COURT OBSERVATIONS - justiceisnow

Students who are studying law at University's across the UK who may become Criminal Barristers are observing trials following this model: https://www.victimsupportni.com/site/wp-content/uploads/2021/02/VSNI-Report_BearingWitness_Final.pdf

The above model was completed by 2020. Our observations are looking in 2023 to see how things are improving. Post each observation we share with the Resident Judge/Barristers involved. Every 6 months local stakeholders from Criminal Justice agencies in the area, are invited to a dissmentation day where the court observations and feedback from all involved is sharing. Law students who may go into to be Criminal Defence Barristers/Criminal Pyschology and Crimonlogy undertake the opprutnity as an observer to learn. Before this training is provided, a Defence Barrster is part of this to provide balance and further the learning circle. A video of this training will be available soon!

Recent Observation: August 2023 - Outcome Acquital for the Defendant

Judge highly praised: The Judge is amazing and did an impeccable job of explaining the process, clearly summarizing facts, and treating everyone with kindness. She is clearly aware of rape myths and addressed them. She acknowledged having her eye on the law while Defence counsel cross-examined the IP.

Recommended change: Perhaps I’m sensitive to this as a major difference between US courts (where I am licensed) and UK courts, but the barristers should never call the witness a liar! Or even suggest, ‘You’re not telling the truth at all, are you?’ This happened a lot in cross-examination.

What information does the judge give the jury about the nature of the case before it is opened? (Tick all that apply)	Charge in the case	X
	Defendants name	X
	Location of the crime	X
	Instruct the jury not to discuss the case or to go on the internet	X
	Judge excelled at providing clear instructions on the jury’s role, what consists of evidence, how to listen to that evidence, as well as an estimated structure for how the whole trial would proceed She explained that determining credibility of the evidence was the job of the jury, and determining how to apply the law was her job as the judge She explained that the ABE video was the victim’s evidence and should be treated as if she was giving that testimony in-person. Although it is a video, it may only be watched once, just as testimony in court is only given once.

Does the IP have a Witness Service or other formally appointed support person with them? (for example, Registered Intermediary)	Yes
	No	None that I could see, but the witness was also behind a screen. If someone was there with her, or out in the hall, it would not have been evident to those of us in the public gallery.
Are these formally appointed support persons sitting beside the witness whilst they give evidence?	Yes
	No	Unknown – see notes above
How do the formally appointed supporters interact with one another and with other court staff?	n/a

Are there any special measures in place for the complainant?	Yes	X
	No
If special measures are in place, what are they?	Screens around witness box	X
Please tick all relevant boxes:	Live link: witness giving evidence from another room via TV live link	no
	Pre-recorded evidence in chief	X
	(Achieving best evidence ABE interview)	X
	Closed court (no public gallery)	no
	Removal of wigs and gowns	no
	Registered Intermediary	no
Were you aware if an application for Special Measures was made on the day?	Yes
	No	X
How did you know an application for Special Measures was made on the day?	No discussion among the barristers and judge. All Special Measures were determined prior to jury selection and trial.

I Prosecution Opening

Did the prosecutor's opening statement set out the facts of the case?	Yes	X
	No
Was this clear, easily understood and concise?	Yes
Was this clear, easily understood and concise?	No	Difficult to follow because the rape was not explained chronologically; prosecutor told the full story of events at least 3x, with each retelling longer than the previous, including more details
Did it properly set out the burden and standard of proof?	Yes
Did it properly set out the burden and standard of proof?	No	X
Was there any mention of the IP's previous sexual history?	Yes
Was there any mention of the IP's previous sexual history?	No	X
If the IP's previous sexual history was mentioned, in what way was it made relevant to the argument?	n/a
Was there any mention of rape myths?	Yes
Was there any mention of rape myths?	No	X
If rape myths were mentioned, what was said? (Note rape myths you heard) Beliefs that blame the survivor Beliefs that cast doubt on allegations Beliefs that excuse the accused Beliefs that assume rape only occurs in certain social groups	None were mentioned by the Prosecution in his opening statement nor throughout the trial. The Judge was the only one to address rape myths throughout the trial.

