Cross-examination and why the defence case must be put

Last week came the tragic news that Frances Andrade, the complainant in a recent sexual abuse case, had committed suicide just days after giving evidence against her attacker.

The facts of the case have been well-documented in the press, but in summary, Mrs Andrade made allegations that Michael Brewer sexually abused her whilst she was living with him and his wife during the 1970s.  Both Mr Brewer and his wife Hilary were found guilty after trial of sexually abusing Mrs Andrade when she was 14 and 15 years old.  Mr Brewer was, however, acquitted of raping Mrs Andrade when she was 18, and his wife acquitted of aiding and abetting that rape.

The defence case is, at present, unclear, however we know that both defendants denied the charges.  The press have reported that it was put to Mrs Andrade that she was a liar and a fantasist.  What is certain, is that in order for this to be put, it would have had to come from the defendant himself.  This is what we term “instructions”.  It would not and could not have been concocted by defence counsel in an effort to hurt or humiliate Mrs Andrade.

The role of the defence advocate is to put their client’s case to the complainant.  We don’t concoct a defence or tell our client what to say in order to “get them off”.  But we must fearlessly defend those accused, regardless of our own thoughts and feelings.  We are not there to judge, we are there to enable the evidence to be tested.  It is the role of the jury to determine guilt, not ours.  In testing that evidence it may be necessary to put certain, rather unattractive, suggestions to the complainant, and if those are our instructions we have a duty to put them.

I’ve represented men accused of sexual and violent offences against women.  Some have been found guilty of those offences, and some have been acquitted.  If the evidence had not been tested it is likely those innocent individuals would have been convicted.  It’s never a pleasant experience to have to put certain things to a witness, especially one who is clearly vulnerable, but it’s my job.  I have been trained to do it and that training teaches us to cross-examine in a sensitive but robust manner.  I have no doubt that Kate Blackwell QC, counsel for Mr Brewer, did exactly what was necessary in order to put her client’s case.  Indeed the trial Judge Martin Rutland praised her for her conduct during the case, stating “You did your job, in that you put what had to be put to the witness”.

As a complainant in a sexual abuse case, Mrs Andrade should have been offered support from the moment she went to the police.  We cannot comment on the support offered in this particular case, but Greater Manchester Police have said that it is their “policy and practice to encourage victims to seek whatever support they need”.  The courts are also aware of the necessity to treat complainants of sexual offences with care and are equipped to assist them when they come to give their evidence.  Complainants of these types of offences do not need to face the defendant in open court, but can give evidence from behind a screen, or via video-link.  These are deemed “special measures” and are available to a range of witnesses, not only complainants in sexual cases.  It is reported that Mrs Andrade refused these measures, opting instead to give evidence in the usual way, by facing the defendant in open court.

Putting aside the issue of special measures, the fact remains that each and every complainant must be cross-examined effectively.  This is the only way the case against the defendant can be proved as it is only by testing the evidence that we can equip the jury with the necessary tools to come to a safe verdict.  Chairman of the Bar Maura McGowan QC has commented on the matter, stating “There is sometimes a very difficult balance to strike between protecting vulnerable witnesses and properly testing evidence so that juries are able to make informed decisions.  We must do everything we can to ensure we get that balance right.”

It has been reported that the CPS prosecutor only met with Mrs Andrade on the day of trial.  In my experience this is not uncommon.  However, this does not mean that she was not supported by the criminal justice system.  Again, we cannot comment on this specific case, but usually a complainant will be well informed of the assistance they can receive from Victim Support, and have details of the individuals working on their case.  The trial process will be discussed and they will be informed of the special measures available to them.  At court they will be taken into a witness waiting room, away from the press and general public, where they are able to go over their statement in relative comfort.

Mrs Andrade’s death is tragic.  The circumstances surrounding it are tragic.  But is the justice system to blame?

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30 thoughts on “Cross-examination and why the defence case must be put

  1. John Allman

    “Both Mr Brewer and his wife Hilary were found guilty after trial of sexually abusing Mrs Andrade when she was 14 and 15 years old. Mr Brewer was, however, acquitted of raping Mrs Andrade when she was 18, and his wife acquitted of aiding and abetting that rape.”

    That’s a puzzling combination.

