Video link is probably the most familiar of support measures. It has been used in Ireland since the mid-90s and has almost become the norm as the means by which children or persons with an intellectual disabilty give their evidence in criminal proceedings in relation to certain offences. The legislation also allows for witnesses to give evidence by video link when they are over 18 with the leave of the court.  Video link means that the witness doesn’t have to be in the same room as the accused. The accused will be able to see the witness as will the jury so none of the witness’ demeanour will be lost but it means that effective cross examination can take place while minimising the stress for the witness.

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S. 13 (1)(a) Criminal Evidence Act 1992 allows for the support measure of video  link  for persons under 18  other than the accused  ie witnesses and victims for relevant offences. It's important to note that S.19 of the Act no longer allows for persons with a 'mental disorder' to avail of the provision under this section. ( see below)

 S. 3 (1)(b) Criminal Evidence Act 1992 allows for the support measure of video  link  for persons over 18  with the leave of the court for relevant offences. 

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Relevant offences are defined in Part 12 of the Act as :  

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(a) a sexual offence;

(b) an offence involving violence or the threat of violence to a person;

(c) an offence under section 3 , 4 , 5 or 6 of the Child Trafficking and Pornography Act 1998 ;

(d) an offence under section 2 , 4 or 7 of the Criminal Law (Human Trafficking) Act 2008 ;

(e) an offence consisting of attempting or conspiring to commit, or of aiding or abetting, counselling, procuring or inciting the commission of, an offence mentioned in paragraph (a), (b), (c) or (d);

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The Domestic Violence Act 2018 has expanded this to include ss.33 ( contravention of safety and  barring orders), 38 (offence of forced marriage)  and 39  (offence of coercive) of that Act. 

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s. 13(1A) now allows for a victim of an offence other than a relevant offence  to give his or her evidence via videolink in relation to any offence. This is a major development brought in by the Criminal Justice (Victims of Crime) Act 2017 .This was only commenced on the 30th May 2018 so it will be interesting to see how it will work in practice.  So far the provision has only been commnenced in the Central Criminal Court, the Dublin District Courts and the Dublin Circuit Courts. (See SI 173/2018)

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S. 13(1A) states :

In any proceedings (including proceedings under section 4E or 4F of the Criminal Procedure Act 1967 ) relating to an offence, other than a relevant offence, a court may, subject to section 14AA, grant leave for a victim of the offence to give evidence, whether from within or outside the State, through a live television link.

Why the court may decide to allow videolink for a witness will be based on s. 14AA of the Criminal Evidence Act 1992 (as amended by the Criminal Justice (Victims of Crime) Act 2017 ; This states

14AA. The court, in deciding—

(a) whether to grant leave under section 13(1A) for a victim to give evidence through a live television link......

.........

shall have regard to the need to protect the victim from secondary and repeat victimisation, intimidation or retaliation, taking into account—

(i) the nature and circumstances of the case, and

(ii) the personal characteristics of the victim.”,

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There are a couple of things to note regarding videolink under  s.13 Criminal Evidence Act 1992

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It was left out of the amendment to s.1 Criminal Evidence Act 1992 so there is no restriction in relation to commencement of proceedings

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s.1 Criminal Evidence Act 1992 states 

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Short title and commencement.

1.

(1) This Act may be cited as the Criminal Evidence Act, 1992.

(2) This Act (except Part III and section 29) shall come into operation three months after the date of its passing.

(3) Part III and section 29 shall come into operation on such day or days as may be fixed therefor by order or orders of the Minister for Justice and different days may be so fixed for different purposes and different provisions; and, in particular, any of the provisions of sections 13 to 16 and section 29 may be brought into operation on different days for different courts and for different circuits and district court districts.

(4) (a) The provisions of this Act (other than Part III F1[(except sections 14A, 15, 16(1)(b), 18 and 19A)] and section 29) shall not apply to criminal proceedings instituted before the commencement of the provisions concerned.

(b) For the purposes of paragraph

(a) criminal proceedings are instituted—

(i) when a summons or warrant of arrest is issued in respect of an offence,

(ii) when a person is arrested without a warrant, or

(iii) when a person is remanded for trial pursuant to Chapter IV of Part V.

