In a roller coaster week the trial galloped at break neck speed. Rob continued his manipulation struggling into court using a walking stick that he has not needed for several weeks. He then went on, pants on fire, to lie so convincingly all the way through his evidence. Helen gives a good account of herself in her evidence. The collective sigh of relief when Helen finally disclosed the harrowing sexual violence she survived was closely followed by anger moving to uncharacteristic vindictiveness as many of us were quite pleased when the newspapers were emblazoned with images of Rob described as a rapist (more on that later). A tweeting Juror was removed from the jury.
The trial process
The Prosecution opening statement sets the scene for the case. The prosecution can open their case in any way they wish and their account of the evidence the prosecution intend to bring cannot be criticised by the defence no matter how aspirational it is.
The prosecutor is a minister of Justice. Prosecutors are tasked with representing the crown (that is Regina, you and me) without “fear or favour”. The independence of the prosecutor is taken as given and Mr Bywater, was correct in telling Rob and his odious father that he is not “Rob’s” barrister. It was all the more unfortunate that he then, clearly against his better judgement, went on to cross examine Ian in the manner that he did following Ian’s character evidence. As explained previously character witnesses are important, though not factual, witnesses. While there is no rule to prevent it, it is unusual for them to be cross examined in this way.
These were considered in the week ending 04/09/16. There were several important parts of Helen’s evidence which did not come to light, as they perhaps should have done, before the trial. These included:
- That Helen acted in self-defence (specifically in defence of her son who she believed to be at risk of harm)
- The history of domestic abuse including physical and sexual violence
- Sotto voce - Jess’s evidence does not fall into this category because she did not agree to be a defence witness until her change of heart as a result of the publicity regarding the case.
Together with the fact that Helen did not answer questions in interview, the combined effect of these inferences were to make the jury’s job in determining Helen’s guilt or innocence much harder. While a defendant cannot be convicted on an inference alone, it is easy to see that inferences dent the defendant’s credibility. This is the reason that the Judge asks Anna Tregorran whether she has agreed that line of questioning, concerning domestic abuse, with the prosecution. It is like a big fat warning to make sure Anna knows that she is in the evidential territory that might result in an adverse inference against her client’s interests.
Kirsty did her best to help Helen at trial. That is in fact the problem. It is very difficult for witnesses to avoid trying to help the party that called them, but the best way to give effective evidence is to assist the court by giving evidence truthfully, accurately and clearly. The prosecution began to treat Kristy as a hostile witness. On an application to the court, the party calling the witness can cross examine the witnesses as if they had been called by the other side.
Offences committed at court
The public – contempt in the face of the court
We can all understand the emotion that spilled over in the public gallery at various points in the trial. Justice Lumis dealt with the incidents pragmatically and emphatically. Such outbursts in court can amount to contempt of court if they substantially affect the smooth running of the court. The range of penalties include, taking the offender down to the cells until the court day has concluded, a fine or imprisonment to “purge” the contempt.
One of the jurors tweeted their view on the evidence of Helen and Jess in colourful, misogynistic and homophobic language. Jurors are randomly selected from the area surrounding the court and the strength of the jury system is in the variety of views held, no matter how unpalatable. The juror was discharged (removed) from the jury and should be very worried about what will happen to them next.
Jurors make an oath or affirmation that they will faithfully try the defendant and return a true verdict according to the evidence. Anything that may prevent a juror, or the whole jury, from remaining faithful to their oath or affirmation, or otherwise compromises their independence is a risk to the integrity of the justice system and retribution is swift and harsh.
Jurors are repeatedly advised about the need to keep matters confidential; to discuss the case only when all 12 are present; of the need for any decision to be based on the evidence (heard in court) alone. Of course, they are also told to add their experience and common sense to the mix in coming to a decision about the evidence. There have been a number of highly publicised cases of jurors failing to follow these rules and either sharing information about the trial on line or indulging in a touch of private research to satisfy their own curiosity regarding aspects of the case. Both of these behaviours can amount to Contempt of Court (in addition to any specific offences under the Juries Act 1974 as amended by the Criminal Justice and Courts Act 2015). Penalties for such behaviour have so far resulted in custodial sentences for the offending Jurors.
Ursula and Pat met in the witness waiting room at court. Historically the witness service receives and looks after predominantly prosecution witnesses at court. Witnesses are provided with a comfortable and secure waiting room to read their statements, consume copious amounts of tea and biscuits, together with the reassuring smiles and support that are available on tap. There is no such provision for defence witnesses. I have often wondered why? There are very recent moves to change this, via the new Citizens Advice witness service and I am hopeful that they will be effective. In any event, Ursula is vile and pontificating, seeking to unnerve Pat in describing the way Ian was belittled in cross-examination. But, hold on. Firstly, witnesses are not allowed into the court until they give their evidence. Secondly each witness is told not to discuss their or the evidence heard in court with anyone else until the conclusion of the trial. So Ursula should not know about Ian’s evidence. A person who breaches the rules laid down by the judge runs the risk being charged with Perverting the course of justice or Contempt of Court.
