(STILL) INSIDE A RAPE TRIAL: What really happens at court (4/4)

script for Rape on Trial/Ep 2: Tariq's Trial (blog post 4/4)

Rape on Trial is a legal documentary podcast using real-life, fully anonymised cases to critically examine the investigation and prosecution of rape and serious sexual offences in the criminal justice system in England & Wales. 

Topics covered in this episode: agreed facts; the defence case; the defendant's evidence-in-chief; cross-examination of the defendant; judge's directions; split directions; prosecuting counsel's closing speech; defence counsel's closing speech; judge's summary of the evidence and final directions; evidential reasoning and the operation of rape myths and prejudiced stereotypes and assumptions; the jury verdict.

Keywords: criminal law; criminal evidence and procedure; criminal justice; trial procedure; courtroom advocacy; adversarial legal system; comparative law and procedure; common law legal system; legal case study; criminology; forensic linguistics; forensic psychology.

Open Educational Resource - Legal English Listening Practice - Legal English Comprehension Practice - Legal English Vocabulary - Legal English in Real Court Proceedings: Criminal Trial – Academic English - Language of Law - Legal Reasoning - Evidential Reasoning - Forensic Reasoning – Court Translator Practice

Content warning

This podcast explores the workings of the criminal justice system, including the investigation and prosecution of serious offences involving sexual and physical violence. 

Episodes may contain detailed and sometimes graphic accounts drawn directly from case files, witness testimony, and court proceedings, including those involving adult and child victims. 

Listener discretion is advised.

This is the continuation of the script from ep 02 of Rape on Trial. Click here to listen to the episode. 

Prosecuting counsel’s closing speech

At ten to two, court’s back from lunch and Mr Neil gives the prosecution’s closing speech.

It’s half an hour long. I’m going to summarise it here.

The prosecutor begins by acknowledging that real life rarely fits into tidy patterns. While it would be convenient to say Tariq simply lured Ruby to his office under completely false pretences, the truth is more nuanced. Yes, he misled her about paid employment and was clearly drawn to her WhatsApp photos, but as Mr. Neil puts it, ‘it would be crass to suggest a cold premeditated rape was his intention from the off.’

He addresses what he calls ‘a loose end for the Crown’—that Ruby didn't leave when Tariq went to the post office. But, he says, she was a youngster, looking for a job and it would have been impolite to leave when she had misgivings.

Mr. Neil then turns to what he says is the only contemporaneous evidence of Ruby's attitude while in Tariq's office—the video she sent to her friend with the message ‘what the fuck? This is the office, guys!’ This, he says, ‘does not demonstrate erotic interest but contempt for his office and his business.’

Next, Mr Neil talks about what he describes as the psychology of rape; not just the obvious power and domination aspects, but subtler attitudes. He highlights Tariq's tendency to treat Ruby as a ‘commodity’ rather than a person, that he thought she was expecting money from him in return for the sexual encounter. That he’d paid her. 

Mr. Neil reminds the jury of Tariq's concern for his prayer mat after ejaculating on Ruby: that Tariq ‘valued the mat more than her’.

He compares Ruby's testimony with Tariq's. Ruby, he says, was restrained, consistent, and didn't embellish details. She wouldn't even speculate on how long the penetration lasted, he points out. In contrast, he says, Tariq's testimony was ‘replete with instances of irrationality, contradictions, and self-pity.’

Mr Neil then turns to the question of ‘what possible motive would Ruby have for fabrication?’

‘The suggestion that she falsely claimed rape because she was embarrassed about consensual sex makes no logical sense’, he says, ‘when reporting rape would involve even more public scrutiny’.

He concludes solemnly: ‘I said at the start of these proceedings, that the Crown have to prove the essential ingredients of the two complaints on that indictment separately so that you are sure of them. I would respectfully suggest,’ he says, ‘that we have done that in spades, in an overwhelming case and I invite you to convict Tariq on both counts.’

Next, it’s the defence closing.

Defence counsel’s closing speech

Where Mr. Neil was florid and philosophical, Miss Roberts is pragmatic and direct.

She begins by reminding the jury of the fundamental principle at the core of the criminal process: ‘It's for the prosecution to prove the case against him. That's the approach you have to take in any criminal trial.’ She restates the point: ‘Tariq doesn't have to prove he's innocent,’ she says.

She also highlights that Tariq, as the defendant, enjoys the right to silence: he could have remained silent in his police interview; he could have stayed in the dock without testifying. He didn’t. He chose to give his account.

