CCPE-BU(2017)1
Strasbourg, 14 February 2017
CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS (CCPE)
Questionnaire for the preparation of the CCPE Opinion No. 12 (2017):
“The rights of victims, witnesses and vulnerable persons”
In your answers, please do not send extracts of your legislation but describe the situation in brief and concise manner, including briefly what is happening in practice.
Introduction
The Opinion deals, in general, with the rights of victims, witnesses and vulnerable persons within the framework of criminal procedure, and, in particular, with the role of prosecutors in protecting these rights.
The first section deals with the definition of victims, witnesses and vulnerable persons in the way in which it exists in different member states of the Council of Europe. The second section deals with their rights. The third section concerns the role of prosecutors in protecting these rights. This section, due to the mandate of the CCPE, is the key section of the Opinion.
The Bureau and the Secretariat of the CCPE would like to strongly thank you for your cooperation and contributions.
1. Definitions
1.1 Is there in your country a definition of a victim or a witness of crime? If yes, is it established in the law or other legal instruments?
Not as at the date of writing. However, the definition of a Victim is enshrined in the EU Victim’s directive which has been used for the basis for the definition of Victim of Crime in the Criminal Justice (Victims of Crime) Bill 2016 (“the Victims Bill”), which is due to be enacted into national law by end July 2017.
“Witness” is not formally defined in any Irish legislation but has been interpreted in caselaw as “one who is a spectator of an incident or one who is present at an incident”: (see In re Gibson, dec’d cited in the High Court in Dundalk AFC v FAI National League ([1949] P. 434 at p. 436; Pearce J)).
1.2 Are there in your country special regimes for victims of certain types of crimes, for example, domestic violence, sexual abuse, trafficking in human beings? If yes, can you list them?
See replies to section 2 below
1.3 Is there in your country a definition of vulnerable persons, either in general sense, or particularly within the framework of criminal procedure? If yes, is it established in the law or other legal instruments?
No, at the time of writing there is no such definition. Again it is intended that this will be contained in the Victims Bill.
2. The rights of victims, witnesses and vulnerable persons
2.1 Are there in your country specific rights of victims, witnesses and vulnerable persons within the framework of criminal procedure, in addition to human rights in general?
Victims’ Rights are recognised as falling into 3 broad categories:
1. Services or Welfare rights,
2. Procedural rights,
3. Participation rights.
1 Services/Welfare Rights
Under services/ welfare rights the state funds (in whole or in part) the provision of counselling, support, information & compensation to victims:
Counselling/Support: In addition to a large number of voluntary/NGO organisations (Rape Crisis Centres/Women’s refuges) who are substantially funded by the State to provide counselling services, court accompaniment services, as well as information and advice about the criminal justice process, the Health Service Executive provides a National Counselling Service (NCS). This service, established in September 2000, was developed largely in response to clerical abuse scandals. They too offered a free counselling and psychotherapy service and importantly these services were made available in all Health Service Executive (HSE) regions. Their services were directed to adults who had experienced trauma and abuse in childhood with priority given to adult survivors of institutional abuse. The provision of such services has become an established feature of the Irish States’ response to victims of crime, but for the most part, welfare rights fall outside the scope of criminal procedure.
2 Procedural Rights:
Procedural rights, or protections, may be viewed as occupying the ground between welfare rights and full participation rights. Procedural rights have developed within the context of an increasing focus on particular types of victims, most especially those deemed to be ‘vulnerable’.
Right to Information: Non-statutory rights include the right to be informed of the decision made to prosecute, for what offences, and when and where the trial is to take place. These are set down in the Guidelines for Prosecutors, along with all other rights and responsibilities that the prosecutor has to the Victim (Chapter 12). See Appendix 1.
Legal Advice and Assistance (although, importantly not representation) is available through the Legal Aid Advice and Assistance provisions – s.26(3)(A) of the Civil Legal Aid Act 1995 which provides that legal advice will be made available (no means test or payment of contribution required) to complainants in prosecutions for certain sexual offences who wish to seek such advice. There is no official data available detailing how often this service was used. However, anecdotally the numbers are thought to be relatively small.
Procedural protections in the context of giving evidence: The Criminal Evidence Act of 1992, as amended, introduced a number of important provisions including Section 13 which sought to make it easier for witnesses to give evidence in cases concerning violence, sexual offences, human trafficking or child pornography. In such cases, and where the witness is under 18 years of age or suffering from an intellectual disability, the evidence may be given by the witness through a live television link, whether from within or outside the State, unless the court sees a good reason to the contrary. The provision also allows other witnesses in such cases to do so provided the court agrees. The legislation also abolished the requirement for a child to give sworn testimony (replacing the same with a test, determined by the trial judge as to the child’s ability to give an intelligible account). Other formalities of the court process which might be distressing to a child, such as the wearing of wigs and gowns, were also dispensed with).
These protections were extended to a wider group of vulnerable witnesses by Section 39 of the Criminal Justice Act 1999, which allows all witnesses who are in fear or subject to intimidation to give evidence, with the leave of the court, by means of live television link.
