Bad Girls: A Legal Viewpoint
by A. Konig

This analysis will attempt to explore and clarify the legal context that underpins Bad Girls.

The prison is the most symbolic and powerful symbol of the coercive power of the state. The punitive aspect of the prison experience is often separated from the legal censure that attaches to defendants before they enter the penal system. However, this initial legal censure—the prologue, if you will—is both relevant and central to the characters' journeys in Bad Girls, and throws new light on old stories.

Perhaps one of the most interesting stories is that of Nikki Wade; an inmate both innocent and guilty, both victim and offender. It is this character, surely, that truly embodies the idea that the coercive power of the state must be wielded responsibly; that injustice must be confronted and interrogated. This notion, therefore, begs the enquiry: what injustice does Nikki Wade suffer? What road led Nikki Wade to the doors of Larkhall?

What happened to Nikki?

Nikki Wade killed a police officer (DS Gossard) who was in the midst of attempting to rape Nikki's girlfriend (Trisha).

In legal terms?

Nikki was convicted of the common law offence of murder. She would have been given a life sentence—which is mandatory—for this crime. However, life sentences do not literally mean 'life' and her minimum tariff was set at 10 years [minimum time served before the opportunity of parole].

The ingredients of murder are twofold.

Actus reus refers to the physical manifestation of the crime; the conduct itself. Mens rea refers to the state of mind of the defendant.

Both elements must be satisfied in order to convict a person of the common law offence of murder. The actus reus of murder and manslaughter are the same, this being unlawfully killing a reasonable person who is in being and under the King's Peace.

Let's unpack the important aspects of this definition. "Unlawful" relates to the fact that some killing is lawful, for example if there is a proven and accepted justification, such as self-defence. The fact that Nikki was convicted of murder means that no justification was accepted for her actions. "Killing" seems self-explanatory, especially in Nikki Wade's case, but it means that the defendant's actions must have been the legal cause of the death of the victim. This traditionally becomes complex when we have multiple causes. The case of McKechnie (1992) 94 Cr.App.R.51. provides an interesting example: the defendant hit the victim over the head with a television set and the injuries prevented the doctors operating on the victim's duodenal ulcer. The medical cause of death was a burst duodenal ulcer, but the defendant was nevertheless held to have legally caused that death. A "reasonable person" who is "in being" means that the individual must be a human being capable of independent life: an unborn foetus for example, cannot legally be a "reasonable person".

Mens rea is more complicated in both form and substance. Legal blame must only attach where there is responsibility. Competing conceptions of responsibility shape which indicators of blame are deemed important by the courts and by society in general. An "indicator of blame" essentially means a factor that points to an individual's culpability for a crime. For example, motive (one indicator of blame) would focus the court's attention not on the act itself, but the reason for the act. Other indicators of blame are someone's capacity to choose right from wrong, which might take into account mental state, age and so on. If the law takes note of an indicator of blame—it is then relevant in deciding whether to hold the individual in question legally responsible on that basis.

With a "character conception" of responsibility, which places emphasis on motive, a laudable motive might exonerate a heinous act under this scheme. English law has traditionally rejected such an approach and instead adopted the "capacity conception" of responsibility where blame is placed at the feet of those who have control over their actions and have chosen to commit a crime. The process of choosing to commit a crime is a mental process and this mental state is known as mens rea. This process is different for each crime.

In murder, it can take two forms: intention to kill, or intention to grievously harm. The latter has traditionally been controversial, in that an individual not intending to kill may nevertheless be convicted of murder when his actions cause death, rather than grievous harm. Of course, "intention" itself is difficult to define in practice, but the case of Hyam [1975] A.C. 55 held that foresight of death or grievous bodily harm as a highly probable consequence of one's actions was sufficient to constitute the mental element of murder. This is controversial, because recognising there is a risk that someone may die by your actions and intending that they die are obviously different mental processes.