Any other comments or observations:

After the prosecution’s opening, court is called to an end for the day. The facts of this case are fascinating, and the jury seems intrigued to learn more tomorrow.

I IP evidence in chief

ABE= Achieving best evidence

What date and time did evidence in chief begin?	Video was shown at the start of the day (1 Aug 2023) 10:16 am, lasted about 30 minutes. Following the video, the prosecution read through a text message exchange between the victim and defendant from a few days prior to the incident.
What methods did the Judge use to help put the IP at ease when they entered the witness box to give evidence?	n/a – ABE was a pre-recorded video from 22 Dec. 2018 taken around 15:50.
Was an ABE interview (pre-recorded with police) used?	Yes	X
	No
If an ABE interview was used, please record any difficulties there were with it:	The sound quality was a little irritating, but this could have been the result of both the poor quality of the police video recording equipment or the court’s mediocre sound system. The location of TV screens in the courtroom was not conducive to easy viewing by the jurors. The nearest screen was to the right on the jury box, mounted high above them, so jurors had to strain their necks to look up to the right. The other TV screen was on the far wall, so far away that any details or text on the screen were incapable of being seen or read.

If there was no ABE interview, did the prosecutor take the IP through their evidence in a way that helped them to be as clear and concise as possible?	Yes	n/a
	No	n/a
How long did the evidence in chief last?	30 minutes
Was the IP offered a break (during video)?	Yes
	No	X
Date and time the examination in chief ended (including breaks)	ABE video ended at approx. 10:46 am
Any other comments or observations:	The Prosecution asked a few questions of the IP after the morning break (starting around 11:46am), but turned it over to the Defence after only a few minutes

Was the IP asked about compensation?		NO
If the IP was asked about compensation, how was the question asked and what was the response?	n/a
What did you see and hear that made you think the IP was treated disrespectfully? For example: Persistent questioning Accused of lying or being a liar	Accusations that IP was flirting with the Defendant over text, and she was mature enough to know it. Accusations that on the night in question told him, ‘Fuck me,” kissed the Defendant with his wife there, and that she was lying about it now. Accusations that they had ‘rough, passionate, enthusiastic’ consensual sex in various positions after his wife left “Its all part of your pretense that you were so drunk that you didn’t remember. That’s all a lie.” “You know full well….and you’re lying about it now’ ‘This isn’t true at all, is it?’ ‘Is this really true? Is this your evidence?” After the Defence summarised text messages from the Defendant expressing how beautiful and sexy he thought she was (including a description of specific body parts he found to be ‘hot’), the Defence then showed the photo that the IP had taken of herself in bed that night and sent to the Defendant in response to his persistent requests over hours for a better picture than her WhatsApp profile pic. With this photo displayed, the Defence said: “We don’t need to know your age, but you’re a woman in your 40s, although you don’t look it at all,’ while raising her eyebrows to prove the point that she was a very attractive woman. (If Defence counsel was a man, this would have been very inappropriate, and I don’t consider it much better at all coming from an older female barrister. It was not flattery.).
Please identify any rape myths that were used. How were they expressed and used? Beliefs that blame the survivor Beliefs that cast doubt on allegations Beliefs that excuse the accused Beliefs that assume rape only occurs in certain social groups	--Belief that IP flirted back and requested sex multiple times (according to the Defendant) --Accusing the IP of lying about how drunk she was and faking her unconsciousness because she was a heavy drinker who binged regularly --Rough, consensual sex myth as excuse for her injuries --Defence accused IP of ‘jumping on the bandwagon' with her son by bringing charges against Defendant and lying now ‘because it was easier’ t avoid punishment by the Jehovah’s Witness community The IP yelled back ‘You think this is easier? To testify and go through this whole trial? This is HARDER. I’m here because I need to protect other women from him, so that this doesn’t happen again.”

