Irish and international legal reform resulting from the Convention on the Rights of Persons with Disabilities [CRPD] has primarily focussed on Article 12, the right to exercise legal capacity. Article 13, which declares the right to access justice and the right to access procedural accommodations for all with disabilities, is often neglected. Specifically, research has not sufficiently explored the accommodations needed by witnesses with communication difficulties to testify in the courtroom. This study brings this aspect of Article 13 into focus by exploring the views of Irish legal professionals and disability advocates regarding existing and potential further accommodations for witnesses with communication diffiuclties in Irish criminal proceedings. By comparing and contrasting contributions, a series of conflicting perspectives between the legal profession and disability community are revealed. As successful implementation of Article 13 requires collaboration between both groups, this study concludes that these conflicts will need to be acknowledged and addressed in order for reform of courtroom accommodations to succeed.


The Convention on the Rights of Persons with Disabilities [CRPD] was adopted by the United Nations [UN] in December 2006 and was the first international human rights treaty of the 21st century (Quinn, 2009). In its preamble, the CRPD recognises that those with disabilities continue to face barriers to full participation in society, as well as violations of their human rights. It outlines the responsibility of State Parties to create societies which recognise the common humanity of those with disabilities and to adapt to accommodate natural diversity in ability (Chan, French, Hudson, & Webber, 2012). It declares rights for people with disabilities in many areas including education, employment and accessibility.

While Ireland was one of the first signatories to the CRPD, doing so on 30th March 2007, it has yet to ratify the Convention. According to Doyle and Flynn (2013), the prolonged wait is as a result of Ireland being a dualist State. This dualist nature requires incompatible legislation in national law be amended before an international treaty adopted.

Articles 12 and 13 of the CRPD specifically address the barriers faced by those with disabilities in legal contexts. Article 12 outlines the right to equal recognition before the law and the right to exercise legal capacity. In practice, it signals a move from disabling guardianship arrangements to supported decision-making processes and enables those with disabilities to become participants in legal decisions about their own affairs. This Article has been described as "the beating heart of the Convention" and consequently, the issue of legal capacity has successfully secured the attention of legislative reformers around the globe (Commissioner for Human Rights, 2012, p. 21). In Ireland, lobbying on legal capacity led to the passing of the Assisted Decision Making (Capacity) Act 2015, which replaced an antiquated Ward of Court system.

In comparison to Article 12, Article 13 has received little attention. Article 13 outlines the responsibility of State Parties to ensure effective access to justice for persons with disabilities on an equal basis with others. Access to justice has been defined as "peoples' effective access to the systems, procedures, information, and locations used in the administration of justice" (Ortoleva, 2011, p. 282). In Article 13.1, the Convention states:

"States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages."

The inclusion of this Article in the CRPD reflects existing evidence that people with disabilities face multiple barriers in accessing the justice system. For example, people with disabilities are more likely to be victims of crime, less likely to report these offences and less likely to have the perpetrator successfully convicted (C. Edwards, Harold, & Kilcommins, 2012; Flynn, 2015; Law Reform Commission, 2013; Petersilia, 2000). The provision of procedural and age-appropriate accommodations, as required under Article 13, is inextricably linked with Article 9 of the CRPD which necessitates the provision of accessible environments to enable participation. Naturally, Article 13 is also closely linked with Article 12, which has been previously described above. Without being equally recognised before the law, the testimony of witnesses with disabilities is likely to be undervalued and/or disregarded.

Within the courtroom, the symbolic location of justice, environmental barriers to participation are present. According to Flynn (2015), the traditional designs of courts, which are steeped in symbolism, result in physical barriers to for those with reduced mobility. For example, the entrances to court buildings are placed at the top of flights of steps and witnesses are questioned in raised and walled witness boxes. In Ireland, these physical barriers are addressed by the Disability Act 2005 which necessitates that all public buildings be accessible for those with physical disabilities. However, beyond physical barriers, Flynn recognises the barriers posed by the lesser-considered communication environment in courtrooms (2015). Barriers to effective communication in the courtroom are of particular consequence to those with communication difficulties who participate in legal proceedings.

Communication difficulties in the courtroom

Communication difficulties can be defined as any challenge which interferes with a person successfully exchanging information and ideas (Owens, 2011). This can be due to reduced understanding, difficulties using words and sentences, or difficulties with speech production. Deafness is not considered a communication difficulty in recognition of the Deaf community's belief that deafness is a communication difference, and not a difficulty (Davis, 2006). The International Classification of Disease (ICD 10) (World Health Organisation, 1992) recognises that communication difficulties have multiple aetiologies. Developmental communication difficulties include specific speech difficulties, as well as receptive and expressive language difficulties. Communication difficulties can also be a component of other diagnoses, including intellectual disability, autism, dementia and acquired impairments such as traumatic brain injury.

While there is a dearth of research which specifically examines the consequences of communication difficulties in Irish courtrooms, international studies are drawn upon to provide insight into the demands of similar communication environments.

Receptive language difficulties

For those with communication difficulties, participation in a criminal trial is a challenging process. An individual with receptive language (comprehension) difficulties may struggle to understand announcements, instructions to the jury, verdicts and written documents (Flynn, 2015). Talbot (2008) offers an insight into such challenges by sharing the following quote from an offender with learning difficulties:

"I didn't know what was going on and there's no one to explain things to you. They tell you to read things and in court you can't just ask for help."

