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

AuthorAlan Cusack
PositionLecturer in Law, University of Limerick
[2020] Irish Judicial Studies Journal Vol 4(2)
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
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,
recognition of a victim's limited right to separate legal representation,
and the introduction
of Victim Impact Statements at sentencing,
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.
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).
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.
S 5 of the Criminal Justice Act 1993, as amended by s 4 of the Criminal Procedure Act 2010.
[2020] Irish Judicial Studies Journal Vol 4(2)
At the frontier of this ‘victim revolution’ has been Ireland’s special measures framework.
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.
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.
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.
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.
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.
By interrogating, in
particular, the reforms visited upon Ireland’s special measures landscape since 2017, the
Leslie Sebba, 'Will the 'Victim Revolution' Trigger a Reorientation of the Criminal Justice System?' (1997)
Israel Law Review (1) 379.
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.
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).
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.
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).
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.

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