Government Approves Major Legislative Package that will meet Concerns of Victims of Crime
The Minister for Justice, Equality & Law Reform, Mr. Dermot Ahern T.D., announced today that the Government has approved his proposals for far-reaching reforms to the law on a range of issues, many of them designed to meet the concerns of victims of crime. The measures will be in the Criminal Procedure Bill which the Minister expects to publish next Spring. This Bill represents the legislative element of the ‘Justice for Victims’ initiative which he announced in June of this year.
The Minster said: "We must maintain confidence in the criminal justice system. I am very aware of the need to respect long established principles, such as the presumption of innocence and the right to a fair trial and I will defend those principles at every opportunity. However, confidence will be eroded if we do not respond to changes in society, in technology and to new patterns of crime. I am convinced that the system must be seen to be responsive to the needs of society generally but it must be especially aware of the trauma and distress of the victims of crime."
This Bill draws on several of the major recommendations of the Balance in the Criminal Law Review Group, which was chaired by Dr. Gerard Hogan SC. These new proposals are groundbreaking and include, in particular:
- Reform of the victim impact statement mechanism, in particular, to give a statutory right to make a statement to family members in homicide cases or in cases where the victim is incapacitated as a result of the crime or where the victim is a child or is unable to make a statement due to a mental disorder.
- A new procedure where the DPP can apply for a court order to have cases re-tried following an acquittal where compelling new evidence later emerges.
- An appeal against an acquittal and an application by the DPP for a court order for a re-trial in cases where an acquittal occurs due to an error in law by a trial judge.
- An application by the DPP for a court order to re-try a person following an acquittal, where evidence exists of tampering with the trial process, including witness intimidation or perjury.
- Reform the law on character evidence to enable the prosecution to respond where, during the trial, unwarranted and vexatious imputations are made against the character of deceased or incapacitated victims or witnesses.
- Provide for the advance disclosure to the prosecution of expert evidence which the defence proposes to introduce.
- Establish a written procedure that will allow for the early return of property to victims, where that property may constitute evidence in criminal trials.
Minister Ahern concluded: "The Government's decision underlines its ambition to broaden the participation of victims in the criminal process. The legislation will not only give them a voice through the use of victim impact statements, it will also provide for the vigorous pursuit of justice on behalf of victims. I am confident that these proposals will have the support of victims and of the Irish people".
The General Scheme of the new Criminal Procedure Bill is available on the Department’s website www.justice.ie
28 December 2008
Notes for Editors
1. Criminal Procedure Bill 2009
The General Scheme of the Criminal Procedure Bill 2009 is available on the webpage of the Department of Justice, Equality & Law Reform. The Bill is part of the package of measures which comprise the "Justice for Victims Initiative" announced by the Minister in June 2008. The Scheme of the Bill is divided in five parts, as follows;
Part I – Preliminary and General
These are standard provision setting out the Bill’s short title, the commencement arrangements as well as definitions, repeals and standard provisions on expenses.
Part 2 – Victims of Crime
This Part reforms the present law regarding victim impact statements along the lines recommended by the Balance in the Criminal Law Review Group. The objective is to expand the range of persons who may present a victim impact statement to the court. In particular it ensures that family members of victims who are deceased or incapacitated as a result of the crime are entitled to make a victim impact system, as well as in cases where the victim is a child or is suffering from a mental disorder.
Part 3– Exceptions to the Rule against Double jeopardy
This Part implements the recommendations of the Report of the Review Group concerning the circumstances in which cases may be re-tried following an acquittal. It is being proposed that the DPP may apply for a retrial where there is new or newly discovered evidence or where evidence of trial tampering emerges.
The proposals represent limited exceptions to the rule against double jeopardy. That rule states that where a trial process has concluded, a person should not be put at risk of being punished again for the same offence.
