Criminal Procedure Bill 2009
:
Criminal Procedure Bill 2009: Report and Final Stages.
Senator Ivana Bacik: I move amendment No. 2:
In page 6, line 36, after “person,” to insert the following:
“or any offence under the Non-Fatal Offences Against the Person Act 1997”.
We had a full debate on the amendment on Committee Stage. The Minister might recall - certainly my notes indicate - that he accepted in principle the merit of the amendment, which proposes to extend the type of offence to which the victim impact statement procedure would apply beyond those offences involving violence or threat of violence to cover other offences within the Non-Fatal Offences Against the Person Act. I believe the Minister accepted that offences involving the infliction of, for example, emotional harm or psychological harm on victims could be covered. I believe I mentioned offences such as the abduction of a child under section 16 of the 1997 Act, which it seems to me probably would not be covered under the current definition.
I believe the Minister accepted in principle that these sorts of offences should be covered by the victim impact procedure and he indicated he would introduce a similar amendment or certainly an amendment to extend the definition of harm in this context. I am disappointed he does not have an amendment under this heading. I did not press the amendment on Committee Stage because I understood he planned on introducing something similar. I do not see why there should be a problem with it because it is very much in keeping with the spirit of the legislation and simply extends the type of offence to which the victim impact procedure could apply.
Senator Ivana Bacik: I am grateful to the Minister for indicating his acceptance of the principle of the amendment and also for his indication that he will introduce an amendment in similar terms in the other House. However, I am disappointed that he could not have had the amendment ready for Report Stage in this House, given that it has been fully debated in this House.
I also believe that my amendment has the benefit both of certainty in terms of the offences it would cover and also of encompassing the issue of psychological or emotional harm. Of course “harm” as defined in the Non-Fatal Offences Against the Person Act 1997, includes non-physical harm. The Minister will be aware of the need to ensure co-ordination across criminal legislation. Inserting a definition based on the Non-Fatal Offences Against the Person Act - in other words encompassing those offences under it - might be the best approach, rather than using this new definition that does not have a straightforward relationship with the 1997 Act. The definition currently provided for that is an offence involving violence or the threat of violence. There is a problem with different definitions of different types of offence and a lack of co-ordination between statutes. I was really trying to co-ordinate with existing legislation and create some certainty. I ask the Minister to consider using my wording in his amendment in the other House. However, I will not press the amendment given what the Minister has said.
Senator Ivana Bacik: I am grateful to the Minister for accepting the principle of amendment No. 4 on Committee Stage and tabling his own amendment. On Committee Stage I raised the issue of the time gap between the injury caused and the death of the victim and that the family would be able to speak about the impact on the relative before his or her death. It may only arise in a small number of cases but it is an important principle.
Senator Ivana Bacik: I move amendment No. 5:
In page 8, between lines 26 and 27, to insert the following:
“(4) 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.”.
This amendment wants to make it clear that there should be no need for a warning to be given by a court to a person giving an impact statement. This has to do with the ruling of Mrs. Justice Fidelma Macken in the Court of Criminal Appeal in the O’Donoghue case in which she suggested the court might warn relatives that they would be in contempt of court if they went outside certain parameters. It should not be necessary for such a warning to be given.
Senator Ivana Bacik: This amendment would not rule out a discretionary warning by a judge. It is an indication that it is not necessary for a court to give a warning. It is inappropriate that there should be any sense that victims’ families would be singled out in this way.
Amendment put and declared lost.
In page 9, to delete lines 37 to 43 and substitute the following:
“ ‘broadcast’ has the meaning it has in section 2 of the Broadcasting Act 2009;”.
Senator Ivana Bacik: I move amendment No. 7:
In page 10, between lines 11 and 12, to insert the following:
“(7) This section is without prejudice to the power of a court to receive evidence regarding the effect of an offence, other than an offence to which this section applies, on the person in respect of whom the offence was committed.”.
This amendment seeks to make clear that a court has a general power to receive victim impact evidence, even beyond the specific offences to which the section applies. The Minister indicated he will broaden the type of offence to which the section applies when the Bill is considered in the other House. This may make this amendment less important. However, we felt it was important to cover the offences other than those already specified.
Senator Ivana Bacik: I move amendment No. 8:
In page 10, line 48, after “competent” to insert “and suitably trained”.
This amendment seeks to add an extra layer of qualification to the intermediary provided for in section 6 which inserts a new section 5A into the 1993 Act which allows questions be put to a child or person with a mental disorder through an intermediary who in a court’s opinion is competent to act as such. It is appropriate to add the term “suitably trained”. The giving of evidence of a child or a person with a mental disorder is a sensitive area. It would be useful for a court to have some indication as to competence. “Suitably trained” adds an extra safeguard.
I complimented the Minister and the Courts Service on Committee Stage on the excellent new facilities in the criminal courts complex. One of those facilities is the new room where children may give evidence through a live television link. The facilities are hugely improved and make the experience of giving evidence much less traumatic. It is equally important that the intermediary is both competent and suitably trained and that a court would be satisfied of that before appointing one.
Senator Ivana Bacik: I thank the Minister for his reply. There is anecdotal evidence of some issues in the past but, clearly, this is not a matter on which there is hard and fast evidence. It is important that the court would have some guidance on what constitutes competence, and yet I have not been specific in the amendment in such a way that would tie the hands of the court either. The wording is appropriate.
Amendment put and declared lost.
Senator Ivana Bacik: I move amendment No. 9:
In page 10, after line 48, to insert the following:
7.—In an application under this section the court may make such order as it sees fit to facilitate legal representation of a person in respect of whom an offence has been committed or a family member as appropriate, where it is appropriate to do so.”.
This amendment proposes to give power to the court to make an order to facilitate legal representation of a person in respect of whom an offence has been committed or a family member where the person in respect of whom the offence has been committed has died, “where it is appropriate to do so.”.
This arises out of research into the need for separate legal representation for rape victims, in particular, that I carried out with a team from Trinity College Dublin in 1998. Following that research there was an amendment to the Sex Offenders Act 2001 to allow for legal aid to be granted and a counsel to be appointed where a certain application was made by the defence in a rape trial or a sexual offence trial. Therefore, there is already some limited legal representation provided for, in that respect and, more generally, through the Civil Legal Aid Act 1995, to provide advice to complainants in rape or sexual offence cases.
This amendment seeks to broaden that principle somewhat to allow a court make an order in other cases to facilitate legal representation. It is a matter in which there is increasing interest by victim support groups, particularly, as I stated, arising out of rape trials, but it has got a more general application also. I would ask the Minister to consider incorporating this at this point.
The Minister stated on the last occasion that he felt there might be an impediment to full legal representation, and that is not sought here. It could be, for example, a more limited representation purely to provide advice, as is currently provided for in the Civil Legal Aid Act 1995 in respect of victims of sexual offences.
Senator Ivana Bacik: I move amendment No. 10:
In page 11, line 11, to delete “Court of Criminal Appeal” and substitute “Supreme Court”.
We had a full debate on the merits of the Court of Criminal Appeal versus the Supreme Court. I will not go back over it except to state that my party followed the recommendations of the balance in the criminal law expert review group, which had recommended the Supreme Court be the court for these matters rather than the Court of Criminal Appeal.
The Minister, in his response on the previous amendment, simply read out the same note he read out on Committee Stage, and I know what he will state on this one as well. However, I tabled the amendment again because there is a strong recommendation in that regard from the expert group.
Senator Ivana Bacik: I move amendment No. 11:
In page 11, line 26, after “concerned” to insert the following:
“, for example
This is the first amendment dealing with Part 3, which in some ways makes the most significant departure from current criminal procedure, which creates the new exceptions to the rule against double jeopardy. I stated already on Committee Stage that we need to ensure that the exceptions are drawn strictly given that this is such a departure from our current principle, that somebody who is acquitted cannot be retried on the same charge.
The amendment, which we discussed on Committee Stage, seeks to specify the sort of evidence which is constituted in the phrase “new and compelling evidence”. The idea is that by specifying what sort of evidence might constitute new and compelling evidence, we would offer some sort of limitation and, I suppose, lay out a marker that this would be something that could be done only in rare and exceptional cases.
In drafting this amendment, I have drawn from the balance in the Criminal Law Review Group report and also from the English legislation. The Bill specifies that such evidence is reliable, substantial and implicates the person concerned with a high degree of probability in the commission of the relevant offence concerned, and the amendment would add, “, for example
The Minister gave a full response on the last occasion stating that it was not appropriate to specify types of evidence. He also stated that
Senator Ivana Bacik: As I said, I am not wedded to the precise wording proposed, the wording used by the criminal law review group, but I accept that it was not drafting legislation. It gave these two examples of the specific evidence that might constitute new and compelling evidence. As the Minister acknowledged, it is likely that evidence on the basis of which acquittals will be reopened will include
The Seanad divided: Tá, 20; Níl, 27.
Senator Ivana Bacik: I move amendment No. 12:
In page 12, line 38, after “Court” to insert the following:
“if satisfied that the Director has given the person concerned all reasonable notice to facilitate his or her appearance and”.
I tabled two of these three amendments on Committee Stage and the Minister pointed out that I had omitted one related amendment. Therefore I tabled a third, but they are all, essentially, along the same lines. These are amendments relating to section 8, where the Director of Public Prosecutions is applying for a retrial order where a person has been acquitted, and section 9, where the director is applying for a retrial where there was a previous acquittal. The third one relates to the actual hearing of the retrial. In all those cases the amendments seek to ensure the court would only proceed to hear and determine an application in the absence of a person where it was satisfied not only that it was in the interests of justice to do so - the Minister’s wording - but also that the Director had given the person concerned all reasonable notice to facilitate his or her appearance.
On Committee Stage I pointed out that any of these applications could be made some years after a person had been acquitted. The person, in the meantime, clearly is regarded as innocent in law and therefore has no obligation to make his or her address known to the Garda or the authorities since he or she has been acquitted. It might well be that it is impossible or very difficult to track down the person. That is why it is important the court should be satisfied that the DPP has made all reasonable attempts to track down the person before it proceeds to hear and determine an application of this importance in his or her absence.
I was concerned on Committee Stage that the Minister had used the term, “absconding” about a person against whom a retrial order is being sought under any of these sections. I pointed out that “absconding” was not the appropriate term to use because the person might simply not be capable of being found, not through any deliberate attempt to avoid having to turn up in court but simply because a free person would have been entitled, for example, to have gone abroad in the meantime. It is a useful extra safeguard for the person who has been acquitted and in respect of whom these applications are being made.
Again, given the radical nature of the departure from the current rules of criminal procedure that Part 3 represents, it is important to ensure the DPP’s office has an obligation to make all reasonable attempts to track down a person against whom it is seeking a retrial order under any of these sections. I ask the Minister to agree to take on board, if not in these precise terms, the principle that the DPP’s office should be legally obliged to make all reasonable attempts to facilitate the appearance of the person against whom it is seeking these retrial orders under any of these three sections.
