Beyond Special Measures: challenging traditional constructions of competence and cross-examination for vulnerable witnesses in Ireland

• Author: Alan Cusack
• Position: Lecturer in Law, University of Limerick
• Pages: 98-115

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[2020] Irish Judicial Studies Journal Vol 4(2)

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BEYOND SPECIAL MEASURES:

CHALLENGING TRADITIONAL CONSTRUCTIONS OF

COMPETENCE AND CROSS-EXAMINATION FOR

VULNERABLE WITNESSES IN IRELAND

Abstract: Since 1992, Ireland’s adversarial criminal process has recognised a series of statutory special

measures which, when invoked, operate to shield vulnerable witnesses from an accused in court while at the

same time continuing to subject them to live adversarial examination. The enduring subscription by Irish

policymakers to these courtroom accommodations was recently confirmed in the reforms visited upon Ireland’s

criminal trial by the Criminal Law (Sexual Offences) Act 2017 and the Criminal Justice (Victims of

Crime) Act 2017; both of which wrought significant revisions to the contours of Ireland’s special measures

framework. In the context of these recent legislative interventions, this paper considers the limitations of this

modest reformative approach. By demonstrati ng, in particular, the outstanding exclusionary impact which

traditional constructions of witness competency and cross-examination can have on vulnerable court users, the

paper presents the recent legislative interventions not only as a missed opportunity to challenge ingrained

procedural practices, but also to look beyond the formal parameters of Ireland adversarial trial, for more

imaginative solutions to address the invisible status of victims of crime with intellectual disabilities within the

Irish criminal process.

Author: Dr Alan Cusack, Lecturer in Law, University of Limerick

Introduction

The contours of Ireland’s criminal justice system have undergone significant revision in

recent decades in order to demonstrate an increased sensitivity to the needs and concerns of

victims of crime. The promulgation, for instance, of the non-statutory Victims' Charter,

1

the

recognition of a victim's limited right to separate legal representation,

2

and the introduction

of Victim Impact Statements at sentencing,

3

are all emblematic of a concerted political and

legal effort, not only to foster greater support for crime victims at all stages of proceedings,

but also to actively accommodate their increased participation in the criminal process itself.

This emergent momentum towards securing the increased juridification of victims’ rights in

Ireland arguably reached its high-water mark in January 2019 with the commencement of the

Domestic Violence Act 2018; a development which, of itself, took place in the shadow of

the implementation in May 2018 of two further victim-focused legislative interventions,

namely the Criminal Law (Sexual Offences) Act 2017 and the Criminal Justice (Victims of

Crime) Act 2017. In cherishing a triangulated vision of a fair trial – which, at once, recognises

the interests of the crime victim, the accused and the State in the criminal dispute – these

recent legislative developments are highly significant in the sense of revealing a rare

willingness by Irish policymakers to reappraise some of the mainstream procedural

formalities which lie at the heart of Ireland’s adversarial criminal justice tradition.

1

Department of Justice and Law Reform, Victims Charter and Guide to the Criminal Justice System (Victims of Crime

Office, Department of Justice and Law Reform 2010).

2

S 4A of the Criminal Law (Rape) Act 1981, as inserted by s 34 of the Sex Offenders Act 2001, as amended by

s 3 of the Criminal Law (Sexual Offences) (Amendment) Act 2007, and by s 6(2) the Crim inal Law (Sexual

Offences) Act 2006.

3

S 5 of the Criminal Justice Act 1993, as amended by s 4 of the Criminal Procedure Act 2010.

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At the frontier of this ‘victim revolution’ has been Ireland’s special measures framework.

4

At

the time of their statutory advent in 1992, the recognition of special measures on a statutory

basis represented a significant departure from established trial practice in Ireland.

5

The

genesis for this departure was, in effect, attributable to two landmark reports published by

the Law Reform Commission in 1990 which explicitly drew political and legal attention to

the heightened barriers that traditional adversarial courtroom procedures posed for

vulnerable witnesses in Ireland.

