Cross-examination by alleged offenders
In the Family Court, alleged offenders of domestic abuse are currently able to directly cross examine their victims. The All Parliamentary Working Group on Domestic Violence highlight that,
‘As well as being a traumatic experience for a survivor of domestic abuse, this can also mean that [victims] feel that they are unable to speak up for themselves and the safety of their children, meaning that they and their children are denied access to justice.’
Despite this, Women’s Aid reported that a quarter of respondents had been cross-examined by alleged perpetrators of domestic abuse. (Source: survey of survivors of domestic abuse 2015)
Whilst this problem existed before the legal aid cuts, the introduction of the Legal Aid Sentencing and Punishment of Offenders Act 2012, has undoubtedly made this practice more prevalent. The Act removed most areas of private family law from the scope of legal aid. According to the National Audit Office 80% of all family cases in January – March 2014 involved at least one person representing themselves. (Source: (Implementing Reforms to Civil Legal Aid)
There are limited exceptions which allow a person to claim legal aid and domestic abuse is one of those grounds, but victims have to provide acceptable evidence of abuse and must still satisfy the means and merit test. Furthermore, if a victim qualifies for legal aid, this does not protect them from being cross examined by an alleged offender, who does not qualify for legal aid, and can represent themselves unless paying privately for legal representation.
The problem has long been highlighted by senior Judges, Sir James Munby, former President of the Family Division stated ‘the family justice system lags woefully behind the criminal justice system’ where this practice is banned.
Despite calls from Judges to ban this practice, the Court of Appeal stated that ‘the court must respect the boundaries drawn by Parliament for public funding of legal representation.’ This case involved the question of whether The Courts could be ordered to pay for an alleged offender’s representation to avoid direct cross examination of victims. The answer was no. The Court of Appeal did outline other tools at the court’s disposal to support vulnerable victims in the courtroom. These include the judge taking on the role of cross examiner and asking questions to the parties.
The recent case of JY v RY  EWFC B16 (27 April 2018), heard in Middlesbrough, outlines the problems with this. The case involved child contact and the mother accused her former partner of raping her. Neither party was eligible for legal aid, despite the mother being on state benefits, and the judge took on the role of cross examiner. District Judge Read stated that,
‘There is a very strong likelihood that the outcome of the fact finding would have been different, and most probably a truer reflection of what really happened, had the parents been represented. It would surely have concluded sooner, more fairly, and at far less expense to the public purse than ultimately was the case, with two wasted days at Court. It may also have been less painful for the participants.’
District Judge Read’s full judgment is available here http://www.bailii.org/ew/cases/EWFC/OJ/2018/B16.html.
If the courts cannot remedy this situation then urgent legislation is needed; yet despite widespread consensus across all political parties, charities and the legal profession, legislation has not been forthcoming. In 2017, the Government promised to end this practice with the proposed Prison and Courts Bill but, due to the 2017 General Election, the legislation was dropped and over a year later little has been done. With mounting pressure and calls from The Law Society, Resolution and Women’s Aid to bring forward the long-awaited ban, there are reports that the up and coming Domestic Abuse Bill, expected in November 2018, will include this provision. However, this provides little comfort now to victims who are still being forced to face their abuser’s in the court room, and, until there is a change in the law, our Family team continue to back efforts to ban this practice.
If you are a victim of domestic abuse and require legal advice, please contact our Domestic Abuse Team.