It would seem that Nikki Wade's killing of DS Gossard fulfils both the actus reus and mens rea elements.

Why does this sit uncomfortably with us?

A conviction of murder does not necessarily arise just from satisfaction of these two elements. There is a genuine sense of difficulty in reconciling the legal condemnation Nikki received with the act that Nikki committed. We might say that the death was an accident; she only meant to stop DS Gossard from assaulting Trisha. We might alternatively say that the death was intended, but it was in done in defence of another. However, we might also say that Nikki was provoked into killing DS Gossard; we know he laughed at her before she inserted the bottle into his neck. These options give rise to a number of legal possibilities that lawyers call 'defences'. A defence can completely exonerate the crime—resulting in Nikki walking free from the court without any further involvement from the law or prison authorities—or a defence can be 'partial'. A partial defence will turn a crime of murder, for example, into a lesser crime, such as manslaughter.

Why weren't these possibilities explored in the initial trial?

There are three possibilities that are by no means mutually exclusive. Firstly, it may have been an intentional device on the part of the writers in order to create a convincingly realistic successful appeal. This, however, tells us little about why in a real legal sense; it gives us no understanding of the legal issues involved. Assuming Nikki's story is one that echoes the plight of an identical case in the real world, our second and third possibilities reveal themes that are at the heart of Bad Girls. The second option looks to the effect of discrimination; a theme pertinent to Nikki's position as both a woman and a lesbian. Thirdly, we have the possibility of professional incompetence; a flaw in her initial legal representation.

Helena Kennedy is one of the most articulate proponents of the argument that discrimination and prejudice mar the justice of the English legal system. It pervades at all institutional levels and explains why Nikki was arrested and her story not given credence, and why her trial resulted in a conviction. In Ann Jones' "Women Who Kill"[1] it is explained that moral panics about women and crime 'coincide with the periods when women make strides towards equality and that such panics may be a crude and perhaps even unconscious attempt at controlling these advances.' Helena Kennedy poses the question: Why is it that we feel differently about women committing crime? "It always seems to me that crime is seen as an inevitable extension of normal male behaviour, whereas women offenders are thought to have breached sacred notions of what is deemed to be truly female."[2] Women are judged in reference to a limiting mesh of ideals and under this view, Nikki offended twice. She broke the law, and she broke social conventions; being a female and committing a violent act. An additional reason Nikki's crime crossed boundaries is undoubtedly due to her lesbianism. In killing a man, and allegedly a sexually virulent man, Nikki's crime is the ultimate manifestation of the wider societal stereotype (and fear) that lesbians don't need men and in fact, they hate them.

Does the notion that Nikki was poorly represented at her original trial take away from the relevant theme of discrimination? Indeed it may, given that professional incompetence can successfully explain Nikki's predicament without needing to rely on institutional prejudice to explain the injustice.

Why was Nikki not placed upon the stand to give evidence that would almost certainly have pointed to a defence that either partially or wholly exonerated her? Why wasn't the issue of provocation put to the jury? Why did the judge not raise the issue? Why was Nikki's damning "and I'm glad the bastard's dead" statement not challenged given that it was extracted from her after implications of due process and police abuse?[3]

Perhaps it makes Nikki's story less meaningful, but I would argue that Bad Girls actually provides a more significant narrative if prison becomes the consequence of professional incompetence and human fallibility. It emphasises Nikki's struggle with the prison as an institution almost entirely separate from the legal system that sent her there. It also reinforces the idea that trust can and must be placed in the right people; as Nikki places her trust in Helen and finds salvation, this mirrors the preceding inverse situation where faith was placed in a profession and a system that let her down.

Of course, discrimination is a facet of error and fallibility, and it does seem disingenuous that the creators of Bad Girls had deliberately wanted to imply only that malpractice—over and above prejudice—be the very root of injustice. It's worth, at least, briefly exploring how discrimination may have informed Nikki's experiences within the legal system, although this will be hesitant as it will involve some speculation.

