Defendants in rape trials should not be anonymous, says judge

Retired Court of Appeal judge Sir John Gillen has recommended that defendants in rape cases in Northern Ireland should be named once charged.

While defendants, unless they are convicted, have anonymity in the Republic, he said he did not favour any change to the law in the North. The Republic is the only common law country that allows such anonymity, the judge noted.

In his preliminary independent report into how the law in Northern Ireland handles serious sexual crime cases, Sir John wrote, "Despite the severe consequences, both physical and mental, often suffered by accused persons [and their close family members] who have been acquitted of serious sexual offences, together with the public opprobrium often visited on them [and their families], I currently consider there are two key reasons for maintaining the status quo."

Firstly, there was “clear evidence” that publishing a defendant’s name “serves to bring forward other complainants, for example, in institutional abuse or serial offender cases”.

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He said that, secondly, it was extremely difficult to justify defendant anonymity “in serious sexual offences and not in other heinous offences such as murder, crimes of unspeakable cruelty to children and other offences of non-sexual extreme violence”.

His review of the legal system in the North was prompted by the huge publicity that was generated after Ireland and Ulster Rugby players Paddy Jackson and Stuart Olding were acquitted of raping a then 19-year-old Belfast student following a trial that lasted eight weeks.

Rallies were held in Dublin and Belfast in solidarity with the woman at the centre of the trial following the jury’s verdict last March.

The public was permitted to attend the trial, which became a source of controversy, as was the extent of social media commentary. At one stage the name of the student was released on social media.

Key recommendations

Sir John, among his 16 key recommendations, said “new legislation should be developed and introduced to manage the dangers created by social media”.

The retired judge also justified his argument for excluding the public from rape trials, apart from those close to the defendant and complainant, and the media.

“I fully appreciate that a criminal trial is a public event,” he said. “The principle of open justice puts the judge and all who participate in the trial under intense scrutiny. The glare of contemporaneous publicity ensures that trials are properly conducted. It is a valuable check on the criminal process,” he said.

“However, open justice is never an absolute concept,” he added, pointing out how the public was excluded from family and youth justice cases.

“In the context of a small jurisdiction with local courts, public familiarity with the complainant is often present,” added Sir John.

He said there also was the possibility of “jigsaw identification” where information about matters such as locations, addresses, schools, friends and family members “could all be easily pieced together locally to identify” complainants.

“Confidence-building measures for complainants who fear the cruel glare of public exposure, particularly in high-profile trials in front of packed public galleries, are now vital,” said Sir John.

The judge said that “eventually” provision should be put in place for early pre-recorded examination of complainants to be conducted away from the court setting in serious sexual offence cases.

Steps must be taken to “combat excessive delay in the justice system” and there was a “clear need for increased awareness” of the existence of and reasons for the vast under-reporting of serious sexual offences and the high dropout rate from such cases. It is estimated that just one in six rapes are reported in Northern Ireland.

Myths

Sir John also said he was anxious to challenge the myths about rape which included: victims who drink alcohol or use drugs are asking to be raped; victims provoke rape by the way they dress or act; victims cry rape when they regret having sex or want revenge; victims who remain in an abusive relationship are responsible for any rape that follows; and false allegations are rife.

The public is invited to make its views known on the preliminary report with the consultation running until January 15th next year.

The review was commissioned by the North’s Criminal Justice Board last April. The Gillen review team is supported by an advisory panel made up of representatives of victim groups, the NI Human Rights Commission, the judiciary, the PSNI, the Public Prosecution Service, those with legislative responsibility for justice and the law, the wider legal profession and those with an academic view.