Tuesday 17 September 2019

Question of anonymity for accused rapists considered as part of sex offence cases review

Justice Minister Charlie Flanagan (Liam McBurney/PA)
Justice Minister Charlie Flanagan (Liam McBurney/PA)

Cormac McQuinn Political Correspondent & Luke Byrne

The question of whether or not an accused rapist should have anonymity during trials is being considered in a review of how sex offence cases are conducted, justice minister Charlie Flanagan has said.

Legal expert Tom O’Malley was asked by the government to chair a working group to examine how such trials are carried out in the wake of the Belfast Rape case.

He is to deliver a report within weeks.

Mr Flanagan said the issue of anonymity for defendants prior to conviction forms “part and parcel” of Mr O’Malley’s study, while saying he did not want to pre-empt the outcome of this work.

It comes after a legal review of the case in Belfast recommended that defendants in the North should continue to be named after they have been charged.

Defendants accused of rape in the South keep their anonymity until they are convicted, unless naming them would identify the victim.

The Belfast trial ended in the acquittal of all four defendants including Ireland rugby player Paddy Jackson who was found not guilty of rape.

The subsequent review by retired judge Sir John Gillen recommended that defendanta in rape cases should continue to be named.

In his preliminary report he said that publishing names in rape cases can lead to other complainants coming forward, giving the example of institutional abuse or serial offenders.

The report also said it is difficult to justify anonymity in serious sexual offences while not allowing it in other “heinous” offences like murder.

Mr Gillen’s review says that the Republic of Ireland is the only common law country that allows anonymity in rape cases.

Mr Flanagan was asked by reporters if he envisaged that situation being changed as part of Mr O’Malley’s review of how rape cases here are conducted.

He was also asked if complainants would have greater access to their own legal representation.

He replied: “These issues are the subject matter of Tom O’Malley’s report”.

Mr Flanagan said Mr O’Malley, a lecturer in law at NUI Galway, has been in close contact with stakeholders like the Gardaí, DPP and Courts Service.

He said that from what he’s read of the review in Northern Ireland, it will “assist us in terms of formulating best practice within our own jurisdiction notwithstanding a difference of emphasis in many of the legal practices and procedures.”

Asked again if Mr O’Malley’s review will consider the issue of anonymity, Mr Flanagan replied: “This is an issue that again will form part and parcel of his review.”

But he added that he didn’t want to pre-empt the outcome.

He said: “I’m not going to speculate as to what may of may not be in the report.

“What I’m very keen to do is receive the content of the report at the earliest opportunity and then bring proposals to government to act”.

Mr Flanagan was speaking as he announced details of how a second  study on Sexual Abuse and Violence in Ireland (SAVI) will be carried out.

The last one was published in 2002 and Mr Flanagan confirmed the next survey, to be carried out by the Central Statistics Office (CSO) will take the bulk of five years to conclude.

That means it will be finished in 2023 at the earliest, more than two decades after the last report.

Mr Flanagan said the goal in future will be to carry out such a report at least every ten years.

Specialist expertise and training will be required for the survey involving sensitive questions being asked of 5,000 people to be carried out.

Funding of €150,000 has been made available to the CSO in 2019 for research the survey will be smoothly implemented to get robust and reliable data.

A pilot survey is to take place following two years of preparation and the Department of Justice said the project will take place between 2019 and 2023.

Mr Flanagan said “I’m concerned at perceived under-reporting of instances of sexual violence across society.

“I’m very keen that we have hard data.”

He said the new survey will be different to the last one, taking into account the changes in society since 2002.

Mr Flanagan said he is convinced that the new research will provide the State with information that “will inform us in terms of legislative change and in terms of social policy well into the future.”

He also said: “This is a major body of work – SAVI II. I expect that it will take the bulk of five years to conclude.”

He said support groups for those affected by sexual violence will continue to be funded by government to acknowledge “the work that they do on a daily basis, on a 24/7 basis for vulnerable witnesses in court cases and for victims often of horrific instances of sexual crime and abuse.”

Meanwhile, judges should be required to instruct rape case juries to disregard all evidence they hear from defence lawyers proposing an alleged victim’s clothing suggests consent, the director of the Rape Crisis Centre has said.

It comes after Mr Flanagan said he hoped protocols could be introduced for lawyers surrounding the introduction of clothing evidence in such trials.

“Without a doubt it is a normal part of any sexual assault case to introduce a range of issues such as the victim’s clothing, suggesting it as evidence of consent,” Noeline Blackwell said.

“That does need to be challenged.”

Ms Blackwell, director of the centre and a lawyer, preferred the introduction of ‘practice directions’ for judges.

“This would require a judge to say at the end of the trial when charging the jury to come up with a verdict ‘you have heard evidence about clothing, you are to disregard this evidence because it is not relevant to the charge’.

“This way, lawyers would eventually stop trying to introduce the issue of clothing as evidence of consent.”

Practice directions are rules judges must follow in presiding over a case and if they are broken, could leave any verdict open to challenge on the basis a jury was incorrectly instructed.

Ms Blackwell said this would still allow defence barristers to raise the issue in a court and not leave it open to accusations of an unfair trial.

“It’s important to remember that the victim in such cases, because they are not represented, require special protection from the judge,” she said.

Ms Blackwell said there was a similar requirement in the UK, within the Crown Court Compendium, which judges there follow.

Speaking on RTÉ’s Claire Byrne Live, Mr Flanagan responded to controversy which has raged since a senior counsel told a Cork Circuit Court jury they had to consider an alleged rape victim’s underwear.

The justice minister said he didn’t feel there were any circumstances where reference on the part of the defence counsel to the style, or clothing, that a woman at any time wears is acceptable.

“What we see in a criminal court case… is often times a full-blooded defence, where under our criminal law code a person is innocent until proven guilty, and often times the defence counsel will use whatever means are available and I don’t think that’s acceptable.

“And I do believe this will form part of the review that’s being undertaken and I would hope that we could introduce protocols for lawyers and indeed for everybody involved in the courts system,” he said.

Executive Director of the Irish Council for Civil Liberties, Liam Herrick, also backed the minister’s comments.

He said one of most important aspects of victims of crime law is that courts may give directions about evidence concerning a victim's private life in order to prevent re-traumatising the victim of sexual offences “where the admission of that evidence is not required by the principles of justice."

“The use of certain types of clothing as persuasive evidence of consent is extremely problematic and feeds into a wider context of pervasive rape myths and stereotypes, which extend not only to the clothing a victim was wearing but their sexual history and their drug or alcohol consumption,” he said.

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