Section 16(1)(b) of the Criminal Evidence Act 1992 allows for video–recorded statements to be admissible as evidence in chief in certain limited circumstances. This proved to be resource intensive requiring the necessary facilities for the taking of such statements, the training of the specialist interviewers and a need to develop Practice Guidelines. See also reply to 2.6 below.
Similar rights to use videolink facilities and use intermediaries were included the Criminal Evidence Act 1992. While the provisions in relation to the use of intermediaries have not yet commenced, this will be amended in the context of the Victims Bill. The recent construction of a new Criminal Courts Complex in Dublin (with separate entrance/exit, children’s evidence suite, safe waiting rooms and modern technological capacity of the new courtrooms, have also helped transform the experience of victims and witnesses giving evidence, whether live, through television link or from a remote location.
Compensation: A right to compensation is provided in both statutory and non-statutory form. The non-statutory Criminal Injuries Compensation Tribunal (since 1974) provides only for “out of pocket” compensation of those who suffer physical injury, as a result of violent crime, and does not cover those in a domestic violence situation. The statutory powers under s.6 of the Criminal Justice Act 1993, allow a trial judge, in the event of a finding of guilt, discretion to make an order for the compensation of a victim which may not exceed, at the Judge’s discretion, the amount that a Victim might recover in a civil action. Recovery of this money is a matter for the Victim to monitor.
3 Participation Rights
Currently in Ireland there are two very important areas where legislative provisions allow the victim (or the deceased victim’s family) to directly participate in the criminal process.
(a) Limited Separate Legal Representation: The first of these significant ‘participation’ rights arises within a very narrowly defined and restricted circumstance. Where an accused standing trial in respect of a sexual offence wishes to ask a question or introduce evidence relating to the complainant’s sexual experience they need the leave of the judge to do so ( s.3 of the Criminal Law (Rape) Act 1990. ss.34 & 35 of the Sex Offenders Act 2001, provides that the defence must give notice of their intention to make an application to introduce such evidence; and further provides that the complainant is entitled to separate legal representation for the purpose of the defence application, which is made in the absence of the jury. This legal representation is provided free of charge by the Legal Aid Board.
(b) Victim Impact Statements: Under s.5 of the Criminal Justice Act 1993, the Victim has the right to make a statement in respect of the effect that a crime has had on them in respect of offences of violence, certain more serious sexual offences, and homicide.
As noted by our leading author on sentencing: “Developments such as [Victim Impact Statements] have led to some recalibration in the scales of justice. How much further they can be tilted in favour of victims without unduly diluting the rights of offenders looks set to become one of the more difficult questions to be faced over the coming years”. (O’Malley, 2009, P.18)
2.2 If yes, are they established in the law or other legal instruments?
As outlined at 2.1.
2.3 Please enumerate briefly these specific rights (e.g. the rights to protection, to be treated fairly and with dignity, to be notified, to be present and to be heard at court proceedings, to seek restitution, to the respect of privacy, to make a complaint about infringement or denial of their rights).
As outlined at 2.1 and see also Appendix 1.
2.4 How are victims, witnesses and vulnerable persons informed of their rights? Are there any formal arrangements or informal mechanisms, free access to relevant information and databases etc.?
At the time of writing, there is no formal right in this regard. Instead it relies on good practice under the Victims’ Charter, as implemented inter alia by An Garda Siochana (National Police) along with other investigative agencies and the Office of the Director of Public Prosecutions. The Legal Aid Board (with statutory responsibilities to victims in relation to advice and assistance and legal representation) produce information leaflets outlining their services to victims.
2.5 What kind of penalties and sanctions are established for violation of these rights?
None, as at the time of writing.
2.6 Are there in your country specific rights of vulnerable persons due to their age (children, elderly people) or disability (physical or mental), either as victims or as witnesses?
Yes. The Criminal Evidence Act 1992 (as amended) provides a number of protections to young/vulnerable victims, in particular the manner in which their evidence is adduced, for example, s.16 (1) (b) of the Act provides for the video recording of evidence in chief, avoiding the need for such victims to give live testimony viva voce, in the presence of the accused. The provisions of the 1992 Act are subject to imminent amendment by the Criminal Law (Sexual Offences) Act 2017 (enacted, but not yet at the time of writing commenced).
see: http://www.irishstatutebook.ie/eli/2017/act/2/section/37/enacted/en/html#sec37
and the Victims of Crime Bill.
See also reply to 2.1 above.
2.7 When a decision in criminal matters is likely to affect the rights or the situation of a vulnerable person, is it brought to the attention of other bodies dealing with the rights of that person (e.g. a measure prohibiting contact with his wife for a husband in the event of domestic violence brought to the attention of the court responsible for ruling on the custody of children)?
Such matters are brought to the attention of relevant bodies. However, this is outside of the remit of the Prosecutor. For example Tusla (The Child & Family Agency) would be informed of child protection concerns in the context of a domestic violence situation. Responsibilities of sharing information on suspected child sexual abuse are mandated by Children First Guidelines.
