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Criminal Justice (Victims of Crime) Bill 2016
Second Stage Speech – Dáil Éireann
Tánaiste and Minister for Justice and Equality,
Frances Fitzgerald T.D.
1 March, 2017
A Cheann Comhairle,
The Criminal Justice (Victims of Crime) Bill 2016 is a groundbreaking piece of legislation which I am pleased to be introducing to the House tonight.
It forms part of a series of legislative reforms I am advancing to improve victims’ rights and their experience of the criminal justice system.
Victims should be at the heart of the criminal justice system.
This Bill , the Domestic Violence Bill, which compliments this legislation, and the Mediation Bill will be taken in these Houses this week. All three are Programme for Government Commitments.
These three Bills introduce major and wide-ranging reforms that will widen access to justice in this country and ensure the justice system is on the side of the victim and the vulnerable.
My Department has now published 12 Bills since the Government was formed in May. Exactly one year on from last February’s election, it is important to reflect on the legislative agenda we have progressed as a House, despite the new challenges of the 32nd Dail.
I have said in this House before that the needs of victims of crime have sometimes been overshadowed by a focus on apprehending and prosecuting perpetrators. We must ensure that our response to criminal behaviour is a comprehensive one while putting the needs of victims at the forefront.
It is time that the rights of victims are given full recognition in the criminal justice system. This Bill will introduce, for the first time, statutory rights for victims of crime, marking a fundamental change in the approach to criminal law in Ireland.
The main purpose of the Bill is to give effect to provisions of Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime.
Under the Bill a victim of a crime will have the right to receive information, in clear and concise language on:
• the criminal justice system and the range of services and entitlements available to victims;
• the progress of the investigation and any court proceedings; and
• the release, including temporary release, or escape from custody of an offender who is serving a sentence of imprisonment.
Victims will also have:
• the right to an individual assessment to establish measures that may be necessary to protect them from secondary or repeat victimisation, intimidation or retaliation; and
• the right to request a review of a decision by the authorities not to initiate a prosecution in their case.
Before outlining the content of the Bill in more detail I would like to provide some context for the legislation.
Victims of crime do not always have a formal role in the criminal justice process in Ireland. Victims are not generally legally represented. Victims, if they are not also witnesses, may have little access to information and little contact with the agencies tasked with bringing the offender to justice.
The criminal justice system is a complex system of law and procedure which can be confusing and difficult to navigate even for those familiar with its workings. This can be doubly challenging for the victim of a crime, who may be vulnerable and traumatised by the crime itself, and isolated and unguided as they attempt to engage with criminal justice agencies and systems. The central aim of this Bill is to go some way towards addressing this deficit by providing victims with information, support and assistance across all their interactions with criminal justice agencies.
The vital work being done by the wide range of non-governmental organisations in continuing to provide supports to victims of crime is something which I wish to warmly acknowledge this evening. These organisations are providing essential support and information to victims of crime, including emotional support, court accompaniment, accompaniment to Garda interviews, accompaniment to sexual assault treatment units, counselling and referral to other services. They are therefore providing a hugely valuable source of support to people at what often can be a traumatic time in their lives.
In terms of funding, I was very pleased to be able to secure a 17% increase in the budget available for services to victims of crime this year. This is enabling my Department to provide funding, which is administered by the Victims of Crime office, totalling €1.7 million to 58 organisations supporting victims of crime in 2017.
I have also engaged closely with victims’ groups in developing this Bill and I have met them on a number of occasions.
On the State side, a Victims Services Group, chaired by my Department, has been in place since July 2015. It co-ordinates the Criminal Justice agencies’ work in preparing for and progressing towards the full implementation of the Directive.
I now propose to outline, in more detail, the content of the Bill, which contains 30 sections and largely reflects the EU Directive on Victims of Crime.
