REPORT ON SERVICES AND LEGISLATION
PROVIDING SUPPORT FOR VICTIMS OF CRIME
Ivana Bacik
Liz Heffernan
Patricia Brazil
Marguerite Woods
Law School, Trinity College Dublin
Report prepared for
The Commission for the Support for Victims of Crime
December 2007
1
TABLE OF CONTENTS
PAGE No.
1. INTRODUCTION
3
2. RECOMMENDATIONS
5
3. EMPIRICAL FINDINGS
12
4. IRISH LAW AND PRACTICE
29
5. EUROPEAN AND INTERNATIONAL STANDARDS
64
6. SELECT COMPARATIVE REVIEW
71
7. SELECT BIBLIOGRAPHY
103
APPENDIX 1
119
Questionnaire
APPENDIX 2
122
List of Groups from which Completed Questionnaires were returned
APPENDIX 3
124
Garda Support Measures for Victims of Crime
2
1.
INTRODUCTION
The needs of victims of crime have tended to be overlooked within the Irish criminal justice
system until recently. With increasing awareness of those needs, the environment for crime
victims has been changing rapidly. In the last decade, new victim support organisations have been
established, new legislation introducing more victim-centred criminal reforms has been
introduced, and a culture of victims’ rights has begun to develop.
In this context, the Commission for the Support of Victims of Crime was set up in March 2005
with a three year remit to (a) devise an appropriate support framework for victims of crime into
the future. and (b) to disburse funding for victim support and assistance measures.
As part of its work, the Commission has sought to ensure continuity of services on the ground
for crime victims where existing services were failing or absent; but it has also committed to
undertaking a comprehensive review of current and future needs with a view to devising a
framework of victim services into the future.
An important aspect of the Commission’s role has been ensuring the provision of a high quality
service across the country to victims of crime; seeking to ascertain that basic conditions are met
and that there is a commonality of practice across the board. In particular, the Commission has
sought to ensure that there is no duplication of the services provided and that victims in all areas
are receiving a consistency of service.
To assist the Commission in maintaining regular contact with the service providers, that is the
organisations providing services directly to victims on the ground, and to which the Commission
is disbursing funds, the Commission has appointed a Co-Ordinator to act as liaison officer
between the Commission and the funded groups. The Co-Ordinator met with all the groups
during 2006, and brought their concerns to the Commission and to criminal justice agencies.
In February 2007, as part of its work in devising a framework for the future development of
victim services, the Commission published a request for tender inviting interested parties to carry
out research and produce a short factual report on:

The services currently provided in Ireland by non-governmental organisations and
others to victims of crime;

Irish/European legislation in relation to support for victims of crime; and
3

A literature review on the systems for the support of victims of crime pertaining in EU
and non EU common law countries.
This Report represents the product of that research, carried out by the authors as the successful
tenderers, and commissioned by the Commission itself. The objective of the Report is to provide
the Commission with comprehensive information about existing supports in this jurisdiction for
victims of crime, including an evaluation of the adequacy of current supports available.
An additional objective is to provide the Commission with a selective comparative review and
analysis of supports available in other jurisdictions which might usefully be applied in Ireland.
The research was conducted in three simultaneous phases over a period of four months. First,
empirical data were gathered on the services currently provided by victim support groups to
individual victims of crime. Secondly, an overview was prepared of Irish and European law as it
relates to victims of crime. Thirdly, a review was carried out of the supports and services
available to victims of crime in a selection of other jurisdictions.
Given the parameters of the research brief, and the very limited timeframe available to the
researchers, empirical data were not gathered either from statutory agencies (such as An Garda
Síochána or the Courts Service); nor from the victims of crime themselves. Clearly, further
research seeking the views of crime victims directly would be very useful indeed in devising a
comprehensive framework for victim support, and the need for this further research to be
conducted is one of the recommendations made in this Report.
The findings of the research team are presented below. A series of conclusions have been derived
from the research and are presented in the final chapter.
4
2.
RECOMMENDATIONS
With increasing awareness of the needs of victims, the environment for crime victims has been
changing rapidly in recent times. In the last decade, much more debate has been generated about
the experiences of victims; new victim support organisations have been established, new
legislation introducing more victim-centred criminal reforms has been introduced, and a culture
of victims’ rights has begun to develop. However, an impression persists that little has been done
by way of substantive change for individual victims in a practical sense.
Real concerns remain about the adequacy of supports available to victims on a consistent basis
across every region of Ireland. Further concerns exist about the extent to which Irish legislation
on victim supports meets our obligations at EU and international level. Finally, a comparative
review of the services provided to victims in other jurisdictions indicates that much more could
be done within the Irish criminal justice system to support the needs of victims and improve
their experience within that system.
For the purpose of this report, some of these concerns have been examined, and a comparative
review conducted, in order to ascertain what may be done in practical terms to meet the needs of
crime victims. Tentative suggestions and recommendations have been derived from the research
conducted into each area of the study, and these are presented below under the headings used in
individual chapters. One common theme has emerged from each phase of the research
conducted; the need for the introduction of an enforceable Charter of rights for victims, and the
establishment on a statutory basis of a national agency or commission for the support of victims
of crime.
Empirical Findings
The responses provided by victim support groups to the survey conducted for this research
indicate a widespread concern that support services are not available to crime victims on a
consistent basis in every area nationally. Even where supports are provided in particular
locations, the victim support groups take the view that victims may not be aware of them.
Although An Garda Síochána have a policy of providing the names of victim support groups to
individual victims of crime, they do not pass information about the victims directly to victim
support groups, due to Data Protection legislation concerns. Thus the perception exists that no
systematic referral procedure from statutory agencies to local support organisations is in place.
5
Another key concern emerging from the survey is the perception among victim support groups
that national co-ordination for local services is absent, and the fear that there is a consequent
danger of duplication among agencies on the ground.
These concerns and others are addressed in some of the recommendations summarised below.
1. A Victims’ Charter containing enforceable legal rights should be introduced on a
statutory basis.
2. A national agency or commission for the support of victims of crime should be
established on a statutory basis.
3. Support services should be established by a national agency or commission across
different areas, to ensure equality of access to supports for victims in every geographical
location, and at least in every county.
4. The system of referral to local victim support agencies by An Garda Síochána should be
reviewed. Although An Garda Síochána have a policy of providing individual victims
with the names of local victim support groups whenever a crime is reported to them, the
perception exists among victim support groups that victims are often not aware of local
support services.
5. An emergency fund or rapid response call-out service (as proposed by the National
Crime Victims Helpline) should be established at national level to cover immediate outof-pocket expenses and provide short-term interventions (for example, social workers,
counsellors, help with fixing broken windows or doors) for vulnerable or isolated
victims.
6. The provision of training in dealing with victims for members of An Garda Síochána,
judges, prosecutors and court service personnel should be co-ordinated on a national
basis to ensure consistency of service from State agencies.
7. The provision of more detailed information to victims about court procedures should be
co-ordinated at national level.
8. Funding should be provided on a multi-annual basis to victim support groups.
6
9. Members of An Garda Síochána should receive improved training in taking statements
from victims, particularly when sexual offences are reported to them.
10. Measures should be put in place to ensure a reduction in delays in court processes.
11. Courtroom facilities should be improved in every courthouse to ensure that victims have
adequate space, and to separate them from the accused person/persons.
Irish Law and Practice
In recent years, the Irish courts have increasingly recognised that criminal proceedings involve
the interests not only of the State and the accused but also of the victim and his or her relatives.
The position of the victim has gained additional support from the recent movement to rebalance
the criminal justice system by de-emphasising the rights of the accused. At the same time, any
changes in law and practice aimed at advancing victims’ rights must respect the constitutional and
internationally protected rights of the defence. The tentative recommendations in this section
highlight just some of the specific concerns identified by the research into current Irish law and
practice.
1. In terms of constitutional rights, there is support for the view that Article 40.3.2
implicitly obliges the State to protect and vindicate the life, person and property rights of
victims of crime. The extent of any such State obligation has not been judicially
determined but, at a minimum, Article 40.3.2 constitutes a springboard for the adoption
by the State of measures designed to protect and support victims.
2. Reconsideration of proposals for the enactment of a comprehensive statutory charter for
victims of crime is timely. The position of victims and their role in legal proceedings
would be enhanced by the adoption of such a code defining the status of “victim” and
setting out legal rights and entitlements. A charter would provide a single, dedicated
legal foundation for victims’ rights and would assist in codifying existing law and
practice. It could also provide a statutory basis for a national victim support agency or
commission, and could represent an opportunity to strengthen protection in specific
areas which are in need of reform such as special measures for victims as witnesses, and
mechanisms for the provision of compensation. In addition, a charter could include
provision empowering the Minister for Justice to adopt regulations covering matters not
strictly the subject of legal rights.
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3. There is ample scope for reform of law and practice with a view to heightening the
profile of the victim and reducing the trauma associated with legal proceedings. The
adversarial and accusatorial nature of the Irish criminal justice system disadvantages the
victim in several respects. The interests of the victim are incidental and the role of the
victim secondary in criminal proceedings. A first step would involve a detailed,
comprehensive step-by-step examination of the role of the victim in criminal
investigations and proceedings from the pre-trial phase, through the trial phase and
beyond to the post-trial phase.
4. Irish law does not recognise victims of crime as a distinct category of witness. Although
the process of testifying may be particularly traumatic for victims, they are generally
subject to the same rules and procedures as ordinary witnesses. Consideration should be
given to extending the range and depth of special measures (such as live-television link
and video-recorded evidence) afforded to witnesses under Irish law. The possibility of
making such measures available to victims as a designated category of witnesses should
be examined.
5. Victim impact statements potentially provide a meaningful way in which victims can
contribute to criminal proceedings. The existing statutory procedure is limited in several
respects, however, and has not been applied consistently in practice. More generally,
lawmakers should explore other possible ways in which victims might participate in
proceedings.
6. The effective provision of adequate compensation for victims of crime is an issue that is
ripe for reform. The options currently available in Ireland (the non-statutory scheme,
compensation orders at sentencing, and civil proceedings) whether assessed collectively
or standing alone, fail to provide meaningful access to compensation for victims.
7. The position of victims of sexual offences raises particular concerns some of which have
been addressed in legislation or detailed elsewhere. Proposals for reform must take
account of the particular needs of this group of victims and, where appropriate, the
desirability of additional or heightened measures of protection.
8. Further research seeking responses from victims themselves is essential to gaining a
more comprehensive understanding of the needs of victims of crime in Ireland.
8
European and International Standards
National developments in relation to victims of crime in recent years have been mirrored by
advances at regional and international levels. The need for States to provide adequate support
and protection for victims has been recognised by various organisations for some time and is
reflected in a range of international standards. These standards vary in their depth and breadth:
some are general and aspirational but others create specific, legally binding obligations. A
concerted international effort is now underway to secure the implementation of these standards
in State practice. The research suggests that Ireland is not meeting fully its commitment to
victims as a member of the European Union, the Council of Europe and the United Nations.
1. Ireland is bound by the terms of the 2001 EU Framework Decision on the Standing of
Victims in Criminal Proceedings. The empirical survey and analysis of law and practice
suggest that Irish practice is not in conformity with the Decision in all respects.
2. Ireland has neither signed nor ratified the 1983 European Convention on the
Compensation of Victims of Violent Crime. Irish practice also falls short of the
standards enunciated in the Recommendation on Assistance to Crime Victims adopted
by the Committee of Ministers of the Council of Europe in June 2006.
3. As regards global standards, Irish law and practice arguably conforms to some of the UN
basic principles of justice for crime victims but not to others. Ireland has signed but not
ratified the 2000 UN Convention Against Transnational Organised Crime and Its
Protocol Against Trafficking in Persons, Especially Women and Children (which contain
provisions relating to victims).
Select Comparative Review
A review of support measures which have been introduced in a number of common law
jurisdictions is instructive in considering the scope for reform of Irish law in respect of the role
of the victim in the criminal justice process.
1. Consideration should be given to the introduction of a Victims Bill of Rights. In order to
maximise the protection and supports available to victims, such a Bill of Rights should
be expressed in terms of mandatory entitlements rather than aspirational terms, as in the
Manitoba model.
9
2. The establishment of a consultative process to precede the publication of a Victims’ Bill
of Rights, to include all agencies within the criminal justice sector which deal with
victims as well as organisations representing victims, would allow for a full debate on the
scope and content of a Victims Bill of Rights.
3. The Victims Bill of Rights should state clearly the agencies which are subject to its
application, and express in mandatory terms the obligations which apply in respect of
each agency when dealing with victims of crime, such as the right to information and the
right to support services.
4. A national victim support agency, Commissioner for Victims or Ombudsman for
Victims should be appointed on a statutory basis, with specific functions to include
liaising with various agencies of the criminal justice system and keeping under review the
Victims Charter or Bill of Rights.
5. A formal complaints procedure should be established for victims who feel their rights
under the Bill of Rights have not been upheld. A single, independent body should have
responsibility for such complaints procedure, eg the national agency or Ombudsman for
Victims, who should have the statutory power to investigate a complaint, issue a report
following investigation and make recommendations based on those findings.
6. In order to ensure an ongoing dialogue with criminal justice agencies and organisations
representing victims, a Victims Advisory Panel could be established to advise the
national victim support agency and/or the Minister for Justice of policies, arrangements
and the need for reform.
7. Specific provision should be made in the Bill of Rights for vulnerable victims and
intimidated victims. A specific definition should be developed for each category and a
statement of the additional supports which are to be made available to such victims.
Useful models for such supports may be found in other jurisdictions.
8. The creation of a statutory definition of vulnerable or intimidated witnesses should be
considered, as well as guidelines on the identification of intimidated and vulnerable
witnesses and measures to provide protection and reassurance to intimidated witnesses.
10
9. Guidelines should be issued in order to ensure that appropriate interview methods are
used in respect of vulnerable or intimidated witnesses, and providing for a full range of
investigative and pre-trial support measures.
10. Consideration should be given to a statutory provision allowing a court to apply special
measures at a trial involving vulnerable or intimidated witnesses, eg the right of a
vulnerable person to the presence of a supportive person while giving evidence.
11. The creation of a witness satisfaction survey would provide invaluable information as to
the views of witnesses of the criminal justice system and their needs. In particular, a
study on the experience of victims in relation to the use of Victim Impact Statements
would help to ensure that the procedure is applied in a way that offers the most support
to victims while minimising the stresses which may arise.
12. Statutory provisions or guidelines on the use of victim impact statements would assist in
the minimisation of inconsistency in the use of such statements.
13. Consideration should be given to creating a comprehensive Victims Compensation
Scheme on a statutory basis which would define those entitled to apply for
compensation and the injuries in respect of which compensation is payable, to include
psychological injury, pain and suffering and provision for counselling.
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3.
EMPIRICAL FINDINGS
Introduction
Any assessment of the needs of victims of crime in Ireland must of necessity be hampered by the
lack of research into the extent of victimisation generally and the experiences of victims more
specifically. Very limited quantitative or qualitative empirical research about crime victims has
been conducted in Ireland to date, and most of this has focused on those victims who have been
involved in court processes. Very little research has been done on victims of crime in respect of
whom no court process has been initiated.
Official crime statistics on the number of reported crimes, detection and conviction rates are
provided in annual Garda Reports, and are now published by the Central Statistics Office.1
Academic discussion and analysis of these statistics may be found in a number of academic texts
and articles.2
Existing Empirical Research on Victims of Crime
The focus of academic research analysing official crime statistics has not generally been upon
victims of crime. However, a small number of quantitative studies have been carried out seeking
to discover the extent of victimisation; that is, the real numbers of persons who are victims of
crime in Ireland, beyond merely those who have reported crimes to the police. Sometimes
referred to as “crime surveys”, these are commonly used tools internationally which provide
estimates of crime prevalence independent of official police figures, and which usually uncover a
so-called “dark figure” of unreported crime greater than that disclosed by official police reports.
The first major such victimisation survey in Ireland, referred to by O’Connell as “the landmark
work”,3 was carried out in 1982-3 by Breen and Rottman for the Economic and Social Research
Institute (ESRI), asking a sample of approximately 8,000 respondents about their experiences of
See An Garda Síochána Annual Reports, 1947 – 2006. The Central Statistics Office took over responsibility for the
publication of crime statistics from the Garda Síochána in October 2006.
1
See for example: I. O’Donnell, E. O’Sullivan and D. Healy, Crime and Punishment in Ireland 1922-2003 (IPA, 2005); P.
Young, I. O’Donnell. and E. Clare, Crime in Ireland: Trends and Patterns, 1950 – 1998 (National Crime Council/Institute
of Criminology, UCD, 2001); J. Brewer, B. Lockhart and P. Rodgers, Crime in Ireland 1945-95: Here Be Dragons
(Clarendon Press, 1997); and R. Breen and D. Rottman, Crime in the Republic of Ireland: Statistical Trends and Their
Interpretation (ESRI, 1980).
2
M. O’Connell, “Assessment of the Crime Rate in Ireland – Issues and Considerations” in P. O’Mahony (ed), Criminal
Justice in Ireland (IPA, 2002), at p.122.
3
12
six offences.4 The findings suggested that much greater numbers of these offences were
committed than was indicated by garda figures. Further small victimisation studies were
conducted in the mid-1990s, in particular the Dublin Crime Survey carried out by O’Connell and
Whelan in 1994. 5 Again the actual crime figure revealed by these studies exceeded the figure
supplied by the official Garda Annual Reports, and the authors concluded that where victims did
not report crime, this was because they felt either that the crime was too trivial, or because they
lacked faith in the ability of the police to investigate the offence.
In 1999, the Central Statistics Office (CSO) carried out its first crime victimisation study, which
also supported the view that Irish crime is under-reported.6 A further crime survey was published
by the CSO in 2006, finding that there had been a small reduction in the prevalence of personal
crime experienced by individuals between 2003 and 2006.7 The survey also found, in keeping
with crime surveys elsewhere, that males and young adults are the groups most at risk of being
victimised. However, the survey did not ask respondents about sexual or domestic abuse, crimes
where the authors noted the majority of victims are female. The survey also found that highest
rates of victimisation occur in Dublin; households in rural areas tend to have only half the
prevalence of property crime as those in urban areas.
Other research into victims of crime has tended to be more qualitative in focus, seeking to
explore the experiences of victims of crime. Much of this research carried out in Ireland has
focused upon particular types of crime, notably sexual crime or crimes of domestic violence.
However, in a more general Economic and Social Research Institute survey of 959 victims of
crime, published in 2000, Watson8 found that the need for information on the progress of
criminal prosecutions was a critical one for victims of crime, but that fewer than two in five
victims were satisfied with the follow-up information provided by the police on their case, and
only one in four were satisfied with the final outcome of the case. Watson further found that
repeat victimisation was a serious issue, and that institutions in particular tended to suffer more
multiple victimisations than individuals. She also found a “Dublin concentration” to exist, just as
the CSO surveys show, especially high in cases of violent crime, with for example 80 per cent of
victimisation by aggravated theft and burglary recorded in the capital city.
4
R. Breen and D. Rottman, Crime Victimisation in the Republic of Ireland (ESRI, 1985).
5
M. O’Connell and A. Whelan, “Crime Victimisation in Dublin” (1994) 4 Irish Criminal Law Journal 85-112.
6
CSO, Quarterly National Household Survey: Crime and Victimisation (CSO, 1999).
7
CSO, Quarterly National Household Survey 2006: Crime and Victimisation (CSO, 2006).
8
D. Watson, Victims of Recorded Crime in Ireland (Oak Tree Press, 2000).
13
More detailed research has been conducted in Ireland into the experiences of victims of rape and
sexual offences. Research by Leane et al, for example, highlighted the high attrition rate that
applies to sexual assault offence cases in Ireland, and has concluded that attrition or slippage can
occur at multiple points in the legal process, including the pre-reporting stage.9 A 1998 study by
Bacik et al, which examined different legal principles and practices in rape law applying
throughout the EU and their impact on victims of rape, found that significant problems
remained. Difficulties were identified both with the definition of rape, and with the rules applied
to the evidence given by the victim at trial.10 In 2002, the Sexual Abuse and Violence in Ireland
(SAVI) report found that one in five women and one in six men had experienced contact sexual
abuse in childhood, and that 42 per cent of women had experienced some form of sexual abuse
or assault in their lifetime. These figures were far higher than those suggested by official reports
on sexual abuse.11 A follow-on study conducted three years later re-interviewed some of the
respondents to the original study in order to establish the effects of disclosure of sexual abuse.12
Other research has been carried out on women's experiences of “domestic” violence (the
alternative phrase “violence in intimate relationships between women and men” was used in a
report reviewing the literature on such violence in this jurisdiction).13 The National Women’s
Council of Ireland produced a report on sexual and other violent crimes against women and
children in 1996, recommending the establishment of a national system for the collection of
statistics on violence against women and children, in order to ascertain the true level of such
abuse.14 A national survey on domestic violence conducted by Women's Aid in 1995 concluded
that the rate of reported violence in the home underestimated the true level of such violence.15 A
further study published by Women’s Aid in 1999 made various recommendations aimed at
improving the experiences of victims of domestic violence in the court room.16 Victims of
domestic violence tend to find the language and procedures of the legal process highly
M. Leane, S. Ryan, C. Fennell and E. Egan, Attrition in Sexual Assault Offence Cases in Ireland: A Qualitative Analysis
(Government Publications, 2001).
9
10
I. Bacik, C. Maunsell, and S. Gogan, The Legal Process and Victims of Rape (Dublin Rape Crisis Centre, 1998).
H. McGee, R. Garavan, M. de Barra, J. Byrne and R. Conroy, The SAVI Report: Sexual Abuse and Violence in Ireland
(Dublin Rape Crisis Centre, 2002).
11
12
H. McGee, R. Garavan, C. Leigh, C. Ellis and R. Conroy, SAVI Revisited (Dublin Rape Crisis Centre, 2005).
NWCI, Report of the Working Party on the Legal and Judicial Process for Victims of Sexual and Other Crimes of Violence Against
Women and Children (National Women’s Council of Ireland, 1996).
13
14
NWCI Report, as above.
Kelleher & Associates with M. O'Connor, Making the Links: Towards an Integrated Strategy for the Elimination of Violence
Against Women in Intimate Relationships with Men (Women's Aid, 1995).
15
Kelleher & Associates with M. O'Connor, Safety and Sanctions: Domestic Violence and the Enforcement of the Law in Ireland
(Women's Aid, 1999).
16
14
intimidating, and the study recommended that supports be provided to victims in the courtroom
to ensure that they feel greater safety when giving evidence against their abusers.
Findings of Existing Research on Victims
What little empirical research on crime victims that has been done to date has tended to show
that, at a minimum, victims need to be kept informed throughout the criminal process; they need
help in understanding the court system, legal language and legal procedures; and they often
require practical support in attending court and giving evidence at the trial itself.
Whether victims do in fact receive adequate levels of information, help and support from the
services available to them at present is the question that this research seeks to answer, through
surveying a range of victim support organisations currently operational nationally.
Further research seeking responses from victims themselves to this question is essential to
gaining a more comprehensive understanding of the needs of victims of crime in Ireland.
Methodology
For the purpose of this research, a questionnaire (see Appendix 1) seeking empirical information
on the range and quality of services available to victims of crime in Ireland was sent out in June
2007 to 43 organisations listed on a database supplied by the Commission for the Support of
Victims of Crime. Thirty-two of those organisations had received funding from the Commission
in 2006 (see Appendix A to Commission Annual Report 2006), and a further five received
Commission funding for the first time in 2007.
Organisations were requested to return
completed questionnaires by the end of July 2007.
By the designated date, a total of 34 organisations had returned completed questionnaires (for list
of organisations, see Appendix 2). This represents a very high response rate of 79%.
The questionnaire was formulated in order to ascertain information about:

