Cross-examination of the vulnerable by litigants in person – A rescue craft in sight?

It is a well-established legal principle that a person faced with allegations of illegal wrongdoing should have the opportunity to challenge the case against them. The testing of evidence, it is argued, assists the court to understand the truth of a factual dispute for, as John Milton rhetorically asked during his 17th century campaign for reform of England’s divorce laws, “who ever knew Truth put to the worse, in a free and open encounter?” It is axiomatic that a party may challenge the evidence against them through cross-examination of witnesses. However, where a party is an alleged perpetrator of abuse, and is challenging allegations of abuse made against them by their alleged victim, and proposes to cross-examine their alleged victim in person, competing policy considerations are engaged. As Mr Justice Hayden recently commented at paragraph 20 of PS v BP [2018] EWHC 1987 (Fam), the process of being cross-examined by a self-representing alleged abuser is “entirely different” for an alleged victim than the process of being robustly challenged by an advocate – “the latter may trigger in the victim a vivid recollection of abuse but the former can have the effect of replicating the abuse. In simple terms the process itself becomes abusive.”

Parliament has recognised the problems entailed through cross-examination of vulnerable witnesses by litigants in person, because sections 34 to 36 of the Youth Justice and Criminal Evidence Act 1999 empower the Criminal Court to restrict such cross-examination, and section 38 enables the Criminal Court to appoint an advocate to conduct the cross-examination at public expense. However, these provisions only directly apply in the Criminal Court, leaving the Family Court with less scope to prevent alleged victims from being cross-examined by their alleged abusers in fact finding hearings within the family jurisdiction. This author agrees with the opinion of Mr Justice Wood at paragraph 25 of H v L and R [2007] 2 FLR 162, that there is simply no policy justification for the distinction. Allowing alleged perpetrators of abuse the opportunity to wield further power and control over their alleged victims through cross-examination is surely a clear disregard for the impact of abuse, whether the cross-examination takes place in the criminal or family jurisdiction? Equally, it is unclear why a person facing allegations of serious abuse in the Family Court is not entitled to representation at public expense, when they would be so entitled in the Criminal Court? One justification might be that a person who has allegations of abuse established against them in the Criminal Court is liable to imprisonment. However, findings of abuse made in the Family Court may also lead to very significant interferences with a person’s Article 8 rights (for example, on a person’s freedom to contact their children). Therefore, there is no coherent policy justification for denying the Family Court the means of appointing an advocate to conduct cross-examination of an alleged victim, in leu of cross-examination by a self-representing alleged perpetrator, when this power already exists in the Criminal Court.

Mr Justice Hayden, speaking in the aforementioned High Court case of PS v BP [2018] EWHC 1987 (Fam) has called for Parliamentary intervention to address the “untenable” situation with which the Family Court is currently faced. At paragraph 34 of his judgement, Mr Justice Hayden stated that until a cogent framework could be established by Parliament, analysis of the core source materials could only offer “a forensic life belt until a rescue craft arrives”. In summary where “serious and intimate” allegations are made, and the alleged perpetrator is due to cross-examine the alleged victim in person:

▪ a ‘ground rules’ hearing will always be necessary, and should normally be conducted prior to the fact-finding hearing, with judicial continuity between the two hearings;
▪ a Judge must remind themselves that an accuser bears the burden of proving the allegations, and fairness to the accused cannot be compromised by a witness’s distress;
▪ there is no presumption that the accused will automatically be barred from cross-examining the accuser;
▪ the Judge must consider whether the evidence is likely to be diminished if cross-examination is conducted by the accused, and whether the evidence is likely to be improved if a prohibition on direct cross-examination were directed;
▪ when the court forms the view that cross-examination of the alleged victim itself risks being abusive, it should bear in mind that the impact of the court process is likely to resonate adversely on the welfare of the subject children;
▪ where the factual conclusions are likely to have an impact on child arrangements or welfare, the court should consider joining the child as a party and securing representation. Where that is achieved, the child’s advocate may be best placed to undertake the cross-examination;
▪ If the court has decided that cross-examination will not be permitted by the accused and there is no other available advocate to undertake it, the Judge should require questions to be reduced to writing. A Judge should ask only those questions which are relevant and proportionate. This questioning should have forensic rigour and should therefore be dynamic and never formulaic. However, it may be possible for the Judge to conduct the questioning in an open and less adversarial style than that which might conventionally be undertaken by a party’s advocate.

