and
barristers quitting criminal practice in droves,
the
Guardian shadowed one prosecutor for two years
Wed
17 Jan 2024 06.00 CET
The
Guardian
by
Melissa Denes
What
Tyrone Silcott would really like to know is this: what were the jurors thinking?
At the end of every trial that does not go the barrister’s way, he has to sit
down and write an “adverse verdict report”; his best guess at the reasons why.
With a rape case, the reasoning is more obscure than with any other type of
crime. Physical evidence and witnesses are rare. A tendency to doubt the
complainant is still a factor. To some extent, Silcott says, “the jury have to
choose who they believe”. Do they identify with the accused? Do they see in him
a son, a brother – someone who doesn’t deserve a minimum of four years in jail?
Do they find the accuser just a little too calm on the stand?
When I first meet Silcott, in March 2022, he has successfully prosecuted six
sexual assault cases in a row – an unprecedented number. Still, the unpersuaded
jurors play on his mind. He speaks via video link from the Inner London crown
court in south London, taking off his wig to eat a 4.30pm lunch in an ante room.
Silcott’s most recent case has made headlines: a 55-year-old photographer,
Pascal Molliere, has been convicted of sexually assaulting a young woman during
a photoshoot 12 years earlier. The jury voted 10-2 and 11-1 on three counts.
What hadn’t convinced the holdouts? “She was very credible, yet they weren’t
sure.” Silcott shakes his head, baffled. “They should allow controlled
post-trial interviews with jurors. Otherwise we’re all rather guessing, aren’t
we?”
Silcott was called to the bar in 2004 after a career as a financial adviser. Now
in his late 50s, he is the most junior prosecutor in his chambers (Furnival in
central London) who will take on rape cases. Many younger lawyers don’t want to
do them: the work is complex, time-consuming and often poorly paid. It also
appears to occupy a lower status within the criminal justice system: rape is
rarely tried at the Old Bailey, for instance, or fast-tracked, because suspects
are typically bailed. Junior barristers prefer the relative predictability of
murder or organised crime.
Since 2021, a requirement to offer to pre-record the complainant’s
cross-examination, known as a section 28, has played havoc with schedules and
resulted in barristers losing fees. While the measure is intended to protect
vulnerable witnesses from having to testify in court, a barrister could end up
working extensively on the case and then not be free for the trial itself,
meaning no payment (a fee for section 28s was not introduced until February
2023). “A lot of the junior end think: ‘Why take that risk when there’s a lot of
other good work out there?” says Silcott.
Increasingly, “out there” means commercial work. According to the Criminal Bar
Association, 46% of king’s counsels and 22% of junior barristers quit criminal
practice between 2017 and 2022 – a catastrophic loss. In the year to June 2022,
2,389 crown court trials (of all crimes) did not go ahead because there was no
prosecutor available – an increase of nearly 1,000% on 2021, according to
government figures.
Like most barristers, Silcott prosecutes and defends a range of crimes. Rape is
the most important, he says, and the most difficult. “The guns and the drugs are
fun, and fraud I know well. But this is an area where I feel I can make a
difference.” He made the decision to retrain after 9/11. “I was sat at home,
watching people who had gone to work that day throw themselves out the window,
and thought: ‘What do I really want to do?’ It wasn’t helping wealthy people
squeeze out a bit more.” He took a law degree in a year, followed by bar school.
“I loved every minute. It was a humbling experience, to be surrounded by
brilliant young people kicking my arse.”
In the spring of 2022, Silcott thinks there are reasons for a rape prosecutor to
be hopeful. He is seeing signs that more jurors understand the complexities and
he is winning cases he wouldn’t have done a few years ago. “I’m not sure
Molliere would have been convicted without this narrative of Jimmy Savile,
Harvey Weinstein, all that we now know about how men in power exploit women,” he
says.
But the big picture is still a challenge. The conviction rate for rape in the
spring of 2022 is 63%, but when only 5% of alleged rapes meet the high bar
needed for prosecution, shouldn’t that figure be higher? People are waiting an
average of two and a half years for a case to make it to trial. When we first
meet, there is another complicating factor on the horizon: defence barristers
have just voted to strike over pay that hasn’t increased since 1998.
