fee paid mckenzie friends – finally some research

Finally, someone, somewhere is conducting some research about fee paid mckenzie friends.

A team at Cardiff University are carrying out a research project which comprises three strands – speaking to mckenzies, speaking to clients of mckenzies and observing hearings involving them and speaking to participants.

If you have used a mckenzie friend who charged for their services they would like you to participate :

We would like to conduct a short, confidential telephone interview with you to find out about your experience of using a McKenzie Friend. We are able to offer a £10 gift voucher as a thank you for your time.

If you are interested in taking part, please let us know by sending an email to McKenzieFriends@cardiff.ac.uk. Alternatively, you can telephone Leanne Smith on +44 (0)29 2087 4913.

I think that’s really important because a lot of us are quite worried about mckenzie friends and the harm they sometimes do to clients and their cases (both fee paying and non-fee paying) – but there is very little hard evidence about how widespread the problem is. If our anecdotal experience is wrong, we can relax a little, but if it is consistent with a wider pattern then it is really important this is demonstrated objectively so that the powers that be can take action to protect people.

The project is funded by The Bar Council (who have a particular position on this issue, although they (and I) would say for reasons of public rather than self-interest). However, whatever you think of The Bar Council’s position, the research is independent of them and being carried out by respected academics at a reputable university.

You can read more about the project here.

Manchester gig

I’m off to Manchester in November to talk at a smashing conference organised by MMU. I’m of the generation where gigs in Manchester are supposed to be all about indie pop, but fortunately I won’t be doing my Oasis impression, but instead will be talking about something transparency-ish (for those of you who are interested in that sort of thing), whilst other far more impressive speakers are covering a range of really interesting topics. It looks set to be a wonderwall day.

I’m told that you need to book by 31 October, and you can book here.


We Believe – doing violence to due process

Note : I’ve used “r*pe” throughout this post to stop it being flagged as rated 18. I’m not being oversensitive, but use of the full word without asterisk can cause things to be blocked.


This blog post has been rumbling around inside me for some time, waiting for me to find time to write it. It has been giving me indigestion. And it won’t go away. This last weekend’s frenzied and ill informed condemnation of the Ched Evans retrial verdict has galvanised me into action. Nobody seems able to talk about it without accusatory language.

I am really concerned about the conversations we are having (and not having) in public about domestic abuse and about violence towards intimate partners. We are talking about it all the time, but I don’t think we are doing very well and I don’t think the way we are talking about it is advancing the cause of condemning such violence and of making people safer. I think the debate is polarising and unhealthy, and I think it is diminishing the complexity of the issue. It is promoting disengagement and rejection by some groups of the fundamentally crucial and righteous message that violence towards those we love or have loved is unacceptable, and is harmful to those children who hear or see it. Our public debate is as dysfunctional and toxic as the abusive individual relationships we are talking about, and the intractable battle to control and dominate the narrative is sadly familiar to those working in the family courts. We see it played out in private and in individual cases, but it happens on the macro level too – and the one drives the other.

The motif that sums this up for me is the hashtag #webelieve (or #ibelieve or #ibelievewomen). Because ultimately, what is this hashtag other than a badge that says we believe anyone who calls themselves a victim of domestic abuse or sexual violence, and we are not prepared to look at the individual circumstances of each case before making our minds up? #webelieve is not prepared to consider the evidence, is not prepared to accept the outcome of a trial process, is not prepared to countenance the possibility that some (perhaps a very few) of the people #webelieve might have misremembered, misidentified, have been coached, exaggerated or even falsified their account (yes, false allegations may be rare but they do happen). Or just that the evidence isn’t there to prove the thing to the necessary standard.

#webelieve is ostensibly about securing justice for victims – ensuring that they are heard, believed, that they are not re-traumatised by a brutal and (potentially) abusive trial process, or put off from pursuit of their complaints. Those are all entirely legitimate aims. But the sad reality is that since it’s inception in (I think) about 2014 in the USA in connection with sexual assault and campus r*pe issues – see here for example) #Webelieve has become more about moral outrage than actual justice. And anyone who questions the premise is said to be a r*pe apologist. Therefore, I fully expect to be tarred and feathered for questioning the narrative. Bring it on. I want actual justice for women (and men) who are victims of physical or sexual violence. And we don’t get that by sidestepping a proper process or by failing to sift the truthful, evidenced allegations from those that are untrue or can’t be substantiated – what we get with a blanket #ibelieve is a degradation of the issue and a reduction in the perceived credibility of genuine victims.

