Re-Examining the Boundaries of Cross-Examination in Light of the Belfast Rape Trial

Introduction

The cross-examination of witnesses in Ireland and elsewhere has been an integral part of the legal system’s fairness, justice and equity. Most recently, the case of R v Jackson & Olding (The Belfast Rape Trial) explored this facet of the inner workings of the courtroom, and the question was raised as to what length the courts are willing to go to protect the defendant’s right to a fair trial. The limits of cross-examination remain particularly important  in many fields, including  dismissal law and criminal law, however this article will specifically focus on the use of cross-examination in the prosecution of sexual offences and attempt to identify possible remedies in light of the Trial  that divided the country.

Cross-examination

Cross-examination is a central element of a trial,  given significant attention during student courses on the law of evidence, as well as professional barrister training courses on trial advocacy. It can be defined as ‘the examination of a witness who has already testified in order to check or discredit the witness's testimony, knowledge, or credibility’.^[1] While  closing arguments are often thought to be the most memorable  moments in a trial, the cross-examination of witnesses may often be the turning point  and deciding factor in determining the defendant’s guilt.^[2]

The contentious nature of cross-examination draws scrutiny when controversial issues arise, as occurred in the Belfast Rape Trial, in the media. Often this usually occurs where exchanges are captured  involving seemingly hostile behaviour towards the witness or victim by the opposing counsel. This blogpost will weigh the merits of cross-examination against its flaws and attempt to find any remedies that could be applicable in making this process less demeaning and more humane, while remaining an impartial and helpful method of investigation.

Merits

Although many controversial cases of cross-examination exist, the method of eliciting inculpatory evidence ostensibly has redeeming qualities, allowing defendants to be exonerated of their charges if innocent and conversely, allowing key witnesses to incriminate guilty parties. Twentieth Century American jurist John Henry Wigmore summarised the advantages of cross-examination as: ‘the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it’.^[3]

Not only is it a routine method used by lawyers, its existence upholds the right to a fair trial of a person charged with a crime. Bunreacht na hÉireann dictates that ‘no person shall be tried on any criminal charge save in due course of law’.^[4] The right to trial under due course of law includes the presumption of innocence which is, although not listed explicitly in the Constitution, implied by Article 38.1. This ethos was reiterated in the decision of Re Haughey, which upheld a right to cross-examine as being fundamental to fair procedures and constitutional justice.^[5]  These steps are necessary in maintaining a ‘sovereign, independent, democratic state’.^[6]

Mr Eamonn Leahy SC would go one step further^[7] and argue that: ‘Cross-examination is there in order to allow people to defend and vindicate their good name and is a constitutional right . . . the right to confront our accuser promptly, on him assessing his direct evidence, is a constitutional right.’^[8] Here it is clear that the right to cross-examine is closely intertwined with the right to a fair trial in Ireland. Currently, however, there is no explicit right to confrontational cross-examination. The 1998 case of Donnelly v DPP affirmed the importance of cross-examination as a vital element of due process, yet states that the physical presence of a witness is not required and that a testimony made under oath would suffice.^[9]

It can therefore be established that cross-examination is exceedingly important in the eyes of legal practitioners for obvious reasons. However, from a non-legal perspective it is unclear whether the virtues of cross-examination stand up to scrutiny.

Flaws

Historically, law has been the frequent subject of popular entertainment and through movies like ‘To Kill a Mockingbird’, the majority of society has become accustomed to seeing petrified victims take to the stand only to be intimidated by a menacing lawyer.  While such action is celebrated by persons like Wigmore,, Louis Nizer, a late Jewish-American trial lawyer argued; ‘[i]n cross-examination, as in fishing, nothing is more ungainly than a fisherman pulled into the water by his catch.’^[10] Such a blanket criticism of cross-examination is unjustified, but he perfectly encapsulates the stereotypically belligerent behaviour that frequents our screens and our courts.Nizer’s quote is further indicative of an underlying issue. Although the need to balance competing rights is fundamental, the process can be arduous on the witness or plaintiff and play out chaotically in court. This is particularly true in the prosecution of sexual offences, where an acutely vulnerable person may be subjected to intense, personal questioning and public humiliation.. Ultimately, while the purpose of cross-examination is to protect the rights of the innocent, but the social cost and the effect on the victim must be taken into consideration.

