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Reforms to cross-examination by alleged abusers in the Prisons and Courts Bill

Mark Roscoe, barrister of The 36 Group, outlines the provisions which the Government proposes to insert into section 31 of the Matrimonial and Family Proceedings Act 1984.

 Mark Roscoe, barrister, The 36 Group

Mark Roscoe, barrister, The 36 Group 

It has long been acknowledged that there is a need to provide additional protection for the apparent victims of domestic abuse from being cross-examined by unrepresented alleged perpetrators. Such an individual, if the allegations are true, is obviously the very person that a victim would fear the most. It is plain to see how being subjected to direct questioning by an abuser, especially in the daunting environment of a courtroom, would be a terrible experience.

The criminal justice system has long since introduced measures to prevent this situation. Alleged sexual perpetrators are prohibited from conducting their own cross-examination by s.34 of the Youth Justice and Criminal Evidence Act 1999. Section 35 of the 1999 Act extends this bar to the cross-examination of child witnesses, whilst s.36 gives the criminal courts a wider discretion to prevent cross-examination by litigants-in-person.

Cobb J proposed an amendment to FPR PD 12J in his report to the President of the Family Division dated 18 November 2016. In his View from the President's Chambers (16), Munby P agreed with the spirit of the proposed amendment but felt that primary legislation is required to enact it. The Government has subsequently published the Prisons and Courts Bill, which received its first reading on 23 February 2017. Clause 47 would insert several additional provisions into section 31 of the Matrimonial and Family Proceedings Act 1984 to encompass all family proceedings. These significantly reflect the criminal procedural law of the 1999 Act.

The proposed section 31R serves as a blanket prohibition against cross-examination by perpetrators convicted or charged with unspent offences (which are to be specified in regulations) against the victim. Interestingly, this seems to apply both ways so that the victim cannot personally cross-examine the perpetrator either. It also means that the CPS charging decision (which must have passed the "realistic prospect of conviction" test in the Code for Crown Prosecutors) takes on a quasi-judicial importance in family proceedings given the mandatory effect of the prohibition against cross-examination.

Section 31S extends the blanket prohibition to those who are subject to an "on-notice" injunction (the definition of which is also to be specified in regulations). This again cuts both ways, so that any party to the proceedings who is protected by the injunction is prevented from personally cross-examining the injunctee. This section would only apply whilst the injunction is in force.

Section 31T would enable the court to make a discretionary direction prohibiting cross-examination in other circumstances. These are primarily where it would cause either the quality of the evidence given to be diminished (but would be improved if not conducted in person) or where it would cause more significant distress to the witness (such as would be greater than where it was not conducted by the party in person). The court must have regard to any views of the witness, the nature of the questions likely to be asked, any behaviour by the party in relation to the witness (where findings of fact have already been made), the general behaviour of the party in the proceedings and any relationship (of any nature) between the witness and the party.

Provision is made under the proposed section 31U for a section 31T direction to be revoked of the court's own motion, or by application by a party where there is a material change in circumstances. Reasons must be given in respect of decisions about section 31T directions.

In all situations where a party in prevented from cross-examining a witness in person, section 31V(2) would require the court to consider (whilst "ignoring this section"!) whether there is an alternative means for the witness to be cross-examined or for the evidence to otherwise be obtained.

This seems to require the court to consider the appropriateness of another party taking on the cross-examination role, exploring pro-bono representation or perhaps even allowing written questions to the witness before going on to the next stage of a lawyer being sought. This could well be an attempt to save publicly-funded legal costs, since section 31W indicates that regulations will be made for lawyers appointed under section 31V to be paid from central funds. It is notable that there is no equivalent provision in the body of s.38 of the 1999 Act.

If there is no option but for a qualified lawyer to be appointed to act for the party for the purposes of cross-examining the witness, section 31V(3) provides the party with the opportunity to instruct their own lawyer. If this fails, such as where the party refuses to do so, the court must consider whether it is in the interest of justice for a lawyer, appointed to represent the interests of the party, to cross-examine.

If such a lawyer is appointed, they are chosen by the court and are not responsible to the party. This is probably intended to prevent a lawyer from being asked to act upon instructions to put certain questions to a witness which are in truth intended merely to cause upset rather than elicit genuinely relevant evidence. However, it also appears to provide a statutory exception to the common-law duty of care to the party which would otherwise exist.
In summary, it appears that significant steps are now being taken to bring about reform. Special measures can of course be put in place under the present system, but even video links are inadequate to prevent the nastiest scenarios where ongoing intimidation and control is the true intent. Justice should not have to be trial by mental ordeal in such circumstances.

Yet whilst there will always be extreme situations, the end of legal aid in private law cases for all but the victim has brought about a situation where the perpetrator must either pay privately or represent themselves. Frustration with their situation no doubt adds to the tension in the courtroom. There is a danger that the very fact that a "dock brief" is appointed solely for cross-examination but not for the provision of other representation will perhaps fuel feelings of injustice. These proposals plug a gap, but they do not solve the underlying problem.