Major concerns raised by lawyers over ideas to overhaul sex cases

The Bar of Northern Ireland, covering over 600 barristers, voiced concerns about a string of key ideas in the Gillen report whilst it was being prepared – many of which have made it into the final report.

Separately, the Law Society, representing about 3,000 solicitors, strongly objects to continuing the practice of publicly naming people who are accused – one of the Gillen report’s key planks.

Whilst campaigners and some politicians have demanded Sir John’s recommendations must be adopted as quickly as possible, there has been almost no consideration of what lawyers themselves think of them.

Sinn Fein was so enthusiastic for example, that one of its MLAs suggested Sir John’s recommendations be accepted before they were even published.

The whole process began in spring 2018, when retired judge Sir John Gillen was asked to look at how sex cases are handled after Paddy Jackson, Stuart Olding and their co-defendants were acquitted in relation to an alleged rape.

A year in the making, his report contained a colossal 253 recommendations.

They include: Judges giving directions to jurors at the very outset of trials to combat “rape mythology”; Pre-recording cross-examinations of complainants; Banning the public from trials; Giving extra legal representation to complainants; And continued naming of defendants who are on trial.

Sir John’s final report was published on May 9.

But while he was preparing it he published an early draft to give a flavour of his thinking, and asked for views on those draft proposals.

The Bar of NI was among the groups to respond, and the News Letter has now combed through its detailed response.

It shows, point-by-point, the concerns that were raised over the following measures:

• Judges giving directions at the start of trials to combat “rape myths”

Sir John says such myths can range from notions about people’s clothing to the idea that “false allegations are rife” – and judges should direct jurors to disregard them.

The Bar of NI said there is “no research to show that the present approach of our highly experienced Crown Court judges is proving inadequate”.

It adds: “[Juries] are exhorted to bring life skills and common sense to bear on their assessment of the witnesses, while bearing in mind what they have been told about the burden and standard of proof.

“We should therefore be careful not to presuppose juries are less capable of being true to their oath in sexual offence cases than in other cases.”

What did Sir John say?

That research is indeed needed with “real jurors”, but the reaction to his consultation gave him “no reason to alter” his plans.

Leading British QC Chris Daw has previously told the News Letter that he is opposed in principle to any such judicial directions, saying: “Just giving the jury more and more reasons to disbelieve the defendant is again just fundamentally unfair.”

Meanwhile world-renowned author Lionel Shriver has also voiced concern about such ideas, noting that judges do not systematically try to erase ‘burglary myths’ or ‘murder myths’ from the minds of juries, for example.

• Extra legal representation for alleged victims

Sir John wants to see a publicly-funded lawyer provided to represent complainants’ interests. This would be separate from the existing publicly-funded prosecution team.

The Bar of NI said there was “no evidence” prosecution barristers are “allowing complainants to be treated unfairly” under the present arrangements.

It noted that there is huge pressure on public funding, adding that if this idea becomes a reality in sex cases “then complainants in other criminal cases, such as serious non-sexual violence, may also expect to be similarly entitled”.

What did Sir John say?

Such representation need not be expensive (it may in fact shorten the length of trial), and can help in “reducing attrition and thus may increase current conviction rates”.

• Pre-recorded cross-examinations for alleged victims, as opposed to quizzing them during the trial

The Bar of NI has “concerns as to the presentational nature of pre-recorded cross examination evidence”, saying it is something “best observed by the jury in the court room where they can see the advocate’s approach to questioning and the interaction between counsel and witness”.

Another of its “major concerns” is how such a system would cope with late disclosure of evidence.

Before any cross-examination can happen, the whole case must already have been investigated and lawyers must have all evidence before them, it said – or else the complainant risks just being recalled for more questioning.

This would mean there would be no way of promising an alleged victim that their pre-recorded questioning would be a “once-and-for-all” experience.

What did Sir John say?

Sir John acknowledged there are “genuine concerns”, but when a similar scheme was tried in Liverpool, “disclosure had not surfaced as an insuperable problem” and witnesses were recalled only “in the rarest of instances”.

He also quoted the Women’s Regional Consortium saying “the process in court brings about a real risk of re-traumatisation and secondary victimisation”, so pre-recorded testimony should be permitted.

• Ending public access to trials

Sir John said this is required to avoid “the cruel glare of public exposure”.

But the Bar of NI said that lawyers indicate “public attendance at serious sexual offence trials is extremely low”.

It also questions what the point of excluding the public is anyway, if measures including pre-recorded video cross-examinations are being used.

And since Sir John’s report concerns itself with “serious sexual offences”, it questioned “how it will be possible to define exactly which offences would qualify” for public exclusion.

Ultimately it fears this “could signal the beginning of the public being excluded more widely” – something which “would undoubtedly have a detrimental impact on open justice and the rule of law”.

What did Sir John say?

In his final report, Sir John acknowledged that “usually very few people in fact attend serious sexual offence cases”.

But he therefore suggested that “the exclusion of the public will have little effect on the public itself but may be of an inestimable value to complainants and for that matter, some accused”.

He regards it “as a modest intrusion into the principle of open justice”.

• Continued naming of defendants

Whilst the Bar of NI did not object to the continued naming of defendants who are on trial, it was probably the biggest point raised by the Law Society (which otherwise posed relatively few objections to Sir John’s ideas).

Currently such anonymity is granted in the Republic of Ireland, but not the UK.

The Law Society said in its written submission to Sir John’s early draft, which the News Letter has examined: “In cases of serious sexual assault, it is usually one person’s word against another’s. The implications of naming an accused, who is later found ‘not guilty’, will not be cured by that not guilty verdict.”

It said there is “a potential for people jumping on a bandwagon if an accused is named”.

It dismissed the commonly advanced argument for naming the accused – that it will bring forward more complainants. If they are convicted, their name will enter the public domain at that point, the Law Society said.

When it comes to people who are ultimately acquitted, Suzanne Rice, president of the Law Society, told this paper: “If their name has become public during the course of the court proceedings, you can only then imagine the impact that’s going to have on that individual. There is a section out there particularly amongst members of the public of ‘no smoke without fire’...

“Once it’s out there, it’s hard to then sort of shut the stable door after the horse has bolted.”

She added defendant anonymity is something the Law Society will “continue to advocate for, seeing it is working relatively successfully in other jurisdictions”.

What did Sir John say?

While there are “compelling arguments on either side” on defendant anonymity, it “would be fundamentally unbalanced and unfair” to make sexual offence defendants anonymous, but not defendants in other serious crimes.

Overall in his final report, Sir John said he realised that for some people his recommendations go “much too far proposing legal and procedural changes, which will be either too expensive or too radical”.

However, “the overwhelming majority of respondents have come out in favour of the thrust of the majority of all of the recommendations”.

The Bar of NI in a statement said: “Sir John is to be commended for his engagement with a wide range of stakeholders”, and it would “consider the final report in full”.

The News Letter asked Sir John for an interview. We were told he did interviews when the review was published and to direct any further queries to the Justice department.

See MORNING VIEW: Trial review deserves rigorous political and media scrutiny