2.8 Can such vulnerable persons bear testimony alone or only following authorisation by their legal representatives, and in this latter case, in what conditions?
Within the Irish system, as outlined above, victims & witnesses have limited legal representation. Such legal representation does not extend to assessments of capacity to give evidence. The question of a witness’ capacity to give evidence in the context of a criminal trial is determined by the trial Judge (which may be informed by specialist medical evidence as well as judicial examination of the witness). Legislative provisions under the Criminal Evidence Act 1992 (see s. 27) assist in this regard, permitting evidence to be received from a person of any age with a ‘mental handicap’ in any criminal proceedings, otherwise than on oath or affirmation, if the court (Judge) is satisfied that he or she is capable of giving an intelligible account of events relevant to those proceedings.
2.9 Is the refusal to bear testimony admissible, for instance as regards children or mentally disabled persons? In what conditions?
As outlined above, if deemed ‘an intelligible account’, such evidence is admissible.
2.10 Who proceeds to the evaluation of vulnerable persons and how the risk is assessed? Can the vulnerable person play a role in assessing such a risk? Which protective measures may be adopted and by whom?
As outlined above at 2.8
2.11 Are there, in your country, any special procedures that allow testimony to be filmed, recorded and/or given from behind a screen? If so, in what circumstances can this occur?
Yes. See earlier replies above, the Criminal Evidence Act 1992, as amended and as augmented by the Criminal Law (Sexual Offences) Act 2017 & the Victims of Crime Bill.
2.12 How is the prevention of repeated victimisation ensured?
See previous replies above (Welfare rights, procedural rights, participation rights (including special measures).
2.13 Are the rights of victims, witnesses and vulnerable persons foreseen only for nationals or also for foreigners? Under which circumstances?
Generally speaking victims’ rights are afforded without reference to national status. However, the EU Victims Directive promotes a number of specific protective rights to members of the EU.
3. Role of prosecutors in protecting the rights of victims, witnesses and vulnerable persons
3.1 How are the rights of victims, witnesses and vulnerable persons within the framework of criminal procedure enforced and guaranteed? What is the role of prosecutors in this matter?
Yes, there is role in this regard, to ensure that the rights of Victims are fully respected and vindicated by the Court, defence practitioners, and other state actors. There is a role for Prosecutors in this regard. See the following link to the Guidelines for Prosecutors. Of particular significance in this context is Chapter 12, reproduced in full at Appendix 1 of this document:
3.2 Is this role of prosecutors established in the law or other legal instruments? Is this role established in the rules of ethics and professional conduct of prosecutors?
The duties of Prosecutors in this regard are a combination of ethical rules, established prosecution policy, national legislation & European Directives (as advised previously). This role will be recognised by the Victims Bill in respect to the various agencies involved ensuring that they are obligated to provide the information and services that they are statutorily obligated to provide.
3.3 How is this role fulfilled in practice? How do prosecutors cooperate with other organs of state in fulfilling this role, and do prosecutors have supervisory or monitoring functions?
See Appendix 1 at 12.26.
3.4 Can victims, witnesses and vulnerable persons apply directly to prosecutors for protection of their rights?
See below at Appendix 1, specifically 12.10, 12.11 and 12.26.
3.5 Can prosecutors, at their own initiative, start legal action for protection of the rights of victims, witnesses and vulnerable persons?
Only in the context of existing criminal proceedings.
3.6 Concerning assistance to victims, witnesses and vulnerable persons, do the prosecutors interact with other state bodies, private entities or NGOs?
Yes, most especially in conjunction with An Garda Siochana (National Police Service). See 12.26 at Appendix 1 (below). Prosecutors receive training from & provide training to a number of NGO’s including The Rape Crisis Centre, Migrants Rights organisations and others (Victim Support, Support after Homicide).
3.7 Do the prosecutors benefit from specific training on the protection of the rights of victims, witnesses and vulnerable persons? Does such training also involve prosecutorial staff and law enforcement agencies? Do the prosecutors play a role in carrying out such training?
Yes on all counts and such training will be revised and updated in light of the change to national law when the Victim’s Bill becomes law in July 2017 (proposed).
3.8 Any other relevant point you wish to raise.
No.
Appendix 1
Chapter 12
RIGHTS, SUPPORT AND PROTECTION OF VICTIMS OF CRIME
12.1 The purpose of this chapter is to set out the rights of victims of crime and their family members under the European Union Victims Directive 2012/29/EU as well as other measures for the rights, support and protection of victims of crime under existing law and prosecution policies. Further information is available in the Victims Charter on the Office website at www.dppireland.ie.
12.2 The Victims Directive came into effect on 16 November 2015. This chapter will be revised when domestic legislation transposing Directive 2012/29/EU is enacted.
12.3 The directive defines a ‘victim’ as:
(a) a natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence;
(b) family members of a person whose death was directly caused by a criminal offence and who have suffered harm as a result of that person’s death.
