BONUS EPISODE: Russell Brand and the reality of rape trials

0:00Nothing beats a good catch-up with your nearest and dearest, and that's what we do on Life with Nat. I'm Natalie Cassidy and on my podcast, I'm joined by the people who make my life brilliantly chaotic. There's my fiancé Mark, my brother Tony, my sister-in-law Aunty Linny, and my nieces Ellsbells and Roro. One minute we're laughing, the next we're putting the world to rights. Join the family and listen to Life with Nat every Monday and Thursday, wherever you get your podcasts. What you're about to hear is our Tuesday Members episode with me, Beth Rigby and Jess Phillips. You'd normally have to subscribe to hear this, but we thought that this week, because this story is so important in terms of what it means for victims, survivors and our legal system, we felt we needed to make an exception.

0:48And as always, if you'd like to become a subscriber and access these episodes every week, then the link is in the show notes. I should also say that this episode was recorded before the allegations against David Walliams were published. And we do talk about those on Friday's episode. So do give that one a listen as well.

1:07Jess Phillips: Sky News, the full story first.

1:18Hello and welcome to Electoral Dysfunction with me, Beth Rigby. Me, Ruth Davidson. And me, Jess Phillips. Welcome to our members edition of the podcast and we're going to do our usual explaining on how things work today. But there's really only one story in town and that is the conviction of Russell Brand as a rapist and the fallout from that. Yeah, and we're lucky enough to have an expert on violence against women and girls in Jess Phillips on the podcast. So hopefully, Jess, you can help us understand what goes on inside the courtrooms, why there's been criticism in this particular case of how victims were handled, particularly when they were on the stand.

1:55And we can also get into whether Andy Burnham was right to suggest this weekend after Brand's conviction that rape trials may need to reform. This case has been everywhere. It is a massive story. But look, to get straight into it, I just want to remind you, former actor, comedian Russell Brand was found guilty last Thursday of one count of rape and three counts of sexual assault. all of which took place between 2004 and 2009. And as we record this podcast, he is back in court, waiting to be sentenced after spending the weekend in custody. So that sentence is going to come after we've stopped recording, but we don't really aim to bring you the news as it happens here.

2:39We're hopefully going to give you a better understanding of how rape and sexual assault trials work, because there's so much that we as the public don't really get to hear about what happens in court, partly because victims have a right to lifelong anonymity. But Jess, you are an expert. And can you even sort of count how many sexual assault cases you've been in court for and that you've sat through?

3:02Jess Phillips: So, yeah, I mean, I can't count actually how many trials that included sexual violence, direct rape trials, coercive and controlling trials that included sexual violence or sexual harassment and abuse cases that I have sat through in court, it must be racking up to hundreds, including, you know, as a victim of violence, stalking and other issues myself, I've had to sit through them as a victim as well. Can I ask just for people that don't know your background, because we've talked about you as a campaigner, but can you actually tell us what you did before you became an MP? So before I was an MP, I ran a women's aid organisation that also had a rape crisis organisation.

3:45Jess Phillips: So we ran advocacy support. So an independent sexual violence advisor is the name of the sort of advocate that victims are entitled to have with them in court. And I ran ISVA services for many years. And when I think about the cases that I have seen across, whether I've actually sat through the court case, you're talking thousands of cases. And often independent sexual violence advisors are used as the eyes in the court for governments to look at what is going right and wrong in the court. So, for example, there was lots of big cases where women's previous sexual history was being used in cases.

4:26Jess Phillips: And they found this out from what the ISVAs were reporting back. So I was one of those people. And I think that people have no idea, actually. for a start off lots of people would assume that the victims in this case had a lawyer who was representing them they absolutely don't a victim in a in a rape trial is not what we call party to the case it is the crown who is taking on russell brand in this case the victims themselves don't have individual lawyers so already you can see a power imbalance between russell brand who no doubt has a very very well-paid you know highly successful kc uh representing him and the women are evidence and i don't say that to to to be like you know to put them down these women are absolutely amazing in this case but victims who speak up in sexual violence trials are evidence that it's it's like having a CCTV footage and so they are tested as evidence now already I think to most people in the public they would think well this is her trial but it absolutely isn't her trial the four women involved in this case they were and are evidence in the trial and how we treat them as evidence rather than as people is the thing that has opened us up to the huge debates now that has led Andy Burnham into making the statements that he has.