(Talbot, 2008, p. 22)

Court proceedings expose participants to large amounts of unfamiliar legal vocabulary such as "criminal," "evidence," "defendant," "guilty," and "objection." In a study of adults with developmental disabilities, statistically significant differences were found in the understanding of 33 out of 34 legal terms when compared to non-disabled peers (Ericson & Perlman, 2001). Talbot (2008) highlights the potential consequences of such challenges:

"'I didn't understand really. I pleaded guilty straight away. I didn't know what he meant when he said custodial."

(Talbot, 2008, p. 22)

In addition to difficulties understanding legal processes and legal vocabulary, direct questioning places comprehension demands on participants. Research has shown that questions in cross-examination use highly complex syntax, semantics and sequential language (Zajac & Hayne, 2006). Brennan and Brennan (as cited by Nair, 2009) draw attention to the frequent presence of double negatives and rhetorical questions during questioning. The use of tag questions and clauses often occur in cross examination, and these present particular confusion (Hanna, Davies, Henderson, & Hand, 2013).

Tag question: "Mum told you something happened to her, didn't she?"

Subordinate clause: "You knew that, if you told somebody that Bob had touched you, then Bob would get into trouble"

(Hanna et al., 2013, p. 20)

Additionally, the understanding of time concepts, such as 'earlier', 'after', and 'before', are often vital in the provision of evidence, time-lines and alibis, and can prove difficult (Hanna et al., 2013).

Cross-examination techniques are confrontational in nature, given the adversarial nature of the criminal justice system (Nair, 2009; Zajac & Hayne, 2006). Questions can be asked repeatedly in order to obtain the desired answers (The Advocate's Gateway, 2015), a process which has been described as harassing, intimidating and misleading (Nair, 2009). Of particular concern is the use of leading questions, which are a key tool of cross examination. Research involving those with intellectual disabilities has found increased vulnerability to suggestion which, it is hypothesised, is due to language comprehension difficulties, as well as acquiescence, susceptibility to influence by figures of authority and concentration difficulties (Milne & Bull, 2001). Lawyers interviewed by LaVigne and Van Rybroek (2013) reported that those with language difficulties whom they encountered often claimed to understand when it was clear that they didn't. A participant with learning difficulties interviewed by Talbot (2008) stated:

"I couldn't understand but I said 'yes, whatever' to anything because if I say, 'I don't know' they look at me as if I'm thick."

(Talbot, 2008, p. 21)

Expressive speech and language difficulties

As well as those who experience difficulties with language understanding, participants with expressive language difficulties also face challenges in the courtroom. This is due to the requirement to give evidence viva voce, meaning orally and in person. Narratives are the initial basis of testimony, which are later questioned and challenged in order to reveal specific details (Nair, 2009). To provide a cohesive and accurate narrative, a wide range of skills are required. Memory recall, expressive vocabulary, morpho-syntactic proficiency, knowledge of narrative structure, sequencing skills, and ability to use conjunctions, clauses, causal and temporal terms are all required (Milne & Bull, 2001; Segal & Pesco, 2015; Spencer, Kajian, Petersen, & Bilyk, 2013; Wetherell, Botting, & Conti-Ramsden, 2007).

For those whose difficulties do not relate to language, but to speech production, challenges to participation also exist. Phonological, articulation and motor speech difficulties affect speaker intelligibility and the ability to communicate messages clearly to lawyers, jurors and judges. Dysfluency, commonly referred to as stammering or stuttering, is closely related to environmental factors, including linguistic, cognitive and emotional demands (Adams, 1990; Byrd & Gillam, 2011). Therefore, the demands of the courtroom environment are likely to increase dysfluent behaviour and reduce communication capacity.

Pragmatic language difficulties

Pragmatic language difficulties are those which facilitate successful communication in social contexts. They relate to the unspoken rules of conversation such as taking conversational turns, being aware and responsive to conversational partners' needs, initiating and maintaining conversation topics, and practicing culturally appropriate eye contact and personal boundaries (Owens, 2011). Pragmatic difficulties are most commonly associated with autism spectrum disorder, as their presence is a criterion for diagnosis (American Psychiatric Association, 2013). Difficulties with pragmatic language can result in communication behaviours which are negatively interpreted by judges and juries, such as interrupting barristers, speaking at length about topics irrelevant to proceedings or averting their gaze from their questioner (Allely, 2015; The Advocate's Gateway, 2013).

Current accommodations for witnesses in Irish criminal proceedings

The Criminal Evidence Act 1992 is the only legislation which provides special accommodations in the Irish legal system. Under this Act, witnesses who are children, who have a "mental handicap," or who are alleged victims of sexual abuse, are entitled to certain accommodations. Legal professionals remove wigs and gowns to deformalize proceedings. The giving of primary evidence (termed evidence-in-chief) in a pre-recorded video interview is permitted and witnesses are allowed to give further evidence via video link from outside the courtroom. Finally, the Act provides for an intermediary system. While no Irish definition of an intermediary exists, in England and Wales they have been defined as a person whose responsibility is "to enable complete, coherent and accurate communication to take place between a witness who requires special measures and the court" (Ministry of Justice, 2015, p. 8). They are typically professionals with a relevant specialisations such as psychology or speech and language therapy (O'Mahony, 2010).

While the above adaptations offer a level of accommodation for qualifying witnesses, concerns have been expressed that they do not adequately address the barriers faced by witnesses with communication difficulties (C. Edwards et al., 2012; Kilcommins, Edwards, & O'Sullivan, 2013). The removal of wigs and gowns, as well as the ability to give live evidence via video link, have been explained as attempts reduce witness' exposure to the hostile courtroom environment (C. Edwards et al., 2012). However, these adaptations do little, if anything, to address the communication demands of participation, as they do not alter the linguistic elements of the process. There is more positive regard for the ability to pre-record a witness's evidence-in-chief. This measure allows the questioner to take time to attune to the communication of the witness by developing an awareness of their levels of comprehension and expression before the interview, something which is not possible within the courtroom process (Delahunt, 2015). It also allows evidence to be collected closer to the time of the alleged incident, leading to greater detail to be recorded (Law Reform Commission, 2013). However, the necessity for witnesses to be cross-examined on this evidence during the live- trial, and the communication demands of this, is not addressed by this measure (C. Edwards et al., 2012).