6

The resulting suite of special testimonial accommodations

ushered in by Part III of the Criminal Evidence Act 1992 was therefore of significant

reformative importance at the time, not only in the symbolic sense of addressing the

structural and cultural invisibility of members of this marginalised victim constituency, but

also in the forensic sense of facilitating access to their best evidence in Irish courtrooms for

the first time.

7

And yet, notwithstanding the patent advantages associated with this liberal legislative exercise

in 1992, the statutory introduction of special measures was proceeded by a period of distinct

legislative dormancy as successive governments resisted calls to revise and update the suite

of testimonial accommodations available to vulnerable witnesses within Ireland's criminal

justice system.

8

This period of political inertia, however, came to an abrupt end in 2017, when

Irish policymakers, motivated by developments at a European Union level, introduced two

landmark legislative instruments, namely the Criminal Law (Sexual Offences) Act 2017 and

the Criminal Justice (Victims of Crime) Act 2017. Each of these instruments wrought

significant revisions to the contours of Ireland’s special measures landscape serving at once

to both augment the armoury of available testimonial supports and expand the caste of

witnesses eligible to benefit from these measures within Irish courtrooms.

Against the backdrop of such recent concentrated legislative activism in this area, this paper

assesses the true extent to which victims of crime with intellectual disabilities can be said,

through these recent reforms, to have enjoyed an equal share in the benefits of the wider

victims’ movement which has taken hold in Ireland in recent years.

9

By interrogating, in

particular, the reforms visited upon Ireland’s special measures landscape since 2017, the

4

Leslie Sebba, 'Will the 'Victim Revolution' Trigger a Reorientation of the Criminal Justice System?' (1997)

Israel Law Review (1) 379.

5

For a detailed review of Ireland’s special measures architecture, see Alan Cusack, ‘Addressing Vulnerability in

Ireland’s Criminal Justice System: A Survey of Recent Statutory Developments’ (2020) 24(3) Inter national

Journal of Evidence and Proof 280.

6

See Law Reform Commission, Report on Sexual Offences Against the Mentally Handicapped (LRC 33-1990) 587. See

also, Law Reform Commission, Report on Child Sexual Abuse (LRC 32-1990).

7

For an account of the ‘highly significant’ implications of the evolution of special measures, see Ray Byrne and

William Binchy, Annual Review of Irish Law (Round Hall 1992) 263.

8

On this trend see, Alan Cusack, 'Victims of Crime with Intellectual Disabilities and Ireland's Adversarial Trial:

Some Ontological, Procedural and Attitudinal Concerns' (2017) 68(4) Northern Irela nd Legal Quarterly 433;

Miriam Delahunt, Issues in Respect of Support Measures for Witnesses with an Intellectual Disability in the

Irish Criminal Justice System (2015) 5(1) Irish Journal of Legal Studies; and Shane Kilcommins, Clare Edwards

and Tina O'Sullivan, An International Review of Legal Provisions and Supports for People with Disabilities as Victims of

Crime (Irish Council for Civil Liberties 2013).

9

On the rise of the victim in Ireland, generally, see Shane Kilcommins, Susan Leahy, Kathleen Moore Wal sh

and Eimear Spain, The Victim in the Irish Criminal Process (Manchester University Press 2018); Liz Campbell,

Shane Kilcommins, Catherine O’Sullivan and Alan Cusack, Criminal Law in Ireland (2nd edn, Clarus Press 2020);

Shane Kilcommins and Luke Moffett, ‘The Inclusion and Juridification of Victi ms on the Isl and of Ireland’ in

Deirdre Healy, Claire Hamilton, Yvonne Daly, and Miche lle Butler (eds), Routledge Handbook of Irish Criminology

(Routledge 2015) 379; Rebecca Coen, ‘The Rise of the Victim- A Path to Punitiveness?’ (2006) 3 Irish Criminal

Law Journal 10.