Criminal Procedure Bill 2021

First Stage: 19 Apr 2021
Oireachtas Link: https://www.oireachtas.ie/en/bills/bill/2021/8/

Bill entitled an Act to provide for preliminary trial hearings in respect of the trial of certain criminal offences; to provide for the provision of certain information to juries; to amend the Criminal Procedure Act 1967, the Criminal Justice Act 1984 and the Criminal Procedure Act 2010; and to provide for related matters.

Ivana's Contributions

Committee Stage: 26/04/2021

SECTION 1

Question proposed: "That section 1 stand part of the Bill."

I welcome the Minister of State to the House. Given that we are speaking on section 1, and that I understand the timeframe within which the Bill is to be brought into effect, which is hugely important, I want to reiterate my support and that of my party for the principle of preliminary trial hearings. This mechanism will be very important in the interests justice and in the interests of victims. During my time in practice, I saw many trials in which the trial before the jury was delayed for hours some days, but often for consecutive days at a time, while legal argument went on in the absence of the jury. In many of those cases, the issues being discussed in the absence of the jury were issues that could have been dealt with by way of a preliminary trial hearing. That is the crucial principle of this Bill.

Earlier today, I raised the case that was referred to in The Irish Times on Saturday. The article, by Sarah-Jane Murphy, was about a case which she described as Zoe's case concerning a child who had made an allegation of sexual abuse. What was particularly harrowing to read was the experience of the family of the victim going through that experience and the lack of regard to the rights and interest of the child.

A number of practical issues around delay, lack of communication and physical facilities for the hearing of trials were expressed in that article. It is timely that we are debating this Bill. The concept of a preliminary trial hearing is to try to resolve some of the issues that would otherwise delay the conduct of a trial once up and running and that is very much in the interests of justice and in the interest of victims.

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Senator Barry Ward:

I move amendment No. 3:

In page 8, line 31, after “matters” to insert “inter alia”.

The two amendments are linked in terms of the amending of section 2(7). This section sets down what the trial court may assess at a preliminary trial hearing. I have a small concern that it is unduly fettering the discretion of a judge. Amendment No. 3 inserts the words "inter alia" to show that the list provided for in section 2(7) is not exhaustive and to allow the judge to consider other factors he or she thinks might be appropriate.

I have taken a belt-and-braces view of matters in adding a paragraph to state that a judge in such a case might consider such other matters as he or she deems appropriate. I am saying that there is a whole range of issues that could be considered at a preliminary trial hearing. It does not seem to make sense in section 6(7) to reduce that to a definitive and exhaustive list of measures. We should, once again, be trusting in the Judiciary to identify what issues should and can be decided at a preliminary trial hearing and that is why I am suggesting this amendment to subsection (7).

Senator Ivana Bacik:

I did not agree with Senator Ward's previous amendment so I am glad he withdrew it. I do, however, think there is some merit in these two amendments, particularly as section 6(4) refers to the interests of the victim as one of the criteria that a trial court shall look at in determining whether a preliminary trial hearing should be held. It is interesting that particular consideration is not included in the range of issues set out in subsection (7) for the trial court to consider at a preliminary trial hearing. It seems to me there is some merit in this suggestion. I will, obviously, be interested to hear what the Minister of State has to say.

It also strikes me, on a more general note, that Senator Ward has proposed a whole array of amendments to this Bill through which we will be going, although I know we are due to suspend at 4 o'clock. The Senator is a Government Senator and I wonder whether his Government colleagues will vote with him, should he choose to press any of his amendments, if the amendment is opposed by the Minister of State. I ask that rhetorically because some of us in the Opposition may seek to back some of those amendments and not to back others. It is, clearly, an unusual position that the only amendments to a Government Bill are being proposed by a Government Senator.

