A prominent QC has issued a warning over any moves which may “tilt the scales of justice in favour of a conviction”, following a major report about overhauling how NI courts handle sex cases.
Chris Daw was speaking to the News Letter after the Gillen report was published in full yesterday; it began in April 2018 in the wake of the acquittal of Paddy Jackson, Stuart Olding and their co-defendants in relation to an allegation of rape.
A barrister for the last 26 years, who practises out of chambers in both London and Manchester, Mr Daw voiced concern in particular about jurors being directed to ignore what the report describes as “rape myths”.
Although he talks repeatedly about the low conviction rate for sex crimes in his review, retired judge Sir John Gillen said the purpose of the review “was not to increase convictions but rather to ensure complainants and accused persons alike receive a fair and just outcome”.
His report contains 253 recommendations, including:
~ The general public be barred from trials;
~ Courts move towards pre-recording cross-examinations of complainants so they are not quizzed live in court;
~ No anonymity for people charged with sex crimes (whilst also extending the current automatic anonymity available to complainants to beyond the point of their deaths);
~ Measures at the outset of trials “to combat rape myths, for example, jury educational material, a short video and written judicial directions”.
On this last point, Sir John said judges “should revisit the current directions” which jurors get at present.
He also said that would-be jurors should be screened for “signs of rape myths” before being enrolled; that judges should “robustly intervene” when lawyers raise myths in court; and judges themselves should be given “extensive training” in the subject with the aid of “outside bodies”.
When it comes to defining rape myths, Sir John gives a raft of examples, including that it is a myth to say “false allegations are common”.
He further notes examples of myths provided by the PPS are that “victims ‘cry rape’ when they regret having sex or want revenge” and that “rape is a crime of passion”.
‘Futile and wrong’:
Mr Daw’s work as a barrister has seen him act for two retired superintendents during the Hillsborough Disaster inquest, plus ex-England captain John Terry when he was found not guilty of racially abusing a fellow player, among other cases.
He is also working on a five-part BBC series about the UK justice system to air later this year, and recently wrote for The Spectator about the growing numbers of students he is asked to represent who have been accused of rape after a night out.
When it comes to Sir John’s idea of judicial intervention to combat rape myths, Mr Daw said: “We do have such directions in England and Wales already. My view on that is it is completely wrong.
“Because, unlike any other category of case, you don’t have judges telling juries how people do or don’t behave when it comes to making allegations of non-sexual assault or fraud or any other thing.
“For me the difficulty with this is that you are just deliberately and systematically looking to tilt the scales of justice in favour of a conviction, rather than leaving the jury to do its job, which is to assess the evidence on both sides without being influenced by the judge giving them, as it were, a steer as to which direction they should go in.
“I think it’s unfair and dangerous for a jury to be given directions that effectively are deliberately intended to undermine what may be the defence - that a false allegation has been made.
“It seems to me that what is happening here is you’re taking a case where there’s been outcry about the verdict [the Jackson-Olding case], and you’re looking in future cases to reduce the number of acquittals...
“If the jury is not sure, on the question of consent in particular (which tends to be the most important issue in most of these cases), then the defendant should be acquitted.
“Just giving the jury more and more reasons to disbelieve the defendant is again just fundamentally unfair.”
In his experience, when judges do give direction about rape myths, “I don’t think in practice they have had a large impact on juries’ verdicts, because juries – rightly – don’t like being told what to think by the judge ... so it’s a futile exercise, but one that’s wrong in principle”.
Public bans, anonymity, and victims high and dry:
When it comes to some of SIr John’s other proposals, Mr Daw said of the idea that the public should be banned from rape trials: “There is an argument I think in some trials for the public gallery not being visible to the jury...
“Clearly members of the public shouldn’t be influencing the jury by shaking their heads or mumbling or staring at the jury – that does happen frequently, and judges have to tell people in the public gallery not to do it. I understand that.”
He said this could potentially be achieved by the use of one-way glass, for example, said there is nonetheless “a fundamental right of members of the public to attend and watch trials”.
Like Sir John, Mr Daw said he does not favour anonymity for defendants, saying whilst there are dangers of “false allegations being made because of publication of the name of the accused”, there are also cases where “a number of reliable allegations have been made by others who perhaps have had the courage to come forward”.
And on the subject of post-death anonymity for complainants he likewise sides with Sir John: “It’s not unheard of rape complainants to be elderly. It’d be a particular concern saying ‘well if I were to die next week, could this potentially be publicised?’”
Ultimately, he is in agreement with Sir John’s assessment that sex offence complainants are ill-dealt with, and recommends a big investment in victim support for them.
“I’m absolutely of the view that rape complainants and sexual offence complainants are badly treated by the system as it stands,” said Mr Daw.
“And they need a huge amount of extra support throughout. But I just don’t think trying to tilt the table in favour of convictions is the answer to that, because that will lead to more wrongful convictions and ultimately that doesn’t help genuine complainants.”
Cost and political will:
Sir John Gillen has said implementing all his recommendations would mean “significant financial commitment”.
He added “political will ... may prove to be the most important element in the exercise” – but that it could be possible to progress some changes within weeks.
Sinn Fein’s victims’ spokesperson Linda Dillon said: “While the level of reporting of sexual offences has increased over the last year, it is still unacceptably low.
“Following John Gillen’s recommendations, all parties and agencies must get to work immediately to ensure these recommendations are implemented and the procedure surrounding serious sexual offences is updated.”
DUP MP Emma Little Pengelly said: “It is good to see the final report published, in which elements are common sense improvements. Whilst it is incredibly frustrating that a lack of a functioning Executive isn’t able to drive transformation in this area forward, it must not deter the justice system from implementing elements which can be easily and quickly resolved.”
Meanwhile, Victim Support NI was among a string of groups hailing the review, describing it as “the culmination of months of listening to victims and survivors of sexual violence”.