Prison & Courts Bill – banning cross examination of victims?

I’d intended to post a speedy, pithy summary of what the new Bill says about the “prohibition on cross examination of victims in family courts”, as it has been described. As it happens however, actual cross examination of actual complainants, alleged perpetrators and third party witnesses has got in the way of that somewhat, and this post is therefore less immediate than I had hoped it would be.

But I still think it is a valuable exercise to summarise what the new Prison & Courts Bill actually proposes. It may not be the cure-all that one might suppose from the ministerial speeches and headlines. I’m not going to do a dry technical analysis, but I’m going to look at the shape of the proposals and their potential impact on real life proceedings and real life participants. I’ll skip over some points of detail.

Section 47 will work by making amendments to the Matrimonial and Family Proceedings Act 1984 (MFPA). The MFPA basically creates the Family Court and defines its powers. The proposed scheme is clearly modelled on equivalent rules in the criminal courts, but for reasons I will address, family court proceedings are a very very different scenario.

The Bill will introduce a ban on cross examination of a victim or alleged victim by the perpetrator in the following circumstances :

  • where the person to be cross examined is the (alleged) victim of an offence where there is either a conviction or outstanding charge (The offence in question has to be a specified offence (essentially most sorts of violent or child abuse offences)). OR
  • where the person to be cross examined is protected by an on notice injunction against the person who would be cross examining (for our purposes the definition of on-notice is wide enough not to be an issue by the time any cross examination happens)
  • (in these cases the (alleged) victim is also not permitted to cross examine directly

It will be immediately obvious that this is NOT a complete ban or even close. Those who work in the Family Court know that very often there is no charge or conviction, either because the victim has been too frightened to pursue a prosecution (it is often the alleged perpetrator who brings the matter to the family court, whilst the victim has been avoiding contact to keep themselves and child safe, because there is insufficient evidence to bring a charge, or because the police have not yet made a charging decision. There will also often be no protective injunction in place : again this might be because the victim is trying to keep safe by changing address and avoiding the perpetrator rather than upping the ante with an injunction, and is then located and brought to court, or because the violence is not current (though the fear may be) – many victims consider themselves sensibly to be safer if they let sleeping dogs lie. In cases where a charging decision is still awaited a catch 22 may arise, because the presence of bail conditions means the Legal Aid Agency may take the view that there is no basis for funding an application for an injunction (bail conditions = job done). These victims will not automatically be protected from cross examination.

As with the criminal provisions, there is a second, discretionary power to bar cross examination where the court thinks that the quality of the (alleged) victim’s evidence is likely to be diminished or where they would be likely to suffer significant distress through the cross examination. In the case of significant distress the court has to consider the wishes of the witness, the behaviour of the (alleged) perpetrator in the proceedings or generally, and any findings in other proceedings  This discretionary category will certainly catch many more cases – but not all of them.

This is most definitely not a ban on all cross examination of (alleged) victims by their (alleged) perpetrators as has been trumpeted.

Where the provisions of s47 apply, the court is required to give the unrepresented person a change to instruct their own lawyer, but if they do not must consider whether it is necessary in the interests of justice to make an order appointing a lawyer to conduct the cross examination on their behalf.

Again, this is not in fact as clear cut as at first appears. The court has first to consider whether it is necessary to appoint a lawyer. Necessary has a clear meaning in other contexts in family law (“necessary means necessary”) and the bar is quite high. The court is probably going to have to consider if some other bodge can be found here (A mckenzie friend, a legal adviser, the judge rolling up his or her sleeves) before concluding that it is necessary.

Although s 47 now refers to the appointment of a lawyer who will “represent the interests of the party” through the cross examination, they are not in any meaningful sense to be considered as “represented”. The lawyer, if and when appointed, is not answerable to the represented party, but the lawyer must conduct the cross examination in their best interests. The accused is not represented throughout the proceedings, does not receive advice or assistance in knowing what directions to seek to ensure that the advocate, when appointed, will have sufficient materials to hand to make a good fist of it. There is a very big difference.

This matters for both parties. It matters for a litigant in person who is responding to allegations of violence. This is not a cure for the absence of legal aid, although it is probably better than nothing. And it matters for the genuine victim of domestic abuse, who will (I would suggest) not be afforded anything like complete protection against intimidation or abusive behaviour by a perpetrator.

