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Tag Archives: cross examination

Cross-examining alleged victim without a lawyer

 

Readers may remember a long-running issue about the fact that in crime, an alleged perpetrator of rape is banned from cross-examining the alleged victim whereas we have ended up in private family law of that being something that is not only not banned but cropping up more and more as an issue, because the Government cut legal aid.  Readers might also remember that following a campaign in the Guardian, the Lord Chancellor at that time declared that legislation would be introduced to fix that problem. The draft legislation was drawn up, and then the Government decided to embark on the Greatest Political Idea of All Time TM, in which in order to increase their working majority, they held an election years early and converted said working majority into a hung Parliament.

I’m afraid that I can’t see the draft legislation now for all of the long grass that it is hiding within. Anyone in the Press want to remind the Government that they promised to fix this mess and haven’t?

 

Apologies in advance for pedants – the law report uses McKenzie Friend and MacKenzie Friend completely interchangeably and nobody in the Court of Appeal seems to have corrected this.  It should be Mc, NOT Mac.  /Furiously checks document

This is an appeal where the father in a set of private law proceedings was accused of having raped the mother and he denied it. He did not have a lawyer, but did have a McKenzie Friend. Should the McKenzie Friend have been given rights of audience and allowed to cross-examine the mother?

 

 

Panini McKenzie Friend stickers album – “Got, got, need, got, oh NEEED”

 

(actually, the sticker should have been one of Duncan’s friends, not Mr McKenzie himself….)

 

Re J (Children) 2018

http://www.bailii.org/ew/cases/EWCA/Civ/2018/115.html

  1. There was no objection to the father having the assistance of a Mackenzie Friend and no objection to the identity of the particular Mackenzie Friend involved who, indeed, the judge described as “obviously a very experienced Mackenzie Friend”. The issue related to what, if any, rights of audience the Mackenzie Friend might be afforded.
  2. It is now well known that difficulties exist where challenge is made by a litigant in person, who is identified as the perpetrator of serious abuse, and that challenge falls to be put in cross-examination to the key witnesses who support those allegations. The case law on this topic was developing during the currency of the present proceedings and, by July 2015, this court had given judgment in the case of Re K and H (Children) [2015] EWCA Civ 543 which rejected the suggestion that there was jurisdiction in the court to direct that HMCTS, or indeed any other agency, should provide public funding for limited legal representation. HHJ Allweis noted that decision and rehearsed the key details of it in his short judgment. He noted that ‘the case is a difficult one in which, in extremely broad terms, the parents make serious allegations against each other’. He focused upon the application for rights of audience for his McKenzie Friend made by this father in these proceedings at paragraph 15 of that judgment in these terms:
    1. “15. The idea of a McKenzie Friend, however articulate and experienced, either cross-examining a parent accusing a partner of serious sexual violence or indeed serious physical violence, or even of cross-examining the parties’ 16 year old child if in due course X gives evidence against his father, is highly unpalatable and this court would be very disturbed by that prospect. [The McKenzie Friend] has suggested that he has been given rights of audience frequently by judges and I pressed him as to whether this had ever happened in Greater Manchester. In effect he said that it had not and that there may be geographical differences. I told him in no uncertain terms that I have never come across it in Greater Manchester and this court, of course, is one of the busiest, if not the busiest, family court in the country.”
  3. The judge then reminded himself of the relevant practice guidance on McKenzie Friends ([2010] 2 FLR 962), in which the President, at paragraph 4, states that McKenzie Friends may not, inter alia, “address the court, make oral submissions or examine witnesses”.
  4. The judge refused the application saying:
    1. “19. At the end of the day, for the reasons I have given, the application is refused. I contemplate with profound disquiet, and that is putting it pretty mildly if I may say so, the prospect of a McKenzie Friend, in effect with rights of audience, cross-examining a mother in relation to serious and complex allegations, let alone a teenage child of the parties if and when X gives evidence so the application is refused.”

 

 

What ended up happening in the case is that the finding of fact hearing never took place, because of the anxieties the Court had about how the mother could be questioned about these events. By the conclusion of the private law proceedings, the children were expressing very strong views about their father

 

  1. The judge provided an extensive summary of the NYAS worker’s report which recorded that the children were “extremely loyal to their mother” and adamantly against contact. So far as A is concerned the judge said:
    1. ‘A gave [NYAS worker] a statement he had prepared and said no-one had read. He would be delighted to give evidence against his father. Despite what he said, it appeared later in the report that the children, which really means A and B, had written at the suggestion of their mother acting on advice from her solicitor. … What I do note is that A’s statement … even assuming that what A was saying factually was true, is a very disturbing document to read. It has the imprint of his mother’ accusations. However, even allowing for the possibility of him imbibing unquestioningly all his mother had said, he nevertheless presents as an intelligent and fiercely independent young man’.

The judgment continues by describing the content of the statement the force of A’s negative opinion of the father that is expressed within it, before recording the judge’s overall opinion that the statement

‘is an extremely distressing read – I am not sure I have seen such a vitriolic condemnation of a parent by a teenager for many a long year.’

  1. The judge’s detailed summary of the children’s wishes and feelings, as described by the NYAS worker, continued by setting out B’s wishes, which were in line with his older brother. The youngest child, C, was also ‘clear that she did not want to see’ her father. The judge’s account of her wishes includes the following:
    1. ‘She wrote that she wanted all the bad things dad had caused to go away. She wished they had never gone to the refuge and she wished she did not have nightmares about dad. She did not want to see him EVER (ever in capital letters). No-one could drag her kicking and screaming to see her father. On the second visit she was even more emotional and angry.’

 

At the Court of Appeal, the father had the assistance of his McKenzie Friend and the Court of Appeal were complimentary about the help that the McKenzie Friend had given to the Court.

 

  1. For some time now the Court of Appeal has normally granted rights of audience to a bona fide McKenzie Friend. The experience of doing so has been very largely positive in that those McKenzie Friends who have taken on the role of advocate have done so in a manner which has assisted both the court and the individual litigant, as, indeed, was the case in the present appeal. Although it may have become the norm at this appellate level to grant rights of audience, that should not greatly impact upon the altogether different issue of rights of audience at first instance, particularly in a fully contested hearing. Assisting a litigant to marshal and present arguments on appeal is a wholly different task from acting in the role of counsel in a trial.

