Protection against Cross-Examination by the Accused in Sexual Offence Trials

The recently published Heads of the Criminal Law (Sexual Offences) Bill 2014 finally shed some limited and long-overdue light on an aspect of sexual offence trials which has, for the most part, been overlooked in this jurisdiction. Until recently, personal cross-examination by the defendant in rape and sexual offence trials remained a topic in need of attention in Ireland. While other aspects of the rape trial have attracted widespread scrutiny and, as a result, have been the subject of various reform attempts, personal cross-examination has remained neglected by the Irish legislature. The neglect of this issue is surprising, particularly in light of the fact that many other common law jurisdictions, including England and Wales,1 New Zealand2 and various states in Australia3 have already tackled this issue through the introduction of a statutory prohibition on such cross-examination. However, to date there is no equivalent statutory prohibition in Ireland. The General Scheme of the Criminal Law (Sexual Offences) Bill 2014 (the “2014 Bill”), if enacted in its current form, attempts to rectify this statutory deficit. Unfortunately, as will be discussed in this article, while the 2014 Bill represents a step in the right direction, it does not go far enough. Thus, from an international perspective Ireland still lags significantly behind its fellow common law jurisdictions which have already taken positive steps to ensure that personal cross-examination by the accused in sexual offence trials is prohibited. This article presents a comprehensive examination of personal cross-examination by the defendant in rape and sexual offence trials. It will begin by addressing the cross-examination process in sexual offence trials generally and the difficulties presented by this process, even when conducted by a professional lawyer. Having done this, the various issues and problems which arise where a defendant dispenses with his legal representative in order to represent himself will be considered. The right to cross-examination and the right to self-representation will then be addressed, along with the potential for placing legitimate restrictions on these rights. Before concluding, the situation in this jurisdiction will be examined, including a consideration of the relevant case law, the various calls for reform and the recent developments which arose with the publication of the Heads of the 2014 Bill