“I always feel embarrassed talking about this, because I make a good living,”
Silcott says. “But the demands on us are akin to very senior executives working
around the clock.” He prepares cases most evenings and weekends.
The pressures on prosecution barristers are about to grow even more: in
September 2022, the backlog of sexual offence cases awaiting trial will reach a
record 7,859 cases (from 3,606 pre-pandemic) and the failure to prosecute sexual
violence will become an urgent political issue. The Labour leader, Keir Starmer,
will promise to make it a 2024 manifesto priority, while the prime minister,
Rishi Sunak, has affirmed the Conservatives’ pledge to more than double the
number of rape cases reaching court. Even if the Conservatives’ plan succeeds,
will there be any lawyers left to prosecute them?
Back in south London, a clerk knocks on Silcott’s door to warn him the building
is about to close. The lights flick off in the hallway – a cost-saving measure.
“This courthouse is falling down around my ears,” Silcott says as he stands to
pack his bag. “The toilets don’t work, the air conditioning makes a racket.
There is no investment going into the criminal justice system.” This isn’t
incidental, he adds: resources have a direct impact on the conviction rate.
“Come to trial and you’ll see what I mean,” he says.
On a humid day at the end of August 2022, the accused enters the dock in
courtroom two of Croydon crown court. He is in his 50s, dressed in jeans, thick
spectacles and an anorak, and listens blankly as the judge discusses the case
with Silcott and the defence barrister. A relative has alleged eight charges of
rape and sexual assault, when she was aged between six and 11 years old and he
was in his early 20s. The judge, impatient and imperious, asks the lawyers if
the accused has any vulnerabilities. “You have no problems understanding me, do
you?” she calls to the man, who shakes his head. She smiles encouragingly and
admits the jury of eight women and four men.
Over the next five days, the court hears from the complainant, her best friend,
the investigating officer and the accused. It was her therapist who had first
gone to the police, persuading her to file a report four years ago. One of the
triggers, and a key piece of Silcott’s evidence, was a dramatic encounter in
Poundland: after not seeing the accused for many years, she encountered him in
the aisles and collapsed. An ambulance was called. But how can she prove it was
him? He denies being there and his travelcard no longer holds the data. The
defence emphasises the delay in reporting: how many of us remember what we were
doing 30 years ago? She asks why the police officer did not interview other
family members, before calling to the stand a relative – a surprise witness –
who says he saw nothing.
In the absence of hard evidence, a rape trial is, on some level, a storytelling
contest: which lawyer paints the more vivid picture? Whose version feels more
real? This is not like the organised crime Silcott prosecuted a few months
earlier, where the jury could watch police body-camera footage, see the
warehouse being broken into, the defendants’ gun store. Instead, the lawyers
tease every last detail from their witnesses: the layout of the rooms in the
house, the weekend routines, the family hierarchy – until it becomes three
dimensional in the minds of the jurors, like a film they might remember.
The jury hears about the Saturday morning trips to the butchers, the front room
kept for best, the boardgames. “Which boardgames?” the defence barrister asks.
“Monopoly, Kerplunk,” the accused replies.
The evidence shifts from the banal to the unthinkable, the domestic to the
criminal. The complainant says she was raped every other weekend. It is easier
to visualise her descriptions of the green lino floor, the unpainted plaster
walls, the yellow toy car on the windowsill.
While the jury breaks, there is a warmth between the lawyers. They compliment
each other on effective lines of attack (“I’m going to steal that”) and gossip
about a colleague. Silcott says he hopes the defence isn’t going to quote
Winston Churchill or Sherlock Holmes in her summing up. Nelson Mandela is the
other cliche: “‘Mandela was in the dock, so don’t hold it against the defendant
you see before you.’ Also: ‘Bob Marley didn’t really shoot the sheriff.’” The
defence laughs. She has broken the strike to be here, because she feels her
client would be vulnerable if the trial were delayed. She is kind to him,
mouthing ‘Are you OK?’, a gentleness in front of the jury that is its own form
of defence.
