution the right to make an application to the court on its own behalf, without establishing the wishes of the victim. I say this because the amendment presents the prosecution as an alternative to the victim. As the Minister stated at the select committee, the right to make a victim impact statement belongs to the victim, and the decision whether to exercise that right must be left to him or her. We must remember that not all victims wish to go through the ordeal of giving evidence at the sentencing hearing. Indeed, this is recognised in subsection (4), which provides that the absence of a victim impact statement shall not give rise to an inference on the part of the sentencing court that the offence had little or no effect on the victim. While I accept it is unlikely that the prosecution would proceed without consulting the victim, Deputy Rabbitte’s amendment would leave open that possibility. On that basis, since I do not believe this would be in the interest of victims, I will be opposing the amendment.
This amendment seeks to enshrine a new section in the Bill. That new section would stipulate: “Where a person in respect of whom an offence has been committed, or a family member of that person, proposes to give evidence under subsection (3) orally rather than in writing, it shall not be necessary for the court to give any particular direction or warning to that person in respect of his or her evidence.”
It is fair to say that everybody in the House knows the origin of this particular amendment, and that it refers to remarks made in the course of a ruling in the Court of Criminal Appeal on the Wayne O’Donoghue case. I believe those remarks by Ms Justice Macken may have been obiter dictum and I do not particularly want to go into the case. The point is, however, that there generally is not a problem in terms of the written statement and parties are usually on notice. However, where a person goes beyond what was in the written statement, and adds material orally, there can be a difficulty. Members of the House who are familiar with what happened in the Wayne O’Donoghue case will be aware of that.
Having said that, the question arises whether it is necessary for a mandatory warning to be given in such circumstances in terms of the delivery of the statement. On balance, I argue it is not desirable that it should become the mandatory practice. That is not to say I would want what happened in that particular case to occur again. The Minister, in subsection (5) of the same section has inserted a clause that would disbar publication of part or all of a statement added on in the circumstances I have described. I accept that this goes some of the way towards meeting the situation I am seeking to highlight. It is important, however, that we clarify this.
Deputy Éamon Ó Cuív: I draw Deputy Rabbitte’s attention to subsection (5), which he has referred to. It gives a sentencing court the power to prohibit the broadcasting or publication of all or part of a victim impact statement in the interests of justice. This mechanism provides the court with an alternative solution to that advocated by the Court of Criminal Appeal, albeit in obiter dictum remarks in the Wayne O’Donoghue case. In that case, as the Deputy has indicated, the mother of the victim referred to matters when making her impact statement, which had not been given in evidence in court, that made serious allegations against a convicted person. The additional material attracted extensive media coverage, which was, undoubtedly, very damaging to the reputation of the convicted person.
As the Director of Public Prosecutions noted in his address to the annual conference at the UCC Centre for Criminal Justice and Human Rights on 11 June, had subsection (5) been enforced at the time of the O’Donoghue sentencing hearing, the trial judge would have been entitled to make an order prohibiting publication of the matters which were alleged, but which had not, in fact, been presented, never mind proved in the course of the trial.
I believe the House will agree that the solution provided by subsection (5) is more in tune with the need to treat victims with a degree of sensitivity, and is preferable by far to a trial judge, warning a victim that he or she risks being held in contempt of court, with the potential consequences that might flow from that. It is in that spirt that I suggest subsection (5) provides a good solution, and I suggest the Deputy considers withdrawing the amendment. As I believe subsection (5) is a better solution, I cannot accept the amendment as proposed. Since I believe the existing provision is the best solution, I cannot accept the amendment as proposed.
Deputy Pat Rabbitte: I do not see how they are mutually incompatible. One can have subsection 5 and the proper disbarment of the publication of matter that wanders outside of what is contained in the written statement. One can also have the new section I have proposed. It is a belt-and-braces provision which makes clear the practice and the rights of the victim in such circumstances.
The Minister is arguing that subsection 5 allows the judge to require the media not to proceed with publication. He did not give, however, the downside argument in respect of accepting my proposal. Why should it not be clear that it is not necessary for the court to give any particular direction or warning in the circumstances described? My amendment may be considered a belt-and-braces approach but it does make clear the practices and procedures that ought to be followed when a family member or relative decides to exercise this right.