Part 1 of the Bill contains a number of standard provisions concerning the short title, commencement and expenses. In addition, section 2 defines a range of terms used in the Bill, some included for clarity, and some more notable definitions which I’d like to mention. The Bill defines “Victim” as any person “who has suffered harm, including physical, mental or emotional harm or economic loss, which was directly caused by an offence”. This is a broad and inclusive definition which reflects the victim-centred nature of this Bill and the EU Directive. The victim is not defined in relation to the offence or the offender but rather by the effect which the crime has had on the victim. The victim benefits from the rights provided under the Bill, whether or not a formal complaint is made or a suspect has been identified.
Section 2 also defines certain terms used in the Bill such as “protection measure”, “special measure” and “significant developments” in so far as it relates to the investigation of an offence, and I will discuss these terms in the context of the provisions in which they arise.
Where a victim has died as a result of an offence, section 2 provides that the victim’s family members may avail of the rights provided in the Bill. Section 3 allows the competent authorities to limit the number of family members in certain circumstances.
Section 4 provides that the rights in the Bill shall not apply to criminal proceedings which are instituted before the commencement of the provisions concerned. This will ensure that criminal proceedings already underway are not affected.
Part 2 of the Bill addresses a very important aspect of the Bill: the victim’s right to information about his or her case.
Section 6 sets out a wide range of information which victims must receive when they first make contact with the Gardaí, or in certain cases, the Garda Síochána Ombudsman Commission. Victims will be entitled to receive detailed information on the criminal justice process and the role of a victim within that process. This will include information on the procedure for making a complaint, where to direct enquiries and the circumstances in which they may be able to obtain protection measures or assistance by way of interpretation, translation, legal aid, compensation or expenses.
The section provides that a victim may bring someone with them when first contacting the Gardaí about an offence, including a legal representative if they wish.
I have already highlighted the vital services provided to victims of crime by victim support groups. This section ensures that victims will be offered information about victim support services and may, with consent, be referred to such services.
Section 7 then outlines the information which a victim will receive, if they wish to receive it, to keep them informed of the progress of their case through the criminal justice process. Information is available from the time of the initial complaint, through the investigation and trial and up until the offender has completed any custodial sentence imposed as a result of the offence. The information available under this section is quite extensive and I will not go through it all but just mention some notable elements.
Victims must be given information on any significant developments in the investigation including the arrest, charging or release on bail of a suspect, and on any trial and any sentence imposed on an offender. Where an offender is imprisoned or detained as a result of the offence, the victim will be entitled to receive information from the Irish Prison Service, the Central Mental Hospital or a children detention school, in respect of any release, including temporary release, or escape from custody by the offender.
A particularly important right under section 7 is the victim’s right be to informed when a decision is made to end an investigation or not to prosecute an offender and to be given reasons for that decision. Sections 8 and 9 provide that, in the case of a decision not to prosecute, the victim will be entitled to seek a review of that decision. This measure is intended to help victims to better understand the reasons why in some cases it is not always possible to get justice.
Section 10 provides that information, otherwise required under the Bill, does not have to be disclosed if it could interfere with an investigation or future criminal proceedings or endanger any person or the security of the State.
Part 3 of the Bill concerns the protection of victims during investigations and criminal proceedings.
When a victim of crime is making a formal complaint, under section 11 of the Bill, he or she must be given a written acknowledgment of that complaint in a language which he or she can understand. The victim may also be accompanied by a person of their choice, including a legal representative.
Falling victim to a crime when you are away from home can be particularly difficult and there are a number of specific rights to address the needs of victims of crime in Member States other than where they live. Under section 12, if an Irish resident makes a complaint in relation to an offence which took place in another Member State, the Gardaí must forward the complaint without delay to the Member State in which the offence took place. In addition, section 13 provides that victims of crime in Ireland who are resident in another EU Member State may have their statements taken immediately.
Section 13 also sets out other measures for the protection of victims during interviews. These include carrying out interviews with victims as soon as possible and only where necessary; limiting medical examinations to those strictly necessary; and providing that victims may be accompanied during interviews, including by a legal representative.