Miss Roberts quickly establishes the central issues: ‘on count one, rape’, she says, ‘the defence position is straightforward. Sexual intercourse did take place... But it was with consent. Or he reasonably believed she was consenting’.

‘On count two, false imprisonment, the question is whether Tariq prevented Ruby from leaving or whether she went willingly, as you saw in the footage.’

Then she addresses the emotional weight of trying rape cases: ‘When the indictment was read out to you and you heard the word rape, your heart may have skipped a beat’ she says.

She acknowledges jurors might feel sympathy for Ruby, ‘a young complainant, 18 at the time.’  They might have sympathy for Tariq, or, she says, they might have taken an instant dislike to him based on the charges.

‘These are emotional reactions,’ she says. She asks them to put those emotions to one side. ‘You have taken an oath to try this case on the evidence’, she says, ‘the evidence you’ve heard in this courtroom’.

‘So what of that evidence? The principal evidence’, she says, ‘is that of Ruby.’

They’ve heard from other witnesses who support her complaint, but only two people were there. Ruby and Tariq.

Miss Roberts then pivots to what she portrays as ‘problems, reasons for pause’, in Ruby's account.

Despite Ruby's claimed misgivings and ‘alarm flags’, she still went to the office. When Tariq left her alone, ‘she could have left if she wanted to... but she stayed. Rather than leave, Ruby recorded a video of the office and sent it to friends.’

She refers to Ruby's physical attributes compared to Tariq's—the point he had raised in cross examination. ‘He's not a tall man’, says Miss Roberts, ‘he's not a big man... she was a stronger lady than him and if he had pinned her to the wall, she could have given him a swift kick in some intimate region and sent him to hospital.’

She points to the timing and location: ‘weekday, 10 o'clock, busy morning, other people in this office block. If Tariq's intention was to assault Ruby’, she says, ‘he could have just as easily... picked a Saturday or a Sunday. Less people about. No one in the office to hear her screams.’

She suggests even Tariq's job ad was inconsistent with criminal intent: ‘The advert is using his own telephone number, easy to trace... Hardly sophisticated. Hardly pre-planned.’

She turns then to Ruby's behaviour after leaving the office: ‘She doesn't flee’, she says, ‘she continues to walk with him... Doesn't stop anybody else and ask for help. Then Ruby goes to her friend's... to a nail bar. To dinner.’

She describes Ruby's 999 call as ‘devoid of emotion, of upset, of tears,’ implying this lack of audible distress somehow undermines her account, or at least contradicts or complicates the prosecution’s evidence of Ruby’s distress.

As an aside, I want to remind you that, of course, the jury only heard about five minutes of this recording. The audio went kaput. And then Mr Neil reconsidered its being played in full.

The jury, then, has only been given the transcript which means they’re in no position to assess whether Ruby was or wasn’t devoid of emotion, upset or tears, when she rang the police. Anyway, let’s get back to Miss Roberts’s closing.

She’s reminding the jury of Tariq's good character. ‘40-plus years of age, he has no previous convictions’, she says, ‘and his consistent account that Ruby only said "stop" once his penis was inside her, and that when she said stop, that's what he did.’

‘Finally’, say Miss Roberts, ‘I’m not going to trespass or insult you by telling you what to do, if you should convict or acquit, that’s a matter for you. You look at the evidence and what you, collectively, as a jury bring to a case is common sense. That’s the point of a jury. You look at the evidence and then you decide, using your common sense.

If you're sure, you convict. If you're unsure and left scratching at your head, then, in Scotland, she says, there’s an alternative verdict of not proven. We don’t have that luxury  here. It’s either guilty or not guilty. If you're not sure, then you should reflect that in your verdicts in favour of the defendant.’

It’s quarter to three.

Judge’s summing up

No break in proceedings, we’re straight on to the judge’s summing up of the evidence.

Judges summing up is precisely what it sounds like: it’s the judge providing a summing up of the case and the evidence. It serves several purposes, perhaps the chief one of which is that, if the judge is taking notes during the trial, the jury is free to observe the evidence rather than try and scribble everything down themselves.

The jury can’t very well assess the demeanour of a witness, and what, if anything, it might tell them about the credibility of that witness or the reliability of their evidence if they’re busy making copious notes.

Judge’s summing up isn’t about rehashing every detail—It’s about reminding the jury of the key points and main evidential themes, highlighting disputed facts, credibility assessments, and any agreed evidence.