Ease of access to support services for victims of crime

The uptake of the support services by victims

The policies and practices of such services

The evaluation, both external and internal, of the services

The self-assessment of service providers
15

Identification of gaps by service providers

Suggestions for improved services and service delivery
In devising the questionnaire, assistance was gained from a reading of the 2005 and 2006
evaluations provided to the Commission by 22 funded organisations (copies provided by the
Commission).
Findings
(a)
Range of Services Offered
Out of the 34 organisations which responded to the questionnaire, the majority had previously
submitted evaluation reports to the Commission. Most groups that had submitted evaluations in
2006 had not changed their services substantially since then, although five groups reported an
expansion or extension of the services they now offer to victims. In particular, the National
Crime Victims Helpline reported an extensive development of the helpline, a national publicity
campaign, and a surge in calls received from victims.
Most groups surveyed offer a range of different services to victims. Almost all of them provide
court accompaniment services as part of the range of services they offer, and they have tended to
use the funding provided by the Commission to provide training for those volunteers who carry
out the accompaniment work. Other services provided in some cases included accommodation
(offered in particular by organisations supporting survivors of domestic violence), counselling,
advocacy, helping with liaison between victims and State agencies like An Garda Síochána and so
on.
Of the small number of organisations which do not provide court accompaniment services, three
(AdVIC, Support After Homicide and the Centre for Parentally Abducted Children) offer more
general advocacy and information services to specific groups of victims; one (the Irish Tourist
Assistance Service) provides short-term practical assistance to tourists who are victims of crime;
another (the National Crime Victims Helpline) provides a phone line service; Barnardo’s offers
bereavement counselling and a helpline to children and families bereaved by homicide; the
Dundalk Counselling Centre provides counselling; One in Four offers general supports to
women and men who have experienced sexual violence; and Ruhama offers general practical
support to victims of trafficking.
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(b)
Adequacy of Services Offered
Unsurprisingly, the vast majority of respondent organisations rated the service received by
victims of crime in their area as inadequate, with only five of the 34 respondents describing the
service as adequate.
The reasons given for inadequacy were many and varied, but some common themes emerged.
Referral to organisations from An Garda Síochána
First, the most striking problem identified by the groups generally relates to the lack of
information for victims, and the difficulties that victims encounter in accessing any support
services. Many groups commented on the lack of information made available to victims about
the availability of existing services, and in particular about their perception of a low referral rate
to their services from An Garda Síochána and other statutory agencies. The Irish Tourist
Assistance Service estimates, for example, that less than 10 per cent of tourists who are victims of
crime are referred to them. Many groups also highlighted differing rates of referral by different
State agencies in different areas as a problem.
The issue of referrals is, however, a difficult one. Due to the constraints of data protection law,
An Garda Síochána do not provide victim support organisations directly with the names of
victims who have reported crime to them. Rather, they supply the names of the organisations to
the victims, who may then choose whether or not to contact the organisation or organisations
relevant to them. Clearly, this may result in a relatively low number of individual victims making
contact with victim support organisations. Part of the difficulty in referrals in the past has been
the fragmented nature of services offered around the country, and the absence of a central
service to which all victims could be directly referred.
That is changing, however. The stated policy of An Garda Síochána in respect of referrals is that
each member of An Garda Síochána who takes an incident report from a victim of crime will
inform that victim of available support services, and provide them with the National Crime
Victims Helpline number, in writing.
Where the victim is a tourist, then contact is made immediately by the member with the Irish
Tourist Assistance Service (ITAS) by telephone, with the victim's expressed consent, followed by
a written referral.
17
Once a victim has reported a crime to An Garda Síochána, a letter is completed and forwarded to
the victim informing him/her of the name of the investigating Garda, how to contact the Garda,
details of the PULSE Incident Number, and the number of the Crime Victims Helpline or ITAS
as appropriate. A full list of organisations providing support for victims of crime is attached to
this letter (See Appendix 3 for more details about the Garda policy on referrals and supports for
victims of crime).
Geographical Inconsistency in Availability of Services
Another issue raised by many respondents relates to the inconsistency in the availability of
services, depending on geographical area.17 The National Crime Victims Helpline stated in their
response that:
‘Many areas of the country, including Galway, Offaly, Leitrim, Sligo, Wicklow, Westmeath, Cavan,
and vast areas of Dublin have no face-to-face support service that we can refer them on to.’
Other groups also identified the uneven geographical spread of services for victims as a particular
problem.
General Difficulties with Adequacy of Services
The difficulty with accessing services aside, other issues raised by many organisations included:

the lack of funding of victim services, and insecurity with funding levels;

inadequate courthouse facilities for victims;

lack of protection for victims’ rights in law;

delays in the criminal justice system;

lack of sensitivity from judges and other legal professionals;

the insufficient number of full-time victim services available;

language and literacy problems for victims;

failure to provide adequate information to victims about the legal process
The National Crime Victims Helpline noted the need for specialist or professional interventions,
perhaps from a counsellor or social worker for many of the vulnerable and isolated victims who
call their helpline. The NCVH also noted that many callers have suffered financial losses as a
See further the map showing locations of non-governmental organisations funded by the Commission in 2006,
Commission Annual Report for 2006, p. 16.
17
18
result of the crime, and suggested that an emergency service should be put in place to cover, for
example, the need to fix broken windows or doors after a burglary where elderly victims have
difficulty in doing this themselves.
Apart from these general issues, other issues particular to victims of domestic violence and sexual
crime were raised by groups specialising in those areas. The lack of contact between the victim
and the prosecutor was cited as one problem; the absence of support for victims in the
courtroom; the lack of consistency in sentencing and the reduction of charges through informal
‘plea-bargaining’ were also raised. One in Four, in giving a comprehensive list of problems based
directly on clients’ experiences, noted a particular difficulty with lack of garda training in taking
initial statements from victims reporting sexual abuse. Low reporting rates, high attrition rates
and low conviction rates were cited as particular problems by rape crisis centres (see, for
example, the submission made by the Dublin Rape Crisis Centre to the Oireachtas Joint
Committee on Child Protection, November 2006). Intimidation by local communities where
sexual abuse was reported was also cited as a problem.
Domestic violence support agencies raised as particular problems the lack of emergency
accommodation for victims; the lack of legal protection for former co-habitees where a
relationship has broken down; delays in accessing legal aid; and the delay between the granting of
protection and barring orders. Ruhama reported particular difficulties with victims of trafficking,
as they lack statutory protection and are often not identified as crime victims by the authorities.
(c)
Development of Services
The respondent organisations were asked what additional services they would like to be able to
offer victims, and how they envisage the services they provide developing in three years’ time.
Again a number of common themes emerged from the answers provided. Most respondents
would like to expand their services in a number of ways. First, many stated the aim of expanding
geographically to ensure greater coverage throughout their county, for example. Secondly, many
stated their desire to expand the length of time during which their services are available (most are
available only on a part-time basis at present). Thirdly, many wish to expand their service to
cover more diverse client communities, and require assistance with language training, for
example, in order to do so.
Many organisations also stated that they would like to increase their visibility in three years’ time
to ensure that prospective clients were more likely to be aware of the services they offer. On a
related point, many said that they would seek to improve liaison with An Garda Síochána and
19
other State agencies to ensure a more efficient and consistent system of referrals. Many also said
they would like to increase the number of volunteers and/or staff in their organisation. Some
identified the need for very practical developments, such as the provision of victims’ rooms in
courthouses (the Court Support Services suggested these rooms should also have catering
facilities); assistance with childcare or travel for victims attending court; and the an increase in the
frequency of family court sittings to reduce delays in domestic violence cases.
The National Crime Victims Helpline stated that in three years’ time it envisages providing an
emergency service for application of emergency funds and emergency property repairs for
victims. This would be supported by a rapid response call out service to respond to the
immediate needs of some crime victims, linked with an advocacy service.
Some groups stressed the need to develop liaison among victims’ support groups, and to work
with the Courts Service to develop a more co-ordinated approach to victim support services.
Finally, some groups had very specific development goals. AdVIC, for example, is seeking a
change in legislation governing the conduct of homicide trials. The Rape Crisis Network of
Ireland is seeking to expand its accompaniment services to enable accompaniment of victims to
Sexual Assault Treatment Units. The Dublin Rape Crisis Centre has a detailed development plan
including a commitment to commissioning further research into improving the rights of victims
of sexual violence.
(d).
Role of the Commission for the Support of Victims of Crime
Respondents generally saw the role of the Commission at present as being a rather limited one.
Most emphasised its role in disbursing or administering State funding for victim support service
providers. Many also stressed the Commission’s role in developing the provision of a framework
of support services for victims. For example, the National Crime Victims Helpline stated their
understanding that:
‘..the current role of the Commission is to disburse funding to organisations that provide support for
victims of crime and to develop a framework for victim support services into the future.’
The Drogheda Women’s Refuge summed up the Commission’s role as being ‘one of supporting the
supporters of victims.’
20
Other organisations also mentioned the liaison role of the Commission, in particular liaison
between non-governmental organisations and statutory agencies. Others again saw the
Commission as having a role currently in influencing public policy on victims of crime, and in
raising awareness about the difficulties faced by victims. A detailed description of a three-fold
role for the Commission was provided by Adapt, as follows:
‘to act as a catalyst to encourage the development of locally based support services for victims; to highlight
gaps in services/policies and bring those to the attention of relevant policy makers; to promote partnership
between NGO’s and Court services.’
Apart from providing financial support, the Sligo Domestic Violence Advocacy Service saw the
Commission’s role as being:
‘To gather information from local groups/agencies on victims’ experience of accessing support, protection
and justice. To use this information to influence policy, practice and service provision.’
Finally, only two respondents mentioned the role of the Commission in reviewing the Victims’
Charter. One group (Victim Support) summed up their understanding of the current contribution
of the Commission somewhat negatively as being ‘fragmentation of services.’
(e)
Future Development of the Commission’s Role
When asked how they envisaged the role of the Commission or an equivalent body developing in
three years’ time, many groups provided very detailed suggestions or recommendations. The need
for the Commission to co-ordinate stronger communication links between victim support groups
and statutory agencies was stressed. Many groups emphasised in particular that the Commission
must work to strengthen the referral procedure for victims by An Garda Síochána to local victim
support groups, to ensure that victim support groups become part of the criminal justice process.
Several groups mentioned the need for the Commission to press for improved facilities in
courtrooms. Some asked for consultation and seminars to be held on a regional basis to facilitate
attendance by representatives of groups based outside Dublin, or, at least, more local meetings
with Commission representatives. The need for the Commission to increase awareness among
victims of the services available to them was also stressed by many respondents.
21
Other groups suggested the Commission should conduct research into the effects of crime upon
victims, and should engage in more lobbying of Government. Some suggested the Commission
should have a role in promoting reconciliation or victim-offender mediation.
The need for the Commission or an equivalent body to provide greater security of funding to
individual victim service providers was emphasised. Similarly, respondents suggested that it
should also have a role in preventing the duplication of services provided by local groups, and in
maintaining uniform standards in services provided. The NCVH suggested that the Commission
should be a statutory body with power to effect change in the interests of crime victims, which
would work with senior Garda management and provide a strong voice for victims of crime,
while overseeing the development of a comprehensive and co-ordinated service for victims. This
the NCVH suggested should involve the regulation, evaluation and monitoring of victim services.
Similarly, the Rape Crisis Network of Ireland (RCNI) recommended that the Commission be
given statutory powers to protect and promote the rights of victims.
AdVIC proposed that the Commission should develop a more professional network of support
groups, and that it should provide funding based on performance evaluations. Similarly, Mayo
Women’s Support Services suggested that the Commission should:
‘put in place mechanisms to ensure responsibility and accountability by all agencies, bodies/groups
engaged in response/support to victims of crime’.
Support After Crime Services similarly stressed the role of the Commission as the body to which
local support groups should be accountable. The same group argued that the Commission should
provide funding at the start of each year to enable better planning by local groups; and proposed
that feedback should be given to groups from the evaluations and submissions they had provided
to the Commission. Other respondents suggested that the Commission should conduct on-site
visits to each of the funded groups to ensure that good quality services of a uniformly high
standard are being offered to victims.
Amen suggested that the Commission should provide training to volunteers from different
groups on legal matters, and on court accompaniment procedures. Other respondents also
mentioned the need to standardise the training of those engaged in providing court
accompaniment services.
Cuan Saor Women’s Refuge suggested that the Commission should provide counselling services,
a witness support service and develop an information booklet for victims as well as lobbying for
22
improved facilities in court buildings. The Letterkenny Women’s Centre suggested that the
Commission should provide funding for continuing professional development for counsellors, to
enable the maintenance of their accreditation.
One in Four suggested that the Commission should engage in ongoing evaluations of victims’
experiences of the criminal justice system, and that it should consider the funding of
psychotherapy and emotional support for victims of sexual crime in particular. OSS Cork
suggested that the Commission should develop a support framework for victims with a more
long-term frame of reference. Women’s Aid Dundalk suggested that the Commission should
provide training to court personnel and particularly judges. The Dublin Rape Crisis Centre
suggested that the Commission should provide language assistance through interpreters, and
pursue legal change in support of victims’ rights.
The Irish Tourist Assistance Service emphasised that the Commission should seek to develop
comprehensive services for victims, noting that:
‘currently the support for victims of crime in Ireland is quite fragmented … there is currently no
national/co-ordinating body to inform policy development/legislative change on issues affecting victims of
crime and to develop links at European and wider international level.’
Respondents were not directly asked to comment on the contribution the Commission had made
to their activities, but many respondents were very positive in their recognition of the
Commission’s role generally. For example, the Dublin Rape Crisis Centre welcomed the
consultative process the Commission engaged in through various initiatives in 2006, and stated
that they also appreciated the work done by the Commission in developing a framework of
services for victims. Similarly, in their response Ascend stated that being able to provide a court
accompaniment service had been:
‘..a wonderful addition to our service – it has greatly enhanced the outcome for women – and the fact that
domestic violence is seen by the Commission as a crime. We welcome our involvement with the
Commission as the legal aspect of the work is a difficult process and women often feel exposed and
exploited in the process.’
The Kerry Refuge stated that:
‘The work of the Commission since its establishment has had a considerable and positive impact on
service provision for our clients. I hope that the momentum will be carried forward in the years ahead.’
23
The Court Support Services stated that:
‘The Commission took on a very difficult role so on behalf of the Courts Support Service and all of the
victims we have accompanied to Court we thank them for what they have helped us to achieve so far.’
Only one organisation was critical, describing the current system as ‘disastrous’, and stating further
that ‘the current system is .. miserably failing all victims. Fragmentation was/is unnecessary and counterproductive.’
(f)
Priorities for the Commission in Allocation of Funding
Respondents to the questionnaire were asked to rank out of 1 – 5 points, with 1 as the most
important, the priorities for the Commission in the allocation of their funding from a list of
activities provided. The list was as follows (the order reflects the number of highest ranking
scores given by respondents to each activity):

Support for input into legal change for victims’ rights

Funding of groups on a three-year rather than an annual basis

Provision of advocacy services for victims generally

Support for court accompaniment services

Support for groups providing counselling to victims of crime

Provision of training to victim support groups

Provision of networking or representation functions for local/regional groups

Other (please specify)
A small number of respondents preferred not to give a ranking, stating that all the activities listed
are equally important. Only three respondents specified a particular activity under the ‘Other’
heading. Those ‘other’ activities so specified were:

Links with gardaí

Dissemination of information about international best practices

Awareness raising about the Commission’s role
Perhaps surprisingly, the activity which most respondents (9) ranked most highly was ‘support for
input into legal change for victims’ rights’, although this may reflect particularly the views of the
24
respondent organisations dealing with victims of domestic violence, rape and sexual abuse. The
activity with the next highest ranking (seven groups gave it their highest ranking) was ‘funding of
groups on a three-year rather than an annual basis’. The need to provide advocacy services for victims,
and support for court accompaniment services, also received high rankings generally.
The activity ranked as least important by most groups was the ‘provision of networking or representation
functions for local/regional groups’. This low ranking for the networking function was also reflected in
the rather notable absence of any reference to liaison with other victim support groups in the
responses provided by most organisations to the questionnaire generally. Despite the critical
reference to ‘fragmentation’ in the Victim Support response, it could be concluded that few groups
seem to require any support for creation of formal networks with other organisations working in
their area.
‘Provision of training for victim support groups’ was also given a low ranking, with only five respondents
placing this within their top three priorities.
Many groups expressed concerns about the lack of uniform standards across support services;
and about the need for the Commission to introduce mechanisms to prevent the duplication of
services on offer to victims.
(g)
Other Key Issues Faced by Victim Support Service Providers
In the final question asked in the survey, respondents were asked to identify any other key issues
faced by victim support services. The most frequently raised issues related to problems with the
relationship with An Garda Síochána and to a lesser extent with the judiciary and court service
personnel. In particular, respondents pointed out:

The need for a more consistent response by gardaí to victims’ needs

The need for victim support services to have closer links with the gardaí, court service
personnel and prosecution services

A more formalised referral procedure whereby gardaí would routinely refer victims to
support groups in their area

More training for gardaí, judges and court services staff on dealing with victims

Greater sensitivity to the needs of victims from gardaí, judges and court services staff

Adherence by gardaí to domestic violence policies

The lack of understanding among judges, gardaí and court service personnel about the
nature of domestic violence in particular
25
A second and related issue raised concerned practical difficulties with the courts and court
processes, with respondents citing in particular:

The need to tackle long delays in court proceedings, and to provide clearer
information to victims about dates and times of court cases

The need to improve physical facilities in court buildings to ensure some space
is set aside for victims

The need to ensure greater awareness of and more formal recognition for court
accompaniment service providers within the criminal justice process
More specific issues raised by respondents included the following:

The need for shorter waiting lists for counselling for victims

The need to introduce multi-annual funding for victim service providers to
ensure greater financial security for services

The provision of enhanced supports for particularly vulnerable victims, such as
rural women and non-Irish nationals

