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Judicial Studies Institute Journal TRIAL VENUE AND PROCESS:
THE VICTIM AND THE ACCUSED
I deliver the following presentation on behalf of the Rape Crisis Network Ireland. The RCNI is an umbrellaorganisation which has been in existence since 1985 andcurrently represents 15 member centres.
The mission of the RNCI is to provide support, information, training and development for all member rapecrisis centres on the island of Ireland. As an accessible andinformed organisation it supports the staff and volunteers ofRape Crisis Centres in the interests of all survivors of sexualviolence through raising public awareness and lobbying forchange.
Amongst our key objectives are:y to ensure the highest standards of support and counselling for survivors of sexual violence; y to undertake research and promote awareness as to the causes, nature and extent of sexual violence; y to raise public awareness about the issues of sexual violence and the needs of survivors of sexualviolence; and y to campaign for the societal and legislative changes that will help work towards the elimination ofsexual violence and sexual abuse. In the past year the RNCI has made submissions to:y the National Plan for Women;y the Review of the Anti-Poverty Strategy;y the Sex Offenders Bill;y the Women's National Health Plan; * Legal Support Officer with the Rape Crisis Network Ireland.
y the elections for Government through an election y the corporate plan of the Legal Aid Board; andy the Working Group on the Jurisdiction of the It is in furtherance of this latter submission that I Informing the RNCI position on this submission were the nationwide “round table” discussions held earlier thisyear and an ongoing process of consultation with membercentres.
opportunity afforded by this conference to put ‘centre stage’the views and experiences of survivors who have encounteredour criminal justice ‘system’ in their pursuit of justice. The aspiration of those who have informed this input is the betterment of the path of those who follow in theirfootsteps.
My presentation has broad themes and I make no apology for the fact that a number of them fall outside thestrict parameters of jurisdiction. The ‘system’, by which Imean the entire process from the complainant's decision toreport (or indeed not to report) through to the prospects of areturn to a pre-offence level of functioning, is not viewedincrementally by a survivor. The complainant’s experiencethrough each stage of the process informs and impacts uponeach subsequent stage, contributing to his/her net evaluationof system; it is appropriate therefore that each stage of theprocess informs and impacts upon our understanding of theirviewpoint.
We live in what an old Chinese curse terms ‘interesting times’. These interesting times have seen apercentage increase in the level of reported rape between1950-1998 of 2,333%.1 We see a current annual increase of 1 The Institute of Criminology, U.C.D., Crime in Ireland: Trends andPatterns, 1950 to 1998, p. 33.
Judicial Studies Institute Journal 91% in the reporting of sexual assault.2 Yet, based on recentresearch,3 we know this still to be only the tip of the iceberg. The status or locus standi of the complainant has, until recent times, been largely ignored. Historically it waspossible to trawl through countless volumes purporting togive a complete overview of the criminal justice system andnot find a single reference to the victim at all. Thankfullythings appear to be changing. It may be somewhat cynical ofme to suggest why they are at last changing, but the simplefact is that unless we can engage the complainant in theprocess and halt the current rate of attrition,4 we can, as asociety, abandon hope of providing an effective bulwark ofprotection to victims of sexual violence.
In many respects Ireland can stand proudly over its “respectable body of statute and case law” in the area ofsexual violence.
Amongst its worthy achievements:y The elevation of rape, rape under s. 4 and aggravated sexual assault to the exclusivejurisdiction of the Central Criminal Court. Moreworthy still was the raison d’etre for the decision, inadopting as they did the LRC recommendation, butexpressly rejecting the basis for therecommendation, and substituting in its place that“this decision was intended to be seen as anexpression of the seriousness with which thegovernment view crimes of rape and aggravatedsexual assault” this marker of the “heinous nature” 2 An Garda Síochána, Annual Report 2001, p. 92.
3 The SAVI Report calculates adult (female) disclosure of sexual violenceto be 7.8%. McGee, Garavan, de Barra et al., The SAVI Report: SexualAbuse and Violence in Ireland: A National Study of Irish Experiences,Beliefs and Attitudes Concerning Sexual Violence, p. 128.
