Maria McDonald BL is a barrister and founding member of the Victim’s Rights Alliance.
On the 16th November an EU Victims Directive came into force throughout the EU. Approx. 75 million people are victim of crime in the EU each year. The Victims’ Directive establishes minimum standards on the rights to information, support and protection for all victims of crime. However, to realise its full potential the Victims’ Directive requires significant legislative support in Ireland.
Since Monday, the Victims Directive became law in Ireland and victims are entitled to the rights set out thereunder. These rights can be enforced by victims despite the fact that victims legislation has not be passed in Ireland nor is it likely to be passed until the New Year.
The Scheme of the Criminal Justice Victims of Crime Bill 2015 was published in July 2015. The Scheme marks the first dedicated piece of victims’ legislation in Ireland. Although a good starting point the Scheme needs to be significantly strengthened and amended if it is to comply with the Victims’ Directive.
It is important to note that the Victims’ Directive does not take away or impinge on the rights of the accused person to a fair trial. Rather the aim of the Directive pursuant to Article 1 is to ensure that all victims of crime
‘are recognised and treated in a respectful, sensitive, tailored, professional and non-discriminatory manner, in all contacts with victim support or restorative justice services or a competent authority, operating within the context of criminal proceedings. The rights set out in this Directive shall apply to victims in a non-discriminatory manner, including with respect to their residence status.’
The Preamble of the Scheme of the Bill gives effect to Article 1 of the Victims’ Directive; however, although it provides that the legislation should be implemented in a non-discriminatory manner it does not state that it should apply regardless of the residential status of the victim. In its current format victims who reside in direct provision; are undocumented migrants or tourists who are non-European nationals may not be able to fully access their rights under the Directive via the Scheme.
Recommendations have been made to Government that legislation should provide a non EU national with residence [even for a short period of time] to enable that victim to participate in the criminal justice process without risk of deportation. A stay on deportation pending the outcome of the criminal proceedings would be a means to achieve this; if the Government is not minded to provide temporary residential status. This is something which has been done to varying degrees in different jurisdictions. For example in Spain & France a residence permit will be granted to victims of domestic violence.
There appears to be concerns that the inclusion of such a provision could create could result in the flood gate being opened, i.e. that people would state that they were a victim of crime in order to benefit from temporary residence status. This is something which has been looked at by the Platform for International Cooperation on Undocumented Migrants [PICUM] and their research has indicated that there is no figures to substantiate such an argument.
Notably, statistics gathered by the Spanish government prove that undocumented women do not take advantage of the benefits recognised by the law in order to gain a residence permit. Figures from October 2011 showed that residence permits for women subject to violence constituted only 0.11% of the total residence and labour permits granted.
In France, just 55 residence permits were issued in 2014 for victims of trafficking who have lodged a complaint or testified in criminal procedure.
Who is a victim of crime?
A victim is defined in both the Directive & the Scheme of the Bill as a:-
(a) a natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence perpetrated against him or her, or
(b) a family member of a person whose death was directly caused by a criminal offence and who have suffered harm as a result of that person’s death.
Whether or not, in either case, a complaint alleging the commission of an offence has been made or any offender has been identified, apprehended, charged or convicted in relation to the offence.
However, the European Commission has suggested that the Scheme of the Bill does not fully reflect the definition of victim as provided for in the Victim’ Directive. The definition of victim in the Scheme fails to define an indirect victims of crime, such as children who witness domestic abuse. Indirect victims of crime have a right to information and support services under the Directive.
The Right to Information
Information is key if a victim is to access their rights under the Directive. Head 4 of the Scheme of the Bill provides that certain information must be provided to victims of crime by the Gardaí. This information includes:-
‘(a) procedures for making a complaint alleging an offence
(b) services which provide support for victims of crime.
(c) the role of the victim in the criminal justice process
(d) protection measures available for victims
(e) services providing legal advice and legal aid
(f) The Criminal Injuries Compensational Tribunal and the power of a court to make a compensation order under section (6) of the Criminal Justice Act 1993.
(g) entitlement to interpretation and translation or other linguistic assistance.
(h) procedures for victims who are resident outside the State.
(i) entitlement to expenses arising from participation in the criminal justice process.
(j) entitlement of a victim to inform the court of trial how he or she has been affected by the offence.
