Wednesday, 13 February 2013

Frances Andrade: Who to blame?

The sad case of Frances Andrade - who took her own life after giving evidence in court - has caused significant discussion about the treatment of victims of crime. Defence lawyers have been the primary target for criticism; but this focus is perhaps unfair. Different parts of the system exercise influence on those individuals drawn into the system, and I suspect that to blame the defendant's counsel entirely is to settle for an easy scapegoat. This post examines different 'players' in the system, with the hope of providing a more balanced analysis of what may have caused this tragic event.

The victim or 'complainant'

Frances Andrade was a 48 year old violin teacher and mother, with a supportive family. She took her own life during the trial of Michael and Hilary Brewer, her school music teacher and his ex-wife, accused of sexually abusing Mrs Andrade whilst in her teens. Mrs Andrade left no note or explanation for her decision. She reportedly commented regularly that the process was an ordeal in which she felt she was 'on trial'.

This experience is common. Providing evidence in court is an intense process, where the reliability and credibility of a prosecution witness is likely to be questioned. There are few ways of preparing for it. However, the Youth Justice and Criminal Evidence Act 1999, created an extensive set of protections for vulnerable prosecution witnessess, most notably in sexual offences cases. These include the taping of evidence-in-chief in advance, video link testimony, protective screens, and even limitation on what lines of questioning defence lawyers can pursue.

Historic sexual abuse is extremely serious, but complex. The manipulation and exploitation of vulnerable individuals nearly always has substantial long-term implications for victims, affecting not only their life generally but often draining any desire to engage with the issue again - in short, to bury it in the past. A problematic aspect of historic cases is the near universal lack of forensic evidence, placing great emphasis on the evidence of the primary witness in a case. The combination of this pressure, the intimidating prospect of the court process, and the urge to forget the trauma present a signficant barrier to victims coming forward.

However, reporting and prosecution of such offences now occurs much more regularly; increasingly, victims of recent and historic sexual abuse have found the courage to report their experiences, largely due to changes in the culture and attitude of both society and the legal system towards such cases and the treatment of witnesses. In all these cases, witnesses must face questioning about their allegations; but not all take the tragically terminal decision of Frances Andrade - hers is an unusual case and not necessarily indicative of a broken system.

Until the Brewers were convicted, Mrs Andrade could not be classfied as a victim. She was a complainant - an individual making an as yet unproven allegation of criminal behaviour against a defendant. This aligns with the principle of 'innocent until proven guilty'. To Mrs Andrade this would have meant nothing - she knew the truth and understandably her family and friends supported and believed her. However, society cannot simply accept as true - on trust alone - such serious allegations against another without thoroughly tested evidence. 

Proof beyond reasonable doubt is required; to do any less would leave our criminal justice system in a dire mess, riddled with false allegations and convicted innocents. It is important to underline that prosecution witnesses are not the only potential victims; those falsely accused or wrongly convicted of serious criminal offences - particularly sexual offences - can and have had their lives destroyed. As such, until proven, Frances Andrade needed to be treated as a complainant and not a a victim.

Several factors appeared to influence Mrs Andrade's feelings about the prosecution of the Brewers. Some sources suggest she had never wanted the prosecution to proceed at all; it was apparently initiated by the police independently. Other reports state she refused the aforementioned special measures, determined to face the defendants in court. She had attempted to take her life on two occasions prior to the trial and, controversially, had not received therapy for her psychological wounds. Finally, the dropping of five charges against Mr Brewer closely coincided with her decision to end her life, and may have been a factor (according to this description by her husband)

Whether her feelings about the case and her decisions relating to it resulted from fear, defiance, desperation, an underestimation of the intensity of the court process, or a mix of the above, is unclear. Clearly, a variety of factors deeply affected her prior to her death. It is worth remembering that the trauma inflicted upon her by the Brewers was the root cause of her death. To return to the point made in the opening paragraph of this post, to suggest that the words of the defence lawyer were the primary trigger is both speculative and misleading.

