Sir John Gillen
This post is by way of a coda to my recent post Corrupted Justice. It is an object lesson in how justice is eroded.
The Right Honourable Sir John Gillen, a former Lord Justice of Appeal, is leading a review of the law and procedure in prosecutions of serious sexual offences in Northern Ireland. The provisional report has been made available online and a consultation process is underway pending finalising and publication in January 2019. The Executive Summary is more easily digested than the full report.
What prompted the review? The report alludes to public reaction to recent trials in Northern Ireland. Clearly what is meant is the trial of four men, two of whom are famous rugby players for Ireland and Ulster, for a range of charges including rape and gang rape. All four were acquitted on all charges. Many people were unhappy with the verdict. Although the Gillen report also alludes to “the outcry in England over a series of collapsed trials, and issues around disclosure failings” it is unlikely that the review would have been undertaken if the verdict in the rugby payers’ trial had been “guilty”. What does that reveal about the direction of the driving force behind the review?
The stated purpose of the review is to determine whether current arrangements in Northern Ireland deliver the best outcomes for victims, defendants and justice, and to make recommendations for improvements. However, the slant of the review can be anticipated from the fact that the Terms of Reference declare the intention that,
“The review will consider the ‘victim’s journey’, from the initial complaint through to the point of court disposal. It will take appropriate account of the views of individual victims and victims’ organisations, legal practitioners, and the criminal justice organisations involved in the conduct of such cases.”
…whilst the Terms of Reference display no counterbalancing concern about justice being done from the perspective of the accused. This skewed concern is evident throughout. Sir John provides a Preface, which ends with this,
“I finish…with four beliefs that I formed within days of taking up this task and to which I have remained wedded throughout this odyssey into serious sexual offences. They form the very spine of this Review and course through all my recommendations.
- First, the massive under-reporting of these crimes and the high attrition rate are unacceptable in a society that lays claim to the rule of law.
- Secondly, the pathway from initial complaint through to trial is too steep, too long and too unwieldy for both complainant and accused. It needs urgent reform.
- Thirdly, the current trial process is too daunting for complainants and needs radical revision.
- Fourthly, many of the problems in the present law and procedure spring from the culture within which we all currently live. Positive affirmative education on the realities of serious sexual offences and their consequences must be given not only to juries actually hearing these cases but, perhaps more importantly, to the public at large if we are to embrace a truly just, fair and civilised concept of the rule of law.”
Pause to think about what “affirmative education of juries” might mean. This will feature further below.
In his task, Sir John is supported by an advisory panel made up of,
- representatives of victims’ groups;
- the Northern Ireland Human Rights Commission (NIHRC);
- the Police Service of Northern Ireland (PSNI);
- the Public Prosecution Service (PPS), i.e., of Northern Ireland;
- the National Society for the Prevention of Cruelty to Children (NSPCC);
- the judiciary and members of the legal profession;
- those with legislative responsibility for justice (i.e., politicians);
- and those with an academic view.
I don’t think it would be contentious to observe that victims’ groups will naturally have a biased perspective. And one would have to be rather remote from reality to regard the NSPCC, or the academics who are likely to be consulted, as being neutral parties. The same, unfortunately will probably apply to the overwhelming majority of politicians. I confess to ignorance regarding the NIHRC, the PSNI and the PPS, but if they are similar to their counterparts in England and Wales, namely the EHRC, the police forces and the CPS, then you cannot have been paying attention if you expect lack of bias. (See this post for the EHRC, and for the CPS…well, where do I begin? See the posts under Sexual Assault / Rape in the Index). So that leaves just the lawyers as representing the only hope that Sir John’s review will not be wholly biased towards the complainants’ perspective…hmm, yes that’s how bad it is.
Sir John notes in the Preface to his provisional report, “a system that unflinchingly prosecutes perpetrators needs a police and prosecution service that are properly funded to meet these needs”. In the light of that comment, ask yourself which of the bodies involved in the above advisory panel are not likely to be influenced either by ideology or by funding considerations?