I am delighted to hear the response from Senator Ward. I should stress it is a great idea for Senators from Government parties — I apologise as I should have used that more accurate description — to table amendments. It is very good and emphasises the strength of the Seanad as a legislature, and it emphasises the role each of us plays as a legislator. I speak as someone whose party was in government and who was, to use shorthand, a "Government Senator", that is, a Senator from a Government party. Indeed, I was Deputy Leader of the House at one time. Tabling amendments as a Senator from a Government party is very positive. Seeing it is very welcome but it is unusual. Colleagues will agree that it is not usual, in considering a Bill, for all the amendments to have been tabled by a Senator in a Government party. That was my comment on the matter. I am glad to hear Senator Ward's response to the effect that he will wait to hear the Minister of State's response on each amendment, as he should, before making a decision one way or the other. That is very helpful for us in opposition to know. Those of us from Opposition parties or no party will also be making decisions on individual amendments, and I do not expect that the Opposition will be speaking with one voice on this either. Clearly, Senator Ó Donnghaile has a particular view. It is interesting to hear the experience from the North on the merits of this amendment and the sorts of matters that should be considered by a trial court during a preliminary trial hearing.

This is an important Bill. It will make some significant changes to criminal procedures so it is very welcome that we are going to spend a bit of time debating it. I am glad. Again, it is perhaps a little unfortunate that we did not separate Committee and Report Stages but I believe I am correct that although the Bill is down for Committee and Remaining Stages, our consideration is only adjourning at 4 p.m. rather than concluding. Therefore, we can continue on another date.

Second Stage: 19/04/2021

I welcome the Minister back to the House and apologise for being late to the session. I was actually speaking to Alicia O'Sullivan and Jennifer O'Connell about the issue I raised in the House earlier today about Coco's Law. I wish first to speak on Second Stage of the Criminal Procedure Bill before us but also, briefly, if I may, to refer again to some comments on Coco's Law and other relevant legal reforms.

First, on behalf of the Labour Party, I very much welcome the Criminal Procedure Bill and the provision it makes, indeed its principal purpose, to legislate for preliminary trial hearings. These have been recommended over many years by many different reports and reviews of the criminal justice system. As long ago as 1998, in an EU-funded study I conducted with colleagues in Trinity College Dublin on the legal process and victims of rape, we recommended that pre-trial hearings be brought in to ensure that issues with the conduct of the trial would be dealt with in a way that would least impact the victims and indeed the jurors. It is very welcome then to see that that is what is proposed in this legislation. It is welcome also to see in section 6 that the interests of the victims as well as jurors are recognised. I note also that this will make trial processes more efficient.

My colleague, Deputy Howlin, in the other House, also welcoming this Bill, referred to an important study into judges and juries in Ireland conducted last year by Mark Coen, Niamh Howlin, Colette Barry and John Lynch for the UCD school of law. It was the first empirical study in which judges were interviewed. On the issue of pre-trial hearings, which they also recommended, the authors noted the frustrations judges expressed about lack of progress on the introduction of pre-trial hearings, one judge saying they believed it was very disrespectful of a jury to be sworn in and then sent away for long periods while issues were resolved in the absence of a jury, as is currently the case. I recall several trials when I was in practice in which the juries were sworn in and then the voir dires were held and legal argument took place in the absence of the jury, often for days at a time. The juries would then be left in a state of suspension. Clearly, that is not ideal for jurors or victims, who are also often left wondering what is going on. I therefore very much welcome the provision for pre-trial hearings in this legislation.

I also wish again to commend the Minister for her work with Deputy Howlin on Coco's Law. I ask again, however, that we look again, in the light of the experience of a young UCC law student, Alicia O'Sullivan, as recounted at the weekend, at how gardaí who take complaints, particularly complaints relating to sexual abuse, including image-based sexual abuse, are trained to respond in an empathetic manner and then to refer to the divisional protective services unit. I pay tribute to Chief Superintendent Declan Daly who has overseen the important roll-out of specialist units within An Garda Síochána across the country to take statements where gender-based violence or sexual crimes are reported. I think what is lacking still, however, is sufficient training of gardaí on the front line in Garda stations who take these complaints in the first place. They should be able to refer them swiftly onwards to gardaí who are specialised in taking statements. This will facilitate, I think, more efficient prosecution and investigation of such offences.

