Cross Examination of Complainants – why on earth is it happening?

NB I’ve updated this post since publication – see foot.

There has been a lot of coverage of this issue in the media in the last couple of weeks, most recently here :

There was also some coverage last week which led to a significant response in the letters section of the Guardian here (which links to earlier articles in the sequence).

I don’t think anyone would argue that perpetrators of sexual assaults or serious domestic abuse ought to be able to re-traumatise their victims by direct cross examination of the in court (I suspect there may be less of a consensus if you asked whether ALL alleged perpetrators of ANY type or degree of domestic abuse should be so prohibited). Anyone who has represented parties in these cases knows how taxing the court process is even when conducted well and when everything goes smoothly from a procedural point of view. But current criticism of judges for allowing cross examination by alleged or proven perpetrators on occasion, is somewhat missing the point. In my view it should never happen – we can and should find alternative ways of doing things that are fair to both parties. I don’t in fact think it happens very often in cases where the violence is serious*, and even less often in cases of sexual assault or r*pe, but we all have to acknowledge that the jury is still out on quite how often it happens because all we have at present is anecdotal evidence that it is happening to some extent (and that anecdotal evidence makes pretty depressing reading).

But I think it’s important that people understand why this issue is an issue at all. From the outside it probably seems a total no brainer, and its easy to criticise crusty old judges (always male in the mind’s eye of the media / campaigners of course) who just don’t “get it”. Based on my own direct experience, I think most emphatically DO get it, but I also have direct experience that a few emphatically do not. That is really worrying and it is no comfort for the individuals interviewed by the Guardian or those like them to be told that most judges are okay.

But. We do need to make attempts to distinguish between a system which is cavalier about this issue, and a system which is cornered into doing things in a profoundly unsatisfactory way. It is inevitably the case that some individual judges, magistrates or legal advisers need a crash course in domestic abuse and coercive control, but there are also many other factors at work here – and I think it is probably in addressing those other factors that the greatest potential to achieve real justice for complainants lies.

You are probably wondering why this isn’t a problem in the criminal courts. The answer is simple : Parliament recognised the issue and stepped in with Section 34 of the Youth Justice and Criminal Evidence Act 1999 :

No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either – 

(a) in connection with that offence, or 

(b) in connection with any other offence (of whatever nature) with which that person is charged in the proceedings…

the court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a legal representative appointed to represent the interests of the accused…

If the court decides that it is necessary in the interests of justice for the witness to be so cross-examined, the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused.

That section banned the direct cross examination of a complainant in cases of sexual offences. And, to ensure that a defendant still had an opportunity to challenge the evidence, Parliament also made legal aid available as of right for the purposes of cross examining the complainant. That isn’t a perfect solution because the legal aid doesn’t extend to the running of the case or even advocacy for the whole trial, but it’s better than nothing. And of course in most criminal cases legal aid is still available for the rest of the trial – so this provision really only kicks in in the case of a defendant who eschews legal representation and positively wants to represent himself – it’s designed to restrain that sort of cross examination that a perpetrator might get a kick out of or use to intimidate a victim.

In criminal domestic abuse cases that don’t involve a sexual assault charge there is a slightly different scheme set out in s 36 YJ&CEA 1999 :

(1)     …(a)    [where] the prosecutor makes an application for the court to give a direction under this section in relation to the witness, or
(b)     the court of its own motion raises the issue whether such a direction should be given.
(2)     If it appears to the court—
(a)     that the quality of evidence given by the witness on cross-examination—
(i)     is likely to be diminished if the cross-examination (or further cross-examination) is conducted by the accused in person, and(ii)     would be likely to be improved if a direction were given under this section, and
(b)     that it would not be contrary to the interests of justice to give such a direction,
the court may give a direction prohibiting the accused from cross-examining (or further cross-examining) the witness in person…

The distinction here is that there is not an automatic prohibition, but the prosecution may apply for a direction if direct cross examination is likely to prejudice the quality of evidence – or indeed the judge may make such a direction if he thinks it appropriate even if not applied for. In such a case the court is given a discretion.

