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.