From the moment the trial begins, any speculation we undertake is more dangerous and less indicative of any real discrimination. It is highly unlikely her own legal team were disgusted by her sexual orientation and actively sabotaged her trial, and the true, legal injustices she suffered (no defence raised, no opportunity to be put on the stand to explain) were faults of her legal team. It is undoubtedly true it took a female, feminist legal team to win her appeal, but they were also competent. We have two final possibilities: the prosecution were complicit in the suppression of evidence, and the trial judge allowed prejudice to affect his decision not to direct the jury to defences they should consider. Both scenarios are possible, but neither is explicitly referenced in canon. However, I think it is sensible to consider Nikki's journey and experiences as affected—to what extent, unknown—by prejudice and discrimination.

How should Nikki's trial have been handled?

There are various ways to a challenge a murder charge when the physical act of killing is unexplainable. The two most relevant to Nikki's case are:

  1. voluntary manslaughter: provocation
  2. self defence

We will consider voluntary manslaughter first. This was the way Nikki's original conviction was challenged at appeal. Punishment for manslaughter can vary from imprisonment for life (Offences Against the Person Act 1861 s5) to an absolute discharge (no punishment). Voluntary manslaughter acknowledges that the accused killed with "malice aforethought" (an intention to unlawfully kill or an intention to unlawfully cause grievous bodily harm) but there are factors which the law regards as mitigating the gravity of the offence. Provocation is one of those factors.

Voluntary manslaughter is not something an accused can be charged with. Nikki and her legal team would have had to raise provocation as a defence to the murder charge. A successful plea of provocation would result in a conviction of voluntary manslaughter.

What does provocation mean?

Provocation means a sudden loss of self-control (A-G of Ceylon v Perera [1953] AC 200) and can only be pleaded in relation to a murder charge. The defence makes allowance for situations where the law believes there is "proper occasion" for anger where the death was an "overreaction" but that overreaction was not gross. Provocation was largely fashioned by the courts, which means that it is known as a common law defence. However, Parliament has had a hand in shaping it[4] and these elements are required to prove its existence:

  1. actually causes in the defendant a sudden and temporary loss of self-control as the result of which he kills the deceased
  2. was enough to make reasonable person do as he did
  3. enough to make that reasonable man to suffer such a loss of self-control (c is the same as b)

It has proven apparent, in English Law, that provocation is usually only successful where the act is done in the heat of passion and that anger is not the only relevant emotion; frustration and despair can also play a part in the provocation. Provocation will not be successful where the killing contains an element of deliberation, reflection or premeditation. However, it is not necessary that the accused completely loses control to the extent that he or she does not know their own mind.

One thing may be glaringly obvious to readers at this stage; Nikki's situation and case falls almost perfectly into the parameters for provocation. There is definitely a compelling argument that her initial legal team fundamentally failed her in neglecting to put this issue to the jury. One can immediately see the potential difference it might have made to the outcome of the trial. Instead of a murder charge, resulting in a mandatory life sentence, the judge would have had the discretion to choose whatever sentence he felt was most appropriate ranging from life imprisonment to walking free from court.

The standards for provocation are legal standards constructed from a male perspective and women have had many problems fulfilling the criteria. Women, for cultural and physical reasons, are far less likely to respond to provocation immediately. But, as Helena Kennedy argues, the legal standards are fashioned on "instant ignition"; typically a male response to anger. A women who poisons her abusive husband as he sleeps because she is simply not strong enough to take him on after he has battered her, will not be able to argue he provoked her, no matter the degree of her despair. She is simply not "hot-headed" enough to experience the sudden and temporary loss of self-control necessary to fulfill the provocation standards. In fact, it is somewhat ironic that Nikki Wade experiences—unusually in statistical terms—an immediate, passionate, hot-headed overreaction that perfectly fulfils the provocation criteria. The defence is forgotten—deliberately or negligently—in the froth of her murder trial.

