Criminal Procedure Act 2010

4.

Amendment of section 5 of Act of 1993.

4.— The Act of 1993 is amended by the substitution of the following section for section 5:

“Effect of certain offences on persons in respect of whom offence committed.

5.— (1) This section applies to—

( a) a sexual offence within the meaning of the Criminal Evidence Act 1992,

( b) an offence involving violence or the threat of violence to a person,

( c) an offence under the Non-Fatal Offences Against the Person Act 1997, and

( d) an offence consisting of attempting or conspiring to commit, or aiding, abetting, counselling, procuring or inciting the commission of, an offence mentioned in paragraph ( a), ( b) or ( c).

(2) ( a) When imposing sentence on a person for an offence to which this section applies, a court shall take into account, and may, where necessary, receive evidence or submissions concerning, any effect (whether long-term or otherwise) of the offence on the person in respect of whom the offence was committed.

( b) For the purposes of paragraph ( a), a ‘person in respect of whom the offence was committed’ includes, where, as a result of the offence, that person has died, is ill or is otherwise incapacitated, a family member of that person.

(3) ( a) When imposing sentence on a person for an offence to which this section applies, a court shall, upon application by the person in respect of whom such offence was committed, hear the evidence of the person in respect of whom the offence was committed as to the effect of the offence on such person.

( b) For the purpose of paragraph ( a), where the person in respect of whom the offence was committed—

(i) is a child under the age of 14 years, the child, or his or her parent or guardian, may give evidence as to the effect of the offence concerned on that child,

(ii) is—

(I) a person with a mental disorder (not resulting from the offence concerned), the person or a family member,

(II) a person with a mental disorder (not resulting from the offence concerned), who is a child, the person or his or her parent or guardian,

may give evidence as to the effect of the offence concerned on that person,

(iii) is a person who is ill or is otherwise incapacitated as a result of the offence, a family member of the person may give evidence as to the effect of the offence concerned on that person and on his or her family members,

(iv) has died as a result of the offence, a family member of the person may give evidence as to the effect of the offence concerned—

(I) on the person between the commission of the offence and his or her death (where relevant), and

(II) on the family members of the person who has died.

( c) A person who has been convicted of an offence to which this section applies may not give evidence pursuant to paragraph ( b) in respect of that offence.

( d) Where more than one family member seeks to avail of paragraph ( b), the court may direct the family members to nominate one or more family members for the purpose of that paragraph.

( e) Where the court directs the family members to nominate one or more family members pursuant to paragraph ( d) and the family members are unable to reach agreement, the court may, having regard to the degree of relationship between the family members and the person in respect of whom the offence was committed, nominate one or more family members as it considers appropriate.

(4) Where no evidence is given pursuant to subsection (3), the court shall not draw an inference that the offence had little or no effect (whether long-term or otherwise) on the person in respect of whom the offence was committed or, where appropriate, on his or her family members.

(5) ( a) The court may, in the interests of justice, order that information relating to the evidence given under subsection (3) or a part of it shall not be published or broadcast.

( b) If any matter is published or broadcast in contravention of paragraph ( a), the following persons, namely—

(i) in the case of a publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical,

(ii) in the case of any other publication, the person who publishes it, and

(iii) in the case of a broadcast, any person who transmits or provides the programme in which the broadcast is made and any person having functions in relation to the programme corresponding to those of the editor of a newspaper,

shall be guilty of an offence.

( c) A person guilty of an offence under paragraph ( b) shall be liable—

(i) on summary conviction, to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 12 months or to both, or

(ii) on conviction on indictment, to a fine not exceeding €50,000 or to imprisonment for a term not exceeding 3 years or to both.

( d) Where an offence under paragraph ( b) is committed by a body corporate and is proved to have been so committed with the consent, connivance or approval of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other officer of the body corporate or any other person who was acting or purporting to act in any such capacity, that person as well as the body corporate shall be guilty of an offence and be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

( e) Where the affairs of a body corporate are managed by its members, paragraph ( d) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.

(6) In this section and in sections 5A and 5B, unless the context otherwise requires—

‘broadcast’ has the meaning it has in section 2 of the Broadcasting Act 2009;

‘child’ means a person under the age of 18;

‘family member’ means—

( a) a spouse or partner of the person,

( b) a child, grandchild, parent, grandparent, brother, sister, uncle, aunt, nephew or niece of the person,

( c) a person who is acting in loco parentis to the person,

( d) a dependant of the person, or

( e) any other person whom the court considers to have had a close connection with the person;

‘guardian’, in relation to a child, has the meaning it has in the Children Act 2001;

‘mental disorder’ includes a mental illness, mental disability, dementia or any disease of the mind;

‘publish’ means publish, other than by way of broadcast, to the public or a portion of the public.”.