4 The SAVI Report calculates attrition at 95.1% (p. 135).
and the need to mark “societal condemnation of rapeand serious sexual assault”.5 y The abolition of the mandatory corroboration warning by virtue of s.7 of the Criminal Law (Rape)(Amendment) Act, 1990. The provisions of s. 5 ofthe Criminal Justice Act, 1993 establishing thecomplainants right to be heard as to the effect of theoffence(s) either by way of victim impact statementor indeed by way of oral evidence.
y The provision of video-link facilities to young and y The introduction of separate legal representation As already discussed, in the arena of sexual violence, an overwhelming majority of complainants simply do notengage with the criminal justice system. Of those that doreport to the Gardaí, an overwhelming percentage(approximately 75%) find that “their” case is not beingproceeded with. Currently they are not informed as to thereason for this prosecutorial decision, and save with theexception of the 2000 DPP’s report, we are not able toestimate in even the broadest terms the breakdown of“reasons”. In my submission, the context in which we mustview the sense of disempowerment felt by the complainantfaced with a decision directing no further action is byreference to the nature of crimes of sexual violence. Crimesof sexual violence are, by their nature, crimes of the mostprofound abuse of power. That the complainant experiences afurther sense of powerlessness through the system is well 5 Minister Burke speaking in the Dail, 20 November 1990 (402 DáilDebates 1838).
Judicial Studies Institute Journal documented.6 We compound this disempowerment further byfailing to afford the complainant a cogent, comprehensiblereason for such a decision. I acknowledge that there may be aminority of cases where disclosure of the ‘reason(s)’ may notbe held to be in the ‘public interest’; in such cases amechanism akin to certificates of public interest immunitymay be an appropriate compromise. Furthermore I believesuch a debate needs to be informed by developments in otherlike jurisdictions.
There is a clear need for an accountability mechanism that is less cumbersome, and more capable of probing the realreasons for decisions and facts on which they are based, thanthe judicial review procedure.7 This need for greateraccountability and transparency was legislatively recognisedin the U.K. by the Crown Prosecution Inspectorate Act 2000,which established an independent CPS inspectorate; itsreports are public and frequently critical.
That a similar tide of opinion is discernable within this jurisdiction is evident from the Courts Service’s ownannual report: [T]he institutions of State can no longerperceive themselves as being exempt frompublic scrutiny. … [P]ublic bodies [need] toshow themselves to be open and transparent intheir dealings with the public.8 Further the ‘reasons’ for decisions ought properly to continue throughout the trial process and encompasssituations where ‘sample’ charges are being preferred orpleas to lesser offences are acceptable. The advantage of such an open policy would in my opinion flow both ways, empowering the complainant and 6 See generally Alder, Rape on Trial.
7 See generally Burton, “Reviewing CPS Decisions not to Prosecute”,[2001] Crim. L.R. 374.
8 Courts Service, Annual Report 2001, p. 21.
‘vindicating’ the prosecution as, per Lord Bingham C.J., sucha decision ought to be supported by the disclosure of fairlyfull reasons . to vindicate the Director’s decision byshowing that solid grounds exist for whatmight otherwise appear to be a surprising oreven inexplicable decision, and to meet theEuropean Court's expectation that if aprosecution is not to follow a plausibleexplanation will be given.9 Incomprehension as to workings of the judicial system pose significant hurdles to the uninitiated (and all toofrequently to the initiated as well!). Many enquiries to theNetwork seek answers to aid navigation of these unknownwaters. I would propose that our education system ought,perhaps as part of the CSPE programme, to chart a courseequipping our citizens with at least a rudimentary knowledge.
Further and more detailed information needs to be madeavailable to a complainant so that a “High Court applicationfor judicial review seeking an order of prohibition” is notexplained to a complainant as “a hearing in the High Courtthat you do not need to worry about as your attendance is notrequired”.
In charting measures thought to reduce complainants’ stress Jenny McEwan cites the provision of “the mostextensive information possible about what will happen tothem at court” as a key recommendation.10 I would fullyconcur with her observation and add what I believe to be animportant, though undeniably controversial addendum. Ibelieve it to be the right of all complainants to be informed of 9 R. v. DPP ex parte Manning & Melbourne [2000] 3 W.L.R. 463, at 478.
10 McEwan, “Special Measures for Witnesses and Victims” inMcConville and Wilson (eds.), Handbook of the Criminal JusticeProcess, p. 242.
Judicial Studies Institute Journal the impending release of the defendant in their case, withsufficient safeguards to preclude the possibility of such noticeposing a threat to the safety of the defendant. It cannot surelybe justified that the first notice a complainant may have ofrelease is when he/she quite literally ‘bumps into’ thedefendant in their home town.
