Evidence of vulnerable witnesses

(1)        AM (Afghanistan) v Secretary of State for the Home Department

 

Fair assessment of vulnerability

 

As the report (with draft regulations attached) of Vulnerable Witnesses and Children Working Group (‘VWCWG’) continues to rot in the Lord Chancellor’s in-tray – or its resources implications to be embroiled with some Treasury austerity sub-committee – three cases concerning vulnerable witnesses and child law have been reported recently.

 

The first is an immigration case, but one which concerns a 15 year old Afghan asylum seeker and the assessment of his credibility in the administrative appeals tribunals. The Court of Appeal was unimpressed as to how he had been dealt with.  In AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123 (27 July 2017) the court commented on the treatment of evidence of child and vulnerable witnesses and held that a First-tier Tribunal (‘FtT’) ‘did not properly consider the impact of the appellant’s age, vulnerability and the evidence of [his] significant learning disability’ ([18]). They sent the case back for reconsideration. The Lord Chancellor was given permission to intervene. The main judgment (with which Gross and Underhill LJJ agreed) was given by President of the Tribunals (‘Ryder LJ’). All parties and the court agreed that the appeal should be allowed.

 

Asylum application by 15 year old Afghan

 

AM’s father was a member of the Taliban. After the father’s death AM travelled across Europe to UK and had claimed asylum. He was beaten up by Afghan police before leaving, and was threatened by them and by the Taliban in Afghanistan. He had a real fear of persecution.  It was said that he has mental health and psychological difficulties. The Secretary of State refused him asylum but granted leave to remain till 17½. Reasons for this included that his evidence was not credible.

 

The tribunal paper included a psychologist’s report which the FtT judge said had only been ‘drawn to his attention’ after the hearing. That said Ryder LJ was not true and was, in any event, ‘a wholly inadequate response to the content of the report’ which included ‘opinions about the appellant that were relevant to procedural fairness’ ([12]). AM’s appeal was rejected as was his appeal to the Upper Tribunal (‘UT’).

 

Ryder LJ considered that the psychologist’s opinion for the FtT was ‘appropriate’; and the FtT judge was not entitled, ‘effectively’, to ignore ([13]) them. He therefore concluded:

 

[16] In like manner to my conclusion at [13] I have come to the firm view that the UT judge took no sufficient steps to ensure that the appellant had obtained effective access to justice and in particular that his voice could be heard in proceedings that concerned him.  Procedurally, the proceedings were neither fair nor just.  That was a material error of law. The appellant was a vulnerable party with needs that were not addressed….  The parties agree.

 

Credibility and objective evidence

 

Central to the court’s view of the tribunal’s assessment of evidence was that the FtT judge looked at what he regarded as the ‘credibility’ of AM, rather than considering his vulnerability and looking at to other available ‘objective evidence’ first. He had an ‘obligation’ to ‘give precedence and greater weight to objective evidence and indicators of risk’ to AM, rather than to his personal credibility. These evidential factors must be reviewed ‘in light of [AM]’s age, vulnerability and learning disability’ ([19]). Had the tribunal properly considered its own practice direction and rules this error and the importance of AM’s age would have been clear to it.

 

The FtT and the parties are required to ensure that an appellant is able to participate fully in the proceedings. There is a flexibility and a wide range of specialist expertise which the tribunal can use to deal with a case fairly and justly.  Within the Rules themselves this flexibility and ability to override formality is made clear, said Ryder LJ. If this is not done there is a risk that any decision made by a tribunal will be ‘unlawful’; and this is especially so where – as here – the welfare of a child is in issue.

 

Ryder LJ reviewed the available tribunal practice directions on dealing with ‘vulnerable adults and sensitive witnesses’ ([31] and [32]): ‘failure to follow them will most likely be a material error of law’ ([30]).