Senator Ivana Bacik: I thank the Minister for his reply. I should have said the amendments relate to sections 8 and 9, applications for retrial and, section 23 which deals with prejudice prosecution appeals. I take the Minister’s point that where a person who is aware the order has been made purposely absents himself or herself the subsection will allow the court to proceed to hear and determine the application in his or her absence. I am not disputing that. The amendments do not seek to prevent the court from hearing applications or appeals under section 23 in the absence of the person.
The amendments provide that the Director of Public Prosecutions should be obliged to give the person concerned all reasonable notice. It may be, as the Minister stated, that the courts will read that in because they already have the test that they can only hear in the absence of the person where it is in the interest of justice to do so. One would hope that they would read that in. However, it is important to oblige the DPP to give the person concerned all reasonable notice. Clearly, if the person then purposely absents himself or herself the court can proceed to hear the application in his or her absence if it is in the interests of justice to do so. The amendment does not seek to prevent the court from hearing the applications or the appeal in the absence of the person but places an extra obligation on the Director of Public Prosecutions. Given the enormous new powers being given to that office under sections 8, 9 and 23 this provides for a little balance in the interests of the acquitted person. I stress again that the term “acquitted person” refers to a person who has already been through the criminal justice process and has been acquitted and there is therefore an extra onus on us to ensure balance and safeguards for such persons where the Director of Public Prosecutions is being given these extensive and radical new powers.
Senator Ivana Bacik: I move amendment No. 15:
In page 18, lines 8 and 9, to delete “, the Attorney General or the Director”.
The wording to this amendment is different from the one I tabled on Committee Stage on section 14, an appeal on a point of law to the Supreme Court. On Committee Stage, I agreed the amendment could be better drafted. I have since redrafted it to encompass what was raised during those proceedings. The Minister was sympathetic to my point.
There is a clear imbalance in the section as currently drafted because an appeal lies by the acquitted person or the Director of Public Prosecutions from a determination of a court under section 10. As I said on Committee Stage, in practice it would only be an appeal by the acquitted person because section 10 specifies a decision will be made in favour of the Director of Public Prosecutions for a retrial order. If the acquitted person were appealing from a determination of the court under section 10, it is inappropriate that the Attorney General or the Director of Public Prosecutions would have a role in certifying that the determination involved a point of law of exceptional importance before an appeal could be taken.
I suggested to the Minister on Committee Stage that it would be more balanced and fairer to the acquitted person if it were simply at the discretion of the court. I want to leave it up to the court to make the determination or certify that it involves a point of law of exceptional public importance so that the appeal can be taken.
The Minister referred to section 29, appeals, but he did accept in principle that the appeal provided for in that section is somewhat different. It relates to an application for a retrial order where someone has been acquitted. It is a new and radical departure from our current principle that a person shall not be retried following an acquittal. Given that this procedure under this Part is entirely new, we must ensure the acquitted person is treated as fairly as possible.
I am willing to accept there should be filtering mechanisms in section 14 and that an appeal cannot be taken as a matter of course. It is wrong, however, that one of the parties involved, indeed the party in whose favour the decision is made, should have a role in certifying before an appeal can be taken by an acquitted person.
The Minister indicated a certain willingness to accept this principle on Committee Stage. I will not press the amendment if he indicates he will accept it, even as an amendment in the other House.
Senator Ivana Bacik: I thank the Minister for giving it his considered attention. As he stated, it is a lop-sided provision, especially if the DPP himself is appealing. Although section 10 provides for the court to make the retrial order, I suppose the DPP could appeal. In that situation, it seems even more unbalanced that he would be the one then certifying that the determination involves a point of law of exceptional public importance.
I am not sure my amendment in fact restricts the acquitted person’s options. In practice, the acquitted person is most likely to apply to the court for this determination. One can foresee that it might become almost a formulaic exercise, and I hope that does not happen. My amendment would have been a preferable option.
Question, “That the words proposed to be deleted stand”, put and declared carried.
Senator Ivana Bacik: I move amendment No. 16:
In page 19, line 35, after “section” to insert the following:
”, and only where the Director of Public Prosecutions is contemplating the making of an application for a re-trial order under section 8 or section 9 of this Act.”.
This arises out of Committee proceedings which did not include this amendment. In the debate on section 16, however, I stated that I would table it on Report Stage. I expressed concern about section 16 and the wide-ranging powers it appeared to give the Garda in terms of arresting an acquitted person, and I expressed concern about the potential for the Garda operating a fishing expedition, essentially seeking to obtain the new and compelling evidence required. There is a requirement that a superintendent or somebody of a rank superior to superintendent would apply to the court first, stating that he or she had information which was likely to reveal or confirm the existence of new and compelling evidence, but that is not a sufficient safeguard for the acquitted person. I would prefer to give the DPP a specific filtering role in respect of the operation of section 16.
What I have proposed is not to undermine section 16 altogether or to oppose the section as I did on Committee Stage because while the Minister explained fairly the purpose of section 16, there is still a requirement for an additional safeguard. I propose that there would be a safeguard in section 16(1) that a person could be arrested again in accordance with this section ”only where the Director of Public Prosecutions is contemplating the making of an application for a re-trial order under section 8 or section 9 of this Act”. In other words, I am giving a role to the DPP in the first instance in filtering this mechanism so that it cannot simply be a garda operating on his or her own behalf and that there must already be in contemplation by the DPP the making of an application for a retrial order. It seems that it is important to ensure against the sort of fishing expeditions about which I speak, and particularly because this section will allow an acquitted person to be arrested and then detained for up to 24 hours and questioned or interrogated during detention, even where he or she has already been tried and acquitted for a criminal offence.
It is a radical departure that section 16 proposes in terms of new powers for the Garda and I would ask the Minister to consider a safeguard of this nature to ensure the DPP will have a role in making a decision of some kind before the Garda can apply to the District Court for the permission to arrest and detain.
Senator Ivana Bacik: I am disappointed that the Minister will not accept the amendment in principle, although I take his point that section 9 should not be included. I also take his point that it would require a similar amendment to section 17, as well as to section 18 which allows for a search warrant. It is set up as an exception to the general safeguard provided in section 15. I drafted the amendment as a result of proceedings on Committee Stage because I considered it was an important principle to be included in the Bill. It is to ensure the Director of Public Prosecutions would filter, make or contemplate a decision before the Garda Síochána would move to seek an arrest or a search warrant in respect of an acquitted person.
The Seanad divided: Tá, 5; Níl, 25.
Senator Ivana Bacik: I move amendment No. 17:
In page 24, line 15, before “arising” to insert the following:
“which gives to a directed verdict or which prevented the jury from considering evidence which was properly admissible or a misdirection of law to the jury”.
This amendment was debated on Committee Stage, and I believe the Minister accepted it in principle then. It is based on the expert group report on balance in the criminal law. Page 248 of that report recommended a similar wording to qualify where the with-prejudice prosecution appeals may be taken. It is simply to say that these would arise where the decision is made on a question of law which gives rise to a directed verdict - I apologise for the typo in the amendment - or which prevented the jury from considering evidence which was properly admissible or a misdirection of law to the jury. The Minister indicated on
Senator Ivana Bacik: I am grateful to the Minister for accepting the principle of this amendment and I will withdraw it in the light of what he has said, although I am sorry he was not able to bring it forward in this House. None the less, I am grateful to him for accepting the principle, which is important, again given that this is a radical departure from the current procedures and will allow with-prejudice prosecution appeals. I am glad he will be ensuring a stricter safeguard for jury verdicts.
Amendment, by leave, withdrawn.
Senator Ivana Bacik: I move amendment No. 18:
In page 24, line 24, after “Court” to insert the following:
“if satisfied that the Director has given the person concerned all reasonable notice to facilitate his or her appearance and”.
Senator Ivana Bacik: I, too, thank the Minister for taking this Bill through the House. We have had some very constructive and useful debates on the provisions within it. I am particularly grateful to him for accepting my amendment on the victim statements, thus ensuring a family can give evidence on the impact of the offence upon somebody who has died following an injury and having survived for some time. That is an important principle.
I am also grateful to the Minister for accepting in principle the amendment we have just discussed on the with-prejudice prosecution appeals. I hope he reflects on some of the other amendments I tabled. Perhaps the relevant changes could be made during the Dáil debates. I am grateful to the Minister for accepting my amendments and I welcome the important new safeguards for victims in this Bill.
Criminal Procedure Bill 2009
Committee Stage
Senator Ivana Bacik: I note that amendment No. 1 is consequential on amendment No. 50 which is clearly the substantive amendment. I am concerned about the practical impact of this proposed amendment and I wish to reserve my position on it for Report Stage. I ask for the opportunity to take soundings on it among other practitioners. I speak as someone who is a practising barrister and has worked a good deal in the District Court, albeit I do not tend to practise there any more and have not done so for some years. However, I am conscious that the Minister’s stated rationale for introducing this amendment is to reduce the burden on the Office of the Director of Public Prosecutions and to make the running of the system more efficient. If I am correct, the effect of the amendment would be quite serious on the defence in terms of prolonging quite significantly the period of time before the book of evidence would be served upon them. Case law from the European Court of Human Rights and our own jurisprudence suggests there should be a presumption in favour of more information and greater disclosure to the defence in advance. This concentrates the mind of all concerned in any criminal case and it is the way the law has been going. I do not see it as a positive development that the prosecution would be given longer to prepare the book of evidence. The Minister stated that often the 42 day period is not observed and I am aware of this. However, it keeps the pressure on the DPP’s office and it gives district judges a modicum of control over the process. I am concerned this amendment would adversely affect the rights of the accused and give the district judge less control over the time period within which the prosecution must produce the book of evidence. A better approach would be to keep the current provision and allow the flexibility the district judges use in practice in terms of prolonging the period within which the book of evidence may be served.
I reserve the right to speak further and to call for a division against this measure on Report Stage. It is unfortunate such a significant provision was introduced by way of amendment and that we did not have the opportunity to comment on it on Second Stage. I made a very full speech on this Bill on Second Stage in June, as Members will be aware, and I examined the Bill in great detail at that point. However, this new amendment to the Act of 1967 makes a significant change to District Court practice and I alert other colleagues to it.
Senator Ivana Bacik: I thank the Minister for his full response. I am conscious Mr. Justice Fennelly’s report maintained the principle that the time should run from the first appearance, albeit extending the time somewhat to reflect the greater reality. However, the principle espoused by the working group was important. My concern is that principle would be eroded by the proposed amendment and it would adversely impact on the accused. I am conscious that time limits were introduced in 1999 through statute. However, to give the full picture, the reason they were introduced is that in the same Act powers to detain an accused or to adjourn an accused on remand in custody for longer periods were increased. When I began practising in the District Court there were more rigid time rules for the period during which an accused could be detained in custody between adjournment dates to the court. As I recall, the 1999 changes to insert time limits served as a balance to the increased time an accused was likely to spend in custody between court appearances.
