New measures introduced under Domestic Abuse Act 2021: ban on perpetrators cross examining witnesses and victims.
This year there have been new measures that have commenced under the Domestic Abuse Act 2021 to assist victims and witnesses within family law proceedings. Under the new outline, perpetrators are no longer permitted to cross examine victims or witnesses of domestic violence in family matters. Instead, this will be done by court-appointed legal professionals to ensure that justice continues to be done fairly for both sides. The prohibition of cross examination has been introduced through an amendment to the Matrimonial and Family Proceedings Act 1984 by insertion of 31Q-31Z.
There are four circumstances whereby there is prohibition in cross examination under the Domestic Abuse Act 2021.
First, there is prohibition for cross examination by a party who has been convicted, cautioned or is charged with a specified offence. Also, victims or domestic abuse (or specific offence) are also protected from being cross examined from person who has been convicted, cautioned or charged with that offence. It is important to note that the specified offences will be defined in the regulation, which is not yet in place.
Secondly, any party subject to an on-notice protective injunction will be prohibited on cross examination. This also includes to those who are protected by an on-notice injunction. The definition of protective injunctions will be provided in due course within the regulation.
Thirdly, there is prohibition on cross examination where there is specified evidence of domestic abuse. The definition of what constitutes as specified evidence is yet to be provided within the regulation.
Fourthly, where none of the above listed circumstances applies, the Court will have the power to prohibit a party from cross examining a witness in person if the quality of condition or significant distress condition is met and it is not contrary to the interest of justice to give the direction.
The Court must be satisfied that the quality of evidence is likely to be diminished if cross examination in conducted by the party in person and the quality of evidence would be improved if the direction is granted under the required section. This would be enable the quality of condition criteria to be met.
Likewise, the criteria for significant distress condition would be satisfied where there is risk that cross examination would lead to significant distress to the witness or the party, and 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.
The Court will consider alternative means for the witness to be cross examined or obtained evidence that witness might have provided under the cross-examination. This will apply is the any of the above conditions have been satisfied.
Where there is no alternative, the Court is then required to invite parties to the proceedings to arrange for legal representation and to notify the Court at time specified by the Court. Where a party does not provide a legal representative to conduct the cross examination, then the Court will consider if it is necessary in the interest of justice for the witness to be cross-examined by a qualified legal representative appointed by the Court to represent the interest of the party. Thereon, it will then appoint a legal representative to conduct cross examination of the witness where there is interest of justice.
In criminal proceedings, the court is entitled to make an order preventing an unrepresented defendant to cross examine the alleged victim in person. However up until now, Judges can use their general case management powers to prevent a victim from being cross examined by the alleged perpetrator however were not able to appoint a legal representative to conduct the cross examination. Therefore, this new change has been welcomed and applauded by domestic abuse and children charitable organisations.