Tag Archives: special measures

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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