Pre-recorded Direct Evidence and Cross-Examinations Should Be Alternatives to Live Evidence for Vulnerable Witnesses

Protections for Vulnerable Witnesses Like Rape Victims Must Start Well Before the Court Room

In a timely report, a Multi-Agency Group of experts, convened by Rape Crisis Network Ireland (RCNI), has recommended that the use of pre-recorded evidence should be increased and that pre-recorded cross-examination should be piloted in Irish courts in order to better protect and support vulnerable witnesses, as has been done successfully in England and Wales.

“Our criminal justice system is based on the premise that face-to-face live evidence at trial is the best evidence which can be obtained,” said Caroline Counihan BL, RCNI’s Legal Director. “Modern psychological research does not support this conclusion, particularly since the advent of high resolution pre-recorded video and video-link solutions.”

“Pre-recording a Garda statement soon after a complaint has been made maximises the potential of the witness to recall, fully and accurately, what happened, to give his or her best evidence and to help minimise the risk of secondary traumatisation by reducing exposure to the adversarial criminal justice process itself,” she said. “In our view, it is time that the limitations of the live evidence only approach – often months or years after the alleged crime took place – were addressed.”

The Vulnerable Witnesses Multi-Agency Group was convened by Caroline Counihan and includes senior representatives from the Bar, Academia, An Garda Síochána, the Courts Services as well as a number of NGOs. It has been working for over a year on the report.
It strongly recommends that pre-trial hearings should be placed on a statutory footing and that they should be the primary means through which special protection needs are determined.

The Group makes 33 recommendations in all, across eight headings in the report – Hearing Every Voice – Towards a new Strategy on Vulnerable Witnesses in Legal Proceedings.

RCNI welcomes commitments made by the Minister to review all aspects of sexual assault cases in the wake of the recent Belfast rape trial, and it looks forward to working with him to ensure that vulnerable witnesses are given the best protections possible, without endangering the right to a fair trial of the defendant.

“With the Belfast trial we saw how difficult the system can be on the witnesses,” Cliona Saidlear, said Director of RCNI. “We know that we can make it better and that vulnerable witnesses can have a less traumatising experience in giving vital evidence.”

“Stronger, individually tailored protections will help ensure the best evidence is obtained, benefitting the criminal justice system as a whole,” she continued. “The rights of the witness and the defendant within the legal system are not always or necessarily in direct competition with each other. The system of giving live evidence, often under arduous cross-examination, does not work well for many vulnerable witnesses because their voices are not heard as they should be. It does not work for the whole community either because it means that fewer perpetrators are held accountable.”

The Multi-Agency Group has recommended that if pre-recorded statements and examinations are to become a fair and effective alternative for vulnerable witnesses, it is vital that their introduction is underpinned by new statutory provisions regulating pre-trial hearings and provisions governing disclosure.

The group has also recommended that continuing professional development training programmes on issues relevant to vulnerable witnesses and accused must be made available and resourced adequately, in particular for judges, legal professionals and members of An Garda Síochána. It said that it welcomed advanced advocacy courses already in place for barristers which examine such topics as how to cross-examine without repetition, without using obscure language and “without hectoring, lecturing, demeaning or otherwise badgering the witness”.

Within their recommendations, the Multi-Agency Group takes into account all witnesses in need of special support and protection. These include children, people with an intellectual disability or mental health difficulty, victims of sexual or domestic violence, and those who may not necessarily be identified as needing the extra protection of special measures under current legislation.

The conclusions and recommendations also acknowledge some very positive developments in recent times in the protection of vulnerable witnesses, on the part of judges, legal professionals and An Garda Síochána as well as on the part of Government.


Not Just in the Court Room – Key Recommendations from Reporting to Trial

  • The use of pre-recorded evidence and the giving of evidence by video-link should be increased.
  • Pre-recorded cross-examination should be piloted.
  • Pre-trial hearings should be placed on a statutory footing.
  • Additional protections or “special measures” should be available to vulnerable accused persons as well as vulnerable victims and other witnesses;
  • With regard to child witnesses, specialist approaches from other jurisdictions should be further explored;
  • Professional training on facilitating vulnerable witnesses should be enhanced and funded.
  • The complicated issue of delay should be addressed so that delays between initial complaints and any hearings are reduced as far as possible
  • The use of professional intermediaries qualified to assist the court should be examined further; existing statutory provisions in this area should be extended to allow for answers as well as questions to be communicated via an intermediary.
  • A new Vulnerable Witnesses in Legal Proceedings Initiative should be established and led by Government, which is aimed at making the criminal justice system as accessible as possible for all vulnerable witnesses

Members of the Vulnerable Witnesses Multi-Agency Working Group

Caroline Counihan, RCNI (Group Co-Ordinator), Rape Crisis Network Ireland
Mary Rose Gearty SC, Council of the Bar of Ireland
Joan O’Mahony, Solicitor
Miriam Delahunt BL, PhD
Alan Cusack BCL, LLM, PhD, Lecturer in Law, University of Limerick
Conor Hanly BA, LLB, LLM (NUI), LLM, JSD (Yale), Lecturer in Law, NUIG Galway School of Law
Inspector Michael Lynch, An Garda Síochána
Eamonn Doherty, Courts Service
Suzy Byrne, National Advocacy Service
Eve Farrelly, Cari
Noeline Blackwell, Dublin Rape Crisis Centre
Caitriona Gleeson, SAFE Ireland
Yvonne O’Sullivan, Inclusion Ireland