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Role of witness intermediaries could expand to assessing needs, pre-trial
Professor Tom O'Malley Pic: RollingNews.ie

21 Sep 2021 / judiciary Print

Witness intermediary could get advisory pre-trial role

Because it took so long for intermediaries to be used in Irish law, their existence hasn’t met the level of resistance experienced in other jurisdictions, a webinar on judicial training has heard.

“Irish lawyers, generally, accept that intermediaries can play an important role in the system,” law lecturer Tom O’Malley of NUI Galway said at a webinar entitled Judicial Education and Training in 21st century Ireland (17 September).

However, there is always a difficulty in ensuring that any special measures do not encroach on the accused’s right to a fair trial, which is inviolable, he commented.

O’Malley said that the Criminal Evidence Act 1992 was a very progressive piece of legislation by the standards of the time, and is still very adequate, having been amended.

Complainant

That law provides for the use of an intermediary during a criminal trial, in the case of a vulnerable complainant.

It also allows for the recording of a statement to be used during the trial as evidence, as well as use of remote links.

However, it took 20 years for these provisions to be given effect, and almost 30 years for an intermediary to be used in an Irish court, O’Malley said.

An intermediary is usually qualified in speech-and-language therapy, or in psychology, and is a specialist in assisting people who have communication difficulties, and those under 18.

This is very useful where a witness is very young, or has a disability or learning difficulty of some kind, O’Malley said.

An intermediary acts like an interpreter between court and witness, he said, and has quite an interventionist role.

However, the working group on the trial of sexual offences, chaired by O’Malley, found that the interventionist role was only one role that an intermediary might play.

Advisory role 

The intermediary can also exercise an important advisory role, by assessing the witness’ needs in advance of the hearing, and advising the court and counsel in advance of the trial as to what kind of special arrangements should be made.

“An intermediary could also be used during the police questioning of a witness, and in particular, the complainant,” O’Malley said.

This would allow for involvement at an earlier, investigative stage, he said.

A new provision for pre-trial hearings means direction can be given on a whole range of matters, relating to the admissibility of evidence, as well as special measures in sexual-offence cases.

“That should help quite a lot in terms of having agreement reached in advance as to what precise role the intermediary will play,” O’Malley said.

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