Understatement of the week
Goes to Rob. Helen’s description of the sexual violence she has suffered leaves Rob’s character emblazoned over the papers to which he comments “my wounds will heal, but that sort of suspicion never goes away” . That is, in my experience, correct and a sentiment commonly expressed by many accused of rape and other sexual offences. Whether right or wrong and what, if anything, we should do about it is the subject of much debate.
From the Archers to Archbold 11/09/16 – The verdict
In an unprecedented hour long episode Justice Lumis sums up the case and provides directions on the law, sending the 11 jurors to deliberate. The jury deliberations are feisty and fraught. What sounds like bickering is in fact exactly what we want to hear as they individually apply their minds to the evidence. Not as elegant as 12 Angry Men but just as effective as Helen is acquitted on both charges of Attempted Murder and causing Grievous Bodily Harm with Intent. Jurors are randomly selected from the area that surrounds the court. I wish I could do jury service!. It would be fascinating to see what happens, which points land well and to what extent the personalities and abilities of the advocate influence the decision. There are strict rules about research into jury behaviour and of course, the Juries Act makes everything that is discussed confidential for ever.
While there is no rule about how to elect a foreman Karl putting himself forward the way he did was a little uncomfortable. The feeling of unease continued as he sought to manipulate individuals and sway the discussion. The purpose of the foreman is to chair the discussion and ensure that each juror is able to contribute to the decision. The foreman does not have a casting vote and so Karl’s soliloquy in which he urges his view upon the jury “as your foreman” in fact does not have any additional weight. All jurors are equal and the foreman does not have a casting vote.
The burden & standard of proof
Justice Lumis will have directed the Jurors on matters of law together with providing a document containing a “route to verdict”. The route to verdict is a handy ready reckoner which assists the jury to apply the law to the facts that they find. In this case it might be something like:
- Did Helen Titchener act in self-defence? If yes: Not guilty; if no go on to consider question 2;
- Did Helen Titchener intend to kill Robert Titchener? If yes, guilty of count 1(attempted murder); if no, not guilty of count 1 and go on to consider question 3;
- Did Helen Titchener intend to cause serious harm to Robert Titchener; if yes Guilty of count 2 (the answer to this question cannot be “no” as Helen deliberately used a knife).
It was excruciating at times to hear the jury discussing their approach to the evidence. If any of them had approached the judge about it, there was a real risk of losing more jurors! The minimum number of Jurors required is 9. Thank goodness for wise, confident Jackie who reminded them emphatically about the burden of proof (it is for the crown to prove that Helen did not act in reasonable self-defence not for Helen to prove that she did) and the standard of proof (the crown has to prove the case so that each juror is sure that Helen did not act in reasonable self-defence). Any lingering doubt about the crown’s case, even if the jury do not entirely believe everything the defendant has said, should result in an acquittal.
Juries are told that a unanimous verdict is required. Unanimity of the decision is incredibly important to the acquitted defendant. It creates the emphatic sense of absolution that acquitted defendants crave at the end of a trial. A Majority (verdict) direction can be given by the judge after the jury has deliberated for at least 2 hours. The clock starts when the last jury leaves the court room and stops when the first juror returns to court. In practice, the judge will not give a majority direction until the jury has been deliberating for at least 2 hours and 10 minutes i.e. to allow for travelling time between the court room and the jury room. A majority direction:
- Asks whether the jury have reached a verdict on which they all agree; if the answer is no;
- Directs the jury to continue to deliberate and try to reach a decision on which they can all agree;
- Directs the jury that If that cannot be achieved, they are able to return a verdict on which at least 10 of them agree.
If there were 10 jurors a majority verdict will be 9 to 1. In addition to the length of time the jury has been deliberating, the judge will take into account the nature and complexity of the evidence and canvass the views of the advocates before giving a majority direction.
Is that the end of the criminal law in this storyline?
My elation with the verdict almost immediately turned to horror as Rob confronted Helen in the corridor. Helen held her own (though I am a bit worried that her failure to tell her parents or Anna about the confrontation means Helen’s is still, to some extent, controlled by Rob).
Will Helen make a criminal complaint to the police regarding Rob’s coercive and controlling behaviour or rape? Many defendants ask me about what they can do following an acquittal. Complaints to the police and CPS are high on their list as well as suing the complainant in some way. In most cases, no matter how strong feelings are before the trial, the sheer exhaustion that follows a trial and the need to recover and start living normally again, means that post trial, very few take any action at all leaving karma to sort out the details.
We wait with bated breath for the other foot to drop. I will bet my mortgage that this isn’t the last time the criminal law will feature in this story line. Possibilities include Harassment, Child Abduction and Assault.
Understatement of the week
Goes to Anna Tregorran. In discussion with Pat following the verdict, describing the emotional, physical and financial maze that is the criminal justice process, Anna expresses the view that “the law is designed the way it is for good reason but it is not always humane”. A sentiment that most criminal litigation practitioners, defence and prosecution, express at least once a day.