Another Rape Acquittal

On Friday 13th May Cathy McCulloch won an acquittal in what turned out to be another “he said – she said” rape trial at Durham Crown Court. Cathy established in cross-examination that the one alleged independent witness could not possible have seen what she claimed to have seen, so once more the key issue was the credibility of the complainant’s and defendant’s version of events.

The jury returned a unanimous not-guilty verdict in 43 minutes.

Many thanks to the Durham Office of Chivers Solicitors for their instructions.

 

15 May / 2017
Author Clerks
Category Uncategorized

Alcohol and Casual Sex can be Legally Toxic – Especially for Men

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Rape is evil. The very word is highly emotive. There are, however, many defendants who are neither evil nor rapists. They just did not have the armour of knowledge to guide them to the right decision.

The Courts have thankfully found that “Stranger Rapes” are extremely unusual. Most rapes which find their way into the Court system involve two parties who are known to each other – it is merely the level of acquaintance which varies.

Several of my recent rape cases have been of men accused of rape because they have had sex with a woman who was under the influence of alcohol.

I have recently said in a press conference “This f*** buddy culture must stop”. My vivid turn of phrase (using a term picked up from a client years ago) caught the press’ imagination, and sparked some valuable debate. Now that the dust has settled, here are some thoughts on the issues. What insight I have is as a Barrister, so my own opinions that follow are mainly from that perspective. Others have and will continue to lead on the moral and other approaches to the issues.

Background

Let me go back to the beginning of all this. Back in August 2016 I wrote a blog about defending a man who apparently had no defence. I met him on the first day of trial, and within a few hours knew for certain that the complainant had made up her allegations by plagiarising 50 Shades of Grey. The press picked up on it and the story went viral. I had a lot of press interest, and even found myself being followed into Court.

Shortly after that I was instructed by the Durham Office of Chivers Solicitors in an alleged rape in Durham. That case re-awoke press interest as my client was alleged to have made a scenario up and then re-enacted that. For the record that is simply not what happened, and not what the Crown were saying happened. It was not part of the facts of the case.

On 16th December 2016, the jury were discharged, having been unable to reach a verdict. On 13th January 2017 at Durham Crown Court, the Crown chose not to proceed to a second full trial, and a verdict of Not Guilty was recorded against my client. The press were in attendance and asked for a press conference.

After the conference had concluded, conversation moved on to topics unrelated to this case. I was asked what I thought about Universities, alcohol and casual sex. It was at that point I made the comment about “This f*** buddy culture must stop”. I then went on to speak about the dangers for young men of mixing alcohol with sex. Some of the ensuing press coverage is linked at the end of this blog.

The Legal Issue

The mixture of alcohol with sex can be toxic. It can come back and haunt you. It can give a criminal record to even the most lovely person – who would never deliberately do anything to hurt anyone, let alone knowingly commit the evil act of rape.

Let me explain: If a young man and a young woman are both equally drunk, and they then have sex; if the young man wakes in the morning and says “I really didn’t want that” – little will or does happen to the female. However, if a female wakes in the morning and says “I really didn’t want that”, she can make an allegation of rape to the police. The young man and his family will find their lives turned upside down and he will have to remember really intimate moments in his life which he may or may not be able to explain clearly and in forensic detail to a jury.

The law is simple. If a woman has had a drink and says after sex she did not have the capacity to consent, the male can be accused of rape. A male being drunk is no defence. The real issue is that there is no defining term of what is “too drunk”. The test is whether the drink affected a woman’s ability to make a free choice to have vaginal, oral or anal sex. If it’s the case that the complainant was so drunk she was or became unconscious, then she would not have been able to make a free choice and therefore she could not have consented.

Young men don’t seem to realise this. With Drink Driving, we all know that if you blow into a breathalyser and are over the 35 micrograms per 100 millilitres of breath, you are over the limit and can be prosecuted. There is no such guidance for consensual sex.

