Russell Brand is beginning a prison sentence of 10 years and six months after being convicted of rape and three sexual assaults. The verdicts and the subsequent sentencing have once again exposed something deeply disturbing about our criminal justice system — not its ability to convict a guilty man, but the attitudes towards rape and sexual violence that are still prevalent in wider society and, more worryingly, within the legal profession itself.
On Thursday 5 November, a jury at Southwark Crown Court found Brand guilty of raping one woman and sexually assaulting three others. It acquitted him of two further rape charges and one charge of attempted indecent assault.
The jury heard the evidence, considered the prosecution and defence cases, and decided which allegations were proved beyond reasonable doubt. It was sure of Brand’s guilt on four counts, but not sufficiently sure on three others. That is how our criminal justice system is supposed to work.
Yet the reaction on social media reveals that, for some people, the only acceptable verdict is the one that confirms their pre-existing beliefs.
When a man is acquitted of rape, there are inevitably demands that the woman who accused him should be named, shamed and prosecuted for making a false allegation. Such demands ignore the distinction between an allegation that has not been proved and one established as false. When a man is convicted, the same people suddenly discover that juries are unreliable, that the evidence was insufficient or that the defendant has been the victim of a conspiracy.
Following today’s sentencing, Brand’s father, Ron, offered an extraordinary example of this thinking. Asked by journalists whether he had a message for his son’s victims, he replied: “The victim? What, Russell?”
He suggested that the jury might have been corrupt, arguing that it was easy to find people critical of Brand by examining what they had written on Facebook. He implied that people hostile to Brand had been selected for the jury. No evidence supports that suggestion. Indeed, before the trial, Mr Justice Bennathan rejected an application by Brand’s lawyers to halt the prosecution on the grounds that adverse publicity had made a fair trial impossible.
The judge was satisfied that a jury could be selected without people influenced by the previous reporting. But Ron Brand’s suggestion is revealing. In his telling, the convicted rapist becomes the victim, the women who reported his crimes become the villains and the jury becomes suspect simply because it reached the wrong conclusion.
It is not just offensive. Such attitudes can have devastating consequences for victims. At the sentencing hearing, one of the women Brand sexually assaulted described receiving abuse and death threats from his supporters on social media. She feared that her identity might be discovered, putting her and her family at risk.
This is not an abstract argument about competing opinions. It is about the continuing harm inflicted on people who have already suffered serious crimes.
Evidence
One recurring response to Brand’s conviction has been the claim that no evidence existed against him. How, critics ask, could a jury convict somebody of an offence committed nearly 20 years ago? Why did the women not report what happened at the time? How could anybody be convicted on one person’s word against another’s?
These questions are often presented as serious concerns about justice. Frequently, however, they are not requests for explanations but assertions designed to cast doubt on the complainants.
Let us start with the obvious point: witness testimony is evidence. It does not cease to be evidence because there is no CCTV footage, no forensic evidence or no contemporaneous police report. The law does not require independent corroboration before a jury can convict somebody of rape.
And there are safeguards. Before bringing charges, the Crown Prosecution Service must be satisfied that the evidence provides a realistic prospect of conviction and that prosecution is in the public interest. Prosecutors must assess the reliability and admissibility of the available evidence, including material that might undermine their case.
Once proceedings reach the Crown Court, a judge controls the conduct of the case, rules on questions about the admissibility of evidence and can dismiss charges where the prosecution evidence is legally insufficient. The defence can also argue, after the prosecution has presented its case, that there is no case to answer.
These safeguards do not guarantee that every verdict will be correct. No human system can do that. But they make the suggestion that somebody can simply walk into court, make an accusation and secure a conviction without evidence plainly absurd.
In Brand’s case, Metropolitan Police detectives gathered evidence from more than 100 witnesses and examined thousands of documents during their investigation. The jury also heard evidence that some women had disclosed their experiences to other people years before the 2023 media investigation. That matters because it undermines the suggestion that the allegations were all invented in response to a television documentary.
The jury was not asked which side it liked better, which witnesses it found more sympathetic or whether Brand was a pleasant person. It had to decide whether the prosecution had proved each charge to the extent that the jurors could be sure of his guilt.
That brings me to the aspect of this case that concerns me most.
Myths
The behaviour of social media commentators is disturbing enough. But they are not bound by lawyers’ professional responsibilities. Russell Brand’s barrister, Ian Winter KC, is.
A defence barrister has an important responsibility to represent their client fearlessly. They must challenge the prosecution’s case, test the reliability of witnesses and advance any proper argument that might demonstrate reasonable doubt. These are not optional extras. They are essential to a fair trial.
