Sex Offence Trials
Cross-Examination of Victim
In a trial for a rape offence or a sexual assault offence, [when a person pleads not guilty] evidence is not to be allowed other than with the consent of the judge and no questions will be asked in cross-examination, about the sexual experience of the complainant with any person.
The Judge shall not give leave other than in an application in the absence of a jury and then only if he has satisfied that will be unfair on the accused person to refuse the evidence to be adduced.
He or she must be satisfied that the evidence might reasonably be such as to be critical to acquittal, which would not otherwise occur. Even if leave is given, the judge may direct that a question may not be asked or that it may only be asked with a fresh specific application.
Where an application is made, the complainant/victim is entitled to be heard and may be legally represented. Notice of intention to make the application must be given on behalf of the accused person as soon as practicable after the commencement of the trial.
The prosecution must notify the complainant of his or her right to be legally represented. The case may be adjourned to allow an opportunity for representation.
Exclusion of Public
Generally, the public is excluded from rape and sexual offences proceedings. Officers of the court, persons concerned in the proceedings and bona fide the representatives of the press and such other persons as the court may permit, may be permitted to remain.
Where a person is charged with a sexual assault offence, no matter that may allow members of the public to identify the person as the complainant in relation to the charge may be published in the press or broadcast media other than as authorised.
The accused may apply to the court for a direction that the publication is required to induce persons to come forward who are likely to be needed as witnesses and the conduct of the defence would be likely to be adversely affected otherwise.
The judge, if satisfied that the effect of the above is to impose a substantial and unreasonable restriction on the reporting of proceeding at the trial and that it is in the public interest to remove or relax the same, may direct but the restriction shall not apply in so far as specified.
After a person is charged with rape, no matter likely to leave members of the public to identify him as the person against whom the charge is made shall be published in a written publication, except as authorised by a direction of the Court or after conviction. If the person applies to the judge that this provision should not apply the Judge shall direct otherwise, provided that the complaint is not thereby identified.
Publications in breach of the above provisions are an offence. There is provision by which a company individual or the management and/or directors of a company or business may be convicted.
Corroboration of Evidence
Formerly, it was the case that the uncorroborated evidence of the complainant would not generally be sufficient to convict the accused in a sexual offence case, in the absence of warnings as to the danger of the conviction on uncorroborated evidence. This rule was amended so that it is the matter for the judge having regard to all the circumstances of this case whether or not to give such warning.
A person accused of rape may have if the evidence does not so warrant a conviction for rape, be convicted of sexual assault or certain other alternative offences. Similarly, persons charged with certain categories of sexual offences may be convicted of other categories of offences.
Many sexual offences arise from an incident of which only the accused and the complainant have first time knowledge. At common law, a practice developed of requiring corroboration in respect of sexual offences. Corroboration means independent evidence in respect of the material facts required to be proved.
Judges determined whether the evidence was capable of amounting to corroboration and instructed the jury to determine whether corroboration, in fact, existed in the circumstances.
Corroboration must implicate the accused in a material respect in relation to the commission of the crime and the accused being the person who committed it. It is not sufficient that it merely bolsters evidence. It must link the accused to the crime. If the evidence equally supported the defendant’s position, it would not be deemed capable of being corroborative and the jury should not consider it as such.
A judge/ jury could convict in the absence of corroboration, but the judge was obliged to warn the jury of the danger of so doing. This principle applied to all sexual offences that were not corroborated. The failure to give the requisites of warning could mean the jury’s verdict being satisfied by the Court of Criminal Appeal.
A jury could convict an accused in the absence of corroboration. However, the trial judge had to warn of the dangers of conviction without corroboration.
Under the above-mentioned 1990 Act requirement for corroboration is now discretionary. It is not given only if there is a reason to believe that the complainant’s evidence may not be reliable.
Giving Evidence
Where evidence is being given by a child through video link, neither the judge, nor the barrister or solicitor involved in the examination of the witness shall wear a wig or gown.
This is extended by the 2017 Act to the giving of evidence, in all circumstances, by children under the age of 18 years. The requirement not to wear a wig or gown is no longer limited to those instances where a child gives evidence by video link.
The 2017 Act provides for the giving of evidence from behind a screen or other similar device. A judge may direct the giving of evidence by a child from behind a screen (or other appropriate device) in the courtroom.
The facility of a screen seeks to protect a child from potential intimidation, or feeling of intimidation, by the sight of the accused while giving evidence in court. In such circumstances, it may be more appropriate for the child to give evidence through a live television link but, for various reasons, the child might wish to be heard in person before the judge, and jury when present, and this section ensures such provision is available.
A direction by the judge for a child to give evidence from behind a screen may be given in the interests of justice, such as ensuring that a child can give a full account of the acts complained of without feeling intimidated.
