Stormont to review trials of the facts after Eleanor Donaldson case

Stormont's justice and health ministers have launched a joint review of the legal framework on trials of the facts in the wake of the Donaldson trial.

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

The ministers will appoint an external reviewer with the review aiming to launch in late October and conclude by the end of February 2027.

Various politicians have expressed support for the review.

In a statement provided by the Department of Justice, a spokesperson said "the Ministers of Justice and Health are aware of the public concern and interest in the legal and procedural framework on trials of the facts in Northern Ireland".

"Having considered the matter further, the Ministers have decided to launch a joint review of the position.

"Departmental officials will be liaising to agree terms of reference and to identify an external reviewer."

A trial of the facts is an option that is open to prosecutors if a court determines that a person is unfit to stand trial and criminal proceedings cannot go ahead.

It takes the place of a criminal trial and is used to determine whether an accused committed the acts alleged.

It cannot result in a conviction, but if the court is not satisfied that the accused committed the acts alleged, then he/she will be acquitted.

The procedure is allowed for in legislation by Article 49A of the Mental Health (Northern Ireland) Order 1986.

The mechanism is not used often but one high-profile example was in the trial of former IRA leader Ivor Bell in 2019.

In some ways, it is similar to a normal criminal trial - the prosecution puts its evidence against the defendant before a judge and jury in a courtroom.

However, perhaps the key difference, is that the accused does not play a part in proceedings, and does not even need to be in court.

That was the case with Eleanor Donaldson, who was not present on any day of the four-week trial in which evidence was heard against her and her husband.

However, in a trial of the facts the accused will be represented by a legal team and their lawyers can question the witnesses, challenge the evidence and make legal submissions on their behalf.

Ian Turkington KC represented Eleanor Donaldson during her trial of the facts, cross-examining witnesses and issuing closing remarks on behalf of his client towards the end of the trial.

Then there is the major differences in what the outcome can be in a trial of the facts.

Instead of being asked to return a verdict of guilty or not guilty, the jury are asked to decide whether or not the accused committed the offence with which they were charged.

The focus is on what they are alleged to have physically done - not their state of mind at the time.

In a normal criminal trial, a jury would be invited to decide whether or not a defendant had the mental faculties required to be guilty of the offence as well.

The standard of proof remains the same - a jury must be sure beyond all reasonable doubt that the accused committed the acts alleged.

The accused cannot be convicted but they can be acquitted if the jury decide they didn't commit the acts alleged.

UUP leader Jon Burrows, who called for the review after writing to the ministers in July, described it as an "opportunity to restore" public confidence in the justice system.

"The test of this review is not whether it reports. It is whether the law changes and strikes the right balance.

"There is real and legitimate public concern about how trials of the facts operate in Northern Ireland.

"That concern has been building for some time, and the recent high-profile case brought it to a head."

He said he will be pressing for victims' groups and families to be consulted directly, and for a timetable that "allows recommendations to be acted on rather than handed over as unfinished business".

"Justice must mean more than a finding of fact."

Speaking to BBC Radio Ulster's Good Morning Ulster programme, solicitor Paul Dougan however described the current process as "quite robust".

He said there is a "relatively high bar" with regards to medical evidence that needs to be presented, requiring oral evidence from a doctor and a report from at least one further medical practitioner.

"With the involvement of medical practitioners and the interrogation of that process by a judge, at the moment it seems to me that the process is quite robust and a very high evidential threshold to be overcome," Dougan said.

"I would just caution people against jumping to conclusions based on a particularly high profile case that has brought these issues to the fore."

• Listen: What is a trial of the facts and why is this legal mechanism being reviewed?

However Independent unionist MLA Doug Beattie, who sits on the justice committee, said he believes that if a person is found to be mentally unfit their case should "stay on the books" in case they recover so they can be "re-tried or they can be tried properly".

"People do go through mental health crises but sometimes down the road – five years, ten years – they can recover," he said.

"The question to me is this – if somebody recovers from their mental health crisis which stopped them going before the courts, can they then go back before the courts?"

Sinn Féin MLA Emma Sheerin said it was "entirely appropriate" to review the trial of the facts process to "examine whether the current framework is suitable and appropriately balances the rights of the accused with the rights of victims".

"We must ensure that all lessons are learned and that victims and survivors can have the confidence to know that their abuser will face the full force of the law."