EX-JUDGE CALLS FOR BAN ON PUBLIC AT NI RAPE TRIALS
...but his proposals for legal reform rule out anonymity for defendants in sex cases
SIR JOHN GILLEN DRAWS UP REFORM PROPOSALS IN WAKE OF RUGBY CASE
HE STOPS SHORT OF SUGGESTING DEFENDANTS SHOULD GET ANONYMITY
AND TELLS HOW HE HAD ‘HARROWING’ MEETINGS WITH SEX CRIME VICTIMS
A RETIRED appeal court judge has recommended that members of the public should be banned from attending rape trials in Northern Ireland.
But Sir John Gillen, who also proposed legislation to curb the ‘inappropriate’ use of social media during trials, yesterday ruled out giving anonymity to defendants.
The draft recommendations are among 220 proposals in Sir John’s review ordered by the Criminal Justice Board into how serious sexual offence cases are dealt with here in the wake of the high profile trial of Ulster Rugby stars Paddy Jackson and Stuart Olding.
The pair were acquitted of rape after a nine-week hearing earlier this year.
The case at Belfast Crown Court attracted huge publicity across the UK and in the Republic, as well as highly controversial commentaries on social media where the woman at the centre of the trial was identified despite her right to anonymity.
There were also reports that the public gallery at the Laganside court complex was regularly filled with people who had travelled from all over Ireland to attend the trial.
Sir John said one of his reasons for recommending that the public should be barred from rape trials was that many complainants had told him that they found the prospect of giving their innermost details in court humiliating, in front of what the retired judge called “the cruel gaze of the public”.
“We are a very small jurisdiction and in towns such as Strabane, Derry or Newry everybody knows everybody very often, and the prospect of the complainant’s legal right to anonymity just disappears once you have the public in,” said Sir John.
He has also proposed that complainants should have publicly-funded legal representation from solicitors or from barristers in “certain areas” if, for example, their previous sexual history was going to be explored during a trial.
He also suggested that victims should be referred to in court throughout a trial by cyphers rather than by name.
Among his other key recommendations are proposals to introduce legislation to “manage the dangers created by the inappropriate use of social media”.
Sir John said that social media publishers should be made liable for “legally objectionable” material contained on their platforms.
He revealed that Northern Ireland was part of a cross-jurisdictional study about social media being carried out by the Westminster government.
He said: “You cannot have a situation where juries are exposed to not only inaccuracies but absolute lies at times during the course of a trial — with pictures of the complainant circulating that aren’t even the complainant.”
Sir John called for the introduction of a new offence with prison sentences for jurors who breached judges’ directions not to look at social media material.
Even though he has come out against anonymity for accused people, Sir John has also proposed that suspects shouldn’t actually be identified until they are charged, though he admitted that opinion was split over that question more than any other issue.
He said he had talked to a large number of defendants who had been acquitted and there was no doubt that the repercussions for them were enormous, with some of them losing their jobs or having to leave the country amid ‘there’s no smoke without fire’ claims.
Sir John said: “I have spoken to people with mental health problems over the accusations made against them and the refusal by the public to accept that they were acquitted.”
He said suspects should have anonymity pre-charge, citing the cases of Sir Cliff Richard and Christopher Jefferies, the schoolteacher wrongly suspected of involvement in a murder in England.
“But once you are charged the key component is that jurisdiction after jurisdiction including Northern Ireland have instances where other complainants come forward.”
Sir John’s proposals include one for complainants, including children and vulnerable people, to have their cross examinations by barristers pre-recorded away from “the daunting atmosphere” of a court.
“In Scotland every single complainant in a serious sex case is considered as a vulnerable witness and that’s my view,” said Sir John. He also rejected calls for the press to be excluded from rape trials, saying the concept of open justice was a very important principle.
Sir John dismissed calls for judges and advisors to conduct rape trials without juries but said that jurors should be shown a video at the start of cases debunking the myths surrounding rape.
“It’s a societal problem,” he said. “And the myths include that ‘she didn’t fight back’ or ‘she didn’t scream or call for a friend therefore she consented’ or she ‘didn’t report it right away’ or ‘only gay men get raped’ or ‘women can’t be raped by their husband or partner’ and ‘these women are making this up’.”
He added: “These are absolute myths that need to be explored along with the absolute calumny that because young women dress fashionably or have a few drinks that somehow that is contributing towards what happened to them.”
He said he had no idea what the phrase “provocative clothing” meant.
Sir John said that at the pre-trial, ground-rules hearings, judges would “robustly” tell the defence lawyers that they wouldn’t permit any of the ‘myths’ to be introduced as ques-
❝ In Scotland every single complainant in a sex case is considered a vulnerable witness and that’s my view
tions during the hearings.
Sir John said that if the questions were introduced, judges would have the power to stop the proceedings and order a re-trial.
He said he wanted to be able to tell complainants that judges will not allow attacks on their characters because they were wearing “a fashionable short skirt or had a few drinks”.
Sir John said he was concerned by the “vast” problem of under-reporting of rape, with figures from England suggesting that only 17% of people report serious sexual offences to the police.
He added that under-reporting was far lower among marginalised people here like black, Asian and ethnic groups, the LGBT community and among the disabled, the elderly and Travellers.
He said men also came into that category.
Sir John added the attrition rate, whereby complainants didn’t proceed with their cases, was high — up to 40% — and conviction rates were low for sexual offences, he conceded.
Sir John pointed out that the average time in completing a rape trial here was 943 days — 69% longer than for other Crown Court cases here — which he described as “simply unacceptable”, especially as the figures are twice those in England.
He proposed a range of measures to tackle the delays in bringing rape cases to trial, claiming there was a “sense of organised hypocrisy over the issue” in that little or nothing was ever done about it.
He said the matter of disclosure in rape cases had to be tackled with the appointment of specialist officers in the police and Public Prosecution Service who would work closely together right from the start of cases to prevent injustices and complainants dropping out.
Sir John recommended the introduction of time-limited proceedings with the earlier engagement of defence lawyers and the scrapping of committal hearings.
The retired judge said the principle of consent was another important issue which had to be examined in depth.
“It’s been described as a quagmire. It’s an extremely difficult, technical area. The definition we have in the legislation at the moment is too vague.”
Sir John said he could see a role for restorative justice in sexual offences but only if the victims wanted it.