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11 Apr 2016

Edward Grange writes crime analysis for LexisNexis Family Law – Part Three

When Helen stabbed Rob (Part Three)

This article was co-authored by Abigail Bright.

Crime analysis: In this third instalment, Abigail and Edward further advise Helen. Abigail Bright is a barrister at Doughty Street Chambers, and Edward Grange is a partner at Corker Binning. Both are practitioners in serious crime. Helen has now been charged with the attempted murder of her husband, Rob, as Abigail and Edward had predicted was liable to happen.

To catch up on the case so far, see:

Yesterday evening, Helen was charged with attempted murder. How strong is the case against her?

Police are gathering evidence apace against Helen. The case against her is looking increasingly more difficult to defend. Arrested earlier this week for what was described by police as ‘wounding’ (they might have added ‘with intent to cause grievous bodily harm’), Helen has now been charged with attempted murder.

The strength of incriminating evidence against Helen is mounting up. Most significantly—or disastrously, some, but not us, might say—Helen admitted in her second police interview recently having said she wanted to kill Rob. She blurted that out in interview after having relied on her right to silence by answering ‘no comment’ to all questions before saying that. Listeners know she was represented in that interview by a lawyer. Listeners know she was advised by that lawyer to tell police everything that had happened to her that may be relevant to how the struggle started. Helen rejected that advice. For reasons we discuss below, we think her lawyer should have been more robust at the police station and asked police to postpone starting the interview until Helen was in a fit state to be interviewed. In any event, Helen then went on to reply ‘no comment’ to questions until she admitted to having said she wanted to kill Rob. Police elicited that admission against interest when they ‘put’ to Helen—in a series of effective, short questions—what Ursula, Rob’s mother, had told police that Helen had said. A number of significant points arise.

First, Helen’s admission in that police interview demonstrates her recent hostility and venom toward Rob. Was that hostile remark about Rob a mere puff, to be disregarded as naught? It will be no easy feat to try to persuade a jury at a trial that Helen was only joking when she said those words. Neither Helen nor Ursula suggested to police that Helen had been joking. More likely, and consistently with the truth of what listeners know was uttered, the defence at trial will be that Helen had said those words—but not as a statement of criminal intent. Very differently, the defence may seek to persuade, what was said was no threat or intent to kill but was a momentary outburst, said in the heat of the moment and not significant.

Secondly, and further damaging to Helen’s defence case, police will reasonably take the view that, if Ursula was truthful, as Helen accepts, to allege that Helen had said those words, Ursula has proved to be reliable as a witness in at least this one, important, regard. If Ursula was correct and reliable about this detail, what else is Ursula correct and reliable about? Her judgment as to what she may describe as Helen’s neurotic and unstable character? Her judgment as to what a reserved and inoffensive man of good character Rob is?

How might Helen’s defence team prepare for her trial?

To defend Helen ably and effectively, Helen’s eventual trial counsel (counsel in Silk leading a junior counsel, perhaps) will need to think laterally and carefully—by donning a prosecution hat. Helen’s defence team will no doubt prepare for her trial by looking at the height of the prosecution case with an eye to trying to answer and so diffuse it. Doubtless, the prosecution will do the very same, vice versa, when it prepares for the trial. What the defence know—based on Helen’s instructions to her own counsel and solicitor—is that Helen tried to use on Sunday an ‘emergency’ mobile telephone, given to her by Kirsty, to call Kirsty when Rob was upstairs footling round with Henry. Kirsty can give a statement and then oral evidence in court that she did indeed give what she understood was an ‘emergency’ telephone to Helen because she feared for Helen’s safety. Unfortunately for Helen, there is no evidence to support or corroborate her own word that she tried to make that telephone call. Listeners will recall that Rob appeared before the mobile telephone call connected. There is, then, no independent or objective record of that attempted call. (Rob bellowed that he was furious that the mobile telephone had been given to Helen by ‘that manipulative, man-hating dyke’). The jury will either accept that what Helen says may be true about trying to make a call on that mobile telephone—or will reject it as improbable or fabricated. We think the very fact that Kirsty gave Helen what the two understand was an ‘emergency’ telephone is powerful evidence in itself, but no panacea.

Is there independent, objective, expert evidence as to Helen’s ‘fight or flight’ state of mind moments before the stabbing? Practically, Helen’s reluctance to access a lawyer at Ambridge police station—who would have been a trigger for such an urgent referral—has now delayed any such course. Police did not themselves take the view that Helen should see a mental health practitioner in custody, albeit their priority was her hospital admission to protect her pregnancy. We think it is a missed opportunity that Helen was not assessed by a mental health clinician before her interview, while at the police station (or when taken to the hospital). Had we been advising Helen while she was at the police station, we would have repeatedly made clear to police that this was our firm view. Police may well not have resisted postponement of Helen’s interview. If it can later be argued that the conduct or circumstances of a police interview amounted to being unfair, that is a reason, at a trial, to apply for that interview to be excluded from evidence as inadmissible.