Because unlike criminal proceedings where a victim of abuse is simply a witness, who shows up, gives her evidence and goes – the parties in family proceedings are parties throughout. They are thrown together at court – in queues to go through the security arch, in the lift, in corridors, in the cafe over the road – and in the court room itself. Anyone who has dealt with this work knows that these provisions do not eliminate victim intimidation because victim and perpetrator are likely to be in close physical proximity at hearing after hearing, sometimes for hours at a time. And lawyers who remember the days when each party would often have a lawyer will know that it doesn’t take much to give a frightened witness the collywobbles. A look, a stare, a muttered phrase under ones breath when passing, deliberately sitting opposite, bringing the mob to court, a surreptitious throat slitting motion when nobody is looking…It is hard to shield a client when both parties are represented throughout, impossible where one is not. Time spent in cross examination is but a small portion of the time spent at court.

These changes are not unwelcome, but I do not think that they will cure the identified mischief they were intended to, namely the prevention of intimidation of the victims of domestic violence through family court proceedings. Neither do they cure the less well acknowledged but equally significant mischief that arises from the withdrawal of legal aid for those accused of domestic abuse in 2013, although they do place both parties in a marginally better position than they would be without.

There is a further emerging problem in that the MoJ are consulting on the proposed slashing of the rates paid for this work in the criminal courts, no doubt with the intention of reducing them across the board when additional costs begin to be incurred in family cases.

You can read the Bill on the Parliament website here.

 

Who knew? The EU destroyed the traditional nuclear family

ring by Eivind Barstad Waaler on Flickr

“Heaven preserve us from pundits and experts” begins Paul Coleridge, in his recent opinion piece in The Telegraph : Brexit is an opportunity to reverse the tragic decline of marriage in Britain.

Indeed.

I’ve got a right strop on.

You’ll be relieved to hear that I am going to spare you my views on Brexit itself, and will focus on the main hypothesis in this piece, which is basically that in Brexit lies the cure to the social malaise that is epitomised by the decline in marriage and the epidemic of single mothers.

For those wondering whether this connection between Brexit and marriage is entirely opportunistic, it is apparently National Marriage Week. So, whilst for the other 51 weeks of the year Brexit is more commonly described as a metaphorical divorce (a metaphor that has endless potential), this week the tables are turned :

So, with that in mind, let me explain why our decision to exit the European Union and revert to full self-government of the UK might revive marriage and enhance family stability.

Oh, go on then. Hit me with your hypothesis…

Apparently it boils down to national psychology. We joined the EU out of weakness not strength. And the EU has caused our “traditional independence and self-confidence [to] wither”.

Also, there’s some statistics and a graph. We are told that before EU 90% of new parents were married, but now we’ve got 2 million single parents – we are presumably intended to infer some sort of causal relationship between our membership and this devastating social decline. I’ve no quibble with those statistics, but I will eat my wig if this trend is not replicated in pretty much any western country you care to name whether inside or outside the EU.

If you are wondering how it is that the EU has had such a corrosive effect on us, its all to do with the EUs “behemothic” ambitious legal nannying tendencies. Remember that stoned, satiated look when a baby has just drained the last dregs out of a massive feed? That’s how I imagine poor Britannia, bloated and unable to do anything for herself, swaddled in EU regulations (sorry my metaphor key got stuck down).

Anyway, this particular passage is just my bestie favourite in the whole piece :

And this “State will provide” attitude infected our national domestic life too. The generous welfare system did nothing to discourage family breakdown and it became economically possible for a woman to support children without financial support from herself or a husband. More and more items of our household expenditure were picked up by the State. Notions of individual family self-reliance faded.

Dammit, how I *wish* we could go back to those good ol’ times when it was economically impossible for a woman to support children without financial support (and permission) from her husband. If only it weren’t for women’s pesky notions of individual self-reliance we could go back to those happy days where people were forced to stay in unhealthy and abusive relationships that damaged themselves and their children.

I’ll confess that I’m struggling here to reconcile Coleridge’s enthusiasm for our national spirit of independence with his apparent wistful regret about the development of women’s independence. I don’t think he’s noticed the massive contradiction at the heart of his article. Do you think this might be the point where I’m supposed to suggest Sir Paul should “check his privilege”?

It’s pretty clear from Coleridge’s description here that his vision is of a vast population of single mothers (not fathers) all happily claiming benefits and lounging on sofas. Look at the passage above – it’s not men who unfortunately also become economically able to leave, thereby wrecking society with their selfishness and the emergence of “individual self-confidence” to leave abusive relationships. It’s just women. In this dystopian landscape there are no self-reliant working women or feckless fathers, and probably no benefit dads with care. It’s just us girls spoiling things by not letting our husbands provide and be independent for us.

Quite apart from my feminist rage, there is another huge non-sequitur in Coleridge’s argument. The capacity of a parent or family to be independent (or not) is nothing to do with marital status. It is to do with wealth, and to do with the economic on-costs of relationship breakdown (whether married or cohabiting) – two households cost more to run than one. Marriages break down too.

