Criminal defence barristers like Ian Winter KC should not face public condemnation simply for vigorously fulfilling their professional duty to hold the prosecution to account, even when representing famous clients like Russell Brand, says Luke Gittos

It has been a tough week for Ian Winter KC, counsel for disgraced comedian Russell Brand. His client was convicted last Thursday of rape and three sexual assaults. On Monday, Brand was sentenced to ten years and six months. Whilst making  a point in mitigation, arguing that Brand’s behaviour did not constitute a continuous course of conduct, the Judge pushed back saying “the fact that he got away with it for so long is hardly mitigation, is it?”. 

The Judge was not the first person to stick the boot into Winter. He has been condemned for confronting Sunday Times journalist Rosamund Urwin outside Southwark Crown Court, apparently blaming her reporting for denying Brand a fair trial. He has referred himself to the Bar Standards Board. Reports have also emerged of his unsuccessful pre-trial abuse of process application, in which he accused journalists from the Times newspapers and Channel 4 of criminal conduct. His questioning of the complainants has been labelled aggressive and demeaning. Brand himself is reportedly unhappy with his representation and considering a new legal team.

These criticisms are misplaced. Consider the abuse-of-process application first. Brand faced extraordinary publicity long before a jury was sworn. An argument that this publicity might compromise the fairness of his trial was plainly worth considering. That is exactly what an abuse of process application can address: whether proceedings can fairly continue. Winter went further, alleging that the journalists’ reporting amounted to contempt of court and perverting the course of justice. That is a serious allegation, but it should not obscure the perfectly proper question of whether Brand could receive a fair trial after years of publicity. It was a reasonable argument to make, albeit that Winter made it in strong terms. 

As for Winter’s trial tactics, let us at least accept that he had a difficult job. The prosecution presented Brand as a serial sexual predator who had escaped accountability for years. Women had independently come forward describing similar conduct. That was a formidable case to meet. Brand denied the offences, maintaining that sexual encounters were consensual or that the alleged incidents had not happened. His defence necessarily involved challenging the complainants’ credibility.

You can’t call someone a liar politely

Winter did so forcefully. But it is difficult to call someone a liar politely. Where his instructions required him to allege dishonesty, he had a professional duty to put the substance of that allegation to the witness. A barrister cannot abandon an accused person’s defence because it makes for uncomfortable headlines.

Of course, that duty has limits. The rules on questioning complainants in sexual cases have changed substantially. Barristers cannot humiliate witnesses for sport. Judges warn juries against rape myths, including assumptions about how a genuine victim must behave. There is no automatic entitlement to ask any question simply because it might help the defence. But robust cross-examination remains essential, especially where the defendant disputes the truth of an allegation.

Imagine that your son or daughter faced a serious charge based on an accusation they insisted was false. You would want their advocate to test that accusation thoroughly; however unpleasant the process became

Imagine that your son or daughter faced a serious charge based on an accusation they insisted was false. You would want their advocate to test that accusation thoroughly; however unpleasant the process became. That principle does not disappear when the defendant is famous, unpopular or ultimately convicted.

Winter has acknowledged that his encounter with Urwin deserves scrutiny. Fair enough. His courtroom arguments can also be criticised on their merits. But treating every uncomfortable question and unsuccessful application as evidence of misconduct betrays a misunderstanding of criminal defence. Winter’s task was to make the prosecution prove its case. The jury convicted Brand after hearing that defence. That is how justice works. We should stop attacking barristers simply for doing their jobs.

Luke Gittos is a litigation partner at Murray Hughman