Law: Tell me - who's on trial here?

The case of the jury who couldn't decide has far-reaching implications for rape victims.
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The Independent Culture
LEGAL HISTORY was made last Friday in the High Court when a jury failed to reach a verdict in the first-ever rape defamation trial.

The case has shown how inappropriate it is to bring this type of action in the civil courts over allegations of rape. Two young people have spent three years of their lives wrestling with the claim, using resources that could well have been employed elsewhere and being subjected to untold emotional stress and trauma, only to be presented at the conclusion with a jury that could not make up its mind.

A civil servant, Glyn Kirpalani, had sued for slander his former girlfriend, known as Ms B (she may not be identified). The case concerned allegations made by Ms B to senior officials where they both worked, to the police and to her closest friends, that Mr Kirpalani had raped her during their 16-month relationship.

The action ended in deadlock. After nine days the jury, having heard full, dramatically different accounts of their relationship, was unable to come to a verdict. The foreman reported to Mrs Justice Smith, after the jury had been deliberating since the previous lunch time, that "it would be likely to take until hell freezes over" before they were able to reach agreement.

That was hardly surprising. Only two people - Ms B and Mr Kirpalani - were in the relationship and were present when the rapes were alleged to have occurred. It was perhaps asking too much of the "12 good men and true" to decide whether rape had occurred by hearing friends and colleagues tell how they had seen the couple behave at an office Christmas party, or by hearing extracts of poems and private love letters. So the claimant failed to get the vindication he sought and the defendant was not able to prove to the satisfaction of the jury that she had been raped.

It may seem strange that the onus lay with the defendant to prove her case although the proceedings were brought by the claimant, much to the distress of Ms B who had undertaken throughout - and even before the writ was issued - that she would not repeat the allegation. But the burden of proof in a defamation action lies with the defendant to show on a balance of probabilities that the allegations are true. So in fact, it was not for Mr Kirpalani to prove that he had been defamed, but for Ms B to prove that she had been raped.

Mr Kirpalani was represented at trial by the solicitor-advocate David Price. Ms B was advised first by her trade union lawyer, and in the final stages of the case and in the run-up to trial by the City media law firm Stephens Innocent.

Legal aid is not available for any part of defamation proceedings and it is well known that these actions can be hugely expensive. It is understood that Mr Kirpalani had to use his savings, while Ms B used a conditional fee agreement and the free representation of her barrister, James Price QC. Whatever the financial arrangements, there has been a massive emotional cost to both sides.

They have had to lay bare the details of their personal lives and endure the humiliation of hearing the person they once loved talk in none too pleasant terms about their relationship and sexual peccadilloes.

Also, both parties have been subjected to the intense glare of the media spotlight. Journalists were inside the court most days, taking down the details to titillate their more salaciously minded readers, and photographers were outside snapping picture after picture as the parties went in and out. Interestingly, the judge ruled that Ms B was entitled to anonymity as any complainant would be in a rape allegation. Though Mr Kirpalani's lawyers had applied for an order to prevent publication of his identity of their client, this was refused.

As the jury was unable to reach a verdict, no case law has been established and the legal implications remain unclear. But in future, should the Crown Prosecution Service, for whatever reason, not proceed with a prosecution, the complainant may well find herself facing cross-examination in defamation proceedings - in effect, feeling as though she were the criminal and not the victim.

The writer is a defamation specialist solicitor at Stephens Innocent in London and acted for Ms B.

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