RESTRICTIONS ON fundamental rights in the context of the criminal justice system do little or nothing to vindicate the rights of victims of crime, according to the Irish Council for Civil Liberties.
The rights of victims should be provided for in a separate charter, based on principles drawn from a number of international human rights instruments, the ICCL says in one of two documents released this week. One examines the human rights implications of the report from the Balance in the Criminal Law Review Group, published last year. The group was set up by then minister for justice Michael McDowell and many of its recommendations were incorporated into his Criminal Justice Act enacted last year.
The other document examines the rights of victims in the criminal justice system. Both documents will be discussed at a symposium on victims in the criminal justice system being organised by the ICCL next month.
Referring to the review group’s report, the ICCL document is critical of the “widespread misconception” that limiting the rights of defendants can in some way enhance or bolster the rights of the victims of crime.
“A widespread fallacy about criminal justice is that the prosecution of an offence by the DPP involves a weighing up of the defendant’s ‘case’ against the victim’s ‘case’,” it says. Instead, the State is charged with investigating the offence and taking prosecutions on behalf of “the People”.
“The core legal relationship is between the State and the defendant.”
It expresses reservations about aspects of the review group’s “rebalancing” of the criminal law. “In the ICCL’s view, the review group has failed to strike an appropriate balance between respecting due process and protecting the interests of justice,” it says.
“Victims have often been forgotten players in our criminal justice system, and their rights should be enhanced. However, this cannot be achieved by chipping away at the fundamental rights of people rightly or wrongly accused of crimes.”
Specifically, it says that allowing inferences to be drawn from a person exercising his or her right to silence when questioned by gardaí – a measure introduced in the 2007 Act – has not been accompanied by the appropriate safeguards. “Lawyers still cannot be present during Garda questioning and judges lack guidance on the proper instruction of juries against drawing improper inferences from silence,” it says, recommending that these be addressed.
It also recommends that any reform on allowing “bad character” evidence to be introduced strikes an appropriate balance between the rights of an accused person and the interests of justice.
In its document on victims’ rights, the ICCL points out that these have been addressed by the UN, the EU and the European Convention on Human Rights, and recommends that the Irish Government ensure that the standards set by these bodies be met. A comprehensive definition of who is a victim of crime should be incorporated into Irish law, it states.
The rights that should be incorporated into a charter for victims should include the right to be informed throughout the investigation and trial process, and the right to protection from intimidation and harassment.