(k) the procedure to obtain information from the Irish Prison Service on the release of a prisoner.
(l) available grievance procedures.’
Article 4 makes it clear that this information must be provided ‘without unnecessary delay, from their first contact’. Head 4 of the Scheme of the Bill will need to be amended to ensure that this information is made available at first contact and without unnecessary delay.
A significant number of victims never make contact with the Gardaí. This is particularly the case in crimes relating to domestic abuse, sexual violence, hate crimes, ageist crimes & gender based violence. All victims are still entitled to their right to information under the Directive regardless if they do not make a complaint to the Gardaí. Article 4 of the Victims Directive envisages that the information outlined in Head 4 of the Scheme of the Bill should be made available by other bodies, such as the HSE. Victims who attend at hospitals or counselling would therefore be informed of their rights to information in order for them to be able to access their rights.
Upon request, victims have a right to receive certain information about their case, such as the place and time of the trial and the type of crimes the offender was charged with. Subject to a victim’s role in criminal proceedings, and upon request, they can be informed of any final judgement of the trial. Information should also be given, on request, to a victim on the state of the criminal proceedings, save where the provision of this information could damage the case.
The Directive and Scheme provides that if a decision is taken to end proceedings or not to prosecute, then, a brief summary of the reasons should be given to the victim, upon request. A victim can appeal a decision not to prosecute. Both the DPP and the Gardaí are required, upon request, to provide a brief summary of the reasons and to appeal any decision not to prosecution.
Any information provided must be clear and concise and available in simple language. The Directive clearly includes a right to translation of certain documents. This right is not currently echoed in the Scheme of the Bill. Head 19 (3) states that the Minister can make regulations for interpretation and translation. However, the Minister cannot make regulations when the right itself is not included in the legislation. This change must be made to comply with the Directive.
The Right to be Heard
Article 10 of the Directive provides the right of a victim to be heard during the criminal proceedings. This has been implemented by Head 9 of the Scheme of the Bill, which provides that in cases other than where a victim impact statement would apply, a victim can provide a written statement to the court called a Victims Personal Statement. This is a welcome inclusion in the Bill and it provides that ‘a court shall take into account the Victim Personal Statement’ ‘in determining the sentence to be imposed on a person for an offence to which this section applies’.
The Right to Victims Support Services
Article 8 of the Directive provides that victims have a right to access victims support services, including counselling and shelters, free of charge for a period before, during and after any criminal investigation. However, this right is not including in the Scheme & it is essential that this be included in any Bill published.
Budget 2016 included a welcome increase of 21% in the Victims of Crime Office funding to 1.5 million. An increase of 21% may appear significant; however, this amounts to an increase in approximately €250,000 for 50 victim support organisations. That is approx. an extra €5,000 per organisation. Further significant increases will need to be made to victim support services if they are going to be able to comply with their requirements under the Directive
The Gardaí will also be required to facilitate the referral of victims to victim support services. Head 6 (6) of the Bill outlines a three step test for referral, for example the Gardaí will only refer a victim if it:
a. the victim consents;
b. the ability of the victim (complainant) to contact a support service is limited
c. the victim ‘might benefit from contact with such a service’
A victim has a right to access to victim support services under the Directive and it should not be limited by whether a Garda believes whether a victim may or may not benefit from victim support services. Consent should be the only requirement. The wording of Head 6 (6) will need to be re-considered or it may result in legal challenge.
The Right to Protection from Intimidation & Re-Victimisation.
A survey by VRA members indicated that 72% of victims stated that they felt re-victimised by the criminal justice system. Compare this with a figure of 49% of victims surveyed who felt re-victimised by the accused.
Article 18 of the Victims’ Directive provides that measures must be put in place to ‘protect victims and their family members from secondary and repeat victimisation, from intimidation and from retaliation, including against the risk of emotional or psychological harm, and to protect the dignity of victims during questioning and when testifying’. The Directive implements a number of measures in order to protect people from repeat victimisation and intimidation. There is a right to avoid contact with the offender. Both medical examinations and interviews should only be done where strictly necessary.
