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Dr Shane Kilcommins. Victims as owners of the conflict Victims as investigators and decision-makers What could they elect to do? And if it went to trial?

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Presentation on theme: "Dr Shane Kilcommins. Victims as owners of the conflict Victims as investigators and decision-makers What could they elect to do? And if it went to trial?"— Presentation transcript:

1 Dr Shane Kilcommins

2 Victims as owners of the conflict Victims as investigators and decision-makers What could they elect to do? And if it went to trial? Conflicts were therefore the property of the parties directly affected. The rise of institutionalised justice Investigative and prosecutorial functions An equality of arms framework Justice became institutionalised, rule-bound (State/accused dyad), and pursued in the public interest The individual experiences of the victim was increasingly viewed as invalid knowledge

3 Structural/institutional EU The Victims Charter The Commission for the Support of Victims of Crime/Victims of Crime Unit The DPP The Courts Service Victims Organisations Satisfaction ratings

4 Criminal procedure/evidence Intermediaries Live television links Mandatory corroboration warning The removal of wigs and gowns Restrictions on prior sexual history Separate legal representation Victim impact statements Compensation to victims The spouse of an accused in criminal proceedings The doctrine of recent complaint The absence of resistance by a rape victim Competence to testify at trial A relaxation in identification requirements

5 In the last three decades the status of the crime victim has gradually altered from being perceived as a ‘non-entity’ or ‘hidden casualty’ to a stakeholder whose interests and opinions matter. Crime victims are being anchored once again as key constituents in the criminal justice landscape and criminal justice agencies are having to rework their relationships with them.

6 A lack of knowledge among criminal justice professionals (McGrath 2009) The provision of information to victims (Savi 2002, ICCL 2008) Under reporting (O’Connell 1994, 2001; Savi 2002, CSO) Intimidation and harassment by the process (Kelleher et al 2009) Attrition rates (Hanly 2009, O’Mahony 2009) The lack of private areas in court (Bacik et al 1998) Delays in the system (Hanly 2009) The lack of opportunity to fully participate (ICCL, Kate Mulkerrins 2003)

7 Prior to Reporting General public/professional community stakeholders have insufficient awareness of Crime Victims Helpline Initial contact with the Gardai Victims are not receiving enough basic information from the Gardai after reporting a crime (Framework Decision, Committee of Ministers Rec (2006) 8) The Investigation of the Crime and Support for the Victim Dissatisfaction with the information provided by the Gardai during the investigation of the crime Rec (2006)(8) Reg 6.5 states that ‘States should ensure in an appropriate way that victims are kept informed and understand the outcome of their complaint [and] relevant stages in the progress of criminal proceedings’.

8 ‘I was almost a nuisance to them and I wanted to be a nuisance...The more he wasn’t ringing me back the angrier I was getting...I think definitely that the victim should be treated with more respect. We really felt that we got absolutely no respect from them whatsoever...’ (Harriet) ‘I used to ring the Garda station to find out what was going on and he was never there and I’d leave messages and leave messages and he’d never answer them’ (Tracy) ‘I had to chase them for information...They were very haphazard in giving me information (Brendan)

9 The DPP The failure to give reasons for the decision not to prosecute Support Organisations Multiplicity of organisations, giving rise to confusion for victims and community stakeholders Dublin appears to be underrepresented in relation to the prevalence of crime Some victims felt that support organisations did not adequately cater for male victims’ needs ‘They ‘re more into women...very, very little for men...because it’s a woman’s thing. If there was someone in the group who could talk directly to men it would actually open a door’. (Paul, co-victim of homicide)

10 The Court Process The communication of information between the system and victims regarding the timing of hearings and adjournments The issue of delay The lack of a separate waiting venue (Framework Decision requires a ‘suitable level of protection’ A very low level of take-up of reimbursement of expenses (Framework Decision outlines a right to have costs refunded when they are witnesses in civil and criminal proceedings). Only 3 of the 150 respondents who went to court were offered advice in this regard.