The use of intermediaries is recognised as a potentially useful means of reducing courtroom communication demands. However, in Ireland, it is seldom used. While the intermediary system has been provided for since 1992, it is reported to have only been used once in the Irish courts ("Father forced son to have sex with mother, court told.," 2016). Concerns have also been expressed that the use of an intermediary could introduced bias into the proceedings, by advertently or inadvertently pressurising a witness to respond in a particular manner (C. Edwards et al., 2012). In practice, the availability of intermediaries in Ireland has been described as "ad hoc" (Law Reform Commission, 2013, p. 108) and their existence lacking in "legislative detail and procedural guidance" (Delahunt, 2015, p. 65).

International accommodation practices

The accommodations provided for by the Criminal Evidence Act 1992 in Ireland are commonly seen in other jurisdictions. Kilcommins at al. (2013) reviewed practices in Ireland, England and Wales, Northern Ireland, Scotland, New Zealand, Canada and Australia. Across these seven jurisdictions, live evidence is permitted via video link in seven countries and the provision of pre-recorded evidence-in-chief is permitted in five countries. Intermediaries are available in three jurisdictions. In addition to these accommodations, the literature contains examples of further accommodations which are not available in Ireland. Those which are most pertinent to the communication environment of the courtroom and the communication demands of witness participation will be described.

As previously mentioned, the recording of evidence-in-chief prior to the commencement of the trial is one measure seen in Ireland and elsewhere to support evidence-giving. In Ireland, this does not negate the requirement to be cross-examined on this evidence during trial. In England, Wales, Northern Ireland and Australia, qualifying witnesses are also permitted to be cross-examined in advance of the trial via recorded video (Kilcommins et al., 2013). This has similar benefits to the pre-recording of evidence-in-chief; it allows counsel to attune to the communication of witnesses before commencing questioning and reduces the hostility of cross-examination.

Cross-examination, whether during the trial, as is the case in Ireland, or in advance, as in other jurisdictions, is an adversarial process which results in psychologically and linguistically demanding situations for witnesses with communication difficulties. The adversarial nature of questioning is cushioned in New South Wales, Australia, where procedural accommodations in the Evidence Act 1995 ("Evidence Act (NSW) (Austl.)," 1995) allow witnesses to give evidence through free narration (Nair, 2009). This means that witnesses provide their evidence to the court without the questioning, interrupting or direction of a lawyer. This is said to alleviate the abrasiveness of the process (Nair, 2009). A similar adaptation is available in England and Wales, but only at the investigative phase and not in courtroom proceedings. In Israel, in cases of sexual abuse involving witnesses with intellectual and psychosocial disabilities, witnesses' testimony can be supported, directed and interpreted by experts with therapeutic backgrounds (Flynn, 2015). This differs from the previous mentioned role of an intermediary, as the support person becomes directly involved in interpreting the meaning of the person's evidence. This process amends the requirement for objectivity in evidence and as the person is from a therapeutic, not a legal, background, they can again "cushion" the confrontational nature of questioning from barristers.

In England, Wales, Northern Ireland and Scotland, witnesses with communication difficulties are permitted to use communication aids to support their testimony (Kilcommins et al., 2013). Flynn (2015) states a concern that courts can be preoccupied with verifying the validity of such forms of communication. Scope (2009) challenge this view by advocating that Alternative and Augmentative Communication (AAC) aids are part of a person's voice, and not a separate entity. Flynn shares the argument of Baggs (2007, as cited by Flynn, 2015), in which he rejects society's expectation that disabled people adapt their communication to a means which is more familiar to society, but instead argues that society, and in this case, the courts, should adapt and learn their form of communication. Irish law is currently silent on the right to be assisted by communication aids, but its introduction has been called for by Kilcommins et al. (2013).

Finally, British literature addresses a perceived lack knowledge of appropriate questioning techniques for use with so-called "vulnerable witnesses" amongst judges and legal professionals in the United Kingdom (Kebbell, Hatton, Johnson, & O'Kelly, 2001). A guidance document on questioning such witnesses has been created in the United Kingdom to address this (Home Office, 2002). The extent to which the legal profession in the United Kingdom are aware of this guidance or to which this has been implemented in practice is not known.

The current study

In contrast to the area of legal capacity, access to justice and courtroom accommodations for those with disabilities have received little attention by Irish researchers, advocates and reformers. In its Roadmap to Ratification, the Irish Government set out the legislative measures it views as necessary in order to meet the requirements of the CRPD (Department of Justice and Equality, 2015). This document is silent on the issue of accommodations to support witnesses with communication difficulties in the courtroom. It is unclear whether this indicates Governmental satisfaction with current measures of the Criminal Evidence Act 1992 or an oversight of this issue when identifying areas for reform. Once the CRPD has been ratified in Ireland, the State will be obliged to report to the Committee on the Rights of Persons with Disabilities within two years, and every four years thereafter. In this report, they will be required to address their compliance with Article 13 by outlining the availability of procedural and age-appropriate accommodations in the State's justice system, as well as any other measures which ensure the effective access to justice by all persons with disabilities (Committee on the Rights of Persons with Disabilities, 2009). It is a critical time to address this gap and examine practices in this area.

