Where are we with Section 65 of the Domestic Abuse Act 2021?

Friday 23 December 2022

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The Domestic Abuse Act 2021 came into force in April 2021. Section 65 of the Act (which amends the Matrimonial and Family Proceedings Act 1984 (MFPA) creates prohibitions which “prohibit cross-examination in person”.

It is often misunderstood that it is only the accused that is prohibited from cross-examining the alleged victim, but there are also provisions which prohibit the alleged victim from cross-examining a person who has already been convicted, given caution, or charged with a specified offence (s.31R(2) of the MFPA) or there is ‘specified evidence’ of domestic abuse. It would seem that the new provisions under the legislation are mostly going to apply in cases where either one or both parties are litigants in person and without an advocate.

The prohibition on cross-examination has informally been in practice for many years in family courts but by way of practice rather than law. Frequently, where the alleged perpetrator of domestic abuse does not have legal representation at fact-findings or final hearings, the court could take a number of approaches, often directing that the alleged perpetrator submit a list of questions he/she wishes to use as cross-examination. The judge might ask those questions on that person’s behalf or sometimes would allow the alleged perpetrator to ask questions from a vetted list.

Happily, the new provisions take us from the practice of the courts to a legal requirement that alleged perpetrators do not cross-examine alleged victims, and, in some cases, victims do not cross-examine alleged perpetrators. 

The prohibition applies where an alleged perpetrator has already been convicted, given a caution, or is charged with a specified offence; it also applies to cases where there is an on-notice protective injunction in force against the alleged perpetrator.

But what if none of these apply?

Section 31T provides the answer: if a person adduces ‘specified evidence’ that they have been the victim of domestic abuse then the prohibition of cross-examination applies. Subsection (3) states “’specified evidence’” means evidence specified, or of a description specified, in regulations made by the Lord Chancellor.” Meanwhile, subsection (4) provides that “regulations under subsection (3) may provide that any evidence which satisfies the court that domestic abuse, or domestic abuse of a specified description, has occurred is specified evidence for the purposes of this section."

Currently, there has been no regulation from the Lord Chancellor which defines 'specified evidence'.

If all the above fails, and neither of the above applies to you or your client’s case, all hope is not lost. The court may still prohibit a party from cross-examining a witness in family proceedings under s.31U on the basis of the impact questioning would have on the quality of evidence or the alleged victim’s distress. In reality, it seems likely that the majority of cases where cross-examination is prohibited will be on the basis of s.31U. which provides:  

Direction for the prohibition of cross-examination in person: other cases

(1) In family proceedings, the court may give a direction prohibiting a party to the proceedings from cross-examining (or continuing to cross-examine) a witness in person if—

(a) none of sections; 31R to 31T, operate to prevent the party from cross-examining the witness, and

(b) it appears to the court that—

(i) the quality condition or the significant distress condition is met, and

(ii) it would not be contrary to the interests of justice to give the direction.

(2)The “quality condition” is met if the quality of evidence given by the witness on cross-examination—

(a) is likely to be diminished if the cross-examination (or continued cross-examination) is conducted by the party in person, and

(b) would be likely to be improved if a direction were given under this section.

(3) The “significant distress condition” is met if—

(a) the cross-examination (or continued cross-examination) of the witness by the party in person would be likely to cause significant distress to the witness or the party, and

(b) that distress is likely to be more significant than would be the case if the witness were cross-examined other than by the party in person.

Lastly, in all decisions the court makes under these provisions it must decide whether there is a satisfactory alternative means for a witness to be cross-examined in proceedings, or obtaining evidence that might have been given under cross-examination. If the court decides there is not, the court must (a) invite the party to the proceedings to arrange for a qualified legal representative to act for the party for the purpose of cross-examining the witness, and (b) require the party to the proceedings to notify the court, by the end of a period specified by the court, of whether a qualified legal representative is to act for the party for that purpose.

If the party notifies the court, they have not been able to instruct a qualified legal representative to conduct cross-examination and the court deems it necessary in the interest of justice for a witness to be cross-examined the court must appoint a qualified legal representative.

Who pays for the costs of a qualified legal representative? Well, the provisions state that the Lord Chancellor may by regulations make provision for the payment out of central funds of sums in respect of a qualified legal representative.

In July 2020, the Ministry of Justice opened its registration for its Domestic Abuse Advocacy Scheme but an article published in July 2022 in the Law Gazette expressed some concern that there will be insufficient advocates to undertake the work.

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