Sir John places great weight on the issue of “massive under-reporting” of sexual offences. However, I have three difficulties with the claim,
- Firstly, the report is specific to Northern Ireland but no data on under-reporting of sexual assault in Northern Ireland is available, so the claim is unjustified within the legal jurisdiction in question;
- Secondly, no evidence is presented that the under-reporting of sex offences is greater than that of other serious crimes;
- Thirdly, recourse is made to data from England and Wales in supporting the contention of under-reporting, but, as I explain below, it appears that the most recent data has not been used and does not support the claim. This potentially undermines a key part of Sir John’s argument.
The first of these bullets is justified by para 2.28 of the Gillen report, “The statistics branch of the PSNI advised their analysts do not hold any statistics on the under-reporting of sexual offences. We sought statistics from the PPS and the Department of Justice but none were held. This is a gap that needs to be filled in Northern Ireland.”
In respect of the third bullet, the relevant extracts from the report are,
(para 2.26): “There is reportedly massive under-reporting of these crimes on a scale few of the rest of us fully appreciate. Individuals, males and females alike, do not report the incident. The Office for National Statistics in February 2018 published ‘Sexual Offences in England and Wales’ and looked at this issue. Those who had experienced rape or assault by penetration (including attempts) since the age of 16 were asked who they had personally told. Nearly one third of victims (31%) had not told anyone about their most recent experience, while 58% told someone they knew personally and 30% told someone in an official position. Only around one in six (17%) had told the police.”
(para 2.32): “Based on aggregated data from the Crime Survey for England and Wales in 2009/10, 2010/11 and 2011/12, on average, 2.5% of females and 0.4% of males said that they had been a victim of a sexual offence (including attempts) in the previous 12 months. This represents around 473,000 adults being complainants of sexual offences (around 404,000 females and 72,000 males) on average per year.”
Para 2.26 is based on lifetime experience, whereas para 2.32 in based on annual data for 2011/12 and earlier years. However there have been two marked changes in recent years, i.e., since 2012, which suggest that these paragraphs no longer represent the current position. The CSEW estimates of the incidence of sexual assaults, and especially rapes, have reduced markedly, whilst the number of reports of sexual assaults, including rapes, to the police have increased markedly.
Figure 1 shows the huge increase in the rate of reports of rape to the police in England & Wales between March 2012 and June 2018. Data was taken from “Crime in England and Wales: Appendix Tables”, 18 Oct 2018, (June 2018 dataset). It is clear that data from 2012 and earlier is no longer indicative.
Figure 1: Police reports of rape in England & Wales – click to enlarge (note the different scales)
The decease in the CSEW estimate of rapes of adult women has been similarly marked. In years 2010/11 and 2011/12, the CSEW reported about 1% of adult women (aged 16 to 60) had been raped in the preceding year (excluding attempts). In years 2014, 2015 and 2016 the CSEWs reported that this had fallen to 0.3%. Data was taken from “Appendix Tables, Focus on violent crime and sexual offences”, 9 Feb 2017, (Mar 2016 dataset). These percentages can be converted (crudely) to numbers of rape victims by multiplying by 160,000 per percent per sex. The error on these estimates is perhaps about +/-23% (based on Figure 1.1 from “An Overview of Sexual Offending in England and Wales, Ministry of Justice, Home Office & the Office for National Statistics, Statistics bulletin, January 2013”). Figure 2 shows the CSEW-based estimates of the number of rapes of adult women compared with the number of police reports of the same. The CSEW estimates do suggest huge under-reporting of rape in year 2012 and earlier. But the position now appears rather different.
The CSEW based estimate of the number of rapes of adult women in the year ending March 2016 is in the range 40,000 to 63,000. This compares with the number of police reports of rapes of adult women in the latest year (ending June 2018) of 36,000. Figure 2 indicates that the CSEW and police statistics may be approaching convergence. The claim of “massive under-reporting” appears to no longer be valid.