C. Reporting Restrictions/Anonymity The overwhelming majority of clients in RCCs throughout the country cite the protection of their identity inthe process to be of paramount importance and a keydeterminant as to their willingness to report. The anonymitybestowed upon a complainant by virtue of the CentralCriminal Court hearing cases in Dublin only has beenwelcomed almost universally. The beneficial effect of theexclusive jurisdiction of the Central Criminal Court was ananticipated benefit of the 1990 legislation and indeed wasreferred to by the Minister thus: The legislation goes to considerable lengths toreduce the trauma and to protect the identity ofthe complainant and the holding of trials inDublin can only serve to preserve heranonymity far more effectively than could bedone if the trial was in her home town.11 It must therefore be said that the arbitrary line drawn between offences that must be tried in the Central CriminalCourt and those remaining on Circuit (and thus in the localeof either the defendant or the complainant) isincomprehensible, and I would submit unjustifiable. Inparticular, to leave incest proceedings on Circuit renders‘cosmetic’ provisions designed to safeguard the identity andthe dignity of the complainant. Evidence of low-gradeintimidation abounds where complainants have to share 11 Minister Burke speaking in the Dail, 20 November 1990 (402 DáilDebates 1840).
waiting room/cloakroom facilities with the defendant and hisfamily while awaiting hearings. All too frequently thephysical environs of the court houses throughout the countrymake such contact inevitable with no separate waitingfacilities being available outside of the capital.
Further, rare as it might be for a native of Connemara to argue in favour of centralisation, a further advantage ofsuch a concentrated nucleus of activity is the more efficientprovision of services, in particular the provision of separatelegal representation.
D. Other Measures To Ease the Journey of the Complainant The context in which I believe we should view such measures that have as their core purpose easing the passageof the complainant through the trial process is that adopted bythe Scottish Council for Civil Liberties who argued that“matters should not be seen in the ‘zero-sum’ terms of anygains in rights for complainants necessarily diminishing therights of the accused or vice versa.”12 In fact it is the “clear duty of the trial judge to do everything he can, consistently with giving the defendant afair trial, to minimise the trauma suffered by otherparticipants.”13 The single most appropriate measure that would best minimise the ‘trauma’ of a complainant during trial would bethe adoption of a rebuttable presumption that specialmeasures must be used for complainants in sexual cases.14 Thus the use of screens, video-link, intermediaries and a consideration of pre-taped evidence in chief (having asit does the advantage of being a great deal more‘contemporaneous’ than live evidence months, sometimesyears after the event) would be the norm, departed from onlywhere the interests of justice so demanded.
12 Brown, Burman and Jamieson, Sex Crimes on Trial, p. 11.
13 Per Lord Bingham C.J. in R. v. Brown [1998] 2 Cr. App. R. 364 at 371.
14 See the English Youth Justice and Criminal Evidence Act, 1999.
Judicial Studies Institute Journal The Department of Justice has enunciated as a key objective “[t]he need for balance and proportionality . tofind the right balance between the competing rights of theaccused, the prosecutor, the victims of crime and societygenerally”.15 It is my respectful opinion that we have failed to achieve this balance and that it is time to re-align the positionof the complainant within the framework of the criminaljustice system. To persuade the complainant to enter thearena we must, as a matter of urgency, confront the realitythat the current system is perceived by many asconfrontational, humiliating and fundamentally lacking injustice.
jurisdictional alterations achieved under the 1990 legislation.
I know I preach to the converted when I condemn thecurrently unacceptable levels of delay being experienced byboth defendant and complainant alike.16 However the delaywas anticipated, and was indeed the basis for initialopposition when this matter was being debated before bothHouses. The Minister himself gave an undertaking to theHouse to “keep the situation very carefully under review”.17Failure to so monitor, and to implement the necessaryremedial actions, should not be advanced as justification for adown-grading of jurisdiction. 15 Deptartment. of Justice, Equality and Law Reform, Strategy Statement2001-2004, Objective 4.30.
16 The Courts Service Annual Report 2001 gives the waiting time as 16months with 168 cases outstanding as of 31 December 2001 (pp. 72-73).
17 Minister Burke speaking in the Dail, 20 November 1990 (402 DáilDebates 1839).
To conclude I ask you to embark on a journey, perhaps different from that you have undertaken before, toview our ‘system’ from a new perspective. Most, if not all ofus, believe that we are able to see from the other’s vantagepoint. I ask you to test whether that is truly the case-to havethe “gift to see ourselves as others see us”. In lobbying for change, robustly if necessary, I would nevertheless hope to adopt a consensus approach. For toolong perhaps, a war of attrition has raged, the dogged defenceof one’s ‘side’ all too frequently obscures the bigger picture.
We strive ultimately towards the same end-justice as definedby Curzon’s Dictionary of Law as “[t]he virtue which resultsin each person receiving his/her due”.
It is my great honour on behalf of all survivors of sexual violence to ask only that they receive their due.

Source: http://www.jsijournal.ie/html/Volume%203%20No.%201/3%5B1%5D_Mulkerrins_Trial%20Venue%20and%20Process.pdf