Don’t let a tragedy jeopardise justice
Yes, cross-examination can be tough and stressful for witnesses in trials - but it must not be watered down.
Last week, Frances Andrade, a talented violinist, killed herself a few days after giving evidence against her former music teacher Michael Brewer. She had accused him of rape and sexual assault during her teenage years. In the course of her cross-examination at the hands of Brewer’s barrister, she had been called a ‘liar and a fantasist’. Two days after her cross-examination, the jury had acquitted Brewer of five of the counts against him, including one count of raping Andrade. According to Andrade’s husband, it was the pain of being disbelieved in relation to these counts which pushed her to suicide. He described how she was found dead with an iPad in her hand which was showing a story detailing the acquittals.
This tragic story has led to frenzied debate about the need to reform the criminal-justice system to make it easier for complainants to give evidence. On Monday evening, UK home secretary Theresa May announced that ‘we need to look very carefully at what happened in this case and consider how we can further improve the system to ensure victims feel they will be believed when they come forward’. Former solicitor general Vera Baird QC weighed in regarding the police allegedly advising Andrade not to seek therapy until after the trial. She said this shows that the police ‘treat the court as some kind of theatre’, where concerns for victim’s welfare are relegated to tactical concerns about the best way to get a conviction. Javeed Kahn, chief executive of Victim Support, also used the tragedy to push for reform, saying ‘aggressive cross-examination like this is far too common an event’.
This is not the first time, even in recent history, that a traumatic and unpleasant case has led some to question the adversarial nature of our criminal-justice system. Many balked when the father of murdered schoolgirl Milly Dowler was called to court last year and questioned about his pornography collection in the course of the trial of his daughter’s killer. Many back then, including the commissioner for victims and witnesses, Louise Casey, used Mr Dowler’s in-court humiliation to argue for limiting the parameters of cross-examination to make the process easier for those giving evidence.
In fact, the government has made it easier for victims and witnesses to give evidence. In any case where the witness’s fear would affect the quality of his evidence, the prosecutor can apply for what are known as ‘special measures’ under the 2003 Criminal Justice Act. If the application is granted, and it almost invariably will be, the witness can give his evidence from behind a screen, in another room by video link, or he can even have his voice disguised. These measures were brought in in 2003, to deal, in the main, with gang-violence cases, where victims would not come forward for fear of reprisal. Now they are often used to soften the emotional impact of giving evidence for those involved in sex cases. The prosecuting barrister in the Brewer case had been granted an application for Andrade to give her evidence behind a screen, but she declined to use it, preferring to give her evidence in court, face to face with the man she was accusing.
Andrade’s case is undoubtedly tragic. But cases like this cannot be used as a basis further to erode the right of a defendant to know the nature of the case against him. Of course, a lawyer should not be able to subject a witness to ridicule needlessly, or force him or her to disclose irrelevant aspects of their private lives. But that is what the judge is for – if questioning is not relevant to testing the witnesses’ evidence, a judge is obliged to intervene. The judge in Andrade’s case said the questions put to Andrade were ‘completely proper’. While the process of giving evidence must have been extremely difficult for Andrade, the questioning was no more accusatory or aggressive than would be undertaken by any number of other barristers defending those accused of sexual offences.
As some have pointed out in the course of the discussion, aggressive and uncompromising testing of a prosecution case is a vital component of our criminal-justice system. It is only if the defence questioning involves an unrestricted investigation into the truth of an allegation that the outcome, the verdict, can be said to be safe. If the defendant is innocent, the evidence must be tested to the point that its weaknesses are revealed; if the defendant is guilty, the evidence must be tested so its weaknesses can be discounted. This can be a difficult process for those being called ‘liars and fantasists’, but the barrister is simply putting what the defendant is saying about the case to the witness. The questions are the defendant’s story, and that matters just as much as the account given by the victims and witnesses.
The only real difference between Andrade and the scores of other people who have to go through the process of giving difficult evidence is that the process drove Andrade to suicide. This is the only reason this case has been brought to the public attention. It is assumed that because Andrade took her own life, other people involved in giving similarly difficult evidence will be driven to do the same. But the reality is that while Andrade’s death is sad, many other people, young and old, are able to go through our justice system without killing themselves. Suicide is rarely explicable in relation to a single, all-devastating moment in someone’s life. Of course, there will be cases like Andrade’s where the process proves too much; but that is not a case for making it ‘easier’. If the system is to maintain its standards in seeking the truth, giving evidence in cases like this will never be easy. Those involved will simply have to cope with presenting their evidence and the possibility that they will be disbelieved.
Theresa May is wrong to say that witnesses should feel ‘they are going to be believed’ when they come to court. That would be completely misleading. It is a hallmark of fairness that a witness can never be assured he will be believed. There is every possibility that a jury will reject entirely what he has to say and acquit the defendant of everything. That is what makes it a fair and objective system. If witnesses should be ‘aware’ of anything, they should be aware that what they say will be rigorously and unapologetically tested. If this process appears theatrical, then so be it. Better theatrical than behind closed doors, away from the public, and away from the rigorous interrogation that serious allegations deserve.
Luke Gittos is a paralegal working in criminal law and convenor of the London Legal Salon.
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