I also wish to raise with the Minister a related issue regarding criminal justice reform raised earlier on "Morning Ireland" by two very brave young women, Una Ring and Eve McDowell, who, like Alicia O'Sullivan, have gone public about their experience, in their case experience of very serious and life-threatening stalking.

Their concern is that our current legislation does not adequately deal with stalking of this sort of violent nature. They suggested that section 10 of the Non-Fatal Offences Against the Person Act, which provides for the offence of harassment, does not adequately deal with the sort of physical violence that they experienced in stalking, and it appears more reflective perhaps of persistent communication through non-physical means. While we did increase the penalty to ten years in section 10 of Coco's Law for the offence of harassment, I wonder if it is time for us to look at creating an offence of aggravated harassment that would more directly encompass this sort of stalking, where people are followed at their workplace or to their home, or their property is broken into, and where there is a physical threatening presence that causes them to fear for their lives, as recounted by the two women who spoke.

Perhaps we need to look more generally at how our criminal laws reflect the experience of victims. This Criminal Procedure Bill goes a substantial way towards recognising the needs of victims and trying to make the trial processes more efficient, but we also need to look at our language more generally. Why do we not have an offence known as stalking? Why do we not have an offence of domestic violence? Why do we use language that does not necessarily reflect the experience of victims by talking about harassment, which does not seem to encompass the more serious type of behaviour? We need to name these experiences. Back in 2018, when we passed the Domestic Violence Act, pioneered so ably by the Minister's predecessor, the former Minister, Frances Fitzgerald, through our work in the Seanad and the Dáil we created a new offence of coercive control. That language more accurately reflects the experience of those who go through what we now know to be coercive control. Similarly, while I am very glad we have a Domestic Violence Act, we still do not have an offence of domestic violence, just as we do not have an offence called child sexual abuse. I have spoken before about the myriad of different sexual offences and the piecemeal nature of reforming legislation brought through the House. I should say I acted for the State years ago in cases defending some aspects of those pieces of legislation. It is a real source of frustration to anyone involved in supporting victims of sexual crime or gender-based violence that the legislation and the law does not seem to quite match the experience of victims. It is about looking at our language. It is a little bit like our outdated criminal law still talking about a defence of insanity, when insanity is now seen as a deeply problematic and outdated expression in mental health and psychiatry practice. It is about looking at our language and about ensuring that the offences we create are reflective of the experience of victims. I know the Minister is very sympathetic to these views. I wonder, then, whether we should be looking at that offence of harassment and how we can align it more with the experiences of those who have suffered the sort of very severe, physically threatening stalking behaviours that have been recounted.

Like others on today's Order of Business, I want to finish by saying again that gender-based violence is very much in all of our minds today, with the news of the tragic killing at the weekend of Jennifer Poole. I want to extend my own sympathy and the sympathies of my Labour Party colleagues to her family and friends and all who knew her.

I welcome the Bill and welcome the way in which it is framed so as to create a more responsive criminal justice and trial system. However, there are other reforms that we also need to look at.

...

[Response from Min. McEntee]

On the specific point Senator Bacik made about Coco's Law and training, part of supporting a victim's journey, which is the implementation of the O'Malley recommendations, is a clear focus on training not just for members of An Garda Síochána but for the legal profession, the Judiciary and any person who comes into contact with a vulnerable person. Training has been conducted and rolled out to all of An Garda Síochána in the divisional service protective units. Work is currently under way with Detective Chief Superintendent Declan Daly and others to ensure training is rolled out to all members of An Garda Síochána. I expect that will be part of the overall training of this year.

As was said, it is not just about introducing and implementing legislation but it is about making sure the people who are actually enforcing the legislation understand it and know it is there, and that those who need to benefit from it can do so.