The judge

The judge has a crucial role to act as a guardian in cases with vulnerable witnesses. He or she must ensure that complainants are questioned fairly and with appropriate sensitivity; but equally, a judge will insist on witnesses being cross-examined robustly. Judges will neither allow the humiliation of a witness by a defence lawyer simply to score cheap points, nor will they allow a defence lawyer to shy away from hard but necessary questions. The judge has a primary duty to serve the administration of justice, which requires both prosecution and defence to present their cases.

Since the passage of the Youth Justice and Criminal Evidence Act 1999 and the introduction of the Criminal Procedure Rules in 2005, judges have been very proactive in their management of criminal trials. It is arguable, in fact, that restrictions on certain types of defence evidence (particularly sexual history) have been enforced so stringently as to exclude truly relevant evidence (see R v A (No. 2) and R v Beedall) to the detriment of the defendant and benefit of the complainant. In this context, one might conclude that the culture amongst the judicicary is generally favourable to the protection of complainants.

The judge would have rightly granted special protective measures to Mrs Andrade had she desired them. The trial judge, Martin Rudland, commented that the defence lawyer had been 'perfectly proper and correct in her examination of all the witnesses in this case'. There is little suggestion in this case that the judge failed to provide adequate protection for Mrs Andrade during the court process; to criticise the defence lawyer for excessive zeal without also criticising the judge for failing to control proceedings seems unjust.

The defendant and defence lawyer

The defendant or accused has a long-established right to a fair trial before an independent tribunal. Until allegations are proven via a rigorous process and to a very high standard, the defendant remains an innocent man or woman. The entitlement to present one's case allows a defendant to honestly submit evidence or argument contrary to the account of the prosecution and their witnesses.

This is justified on the bases that the innocent majority must be protected from wrongful conviction, which not only offends the rights of the blameless but fails to protect the public from the genuinely guilty. To presume the veracity of accusations in advance would greatly increase the chances of such miscarriages of justice. False allegations are made for various reasons: revenge; to deny or hide an embarrassing truth; or even due to genuine belief. In a parallel with false confessions by suspects, complainants can sincerely believe in allegations without foundation - perhaps because family, professionals or the Police have convinced them.

The Brewers were thus entitled to dispute the accusations made by Mrs Andrade. In cases of alleged historic sexual abuse, it is usually one person's word against another. Sex offences - such as rape - are very personal and usually private in their nature; hence, multiple prosecution witnesses are uncommon. Thus, the defendant and complainant engage in a one-on-one battle of credibility and reliability.

In this sense, the Brewers' defence was almost certain to be that Mrs Andrade was lying. From a neutral point of view, this was an expected and justifiable case to make since the allegations were as yet unproven. The Youth Justice and Criminal Evidence Act 1999 prohibits defendants from cross-examining complainants in sexual offence trials. As such, the Brewers were entirely reliant on legal representation to present their case and question Mrs Andrade directly.

The defence lawyer owes a duty to promote the best interests of the defendant and present their case, lawfully and properly. Brewer's counsel, Kate Blackwell QC, is a highly experienced criminal barrister, who has prosecuted and defended in several high profile cases over a 20 year period. Blackwell is required to 'promote and protect fearlessly' a defendant's interests and rights (Bar Code of Conduct, Para. 303(a)). This should be done regardless of the defendant's character or cause, in a detached and robust manner.

The fear of offending or upsetting a complainant cannot prevent a defence lawyer doing their job. The Code explicitly prohibits questions 'which are merely scandalous or intended or calculated only to vilify, insult or annoy' (Para. 708(g)), but equally they must present the defendant's case 'without regard to his own interests or to any consequences to himself or to any other' (Para. 303(a)). The case for a defendant will almost inevitably upset a complainant because it will contradict their own - in highly sensitive cases, causing acute embarrassment or upset to a primary witness is often unavoidable. How this is presented must tread within the boundaries above; judges are quick to stop cross-examination which offends these principles (often doing so for much less - for a recent example, albeit a family case, see J (A Child) [2012]).

