Cross-examination of victim by an alleged abuser
The Justice Secretary, Liz Truss, and her Ministry of Justice have woken up – at last – to the real dangers and hardship created by the present framework of certain family proceedings. The hardship has been aggravated by the cut-backs in legal aid since April 2013.
On 30 December 2016 a statement by Sir James Munby, President of the Family Division (https://www.judiciary.gov.uk/announcements/president-of-the-family-division-sir-james-munby-cross-examination-of-vulnerable-witnesses-in-the-family-court/) was issued by the Ministry. It followed a Guardian report before Christmas which dealt with, as it was said, the further abuse of domestic abuse victims permitted by family courts (https://www.theguardian.com/society/2016/dec/22/revealed-how-family-courts-allow-abusers-to-torment-their-victims ). The concerns raised by the Guardian and the President have lead to a report that the Justice Secretary, Lyn Truss, is looking into the problems raised (https://www.theguardian.com/society/2017/jan/04/truss-orders-review-to-ban-abusers-tormenting-victims-in-family-courts); and the Guardian has followed all this with a strong leader voicing concerns at the delay in protection for unrepresented victims of alleged abuse (https://www.theguardian.com/commentisfree/2017/jan/05/the-guardian-view-on-family-courts-cuts-hurt?utm_source=dlvr.it&utm).
This note concentrates – as do the Guardian articles – on the victims of alleged abuse; but the subject and the reforms needed in the family justice system go much wider; though these reforms altogether, alongside those referred to by Sir James, are together stalled by the delays insisted upon by Ministry of Justice. Reforms are urgently needed in three separate (if sometimes overlapping) areas of the work of the family courts:
- the evidence of children (as distinct from their views) in their own proceedings (as in Re W  (below));
- cases where the judge may be asked to hear the views of a child; and
- the evidence of vulnerable adult witnesses (as in eg Re A  (below)).
Evidence of ‘vulnerable people’ in family proceedings
In his statement Sir James emphasised ‘the pressing need to reform the way in which vulnerable people give evidence in family proceedings’. He pointed out that ‘the family justice system lags woefully behind the criminal justice system’ (eg under Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) Part 2, as discussed below). He said that the courts cannot act, since ‘it requires primary legislation’; and any action ‘would involve public expenditure. It is therefore a matter for ministers’.
The criminal justice ground work – to which the President refers – is in place under YJCEA 1999. A background to this legislation is provided, for example, by Lady Hale in House of Lords in R ((D) (a minor)) v Camberwell Green Youth Court  UKHL 4,  1 WLR 393 at para  (and see R v Lubemba & Ors  EWCA (Crim) 2064 and Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) Chs 8 and 19).
Lady Hale considered the specific subject of vulnerable witnesses, their evidence and cross-examination by their alleged abuser, in Re A (Sexual Abuse: Disclosure)  UKSC 60,  1 FLR 948. She stressed the ‘flexible’ bases on which family courts can deal with evidence from witnesses – and by extension, children – who, it is said, had been abused by a party (eg by the father of A in Re A):
 It does not follow, however, that X [a vulnerable young adult] will have to give evidence in person…. Family proceedings have long been more flexible than other proceedings in this respect. The court has power to receive and act upon hearsay evidence. It is commonplace for children to give their accounts in videotaped conversations with specially trained police officers or social workers…. Oral questioning could be arranged in ways which did not involve face to face confrontation. It is not a requirement that the father be able to see her face….
In the Camberwell Green Youth Court case (above) Lady Hale explained the background to YJCEA 1999 which aims to deal with the ‘quality of a witness’s evidence’ (s 16(5)). Sections 16 and 17 create three categories of witness who may be eligible for assistance by a special measures direction: first, a witness under 17 is automatically entitled to assistance (s 16(1)(a)). Secondly, s 16(1)(b) deals with incapacitated witnesses (as defined in s 16(2)) and thirdly, s 17(1) with witnesses effected by ‘fear or distress’. In the last two cases the court must be satisfied that any evidence ‘is likely to be diminished’ by the circumstances of evidence being given. In what follows ‘witness’, by analogy, will include a party (eg child, alleged abuse victim etc) in family proceedings.
