Sexual Offences
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Employing Technology to Assist Vulnerable Victims By Doireann Minford, SF Law and Political Science Editor’s Note: This article discusses sexual offences against vulnerable victims such as children and those with intellectual disabilities, which some readers may find disturbing. Behind the 2,986 sexual offences recorded in 2020 are hundreds of vulnerable victims, including children and adults with intellectual disabilities. For these victims in particular, the prosecution and conviction process can be especially long and arduous. The criminal justice system in England and Wales leverages technology to enhance access to justice for vulnerable victims, but it can fail in ensuring a witness’s evidence is properly heard by the court. I will advocate for the use of intermediaries, a legislated for yet under-utilised tool in the Irish Criminal Courts. Article 42A.1 of the Irish Constitution provides that the State must, by its laws, protect and vindicate the natural and imprescriptible rights of all children. Over the last 30 years, the Irish criminal justice system has moved towards establishing a more victim-centric justice system. The common law traditionally recognised children as unreliable witnesses. The UK decision in R v Wright and Ormerod (1987) affirmed the decision set out in R v Wallwork (1958) that a child would rarely satisfy the statutory competency requirements of a witness. These decisions reflect the traditional approach of the criminal justice system in refusing to recognise a witness’s inherent right to have their rights vindicated based on age and cognitive function. People who have intellectual disabilities are significantly overrepresented as victims of crime. For people with intellectual disabilities, limited fluency skills can present a barrier to reporting sexual abuse, while also impacting their ability to deliver oral testimony in court. However, As Hepner, Woodward, and Stewart observe in their study, when interviewed in a non-leading manner, using questions that are specifically open, people with intellectual disabilities can recall information better and deliver a more accurate account. In such cases, their evidence should not be discounted. In cases such as People (DPP) v Molloy (1995), the Irish courts have found that a corroborative warning may need to be given to the jury in respect of the testimony of a witness suffering from a mental disability. The Criminal Justice (Victims of Crime) Act 2017 (the 2017 Act) gave effect to Directive 2012/29/EU of the European Parliament and the Council, establishing minimum standards on the rights, support, and protection of victims of crime and conferring special procedural protections on vulnerable victims. Under section 19(2) (c), those who have been identified as requiring specific protection needs can avail of the measures under Part III of the Criminal Evidence Act 1992 (the 1992 Act), enabling the victim to give evidence through a live television link. This provision liberalised section 13(1)(a) of the 1992 Act, which stipulated that this person should be under the age of 17, or apply for leave of the court to give evidence through a video link under section 13(1) (b). By contrast, the 2017 Act contains a mandatory presumption in favour of giving evidence via video-link for all child victims of certain specified offences under both the Child Trafficking and Pornography Act 1998 and the Criminal Justice (Human Trafficking) Act 2008, and inchoate versions of any of these offences. The use of live television links has been a useful resource to protect vulnerable victims from being further victimised as well as not subjecting them to the stress of undergoing the traditional adversarial trial process. Yet, there have been consistent reports of the video-link dropping during examinations. The courts require investment to ensure the latest technology is made available to victims, including high-resolution cameras with secure hardware and updated software at a minimum. Cases using video-link evidence are also often