The Brewers' argument was that Mrs Andrade was a liar and a fantastist; as such, Blackwell's duty was to present that case. In doing so via cross-examination, she had little option but to state directly to the complainant that she was a 'liar' and 'a fantasist'. These are, of course, horrible labels; no one would wish to be called either, and a primary issue for victims of sexual abuse is being believed. Accusations of lying and fabrication were, understandably, deeply painful for Mrs Andrade; but in a situation where a jury must decide who's account is more credible, the defence lawyer cannot be blamed for depicting the accuser as unreliable. As the trial judge stated, 'you did your job, in that you put what had to be put to the witness.'

The assumption of a direct link between the trial and Mrs Andrade's death has led to some negative classification of Blackwell's cross-examination. Javed Khan, Chief Executive of Victim Support, characterised it as 'aggressive'; her son described it has 'hostile'; and the Home Secretary suggested it would deter complaints about sexual abuse. Others have described it as 'robust' and, as mentioned, the trial judge described her conduct as 'proper' and 'correct'. The words used by Blackwell were the central to the defence case; to avoid them for fear of offense or upset would be a dereliction of duty and might well have led to censure by the judge or even formed grounds for appeal. As Mrs Andrade's son pointed out, the defence lawyer 'challenged her personal integrity' - which is an absolute necessity.

The role-differentation that defines the defence lawyer's obligations were in fact recognised by Mrs Andrade's husband, Levene. He stated, 'I know it's not personal, she [the barrister] has to do that, she has to attack, she has to defend her client.' He went on, 'I understand. If I was put in that position as the accused, I'd want the very best fighting on my behalf'. There are few better descriptions of the role.

The Police, CPS and Victim Support

The Police and CPS are charged with investigating and prosecuting criminal activity; as representatives of the state, they form the other 'party', alongside the defendant, in adversarial proceedings. They also have a pastoral role, supporting complainants, witnesses and their families through the process. Victim Support provide what might be termed 'moral support' and guidance during criminal proceedings.

Although it has not been ignored, the failures of the prosecutory arm of the criminal justice system have been partially obscured by the maelstrom surrounding the defence lawyer's cross-examination of Mrs Andrade. The primary criticism is the deeply misguided decision taken by the Police to advise her not to seek counselling until after the proceedings were complete.

The apparent reasoning behind this was the fear that psychological therapy might affect the quality of Mrs Andrade's evidence in court - the implication being that a calmer, happier, and more well adjusted complainant might undermine the seriousness of the accusations in the eyes of a jury. This advice is grounded in the widely discredited myth - particularly relating to rape - that marks of a 'genuine' victim are visible distress and emotional instability.

This 'myth' has presented a substantial barrier to the pursuit of prosecutions for sexual offences for many years, particularly among police officers married to the idea that rape victims cannot be believed unless they express emotion. It is well documented that victims of rape often exhibit calm, logical and sober descriptions of their experiences. As such, this commitment to the court process as a 'sort of theatre' where the jury need to be impressed by the complainant's performance lacks a basis in evidence and is damaging to complainant well-being.

The advice provided to Mrs Andrade reinforced the myth, an approach described by former Solicitor General Vera Baird QC as 'very out-of-date', 'abysmal psychiatry' and 'an appalling misjudgment'. Although a speculative conclusion, one suspects that a lack of professional psychological help, over a two year period, during an extremely intense process, was likely to be a major causative factor in Mrs Andrade's death.

Andrade's son described how she was effectively left to 'cope on her own', with only family and friends to support her. The CPS provided a Witness Care Officer to explain the process to Frances Andrade and special measures were successfully applied for. Yet, she opted to decline them. This raises the question as to whether the CPS and Victim Support had adequately prepared her for her court appearance - reports suggest the CPS only discussed the court appearance with Mrs Andrade the day before it occurred.

