COMPLAINANTS IN rape and sexual assault cases are to be offered explanations within the next year when the Director of Public Prosecutions (DPP) decides not to bring a prosecution.
DPP James Hamilton said he hopes to begin expanding the pilot programme explaining the reasons for some non-prosecutions. This project was introduced in 2008 for homicide and fatal road traffic crashes and workplace accidents, but now it is hoped to extend it to cases of rape, sexual assault and serious assaults.
“I would like to extend the pilot programme and I know from talking to victims’ organisations that the big area they want to see us deal with is sexual offences – rape and sexual assault – and I hope we will be able to do that in the not too distant future,” he said.
“Serious assault is another area that I think one would want to move to as well, in fact any offence involving personal violence – they are probably the most important from the victim’s point of view and the general public’s point of view,” he said.
Under the 2008 pilot programme, which looked at cases involving a fatality, the DPP’s office has offered explanations to the family of the deceased where it was decided not to prosecute.
Explanations have been offered in around a dozen such cases to date and while the number was “surprisingly small”, it may be due to the fact that sometimes the reason is obvious as in single vehicle road crashes where the driver is killed and no one can be prosecuted, he said.
In some homicide cases, particularly those connected to gang violence, it was not possible to bring a prosecution simply because witnesses do not come forward or because gardaí do not have enough evidence to prepare a file on the killing for his office, he added. Speaking at a conference entitled Accommodating Victims in The Criminal Justice System organised by the Centre for Criminal Justice and Human Rights at the faculty of law in University College Cork, Mr Hamilton said the pilot programme was “resource intensive”.
Considerable care has to be taken to set out as accurately as possible the factors which have militated against a prosecution and a decision made as to the level of detail in the letter of explanation, and it has to be drafted in a form free of legalistic jargon.
Mr Hamilton hoped that by next year he and his staff will have built up more experience in giving reasons to victims but he said he would be concerned if the expansion of the project was to result in any significant slowing down in dealing with files being received.
Mr Hamilton also suggested a need for further legislative study on the issue of whether a victim’s previous sexual history should be admitted in evidence as it appeared that the threshold for a defendant seeking to have such evidence admitted was very low.
He pointed out that under Section 4A of the Criminal Law (Rape) Act 1981, inserted by Section 34 of the Sex Offenders Act 2001, an accused person can apply for leave to adduce evidence of the complainant’s prior sexual history.
The DPP’s office had reviewed the files in 59 rapes in the period 2002 to 2009 in which the Legal Aid Board had confirmed that applications had been made by defendants to examine a witness on their previous sexual history. Some 40 cases of these ultimately went to trial.
Of these 40 cases, applications were granted in 28 or 70 per cent to allow the complainant’s previous sexual history be introduced, while applications were refused in just four cases or 10 per cent of cases and it was difficult to see any legislative solution without further study, he said.