Naomi Long
East Belfast · Alliance Party · Northern Ireland
“Underneath the Facebook posts to say that he had passed away, people speculated with such comments as, "Probably high on drugs", "Probably drunk", and, "Typical boy racer". There was all of that speculation. It was hurtful to the family, and it was inaccurate.”
“There are circumstances that we need to consider and be careful of. I was told, for example, that, when the issue of good character references at trial was being looked at in New South Wales — Committee members may wish to look at this for themselves — one of the groups that opposed their removal was representative of domestic abuse victi…”
“It sets out the strategic direction adopted by the Department and key partners to tackle those appalling crimes and protect vulnerable victims of exploitation.”
“The provision seeks to provide protection, via legal advice and representation for complainants, against the use of non-relevant personal material and evidence of previous sexual history being used in the court process.”
“<BR /> <BR />On the wider issue of ensuring that a withdrawal of services never happens again, I think that most of us agree that, although everyone has the right to take industrial action, no one has the right to derail and hold to ransom the entire justice system in that way.”
“Those measures will go some way towards helping to support complainants and enable them to have input into the decision-making process about what records containing their personal and sensitive information are required to be shared with the defence.”
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“Before we break for the summer recess, and as this is our last opportunity to be in the Chamber, I wish Members a pleasant, restful and restorative summer break in their constituencies, where, no doubt, they will be beavering away unseen, as always. Meanwhile, I look forward to meeting the Committee this week to discuss a few other issues that we want to clear up before recess. <BR /> <BR />With thanks to you, Mr Deputy Speaker, I commend the Bill to the House.”
“It was a useful and constructive discussion about what is in the Bill and also about why some things are not. When it comes to the Committee considering the Bill, that is important. I anticipate that the Committee will find the content of the Bill interesting. It is perhaps less dry than the Justice Bill that we debated at length over recent weeks, in that it is very much focused on individuals and their experience of the system, and I hope that they see value in the important matters that are included in the Bill. <BR /> <BR />I commend the Bill to the House for its approval at Second Stage and wish the Committee well in its task ahead.”
“Social media has none of that decorum. Whoever videos an accident or hears a name will put it online. Sometimes, it is not even the right name, and people open social media and read that their sister, brother or cousin has been killed, when they have not. There is real trauma involved there, so we need to look at that. My suggestion, for what it is worth at this stage and given the restricted time available, is that we work together to try to get Westminster to take forward such a provision. It does have validity and value, but the posting of videos online is the core issue rather than the taking of the videos. <BR /> <BR />I am encouraged by the support for the Bill that Members have shown today. In drawing my remarks to a close, I thank everyone who contributed to the debate.”
“That is one of the issues that is complicated. It is therefore my intention to write to colleagues in the Department for Science, Innovation and Technology to ask whether they might look at legislating for it. I know that they are looking at doing it in the South, and it would be good if we were to have a concerted and coordinated effort in that space across these islands to raise awareness of the harm that can be done but also to look at whether we can stop such footage being shared online by way of a salacious "I know something you don't know" approach that people take in the aftermath of accidents. For example, the police know when someone is killed in a car accident whom that person is but will not disclose the name until the family has had an opportunity to be informed and to inform immediate relatives.”
“<BR /> <BR />Some countries are looking at allowing footage to be recorded without the consent of individuals only if it is in the public interest, which would be to report it to the police, and it could be used only for that purpose or where it satirises, so people could video people such as us and make fun of us, as they do anyway. We would not want to interfere with their ability to laugh at us.”
“Correct, and that is where that cuts across our devolved responsibilities in the Department and telecommunications and social media, which are reserved matters. There is such a small amount of time left to include such a provision in the legislation, and there is also the pressure that the Committee would face to scrutinise it. In addition, the matter will probably fall more to my Department than it does to the Department of Finance, and we do not have the capacity to legislate for it in a timely way. There is also the complexity of its being not only about filming road traffic accidents. The use and abuse of footage gained for purposes other than evidential ones and without the consent of those in the footage is a much wider issue.”
