An Argument for Advocates for Victims of Crime, in Light of Ireland's Obligations under Directive 2012/29/EU

• Date: 01 January 2016
• Author: Lisa Quinn O'Flaherty

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An Argument for Advocates for Victims of

Crime, in Light of Ireland’s Obligations under

Directive 2012/29/EU

LISA QUINN O’FLAHERTY

e Elephant in the Court Room

Victims of crime are in the strange and unsatisfactory position of being at the very

centre of criminal proceedings yet having little to no voice in those proceedings.

is anomaly has grown out of our legal history, whereby until and during the 18th

century, victims were at the heart of criminal justice procedure, acting as prosecutor.

It became widely felt, however, that this devalued the criminal legal process by

allowing wealthy victims to pursue oenders with greater vigour than the poor. It

was further felt that some victim prosecutors were susceptible to intimidation and

bribery, making the process unequal and corrupt. roughout the 19th and 20th

centuries, the state became the central player in prosecuting crime in order to create

a balanced and fair system of criminal justice, benecial to society as a whole, as a

separate and distinct entity to the realm of private law.1

Kilcommins and Moett write that “[v]ictims were thus written out of the State-

accused justice system, their absentee status quickly acquiring a relative permanence

… eir voices were not heard … given the commitments, value choices and

governing principles of this institutional arrangement.”2

Article 40.3.2° of the Irish Constitution provides that the “State shall, in particular,

by its laws protect as best it may from unjust attack and, in the case of injustice done,

vindicate the life, person, good name, and property rights of every citizen”.3 is

obligation on the State goes beyond prosecuting crime; it requires a “vindication”

of rights, in both a practical and psychological manner.

It is now widely recognised that psychological vindication for the victim of crime

is a “legitimate function of the criminal law additional to its primary function of

punishing the guilty”.4 It is dicult to see how such psychological vindication

can be achieved while the victim plays no role but that of prosecution witness

1S. Kilcommins and L. Moett, “e Inclusion and Juridication of Victims on the Island of Ireland”

in Routledge Handbook of Irish Criminology (Abingdon: Routledge, 2016), pp. 1 –2

2ibid, pp. 2 –3

3Article 40.3.2, Bunreacht na hEireann, 1937

4Law Reform Commission, Report on Rape and Allied Oences (Dublin: Law Reform Commission,

1988), p. 4

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An Argument for Advocates for Victims of Crime 115

during criminal proceedings. e past thirty to forty years have seen a push for

more involvement of and respect for the victim in criminal proceedings.5 In

DPP (Walsh) v Cash,6Charleton J stated that “the victim, being the subject of a

crime, can have interests which should be weighed in the balance as well of those

of the accused”,7 and further cited with approval Lord Steyn in Attorney General’s

Reference (No. 3 of 1999),8who said that a “criminal case … requires the Court to

consider a triangulation of interests. It involves taking into account the position of

the accused, the victim and his or her family and the public.”9 It is clear from that

ratio that the victim should be regarded as more than a mere disinterested third

party in criminal proceedings.

Article 13 of the European Convention on Human Rights provides for a right to

an expeditious and eective remedy in law where a right has been violated.10 It is

arguable that there is no eective remedy where the victim has no part in criminal

proceedings. M.C. v Bulgaria11 showed that this right included a right to have

reports of crime taken seriously and fully investigated. In that case, failure to do so

was found to have contributed to the trauma suered by the victim.

Y v Slovenia12 was a case under arts 6 and 8 in which the European Court of Human

Rights imposed damages on the member state for a complete disregard for the

rights and sensitivities of the now adult victim of sexual assault on a child, during

the criminal process. e rights of the accused took precedence, allowing him to

obtain multiple adjournments of proceedings causing delay, allowing a lawyer to

represent the accused despite being the person to whom the victim stated she had

rst disclosed the sexual assault; a lawyer who had been asked to withdraw from

the case, and eventually allowing the accused to cross-examine the victim. He was

allowed, despite being represented, to personally question her during four separate

hearings for periods of up to four hours. He asked her over 100 questions including

“is it true that you have told me that you can cry on cue?” and “is it true that if I

had wished you to satisfy my sexual needs I would have called you at least once?”.

Moreover, the gynaecologist, who had examined the victim addressed matters far in

excess of the investigating judge’s request, stating that the victim’s hymen had been

intact during his examination and asking the victim why she had not “defended

herself more rigourously” during the attack. e Court held that there was an

inadequate balance between the rights of the accused and the rights of the victim

through the national proceedings.

5Sheena Norton, “e Place of Victims in the Criminal Justice System”, Irish Probation Journal, vol.

4, no. 1, September 2007, p. 63

6DPP (Walsh) v Cash[2007] I.E.H.C. 108

7ibid, para. 50

8Attorney General’s Reference (No.3 of 1999)[2001] 2. A.C. 91

9ibid, p. 118

10Article 13, European Convention on Human Rights

11M.C. v Bulgaria, no. 39272/98, ECHR, 2003-XII

12Y. v Slovenia, no. 41107/10, ECHR, 2015

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