Figure 2: CSEW-based estimates of the number of rapes of adult women compared with the number of police reports of the same – click to enlarge
In passing I note that under-reporting of adult male rape seems to persist (Figure 3). The CSEW data in Figure 3 is all over the place due to small statistics in the surveys. However, there does appear to be a persistent under-reporting of male rape, and perhaps an increasing underlying incidence. The Gillen report notes that,
(para 2.27): “Men are even less likely to report rape, with only around 4% of male complainants likely to report rape. Men may be less likely to report for fear of being disbelieved, blamed and exposed to other forms of negative treatment.”
Figure 3: CSEW-based estimates of the number of rapes of adult men compared with the number of police reports of the same – click to enlarge
Although the Gillen report alludes to the failures of disclosure in the English jurisdiction in 2017/18, where the issue was several near miscarriages of justice, there is scant evidence of any great concern over this issue which caused public disquiet in England. The tone of the Gillen report throughout is an emphasis on gaining more convictions.
Para 21 states, “the conviction rate is troublingly low in serious sexual offence cases”. The percentage of cases which result in convictions may be low compared with other crimes, but the attitude that this is “troubling” is a value judgment based on an unproveable presumption that too many of those who are acquitted are, in fact, guilty. This is a presumption common amongst feminists/rape activists, but which has no evidential basis.
It is certainly true that there is a huge attrition of rape cases through the criminal justice process, i.e., the number of prosecutions is a very small fraction of the number of police reports. There appears to be a desire in some quarters to find guilty all those prosecuted as a form of blood-payment for others who are not brought to justice.
At the time of writing we await a new review by Professor Cheryl Thomas of UCL into the effectiveness of juries in rape trials. In her 2010 review of this subject she concluded that, contrary to popular belief and previous official reports, juries in rape trials convict more often than they acquit, with a 55% conviction rate in crown court rape trials. However, she will find a lower conviction rate now. In 2017 the number of convictions for rape was 1,127 out of 3,141 proceeded against (36%), noting that these data cover offences against both sexes (see the CPS Violence Against Women and Girls Report, 2017-18). In 2010 Professor Thomas also concluded that,
- “Jury conviction rates for rape vary according to the gender and age of the complainant, with high conviction rates for some female complainants and low conviction rates for some male complainants. This challenges the view that juries’ failure to convict in rape cases is due to juror bias against female complainants.
- Juries are not primarily responsible for the low conviction rate on rape allegations.”
Sir John opines that a range of “rape myths” are prevalent amongst juries and that these myths prejudice their perception of the case. (Para 9, “concerning are myths around rape which need to be robustly challenged”). In this opinion he aligns with the feminist/rape activist lobby, perhaps because that is the advice he has received from his advisory panel. Para 44 lists 13 claimed rape myths, for example: “rape is a crime of passion” and “false allegations are rife” are said to be myths.
The claim that rape is not about sex but about power is a central tenet of the feminist/rape activist position. It is a gender-political position, not a statement of fact. On what basis does Sir John Gillen make this claim?
There are two things that one can say about the prevalence of false rape allegations: firstly, no one knows what it is, and secondly, it is not at a negligible level. Evidence in support of the latter contention is the ease with which, earlier this year, I found 146 cases of false allegations amongst the general public in the UK in recent years, plus a further 70 allegations of sexual offences against politicians or celebrities in the UK of whom about 50 or 54 were probably innocent of criminal wrong-doing (see Corrupted Justice).
Who, on Sir John’s advisory panel, would counter the claim that the prevalence of false allegations is negligible? There are a number of “citizens” groups who could do so, but none would be granted a seat at the table, I expect. De facto, they were not.
In reference to the sorts of rape myths listed in para 44, Matthew Scott, a criminal barrister at Pump Court Chambers, wrote recently in The Spectator, “If there was a ‘rape myth’ it is that these stereotypes (i.e., the so-called rape myths) are routinely employed in a court of law. Defence lawyers are not allowed to simply ‘rubbish the character of the witness.’ Specific and relevant instances of ‘reprehensible behaviour’ can sometimes – with the permission of the judge – be put to witnesses, but if advocates attempt to ‘rubbish’ anyone’s character, then one of at least three things will almost certainly happen: they will be stopped from doing so – probably very sharply – by the judge; their own client’s bad character will become fair game for the prosecution; or, the jury will turn against them: jurors tend to hate bullying advocates, a fact drummed into young barristers throughout their training.”