The lack of information provided to families of homicide victims about inquests
Some groups raised concerns about the changing nature of crime, with specific reference to the
use of information technology in crime; and about perceived increases in the level of violence
being perpetrated against victims. Particular concern was expressed by the RCNI about a fall in
the rates of reporting of sexual crime, and about serious attrition rates in the prosecution of sex
offences.
Many respondents commented on the changing profile of victims, with an increase in non-Irish
national victims, and concerns were expressed about the difficulty often experienced by such
victims in accessing support services. Indeed, the specific needs of those victims of crime who
are not Irish nationals might best be identified through establishing contact with groups
representing the Ireland’s ‘new communities’.
Finally, some respondents proposed innovative positive changes to improve services to victims.
One recommended that the Commission logo should be used by any group in receipt of
Commission funding, in order to increase awareness among victims and potential service users of
the work of the Commission. Another suggested the provision of funding for internships by
volunteers from victim support groups within An Garda Síochána, with the aim of improving
26
awareness among the police of supports available for victims. Others referred to the need for
further research into the experiences of victims of crime. Two respondents advocated the
establishment of an Ombudsman for Victims.
Conclusions
The responses provided indicate that a wide range of groups currently exist providing diverse
forms of support to victims of crime in Ireland. However, the adequacy of services available to
victims clearly differs greatly, depending in particular upon geographical area and upon the type
of offence inflicted, with large gaps in the provision of supports remaining.
The biggest problems for those groups providing support to victims appears to be a lack of
visibility for their services; and a difficulty with securing referrals to their services from An Garda
Síochána. A more consistent, formalised policy of referral is necessary to overcome this problem.
The further development of the National Crime Victims Helpline would certainly assist in
addressing the problem of low visibility for victim services and the stated difficulties for victims
in accessing information about services, but there will remain a need for a formal, direct referral
procedure to victim service providers from garda stations.
Victim support groups are clearly very concerned that support services are not available to crime
victims in every area nationally. Even where supports are provided in particular locations, many
groups express the view that victims are often not made aware of them, since there is no
systematic referral procedure in place from statutory agencies.
The survey responses strongly suggest that the Commission or an equivalent body should put
measures in place to ensure a more efficient system of referrals from An Garda Síochána in
particular to local victim support groups.
Practical difficulties remain with inadequate courtroom facilities, long delays in court
proceedings, and lack of awareness among victims about legal procedures. The limited nature of
the Criminal Injuries Compensation Scheme might have seemed an important issue; but no
victim support group raised this issue in their responses, perhaps because the scheme operates
outside of and independently from the criminal process. However, the NCVH expressed more
general concern about inadequate resources for victims left facing short-term financial loss as a
result of crime.
27
The survey responses do not indicate any strong support for the strengthening of networks
among individual groups at a local or regional level, but they suggest the need for the
Commission to ensure national co-ordination of the services offered by local victim support
groups. Many respondents expressed real concern that without such national co-ordination,
services provided to victims may lack consistency or be duplicated unnecessarily.
28
4.
IRISH LAW AND PRACTICE
Introduction
Historically, the victim played an active role in our system of criminal justice. Up to the early part
of the nineteenth century, an onus rested on the victim of crime to privately prosecute the
offender in the courts.18 A system of this kind, which assumed that the victim was financially and
psychologically capable of pursing the offender, was arbitrary, unjust and, ultimately, ineffective
at combating crime. These deficiencies presaged a major shift in criminal justice in favour of
public prosecution. Under this model, responsibility for the investigation of crime and the
prosecution of offenders lies squarely with the State. The victim is not a formal party to the
proceedings and his or her role is essentially limited to reporting the alleged offence to the gardaí
and testifying for the prosecution at trial.19
Concern about the position of the victim in the criminal process has grown over the past several
decades and has taken on a degree of urgency in recent years. Starting in the 1980s, enhanced
awareness of the needs of victims led to the establishment of non-governmental victim support
services.20 Operating at local and national level, these organisations provide a range of services to
victims including information and advice on interaction with the gardaí, the courts and the media,
court accompaniment, and counselling. State support for such activities has increased over the
years, primarily through the establishment of formal liaison between non-governmental
organisations and governmental agencies,21 the provision of State funding,22 and the creation of a
national hotline.23
Developments have also occurred in law and policy.
A limited, non-statutory Scheme of
Compensation for Personal Injuries Criminally Inflicted was established in the wake of the
L. McGovern, “The Victim and the Criminal Justice Process” in P. O’Mahony, ed., Criminal Justice in Ireland (IPA,
Dublin, 2002) 393 at p.393.
18
DPP v SH [2006] 3 IR 575; Fowler v Conroy, High Court, unreported, 27 July 2005; DPP (Walsh) v Cash, High Court,
unreported, 8 March 2007.
19
20
Notably, Victim Support in 1985.
21
Such as the Gardaí, the Department of Justice, Equality and Law Reform, and the Courts Service.
Commission for the Support of Victims of Crime, established in March 2005 following the decision of the Minister
to withdraw funding from the Victim Support organisation with effect from 31st March 2005.
22
23
The Crime Victims Helpline, established in 2005 (see www.crimevictimshelpline.ie).
29
Dublin and Monaghan bombings in 1974.24 The incorporation of Victim Impact Statements into
the sentencing process was included in the Criminal Justice Act 1993.25 Special measures to assist
victims of violent and sexual offences when testifying at trial were introduced in the Criminal
Evidence Act 1992.26 A Charter of Victims’ Rights in the Criminal Justice System was published
by the Department of Justice, Equality and Law Reform in 1995.27 Some of these and other
initiatives were the product of social and political reform efforts. Other measures were influenced
by European and international developments.28
There has been no comprehensive, dedicated legislative strategy or governmental policy in
relation to victims. Reforms have tended to be specific, ad hoc and piecemeal. More wide-ranging
initiatives have enjoyed limited, if any, success. The Charter of Victims’ Rights has proved an
important informational resource but it does not contain judicially enforceable rights. A Victims
Rights Bill, introduced by Fine Gael in 2002, purported to fill this lacuna but, ultimately, was not
enacted.29
The Criminal Justice System
The Irish system of criminal justice is rooted in the English common law tradition. Its defining
characteristics are its adversarial and accusatorial nature which contrast starkly with the European
inquisitorial model of justice.30 The court adjudicates on the issue of whether the accused is
guilty of a criminal offence, a proposition that is asserted by the prosecution and contested by the
defence. Where the accused is charged with a minor offence, a judge generally acts as the
adjudicator.31 In keeping with long standing tradition, the adjudication of non-minor offences is
entrusted to a jury of the accused’s peers.32 The onus of proof rests on the prosecution to prove
Scheme of Compensation for Personal Injuries Criminally Inflicted, details available at www.justice.ie. This scheme
was amended in 1986 to exclude the making of awards for pain and suffering.
24
25
S.5 of the Criminal Justice Act 1993, No.6 of 1993.
26
Parts III and IV, No.12 of 1992.
27
Victims’ Charter and Guide to the Criminal Justice System, available at www.justice.ie
28
For example, within the UN, the Council of Europe and the European Union (EU).
Victims Rights Bill, No.5 of 2002, sponsored by Deputy Alan Shatter. Fine Gael also published proposals for a
Victim’s Charter at its Ard Fheis in March 2007. See www.finegael.ie/policy
29
30
See generally D. Walsh, Criminal Procedure (Thomson Round Hall, 2002) at chap.1.
31
Art. 38.2 of the Constitution.
Article 38.5. Arts. 38(3) and (4) make exceptional provision for non-jury trials by Special Courts and Military
Tribunals. The current Special Criminal Court was established in 1972 pursuant to a proclamation under Part V of the
Offences Against the State Act 1939.
32
30
all elements of the offence beyond a reasonable doubt.33 In the adversarial contest, each side
presents evidence and argument in support of its case in accordance with established rules of
procedure and evidence. The presentation of evidence involves the calling of witnesses, each of
whom is examined by the party calling him or her. The opposite side is provided with an
opportunity to contest that evidence by cross-examining the witness and presenting independent
rebuttal evidence.
Our system of criminal justice is grounded in a commitment to procedural due process, i.e., to the
proposition that an individual may not be punished for criminal conduct without the benefit of
procedures that are fair and respectful of the individual’s basic rights.34 This commitment is
enshrined in Article 38.1 of the Constitution which recognises the right of a criminal accused to a
trial in due course of law.35 This provision has been construed by the courts as a mandate to
safeguard basic principles of natural justice including the principle that an accused is entitled to
the presumption of innocence,36 the principle that an accused cannot be tried a second time for
the same offence,37 and the principle that the accused cannot be compelled to give evidence on
his or her own behalf at trial.38
The victim is not a formal party to criminal proceedings; as noted above, his or her contribution
is generally limited to reporting crime to the gardaí and testifying for the prosecution at trial.
Although victims’ interests and entitlements are frequently characterised in terms of rights, it is
clear that the victim has no enforceable right under Irish law to compel the State to investigate an
allegation of crime or bring the offender to justice.39
At common law, any private individual capable of giving information about the commission of
an offence, such as the victim of that offence, could prosecute as a ‘common informer’. This
right to pursue a private prosecution remains, but common informers are no longer competent to
Woolmington v DPP [1935] AC 462; McGowan v Carville [1960] IR 330. The burden shifts to the accused in exceptional
circumstances, e.g. where the accused raises the defence of insanity.
33
34
Re Haughey [1971] IR 217; State (Healy) v Donoghue [1976] IR 325; Donnelly v Ireland [1998] 1 IR 321.
35
See also Article 6 of the European Convention on Human Rights which was incorporated into Irish law in 2002.
36
People (DPP) v D O’T [2003] 4 IR 286; O’Leary v AG [1993] 1 IR 102.
37
People (DPP) v O’Shea [1982] IR 384.
Heaney v Ireland [1994] 3 IR 593; Re National Irish Bank [1999] 3 IR 145. See also s.1 of the Criminal Justice (Evidence)
Act 1924.
38
The discretion on the part of the Director of Public Prosecution to institute criminal proceedings is a well publicised
illustration of this reality. See Walsh (2002) at pp.614-20.
39
31
prosecute charges on indictment.40 In practice, few victims mount private prosecutions through
the District Courts despite their entitlement to do so.
Vindicating the victim’s interests remains a key objective of the process but one which is pursued
vicariously by the State.41 The interest of the victim in the conduct and outcome of trial
proceedings is assumed to coincide with that of the prosecution and, by extension, society at
large. However, as Mr. Justice Paul Carney has observed, the prosecution does not represent the
victim in any formal sense:
“Victims tend to instinctively feel that counsel appearing on behalf of the prosecution is
‘their barrister’ as they would put it. This is not the case and the prosecution team does
not in any way represent the victim. There may be a coincidence of interest and there
may not. There can be situations where the interests of the victims as they see them and
the interests of the prosecution are diametrically opposed. …”42
Nor is the prosecution assigned the function of accommodating the victim’s unique position and
particular needs in the trial process. The contribution of the victim to the proceedings is at best
secondary, passive and incidental, and it is carried out without formal provision for
representation or support.43
The limited role played by the victim in the criminal process was confirmed by the Supreme
Court in Maguire v Central Mental Hospital.44 The Court refused a request by the applicant Maguire,
who was the relative of two women who had been killed by J.G., a man found guilty but insane
of their murder. Maguire wished to be represented as a party at the hearing of J.G.’s application
for release from detention, in order to argue against his release. In refusing the applicant’s
request, Geoghegan J. commented that:
“…subject to one minor exception and apart from the special statutory provisions
relating to sexual offences, it has never been a feature of our jurisprudence that a victim,
and still less an alleged potential victim, should be given a hearing in the criminal
Section 9(1) of the Criminal Justice (Administration) Act 1924 abolished the right of common informers to
prosecute cases on indictment. See further Walsh (2002) at pp.592-4.
40
DPP v SH [2006] 3 IR 575; Fowler v Conroy, High Court, unreported, 27 July 2005; DPP (Walsh) v Cash, High Court,
unreported, 8 March 2007.
41
42
“The Role of the Victim in the Irish Criminal Process” (2007) J.S.I.J. 7 at p.11.
43
A limited exception for legal representation under the Sex Offenders Act 2001 is discussed below.
[1996] 3 IR 1. The case was linked to the earlier Application of Gallagher [1991] 1 IR 31. In Maguire, the Court applied
an earlier decision in Re Ellis [1990] 2 IR 291.
44
32
process, using that expression in its broadest sense…. in the entire history of the
criminal law and procedure it has never been permitted for a victim to be separately
represented in a criminal trial. Such representation could dangerously compromise the
necessary independence and detachment of the court and jury.”
The legal implications of the lack of a formal role for victims are profound. Courts operate on
the premise that procedural rights vest only in the parties to proceedings, i.e. in criminal
proceedings, the prosecution, the accused and any co-accused. Victims thus labour under a
twofold disadvantage:
first, by virtue of their secondary status, victims do not enjoy the
procedural rights afforded to parties; second, victims have been largely excluded from a vibrant
judicial discourse about those self same procedural rights.
The relationship between the
prosecution and the defence has shaped the development of the law relating to criminal justice.
Redressing the natural imbalance between the power and resources of the prosecution and
defence in the adversarial trial process has been a major concern of the Oireachtas and of the
courts in interpreting the Constitution. As Walsh explains:
“This has generated intense frustration among victims who feel victimised twice
over; once at the hands of the offender and again at the hands of the State by
their virtual exclusion from involvement in the State’s handling of the
prosecution against the accused. Moreover, victims frequently interpret concern
for due process as the State and society showing greater concern for the suspect
offender than for the actual victims of crime.”45
Rebalancing of the Criminal Justice System?
The traditional emphasis on the rights of the defence has come in for criticism in recent years.
The argument has been forcefully advanced that the scales of justice currently tip too far in
favour of the defence and should be rebalanced in favour of the prosecution. This reform
initiative reflects a trend in favour of a crime control model of criminal justice. 46 An important
aspect of its philosophy and substance is the need to raise the profile of victims in the criminal
justice system and to enhance the protection of victims’ rights.
Calls for a rebalancing of the
criminal justice system have already found legislative expression in the Criminal Justice Acts
200647 and 2007.48
45
Walsh (2002) at pp.8-9.
46
D. Walsh, “The Criminal Justice Act, 2006: A Crushing Defeat for Due Process Values?” (2007) 7 J.S.I.J. 44.
47
Criminal Justice Act 2006, No.26 of 2006.
33
In his opening remarks to the Seventh Annual National Prosecutors’ Conference in May 2006,
the Director of Public Prosecutions, Mr. James Hamilton, expressed the view that certain
important aspects of the laws of evidence are loaded against the prosecution in a manner which
gives unfair advantage to the defence. He cited, as an example of a rule that is ripe for
reassessment by the courts, the exclusionary rule, which renders inadmissible at trial evidence
obtained by the gardaí in breach of a constitutional right even if that breach was inadvertent or
due to a mistake that could have been made good at the time. He commented:
“The difficulty is that when probative evidence of this sort is excluded it is not the
Garda Síochána who suffer but the people of Ireland as a whole and the victims of
crime. It is interesting that when the exclusionary rule in its present form was developed
by the courts no mention was made in the case law of the rights of victims or of the
duty of the state to protect those rights through the operation of the criminal justice
system….”49
The Director was prefacing a paper delivered at the Conference by Dr. Paul Anthony
McDermott, B.L., which advanced the thesis that the criminal justice system unfairly advantages
the defence and is in need of rebalancing.50 This theme was taken up by then Tánaiste and
Minster for Justice, Mr. Michael McDowell, in remarks published in October 2006. He observed
that over centuries many fundamental legal principles have been developed to ensure that the
rights and interests of criminal defendants are protected. He continued:
“In broad terms, they have ensured justice was done and seen to be done for those who
came into contact with the law.
However, along the way a consequence of that
development and reform of the law may have been that the needs, concerns and rights
of victims of crime may have unintentionally become secondary to the rights and
protections for the criminal. Somehow it seems that we may now have arrived at a
situation where on occasions the scales of justice are tilted too heavily to one side.
48
Criminal Justice Act 2007, No.29 of 2007.
Director of Public Prosecution’s Opening Address to the Seventh Annual National Prosecutors’ Conference,
Saturday 13 May 2006, available at www.dpp.ie.
49
P. A. McDermott, “Equality of Arms? Balancing the Rights of the Prosecution and the Defence”, Speech to the
Seventh Annual National Prosecutors’ Conference, Saturday 13 May 2006. See also P.A. McDermott, “Has the Time
Come to Recalibrate” Law Soc. Gaz. (April, 2007) 14.
50
34
Unfortunately when that occurs, that imbalance is likely to favour the criminal rather
than the innocent victim all too often.”51
The Minister established a Review Group on Balance in the Criminal Law, chaired by Dr. Gerard
Hogan, S.C. charged with examining a range of issues including the right to silence, evidence of
an accused’s misconduct, the exclusionary rule of evidence, appeals by the prosecution, and
submissions by the prosecution before sentencing. The Group published its Final Report in
March 2007 which made recommendations for changes to various aspects of criminal law and
practice.52 A recurring theme in the Report is the need for greater recognition and vindication of
the rights of the victims. For example, in the Introduction to the Final Report, the Review
Group stated:
“In much traditional analysis, international human rights instruments are designed to
benefit the defendant in a criminal case. But criminal law does not and cannot operate
in a vacuum entirely separated from the victim’s rights, and we emphasise the
fundamental proposition that the prosecution of offenders through the criminal law is a
legitimate and, indeed, essential mechanism for vindicating the human rights of
victims.”53
In the opinion of the Review Group, the rights of the victim under the Constitution and the
European Convention on Human Rights “require a new and invigorated emphasis in the overall
balancing of rights in the criminal justice field.”54 Some of the recommendations of the Review
Group were taken up by the Oireachtas in the Criminal Justice Act 200755 and others may form
the basis of future legislative developments.
It is important to emphasise that the trend in favour of rebalancing the criminal justice system is
controversial. The substantive changes to the law contained in the 2007 Act, together with the
speed with which they were enacted, attracted unprecedented criticism from various quarters,
including the criminal bar. In a speech delivered to a recent conference at University College
“Rebalancing Criminal Justice – Remarks by Tánaiste in Limerick, 20 October 2006, available at
www.justice.ie/en/JELR/print/Speech_rebalancing_criminal_justice
51
52
Balance in the Criminal Law Review Group Final Report (March, 2007), available at www.justice.ie.
53
Id. at p.12 (internal citations omitted).
Id. at p.14. See also G. Hogan, “Reflections on the Balance in the Criminal Law Review Group Report,” Conference on
Rebalancing Criminal Justice in Ireland: A Question of Rights, UCC, 29 June 2007, at p.3, in which the chairperson noted that
the rights of the victim, “a new zeitgeist in the criminal law,” came across forcibly in the submissions made to the
Review Group.
54
55
Such as the provisions relating to the right to silence in Part 4 of the Act.
35
Cork, Mr. Justice Adrian Hardiman, questioned the very need to rebalance the system.56 In a
paper delivered at the same conference, the Chairman of the Review Group, Dr. Gerard Hogan,
signalled a note of caution:
“If the criminal justice system were, therefore, to focus on the rights of victims to the
virtual exclusion of other considerations, there would be a real danger that this would
lead perhaps to the almost inevitable assumption that the accused was presumptively
guilty of the offence and that the purpose of the criminal law was to punish the offender
at the behest of the victim. While the legal system has to improve its engagement with
victims, we must be careful that this does not go down the path of implicit assumptions
about guilt or which takes from the established constitutional liberties designed to
ensure that the criminal trial is not only fair, but is seen to be fair.”57
Legal Protection
There is no express provision in the Constitution safeguarding the rights and interests of the
victim of crime. However, Article 40.3.2 constitutes an indirect source of protection in so far as
it guarantees that the State shall protect from unjust attack, and in the case of injustice done,
vindicate the life, person and property rights of every citizen.58 The Balance in the Criminal Law
Review Group expressed the view that Article 40.3.2 of the Constitution “must imply a right of
victims of crimes affecting their life, person or property to the effective protection of the
criminal law.”59 The scope of such protection, however, is open to debate. For example, the
High Court has held that a victim of crime has no constitutional right to State compensation.60
Despite this ruling, victims of crime may pursue compensation claims against perpetrators in the
civil courts. In July 2007, a father won a landmark civil action for the wrongful death of his
daughter who had been sexually abused as a child.
David Roberts successfully sued his
neighbour, John Bowden, claiming that the defendant’s abuse caused his daughter to develop
psychiatric illnesses and eventually to take her own life. He was awarded €25,395 in the Circuit
Conference on Rebalancing Criminal Justice in Ireland: A Question of Rights, UCC, 29 June 2007, comments reported in The
Irish Times, 30 June 2007. For a sceptical view on the concept of balancing, see A. Ashworth, “Crime, Community and
Creeping Consequentialism” [1998] Crim LR 220 at p.229.
56
G. Hogan, “Reflections on the Balance in the Criminal Law Review Group Report,” Conference on Rebalancing Criminal
Justice in Ireland: A Question of Rights, UCC, 29 June 2007, at p.4.
57
58
Art. 40.3.2. of the Constitution. G. Hogan and G. Whyte, The Irish Constitution, 4th ed. (2005).
59
Balance in the Criminal Law Review Group Final Report (March 2007) at p.12.
60
A.D. v Ireland [1994] 1 IR 369.
36
Court, and has since requested the DPP to re-open the question of the possible criminal
prosecution of Bowden.61 Instances such as these, in which victims secure compensation through
civil proceedings taken against the alleged offender, are rare, however.
There is no single, comprehensive statute dedicated specifically to the role of victims in the
criminal justice system. The Charter of Victims’ Rights published by the Department of Justice,
Equality and Law Reform in 1995 (discussed further below) is a wide-ranging instrument but
does not contain statutory rights and obligations. Moreover, some of its provisions concern
practical issues that may not be suited to primary legislation. The European Convention Act
2003 incorporates the European Convention into Irish law, and this will have an impact for
victims’ rights, as discussed further below.62
As noted above, several statutes in the general field of criminal justice impact directly or
indirectly on the rights and interests of victims. These include the Criminal Evidence Act 1992,
the Criminal Justice Act 1993 and the Criminal Justice Act 2006. The application of these
miscellaneous statutory provisions to victims is discussed below.
In recent years, the courts have placed increasing emphasis on the rights of victims and society at
large in the prosecution of offenders. For example, in B v DPP, Denham J. recognised the need
to balance the defendant’s right to reasonable expedition in the prosecution of an offence with
“the community’s right to have criminal offences prosecuted.”63 These sentiments have been
echoed in subsequent cases such as Scully v DPP64 and People (DPP) v Kelly.65 In the recent case of
DPP (Walsh) v Cash, 66 Charleton J. noted in the context of the exclusionary rule of evidence:
“Any system of the exclusion of improperly obtained evidence must be implemented on
the basis of a balancing of interests. The two most fundamental competing interests, in
that regard, are those of society and the accused. I would also place the rights of the
victim in the balance.”
61
See, e.g. “Father in Plea to DPP After Civil Suit Award” Irish Times 6 August 2007, p.2.
62
See Chapter 4.
63
[1997] 3 IR 140 at 196.
64
[2005] 1 IR 242.
65
Supreme Court, unreported, 4 April 2006.
66
High Court, unreported, 8 March 2007 (Charleton J.). Case currently under appeal.
37
A Victims’ Charter
In 1995, the Department of Equality, Justice and Law Reform published a Victims Charter and
Guide to the Criminal Justice System.67
As its title suggests, the document is essentially an
informational source for victims of crime. In the Foreword, the then Minister for Justice stated:
“This Charter is, as promised, comprehensive in nature and draws together for the first time, all
the elements of the criminal justice system from the victim’s perspective.”68 Five of the ten
chapters that comprise the Charter contain contributions from various State agencies involved in
the investigation and prosecution of crime, such as the Gardaí, the DPP, the courts, the
Probation and Welfare Service. There are also contributions from the Coroners Service, and
from Victim Support.
Each of these seven chapters briefly describes the function of the agency in question, outlines the
services that the agency provides for victims, and lists the appropriate entity with whom
complaints about the functioning of the agency can be lodged. For example, Chapter 2, entitled
the “Courts Charter”, introduces the reader to the various different courts, explains the basics of
the adversarial jury trial, and identifies characteristics of the system that are particularly pertinent
to victims, such as the concept of bail, and the existence of restrictions on the reporting of trials
involving sexual offences. The chapter outlines ways in which the Courts Service demonstrates
its commitment to supporting victims, including the provision of facilities in court buildings, and
the expanded use of video link testimony. The Chapter closes by naming the bodies to whom
victims may refer in the event that they are “unable to secure acceptable levels of service from
any particular court office.”69 Each chapter follows the same basic pattern, providing a brief and
very basic snapshot of one actor within the criminal justice system. The style is descriptive and
the language positive and non-critical.
There are two additional chapters in the Charter which introduce the reader to substantive, legal
aspects of the criminal justice system. Chapter 8, entitled “Victims and the Law – A Summary of
Recent Legal Provisions” summarises in point form provisions from relevant legislation, such as
the Criminal Evidence Act 1992, the Criminal Justice Act 1993, and the Bail Act 1997. Again,
the chapter identifies the protections provided by these miscellaneous provisions without
offering any analysis of the legal regime in general or the operation of these provisions in
particular. Chapter 9 is styled “Compensation for Victims” and contains just two brief
Department of Equality, Justice and Law Reform, Victims Charter and Guide to the Criminal Justice System (1995),
available at www.justice.ie.
67
68
Id at p.2.
69
Id. at p.11.
38
paragraphs, the first on the Criminal Injuries Compensation Tribunal, and the second on court
orders.
The Charter concludes with a chapter listing “Useful Addresses and Telephone
Numbers”, primarily relating to the agencies discussed in the earlier chapters.
The Department of Justice’s Victims Charter does not purport to be a legal document. It does not
constitute a statement of victims’ legal rights; indeed, the language is couched in terms of victims’
entitlements and the very reference to the possibility of victims complaining about inadequate
action on the part of State agencies underscores the absence of enforceable obligations. Thus,
although the Charter introduces victims to the criminal justice system, it does not provide a
comprehensive account of their legal position within that system. Unlike most charters, it does
not define their rights under law (limited as they are), nor the methods by which any such rights
may be enforced. But if the Charter is not truly descriptive of the position of victims, neither is it
prescriptive -- it makes no attempt to promote victims’ rights or to establish aspirational
standards for their protection within the criminal justice system.70 In substance and tone, the
Charter is simply a statement of relevant government services which implicitly defends the status
quo. The Charter has not been updated in recent years, but since 2005 the Commission for the
Support of Victims of Crime has been consulting with interested parties in the context of
reviewing the provisions of the Charter.71
In 2002, Fine Gael Deputy Alan Shatter introduced a Victims Rights Bill.72 The purpose of the
Bill was to make provision for the rights of victims and their immediate families and for their
treatment within the criminal justice system. For purposes of the Bill, the term “victim” was
defined in broad terms as follows:
“victim
(a) means –
i. every complainant in relation to a crime or offence,
ii. every person who, through or by means of a crime of offence
committed by another person, suffers –
(I) physical injury, or
See e.g. European Forum for Victim Services, Statement of Victims’ Rights in the Process of Criminal Justice (1996) and
Statement of Victims’ Rights to Standards of Service (1998).
70
71
See Commission for the Support of Victims of Crime, Annual Report 2006, at p.5.
Victims Rights Bill 2002, Bill No.5 of 2002, introduced 05/02/2002, lapsed. On 31 March 2007, at the Fine Gael
Ard Fheis, then Fine Gael spokesman on justice, Deputy Jim O’Keefe outlined proposals for a victim’s charter. See
www.finegael.ie/policy
72
39
(II) loss of, or damage to, property
and
iii. if a crime or offence committed by a person results in another
person’s death or in another person being in a state of continuing
unconsciousness or suffering serious intellectual disability, every
member of the immediate family of the other person.
I physical injury, or
II loss of, or damage to, property,
and
(b) for the purpose of section 7 and 8 [providing for the giving of information about
services and remedies, investigation and proceedings], includes every person who,
through or by means of a crime of offence committed by another person, suffers
any form of emotional harm.”73
The Bill contained special provisions dealing with members of the immediate family of victims
who have died or are in a state of unconsciousness or suffering serious intellectual disability.74 It
also allowed a victim to appoint another person to act as his or her representative for certain
prescribed purposes.75
The Bill prescribed certain principles guiding the treatment of victims. Section 5 endorsed the
general proposition that any person who deals with a victim, such as a member of the gardaí,
shall (a) treat the victim with courtesy and compassion, and (b) respect the victim’s dignity and
privacy.76 Under section 6, a victim or member of a victim’s immediate family shall have access
to services responsive to their welfare, counselling, medical or legal needs arising from the
offence. Sections 7 and 8 establish an obligation on the various State agencies to provide
information to the victim about services, remedies, investigation and proceedings as soon as
73
S.2.
Immediate family is defined in s.2 as including a member of the victim’s family who is in close relationship with the
victim at the time of the offence including de facto non marital partners (whether of the same or different sexes). S.3
permits a court to prescribe that a person who is not a member of a victim’s immediate family be treated as if he or she
were and, conversely, that a person who is a member be treated as if he or she is not.
74
75
Ss.33 to 39.
S.5 contained the caveat that “nothing contained herein shall in any way infringe the constitutional rights of an
alleged offender or of an offender.”
76
40
practicable after the victim comes into contact with the agency in question.77 Section 11 made
provision for withholding a victim’s address from the accused or offender in evidence or
information provided to the court.78
The Bill provided for more comprehensive use of victim impact statements in the sentencing of
offenders. Section 16 sets out an affirmative obligation on the sentencing court to take into
account “the effect (whether long term or otherwise) of the offence on the victim or victims”
and, where necessary, receive evidence or submissions. Sections 12, 13 and 14 established a
supporting obligation on the prosecution to make all reasonable efforts to ensure that
information is obtained from the victim for submission to the court. Other provisions dealt with
the disclosure and distribution of victim impact statements.79
In relation to crimes of physical or sexual violence, various new rights were afforded to victims
under the Bill. These included certain rights in relation to bail: the right of the victim to furnish
the court with his or her view of any bail application made by the alleged offender; the rights to
be informed of any release on bail of an alleged offender.80 It also provided the right to be given
reasonable prior notice of the intention of the Parole Board to review the case of a convicted
offender for parole and to make submissions to the Board81 and the corresponding right to be
given reasonable notice of a convicted offender’s escape,82 early release83 or deportation84 and to
make a submission to the Minister for Justice, Equality and Law Reform. In relation to sexual
offences, provision was made for deference on the part of the court to the wishes of the victim in
relation to orders prohibiting the identity of the accused.85
The Bill established certain procedures to take effect in the event that a victim’s rights thereunder
have been violated. Under section 42, the victim was permitted to complain to various persons
including the Ombudsman and a garda ombudsman. The section went on to state:
Subject to the proviso in s.9 that information may be withheld if good reason exists, such as where the giving of the
information would be likely to prejudice the maintenance of law and order or the right to fair trial.
77
78
S.19 contains supporting provision for withholding such information from victim impact statements.
79
Ss.18 and 20.
80
Ss.23 and 27.
81
S.28 and 40.
82
S.29.
83
S.30.
84
S.32 and 41.
85
S.21.
41
“A failure to respect a victim’s rights in accordance with the provisions of this Act shall,
of itself, entitle a victim to claim compensation in any civil court save that this provision
shall not affect the rights under existing law vested in a victim to bring any form of court
action as a consequence of any negligence or wrongdoing.”86
Finally, the Bill provided for the return to the victim, as soon as practicable and to the extent
possible, of property held by law enforcement agencies.87
The Victim as Witness
The victim plays a significant, sometimes crucial, role in the criminal process by providing
evidence that may be used in the prosecution of the person (or persons) charged with the crime
in question.
Frequently, it is the victim that reports the crime to the gardaí.
Once an
investigation is under way, the victim is invariably asked to make a statement to the gardaí
detailing his or her account of the material circumstances of the alleged offence. This statement
assists the gardaí in their investigation of the offence and also lays a foundation for the evidence
that may be presented at any subsequent trial. In some instances, the function of furnishing the
gardaí with a formal statement may encourage a person charged with an offence to enter a guilty
plea.
Our common law system places great store in the concept of the trial as a live, adversarial
proceeding. Consequently, there is a marked preference for oral testimony over documentary
evidence. The premise is that the adjudicator – a judge in the district court, a jury in the circuit
criminal and central criminal courts or a three-judge panel in the special criminal court – should
have the benefit of hearing the accounts of witnesses first hand, and of observing their
demeanour when testifying, particularly in response to adversarial questioning. Thus, a statement
that a victim furnishes to gardaí is generally not admissible as evidence at trial; the victim must
come into court, testify in the public, formal and potentially intimidating setting of the
courtroom, and face the prospect of possibly aggressive and even hostile cross-examination.88
Although the process of testifying is particularly traumatic for victims, they are subject to the
86
S.43(3).
87
S.43.
A significant exception, designed primarily to deal with hostile witnesses, was incorporated into Part III of the
Criminal Justice Act 2006. See C. Hanly, “Finding Space for Victims’ Human Rights in Criminal Justice”, Paper
delivered at a Conference on Human Rights and Criminal Justice, Incorporated Law Society, Dublin, Oct. 13, 2007.
88
42
same rules and procedures as ordinary witnesses for the most part. In other words, the law does
not recognise victims as a distinct category of witness and worthy of special treatment as such.
Over the years, some special measures have been introduced into Irish law to assist limited
categories of witnesses in particular circumstances. If a victim comes within one of these
categories, he or she may avail of the measure in question. For example, the circumstances in
which children may testify and the manner in which they may do so are questions that have been
addressed by statute.89 Similarly, the law makes special provision for witnesses who are subject to
