The Criminal Justice (Victims of Crime) Act 2017 and the right balance between the rights of the victim and the rights of the accused
The purpose of this essay is to examine first the Criminal Justice (Victims of Crime) Act 2017 that was enacted on 5 November 2017. It represents an important development in victims’ rights in Ireland. Secondly, I will consider the protections offered for vulnerable witnesses, especially children and person suffering from a mental impairment. The question that arises is in relation the compatibility of the Act with the accused’s rights. For this reason, at the end, I will critically discuss whether this Act maintains the right balance between the competing rights of victims and the accused.
The Criminal Justice (Victims of Crime) Act 2017
Victims’ Rights Directive
The Criminal Justice (Victims of Crime) Act 2017 is the result of the implementation of the Victims’ Rights Directive which establishes minimum standards on the rights, support and protection of victims of crime. The Directive points out a series of rights of victims of crime and their family members that EU Member States must ensure in practice:
Rights of victims’ family members: in case the victims are dead, their family members will have the same rights as direct victims, including the right to information, support and compensation. In case of surviving victims, their family members will also have the right to support and protection.
Right to understand and to be understood: all communication with victims must be given in a simple and accessible language, considering the age, language or any disability of every victim.
Right to information: The national authorities must inform victims about their rights, their case and services and assistance available to them.
Right to support: Member States must ensure a system of support services for every different types of victims. Support must be free of charge and confidential. These services must be available also to victims who do not officially report the crime.
Right to participate in criminal proceedings: Victims will have the right to be heard and be informed about the different steps of the proceedings. Moreover, if they do not agree with the decision not to prosecute, they will have the possibility to challenge the decision.
Rights to protection: Victims must be protected from the offender. They will receive an individual assessment to see whether they risk suffering further harm that may arise during the proceedings. If so, special measures must be put in place to protect them during the proceedings and against any possible threat from the offender.
Victims’ protection under the Criminal Justice (Victims of Crime) Act 2017
The Criminal Justice (Victims of Crime) Act 2017 defines victim as “a natural person who has suffered harm, including physical, mental or emotional harm or economic loss, which was directly caused by an offence”.
The objective of the Act is to strengthen the rights of victims of crime and their families and to give victims of crime full recognition in the criminal justice system. These rights apply not only during the trial but also beforehand. Victims must be protected during interviews, medical examinations and investigations so they won’t be put off reporting their crimes. This is a sensitive point if we think about specific crimes such as rape or crimes that involve children.
a) Right to information
One of the main developments in this new legislation is the higher level of information guaranteed to victims. The Gardaí must give certain information to victims of criminal offences. Firstly, the victim should be informed about the procedures for making a complaint alleging an offence and the support services for victims of crime. Secondly, s/he should be provided with information regarding the role of the victim in the criminal justice process and the available protection measures. Finally, s/he is entitled to legal aid and to translation assistance. In addition, victims have the right to ask about important developments in the investigations or information about court proceedings.
Other significant right included in the Act is the one which permits the victims to be informed about any decision not to prosecute the offence committed against them and the introduction of a process for formally reviewing that decision.
b) Victim impact statement
A victim impact statement is a written or oral statement presented to the court at the sentencing of the defendant and must be considered when determining the sentence to be imposed. It set out how the victim has been affected by the offence including physically, emotionally, financially or in any other way but shall not include any prejudicial comment on the offender or comment on the appropriate sentence be imposed on the offender.
The Criminal Justice (Victims of Crime) Act 2017 extends the right to make a victim impact statement to all victims who have suffered harm directly caused by an offence.
a. Assessment of victim
Some victims, considering their age or the particularly frightening, distressing or personal nature of the offence may be especially vulnerable.
The Criminal Justice (Victims of Crime) Act 2017 provides the victims with the right to an individual assessment of their protection needs in order to apply special measures to safeguard them from further victimisation and intimidation where necessary.
Special measures during investigations may include interviews being conducted by a specially trained person.
Special measures in court proceedings may include making an application to enable a victim give evidence via live television link, through an intermediary, from behind a screen or other similar device.
b. Children and person suffering from mental impairment
Vulnerable witnesses must be assisted in achieving their best evidence with the least amount of stress while ensuring that the rights of the accused are not infringed in any way.
The most important issue that arise with witnesses who are children regards the capacity of a child to understand “both the nature and consequences of an oath”.
In The People (DPP) v PP, Sheehan J. held that a failure to make a formal inquiry about the capacity of the person under 14 to give an intelligible account of relevant proceedings before placing the evidence in front of the jury does not make a trial unsatisfactory.
While dealing with persons suffering from a mental impairment, in The People (DPP) v Gillane, even though a witness believed that the staff of the Mater Hospital had inserted a microchip into his head, he could give identification evidence for the prosecution. It was held that the witness “had very strange ideas about what was done to him when he had an operation on his head some twenty years before in the Mater Hospital, but this does not mean that he was incapable of giving evidence”.