I IP cross-examination by Defence Counsel

Date and time the cross-examination started	The 1^st Aug 2023, after the morning break, 11:46 am
What did you see and hear that made you think the IP was treated respectfully?	When the IP did come into court for cross-examination, the Judge assured the IP that her voice was nice and strong, and gave her permission to sit, if needed. The Judge also explained to the jury that it was ‘perfectly normal’ to have the screen up during her evidence, and that this used to be called ‘special measures,’ but there’s really nothing special about it.
If the IP's previous sexual history was mentioned, what was said about it?	Sexual history was not mentioned, but the Defence asked about her marital history (she is now married to her second husband), and how her adult son (a witness) is the child of a different father from either of her husbands

Did the defence make an application for No Case to Answer at this point and if so, on what grounds?

What is your personal opinion of the strength of the case at this point?

Very strong. IP is a credible witness. The ABE video was chilling. Her willingness to testify in court was brave, and her story corroborates the record. Also, the text messages between IP and the Defendant are particularly damning of him – its quite obvious that he wanted to have sex with her, and he would not stop pressuring her to give him a nude photo or meet up in the middle of the night. Her text replies were delayed, polite, but not interested.

Did the prosecutor intervene at any stage in the questioning? If so, how and what happened?	No
Did the judge intervene at any stage in the questioning? If so, what points did the judge make? Do you have any other comments?	Defence started a line of questioning about whether IP was flirting with the Defendant’s wife’s younger brother on the night of the incident. The Judge interrupted immediately after Defence’s question ‘I’m not suggesting anything wrong with this, but for context, was there some harmless flirting?’ The Judge called a break, and with the jury out of the room, asked the Defence where they were going with this line of questioning. The judge said she had an eye on Section 41/42 the whole time. They decided that questions about the brother were only appropriate as to her memory about him flirting with her or not, but nothing could be asked about her reciprocation or not.
Did the prosecutor re-examine the IP and if so, what issues did they cover or go over again with the IP?	Fifteen minutes of re-examination, solely about whether IP had any memory of talking to her son on the morning after
Was the IP offered a break?	Yes	Between 12:43-14:00pm for lunch then again between 14:45 and 15:00
	No
Date and time the IPs evidence ended	1^st Aug 2023, 15:19
How long did the IPs evidence last, including breaks?	Approximately two hours of testimony, spread out between 11:46 am and 15:19 pm
Any other comments or observations:	IP requested the break at 14:45 (after the most accusatory section of cross-examination). The Judge gladly gave it to her and suggested she go outside for cigarette or get a cup of tea. When the IP returned, the Judge apologized and said it was crass of her to assume that she was a smoker. ‘I hope it didn’t make you feel any more alienated,’ the Judge apologized. Also with IP out of the court, Judge suggested having someone for her to speak to about the case that night who was not her son Josh, who would testify tomorrow. Defence counsel suggested IP’s husband, and Judge declined, saying ‘Its uncertain how much she’s told him about this case and shouldn’t have to rely on him.”

I Other witnesses' evidence (for the prosecution)

Were any other witnesses called by the prosecution? If so, who were they?

IP’s son Josh Josh’s girlfriend at the time Toxicologist Dr. Fiona Perry Witness #2 was also recalled on the final day of trial after closing statements because Defence Counsel made refernce to a ‘crucial fact’ that this witness testified to, and the judge claimed that the Defence’s interpretation of her testimony was incorrect. Witness #2 clarified the ambiguity – and not in favour of the Defence – and then was gaslit by a frustrated Defence Counsel that she has to be mistaken because it didn’t fit Defence’s narrative.

How well was their evidence handled by the prosecutor?

The court had technological problems in the morning with getting the toxicologist set up to appear remotely with video and audio. The other witnesses took the stand first, and the toxicologist was moved to the afternoon. Prosecution’s questioning of the toxicologist was fairly technical and likely unclear for the average juror. The Prosecution asked her to give a range of BAC levels and sample behaviours for each one – this was by far the clearest and best use of her expertise.

Were they cross examined by the defence? If so, did the defence manage to throw doubt on their evidence in any way?