So, what is different in the Family Court?

As in the criminal court, the Family Court has to ensure fairness for both parties (Article 6 European Convention on Human Rights, Overriding Objective Family Procedure Rules), but here also in the context of prioritising the welfare of any child involved (section 1 Children Act 1989). The child too has an Article 6 right to a fair trial in relation to allegations of domestic abuse that might lead to a restriction on their Article 8 ECHR right to family life with one or other parent. And that means that the court has a duty to make sure that the person accused of abuse (remember, they might be innocent) is given a proper opportunity to challenge the allegations and evidence. In a family case, if the accused is lucky they will have a lawyer to do that for them, but if they don’t (and many don’t) they still have an entitlement to challenge that evidence if they wish. The court can to some extent control how that happens but it isn’t presently empowered to bar a person facing allegations from asking questions.

The relevant law here is section 31G(6) of the Matrimonial and Family Proceedings Act 1984 (inserted in 2014 when the Family Court was created but drawn from earlier legislation), which says :

Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to—

(a)     ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and

(b)     put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.

At first blush this seems to be a rough parallel with s34 YJ&CEA 99 but it’s really quite different. It does empower the court to take over the questioning or to get someone else to do it (for example the solicitor for the child), but each of these “solutions” has it’s own difficulty. But read more closely s31G(6) only gives the court this power where a litigant in person is UNABLE to cross examine effectively – which of course does not always apply, and in particular doesn’t empower the court to stop the cross examination of a litigant in person who thinks he is doing fine thank you very much, but who may be traumatising a vulnerable witness. And unlike the situation in the criminal courts the Judge is not able to grant legal aid to facilitate the conduct of cross examination by a professional. So, whilst the judge has a general power to limit cross examination (Family Procedure Rules 22.1), for example by imposing time limits or restricting questions which are irrelevant or inappropriate, this does not equate to a power to prohibit it entirely.

In cases where a judge has decided it would be inappropriate for questioning of a vulnerable witness to be carried out directly or by the judge (who has to maintain impartiality), and has attempted to order the court service to fund an advocate that has been roundly overturned on appeal (Re K and H (Children ) [2015] EWCA Civ 543), so it is now clear this is not currently an option for those trying cases in the Family Court. In K and H the Court of Appeal effectively squashed judicial attempts to find a way out of this mess by saying that Parliament knew exactly what it was doing when it decided to go ahead with LASPO and the court had no power to order the expenditure of public funds in this way. But the Court of Appeal were also surprisingly dismissive of arguments made in Q v Q : Re B : Re C (Private Law : Public Funding) [2015] 1 FLR 324 and other cases that a fair trial would be compromised without legal representation of an accused – they thought that questioning by the judge or by a justice’s clerk or through the appointment of a guardian for the children would be an adequate solution in many cases. Many judges and advocates raised an eyebrow at that, but there we are, that was the clear view of the Court of Appeal, although they did acknowledge that questioning of a witness by a judge could involve treading a difficult tight rope, saying however that the judge must just do his or her best. That of course shouldn’t translate into the cross examination of complainants by those they say have abused them where a court has decided that would be inappropriate, but whatever the Court of Appeal say (the Court of Appeal have the luxury of not having to deal with the practical reality of a trial) the options available to a judge are all rather unsatisfactory (See Q v Q and below for a summary of why).