    Reply
    1. thebungblog

      Not really. It just means that the jury listened to ALL the evidence, unlike apparently the press, and decided they could be sure of the evidence on the indecent assault allegations, but not the rape count.
      This thoroughly vindicates Kate Blackwell QC’s cross-examination. The jury heard her testing the complainant’s account of the alleged rape, and did not accept it.
      The fact that they so clearly discerned between the two counts, demonstrates that they, and defence counsel all did their jobs properly.
      Also worth bearing in mind that in summing up, the judge would have been bound to direct the jury to consider each count separately, which they clearly did.

      Reply
  2. sisterhooduk

    I believe the judge instructed the jury to find the perpetrators not guilty of rape the jury did not decide anything about rape other than what the judge told them to. Second jusf because you can’t prove something happened that doesn’t mean it didn’t happen.

    Reply
    1. thebungblog

      I am sorry but you are quite wrong. The jury acquitted the defendant of rape.
      The judge directed acquittals on certain of the indecent assault counts simply because the complainant’s age was a relevant issue, and the evidence was not clear as to how old she was at the time.
      Secondly, as i am sure you know, our law demands that juries can only convict when they are sure, having heard all the evidence.
      There is no such thing as probably guilty or maybe guilty, and let’s hope there never is

      Reply
  3. John Allman

    I still find it puzzling that Frances Andrade gave testimony of sexual abuse sufficiently convincing to persuade a jury to disbelieve the two convicted’s denials of guilt, whilst at the same time testifying to a rape that the jury concluded she might be inventing.

    Reply
    1. thebungblog

      She focused on what she suggested were inconsistencies and anomalies that were specific to the rape allegation.
      It is a credit to the jury that they were able to reach verdicts on each count independently of others

      Reply
      1. sisterhooduk

        I am quite right you mean just because I can’t prove a rape, murder or theft does not mean it didn’t happen.

  4. Rob Allen

    The point is not whether the defence was legitimate or even required by the current process, but whether that process is the best way of dealing with these cases. I am surprised how little consideration there has been to introducing a more inquisitorial approach .

    Reply
    1. Dan Bunting

      It’s an interesting question. It would mean a complete re-vamping of the way we do our criminal justice system but, if it is better (in the sense of getting the right results), then maybe we should look at that?

      I’ve been brought up in the adversarial system and so am hardly disinterested. But I don’t think that an inquisitorial system is better. It’s a tough one to research and get evidence about however.

      Reply
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  6. Lilith Morris

    Does a defence have to include any theory or speculation as to why a complainant might lie (i.e. malicious, mercenary or mad). Or is it sufficient simply to assert, repeatedly, that the complainant is lying? If no underlying motive/reason/theory for lying is introduced, does that not mean that the defence relies on a popular cultural prejudice that women do just ‘lie about this sort of thing’?

    From the point of view of Blackwell promoting her clients’ interests, I would think that cross-examination of a style that contributes to the suicide of the complainant would be a bad move. It’s about as powerful a victim impact statement as you might get and her clients are still to be sentenced.

    Reply
    1. Dan Bunting

      If a motive is known, then it would have to be put. It may be that the defence advocate’s instructions are that the complainant is lying, but s/he doesn’t know why. In that case, the lawyer would have to put the case that the complainant is simply lying.

      I would have thought that in the 21st Century, any advocate that suggested women ‘just lie about this sort of thing’ is unlikely to get very far with a jury …

      Ms Blackwell, I am certain, had absolutely no intention or inkling that the complainant would commit suicide after the cross-examination. But, as the Judge said, her conduct of the proceedings was in no way improper.

      Reply
      1. Lilith Morris

        It’s obviously that Judge Martin Rudland will state that Ms Blackwell was “perfectly proper and correct in her examination of all the witnesses in this case.” To state otherwise would be to point the finger at himself, as it is ultimately his role to prevent QCs from overstepping boundaries in cross-examination. It would be more surprising if at the end of a case over which he had presided he suddenly decided that he had allowed improper or incorrect examination of witnesses.

