Gillen Review Report into the law and procedures in serious sexual offences in Northern Ireland Part 1 Sir John Gillen gillenreview.org Gillen Review Report into the law and procedures in serious sexual offences in Northern Ireland Part 1 Sir John Gillen Preface And if there may seem to be a weight of tradition against change, at least it is worth remembering that the apparent heresies of one generation become the orthodoxies of the next. The ultimate validity of any social measure will depend not upon its antecedents but upon its current and future utility. Sir Owen Woodhouse1 Sexual crime is one of the worst violations of human dignity. It can deeply traumatise the victims, their family and even whole communities. Serious sexual offences in general and rape in particular are crimes of alarming prevalence. They are unique in the way they strike at the bodily integrity and self-respect of the victim. All genders, children and people of all ages, classes and ethnicities can become victims. It happens across all cultures and in some cultures, including here in Northern Ireland, shame and social pressures will prevent it being reported. These crimes are a blight on our society with profound consequences for victims and for society at large. Deep concerns about how serious sexual offences are processed and determined have been expressed for several years. In the wake of recent trials of such offences both here and in England and Wales, public disquiet about the law and procedures governing serious sexual offences has clearly grown. Hence the Criminal Justice Board, which exists to oversee reform, change and openness in the criminal justice system, commissioned me on 24 April 2018 to undertake an independent review of arrangements around delivery of justice in serious sexual offences. Despite many positive changes in law and procedure and various governmental initiatives over the past three decades, these offences still seem to defy the ordinary trial processes. As potential offences, they are seriously under-reported, with complainants regularly opting out of the very system that is supposed to recognise their rights. This is despite the fact that most sexual crime is more often than not perpetrated by someone known to the victim, not always well known but sufficiently acquainted to bedevil the subsequent attempts to secure justice. However, this is not a moment to look defeat in the eye and make peace with it. The obligations of the State to those who have suffered a violent sexual crime that strikes at the whole concept of human rights and bodily integrity are much wider than simply working for the conviction of a perpetrator. 1 New Zealand Royal Commission to Inquire into and Report upon Workers’ Compensation Compensation for personal injury in New Zealand: Report of the Royal Commission of Inquiry Wellington, Government Printer, (1967) at p. 33. i | Report into the law and procedures in serious sexual offences in Northern Ireland | Part 1 We want to ensure that victims of sexual offences are treated with dignity and respect on the path to trial and in the court. Sexual violence is a traumatic crime, and it is crucial that victims have confidence in the criminal justice system to report abuse and thereafter travel through the process unscathed, while ensuring that those who are accused are accorded a fair trial. Once cases come before the notice of our police, Public Prosecution Service (PPS) and courts, not only must complainants and accused be treated with sensitivity and respect, but they must be secure in the knowledge that current perceptions that rape myths and stereotypes may potentially have invaded our legal process for so long are soundly based and, if they are, are dispelled as far as is possible. Social media must not be permitted to pollute the stream of justice and defeat the interests of both complainants and accused persons. In making this plea, I take the opportunity to record that, during the course of this Review, I have come across a wide range of deeply dedicated and committed men and women in the Judiciary, the legal professions, the voluntary sector, representatives from victims’ groups, the police, the prosecution service, politicians from all the main parties, the press and members of the public at large who are enthusiastically working hard to address most if not all of the problems that I have observed in the criminal justice process. My fervent hope is that these good people, who have already embarked to some extent on the changes necessary, will not only be encouraged but be empowered to do more on the path of radical change that this Review recommends and convince others working with them that this is an urgent and important priority. Equally importantly, I sincerely hope that this Review will also be read by the general public who are not employed at the coalface in processing serious sexual offences but whose informed support is vital if many of the changes I propose are to carry weight and gather momentum. To that end, I trust that this Review is bereft wherever possible of the patronising legal jargon that so often afflicts people in my profession and that the messages are simple and clear. Many of the topics to which I have devoted individual chapters could have merited inquiries in their own right. Many of the issues clustered in the chapters would have justified consideration in individual chapters on their own. They have been individually the subject of a plethora of previous reviews, learned academic treatises, research and controversial assessments. Two examples will suffice although doubtless there are more. First, the issue of serious sexual offences against children is a topic in its own right, and we could have taken up not a mere chapter but the entire review process dealing with it alone. Secondly, I am acutely aware that the Men’s Advisory Project was disappointed that the topic of male rape was included within the chapter on marginalised communities. The issue of male complainants punctuates several of the chapters and I trust that therein all the issues have been raised. I fear however, that each of the groups in that chapter, including males, could have merited a separate chapter if only time and space had permitted. Each of | ii Preface these groups is an extremely important part of this Review and I strongly hope that none of them feel relegated in importance by being contained in one chapter. My concern, therefore, has been to create signposts for those in authority in these fields of law and procedure. It should be seen as part of a wider response of the community to these particularly invasive and traumatic aspects of serious sexual offences. My perception is that public concern over issues raised by sexual offending has never been higher. The problems we face in this jurisdiction are not unique. Interestingly, the demand for a review of the law and procedure of serious sexual crimes and ancillary issues has surfaced for some time now not only in Northern Ireland but, as our research has shown, in neighbouring jurisdictions and countries worldwide. Thus we have researched experiences and literature on these topics worldwide to 16 other countries as this Review will reveal in each chapter. I have personally spoken to Judiciary/lawyers/victims’ groups and advocates etc. in many jurisdictions. I am acutely aware that cultural differences exist in our various countries and that problems experienced and solutions sought are far from being necessarily transferable to a small jurisdiction such as ours. Nonetheless, when different systems have virtually identical issues and similar outcomes — as they clearly have — we must take note of those experiences particularly when they inform our own conclusions and strive to benefit from the solutions proffered. Hence in virtually every chapter of this Review I have introduced a section on existing international standards, which we must seek to emulate in Northern Ireland. The task I faced in taking up the Review was to assess and make recommendations on how the law and procedure governing complainants might be improved while not compromising the fundamental trial rights of those who are accused (or, indeed, in some cases not even yet accused) of such offences. The chapters, whilst recognising the great improvements in recent years, are calculated to establish a number of confidence-building blocks, none of which will solve our existing problems on their own, but which cumulatively are intended to introduce radical overall change. When we published the Preliminary Report on 19 November 2018 I indicated that the purpose was to ensure that no voice was left unheard. The terms of reference of my Review were written to give me latitude to take the Review where the evidence would lead me. I was determined to ensure that I would be led to receive evidence from the general public in order to help inform my views. A central dilemma for lawyers such as myself is always the tension between the so called “experts” and stakeholders in the criminal justice system on the one hand and on the other hand the “ordinary common sense” of the public. How far should the rule of law be based on everyday understanding and buy-in of the majority of the population, and how far on the specialised, often less easily intelligible, wisdom of the experts? iii | Report into the law and procedures in serious sexual offences in Northern Ireland | Part 1 I firmly believe that for the rule of law and the administration of justice to maintain public confidence it needs always to navigate between the Scylla of legal expertise and the Charybdis of popular sense.