However, the interests of justice also demand that the accused be able to see and hear the witness giving evidence. For practical and other reasons, the judge, jury (if a jury trial), legal representatives and court appointed persons, such as an intermediary, will need to be able to see and hear the witness giving evidence and be seen and heard by the witness.
It is possible that not every courtroom could accommodate the type of screen envisaged in this section. It is possible to transfer of proceedings where the court is satisfied that it is desirable that evidence be given in the proceedings from behind a screen.
Cross-Examination
The 2017 Act prohibits personal cross-examination of a child witness by the accused where he or she is charged with
- sexual offences,
- offences involving violence or the threat of violence to a person,
- child trafficking and pornography offences,
- offences under the Criminal Law (Human Trafficking) Act 2008 and
- offences consisting of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of an offence mentioned above
Where the child is under the age of 14 years, the court must prohibit personal cross-examination by the accused (unless the interests of justice require otherwise) and where the child is under 18 years of age the court may prohibit such cross-examination.
There is provision for alternative cross-examination where an accused person is prohibited from personally cross-examining a child witness. The court must invite the accused to make arrangements for legal representation to act for him or her for the purpose of cross examination of the witness. However, where it becomes clear that the accused has made no such arrangements, it is open to the court to appoint a qualified legal representative to act in the interests of the accused.
The 2017 Act seeks to ensure that the interests of an accused are not prejudiced by the fact that he or she is prevented from engaging in personal cross-examination. The judge must inform the jury that no inferences may be drawn from the fact that the accused has not been permitted to personally cross-examine the witness or that the cross-examination was conducted by a court appointed legal representative as opposed to a person acting as the accused’s own legal representative.
Video Evidence
The 2017 Act increases from 14 to 18 years the upper age threshold for out-of-court video recording of a complainant’s evidence. This also applies to a child witness, other than the accused, who is under the age of 18 years. Other g safeguards to protect the rights of accused persons continue to apply.
The application of these provisions and powers is, at all times, subject to the control of the court. Video recorded evidence (or a part of such evidence) must be excluded if the court is of the opinion that, in the interests of justice, it should not be admitted.
Where it is appropriate that evidence is given by video link, and such facilities are not available in the court room at which the trial is scheduled, then the proceedings can be transferred to a court room where such facilities are available. This extends the power to transfer a case to another court room where evidence is to be given behind a screen or other similar device but such cannot be facilitated in the current court room.
Disclosure
The 2017 Act regulates disclosure of the content of third party counselling or therapy records in sexual offence trials. The disclosure of counselling or therapy records in the context of criminal proceedings, especially in relation to sexual violence, touches on a number of sensitive issues and balancing of rights.
The right to a fair trial for an accused has to be acknowledged. However, so too does the right of the victim not to feel further violated in the criminal justice process. There is a process for the disclosure of such records, where appropriate. A decision to disclose this type of record to the defence side will be the subject of a separate pre-trial hearing and the records will be disclosed only to the extent where the court considers that it contains information relevant to the issues at trial.
These proposals were developed on foot of recommendations in the fourth report of the Special Rapporteur on Child Protection but will apply to all victims of sexual offences.
Application to Disclose
The prosecutor must disclose the fact of the existence of a “relevant record”, i.e., a counselling or therapy record, to the defence, he or she cannot disclose its content without the leave of a judge of the court concerned.
The accused must make a written application to the court if they wish to seek disclosure of the content of a counselling or therapy record. The “disclosure application” must specify the grounds relied on to establish that the record is likely to be relevant to the trial or to the competence of the complainant or a witness to testify.
There is a list of factors, none of which, on its own, is sufficient to establish relevance in the context of a disclosure application. It includes assertions that the record may relate to the credibility of the complainant, or may disclose a prior inconsistent statement of the complainant.
The accused must put the parties concerned, i.e. the complainant, the person who has control or possession of the record and any other person to whom the accused believes the relevant record relates, on notice that a disclosure application is being made. The judge can, at any time, order that a disclosure application be notified to any person to whom he or she believes the relevant record may relate.
Disclosure Procedure
In determining, at the hearing whether the content of the counselling record should be disclosed to the accused the court shall take the following factors, in particular, into account:
- the extent to which the record is necessary for the accused to defend the charges against him;
- the probative value of the record;
- the reasonable expectation of privacy with respect to the record;
- the potential prejudice to the right to privacy of any person to whom the record relates;
- the public interest in encouraging the reporting of sexual offences;
- the public interest in encouraging complainants of sexual offences to seek counselling;
- the effect of the determination on the integrity of the trial process;
- the likelihood that disclosing, or requiring the disclosure of, the record will cause harm to the complainant including the nature and extent of that harm.
The judge must hold a hearing for the purpose of determining whether the content of the counselling or therapy record should be disclosed to the accused. The owner of the record, the complainant and any other person to whom the record relates is entitled to appear and be heard at such a hearing.
