Dear Lord Chancellor – ‘domestic abuse’: time for a consistent approach in English law

A modern definition for Ministry of Justice

 

The Prison and Courts Bill clause 47 helpfully deals cross-examination of complainants as witnesses in family law domestic abuse proceedings.

 

The Sentencing Council have rephrased its proposed Guidance with the proposition that ‘domestic abuse’ replace ‘domestic violence’ as the criterion which – if accepted – should guide judges in sentencing of offenders http://www.sentencingcouncil.org.uk/wp-content/uploads/Intimidatory-offences-Consulation-Paper-WEB.pdf. A definition suggested by the draft Guidance is set out at the end of this letter. This is based on the Council’s view that the Guidance should be revised:

 

‘… to reflect the important changes in terminology, expert thinking and societal attitudes over the last ten years, in this important area of sentencing. ‘Domestic abuse’ is now the term used, rather than ‘domestic violence’, to reflect that both physical violence and controlling and coercive behaviour constitute abuse in domestic settings.’

 

Meanwhile family courts forms adhere to the old-fashioned ‘domestic violence’ terminology; and Legal Aid Sentencing and Punishment of Offenders Act 2012 Sch 1 para 12 adheres to the more restrictive, ‘domestic violence’:

 

Victims of domestic violence and family matters

12(1)Civil legal services provided to an adult (“A”) in relation to a matter arising out of a family relationship between A and another individual (“B”) where—

(a)there has been, or is a risk of, domestic violence between A and B, and

(b)A was, or is at risk of being, the victim of that domestic violence.

 

A definition of ‘domestic violence’ was added in 2013 by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013 http://www.legislation.gov.uk/uksi/2013/748/article/4/:
‘“domestic violence” means 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;’.

 

This sounds to me as if abuse is an aspect of violence – which it can be; but that a Legal Aid Agency decision-maker could say that the more extensive definition (ie domestic abuse) is not comprised always in the more restrictive (ie domestic violence).

 

The wider spectrum of domestic abuse is applied to children and ‘vulnerable’ adults (LASPOA 2012 Sch 1 para 3); but not to others in a family relationship. Is that a fair assumption?

 

Time for reform: Prison and Courts Bill

 

Is it not time to amend the narrower, unfair (to the person abused) and out-moded definition – namely ‘domestic violence’ – in legal aid legislation, family law forms and in any other circumstances? The wider ‘domestic abuse’ would be applied always for grant of legal aid? You would have one consistent set of terminology for all relevant circumstances.

 

If you agree is not the Prison and Courts Bill a good opportunity to do this?

 

Yours sincerely

 

 

 

David Burrows

 

 

Scope of the [Sentencing Council] guideline

 

  1. This guideline identifies the principles relevant to the sentencing of cases involving domestic abuse. There is no specific offence of domestic abuse, it is a general term describing a range of violent and/or controlling or coercive behaviour.

 

  1. A useful, but not statutory, definition of domestic abuse used by the Government is:

 

Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. The abuse can encompass, but is not limited to: psychological, physical, sexual, financial, or emotional.

 

  1. Controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capabilities for personal gain, depriving them of the means needed for independence, resistance and escape and/or regulating their everyday behaviour.

 

  1. Coercive behaviour is an act or pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim.

 

  1. The Government definition includes so called ‘honour’ based abuse, such as female genital mutilation (FGM) and forced marriage. Domestic abuse occurs amongst men and women, people of all ethnicities, sexualities, ages, disabilities, immigration status, religion or beliefs, and socio-economic backgrounds. Care should be taken to avoid stereotypical assumptions regarding domestic abuse.
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Legal aid statutory charge and care proceedings

No application to family courts proceedings

 

Following on from HRA damages and legal aid: a Pyrrhic exercise?  a narrow question has arisen over whether the Family Court has power to award damages. More to the point: has the Family Court administration got power to permit issue of ‘civil proceedings’ under Human Rights Act 1998 (‘HRA’); and can family judges award damages?

 

These questions arise immediately where parents or children have been pursuing claims for HRA damages arising from local authority claims, often in relation to care proceedings in the family courts. In the above article I have expressed doubts as to whether this is correct. It is important because in some cases the Legal Aid Agency (‘LAA’) are simply mopping up damages received by parents or their children and setting it against the legal aid in the care proceedings. If they have been allowed to do this by children’s, or parents’, lawyers, I believe this to be unlawful; and if I am right, the LAA should pay the money back.

 

The issue arises from Human Rights Act 1998 (‘HRA’) s 8, as relevant for present purposes, says:

 

8 Judicial remedies

(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.

 

Most people reading that would probably say that its ordinary English words mean that in the case of an ‘unlawful’ act (which refers back to maladministration by a public authority under HRA ss 6 and 7 under European Convention 1950) a court can make an appropriate order ‘within its powers’. If it chooses to make an order for damages the court so doing must have ‘power to award damages… in civil proceedings’ (s 8(2)).

 

At the time of the coming into operation of HRA a family law text-book Family Law and the Human Rights Act 1998 (Swindells et al, 1999) considered s 8(1) and (2) to mean:

 

2.20  A damages award can be made only by a court with jurisdiction to do so (HRA 1998 s 8(2)). As it is doubtful that family courts have such jurisdiction, if damages are sought the claim will have to be made in the civil courts.

 

6.70  … The family courts do not in any event have any power to make awards of damages even were they to be persuaded that Convention rights had been violated and damage suffered as a result.

 

I am not aware of any judge saying in terms that that was wrong; though a lot of HRA water has flowed under the bridge since then. I know of no family law case which deals with the meaning of s 8(2) (I have searched the FLR assisted search facility on HRA s 8).

 

Application in family proceedings

 

First, what proceedings can be issued in family courts? In the family courts the form of court proceedings is defined by Courts Act 2003 s 75, which takes you to Matrimonial and Family Proceedings Act 1984 and, eventually, you arrive at Senior Courts Act 1981 Sch 1 para 3. This defines the list of forms of proceedings – ‘family business’ – which can be issued in the courts under Family Procedure Rules 2010. There is no mention of Human Rights Act 1998 claims in Sch 1.

 

That is why, for example, you cannot claim a share in your (unmarried) partner’s property, if it is in his or her sole name (Trusts of Land and Appointment of Trustees Act 1996 s 14), or claim against your dead parent’s or spouse’s property (if they don’t leave you enough: Inheritance (Provision for Family and Dependants) Act 1975). All family lawyers know that: you have to issue ‘civil proceedings’ – that word again – under CPR 1998. And that is so even if, in the case of your partner’s property s/he is parent of your child, and you are making a claim for property for the child in FPR 2010 proceedings under Children Act 1989 Sch 1.

 

In short, just because it is a family matter – suing your grand-mother for specific performance of an agreement or making a claim against your boy-friend for property in his name – does not mean you can apply in the family courts if your case does not come within Sch 1. And it may be good practice form a legal aid point of view if your lawyer does not attempt to do so (see below).

 

Family courts are quite used to case managing cases – at least in theory – so that CPR 1998 (TOLATA proceedings) are dealt with alongside FPR 2010 proceedings (and see eg bankruptcy court and money proceedings: Arif v Zar and anor [2012] EWCA Civ 986). They can also manage care cases so that issues are split: threshold in care proceedings (CA 1989 s 31(2)) from welfare issues if the care threshold is achieved by the local authority applicant.