The judge’s summing up often mirrors the route to verdict, helping the jury to mentally organise the evidence in relation to each count.

The judge presents the evidence even-handedly, avoiding any commentary that could sway the jury. If in the course of their summing up, the judge does express a view, the jury is free to disregard it if they disagree—and they are told this, explicitly, by the judge before the summing up is given.

You’ve just heard all the evidence. I’m not going to go over it again now, save to say, her Honour covers the both the prosecution’s case and the evidence it called as well as the defence case and all their evidence. She tells the jury, plainly, that Ruby’s account is diametrically opposed to Tariq’s, that they can’t both be telling the truth and that the jury is going to have to make a judgement call between those two accounts. 

She directly links evidence to the route to verdict at relevant points. She tells them, when you’re assessing this, consider that, if you accept this, consider that, and so on.

Then she gives the jury its final direction: ‘Members of the jury’, she tells them, ‘your verdict must be unanimous. That means all of you must agree. You should not concern yourselves with the possibility of a majority verdict. That is not acceptable unless and until I give you a further direction. You must strive to reach a verdict on which you all agree.’

The jury is then put in charge of the defendant and an usher takes them off to the jury room to begin their deliberations.

It’s quarter to four. 

While we wait

So here we're back where we started. Me, sitting in an eerily quiet court 1 at about 4.20-25 on a Friday afternoon. The jury’s out and, for whatever reason, I’m still here, sitting in the public gallery, going over my trial notes and dealing with emails. 

Then there’s the sudden flurry of activity because the jury’s coming back. Not with a question. With its verdict. Moments after the judge has entered the court and taken her seat, the jury is filtering back into court.

And all I can think is, oh crap.

Why?

Well, because I don’t think Tariq is guilty. I’m sure he’s guilty. No doubt in my mind, reasonable or otherwise. He’s guilty. On both counts.

Maybe, you don’t agree. Maybe, you’re about to tell me that this is a case of one person’s word against another’s, how could I possibly be sure?

Well, a lot of criminal trials can be reduced down to one person’s word against another’s. Not just rape trials. Most criminal trials. It was him; it wasn’t me. He stole this; no, you gave it to me. He hit me; I never touched him, or, he hit me first. He did that on purpose; no, I did that by accident.

In any event, there’s nothing wrong with one person’s word against another’s. Subject to a handful of statutory exceptions—and rape is not one of those exceptions, neither is false imprisonment, the exceptions relate to certain perjury prosecutions, or treason—but aside from these very limited exceptions, there is no corroboration rule in England & Wales; one person’s word is enough.

So long as the jury find that person’s word to be credible and reliable, if that witness’s evidence is sufficient to persuade the jury so that they are sure of the defendant’s guilt, then one person’s word is all you need.

And having heard all of the evidence, I’m sure Ruby's a credible witness who’s given an honest and accurate—a reliable—account of what happened in that office.

I’m sure sex took place—although that was never disputed; I’m sure Ruby wasn’t consenting; and I’m sure Tariq didn’t—and couldn’t possibly have—reasonably believed she was consenting.

I’m also sure he prevented her from leaving that office. And the money he gave her? I think that was a vile and incredibly telling act that reflects Tariq’s attitude to women and added a cruel insult to Ruby’s already grotesque injury. It makes me even surer!

Guilty as charged on both counts as far as I’m concerned.

But what about the delayed report? Well, what about it? Most rape reports are delayed. Some victims take years to report. So what? And her mum told her, don’t do anything tonight; report it tomorrow.

So she took the money from Tariq? Went to a nail bar? And a restaurant? Again, so what? Stunned, shocked and trying to process what’s just happened, it looks like she’s gone on autopilot to me.

She also wept on the bus, bought clean underwear, cried at the pharmacist’s while she got the morning after pill, and then went to a friend’s and immediately showered. Everyone who spoke to Ruby that day knew there was something wrong; people who knew her and people who didn’t. Her mum, her friends, the ticket inspector on the bus, the lady at the pharmacy.

There were no gotcha moments in cross examination. No trip ups. No big revelations. Miss Roberts didn’t ambush Ruby or attack her character and credibility. She put the defence case to Ruby, as she should—giving Ruby the opportunity to accept or reject Tariq’s version of events. Which Ruby did. She rejected Tariq’s version of events consistently, persistently, resolutely and, as far as I’m concerned, resoundingly.