The authors, being committed to inclusionary research practices, initially proposed to examine this topic by gathering the personal experiences of six adults with communication difficulties who had given evidence in Irish criminal proceedings. The Research Ethics Committee did not grant approval for such a study, citing concerns that the ultimate beneficence gained from a small-scale study of its nature did not outweigh the risks involved in questioning adults with a perceived dual vulnerability (a communication difficulty and a history of association with criminal behaviour). In studies involving adults with intellectual disabilities, research ethics boards assess risk differently (McDonald, Conroy, Olick, & Panel, 2017). Often, the belief is held that such groups are more vulnerable and that the risk of a study causing harm is therefore heightened. This has been found to influence a more paternalistic approach to ethical approval. However, McDonald at al. argue that to take risks is a human right desired by those with intellectual disabilities. Additionally, they argue that the exclusion of the voices of people with intellectual disabilities from research limits their ability to benefit from scientific progress. While at all times, research participants must be safeguarded against risk through the use of robust procedures, the argument is made that the opportunity to take part should not be denied.

In the current instance, as the authors were unable to successfully gain approval for the original study, a revised study was proposed which utilised the expertise of professionals in the field. Recognising that professional knowledge could not be used to answer questions regarding the personal experiences of witnesses with communication difficulties, the study's aim was revised.

The revised proposal set out to examine the current accommodations available to witnesses with communication difficulties in Ireland from the perspective of both the disability rights community and the legal profession, and to examine these in light of Ireland's obligations under Article 13.1 of the UN CRPD. Ethical approval was granted for this revised study


The study was informed by the relativist ontology which believes that reality is constructed in a intersubjective manner (Cohen & Crabtree, 2006). In line with this ontological standpoint, the subjectivist and constructivist epistemologies were adopted, as they hold that knowledge is not concrete and unchanging, but influenced by both the participants' and researcher's perspectives (Lincoln, Lynham, & Guba, 2013). For this study, the first author acknowledged her professional background as a speech and language therapist. Her clinical and academic expertise in the diagnosis and management of communication difficulties influenced how she perceived data provided by the participants. She also acknowledged her commitment to a sociological and human rights based conceptualisations of disabilities, over medical models.

This study adopted a grounded theory [GT] methodology due to its capacity to generate rich data and theoretical understandings through a systematic process (Charmaz, 2006; Hussein, Hirst, Salyers, & Osuji, 2014). The constructivist grounded theory [CGT] methodology of Charmaz (2006) was specifically chosen, as in contrast to early grounded theory, the constructivist turn discards the previously held notion of a neutral researcher and acknowledges the role which the researcher plays in understanding social processes and constructing theories (Charmaz, 2006).

Purposive sampling was utilised to obtain participants with relevant knowledge of both the Irish legal system and the CRPD. Participants were eligible for inclusion in the study if they were either:

  1. An academic or professional with experience of the field of disability advocacy and/or lobbying of at least two years duration, and knowledge of current accommodations for vulnerable witnesses in criminal proceedings in Ireland.
  2. A barrister, solicitor or judge working within criminal law for at least two years and have knowledge of current accommodations for vulnerable witnesses in criminal proceedings in Ireland.

Data was collected via interview, as recommended for CGT studies, to gather in-depth information from the perspectives of participants (Charmaz, 2006; Patton, 1990). Interviews were semi-structured which allowed for a specific probing of the study's central topics, but a retention of flexibility in the interview's structure (R. Edwards & Holland, 2013). Participants were not required to have prior knowledge of Article 13.1 of the CRPD, as the interview design included the opportunity to introduce this to participants.

Interviews began with questions which probed participants' professional background, in order to frame their subsequent contributions. Following this, the definition of 'communication difficulties' as adopted in this study, was presented to participants. A question was then presented which probed any direct experiences which the participants had of the topic at hand. However, it was recognised that some participants, while possessing valuable information regarding the topic, may not have experiential information from criminal proceedings to draw upon. This was particularly anticipated for disability advocates. Therefore, an alternative method of extracting data was available in such instances. Three scenarios were constructed by the researcher, each of which depicted a person with a different disability and a different set of communication challenges (Appendix 1). These scenarios allowed those with experience of disability to apply their knowledge to the courtroom context. Following experiential and/or scenario based questions, Article 13.1 of the UN CRPD was introduced to participants. Questioning moved to examining participant's interpretation of this Article, their perceptions of the Article in comparison to current practice in Ireland and their views on reform.

Interviews were transcribed using a transcription protocol, based on that of McLellan, MacQueen and Neidig (2003). Data was analysed using the guidelines of Charmaz (2006). Analysis was non-linear and used a constant-comparison method, described originally by Glaser and Strauss (1967) as the simultaneous collection and analysis of data to generate a progressive more theoretical understanding. In practice, this was achieved using concurrent memo-writing, coding, theoretical sampling and theory-building.

As each interview was conducted, memo-writing was utilised as a debriefing tool to provide a record of the researcher's reflections on the content of that individual interview. These early memos were also used as a tool to document the researcher's early thought processes and emerging theories regarding the data (Appendix 2). As interviews were conducted and transcribed, they were subjected to segment-by-segment initial coding. In line with the recommendations of Charmaz (2006), initial coding used gerund phrases to identify processes and actions emerging from study's data. These codes were treated as provisional and the researcher returned to revise codes later in the research process as analysis deepened. As questions and tentative theories began to emerge following early memo-writing and initial coding, interview questions and probes for subsequent interviews were revised. Questions were purposively asked in order to explore emerging theories further.

