Transcript Document

The Implementation of the Victims'
Directive in Ireland
Identifying and Preventing
Secondary & Repeat Victimisation
Maria McDonald BL
[email protected]
Introduction
1. The Victims’ Directive
2. Strength in Numbers – Collaboration of victims rights groups
in Ireland
3. The Victims Voice: Identifying issues which cause the revictimisation of victims in the Irish criminal justice system
4. Implementing the Directive in practice to prevent secondary
and repeat victimisation
5. Enforcement mechanisms at a domestic level
1. The Victims’ Directive
The Victims’ Directive
The Directive of the European Parliament and of
the Council establishing minimum standards on the
rights, support and protection of victims of crime,
and replacing Council Framework Decision
2001/220/JHA [hereafter the Victims’ Directive]
came into force on the 15th of November 2012. It
must be transposed in all Member States by the
16th of November 2015.
The Victims’ Directive
The Victims’ Directive provides for minimum
rights, supports and protection for victims of
crime regardless of where the crime was
committed in the European Union. The
rights under the Directive are not
conditional upon the residential status of the
victim or the victims’ citizenship or
nationality.
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’.
2. Strength in Numbers
Collaboration of human rights and
victims rights groups in Ireland
Strength in Numbers
The VRA is an Alliance of victim support and human rights
organisations in Ireland namely, Advocates for Victims of
Homicide [AdVIC], the CARI Foundation, the Dublin Rape
Crisis Centre [DRCC], the Gay & Lesbian Equality Network
[GLEN], the Immigrant Council of Ireland, Inclusion
Ireland, the Irish Council for Civil Liberties [ICCL], the Irish
Road Victims’ Association [IRVA], the Irish Tourist
Assistance Service [ITAS], One in Four, the Rape Crisis
Network Ireland [RCNI], Safe Ireland, Support after
Homicide [SAH] and Victim Support at Court. The Alliance
was formed with one key goal: to ensure the Victims’
Rights Directive is implemented in Ireland within the
proposed time frame, with all victims of crime in mind.
www.vicitmsrightsalliance.com
Why establish the VRA?
The recital to the Victims’ Rights Directive states
that "Member States should encourage and work
closely with civil society organisations, including
recognised
and
active
non-governmental
organisations working with victims of crime, in
particular in policy making initiatives, information
and awareness-raising campaigns, research and
education programmes and in training, as well as
in monitoring and evaluating the impact of
measures to support and protect victims of crime."
The Work of the VRA
The VRA members represent victims of homicide,
domestic abuse/sexual assault/rape, road traffic
collisions, illegal immigrants, hate crimes, tourists
who are victims abroad and persons with
disabilities. The VRA’s has:
* Identified issues and problems which victims
face in obtaining information, support and
protection. These issues can result in the
secondary and repeat victimisation of a victim.
3. The Victims Voice:
Identifying issues which cause the
re-victimisation of victims in the
Irish criminal justice system
What makes a victim feel intimidated
and/or re-victimised?
Research conducted by the VRA did not look at
secondary and repeat victimisation in a vacuum.
Rather we first considered what
 information,
 support and
 protection
victims of crime in Ireland obtain during the course
of criminal proceedings. This assisted us in
identifying what causes the re-victimisation of
victims in the Irish criminal justice system.
The Victims Voice in Ireland
A. Survey of Victims by VRA members
B. The Guerin Report: Report to An Taoiseach
[Prime Minister] Enda Kenny TD on a Review of
the Action Taken By an Garda Siochana [Police]
Pertaining to Certain Allegations made by Sergeant
Maurice McCabe, 6th May 2014
Garda Inspectorate
(November 2014)
C.
Report/VRA
Report
A. VRA Survey
Questionnaires were administered by Advocates
for Victims of Homicide [AdVIC], the Dublin Rape
Crisis Centre [DRCC] and Support after Homicide
[SAH] in 2013 in order to ascertain whether
Ireland was complying with its obligations under
the Victims’ Directive in relation to the provision of
information, support and protection. In 2014, the
Irish Road Victims Associate [IRVA] administered
the same questionnaire to victims of road traffic
collisions.
VRA Survey
The aim of the questionnaire was to
ascertain the current level of rights for
victims of crime in Ireland and whether the
minimum rights provided for in the Victims’
Directive were currently being provided in
Ireland.
 Of 117 victims surveyed 63 were homicide
victims, 18 were victims of rape and/or
sexual assault and 36 were victims of road
traffic collisions
Victims’ Directive: Right to Information
Article 4 (1)
“Member States shall ensure that victims are
offered the following information, without
unnecessary delay, from their first contact
with a competent authority in order to enable
them to access the rights set out in this
Directive:
(a) the type of support they can obtain and
from whom, including, where relevant, basic
information about access to medical support,
any specialist support, including psychological
support, and alternative accommodation”
Victims’ Directive
Right to Victim Support Services
Article 8 (1) provides that:
“Member States shall ensure that victims, in accordance with their needs,
have access to confidential victim support services, free of charge, acting in
the interests of the victims before, during and for an appropriate time after
criminal proceedings. Family members shall have access to victim support
services in accordance with their needs and the degree of harm suffered as a
result of the criminal offence committed against the victim.”
Article 8 (2) provides that:
“Member States shall facilitate the referral of victims, by the competent
authority that received the complaint and by other relevant entities, to victim
support services.”
I. Information on Support Services
The 117 victims were asked whether they
were provided with information on victim
support services by the Gardaí;