Yes, but not very effectively. Defence counsel began her cross-examination by asking to show a photo of the knife that the son grabbed before finding the IP and Defendant naked together under the blanket. It’s a small, pastel green kitchen knife, and the Defence’s argument is weak that he was a maniac and unreasonably threatening the Defendant. Defence accused the son of not acknowledging that his mother was an adult who could make her own decisions about sex. Defence asked accusing questions of the IP’s drinking habits, suggesting that she was an alcoholic. Defence judged the son’s decision to not call an ambulance as evidence that IP was not as unconscious as he claimed. There was no recognition that the son was traumatised in that moment and doing the best he could to make decisions that kept his mother safe. (‘you were not a child, you were 20 years old, a full adult and capable of knowing what to do…) Defence counsel also characterized the toxicologist’s work as ‘educated guessing’ with the help of science. She claimed that because we don’t know how IP personally eliminates alcohol as compared to the ‘average social drinker,’ we have to assume a level that is most favourable to the Defence’s case.

Was other evidence available? What was it and how well was it used?

Arrest report with Defendant’s own statement; Photographs of the IP’s bruising along her right hand and arm; Body maps and medical reports from a physician explaining where she felt pain and tenderness. Defence counsel attempted to discredit these injuries as normal for rough consensual sex. It was also pointed out that the IP took the photos herself a couple days later.

Please identify any rape myths that were used, how they were expressed and how they were used. Beliefs that blame the survivor Beliefs that cast doubt on allegations Beliefs that excuse the accused Beliefs that assume rape only occurs in certain social groups	Depiction of the defendant as a ‘family man’ of good moral character, still married to his (now pregnant) wife, OMITTED ith two kids and a baby due in October, and nothing on his criminal record before these charges Accusing IP of reasonable flirtation back and a level of reciprocation Blaming IP as an alcoholic and claiming that she was not unconscious during sex because she regularly drank to excess. Assumptions by Defendant that everyone had equal amounts to drink, and thus, everyone was equally affected by the alcohol. Because he and his wife were still conscious, so was IP in his mind Blamed the victim for taking off her own clothes and putting on a robe Blaming son for not acknowledging his mother’s agency to have sex with whomever she wants Blaming son for misinterpreting the sounds of his mother having enjoyable sex as sounds of struggle and protestation Blaming son for threatening Defendant with a knife when he found him hiding naked under a blanket, claimed that he was going to stab him
Was the defendant offered a break?	Yes	X
	No
Date and time the evidence in chief ended	11:42 am, at the morning break
How long did the evidence in chief last?	Approx 1 hour and 20 minutes
Any other comments or observations:	Defence counsel asked (before jury arrived) that no guard stand by the witness stand, as Defendant has been out on bail and this would serve to give a presumption of guilty or danger that wasn’t necessary

I Defendant's evidence

Did the defendant give evidence?	Yes	X
Did the defendant give evidence?	No

If yes:

What date and time did the evidence in chief begin?	3rd August 2023; 10:23am
What methods did the judge use to help put the defendant at ease when they entered the witness box to give evidence?	Asked him to take a deep breath, acknowledged that he was emotional, offered him water and the chance to sit. Told to take his time and take breaks as needed.
Did the defence take the defendant through their evidence in a way that helped them to be as clear and concise as possible?	Yes
	No

Did the defence intervene at any stage in the questioning and if so, what happened?	No
Did the judge intervene at any stage in the questioning and if so, what happened?	No
Did the defence re-examine the defendant and if so, what issues did they cover or go over again?	No
Was the defendant offered a break?	Yes
	No	X
What time did the cross-examination end?	15:20
How long did the cross-examination last, including breaks?	Approx.. 1 hour and 30 minutes Not including the break for lunch
Any other comments or observations:	Defendant is extremely self-deprecating, acknowledges that he was unfaithful to his wife, and embarrassed to testify about the explicit sexual details of his affair with her friend. He takes full responsible for ‘being an idiot,’ but he also tries to characterize himself as ‘just a bloke’ who let ‘the girls’ (not the women) plan the evening, bought white wine for them, didn’t choose the ‘girly chick-flick’ movie that was put on, and didn’t even know what Spanx were at all until this trial. In his text messages, and now in his testimony, he has no sense of when he is being persistent, forceful, demanding, and refusing to stop until his demands are somewhat met. He seems entitled to whatever the women in his life have to offer him. He seems extremely threatened by younger men (i.e. the IP’s adult son, but also his wife’s brother – who despite being approx. two decades younger than the IP, seems to think the brother wanted to sleep with her, and this was enough of a threat to him that he needed to get rid of this guy NOW, according to Defendant’s own texts to his wife). Defendant also seems to sleep a lot on sofas, whether at his own home or someone else’s. It makes me wonder what was going on in his life and marriage at that time that made it so difficult for him to sleep in his own bed like a reasonable adult.