 

So why not split and case manage (as need be) the separate issues which arise on a FPR 2010 care case; and a HRA damages CPR 1998 ‘civil proceedings’ care case? The answer is, in my view: none at all. It follows the law (always a good idea for a judge to follow the law). And – a quite separate point – it is certainly good practice from the legal aid point of view (see separate article of Avoiding the legal aid statutory charge).

 

Order in family proceedings

 

It is said that Matrimonial and Family Proceedings Act 1984 s 31E helps. This provides, as relevant here:

 

31E Family court has High Court and county court powers

(1)   In any proceedings in the family court, the court may make any order –

(a)which could be made by the High Court if the proceedings were in the High Court, or

(b)which could be made by the county court if the proceedings were in the county court.

(2) In its application to a power of the High Court to issue a writ directed to an enforcement officer, subsection (1)(a) gives the family court power to issue a warrant, directed to an officer of the family court, containing provision corresponding to any that might be contained in the writ.

(3) Subsection (1) is subject to section 38(3) of the County Courts Act 1984.

 

Subsection (3) means that the Family Court, like the County Court, cannot make orders on an application for judicial review (which may prove relevant in a HRA context; but that is for another day).

 

MFPA 1984 s 31E is in a long line of legislation which endows lesser courts with the powers of higher (or, in this case, parallel) courts, as does County Courts Act 1984 s 38. Section 31E is based on s 38 (and see County Court Remedies Regulations 2014). Traditionally s 38 was relied on to enable county courts (including those then dealing with family proceedings) to make inherent jurisdiction orders (eg injunctions) which they did not have; and, for example, it was used to enable district judge’s to order that they should sign documents (Senior Courts Act 1981 s 39).

 

That is s 31E enables orders to be made at the conclusion of, or during the course of (interim orders), proceedings. It does not add to the jurisdiction defined by SCA 1981 Sch 1; for if it did, family lawyers would use family courts for any application (eg constructive trust, breach of contract and s 14 proceedings, as you can do in county courts); suing for damages for personal injuries (which county courts certainly have powers to order) and so on. Plainly this cannot happen. That would be massively to extend the jurisdiction under SCA 1981 Sch 1 which is not what Parliament envisaged.

 

‘Power to award damages… in civil proceedings’

 

So what does HRA s 8(2) and its reference to ‘civil proceedings’ mean? In 1997-8 Parliament deliberately decided to treat civil and ‘family’ proceedings separately. Civil Procedure Act 1997 (neither does that Act nor HRA 1998 define ‘civil proceedings’) set up the machinery for CPR 1998.

 

The term ‘civil proceedings’, for rule-making purposes, was specifically defined to exclude family proceedings.  CPR 1998 could not be used for family proceedings as defined (now) by Courts Act 2003 s 75 (CPR 1998 r 2.1(2)). Section 75 sets up the machinery for making family proceedings rules separate from CPR 1998, which eventually lead to FPR 2010 (cf Family Proceedings Rules 1991 which were subject to the provisions of the then civil proceedings rules). In HRA s 8(2) the reference to ‘civil proceedings’ is likely to be the post 1997-8 definition, rather than the term (ie most non-criminal proceedings) which operated till then. On that logic, proceedings under s 8(2) as ‘civil proceedings’, were intended by Parliament to be issued under CPR 1998, not as or within family proceedings.

 

The reference to Courts Act 2003 s 75, at s 75(3), takes the reader to MFPA 1984 s 32 (which defines ‘family business’) which is defined by SCA 1981 s 61 and Sch 1 para 3 (as explained above). Para 3 makes no reference to claims under s 8(1), which is unsurprising since damages claims are not always immediately associated with ‘family business’ – there are many other forms of proceedings which may lead to a claim under s 8(2). It seems likely that s 8(2) did not assume that family courts would adopt a ‘power to award damages’; and that is the view taken by text-book writers at the time of introduction of HRA 1998 (eg Swindells, above).

 

‘Separate proceedings’ in judicial review: Anufrijeva

 

Claims should be by judicial review – which cannot be in the county courts (see CCA 1984 s 38(3) above. This is explained by the Court of Appeal in Anufrijeva and anor v Southwark London Borough Council [2003] EWCA Civ (judgment: 16 October 2003). This is by CPR 1998 Pt 54 (which is not difficult). This will be in writing, and – in care proceedings – based on facts already found in family courts. Issue estoppel will mostly narrow the factual proof. This need not be a difficult exercise, not one which is beyond the wit of most judges to case manage. From a legal aid point of view it is very important. There will then be no doubt that the legal aid statutory charge cannot apply to damages.

Abuse by cross-examination in family courts

 

Law reform, Women’s Aid and a Parliamentary domestic violence group

 

The All-Party Parliamentary Group report on domestic violence, Domestic Abuse, Child Contact and the Family Courts All-Party Parliamentary Group on Domestic Violence (APPG report) of October 2016  (https://www.naccc.org.uk/downloads/NewsItems/APPG_Inquiry_report_Domestic_Abuse_Child_Contact_and_the_Family_Court.pdf) deals with domestic abuse and with contact in the context of family cases where contact is ordered. This article deals only with domestic abuse in the context of family court proceedings, and in particular the further abuse which may be inflicted by cross-examination of the complainant (A) by the alleged abuser (B); and, perhaps to a lesser extent, where A – as a party – may wish to cross-examine B. This is a subject covered extensively on this site already (and parts of previous detail are repeated here). This takes the subject further by reference to the APPG report and concludes with specific suggestions for law reform, which teh Justice Secretary might like to consider.

 

The issue is described by the APPG report (page 4):

 

Women and children’s experiences of domestic abuse do not end when the relationship with their abuser ends…. Many women report feeling re-victimised and re-traumatised through the family court process, they can find it difficult to access formal legal advice and representation, and now routinely end up being cross-examined by their abuser when they are representing themselves in court as Litigants in Person.

 

The report recommends ‘special measures’ which in family courts terms are proposed to include ‘dedicated safe waiting rooms for vulnerable witnesses and separate entrance and exit times [for them in all] family courts’. These measures could go much wider, especially – as discussed here – in relation to Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) and as highlighted by Lady Hale in the Supreme Court in Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485 at §28 (and see https://dbfamilylaw.wordpress.com/2017/01/09/vulnerable-witnesses-and-children-human-rights-and-legal-aid/).

 

Where domestic violence and court proceedings there are therefore two immediate issues:

 

  • To ensure that it is not necessary for A to be submitted to cross-examination by B; and
  • If A wishes to cross-examine B, and she does not have legal representation, to ensure that cross-examination for her is carried out fairly by someone else who is suitably qualified.

 

This article therefore proposes:

 

  • Ways in which some funded help for A (under (1) and (2) above) can be provided as the law now stands; and
  • Specifically to draft a suggested law reform which can be set out as a Schedule to an existing Bill and added as an amendment to Family Law Act 1996 Part 4 (which deals with the present statute law on domestic violence).

 

Family proceedings: lagging behind criminal proceedings

 

On 20 December 2016 the Ministry of Justice published a statement by Sir James Munby, President of the Family Division which articulated ‘the pressing need to reform the way in which vulnerable people give evidence in family proceedings’. The need of the abused party (A) was highlighted in H v L and R [2006] EWHC 3099 (Fam) where a father (ie B) wanted to cross-examine his child’s abused mother. The judge, Roderic Wood J, ‘invited urgent attention’ (§[25]) to judges being given power to appoint a publicly funded advocate in criminal proceedings as under YJCEA 1999 s 38(4). 10 years later, beyond a review urged by the Guardian and Women’s Aid and ordered by the Justice Secretary, Lynn Truss, nothing has happened.

