Domestic Abuse Bill (HL Bill 124)

Domestic Abuse BillPage 40

  • “special measures direction” means a direction by the court granting
    special measures;

  • “specified offence” means an offence which is specified, or of a description
    specified, in regulations made by the Lord Chancellor.

5Prohibition of cross-examination in person

63 Prohibition of cross-examination in person in family proceedings

In the Matrimonial and Family Proceedings Act 1984, after Part 4A insert—

“Part 4B Family proceedings: prohibition of cross-examination in person
31Q 10Prohibition of cross-examination in person: introductory

In this Part—

  • “family proceedings” means—

    (a)

    proceedings in the family court,

    (b)

    proceedings in the Family Division of the High Court
    15which are business assigned, by or under section 61 of
    (and Schedule 1 to) the Senior Courts Act 1981, to that
    Division of the High Court and no other, and

    (c)

    proceedings in the civil division of the Court of Appeal
    arising out of proceedings within paragraph (a) or (b);

  • 20“witness”, in relation to any proceedings, includes a party to the
    proceedings.

31R Prohibition of cross-examination in person: victims of offences

(1)In family proceedings, no party to the proceedings who has been
convicted of or given a caution for, or is charged with, a specified
25offence may cross-examine in person a witness who is the victim, or
alleged victim, of that offence.

(2)In family proceedings, no party to the proceedings who is the victim, or
alleged victim, of a specified offence may cross-examine in person a
witness who has been convicted of or given a caution for, or is charged
30with, that offence.

(3)Subsections (1) and (2) do not apply to a conviction or caution that is
spent for the purposes of the Rehabilitation of Offenders Act 1974,
unless evidence in relation to the conviction or caution is admissible in,
or may be required in, the proceedings by virtue of section 7(2), (3) or
35(4) of that Act.

(4)Cross-examination in breach of subsection (1) or (2) does not affect the
validity of a decision of the court in the proceedings if the court was not
aware of the conviction, caution or charge when the cross-examination
took place.

(5)40In this section—

  • “caution” means—

    (a)

    in the case of England and Wales—

    Domestic Abuse BillPage 41

    (i)

    a conditional caution given under section 22 of
    the Criminal Justice Act 2003,

    (ii)

    a youth conditional caution given under section
    66A of the Crime and Disorder Act 1998, or

    (iii)

    5any other caution given to a person in England
    and Wales in respect of an offence which, at the
    time the caution is given, the person has
    admitted;

    (b)

    in the case of Scotland, anything corresponding to a
    10caution falling within paragraph (a) (however
    described) which is given to a person in respect of an
    offence under the law of Scotland;

    (c)

    in the case of Northern Ireland—

    (i)

    a conditional caution given under section 71 of
    15the Justice Act (Northern Ireland) 2011, or

    (ii)

    any other caution given to a person in Northern
    Ireland in respect of an offence which, at the time
    the caution is given, the person has admitted;

  • “conviction” means—

    (a)

    20a conviction before a court in England and Wales,
    Scotland or Northern Ireland;

    (b)

    a conviction in service disciplinary proceedings (in
    England and Wales, Scotland, Northern Ireland, or
    elsewhere);

    (c)

    25a finding in any criminal proceedings (including a
    finding linked with a finding of insanity) that the person
    concerned has committed an offence or done the act or
    made the omission charged;

    and “convicted” is to be read accordingly;

  • 30“service disciplinary proceedings” means—

    (a)

    any proceedings (whether or not before a court) in
    respect of a service offence within the meaning of the
    Armed Forces Act 2006 (except proceedings before a
    civilian court within the meaning of that Act);

    (b)

    35any proceedings under the Army Act 1955, the Air Force
    Act 1955, or the Naval Discipline Act 1957 (whether
    before a court-martial or before any other court or
    person authorised under any of those Acts to award a
    punishment in respect of an offence);

    (c)

    40any proceedings before a Standing Civilian Court
    established under the Armed Forces Act 1976;

  • “specified offence” means an offence which is specified, or of a
    description specified, in regulations made by the Lord
    Chancellor.

(6)45The following provisions (which deem a conviction of a person
discharged not to be a conviction) do not apply for the purposes of this
section to a conviction of a person for an offence in respect of which an
order has been made discharging the person absolutely or
conditionally—

(a)50section 14 of the Powers of Criminal Courts (Sentencing) Act
2000;

Domestic Abuse BillPage 42

(b)section 80 of the Sentencing Code;

(c)section 187 of the Armed Forces Act 2006 or any corresponding
earlier enactment.