In due course, there is another route to expert clinical assessment of Helen. It has the virtue that, if commissioned by the defence, the report of any such assessment will remain confidential unless disclosed and relied on by the defence. It is open to the defence to apply for public funding (if Helen is reliant on legal aid public funding of her defence) or else privately pay for Helen to be assessed by a suitably qualified forensic psychiatrist. For that assessment to take place, Helen would have to give her consent. Listeners know how headstrong Helen is—or used to be, before Rob’s machinations got the better of her. Helen has already acted against her own interests in two significant ways. Against the advice of Detective Sergeant Madeley, Helen refused free and independent legal advice in the form of access to the duty solicitor before her police interview. She lost valuable hours while in police custody before she changed her mind and accepted help from a lawyer.

We take some solace in seeing that a few hours of separation from Rob has already proved empowering for Helen. That said, impression matters at a police station and it matters in court. Helen is presenting as resilient and robust. Those presentations are consistent with that of a brutalised, traumatised victim. But will police and the courts pierce the veil and see the reality in this case?

Which defence witnesses might come forward?

The defence (and the prosecution: there is no property in a witness) knows where to find Kirsty. She is capable of giving evidence that she thought Helen needed to have an ‘emergency’ mobile telephone lest she had to rely on it to protect herself against Rob. What may well neutralise this point for the defence at a trial is that Kirsty has already spoken to DS Madeley and given a statement that will be relied on at trial by the prosecution. DS Madeley asked whether Kirsty regarded Rob, generally, as a violent man. Answer: no. But he plays mind games, Kirsty added. DS Madeley then asked whether Kirsty thought Rob was violent, generally. Answer: no, without caveat. Kirsty is likely to be called by the prosecution as a prosecution witness. If she is not, and if the defence themselves seek to call Kirsty as their witness, the prosecution will know that Kirsty gave these answers to police. Nothing would stop the prosecution at a trial asking Kirsty about her answers to DS Madeley’s questions, as a corrective or in rebuttal to what the defence may contend or say about the ‘emergency’ plan.

Pat Archer has all but ruled herself out as a defence witness. Pat showed gross misjudgment when she told police who arrived at Bridge Farm that Helen had previous mental health issues and showed ‘fragility’ of mind. Perhaps if Pat had watched a few more legal eagle programmes, she would know she should have said to police that she would value being interviewed by appointment, at a time convenient to police, without family and friends present. Doing that might have given Pat much-needed time to think. Pat should have known that her speculation may well yet prove damaging to her daughter. Why didn’t Pat let police investigate what may or may not be recorded by Helen’s GP or in other medical files—a far more reliable way than speculation to evidence such sensitive information.

Who knows what Henry will say? He has been interviewed by specially-trained police officers whose training has equipped them to interview young children. This interviewing technique is designed so as to achieve the best evidence a witness is capable of giving. What has Henry seen? What will police, the CPS and a jury make of what Helen told Henry when he saw an unconscious, collapsed Rob—that ‘daddy is sleeping’?

Predictions for the trial?

The plot is fast developing. Helen is hurtling toward conviction at a trial. She needs to realise this and proactively start to lay the foundations of her defence case at a trial. We would advise Helen to listen to her lawyer, take stock, think carefully, and limit the avoidable damage caused thus far to her defence case. Brutalised women are routinely convicted in the criminal courts of a host of ‘domestic’ offending in circumstances whereby they have themselves suffered abuse, degradation and harm. It is not enough that the police, the prosecution or the jury may have sympathy for a defendant. To pave the way for her acquittal, Helen needs to plan her response to the prosecution case carefully. She may yet feel—and be—incapable of doing that. Helen may (subliminally) feel that she has moved from one kind of oppression and authority (Rob’s control of her) to another kind of oppression and authority (which may be engendered by being held in a police cell; being separated from Henry; not knowing whether or when she will leave custody). Alongside preparing proactively in her own defence, Helen is now reliant on the insight and experience of police officers (which may not be forthcoming) and the sensitivity and wisdom of the courts to help her to say what really happened. We would help her to do that.

Is David Archer the key to unlocking this case?

Unlikely. David Archer is, though, very obviously, the reason why listeners reliably turn to the wireless for everyday fantasies of farming folk. In an idle moment, listeners may wish for all men to be cut of David’s cloth. His character description attests to the man. ‘Level-headed and dependable, easy-going David can reveal powerful emotions, as when he took the law into his own hands and shot a badger he suspected of being a carrier of bovine TB.’

Interviewed by Alex Heshmaty.

This article was originally published by LexisNexis Family Law.

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