Tuesday 27 September 2016

Bill a major step but more action needed to protect victims

Maria McDonald

Published 18/07/2015 | 02:30

Justice Minister Frances Fitzgerald
Justice Minister Frances Fitzgerald

ThE Criminal Justice (Victims of Crime) Bill 2015 has just been published by the Department of Justice.

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Enactment of legislation in Ireland is required by November on foot of the passing of the EU Directive on Victims' Rights.

This requires that all EU member states must provide minimum rights, supports and protections for all victims of crime, regardless of their residential status.

Victims' rights groups, including the Victims' Rights Alliance (VRA) has welcomed the publication of the Bill. However, it must be strengthened if it is to comply with the EU victims directive.

Justice Minister Frances Fitzgerald has been engaging with the VRA and other victims' groups over the past year.

This consultation process resulted in the inclusion of restorative justice, grievance procedures and an obligation to compile and store data by relevant organisations.

Victims will be able to access their right to information, support and protection even where the offender has not been identified and where no complaint has been made to the gardaí.

The definition of a victim includes a family member who has lost a loved one due to a criminal offence.

The legislation entitles all victims of crime to make a personal impact statement.

Previously, only some victims - such as victims of sexual offences and victims of violence - were entitled to make a victim impact statement.

Although the Bill is a great starting point, it will need to be strengthened if it is to comply fully with EU law.

Victims will be entitled to bring a legal representative and a person of their choice with them during the course of interviews during criminal investigations.

Limiting this right should only be done in exceptional circumstances and a victim should then be entitled to choose another person of their choice to attend with them.

Under the legislation, the gardaí will be required to individually assess all victims of crime to ascertain whether they need special protection measures.

These can include measures for the physical protection of the victim and the use of testimonial aids in court, such as video link and the use of screens.

In effect, the gardaí will be required to engage in a risk assessment of all victims of crime.

Guidelines and training will need to be provided to ensure that the assessment is not implemented in an ad-hoc and inconsistent manner.

Victims have a right to access victim support services, including counselling and shelters, free of charge for a period before, during and after any criminal investigation.

The gardaí will also be required to facilitate the referral of victims to victim support services.

The Bill outlines a three-step test for referral. For example, the gardaí will only refer a victim if they believe a victim should benefit from support services.

This test limits a victim's access to support services under EU law and it will need to be reconsidered.

The Bill fails to legislate for the right of victims not to be questioned unnecessarily about their private life when it is not related to the criminal offence.

In addition, it must be made clear that the legislation will apply to all victims of crime in Ireland, regardless of their residential status.

The legislation is a major step in protecting victims of crime in Ireland but more needs to be done to ensure that victims can access their rights in practice.

The use of intermediaries in court was first permitted under the Criminal Evidence Act 1992.

Intermediaries are used where the interests of justice require that any questions to a witness be put through an intermediary.

There is no panel of trained intermediaries in Ireland. There are no DPP guidelines on the use of intermediaries, nor are they being used in the courts as intended.

The use of intermediaries is also provided for under this legislation. In order for the Bill to be effective in practice, it is essential that additional guidelines and measures are implemented.

The publication of the Criminal Justice (Victims of Crimes) Bill 2015 is a major step in legislating for victims' rights in Ireland.

However, it is clear that additional resources will need to be provided to victim support services and the gardaí if victims of crime, and their families, are to be truly protected and supported as they engage with the criminal justice system.

÷ Barrister Maria McDonald is a founding member and coordinator of the Victims' Rights Alliance

Irish Independent

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