To an extent, both lack the ability to do more. The former is a busy, under-staffed, under-funded organisation primarily dedicated to case preparation and presentation. Their job is to pursue the case for the state - as distinct from the complainant. Under the adversarial system, the complainant is a witness, albeit the central source of evidence in this sort of case. But beyond the protection of special measures and pre-trial preparation - which excludes coaching - they can do little else. 

Victim Support have very limited resources, with no rights of audience or intervention. They can provide a basic 'therapeutic' service by allowing complainants to articulate their thoughts and feelings, and offer guidance as to procedures and experiences, but they are neither lawyers not counsellors.

The Police's advice, however, should be seriously scrutinised. It should be questioned whether their desire to secure a conviction, by encouraging what might inaccurately be termed 'best evidence', overrode the best interests of the complainant: to seek professional help for the serious psychological problems which had clearly negatively affected her prior to and during the case. 

Additionally, the suggestion that Mrs Andrade never wished to give evidence against Michael Brewer infers that she was convinced to do so - and one wonders how far the Police went to ensure that a viable case could be brought. In all likelihood, these decisions and behaviours contributed to the eventual tragedy, when they could have been avoided. 

The System - is Adversarialism too cruel?

To pretend that the cross-examination of Mrs Andrade was not a potential factor in her death would be naive. The experience was undoubtedly humiliating, traumatic, and emotionally exhausting. As an essential feature of adversarialism, cross-examination is cruel. But it is also necessary.

The adversarial theory posits that the truth is best reached by an equal battle between opposing parties. Both  'sides' have the ability to present their accounts before an independent adjudicatory tribunal, question each other's version of events and ensure no one has, as Richard Moorhead terms it, 'a monopoly on truth'.

The adversarial system thus elicits (in theory) a thoroughly tested body of evidence, judged without bias or vested interest, and secures the individual rights to both defend oneself and pursue justice for wrongs suffered. The process is undertaken orally (as much as possible) and in public, so that the accused can meet their accuser.

Cross-examination of complainants by the defence are essential to this; providing oral testimony about traumatic experiences is generally unavoidable if a prosecution is to be secured. Mrs Andrade's son commented that his mother was 'forced to relive' the awful experiences of her childhood. The sad fact is that this is a necessity in our current system.

The adversarial system in its purest form is certainly brutal - but that is rarer now. Much has changed in recent years. The aforementioned special measures and restrictions on lines of cross-examination have provided significant comfort and protection for victims; but only so much can be eliminated.

The Criminal Procedure Rules impose a duty on all parties to 'respect . . . the interests of witnesses [and] victims' and grant the judiciary substantial discretion in excluding evidence considered to be irrelevant or indulgent. Both a Charter and Code of Conduct for victim's of crime exist. Victim Support provide help and guidance to complainants, and the CPS and Police have dedicated officers designated for dealing with complainants. Complainants are also consulted prior to charge of a suspect - as Mrs Andrade was.

All of this is worth pointing out because complainants are not formal parties to a criminal prosecution. The state charges an individual defendant, usually at the behest of the complainant (in contrast to Mrs Andrade). The matter is thus between those two parties - the complainant is a witness, but does not have formal rights. As such, all of the measures mentioned above form a signficantly more robust framework of rights than a traditional adversarial system would envisage. But they are positive and should certainly be defended.

Some have suggested that the complainant needs be more than a 'bit-player' in the process. While I would argue they already are, any suggestion that complainants should be a party should be treated cautiously. The authority of the state prosecution would be undermined; representation of the complainant may be based on emotional drives such as revenge, fear or hatred, rather than solid evidence and reasoned logic; and the supposedly equal balance between the prosecution and the defendant (who is already at a disadvantage in terms of resources and funding) would be critically affected.

The cruelty of the defence lawyer and the flawed nature of the system have been blamed for this unique but tragic incident, and calls for review and revision have already begun. But before we rush into a rash and emotional assessment of what needs to change, the whole picture should be considered. Hopefully, this comment demonstrates that adversarial criminal justice is a complex interplay of constituent parts; to some extent, its harsh realities remain unavoidable if we are to have a fair and accurate system of justice.

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