I am not setting out to, nor intending to change the law. I merely want to raise awareness – to help prevent young lives being ruined for lack of knowledge.

The Need to Spread the Word

Whilst there is some (but arguably not nearly enough) awareness of the need to keep young women safe at and after parties, I am shocked at how few young men are aware of the risks they run. Even if the female appears to him to be consenting, he can still be found guilty of rape. Young lives are being turned upside down – not just those of the parties to the case, but also of their families and friends – regardless of the verdict after a full trial.

The word really needs to be “got out there” especially in Universities.

It appears that people know about the dangers of drugs. They know about the dangers of alcohol. They know about the dangers of alcohol and cars. They know they cannot drug (Roofie) someone, or mix their drink to have sex. They even know that they should have safe sex – but what no one seems to know is how sex and alcohol are a ticking time bomb. The wrong decision can ruin lives immediately – or many years later.

Parents will tell their children about the birds and bees but I think it would be better if they spoke about the birds, the bees and alcohol. The same day the Times printed its story and editorial linked below, I was dumbstruck as I walked past a street-side café to hear a father say to his late-teenage son “I’ve never known how to talk to you about this, but now that it’s in the paper, maybe it’s time”. In between them on the table was Gabriella Swerling’s article. If, however, a parent is not sure as to how to address this particular point – find this excellent video made by Thames Valley Police called “A Cup of Tea”. Show it to them, and the discuss it. You might just be saving their life from being turned upside down by a Criminal Trial and possible conviction with an immediate custodial sentence after that.

I don’t want to come across as some old biddy – I do drink alcohol and I lead a normal life. I’m not trying to interfere with the way young people live their lives, I am trying to keep them safe. Notwithstanding the focus of this piece on young men, I am equally passionate about protecting young women. I am not making any comment about how much young women feel is appropriate to drink on a night out as there is no law on that and it is not my business. What I would say to them is make sure you are safe. Make sure you have a friend with you who can and will look after you and ensure you get home safely.

Times Articles
Opinion Piece by Libby Purves – The Times Monday 16th January 2017
“Durham’s ‘conspiracy of silence over rape’” – Gabriella Swerling – The Times Saturday 21st January 2017
Editorial – The Times Saturday 21st January 2017

28 February / 2017
Author Clerks
Category Uncategorized

Chance Phone Call Saves Youngster from Kidnap

Like most Criminal Barristers, Cathy McCulloch both prosecutes and defends. One recent case at Ipswich Crown Court was reported in the Sun.

27 February / 2017
Author Clerks
Category Uncategorized

Acquittal at Durham Crown Court in Alleged Student Rape

Following a 2 week trial, including a prosecution case which received widespread and lurid press coverage, Cathy McCulloch’s client was acquitted of 3 counts of rape. Defence was reasonable belief that the complainant had consented. Following a forensic dissection of the prosecution case in a closing speech described by a member of the national press as “the most powerful I have ever heard”, the jury were unable to reach a verdict and discharged on 16th December 2016.

At a hearing on 13th January 2017, the Crown offered no evidence. Counsel was instructed by Jonathan Hanratty from the Durham Office of Chivers Solicitors.

For examples of press coverage during and after trial, try a web search on “McCulloch Durham student rape”.

 

 

 

24 February / 2017
Author Clerks
Category Uncategorized

Fifty Shades Incest Acquittal

o-FIFTY-SHADES-OF-GREY-scalesIt is unusual for a Barrister to write in the terms which follow, but what follows was exceptional, and the result of very close teamwork between Barrister and Instructing Solicitors (JD Solicitors of Willenhall). Cathy McCulloch, instructed through her door tenancy at Church Court Chambers, explains: 

Last week my client was dramatically found Not Guilty of 8 counts of incestuous rape over a six year period. His daughter had given a compelling interview to the police and my client had absolutely no real defence other than “I did not do it”.