 

The Court of Appeal recognised the vexed issues that this case threw up.

 

  1. Direct questioning of an alleged victim by the alleged perpetrator has long been considered to be a highly undesirable prospect by family judges. It was contemplation of that process which led Roderic Wood J to flag the problem up in the first place in H v L & R. In Q v Q and in Re K and H, the need to look for alternative acceptable means for cross examination led to the court sanctioning orders against HMCTS. It is clear that the experience of those judges who have felt forced to permit direct questioning from an alleged abuser is extremely negative. In very recent times Hayden J, in Re A (above) has concluded that, following his experience in that case, he is not prepared to contemplate repeating the process in any subsequent case. Hayden J’s clear and eloquent observations deserve wide publication:
    1. ’57. As I have made clear above it was necessary, in this case, to permit F to conduct cross examination of M directly. A number of points need to be highlighted. Firstly, F was not present in the Courtroom but cross examined by video link. Secondly, M requested and I granted permission for her to have her back to the video screen in order that she did not have to engage face to face with F. Thirdly, F barely engaged with M’s allegations of violence, choosing to conduct a case which concentrated on undermining M’s credibility (which as emerges above was largely unsuccessful).

58. Despite these features of the case, I have found it extremely disturbing to have been required to watch this woman cross examined about a period of her life that has been so obviously unhappy and by a man who was the direct cause of her unhappiness. M is articulate, educated and highly motivated to provide a decent life for herself and her son. She was represented at this hearing by leading and junior counsel and was prepared to submit to cross examination by her husband in order that the case could be concluded. She was faced with an invidious choice.

59. Nothing of what I have said above has masked the impact that this ordeal has had on her. She has at times looked both exhausted and extremely distressed. M was desperate to have the case concluded in order that she and A could effect some closure on this period of their lives and leave behind the anxiety of what has been protracted litigation.

60. It is 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. This may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.’

  1. Hayden J’s words demand respect, both because they come for a highly experienced family lawyer and judge, but also because of the force with which they were expressed following immediately upon first-hand experience of observing an alleged victim being directly cross examined by her alleged perpetrator and despite the significant degree of protection the court had sought to provide for her.

 

 

In deciding whether the Judge was wrong to refuse the McKenzie Friend rights of audience to conduct the cross-examination of the mother, the Court of Appeal decided that he was not

 

  1. In between the option of direct questioning from the alleged abuser and the alternative of questioning by the judge sits the possibility of affording rights of audience to an alleged abuser’s McKenzie Friend so that he or she may conduct the necessary cross examination. The possibility of a McKenzie Friend acting as an advocate is not referred to in PD12J and, as has already been noted, the guidance on McKenzie Friends advises that, generally, courts should be slow to afford rights of audience. For my part, in terms of the spectrum of tasks that may be undertaken by an advocate, cross examination of a witness in the circumstances upon which this judgment is focussed must be at the top end in terms of sensitivity and importance; it is a forensic process which requires both skill and experience of a high order. Whilst it will be a matter for individual judges in particular cases to determine an application by a McKenzie Friend for rights of audience in order to cross examine in these circumstances, I anticipate that it will be extremely rare for such an application to be granted.

  1. For the reasons that were given earlier, if the complaint in Ground ‘B’ is that the McKenzie Friend should have been permitted rights of audience in order to cross examine the mother and A, I do not consider that the judge’s decision is open to challenge on any basis. Such an application should rarely, if ever, be granted. The material before us falls short of establishing that there was a blanket policy in place in Manchester prohibiting the grant of rights of audience to McKenzie Friends to cross examine key witnesses. If the judge’s observations are no more than a report that, from his knowledge, such an application had never been granted in Manchester, then, on the basis of the view that I have expressed, that would not be surprising.
  2. If, on the other hand, the judge can be taken to have refused any rights of audience to the McKenzie Friend, on the basis that the local practice was never to grant any form of rights of audience, then, again for the reasons that I have given, the judge was in error. Each application for rights of audience should be determined on the basis of the specific factors that are in play in the individual case. Rights of audience may be granted for a particular hearing, or for a discrete part of a particular hearing, and a blanket policy of never granting such rights is not supported by the Practice Guidance or generally. Whilst it will be rare for full advocacy rights to be granted at a sensitive fact-finding trial, it may be an altogether different matter to permit a McKenzie Friend to address the court at a directions hearing.

 

The Court of Appeal did, however, find that the Court was wrong not to have resolved the factual dispute between the parties at a finding of fact hearing.  The appeal succeeded on that basis.

 

However, it was a pyrrhic victory, because the Court of Appeal ruled that because the children were still of the same strong views about contact as they had been 18 months earlier they saw no prospect of father re-establishing any contact (the children were now 16 and 11) and did not order a re-hearing.

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Vulnerable witnesses and parents article 6 rights

 

 

This is a big case anyway, but it particularly struck a chord with me having heard Penny Cooper speak very eloquently at the Westminster Policy Forum yesterday on the shabby way vulnerable witnesses are treated in care proceedings as compared to criminal proceedings.

 

The Court of Appeal in Re J (A child) 2014 overturned a finding of fact by Pauffley J that a vulnerable witness X had been sexually abused by the father in private law proceedings. This had become pertinent in the private law proceedings because X had contacted the mother and told her, and the mother had decided that if what X said was true, the mother didn’t want father around the children.

http://www.bailii.org/ew/cases/EWCA/Civ/2014/875.html

 

The witness in question, X, had been the subject of litigation that went all the way up to the Supreme Court, on the issue of whether father was entitled to see the details of what the allegations were, you may remember it

 

Re A (a child) 2012   http://www.bailii.org/uk/cases/UKSC/2012/60.html

 

The lawyer representing her, Sarah Morgan QC was arguing there that the prospect of X giving evidence in her circumstances was so traumatic that it amounted to an article 3 inhuman and degrading treatment breach.

