Independent separate legal representation for rape complainants in adversarial systems: lessons from Northern Ireland
| Published date | 01 June 2021 |
| Author | MARY ILIADIS,OLIVIA SMITH,JONATHAN DOAK |
| Date | 01 June 2021 |
| DOI | http://doi.org/10.1111/jols.12295 |
DOI: ./j ols.
ARTICLE
Independent separate legal representation for
rape complainants in adversarial systems:
lessons from Northern Ireland
MARY ILIADIS1OLIVIA SMITH2JONATHAN DOAK3
School of Humanities and Social
SciencesDeakin University, Burwood
Highway, Victoria , Australia
Social and Policy Studies, School of
Social Sciences and Humanities,
Loughborough University, Brockington
Building, Margaret Keay Road,
Loughborough, LE TU, England
Nottingham Law School, Nottingham
Trent University, Chaucer Building,
Goldsmith Street, Nottingham, NG LP,
England
Correspondingauthor
MaryIliadis, School of Humanities and
SocialSciences, Deakin University,
BurwoodHighway, Victoria , Australia
Email:mary.iliadis@deakin.edu.au
Abstract
In March , Northern Ireland was divided by the
acquittal of four men for rape, attempted rape,exposure,
and perverting the court of justice in what became
known as the ‘Belfast Rugby Rape Trial’. The case
resulted in considerable debate about the ill-treatment
of rape complainants and prompted the Gillen Review
into the Laws and Procedures in Serious Sexual
Offences. Gillen proposed the introduction of separate
legal representation (SLR) to safeguard complainants’
sexual history and medical records pre-trial. Since the
Review was published, however, scepticism about the
applicability of complainant SLR within an adversar-
ial context remains. We examine the arguments for
and against SLR in adversarial systems and propose a
‘Gillen-plus’ framework for SLR that would not interfere
with the accused’s rights or public interest and could
provide the basis for reform across other adversarial
jurisdictions. We question whether Northern Ireland’s
unique socio-political context strengthens or weakens
the justifications for introducing SLR.
INTRODUCTION
In March , Northern Ireland was divided by the acquittal of four men for rape, attempted
rape, exposure, and perverting the court of justice in what became known as the ‘Belfast Rugby
© The Author.Journal of Law and Society © Cardiff University Law School
wileyonlinelibrary.com/journal/jols J.Law Soc. ;:–.
Rape Trial’. In particular, the text messages sent by the defendants Paddy Jacksonand Stuart Old-
ing, who play for the Ireland and Ulster rugby teams respectively, raised serious concerns about
misogyny in men’s elite sport. The outcome of the nine-week trial provoked a series of protests
under the hashtag #IBelieveHer.
Subsequent to this initial controversy, in April , the Criminal Justice Boardcommissioned
a review of the law and procedures in serious sexual offences in Northern Ireland.SirJohnGillen
QC (hereafter Gillen) undertook the review,informed by evidence obtained from high-level crim-
inal justice professionals, legal stakeholders, academic researchers, and victim support services.
In his report, Gillen noted that ‘sexual crime is one of the worst violations of human dignity’and
documented the ways in which the criminal justice process exacerbates the impacts of victimiza-
tion from the point of reporting through to the trial.
The Gillen Review set out a plan for transformative reform, containing over recommen-
dations, including a proposal for less adversarial approaches to the cross-examination of children
and vulnerable adults, and extending the definition of ‘vulnerable’ to include complainants of sex-
ual offences.This would involve introducing the pre-recording of evidence in cross-examination
facilities, located remotely from the court and before the trial.More contentiously, Gillen pro-
posed the introduction of publicly funded separate legal representation (SLR) for complainants.
As in most archetypal adversarial systems, Northern Ireland’s common law principles are
underpinned by the need to safeguard the accused person’s rights to a fair and impartial trial.
Within this context, complainants lack justiciable rights to protect their interests and privacy,
as the adversarial contest between the state prosecutor and the accused precludes victims from
actively participating in proceedings. The Gillen Review found that while a complainant’s status
as mere ‘witness’ to proceedings is neither ‘novel nor uncommon’ in adversarial systems, ‘com-
plainants are often shocked, and members of the public surprised, to discover that complainants
do not have legal representation’.Although complainants may engage legal counsel to maintain
access to information about the case’s progression, standing in the trial is prohibited. Moreover,
engaging counsel is costly and complainants are already entitled to receive information from the
Police Service for Northern Ireland (PSNI) under the Victim Charter.
Drawing on the recommendations of the Gillen Review,we consider the viability of intro-
ducing publicly funded complainant SLR to represent complainants on evidence relating to their
S. McKay, ‘How the “Rugby Rape Trial” Divided Ireland’ Guardian, December , at <https://www.theguardian.
com/news//dec//rugby-rape-trial-ireland-belfast-case>.
The Criminal Justice Board is responsible for overseeing and progressing justice-led Programme for Government com-
mitments, agreeing shared priorities across justice, and monitoring progress towards achieving change and openness in
the criminal justice system. The Board is currently chaired by the Permanent Secretary of the Department of Justice and
comprises the Lord Chief Justice, the Chief Constable, the Director of Public Prosecutions, and senior officials from the
Department of Justice.
Sir J. Gillen, GillenReview: Report into the Law and Procedures in Serious Sexual Offences in Northern Ireland: Part 1, Final
Report () i, at <https://www.justice-ni.gov.uk/sites/default/files/publications/justice/gillen-report-may-.pdf>.
Currently,in Northern Ireland, complainants of sexual offences are automatically defined as intimidated witnesses under
the Criminal Evidence (Northern Ireland) Order . In Scotland, sexual assault complainants are included in the defi-
nition of ‘vulnerable’: see Victims and Witnesses (Scotland) Act , s. (c)(i).
Gillen, op. cit., n. , p. .
Id., p. .
Justice Act (Northern Ireland) , s. .
The Gillen Reviewrecommendations are being implemented by a newly formed and multi-agency Strategic Justice Group
on Sexual Harm, which is overseen by the Criminal Justice Board, a strategic oversight panel headed by the Minister for
Justice.
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