64% of victims stated that they were not
informed by the Gardaí (Police) about
victim support services
I. Information on Support Services



Why are over 50% not receiving information
on victims support services?
34 out of 36 (95%) of road traffic collision victims
surveyed stated that they were not informed of
victim support services by the Gardaí (Police).
This can be explained by the fact that victims of
road traffic collisions are not treated as victims of
crime in the vast majority of cases and therefore
are not being provided with the requisite
information by the Gardaí (Police).
I. Information on Support Services
Why are over 50% not receiving information
on victims support services?



The figure is also low due to inclusion of rape/sexual
assault victims, 89% of which stated that they did not
receive information from the Gardaí about victim support
services.
This extremely high number can be explained by the fact
that only half, 50% of rape victims actually make a
formal complaint to the Gardaí (Police).
This highlights that there are issues in ensuring victims
who do not make a complaint have ‘access’ to victims
support services [see Article 8 (5) of the Directive]
II. Access to Victim Support Services
Free of Charge
Victims surveyed by VRA members were
asked if they obtained support from victim
support services and what type of services
they received. They were also asked
whether they had to pay for these services.
II. Access to Victim Support Services
Free of Charge
Of 117 victims surveyed, 63% (74) specifically
stated that they obtained counselling. Of these
numbers:
 75% [47 out of 63] of homicide victims obtained
counselling;
 100% [18 out of 18 ] of the rape and/or sexual
assault victims obtained counselling;
 25% [9 out of 36] road traffic collision victims
obtained counselling;
II. Access to Victim Support Services
Free of Charge


46% of victims who obtained counselling indicated that
they had to pay for or subsidise the counselling service.
Under the Victims’ Directive victim support services, such
as counselling must be provided free of charge for a
period before, during and after the criminal justice
process has concluded. Furthermore, victims who do not
make a formal complaint to the police must also be able
to access victim support services. Additional resources
therefore need to be provided to ensure that these
services are provided free of charge to victims of crime.
III. The Victims’ Directive
Intimidation & Re-Victimisation
Article 18
‘Without prejudice to the rights of the defence, Member States
shall ensure that measures are available 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. When necessary, such measures shall also include
procedures established under national law for the physical protection
of victims and their family members.’
Article 19 (1)
‘Member States shall establish the necessary conditions to
enable avoidance of contact between victims and their family
members, where necessary, and the offender within premises
where criminal proceedings are conducted, unless the criminal
proceedings require such contact’.
III. Protection from Intimidation and
Repeat Victimisation

Victims surveyed were asked did they ‘feel
intimidated or re-victimised by the
accused and/or the criminal justice system
and/or other.’
III. Protection from Intimidation and
Repeat Victimisation

From the 36 questionnaires obtained by the
IRVA 14% (4 out of 28 victims) of victims of
road traffic collisions indicated that they did not
feel intimated, while 25% (7 out of 28 victims)
indicated that they did feel intimidated. The
remaining 61% indicated that the question was
not relevant as they did not attend court, either
because the victims were not informed of the
court date, or their cases had not gone to trial.
III. Protection from Intimidation and
Repeat Victimisation

Victims surveyed were asked did they ‘feel
intimidated or re-victimised by the accused
and/or the criminal justice system and/or other.’

