CROSS-EXAMINATION IN DOMESTIC ABUSE CASES: NEW LAW IN TODAY

"I put it to you that you are a scheming liar. You tried to stab me with your nail scissors and have been conducting a secret affair with the postman since we got back from honeymoon."

From today 21 July 2022, domestic abusers will never have had it so bad. The Domestic Abuse Act 2021 sections 65 and 66 are brought into force in relation to court proceedings started on or after today (see SI 2022/840). No longer will the unrepresented abuser have licence to agitate, if not terrify, the person they have allegedly abused by putting questions to them in person. Instead, in the majority of such cases involving abuse allegations, the court will appoint an independent lawyer to conduct the cross-examination.

In family proceedings, where a party has been cautioned for, charged with or convicted of a specified offence - you name it and the offence is probably specified in a 14 page list of them - that person will be prohibited from personally conducting the cross-examination. And for good measure, the party making the abuse allegation is similarly prohibited so a vice-versa situation. The same prohibitions will apply to civil cases unless there has only been a charge of a specified offence.

In both family and civil cases, where there has been a protective injunction made - for example, a non-molestation order - following a hearing which was notified in advance to the party injuncted - neither unrepresented party may cross-examine the other.

There is automatic prohibition in these scenarios. Otherwise, the court has a wide discretion to prohibit cress-examination in person when this would be likely to affect the quality of a witness's evidence or cause significant distress to a party to the case or a witness. 

FAMILY CASE STATEMENTS & ORDERS: The President threatens!

If you are due to make or prepare a witness statement or draft an order in a family case - it could be about financial remedies after divorce or a child welfare dispute - ignore the memos just produced by the High Court's Family Division's President at your peril. He's obviously fed up and he's in threatening mode. 

The memo on witness statements guides on what should go into and stay out of them. Too many statements, he says, are prepared in breach of proper professional standards. Ouch. He is mirroring a lot of the practice which must now be followed in the Business and Property Courts and he says, in effect, that if you do not play ball then these requirements will be imposed on you by (not the stocks, not a suspended prison, not firearm to the temple (or Temple) but).....a Practice Direction. In the meantime, materially depart from the guidelines, and the evidence contained in the offending statement could be excluded by the judge.  

What must statements do? For example: use the maker's own words; be confined to facts of which the maker has personal knowledge; where the witness sets out matters of which they have information and belief, indicate the source of them. And - stand by for the real stinker - there must be appended to each statement a list of any documents the witness has been referred to or shown for the purpose of the statement and these documents should be identified or described so that they can be easily identified at the hearing. There are special rules to be obeyed by a lawyer or anyone else assisting in the preparation of the statement. No attempt to alter or influence, thank you very much.

What must statements NOT do? Quote at length from any document; seek to argue the case; take the court through any of the documents; set out a narrative derived from the documents; express an opinion; use rhetoric; or, ideally, exceed 15 pages although 25 pages should be regarded as the maximum.

Litigants in person should follow the guidance as well. But, for a non-complex child dispute (not a care case), the memo has a template statement which is useful and covers the documents stuff.

For the full memo, take a butchers at https://www.judiciary.uk/wp-content/uploads/2021/11/PFD-memo-on-witness-statements-12112021.pdf

The President has not stopped there. Another memo, this time on drafting orders which is intended for the lawyers, has flowed from his pen. He is fed up in private law cases with unnecessary verbiage and great delay in the production of agreed drafts. Attributing views to the court which did not from part of the decision must stop. Recording the position of a party before or during the course of hearing must stop. Background material in a financial remedies order will generally be unnecessary. More latitude will be allowed with consent orders. But restraint! When a lawyer has advocated, the order must be agreed, drafted and lodged before leaving court or, with a remote, on the day. If wholly impracticable, within two working days.

Again, no ball playing and there will be a Practice Direction.

For this full memo, feast yourselves at https://www.judiciary.uk/wp-content/uploads/2021/11/PFD-memo-on-orders-10112021.pdf

KEEP OUT!

Can you be thrown out of court for any part of the civil claim you are bringing or defending?

Certainly, if you disrupt the hearing by unruly behaviour or may be by bringing out a copy of Breaking Law. Otherwise, you have a fundamental right to see and hear all the evidence which is seen and heard by the judge. The Court of Appeal ruled on 14 July 2016 that one of two claimants should not have been excluded from court while the other was giving evidence. Exclusion meant that they did not have a clue what the the other had said when they returned to give their own evidence.

The two were after compensation for a road accident but the insurers on the other side were alleging that the claim was fraudulent.

Despite the trial judge's wrong call, the Cout of Appeal ruled that, taken as a whole, the proceedings had not been unfair. Incidentally, both claimants lost although the trial judge's finding of fraud was set aside.