Following initial coding, analysis progressed to focused coding, a more selective and conceptual form of coding (Charmaz, 2006). Again, recognising coding as an emergent process, the researcher remained open to the revision of these codes throughout this phase of analysis. Twenty-three focused codes emerged from the study's data. Each interview was then re-coded using these focused codes Collated focused code data sets were created, which allowed the researcher to become immersed in individual codes. Multiple readings of these documents aided the researcher to conceptualise how codes related to each other and advanced memo writing was used to document emerging theories. Reviewing of these advanced memos resulted in the establishment of the study's findings.

A number of methods were employed to maximise the quality of study data. In response to concerns regarding the complexity of the GT and CGT research processes (Hussein et al., 2014; Nagel, Burns, Tilley, & Aubin, 2015), the authors received external guidance on the methodology from a colleague with experience of using it in research practice. This increased the dependability of the process. The study's research tools, including the interview schedule, transcription protocol and analysis procedures were devised by the first author and subjected to scrutiny by the study's second author, an experienced qualitative researcher. They were revised based on his feedback. Following transcription, transcripts were sent to interviewees, who were invited to complete a member check to confirm that their contributions had been accurately recorded.


Eight participants were recruited to take part in the study. Four participants were sourced directly by the researcher and four were sourced with the assistance of three gatekeepers. Four participants were practicing barristers. The remaining participants were a law academic with a specific interest in disability issues, a legal professional working in a law reform agency, a paralegal professional who had recently established an organisation related to disability issues in the criminal justice system, and a disability advocate.

Through their contributions, participants provided insights into the workings of the legal system in Ireland. They discussed the underlying belief systems of both the legal system and the CRPD, and exposed conflicts between the two. When analysed, participants' contributions illuminate a number of challenges which must be overcome in order to meet the obligations of Article 13.1 of the CRPD for those with communication difficulties within this jurisdiction.

An experience and knowledge deficit

Participants believed that legal professionals lacked experience interacting with people with disabilities. Emma and Mary, both disability advocates, felt that legal professionals were not exposed to disability in their working lives, or also, in many cases, in their personal lives. Specifically relating to communication difficulties, Niamh, a legal academic with an interest in disability, said:

"A lot of legal professionals don't have experience in communicating with people who communicate differently."


Participants had differing opinions on the professions' overall level of disability awareness. From within the profession, Sarah felt her colleagues' awareness of communication difficulties was better that that of the general population, as communication is a central component of their work. John believed it to be similar to the general population, in that some individuals had good levels of awareness and others, more limited. However, the three participants with the closest links to the disability community, Mary, Emma and Niamh, had different opinions. Both Emma and Niamh felt that legal professionals lacked experience in communicating with people with disabilities and did not have the required skills to do so. Mary perceived a gap in disability awareness which she described in strong terms:

"I think it's ignorance really. I think it's ignorance. Unless you're exposed to it you're not going to know."


Claire highlighted the direct impact of reduced disability awareness on achieving justice. She described a case where a judge stated that he could not grant a witness an intermediary as he required a more recent medical report to establish if the witness still had an intellectual disability. This shows a lack of understanding of the permanent nature of the person's disability. Claire shared another instance where the Director of Public Prosecutions made a decision to diminish the charges brought against an alleged offender based on the false belief that trying a case in the Circuit Court, and not the superior High Court, would be an easier experience for the victim who had a communication difficulty, despite the fact that the communication demands of both courts are indistinguishable.

A reduced level of disability awareness also appears to contribute to negative attitudes towards witnesses with communication difficulties which exist within the legal profession. Claire, a barrister, felt her colleagues would describe such witnesses as "not very bright." A number of participants from legal backgrounds described individuals as "vulnerable," "suffering," and "labouring under a disability." Mary, Niamh and Emma, the three participants with closest links to the disability community, believed that the profession automatically assumed that witnesses with disabilities could not testify, a stance which Mary and Emma rejected and Niamh described as dangerous.

"(They) automatically assume because somebody has got an intellectual disability that they aren't able to take part in whatever the process is"


Sarah, a barrister, reported that she was once worried about putting a boy who had autism on the stand:

"But there were very serious worries about whether we should proceed with the case because there was a fear that he wouldn't be able to give his evidence."


When given the opportunity to testify, Sarah reported that the boy gave "excellent evidence," showing that original perceptions were unfounded. Claire and Sarah, both barristers, believed that participants with communication difficulties would only be called in the case of particularly serious crimes. In cases where other witnesses were available, it was felt that they would be called upon instead. Together, these contributions indicate a perception that witnesses with communication difficulties are viewed as second class within the legal profession.

A second consequence of reduced disability knowledge is the tendency for legal professionals to treat those with disabilities as, or like, children. Sarah explained that almost all the general public have experience of interacting with children, a group who are not yet able to communicate to the fullness of their ability. In comparison, peoples' exposure to disability is less. Therefore, people use the strategies they employ when communicating with children with those with disabilities. This then transfers to the way cases are handled within the justice system. In Paul's case involving an adult woman with Down Syndrome, he reported that "she was effectively treated as though she was a child".

In discussing accommodations for adults, some barristers inadvertently gave examples of accommodations which are more suitable for children, such as the provision of guardians ad litem (a support for children), balls, plastic toys and teddies. According to Cliona and Claire, both practicing barristers, this inappropriate attitude exists widely within their profession.

In exploring the reasons behind the professions' reduced disability knowledge, participants who were barristers explained that they had received no instruction on disability when training in their legal institutes. Niamh highlighted that no compulsory training on disability issues exists for judges also. While Niamh suggested that non-mandatory training opportunities may be available, Cliona and Emma perceived a culture of resistance to training in the judiciary however, suggesting that if it is available, it may not be accessed. As Emma said, "You don't train judges".

