Family Law

Reforms  for evidence of domestic violence complainants

Prisons and Courts Bill was published yesterday and represents a pot-pouri of provisions related to making prison nastier for those sent there (convicted of ‘heinous crimes’), cheaper car insurance (with the capping of whip-lash injury claims) and – and as this note explains – measures in family courts to bolster protection of complainants to domestic violence. The plan, according to the Ministry of Justice press release, is that:

'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 (see cl 47) proposes a variety of amendments (ss 31Q-31X) to Matrimonial and Family Proceedings Act 1984 to deal with cross-examination of complainants by defendants in person. In what follows the complainant will be A and the alleged abuser B. The issue arises where an unrepresented B in person is entitled to cross-examine A – or ‘quizz’ in the Justice Secretary’s terminology; and in proceedings where she is giving evidence against him (B will generally, though not invariably, be male). The bill is accompanied by Alleged perpetrators of  abuse as litigants in person in private family law: The cross-examination of vulnerable and intimidated witnesses (MOJ, 2017).

Ultimately it will be appropriate to compare the provisions in the bill with the relatively longstanding provisions of Youth Justice and Criminal Evidence Act 1999 (‘YJCEA 1999’). This is subject to qualifications which apply to criminal proceedings:

• 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 (see Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) Ch 7 Pt 3) – standard.
• In 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.

The bill has been published alongside a draft practice direction which accompanies a draft rule being considered by Family Procedure Rules Committee. The draft rule was produced nearly 2 years ago by Vulnerable Witnesses and Children Working Group and covers some of the ground covered by the bill. Both draft rule and practice direction deal with ‘Vulnerable persons: participation in proceedings and giving evidence’. This confuses very different subjects, namely children and vulnerable individuals. At present all are bundled into one draft rule. It is to be hoped that the parts of the Ministry of Justice which are dealing with the bill will speak with those in Ministry of Justice who are dealing with ‘vulnerable persons’ in family proceedings.

From the point of view of the parties to proceedings, and especially to the complainant facing cross-examination by her alleged abuser in person the important provisions of this bill are:

• The provisions for exclusion of cross-examination by B in person (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  Prisons and Courts Bill

Proposed sections are referred to below and refer only to family proceedings (ie proceedings covered by FPR 2010). Section 31R (after a short definition section in s 31Q) prevents a person who has been prosecuted for an offence of a type to be defined by regulations 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)).

Sections 31R and 31S apply where the court acts because an order or conviction has already been made separately by a court. 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. The Ministry of Justice analysis (above) said of this subject (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 the alleged perpetrator of abuse, and might only undertake the cross-examination. This would not advantage the litigant in person by providing them with full case representation, and would also minimise the public funds required for this provision. It would enable the vulnerable witness to be examined effectively by an advocate who could apply more scrutiny than an impartial judge whilst protecting the vulnerable witness from being directly cross-examined by their alleged perpetrator.'

The s 31T direction depends on ‘a party to the proceedings’ applying for a direction or on the court suggesting that such a direction should be considered (s 31T(1)). The conditions for an application are one of:

• A ‘quality condition’ (s 31T(3)) is met if the quality of evidence given by the witness on cross-examination – (a) is likely to be diminished (a term from YJCEA 1999: considered separately) if the cross-examination (or continued cross-examination) is conducted by the party in person, and (b) would be likely to be improved if a direction were given under this section. ‘Quality of evidence’ is further defined at s 31T(6) and (7).
• A 'significant distress condition' (s 31T(4)) applies if – (a) the cross-examination (or continued cross-examination) of the witness by the party in person would be likely to cause significant distress to the witness, and (b) that distress is likely to be more significant than would be the case if the witness were cross-examined other than by the party in person.

A direction may only be given, says s 31T(2)(b), if it would not be contrary to the interests of justice; and in support of this and of determining the conditions in s 31T(3) and (4), s 31T(5) provides the court with a non-exhaustive check-list of factors to be considered, including views expressed by the witness and the nature of the questions to be asked and the relationship. The duration of a direction under s 31T and of any directions under it is dealt with at s 31U.

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); but if he cannot or does not then (cf YJCEA 1999, s 38(4)):

'(5) The court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a qualified legal representative appointed by the court to represent the interests of the party.'

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. These two provisions may conflict.

In YJCEA 1999, s 40, payment for such advocate is guaranteed. 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 FPR 2010 made by Family Procedure Rules Committee (and see provisions in Criminal Procedure Rules 2015 Part 23). It is to be hoped that these are synchronised with what is going on with the rules in relation to the separate subjects of, first, other vulnerable witnesses (eg witness suffering from an incapacity in (say) children proceedings); and, secondly, the separate issues of children’s evidence (in many ways part of vulnerable individuals) and of their views and other participation in children proceedings.