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Prisons and Courts Bill published

Bill addresses cross-examination of domestic violence victims by perpetrators

The Government has published a Prisons and Courts Bill which, amongst other matters, seeks to put an end to domestic violence victims being cross-examined by their alleged attackers in the family courts, preventing what the Justice Secretary has described as a "humiliating and appalling" practice. This follows an urgent review she commissioned last month.

A fact sheet, published by the MoJ and explaining the changes states:

"The proposed provisions will allow courts to put an end to the face-to-face crossexamination of vulnerable witnesses in the family courts, so that people who need to be heard are not afraid of speaking out.

For example, a party to family proceedings who has been convicted of committing an assault against the witness will not be allowed to put questions to that witness directly. The court must consider if there is a satisfactory alternative way of obtaining the evidence. If the court concludes that there is not, then it may appoint a publicly-funded legal representative to undertake the cross-examination.

The provisions will have the practical effect of:

a. introducing a blanket ban on cross-examination in person in certain specified circumstances – for example, where the would-be questioner has been convicted of committing a violent or sexual offence against the witness;

b. giving the court a discretion to prohibit such cross-examination in other specified circumstances – for example, where the court is satisfied that such cross-examination would cause significant distress to the witness;

c. requiring the court to consider alternatives to cross-examination where a prohibition on cross-examination in person applies;

d. giving the court a power in specified circumstances to appoint a funded legal representative to ask questions on behalf of a party who is prohibited from cross-examining in person; and

e. making provision for the public funding of such legal representatives."

The Bill inserts into the Matrimonial and Family Proceedings Act 1984 a new Part 4B entitled 'Family Proceedings: Prohibition of Cross-examination in Person'. For those provisions, click here.

The Bill received its First Reading on 23 February 2017 and will receive its Second Reading on a date to be appointed.

For the Bill, click here. For the factsheet, click here.

The Family Procedure Rule Committee has also launched a consultation in respect of a draft Practice Direction 3AA relating to the participation in proceedings of, and giving evidence by vulnerable persons. For more details, click here.

The Ministry of Justice has published a research study exploring how the family judiciary manage cases with the cross-examination of vulnerable or intimidated witnesses by alleged perpetrators of abuse, and establishing what, if any, further provisions could be considered to support them in doing so. For that document, click here.

Nigel Shepherd, Resolution's national chair, said:

"We welcome the MoJ's proposals to prevent alleged abusers from being able to cross-examine the person they're alleged to have abused. It is a reform that is long overdue in family cases where the fear of such cross-examination can result in victims of abuse not seeking the protection they need and, if they do go ahead, adds to the trauma they have suffered.

"As ever with legislation, the devil will be in the detail and there is much hard work to be done to ensure these measures can be successfully delivered. Resolution looks forward to playing its part in this."

Chair of Resolution's Domestic Abuse Committee Philip Scott said that the proposals need to work in family cases whilst ensuring a fair trial takes place:

"These are sensitive and important cases, often involving children's futures. Just having a court-appointed advocate to cross-examine an abuser may be too simplistic.

"The impact of LASPO has led to an increase in litigants in person, meaning we've seen a rise in the number of defendants cross-examining those they have abused. It has also led to more victims having to face court proceedings without legal support. One immediate "quick win" for the government to support victims of domestic abuse would be to widen the gateway to private family legal aid so that fewer parties are left unrepresented.

"At the same time, the Government must urgently carry out its long-awaited review of LASPO and provide the necessary funding to allow vulnerable witnesses the professional support they need. Currently, provisions in this Bill will do nothing to reduce the number of victims being denied legal aid.

"There are further measures needed to make to ensure family courts support vulnerable witnesses as well as criminal courts do, such as improving facilities. This should be an urgent priority for the government."

Cris McCurley, partner with Ben Hoare Bell and and advisory board member of Rights of Women and Women's Aid, commented:

"I've seen the impact on clients of being cross-examined by their abuser. I've had two women, in different cases, collapse and be taken to hospital from sheer terror.  This measure is long overdue, but must be widened to allow for other witnesses impacted by the abuse to be protected, for example, an older child of the family, or other family member may be equally vulnerable."

For an article by Cris McCurley about the draft PD and its background, click here.

23/2/17 (updated 26/2/17)