Open justice and domestic abuse court hearings: now and under the bill

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A draft bill: domestic abuse hearings in 2019

 

On 21 January 2019 the Home Office and the Lord Chancellor published, to press acclaim (see eg Guardian and Observer) their joint Transforming the Response to Domestic Abuse: Consultation Response and Draft Bill January 2019. The main features of the bill are:

  • A definition of ‘domestic abuse’ thus far absent from statute and the common law; and much wider and specific than before
  • A commissioner (‘tsar’ as the press call them?) who is to be funded by the government and be responsible for prevention of domestic abuse and for provision of support for those abused (Part 2)
  • New police powers and preventative notices and order (Part 3)
  • Protection by a court-appointed advocate for abuse by cross-examination of complainants (Part 4).

 

Hybrid procedural court powers

 

The bill’s powers can be exercised across a range of types of proceedings, civil (ie including family) and criminal. As at present drawn cl 27 enables the court to make domestic abuse orders (as defined by the bill). Clause 27 includes the following:

 

27 Domestic abuse protection orders otherwise than on application

Family proceedings

(2) The High Court [ie the Family Division] or the family court may make a domestic abuse protection order against a person (“P”) in any family proceedings to which both P and the person for whose protection the order would be made are parties.

Criminal proceedings

(3) Where a person (“P”) has been convicted of an offence, the court dealing with P for that offence may (as well as sentencing P or dealing with P in any other way) make a domestic abuse protection order against P….

(5) A court by or before which a person is acquitted of an offence may make a domestic abuse protection order against the person.

(6) Where the Crown Court allows a person’s appeal against conviction, the Crown Court may make a domestic abuse protection order against the person.

Civil proceedings

(7) The county court may make a domestic abuse protection order against a person (“P”) in any relevant proceedings [as defined by the Secretary of State] to which both P and the person for whose protection the order would be made are parties.

 

Application of the open justice principle: criminal court and Family Law Act 1996

 

An immediate question which arises in relation to the bill is whether all proceedings which involve allegations of domestic abuse should be heard in open court, as they will be if based on a criminal charge; or will they, as in family proceedings, be heard in secret (see Clibbery v Allan (below))? The privacy of family courts hearings is defined by Family Procedure Rules 2010 (FPR 2010) rr 10.5 (for domestic violence proceedings) and 27.10 (for the vast majority of other family proceedings covered by FPR 2010. The term the rule-makers use is ‘private’

 

It will be assumed that this question arises – now – in parallel criminal and family proceedings on the same facts. The accused (AA) and the main witness for the prosecution in criminal proceedings are the same as the respondent and alleged victim (ie applicant) in the family proceedings. The facts are the same in each set of proceedings.

 

As the law now stands almost all family proceedings injunctions, for non-molestation and occupation (of the party’ and their children’s former home) orders are dealt with under Family Law Act 1996 (FLA 1996) Part 4. (FLA 1996 Part 4 cases count as proceedings under FPR 2010.) It is said by FPR 2010 r 27.10 that all such cases are to be heard in ‘private’.

 

By contrast criminal proceedings will be heard by magistrates or a jury in open court. The hearing in family proceedings – judging by the rules, is to be in secret (or ‘private’). That is said to be the law, now (see eg Transparency in the family courts by Doughty et al (2018)). At Transparency para 2.148 seems to accept without question what FPR 2010 rr 10.5 and 27.10 says, without any reflection on the powers (vires) of Family Procedure Rules Committee who made those rules.

 

The assumptions on which the Transparency book is based are unlikely to represent the law, despite what the rules say. Unless children are involved, there seems no logic in saying that in one court on the same facts a defendant should be tried in open court; but that in proceedings under family law rules any trial should be secret. Logic or not, the law also denies that domestic abuse proceedings should, as a default proposition, be heard in secret.

 

Open justice: a common law principle

 

What is to be heard in open court is defined by the common law, probably going back to medieval times, certainly to the period immediately after the Puritan Revolution. This is explained by the House of Lords in Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417. Secrecy – hearings in ‘chambers’ – was guaranteed then only for children proceedings, for hearings concerning ‘lunatics’ and where publicity of hearing might destroy the point of the trial (eg for patents). Scott was a family case; but one – nullity – where their Lordships seemed astonished that anyone could contemplate a hearing other than in public.

 

The common law can only be changed by a higher court decision, or by Act of Parliament. The open justice principle has been immune to date from statutory intervention.

 

However, things have moved on since Scott: national security and confidential information of a party has been added. The common law secrecy/privacy list is best summarised now by CPR 1998 r 39.2(3) which is as follows:

 

General rule – hearing to be in public

(3) A hearing, or any part of it, may be in private if –

(a) publicity would defeat the object of the hearing;

(b) it involves matters relating to national security;

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

(d) a private hearing is necessary to protect the interests of any child or protected party;

(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;

(f) [not relevant]; or

(g) the court considers this to be necessary, in the interests of justice.

 

This list is reproduced almost word-for-word in relation to open court divorce etc hearings (FPR 2010 r 7.16(3); so the FPR 2010 rule-makers are well aware of CPR 1998 r 39.2(3).

 

A court rule cannot create law

 

The next legal principle has been described as ‘trite’ law – ie obvious (see eg Jaffray v The Society of Lloyds [2007] EWCA Civ 586, [2008] 1 WLR 75 referring to British South Africa Co v Companhia de Mocambique [1893] AC 602 per Lord Herschell LC at 628). It is that a rule cannot create or change the law (unless Parliament says). This was explained by Lady Hale in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 as follows:

 

[27] Neither the Rules of the Supreme Court nor the Civil Procedure Rules can change the substantive law unless expressly permitted so to do by statute: see Re Grosvenor Hotel Ltd (No 2) [1965] Ch 1210 [per Lord Denning MR].

