‘Prima Facie’ part one – Silenced in Court

Suzie Miller’s powerful play ‘Prima Facie’ is leaving audiences reeling, with Jodie Comer’s portrayal of Tessa resonating with women all over the country. It’s prompted a conversation about our criminal justice system, which is currently set up to fail survivors of sexual violence. Can the wheels of justice turn quickly enough for the next generation of jurors and judges?

TRIGGER WARNING – this article contains references to rape and sexual assaults.

I watched ‘Prima Facie’ at Thurso’s Merlin cinema, sitting beside my 79-year-old mother. One of Comer’s live performances at London’s Harold Pinter Theatre was recorded and then beamed all over the UK. I’ve never seen anything like it in my life. Its effect on me was raw, emotional and powerfully positive. I’ve been relating it to my own experiences ever since and I’m almost zealous about my feeling that everyone (aged 15+) should watch it. Probably to the point of irritating people who haven’t yet seen it. Almost everyone I’ve mentioned it to has said, ‘Oh, Jodie Comer, she’s a legend.’ She is, yes, but this play is about all women, not just famous actors. I hope it’s shown on TV before too long. The £20 ticket price (tickets to see it live started at £90) doubtless discouraged many people with low disposable incomes, people – and there are millions of us in this category – more concerned with the energy and cost of living crises than live theatre just now. At least there’s a book out that can be borrowed from your local library. Everyone should know this story, whether you live in a city council estate or a huge rural mansion. The themes are universal. I felt very grateful to be able to watch it in Caithness, where I live in the far north Highlands.

Prima Facie literally means ‘at first face’, or upon first impression. For those who haven’t seen it, ‘Prima Facie’ tells the story of Tessa, a working-class criminal defence lawyer, a woman who defends men against allegations of rape. Tessa is at the top of her game until she is raped by a colleague and sees the system from the other side, from the victim’s perspective.

I was delighted to discover that Rebecca Lucy Taylor composed the play’s minimal yet fantastic score. SELF ESTEEM, Rebecca’s stage name, has been nominated for a 2022 Mercury Prize for her brilliant album ‘Prioritise Pleasure’. 

Although the subject matter is heavy, there is some humour in the play. Comer is first seen standing on a table in her wig and gown eating what looks like a Pot Noodle. We see glimpses of Tessa’s relationship with her lovely mum; as characters they couldn’t be more different but the love and affection between them is clear. This dynamic will be familiar to many women. Comer looks out towards the audience to sing the word ‘Fail!’, tongue firmly in cheek, each time her mum perceives some tiny wrongdoing on Tessa’s part.

The humour is needed because without it, the play would be too intense. Essentially, ‘Prima Facie’ highlights the fact that the legal system in the UK is set up to fail women and that something needs to change.

I don’t know many women who haven’t either been sexually assaulted, had drinks spiked and/or suffered domestic violence. But women’s voices are not heard or believed in court as it stands. The statistics, which of course only tell part of this real-life collective horror story, paint a grim picture. According to Rape Crisis Scotland, only 51% of rape and attempted rape trials result in a conviction. Compare this to a 91% overall conviction rate. In 2020-21, there were 2,176 rapes and attempted rapes reported to Police Scotland. But only 152 prosecutions. 

And 78 convictions.

Only around half of those seeking support from Rape Crisis Scotland had reported their experience to the police. The Scottish Crime and Justice Survey 2019/20 found that only 22% of those who had experienced forced sexual intercourse reported it to the police afterwards.

If you rape someone in Scotland, you’ve every chance of getting away with it.

The situation in England and Wales is equally grim, with just one in 100 rapes recorded by police there in 2021 resulting in a charge that year, let alone a conviction. 

Globally, nearly one in three women will be subjected to physical or sexual violence over their lifetimes. One of the most powerful parts of the play involves Tessa referencing this horrific ‘one in three’ stat by asking the audience to look to their left and then to their right. The effect is immediate in putting a dry statistic into a very real-life physical context. 

