Retired District Judge Michael Pattwell recalls the case of a man convicted of sexually assaulting his granddaughter’s friend when both children were visiting him at home. A priest entered the witness box to give a character reference for the man.
“I asked him if he knew what the accused was charged with and he said he didn’t. I was shocked, I couldn’t believe it, I couldn’t imagine anyone agreeing to provide a character reference without asking what the person was charged with.”
That happened 25 years ago and he “never took much notice” of character references then or since, says Pattwell. “It’s too easy to get a bit of paper and write on it.”
Pattwell “totally agrees” with a new Bill tightening the basis for admission of character references and permitting cross-examination, by prosecution and complainants, of those who provide character references for people convicted of sexual offences.
The Criminal Justice Amendment Bill 2022 is sponsored by leader of the Seanad, Fine Gael Senator Regina Doherty, Green Party Senator Pauline O’Reilly and Fianna Fáil Senator Lisa Chambers.
The Bill states that “in view of the harm caused to society by the commission of sexual offences”, a court, in imposing sentence on a convicted person for such an offence “shall fully interrogate any evidence adduced by or on behalf of the person in relation to their character”.
Now at committee stage in the Seanad awaiting amendments, the Bill means anyone seeking to adduce character evidence for those convicted of sexual offences will need the court’s permission to do so.
They will have to give notice of such an application to the prosecution and complainant, who can object and seek to cross-examine. The court cannot grant leave to adduce the references if it is satisfied they relate to matters concerning status and reputation that, in the court’s opinion, facilitate the commission of the offences concerned.
‘Justice has to be done’
Complainants and the prosecution can, with leave of the court, seek further information about the character evidence and the prosecution can adduce opposing character evidence. Complainants will be entitled to be legally represented during sentencing.
The Bill will not affect unsworn statements made to the court by way of mitigation before sentence is finalised.
“If someone is going to give a reference, they should stand over it, I don’t see any difficulty with that,” says Pattwell. “If someone is trying to influence the court, and that is what a reference is, they should be able to stand over it and deal with it if they are cross-examined. Victims are entitled to challenge anything in the reference that they don’t accept.”
He is not concerned that the proposed measures may, as some lawyers have suggested, add more layers, which could mean extra court time and costs, to the sentencing process.
“Even if it does add to the time it takes, so what? Justice has to be done. If that takes time, it takes time.”
Justice Minister Helen McEntee earlier this year indicated personal support “in principle” for the Bill, but added she considered more work was necessary on the legislation.
Much of the impetus for the Bill emanated from concerns raised by victims of sexual and domestic violence, and organisations working with them, that character references provided for some of those convicted of such offences were retraumatising for victims.
Those offenders included a Cork man found guilty by a jury of 58 charges, including rape and sexual assault of his former partner and her son. The court was told he made life a “living hell” for the woman and her children. Some 11 character references were provided, including from neighbours, former colleagues and friends, with some describing the man as a “caring father”.
Refused references
In a separate case earlier this year, Mr Justice David Keane refused to accept character references submitted on behalf of a Sligo man who was found guilty at the Central Criminal Court of the rape, indecent assault and sexual assault of three children.
The judge said he would allow character references only if the people who had written them were present in court to take the stand to allow for cross-examination.
‘We see at first hand the impact on victims in court when they hear character references which do not equate with the victim’s experience and perception of the convicted offender’
Shirley Scott, policy manager with the Dublin Rape Crisis Centre, says its concern is about the potential of character references to retraumatise victims. Its CEO, Noeline Blackwell, worked with Senator Doherty in relation to the Bill.
“We were happy to do so because we see at first hand the impact on victims in court when they hear character references which do not equate with the victim’s experience and perception of the convicted offender.
“It is very difficult for a victim to hear an unchallenged letter of support for a person found guilty of rape and sexual assault being read to the court,” says Scott.
“Victims have to give evidence on oath but they simply do not know what weight is given by judges to character references and letters of support which present offenders in a different light.”
Senator Doherty has welcomed the Bill passing second stage in the Dáil and is hoping it will make further progress this month. A number of amendments are required to ensure it is in conformity with the Children Act, she says.
“In mitigation, there can be references saying what a great footballer you are, or how active you are on the Tidy Towns committee,” says Doherty. “That is not relevant to the offence. If you’re going to say a person is of good character, then you should be willing to be cross-examined about that. It’s totally acceptable to have evidence in mitigation, evidence indicating remorse or participating in drug treatment programmes for instance, or offering remediation, all of that is relevant. What I’m concerned about is the practice that has developed over time where people like priests and GAA chairs are providing letters saying ‘He’s a great fellow.’ That is not relevant but it has crept in.”
‘Think twice’
Doherty, like many politicians, has some experience of providing references.