 

The expert evidence about X was this

“It is my opinion that disclosure of the social services records regarding X to other parties would be potentially detrimental to her health. As above, she appears to manifest psychological distress in physical terms both through medically unexplained symptoms and through the well recognised exacerbating effect of stress on a particular medical disorder. Her physical health has deteriorated considerably recently and, at times, has deteriorated to the point of being life-threatening. There is therefore a significant risk that exposure to further psychological stress (such as that which would inevitably result from disclosure) would put her at risk of further episodes of illness. It would also be working against the current therapeutic strategy of trying to help minimise stress and engage with psychological therapy.”

The Supreme Court didn’t go that far, but were sympathetic

 

This was what happened in relation to X’s evidence at the finding of fact hearing.

 

  1. In the light of the advice of Dr B, X gave evidence in the proceedings over a video link. Throughout she was supported by a trained registered intermediary who sat in the video room with her. It was planned that X would give oral evidence over the course of the Monday and the Wednesday during the first week of the hearing. However, for much of the morning of the first day X felt unable to contemplate answering questions and required discussion with and encouragement from her legal team assisted by the intermediary. Her evidence in chief, which was punctuated by breaks to enable X to re-gather her confidence, occupied the remainder of the first day and much of her second day in the witness box. Frustratingly, the first day of evidence coincided with what the judge described as “quite appalling noise disturbance” coming from road-works outside the video room window.

     

  2. During the morning of the second day a further difficulty occurred. One of the clear ground rules established for the giving of X’s evidence was that at no time should F see X on the television screen. F failed to abide by this ground rule and, on being spotted by the judge craning forward to see X, the evidence was abruptly curtailed. The effect of this event upon X is described by the judge as being “considerable” and that “thereafter, progress was painfully slow”. In the event the judge decided that F should leave the court room. However, by that stage X had become distraught and had locked herself in the lavatories in the court building and was refusing to come out. The court therefore adjourned for the rest of the morning hoping that X’s testimony could be resumed after lunch. X’s evidence in chief then continued until shortly before 3.30 p.m. Thereafter, following a short break, counsel on behalf of F cross-examined for something short of one hour. At 4.25 p.m. the judge concluded the process for the day and also concluded that “it would have been inhuman to have required X to return for a third day”. Cross-examination on behalf of F was thereby cut short and ended at that point. There was also no cross-examination on behalf of the guardian.

 

Clearly the process was pretty ghastly, and also it is clear that the father did not get to have all that he wanted to put to X in cross-examination put to her.

 

This is what Pauffley J said about X’s evidence

 

  1. Under the related heading of “X’s presentation at this hearing” the judge went on to describe X’s presentation during her evidence in striking terms:

     

    “I should say at once that I have never before witnessed anyone of any age demonstrate such emotional turmoil and distress whilst participating in a court hearing. If one phrase encapsulates the whole experience, it is that watching and listening to X was harrowing in the extreme.”

  2. That observation, coupled with the detailed description that the judge gives in the ensuing paragraphs, is a matter to which I give the greatest regard. This court frequently, and rightly, reminds itself of the substantial premium that must attach to the analysis of a trial judge who has had the experience, not available to those who sit on appeal, of observing the key witnesses give their testimony live at the court hearing. When the judge in question is a tribunal of the experience and standing of the judge in the present case, the level of respect and the premium that attaches to her observations must be of the highest order.

 

When a High Court family Judge describes hearing evidence as harrowing in the extreme, that is not something one can take lightly. The tolerance that High Court judges have for hearing things that would make most people faint or run out of the room to avoid is very high indeed.

 

Sarah Morgan QC described the process of X’s evidence like this

Miss Morgan submitted, and I readily accept, that the transcript of X’s evidence gives no real impression of the quality of her presentation over the video link. She told the court, and again I accept this, that this case was one that would stay in the minds of all of the professionals who had been in the court room “for decades”.

 

The whole thing was rather compounded by the father not being able to get legal aid, for one reason or another, and then that the barrister paid for by the Local Authority to represent him  (as the alternative would have been him cross-examining X himself) not realising until very late on that she was in conflict and someone fresh having to pick up the papers.

 

During the fact finding hearing, the Guardian’s team took on an almost amicus role to assist with this, putting both sides of the case and making extremely detailed submissions of the pros and cons of the evidence and the considerations that the Judge had to make.

 

And did so similarly at the appeal

On behalf of the children’s guardian Mr Paul Storey QC and Ms Camille Haboo have, through their submissions, continued to provide the court with assistance which is of the highest quality. At the stage of the conclusion of their written submissions they retained a neutral position as to the outcome of the appeal. Their helpful oral submissions included the following points:

 

a) In a case where there is no direct physical evidence or other clear “diagnostic” proof of sexual abuse, the process of judicial evaluation requires great subtlety;

b) There was an inevitable imbalance in the court process as a result of the inability of any party to cross-examine X;

c) There was a need for the judge, who obviously found X to be a very impressive witness, to exercise caution in relying upon such an impression where the full process of ordinary forensic evaluation has not been seen through;

d) Where, as here, the process of cross-examination has been halted, it is incumbent upon a judge to explain the approach that she has adopted to that factor in her overall evaluation. That is especially the case where the alleged perpetrator is a litigant in person for much of the hearing;

e) The fact that F was a litigant in person meant that he had no one to call him to give evidence in chief, he had to undertake his own closing submissions and was therefore much more on display before the judge than would be the case if he were represented.

 

 

Where the Court of Appeal were critical of Pauffley J was that in her analysis of the factors, all of them were factors which were supportive of the findings being made and none setting out that counterbalance of the reasons not to make the findings and particularly not the difficulty in X’s evidence and the risk of placing weight on the emotional content and impact on it over and above the forensic issues.

 

  1. Despite the very valuable support given to X by NM, a registered intermediary, who was described by Pauffley J as extremely impressive, it is clear that X found the process of discussing these matters to be highly distressing. As I have explained, her evidence was halting, truncated by the need for breaks and, in the end, concluded in the early stages of questioning on behalf of F.

