Statement by the Council of The Bar of Ireland re the publication of the Review of Protections for

06 August 2020

 

We welcome the publication this morning of the Report on the Review of Protections for Vulnerable Witnesses in the Investigations and Prosecution of Sexual Offences, which was prepared at the request of Government by a working group chaired by Tom O’Malley.

 

Along with its recommendations, it is a vital and important analysis of the current criminal justice system’s approach to sexual offences and vulnerable witnesses, and it will be foundational in ensuring that the justice system’s approach to such cases is effective, humane and respects the fundamental tenets of fairness before the law.

 

While we broadly welcome the recommendations set out in the Report, we would also caution that the provision of adequate resources and funding for the recommendations will be critical to the successful reform of the current system.

 

In our submission to the working group, we set out a number of recommendations that have been accepted by Tom O’Malley and his team.  We look forward to examining the Report in greater detail and engaging with the working group, the Department and relevant stakeholders to ensure that its recommendations are speedily and effectively brought to fruition.  Some key initial observations include:

 

  • Pre-trial hearings: We welcome the recommendation in the O’Malley Report for the use of pre-trial hearings to deal with legal issues such as cross-examination on previous sexual history, disclosure and the admissibility of evidence.  Pre-trial hearings will promote efficiency and will reduce the length of the trial itself and the impact this can have on complainants. The Report devotes an entire Chapter to this matter (Chapter 5).  Concurrent with any proposal to introduce pre-trial hearings is the need to ensure that greater judicial resources are provided for the hearing of criminal cases in general and, in particular sexual offences, which we believe is required to lessen delays in the trial of sexual offences.

 

  • Disclosure & Privacy:  The conduct of cases today differs wholly from when much of the legislation and practices were formed.  The O’Malley Report makes practical recommendations to deal with the increased digital material and electronic data which is collected. Judicial supervision is important to ensure that the disclosure process aids, rather than obstructs, a fair trial; and that the privacy of the complainant and accused (where data or information not pertaining to the alleged offence emerges) is protected.  In our submission, we suggested that the pre-trial hearing could accommodate such issues.

 

  • Training:  The Bar of Ireland’s existing Continuous Professional Development (CPD) programme, and in particular our Advanced Advocacy Training for members of the Law Library, is robust and equipped to incorporate relevant multi-disciplinary training, as envisaged by the O’Malley Report.  The Bar of Ireland is committed to ensuring our members, across all areas of law have the requisite skill and competence to safeguard the integrity of all parties.

 

We are committed to working with all stakeholders to ensure that this area of law is reformed appropriately in line with the Working Group’s recommendations, ensuring that the rule of law is upheld and justice served, from both a defence and prosecution perspective.