5:51There is an issue here that's quite interesting that's changed quite recently when you talk about women not having a lawyer, which I think would shock many people listening to this. In Scotland the rules changed in the last wee while so that if the lawyer for the defendant has said that part of their defence is going to be bringing up the sexualised history of the, we would call them the victim. In Scottsdale, they're often called the complainer, which I think sends entirely the wrong signal, but there you go. There is an automatic independent legal representation has been brought in, which means that you are automatically entitled to a lawyer and it will be paid for by the state.

6:30So that's one of the changes we've brought.

6:32Jess Phillips: Well, look, that is good. But I mean, if Harriet were here, she and I could talk about the many meetings that she and I went to, to try and stop the instigation of previous sexual history. So previous sexual history. 100%. On this journey, of which it's funny that the public is now currently awakening to the idea. And if the Russell Brand trial has done nothing else, it has brought into the courtroom the public to see things that, I have to say, well, the public are shocked. I'm like, yep, that's totally regular. But Harriet and I worked on programmes to try and stop any mention of previous sexual history and you have to apply to a judge to include it.

7:12Jess Phillips: And it has to be so similar to the events that you are alleging that it can be put in. But for years, when it was guidance that you shouldn't do this, defence lawyers would bring in previous sexual history, basically calling victims a slag to discredit them. Just to give it a bit of, to sort of explain this a bit more in terms of what happens around the victims of sexual abuse or rape or assault when they're in court. I mean, during his closing address, Ian Winter, who is the barrister in the court representing Russell Brand, asked the jurors whether they could be sure that out of the many, many women Brand had slept with over a decade, he raped just three of them.

8:04How could they be sure of that? He also asked why Brand's youngest victim, who was anally raped at the comedian's home in 2009, aged 21, quote, didn't just roll over and kick out. He described another complainant who Brand was subsequently acquitted of raping as not a naive and wilting flower. Another barrister, Sarah Vine, who specialises in allegations of sexual defence, said it remained a decision for individual barristers to make, quote, tactical decisions which they consider the best for their clients' interests. And she said, in my experience, most barristers who deal with rape and offence cases will give rape myth arguments a very wide berth.

8:51Jess Phillips: Jess, you don't agree with that, do you? I sort of do agree with Sarah, but based on the rape myths as they were. So the rape myths used to be previous sexual history. And we had a huge campaign, again, found by independent sexual violence advisors that it was being used in case after case. And so there was a big push for that to be changed. Also, the way that a woman was dressed. And I've literally sat in a courtroom where a woman wearing a thong, like talking about her wearing a thong, meaning she was basically up for it, basically. So that over the years, as this conversation has gone on, rape myths have also developed.

9:29Jess Phillips: Now, it's my experience of working in violence against women and girls that for every door you shut on a perpetrator, they will find a new one to open. So yes, those rape myths, I have to say, like Ruth has said that in Scotland, they have attempted to try and stop the previous sexual history. So those rape myths, they are seen less, although it is only guidance in lots of these cases that you're not allowed to do. It's not mandatory. So the new rape myths come and it is, why didn't you tell anyone? Why didn't you scream? Why didn't you just roll over? Yeah, yeah. And those are myths as well. Yeah, and that's what Winter was obviously doing in the summary evidence.

10:12And actually, for the victims to come forward, to have to go through cross-examination and then basically be blamed. He was convicted of that anal rape, by the way. And I was really, actually felt physically quite sick when I read the evidence, which was he put this woman's name in his phone with the letter T, which he said stood for Tart. And he put alongside it initials AP, which he said, this is Brand said, stood for anal play. The prosecution was presented with medical, clinical and witness testimony, including accounts the victim screened in plain bled and asked for him to stop, which led the jury to convict Brand of the anal rape charge.

