The conviction of Russell Brand has generated enormous public attention. For me, however, one of the most interesting aspects of the trial is not celebrity, media coverage, or even the personalities involved. It is the way in which the central question of consent and belief in consent appears, (from the reporting), to have been approached.
On 5 November 2026, Russell Brand was convicted at Southwark Crown Court of one count of rape and three counts of sexual assault. He was acquitted of two further rape allegations and one count of attempted indecent assault. He denied all the allegations against him. He is due to be sentenced on 9 November.
I do not criticise individual counsel. Prosecuting and defending a highly publicised sexual offence trial involving several complainants; allegations stretching back many years; and intense public scrutiny is an exceptionally difficult and stressful task.
Those outside the teams do not know every instruction; evidential difficulty; or tactical consideration; that informed decisions made during the trial.
Nevertheless, the case raises a question which I think is worth examining:
May too much emphasis have been placed on whether the complainants actually consented, when greater focus might have been placed on what Russell Brand genuinely and reasonably believed at the time?
That is not a minor distinction.
In a rape allegation, it can be fundamental to a successful outcome.
The Central Legal Question is always more Complicated Than “Did She Consent?”
In a rape prosecution under section 1 of the Sexual Offences Act 2003, the prosecution must establish not merely that the complainant did not consent.
(Note: the legal test is different for rape and sexual assault offences committed before the 2003 Act as became apparent in this trial because some of the allegations pre-dated the Sexual Offences Act 2003 and in fact pre-2003 offences of sexual assault are indicted as indecent assaults with different legal criteria applying)
The offence of rape post 2003 also requires that the crown proves that the defendant did not reasonably believe that the complainant consented.
Whether that belief was reasonable is determined by looking at all the circumstances, including any steps the defendant took to establish whether consent existed.
That means there are always two crucial and distinct issues:
- Did the complainant consent?
- If not, did the defendant nevertheless reasonably believe that she was consenting?
Those questions overlap, but they are not identical.
When considering these distinct issues, it helps to visualise them.
The question of the complainants’ consent is what is going on INSIDE HER HEAD at the material time.
The question of the defendant’s belief is what is going on INSIDE HIS HEAD.
The issue must be addressed from both distinct perspectives.
A jury might be sure on the testimony of a complainant that she DID NOT CONSENT because the jury is sure that IN HER MIND she was NOT CONSENTING
But in those circumstances:
The jury still must evaluate whether the defendant may have genuinely believed that she was consenting and may have had reasonable grounds for that belief.
In other words, should the jury be SURE that the individual complainant was not consenting they still have to be sure that the defendant KNEW that she was not consenting or alternatively be sure that the defendant did not have a genuine belief that she was consenting, or had or may have had a genuine belief that she was consenting but his genuine belief was NOT BASED ON REASONABLE GROUNDS.
This dual aspect of the statutory test is fundamental to outcomes.
Where the truth lies
The jury could therefore decide that the complainant is telling the truth (IE she did not consent) but still acquit the defendant because they concluded that he may have had a genuine belief that she was consenting and that genuine belief was based, or might have been based on reasonable grounds.
In my view, that distinction provides one of the most interesting ways of analysing Brand’s defence.
Once the Issues Are Properly Understood the Defence Does Not Always Need To Be Built Around Calling A Complainant A Liar
Sexual offence trials frequently involve competing accounts of intimate encounters for which there may be little or no independent eyewitness evidence.
The complainant and the defendant may both be telling THEIR TRUTH.
The complainant being sure that she did not consent and the defendant genuinely believing that she did consent.
The central issue in those circumstances might then be whether it was clear to the defendant that the complainant was not consenting.
What was his understanding at the time?
Did he take any steps to establish whether she was or was not consenting.
A full-frontal attack on a complainant would be to assert that she did, in fact, consent and that her subsequent account is untrue. She is a liar.
That inevitably places her credibility at the centre of the trial.
But there can be another route.
A defendant may say:
“I accept that she now says she did not consent or she may not have consented.
But I did not understand that at the time
That is a different proposition and can leave open a different and nuanced forensic approach to cross-examination
It does not necessarily require the defence to prove that a complainant deliberately fabricated an allegation.
Nor does it require every aspect of her evidence to be attacked.
Instead, it focuses attention on the circumstances confronting the defendant at the time and whether those circumstances could reasonably have caused him to believe that the sexual activity was consensual.
That distinction can be particularly important before a jury.
