The law and the legal system
15.1 Access to the legal system is a matter of fundamental importance in a democratic society and is recognised as such in the Irish Constitution, the European Convention on Human Rights and in international law. However, there are many barriers standing in the way of full access to the law and the legal system for people with disabilities in Ireland. These include the familiar ones of access to buildings and to information as well as specific procedures and practices of the legal system.
15.2 A range of measures are needed to ensure the right of access to the law and the legal system for all Irish citizens. These should include an action programme by the Department of Justice to make all courts fully accessible to people with disabilities, consultation with the legal professional bodies in relation to access for people with disabilities to legal advice and to training as lawyers, and a general raising of awareness amongst the legal professions towards disability issues.
15.3 Legislation, including statutes and Ministerial and other regulations, are generally only available in standard written form which means that they are inaccessible to many people who have visual disabilities. The Commission believes that all public documents should be provided in a range of appropriate formats, including large print, braille and computer disc.
15.4 Legal documents such as court summonses are also available in printed form only. These are frequently difficult to read and understand even for people who do not have any visual or learning disability. All legal documents should be as clear and easy to understand as possible. In addition, an information leaflet should be enclosed with documents in relation to court proceedings, which would give specific advice in relation to access to the court for people with disabilities and other relevant information. Court staff should be aware of disability issues and should be able to deal with inquiries from people with disabilities.
15.5 Issues surrounding the provision of legal services to people with disabilities should be pursued by the Council for the Status of People with Disabilities and the Law Society.
15.6 The Legal Aid Board should examine all its offices and make them fully accessible to people with disabilities. It should also assess the accessibility of its services in relation to people with visual and hearing disabilities in order to ensure that appropriate facilities (such as sign language translation) are fully available.
15.7 It is clear from submissions to the Commission that many courts are extremely inaccessible for people with mobility disabilities, inhibiting the right of access for such people whether they be members of the public, plaintiffs, defendants, witnesses, jury members, court staff, lawyers or judges. The Department of Justice should make all court buildings accessible over a period of five years. Information in relation to the accessibility of court buildings (accessible parking, entrances, toilets, facilities for people with hearing disabilities, etc.) should be provided for all people with disabilities using the court system.
15.8 Having gained access to the courts themselves, two further issues arise for people with disabilities giving evidence. The first is in relation to people who require interpretation such as those who have a hearing disability. The Garda Commissioner has recently decided to employ sign language interpreters in all cases where their services are required. This is a very positive development but it does not apply to the civil courts. Provision should be made for a similar scheme in relation to all services provided by the Legal Aid Board, including court appearances. Similar provisions should be made for people with speech disabilities who require interpretation facilities.
15.9 The second issue which arises in this regard is in relation to the giving of evidence by people with general learning difficulties or intellectual disabilities. At present, the general common law rule is that all persons capable of understanding the nature of the oath and capable of rational testimony are able to give evidence. This can create difficulties for people with intellectual disabilities in that they may not be capable of understanding the nature of the oath or, alternatively, the court may consider that they are not capable of rational testimony.
15.10 The Law Reform Commission has proposed that the oath should be abolished and replaced by an affirmation. In relation to people with learning disabilities, it has also proposed that a test of competence to give evidence should be introduced and that such persons should not be required to affirm. However, this does not apply in relation to the civil law where the old rules still apply. It is particularly important that all efforts should be made to ensure that people with intellectual disabilities are facilitated in giving evidence in court. In particular, the court needs to be sensitive to the particular needs and abilities of such people. Consideration should be given to extending the changes in criminal law to all types of case.
15.11 Some people with disabilities are specifically excluded from serving on juries under the Juries Act 1976. The First Schedule to that Act, which sets out a list of persons ineligible to serve on a jury, includes two types of people with disabilities:
- People who have insufficient capacity to read, deafness or other permanent infirmity, and
- People who suffer or have suffered from mental illness or mental disability and, on account of that condition, are either
- resident in a hospital or other similar institution or
- Regularly attend for treatment by a medical practitioner.
15.12 These provisions should be repealed from the Juries Act 1976. In reviewing the accessibility of courts, the Department of Justice should make sure that they are fully accessible to allow people with disabilities to act as jurors.
15.13 The criminal law in relation to persons with mental incapacity is based on legislation going back to the 19th century and is in urgent need of reform. An inter-departmental committee reported on the issue in the late 1970s but its proposals have never been implemented. At present, the law in this area is under somewhat piecemeal review, with the Department of Health considering some aspects and the Department of Justice reviewing others. In the light of developments in this area since the late 1970s, there is a need for a new public review of mental incapacity and the criminal law to be carried out by the Law Reform Commission or by an inter-departmental committee.
