28 May 2019

The "gift of feedback" with a global resonance

Two female plaintiffs deliver the “gift of feedback” to Irish bar conference while barrister calls legal delays a “national disgrace” - messages for lawyers in all jurisdictions?

By Dr David Cowan

Bar of Ireland

Conferences can often be inconsequential platforming, but the Bar of Ireland's Laws & Effect Conference held this weekend highlighted a range of problems in the legal profession in Ireland that will doubtless resonate with other jurisdictions.

“Gift of feedback”

Campaigner Vicky Phelan told delegates “The courtroom is a terrifying place for plaintiffs” in negligence cases. She said she wanted to offer the “gift of feedback” to the profession. Last year, Ms Phelan settled her case against a US testing laboratory for €2.5m over the alleged misreading of her smear tests under the CervicalCheck programme. She chose to forego a gagging order to reveal how many other women were affected too. Ms Phelan said the court experience is intimidating, confusing and hard to follow. She also criticised the layout of courtrooms, saying seating is uncomfortable for the sick and “I felt the layout of the court, with the stepped arrangement and everybody on different levels, was very intimidating and confusing to me.” When giving evidence witnesses sit on an elevated stand and cannot see their solicitors, who face a different direction. Ms Phelan said it would be useful to demystify the court, “I would have liked to have been shown the courtroom, maybe a tour, to be walked around the courtroom,” adding “Or, even if that was not possible, to be shown photos of the courtroom and to go through that with my solicitor or barrister or somebody who would be an advocate for plaintiffs.” She said that trying to follow what was happening was like trying to do “a dance where everyone else knows the steps”.

Stop humiliating victims

The second plaintiff  to speak, Leona O’Callaghan had been raped as a child by Patrick O’Dea from Limerick, and waved her right to anonymity after his conviction last year to help other survivors, though she said she was one of the “lucky ones” because her case was taken up. She told delegates that during the four-year legal process she tried to take her life on three occasions. During the three years between making her statement to being told that the Director of Public Prosecutions had accepted the case for trial, she said she became “an unwell woman. I was an angry wife, an unstable mother, and a struggling survivor” and felt her life was on hold. Ms O’Callaghan explained, “Preparing myself for trial and cross-examination along with the disappointments of adjournment after adjournment brought me close again to breaking point.” She asked delegates to do what they could to reduce the delays that complainants have to face when involved in the prosecution of sexual offences. “Delays leave survivors in pain for years at a time” and lawyers have “a level of accountability for doing your part in a reasonable timeframe. You are the experts, you know what needs to be done.” While she understood the principle that everyone deserves representation and “who at the end of the day deserve the right to be presumed innocent until proven guilty beyond reasonable doubt. Irrespective of my history I respect that,” she stated, but what is not merited is “victim blaming and the shameful humiliation of survivors in the courtroom.” She asked barristers, “Please choose wisely before you humiliate a survivor unnecessarily. Choose wisely before asking them to read aloud the slogan on their underwear that you know in your heart and your senses is irrelevant to whether a rape happened or not. Choose wisely before asking a victim [how] they spent the money . . . that was given to them by the man who groomed and molested them.”

“National disgrace”

In her case, Mr O’Dea was given a concurrent sentence for her rape, because he had already been sentenced to 15 years for raping a six-year-old girl. O’Callaghan said “To me it felt like a message that either my or the other girl’s rape didn’t really matter. Our legal system says he gets a free one. I never did find out which one of us was the free rape.” Responding to the pleas, Sean Gillane SC told the conference delays in serious crimes being brought to trial are “a national scandal” impacting how decisions are taken by the accused about whether to plead innocent or guilty. He asked, with irony, given a choice between a person pleading guilty and being sentenced within weeks or pleading innocent and delaying sentences for a number of years, what way would they choose? He also stated the two presentations were questions being asked about how the legal system deals with crimes of sexual violence, questions that have never been asked before. He agreed there were problems to be addressed, noting such reform is always politically charged. He accepted there are always calls for rebalance “irrigated” with the idea that there are sides to the issue, “But if you start with the premise that the position of the victim can only be improved by harming the position of the accused, then you are starting from the wrong place.” Chair of the Irish Criminal Bar Association, Jane McGowan BL said the only way to protect criminal justice system is to invest in it, and called for funding of pre-trial hearings outside Dublin to ensure cases can proceed on a fixed trial date to ensure rights of accused & victims.

“Great error”

John Rogers SC, who served as Attorney General of Ireland from 1984 to 1987, expressed regret for not speaking out clearly on the issue of judicial independence when it was the subject of a national referendum in 2011, saying it was “a great error.” He said tenure and security of salary are  critical, quoting Alexander Hamilton dictum that “In the general course of human nature, a power over a man's subsistence amounts to a power over his will.” He also said government ministers should not position judges as “the enemy”, saying he had recently heard a government minister speaking of “taking on” the judges, explaining that though ministers are naturally entitled to speak, it is troubling when they began to use such language. He told delegates, “We can’t be in the position of turning the judges into the enemy.” Mr Rogers added he feared that the proposed new regime for the appointment of judges might be unconstitutional. The change is being promoted by the minister for transport, tourism and sport, Shane Ross. He said, “The worst thing would be that they could adopt and pass a proposal that would be found to be unconstitutional, and there are many that say it is unconstitutional.”

Arbitration Centre website

At the conference, Arbitration Ireland was showcasing their new website, which promotes the benefits of Irish arbitration and the Dublin Dispute Resolution Centre (DDRC), a purpose-built facility. Later this year is the 7th Annual Dublin International Arbitration Day 2019 on Friday, 15th November 2019 and also the Young Practitioners Seminar on Thursday, 14th November 2019.

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