The Preliminary report following a consultation exercise by Sir John Gillen has made over 200 recommendations. The headline is that members of the public (except for close family of the complainant and the accused) would be banned from attending serious sexual offences trials. This is the only way to minimise the identification of a complainant.This review follows a high profile rape trial where four men were acquitted of a number of offences including rape. The retired judge took soundings from as many sources as possible (he advised he met over 200 organisations and individuals) and was assisted by a large advisory group.
Sir John also addressed the “humiliating and distressing” cross examination of complainants in a move which follows the recent debate in the Dail (Irish Parliament) when a TD (Irish MP) displayed a thong in protest at comments made by a defence counsel about the underwear worn by a complainant in a rape trial. This action has resulted in a campaign on social media similar to the campaign following the Belfast trial. He made 29 recommendations in the area of cross examination of which 11 would require legislation.
The impact of social media is another area of concern for Sir John and he has suggested legislation should be considered. Again in a mirror announcement in Dublin it has been suggested that texting or tweeting from the court should only be allowed by members of the legal profession who have professional requirements not to undermine the process.
Sir John met some accused who had been acquitted and had campaigned for anonymity for both complainant and accused and heard the “harrowing impact” the trials and accusations had had on them and their families. He has recommended that anonymity be extended to those under investigation, but not beyond the point when they are charged, as he felt the potential for others to come forward was a balance needed in trials where it is often one person’s word against another.
He has made recommendations to try and combat the issue of rape myths and stereotypes which can influence a jury. He even considered if serious sexual offences should be tried without a jury but concluded that the current system can prevail. He has however recommended that in exceptional circumstances an accused could apply for a non-jury trial if the publicity around the hearing would be so great as to render a fair trial impossible.
While this is a preliminary report it does give a significant insight to the issues addressed and the extent of the recommendations likely to arise. The current political impasse in Northern Ireland will impact on these recommendations as they have with the recommendations from Sir Anthony Hart following the HIAI as there is no clear path for the necessary legislation to be enacted at this time.
Authored by Fintan Canavan, partner, BLM Belfast