 

In criminal proceedings, a witness in A’s position is protected (YJCEA 1999 Part 2 Ch II). The court may – sometimes must, by law – provide protection by imposing an advocate on the unrepresented B (who would otherwise have the right to cross-examine: European Convention 1950 Art 6.3(c)) to cross-examine a victim (s 38(4); and see Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) at Ch 8 http://www.jordanpublishing.co.uk/practice-areas/family/publications/evidence-in-family-proceedings#). The court appointed advocate has no ‘responsibility’ to the accused (s 38(5); Criminal Procedure Rules 2015 Part 23). The advocate is paid from public funds (s 40).

 

Complainant: a party to proceedings

 

Criminal proceedings in this area are procedurally different from civil proceedings, and especially family proceedings; though both are capable of dealing with the same set of facts, though with different results. In criminal proceedings Crown Prosecution Service takes proceedings. Though A is the complainant, she is a witness so there will always be a CPS advocate to deal with her evidence in court and to cross-examine B. In family proceedings she is, by definition, a party. She still gives evidence and may be cross-examined (as in (1) above, considered more below); but, if unrepresented, she is responsible for running the case and for cross-examining B (ie (2) above).

 

So if she may not best be able to deal with cross-examination of B, because intimidated or for all the reasons she may want an advocate appointed, then already – that is, as the law now stands – Matrimonial and Family Proceedings Act 1984 s 31G(6) says:

 

(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.

 

So long as a judge accepts that A is ‘unable to… cross-examine’ B – and in the context a judge should need little persuasion of that – then s 31G(6) applies and the judge will ‘ascertain’ from A matters which need to be put to B and will question him him/herself in terms which are in A’s ‘interests’.

 

Section 31G(6) has been the subject of a small amount of case law; but, for the avoidance of doubt in the area defined by (2), a clear steer (ie a finding) by the common law (ie by a High Court judge in a decided case) on the subject as soon as possible would be helpful.

 

Cross-examination of the complainant

 

It is the situation at (1) above which calls for extra care, and for public funding. Formal parliamentary law reform would be infinitely preferable, to put the issue beyond doubt. However, if A is legally aided then it is suggested here that help along the lines of YJCEA 1999 Ch 2, and especially ss 38(4) and 40, could be available and be treated analogically in family proceedings.

 

Chapter 2 starts the way it means to go on. It leads with s 34 which reads:

 

No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either—

(a)in connection with that offence, or

(b)in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.

 

Chapter 2, as its heading asserts, is designed to provide ‘Protection of witnesses from cross-examination by accused in person’. YJCEA 1999 s 38(4) deals specifically with cross-examination of a defence witness, which is prohibited as far as the defendant personally is concerned. It provides that an advocate ‘must’ be appointed to cross-examine to protect a victim, where the various forms of abusive situation in ss 34-36 apply:

 

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

 

YJCEA 1999 s 38(5) says that the advocate is ‘not responsible’ to the defendant, which must be taken to mean that, as for any advocate, his/her duty is to the court and that he must, in fairness to both complainant and the defendant, do his/her best in objective terms to secure for both a fair trial; but s/he has no client and takes direction from the court. Procedure for appointment is set out in Criminal Procedure Rules 2015 (‘CrPR 2015’) Part 23.

 

Payment is by public funds. YJCEA 1999 s 40 (as an insertion to Prosecution of Offences Act 1985 s 19(3)) says – with no fuss, and under the heading ‘Funding of defence representation’:

 

… To cover the proper fee or costs of a legal representative appointed under section 38(4) of the Youth Justice and Criminal Evidence Act 1999 (defence representation for purposes of cross-examination) and any expenses properly incurred in providing such a person with evidence or other material in connection with his appointment.

 

Funding of help for the complainant: legal aid and Human Rights Act 1998 factors

 

Sir James’s 30 December 2016 statement continues: judges cannot act because ‘it requires primary legislation and would involve public expenditure’. Supreme Court authority doubts this. Much can be done by judges under the common law says Lady Hale (Re W (Children) (Abuse: Oral Evidence) (above) (a case involving evidence from a child witness) the family courts can act (italics added):

 

[28] There are things that the [family] court can do but they are not things that it is used to doing at present. It is not limited by the usual courtroom procedures or to applying the special measures by analogy…. One possibility is an early video’d cross examination…. Another is cross-examination via video link [or] putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.

 

If B’s cross-examination genuinely ‘diminishes’ (see YJCEA 1999 s 16) A’s evidence and denies her a fair trial, her European Convention 1950 Art 6(1) rights are engaged. If legal aid is not available (ie the case is outside LASPOA 2012 Sch 1 paras 11-13 (domestic violence etc)), A should apply for exceptional case funding (LASPOA 2012 s10(3); R (Gudanaviciene) v [LAA] [2014] EWCA Civ 1622). Resources questions can be addressed under the present law, whatever Sir James and Truss’s review say.

 

Common law and a fair trial

 

Witness/party protection and fair trial rights depend on:

 

  • Special measures (equivalent to YJCEA 1999 ss23-28 and per Re W [28] (above)) applicable in family proceedings; and
  • A has a right to a fair trial; and to give evidence of a quality which is not ‘diminished’ (akin to YJCEA 1999 s16).

 

If the above is right A must be protected by special measures such as a ‘s 38(4)’ equivalent advocate: is her trial fair without this? If the answer is ‘no’ then A’s fair trial rights are engaged, and LASPOA 2012 s 10(3) may apply. This article argues that protection for A can be funded – now – from an existing legal aid certificate (Sch 1 paras 11-13) and pro-active common law case management. And, it must be stressed: this is not a plea for Presidential ‘practice guidance’ or a ‘tool-kit’. It is a straight-forward urging – with Lady Hale’s Re W words in mind – to a High Court judge to order appointment to be funded from a civil legal services certificate (the that judge is willing to find it within his/her inherent jurisdiction). It is a straight question of whether the common law is willing to move in that direction.

 

If para 11-13 legal aid is not available, then if A’s evidence is ‘diminished’ (within the terms of YJCEA 1999 s 16), and if a fair trial is thereby threatened, European Convention 1950 Art 6(1) is engaged. LASPOA 2012 s 10(3) may bite. Either way, can YJCEA 1999 s 38(4) be applied by analogy in family proceedings? And, if so, can it be funded by legal aid?

 

With CrPR 2015 Part 23, s 38(4) provides a model for court advocate appointment. B has a fair trial: his ‘accuser’ is professionally cross-examined. The following argument can be tested in the Family Division, alongside Lady Hale’s Re W§[28] comments:

 

  • a High Court judge has inherent jurisdiction to regulate the court’s procedure;
  • justice would be promoted (perhaps only made possible: operation of YJCEA 1999 Part 2 readily attests to this) by a ‘s38(4)’ appointment
  • this assistance cannot now be funded direct from public funds (cf YJCEA 1999 s40)
  • with pro-active case management this can be done on legal aid certificate (either under a conventional Sch 1, or a s10(3), certificate).

 

Law reform and public funding: the court appointed advocate

 

Finally, what about statute law reform? It will be assumed, first, that s 31G(6) does what it is said to do above, but common law clarity would be helpful.