It is not the prosecutor’s job to be kind. In cross-examination, Silcott pushes
the accused on his inconsistencies: he had testified that his bedroom door was
kept open and kept closed – which was it? Flustered, the defendant protests:
“She’s lying!” Silcott pauses to let the line sink in. Her testimony had been
calm and coherent; did the jury think she was a liar? The defendant asks for a
diazepam.
The next day, the jury begin its deliberations. The judge is magnificent in her
final directions, dismantling a series of myths. She tells the jurors they must
put any expectation of how a complainant should behave from their mind: there
are as many ways of reacting – animated, flat, emotionless, hysterical – as
there are people. A delay in reporting does not make something untrue, any more
than an immediate report makes it true. She makes a smart distinction: perhaps
the complainant was mistaken about the man in Poundland, but even if she was,
they could consider her distress. She tells the jurors to be human, but not too
human; they must bring their knowledge of life to bear while putting sympathy
aside; they must not speculate.
In the end, the burden of proof is on the prosecution; the defendant does not
have to prove his innocence. In other words, unless Silcott has made them
absolutely sure, beyond all reasonable doubt, the jury must return a verdict of
not guilty.
After seven hours and two minutes, the jury were hung on all eight counts. The
complainant, having waited four years for a verdict, decides against a retrial.
When the bar for conviction is so high, is it surprising that so few cases make
it to court? A juror cannot convict on a balance of probabilities, as happens in
civil trials. There is no verdict of “not proven” in England and Wales, as there
is in Scotland, although the government there plans to phase this out. A 2019
study in Scotland, involving 32 mock juries trying two fictional cases, heard
from several jurors who worried that by using a “not proven” verdict, they were
“sanctioning rape”. “I think he was guilty, but they couldn’t prove [it],” said
one juror. “Although I definitely believe her.”
Deliberating on a jury is one of the most secretive and consequential
experiences in public life, which is what makes studies like the Scottish
government’s so valuable. If Silcott could ask a juror two questions, he would
say: “What was the key piece of evidence? What allowed you to be sure or not
sure? I’d want to know if there was old-fashioned thinking in there.” The 2019
Scottish study found that some mock jurors were susceptible to rape myths: one
disbelieved the complainant because she had not fought off her former boyfriend
(“You would scratch, you would scream”). Others were less prescriptive.
Ultimately, jurors are a randomly selected group of people, not experts – that
is the whole point.
In September 2023, the Scottish government proposed a pilot scheme for no-jury
trials, noting that the overall conviction rate for other crimes was 91%, while
rape stood at 51%. Under the pilot, a specialist judge would reach a verdict – a
proposal the president of the Law Society of Scotland, Murray Etherington,
vehemently rejected: “By definition a jury is more reflective of Scottish
society than a single judge can possibly be.” For this and other reasons, you
will struggle to find a lawyer who supports no-jury trials. “I wouldn’t be on
that ticket,” says Silcott.
In England and Wales, the Law Commission recently consulted on 113 measures to
improve sexual offence prosecutions, ranging from the obvious to the radical,
with its recommendations to be published later this year. Should the complainant
be cross-examined by someone other than the defence lawyer, whose priority is an
acquittal? Should vulnerable defendants give evidence by video link? Should rape
be tried in specialist courts, with a bespoke design and trained staff?
Most compellingly, the commission’s 731-page interim report looked at ways in
which a complainant could have more agency in the trial process. At present,
they are there only as the prosecution’s key witness, while the accused has
their own lawyer, paid for by legal aid or privately. The prosecutor acts for
the crown, not the complainant, although their interests overlap. Should
complainants instead have access to independent legal advice and representation,
as in Northern Ireland? Should a complainant have a say in what evidence,
including phone records and therapy notes, is admissible? At the very least,
they should meet their barrister before the trial – something that doesn’t
always happen, but that the justice secretary, Alex Chalk, has announced will be
compulsory from 2024.
Silcott has been meeting his complainants before trial for years. “It’s basic
procedure,” he shrugs, “to make sure someone understands what happens in court.
I’m the first person to ask them questions, and giving sworn evidence is really
daunting.” As we await the verdict in Croydon crown court, Silcott looks through
his diary of cases. There is a retrial of a man accused of assaulting his
stepdaughter, rescheduled many times: “This is a 14-year-old girl who has gone
through years of giving evidence.” There is another woman bringing historic
charges against her uncle. And there is an outlier case, one that has been
playing on his mind.
