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.