As I have already mentioned, this is a victim-centred Bill. As such, it focuses individually on the victim and his or her needs. Sections 14 to 18 of the Bill make provision for the assessment of victims and the implementation of protection and special measures identified by the assessment. Each victim will be individually assessed to establish any particular protection needs he she may have and if they would benefit from any special measures during the course of the criminal proceedings. This assessment will take into account the nature and circumstances of the crime but the focus is on the personal needs of the victim.
The protection needs which may be identified include advice on personal safety and the protection of property, advice on safety orders and barring orders and applications to remand an offender in custody or to seek conditions on bail. Special measures available during an investigation may include carrying out interviews in specially adapted premises, by persons specially trained, by the same person or by a person of the same sex.
Where an assessment identifies special measures which the victim may benefit from during court proceedings, these must be reported to the prosecutor. The prosecutor must take that assessment report into account in determining whether to apply to the Court for special measures such as allowing the victim to give evidence via live television link, through an intermediary or from behind a screen.
The Bill recognises that child victims of crime are particularly vulnerable and consequently presumes that they have protection needs under section 14. In determining the special measures which they may benefit from, the Gardaí must have regard to the best interests of the child and must take the views of the child and his or her parents into account. They must also ensure, under section 17, that a child victim is accompanied by an appropriate adult during interviews and court proceedings. On this point, I note that the Children’s Rights Alliance have, in recent days, called for provision to be made to consider the child’s views under this section. I will look at bringing forward an appropriate amendment at Committee Stage in this regard.
Two other special measures are available to victims during criminal proceedings. Section 19 provides a power for the court to exclude the public where necessary and section 20 provides that the court may prevent unnecessary questioning regarding a victim’s private life.
Sections 21 to 23 make provision for the requirements of the EU Directive relating to communication, translation and interpretation. All communications with a victim must also be in simple and accessible language and take account of the victim’s ability to understand and be understood.
Part 4 of the Bill amends a number of other Acts.
Section 25 amends Part III of the Criminal Evidence Act 1992 extending and supplementing provisions in that Act. These amendments are aimed at rendering the criminal justice system less formal and more responsive to the needs of victims of crime, to comply with the EU Directive.
Existing provisions which facilitate evidence being given through live television link or through an intermediary are extended to all victims, or in the case of intermediaries to all child victims, where the court considers it necessary to protect the victim from secondary and repeat victimisation, intimidation or retaliation.
New provisions are introduced to facilitate a victim giving evidence from behind a screen or other device so that the victim cannot see the accused and to prohibit the judge and lawyers from wearing wigs and gowns when a child victim is giving evidence.
The Criminal Justice Act 1993 is amended to extend the right to make victim impact statements to victims of all offences, or in certain circumstances their family members.
The Bill also amends the Courts Service Act 1998 to require the Courts Service to make arrangements for the separation of victims and their families from offenders and their families in the course of criminal proceedings and, in any new court buildings, to provide separate waiting areas for victims.
I think the House will agree that the provisions of this Bill are a significant step forward in recognising the obstacles faced by victims of crime in the criminal justice system and providing victims with the information and support to help them through an undoubtedly difficult process.
Before I finish, I would like to thank all of the criminal justice agencies who have a role in providing services to victims under this Bill for their assistance in developing these proposals and implementing many of these rights on a non-statutory basis since the EU Directive came into force in November 2015. I would also like to acknowledge and thank the many victim support groups and community groups who have contributed to the development of this Bill over a number of years.
Unfortunately, this Bill cannot prevent the terrible harm and trauma which many victims suffer as a result of the crimes perpetrated against them. But what I hope, and believe, this Bill will do, is prevent further unnecessary trauma and victimisation arising from a victim’s interaction with the criminal justice system.
With that aim, I commend this Bill to the House.