Speech by Mr. Alan Shatter T.D., Minister for Justice, Equality and Defence at Dublin Castle on Thursday 12 April, 2012, to open the conference EU Directive on Victims’ Rights: Opportunities and Challenges for Ireland
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I am particularly pleased to be here today to open this conference on victims of crime. The conference is using the lens of the current draft EU directive to consider the very important topic of victims of crime. It is a topic which has long been of interest to me and on which I have endeavoured to take action. Ten years ago, when in Opposition, I tabled a Victims of Crime Bill, and four years ago I produced a second Private Members Bill on the same topic. Sadly neither Bill was adopted by the Government of the day. Just over a year ago, I was instrumental in ensuring that a commitment to enact legislation to strengthen the rights of victims of crime was included in the Programme for Government.
EU Directive – recent history
Shortly after my appointment as Minister for Justice, Equality and Defence, the EU Commission published its proposals for a directive on rights, supports and protections of victims of crime, in May 2011. Under the Lisbon Treaty Ireland must opt-in if it wishes to be covered by any legal instrument in what is termed the Area of Freedom, Security and Justice. I am pleased that I was able to convince my Cabinet colleagues to opt in and that the parliamentary scrutiny of the proposal was able to be completed in July. This meant we could take part in the negotiations on the draft directive and influence the eventual outcome.
My Polish ministerial colleague on the European Council in its Justice and Home Affairs configuration and the team of Polish presidency officials ensured that the Council twice considered different drafts of the directive. I was glad to be able to speak in support of the proposal at European level. Thanks to the work of the Council, our Polish colleagues and our colleagues in the current Danish Presidency, the Council is now involved in the first reading of the draft directive with the European Parliament and the European Commission.
To those who have not engaged or followed the European Union legislative process, this may seem like a long time. In fact significant progress has been made in a relatively short time frame. I understand that the MEPs put down hundreds of amendments. After the Parliament’s recent vote on the dossier these amendments have been rationalised but still number in the hundreds. The Danish Presidency has stated that it wishes to bring discussions with the Parliament to a successful conclusion by the end of their presidency in June.
EU Directive – Overview
The draft directive provides a wide range of measures to support victims of crime. The comprehensive nature of the directive is to be welcomed. Its transposition into Irish law, once it has been adopted at EU level, will mark a step change in the level of service to victims which will be required of the criminal justice agencies in this country. It is important that these agencies are taking the opportunity in the years leading up to the implementation of new legislation to monitor their current practices in relation to victims of crime.
Such monitoring is a first step in identifying good practice which can be copied and built on. Monitoring can also help identify where there may be scope for improvement.
You will be pleased to hear that I do not intend to go article by article through the directive. However, I would like to highlight briefly the main areas covered, to illustrate its broad scope.
There are provisions requiring information to be made available to the victim about their case and about the criminal justice system. Information is critically important to orient the victim in what, to them, may appear to be a complex and confusing system. Updates on progress in relation to an investigation also assure the victim that efforts are being made to deal with the crime. To complement the provision of information the directive also has requirements to facilitate communication by the victim, including requirements in relation to interpretation services.
In relation to criminal proceedings before the courts, the draft directive envisages a range of measures including expenses, return of property being retained as evidence, and the right to a decision on compensation from the offender. It also sets out victim rights in the event of a decision not to prosecute. The draft directive also sets down minimum standards for any restorative justice services which may be provided, to ensure that the concerns of the victim are adequately addressed. There is no obligation in the directive to provide any particular services, but any services which are provided must meet the standards laid down.
Protection is another important element of the draft directive. There is a wide range of actions covered by the concept of protection, from the victim taking sensible precautions, to simple security advice, to community police keeping an eye out for the victim, to a range of more formal measures, leading in rare cases to the Witness Protection Programme. In recent weeks we have seen in the national media how this programme can apply in practice.
The draft directive also covers training, cooperation between agencies and the gathering of data and statistics, as one might expect. These issues can be spoken of quickly, but in a sense they are the bedrock on which good practice is built. Training can help ensure standards and practices are understood by operational staff. Cooperation between agencies means that what is a difficult experience for victims is not made more difficult by unnecessarily poor communication between agencies. I have referred to monitoring of services earlier.
