‘Innocent until proven guilty’ is not some trifling cliche. It is the bedrock of our criminal justice system. It does not admit to the cutting of corners.
No one wants to see rapists escape justice, but their conviction must be the product of a fair trial.
My greatest concern about the Gillen proposals in sexual offences cases centres on the direction of travel on cross-examination.
[Specifically, in his plan for reforming how sex trials will work Sir John Gillen recommends “early pre-recorded cross-examination” for alleged victims of sexual offences, instead of quizzing them live in the presence of a jury].
Fair but unfettered cross-examination is key, in my view, to a fair trial.
Often in these cases it is the word of the accuser against that of the accused. Thus, the cross examination of each can be critical.
It is frequently cross examination which separates the wheat from the chaff in terms of credible evidence. Equality of arms in such cross examinations is essential.
Of course it is harrowing for someone who says they were raped to give evidence – likewise, sometimes, for the one accused of rape – but their evidence still needs to be tested, fairly but rigorously.
The Gillen proposals suggest special measures for the accuser. Though starting with cases where children are involved (and here this proposal has most appeal), he embraces the concept that in time these measures should apply to every accuser. They include pre-trial recording of the cross examination, which would not be in front of the jury, but later played to them.
Maybe most surprising of all is the suggestion that counsel for the defence would have to submit for judicial approval the questions he/she intends to ask!
Any justification in the case of vulnerable children does not carry over to adult accusers, but the Gillen proposals favour such carry over.
Cross examination can not be scripted. It is answer led, not judge led. I know from my experience cross examining in multiple trials that sometimes an unguarded answer can lead you to mine a hitherto unknown seam of truth, with significant impact on the outcome. So, to me, the notion of scripted and approved questions, particularly in adult trials, is a dangerous absurdity.
Removing cross examination from the presence of the jury I find bizarre. The cross examiner does not operate in a vacuum. Some jurors take notes, so often you pace things accordingly. Sometimes you can detect a line which interests the jury and you might dwell on it, or, more likely something has emerged during the trial that needs to be explored. But none of that is possible if the cross examination is done weeks before.
Likewise in the real world disclosure of material by the prosecution can be sporadic, maybe because at the outset the material seemed of no relevance. But if the cross examination is over, it’s too late, or else the trauma of recall of the accuser would be necessary.
Not only does this direction of travel on cross examination seem to me antithetical to a fair process, but the precedent it establishes will create the template for similar demands in other trials.
Likewise, with the proposal to exclude the public from the trials of serious sexual offences. Why not the same for cases of extreme violence or pornography or murder?
Open justice means public justice. I, therefore, believe the default position should be all trials in public but with a judicial power in cases of extremis to override that in specified and particular circumstances.
There are matters in the Gillen proposals I most certainly approve, for example clamping down on social media abuse, but I find some aspects of these proposals very questionable.
• Jim Allister, QC, became a barrister in 1976. He practised until he became an MEP in spring 2004, mainly working as defence counsel. Today he is leader of the TUV, and its North Antrim MLA. A year in the making, The Gillen Review published its final report in May, and was immediately hailed by Sinn Fein, SDLP, Alliance and a string of campaign groups. It has 253 recommendations for changing how sex offences are handled in the justice system – proposals which have stirred major concerns within the legal profession itself