Terra incognita: Victim Participation Rights, Sexual Offending and Brexit

AuthorJuliette Casey
DOIhttp://doi.org/10.1177/20322844221122181
Published date01 December 2022
Date01 December 2022
Subject MatterArticles
Article
New Journal of European Criminal Law
2022, Vol. 13(4) 420438
© The Author(s) 2022
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DOI: 10.1177/20322844221122181
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Terra incognita: Victim
Participation Rights, Sexual
Offending and Brexit
Juliette Casey
Bar of Ireland, Dublin. Faculty of Advocates, Edinburgh.
Abstract
Over the past four decades, the importance of safeguarding the rights of victims of crimes has been
progressively recognised. While the European Convention on Human Rights, the EU Charter of
Fundamental Rights, as well as the European Union Directive on the Rights of Victims of Crime
Directive 2012/20 EU have all contributed to this change, this recognition has been driven primarily
by EU law.
1
By contrast with the general provisions of the European Convention on Human Rights
adopted in 1950,
2
which seeks merely to establish minimum standards in 46 very different States,
the Directive sets out in detail the component elements of rights in a legislative text. Further, it
enjoys probably both direct effect and certainly supremacy and has the overt intention to harmonise
the law in the Member State to which it applies.
3
Increasingly, victims are seen as rights-holders.
There is now a growing consensus that victims of crime have an inherent interest in the manner in
Corresponding author:
Juliette Casey, Bar of Ireland, Dublin. Faculty of Advocates, Edinburgh.
Email: juliette.casey@lawlibrary.ie
1. The Directive came into force on 16 November 2015 the 2012 Directiveor the directive.
2. The UN General Assembly unanimously adopted in 1985 the UN Declarationof Basic Principles of Justice for Victims of Crime
and Abuse of Power (Declaration) in resolution 40/34. The Istanbul Convention requires that victims have the right to legal
assistance and free legal aid under conditions provided by their internal law (Article 57, The Councilof EuropeConvention on
preventing and combating violence against women and domestic violence, (IstanbulConvention)). It further recognises that the
State shall take measures to protect the rights and interests of victims in judicial proceedingsby enabling victims, in a manner
consistent with the procedural rules of internal law, to be heard,to supply evidence and have their views, needs and concerns
presented, directly or through an intermediary, and considered.(Article 56 (1) (d). The Convention has beensigned but not
ratied by the UK. Ireland ratied the Convention on 8 March 2019.
3. Judge S´
ıofra OLearyslecture, Ireland, the ECHR, and EU Law: Parallel Lines and Convergence The Right of Access
to a Lawyer,to The Centre for Criminal Justice and Human Rights (CCJHR)at the UCC School of Law, 9 November
2020. UCC Centre for Criminal Justice and Human Rights Annual This discussion was in the context of Directive
2013/48 at 25:33 but the general observations are also applicable to the 2012 Directive.
which criminal justice is administered with accompanying rights as a participant. This concern is
heightened
4
in cases of sex offending and has resulted in national reviews and inquiries into the
investigation and prosecution of sexual offences
5
in the adversarial criminal jurisdictions of the UK
and Ireland. One of the rights focussed on in these reports was the substantive participatory right to
state-funded independent legal representation for defence applications to question the victim in
relation to sexual history or character evidence at the pre-trial stage. Ireland played a signicant
leadership role in these initiatives and it extended the already established right from the trial to the
pre-trial stage. By contrast, a report commissioned by the VictimsCommissioner indicates that
England and Wales is far behind in providing substantive participatory rights to victims of crime
6
while proposals exist in Scotland and Northern Ireland to follow the Irish approach and place the
right on a statutory footing. The decision of the UK to leave the EU now means that the domestic
implementing measures and any unimplemented provisions are converted to retained EU law by the
European Union (Withdrawal) Act 2018.
7
Further, the Act removes Charter rights from domestic
law on exit day
8
while retaining in domestic law fundamental rights or principles which exist ir-
respective of the Charter.
9
I will explore here some of the challenges for the UK courts in dening
and interpreting these retained law rights. Crucially, any future development will not have access to
the benchmark
10
of either EU law or a written constitution. The UKs relationship with the
Convention is an evolving one and, while general Convention protections continue to apply, for
now at least,
11
I will focus here on implications for the UKs uncodied constitutional order. This
4. Sir John Gillen in his Review of the law and procedure covering the prosecution of se riouss exual offences in Northern
Irelandremarked thatpublic concern overissues raised by sexualoffending hasnever been higherpromptingdemandsfor
reviews inneighbouring jurisdictionsand worldwide. Reviewof Protections for Vulnerable Witnessesin the Investigation
and Prosecution of Sexual Offences. Preface, p.iii. Published, 9 May 2019.
5. In Ireland, the results are contained in the report of the WorkingGroup led by Tom OMalley SC, Review of Protections
for Vulnerable Witnesses inthe Investi gation and Prosecution of Sexual Offences published on 6Augu st2020 (the O
Malley Review). The equivalent response in Scotland took the form of a cross-justice review group, chaired by Scotlands
second most senior judge, Lady Dorrian, publishedon 18 March 2021, (the Dorrian Review)Improving the Management of
Sexual Offence Cases. Furthermore, a consultationis underway in Scotland with the aim of improving victimsexperiences of
the justice system,witha particular focus on sexual offences. Link to the consultation can be found here: consultation The UK
government published its End-to-End Rape Review (the End-to-End Rape Review) on 18 June 2021 End-to-End
Rape Review Report on Findings and Actions.
6. The Role and Rights of Victimsof Crime in Adversarial Criminal Justice Systems, Jane Gordon and Alison Gordon, 17
December 2020, Rights of victims in adversarial criminal justice systems at p. 8. (VictimsCommissioner Report 2020).
7. the 2018 Act.
8. s. 5(4).
9. s. 5(5).
10. Elliot Parliamentary Sovereignty in a Changing Constitutional Landscape, in The Changing Constitution, Ninth edition,
ed Jowell and O
0
Cinneide, OUP 2019 at p. 31. Elliot uses this term when exploring the question whether there exist
benchmarks against which the constitutionality of legislation enacted by the WestminsterParliament may plausibly be
tested.
11. On 14 December 2021, the government published the much-anticipated Independent Human Rights Act Review
(IHRAR), which sets out the conclusions of a ten-month inquiry by an independent panel of experts into the operation of
the Human Rights Act 1998. At the same time, the Ministry of Justice issued a consultation document, Human Rights
Act Reform: A Modern Bill of Rights, the proposals of which bear no resemblance to the recommendations of the
IHRAR (the consultation period ended on 8 March, 2022). The Joint Committee on Human Rights has warned recently
that Government proposals to reform the Human Rights Act risk weakening existing human rights protections. Human
Rights Act reforms would weaken human rights Notwithstanding these warnings, this trajectory was conrmed in the
Queens Speech on 10 May 2022. https://www.gov.uk/government/speeches/queens-speech-2022
Casey 421

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