Judge asks if adversarial legal system ‘fit for purpose’ when dealing with serious crime cases involving children

The senior judge managing the Central Criminal Court has asked whether the State’s adversarial legal system is “fit for purpose” in dealing with children who are victims of, or accused of, serious crimes.

Mr Justice Paul McDermott said an increasing number of “awful” cases coming before the Central Criminal Court (CCC) involve children and vulnerable witnesses, including people with intellectual disabilities, being “shoehorned” into an adversarial system designed for adults.

There have been some improvements, including a “sea change” in how children and vulnerable witnesses are cross-examined, but he said he would invite people to consider whether the adversarial system is “fit for purpose” for children and vulnerable witnesses.

A different system for children “may be worth considering”, the judge said, particularly in relation to deepening knowledge about stages of child development and aspects of child memory.

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Mr Justice McDermott asked what is achieved by cross-examining children: “Are we eliciting fact, is that the reality of what we are doing, or are we deluding ourselves in thinking we are eliciting fact by cross-examining children in an adversarial way?

“These are just thoughts, I don’t have a view, I’m not entitled to have a view, I’m a judge, I apply the law as it is but they are thoughts that I think are worthy of consideration.”

The fact judges do not have the full range of sentencing options, particularly to suspend or partially suspend sentences of detention on young offenders approaching 18 while going through the criminal justice system, creates an “unfairness” that needs to be addressed by others, he added.

It is “well beyond time”, he said, for the updating of good practice guidelines issued in 2003 for interviewing vulnerable witnesses. The committee that issued those guidelines had recommended to the Department of Justice in 2003 that they should be updated regularly, but this has not happened, he said.

The judge was speaking in Dublin recently at the launch of a book, Vulnerable Witnesses and Defendants in Criminal Proceedings, written by Dr Miriam Delahunt, a practising criminal barrister who completed a PhD on support measures for child witnesses in criminal proceedings. Dr Delahunt has acted as an intermediary for defendants in such cases.

Mr Justice McDermott, who wrote the foreword to the book, published by Clarus Press, told those in attendance, including judges, lawyers and newly qualified intermediaries, the book is a “superb” work and “essential Bible” for legal practitioners and all working in this “very difficult” area.

The CCC, he said, deals annually with about 30-40 such cases, which are “very difficult”, not just for the children and vulnerable people coming through the system, but for lawyers trying to negotiate “the minefield of the provisions of the legislation” and “almost haphazard” development of the system over a number of decades.

He said gardaí, as investigators, take recorded evidence from the child involved prior to trial. That material is then made subject of cross-examination at trial, and a lot of problems have come to the fore, including the impact of delayed cross-examination.

Some cross-examination techniques “obfuscate” reality and truth and do not necessarily clarify matters, he said, adding that confusing children can be “very easily done”.

The judges dealing with such cases are extremely experienced and sensitive, and intermediaries trained in dealing with vulnerable witnesses are of great assistance to the courts, he said.

A CCC stakeholders group has been established with a first objective of reducing the time between a case coming into the court to its disposal at trial. A goal of six months for cases involving children and vulnerable witnesses has been set and another priority is to minimise delays before a case comes to the court at all.

Delay can inflict “great damage” on children going through the process and compressing the time-frame is very important when it comes to sentencing, Mr Justice McDermott said. The thrust of the Children’s Act was to ensure a different regime of sentencing for those who committed crimes as children and delay in investigating or processing a case can be “a lifetime” for a child making allegations and a child accused.

If an accused is convicted when approaching 18 after a delay of up to two years, there is no option available to suspend or partially suspend a sentence of detention, limiting the review options available to the sentencing judge.

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