Part 4 – Appeals
In this Part, the DPP is being granted powers to bring appeals against directions by the trial judge where those directions result in an acquittal. The new provision relates to "with prejudice" prosecution appeals, i.e. appeals that can result in the earlier acquittal being overturned. There is already a ‘without prejudice’ system of appeals which allows for clarifications on points on law but it does not have any implications for the acquittal that gave rise to the appeal,
Safeguards in Parts 3 and 4
The procedures for reopening and retrial of cases mentioned in Parts 3 and 4 above are accompanied by several safeguards, including
(i) The procedure applies only to cases tried on indictment (but in cases where new evidence emerges, the possibility of seeking a retrial applies only if the offence in question is one that carries a mandatory or potential maximum life sentence).
(ii) The DPP must make an application to the Court of Criminal Appeal and may do so only once in respect of any acquittal.
(iii) In cases where new evidence is the basis for the application to retry the acquitted person, the Gardaí may, in the course of the investigation into the new evidence, wish to exercise certain powers in respect of the acquitted person (for example, taking samples, carrying out searches). It will be necessary for the Gardaí to get prior authorisation from a judge of the District Court for the use of these powers in the case of a previously acquitted person.
(iv) The application is to be on notice to the person whom it is proposed to retry (except where the court accepts there is a danger of flight by the person, in which case the application may be ex parte).
(v) The court may, where it is satisfied that publicity about an application or its order may hinder or prejudice a retrial or in the interests of justice generally, make an order prohibiting or restricting publication of details about a case.
(vi) The person whom it is proposed to retry has access to legal aid for the purposes of the hearing of the DPP’s application (this is separate from any other legal aid entitlements).
(vii) The person may not be retried except where that court makes an order to that effect.
Part 5 – The Giving of Evidence
The Part amends some of the procedures relating to evidence. These include;
(a) Amending the rules regarding the admission of evidence of character, to allow the prosecution to introduce evidence of the accused’s previous character or evidence of the good character of the victim where the accused had made imputations against the character of victims or witnesses who are deceased or incapacitated or where the accused had introduced evidence as to his / her own good character. The new provisions are to apply whether or not the accused has introduced the character evidence directly in his or her own evidence or via other witnesses.
(b) Providing for the advance disclosure to the prosecution of expert evidence to be admitted by the defence in criminal trials.
(c) Providing for a system to facilitate the prompt return, where appropriate, of evidence to victims where that evidence is their own property. A procedure whereby the prosecution and defence will agree statements on the evidential value, etc of the object is envisaged.
2. Justice for Victims Initiative
The Minister for Justice, Equality and Law Reform, Mr. Dermot Ahern T.D. announced, in June 2008, a major new initiative for victims of crime entitled the Justice for Victims Initiative. It has legislative and administrative elements. Today’s announcement concerns the latest developments on the preparation of the legislation.
The administrative elements include:
- The establishment in September 2008 of a new Executive Office of the Department of Justice, Equality and Law Reform, known as the Victims of Crime Office. Its function is to support crime victims, focusing on the co-ordination of delivery of services.
- Also in September, Commission for the Support of Victims of Crime was reconstituted. Its role is to distribute funding to groups working with crime victims, as well as providing general oversight of services and promoting awareness.
- A Consultative Forum is currently being established. It will liaise with the commission and will provide a forum where the views of victims and their representatives can be articulated. The first meeting is scheduled to take place in January 2009.
3. Balance in Criminal Law Review Group
The Balance in the Criminal Law Review Group was established in November 2006 under the Chairmanship of Dr Gerard Hogan S.C. to examine whether the balance struck in the criminal law between the interests of the community and the victim on the one hand and the accused on the other is appropriate. The membership included officials from the Department of Justice, Equality and Law Reform and the Offices of the Attorney General and the DPP, academics and a member of the Commission for the Support of Victims.
In formulating its views the Group met with and received submissions from numerous parties including victims’ groups. The Group submitted its final report to the Minister in March 2007.
A number of the recommendations in the Report have already been implemented by means of the Criminal Justice Act 2007, in particular the recommendations concerning the right to silence.
The Report is available on the Department’s website at www.justice.ie