I Defendant cross-examination

Date and time the cross-examination started	12:27pm until 13:00 Resumed after lunch from 14:20 to 15:20
What did you see and hear that made you think the defendant was treated respectfully?	Prosecution used an even tone of voice, never shouted or scolded the Defendant (unlike his Defense counsel did with other witnesses) Prosecution’s approach was to discuss the events reasonably with him and use logic to point out where Defendant’s story seemed far-fetched.
What did you see and hear that made you think the defendant was treated disrespectfully? For example: Persistent questioning Accused of lying or being a liar	Prosecution asserted that Defendant kept texting IP in order to ‘up the sexual ante,’ and ‘You REALLY needed to pop on over for a cup of tea and to have sex with her, did you?’ Prosecution claimed the Defendant believed that he ‘hit the sexual jackpot” with IP. Prosecution used the words ‘three-hour sex-a-thon’ to describe Defendant’s likely-untruthful and exaggerated testimony of events. ‘You lied to your wife to fulfill your sexual fantasy?” ‘Are you lying to us now to cover up for what you did?” ‘Are you inventing a narrative of feigning sleep? Is that your story to get yourself off?’ ‘You were filling your boots before you left.’ Persistent questioning about Defendant’s need to control, about being forceful, and about IP’s injuries and whether or not he caused them
Did the prosecutor intervene to challenge any rape myths and if so, what myths were challenged and what happened? Beliefs that blame the survivor Beliefs that cast doubt on allegations Beliefs that excuse the accused Beliefs that assume rape only occurs in certain social groups	N/A – The cross-examination is conducted by the prosecution

How well was their evidence handled by the defence?	n/a
Were they cross-examined by the prosecutor? If so, did the prosecutor manage to throw doubt on their evidence?	n/a
Was any other evidence available? If so, what was it and how was it used?	See previous sections about character statements

What is your personal opinion of the strength of the case at this point?

Very strong. Defendant’s claims that IP wanted to have sex with him are exaggerated and based on his own fantasies. Even the words that he claims to attribute to the IP (‘Fuck me,’ ‘I love you,’ etc.) seem like something he’s dreamed up from porn, or what he’s wants but was not receiving from his own wife. The Prosecution has pointed out that the Defendant is testifying to the IP saying certain words that he also used in his own statements and police report about different events, so he must be making them up.

I Other witnesses/evidence (for the defence)

Were any other witnesses called by the defence? If so, who were they?

No, but the Defence read three character statements (all from women) written about the Defendant. Two of these statements are written by women who hired him to photograph their weddings, both claiming he is a ‘hardworking, generous, family man’ or ‘affectionate father.’ The third statement is from an elderly woman in the OMITTED who has known him for almost 14 years and ‘the allegations do not fit with the man that I know.”

Were any rape myths used and if so, what were they and how were they used? Beliefs that blame the survivor Beliefs that cast doubt on allegations Beliefs that excuse the accused Beliefs that assume rape only occurs in certain social groups

Nothing in the character statements mentions IP Statements assume that a man of such strong character, generosity, family values, and helpfulness to others cannot possibly have raped a woman However, later on in the summing up, the Judge explained that good character is not a defence to the criminal charges.