52% of victims surveyed by AdVIC, SAH and the
DRCC [81 victims] said that they felt intimidated
or re-victimised and 6% stated that they did not.
The remainder, 42%, did not answer this
question and this may be due to the fact that
the case had not gone to trial.
III. Protection from Intimidation and
Repeat Victimisation



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Victims were asked what they felt revictimised by:
49% of victims stated that they felt
intimidated/re-victimised by the accused;
72% stated that they felt re-victimised by
the criminal justice system;
Others stated that they also felt revictimised by the accused family and/or
the media.
The Voice of the Victim

During the course of the survey victims
were invited to make some comments on
their experience of the criminal justice
system. Their voice illustrates the need to
ensure the provision of information,
support and protection to victims of crime.
It also highlighted the frequency by which
victims feel re-victimised by the criminal
justice system.
Intimidation & Re-Victimisation
From a Victims perspective
'the Garda made me feel like a criminal and that
our feelings weren't taken into account. There
was more respect given to the accused family.‘
‘the law is on the side of the criminal and not the
victim ‘
'one of the accused intimidated us during the
court proceedings and was allowed to do so by
the court.’
Intimidation & Re-Victimisation
From a Victims perspective
‘the behaviour of the defence solicitor was
extremely intimidating because of their efforts to
distract by "stalking" me as the mother of a murder
victim, when I cried they accused me of trying to
influence the jury! The judge eventually told them
to stop it. It was [a] very freighting experience and
added to my distress’
‘[Felt re-victimised by] the guards coming to my
home informed me that they still had my sons leg
after he was buried the day previous. ‘
Intimidation & Re-Victimisation
From a Victims perspective
'the accused and his family sneering, making
faces, brushing past me. The Criminal Justice
System were all about the offender and we
were not considered in the court and we had
no where to complain about the defence
counsel’
‘Found dealing with Gardaí very traumatic and
worse than the original experience of rape.
Felt re-traumatised.’
Intimidation & Re-Victimisation
From a Victims perspective
‘The murderer ruled the court. We wanted to sit in
front row and were told it was for media only, [we
were told to] move so we did, murderers family sat
in those seats for [the] trial. They could have
conversations with him. We shed a silent tear, his
barrister turned around in his chair staring at us
while our barrister spoke to the Jury. Then his
barrister stood up to [the] Judge and said if the
family are getting upset can they leave court [as] it
could sway [the] jury.‘
B. The Guerin Report


The Guerin Report is an independent review of
the actions taken by the Gardaí [police] in
relation to ‘allegations of grave deficiencies in
the investigation and prosecution of crimes’,
which were made by Garda [Police] whistleblower, Sergeant Maurice McCabe;
It deals with many issues; however, it highlights
issues in relation to the provision of information,
support and protection to victims of crime which
resulted in the repeat victimisation of victims.
The Guerin Report:
Offences Committed by Jerry McGrath
The Guerin Report - Chapter 6: Offences
Committed by Jerry McGrath
1. Assault in a taxi of a women – Released
on Bail
2. Aggravated burglary, assault, abduction
of a child – committed when on Bail
3. Murder in Limerick – committed when on
Bail

The Guerin Report
a. Pulse System – The Garda Information
system – classification of crimes
b. Delay in submitting the file to the Director
of Public Prosecutions [DPP]. Failure to
inform the DPP of the child abduction
charges when seeking a direction
c. Bail in child abduction case. Information
on the seriousness of the earlier assault.
d. Breach of conditions of bail terms not
noticed as only one person on duty.
The Guerin Report
Victim 1 - issues:
1. Inexperienced garda which took
statement from victim. Garda may not have
considered a potential sexual element to the
assault.
2. No adequate consideration given to the
victims safety in relation to Bail Application?
3. Victim contacted and told not to go to
court as the case was definitely not going
ahead – Contacted later that day that the
defendant had gotten 9 months
The Guerin Report
Victim 1 - issues:
4. Victim called the superintendent to find
out why she was told not to go to court –
calls were not returned.
5. Victim Impact Statement – Not
addressed in court. Furthermore no
information given in court on the affect of
the offence on the accused.
6. Information available in the media,
which the victim was not told by the Gardaí.
C. Garda Inspectorate
Report/VRA Report
The Garda Inspectorate Report and the VRA Report
(November 2014) highlight inconsistencies in the current
provision of information, support and protection to
victims of crime in Ireland. In particular both reports
refer to the:
Failure to record crimes reported by victims ;
Failure to provide information to victims of crime ;
Victims can learn about a cases outcome and
sentence in a local newspaper ;


All of these elements can cause a victim to feel revictimised by the criminal justice system.
4. Implementing the Directive in
practice
A. The Basics – Making a Statement
The VRA is aware of instances where the
Gardaí [police] have refused to take
statements from victims who are tourists or
blind/suffer from mental disabilities.
 Need to ensure that all victims can make a
statement and that it is investigated
appropriately - regardless of the mental
and/or physical disabilities.
 Need to have training and accountability
B. The Provision of Information

The Directive requires that certain
information should be provided on first
contact with a victim [Article 4] and other
information should be made available
upon request [Article 6 & Article 11].
B. How information is going
to be provided to victims?




