LLB Student at the University of Hertfordshire
Cross examination refers to the questioning of a party or witness during a trial, hearing or deposition by the opposing party whom require the person to testify, to enable them to evaluate the truth and reliability of their testimony, often to enable them to develop it further. The questions during cross-examination are limited to the subjects covered in the direct examination of the witness. Leading questions may be asked and a strong cross-examination can force contradictions and expressions of doubts. Cross examination on victims can be extremely difficult and personal, often involving reliving emotional periods of their lives. This particularly runs true to those involved in crimes of a sexual nature, such as sexual assault and rape.
The cross-examination of Frances Andrade, who was in the witness box over indecent assault allegations against her former music teacher, Michael Brewer, makes for very uncomfortable reading when you know that a few days after her court appearance she killed herself, describing her cross examination like being “raped all over again” a deeply upsetting and harrowing statement. “That is simply not true…” “This is a lie” and “you are indulging in the realms of fantasy…” are words uttered by the defence barrister, Kate Blackwell. Brewer was eventually found guilty of five counts of indecent assault. But during her time in the witness box, Andrade was very clear about the effect that the aggressive tone of questioning would have. “This is why cases don’t come forward,” she told the QC. “I am not in the realms of fantasy and I really understand why so many cases have not come to court.”  Now Prime Minister, Theresa May, acknowledged the point in an interview. Sadly, after Andrade’s death, and said the fallout from the case could have an extremely negative effect. “I fear that others may be put off from coming forward rather than encouraged.” However, this intrusive questioning and court process remained the same, with many victims being familiar with the process of going to court and having their evidence torn apart in front of their eyes.
Tina Renton, who was assaulted and raped by her step father as a young girl, knew the process would be a difficult one, with many people questioning her statements. The defence lawyer, Mr. Brown, described her as “lying” and kept going over the same things to try and “trip her up” “The embarrassment… I had to talk about the most intimate things that I hadn’t shared with anyone except a police officer, to relive all those moments I had only been brave enough to tell the police officer and never anyone else…” Tina describes herself as still having nightmares about her time in the witness box, in spite of her step father’s conviction. Despite it being the defences job to cross-examine, the reoccurring problem seems to be the unnecessarily callous and gruelling questioning. Victims have also reported being asked about their sexual history and their number of sexual partners “Ivy”, a rape victim, was told at a ground rules hearing that her sexual history would not be used at trial. However, in court she was asked by the defence how many sexual partners she had had and was alleged to be promiscuous, without the judge intervening. Another victim, “M” was asked during cross-examination why she had chosen to wear a red dress on the summer’s day where she was attacked by a stranger. A study by the Northumbria court observers panel of 30 rape trials between January 2015 and June 2016 found questioning of the prior sexual conduct of the victims in 11 cases. In 4 of the cases, in disregard of the rules, applications to allow such questioning were made on the first morning of the trial or after the trial had started. Author Dr Olivia Smith, a criminologist at Anglia Ruskin University, said: “Defence barristers are still drawing heavily on misconceptions about rape to appeal to a jury and advance their case. The questioning of victims can border on intimidation and interrogation and make them feel as though they are the ones being accused” something that doesn’t happen with other crimes.
MP Liz Saville Roberts is launching a bid to stop alleged rape victims being cross-examined in court about their sexual history or appearance. She said: “It is neither right nor just that a victim of rape can be questioned in court on matters not relevant to the case in hand. Yet in the recent past, victims have been humiliated by lawyers asking questions about their sexual partners, their clothing and appearance. Such practices will undoubtedly make victims reluctant to come forward and more likely to drop complaints, and there is already anecdotal evidence that high-profile cases involving such evidence being used has led to a drop in the number of women who are coming forward.” The Private Members’ bill is aimed at giving victims more confidence in coming forward to report crimes of a sexual nature. A review into the laws protecting alleged rape victims was also launched. It comes after the Ched Evans retrial jury could hear details about the sexual history of the complainant. With Lady Justice Hallett ruling Mr Evans’s case was “rare”, in which it would be appropriate to allow “forensic examination” of the woman’s sexual behaviour. The core purpose of this Bill is to prevent such intrusive and damaging questioning. It is said to replicate the so-called Rape Shield Law which exists in Australia, Canada and most of the United States and prevents a complainant’s sexual history from being used in a trial as an indicator of the victim’s character. The Sexual Offences (Amendment) bill was given its first reading at the House of Commons on the 8th of February 2017 with the second reading scheduled for the 24th of March 2017, one can only hope it is passed to enable victims the protection they so rightly deserve.
 Seeing is believing: The Northumbria Court Observers Panel. Report on 30 rape trials 2015-16. Report by Ruth Durham, Rachel Lawson, Anita Lord and Vera Baird DBE, QC.