Sarah described an optional training programme for barristers with which she is involved. This training programme addresses advocacy in a legal context; that is the act of presenting a legal argument. It includes practical training on questioning witnesses. Sarah sees transferable benefits to witnesses with disabilities by increasing the awareness of lawyers of the way in which they ask questions. However, this training was not said to draw on any specific disability expertise from outside the legal profession. Emma advocated for specific training that would address the communication skills needed by professionals to work with people with communication difficulties

Conflicting perspectives

Through their contributions, participants depicted a range of conflicts which exist between the justice system and the aims of the Convention (Figure 1).

Conflicting perspectives depicted visually, with Legal System perspectives on the left and UN CRPD perspectives on the right.

Figure 1. Conflicting perspectives. This figure summarises the differences in perspective between the legal system and the UN CRPD. The legal system is described as inflexible, which is in conflict with the flexibility needed for individual responses to disability. The legal system is concerned with objectivity, in contrast to a more interpretative nature of the UNCRPD. Furthermore, while the UN CRPD aims to empower those with disabilities, the legal system errs of the side of protection of perceived vulnerability. Finally, many in the legal sphere feel the provision of courtroom accommodations is an additional service which should only occur in the event that sufficient resources are available in the legal sphere. However, the UN CRPD views these accommodations as a right, and they therefore should be as part of basic legal services.

1. The conflict between an inflexible system and individual supports

Mary believed strongly that 'one person's disability is very different from another". Participants described dissatisfaction with the current provisions in Irish legislation (Criminal Evidence Act 1992) due to its offering of standard accommodations and its lack of ability to adapt to the needs of individual witnesses. This call for personalised and individualised accommodations was in conflict with participants' portrayal of the criminal justice system as a largely inflexible entity.

Participants of all backgrounds, explicitly or implicitly, suggested that the courtroom processes and procedures operate in a rigid manner. Emma is an experienced disability advocate who tries to be creative in the methods she uses when working with people with different needs. She described a case of a man with autism and selective mutism being questioned in court:

Well, if we think about the gentleman I supported who was being charged with motoring and other offences, he was a selective mute. And so, he could be seen as not being co-operative. But there are ways in which you could work with him to get answers to questions. But that wasn't going to happen in court.


Niamh described an air of resistance to procedural changes in the legal system. She advocated for a more flexible approach to courtroom procedures, including the use of different formats, the provision of regular breaks and adaptation of questioning styles. She explained that such changes are seen as interfering with the adversarial ethos of the criminal justice system and the provision of a fair trial, and are therefore fought. Sarah rejected these concerns stating that "to adapt the system to allow them to give better evidence and to be gentler in terms of their experience, does not affect a fair trial".

Sarah cited the UK experience whereby adaptations to evidence giving procedures were introduced to make the process less intimidating for "vulnerable witnesses." In the time since these measures have been introduced, she stated that conviction rates have not changed. This, she believes, quashes any concerns that more flexible procedures interfere with the rights of the accused.

The role of judges was seen as significant by participants. It was recognised that judges have responsibility for managing cases and makings rulings regarding the permissibility of accommodations. Participants provided examples of occasions when judges took a rigid approach to accommodating the needs of witnesses. In Paul's case where the alleged victim was a woman who had Down Syndrome. The judge did not permit for transcripts of the woman's pre-recorded evidence to be given to the jury to aid their understanding of her speech. Niamh encountered a judge who believed that he could not offer any supports to a person with mild difficulties, despite this not being stated in legislation. Niamh believed him to be imposing unnecessary limits on how flexible he could be. Emma, a disability advocate, has had judges refuse to read supporting material which she provided about her clients' needs and threaten to eject her from the court.

Niamh perceived that judges thought in concrete ways, and that they wanted prescribed actions to take, should a person with a particular disability be in their court.

"I think what judges would really like is 'persons with X disability behave Y way.' And then they would know, people with autism can do this and therefore in the courtroom I should do…."


While she appreciated the reason why judges may want such guidance, she rejected it as an effective means of supporting people with individual needs. On occasions where judges operated with more flexibility, the outcome for witness was described as more successful. Paul, the barrister who prosecuted a rape case involving a woman with Down Syndrome, explained that he presented the judge with a set of twenty ground rules for all parties in that case. These included an agreement not to use legalese, to facilitate the woman to take breaks if required and the giving of sufficient time to process and answer questions. The judge granted the majority of these requests, which contributed to better experience for the witness.

2. Communication support as an interpretative act, threatening objectivity

Participants describe the legal system as a cautious entity that is built on principles of objectivity, validity and proof.

"I suppose the court are naturally eh, cautious and cynical."


Such principles were seen as necessary in order to uphold the integrity of the criminal justice process. In practice, Niamh stated that this results in a heavy reliance on medical evidence. When accommodations are requested for witnesses with disabilities;

"There would be some expert report saying the person needs that, and that would be their basis for granting it."


With objectivity, validity and proof of primary concern to the legal system, John described caution regarding processes that do not meet these standards. Communication support is not an objective process. It is an interpretive act which depends on personal interpretation of meanings. Paul questioned the objectivity of intermediaries if they were to interpret the responses of witnesses with communication difficulties for the court.

"The danger with explaining the answer is that you might get a jaundiced view from the intermediary (of) what their (the witness') opinion is."