 

This leaves the court-appointed advocate, the funding of that advocate and amendments to the rules to cover that. For example, drawing directly on YJCEA 1999 ss 34, 38(4) and 40 amendments to Family Law Act 1996 along the lines of the following could be passed in Parliament:

 

  • In the circumstances set out in paragraph (2) no person (B) who is the subject of an application under this Act may in any family proceedings cross-examine in person a party (A) to those proceedings who is the complainant in connection
  1. with that application; or
  2. in any other proceedings in which the allegations the subject of the application arise [ie to cover issues also in eg contact proceedings].

 

  • The circumstances referred to in paragraph (1) are that A has made an application under this Act and has requested the judge that an appointment be made as at paragraph (3) below.

 

  • If application is made under paragraph (2) for A to be cross-examined other than by B the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused.

 

  • The person appointed at paragraph (3) is not responsible to B

 

  • To cover the proper fee or costs of a legal representative appointed under Family Law Act 1996 s ## [ie (3) above] (respondent’s representation for purposes of cross-examination) and any expenses properly incurred in providing such a person with evidence or other material in connection with his or her appointment [shall be met from public funds].

 

This will need tightening up a lot; but it represents a start….

Vulnerable witnesses and children: human rights and legal aid

Cross-examination of victims of domestic violence

 

Women’s Aid and the Guardian are concerned about the lack of protection for victims of domestic violence in family courts where their alleged abuser is permitted to cross-examine them. This article develops some of the ideas touched on in my earlier Vulnerable witnesses, parties and children in family proceedings at https://dbfamilylaw.wordpress.com/2017/01/05/vulnerable-witnesses-parties-and-children-in-family-proceedings/. The wider problems of vulnerable witnesses and of children in family cases go much deeper than this, as will be explained. The question to be addressed here is: can these problems be helped by legal aid under the existing statute and common law? Sir James Munby P (or his Ministry of Justice draftsperson) thinks not. I think he – or the Ministry – may be wrong.

 

On 20 December 2016 the Ministry of Justice published a statement by Sir James which articulated ‘the pressing need to reform the way in which vulnerable people give evidence in family proceedings’. Family justice ‘lags woefully behind the criminal justice system’, he said. The problem identified by Women’s Aid arises where an alleged abuser (‘B’: generally male, though not invariably) personally cross-examines the victim (‘A’) in (say) domestic violence proceedings; including, as the Guardian says, by ‘tormenting’ her in court.

 

Under press pressure the Justice Secretary, Lynn Truss, has ordered a review. In reality the problems, partly those of the women in A’s position, go much deeper than Truss’s review. In truth they are a feature of the unmet legal need faced by the real shortcomings in our family just system when it comes to protection of child witnesses and other vulnerable witnesses (as identified eg by Amnesty International: see eg Cuts that hurt (2016) Amnesty International (https://www.amnesty.org/en/documents/eur45/4936/2016/en/)).

 

‘Urgent attention’ judicially requested 10 years ago

 

The problem identified above is precisely illustrated by the facts in H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162 where an alleged abuser (ie B) wanted to cross-examine the abused mother (A) of his child. Roderic Wood J said, in a judgment given over 10 years ago (7 December 2007):


[25]   I would invite urgent attention as to creating a new statutory provision which provides for representation in such circumstances, analogous to the existing statutory framework governing criminal proceedings as set out in the 1999 Act. Such a statutory provision should also provide that the costs of making available to the court an advocate should fall on public funds. I can see no distinction in policy terms between the criminal and the civil process.

 

The same can apply, in exactly the same way, to child or young adult victims of alleged abuse (see eg Re A (Sexual Abuse: Disclosure) [2012] UKSC 60). H v L and Re A are 10 and five years old respectively; yet the problem subsists. Judges think they are powerless to help, lawyers – it seems – can see no way through and the Ministry of Justice is impervious to the problems. This article question whether, in law, the judges are as powerless as they and the President seems to think.

 

Child and vulnerable witness protection in criminal proceedings

 

In criminal proceedings in the parallel situation, the child or other vulnerable witness (eg a party to alleged domestic abuse) cannot be put in this ‘tormented’ position. In relation to a child, s/he has automatic protection by the court having power to impose and order payment from public funds of an advocate to cross-examine a victim. YJCEA 1999 Part 2 Ch II (ss 34-40) is entitled ‘Protection of witnesses from cross-examination by accused in person’. By analogy in family proceedings this can be taken to include one allegedly abusive party of another, of a witness (as in Re A (above) or of a child. The tone is set by s 34 (a subject more widely explained by Lady Hale in R (D (a minor)) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393; and see Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) at Chs 8 and 19):

 

No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either—

(a)in connection with that offence, or

(b)in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.

 

YJCEA 1999 Part 1 Ch II widens the spectrum of offences to deal with other forms of abusive allegations. Section 38(4) provides that and advocate ‘must’ be appointed to cross examine (as mentioned in the otherwise unhelpful Re K & H (Children) [2015] EWCA Civ 543)) to protect a victim, where ss 34-36 apply:

 

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

 

The advocate has no ‘responsibility’ to the accused (s 38(5)). Procedure for appointment, which could be adapted for use in family courts is fully set out in Criminal Procedure Rules 2015 (‘CrPR 2015’) Part 23.

 

Resources implications; legal aid

 

Sir James’s statement (or the MoJ draftsperson) continues: the family courts judiciary cannot act because ‘it requires primary legislation and would involve public expenditure. It is therefore a matter for ministers’. This is unlikely to be the law. Yes, public expenditure is involved; but much of this can be provided under judges existing common law and statutory powers (including use of YJCEA 1999 ‘special measures’ by analogy) and with full use being made of exceptional case funding (LASPOA 2012 s 10(3))).

 

In Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12 (a case involving evidence from a child witness) Lady Hale spoke of existing measures and of family court judges’ reticence to use them (emphasis added):

 

[28] The family court will have to be realistic in evaluating how effective it can be in maximising the advantage while minimising the harm. There are things that the court can do but they are not things that it is used to doing at present. It is not limited by the usual courtroom procedures or to applying the special measures by analogy…. One possibility is an early video’d cross examination…. Another is cross-examination via video link [or] putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.

 

Scale of the problem in family courts

 

The problem is much wider than the Justice Secretary seems to understand. In 2014 a working group was set up by Sir James to consider the evidence of vulnerable witnesses where this might be ‘diminished’ by their attendance in court as witnesses, parties or other participants in family proceedings (considered further in http://www.familylaw.co.uk/news_and_comment/family-proceedings-common-law-and-vulnerable-witnesses).

 

The group produced draft rules in mid-2015. The draft took many leads from criminal proceedings under Youth Justice and Criminal Evidence Act 1999 (special measures to help children and vulnerable witnesses). Still no new rules have been formalised. The draft covers children and vulnerable individuals. It includes – but this is only one element – provision for those who are subjected to further abuse by being cross-examined in person by their alleged abuser. Victims include one of a former couple; a child who gives evidence proceedings; or any other witness in family proceedings.

 

The Ministry is aware that the rules amendments have resources implications; but so too have the 1999 adjustments in criminal proceedings. In family proceedings legal aid could be used in European Convention 1950 exceptional case funding for vulnerable parties and children; and many of the criminal proceedings measures are already available but not used, in family proceedings as Lady Hale has pointed out in Supreme Court (Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948 at §[28]).