Why it may make sense to be Cautious About Relying On A Lack Of Resistance
One reported feature of the closing speech was the emphasis placed on complainants not screaming, fighting, leaving or physically resisting.
It was reported that the defence asked why the women had not “resisted or screamed or even tried to leave”.
This might be perceived by the court and jury as an outdated approach to cross-examination as the concept of consent is now clearly established as much more nuanced than crying out; resisting or running away. The jury are directed by the judge in his summing up to beware of ‘myths and stereotypes’ of which this is arguably one.
There is no legal requirement for a complainant to scream, fight or physically resist before an act becomes non-consensual.
People react differently when frightened, shocked or placed in situations they find difficult to process.
Therefore, saying in broad terms, “She did not scream, therefore she must have consented”, may be unlikely to be the most persuasive formulation.
BUT
That does not necessarily mean that behaviour during an encounter is legally irrelevant.
The more precise question may be:
What did Brand see, hear and experience at the time, and was there anything about the complainant’s words or behaviour that could reasonably have caused him to believe that consent continued?
Those are quite different arguments.
The first risks becoming an attack upon what a victim “should” have done.
The second examines the defendant’s understanding of what was happening in real time.
Brand’s Sexual History Could Potentially Have Been Relevant in A Different Way
Brand himself accepted during the trial that he had used his fame to facilitate sexual encounters and described a period of what he called “reckless philandering”. He maintained that ALL his sexual encounters were consensual.
It would plainly be wrong to argue that because a famous man had consensual sex with many women, he was therefore entitled to assume that every woman consented.
He was not.
Nor does previous consensual sex with a particular woman establish consent on another occasion or consent to a different kind of sexual engagement. In this instance one of the complainants accepted that she consented to vaginal sex, it was the anal sex that she did not consent to.
Consent remains specific and can be withdrawn at any stage.
But there is a subtler evidential point.
If Brand’s case was that he had become accustomed to women responding quickly and positively to him because of his celebrity, charisma or reputation, that background might potentially have formed part of explaining his perception of an encounter.
Again, that would not decide the case.
The legal question would remain whether any belief in consent was reasonable in all the circumstances.
But it may have been more attractive to the jury had greater emphasis been on Brand's perception of events rather than allowing the case to becoming principally a credibility contest.
Arguably there might have been greater nuance available and such an approach may have assisted the aspect of the defence that relied upon ‘re-characterisation’.
Post-Event Communications Need to Be Analysed with Care
Messages, emails and subsequent contact frequently feature in sexual offence trials.
I have written previously about the importance of evidence and disclosure in sexual offence cases.
A complainant continuing to communicate with somebody after an alleged sexual assault does not automatically demonstrate that the assault did not occur.
Human behaviour is considerably more complicated than that.
However, post-event communications can still be relevant depending upon what they contain and the issues in the case.
The important distinction, again, is the purpose for which that evidence is being deployed.
Is the defence saying:
“You contacted him afterwards, therefore you must be lying”?
Or is it saying:
“These communications provide some insight into the defendant’s state of mind at the material time. They are contemporaneous messages; they are not made up later; they may support the genuineness of the belief of the defendant and could play a part in establishing the reasonableness of that belief.
Brand was acquitted of the alleged rape in the hotel bedroom, having been invited there; and the complainant having taken photos of him in a semi state of undress.
These factors may have carried weight for the jury and may have gone to the genuineness and reasonableness of his belief at that time.
Even if the jury had been sure that the complainant on that occasion had not consented, (and we will never know), they would still have to have weighed in the balance what Brand may have believed and whether he had or may have had reasonable grounds for his belief.
The approach to evidence must always be tailored to each individual complaint.
The Verdicts Themselves Demonstrate Why Nuance Matters
One particularly important point about this trial is that the jury did not simply accept every allegation or reject every allegation.
Brand was convicted of four offences and acquitted of three.
That alone should discourage simplistic commentary about the case.
Different allegations involved different women, circumstances, dates and evidence.
A defence strategy therefore must remain capable of distinguishing between individual counts.
Equally, arguments about publicity, delay or post-event behaviour may carry greater force in relation to one allegation than another.
A criminal trial is not a referendum on whether a defendant is a good or bad person.
Each allegation must be proved.
The Channel 4 Dispatches Argument Had an Obvious Difficulty
Media coverage was another major feature of the defence.
Before any evidence was called, Brand's lawyers had argued that the extensive reporting surrounding the 2023 Channel 4 Dispatches programme and newspaper investigation meant he could not receive a fair trial.