Article 20 (c) of the Victims’ Directive provides that a person may be accompanied unless ‘a reasoned decision has been made to the contrary’. Head 12 of the Bill provides for a victim to be able to be accompanied in interviews by a person of his or her choice and by his or her legal representative. There may be reasons why a person should not accompany a person into any interview, for example it may prejudice the investigation. Recommendations have been put for forward to Government that if exceptional circumstances exist and a support person or legal representative has to be removed a victim should be able to choose another person to accompany him or her at the victim-police interview. The EU Justice Guidelines on the implementation of the Directive have also recommended the inclusion of such a requirement.
The Gardaí are now required to conduct an individual assessment of all victims of crime at first contact in order to ascertain whether they have special protection needs. In considering whether a victim needs extra protection measures regard will be given to the characteristics of the victim, the nature of the crime and circumstances of the crime. It is assumed that child victims need extra protection. If a victim has special protection needs need they will be entitled to special protection measures during the course of the investigation and during the court proceedings.
Head 16 of the Scheme of the Bill outlines special measures which are available to victims during the course of the trial. The Scheme does not provide for the special protection measures which is required by Article 23 (3) (b) of the Victims’ Directive, namely, that measures must be made available ‘to avoid unnecessary questioning concerning the victims private life not related to the criminal offence’.
Limiting cross-examination has been done in the past by Section 3 of the Criminal Justice (Rape) Act 1981 as amended. Section 3 restricts the questioning of victims on their prior sexual experience [prior sexual history]. This is therefore not something new. The right not to be cross-examined under the Directive is much broader than Section 3 and relates to a victims private life not related to the criminal offence. The transposition of this measure is essential in order to comply with the Directive & to prevent re-victimisation of the victim by the criminal justice are system.
EU Law takes precedence over Irish law. In addition Irish law must be interpreted in a manner which is ‘compatible’ with the European Convention of Human Rights [ECHR]. A very recent judgment of the European Court of Human Rights [ECtHR] in Y. v. Slovenia held that a victims rights were breached under Article 3 and Article 8 of the ECHR. The ECtHR made it clear that the rights of the victim must be balanced with the rights of the accused person. However, the court stated that ‘[A] person’s right to defend himself does not provide for an unlimited right to use any defence’ and ‘….the Court considers that cross-examination should not be used as a means of intimidating or humiliating witnesses’.
It is imperative that this issue must be legislated for in order to prevent victims being re-victimised by cross-examination. Consideration should be given to providing victims with legal aid when attempts are being made to cross-examine in such an instance.
The Scheme provides for testimonial aids for victims of crime such as the use of screens, video-link & the use of intermediaries. Intermediaries can be used where due to the age of the witness or due to mental health issues or a disability the question should be asked in an appropriate manner. A question asked by a barrister would in turn be re-phrased by an intermediary such that the ‘words used by the questioner …convey to the witness in a way which is appropriate to his age and mental condition the meaning of the questions being asked’. Intermediaries were first permitted under Section 14 of the Criminal Evidence Act 1992. There is no panel of trained intermediaries in Ireland and no guidelines on their use. I understand that they have only been used once in 23 years. The use of intermediaries is also provided for under this legislation. It is essential that intermediaries can be used in practices and to ensure this happens additional guidelines and measures will need to be implemented.
Grievance Procedures
From the 16th of November victims can enforce their rights in the courts, regardless of the fact that legislation has not been implemented to date. It seems unreasonable to expect victims to go to the courts to try to enforce their rights. Furthermore, there is no legal aid available to victims to do so.
Head 30 of the Scheme provides for Grievance Procedures whereby; the Gardaí, the Courts Service, the DPP and the Irish Prison Service ‘shall establish... a procedure by which any person who is dissatisfied with any act or omission’ which should have been carried under the Criminal Justice Victims of Crime 2015. This is a welcome inclusion;however, there are concerns that there is no independent body in place to monitor the implementation of the Directive or to deal with victims’ complaints. The VRA supports the creation of a Victims Ombudsman in order to deal with victims complaints and suggests that a Victims Ombudsman could form part of a pre-existing Ombudsman’s office to reduce costs.
Conclusion
The impact of the implementation of the Victims Directive into Irish law should not be under estimated. It will change the way victims are treated within the criminal justice system. It remains to be seen whether the Criminal Justice Victims of Crime Bill 2015 will be strengthened to reflect the true spirit of the Victims’ Directive.
For further information on the VRA see www.victimsrightsalliance.com