I The summing up

	Set out the law about the burden and standard of proof	X
	Refer to the offences set out in each count spelling out what is in dispute	X
	Summarize the evidence of both the defence and the prosecution	X
	Explain the verdict and how the jury reach it	X
	Refer to the law about the defendant not giving evidence (if applicable)	n/a

Do you believe the summing up to be a fair representation of the case? Please explain why you reached your conclusions.	Yes. The judge began her ‘summing up’ of the facts on Monday 7 August 2023 and read from actual testimony said by each of the witnesses (and some questions from counsel) throughout the trial. The judge was chronological, methodical, and did not editorialize. Her quotes from witness testimony were accurate and just as I remembered from watching the trial myself. I don’t believe she missed any major facts or arguments from either side. She told the jury to not speculate as to her opinion of the case as she summed it up. She did a good job of not expressing opinion or showing bias in any direction.
Did the judge explain reasonable doubt?	Yes	X
	No
If so, please note what the judge said about reasonable doubt.	To decide a guilty verdict beyond reasonable doubt is to make ‘sure’ of it – there’s no legal magic to being sure. It’s the same as being sure of something whether inside or outside the courtroom.
What is your personal opinion of the strength of the case at this point?	Very strong, but I will also acknowledge my bias to believe the IP, knowing that ‘women cry rape’ is a myth. I worry that the jury will acquit the Defendant because of the Judge’s definition of ‘beyond reasonable doubt.” Nobody can really know for ‘sure’ without being present in the moment.

Did the prosecution or defence requisition the judge in their summing up? (i.e. request the judge to refer to something from the Bench Book in their summing up)

The jury

How long did the jury retire for?	1 hours and 47 minutes. (11:43am – 13:00pm, break for lunch, then again from 14:00-14:40ish) NOT GUILTY verdict on Count 1 (rape). Count 2 (attempted rape) was dismissed.
Did the jury raise any questions during deliberation? If so, what?	No, none that I was aware of

Delays

Were there any delays during the trial? If so, what was the reason for the delay and the length of the delay? (Please note all delays)

Previously mentioned delay in getting the toxicologist to appear remotely due to tech difficulties with the audio. This was resolved behind the scenes, and other witnesses went forward first in order to not delay the day. One juror was late on both Thursday and Friday (3^rd and 4^th August), but this only caused a delay of 10-20 minutes. One juror fell asleep during Defence’s closing statement, and she stopped to ask the judge to wake her up. One juror fell ill on Friday 4^th August and went to the A&E over lunch after closing statements. The rest of the afternoon was cancelled so that the jurors could resume altogether on Monday. One juror was seen talking to the officer on this case and learned that he worked at the same police station as her adult son. The judge called in the juror to ask that she had not discussed this matter at all with her son. She acknowledged that she had followed instructions, did not talk with him, and he was currently on holiday.

How often was the jury asked to leave for legal arguments?	Legal arguments were briefly discussed before and after the jury’s presence in the room, so this did not detract time from the overall flow of the trial.
General impressions

What is your overall impression regarding this case?	Fascinating facts – it truly plays out like a Netflix mini-series drama. The judge and barristers are quite experienced and esteemed. I can tell that the Defendant paid a lot of money for his representation. The barristers are friendly and collegial with one another, despite the adversarial nature of trial. I can’t help but feel disappointed that the jury did not return a guilty verdict when I was very certain that all the testimony and evidence clearly pointed to this being rape, and the Defendant was lying under oath. I wonder what took place during the jury’s deliberations, but because they cannot share those details even after the trial is over, we can never know. While rape myths were properly address by the judge, it still seemed to me like the jury may have allowed their own biases about sex, gender, etc. influence their decision. When a conflict is portrayed as he said/she said, isn’t it always the man whose side of the story wins? Was the jury more willing to give the benefit of the doubt to a wealthy, tall, attractive, white man, especially when his visibly pregnant wife is waiting for him in the courtroom? Was the jury unwilling to believe the IP and discredited her testimony because she was a single mother, a binge drinker, overly-beautiful woman for her mid-40s, and a formerly-disfellowshipped OMITTED whose adult son was also OMITTED at the time of the rape? I can’t help but think the Defendant is a stereotypical ‘insider’ while the IP was painted as the ‘outsider’ and villain.
Did you observe anything particularly positive in the case and if so, what?	The Judge is amazing and did an impeccable job of explaining the process, clearly summarizing facts, and treating everyone with kindness. She is clearly aware of rape myths and addressed them. She acknowledged having her eye on the law while Defence counsel cross-examined the IP.
Do you have any suggestions for changes to include?	Perhaps I’m sensitive to this as a major difference between US courts (where I am licensed) and UK courts, but the barristers should never call the witness a liar! Or even suggest, ‘You’re not telling the truth at all, are you?’ This happened a lot in cross-examination.

