Thurles Information

• ‘Honest belief’ that a victim had given consent will no longer be a defence in rape cases.
• Character references must be given on oath or via affidavit in sexual offence trials.
• Bill delivers on key reforms in ‘Supporting a Victim’s Journey’ to improve the criminal justice system for victims.
• Establishment of new coordination framework to help victims of human trafficking.

The Minister for Justice, Mrs Helen McEntee TD, has secured Government approval to publish a wide-ranging new Bill that strengthens the law around sexual offences and improves protections for victims of sexual offences and of human trafficking.

Among the main provisions of the Criminal Law (Sexual Offences and Human Trafficking) Bill 2023 is a strengthening of the law in relation to consent. At present, a person can be found not guilty of rape if they honestly, but mistakenly, believed that they had the consent of the victim.

The law is subjective. In effect, the alleged perpetrator can claim they are not guilty of rape, because they honestly but mistakenly believed they had consent. This new Bill from Minister McEntee, is a key element of her Zero Tolerance Plan to tackle Domestic, Sexual and Gender Based Violence will change this. The question now will be whether the belief is one that a reasonable person would have held in the circumstances, rather than whether such belief was honestly held. This belief must be objectively reasonable rather than subjective.

Where the question of reasonable belief arises in a trial, the jury must have regard to the steps, if any, taken by the accused to ascertain whether the victim consented to the intercourse.

Minister McEntee said: “One of my key priorities as Minister for Justice is tackling domestic, sexual and gender-based violence and better supporting and protecting victims of crime.
The Criminal Law (Sexual Offences and Human Trafficking) Bill 2023 is a key piece of legislation to deliver on these priorities.
It will strengthen the law around consent in rape cases, requiring that an alleged perpetrator must have ‘reasonably believed’ that they had consent and removing the current defence of ‘honest belief’. A subjective belief that a person had consent should not be sufficient to be used a defence.
This is in line with recommendations of the Law Reform Commission.”

Another change in this Bill is strengthening protections for victims as regards character references in sexual offence trials, another commitment from Minister McEntee’s Zero Tolerance plan.
This Bill will provide that if a person wants to give a character reference for someone who has been convicted of a sexual offence at their sentencing hearing, the reference must be given on oath or via affidavit.
Currently if a witness is called to court to provide character evidence, this evidence is given under oath.
However, written testimonials are not sworn. Minister McEntee’s Bill provides that when a person has been convicted of a sexual offence, character references presented at sentencing must be made via oath or affidavit. This will ensure that the person providing the reference swears to the veracity of their statement and can be called before the court for cross examination. In effect, it will mean character reference letters will no longer be able to be read out in court unchallenged, if warranted.
The purpose of including this provision in the Bill is to protect the victims of sexual crimes from further traumatisation during the sentencing hearing.

The Minister has now received Cabinet approval for these changes, and she has also worked with Senators Regina Doherty, Lisa Chambers and Pauline O’Reilly on the issue.

Minister McEntee further stated: “The use of character references can often cause further trauma for victims and it is clear to me that we need stronger rules around how they can be used in court.
This legislation will introduce a requirement for character references in sexual offences cases to be made under oath or affidavit, rather than by an unsworn letter to the Court.
This means that the person who provides the character reference can be cross examined if necessary.”

The Criminal Law (Sexual Offences and Human Trafficking) Bill 2023 will also deliver on key reforms in ‘Supporting a Victim’s Journey’ to improve the criminal justice system for victims.

• These include:
• Separate legal representation for victims of sexual assault if there is an application to question them on their previous sexual experience;
• If this application is granted, the barrister representing the victim will continue to represent the victim during the questioning;Ensuring anonymity for victims in all trials for sexual offences;
• Providing anonymity for the accused for certain sexual offences;
• Updating the definitions for publish and broadcast;
• Repeal of statutes that provide that the verdict or decision in trials be announced in public.