     

  2. Within this appeal, no criticism has been made of the sequence of decisions which led to the choice of these particular arrangements, as opposed to other less direct methods, for the court to receive evidence from X. As Baroness Hale explains, in any case there will be a scale of options, running from no fresh input from the witness into the proceedings, through written answers, video-recorded questioning by trained professionals or live questioning over a video-link, to full involvement via oral evidence given in the normal forensic setting. The aim, again as Baroness Hale says, is to enable witnesses to give their evidence in the way which best enables the court to assess its reliability. It must be a given that the best way to assess reliability, if the witness can tolerate the process, is by exposure to the full forensic process in which oral testimony is tested through examination in chief and cross-examination. Just as the sliding scale of practical arrangements rises from ‘no fresh involvement’ to ‘the full forensic process’, there will be a corresponding scale in which the degree to which a court may be able to rely upon the resulting evidence will increase the nearer the process comes to normality. In each case, where a vulnerable witness requires protection from the effects of the full process, it will be necessary for the court to determine where on the scale the bespoke arrangements for that witness should sit with a view to maximising the potential reliability of the resulting evidence, but at the same time providing adequate protection for the particular vulnerabilities of that witness.  
  3. Where special measures have been deployed it is, however, necessary for the judge who is evaluating the resulting evidence to assess the degree, if any, to which the process may have affected the ability of the court to rely upon the witness’ evidence. Where, for example, the witness has simply been unable to play any active part, the court will be required to fall back upon hearsay records of what has been said outside the court context on earlier occasions and without any challenge through questioning.  
  4. In the present case it is clear that even the process of X giving evidence in chief encountered a range of difficulties, some entirely outside the court’s control, which made progress painfully slow and, at times, came to a halt. Cross-examination was very limited and was, for good reason, brought to a premature conclusion. Despite these difficulties, which the judge describes in full, the judgment does not contain any evaluation of the impact that this compromised process had upon the court’s ability to rely upon the factual allegations that X made within her evidence as a whole. This was a case where, partly as a result of the limitations on her ability to give evidence in the normal court process and partly because of the difficulty in fully understanding what she was explaining, the court only experienced X’s account ‘through a glass darkly’ because of the number of filters (both psychological and forensic) in place between X and the judge. In assessing the reliability of X’s account it was, in my view, necessary to acknowledge these difficulties and give them appropriate weight within the overall analysis.

 

 

 

The Court of Appeal felt that they had to overturn the findings

  1. It is with the heaviest of hearts that I now contemplate the conclusion that must inevitably flow from the serious detriments that I have identified in the fact finding analysis conducted by Pauffley J in this case. My reluctance arises primarily from consideration of what must follow from a decision to allow this appeal, thereby setting aside the judge’s finding of sexual abuse. I have also, at every turn, been acutely aware of Pauffley J’s enormous experience of conducting these exquisitely difficult cases.

     

  2. Despite giving every possible allowance for the factors that I have identified which either support the judge’s finding, or properly caution against the appellate court from interfering with that finding, for the reasons that I have given, the judge’s determination cannot be upheld. In summary the factors that have led me to this view, taken together, are:  

    a) The only evidence of sexual abuse came from X’s accounts given in 2009/10, as confirmed by her to be true during oral evidence. No other evidence directly supported or corroborated X’s allegation of sexual abuse. The evidence around the ‘trigger event’ established that, in at least one central respect, X’s accounts in 2009/10 were not reliable. Whilst the unsupported testimony of a single complainant is plainly capable of establishing proof of what is alleged, where, as here, there were a number of factors that detracted, or may have detracted, from the degree to which reliance could be placed on X’s testimony, a finding of fact should only be made after those factors have been given express consideration and due weight in the judicial analysis.

    b) X’s emotional presentation in 2009/10 and over the video-link was a relevant factor, but the weight given to the emotional presentation was unjustified and was disproportionate in the absence of a corresponding analysis of the detail of what she was actually saying together by undertaking a process, similar to that presented on behalf of the guardian, of balancing the factors either for or against the making of a finding.

    c) Once it was established that the ‘trigger event’ of X informing M had never occurred, despite being reported by X on a number of occasions in 2009/10, it was necessary to conduct a full appraisal of the impact of that highly material change in X’s account.

    d) The judge’s conclusion that the ‘prohibitions’ went so far as to provide a ‘complete answer’ to the lack in X’s account of any of the detail identified by Mr Storey was a conclusion that was unsupported by any expert evidence and was not open to the judge. This is particularly as the ‘prohibitions’ themselves were shadowy and only partially understood.

    e) In the light of the expert evidence concerning the difficulty encountered in determining a psychological link to X’s physical symptoms, and, particularly where some of those symptoms may be consciously generated, great caution was needed before concluding that X’s account provided a reliable foundation for the finding of fact.

    f) The judicial analysis should have included assessment of the impact of the lack of any ABE interview and/or narrative statement in 2009/10.

    g) The judicial analysis should have included assessment of the impact of the, necessarily, limited forensic process around X’s oral evidence.

  3. In the circumstances, the appeal must be allowed and the judge’s findings of fact set aside.

 

 

Lady Justice Gloster went even further and accepted the submissions made by father that the process had been a breach of his article 6 rights

  1. However I should also add that I accept Ms Branigan’s submission (as referred to at paragraph 52 above) that the trial procedure, so far as F was concerned, was unfair to him.

     

  2. The allegations being made against him were extremely serious. If established they might well have led to him being deprived of contact with his daughter, to the possibility of criminal proceedings against him, and resulted in an indelible scar to his reputation and character, with potential consequences for his future employment and personal relationships.  
  3. Whatever the difficulties surrounding X’s position as a witness, F was nonetheless entitled to a fair trial of these allegations. For the following reasons, in my judgment he did not receive one:  

    a) First, there was no equality of arms. For various reasons, he received no legal aid, and the only legal representation which the local authority agreed to fund was a barrister solely for the anticipated 3 days of cross-examination of X and her mother (see paragraphs 17 and 18 above). This might be thought to have been designed more in order to protect X from direct cross-examination by F, than for the purpose of assisting F in the presentation of his case.

    b) Second, because of the conflict of interest problem (see paragraph 19 above) his counsel was instructed on absurdly short notice for what was, necessarily, going to be an extremely difficult cross-examination.

    c) Third, whilst one can readily understand the reasons why the judge terminated X’s cross-examination, the consequences of that decision so far as F was concerned were clearly highly significant. In my judgment the judge should, at the very least, have considered whether in those circumstances, where there had been no full or adequate cross-examination of X on behalf of F, it remained possible to reach any fair outcome of the determination of the issue so far as F was concerned.

    d) Finally, F’s exclusion from the court room when X was being cross-examined, meant that it was extremely difficult for him, when he came to make his final submissions, to know what X’s evidence had been. I find it difficult to understand how he was expected to have successfully deployed what his counsel may have told him about X’s evidence in his own final submissions as a litigant in person. Whatever the perceived egregiousness of F’s conduct in “craning his neck” to see X on the screen, I cannot believe that practical arrangements could not have been made which would have enabled him to remain in the court-room but nonetheless would have prevented him from repeating his attempts to see X on screen. To exclude a litigant in person from the courtroom in such circumstances was a very serious step.