        Nonetheless, many people reading the parts of the trial transcript that have been widely published will wonder how unsupported assertions made by a QC about the character of a witness (these were not questions put to the witness) in the context of cross-examination can hope to assist a jury in reaching a verdict. It may be that there is a very well-constructed case specific to Frances Andrade having lied (rather than the general claim that a person may lie and that the client denies the allegation) that underpinned Blackwell’s assertions. If so, it is probably in the interests of both Kate Blackwell and Judge Martin Rudland that this case be as widely publicised as the exchange in which Blackwell asserts Andrade’s claim to be ‘utter fantasy’ and ‘a pack of liees’ since it is the existence (or otherwise) of such a case that speaks directly to what is now a public debate on the appropriateness of the conduct of both in this trial.

      2. Dan Bunting

        This article quotes what the Courts have said an advocates duty is. I don’t know anything about the people involved in the case, but Judges are generally more than willing to ‘have a go’ at an advocate if they feel that there was anything improper.

        I actually agree with you that I don’t think that it does help in establishing the truth (see my comments above) and I don’t know any advocate who enjoys doing it – it just invites a confrontation and gives the witness another chance to stress that they are telling the truth.

        Legally speaking, the allegations put by Ms Blackwell weren’t ‘unsupported’ – they were supported (presumably) by her instructions – what her client told her had happened. As such, she had no choice but to put them.

        But a think an informed public debate on all this is certainly worth having!

  7. Dan Bunting

    An interesting point is whether it should be necessary for a lawyer to ‘put their case’. As I understand it, this is not a requirment in all common law jurisdictions.

    I have to say that I’m not sure that there is much point in it. It never really helps in getting to the truth of the matter. The reasons for it is that it is done in fairness to the witness, but I’m not sure that’s right and all it does is wind up the witness.

    It does seem to me that a re-visiting of that rule would be interesting. And certainly better than abandoning an adversarial system.

    Reply
    1. John Allman

      Dan, please could you explain what requirement to “put” one’s “case” it is, to which you are referring? Or please could you post a link to an explanation?

      Is “putting one’s case”, prefacing cross-examination of a witness for the other side, with a statement as to what assertions of fact that one hopes the jury will infer from the witness’ answers to the questions one is about to ask? I.e. what one is getting at, by the line of questioning that is to follow? Such as the ‘utter fantasy’ and ‘a pack of lies’ dicta attributed to Ms Blackwell that Lilith quoted above? If this is what “putting one’s case” is, I didn’t know that this was *ever* allowed. Defendants acting in person don’t ever seem to be allowed to do this in magistrates courts, when cross-examining police officers, I have noticed. I watched magistrates bullying a defendant into silence when he tried to “put his case” to a witness. “Have you got any QUESTIONS for the officer, mister?”

      Reply
      1. Dan Bunting

        There’s a good overview of it here. Basically, the rule is that if an advocate is intending to call evidence to contradict what a witness is saying, or will invite the jury to disbelieve what a witness is saying, they need to ‘put’ that to the witness and give the witness an opportunity to respond to it.

        So, it the trial is about a pub fight and the complainant says that the defendant attacked him without warning, but the defendant says the complainant came up to him and was threatening him, which is why he through the punch, then the defence advocate would have to ‘put’ the threats to the complainant and the prosecuting advocate would have to ‘put’ the fact that is was an unprovoked attack to the defendant.

        With people who are representing themselves, the same rules apply. The magistrates should explain to the defendant that he needs to do this (but not have an argument with the police officer).

  8. Lilith Morris

    “My client rejects your allegations in their entirety, and maintains that your claims are untrue” = “Your story is utter fantasy and a pack of lies”. Both could be said to ‘put the case’ equally well if one is interested in is giving the witness an opportunity to respond to the defendants case. The fact that no defence barrister would ever ‘put the case’ in the former phrasing suggests that giving the witness the chance to respond is not the primary consideration, but rather that we are very accepting of a type of court theatrics designed to impress juries (and I’m sure they do) but which do not have not a lot to do with ‘testing’ evidence in any meaningful sense.

    Reply
  9. John Allman

    SPIN

    I have NOT read about this case. I HAVE however given a great deal of thought in the past to the SPIN that people put upon facts, the speculation as to what know facts MEAN. “Spin” is what we read about in Aesop’s fable about the father, the son and the donkey, where different observers place opposite spins on the same observed facts. The spins are especially contradictory when the emotive subject of rape comes up.

