So what about that Johnny Depp case then?
All right, it’s a libel trial, and it involves celebs, and it’s nothing to do with the Family Court – but there are some interesting similarities between how family courts treat domestic abuse and how it was dealt with in the Depp case – as well as some marked differences. We thought a comparison would be a useful way of thinking about domestic abuse and family courts, which most commonly arises in the context of applications about children.
Let’s start with some contrasts…
Obviously the purpose of libel proceedings is different to a case about children or a straightforward application for a domestic violence injunction (non-molestation order). In a libel case the issues will be whether or not the published words seriously injured the Claimant’s reputation (Depp in this case) and, if a ‘truth’ defence is raised, whether or not the words complained of were ‘substantially true’. In a libel case, it is also necessary to work out what the words complained of actually mean to the average reader – and if this has ‘the sting’ of libel. Here ‘the sting’ was pretty obvious already – that Depp was a ‘wife beater’.
In order to work out whether the ‘wife beater’ allegations were substantially true, the court in Depp heard evidence about 14 specific alleged examples of Depp physically abusing or assaulting his wife Amber. Having found 12 of the 14 proved, the judge concluded the words the newspaper had published were substantially true.
In a Family Court case, the purpose of a court hearing allegations of abuse is so that it can decide whether or not there is any need to protect a child or a parent from harm in the orders that it makes, to be sure that any order is in the best interests of the child (by law the welfare of the child is the most important consideration and harm is one important factor in the ‘checklist’ of things the court must consider). Once the court knows what has happened, it can decide what the risks are and make sound orders that are in the best interests of the child. Where cases don’t involve children, sometimes a court will have to decide on the truth of allegations of abuse to decide whether or not an injunction is needed to keep an adult safe.
In each category of case, the court will only be willing to hear evidence and make findings of fact about allegations of abuse insofar as that is necessary in order to decide the main issue (substantially true / best interests of child / protection of adult applicant for injunction).
As will be seen, what is necessary and proportionate is a somewhat subjective decision – different judges and different courts may take different views about what is necessary. In the Family Court, judges have been criticised for saying that fact finding is not necessary because the complaint is ‘historic’. It is fair to say that perceptions of what is ‘necessary’ in terms of the exploration of domestic abuse allegations have changed over time, just as perceptions of what is proportionate have changed over time.
Allocation of resources
To a family lawyer the contrast here is striking. Firstly, although the judge did draw a line and say that there were some things it was not necessary for him to decide (who had an affair with whom for example and something mentioned but not explained that happened (or didn’t happen) in the Bahamas), the court was prepared to deal with 14 separate allegations of abuse, and to deal with them in some substantial detail.
In many family cases, those complaining of abuse are still encouraged or directed to limit their allegations to six, sometimes ten allegations.
Here, the majority of the trial was taken up with the evidence and submissions on these factual matters (there was also some legal argument about other issues but that took up comparatively far less time) – and the judge records that there were 14 days of evidence and two further days of closing submissions i.e. over three full weeks of court time. He also records that he had some 13 lever arch files of documents (that is 4,000+ pages). Plus ‘many late documents’. The court heard evidence from a vast number of witnesses from each party. It’s worth noting that Amber Heard, the victim of Depp’s abuse, was not a party and so was not represented – she was just a witness in a claim brought against the newspaper (we’ll come back to that).
Both parties (Depp and the newspaper) were represented, not just by one lawyer, not even just by one junior and one Queen’s Counsel – but by two Queen’s Counsel each. Pricey.
In a Family Court case, the parties would be very lucky to secure a listing for more than four days (more typically a fact finding hearing is fixed for a one or two day slot) and in many such cases one or both parties will be without a lawyer at all. A legal aid lawyer representing the victim of such alleged abuse would probably expect to be paid (very approximately) £400 gross (about £200 net) for each day of the fact finding hearing (a bit more for the first day, but that is intended to represent the preparation time). Each lawyer in the Depp case was undoubtedly on a fee of several thousand pounds for each day of their attendance, and in respect of the QCs possibly more than £10k per day.
