Judge takes over father’s cross-examination in case involving rape allegations – and it ends up being unfair on everyone involved

Mr Justice Hayden is a High Court Judge who has been very outspoken about the potential for the court process to be abusive of those who are already victims of domestic abuse. In a case called Re A (a minor) (fact finding; unrepresented party) [2017] EWHC 1195 (Fam), having permitted the unrepresented father to directly question the mother (albeit with special measures in place so they didn’t have to confront each other by line of sight) he memorably said ‘Never again’. Hayden J said it was ‘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’.  Today he has published an appeal judgment overturning a fact-finding decision in a case where another judge tried to cross examine the mother on behalf of the father accused of rape because (Hayden J said) the process was unfair and the decision unsound. The full judgment can be read here : PS v BP [2018] EWHC 1987 (Fam) (27 July 2018), but this blog post explains it.

The problem arises because a judge needs to ensure that the hearing is fair for both parties and the children, and a fair trial involves being able to challenge evidence you don’t accept by asking questions of witnesses. There have always been people who couldn’t afford a lawyer (some of whom would be litigants in person and some of whom would just not feel able to come to court). Since the reduction of legal aid in 2013 though, this has got markedly more common. Alongside this our understanding of the needs of vulnerable witnesses has dramatically changed. The result is that in an alarming number of cases a judge is confronted with a problem : one party says the other did something awful to them and the other says it isn’t true. The accused has no lawyer (sometimes neither have a lawyer). Somehow the judge has got to get to the bottom of it without having experienced lawyers to test the evidence by asking the right questions of the witnesses. If the alleged victim is telling the truth, being asked questions by the person who abused her is likely to be traumatic, and she may not be able to give her best evidence. If she isn’t telling the truth (so the theory goes) skillful cross examination ought to expose that and avoid an injustice to the wrongly accused. The key is in allowing questions that are forensically necessary without allowing gratuitous or avoidable distress.

In the criminal courts, there is a system in place to help balance these competing needs – the defendant isn’t allowed to ask his own questions. If he doesn’t have a lawyer, one is appointed so that questions can be asked on his behalf. Although a similar set-up was almost brought in for family cases last year, ultimately it didn’t happen because the general election meant a lot of draft legislation got binned. Hayden J is only one of a number of judges who have very firmly stated that this is just unacceptable.

So, where does this case fit in? Surely the judge was just doing his best in difficult circumstances?

Well, yes he was. In fact, he was trying to follow Hayden J’s lead in Re A by not allowing the father to cross examine. The problem was that he had started from the position that the father should be barred from asking questions directly (without hearing what the parties had to say about it), had decided he should ask the questions, but then didn’t ask them in a way which allowed the father’s points to be properly made – in layman’s terms, he bodged it and bottled it. What’s more, he relied too heavily upon a pretty negative impression he had of the father’s demeanour in court, rather than basing his findings on a proper testing of the evidence. The result is that the parties are going to have to go back to square one and go through the whole process again, which is a disaster for all concerned – regardless of where the actual truth lies.

It’s important to say that Hayden J was quite careful to situate the judge’s failings in the wider context, making clear that the judge was between a rock and a hard place and that judges do not have the time nor necessarily the skill to prepare a proper cross-examination of the sort that would be required or expected of an advocate with detailed knowledge of the client’s case, with all its strengths and weaknesses. And this judge was dumped with the case at final hearing without having had any opportunity to case manage it in advance.

The silver lining (for us if not this family) is that in his judgment Hayden J offers some useful ‘observations’ (which he makes a point of saying are NOT guidance and won’t solve the problem in themselves, which are intended as a helpful route map for other judges – and lawyers and LiPs – who are confronted with these sorts of issues between now and whenever the government sorts it out. He says as follows [our observations / summaries are in square brackets] :

I propose to make a few observations intending to assist judges and the profession where this kind of situation arises in future. I emphasise I do not intend what I say below to be elevated to the status of guidance. There can be no guidance where the situation is, as here, untenable. Until Parliament addresses these circumstances the best I can offer is a forensic life belt until a rescue craft arrives:

(i) Once it becomes clear to the court that it is required to hear a case “put” to a key factual witness where the allegations are serious and intimate and where the witnesses are themselves the accused and accuser, a “Ground Rules Hearing” (GRH) will always be necessary; [ a Ground Rules hearing is a hearing to decide whether a witness is vulnerable and what support or adjustments they need to be able to give evidence properly e.g. use of a video link ]

(ii) The GRH should, in most cases, be conducted prior to the hearing of the factual dispute; [plan it in advance]

(iii) Judicial continuity between the GRH and the substantive hearing is to be regarded as essential; [same judge throughout]

(iv) It must be borne in mind throughout that the accuser bears the burden of establishing the truth of the allegations. The investigative process in the court room, however painful, must ensure fairness to both sides. The Judge must remind himself, at all stages, that this obligation may not be compromised in response to a witnesses’ distress; [aim should not be to avoid upset at all costs – rather it must be to do justice to all parties]

