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‘Helen Archer’ law must not forget alleged abusers

Barrister condemns routine use of terminology that fails to acknowledge presumption of innocence

15 February 2017

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The government’s proposed ban on the cross-examination of alleged victims of domestic abuse by the alleged perpetrators must protect the interests of both parties, family lawyers have said.

In a speech earlier this week the Lord Chancellor, Liz Truss, confirmed her commitment ‘to [ending] the appalling practice of domestic abuse victims being cross-examined by their attacker’.

The Ministry of Justice has confirmed that family court judges are to be given new powers to stop those accused of domestic assault from questioning complainants in court under a ‘Helen Archer’ law.

Primary legislation will allow judges to appoint a legal aid lawyer to act on the accused’s behalf but how this will work in practice remains unclear.

Helen Greenfield, an associate solicitor at Family Law in Partnership, welcomed the decision to improve the protection given to domestic abuse victims but called for equal legal assistance to be given to both the complainant and the accused.

‘This new development is great news and another step towards recognising the importance of giving victims a voice in these difficult matters,’ Greenfield told Solicitors Journal. ‘It must be right that the court is able to balance the interests of both parties, continuing to afford procedural fairness to the alleged perpetrator while also protecting the interests of an alleged victim of domestic violence.

‘While this is unlikely to eliminate the trauma, intimidation, and distress already caused to victims, this step prevents the justice system from becoming a potential tool of further abuse.’

Last month, Sir Oliver Heald QC told the House of Commons that the MoJ was considering how to apply similar provisions to the family court as those currently available in criminal proceedings, where the accused is banned from cross-examining the witness.

However, Lucy Reed, barrister at St John’s Chambers and chair of The Transparency Project, told Solicitors Journal that simply trying to transpose a similar approach to the criminal court into the family court may not be straightforward.

‘Taken at face value the wording of the announcement by the lord chancellor means nobody accused of domestic abuse will be allowed to cross examine the person alleging abuse, regardless of how severe those allegations are and regardless of the subject matter. It’s unclear if that is really what’s meant.

‘We need to know a lot more about these proposals to be able to say whether they will cure the problems that have been identified (potential intimidation, retraumatisation, and perpetuation of abuse), and to ensure that they don’t create another problem in the form of injustice for those accused of abuse.’

Reed added that any scheme funding an advocate must do so properly and fairly to be effective, which includes payment for reading the documents, taking instructions, and for preparation at a rate that recognises the complexity of these types of cases.

Clarity is also needed on whether or not the proposed reforms will include representation just for the cross-examination or the whole case, which brings significant cost implications.

Speaking to the Observer, Harry Fletcher, director of the campaign group Voice4Victims, said: ‘The impact of cross-examining a person about their sexual history and the direct questioning of victims by domestic abuse perpetrators is intended to undermine the credibility of the victim and humiliate them.’

Fletcher’s comments were labelled as ‘dangerous scaremongering’ by Solicitors Journal columnist the Secret Barrister on Twitter.

Reed said Fletcher’s comments assumed the accused was in fact abusive, while ignoring the fact that many of those accused have little choice as legal aid is only available for the complainant.

‘The terminology used by both the lord chancellor and the majority of the recent coverage on this topic uses the terms victim and abuser/perpetrator, which creates an impression that all those potentially carrying out cross examination are guilty of the abuse they are accused of.

‘In fact the reason such cross examination in the family court is necessary is because the allegations are denied and the person accused has not been found guilty by a criminal court, and in some case they may be entirely innocent.

‘While some comments suggest that those accused are seeking to cross examine in order to humiliate or intimidate this assumes that they are in fact abusive (which may or may not be the case) and ignores the fact that many of those accused have little choice as legal aid is available for the complainant but not for them.’

Matthew Rogers is a legal reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress

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domestic abuse CROSS EXAMINATION