 

 

(2)        Carmarthen County Council v Y

 

Evidence of an incapacitated witness

 

Carmarthen County Council v Y and others [2017] EWFC 36 (30 June 2017) relates to a preliminary fact-finding issue in children proceedings (the heading to the case hints that it is care proceedings). Two immediate problems arise. It is not clear till late in Mostyn J’s judgment what the primary application before the court is; though the preliminary facts issue is summarised as:

 

[1] … The facts in dispute are whether, or not, A repeatedly raped his daughter, Y, more than 20 years ago when she was under 16. It is said that the abuse continued after she turned 16.  A strongly denies the accusation. His wife B says that the allegation is impossible to believe, as does Y’s sister C. Y herself suffers from mental illness and has not participated in the trial. Her counsel take a neutral stance in relation to the allegations, as does the [children’s guardian].  The local authority submits that the accusation is true.

 

But to what application do these facts relate (the heading of the case refers to a child Z)? Z is introduced half way through the judgement at [24]. It becomes clear at [36] and [37] that she was born on 25 October 2011 and that she is the daughter of Y and therefore the grand-daughter of A. By the end of the judgement the implication that there are care issues in relation to Z becomes clear.

 

This might have been resolved by the second problem. Mostyn J tells the reader:

 

[4] For an exhaustively full account of the background reference should be made to the chronology prepared by junior counsel for the local authority, which has left no stone unturned. I am grateful for the preparation of that very useful document.

 

But this judge has already made clear that he does not consider that documents in family proceedings should be released (DL v SL [2015] EWHC 2621 (Fam) sub nom L v L (Ancillary Relief Proceedings: Anonymity) [2016] WLR 1259, Mostyn J at [16]). In law, there are real question on this (see eg ‘Release of court hearing documents’: ). As matters now stand ‘reference’ cannot now be made to the ‘useful document’. Both problems remain.

 

Issue of law: ‘a probability of 51%’

 

The issue of law relates to Y’s evidence. Such was her mental state that she could not be called at court; not be cross-examined on what she said on behalf of her father A (who was joined s a party in the proceedings). Such was the unreliability of what Mostyn J saw, he held that A could not be required to answer Y’s allegations, and that what she said should be treated as having not happened:

 

[44] The decision of the House of Lords in Re B (Children) [2008] UKHL 35 confirms what we all already knew, namely that if an allegation in relation to a past (as opposed to future) fact or event is not proved to a probability of 51% then it is treated as not having happened: see Lord Hoffmann at paragraph 2. The court may feel that there is a not fanciful (im)probability, say 25%, of the event having happened, but that mere suspicion, for that is all it is, entirely falls by the wayside….

 

That this evidence was from a vulnerable witness (though she was no longer a child) and that therefore whether it should have been seen in the light of other objective evidence of her credibility (if there was any: her mental state might be part of such a question), in accordance with AM (above) was not considered by Mostyn J. In fairness that decision was only handed down a couple of days before Mostyn J’s judgment. However, in AM at [19] Ryder LJ referred to older Court of Appeal authority (which would have been available to Mostyn J) namely Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367.

 

In Mibanga the Court of Appeal stressed the importance of reference to expert evidence to assist with an objective view of credibility. In that case Wilson J (sitting in the Court of Appeal and with whom Ward and Buxton LJJ agreed) said:

 

[24] It seems to me to be axiomatic that a fact-finder must not reach his or her conclusion before surveying all the evidence relevant thereto. Just as, if I may take a banal if alliterative example, one cannot make a cake with only one ingredient, so also frequently one cannot make a case, in the sense of establishing its truth, otherwise than by combination of a number of pieces of evidence. Mr Tam, on behalf of the Secretary of State, argues that decisions as to the credibility of an account are to be taken by the judicial fact-finder and that, in their reports, experts, whether in relation to medical matters or in relation to in-country circumstances, cannot usurp the fact-finder’s function in assessing credibility. I agree. What, however, they can offer, is a factual context in which it may be necessary for the fact-finder to survey the allegations placed before him; and such context may prove a crucial aid to the decision whether or not to accept the truth of them. What the fact-finder does at his peril is to reach a conclusion by reference only to the appellant’s evidence and then, if it be negative, to ask whether the conclusion should be shifted by the expert evidence….

