Trial of Facts Review: Does the System Actually Work?

Sir John Gillen, the former senior judge leading a review of Northern Ireland’s legal framework on trial of the facts cases, has set out the operational questions at the heart of his work: whether the current mechanism actually functions as intended, whether victims are “being sidelined,” and whether the public is properly protected by the disposals available to judges.

The review, announced in September by Stormont’s justice and health ministers as a joint exercise, is expected to produce an interim report by February 2027. The final report is due in spring 2027.

At its center is a procedure that operates in place of a conventional criminal trial. A trial of the facts is open to prosecutors when a court determines a person is unfit to stand trial and criminal proceedings cannot proceed. It is used to determine whether the accused committed the acts alleged, but it cannot result in a conviction. If the court is not satisfied the acts were committed, the accused is acquitted. The mechanism is provided for in Article 49A of the Mental Health (Northern Ireland) Order 1986, and it is not used often, though a high-profile example came in the 2019 trial of former IRA leader Ivor Bell.

The review follows the case of Eleanor Donaldson, wife of convicted sex offender Jeffrey Donaldson, who faced a trial of the facts after being found unfit for a conventional trial on mental health grounds.

Sir John, who led a major review of sexual offence trials in 2019, told BBC Radio Ulster’s Good Morning Ulster that the legislation governing unfitness has not kept pace with practice. “The law at the moment has involved from 1836… We have to ask ourselves does that law require to be modernised?” he said. “Are we using the appropriate mechanisms in light of modern medical practice? Is the medical practice that we have at the minute a bit too narrow in its focus?”

Implementation gaps are also on his agenda. On defendants being ruled out of a criminal trial because of their mental health, he said “there are avenues that need to be explore more fully.” He pointed to unfinished work already on the statute book: “There was legislation in 2016 about that not fully implemented, so we do need to look at that. It’s going to be one of the matters at the fore in my review.” He added that a psychiatrist or medical practitioners would decide if somebody becomes fit.

Meanwhile, the Department of Justice said the review would examine a range of factors, including whether a conventional criminal trial should remain possible if an individual becomes fit to plead. It will also consider whether safeguarding measures, such as sex offender notification requirements, should apply following findings involving acts which would otherwise constitute serious sexual offences. Sir John said he will explore what happens when a defendant later “becomes fit” after being deemed unfit to stand trial.

He has already begun meeting groups and representatives of victims and survivors, and said there are “genuine concerns” about trial of the facts cases that he plans to examine. “I’m being asked to look at the existing system and to consider whether the balance between victims, defendants and the public is the appropriate one,” he said. One question he wants to answer is: “Are the concerns of victims being appropriately considered?” He wants to look into whether victims are “being sidelined” and whether the offence is “being fully tested.”

Whether outcomes match the gravity of what is alleged is another test he intends to apply. Sir John plans to review if “the outcome reflects the seriousness of the offence” in a trial of the facts case, and said one of his main concerns is whether the public is “properly protected in the wake of the disposals available to judges in these cases.”

Whether the 2016 legislation can be fully implemented, and whether the balance he describes can be struck before the final report lands in spring 2027, will be the measure of the review’s success.