Amendment to the sexual offences legislation a concern
ONE must be very concerned by the very significant and dangerous amendment in respect of the sexual offences legislation sprung on the States by the Policy & Resources Committee last week and passed, apparently, with little debate or understanding. This amendment attempts to reverse the burden of proof in respect of consent in rape/sexual assault cases. Guernsey’s current government refers endlessly to ‘transparency’, so it is a little surprising that such a fundamental issue could have been proposed and approved, it would seem, by a rushed amendment with no prior notice or discussion.
The burden of proof has been the ‘golden thread’ of the English (and all legal systems that value individual liberty) for hundreds of years and should not, lightly, be cast aside. No defendant should, in principle, be prosecuted, convicted and imprisoned by the agents of any democratic state without due process in which the prosecution must prove its case beyond a reasonable doubt. It is difficult to see why Guernsey should be an exception to this. The arguments in favour of this clumsy amendment were not clear. Proving/disproving consent is difficult, agreed, but that is not sufficient. We are all against rape and sexual offences and, no doubt, we all regret Deputy St Pier’s experience of sexual abuse, but these are not good reasons to depart from basic principles.
It will be noted that among the worryingly few deputies who voted against this drastic change were two prominent advocates, deputies Ferbrache and Green. For good reason. We have seen what happens in a parallel (not identical) context where a plaintiff ‘must’ be believed without discussion. Remember ‘Nick’, the fantasist in England who trashed reputations with his claims, wrecked lives and eventually led to huge compensation claims against the police (ultimately the taxpayer, of course). We really do not want to repeat this sort of miscarriage of justice in Guernsey.
If the sexual offences legislation is enacted as proposed with this amendment included, the risk of an unjust conviction, to young people in particular, from the consequences of an alcohol-fuelled evening out in downtown St Peter Port will be drastically increased. This is serious. Such a conviction on record could ruin a young (or old) life forever.
The issue is not easy – more reflection is required.
Unfortunately, we seem to have further legislation in the pipeline (the anti-discrimination proposals), which are currently horribly misdrafted to the detriment of all concerned in terms of burden of proof, excessively broad definitions and burdens on business/defendants. Inevitably, this is lining up eye-watering costs, endless litigation and, ultimately, lost employment opportunities for all, in particular school leavers entering an already shrunken jobs market.
Business is already flat on its back as a result of the virus lockdown. The legislation must be carefully considered to take into account the major drafting concerns identified. Implementation should be undertaken in phases as Jersey has done, possibly starting with racial discrimination. We really must expect deputies to undertake a more thorough review of the laws they seek to pass and think through the consequences. They should not be terrorised by fear of a negative reaction on their Twitter accounts from noisy protest groups (whose volume tends to be inversely proportional to their powers of analytical thought, if I may say). ‘We must do something. This is something. So we must do it,’ is not the best approach.
JOHN DYKE
Address withheld.