Jerry Hayes could have said: Grayling’s reforms bode ill for rape victims

Let me be clear, this is not an apology for what have been described elsewhere as Jerry Hayes “rape apologist” comments on BBC Question Time yesterday. Jerry has already had his own right of reply.

This is an attempt to:

1. Explain what I think he might have meant when he said what he did. As a barrister’s wife I have more insight into lawyers’ speech and psyche than most non-legal people.
2. Make clear what he failed to: that the proposals contained in the Ministry of Justice (MOJ) consultation paper Transforming legal aid are very, very bad news for victims of rape and sexual assault. That everyone who wants to improve the way our justice system deals with ALL victims of crime should sign the Save UK Justice petition.

For those who are justifiably angry and / or upset about the comments in question, I would respectfully ask that you try to set that aside for a few moments to consider the bigger picture.

If you’ve had enough legalease to last a lifetime and aren’t interested in what will no doubt be described as weasel words, jump straight to what I would have said about rape and the MOJ proposals if I’d been in Jerry’s place on Question Time.

Legalease

Lawyers don’t speak and think in the same way as non-legal people. In the main this is not because they are sexist, rape apologists, idiots, buffoons or any of the other insults that have been hurled in indignation these last 24 hours. Most lawyers, like most people, are decent human beings.  They are not a breed apart. However, they have been trained in a certain way, and when at work they speak in a certain way.

When my husband comes in after a day in court he will often begin by speaking to me in his “court voice”. That is, far. too. loud. Like a mother to an exuberant child I remind him that he’s not in court now and ask him to use his “kitchen voice”.

It goes further. He will never, ever speak of “victims”, not until after the defendant has been found guilty. Before that the person that you and I would call “the victim”, is “the complainant”. This still drives me up the wall. Despite my best efforts to give an objective, non-sensational, take on the issues covered in this blog I am naturally of the We Believe You camp when it comes to sex crime. This stance presupposes that everyone who claims to have been raped and sexually assaulted, has been. I understand that statistics show that is largely the case. But the relatively few instances of false accusation of rape are given a disproportionate amount of attention by the media.  And therein lies part the problem. It is very difficult for non-legal people to be dispassionate about these issues. If we are to maintain that people should be innocent until proven guilty (which as we have seen in Myth #2 – the scumbag criminals is not really the case) why should we believe one person over another, before the evidence has been tested in court?

On evidence

Friends still ask my husband’s opinion on this or that case that is being reported in the media. This is despite knowing the form. He will never ever be drawn to comment until after the verdict. You can see the disappointment on their faces. They were thinking “oh Mr Barrister’s Wife is coming over this evening, we can ask him what he makes of …”. They ask the question and he will say “I can’t comment, I haven’t’ seen any of the evidence and I’ve not been in court to witness the proceedings.”  And that will be the end of what could have been an engaging conversation.

Rape and sexual assault cases are some of the most difficult to prosecute AND defend. My husband has been known to say “give me a cold blooded murder any day”. Not because he relishes the idea of some poor person being murdered, of course he doesn’t. But because it is much more straightforward. Unless there is video or audio recordings of the event, the evidence that someone has been murdered is, often, much more obvious than the evidence that someone has been raped or sexually assaulted.

Is it a crime?

On Question Time last night Jerry Hayes made reference to rape statistics and appeared to assert that if there is no conviction there is no crime. Hard as it is, that is how lawyers often have to think about things, when they are wearing their lawyer hat. What puzzles me is why he didn’t have the sense to put his politician’s hat on for such an emotive issue, and pick his words accordingly. Still, what is done is done.

What Jerry Hayes didn’t say is that lawyers know that the jury’s verdict doesn’t change the way the victim (they would still say “complainant”) feels about an event. The jury may find a person accused of rape guilty or not guilty. Guilty means, in the eyes of the law and of lawyers, that a crime took place. Not guilty (or not even reported, or charged, or case dropped due to lack of evidence) doesn’t mean it didn’t happen. It simply means that it couldn’t be proved “beyond all reasonable doubt” in a court of law. This is what Jerry Hayes failed to explain on BBCQT but has since addressed in his blog.

