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.