I am pleased to have an opportunity to talk to you today at the launch of
guidance for victims on completing a victim impact statement. I would like
to set the important development we are here to mark in a broader context.
History
Stepping briefly back to the seventeenth and eighteenth century we can see
a very different role for the victim of crime. The victim was required to
investigate the crime, apprehend the suspect and seek a conviction before
the courts. While the victim was clearly very central to the system, this
is not the type of position contemporary victims advocates have in mind for
the victim. There are obvious pitfalls in placing all this onus on the head
of the victim, arising from the uneven distribution of economic resources
and power differentials in society.
In the nineteenth century a centralised police force, a unified prison
system and a single prosecution service were established in Ireland.
Prosecution of crime was to be undertaken on behalf of the state, rather
than solely on behalf of the victim. State resources and expertise were to
be used to investigate crimes, apprehend suspects and prosecute cases. To
balance the power of the state, which if abused could be oppressive of the
accused, the defence position was more clearly defined. The doctrine of
proof beyond reasonable doubt was developed as were exclusionary rules in
relation to evidence. Thus we came in the nineteenth and early twentieth
century to the equality of arms framework which now governs the process in
criminal trials.
A by-product of the equality of arms was a side-lining of the victim, who
was absent, or was a spectator, or who might at best be called as a witness
in a process which was not very clear to the lay person. This marginalising
of the victim in turn began to change in the last quarter of the twentieth
century.
The advent of US victims legislation, victim support organisations in
Ireland and other European countries and a European victim support
organisation provided the backdrop to the original 1993 incarnation of the
Victim Impact Statement in Ireland. At the time of its introduction there
was much debate on its function: as catharsis for the victim or as an
influence on the sentence.
Role of the EU
Meanwhile at EU level the Framework Decision on victims of crime was passed
in 2001. We now have its successor, the Victims Directive of 2012. This
directive must be transposed into Irish legislation and new procedures
functioning in practice by 16 November, 2015. There are also EU directives
on trafficking in human beings and child exploitation which both contain
elements in relation to the care of victims.
EU Presidency
The rights of victims of trafficking have been a focus of the Irish
Presidency of the European Council. We have worked closely with the
Commission to develop a handbook that sets out the rights of victims in
simple language that should be understandable to practitioners on the
ground and victims themselves. At the Justice and Home Affairs Council in
June, Member States committed themselves to ensuring that information in
this format is available to practitioners and victims in all Member States.
The Irish EU Presidency secured agreement on an EU Regulation on mutual
recognition of protection measures in civil matters. The Regulation
provides the legal framework under which a protection order, such as a
barring or safety order, obtained by a victim of domestic violence in one
EU Member State can be recognised and enforceable in other EU Member
States. The measure will enable victims of domestic violence to travel
around Europe or to relocate to another EU Member State in safety, without
having to go through additional court processes in other Member States.
Another feature of the Irish Presidency was the EU – US Ministerial meeting
which I chaired. The first item on our agenda was an exchange of
information on the issue of victims. Immediately after our meeting the US
Attorney General, Eric Holder, US Deputy Secretary for Homeland Security,
Rand Beers, EU Commissioner for Home Affairs, Vice President Viviane
Reding, EU Commissioner for Justice, Cecilia Malmstrom and I met privately
with Irish victims groups. I recognise a few familiar faces here today,
from that meeting.
Victim Impact Statement
So, in outline this is the backdrop to our system of victim impact
statements. But the statement evolved further after the 1993 legislation.
The Act of 1993 confined statements to victims of violence and sexual
offences. However, some judges gave the families of victims of murder the
opportunity to make victim impact statements. The sentence for murder is a
mandatory life sentence. Therefore, any victim impact statement cannot
influence the sentence. However, there was a recognition by some members of
the judiciary that it was still of benefit to families to have their say.
Then came the hard case where something was said in a victim impact
statement that should not have been said. Taking full account of the
judicial views expressed in judgement arising from that case, the victim
impact statement was extended to families of murder victims among others in
the Criminal Procedure Act, 2010. In addition, the simple permissive
section in the 1993 legislation was strengthened to formalise safeguards
against further mishap.
In my view, this development of the victim impact statement over the last
twenty years, is an example of the constructive interplay between the
executive and judicial functions, without either arm compromising its
rightful independence of the other. The development of the guidance for
victims on completing the victim impact statement is another example of the
fruitful cooperation of statutorily independent offices to achieve a
desirable outcome for all.
Guidance for Victims
The victim impact statement is evidence. Members of An Garda Síochána have
instilled into them from their earliest days in training that evidence in
the victims own words is inviolable. Therefore, when individual family
liaison officers and other members were asked by victims for guidance in
drawing up a victim impact statement it placed them in a situation of
conflict. If they gave general advice in order to be helpful they were
coming close to what was for them a taboo – putting words in the victim’s
mouth.
Into this difficult situation stepped Assistant Commissioner Jack Nolan. He
called a meeting where An Garda Síochána, the Office of the Director of
Public Prosecutions and my Department agreed a plan of action. Officials
would draft simple, clear guidance for the victim faced with making a
victim impact statement. This would be cleared by the respective heads of
the three organisations. Then An Garda Síochána would approach the judicial
Presidents to inform them of the proposed text.
It sounds like a straightforward plan, but it required more than a little
to-ing and fro-ing, drafting and re-drafting. As a result of this detailed
work we are now here launching this important new guidance leaflet. It is
written in a simple question and answer format throughout. It gives victims
a basic overview of what a victim impact statement is and also what it is
not. It is written in simple language and does not oblige any victim to
spend a number of semesters studying the law of evidence.
The booklet is modestly printed in-house by An Garda Síochána. It has also
been translated into Irish and no fewer than ten other languages. The costs
for this, though modest, were shared between the three organisations. It is
intended to place these booklets on the internet. This part of the work
illustrates that, even in times when funding is an issue, important
improvements can be made.
Conclusion
All those involved in getting us to this day are to be complimented. The
way they worked together while respecting the different statutory roles of
the other organisations is a model for the future. I have in mind work
together on a much larger scale, to meet our legal obligation to have a
fully functioning regime for victims of crime, compliant with the EU
Directive, by November, 2015. It is not within the power of any single
organisation to bring about such a situation. The work on the current
guidance document gives me hope that together we can create a more humane
system which, respecting fully the rights of the accused, can accommodate
the legitimate needs of the victim.