Order of Disclosure
The judge can order disclosure of the content of the relevant record to the accused following a hearing. The judge has to be satisfied that the disclosure application was correctly made and that disclosure is necessary to safeguard the rights of the accused.
Conditions may be attached to an order such as that a part of the content of the relevant record is to be redacted, or that the relevant record is not to be copied. The record cannot be used in any other proceedings.
The judge must provide reasons for ordering, or refusing to order, disclosure of the content of a relevant record to the accused. This will ensure clarity for the parties and facilitate effective consideration of an appeal.
The purpose is that, in normal circumstances, a disclosure application should be made before the commencement of the accused’s trial. This is directed at avoiding delays in criminal trials for sexual offences and thereby adding to the trauma of complainants. However, there may be circumstances, in the interests of justice, where a late application would be justified and the judge is permitted to direct that the accused may make a disclosure application after the commencement of the trial. This is intended to be the exception and not the rule. The judge must be satisfied that there are exceptional circumstances which warrant this course of action.
The public are excluded from the hearing.
Representation
There is provision for legal representation for the complainant or witness (e.g., the parent of an alleged child victim who participated in the child’s counselling) for the purposes of consideration of a disclosure application. This type of application would be akin to an application by an accused to hear evidence of a complainant’s previous sexual history and, for that reason, it is considered that the same arrangements with regard to legal representation should be applied.
The above provisions do not apply where the complainant or witness has expressly waived his or her right to have a request for disclosure of the content of a relevant record determined by a judge.
There is legal aid in respect of representation for an accused who is prohibited from conducting a cross-examination in proceedings related to a sexual offence.
Representation for Victims
The 2021 Act provides for separate legal representation for complainants in rape and serious sexual assault cases when application is made to the court by the defence seeking leave to adduce evidence or cross-examine about the complainant’s past sexual experience with any person. It also provides for further amendments of the Civil Legal Aid Act, 1995, and for the proof of foreign convictions in certain cases.
The 2021 Act provides for separate legal representation for complainants in rape and serious sexual assault cases when application is made to the court by the defence under section 3 or 4 of the Criminal Law (Rape) Act, 1981, seeking leave to adduce evidence or cross-examine about the complainant’s past sexual experience with any person.
The trial judge is obliged to ensure that before the hearing of the application he/she is satisfied that the complainant is aware of his/her entitlement to be heard during the application and to be legally represented for that purpose and the complainant has been given a reasonable time within which to arrange for such representation.
Complainants are entitled to legal aid under that Act automatically and free of any financial contribution.
Extended Representation
The Criminal Law (Sexual Offences and Human Trafficking) Act 2024 implements recommendations from the O’Malley Review that allow the barrister who is briefed to represent the victim when an application is being made to engage in questioning a victim on their previous sexual experience to continue to represent the victim while the questioning is taking place. The right to separate legal representation for these applications is also extended to trials for sexual assault, which had not previously been covered under the legislation.
Where a judge has given leave for any evidence to be adduced or any question to be asked, the complainant shall be entitled to be heard in relation to the evidence or the question and, for this purpose, to be legally represented during the adducing of that evidence or the asking of that question. The prosecution shall, as soon as practicable after a judge has given leave in for any evidence to be adduced or any question to be asked, notify the complainant of his or her entitlement to be heard in relation to the evidence or the question and to be legally represented, for that purpose, during the adducing of that evidence or the asking of that question.
The judge shall not permit the said evidence to be adduced or the said question to be asked without first being satisfied that these requirements have been complied with.
If the period between the complainant’s being notified, of his or her entitlements the adducing of the said evidence or the asking of the said question is not, in the judge’s opinion, such as to have afforded the complainant a reasonable opportunity to arrange legal representation of the kind referred to in subsection (5A), the judge shall postpone the adducing of the evidence or the asking of the question (and, for this purpose, may adjourn the trial or proceeding concerned) for a period that the judge considers will afford the complainant such an opportunity.”,
Character Evidence at Sentencing
Where a person has been convicted of a sexual offence specified in the Schedule to the Sex Offenders Act 2001, any character evidence adduced at sentencing must be given on oath or via affidavit.
The 2024 Act allow for the protections of anonymity for the accused, the victim and for exclusion of the public to apply at trials for the other principal sex offences. It removes the obligation for verdicts or decisions and sentences (if any) in proceedings for offences to be announced in public.
Amendments to Defence Act 1954
Persons subject to military law who commit rape, rape under section 4, sexual assault or aggravated sexual assault are liable to be tried by courts-martial only where these offences were committed outside the State. Where such offences occur within the State, they will be dealt with by An Garda Síochána and the civilian courts. Military law will continue to apply where such offences take place overseas as An Garda Síochána does not have jurisdiction.
It provides that a general court-martial does not have jurisdiction to try a person subject to military law for the offences of rape, rape under section 4, sexual assault or aggravated sexual assault unless the offences occurred outside the State.