"Misunderstanding" at heart of sexual offences amendment debate

Friday 11 February 2022

A change to sexual offences legislation proposed to come into effect on 1 March is reasonable and would not make defendants guilty until proven innocent, according to an experienced Advocate and former Deputy.

The change to the law would shift the evidential burden of proof to the defendant in sexual offence cases.

Despite voting against the proposal when he was in the States in 2020, Advocate Chris Green told Express: “The new provision doesn’t seem unreasonable in principle - nor does it fly in the face of law.”

But Deputy Carl Meerveld is not convinced. He is fearful that the change could damage the presumption of innocence in court cases. He and Deputy John Dyke have submitted an amendment which asks the States indefinitely to delay the change when it is debated again next week.

Deputy Gavin St. Pier, who was the original proposer of the change in 2020, said the amendment submitted by Deputy Meerveld was based on a falsehood. He said the change would see the evidentiary burden of proof shift to the defendant in cases of sexual offences where the accuser was intoxicated through their own actions or otherwise.

Advocate Green said there has been a misunderstanding between an evidentiary and legal burden of proof. 

He said the legislative change now proposed was only a small step away from existing legislation and mirrors the evidentiary burden of proof in cases of alleged self-defence.

“The new legislation is not a million miles away from the current system. It would mean that the defendant in these cases would be asked if they are able to provide any evidence, no matter how small, that proved they had consent from their accuser," said Advocate Green.

"If they can provide this evidence, it would remain the responsibility of the prosecution to prove otherwise. The new provision is a slight rebalance of the evidentiary burden of proof, not the legal burden of proof.

“This is already the process in cases of assault where the defendant has cited self-defence. The defendant is asked if they have any evidence to support their claim.”

Pictured: Advocate Chris Green says new legislation would not impact many cases brought before the court.

Deputy Dyke, also a lawyer by profession, said that “there is no meaningful distinction” between a legal burden of proof and an evidential burden of proof.

“This, to my mind, seriously cuts into the presumption of innocence, which has been the golden thread of English law for centuries," said Deputy Dyke.

UK Home Office data shows that fewer than one in 60 rape cases recorded by police result in a suspect being charged.

Advocate Green acknowledged that the conviction rate in Guernsey needs to be improved.

“There is no doubt that conviction levels for rape in Guernsey are very low,’ said Advocate Green.

“There is nothing wrong with the government trying to implement any legislation which might help to improve the conviction rates.”

Pictured: Deputy John Dyke

Deputies Meerveld and Dyke are proposing a delay to the change taking effect after voicing concerns that adequate consultation has not been undertaken. 

“In the debate [in 2020] the Law Officers confirmed that it was unprecedented and had not been reviewed by the Bar,” said Deputy Dyke.

“Our amendment simply asks for a deferral for proper review. I am not arrogant enough to wish to substitute my own view. Whilst I am a lawyer, I have not practised criminal law. Hence we are proposing a review by those with experience.”

Advocate Green explained why he voted against the change when it was first debated by the States.

“When this was debated for the first time, I voted against it because there is no equivalent provision in English legislation and no existing case law. We would be in unchartered waters,” he said. 

Advocate Green echoed Deputy Dyke’s concerns but confirmed that the proposal is likely to have been approved as legally reasonable before reaching this stage of the legislative process.

“It is probably right that the new provision would have been approved as legally reasonable before being put forward," he said.

"In reality, this provision would likely have very little impact on cases of sexual offences. I completely understand the importance of trying to introduce legislation which would improve conviction rates for sexual offences, but this needs more consideration.”