Jane O'Sullivan is Managing Solicitor with Community Law & Mediation Northside. She practices in employment and equality law and also works in law and policy reform in relation to human rights and access to justice. Names have been changed to protect client confidentiality.
One summer evening when John was 19, he went to a pub to watch the Irish football team playing in the Euros. He had never been in that pub before and was accompanied by a male relative. John was stopped at the door and was not allowed into the pub. There was some dispute about why he was not allowed in, whether it was due to his disability and to what extent the staff on the door were aware that he had a disability. These questions would be considered and hotly disputed some months later in the District Court, where his discrimination claim would be heard.
When John was one year old he was diagnosed with a rare congenital condition that affects his balance and his speech. Now aged 21, he suffers from jerky, uncoordinated movements and spasms. He also has an intellectual disability, which compounds his difficulties with communication and affects his ability to learn. John’s difficulties with communication meant that, for his lawyers, taking instructions required substantial time and care. He had suffered significant distress and embarrassment over the incident. John was referred to Community Law & Mediation and proceedings were issued on his behalf, claiming that the refusal of entry was discriminatory.
Most claims for discrimination come before the Workplace Relations Commission. However, section 19 of the Intoxicating Liquor Act 2003 transferred claims of discrimination in relation to clubs and licensed premises to the jurisdiction of the District Court. Taking a claim to the District Court means paying court fees and having to pay the legal costs of the other side if your case is unsuccessful.
When the matter came before the District Court, it was immediately apparent that John’s claim was significantly hampered by his difficulties with communication and comprehension, and the lack of provisions to accommodate those difficulties. This lack of assistance or direction on how to help John to verbally communicate his evidence in the court setting created an impossible situation for everyone, including the judge and the lawyers for both parties to the claim. The judge allowed John’s evidence to be put in a sworn affidavit and an adjournment was granted to allow time for this. The barrister for the licensed premises was obliged to cross-examine John and test the evidence, in the interests of fair procedure. An impartial person was allowed to assist John in communicating but there was no guidance on who this should be or what type of qualifications they should have. A former teacher of John’s sat with him on the witness stand to help him to communicate. She was allowed to rephrase questions that were put to John so that he could better understand them.
The court environment was intimidating and challenging for John. The lack of assistance for him, coupled with an apparent unfamiliarity with dealing with a plaintiff with intellectual disabilities would suggest that such cases are few and far between. Indeed, no data is collected on the number of people with intellectual disabilities accessing justice through issuing court proceedings.
The adversarial nature of much of our justice system creates an immediate barrier for people with intellectual disabilities. As it currently stands, the system is not designed to cater for people with particular vulnerabilities and often quite complex needs.
Many complainants and witnesses with intellectual disabilities have difficulties with adversarial forms of communication, meaning that cross-examination can be distressing for them. The adversarial process can act as a barrier, given its emphasis on testing the evidence through robust questioning, which may be perceived by a more vulnerable witness as confrontational and overwhelming. This can be particularly difficult for those, for example, who have difficulty with long or short term memory recall, with communicating effectively and with cognitive overload. Striking a balance between the needs of such individuals and the fundamental elements of fair procedure and due process is central to the implementation of the Convention in Ireland.
The United Nations Convention on the Rights of Persons with Disabilities was formally ratified by Ireland on 20th March 2018. It came into force in Ireland on 19th April 2019. Articles 5 and 12 of the Convention recognise and guarantee the equal rights of persons with disabilities before the law and their entitlement to the protection and benefit of the law and to equal and effective legal protection against discrimination on all grounds.
Very importantly, Article 13 provides that:
1. 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.
2. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.
The Department of Justice and Equality has recognised the Optional Protocol to the Convention as providing a high degree of accountability. This part of the Convention has yet to be ratified in Ireland. The Government intends to ratify it following the first reporting cycle under the Convention. This Optional Protocol allows for individuals or groups to communicate violations of the Convention directly to the UN Committee on the Rights of Persons with Disabilities.
Cases like John’s expose the lack of guidance for solicitors, barristers and judges when dealing with cases taken by or on behalf of people with intellectual disabilities. This gap means that on a very practical level, the protection against discrimination for certain plaintiffs with an intellectual disability means very little in the current system. They are denied an effective remedy. For plaintiffs like John, the law remains a remote and inaccessible concept with little meaning if they can’t enforce their rights.