In defence of Russell Brand’s lawyer

No sooner had Russell Brand been convicted of rape and sexual assault than criticism started rolling in for those who conducted his defence. This has focussed largely on his barrister, Ian Winter KC.

Some of the flak heading Winter’s way stems from his behaviour after Thursday’s verdict. That was when he swore at Sunday Times journalist Rosamund Urwin, whose 2023 investigation led to Brand’s victims coming forward. She said justice had been done, to which he responded that it hadn’t because her investigation had ‘fucked it’. As a result, he has reported himself to the Bar Standards Board.

Much of the criticism, however, relates to how he approached the trial itself. Some commentators have claimed that his cross-examination of the complainants and victims was too aggressive. Metropolitan Police chief Sir Mark Rowley has even said that Winter’s approach was ‘close to victim-blaming’.

No one doubts that criminal trials, especially rape trials, can be terrible ordeals for the victims. They are forced to relive their trauma in public and under intense scrutiny. I cannot imagine what it is like to be aggressively cross-examined about the details of these terrible crimes.

Still, that doesn’t mean Brand’s barrister did anything wrong. Barristers are professionally obliged to put the defendant’s case to the witnesses. Some may think that an aggressive style of questioning is always inappropriate when dealing with survivors of assault. But Brand’s case was that these women had lied. If your argument is that people are lying to send you to prison, it is understandable why questioning may be ill-tempered and aggressive.

Cross-examination is an essential element of a fair trial. It is part of the defendant’s having his or her say. It is up to the lawyer to decide how to present that case. That we allow advocates this degree of discretion in choosing how a case should be put in court is a sign of a civilised society.

The case against Brand was based on historic allegations that came together as a result of a public appeal for witnesses. Winter was criticised for raising the length of time it took for complainants to come forward, and the fact they only did so in response to a high-profile media investigation. This has prompted some to accuse him of propagating ‘rape myths’.

But the fact that the women waited a long time to report the offences is relevant. It is not decisive, but it is a consideration. So is the fact that they only came forward as a result of a Sunday Times and Channel 4 investigation. Judges now direct juries that complainants might wait to go to the police for all sorts of reasons, which is of course true – but that doesn’t mean that such delay is completely irrelevant to the jury’s deliberations.

Criticising Brand’s lawyers for attempting to defend him sets us on a worrying path. It makes the trial feel like an inconvenience on the way to a foregone conclusion of guilt.

Over decades, we have accepted that cases involving sexual violence need special rules to make them easier for victims. Some of this has been welcome. The introduction of screens to protect a complainant from seeing the defendant in court was reasonable. Some other measures – such as pre-recording a complainant’s evidence and playing it to the jury, rather than having the complainant give evidence in person – have fundamentally altered how these trials are conducted, in favour of complainants. Whatever your view of these measures, they are gradually normalising the idea that rape trials are somehow different from other criminal trials. The endpoint of that line of reasoning is getting rid of juries altogether in rape trials and having the cases heard by judges.

This would be a disaster. These crimes are about the minutiae of human behaviour. The jury in Brand’s case clearly took their job incredibly seriously, returning guilty verdicts on some counts and acquitting on others. Time after time, juries have been shown to be impartial in their treatment of these cases. They are the most sophisticated mechanism we have for reaching a verdict on the strength of the available evidence.

So let’s defend barristers’ right to put their case robustly. Because behind the criticism of Ian Winter is a coded invitation to do away with fair trials altogether. That would be a disaster for justice.