Employing Technology to Assist Vulnerable Victims

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

transferred to Dublin, lengthening the trial process. Ireland must adapt to this to serve witnesses in a timely manner. In this regard, the provision of live television link technology should be available in all courtrooms across the country.

Section 36 of the 2017 Act introduced the explicit right to use screens in the courtrooms when child witnesses are giving their evidence. Video evidence is also admitted on a discretionary basis under section 16(1)(b)(ii) of the 1992 Criminal Evidence Act. In People (DPP) v XY (2010) the Central Criminal Court allowed a DVD recording of the pre-trial interview to be admitted as evidence-in-chief, while the Court of Appeal in DPP v TV (2017) displayed further enthusiasm regarding the admission of video evidence. Indeed, the English and Welsh courts routinely use pre-recorded evidence-in-chief. A multi-agency group of experts, convened by Rape Crisis Network Ireland (RCNI) have called for further liberalisation of the legislation and recommended that pre-recorded cross-examination should be used when hearing evidence from vulnerable victims. Introducing a barrier between the victim and the courtroom is necessary to ensure a victim does not feel under pressure during examination.

While video-links and screens can help protect the accuracy of evidence and mitigate the stress of a trial for vulnerable witnesses, it is submitted that technology can only go so far.

Video-link technology does little by way of enabling vulnerable witnesses to give clear evidence in a manner they are comfortable with. Rather, intermediaries are essential to facilitating a fair trial and are rarely used by the Irish courts. Intermediaries do not mediate answers to questions, but the questions themselves. The intermediary ensures a vulnerable victim is comfortable with the trial process. He or she also assesses the extent to which the witness is able to understand a question and if not, will explain the question to them. As it is used in conjunction with a video-link, witnesses are given the opportunity to give fair and accurate evidence of their experience. For victims with intellectual disabilities, questions should be short and succinct, phrased in everyday language and be open-ended. An intermediary, not a video-link, can facilitate this within the Irish courts.

Courts in the UK consistently use intermediaries to assist vulnerable witnesses. Section 16(1) of the Youth Justice and Criminal Evidence Act 1999 (the 1999 Act) governs the use of special measures in criminal proceedings involving witnesses who are particularly vulnerable on grounds of age or incapacity. Section 29 provides for the use of intermediaries, while Section 104 of the Coroners and Justice Act 2009 stipulates the role of the intermediary in vulnerable witness examination. The Witness Intermediary Scheme provides registered intermediaries in courts throughout England and Wales. Intermediaries can assess the barriers that witnesses with communication difficulties may encounter in delivering oral evidence and are trained to assist these witnesses in examination. Their testimony is valued at all stages in the court, with registered intermediaries assigned based on speciality, availability and geographical location. Due to the successful implementation of the scheme, the academic response has been positive overall. In this regard vulnerable witnesses in the UK are enabled by the courts to give their best evidence.

While intermediaries were originally legislated for in Ireland in the 1992 Act, their assistance was only invoked by the courts for the first time in 2016. In our criminal justice system, the accused’s constitutional right to a fair trial co-exists with the State’s obligation to vindicate the personal rights of those who have been victimised. Unfortunately, legislation surrounding the use of intermediaries remains limited as to prescribing them detailed instructions as to what their role is and, therefore, the resources given to the use of them are limited. To assure the full vindication of vulnerable victims’ rights, an intermediary could be given an advisory role in the pre-trial process, informing the court of the accommodations needed by the particular witness. However, cohesive legislation and statutory guidance are required regarding the role of an intermediary before the scope of the intermediary’s role may be expanded. In its 2018 Report, Hearing Every Voice, Rape Crisis Network

Ireland encouraged a concise purpose as well as rules to be given to intermediaries to ensure their correct use. Ultimately, they provide a favourable alternative to pre-recorded evidence being given in order to facilitate a balanced cross-examination and ensure a fair trial.

Technology is a key component of any modern criminal justice system. In Ireland, there is a pressing need for technology to be updated to ensure the smooth running of criminal proceedings. Unfortunately, for the most vulnerable victims in society, technology alone cannot safeguard their right to be heard in proceedings that affect them. A better approach would be to employ the use of intermediaries in conjunction with video-link technology to ensure vulnerable victims’ stories can be told and their evidence is not unfairly disregarded due to prejudice.