12.4 Under the directive, ‘family members’ of a deceased victim include:
(a) the spouse, or person who is living with the victim in a committed intimate relationship, in a joint household and on a stable and continuous basis;
(b) a child (meaning any person below 18 years of age), grandchild, parent, grandparent, brother, or sister, and the dependants of the deceased person.
12.5 In cases where victims lack capacity to look after their own affairs, the prosecutor will treat family members of such persons as victims of crime.
12.6 A person who is under investigation for, or has been charged with, an offence in connection with the death of a deceased victim will not be regarded by the prosecutor as a family member of the deceased victim and is not entitled to request a summary of reasons for a decision not to prosecute.
ROLE OF THE DPP AND THE GARDA SÍOCHÁNA
12.7 The Director of Public Prosecutions prosecutes cases on behalf of the People of Ireland and not just in the interests of any one individual. The Office of the DPP will have regard to any views expressed by a victim when deciding whether or not to prosecute or in relation to the acceptance of a plea of guilty to any lesser charge. Although the views and interests of the victim are important, they are not the only consideration when deciding whether or not to prosecute or when deciding to accept a plea of guilty. The Office of the DPP will communicate with victims in simple and accessible language whether orally or in writing.
12.8 The Garda Síochána also make prosecution decisions. They may institute and conduct prosecutions in the name of the Director of Public Prosecutions. They can only do so for offences specified in a General Direction from the Director of Public Prosecutions under section 8(4) of the Garda Síochána Act 2005.
12.9 When a Garda Superintendent decides not to prosecute a suspect following the investigation of an offence, victims may request a summary of reasons and a review of that decision from the Garda Síochána.
GIVING OF REASONS BY DPP FOR DECISIONS NOT TO PROSECUTE
12.10 The Office of the DPP will provide to a victim upon request a summary of the reasons for a decision not to prosecute in respect of the following matters:
(a) all of its decisions not to prosecute made on or after 16 November 2015; and
(b) in relation to the death of a victim which occurred on or after 22 October 2008.
12.11 The Office of the DPP is not obliged to provide a summary of reasons for a decision not to prosecute where such disclosure may:
(a) interfere with the on-going investigation of any offence; or
(b) prejudice further criminal proceedings for any offence; or
(c) endanger the personal safety of any person; or
(d) endanger the security of the State.
12.12 In the case of a victim who does not understand or speak English or Irish, the Office of the DPP will provide to the victim upon request a translation of the summary of reasons for a decision not to prosecute.
12.13 It is important to note that there are time limits within which a victim must request a summary of reasons. This is to ensure the fair and efficient administration of justice and to balance the rights of a victim with those of a suspect. In some cases the time limits may be extended but only if there is a good reason and it is in the interests of justice to do so.
12.14 Requests for reasons for decisions not to prosecute should be in writing and addressed to:
Communications and Victims Liaison Unit,
Office of the Director of Public Prosecutions,
Infirmary Road,
Dublin 7.
Further information about the giving of reasons for decisions not to prosecute can be found on the Office website at www.dppireland.ie.
REVIEW BY DPP OF DECISIONS NOT TO PROSECUTE
12.15 The Office of the DPP will carry out a review of the decision not to prosecute upon request from a victim who is dissatisfied with the summary of reasons provided for the decision not to prosecute.
12.16 Alternatively, where a victim has not sought a summary of the reasons for the decision not to prosecute but wishes to have that decision reviewed, the Office of the DPP will upon request from the victim review the decision not to prosecute.
12.17 It is important to note that there are time limits within which a victim must request a review of a decision not to prosecute. This is to ensure the fair and efficient administration of justice and to balance the rights of a victim with those of a suspect. In some cases the time limits may be extended but only if there is a good reason and it is in the interests of justice to do so.
12.18 Requests for reviews of decisions not to prosecute should be in writing and addressed to:
Communications and Victims Liaison Unit,
Office of the Director of Public Prosecutions,
Infirmary Road,
Dublin 7.
Further information about reviewing decisions not to prosecute can be found on the Office website at www.dppireland.ie.
12.19 The Office of the DPP will also give careful consideration to any request by a victim that proceedings be discontinued. It must be borne in mind, however, that the expressed wishes of victims may not coincide with the public interest and in such cases, particularly where there is other evidence implicating the accused person or where the gravity of the alleged offence requires it, the public interest may require the continuation of a prosecution despite the victim’s wish that it would be discontinued.
PROSECUTION APPEALS AND SENTENCE REVIEWS
12.20 The Director of Public Prosecutions will consider any communication received from victims of crime, or the family members of victims of crime who have died, are ill or otherwise incapacitated, in connection with powers granted by law to the Director to appeal or apply in respect of the matters set out in paragraphs 12.21 to 12.25 below which are also discussed in Chapter 11.
