Addressing vulnerability in Ireland’s criminal justice system: A survey of recent statutory developments
| Author | Alan Cusack |
| Published date | 01 July 2020 |
| Date | 01 July 2020 |
| DOI | http://doi.org/10.1177/1365712720922753 |
| Subject Matter | Articles |
Article
Addressing vulnerability in
Ireland’s criminal justice
system: A survey of recent
statutory developments
Alan Cusack
University of Limerick, Limerick, Ireland
Abstract
For over a quarter of century Ireland’s statutory special measures framework, as originally
enacted by the Criminal Evidence Act 1992, remained largely unchanged, falling beyond the
reformative gaze of successive Irish governments. 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 which promised to
reimagine the availability and diversity of Ireland’s store of statutory testimonial accom-
modations, namely the Criminal Law (Sexual Offences) Act 2017 and the Criminal Justice
(Victims of Crime) Act 2017. By interrogating these newly-commenced instruments in light of
the experience of crime victims with intellectual disabilities, this paper surveys the current
procedural landscape governing the treatment of vulnerable crime victims in Ireland and is
intended to go some way towards exposing the embedded evidential barriers which continue
to prejudice efforts aimed at securing their best evidence in court.
Keywords
adversarialism, criminal procedure, special measures, victims of crime, victims with intellectual
disabilities, vulnerable witnesses
Introduction
Over the course of the last three decades, Ireland’s criminal justice landscape has undergone something
of a ‘victim revolution’ (Sebba, 1997) as national policymakers have incrementally reconfigured the
formalities of the Irish criminal process in order to demonstrate an increased sensitivity for the needs and
concerns of crime victims.
1
As might be expected, victims of crime with intellectual disabilities have not
Corresponding author:
Alan Cusack, University of Limerick, Limerick V94 T9PX, Ireland.
E-mail: alan.cusack@ul.ie
1. On the rise of the victim in Ireland, specifically, see Kilcommins et al. (2018); Kilcommins and Moffett (2015: 379); Coen
(2006).
The International Journalof
Evidence & Proof
2020, Vol. 24(3) 280–306
ªThe Author(s) 2020
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DOI: 10.1177/1365712720922753
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been immune to the ameliorative effect of this inclusionary trend (Cusack, 2017a). Indeed as far back as
1992, the criminal justice pages of Ireland’s statute book have expressly recognised a series of special
testimonial accommodations for vulnerable witnesses which were designed specifically to temper the
hostile excesses and personal trauma as sociated with the formalities of Irela nd’s adversarial trial.
2
Accordingly, under the legislative bricolage which governed the delivery of evidence in Irish courts
for the best part of a quarter of a century, child witnesses could expect to benefit from at least some of the
following measures: (i) a presumption in favour of giving evidence via a live television link;
3
(ii) the
removal of wigs and gowns;
4
(iii) the use of intermediaries;
5
and (iv) the admission of video-recorded
evidence and sworn depositions in court.
6
By virtue of a tag provision—s. 19 of the Criminal Evidence
Act 1992—these measures were statutorily extended on an equal basis to adult witnesses with a ‘mental
handicap’.
7
A new chapter in this inclusionary tale commenced in May 2018 with the signing into law of
key provisions enshrined in the Criminal Law (Sexual Offences) Act 2017
8
and the Criminal
Justice (Victims of Crime) Act 2017.
9
In signalling a conscious departure from the legislative
inertia that had surrounded the operationalization of testimonial accommodations in Ireland since
the promulgation of the Criminal Evidence Act 1992, each of these instruments wrought significant
revisions to the contours of Ireland’s special measures landscape; a point emphasised by the
Minister for Justice and Equality on 4 June 2018 following his execution of the relevant enacting
legislation:
I believe that the new provisions will ensure that victims of crime, particularly those under the age of 18,
are protected during trials for serious offences by means of providing evidence from behind a screen,
preventing them from being directly cross-examined by the accused person, and allowing recorded
evidence to be used at trial. I’m also pleased that special measures including giving evidence via
video-link or from behind a screen have now been extended to all victims of crime and the use of an
intermediary or pre-recorded statement in the case of child victims will now be available to those victims.
(Department of Justice and Equality, 2018)
While, in view of the relatively outdated special measures machinery which preceded these revisions,
the Minister’s enthusiasm in proclaiming the ameliorative impact which these enactments will have on
2. See, Part III of the Criminal Evidence Act 1992. In reading the Criminal Evidence Bill 1992 during the Senate debates, Minister
of State for the Department of Justice, Willie O’Dea, declared: ‘Part III of the Bill makes it easier for young persons and other
vulnerable witnesses, such as those with mental handicap, to give evidence in cases involving violence or sexual abuse. Giving
evidence in court, in the presence of the accused, with all the formality associated with a trial, is an ordeal for most people but it
can be traumatic for witnesses in these particular cases and can result in prosecutions either not being taken or failing because
the witness has broken down.’ Senate Debates, 12 July 1992.
3. Criminal Evidence Act 1992, s. 13.
4. Criminal Evidence Act 1992, s. 13(3). This provision has since been deleted by s. 35 of the Criminal Law (Sexual Offences) Act
2017.
5. Criminal Evidence Act 1992, s. 14.
6. Criminal Evidence Act 1992. s. 16.
7. Criminal Evidence Act 1992, s. 19.
8. The dominant portion of the Criminal Law (Sexual Offences) Act 2017, entered into force on 27 March 2017 pursuant to the
Criminal Law (Sexual Offences) Act 2017 (Commencement) Order 2017 (S.I. No. 112 of 2017). The remaining provisions
contained within Part 6 of the Criminal Law (Sexual Offences) Act 2017, relating to Ireland’s special measures regime, entered
into force on 30 May 2018 force pursuant to Criminal Law (Sexual Offences) Act 2017 (Commencement) (No. 2) Order 2018
(S.I. No. 172 of 2018).
9. The dominant portion of the Criminal Justice (Victims of Crime) Act 2017 entered into force on 27 November 2017 pursuant to
the Criminal Justice (Victims of Crime) Act 2017 (Commencement) Order 2017 (S.I. No. 530 of 2017). Subject to some minor
regional exclusions, the remaining provisions of the Criminal Justice (Victims of Crime) Act 2017, relating predominantly to
special measures, entered into force on 30 May 2018 pursuant to the Criminal Justice (Victims of Crime) Act 2017 (Com-
mencement) Order 2018 (S.I. No. 173 of 2018).
Cusack 281
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