“The Member makes exactly the point that I was about to come to. It is one thing to film an incident, be it a violent assault, the scene after a car accident or people's behaviour in and around that, for evidential purposes and then pass it to the police. To put it up on social media, however, can impede the police investigation and potentially undermine the opportunity for a conviction. The PSNI was clear about that following the recent assault on Mr Ogilvie, when it asked people not to share online content because of the potential risk of not obtaining a conviction but also because of the trauma that people exposed to that footage could suffer.”
“You are not there to make a movie. You are there to try to be a responsible bystander. By posting things online, you are posting things that will be there in perpetuity and which people will see forever".”
“Underneath the Facebook posts to say that he had passed away, people speculated with such comments as, "Probably high on drugs", "Probably drunk", and, "Typical boy racer". There was all of that speculation. It was hurtful to the family, and it was inaccurate. It was an accident that happened as a result of an inexperienced driver having a genuine accident. He lost his life, but, because of the online commentary, the family was caused untold stress. The campaign group's work is important in raising awareness of the impact of what people say and do online in such circumstances. What people post online and the commentary that they make online is hugely dangerous and damaging to people who have already suffered immeasurable loss. I appeal to people and say, "If you have a phone and see a critical incident, do not film it. Phone the police.”
“It can also cause a real problem for the people who want to intervene or those who want to work with the individual to try to resuscitate them, for example. We know from speaking to first responders that that is an issue. It is, therefore, a much wider issue than road traffic collisions. It is a much more detailed piece of work. <BR /> <BR />I have made suggestions, and Mr McGlone suggested that it would be helpful if I could outline some things. I met the group that is campaigning on the issue, and I spoke to Caoimhe's mother and the other mothers who have been affected by it. I will give you an example that was given to me. The son of one of the mothers who met me was killed in a fatal car accident. He was a young man of 17 — a newly qualified driver.”
“We would have to go to consultation, and it would be a long, drawn-out process, because it is novel. I had suggested that I would be willing to work with the Department for Infrastructure. However, on reflection, whilst the Department for Infrastructure has some vires around road traffic accidents, the picture is wider. If someone is killed or injured in a road traffic collision, for example, and that is videoed, that is grim, but people are injured in other ways in public — people who have epileptic seizures in public — and are filmed for fun. I have witnessed that; it is put online. There are also people who are subject to serious assault, and those videos are put online. It can cause real trauma and harm.”
“That is about legislation to prohibit the sharing of photos of road traffic collisions, and it arises from the fact that, increasingly, when serious incidents take place, people, without consideration for the victims or their families or the first responders — be they members of the public or the employed first responders — video it and place it on social media where it will be in perpetuity. In Caoimhe's case, her mother raced against Facebook in order to tell Caoimhe's brother that Caoimhe had been killed in a car accident. None of us would want to see any person find out that their sister had died in a fatal car accident by opening Facebook. It is obscene. We need to look at that. <BR /> <BR />I do not have the capacity in the Department to bring that forward.”
“I have asked them to look at that for potential legislation in the next mandate. However, if there is a simple fix that could be part of the Bill, which would make even some progress in this space, I will be willing to consider it. I have asked them to expedite consideration of that specific issue. If I do not bring forward an amendment, it will not be because I do not care about the issue. Rather, it will be because I genuinely believe that, if we rush it and get the balance wrong, we could end up doing harm rather than good. We need to be balanced. <BR /> <BR />I turn now to Caoimhe's law, briefly — something that the eagle-eyed Member for North Belfast will note is not in the Bill but has been discussed as a future addition.”
“The answer is neither, but it is a hole in the Bill that was raised in the Chamber today. That is why I am explaining the balance that we are trying to strike in what we can and cannot do. We may be able to do something around good character references at sentencing for serious sexual offences, for example. We may be able to do that in a meaningful way in an amendment to the Bill. What I want to guard against is any attempt to go further into what can be done at trial and, indeed, with other offences post-conviction. There is a risk that we do not get the balance right, and considerable policy work would need to be done. I have already referred that to my officials as part of the sentencing review that, as you know, I launched at the same time as the Sentencing Bill.”
