“‘Special measures’ and legal aid
Category (1) (above) represents the Truss review problem. This can be funded – now – from an existing certificate (Sch 1 paras 11-13). If para 11-13 legal aid is not available, then if A’s evidence is ‘diminished’ and a fair trial threatened, Art 6(1) is engaged; and s 10(3) may bite. Either way, can YJCEA 1999 s 38(4) be applied by analogy in family proceedings? And, if so, can it be funded by legal aid?
With CrPR 2015 Part 23, s38(4) provides a model for court advocate appointment. B has a fair trial: his ‘accuser’ is professionally cross-examined. The following argument can be tested in the Family Division, alongside Lady Hale’s Re W§ comments:
a High Court judge has inherent jurisdiction to regulate the court’s procedure;
justice would be promoted (perhaps only made possible: operation of YJCEA 1999 Part 2 readily attests to this) by a ‘s38(4)’ appointment
this assistance cannot now be funded direct from public funds (cf YJCEA 1999 s40)
with pro-active case management this can be done on legal aid certificate (either under a conventional Sch 1, or a s10(3), certificate).”
Cross-examination of victims of domestic violence
Women’s Aid and the Guardian are concerned about the lack of protection for victims of domestic violence in family courts where their alleged abuser is permitted to cross-examine them. This article develops some of the ideas touched on in my earlier Vulnerable witnesses, parties and children in family proceedings at https://dbfamilylaw.wordpress.com/2017/01/05/vulnerable-witnesses-parties-and-children-in-family-proceedings/. The wider problems of vulnerable witnesses and of children in family cases go much deeper than this, as will be explained. The question to be addressed here is: can these problems be helped by legal aid under the existing statute and common law? Sir James Munby P (or his Ministry of Justice draftsperson) thinks not. I think he – or the Ministry – may be wrong.
On 20 December 2016 the Ministry of Justice published a statement by Sir James which articulated ‘the pressing need to reform the way in which vulnerable people…
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