(v) There is no presumption that the individual facing the accusations will automatically be barred from cross examining the accuser in every case. The Judge must consider whether the evidence would be likely to be diminished if conducted by the accused and would likely to be improved if a prohibition on direct cross-examination was directed. In the context of a fact-finding hearing in the Family Court, where the ethos of the court is investigative, I consider these two factors may be divisible;

(vi) When the court forms the view, from the available evidence, that cross-examination of the alleged victim itself runs the real risk of being abusive, (if the allegations are established) it should bear in mind that the impact of the court process is likely to resonate adversely on the welfare of the subject children. It is axiomatic that acute distress to a carer will have an impact on the children’s general well-being. This is an additional factor to those generally in contemplation during a criminal trial;

(vii) Where the factual conclusions are likely to have an impact on the arrangements for and welfare of a child or children, the court should consider joining the child as a party and securing representation. Where that is achieved, the child’s advocate may be best placed to undertake the cross-examination. (see M and F & Ors. [2018] EWHC 1720 Fam; Re: S (wardship) (Guidance in cases of stranded spouses) [2011] 1 FLR 319); [in the author’s experience this is fast becoming the most common route through these issues in any event, but the approach of advocates for children / guardians is variable]

(viii) If the court has decided that cross-examination will not be permitted by the accused and there is no other available advocate to undertake it, it should require questions to be reduced to writing. It will assist the process, in most cases, if ‘Grounds of Cross-Examination’ are identified under specific headings; [note the IF here – the court does have to consider whether it is actually fair or necessary to prevent someone accused of something so serious to ask questions themselves – and the judgment reminds us that the family court cannot actually prevent it at present if the LiP insists, which is one of the reasons new legislation was required]

(ix) A Judge should never feel constrained to put every question the lay party seeks to ask. In this exercise the Judge will simply have to evaluate relevance and proportionality; [judge still gets to limit cross examination – no requirement to ask or allow irrelevant or pointless questions]

(x) Cross-examination is inherently dynamic. For it to have forensic rigour the Judge will inevitably have to craft and hone questions that respond to the answers given. The process can never become formulaic; [as any advocate knows, a cross-examination rarely resembles the script – and a good advocate knows when to depart from it (most will have a plan but not a script)]

(xi) It must always be borne in mind that in the overarching framework of Children Act proceedings, the central philosophy is investigative. Even though fact finding hearings, of the nature contemplated here, have a highly adversarial complexion to them the same principle applies. Thus, it may be perfectly possible, without compromising fairness to either side, for the Judge to conduct the questioning in an open and less adversarial style than that deployed in a conventional cross-examination undertaken by a party’s advocate.

Practice around the questioning of child or vulnerable witnesses has been developing fast in the criminal and family courts over recent years. There is now specialist mandatory training for advocates in criminal cases dealing with vulnerable or child witnesses, and an Advocate’s Gateway provides a set of toolkits to assist advocates in understanding the new ethos – whereby the sort of direct, challenging, questions an advocate (or a series of advocates) might have put to a complainant in a criminal trial in the past, will not be permitted now. This judgment is a reminder however, that however important it is to treat alleged victims of sexual or physical harm with care, it is also necessary to allow proper meaningful challenge if a trial is to be fair. Fair trial is about more than treating someone who makes an allegation with kid gloves. As John Tughan QC said on twitter :

The upshot of all this is that it is probably a very bad idea for a judge to attempt cross-examination unless and until s/he has given careful consideration to the rights and needs of the parties, walked through the correct procedures step by step and exhausted all possible alternatives.

This judgment is to be sent to the Secretary of State by Hayden J in the hope that it will encourage the relevant minister to ge their skates on and to introduce a Bill to resolve the problems around cross examination. We’ve yet to see a case where a judge has concluded there was no solution and refused to hear the case – and in most cases the appointment of a guardian will most likely be a workable solution – either the child’s legal representative can ask questions of their own devising to test the evidence in the round, OR they can be asked to put the questions prepared in advance by the accused in writing. In some cases the writer has been involved in, the parties have agreed that the guardian will ask questions first, and the accused’s questions can then be reduced if some of his/her questions have already been asked. The problem will arise where a clued-up litigant in person wishes for questions to be put more fully (perhaps in response to emerging evidence that justifies a move off script) or complains that the job has not been done properly by the child’s lawyer.

For another recent post on the topic of domestic abuse and the cross examination of those complaining of abuse, see this post  : Domestic Abuse – Exaggeration is not required.

Those who have read all the way to the bottom of this judgment will note that the appeal was heard in open court. This is the norm in appeals to the Court of Appeal but as a matter of procedural law is not the default position in appeals which go to the High Court (a route of appeal which was reestablished a couple of years ago). This is part of an increasing trend we have noted of these appeals being dealt with in open court just as they would have been when the appeal used to go to the Court of Appeal, presumably so that transparency is not reduced just by reason of a technicality. As with the Court of Appeal, the child’s and the parents’ anonymity must be preserved. The mother, who is a complainant in connected criminal proceedings, will have a lifelong right of anonymity in any event.

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