12.21 The Director may apply to the Court of Appeal for a review of sentences which appear to the Director to be unduly lenient, in accordance with the provisions of section 2 of the Criminal Justice Act 1993. The Director cannot apply for a review of sentence imposed by a court on conviction of a person in summary proceedings and may do so only in respect of sentences imposed by a court on conviction of a person on indictment.
12.22 The Director may apply to the Court of Appeal for a re-trial order in respect of a person tried on indictment and acquitted either at trial, or on appeal against conviction, or on appeal from such a decision on appeal, in accordance with the provisions of Part 3 of the Criminal Procedure Act 2010:
(a) under section 8(3) – where it appears to the Director that:
(i) there is new and compelling evidence against the person acquitted in relation to the relevant offence concerned; and
(ii) it is in the public interest to do so;
(b) under section 9(3) – where the person acquitted or another person has been convicted of an offence against the administration of justice relating to the proceedings which resulted in the acquittal, thus tainting those proceedings and that acquittal, and where it appears to the Director that:
(i) there is compelling evidence against the person acquitted; and
(ii) it is in the public interest to do so.
12.23 The Director may appeal on a question of law to the Court of Appeal the acquittal of a person tried on indictment, in accordance with the provisions of section 23(1)(I) and Part 4 of the Criminal Procedure Act 2010, where it appears to the Director that:
(a) a ruling was made by the trial court which erroneously excluded compelling evidence; or
(b) a direction was given by the trial court directing the jury to find the person not guilty, where:
(i) the direction was wrong in law, and
(ii) the evidence adduced in the proceedings was evidence upon which a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned.
12.24 The Director may seek leave to appeal on a question of law to the Supreme Court under Article 34.5.4 of the Constitution the acquittal of a person tried on indictment in the Central Criminal Court, pursuant to the provisions of section 23(1)(II) and Part 4 of the Criminal Procedure Act 2010, where it appears to the Director that the conditions in paragraph 12.23 (a) or (b) above are met. For such an appeal to lie, the Supreme Court must be satisfied that there are exceptional circumstances warranting a direct appeal to it and, as a precondition to being so satisfied, one or both of the following factors must be present: (i) the decision involves a matter of general public importance; (ii) the interests of justice.
12.25 The Director may seek leave to appeal on a question of law to the Supreme Court under Article 34.5.3 of the Constitution a decision of the Court of Appeal not to order the re-trial of a person whose conviction on indictment was quashed on appeal, pursuant to the provisions of section 23(2) and Part 4 of the Criminal Procedure Act 2010, where it appears to the Director that a ruling was made during the hearing of the appeal which erroneously excluded compelling evidence. For such an appeal to lie, the Supreme Court must be satisfied that: (i) the decision involves a matter of general public importance, or (ii) an appeal is necessary in the interests of justice.
RESPONSIBILITIES OF PROSECUTORS TO VICTIMS IN CRIMINAL PROCEEDINGS
12.26 Prosecutors have the following responsibilities to victims of crime:
(a) To work with the Garda Síochána to ensure that the victim is kept fully informed of developments in relation to the criminal prosecution and proceedings which result from the victim’s statement of complaint and reporting of the crime.
(b) To update the investigating Gardaí, and through them the victim, on developments in relation to pre-trial applications, applications before the Superior Courts or appeals against conviction and/or sentence.
(c) To arrange at the victim’s request a pre-trial meeting between the victim and the prosecutor who is dealing with the case.
(d) To explain to the victim the processes and procedures relating to the trial or hearing of criminal cases and answer any questions the victim may have about them. Generally, the prosecutor is not permitted to discuss evidence with witnesses or victims in advance of the hearing of a case. This is intended to prevent witnesses or victims being told what evidence to give or to avoid any suggestion that this has happened.
(e) To deal with victims in a respectful, professional, non-discriminatory and impartial manner and with due regard to the personal circumstances, rights and dignity of victims.
(f) To listen and consider the views of the victim. The victim is not, however, entitled to give instructions to the prosecutor concerning the conduct of the trial or hearing of the case.
(g) To seek to protect the interests of victims to the best of their professional abilities consistent with their duty to the court and their duty to conduct the prosecution on behalf of the People. Prosecutors should have due regard to the likelihood that a victim of crime when called to testify may experience again the emotional and physical distress caused by the offence.
(h) To keep the victim informed of what is happening during the course of the trial or hearing of the case, including any decision to change, modify or not proceed with charges laid against the accused and any decision to accept a plea of guilty to a less serious charge.
(i) To work with the Garda Síochána and the Courts Service to ensure that the victim can understand the criminal proceedings.
(j) To draw the court’s attention in appropriate cases to the following powers: to make an order under section 6 of the Criminal Justice Act 1993 requiring payment of compensation in respect of any personal injury or loss resulting from the offence (or any other offence that is taken into consideration by the court in determining sentence) to any person who has suffered such injury or loss; to make an order under section 56 of the Criminal Justice (Theft and Fraud Offences) Act 2001 for the restitution of property which was stolen where a person is convicted of an offence with reference to the theft (whether or not the stealing is the essential ingredient of the offence) or of any other offence where the theft offence is taken into consideration in determining sentence; and, pursuant to section 84 of the Criminal Justice (Mutual Assistance) Act 2008, to make a section 56 restitution order in relation to property which is outside the State.