Deputy Éamon Ó Cuív: It is necessary to avoid a situation arising in which a victim was found to be in contempt of court. A better solution is to leave it to the judge if he or she feels it necessary to ensure the non-publication of matters that strayed from the written submission and resulted in damaging allegations against a person. The existing provision in subsection 5 is comprehensive enough and gives discretion to the judge.
This amendment proposes to insert a new and necessary section to make it clear the court has a general power to receive victim impact evidence, even outside the specific offences to which this section applies.
Deputy Éamon Ó Cuív: I do not propose to accept this amendment. It seeks to bring about a provision that already exists in the legislation. It is, therefore, not necessary. Section 5 of the Criminal Justice Act 1993, which will be substituted by section 4, sets out the circumstances in which a sentencing judge is required to take into account victim impact evidence and the circumstances in which a victim has the right to make a victim impact statement.
These circumstances relate to whether the offence for which a person has been convicted comes within the categories specified in section 5. Those categories are a sexual offence within the meaning of the Criminal Evidence Act 1992, an offence involving violence or the threat of violence, an offence under the Non-Fatal Offences Against the Person Act and an offence consisting of attempting or conspiring to commit such offences. These are the categories of offences in which such a mandatory regime is most acceptable. This statutory obligation does not prevent a judge from taking account of victim impact evidence in other types of cases if he or she considered such evidence would be helpful to determining the appropriate sentence. Judges have always had this discretion. The creation of a mandatory obligation in certain categories of cases does not alter that. The Deputy’s amendment is, therefore, unnecessary.
NOTICE OF CERTAIN MATTERS TO BE GIVEN TO VICTIMS OF CERTAIN OFFENCES
This amendment intends to ensure a victim knows whether an offender has or has not been released on bail and whether they are likely, in the case of the offence being committed in their local community, to meet the alleged offender on the street. Too frequently, victims who believe their offenders are being held in jail pending prosecution or sentencing discover that is not the case. It is important matters of this nature are communicated to victims.
The other amendments deal with similar and important issues. One in particular concerns the manner in which the Parole Board currently operates and the circumstances in which it can grant early release to prisoners. As matters stand, the victim plays no meaningful role in that process, is not necessarily informed of an early release of the offender and is not given the opportunity to make an oral presentation to the board on the reasons a prisoner should not be released.
The parole system, I believe, is fundamentally flawed and requires radical change. We need to move away from a system in which prisoners apply for parole, make a special pleading but the position of the victim is not properly represented. On occasions, persons are released far too early and re-offend. Victims often discover an offender’s early release when they meet them on the street.
We also operate a system in which early release is given regardless of the extent to which a prisoner has co-operated in taking essential treatment to address an issue which would ensure the prevention of him or her re-offending in so far as is possible. I am sorry for reverting to the case of Larry Murphy but it is a stark illustration of the problems in this area.
Earlier this afternoon I referred to the pending release of the convicted rapist Larry Murphy on 13 August 2010. My understanding is, that as a consequence of a decision made, this man will be the beneficiary of early release, having been convicted of a brutal sexual crime.
This early release is despite the fact that, as I understand it — although I am open to correction — he has undergone no treatment in prison. He will be released from prison with all the same tendencies and difficulties that gave rise to the commission of the offence of which he has been convicted. This needs to be radically changed. I do not believe any sexual offender should be released from prison early unless he or she has gone through a treatment process provided by the State.
Deputy Terence Flanagan: Hear, hear.
Deputy Alan Shatter: Part of the problem in this regard has been that the State, in the guise of the current Minister for Justice and Law Reform and his predecessors over recent years, has utterly failed to provide the type of service necessary to ensure that those who have been convicted of sexual offences and wish to undergo treatment are provided with treatment. Services have been made available for too few convicted sexual offenders. That is a real problem.
We need to ensure that when a sexual offender is sentenced to a term of imprisonment, action is taken by the State, as far as possible — because there are no guarantees in this area — to substantially reduce the possibility of his or her reoffending. In no circumstances should a sexual offender who refuses treatment be granted early release. That is a form of contempt for the judicial process in circumstances in which judges, as an independent arm of the State, have passed a sentence. It is a failure to ensure that the full weight of the law and the impact of a sentence imposed for a horrendous act is experienced by the offender. Frankly, it shows contempt for the circumstances of the victim and the trauma experienced by him or her due to both the crime itself and the necessity of going through a trial.