 

Rules exist only to regulate the law, save where Parliament says a rule can change a law. FPR 2010 are made under powers given to Family Procedure Rules Committee under Courts Act 2003 ss 75-76; and I can see no power to create law there (only in one case to ‘modify’ rules of evidence).

 

So what is the position in law of hearings under FLA 1996 Part 4? As it happens a frequently cited case – Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 1 FLR 565 – relates entirely to the 1996 Act. It was decided after introduction of CPR 1998 (which does not apply directly to family proceedings: CPR 1998 r 2.1(2)) but before FPRC made FPR 2010. The case defines the common law (ie judge-made law) for family proceedings of this type.

 

Clibbery v Allan: open court and domestic abuse in 2019

 

Dame Elizabeth Butler-Sloss P said of the terms in issue in Clibbery:

 

[19] … I am driven to recall Humpty Dumpty: ‘When I use a word – it means just what I choose it to mean – neither more nor less.’

[20]   I would therefore suggest that there are three categories of case, those heard in open court, those heard in private and those heard in secret where the information disclosed to the court and the proceedings remain confidential.

 

Dame Elizabeth and Thorpe and Keene LJJ, held that FLA 1996 Part 4 hearings were to be held in ‘private’ (which they explained as open court, but with limited space for those attending court: see eg Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056, CA); and that Ms Clibbery could not be prevented from handing over papers from the case to the press. That remains the law today; and it cannot be changed by FPRC and their FPR 2010.

 

What Dame Elizabeth held in Clibbery also explains by my use of the word ‘secret’ for private hearings. The rules say ‘private’. They mean, in terms of Clibbery ‘secret’; and that can only be changed by statute, or decision of a court higher than the Court of Appeal, namely the Supreme Court.

 

The bill is silent – so far – on the issue of open court injunction hearings (as far as I can see). Should it remain a matter for the common law, or should the authors of the bill be encouraged to be clear on the point? The open court principle is so much a creature of common law: I would leave it to the judges. And, till the bill is on the statute book, as I understand the law, FLA 1996 Pt 4 hearings should be in open court subject to any of the exceptions summarised by the list in CPR 1998 r 39.2(3).

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A draft domestic abuse bill

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Domestic abuse and domestic violence in 2019

 

Domestic abuse is endemic in UK society. The law’s response, in general terms, has consisted of sporadic police prosecutions, a Protection from Harassment Act 1997 (which is rarely used), uncoordinated remedies in family proceedings mostly under Family Law Act 1996 Part 4 (the non-molestation and the occupation order), and even prohibited steps orders in Children Act 1989 Part 2 proceedings. Each is governed by a different set of procedural rules. Different means of enforcement are employed according to the remedy and the order made by the court.

 

Views vary as to what is the legal definition of ‘domestic violence’ – still used by the Legal Aid Agency: see Legal Aid Sentencing and Punishment of Offenders Act 2012 – and ‘domestic abuse’, which is now defined by a family proceedings practice direction which deals only with children proceedings (yes, really): Family Procedure Rules 2010 PD12J.

 

Probably the only definition in law (as opposed to a Practice Direction) is still that of Lord Scarman in Davis v Johnson [1978] UKHL 1, [1979] AC 264 at 276 where of the then Domestic Violence and Matrimonial Proceedings Act 1976 he said: ‘I conclude that the mischief against which Parliament has legislated by … the Act [there was no definition in the 1976 Act] may be described in these terms: conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. But there is more to it than that. Homelessness can be as great a threat as physical violence to the security of a woman (or man) and her children….’. I suspect that definition – though it should be – is rarely cited. (Davis v Johnson remains important: it provides the continuing House of Lords definition of the stare decisis rule.)

 

A draft bill

 

On 21 January 2019 the Home Office and the Lord Chancellor published, to press acclaim (see eg Guardian and Observer their joint Transforming the Response to Domestic Abuse: Consultation Response and Draft Bill January 2019. The main features of the bill are:

 

  • A definition of ‘domestic abuse’ thus far absent from statute and the common law; and much wider and specific than before
  • A commissioner (‘tsar’ as the press call them?) who is to be funded by the government and be responsible for prevention of domestic abuse and for provision of support for those abused (Part 2)
  • New police powers and preventative notices and order (Part 3)
  • Protection by a court-appointed advocate for abuse by cross-examination of complainants (Part 4).

 

This post will concentrate on the first and last of these and then look at what rights issues may be engaged.

 

Domestic abuse

 

At present the most extensive definition of ‘domestic abuse’ is in tucked away Practice Direction 12J Child arrangements and contact orders: domestic abuse and harm. In LASPOA 2012 Sch 1 para 12(9) ‘domestic violence’ is defined as ‘any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other’.

 

The bill sets out the modern, and more extensive than any before, definition of ‘domestic abuse’. Prominence for, and a definition of, ‘domestic abuse’ is welcome (as is a modernisation of Lord Scarman’s definition: in strict precedence terms Lord Scarman comes before a Practice Direction). Physical abuse and threatening behaviour are in the definition; and so – crucially, I suspect – is ‘controlling or coercive behaviour’. ‘Economic abuse’ and ‘emotional or other abuse’ (echoing Lord Scarman, perhaps) are important developments in statutory thinking.

 

I will not attempt, here, a thesis on the differences between each of the three definitions. The Lord Chancellor will need – surely? – to align the statutory LASPOA definition with the wider and more realistic definition in the bill. Once the bill reaches the statute book – if no General Election intervenes, as happened with the last more modest Tory Lord Chancellor bill in early 2017 – this comparative exercise will be needed to show how the law has moved on since 1976; and to define what the law means in 2019.