We see this in debate about campus r*pe, in discussion about celebrity domestic violence, in treatment of domestic violence that doesn’t quite fit our male perpetrator : female victim (once a perp always a perp) model (we really can’t cope with that, see here – life is complex, relationships are messy. Even women do bad things sometimes). And of course we see it in connection with the historic child sex abuse inquiry and the broader debate – all attempt at forensic rigour appears to have simply been abandoned and an allegation is as good as truth, is equivalent to proof. Except when it all unravels as demonstrably untrue or impossible as has happened in a significant number of celebrity historic SA cases.

Take the Ched Evans acquittal last week. Whatever we think of Ched Evans (and I doubt many of us think very highly of his approach to women given his admitted conduct) a jury of our peers has heard all the evidence and was not sure enough that he r*ped X to convict him. Perhaps they thought he was entirely innocent (of r*pe, rather than his general behaviour), but we will never know. Whatever the ins and outs of the jury room discussions though, that’s an end of it. Except that twitter has gone wild. And (I’m sad to say) the Women’s Equality Party (@WEP_UK) were feverishly tweeting about the “flawed retrial [that] raises grave concerns about justice for victims of sexual violence” (and less feverishly ignoring tweets from actual lawyers pointing out that the trial appears to have been conducted in accordance with the law and with due regard for the restrictions on the introduction of evidence about the victims prior sexual conduct). They said “This put the victim on trial, not the accused. Historical evidence of consensual sex does not preclude the possibility of r*pe.” Notwithstanding the obvious fact that if someone has suffered the horror of r*pe, the experience of giving evidence about that r*pe will be horrid, it is and I hope will always be considered necessary for evidence to be adduced of the fact of the r*pe before someone’s reputation is ruined and life altered. This does not mean a victim is “on trial”, but it does mean her (or his) evidence is being tested. That can be tough – and I don’t underestimate that : r*pe is awful, as is reliving it. But it is also awful to be wrongly accused, condemned or convicted and we must never forget that either. We must strive to make sure trials are fair to all, but we can’t abandon them altogether. I don’t suppose WEP really mean to suggest that the burden of proof should be reversed in these cases, when they say “historical evidence of consensual sex does not preclude the possibility of r*pe”. I agree it doesn’t, but where exactly does that get us? If it did preclude the possibility of r*pe I guess the trial would have been unnecessary. And I guess if #webelieve a survivor, survivors per se – and know better than any jury that actually heard a survivor’s own evidence, our trial process is also worth pretty little. Juries get things wrong, judges get things wrong – but very little of what I’ve seen about Ched Evans’ trial appears to set out a proper legal basis for complaint, it’s largely just raw disbelief – because someone has made an allegation…(one or two have quite legitimately complained that the Court of Appeal decision on admission of the new evidence was weak. They are entitled to do so. I don’t feel qualified to comment authoritatively on that).

I commend to anyone banging their head against the desk or slightly confused about this case to read Secret Barrister’s excellent 10 Myths busted about the Ched Evans case, which explains many of the follies out there. As others have pointed out, one can be a bit of a turd, one can treat women like dirt, but in and of itself this does not amount to sufficient evidence to prove the specific crime of r*pe. Much of twitter seems unable to draw the distinction, and I’ve no doubt the hysteria being created by womens’ rights groups about the injustice of Ched Evans’ acquittal is making many real and anguished victims less likely to come forwards. Well done there.

This paucity of intelligent discussion is not a new issue. I’ve been raising concern about the debased and polarised public “debate” about domestic violence for some time. See here for example about the Womens’ Aid 19 Homicides report published earlier this year (I’ve yet to see any acknowledgment or response to the issues I raised): 19 Child Homicides and here : Talking AT & OVER not TO & WITH.

