Last week I went to a screening of the play Prima Facie. Jodie Comer gave a fantastic performance in a terrific piece of theatre. But it was theatre. Was it true to life? Did it really reflect the reality of a trial for rape? I spent over thirty years working in the Criminal Justice System as a barrister and I defended and prosecuted a large number of rape trials. I would agree with the character ‘Tess’ that the legal profession is male-dominated, it’s too slow even more so now but… and it’s a big but, I thought it showed a misunderstanding of the trial process. I didn’t glorify my record in successful defences of men accused of rape, rather I worried that the complainant had been misled about what would happen in court. The purpose of a trial is not to find the truth but to establish the facts on the basis of evidence given in the courtroom. The jury decides on those facts and then measures them against the definition of the crime to arrive at a verdict either guilty or not guilty. Note, the defendant is not found to be innocent. I don’t believe that today the jury are are not aware of the arguments put forward in play that they are unduly influenced by outdated ideas about how a witness might behave. Indeed they are warned against making assumptions of that kind by the judge in his summing up. Introducing psychological evidence as to how a woman might behave, I use might deliberately, is trying to substitute his/her professional judgement for the evidence.
Nor do I accept that every complainant has the same reaction as ‘Tess’. Some are tearful, some defiant and there was one who treated it as a joke. Cross-examination about the differences in the accounts they have given at different stages of the process is part of trying to establish the facts, but they are rarely about trivial matters.
There was no mention of the defendant giving evidence. No defendant has to go into the witness box but on the facts as they were portrayed in the play, I would have urged the defendant to give his account of their relationship and to say he believed ‘Tess’ was consenting. However, it may have exposed what I thought were weaknesses in his account of the events. A skilled prosecutor would have torn his case to shreds. Had he failed to give evidence the judge would have directed the jury they could hold that against him.
This play is just one person’s interpretation of a trial for rape and the attempt to give it authenticity by the short interviews with Emily Maitlis shown before the play was, in my opinion, misleading. I have used my experience to write a novel called Reluctant Consent which demonstrates a more nuanced approach than Prima Facie
The third Cassie Hardman novel has been on sale for six months and is receiving some good reviews and mainly four stars. This is one of them.
‘If you like court room dramas, and I do, this is one for you. A story steeped in country house crime, and the shady world of antiques and art. A complex cast of characters weave a tale which is compelling, absorbing and only too believable. Heroine Cassie Hardman is on sparkling form. Much to be admired for her endless battles rising in a world of men who reek of public school entitlement, Cassie shines out for her kind heart and integrity. You’ll be rooting for her until the end. The London criminal fraternity is drawn with great authenticity, no doubt based on the author’s experiences as a criminal barrister. Her detailed knowledge lifts this legal thriller above the ordinary. Was fascinated, for example, to discover you could once sell stolen goods legally at Bermondsey antiques market.
But she also turns a light on the world of barristers and inns of court which is both illuminating and at times worrying.
The story twists and turns expertly but it was Cassie’s own problems and flaws which bring such humanity to the novel, and all the time with good humour.’
It has been a long time in coming but at last my third Cassie Hardman book will be published on 3rd May. I’m not sure why it had taken so long, a short illness just after I published Reluctant Consent and republished Crucial Evidence and then the pandemic struck. At times I found it difficult to work but Legal Privilege has been edited and I have a cover design.
The picture is
of Grays Inn where the final scene of the novel is set.
The ebook is now available to preorder with a publication date of 3rd May.
I began this blog by writing about the cases in which I had played a role either as an articled clerk, then a solicitor and for over twenty-five years as a barrister. Although mostly I worked in the criminal courts -‘defending the indefensible’ I did some cases in the family court and a few cases in the High Court.
I have recently published a number of these anecdotes in a memoir called Trials, Errors, and Misdemeanors. It is available as an e-book and a paperback on Amazon. From tomorrow 7th June to 12th June the e-book is available free.
Just a quick thought as we move into 2019. In the last pages of her book, the Secret Barrister bemoans the lack of interest in the Criminal Justice System in comparison to the NHS or education.
Her book has been a best seller but in The Guardian, on Saturday the list of 100 bestsellers for the year was published and guess what ‘The Secret Barrister’ was nowhere to be seen but ‘This is Going to Hurt; secret diaries of a Junior Doctor’ by Adam Kay was number 2. Says it all really!
I would urge anyone who values freedom to read The Secret Barrister and for a more fictionalised account of how the Criminal Justice System works try either of my novel ‘Crucial Evidence’ or ‘Reluctant Consent.’ on Amazon.
Reluctant Consent my second novel is now available on Kindle. Here is a brief outline.
Barrister Cassie Hardman is being stalked by an unknown male. She doesn’t know why but there is some connection to the defendant Paul Sadler, who faced trial for rape.
Cassie struggles with the unwanted invasion into her life as she works on a murder trial – her most important case to date. Each communication forces her to relive her role in the Sadler trial.
How does a woman like Cassie cope with defending a man accused of rape?
Can she overcome the distress caused by her stalker and defend the accused in her current to the best of her ability?
Can the stalker be identified before she comes to any harm?
I went to see the film last night. I’d read the book when it was first published and did say in a review that I thought Ian McEwan had done a brilliant job of portraying the life of a lawyer – in this case a judge. The film is perhaps even better. Emma Thompson is superb as the judge Fiona Maye. Every advocate knows that moment as one walks into the courtroom – one’s personal life, ones feeling left behind. Emma Thompson gets it just right.
The scenes in court reflect the real world. One could say that the robes aren’t quite right but the behaviour is. A High Court Judge in a tetchy mood is not to be trifled with. It also demonstrates the emotional cost for lawyers dealing with these very difficult cases, not just in the family courts but in the criminal courts as well.