I am sure that the criminal justice agencies are aware of the contents of the draft directive at this stage. It is essential that they are also beginning to prepare for its implementation, by reviewing and improving current practices and procedures.
EU Directive – victim support services
A further significant area covered by the directive is access to victim support services. This includes the services provided by the voluntary sector. I am pleased to say that we have a vibrant and committed voluntary sector supporting victims of crime in this country.
Funding is provided by the Commission for the Support of Victims of Crime to more than forty organisations. The Commission is an independent body acting under the aegis of my Department.
In 2011 these organisations spent €1.2m of Commission funding, assisting almost 14,000 victims with more than 33,000 meetings or other contacts. The sector worked with close to 500 volunteers and the equivalent of 24 full time staff, supported by this funding. Among the services provided are information, emotional support, helplines, court accompaniment, accompaniment to Garda stations and accompaniment to sexual assault treatment units at whatever hour of the day or night a victim needs to attend such a unit. Families of victims of homicide, victims of sexual, domestic and gender based violence, tourist victims, child victims and victims of general crimes of violence, burglary and so on are among those assisted. Other services, including refuges and counselling, are provided by the sexual, domestic and gender based violence sectors, funded mainly by the HSE.
EU Directive - vulnerable victims
I would like to spend a little time considering the very important topic of vulnerable victims.
This is a difficult concept for a number of reasons. There is a continuum in relation to the impact on a victim of a particular crime.
Let me paint a hypothetical picture at one end of this spectrum. An individual who is physically well and well resourced materially and emotionally, leaves a bag containing a newly purchased piece of clothing at a table in a café and returns a few minutes later to find that it is gone, presumably stolen. That individual can come home, recount what happened, and grumble at the inconvenience. After a nice dinner, and time spent watching television or checking their social media, the person retires to bed, sleeps well, gets up the next day and carries on as before. For this victim of crime, the crime is an event, a story to tell when crime is being discussed with friends.
Let me paint another hypothetical picture at the other end of the continuum. Take an elderly couple, one of whom has an ongoing serious medical condition. The other partner suffers from "nerves". They are raised from their bed at midnight by the guards at the door. Their only child, who is separated from her partner, and their six year old grandson, have been in a fatal collision with a so-called joy rider high on drugs. Their grand-daughter, aged eight, is in hospital in a serious, but stable condition. It is probable that for this couple, the events of that evening will never become just an event. To their dying days, the incident will mark them indelibly, to such an extent that their very identities will be defined by the experience of the crime.
Obviously, the couple are vulnerable, and the person whose shopping was stolen is not. Between the two there is a long continuum. However, it is not easy to identify on that continuum who is vulnerable based only on the type of crime experienced. Some people of a nervous disposition can be devastated by what would be regarded as a minor crime. Some people can be traumatised for a period by a burglary. Many people may find assaults on themselves or their children very difficult to deal with for a time.
On the other end of the continuum the resilience of the human being can be remarkable. A minority of people who have experienced extremely serious crimes against the person, can cope well with the aftermath of the crime and recover reasonably fully in a short time. Many others in the same situation can make good enough recoveries so that they can function reasonably well after some time.
The Commission in its original proposal for the directive, came up with an intelligent and nuanced way of dealing with the issue of vulnerability. It said that those who were vulnerable would have access to one or more of a short menu of special measures during the investigation and in court. Most of the proposed measures are already available in this jurisdiction. However, the interesting part of the proposal was the three pronged definition of vulnerable victims. The first part was based on characteristics of the individual: children and people with disabilities would be regarded as vulnerable. The second part was based on the nature of the crime: victims of sexual crime and victims of human trafficking would be assumed to be vulnerable. For other victims an individual assessment would be made.
