Reby Daniel - University of Law

How Depp v Heard brought to light the need for change in the UK’s trial proceedings

Recently, in 2018 the law around divorce and domestic abuse was a hot topic for the tabloids as Johnny Depp and Amber Heard were going head to head in their libel case involving a controversial domestic abuse claim, the classic case of ‘he said she said’ had everyone eager to see who will win as this case had been won by Miss Heard in the UK, but would be results be replicated in the US? After doing a deep dive into the case, listening to all available resources, getting some awkward looks at a party talking about how everyone’s favorite pirate may not be the guy we think he is; I came to a more concerning conclusion that the current English court system for sexual assault/domestic abuse is not at a good enough standard.

Recent advice to all judges in the England and Wales from Lord Justice Edis stated that judges “should consider imposing suspended sentences” for rapists due to prisons being full. In the UK it is already a difficult process to get a rapist convicted, with a rate at less than 2%. The trauma of being assaulted and then later finding out that your rapist will not get convicted or even if they are, will be delayed a prison sentence because prisons are full, potentially leading them at risk of harming more people.

Currently in the UK, a victim can consent to their counselling notes being disclosed in court as evidence, which has been the topic of controversy recently. In one article I read, a woman’s counselling notes were used against her; the details of the case were that her abuser was one of her dad’s friends who had assaulted both her and her sister when they were children, she had gone to counselling to seek some help processing her past trauma, that is when her counsellor confirmed she was in fact a victim of abuse, her sister and her had gone to the police to take this case to trial. They had asked for her counselling notes and in her words, she said “You don’t have to give permission, but the defence know if you’ve refused, and they can twist it to make it look like you’re withholding information from the court. I just felt like I wanted them to have access to everything, so they could see I was being completely transparent.” For starters, the fact that there are victims of assault who have this thought at the back of their minds when they are in counselling sessions is absurd. When attending a counselling session, they should not be thinking that whatever they say will be used against them in court, the purpose of counselling is to work through your troubles, the last thing victims want to do is walk on eggshells because what they say could potentially damage their case. Sadly, for this particular victim, this was the case as the defence attorney stated to her that “Your counsellor is the one that told you you’re a victim, so therefore you now think you’re a victim.”

The courts are also allowed to access a victim’s sexual history, even upon objections from the judge the court can draw adverse inference from this even though this is an irrelevant question. Section 41 of YJCEA 1999, prevents this question being asked in court but there are exceptions to this rule: where the defence can introduce it to rebut the prosecution’s evidence, where the case does not concern consent, crossovers of other sexual history occurring the same time the offence occurred, where consent is the issue when the evidence on the complainant’s alleged sexual behaviour is strikingly comparable to that which is said to have occurred during the event. These are narrow and broad exceptions; the defence can easily make a claim that asking this question is essential to the trial.

For the Amber Heard and Johnny Depp trial, the first trial took place in London. Depp was suing The Sun for an article they had released labelling him as a ‘wife beater’, he lost this case. After this an article came out from the Washington Post where Heard stated she was a victim of abuse in the past, it is important to note she did not mention Depp by name. Depp then sues Amber for this article, and they both arrive at the High Court of Justice; Amber being there to support The Sun and Johnny denying all allegations of domestic abuse. Now here is where I get a few side-eyes from people when I say - I support Amber here. Miss Heard had a substantial amount of evidence against Mr Depp, some being pictures, recalled account of events, text messages etc, the judge stated, “I have found that the great majority of alleged assaults of Ms. Heard by Mr. Depp have been proved to the civil standard”. Mr Depp doubled down by appealing this decision, both judges Justices James Dingemans and Nicholas Underhill ruled that the original hearing was “full and fair” and the judge’s rulings “have not been shown even arguably to be vitiated by any error of approach or mistake of law.”

Jack Sparrow was not about to give up that easily, his name has been tarnished, brands no longer wanted to work with him, he was being blacklisted in Hollywood. So, what does he do? Make a case in the US this time, now Depp’s path to victory was not an easily one, as we saw from the case in the UK. Depp had to prove three things, 1. That it was “false.” 2. That it communicated to someone else something “defamatory” and that it was “about” Depp. 3. That Heard intended it to be defamatory. 4. Then, by clear and convincing evidence (a higher burden), Depp had to prove that Heard made the defamatory statement either knowing it was false or was highly aware it was probably false. Unlike in the UK where we do ‘a balance of probabilities’ in the US they do ‘burden of proof’, this means that if the jury could just find one instance where Mr Depp had abused Miss Heard emotionally, physically, financially then she would have won. But they did not believe this occurred, not even once.

Having slightly touched the topic of the US court system, my argument is that jury’s going forward need to be vetted and trained before hearing a case. At an age of technology comes information and sadly false information, information surrounding assault myths that could be harmful to a case as this leads to assumptions and questioning if the victim is a credible witness. Were a jury to be vetted and trained this would mean more confidence for victims coming forward with their cases, having the courtroom be a fairer place to be and less traumatic for victims.

As discussed above there is a biased with jury’s due to rape myths, especially with cases of high profiled celebrities there may be a biased because one is more well known/liked than the other. Scotland is trialling the idea of a judge only trial for assault cases as the rape myths found in jury’s would not be present. Another proposed thought is having a whole separate court for people convicted of these offences, the main issue for victims that take their cases to trial is that the normal court proceedings are very traumatic for these victims, the proposed specialised court would cater to this so that everyone is trained well, and proceedings run smoothly. Personally, I believe giving one person that much power over such a heavy case is not the way forward, the idea of training a jury sound like a fairer system in the long run.

I do believe a big reform is needed around trial proceedings for cases of assault. Currently, the Crown Prosecution are recommending not to discuss sexual assault cases with therapist and if they do, they should prepare to have their notes shared in front of a jury. This needs to be changed. We cannot be living in a society where private and confidential information is shared, in front of a court room full of strangers and we certainly should not be advising people that have gone through a traumatic event to not seek help over it. The suggestions for training a jury before they hear cases is, in my opinion, the most suitable suggestion. Going forward, we as a society need to take into account the way we handle these proceedings and how they have a long term affect on victims, it may be just another day in court to us but a lifetime of reliving that day in court for them.

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Bibliography

‘England and Wales judges told not to jail criminals as prisons full – report’, Haroon Siddique and Vikram Dodd, Thu 12 Oct 2023

‘My Abuser Used My Therapy Notes Against Me During His Trial’, 22 July 2019, Sirin Kale

‘The problematic use of past sexual history as evidence in rape trials’, 3rd February, 2020, Kez Bhola-Dare and Jamie Fletcher,

Section 41 of the Youth Justice and Criminal Evidence Act 1999.

‘Johnny Depp and Amber Heard: A timeline of their relationship, allegations, and court battles’, 21 May 2023, Clémence Michallon, 

‘How the Johnny Depp-Amber Heard jury got it wrong — twice’, June 1, 2022, Danny Cevallos, 

‘Rape Victims Are Being Told They Can’t Go to Therapy’, 30 May 2019, Sirin Kale,