How will the district judge make the determination that the facts do not constitute a minor offence if such a determination is to be made before any book of evidence is served? I reserve my position on this matter. Like Senator Regan, I welcomed many aspects of this Bill on Second Stage, especially Part 2 which deals with the impact of crimes on the victim and I wish to put that on the record again. I support many of the principles in the Bill but I am concerned this late amendment was inserted and that it makes a substantial change to criminal procedure in the District Court. It is an area of practice often overlooked but it is where the majority of criminal case are dealt with. We must be very careful about making such sweeping changes without being conscious of their full impact. While I will not seek a division on this point now, the Minister should ask again, albeit perhaps not just the Office of the Director of Public Prosecutions. For example, the Criminal Bar Association is made up of people who both defend and prosecute. I ask that the views of this organisation or those of the Irish Council for Civil Liberties also be sought in this regard. Although I have not had time to do this, I certainly intend to do so before Report Stage to ascertain what impact they consider this amendment is likely to have in practice on accused persons before the District Court. I am concerned there may be unforeseen practical consequences to this measure. Changing the point at which the time runs is quite significant. As I understand it, Mr. Justice Fennelly’s report did not propose that major change; it simply extended the time.
Senator Ivana Bacik: I wish to make a further brief comment. As I noted, I certainly intend to consult those at the coalface in representing people before the District Court and ask that the Minister’s office does the same. While I am conscious that the Office of the Director of Public Prosecutions is at the coalface, it only represents the prosecution and Members must also be conscious of the right of the defence. Moreover, as a final point, it strikes me that there also is a victims’ rights aspects to this issue. Forty-two days is a significant period for victims to wait and if the consequence of this section is to prolong the pre-trial period generally, it will have a highly adverse impact on victims. Any research I have undertaken on victims’ rights on any of the literature suggests delays in the process cause concern to victims. The Minister also is anxious to deal with this issue. Members must be cautious about proceeding with such a significant change without considering all the consequences and consulting other groups beyond the Director of Public Prosecutions alone. I certainly intend to do so before Report Stage.
Amendment agreed to.
Section 2, as amended, agreed to.
Section 3 agreed to.
Senator Ivana Bacik: I wish to speak generally in support of Senator Regan’s amendments. These are very useful and very welcome. They are in keeping with the needs of victims. It is clear from any research done that what victims and those who complain that they were victims of crime require is to be kept informed of the progress of an investigation, of any developments in the investigation and pre-trial process and of anything that occurs following the trial. In the Irish criminal justice system we have been very much wanting compared with the system in continental European countries where victims are entitled to much greater rights within the criminal justice process. According to research I carried out in 1998 with colleagues at Trinity College into victims of rape, which was published by the Dublin Rape Crisis Centre, rape complainants’ experience of the pre-trial and trial process was greatly improved if they had good communications with the garda involved in investigating the case, and they found they could understand the procedure much better, which greatly enhanced their overall satisfaction with the process.
Tribute must be paid to the Office of the Director of Public Prosecutions which, in recent years, has tried to do much more to keep victims informed where serious crimes have occurred, in particular, the families of victims of homicide. The office now has a specific liaison person assigned to each family where there is a charge of murder or manslaughter. I also pay tribute to the work of Advic, the organisation that supports families of victims of homicide, which has done a great deal of work with the Office of the Director of Public Prosecutions. It must also be said that in most cases that are not at such a serious level, individual investigating gardaí perform an important function in keeping victims and complainants informed of the progress of an investigation in an informal way. Much of what Senator Regan has outlined, particularly in his proposed amendment No. 5, is already the case, and many gardaí are already doing a great deal of such work. It is important, however, as Senator Regan pointed out, to formalise this to support victims’ rights.
Senator Regan is dealing with data release in a separate amendment — No. 18, I believe — but there is clearly a lack of knowledge currently. There are a couple of points on which the amendments could be improved. For example, with regard to informing a victim of his or her right to choose legal aid and assistance where a complaint is made of a serious sexual crime, this is contained in the Civil Legal Aid Act 1995. Indeed, victims have a right to separate legal representation under the Sex Offenders Act 2001 where the defence makes an application to produce evidence of prior sexual history. That amendment was introduced as a direct result of our study into the experience of rape victims. I have tabled another amendment to this Bill, No. 17, which provides for enhanced potential right of representation for victims of crime.
It is important to point out that there are already many voluntary groups working in this area. Not only are gardaí doing a great deal of work in informing and communicating with victims of crime, albeit on a relatively informal basis, but there is a large number of voluntary victim support groups around the country which provide court accompaniment services to victims. Senator Norris has spoken about the proviso “insofar as resources are available” in Senator Regan’s amendments. In the current climate, that goes without saying. However, the Minister does have a commitment to continue financial support for those voluntary groups through the Commission for the Support of Victims of Crime, and the court accompaniment provision is regarded as important.
I recently conducted research for the commission, with colleagues in Trinity College, which considered the experiences of local victim support groups and one issue raised, which is relevant to Senator Regan’s amendment No. 4, is that the groups would prefer to make contact themselves with persons who make complaints to the Garda, but that this had given rise to data protection difficulties. While gardaí are now giving information to victims about locally accessible voluntary agencies, to use Senator Regan’s words, it is not currently possible for a voluntary agency to contact a victim because the garda cannot provide the victim’s name and address. It occurs to me — Senator Regan may have dealt with this — that it would be possible to provide a form in a Garda station that victims could sign giving permission to the Garda to give their names and addresses to the support groups directly.
The Office of the Director of Public Prosecutions provides a great deal of information through leaflets, which are offered in Garda stations to people who make complaints about crimes — the first stage of interaction with the criminal justice process. We must commend that. However, it is also important that we put all these positive developments for victims in the form of a statutory requirement that victims be informed about the progress of court proceedings and that they be kept informed throughout the pre-trial, trial and post-trial periods.
There is one thing on which I disagree with Senator Regan. I note he does not confine the references in his amendments to criminal offences, but extends them to anti-social behaviour. Given the lack of operative effectiveness of anti-social behaviour orders and the fact that this is an area of law that is not quite criminal — these are civil orders, the breach of which may give rise to criminal proceedings — I am not sure it is appropriate to include the references to anti-social behaviour that crop up throughout the Senator’s amendments. Otherwise, these are important amendments, which are in keeping with the spirit of the Bill and of the Minister’s stated desire to improve the situation for victims of crime.
Senator Ivana Bacik: While the Garda Síochána performs an important task in informing victims of the progress of investigations and the pre-trial process, this process is dependent on the goodwill of individual gardaí. I am aware of the charter but the difficulty with it, as Senator Regan noted, is that its terms are rather vague and somewhat aspirational. It does not impose a requirement that actions be taken to keep victims informed, particularly in cases of more serious crimes such as rape and murder which individual gardaí outside specialist units may not have encountered previously.
The establishment of specialist units has been highly beneficial in improving practice among gardaí in their dealings with victims of crime. Despite this, we still hear of problems, particularly in rural Garda stations where a complainant may make a serious complaint which the garda on duty has not dealt with previously. Statutory requirements in this area would give greater rights to complainants and victims and remove the onus on individual gardaí to provide the type of information victims require. To that extent, Senator Regan is correct.
Senator Ivana Bacik: The Minister put a word in my mouth by suggesting I described Garda practice as haphazard. As I stated, Garda practice in dealing with victims of crime has greatly improved and victim satisfaction with the pre-trial and investigation process is greatly enhanced by the goodwill shown by many gardaí in providing information and acting as an informal liaison officer through, for example, giving personal telephone numbers and so on. I am conscious that all these practices take place, that training is provided in Templemore and that a victim liaison office has been established. I did not imply that Garda practice was haphazard but suggested it was not as structured as it could be. For example, a specialist unit is still not available in some areas where, fortunately, certain crimes may be so rare that the only garda on duty is not familiar with the complaint with which he or she is confronted.
Criminal practitioners are aware of the significance of the initial statement a complainant makes to the Garda on first arrival at the Garda station, perhaps in distress or late at night. This statement is the hook on which a trial may ultimately fall if there are difficulties with it. It is vital, therefore, that gardaí who take statements are trained in dealing with victims. Perhaps this argument goes a little beyond the scope of the amendment but it is important that victims are informed of all their rights at an early stage.
As I stated, I did not mean to suggest Garda practice is haphazard. I welcome improvements in this area. We are all conscious that, in general, the treatment of prosecution witnesses has improved significantly during the years. The Office of the Director of Public Prosecutions has made a major commitment to change. The Minister will remember a time when prosecution counsel were more or less told they could not even speak to victims or prosecution witnesses for fear of being accused of coaching them. Matters have improved greatly in this respect.
Senator Regan addressed the Minister’s point concerning the potential abuse of legislation and its potential to bring down a trial. I do not see how these amendments could give rise to such a scenario. The Minister’s point is, however, similar to one I made on amendment No. 50 regarding the need to be mindful of unforeseen consequences when legislating to make significant changes to the criminal justice system. He is correct that the inclusion of certain obligations in legislation may have consequences. In this case, I do not believe the consequences he outlined would arise because the rights provided for in the amendment are afforded to the victim or complainant and could not be used by the defence. It is nonetheless important to consider potential consequences when introducing legislation on these fundamental changes to criminal practice.
Senator Ivana Bacik: I support the amendment. As Senator Regan said, it is very clearcut and simply seeks to put into statutory form the need for the court to be conscious that the victim has confirmed his or her awareness of the risk that disclosing the identity of the offender may result in disclosing the identity of the victim. The practice is that anonymity should remain protected, even where the victim informs the court that it is his or her wish that the identity of the offender be publicly disclosed. We have seen this happen in a number of cases. It is an important amendment.
Senator Ivana Bacik: The Minister’s reference to the proposed comprehensive sexual offences Bill is very welcome. Many of us have called for a codifying of the law on sexual offences, which is what the Minister proposes. It is both welcome and long overdue. However, in the short time I have been a Member of the House I have noted — I am sure Senator Regan will have seen this too — that where we table amendments that seem pertinent to the purpose of a Minister’s Bill, this being one such amendment, we are told they are not appropriate because a major codifying legislation is to be introduced in the next year. We frequently receive this message. I can understand why the Minister says this but it seems this is not about the substantive law on sexual offences but the procedure by which the anonymity of a victim may be preserved, even in cases where he or she wishes to have the identity of the offender made public. We see this happening in the courts on an ongoing basis in cases involving sexual offences. It is important to clarify the procedure in this regard and I do not see why we must wait for major codifying legislation, although, as I said, we all will welcome the introduction of such a Bill on sexual offences.
Senator Ivana Bacik: Again, I thank the Minister for his full response but I reiterate Senator Regan’s point that this amendment is self-contained and would be a change to procedure rather than the substantive law. I welcome that the process to codify the law on sex offences is ongoing.
I should have declared my own interests, in that I am looking forward to working with the Office of the Director of Public Prosecutions at a conference that we are holding in January to examine the process by which rape trials are run and the ways in which victims are treated therein. I hope we will feed into the ongoing law reform project in which the Minister is engaged.