 

Mostyn J says he read a massive amount of evidence. On the information of his judgment it is not possible to say what specific medical evidence in relation to Y that included; and therefore it is not possible to assess to what extent – in Mibanga and AM terms – he assessed Y’s credibility. He says first:

 

[6] As stated, Y has not given oral evidence. She is presently detained in a psychiatric hospital under the Mental Health Act. There is compelling, unchallenged, medical evidence that it would be very harmful for her to give oral evidence in court. A therefore has not had the opportunity of confronting his principal accuser, nor has the court had the opportunity of assessing under cross-examination the reliability of the evidence deriving from her.

 

Later in his Judgment Mostyn J says:

 

[40] In February 2016 Y was sectioned. She has been in a psychiatric unit ever since and is under close supervision. Her condition is truly pitiful in that she seems to wish to engage in self-harm at almost every opportunity. As I have stated above, the medical evidence is very clear – for her to give evidence or to participate in the proceedings could aggravate her condition considerably.

 

No more detail of the evidence or its assessment of Y’s credibility is attempted by the judge; nor, for example, does he ask why her mental capacity may be affected as it now is. He did not review how a witness in Y’s position might have been dealt with in the analogous position dictated for criminal trials under Youth Justice and Criminal Evidence Act 1999 Pt 2 (though it is likely he was not referred to that Act).

 

 

(3)        H v D (Appeal – Failure of Case Management)

 

A right to cross-examine?

 

The title of H v D (Appeal – Failure of Case Management) [2017] EWHC 1907 (Fam), Peter Jackson J gives a clue as to what is coming. In a convoluted series of hearings concerning a contact dispute, the first instance judge had attempted to protect the mother from direct cross-examination by the father of their child.

 

Peter Jackson J referred early in his judgment to the following:

 

[6] Where questioning by the court is for some reason not possible, the situation of the alleged victim may be entirely unsatisfactory: see for example the recent observations of Hayden J in Re A (a minor) (fact finding; unrepresented party) [2017] EWHC 1195 (Fam) at 57-63.

 

Neither he nor Hayden J (in Re A) seems to have been referred to the Court of Appeal case of Re K & H (Children) [2015] EWCA Civ 543 sub nom K and H (Private Law: Public Funding) [2016] 1 FLR 754, where Lord Dyson MR said in terms that if a judge considers that parent B should not cross-examine the other (A),  then the judge must make do and conduct the questioning of A for B (Matrimonial and Family Proceedings Act 1984 s 31G(6)) (and see per Lord Bingham CJ in R v Brown (Milton) [1998] 2 Cr App Rep 364 cited by Lord Dyson at [55]).

 

Peter Jackson J explains that in August 2015 – yes, 2015 – the matter was allocated to HHJ Kushner QC.  Her first task, said the judge, was to conduct a hearing of the mother’s allegations which were likely to have a strong effect on the welfare decision, whether proved or not. He went on: ‘[10] A broad survey of the events over the past two years makes very concerning reading.  It would be no exaggeration to say that practically no progress has yet been made;’ and he then lists 10 examples of why he was concerned at the lack of progress.

 

At the conclusion of all this, the circuit judge ordered that the father be permitted to cross-examine the mother. She then appealled against this decision; and, in the course of the appeal, advance an ‘additional ground of appeal, based upon the general failure of case management’.

 

Peter Jackson J allowed the mothers appeal, and sent the case back to another judge in the court appealled from. Perhaps his most controversial finding was that the father had no right to ‘cross-examine’ or ask questions of the mother ([21], first bullet-point). Directions had already been given to which the father did not object. The court had made ‘repeated orders (five in all) requiring [him] to put his questions in writing’. The father did not comply, ‘no sanctions were applied, and it was not until 7 March 2017 (Day 2 of the hearing), that he eventually produced a list of questions’ ([10](ii)). In fairness to Peter Jackson J, he perhaps treated that direction as sufficient to deal with F’s ‘right to cross-examine’.

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Cross-examination by alleged abusers; and thoughts for a way through…

Abusive cross-examination: recent case-law

 

Cross-examination of complainants by their alleged abusers has had a number of outings in the past three months, including Re A (A Minor: Fact Finding; Unrepresented Party) [2017] EWHC 1195 (Fam), Hayden J and Re D (Appeal – Failure of Case Management) [2017] EWHC 1907 (Fam), Peter Jackson J. Re A has drawn at least two professorial comments in the mainstream legal press: ‘Vulnerable witnesses’ [2017] Family Law 704 by Penny Cooper and ‘Abuse upon abuse’ [2017] New Law Journal by Jonathan Herring.