intimidation90 and for witnesses testifying in relation to domestic abuse.91 These and other
measures were not put in place to benefit victims in particular. However, in many instances, a
victim who comes forward to testify will qualify for one or more special measures and thus
benefit indirectly from the measure of protection.
Comparative research and analysis suggests that Ireland generally lags behind other jurisdictions
in the range and scope of special measures provided for witnesses. For example, Irish law
recognises no equivalent to the category of “vulnerable witnesses” that is the subject of special
provision in United Kingdom law. Indeed, debate is ongoing in the UK about the adequacy of
that regime. Recent empirical research suggests that the majority of witnesses perceive themselves
to be vulnerable and in need of special assistance even though the system does not recognise
them as such.92
Contrary to public perception, testifying does not involve the witness simply taking the stand and
delivering his or her version of events in narrative form.
The witness is questioned or
“examined” by counsel and, in effect, his or her testimony comprises responses to series of
questions. Where the witness is a victim, he or she will almost invariably be called to the court to
testify on behalf of the prosecution. The procedure begins with the witness being called to the
stand. After taking the oath or affirmation, the witness is examined by the prosecution. At the
end of this “examination-in-chief”, the defence has an opportunity to cross-examine the
witness.93 Finally, at the end of any cross-examination, the prosecution may re-examine the
witness. For many victims, the experience of testifying is daunting and traumatic.
89
Criminal Evidence Act 1992.
90
Criminal Justice Act 1999.
91
Criminal Evidence Act 1992.
M. Burtons, R. Evans and A. Sanders, Are Special Measures for Vulnerable and Intimidated Witnesses Working? Evidence from
the Criminal Justice Agencies (Home Office Online Report 01/06, 2006).
92
93
People (DPP) v. GK, unreported, Court of Criminal Appeal, 5 July 2006.
43
Special Measures
(a) Competence and Compellability
Irish law operates on the pragmatic assumption that every witness is competent to testify. If the
matter is disputed, competency is established by the party tendering the witness demonstrating
that the witness is capable of understanding the significance of the oath or affirmation and of
giving a rational account of the material events which he or she witnessed.94 Any competent
witness may be compelled to testify, i.e., he or she may be forced by subpoena to come into court
and give evidence95 and may be sanctioned for refusing to do so.96
An aspect of the system that many victims find difficult to understand is that by virtue of the
privilege against self incrimination97 an accused person cannot be compelled to testify at trial.
The accused is competent to testify and, consequently, may choose to take the stand and testify
on his or her own behalf.98 If the accused does so, then and only then, may he or she be crossexamined by the prosecution (and by any co-accused).99 The decision not to testify and hence to
be shielded from cross-examination may come at a price, however. Although a jury will be told
by the trial judge that the accused is perfectly within his or her rights in electing not to take the
stand,100 the decision not to speak up in one’s own defence may seem counterintuitive. Even if
the jury is equivocal about the accused’s motives in not testifying, they will not have the benefit
of hearing directly from the accused in his or her own words. A jury which has not observed the
accused testifying will necessarily rely on second hand sources when assessing the accused’s
credibility. Finally, recent changes in relation to the right to silence may have a bearing on the
decision not to testify. Under the Criminal Justice Act 2007, inferences may be drawn at trial
from the fact that an accused person remained silent when questioned by gardaí during the
This is assuming that the witness does not come within a designated category, such as children, which has special
rules relating to competency.
94
95
A subpoena is a court order to come into court either to testify or to hand over evidence such as documents.
96
The ultimate sanction is contempt of court.
97
R v Director of Serious Fraud Office, ex parte Smith [1993] AC 1; Re National Irish Bank Ltd [1999] 3 IR 145.
98
S.1(a) of the Criminal Justice (Evidence) Act 1924.
S.1(e) and (f) of the 1924 Act limit the extent to which this cross-examination may delve into the accused’s alleged
bad character or previous misconduct.
99
100
See People (DPP) v Brazil, unreported, Court of Criminal Appeal, 22 March 2002.
44
investigation of the offence.101 Testifying at trial may be the only means whereby such an
accused may explain his or her silence and counter any negative inference.
Historically, the spouse of an accused was not competent to testify either for or against an
accused because husband and wife were deemed a single person in the eyes of the law. The
testimony of the spouse in favour of the accused was presumed to be inherently biased and the
prospect of the spouse testifying against the accused was considered contrary to domestic
harmony. The competence and compellability of a spouse of an accused is now governed by the
Criminal Evidence Act 1992.102 The spouse is a competent and compellable witness for the
defence unless the spouse is jointly charged in the proceedings (in which case he or she is treated
not as a spouse but as an accused).103 As a general rule, the spouse of an accused is competent to
testify for the prosecution but may not be compelled to do so.104 The main thrust of Part IV of
the 1992 Act was to render the spouse a compellable witness for the prosecution in relation to (1)
spousal abuse and (2) either physical abuse or sexual abuse against children, whether within or
outside the family.105 The notion of compelling the spouse of the accused to testify for the
prosecution at trial remains controversial, particularly in cases where the spouse is him or herself
a victim of the alleged offence. The legislative justification was, first, that the spouse’s testimony
may constitute the best if not the only available evidence in relation to offences that are
notoriously difficult to prosecute and, second, that taking the decision whether to testify out of
the spouse’s hands would reduce pressure on the spouse by the accused.106
The testimony of children raises an issue of competence rather than compellability. Provided
that the child is competent to testify, he or she may be compelled to do so in the same way as an
adult. The 1992 Act simplified historically complex rules governing the competence of children
to testify. It provides that a person under 14 years may testify at trial provided that he or she is
“capable of giving an intelligible account of events which are relevant to those proceedings.” 107
The child is not required to swear an oath or affirmation thereby obviating the need for the court
to assess the child’s understanding of the consequences of so doing.108 Competence to testify
101
Criminal Justice Act 2007, No. 29 of 2007, Part 4.
102
Provision is also included in the Act for former spouses.
103
S.23.
104
SS.21 and 22.
105
S.22(1).
People v James T. , unreported, Court of Criminal Appeal, 27 July 1988. The Law Reform Commission had taken a
different view. Report on the Competence and Compellability of Spouses as Witnesses (LRC 13-1985).
106
107
S.27(1).
108
S.27(2) provides that intentionally giving false evidence under the section is punishable in a manner akin to perjury.
45
turns on the judge’s determination that the child is capable of giving an intelligible account.
These provisions governing the testimony of children also apply to persons with mental
disabilities who are 14 years or over.109
(b) Live Television Link
One of the most striking technological innovations in the conduct of criminal trials is the
presentation of testimony via live television link. Statute now provides that in a range of
circumstances and for a variety of reasons, a witness may give his or her evidence in a location
outside the courtroom. The testimony is relayed by television link and displayed simultaneously
on monitors inside the courtroom. This facility was provided in the Criminal Evidence Act 1992
to a witness testifying in relation to sexual and violent offences in order to reduce the trauma
associated with testifying live in the courtroom. Where the witness is under 17 years of age,110 or
has a mental handicap,111 there is a presumption in favour of the use of the technology; the
witness may testify through a live television link “unless the court sees good reason to the
contrary”.112 Where the witness is 17 years or over, the prosecution must apply to the court for
leave to permit the witness to testify in this fashion.113 Where evidence is given by live television
link, neither the judge nor counsel shall wear wigs or gowns.114
The introduction of televised testimony was a controversial departure from the commitment to
testimony in open court which is a defining feature of our adversarial system of justice. In
Donnelly v Ireland,115 the Supreme Court upheld the constitutionality of the relevant provisions of
the 1992 Act. The applicant for judicial review had been convicted of the sexual assault of a
young girl who had testified at the trial by way of live television link. The applicant argued
unsuccessfully at trial and again in the judicial review proceedings that the procedure infringed his
constitutional right to a fair trial because it deprived him of an adequate opportunity to defend
himself. Hamilton C.J. concluded that the live television link did not restrict the rights of an
accused person and, in particular, that it did not diminish the right to cross-examination.
109
S.27(3). See e.g. O’Sullivan v Hamill [1999] 2 IR 9.
110
S.13(1)(a).
111
S.19.
112
S.13(1)(a).
113
S.13(1)(b).
114
S.13(3). S.13(1) expressly excludes the possibility of an accused testifying by live television link.
115
[1998] 1 IR 321.
46
“A witness, permitted to give evidence in such fashion, will be required to give evidence
on oath in accordance with the statement of evidence previously made available to the
accused person and be subject to cross-examination thereon by counsel on behalf of the
accused person. His or her demeanour in the giving of such evidence and when subject
to such cross-examination by counsel on behalf of the accused will be clearly visible by
way of monitors to the judge and jury trying the case, who will have ample opportunity
to assess the reliability of such testimony.”116
Hamilton C.J. rejected the notion that an accused has an absolute right to physically confront his
or her accuser in the courtroom.117
Live television link was subsequently extended to intimidated witnesses under the Criminal
Justice Act 1999. Section 39 applies in proceedings relating to any kind of indictable offence. It
authorises the court to permit a witness to testify through a live television link where the court is
satisfied that the witness “is likely to be in fear or subject to intimidation in giving evidence
otherwise”.
(c) Intermediaries
Section 14 of the 1992 Act makes an additional special measure available where a person under
17 years of age,118 or a person with a mental handicap,119 is testifying in relation to a sexual or
violent offence through a live television link. In response to an application brought either by the
prosecution or the accused, the court may direct that any questions to be put to the witness be
put through an intermediary. Before making such a direction, the court must be satisfied that,
having regard to the age or mental condition of the witness, the interests of justice require the use
of an intermediary.120 The intermediary must use the words of the questioner or such words as
convey to the witness in a manner appropriate to his or her age and mental condition the
meaning of the questions being asked.121
116
Id. at p.
117
Id.
118
S.14(1).
119
S.19.
120
S.14(1).
121
S.14(2).
47
(d) Videorecorded Evidence
As noted above, the law generally disfavours the use at trial of statements made by a witness in
advance of trial, such as the statement of a victim to the gardaí during the course of the
investigation. Pre-trial statements of this kind are considered unreliable for several reasons: the
statements are hearsay, they are not given in the formal, solemn setting of the courtroom, the
witness is not under oath, the judge and jury cannot observe the demeanour of the witness when
making the statement and, most significantly, the defence has no opportunity to cross-examine
the witness. Notwithstanding these concerns, there are exceptional circumstances in which a
court will admit pre-trial statements of witnesses.
The most relevant of such circumstances concern young witnesses providing evidence in relation
to sexual offences or violent offences under the 1992 Act. Section 16(1)(a) provides that a
videorecording of any evidence given by a person under 17 years of age through a live television
link at the preliminary examination of the offence shall be admissible at trial as evidence of any
fact stated therein of which direct oral testimony by the witness would have been admissible.
Section 16(1)(b) renders admissible in similar terms a statement made by a victim of such an
offence, who is under 14 years of age, during an interview with a member of the gardaí. In this
second case, the videorecording must have been taken into consideration during the district
judge’s preliminary examination of the offence or the witness must be available at trial for crossexamination.122 In either case, the court retains a discretion to exclude the videorecording or any
part thereof if the court is of the opinion that it should be excluded in the interests of justice.
The Criminal Justice Act 2006 also makes provision for the admission at trial of pre-trial
witness statements, including videorecorded statements, in certain circumstances. The provision
was invoked for the first time in a recent trial to permit the admission as direct evidence of a
videorecorded interview by a psychiatrist of an alleged victim of child abuse.123
(e) Identification Evidence
122
S.16(b).
123
S.16 of the 2006 Act. The Irish Times, Nov.1, 2007, p.8.
48
In a criminal trial, the prosecution has the burden of proving not only that the offence has been
committed but also that the accused was the offender. Although the prosecution increasingly
relies on scientific techniques such as DNA, witness identification remains the most common
means of establishing the necessary proof.
Eyewitness testimony, however sincere and
persuasive, is notoriously unreliable and, over the years, the courts have put safeguards in place
to counteract the frailties of human observation and memory.124 For a witness, particularly a
victim, the process of formally identifying the accused can be traumatic. It involves the witness
being asked whether he or she sees the offender in the courtroom and the witness then
identifying the accused verbally and physically (for example, by looking directly at the accused,
pointing, or nodding one’s head). Recognising the difficulty this may pose for the witness, the
legislation noted above extending live television link technology also dispenses with the
requirement that the witness formally identify the accused in court.125
Evidence of Previous Sexual History of a Complainant
Trials of persons accused of such offences create heightened concerns for all parties involved in
the process. For victims, the prospect and reality of testifying may be extremely traumatic.126
Allegations of rape or sexual assault raise particularly challenging issues of proof. The outcome
of proceedings often turns on which of two conflicting version of events the jury finds more
credible, that of the victim or that of the accused. Special statutory and common law rules of
evidence have evolved over time to address these and other concerns. For example, by virtue of
the doctrine of fresh complaint, the prosecution may introduce evidence that the complainant
reported the offence to a third party as soon as was reasonably practical.127 The complaint is
offered not as independent evidence but as a means of bolstering the credibility of the
complainant.128 A further example is the statutory relaxation of the common law requirement
that the trial judge warn the jury of the dangers of convicting an accused on the uncorroborated
124
These safeguards include pre-trial identification procedures and cautionary warnings.
125
Ss.18 and 19 of the 1992 Act; S.39 of the 1999 Act.
See People (DPP) v Tiernan [1988] IR 250; People (DPP) v M. [1994] 3 IR 306. For the accused, the implications of the
allegations may be profound and the proceedings hostile and demeaning. See e.g. DPP v DO, Supreme Court,
unreported, 8 March 2006.
126
127
People v Brophy [1992] ILRM 709; People (DPP) v DR [1998] 2 IR 106.
128
People (DPP) v MA [2002] 2 IR 601.
49
testimony of a complainant. Section 7 of the Criminal Law (Rape) (Amendment) Act 1990 129
now gives the trial judge a discretion whether to give any such warning.130
Provisions of this kind, however, in no way diminish perhaps the most daunting aspect of the
trial for the victim, namely, the exercise of the accused person’s right to cross-examine any
prosecution witness. As Hanly explains:
“Cross-examination is inherently unpleasant for any witness; its purpose is to probe for
deceit and to determine whether there are reasons for the jury to reject his or her
evidence. Any such system of questioning is likely to cause a witness to feel that he or
she is under attack; indeed, it is not uncommon for witnesses to feel that they were on
trial rather than the defendant.”131
Although the Supreme Court has recognised that the right to cross-examination is not
absolute,132 restrictions on the exercise of the right remain minimal in practice. Indeed, Hanly
argues that by failing to protect victims from excessively harsh cross-examination, Irish law may
be in breach of the European Convention on Human Rights.133
The possible introduction by the prosecution in a rape case of evidence of a complainant’s
previous sexual history is particularly controversial. If the accused raises the defence of consent
to rape, counsel for the prosecution will endeavour to undermine the complainant’s denial that
she consented to sexual intercourse. At common law, the prosecution could admit evidence of a
complainant’s previous sexual history provided that the evidence was relevant to the issue of
whether she consented or would be likely to have consented.134 The possibility of hostile crossexamination of the complainant as to sexual history was objectionable in itself but it was also said
to discourage victims from reporting rape and sexual offences.135 A change in the law was
129
Criminal Law (Rape) (Amendment) Act 1990, No. 321 of 1990.
130
See e.g. People (DPP) v JEM [2001] 4 IR 385.
C. Hanly, “Finding Space for Victims’ Human Rights in Criminal Justice” Paper delivered at a Conference on Human
Rights and Criminal Justice, Incorporated Law Society, Dublin, 13 October, 2007, pp.15-16.
131
132
See e.g. People (DPP) v DO [2006] 2 ILRM 61; People (DPP) v Kelly [2006] 3 IR 115.
133
Hanly, op.cit., p.24.
134
People (DPP) v McGuinness [1978] IR 189.
D. McGrath, Evidence (Thomson Round Hall, 2005) at p.517 (citing the Law Reform Commission Consultation Paper
on Rape (LRC 24-1987) and the Report of the Task Force Against Women (1997)). See also I. Bacik et al., The Legal Process and
Victims of Rape (Dublin Rape Crisis Centre, 1998).
135
50
enacted in section 13 of the Criminal Law (Rape) (Amendment) Act 1990 which amended section
3(1) of the Criminal Law (Rape) Act 1981 to provide as follows:
“(1) If at a trial any person is for the time being charged with a sexual assault offence to
which he pleads not guilty, then, except with the leave of the judge, no evidence shall be
adduced and no question shall be asked in cross-examination at the trial, by or on behalf
of any accused person at the trial, about the sexual experience (other than that to which
the charge relates) of a complainant with any person …
(2) (a) The judge shall not give leave in pursuance of subsection (1) for any evidence or
question except on an application made to him, in the absence of the jury, by or on
behalf of an accused person.
(b) The judge shall give leave if, and only if, he is satisfied that it would be unfair to the
accused person to refuse to allow the evidence to be adduced or the question to be
asked, that is to say, if he is satisfied that, on the assumption that if the evidence or
question was not allowed the jury might reasonably be satisfied beyond reasonable
doubt that the accused person is guilty, the effect of allowing the evidence or question
might reasonably be that they would not be so satisfied.”136
An important change to the law was introduced in section 34 of the Sex Offenders Act 2001 137
which inserts a new Section 4A into the Criminal Law (Rape) Act 1981 providing for separate
legal representation of complainants where an application is made to admit previous sexual
history. Where an accused person charged with rape or a sexual assault offence138 makes such an
application, Section 4A(1) states that “the complainant shall be entitled to be heard in relation to
the application and, for this purpose, to be legally represented during the hearing of the
application. Certain procedural requirements are put in place to ensure the effective exercise of
this entitlement. The defence must give the prosecution notice of its intention to make an
application to admit previous sexual history as soon as practicable after the commencement of
the trial or proceeding139 and the prosecution must notify the complainant, in turn, as soon as
See People (DPP) v Moloney, unreported, Court of Criminal Appeal, 8 November 1999, in which the Court of Criminal
Appeal rejected a ground of appeal related to the statutory provision on the basis that the issue of previous sexual
history did not arise in the case.
136
137
Sex Offenders Act 2001, No. 18 of 2001.
S.4A(6) provides an exhaustive list of the applicable offences: rape, aggravated sexual assault, attempted aggravated
sexual assault, aiding, abetting, counselling and procuring aggravated sexual assault, incitement to aggravated sexual
assault and conspiring to commit any of the foregoing offences.
138
139
S.4A(2).
51
practicable after receiving such notice.140
Compliance with these notice requirements is a
statutory precondition to the hearing of the application by the trial judge.141 Indeed, the judge is
required to postpone the hearing of the application if he or she is not satisfied that the
complainant has been afforded a reasonable opportunity to arrange legal representation.142
Section 35 of the 2001 Act renders the complainant eligible for legal aid for the purpose of being
represented by a solicitor or barrister in relation to the application.143
The Victim in Sentencing
The Criminal Justice Act 1993 made provision for the reception by the sentencing court, once an
offender has been convicted, of victim impact statements.144 The purpose behind victim impact
statements is twofold: first, they give victims of crime with an opportunity to participate actively
in the proceedings; second, they enable the court to take the victim’s perspective into account
when sentencing. As the Law Reform Commission explains:
“The statement is to enable a judge to pass an appropriate sentence which takes into
account to an appropriate degree the effect of the crime on the victim and to ensure that
where the impact is severe, this is reflected in the sentence.”145
The 1993 Act permits the use of victim impact statements in relation to sexual offences,146
offences involving violence or the threat of violence, or offences related to either category.147
Section 5 contains two key provisions. First, section 5(1) requires the court to take into account
140
S.4A(3).
141
S.4A(4).
142
S.4A(5).
143
S.35 amends ss.27 and 28 of the Civil Legal Aid Act 1995.
See generally R. Guiry, “Who is the Victim? – The Use of Victim Impact Statements in Murder and Manslaughter
Cases” (2006) 16 I.C.L.J. 2; R Coen, “The Rise of the Victim – A Path to Punitiveness?” (2006) 16 I.C.L.J. 10; S.
Gillane, “Balancing the Scales in a Homicide Trial: A Reply” (2007) J.S.I.J. 31. The Balance in the Criminal Law Review
Group recommended that victim impact statements also be used in relation to parole. In particular, the Group
considered that any victim impact statement should be given to the Parole Board and considered prior to any decision
on parole. It also suggested that the Department of Justice, Equality and Law Reform examine the possibility of
allowing relatives or victims, who did not get an opportunity to make a victim impact statement, to be heard by the
Parole Board in the presence of the offender. However, the Group did not go so far as to specifically recommend that
a decision on parole should be conditioned by the offender’s participation in a restorative justice programme. Final
Report of the Balance in the Criminal Law Review Group, March 2007, p.236-38.
144
145
Law Reform Commission, Report on Sentencing (LRC 53-1996) at p.48. See also McGovern, op.cit. at p.399.
within the meaning of s.2 of the Criminal Evidence Act 1992. These offences include rape, buggery, sexual assault
and aggravated sexual assault.
146
147
S.5(2).
52
when determining sentence “any effect (whether long-term or otherwise) of the offence on the
person in respect of whom the offence was committed.” To assist its consideration of the impact
of the offence on the victim, the court “may, where necessary, receive evidence or submissions”.
Second, section 5(3) contains more specific provision for a victim to make a statement to the
court. It states:
“Where a court is determining the sentence to be imposed on a person for an offence to
which this section applies, the court shall, upon application by the person in respect of
whom such 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.”
Certain limitations are apparent. First, the section does not use the term “victim” but rather
speaks of “the person in respect of whom the offence was committed”. This phrase is not
defined statutorily. A common sense reading suggests a narrower definition than customarily
understood by the term “victim” and it has been suggested that it may exclude some indirect
victims as the bereaved relatives of homicide victims.148 Nevertheless, courts have interpreted
the statutory language more broadly in practice and permitted such indirect victims to avail of the
statutory provisions.149 This practice has now been expressly approved of by the Court of
Criminal Appeal.150
In its Final Report, the Balance in the Criminal Law Review Group
recommended that s.5 be amended to give the next of kin of a deceased victim the statutory right
to make a statement to the court at the sentencing stage subject to a judicial discretion to exclude
such a statement where the impact on the person was too remote or where more than a very
limited class of immediate relatives wished to make a statement.151
A second potential limitation is the non-mandatory nature of the victim impact statement.152
Section 5(3) requires the victim to make an application to the court in order to be heard. This
assumes that the victim is aware of his or her right to make a statement and is ready and able to
Coffey, op.cit. at p.17. This is contrary to the UN Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power, UN Doc UNGA Res/40/34 (1985) which defines victims as including indirect victims, i.e., the
immediate family or dependents of the direct victim.
148
See Seminar on the Support of Victims of Crime, Nov.21, 2006, reported in Commission for the Support of Victims of
Crime, Annual Report 2006, p.31.
149
150
151
DPP v O’Donoghue, unreported, Court of Criminal Appeal, 18 October 2006.
Final Report of the Balance in the Criminal Law Review Group, March 2007, p.237.
The issue of discretionary versus mandatory statements was debated by the Law Reform Commission in the
consultation process that preceded its Report on Sentencing (LRC 53-1996). The 1993 Act entered into force before
publication of the Commission’s final report thus, in the Commission’s view, obviating the need for additional
legislation. Id. at p.49.
152
53
make the necessary application. Of course, not every victim will wish to participate actively in
the sentencing process and the non-mandatory nature of the procedure reflects this reality. The
procedure is mandatory in so far as the court must respond positively to a victim’s request to be
heard. Section 5(3) makes plain that the court must hear the evidence in question. Moreover, it is
important to recall that the court is under a duty to take victim impact into account when
determining sentence. Arguably, the court will have to hear evidence from the victim, or the
gardaí, if it is to fulfil this statutory duty.153 A third limitation relates to the victim impact
statement itself. Section 5(3) facilitates the tendering of the statement without more; it makes no
provision for the examination of the victim by the judge or the parties.
Given the non-mandatory nature of the procedure, it is clear that victim impact statements will
be tendered in some cases but not in others. This raises the spectre of disparity in sentencing
procedure and possibly in sentencing determinations.154 This is one of the primary criticisms that
have been raised against victim impact statements in other jurisdictions.
However, greater uniformity in the application of victim impact statements in homicide cases at
least may result from a recent ruling of the Court of Criminal Appeal, in which the Court
provided guidance to sentencing judges on the role and function of victim impact statements and
the approach they should adopted in relation to them.155 This was done in the context of a highprofile manslaughter case in which the mother of the victim made certain comments verbally in
court by way of an addendum made to her written statement. While the defence had been
notified of the content of her written statement, no notice had been given to any party as to the
additional comments.156
In the judgment of the Court, Macken J. expressly approved of the practice which has developed
of permitting an indirect victim impact statement to be made by the family of homicide victims,
on the basis that such a statement can assist the sentencing judge in determining the appropriate
153
Law Reform Commission, Report on Sentencing (LRC 53-1996) at p.49.
154
Coffey, op.cit. at p.18.
DPP v O’Donoghue, unreported, Court of Criminal Appeal, 18 October 2006. For an earlier view, see People (DPP) v.
CM, unreported, High Court, 16 June 1995.
155
In a recent address delivered at University College Cork on the role of the victim in the criminal process, Mr. Justice
Carney, who had presided over the trial, stated: “[The] sentencing objective was totally frustrated by an unscripted
addendum to the Victim Impact Statement and the enthusiastic adoption of it by the tabloid press. The tabloids stirred
up such hatred for the accused that he has no future in this country when his time is served. This was not the intention
of the sentencing judge. It is not acceptable that a sentencing objective of the High Court upheld by the Court of
Criminal Appeal should be frustrated by an unwilling coalition between the victim and the tabloid press.” The Irish
Times, Oct. 11, 2007, p.16. See also the statement of Mrs. Majella Holohan in response to Mr. Justice Carney’s address,
reported in The Irish Times, Oct. 11, 2007, p.10 and the comments of Blaise O’Carroll, S.C., reported in The Irish Times,
Oct. 25, 2007, p.12.
156
54
sentence, and that it can afford the family or friends of a deceased victim an opportunity to
express the loss to them arising from the unlawful homicide.
However, she held that such statements should only be permitted on strict conditions. In
particular, a copy should be submitted to the prosecution, the sentencing judge and the accused’s
legal representatives in advance of the making of the statement itself in court to ensure that it
contains nothing untoward. The person who makes the statement should also be warned by the
sentencing judge that if they depart in any material way from the content of the statement, they
may be liable to be found in contempt of court. A more serious consequence still may result if
the statement involves “unfounded or scurrilous allegations against an accused”, since that fact
may now, she held, be taken into account in mitigation of the sentence to be imposed.
Undoubtedly the risk now apparent of providing the convicted person with an additional
mitigating factor will weigh heavily on any family member making a victim impact statement in
future homicide cases.
In a recent address delivered at University College Cork on the role of the victim in the criminal
process, Mr. Justice Carney expressed “grave reservations” in relation to the Court of Criminal
Appeal’s guidelines. Cautioning against a rush to reform, he voiced the concern that the
proposed procedure would confer “a right of censorship on killers and rapists over the victims.”
He suggested further that the cautioning provision recommended by Macken J. would lend
credibility to the complaint frequently made by rape victims that they are the ones who are on
trial.157 In order to avoid any possibility of inappropriate use of victim impact statements, the
Balance in the Criminal Law Review Group had previously recommended that an amended
statutory provision include a power vested in the sentencing court to direct that the statement as
delivered or any part of it would not be published or broadcast.158
Compensation for Victims
One of the most significant issues affecting victims is entitlement to compensation. In Ireland,
limited compensation is provided through non-statutory and statutory mechanisms.
157
The Irish Times, Oct. 11, 2007, p.16.
158
Final Report of the Balance in the Criminal Law Review Group, March 2007, pp.237-38.
55
(a) The Non-Statutory Scheme
In 1974, in the wake of the Dublin and Monaghan bombings, a Scheme of Compensation for
Personal Injuries Criminally Inflicted was established. Funded by the Department of Justice,
Equality and Law Reform, the Scheme is administered by the Criminal Injuries Compensation
Tribunal.159
The victim must apply in writing to the Tribunal for an ex gratia award of
compensation.160 The award is made independently of any civil or criminal proceedings being
instituted. As its title suggests, the scheme is limited to victims who suffer a personal injury or
death which is directly attributable to a crime of violence.161 Thus, the Tribunal does not accept
applications for compensation arising out of loss or damage to property resulting from crime. It
is also noteworthy that eligibility for compensation on grounds of personal injury is limited to
physical injury and does not extend to cases where a victim has suffered psychological injuries
alone, following amendment of the Scheme in 1986.162
The non-statutory nature of the Scheme is a significant drawback because it negates the existence
of any right to compensation on the part of victims. In effect, the Executive branch is free to
reduce the scope of the Scheme at any time or, indeed, to abolish it altogether. Thus, in 1986,
the operation of the Scheme was dealt a serious blow by the decision to exclude from its ambit
compensation for pain and suffering. Since that time, the measure of compensation available to
victims under the Scheme is limited to vouched out-of-pocket expenses, such as medical
expenses and lost earnings. The constitutionality of the 1986 reduction in the scope of the
Scheme was upheld by the High Court in A.D. v Ireland.163 Carroll J. stated:
The Tribunal is comprised of a chairperson and six members who must be either practicing barristers or solicitors
and who act for three-year terms.
159
There is no time limit for applications arising out of fatal injuries. In the case of personal injuries, the application
must be made within three months of the incident in which the injury was caused. The incident must have been
reported to the gardaí without delay. The Scheme also extends to injuries sustained where the victim assisted or
attempted to assist in the prevention of crime or the saving of human life. An application is determined by a single
Tribunal member; if the applicant is not satisfied with the decision, he may lodge and appeal, which is heard de novo by
at an oral hearing by three other Tribunal members. A victim may be accompanied by his legal adviser or another
person but the Tribunal will not pay the costs of legal representation. See Scheme of Compensation for Personal Injuries
Criminally Inflicted, available at www.justice.ie
160
The Tribunal will consider claims made by or on behalf of the victim, any person responsible for the maintenance
of the victim who has suffered pecuniary loss or incurred expense as a result of the victim’s injury, a dependent of a
victim who has died, or a person who incurred expenses as a result of the death of the victim. Crimes of violence
include arson and poisoning.
161
As McGovern notes, op. cit. at p.401: “The purpose of state compensation is to recognise on behalf of society the
experience which victims of crime have suffered and to help the victim to recover and to live as normal a life as
possible in the circumstances. As such, awards should be made for psychological as well as physical injury.” There are
a number of other circumstances in which compensation is excluded. These include: where the offender and victim
were living together; where the injuries were inflicted in a traffic offence where there was no deliberate attempt to run
down the victim; where the Tribunal is satisfied that “the conduct of the victim, his character or his way of life make it
inappropriate”. See Scheme of Compensation for Personal Injuries Criminally Inflicted, available at www.justice.ie
162
163
[1994] 1 IR 369.
56
“The question of compensation is a matter of policy for the Government and the
Oireachtas. It seems to me to be a question on which many States have already made a
policy decision to have a scheme of compensation. It is an area in which the
Government did have a policy which included pain and suffering and have resiled from
it since 1986. But no matter how desirable such a policy might seem, it is essentially a
matter for the Government and accordingly the plaintiff must fail in her claim.”164
(b) The Statutory Scheme: Compensation Orders
The Criminal Justice Act 1993 introduced a statutory mechanism whereby, following conviction,
an offender may be ordered to pay compensation to the victim. Section 6(1) provides:
“Subject to the provisions of this section, on conviction of any person of an offence, the
court, instead of or in addition to dealing with him in any other way, may, unless it sees
reason to the contrary, make (on application or otherwise) an order (in this Act referred
to as a ‘compensation order’) requiring him to pay compensation in respect of any
personal injury or loss resulting from that offence (or any other offence that is taken
into consideration by the court in determining sentence) to any person (in this Act
refereed to as the ‘injured party’) who has suffered such injury or loss.”
In contrast to section 5, dealing with victim impact statements, an order for compensation need
not be preceded by an application by the victim but may be made by the court sua sponte.165 The
decision whether to make the order is discretionary.166 Where compensation is ordered, the
operation of the order will not come into effect until the appeals process has run its course.167 A
convicted person may appeal against the compensation order independent of his right to appeal
against his conviction or sentence.168 In addition, a court hearing an appeal against conviction or
sentence may annul or vary the compensation order concerned.169 The wording of the Act
164
Id. at p.373.
165
S.6(1).
166
Id.
167
S.8(1) and (2) of the 1993 Act.
168
S.8(4). The appeal is made to the court to which an appeal against the convicted concerned may be brought.
169
S.8(3).
57
therefore appears to give an appellate court wide latitude to revisit a compensation order in the
context of any form of appeal.170
As the text of section 6(1) suggests, the procedure for compensation is not self-standing but
rather is an integral aspect of the sentencing process. In effect, it provides an alternative to the
possibility of the victim bringing a civil action against the convicted person.171
This is
underscored by the statement in s.6(2) that the amount of compensation shall be such as the
judge considers appropriate but “shall not exceed the amount of damages that, in the opinion of
the court, the injured party would be entitled to recover in a civil action against the convicted
person in respect of the injury or loss concerned.” Giving the sentencing court the power to
award compensation has obvious advantages for the victim. Pursuing a civil action is not a
realistic option for most victims given the cost and additional trauma involved and the
uncertainty of a successful outcome.
