New review recommends banning the public from rape trials in Northern Ireland

A new independent review of how Northern Ireland’s judicial system deals with serious sexual crimes has recommended banning the public from trials. Here’s everything you need to know…

A new independent review of how Northern Ireland’s judicial system deals with serious sexual crimes has recommended banning the public from attending rape trials.

The Gillen Review, by retired judge John Gillen, was ordered after concerns were raised around the handling of a high-profile rape trial in Belfast last year; in which professional rugby players Paddy Jackson and Stuart Olding were acquitted of rape.

The trial took place from January to March 2018 and attracted much media attention and social media debate. The acquittal of the two defendants resulted in a campaign of support for the alleged victim, using the hashtag #IBelieveHer on social media, as well as marches in cities across Ireland.

The report

The report made a number of recommendations on how the Northern Irish judicial system could better handle sexual offences, including in the areas of cross-examination, legal representation, consent and social media. However, the most notable was the recommendation to ban the public from attending such trials, in order to protect the complainant.

The families of those involved in the trial would still be allowed to attend, along with members of the press to act as the ‘eyes and ears’ of the public.

Related: ‘Victim blaming’ comments in Cork rape trial spark outrage

Justice Gillen said: “I have spoken to maybe 35 to 40 complainants, who have been through the system, and that sense of public humiliation, in a small place like Northern Ireland, where everybody knows everybody – even if you get a few people attending trials in local areas such as Strabane or Newry or Derry – it’s like putting it in the paper.”

The Gillen Review was constructed by engaging with more than 200 organisations and individuals; including victims, human rights groups, the judiciary and the Police Service of Northern Ireland. Justice Gillen added that his team had received 150 extensive written submissions, more than 400 respondents to an online survey and extensive public and media interest.

The Department of Justice has now set up a special group to “oversee the implementation of the Gillen Review”. Given the absence of a devolved assembly, Justice Gillen accepted there would be a delay in delivering a quarter of what he proposed, but other things “can be done fairly quickly in terms of weeks and months”.

Rape trials in Northern Ireland vs the Republic

During the trial in 2018, many members of the public criticised the court system in Northern Ireland, which they alleged put undue stress and pressure on the alleged victim by allowing the public to attend and to openly discuss the trial.

One man was convicted of revealing the name of the complainant in November, which was the first time a citizen of Northern Ireland was found guilty of this crime.

There are significant differences in the way Northern Ireland and the Republic of Ireland handle rape trials. Our laws provide much greater levels of privacy both for the accused and the complainant than the equivalent Northern Irish law.

In the Republic

The complainant in a trial of this kind remains anonymous, and the name of the accused is not revealed unless they are convicted. Illegal social media breaches of this rule have been noted in past trials, but this procedure would have made a significant difference to the way in which the Belfast trial was reported.

Members of the public are not allowed to attend rape trials in the Republic of Ireland, which is seen as the fairer option to both the accused and the complainant.

The Criminal Law (Sexual Offences) Act 2017 in the Republic provides procedural protections for victims throughout rape trials, and also provides a statutory definition of consent, which is as follows:

A person consents to a sexual act if he or she freely and voluntarily agrees to engage in that act. A person does not consent to a sexual act if—

• he or she permits the act to take place or submits to it because of the application of force to him or her or to some other person, or because of the threat of the application of force to him or her or to some other person, or because of a well-founded fear that force may be applied to him or her or to some other person,
• he or she is asleep or unconscious,
• he or she is incapable of consenting because of the effect of alcohol or some other drug,
• he or she is suffering from a physical disability which prevents him or her from communicating whether he or she agrees to the act,
• he or she is mistaken as to the nature and purpose of the act,
• he or she is mistaken as to the identity of any other person involved in the act,
• he or she is being unlawfully detained at the time at which the act takes place,
• the only expression or indication of consent or agreement to the act comes from somebody other than the person himself or herself

This section does not limit the circumstances in which it may be established that a person did not consent to a sexual act. Consent to a sexual act may be withdrawn at any time before the act begins, or in the case of a continuing act, while the act is taking place. Any failure or omission on the part of a person to offer resistance to an act does not of itself constitute consent to that act.

Related: ‘Causing trouble for the lads’: The rape trial language that revealed a rotten underbelly