Legal loopholes highlighted by McDermott brothers abuse case
Shocked. Betrayed. Failed by the justice system.
Those were the emotions felt by those who were abused by the McDermott brothers, and many others who lived in the village of Donagh.
The sense of anger was captured in a report published by Criminal Justice Inspection in November 2010.
The inspectors had been commissioned by the Northern Ireland justice minister, David Ford, to assess how the various agencies he was responsible for had fulfilled their responsibilities in relation to the McDermott case.
They concluded that the cases were well managed by the criminal justice system throughout, and there was particular praise for the PSNI and the investigating officer in the case.
But the survivors and many others living in the Donagh area were angry that two of the brothers, Owen Roe and James McDermott, escaped being sent to prison because they were found unfit to plead.
On 26 November 2009, a jury at Omagh Crown Court found that Owen Roe and James McDermott had committed all the acts specified in the charges that had been laid against them.
They included 20 counts of indecent assault, attempted rape, threat to kill and common assault.
But because Owen Roe and James McDermott had been deemed unfit to plead, under the terms of the Mental Health (NI) Order 1986, they could not be sent to prison.
A third brother, John McDermott, was jailed for nine years and will then be on probation for a further three years.
There were four options open to the sentencing judge.
The first, a complete discharge, could not be considered because their acts were so serious.
Two other options, hospital or guardianship orders, were also ruled out because the court was told the brothers did not satisfy the criteria, and there were doubts about the durability of the orders if made.
The only remaining option was a supervision and treatment order.
These provide supervision and assistance while the individuals live in the community. The purpose of the treatment they receive is to maintain and improve the mental well-being of the individual and, where appropriate, reduce the risk of harm to the individual and others.
But even then the hands of the judge were tied.
Imposing a two-year order on each of the two brothers, Judge McFarland told the court: "I would have preferred to make the order for longer but the legislation does not allow for any longer period." (in June 2011 the maximum term for these orders was increased to three years).
The fact that the two brothers were not being sent to prison, and the duration of the orders imposed, shocked those they had abused.
That was exacerbated when it was announced that the brothers were to be allowed to return to their home in Donagh.
The inspection report said the fact that the brothers had lived at home for two years while on bail awaiting trial meant no alternative residence was considered when they were found to have committed the offences they were charged with.
Inspectors said: "It was felt by the court that the community would be better able to protect its children since the perpetrators were well-known locally".
Those they had abused, and many others in the Donagh area, did not share that view.
"The extent of the shock to the survivors and their families cannot be underestimated," the inspectors said.
"They anticipated that the brothers would be compulsorily removed from Donagh, most probably to Carstairs hospital in Scotland.
"From their point of view the destination was irrelevant, as long as Owen Roe and James McDermott did not return to the area."
The report also said: "They had not contemplated that anyone in authority could seriously consider allowing the brothers' return to Donagh."
In terms of how the survivors were treated, the report summarised their views in the following terms.
"The ultimate conclusion left them feeling that, although they had been treated with respect, they were ancillary to the justice process and their voice had not really been heeded."
The report highlighted a weakness in the criminal justice system when dealing with such cases.
Inspectors pointed out that there was no structured or formal opportunity for the survivors or local community to explain the impact of having the brothers continuing to live locally after years of sustained abuse.
While medical experts and social workers were able to submit reports to the court to consider before sentencing, the victims of abuse and other members of the community were not able to outline their feelings and fears.
Justice Minister David Ford said he would close that gap, and has done so. In February this year he introduced community impact assessments for those crimes that have the greatest impact on community confidence.
Those who have suffered as a result of crime can make individual victim impact statements outlining the impact the offence has had on their lives, but concerns about the wider impact on a community can now also be considered.
Community impact assessments require the police or other agencies to identify and consult with the community to collate their views about the impact of an offence. These views are then used to compile a community impact statement that will be provided to the court after a person has been convicted of a crime and before the judge passes sentence.
To date, no community impact statements have been submitted to a court in Northern Ireland.
The CJI report also highlighted the anger of the survivors about the fact that the brothers could not be sent to prison because they had been deemed unfit to plead due to diminished mental health capacity.
"This indicated from the survivors' perspective that the law considered Owen Roe and James McDermott's welfare was of greater importance than their pain and suffering," the inspectors said.
"They felt this was unfair and expressed strong dissatisfaction that in their view, mental health legislation had trumped criminal justice legislation."
The report said the survivors were focussed on seeing that mental health laws were changed to ensure that such an outcome would not be possible in similar cases in the future.
David Ford promised action. He met the survivors in 2010 and they say he told them new legislation would be introduced by September 2011.
More than two and a half years after that date, there is still no new mental health bill for Northern Ireland and history suggests it could be some time before any new laws are introduced.
Six years ago, a year before the McDermott brothers were arrested, Professor David Bamford, published the findings of a review of mental health and learning disability. The Bamford Review recommended the creation of new mental capacity legislation for Northern Ireland.
Three years ago the health watchdog, the Regulatory Quality Improvement Authority, produced seven recommendations in a report commissioned by the Department of Health. The department says all of the recommendations within its remit have either been actioned or are in the process of being actioned.
This includes developing new mental capacity legislation in collaboration with the Department of Justice.
In February last year, David Ford launched a consultation on proposals to extend mental health capacity legislation.
In a statement, the department said the work is ongoing on legislation "which it is anticipated will be brought to the assembly at the turn of the year".