Bill of Rights
Sir John Gillen, former Lord Justice of Appeal of Northern Ireland
"Ours is a constitutional democracy that is designed to ensure that the voiceless are heard, and that even those who would, given a choice, have preferred not to entertain the views of the marginalised or the powerless minorities, listen."
Mogoeng Mogoeng, Chief Justice of South Africa 1
Introduction
[1] I am former Lord Justice of Appeal in Northern Ireland (retired 2017) and the author of a Civil and Family Justice Review in 2017. Of more relevance to this Committee, in April 2018 I was commissioned to carry out a Review into the Law and Procedures in Serious Sexual Offences in Northern Ireland. I reported on that matter in April 2019.
[2] Whilst I am prepared to answer questions on the general concept of a Bill of Rights, my main focus is to view the concept of a Bill of Rights through the prism of victims' rights in the context of serious sexual offences.
The rights of victims of sexual violence
[3] The conclusion at which I arrived in my 2018 Review was that the current system for investigating and prosecuting crimes of rape and other serious sexual offences in Northern Ireland is manifestly inadequate. Hence I made over 250 recommendations for change. The rule of law for complainants/victims in this area has fallen short for all too long .Arguably the manner in which they are treated within the justice system lacks sufficient compassion, dignity and respect for them. In many respects complainants /victims are denied equality of treatment with other actors in the process and to that extent suffer discrimination.
[4] Despite the existing raft of international standards to which I shall shortly refer and our current domestic legal protections for complainants /victims the overwhelming majority of offences of a serious sexual nature go unreported, large numbers of complainants drop out of the system after initial involvement, prosecutions are falling and the rate of conviction is extremely low. As I have pointed out in my review whilst I strongly urge everyone to engage fully with and have confidence in the criminal justice system nonetheless I understand the reasons why this is manifestly not happening.
[5] In marginalised communities including BAME, the elderly, those with a physical or mental disability, travellers and the LGBT+ community, these problems are even more acute and disturbing.
[6] Whilst some men are complainant/victims, the overwhelming majority of those being failed by the system are children and females.
[7] Gross delay, grave and at time unjustified intrusion into the private lives of complainant/victims, lack of understanding of the impact of the trauma of sexual attack, a public perception that chances of conviction are low and not worth the publicity, social media coverage, exposure to the public glare and the trauma of a court trial and a lack of confidence that the truth will emerge all contribute to the crisis in the system.
[8] Since my report in 2018, I do not have the up-to-date statistics for Northern Ireland, but in England and Wales in 2019, 55,529 rapes were reported to the police with only 702 convictions. Only between 1% and 3% of complaints of rape result in a charge. Reports of serious sexual assault are rising but prosecutions are falling.
[9] Rarely can there be such a stark example of competing rights and responsibilities within our society. On the one hand there is an obligation on the State to ensure that those who are accused of these crimes are accorded a fair trial and that their rights are firmly protected. Indeed my Review addresses both expressly and impliedly the gaps in the rights of those who are accused of these crimes. On the other hand, there are the obligations of the State to those who have suffered a violent sexual crime that strikes at the whole concept of human rights and bodily integrity. Those obligations are much wider than simply working for the conviction of a perpetrator. Those victims have a right to be treated with dignity and respect on the path to trial and in the court process itself .Importantly, they too must be afforded a fair and just remedy in law.
Existing rights of victims/complainants in sexual offences
[10] In recent years rights of victims in sexual offences have been recognised to some extent. The Sexual Offences (Northern Ireland) Order 2008 overhauls the law by refocusing on critical issues such as consent, the protection of sexual autonomy and compliance with rights in the European Convention on Human Rights.
[11] The Victim Charter was placed on a statutory footing in Northern Ireland in 2015 accompanied by a range of supplementary documents including an easy read guide and young person's guide to the Charter. This Charter provides victims of relevant information that clearly sets out what they can expect as they move through the criminal justice system. It is complemented since December 2014 by an information leaflet for victims of crime. A Witness Charter was also published in 2017 setting out the entitlements of, and standards of service for, witnesses of crime.
International human rights standards
[12] International Human Rights Law places a number of specific positive obligations on the Northern Ireland Executive to safeguard the rights of individuals who have been a victim of crime and witnesses.
[13] Serious sexual offences engage a number of rights under the international standards, including the prohibition on torture, inhuman and degrading treatment and the right to private and family life (including the inherent dignity of the person). 2 There is also a positive obligation on the State to ensure that an appropriate legal framework is in place to protect individuals from human rights abuses and violations.
[14] The UN Human Rights Treaty Bodies, including but not limited to the Committee on the Elimination of Discrimination against Women (CEDAW), have regularly emphasised States Parties' obligations in relation to domestic and sexual violence and abuse.