The other alternative is that Nikki could have pleaded a whole defence; this means that if successful, she would have been completely exonerated of the crime. The most obvious choice would be "public or private defence" also known as self-defence. There is much that could be discussed about this defence; it is usually used by law enforcement when injuries and fatalities occur during the lawful effect of arrest. It is therefore very important that the defence is clearly defined in order that law enforcement aren't given the green light to subdue, abuse and injure indiscriminately and unreasonably.

For our purposes, Nikki would have to show that the force used was "reasonable in the circumstances", in either defending herself or another from imminent attack, or preventing the commission of an offence. This means that the use of force was justified (was there a need?) and that the force used was not excessive (objectively unreasonable in the circumstances?).

"I think they were wrong not to call you, it always makes you look guilty" (Claire)

Nikki's solicitor makes a very interesting point when she informs Nikki that her silence at trial almost certainly compounded the appearance of her guilt. It is a signpost to an initially ineffectual legal representation. However, it is also a nod towards the Criminal Justice and Public Order Act 1994 (section 35) which specifically allows for an adverse inference to be drawn by the jury should the defendant not take the stand in her own defence. The section specifically states: "Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question."

The italicised passage is the most relevant part of this section. The phrase "inferences as appear proper" has been taken to mean that the defendant's defence will not stand up to cross-examination by the prosecution. In layman's terms, that the defence is weak or fabricated, or the defendant will be easily angered by the prosecution's questioning. Loss of temper in court is usually—and sometimes unfortunately—damning. What is more, when the defendant has a specific defence, such as self-defence, that adverse inference will be stronger.

Nikki reveals that she was advised not to give evidence in her own defence because of her inability to hold her temper. The result was the jury's entitlement to view her silence as indicative of likely guilt.

Overview of the Appeals Process

It's important to understand that the nature of an appeal is not to—per se—argue that the jury simply came to the wrong verdict. There has to be either fresh evidence or a mistake made in legal terms (X or Y was not argued, or suggested to the jury; the assumption being they may have come to a different conclusion). One cannot ask the court to simply re-try the original evidence.

When an individual is charged with a criminal offence and the Crown Prosecution Service decides to proceed with the case, there are two courts that an individual would appear before. The first is the Magistrates' Court. Magistrates are lay-persons and a trial in this court proceeds without a jury. Therefore, trials that occur in this court are summary offences (an offence considered minor and attracting a lesser penalty). The second court is the Crown Court and usually proceeds by way of jury trial, involving trials of indictable offences (offences of a more serious nature), also dealing with appeals from the Magistrates' Courts, and has greater sentencing powers. Some offences are 'triable either way', which means the defendant can choose to appear before the Magistrates' Court or the Crown Court. Murder, however, is an indictable offence and can only be tried before a jury in the Crown Court.

There are two ways an appeal can be formed: a challenge to the sentence received, and a challenge to the conviction itself. Nikki Wade made an appeal based on her conviction. This might seem confusing, because it might have seemed that only her sentence was reduced. Nikki appealed against her conviction for murder, and the appeal was upheld. Her conviction was reduced to manslaughter, which carries a lesser sentence and she was therefore released on time served. If she was appealing on sentence alone, she would have had to prove that there was something fundamentally unjust about the sentence she received in proportion to the crime committed. In other words, no matter how unfair we might think her sentence, it was appropriate for the crime she was convicted of (murder).

Set out like this, it seems a fairly simple process. However, as we know, the complexities of the procedure make it difficult and time-consuming.