But that responsibility raises a serious question: should a barrister be permitted to rely on damaging and thoroughly discredited myths about rape and the behaviour of victims?
During his closing speech, Winter challenged the complainants’ accounts, saying that none had “resisted or screamed or even tried to leave”. He questioned why the woman Brand was convicted of raping had not physically kicked out at her attacker. In relation to a woman whom Brand sexually assaulted at a Soho bar, he suggested that she was perfectly capable of looking after herself and questioned why she had not slapped Brand when he grabbed her breasts.
These arguments rely on one of the most persistent rape myths: that a genuine victim will scream, fight, resist physically or attempt to escape.
The Crown Prosecution Service has repeatedly warned against precisely this assumption. People respond to sexual violence in different ways. Some fight back. Some freeze. Some become submissive or attempt to placate their attacker. Some dissociate from what is happening to them. There is no single response that establishes whether a sexual assault occurred.
And there is no requirement in English law for a person to resist physically or verbally before an offence can constitute rape.
Winter also questioned a complainant about why she had not reported her allegation during the #MeToo movement, suggesting that women everywhere had been reconsidering experiences involving famous men.
The judge intervened, describing this as something of a generalisation. Quite so.
There is no timetable within which a victim must report sexual violence to demonstrate that it happened. There are numerous reasons why somebody might delay reporting, including fear, shame, trauma, threats, concern about not being believed and the power or influence of the alleged offender. That last consideration was particularly relevant in Brand’s case.
At his sentencing, the woman he raped explained that his fame, wealth and influence had made her feel powerless. She feared that nobody would believe her if she reported what he had done. Another woman told the court that a complaint she had made to Channel 4 management after Brand sexually assaulted her in 2009 had been brushed under the carpet. She had reported the incident. It was the response that she received which silenced her.
Winter also sought to undermine the complainants by pointing to their conduct before and after the alleged assaults. But there is no standard way that victims should behave afterwards. Nor does agreeing to meet somebody, visiting their home or engaging in consensual sexual activity amount to consent to everything that might subsequently happen. This distinction was central to the rape for which Brand was convicted.
The woman had willingly attended one of his performances and subsequently gone to his home for sex. The jury heard that vaginal intercourse was initially consensual. Brand then subjected her to non-consensual anal penetration, having removed a condom without her agreement, and ignored her requests to stop. Consent to one sexual act is not consent to another. Consent can also be withdrawn.
The law does not require a woman to say the word “no” before an act becomes rape. The question is whether she agreed by choice, with the freedom and capacity to make that choice, and whether the accused reasonably believed that she consented. Silence, compliance or the absence of physical resistance does not, by itself, establish consent.
Another part of Winter’s defence concerned the 2023 Channel 4 Dispatches programme and the investigation by The Times and The Sunday Times. He argued that the publicity had contaminated the accounts the victims later gave to police.
It is perfectly proper for a defence barrister to explore whether publicity has influenced a witness’s recollection. But it is not legitimate to assume that women who make allegations following publicity about a prominent man must be conspiring against him.
The CPS said the complainants came forward independently and for their own reasons.
These were matters for the jury to consider on the evidence, not on assumptions about what women supposedly do.
Mitigation
The same problem was evident during today’s sentencing hearing. Winter argued that the rape should be treated as a comparatively less serious offence, describing it as a “short and momentary failure” involving consent to the particular sexual act and the use of a condom.
The duration and specific circumstances of an offence can legitimately be relevant to sentencing. A barrister is entitled to present mitigating factors on behalf of a convicted client. But there is something deeply troubling about describing rape in terms that make it sound like a brief misunderstanding about sexual boundaries. This was not a technical infringement of an agreement. It was rape.
The woman had consented to vaginal intercourse, not the violent anal penetration to which Brand subjected her. The jury had heard how she begged him to stop and how he subsequently humiliated her.
At sentencing, Mr Justice Bennathan rejected the suggestion that Brand’s behaviour could be minimised in this way. He described Brand’s attitude towards women as one of arrogant disregard for their right to refuse him. A rape does not become a minor violation because it happens quickly. Nor does its impact necessarily end when the physical assault stops.
Silencing
Another development in the Brand story raises disturbing questions about the ability of powerful people to silence those who make allegations against them. In 2014, a massage therapist, Szilvia Berki, accused Brand of assaulting her. The police took no further action. Brand and his then-girlfriend, Jemima Goldsmith, later brought civil proceedings against her after she repeated her allegations publicly. In 2015, the High Court granted an injunction against Ms Berki in harassment proceedings.