The Crown Prosecution Service sent this case to Silcott for an opinion: was
there a reasonable prospect of conviction? A couple had been in a relationship.
One night, she said no and he had gone ahead anyway, briefly, before stopping
and apologising. When they split up some time later, she told her mother, who
reported him to the police. The relationship had been loving; the accused had no
history of criminality: it would be an incredibly hard case. But Silcott has
advised that it passes the public interest test. After his six guilty verdicts,
he has decided to prosecute the case himself.
If you wanted a metaphor for the dilapidated justice system, you might start
with the Inner London crown court. Its Grade II-listed facade houses a
high-ceilinged lobby and oak-panelled corridors, but most of the action takes
place in 1970s annexes that are falling apart: chairs and floors held together
with gaffer tape, radiators that don’t heat, toilets that don’t flush.
In September, a leaky ceiling collapsed on to an usher’s desk. A frame that once
displayed the menu for “the advocates’ dining room” has been empty for years;
when I find Silcott in an upstairs room in the spring of 2023, he is eating
salad from a plastic container.
There is a chance today’s trial may not go ahead. Others are running late and
Silcott is committed to another case next week, as is the judge. If they can’t
start, the complainant, who has been waiting for three years, is likely to
withdraw. Silcott and his pupil, a trainee barrister, run through transcripts of
phone messages in the hope that the judge will soon be free. The texts will be
useful, Silcott says, tracing the back and forth of the accused and his then
girlfriend: “You still did it.” “Did what?” “The incident.” “The ?” “The rape.”
The case rests on a question of consent. The defence will argue that even though
she said no – this is not denied – the way she rolled on to her front was
understood as a yes. The accused’s lawyer has asked if he can raise a previous
incident in their relationship. Silcott turns it into a mini-lesson for his
pupil. “In your eyes, is that a section 41, or not?” he asks him. A judge must
give permission for a complainant’s sexual history to be used in evidence.
Silcott’s pupil thinks. “Yes? He has to make an application to use that.”
Absolutely, Silcott says. “But would you let it in? Does it help or hinder him?”
He reminds the young lawyer of the case of Ched Evans, the Welsh footballer
whose rape conviction was quashed on retrial in 2016, after intimate evidence
about the complainant’s sexual history was allowed on appeal. Afterwards, more
than 40 MPs wrote to the attorney general demanding a change in the law. The
case set “a dangerous precedent” that how a woman “has behaved in the past can
be taken as evidence of the way she behaved at the time of the alleged rape”,
they wrote.
The door is ajar. Outside, the accused and his mother wait. I sit beside them
while the lawyers argue, their voices drifting along the corridor: “I’m not
being difficult.” “But what does it add?” The mother, wearing a black puffer
coat zipped against the draught, turns to her son and asks: “Did you rape her?
Was she crying?” It is not clear whether she is asking him or rehearsing him,
but he is short with her; he is trying to listen to the barristers.
When the trial begins, it is chaotic. Some members of the jury are mistakenly
given evidence from the judge’s previous trial, whose jury can be heard laughing
through the thin wall during deliberations. (I assume it is a low-harm trial,
but later learn it is a rape involving multiple defendants.) There are breaks
every time the jury from the previous case file in and out (there is no other
exit), and breaks when the previous jury pass notes to the judge seeking advice.
When he pauses the trial to hear their verdict – a pause that is an hour, then
two – the defence lawyer asks, exasperated: “Will we explain the delay to the
jury? This is the most disjointed trial I have been on for some time.”
The complainant gives her evidence from behind a red velvet curtain, visible
only to the judge, the lawyers and the jury of eight men and four women. Her
voice is steady, although she cries when the defence asks her to read their
texts: “I was in and out babe,” he writes. “You’re not my babe,” she writes
back.