11 Sentencing/post sentencing Clear and standardised guidance on what can be contained in the victim impact statement The discretionary nature of such statements in homicide cases (now altered) Information on offender release dates, and parole – a lack of knowledge among victims

12 Section 5 of the Criminal Law (Sexual Offences) Act 1993 is one example of this, and states that: A person who—(a) has or attempts to have sexual intercourse, or (b) commits or attempts to commit an act of buggery, with a person who is mentally impaired (other than a person to whom he is married or to whom he believes with reasonable cause he is married) shall be guilty of an offence. In The People (DPP) v XY, the accused was charged with section 4 of the Criminal Law (Rape) (Amendment) Act 1990 after it was alleged that he forced a woman with an intellectual disability into performing the act of oral sex with him. Such a sexual act did not come within the scope of section 5 of the 1993 Act. On this issue, White J in the case noted that “[i]t seems to me that the Oireachtas when they introduced the 1993 Act did not fully appreciate the range of offences needed to give protection to the vulnerable” (as quoted in LRC 2011: 191). Given the lack of evidence of an assault or hostile act on the part of the accused, the trial judge directed the jury to acquit the defendant, stating that that the judiciary could not fill a ‘lacuna in the law’ (ibid: 192). The LRC recommends that any “replacement of section 5 of the Criminal Law (Sexual Offences) Act 1993 should cover all forms of sexual acts including sexual offences which are non-penetrative and sexual acts which exploit a person‘s vulnerability” (2011 para 5.122).

13 There are also notable absences of the protection of people with disabilities in other relevant pieces of legislation. For example, under the Prohibition to Incitement to Hatred Act 1989, it is an offence to incite hatred against a group of persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origins, or membership of the travelling community or sexual orientation. Significantly no mention is made of disability as a criterion in this piece of legislation.

14 In the recent Laura Kelly case, the complainant, who has Down Syndrome, alleged that she was sexually assaulted at a 21 st birthday party. The family claimed that shortly after Ms Kelly was put to bed, a family member entered the bedroom and saw a man in bed with her. It was alleged that Ms Kelly had most of her clothes removed and that the man was naked from the waist down. However, at trial, Ms Kelly, who had ‘a mental age of four’, was deemed incompetent to testify and the case was dismissed. Ms Kelly’s mother stated: She [Laura] was brought into this room in the Central Criminal Court and asked questions about numbers and colours and days of the week which had no relevance in Laura’s mind. She knew that she had to go into a courtroom and tell a story so the bad man would be taken away. "It was ridiculous. There is no one trained in Ireland to deal with someone similar to Laura, from the Gardaí up to the top judge in Ireland and the barristers and solicitors” (McEnroe, 30 March, 2010).

15 In England and Wales, section 146 of the Criminal Justice Act 2003 imposes a duty on courts to increase the sentence for any offences aggravated by hostility based on the victim’s disability or presumed disability Cross examinination?

16 Significantly, there is only one reference to victims with disabilities in the Charter. In the Garda section, a commitment is made as follows: “if you have any form of disability we will take your special needs or requirements into account” (Department of Justice and Law Reform, 2010: 17). In contrast, the Code of Practice for Victims of Crime in England and Wales, which has lawful authority, specifically provides an enhanced service for vulnerable victims. A vulnerable victim includes a “person suffering from a mental disorder or otherwise has a significant impairment of intelligence and social functioning, or has a physical disability or is suffering from a physical disorder” (Office for Criminal Justice Reform, 2005: 4).

17 The New Directive The European Commission has identified as a strategic priority the protection of victims of crimes and the establishment of minimum standards. In May 2011, it put forward a proposal for a Directive establishing minimum standards on the rights, support and protection of victims of crime (European Commission, 2011). It includes: (i) provisions on information rights for victims, (ii) right of access to victim support services, (iii) right of victims to have their complaints acknowledged, iv) the right of victims to be heard, (v) the rights of victims in the event of a decision not to prosecute, (vi) the right to reimbursement of expenses, (vii) the identification of vulnerable victims (children and persons with disabilities are identified as at a particular risk of harm, and therefore are in need of special measures), (viii) right to avoidance of contact between victim and offender, (ix) the protection of vulnerable victims during criminal proceedings, and (x) the training of practitioners who have contact with victims. The draft Directive has been endorsed by the Irish Government.

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