“If the offence is something such as rape, murder or some other serious offence, the judge will give such a reference only very slight weight. However, the point remains about the harm that is caused to the victim when someone is willing to stand up to try to get the perpetrator a lighter sentence or to paint them as a good character despite knowing that they have committed such a heinous offence. That is the harm that we are trying to avoid. <BR /> <BR />I have asked —.”
“<BR /> <BR />As I said earlier, it already says in case law that, for rape and very serious offences, the weight given to good character references and the extent to which they will influence sentencing are negligible. The phrase used is, I think, that they are of "almost no importance" in rape cases. The other side of that is that case law says that the weight given to a character reference should diminish with the seriousness of the offence. So, if it is a relatively trivial first offence, such as throwing a brick through a window, and a good character reference says that, although they should not have done it, some leniency should be shown because it was so out of character, that would carry a degree of weight.”
“That is the issue. It depends, I think, on the nature of the offence. I am referring to cases where there is a domestic abuse motivation. A clear-cut example is where somebody has been convicted of a serious sexual offence and people come forward and say, "I would never have believed it". How many of us know people, work with people and share space and time with people whom we would not believe were capable of such offences? If we thought that they were, we would want nothing to do with them. We have to balance all of that out. In such cases, there is a real risk of that person getting more lenient consideration due to a character reference.”
“That is why rushing to take decisions in that space without doing proper due diligence, particularly at the trial point, is a risk. There is a balance to be struck. However, when it comes to the sentencing, as a number of Members said in the debate, somebody has been found guilty of a serious offence. You know when you are giving the reference that you are doing so for somebody who has been found guilty. It is no longer an innocent person whom you are trying to defend. You are, essentially, saying that the person should get a lighter sentence because they happen to have been a nice person when you met them. I find that difficult to reconcile with what we know about predatory behaviour. However, there are already —.”
“There are circumstances that we need to consider and be careful of. I was told, for example, that, when the issue of good character references at trial was being looked at in New South Wales — Committee members may wish to look at this for themselves — one of the groups that opposed their removal was representative of domestic abuse victims. That group said that somebody of previously good standing in the community who had not been not violent or come to the attention of the police but had been subjected to 30 or 40 years of abuse in a domestic setting and had cracked under the pressure and committed a crime, by either attacking the attacker or taking the attacker's life, would not be able to bring good character references into the discussion to substantiate what they were saying. That is an angle that, I confess, I had not considered.”
“I accept what everyone has said about good character evidence. People know that I feel passionately about this. I simply do not accept that the way a person presents themselves and are accepted to be in public — the facade that they create in public — has any bearing on how they may conduct themselves in private. It is important, particularly in cases of sexual offences as well as of domestic and sexual abuse more generally, that we recognise that perpetrators and predators often groom not just a victim but a community to believe that they are an upstanding and trustworthy individual. That is often how they gain access to vulnerable people to abuse. I therefore have real qualms with good character references being used, whether that is during the trial or the sentencing.”
“We do not want to change disclosure processes at the investigatory stage, and it is important to note that we are not doing that: the police and the Public Prosecution Service are still expected to abide by the Criminal Procedure and Investigations Act 1996. Police and prosecutors have to seek all relevant material in the pursuit of reasonable lines of inquiry, whether that points to or away from the accused, record it in a disclosure management document and share it with the defence. That will not change. The Bill will simply allow for greater involvement and protection of complainants. The defendant's right to a fair trial and the court's central role in balancing those rights will stay the same. <BR /> <BR />I will move on to the area of good character evidence, which I know is hugely contested.”
“The provisions also ensure that, should a complainant want to object to the application or seek to limit what is being requested, they will have the right to make representations to the court, attend the hearing of the application and be legally represented. That would not automatically happen. <BR /> <BR />I believe that the judiciary is best placed to balance the rights of the complainant with those of the defendant throughout the trial process, including at pretrial application. Each application will still be considered by a judge, either on papers or at any other hearing where it is required, and they will be able to make representations to the judge. It will then be for the judge to make a ruling on what is appropriate.”