Timing – Appropriate time to provide information
Orally & in writing – Is handing someone a booklet with
information enough?
Getting information about your case – you have contact
details of an Garda Siochana [Police] Only the Garda
working on your case may know anything about. What
happens if the Garda is not available, sick or they go on
maternity leave?
In Ireland they have just established Garda Divisional
Victim Service Offices – 24 offices nationwide in Ireland
B. How information is going
to be provided to victims?



Pulse system – Garda Information System
outdated.
In the UK they are updating the Police
computer system. The Garda Inspectorate
Report recommended that the Pulse System
be updated in Ireland and the Gardaí are in
the process of doing this.
Issues: Data protection issues/resources?
B. How information is going
to be provided to victims?



In the UK the Ministry of Justice are rolling out a computer
system first developed by Avon and Somerset Constabulary
called ‘TrackMyCrime.
The TrackMyCrime website is a Crime Tracking System
which enables victims to access information about their
case online via a secure server. They must have an access
code/password to gain information about their case. Similar
format to online banking.
Could be expanded to enable a number of organisations i.e.
DPP, Court services, Police to update a case file.
C. Referral to Victim Support
Services
i.
Referral to Victim Support Services:
Article 8 (2) of the Directive requires that
the competent authority i.e. the Police, must
‘facilitate the referral’ of victims to victim
support services .
C. Referral to Victim Support
Services
In Ireland, data protection legislation has an ‘opt
in’ approach that requires Gardaí [Police] to seek
permission from victims prior to their referral to a
victim support service. Sometimes victims:
A.
B.
C.
Are not asked whether they want to be referred.
Victims may be asked at an inappropriate and
traumatic time, therefore the victims does not
understand what the garda is asking.
The manner by which a Garda may ask a victim may
discourage the victim from agreeing to the referral .
C. Referral to Victim Support
Services

The UK has an ‘opt out’ approach which
automatically refers victims to support
services unless the victim does not wish to
be referred. This approach ensures that all
victims are referred to victims support
services and it ensures consistency of
service.
C. Referral to Victim Support
Services


An ‘opt out’ referral scheme in Ireland
would require a change in data protection
legislation and a debate on any issues
which may arise as a result of obligations
under the Irish constitution and/or the
European Convention of Human Rights.
At a minimum training must be provided
to the Gardaí to ensure that they inform
victims about victims support services in a
timely, effective and appropriate manner.
D. Access to support services
ii. Access to support services for victims who
do not make a formal complaint
-
How can this be achieved?
E. Protection in Court
Intermediaries
Intermediaries are permitted under section 14 (1) of the
Criminal Evidence Act 1992 provides: Where—
(a) a person is accused of an offence to which this Part applies, and
(b) a person under 17 years of age is giving, or is to give, evidence
through a live television link,
the court may, on the application of the prosecution or the accused, if
satisfied that, having regard to the age or mental condition of the
witness, the interests of justice require that any questions to be put to
the witness be put through an intermediary, direct that any such
questions be so put.
(2) Questions put to a witness through an intermediary under this
section shall be either in the words used by the questioner or so as to
convey to the witness in a way which is appropriate to his age and
mental condition the meaning of the questions being asked.
E. Protection in Court
Intermediaries


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Intermediaries have never been used in
Ireland. Why?
No trained intermediaries;
DPP does not have guidelines on when
intermediaries should be used;
Prosecutions therefore cannot apply for
their use.
F. Implementing the Directive:
Training



Article 25 of the Directive requires the persons working
with victims of crime should receive training.
Article 25 (2) states:“Without prejudice to judicial independence and
differences in the organisation of the judiciary across the
Union, Member States shall request that those
responsible for the training of judges and prosecutors
involved in criminal proceedings make available both
general and specialist training to increase the awareness
of judges and prosecutors of the needs of victims”
F. Training

The Victims’ Directive should improve
victims’ overall experience of the court
system; however, a number of examples
from Ireland, illustrate the potential for revictimisation of the victim by the court
process if appropriate training is not
obtained by lawyers, prosecutors and the
judiciary, subject of course to the
independence of the legal profession and
the judiciary.
F. Training

On the 4th of June 2014 an Irish Circuit
Court Judge asked a victim of child sexual
abuse to consider engaging in restorative
justice
with
the
perpetrator,
notwithstanding that the perpetrator
rejected the guilty verdict of the court .
The victim refused. A suspended sentence
was subsequently imposed.
F. Training