The President of the Family Division, Lord Justice Munby

The President of the Family Division, Lord Justice Munby

The report of the Vulnerable Witnesses and Children Working Group (Feb 2015) raised this and other pressing issues, but did not provide any answers. Since K and H in May of that year little has happened and no particular solution has emerged :

  • Guardians are rarely appointed so they can’t often help with the asking of questions through their lawyer (and they are in the same bind as a judge as they are supposed to be neutral too – I have been in cases where counsel has refused to do it and I don’t think a judge can force them to conduct a case in a particular way, that is a matter for their client and their professional ethics).
  • Magistrates are ill equipped to be asking questions directly – unlike a judge they are neither lawyers nor have a background as advocates, and the process is simply unworkable when magistrates operate by committee.
  • I have been involved in a case where a Legal Adviser asked questions on behalf of a father. It was profoundly unsatisfactory in that it was neither effective cross examination nor any less awful for the witness (since the questions were audibly asked by the father in court and re-spoken by the legal adviser, subject only to modification where they were unclear or inappropriate. It wasn’t a particularly forensically taxing or grave case of violence but I can only imagine how much more awful it would have been if it were)
  • I’ve seen judges in a range of cases (civil and family) give general assistance in the framing of questions to a litigant in person (often to both parties in a small claim or family case where there are no lawyers), but that is to help them put their case / elicit evidence helpful to the court, and NOT taking over the job and carrying it out for them for the protection of the witness. That’s a completely different task – and even the general assistance model can be quite difficult to pull off without giving an impression of bias to one side or another.
  • The Bar Pro Bono Unit are overwhelmed. I’ve been involved in many cases where a case is delayed to see if a pro bono lawyer can be found. This helps in some cases but isn’t really a viable solution, and it is inevitably the case that advocates are more likely to be willing to take on a case that has some hope of career advancement (some novel legal issue) rather than one which is just a lot of work but not legally interesting. So in many of these cases this isn’t a solution at all (and the BPBU don’t take cases at all of more than 3 days so complex fact finding hearings are ruled out).

The issue of perpetrator cross examination was always a potential problem in family cases (and probably always happened in a small number of such cases but with less fanfare) because there were always some alleged perpetrators who didn’t qualify for legal aid. But it became much more acute when legal aid was slashed by The Legal Aid Sentencing and Punishment of Offenders Act (LASPO) in 2013. A combination of the intensification and greater frequency of the issue arising where there are no lawyers, and an increasing understanding of and concern about the retraumatising effect that the court process can have has probably led to this issue coming to the fore now.

Whilst the President says he welcomes this spotlight being shone on the issue and that he will prioritise it in 2017, it is important to recognise that there are limits to what the judges, even the President himself, can do to fix this problem without the assistance of Parliament. As the article notes,

Munby “would welcome a bar” on the practice but [said] that it was down to primary legislation in parliament to do this.

Munby and others have been saying this since 2014 (and indeed said it before LASPO was implemented. Parliament and parliamentarians ignored us).

Whilst there are a number of MPs taking up the issue of the treatment of domestic abuse victims in Family Courts, none has yet put before Parliament any bill that would assist the judges by outlawing the cross examination they complain of, and by giving them a feasible alternative.

The article also says that :

The spokesman said Munby welcomed the fact that Women’s Aid had raised the issues and that he was considering a review of the rules supposed to protect victims of domestic violence within the family courts and stop direct cross examination.

Although The President has some influence over the Family Procedure Rules Committee he cannot unilaterally or immediately change those rules (the reforms proposed by the Working Group in 2015 have been stuck in a tangle of red tape since 2015, it is rumoured because there are difficulties with securing ministerial approval with regard to the resource implications of those rules. The FPR Committee has no power to amend primary legislation, and it is clear from Re K and H that it is primary legislation that would be needed to secure the funding that would be required to enable a judge to appoint an advocate to cross examine on behalf of a litigant in person. There is no doubt however that the President is, like many of us, genuinely frustrated at the mess we are in, and that this press coverage may happily provide useful political leverage for those who hope to persuade Parliament to find a real fix. It is just a shame that the campaigners are aiming perhaps at the wrong target. We all agree on the problem but the solution lies with Parliament.

 

*I have known it happen without objection in cases where violence is not recent and where a survivor is ready to look her abuser in the eye, and feels that is part of her journey. Not all survivors want to be wrapped in cotton wool, some ask for special measures to be removed as their strength grows.

