Report urges recording evidence to protect rape victims

Pre-recorded cross-examination should be piloted in the courts to better protect vulnerable witnesses such as rape victims, a report has found.

‘Hearing Every Voice — Towards a New Strategy on Vulnerable Witnesses in Legal Proceedings’ also recommends the increased use of pre-recorded evidence.

The report by a multi-agency group, including representatives from the Bar, academia, An Garda Síochána, the Courts Services, and NGOs also recommends that:

• Specialist approaches from other jurisdictions be further explored in relation to child witnesses;
• Professional training on facilitating vulnerable witnesses be enhanced and funded;
• The “complicated issue of delay” be addressed so delays between initial complaints and any hearings are reduced as far as possible;
• A Vulnerable Witnesses in Legal Proceedings Initiative be established and led by Government, aimed at making the criminal justice system as accessible as possible for all vulnerable witnesses.

The report, to be published today, comes in the wake of the high-profile Belfast rugby rape trial, on foot of which the Government has promised a review of legal protections for rape complainants in trials.

Caroline Counihan, legal director at Rape Crisis Network Ireland (RCNI), said that while our criminal justice system is based on the premise that face-to-face live evidence at trial is the best evidence that can be obtained, modern psychological research did not support this, “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 report says pre-recording of direct evidence has become routine in some other jurisdictions, such as England, Wales and Western Australia, to the extent that objections to it on principle have become rare.

The report — Hearing Every Voice: Towards a New Strategy on Vulnerable Witnesses in Legal Proceedings — recommends that pre-trial hearings be placed on a statutory footing and be the primary means through which special protection needs are determined.

The RCNI, which convened the group, welcomed the commitments by Justice Minister Charlie Flanagan to review all aspects of sexual assault cases in the wake of the Belfast rape trial.

“With the Belfast trial we saw how difficult the system can be on the witnesses,” said Cliona Saidlear, director of RCNI.

“Stronger, individually tailored protections will help ensure the best evidence is obtained, benefitting the criminal justice system as a whole.”

Ms Sadlier said the rights of the witness and the defendant within the legal system “are not always or necessarily in direct competition with each other”.

She said 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,” she said.

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