Coleridge neglects half of the equation. It is basic logic that for every single mum there is a single dad somewhere. And when I last checked, being unmarried or separated did not relieve the absent parent of his (or her) obligation in law and conscience to maintain a child where that parent is financially able. Much (though not all) benefit dependence is a function of the failure of an absent parent to honour that duty (sometimes wilfully but sometimes because it genuinely cannot be done). A failure to maintain is something that in my experience both formerly married and former cohabitants are equally likely to be guilty of (indeed many with assets and a decent income may resist marriage precisely to ensure their poor partner never acquires any marital rights).

I’ll skip over the usual Marriage Foundation marriage propaganda about how children of marrieds do better blah blah blah (completely unconnected to the fact that marrieds tend to be better off, and entirely down to the magical magickness of marriage as a thing).

 

Coleridge finishes with this :

Of course, no one could sensibly suggest that Brexit is a magic bullet for the restoration of the stable married family. 

(says the man who has just written an article pretty much saying that exact thing).

I prefer to switch that around and say that no one could sensibly suggest that marriage is a magic bullet for our social problems. And my humble prediction is that the only impact Brexit will have on marriage rates is probably those poor families including one parent is an EU citizen from another member state who are desperately trying to work out how to secure their right to remain together with their family post Brexit.

 

Feature pic courtesy of Eivind Barstad Waaler on Flickr – thanks!

Parliament on d.v. : turns out its not so easy to ask the right questions…

There was an important debate in Parliament today. The government was put on the spot about the scandalous cross examination of victims of rape by the perpetrators of such abuse. It is a shame that the video footage of the house shows so many MPs making a break for the cafe just as it started.

That this issue is being tackled (or is about to be tackled) is a good thing. It is unfortunate that it has taken so long for people to wake up to it. But I have to say that the framing and depth of the debate about this really important issue leaves something to be desired. And it does not give me great confidence that the solution will necessarily resolve the real issue.

There is some real flabbiness of definition here : There is (still) no delineation between complainant and victim, accused and perpetrator, alleged abuser / rapist and actual abuser / rapist. This should not be too hard to grasp. The presumption of innocence should not be a novel concept for our elected representatives to grasp.

Many, maybe most, of the (mainly) men accused of domestic abuse are responsible for some level of bad behaviour. Some will be guilty as charged by their ex. In other cases there is a much exaggerated grain of truth at the heart of a schedule of allegations. And some, we cannot say how many, will be innocent.

But in this really important debate about how we do justice in the family courts, this debate that has had the attention of Parliament as it rightly should – we have forgotten those victims. The victims of false or grossly exaggerated charges made wilfully or through confabulation. Maybe it’s easier to see things from only one perspective, but this isn’t about what’s easier. How can we talk about justice if we can only talk about justice for one party?

And so, the debate trundles on about why we ALLOW men to cross examine their VICTIMS. We shouldn’t allow such cross examination because we have to protect those complainants who ARE victims. But the corollary is : nor should we COMPEL victims of false allegations into having to cobble together their own cross examination, having to face a person determined to see them destroyed, having to do so without the legal aid that their accuser is entitled to. Because some of those “perpetrators” will be just that – victims who are struggling to fight off unjust allegations in order to preserve or establish a relationship with their child. Not all of them, some of them will be nasty, nasty pieces of work who (we will all agree with the benefit of hindsight after a thorough trial) did not deserve representation. But we will at least know that when the trial is over the decision is both fair and robust. And as good an approximation to “truth” as we can achieve.

I think we need to have this conversation – about the men who might not be abusers – before we rush headlong into solving this problem with the sticking plaster of appointing counsel to cross examine but not to conduct a trial or to advise an accused parent.

Not just for the sake of the innocent accused, but also for the sake of the genuine complainant. Because a family court is not like a criminal court. And a family case is not like a criminal case. Yes, it offers a whole arena in and through which a controlling man may continue to attempt to exert control. And yes, our haphazard system may inadvertently facilitate that in some cases. But there are other distinctions too.

Firstly, in the family court the parties are just that – parties. The complalnant is more than just a witness. They are a participant in the entire trial process. And as such the need for protection goes far broader than mere cross examination. The flip side is that the need for an accused to be protected against accusations that he has attempted to manipulate the trial process to exert continuing control over his victim runs throughout the litigation / trial process. An accused litigant in person can be very vulnerable indeed.

