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.

 

8 thoughts on “Prison & Courts Bill – banning cross examination of victims?

  1. It is a pity you are so disparaging about the proposed s 31V in clause 47 of the Prison and Courts Bill:

    ‘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.’

    Some might say this was an important step forward.

    The proposed s 31V in fact deals with ‘alternatives to cross-examination in person’ where the court considers there is no satisfactory alternative to cross-examination by the defendant (‘B’) (s 31V(2)). In provisions which precisely replicate Youth Justice and Criminal Evidence Act 1999 s 38 (which, as far as is known, is working as well as it can be) the court must invite B to appoint an advocate (for which he will only rarely have legal aid). If B cannot appoint his own advocate the court must consider whether it should do so (s 31V(5): exactly as in YJCEA 1999 s 38(4)). The court advocate (C) appointed ‘represents the interests’ of B, but – according to s 31V(7) (as with YJCEA 1999 s 38(5)) – C ‘is not responsible to’ B. As in YJCEA 1999 s 40 funding can be provided; save that in Cl 47 it is by more easily revocable regulation; whereas in YJCEA 1999 it is by primary legislation.

    This would answer the concerns of Roderic Wood J in H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 and more recently of in Re K and H (Children: unrepresented father: cross-examination of child) [2015] EWFC 1 His Honour Judge Bellamy sitting as a Deputy High Court judge (reversed on appeal: Re K & H (Children) [2015] EWCA Civ 543 sub nom K and H (Private Law: Public Funding) [2016] 1 FLR 754) and of Sir James Munby P.

    So, credit where it’s due – if this bill is passed, and it is brought into operation – many would say that, as with crime since 1999, that family law had finally caught up. It is for the judges – not the funders, unless the regulations are malign – to determine what sort of ‘bodge’ is provided for a s 31V(5) advocate to cross-examine (‘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’: on what is this assertion based?). I doubt that many judges in the family courts will be keen to ‘bodge’ in the way you suggest.

    PS two small points – bills have ‘clauses’, which become ‘sections’ if the bill is enacted; and only Matrimonial and Family Proceedings Act 1984 ss 31A-31P brought in the ‘family court’. The original 1984 Act did a lot of other things as well….

    • I’m not disaparaging. It is an improvement. BUT. I think its important to counter the PR / hype that suggests there is an out and out ban and its a huge victory for justice that is already in the bag. Its a lot more nuanced, uncertain and partial than that.

      As for bodging, the court of appeal have hitherto been happy with such bodges so there is some authority for the proposition that they are legit. That said, I don’t see anyone appealing a judge who feels liberated by these provisions to leap at the chance to appoint a lawyer (except the malign perp who actively wishes to cross examine directly for kicks and is prevented from doing so. I think those are few and far between in reality).

      And, yes I know MFPA does much more than just this, but that is not relevant for the purposes of this piece or to the readers of it.

  2. I’m rather interested Lucy, in your perspective as a member of the Bar, as to whether you could properly just come in and parachute into just the cross-examination of the alleged complainant without dealing with any other aspect of the case if this comes about. And how it would work in practice. Do counsel get paid to read the papers? To have a con with the client? To take instructions on the detail of the allegations and the client’s areas of challenge?

    Frankly, if the idea of this is just to pay counsel for the two hours that they are on their feet cross-examining, it seems like something that will very rarely happen in practice – particularly given that the precise time that a witness would begin their evidence is hard to predict given the weird way the Court lists operate. It is hard to see a member of the Bar being willing to step in and undertake what would be very challenging cross-examination with no proper prep time, with the attendant risks of not being able to carry out their Core Duties with all that flows from that.

    • These are all questions I have posed elsewhere. I don’t know the answer. There have been a couple of members of the crim bar who do this sort of work and have commented on earlier posts about this (Damned if I can locate where) – one suggesting it all works fine and the other saying its terribly unfair for defendants and a travesty (I paraphrase). I don’t know in practice how it works in crim cases, and I’m not sure how it would work in family cases (the logistics are somewhat different). The difficulty is that all of this important detail is left to secondary legislation. One might glean some idea of how it will work in the existing regs for the criminal scheme (hoping someone will tell me what they are called and where I can find them!), but it is of course never sensible to assume anything! I would certainly find it very difficult and discombobulating to be asked to do this work at short notice / without reading papers in advance / without some kind of con…I think in practice given that the defendant has to be given time to either instruct or not this would all have to be dealt with and sorted quite early on and counsel appointed well in advance as someone will have to sort out getting them the papers (Assuming they get paid to read them!). I don’t even know quite how the court will select who to appoint. Perhaps there will be a list like CAFCASS have (had) for appointing local sols, and they go in a rota….Who knows? Criminal bods – can you answer all / any of these questions?

  3. With excellent timing, just as these provisions are being brought into the family courts, the MoJ is considering capping the remuneration paid to court-appointed advocates in criminal cases:

    https://consult.justice.gov.uk/digital-communications/lgfs-and-court-appointees/

  4. “the victim has been too frightened to pursue a prosecution”
    “the victim has been avoiding contact to keep themselves and child safe”
    “there is insufficient evidence to bring a charge”
    “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”
    Surely you mean “the alleged victim” and “the alleged perpetrator”? This person has had be be brought to the family court because they have decided to stop the child having a relationship with the other parent WITHOUT taking the matter to the competent authorities. This alleged victim has set themselves up as the judge and made a decision unilaterally to abuse the human rights of the child on their own say so, without any legal basis.
    If the allegations are not found and the parent accused falsely by the parent who has abused the child’s human rights is awarded contact with the child, what happens to the actual abuser, the one who ignore the rule of law and kidnapped the child? Absolutely nothing.

    The proper course of action is to take the matter to the police, if there is no criminal offence (there’s not enough evidence for instance) then take the matter to the Family Court. If the alleged victim doesn’t do this they become an actual abuser and they should not be rewarded for their actions. The welfare of the child must come before the welfare of either parent. Those who believe they are victims cannot set themselves up on place of the Family Court and make that decision for the child, they cannot assume the role of the competent authority.

    • Brian,
      I have been very careful to use terms like complainant and alleged victim where appropriate, but have chosen to use the term victim where I am describing and explaining the actions of a genuine victim of abuse, which I am sure you acknowledge is a thing which does exist. The legislation is aimed at protecting actual victims, and I was exploring how well it is likely to achieve that for those complainants who are in fact victims, as well as exploring what protection it offers to those accused.
      So no, in the context in which I have used the term victim I do not mean alleged victim. I was explaining (for example) why someone who IS a victim might not be protected in fact, because they may not have gone to the police or obtained an injunction.
      Contrary to your suggestion, the absence of a police complaint or injunction is not proof that a victim is a fake, many victims understandably let sleeping dogs lie if they have found a safe place away from their abuser or if they are being left alone. I would not criticise someone for not going to the police in these circumstances – the police are unlikely to prioritise cases where there is no immediate risk, and a non-molestation order may be said to be unecessary. These victims are often brought to court by their abusers and they have no protection in place. For some of them this legislation may not help much. Victims are not abusers. Those who make false allegations ARE carrying out a kind of abuse in wrongly preventing a child from seeing the “abusive” parent, but not all of those who make complaints are doing so falsely, and not all who have not started a legal process themselves are making it all up.

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