  4. It is obviously important in trials with vulnerable witnesses that the trial process should be carefully and considerately managed in such a way as to enable their evidence to be given in the best way possible and without their being subjected to unnecessary distress. But that should not come at the price of depriving defendants and others, who claim that they have been falsely accused of criminal conduct, of their right to a fair trial in which they participate and a proper opportunity to present their case in accordance with natural justice and Article 6 of the European Convention on Human Rights.  
  5. It does not surprise me that, in the light of the history of this litigation, F has on occasions, as set out in paragraphs 133-136 of the judge’s judgment, expressed his dissatisfaction with the court process in strong, emotional terms. That should not, in my view, have been relied upon by the judge (as it apparently it was at paragraphs 133-137 of her judgment) as a basis for reaching adverse findings as to F’s credibility. It is not difficult to see, given the long history of this matter and the actual and potential personal consequences for F, why he might have found it difficult to refrain from making comments of this sort, or might have behaved in an inappropriate manner in what no doubt he perceived to be a hostile court environment.  
  6. Whilst I consider that the trial process was unfair to F, it is not necessary in the light of the Court’s main conclusion in relation to the inadequacy of the evidence upon which the judge based her conclusions, to consider whether this ground alone would have sufficed as a reason for allowing this appeal.

 

 

The question then arose as to what the Court of Appeal should do. The idea that the case would be reheard seemed deeply unattractive to everyone – I’m sure that the advocates involved did not relish the idea of taking X’s evidence again

  1. Finally, there is a need to determine whether a re-trial of the issue of sexual abuse should now take place. For my part, and in the light of the material to which this court has now been exposed in full detail, and even allowing the fullest justifiable weight to X’s demeanour, I do not consider that a finding of fact against F was open to the court on the evidence as a whole.

     

  2. It seems highly unlikely that X will be able to engage to a greater extent in the forensic process than she did before Pauffley J; indeed powerful submissions were made by Miss Morgan and by M to the effect that it would be abusive and/or untenable to expect X to take part in a further hearing.  
  3. In the circumstances, and whilst fully accepting that this leaves A, M, and indeed F, in the very difficult situation that M so clearly described, I consider that no greater clarity is likely to be obtained by a retrial and that this court should therefore now put a stop to the evaluation of X’s 2009/10 allegations within these proceedings.  
  4. As a result, the private law proceedings relating to A must now proceed on the basis that there is no finding of fact against F (arising from X’s allegations). The Family Court will therefore make any determination as to A’s welfare on the basis that F has not engaged in any sexually inappropriate behaviour with X.

 

 

This all leaves vulnerable witnesses very erm, vulnerable. X was about as vulnerable as anyone could get, as a reading of Re A would show – she was almost suicidal at the idea of father even seeing what she had said about him, let alone giving evidence. She had strong expert evidence about the harm that the process might do to her. I never felt reading Re A that she would get anywhere near to giving evidence.

But she did so, and the measures that the Court put in place still weren’t enough.

Adding what we know about X from Re A with the judicial comments that the process of her giving evidence was harrowing in the extreme almost turns your stomach, even at this remove.

And the remarks of Lady Justice Gloster even call into question whether a Court can safely make those protective measures without risking an article 6 breach.

 

So where does this leave a vulnerable witness who doesn’t have such a compelling and rich case as to vulnerability as X did here? I know that the President has been speaking about this issue, and I’m sure that some guidance is going to come our way. (For once, this is a piece of guidance that I will welcome, as I think Re J throws huge doubt on where a Judge should draw the line between protecting the witness and protecting the article 6 rights of those accused)

 

Farooqi Friday [It isn’t the art of examining crossly]

[I know, it’s Sunday, but I only just thought of the pun, and I can’t keep that back for another five days]. A correspondent pointed me towards R v Farooqi 2013 a few weeks back, and I found it very entertaining, but never thought I’d have a family law hook to hang it on – now I do, so thank you to the President for introducing me to a genuinely new experience – being pleased about something written in the View from the President.

If you yourself made it to the end of the View from the President Part Seven,

http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/view-7-changing-cultures.pdf

you will have seen the President discuss a criminal case, and as we know, there is quite a lot of “cross-pollination” between Views from the President and judicial decisions made by the President.  They flow into one another, so expect to see this find its way into a decision in due course.

Skilled advocacy has a vital role to play in the family courts as elsewhere. I stand by everything I said in Re TG (A Child) [2013] EWCA Civ 5.
May I, however, draw to the attention of advocates in the family courts,for it is surely as applicable in family courts as in criminal courts,
a point made by Lord Judge CJ in his very last judgment:
R v Farooqi and others [2013] EWCA Crim 1649, para 113:
“What ought to be avoided is the increasing modern habit of assertion, (often in
tendentious terms or incorporating comment), which is not true cross-examination.
This is unfair to the witness and blurs the line from a jury’s perspective between evidence
from the witness and inadmissible comment from the advocate. We withhold criticism of
[counsel]on this particular aspect of his cross-examination because he was following a
developing habit of practice which even the most experienced judges are beginning
to tolerate, perhaps because to interfere might create difficulties for the advocate
who has been nurtured in this way of
cross-examination. Nevertheless we deprecate the increasing habit of comment or assertion
whether in examination in chief, but more particularly in cross-examination. The place
for comment or assertion, provided a proper foundation has been laid
or fairly arises from the evidence,
is during closing submissions”.