Coming as it did during lockdown, the constant coverage of the court service making a High Court Judge available for several weeks to deal with a claim concerning alleged reputational damage to (as it turns out) an abuser – whilst ‘normal’ families up and down the country were either unable to secure a hearing or were having to deal with painful and potential life altering court hearings and to give traumatic evidence by video link or phone from their homes, often without a lawyer – was difficult to stomach. Across the jurisdiction, hearings were being adjourned, conducted on inadequate remote platforms, and in some cases delayed further when listed before legal advisers who didn’t event have the power to make any decisions.
We can see from the judgment that the case was originally listed for trial on 23 March 2020 with a ten-day time estimate. It is notable that this fixture was adjourned and squeezed back in so soon with a massively revised time estimate. It is unthinkable that a private law children application would have got such a slice of court time at all, let alone this quickly, even though the court, by statute, must try and avoid delay in child proceedings.
Meanwhile, the Harm report that was published earlier this year, telling us in grim detail about all that needs to improve in our handling of domestic abuse, is on pause too. But Depp’s claim goes ahead.
The law about findings of fact
This is an area of commonality across both the Depp case and a fact finding exercise in the Family Court. Not every libel trial will be about domestic abuse; many will involve allegations of a different sort altogether, but if the court has to make findings of facts before working out the legal answer to the case, the law is the same.
In both civil and family courts the burden is on the person trying to prove the allegation. Whilst Johnny Depp would have had to prove that the published words were seriously injurious to his reputation, in fact this wasn’t in dispute, and ultimately it didn’t matter anyway, because the judge concluded the words that damaged his reputation were true, which is why his claim for libel failed.
For NGN (the newspaper publisher) their defence was truth under section 2 Defamation Act 2013, and they had to prove as many allegations as they could. In a family case (typically) a mother may seek to ‘defend’ an application for contact with a child by proving her allegations of domestic abuse by the father against her, in order to show that the contact is unsafe or contrary to the child’s welfare interests.
The burden then is on the person alleging. The standard of proof is the ‘balance of probabilities’ in both types of case – that simply means that the person complaining of abuse has to persuade the judge it is more likely than not that their allegation is true. This judge was doing essentially the same thing as a Family Court judge is tasked with.
The procedures adopted
Pleadings – Schedules of allegations
‘Pleadings’ is an old fashioned (but still used) word for the legal document which sets out the basis of the claim in civil proceedings. Formal pleadings are not used in family cases in the same way, but there are certain formal documents that it is conventional to produce which are, in effect, pleadings. These are generally documents which set out the findings that the person making allegations wishes the court to consider and decide – and typically they are set out in a tabulated format in a schedule of allegations (often called a Scott Schedule). They are a basic tool in any Family Court fact-finding hearing (although in care cases a separate table is sometimes used in complex cases. Often there will simply be a short document called a ‘threshold’ document which explains the facts the local authority seeks to prove in order to give the court the power to make a care order – this is another sort of quasi-pleading).
In Depp, the pleadings appear to have contained (amongst other things) the gist of the allegations relied upon, but it is only in the judgment that the judge has set them out, numbered them, given them shorthand names to help with their identification and, under each heading, explained what evidence he heard and how he reached his conclusion.
In a Family Court case, we would expect to see a tabulated schedule prepared by the parties at an early stage, with replies in one column alongside the allegations (admitted, denied, admit the first sentence not the second etc) to assist the judge. It is on one level somewhat surprising that the many lawyers didn’t carry out this exercise to assist the High Court Judge, but it doesn’t seem to have caused any difficulty, and it is apparent that the allegations were at least pretty clearly set out in the pleadings. It may be that the pleadings achieved pretty much the same job in a slightly different format.
In this case, as in a family fact-find, the list of allegations (tabulated or otherwise) provide a structure for both the hearing and the judgment.
There is no mention in the judgment of any particular special measures being sought or granted for Amber Heard, who in the Family Court would have probably qualified as a ‘vulnerable witness’ who could have requested to give evidence by video link or from behind a screen. However, as a wealthy celebrity with a team of support around her, and as a key witness in a high profile case being brought by a newspaper clearly prepared to throw money at the case to defend it (and perhaps someone used to conducting her life in the public eye), Amber Heard may well have felt sufficiently protected and supported by those around her not to need any special measures, particularly given she is now at some chronological distance from the events in question and has (we learn from the judgment) pre-existing therapeutic support on hand. Not everyone who has experienced abuse has such advantages.