An investigation published by former lawyer Dan Neidle has now revealed the extraordinary breadth of that order. It prevents Ms Berki from discussing the disputed events with journalists, friends or family. On its face, it also appears to prohibit her from discussing them with the police or with other potential claimants. She was ordered to pay £50,000 towards Brand and Goldsmith’s legal costs.
Ms Berki was representing herself. The proceedings were resolved without a full trial of her allegations and there was no determination establishing whether they were true or false. That distinction is important. Brand’s subsequent criminal convictions do not prove Ms Berki’s allegations. Equally, the injunction was not a judicial finding that she had fabricated them.
In September this year, Lady Justice Falk acknowledged concerns about the injunction’s breadth but declined to reopen the earlier appeal decision. She indicated that an application to vary the order should instead be made to the High Court. The injunction remains in force.
There can be legitimate reasons for courts to restrain harassment. But how can it be appropriate for an order intended to prevent harassment to restrict someone’s ability to discuss an allegation privately, or even to report it to the police?
Whatever the merits of the original allegations, the case raises profound questions about the power imbalance between wealthy, well-represented individuals and those without comparable resources. It is a different legal issue from the criminal proceedings that led to Brand’s imprisonment. But it belongs in the same wider discussion about the obstacles that can face people who accuse powerful figures of wrongdoing.
Responsibility
My concerns about Winter extend beyond the arguments he advanced to the jury. Following the verdicts, he confronted Rosamund Urwin, the Sunday Times journalist whose investigative work helped bring the allegations against Brand into the public domain. When Urwin said she was pleased justice had been done, Winter responded angrily that it had not and accused her of having ruined it, before adding a sarcastic “Congratulations”.
Winter has subsequently self-reported the incident to the Bar Standards Board, which regulates barristers. The regulator must decide whether his conduct breached professional standards. A public disagreement with a verdict, even an intemperate one, is not in itself proof of professional misconduct. But the confrontation was extraordinary.
Rosamund Urwin, Channel 4 and The Sunday Times did not deliver the verdicts. Twelve jurors delivered them after listening to weeks of evidence and reaching their conclusions in accordance with the law. Journalists do not convict defendants. Juries do.
Barristers have duties to their clients, but they also have an overriding duty to the court in the administration of justice. They must maintain their independence and avoid conduct likely to diminish public trust in the profession. Their professional responsibilities should also extend to how they use their considerable authority in the courtroom.
I am not suggesting that barristers should be prevented from testing complainants’ evidence or asking difficult questions. Nor should judges simply prevent a defence from being advanced because it is uncomfortable or unpopular. But an important distinction exists between challenging an individual witness’s evidence and inviting a jury to rely on assumptions about how a genuine victim would behave.
The former is essential to justice. The latter risks undermining it.
JURIES
Before she died, Jill Saward worked with Alison Boydell on a campaign to challenge these misconceptions. Their campaign, JURIES — Jurors Understanding Rape is Essential Standard — sought to ensure that jurors received information about rape myths before they began hearing evidence.
Jill’s concern was that jurors might arrive in court carrying mistaken assumptions about rape, consent, resistance and reporting. Those assumptions could then influence how they interpreted the evidence from the beginning. Warning jurors against rape myths only when the evidence had finished and they were about to begin their deliberations might be too late.
The campaign proposed that jurors should receive standardised information at the start of a trial, allowing them to recognise and challenge those misconceptions before they influenced their assessment of witnesses. Jill died in January 2017 without seeing the campaign achieve its objectives.
More than a decade after JURIES launched, a much wider group of people is now asking the same questions.
Following Brand’s conviction, the Victims’ Commissioner for England and Wales, Claire Waxman, renewed calls for consistent legal requirements to warn jurors against rape myths. Metropolitan Police Commissioner Sir Mark Rowley also expressed concern about aspects of the defence questioning. Mr Justice Bennathan did warn the jury against drawing adverse conclusions simply because the women had delayed reporting their allegations.
That was important. But it also illustrates the problem. Why should a judge have to warn jurors against assumptions already promoted in court by a senior barrister? Why do we accept that jurors need protection from rape myths while apparently accepting that those myths can be deployed as part of a defence strategy?
A fair trial requires the presumption of innocence, the right to challenge evidence and a prosecution that proves its case beyond reasonable doubt. It does not require women to be judged according to how somebody imagines a rape victim ought to behave.
The Brand trial has demonstrated that our criminal justice system can convict a powerful and influential man of serious sexual offences, even many years after they occurred. But it has also demonstrated how much further we have to go.
The issue is not simply whether individual jurors understand rape myths. It is whether the justice system is willing to confront their use within the courtroom itself. Until it does, myths that have discouraged victims from reporting rape for generations will continue to be given an undeserved veneer of credibility by those who are supposed to understand the law. And that is dangerous.
