Supreme Court judge proposes ‘rebalancing’ of criminal trials to protect victims

Plan seeks more positive experience for victim while protecting defendant rights

A Supreme Court judge has suggested proposals for "rebalancing" the criminal trial process so as to achieve "real" protection for the rights of victims, particularly those alleging rape and sexual assault.

Implementation of the proposals would potentially lead to more positive experiences for victims while still protecting a defendant's rights, according to an article co-authored by Mr Justice Peter Charleton and Orlaith Cross, a judicial assistant to the Supreme Court.

The authors suggest greater pre-trial engagement between prosecution counsel and victim witnesses as well as consideration of whether only appropriately trained lawyers and judges should deal with sexual violence cases.

Greater judicial control of the cross-examination of victims, especially in rape and sexual assault cases with multiple defendants, is suggested as preferable to separate representation for victims, which would raise constitutional and other issues.

In the Belfast rape trial, the woman making the allegations was cross-examined by four barristers over an eight-day period, the authors note.

Entitled “Towards a Presumption of Victimhood – Possibilities for Re-Balancing the Criminal Process”, the article was published in the Judicial Studies Journal of Ireland.

‘Presumption of innocence’

It notes that many maintain that the constitutional right of an accused to a trial “in due course of law” enshrines a balance that necessarily favours those at risk of losing their liberty, rather than victims.

The authors stress they are not proposing “upsetting the presumption of innocence” but rather encouraging “a reappraisal of how victims are treated within a system in which they have been on the periphery for so long” and considering what might still be done “to provide real protection for victims and their rights”. What is sought is “some balance”, they say.

The Victims Directive and the 2017 Criminal Justice Victims of Crime Act 2017 mean that, while accepting the “inescapable principle” of proving a case beyond reasonable doubt, the status of a complaint that proceeds to court involves consideration of entitlements of the victim.

Presuming victimhood simply ensures anyone coming to court making, for example, a rape allegation “is treated in a sensitive manner”, recognising they “may have been subjected to a violating encounter, even if the accused is not guilty of rape”.

It is not enough just to provide information to victims, they say. A victim is required under legislation to be treated as a presumed victim, with a single point of contact, priority of information and, where there is a particular trauma, concerning the listing of the trial. The right to a private life raises issues including possible separate representation in the absence of the jury where pre-trial disclosure is sought from a victim, they suggest.

‘Periphery’ feeling

Addressing calls by victims’ advocates for separate legal representation at trial for victims, the authors say that might require “a complete reconfiguration” of the criminal trial process, and possibly a constitutional amendment “for what may not be an urgent reform”.

A possible alternative is that victims, even of sexual violence, become entitled to a closer encounter with prosecution counsel, they say. That could include an early meeting perhaps involving only the “non-suggestive” discussion of the victim’s account; any need for a further statement and the possible lines of defence. The rule against “coaching” of witnesses must be strictly observed, they stress.

The DPP retains control but this approach might alleviate the feeling of some victims of being “on the periphery”.

Lawyers, it is suggested, may need to be trained in dealing with vulnerable witnesses.

The relevant professional bodies and State parties engaging counsel and solicitors might insist on that, the article suggests.

The “ticketing” of lawyers, meaning only those trained appropriately in relation to the vulnerable can take on such cases, might be considered, they suggest. It might also be questioned if ticketing should be required for judges and counsel in sexual violence cases, the article adds.

They also say “self-serving” written statements made by accused persons who do not give evidence, deserve to be “approached dubiously” because there is no oath or cross-examination involved.

Such statements should be accompanied by a warning from the trial judge while statutory reform to put them on the same footing as an unsworn statement from the dock might also be considered, they suggest.

Noting that intrusive questioning about prior sexual history has been reformed by statute, the authors also suggest a “closer focus” on what might assist further in that regard.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times

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