(k) To have due regard to Article 10 of the European Union Victims Directive 2012/29/EU under which victims of crime have a right to be heard during criminal proceedings and to provide evidence. That right encompasses the sentencing stage of criminal proceedings.
EFFECT OF OFFENCE ON VICTIM
12.27 The prosecutor will draw the provisions of section 5 of the Criminal Justice Act 1993 to the attention of a sentencing court and will furnish to that court any evidence or submission received concerning the effect of the offence on the victim, from the victim, or a family member of a victim who is deceased, ill or otherwise incapacitated as a result of the offence.
12.28 When imposing sentence on a person convicted of an offence specified in section 5(1) of the Criminal Justice Act 1993, a sentencing court must take into account the effect of the offence on the victim. The court may, where necessary, receive evidence or submissions concerning any effect (whether long-term or otherwise) of the offence on the person in respect of whom the offence was committed. If the victim so requests, the court must hear the evidence of the victim as to the effect of the offence. Where the victim has died, is ill or is otherwise incapacitated as a result of the offence, a family member of that person may give evidence of the effect of the offence. Where the victim is a child under 14 years of age, a parent or guardian may give such evidence. In the case of a victim with a mental disorder, such evidence may be given by the person, or a family member, or a parent or guardian. Further information for victims of crime or their family members who have questions about victim impact evidence is available from a leaflet entitled ‘Making a Victim Impact Statement’ which is found on the Office of the DPP website at www.dppireland.ie and on the Garda Síochána website at www.garda.ie.
12.29 The offences specified in section 5(1) of the Criminal Justice Act 1993, in respect of which the court must take into account the effect of the offence on the victim, are:
(a) a ‘sexual offence’ within the meaning of section 2 of the Criminal Evidence Act 1992 – see paragraph 12.32(a) below;
(b) an offence involving violence or the threat of violence to a person;
(c) an offence under the Non-Fatal Offences Against the Person Act 1997;
(d) an offence under section 2, 3 or 4 of the Criminal Justice (Female Genital Mutilation) Act 2012; and
(e) an offence consisting of attempting or conspiring to commit, or aiding, abetting, counselling, procuring or inciting the commission of, an offence mentioned in paragraph (a), (b), (c) or (d) above.
12.30 A ‘family member’ of a victim who has died, is ill, or is otherwise incapacitated, is defined under section 5(6) of the Criminal Justice Act 1993 as:
(a) a spouse or partner of the person;
(b) a child under 18 years of age, grandchild, parent, grandparent, brother, sister, uncle, aunt, nephew or niece of the person;
(c) a person who is acting in loco parentis to the person;
(d) a dependant of the person; or
(e) any other person whom the court considers to have had a close connection with the person.
PROCEEDINGS OTHERWISE THAN IN PUBLIC
12.31 The prosecutor will apply under section 6 of the Criminal Law (Rape) Act 1981, to the judge conducting proceedings, for the exclusion from the court during the hearing of all persons except officers of the court, persons directly concerned in the proceedings, bona fide representatives of the Press and such other persons (if any) as the judge may in his or her discretion permit to remain. The prosecutor’s application is without prejudice to the right to remain in court of a parent, relative or friend of the victim, or of the accused where the accused is not of full age. Such applications cannot be made in respect of every sexual offence. For example, they do not apply to the offence of sexual assault. Applications by the prosecutor under section 6 of the 1981 Act may be made in any proceedings for:
(a) a ‘rape offence’ – see paragraph 12.35(b) below – however, note these provisions which for the purposes of section 6 applications construe the following offences as a ‘rape offence’:
(i) defilement of a child under 15 or 17 years of age contrary to section 2 or 3 of the Criminal Law (Sexual Offences) Act 2006 – see section 6(3)(b) of the Criminal Law (Sexual Offences) Act 2006;
(ii) soliciting or importuning a child under 17 years of age, or a person who is mentally impaired, for the purposes of a sexual offence, contrary to section 6 of the Criminal Law (Sexual Offences) Act 1993 – see section 3(3)(b) of the Criminal Law (Sexual Offences) (Amendment) Act 2007;
(b) aggravated sexual assault or attempted aggravated assault;
(c) aiding, abetting, counselling or procuring aggravated sexual assault or attempted aggravated sexual assault;
(d) incitement to aggravated sexual assault; or
(e) conspiracy to commit any of the offences at (a), (b), (c) or (d) above.