 

‘Protection for victims and witnesses is court’

 

Under the heading, ‘protection for victims’ etc Part 4 introduces a new Part 4B to Matrimonial and Family Proceedings Act 1984 (generally regarded as the statute which still is kicked about by amendment for many forms of family proceedings). But first: it is to be hoped that the bill will not reach the statute book with ‘victims’ still in the title (as above). They are ‘alleged victims’. Anecdotal evidence exists that parties to family proceedings (mostly women) are concocting their allegations to help them to obtain legal aid. The ‘alleged’ handle (‘complainant’ would be more neutral and economical of space) is perhaps more important than ever.

 

The scheme under Part 4 is derived from Youth Justice and Criminal Evidence Act 1999. Yes in criminal trials the protection for witnesses has a life of nearly 20 years. Part 4 proposes that where an alleged victim risks being abused all over again in court by being cross-examined by her alleged abuser, the court can appoint an advocate to cross-examine the alleged victim as ‘representative’ of the alleged abuser (proposed s 31V(5); and see YJCEA 1999 s 38(4)). The ‘representation’ point will need careful review: s 31V(7) goes on to say that the representative ‘is not responsible to the party’, as in YJCEA 1999; but what does that mean if the advocate is the alleged abuser’s ‘representative’?

 

And yes, for any lawyer reading this post: there is provision for payment for lawyers for doing the cross-examination job, set out in proposed s 31W; but the detail of what is paid and how by the Lord Chancellor will be needed.

Domestic abuse in the family courts: how can proceedings be made more civilised? (2)

20160419_173301Domestic abuse: making proceedings less frightening

 

Family Court domestic abuse hearings can be dealt with in open court; but they are being heard in private (ie in secret). The public cannot see what is being done by family courts in its name, even though – on the same facts – if a violent man is prosecuted the criminal proceedings will be in open court (as explained in an earlier post here).

 

Yes, but if domestic abuse proceedings are held in open court will not that frighten the complainant, and risk perpetuating – but now openly in court – the abuse she complains of? This post explains that some procedures are available to protect complainants but they are rarely used by family courts or lawyers. Other such procedures are available in criminal proceedings, but are still not available to the Family Court to help domestic abuse complainants.

 

This post will assume that the complainant partner or spouse is (as is mostly the case) the mother. The father has been responsible for domestic abuse (violence, controlling behaviour and so on). The question of whether a hearing should be in open court was considered by me here; and what is meant by ‘domestic abuse’ as the law now stands was considered here).

 

In the first post I explained why I thought that in law domestic abuse proceedings should be in open court; just as a prosecution for a criminal offence arising from the same facts would be publicly dealt with. To help complainants there are a range of family courts procedural features which must also be considered (and which are I hope, being considered by Home Office reformers as I write):

 

  • 1 In all Family Court hearings the complainant partner’s (and perhaps a child’s) evidence is given face to face with the allegedly violent respondent, not for example by video link or pre-recorded evidence.
  • 2 Family courts still have no way of preventing violent or abusive partners from cross-examining their victims; where in criminal courts lawyers can be appointed to take on the cross-examination role.

 

Other fair ways to provide evidence

 

The conventional way for any case to be dealt with is for parties to proceedings and any witnesses to put their evidence in writing (a statement) to the court. That is their evidence in support of their case (evidence in chief). In practice judges like to hear a bit more from the parties and their witnesses. In some cases parties – parents, say, in a dispute about where a child should live – may be asked to say more about the background to the case and their feelings about their children and where they should live.

 

Giving evidence must be bad enough in any proceedings; but where you are being told that it is for you to convince the court that your individual claims are true (where your former partner disputes what you are saying) it must cause even more anxiety. And then for that evidence to be required to be given in front of the person who you say has abused you.

 

There are ways a person can give that evidence in chief by using evidence they have recorded with the police (called ABE (‘achieving best evidence’) evidence). ABE evidence is mostly obtained during initial police investigations. This is used routinely for a child’s evidence in care proceedings. In criminal proceedings it can also be used for evidence from adults. There is no reason in principle why it should not be used as evidence obtained from adults in family proceedings; but I suspect it rarely, if ever, is. And, by extension, there is no reason why adult ABE evidence cannot be used where solicitors – very carefully, and without leading questions – have recorded their client’s evidence. Is this ever done?

 

Next, evidence can be given in court by video-link where the complainant is in a different room from her former partner; but many courts do not have the equipment. How many lawyers challenge HMCTS to equip themselves properly so evidence can be given in this way? Evidence can be given from behind a screen so the complainant need not see her former partner.

 

All of these are there in the law – not just the rules – for parties to use. Might they help a frightened complainant to give evidence?

 

An advocate to ask questions for an allegedly abusive partner

 

A next procedural problem may arise. Suppose the former partner is unrepresented. He has no lawyer as many will not have. He will not be eligible for legal aid.

 

He is entitled to cross-examine the complainant and challenge her as to the truthfulness of what she has said to the court. That is truly to make her relive the abuse: a High Court judge has recently commented of a case ‘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.’ That judge had to sit through a hearing – children proceedings, not domestic abuse – and hear the woman being shredded by her former partner. To deny it would be to deny the partner a right to cross-examine which would be to deny a fundamental legal right.

 

It will not surprise readers of this post to find that criminal cases are well ahead – 20 years ahead – of family proceedings. In criminal court there is a scheme, which was copied for family proceedings in Prison and Courts Bill cl 47. Clause 47 was lost with the 2017 election and is under review in the Home Office – we are told – now.

 

The criminal scheme makes unlawful cross-examination in person of a witness by an accused in person in relation to certain charges, mostly sexual, of violence or against children. Thus, in criminal proceedings, an accused cannot then, by law, cross-examine the complainant. The court must then ‘invite’ the accused to instruct an advocate. If he refuses – he cannot, or will not pay, for example – the court must consider whether it is necessary for the witness ‘to be cross-examined by a legal representative appointed to represent the interests of the accused’. If that happens the court must then consider appointing an advocate to ask questions of the complainant (or accuser/witness in criminal proceedings).

