In May 2016, two District Court hearings took place that were notable for the things they had in common, but also for the disparity in their outcomes.
In Letterkenny, a deaf man successfully appealed against his 2014 conviction for drink-driving on the grounds that gardaí were unable to provide an Irish Sign Language (ISL) interpreter following his arrest and questioning, and mistakenly assumed he could understand notes given to him in written English. In allowing the appeal by Gerard Doherty, who has poor literacy, the judge said: “I am not satisfied he appreciated what was fully going on. I have a suspicion but a suspicion is not enough. It would be dangerous to uphold the conviction”.
Just over a week later, on May 18, another deaf man, John McGrotty, who a few days previously had pleaded guilty to a number of charges of harassing and stalking his neighbours – GP Dara McEniff and his wife Eimear and their children – in Dungloe, was brought to the nearby Falcarragh district court after they complained of further harassment.
While Mrs McEniff was allowed to give evidence, Mr McGrotty was unable to because an interpreter was not available that day. However, instead of adjourning the case, Judge Paul Kelly then informed Mr McGrotty that he could either be remanded in custody or stay away from Donegal until sentencing the following month.
If your first or only language is not English, you can reasonably expect in 2017 that having an interpreter to help you give evidence in court would be a fundamental part of your rights under the Irish justice system. Yet the stark contrast in the outcomes of these two court hearings – both in Donegal, both involving deaf men for whom Irish Sign Language is their first language – strongly suggests that many deaf citizens still cannot take these rights for granted.
According to Mr McGrotty’s daughter, who was also at the hearing, Judge Paul Kelly decided to allow Mrs McEniff to give evidence despite there being no interpreter for Mr McGrotty and despite objections from his solicitor, Patsy Gallagher. Judge Kelly did ask Mr Gallagher and Mr McGrotty’s social worker and advocate, Declan Boyle, if they could communicate with Mr McGrotty in writing, but they said no because his literacy is poor. Nonetheless, he proceeded to give him the choice of custody or to go and stay with his daughter in Dublin until the next hearing on June 14.
Without an ISL interpreter, it is understood that Mr McGrotty, who does not speak or lip-read, could not meaningfully follow any part of the May 18 hearing, let alone give any evidence in his defence.
Afterwards, when word reached the Irish Deaf community via social media of Judge Kelly’s decision, an online petition condemning his failure to ensure an interpreter was provided garnered well over 1,000 signatures and was submitted to the Department of Justice.
It has since emerged this was not the first time the State had failed to ensure that Mr McGrotty had access to an interpreter.
According to his daughter, on the two occasions when Mr McGrotty was arrested by gardaí in 2014 and 2015 in connection with the alleged harassment, no interpreter was provided, a fact that emerged during an earlier hearing.
Although the first proper hearing had been scheduled for October 2015 (having been adjourned twice since June 2015), Mr McGrotty’s daughter says that it was only after she intervened and said they couldn’t proceed without an interpreter that the case was deferred again. According to the Sign Language Interpreter Service (SLIS), the agency which books interpreters, neither the Courts Service nor the Garda had made any requests for interpreters for Mr McGrotty until after October 2015.
Criminal cases like these based mainly on ‘he said/she said’ testimonies are always fraught with difficulty, but what seems clear is that on too many occasions Mr McGrotty had been denied his right to put forward his version of events.
On the morning of June 14, standing outside the old converted church that houses the Dungloe District Court as well as the local library, tourist information office and a café, John McGrotty is pleasant, good-humoured and chatty. It’s his first day back in the town after his enforced four-week absence from Donegal county. Amid the flow of local people walking in and out, a number stop to say hello or shake his hand. He is joined by his daughter, his social worker, Declan Boyle from Deafhear, and two ISL interpreters.
Also outside the courthouse is Elaine Grehan from Deaforward (an advocacy service run by the Irish Deaf Society), Lorraine Leeson of Trinity College Dublin’s Centre for Deaf Studies (which trains interpreters) and Haaris Sheikh, a consultant.
Ms Grehan had written to Judge Kelly outlining her organisation’s concerns about the failure to provide an interpreter at the last hearing, while Ms Leeson and Mr Sheikh are also following McGrotty’s case with acute interest. The two have been working together on the Irish element of a wider EU project called Justisigns, which looked closely at access to the justice system for Deaf sign language users.