Paul used the world danger, indicating his perception that any move away from a reliance on objectivity could threaten the achievement of justice or, as stated by John, undermine the integrity of the process. Emma stated that AAC systems, such as Talking Mats and high-tech communication devices are rejected by the court as invalid forms of communication. Such systems are often used during facilitated communication, whereby a person receives support from another to operate their AAC system. The potential for purposefully misinterpreting and introducing bias in such a process was a concern for Cliona and mentioned as a source of international legal debate by Niamh.

The conflict between the desire for objectivity in the court and the interpretive nature of communication support is a challenge to the introduction of accommodations for witnesses with communication difficulties.

3. The conflict between protectionism and empowerment

Participant's contributions revealed a conflict between the legal system's historical focus on protectionism and paternalism and the CRPD's focus on empowerment. John and Paul use the area of sexual offences to discuss the law's focus on protectionism. Both recognise that current laws in this area were designed to protect those with disabilities from sexual abuse, but in turn, restricted their freedoms.

"I suppose it's a balance between society trying to protect people of that type, but also allowing them to have sexual expression, if that's what they choose to do. So it's a complicated issue."


John recognises that the Convention moves beyond this protectionist stance in its Articles, and is more concerned with principles of empowerment. The accommodations of the Criminal Evidence Act 1992 were introduced to protect "vulnerable" groups, children and those with a "mental handicap." While there are benefits to protecting people from the rigours of the process, John acknowledges that the issue of accommodations needs to be reframed as a means to empowering a person to give their best evidence. He does not feel that this attitudinal change will occur quickly:

"It is a kind of psychological movement away from paternalistic approach to an empowered approach that the Convention envisages. That will take a bit of time I think."


4. Are accommodations resource dependant or a human right?

A final conflict arises from the CRPD's belief that access to justice is a human right, whereas the legal representatives saw the need to justify the provision of accommodations financially. Sarah, a barrister, began her interview by immediately framing the issue at hand in terms of prevalence.

"I can tell you that it is very, very rare for someone, with, particularly with significant communication difficulties, to come into contact with the criminal justice service."


Sarah uses this low prevalence to question whether investment in accommodations, such as intermediaries, is warranted:

"It's a bit like the Government being asked to resource some particular piece of medical equipment that is going to help five people. They're thinking, why would we spend money on this because it's only going to help such a tiny fraction of the number of people?"


This contrasts sharply with the perspective of the Convention sees the provision of accommodations to enable participation as a human rights issue. Emma, a disability advocate, clearly identifies with this argument:

"It has to be taken on as a rights issue."


When framed as a human rights issue, issues of financial justification are irrelevant in the decision to provide accommodations. To lobby for reform in this area, Niamh suggested that a moral argument for change needs to be made, one which includes the personal stories of people with communication difficulties and examples of situations where their rights were not upheld.


Disability knowledge and training within the legal profession

This study revealed that disability advocates perceive that there is an insufficient level of disability awareness within the Irish legal profession. In Ireland, it is possible that this lack of awareness, results in the presence of limiting attitudes towards witnesses with communication difficulties and leads such witnesses to be unnecessarily side-lined in legal proceedings. These findings support the existing Irish literature which has reported concerns regarding the levels of disability knowledge of legal professionals and the presence of negative assumptions regarding people's capacity to act as witnesses (C. Edwards et al., 2012; Kilcommins et al., 2013). This study moves beyond the existing literature, and further suggests that a lack of familiarity with disability within the legal sector contributes to the treatment of adults with disabilities like children, a response which is in conflict with Article 13.1's requirement to provide age-appropriate accommodations.

This study found that in order the meet the obligations of Article 13.1, the provision of disability training to legal professionals is essential. This is called for in Article 13.2 of the CRPD. Additionally, the Committee on the Rights of Persons with Disabilities (2009) request specific reporting on this issue by State Parties. Delahunt (2015) reports that training on the examination of witnesses with an intellectual disability is recognised as an on-going need in the Irish legal training institutes, the Honourable Society of Kings Inns and the Law Society. However, disability training must address both the profession's skill deficit in questioning people with communication difficulties and its limiting attitudes towards people with disabilities. In this study, details of an ongoing training initiative on legal advocacy and questioning were shared. However, this is delivered from a legal perspective only. Training which collaborates with those who have expertise in communicating with those with disabilities is needed, as well as training which challenges disabling attitudes and stereotypes. Additionally, this study found that members of the legal profession often lack experience in interacting with people with communication difficulties and other disabilities. According to Kanter (2011, p. 474), opportunities to interact with people with disabilities challenge legal professionals to confront their "assumptions, biases, and fears about people who are different from themselves." Therefore, any disability training offered should use the expertise of self-advocates and involve interaction with people with disabilities (Ortoleva, 2011).

This study found a desire for a wider range of accommodations for witnesses, which can be used as necessary on a case-by-case basis during courtroom proceedings. In such a scenario, the role of judges is envisaged as critical as it is they would be given the discretion to grant or deny requests for such accommodations. Judges' flexibility and openness would be essential in order for such an approach to be successful. As a result, disability training for judges is particularly important.

Conflicting perspectives

The study found a series of conflicting perspectives between the foundations of the Irish legal system and the CRPD (Figure 2). While these have been presented individually previously, but will now be considered together from a wider, socio-legal perspective.

