Guest post : Prisons and courts bill: cross-examination of complainant witnesses

This is a guest post written by David Burrows.

 

Quality of evidence of domestic violence complainants

 

Thanks to pressure from a variety of sources including Women’s Aid, The Guardian and Sir James Munby P the Lord Chancellor, Liz Truss, has incorporated into her recently published Prisons and Courts Bill – amongst a varied legal mixture of provisions, including those aimed at making prison nastier for those sent there and cheaper car insurance (with the capping of whip-lash injury claims) comes measures in family courts to bolster protection of complainants to domestic violence. The Ministry of Justice press release says that ‘quizzing’ (their word for cross-examination) of complainants by their alleged attackers is to stop:

 

The government is giving courts the power to put an end to domestic violence victims being quizzed by their attackers in the family courts, calling time on what the Justice Secretary has described as a ‘humiliating and appalling’ practice. This follows an urgent review she commissioned last month.

 

The bill has had its first reading, but no date has yet been fixed for further progress. Clause 47 inserts a number of amendments into an existing family law statute, Matrimonial and Family Proceedings Act 1984, as proposed sections 31Q-31X. The aim is to deal with cross-examination of a domestic violence complainant (A) by an unrepresented defendant (B). In law, if A makes allegations against him (mostly B is male, but not always), B has the right to cross-examine A about what she has told the court about him. In these circumstances there are many in A’s position who find that they are re-living the abusive situation; and this is precisely what the court hearing is designed to get her away from.

 

Youth Justice and Criminal Evidence Act 1999

 

Clause 47 has many similarities with the existing provisions of Youth Justice and Criminal Evidence Act 1999 (‘YJCEA 1999’); though any reference to YJCEA 1999 involves taking account of qualifications which apply to criminal proceedings but not to family cases:

 

  • A is a witness, and always has a prosecution legal representative dealing with the case; whereas in family proceedings she is both party – the person bringing the application – and a main (perhaps the only) witness;
  • The standard of proof against B is beyond reasonable doubt, whereas in family proceedings it is to the civil – more probable than not – standard; and
  • In a criminal case there is a variety of ‘special measures’ available to the court (YJCEA 1999 Part 2; Evidence in family proceedings Ch 8 Pt 2), which are not available in the same way to family courts and are not referred to in this bill.

 

Reference to ‘special measures’ recalls that the Ministry of Justice thinking on family law reform in this area is not joined up. ‘Special measures’ have been on the family law reform agenda for nearly three years: since Sir James Munby P set up a Vulnerable Witnesses and Children Working Group (‘VWCWG’) in late Spring 2014. That came up with draft rules which included ‘special measures’ as in criminal proceedings; but I assume they are snagged on a resources barbed wire fence.

 

So now, in separate statutory provisions in cl 47 of the new bill, cross examination etc – which will require its own procedure rules – is being dealt with in isolation from the Working Group recommendations (some of which will need redrafting if this bill is enacted). Separately, again, Ministry of Justice has published a modest draft practice direction which has been drafted without regard to what is in the bill.

 

From the point of view of the parties to proceedings the important provisions of this bill are:

 

  • The provisions for exclusion of cross-examination of A by B acting in person (MFPA 1984 ss 31R, 31S and 31T)
  • Alternatives to cross-examination by B in person which the court can order (s 31V(5): akin to YJCEA 1999 s 38(4): appointment of an advocate to cross-examine for the court)
  • Funding for s 31V cross-examination at s 31V(6).

 

The Prison and Courts Bill

 

The proposed reforms start with two provisions – s 31R which prevents a person in B’s position, who has been prosecuted for a serious offence against A – the specific offences are yet to be defined – may not cross-examine a victim of that offence (s 31R(1)), balanced against a prohibition on a victim cross-examining B (s 31R(2)). Similar prohibitions apply in relation to an injunction order which has been made by the court and on notice to B (s 31S(1) and (2)).

 

Thus ss 31R and 31S apply where the court is able to take action because another court has previously made findings against B – in criminal or injunction proceedings – so another judge need not re-invent that wheel. Another judge or a jury have made findings against B by which the second court is bound.

 

Section 31T is the central section of the reform proposals. It grapples with the question of what happens in relation to a witness whose evidence may be affected by their ‘significant distress’ at being cross-examined by B. A Ministry of Justice analysis of the subject said at para 6.1:

 

Judicial interviewees… felt that the ‘magic wand’ would be legislating for public funding for an advocate to act as a cross-examiner. This advocate would be able to be partisan, on the side of [B], and might only undertake the cross-examination. This would not advantage [B acting] in person by providing them with full case representation, and would also minimise the public funds required for this provision. It would enable [A] to be examined effectively by an advocate who could apply more scrutiny than an impartial judge whilst protecting [A] from being directly cross-examined by their alleged perpetrator.

 

Section 31T enables ‘a party to the proceedings’ to apply for a direction, or on the court suggesting that such a direction should be considered (s 31T(1)) so that B does not cross-examine A directly. The conditions for an application depend on the court considering either that a witness’s evidence will be ‘diminished’ (s 31T(3)) or that that witness will be significantly distressed (s 31T(4)). In both cases the court must decide whether, if the direction is given then the ‘quality [of a witness’s] evidence’ will be improved.

 

Avoidance of cross-examination of a complainant by defendant in person

 

The proposed s 31V deals with ‘alternatives to cross-examination in person’: that is where orders under ss 31R, 31S or 31T apply; and where the court considers there is no satisfactory alternative to cross-examination by B (s 31V(2)). In provisions which precisely replicate YJCEA 1999 s 38 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.

 

In YJCEA 1999 s 40, payment for such advocate is guaranteed by statute. Payment for C under s 31W is left to regulations (to be made under s 31X), which can – of course – be changed or revoked much more easily that a statute.

 

Rules governing appointment and other issues arising from the bill will be governed by Family Procedure Rules 2010 (and see provisions in Criminal Procedure Rules 2015 Part 23). It is to be hoped that these new rules will be synchronised with what is going on with rules in relation to (1) other vulnerable witnesses (eg witnesses suffering from an incapacity in (say) children proceedings: now the remit of the VWCWG already mentioned); and the separate issues of (2) children’s evidence and (3) of their views and other participation in children proceedings. There are cross-overs between each subject; but they are fundamentally separate evidential issues.

 

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