“When we look at Mr McGrotty’s case, we would suggest that natural justice affords all citizens a right to respond; a right to know and understand the charges against them”, said Mr Sheikh. “Without an interpreter how is this possible? Whether it’s in Donegal or Dublin, whether it’s a speeding offence or a serious assault charge, an interpreter must be provided, and if one is not available, the judge should adjourn the case”.
In response to a Dáil question from independent TD Clare Daly on June 8, the Minister for Justice and Equality, Frances Fitzgerald, acknowledged that cases should be postponed where an interpreter cannot be found in time for a hearing.
Mr Sheikh says that it’s not always about “an intention to deny” access, but there is a need to understand the root cause of why the courts or Garda might decide not to provide an interpreter or fail to understand additional issues the person might have, such as mental illness or literacy problems. “You can’t assume that all deaf people are the same”.
While there is a range of other issues that still need to be examined, Mr Sheikh says their research found that cases that become problematic often have their roots at the first point of contact with the system, which is typically an interaction with a police force. With this in mind, one of the outcomes of the now-completed Justisigns project is the publication of a new e-guidebook for gardaí entitled, ‘You Have The Right to Remain Signing’. It aims to show officers how to communicate in sign language interpreter-mediated settings and explain in more detail about the work of these interpreters.
There are also issues that need to be addressed on the interpreter side, not least that the profession remains unregulated, and there is certainly no such thing yet as a registry of legal interpreters – which is also true for spoken-foreign-language interpreters. “Interpreters are not police officers, lawyers or advocates but they do need to understand the processes that they are operating within in order to be able to make sound decisions about their work”, said Ms Leeson.
But Mr Sheikh and Ms Leeson say progress is being made. For instance, they have been working with the Garda to explore how to produce a translation into Irish Sign Language of the Garda caution. They have also been focused on building a relationship with the Garda Racial, Intercultural and Diversity Office (GRIDO) in a bid to raise awareness of Deaf culture as well as Irish Sign Language.
Mr McGrotty’s daughter says she understands that some of her father’s neighbours and the local community might perceive him as a bit odd, but she says it’s simply because he is a deaf, non-verbal sign-language user. She doesn’t believe he was harassing the family, considering that much of what they perceive as harassment or aggression has been him trying – and failing – to communicate with them through gesture. Of course this has been persuasively disputed, and ultimately resolved by the court against him, after a guilty plea.
When the case came back in front of Judge Kelly Mr McGrotty was keen, after four weeks in Dublin, to get back to his home, but Eimear McEniff told the court she was equally anxious that he stay out of Donegal at least until his sentencing which was to be in September 2016.
Earlier, the court had heard at length how Mr McGrotty had been working over the past few months with Mr Boyle, who spoke of the progress that was made in helping him better understand the issues surrounding the case. He also explained how important it was to have qualified ISL interpreters involved at all stages. (Mr Boyle has only a limited knowledge of ISL)
After lengthy deliberation, including acknowledging that he had no previous convictions, Judge Kelly decided to allow Mr McGrotty to return to his home until last September but on a number of strict conditions, including to swear an oath that he understood them.
Judge Kelly commended Mr Boyle for his contribution, and also thanked the two interpreters, Cormac Leonard and Senan Dunne.
Even his daughter was happier, although still visibly bearing the anger about how the overall case had been handled by the gardaí and the courts.
A member of the ‘Irish Deaf History Archives’, a Facebook group, posted a clipping of a story from a local Wicklow newspaper about a District court case involving a deaf man charged with public drunkenness but who is let off by the judge with a caution because there was no sign language interpreter available. “I can only act on the evidence”, admonishes the judge. “I can’t take evidence against a foreigner or a deaf and dumb person without an interpreter”. When did this hearing take place? August 1909 – 108 years ago.
Following a series of further appearances and delays, John McGrotty was in fact finally sentenced on March 14, 2017 – to 18 months probation on two charges and a three-month suspended sentence, for a third charge. In all of those appearances, he had an interpreter in court.
Written by John Cradden
Additional reporting by Cathy Heffernan