2016 is littered with further evidence of our dysfunctional public debate, our weird distorted victim culture in which the taking on of the mantle of victimhood makes people somehow unchallengeable, or anyone who dares to test that victimhood as good as a perpetrator…I often wonder about victim culture, and whether it has gotten out of control – I’m not sure our insistent victim focus is helping anyone. I noticed today the recent publication of a consultation about vulnerable witnesses in criminal courts – I spotted it via a tweet from Dr Hannah Quirk, who observed the absence of any mention of fair trial for the defendant…

Courts reform gives stronger protection for victims & witnesses-not even a token mention of fair trial for defendant gov.uk/government/new…
29/09/2016, 09:51

Around the same time as the consultation was launched back in September (in the culmination of their campaign launched in January with the publication of their 19 Child Homicides report) Womens’ Aid took their criticisms of the role of Family Courts in failing victims of domestic abuse to Parliament, see here MPs call for end to abusive men using courts against families. The event was foreshadowed and accompanied by a significant (social) media campaign and at the event a number of MPs adpoted the Womens’ Aid line :

Peter Kyle, the Labour MP for Hove, said: “The family courts are being used to perpetrate abuse against extremely vulnerable women … One of my constituents has been cross-examined by her former partner on three separate occasions, the man who beat her, broke her bones and battered her unconscious.”

He said a transformation of family courts was “desperately needed” to end the “abuse and brutalisation of women” via the legal system….

Angela Smith, the Labour MP for Penistone and Stocksbridge…said the family courts needed to properly implement “practice guidance 12 J”, which is supposed to force judges to put the safety of children and their residential parent before the access rights of a violent and abusive parent.

She highlighted the demands in the Women’s Aid report for an end to the cross-examination of a survivor by an abuser in family courts, and for special protection to be brought in, such as separate waiting areas, to keep victims safe from violent partners in court buildings.

Smith said there was a need both to end the assumption that men who were abusive to women could be good fathers, and to embed a culture in the family courts of putting children first…

Keir Starmer, the former director of public prosecutions and Labour MP for Holborn and St Pancras, said it was important to look at the changes made to the criminal justice system to better protect victims of domestic violence – including special measures for victims and witnesses, and the presence of independent abuse advocates – and ask why the family courts were not making similar changes. 

He said there was growing evidence that perpetrators of domestic abuse were using the family courts to continue to harass and control their victims…

The article also made reference to the All Party Parliamentary Group report on Domestic Violence, published in April, which I’ve commented on here which makes some valid points and identifies some real problems, but which shares some of the flaws I think of the Homicides report (no doubt not unconnected to its heavy reliance on the homicides report and Womens’ Aid’s evidence).

A blog post on the MRA-UK site says this :

The blame here lies with the MPs. A lobby group cannot be expected to be balanced. But MPs are under an obligation to represent everyone fairly, and are assumed to be intelligent enough to seek balance. Instead it appears that our parliament can very easily be led by the nose by a lobby group which presses the right emotional buttons.

I don’t agree with everything in that blog post but this is spot on. There is so much more complexity to these issues than is being presented. And there is no balance in the debate.

I don’t doubt or minimise these individual stories. I don’t deny that in those cases, and probably in others, things don’t appear to be working as they ought. But I think we are focusing on the wrong issues. It is the job of a family court to test the evidence. It sometimes feels as if the courts are being criticised for carrying out that job. If the Family Courts are failing sometimes to do it as well or as sensitively as they might (and I know that is so), we need to focus on the barriers to doing the job better and more consistently – not on criticism without acknowledgment or understanding of those barriers, which are largely out of the control of those working in the courts themselves.  Accompanying the Guardian article I’ve cited above was a welter of tweets from MPs, and  a slew of tweets from Womens’ Aid about the (then) culmination of the Helen Archer trial, in which it was asserted the failures were not just about operational and resource issues but a fundamental failure of understanding:

This was also repeated by Polly Neate (CEO Womens’ Aid) at greater length in articles like the one linked to and here in the Telegraph :

I wish I could say that justice was the outcome for all the real-life Helens. But this is not the case – in either the criminal courts or the family courts.