UPDATE :

I have just listened to the podcast of this morning’s Womans Hour with Elspeth Thompson (solicitor) and Polly Neate, featuring more details of the press release apparently made available to the Guardian as the basis for the article I’ve linked to above. You can listen here. I don’t think I can pass without comment the remarks made by Polly Neate, CEO of Women’s Aid makes in the course of that segment.

As best as I can get it down Polly said this in response to the question why is cross examination of victims still happening in the family court :

Because professionals in the Family Court – in the main judges – actually don’t understand whats going on in domestic abuse. So, they don’t understand that domestic abuse is very commonly – in fact routinely – continues after separation. So, if the last violent incident was a few months ago and they’ve separated they just don’t it see as abusive, they just don’t understand the impact on children and just don’t understand coercive control – and this behaviour we’re talking about is coercive control. It’s really a lack of understanding on the part of many judges and that’s why they allow it….it’s appalling that the level of understanding is so weak. That being said there are of course some brilliiant judges and examples where this doesn’t happen…all that goes to show is that its perfectly straightforward for a judge not to allow this if he or she doesn’t want to. So it has to stop…solicitors and judges say its incredibly uncommon but we found 1 in 4 survivors of domestic violence with experience of family court had been directly questioned. That’s not “hardly ever happens”.

I have asked Women’s Aid about the detail of their evidence base for this sort of assertion – because it is a really serious allegation and has a very different solution to the problem as I see it (as set out above), and therefore affects where we ought to be directing our energies (it’s the difference between culture and resources). Women’s Aid recently agreed to answer my questions about their evidence base. See here on The Transparency Project blog, for the background to that. I will update that and this post if and when answers are forthcoming [Update : Answers from Women’s Aid here]. I think it is critically important that they do so, particularly now it appears (as of today’s unpublished press release) that there has already been a review of PD12J conducted with the help of Women’s Aid that is coming to its conclusion. I’m not saying that Women’s Aid are wrong necessarily, my own experience may not in fact be representative – but I am asking for us to move forward on the basis of proper, balanced evidence rather than on the basis of who shouts loudest.

30 thoughts on “Cross Examination of Complainants – why on earth is it happening?

  1. The point is well made here and any politician worth their salt ought to be rallying support to bring at the very least a private members bill to get the issues in front of parliament.

    The parliamentary petition system could also be a way forward. The issue is real. The cause however, is penny pinching on legal aid (I can’t imagine the cost of importing a similar option from criminal cases to family case re cross-examination, is too onerous) and the harms are traumatic, measurable and easily avoided. Come on parliamentarians, show your metal.

  2. I’ve had a few ss36-38 appointments in my time.

    It works.

    Firstly, my duty is to the court. While I study the papers and take instructions to assist in my cross-x prep, the person on whose behalf I am asking the questions is not my client. when my cross-x is complete, my duty to the court is discharged and I am released.

    The overwhelming majority of these appointments, in my experience, relate to domestic violence cases. I cannot imagine the extra resolve it would take for a complainant to be cross-x’d by their (alleged) abuser.

    If nothing else, I am sure we are far more efficient and therefore save court time by having a case theory and getting to the point.

    Despite my court appointment, I cross-x precisely the same way as if I was being paid privately or by way of legal aid.

    The court benefits from decorum and efficient use of time.

    Alleged perpetrators benefit from effective advocacy which really tests the evidence.

    Complainants benefit as they are not subjected to an ex’s power trip.

    I benefit as I am paid a reasonable fee for my advocacy service.

    I know the last one really sticks in the government’s craw, but if they stopped to take a holistic approach, they would see it’s much more efficient to pay me to parachute in.

  3. ps, I have noticed quite a number of cases which one might normally expect to be resolved in the Family court dealt with as Criminal cases in the Magistrates Court.

