by Leah Farrell
Leah Farrell completed a masters degree in common law in University College Dublin in 2021. She also holds an undergraduate degree in social science from UCD and a masters degree in International Human Rights Law from NUIG. In this thought provoking article, Leah provides an insight into potential areas of reform in the available measures for vulnerable victims in Irish courts.
Introduction
This article acknowledges the limitations in the area of special measures for vulnerable victims and recommends two reforms that would aid in filling these gaps. The Criminal Evidence Act 1992 introduced vital support mechanisms for vulnerable victims with amendments made by the Criminal Justice (Victims of Crime) Act 2017 further strengthening these. Having said this, room for reform remains in respect of victim pre-trial awareness supports and the knowledge and behaviour of legal professionals in and outside the courtroom. This is often flagged by victims themselves, as well as those involved in the judicial process.
Reform (i)
One reform which could be appropriate moving forward would be the creation of an awareness campaign, highlighting the core provisions of the 2017 Act, in order to boost public knowledge surrounding the Act.[1] This could be initiated by the Department of Justice in tandem with statutory or voluntary bodies.[2] It could be distributed by the Irish media or through an online medium. The objective would be to ensure that anyone who becomes a victim of crime is aware of their rights under the legislation which exists in Ireland.[3] This is especially important for vulnerable victims in the case of sexual crimes, which can leave victims highly traumatized and unlikely to reach out for support or information.[4] Moreover, it creates a safety net for victims, should the system become daunting, complicated or where supports are not clearly outlined when the judicial process commences. It certainly appears beneficial to have individuals aware of the process and their rights before ever facing the criminal justice system.
This change would be a necessary first step preceding any other reforms, as without a victim knowing their rights and what supports are available to them in proceedings, they are likely to be unprepared, intimidated, and open to re-traumatization, regardless of any subsequent special measures. A victim being unaware of measures or their rights before criminal proceedings commence, undermines the victim-centered process. Special measures being introduced at the outset of proceedings, to an already traumatized individual is ineffective. If the public is aware of these rights and measures, they are more equipped should they ever encounter the criminal justice system. Importantly, this could encourage increased reporting in sexual crime cases as a victim would be aware of how proceedings unfold and the supports available to them throughout. In turn, they may be less averse to approaching the Gardai and beginning the process of prosecution. For example, in 2010, Canada demonstrated similar concerns and received similar reform recommendations. In response, the jurisdiction carried out an awareness campaign[5] relating to victims rights under the Canadian Victims Bill of Rights.[6] Although improvements have since been called for, this Bill, inter alia, gives victims a right to information on their case, the right to participate and convey their views in processes affecting their rights and the right to file a complaint if their rights are infringed.[7] The campaign circulated this information through accessible posters and informative YouTube videos online.[8]
Reform (ii)
An additional recommendation for reform stems from the acknowledgment that professionals in the criminal justice system dealing with victims of sexual crime would benefit from special training, in order to better understand a victim’s experience and needs, throughout criminal proceedings.[9] There has been extensive international literature on the specific difficulties encountered by vulnerable victims and children, when they are required to give evidence in the ‘conventional courtroom setting’, and during ‘standard trial procedures.’[10] The provision of training is a necessity to implement in Ireland’s criminal justice system, especially in light of the EU Victims’ Rights Directive.[11] This Directive sets minimum standards for EU member states in relation to victim protection, support and access to justice. It aims to ensure sufficient recognition, respect and compassionate treatment of victims of crime in member states.
As an example, due to a recommendation by the English Court of Appeal in R v Wills[12] the Judicial College of England and Wales issued the ‘Judicial College Checklist: Young Witness Cases’ in January 2012.[13] This sets out best practice for dealing with child witnesses. The questioning of vulnerable or young witnesses during examination-in-chief and cross-examination is one of many areas whereby training can be beneficial to legal professionals.[14] This type of training guideline could be used by those dealing with vulnerable witnesses in all stages of criminal proceedings in Ireland. Many have argued, that, at a minimum, special training should be given to all solicitors and barristers whose work involves interaction with victims of sexual crime at a minimum.[15]
It is appropriate to suggest that the Minister for Justice and Equality should appoint a committee. This committee would be tasked with reviewing and planning a special protection for vulnerable witnesses training programme for legal professionals.[16] The UK and Canada both currently have similar recommendations and training programmes. In the UK, the training programme involves an online course, virtual training and a reflection period, including exemplar films.[17] A booklet has also been produced in order to aid training.[18] Moreover, the Canadian Victims Bill of Rights has detailed the need for training for criminal justice system personnel to apply a victim-centered and trauma-informed approach.[19] Notably, however, there has been some criticism from the ombudsman about the implementation process.[20] Those involved in the implementation would have to ensure a focused and logistical approach. It appears these training programmes are becoming a unilateral reform in most jurisdictions and that it would serve Ireland’s criminal justice system and the victims who encounter it to follow suit.
Conclusion
Overall, it is clear that there is significant room for improvement in respect to special measures for vulnerable victims in Ireland. One could argue that a campaign is an adequate starting point in order to properly inform the Irish public about their rights and special measures available to them, should they ever encounter the justice system. Additionally, in the event of this, they will be more equipped to enquire about the supports they need and more familiar with this daunting process. Furthermore, it seems that it is an ever-growing necessity that all legal professionals, including those involved in the court process but outside of advocacy, should undergo proper vulnerable victim training. The implementation of these reforms is not a final solution, but two important steps in ensuring special measures for vulnerable victims in the Irish criminal justice system are in fact, victim-centered.
[1] Tom O’Malley, ‘Review Of Protections For Vulnerable Witnesses In The Investigation And Prosecution Of Sexual Offences’ (2020) para 2.32.
[2] ibid.
[3] Criminal Justice (Victims of Crime) Act 2017.
[4] O’Malley (n 7) para 2.32.
[5] Susan McDonald and Katie Scrim, ‘Canadians’ Awareness Of Victim Issues: A Benchmarking Study’ (2010) Department of Justice: Victims of Crime Research Digest.
[6] The Canadian Victims Bill of Rights, 2015.
[7] ibid.
[8] Quebec Association for Victim Advocacy, ‘Video Capsule on the Canadian Victims Bill of Rights’ <https://youtu.be/9algLqd7Q2Q> accessed 1 June 2021.
[9] O’Malley (n 7) para 10.1
[10] See Adrian Keane, “Towards a principled approach to the cross-examination of vulnerable witnesses” (2012) Crim. L.R. 407; L. Ellison, The Adversarial Process and the Vulnerable Witness (Oxford University Press, 2001).
[11] Directive 2012/29/EU of the European Parliament and of the Council [2012] OJ L 315, 14.11.2012, p. 57–73.
[12] R v Wills [2011] EWCA Crim. 1938; [2012] 1 Cr. App. R. 2 at 16.
[13] Courts and Tribunals Judiciary, ‘Judicial College Bench Checklist:Young Witness Cases’ (2012).
[14] O’Malley (n 7) para 10.4.
[15] ibid, para 10.15.
[16] ibid, para 10.18.
[17] The Law Society ‘Advocacy and the Vulnerable Training’, at https://events.lawsociety.org.uk/default.aspx?tabid=633
[18] Advocacy Training Council ‘Raising The Bar’ (2011).
[19] Canadian Victims Bill of Rights 2015, c 13 s 2.
[20] Office of Federal Ombudsman for Victims of Crime, ‘Progress Report: Canadian Victims Bill Of Rights’ (2020), Recommendation no. 10.
Sutherland Symposium 