Where compensation is an outcome of criminal
proceedings the victim may secure a more immediate and effective remedy without the loss of
anonymity associated with a civil action. Arguably, it also facilitates a more holistic approach to
punishment and compensation by allowing the court to consider the full range of remedial
options available to it.
The difficulty of a scheme that links compensation to sentencing is that it benefits some victims
but not others. It automatically excludes the victims of crimes where the offender has not been
prosecuted through the criminal justice system or, if so prosecuted, has not been convicted.
Even where a convicted has been secured and the court proceeds to sentence, there is no
guarantee that the court will order compensation and, of the court does so, that the victim will be
able to recover the award from the convicted person.172 In deciding whether to make an order,
the court must have regard to any evidence and to any representations made by or on behalf of
the convicted person, the victim or the prosecutor. In particular, the court shall have regard to
the convicted person’s means, including his financial commitments,173 a factor that may prove
S.8(5) further provides that where a compensation order has been made against a person in respect of an offence
taken into consideration in determining his sentence, the order shall cease to have effect if he successfully appeals
against his conviction of the offence, or, if more than one, all the offences, of which he was convicted in the
proceedings in which the order was made.
170
Where a compensation order has been made and a victim subsequently brings a civil action against the offender, s.9
limits the recoverable amount. If the assessment of damages exceeds the compensation order amount, the victim is
entitled to the difference. However, if the amount paid under the compensation order exceeds the damages assessed,
then the victim must repay the excess to the person against whom the compensation order was made.
171
S.6 includes provision for the making of compensation orders made against parents or guardians where the
convicted person is a minor. However, s.6(11) states that the making of a such a compensation order shall not of itself
give rise to any other liability on the part of the parent or guardian.
172
173
S.6(5) and s.6(13).
58
crucial if the court decides to impose a fine as well as a compensation order.174 Where the court
considers the convicted person has insufficient means to pay both, “the court may, if it is
satisfied that the means are sufficient to justify its doing so, make a compensation order and, if it
is satisfied that it is appropriate to do so having regard to the means that would remain after
compliance with the order, impose a fine.”175 In relation to any compensation order, the court
may provide for payment of the compensation by such instalments and at such times as the court
considers reasonable in all the circumstances.176
Given the variables that may characterise the commission of an offence and the range of factors
which may be brought to the attention of the court at sentencing, there is a risk that courts will
not maintain consistency in exercising their discretion to make compensation awards. Further
inequalities, whether actual or perceived, may flow from potential disparities in the amounts
awarded to victims in individual cases.
As against these criticisms, one of the advantages of this procedure is that it is available in
relation to all types of crime and, in particular, minor offences that may be tried summarily in the
district court. Given that most crimes committed in Ireland are minor offences so tried, and that
seeking compensation in the civil courts is not a realistic option in the vast majority of such cases,
this makes financial relief a theoretical possibility at least for significant numbers of victims. The
practical obstacles related to recovery remain, however.
In addition, the amount of
compensation is statutorily limited – where the district court makes a compensation order, the
amount cannot exceed what the court could order in an action for tort.177
For the victim, a further vagary of compensation orders is the possibility that they may be varied
by the court at some indefinite point in the future. Section 6(8) permits a convicted person to
apply to the court for a reduction in his financial liability to the victim on the ground that there
has been a substantial decrease in his means.178 The variation make take the form of a reduction
in the amount of compensation to be paid, an alternation in the amount of any instalment or in
the number of instalments to be paid, or a suspension in the requirement to make payments.
S.7 of the 1993 Act provides for the payment of compensation to district court clerks for transmission and for
orders securing the attachments of earnings. These are equivalent to provisions under the Family Law (Maintenance of
Spouses and Children) Act 1976.
174
175
S.6(7).
176
S.6(6).
S.6(2). S.6(3) provides that where the offence involved the taking of the victim’s property and the property has
been recovered, any damage to the property shall be treated as having resulted from the offence irrespective of how
the damage was caused or who caused it. Special provisions apply under s.6(4) in relation to injury or loss resulting
from the use of motor vehicles in public places.
177
178
S.6(8)(a).
59
Before varying a compensation order, the court must give the victim an opportunity to make
representations and must, moreover, have regard to those representations. Section 6(8) contains
corresponding provision for the victim to apply to the court to vary a compensation order
because of “a substantial increase in the means of the convicted person”.179 The variation may
involve an increase in the amount of compensation, the amount of any instalment or the number
of instalments and is conditional on the convicted person being afforded an opportunity to make
representations to the court.
Common sense suggests, however, that securing an increase in a compensation order will be a tall
order for the victim. It will depend not only on the perhaps unlikely eventuality of an increase in
the financial fortunes of the convicted person but also on the victim being aware of such an
eventuality. It is important to emphasise that the relief provided for in section 6(8) is limited to
the variation of existing orders; where no compensation order was made at the time of sentencing,
the victim is not entitled under this subsection to bring the matter back before the court at a later
date on the basis that there has been an upturn in the financial fortunes of the convicted person.
The effect of a compensation order on sentencing and, in particular on the decision whether to
impose a custodial sentence, has been the subject of some discussion in the courts. In DPP v
McLoughlin,180 the Director of Public Prosecutions successfully appealed to the Court of Criminal
Appeal against a decision of the Central Criminal Court not to order a custodial sentence where
the accused had made a sum of €10,000 available in compensation to the victim. The Court of
Criminal Appeal reiterated a view previous expressed181 that the payment of compensation is just
one of several mitigating factors to be taken into account by the court and that in the context of a
conviction for rape it does not preclude the imposition of a custodial sentence. Kearns J. stated:
“The court would be strongly of the view that victims in circumstances of this nature
should not be drawn into any form of proactive role in determining or negotiating the
amount of any compensation which an accused person may offer with a view to
mitigating his sentence. The extent of the involvement should be either to indicate a
willingness to accept or refuse any sum of compensation that may be offered. Thereafter
it is entirely a matter for the court to determine an appropriate sentence having regard to
all the multiple considerations which must be borne in mind in this context, including
any payment of compensation offered or made.”
179
S.6(8)(b).
Court of Criminal Appeal, unreported, 13 July, 2005. See also DPP v. McCabe (No. 2), unreported, Court of Criminal
Appeal, 13 July 2005.
180
181
People (DPP) v C., unreported, 18 February 2002.
60
There are obvious limitations and deficiencies in the existing schemes for the compensation of
victims, both non-statutory and statutory. A starting point for discussion of reform is the range
of European measures discussion in Chapter 4.
Miscellaneous Procedural Matters
(a)
Bail
Bail may be defined as “the release of a person from custody subject to an undertaking to
surrender to custody at a court or garda station at an appointed time in the future.”182 The
principles governing the granting of bail, subject to the Constitution, are contained in the
common law and the Bail Act 1997. The primary basis upon which bail may be refused is that the
accused is deemed likely to seek to evade justice if at liberty prior to his/her trial. The concept of
“evading justice” includes not only the possibility that the accused will not surrender to trial, but
also that he/she may interfere with witnesses or evidence. This principle offers some protection
to the victim of an alleged offence during the pre-trial period.
Thus, where the complainant in a criminal prosecution is fearful of intimidation by the accused
prior to the trial of the alleged offence, this may be reason for the refusal of bail by the court
prior to the trial. As Finlay CJ stated in DPP v. Ryan,
“the established reasons for the refusal of bail all come within the broad category of
preventing the evasion of justice, either by the accused absconding; by the accused
interfering with witnesses; or by the accused destroying, concealing or otherwise
interfering with physical evidence.”183
Even where bail is granted to an accused person, section 6(1)(b) of the Bail Act 1997 provides
that conditions may be imposed upon the bail, to include that the accused refrain from attending
at certain places; and that the accused refrain from having any contact with a named person or
persons. Again, this can offer some protection to the victim of an alleged offence, since breach of
any bail condition may result in the loss of bail.
(b)
Witness Protection Programme
182
D. Walsh, Criminal Procedure (Thomson Round Hall, 2002) at p.491).
183
[1989] ILRM 333 at p.337.
61
A Witness Protection Programme was established in Ireland in November 1997 under the
management of the Garda Síochána. The programme has been criticised by the Court of
Criminal Appeal in DPP v. Gilligan.184 McCracken J. commented that “Undoubtedly the Witness
Protection Programme was badly thought out and almost developed a life of its own”, adding
that “One of the most worrying features is that there never seems to have actually been a
programme.” The lack of formal guidelines as to the operation of the programme, coupled with
the absence of any statutory basis for it, has created difficulties where convictions have been
secured on the basis of the uncorroborated evidence of accomplices placed on the programme
(see for example the decisions of the Court of Criminal Appeal in Holland and Ward).185
In March 2007, Fine Gael published proposals to overhaul the Programme and place it upon a
statutory footing, with a special Witness Protection Unit to be established within An Garda
Síochána.186
Section 41 (1) of the Criminal Justice Act 1999 created the statutory offence of intimidation of
witnesses, providing for a maximum sentence of ten years imprisonment where a person “harms
or threatens or in any other way intimidates or puts in fear another person … with the intention
thereby of causing the investigation or the course of justice to be obstructed, perverted or
interfered with shall be guilty of an offence”. The Act also created a new offence of attempting to
track down witnesses who have been relocated under the Witness Protection Scheme.
(c)
Prosecution Appeals
Section 2 of the Criminal Justice Act 1993 vests in the Director of Public Prosecutions the right
to bring before the Court of Criminal Appeal an application to review a sentence which, in the
Director’s view, is “unduly lenient”. The right to review is the Director’s alone; the victim is not
entitled to have the sentence reviewed though he may petition the Director to make an
application under section 2.
The right to review of certain sentences applies to sentences
imposed by any court (in effect, the Circuit Criminal Court, the Central Criminal Court and the
Special Criminal Court) on conviction of a person on indictment.187 Consequently, it does not
extend to unduly lenient sentences imposed summarily. Where the Court of Criminal Appeal
grants the Director’s application, it may quash the sentence and replace it with such alternative
184
Court of Criminal Appeal, 8 August 2003; Supreme Court, 5 November 2005.
People (DPP) v Holland, Court of Criminal Appeal, unreported, 15 June 1998; People (DPP) v. Ward, Court of Criminal
Appeal, unreported, 22 March 2002.
185
186
See report at www.rte.ie/news.
187
Under s.2(2), the application must be made within 28 days of the sentencing on notice to the convicted person.
62
sentence as it considers appropriate that was open to the sentencing court.188 Section 3 of the
Act made further provision for an appeal on a point of law to the Supreme Court arising out of
the determination by the Court of Criminal Appeal of an application for review of sentence
under section 2.189 The appeal may be brought by the convicted person or the DPP but only if
the Court of Criminal Appeal, the Attorney General or the DPP certifies that a point of law of
exceptional public importance is at stake and that the appeal is desirable in the public interest.190
Thus, where the DPP wishes to appeal an unsuccessful application to the Court of Appeal for
review of a sentence he considers unduly lenient, there is no need for independent verification of
the Director’s assessment of the exceptional importance of the issue.
Whereas there are broad rights on the part of the defence to appeal against conviction,
historically, the prosecution’s appellate rights have been severely curtailed. By virtue of the rule
against double jeopardy, which protects a person from a second trial for the same offence, the
prosecution may not appeal against an acquittal. In section 34 of the Criminal Procedure Act
1967,191 the Oireachtas provided for a prosecution right of appeal on a point of law arising out of
a judge-directed acquittal. Any such appeal was strictly limited to the point of law at issue and,
crucially, its outcome was without prejudice to the acquittal. Section 21 of the Criminal Justice
Act 2006192 has amended s. 34 of the 1967 Act by substituting a prosecution right to refer a
question of law, arising out of any trial on indictment that resulted in an acquittal, directly to the
Supreme Court.
188
S.2(3).
S.3(2) provides that, in deciding the appeal, the Supreme Court may remit the case to the Court of Criminal Appeal
to deal with or, alternatively, deal with the case itself and for that purpose exercise any powers of the Court of Criminal
Appeal.
189
190
S.3(1).
191
No.12 of 1967.
192
No.26 of 2006.
63
5.
EUROPEAN AND INTERNATIONAL STANDARDS
The European Union
Increased mobility within the European Union has added a cross-border element to crime.
Particular difficulties arise where individuals, particularly tourists, become victims of crime when
outside their home State.193 Although all EU member states provide services to victims, the
range and level of services may vary considerably. Accessing services may be hampered by
differences in language and culture. The participation of the victim in the investigation of the
offence and the prosecution of the offender may be difficult at best where the victim is merely
visiting the member state in which the crime was committed.
The phenomenon of citizens experiencing crime in other member states has generated
heightened interest in the protection of victims’ rights at EU level. In 2001, the Council adopted
a Framework Decision on the Standing of Victims in Criminal Proceedings194 which seeks to
harmonise the levels of protection afforded to victims in the member states. The concept of
victim is broadly defined for purposes of the Decision and extends to “a natural person who has
suffered harm, including physical or mental injury, emotional or economic loss, directly caused by
acts or omissions that are in violation of the criminal law of a Member State.”195 Article 2(1) of
the Decision couches the member state obligation to protect victims in the following terms:
“Each Member State shall ensure that victims have a real and appropriate role in its
criminal legal system. It shall continue to make every effort to ensure that victims are
treated with due respect for the dignity of the individual during proceedings and shall
recognise the rights and legitimate interests of victims with particular reference to
criminal proceedings.”
Specific provision is included in the Decision for the furnishing to victims of information
concerning such matters as services and service organisations, the criminal system and,
193
G. Coffey, “The Victim of Crime and the Criminal Justice Process” (2006) 16 ICLJ 15 at p.19.
(2001/220/JHA), OJ L 82/1. The origins of the Framework Decision lie in the conclusions of the European
Council adopted at its meeting in Tampere in October 1999 which were based in turn on an action plan drafted by the
Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of
freedom, security and justice.
194
195
Art. 1(a).
64
subsequently, the progression of any criminal proceedings.196 The Decision also obliges the
member states to operate procedures for victim compensation. Article 9(1) of the Decision
provides as follows:
“Each Member State shall ensure that victims of criminal acts are entitled to obtain a
decision within reasonable time limits on compensation by the offender in the course of
criminal proceedings, except where, in certain cases, national law provides for
compensation to be awarded in another manner.”197
This theme was taken up in a subsequent Council Directive relating to compensation to crime
victims which recognises the entitlement of victims to appropriate compensation regardless of
where within the European Union the crime was committed.198 The Decision requires member
states to facilitate Union-wide access to compensation for victims of crime by establishing
comparable national schemes. Clearly, the operation by the State of an adequate scheme of
compensation as a matter of Irish law and practice is a precondition to the provision of
compensation to citizens from other member states who become victims of crime while within
our borders.
The adoption of the EU Framework Decision is particularly important given the status of EU
law within the Irish legal system. Specifically, the Decision creates legally binding obligations for
Ireland and the other EU member states.199 The Framework Decision was adopted by the
Council under Title VI of the Treaty on European Union which contains provisions relating to
police and judicial cooperation in criminal matters. These provisions are more intergovernmental
in nature than other aspects of the Treaty such as the provisions governing the internal market.
Common actions in relation to police and judicial cooperation in criminal matters, for example,
are adopted primarily by the Council with reduced input from the European Parliament. There is
Art. 4. The broad obligation resting on the member states is to provide information of relevance for the protection
of the interests of victims. This information must be provided as far as possible in languages commonly understood.
Art. 4(1).
196
Art. 9(2) obliges each member state to take appropriate measures to encourage the offender to provide adequate
compensation. Art. 9(3) provides for the return to the victim without delay of property seized unless urgently required
for the purpose of criminal proceedings.
197
Council Directive 2004/80/EC, 29 April 2004, OJ L 261/15. See also Commission Decision of 19 April 2006
establishing standard forms for the transmission of applications and decisions pursuant to Council Directive
2004/80/EC (2006/337/EC), OJ L 125/25.
198
In accordance with Article 17 of the Framework Decision, most of its provisions entered into force on 22 March
2002. Articles 5 and 6 relating to information, advice and legal aid in the context of criminal proceedings, including a
State obligation to take steps to minimise communication difficulties, entered into force on 22 March 2004. The date
for entry into force of Article 10 relating to the promotion of mediation in the course of legal proceedings was 22
March 2006.
199
65
also less provision for judicial oversight, although the European Court of Justice does have
limited jurisdiction to give preliminary references on the validity and interpretation of framework
decisions adopted under Title VI in certain instances.
In substantive terms, the extent to which the Framework Decision incorporates and, indeed,
exceeds international standards200 is also worthy of note.201
The European Convention on Human Rights
Ireland was one of the original signatory States to the European Convention on Human Rights
when the Convention was drafted in 1950. It ratified the Convention in 1953 together with a
protocol establishing the right of individuals to bring applications against Ireland before the
Strasbourg organs. However, for decades, Ireland resisted national and international pressure to
incorporate the Convention into Irish law which would have rendered its provisions directly
enforceable in the Irish courts. Legislation incorporating the Convention was eventually adopted
in 2002,202 although the remedies afforded to individual litigants are strikingly less effective than
the equivalent measures in other European jurisdictions.203
The Convention, like the Irish Constitution, does not contain a provision expressly dedicated to
the rights of victims of crime. However, the Convention, both in its terms and in the manner in
which it has been interpreted by the Strasbourg organs, goes further than the Constitution in
certain respects. First, the text of the Convention is more explicit than the Constitution in
defining the circumstances in which a State may interfere with protected rights. Thus, whereas
Article 6 guarantees a criminal accused a fair trial, the provision also recognises that a State may
interfere with that right provided that the interference is “prescribed by law” and is “necessary in
a democratic society”. An interference with rights is “prescribed by law” where it is reasonably
foreseeable to the average citizen. It is “necessary in a democratic society” where represents a
proportionate means of achieving a legitimate State aim taken from an exhaustive list contained
in Article 6. One such aim is vindicating society’s interest in “the prevention and detection of
Such as the standards developed by the Council of Europe and the United Nations discussed below. The only
international standard not replicated in the Framework Decision is the right to compensation from the State. See P.J.
Van Dijk, “Victims’ Rights in International Law,” Paper presented at the International Conference on Actions for
Crime Victims, Rome 2006.
200
See also Commission Communication of 18 May 1999 to the Parliament, the Council, and the Economic and Social
Committee on “Crime Victims in the European Union – Standards and Action” COMM. (1999) 349. The European
Parliament has also adopted a number of resolutions concerning victims of crime including Resolution of 8 April 2003
on the Belgian initiative on the adoption of a Council decision setting up a European network of national contact
points for restorative justice. P5-TA (2003) 0147.
201
202
The European Convention on Human Rights Act 2002.
203
Such as under the UK Human Rights Act.
66
crime” which implicitly includes the needs of victims. But another stated aim is the vindication
of “the rights of others” which is potentially a more direct and robust basis for protecting
victims. The basic structure of Article 6 is replicated in other provisions of the Convention with
the consequence that potentially the rights of victims may be used to justify interferences with
other rights of the defence, such as the right to privacy or the right to freedom of expression.
Another important aspect of the Convention is the positive nature of the obligations which it
creates for the State.204 In some instances, it may not be sufficient for the State simply to refrain
from interfering with the exercise of rights; compliance with the Convention may necessitate the
taking of active steps to ensure effective protection. For example, in the context of Article 2,
which protects the right to life, the European Commission of Human Rights has recognised that
States must include provisions in its criminal law to deter the commission of offences against the
person.205 Similarly, the European Court of Human Rights has held that the criminal trial
process must contain safeguards to protect the interests of witnesses in terms of personal security
and privacy.206
Finally, Article 53 expressly prohibits the use of the Convention as a means of limiting or
derogating from rights that are protected under national law or under other international
agreements. This implies that the rights of victims may potentially fetter the development of the
rights of the accused under the Convention. In reality, however, this will not occur unless
victims’ rights are strengthened in national law and international human rights law.
Other International and European Developments
The situation of victims of crime has featured on the agenda of the Council of Europe since the
early 1980s. Its presence, specifically within the Organisation’s activities in the broad spheres of
justice and human rights, has remained on the margins for much of that time, however. In 1983,
the Committee of Ministers opened for signature a pioneering European Convention on the
Compensation of Victims of Violent Crime.207 Although the Convention entered into force in
February of the following year, it has not attracted widespread support among the members of
204
X and Y v The Netherlands (1986) 8 EHRR 235.
205
Taylor Gibson and King v The United Kingdom [CHECK] App. No. 23412/94, D & R 79-A (1993).
206
Doorson v The Netherlands (1996) 23 EHRR 330 at para.70.
207
ETS No.116, Strasbourg, 24 Nov. 1983.
67
the Council of Europe.208 Ireland is a notable omission from the list of participating States
having neither signed nor ratified the Convention. The Committee of Ministers added to the
momentum generated by the Convention in 1985 with the adoption of a Recommendation on
the position of the victim in the framework of criminal law and procedure.209
The focus on the fight against terrorism in recent years has helped to galvanise renewed interest
in the needs of victims and, in particular, victims of terrorist acts.210 The movement to combat
human trafficking has also contributed to this trend.211
On 14 June 2006, the Committee of Ministers of the Council of Europe adopted a
recommendation on assistance to crime victims.212 In it, the members of the Council endorse the
basic principle that “States should identify and support measures to alleviate the negative effects
of crime and to undertake that victims are assisted in all aspects of their rehabilitation, in the
community, at home and in the workplace.”213 Assistance should include the provision of Statefunded medical, psychological and social care, at least in the immediate aftermath of the crime,
which should be provided whenever possible, in a language understood by the victim.214 The
recommendation goes on to articulate particular functions that should be exercised by various
public agencies to support victims of crime. Key functions include the provision of information
(including information on legal proceedings),215 the referral of victims to other services where
appropriate, and the provision of emotional, social and material support during and after
investigative and legal proceedings.216 The recommendation recognises the right of victims to
effective access to remedies including the provision of compensation through State schemes.217
Finally, the recommendation also deals with broader themes such as the selection and training of
A total of 21 States have ratified the Convention and a further 10 States have signed but not ratified its terms. See
http://conventions.coe.int
208
209
Recommendation R (85) 1.
210
See e.g. the Council of Europe Convention on the Prevention of Terrorism, ETS No.196 (2005).
211
See e.g. the Council of Europe Convention on Action Against Trafficking in Human Beings, ETS No.197 (2005).
212
Recommendation R(2006)8.
213
Para. 3.1.
214
Paras.3.2 and 3.5.
215
Para. 6. The need to preserve confidentiality is highlighted. Para. 11.
216
Paras. 5 and 6.
Para.8. The recommendation states that compensation should be provided for treatment and rehabilitation of
physical and psychological injuries and that States should consider compensation for loss of income, funeral expenses
and loss of maintenance. It goes on to provide that States may also consider compensation for pain and suffering as
well as means to compensate damage resulting from crimes against property. Para. 9 provides that States should
evaluate and encourage access to public and private insurance schemes.
217
68
personnel,218 national and international co-ordination of victims support services,
219
raising
public awareness of the effects of crime,220 and the promotion of victimology research.221
In the wake of the recommendation, the 27th Conference of European Ministers of Justice held
in October 2006 was dedicated to “Victims: Place, Rights and Assistance.”222 In a Resolution on
Victims of Crime, the participants decided “to promote measures at a national and international
level to improve assistance to victims and their protection from repeat and secondary
victimisation as well as to ensure, as far as possible, their psychological, social and physical
rehabilitation as well as adequate compensation for damage suffered.”223 In particular, the Justice
ministers recommended that protection for vulnerable persons, including victims, be included in
training of police and personnel involved in the administration of justice.224 They invited the
Committee of Ministers to promote further the standards concerning victims that have been
developed by the Council of Europe and, specifically, to entrust the European Committee on
Legal Co-operation the task of examining and making proposals on various issues pertaining to
victims including the availability of adequate remedies and, more broadly, the implementation of
Recommendation (2006)8.225
Initiatives to protect victims of crime have also been spearheaded under the auspices of the
United Nations.
A UN Crime Congress convened in Milan in 1985 elaborated the UN
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, which was
subsequently adopted by the UN General Assembly.226
Although not a legally binding
document, the Declaration is routinely used as a benchmark for measuring State practice in
relation to victims’ rights. It sets out the following ten basic principles of justice for crime
victims:
1. Compassion and respect;
2. Information (on rights in proceedings and explanation of progress);
218
Para.12.
219
Paras. 14 and 15.
220
Para. 16.
221
Para.17.
222
Yerevan, Armenia, 12-13 October 2006.
223
MJU-27 (2006) Resol.1 Final at para.1.
224
Para. 20.
225
Paras. 22 and 23.
226
UN Doc UNGA Res/40/34 (1985).
69
3. Presentation of views to court;
4. Legal advice;
5. Protection of privacy and physical safety;
6. Informal dispute resolution;
7. Social and medical assistance;
8. Restitution/compensation by offender;
9. Compensation by the State
10. Capacity building/co-operation
The position of victims of crime is also reflected in international conventions directing at
particular, transnational crimes such as the UN Convention Against Transnational Organised
Crime227 and its Protocol Against Trafficking in Persons, Especially Women and Children.228
Doc.A55/383 (2000), adopted by UN General Assembly Resolution 55/25 of 15 November 2000. Ireland has
signed but not ratified the Convention.
227
Doc.A55/383 (2000), adopted by UN General Assembly Resolution 55/25 of 15 November 2000. Ireland has
signed but not ratified the Protocol.
228
70
6.
SELECT COMPARATIVE REVIEW
Introduction
The purpose of this chapter is to provide an outline of support services in comparative legal
systems based on a literature review. Owing to the fundamental differences which exist between
adversarial and inquisitorial systems of law,229 the jurisdictions chosen for the purposes of this
review are those whose systems derive from the common law. Drawing on the review of Irish
law and practice in Chapter 3, a number of themes emerged and the select comparative review
focused on four such themes, namely (1) A Victims’ Bill of Rights; (2) The Victim as Witness; (3)
The Victim in Sentencing; and (4) Compensation.
A Victims’ Bill of Rights
(a)
United Kingdom
The first Victims Charter, setting out the rights and expectations of victims of crime, was
published by the Home Office on European Victims Day, 22 February 1990. In its preamble it
was stated that:
“In the past, the victim of crime has been described as the forgotten woman or man of
the criminal justice system. This verdict was unfair - those working in and with the
system have always tried to help the victim. What the charter does, however, for the first
time is to set out legitimate rights and expectations. This will be a major advance in
giving sympathy for victims more practical expression, and in making sure that victims
are treated in the same way in whichever part of the country they suffer from crime.”230
The intention behind the charter was to set out guidelines on the treatment of victims of crime
by agents of the criminal justice system. The 1990 Charter was divided into four parts, the first of
which set out advances which had been achieved in the area of victims’ rights, the second
addressed how victims of crime should be treated, the third concerned a review of the role of the
various agencies in the criminal justice system with regard to victims of crime and the fourth of
229
See Chapter 2.
230
Victim’s Charter: A Statement of the Rights of Victims (HMSO, London, 1990).
71
which invited comment and debate on issues affecting victims of crime.231 Although the Charter
was regarded as “an important advancement in the recognition of victims’ rights”,232 it was also
criticised for the fact that it offered little by way of enforceable standards.
The message contained in the Victims’ Charter 1990 was further supported by a variety of other
documents intended to set out the standards of service which could be expected by victims of
crime, including guidelines issued by the Crown Prosecution Service,233 the Court Service234 and
the Report of the Royal Commission on Criminal Justice.235 These developments were followed
by the revision in 1996 of the Victims’ Charter,236 which set out twenty seven standards of service
to be delivered by criminal justice agencies dealing with victims of crime, divided into four main
areas: provision of information to victims of crime, taking into account the views of victims,
treating victims with respect and sensitivity in court, and providing support to victims of crime.
Neither the 1990 nor 1996 Victims’ Charters had any legal status, which led Fenwick to comment
that they were better regarded as a formulation of standards rather than the source of any
justiciable rights.237 Thus, as Liberty commented:
“Its impact is severely limited by the absence of a supporting legislative framework.
There is no legal duty or obligation imposed upon service providers to accord victims
the treatment outlined in the Charter. It is a document of broad principles, rather than
defined and enforceable rights.”238
Renewed focus on the role of the victim of crime at the turn of the century led to the publication
in 2002 of a White Paper, Justice for All,239 which promised to put victims and witnesses at the
heart of the criminal justice system in order to ensure that they see justice done “more often and
more quickly”.240 Although these proposals did not ultimately form part of the Criminal Justice
A. Wergens, Crime Victims in the European Union (Crime Victim Compensation and Support Authority, Sweden, 1999)
at p.231.
231
232
L. Zedner “Victims” in M. Maguire et al., Oxford Handbook of Criminology, 3rd ed. (OUP, Oxford, 2002) p.435.
233
Statement on the Treatment of Victims and Witnesses (1993)
234
Court Users’ Charter (1994).
235
Report of the Royal Commission on Criminal Justice (1993).
236
Victim’s Charter (HMSO, London, 1996).
237
H. Fenwick, “Rights of Victims in the Criminal Justice System: Rhetoric or Reality” [1995] Crim LR 843 at p.845.
238
Liberty, The Rights of Crime Victims: A Manifesto for a Better Criminal Justice System (2003).
239
Home Office, Justice for All (Cmnd.5563, 2002).
72
Bill which followed the White Paper,241 the provisions of the Domestic Violence, Crime and
Victims Act 2004 enacted a number of important provisions affecting victims including the
establishment of a Code of Practice for Victims of Crime.
Section 32(1) of the Domestic Violence, Crime and Victims Act 2004 provides for the
establishment of a Code of Practice in the following terms:
“The Secretary of State must issue a code of practice as to the services to be
provided to a victim of criminal conduct by persons appearing to him to have
functions relating to—
(a) victims of criminal conduct, or
(b) any aspect of the criminal justice system.”
Section 33 of the 2004 Act sets out the details of the consultative process which must be
followed prior to the issue of a Code of Practice, providing for consultation with key agencies
including the Attorney General and Lord Chancellor (who is responsible for government policy
on the legal system, head of the judiciary and presides over the House of Lords).
Victims are defined in section 52(2) of the 2004 Act as (a) a victim of an offence, or (b) a victim
of anti-social behaviour. It is immaterial that no complaint has been made about the offence or
that no person has been charged with or convicted of the offence. A wide range of agencies are
subject to the Code of Practice, including the Crown Prosecution Service, the Courts Service, all
police forces for police areas in England and Wales, the Criminal Injuries Compensation
Authority, the Parole Board and the Prison Service. Section 48 of the 2004 Act provides for the
appointment of a Commissioner for Victims, whose functions are set out in section 49 as
follows:
“(a) promote the interests of victims and witnesses;
(b) take such steps as he considers appropriate with a view to encouraging good practice
in the treatment of victims and witnesses;
(c) keep under review the operation of the code of practice issued under section 32.”
240
Ibid., at paragraph 0.22.
The proposals concerning victims of crime in Justice for All were followed by the policy leaflet “A Better Deal for
Victims and Witnesses” (2002) and the publication of the first national strategy for victims and witnesses on 22 July
2003. See E. Cape “Overview: Is Reconciliation Possible” in E. Cape (ed) Reconcilable Rights? Analysing the tension between
victims and defendants (Legal Action Group 2004).
241
73
Section 55 of the Domestic Violence, Crime and Victims Act 2004 provides for the
establishment of the Victims Advisory Panel; the Secretary of State is required to consult the
Panel at such times and in such manner as he thinks appropriate on matters relating to victims or
witnesses of offences or anti-social behaviour.
Following the conclusion of a consultation process as provided for in section 33, the first Code
of Practice for Victims of Crime was issued by the Home Secretary in 2005, and came into force
on 3 April 2006.242 Victims are defined in paragraph 3.1 of the Code as “any person who has
made an allegation to the police, or had an allegation made on his or her behalf, that they have
been directly subjected to criminal conduct”. The Code identifies two additional categories of
victims, namely “vulnerable victims” and “intimidated victims”. Vulnerable victims are entitled to
additional supports, and are defined as (a) persons under the age of 17 at the time of the offence,
or (b) persons whose evidence is likely to be diminished by reason of the fact that the person
suffers from a mental disorder or otherwise has a significant impairment of intelligence and social
functioning.243 Intimidated victims are also eligible for an enhanced service under the Code, and
are defined as victims of criminal conduct whose evidence is likely to be diminished by reason of
fear or distress.244 Any complainant in respect of a sexual offence or domestic abuse and the
relatives of those who have died as a result of criminal conduct are eligible for an enhanced
service under the Code unless the victim has informed the service provider of the victim’s wish
not to be so considered.245
A key feature of the Code of Practice for Victims of Crime is the entitlement to support. The
Code states that “[a]ll victims, including relatives of victims who have died as a result of relevant