    Any Detective will tell you it’s largely due to Family proceedings costing money.

  4. Issues arising out of power dramas over kids are a big one. The Prosecution will routinely ask for restraining orders, but the Magistrates can sometimes find it difficult to order one where access to children is involved – and Mags tend to think it would be better (after the victim has come to court and the case has been proved to the Criminal standard) if she now runs off to the Family court as they will have a better grip on access issues.

    When prosecuting and seeking a R/O, I had one Mag chip up and say that the convicted Defendant has an ECHR right to a home. While I did observe, “not with her”, many would rather leave it to the Family court to resolve such issues.
    ________________________
    IMHO, not much has changed since Helena Kennedy wrote Eve Was Framed. I’ve been astounded at some of the cases re male on female violence where Magistrates have wrung their hands saying they can’t be sure because “her bruise isn’t consistent with a punch”, as if they are CSI London, or the bloody nose was “an accident”. I know I get accidental bloody noses All. The. Time.

  5. I am regularly appointed to cross examine complainants in Mags trials. The procedure is inherently unfair to the defendant. The defendant is not my client. Therefore, who is to put his case to the complainant? He is prevented from doing so personally and even though I am conscientious and do try to get detail from a defendant, to effectively cross examine, there is quite a lot more work that needs to be done to prepare for the hearing.

    The difficulty that I am starting to encounter is that the NTT tax at least some of the work off the bill and I am not paid for it. In one case they taxed off considering the unused material because that did not need to be done to cross examine!

    Providing funds for an advocate to cross examine is simply not enough to balance the scales and ensure that the rights of BOTH parties are respected. No one knows until the conclusion of the case whether the allegations being made are true or not and focusing on the rights of the alleged injured party whilst ignoring the rights of the accused does no one any favours.

  6. What the f* ? Let’s just scrap justice altogether. Oh, you already have done. Gee, thanks.

    It’s time the real victims of this misjustice killed the alleged victims.

  7. Um, SA, your job under s38 is indeed to put the Defendant’s case to the Complainant in cross-x. That’s why you take instructions!

    S/he makes their own closing. A closing speech is not the same as “putting a case”!

  8. A slight gripe on the P’s comments on primary legislation is perhaps permitted? Family law was amended by primary legislation both in 2013 and 2014 without a whisper then on the subject of ‘children evidence’ or ‘vulnerable witnesses’. This amendment was by introduction of the new family court by amendment to MFPA 1984 in Crime and Courts Act 2013 Sch 10 (including MFPA 1984 s 31G(6): see above)) and the predominantly procedural reforms to Children Act 1989 and procedure under it were incorporated by Children and Families Act 2014 Part 2 (under the heading ‘Family Justice’). The President was extensively involved with both of these law developments; yet there was no obvious clamour for children and vulnerable witnesses then.

    The Acts of 2013 and 2014 were both excellent opportunities to reform this area of law in line with Youth Justice and Criminal Evidence Act 1999 Part 2. After all the ground work had been done with the 1999 Act, and it has developed its own jurisprudence which is relevant to family proceedings (see eg Lady Hale in R (D (a minor)) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393 and R v Lubemba & Ors [2014] EWCA (Crim) 2064; as explained in Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) Chs 8 and 19 (http://www.jordanpublishing.co.uk/practice-areas/family/publications/evidence-in-family-proceedings)).

  9. Level playing field. If the complainant cannot be cross-examined neither can the alleged perpetrator.

    And a Private Member’s Bill cannot authorise public spending.