 

The importance of this subject, and the inadequacy of the family proceedings system to deal fairly with it, cannot be over-emphasised. What is surprising about each of the above sources is their failure – as I read them – to deal with the recent jurisprudence on the subject. Hayden and Peter Jackson JJ (respectively at [25] and [6]) refer to Family Procedure Rules 2010 PD12J; but a practice direction is low down the citation pecking order when compared with statutory and common law (in this case Court of Appeal) authority.

 

Jurisprudence on this subject must surely touch upon at least to the following:

 

  • Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) Pt 2 (and see European Convention 1950 Art 6.3(d). The 1999 Act is the source for much of the thinking of the now stalled Vulnerable Witnesses and Children Working Group (VWCWG: touched on below) and of the proposed reforms for family proceedings by the Prison and Courts Bill cl 47 lost at the June 2017 General Election.
  • Matrimonial and Family Proceedings Act 1984 (MFPA 1984) s 31G(6) (referred to by Pater Jackson J, though not specifically cited); and
  • K and H (Private Law: Public Funding)[2015] EWCA Civ 543, [2016] 1 FLR 754

 

To put in context the evidence of any witness who is entitled to rely on ‘special measures’ (as explained below) it is worth recalling Lady Hale in the Supreme Court in Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948 (where the Supreme Court said a vulnerable witness must submit to challenge by a defendant of her allegations):

 

[36] … Family proceedings have long been more flexible than other proceedings in [the way the court receives evidence]. 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 [the face of the witness X]. It is, to say the least, unlikely that the court would ever allow direct questioning by the father, should he still (other than in this court) be acting in person. The court’s only concern in family proceedings is to get at the truth. The object of the procedure is to enable witnesses to give their evidence in the way which best enables the court to assess its reliability. It is certainly not to compound any abuse which may have been suffered…

 

And a thought: could a scheme akin to the Bar Pro Bono unit be devised to provide examination for the court of a witness or party who is to be cross-examined by her abuser, akin to YJCEA 1999 s 38(4); and as explained further below.

 

Statutory starting point

 

The statutory starting point is MFPA 1984 s 31G(6). This states:

 

(6)Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to—

(a)ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and

(b)put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.

 

MFPA 1984 s 31G(6) is derived from Magistrates’ Courts Act 1980 s 73 (derived from Magistrates’ Courts Act 1952). It was explained by Lord Dyson MR in Re K and H (above):

 

[42] …. [MFPA 1984 s 31G(6)] … enables the court to put questions to a witness on behalf of a party in the absence of legal representation, or to take steps itself to cause those questions to be put to enable effective examination of the witness…

 

The case concerned funding of representation by the Lord Chancellor, so comments on s 31G(6) may be said to be obiter. Whether obiter or part of the ratio the comments of Lord Dyson MR, sitting with two highly experienced family lawyers – Black and McFarlane LJJ, both of whom agreed with him – must command respect. He considered the need to the judge to ask questions in Re K and H to be ‘fairly straightforward’. Had the judge in Re D followed the district judge’s directions for the father to prepare a list of questions (as Lord Dyson MR suggested for the judge in Re K and H at [60]), that would have been satisfactory; and the judge could have taken over from there.

 

Youth Justice and Criminal Evidence Act 1999

 

Reference to YJCEA 1999 Pt 2 enables a court to look – as did Roderic Wood J in the often cited case of H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 – at the statutory source of the ideas behind cl 47 (yet to re-emerge from the Ministry of Justice drafting department since the election). The context of the 1999 Act in family proceedings is fully explained in Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) at Chs 8 (‘Special measures for receiving evidence’) and 19 (‘Children: views and evidence’).

 

For present purposes and in criminal proceedings only, an advocate can be appointed by the court to conduct cross-examination, ‘in the interests of the [defendant]’ where he – it will normally, though not invariably, be a man – has no legal representative (and see comments of Lord Bingham CJ in R v Brown (Milton) [1998] 2 Cr App Rep 364, which are said to have been partly instrumental in passing YJCEA 1999 s 38). YJCEA 1999 s 38 considers the circumstances in which, after consideration of the point, a court determines that it is ‘in the interests of justice for the witness to be cross-examined by a legal representative appointed to represent the interests of the accused’ (s 38(3)). It that case, s 38(4) continues:

 

(4)If the court decides that it is necessary in the interests of justice for the witness to be so cross-examined, the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused.