Compared with Tariq’s almost three-hour long cross-examination by prosecuting counsel this morning, Ruby’s 49 minutes in cross examination was pretty unremarkable: almost pedestrian.

No hostile, deliberately humiliating questions from a scurrilous barrister trying to tie Ruby up in evidential knots. No hectoring. No mocking. No overt appeals to crass rape myths: no questions about what she was wearing, no underwear being exhibited and handed around the courtroom, no reference to Ruby’s previous sexual experience, no inquiries into her mental health, or whether she’s applied for criminal injuries compensation. No implying that Ruby’s a prostitute—even though that’s what Tariq seemed to be insinuating in his evidence. And nothing whatsoever made of the implicit fact that Ruby left Tariq’s office uninjured. Why do I say implicit? Well, because if there was evidence of any injuries, you can be sure Mr Neil would have introduced it. It’s absence in the evidence suggests its absence in reality.

Miss Roberts’s cross examination of Ruby was direct, but it was also professional and courteous. Was Ruby distressed during cross examination? Yes. She was. Of course she was. She’s being asked questions about a traumatic experience, her own sexual violation! And she’s being asked those questions by the barrister representing the man who did this to her, Tariq. Tariq who wants the jury to believe that what Ruby says happened didn’t happen, or at least wants the jury to have doubts about whether it did.

Cross examination will doubtless have been hard for Ruby, given what she’s talking about and given the purpose of cross examination itself. But there was no showboating. No theatrics. No, evidential traps or ambushes. In fact, nearly a full half of Ruby’s cross examination was, well, mundane to the point of being evidentially pointless. I still have no idea what bearing the position of the office door in relation to the stairs had on anything.

In contrast, Tariq’s performance on the witness stand was disastrous: He sobbed, he wailed, he got angry, he laughed, and he derided. If Tariq was trying to win the jury’s hearts and minds, he did himself no favours.

And, he did another thing that, in my experience, doesn’t tend to persuade juries either.

He over-denied; he denied Ruby’s account to point of his own account being utterly incredible. First, he over-egged the ‘consent’ pudding. Tariq’s claims that, when it comes to consent, he goes above and beyond, that he’s trained in consent and that he sought Ruby’s express agreement to each and every touch. It just doesn’t wash. It might be what university consent classes model as consensual sex, but it’s not what consensual sex tends to look like in real life, is it?

And, second, Tariq tried to paint the complainant as seductive temptress; according to Tariq, Ruby wasn’t just consenting. She initiated the whole encounter. But the idea that this 40-odd year-old married man has been seduced by a slow dancing 18 year old college student expecting money for sex at a job interview, sex she’s then regretted, well, do you buy it? I don’t.

Another reason I’m so confident of Tariq’s guilt?

Miss Roberts’ ‘Hail Mary’ closing speech.

By and large, there were no overt, crass appeals to common rape myths in Miss Roberts’ cross examination of Ruby. And nothing whatsoever was made of the implicit fact that Ruby left Tariq’s office uninjured, which, again, we’re told impacts negatively on juries. No injuries? No conviction.

Yes, we got the ‘why didn’t you leave?’ ‘why did you even go?’ questions during cross examination. Miss Roberts also tapped into reported expectations of how genuine victims react when she asked Ruby about what she had and hadn’t done immediately after the incident:  she didn’t raise the alarm when she got out on to the street. She didn’t report it straight away. Instead, she went to a nail bar! She went out for dinner!

But, in Miss Roberts’ closing, these appeals to so called rape myths and misconceptions were far less subtle than in cross.

We still didn’t get any of the appeals to rape myths we’re told are routine in rape cases. No ‘ah, but, members of the jury, did you see what she was wearing? What did she expect?’ No, ‘well, Ruby’s taken money for sex so you can’t believe a word she says.’

But we did get ‘he’s not a big man’ and ‘why didn’t she give him a swift kick him in an intimate region?’ The old ‘she didn’t resist so she must have consented, or at least it’s reasonable to believe that she was consenting’ chestnut.

So why is the same barrister who spent 50 minutes conducting a professional, courteous—and remarkably unremarkable—cross-examination, why has that same barrister now concluded her case by, basically, asking the jury why Ruby didn't just kick him in the balls?

What changed?

Tariq's catastrophic performance in the witness box, that’s what.

Because as much as we are told that rape myths and stereotypical beliefs like this take centre stage in rape trials, you don’t generally see them raised in practice. It’s not that it never happens. It does. We’ve just seen it happen. But it’s not routine. Not in cross examination, and not in closing speeches.

