Recognising And Responding to Vulnerability: Securing Access to Justice for Vulnerable Accused Persons in Ireland

AuthorGautam Gulati - Alan Cusack - Brendan D. Kelly - Colum P. Dunne - Shane Kilcommins
PositionMD, School of Law, University of Limerick, Ireland and School of Medicine, University of Limerick, Ireland - PhD, School of Law, University of Limerick, Ireland - PhD, Trinity College, Dublin, Ireland - PhD - PhD, School of Law, University of Limerick, Ireland
[2022] Irish Judicial Studies Journal Vol 6(2)
Authors: Professor Gautam Gulati MD, School of Law, University of Limerick, Ireland and School of
Medicine, University of Limerick, Ireland; Dr Alan Cusack PhD, School of Law, University of
Limerick, Ireland; Professor Brendan D Kelly PhD, Trinity College, Dublin, Ireland; Professor Colum P
Dunne PhD; School of Medicine, University of Limerick, Ireland; and Professor Shane Kilcommins PhD,
School of Law, University of Limerick, Ireland
Abstract: This paper outlines international obligations and domestic safeguards that shape the treatment of
suspects with intellectual disabilities in Ireland. In recognising that the meaningful operationalisation of
these safeguards, and, by extension, the realisation of Ireland’s international human rights obligations, is
often contingent upon securing a correct, and early, identification of a suspect’s disability, the paper places an
emphasis on the unmet need for dialogue, training and enculturation at all frontiers of the Irish criminal
process. Against a backdrop of heightening political, media and legal debate concerning the focus, content
and reach of the terms of the draft An Garda Síochána (Powers) Bill, insights are raised to offer
policymakers a blueprint for legislative and procedural reform that promises to align Irish criminal
procedure with the human rights exigencies mandated under international conventions.
Whilst there has been a ‘victims revolution’ in respect of the rights of vulnerable victims in
Irish legislation, there remains a discrepancy in the pace of legislation to support the rights
of accused persons.
The Criminal Justice (Victims of Crime) Act 2017 & Criminal Law
(Sexual Offences Act) 2017 have been important pieces of legislative reform whereby
specific protections and measures are offered to vulnerable victims of crime.
The pace of
legislative reform in respect of vulnerable suspects, such as those with disabilities, has to
date had less momentum.
This momentum lag is somewhat surprising, and operates in
contrast to the orthodox evolution of the Irish criminal process. The modern
understanding of resolving a crime conflict dating from the mid nineteenth century
rested on a strong State; prescriptive laws; specialised and professionalised investigation,
prosecution and enforcement; a methodological, objective and reasoned mode of inquiry;
and a weak accused scaffolded by procedural and substantive rights that upheld ‘le principe
de l'égalité des armes’. It is only recently that victims and complainants of crime have been
recognised as a ‘community of identity’ with a juridical status and discourse has further
progressed with an emphasis on strengthening their rights, with recognition of the
Alan Cusack, ‘Addressing vulnerability in Ireland’s criminal justice system: A survey of recent statutory
developments’ (2020) 24(3) International Journal of Evidence and Proof 280-306.
Alan Cusack (forthcoming) ‘From Special Measures to Separate Legal Representation: Charting Shifts in the
Treatment of Victims of Crime with Intellectual Disabilities in Ireland’ 43(1) Dublin University Law Journal;
Alan Cu sack, ‘Beyond Special Measures: Challenging Traditional Constructions of Competence and Cross-
Examination for Vulnerable Witnesses in Ireland’ (2021) 4(2) Irish Judicial Studies Journal 98 -115; and Liz
Campbell and others, Criminal Law in Ireland: Cases and Commentary (2nd edn, Clarus Press 2021).
Alan Cusack, ‘An Overview of the Legal Position of Vulnerable Suspects and Defendants in Ireland’ Irish
Criminal Justice (Agencies Annual Conference, Dublin, 4 June 2021).

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