While the amendment deals with a procedural matter, it is of some significance to victims and worthy of acceptance on its own merits.
Amendment put.
Senator Ivana Bacik: I move amendment No. 9:
In page 6, line 31, after “person,” to insert the following:
“or any offence under the Non-Fatal Offences against the Person Act 1997”.
This is a straightforward amendment. By way of introduction to it, I should say that as I said on Second Stage, I very much welcome the provisions in Part 2 of this Bill and the necessary changes being made to the victim impact procedure introduced in the Criminal Justice Act 1993. We are all aware very obvious flaws were exposed in that Act, notably the fact there was no provision for families of victims of homicide to give statements to the court as to the impact of the crime on them.
Section 5(2) of the 1993 Act simply applies to a sexual offence, an offence involving violence or threat of violence and an offence of attempting or conspiring to do the same. Section 5(3) provided that where a court is determining the sentence, it shall, upon application by the person in respect of whom such an offence was committed, hear the evidence of the person in respect of whom the offence was committed as to the effect of the offence on such person upon being requested to do so. As AdVIC and others pointed out, this did not leave room for the families of victim of homicide. Judges in the Central Criminal Court, in particular, and in the Circuit Court in manslaughter trials were very conscious of this and gave provision to families to make victim impact statements. I am delighted the Minister has brought forward amendments to section 5 of the 1993 Act to clarify the law on victim impact statements.
All my amendments to section 4 — many of them are technical — are designed to improve the procedure for victim impact statements and to ensure it is as effective as possible for the victims of crime while being mindful of the rights of the accused. We are also aware this applies to an accused person who has been convicted of an offence where the court is determining sentence.
Amendment No. 9 extends the range of offences to which section 5 of the 1993 Act would apply. I have not made any changes to the sexual offences in section 5(2)(a). Following on from our debate earlier, I would say that it is somewhat ironic and symbolic of the state of our law on sexual offences that the definition of a sexual offence is contained in the Criminal Evidence Act 1992 rather than in a code on sexual offence. The UK Sexual Offences Act 2003 is a much better model and in which a much clearer hierarchy of sexual offence is set out. That is just a by the way comment.
Amendment No. 9 seeks to amend section 5(2)(b) of the 1993 Act and to extend the category of offences to which victim impact statements apply to offences not only involving violence or the threat of violence to a person but also to any offence under the Non-Fatal Offences Against the Person Act 1997. That is relatively confined and I do not seek to go beyond that.
I am conscious there are offences of violence not contained in that Act. The difficulty is that there offences in the 1997 which may not be covered by that global definition of an offence involving violence or the threat of violence. I am thinking of offences such as harassment, which involves the creation of fear but which may occur without an actual threat of violence, or the offences of abduction of a child in sections 16 and 17 of the 1997 Act, for example.
The Minister might be willing to see the provision for victim impact statements extended to offences of that nature within the Non-Fatal Offences Against the Person Act 1997 but they are not currently covered or at least the section is ambiguous. It may be that an offence of abduction of a child would involve the threat of violence but equally it might not if the person abducting is known to the child. It might not involve overt violence or the threat of violence.
I am simply trying to see if there is a way to broaden it out while keeping it within a relatively confined category of offences. The Non-Fatal Offences Against the Person Act seems to be a good codifying Act and the application of section 5 of the 1993 Act should apply to all the offences within that. I am interested to hear what the Minister has to say.
Senator Ivana Bacik: I am very grateful to the Minister who has put the case better than I did in saying there is a small number of offences that are not captured by the current formula in paragraph (b) but which cause emotional distress to victims. I think he accepts in principle that these could or should be covered by the victim impact procedure. I see him nodding in agreement, for which I am grateful. Therefore, I do not propose to press the amendment at this stage. I take the Minister’s point that there has not been a representation to this effect.
Happily, these are relatively rare offences but the offence of harassment, often referred to colloquially as stalking, causes immense distress to victims, even where there is not any actual threat of physical violence. The abduction of a child by parents or other persons under sections 16 and 17 equally could cause great distress without it being captured by the definition in paragraph (b). I would be delighted if the Minister could bring forward an amendment on Report Stage to try to do what I have tried to do, perhaps using a different formula or phrase he has used. Most offences under the 1997 Act are covered by the formula in place. I would not touch that formula but I am simply trying to add to it to include the very small number of extra offences which cause distress but which are not captured in the general definition of offences involving violence or a threat of violence.
I refer to amendment No. 15 in my name which specifically makes it clear there would be a more general power for the court to receive evidence of an offence other than an offence to which this section applies. This would be an alternative if we have not adequately captured the full range of offences in subsection (1)(b). I am grateful to the Minister and delighted he will bring forward an amendment on Report Stage that may extend the definition in the way I have requested.
Senator Ivana Bacik: I move amendment No. 10:
In page 7, line 14, after “by” to insert “or on behalf of”.
This is a technical amendment to section 5(3) of the 1993 Act. The original section 5 provides that, “a court shall, upon application by the person in respect of whom such offence was committed, hear the evidence of the person”. The new subsection restates the words a court shall, upon application by the person in respect of whom such offence was committed. I simply propose to insert the words “or on behalf of” to make it clear the application could be on behalf of the person, for example, by the Director of Public Prosecutions. In section 5(2)(b) the Minister has broadened the definition of “person” in respect of whom the offence was committed to include instances where a person has died, is ill or otherwise incapacitated, and a family member. This covers the gap in section 5 of the 1993 Act. I welcome the new paragraph (b) as it will make a significant difference in that it gives a right to family members to be heard at sentencing stage in homicide trials. This is a vital provision. The amendment would not take away from it.
Senator Ivana Bacik: I thank the Minister and take his point that the amendment is not necessary. I understand that in practice the application is made by counsel for the Director of Public Prosecutions rather than by directly by the victim. I take the point that the formula already captures this practice. The amendment was proposed in the interests of trying to make the procedure clearer and the legislation reflect more accurately the practice in the courts. I will not press the amendment at this stage.
Amendment, by leave, withdrawn.
Senator Ivana Bacik: I support the amendment, which clarifies the position in respect of a person with a mental disorder. I am pleased to hear the Minister state the Mental Capacity Bill is being drafted and that he intends to introduce it early next year. I am conscious that my predecessor as one of the
I put one query to the Minister, although perhaps it is something I should know and I apologise if that is the case. I am unsure why the age of 14 years is given in proposed new section 5(3)(b)(i). How does this affect the Minister’s proposed amendment? The proposed new section 5(3)(b)(i) states that where the person in respect of whom the offence was committed “is a child under the age of 14 years, the child, or his or her parent or guardian, may give evidence as to the effect of the offence concerned on that child”. I presume amendment No. 11 would only apply to a child under 14 years. However, it is unclear how this would work in conjunction with the proposed new section 5(3)(b)(i). Why is this the case? Why is it limited to a child under that age? Will this carry on into the paragraph the Minister wishes to amend with the introduction of amendment No. 11?
Senator Ivana Bacik: I move amendment No. 12:
In page 7, line 44, after “on” to insert the following:
“the person between the commission of the offence and the death of the person and on”.
The purpose of the amendment is to try to ensure every relevant aspect of the victim impact statement would be covered and that no further flaws or unforeseen gaps would emerge in the provision. I propose the new section 5(3)(b)(iv) would be altered to expand the reference to the type of evidence which may be given. This is really about the person in respect of whom the offence is committed. Where he or she has died as a result of the offence, the legislation provides that “a family member of the person may give evidence as to the effect of the offence concerned on the family members of the person who has died”.
We have identified a gap in that there may be a time lag involved. Such a situation could occur in tragic cases in which the person was initially assaulted and subsequently died as a result of the injuries received in the original assault. Therefore, there may be a time lapse between the initial assault or offence and death. We contend that in the event of such a case there should be an extra line in the legislation dealing not only with the effect of the offence concerned on the family members of the person who has died but also on that person between the commission of the offence and the death of that person.
Perhaps we should have added the phrase “where relevant” because this may not be relevant in all cases. However, it may be relevant in a manslaughter case in which a person is assaulted outside a late night chipper or bar and subsequently dies some weeks or months later. By the time the case comes to trial the family members may give the victim impact statement. However, rather than be confined to giving evidence on the effect of the assault on them, they should be able to give evidence on the effect the crime has had on their deceased relative. Such a person may have been in a coma for some weeks or months and perhaps he or she suffered injuries which shortened his or her life to the extent that the trial ended up as a trial of homicide. It may not be a homicide trial because in some cases people are not convicted of homicide offences, even where a person has died as a result of the offence. The Minister may be aware of cases in which a person is convicted of violent disorder but in which a person has died as a result of the offence. However, for reasons of evidence the person accused of the offence may only be convicted of violent disorder or other related offences. In such a case the family members may wish to give evidence which is broader than evidence about the affect of the offence on them. They may wish to give evidence about the effect on their deceased relative also. The Minister may indicate this is not necessary and that it is already covered by implication. However, we have seen from the current provision in section 5 of the 1993 Act that it is important to be clear about exactly what family members may say.
The Minister will note that amendment No. 13 seeks to deal with the Court of Criminal Appeal judgment in the O’Donoghue case. Without pre-empting that——
…I am conscious of that but there have been Court of Criminal Appeal judgments which have been critical, if only by implication, of the lack of clarity in the current procedures. We wish to ensure the procedures are as clear as possible and as comprehensive as they need to be in the interest of the victims of the offence and the family members.
Senator Ivana Bacik: I am grateful to the Minister for indicating he will consider this matter. It may be that the drafting is not the most elegant and that we should have inserted a proviso stating “where relevant”. I take the Minister’s point that there is a more general provision in the proposed section 5(3)(b)(ii) which would cover the affect of the offence on a person who died or where there is a time gap between the commission of the offence and the death from injuries.
However, as the Minister noted, it is important that family members should be able to give oral evidence to the court about the impact of the offence upon them and upon their deceased relative. I am grateful to the Minister for indicating that he will consider this amendment and I will not press it at this stage.
Amendment, by leave, withdrawn.
Senator Ivana Bacik: I move amendment No. 13:
In page 8, between lines 20 and 21, to insert the following:
“(5) 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.”.
I already have alluded to this amendment which is to deal with an issue that has arisen under the present regime and the existing section 5 of the 1993 Act. Members and the Minister will be aware of the tragic case involving the conviction of Wayne O’Donoghue. Although I do not propose to deal with the O’Donoghue case, Mrs. Justice Macken gave a judgment on it in the Court of Criminal Appeal concerning how victim impact reports would be dealt with. It is fair to state her judgment suggested that the court should warn any relatives giving a victim impact statement concerning the impact of the offence on them where the relative has died that were the relatives to go outside certain parameters, they would be in contempt of court. To a great extent, her judgment was based on what had happened in the O’Donoghue case in respect of its victim impact statement.