 

None of this is going to make it any easier for a complainant to appear in court; but, whether or not proceedings are in open court, the procedural points considered in this post might at least make it a little less unpleasant for her than it must be in most cases now.

 

Why does the Family Court hear domestic abuse cases in private? (1)

20170722_161644Domestic abuse and children

Family Court domestic abuse hearings can be dealt with in open court; but they are being heard in secret. The public cannot see what is being done by family courts in its name, even though – on the same facts – if a violent man is prosecuted the criminal proceedings will be in open court. But, it is said, if proceedings are held in open court will not that frighten the complainant, and risk perpetuating – but now openly – the abuse she complains of? Some procedures are available to protect complainants but they are rarely used by family courts or lawyers. Other procedures are available in criminal proceedings, but are still not available to the Family Court. This and a second post examine these issues.

In her Guardian article, ‘Why do we separate the mother and child victims of domestic abuse’ (20 November 2018) Louise Tickle drew attention to the dire circumstances of mothers who lost their children because of domestic violence. This might be to the care of a local authority. A judge in care cases (she suggests it is quite frequent) ‘is told that the mother has “failed to prioritise her children’s needs over her own”. Social services know perfectly well that the abuse isn’t the victim’s fault – but, they tell the court, she’s the only protective factor in her kids’ lives. And she’s failing at it.’

 

This post will assume that the complainant partner or spouse is (as is mostly the case) a mother. The social services department, if involved, assumes that the children will remain with her. The father has been responsible for domestic abuse (violence, controlling behaviour and so on: a subject considered by me eg here and here (in relation to ‘open court hearings’)).

 

The treatment of a complainant parent in the way described by Louise Tickle way is, as the Guardian says, ‘grotesque’. And it is grotesque on a number of levels. This and a following post look will look at three features of the way domestic abuse cases are dealt with by the family courts, namely:

 

  • 1 Claims by mothers are being dealt with in private (or secret). This is probably unlawful. Criminal proceedings on the same domestic abuse facts are dealt with in open court; so that the ‘grotesque’ features described by Louise Tickle go unchecked.
  • 2 In all family courts hearings the complainant partner’s (and perhaps a child’s) evidence is given face to face with the allegedly violent respondent, not for example by video link or pre-recorded evidence.
  • 3 Family courts still have no way of preventing violent or abusive partners from cross-examining their victims; where in criminal courts lawyers can be appointed to take on the cross-examination role.

 

The first question, which this post seeks to address, is that of private family courts. (Meanwhile domestic abuse proceedings are the subject of Home Office consultation (previously discussed by me here).) The procedural matters which arise from the second two questions will be dealt with in a separate post.

 

At present the abused parent – in the procedure discussed by Louise Tickle – applies to the Family Court for a non-molestation order. If the complainant proves she has been ‘molested’ (ie made the subject of domestic abuse) she will have an injunctions (a court order which tells her former partner not to ‘molest’ her); and her former partner may also be excluded from their home (if he is still there). If he breaches the orders – ie is responsible for further abusive behaviour, which is proved – he may be sent to prison (though this is often not until after a number of successive complaints to the Family Court have been made by a wife/mother).

 

Meanwhile, says Louise Tickle, ‘children are being taken into care in unprecedented numbers, and losing their human right to live with their birth families because women are being blamed, rather than helped. Removing children from mothers suffering domestic abuse prioritises short-term safety over the much bigger win that would help keep a family physically and psychologically intact in the longer term.’

 

Open court or private hearings

 

So should cases be heard in open court? And if not, why not?

 

Domestic abuse proceedings are ‘family proceedings’ (ie they deal with issues which need to be resolved for a broken family). Family proceedings are dealt with in private (ie no one but the parties and court staff etc) can go into court. This privacy is required by the court rules. For good measure the rules say, in the part which deals with domestic abuse, ‘applications for an occupation order or non-molestation order will be in private’. But is this the law?

 

It is an old rule – what lawyers call ‘trite’ law – that a court rule cannot override the law. A court rule is not law. It can only dictate how the procedure which defines the law is to operate. Thus, the common law says that all court hearings shall be in open court, with certain long-standing exceptions (listed later).

 

In 1913 in a family law nullity case, where a husband had said he did not want everyone to know he was incapable of sex with his wife, the House of Lords said to him, ‘tough’; only a limited band of cases (and his was not one) could be heard privately (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417). In 1913 this limited band was as Lord Shaw said (echoing the words of other law lords), confined to three categories of case which are (adopting the terminology of the time): ‘The three exceptions which are acknowledged to the application of the rule prescribing the publicity of Courts of justice are, first, in suits affecting wards; secondly, in lunacy proceedings; and, thirdly, in those cases where secrecy, as, for instance, the secrecy of a process of manufacture or discovery or invention — trade secrets — is of the essence of the cause.’

 

To this list the common law in 2018 has added

 

  • Matters relating to national security
  • Proceedings concerning confidential information, where publicity would damage that confidentiality
  • An interim hearing where publicity would be unjust (eg the recent Philip Green Court of Appeal hearing and Peter Hain)

 

None of this list of six categories of case – which still represent the law over 100 years later – includes domestic abuse, whether in the Family Court or in any other court. But can the rule makers (who are entirely undemocratic) change the common law. No, they are not. Subsequent Supreme Court authority has confirmed that. Only another decision of the Supreme Court or a statute can change what is in the common law.

 

Why hearings in open court?

 

The reason for open court hearings has been explained by judges frequently. Recently in a case where the Guardian sought documents from a magistrates’ court extradition hearing (which the Court of Appeal agreed the Guardian should have) Lord Justice Toulson said of ‘open justice’: ‘The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes – who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process.’

 

The judge continued: ‘Jeremy Bentham explained this: “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.”’

