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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> H v L [2006] EWHC 3099 (Fam) (07 December 2006) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2006/3099.html Cite as: [2006] EWHC 3099 (Fam), [2007] 1 FCR 430, [2007] 2 FLR 162 |
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MR. JUSTICE RODERIC WOOD
This judgment is being handed down in private on 7th December 2006. It consists of 9 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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Re: H |
(Applicant) |
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- and - |
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L |
(1st Respondent) |
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R |
(2nd Respondent) |
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Ms. Sophia Cannon for the 1st Respondent
Mr. John Church for the 2nd Respondent
Mr. Deiniol Cellan-Jones (Instructed by the Treasury Solicitor) as advocate to the Court
Hearing dates: 22nd to 24th November 2006
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Crown Copyright ©
Mr. Justice Roderic Wood:
The Issue:
General Principles:
"Article 6 (1) In the determination of his Civil rights and obligations, or of any Criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
(3) Everyone charged with a criminal offence has the following minimum rights:
(c) To defend himself in person or to legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) To examine or have examined witnesses against him .." (emphasis supplied).
"There are cases, particularly with children where a good video interview or a good audio interview will be accepted by the court in lieu of the child giving evidence because it is not the practice to ask children to give evidence in these care proceedings."
"It is not the practice to protect adults. Some adults may need protection and therefore, exceptionally, there may be an adult who does not give evidence but whose statement may be acceptable to the court. That will be a rare occurrence. Normally the court will expect adults to give evidence and at least to give a statement."
"No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either
(a) in connection with that offence, or
(b) in connection with any other offence (of whatever nature) with which that person is charged in the proceedings."
As Lord Bingham LCJ. said in Milton Brown:
"When the defendants represent themselves in criminal trials problems regularly arise. Such defendants lack the knowledge of procedure, evidence and substantive law; that appreciation of relevance; that ability to examine witnesses and present facts in an orderly and disciplined way; and that detachment which should form part of the equipment of the professional lawyer. These deficiencies exist even where a defendant attempts to represent himself in all good faith. But the problems are magnified one hundred-fold where the defendant is motivated by a desire to obstruct the proceedings or to humiliate, intimidate or abuse any one taking part in it."
"(1) This section applies where an accused is prevented from cross-examining a witness in person by virtue of section 34, 35 or 36.
(2) Where it appears to the court that this section applies it must
(a) invite the accused to arrange for a legal representative to act for him for the purpose of cross-examining the witness; and
(b) require the accused to notify the court, by the end of such period as it may specify, whether a legal representative is to act for him for that purpose.
(3) If by the end of the period mentioned in sub-section (2) (b) either
(a) the accused has notified the court that no legal representative is to act for him for the purpose of cross-examining the witness, or
(b) no notification has been received by the court and it appears to the court that no legal representative is to so act,
the court must consider whether it is necessary in the interests of justice for the witness to be cross-examined by a legal representative appointed to represent the interests of the accused.
(4) If the court decides that it is necessary in the interests of justice for the witness to be so cross-examined, the court must appoint a qualified legal representative (chosen by the court) to cross-examine the witness in the interests of the accused."
Civil Jurisdiction:
The Options:
The 9.5 Guardian:
CAFCASS Legal:
The Official Solicitor:
"Again in the absence of any other willing and suitable person, the Official Solicitor will act as Next Friend or Guardian ad Litem of a child party whose own welfare is not the subject of family proceedings (Family Proceedings Rules 1991, Rule 2.57, Rule 9.2 and Rule 9.5). The most common examples will be:
(c) A child witness to some disputed factual issue in a children case and who may require intervener status. In such circumstances the need for party status legal representation should be weighed in the light of Re H (Care Proceedings; Intervener) [2000] 1 FLR 775".
It is clear from the facts of the case I am considering (and ones where this issue arises) that neither of these provisions is relevant.
The Free Representation Unit:
The Attorney-General:
"(3) A court may properly seek the assistance of an advocate when there is a danger of an important and difficult point of law being decided without the court hearing relevant argument. In those circumstances the Attorney-General may decide to appoint an advocate of the court.
(4) It is important to bear in mind that an advocate to the court represents no one. His or her function is to give to the court such assistance as he or she is able on the relevant law and its application to the facts of the case. An advocate to the court will not normally be instructed to lead evidence, cross-examine witnesses, or investigate the facts. In particular, it is not appropriate for the court to seek assistance from an advocate to the court simply because a defendant in criminal proceedings refuses representation."
As can be seen from paragraph 4, there is an explicit inhibition on the provision of an advocate ("normally") to cross-examine witnesses.
The Judge:
"The trial judge's duty is to ensure to the utmost of his ability that the defendant, even if unrepresented, or perhaps particularly if unrepresented, has a fair trial. Every defendant is not guilty until proved to be so. Where, for example, a defendant is accused of rape, the trial cannot be conducted on the assumption that he is a rapist and the complainant a victim, since the whole purpose of the proceeding is to establish whether that is so or not. In the context of section 34A guidance was given by this court in R v DeOliveira (15 November 1996) where Rose LJ. said:
'When the situation arises in which an unrepresented defendant is statutorily prohibited from cross-examining, it will generally be desirable that the trial judge should ask such questions as he sees fit, to test the accuracy and reliability and the possibility of collusion between the prosecution witnesses'.
Without either descending into the arena on behalf of the defence or, generally speaking, putting any sort of positive case on behalf of the defence, this is a difficult tight-rope for the trial judge to walk. However, he must do his best according to the circumstances of the particular case.
It is also open to the judge in an appropriate case to ask a defendant whether there are matters which he wishes to have put to a witness. However, it would be for the judge to decide whether and how to put questions in relation to those matters. In the present case, the judge, in the course of submissions before the trial, correctly characterised himself as a transmission channel rather than a defence advocate so far as the questioning of witnesses was concerned
If a judge follows these necessarily general precepts, this Court will be very slow to interfere. It should of course also be borne in mind that there is a heavy duty on prosecuting counsel, which particularly arises where a defendant is unrepresented, to be scrupulously careful in the way in which the case is presented, so that no unfair prejudice against the defendant can arise from the manner in which the trial is conducted."
The Desirable Solution:
This is my Judgment