“I gave one for a young man who was a heroin addict but had turned his life around and I was prepared to go to court and be cross-examined about that. If you’re going to provide a reference and are not prepared to answer questions and be cross-examined about how on earth it is relevant whether the fellow is a good footballer, then you should not provide them. I really hope this makes people think twice.”
She accepts the proposed measures may give rise to a quid pro quo, the possibility of victims being quizzed about their victim impact statements, but considers that is unlikely. “In my view, there is nothing to cross-examine there.”
Jenny McGeever, an experienced criminal defence solicitor, has a very different perspective.
‘Are we saying a convicted person is a 100 per cent bad person, are we losing sight of the need for a balanced approach to sentencing, the requirement to have a rehabilitative as well as a punitive element?’
The Bill, she believes, reflects a “very severe” approach, particularly to young offenders, and could lead to a reluctance to provide references at all.
“I don’t see how making references more difficult will assist anyone. Are we saying a convicted person is a 100 per cent bad person, are we losing sight of the need for a balanced approach to sentencing, the requirement to have a rehabilitative as well as a punitive element?”
“Character references are extremely important, they give the court a more rounded view of the person. It’s good for judges to hear the voices of people who know the convicted persons, especially because a prison sentence means they will be away from their family units.”
A letter from a parent, brother, sister, priest, football coach can give a fuller picture of the convicted person than something that only centres on their offence, according to McGeever.
‘Bigger picture’
“In my experience, referees tend to confine their comments to the area of the offender’s life about which they know something. ”
“This Bill appears to reflect a very black and white view, it’s not letting the court see the bigger picture, it’s almost disrespectful to the court. It’s part of the judicial function to decide the correct sentence but, for that, judges need to know something about the person generally, not just what they did.”
Part of the sentencing process should be about considering what might have happened to the offender themselves, she says. “It’s not about what is ‘wrong’ with them. Most of those I see don’t set out to be bad, things happen along the way in life: addiction, abuse, mental health issues.”
The courts, adds McGeever, take victim impact reports very seriously when deciding sentence and accept those reports as a bona fide account of a victim’s experience.
For the court to decide on a sentence that is proportionate and fair, character references are useful, she says. “Sentences should be fair and just and should also be about helping an offender in terms of rehabilitation. I don’t believe there is any need to introduce a requirement for cross-examination of referees, this is not something that should be interfered with by lobbying groups.
“Judges will decide what merit there is in references. There are clear sentencing parameters as there are. Mitigatory factors include guilty pleas. If there is anyone out there who has something good to say about an offender, I don’t see why they must be cross-examined: all that will achieve is it will put people off providing references. It’s a very strange approach to fair sentencing.”
Senior counsel Giollaíosa Ó Lideadha, who represents defendants in serious criminal cases, believes the Bill’s proposals are “unnecessary and unreasonable, even extreme”.
“The historic situation regarding character references or mitigation letters has been fluid and relaxed, and that flexibility is important.”
Improvements
There could be improvements, including a requirement that the prosecution get the references in advance of the sentence hearing rather than, as is sometimes the case, on the day itself, he says. Delays are often simply a result of referees being busy but the late arrival of references is not ideal and the prosecution should have more time to consider them and whether to object to their being put forward, he says. The DPP sometimes asks for the references in advance, he adds.
‘The letters are hearsay, they are not evidence and requiring those who write them to be in court, and be prepared to be cross-examined, will mean many people just won’t provide them’
In most cases, character references are uncontroversial, according to Ó Lideadha. While he sees no difficulty in requiring notice to be given of the intention to provide references, he is concerned about the idea of introducing a statutory regime for permission to introduce references.
“The position now is that, if the prosecution has a difficulty with a letter, they can object to that going in, but that rarely happens. The letters are hearsay, they are not evidence and requiring those who write them to be in court, and be prepared to be cross-examined, will mean many people just won’t provide them. Asking people to give up a lot of their time to hang around court is not reasonable. ”
Defence lawyers read references before they are submitted and, if they believe some of the matters are inappropriate, will advise the client that the letter should not be provided in that form, he says.
“Some things could not, and should not, be said and if those are not changed, the advice will be against using the letter. If letters containing inappropriate material are used, there can be a justified objection by other stakeholders.”
All of these issues can be addressed by having notice requirement for references but the proposed legislation goes beyond that, puts a “wholly unreasonable” burden on the defence as a matter of practicality, and will cause “all kinds of practical difficulties”, he says.
At the end of the day, the effect will be that it will put people off providing letters, according to Ó Lideadha. “This proposal is just wrong on so many levels.”
Ó Lideadha is particularly concerned that, if passed, the Bill may “skew” the criminal justice process. “At a sentencing hearing, there are two parties, the prosecution and the convicted person. To turn a sentencing hearing into a potential conflict between the victim and the convicted person is not in the interest of the public or the victim.”