When you think about the prevalence of rape culture and violence against women and girls in Scotland, essentially what we’re doing is normalising male behaviour that’s absurd as well as unacceptable. Unfortunately, women are so conditioned to expect male violence that walking home from the pub with your keys scrunched up in your fist doesn’t feel particularly harrowing or wrong at the time, it just feels normal. The point is, we shouldn’t have to live like this. It shouldn’t be normalised. And I’m not sure most men understand this culture of fear, this panic mode that women and girls, even those living in relatively safe places, normally operate in.

Clearly, the legal system needs to change. I tried finding someone experienced in Scottish criminal law to answer a few questions about ‘Prima Facie’ and any real-life implications. The Law Society of Scotland told me: “Unfortunately [they had] not been able to get in touch with any of the colleagues who might have been able to help you on this.”

Next I tried Scotland’s Crown Office & Procurator Fiscal Service. They told me, “COPFS don’t provide legal advice or commentary on the operation of the wider justice system, so we are unable to fulfil the request to provide a spokesperson to answer the questions.”

Fair enough. They’re not really in a position to answer these questions. But I still needed a lawyer’s perspective on the play. So I asked Glasgow University’s Regius Professor, James Chalmers, who had luckily seen a performance of ‘Prima Facie’, to explain how Tessa’s fictional experience of the criminal justice system could be improved in future real-life rape cases. 

English law is not the same as Scots law, but it is very similar. As Professor Chalmers put it, “Nothing that happens in ‘Prima Facie’ would look unfamiliar to a Scots lawyer. A few differences are that Tessa mentions that she turned down the option to give her evidence on video rather than in court. That possibility is, I think, much more common in practice in England than in Scotland.”

A second difference is that a Scottish prosecution would require “corroboration” or two sources of evidence.

“Tessa’s testimony itself wouldn’t be enough. It’s likely that if someone were writing a Scottish version of the play, I expect they would highlight that aspect. Although it would be possible to find corroboration in a combination of some or all of, for example, the taxi driver having seen her in a distressed state, the medical examination, or Julian admitting that sexual intercourse took place. And so the case would come down to the same question – whether the jury believed her account had been proven beyond reasonable doubt or not.”

The third difference is that a Scottish jury would have the option of a ‘not proven’ verdict. This is important in that Scottish government figures released in May 2021 revealed almost a quarter of trials for rape or attempted rape result in a ‘not proven’ verdict. However, First Minister Nicola Sturgeon recently announced plans to drop the controversial not proven verdict.

There are also simple language differences. For example, in Scotland we have complainers whilst in England the term complainant is used. In Scotland we refer to ‘the accused’ whereas in England they are known as defendants.

Before ‘Prima Facie’ itself starts, audiences are shown a roundtable discussion chaired by journalist Emily Maitlis and featuring Suzie Miller, who wrote the play, Jodie Comer, DSI Clair Kelland from the Met Police and criminal barrister Kate Parker, who founded the Schools Consent Project. They discuss the problems highlighted in the play, its wider social context and possible solutions.

As Professor Chalmers pointed out, “It’s difficult to put your finger on exactly what needs to change. And that comes across in the play – Tessa’s speech towards the end diagnoses the problem but struggles to find a solution. The reality is probably that there is not one single solution.”

The good news is that the wheels of justice are at least turning here, albeit slowly. As the professor told me, “Generally speaking, the will seems to exist to do something about these problems.”

The legal situation in Scotland is hopeful. There is a strong possibility of wide-ranging future reform. A cross-justice review group, chaired by the Lord Justice Clerk, Lady Dorrian, published its report in 2021. Known as the Dorrian Review, it was commissioned by senior Scottish judge Lord Carloway and recommended a series of measures currently under consideration by the Scottish government. All of which would help victims considerably.

The Dorrian Review starts with the premise that conviction rates are very low and that, currently, complainers are severely re-traumatised by their experience going through the criminal justice system. The report states that, “It is not acceptable that only around six per cent of reported rapes result in conviction, especially when there is evidence that a substantial proportion of incidents go unreported.” 

