Oh and by the way, the General Election has messed up Family Court reform…

Have been meaning to write a short post observing that the Prison & Courts Bill, which contained draft proposals to deal with the vexed issue of direct cross examination of alleged victims of d.v. by their alleged perpetrators and enabling provisions to allow the online court reform programme to move forward, has been ditched in light of the election.

That is to say, it is no longer going to be considered in this Parliament, and we will have to wait and see whether the new Government (either a "stronger and stablerer" May Government or some other sort of Government) has the time or inclination to put this back on the table. Once can foresee that other priorities such as the "Great Repeal Bill" might take priority (much like disguised compliance which means the exact opposite of what it says, this would be a Bill that would repeal one thing and enact a million others into our law, but hey), but it's difficult to tell what sort of space in the timetable will be left for other ongoing work. Other factors which increase the uncertainty are the increasingly frequent news articles speculating that our Lord Chancellor Liz Truss, who is of course responsible for this legislation, is not going to last much longer in that post.

So we will have to wait and see. But at best this means some delay in getting these reforms through. At worst it means they disappear into the long grass of Brexit.

For those who enjoy an exercise in futility you can read what I said about the Prison & Courts Bill when it was still a thing here, and what David Burrows said about it in a guest post here.

Lord Chancellor announces judicial sentencing incentivisation schemes

The Lord Chancellor, Liz Truss will today announce a radical new scheme designed to ensure that criminal sentencing is tougher and more effective. The move is rumoured to be the brainchild of Tory MP Philip Davies, who has previously called for measures to ensure that judicial leniency is stamped out. It will be implemented through an amendment to the Prisons & Courts Bill, which is currently under consideration in Parliament.

Mr Davies welcomed the proposals, saying

"It should be clear to many that where a judge consistently allows offenders to avoid prison and those offenders go on to make others suffer as a result of their continuing crime spree, there should be accountability for the judge...And there should really be consequences for that judge as well. In particular, where they don't hand down custodial sentences which would be perfectly justifiable and possibly even expected, and particularly when the offender goes on to reoffend."

Under the so-called Cell-based judicial Rehabilitation Administrative Penalty scheme, judges who deliver sentences which are later increased via the existing unduly lenient sentencing procedures, will be required to serve a sentence themselves equivalent to the difference between the original and the enhanced sentence - although for judges of good character this will be suspended in the first instance. Judges who fail repeatedly to adhere to the sentencing guidelines will also feel the impact upon retirement. Draft secondary legislation seen by this site states that "the daily cost of judicial accommodation and subsistence during periods of incentivisation will be deducted pound for pound from the capital value of the offender's judicial pension fund".

The scheme will be rolled out in parallel with the digitalisation of prisons and courts and a pilot of late night court sittings. A spokesperson from the Ministry of Justice said that

"the rollout of digital justice will mean that judges will be able to continue carrying out their judicial functions whilst detained, their cells operating as pop up courts. It is important that all categories of prisoners are gainfully employed whilst incarcerated, in order that disruption can be minimised and rehabilitation maximised and this will both enhance judicial efficiency and assist with the rehabilitation of other offenders through the modelling of good behaviour and respect for the rule of law."

Asked whether or not this scheme had negative implications for the independence of the judiciary or the justice system more widely, a spokesperson said that judges would be able to access the support of McKenzie friends to assist in the preparation of their defences, and with getting the videolink to work.

Judges have privately condemned the scheme, which they complain would deprive them of their right to a private judicial privy. However, they may be buoyed by news that the digital justice reforms do not look likely to render them redundant just yet, as confirmed by lawbot entrepreneur and HMCTS consultant Joshua Browder :

 “The law involves a lot of compassion. For example, [when deciding] whether someone should be granted bail. I think it is difficult for a bot to replace that. The legal system requires humans; technology isn’t allowed to argue in court.”

Asked about possible plans to replace judges with judgebots, a Ministry of Justice spokesbot said

"The Ministry remain committed to the utilisation of human resources, and are piloting a range of measures designed to maximise the efficiency of humanoid analogue forms of decision making. For example, drawing from studies showing that judges who have too much sleep tend to sentence more leniently*, we are experimenting with late night court opening as a way of nudging our judicial resource towards more appropriate sentencing practices." 

*see one such study here.

According to The Gazette, late night court opening is being piloted in

  • Newcastle and Blackfriars Crown court
  • Sheffield and Highbury Corner magistrates’ court
  • Brentford County Court and Manchester Civil Justice Centre

The Criminal Bar Association has raised concerns that the pilot scheme is likely to create a sentencing postcode lottery.

 

 

 

...Yes, it is April 1st. And most of this is untrue (not all of it though!).

 

Pics, Open Govt Licence from gov.uk website.

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.