    Suppose (for the sake of argument) that only 20% of reported rapes result in a conviction. Does this mean, as some say, (Spin 1) that our criminal justice system is failing, because 80% of rapists are escaping just punishment for their crimes? Or does it mean, as others say, (Spin 2) that our criminal justice system is failing, because, for every true rapist convicted, four innocent men are each being put through the horrible ordeal of a rape trial, accused of rapes that (the juries eventually decide) they did not commit?

    Likewise, what *spin* should a juror (or the judge who still has to sentence the two convicted) place onto this witness’ suicide?

    1) I knew I was right to believe her sexual abuse allegations! Her suicide is proof of her genuineness. Who would take their own life over a false allegation they had made up not being believed?

    2) Oh dear. Perhaps if her mental state was THIS disturbed, and she had such a selfish and ruthless streak that she would even take her own life just to maximise the attention she received and the hurt she caused to others, then we should never have believed her testimony.

    3) I hope she didn’t kill herself because she was feeling guilty about having perjured herself to get vengeance on an innocent man, by getting him convicted of a made-up crime, the sex abuse allegations we believed, and perhaps shouldn’t have believed after all, in the light of the witness’ suicide.

    4) Oh no! If only we had believed this poor, distressed woman, and found the defendants guilty in relation to the rape too. If we had, perhaps the victim would still be alive today.

    At worst, those convicted ruined the life of their victim. Everybody who sat on that jury, is one of the countless victims of this witness’.

    Reply
  10. sisterhooduk

    Spin – tosh. Was your car stolen yes or no, was the victim murdered yes or no. Was the victim raped yes or no. That’s not spin. With me so far. These two Brewer people sexually assaulted a child and pled not guilty – lied in other words. Mr Brewer had improper relations with another pupil abuse of his trusted position of teacher, yet they, according to them and their barrister, stopped short of rape. because they’re basically decent upstanding people and the victim was just ‘exaggerating’! The victim met the (not her) CPS lawyer 10 mins before the trial commenced. She had no lawyer to act her on behalf, object on her behalf. The CPS represents the crown yet without a doubt she was also trial. The system is inequitable when it comes to sex crimes and rape. It’s nothing to do with spin it’s about rape apology it’s about using the law to get away with rape.

    Reply
  11. John Allman

    I have now read the BBC report to which Sara has kindly linked. I am quite mystified. Mrs Andrade apparently committed suicide before the end of the trial, although the judge tried to ensure that the jury did not get to learn of this until after they had delivered their verdicts. So, whatever the reasons Mrs Andrade had for taking her own life, the verdicts played no part in her motivation. She wasn’t even curious enough to know what the verdicts were, to keep herself alive long enough to find out.

    I do not see how any useful conclusions can be drawn from this extra-ordinary suicide, as to how well or badly the criminal justice system did its stuff in this individual case, let alone how well or badly the system works generally, or even just in rape or sexual abuse trials.

    Reply
    1. Lilith Morris

      She killed herself before the verdicts, but apparently after it was reported that the judge directed the jury to acquit on five counts.

      Reply
      1. John Allman

        Regarding the five charges, according to the Guardian, “The judge said those charges fell outside the statute of limitations because Andrade admitted in evidence that she may have been over the age of consent at the time.” So, there were ten incidents of indecent assault, five that she was sure were before her sixteenth birthday, and five that she admitted may have taken place after her sixteenth birthday. The judge directed the jury to acquit on the five indecent assaults when she was overage, because of the limitation period, not because her evidence was disbelieved.

        Why did on earth did she kill herself? How can a tragedy like this be prevented in future?

  12. Lilith Morris

    What is the statute of limitations on as sexual assault over the age of sixteen in the UK?

    Reply
    1. sisterhooduk

      There isn’t a statute of limitations and I’m not a lawyer however 16 is the age when rapists and their apologists start to justify rape suddenly the victim is over the age of consent disregarding the fact that there wasn’t consent and that they did rape, They start pleading not guilty when they know they are as guilty as hell, start talking about how they reasonably believe their prey was consenting, and here’s the best bit man made laws, bearing in mind that 98% of all rapes and sexual offence in the UK (MOJ & BCS) are committed by men, starts to gift them get out clauses.

      Reply
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