The setting of the film in and around the Royal Courts of Justice and Grays Inn are as I remember them. Elegant buildings, a haven from the rough and tumble of every day London, set around manicured lawns.
Custody disputes are distressing. There are no winners and the children are usually the ones who suffer most. Today courts do their best to ensure that no child is upset by the proceedings and very few attend court, their views being placed before the Judge by a social worker. But, at the start of my career, contested custody cases were heard by the High Court Judge when he came on circuit.
My client, Sarah, was disputing the custody of her two children, a boy of ten and a girl of eight. Since the divorce, they had been living with their father. He worked and they spent a great deal of time with their grandparents, neither of whom enjoyed the best of health. That was the basis for Sarah’s claim for custody of her children.
She was a strange character. A tall blond who always wore dark glasses because, she claimed, of some medical condition. This was her second divorce, although to be fair to her, her first marriage had not lasted very long and there were no children. She had left her first husband for the man who she then married and who was the father of the two children. This marriage had lasted twelve years, but then she had found another man, left her husband and the children. The new relationship was over very quickly and now she wanted her children back. I, rather cynically, thought she was more interested in the maintenance than their welfare.
When the court’s children’s officer spoke to the children they said they wanted to tell the judge they wished to stay with their Dad. I advised Sarah that she should withdraw her application for custody as I believed the Judge would not go against their wishes. The lapse of time – they had been with their father for over a year – was against her as well. She insisted the hearing should go ahead as she thought the children were being pressurised by their father.
The hearing was at Lancaster Assizes. The High Court Judge was on circuit and was sitting in the courtroom inside the Castle. This case would not be heard in that room but in the judge’s chambers. We waited outside the room in a narrow corridor, all of us crushed together. The children had been brought by the social worker. They ignored their mother’s smiles.
The door was opened by a very tall slender young man with lank fair hair dressed in a morning suit. He stood to one side and waved us into the room. He introduced the case in a rather high pitched voice. I had to suppress a smile at the thought that his voice hadn’t broken. The judge was sitting at his desk in the centre of the room. His robes lay over a chair and his wig on the desk. The room was quite large with windows that overlooked the Priory Church and a small square. One of those windows was the size of a door with a small step in front of it.
‘Come and stand here,’ the Judge said to the two children. They inched forward, eyes wide open.
‘Now, do you know what this room is called?’
They shook their heads, their eyes fixed on the Judge.
‘It’s called the Drop Room. And can you guess why it’s called that?’
Again they shook their heads. ‘Oh no.’ I thought. I knew what he was about to say.
‘You see that window there?’
This time they nodded but their eyes were even wider and they stared at the window.
‘You see it’s got a step up?’
Their faces were rigid and they only tipped their heads down.
‘They used to hang people from there. Pushed them out of the window with a rope round their necks.’
The children’s faces were white.
‘Well that’s not going to happen to you. Now, I understand you want to tell me about where you want to live.’
The little boy stuttered, ‘With Dad.’
The Judge looked at the girl. ‘And you?’
She took her brother’s hand and nodded, but couldn’t speak.
Not surprisingly the Judge awarded custody of the two traumatised children to the father.
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Identification issues used to be a frequent problem for the courts. The case of George Davies highlighted how unreliable an eyewitness can be. As an aside a friend of mine was involved with the Free George Davies campaign and was one of those who dug up the cricket pitch at Headingley just before a test […]
The trial was to take place at the Old Bailey and the Crown main’s evidence was that of the Professor. Although he had never seen Enid he wrote a full report on her and the dead children, dismissing the results of the post mortems and concluding she had murdered all three children. The silk leading me wasn’t over impressed but he didn’t think we could object to the report being presented to the court. We also sought the advice of one of the most experienced forensic pathologists in the country. He thought the Professor’s report was probably correct. We had a conference with him to try and see if there was any way of disputing it. One of the features of the case was that all the children were very premature.
‘Is it possible that being born prematurely would make them more susceptible to being the victim of SIDS?’ I said. I asked the question because I had been recently diagnosed with late onset asthma and my GP had asked me if I was premature. When I confirmed I was, she said there was a link between poor lung function and asthma. Also a friend of mine had a young child who was very premature and I knew he still had a number of problems.
‘The children wouldn’t have been discharged from hospital if there had been any risk,’ the pathologists said. The QC nodded his agreement.
It began to look as if there would be no defence to the case. However the psychiatrist’s report from the secure unit described Enid as having an IQ of 65, very low indeed. Additionally she had no sense of reality and confabulated all the time. That meant she told lies and she remembered her lies better than the truth. Their view was that her admissions to the social worker and the police were unreliable. Without the admissions the prosecution case was reliant on the Professor who didn’t examine either the children or Enid and was in conflict with the evidence of the pathologists who had carried out the post mortem.
The prosecution had their own psychiatrists examine Enid and they too came to the conclusion the admissions could not be relied on. The prosecution was dropped and Enid acquitted on all three counts of murder.
That wasn’t the end. When Enid gave birth to her fourth child the baby was taken into care and the subsequent care proceedings in the Family Courts confirmed that decision. The judge found on a balance of probabilities she had killed her children, but of course he was relying on the Professor’s theory which has been discredited.
So did she kill her children? What about the low IQ of both Enid and her husband? In addition the children were all born prematurely; what role did that play? Both Enid and her husband smoked – a known factor in SIDS. Then they were very poor and that too may have meant Enid could not afford the new mattresses, a recommendation to reduce the risk of cot deaths. Enid was probably incapable of raising a small child but a finding of killing your child must be very difficult to recover from.