The Criminal Trial of Persons with Disabilities

Introduction

The current criminal justice system in Ireland perpetuates inequality and infringes upon both the dignity and rights of persons with disabilities. It is often inaccessible for those seeking justice, and challenging for both those undergoing the criminal trial process and those within the prison system. This chapter will outline how a lack of support for persons with disabilities permeates all levels of the criminal justice system and will address specific areas which require reform.

Firstly, the disadvantages persons with disabilities face in the criminal trial process will be examined, focusing on the barriers in the criminal justice system, the absence of data on crime, the inconsistency in legislation and policy, and the need to provide intermediaries and interpreters. Secondly, the lack of support provided for persons with disabilities within the Irish Prison Service and the Irish Probation Service will be addressed.

I. The Criminal Trial of Persons with Disabilities Barriers in the Criminal Justice System The criminal process, from the initial report of a crime to the criminal trial and the subsequent aftermath of said trial, presents extensive barriers and complications for persons with disabilities. Barriers challenging access to justice, clarity of procedure, and practical adjustments throughout the criminal trial process produce immense disadvantages that can be deciding factors in their legal proceedings. A common view conveyed by literature on this matter is that various common law justice systems such as Ireland, the United Kingdom, the United States, Australia, and New Zealand are founded on an adversarial process, in which the principle of orality is essential.

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Thus, with a lack of necessary accommodations and a strong reliance on vocal communication, persons with disabilities have been faced with the difficulty of presenting their arguments or accounts during trial. Furthermore, the National Disability Association highlights three specific categories of barriers that hinder persons with disabilities embedded throughout the Criminal Justice System: structural, procedural, and attitudinal barriers.

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196 National Authority and National Authority, 'Access To Justice For People With Disabilities As Victims Of Crime In Ireland | The National Disability Authority' (Nda.ie, 2021) <https://nda.ie/Publications/Justice-andSafeguarding/Access-to-Justice/Access-to-Justice-for-People-with-Disabilities-as-Victims-of-Crime-inIreland.html> accessed 22 November 2021. 197 National Authority and National Authority, 'Access To Justice For People With Disabilities As Victims Of Crime In Ireland | The National Disability Authority' (Nda.ie, 2021) <https://nda.ie/Publications/Justice-and-

Firstly, structural barriers entail the interrelationship between the prison and probation services, arrest by An Garda Síochána, and the courts, and moreover who within this system takes responsibility for supporting and assisting victims with disabilities.198 Secondly, there are procedural barriers, which as aforementioned, encompass the complexity and enormity of the legal system in general, but especially when not effectively conveyed to persons with disabilities. Lastly, and as suggested by international commentators and their research, the most crucial barriers being faced are attitude barriers. These can have a major impact on the criminal trial process for persons with disabilities in cases where barristers and judges formulate assumptions and opinions about victims as either incompetent or incredible in instances of witness statements or their own trial proceedings.

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These assumptions can make the process as a whole feel that much more intimidating and can project a sense of invisibility or condescension onto victims.

Absence of Data on Crime Another key aspect that negatively affects the criminal trial process and access to justice is the absence of data on the frequency or categories of crimes committed against people with disabilities within the nation, inadequate statistics to assess the experiences of people with disabilities and how they have been affected by a crime, and little research to evaluate whether the current supports are working to substantively improve access to justice for people with disabilities.

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Coupled with this absence of data are the gaps in main sources of information on crime, such as the Gardaí Public Attitudes Survey, and Crime and Victimisation module on the Quarterly National Household Survey (QNHS), to provide a breakdown of figures based on disability.

201 Without this data, it is unlikely that any significant improvements can be made

Safeguarding/Access-to-Justice/Access-to-Justice-for-People-with-Disabilities-as-Victims-of-Crime-inIreland.html> accessed 22 November 2021. 198 National Authority and National Authority, 'Access To Justice For People With Disabilities As Victims Of Crime In Ireland | The National Disability Authority' (Nda.ie, 2021) <https://nda.ie/Publications/Justice-andSafeguarding/Access-to-Justice/Access-to-Justice-for-People-with-Disabilities-as-Victims-of-Crime-inIreland.html> accessed 22 November 2021. 199 National Authority and National Authority, 'Access To Justice For People With Disabilities As Victims Of Crime In Ireland | The National Disability Authority' (Nda.ie, 2021) <https://nda.ie/Publications/Justice-andSafeguarding/Access-to-Justice/Access-to-Justice-for-People-with-Disabilities-as-Victims-of-Crime-inIreland.html> accessed 22 November 2021. 200 Claire Edwards, Gillian Harold and Shane Kilcommins, 'Access To Justice For People With Disabilities As Victims Of Crime In Ireland' (Nda.ie, 2012) <https://nda.ie/nda-files/access-to-justice-for-people-withdisabilities-as-victims-of-crime-in-ireland1.pdf> accessed 20 November 2021. 201 Claire Edwards, Gillian Harold and Shane Kilcommins, 'Access To Justice For People With Disabilities As Victims Of Crime In Ireland' (Nda.ie, 2012) <https://nda.ie/nda-files/access-to-justice-for-people-withdisabilities-as-victims-of-crime-in-ireland1.pdf> accessed 20 November 2021.

to the system, further perpetuating the injustice and inaccessibility inflicted upon persons with disabilities.

Inconsistency in Legislation and Policy A fundamental component in the treatment of vulnerable witnesses and suspects throughout the criminal trial process is rooted in existing legislation and policies. The confusion and incongruence in current statutes provide another set of barriers to people with disabilities. They are confronted with these barriers in various contexts, such as under the criminal law, legislation in relation to their capacity to make decisions, and legislation that puts in place projections for people with disabilities.

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While the criminal law overarchingly intends to protect all citizens within the State in the same way, developments in case law have placed an emphasis on the need for additional protective measures for people with disabilities. A prime example of this is Section 5 of the Criminal Law (Sexual Offences) Act 1993.

203 There is also the Criminal Evidence Act 1992,204

implemented to establish specific measures for vulnerable witnesses including access to intermediaries during trial.

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Additionally, there are pieces of legislation that attempt to make information available, justice accessible, and legal proceedings fairer such as the Disability Act 2005, which obliges public service providers such as an Garda Síochána to ensure greater accessibility to resources and locations.

206 However, there are still other acts such as the Lunacy Regulation

(Ireland) Act 1871,207

which are not only derogatory in nature but which also fail to address ongoing issues facing people with disabilities. Ultimately, steps have been taken to address these issues through legislation and policy, but many more improvements and steps must be taken to create a more accessible and equal justice system.

Provision of Interpreters & Intermediaries

202 Claire Edwards, Gillian Harold and Shane Kilcommins, 'Access To Justice For People With Disabilities As Victims Of Crime In Ireland' (Nda.ie, 2012) <https://nda.ie/nda-files/access-to-justice-for-people-withdisabilities-as-victims-of-crime-in-ireland1.pdf> accessed 20 November 2021. 203 Criminal Law Sexual Offences Act 1993, s 5(1). 204 Criminal Evidence Act 1992. 205 Claire Edwards, Gillian Harold and Shane Kilcommins, 'Access To Justice For People With Disabilities As Victims Of Crime In Ireland' (Nda.ie, 2012) <https://nda.ie/nda-files/access-to-justice-for-people-withdisabilities-as-victims-of-crime-in-ireland1.pdf> accessed 20 November 2021. 206 The Disability Act 2005, s 27. 207 Lunacy Regulation (Ireland) Act 1871.