However, I argue that it would not be appropriate to give such a warning in a formal way. I am conscious the Minister has not suggested that such a warning would be required and it certainly has not been included within this legislation. In effect however, he has done so in a different way through the new powers in the new section 5(5)(a) as inserted by section 4 of this Bill which states: “The court may, in the interests of justice, order that information relating to the evidence given under subsection (3) or a part of it shall not be published or broadcast.” I am fully in agreement with this provision. It is the correct way to deal with the sort of scenario that may arise during a case such as the O’Donoghue one in which certain information in the victim impact statement goes beyond the evidence offered in court.
My proposed subsection, which would be inserted just before the proposed subsection (5), is intended to make clear that the court would not be obliged to give any particular direction or warning to a family member where he or she proposed to give evidence orally under subsection (3). The Minister’s subsection (5) deals adequately with the difficulty that arose in the O’Donoghue case. However, my concern is the courts still might take it on themselves to give a warning to family members and this seems inappropriate given that no other category of witness gets such a warning. It seems rather unfair to single out the next of kin of deceased persons who have been unlawfully killed to receive such a warning. While the Minister may state it is not necessary to include a subsection such as this and that it might be creating a hostage to fortune, it simply seeks to deal with some of the wording of Mrs. Justice Macken in the O’Donoghue case. It makes clear that courts are not obliged to give a warning but can deal with any difficulties that arise in the oral evidence through ordering that information given shall not be published or broadcast or that a portion of it not be published or broadcast.
Senator Ivana Bacik: I am grateful to the Minister and had anticipated what he would say on this issue. As he stated, the difficulty does not arise with the written statements which are given on notice. The difficulty in respect of the O’Donoghue case, on which he has given greater detail, arose because the oral evidence of the mother of the young boy departed from the written statement. I had at the time and continue to have immense sympathy for the mother who spoke from the heart as she was entitled to do. The difficulty is that it showed up problems in respect of lack of clarity in the victim impact procedure at the time. She clearly was unaware that a difficulty might arise and yet it did and it was unfair to the accused person to have brought up references to other information that had not been part of the trial process in which he was convicted.
However, it would be inappropriate for bereaved relatives to be given the sort of pre-emptive warning that Mrs. Justice Macken referred to in respect of contempt of court. This amendment seeks to ensure courts do not consider themselves to be obliged to give such warnings by virtue of the obiter statements of Mrs. Justice Macken in the Court of Criminal Appeal. Although I will not press this amendment at this stage, I ask the Minister, who is in a better position to so do, to ascertain whether courts are in the practice of giving such warnings. I also will check but if this is happening as a matter of routine, it would seem to be unduly burdensome on bereaved families. I cannot discern the necessity for giving such a warning in every case. While I do not believe this is taking place in every case, I seek to avoid the practice from developing.
Senator Ivana Bacik: I move amendment No. 15:
In page 10, between lines 7 and 8, to insert the following:
“(7) This section is without prejudice to the power of a court to receive evidence regarding the effect of an offence, other than an offence to which this section applies, on the person in respect of whom the offence was committed.”.
I have already referred to this amendment, which is simply a saving amendment that would insert a new subsection (7) into the new section 5 of the 1993 Act.
This would provide that the section is without prejudice to the power of the court to receive evidence regarding the effect of an offence, other than an offence to which the section applies, on the person in respect of whom the offence was committed. It makes clear that the court has a general power to receive victim impact evidence even outside the specific offences to which this section applies. The Minister has indicated he accepts amendment No. 9 in principle, which ensures that offences beyond those involving violence or the threat of violence will be covered. It may be, in that case, that this amendment is unnecessary if we can be sure the new formula captures all necessary offences. In light of what the Minister said, this adds to the discretion of the court to accept victim impact statements in respect of other offences, which we may have overlooked and which may not be captured by the Minister’s revised formula in the earlier section.
Senator Ivana Bacik: In light of that I will not press the amendment.
Amendment No. 15, by leave, withdrawn.
Section 4, as amended, agreed to.
Section 5 agreed to.
SECTION 6.
Senator Ivana Bacik: I move amendment No. 16:
In page 10, line 44, after “competent” to insert “and suitably trained”.
This is an amendment to which I made reference in my speech on Second Stage. I am very glad to see greater provision made for children to give evidence through a video link and, under section 6, through an intermediary. This is welcome but I am aware of cases where there have been logistical problems with children giving evidence by video link in sex offence cases. This is a matter for the Courts Service, which usually deals very well with this by ensuring that an appropriate person is present in the room with the child where a child is giving evidence. Clearly, the experience will be very traumatic for a child witness, particularly in cases involving offences of a violent or sexual nature. Problems have arisen where an appropriate person is not available. It is important we ensure that a person is not merely competent. I am conscious of the Minister’s provision in the new section 6(3), which states “An intermediary referred to in subsection (1) shall be appointed by the court and shall be a person who, in its opinion, is competent to act as such”. My amendment seeks to ensure the person is not only competent but suitably trained. In general, the Courts Service ensures trained personnel are used but I wish to ensure this is provided for specifically.
Senator Ivana Bacik: I am grateful to the Minister for clarifying the position but, although training is provided and the Courts Service does a very good job of ensuring those dealing with video link evidence are highly competent and well trained, it may be the case that people in this position are not suitably trained. Given the very sensitive nature of the evidence and the fact that very young children are often involved in giving evidence through the video link, it is worthwhile to specify that the persons should be not only competent but suitably trained, particularly given that Barnardos is already providing this training. It will ensure that people are suitably trained. The difficulty that may have arisen, to which I referred, is that there are not sufficient trained personnel and if someone is absent there may not be someone suitable to take their place. It is important to ensure there will always be a suitably trained person in place. That is the purpose of this amendment.
Senator Ivana Bacik: I will not press this amendment and I am grateful to the Minister for his response. There is nothing between our positions and it is a question of whether competent encompasses suitably trained. The court will be satisfied that a person is highly competent but the amendment simply stresses the need for training in this situation.
Amendment, by leave, withdrawn.
Section 6 agreed to.
NEW SECTIONS.
Senator Ivana Bacik: I move amendment No. 17:
In page 10, before section 7, but in Part 2, to insert the following new section:
7.—In an application under this section the court may make such order as it sees fit to
facilitate legal representation of a person in respect of whom an offence has been committed or a family member as appropriate, where it is appropriate to do so.
This refers to Part 2 of the Bill. I anticipate that the Minister will say this section is far too broad and that he does not see its purpose. The genesis of this amendment is research I carried out with colleagues in Trinity College Dublin for the Dublin Rape Crisis Centre in 1998. We examined the experiences of rape victims in
This is a facilitative section which would encompass that idea of legal representation. I anticipate that the Minister will state this is too broad and that he does not see at what in particular it is aimed. I suppose I am setting it out as a marker because this is something we should examine. At present, I am researching how the limited right to separate legal representation we have in rape trials and serious sexual offence trials works in practice. From that we might be able to extrapolate whether it could be extended. I tabled this amendment to highlight the principle that legal representation of victims or their family members might be envisaged without breaching the adversarial trial procedures.
I am conscious that prior to our research on rape law the Civil Legal Aid Act already provided that victims of serious sexual offences were entitled to legal aid for pre-trial advice and assistance. In other words, they could consult a solicitor and get legal aid and that is still the case. Very few victims are aware of that and avail of it. However, the separate legal representation provision for prior sexual history applications is more widely used and that is of interest. As I stated, I am putting down a marker with this amendment, which is broadly drafted, but it indicates my hope that the Minister will examine this principle and how it could be built upon in the interests of victims’ rights.
Senator Ivana Bacik: I am grateful to the Minister and I accept what he stated on the potential constitutional and conventional difficulties with full legal representation throughout the trial process. However, it is worth considering how representation rights could be expanded somewhat for victims without breaching the equality of arms principle. I am grateful to Senator Regan for pointing out the European indications that there should be greater representation for victims. It might be that the amendment could apply to post-conviction hearings which deal with sentencing.
I am also grateful to the Minister for outlining to the House the detail of the Sex Offenders Act provision allowing for separate legal representation. As I stated, that was inserted on foot of research we published in 1998 with the Dublin Rape Crisis Centre. In that research, The Legal Process and Victims of Rape, we recommended that limited right of separate legal representation be introduced. We did not recommend a fuller right. However, it is worth examining how the right to representation could be extended not to the full level, as the Minister stated, but to other hearings in the absence of the jury such as post-conviction hearings, where it would improve the trial process experience for the victim. I will not press the amendment at this stage; I will reserve my position until Report Stage, particularly given the time.
Amendment, by leave, withdrawn.
Senator Ivana Bacik: I echo the comments of Senator Regan. I have no problem with being here after
Committee StageResumed
2nd December 2009
Senator Ivana Bacik: I support Senator Regan’s amendments. Earlier, we debated other amendments concerning the treatment of victims. At that stage the Minister stated in his view it was not appropriate to place those in statutory form. I anticipate he may take the same view in respect of these amendments and I am conscious that some of the provisions are already carried out in practice, notably, that an investigating or prosecuting garda tends, where possible, to try to give victims notice of the release of accused persons on bail or following a term of imprisonment. However, it is important these measures are placed in statutory form because research carried out on the treatment of victims within the criminal justice system shows that victims wish to be kept informed and notified. I have carried out some research in this area as well. It is of particular concern to victims when an offender or alleged offender is released on bail or following sentence but the victims are not informed. There have been some very distressing situations in which victims have seen the person who assaulted them on the street but were not aware of their release from prison. It is very important to have a statutory requirement that victims are kept notified of the release or deportation of offenders. Another aspect of the amendments relates to the appointment of a victims’ representative. This puts in place what occurs in practice in many cases whereby a victim support person accompanies the victim to court. Many groups throughout the country provide court accompaniment services to victims.
Yesterday, I remarked on the Order of Business that I was part of a Joint Committee on Justice, Equality, Defence and Women’s Rights delegation that visited the new criminal courts complex on
SECTION 7.
Senator Ivana Bacik: I move amendment No. 32:
In page 11, line 11, to delete “Court of Criminal Appeal” and substitute “Supreme Court”.
This amendment is self-explanatory. In my contribution on Second Stage of the Bill I noted that the May 2007 report by the expert group on balance in the criminal law gave rise to many of the provisions made in this Bill. My amendment seeks to give effect to the report’s specific recommendation that an application be made to the Supreme Court. Section 7 deals with exceptions of the rule of double jeopardy in Part 3. This interpretation section defines “Court” as the Court of Criminal Appeal. The aforementioned report advises “that a greater rationality needs to be brought to the piecemeal development of the jurisdiction of the Court of Criminal Appeal” and recommends that appeals be brought instead to the Supreme Court.
This amendment is also appropriate in light of the new departure Part 3 makes to criminal law. Our neighbouring jurisdiction has already introduced statutory exceptions to the rule of double jeopardy but these provisions have been used only sparingly. Strong safeguards need to be inserted to ensure that persons acquitted following a trial will not be in fear of retrial other than in very rare cases.