 

The legal representative will then be paid for from public funds (YJCEA 1999 s 40). If volunteer advocates (see eg Bar Pro Bono Unit) could fill this role if asked to do so by the court, might that work in the type of case which so concerned Hayden and Peter Jackson JJ? The point could be dealt with as a special measure as part of case management directions (in much the same way as seems to have been the case with the original district judge’s case management directions in Re D).

 

A practice direction: case management

 

Peter Jackson J (at [6]) drew attention to PD12J ‘Child Arrangements and Contact Order: Domestic Violence and Harm’ which he pointed out includes the following:

 

  • A definition of domestic violence that includes controlling, coercive or threatening behaviour, violence, or abuse, including psychological, physical, sexual, financial, or emotional abuse (paragraph 3);
  • Approval for the court to question witnesses itself in order to protect alleged victims (paragraph 28):

 

He held that ‘While ensuring that the allegations are properly put and responded to, the fact-finding hearing can be an inquisitorial (or investigative) process, which at all times must protect the interests of all involved.’ He continued, dealing with the ‘fact-finding’ hearing:

 

  • Each party can be asked to identify what questions they wish to ask of the other party, and to set out or confirm in sworn evidence their version of the disputed key facts.
  • The judge or lay justices should be prepared where necessary and appropriate to conduct the questioning of the witnesses on behalf of the parties, focusing on the key issues in the case.

 

Peter Jackson J concluded this passage of his judgement:

 

[6] … Victims of violence are likely to find direct cross-examination by their alleged abuser frightening and intimidating, and thus it may be particularly appropriate for the judge or lay justices to conduct the questioning on behalf of the other party in these circumstances, in order to ensure both parties are able to give their best evidence.

 

By contrast, in Re A Hayden J stated that he refused to deal with a case in the way he had been required to do (but without reference to s 31G(6) or Re K & H:

 

[60] It is a stain on the reputation of our Family Justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator. This may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.

 

Special measures: Youth Justice and Criminal Evidence Act 1999

 

The usefulness of YJCEA 1999 Pt 2 is that is summarises categories of case (child and incapacitated witnesses) in which special measures can be used in criminal proceedings. Many of these – video links, screens etc as mentioned by Lady Hale in Re A – are in effect already in use in family proceedings; and to these can be added special rules as to hearsay and ABE interviews for children proceedings. YJCEA 1999 s 18 (with Criminal Procedure Rules 2015 Part 18 and its supporting practice direction) defines how special measures directions at YJCEA 1999 ss 23-30 are to be made available by the court. The working of special measures was explained by Lady Hale in R (D (a minor)) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393.

 

Amongst the forms of special measure under YJCEA 1999 and already available in family proceedings are:

 

  • preventing a witness from seeing a party, by ‘screen or other arrangement’ (YJCEA 1999 s 23);
  • allowing a witness to give evidence by live link (s 24);
  • hearing a witness’ evidence to the exclusion of others (s 25);
  • admitting video recorded evidence or cross-examination (ss 17 and 28; and see ABE evidence in the case of child or other intimidated witness);
  • questioning a witness through an intermediary (s 29): in principle and if funding (eg by legal aid is available) in principle this form of assistance should be available in family proceedings.

 

Pro bono assistance as a special measure

 

Special measures are available. With imaginative case management – and perhaps eg the funding of proper video-link equipment in family courts – intimidated witnesses can be helped already in family courts.

 

Pending further family law legislation promised by the Government, could pro bono (free) advocacy assistance as a special measures direction equivalent to YJCEA 1999 s 38(4) be a way to help in cases identified by the judges referred to above. Even could this be funded as an exceptional case determination (Legal Aid Sentencing and Punishment of Offenders Act 2012 s 10(3); and see ‘Funding implications for vulnerable witnesses’ [2017] Legal Action at 6).