One summer evening when John* was 19, he went to a pub to watch the Irish football team playing in the European Championships. He had never been in that pub before and was accompanied by a male relative, writes Jane O'Sullivan
JOHN was stopped at the door and was not allowed into the pub. There was some dispute about why he was not allowed in.
Was it because he and his relative are both members of the Traveller community?
Was it because he was wearing a tracksuit and runners – the only footwear that allows him to move with any comfort?
These are the questions that would be considered and hotly disputed some months later in the District Court, where his discrimination claim would be heard.
When John was one-year-old he was diagnosed with a rare congenital condition that affects his balance and his speech. As a baby, he experienced delays in motor skills and now aged 21, he suffers from jerky, uncoordinated movements and spasms. He also has an intellectual disability, which compounds his difficulties with communication and affects his ability to learn.
While he was very clear that what happened outside the pub wasn’t right, John’s difficulties with communication meant that, for his lawyers, taking instructions required substantial time and care.
He had suffered significant distress and embarrassment over the incident. John was referred to Community Law & Mediation and proceedings were issued on his behalf, claiming that the refusal of entry was discriminatory.
Most claims for discrimination come before the Workplace Relations Commission. However, section 19 of the Intoxicating Liquor Act 2003 transferred claims of discrimination in relation to clubs and licensed premises to the jurisdiction of the District Court.
Taking a claim to the District Court means paying court fees and having to pay the legal costs of the other side if your case is unsuccessful.
When the matter came before the District Court, it was immediately apparent that John’s claim was significantly hampered by his difficulties with communication and comprehension, and the lack of provisions to accommodate those difficulties.
This lack of assistance or direction on how to help John to verbally communicate his evidence in the court setting created an impossible situation for everyone, including the judge and the lawyers for both parties to the claim.
The judge allowed John’s evidence to be put in a sworn affidavit and an adjournment was granted to allow time for this.
The barrister for the licensed premises was obliged to cross-examine John and test the evidence, in the interests of fair procedure. Neither the barristers nor the judge had any guidance to follow on how to approach questioning John, having regard to his level of communication or understanding.
An impartial person was allowed to assist John in communicating but there was no guidance on who this should be or what type of qualifications they should have.
A former teacher of John’s could sit with him on the witness stand to help him to communicate. She was allowed to rephrase questions that were put to John so that he could better understand them.
This case exposed an unmet need for guidance or assistance on how to make any part of the process more accessible and manageable for people with intellectual disabilities.
While there was certainly an attempt to step back from the cut and thrust of the adversarial process, this was very much on an ad hoc basis. In 2011, a guide was published by the Committee for Judicial Studies for the Irish judiciary, called The Equal Treatment of Persons in Court: Guidance for the judiciary. This is an internal document and is not available to the public.
The court environment was intimidating and challenging for John. Measures to accommodate people like John might include a liaison officer appointed by the court to show him around prior to the hearing and talk him through the court procedure.
The lack of such facilities coupled with an apparent unfamiliarity with dealing with a plaintiff with intellectual disabilities would suggest that such cases are few and far between. No data is collected on the number of people with intellectual disabilities accessing justice through issuing court proceedings.
The adversarial nature of much of our justice system creates an immediate barrier for people with intellectual disabilities. As it currently stands, the system is not designed to cater for people with particular vulnerabilities and often quite complex needs.
While the requirements on public service providers introduced by the Disability Act 2005 have led to improved access to courthouses through additions such as wheelchair ramps and induction loop systems, the case study above identifies serious shortcomings in provision for people with intellectual disabilities.
The intellectual disability organisation Inclusion Ireland posits that many cases involving people with intellectual disabilities are failing to proceed because the victims are deemed incompetent either before their case can proceed or at hearing.
They have found that information is rarely provided in a format that is understood by people with an intellectual disability and the people they work with recount how they have experienced negative attitudes when they try to complain or report something.
Many complainants and witnesses with intellectual disabilities have difficulties with adversarial forms of communication, meaning that cross-examination can be distressing for them.
The adversarial process can act as a barrier, given its emphasis on testing the evidence through robust questioning, which may be perceived by a more vulnerable witness as confrontational and overwhelming.
This can be particularly difficult for those, for example, who have difficulty with long or short term memory recall, with communicating effectively and with cognitive overload.
Relatively simple matters such as the taking of an oath prior to giving oral testimony can be fraught with difficulty. Striking a balance between the needs of such individuals and the fundamental elements of fair procedure and due process is central to the implementation of the Convention in Ireland.
The United Nations Convention on the Rights of Persons with Disabilities was formally ratified by Ireland on March 20, 2018. It came into force in Ireland on April 19 that year. Articles 5 and 12 of the Convention recognise and guarantee the equal rights of persons with disabilities before the law and their entitlement to the protection and benefit of the law and to equal and effective legal protection against discrimination on all grounds.
Very importantly, Article 13 provides that:
The Department of Justice and Equality has recognised the Optional Protocol to the Convention as providing a high degree of accountability.
This part of the Convention has yet to be ratified in Ireland. The Government intends to ratify it following the first reporting cycle under the Convention.
This Optional Protocol allows for individuals or groups to communicate violations of the Convention directly to the UN Committee on the Rights of Persons with Disabilities.
Cases like John’s expose the lack of guidance for solicitors, barristers and judges when dealing with cases taken by or on behalf of people with intellectual disabilities.
This gap means that on a very practical level, the protection against discrimination for certain plaintiffs with an intellectual disability means very little in the current system. They are denied an effective remedy.
For plaintiffs like John, the law remains a remote and inaccessible concept with little meaning if they can’t enforce their rights.
Jane O’Sullivan is a solicitor in Community Law & Mediation Northside and practises in the area of employment and equality.
* Not his real name