A routine defence closing focuses on the standard of proof and the jury’s need to be sure.

If counsel ventures into rape myth territory, especially during closing like Miss Roberts did here, I’ve noticed they only tend to do so in the evidentially strongest cases.

Hence my calling it a Hail Mary defence. It’s a desperate, last ditch, nothing to lose, throw anything and everything we possibly can at this because the prosecution’s case is compelling, if not overwhelming.

That’s when you’ll see rape myths explicitly brought into play. When the prosecution’s case is strong.

Something else I’ve noticed. As a defence strategy, Hail Mary defences don’t tend to pay off.

By my reckoning, based on my experience in the courts, this jury should be convicting.

So why am I suddenly panic stricken by this jury’s imminent verdict?

Predicting the outcome on the mainstream’s ‘rape myths’ narrative

Well, several reasons but, chiefly, because it’s so quick! It was only about 35-40 minutes after they’d retired that we got word the jury were coming back with the verdict. I haven’t seen that before. Not in a rape case.

It doesn’t feel like that’s a good sign.

And, at its core, this is a case of one person’s word against another’s. No injuries. No threats. No knife wielding stranger leaping from the bushes. Just two people, not well acquainted, alone in a room. He says she flirted. He says he repeatedly checked for consent. He says he paid her—paid her the twenty pounds she asked for. She didn’t raise the alarm when she left the office. She didn’t report it straight away. He says this is a false allegation motivated by regret and embarrassment.

And these are all factors, rape myth-based factors, that we are persistently told count against conviction. In fact, we’re told these sorts of cases don’t even make it to court.

Then there’s the fact that Ruby’s 18—19 by the time it got to trial.

According to the research, 18–25-year-olds are the age group most likely to report rape and least likely to see a conviction.

And Ruby’s black. Again, according to the research, as a cohort, black rape complainants are the least likely to see a conviction, even where evidential thresholds are met.

In short then, according to the received wisdom, this is the wrong kind of rape with the wrong kind of victim.

So as the jurors settle into their seats, I’ve lost all confidence in this jury’s ability to cut through the noise, focus fairly and squarely on all the evidence before them, and convict this awful, awful little man.

He’s going to get away with it, isn’t he? The mainstream’s dismal account of rape in the criminal process was right all along… The wrong kind of rape. The wrong kind of victim.

The verdict is in

The clerk’s up.

‘Members of the jury’, he says, ‘have you reached verdicts on which you are all agreed?’

‘Yes’, says the jury foreperson.

‘On the charge of rape: Do you find the defendant guilty or not guilty?’

Guilty.

‘On the charge of false imprisonment: Do you find the defendant guilty or not guilty?’

Guilty

To say I’m relieved is an understatement. Now I’m just cross with myself for momentarily buying into the popular discourse that tells us that, when it comes to rape and serious sex offence, juries don’t convict, prosecutors don’t prosecute, and police don’t believe victims. The one that tells us that rape has effectively been decriminalised.

But I wonder, what are you feeling?

Surprised?

Relieved?

Shocked?

Maybe even sceptical?

Maybe you’re thinking, ‘of course they convicted? You saw the evidence! What are you on about “rape myths”, “mainstream narratives”, “popular discourses” and “conventional wisdom”? He’s patently, blatantly and very obviously guilty!’

Or maybe you think I’ve managed to stumble across an exceptional case. A trial that shows the system can work in rape cases but one which I’ve mistakenly understood as representing the norm, when in fact it’s the exception.

Whichever camp you’re in, this season of Criminal Justice in Action is for you.

Join me in episode three. We’re going to do it again. We’re going back to court.

We’re going to watch another rape trial. We’re going to see for ourselves if Tariq’s trial and the convictions that followed were a fluke.

Because if it wasn’t a fluke—if it wasn’t exceptional—then maybe the story we’ve been told about rape in the criminal justice system needs a closer look.

Outro

If you’ve been affected by any of the issues raised in this episode, please visit our website criminaljusticeinaction.com for information about support.

Criminal Justice in Action is a Scrutiny Media production.

Researched, written, and presented by Dr Candida Saunders.

Edited and produced by Candida Saunders and Gary Saunders.

Music: Hopeless Waltz by Alena Smirnova

This episode script from Rape on Trial is licensed under a Creative Commons Attribution–NoDerivatives 4.0 International Licence (CC BY‑ND 4.0). © Dr Candida Saunders.