GIVING OF EVIDENCE BY LIVE TELEVISION LINK
12.32 The prosecutor will apply to the court under section 13 of the Criminal Evidence Act 1992, where it is considered appropriate to do so, to allow a victim of crime, who is a witness in any proceedings for an offence to which Part 3 of the 1992 Act applies, to give evidence through a live television link. In deciding whether to make such an application, the prosecutor will take into account any assessment by the Garda Síochána of the vulnerability of the victim. It is a matter for the judge hearing the application to decide whether the witness will be permitted to give such evidence. Where a witness is under 18 years of age, the giving of evidence by live television link may be allowed unless the judge sees good reason to the contrary. In any other case, a witness may give such evidence under section 13 with the leave of the judge. The offences to which Part 3 of the 1992 Act applies are set out in section 12 of the 1992 Act as follows:
(a) a ‘sexual offence’ within the meaning of section 2 of the Criminal Evidence Act 1992 which includes (but specifically excludes attempts to commit) the following offences:
rape – sexual assault – aggravated sexual assault – rape under section 4 of the Criminal Law (Rape) (Amendment) Act 1990 – procuring the defilement of a woman by threats or fraud or administering drugs contrary to section 3 of the Criminal Law Act 1885 – owner, occupier or manager of a premises permitting the defilement of a young girl contrary to section 6 of the Criminal Law Act 1885 – soliciting or importuning a child under 17 years of age, or a person who is mentally impaired, for the purposes of a sexual offence, contrary to section 6 of the Criminal Law (Sexual Offences) Act 1993 – incest by a male, or a female of or over 17, contrary to section 1 or 2 of the Punishment of Incest Act 1908 – defilement of a child under 15 or 17 years of age contrary to section 2 or 3 of the Criminal Law (Sexual Offences) Act 2006 – having sexual intercourse or committing an act of buggery with a person who is mentally impaired, or commission by a male of an act of gross indecency with another male person who is mentally impaired, contrary to section 5(1) or 5(2) of the Criminal Law (Sexual Offences) Act 1993;
(b) an offence involving violence or the threat of violence to a person;
(c) an offence under section 3, 4, 5 or 6 of the Child Trafficking and Pornography Act 1998;
(d) an offence under section 2, 4, or 7 of the Criminal Law (Human Trafficking) Act 2008; or
(e) an offence consisting of attempting or conspiring to commit, or of aiding or abetting, counselling, procuring or inciting the commission of, an offence in paragraph (a), (b), (c) or (d) above.
12.33 Where a victim of crime is a witness in criminal proceedings and is outside the State, the prosecutor will consider applying as appropriate under section 67 of the Criminal Justice (Mutual Assistance) Act 2008, or section 13 of the Criminal Evidence Act 1992, to allow the witness to give evidence by live television link from outside the State. It will be a matter for the judge hearing the application to decide whether the witness should be allowed to give such evidence in the circumstances. With regard to section 67 of the 2008 Act, the witness must be in a designated state and the judge must be satisfied that it is not desirable or practicable for the witness to give evidence in person. In relation to section 13 of the 1992 Act, a witness under 18 years of age who is outside the State may be allowed to give evidence by live television link unless the judge sees good reason to the contrary, and in any other case, a witness may give such evidence under section 13 with the leave of the judge.
EVIDENCE IN RELATION TO SEXUAL EXPERIENCE
12.34 In a prosecution for a ‘sexual assault offence’ (see paragraph 3.25 below) the prosecutor will, in accordance with the provisions of sections 3, 4, 4A and 6(2) of the Criminal Law (Rape) Act 1981:
(a) object to questions being asked of a witness and/or evidence being adduced by the accused about any sexual experience of the complainant with any person, other than that to which the charge relates, where prior leave of the court has not been obtained;
(b) notify the complainant if the accused has given notice of intention to apply:
(i) under section 3 - to the trial judge - for leave to cross-examine the complainant about any sexual experience of the complainant with any person, other than that to which the charge relates; or
(ii) under section 4 - to the judge conducting proceedings under Part 1A of the Criminal Procedure Act 1967 relating to the dismissal of a charge of a sexual assault offence or the taking of a person’s evidence by way of deposition in the case of a sexual assault offence – for leave to adduce evidence or ask a question which, if the proceedings were a trial as under section 3, could not be adduced or asked without leave of the trial judge.
(c) advise the complainant of the complainant’s entitlement to be heard in relation to the accused’s application and to be legally represented for that purpose during the application (see paragraph 12.36 below) – the prosecutor will upon request by the complainant contact the Legal Aid Board who will arrange for such legal representation;
(d) apply to the trial judge for the exclusion from the court, during the hearing of the accused’s application, of all persons except officers of the court and persons directly concerned in the proceedings – without prejudice to the right of a parent, relative or friend of the complainant, or of the accused where the accused is not of full age, to remain in court.
(e) oppose the accused’s application if, in the view of the prosecutor, it would not be unfair to the accused to refuse to allow the evidence to be adduced or the question to be asked, having regard to the provisions of sections 3(2)(b) and 4(2) of the 1981 Act.