Article 12 of the Victims’ Directive provides for
safeguards in the context of the use of
restorative justice services. One of the main
requirements is that ‘the restorative justice
services are used only if they are in the interest
of the victim, subject to any safety
considerations, and are based on the victim's
free and informed consent, which may be
withdrawn at any time’ and the ‘offender has
acknowledged the basic facts of the case’.
F. Training


The aforementioned case was not one where it was in
the interest of the victim to engage in restorative justice
not least because the offender had not recognised the
guilty verdict of the jury.
The prosecution should have informed the Judge of
restorative justice guidelines and of the provisions of the
Directive in relation to the inappropriate use of
restorative justice services in such an instance. This
example illustrates the need for prosecutors and the
judiciary to be trained in the provision of the Directive
and restorative justice guidelines having due regard to
the independence of the judiciary and the legal
profession.
F. Training
In September 2014 a retired High Court Judge
made a number of comments on national radio
in Ireland in relation to the use of Victims
Impact Statements (VIS) by victims.
He stated:

‘There have been cases where it would appear
that the victim is seeking to have undue
influence on a Judge or on me in the particular
circumstances and I did take exception to that’
F. Training

The retired Judge later went onto state:
‘The effect of the crime on the individual on the victim is
something that you have to bear in mind you have to take
into consideration and if you think that someone is trying it
on and is seeking to influence you adversely from the point
of view of the accused and in favour of a heavy sentence
you must just have regard to that and simply say no, sorry,
I’m not going to wear this, I’m not going to have a
situation in which someone is seeking to influence me in a
manner in which I should not be influenced’ .
F. Training
These statements which were made on national radio resulted in a
number of victims of sexual assault/rape ringing up the Dublin Rape
Crisis Centre in distress.
There are of course circumstances where information should not be
included in a VIS and a victim may be trying to influence the judgment
either directly or indirectly. However, one must remember that by its
very nature a VIS is subjective and a judge, in balancing the rights of
the accused with the rights of the victim must be objective in
considering the contents of any VIS.
The Directive provides that those parties dealing with victims of crime
should treat victims in an ‘impartial, respectful and professional
manner’ and they should be trained in ‘the needs of victims’ . Training
in the needs of victims and their right to be heard under the Directive
would assist in preventing further re-victimisation and trauma for the
victim in the criminal justice system.
5. Enforcement mechanisms at
a domestic level
Enforcing the Directive in Ireland
The success or failure of the implementation of the
Directive in Ireland will depend on training & the
implementation of a;
a. transparent,
b. clear and;
c. Easy and timely complaints procedure
which would enable victims to make a complaint
about a breach of their rights under the Directive.
It would particularly assist victims with special
needs and victims who are at risk of secondary
and repeat victimisation.
Complaints Procedure

Article 4 (1) (h) of the Victims’ Directive
provides that victims should be informed
by the Gardaí of ‘the available procedures
for making complaints where their rights
are not respected by the competent
authority operating within the context of
criminal proceedings’.
Complaints Procedure
A Victims of Crime Ombudsman?
A Victim of Crimes Ombudsman may be the appropriate mechanism to deal
with victims complaints:

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Canada: Federal Ombudsman for Victims of Crime – Sue O’Sullivan who has
spoken at the Conference
US: Office of the Victim’s Rights Ombudsman in the Department of Justice,
which deals with complaints made by victims of a federal crime in relation
to the manner by which their rights were breached by a Department of
Justice employee. In the state of South Carolina there is a Crime Victims
Ombudsman which deals with complaints made by victims relating to the
criminal justice system and victims assistance programmes.
In the UK Minister Damian Green MP is looking into establishing an
independent Victims of Crime Ombudsman
Complaints Procedure
A Victims of Crime Ombudsman?

The
foreword
to
the
Directive
recommends that “Member States should
consider developing ‘sole points of access’
or ‘one-stop shops’, that address victims'
multiple needs when involved in criminal
proceedings, including the need to receive
information,
assistance,
support,
protection and compensation”. A Victim of
Crimes Ombudsman
solution.
offers
such
a
Complaints Procedure
A Victims of Crime Ombudsman?


If established a Victim of Crimes
Ombudsman could have a very broad or
narrow mandate depending on the
manner in which it is established under
legislation.
It could be established as an independent
body or form part of the mandate of a
pre-existing Ombudsman’s office.
YOUR QUESTIONS & COMMENTS
The END