10:57But the victim sitting there in the court being, you know, having to listen to, well, I don't know if the victim was in the court at the time of the summer out, but the KC saying, oh, why didn't she just fight him off?

11:09Jess Phillips: So I could come up with a million reasons why she didn't scream out. I mean, the first and foremost reason why rape victims don't is because there is disassociation. You can essentially like become that you are somewhere else because you're in a traumatic situation. So that's one. The other is, is you think you might die. You're with a man who is committing a violent act against you. And so you are playing the percentages of how you will get out of this alive. Can I ask you just to, in terms of, we've just talked about the rape myths, the victim blaming, the fact that the court is stacked in a way that the defendant has a barrister arguing their case and the victims are there to give evidence and be cross-examined.

11:58Jess Phillips: Also, the perpetrator doesn't have to give evidence. The witness can be called. The victims have to if they are told, whereas he can just say, no, I don't want to. he doesn't want to he doesn't have to so that's some of the context that is really being brought out actually with this trial because it's such a national news story and it's so in the spotlight it also has brought the question of how rape trials are conducted under more scrutiny and the prime minister andy burnham said over the weekend he was now looking at reforming how cases are conducting. He said the government needs to, quote, constantly look at how trials are conducted.

12:37He said he wanted to make sure that rate trials do not leave the woman feeling like she is on trial in court and that we need to get the conviction rate up and encourage more women to come forward. I mean, Jess, you have been banging this drum for many years. Do you think that this might be a moment that might bring about change or do you feel it's more he's just saying this stuff and

13:04Jess Phillips: nothing will change what's your view I do think it will bring about change um I think that um I think that it's one of those moments and they come along um and I'm really sorry to the women who have to pay the sort of ultimate price for cases that come along and capture the public interest. So Sarah Everard, I remember sitting opposite Sarah Everard's parents in tears saying, your daughter has changed more than almost anybody. And I wish that you hadn't had to make this sacrifice. But let me tell you, she will matter for the rest of time. She will have changed things. And I think in this case, this will absolutely change things.

13:51Jess Phillips: I think we will see the government over the next few weeks looking at exactly what the practice directions can be put forward in court what the judge can and can't intervene in what experts might be needed in a courtroom so actually you should like as standard really have an evidence from somebody who says well this is the reason why victims don't do this this is like you know that that sort of evidence from experts as well being instigated. But I also think that they will be looking at how we can like put rocket boosters up some of the things that they've said they're going to do around having specialist rate courts expediting look the the the Attorney General Ellie Reeves is a woman who I work very very closely with long before we were in government to make the policy.

14:41Jess Phillips: So in the UK now, for the first time, rape victims, adult rape victims from report will have access to lawyers. And that's never existed before. And that was a policy that myself and Ellie Reeves wrote that the government is putting in place. We are trying constantly to equalise the balance. And I just think it's going to get some rocket boosters up, some stuff that they've already said that they were going to do. Yeah, so I think there is an issue about how you run rape trials and sexual offences trials. I think there's also an upstream issue about how many of them even get to trial. And the House of Lords has done a bit of looking at this and has found that when you look at all of the rapes that happen, somewhere between only one and four percent ever make it to the inside of a courtroom.

15:32Jess Phillips: Obviously, while I was a minister, this was a thing that I became obsessed with, the idea that people would get into a courtroom at all. And charging rates were woeful. And so looking at how many more cases could be pushed through as a Home Office minister, it was a policing issue. There is a system that was started by the Conservative Party, actually, to give them their dues called Operation Ceteria, which is all about how police should stop investigating the credibility of the victim and start looking at patterns and multiple complaints, for example, about the perpetrators. perpetrators. And this has, I mean, look, it's early days, we are now starting to see the real benefit in the increasing number of rape charges and sexual violence charges being taken.

