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.

 

Core Doody 5 – the sequel

The Bar Standards Board have (finally) issued some new guidance on Core Duty 5 and its application to social media. That’s the bit of the Code of Conduct that tells us barristers not to behave like pillocks, in case you are unfamiliar with it.

For those of you wondering about the title, it’s a dull topic, so – say it in your best fake American accent and watch this clip from Wreck it Ralph. In fact, if at any stage you find yourself lapsing into a coma during the reading of this post, play it again…

It wasn’t very long ago that I observed that there was a notable absence of specific guidance about conduct on social media. In fact, looking back, my post on the topic : Debretts* guide to social media for lawyers was published as recently as 5 February, and the new guidance has a “valid from” date of 17 February, so it was presumably published shortly after my original post. There doesn’t seem to have been any announcement of its publication, although it is just possible* that there has been some BSB update email that I have accidentally left in my spam folder and not read**.

You can read the guidance here : BSB guidance for barristers using social media.

What does it say?

The headline is : Core Duty 5 (duty not to behave in a way likely to diminish public trust and confidence in the profession) applies AT ALL TIMES, including on social media – in both your personal and private capacities “since the inherently public nature of the internet means that anything you publish online may be read by anyone and could be linked back to your status as a barrister“. This much should be clear from a sensible reading of the Code of Conduct itself but it bears re-stating.

What else :

  • Comments designed to demean or insult are likely to diminish public trust and confidence in the profession
  • It is also advisable to avoid getting drawn into heated debates or arguments. Such behaviour could compromise the requirements for barristers to act with honesty and integrity (CD3) and not to unlawfully discriminate against any person (CD8)
  • You should always take care to consider the content and tone of what you are posting or sharing. Comments that you reasonably consider to be in good taste may be considered distasteful or offensive by others.

There is also some fairly obvious guidance about client confidentiality and geotagging, and a reminder that :

When you are using social media, you should bear this guidance in mind at all times. This guidance will be considered by the BSB in any action it takes over concerns about social media use. If you are the subject of a complaint concerning your use of social media, we will investigate the matter carefully and in line with the process explained on our website.

And that’s it folks.

I have to say that I think the guidance is somewhat over-anxious. I am very alive to the need for members of the bar to conduct themselves appropriately online (as well as offline), but I wonder if it is striking quite the right balance to suggest that we should avoid getting drawn into heated debates or arguments. One might rhetorically ask what is the point of twitter without heated debates and arguments? The point is not the fact of the argument, it is the manner in which it is conducted. It cannot be right that barristers should be prohibited from expressing strongly held opinions in strongly worded terms. But there is of course a limit to what is acceptable, either for a barrister or for joe public. It is quite possible to be appropriately involved in a heated argument on twitter without offending CD3 (honesty and integrity) and without discriminating (CD8). I would prefer this guidance to say simply that in any communication online a barrister should act with honesty and integrity and should not act in a way which is discriminatory. Those quite unacceptable behaviours have nothing to do with the vast majority of heated debates. Tweeting things which are knowingly untrue, or which are misleading might well amount to a breach of CD3. Tweeting discriminatory remarks would breach CD8. Either could take place within the context of an argument or debate or gratuitiously and without prompting. The BSB should not be trying to shut down debate, it should be regulating offending behaviour. I acknowledge however that it is in the course of heated debate and argument, particularly fast paced twitter frenzies, that errors of judgment are most likely to be made. If that was what the BSB were driving at they could, respectfully, have found better wording.

I struggle somewhat with the insinuation in the last bullet that material that is considered offensive by some might offend against CD5 even where the barrister “reasonably” considers it appropriate. I don’t think the BSB should be in the business of policing good taste. One can say the most anodyne things and cause offence in the twitterverse. This is not misconduct. I don’t subscribe to the “call everyone a snowflake” school of thought which says we should be gratuitously offensive because we can, but the focus needs to be on “the public” (i.e. the notional public) on whatever is the modern day equivalent of the Clapham Omnibus, not on the oversensitive individual who is offended by everything. Some of the very best legal bloggers say things that are controversial or that are offensive to some. They are fiercely independent and articulate their positions with care and with skill, but with great force. That some will disagree or be offended, or that their posts will spark the most vehement of debates is no marker of misconduct. It is something to be proud of.

And yes, I appreciate that a blog post that has a toilet humour title is winning no prizes in the serious public debate category…

 

* highly likely

** deleted

 

Consultation by the FMC – Should mediators draft consent orders?

This is a guest post by Tracy Allison, an Accredited Family Mediator (FMA), from West Yorkshire.

 

 

The Family Mediation Council has consulted all bodies conducting mediation on whether, contrary to the present rules governing mediators, we should be allowed to draft consent orders.

