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|
|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.|
I Prosecution Opening
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
|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|
|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|
|How long did the evidence in chief last?||30 minutes|
|Was the IP offered a break (during video)?||Yes|
|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|
|Date and time the cross-examination started||The 1st 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?||no|
|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.|
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.|
I Defendant's evidence
|Did the defendant give evidence?||Yes||X|
|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|
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|
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)
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|
|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)||No|
|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|
|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 (3rd and 4th 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 4th 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.|
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.