In a family case where the parties don’t both have lawyers, the judge also has the unenviable task of working out how best to ensure that the witnesses can be challenged without the alleged victim and perpetrator asking one another direct questions (in order to ensure that a potentially vulnerable witness is able to give his or her best evidence without intimidation or re-traumatisation) – here the judge did not have to worry about such problems because there were ample lawyers to ask questions on behalf of Mr Depp of Ms Heard. These problems in Family Court are commonplace because of the removal of legal aid for those accused of domestic abuse, since 2013 (See this recent post for an illustration of the sorts of problems this can cause).
Hearsay evidence – Notices to admit
Hearsay (indirect) evidence is admissible in both civil and family proceedings and it was relied upon in the Depp case.
The judge records that there were a number of hearsay notices filed. These are required where a party wishes to rely on the evidence of a witness that they do not propose to call and in broad terms, if a party to civil proceedings hasn’t given the appropriate notice they can’t rely on that evidence. Where a notice is served the other party may still apply to cross examine that witness.
There is a similar process in the Family Procedure Rules (see FPR Rule 23) but it is not regularly deployed.
In family proceedings hearsay evidence is more likely to come in the form of video interviews of children who are too young or vulnerable to be cross examined, than being as a result of an adult witness being unable or unwilling to attend, and there is a specific process for deciding whether a party should be permitted to call them or ask them questions.
Just as in family proceedings, the credibility of a witness can be important in deciding where the truth lies and whether a particular allegation can be proved. In Depp, the judge spent a considerable amount of his judgment dealing with issues of credibility, primarily raised by Johnny Depp against Amber Heard, including her conviction for making a false declaration regarding the importation of dogs to Australia (which readers may recall was big news at the time), an allegation that she sought to procure false evidence from people in connection with the Australian criminal proceedings. The judge thought the conviction was of marginal relevance and the procuring of false evidence was not successfully proved. Depp also sought to say Heard was not credible because the number of allegations she had made had expanded over time, and because she had met with him in July 2016 after obtaining a restraining order.
Those who work in family courts will need no explanation of why genuine victims of abuse may well make more allegations over time, or of how they often come to place themselves back in danger by reconciling or meeting with their abuser after having apparently made their escape. Allegations of this sort made by those accused of abuse are very familiar. Whilst it can sometimes be shown that allegations have been fabricated or embellished over time, and that a reconciliation demonstrates the alleged victim wasn’t really in fear at all, there are not infrequently very plausible explanations for both features of a victim’s behaviour. As the judge In the Depp case said,
I do not find that any of this assists me in determining whether Ms Heard is to be believed in her allegations of violence by Mr Depp. She certainly would not be the first woman to have equivocal attitudes towards her partner, even if he had been abusing her. In my view, Ms Heard could still have wished to meet with Mr Depp because of her past or present affection for him (or one side of his character) even if on other occasions he (or a different side of his character) had terrified her. […]even if a third party was not present for every meeting between Mr Depp and Ms Heard in July 2016, my view remains the same: it does not assist me in deciding whether Ms Heard is to be believed as to her allegations that Mr Depp assaulted her.
He also concluded that there were explanations for the increased number of allegations (broadly that she had applied for an injunction at short notice, had set out a sample of allegations and expressly said they were not a comprehensive list), and that did not have any real bearing on credibility.
On top of that Depp ran another familiar argument – he said that she had sometimes admitted violence and at other times denied it. This did not get Depp very far either because of the context in which the alleged admissions had been made.
Finally, Depp’s team argued that Heard had invented the ‘monster’ character in an attempt to portray him as a Jekyll and Hyde character. Quite apart from the fact that there were multiple messages from Depp describing ‘the monster’, the judge said,
I do not accept that Ms Heard invented the expression, still less that her use of it is a reason to disbelieve her evidence about her allegations of violence by Mr Depp. I find that Ms Heard’s use of the expression was not, as Mr Sherborne submitted, an example of ‘retro-engineering’.
In fact, having read the judge’s conclusions overall, Depp’s description of his abusive behaviour when under the influence appears to have been spot on.