Para 119 states, “The fact of the matter is that there is massive under-reporting of serious sexual offences and, of those who do come forward, an unacceptable number then drop out”. I have argued above that, on the contrary, the CSEW estimated incidence of rape of women is beginning to align with the number of police reports of such rapes (in England & Wales). Moreover, evidence has not been presented that the under-reporting of sex offences is greater than that of other serious crimes. So the claim of “massive under-reporting” is very challengeable, at least as regards rape of women.
Furthermore, whilst it is certainly true that there is great attrition through the criminal justice process, in the sense that only a small fraction of reports to the police result in prosecutions, the Gillen report presents no evidence that this attrition is worse than for other offences. There is evidence, however, that it is not, as I show below.
One might have expected that the key issue of attrition would merit a chapter on its own in the Gillen report – but no. Instead there is a relatively meagre 4 pages in chapter 2 (noting that the whole Gillen report is over 500 pages). What there is focuses mostly on the “rape myths” as the cause of the attrition. The 4 pages do, however, contain some interesting observations. The following badly worded paragraph is cited as one of the explanations for the high attrition rate, though a moment’s thought indicates that it cannot be…
(para 2.53): “complainants are asked if they have applied for criminal injury compensation and, in some recent cases, some complainants have even been asked this question even if they have not applied for compensation.”
More worrying, though, is this,
(para 2.55): “It should be noted, however, that the PPS changed its practice in relation to what constitutes the ‘public interest’ in allowing victims/witnesses to withdraw from prosecution. Previously, there had been a reluctance to force witnesses to attend court and give evidence against their wishes. There is increasing effort being applied to ‘case build’, that is, to gather supporting evidence in anticipation of the witness not being willing to attend court and greater use of witness summonses to require victims and witnesses to attend court. These clinics relate to sexual offences only and are called sexual assault advice clinics. The aim is to identify at an early http://www.mentalhealthupdate.com/abilify.html stage those cases that will not be able to progress to a prosecution and also provide advice to police with regard to other lines of investigation that may be able to strengthen a weak case.”
This is an extremely worrying admission. “Case building” focussing only upon erecting a prosecution case is precisely the mechanism whereby disclosure failures occur.
The implication that complainants are being coerced to continue with prosecutions which they would prefer to drop is very concerning. For an example of how destructive this can be, including the suicide of the complainant, see A Criminal Investigation. The following para may be an example of how this “encouragement to proceed” is enacted,
(2.51): “Limited evidence from Crown Prosecution Service (CPS) data suggests that Independent Sexual Violence Advisors may reduce the number of retractions by complainants (Brown et al, 2010). Hohl and Stanko (2015) also found that support by a sexual assault referral centre halved the odds of withdrawal by complainants.”
In the absence from the Gillen report of a comprehensive list of the causes of attrition, I provide one. Professor Phil Rumney, a Bristol criminologist specialising in the study of sexual offending, has listed 22 reasons for high levels of attrition in sexual assault cases. His point is that attrition “is not all about criminal justice system failure”. These are his causes,
- The complainant reports with no wish for a police investigation.
- The complainant reports but decides not to do a victim interview.
- The complainant reports & s/he decides specialist help/practical support is preferable to a criminal investigation, at least for now.
- The complainant is uncertain or confused. Even after investigation it’s not clear what has happened and there is no basis for criminal prosecution.
- The report does not legally constitute rape.
- The report is contradicted by other evidence.
- Equally credible accounts are given by complainant & suspect and there is no other evidence.
- Suspect cannot be found
- Suspect is dead
- Reported by a 3rd party, but the complainant who disclosed does not wish for the case to be formally investigated.
- The complainant wants to move on
- The complainant decides s/he cannot cope with the criminal justice process at this time.
- The complainant is worried that family members or friends might find out about the rape & has general anonymity concerns.
- Withdrawal from the investigative process (many, many reasons for this, some listed above).