In order to illustrate this point, it is useful to discuss the infamous ‘Belfast Rape Trial’, whichcaused ripples throughout both Northern Ireland and the Republic of Ireland in 2018^[11] when a woman’s underwear was held up in court to merit a counsel’s cross-examination.^[12] The proceeding exchange between the victim and the accused’s lawyer  caused public outrage and questioned the validity and legality of his presentation of such a personal piece of evidence. Is there a line that cannot be crossed in questioning? How is this rule established and by whom? These are questions that are poignant given the circumstances in the case and pertinent given the flawed aspects of cross-examination. The courts could be more concrete in their recognition of boundaries that ought to be respected or when determining which lines of questioning are appropriate.

The Belfast Rape Trial

In 2017, charges were brought against Irish International rugby players Paddy Jackson and Stuart Olding, alongside Blane McIlroy and Rory Harrison, for the rape of a young woman. They denied these allegations and claimed that all acts were consensual. Her identity was kept hidden from the public due to a rule in the United Kingdom that protects ‘vulnerable witnesses’ from the harsh and unnerving aspects of the trial process.^[13] Hence, a blue veil was drawn across the witness box as she was giving evidence, preventing her from having to look at her alleged attackers.^[14] Similar laws exist in the Republic of Ireland, such as the Criminal Justice (Victims of Crime) Act 2017 which empowers judges to provide special measures to a victim where there is a risk that testifying will provoke secondary victimisation.^[15] It is also noteworthy that under section 21 of the aforementioned act, the trial judge may give directions about questions in cross-examination that concern aspects of the victim’s private life, unrelated to the offence.

This is an important step in recognising how daunting testifying can be and is a necessary and straightforward precaution in protecting the wellbeing of the complainant, something that was evidently lacking in R v Jackson & Olding. The woman is legally entitled to lifelong anonymity in Northern Ireland, however the public is allowed to observe rape trials and her name to circulated rapidly on social media.^[16] Interestingly, the UK’s legal system allows for the accused parties to be named immediately, compared to the Republic of Ireland, where Paddy Jackson’s name would have remained unknown.

Overlooking the case’s inflated media exposure and lack of protection afforded to the complainant, the persisting concern in its wake is the ostensible need to constrain the limits of  cross-examination. The accuser gave evidence on just one day out of the nine-week trial but was cross-examined by each of the defendant’s lawyers and spent a total of eight days in the witness box.^[17] Jackson was represented by Queen’s Counsel Brendan Kelly who focused on the woman's behaviour on the night in question when the incident occurred. CCTV footage was shown that criticised her ‘flirtatious behaviour’ towards other men in the nightclub and Kelly accused her of going to the VIP area simply to meet celebrities.^[18] These inferences of her promiscuity were made in an attempt to discredit her testimony, which may have been protected in Ireland under the guidelines of section 21 of the Criminal Justice (Victims of Crime) Act 2017.

A particularly disturbing and controversial aspect of this trial was the admittance of the woman’s underwear from the ‘rape’ as evidence. The ‘blood-soaked garment’^[19] was passed around the room, to the jury then to the judge, upon Kelly’s request. The implications of this act set a troubling precedent and imply that a woman’s dress is an excuse for sexual assault, which could potentially skew the jury’s opinion and open floodgates for other spurious defences. In a similar case in the Republic of Ireland in 2018, a seventeen-year-old’s underwear was used as evidence which prompted the widespread use of ‘#ThisIsNotConsent on social media.^[20]  Arguably, the subsequent international frenzy following these cases amounts to a strong mandate for reform, such that the scope of action open to counsel needs to be defined and regulated.