 

Exceptional case funding

 

Legal aid may be available as an ‘exceptional case’ (LASPOA 2012 s 10(1)) where funding is not otherwise available under the relatively narrow range of representation under the main civil legal aid provisions of LASPOA 2012 Part 1 Sch 1 (available civil legal services). Section 10(2) then goes on to provide that is the LAA considers the case appropriate for an exceptional case determination and an applicant is available on means, civil legal services can be provided. Section 10(3) defines an ‘exceptional case’:

 

(3)For the purposes of subsection (2), an exceptional case determination is a determination—

(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of—

(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or

(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or

(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

 

In R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 the Court of Appeal made clear that ‘Exceptionality [under s 10(3)] is not a test’ (§[29]), it is a descriptor of the legal aid to be granted. The court (at §§[31]-34]) explained how the Legal Aid Agency should treat and assess an application for exceptional case funding.

 

Resolution of resources questions

 

YJCEA 1999 ss 16 and 17 create three categories of witness who may be eligible for assistance by a special measures direction. A witness under 17 is automatically entitled to assistance (s 16(1)(a)). Secondly, s 16(1)(b) deals with incapacitated witnesses (as defined in s 16(2)); and  thirdly, s 17(1) with witnesses effected by “fear or distress”. In the last two cases the court must be satisfied that any evidence “is likely to be diminished” by the circumstances of evidence being given. In what follows “witness” by analogy will include a party in family proceedings.

 

If a witness comes within one of the categories in YJCEA 1999 ss 16 or 17 s/he may be eligible for special measures assistance (YJCEA 1999 ss 23-30), including: preventing a witness from seeing a party (YJCEA 1999 s 23); evidence by live link (s 24); hearing a witness’s evidence in private (s 25); video recorded evidence or cross-examination (ss 27 and 28); and questioning a witness through an intermediary (s 29) or device (s 30). In family proceedings, the measures available for a witness would be the same as for a party.

 

If the tormenting or other in-court abuse of the witness/party denies her a fair trial, including because the value of her evidence is ‘diminished, it is not a fair trial fair for her or for the party for whom she is giving evidence. European Convention 1950 Art 6(1) rights are engaged. Means assessment permitting, and if legal aid is not already available, she may be entitled to legal aid as an exceptional case determination (LASPOA 2012 s 10(3)). If this is correct, resources questions can be addressed now, without changes to primary legislation. The law in this area – which Lady Hale’s comment in Re A [2012] above clarifies – could be represented by:

 

  • The list of special measures in YJCEA 1999 ss 23-28 as developed and explained by Lady Hale in Re W can be applied, by analogy or where otherwise already available, in family proceedings;
  • Regard being paid to the victim – ie A’s – right to a fair trial; and as to what is required to ensure she can give evidence of a quality which is not diminished (YJCEA 1999 ss 16 and 17); and
  • If rights are required to be protected by special measures and an intermediary (or cross-examination by an advocate in the same way as in YJCEA 1999 s 38(4)), then is her trial fair without this (if resources must be spent)?

 

If the answer to the final question above is ‘no’, then her fair trial rights, are engaged. If she has legal aid under a certificate within the terms of LASPOA 2012 Sch 1 paras 11-13 (domestic violence, children etc), then this needs amendment to secure intermediary or advocacy help (on analogy with YJCEA 1999 s 38(4)). If not, and fair trial rights are in issue, then s 10(3) exceptional case determination may be engaged.

 

Effective, imaginative and pro-active case management

 

The practical and resources issues which children and vulnerable witnesses raise fall into two main categories:

 

  • A as a victim or alleged abuse: that is, in the situation identified by the Guardian and Sir James Munby P (and dealt with in H v L and R (above) and (less satisfactorily) in Re K & H (Children) [2015] EWCA Civ 543 sub nom K and H (Private Law: Public Funding)[2016] 1 FLR 754
  • The child or other vulnerable individual (as eg defined by YJCEA 1999 s 16 and 17) – or a party, under the same pressures in family proceedings – who gives evidence, which may be diminished by the circumstances of the case, and where special measures are called for (see Lady Hale in Re W [2010] (above) and Re A (above)).

 

Given what was said by Lady Hale in Re W the second category of cases resolves itself by effective, imaginative and pro-active case management which, as Lady Hale asserts, judges can do, but fail to take on (things ‘the court can do but … that it is [not] used to doing at present’: Re W per citation of §[28] above). If a party has legal aid – and practitioners should be wary of any statutory charge issues if the certificate applies to other proceedings – then proactive case management and full use of court resources (eg video-link; live-link and screens) can deal most special measures. If particular intermediary support is needed and this has resources issues amendment of legal aid will be needed.

 

YJCEA 1999 s 38(4) (quoted above) – if this is taken as a model for now for what follows – deals with potentially abusive cross-examination, where B is unrepresented, by imposing on B an advocate (who is not ‘responsible’ to B). It requires him/her to assist the court and to ensure, in the circumstances, that B has a fair trial; and to do so by cross-examining A. This is funded by B cannot in law do so. How would that work in family proceedings? Under YJCEA 1999 s 40 payment from public funds is provided for (and the working of these payments is touched on by Justice denied? The experience of unrepresented defendants in the criminal courts April 2016, by Transform Justice at p 15 (http://www.transformjustice.org.uk/wp-content/uploads/2016/04/TJ-APRIL_Singles.pdf). If the Ministry of Justice can do this for victims in criminal proceedings, why not the same for those in a similar position – perhaps being cross-examined on the same facts as those in criminal proceedings – in family proceedings?

 

‘Special measures’ and legal aid

 

Category (1) (above) represents the Truss review problem. This can be funded – now – from an existing certificate (Sch 1 paras 11-13). If para 11-13 legal aid is not available, then if A’s evidence is ‘diminished’ and a fair trial threatened, Art 6(1) is engaged; and s 10(3) may bite. Either way, can YJCEA 1999 s 38(4) be applied by analogy in family proceedings? And, if so, can it be funded by legal aid?

 

With CrPR 2015 Part 23, s38(4) provides a model for court advocate appointment. B has a fair trial: his ‘accuser’ is professionally cross-examined. The following argument can be tested in the Family Division, alongside Lady Hale’s Re W§[28] comments:

 

  • a High Court judge has inherent jurisdiction to regulate the court’s procedure;
  • justice would be promoted (perhaps only made possible: operation of YJCEA 1999 Part 2 readily attests to this) by a ‘s38(4)’ appointment
  • this assistance cannot now be funded direct from public funds (cf YJCEA 1999 s40)
  • with pro-active case management this can be done on legal aid certificate (either under a conventional Sch 1, or a s10(3), certificate).

Vulnerable witnesses, parties and children in family proceedings

Cross-examination of victim by an alleged abuser

 

The Justice Secretary, Liz Truss, and her Ministry of Justice have woken up – at last – to the real dangers and hardship created by the present framework of certain family proceedings. The hardship has been aggravated by the cut-backs in legal aid since April 2013.

 

On 30 December 2016 a statement by Sir James Munby, President of the Family Division (https://www.judiciary.gov.uk/announcements/president-of-the-family-division-sir-james-munby-cross-examination-of-vulnerable-witnesses-in-the-family-court/) was issued by the Ministry. It followed a Guardian report before Christmas which dealt with, as it was said, the further abuse of domestic abuse victims permitted by family courts (https://www.theguardian.com/society/2016/dec/22/revealed-how-family-courts-allow-abusers-to-torment-their-victims ). The concerns raised by the Guardian and the President have lead to a report that the Justice Secretary, Lyn Truss, is looking into the problems raised (https://www.theguardian.com/society/2017/jan/04/truss-orders-review-to-ban-abusers-tormenting-victims-in-family-courts); and the Guardian has followed all this with a strong leader voicing concerns at the delay in protection for unrepresented victims of alleged abuse (https://www.theguardian.com/commentisfree/2017/jan/05/the-guardian-view-on-family-courts-cuts-hurt?utm_source=dlvr.it&utm).