  10. Sorry, but another thing: At the end of 2012 (over four years ago) Lady Hale was again referring to the subject of vulnerable witnesses – more specifically in family proceedings – in Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948. She said of the evidence of a vulnerable young adult (known as ‘X’):
    [36] It does not follow, however, that X will have to give evidence in person in these proceedings…. Family proceedings have long been more flexible than other proceedings in this respect. The court has power to receive and act upon hearsay evidence. It is commonplace for children to give their accounts in videotaped conversations with specially trained police officers or social workers…. Oral questioning could be arranged in ways which did not involve face to face confrontation. It is not a requirement that the father be able to see her face. It is, to say the least, unlikely that the court would ever allow direct questioning by the father, should he still (other than in this court) be acting in person. The court’s only concern in family proceedings is to get at the truth. The object of the procedure is to enable witnesses to give their evidence in the way which best enables the court to assess its reliability. It is certainly not to compound any abuse which may have been suffered…

  11. To be honest, the more I think about it the more annoyed I get. If she, usually she, has legal aid, and he, usually he, cannot even apply for it, that is already a massively unlevel playing field. He has one hand tied behind his back; and people are not ashamed to suggest that the other should join it.

    Women’s Aid has an agenda; they want the man driven to the margins of the court process. They want him not allowed in the room if his presence is unwelcome to the woman; if he is there they want him forced (by whom and where I do not know) to remain behind after she has gone. They would probably prefer it if he was not allowed to speak at all.

    Re A is an appalling case; I remember posting on your blog, I think, that a man against whom allegations of sexual abuse are made – as was the case there – has a right to see all the evidence which will be before the judge and to cross-examine the witnesses making the allegation – in person if he is refused legal aid and cannot afford representation. No ifs, no buts, no exceptions. And I stand by that.

  12. Everyone must sympathise with victims of sexual abuse but at the same time if they are over protected in court some of those accused who are innocent could as a consequence be found guilty. There are far far fewer male teachers around in schools than when I was young and I can’t help feeling that could be because they are so vulnerable to accusations from teenage pupils made out of anger through rejection of their advances or simply bad marks in an exam. I have no axe to grind as I have never spoken with or met any teachers so accused but I have read about them and felt some sympathy.Sometimes those accused can actually be victims and we should never forget that.

    • I’m not sure whether there are fewer male teachers around – it may depend on the type of school, but many of my teacher friends are male and a good chunk of the teachers in my childrens’ primary are male. But that is not a very scientific sample I agree with your general point about needing to balance the interests of both accused and complainant.

  13. I think this extract from the Telegraph last february speaks for itself !

    When the Department of Education released the school workforce statistics last year, it was revealed that the number of male teachers working in Britain had fallen for the fifth time in as many years. Compared to 2010, when a little over 1 in 4 teachers were men, last year the ratio had dropped to just 1 in 5.

    Just maybe some are put off because a teenage girl only has to make a malicious accusation and the teacher is immediately suspended BEFORE any investigation is carried out.Maybe that is the right thing to do but unfounded accusations would not occur so readily if the punishment for making them was much more severe than at present.

    • Fair enough. Although I am sure the causes are far more complex than just fear of false allegations. One can make a false allegation against all sorts of people, not just teachers. And indeed female teachers are vulnerable to such allegations too. Not sure how much teenagers making false allegations are likely to be swayed by harsher sentencing policy?

  14. Is a potential solution (although not one preferable to the reversal of the legal aid provisions) to modify the guidance given in R v Brown (Milton) [1998] 2 Cr. App. R. 364 in the criminal courts by Bingham LJ, where the judge is encouraged to explore prior to the hearing of evidence the line of questioning to be adopted by the LiP?
    “…it will often be desirable, before any question is asked … for the trial judge to discuss the course of proceedings … The judge can then … identify the specific points in … evidence … and any points [the litigant] wishes to put to [the respondent]… it should be made clear in advance that the [litigant] will be required, having put a point, to move on, and if he fails to do so the judge should intervene and secure compliance. If the [litigant] proves unable or unwilling to comply with the judge’s instructions the judge should, if necessary in order to save the [respondent] from avoidable distress, stop further questioning by the [litigant] or take over the questioning of the complainant himself. If the [litigant] seeks by his dress, bearing, manner or questions to dominate, intimidate or humiliate the [respondent], or if it is reasonably apprehended that he will seek to do so, the judge should not hesitate to order the erection of a screen, in addition to controlling questioning in the way we have indicated.”
    A bit chopped, I know, but the general point stands. If compliance with this type of framework is not achievable by the litigant, surely this is grounds for a ruling under 31G(6) of the Matrimonial and Family Proceedings Act 1984 – “inability to cross-examine a witness effectively.”