Johnny Depp suggested in his evidence that, during the relationship, Amber Heard had been ‘building up a dossier’ of evidence as an ‘insurance policy’. It was suggested Amber Heard had pulled out her own hair and caused an injury on her lip to fabricate an assault allegation (the judge rejected that). As is typical in family cases, Depp reverted to this sort of defence at moments when presented with an inconvenient piece of evidence. The monster issue is a good example :
The metadata for the photograph showed that it was taken on 22nd March 2013 at 1.37pm.
When Mr Depp was asked about this email, he said that this was a hoax. He said that Ms Heard was building up a dossier, as an insurance policy for later.
I do not accept Mr Depp’s characterisation of this and the other documentary evidence on which the Defendants relied.
i) This email was written in June 2013 and so some 3 years before Mr Depp and Ms Heard separated. That would have been a very long time for Ms Heard to concoct a plot. While theoretically possible, I do not accept that was the case.
ii) As I have said previously, I do not accept that the term ‘the monster’ to describe one side of Mr Depp’s character was a fiction invented by Ms Heard.
What is striking about this sorry tale is that it was Depp who launched this action, apparently believing that he could restore his reputation, and apparently believing he could do so by attacking Amber Heard’s credibility and person. One can only assume that Depp was unable to see the risk that his own admitted and documented behaviour was unlikely to ‘play well’ when aired in public.
Depp’s own doctor recorded that Depp
actually romanticises the entire drug culture and has no accountability for his behaviours.
In the Family Court we would say he is ‘pre-contemplative’ and has a long journey ahead.
And the judgment contains many other elements that strongly suggest that Depp was not fully able to accept responsibility for even that behaviour which he admitted :
The following morning (so 25th May 2014) Mr Depp sent a text to Ms Heard which said […]
‘Once again, I find myself in a place of shame and regret. Of course I am sorry. I really don’t know why or what happened. But I will never do it again. I want to get better for you. And for me. I must. My illness somehow crept up and grabbed me. I can’t do it again. I can’t live like that again. And I know you can’t either. I must get better. And I will. For us both. I love you. Again I am so sorry. So sorry. I love you and [f]eel so bad for letting you down. Yours.’
Mr Depp was asked why he had apologised if he had not behaved badly. He said that he apologised because Ms Heard was unresponsive to him. She would not let go of her beliefs and so he used words which she would find pleasing. He said he spoke of being in a place of shame and regret to take the poison out of her quill and because, in the course of a verbal argument, he might have said ugly words. The illness to which he had referred was to his excessive drinking.
The Claimant said he was not sure that it was his voice or that the recording had been made on that plane journey. The Defendants applied in the course of the trial for permission to adduce expert evidence on this topic. […] I refused the application.
The judge later confirmed that he reached his conclusions regarding this incident without reliance on the tape played.
In his own evidence, Depp gave inconsistent accounts – initially denying a head butt, but later saying he might have accidentally banged heads. He couldn’t explain why he hadn’t mentioned it before in his witness statements and he wasn’t sure he had read it all. Again, this sort of over confidence is not untypical in this sort of case.
Photos, and digital evidence
Although it is increasingly common in the Family Court for good use to be made of this sort of evidence it is less common in private law disputes about domestic abuse, probably for resource, cost and practical reasons (legal aid won’t pay lawyers for the work of reading such disclosure which is often voluminous and privately paying clients can rarely afford it).
In the Depp case, there was a wealth of available evidence because of the cast of staff and associates Depp and Heard were surrounded by, and this provided a rich seam of evidence against which to cross check the things in people’s witness statements, sometimes helping to pinpoint or correct a date, or to work out if someone’s memory was accurate – in some instances the contemporaneous text messages and emails jarred with what witnesses loyal to Mr Depp were now telling the court :
However, I prefer the evidence of Mr Depp’s text to Mr Bettany in which after recounting what he had consumed he asked rhetorically, ‘What do you get?’ Mr Depp’s answer to that question was,
‘a fuckin’ blackout, screaming obscenities and any fuck who gets near.’
And of course, part of the reason there were so many witnesses was because there were lots of people about – on some occasions directly witnessing incidents, on other occasions simply observing the aftermath or being told about what had happened at the time – third party witnesses are less likely to be available in a more normal household, and are more likely to be limited to medical staff if there is a serious enough injury, police or neighbours. Many victims of abuse will have nothing to rely upon except their own account.