 

This note concentrates – as do the Guardian articles – on the victims of alleged abuse; but the subject and the reforms needed in the family justice system go much wider; though these reforms altogether, alongside those referred to by Sir James, are together stalled by the delays insisted upon by Ministry of Justice. Reforms are urgently needed in three separate (if sometimes overlapping) areas of the work of the family courts:

 

  • the evidence of children (as distinct from their views) in their own proceedings (as in Re W [2010] (below));
  • cases where the judge may be asked to hear the views of a child; and
  • the evidence of vulnerable adult witnesses (as in eg Re A [2012] (below)).

 

Evidence of ‘vulnerable people’ in family proceedings

 

In his statement Sir James emphasised ‘the pressing need to reform the way in which vulnerable people give evidence in family proceedings’. He pointed out that ‘the family justice system lags woefully behind the criminal justice system’ (eg under Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) Part 2, as discussed below). He said that the courts cannot act, since ‘it requires primary legislation’; and any action ‘would involve public expenditure. It is therefore a matter for ministers’.

 

The criminal justice ground work – to which the President refers – is in place under YJCEA 1999. A background to this legislation is provided, for example, by Lady Hale in House of Lords in R ((D) (a minor)) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393 at para [19] (and see R v Lubemba & Ors [2014] EWCA (Crim) 2064 and Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) Chs 8 and 19).

 

Lady Hale considered the specific subject of vulnerable witnesses, their evidence and cross-examination by their alleged abuser, in Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948. She stressed the ‘flexible’ bases on which family courts can deal with evidence from witnesses – and by extension, children – who, it is said, had been abused by a party (eg by the father of A in Re A):

 

[36] It does not follow, however, that X [a vulnerable young adult] will have to give evidence in person…. Family proceedings have long been more flexible than other proceedings in this respect. The court has power to receive and act upon hearsay evidence. It is commonplace for children to give their accounts in videotaped conversations with specially trained police officers or social workers…. Oral questioning could be arranged in ways which did not involve face to face confrontation. It is not a requirement that the father be able to see her face….

 

In the Camberwell Green Youth Court case (above) Lady Hale explained the background to YJCEA 1999 which aims to deal with the ‘quality of a witness’s evidence’ (s 16(5)). Sections 16 and 17 create three categories of witness who may be eligible for assistance by a special measures direction: first, a witness under 17 is automatically entitled to assistance (s 16(1)(a)). Secondly, s 16(1)(b) deals with incapacitated witnesses (as defined in s 16(2)) and  thirdly, s 17(1) with witnesses effected by ‘fear or distress’. In the last two cases the court must be satisfied that any evidence ‘is likely to be diminished’ by the circumstances of evidence being given. In what follows ‘witness’, by analogy, will include a party (eg child, alleged abuse victim etc) in family proceedings.

 

Family proceedings and the VWCWG

 

Sir James Munby set up the Vulnerable Witnesses and Children Working Group (‘VWCWG’) in mid-June 2014. Six weeks later the Group produced an interim report which recommended a single ‘new mandatory rule [yes, a single rule] … supplemented by practice directions (PD) and guidance…’. The group did not deal with the three aspects of the issues, mentioned at the start of this article, which their brief demanded.

 

By Spring 2015 a further draft report was produced, followed six months later by draft rules (https://consult.justice.gov.uk/digital-communications/draft-amendments-to-family-procedure-rules/supporting_documents/annexachildrenvulnerablewitnessesfprcdraftrule.pdf) which were put out for consultation. And that is as far as this has been taken by Ministry of Justice. The draft rules have yet to be formalised, and a practice direction issued to support them. From Sir James’s statement it seems likely that the Ministry of Justice has now realised that resources issues arise, which were not considered in the VWCWG reports. The Justice Secretary who, we are told, has taken this on must now be aware – as her office should have been, at least two years ago – that state expense will be involved to protect victims (as is the case for those needing protection under YJCEA 1999, Part 2).

 

Youth Justice and Criminal Evidence Act 1999, Part 2

 

If a witness comes within one of the categories in YJCEA 1999 ss 16 or 17 s/he may be eligible for special measures assistance (YJCEA 1999 ss 23-30), including: preventing a witness from seeing a party (YJCEA 1999 s 23); evidence by live link (s 24); hearing a witness’s evidence in private (s 25); video recorded evidence or cross-examination (ss 27 and 28); and questioning a witness through an intermediary (s 29) or device (s 30).

 

In Re W (Children) (Abuse: Oral Evidence) [2010] UKSC 12, [2010] 1 FLR 1485 Lady Hale spoke of the YJCEA 1999 measures and to the way family courts might use them (emphasis added):

 

[28] The family court will have to be realistic in evaluating how effective it can be in maximising the advantage while minimising the harm. There are things that the court can do but they are not things that it is used to doing at present. It is not limited by the usual courtroom procedures or to applying the special measures by analogy…. One possibility is an early video’d cross examination…. Another is cross-examination via video link [or] putting the required questions to her through an intermediary. This could be the court itself, as would be common in continental Europe and used to be much more common than it is now in the courts of this country.

 

Sir James Munby P says he would ‘welcome a bar’ to the ability of ‘alleged perpetrators being able to cross-examine their alleged victims’; but, a lack of ‘primary legislation’ to incur ‘public expenditure’ – ‘a matter for ministers’ – makes law reform impossible. If Lady Hale in the Supreme Court (Re W [2010] (above) and the human rights implications of legal aid legislation (per Legal Aid Sentencing and Punishment of Offenders Act 2012 s 10(3)) are followed, it is questionable whether this is necessarily the case.

 

Lady Hale’s statement in Re W [2010] is authoritative guidance on the current state of the law and the ‘things the court can do’. Measures in YJCEA 1999 ss 23-28 are already largely available for family proceedings. The ‘intermediary’ point creates resources implications which can depend on case management; and case management depends on whether the intermediary or other legal assistance (per YJCEA 1999 s 38(4)) can be provided on legal aid.

 

Legal aid, ‘resources’ questions and a fair trial

 

‘The questions which challenge the child’s account’ must be fairly put to the child, says Lady Hale. This is essential; ‘not that counsel should be able to question her directly’ (Re W [26]). If this is so for a child, does not the same apply for any other vulnerable witness or party?

 

If ‘fair’ questioning is the criterion, then if this cannot be done because of the effects on a witness’s evidence then can it be a fair trial if that evidence is not given through an intermediary, or if an advocate is not instructed per YJCEA 1999 s 36(4) to cross-examine the victim for an alleged abuser acting in person? ‘The court’s only concern in family proceedings’, says Lady Hale in Re A (above) at [36] ‘is to get at the truth.’ The witness – or party in many family proceedings – must be able ‘to give their evidence in the way which best enables the court to assess its reliability’; and, says Lady Hale, ‘it is certainly not to compound any abuse which may have been suffered…’

 

If obtaining the truth does not represent a trial which is fair for the victim, then her (or the child’s) European Convention 1950 Art 6(1) rights are in issue and – means assessment permitting – she may be entitled to legal aid as an exceptional case determination (LASPOA 2012 s 10(3)). If this is correct, many resources questions can be addressed under the present legal aid scheme. No immediate changes to primary legislation would be needed to take protection for victims a long way towards the added protection they need.