criminal conduct, should have access to a range of support services in their area.” However, the
strength of such entitlement is somewhat weakened by the fact that the Code does not specify a
single organisation which has responsibility under the Code to ensure appropriate support
services are available for every victim. The code goes on to state that support for victims “needs
to be timely and of sufficient quality to meet the individual needs of every victim, including
242
Code of Practice for Victims of Crime (2006).
243
Paragraphs 4.2 and 4.3.
Paragraph 4.6. Paragraph 4.7 states that “In determining whether a victim falls within the definition [of an
intimidated victim] the service provider must take into account, in particular- (a) the nature and alleged circumstances
of the offence to which the proceedings relate; (b) the age of the victim; (c) such of the following matters as appear to
the service provider to be relevant, namely- (i) the social and cultural background and ethnic origins of the victim, (ii)
the domestic and employment circumstances of the victim, and (iii) any religious beliefs or political opinions of the
victim; (d) any behaviour towards the victim on the part of- (i) the accused, (ii) members of the family or associates of
the accused, or (iii) any other person who is likely to be an accused or a witness in the proceedings.”
244
245
Paragraph 4.9.
74
victims who require specialist support.”246 Paragraph 5.3 requires the police to ensure that victims
are provided with information about local support services and contact details for those services.
The Code also sets out in detail the obligations on all criminal justice agencies that interact with
victims of crime. Part 5 sets out the obligations on the police. In addition to the obligation to
provide information about local support services noted above, the police are obliged to inform
the victim as soon as possible if a decision is made not to press charges.247 The Code of Practice
also sets out the duties owed to the victim during the investigation process, including the
entitlement to be notified, on at least a monthly basis, of progress in cases being actively
investigated up until the point of closure of the investigation.248 The Code also provides for the
appointment of Family Liaison Officers, who must be assigned to any relatives where a victim
has died as a result of criminal conduct or suspected criminal conduct.249 Detailed guidelines are
issued to the police in respect of provision of information to victims of crime in relation to arrest
and bail,250 and decisions to bring criminal proceedings251 including the imposition of time limits
within which such information is to be provided. For example, if a suspect is arrested on
suspicion of an offence, the police must notify the victim of this within one working day for
vulnerable or intimidated victims and no later than five working days for all other victims.252
Part 6 of the Code of Practice for Victims of Crime sets out the obligations of joint police/CPS
Witness Care Units,253 including the conduct of a full needs assessment with all victims where a
“not guilty” plea is entered,254 notification for victims of any requirement to give live evidence,255
notification of the date of all criminal court hearings256 and provision of an information leaflet
246
Ibid at paragraph 1.6.
247
Paragraph 5.2.
248
Paragraph 5.9.
249
Paragraph 5.13.
250
Paragraphs 5.14-5.17.
251
Paragraphs 5.18-5.20.
252
Paragraph 5.14.
Witness Care Units were established in 2003 under the “No Witness No Justice” pilot project, a joint Crown
Prosecution Service and police project. The Project comprised a joint initiative between the police and crown
prosecution service, involving the appointment a multi-agency team who work with victims and witnesses who will
give evidence at trial to ensure they receive the necessary help and support in order to give their evidence effectively.
There are 165 Witness Care Units in each of the 42 criminal justice areas in England and Wales.
253
254
Paragraph 6.2.
255
Paragraph 6.3.
256
Paragraph 6.4.
75
entitled “Witness in Court”.257 In respect of vulnerable or intimidated victims, there is an
additional obligation to provide information in respect of the outcome of all pre-trial hearings
and the verdict of the trial, including the sentence if the accused person is convicted.258 The joint
police/CPS Witness Care Units must explain to victims the meaning and effect of the sentence
given to the offender in their case, and respond to any questions the victim may have.259 Witness
Care Units are also obliged to inform victims of the issue of any warrants in respect of the
accused,260 and also if any appeal is lodged by the offender in the event of conviction.261
The obligations of the Crown Prosecution Service are set out in Part 7 of the Code, including the
duty to ensure that victims are informed of charging decisions taken by the CPS,262 or any
decision to substantially alter or drop any charge.263 However, it is accepted at paragraph 7.5 that
in certain circumstances, the prosecutor may decide in accordance with CPS guidance that it is
inappropriate or unnecessary in the particular circumstances to notify the victim, or that for legal
reasons, no explanation beyond setting out the tests in the Code for Crown Prosecutors can be
given. The CPS has an additional obligation set out in paragraph 7.7 in relation to cases involving
a death allegedly caused by criminal conduct, such as murder, manslaughter, dangerous driving or
careless driving, cases of child abuse, sexual offences, racially and religiously aggravated offences
and offences with a homophobic or transphobic element. In such cases, the CPS must offer to
meet the victims and explain a prosecution decision where a prosecutor decides not to bring any
criminal proceedings, or where a decision is made to drop or substantially alter charges, unless
the prosecutor concludes that in all the circumstances a meeting ought not to take place in which
case he or she must record in writing the reason for that conclusion. The CPS must ensure that,
where circumstances permit, prosecutors or, if prosecutors are unavailable, other representatives
of the CPS introduce themselves to victims at court and answer any questions victims may have
about court procedures and give an indication where possible of how long they will have to wait
before giving evidence.264
257
Paragraph 6.5.
258
Paragraph 6.7.
259
Paragraph 6.8.
260
Paragraphs 6.10-6.11.
261
Paragraphs 6.12-6.14.
262
Paragraph 7.2.
263
Paragraph 7.4.
264
Paragraph 7.9.
76
Part 8 of the Code sets out the obligations of the Courts Service, including the notification of
Witness Care Units in relation to all hearings,265 and the duty to ensure that, where possible, at
criminal proceedings victims have a separate waiting area and a seat in the courtroom away from
the defendant’s family or friends.266
Given the very recent currency of the coming into force of the Code of Practice for Victims of
Crime, no evaluations of its impact have as yet been published. While many of the provisions
have the potential to improve the situation of victims of crime within the criminal justice system,
it should be noted that the entitlements provided appear to fall short of enforceable obligations.
Thus, section 34 of the Domestic Violence, Crime and Victims Act 2004 Act sets out the
consequences of non-compliance, providing that failure to perform a duty imposed by the Code
of Practice does not render a person liable to criminal or civil proceedings. The Code of Practice
sets out a complaints procedure in the event of non-compliance: if the victim feels that any of the
service providers has not delivered their obligations under the Code, they should discuss their
complaint with the person they have been dealing with at that organisation. Following this, they
should make a complaint through the internal complaints procedure of that service provider.267 If
the victim is not satisfied with the outcome of the internal complaints procedure of the serviceprovider concerned, he or she may refer the issue, through a member of parliament, to the
Parliamentary Ombudsman for consideration.268 In drafting the Code of Practice, the Home
Secretary thus declined to adopt the recommendations of Victim Support269 and Liberty270 that
consideration be given to the appointment of a dedicated Ombudsman for Victims. Although the
Act provides for the appointment of a Commissioner for Victims, restrictions on the powers of
the Commissioner would appear to preclude the holding of an investigation or inquiry into an
individual case.271
(b)
Australia
Research in Australia in recent times has also reflected a growing concern for the rights and
needs of victims, with a survey in South Australia on crime victims reporting that 90% of those
265
Paragraph 8.2.
266
Paragraph 8.4.
267
Paragraph 16.1.
268
Paragraph 16.2.
269
Victim Support, Manifesto, (2001).
270
Liberty, The Rights of Crime Victims: A Manifesto for a Better Criminal Justice System (2003).
Thus, section 51 of the Domestic Violence, Crime and Victims Act 2004, entitled “Restrictions on exercise of
functions”, provides: “The Commissioner must not exercise any of his functions in relation to— (a) a particular victim
or witness; (b) the bringing or conduct of particular proceedings…”.
271
77
interviewed had some emotional problems after the offence, while a similar proportion suffered a
financial cost.272 Warner and Gawlik note that:
“in recent decades, attempts have been made to accommodate the interests of victims in
the criminal justice system. The impetus for this trend came first from
the victims’
movement, and more recently from the restorative justice movement. The victims’
movement has focused on welfare services for victims and procedural rights for victims,
while proponents of restorative justice seek more fundamental change.”273
Findlay, Odgers and Yeo note that “several jurisdictions such as the Australian Capital Territory,
New South Wales, Queensland and Western Australia have legislatively prescribed lists of
guidelines to ensure that victims are no longer ignored by the criminal justice system”.274
Section 3 of the New South Wales Victims Rights Act 1996 states that “the object of this Act is
to recognise and promote the rights of victims of crime.” Section 5 sets out the definition of a
victim of crime, subsection (1) providing:
“a ‘victim of crime’ is a person who suffers harm as a direct result of an act committed,
or apparently committed, by another person in the course of a criminal offence.”
Harm is defined in subsection (2) as actual physical bodily harm or psychological or psychiatric
harm, or the taking, destruction or damage of a person’s property. Section 5(3) provides that if
the person dies as a result of the act concerned, a member of the person’s immediate family is
also a victim of crime for the purposes of the Act.
Part 2 of the New South Wales Victims Rights Act 1996 sets out the Charter of Victims’ Rights,
which lists seventeen rights of victims, including the right to be treated with courtesy,
compassion and respect,275 the right to information at the earliest possible opportunity of the
services and remedies available to victims,276 access to services,277 information about the
K. Warner and J. Gawlik, “Mandatory Compensation Orders for Crime Victims and the Rhetoric of Restorative
Justice” (2003) Australian and New Zealand Journal of Criminology 60 at p.73.
272
273
Ibid. at p.60.
274
M. Findlay, S. Odgers and S. Yeo, Australian Criminal Justice (3rd ed, Oxford University Press, 2005) at p.366.
275
Paragraph 6.1 of the Charter of Victims’ Rights.
276
Paragraph 6.2.
277
Paragraph 6.3.
78
investigation and prosecution of the crime,278 information about the trial process and the victim’s
role as witness.279 There are clear similarities between the provisions of the New South Wales
Charter of Victims’ Rights and the Queensland Declaration of Fundamental Principles of Justice
for Victims of Crime which is contained in Part 2 of the Criminal Offence Victims Act 1995.280
As with other jurisdictions, however, the New South Wales Charter of Victims’ Rights would
appear to fall short of offering legal entitlements to the rights outlined therein. Section 7 of the
Victims Rights Act 1996 provides for the implementation of the Charter, providing:
“(1) The Charter of Victims Rights is, as far as practicable and appropriate, to
govern the treatment of victims in the administration of the affairs of the State.
(2) Any agency or person exercising official functions in the administration of the affairs
of the State (other than judicial functions) must, to the extent that it is relevant and
practicable to do so, have regard to the Charter of Victims Rights in addition to any
other relevant matter.”
Furthermore, section 8 of the 1996 Act provides that “[n]othing in this Part gives rise to, or can
be taken into account in, any civil cause of action”, nor does it create any legal rights not in
existence before the enactment of the legislation. Similarly, the Queensland Declaration of
Fundamental Principles of Justice for Victims of Crime does not confer legally enforceable rights,
but rather is regarded as establishing a set of guidelines for the treatment of victims by public
officers in the criminal justice system. Breach of these guidelines can render an officer liable to
discipline proceedings within his or her own department.281
Part 3 of the Victims Rights Act 1996 provides for the establishment of a Victims of Crime
Bureau, whose functions are set out in section 10 as follows:
278
Paragraphs 6.4.
279
Paragraph 6.6.
For example, the Queensland Declaration of Fundamental Principles of Justice for Victims of Crime includes
references to fair and dignified treatment (section 6); access to justice (section 7); guidelines to help response to victims
(section 8); protection from violence and intimidation from accused person (section 12); information about
investigation and prosecution of offender (section 15); advice to victim on role as witness (section 16); and information
about services (section 17).
280
B. Cook, F. David and A. Grant, Victims’ Needs, Victims’ Rights: Policies and Programs for Victims of Crime in Australia
(Australian Institute of Criminology, Research and Public Policy Series No. 19, 1999).
281
79
“(a) to provide information to victims of crime about support services and
compensation for victims of crime, and to assist victims of crime in the exercise of their
rights,
(b) to co-ordinate the delivery of support services for victims of crime and to encourage
the effective and efficient delivery of those services,
(c) to promote and oversee the implementation of the Charter of Victims Rights,
(d) to receive complaints from victims of crime about alleged breaches of the Charter of
Victims Rights and to use its best endeavours to resolve the complaints.”
In addition to the issue of an Annual Report, the Victims of Crime Bureau is also entitled to
make a special report to the Minister for presentation to Parliament on any matter arising in
connection with the exercise of its functions.282
Finally, Part 4 of the Victims Rights Act 1996 provides for the establishment of a Victims’
Advisory Board whose membership is to be drawn from the police force, Attorney General’s
office, other relevant government agencies and the general community. The functions of the
Victims Advisory Board include advising the Minister on policies and administrative
arrangements relating to support services and compensation for victims of crime, to consult
victims of crime, community victim support groups and Government agencies on issues and
policies concerning victims of crime, and to promote legislative, administrative or other reforms
to meet the needs of victims of crime.
(c)
Canada
Several of the Canadian provinces have enacted measures dedicated to supporting victims of
crime. A notable example is the province of Manitoba, which passed the Victims Bill of Rights in
2000. The long title to the Bill of Rights refers to the needs, concerns and interests of victims, the
entitlement of victims to be given information regarding the investigation, prosecution and
disposition of crimes and the public interest in giving guidance and direction to persons
employed in the justice system about the manner in which victims should be treated. Part 2 of
the Bill of Rights deals with victims’ rights and access to services, setting out an extensive list of
the entitlement of victims vis-à-vis the various criminal justice agencies, including the right to
information from police agencies including information as to services available to victims of
crime,283 the right to an interview by officers of the same gender in sexual offence cases,284 the
282
Section 11 of the Victims of Crime Act 1996.
283
Section 4 of the Bill of Rights.
284
Section 5.
80
right to information about prosecutions,285 and the right to information about court
administration including the right to a separate waiting area at court.286 Among the rights
conferred on victims in respect of the correctional services is the right to request a meeting with
offender, which is provided for in section 21 as follows:
“A victim who wishes to explain to the offender the impact of the offence on the victim
and his or her family may request the Commissioner of Correctional Services to arrange
a meeting of the victim with the offender.”
Also noteworthy is the provision in section 26 of the Bill of Rights that the victim is to be
granted time off for parts of the trial, providing:
“The employer of a person who is a victim must grant him or her, on written
request, sufficient time off work, without pay, to attend the trial of the person
accused of committing the offence, for the purpose of
(a) testifying;
(b) presenting a victim impact statement to the court; or
(c) observing any sentencing of the accused person.”
Section 26(2) provides that time off for this purpose is not to affect seniority or benefits.
Part 3 of the Bill of Rights provides for the appointment of a Director of Victim Services, whose
functions are to promote the principles set out in the Bill of Rights, provide victims and their
families with general information respecting programs and services for victims and the structure
and operation of the criminal justice system, and to provide information to the public about the
Act, using pamphlets, notices, and any other means that will effectively communicate the
information to the public.287 The Director of Victim Services is also charged with receiving and
investigating complaints in accordance with section 28, which provides that upon investigating
each complaint the Director must “take or recommend any step that the director considers
necessary to address the victim's concerns and any systemic concern raised by the complaint.”288
Section 28(3) of the Bill of Rights requires the Director to make every reasonable effort to
provide the victim with a report on the investigation within 30 days of receiving the complaint,
with the report to include details of any steps taken or recommended to address the complaint
285
Sections 12-15.
286
Sections 17 and 18.
287
Section 39(2) of the Bill of Rights.
288
Section 28(2).
81
and the victim's right to make a complaint to the Ombudsman about the investigation or
report.289
There are many apparent similarities between the Newfoundland Victims of Crime Services Act
1988 (as amended) and other common law measures already reviewed in this respect.290 While
various commentators have criticised the enactment of unenforceable victims’ rights charters, the
1988 Act at times appears to employ strikingly non-legal rhetoric; section 4 of the Act provides:
“(1) The hardships created by an offence against the laws of society should be
shared by society as a whole, and victims should be helped in addressing their
particular needs and concerns.
(2) When a person breaks the law that person shows a disregard for those who may be
harmed and that person owes a debt to society generally and to victims, whether or not
the offence has affected a specific, identified victim.”
Notwithstanding such criticism, the Act does go on to provide for victims’ entitlements to access
to services and information, although such provisions are expressed in non-mandatory form.291
(d)
New Zealand
The New Zealand Victims Rights Act 2002 came into force on 17 October 2002 with the stated
purpose of improving provisions for the treatment and rights of victims of offences. Section 7 of
the 2002 Act deals with the treatment of victims, providing that any person (in the criminal
justice context) who deals with a victim should treat the victim with courtesy and compassion
and respect the victim's dignity and privacy. Section 8 provides detail on access to services,
stating:
“A victim or member of a victim's family who has welfare, health, counselling, medical,
or legal needs arising from the offence should have access to services that are responsive
to those needs.”
289
Section 28(4).
For example, section 3 provides that “(1) Victims should be treated with courtesy, compassion and with respect for
their dignity and privacy.”
290
Thus, section 5 on access to services provides “It is recognized that victims, their dependants, guardians and
spouses should have access to social, legal, medical and mental health services that respond to their needs.” [Emphasis
added]
291
82
However, the force of these provisions is undermined by the provisions of section 10, which
provides that the principles contained in sections 7 to 9 “do not confer on any person any legal
right that is enforceable, for example, in a court of law.”
The 2002 Act also sets out victims’ entitlement to information on such matters as programmes,
remedies, and services,292 and information about proceedings including the progress of the
investigation of the offence, the charges laid or reasons for not laying charges, and all changes to
the charges laid, the victim’s role as a witness in the prosecution of the offence and the
disposition of all proceedings relating to the offence, including any convictions or sentences
imposed.293 Additional rights are conferred on victims of sexual violation or other serious assault,
serious injury or death, or offences of another kind that have led to the victim having ongoing
fears on reasonable grounds for his or her physical safety or security; or for the physical safety or
security of one or more members of his or her immediate family.”294 These rights include notice
of release on bail of accused or offender,295 notice of temporary release, escape or death of
accused or offender,296 and notice of proposal to consider making deportation order and of
hearing of appeal against deportation order.297 Pursuant to section 40, victims are also entitled to
appoint a representative who can receive information on the victim's behalf, and ensure that the
victim is given and understands any notice given.
Section 28 of the 2002 Act further deals with victims’ views on an application for an order
prohibiting permanently publication of the name of the accused; if such an application is made
on behalf of the accused or offender, the prosecutor is obliged to make all reasonable efforts to
ensure that any views the victim has on the application are ascertained and must inform the
Court of any views ascertained.
The complaints procedure under the Victims Rights Act 2002 is also somewhat limited; section
49 provides that a victim may complain to an Ombudsman, the Police Complaints Authority, or
the Privacy Commissioner depending on the nature of the complaint. Section 50 states that the
Act does not require any person to pay any money, whether by way of damages, compensation,
or otherwise to any person simply by reason of a breach of any of the provisions of the Act.
292
Section 11.
293
Section 12.
294
Section 29.
295
Section 34.
296
Section 35.
297
Section 39.
83
The New Zealand Human Rights Commission has noted that the goals of ensuring victims have
the opportunity to be heard and that due weight is given to their views in court proceedings are
consistent with the aims of empowering victims and ensuring genuine participation. The
Commission concluded that although this is recognised to some extent in the Victims’ Rights
Act, “some of the provisions could be strengthened and consideration could be given to
providing for victims to be represented in their own right in the criminal justice process.
Adopting a more uniform approach to compensation and reparation would also be consistent
with the international instruments.”298
The Victim as Witness
(a)
United Kingdom
As in Ireland, it is frequently commented that in Britain victims have “traditionally had little role
other than as a source of evidence”.299 By the closing decades of the 20th century there was
growing awareness of the difficulties experienced by victims in this context, particularly
vulnerable witnesses such as children,300 the elderly,301 and victims of rape.302 In August 1992 the
Home Office and Department of Health published the Memorandum of Good Practice on Video
Recorded Interviews with Child Witnesses for Criminal Proceedings to support the implementation of
provisions in the Criminal Justice Act 1991 which permitted certain child witnesses to give their
evidence via video-recorded statement. Subsequently, videotaped interviews conducted according
to the Memorandum became the preferred method of hearing children’s evidence in criminal
proceedings, particularly in cases involving allegations of sexual abuse.
Building upon the measures recommended in the Memorandum, the Home Office in 1998
published Speaking Up for Justice,303 the report of an interdepartmental working group on the
treatment of vulnerable or intimidated witnesses, including children in the criminal justice system.
New Zealand Human Rights Commission, Inquiry into the Place of Victims in the Criminal Justice System: Submission to the
Justice and Electoral Select Committee (7 September, 2006) at paragraph 8.2.
298
L. Zedner, “Victims” in M. Maguire, R. Morgan & R. Reiner (eds) Oxford Handbook of Criminology (Oxford University
Press, 2002) at p.439, referring to M. Joutsen “Victim Participation in Proceedings and Sentencing in Europe” (1994) 3
International Review of Victimology 57.
299
300
R. Morgan & L. Zedner, Child Victims: Crime, Impact and Criminal Justice (Oxford University Press, 1992).
R. Mawby, “Age, vulnerability and the impact of crime” in M. Maguire & J. Pointing (eds) Victims of Crime: A New
Deal? (Open University Press, 1988) at 101.
301
302
J. Temkin, Rape and the Legal Process (Sweet & Maxwell, London, 1987).
303
Home Office, Speaking Up for Justice (London, 1998).
84
The report contained 78 recommendations for the improvement of the criminal justice system
from the perspective of victims and witnesses. These recommendations centred on the definition
of a vulnerable or intimidated witnesses, identification of intimidated and vulnerable witnesses,
measures to provide protection and reassurance to intimidated witnesses, communication
between the police and CPS about a witness’ needs, ensuring appropriate interview methods are
used, investigative and pre-trial support measures, procedures for applying for special measures
to be available at the trial, a range of measures available for use at the trial to assist vulnerable or
intimidated adults and children, and the continuation of any necessary measures after the trial. A
number of publications were subsequently issued as part of “Action for Justice”, the
implementation programme for the measures contained in Speaking Up for Justice.304
Many of these recommendations were contained in the Youth Justice and Criminal Evidence Act
1999, Part II of which contained several provisions specifically concerning the protection of
witnesses.305 As Zedner notes, the Act:
“provides for vulnerable or intimidated victims to be screened in court, or to give
evidence by live link or in camera; for the removal of wigs and gowns; for the
admissibility of video-recorded evidence in chief and cross-examination; and for the
examination of witnesses through an intermediary. It provides also for the protection of
certain witnesses from cross-examination by the accused in person; and restricts the
cross-examination of rape complainants about their sexual history.”306
The first national witness satisfaction survey was conducted in 2000, and found that 76% of
witnesses were fairly or very satisfied with their overall treatment in the criminal justice system.
However, almost 20% stated they were intimidated by the process of giving evidence, while
almost 40% said they would not be happy to be a witness again.307 Arising from the 2000 survey,
the agencies of the criminal justice system were given a joint performance target, to improve the
satisfaction level of witnesses with their treatment by the system by five percentage points by
2002, and at least maintain this level of performance thereafter. In 2002 the results of the second
See, e.g., Home Office, Consultation Paper on Achieving Best Evidence in Criminal Proceedings for Vulnerable or Intimidated
Witnesses, Including Children (2000), Home Office, Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable or
Intimidated Witnesses, including Children (2001).
304
See A. Ashworth, “Victims’ Rights, Defendants’ Rights and Criminal Procedure” in A. Crawford and J. Goodey
(eds) Integrating a Victim Perspective within Criminal Justice (Ashgate, 2000).
305
L. Zedner, “Victims” in M. Maguire, R. Morgan & R. Reiner (eds) Oxford Handbook of Criminology (Oxford University
Press, 2002) at p.439.
306
307
E. Whitehead, Key findings from the Witness Satisfaction Survey 2000 (Home Office Research Findings No. 133, 2001).
85
national witness satisfaction survey were published,308 which found that 78% of witnesses were
satisfied with their experience overall – an increase of 2% since 2000. Satisfaction among victim
witnesses increased by 4% between 2000 and 2002. Just over a quarter (26%) of all witnesses
reported feeling intimidated by an individual while just over a fifth (21%) felt intimidated by the
process of giving evidence or by the court environment. Nearly a quarter of witnesses (23%) felt
their contribution was taken for granted, and only half (52%) felt fully appreciated.
(b)
Australia
Special measures in respect of the victim as witness also apply in Australia. For example, in South
Australia witnesses under 16 years of age, persons suffering from an intellectual disability, victims
of an alleged sexual offence or persons who are at some special disadvantage may be entitled to
the benefit of section 13 of the Evidence Act 1929, which deals with the protection of witnesses.
Section 13(1) of the 1929 Act provides that if it is practicable and desirable to make special
arrangements for taking evidence from a witness in order to protect the witness from
embarrassment or distress, to protect the witness from being intimidated by the atmosphere of a
courtroom, or for any other proper reason, the court should, subject to stated exceptions, 309
order that special arrangements be made for taking the evidence of that witness. Section 13(2)
provides a number of examples of the types of orders which may be made, including:
“(a) an order that the evidence be given outside the courtroom and transmitted to the
courtroom by means of closed circuit television;
(b) an order that a screen, partition or one-way glass be placed to obscure the
witness’s view of a party to whom the evidence relates or some other person;
(c) an order that the witness be accompanied by a relative or friend for the purpose
of
providing emotional support.”
Special measures exist in relation to the taking of evidence of children and vulnerable persons in
New South Wales. Part 6 of the Criminal Procedure Amendment (Vulnerable Persons) Act 2007,
which defines “vulnerable person” as a child or an intellectually impaired person,310 allows for the
308
H. Angle, S. Malam and C. Carey, Key findings from the Witness Satisfaction Survey 2002 (Home Office, 2003).
The exceptions to this rule are stated in subsections (3) and (4), and provide that an order must not be made under
subsection (1) if it would prejudice any party to the proceedings or if its effect would be to relieve a witness from the
obligation to give sworn evidence, to submit to cross-examination; or would prevent the judge or jury, from seeing and
hearing the witness while giving evidence.
309
310
Section 306M(2) provides that a person is regarded as intellectually impaired if the person has:
(a) an appreciably below average general intellectual function, or
(b) a cognitive impairment (including dementia or autism) arising from, or as a result of, an acquired brain
injury, neurological disorder or a developmental disorder, or
(c) any other intellectual disability.
86
recording of out of court statements by vulnerable persons,311 the giving of evidence by
vulnerable persons via recording,312 and the giving of evidence by closed circuit television.313
Section 306ZK sets out the right of a vulnerable person to the presence of a supportive person
while giving evidence. Section 306ZK(2) specifically states that the vulnerable person is entitled
to choose the person he or she wishes to have present while giving evidence, while subsection (3)
goes on to state that, without limiting the vulnerable person’s right to choose such person, that
person:
“(a) may be a parent, guardian, relative, friend or support person of the child, and
(b) may be with the child as an interpreter, for the purpose of assisting the child with any
difficulty in giving evidence associated with a disability, or for the purpose of providing
the child with other support.”
Similarly, in Queensland, 9E of the Evidence Act 1977 sets out the following principles for
dealing with a child witness:
“(1) Because a child tends to be vulnerable in dealings with a person in authority, it is the
Parliament's intention that a child who is a witness in a proceeding should be given the
benefit of special measures when giving the child's evidence.
(2) The following general principles apply when dealing with a child witness in a
proceeding(a) the child is to be treated with dignity, respect and compassion;
(b) measures should be taken to limit, to the greatest practical extent, the
distress or trauma suffered by the child when giving evidence;
(c) the child should not be intimidated in cross-examination;
(d) the proceeding should be resolved as quickly as possible.”314
(c)
Canada
In criminal proceedings, while the general rule is that all proceedings against an accused shall be
held in open court, the federal Criminal Code sets out exceptions, including those which are
311
Section 306Q.
312
Section 306U.
313
Section 306ZB.
314
A child is defined in section 9E(3) as a child under 16 years.
87
intended to protect the privacy of victims. The Code includes provisions referred to as
testimonial aids and other measures which assist vulnerable victims and witnesses in providing
their testimony in criminal court. These provisions recognise that some victims and witnesses
may be more vulnerable because of their youth or other factors such as the nature of the
crime.315 Thus, subsection 486(1) permits the exclusion of the public in certain circumstances,
namely “if the judge or justice is of the opinion that such an order is in the interest of public
morals, the maintenance of order or the proper administration of justice or is necessary to
prevent injury to international relations or national defence or national security.” For the
purposes of subsection (1), the “proper administration of justice” includes ensuring that the
interests of witnesses under the age of eighteen years are safeguarded in all proceedings, and
justice system participants who are involved in the proceedings are protected. Sections 486(3) and
(4) provide for an order prohibiting publication of the identity of sexual offence victims and
certain witnesses.
Other provisions are intended to facilitate the participation of witnesses, include section 486(1.2)
which permits a support person to be present in court with a witness under the age of 14 years,
or who has a mental or physical disability, in sexual offence proceedings. Section 486(2.1) permits
a witness who is under the age of 18 years or who has difficulty communicating, to provide their
testimony from behind a screen or by closed circuit TV, where the judge is of the opinion that
this is necessary to obtain a full and candid account. This provision applies in proceedings for
sexual offences and other specified offences. Section 486(2.3) provides that, in sexual and
personal violence offence proceedings, generally, a self-represented accused shall not personally
cross-examine a witness under 18 years of age. The court may appoint counsel for the accused to
conduct such cross-examination. Section 715.1 permits, in proceedings relating to sexual
offences, that where the victim or witness was under the age of 18 at the time the alleged offence
occurred, a videotape, describing the acts complained of and made within a reasonable time after
the offence, is admissible in evidence, if the victim or witness, while testifying, adopts the
contents of the videotape.
Furthermore, section 715.2 permits, in proceedings relating to sexual offences, that where the
victim or witness has difficulty communicating due to a disability, a videotape describing the acts
complained of and made within a reasonable time after the offence, to be admissible in evidence,
if the victim or witness, while testifying, adopts the contents of the videotape.
315
Department of Justice, Improving the Experience of Victims and Witnesses in Court (October 2006).
88
(d)
New Zealand
A preliminary paper by the New Zealand Law Commission on the review of the court system,
Striking the Balance,316 suggested that victims in New Zealand were dissatisfied with their
experience of the courts.317 In the discussion paper that followed the Law Commission
acknowledged the need to take victims’ views into account, and improve provision of
information and court facilities for victims as a way of ensuring access to justice for victims of
crime.318 It subsequently recommended that the treatment of victims would be improved if judge
had a discretion to permit all witnesses to be screened while giving evidence, or to give evidence
on video where need is established, regardless of the nature of the crime; and that victims should
have access to separate rooms at all courts.
In its response to the Law Commission report, the New Zealand government noted that trial
judges generally had a discretion to allow witnesses to be screened while giving evidence if
necessary, and that all courts have a secure facility that can be made available if there is a need for
that facility on any given day.319 However, the government reaffirmed its commitment to
ensuring victims have access to separate rooms in courts where possible so that they are not
forced to encounter offenders. The Government thus noted that the Service Charter issued by
the Ministry for Justice required that separate rooms be provided for distressed victims.
The Evidence Act 2006 implemented some of the changes recommended as part of this process.
Section 102 provides for directions as to alternative means of giving evidence, conferring on
judges a very wide discretion as to the circumstances in which such alternative means may be
ordered. Section 102(3) outlines the grounds on which an application that a witness is to give
evidence in an alternative way may be made, including:
(a) the age or maturity of the witness;
(b) the physical, intellectual, psychological, or psychiatric impairment of the witness;
(c) the trauma suffered by the witness;
(d) the witness's fear of intimidation.
316
New Zealand Law Commission, Striking the Balance (Preliminary Paper No.51, 2002).
See New Zealand Law Commission, Seeking Solutions (Preliminary paper No.52, 2002) at p.41. Among the
complaints listed by victims were long periods of waiting both before and at hearings, a lack of facilities at court,
having to be too close to defendants or their supporters and being intimidated, the trauma of recounting in public very
private details relating to the crime, a fear of cross-examination to test their credibility, a general lack of responsiveness
to their needs.
317
318
Ibid at 45.
Ministry of Justice, Government Respondent to the Law Commission Report on Delivering Justice for All (2004) at paragraph
149.
319
89
Section 104 provides that if an application for directions is made under section 103, before giving
any directions about the way in which a witness is to give evidence in chief and be crossexamined, the judge must give each party an opportunity to be heard in chambers, and may
require a report from a qualified person on the effect on the witness of giving evidence in the
ordinary way or any alternative way. Section 105 sets out the alternative means by which evidence
may be given, including that the witness gives evidence while in the courtroom but unable to see
the defendant or some other specified person; or from an appropriate place outside the
courtroom, either in New Zealand or elsewhere; or by a video record made before the hearing of
the proceeding.
Specific measures for the way in which child complainants are to give evidence are set out in
section 105, which obliges the prosecution to apply to court in advance of the trial for directions
