Best evidence of complainants and children

ABE evidence in family proceedings

 

In Y and E (Children) (Sexual Abuse Allegations) [2019] EWCA Civ 206 (21 February 2019) Baker LJ drew attention to the importance of ABE evidence gathering (per Achieving Best Evidence in Criminal Proceedings Guidance on interviewing victims and witnesses, and guidance on using special measures, March 2011, Ministry of Justice ). He confirmed that it applied to ‘civil’ (ie including family) as well as to criminal proceedings.

 

The important principles on which ABE evidence gathering are based and its importance in making available evidence from children and some vulnerable witnesses is discussed fully in my Children’s Views and Evidence by David Burrows, Bloomsbury Professional, 2017.

 

This morning the following brief exchange occurred on twitter between myself and a family law specialist barrister, Lucy Reed. There had been irritation expressed already on Twitter that judges state that they ‘prefer’ the evidence of one witness to another (that is their job, surely: to evaluate evidence, and evaluation inevitable involves comparison?). Lucy Reed joined in: ‘…Impression of a witness is a legitimate consideration, but always better to rely on contemporaneous documents / independent evidence than witness recall / impression where possible. In e.g. domestic abuse cases such material often scarce so impression may be more important…’

 

Solicitor’s recording ABE evidence

 

I raised the question – appropriate, as I thought: ‘Why aren’t solicitors who often are the first to see domestic abuse complainants trained to use ABE techniques to record early evidence?’ Came the prompt reply:

 

Lucy Reed‏ @Familoo

FollowingFollowing @Familoo

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Replying to @dbfamilylaw @PenelopeGibbs2 and 2 others

Because such conversations are privileged? Because they would be conflicted out?

12:33 AM – 4 Mar 2019

 

To which I replied (and this is the reason for this post):

1. David Burrows‏ @dbfamilylaw3m3 minutes ago

Replying to @Familoo @PenelopeGibbs2 and 2 others

Oh come on Lucy: we’re talking ‘evidence’ (the client’s story); the person taking the ABE statement shld be asking only questions. Only advice is privileged; and any confidentiality (lncl LPP) there may be, can be waived if it saves a client giving live evidence months later

 

‘Such conversations are privileged?’

 

Lucy’s short tweet was a question, but it implied an assumption as to the confidentiality (possibility even legal professional privilege ie legal advice privilege?) of such evidence. And ‘conflicted’ out? I am not quite sure what that can mean in context. I shall concentrate on the confidentiality (‘privilege’) point.

 

First, the confidentiality (if there is any) is that of the client (‘Charlie’): complainant or child. It can be waived by Charlie. And if Charlie knows that, from the start, she is being recorded for possible use in court proceedings any confidentiality is as near impliedly waived as can be imagined. That is to say, she has made it clear that she does not expect privacy in relation to court proceedings, for her statement.

 

Next, in this context privilege attaches to advice given by lawyers (fully explained in Privilege Privacy and Confidentiality in Family Proceedings by David Burrows, January 2019, Bloomsbury Professional). It does not attach to evidence given by a witness; though it will attach to what is said to obtain advice (R v Derby Magistrates’ Court exp B [1995] UKHL 18, [1996] 1 AC 487, [1996] 1 FLR 513).

 

If from the outset Charlie knows that what is said to her solicitor or the solicitor’s interviewer is evidence – and the solicitor does not chip in with advice, till after the recording – it is difficult to see how privilege (privacy for legal advice) could apply. Anyway, the question would only arise if later the client/witness decides not to waive any privilege there may have been.

 

ABE interviewing in civil proceedings: by solicitors and their staff

 

This is an important field for family lawyers in the case of complaints which do not justify criminal investigation by the police. If it is not properly understood or questioned – dismissed, at the threshold, even? – by family law barristers, it will have difficulty in ever developing.

 

I accept, there is the prior question of whether anything like this should develop.  I believe it should be looked at as a valuable project for development in this area of family law (for complainants and mature children, with appropriate intermediaries). Funds for training lawyers should be committed for it.

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

Domestic 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.