Two Setbacks for Social Justice Activists in the Legal Sphere

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Cardinal George Pell is escorted into the Supreme Court of Victoria in Melbourne on June 6, 2019. - Pell

The ongoing Review of the prosecution of sexual offences by the Dept of Justice must be seen in the context of widespread changes in legal procedures which have recently occurred or are being pursued across the Western world. They are occurring at the behest of critical legal theory a doctrine based on feminist, race and postcolonial concepts. In the Irish case the Review was demanded by the Rape Crisis Network of Ireland, RCNI, which convened a report which called for more “radical solutions” than trial-based procedures.

We have already covered in a previous article some aspects of critical legal theory. Here we want to dwell on just two very recent manifestations: the attempt by the Law Society of Ontario to introduce a Statement of Principles which all practitioners were required to sign up to in order to obtain a licence and the Cardinal Pell conviction and subsequent acquittal in Australia.  We put these events alongside the current demand to radically change procedure in sexual offence trials to show that the outcome in both instances has lessons for opponents and gives hope that these insidious processes can be stopped in their tracks.

The Law Society of Ontario

The Law Society of Ontario passed the Statement of Principles or SOP resolution in 2016. The society had in 2017 started compelling lawyers and paralegals to state their adherence to the dogma of substantive equality, diversity and inclusion in order to be in compliance with requirements for their licence. It is a salutary lesson to follow the history of what unfolded. A first attempt to block the move failed. A small group of lawyers set up a website called StopSOP to encourage lawyers to resist by refusing to adopt the sort of declaration the law society was trying to compel. Instead, 98 per cent complied — even though the society had said there would be no suspensions imposed the first year on those who refused. Still, any fear of losing one’s livelihood is a powerful deterrent. A more systematic campaign followed to bring together candidates for the Law Society elections in 2019 who if they could obtain a majority would vote down the resolution. This campaign was successful but only in the face of bitter resistance and intimidation.

Those of us publicly affiliated with StopSOP were called bigots, racists and Nazis

A fierce social media campaign was  waged against them. As Bruce Pardy a well-known academic lawyer and outspoken defender of free speech has said:  Who in their right mind would be a StopSOP candidate? In today’s highly charged environment, running against equality/diversity/inclusion initiatives risks personal and professional grief. The politically correct who promote tolerance and diversity are highly intolerant of dissent and diverse points of view. Yet, 22 courageous lawyers and one paralegal stepped forward. We warned them of what they already knew: backlash from social-justice activists would be vicious. And it was. Those of us publicly affiliated with StopSOP were called bigots, racists and Nazis.

It takes considerable courage to hold steady in face of vicious abuse which is now seen to be standard practice in so many demands made by social justice activists.

The Cardinal Pell Trial

The RCNI document stated that in much of Australia, pre-recording of both examination in chief and cross-examination is now the norm for all alleged victims of sexual violence. Indeed, both took place in the Cardinal Pell trial and both are demands of the RCNI document. In Pell’s first trial which resulted in a hung jury, the complainant’s examination-in-chief was recorded before the trial, while the cross-examination was filmed outside court and streamed live to the jury. In the second trial these recordings were simply replayed. Neither the complainant’s examination by the prosecution nor his cross-examination by the defence has been made available to the public. The jury was denied a crucial element of due process, that of observing at first hand the demeanour of both witnesses and accused under cross examination.
We now know the miscarriage of justice which occurred as a result. It is also worth recalling the opening statements of the RCNI document where it refers to “outdated statutory provisions and rules of evidence, as well as accepted custom and practice” which “have not been adapted to any great extent to take account of the specific needs of individual vulnerable witnesses”.

The lack of any warning concerning reliance on uncorroborated evidence

It is also instructive to note another legislative change which had a significant effect on the trial. This was in relation to the reliance on uncorroborated evidence alone to secure a conviction. Up to 1980 in Australia, the presiding judge would warn the jury of the unreliability of such evidence. The reasons are that even honest complainants can be mistaken in their recollections, some complainants are dishonest, and others may be delusional. But this warning by the judge has been dispensed with since 1980.

Case goes before the Appeal Court and then the High Court of Australia

After the first conviction Pell’s lawyers brought the case to the Appeal Court of Victoria in June 2019. The question before the court was whether or not the jury’s verdict was reasonable based on the evidence available to them. By a majority of two to one, the judges ruled that it was.

Indeed, that judgment created the impression that the burden was on the defendant to prove his innocence rather than on the prosecution to prove his guilt. The majority repeatedly referred to the claims “not being impossible” and that the defence’s “fabrication hypothesis” had not been proved. Again, this accords with warnings that the shifting of the burden of proof lies beneath the demands being made in a number of jurisdictions especially in sexual assault cases.

That a Court of Criminal Appeal should confirm the original verdict is all the more astonishing given that on April 7 2020 the High Court of Australia threw out the previous judgments by unanimous decision of all seven judges, in the process giving a scathing denunciation of the quality of the evidence used to secure the conviction.

One Australian commentator is quite blunt about the lessons: Rights of accused persons have been gradually but significantly eroded over the last few decades in sex offence cases. And in this case in particular, the media’s influence was likely to affect the jury’s ability to reason objectively. Like the mobs who targeted Alfred Dreyfus, Pell’s detractors were never interested in the truth about his case. They had identified their quarry and would not rest until he was destroyed.

The Pell trial and aftermath should provide a salutary warning to lawmakers and the public regarding the facile claims made in the RCNI document on “outdated statutory provisions and rules of evidence, as well as accepted custom and practice”.