as to the way in which the complainant is to give evidence in chief and be cross-examined. When
considering an application under subsection (1), the judge must have regard to the need to ensure
the fairness of the proceeding and that there is a fair trial, and the views of the complainant, in
particular the need to minimise the stress on the complainant and the need to promote the
recovery of the complainant from the alleged offence.
The Victim in Sentencing
(a)
United Kingdom
In 1960 the Streatfield Committee declared that the “cardinal principle … is that sentences
should be based on reliable, comprehensive information relevant to what the court is seeking to
do”.320 Ashworth notes that the next three decades saw great increases in the supply of social
inquiry reports to courts.321 The content of pre-sentence reports in the United Kingdom are
governed by the National Standards for the Supervision of Offenders in the Community,322 which includes
an offence analysis which should assess the consequences of the offence, including what is
known of the impact on the victim, either from the CPS papers or from a victim statement where
available.
320
Report of the Interdepartmental Committee on the Business of the Criminal Courts (HMSO, 1961).
321
A. Ashworth, Sentencing and Criminal Justice (4th ed, Cambridge University Press, 2005) at p.348.
322
(Home Office, 2000).
90
In 1996, as a result of the Victims Charter a pilot scheme was introduced in Britain allowing
victims to make a statement on the harm caused by the offence. Subsequently, the “Victim
Personal Statement” scheme was extended across the country in October 2001.323 Victims of
crime were entitled to be informed of their right to make a victim personal statement in the
course of making a statement to the police, and also enjoyed the right to update this statement at
any time before the trial. Soon after the introduction of the scheme, the Lord Chief Justice,
Woolf LJ, issued a Practice Direction setting out the proper approach to be adopted in respect of
such statements by the courts:
“The court must pass what it judges to be the appropriate sentence having regard to the
circumstances of the offence and of the offender taking into account, so far as the court
considers it appropriate, the consequences to the victim. The opinions of the victim or the
victim's close relatives as to what the sentence should be are therefore not relevant, unlike
the consequence of the offence on them. Victims should be advised of this. If despite the
advice, opinions as to sentence are included in a statement, the court should pay no
attention to them…”324
The use of victim impact statements in the United Kingdom has been the subject of continued
debate. Some commentators support the use of such statements, saying “these schemes enhance
justice and empower victims, ending the tradition by which victims are forgotten or made
invisible”.325 Others are more critical of the use of victim statements, on the basis that the
purpose of such statements is often confused and can give rise to unrealistically heightened
expectations by victims.326 A study commissioned by the Home Office on the Victim Statements
Pilots in 1998327 found that approximately 30% of victims availed of the opportunity to make a
statement. Of those who did participate, about one third felt better for having done so, while
18% were upset by the process. Ashworth notes that one possible disadvantage of the victim
impact statement is the possibility that it might increase create or exacerbate fear of reprisal from
the offender.328
See J. Graham, K. Woodfield, M. Tibble and S. Kitchen, Testaments of Harm: A Qualitative Evaluation of the Victim
Personal Statements Scheme (Home Office, 2004).
323
324
[2001] 1 WLR 2038.
A. Sanders, “Victim Impact Statements: Don’t Work, Can’t Work” [2001] Crim. L.R. 447 at p.448, referring to E.
Erez, “Who's Afraid of the Big Bad Victim? Victim Impact Statements as Victim Empowerment and Enhancement of
Justice” [1999] Crim. L.R. 545.
325
See J. Chalmers, P. Duff & F. Leverick, “Victim Impact Statements: Can Work, Do Work” [2007] Crim. L.R. 360 at
p.362.
326
327
C. Hoyle & E. Cape, Evaluation of the One-Stop Shop and Victim Statement Pilots (Home Office, 1998).
328
A. Ashworth, Sentencing and Criminal Justice (4th ed, Cambridge University Press, 2005) at p.355.
91
Arising from an ongoing debate about the “rebalancing” of the criminal justice system in the
United Kingdom, in 2005 the Department for Constitutional Affairs published a Consultation
Paper on Hearing the Relatives of Murder and Manslaughter Victims (2005). As a result of the proposals
contained in that paper, a pilot scheme was introduced in five courts between April 2006 and
April 2007 in England and Wales allowing the relatives of victims in murder and manslaughter
cases to “make a personal statement in court before sentence on how the death has affected
them, either directly themselves, or through a lawyer or suitable representative”.329 No evaluation
in respect of this pilot scheme is available at present.
(b)
Australia
It would appear that each of the Australian territories include provision for the making of victim
impact statements by victims of crime.330 Paragraph 6.14 of the New South Wales Charter of
Victims Rights provides:
“A relevant victim should have access to information and assistance for the preparation
of any victim impact statement authorised by law to ensure that the full effect of the
crime on the victim is placed before the court.”
Victim Impact Statements are provided for by Part 2, Division 3 of the New South Wales Crime
(Sentencing Procedure) Act 1999. Section 28 provides that a court, if it considers it appropriate
to do so, may receive and consider a victim impact statement “at any time after it convicts, but
before it sentences, an offender.” The formal content of a victim impact statement is governed
by section 30 of the 1999 Act, which provides that a victim impact statement must be in writing
and must comply with such other requirements as are prescribed by the regulations. Subsection
(2) provides that if a primary victim is incapable of providing information for a victim impact
statement about the personal harm suffered, a member of the primary victim’s immediate family
or other representative of the victim may, act on behalf of the victim for that purpose.331
329
Department for Constitutional Affairs, Hearing the Relatives of Murder and Manslaughter Victims (2005), paragraph 45.
B. Cook, F. David and A. Grant, Victims’ Needs, Victims’ Rights: Policies and Programs for Victims of Crime in Australia
(Australian Institute of Criminology, Research and Public Policy Series No. 19, 1999), Appendix 2: Legislation Relating
to Victims of Crime. However, it should be noted that the making of victim impact statements in Queensland is based
on “a limited and implied legislative foundation, supported by common law rationale and propositions governing their
application”: M. Thomas, They Do Things Differently There: Issues Arising from the Queensland Experience of Victim Impact
Statements (Paper presented at the Restoration for Victims of Crime Conference convened by the Australian Institute of
Criminology in conjunction with Victims Referral and Assistance Service and held in Melbourne, September 1999).
330
A primary victim is a person against whom the offence was committed, or who was a witness to the act of actual or
threatened violence, and who has suffered personal harm as a direct result of the offence. A family victim is a person
who is, at the time the offence was committed, a member of the immediate family of a primary victim of the offence
who dies as a direct result of that offence (whether or not the person suffered personal harm as a result of the offence).
331
92
The right of an individual to make a victim impact statement in Victoria is guaranteed by section
95A of the Sentencing Act 1991. Section 95C of the 1991 Act provides that where the victim has
prepared a victim impact statement, the victim must file a copy with the court a reasonable time
before sentencing is to take place, and provide a copy to both the offender (or his or her legal
representatives), and the prosecutor. Section 95D provides that the court may, at the request of
the offender or prosecutor, call a witness who has made a victim impact statement to give
evidence and the victim may be cross-examined and re-examined. Section 95E further provides
that a victim, or a person who has made a victim impact statement on behalf of a victim, may call
a witness to give evidence in support of any matter contained in the victim impact statement or
in a medical report attached to it.
(c)
Canada
As noted above, section 3 of the Manitoba Victims Bill of Rights 2000 stipulates the information
which must be provided to a victim by the law enforcement agency responsible for investigating
an offence. Among this information is the right, once charges have been laid, to be informed of
the form of a victim impact statement designated under section 722 of the Criminal Code.
Section 722(1) provides as follows:
“For the purpose of determining the sentence to be imposed on an offender or whether
the offender should be discharged pursuant to section 730 in respect of any offence, the
court shall consider any statement that may have been prepared in accordance with
subsection (2) of a victim of the offence describing the harm done to, or loss suffered
by, the victim arising from the commission of the offence.”
Section 722(2.1) of the Code provides that as soon as practicable after a finding of guilt and in
any event before imposing sentence, the court shall inquire of the prosecutor or a victim of the
offence, or any person representing a victim of the offence, whether the victim or victims have
been advised of the opportunity to prepare a statement referred to in subsection 722(1). If the
victim has been so advised and wishes to exercise the right to make a statement, the procedure
for such statements is set out in subsection (2), which provides that the statement must be
prepared in writing in the prescribed form and filed with the court. The presentation of a
statement is governed by subsection (2.1), which provides that the court shall, on the request of a
victim, permit the victim to read the victim impact statement or to present the statement in any
Immediate family includes the victim’s spouse, de facto, same sex partner, child or step-child, parent, guardian or stepparent of the victim, brother, sister, step-brother or stepsister of the victim: section 26 of the Crime (Sentencing
Procedure) Act 1999.
93
other manner that the court considers appropriate. Subsection (3) goes on to state that whether
or not a statement has been prepared and filed in accordance with subsection (2), the court may
consider any other evidence concerning any victim of the offence for the purpose of determining
the sentence to be imposed on the offender or whether the offender should be discharged. For
the purposes of section 722, “victim” is defined as:
“(a) means a person to whom harm was done or who suffered physical or emotional
loss as a result of the commission of the offence; and
(b) where the person described in paragraph (a) is dead, ill or otherwise incapable of
making a statement referred to in subsection (1), includes the spouse or common-law
partner or any relative of that person, anyone who has in law or fact the custody of that
person or is responsible for the care or support of that person
or any dependant of
that person.”
(d)
New Zealand
Victim impact statements are provided for in the Victims Rights Act 2002. Section 17(1) of the
2002 Act provides that:
“the prosecutor must make all reasonable efforts to ensure that information is
ascertained from the victim, for submission … to the judicial officer sentencing the
offender, about the following matters:
(a) any physical injury or emotional harm suffered by the victim through, or by
means of, the offence; and
(b) any loss of, or damage to, property suffered by the victim through, or by
means of, the offence; and
(c) any other effects of the offence on the victim.”
Additional safeguards are provided in respect of victims under 17. Section 18 provides that in
such cases the prosecutor must make all reasonable efforts to ensure that the victim is informed
of the purpose of the submission of the information, the obligation to ensure that any
information given by the victim is true, the requirement for the information to be recorded and
possibly verified, and the identity of persons who may see or keep copies of the information.
Section 19 deals with the form of the victim impact statement in New Zealand, providing that
information obtained from a victim must be put into writing or recorded in another way (for
94
example, on audiotape or videotape), unless the victim objects to it being submitted to the
judicial officer sentencing the offender.
Having regard to concerns such as those identified by Ashworth, of the potential for victim
impact statements to exacerbate victims’ fear of intimidation, section 25 of the Act contains an
important safeguard for the rights of victims. Section 25 provides:
“A judicial officer may, on his or her own initiative or on an application for the purpose,
order that an offender and every lawyer (if any) representing the offender not be given
or shown any part of a victim impact statement if, in the judicial officer's opinion,
withholding the part is necessary to protect the physical safety or security of the victim
concerned.”
However, the effect of an order under section 25 is to preclude a judicial officer from taking into
account in sentencing the offender that part of the victim impact statement.
Compensation
(a)
United Kingdom
In common with most common law jurisdictions, victims of crime in the United Kingdom may
seek damages only in civil courts but not in criminal proceedings. However, the idea of making
offenders pay compensation to their victims was introduced in 1972 by the Criminal Justice Act
1972 in respect of injury, loss or damage.332 Ten years later, the Criminal Justice Act 1982
amended the legislation on compensation orders with the intention of increasing their use; these
provisions made it possible to make a compensation order as the sole order in a case, and also
required that in cases where both fines and compensation orders were imposed, the
compensation order must take priority over the payment of the fine. The strength of the
compensation order was further increased by section 104 of the Criminal Justice Act 1988, which
required the court to consider making a compensation order in every case involving death, injury,
loss or damage, and required a court to give reasons if no compensation order is made in such a
case. The jurisdiction of magistrates’ courts to make compensation orders was further extended
by the Criminal Justice Act 1991 which raised the maximum amount which could be ordered
from £2,000 to £5,000. Zedner states that “these developments signified a major shift in
penological thinking, reflecting the growing importance attached to reparation over the more
Based on the recommendations of the Report of the Advisory Council on the Penal System, Reparation by the Offender
(1970).
332
95
narrowly retributive aims of conventional punishment”.333 The provisions relating to
compensation orders in the United Kingdom were consolidated by sections 130-134 of the
Powers of Criminal Courts (Sentencing) Act 2000.
Ashworth identifies two practical drawbacks to the compensation order from the perspective of
the victim.334 The first is that such an order can only be made if the offender is identified,
prosecuted, convicted and has the means to pay. Secondly, the increased use of diversion
schemes such as police cautions has led to fewer cases being brought to court over the last 20
years, and when the rising use of custody is factored in, the likelihood of an offender being
ordered to pay compensation is limited. However, Ashworth suggests that the introduction of a
conditional caution may render some improvement in the situation,335 as one of the conditions
which may be imposed on cautioned offenders is that they pay a specified amount of
compensation to the victim. Research in the United Kingdom among victims of crime has
demonstrated that victims prefer to receive some money, even if not full compensation, from the
offender rather than from any other source.336
In addition to the availability of compensation orders, there also exists in the United Kingdom a
state scheme for criminal injuries compensation, which was established in 1964 to make
discretionary payments to victims of crime. Although originally operated on a non-statutory
basis, this scheme developed into the Criminal Injuries Compensation Scheme based on the
Criminal Injuries Compensation Act 1995.337 The minimum award which can be made by the
Criminal Injuries Compensation Authority is £1,000 and many commentators have noted that
the effect of this lower ceiling is to exclude victims of minor assaults and robberies.338 A new
tariff scheme was introduced in 1995 in an attempt to address the spiralling cost of payments and
growing backlog of cases: the tariff groups injuries into 25 bands, each receiving a standard fixed
payment (from £1,000 to £250,000). Persons incapacitated as a result of their injury for 28 weeks
or more are entitlement to a separate payment for loss of earnings and the cost of any necessary
special care if available. The criminal injuries compensation scheme has been criticised on a
number of grounds, including the “arguably derisory figure of £7,500” which is payable to the
L. Zedner, “Victims” in M. Maguire, R. Morgan & R. Reiner (eds) Oxford Handbook of Criminology (Oxford University
Press, 2002) at p.440-441.
333
334
See above.
Introduced by Part 3 of the Criminal Justice Act 2003; see A. Ashworth, Sentencing and Criminal Justice (4th ed,
Cambridge University Press, 2005) at p.25.
335
336
J. Shapland, J. Willmore and P. Duff, Victims in the Criminal Justice System (Heinemann, London, 1985).
337
See generally D. Miers, State Compensation for Criminal Injuries (Blackstone, London, 1998).
338
See, e.g., A. Ashworth, Sentencing and Criminal Justice (4th ed, Cambridge University Press, 2005) at p.299.
96
family in cases of fatal injury, while the tariff scheme has been attacked for unduly limiting
maximum awards and for failing to take full account of loss of earnings.339 However, unlike the
Irish scheme there is at least some measure of compensation allowed for pain and suffering.
(b)
Australia
New South Wales enacted the first Australian compensation scheme in 1967,340 followed by
Queensland in 1968,341 South Australia in 1969,342 Western Australia in 1970,343 Victoria in
1972.344
The New South Wales the Victims Compensation Tribunal is now governed by the Victims
Support and Rehabilitation Act 1996 (as amended). Section 6 of the 1996 Act defines the
categories of persons who are eligible for compensation as primary and secondary victims of acts
of violence,345 and a family victim of an act of violence. Acts of violence are defined in section 5
as follows:
“an act or series of related acts, whether committed by one or more persons:
(a) that has apparently occurred in the course of the commission of an offence, and
(b) that has involved violent conduct against one or more persons, and
(c) that has resulted in injury or death to one or more of those persons.”
Schedule 1 of the 1996 Act sets out a table of “compensable injuries” along with a specified
average amount of compensation in respect of each injury, up to a maximum of $50,000. The
Schedule includes chronic psychological or psychiatric disorder as compensable injuries which
are divided into “moderately disabling” and “severely disabling”.346 Domestic violence is also
L. Zedner, “Victims” in M. Maguire, R. Morgan & R. Reiner (eds) Oxford Handbook of Criminology (Oxford University
Press, 2002) at p.442.
339
340
Criminal Injuries Compensation Act 1967.
341
Queensland Criminal Code Chapter LXVA.
342
Criminal Injuries Compensation Act 1969.
343
Criminal Injuries Compensation Act 1970.
344
Criminal Injuries Compensation Act 1972.
Section 7 defines a primary victim as a person who receives a compensable injury, or dies, as a direct result of that
act, while section 8 defines a secondary victim as a person who receives a compensable injury as a direct result of
witnessing the act of violence that resulted in the compensable injury to, or death of, the primary victim of that act.
345
It should be noted, however, that “moderately disabling” psychological or psychiatric disorder is only compensable
where an act of violence has occurred in the course of the commission of offences of armed robbery, abduction or
kidnapping: Schedule 1, section 5. No such limitations appear to exist in respect of severely disabling psychological or
psychiatric disorder.
346
97
listed as a compensable injury, with the definition of domestic violence set out at Schedule 1,
section 7A as follows:
“(a) injury resulting from an act that occurred in the commission of a domestic
violence offence,
(b) without limiting paragraph (a), injury arising from the intimidation or stalking of a
person …apparent contravention of an apprehended violence order in force”
The list of persons in respect of whom domestic violence offences may be committed include
spouses, persons in a de facto relationship, person who have an “intimate personal relationship”,
whether or not that relationship involved a relationship of a sexual nature, and persons living in
the same household. Section 21 of the Victims Support and Rehabilitation Act 1996 also
provides for the making of special payments for approved counselling services in respect of
victims or relevant family members.
Section 67 of the 1996 provides for the establishment of a Victims Compensation Fund, from
which all statutory compensation payments are to be made. Interestingly, section 69 of the Act
provides that monies to be paid into the Victims Compensation Fund include “all proceeds or
profits confiscated under the Confiscation of Proceeds of Crime Act 1989 and all money
required by the Criminal Assets Recovery Act 1990 to be credited to the Fund” in addition to
money advanced to the fund by the Treasurer or appropriated by Parliament.
In Victoria, the objectives of the Victims of Crime Assistance Act 1996 are set out at section 1 of
the Act as follows:
“(a) to assist victims of crime to recover from the crime by paying them financial
assistance for expenses incurred, or reasonably likely to be incurred, by them as a direct
result of the crime; and
(b) to pay certain victims of crime financial assistance (including special financial
assistance) as a symbolic expression by the State of the community's sympathy and
condolence for, and recognition of, significant adverse effects experienced or suffered by
them as victims of crime; and
(c) to allow victims of crime to have recourse to financial assistance under this Act where
compensation for the injury cannot be obtained from the offender or other sources.”
Similar to the New South Wales scheme, the Victoria statute divides those eligible for assistance
into three categories: primary victims, secondary victims and related victims. Compensation is
98
dispensed by the Victims of Crime Assistance Tribunal which is established by Part 3 of the Act.
However, unlike the New South Wales scheme, the Victoria statute does not include legislative
provision for counselling; however, through the government funded Victims Referral and
Assistance Service (VRAS) there is a provision for ten sessions of counselling free of charge.347
(c)
Canada
In Canada, financial compensation for victims of violent or personal crimes is administered by
the provinces, according to their own rules and standards. The Manitoba Bill of Rights provides
for the establishment of a financial compensation scheme in two ways: the creation of a Victims'
Assistance Fund and Compensation for Victims of Crime. The Victims Assistance Fund is
established by 40(1), and is held under the control and supervision of the Minister of Finance.
Section 43 governs the use of the fund, providing that the minister may request that payments be
made from the fund:
“(a) to promote, deliver and administer services for victims;
(b) to conduct research into the needs and concerns of victims and into services for
victims;
(c) to distribute information respecting services for victims;
(d) to make grants with respect to programs and services that benefit victims of crime;
and
(e) to pay the costs of administering this Act.”
Part 5 of the Bill of Rights sets out the scheme of Compensation for Victims of Crime. Eligibility
for compensation pursuant to this scheme is addressed in section 46, which provides that an
application for compensation may be made in respect of a person who is injured or dies as a
result of an event that occurs in Manitoba, and which is caused by an act or omission of another
person contrary to the Criminal Code (Canada) specified in the regulations, or occurs while the
person does or attempts to do any of the following:
(i) lawfully arrest a person or preserve the peace,
(ii) assist a peace officer in the execution of his or her duty, or
(iii) lawfully prevent the commission of an offence or suspected offence under the
Criminal Code (Canada).
B. Cook, F. David and A. Grant, Victims’ Needs, Victims’ Rights: Policies and Programs for Victims of Crime in Australia
(Australian Institute of Criminology, Research and Public Policy Series No. 19, 1999), Appendix 2: Legislation Relating
to Victims of Crime.
347
99
Section 46 stipulates that a charge or conviction is not necessary in order for an application for
compensation to be made. Compensation payable to a victim in respect of his or her injury
consists of expenses incurred by the victim in respect of the injury and:
(a) if the victim is disabled by the injury, compensation for loss of wages; and
(b) if the victim is permanently impaired by the injury, compensation for the
impairment.348
(d)
New Zealand
New Zealand courts are empowered to require an offender to pay reparation to the victim of his
or her crime. These powers are now contained in the Sentencing Act 2002. Part 2 of the 2002
Act contains detailed provisions on sentences of reparation. Section 32 provides that:
“a court may impose a sentence of reparation if an offender has, through or by
means of an offence of which the offender is convicted, caused a person to suffer—
(a) loss of or damage to property; or
(b) emotional harm; or
(c) loss or damage consequential on any emotional or physical harm or
loss of, or damage to, property.”
Section 32(2) provides that notwithstanding subsection (1), a court must not impose a sentence
of reparation in respect of emotional harm, or loss or damage consequential on emotional harm,
unless the person who suffered the emotional harm is a person captured by the definition of
“victim” in section 4, paragraph (1).
In order to assist the court in determining the appropriateness of ordering an offender to make
reparation, section 33 provides that a court may order a probation officer to prepare a reparation
report for the court, to address:
(a) the value of any loss or damage to property;
(b) in the case of emotional harm, the nature of that harm and [the value of] any
consequential loss or damage;
(c) in the case of any loss or damage consequential on physical harm, the nature and
value of the loss or damage;
(d) the financial capacity of the offender;
(e) the maximum amount that the offender is likely to be able to pay under a
sentence of reparation; and
348
Section 47.
100
(f) the frequency and magnitude of any payments that should be required under a
sentence of reparation, if provision for payment by instalments is thought desirable.
Section 33(3) further provides that in order to assist with the preparation of a reparation report,
a court may direct the offender to make a declaration as to his or her financial capacity.
Section 34 provides that the person charged with preparing the reparation report must attempt to
gain agreement between the offender and the victim on the amount that should be paid by way
of reparation. If agreement is reached then the terms of that agreement should be reported to the
court,349 and in cases where no agreement is reached the person charged with preparing the
reparation report must state the respective positions of the offender and the victim, and
determine the value of any loss or damage which must be stated in the report. Notwithstanding
the provisions of section 34, it is stated that the victim is not obliged to meet with the offender
or otherwise participate in the preparation of the report.350
Section 35 of the 2002 Act provides for the taking into account the financial capacity of the
offender, stating:
“If the offender has insufficient means to pay the total value of the loss, damage, or
harm, the court may sentence the offender to make—
(a)reparation for any amount that is less than the value of the loss,
damage, or harm; or
(b)payment by instalments in respect of the loss, damage, or harm; or
(c)both”
Similar to the scheme which operates in the United Kingdom, in cases where both a sentence of
reparation and a fine are imposed, section 35(2) requires priority to be given to the payment of
the reparation. Warner and Gawlik are critical of the use of mandatory reparation orders,
describing them as “a token gesture repackaged as restorative justice to gain public support for
the administration of justice”, and call for an exploration of the potential for a more effective
integration of restorative compensation into conventional criminal justice systems.351
349
Section 34(2).
350
Section 34(4).
K. Warner and J. Gawlik, “Mandatory Compensation Orders for Crime Victims and the Rhetoric of Restorative
Justice” (2003) Australian and New Zealand Journal of Criminology 60 at p.73.
351
101
102
7.
SELECT BIBLIOGRAPHY
The Constitution
Art. 38.1
Art. 38.2
Art. 40.3
Legislation
Ireland
Criminal Justice Act 2007
Criminal Justice Act 2006
EU Commission Decision Establishing Standard Forms for the Transmission of Applications
and Decisions Pursuant to Council Directive 2004/80/EC (2006/337/EC), OJ L 125/25
EU Council Directive Relating to Compensation to Crime Victims (2004/80/EC), OJ L 261/15
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Civil Legal Aid Act 1995
Criminal Justice Act 1993
Criminal Evidence Act 1992
103
Criminal Law (Rape) (Amendment) Act 1990
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Criminal Justice (Evidence) Act 1924
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United Kingdom
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Criminal Justice Act 1982
Criminal Justice Act 1988
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Australia
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Criminal Assets Recovery Act 1990 [New South Wales]
104
Criminal Code [Queensland]
Criminal Injuries Compensation Act 1967 [New South Wales]
Criminal Injuries Compensation Act 1969 [South Australia]
Criminal Injuries Compensation Act 1970 [Western Australia]
Criminal Injuries Compensation Act 1972 [Victoria]
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Canada
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105
New Zealand
Evidence Act 2006
Victims Rights Act 2002
Sentencing Act 2002
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106
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107
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118
APPENDIX 1
1.
QUESTIONNAIRE
Did you provide a response to the 2006 Evaluation Survey conducted by the
Commission for the Support of Victims of Crime?
Yes / No (please delete as appropriate)
1A.
If No, what service/s does your organisation/project provide to victims
of crime?
_________________________________________________
_________________________________________________
1B.
If Yes, has the service you offer to victims of crime changed since you
provided the 2006 response, and if so, How?
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
2.
In your view, do victims of crime in your area receive an adequate service?
Yes / No (please delete as appropriate)
2A.
If No, why not?
_________________________________________________
_________________________________________________
_________________________________________________
3.
What additional service/s, if any, would you like to be able to offer victims of
crime now?
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
4.
How do you envisage the services provided to victims of crime by your
organisation developing in three years’ time?
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
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5.
What is your understanding of the role of the Commission for the Support of
Victims of Crime now?
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
6.
How do you envisage the role of the Commission for the Support of Victims
of Crime or an equivalent body developing in three years’ time?
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
7A.
Is there anything specific the Commission for the Support of Victims of Crime
should do to provide a better service now for your organisation and for victims
of crime in your area?
________________________________________________
________________________________________________
________________________________________________
________________________________________________
________________________________________________
________________________________________________
7B.
Which activity do you think the Commission should prioritise in its allocation
of funding?
(Please rank 1, 2, 3 etc in order of importance, with 1 as most important):
___
Support for court accompaniment services
___
Support for input into legal change for victims’ rights
___
Provision of advocacy services for victims generally
___
Provision of training to victim support groups
___
Support for groups providing counselling to victims of crime
___
Provision of networking or representation functions for local/regional groups
___
Funding of groups on a three-year rather than an annual basis
___
Other (please specify) __________________________
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8.
Please give names and details of any groups that you know about in your area
providing services to victims of crime that are not being funded by the
Commission for the Support of Victims of Crime.
_________________________________________________
_________________________________________________
_________________________________________________
9. Are there any other key issues for your organisation in providing support to
victims of crime? Examples might include: interaction with gardai; changing
profile of victims; or changing forms of victimisation.
_________________________________________________
_________________________________________________
_________________________________________________
10.
Is there anything else relevant you would like to add? Please specify:
_________________________________________________
_________________________________________________
_________________________________________________
________________________________________________
Thank you for taking the time to complete this survey.
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APPENDIX 2
Completed questionnaires were returned by the designated deadline from the following
organisations:
1. Adapt, Rosbrien, Co. Limerick
2. AdVIC (Advocates for Victims of Homicide), Swords, Co. Dublin
3. Amen, Navan, Co. Meath
4. Ascend, Roscrea, Co. Tipperary
5. Barnardo’s, Mulhuddart, Dublin 15
6. Beacon of Light Counselling Centre, Clondalkin, Dublin 22
7. Clare Haven Services, Ennis, Co. Clare
8. Court Support Services, Four Courts, Dublin 7
9. Cuan Saor Women’s Refuge, Clonmel, Co. Tipperary
10. Domestic Violence Advocacy Service Sligo (formerly Waves), Sligo
11. Drogheda Women’s Refuge, Drogheda, Co. Louth
12. Irish Centre for Parentally Abducted Children, Ringsend, Dublin 4
13. Inishowen Women’s Outreach, Inishowen, Co. Donegal
14. Irish Tourist Assistance Service, Dublin 2
15. Kerry Women’s Refuge, Tralee, Co. Kerry
16. Laois Support Services against Domestic Violence, Portlaoise, Co. Laois
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17. Letterkenny Women’s Centre, Letterkenny, Co. Donegal
18. Mayo Women’s Support Services, Castlebar, Co. Mayo
19. Mna Feasa Women’s Domestic Violence Project, Knockaheeny, Co. Cork
20. Muintir Na Tire, Tipperary Town, Co. Tipperary
21. National Crime Victims Helpline, Camden Row, Dublin 8
22. One in Four, Holles Street, Dublin 2
23. OSS Cork, South Main Street, Cork
24. Rape Crisis Network of Ireland, Galway
25. Ruhama, Drumcondra, Dublin 9
26. Sexual Violence Centre Cork, Camden Place, Cork
27. Support After Crime Services, Anglesea Street, Cork
28. Women’s Aid Dundalk, Dundalk, Co. Louth
29. Federation for Victim Assistance, Tralee, Co. Kerry
30. Victim Support, Blarney Street, Cork
31. Dublin Rape Crisis Centre, Leeson Street, Dublin 2
32. Three other organisations (two dealing with domestic violence; one with
psychotherapeutic counselling) returned questionnaires completed on an anonymous
basis.
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APPENDIX 3
Garda Support Measures for Victims of Crime
(Source: http://www.garda.ie/angarda/vimsup.html)
1. Support for Victims of Crime
Timely and accurate support for victims of crime is a core duty and responsibility of all members
of An Garda Síochána. Quality victim support processes and procedures:
1. facilitate supportive two-way communication and dialogue among victimised persons,
investigating Gardaí and professionally trained victim support staff
2. enables the provision of physical, informational, psychological and emotional support and
advice for victims and their families
3. help prevent feelings of anger, revenge and trauma caused by isolation and misunderstandings
resulting from misinformation or unrealistic expectations
People who are traumatised as a result of crime or other incidents which require a Garda
response have the right to Garda support and incident related information. Such victim support
services must be delivered in accordance with Garda service standards. Investigating Gardaí will
be respectful, helpful, courteous and professional.
2. Garda Charter for Victims of Crime
The Garda Charter for Victims of Crime has been updated to take account of current victims
support expectations and new developments in our victim support services and networks. It is
currently being circulated and published in nine languages on the Garda Síochána Website www.garda.ie. The revised Garda Charter for Victims of Crime sets out the services and service
delivery standards which An Garda Síochána is committed to delivering to victims. All victims
will be treated in a courteous, helpful, respectful and professional manner by every member of
An Garda Síochána.
A victim means any person or group of people who individually or collectively, directly or
indirectly, suffer harm as a result of a crime or other traumatic incident, which requires a Garda
response.
3. Revised Victim Support Services
Henceforth, members of An Garda Siochana will refer victims of crime to the National Crime
Victims Helpline 1850 211 407. Victims of crime who are tourists will be referred to the Irish
Tourist Assistance Service (ITAS).
National Crime Victims Helpline
This new service provides a single point of contact for victims of crime. It is operated by
experienced volunteers who have received training in counselling and listening skills. Currently,
volunteers operating the Crime Victims Helpline provide emotional and informational support
for victims of crime. Skilled volunteers advise victims of the relevant support services available at
local and national level.
4. Garda Referral and Informational Procedure
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Members of An Garda Síochána taking incident reports from victims of crime will inform each
victim of available support services and provide each victim with the Crime Victims Helpline
number, in writing. Gardaí will interact with victim support services at local level and assist
victims who wish to contact local victim support services. Gardaí will work in partnership with
statutory and voluntary agencies and victim support organisation to ensure the provision of
physical, informational, psychological and emotional support and advice for victims and their
families.
Where a crime incident is reported to An Garda Síochána and the victim is a tourist, then contact
will be made immediately with the Irish Tourist Assistance Service (ITAS) by telephone - 01
4785295 (with the victim's expressed consent). This is to ensure that appropriate and coordinated assistance is delivered every time. Telephone contact will be followed by written
referrals.
5. Garda Family Liaison Officers
Garda Family Liaison Officers are appointed to keep victims' families informed of the progress
of the investigation and to ensure that they are afforded appropriate and relevant emotional,
psychological, informational and practical support.
The local Superintendent will appoint a Garda Family Liaison Officer to families of victims, who
have been or are being subjected to emotional or psychological trauma related to incidents /
crimes of:






Homicide
Kidnappings
False imprisonment
Hostage siege situations
Crime (other than above) where violence or an immediate threat of violence has been
visited upon the victim.
Suicide and road traffic fatalities
In cases of rape and other sexual offences a member of the investigating team, approved by the
local Superintendent, will perform the functions of the Garda Family Liaison Officer. The
services of a Garda and doctor of the same gender will, as far as possible, be made available to
victims.
The victim will be told about the availability of local specialist agencies dealing with sexual
offences. Gardaí will show special sensitivity in relation to sexual offences.
6. Garda PULSE Generated Letters to Victims of Crime
When a person becomes the victim of a crime and it is reported to An Garda Síochána, a letter
will be completed and forwarded to the victim informing him / her of the name of the
investigating Garda, how to contact the Garda, details of the PULSE Incident Number and the
number of the Crime Victims Helpline or ITAS as appropriate.
The purpose of this letter is to provide feedback to the victim and to enable him / her to make
appropriate enquiries at any PULSE networked Garda Station on the current status of the case. It
also affords the victim a further opportunity to avail of victim support services. A full list of
organisations providing support for victims of crime will be attached to this letter.
This affords the victim an opportunity to make an informed choice, in his / her own time, in
relation to availing of appropriate victim support services. The ultimate objective is to facilitate
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the victims in availing of appropriate victims support services and to avoid causing secondary
victimisation.
A second letter will be sent to the victim in all cases where a person is made amenable for the
crime (e.g. charged to appear in court, summoned to court or dealt with under the Adult
Cautioning Scheme or the Juvenile Diversion Programme). This letter is intended to improve
communication with victims of crime and provide timely feedback.
Conclusion.
Members of An Garda Síochána will work with the Commission for the Support of Victims of
Crime, statutory and voluntary agencies and victim support services to ensure that victims are
afforded appropriate victims support in a caring, confidential, sympathetic and structured
manner.
If you are not fully satisfied or if you have any enquiries, suggestions or feedback on any aspect
of the treatment of victims of crime by members of An Garda Síochána write or call direct to:
The Garda Family Liaison Officer, Community Relations, Harcourt Square, Harcourt Street,
Dublin 2.
Telephone number: 01 - 6663802 E-mail: crimprev@iol.ie or to your local Garda Superintendent.
A reply will issue within 21 days.
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