Dr Alan Cusack (Associate Professor of Law, University of Limerick)
As the primary gatekeepers of Ireland’s criminal justice system, members of An Garda Síochána enjoy unparalleled influence over the trajectory of a criminal investigation (Cusack, 2018). Moreover, as first responders to alleged acts of criminality they are uniquely placed to identify and deploy essential pre-trial, procedural safeguards which have been specifically designed to protect and vindicate the personal, due process rights of crime suspects (Cusack, 2021; Zuckerman 1993). For these reasons, the capacity of Irish police officials to respond appropriately to the concerns of crime suspects at the initial, often traumatic, pre-trial stage of criminal proceedings has long been recognised as a major factor in shaping popular faith in the values, fairness and legitimacy of Ireland’s community-based policing service (Cusack et al., 2022).
For suspects with intellectual disabilities, the importance of adopting a tailored and calibrated police response is particularly acute. Indeed, research has shown that individuals drawn from this constituency are at once at a heightened risk of both misappreciating the nature of the legal caution and misunderstanding the due process rights to which they are legally entitled (Rogers et al., 2010; Gudjonsson & Joyce, 2011). Moreover, at the level of forensic interrogation, suspects with intellectual disabilities are likely to encounter significant cognitive and communicative challenges in constructing a clear and consistent exculpatory narrative (Brown & Geiselman, 1990; Cusack, 2018; Cusack, 2020; Detterman, 1979). Numerous studies, for example, have found that individuals with intellectual disabilites may be more suggestible, more acquiescent, more likely to confabulate and more likely to engage in nay-saying than their counterparts within the general population (Clare & Gudjonsson, 1993; Gudjonsson & Henry, 2003; Gudjonsson & Joyce, 2011). There is also evidence to suggest that such persons are more likely to obfuscate generic details about an alleged incident such as names, times and dates (Beail, 2002; Kebbell, Hatton, Johnson, & O’Kelly, 2001), that they will entertain a final option bias in response to closed-multiple choice questions (Heal & Sigelman, 1995), that their knowledge of the legal process is poor, and that they struggle routinely to comprehend legal terminology (Ericson & Perlman, 2001).
Any failure to adapt forensic procedures at the pre-trial stage of the criminal process to take account of the “ontological realities of intellectual impairment” (Cusack, 2017: 448), poses not only a material risk of eliciting inaccurate testimony, but also a wider, more pressing danger of securing a wrongful conviction through the admission of false, self-inculpatory evidence (Gudjonsson, 2010; Leggett et al., 2007). In Ireland, the stark danger associated with adopting an improper approach to investigative interviewing, especially in circumstances where a suspect is vulnerable, was highlighted in the Dean Lyons’ case where a 24-year-old, heroin addict – who was described as being “borderline learning disabled” (Birmingham 2006: 149) – falsely confessed to a double murder. A Commission of Investigation into the Dean Lyons Case was subsequently establishedto consider the forensic developments which contributed to the elicitation of his false admission of guilt (Birmigham, 2006). While the Commission ultimately concluded that there had been no deliberate attempt at an investigative stage in proceedings to undermine the rights of Dean Lyons, it noted that inappropriate leading questions were inadvertently asked of him by interviewing Gardaí, which equipped him with the information to maintain a credible (albeit false) confession.
In the aftermath of the publication of the Commission’s findings, and in contemplation of the publication of similar concerns by the Morris Tribunal with respect to police investigative practices (Morris 2006), an entirely new interview model – the Garda Siochana Interview Model – was mainstreamed in Irish policing operations (Noone. 2015). The mainstreaming of this reflective interview model across An Garda Síochána represented an important step in the direction of addressing the needs of vulnerable suspects (Smyth Committee, 2017). It also, importantly, built upon a series of existing procedural safeguards mandated by the Custody Regulations 1987 including the provision of a Notice of Rights document, and the introduction of a Custody Risk Assessment protocol (Cusack, 2021; Gulati et al., 2021).
Although these statutory measures were long regarded as representing a central procedural bulwark against improper police practice in Ireland (Seanad Éireann Debate, 1 July 1986), their effectiveness has faltered under recent scrutiny (Cusack et al., 2024; Cusack et al., 2022). Most notably, a recent (and landmark) qualitative inquiry into the perceived barriers which confront suspects with intellectual disabilities (Gulati et al., 2021), revealed a number of sites of concern with respect to the pre-trial protocols that exist for identifying and responding to intellectual disability:
Protocols need to be developed to support the provision of information and rights in an accessible format (such as easy read leaflets) as well as the provision of support to the PWID [person with intellectual disability] so that they understand critical information such as the reason for arrest, their rights (including the caution) and legal processes. Protocols in respect of the presence of a pre-trial safeguard for vulnerable suspects, similar to the “appropriate adult” facility in England and Wales, and establishment of a “registered intermediary” scheme for both vulnerable victims and suspects as proposed by the National Disability Authority in Ireland (National Disability Authority, 2020) need careful consideration with policies supporting consistent provision.
However, the findings from this empirical study must, it is submitted, be understood in light of emergent and unprecedented human-rights activism within the procedural infrastructure and cultural ethos of An Garda Síochána. Indeed, in the intervening period since this study was undertaken, there has been an ostensible transition towards a model of human rights-based policing in Ireland owing to the publication in September 2018 of a landmark report entitled The Future of Policing in Ireland which set out a vision for a “reformed and reinvigorated police service” (Commission on the Future of Policing in Ireland, 2018: vi; Cusack 2019). Significantly, a central component of this vision was the architecting of a new human rights infrastructure within the mindset, ethos and operations of all members of An Garda Siochana. At a policy level, this vision is reflected in An Garda Siochana Human Rights Strategy 2020-22 (An Garda Siochana, 2019). At a procedural level, meanwhile, this cultural emphasis on adhering to the values of rights-based law enforcement has prompted the introduction on a pilot basis of a series of important and ongoing pre-trial innovations which have been designed specifically to demonstrate an increased sensitivity for the needs and concerns of persons with intellectual disabilities. These include: (i) a review of custody risk assessment practices; (ii) a review of the Notice of Rights; and (iii) the launch of a pilot Disability Awareness Training scheme (Cusack et al., 2024).
In recognising then “the reverential juncture that the police station occupies in Ireland as the confluence site for a series of fundamental evidential, human rights and constitutional values” (Cusack et al., 2022), this paper seeks to excavate a clear, holistic understanding with regard to the procedural treatment of suspects with intellectual disabilities at the pre-trial stage of Ireland’s criminal process. In doing so, it will offer a portrait of an evolving eco-system which, in departing from its mainstream epistemic values, is demonstrating an increased sensitivity to the needs of suspects with intellectual disabilities. In building on this momentum, and in recognition of the potential transformative impact of the forthcoming An Garda Síochána (Powers) Bill, outstanding areas of concern are highlighted with a view to encouraging policymakers and police officials to take the necessary measures to further align Irish criminal procedure with the human rights exigencies mandated by international law.
References
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Defending Vulnerability 