Alleged rapists, paedophiles, murderers and kidnappers will no longer be allowed to grill their alleged victims or other witnesses in open court if one of the biggest changes to Jersey’s criminal justice system in 200 years is approved.
At present, defendants in criminal cases are allowed to decline legal representation and effectively act as their own lawyer.
The decision can mean that some complainants in sexual offence cases, for example, come face to face with their alleged abusers on the witness stand, and can be scrutinised by them in great depth – sometimes in relation to highly sensitive matters.
The process can cause them emotional stress, and, much to the concern of the court, can affect the quality of their evidence.
But new legislation put forward this week by the Home Affairs Minister Deputy Kristina Moore this week would change this – if her fellow States Members agree.
Pictured: The new legislation is the biggest potential shake-up to the island's courts in 200 years.
Her Draft Criminal Procedure (Jersey) Law aims to update Jersey legislation – some of which dating from the 1830s and 1940s – so that the island’s criminal procedures “uphold and respect the rights of defendants, but also safeguard the wellbeing of victims and witnesses.”
Part of that involves stopping defendants in cases of false imprisonment, gross indecency, incest, indecent assault, indecent exposure, kidnapping, manslaughter, murder, rape, sodomy, and a number of other sexual offences including grooming a child from cross-examining witnesses themselves.
Instead, the defendant must either find a legal representative to do so instead, or allow the court to make a decision as to whether the witness should be questioned at all. There is also a provision in the law restricting jurats or jury members from drawing “any inferences” from the fact the defendant has been forbidden from questioning witnesses.
Using threats or intimidation against witnesses, jurors or anyone else involved in legal proceedings will also carry a penalty 10 years imprisonment and an unlimited fine.
The law would have prevented situations such as that of Chris Roy Bacon, a convicted paedophile and former music teacher, who chose to represent himself during his trial. He therefore scrutinised several of his targets – some of whom were already psychologically scarred from his crimes – in person.
Pictured: When rape victims give evidence in court, it is often referred to as "the secondary rape."
Commissioner Michael Birt described the effect as “extremely harrowing” and tantamount to “secondary victimisation.”
In sentencing, he told Mr Bacon: “…you pleaded not guilty to all the charges and you made your victims come to court and relive what had happened to them. They also had to face being questioned by you personally which must have been an additional stressful factor.”
The draft law also makes a new rule whereby a ‘hung jury’ result – non-unanimous or no majority verdict – will either give the prosecution the opportunity to request a retrial or for the defendant to be discharged from proceedings.
Government officials say the new legislation builds on decades of lessons learned about vulnerable people. They say that the new rules should allow victims, witnesses and the accused to move on with their lives swiftly after the court proceedings conclude.
It also goes hand in hand with an update to the island’s sexual offences legislation currently being undertaken by Deputy Moore.
Pictured: Deputy Kristina Moore, the Home Affairs Minister, who brought forward the draft legislation.
She commented: “Jersey is internationally recognised for its effective and unique justice system, but the Island needs to keep fully up to date with developments in criminal justice over the past decades in order to support the ability of our judges to manage the detail of court process and our approach to new technology.
“I would like to express my appreciation for the assistance and support of legal practitioners in Jersey, both within and outside government. “The legal profession has been fully engaged in this process and has proved to be a dynamic and forward-looking driver of change.”
States Members will vote on the laws on 16 January 2018.
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