The amendments tabled here seek, in the context of dealing with the Parole Board, to address this issue. There is a need for substantial reform in this area. This is an issue I raised in a draft Bill as long ago as 2002 and again in an updated version of that Bill dealing with victims’ rights, which was voted down in June 2007, at which time the Minister told the House that the Government would address all of these issues. There has been no legislation on the manner in which the Parole Board deals with applications for early release of prisoners. There is no transparency to the system — which is necessary in the public interest, so the general public can understand how the system works — and no proper role for victims of crime. We should not maintain a system under which those who have been convicted of predatory offences, who have a real risk of reoffending, and where the public may be at serious risk upon their release, may be considered for early release if they have not accepted treatment.
In the context of convicted sexual offenders, there is a strong case to be made that upon their release they should be electronically tagged for a period of time and not simply be names on a register to which the Garda has access but the general public do not. The general public are then left in a position of not knowing who these offenders are because of the issue of anonymity, which we have discussed previously; and where the offenders’ names are known, there is no reasonable way of monitoring the way in which they are conducting themselves in the early period following their release. At the very minimum there should be electronic tagging for a period after release, particularly for those offenders who have not undergone a treatment programme.
Deputy Terence Flanagan: Hear, hear.
Deputy Éamon Ó Cuív: I remind Deputies of the general position, which I set out earlier, and the respective contributions that can be made by legislation and otherwise towards meeting the genuine needs and concerns of victims. This applies also to the current set of amendments. I will not labour the point but will make a few observations on the proposals included in this group.
At first sight these amendments seem worthwhile, with much to recommend them. If implemented, they would provide for a complete and comprehensive flow of information to the victim about developments at all stages of the case, including the outcome of bail applications; parole, temporary release or escape of the offender; hospital stays by the offender; or deportation, if applicable. In addition to the proposals on information to be supplied about progress in the case and other matters, there are a number of sections dealing with the appointment of a victim’s representative and, in amendment No. 20, a representative of the representative.
While elaborate and seemingly comprehensive, the whole edifice is deeply flawed and built on weak foundations. There are two major difficulties. First, the same arrangements are to apply regardless of the nature or seriousness of the offence. Second, the services are to be made available irrespective of whether the victim in question has requested or feels any need for them. Surely we should differentiate between types of offences with greater emphasis on particular types. We should also establish whether the victim actually wants to receive the information and show sensitivity and respect for his or her views.
This group of amendments lacks focus and the Deputy has not established that they serve an actual need. It, therefore, would be wasteful of time and resources if the proposed arrangements were to be put in place. I must point out that the Garda Síochána has developed systems for keeping those who need information informed, including family liaison officers. In addition, the prison service regularly supplies information to victims about the movements and release of prisoners. The critical point about that service is that it is driven by the victim. It is the victim who initiates the process and asks for the information. That is how it should be.
By way of confirmation, I will quote Article 4.2 of the European Council framework decision on the standing of victims in criminal proceedings, which states in clear and simple terms that member states shall ensure that “victims who have expressed a wish to this effect are kept informed” of developments. I have already mentioned a useful address delivered recently in Cork by the Director of Public Prosecutions. His independent and clear statement of the actual position set the record straight on the level and nature of information services available to victims.
I note that these amendments are taken from the Victims’ Rights Bill 2008, a Private Members’ Bill introduced by Deputy Shatter and rejected by the House. The amendments may have had context in that Bill but now they are at large without, for instance, the necessary definitions for terms used. I will give an example. In amendments Nos. 13 and 14 there are references to “a victim to whom this section applies”, but we are given no help in discovering who that might be. Terms such as “parole” and “temporary release” are used interchangeably, although they have precise meanings and are defined in statute. They should be used with care and in their proper context. I also point out with regret, and to underline the unsuitability of these amendments, that the recent change in the Department’s name is not reflected in them.
Deputy Terence Flanagan: Come on.
Deputy Alan Shatter: He is not serious.
Deputy Éamon Ó Cuív: I am not accepting these amendments because the policy behind them is confused and because, as presented, they would cause drafting difficulties. More significantly, they would require elaborate systems for their operation, which would not be targeted but would use up resources better employed in providing services where there is a demand.
An Ceann Comhairle: As it is now 6.10 p.m., I am required to put the following question in accordance with an Order of the Dáil of this day: “That the amendments set down by the Minister for Justice and Law Reform and not disposed of are hereby made to the Bill; Fourth Stage is hereby completed; and the Bill is hereby passed.”
Question put and agreed to.
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