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It was also deleted from s.19 Criminal Evidence Act 1992 through the Criminal Justice (Victims of Crime Act)  2017  so a person with a mental disorder will not be eligible for it under that section any longer. 

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s.19 Criminal Evidence Act  1992 now states 

 

Application of Part III to persons with mental handicap ( 'Mental handicap' is still in the margin title.)

 

19.—The references in sections 14, 14B, 15 and 16 to a person under 18 years of age shall include references to a person with a mental disorder, within the meaning of section 5 of the Criminal Justice Act 1993 who has reached the age concerned.

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This means that a person who is not a victim , is over 18 years of age and who has a mental disorder will have to apply for the use of  video link under s.13 (1)(b) Criminal Evidence Act 1992  i.e. 'with the leave of the court' but only where it is a relevant offence.  The case of DPP v Dunbar (2011) may be useful here where the Court stated that there were no criteria laid down by the legislation as to when the use of videolink may be granted so it is up to the Court itself to decide. It is hoped that the minimisation of stress and the maximisation of the evidence will be significant factors for the court to consider.  The principles of DPP v Donnelly (1995) will  still be relevant here in terms of modification to the manner of the  examination of the witness which alleviate   the stress of testifying but which do not undermine the rights of the defendant.  

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Another provision for the giving of evidence is s. 39 Criminal Justice Act 1999

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S.39. Witnesses in fear or subject to intimidation

(1) Subject to subsection (2), in any proceedings on indictment for an offence (including proceedings under Part IA of the Act of 1967) a person other than the accused may, with the leave of the court, give evidence through a live television link.

(2) A court shall not grant leave under subsection (1) unless it is satisfied that the person is likely to be in fear or subject to intimidation in giving evidence otherwise.

(3) Evidence given under subsection (1) shall be videorecorded…….

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Unlike s. 13 Criminal Evidence Act 1992 which states  'in any proceedings’, s. 39 is limited to indictable offences even though the full provision does mention District Court proceedings in relation to the Crimnal Procedure Act 1967 (so as to include pre-trial depositions).  However, for child witnesses, this provision widens the use of the support measures where they are not a victim to contexts beyond offences in the Criminal Evidence Act 1992. The provision does give the court wider latitude to facilitate the testimony of a child complainant or child witness at trial as it is probable that a child will be in fear when giving evidence. The accused is excluded from applying for use of the provision but an application may be made for both defence and prosecution witnesses. 

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Most significantly, the provision under s.39(2) is only available, after an examination and assessment by the court of the extent of fear and intimidation  on the part of the witness as well as how the use of the support measure may diminish the fear or intimidation of testifying.  There is no stipulation as to what the necessary evidential basis for the application e.g.: a medical report from a medical practitioner or a report from a member of An Garda Síochána. In addition, similar to s.13 Criminal Evidence Act 1992 there is no provision that the court may apply the special measure of its own motion.  It is suggested that the court through its inherent jurisdiction may suggest an application where it considers that one would be appropriate.

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Video link facilities were not generally available in every county up until relatively recently. Proceedings would have had to be transferred to another jurisdiction if required . However, the Courts Services confirm that video link facilities are available in all counties: 

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'All counties now have video technologies installed. Prior to the pandemic there was video link installed in 15 counties. As part of the Courts Services modernisation plans, the remaining 11 counties have now been brought on stream.'

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The constitutional challenges of  White v Ireland ([1995] 2 IR 268) and Donnelly v Ireland ([1998] 1 IR 321) in the 90s indicate that there was some resistance to the support measure when it was first introduced as it assisted the witness give evidence. Anecdotally there now seems to be less resistance to the provision by defence practitioners as the television screen may assist in minimising the impact of the testimony. The testimony of a witness whio is physically in court may be far more powerful. Ideally in any given situation, in consultation with the family, friends and legal advisors; the witness should consider all the options and consider the advantages and disadvantages of giving evidence via videolink . However, it shouldn’t be forgotten that without videolink many witnesses would find it almost impossible to give evidence in court.

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