Dr Deirdre Healy and Dr Marie Keenan call for urgent reforms to prevent years-long sexual offence trials from re-traumatising victims.
Bláthnaid Raleigh, who was raped in Galway in 2019, highlighted the adverse impact of delays in the processing of sexual offences on victims of crime, explaining that she “lost five years” of her life waiting for her case to get to trial.
Unfortunately, Bláthnaid’s experience is not unique, as sex offence cases often take many years to reach a conclusion. Lengthy delays are a major cause for concern and have the potential to re-traumatise victims, undermine the right of accused persons to a fair trial and impede the effective administration of justice.
Our research, commissioned by the Department of Justice, explored why sexual offence cases progress so slowly through the criminal justice system and how bottlenecks in the system could be alleviated.
We interviewed 78 professionals including representatives from An Garda Síochána, the Office of the Director of Public Prosecutions, the Court Service, the Legal Aid Board and Criminal Legal Aid Scheme, the Judiciary, the Legal Profession, Sexual Assault Treatment Units, Forensic Science Services, NGOs, and HSE and Tusla counselling and legal services.
We found that serious delays in the processing of sex crime are present in almost every case and at almost every step of the criminal justice process. The reasons are complex and varied. However, a lack of investment in the criminal justice system was identified by nearly every participant as the single biggest reason for delay.
Delays are also caused in part by an inadequate criminal legal aid fee structure, unchanged for many years, which no longer reflects the labour-intensive nature of the work undertaken by legal professionals. As a result, many take on heavy caseloads to generate sufficient income, leading to busy schedules and over-subscribed diaries, and tend to only read files in full, close to the trial date.
Uncertainty across the entire system regarding when cases will actually be heard, despite appointed trial dates, compounds the problem. This culture of last minute-ism emerged as a second key source of delay.
In criminal trials, the prosecution is required to disclose to the defence all evidence in its possession that is pertinent to the case. In some cases, this information is sourced from schools, medical, counselling and social services, and phone and social media companies.
The process of locating, reviewing, redacting and sharing this evidence is time-consuming, particularly in the case of non-recent sexual offences where poor quality, non-digitalised records must be sourced from all over the country. Trials are often adjourned if disclosure is not completed on time or if the defence needs additional time to review the new evidence.
The voluminous nature of disclosure materials, coupled with the culture of last minute-ism in analysing files and requesting and sourcing disclosure materials described above, constitutes the third major source of delay.
Inefficient organisational processes and systems give rise to further delays. Despite recent efforts to enhance inter-agency working, the findings of this research pointed at times to a lack of communication between agencies; a level of reticence regarding inter-agency working; gaps in understanding of each other’s work practices, needs and challenges; and a lack of information sharing.
Compounding matters, case tracking IT infrastructure is still in its infancy. This means that cases cannot be tracked from start to finish and little is known within the system about where or why bottlenecks are occurring.
Lastly, inconsistent levels of knowledge and expertise across the criminal justice sector are contributing to delays. Innovations like Garda Divisional Protective Service Units, which specialise in the investigation of domestic and sexual offences, have increased the level of expertise in the sector.
However, a complainant’s first encounter with the criminal justice system is still often with a non-specialist frontline Garda who may miss the opportunity to collect time-sensitive evidence or fail to collect the right kind of information from complainant interviews, slowing the progress of the case.
We propose the following evidence-informed recommendations to address delays in the processing of sexual offences.
Substantial investment is required across the entire criminal justice system. Resourcing levels have not kept pace with the significant increases in the number of sexual offences coming to the attention of the gardaí in recent years and are well below the European average.
Indeed, a 2022 European Commission for the Efficiency of Justice evaluation found that Ireland has the fewest judges per capita in Europe. Recent increases in the appointment of judges have not significantly changed this picture.
The disclosure process should be streamlined and properly resourced, and its nature and functions examined in more depth. The introduction of pre-trial hearings may in time address some of the issues we identified. However, further reform is needed.
In this and other regards, we welcome minister for justice Helen McEntee’s recent announcement of her plans to introduce legislation to make complainants’ counselling notes inadmissible as evidence in criminal trials.
The review of the criminal legal aid scheme must continue, and a separate disclosure payment ought to be introduced for criminal justice legal practitioners. This would help to address the voluminous increase in disclosure materials and the culture of last minute-ism in case preparation by overstretched legal practitioners.
A whole-system, multi-agency response should be created to enhance communication, collaboration, and information sharing between agencies. The response should be overseen by a High-Level Multi-Agency Strategic Management Group to ensure accountability and oversight.
The introduction of an integrated IT system that can track and manage cases from the beginning to the end of the criminal justice process is also essential. The system should be used to generate (and publish) high-quality statistical information, monitor the efficiency of criminal justice systems and identify where exactly bottlenecks are occurring.
In addition, a trauma-informed, person-centred, restorative culture needs to be embedded in the criminal justice system. This has the potential to not only protect the welfare of complainants and accused persons but also enhance system efficiencies, as complainants will be more likely remain involved with the criminal justice process after reporting.
Lastly, a Special Court for Sexual Offences should be piloted, and specialist training must continue to be provided to all front-line criminal justice staff. Increased levels of training and specialisation can help to expedite case processing times (as specialist practitioners tend to elicit better quality evidence from witnesses) and mitigate the risks of secondary victimisation caused by the system itself.
- Dr Deirdre Healy is associate professor at UCD Sutherland School of Law and Dr Marie Keenan is associate professor at UCD School of Social Policy, Social Work and Social Justice. A version of this article first appeared in The Irish Times.
