Much has already been written about Russell Brand’s criminal trial and the issues raised in cases of sexual violence, and I’ll confess that I have only had time to dip in and out of the press reporting due to my own such caseload.
What has been impossible to miss, however, is the close scrutiny of the conduct of the case by Brand’s leading counsel, Ian Winter KC, with seeming justification. With the omnipresent neon sign behind me flashing “I was not in court and do not know the full context”, quotes attributed to Mr Winter – who holds himself out as specialising in fraud and financial crime – have been criticised by commentators and campaigners, and certainly jarred for me, a lowly junior barrister who specialises in the prosecution and defence of rape and serious sexual offending (RASSO).
Snippets reported from the defence closing speech would, if accurate, appear to fly in the face of the standard legal directions on stereotypes and assumptions that are handed down to juries in all cases involving allegations of sexual violence.
For example:
As jurors are told by the judge in these cases, the reality is
there is no typical rape, typical rapist or typical person that is raped. Rape can take place in almost any circumstance. It can happen between all different kinds of people, quite often when the people involved are known to each other or may be related. We also know that there is no typical response to rape. People can react in many different ways to being raped. These reactions may not be what you would expect or what you think you would do in the same situation.
In a similar vein, this reported comment…
…leans heavily on the same stereotypes, and is divorced from reality. Because having prosecuted and defended many, many serial abusers, I can confirm that most if not all of them consider their behaviour to be entirely normal. They don’t take extensive steps to cover their tracks; they often don’t explicitly threaten their victims not to tell; they don’t sneak around with a perennial fear of being caught. They offend in plain sight, and act normally in the aftermath because for them the behaviour is normal. The power they impliedly wield insulates them. They don’t worry about whether consent has or has not been given, because it is simply not important to them.
I confess that my eyebrows hit the roof when I read this report of the speech…
…because – again, quoting from the direction given to juries, set out in the Crown Court Compendium…
It is important for you to know that just because the defendant did not use or threaten to use any force on the complainant, and the complainant did nothing to prevent D from having sexual intercourse and was not injured, this does not mean that she consented to what took place or that what she said happened cannot be true.
Experience has shown that different people can respond to unwanted sexual activity in different ways. Some may protest and physically resist throughout the event. But others may be unable to protest or physically resist. This may be out of fear or because they are not a very forceful person.
In law there is a difference between consent and submission. A person consents if they agree to something when they are capable of making a choice about it and are free to do so. Consent can be given enthusiastically or with reluctance, but it is still consent. But when a person gives in to something against their free will, that is not consent but submission. They may submit due to threats, out of fear or by persistent psychological coercion. In those situations, they do not have free choice and this does not amount to consent freely given.
If a person decides not to struggle, feels unable to do so or gives up struggling, that is not the same thing as consent. A person can in some circumstances simply let the sexual activity take place because they feel they cannot act to stop it or because that is the only way they see the incident ending. Such actions or inactions are not an agreement by choice.
This reported comment appearing to suggest that “ordinary” victims of sexual violence immediately make a formal report…
…is at odds with reality, and, again, juries are directed in opposing terms:
When you consider why this allegation was not made earlier, you must not assume that because it was delayed it is untrue. The fact that a complaint is made late does not make the allegation untrue. And a complaint is not necessarily true just because it was made immediately.
The defence say that because the complaint was not made at the time this means the complainant is not telling the truth and that she has made up the story. This was suggested to her in evidence.
To decide this point, you should look at all the circumstances. This includes the reason she gave for not complaining at the time. Different people react to situations in different ways. Some people may tell someone about it straight away. But others may not feel able to do so. This can be out of shame, shock, confusion or fear of getting into trouble, not being believed, or causing problems for other people. It is your job to consider whether or not any of those things affected her decision not to complain at that time and whether or not that impacts upon her reliability as a witness.
I am explaining these points so that you will think about them in your deliberations. I am not expressing any opinion. It is for you to decide whether or not the evidence is true.
Again, there may have been something lost in reporting; a nuance or a context that made the defence comments explicable on the particular facts of the case. But as a general rule – Rule 1 of RASSO Club, I’d venture – any sentence beginning with the words “Rapists don’t…” or “Victims ordinarily do” is to be avoided, as it sounds awfully like parroting the very type of generalised assumption that juries are explicitly told to avoid.
