The recent suicide of Frances Andrade has sparked debate once again on the treatment of victims by the court system. Mrs Andrade had, days earlier, testified at the trial of her former music teacher, accused of rape and sexual abuse of her over a period of years during her teens. She took her own life whilst the trial was still continuing, but this information was subject to a reporting injunction until the trial had concluded.
Frances Andrades had chosen to give her evidence in full view of the court. As she was a vulnerable witness, due to the nature of the crimes allegedly committed against her, she would have had the option of benefitting from a variety of different measures that are enshrined in the (Youth Justice and Criminal Evidence Act 1999). These measures include giving evidence with screens in order to prevent the victim from seeing the defendant (s 23), or giving evidence via videolink, thus allowing the victim to be in another room altogether whilst giving their evidence (s 24). Section 17(4) automatically classes sexual offence complainants as being intimidated and therefore eligible for special measures. They must still request them, but they are assumed as fulfilling the criteria to be eligible for them.
However, although not in the discretion of the court as for some other classes of witnesses, these measures are still only provided on a requested basis, not an automatic one. An application must be made to the court, or the court must raise the issue of its own volition (s 19). Furthermore, such measures cannot usually be forced upon a witness – the statute states that the views of the witness should be taken into consideration when making decisions on special measures (s 17(3)).
Mrs Andrade chose to give her evidence without screens. This may be because she wanted the opportunity to physically face those accused of assaulting her, or because she felt that the experience would be less traumatic than it ultimately was. This case may raise questions as to whether or not the provision of special measures should be routine and presumptive, with evidence in certain types of case only given in open court if there is a good reason for it.
If special measures are requested but the witness changes his/her mind and asks for them to be removed they are not time consuming to “undo” – the screens erected often amount to a small curtain around the witness box, easily taken down, and a video link witness could easily come into the courtroom instead. The only logistical issue is that videolinks are often booked months in advance, and so this could alter the date a case is heard.
The family of Frances Andrade have made it clear that the accusations levelled at her in cross examination were “more than she could bear”. It is, however, indisputable that the questions to which they specifically refer were necessary from the defence’s point of view – they were putting forward the defendant’s case and testing the veracity of the claims. There are only so many ways to do this, and indeed it is in cross examination that there has to be a fine line drawn between vexatious questions and those which are truly testing the evidence. It should also be noted that in this case there is no suggestion that the questioning was in any way improper.
The barrister in question has remained within the Code of Conduct, and it is hard to see how her approach can be criticised. All cases require putting forwards the defence’s case in clear terms, and testing the prosecution’s case. Indeed, not to test the evidence properly would itself be a breach of the Code of Conduct, which requires that barristers, “must at all times promote and protect fearlessly and by all proper and lawful means his lay client’s best interests” (Written Standards for the Conduct of Professional Work, para 5.2). Various statutory enactments deal specifically with the questions that can be put to complainants of sexual offences, and restrict these (for example, the Youth Justice and Criminal Evidence Act 1999, ss 41-43). However, too much restriction would amount to an unfair burden on the defence, already on the “back foot” without the considerable funds and resources of the state at its disposal.
It is possible that upsetting questioning could be reduced by a move to the inquisitorial system as opposed to the adversarial which we currently have in England. However, even in an inquisitorial system there is testing of the evidence by a judge in many such jurisdictions, and thus questions which lead to distress are likely to still be asked, albeit possibly in less forceful terms.
It is impossible to view Frances Andrade’s suicide as anything other than a tragedy. However, to accuse the criminal justice system of causing it by abject failure is to misunderstand how the system works, and the elements that are crucial to retain the notion of a defendant being innocent until they are proven to be guilty on the strength of evidence before the court alone.