 

And surely this statement from Jeremy Bentham is why, in principle and subject to protection for the complainants (to be discussed in the second post), that domestic abuse hearings should be in open court? They would be dealt with in open court before a jury on the same domestic abuse facts. Provided that the welfare and anonymity of any children involved is protected – as it is in the Crown Court – then the law (ie as distinct from the rules) is, I believe, that these proceedings should be in open court.

 

If judges and local authorities are behaving as Louise Tickle says they are; or if violent men are being dealt with leniently; and all this is being covered up or glossed over because of the secrecy of Family Court proceedings, then the way in which these cases are dealt with in the family courts should, surely, be seriously questioned. The first thing is to ask: does the law say these cases can be dealt with in private; and if not to open up domestic abuse courts to Benthamite publicity. This is what I believe the common law requires.

Legal aid and Convention rights in domestic violence committal proceedings

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Non-molestation orders and conviction for breach

 

Family Law Act 1996 Pt 4 is the direct descendant of Domestic Violence and Matrimonial Proceedings Act 1976 which enabled courts, for the first time, to exclude married parties from their homes; and it applied to unmarried parties as if they were married to one another (Davis v Johnson [1978] UKHL 1, [1979] AC 264). The legislation was recast in 1995 (then abandoned) but reintroduced the following year as Pt 4 of Family Law Act 1996 (FLA 1996). This included s 42 non-molestation orders ‘NMO’): where a complainant spouse or partner (A, mostly women) could ask the court to make B (their partner or spouse) the subject of an order. Non-molestation orders (FLA 1996 s 42) and the way they are dealt with by the courts – especially in terms of legal representation and legal aid – is the subject of this article

 

FLA 1996 s 42, as relevant, reads

 

42 Non-molestation orders

(1)   In this Part a ‘non-molestation order’ means an order containing either or both of the following provisions –

(a)provision prohibiting a person (‘the respondent’ [(B)]) from molesting another person [(A)] who is associated with the respondent;

(b)provision prohibiting [B] from molesting a relevant child [(C)].

(2) The court may make a non-molestation order –

(a)if an application for the order has been made (whether in other family proceedings or without any other family proceedings being instituted) by [A] with [B]; or

(b)if in any family proceedings to which the respondent is a party the court considers that the order should be made for the benefit of any other party to the proceedings or [C] even though no such application has been made.

 

Offence for breach of non-molestation order

 

Formerly, if there was evidence of violence the court must then attach a power of arrest and send a copy of the order to the local police station for the police to deal with if there was complaint as to alleged breach by B of the order. In 2004 Domestic Violence, Crime and Victims Act introduced (by s 1) a new FLA 1996 s 42A which made it a criminal offence, with effect from 1 July 2007, for B to breach a NMO:

 

42A Offence of breaching non-molestation order

(1)   A person [ie B] who without reasonable excuse does anything that he is prohibited from doing by a non-molestation order is guilty of an offence….

(5) A person guilty of an offence under this section is liable –

(a)on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;

(b)on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum, or both….

 

Alleged breaches of a NMO can result in an arrest, and – if the breach is proved – can result in punishment including imprisonment. That all looks relatively straightforward. It gets away from the unresolved problem, under the earlier scheme, of who was responsible for bringing B to court: the police or A herself. In clear terms it makes application under s 42A a matter for the police and CPS. The section also states that if a person has already been punished for contempt of court in civil proceedings, they cannot be convicted also (s 42A(3) and (4)).

 

Conviction on a substratum of findings to a civil standard of proof

 

Straightforward it may appear; but it may leave a real injustice for B. In civil proceedings, though A may have legal aid (Legal Aid Sentencing and Punishment of Offenders Act 2012 Sch 11-13, subject to A’s means) it is most unlikely that B will have legal aid.  B will therefore not have legal aid when the NMO is made. The NMO will be made on the basis of evidence proved to the civil standard – ‘balance of probabilities’.

 

If B is to be sent to prison – whether under a civil proceedings contempt application by A or as part of a police prosecution under s 42A – the standard of proof will be the criminal standard. But the conviction under s 42A will be based on a sub-stratum of findings of fact which have been established to a less exacting standard of proof. This lower standard of proof test at an earlier stage in financial relief proceedings, but which lead to judgment summons – ie committal proceedings – for alleged wilful failure to pay by Mr Prest – was considered by the Court of Appeal in Prest v Prest [2015] EWCA Civ 714 sub nom Prest v Prest (Judgment Summons: Appeal) [2016] 1 FLR 773.

 

McFarlane LJ considered earlier decisions of respectively of Mostyn J in Bhura v Bhura [2013] EWHC 3633 (Fam), [2013] 2 FLR 44 and of Thorpe LJ in the Court of Appeal in Mohan v Mohan [2013] EWCA Civ 586, [2014] 1 FLR 717. McFarlane LJ expressed ‘caution’ in dealing with findings made in earlier proceedings to a lower standard of proof:

 

[55]   The collective professional experience of Thorpe LJ and Mostyn J in these matters makes me most hesitant to express a contrary view, but my reason for advising caution concerning this set of observations is that they each suggest that, in the course of the criminal process that is the hearing of a judgment summons, it is simply sufficient to rely upon findings as to wealth made on the civil standard of proof in the original proceedings and that those findings, coupled with proof of non-payment, is sufficient to establish a ‘burden’ on the respondent which can only be discharged if he or she enters the witness box and proffers a credible explanation.