12.35 A ‘sexual assault offence’ within the meaning of section 1 of the Criminal Law (Rape) Act 1981 includes:
(a) sexual assault, attempted sexual assault, aggravated sexual assault, attempted aggravated sexual assault – aiding, abetting, counselling and procuring those four offences – incitement to sexual assault or aggravated sexual assault – conspiracy to commit any of the foregoing offences; and
(b) a ‘rape offence’: rape, attempted rape, burglary with intent to commit rape – aiding, abetting, counselling and procuring those three offences – incitement to rape – rape under section 4 of the Criminal Law (Rape) (Amendment) Act 1990 and attempted rape under section 4 – aiding abetting, counselling and procuring those two offences – incitement to rape under section 4; and
(c) for the purposes of applications to the court under section 3, 4 or 6 of the Criminal Law (Rape) Act 1981, the following offences are construed as a ‘sexual assault offence’:
(i) defilement of a child under 15 or 17 years of age contrary to section 2 or 3 of the Criminal Law (Sexual Offences) Act 2006 – see section 6(3)(b) of the Criminal Law (Sexual Offences) Act 2006; and
(ii) soliciting or importuning a child under 17 years of age, or a person who is mentally impaired, for the purposes of a sexual offence, contrary to section 6 of the Criminal Law (Sexual Offences) Act 1993 – see section 3(3)(b) of the Criminal Law (Sexual Offences) (Amendment) Act 2007.
12.36 Whilst all proceedings for a ‘sexual assault offence’ attract the requirement to obtain leave of the court to ask questions of a witness and/or adduce evidence about the complainant’s sexual experience, the entitlement of a complainant to be heard and legally represented during an application by an accused under section 3 or 4 of the Criminal Law (Rape) Act 1981 does not extend to every ‘sexual assault offence’. For example, the complainant’s entitlement does not include the offence of sexual assault. The offences to which it does apply are set out in section 4A(6) of the 1981 Act as follows:
(a) a ‘rape offence’ – see paragraph 12.35(b) above;
(b) defilement of a child under 15 or 17 years of age – contrary to section 2 or 3 of the Criminal Law (Sexual Offences) Act 2006;
(c) soliciting or importuning a child under 17 years of age, or a person who is mentally impaired, for the purposes of a sexual offence - contrary to section 6 of the Criminal Law (Sexual Offences) Act 1993;
(d) aggravated sexual assault, attempted aggravated sexual assault, incitement to aggravated sexual assault;
(e) aiding, abetting, counselling and procuring aggravated sexual assault or attempted aggravated sexual assault.
(f) conspiracy to commit any of the offences in paragraphs (a), (b), (c) or (d) above.
LEGAL ADVICE
12.37 Prosecutors will work with the Garda Síochána to ensure that complainants in prosecutions for sexual offences are aware of their entitlement to free legal advice which is arranged by the Legal Aid Board in accordance with the provisions of section 26(3A) of the Civil Legal Aid Act 1995. As stated above, the complainant’s entitlement does not extend to all sexual offences. Complainants are entitled to free legal advice in prosecutions for the offences set out in section 26(3A) of the 1995 Act as follows:
(a) rape – contrary to common law, or section 2 of the Criminal Law (Rape) Act 1981, or section 4 of the Criminal Law (Rape) (Amendment) Act 1990;
(b) aggravated sexual assault – contrary to section 3 of the Criminal Law (Rape) (Amendment) Act 1990;
(c) soliciting or importuning a child under 17 years of age, or a person who is mentally impaired, for the purposes of a sexual offence – contrary to section 6 of the Criminal Law (Sexual Offences) Act 1993;
(d) defilement of a child under 15 or 17 years of age – contrary to section 2 or 3 of the Criminal Law (Sexual Offences) Act 2006;
(e) incest – contrary to section 1 or 2 of the Punishment of Incest Act 1908.
12.38 A person who is identified as a suspected victim of a human trafficking offence is entitled to free legal advice which is arranged by the Legal Aid Board in accordance with the provisions of section 26(3B) of the Civil Legal Aid Act 1995. The entitlement applies whether or not a prosecution for the human trafficking offence has been instituted. Determinations as to whether there are reasonable grounds for believing a person is a victim of a human trafficking offence are made by the Garda Síochána under administrative arrangements for the protection of such victims.
FREEDOM OF INFORMATION
12.39 Information about requests to the Office of the DPP under the law on freedom of information can be found in chapter 16 and on the Office website at www.dppireland.ie.
PERSONAL DATA
12.40 Information about how the Office of the DPP processes personal data under data protection law can be found in chapter 16.
COMPLAINTS
12.41 Prosecutors or members of the Director’s staff who become aware of anyone wishing to make a complaint about services provided by the Office of the DPP which directly affected them will inform those persons of the Complaints Policy. Information on the Complaints Policy can be found in chapter 16 and on the Office website at www.dppireland.ie.
12.42 Victims of crime, or family members of victims of crime who have died, are ill or otherwise incapacitated, who are dissatisfied with a decision not to prosecute may request a summary of the reasons for the decision or a review of the decision. That is a separate process to making a complaint about services provided by the Office of the DPP. Requests for reasons or review are discussed in paragraphs 12.10 to 12.19 above and further information can be found on the Office website at www.dppireland.ie.