The judge rejected the attempt to prevent the prosecution from proceeding, concluding that an appropriate jury could be selected.
The issue also featured in the defence closing speech, where the media was accused of having “poisoned the well”.
It is understandable why the defence identified the prejudice that might be in play given the extraordinary publicity surrounding the case.
Any defence team representing an individual who has been the subject of international reporting before trial has to consider whether that publicity has affected the fairness of the proceedings.
But there may be problems of logic attempting to rely upon outside reporting as a sound basis for undermining allegations.
The circumstances in which any individual complainant first discloses or reports what they say happened are not necessarily identical.
If evidence exists showing that an individual complainant has spoken or may have spoken about an alleged incident before any media report, that may undermine any assertion that the individual’s account has been contaminated by the media report.
That does not make media reporting irrelevant to every complaint, it means each allegation must be analysed separately.
Again, nuance matters.
The Defence of a High-Profile Client Extends Beyond The Courtroom
There is another lesson from this case which extends beyond the evidence itself.
When representing an individual whose criminal proceedings attract intense public attention, the defence strategy may not exist solely inside the courtroom.
Brand gave several major interviews and there were also some highly visible public appearances connected with Brand's religious conversion and Sunday broadcasts.
Adopting a religion; or carrying a Bible; or speaking publicly; does not establish anything whatsoever about whether an individual committed a criminal offence.
It plainly does not.
BUT
A defendant in a serious criminal trial is simultaneously being observed by a judge, jury, journalists and the wider public.
Everything from public interviews to social media content can create material which prosecutors may seek to deploy, or which may distract from the defence.
In a high-profile prosecution the public presentation of the defendant may have an intangible effect.
It may therefore be sensible to ensure the evidence remains at the centre of the case.
What Happens to Russell Brand Now?
Brand is due to be sentenced at Southwark Crown Court on Monday 9 November 2026.
Mr Justice Bennathan has already indicated that Brand should expect a significant custodial sentence, and he was remanded in custody following the verdict.
Victim personal statements will be considered as part of the sentencing process. Such statements have the capacity to impact upon the outcome in terms of categorisation of the offences by elevating harm.
It would be premature and unwise to attempt to predict the precise sentence because there are so many unknowns.
The court will apply the relevant sentencing framework to each offence and consider matters including seriousness, culpability, harm and other aggravating and mitigating factors, including the historic nature of the offending and the evolution of Brand’s character and persona since those times. It must also have regard to totality and avoid double counting.
Having been convicted of serious sexual offences including rape, Brand is already subject to the statutory notification requirements applicable to relevant sexual offences, which are themselves onerous. They will however only really come into play upon his release from custody.
The Metropolitan Police has also confirmed that Brand remains under investigation in relation to further rape allegations made by two women.
Those are separate allegations and must not be treated as established facts or convictions.
Could There Be An Appeal Based On The Media Coverage?
The identified media issue has been said to have impacted upon the fairness of the trial and so it is not beyond contemplation that it could feature as a ground of appeal against conviction in due course.
An application for leave to appeal will not necessarily be lodged. The merits of such an application will be subject to analysis by the defence legal team.
The robustness of the judge’s ruling on the application for a stay will be a crucial factor in that analysis.
Any appeal, on any legal issue, would therefore require proper legal grounds and would have to engage with the judge's reasoning, legal directions, and the conduct of the trial itself.
The fact that publicity was extensive is not by itself enough to overturn a conviction.
Nevertheless, the relationship between investigative journalism; social media; international publicity; and the ability to conduct a trial that is fair may become subject to consideration by the appellate court.
Counsel’s Post-Verdict Comments Are A Separate Issue
Following the verdict, Brand's barrister Ian Winter KC was reported to have confronted one of the Sunday Times journalists involved in the investigation.
Mr Winter has since reportedly referred the matter himself to the Bar Standards Board so that the incident can be considered by the regulator.
My Main Lesson from The Russell Brand Trial
The most interesting lesson may ultimately be about how sexual offence allegations are defended.
That is why this case is so interesting for me as a practising barrister in this field.
This article is intended to highlight the multifarious strategic and practical considerations that arise in a criminal trial. It is not an exercise in being judgmental. Far from it.
Often there is no ‘right answer’. The issues that arise in a criminal trial can lead to a multitude of different approaches, each as valid as one another.
What is illuminated by this trial is that the stakes are high for all parties and so it is imperative that participants in the process should have the best available assistance to present their side of the case.
I provide representation for professionals and others facing allegations where liberty, career and reputation may all be at risk.
