IN EARLIER times victims were left to seek their own remedy, often their own vengeance through blood feuds, an "eye for an eye" approach.
From the late 18th and early 19th century, with the development of effectively organised police forces and trial courts, the prosecution of offences was taken into the hands of the state, and the maximum penalties for different offences were set out in statutory form. Crime was seen, and continues to be seen, as an offence against the community, against citizens in general.
In the development of this form of criminal trial, however, the position of the victim of crime, in particular of a crime of violence against the person, was diminished. The victim had an important role in reporting crime, and as a witness at the trial, but often had little information about the course of the police investigation, little understanding of the decisions of the prosecuting authorities or of the unfamiliar procedures of the trial.
Victims of crime felt "left out of account" or even revictimised by the trial itself. This was particularly so in the case of victims of rape, where persistent and hostile cross-examination on the intimate details of their previous private lives was a permitted and indeed standard tactic of the defence.
At this conference, where we are considering the voice of the child, it is clear that what I have just said about the victim experience of the law would apply even more strongly to a child victim, lost in a strange world of people talking an unknown and incomprehensible language.
For the past 15 to 20 years, however, there has been a change in the public mind about the position of victims in the criminal process as a whole [and] by the mid-1980s a victims' rights movement was growing internationally.
In this country the claims for victims to be heard was spear-headed by the work of the Rape Crisis Centre on behalf of the victims of rape, but other victim-oriented groups also sought a greater voice in court proceedings for the victims of crime.
In response to this general movement on behalf of victims' rights the Oireachtas enacted section 5 of the Criminal Justice Act 1993, which has later been amended by section 16 of the Criminal Justice (Miscellaneous Provisions) Act 1997. It is important to consider the main terms of the section. Section 5 (1) provides: "In determining the sentence to be imposed on a person for an offence to which this section applies, a court shall take into account, and may, where necessary, receive evidence or submissions concerning, any effect (whether long-term or otherwise) of the offence on the person in respect of whom the offence was committed."
Section 5 (3) provides: "Where a court is determining the sentence to be imposed on a person for an offence to which this section applies, the court shall, upon application by the person in respect of whom such offence was committed as to the effect of the offence on such person upon being requested to do so."
By Section 5 (2), as amended by the 1997 Act, the provisions of the section are limited to certain classes of criminal offence, in the main sexual offences and offences of violence against the person. It should be noted that offences of homicide (murder, manslaughter, dangerous-driving causing death) do not appear to be included in the section, which refers only to primary victims.
A further development in the interests of victims was the publication in 1999 by the Department of Justice, Equality and Law Reform of the Victims Charter and Guide to the Criminal Justice System.
As is pointed out by Rebecca Coen in an article in the Irish Criminal Law Journal (2006) 16 (3) ICLJ 10: "The introduction of the Charter does indeed represent a culture change, addressing many of the complaints of victims of crime and their advocates by spelling out the obligations of the agents of the State to the victim, from reporting of the crime to the release of the perpetrator."
All this is very welcome. In the years that have elapsed since the enactment of section 5 of the 1993 Act the provision of victim impact statements, either drawn up by the gardaí or by victims, has become a regular feature in relevant criminal trials. Moreover, in many cases oral evidence has been given by victims.
There remains a level of disagreement about the correct procedure in homicide cases where the victim impact statement or oral evidence must originate from a bereaved relative rather than from the primary victim.
In regard to murder convictions, where the mandatory life sentence applies, it is hard to see where victim evidence can fit in with the wording of section 5: "In determining the sentence to be imposed . . . and where a court in determining the sentence to be imposed . . ." and some judges have therefore refused to admit any victim impact statement or victim evidence. Others have taken, one presumes, the view that to "have their day in court" will have a therapeutic effect for the bereaved relative or relatives.
In manslaughter cases, where the sentence is discretionary, the situation is somewhat different, for example in the case of the lengthy and moving victim evidence in the case of DPP v Laide (the Annabel trial) which attracted enormous public attention. Following public discussion there is some indication that amending legislation may be introduced to clarify the position in homicide cases.
There has been little empirical research in this jurisdiction into the outcomes and effects of victim impact statements and evidence on the Irish criminal justice system. The system was introduced in response to sustained advocacy on behalf of victims, but seldom, if ever, have these developments been preceded by any sustained reflection on the compatibility of these innovations with the fundamental nature of the criminal process as we know it.
Following on the controversy which arose from the victim impact evidence given by Mrs Holohan at the sentencing hearing in DPP v Wayne O'Donoghue, the Irish Criminal Law Journal ( 16 (3) ICLJ)published three interesting and thoughtful articles on victim-related issues by Roberta Guiry, Rebecca Coen and Gerard Coffey.
Prof O'Malley deals at some length with the subject in chapter 9 of his work on sentencing, referring in particular to leading Canadian judgments (eg, R v Gabriel (1999) 137 CCC 3d I). There has been a considerable amount of academic and other commentary in other jurisdictions. In reading for this paper I found very helpful a recent comprehensive and balanced article by Peter Sankoff and Lisa Wansbrough in the New Zealand Law Review (NZLR459) entitled: Is Three Really a Crowd? Thoughts about Victim Impact Statements and New Zealand's Revamped Sentencing Regime.
All these commentators raise crucial questions that stem, in the main, from the fact that, while victim impact statements may be helpful in giving a voice to victims, they fit very awkwardly into our normal traditional criminal trial.
What, in reality, is the purpose of a victim impact statement? What do victims themselves see as the purpose? What changes have been brought about in the process of sentencing by the introduction of victim evidence into the process? Has the introduction of such statements and evidence worked to introduce heavier sentences?
Have they contributed, as strongly suggested by Rebecca Coen in her article, to a more strongly punitive approach to sentencing together with a disregard for rehabilitative considerations? From the point of view of the judge, should the victim evidence affect the length of the sentence and, if so, to what degree?
This has been the subject of consideration by the Court of Criminal Appeal in, for example, DPP v Cooney (unrep July 27th 2004).
These are questions which, I believe, deserve some considered thought and some carefully planned research, here in Ireland, particularly before we rush into further media-fuelled "pro-victim" legislation.
Yet, as pointed out by Roberta Guiry at the conclusion of her article, allowing a fraction of the time of a trial to a victim or the family of a homicide victim is something the criminal justice system should be able to accommodate. Doing so does not take away from the time of other individuals in the system and to the victim or the family it can mean a great deal.
Preserving the integrity of the system while affording some consideration to the victim need not be mutually exclusive goals. In short, it is necessary to reconcile the aims of the criminal justice system with the aim of assisting the victim.
This is an edited version of a paper by Mrs Justice Catherine McGuinness to a conference in Dublin Castle on November 22nd on The Voice of the Child: Lost in Translation