The justice system needs to change – like it has many times before

The justice system we have today is based on a number of firm principles. Firm, but not immutable.

Criminal justice has evolved over time. Here in Northern Ireland, it has emerged from the UK system which has a through line going back to medieval times: the Magna Carta and even the Norman conquest of England.

A lot has happened in the past thousand years. The models we have, and perhaps even take for granted, today are the result of an unknowable number of incremental changes, be they systemic or in the development of common low or something else.

In many ways our criminal system appears to work very well – but in some areas it clearly does not.

Last week, we wrote about Criminal Justice Inspection NI’s damning report into cases of sexual violence in Northern Ireland.

Less than one in fifty of all rape allegations, and less than one in ten of allegations of other sexual offences, end in a conviction. Chief Inspector Brendan McGuigan came forward with an abundance of criticisms relating to systemic failures and poor outcomes.

The entire process is beset with avoidable delays, victims are being “failed,” and conviction rates are woeful.

Bluntly, rape is a crime you can get away with.

However, change is possible, and this week, following quickly on from the CJINI report, came the preliminary recommendations from the review over seen by former appeal court judge Sir John Gillen into how NI deals with cases of serious sexual offences.

Open justice

One of the best-known quotations in UK law is that “justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

Its meaning has expanded beyond its initial usage – in the quashing of a conviction for dangerous driving where there was found to be no effective conflict of interest but where there might appear to have been one – and into an aphoristic rallying cry for the wider principle of open justice.

Open justice is a commitment to broad transparency in justice, including allowing anyone access to a trial and facilitating coverage of proceedings, particularly in the media, so the machinations of guilt, innocence, freedom and incarceration are as visible as possible to as many people as possible.

Its primary concern is fair protection of the individual – often, the defendant – against the cogs of the machine.

The preliminary recommendations from Sir John Gillen seek several compromises on this principle:

• That public access to trials be severely curtailed, with only the media, and close family members of the allowed to attend.
• Legislation to combat the “menace” of social media, which “can render the granting of anonymity to a complainant a complete waste of time and that will put people off coming forward.”
• Anonymity for the accused until they are charged – from then on they will be identified.

Perhaps these appear like enormous changes that break something fundamental about how we pursue justice.

Evolution not revolution

There are many exceptions to openness, in criminal cases and in other areas: secret courts where defendants or claimants are not allowed to see all the evidence against them; the near-universal concealment of family courts; and the many and varied powers to establish temporary or permanent reporting restrictions that judges in criminal cases enjoy (the ongoing legal wrangle between Stephen Yaxley-Lennon – known as Tommy Robinson – and his retrial for contempt of court amounts to allegations he breached such restrictions).

Indeed, the anonymity of alleged victims of sexual offences is one long-established – and largely uncontroversial – exception to the open justice principle.

One suggestion that he admitted was a wrangle for the review was anonymity of the accused.

There are various arguments for this. For instance, it would protect the defendant (until any guilty verdict) in an area of law where mud tends to stick. In addition, there is an argument that this protection for the defendant would indirectly help the victim, because any allegations that their claims were malicious would carry far less weight when the identity of the defendant was not public knowledge.

However, Sir John decided against making this recommendation instead, as per the above, limiting any period of anonymity until the defendant is charged.

His reasons for this are interesting: that there are broader interests of justice served by making names public, namely in encouraging any other potential victims to come forward, but also that making an exception to the open justice principle here would logically lead it to be questioned in a much broader way.

"Firstly, there is clear evidence that naming the defendant serves to bring forward other complainants.

"In cases where it's often the word of one person against another, if four or five women come forward and make allegations against the same person, justice is more likely to be done.

"Secondly, 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, crimes of unspeakable cruelty to children and other offences of non-sexual extreme violence etc."

Other principles, and moving forward

Those are just a sliver of the more than 200 recommendations currently put forward by the Gillen review.

Other notable ones offer challenges to another strut of the justice system – the right to a robust defence.

The idea that cross-examination of accusers should be pre-recorded and happen away from court is a radical one but, in the substantive sense, not a major one at all. Cross examination would still take place, this seems no more than a sympathetic treatment of difficult circumstances.

Ideas that might have a bigger effect on defences, as they are currently pursued, include that judges should be stronger in preventing cross examination about irrelevant sexual history – this is already the law but if it has been raised in this review there must be concerns the law, as it stands, is not being applied.

Sir John also wants various myths to be tackled – although these misconceptions might a problem with wider culture and public knowledge, rather than legalistic – including that people who are drunk or on drugs, or who dress in a certain way, have somehow incited an offence, or that accusers who do not scream or fight back were not victims of rape.

The Gillen review’s initial suggestions are sweeping and transformative – this article only highlights a select few - and this should not be a surprise.

If the justice system is not serving justice then its underlying principles have to be challenged.

Not all of the recommendations put forward in this consultation phase of the review necessarily need to or should be implemented.

However, this is the conversation we need to have right now – and fundamental change is required.

Moreover, these changes are fundamental but they are hardly unprecedented. That UK law has its roots in a system that has continually adapted itself for a millennium is one of its great strengths.

The idea of open justice, or any other tenet, is only valuable insofar that adherence to it makes things better. When it comes to serious sexual crimes, the way we do things is so badly broken that there is not much of worth to protect.

So, none of what is being suggested is a big deal, even if it might sound like a lot.

The consultation period for Sir John Gillen’s review is set to run until January 15. Now is the time to fix a broken system.