Given the recommendations of the 2007 report, it would seem more appropriate that the DPP would apply for retrial orders under section 8 to the Supreme Court rather than the Court of Criminal Appeal.
Senator Ivana Bacik: I should have noted that the Government’s long-standing policy has been to abolish the Court of Criminal Appeal. Legislation introduced in 1995 envisaged the subsumption of the Court of Criminal Appeal into the Supreme Court but it has not yet been commenced. I do not clearly understand why the Attorney General has taken the view outlined by the Minister. I will withdraw my amendment in order to reconsider it further but the expert group’s recommendations are sensible. It is well known among practitioners that the Court of Criminal Appeal has developed its jurisdiction in a piecemeal fashion, although that is a bigger issue than the jurisdiction of that court. My amendment is in keeping with long-standing Government policy in this area.
Senator Ivana Bacik: I am grateful for the Minister’s clarification. I hope that Mrs. Justice Susan Denham’s recommendations will be taken on board. The piecemeal development of the jurisdiction of the Court of Criminal Appeal is the difficulty, largely due to the constantly shifting judges. I do not mean this as any criticism of the individual judges but different judges have sat making it hard to see a consistent set of principles evolve.
Now that the Court of Criminal Appeal has a permanent home in court 22 in the new criminal court complex hopefully there will be a new and more fixed team of judges. I should have earlier extended my compliments beyond the Courts Service to include the Minister and the Department of Justice, Equality and Law Reform on their excellent work on the building. I might criticise many aspects of public private partnerships, which have not served the State well in some areas such as regeneration projects in
Amendment, by leave, withdrawn.
Senator Ivana Bacik: I move amendment No. 33:
In page 11, line 20, after “adduced” to insert “by the prosecution”. This amendment is intended to be more precise about the definition of “new and compelling evidence” in section 7 where the provision states: “which could not, with the exercise of due diligence, have been adduced during those proceedings,”. We want to clarify the type of evidence being described. Section 8 arises only where the prosecution seeks the order for re-trial. The implied meaning is evidence that could not have been adduced by the prosecution during those proceedings.
Senator Ivana Bacik: I will not press the amendment at this stage but there is a certain
ambiguity in the wording of the section because there could be evidence which was known to the defence during the trial but “which could not, with the exercise of due diligence, have been adduced” by the prosecution.
Amendment, by leave, withdrawn.
Senator Ivana Bacik: I move amendment No. 34:
In page 11, line 26, after “concerned” to insert the following:
“, for example
This seeks to amend the definition of “new and compelling evidence”. The phrase used is “new and compelling” meaning evidence which is reliable, substantial and of a high degree of probity, in other words it implicates the person with a high degree of probability. I am not sure that is sufficiently restrictive. The review group has identified only one conviction under part 10 of the British Criminal Justice Act 2003. I should have checked to see if there had been any since 2007 when the group reported. In the case of Dunlop, which was decided in 2006, to which the group refers, an acquittal was re-opened where an accused person had made various admissions, more or less confessing his guilt in respect of a murder.
The review group recommends that any right of appeal or exception to the principle against double jeopardy should be capable of use only in exceptional cases and must be subject to sufficient safeguards. It refers also to the European Convention and to Articles 2 and 4 of the protocol which state there is a right not to be tried or punished twice and that cases should only be reopened where there is evidence of new or newly discovered facts.
According to the review group’s report, which deals with the British provisions and the sort of evidence that arises, “safeguards would have to be introduced in the form of: (a) an exacting threshold for the obligation, such as that the evidence is compelling”. The word compelling is used in the phrase “new and compelling evidence” which is welcome but the group cites the examples of
Senator Ivana Bacik: It is not envisaged in the section that just because
Senator Ivana Bacik: I disagree with Senator Regan. I am glad to see it is prospective only because there would be constitutional difficulties if it was not so. I am also glad the Minister has confirmed the safeguards that apply to section 8, even though I know we are straying into section 8. These safeguards are welcome and my amendments to section 8 are aimed at trying to clarify the safeguards and ensure that they are watertight.
When he listed the safeguards, he said the person who has been acquitted would be at liberty. We are opposed to section 16 because we are not clear what it means. The section allows the detention of a person who has been acquitted, but in respect of whom there has not yet been an application under section 8. That is like a floating detention power, because there is not any purpose specified for the detention. I may have missed something, but I have discussed this with colleagues and we cannot see the purpose of section 16. Is it to give the Garda power to investigate and interrogate somebody? Or is it simply to enable the Garda to bring an acquitted person before the court for a section 8 application? It is far too broad in the power of detention it provides. It may be unconstitutional, given that it relates to somebody who has been acquitted. It is certainly at odds with what the Minister has just said, namely, that the person in respect of whom the section 8 application has been made will be at liberty. Reading section 8, it appears such a person would be at liberty but section 16 gives a garda power prior to a section 8 application to seek that the District Court judge would authorise arrest and then detain somebody. I would like clarification on this from the Minister, although we may leave it until the debate on section 16. However, it arises in the context of section 8.
SECTION 8.
Senator Ivana Bacik: I move amendment No. 35:
In page 12, subsection (5), line 36, after “concerned” to insert the following:
“and the person may appear and be heard by the Court”.
The amendment is self explanatory. It seeks that the person in respect of whom the application is made has the right of appearance before the court. It is already implicit in subsection (5) that if the DPP has to give notice to the person concerned, it is an important safeguard in this provision that clearly it would be very wrong if this could be made ex parte without the person being informed. If that is the case and if the person has the right to be given notice and the right to legal aid under section 11, he or she should also have a right to be heard.
The Minister may say it is unnecessary because it is already clear from the terms of the section, as well as the terms of section 11, but I would like the point clarified. As I said, I welcome the Minister’s listing of the safeguards contained in the section, which is very
important. However, given the obligations under the European convention case law and given the recommendations of the review group report, it is required that we would have safeguards here.
It is a major departure from our current criminal justice procedures that a person who is acquitted can be subject to a retrial. It is very important that we ensure these are powers that can only be used sparingly and that we also provide for safeguards against any abuse of the new power in the section. Otherwise, as the Minister himself has said, the entire criminal justice system will fall into disrepute. There needs to be certainty in the criminal law for victims and for offenders. It is very important that there is also certainty for persons who have been tried and acquitted, which has always been a cornerstone of our criminal justice system. This is a departure from that. While it is a departure the merit of which in principle is recognised by everyone, it is something that must be done sparingly. It is a new power for the DPP which must be subject to very stringent safeguards and to an exacting threshold for the application.
Senator Ivana Bacik: I will withdraw the amendment in light of what the Minister has said but I would like clarification on the relationship to section 16, or at least an indication from the Minister that he will address my concern about the section given that he stated that one of the safeguards in section 8 is that the person will be at liberty in respect of this with regard to the offence of which they have been acquitted. There is provision later in the Bill where somebody is detained in respect of other matters.
Section 8 envisages that a person would be at liberty—
An Leas-Chathaoirleach: I will allow the Senator to speak on the section later.
Amendment, by leave, withdrawn.
Senator Ivana Bacik: I move amendment No. 36:
In page 12, subsection (6), line 38, after “Court” to insert the following:
“if satisfied that the Director has given the person concerned all reasonable notice to
facilitate his or her appearance and”.
This amendment provides an extra test for the court before it may proceed to hear and determine the application in the absence of the person. Given what the Minister has said about the right of the person to be heard before the court — I am glad he clarified that — it is of extreme concern that an application of this serious nature could be heard in the absence of the person.
I understand there may be cases where this is necessary. If the section 8 jurisdiction is to be used only sparingly, the section 8(6) jurisdiction must be used even more sparingly. It concerns somebody who is acquitted and innocent in law. That person is not expecting further criminal proceedings and may have moved abroad or left the jurisdiction, as he or she is entitled to having been acquitted. I accept that the court should have power to hear and determine the application in a person’s absence but it is important that the court must be satisfied it is in the interests of justice to do so. The court must also be satisfied that the Director of Public Prosecutions has given all reasonable notice to the person concerned to enable an appearance before the court.
There may be a more elegant way of putting the amendment but the director must give the person concerned all reasonable notice to facilitate their appearance. The Minister may say that is unnecessary as the director will do this anyway but it is important there is a requirement for the court to be satisfied that this is the case, as well as being satisfied that it is in the interests of justice to proceed in the absence of the person. The person is not accused and “acquitted” is the more correct term.
Amendment No. 45 is in similar terms and relates to with-prejudice prosecution appeals where many similar concerns arise. This is the procedure under section 23 where it is proposed that the DPP or Attorney General can appeal a verdict even where somebody has been acquitted on indictment after commencement of the section. There is a provision in section 23 for the appeal procedure and there is a specific notice requirement in slightly different terms in section 23(2). The test in subsection (3) allows the appeal to proceed in the absence of the person acquitted.
I have proposed an amendment that the court would have to be satisfied not just that it is in the interests of justice to proceed in the absence of the person concerned but also that the DPP has given all reasonable notice to the person concerned to facilitate an appearance. We may be dealing with somebody who has been acquitted some years previously and subsequently left the jurisdiction. It may not be possible to locate such people but it is important that the DPP would take all reasonable steps to do so before any proceeding could take place in their absence. We are dealing with acquitted persons.
Senator Ivana Bacik: I am interested in the Minister’s use of language which illustrates why we must be so careful with section 8 to ensure there are sufficient safeguards. The Minister commented on a person absconding but we are talking about a person who has been acquitted.
Senator Ivana Bacik: I know “abscond” is not a legal term but the use of the word implies
that the person would leave with the charge hanging over them in some way. This clearly deals with somebody who has been acquitted. There is no time limit on section 8 so when the section commences, somebody could be acquitted and five years down the line the DPP might move an application under the section because new evidence only arises at that point. If that is the case, it may be impossible to track down the person concerned to give notice.
There may be examples of a person deliberately not appearing because an application has been made but there may also be applications made under section 8(6) where it is not possible to locate the person. To say that this is because a person has absconded is immediately to suggest the person is guilty. We must be careful of the issue and that is the reason we have proposed the amendment. I will withdraw it now but we will press it on Report Stage.
I will propose an amendment for section 9(7) on Report Stage and I am grateful to the Minister for pointing out that oversight. Such an amendment should also have been included with the amendment to section 23.
Amendment, by leave, withdrawn.
Question proposed: “That section 8 stand part of the Bill.”
Senator Ivana Bacik: I have spoken on section 8. I welcome the safeguards and the fact the section will only operate prospectively. My amendments were designed to ensure the safeguards were watertight for the person acquitted in respect of section 8 applications and I intend to press the second amendment on Report Stage. I ask the Minister for clarification of the relationship between sections 8, 9, 16 and 23 which clearly provide for a power of detention, or so it seems, in advance of these applications being made to the courts. It is a retrospective power of detention of an acquitted person. The Minister may prefer to leave this issue aside until we deal with section 16. I have given notice that I oppose that section. I am happy if that is how the Minister wants to deal with the matter. Given that it was he who raised the issue of a person being at liberty during the section 8 application process, I thought I should raise it here.