16:18Jess Phillips: And it is going up and up every single year at the moment. And that is down to Operation Soteria. So now we have to try and do whatever we can on the back of this case to make it so that this case doesn't put people off. It actually encourages more people to come forward. And so I do think we need to have a real look at the court. Jess, just to update, following what I said, the PM said at the weekend, and he's been asked, are the government doing enough in the wake of this trial and what has emerged around the treatment of victims? And he said, There is so much that needs to be done. We have to bring it forward.

17:01And obviously today, everybody will be thinking about the women who have the courage to come forward. Their bravery will, I believe, change the system more broadly. And we will be relentless in making whatever improvements we can. But there's no complacency here. There's a lot more that needs to change. I mean, what would be your ask or your like, if you like, this is the thing you need to do, like the first thing you need to do?

17:25Jess Phillips: The very first thing they need to do is they need to shorten the amount of time that victims are waiting. I took a case with a young woman. She was 12 when she was abused and she was 21 by the time she saw the inside of a courtroom. That caused that's a life sentence for her. It is arrested development. And look, it's going to take money. That is the reality. We need to get the specialist rape courts up and running immediately. They need to then ensure that there is enough resource going into the legal support and advocacy support for the victims of those crimes. But look, this isn't just an issue in rape cases.

18:04Jess Phillips: I was in a trial about two weeks ago in the Midlands. I was in a courtroom with a woman who had been multiply strangled by her ex-partner. In this, I watched a defence barrister or defence lawyer, actually, and probably not a barrister because it was in the magistrate's court. I watched him say to the woman, well, why did you, like, you know, message him afterwards sort of thing? And, like, these things that are, like, well, because, like, she owned a house with him. Do you know what I mean? Like, you know, like, you don't get to walk away from the logistics of your life because you're in a courtroom trial.

18:41Jess Phillips: I mean, look, Beth, I can't explain to you enough how, like, if I was sat in front of Andy Burnham, is that I feel like every woman who comes forward to me in my constituency, I have to attend court with her to make sure everyone behaves. Because I feel like if I'm in the courtroom, people will have to behave. I literally go like a hawk. I go and sit in courtrooms like a hawk. And, you know, I'm not, as I used to say about childcare and my mother-in-law, I'm not a solution for the nation. There need to be observers who are properly making sure that this doesn't happen. Yeah, I mean, I think the thing about all of that, Jess, as you were saying, is I don't think people fully understand the way in which the legal system is stacked so that if you have resource, you can really load the system.

19:27Jess Phillips: Yes. What has become really common in the last sort of decade is to try and silence women from speaking about it. Just ordinary women saying on Facebook, I was a victim of domestic abuse, not putting the name on it or saying, oh, you know, keep away. Watch out for this fella sort of thing. They are like we are seeing a really chilling effect of what they, you know, you call slap legal cases where people are trying to use the law to continue to control and silence victims of this crime. So that I see a lot. I mean, a woman sent to me a legal letter that she'd got from her husband because of something that had been said on Facebook about his domestic.

20:12Jess Phillips: She didn't mention his name, but said, you know, that she had been a victim of domestic abuse. So why didn't she come forward? Because when she did, she got sent a letter that Fred scared the bejesus out of her and that she'd be liable for costs. And it's why I suppose, Beth, I would come to you on this and the free speech journalism being an important part of our democracy is so important in this story because there's no way those women would have spoken out publicly without the teams of legal advisors that they were provided with as covered by Channel 4 in dispatches and by the Times. like that that would have given them the final moment of comfort that they were not going to lose their homes their parents homes in some cases like that there is a really and so many times I've tried to get justice for women over the years and not been able to and so I thought journalism is the only answer so yeah basically what happens is journalism in that sense and in the case of Brand, it was journalists working with victims, getting their testimony, putting together a case, fighting it through the cause to publish it and served endless, endless injunctions.