2020 OBSERVATIONS FROM THE REPORT:

Myth: If they did not scream, fight or get injured, it was not rape

During cross-examination of the complainant in T20, the defence barrister was recorded to have said “you didn’t say no” “you didn’t scream” “you didn’t say stop” “you didn’t say anything at the time that meant you weren’t consenting.”

In T16, this myth was used frequently: “The defence barrister said ‘You weren’t struggling but behaving in a way that was leading him to believe that you wanted it’ – when the complainant answered that she was crying, the defence barrister replied ‘you didn’t say anything’. The defence barrister argued: “You did not struggle, you did not shout” / “You didn’t explicitly say ‘please get off.’” The defence asked “‘Did you actually say, “Please get off, or what are you doing here?’ (She said she froze)”.

In T18 the complainant was accused by defence of “not resisting the attack”. In the same trial the defence barrister was recorded as saying: “You didn’t say ‘no’ at any time” “Did you fight in any way?” “You didn’t fight even though you said you are good at defending yourself.” In T13, “The defence barrister said ‘you did not say anything’ because the victim did not react when the defendant assaulted her. She said she froze.” In T14, “The defence barrister asked the complainant why she didn’t jump or scream.”

Myth: If no injury or violence then no rape took place

Lack of physical injury was raised in several trials as evidence that no rape took place. In one trial, an observer reported that the defence commented “a lot about bleeding and physical damage – where is the physical evidence? Though rape does not need full penetration.” In another trial, defence counsel claimed that “She did not get injured” therefore it was not rape, even though it transpired she had marks on her legs after the incident.

In yet another trial the defence barrister “did make a fuss over no injuries or damage to her clothes.” Myths around violence were observed even when violence actually did occur. The defence barrister in one case suggested that if the complainant “had her clothes on when leaving… she couldn’t have been raped.” At another point, the observer records an exchange between the complainant and defence barrister about why she didn’t fight. When the complainant said she didn’t fight because she thought he had a weapon in his hand, “the defence barrister actually said ‘But he didn’t do anything with it did he?’ as if that threat of violence was OK.”

TREATMENT OF COMPLAINANTS

Defence counsel Of the 14 trials that reached complainant cross-examination by the defence, observers recorded what they viewed to be disrespectful treatment in 13. This conduct ranged from more minor behaviours like repetitive or persistent questioning, through to what observers regarded as behaviour that constituted harassment, aggression or bullying behaviour towards the complainant. In 10 trials, observers noted both respectful and disrespectful treatment of the complainant at different stages of the trial. In most cases, they observed initial politeness at the beginning of questioning, and increasingly disrespectful treatment as cross-examination progressed. In only one case124 did both observers comment that the defence was conducted in a respectful manner throughout the trial. It is interesting to note that the defence barrister’s exemplary and respectful behaviour was not disadvantageous to their client, as the jury delivered a Not Guilty verdict for the defendant. The main forms of behaviour that observers identified as disrespectful treatment were aggressive or harassing questioning; overly persistent questioning; cruelty or insensitivity during questioning; persistent accusations of being a liar; sarcasm, mockery and belittling complainants; raised voices and shouting; victim-blaming; and unreasonable attacks on the complainant’s character. During the course of the project, observers consistently expressed their opposition and distaste to what they felt was unreasonable treatment of complainants by defence barristers. There was also significant crossover between commentary on disrespectful treatment and evidence of rape myths provided by observers. In a number of cases, aggressive and dismissive treatment of the complainant on the stand were coupled with the use of rape myths, stereotypes and report as they were too numerous.

Below is a selection of comments which highlight the different types of treatment identified. Aggressive treatment or harassment In T1, one observer described the questioning of Complainant 1 as “vicious”, and stated that there was “nothing respectful about this questioning – absolutely oppressive and set out to infuriate and belittle the witness.”