“<BR /> <BR />We want to improve transparency and ensure that all relevant evidence is made available and that the rights of both parties in the case are properly upheld and protected. The provisions do not place rights or restrictions on defendants to make an application for disclosure. As part of a fair trial process, they may seek information to support their defence, and it is right and proper that they are supported in doing that. It will allow the complainant to respond and to be given prior notice of the detail of the application so that they can get independent legal advice on where that sits with their article 8 rights.”
“They are telling the most intimate and private things to somebody with the point and purpose of trying to improve their mental health, and then that is being weaponised against them. That is a real violation of the normal privileges that one would expect in a therapeutic environment. There is, of course, a challenge whenever somebody discloses, in a counselling session, that what they have said is not the truth. There has to be some balance. That is why it is so important that there is a hearing on both sides of the evidence. We suggest that the complainant will be able to have their case heard in front of the judge at the same time as the defendant, and the judge will then be able to say where the balance should be struck to allow for a fair trial to take place. That is really important.”
“Members from across the House have spoken powerfully today about how traumatic it is to go through a sexual abuse trial, having to stand in a public forum and talk about the most intimate violations that a person can ever experience — it is a tragedy. There are now much more restrictions on who can be in the court and when and why and all the rest. That is a massive step forward from the rugby rape trial. The court is still a public forum, however, and it is still profoundly humiliating. I said to a victim, "But it is just the judge who will look at your counselling notes to see whether they are relevant". They said, "Yes, but even a judge reading my counselling notes is a humiliation". It is about the fact that they are being exposed.”
“It is often the defence, which may be concerned that there has been previous discourse that suggests their client is not guilty, and so will ask for text messages in the days or weeks following. The problem is that they may say, "Well, I want all their text messages for the past three years". Is that proportionate or fair? That is the distinction that judges will have to make. It allows the individual to say, "It might be reasonable for me to hand over text messages after the event, because those text messages might be relevant, but is it necessary for me to hand over text messages from before the event that might prejudice people against the kind of person I am or put me in a bad light?" <BR /> <BR />It is similar in the case of medical and counselling records.”
“However, we do not want to jeopardise the right of the defendant to a fair trial or prejudice their ability to have such information. For example, if there is an exchange of texts in which somebody admits that the encounter was consensual, it is right and proper that those are brought into evidence for consideration. <BR /> <BR />On disclosure —”
“Therefore, it is important that the individual victim is able to say that they believe that what is being requested is not relevant to the offence or their complaint and, furthermore, is intrusive. That provides the judges with an opportunity to consider that. We have been in touch with the office of the Lady Chief Justice about that matter. It is looking at it very carefully. <BR /> <BR />The aim of what we are doing is to limit the use of expansive and non-specific requests for deeply sensitive material and ensure that there are adequate notification requirements when third-party material about a complainant is sought by the defence. The best way to do that is to include it in Crown Court rules, so that the practice direction is clear about that.”
“<BR /> <BR />Sir John Gillen was very clear that the perceptions expressed to him were that defence counsel, in pursuing the defence of consent, routinely utilise rape myths, seek the disclosure of the complainant's medical and sexual history and question their motives in coming forward. He felt that that needed to be addressed. In order to address the concerns about the extent to which victims are able to exercise their voice in that area, it is right that they should have independent representation. As we all know, the Public Prosecution Service does what it says on the tin: it prosecutes cases on behalf of the public, not on behalf of the individual victim.”
“<BR /> <BR />As I said at the beginning, there is no way in our combative system for us to prevent, for example, counsel questioning the veracity of the claim made by the victim and suggesting that they may be lying, which is hugely traumatic for victims, but we cannot get around the fact that the claim has to be tested in court to the point where there is no reasonable doubt. However, when that testing extends beyond that and seeks all sorts of details about a complainant's history, medical conditions and so on, that is an intrusion that people often feel is a further violation. Unless it is pertinent to the defence, it should be resisted.”
“We removed those hearings in person in order to avoid victims of serious sexual assault and rape having to give evidence twice. It is another way in which the system precludes people who have a genuine case to make from coming forward. <BR /> <BR />Independent legal representation originates from recommendation 40 of the 2019 Gillen review of the law and procedures in serious sexual offences. Sir John met many victims who said they felt that they had no voice in proceedings and that they were put on trial. We have seen that, because the defendant is of course under no obligation to take the stand, but the witness — in such cases, the complainant — has no option but to do so, should the defendant decide to resist the charges. They are often subjected to extended scrutiny.”
