Mainly for Archers fans: Will the jury be allowed to hear from Jess?

I should apologise to Barristerblogger readers who are not Archers fans. I was one of you once but the drama of Helen Titchener’s attempted murder trial has dragged me in.

The question of the moment is this: will Jess’s evidence be admitted?

If you haven’t clicked away from this page already you almost certainly know the plot. Helen is on trial for attempting to murder her husband, Rob. There is no dispute that she stabbed him. The issue is whether she acted in self-defence. It is for the prosecution to prove that she did not.

Neither barrister is looking like an early candidate for silk at the moment.

Helen’s brief, Anna Tregorran, made a mess of the crucial cross-examination of Rob, when she allowed it to degenerate into an undignified shouting match, before the loathsome complainant managed to sob out the the last few heart-rending seconds of his evidence; whilst prosecution counsel, Mr Bywater, despite a confident start has foundered badly in his cross-examination of Helen. His tone has fluctuated between sneery (sometimes a perfectly proper tone for a prosecutor), hectoring and downright aggressive. It hit an absolute nadir when he appeared to suggest that because she had conceived Henry by IVF, her desperation to conceive another child meant she would have had an insatiable sexual appetite thereafter.

Why has a story on attempted murder drifted off into a story about rape? The answer is that during her cross-examination Helen unexpectedly – at least to her counsel, it wasn’t unexpected to regular listeners – revealed that Rob had raped her; and not just once but numerous times during their short and unhappy marriage. She now wishes to rely on the fact of those rapes in support of her case that she was acting in self-defence when she stabbed him.

Clearly a woman who has been raped by her husband is likely to be more fearful of his violence than one who has not been.

But last night’s episode concluded with the news that Rob’s ex-wife, Jess, has now indicated that she wishes to give evidence for the defence. The suggestion is that she will reveal that she too used to be a victim of Rob’s sexual aggression.

The tension has lifted somewhat. Jess’s entrance into the witness-box will be the Ambridge equivalent of the US cavalry galloping through the saguaros. Once the jury hears that Rob raped her as well the prosecution case will fall apart, Helen will be discharged from the dock and, with a bit of luck, her handcuffs will be unratcheted a notch or two, the better to fit around Rob’s fatter wrists.

Unfortunately it’s not that simple. Anna Tregorran may be a bit of a plodder, but she does at least realise that the judge now has a crucial role to play in deciding whether Jess’s evidence can be admitted.

The days when you could sling any old mud on the grounds that you were entitled to attack a witness’s “credibility” have gone. Instead, Miss Tregorran will have to persuade the judge that the evidence is admissible under the restrictive terms of a statute. S.100 of the Criminal Justice Act 2003 provides:

(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if—

(a) it is important explanatory evidence,

(b) it has substantial probative value in relation to a matter which—

(i) is a matter in issue in the proceedings, and

(ii) is of substantial importance in the context of the case as a whole,

or

(c) all parties to the proceedings agree to the evidence being admissible.

We can rule out (c) straightaway. There is no chance that Mr Bywater will roll over and agree to the evidence.

She may try to argue (a): that it is “important explanatory evidence.” That was the basis upon which the judge admitted the evidence of Rob’s rapes of Helen. So far as Jess’s anticipated evidence is concerned it comes up against another restrictive definition in subsection (2):

(2) For the purposes of subsection (1)(a) evidence is important explanatory evidence if—

(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and

(b) its value for understanding the case as a whole is substantial.

My guess is that the judge would feel that Rob’s behaviour towards his last wife is not of substantial value for understanding the case as a whole.

So we come back to S.100 (1) (b).

The nub of it is whether evidence that Rob raped Jess “has substantial probative value in relation to a matter which is in issue in the proceedings.”

The main “matter which is in issue in the proceedings” is whether Helen believed in the heat of the moment that she had to use the knife to defend herself or Henry. She has explained why she was afraid of Rob in her evidence, and her explanation included the allegation that he had raped her. Somewhat reluctantly, given the way it was adduced, the judge allowed this evidence to be admitted, although he was faced with a fait accompli and the only real alternative would have been to discharge the jury and start again.

But evidence that Rob had raped Jess is less obviously relevant to that issue, particularly when Helen has not claimed that she was even aware of Jess’s rape. Perhaps it could be argued that a man who has shown sexual aggression to his first wife was more likely to be threatening in the way that Helen has described, but that’s not necessarily so. It could also be said that evidence that he had raped his first wife means that Helen is more likely to be telling the truth when she said that he also raped her. Finally, I daresay Miss Tregorran will say, bluntly, that a rapist is more likely to be a liar.

No doubt Mr Bywater will indulge in a fit of histrionics over the fact that Jess has arrived so late in the trial, but that is not Helen’s fault or even Miss Tregorran’s.

Nevertheless, the Judge will be irritated by this development. He will bear in mind that he has a duty to be fair to the prosecution as well as the defence. Jess’s eleventh-hour materialisation is a deus ex machina for Helen, but it is potentially unfair to Rob, who will have no real opportunity to deal properly with her exceptionally serious allegation, even if (which already looks inevitable) he is permitted to return to the witness-box to deny being a rapist.

And the judge will want to avoid the jury being distracted by “satellite isssues.” It is not unusual for all sorts of allegations to be thrown around in the midst of a criminal trial. A judge has to be able to draw a line somewhere, otherwise the trial is apt to be sidetracked into endless byways and dead-ends, with the attention of the jury losing all focus on the main issue. Indeed judges are constantly exhorted to make tough “case-management” decisions designed to stop that sort of thing happening.

Ultimately it will probably come down to whether the judge thinks Jess’s evidence goes to something which has “substantial probative value,” and is of “substantial importance in the context of the case as a whole.”

