Legal counsel for victims in rape cases risks 'upsetting the balance' of trials, says long-awaited report

A LONG-AWAITED report into the prosecution of sexual offences has said that providing separate legal representation to victims would “risk upsetting the well-established balance” during trials. 

The report recommends that victims be given their own counsel if they are giving evidence of their sexual history but that such representation should not be in place elsewhere during a trial.

The report was completed following a review into the legal protections offered to complainants in sexual assault cases,. The review was carried out by a five-person working group that was chaired by barrister and law lecturer Tom O’Malley. 

The review was instituted by the previous justice minister Charlie Flanagan following the high-profile Belfast rape trial in 2018. In that trial, Irish rugby players Paddy Jackson and Stuart Olding were acquitted of rape, as were two others who had been charged with lesser offences. 

The 140-page O’Malley report makes a whole host of recommendations around providing support for victims and the training of legal practitioners, but it does not recommend  separate legal representation for victims throughout the entire trial. 

The Dublin Rape Crisis Centre has previously said that victims can be essentially “on their own” during rape trials. 

In the report, the working group said it considered the legal representation issue but that, of those consulted on it, “none of them urged us very strongly to recommend its introduction”.

The report says there “must be equality of arms, in so far as that can be achieved, between the accused and the prosecution” and that “the introduction of separate legal representation for one category of witness throughout the entire trial would risk upsetting that well-established balance.”

The report goes on to state that a prosecutor must not prevent the accused from the getting a fair trial and that any counsel appointed to the victim would also be subject to that same standard.

The working group notes that prosecutors are not allowed “coach” the victim or any other other witness and that this restriction “would apply to any lawyer directly representing a victim”. 

Sexual history

Under Irish law, alleged victims giving evidence cannot be asked about their sexual experience with persons other than the accused, except when such an application is made and a judge grants permission. 

If such an application is made, victims are entitled to legal representation during that application. The working group is now recommending that this legal counsel continues to represent the victim “while the questioning is taking place”. 

The report further recommends that an application to engage in such questioning should be made at a preliminary trial hearing and that the Legal Aid Board “be immediately informed”. 

“The Legal Aid Board, in turn, should endeavour to ensure that the victim is represented by counsel of a level of seniority similar to that of counsel representing the prosecution and defence,” the report states. 

Addressing whether an “outright ban” on questions about a victim’s sexual history could be implemented, the report states that this could “create the risk of an occasional miscarriage of justice”.

“Any statutory provision restricting the questioning of victims about their sexual history must attempt to strike a balance between ensuring a fair trial for the accused and respecting the victim’s rights to personal privacy and human dignity,” the report states. 

On the wider issue of questioning victims, the report recommends that judges, barristers and solicitors be given specialist training to help them understand the experience of victims of sexual crime.

Other recommendations

The report makes a number of other significant recommendations about the prosecution of sexual offences. 

The report recommends that victims in all trials for sexual assault offences should remain entitled to anonymity, irrespective of the outcome of the trial.

Accused persons in all trials for sexual offences should also be entitled to anonymity unless convicted, the report states. This anonymity is currently only in place for rape or aggravated sexual assault trials. 

“If convicted, they may be identified unless to do that would lead to the identification of the victim,” the report recommends. 

A similar review of rape trials in Northern Ireland was published last year and recommended that only close family members of the accused and alleged victim should be allowed attend. 

The O’Malley report makes a similar recommendation. Currently, members of the public can be excluded from rape trials but this report recommends that this be extended to “trials of other sexual offences”. 

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The report also recommends that existing legislation preventing the naming of the accused and victims be extended to include social media. 

The report also calls for a “court familiarisation service” for victims who are due to appear as witnesses. 

The report makes a number of recommendations to reduce the delay in prosecuting sexual crimes. Among the recommendations is drawing up a “guideline on discounts for guilty pleas”.

“Criminal proceedings are obviously expedited where the accused pleads guilty at the
first reasonable opportunity, thereby avoiding the need for a trial or for fixing of a
trial date,” the report states. 

The publication of this report comes over two years after it was first announced by Flanagan and after a number of delays. It will now be submitted to new Minister for Justice Helen McEntee.

- With reporting by Peter McGuire

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