15.14 People with disabilities who wish to qualify as lawyers find themselves up against the physical barriers in the two professional schools for lawyers, the Law Society in the case of solicitors and the Kings Inns in the case of barristers. Neither of these premises are easily accessible for persons with mobility disabilities. Further difficulties may face them in relation to books and training materials. In addition, neither body appears to incorporate any element of disability awareness training or specific training on aspects of law likely to be relevant to people with disabilities.
15.15 The Council for the Status of People with Disabilities should enter into discussion with both the Law Society, the Bar Council and the Kings Inns in relation to the provision of legal services to people with disabilities. These discussions should also cover access by people with disabilities to their professional training courses.
15.16 Unlike the position in relation to jurors, there is no specific legal provision to disqualify persons with disabilities of any kind from becoming members of the judiciary. In order to be appointed as a judge, however, it is first necessary to have been a practising lawyer. The difficulties many people with disabilities face in entering the legal profession thus prevent full access for people with disabilities to judicial appointments.
15.17 Research from others countries - there is little available in Ireland - suggests that people with disabilities are more likely than other people to be the victim of both general crime - including theft and break-ins in the persons home - and physical and sexual abuse. Research in London found that harassment and abuse was, in several cases, specifically related to the person's disability. There is clearly a need for urgent research in this area in Ireland: it should be funded by the Departments of Justice and Health.
15.18 In the Irish context, the Commission believes it is essential that more research into the specific problems faced by people with disabilities in relation to abuse is required and that the relevant authorities should draw up policies and guidelines in this area drawing on best practice.
15.19 In the light of other countries' research findings, the relevant public bodies (including the Departments of Justice and Health, Health Boards, Gardai) must review existing policies in order to ensure that adequate protection and support is provided for people with disabilities. Such a review should draw on the lessons learned in the UK and on proposals put forward there by the National Society for the Prevention of Cruelty to Children and by the National Rehabilitation Board in Ireland.
15.20 Disability awareness training should be provided to all Gardai and others working in this area as part of their general training. All police stations should be fully accessible to people with disabilities and Gardai and other personnel who are able to communicate in sign language should be available.
The Criminal Justice System: Children
15.21 A significant proportion of children who come in contact with the Juvenile Justice System are described as having general learning disabilities. However, they often suffer from a range of disadvantages and it is difficult to distinguish the effects of learning disabilities from the other disadvantages. Accordingly, it is suggested that the most appropriate way to develop policies in relation to such children is to see them as children with a range of disadvantages (including general learning disabilities) rather than highlighting their disability.
15.22 The Commission recommends:
- That the Child Care Act be fully implemented as a matter of priority so as to ensure that a system of child welfare services is in place to prevent, where possible, children coming in contact with the juvenile justice system.
- The urgent reform of the juvenile justice system so as to put in place a child centred system of juvenile justice. This need was emphasized in the report of the Task Force on Child Care Service published in 1981. A juvenile justice bill has been promised for over 10 years and the current government programme includes a commitment to enact a bill to update the law dealing with young offenders and to extend the juvenile liaison scheme.
- Appropriate services should be provided for all children and young people with disabilities who become involved in the juvenile justice system, including education, training and accommodation.
- In the development and implementation of policies in this area, disability issues should be fully incorporated at all stages.
The Criminal Justice System: Adults
15.23 There is a lack of information in relation to the extent to which people with disabilities are to be found in the criminal justice system. It seems likely that people with disabilities make up at least the same proportion of the prison population as they do of the general population. Some particular aspects of disability may be over represented in the prison population. Unfortunately, disability has not been considered in any great detail in the studies, which have been carried out to date.
15.24 The issue of people with disabilities in the prison system should be the subject of further long-term research by the Council for the Status of People with Disabilities. Such research should be funded by the Department of Justice and should investigate the extent to which people with different types of disability are to be found in the prison population and the extent to which the current prison system meets their specific needs. It should propose long-term proposals for reform in the light of its findings.
15.25 The Department of Justice should review the accessibility of prisons for people with disabilities. All new prison buildings should comply with the building regulations in this regard.
15.26 The Department of Justice should ensure that all educational and training courses and materials provided are appropriate to the needs of people with disabilities. Prisoners with learning disabilities should be identified; special programmes, with the emphasis on remedial education, should be set up; and continuous assessment carried out in all cases with a view to suitable placement following release.
15.27 All prison staff should receive disability awareness training.