The other observer agreed, saying “There was no respect shown to the complainant – a young person about to be questioned about the most serious of sexual crimes which she alleged happened to her when she was a child”, and described the questioning as “very patronising and disrespectful”. In T14, one observer noted that “following some initially pleasantries the remainder of the cross questioning was mainly aggressive and confrontational” and that “the defence barrister’s tone and body language was aggressive from the start and became heightened at times.” When asked what they saw that made them think the complainant was being treated respectfully, the other observer of this trial answered “Not a lot honestly” and cited the barrister’s “very aggressive body language” and rudeness to the complainant. In T15, one observer noted that the defence barrister “did raise his voice against complainant gradually over the cross-examination.”

The second observer also reported: “If I’m being honest I seen very little respect for the complainant. The defence barrister was quite rude and aggressive with the questioning”, and recorded that “the defence was screaming at the complainant and constantly saying the complainant was a liar.” Interestingly, this was one of the few trials observed that involved a male complainant, and this led one observer to opine: “I feel that had the complainant been female then he would have been shown much more respect from the defence.” In T16, when asked if there was anything that led them to think the complainant was treated respectfully by the defence, the observer responded, “Nothing I can remember or noted.”

The other observer described the defence’s tactics as “treating the complainant quite hard but in a very sneaky way.” In T18, one observer expressed the view that “the defence should not have been allowed to get away with as much as it did.” The other observer reported that the “barrister called the complainant ‘darling’. His tone was patronising during the whole cross-examination.” In T23, one observer had multiple reservations about the defence barrister’s conduct. These included: “Not allowing the complainant time to read documents before questioning. Pushing her all round her statement and then demanding an immediate answer” “The defence barrister is argumentative and repetitive, spoiling for a fight.” “Very aggressive, pushy intrusive questions, mainly about their relationship, rather than events on the night.” The conduct led the observer to question “How far does a barrister have to go before he gets a penalty?” In T25, there was a divergence of opinion between the two observers about the conduct of the defence towards the adult and child complainants. One observer stated “it was the worst I have seen. The prosecutor complained within 10 mins of the defence starting of his hostile confrontational tone. And it went downhill from there”. They went on to say: “The cross examination was aggressive and demeaning. The defence barrister went out of his way to be unpleasant and dismissive. Complaining at every step about the effect his deliberately insulting questions were having on the complainant.” This observer also made comment about the crossexamination of the second complainant, who was a child both at the time of the offences and at trial. In particular, the observer was critical of the fact that the “questions veered away from what had been agreed [in ground rules] – i.e. short simple questions”. By contrast, the second observer made only one brief comment about the conduct of the defence, describing the nature of the cross-examination as “robust but not disrespectful.”

Lack of sensitivity / cruelty In some cases, observers recorded particular instances in which defence barristers showed lack of sensitivity to complainants, often causing them anguish or upset.

In T1, one observer recorded that the barrister pursued a line of interrogation which blamed the complainant for not reporting the alleged offences earlier. They recorded: “It got to the stage when you could hear the girl crying and shouting [in the live link room] because she felt she hadn’t protected her little sister adequately. The defence barrister then complained to the judge about her behaviour on the stand.” I

n T10, both observers highlighted one incident during cross-examination of the second complainant as being particularly lacking in sensitivity. The barrister declared it was “convenient” that the only person she told about the offence, her sister, was now dead and therefore couldn’t testify. One observer described this as “the most brutal form of disrespect” and stated that “this was a very low moment.” In T18, the defence barrister was described as “relentless with the barrage of questions put to the complainant” which “did not stop or slow down when the complainant got very upset. Defence seemed to completely ignore the fact that the complainant had become extremely distressed.” In T25, one observer described the incredulity and sarcasm used when the complainant described decades of rape and sexual assault by her abusive partner. The observer described how “The complainant is so upset she starts retching in the live link room” during cross-examination, and “cried a lot”. The defence barrister complained that her distress “hampered his questioning”, and accused the complainant of faking her distress. The observer also noted that: “The defence barrister also asked her why she cried so hard in court but not in the ABE”, reinforcing myths about how victims of sexual violence tend to react in the aftermath of an assault.You can edit all of this text and replace it with what you want to write. Use the advanced editor to design this content page.