David Lorimer

The Gillen Report to the Criminal Justice Board on reform of the law on serious sexual offences in Northern Ireland was linked to in Scottish Legal News recently, undated and to date unpublished on the Gillen Review website. The linked document contains 16 key recommendations and 253 specific recommendations.

They are extensive and will be costly to implement. The budget for the legal training recommendations alone will no doubt be measured in millions of pounds and will be a continuing requirement, and the cost of the educational ‘awareness campaign’ recommended to educate the public on societal and sexual myths would likely be along similar lines – cultural misconceptions will not be schooled away overnight. In an ideal world, of course, no expense should be spared in order to do things right. Realistically however, it is unlikely that all 253 recommendations will be approved in full and the difficulty with such a ‘holistic approach’ is that when items get cut the holistic ambition devolves to a cherry-picked solution.

If this all seems somewhat negative, that is unfortunate, because the Gillen team have clearly taken out the magnifying lenses and the scalpels and worked very hard to dissect the problems minutely within the current framework of the law. Sadly, the current framework of the law is antiquated.

Take the rigid adherence to the requirement for a jury, except when, according to Gillen’s recommendations, the defence should ask for a judge-led trial in order to protect the accused from the pressures of public pre-judgement and bias and ‘where the judge considers it to be in the interests of justice’. Now, the paradigm of a jury of one’s peers is perhaps as mythological, even cosmetic, these days as many other inherited constitutional and socio-legal ideals, considering that the vast majority of criminal prosecutions do not actually go to trial, let alone get decided by a jury. The desire for society in Northern Ireland to unify by engaging publicly and collectively wherever possible in order to progress away from the sectarian troubles of the not too distant past is certainly an understandable jurisdictional issue. Just how much such a driver should be prioritized in the ‘finding of fact’ around a sexual offence however is questionable and it would have been a small but significant act of balance to allow the piloting of an option for a complainant (or the complainer, in Scottish terminology) to be able to similarly request a non-jury trial. It may, of course, be that an accused would generally prefer a jury and that a complainant would not (an interesting observation, even indictment, on its own), but let us look more closely at the consequences of Gillen’s judge-led option for the accused with respect to the law as it stands.

The Gillen Review has 16 specific recommendations about ‘cross-examination on previous sexual history’, made (indeed like many of the other 237 recommendations) in order to avoid testimony in court that would incur bias on the part of the jury. So what happens when the accused asks for and gets a judge-led trial and there is no jury? Does the same judge hold a hearing to decide whether he should hear potentially prejudicial testimony at trial? Clearly a ludicrous idea. Or does another judge make that decision? Not so ludicrous but still somewhat ridiculous. Or does the judge just get to hear everything, thereby allowing the accused to be tried on the basis of all the facts available? Let’s examine that idea a little further.

In a recent Scottish case, evidence which could have been favourable to the accused was not allowed on one view of relevance where ‘the probative value was slight in relation to the central issue’ because it was seen as ‘an inappropriate intrusion into the complainer’s dignity and privacy’. Now without getting into jurisdictional nuances, or the debate about what is commensurable and what is not, or detailing issues surrounding prejudgemental assumptions with respect to the impact of one adminicle of evidence on the body of evidence as a whole (a holistic view?), it is evidently possible that in a ‘judge-led’ case of this kind there could be additional substantive advantages for the accused in that it would allow all the facts to be considered together - the case in point related to admissibility of evidence of a previous consensual sexual relationship between the complainer and the accused with respect to belief of consent.

Of course, such cases may not be considered to fall within the ‘interests of justice’ discretion recommended by Gillen – in which case the question would be, well, why not? If the legal profession is to be better trained in the understanding and fair evaluation of such evidence as suggested by the training recommendations in Chapter 15 of Gillen’s Review then couldn’t the judiciary be trusted to make a better assessment of the facts than a randomly selected jury? And if that’s the case for the accused, shouldn’t the complainant be similarly able to request such a private trial where prejudices can be curtailed rather than adminicles and where issues of public humiliation, dignity and privacy recede into discreet judicial consideration? Why does only the accused get the option of going for a judge-led trial when all the empirical data indicates that it is complainants who desperately deserve the benefit of such a mechanism? Ultimately such an option for complainants could prove economically, legally and humanely the best way forward - although a single judge in such circumstances might be better supported by one or two other appropriately informed or representative personnel.

The idea of piloting pre-trial separate legal representation is promoted at recommendation 41 in Gillen’s Chapter 5. Shouldn’t the piloting of a complainant’s option for a judge-led trial therefore also be a recommendation?