One systemic problem that ‘Prima Facie’ highlights is the enormous delays within the system, which, as Professor Chalmers puts it, “are a huge impediment to justice.”

He believes these delays are “less acute currently in Scotland than in England and Wales but delay is a problem here too and that cannot easily be solved other than with more resources.”

One of the Dorrian Review’s recommendations is that police take video recordings from alleged victims, video evidence which can be used in court. At the moment the system is designed around the presumption that evidence is given in court and police statements are simply used to prepare the case. However, the existing method pretty much ensures a victim is ‘retraumatised’ by reliving her experience in court months and months after the incident took place.

Professor Chalmers said anecdotally he thinks prosecutors have “some concern that video-recorded evidence may be less compelling, although there is (limited) research suggesting that this may not be the case.” 

The Review also recommended creating a national (Scottish) specialist sexual offences court. Key features would be routine pre-recording of evidence for all complainers and trauma-informed training for all personnel, including judges. Indictments which feature sexual offences alongside other serious offences, such as murder/attempted murder, or where an Order for Lifelong Restriction might be under consideration, would be heard in the High Court, presided over by a judge with specialist training. There would be provision to transfer cases from the High Court to the specialist court and vice versa.

The use of a specialist sexual offences court within the Scottish criminal justice system is (as the Dorrian Review points out) not entirely new. We already have a domestic abuse court that has been running for several years. The Review was also “influenced by the specialist sexual offences court in New Zealand, which has resulted in shorter case conclusion times and reduced trauma to complainers.”

It will certainly take several years before things noticeably improve in Scotland. But the costs might not be as enormous as we imagine. As Professor Chalmers explained, “The specialist court would to a large extent be using existing resources but configuring them differently.”

In terms of sentencing rapists, the current maximum penalty is life imprisonment. But the average sentence for rape and attempted rape is seven years. If the specialist court happens, its sentencing powers would only be up to ten years’ imprisonment. Therefore if a prosecutor thought more than ten years was appropriate, they would have to bring the case to the High Court instead, where all rape cases must currently be heard. Professor Chalmers’ view is that the specialist court should have sentencing powers of up to life imprisonment.

I was intrigued to learn about the different ways an alleged rape victim and the accused would be treated, in terms of admissible evidence in court. Professor Chalmers told me: “The rules are the same for all parties except that the rules about sexual history evidence and access to medical records are about the sexual history/medical records of the complainer. In theory there could be an issue about accessing medical records of the accused, although cases involving that issue are likely to be rare.”

In terms of balance and fairness, it seems strange and, frankly, wrong that the sexual history and medical records of the complainer, the victim, are deemed important but not those of the accused.

Regarding the issue of anonymity, if the Dorrian Review is acted on and made law in Scotland, the new legislation would make anonymity automatic for complainers in rape cases. Whereas at the moment, anonymity in Scotland is usually just a matter of media practice rather than a legal requirement; this doesn’t prevent individuals naming complainers unless the court has made a specific order prohibiting it.

The convention that complainers are not named, supported by the Editor’s Code of the Independent Press Standards Organisation, has not always prevented complainers from being identified. In this, Scotland is out of step with England and Wales. As such, the Review recommended that “legislation is required to ensure the adequate protection of the identities of complainers making allegations of rape and sexual assault”.

The Review notes that judges saw acquittals being returned “even in cases with ample evidence of high quality” where it was “difficult to understand the rationale” for this. In other words, evidence of rape myths influencing jury decision-making is overwhelming. One of the Review’s most radical suggestions is that judge-only trials could be considered. Lady Dorrian outlines many other proposals, but, as the Review concluded, if these measures are not effective, “Parliament may have to decide whether it is acceptable that such a high proportion of trials for rape end in acquittal, given the nature of the crime which represents the most profound invasion of personal autonomy”.

However, as the report notes: “Any encroachment on the use of jury trials has tended to meet with resistance among at least some sectors of the legal profession – an initial proposal to use judge only trials to clear the backlog of cases caused by the COVID pandemic was short-lived. Such resistance has already materialised in response to the Review’s proposal.”