Regular readers will know that we don’t have children. Like all couples we have “what if?” conversations. There was one where I asked “What if we had a daughter and, heaven forefend, she was raped or sexually assaulted, what would you do?”. Like a lot of guys my husband’s initial response was that he would find the f*&$er and shoot him slow dead. The more considered response is that he would try everything in his power to persuade her not to pursue the matter. Not to go to trial. If after all he had to say she still wanted to go through with it he would know that she was properly prepared, and he would be there to support her. Because, having prosecuted AND defended people on a rape charge, he has some small idea of what the victims go through. Of course he doesn’t know it all, he is not the victim. And victims are individuals. But he has more of an idea than most non-legal people. He knows the levels which lawyers have to go to secure a conviction or an acquittal. In a court of law it is simply not enough to say “we believe you”. This is not the fault of the lawyers, it is the fault of the law itself. Parliament makes the law.

There is one particular case that I can’t tell you about in my Exhibits “series”, because the details mean it is impossible to anonymise. Thought, or mention, of this case and of the rape victim’s testimony, the words she said in court, still brings my husband to tears years later. I’m not a betting woman but I would wager that for all his braggadocio or exuberance or whatever you want to call it yesterday, there are cases that will do the same to Jerry Hayes and every other criminal lawyer in the land.

Shoulda, woulda, coulda

After his ill advised comments Jerry Hayes managed to get in a few words on the proposals contained in the Ministry of Justice (MOJ) consultation paper Transforming legal aid  aka the planned privatisation, or Stobarstardisation of the justice system. Unfortunately, by the time he made what was arguably the most important point of the night, everyone who had previously been glued to the TV had taken to their phones, tablets and computers to castigate him on Twitter and other forums.

Question Time was the first opportunity for Save UK Justice camp to have the MOJ’s proposals debated in public. Chris Grayling has refused to face lawyers to discuss the proposals, preferring instead to send nervous lackeys to a series of “roadshows” around the country. Grayling’s recent appearances on both BBC Radio4’s Any Questions and Today programme have focused on prisons and the probation service and have been devoid of any reference to the planned privatisation-by-stealth of the justice system. It is almost as if there is some sort of tacit agreement not to mention what will be the biggest, non reversible shake up to our justice system for 800 years.

Jerry Hayes, criminal barrister and ex-politician was handed a golden opportunity to inform the public about these proposals ,explain why they were bad news, and publicise the Save UK Justice petition.  He made a rotten fist of it. So bad was the perception of his performance that some tweeps were saying they would rather be represented by G4S than Jerry Hayes. This is not something I would recommend personally.

Here is what I would have said about rape and the proposals to “transform” the justice system if I’d have been in Jerry Hayes’ place on Question Time last night:

• If these proposals are implemented, more rapists will “get away with it” – see the baddies section of Myth #2 – the scumbag criminals
• If these proposals are implemented more innocent people, and people who have been falsely accused, will be found guilty – see Exhibit A – the “child pornographer” and Exhibit B – the “murderer”
• If these proposals are implemented, rape victims will have even more to contend with in the courtroom. The reduction in quality that will be an inevitable consequence of these proposals means that they will be cross examined by inexperienced defence lawyers. These lawyers will ask even more seemingly irrelevant, traumatising and triggering questions thereby prolonging the victim’s suffering.

Help save our justice system, such as it is

As things stand the proposed changes to the criminal justice system are going to be brought in under secondary legislation, without any debate. The Save UK Justice e-petition needs 100 000 people to sign it in order for there to be a debate in parliament.

This blog was born out of a desire to correct some of the misinformation about our criminal justice system that is fed to the public by politicians and the media.  I hoped that a different perspective would help the public to recognise the MOJ’s proposals for what they are: a callous attempt to remove access to justice from the most vulnerable people in our society, once and for all.

I understand that for some of you the idea of signing the petition, and thereby pinning your colours to the same mast as Jerry Hayes, will be abhorrent. But I would urge you to remember that he is just one man. This issue is so much bigger than one dreadful performance on a TV show.

If the MOJ proposals go through things will be much worse for ALL crime victims in future. Sadiq Kahn said they could lead to “state sponsored miscarriages of justice”. We must crush these proposals and preserve our justice system from privatisation and all the horrors that will bring.

If we win we can hope for a future where police, politicians, lawyers and judges can continue all the good work that has already been done, slowly, very slowly, to improve the way our justice system serves our victims of rape and sexual assault. If we lose we will be remembered forever as the generation that sold our justice system to the lowest bidder.

Please consider signing the Save UK Justice petition.

Tags: BBC, Jerry Hayes, Legal aid, Question Time, Rape, Sexual assault