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

Date01 January 2016
AuthorLisa Quinn O'Flaherty
An Argument for Advocates for Victims of
Crime, in Light of Ireland’s Obligations under
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
1 S. 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
2 ibid, pp. 2 –3
3 Article 40.3.2, Bunreacht na hEireann, 1937
4 Law Reform Commission, Report on Rape and Allied Oences (Dublin: Law Reform Commission,
1988), p. 4
06 O'Flaherty.indd 114 24/05/2016 11:22
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,6 Charleton 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),8 who 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 proce edings.
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.
5 Sheena Norton, “e Place of Victims in the Criminal Justice System”, Irish Probation Journal, vol.
4, no. 1, September 2007, p. 63
6 DPP (Walsh) v Cash [2007] I.E.H.C. 108
7 ibid, para. 50
8 Attorney General’s Reference (No.3 of 1999) [2001] 2. A.C. 91
9 ibid, p. 118
11 M.C. v Bulgaria, no. 39272/98, ECHR, 2003-XII
12 Y. v Slovenia, no. 41107/10, ECHR, 2015
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