SECTION 14.
Senator Ivana Bacik: I move amendment No. 37:
In page 18, subsection (1), lines 8 to 11, to delete all words from and including “if” in line 8 down to and including “Court” in line 11.
The amendment proposes to delete the condition for appealing from the Court of Criminal Appeal to the Supreme Court because the appeal conditions are discriminatory against the acquitted person, providing no right of appeal unless the court, the Attorney General or the Director of Public Prosecutions certifies that there are points of law of exceptional public importance. It may be like existing general law in respect of appeals from the Court of Criminal Appeal but it is discriminatory against the acquitted person. There is no reason he or she should not have the right to appeal if the Attorney General or the Director of Public Prosecutions may do so. It is unnecessary to insert this additional proviso.
Senator Ivana Bacik: I acknowledge the existing provisions are discriminatory but this is a
new provision relating to appeals specifically against a decision by the Court of Criminal
Appeal under section 10, that is, where the court grants a retrial order quashing a person’s acquittal under section 8 or section 9. We are, therefore, dealing with a new area of law because until now there was no provision for the court to quash an acquittal on this basis. A section 10 decision is definitively against the acquitted person because it is an order for a retrial. It is highly unlikely, therefore, that the Director of Public Prosecutions would seek to appeal it, yet this section provides that the appeal can be taken by either the acquitted person or the Director of Public Prosecutions but it may only take place where the Director of Public Prosecutions, the party in respect of whom the decision is of necessity made under section 10 in his or her favour, is one of the parties, yet he or she has the power to certify that an appeal shall lie to the Supreme Court when it is clear from the earlier sections that the appeal will only be taken by the acquitted person.
The Minister has said the Attorney General or the court may also certify and, in practice, in the relatively rare cases where it has arisen, the Supreme Court grants a certificate. This may even become similar to the current farcical procedure, whereby the Court of Criminal Appeal must consider the question of whether there is leave to appeal before considering the appeal where there is an appeal against conviction or sentence. The expert group pointed to the pointless nature of that process and stated it should be reviewed. Other groups have also recommended a similar review. If the Minister inserts another mechanism that will become something similar, why is he bothering with that formula? Why not state a person may appeal to the Supreme Court?
One of the Minister’s justifications in opposing my amendment to section 7 was that if he substituted the Supreme Court for the Court of Criminal Appeal, there would be no appeal beyond that where the Supreme Court granted a retrial order under section 10. That is a valid point but if I accept it, clearly an appeal should lie to the Supreme Court by the acquitted person where a section 10 order for a retrial has been made. It is not necessary to insert the certification procedure in this section, particularly when it is so lopsided, given that an appeal is also capable of being made by the Director of Public Prosecutions, yet the Director of Public Prosecutions may certify that the appeal be taken.
I propose the insertion of the words “shall lie”. Perhaps a neutral test could be inserted in the interests of justice or on a point of law. I could not have a difficulty with that but deleting the reference to the Attorney General or the Director of Public Prosecutions and having only the court certify the appeal might be a useful amendment. The Minister has acknowledged the inequality in the current provisions for the appeals mechanism in section 29 of the 1924 Act but we are dealing with a different mechanism. This is not about a clear-cut criminal appeal against conviction or sentence where the Court of Criminal Appeal has upheld a conviction and a point of law arises. The section deals with an acquitted person, against whom a retrial order has been made but where the retrial has not taken place. They are still acquitted, they are still innocent and this is a new procedure where the Court of Criminal Appeal gives the retrial order under section 10. There should therefore be an appeal from that. Perhaps this should be on a point of law or perhaps it should be a point of law of exceptional public importance but the Attorney General or the Director of Public Prosecutions should not have power to certify this. It seems an unnecessary filtering or blocking mechanism in respect of someone who was acquitted. Just because there is inequality in the law does not mean we should reproduce it here. This is especially true when we speak of acquitted persons. I intend to press this amendment on Report Stage if not now.
SECTION 14.
Debate resumed on amendment No. 37
In page 18, subsection (1), lines 8 to 11, to delete all words from and including “if” in line 8 down to and including “Court” in line 11.
— (Senator Ivana Bacik).
Senator Ivana Bacik: I will press an amendment on this matter on Report Stage. I am grateful to Senator Regan for his words of support. The debate was adjourned on this amendment as the Senator was indicating the reasons he agreed with me on it. I hope the Minister will consider changing the wording of the section in the way I propose in the amendment but, if not, that he delete the words “the Attorney General or the Director”. I would not have a problem with the court certifying that the determination involves a point of law. Senator Regan and I had spoken to the amendment but I do not believe the Minister has not responded to it.
Senator Ivana Bacik: I do not want to labour the point but my position changed slightly as I was replying to the Minister’s first response to the amendment. I indicated that I would change the wording of the amendment and will do so before Report Stage. Rather than deleting all of the words from and including “if”, I will propose the deletion of the words “the Attorney General or the Director”. I accept what the Minister said about the need for a filtering mechanism to ensure only cases involving a point of law of exceptional public importance are referred to the Supreme Court. My difficulty is with the lopsided nature of the certifying mechanism, whereby one of the parties, the Director of Public Prosecutions, has the power to certify and the other party, the acquitted person, does not. Given that section 10 decisions are always in favour of the Director of Public Prosecutions, because of the retrial order being made, it is pointless to suggest he might want to appeal. The appeal will be made by the acquitted person; it is wrong, therefore, that only the Director of Public Prosecutions should have power to certify. It should be the court alone which has that power.
The long-standing filtering mechanism, to which the Minster referred, applies to somebody who has been convicted. This relates to a new procedure where a person has been acquitted and a retrial order is made but the retrial has not yet taken place. He or she has to wait for the completion of a second trial and a conviction before being entitled to appeal. Given that there has already been one trial, in which the person concerned has been acquitted, it would be fair to have a more neutral appeals mechanism to the Supreme Court. I accept the existence of a filter but I do not accept a lopsided or unequal filter and I am grateful for the Minister’s intention to consider the matter. I call on him not only to consider my original amendment but also to consider the more limited amendment I have proposed, that is, to delete the reference to the Attorney General as a director. I do not understand why he should have the power to certify in this particular instance.
Senator Ivana Bacik: I am obliged. I withdraw the amendment on this Stage in the light of
the Minister’s comments.
Amendment, by leave, withdrawn.
Section 14 agreed to.
Section 15 agreed to.
SECTION 16.
Question proposed: “That section 16 stand part of the Bill.”
Senator Ivana Bacik: I spoke about this section already while discussing section 8. I was pleased to hear the Minister’s remarks on a person in respect of whom an application for a retrial order is being made under section 8. Presumably, this applies also to a person in respect of whom a section 9 application is being made. It is the understanding of both the Minister and I that such a person would be at liberty. This is why I was surprised on Second Stage to find in section 16 a rather open-ended arrest and detention power in respect of a person whose only qualification is that he or she has been acquitted.
This is not about a person in respect of whom a retrial order has been made under sections 8 or 9 or a with prejudice appeal order. It is simply a person who has been acquitted. Under section 16(2) a Garda superintendent or higher ranking officer may approach a District Court judge and inform him or her that he or she has certain knowledge and that something has come to his or her attention since the person was acquitted which is likely to reveal the existence of new and compelling evidence and, therefore, seek an arrest.
This flies in the face of established common law and constitutional protections of innocent persons. No application has been made to the Court of Criminal Appeal at that stage in the process. It seems there is no requirement for the Director of Public Prosecutions, DPP, to have formed a view that an acquittal has been tainted or that new and compelling evidence exists. The superintendent alone may seek this arrest warrant or authorisation and the District Court judge may then arrest the person. Once such a person is arrested under subsection (3), he or she will be taken forthwith to a Garda station and detained there for a period as authorised under section 4 of the Act of 1984 and, subject to the section, shall be dealt with as though he or she had been detained under that section. This is very murky because the section 4 detention procedure has been litigated extensively and custody regulations are used with the procedure and so on.
Generally, the section 4 procedure is used to detain a person the Garda seeks to interview. Interviews may be conducted according to certain rules, but it seems extraordinary that section 16 confers power on a garda to seek the arrest and detention of someone who has been acquitted and that such a person may then be questioned. I am unclear as to the purpose of the measure. Is it to bring such people before the courts for a section 8 or section 9 application? Is it to gather the new and compelling evidence? This would be very wrong. There is a lack of clarity because a garda may have knowledge of something that might confirm the existence of new and compelling evidence. Is the garda then entitled to go on a fishing exercise and detain someone to get information through interview and interrogation with a view to building a section 8 case against such a person? I am unclear about this matter. I oppose the section because the lack of clarity raises constitutional difficulties about the detention of someone under the section.
I refer to the ending of the detention. The legislation states detention may be ended if there are no longer reasonable grounds for suspecting a person has committed the offence in respect of which they were arrested. However, such a person would not have been arrested in respect of committing an offence but for the fact that a Garda superintendent informed a District Court judge that he or she had knowledge of new and potentially compelling evidence. The person has already been acquitted in respect of the original offence. Section 16(5)(a)(ii) suggests detention may be ended where there are no longer reasonable grounds for believing detention is necessary for the proper investigation of the relevant offence.
It seems detention is for the purpose of investigation but there must have been an investigation prior to that point for an application to be made in the first place because a garda must have some knowledge of the existence of new and compelling evidence. I am puzzled by the section. It may be the case that it is intended to be as wide as I have suggested. How else is such a detention to be terminated? A person may be held for up to 24 hours under the 1984 Act, as amended, but normally there is a requirement that such a person is charged. If someone is held under a section 4 detention, he or she is released when grounds no longer exist for detention or he or she is released and then charged. However, in this case there is no indication of what happens next. The legislation states “the detention shall be terminated forthwith”. If nothing else happens under section 16(5) once the section 4 period expires, which is 24 hours at present, the detention is terminated and a person should be released. What happens next? One presumes the Garda furnishes the DPP with any new information and the DPP makes an application to the Court of Criminal Appeal under section 8.
However, it strikes me that section 16 rides roughshod over the safeguards in section 8 if a person may be arrested and detained to gather evidence or to show there is new and compelling evidence against them for a section 8 application. What is to prevent the Garda seeking this procedure for every acquitted person or to test whether such a person would make a confession having been acquitted? The Garda could arrest, detain, determine if it can extract a confession and then it would have a second bite at the cherry. I am not impugning the Garda or suggesting the Garda would behave in this way at random. However, as legislators we must ensure safeguards exist against abuse by ill-intentioned individuals and I see no such safeguards here. Section 16 as currently drafted is too broad. Unless I have missed something I see no reason for this requirement or for such very extensive powers of arrest and detention of a person previously acquitted and in respect of whom there has been no section 8 or section 9 procedure at that stage.
