It’s worth looking at the European approach to rape trials

While there is much to commend our adversarial system, it is a difficult experience for victims

Complainants in the Republic  are entitled to separate legal representation in circumstances where an application is made to the court to cross-examine them on previous sexual history. Photograph: Getty Images

Complainants in the Republic are entitled to separate legal representation in circumstances where an application is made to the court to cross-examine them on previous sexual history. Photograph: Getty Images

 

While we have no cause for complacency in this jurisdiction, we can, nevertheless, take some comfort from the recently-published preliminary findings and recommendations of an inquiry by Sir John Gillen into the law and procedures in serious sexual offences in Northern Ireland.

The limited comfort we can take arises from the fact that some of the recommendations made are already in place here.

For example, the report favours excluding members of the public from the courtroom. This has been the case in this jurisdiction since 1990 when the Criminal Law Rape Amendment Act of that year replaced section 6 of the Criminal Law Rape Act 1981, and provided that any court which is hearing a case of rape or serious sexual assault should exclude all persons from the court save those directly concerned in the proceedings, bona fide representatives of the press ,and such other persons (if any) as the court may in its discretion permit to remain.

In recommending that Northern Ireland adopt similar legislation, Gillen noted how this approach had been endorsed by senior judges, the attorney general and members of the bar in this jurisdiction.

Again, unlike in Northern Ireland, complainants here are entitled to separate legal representation in circumstances where an application is made to the court to cross-examine them on previous sexual history.

There are calls in this jurisdiction to extend this to complainants who do not wish to disclose their medical records or counselling notes. There is no good reason to reject this call, and Gillen recommends separate representation in both circumstances.

When it comes to jury directions we need to be mindful that false or exaggerated complaints are sometimes made

Myths

In Chapter 6 of his report Gillen talks about myths surrounding serious sexual offences, sets out a number of examples as to what these myths may include, and goes on to say that in order to combat these myths local research needs to be commissioned to ascertain their prevalence and extent in Northern Ireland.

However, without waiting for that research, he says in the next paragraph: “We should also introduce educational material which could include a short video outlining the fallacy of these matters and judicial directions to this effect for the benefit of educating jurors at the very commencement of the trial, together with, if necessary, expert evidence on the subject.”

One might be forgiven for thinking that Gillen has a poor opinion of Northern Ireland jurors when it comes to trying serious sexual offences.

On the other hand, I think it would be fair to say that it is the experience of judges in this jurisdiction that jurors carefully consider and weigh up the evidence in such cases, take their oath seriously, and do not require the kind of directions that Gillen suggests Northern jurors require.

Finally, when it comes to jury directions we need to be mindful that false or exaggerated complaints are sometimes made. Indeed, on Wednesday last this newspaper reported that a woman in Kerry had falsely accused a man of raping her.

Reading the Gillen report one gets a clear sense of his profound disquiet at the way victims in Northern Ireland have experienced their criminal justice system. The problem may in part be due to the nature of the adversarial system which we have committed to as the most effective way of achieving justice. But the question needs to be asked, is there a more humane way of achieving justice?

Is there something to be said for the inquisitorial system when it comes to trying serious sexual offences?

Newspaper coverage

When I was a solicitor we occasionally had trainee lawyers from Germany, Italy and France working with us. I remember one of them expressing great surprise at the extent of newspaper coverage given to criminal trials, and also asking if we Irish had some kind of obsession with sexual offending.

These observations may not prove very much, but one wonders if the kind of concerns being raised by victims in Ireland, particularly about the criminal justice system, are shared by people in similar situations in other European countries? I suspect not, or at least not to the same extent.

Given that we will soon be the only common law country in the European Union perhaps this is the time to consider a radically different approach to the way we now investigate and try serious sexual offences.

In recent weeks there has been much public concern expressed about remarks made by defence counsel in her closing speech to the jury at a rape trial in Cork when she commented on an article of clothing worn by the complainant. Unfortunately the debate and discussion about what was said has taken place in the absence of the full facts.

Perhaps the public outcry is justified, but we need to remind ourselves about the protections built into a criminal trial.

First of all it is the trial judge’s responsibility to ensure a fair trial. This means being fair to all parties and not just the accused. It also means ensuring witnesses are treated respectfully.

The Minister needs to prioritise the speedy investigation of serious sexual complaints by ensuring that the Garda Síochána has the necessary resources to do this

If the trial judge took the view that the remark was inappropriate, irrelevant, disrespectful to the complainant or unwarranted by the evidence, then she could have so addressed the jury.

If no comment was made by the judge during her charge, and counsel for the prosecution thought that one should have been made, then he or she could have asked the trial judge in the period immediately following the charge to right the situation.

High standards

Finally, the high standards of the Irish criminal bar need to be acknowledged, as well as its highly effective if informal self-regulation.

The Minister for Justice, Charles Flanagan, said on Tuesday that he hoped to have the recommendations of a working group reviewing the investigation and prosecution of sexual offences chaired by Prof Tom O’Malley either by the end of this year or early next year.

One matter addressed at some length by Gillen and part of the working group’s remit needs no report from anyone for action to be taken. The issue is delay.

It is now taking in excess of three years from the time of complaint to trial date. This is a disgrace.Prosecutorial delay of this order constitutes an act of cruelty against a complainant . It is also unfair to accused persons. We seem to have forgotten that justice delayed is justice denied.

The Minister needs to prioritise the speedy investigation of serious sexual complaints by ensuring that the Garda Síochána has the necessary resources to do this.

He should ensure that there are no other unnecessary delays along the way, and commit the Government to reducing prosecutorial delay by 50 per cent over the next 18 months.

Garrett Sheehan is a former judge of the Court of Appeal

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