Cross-examination of Domestic Abuse Victims banned by Courts

Posted on July 26, 2022

As part of the Government's landmark Domestic Abuse Act 2021 solicitors are welcoming the fact there is now a legal bar on parties cross-examining each other where there is evidence of domestic abuse if certain circumstances arise.

In the past, it was potentially a very traumatic experience for an alleged victim to face being cross-examined by the perpetrator (their alleged abuser).

This was first introduced in criminal cases and as of the 21st July 2022 an alleged abuser can no longer cross-examine the victim in the family and civil courts if certain circumstances arise. Each case is different and the decision is made in the individual circumstances of the case where this situation has arisen.

Domestic Abuse Support

The overall aim is to support victims through the court process and make it less daunting. Other measures have included screens and separate entrances, to again minimise stress and help witnesses to give their best evidence.

The ban will only be applied in domestic abuse cases where there is

specific evidence of abuse between the perpetrator and the victim.
a conviction or protective injunction in place between thoses involved.

If one party is prevented from cross-examining another and states this is required to put their case, then it can be seen how this might then leave a gap in the evidence. The Government has decided that the way to resolve this long-standing difficulty is for suitable legal representatives to undertake this role and they be appointed by the parties or even the Court where this is required.

Rebecca Wolfenden, a Solicitor in our Family and Care team welcomed the change and said:

“It is very important for all parties to feel that they get a fair hearing and that their right to family life is also protected and this is a balance that has to be stuck.

We welcome these changes and feel that they will help alleged victims of domestic abuse involved in family proceedings feel more able to come forward and to let the Court know what they say they have suffered when it is relevant to the issues in their case.

Many people in the past may have felt too scared to do so if they knew that they would then be cross-examined by that person in effect suffering further trauma or abuse within the Court process itself”

What is the role of a legal representative?

The role of the qualified legal representative is substantially different from that of a lawyer instructed by a party and operates subject to specific limitations. This will happen automatically in certain situations:

In family proceedings, where a party has been cautioned for, charged with, or convicted of a specified offence against the victim or alleged victim, they cannot cross-examine in person the victim or alleged victim of that offence and vice versa (that is, if the victim or alleged victim is also a party, they cannot cross-examine in person the perpetrator).
In family or civil proceedings no party to the proceedings against whom an on-notice protective injunction is in force may cross-examine in person a witness who is protected by the injunction and vice versa (that is, no party to the proceedings who is protected by an on-notice protective injunction may cross-examine in person a witness against whom the injunction is in force).
In family or civil proceedings where specified evidence is put forward that a person who is a witness has been the victim of domestic abuse carried out by a party to the proceedings, that party to the proceedings may not cross-examine the witness in person and vice versa.

“It is hoped that this latest stage in making court a less frightening experience will help victims come forward without concern and fear and help the whole process move forward for the benefit of all those involved. Simply by having a qualified legal representative in place will lessen the distress and aid the interest of justice,” added Rebecca.

How can we help

If you or a family member is a victim of domestic abuse our family and care solicitors can help put things in place to protect you or your loved ones. Call our team today on 0161 785 3500 or email them at enquiries@pearsonlegal.co.uk

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

This blog was posted some time ago and its contents may now be out of date. For the latest legal position relating to these issues, get in touch with the author - or make an enquiry now.