Family proceedings and the VWCWG
Sir James Munby set up the Vulnerable Witnesses and Children Working Group (‘VWCWG’) in mid-June 2014. Six weeks later the Group produced an interim report which recommended a single ‘new mandatory rule [yes, a single rule] … supplemented by practice directions (PD) and guidance…’. The group did not deal with the three aspects of the issues, mentioned at the start of this article, which their brief demanded.
By Spring 2015 a further draft report was produced, followed six months later by draft rules (https://consult.justice.gov.uk/digital-communications/draft-amendments-to-family-procedure-rules/supporting_documents/annexachildrenvulnerablewitnessesfprcdraftrule.pdf) which were put out for consultation. And that is as far as this has been taken by Ministry of Justice. The draft rules have yet to be formalised, and a practice direction issued to support them. From Sir James’s statement it seems likely that the Ministry of Justice has now realised that resources issues arise, which were not considered in the VWCWG reports. The Justice Secretary who, we are told, has taken this on must now be aware – as her office should have been, at least two years ago – that state expense will be involved to protect victims (as is the case for those needing protection under YJCEA 1999, Part 2).
Youth Justice and Criminal Evidence Act 1999, Part 2
If a witness comes within one of the categories in YJCEA 1999 ss 16 or 17 s/he may be eligible for special measures assistance (YJCEA 1999 ss 23-30), including: preventing a witness from seeing a party (YJCEA 1999 s 23); evidence by live link (s 24); hearing a witness’s evidence in private (s 25); video recorded evidence or cross-examination (ss 27 and 28); and questioning a witness through an intermediary (s 29) or device (s 30).
In Re W (Children) (Abuse: Oral Evidence)  UKSC 12,  1 FLR 1485 Lady Hale spoke of the YJCEA 1999 measures and to the way family courts might use them (emphasis added):
 The family court will have to be realistic in evaluating how effective it can be in maximising the advantage while minimising the harm. There are things that the court can do but they are not things that it is used to doing at present. It is not limited by the usual courtroom procedures or to applying the special measures by analogy…. One possibility is an early video’d cross examination…. Another is cross-examination via video link [or] putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.
Sir James Munby P says he would ‘welcome a bar’ to the ability of ‘alleged perpetrators being able to cross-examine their alleged victims’; but, a lack of ‘primary legislation’ to incur ‘public expenditure’ – ‘a matter for ministers’ – makes law reform impossible. If Lady Hale in the Supreme Court (Re W  (above) and the human rights implications of legal aid legislation (per Legal Aid Sentencing and Punishment of Offenders Act 2012 s 10(3)) are followed, it is questionable whether this is necessarily the case.
Lady Hale’s statement in Re W  is authoritative guidance on the current state of the law and the ‘things the court can do’. Measures in YJCEA 1999 ss 23-28 are already largely available for family proceedings. The ‘intermediary’ point creates resources implications which can depend on case management; and case management depends on whether the intermediary or other legal assistance (per YJCEA 1999 s 38(4)) can be provided on legal aid.
Legal aid, ‘resources’ questions and a fair trial
‘The questions which challenge the child’s account’ must be fairly put to the child, says Lady Hale. This is essential; ‘not that counsel should be able to question her directly’ (Re W ). If this is so for a child, does not the same apply for any other vulnerable witness or party?
If ‘fair’ questioning is the criterion, then if this cannot be done because of the effects on a witness’s evidence then can it be a fair trial if that evidence is not given through an intermediary, or if an advocate is not instructed per YJCEA 1999 s 36(4) to cross-examine the victim for an alleged abuser acting in person? ‘The court’s only concern in family proceedings’, says Lady Hale in Re A (above) at  ‘is to get at the truth.’ The witness – or party in many family proceedings – must be able ‘to give their evidence in the way which best enables the court to assess its reliability’; and, says Lady Hale, ‘it is certainly not to compound any abuse which may have been suffered…’
If obtaining the truth does not represent a trial which is fair for the victim, then her (or the child’s) European Convention 1950 Art 6(1) rights are in issue and – means assessment permitting – she may be entitled to legal aid as an exceptional case determination (LASPOA 2012 s 10(3)). If this is correct, many resources questions can be addressed under the present legal aid scheme. No immediate changes to primary legislation would be needed to take protection for victims a long way towards the added protection they need.
5 January 2017