In the Republic of Ireland, the right to privacy is one of the unenumerated rights that stem from our constitution, whereby ‘The state guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen’.^[21] Article 40.3 alone is a valid justification for needed reform in this area. Although the defendants in the ‘Belfast Rape Trial’ were acquitted of all charges, the momentous response to the case is certain to leave a lasting impression in the minds of many and may be the catalyst needed to encourage immediate action.

Remedies

Certain areas of law are averse to progress, and sexual assault cases are greatly affected by a stagnant system. A study conducted in Australia and New Zealand analysed tactics employed by lawyers during cross-examinations in cases of rape. Researchers found that there was little to no difference in the methods used in modern-day proceedings and those of the 1950s, which include; endorsing the defendant’s character, highlighting the victim’s lack of injury and questioning their lack of resistance.^[22] It was concluded that, amoung other solutions, the manipulation of archaic stereotypes of victimisation must be stopped.

Other remedies could consist of more in camera proceedings and jury sequestration as well as informative campaigns. Following a 9.3% rise in sexual assault in Northern Ireland from 2017 to 2018, the PSNI launched ‘No Grey Zone’, a media campaign aimed to educate young people about the definition of sexual assault, particularly important now in the aftermath of R v Jackson & Olding.

Conclusion

Ultimately, it ought to be concluded that t cross-examination is a tool which has the capacity to be immensely destructive to a victim’s life, yet paradoxically, as  Mahoney notes, may be the ultimate deciding factor of a judgement.^[23] Somewhat predictably, the complainant in the Belfast Rape Trial was made to publicly relive a harrowing and traumatic event, yet unfortunately, despite her sacrifice, was left unvindicated.. Her case, and many others like it, suggest a need for more defined limitations of cross-examination. Such a response would hopefully  succeed in avoiding the replication of her experience  and restore victims’ faith in a system that is there to vindicate their rights.

 

^[1] Miriam Webster Dictionary Online

<https://www.merriam-webster.com/dictionary/cross-examination> accessed 12th October 2019.

^[2] Kevin J. Mahoney, Relentless Criminal Cross-Examination (James Publishing 2008).

^[3] John Henry Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law (2nd edn, Little, Brown & Co 1923) [1367]

^[4] Article 38.1.

^[5] Re Haughey [1971] IR 217

^[6] Article 5.

^[7] Christine Newman, ‘Counsel demands constitutional right to cross-examine Gogarty in traditional way’ The Irish Times (Dublin, 26 January 1999).

^[8] Bailey & Bovale Developments Ltd v Flood (HC, 1999).

^[9] Donnelly v DPP [1998] 1 IR 321

^[10] <http://www.greatthoughtstreasury.com/author/louis-nizer> accessed 16th October 2019.

^[11] Keith Duggan, ‘Uncomfortable questions raised by Belfast rape trial continue to resonate’ The Irish Times (Dublin, 15 June 2019).

^[12] Conor Gallagher, ‘Inside Court 12: the complete story of the Belfast rape trial’ The Irish Times (Belfast, 28 March 2018).

 

^[13] UK Youth and Criminal Justice Act 1999.

^[14] Gallagher (n 11).

^[15] Criminal Justice (Victims of Crime) Act 2017

^[16] Gallagher (n 11).

^[17] ibid.

^[18] ibid.

^[19] ibid.

^[20] ‘Irish Outcry Over Teenager’s Underwear Used in Rape Trial’, BBC News (14 November 2018)

^[21] Article 40.3.

^[22] Sarah Zydervelt, Rachel Zajak, Andy Kaladelfos and Nina Westera, Lawyers’ Strategies for Cross-Examining Rape Complaints: Have We Moved Beyond the 1950s? (British Journal of Criminology 2016)

^[23] Mahoney (n 3).