This resistance could be a significant stumbling block – judge-only trials would be likely to be very strongly opposed by the legal profession (although probably not unanimously) and if a pilot required accused people to ‘opt in’ to a judge-only trial, their lawyers might think it was rarely, if ever, in the best interests of the accused to agree.

But the Review did not reach its conclusion on judge-only trials lightly – it gave full consideration to the arguments in favour of juries, such as their life experience and the “democratic benefit of community involvement”. Against this, however, the Review argued that the evidence that jurors are influenced by rape myths “cannot be left unexamined and ignored”.

Judges, of course, may be prone to subconsciously believing rape myths too.

But unlike juries, judges must give reasons for their decisions. And false beliefs are more easily addressed. Judges are a relatively small and easily identified body of people – even more so given that the specialist court will be presided over by a small pool of judges – who can be educated over time. It may be surprising that we have to educate our judges, but that’s the reality of where we are right now. The Review notes that “It is perplexing… as to why jury trial is regarded in some quarters as sacrosanct. The concept of a fair trial does not hinge on involvement of a jury. Indeed, there are many jurisdictions around the world, including those bound by the European Convention on Human Rights, that do not have lay participation in criminal cases at all.”

The Review recommended that for cases prosecuted in the specialist court, pre-recording of the whole of the complainer’s evidence, including cross-examination, should be the default way of presenting evidence. Meaning that an initial video-recorded interview with the police will act as the complainer’s evidence-in-chief.

In terms of the complainer experience, the Review drew heavily on the report ‘Justice Journeys’, which presents findings from 17 in-depth interviews with sexual offence complainers and “makes for harrowing reading”. Participants found the process of having their statement taken by police challenging and lengthy, many had limited understanding of the legal process, experienced protracted delays, and those whose case did make it to trial found the process of giving evidence “severely retraumatising.”

As the Dorrian Review notes: “The use of pre-recorded evidence, at least in the Scottish context, is not as novel as it might sound – it is a continuation of ongoing work by Lord Carloway and the Scottish Courts and Tribunals Service. One result of this work is that a legal presumption in favour of pre-recording the evidence of child witnesses has been operating in Scotland since January 2020. The benefits that pre-recording evidence might have for sexual offence complainers and the justice system more widely, cannot be over-stated. Involvement as a witness is concluded sooner, with the distressing wait to give evidence minimised. Cross-examination is shorter, and more reliable evidence is secured, as taking evidence as close as possible in time to the alleged incident reduces the risk of memory loss or contamination. It may also go some way to alleviating the re-traumatisation complainers experience when giving evidence in court.”

And while there might be concern that this way of hearing evidence encroaches on the accused’s right to challenge the evidence, experience to date does not support this. As the Review stated, “It is quite feasible for the rights of the accused to be vindicated by sensitive cross-examination, and for that cross-examination to take place outwith the presence of the jury”.

The Dorrian Review also welcomes the move to give complainers the right to publicly funded ILR, or independent legal representation, especially to stop inappropriate admission of evidence relating to her sexual history in court. It’s already prohibited in law to lead on a complainer’s sexual history, however in practice this law has not always been well-enforced.

If everything the Dorrian Review recommends happens it will be seen as a bold, radical reform of the laws regarding sex crimes in Scotland. But reform to date has been seen by some as fiddling about at the edges.

A solicitor who wished to remain off-the-record told me that, “Everything in Scotland is being done and is being considered for an improvement to the system. Please believe me when I say that the court procedures of 1979 were nowhere near the sophisticated and sensitive approaches to proof of crime now. However, it has to be said that there are in all crimes two sides to every story. A trial is not a mere denunciation: it is proof of facts under rules.”

They also said: “It is not that the practitioners are uninterested in reform, but it is certain that there are so many commentators and pressure groups for various areas of the law now that the views of practitioners are probably irrelevant. It is arguable that the criminal courts have now been politicised, in the sense that the criminal law, law of evidence and criminal procedure are all the subject of plans or policy for reform, which is not an issue as they have always been reformed, admittedly sometimes gradually.”