There is an acute failure in both to understand the dynamics of domestic abuse, especially coercive control. More specialist training on domestic abuse is needed for all who work in them, especially judges.

After the acquittal Womens’ Aid predicted (wrongly as it turned out) that the family courts would fail again:

And finally, inevitably, the hashtags #webelieve and #freehelen converged :

Thus we saw The Archers (of all things) used as a lobbying vehicle by Womens’ Aid and other DV groups.

There is a fundamental cultural difference between the many groups that support and campaign on behalf of women victims of domestic abuse and the courts. It is not so much the fact of the cultural difference that is the problem as our inability to acknowledge it. Courts don’t do #webelieve, they do looking at the evidence from both sides before making up their minds. Evidence first, judgment follows. Support groups are all about #webelieve. Rightly, from one perspective, they accept what they are told by services users and clients and operate on the basis that if someone says they are a victim they are entitled to be believed. The very real risk of the #webelieve mentality contaminating the evidence and even encouraging the making of allegations is the subject of a whole different blog post (suffice to say that it can both put victims at risk of not being believed and put innocent parties at risk of false allegations or criticism. See here by way of example). It was easy to feel as if the verdict in the Helen Titchener case was right, not just because we were safe in the knowledge it was fictional, but because the listener was in the privileged position that no support worker, no lawyer, no judge and no jury can ever be – a fly on the wall as the abuse happened. Who knows whether a real Helen Titchener would have got off (I think probably not) – even I as a family barrister can see that the trial and pre-trial process itself was nothing like real life and things would have unfolded very differently so it’s impossible to reconstruct with just a tweak (I wrote about the trials here). Helen Titchener’s barrister passionately believed her client, but although she miraculously got her off it doesn’t seem to have made her a better representative (for example her incessant coaching in order to get the “right” evidence).

But in real life we don’t have the luxury of such certainty or inside knowledge or the easy abandon of fair procedure. We have (usually) only the accounts that two people tell us, mutually incompatible as they are. So the #freehelen hashtag was easy. There was only ever one side of the fence we listeners could be on, the side of #solidaritea with Helen, thus signalling our virtuous understanding of the scourge of domestic abuse and coercive control. No need to engage with the messy uncertainties of real life or the very real practical difficulties of securing a finding of coercive control even on the civil standard let alone in a real criminal court :

Taken to its logical conclusion #webelieve demands that we abandon any forensic process because such process is unnecessary when WE KNOW BETTER. And what’s more it tells us that such process is itself abusive, so those who argue for fair trials are part of the abuse. I reject such binary propositions, such lazy complaints. Court process can be used manipulatively, and in a controlling or abusive way – I have seen it happen and we must all be alert to it. We do fail sometimes to do justice to these cases (I include myself in this). But we cannot abandon evidence for hashtag justice or we are all doomed. We are an intelligent species. We can hold in mind two possible alternate realities whilst we listen and decide. And we must be prepared to do so, not condemning either complainant or accused whilst we carry out that process respectfully and calmly.

It is very sad that there are so many campaigns and campaigners whose aim is to protect women and to educate the public about this awful, difficult, complicated stuff that hurts so many people – and yet somehow many of them have become collusive with the shutting down of proper discussion of the complexities of abusive behaviour and the ways in which the justice system responds. We cannot conquer abuse by silencing or ignoring those who challenge us.

I hope this post doesn’t sound like a vehicle for bashing Women’s Aid or any other group for that matter. I’d genuinely like to have a discussion about this, and am happy to hear where I’m wrong – but sadly that has not happened to date and I’m not holding my breath. I have thought long and hard about whether I’m an inadvertent apologist for the system in which I work, but I hope I’ve made clear I share some of the criticisms that are made of it and welcome what can be learnt by listening to other perspectives. I disagree with much of what the mens rights lobby say about these issues too, and whilst that hasn’t been the focus of this blog post it has been of others. In my experience neither “side” of this debate listens very well to the other.

If #webelieve in justice, we must let each person say their piece before we rush to judgment.