Now the Criminal Evidence Act 1992 provides that in any criminal proceedings the evidence of a person with a “mental handicap” or of a person under 14 years of age may be received otherwise than on oath or affirmation if the court is satisfied that s/he can give an intelligible account of events which are relevant to the proceedings. It also abolishes the requirement of corroboration of unsworn evidence of a child; it shall be for the trial judge to decide, in his discretion, having regard to all the evidence given, whether the jury should be given the warning about convicting the accused on the uncorroborated evidence of a child.
The Children Act 2001 also provides that in the case of victims of specified sexual or violent offences who are under the age of 18, there is a presumption in favour of giving evidence via television link. The Criminal Evidence Act 1992 contains the same provision for persons suffering from a “mental handicap”. In addition, while evidence is being given through a live television link, neither the judge, nor the barrister or solicitor, shall wear a wig or gown.
In cases regarding a sexual offence or an offence involving violence, witnesses who are using the live television link and are under 18 years of age or are persons with a “mental handicap” may give evidence in court through an intermediary.
The right balance between the rights of victims and rights of the accused
i. Right to a fair trial
While considering the rights of victims, it’s important to observe whether the accused’s right to a fair trial would be prejudiced. The right to fair procedures is protected under the Constitution.
In D O’D v DPP and Judge Patricia Ryan, it was contested the use of live television links. The applicant was charged with having sexual relations with two mentally impaired persons. He contended that evidence given by video link by the two complainants would create a real risk that he would not get a fair trial because evidence given by that way could convey to the jury that they were persons with mental impairment, a matter which he disputed as part of his defence. The trial judge established that the evidence should be given by video link. On appeal to the High Court, O’Neill J. overturned this decision. He stated:
“In my judgment, evidence by video link in the circumstances of this case does carry with it a real risk of unfairness to the accused which probably cannot be remedied by directions from the trial judge or statements from the prosecution. The discretion which the Court has to order evidence to be given by video link or to direct otherwise raises the difficult question as to how the Court is to achieve a correct balance between the accused’s right to a fair trial and the prosecution’s right to have evidence given by video link. What is required is a test that achieves the correct balance between these two competing rights …. The fact that the giving of evidence by viva voce would be very unpleasant for the witness or coming to court to give evidence very inconvenient, would not be relevant factors”.
The Criminal Justice (Victims of Crime) Act 2017 provides some safeguards in the case of evidence given from behind a screen or other similar device. The witness must be capable of seeing and hearing and being seen and heard by:
a) the judge and jury (if any),
b) legal representatives acting in the proceedings,
c) any interpreter, intermediary appointed under section 14 or any other person appointed to assist the witness and shall be capable of being heard by the accused.
Furthermore, in Donnelly v Ireland, Hamilton C.J. held:
“The right of an accused to a fair trial did not include in all circumstances the right to physical confrontation with his accuser and consequently there was no such constitutional right”.
Considering the above safeguards and the decision in Donnelly v Ireland, it is likely that the use of live television links is compatible with the accused’s right to a fair trial.
ii. Right of access to a solicitor
The Criminal Justice (Victims of Crime) Act 2017 provides that victims may be accompanied by a person or persons of his or her choice, including his or her legal representative, during an interview with the Garda Síochána.
The right of access to a solicitor for the accused while in Garda custody is provided for under the Criminal Justice Act 1984, which requires that a member in charge informs the accused “without delay” of his entitlement to consult with a solicitor.
The admissibility of confessions obtained as a result of an alleged inducement and whether a solicitor is entitled to be present during the course of a pre-trial interview were questioned in the case of DPP v Doyle, that appeared before the Supreme Court.
The right of access was developed in DPP v Gormley and White. It was recognised that the right of access was contained into Art.38(1) of the Constitution and that the accused’s right to consult with a solicitor should take place prior to the interrogation. However, the majority of the Supreme Court in Doyle stated that the confession was made voluntarily and it was admissible. In addition, Charleton J. stated:
“There is no decision of the ECtHR stating that there must be a solicitor in the room during the time when a person is being questioned by police in relation to a crime”.
In the end the appeal was dismiss. Nevertheless, in an important decision of the ECtHR was held that:
“In order for the right to a fair trial to remain practical and effective, article 6 (1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right”.
The decision in Doyle sets a dangerous precedent for the admission of confessions obtained by inducement and it has inactivated to some extent the developments made to strengthen the right of access to a solicitor.
The Criminal Justice (Victims of Crime) Act 2017 is an appropriate response to the needs and rights of victims of crime. The Constitution states that all citizens are equal before the law, but equality also means dealing with different situations in a different way. There will always be victims whose needs will be higher because of their vulnerability and the Act clearly points them out. It doesn’t affect the rights of the accused if some guidelines are kept in mind. Firstly, one of the fundamental principles of criminal law is the presumption of innocence of the accused until the state proves him guilty beyond all reasonable doubt. Secondly, while dealing with the rights of the accused, to ensure that these are not violated, prosecutors must be certain that when asking for measures, they satisfy the court that the accused’s rights will not be interfered with.