In defence of defence barristers

There is only one news story in the UK right now, and that is Russell Brand being convicted of one offence of rape and three of sexual assault. Yesterday, he was sentenced to ten and half years in prison. He will serve about two thirds of that sentence.

This is the charge sheet:

Brand was found guilty of sexually assaulting a woman whose breasts he grabbed at a bar in London in 2004

He was also guilty of sexually assaulting a woman at the Choice FM studios in London in either 2004 or 2005, when he grabbed her face and kissed her before touching her breasts and bottom

Brand was guilty of anally raping a woman at his then-home in London in 2009 after meeting her at a comedy show in Hammersmith. She had willingly gone to his home and consented to vaginal sex with a condom. Brand then removed the condom and anally raped her.

He was also guilty of a sexual assault charge while working on a Channel 4 project in 2009, when he laid his head into the groin area of a woman working with him without her consent

Brand, was cleared of an allegation that he raped a woman at a hotel in Bournemouth in 1999, during the Labour Party conference

He was found not guilty of orally raping a woman in a toilet at a bar in London - the same woman he was found guilty of sexually assaulting when he grabbed her breasts

He was also found not guilty of attempted indecent assault - he was accused of grabbing a woman’s arm and pulling her towards a toilet in 2001.

Unusually, his defence barrister Mr Ian Winter KC had to refer himself to the Bar Standards Board because he had a go at a journalist outside court, something counsel should not do.

Brand - the darling of the left

Brand was feted by the BBC and political establishment for years. He was used to push all the fashionable leftwing causes at the time. He not only appeared on entertainment shows such as Graham Norton and the Late Late Show in the US and the Late Late show in Ireland, but he was platformed on serious political programmes.

Brand appeared on Question Time at least twice, Newsnight at least twice and he gave evidence to a House of Commons select committee. I’m not going to do one of those pieces saying how his leftism was used as a cover for his predatory behaviour. They were written over the weekend by Matthew Syed, Janice Turner and today Libby Purves.

It is also notable, that this was said in sentencing. “Woman 6, who Brand sexually assaulted while recording a Channel 4 project in 2009, has said the incident was “brushed under the carpet” by senior management after she tried to report it.” You know how Channel 4 bore us all day long about the feminism? That’s how they really treat women.

Post-conviction the politicians are making hay

Post-conviction, the politicians including the Prime Minister are crawling over one another to say just how tough they will make “the system” for anyone accused of rape. The very same people who ushered Brand into leftwing Sainthood, are now going to tell us what changes they’d like to make to the criminal justice system, for the sake of the victims.

PM Andy Burnham said on Saturday, Rape victims should not be left “feeling like they are on trial.” In the Times, “Andy Burnham has said as there are calls to reform how sexual offence trials are conducted after Russell Brand’s conviction.

The prime minister has said he will “look closely” at concerns raised by Sir Mark Rowley, the Metropolitan Police commissioner, who has backed calls for a change in the law to ensure juries are warned about “rape myths.”

Sir Mark Rowley, the Metropolitan Police commissioner, had taken issue with how Brand’s defence lawyer put his case in closing and said it “came close to victim blaming.”

Rowley told BBC Radio 4’s Today programme on Friday that some of what was heard in Brand’s trial was “getting very close to victim blaming.” He continued, “It shouldn’t be possible for inaccurate statements to be made to a jury to suggest that because a rape victim didn’t behave in one way, that somehow that undermines their case, when the evidence is very clear, we’re all very different [in] psychological and personal make-up, and in the most extraordinary horrific moments, of course, people react very differently.”

During Brand’s trial, his barrister, Ian Winter KC, told the court that none of the complainants in the case had “resisted or screamed or even tried to leave.”

On Monday, Burnham was still at it, “The bravery of the victims in the Russell Brand case will “change the system”, Andy Burnham has said. The prime minister promised to be “relentless in making whatever improvements we can” to provide more support for victims.

Speaking at a hospital in Hertfordshire Burnham said: “I’ll be honest and say I don’t think you ever can do enough to get the right support in place for victims to give them the confidence to come forward, because we know that still isn’t there in the way that it should be. But I have already taken a decision to make sure there are rape and serious sexual offence teams in every police force by the end of next year.”

On X, the Victims’ Commissioner was calling for a crackdown on the perpetuation of rape myths during sexual assault trials. Jess Phillips MP was on the telly asking for tougher sentences.

The Telegraph, then took it upon itself to make a news story about criminal barristers on X not taking issue to the victim’s commissioner proposal to have more judicial directions on how a rape victim might act after an attack. The Telegraph is really turning into a paper of questionable stories.

You get the picture. It is a feeding frenzy.

The basics of the criminal justice system

Let’s start with some basics. The accusation of rape is a very serious one. It is an indictable only offence, it can only be tried by a jury. Anyone accused of rape is entitled to the presumption of innocence, a full trial on the evidence, and only to be convicted of the offence after the jury are sure beyond reasonable doubt of the Crown’s case.

Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt subject to… the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner… the prosecution has not made out the case and the prisoner is entitled to an acquittal.

No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

Woolmington v DPP, Viscount Sankey.

Rules around the offence of rape and how the evidence is presented have changed immensely in the last twenty years. Minors can give their evidence pre-recorded on tape and all complainants can give evidence behind a screen, some I believe can do it over video link.

On the issue of judicial directions, the jury already receives many directions from the trial judge. Some them cover the issue of “rape myths,” such that not all victims protest etc. If the relevant authorities want to make these judicial directions more consistent and improve clarity, I doubt many will oppose it.

Defence counsel - not there to be popular

All defendants are entitled to a robust defence and in the case of rape that can include vigorous cross-examination by defence counsel. Giving evidence in court is stressful and can be traumatic, it would be ridiculous to pretend otherwise. This isn’t Happy Feet. If you make an allegation that could result in a defendant doing serious jail time, expect to be questioned thoroughly.

I certainly do not want to see the Prime Minister, the Metropolitan Police commissioner, Jess Phillips MP (who voted against a public inquiry into grooming gangs) or the Victims Commissioner dictating to defence lawyers how they can conduct their case, when counsel are already confined by ethical rules and rules of evidence on how they may run their case. Who the heck do they think they are?

But because this concerns the offence of rape we are a supposed to just nod along and agree with every proposal to pops into the noggins of politicians. I don’t think so. Also, the jury – quite literally – is out on how best to cross-examine complainants in rape cases. It certainly is not the case that lawyers always cross-examine the witness/victim aggressively. Most juries do not take kindly to that sort of thing. It did not work for Brand who was convicted, after all.

If the feminists, Metropolitan Police Commissioner, and politicians who seek political advantage had their way, they would barely bother with a trial at all.

People seem to be surprised that Mr Winter KC had the temerity to do any cross-examining at all on behalf of Russell Brand. I mean, how very dare he? One commentator on X said, “Ian Winter, Brand’s defence barrister’s reputation will surely be in the gutter after this trial” for arguing a perfectly reasonable point on the question of victim’s vulnerability in mitigation. This is a disgusting attack on the right of a convicted defendant to have proper legal representation at sentence.

The English (and Irish) criminal justice system is adversarial – so expect some adverse questions.

A man’s reputation and liberty is on the line.