It is also interesting to read the section in conjunction with section 15 which outlines the safeguards and the proviso that powers may be used only in accordance with this Bill. It lists what the Garda is not permitted to do without the consent of a person, where such a person has participated in a relevant offence in respect of which he or she has been acquitted. Quite properly, the section lists the requirement for such procedures as arrest, detention, interview and so on. However, section 16 undermines all that with the provision that such a person may be arrested as if under section 4, but without the usual stipulations of a section 4 detention, such as when a detention comes to an end a person must be charged or released. There is no provision here that such a person would be charged at that stage. He or she is simply released but the case may have been built against him or her during a detention and he or she may be subject to a section 8 or section 9 application then. Will the Minister clarify the purpose of the section and how he intends to ensure safeguards against abuse?
Senator Ivana Bacik: I thank the Minister for clarifying that the person will be at liberty pending the hearing of an application under section 8. I understood him to state that prior to section 16 being brought into operation, the Director of Public Prosecutions must have already formed a view on the existence of new and compelling evidence. However, that is not clear from the wording of the section.
I do not accept the Minister’s contention that I am making a much more general point regarding arrests and so forth, far from it. I am stating this is an exception to the normal
procedures under which gardaí form reasonable suspicions, arrest people, etc. That will already have been done in this instance in respect of persons who have been tried and acquitted. We are, therefore, dealing with a very different situation in respect of people who previously were not capable of being rearrested.
It is clear from what the Minister said that a section 16 application would be made prior to those made under either section 8 or 9. I reiterate my contention that this matter is too broadly defined in section 16, particularly in the light of the fact that there is a difficulty in the context of an investigation being carried out by the Garda and the omission of a reference to the Director of Public Prosecutions having already formed a view. There is no provision to the effect that the Director of Public Prosecutions should, prior to a senior member of the Garda making an application to the District Court, have formed a view or that a section 8 application is contemplated. Perhaps it might be useful to table an amendment in this regard and I reserve the right to introduce such an amendment on Report Stage.
I could not frame an amendment to section 16 for discussion on Committee Stage because I was not able to identify the stage at which the application should be made. Now that the Minister has clarified the position, I believe I see a way in which the section might be amended in order to make it somewhat more specific. I will, therefore, reserve my position on the matter until Report Stage.
It is clear that, under section 16(9), there is also a power of arrest in instances where retrial orders are made under section 10. When I first read the Bill, I was not sure whether it was envisaged that this would also apply following the making of a retrial order under section 10. However, section 10(1) includes a power for the court to make conditions or give directions. In such circumstances, the court can provide a warrant for arrest. Section 16 is, therefore, only relevant where somebody has been acquitted and where a retrial order has not been sought or granted. Owing to the fact that the Minister has confirmed this fact, it is all the more important that we ensure there are stringent safeguards in place in respect of the detention period, what is permissible and the necessary mechanisms which must be triggered before a person can be detained by a judge of the District Court under this section.
Senator Ivana Bacik: I said the reason I opposed the section was that I was not clear about the purpose. The Minister clarified that and I will table an amendment on Report Stage. I am grateful to him.
The Minister said that gardaí would have to put it to the acquitted person. I do not believe he is requiring that because clearly the gardaí may apply but they do not have to do so.
Senator Ivana Bacik: There might well be a situation in which the Director of Public Prosecutions makes a section 8 application without a section 16 application having been made first. Section 16 is not a necessary prerequisite for section 8. I am trying to assist the Minister in clarifying that.
Question put and agreed to.
SECTION 23.
Senator Ivana Bacik: I move amendment No. 44:
In page 24, subsection (1), line 19, before “arising” to insert the following:
“which gives to a directed verdict or which prevented the jury from considering evidence which was properly admissible or a misdirection of law to the jury”.
This amendment proposes to insert new words into section 23(1) relating to with prejudice prosecution appeals. The amendment seeks to specify what type of errors of law can be the subject of an application under section 23, again being mindful of the change in the law section 23 represents and recognising that the expert group on the balance in criminal law said that a trial that flounders of an error of law made by a trial judge cannot reasonably be described as a trial in due course of law. It argued in favour of a with prejudice right of appeal. However, it stated that the jury decision on the merits, following reception of all admissible evidence, is totally impregnable under its proposal. I agree with that because this should be an exceptional power capable of being exercised only in exceptional circumstances.
The expert group said in the summary of its report that only where the jury is directed as to its verdict, or wrongly prevented from considering admissible evidence, could the jury verdict be impugned. Using the language of the expert group report, we simply specified what type of question could be appealed under section 23, in other words, the decision in favour of the accused and only in a question of law which gives rise to a directed verdict or which prevents the jury from considering evidence which was properly admissible or a misdirection of law to the jury. We have broadened it somewhat from the balance report. I have spotted a typographical error in the amendment and apologise for that. It should state “gives rise to a directed verdict or which prevented the jury from considering evidence which was properly admissible or a misdirection of law to the jury”. It simply specifies in order to ensure that this is more watertight and that this will only be exercised in exceptional circumstances.
Senator Ivana Bacik: I am grateful that the Minister has indicated his acceptance of the
principle of my amendment. I was concerned about the lack of specificity in section 23 as it stands and I welcome that he plans to insert further qualifications or restrictions. He was probably more critical than I of the current wording of the section. This kind of with-prejudice appeal represents a radical departure, especially in the context of jury verdicts. Jury trials have long been a vital part of our criminal justice system and it is important that we minimise any impacts that would undermine them. I withdraw my amendment in light of the Minister’s acceptance that the section as it stands does not strike the correct balance.
Amendment, by leave, withdrawn.
Amendment No. 45 not moved.
Section 23 agreed to.
Sections 24 to 26, inclusive, agreed to.
NEW SECTION.
Government amendment No. 46:
In page 27, before section 27, to insert the following new section:
“27. — Subsection 16 of section 3 of the Criminal Justice Act 1994 is amended, in paragraph (f), by the substitution of the following subparagraph for subparagraph (i):
“(i) (I) when the defendant is acquitted on all counts, or (II) where the provisions of section 23 of the Criminal Procedure Act 2009 apply to the proceedings—
(A) when the time period for an appeal under that section has expired and no appeal
has been made,
(B) where an appeal has been made but no re-trial is ordered, at the conclusion of
the appeal proceedings under the section, or
(C) where a re-trial has been ordered, at the conclusion of the re-trial;”.”.
Senator Ivana Bacik: I am happy to support the amendment in principle. I accept that it is a significant departure but it causes great distress to victims, and particularly to their families, when the accused raises provocation as a defence and the family feels that the character of their deceased relative has been impugned without any possibility of a response. Many years ago I spoke about this to Advocates for Victims of Homicide, AdVIC. It has called for such an amendment. It is also a recommendation of the expert group as the Minister said.
I want to raise two points, however, to improve the wording of the amendment. They are almost typographical errors. Subsection (b) states: “notwithstanding section 1(f), the person may be called as a witness and be asked, and the prosecution may ask any other witness,”. Should that not be “or” the prosecution or “and/or”? If the accused is not taking the stand the prosecution can ask any other witness, as an alternative. The same is true if the accused does take the stand. The present phrase suggests that the prosecution can ask another witness only where the accused has been called as a witness. Will the Minister please check that point?
Subparagraph (ii) of subsection (b) reads “would show that the person in respect of whom the offence was alleged to have been committed is of good character”. I would say “is or was of good character” because the person may be deceased. In my example the character of a deceased person has been impugned, for example, where the defence alleges provocation in a murder trial. In that case “the person in respect of whom the offence was alleged to have been committed” is deceased but his or her character is being attacked. That is the sort of case the Minister seeks to address here. The phrase “is of good character” implies that it refers only to someone who is alive but is incapacitated, which is the other circumstance covered by the legislation. Will the Minister consider these two small changes to improve the wording of this provision?
Senator Ivana Bacik: In response to the Minister’s point about disparity between defence
and State, it goes without saying that the might of the State is weighed against the defence. That has always been recognised in the jurisprudence of the European Court of Human Rights and in our Constitution and the due course of law guarantee. It is important to bear that in mind. This provision is not unduly onerous but I am glad to see there is a provision in the Minister’s amendment which will allow the defence to bring in evidence of this nature without the necessity to seek notice. In my experience the necessity for such evidence often arises in the course of the trial and therefore it would have been impossible to give the requisite notice.
Amendment agreed to.
Progress reported; Committee to sit again.
Senator Ivana Bacik: I am very conscious that there has been a long body of case law on the issue of presentation of evidence, and I declare an interest as I acted in one case that went to the High Court on this. I welcome the attempt to put certainty in the law, but this may be difficult to operate in practice.
I wish to make suggestions to improve the procedure outlined by the Minister in the new section 35. The time of seven days outlined in the new section 35(4) for the defence to serve this notice in writing on the prosecution, indicating what they propose to do with the property, is simply too short. I do not think it will work in practice. The prosecution can serve the prosecution notice about the property at any time at least 23 days prior to the start of the trial. That could occur right at the beginning of the criminal proceedings. In my experience, this arises where somebody reports a crime to the Garda Síochána, gardaí investigate and find stolen property, they arrest an accused and the owner then seeks the return of his or her property. This might happen at a very early date, possibly even prior to the accused’s first appearance before the District Court if that person is on bail. It may be that the accused will not even have instructed a solicitor or been granted legal aid. Where the owner is seeking the return of the goods in that sort of case and the gardaí wish to dispose of the property having taken their photographs, they can serve the prosecution notice on the accused because that is allowed in the new section 35(2), but the defence — just the accused person at this stage — will only have seven days to respond.
The new section 35(5) provides that the defence shall, not later than seven days after service of that notice, serve the defence report of evidence on the prosecution. That seems to be too tight to be workable in a situation where an accused person may not have been assigned legal aid. It would be better to have longer time limits in those particular subsections. I do not want to overstate this and I can table amendments on Report Stage. However, I have been involved in cases like this and I know in practice that it may be very difficult for the defence to comply with this. I do not see a proviso saying that all this could be done over a longer period. The real risk is that the gardaí involved will dispose of the property if they have not heard from the defence. We then have the whole Braddish v. DPP and Dunne v. DPP scenario all over again where the defence may apply to the courts claiming that the Garda Síochána should have retained the property. I just seek to make the provision more workable.
Senator Ivana Bacik: I do not think the 23 days is stringent. The prosecution must do it at least 23 days before the trial, but at any point in the months preceding the trial. It is a tight onus on the defence or the defence solicitors who are increasingly being given these time limits for the disclosure of evidence. In that context we need to look at extending the period for the service of the defence notices.
Senator Ivana Bacik: Certainly, but there is a balance and I do not think it is being struck here.
Amendment agreed to.
Second Stage
Senator Ivana Bacik: I thank Senator Mullen for sharing time. I welcome the Minister and
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
I refer to the balance in criminal law review group report. As the Minister said, it is that
The Director of Public Prosecution’s application to the court can be in the absence of an
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
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
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