Usually, an appeal from a conviction in the Crown Court would proceed as follows:

A form (known as the Notice and Grounds of Appeal, or NG) must be filled in giving the reasons why you think the conviction or sentence was wrong (which is the same thing as giving the grounds of appeal) and then sent to the Crown Court where the conviction occurred. That form will then by copied by the Crown Court and copies of all the documents used at the original trial will be sent to the Criminal Appeal Office, which is the administrative support to the Court of Appeal. Nikki probably would have not filled in form NG herself; Clare would most likely have done that for her. Usually, form NG has to be sent to the Crown Court (or handed to a Prison Officer) within 28 days from the date of conviction. If it is outside those time limits, an extension will need to be provided. This necessitates an explanation of the reasons why the form was late. Nikki tells Monica not to "let her [appeal] slip like I did." Unfortunately, there is no way of knowing at what stage Nikki let hers "slip". Perhaps her paperwork had already been completed, and she simply put a stay (paused) on the process. Perhaps she didn't get the form in on time, in which case a reason (for late application) such as "new evidence arising" would probably suffice.

Assuming this is accepted, the first stage is to receive leave (permission) to appeal from a Single Judge. This takes considerable time, because the case details must be prepared and entered into the Criminal Appeals Office database. The casework will have to be prepared to a sufficient extent to allow the judge to make a decision whether or not to grant leave to appeal. This may have involved further enquiries to Nikki's solicitor or barrister, and possibly a requirement of further papers from the Crown Court.

If leave to appeal is granted or referred (case referred to the Full Court of Appeal without having made a decision either way), a Representation Order is usually granted to give an individual public funding for a barrister. We can probably assume that Nikki paid for her own barrister, as we know she was a wealthy businesswoman. It can sometimes take up to a year to reach the court stage following leave.

However, with Nikki, at this stage, leave to appeal was refused. It should be pointed out that sometimes leave to appeal is granted at the original trial. This is however unusual, because it is a way of saying that the original Judge accepts the decision may not be right. Once leave to appeal is refused, an individual can reapply (within 14 days) to renew the application to appeal. This basically means that the individual disagrees with the Single Judge's decision and wants the Full Court of Appeal to consider the appeal. What if permission to appeal was refused by the Full Court? This may also have been what happened to Nikki (we have no way of knowing if leave to appeal was refused by the Single Judge or the Full Court).

Why was Nikki's leave to appeal refused initially? There are a number of possibilities and the script doesn't give much away. Lawyers are particularly hesitant to regard decisions as policy-based, but it may simply be that Nikki's crime was still felt to be deserving of broad, public condemnation and an opportunity to legally absolve her of responsibility was inappropriate.

Secondly, there may have been an absence of fresh evidence given that Sally Ann Howe had not come forward at this point. However, I find this possibility unlikely given the fact that the defence of provocation was not submitted by Nikki's original legal team, nor raised by the judge in his summing-up to the jury. Such an oversight would usually be solid reason for permission to appeal.

The Criminal Cases Review Commission (CCRC) can help at either stage of refusal (stages marked in green on the chart). What does the CCRC do? Their principal role is to review the convictions of people who believe they have been wrongly found guilty of a criminal offence. The CCRC are able to seek further information about a case, and carry out their own investigations. If Nikki had proceeded with the CCRC, information relating to previous allegations against DS Gossard may have arisen anyway. Once the CCRC investigations have been completed, they then decide whether or not to refer the case to the appropriate appeal court. It is important to note that the CCRC has to 'help' within a strict, legal framework, and is therefore unable to 'hear' the same evidence again, nor substitute their decision for that taken by the jury.

Nikki Wade received leave to appeal by petitioning the Home Office. As Helen points out, this is likely to be 'quicker', but it is also more risky than applying through the CCRC. This is because such an endeavour depends on a fleeting zeitgeist of support from the public, and a perception of injustice that the Home Office would be politically motivated to eradicate. All we know from the series is that the Home Office sends Nikki's solicitor a letter informing her that the Court of Appeal will consider her case.[5] We assume from this, that leave to appeal has been granted, which means Nikki and her legal team are able to present her case to the full court.