During the debate in the European Council framework, problems were identified with the list of vulnerable categories. Where could one draw the line? What about this or that further worthy group? While consensus between member states was achieved on a compromise alternative, the whole issue has opened up again in the European Parliament. The Parliament originally proposed amendments with multiples of the four categories of vulnerable victims identified by the Commission.
Ireland will play its part in working towards a practical solution which can command consensus in relation to this topic. As I speak officials from my Department are in Brussels discussing the draft directive. I do not wish to pre-empt those discussions by adopting a hard and fast position in public. However, I would like to place a perspective on this issue before you this morning. It might provoke some discussion among you, the practitioners and experts gathered here today. I would be interested to hear about your deliberations on this point in particular.
There is no problem in and of themselves with many of the categories proposed by the Parliament. Most are worthy of consideration on their individual merits in the context of vulnerability. There is, however, in my view, a likely negative impact operationally if we adopt a long list of vulnerable groups in a binding legal text. The person in my example who had their shopping stolen might report it in person or phone their local garda station in the afternoon. The call to inform the parents in the road traffic tragedy might be received just before midnight and the couple’s first contact with the police is around midnight.
Domestic violence incidents in the home may come to police attention and Gardaí may be on site in the early hours of the morning. Trying to get all front line Gardaí to check a long list of vulnerable categories at different hours of the day or night, in police stations, in people’s homes, on the beat or at crime scenes, is not in my view the most helpful approach.
I have said that I do not want to prejudice the finding of a suitable consensus in EU negotiations by adopting a particular position. I also do not want to encroach on the Garda Commissioner’s oversight and direction of operational matters in An Garda Síochána. However, it appears to me that a practical solution might be for the Gardaí, who are the first port of call for many victims of crime, to assess the vulnerability of each victim. What I have in mind in this context is a form of triage, as performed by medics on the battle field or nurses at the admission point to Accident and Emergency.
I do not envisage a forensic inquisition of the victim, to further distress them, or to distress them more than the crime itself. Nor do I envisage a psychiatric or psychological investigation of the victim’s emotional health. This is too intrusive and could also further traumatise the victim. Speaking frankly, elaborate systems to screen every single victim in a very detailed way, would also be cumbersome, unworkable and would ultimately reduce, rather than improve the level of service to individual victims.
The conceptual problem here is that vulnerability is a subjective state, and so it may be hard to assess objectively. We must also ask why the criminal justice system is asking about vulnerability in the first place. The answer is that the directive offers a menu of possible special measures for vulnerable victims. The purpose of the assessment is to see which if any of these special measures might be helpful to certain victims because of their adverse experience.
In a sense, therefore, it might be better to talk about people with special needs, which might be accommodated in some way by the criminal justice system, using the mechanisms identified in the draft directive.
I believe that it should be possible for the police and possibly the courts to develop simple and practical systems of assessment, which would be minimally intrusive, clear and quick to use, and which could capture the majority of those who need special measures, as defined.
I have given a short history of the draft victims directive, followed by a brief overview of its contents. I have also taken some time to consider the important issue of vulnerable victims or victims who need special measures in court or in the investigation of a crime.
You have an interesting line up of speakers today, representing the EU Commission, An Garda Síochána, academia, the Irish voluntary sector and Victim Support Europe.
I also note that Mr. Ray McAndrew, chair of the Commission for the Support of Victims of Crime, is here to act as moderator of one of your sessions.
I understand that the conference is funded by the European Union, through our hosts for today’s conference, the Irish Council for Civil Liberties. The funding is a sign of the European Commission’s interest in this area. I believe the Commission does not just want to see a legislative instrument adopted, but is anxious that this instrument and any accompanying Commission measures, improve the experience of victims of crime.
The Irish Council for Civil Liberties has been campaigning in the broad area of human rights since its foundation in the mid 1970s. It is currently under the stewardship of a seven strong board with a range of relevant experience. Thanks are due to the Director of the Council, Mark Kelly, and Deirdre Duffy, Research and Policy Officer, and the support staff in the Council for organising this conference today. It only remains for me to wish you well in your deliberations. I look forward to hearing about your conclusions on the very important topic of victims of crime and the draft EU directive.