 

David Burrows

5 January 2017

LITIGANTS IN PERSON: ASSISTANCE AND THE COURTS

Consultation on McKenzie friends: the right end of the telescope?

 

The English system of litigation and of assistance to litigants faces criticism and review from two different directions: The Lord Chief Justice’s Report 2015 (January 2016 https://www.judiciary.gov.uk/wp-content/uploads/2016/01/lcj_report_2015-final.pdf) and ‘Reforming the court’s approach to McKenzie Friends: A Consultation’ (February 2016: https://www.judiciary.gov.uk/wp-content/uploads/2016/02/mf-consultation-paper-feb2016.pdf) (‘the consultation paper’). This note is concerned with the consultation and to comment on the help which may be needed by courts and parties from people trained in law at various levels. Meanwhile the comment of the Lord Chief Justice in the introduction to his Report must be born in mind as the future of lay representation is considered:

 

Our system of justice has become unaffordable to most. In consequence there has been a considerable increase of litigants in person for whom our current court system is not really designed.

 

There are a number of constants when operation of the court system is considered. These include: that the law and the procedure by which it operates can be – and often is – complex; that litigants are rarely the person best able to help themselves and frequently want help from trained professional people to assist them in court (and those people want to be paid); that judges often want assistance from a person specialist in the field being considered by the court. The last point is illustrated by Gregory v Turner [2003] EWCA Civ 183, a case which a district judge had regarded as a small claim, involving damages of £100; and a judge had rejected on appeal and awarded costs against the Gregorys. In the Court of Appeal Brooke, Sedley and Carnwath LJJ (who jointly wrote the court’s 117 paragraph judgment) said:

 

[4] Because of the difficulty of some of the matters we had to decide we sought the assistance of an advocate to the court, and Miss Lee appeared in that capacity. The Gregorys had the benefit of advice given to them by counsel instructed by the Bar’s Pro Bono Unit (although he did not appear at the hearing), and Messrs Freshfields prepared the court’s bundles on a pro bono basis. We are grateful to all of them for their help.

[5] We permitted Mr Morris to make submissions to us on behalf of the Gregorys after we had heard Miss Lee’s submissions. The council did not appear on the third application, but we had the benefit of their written submissions in the court below. We ensured that notice of this hearing should be given to the Turners’ solicitors, and we will refer in paragraph 38 below to the short written submissions we received from them.

 

That is to say, the parties had no legal representation in the Court of Appeal, though the Gregorys and the court had had some assistance in preparation; there was an advocate to the court; and there was lay assistance to the Gregorys from Mr Morris. In the final analysis the court found that the district judge and a judge to whom the Gregorys appealled had both got it wrong; but because leave to appeal from the judge had been refused the Gregory’s could take their complaint no further (§§45-46; Access to Justice Act 1999 s 54). (The justice of this conclusion, in itself, takes some subtlety of forensic mind for anyone accustomed to general concepts of fairness.)

 

Representation in civil courts

 

Traditionally parties have been represented, and courts assisted, by practising lawyers. With the withering of availability of legal aid lawyers are often too expensive for most ordinary people. Enter the ‘McKenzie friend’ (as defined by the consultation paper at §2.3: see below) whose training and ability as a lawyer is unassessed, whose status is unregulated and who, as far as is known, is generally uninsured. As will be explained, the consultation paper is based on the symptoms of judicial concern – namely, lay (ie non-qualified lawyer) representation – not the cause, namely the problems which lay parties confront with self-representation and confronted by often complex law and procedure.

 

Though well-researched, the consultation paper is a modest document. In an introduction it explains the back-ground to the subject of representation: by parties themselves, by lawyers, and by McKenzie friends. The consultation takes the view (at §2.5) that there is a ‘common law right [for an unrepresented individual’ to receive reasonable assistance in proceedings’; and defines help which may be provided to litigants in person (the consultation’s definition of a McKenzie friend at §2.3) as:

 

While LIPs conduct their own litigation individuals, known as McKenzie Friends, often help them. This may take a variety of forms from the provision of moral support, to – with the court’s permission – carrying out the conduct of litigation or acting as an advocate on the LIP’s behalf. Only at the courts’ discretion, may a McKenzie Friend be granted a right to address the court in order to help the LIP present their case to the court. The grant of such a discretionary right has become increasingly common.

 

Litigants in person: a judicial working group

 

As background to the reforms under review the consultation paper it cites a 2011 Civil Justice Council report on Access to Justice for Litigants in Person (https://www.judiciary.gov.uk/wp-content/uploads/2014/05/report-on-access-to-justice-for-litigants-in-person-nov2011.pdf) and the Judicial Working Group on Litigants in Person: report (July 2013: https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Reports/lip_2013.pdf chaired by Mr Justice Hickinbottom – ‘the Hickinbottom report’). Some recommendations of that report, in relation to McKenzie friends, are summarised, economically (as will be seen):

 

[3.3] The [Hickinbottom report] considered reform in its report in 2013 [at §§6.22-6.28]. It recommended that consideration be given to:

(i) rationalising the approach taken to McKenzie Friends across the courts and tribunals;

(ii) codifying in the Civil and Family Procedure Rules the practice and procedure relating to McKenzie Friends;

(iii) issuing further guidance to maximise the positive benefits, and minimise the negative effects, McKenzie Friends bring to the administration of justice;

(iv) replacing the term ‘McKenzie Friend’.

 

The consultation report says that it will consider ‘the final three recommendations’. It thereby rejects one of the more radical, and important, recommendations of the Hickinbottom report: that its recommendations should apply equally to civil proceedings as to administrative tribunals. The consultation paper rejects tribunal representation (where ‘non-lawyer representation is the norm’) as follows (at §3.4):

 

There is no evidence to suggest that would be or otherwise desirable. Or it would take the form of liberalising the approach to representation in the courts to bring it in line with the tribunals-based approach. There is no evidence that, what would in effect be, a wholesale removal of restrictions on rights of audience in the courts is beneficial or desirable.

 

And that is that: an essential line of inquiry and wide field of comparison for the subject – fully considered by Hickinbottom – is thus disposed of.

 

Reform proposals

 

Under the heading ‘reform proposals’ the consultation paper proceeds to consider and seek responses on the following (broadly following the last three of what it sees as Hickinbottom’s recommendations):

 

  • Finding another term for ‘McKenzie friend’ – ‘court supporter’ is preferred by the consultation paper (the Hickinbottom preferred ‘lay assistant’ (Part 8) is not considered);
  • Replacing the existing case law on McKenzie friend with ‘codification and practice guidance’ revision (though the paper does not state what the status of such codification should be);
  • That notice should be given to the court and to parties where a McKenzie friend is to be instructed;
  • There should be a plain language guide setting out what McKenzie friends can and cannot do, mostly so that litigants in person are properly informed as to their role.
  • That fee recovery should be prohibited – though, again, the consultation does not say what the powers to do this are.

 

These will be the main intended areas of consultation.

 

The Hickinbottom report

 

The title to the Hickinbottom report makes it clear that its main object is to see issues, including of representation, from the point of view of litigants in person (LiP), and their place in the post Legal Aid Sentencing and Punishment of Offenders Act 2012 civil justice system (Judicial Working Group on Litigants in Person: report (July 2013); and see review at  ‘Justice for the litigant in person’ 2013 Family Law, David Burrows http://onlineservices.jordanpublishing.co.uk/web/pub.xql?c=t&action=home&pub=FAMILYpa&lang=en#addHistory=true&filename=Family_FLJONLINE_FLJ_2013_09_44.dita.xml&docid=Family_FLJONLINE_FLJ_2013_09_44&inner_id=&tid=&query=&scope=&resource=&toc=false&eventType=lcContent.loadDocFamily_FLJONLINE_FLJ_2013_09_44 ). The report looks at the issues from the point of view of the LiP, and shows a real appreciation of the problems they face. It is not designed only for the judges who must deal with LIP cases. It starts from the proposition that ‘providing access to justice for litigants in person’ within a system designed on the assumption that the majority of parties are legally represented ‘poses … unique challenges for the judiciary’ (§2.5); and it works its way to a series of recommendations based around this proposition.