- A recorded offence of rape is cancelled or transferred in line with the Home Office Counting Rules
- Retraction of the allegation because it is untrue.
- Retraction of the allegation resulting from intimidation/manipulation by the suspect or 3rd party.
- The report includes a false account that is so significant it undermines the complainant’s credibility as a witness.
- The case does not meet the CPS test for charging.
- CPS discontinues the prosecution.
- Jurors acquit on the basis that the standard of proof is not met.
- Jurors acquit because they conclude that the defendant has a reasonable belief in consent.
I could add “perpetrator is unknown and investigation fails to identify him”.
One might expect that police data would be available to quantify the proportion of reported cases which do not reach prosecution due to each of the above reasons. In fact, such research is mentioned but the Gillen report only gives us one item: that victim withdrawal accounts for 40% of attrition.
I cite a different source: the 2012 MOJ report “Understanding the progression of serious cases through the Criminal Justice System: Evidence drawn from a selection of casefiles”. This implies that victim withdrawal accounts for only about 20% of attrition. More important is how revealing is Figure 4.1 from the report, reproduced below as Figure 4,
Figure 4: Progression through the criminal justice process: sex offences and GBH compared – click to enlarge
Figure 4 implies that the attrition rate for sex offences is very similar to that for GBH, and, indeed, follows a similar profile as the case progresses through the system. Where, exactly, is the case for regarding sex offences as different in this respect? Have we been conned?
Gillen Chapter 3: Restricting Court Access
I am baffled as to how the suggestion to restrict court access can enhance public confidence, whether there is an acquittal or a conviction. Analogy with the family courts is hardly helpful since this is already highly controversial. In any case the secrecy of family courts is rationalised by concern for the children. In rape trials the alleged victim is already protected by anonymity.
Gillen Chapter 4 – Pre-Recorded Cross-Examination
By custom and practice it is usually considered the accused’s right to face his accuser. Whilst I do not know the precise status of this in law, the overturning of this precept would appear to conflict with the Human Rights Act 1998, Article 6: “Everyone charged with a criminal offence has the following minimum rights….to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”.
The physical presence of the witness and the accused in the same place is debatable in this statute. However, it would appear to imply that if the accuser is allowed to pre-record her cross-examination, then the accused should be afforded the same privilege. I wonder if Sir John appreciates this little problem?
The USA 6th amendment is clearer: “In all criminal prosecutions, the accused shall enjoy the right …… to be confronted with the witnesses against him”. The phrase “be confronted with” effectively prohibits pre-recorded cross-examination.
Gillen Para 46: Educating Jurors and Chapter 15: Training
This is a terribly disturbing suggestion. Who will provide the material with which to do the educating? It will clearly fall to those who claim to be expert in the area: the feminist/rape activist lobby. This “educating” will merely provide an opportunity to impose a specific bias on perceptions. The purpose of the jury system is to allow the accused to be judged by ordinary untainted citizens. Any “education” prior to the trial is prejudicial to this ideal, even if it were of benign motivation. As just one example, what if the jury were told (as they almost certainly would be) that “false allegations of rape are extremely rare”? If the jurors believe it, the verdict is already assured.
Gillen Chapter 5: Separate Legal Representation
I find this baffling. A criminal trial is “The Crown versus the accused”, and the The Crown is represented by the state prosecutor. The proposal being made by Sir John is to double-up legal representation against the accused by having both an “attack” (the prosecutor) and also a new lawyer taking a defensive role – but defending the accuser! Specifically, this new representative would be “to oppose cross-examination on previous sexual history and to oppose disclosure of personal medical records”. Sir John Gillen regards this as “eminently sensible”. I regard it as extraordinary. There is already a judicial process for deciding upon the admissibility of evidence of this sort, involving the prosecutor, the defence team and the judge. The additional representative is odd at best and appears merely to be adding fire-power to one side. But most concerning of all – in fact the most concerning proposal in the whole report is this role for this new representative,
Para 41: “A classic example might be to advise on whether police were unreasonably seeking complainants to declare excessive amounts of personal data under the threat of not proceeding with the case.”