“While there is guidance in place on such procedures at present, defence representatives may apply for all notes and records relating to the complainant, without specifying how they are relevant to the case or how they might assist in the defence of the accused. That can, in some cases, be a means of deterring a victim from seeking the therapeutic support that they need to aid their recovery. It could also deter a victim from pursuing legal action, in the same way that, previously, the ability of counsel, for example, to say that it would withhold its decision about whether to require a preliminary hearing in the courts around issues of the trial could often be used as a means of deterring people from taking cases.”
“The provision seeks to provide protection, via legal advice and representation for complainants, against the use of non-relevant personal material and evidence of previous sexual history being used in the court process. Ultimately, irrespective of somebody's sexual behaviour prior to an incident, the only thing that determines whether they have been raped and whether the accused will be convicted of rape is whether there is evidence that that event happened. What the person was wearing, their intentions when they left home that evening and how many previous sexual partners they have had are irrelevant. That is not the issue at stake; the issue is whether there was consent for the activity that took place on that occasion. <BR /> <BR />So often, that fishing exercise to put the victim or the complainant under scrutiny is dangerous.”
“That falls into line with the recommendations that Judge Marrinan shared in his 2019 report. <BR /> <BR />I turn to the issue of complainants in serious sexual offence cases and, in particular, the issue of disclosure. Disclosure is undoubtedly an important part of the justice system. It is important that people can seek disclosure, but we are aware from research and feedback on victims' experiences that complainants in serious sexual offence cases are more likely than any other victim of crime to be exposed to requests for access to their most private and personal information, whether that be medical or counselling records or other personal information such as their sexual history.”
“<BR /> <BR />We do not want to create any suggestion that the legislative assumption in clause 24, which is that witnesses to offences involving aggravation will be eligible for assistance when giving evidence, means that they will automatically be granted it by the court. There is a distinction between automatic eligibility, which the Bill will confer on victims where there is aggravation, and the court's automatic granting of assistance. It is right that it should be for the court to decide whether the application should be granted when it considers what impact that will have on the trial and on the evidence available to it as the case is prosecuted. As Members know, that entitlement already exists for a number of cadres of victims. We are simply adding a further group of victims who will be eligible.”
“Many victims may therefore be discouraged from giving evidence in cases where perpetrators, alleged or otherwise, choose to exercise their right to cross-examine their victims in person, so it is important that we address that as part of our overall provisions. Obviously, that can cause victims significant distress and can amount, on some occasions, to deliberately continuing the abuse to which someone has been subjected. The review also noted that better-supported mechanisms for victims, including greater use of special measures, should help to increase reporting of hate crime, which, we know, remains under-reported.”
“If the aggravator is not proven, a conviction for the basic offence is still available. That is an important part of the sentencing element of the hate crime Bill. Special measures will be for cases in which the PPS and the PSNI have reached the conclusion, based on the evidence available to them, not only that they should bring the charge for the offence but that they have sufficient evidence to prove beyond reasonable doubt that it was motivated by hostility and hatred. <BR /> <BR />It is important to understand the reason for special measures. Judge Marrinan's review found that hate crime often involves a campaign of abuse in which the perpetrator may be known to the victim, and that criminal harassment and intimidation of that victim can occur over a prolonged period.”
“Members will be aware of that from their scrutiny of the Sentencing Bill.”
“<BR /> <BR />For an offence to be classed as being aggravated by hostility and charged as such, thus allowing the special measures that are set out in the Victims and Witnesses of Crime Bill to be triggered, there has to be sufficient direct evidence that the offender was in fact motivated by hostility or that they had demonstrated hostility, rather than the victim simply perceiving that to be the case. That is a higher threshold than the one that the PSNI uses when looking at hate incidents. If the court is satisfied beyond reasonable doubt that an offence was aggravated by hostility, it must treat that as a factor that increases the seriousness of the offence, which enables a higher penalty to be imposed within the existing ranges.”