 

The court must be live to the fact that the later s 42A criminal proceedings may result in criminal penalties, even imprisonment. McFarlane LJ therefor set out minimum procedural requirements for this to be dealt with ((a) and (b) are the requirements for the judgment summons; in the case of non-molestation order the breaches of the order and perhaps relevant examples of the earlier allegations must be proved). McFarlane LJ therefore continued:

 

[55] … The facts of each case will differ, and the aim of Thorpe LJ and Mostyn J in envisaging a process which is straightforward and not onerous to the applicant is laudable, but at the end of the day this is a process which may result in the respondent serving a term of imprisonment and the court must be clear as to the following requirements, namely that:

(a)the fact that the respondent has or has had, since the date of the order or judgment, the means to pay the sum due must be proved to the criminal standard of proof;

(b)the fact that the respondent has refused or neglected, or refuses or neglects, to pay the sum due must also be proved to the criminal standard;

(c)the burden of proof is at all times on the applicant; and

(d)the respondent cannot be compelled to give evidence.

 

 

The dilemma of legal assistance was addressed by the Court of Appeal in relation to family law committal proceedings where breach of a civil order (committal under Debtors Act 1869 s 5 (judgment summons procedure)) was before the court in Mubarak v Mubarak [2001] 1 FLR 698. They considered an application for committal of Mr Mubarak (ie in the position of B) by the procedure which applied before Human Rights Act 1998. His counsel had argued, said Thorpe LJ:

 

[29] … that the judge did not sufficiently appreciate that in terms of Convention law, an application under the Debtors Act 1869 constituted a criminal proceeding. The judge went no further than to label it as a ‘hybrid’ proceeding. Mr Howard particularly relies on the decision in the case of Engel and Others v The Netherlands (No 1) (1979) 1 EHRR 647, which at 677, paras 80 and 81 very clearly classifies proceedings such as applications under the Debtors Act 1869 as criminal proceedings for Convention purposes.

 

The court agreed with Mr Mubarak. He should have the rights guaranteed by European Convention 1950 Art 6.3 which, for present purposes, is as follows:

 

3 Everyone charged with a criminal offence has the following minimum rights –

(a)to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;…

(c)to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d)to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;…

 

Engels v Netherlands: ‘legal assistance of his choosing’

 

Engel and Others v The Netherlands (No 1) (1976) 1 EHRR 647, at 677 paras 80 and 81 re European Convention 1950 Art 6(3)(c) concerned a case of military discipline and how it was dealt with in the Dutch Army. The criterion for deciding whether a man was subject to criminal proceedings, depended on the severity of the punishment. This was explained in each case as follows:

 

[85] The maximum penalty that the Supreme Military Court could pronounce consisted [of] three or four months’ committal to a disciplinary unit for Mr. de Wit, Mr. Dona and Mr. Schul…. The “charges” against Mr. de Wit, Mr. Dona and Mr. Schul did indeed come within the “criminal” sphere since their aim was the imposition of serious punishments involving deprivation of liberty…. The Supreme Military Court no doubt sentenced Mr. de Wit to twelve days’ aggravated arrest only, that is to say, to a penalty not occasioning deprivation of liberty (paragraph 62 above), but the final outcome of the appeal cannot diminish the importance of what was initially at stake. The Convention certainly did not compel the competent authorities to prosecute Mr. de Wit, Mr. Dona and Mr. Schul under the Military Penal Code before a court martial (paragraph 14 above), a solution which could have proved less advantageous for the applicants. The Convention did however oblige the authorities to afford them the guarantees of Article 6 (art. 6).

(b) On the existence of a “determination” of “civil rights”

[87] Article 6 (art. 6) proves less exacting for the determination of such rights than for the determination of “criminal charges”; for, while paragraph 1 (art. 6-1) applies to both matters, paragraphs 2 and 3 (art. 6-2, art. 6-3) protect only persons “charged with a criminal offence”. Since Mr. Dona and Mr. Schul were the subject of “criminal charges” (paragraph 85 in fine above), Article 6 (art. 6) applied to them in its entirety. The Court considers it superfluous to see whether paragraph 1 (art. 6-1) was relevant on a second ground, since the question is devoid of any practical interest (emphasis added).

 

As can be seen from the italicised passage, the punishment available to the court martial meant that in effect the offences were a ‘criminal charge’ and thus – as with Mubarak – then entitled the defendant to rights under Art 6.3.

 

Family Law Act 1996 ss 42 and 42A and European Convention 1950 Art 6.3

 

The question then arises: does the protection of Art 6.3 arise at the civil order – ie the FLA 1996 s 42 stage; or only at the criminal prosecution (s 42A) stage?

 

This was explained in Prest v Prest (above) where McFarlane LJ said of earlier findings made to a lower standard:

 

[62] … It is, indeed, necessary for a judge who is required, at a subsequent stage in proceedings, to make findings on the higher criminal standard of proof, to ensure that earlier findings made on the lower civil standard are not, even inadvertently, relied upon as substantive findings in the subsequent quasi criminal process.

 

And this is without, in this post, going into questions of issue estoppel. On the basis of the assertion of McFarlane LJ – which is entirely understandable – then it may be argued that such estoppel could only apply to facts found to a criminal standard of proof. Does it not mean in practice that the findings on which the NMO were made, if not accepted by B, must be re-opened once more at the committal stage?

 

If this is the case, then better surely to ensure that findings at the s 42 stage are – if not to the criminal standard at that stage – made with the requirements of Art 6(3) fully met so far as B is concerned. So far as possible findings can then be relied upon by the police and A if a s 42A prosecution becomes necessary? Allegations proved to a lower standard must not – on Prest principles – simply be recycled to punish B. The substratum of proof at the later stage may not do justice to B.

 

Legal aid and the non-molestation order

 

The question prior to this is: what is B’s entitlement to legal aid at the s 42 hearing stage? The position of the law in relation to exceptional case determinations under LASPOA 2012 s 10(3) was considered in my ‘Convention compliance of legal aid exceptional case determination’ . This was after R (Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 and concerned entitlement under Art 6(1): can a person like the immigration appellant Ms Gudanaviciene have a fair trial without legal aid. If not, exceptional case determination might apply. This principle might apply also to B if he is opposed by a represented former partner A.