The lawyer asks why the accused was so apologetic in his texts: was it because
she had confused him? Silcott objects: it is not up to her to say what was on
his mind. Unless a witness is vulnerable, he believes they are their own best
evidence, another reason he does not like the pre-recorded section 28s. “On
this, I’m an outlier,” he says. “Keeping witnesses out of court – the belief
that this is the priority has gripped everyone and I don’t agree.” In his
experience, live testimony secures more convictions: “There is something very
anaemic, very detached, about seeing someone cross-examined on screen.” Research
published this month appears to back him up: a study carried out by University
College London found 20% fewer convictions where pre-recorded evidence was used.
Filmed testimonies may also leave complainants at a disadvantage against the
accused. Today’s defendant is nervous as he takes the stand in a navy suit,
slipping one hand into a pocket. His mother sits where he can see her. Silcott
is precise in his questioning and presses him on the issue of consent. Did he
sometimes misread the signs? “I accept there was a misunderstanding.” Did he get
it wrong? “My understanding was she was consenting.” Why did he never say so in
his texts? “I can’t remember.” He had told the complainant’s mother, in a
transcript of a phone call, that he didn’t think it had been a traumatic
experience. Did he not think rape was traumatic? The accused mumbles. “Speak
up,” the judge says to him, and to Silcott: “This is not a private
conversation.”
The accused does speak up and a flash of anger translates into a strong speech:
“I think rape is a serious offence. If I had done it when she said no, yes, it
would be traumatic. But I believed she consented.” He scans the jury. “I know
our relationship better than anyone else here, because I was in it.”
It takes the jury just 35 minutes to reach a verdict, a record for Silcott. When
it is read out – not guilty – the accused is released from the dock and embraced
by his mother, the two of them collapsing to the floor in sobs.
When I speak to Silcott again in October 2023, he has won his latest sexual
assault case, with the sentence increased on appeal.
Silcott tells me he has no regrets about bringing the trial I watched at Inner
London crown court, with the young couple, and would charge it again.
Afterwards, the judge, a specialist rape prosecutor, had sent Silcott a note to
say it was “entirely appropriate” that the case had been brought. I ask whether
a younger, more female jury might have reached a different conclusion. As ever,
Silcott has no way of knowing. (I asked to speak to the complainants in both of
the trials I witnessed; the first was too vulnerable for an approach to be made,
Silcott felt, and the second did not respond.)
In the 18 months since we first spoke, the problems he identified in the
criminal justice system have become more acute. The court backlog now stretches
to 9,792 sexual offence cases, a 23% increase on last year, while a dearth of
lawyers and judges makes every trial date hostage to competing diaries. The
prison population is the highest it has ever been. As improvements are made in
police charge rates (largely as a result of Operation Soteria, a project to
reform rape investigations), more pressure is brought to bear on the courts. A
Rape Crisis report on the backlog heard from a student who had had her case
rescheduled 10 times after the defendant withdrew his guilty plea; somewhere
around the seventh postponed trial date, before he was finally convicted, she
had attempted to kill herself. Chaos inflicts its own cruelty.
The barristers’ strike ended in October 2022 with a 15% fee increase, a rise
Silcott describes as “correctional” after decades of stagnation. But the
problems of workload and pay remain. On an average annual income of £18,000 in
their first three years, many junior barristers decide they cannot afford a
career in the criminal bar. “It’s as bad as I’ve ever known it,” Silcott says.
“For the first time, I’m really struggling to keep to my deadlines.” He thinks
that judges have been a little kinder to prosecutors since the strike, however.
The solutions to what Amelia Handy, the author of the Rape Crisis report,
describes to me as a “catastrophic” collapse in the court system lie partly in
money, but more largely in a culture shift. The work needs to be better
supported (barristers experience trauma, too) and better valued as a practice
requiring empathy, cunning, imagination and stamina – not one that should fall
to the least in-demand or the most altruistic. The current state of crisis could
be a starting point for a more nuanced, less adversarial system.
If you fixed some of these things, Silcott says, the conviction rate would go
up. More lawyers would want to do the work – and he would urge them to. He isn’t
a specialist, by any means: “I do a maximum number of these cases, because that
keeps me fresh and interested.” But it is very, very rewarding. Sometimes, he
wants to grab a junior by the collar, one of the really good ones, and say: “Why
aren’t you doing this? You should be doing this. Because I can’t think of more
important work.”
