I recently read a transcript of the cross-examination of the complainant in a rape trial. Sensitive yet methodical, moving from topic to topic and from document to document, I followed the defence counsel constructing clear and to-the-point questions to draw out important information without gratuitously upsetting or humiliating the witness, firmly yet politely exposing flaws and contradictions in her account.
This is not a skill learnt overnight, nor is it even a skill that all advocates possess, because trials of sexual assault and rape are highly specialised work. So specialised, in fact, that in criminal proceedings the lawyers and judges must be specially “ticketed” before being let loose on this sort of case, which often involves high stakes and highly vulnerable witnesses (as the sad suicides of a number of rape complainants in recent years reminds us).
The seriousness of being charged with a criminal offence is such that legal aid is available for defendants so that they may be represented if they wish. But it is because of the vulnerability of a complainant of sexual assault or rape that the defendant is barred from questioning the complainant directly – uniquely a defendant in this sort of criminal trial is compelled to ask questions of the complainant through an advocate (even if he has chosen to represent himself).
Parliament legislated for this in order to prevent the re-traumatising effect on the honest complainant of having to confront and engage with their attacker – and to ensure that the complainant is able to give their best evidence. Thus, the state provides representation for the defendant partially for the benefit of the person who accuses him.
The reality is, of course, that most of us wouldn’t have the first clue how to go about cross-examining someone who was accusing us of this sort of awful crime – nor any idea of how to manage such a task while containing our emotions. Sometimes the allegation is of rape or sexual assault in the course of or following an intimate relationship. How much more complicated then are the emotional and factual issues?
Even where an allegation of this kind does not lead to a criminal trial, it may still need to be tried where the complainant and accused are parents of a child together. This is because, in the absence of a criminal conviction to use as a factual base for decision-making, the family court may need to decide itself whether the allegation is true or false, or perhaps exaggerated or embellished in order to prevent a relationship between parent and child.
It is often said that false rape allegations are rare; a rate of 2 per cent is often cited. There is controversy as to how accurate such a proposition is, but that makes it no less important to identify whether this case is one of abuse or not – for such findings of fact are the foundation of good decision-making for children who may either be at risk physically from one parent or emotionally from the other.
Even where there has been an acquittal in the criminal court, this factfinding exercise may be necessary – because to be proved (and thus treated as true) in the family court (a “civil” court), a complainant simply has to show that the allegation is more likely than not to be true – they do not have to prove truth beyond reasonable doubt. Thus, a person may be acquitted in the criminal trial and yet found to have committed the act in the family court (in the same way that OJ Simpson was acquitted in the criminal trial but found responsible in a civil court case for the wrongful death of Ronald Lyle Goldman and battery of Nicole Brown Simpson).
Standard of proof aside, you might imagine that where such allegations are made in family court cases, a similar approach to legal representation and trial process applies. But you would be wrong. Since April 2013, there is no legal aid available for those parents accused by their ex-partner of rape, sexual assault, child abuse or domestic violence in the family court case between them (although where social services apply for a care order due to child protection concerns legal aid is available as of right).
The legislation that extinguished legal aid for this sort of case (the Legal Aid Sentencing and Punishment of Offenders Act 2013 – LASPO) did create a scheme of “exceptional” funding, but that application process has been heavily criticised as too complicated for a non-lawyer to manage, and too time-consuming for most legal aid lawyers to take on, given they are unable to recoup the cost and the vast majority of applications are rejected. The High Court has just ruled that those criticisms were justified and the scheme will need redrawing.
And what’s more, there is no power to grant exceptional funding at all if the applicant is over the (very low) means threshold, by even so much as a penny. The exceptional funding scheme has been subject to a number of legal challenges in the courts, and while success rates have gone up recently, they remain very low.
Although there have been a handful of parents who have secured funding through this scheme (usually after months of delay), the reality is that for the vast majority of accused parents this will not be a viable route to legal representation – even where the allegations are very serious or may lead to the court refusing all contact.
So, any parent who is the subject of allegations of domestic or child abuse (allegations of some degree of domestic abuse are relatively common, the really serious allegations less so) is on their own unless they are able to find thousands of pounds for legal representation and advice, or are lucky enough to find a lawyer who will act for free.
Little wonder that many are turning to McKenzie friends (people who assist a litigant in court, and don’t need to be legally qualified) to support them through the process, albeit that McKenzie friends are generally not permitted to question witnesses or address the judge.
While anecdotally some McKenzie friends may provide a beneficial service, this is far from guaranteed. Such individuals are usually unqualified, unregulated and uninsured and often charge rates similar to those of experienced family lawyers. As such they are a risky proposition both in terms of economics and outcomes.
In many cases, parents who have separated and who cannot agree on arrangements for their children bumble through and get to the other side with little or no legal help, perhaps enlisting the skills of a mediator to avoid court altogether. But the simple fact is that there are some disputes that can’t be resolved that way, and that need more than a judicial finger in the air to decide what shape a child’s relationship with a parent should take.
Some cases need the evidence to be gathered, scrutinised and tested, and the facts to be found before decisions can begin to be made. Because sometimes violence or abuse is so significant that there is a huge knock-on effect for both the abused parent and child.