The only behaviour common to rapists is that they rape, and for my part, I cannot recall ever seeing an advocate in a RASSO case attempting to broaden it beyond that. Rape happens in almost every context between every “type” of person, and once you are advancing an argument that appears to suggest otherwise, you are not only defying the judge’s legal directions, but risking propagating a stereotype that is not merely outdated and untrue and harmful to public understanding, but as matter of basic trial strategy is not going to assist your client’s case in the eyes of the jury.
I repeat – there may be a context or a purpose that is missing or unclear from the reporting, and if so, I am more than happy to share that. I just can’t quite see it for myself.
What I have been able to judge for myself however is focus on one particular element of the sentencing exercise which has come in for similar criticism, and while a narrow issue, I think it is worth saying something about, as it illustrates how badly the law does at making itself comprehensible to the public.
In the course of his mitigation, Mr Winter made the submission that one of Brand’s victims was “not particularly vulnerable”. Cue headlines such as this:
How on earth, the public will justifiably ask, could it possibly be said, with such casual flippancy, that a victim of a sexual assault is “not particularly vulnerable”? How can such a dismissive, callous remark possibly assist a defendant? What sort of judge would even tolerate that submission? Does this not tell us everything we need to know about the views and attitudes of the advocate speaking these words?
The answer, less excitingly, is found in the way that judges and barristers are required, by law, to approach sentencing hearings. Judges have a legal duty to follow Sentencing Guidelines, published by the Sentencing Council, which aim to offer consistency in sentencing by drawing up categories, which carry starting points and ranges for sentences for offences based on an assessment of the harm caused and the culpability of the offender. Part of this exercise requires the court, when categorising the level of harm, to consider, in cases of sexual offending, whether a victim is “particularly vulnerable due to personal circumstances”:
There is plainly vulnerability inherent in any case of sexual violence; however the guideline calls for a distinction between, to put it crassly, “ordinary” vulnerability and “enhanced” or “particular” vulnerability. The rationale is that for “particularly vulnerable” victims – which might include youth, disability, mental ill health, the fact that a victim was asleep, the fact that a victim was drunk or drugged, the fact that the victim was isolated – the harm caused is likely to be even higher. There is no exhaustive list of what constitutes “particularly vulnerable”, and in many sentence hearings there is legal argument as to whether it applies.
So it was in Brand’s case. As set out in the judge’s sentencing remarks, the prosecution raised “particular vulnerability” as an issue, submitting that two of the victims met that definition. The defence were therefore required to engage with the argument, and what has not been reported as widely is that the judge agreed with the defence that these two victims were not “particularly vulnerable” as the courts define the concept:
So, on this narrow point, it appears to have been an entirely proper submission for Mr Winter to make, and a successful one.
There were other aspects to the plea in mitigation which I do not have time to explore, and which do not at first glance appear to have such an obvious explanation, and this post should certainly not be read as a defence of the strategy, approach or conduct of Brand’s legal team. But there is a point to be taken here. Two, in fact.
The first is the quality of the press reporting, some of which leapt to construe the least favourable narrative of the “particularly vulnerable” submission, eager to feed the clickbaity caricature of a reckless, victim-hating defence brief, without doing the most basic research. Asking any criminal lawyer about “particular vulnerability” would have given the answer, in the same way that uncritically amplifying the clamour by campaigners for jurors to be given warnings about myths and stereotypes, when juries already receive precisely those warnings, could have been avoided by a spot of due diligence. Standards in journalism matter every bit as much as standards in advocacy.
But more importantly, this is a lesson to the Sentencing Council, and the wider legal system, about the language which we quickly adopt as normal in our daily work lives, but which to the public risks alienating, confusing, misleading or offending. “Particularly vulnerable” is a criterion which appears in a number of Sentencing Guidelines as an indicator of greater harm, and has been misunderstood and misreported before – as I blogged way back in 2017. Amending this to “additionally vulnerable” or “a level of vulnerability beyond that which is inherent in the offence” or some other wording that is not apt to appear to trivialise serious offending when spoken by counsel or judges, is the type of small but important step the system could take to make itself better understood.
I fully recognise that this is not the most important feature of this case, nor the biggest takeaway for the justice system or the legal profession. It may well be the smallest and least important. Far greater a concern for the legal profession is likely to be how the reported conduct of the defence case impacts upon public trust in the system, and in us as advocates, and the wording of a phrase in a guideline may, in the context of all of this, not be considered worthy even of comment.
But I’ll make that comment. Because although small, it is emblematic of a wider, chronic problem we have of making our criminal courts comprehensible to the public they serve.
We cannot expect the public to have faith in a system that continues to do such a poor job in making itself understood.