Jess’s relevance goes further than simply alleging that Rob raped her. She will want to say that he was “controlling and coercive” to her, just as he has been to Helen. But the arguments are much the same. Does the fact that he acted in a controlling and aggressive way to another woman have “substantial probative value” in the issue that the jury needs to decide, namely whether Helen was acting in reasonable self-defence?

Anyway, don’t assume that the jury will necessarily hear from Jess. One hopes that Anna Tregorran was up late last night honing a decent skeleton argument. Helen’s freedom now depends on how persuasively she can argue this knotty point on the law of evidence.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

22 thoughts on “Mainly for Archers fans: Will the jury be allowed to hear from Jess?”

  1. Wow. Hadn’t seen that one coming. It’s good to have a real-live expert on hand to guide us through these labyrinthine and traumatic proceedings.

  2. Had Rob been on trial for raping Helen I think Jess’s evidence would be a no brainer to admit as the case law on similar fact evidence has had a lot of very tangentially relevant evidence admitted (IIRC there’s a case on possession of drugs with intent to supply where the Court of Appeal considered that the trial judge’s admission of a very old photo of the defendant pictured with other people who had drugs paraphenalia in their hands was OK). It’s somewhat finer here as the prejudicial effect is likely to be very high indeed, though it would have probative value in rebutting a prosecution attempt to say Helen lying about having been raped by Rob.

    This has an appeal written all over it if Helen is convicted, although I suspect that would be of dramatic interest as an ongoing storyline mainly to lawyers! My guess is it’ll be admitted, Helen will be acquitted and it’ll then be used in a future story where Rob is tried for rape in which Helen will refuse to testify against him because she won’t want Jack to grow up with a convicted rapist for a father…

    1. Yes, you’re right plenty of dramatic scope either way. There did seem to be a slight hint of your version in last night’s episode. For the time being the tension is being ratcheted up nicely.

  3. Thanks! I’ve been looking for a legal view point on it for a couple of days. The lawyers seem to be a bit rubbish but not sure how much of that is down to having 14 minutes to get it in.

  4. This is great fun! Thank you Matthew.
    Whether Jess’s evidence is admitted or not (and Rob knew about her meeting with Helen so could easily suggest collusion ‘putting heads together’) there’s a better angle I would suggest.
    Now Helen has spoken out and the prosecution alleged this is recently fabricated surely the helpline records where Helen is recorded as mentioning coercive control in terms and rape – weeks before the Jess meeting and the subsequent events – could be obtained and admitted to rebut the prosecution allegation of recent fabrication in addition to support?
    Jess could be reserved for the Rob trial(s)

    1. I think there was a mention from Anna Tregorran that the DV helpline didn’t take any notes of her call, just that she’d made it. But yes, even that would help a lot.

  5. Really helpful to have expert legal input (even if it isn’t always what most of us fans want to hear!) – many thanks, BarristerBlogger 🙂

  6. Anna referred to important explanatory evidence but the judge referred to substantial probative value. It sounds like he is going to admit it under s.100(1)(b).

  7. Excellent information, thanks.

    Surely the key point will be if it emerges that Rob had visited Jess and ‘spoken’ to her prior to the trial. This would surely be clear evidence of influencing a witness?

      1. We just need Jess to say that he did, and that he also dragged Henry along with him when he did it. (It was about a month ago, or just less.)

  8. Really helpful, thanks. However one clatification re your comment that neither barrister “is looking like an early candidate for silk”. According to previous episodes, Anna is already a QC. I do find this hard to believe given her track record on air but there you go.

  9. Free the Ambridge One!

    Anyone else remember the grafitti FREE ASTRID PROLL to which people added WITH THREE MEDIUM SIZE BOTTLE TOPS!

    Or GEORGE DAVIS IS INNOCENT to which after he pleaded guilty to another job was added OH NO HE ISN’T!

  10. This is interesting to read after the episode that this was anticipating would be broadcast. Even though I have an exceptionally logical mind it was still difficult to follow, especially where it, the article, kept dropping into (pseudo) Latin, a subject I gave up over 45 years ago when I left Prep School and went to Public School. I don’t see why the Judge should get “irritated” by the developments before him. By doing so he will, surely, lose the impartiality that Judges are supposed to have, thus making him unfit for purpose or the job he has been employed to do. Having now listened to tonight’s episode I’m loosing what respect I have for the law profession, mainly due to the way that they, like journalists, twist whatever anyone is trying to say, and are really aggressive in how they ask questions.

    It also highlights just what a bearpit a court room could be, rather than a place which analyses exactly what has happened and therefore what the outcome should be. An experience I encountered at the start of the year when an aggressive driver appealed his Magistrate’s Court conviction in the Crown Court, and defended himself, and I was in the witness box for nearly an hour.

  11. My husband and I are lawyers in Australia and are also long term Archers fans. Some of the trial scripts for the barristers have been frustrating making us wish we were there to object to some of the prosecutors statements and to ask whether there is a question instead of a long verbal badgering.

    Enjoyed this analysis. Thanks very much.

  12. Excellent blog, Matthew! Great to have some properly informed viewpoints. In view of latest developments, it would also be most valuable to hear your thoughts on three subsequent points:

    1) The responsibilities of a CPS barrister who by now must be aware that his principal witness may have been attempting to procure the silence of a potential material witness and therefore pervert the course of justice.

    2) The likelihood of Helen being able to obtain bail in the event of the trial having to be halted.

    3) Ways and means by which complaints and charges of rape and/or coercive control could be brought against Rob Titchener even in the event of his wife not being aquitted.

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