[15] In 2015, the EU Directive 2012/29/EU on establishing minimum standards on the rights, support and protection of victims of crime was placed on a statutory footing in Northern Ireland by the Victim Charter.
[16] Specifically on the issues of violence against women and the sexual abuse of children, the Council for Europe has developed two treaties of note. First, the Convention on Preventing and Combatting Violence against Women and Domestic Violence ("the Istanbul Convention"). This applies to all forms of violence against women, in particular gender based violence. The UK Government has signed but not ratified the Istanbul Convention.
[17] Secondly, the Convention on Protection of Children against Sexual Exploitation and Sexual Abuse ("the Lanzarote Convention") ratified by the UK in 2018, requires States to adopt specific legislation and take measures to prevent sexual violence to protect child victims and to prosecute perpetrators.
[18] In broader terms, the right to remedy is also protected for those individuals whose rights have been violated. The legal source of this will be dependent on the origin of the right violated. The UN Human Rights Committee has stated "such remedy should be appropriately adapted so as to take account of the special vulnerability of certain categories of persons, including in particular children". 3
[19] Human rights standards require that the States take the necessary measures and special protection to avoid "re-traumatisation in the course of legal and administrative procedures designed to provide justice and reparation". 4
[20] The EU Directive recognises that victims of gender based violence are particularly susceptible to secondary and repeat victimisation and requires that Member States ensure that measures are available to protect such victims. 5
[21] The UN Declaration of the Elimination of Violence against Women requires States to ensure that the "re-victimisation of women does not occur because of laws insensitive of gender considerations, enforcement practices or other interventions". Similarly, the UN Committee against Torture requires that "judicial and non-judicial proceedings shall apply gender sensitive procedures, which avoid re-victimisation and stigmatisation of victims of torture or ill-treatment".
[22]The United Nations Convention on the Rights of the Child sets out minimum standards for children's rights across all areas of their lives such as civil and personal protection ,health, education and welfare .It highlights that as rights holders they are entitled to an obligation on the part of the State to ensure that measures and procedures ,including court and processes, are in place to realise those rights .It affords particular rights to any child in contact with the criminal justice system.
[22] It is also worthy of note that the Lanzarote Convention requires that the State Party adopt a protective approach towards child victims "ensuring that investigators and criminal proceedings do not aggregate the trauma experienced by the child and that the criminal justice response is followed by assistance, where appropriate".
The rights of complainants/victims in the wake of the Gillen Review
[23] Subsequent to the publication of the Gillen Review, a Gillen Review Programme Team was set up within the Department of Justice. The Criminal Justice Board have agreed on an implementation plan in June 2020. There are 14 strategic priority areas which are often inter-dependent which emphasise the improvements of the experience of complainants in the criminal justice system. The aim is nothing short of transformation. It works on the basis of a multi-agency representation across departments as well as including membership of support services.
[24] 14% of the Gillen recommendations have been completed e.g. remote evidence centres for children and vulnerable and intimated adults, draft committal hearings reform which will reduce delay and prevent stress, legal representation for complainants is about to be introduced, delay has been reduced substantially in the cases of children with moves towards a Barnahus system for wrap around services for children, steps to address the question of previous sites of experience, advanced training of the judiciary and the legal profession, consideration of public and educational campaigns on myth busting, the introduction of case progression officers. In short work in ongoing on 70% of the remaining recommendations over a five year period. This is all happening within a wider framework of victims' needs and issues. However ,troublingly,a five year timetable has been set out for these reforms .Complainants /victims demand and need swifter resolution and reform.
[25]The LCJ has introduced radical changes for case management in the Crown Court including protocols for vulnerable witnesses and defendants .
The effect of Brexit
[26] The Committee has received an array of evidence on the effect of Brexit in Northern Ireland. Hence I consider it unnecessary for me to trespass to any material degree on what has already been before the Committee in great detail.
[27] In short, taken together the provisions of Article 12 of the Northern Ireland Protocol relating to the implementation of the Protocol and the status of EU law in effect maintain the existing key elements of EU law as it relates to equality and non-discrimination issues. In essence, it would keep the present quasi-constitutionalised EU standards in place as they relate to the equality of opportunity strand of the Belfast Agreement at least. However, it has to be borne in mind that the protocol may lapse in four years if the required level of cross-community consent in the Assembly is not obtained.
[28] It now appears that the much debated Internal Market Bill which would have conferred extra Henry VIII powers on UK Ministers to amend, vary or suspend the provisions of the Protocol itself has been dropped.