It would appear that this new representative would be a physical manifestation of an arrangement intended to frustrate disclosure in order to maximise the conviction rate.
Disclosure (Gillen Chapter 10)
Chapter 10 addresses Disclosure. Much of what it contains is unexceptionable. It reminds the reader that, under current law, Disclosure is governed by the Criminal Procedure and Investigations Act 1996. Amongst other things it requires that, “any material that could reasonably be considered capable of undermining the prosecution case must be disclosed, even if the prosecutor thinks it does not. It will not matter at this stage that the defence case may be unknown or is not apparent from the prosecution papers”.
The chapter emphasises the need to continue the status quo in respect of the prosecution being in charge of Disclosure. Para 10.12 quotes the 2013 Guidelines on Disclosure published by the Attorney General for England and Wales as emphasising the importance of prosecution-led disclosure. Para 10.14 states, “the prosecution must be in the driving seat at the stage of initial disclosure, acting within a disclosure strategy, identifying and isolating material subject to legal professional privilege and, if necessary, proposing search terms to be applied”.
But the police are the prosecution’s agents in searching for evidential material, and the review rightly notes the following,
(10.30) “There is no doubt that the recent chaos in England and Wales caused by the collapse of trials arising out of late disclosure was contributed to by an inappropriate mindset on the part of police investigators. The potential problem arises with evidence emerging that may help the defence. Undoubtedly, where it eliminates the suspect altogether, we can safely assume that the police will abandon that line of inquiry*. Absent malpractice, it is in no one’s interest to pursue a person known to be innocent.” *I don’t agree that we can safety assume that at all.
(10.31) “The problem arises when the evidence does not go that far and then there is a danger that it may be ignored or marginalised if it does not fit the police case or even tends to undermine it.”
(10.51) “Evidence from England and Wales points to a policing culture of pursuing a conviction against the suspect rather than an approach of pursing all reasonable lines of inquiry.”
(10.52) “The literature suggests that across many countries the police mindset needs to be changed. It has to be predicated on the need to organise evidence with disclosure in mind from the outset. It highlights the crucial importance of training for police officers in disclosure. Disclosure is only as good as the person doing it.”
(10.53) “A number of witnesses to the House of Commons Justice Committee inquiry noted a culture within policing that encourages the pursuit of a conviction against a suspect rather than employing an approach giving sufficient weight to the investigation.”
These are the crucial paragraphs which expose the nub of the issue: disclosure is the responsibility of the prosecution, and prosecutors define success as conviction. However, the English cases which have resulted in disclosure failures are primarily down to police failures. Unfortunately, as the above extracts indicate, the police also have a culture of “conviction is success”, and this has hardly been helped by having “believe the victim” rammed down their throats by the rape activists.
Just how bad this culture has become may be illustrated by this quote from a 2017 report by HM Crown Prosecution Service Inspectorate and Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services, “revelation by the police to the prosecutor of material that may undermine the prosecution case or assist the defence is rare”, (para 10.55).
Chapter 10 repeatedly refers to the extremely large volume of electronic material on mobiles, tablets, laptops, etc., noting that “it will be physically impossible or wholly impractical to read every document on every computer seized“. This is rather a diversionary tactic as it is not necessary to read everything in order to find relevant material, and the review does note that suitable searching procedures would be necessary. But there is a question of will. Success at finding a key email or text amongst tens of thousands may depend upon the effort and determination applied to the task. Para 10.38 notes that, “resourcing issues mean that much relevant material may be left undisclosed or remain hidden in unused materials”. Such a resourcing issue would be solved by the simple expedient of making the material available to the defence. The threat of a 10 year stretch is a great motivator. In contrast, for a police officer, it’s just part of the daily round, in competition with other duties. In this context note that precautions against tampering with electronic evidence are already in place (para 10.36: “Digital devices must be forensically imaged prior to inspection so that the reviewing officer does not alter any data”).