“That is now entirely in the hands of the Committee, but, as I said at the beginning, given the short time frame that we have, it would be helpful if Members could engage with the Department and me on any amendments that might be tabled so that we can ensure that there is as little scope as possible for any harm to be done to the Bill and can have a shared understanding of what we are trying to achieve. <BR /> <BR />It is important that I speak about a number of issues that were raised during the debate. We must distinguish between hate incidents and incidents that are taken forward as hate crimes. There is a distinction, particularly when it comes to people availing themselves of special measures. I want to provide clarification, because the issue was raised.”
“As the Bill moves through its various legislative stages, I hope that we can continue in that spirit in order to ensure that the legislation reaches the statute book as soon as possible and that we deliver improvements to victims and witnesses of crimes' experience of the criminal justice system. <BR /> <BR />Many Members said that they are supportive of the provisions in the Bill as introduced but that they may wish to see, for example, other matters dealt with in it or elements of it changed.”
“Thank you, Mr Speaker. As I mentioned at the beginning of the debate, progressing the Bill is a priority for me. I thank all Members who contributed to the debate for their constructive and positive engagement. In general, the engagement that we have had on the Justice Bill and, hopefully, that we will have on the Criminal Justice (Sentencing etc) Bill can be an example of how we can work together across party lines. Although we may not always agree, we can usually reach a point of disagreement in good temper at least. That has been really helpful throughout today's debate, as it allows us to have the kind of exchange of views that will improve the legislation, as well as the performance of the House on behalf of those who elect us. I therefore welcome the tone of the debate.”
“Therefore, the idea that someone who knows you in public has any idea of what it is like to live with you in private or of how you behave in private is of really questionable evidential value.”
“I thank the Member for giving way. The added complication, of course, is that, with domestic and, in particular, sexual offences, the offender will often have groomed an entire community, not just the individual victim, to believe that they are above reproach, would not have conducted themselves in such a way and would be incapable of such an attack. Therefore, the value that you can attach to a character reference, even in a trial situation, is rather limited because it is not as though someone is going around the community advertising that they are a paedophile or rapist. You will not know that; they will keep that concealed. They will not be public about being involved in domestic abuse or violence. The whole purpose of how they operate is to create a facade of trust and confidence and then to abuse people behind it.”
“If we were do anything around good character references during trial, that would require a much more considered approach through engagement with the sector to ensure that the balance of rights was properly struck. We have not ruled out doing that as an amendment, if we are able to find a simple solution.”
“Thank you. I feel the Member's pain about being in the Chamber too much today. The issue that he raises is one that I raised in my opening remarks. I said that it is a complex area of law, because it weighs the rights of the defendant and the victim. By the way, good character references can be introduced as part of the trial or as part of the sentencing. We are looking at it based on the case law that is available to us. For example, there is case law that says that character references are virtually worthless in cases of rape, and there is other case law to say that, in serious offending, they should carry very little weight. We are looking at whether it is possible, at this stage, for us to do something as an amendment around good character references at sentencing.”
“I am content that what I am going to say does not impinge on anything live.”
“If the Member is responsible for most of the amendments that are tabled, will he be happy for me to also compare their thickness with that of the blue paper that is in front of us today?”
“The victim, however, actually does have a lot at stake if the disclosure is a fishing expedition and goes too wide. Their concerns being heard is one of the things that will help a judge to reach the right conclusions. From my point of view, this is about simply rebalancing the scales a bit compared with where we are at the moment so that the views of the accuser are taken into account when it comes to disclosure. Ultimately, however, the decision will still rest with the judiciary, which is the right place for it to rest.”
“The Member is always very generous with giving way. It is helpful, however, to answer the questions as we go, rather than to stockpile them for the end of the debate. <BR /> <BR />It will always be for the judge to decide the extent of disclosure. Providing the witness in a sexual assault case — or the victim, in cases that are finally proven — with a voice in that decision rebalances an existing imbalance. For example, where a judge would normally make the decision about what is required under disclosure, that application would be made by the defence. In some ways, the Public Prosecution Service has very little skin in the game when it comes to the extent of disclosure or to limiting the disclosure, other than in the time that it takes to go through it.”