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)  EWHC 1195 (Fam), Hayden J and Re D (Appeal – Failure of Case Management)  EWHC 1907 (Fam), Peter Jackson J. Re A has drawn at least two professorial comments in the mainstream legal press: ‘Vulnerable witnesses’  Family Law 704 by Penny Cooper and ‘Abuse upon abuse’  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  and ) 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) EWCA Civ 543,  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)  UKSC 60,  1 FLR 948 (where the Supreme Court said a vulnerable witness must submit to challenge by a defendant of her allegations):
 … 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):
 …. [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 ), 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  EWHC 3099 (Fam)  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)  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 ) 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:
 … 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:
 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  UKHL 4,  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’  Legal Action at 6).