Why did Nikki's appeal succeed eventually? In legal terms, the appeal was successful because the court was satisfied that firstly, the issue of provocation was not put to the original trial jury and that the judge did not direct the jury to that defence.[6]

Secondly, there was therefore a possibility that if the issue had been raised, the outcome of Nikki's original trial may have been different. Nikki's legal team argued that provocation was a pertinent issue to the case; for this, they needed evidence of DS Gossard's character and likely behaviour. The fact that the police closed ranks on evidence relating to DS Gossard's character compels the conclusion that the conviction was unsafe. Thus, the original murder conviction was overturned and replaced with a conviction of manslaughter. Nikki was released on time served.

What are the most important issues that this discussion has introduced?

It is almost self-evident that one of the central themes of Bad Girls—discrimination—is pivotal to Nikki's legal case. Women and lesbians face an uphill struggle where prejudice is embedded within the system.

However, from a legal perspective, the most important issue that Bad Girls highlights is that prisons and the prison system have only served to indirectly suppress legal challenges to sentences and convictions. Helen was "unable" to comment on Monica's guilt, despite the fact that Monica's character was largely struggling with an overwhelming sense of injustice—rather than an inability to settle to prison life. Helen was also unable to make a difference to the legal censure Femi received—"I don't make the bloody law, Nikki!"—and despite her efforts to make prison life more comfortable for Femi, the viewer is reminded Helen's hands are tied. Perhaps we could even look at Hollamby's distaste and distrust for lawyers (listening at the door of Yvonne's private legal consultation) as subliminally informing the viewer that prison does not encompass the luxury of second (legal) chances. Nikki nursed a bitter resentment of the system that only worsened as her sullen attitude confirmed her "trouble-maker" status to the "screws". One of the most powerful truths of the Helen and Nikki love story is that Helen truly did rescue Nikki; she paved a route to contest Nikki's conviction, providing resources and options that Nikki barely knew existed.

Is it possible to go further than this, and argue that not only does prison prevent challenges to incarceration, the prison and legal system together work as insurmountable obstacles to individuals being able to rejoin society? Statistics bear this out, in that incarceration is correlative to recidivism. Prison actually encourages and cements criminal behaviour. Bad Girls shows the viewer that just as prison discourages legal recourse, it stands as a bulwark in the face of rehabilitation and programs for change. Society doesn't just believe prison is the end of the story, society makes sure prison is the end of the story; prison does not easily offer up exit routes—in any form.

Perhaps it is simply that institutionalised individuals, accepting of their fate, are calmer and more easy to manage. Perhaps it is more comfortable for society to believe that prison is simply the end of the story; a holding pen that pauses lives and delivers punishment. Helen Stewart recognised that this was not the case, and Nikki Wade's story is testament to that realisation; a realisation she brings to the consciousness of Bad Girls' viewers.

 

For further reference purposes:

The law relating to appeals from the Crown Court is largely contained in the Criminal Appeal Act 1968, the Criminal Appeal Rules 1968 and the Criminal Appeal Act 1995. http://cps.gov.uk/index.html
http://www.ccrc.gov.uk/canwe.htm
http://www.legalappeal.co.uk/pages/appeals_process/the_appeals_process.php
http://www.hmcourts-service.gov.uk/cms/1484.htm
 


 

[1] JONES, A., (1991) Women Who Kill, Beacon Press

[2] KENNEDY, H., (1993), Eve Was Framed, Vintage

[3] Series 2: Episode 11: Nikki to Claire: "When I saw him lying there, I was totally shocked. But the police wouldn't believe me or Trisha that the guy was trying to rape her. No matter what we said. They questioned me for hours. I just lost it." [emphasis mine]

[4] Section 3: Homicide Act 1957 (c.11) HMSO

[5] I have been unable to find any specific information pertaining to who, exactly, might make a decision like this. It may be the Home Secretary herself, or it may be a committee, or a Junior Minister.

[6] Note on terminology: Before the jury retire to consider their verdict, the judge will explain exactly what is required of them and should also "direct" (point out to) the jury to issues they should, or are, at liberty to consider.



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