And secondly, that the parties do (usually) have a child together. This means that, however uncomfortable it may be, in all but the most exceptional of cases there will have to remain some connection between the parties for a long time – even if it is entirely indirectly through third parties.

And thirdly, because the family court can make very draconian orders – it can suspend or even terminate a relationship between child and parent – based only on evidence to the civil standard of proof. In brutal terms it is far easier for a person accused in the family court of some awful crime to be found to have perpetrated that act than in a criminal court. Again, the accused is vulnerable. And the consequences are different, but are potentially every bit as grave and lifelong as in the criminal court.

Finally, it is worth reflecting on the illuminating heading of the debate in Hansard : Domestic Violence Victims: Cross-Examination. It is broadly drawn. It is not just about rape victims any more. When ministers are reconsidering this issue and formulating proposals they need to take some real care to distinguish between the position in rape cases (specifically provided for in criminal courts) and the position in the spectrum of other cases of domestic abuse (again there are provisions in criminal courts but they only apply where the court considers that the quality of witness evidence is likely to be diminished by direct questioning). Any proposals need to distinguish between cross examination and broader participation in the trial process. They need to distinguish between : cross examination about alleged abuse (to prove or disprove it), cross examination about other matters in a case which involves (or has involved) allegations of abuse, and cross examination in a case which is nothing to do with domestic abuse but where, incidentally there is a background of domestic abuse between the parties or between a party and a witness (for example financial or civil matters between ex partners). The answers called for in each scenario might be rather different. I’m not sure the debate so far has teased any of that out.

It is really encouraging to see Parliament taking an interest in these important issues. But it is profoundly depressing to see the massive blind spot that our Parliamentarians seem to have to one whole side of the discussion – and one whole half of their constituents: the accused, who we insist on calling perpetrators as if we have entirely forgotten about the purpose of the trial in the first place – to establish guilt. Not once in the debate did anyone use the proper terms complainant and accused. Not once did anyone avert to the possibility that an allegation might not be true. It is this one eyed perspective on family courts that got us into this post-LASPO mess in the first place.

And it is profoundly depressing to see it now enter into the Hansard records as fact that “a quarter of domestic violence victims face cross-examination by their abusers.” And not just because of the use of those terms victim and abusers :

Women’s Aid have done valuable work on this topic, and it is largely thanks to their massive campaign that people seem to be sitting up and listening. They deserve credit for it, although I do not always agree with their methods or adopt unquestioningly all of their bold assertions. But the 25% statistic used by Oliver Heald does not come from court statistics, not from any proper research and it is unverified. It comes from a Women’s Aid survey of their own service users, which they have yet to answer questions about (see my previous posts about that here) [update 11 Jan 17 – they have now answered, see here]. The danger in such concerning but basically anecdotal and subjective evidence is that it may not be reliable or may become distorted by the process of stripping out important context. A striking example of this is the account given by an MP in the course of debate today that a “convicted murderer…sued for custody of their child from the prison where he was serving a life sentence for murder”. It seems highly unlikely that a person serving a life sentence for murder would be pursuing an application for a child to live with him. Instead it is far more likely that he was asking questions in the context of pursuing contact or was responding to an application made by extended family wishing to care for the child in light of the mother’s murder. Although it will have undoubtedly been very difficult for the witness, whose sister had been murdered by her questioner, it is of course not an example of a perpetrator cross examining his victim at all. We don’t know the details, and it must be right to expect the court dealing with such an application to control the court process very carefully – but it is difficult to draw conclusions from such snippets – for me this is a powerful illustration of the danger of anecdote.

That the minister for courts and justice Oliver Heald is happy to simply adopt the Women’s Aid guesstimate as fact is an indication of the real depth of consideration here. The minister needs to ensure that the government’s response is to the problem not to the publicity campaign. It all makes me concerned that we will be presented with a quick fix that in fact fixes very little. Let us suppose that a quarter of all victims of domestic abuse are cross examined by their perp (this would be a significant number as it is not limited to rape or serious physical abuse – and thus if we want to ban ALL of it a significant fix would be required). It would be unsurprising if a quarter of all those accused of domestic abuse would also express concern at their vulnerability in having to try and defend themselves against false allegations without help and against a state funded lawyer if asked to complete a survey on the topic. Who is to say which is the greater injustice when we have no proper research on either proposition,  and when our system depends upon us holding in mind the possibility of two alternate versions of reality until after the evidence has been heard?

In saying all of this I don’t minimise the legitimate concerns raised by campaigners and MPs about what is going wrong. But it isn’t the whole story and it isn’t the whole problem. And a mere BAN on cross examination by men who – in the main – aren’t terribly keen on enforced DIY cross examination in the first place is not the whole fix either.