Pre-recorded cross-examinations recommended for Irish courts

A report says it could maximise the potential of a witness to recall what happened

Pre-recorded cross-examinations recommended for Irish courts

A courtoom in the Courts of Criminal Justice, Dublin | Image: Sasko Lazarov/RollingNews.ie

A new report has recommended an increased use of pre-recorded evidence in Irish courts.

It also says pre-recorded cross-examinations should be piloted to better protect and support vulnerable witnesses.

A multi-agency group of experts, convened by Rape Crisis Network Ireland (RCNI), says 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".

Caroline Counihan, RCNI’s legal director, adds: "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.

"Modern psychological research does not support this conclusion, particularly since the advent of high resolution pre-recorded video and video-link solutions."

She says pre-recording a garda statement soon after a complaint has been made could also help "minimise the risk of secondary traumatisation by reducing exposure to the adversarial criminal justice process itself".

"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 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.

"A less traumatising experience"

The group makes 33 recommendations across eight headings in the report.

The RCNI also says it welcomes commitments made by the Justice Minister Charlie Flanagan to review all aspects of sexual assault cases in the wake of the recent Belfast rape trial.

Director of RCNI, Cliona Saidlear, says: "With the Belfast trial we saw how difficult the system can be on the witnesses.

"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.

"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 group also recommends 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.

Within their recommendations, the group takes into account all witnesses in need of special support and protection - including 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.