[29] However the decision has been take to exclude the EU Charter of Fundamental Rights from the general "carry over" of EU law provided by the EU Withdrawal Act 2018. The Charter provided important provisions dealing with the right to be treated with dignity, right to private life, rights of the children, rights of the elderly, rights of those with disabilities and the right to effective remedy and a fair trial etc.
[30] Nonetheless the general principle of EU law survives and it can use the Charter to interpret the relevant rights albeit the Charter is no longer a stand-alone right.
The benefits to victims/complainants of a Bill of Rights
[31] A Bill of Rights could provide a useful supplement to the ECHR relevant to Northern Ireland. It could embrace appropriate internal instruments and experiences. An example of this is in Wales where the devolved Government have introduced the United Nations Convention on the Rights of a Child into law.
[32] To introduce a Bill of Rights in Northern Ireland would bring us into line with many other countries throughout the civilised world who have introduced a Bill of Rights. Scotland and Wales are looking at similar possibilities.
[33] It would introduce a rights based approach setting out fundamental rights and values affording an opportunity to define the architecture of a rights based society.
[34] Crucially it could be part of a wider educative, societal and cultural process providing a tool for all citizens to understand their rights and responsibilities. It could provide an opportunity for all of us to better realise our highest ideals and furnish a focus for a collective memory and collective endeavour. The voice of hitherto excluded and minority communities could be highlighted and heard. In essence it could provide a pathway to recognised rights and responsibilities and nourish a rights based legal culture.
[35] It is important to recognise that a Bill of Rights does not necessarily represent a fundamental shift towards judge led rights but rather provides a wider vista by way of an educative process.
[36] It could provide a framework to look at competing rights. An example of this would be to acknowledge that the conventional approach of a trial which acknowledges only two parties namely the State and the accused falls short of recognising the rights of complainants /victims during the course of a trial process.
[37] It could serve to recognise rights that existed in the Charter which currently will only apply insofar as EU law currently applies.
The disadvantages of a Bill of Rights
[38] My primary fear is that a Bill of Rights would be a piece of legislation passed by the Assembly that would set out legal rights in general terms but would lack the specificity or granularity to render those rights justiciable. To do so would raise hopes and expectations which would be dashed when it proved to be the case that these rights were not justiciable.
[39] The danger in a long drawn out debate about the contents of a Bill of Rights, is that it might lead to a forlorn tribute to the principle of compromise and an imperfect trade off which would drown in generalities and represent no more than symbolic legislation with declarations of intent that would carry no weight.
[40] There is a danger it serves to politicise the judiciary in so far as any of those rights become the subject of justiciable interpretation
[41] We do not have a written constitution. Rights are inserted by legislation. Whilst of itself a Bill of Rights might indicate a pathway, it may well be unlikely to provide much more than that. Even the ECHR which was ratified in 1950, took 25 years before it really picked up momentum and 50 years before it was translated into law in the UK in the Human Rights Act 1998.
[42] Victims/complainants require closely argued, carefully implemented and detailed legislation which is specific, targeted, clear and understandable with all the necessary granularity to ensure that those rights are enforceable. They require more than target duties, pathways and declarations of intent. Thus for example would the Victim Charter be more effective if the rights therein declared were the subject of legislation making those rights justiciable and enforceable in a granular fashion?Would the UNCRC be more effective for children if it was part of domestic legislation?
[43]I have briefly set out above some of the raft of international standards and assertions of rights which currently exist .Why then are the rights of complainants /victims currently so bereft of meaningful effect in the manner I have set out in the Review ? Why is it going to take a further 5 years to fully address them? Is this testament to the lack of granularity and justiciable content in current rights based instruments?
[44] In truth, virtue and effectiveness need to be measured on different scales. For too long victims have had their expectations raised only to be dashed by vacuous promises of action. I have some doubts as to whether a Bill of Rights is therefore a panacea for the ills that need to be addressed by victims. They seek not aspirational homilies but rather positive granular achievements for all to see.
Conclusion
[45] I do not envy the task of the Committee in making recommendations about a Bill of Rights. There are compelling arguments on either side. The elevation of a rights based culture is something to be earnestly desired .However if that is not accompanied by a degree of granularity that makes those rights justiciable and therefore enforceable the urgent expectations and needs of complainants/victims will be yet again dashed .
References
1 Ambrosini v Sisulu [2012] ZACC 27.
2 Article 8 of the European Convention on Human Rights.
3 UN Human Rights Committee, General Comment No. 31 – Nature of the General Legal Obligation imposed on States Parties to the Covenant, 29 March 2004 para 15.
4 UN Committee v Torture General Comment 3: Implementation of Article 14.
5 EU Directive 2012/29/EU.