 

But if the Engel and Art 6.3(c) points are correct then B should be entitled to legal aid at the prior – non-molestation order – Art 6.3(c) stage. It is likely to be an exceptional case determination decision, but it should be relatively straightforward.

 

 I acknowledge, with thanks, the brief comments of Vicky Ling and Simon Pugh, authors of LAG Legal Aid Handbook 2017/18, in my preparation of this post. All errors are mine.

Legal aid for domestic abuse: a legislative morass

20170407_1851062.jpg

Legal aid for ‘domestic violence’

 

Human rights legislation may enable a judge to tell the Minister of Justice to answe: are your new legal aid laws lawful? One of the ironies of the Tory legal aid legislation in 2012 (in force from April 2013) is that its complexity increases in inverse proportion to the extent it enables people to consult lawyers to explain it. The more complex the legal aid legislation becomes, the more difficult it is to get help just to explain what it means.

 

Take domestic abuse. Even that has three definitions. The law calls it ‘molestation’ – a wide spectrum of behaviour which a person (mostly women) should not have to put up with. It is also called ‘domestic abuse’: perhaps to cover a wider range of behaviour than ‘domestic violence’, which is what legal aid legislation calls it. ‘Molestation’ is the term which the judges must apply.

 

In 1976 Parliament had finally begun to recognise the difficulties of trapped unmarried women and their children – ‘battered wives’ – who could not exclude their violent partners (as could their married sisters) from their homes. A 1976 domestic violence Act was passed. In 1978, early in life the Act the House of Lords (now Supreme Court) considered a case which asked whether Parliament meant to allow an unmarried woman to force a man from a home in his name.

 

Lord Scarman and domestic violence

 

Lord Scarman (a great twentieth century judge) defined domestic violence as: ‘conduct by a family partner which puts at risk the security, or sense of security, of the other partner in the home. Physical violence, or the threat of it, is clearly within the mischief. [So too is] conduct which makes it impossible or intolerable, as in the present case, for the other partner, or the children, to remain at home’.

 

A recent case in the Court of Appeal has stressed that judges have deliberately not defined the term ‘molestation’. The principle applies that – like an elephant – molestation is difficult to define; but a family judge knows molestation when the judge sees it. And so, it might be thought, should be the law for legal aid; but…

 

So what of legal aid for the abused woman (it is mostly women)? The Ministry of Justice announced in early 2018 (https://www.gov.uk/government/news/changes-to-domestic-violence-evidence-requirements-come-into-effect) in an orgy of self-congratulation: ‘Changes to evidence requirements in private family law disputes have come into effect. There will no longer be a time limit on abuse evidence…’. Eventually the reader realises the press release is about legal aid which may be available to victims of domestic violence or child abuse. ‘To qualify, applicants must provide objective evidence of the abuse while their case is also subject to means and merits tests.’ This ‘objective evidence’ is in a list of 22 paragraphs which tries to do exactly what judges and parliament has said should not be done: it tries to define what the ‘domestic violence’ elephant is.

 

Now, imagine you are a single mother – Kath – with two small children. You have been forced to leave home by your partner, Nick. He applies to a court for contact with the children. You say has been abusive, and occasionally violent; though there is no physical evidence – there are no marks on you to show a doctor. It is, in Lord Scarman’s words ‘impossible or intolerable [for you] or the children, to remain at home’. You are scared at the prospect of seeing him in court.

 

Can you get legal aid? You can’t pay for a lawyer to tell you. You have no money. You have minimal state benefits, Nick is paying no maintenance for the children, and you have debts which are out of control. No one will lend you the money to pay for a medical report (required, in your case, by the new regulations), still less to pay for a lawyer (even if the lawyer does not charge).

 

You try to find out from the internet whether you can get help. If you are patient – and perhaps internet savvy – you will find a definition of ‘domestic violence’ in the modern legal aid legislation (alluringly called Legal Aid Sentencing and Punishment of Offenders Act 2012). The type of help you want is at para 11 of Sch 1 to that Act (in all, 154 sections and 24 Schedules).

 

What the Act does not tell Kath clearly is that to get legal aid you need to refer to three factors, each in separate unnamed regulations: first to find out if you earn too much money (Kath passes that test); next, whether your case has a prospect of success; and finally for the evidence for legal aid (the regs in question here)?

 

There are 21 forms of ‘evidence’ listed (some of which leave me baffled). Only the medical report applies to Kath. Without the report she fails at the first hurdle. And even if she can pay, the doctor can only repeat what Kath says. But her lawyer could do exactly the same when they complete Kath’s legal aid application. The medical report, if it does not document injuries, is a legal aid placebo, just something for the Legal Aid Agency to put on Kath’s file.

 

Legal aid laws, unlawful

 

Let us stand back from the legal aid legislation morass. European Convention 1950 (ie human rights) says Kath is entitled to a fair trial. Legal aid must be made available or that right may be impeded. Because she cannot pay for a medical report she cannot get the evidence required by the swish new regulations. Without that she must face her former partner alone in court. He may pay for a lawyer (he earned the income in the household); but it is he who, she says, has abused her.

 

There is a strong argument that the legal aid laws are unlawful. They are impenetrable to the reader who needs them. People like Kath and her children may be denied a fair trial and will suffer. This is where Human Rights Act 1998 comes in. If the laws are so complicated and you – having no means to pay for a lawyer – are denied legal aid, then how can you get to court for any trial at all (or defend yourself)? You cannot get the fair – or any – trial to which you are entitled.

 

So Mr Gauke: how legal are you laws when it comes to legal aid and domestic violence?