If you are like me, you will have written numerous times in your notes of someone else’s cross-examination “Submissions”  (possibly adding an exclamation point, or tutting audibly).  I for one, am hoping that we end up in the sort of law court we all day-dreamed of whilst slogging through land law and easements  – of hopping up like a Jack-in-the-Box to shout “Objection” and “I move that that remark be stricken from the record” during your opponents questions , perhaps ending up with wearing a white suit and a bootlace tie, whilst pacing around the Courtroom during cross-examination and speaking in a Louisiana accent.

What is this Farooqi case all about then? Other than allowing me to make a cheap pun (and many would say that that were reason itself to admire the case)

http://www.bailii.org/ew/cases/EWCA/Crim/2013/1649.html

Well, it involves an appeal from a criminal case involving suspected terrorist activities, and the arrests were made largely as a result of intelligence gathered by undercover policemen (a topical issue for discussion, I wish I were a criminal lawyer so I could talk about it more in-depth). In essence, the problem in the case was the attempt by one defence counsel to run a defence of entrapment, which for complex reasons beyond the scope of this blog, wasn’t really open as a defence.  [I should point out, to be fair to counsel who is being criticised here, that the fundamental nature of the defence was that it had been the undercover officers who had made all the running, so there was a fine line to be trod about making that defence and running a defence of entrapment – it’s not a line I would have been able to tread so it has to be bourne in mind that this was a very difficult situation]

This led to these sorts of exchanges :-

(a) “Q. Well, what I suggest to you is this: that from at least mid January 2009, that that was your style? That you were trying to take advantage of Munir Farooqi’s good nature, so that you could do him harm by attempting to trick him into committing an offence. Is that right?

A. No, sir, it’s completely incorrect. I was playing the part of a role that I had been asked to do so, that had been authorised by a senior officer, and one of my objectives was to play the part of a vulnerable person with low social ties, and I did that throughout the course of the operation.

Q. And I suggest that in pursuit of conviction, while you have been in that witness box, it has been your purpose to deceive the jury by painting a false picture of your relationship with Mr. Farooqi. You have lied in short, is that correct?

A. It’s certainly not the case. I have sworn an oath. I am a professional undercover law enforcement operative, and in doing so, I have answered every question which I believe to be correct, which I have signed a statement to that effect.

Q. You are a professional law enforcement undercover officer?

A. I am a police officer. I am a professional police officer, yes.

Q. Yes, you are a professional liar, putting it bluntly?

A. I use tactics as such as an undercover law enforcement operative to carry out my role. Yes, I do lie in the role of an undercover law enforcement operative, but on this occasion I have sworn the oath and I have answered every question which I believe to be correct.

Q. So you deny both propositions I have been putting to you, that you have been attempting to trick him and that you have been lying on oath, so therefore I had better prove those propositions

(b) “Q. And over the next eight months you were going to encourage him at every opportunity to talk about his experience in Afghanistan, were you not?

A. No, sir, and I didn’t.

Q. And you and Simon were going to play word games with a man who was ignorant of the fact that he was in peril, in order to trick him to giving you some encouragement by way of document, advice or assistance?

A. I can only answer for myself, sir. I can’t answer for another undercover law enforcement operative, but in answer to your question, that’s no.

Q. And the purpose of that was to enable you to arrest him?”

(c) “Q: Now earlier on in my cross-examination of you, I drew your attention to the fact that some people feign difficulties, so that they can assault, rob or rape people who come to their assistance. What I am suggesting to you is you feigned inadequacy, in order that you could steal from Mr. Farooqi, in order that you could steal his liberty. Is that not right?

A. No, it isn’t, sir”

(d) “Q. And what I am suggesting to you is whether or not he was sending people or engineering for people to go abroad to participate in violent conflict, was a matter of no interest to you in late January of 2009. In late January of 2009 you were hell bent on tricking this man into committing an offence?..

Q. What, and we can trust you, can we?

A. Er, yes, fully.

Q. A professional liar?

A. Erm, I am not a professional liar.

Q. Right. Now I think we agree that you do tell lies professionally when you are engaged as an undercover officer?

Q. You were cynically exploiting the death of that man, in order to excite either hostile feelings or hostile words against the police, were you not?

A. No.

Q. So that it might be deployed later in evidence?

A. No.

Q. And it is as an example of many examples of how poisonous and devious you can be, seeking out your aims?

    1. The judge intervened during the cross examination on a number of occasions. Mr Bott refers to one example, during the cross examination of Simon on the 13 July 2011, which we set out in its context:

“Q: Well, you say to respect people’s human rights, but you never had any right to enter his premises, did you?

A. Er, yes, I did.

Q. How so?

A. He invited me in.

Q. He never invited you in?

A. I think you will find the first time I ever met Munir on the 4th of January, he invited me to come to his house for something to eat. He wrote his address down, he give me his telephone number.

Q. No, no, no, no, he never invited you?

A. He did.

Q. He invited the person you were pretending to be?

A. Which is me.

Q. He invited the person that was interested in Islam in.

J: Mr. McNulty.

LM: He invited the person who had a history of alcohol abuse in?

J: Mr. McNulty.

LM: My Lord. He never invited you in?

A. Erm, I was portraying to be a normal member of the public. If it wasn’t me that Munir had invited in and radicalised and encouraged to go and fight Jihad, it would have been another vulnerable member of the public from Manchester, so in respect of me attending his address, I feel that my main hope is that I have stopped a vulnerable individual from Manchester being radicalised by Munir and others.

Q. But you never believed for one second that if he knew who you really were you would be invited to his premises, did you?

A. Of course not.

Q. No?

A. If I told him I was a police officer, he definitely wouldn’t have invited me.

AE QC: My Lord.

J: Yes.

AE QC: My learned friend is misleading the jury about the law again.

J: Yes.

AE QC: Because what he is implying from his position as Counsel in his question is that the fact that the officer was going under an assumed alias, means that the invitation which was extended to him did not create a right to enter, and that is, I am afraid, not the law.

J: Of course. It —

AE QC: I am sorry about that, but it is just not.

J: Mr. McNulty, more than one member of the jury was actually shaking his or her head whilst you took this point.

