An Interview with Berenice Mulvanny by Rebecca Astill
*T/W // R*pe & Assault: This piece talks openly about details that may be triggering for survivors.*
What inspired you to prosecute and defend sexual abuse cases?
This question isnÔÇÖt a particularly easy one to answer. Many barristers, including myself, if theyÔÇÖre being completely honest would say that the reason is for the renumeration. The more serious the offence, the higher the fee.
Whether youÔÇÖre prosecuting or defending, these cases are the most emotionally exhausting, but theyÔÇÖre also exceptionally rewarding. These are the cases where you genuinely think your job is worthwhile.
Defending somebody charged with shoplifting does not give you a nice feeling when you get home. Prosecuting someone for throwing a brick through somebodyÔÇÖs window doesnÔÇÖt make you feel like you are contributing to the world and making the world a better place.
Prosecuting and defending in these types of cases does. YouÔÇÖve either supported a vulnerable victim through the ordeal of a trial, whatever the outcome, or helped a defendant protest their innocence. You meet these people at a time when theyÔÇÖre most vulnerable. They spend months, IÔÇÖm afraid at the moment, years, waiting for their trial and you have the power to make that experience a positive one.
Can you briefly detail your most high profile case involving a sexual offence, and the result?
I was the junior prosecution barrister in a very high profile case called Bob Higgins involving the sexual abuse of children at a premier league football club, spanning a number of decades.
‘He was convicted of 45 accounts of indecent assault against 23 victims.’
He was a predatory paedophile who used his reputation as a star maker. He trained a lot of incredibly high profile footballers. He used that position to abuse children while he worked as the Youth Development Officer at Southampton football club and then Peterborough United. He was convicted of 45 accounts of indecent assault against 23 victims. The first trial lasted approximately 8 weeks in the summer of 2018 and the jury were hung, meaning that they couldnÔÇÖt reach a majority decision. That jury were discharged and there was a retrial at the beginning of 2019. He was convicted at the retrial and sentencing to 24 years in prison.
It was quite sad because one of our victims who gave evidence in the first trial was killed in a car accident before the retrial. He was one of the men who, we think, needed to see justice the most. We were still able to pursue the counts relating to him because we had the recording of his evidence and cross examination from the first trial, and the defendant was convicted of all those counts.
And the most interesting sexual offence case youÔÇÖve dealt with?
‘The allegation was of rape. The complainant was the defendantÔÇÖs younger sister and she said that when she was a child, she was sexually abused and then ultimately raped by her older brother in the family home.
What was interesting about it, was that the allegation was of abuse 60 years ago. It was one of the most historic offences that IÔÇÖve ever dealt with. The defendant had lived his whole life and got to his late 80s as a man of good character, meaning that he had had no involvement with the police or the criminal justice system, until this allegation. He gave evidence and told the jury that that hadnÔÇÖt happened, and he was found not guilty.
Obviously when youÔÇÖre prosecuting a case, you always hope that youÔÇÖre going to secure a conviction. ThatÔÇÖs your job. Sometimes you take a step back and think, what would I do if I was on that jury? Would I convict this person? I remember when the jury came back and sat down, and the clerk stood up and said, ÔÇ£Can the foreman of the jury please stand. Do you find the defendant guilty or not guilty?ÔÇØ And for a moment, for the first time ever, I thought, I really hope they donÔÇÖt find him guilty. I suddenly thought, how can they, 60 years later, on the word of one person? This man had lived his whole life as a law-abiding citizen. I think that was the right verdict.
Completely anonymously, have you ever defended a client whose side of the story you didnÔÇÖt believe?
Over time you learn to separate your personal opinion of someone and what theyÔÇÖve done and your professional obligation. At the start of my dealings with somebody, I will always voice my concerns because of how the jury might view them, but ultimately if a client wants to pursue a not guilty plea even though youÔÇÖve warned them that potentially, no one is going to believe them, then thatÔÇÖs their decision to make.
‘By the time you get to trial, youÔÇÖve got your poker face on and you need to win an Oscar with your performance.’
I suspect weÔÇÖve all had cases where weÔÇÖve thought our client is probably guilty, only for the evidence to unfold in their favour. A trial is an organic, fluid event, and all defendants have a right to a fair trial and a barrister who acts to the best of their ability regardless of personal views.
By the time you get to trial, youÔÇÖve got your poker face on and you need to win an Oscar with your performance. As far as youÔÇÖre concerned, you believe every word your client is saying.
Do you think that the changes to abolish the ÔÇÿrough sex defenceÔÇÖ will be successful, or will alleged perpetrators still manage to find loopholes to shorter sentencing, or even no sentencing at all?
Lawyers know the murder defence that it was accidental during consensual sex is not a legal defence. After the 1993 case of R v. Brown, the law has been that this defence cannot stand in court.
The only positive effect it could have is that after the media interest that itÔÇÖs attracted, the fuss made by politicians and awareness groups, the police, with CPS advice, should now always be charging these kinds of offences and the CPS should be discouraged from accepting guilty pleas to a lesser charge. It would be very unwise now, because of all the hype in the media, for the CPS to be accepting manslaughter instead of pursuing murder.
What more do you think can be done to prevent the tarnishing of the names of victims in these cases, like in the Grace Millane case?
Any complainant who alleges any kind of sexual defence, no matter how minor or serious, is automatically entitled to lifelong reporting anonymity, regardless of the verdict. However, the deceased in murder allegations do not have that same anonymity. When court proceedings progress to trial, the names may already have been reported on a regular basis, and unfortunately this can include sexual details.
The only mechanism for preventing the tarnishing of victimsÔÇÖ names would be introducing restrictions in the media on certain topics such as their sexual conduct. There should be a pre-trial hearing to establish what, if anything, the press are allowed to report. That is likely to attract fierce opposition from the media. We both know that headlines like that make good reading and sell papers.
You either restrict the reporting of the name but the details can be reported, or you restrict the details and can report the name. This wonÔÇÖt work in murder cases, where names are reported before the details are worked out.
Do you think that educating the jury on sexual violence before trials may help to prevent attackers from getting away with incorrect sentencing? Or would this create an unjust bias?
ItÔÇÖs not juries that need to be educated on sexual and domestic violence, itÔÇÖs society as a whole.
‘Everybody is very awkwardly aware that itÔÇÖs very hard to secure a conviction in a rape case.’
In trials now, the judge will help the jury in ignoring stereotypes and they get a number of official warnings of certain stereotypes from the judge at the end of the case before they go out and decide.
Using a video, for example, is asking for trouble. You would be turning the defence against the defendant from the start, by somehow trying to tip the scales in favour of the prosecution.
Although our jury system isnÔÇÖt perfect, the trial process has evolved significantly in recent years and has adapted to try and address the imbalance. Everybody is very awkwardly aware that itÔÇÖs very hard to secure a conviction in a rape case.
At the end of the day, although everyone is incredibly sympathetic towards victims, and I donÔÇÖt minimalise the distress that people are caused by going through the trial process, I still genuinely believe that better a guilty man goes free than an innocent man does not.
If you have been affected by any of the topics discussed in this article, support can be found on the rape crisis website. http://rapecrisis.org.uk/. They also have a UK helpline on 0808 802 9999 that is open between 12:00-14:30 and 19:00-21:30 everyday of the year.