Para 10.37 informs us that, “police in England and Wales do not always retain phones and other electronic devices belonging to suspects and complainants. As such, this may disregard potentially exculpatory evidence”. Indeed, but I remain unconvinced that, having noted the problems with disclosure, Sir John has made it a priority to do much to address them. In common with the new DPP, Max Hill, the Sir John is content to accept that not all electronic evidence will be searched – it’s just too much work. Hill was quoted as saying,
“seeking to examine the mobile telephones of complainants and witnesses is not something that should be pursued as a matter of course in every case. It is of vital importance that the personal information of those who report sexual offences is treated in a way that is consistent with both their right to privacy and with the interests of justice”.
I dare say that if Max Hill or Sir John Gillen were themselves in the dock (and who knows, they may be one day) they would not be so keen to save their accuser’s blushes at the expense of spending ten years in prison. And Sir John does appear motivated by the same chivalrous sentiment, as in para 10.79,
“Whatever the extent of the information that has to be processed, disclosure should not involve an open-ended trawl of unused material. There are reports in England of unfettered access to highly personal records and data being sought by the police from complainants under threat of the case being dropped. There is no need for a trawl through everything in the life of the complainant. As Dame Vera Baird QC said recently, ‘A criminal case is about what happened, not whether the complainant qualifies for sainthood.’”
Ah, there we have it. The veto on “highly personal records” – the sort of thing which might discuss private issues – like sex, for example. The sort of thing where Ms A might reveal to Ms B in a text that “it wasn’t unconsensual or anything”. Just the sort of thing, in fact, that the shiny new legal representative acting for the accuser might become involved to “advise on whether police were unreasonably seeking complainants to declare excessive amounts of personal data” (para 41). The “unfettered access” which Sir John derides is exactly what prevented innocent men going to prison. And quoting Vera Baird doesn’t help with credibility.
No, Sir John. Let’s have all the material. And let’s have it in the hands of someone who is actually going to search it properly. And if confidentially is an issue, that can be solved easily enough by ensuring that only approved professional persons have access to the data, and that they have codes of professional practice which prohibit release or promulgation of any material except that relevant to the case, and that all such relevant material is passed only to the legal teams. But let’s have the material in the hands of the defence lawyers and let’s stop pretending that the prosecutor-police axis is ever going to disclose properly.
Out of 16 Key Recommendations only one addresses disclosure,
“To introduce into the disclosure process greater and earlier trained Police Service of Northern Ireland (PSNI) specialists, with guidance from the Public Prosecution Service (PPS) from the outset, firm time-limited and early judicial management, and resource-led development of relevant digital technology.”
“time-limited”? “resource-led”? No, not good enough. There is no real intention to improve disclosure. The emphasis, in truth, is on conviction.
Gillen Chapter 8 – Cross-examination on previous sexual history
Rape activists will froth at the mouth over this, but the fact is that behaviour prior to (or following) the incident in question can be highly pertinent (the Ched Evans case is an illustration). If the accuser has displayed the same pattern of behaviour on separate and independent occasions, this clearly has a bearing on the likelihood of consent.
Anonymity for the Accused?
Para 88: “a crucial advantage of the publication of the name of the accused…..is that there is clear evidence in Northern Ireland and elsewhere that it serves to bring forward other complainants”. Well, that’s hardly surprising. But where is the evidence that it brings forward valid complainants? Fishing for additional accusers provides a win-win for everyone, except the accused. The accusers are now in a stronger position to be believed, and compensation payments beckon. And the police and prosecution have a much easier time making the case stick, thus making life easier for the judge and jury too. This is how the system works, and there is no recognition in Gillen that this is so. Fishing for additional accusers is a profound dereliction of justice.
Para 90: “it is extremely difficult to justify the identity of an accused being anonymised in serious sexual offences and not in other heinous offences such as murder”. The analogy is fallacious. There will be no additional murder victims coming forward to make accusations. And in sex cases, anonymity for the accused would be a matter of parity with the accuser, which also does not apply in murder cases.
Chapter 18: Resources
The vast sums claimed here could do with close examination. My immediate reaction is that they look preposterous. But I, like you, am out of steam at this point.
The Gillen report is not an instrument of justice, but the opposite.