Alignment of the Irish legal system and Article 13.1 of the CRPD for witnesses with communication difficulties

Abstract

Irish and international legal reform resulting from the Convention on the Rights of Persons with Disabilities [CRPD] has primarily focussed on Article 12, the right to exercise legal capacity. Article 13, which declares the right to access justice and the right to access procedural accommodations for all with disabilities, is often neglected. Specifically, research has not sufficiently explored the accommodations needed by witnesses with communication difficulties to testify in the courtroom. This study brings this aspect of Article 13 into focus by exploring the views of Irish legal professionals and disability advocates regarding existing and potential further accommodations for witnesses with communication diffiuclties in Irish criminal proceedings. By comparing and contrasting contributions, a series of conflicting perspectives between the legal profession and disability community are revealed. As successful implementation of Article 13 requires collaboration between both groups, this study concludes that these conflicts will need to be acknowledged and addressed in order for reform of courtroom accommodations to succeed.

Intellectual disabilities and offending behaviour: the awareness and concerns of the police, district attorneys and judges

“…In practice, it signals a move away from disabling guardianship arrangements to supported decision-making processes and enables those with disabilities to become participants in legal decisions about their own affairs. The Article has been described as “the beating heart of the Convention” and the issue of legal capacity has gained the attention of legislative reformers (O’Leary and Feely, 2018). The complexity of bringing domestic legislative frameworks into conformity with Article 12 of the CRPD is obvious, as the concept of legal capacity is intertwined in so many aspects of domestic legal systems (Arstein-Kerslake and Flynn, 2016).…”

“…In comparison to Article 12, Article 13 has received little attention. Article 13 outlines the responsibility of the parties to ensure effective access to justice for persons with disabilities on an equal basis with others (Chan et al , 2012; O’Leary and Feely, 2018).…”

“…Through their contributions, participants described numerous conflicts that exist between the justice system and the aims of the Convention. Conflicting perspectives between the legal system and the CRPD have been presented in four dimensions (O’Leary and Feely, 2018): the legal system is described as inflexible, which is in conflict with the flexibility needed for individual responses to disability; the legal system is concerned with objectivity, in contrast to a more interpretative nature of the CRPD; while the CRPD aims to empower those with disabilities, the legal system errs on the side of protection of perceived vulnerability; and the legal sphere feels the provision of courtroom accommodations is an additional service that should only occur in the event that sufficient resources are available in the legal sphere. However, the CRPD views these accommodations as a right, and they therefore should be as part of basic legal services.…”

Transformative equality: Court accommodations for South African citizens with severe communication disabilities

“…In countries such as England, Wales, Northern Ireland and Scotland, witnesses with communication difficulties are permitted to use both aided and unaided forms of AAC to support their testimony (O'Leary & Feely 2018). The South African court system needs to formally recognise AAC as a form of communication and giving testimony for witnesses with communication disabilities, and provided that the court procedures and rules of evidence are not undermined, this form of accommodation should be allowed in court (Flynn 2016).…”

Participation in Courts and Tribunals

“…Professionals in India are said to be exploring the use of the English model of the intermediary (Shukla, 2018), although the applicable guidelines for a vulnerable witness communication facilitator are more akin to the South African model where the intermediary relays the questions: the respective counsels for the parties shall pose questions to the vulnerable witness only through the facilitator, either in the words used by counsel or, if the vulnerable witness is not likely to understand the same, in words or by such mode as is comprehensible to the vulnerable witness and which convey the meaning intended by counsel. (Delhi High Court, The Republic of Ireland has legislation which allows for the use of an intermediary, but it is 'seldom used' (O'Leary and Feely, 2018). In at least one criminal trial in the Republic of Ireland in 2016, the services of an English intermediary were used (Gallagher, 2016).…”