The court not only had the text of messages but also relied upon the metadata, which showed when the item was created, and there was some considerable argument about the veracity of certain photos or their date stamping. Although metadata is not routinely used in the Family Court (partly because it often requires expert assistance to interpret safely) it is capable of being highly relevant in the right circumstances, and it is not just the very wealthy and well connected who are potentially able to manipulate and falsify digital evidence, as the Family Court is just beginning to appreciate (see last week’s Law in Action on this very topic).
The court also had more traditional hard copy diary entries made by Ms Heard, and they were accepted as accurate contemporaneous records, albeit not of course independent.
There were a number of issues on which applications were made for expert evidence. Here the law is a bit different, in that expert evidence may be permitted where ‘reasonably required’, compared to the more restrictive test of ‘necessary’ in Family Court cases. In any event the judge decided it was disproportionate to allow expert evidence, and was not prepared to let that derail the already long trial.
In relation to one incident, the court heard evidence from two police officers who attended after a callout. As is regrettably not unheard of in family courts, those officers had not taken any contemporaneous notes and the evidence of what they saw was therefore limited to a one-line computer entry, and the officers’ own recollection many months later. Given that they significantly overestimated how long they were in the property (when compared with the timings of entry and exit shown on the CCTV) the judge couldn’t rely on their evidence. Although police records of domestic callouts in the UK are typically better than this, and often now there will be body-worn camera footage and detailed logs and DASH risk assessments, it is very common in family proceedings to find that a professional’s contemporaneous records are poor, or have been destroyed, AND that the professional has forgotten anything that was not in their notes because they handle so many cases (this applies to medics, police, and social workers).
Not a party
As mentioned, Amber Heard wasn’t a party to the case, just a witness. Somewhat boldly, Johnny Depp complained during the trial that it was unfair that she wasn’t a party, because as a mere witness she didn’t have to give disclosure as he had to do – but the reason she wasn’t a party was because he and his legal team had decided to bring the claim against the newspaper only, rather than against Amber Heard as an individual.
In family proceedings, Amber would have been a party, and no doubt would have been able to fund a lawyer. She would have been able to make applications in her own right, and would have been able to have her lawyer cross examine Depp and make submissions to the court. In the Depp case all the questions and submissions were dealt with by the newspaper’s lawyers, and at their instruction, so Heard will not have been in control of the process.
The final familiar refrain, a favourite of tabloid newspapers talking about wives applying for financial remedies in the UK, is the allegation that Heard was a gold digger. Obviously connected to the ‘insurance policy’ claim, this was rejected outright by the court :
she was, according to this scenario, nothing more than a gold-digger. I have in the course of this judgment given reasons why I do not accept this characterisation of Ms Heard. Looking at the evidence as a whole, I come to the same conclusion.
[…] her donation of the $ 7 million [divorce settlement] to charity [as accepted by Depp] is hardly the act one would expect of a gold-digger.
One can imagine how the tabloids would have run with the story if the judge had reached the opposite conclusion. Depp too, seems to have been aware of what impact the case would have on her, had he succeeded. In a text message contained in the judgment he is shown as punitive and controlling, saying
She’s begging for total global humiliation. She’s gonna get it.
It didn’t quite work out that way.
Johnny Depp is reported to be appealing.
Although we can’t realistically hope for domestic abuse in the Family Court to be given the same red carpet treatment as the Depp case, it would be nice to think that this judgment does help those who may have to go through a fact-finding process understand how it works and how a judge considers and weighs all the different types of evidence and competing witnesses.
The case also provides a useful if distressing window of life with a domestic abuser (albeit in the context of a somewhat more opulent lifestyle than most of us are used to), and of the patterns of litigation behaviour that are sometimes a feature (on something of a less grand scale perhaps) of subsequent proceedings. For many of the victims of such abuse, they face Family Court without legal support, in straightened financial circumstances, often whilst they are still in a process of recovery from their experiences, and all the while trying to maintain equilibrium and care of the children, perhaps feeling that they are being compelled to go through a court process in order to keep their child safe.
You can read the judgment here : Depp II v News Group Newspapers Ltd & Anor  EWHC 2911 (QB) and you can read some good commentary on the Inforrm Blog here and here.
Feature pic : cracked mirror by Roland Tanglao on Flickr (Creative commons – thanks)
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