    • I think that’s probably what the Court of Appeal were saying in Re K and H. But I’m not sure it’s that simple. After all, that was tried in criminal courts and was deemed so worrying that the YJ&CEA 1999 was brought in shortly thereafter. And THAT case was the one that prompted the change! https://twitter.com/ffgqc/status/814875979525066752

      • The YJCEA 1999 limitations are necessarily strict as the defendant is on trial for his liberty, and are for a minority of cases, mainly sex crimes, and so have a clearly defined scope. Either the defendant is charged with such a crime, or he is not, and so it is easy to ascertain who is prevented. The issues in the Family Court are surely volume and clarity: rendering all LiP’s ineligible to cross-examine would require s.38 style advocacy in every case, or in the alternative a pre-hearing review looking at the merits of such an appointment every time an application was made, as the boundaries would be more difficult to draw. I appreciate that active judicial case management of the style outlined by Lord Bingham would lead to inconsistency, but I am concerned that a YJCEA 1999-style legislative solution would only catch a minority of egregious cases, or leave judicial discretion equally wide in the legislative scheme. It would, however, give judges a permission to intervene that they evidently do not feel they possess at the moment.

        • Chris, Yes I agree that it is more complex in family cases. And because both parties are parties (as opposed to defendant and complainant) there is all sorts of interaction at court and in the court room that would be better mediated through / managed by a lawyer. A complainant in a criminal trial is protected through management of xx, but a PARTY in proceedings has a much broader need for protection.

  15. One of the unintended consequences of the dropping legal aid in family court matters bar domestic abuse is the incentive it has led to make false allegations of domestic abuse against men (tends to be men) to gain legal aid.

    The concern is that the burden of proof to get legal aid should include a conviction of some form which stems from a police investigation – this would prevent false allegations as there would be a risk of perverting the course of justice. This is not the case at the moment and it has driven up false allegations.

    I have to agree with Andrew and hope that everyone in this discussion is fully aware that Women’s Aid (who describe themselves as a feminist organisation) have both a practical concern (good) but have a political motivation to this change. Their basic world view is that all women are good and all men are bad (no men are allowed to even work for them) and that if a woman says a man committed domestic abuse then that has to be believed without evidence.

    This is why there is conflation in the media reporting between proven perpetrators and those who have been accused. The media seem unable to distinguish between them both and the way Women’s Aid are presenting this is to deliberately confuse.

    Wise up please.

    • I don’t really see how one could make a conviction for d.v. a prerequisite of legal aid – people need immediate protection from the family court and cannot wait for the interminable criminal process to take its course. And often the police decide not to prosecute.

  16. One of the cases quoted by the Guardian revealed that a judge had ordered the female complainant and male accused to sit next to each other to watch a piece of video evidence, even though the male accused was subject to a restraining order (?) forbidding him from coming within a certain distance of the female complainant. I should be interested to know where it says that a judge can order and/or cause the breaching of a restraining order. I did write to the journalist in question asking why none of the professional bodies or the JCIO had been asked to respond to the allegations in the article but did not receive a reply.

    • Gladiatrix, Yes I thought that was a bizarre and really worrying example – assuming the facts to be accurate I struggle to understand how that could be appropriate. Of course if the respondent had been represented his lawyer would never have let it happen (likewise if the applicant were represented).

  17. […] Reed’s blog at Pink Tape ‘Cross-Examination of Complainants: Why on Earth is it happening’ with update on ‘Moving forward on the basis of proper, balanced evidence rather than on the […]

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