2026-05-14

5. Deputy Matt Carthy asked the Minister for Justice, Home Affairs and Migration if he intends to extend the provisions of section 14 of the Criminal Law (Sexual Offences and Human Trafficking) Act 2024, requiring that character references be given on oat to other criminal offences; and if he will make a statement on the matter. [35914/26]

Does the Minister intend to extend the provisions of section 14 of the Criminal Law (Sexual Offences and Human Trafficking) Act that requires character references to be given under oath, to criminal offences other than those included in the original legislation?

It is important, and I commend the Deputy for mentioning section 14 of that legislation because sometimes it is forgotten about. It was commenced in August 2024, so it is only beginning to operate in the past year or so. In effect, it means that if somebody wants to give character evidence in respect of a person being convicted of a serious sexual offence, or of rape, which is the most serious, in order to give that character evidence, they have to do it on oath or affidavit. The former means giving evidence in the court. I think that is the most appropriate way for character evidence to be given in serious offences. Obviously, if people are convicted in the District Court for minor offences I do not think it a tenable requirement that anyone wanting to give character evidence has to give it in a District Court. Certainly, when it comes to serious offences, if you wish to give character evidence in respect of an individual, then the preferable way to do it is in the witness box or on affidavit. Sentencing is a complicated issue and a difficult part of a judge's function. Not only are you sentencing the offence but you are sentencing the offender. You need to have information, if you are a judge, about the offender in order to determine what level of sentence should be imposed. If somebody has a series of previous convictions and there are other issues, a court will take that into account when imposing a sentence. Similarly, if it were a first offence or out of character that is something the court needs to take into account. The appropriate way to do it is not by writing a letter or doing an informal character note. The appropriate way to do it is to ensure you get into the witness box and stand over it.

In many respects the Minister has made the first half of the argument. My point is whether you move to the second logical part of the argument and expand the provisions of this section to include other serious crimes. I am thinking particularly of homicide. It has been seen in the courts that the distinction between somebody just writing a letter saying a particular man or woman is a sound person or whatever and knowing that is something that needs to be done on affidavit or potentially in the witness box is an important one. It sets out the importance of a character reference in any case but especially for serious crimes. Is there any examination in the Department of expanding the section even further?

The Deputy mentioned homicide. Obviously it does not really arise in, say, a murder conviction because somebody is going to automatically face a mandatory life sentence. In terms of manslaughter, it does not apply at present. In general what happens in a case like that is the counsel representing the convicted person at the sentencing hearing will set out what he or she believes are mitigating factors the court should take into account. My view, which I spoke about even before the 2024 legislation commenced, is that it would be preferable if somebody wants to give character evidence in a serious offence - and I emphasise serious, as this cannot be happening the District Court or we would just clog it up - the most appropriate way to do it is on affidavit or by giving evidence in the witness box. That will also remove the informality of it. Sometimes people think they will just write a letter. Generally they are pointless and inappropriate but if you want to assert something about somebody's character you should do it formally.

Clearly when I talk about homicide I am not talking about murder but I have spoken to some victims who were in court for the sentencing of perpetrators who were convicted of actions resulting in the killing of their loved one and the introduction to the sentencing stage of unverified testimony not given under oath or by way of an affidavit really traumatised the family even further. This is often the case where somebody has pleaded guilty to an action that has resulted in the death of somebody else, so there is no trial as such. In many ways, the victims' families feel that perhaps the full truth has not come out about the actions of the person who is responsible and then ultimately, prior to sentencing, a number of testimonies are provided about how great a person this was. In that type of scenario I think the Minister is saying he recognises that type of testimony should be given on affidavit or in the witness box. Will he legislate to ensure that is the case?

It is a complicated issue. Sentencing is complicated. When we discuss it here the emphasis is hugely on the situation of the victim, as it should be. For too long in Ireland the victim did not get the recognition in the criminal justice process. However, a court also has to take into account the individual circumstances of the convicted person. That can be complicated and sometimes evidence of that convicted person - the offender - is necessary. How should that evidence be given? I certainly do not think it is appropriate for that evidence to be just a handwritten note or somebody who does not know the person that well providing that evidence. That is evidentially useless. If somebody wanted to give evidence and say this conviction was out of character, that they have known this person for 20 years and that there were circumstances behind it, then that should be done under oath. I do not want to give the Deputy a commitment today about introducing legislation to that effect but it is something I will give consideration to.