Domestic abuse assistance scheme

20170407_161350Domestic abuse: re-abuse in non-molestation order proceedings

 

The proposal set out here, arises from the issue identified by Women’s Aid and, in case law, by Roderic Wood J in H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 over ten years ago. The problem was – to an extent – intended to be provided for by a government bill (Prison and Courts Bill) lost with the 2017 election. As Roderic Wood pointed out, and as explained below, criminal proceedings provide protection from re-abuse in the witness box by a respondent/accused in person cross-examining the complainant or other witness (Youth Justice and Criminal Evidence Act 1999 (‘YJCEA 1999’) s 38(4)). Family proceedings do not provide the same, or any, protection.

 

The scheme proposed here can provide a prototype for an effective scheme for the government to run; and which will cover the problems identified by such judges as Lady Hale in the Supreme Court and Hayden and Peter Jackson JJ in the Family Division in for example cases like Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948, [2013] 2 AC 66, Re A (A Minor: Fact Finding; Unrepresented Party) [2017] EWHC 1195 (Fam), Hayden J and H v D (Appeal – Failure of Case Management) [2017] EWHC 1907 (Fam). In all of these cases the witness or party could have been assisted only if the bill’s ‘significant distress condition’ exemption in the bill applies.

 

Cross-examination in person of a complainant in family proceedings

 

YJCEA 1999 s 35 and 36 makes unlawful cross-examination in person of a witness by an accused in person in relation to certain charges, mostly sexual, of violence or against children. YJCEA 1999 s 37[1] is a catch-all section. It leaves it, finally, to the court to decide whether a direction should be made (s 37(2)) that such cross-examination should not be permitted, with the factors for the court to consider in making its decision in s 37(3).

 

If ss 35-7 apply – that an accused in person should not cross-examine in person a witness – then s 38 come into effect. The court must ‘invite’ the accused to instruct an advocate, failing which – no one can be compelled to have legal representation (European Convention 1950 Art 6.3(c) – ‘the court must consider whether it is necessary 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)). Then s 38(4) applies, and requires the court to appoint an advocate to cross-examine:

 

(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.

 

Advocate not responsible to the respondent

 

Section 38(5) provides that: ‘A person so appointed shall not be responsible to the accused.’ Provision is made under YJCEA 1999 s 40 for payment of ‘the proper fee or costs of a legal representative appointed under s 38(4)… and any expenses properly incurred in providing such a person with evidence or other material in connection with his appointment’ from public funds.

 

European Convention 1950 Art 6.3(d) gives a defendant in criminal proceedings the right to examine ‘witnesses against him’; though this need not be face to face (R v Lubemba & Ors [2014] EWCA (Crim) 2064, [2015] 1 WLR 157). It is likely that analogous rules in relation to Art 6.3 would apply in domestic abuse proceedings under Family Law Act 1996 Pt 4 in view of the seriousness of some of the applications which are equivalent to, and sometimes of the same facts as, criminal charges.[2]

 

Before the 2017 general election the government proposed a scheme similar to this as part of Prison and Courts Bill. Clause 47 of that bill proposed a variety of amendments to Matrimonial and Family Proceedings Act 1984 to cover the proposal. It was more limited than that needed (see below). It was lost when the election was called and has not so far been revived.

 

A voluntary scheme

 

For the time-being, to assist complainants and the courts, a scheme of free (pro bono) advocates could surely be set up. Financial assistance will be sought for the expenses of such advocates. Thus far, neither Resolution (a group of family lawyers, mostly solicitors) nor Family Law Bar Association will directly help. Both groups say the Government must take action, though FLBA may help with publicising any voluntary scheme to its members but no more.

 

If we wait for the government, especially for a Tory Government, we could wait for ever. Most new schemes to help people are started by volunteers. If we waited for the government there might be only fee-paying schools and few hospitals or libraries. Reforming Labour governments have helped to ease that: the NHS, state education and legal aid, freedom to roam and human rights; even YJCEA 1999 itself.

 

Resolution and FLBA probably think that a scheme proposed by the government (in line with YJ s 38(4) and funded as under s 40) will solve the problem; and that therefore we should wait till the Government get on with it as they promised a year ago. That is all very well. The Government are doing nothing at present; and judges such as Hayden and Peter Jackson JJ are having to make do as they watch witnesses and parties being further abused in cross-examination. In Re A (A Minor: Fact Finding; Unrepresented Party) (above), Hayden J explained the position:

 

[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.

 

Over ten years ago in H v L and R (above) Roderic Wood J pointed out the extent to which family proceedings lag behind criminal cases in protecting the vulnerable witness from re-abuse. He was lucky enough to secure help from the Attorney-General in that case. That will not happen again. Under this scheme a small number of advocates are being asked to help courts, if judges in the small number of cases which apply, ask for assistance for an unrepresented alleged abuser to cross-examine and alleged victim. This may also have the advantage of providing the Government with a prototype.

 

David Burrows

26 December 2017

 

[1](1)This section applies where, in a case where neither of sections 34 and 35 operates to prevent an accused in any criminal proceedings from cross-examining a witness in person—

(a)the prosecutor makes an application for the court to give a direction under this section in relation to the witness, or

(b)the court of its own motion raises the issue whether such a direction should be given.

(2)If it appears to the court—

(a)that the quality of evidence given by the witness on cross-examination—

(i)is likely to be diminished if the cross-examination (or further cross-examination) is conducted by the accused in person, and

(ii)would be likely to be improved if a direction were given under this section, and

(b)that it would not be contrary to the interests of justice to give such a direction,

the court may give a direction prohibiting the accused from cross-examining (or further cross-examining) the witness in person.

[2] In H v L and R (below) Roderic Wood J took the view that in civil proceedings a right to cross-examine existed thanks to Art 6.3(d): ‘[6]… Although, in principle, Art 6(3)(d) permits a defendant the right to cross-examine in person such a complainant, that particular right was circumscribed by s 34A of the Criminal Justice Act 1988, which forbids a defendant in a criminal trial from cross-examining a child witness personally. A further inhibition on such a practice was put in place by s 35 of the Youth Justice and Criminal Evidence Act 1999 (the 1999 Act).’