 

On McKenzie friends, Part 6 of the report considers their varied roles in civil litigation. It sees three types of McKenzie friend (§6.12): those who attend to give moral support; those who attend court as advocate; and those who conduct the claim in full. Each have a role, says the report; but the role of ‘lay assistants’ and terminology applicable to them must be clarified and regularised by rule or practice direction (§6.29). Consideration should also be given to what should happen where a McKenzie friend may be said to have a conflict of interest: in a family case the ‘friend’ has received confidences from both parties; or has received them from one, but then turns up in court ‘acting’ for the other spouse or partner. Procedures must cover this point.

 

It is perhaps worth looking in full at two of the report’s paragraphs summarised by the consultation (at §3.3: see above), since these give the real flavour of what Hickinbottom recommended:

 

[6.22] The Group recommends that the Judicial Office considers, urgently, rationalising the historic differences between practice in the court system and practice in tribunals, as part of a wider review of lay assistants. That review should have as its objective the issuing of further guidance – if possible, covering both courts and tribunals – that focuses on the overriding objective of dealing with cases justly and at proportionate cost, and seeks to maximise the positive benefits that lay assistants can provide to the effective administration of justice, whilst ensuring that the possible negative effects are also addressed. The Group considers that, where lay representation is allowed for a particular case, then it is vital that all are fully aware of the role the representative is playing, and the scope and restrictions on that role….

[6.23] More specifically, the Group recommends consideration of the merits of introducing into the CPR and FPR, as has recently been introduced in Scotland, rules governing: i) the exercise of the right to reasonable assistance; ii) the right to conduct litigation; and iii) the right to exercise rights of audience31. Whether by way of Practice Direction or rule or both, in the latter two cases, such provision could provide guidance as to how the court’s inherent jurisdiction to grant such rights, which is preserved by the Legal Services Act 2007, should be exercised. Such Practice Direction or rule could helpfully replace, revise or codify the present case law authorities.

 

And on ‘lay assistants’ (the preferred term for McKenzie friends) the report (in its conclusions in Part 8) recommended:

 

(viii) The Judicial Office should consider, urgently, rationalising the historic differences between practice in the court system and practice in tribunals, as part of a wider review of lay assistants.

(ix) The Judicial Office should consider, urgently, the merits of introducing into the CPR and FPR, as has recently been introduced in Scotland, rules governing:

  1. i) the exercise of the right to reasonable assistance;
  2. ii) the right to conduct litigation; and

iii) the right to exercise rights of audience.

(x) The Head of Civil Justice and Heads of Division should consider, urgently, the terminology that should be used, including whether the term “McKenzie Friend” continues to be useful.

 

Terms like ‘cases justly’ and at ‘proportionate cost’; ‘rights to reasonable assistance’ (my emphasis), ‘to conduct litigation’ and ‘to exercise rights of audience’ all come through from these recommendations. Ideas and recommendations such as these are absent from the summary in the consultation paper.

 

Looking through the right end of the telescope

 

The Hickinbottom report looks through the correct end of the telescope: at what are the needs of the LiP in the civil and family justice system and how can these be dealt with in a way which is fair to all/both parties and to the court system. The McKenzie friend is but a part of this. The consultation report looks only at this aspect; and not from the point of view either of the LiP (who seeks the help, and may be prepared to pay) or from the point of view of the lay representative, who may be sued for what s/he does.

 

The consultation makes not reference to regulation and training of these representative; of what their liability might be in damages for negligence to their own clients, and for wasted or disallowed costs (akin to Senior Courts Act 1981 s 51(6) and (7) for legal representatives); or what their duties are to the courts.

 

Surely the priorities for a scheme must recognise the real needs of the system (see the comments eg in Gregory v Turner above); and to recognise that these must be regulated. What is meant by a ‘reserved legal activity’ and other forms of ‘legal activity’ are defined by Legal Services Act 2007 s 12, and who may carry them out by s 13. That is surely a starting point – a framework – for reform in this area. That must reflect what help can be provided to the court; who may or should pay (including for insurance); and it must recognise (as Hickinbottom is very concerned to do) fairness to other parties who are not acting in person or assisted by a McKenzie friend.

 

And finally the consultation must face the reality of the Lord Chief Justice’s comment at the beginning of this article. The English system ‘of justice has become unaffordable to most’; and that ‘there has been a considerable increase of litigants in person for whom our current court system is not really designed’. To what extent could a correctly and fairly regulated system for lay representation do this?

LEGAL AID HANDBOOK 2015/16

LEGAL AID HANDBOOK 2015/16 Ed Vicky Ling and Simon Pugh (2nd ed Legal Action Group, September 2015 – £60)

This is a remarkable book, by any standards. First it succeeds in combining together an introduction to civil (and family) and criminal legal aid in one concise volume; and to explain what has become an absurdly complex amalgam of primary and secondary legislation; of guidance and contract terms; and, now, of a burgeoning case law.

Second it does all this within a paperback which is about the same size as the pre-Access to Justice Act 1999 ‘Legal Aid Handbook’ (a source book published by: Law Society, and then the Legal Aid Board). Much credit must go to Legal Action Group for its second edition publication (price: £60).

I tested the book by reference to exceptional case funding and remuneration (how lawyers get paid: a word, by the way, which could have been in the index). As I read the chapter ‘Getting paid [a much better term than ‘remuneration’] for civil and family work’, I thought how useful would have been a Glossary; I looked in the front of the book; and – another plus:  there it was at p xxxvii. The chapter covers all angles of payment with typical clarity; but, again, shows the mind-boggling complexity of the 2013 scheme.

Exceptional case funding (ECF) is up-to-date; and that, in the case of a fast-moving target is another point of credit for the authors and publishers. It includes assessment of the seminal IS v The Director of Legal Aid Casework & Anor [2015] EWHC 1965 (Admin), a judgment of Collins J of only three months ago. The subject is fully explored, in a way which was not open to the authors for the first edition.

Any legal aid practitioner must have his book, and if possible should find time to read carefully the sections which apply to his/her practice (ie not just use the Handbook as a reference book). And then my soap-box: practising lawyers have a habit of looking only at the surface of a scheme; that is for only as much as is demanded to get the job done. This is fair enough, up to a point. But….

Our job requires us always to test the legality of a Government scheme or of court rules. And if secondary legislation (eg regs, rules or guidance) are unlawful, we must challenge them (and any help on such a challenge can be found in another LAG book: on judicial review).

If this book gets us all back into the source material (eg on ECF: LASPOA 2012 s 10(3) and Collins J in IS (above)) it will surely help us to do the job all the better, for our clients. That is what we are trained to do, and we owe it to our clients to do it – especially under so fiscally vicious a government as the present one. Only we can help those who now need help.

And if Mr Corbyn is setting up a review of the legal aid scheme, I urge LAG to send each member of the Labour group so entrusted a copy of this book; and to test them on it after the Christmas parliamentary break.