21:31And there's actually a current one that's going at the moment where a very, very high profile individual has served an injunction against a number of different newspapers on the basis that this individual has tried to take their own life and is at suicide risk. And that is a real test case as to where does the judge land in terms of whether it's in the public interest or, you know, the right to life. It is a heck of a test case, that one, because if the judge says, if anybody that says, I'm at risk of taking my own life if you make this public. I mean, that's going to be everyone's go-to defence from now on.

22:10I mean, the Pandora's box of that one.

22:13Jess Phillips: Can I just say, it already is. I mean, look, the court has currently ruled on the case of that injunction that the newspapers can publish, but it's whether that case will be appealed. We will hear this afternoon as we're recording on Monday. So by the time you're listening to the podcast, the name of that individual might well be in the public domain. I want to bring you back because you were absolutely right to say that this case against Russell Brand, you know, without that reassurance that Channel 4 and Times lawyers were going to help the victims that came forward, probably wouldn't have got to where it is.

22:46Jess Phillips: Yeah, look, it's not easy. And if I could wallpaper my walls with legal letters that get sent to me over the years for speaking up. It is frightening. Like when you're doing a story and you get a legal letter and you get threatened, what you need in an organisation is a load of brilliant lawyers behind you ready to back you up. And that's what the power of the media is that, you know, I used to work at the Times, they've got an amazing legal team and then they stand behind you and then you have the courage to go forward. But you need to, it's the sort of collective endeavour, isn't it, that you're talking about, where the victims team up with journalists and politicians to get it over the line.

23:30So you're not, it's not so much David and Goliath in that sense.

23:35Jess Phillips: I mean, I would rarely use privilege unless I already had like media people, newspapers that I had spoken to where I know that their legal teams have properly checked over all the cases. The Russell Brand story is an absolute credit to journalists at dispatches and at the Times. And yeah, I think we need to come back to this as well, because there have been some absolute heroes in this. I think there are some people who really have to look at themselves because there are issues about Russell Brand and the fact that he wasn't just sexually incontinent, that he was sexually predatory, that we're doing the round for years.

24:13and he was still getting employed. He was getting gigs. He was getting put in studios. He was getting paid a lot of money. He was being feted. And I think there are a lot of people that need to look really bloody hard at themselves in this case. So where I feel encouraged here is that the japes and jokes that were being made 15 years ago, they just wouldn't be acceptable today. And that's regardless of whether Russell Brand ended up at trial or not. So you kind of think, but it's also a reminder of how they wouldn't well it's a reminder wouldn't be allowed in the mainstream yes but it's interesting isn't it that culturally what was kind of mainstream acceptable as bants is no longer acceptable and to me that is some form of progress in that that isn't okay

25:00Jess Phillips: yeah definitely definitely there has been progress like it is really easy for people like me to say this shit again, like, you know, and to start to be really, really, really tired. But you're right, Beth, there has been progress. And it has usually been on the back of these incredible women, and frankly, a changing public opinion, like culture eats policy for breakfast always. And policy, when you're talking about, like the most patriarchal organizations in the world, Parliament, the courts and the police like it's going to take we've got 700 years of civilization to undo or something so um like it's going to take time for some of those systems to catch up well look on that note we're gonna have to wrap today that because we've run out of time um but i should say if you'd like more details on how the case against brand was built his sentencing and what happened in court.

25:55There is a Sky podcast, it's called Russell Brand on trial and that has followed every twist and turn of this case if you want to listen to more.

26:07Jess Phillips: We'll be back on Friday for our regular episode and in the meantime we would love to hear from you. You can post on our brand new members forum or send a message to the burner phone, that's on 07934 200 444. And just a quick reminder there are still a couple of remaining tickets but only a couple for the upcoming live show at cadogan hall on the 26th of november in london if you'd like to come along the link is in the show notes come along to the show it's going to be a good laugh and that is it from i'll say goodbye goodbye goodbye

26:43people don't show up to vote so i'm asking them to pretend i'm on the ballot i'm thrilled he's

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