Minister McEntee said: “We are delivering a number of the recommendations from the O’Malley report relating to legal representation for victims if there is an application to cross-examine a victim about their previous sexual history in sexual offence trials and including ensuring victim anonymity in all trials for sexual offences.
These are all issues that we know can further victimise, re-traumatise and deny justice to survivors of sexual assault, and I determined to see these important protections legislated for introduced as soon as possible.”

The new legislation will also implement recommendations by the Defence Forces Independent Review Group (IRG). The IRG recommended amendments to the Defence Act 1954 to ensure that persons subject to military law who commit sexual offences in this jurisdiction will be dealt with by An Garda Síochána and the civilian courts rather than by courts-martial. This Bill gives effect to those amendments.

The Bill will also put a revised National Referral Mechanism (NRM) in place for identification and support of victims of human trafficking.

The National Referral Mechanism is the framework through which the State identifies and supports victims of human trafficking. At the moment, An Garda Síochána is solely responsible for identifying victims of human trafficking.

Under the new NRM, multiple other relevant Departments and agencies will be designated as competent authorities to identify victims and will also allow civil society organisations supporting victims of trafficking to be designated as Trusted Partners.

Minister McEntee continued: “This new approach will make it easier for victims of trafficking to come forward, be identified and access advice, accommodation and support.
The reality is that some victims of trafficking, because of interactions they may have had with law enforcement officials in other jurisdictions, have a perception that police cannot be trusted. This may prevent them from identifying themselves to An Garda Síochána as victims, ultimately limiting their access to supports and justice.
The new approach acknowledges other State bodies – outside of An Garda Síochána – and NGOs have a role in identifying victims of human trafficking and referring them to the NRM, through which identified victims can get the necessary supports.”

The published Bill will now be presented to the Houses of the Oireachtas, where it will be debated.

Minister for Justice Mrs Helen McEntee TD has welcomed the passage of the Judicial Appointments Commission Bill 2022 through its final stages in Seanad Éireann.

The Bill, when enacted, will lead to the biggest reform in how judges are appointed in a quarter of a century, through the establishment of a new Judicial Appointments Commission.

The Commission will replace the Judicial Appointments Advisory Board (JAAB) and will recommend persons for appointment as judges by the President on the advice of the Government under the Constitution.

It will also recommend persons for nomination by the Government to international courts outside the State.

Minister McEntee said: “This represents an important step forward in the reform of the judicial appointments process, as committed to in my Justice Plan 2023. The recognised excellence of our judges and judiciary will be further enhanced by the provisions of this Bill, which introduces a new recommendation and appointments process and ensures that judicial selection is conducted in a modern, open and transparent way.  The new legislation will ensure that anyone who wishes to be considered for appointment to judicial office, including serving judges, will apply to the Commission and undergo the same application and interview processes. Furthermore, the establishment of a new, independent Judicial Appointments Commission will ensure that the selection of nominees for judicial office will be through fair and open competition from the widest range of possible candidates. This Bill follows a substantial process of consultations, in particular with the Attorney General, the European Commission and the Chief Justice. It also takes into account key aspects of a comprehensive pre-legislative scrutiny report prepared by an Oireachtas Committee.”

The Chief Justice will chair the Commission, which will comprise of an equal number of lay members and judge members.

In addition, the Bill provides for the following:

• Three persons will be recommended for a vacancy and an additional two recommendations for a second and additional vacancy (e.g. seven recommendations for three vacancies).

• Any person who is to be recommended to the Minister should have been interviewed, and therefore the Minister has provided accordingly.

• The Bill contains a requirement for the Commission to publish a Diversity statement relating to the objective that membership of the judiciary should reflect the diversity of the population as a whole.

• A provision has also been inserted in the Bill that requirements for judicial appointment will reflect the need for candidates to undergo judicial training or continuous professional development.

Minister McEntee added: “The enactment of this legislation will enable the continued appointment of excellent judges, which are a cornerstone of a strong, independent judiciary This independence is important in ensuring public confidence in the courts to uphold the law. I look forward to working with all members of the Houses of the Oireachtas to bring this legislation to enactment as soon as possible.”