The view of disability taken by the CRPD moves decisively towards social and human rights based interpretations of disability (Ortoleva, 2011; Quinn, 2009; Stein & Lord, 2008). In contrast, this study found that the legal system embodies a medical model of disability, in both its attitudes and actions. Garcia Iriarte (2015) describes the medical model as that which problematizes the individual and not the environment in which they exist. Additionally, it relies on medical expertise over the expertise of people with disabilities. This study found both of these characteristics within the Irish legal system. This results in a system which is inflexible to the needs of people with communication difficulties and one which relies heavily on medical proof of impairment more so than the expertise of those with disabilities. The medical model is also characterised by the use of "personal tragedy" terminology (Garcia Iriarte, 2015). The use of outdated, disabling and tragic terminology within legislation and the legal profession was noted by this study. According to Kanter (2011, p. 433), "word choice can reveal values that reflect the speaker's beliefs about disability as well as human worth, in general." The terminology used in the legal system embodies the view of people with disabilities as "vulnerable" and in need of protection. The characteristics of the legal system which have been identified present a barrier to pursuing more progressive accommodations to empower witnesses, such as those previously described in other jurisdictions including Israel and Australia.

The law has the ability to either contribute to societal barriers for people with disabilities or be a source of social change (Kanter, 2011). While more progressive views undoubtedly exist within the profession, and many were held by participants of the current study, the picture painted of the legal system as a whole is one incompatible with the principles of the CRPD. The integrity of the legal system is clearly a primary consideration for those within the profession. The natural caution and suspicion of the courts described in this study can be justified in an attempt to protect the system from inappropriate interference, as can the need to protect the rights of the defendant. However, a system which disables, instead of empowers, witnesses with communication difficulties and fails to adjust its practices sufficiently to ensure their human rights are achieved, cannot be deemed just. Ultimately, as described by Jones and Basser Marks (2000), if the law aims to treat all citizens equally, it should reflect this in its actions towards witnesses with communication difficulties.

While this study explored the current Irish context only, and should not be transferred directly to other jurisdictions, it can be used to provoke thinking regarding the compatibility of legal systems and the CRPD in other jurisdictions.

Limitations of the current study

This study utilised a small, purposive sample. Those who agreed to partake in the study did so because they have an interest in the research topic and therefore, participants cannot be said to represent the views of their professions as a whole. Additionally, while the research was framed as examining accommodations available to witnesses with a variety of communication challenges, many participants focused largely on intellectual disability in their responses. For these reasons, the generalisability of results is low and should be done with caution.

Time limits in conducting the current study truncated the researcher's ability to utilise the theoretical sampling principle of grounded theory to its fullness. It was not possible to conduct second interviews with original participants or to recruit additional participants to test emerging theories. While this was mitigated through the widespread use of the principle during successive interviews, it has reduced the confirmability of the research findings.

Areas for further research

In the current research, it was not possible to hear the direct experiences of people with communication difficulties who have been witnesses in criminal proceedings. In order to deepen the understanding of accommodation practices in Ireland and learn from those who have experiential knowledge, this is essential. Additionally, if conducted sensitively, supportively and appropriately, such a study could challenge system level issues in disability research: namely, over-paternalism and the suppression of the voice of people with intellectual disability in the name of protection.

Finally, this study examined this issue from a socio-legal perspective. The understanding of the legal environment in Ireland in relation to this topic would be further enhanced through examination of relevant case law.


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Appendix 1: Scenarios

Scenario 1: John

"John is a 58-year-old man who has cerebral palsy. He does not have an intellectual disability but due to his cerebral palsy, his control of the muscles for speech, like the tongue and lips, are reduced. John communicates using words and sentences, but those who do not know him can sometimes struggle to understand the words he is saying. John was the only witness to an assault in his home town. He has been called to give evidence in court.'

Scenario 2: Sinead:

Our second scenario relates to Sinead, a 20-year-old woman who has Down syndrome and a mild intellectual disability. Sinead finds it difficult to concentrate for long periods of time when people are speaking to her. She finds it difficult to understand new and unfamiliar words, such as 'evidence' and 'guilty'. She also gets confused with language concepts that relate to time, such as 'before', 'after', and 'first'. When she doesn't understand, she often pretends she does, in the hope that people will then leave her alone. Sinead witnessed an armed robbery. She has been called as a witness during the trial.

Scenario 3: Pauline

Our final scenario is that of Pauline. Pauline is 31 years old and has autism. Pauline becomes very anxious in new situations. She communicates verbally, but has difficulties with other aspects of communication. She is unsure of the social rules of conversation and will often interrupt the person she is talking to or may change topic with no warning. Pauline takes language literally and becomes confused when figurative language such as 'to have a chip on your shoulder' or 'to rub someone up the wrong way' is used. Pauline is the only witness to an alleged assault.

Appendix 2: Early memo

Memo 7: Prevalence and justifying resources

Date: 07.07.16

Context of reflection: During transcription of Sarah's interview

During yesterday's interview, and today's transcription, issues of prevalence played on my mind, based on Sarah's contributions.

Sarah spoke about how she has only come across a handful of situations where a person who was involved in a criminal case had noticeable communication difficulties. There are no prevalence figures available as far as I am currently aware, however people with ID are more likely to be victims of abuse and there is a higher than average rate of people with communication disorders in prisons than in the general population. Therefore, I question whether there are many people who are simply not identified as having communication difficulties in her courtrooms. These are likely people with hidden disabilities such as SLI & undiagnosed Asperger's and not cases where people have more obvious disabilities such as those Down syndrome and cerebral palsy.

Sarah makes the argument that it will be hard to resource as the prevalence rates are so low, but perhaps there needs to be more training so that people with communication needs are first identified. Then, it would be easier to prove the necessity to resource a support structure.

The other thing that strikes me is that outside of prevalence, there is an argument that people have a right to accommodations, and this shouldn't be prevalence dependent. Human rights should not depend on prevalence. Therefore, the arguments to resource supports are potentially more suited to this angle.

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