Mediators are governed by those rules whatever our professional background. I will say my background is a lawyer but I now only practice as a mediator through my own independent mediation service.

For those who are lawyers there is now SRA guidance that says that one mediator who has mediated between a couple can draft a consent order. The Law Society’s view is that mediators who possess the expertise to draft a legally compliant consent order should do so subject to effective rules on good practice being put in place;

  • The parties consent and understand what the mediator can and cannot do;
  • The status of any document produced is clear;
  • The importance of taking legal advice is emphasised as are the risks of not doing so;
  • The court is made aware that the consent order has been drafted without the parties receiving legal advice (if that is the case);
  • No Mediator should be obliged  to draft a consent order.

When you look at the responses by the governing bodies to the consultation you can see the Law Society and Resolution are in support of mediators drafting consent orders. The Family Mediation Association and National Family Mediation are opposed. I am unsure as to the College of mediators view.

 

I understand the drivers for change

– Gaps in service left by LASPO and the redefined Family Justice System.

– Unregulated and non-professional McKenzie friends.

– Concerns of overworked District Judges and presently the additional work involved in perfecting applications on behalf of LiPs.

– The academic arguments of Maclean and Eekelaar that mediations do not necessarily involve a ‘legal dispute’ and that mediators do and should, give advice.

– Perception that mediators do not provide a complete, professional service (driven by the Call the Mediator programmes and elsewhere) and most importantly

– The needs of clients for a single service which provides what they need at a reasonable cost.

 

Do these justify dramatically changing what we do?

 

Another experienced mediator said : “Are the questions we need to ask ourselves ‘What do our clients need from us and how can we best provide it?’ and not, “What are we able to do for our clients?”’

 

Resolution’s response to the consultation starts with ‘It remains our position that effective symbiotic partnerships between mediators and solicitors are necessary and produce lasting, effective, implemented, mediated settlements.’ 

 

So do we already have the best model with mediators offering the negotiation service and solicitors implementing the agreement reached and providing specific legal advice? I believe solicitors feel at present they are happy to refer work to mediators because they will receive the drafting and advice work back.  Can we work in symbiotic partnership if mediators can do both or a solicitor and mediation practice can offer an ‘all in’ service and no conflict arises to them undertaking mediation and giving legal advice?

 

I’m sure if we asked clients they would want a single service at a reasonable cost but what are they actually going to get if it is one service?

  • They will be asked to sign a retainer / disclaimer stating what the mediator can do and cannot do. Are their legal rights ‘fully’ protected?
  • They will still be encouraged to take legal advice (so additional costs possibly) and
  • will have a consent order (legally privileged or open- not clear on this) which will include a statement to illustrate to the court that no legal advice has been given (if not given). The result possibly is the court will list an approval hearing where both have to attend court so the judge can be satisfied it is fair, both understand the legal implications and discuss what legal advice they have been given. What if the judge does not approve the order?

 

For me – we have a good model which protects clients legal rights in that we encourage them to obtain specific legal advice. Solicitors and Mediators can work in partnership and most importantly clients are in the best position to obtain a legally binding order. I know some of you will say but what about those who do not instruct a solicitor? In answer I would say we need to look at why that is? What can solicitors and mediators do? In changing the rules we are not creating something better.

 

What I struggle with most is our core principles that clients are in control / they take responsibility for the outcome and whether this can be preserved if the mediator ultimately is responsible for the outcome if they draft the consent order.

 

I will take a few minutes to explain my view about draft orders being prepared in Children Act cases. Some may say I contradict myself about core principles here. I do agree as mediators we help parents create good parenting plans and sometimes some parents chose to have those arrangements implemented into a court order. In my experience this is rare because many wish to resolve outside of court and understand a court order is a piece of paper with a court stamp on it that the police do not police.   In this case I explain to both parents they can choose to waive legal privilege and show the judge the memorandum of understanding setting out the arrangements. I know some mediators are prepared to cut and paste these arrangements into a draft order so parents can use and attach to a C100 form. I suppose the question I ask – is this against core principles if the mediators create an open document to be used by the parents? Although I do not draft an order I choose to set out their plans in detail in the memorandum. I have to say I do not feel as opposed to this as drafting financial consent orders.

 

What is not being discussed in mediators drafting is the ramifications in possible litigation, increase in professional indemnity insurance premiums and frictions / competitive market it will create between solicitors and mediators.

 

All bodies talk about mediators not being compelled to do this, but what is the Legal Aid Agency going to want to do as a cost cutting exercise (help with mediation funding springs to mind) if rules are changed? Also in a competitive market can services afford not to offer such a service?

 

Results of the consultation will make interesting reading…..