I was brought in very late: 2 days before the ground rules hearing, a week before trial. The week before trial I spent hours poring over the papers and drafting three separate major legal arguments. The complainant’s interview was going to be really tough to crack. She had described not only what her father had allegedly done, but how her body felt as a result. The only odd thing was the use of certain words, phrases and descriptions of how she felt which seemed beyond her years.

My first conference with the client was on the day of trial. Most of what my client described in response to my questions was unremarkable – apart from her favourite book – about a millionaire who takes a young woman under his wing and “teaches her about art”. He had no idea what Fifty Shades of Grey was about.

Neither I nor my instructing solicitor’s representative had read the book (honest!). She bought a copy, and overnight found “too many striking similarities between the ABE [police interview of the complainant] and the book to be a coincidence”.

On Day 2 the Judge adjourned at lunchtime so I could spend the afternoon and evening in detailed analysis of the similarities prior to my cross-examination of the complainant. I prepared 2–3 hour cross-examination plan, followed by an addendum to our Defence Case Statement.

On the morning of Day 3, I started my cross-examination gently to put the complainant at ease. She agreed her father was strict, and that she was really annoyed with him for “ruining her life”. I then went straight to my final question – that she was so angry with her father that she had made this all up. She wavered. I raised the striking similarities between her interview and the book. She suddenly broke and said I was absolutely right. She had made the whole thing up because she was angry with her father and wanted to teach him a lesson. I asked her whether she had got all the ideas from 50 Shades of Grey. She confirmed this book, and others – which she named. After seven minutes we were finished.

The Prosecutor re-examined on each point. She was adamant that none of the allegations were true. The jury were given a break, the prosecutor took instructions and no evidence was then offered. The Judge directed the jury to acquit, stating that this case is “unique” in the whole of his career at the Bar and Judiciary.

Many thanks to JD Solicitors (Nikyle Bains) and to Church Court Chambers for briefing me in this matter.

For a more technical (and much shorter) version, see here.

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05 August / 2016
Author Clerks
Category Uncategorized

Church Court Chambers – Door Tenancy

Chambers are delighted to announce that Cathy McCulloch has accepted an invitation to join Church Court Chambers, Temple as a Door Tenant.

Whilst Cathy’s existing practice will be unaffected, as a Door Tenant she will benefit from the support of one of London’s powerhouse sets in managing her growing case load.

 

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07 March / 2016
Author Clerks
Category Uncategorized

International Criminal Court – List of Counsel

Further to Cathy McCulloch’s recent admission to the List of Defence Counsel of the UN Special Tribunal for Lebanon as Lead Counsel, she has today been included on the List of Counsel before the International Criminal Court. The List of Counsel is created and maintained by the Registry of the ICC. Those on the List are eligible for appointment to represent suspects/accused or victims before the Court. As at 16/11/2015, there were 594 advocates worldwide on the List.

07 March / 2016
Author Clerks
Category Uncategorized

UN Special Tribunal for Lebanon – Defence Counsel

Chambers are delighted to announce that on 23rd December, Cathy McCulloch was admitted to the List of Defence Counsel of the UN Special Tribunal for Lebanon as Lead Counsel. This appointment recognises her talent and professional skills as an advocate. She is one of only 166 advocates worldwide whose names appear on this list.

29 December / 2015
Author Clerks
Category Uncategorized

Direct Public Access – Private Client Criminal Defence and Civil Litigation

Cathy McCulloch has accepted direct instruction under the Direct Public Access scheme for several years. She is now approved by the Bar Council to conduct litigation. She is one of very few practicing Barristers who can to provide a complete service directly to the public for both Private Client Criminal Defence and for Civil Litigation

14 August / 2015
Author Clerks
Category Uncategorized

Update on Direct Action Mon 27th July

This Chambers continues to support #Unity to #savelegalaid and #saveukjustice.

We support the Solicitors’ Protocol 2, and continue not to accept returns.

27 July / 2015
Author Clerks
Category Uncategorized