Ireland
Following the O’Malley Report; A Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences in 2020 and the subsequent Supporting A Victim’s Journey: A Plan to Help Victims and Vulnerable Witnesses in Sexual Violence Cases, Ireland’s Department of Justice decided they needed to develop an intermediary scheme. Around the same time, other stakeholders such as Ireland’s National Disability Authority were also thinking about intermediaries and contributing recommendations about what an intermediary scheme could offer.
From the beginning, the Department of Justice knew they wanted the training programme for intermediaries to be accredited so they called for expressions of interest from tertiary education providers. They also decided they only wanted to recruit the intermediary workforce from professions such as speech and language therapy, occupational therapy, social work and psychology. The University of Limerick’s School of Law and School of Allied Health’s combined submission to develop an intermediary training programme was successful, and they are currently training their first cohort of recruits.
As Ireland is in the early stages of establishing its intermediary scheme’s, many aspects of the scheme are still being explored and discussed to ensure the scheme is robust and fit-for-purpose. For example, it is unclear what Ireland’s intermediaries will be called. The relevant legislation refers to intermediaries whilst the O’Malley report refers to registered intermediaries (RIs). Similarly, it is evident the Department of Justice wants its intermediary scheme to be registered but there has been no decision about who will hold that register as yet.
The Department of Justice has been consulting with key stakeholders and is currently finalising the scope of practice for the intermediary role, guidance for judges around when to appoint intermediaries, referral pathways, pay rates, policies, procedures and so on. It is anticipated this work will be complete by the time the first cohort of intermediaries complete their accredited training programme.
The Law
Currently, s14 Criminal Evidence Act 1992 is the only legislation providing a legal basis for intermediary assistance e.g., “the court may, on the application of the prosecution or the accused, if satisfied that, having regard to the age or mental condition of the witness, the interests of justice require that any questions to be put to the witness be put through an intermediary, direct that any such questions be so put.” So, Ireland’s intermediary scheme will be limited to assisting children or vulnerable adults who are complainants and witnesses initially.
However, there is widespread acknowledgement that legislation must be amended to allow defendants to access intermediary assistance and ensure equal access to justice. Furthermore, it is anticipated that over time intermediary use will extend beyond Criminal Court to other jurisdictions and into more aspects of the legal process e.g., prior to the investigative interview.
The Intermediary Role
It is expected, the intermediary role will be neutral and impartial. When a referral is received, the intermediary will meet with the witness or complainant after they have pre-recorded their evidence to carry out an assessment and make recommendations. (It is hoped these recommendations can be discussed and agreed in a Ground Rules Hearing once the trial begins however, there is currently no legislative basis for Ground Rules Hearings in Ireland.) The intermediary will then be involved at the point of giving evidence and cross-examination in court to enable the evidence to be as clear, complete and coherent as possible. And, like many other schemes across the world, the intermediary role will be viewed as different and separate from roles such as expert witness or those involved in shared or supported decision-making.
In the meantime, Registered Intermediaries from neighbouring Northern Ireland have been assisting vulnerable witnesses and complainants in a small number of criminal cases in some of Ireland’s High Courts and Circuit Courts. In these cases, most referrals have been made by the Director of Public Prosecutions and relate to very young children or children with very obvious communication difficulties or adults with intellectual disabilities or acquired brain injuries.
Other supports available within legal settings:
Interpreters
Sign language interpreters
Victim Support Services
Appropriate adult – Children under 18-years-old can have an appropriate adult such as a parent or guardian present when they are being questioned by Garda/Police.
Training
The Department of Justice has stipulated that to be eligible to train and work as an intermediary applicants must be registered with CORU – an entity that regulating health and social care professionals in Ireland. The speech and language therapy, occupational therapy and social work profession are already registered with CORU. However, the psychology profession is not. Psychologists will not be eligible to train as intermediaries until this is resolved.
The Department of Justice has also provided funding to set up and run the Intermediary Studies Professional Diploma at the University of Limerick and the first cohort of trainee intermediaries is underway.
When selecting applicants for the diploma, teaching staff at University of Limerick considered the person’s profession (speech and language therapy, occupational therapy or social work) and years of experience. They also invited applicants to discuss any relevant interests or experience e.g., previous experience assisting communication or exposure to legal contexts. The teaching staff were also keen to recruit applicants from across the country and across a range of specialist areas e.g., working with children, working with adults, working in mental health settings and so on. In future, they hope to continue to broaden the range of gender as well as cultural and linguistic diversity reflected within the intermediary workforce.
The Professional Diploma is a part-time interfaculty programme that runs throughout the academic year. There are two modules relating to the law and two modules on the role of intermediary including guest lectures from RIs from other jurisdictions, live court simulation, assignments and so on. Students who complete the programme successfully will be able to be registered for intermediary work.
It is hoped there will be ongoing continuing professional development opportunities for intermediaries such as communities of practice or Special Interest Groups but the ways these will be offered and structured have yet to be decided.
Funding
Ireland’s intermediary scheme is off to such a positive start because of the Department of Justice’s recognition of the need for the intermediary role and the funding they have provided to set up the training programme.
Work is still being done to establish who will pay intermediaries and what the payrates will be.
Pressing issues and future perspectives
Scope of practice – There is some urgency around finalising the scope of practice for intermediaries and the policies and procedures to be used when appointing them.
Building capacity – As mentioned earlier, it is hoped that legislative changes will extend the remit of intermediaries to include work with defendants, the provision of assistance in a broader range of jurisdictions and at more points of the legal process. The intermediary workforce will need to continue to grow to meet these increased demands and so work needs to be done to recruit the right people and ensure intermediary work is an attraction option e.g., job security, pay rates and so on.
Embedding intermediaries into Ireland’s judicial system – There is consensus about the need for intermediaries and Ireland’s judiciary have been very open to and positive about their experiences working alongside Northern Irish RIs who have assisted in their courtrooms. This bodes well for Ireland’s fist cohort of intermediaries. However, the intermediary role is new and not well understood. A significant amount of training for legal stakeholders will be required to ensure everyone knows how to identify when someone would benefit from intermediary assistance, how to refer, what intermediaries do/don’t do, how to work alongside intermediaries and so on.
Useful documentation and references
- O’Malley Report; A Review of Protections for Vulnerable Witnesses in the Investigation and Prosecution of Sexual Offences in 2020 https://www.gov.ie/en/publication/0964e-review-of-protections-for-vulnerable-witnesses-in-the-investigation-and-prosecution-of-sexual-offences-omalley/
- Supporting A Victim’s Journey: A Plan to Help Victims and Vulnerable Witnesses in Sexual Violence Cases https://www.gov.ie/en/publication/bb42e-supporting-a-victims-journey/
- S14 Criminal Evidence Act https://revisedacts.lawreform.ie/eli/1992/act/12/section/14/revised/en/html
- Intermediary Studies Professional Diploma https://www.ul.ie/gps/courses/intermediary-studies-professional-diploma