Typically in such cases (but not always), it is the mother making the allegation. She may be legally represented because legal aid for alleged victims has survived the legal aid reforms – but the parent said to have carried out the abuse will not be so fortunate unless he is a man of means. While he will continue to be presumed innocent unless it is proven otherwise, it may not feel to him very much like he is benefitting from that presumption, particularly if he is prevented from seeing his own child while the court makes up its mind.
Sometimes allegations of domestic abuse are comparatively minor or of an isolated incident, but in other cases very serious violence or rape (or abuse of a child) may be alleged. A finding of very serious violence or rape doesn’t necessarily mean that the court will refuse all contact between a child and that parent, but it is highly relevant – and will most likely mean that any contact that does take place requires careful planning and risk assessment.
Family courts are tasked with conducting a similar exercise to the trial in the criminal court, but are given fewer tools to make that efficient and fair. People accused of really serious and unpleasant behaviour – who are often prevented from having contact with their children while allegations are outstanding, and who (if the allegations are proved) may find future contact with their children continues to be restricted or is even stopped – are left to try and assess the gravity and strength of allegations against them. They are also left to work out what documents they need to gather in order to demonstrate falsehood, and to somehow represent themselves at trial – asking questions of the ex who says they are abusive, and addressing the judge on the law.
People who are the victims of really serious and unpleasant behaviour may be asked questions by the person whose voice sends them back to that place they do not want to go back to, or who can silence them with “that look”, who for years has made them give in, capitulate, break down. That the victim has a lawyer to represent her is little protection in such a situation – the witness box is a lonely place.
And what’s more, a victim of abuse who has suffered abuse more than two years before they are served with a court application by the other parent is likely to find they are ineligible for legal aid due to a two-year rule that seems to presuppose that the vulnerability of a victim of abuse is expunged after this comparatively short period – and if they are working in even relatively low-paid employment they will be ineligible on means grounds anyway.
The judiciary and legal profession have been very exercised by all this, as, no doubt, have many parents involved in such cases. A number of cases moving through the family court concluded that, by analogy with the criminal courts, the accused could not be permitted to cross-examine his alleged victim, and that such a scenario would amount to a breach of the human rights of one or other party.
Neither – went the logic – was it appropriate for the judge to conduct the questioning him/herself. Therefore, in order to prevent a breach of human rights by the court therefore – so the argument ran – the Court Service itself would have to pay for a lawyer to step into the breach.
But such an approach has not withstood the scrutiny of the Court of Appeal who, in a case called Re K and H (Children), recently scotched the whole idea. It is now clear that the court has no power to make an order requiring the Court Service to pay for representation. The Court of Appeal signalled pretty clearly in its judgment in K and H that judges need to stop handwringing and get on with it, to find ways round it – broadly, either by requiring the accused to put questions through a lawyer (if he is able to afford it), or by the judge asking questions herself or enlisting the help of a Justices Clerk to do so.
The Court of Appeal acknowledged that in some cases (for example, those requiring testing through complicated questioning, or where there is complex medical evidence) a lack of legal representation could lead to a breach of human rights – but they could offer no solution for that hypothetical scenario other than to recommend that Parliament could amend the law to give judges of the family court similar powers to grant legal aid to those accused of rape in criminal courts, for the purposes of cross-examining the complainant.
As it happens, the Court of Appeal described the case of K and H itself as “fairly straightforward” – a case where they thought the judge should probably have just done the questioning himself. It involved proceedings about a father’s contact with two children, where his older 17-year-old stepdaughter had made allegations of sexual abuse against him. The 17-year-old was to give evidence in order that the court could decide if those allegations were true, and if so what risk the father posed to the younger children.
How many unrepresented litigants facing such accusations would see such a case as “fairly straightforward” is a moot point. We might ask how a 17-year-old would experience being asked the sort of questions designed to test her evidence by the judge who is making the decision about whether she is telling the truth?
And so, for the time being at least, judges and parents dealing with cases of this kind will be left to devise their own solutions, to muddle along. A judge who asks questions on behalf of one party may relieve some of the pressure from both parties where one is unrepresented, but may be vulnerable to accusations of bias.
And while the accused will undoubtedly benefit from a degree of testing of the evidence by the judge, this is unlikely to be as effective as cross-examination after a confidential and frank discussion between lawyer and client – still less if essential evidence has not been identified, collated and analysed in advance for use at trial.
While a judge can ask broad questions on a particular topic, they simply cannot conduct the sort of precise cross-examination that a skilled advocate can deploy on behalf of their client. While an advocate must question in a way that is courteous and sensitive to the vulnerabilities of a witness (and the judge is responsible for ensuring that they do so), the advocate can and must confront inconsistencies and implausible aspects of the evidence of a witness in a way that a judge is likely to feel would be incompatible with their duty of impartiality.
Where there is a lower standard of proof (the “balance of probabilities”), such things may sometimes make all the difference. A wrong decision may leave children and adults unsafe or, conversely, may deprive a child of a relationship with a parent who is in fact no risk at all.
Nobody here is at risk of a loss of liberty as in the criminal courts, but the stakes for children and parents are every bit as high, and the consequences of a wrong decision every bit as lifelong.
Lucy Reed is a family law barrister who blogs at pinktape.co.uk and tweets as @familoo.