Could the Gillen Review do more for the falsely accused?
You could be forgiven for not having heard of the Gillen Review. The Criminal Justice Board in Northern Ireland commissioned this review of the arrangements to deliver justice in serious sexual offence cases. Its task was to ‘determine whether current arrangements deliver the best outcomes for victims, defendants and justice; and to make recommendations for improvements’.
Although the review concerns the administration of justice in Northern Ireland, it’s not inconceivable that England and Wales will eventually adopt similar recommendations.
There is much to celebrate in this review. Those making an allegation are referred to as ‘complainants’ rather than ‘victims’. Labelling the complainant as a victim right from the start of the investigation has been controversial, and appears to prejudge the outcome of the investigation, and assume that the defendant is guilty.
Sir Gillen also recommends that courts should not be open to the public but only the press and the relatives of the complainant and defendant would be allowed to attend.
He is in favour of protecting the anonymity of the defendant unless he or she is charged. Those who have been wrongly accused of child sexual abuse (CSA) will have been terrified by the possibility of exposure in the press with its attendant risks. Risks such as threats from the public, sometimes threats of violence, public shaming, and loss of work. A risk that could be even deadlier is that of attracting ‘band waggoners’ – further wrongful accusations which are either malicious, misremembered or fantasy. These can lead to the often criticised ‘corroboration by volume’ where a number of weak cases are thought to prove guilt just because there are lots of them.
Sir Gillen does not agree that it is reasonable to protect the anonymity of those accused of sexual offences up to the point of conviction. He argues that because those accused of ‘other heinous offences such as murder, crimes of unspeakable cruelty to children and other offences of non-sexual extreme violence etc’ are not treated in this way then neither should those accused of CSA or other serious sexual offences.
I disagree with Sir Gillen on this point. Although CSA is an abhorrent crime, there are differences between this offence and other serious crimes. Often there will be no physical evidence that a crime occurred, no body, no visible injuries. In England and Wales corroboration of CSA is not needed in order to reach a guilty verdict so the jury may have to make a decision based on the testimony of the complainant and the defendant alone. If the allegations concern events that are alleged to have occurred decades ago memories are not so reliable and evidence that might have exonerated an individual may have been lost or destroyed. All these factors increase the risk of miscarriages of justice and expose the wrongfully accused to the very real danger of the ‘band waggoner effect’. Therefore, for those that believe ‘it is better that ten guilty persons escape than that one innocent suffer’ there is a strong argument for maintaining the anonymity of those accused of CSA until they are convicted.