LM: Well, let us see.

J: Mr. McNulty, I am not going to permit it. It is a complete waste of time. It is ill conceived in law, and please move on. He was perfectly entitled to enter those premises. Any suggestion that he was not is wrong in law.

LM: Well, then I suggest as a matter of fact you were no different to the man that pretends to come to read the gas meter, who is really there to steal the old lady’s pension?

J: No, Mr. McNulty. Mr. McNulty, that is exactly the same proposition put in a different way. He was entitled to enter those premises, and that is the end of the matter.

I don’t think I’ve ever enjoyed a sentence in a judgment (though the “finders-keepers” exchange in the Richard II burial judicial review comes close) as much as the Judge here saying “More than one member of the jury was actually shaking his head whilst you took this point”

And culminating in this, during defence submission – I didn’t think the suggestion was “thinly veiled” at all – it was pretty out and out.

Mr McNulty’s closing speech

    1. Mr McNulty made his closing speech to the jury over the course of three days, the 16th, 18th and 19th August 2011. Mr Bott describes it as a defiant and provocative speech which went well beyond anything that was professionally acceptable. A number of specific matters illustrate the submission.
    1. The speech began with what is described as a “thinly veiled” suggestion that the judge was biased in which Mr McNulty encouraged the jury to regard the judge as a salesman of worthless goods:

“After all when you meet with a salesman , he does not start off his sales patter by insulting you but…that does not mean what he is selling you is worth anything.”

    1. Secondly, from the outset Mr McNulty attacked the motives of the Crown and others concerned with the case and encouraged the view that the Crown was a politically motivated witch hunt. The judge and the Crown were depicted as the agents of a repressive state: the purpose of the Crown was to stifle Farooqi’s right to free speech. Other parties who did not agree with his approach, and their counsel were accused of sucking up to the Crown and the court.
    1. Thirdly, Mr McNulty misrepresented the evidence on a number of occasions. He repeatedly gave evidence himself on behalf of Farooqi, which was later summarised by the trial judge, and to which we refer later in this judgment. He made significant allegations that should have been but were not put to witnesses in cross-examination, in particular that the evidence against Malik had been contrived because the police had no evidence that Farooqi had influenced anyone except the undercover officers. This led to a number of interventions from the judge on the first afternoon, (at the end of which Mr Edis raised the propriety of Mr McNulty’s suggestion of judicial bias) and then again on 18th August when the judge said; “You are giving evidence that could have been given by your client and it must stop”. “This cannot continue.”
    1. Mr McNulty said he was addressing the issue of Farooqi’s intention, to which the judge said: “The way he tells us what his intention is by going into the witness box.”
  1. At the end of Mr McNulty’s speech, Crown counsel gave notice that they were considering making an application to discharge the jury. The judge responded that he was not surprised, and that he had been considering the possibility of doing so of his own motion. The court then adjourned whilst the Crown considered its position.

Last night a Re J saved my life… (I am so, so sorry)

 I could not resist, once it came into my mind. And those of you with a classical education are muttering, that the shabby pun doesn’t even work if you pronounce it “Ray J”  – so a double apologies to the Brothers of Boris.  

 

A discussion of the decision of the Court of Appeal in Re J (A child) 2012, and where the bright line falls in a Judge allowing a case to be put and curtailing cross-examination that they aren’t finding helpful.

 

The case can be found here:- http://www.bailii.org/ew/cases/EWCA/Civ/2012/1231.html

It is, sadly, once again, one of those private law cases that have gone on for nine years, without very much being resolved in any of that time.

 

I was counting the number of different judges that had dealt with interlocutory hearings, and reached ten.

It is little wonder, with such lack of judicial continuity, that the scale of the litigation and the need to grip it and reach a proper final conclusion wriggles away.

 

The point of appeal is interesting – the father’s case was in effect, that as we so often see, the pace of movement and progress on contact is dictated by the mother, who makes a series of objections that are never resolved in litigation but the case inches forward, bit by bit, always at the pace the mother is able to get away with. [I am not saying that this happens in all cases, or even a lot of cases, but I am certainly familiar with it happening in some. To avoid sexism, it is the person who has day to day care who tends to take this approach, I don’t think it is gender specific per se]

On cross-examining the mother about her various shifts in position and historical objections to contact – with a view to establishing that her current position was unreasonable, the father’s counsel was stopped by the Judge.

 

25. Realistically, if I may say so, Ms Thain did not press the first of the father’s two complaints on this part of his appeal. The key point, which she understandably put at the forefront of her submissions, was that the Recorder wrongly limited the ambit of the factual investigation upon which, as she would have it, Ms Holmes properly wished to embark in her cross-examination of the mother.

26. The matter arose in this way. In her application filed in October 2011 the mother, as we have seen, was opposed to anything other than supervised contact. By the time of the hearing in March 2011 the mother was expressing herself as being “happy” with unsupervised contact: this was the word she used (Transcript p 46) in answer to questions from the Recorder. Indeed, it seemed from her answers to the Recorder (see Transcript p 51) that she had no objection in principle to overnight contact. When Ms Holmes tried to put this change in her stance to the mother (Transcript p 61) she was stopped by the Recorder (Transcript p 62): “Do not answer this question … I say do not answer it because I do not see where it is going.”

When Ms Holmes tried to explain, the Recorder broke in: “do you really want the witness to rake over all her earlier concerns and worries?”

27. Ms Holmes persisted: “Your Honour the problem is … that repeatedly what the mother does is she makes allegations that stops contact, she then comes to court and makes … concessions in court that lead to a small step forward. The point I’m making is … that if we are going to have a stable regime of contact… that is going to last I think we need to get to the bottom of what the problems are because otherwise the worry the father has is we go away from here, two months down the line all the same allegations, and we come back to court again and we’re back to where we were, square one.”

The Recorder responded: “Well I think you will find that the court, at least this court, will want to move forward rather than to linger … I have to approach the case as it is today, the witness has said, and I am sure your client would want to move forward from where it is today rather than, as it were, have a kneejerk reaction … to kick it back to the order of District Judge Chandler in 2008.”

