My Lords, I will start by making a general point about an issue that has been concerning me regarding the amendments on cross-examination on special measures. I apologise that I am not a lawyer, and if I have not quite have grasped what Committee stage is. I could have been jumping up to speak to all these amendments, so I have bundled my comments into one. I hope that will work. If I have got it wrong, I will not do it again.
I have found the noble Lord, Lord Paddick, hugely helpful and insightful throughout these Committee discussions, but something he said on Monday troubled me. He said:
“My Lords, for reasons of brevity and clarity, I will refer to the person to whom a domestic abuse protection notice is given as the ‘perpetrator’, rather than the ‘alleged perpetrator’ or ‘defendant’, and the person the notice seeks to protect as the ‘victim’, rather than the ‘complainant’, the ‘alleged victim’ or ‘plaintiff’.”
He went on to say:
“Clearly it will be for the court to decide, ultimately, whether they are in fact perpetrator and victim.”—[Official Report, 1/2/21; col. 1925.]
I understand entirely the noble Lord’s shorthand point, but I get anxious that sometimes, that sort of shorthand becomes the presumed fact or reality. That has been the case throughout Committee stage—nowhere more obviously than in the discussion about cross-examination —and I worry that that might prejudice justice and fairness in proceedings. As the noble Lord, Lord Paddick, rightly stated, it is up to the court ultimately to decide on guilt or innocence. It seems to me that cross-examination is a key part of making such weighty decisions. Testing the evidence thoroughly is very important, and demands for special measures for cross-examination should not compromise that.
We have already heard the way in which this can happen. We have heard the noble Lord, Lord Marks of Henley-on-Thames, say, in calling for special measures in an earlier set of amendments, that if a witness claims that they are frightened, this can be seen as sufficient reason to treat the alleged perpetrator as a perpetrator, and the alleged victim is secure in special measures. I just worry about a slippery slope. Because of the importance I place on cross-examination, in relation to the distinction between family courts and civil courts, I would actually prefer that a legal representative be appointed by both courts in order to facilitate the most objective and thorough cross-examination and to make sure that the evidence is objectively tested.
3.45 pm
Turning to this set of amendments and why we need special measures in civil courts, I just do not feel that this requires legislation. Interchangeability between civil courts and family courts will confuse things. The arguments in favour that have been advanced so far emphasise the witness’s vulnerability as a reason to bring into law the demand for special measures in civil courts. I worry about that emphasis on vulnerability, because this might become an overly deterministic label. Civil cases may be intimate and then, as indeed the Bill already states, the judge has discretion to act in relation to special measures. But as we have heard, civil cases may involve a multitude of different issues that arose many years later and do not directly concern either abuse or alleged domestic abuse. There is a danger here that we will always see the witness as a vulnerable victim, even if the argument is over something relatively trivial, such as property—which, of course, is not always trivial.
Domestic abuse can be traumatising but it can be overcome, and often is. Are people for ever to be victims and assumed to be traumatised in all contexts in perpetuity, in every single instance of a civil case in the courts? Surely, that would be disempowering. Ironically, it can re-victimise people—often women—by for ever seeing them as victims in need of protection and special measures. Conversely, even if a perpetrator is convicted, are they always to be seen as an abuser in all contexts in perpetuity, in every instance where they might find themselves in a civil court? We have already heard how important it is not to dismiss spent convictions under the headings of “patterns of behaviour” or “repeat offenders”. We must ensure, therefore, that we hold our nerve in not compromising on our commitment to drawing a line, and to the humane aims of rehabilitation. To go back to where I started, I support the noble Lord, Lord Paddick, on that issue.
I will be rejecting these amendments. The civil courts are distinct and different. Treating people who may well have been victims as perpetually victims in all instances does them no favours whatsoever.