As I write this, a judge has just ordered a retrial in the case of the footballer Ryan Giggs, whose ex-partner Kate Greville accused him of controlling and coercive behaviour. A jury failed to reach a verdict after 23 hours of deliberations. I’ve no way of knowing anything about this case or their relationship. But media reports are full of his side of the story, with his lawyer comparing Giggs and Greville to “squabbling children, teenagers at best”. The problem with infantilising him in this way is that by treating him like a child, it legitimises the alleged bad behaviour, implicitly giving him permission to act like a spoilt child. And implying that his ex-partner is equally childish or childlike is an underhand way of questioning and diminishing her sense of authority, making her version of alleged events less likely to be believed or taken seriously. Back in the real world, Greville is 37 years old. Ryan Giggs is not a child and he’s not a teenager. He’s an extremely famous rich white 48-year-old man who, because of his job, is a role model and hero to millions of young football fans. People want to believe the best of him, that he isn’t capable of violence against women. Football legend Sir Alex Ferguson told the court Giggs has “a fantastic temperament” and that he never saw him lose his temper. But a person can be completely different at home from how they are at work. What chance does Greville have of being believed in court by a second set of strangers, each with their own set of prejudices and beliefs about how victims should look and behave? Does this beautiful woman look like a victim?

Systemic problems require systemic solutions. But if women continue to be effectively silenced in court and have little faith in the criminal justice system, that only leaves the frankly terrifying prospect of what I can only describe as natural justice. I remember a very pretty friend telling me a story about coming out of the pub with a group of friends late one night. A drunk guy kept hassling her, trying to hit on her. She kept telling him to leave her alone, politely at first and then more assertively. He wouldn’t give up. Eventually the woman’s brother-in-law punched him square in the face and he staggered away bleeding. For her sake, I’m glad her brother-in-law was there and brave (drunk?) enough to step in. But if the police and the courts can’t or won’t deal with harassment properly, the only other solution seems to be street level squabbles and violence. I remember a male boss asking my husband why he hadn’t punched a guy we both worked with who had been a wee bit sleazy towards me. Every time I see this caveman mentality it saddens me and makes me feel so weary of human behaviour. It’s barbaric and shouldn’t be necessary in 2022.  

During the roundtable discussion before ‘Prima Facie’, Kate Parker tells the group about a judge in a recent sex case that was minor on the scale of sexual assault. Her client had grabbed his flatmate’s bottom as she was wearing a towel coming out of the shower. “The judge said, ‘Ms Parker, I urge the CPS to review this because I really don’t consider a slap on the bottom to be a sexual assault’. And he just said it in open court. And you’re sat there as a defence barrister thinking great, that’s a good comment I can put in [representations] to the CPS and try to get them to drop the case. And you’re sat there as a woman thinking, God this is appalling because you’re a judge and you’ve just said this in an open forum. My client is emboldened because [the] judge is on side and he knows it’s all going his way. That’s a very specific example. But I think unless we’re seeing a different culture coming from the very top of this system, it doesn’t matter how well we train the young people going through their lives, but also sitting on juries and, hopefully not, but potentially going through the criminal justice system, if it’s still run by largely old white men with very fossilised views on sex, on consent.” 

Perhaps eventually the law, and the application of those laws in court, will improve and be more balanced in the victims’ favour. But we know that if the kind of low-level sexual harassment Kate Parker describes goes unchecked, the perpetrator’s behaviour can easily escalate to more serious crimes. As it currently stands, a woman’s life can be devastated twice: first when she is subjected to a serious sex crime and then once again – usually after a huge delay while her life is put on hold – when she relives her traumatic experience in court. And at the end of all that, she only has a 50/50 chance of achieving justice.

FURTHER READING

The Scottish Government’s report, ‘Improving the management of sexual offence cases’ – AKA The Dorrian Review, published March 2021

Analysis of the Scottish Government report ‘Improving the management of sexual offence cases in Scotland: The Dorrian Review by F. Leverick, Edinburgh Law Review (2021), 25(3), pp. 385-393  

Justice Not Served

Justice Journeys