Minister for Justice Brian Lenihan has expressed his opposition to a suggestion that a victim of crime could be sanctioned for straying beyond an agreed victim impact statement at a sentencing hearing of a convicted person.
"I think proposals that involve sanctioning of victims are not on. The idea that a victim could be penalised because of a comment they made about a case seems to me to be unthinkable," said Mr Lenihan.
He was responding to a question regarding suggestions made by Mrs Justice Fidelma Macken in her judgment on the appeal brought by the Director of Public Prosecutions against the leniency of the sentence imposed on Wayne O'Donoghue for the manslaughter of 11-year-old Robert Holohan.
Mrs Justice Macken suggested that a person making a victim impact statement in court should be warned by the sentencing judge that if they departed in any material way from the statement as submitted, they could be held in contempt of court. "If it be the case that such departure occurs and involves unfounded or scurrilous allegations against an accused, that fact may be considered by the sentencing judge to be a matter to be taken into account in mitigation of the sentence to be imposed," she added.
Earlier this month, the sentencing judge in the Wayne O'Donoghue case, Mr Justice Paul Carney, expressed "grave reservations" about "these guidelines", arguing that it would confer a right of censorship of rapists over their victims.
However, counsel for O'Donoghue, Blaise O'Carroll SC, said last week he believed his client should have been released immediately when Robert Holohan's mother, Majella, departed from her agreed victim impact statement to ask how semen was found on her son's body.
Mr O'Carroll said Ms Holohan's comments interfered with his client's constitutional right to a fair sentencing and he should have been "released forthwith on the basis of what had happened was a complete annihilation of the criminal justice system".
Questioned on what should be permitted in victim impact statements, Mr Lenihan reiterated his belief that the only practical proposal was for judges to limit the publication in a victim impact statement of any evidence that was inadmissible at trial.
"The Criminal Law Rebalancing Group looked at this issue and they recommended that a trial judge should have the power to prohibit publication of such material - that's the only practical proposal. I am examining that but again I haven't committed myself to it," he said.
Mr Lenihan also expressed concerns about the danger of media organisations publishing inadmissible evidence at trial after conviction and the impact that this could have on an accused person's right to a fair retrial in the event of a successful appeal against conviction.
"There is an issue that has to be balanced, not just in this context [ victim impact statement] but generally in relation to the reporting of criminal trials, about how safe it is to have inadmissible evidence referred to in publications," said Mr Lenihan.
Mr Lenihan said he was "not promising legislation in this area" but that it was "just an issue that I'm examining".
He mentioned a recent high-profile murder trial where newspapers published material which was not admitted in evidence even though the accused still had the right to lodge an appeal against conviction, which he has since done.
