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Free legal advice for sex assault complainants, even if prosecution does not proceed
Justice minister Helen McEntee Pic: RollingNews.ie

29 Oct 2020 / justice Print

Free legal advice for sex assault complainants

Justice minister Helen McEntee is to reform the system of investigating and prosecuting sexual crimes to create a ‘victim-centred approach’.

Supporting A Victim’s Journey: A Plan to Help Victims and Vulnerable Witnesses in Sexual Violence Cases is a new publication from the Department which details over 50 individual reforms and sets out completion timelines.

No prosecution

A total of €2.3 million was secured in the recent budget for the measures. This includes providing free legal advice to sexual assault complainants, even where there is no prosecution.

The Legal Aid Board has noted that this recommendation would extend the scope of the service so that the representation remains, effectively for the entire length of the complainant’s evidence, including if they were called back to give further evidence.

This will increase the cost of the service, the board says.

The right to separate legal representation for victims under section 3 of the Criminal Law (Rape) Act 1981 (in circumstances where an application is made to question a victim about other sexual experience) should be extended to include trials for sexual assault, the new publication says. 

A new Sexual Offences Unit in the Office of the DPP is also being established and will be fully operational during 2021.

Guilty pleas

The Judicial Council’s Sentencing Guidelines and Information Committee has also been asked to draw up a guideline on discounts for guilty pleas in sex assault cases.

It will also issue sentencing guidelines, especially in those sexual offences cases where there are no judicially developed guidelines.

Judge appointments to the criminal courts will also hinge on the potential impact on court accommodation and facilities for those “participating in or attending sexual offence trials”, the publication says.

The Law Society’s ‘Trauma Awareness Skill Training for Lawyers working with Children and Young People’ could be adapted to provide suitable training for criminal practitioners,at the annual Criminal Law Conference in March 2021, the publication continues.

Training

The legal professions will have to provide a list of members who have “satisfactorily completed the prescribed training” in relation to right of a defendant to engage a solicitor of his or her choice. 

The national rollout of Garda Divisional Protective Service Units was a recommendation of the O’Malley Review, published in August.

That review also proposed amendments to sexual offences legislation, on anonymity, public attendance and media reporting of sexual violence.

Scoping work on these changes will begin in January 2021 with a view to bringing draft heads of legislation to Government before the end of next year.

The O’Malley report also made recommendations on legislation for preliminary trial hearings, and draft legislation will be published before the end of this year.

Disclosure

Although many of the aspects of preliminary hearings identified can be implemented without legislation – in particular the case-management aspects around disclosure, and readiness to proceed, primary legislation will be necessary to provide for substantial elements, such as the admissibility of evidence.

The legislation will deal with defence applications to question a complainant about his or her sexual experience being notified to the court at the preliminary hearing.

Where the defence intends to question a complainant about other sexual experience, it will be necessary to notify the judge conducting the preliminary trial.

The Legal Aid Board will then be immediately informed and will ensure that the complainant is represented by counsel of the same seniority as the other parties.

The Legal Aid Board will ensure that any issues relating to an intermediary, and any other special measures required, will be addressed at a preliminary trial hearing.

Intermediaries

The O’Malley Report recommends that a cohort of appropriately-qualified intermediaries should be recruited and registered and suggests a joint register of intermediaries with authorities in the North.

The new publication says that a scheme of intermediaries is both an operational and a legal matter and liaison between the courts and the relevant party and their legal representatives will help deliver this objective.

Complainants will have the right to object to the disclosure of counselling records. The disclosure of medical records will also be subject to a future review of the law.

The planned legislation will place an obligation on both prosecution and defence, to disclose anything that may prevent the trial from commencing on the scheduled date, at the preliminary trial stage.

Appropriate fees

The DPP will engage with the Department of Public Expenditure and Reform to determine appropriate fees to be paid to lawyers in private practice representing either the prosecution or the defence for their work on preliminary trial hearings.

Those representing either the prosecution or the defence should be “duly remunerated for their work in preparing for and attending preliminary trial hearings,” the publication says.

The appropriate fees to “capture the full spectrum of pre-trial hearings provided for in the relevant legislation” is to be determined by relevant stakeholders.

Consideration will be given to the integration of any changes to the Criminal Legal Aid (CLA) scheme for pre-trial hearings into the overall CLA scheme.

Provision will be made to allow the same barrister to represent the victim in a questioning application and during the actual questioning itself, in trials for sexual offences.

Dignity

The minister said that she wanted complainants to have confidence that the criminal justice system will treat them with dignity and empathy.

She added that tackling sexual, domestic and gender-based violence is a key priority.

Training programmes will be implemented to include:

  • A commitment from the Judicial Council that training for judges on how vulnerable victims will be treated during sexual offence trials will be completed in 2021,
  • The Bar Council will develop a course within its continuing professional development framework to train barristers on how to treat victims, including how they should be questioned, and to gain a better understanding of the victim’s experience,
  • The Law Society will examine if its current training structures can be adapted to provide updated training. Its annual Criminal Law Conference in March 2021 is envisaged to provide such training for criminal practitioners,
  • The Department of Justice will ensure that all personnel in State agencies who are likely to have to deal with victims of sexual crime should have appropriate training. Specific proposals will be developed as part of the Third National Strategy on Domestic, Sexual and Gender-Based Violence, which will be in place by the end of 2021,
  • All serving members of An Garda Síochána, engaged in frontline policing, will receive specialist training for engaging with victims of sexual crime and vulnerable witnesses,
  • Nationwide rollout of the Divisional Protective Services Units (DPSUs) has been completed.

The national rollout of the DPSUs was a recommendation of the O’Malley Review, published in August.

Consent education

The minister is also planning education campaigns on the meaning of ‘consent’ in sexual relationships, for students at primary, secondary and third level.

There will also be a push for enhanced awareness of victims’ rights provided for in the 2017 Victims of Crime Act.

There will be increased grant funding for court accompaniment and other supports.

The full implementation plan may be read online.

Gazette Desk
Gazette.ie is the daily legal news site of the Law Society of Ireland