Ms Holmes then made a very pertinent point (Transcript p 63): “But Your Honour the reality is … that what she is proposing is that she dictates the way in which it moves forward. That she is saying it should move forward in this particular way only … when we have never actually established why the previous arrangements were wrong.”

She added: “But we’re now in a situation where the mother is determining that there should be a vast reduction from that level of contact. I’m trying to get to the bottom of why she feels that that is necessary.”

The Recorder then made his position very clear (Transcript p 62): “Well let me reassure you, you are not going to gain any mileage from this line of cross-examination and I am interested in looking forward and with that in mind do you have any further questions?”

28. Ms Holmes soldiered on for a while. As the short adjournment approached the Recorder said this (Transcript p 68): “I am going to curtail your cross-examination unless you want to investigate what would be more acceptable to [mother] otherwise we shall move straight to your client.”

Ms Holmes made clear (Transcript p 69) that: “if I am not able to explore [the allegations being made by the mother] then it does hamper my ability to be able to put my client’s case.” The Recorder was unmoved: “Well that may be but it seems to me we are where we are”.

29. In his judgment the Recorder acknowledged (Transcript para [3]) that he had not permitted cross-examination, as he put it, “going back into the mists of time”. He explained why: “it seemed to me … and it still seems to me, that the proper starting point for the hearing today is today.”

30. The point made by Ms Holmes in her skeleton argument and elaborated by Ms Thain in her oral submissions is simple and compelling. The Recorder concentrated on how things might move forward without questioning, or allowing counsel to question, how or why the current state of affairs had come about and whether the mother’s reasons for unilaterally varying the previous court order were justified. This, it is said, was particularly alarming given what Dr Little and Ms Coatalen had said in their earlier reports – material suggesting that there could be a pattern to the mother’s behaviour requiring investigation of the kind the Recorder refused to permit. In short, it is said, by restricting cross-examination of the mother the Recorder ensured that it would be impossible for him to carry out the task required of him and denied the father a fair hearing.

If I may say, I  very much like the cut of Ms Holmes’ jib here.

The Court of Appeal, unsurprisingly, took a dim view of the Judge’s view that the past was of no interest to him in making decisions about the future.

31. In my judgment the father’s appeal must be allowed on this ground alone.

32. The point is really quite short and simple. Of course the Recorder was right in saying that one had to look to the future: after all, his task was to determine J’s future living arrangements. And of course, in one sense, the Recorder was right to look at how matters stood on the day of the hearing: after all, things were as they were. But his error – and in my judgment he here fell into plain and obvious error – was in rejecting Ms Holmes’ entirely justified desire to explore the crucial question of why it was that things were as they were at the date of the hearing. The investigation – the cross-examination – that Ms Holmes wished to undertake was not something she wished to pursue Micawber-like in the speculative hope, absent any reason to believe so, that something might turn up. On the contrary, and as she explained to the Recorder, there were at least two things she wished to explore, and which in my judgment cried out for investigation: first, why the mother’s attitude had changed between October 2011 and March 2012; second, and even more important, why the arrangements agreed in January 2008 had not worked out and why the mother believed they needed to be changed.

 

33. The Recorder may have been right in doubting the utility of an investigation “back into the mists of time”, but this was not what Ms Holmes was suggesting and it was no answer to the need for a more focused investigation of the kind she wanted to undertake. As my analysis of the litigation shows, there was a very clear point in the past which was the obvious initial starting point for such an investigation: the order made by District Judge Chandler on 7 January 2008. Two things about that order are striking: first, it was made against the background of the concerning matters identified and considered by Dr Little and Ms Coatalen, and taking into account Ms Coatalen’s recommendations; second, it was an order made by consent and moreover, as the order itself makes clear, on an occasion when the mother was represented by counsel. Now of course in a case such as this a consent order does not have the same status as a consent order made in ordinary civil proceedings, but it was nevertheless entirely understandable that Ms Holmes should wish to probe with the mother why she no longer saw the order she had agreed to as being appropriate. Moreover, given what Dr Little and Ms Coatalen had said, Ms Holmes had every justification for wishing to explore whether the explanation for the mother’s change of view since January 2008 lay in those matters which had caused Dr Little and Ms Coatalen concern rather than in the explanations now being offered by the mother.

34. Whether it would have been appropriate for Ms Holmes to seek to push the investigation farther back into the past – even assuming she would have wanted to – was, I should add, not a matter calling for a ruling at the outset. It was a matter to be considered, if the need arose, in the light of how the preceding cross-examination had gone.

35. Of course, and even in a family case, a judge should stop irrelevant or time-wasting cross-examination. But a judge should always bear in mind that, however carefully he has read the papers beforehand, counsel is likely to have a better grasp of the inner forensic realities of the case. And a judge does well to think twice if, as here, his intervention is met by counsel standing her ground and carefully explaining why she wishes to cross-examine in a particular way, especially if, as here, counsel’s reasons have obviously been carefully considered and are not just ‘off-the-cuff’. Ms Holmes is to be congratulated for doing her duty, politely but firmly standing her ground and telling the Recorder plainly that his ruling was preventing her putting her client’s case. It is a pity that the Recorder did not, even at that point, see any reason to change his mind.

36. In my judgment, the effect of this was indeed, as submitted to us, to disable the Recorder from carrying out the task required of him and to deny the father a fair hearing. But I go further. To deny the father a fair hearing and a proper opportunity to put his case was also, of course, to deny J a fair hearing. And for the reasons given by McFarlane LJ it may also have meant that the mother’s case was not properly considered.

37. There is no way in which we can remedy things except by allowing the appeal and directing a re-trial at which those matters which the Recorder refused to consider can be properly investigated. In the circumstances the re-trial must be in front of a different judge.

 

The telling point here is that father’s counsel was able to set out the purpose of her cross-examination and that it had a relevant and pertinent aim and intention, and was not just a string of questions in the hope that something good might come out of it. Judges wishing to curtail cross-examination will need, as a result, to hear what underpins the questions; and counsel faced with potentially irascible tribunals will need to have at their fingertips an explanation of the strategic thrust of the topic and why it goes to the live issues in the case. [If they are not able to produce an answer to that readily, they perhaps shouldn’t be embarking on that line of questioning…]