Lady Dorrian Review Governance Group: Specialist Sexual Offences Court Working Group Report

Part 10: defence statements – consideration and discussion of implementation of a review as recommended by the Lady Dorrian Review

The Group, as part of its Terms of Reference had been tasked with considering what, from its perspective, the key components and substance a review of defence statements under section 70A of the 1995 Act might take, noting the benefits and practical challenges associated with implementing such a review, possible solutions to those and making recommendations for progression in so far as possible. To facilitate that consideration the Group revisited the background to the introduction of the current provisions, and identified and explored a number of options. The Group was mindful that the need and form of a review was the subject of consultation.^[21]

From the outset all members supported the progression of a review and this is accordingly recommended.

Remit

It was accepted at the outset by members of the Group, that a review would primarily need to be a legislative one, which would require to take cognisance of practice and procedure and the views of the principal justice partner participants in the process. It was also accepted that there would be a need to consider the potential impact on and the need to ensure that any changes that a Review might recommend, were ECHR compliant, maintaining the accused's right to a fair trial.

Who

To facilitate focused discussion and collation of views by the Group four options, with their associated benefits and challenges were considered. The options being:

• A judicially led review by appointment in consultation with the head of the judiciary (Lord President).
• An independent review by a non-judicial member of the legal profession, by Government request/appointment.
• A designated time limited justice sector Review Group with membership drawn from key stakeholders, akin to the present group; and
• Other- an alternative or combination of aspects of the options.

It was agreed from the outset by members that recent and practical experience of and qualifications in law and in the use of defence statements were seen as essential requirements of the ultimate reviewer to be appointed. There was unanimous support amongst those who expressed a view within the Group for options a) or b) to be explored, with a majority ultimately supporting a) notwithstanding judicial capacity and resourcing concerns raised by members. Reviews led by judicial members were common, as evidenced by the appointment of Lord Coulsfield to the review which had been the pre-starter to the discussion and the ultimate legislative provisions put in place for defence statements. Such benefits were seen to have the benefits of independence and impartiality. Concerns were raised by some members of the use of members of the judiciary, given the limited pool from which the candidate could be drawn and their current utilisation in the extensive recovery programme, which had the potential to include recently retired senators. Members suggested that a potential solution could be to put arrangements in to allow a current senator to perhaps work 'part time' rather than fulltime on the Review, acknowledging that that would have knock on impact on the length of the review.

Scope

The Group considered the potential scope of the Review. It recognised that the Recommendation had made it clear that as a minimum consideration should be given to the current utility of defence provisions. For its discussion there were a number of areas for potential consideration that should also be included:

• The timing/deadlines for submission of defence statements/updated defence statements and the impact these have on preparation for trial and communication and experience of complainers.
• The importance of early case management by the judge.
• The terms of the equivalent legislative provisions in England and Wales.

All members of the Group who expressed a view agreed that a prescriptive list of issues should not restrict the Reviewee, rather the Reviewer who should have a broadly unlimited discretion to consider the issues believed pertinent to the Review as, it was anticipated, issues would become apparent as the Review progressed. The points raised above may be a useful starting point. Clearly defined Terms of Reference for the legislative review at the outset would assist in managing this and expectations and resourcing generally. Some members suggested that its terms could perhaps be agreed in consultation with interested parties.

Timescales for the Review

The Group discussed what time period, if any, should be set for the Review and if the Reviewer would have authority to seek an extension.

It was acknowledged that there was undoubtedly a fine balance to be reached between ensuring that a sufficiently wide scope and remit of work was available, against the practical ability to undertake the Review within a reasonable time. In its discussions the Group took cognisance of the fact that the Lady Dorrian Review had made clear that the review of defence statements should proceed irrespective of the implementation of any of the other recommendations made in the report. There was an impetus for it given its outcome was not solely intended to improve the case management powers of the new specialised court, but the current High Court both in the interim while other elements of the Review were progressed and in the future. An impetus which many members supported.

It was acknowledged that discussing and agreeing defined timescales may be challenging when the personnel, scope and workload of the Review have yet to be defined. There was also no 'typical' period of time within which a Review was completed, for a variety of reasons. It was acknowledged that providing a defined time limit or some other form of steer would, however, have the benefit in principle of providing certainty and progression of the matter. While some submitted that a defined period would potentially limit discretion and/or the extent of the exploration and investigation that can be undertaken, safeguards like providing the appointed reviewer the option to seek additional time if further investigations or an avenue required to be explored; or a requirement to provide an interim report within a specified period, with a further period of review to report on any/such outstanding matters were sufficient safeguards. An opposite position suggested was that the Reviewer have an unlimited discretion on the timescales to report.

It was agreed by the majority that a timescale for the Review to allow focus would be preferable, but that would require to be set with reference to the ultimate appointee and their commitments. Some members suggested that a period of between 9-12 months might be adequate for completion, with no requirement for extension.

Defence statements recommendations

The Working Group recommends:

• That progression of a review in to defence statements should remain a priority in accordance with the preference and stipulation of the Lady Dorrian Review.
• That the Reviewer should be derived from the legal profession, with a preference that they be drawn from the current or recently retired judiciary. The Reviewee should for the avoidance of doubt have extensive and recent experience of the High Court and defence statements.
• That the Reviewee should have unlimited/unfettered discretion on its terms of remit and reference which would require to be refined further.
• That there was a preference for the review of defence statements to be undertaken and completed as soon as practicable, taking cognisance of the need for appropriate time for consultation, exploration and discussion and the commitments of the ultimate reviewer. The Group's preference was for an outline time period to be agreed taking cognisance of the aforementioned. A 9-12 month period.