The observations in PS v BP [2018] EWHC 1987 (Fam) usefully and concisely outline those matters that the Family Court should have regard to when an alleged perpetrator of abuse is due
to cross-examine the alleged victim. However, Mr Justice Hayden was also wise to recognise that the judgement does not offer an adequate substitute for statutory intervention, because cross-examination conducted by a child’s advocate or a Judge is not a sustainable solution to the present dilemmas. A case may be factually complex, without necessitating the appointment of a Child’s Guardian. In any event, it is important the position advanced by the Child’s Guardian is just that: the position of the Child’s Guardian. The independence of the Child’s Gaudian should not be compromised by any competing duty to put the case of another party to the dispute. If the cross-examination were conducted wholesale by a Judge, there is risk that a perception of bias arises, if one (or both) of the parties feel that the questions asked were unfair or inadequate. Furthermore, the additional time that a judge would need to prepare the cross-examination would add delay to the court proceedings, militating against the principle in s1(2) of the Children Act 1989 that delay is likely to prejudice the welfare of the child. For these reasons, it is welcome that Mr Justice Hayden sent a copy of his judgement to the Justice Secretary, so the Government could consider the issues raised.

On the 21st of January 2019 the UK Government published the Domestic Abuse Bill. If enacted, clause 50 may provide the rescue craft in response to the judicial distress call. Under draft clause 50, a series of amendments are proposed to the Matrimonial and Family Proceedings Act 1984. In summary:

▪ New clause 31R would prevent a person convicted or cautioned for an offence (to be specified by the Lord Chancellor) from cross-examining in person the victim or alleged victim of that offence.
▪ New clause 31S would bar a party subject to an on-notice protective injunction, from cross-examining in person a witness protected by the injunction.
▪ New clause 31T would provide the Family Court with a discretionary power to prohibit cross-examination by a litigant in person where the “quality” or “significant distress” conditions were met, and where it would not be contrary to the interests of justice to so prohibit.
▪ The quality condition will be met where the completeness, coherence, and accuracy of the witness’s evidence given under cross-examination would be diminished by the cross-examination being conducted by a litigant in person, and improved were such cross-examination prohibited.
▪ The significant distress condition will be met if the cross-examination is likely to cause significant distress to the witness, with that distress being more significant if the cross-examination were conducted by a litigant in person, than by some other means.
▪ Under proposed clause 31V, where a litigant in person is prevented from cross-examining a witness (due to the foregoing provisions) the court must “consider” if there is a “satisfactory alternative means” of conducting the cross-examination or obtaining the evidence which might have been given under cross-examination.
▪ If there is no satisfactory alternative means, the court must then invite the litigant in person to arrange for a qualified legal representative to act on their behalf for the purpose of cross-examination. If this invitation is not accepted, but the court considers cross-examination “necessary” in the interests of justice, then the court must appoint a qualified legal representative to conduct the cross-examination, with their fees paid out of central funds.

The proposals made by the UK Government in clause 50 of the Domestic Abuse Bill 2019 are hugely welcome. Clause 50 has the potential to provide a framework in which the Family Court can engage with the cross-examination of vulnerable individuals by litigant in person, in the same cogent manner as the Criminal Court. Sadly, there must be real doubt over how expeditiously clause 50 can be enacted given Parliament currently seems paralysed by the Brexit debate. Whilst the clock ticks, the Family Court will simply have to cleave to its life belt, and the disturbing spectacle, of alleged perpetrators of abuse directly cross-examining their alleged victims, seems likely to continue.

 

Samuel Peake

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