(7)For the purposes of this section “offence” includes an offence under a
5law that is no longer in force.

31S Prohibition of cross-examination in person: persons protected by
injunctions etc

(1)In family proceedings, no party to the proceedings against whom an
on-notice protective injunction is in force may cross-examine in person
10a witness who is protected by the injunction.

(2)In family proceedings, 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.

(3)Cross-examination in breach of subsection (1) or (2) does not affect the
15validity of a decision of the court in the proceedings if the court was not
aware of the protective injunction when the cross-examination took
place.

(4)In this section “protective injunction” means an order, injunction or
interdict specified, or of a description specified, in regulations made by
20the Lord Chancellor.

(5)For the purposes of this section, a protective injunction is an “on-notice”
protective injunction if—

(a)the court is satisfied that there has been a hearing at which the
person against whom the protective injunction is in force asked,
25or could have asked, for the injunction to be set aside or varied,
or

(b)the protective injunction was made at a hearing of which the
court is satisfied that both the person who applied for it and the
person against whom it is in force had notice.

31T 30Prohibition of cross-examination in person: evidence of domestic
abuse

(1)In family proceedings, where specified evidence is adduced 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
35cross-examine the witness in person.

(2)In family proceedings, where specified evidence is adduced that a
person who is a party to the proceedings has been the victim of
domestic abuse carried out by a witness, that party may not cross-
examine the witness in person.

(3)40In this section—

  • “domestic abuse” has the meaning given by section 1 of the
    Domestic Abuse Act 2020;

  • “specified evidence” means evidence specified, or of a description
    specified, in regulations made by the Lord Chancellor.

(4)45Regulations under subsection (3) may provide that any evidence which
satisfies the court that domestic abuse, or domestic abuse of a specified



Domestic Abuse BillPage 43



description, has occurred is specified evidence for the purposes of this
section.

31U Direction for prohibition of cross-examination in person: other cases

(1)In family proceedings, the court may give a direction prohibiting a
5party to the proceedings from cross-examining (or continuing to cross-
examine) a witness in person if—

(a)none of sections 31R to 31T operates to prevent the party from
cross-examining the witness, and

(b)it appears to the court that—

(i)10the quality condition or the significant distress
condition is met, and

(ii)it would not be contrary to the interests of justice to give
the direction.

(2)The “quality condition” is met if the quality of evidence given by the
15witness on cross-examination—

(a)is likely to be diminished if the cross-examination (or continued
cross-examination) is conducted by the party in person, and

(b)would be likely to be improved if a direction were given under
this section.

(3)20The “significant distress condition” is met if—

(a)the cross-examination (or continued cross-examination) of the
witness by the party in person would be likely to cause
significant distress to the witness or the party, and

(b)that distress is likely to be more significant than would be the
25case if the witness were cross-examined other than by the party
in person.

(4)A direction under this section may be made by the court—

(a)on an application made by a party to the proceedings, or

(b)of its own motion.

(5)30In determining whether the quality condition or the significant distress
condition is met in the case of a witness or party, the court must have
regard to, among other things—

(a)any views expressed by the witness as to whether or not the
witness is content to be cross-examined by the party in person;

(b)35any views expressed by the party as to whether or not the party
is content to cross-examine the witness in person;

(c)the nature of the questions likely to be asked, having regard to
the issues in the proceedings;

(d)any behaviour by the party in relation to the witness in respect
40of which the court is aware that a finding of fact has been made
in the proceedings or in any other proceedings;

(e)any behaviour by the witness in relation to the party in respect
of which the court is aware that a finding of fact has been made
in the proceedings or in any other proceedings;

(f)45any behaviour by the party at any stage of the proceedings, both
generally and in relation to the witness;

(g)any behaviour by the witness at any stage of the proceedings,
both generally and in relation to the party;

Domestic Abuse BillPage 44

(h)any relationship (of whatever nature) between the witness and
the party.

(6)Any reference in this section to the quality of a witness’s evidence is to
its quality in terms of completeness, coherence and accuracy.

(7)5For this purpose “coherence” refers to a witness’s ability in giving
evidence to give answers which—

(a)address the questions put to the witness, and

(b)can be understood, both individually and collectively.

31V Directions under section 31U: supplementary

(1)10A direction under section 31U has binding effect from the time it is
made until the witness in relation to whom it applies is discharged.

(2)But the court may revoke a direction under section 31U before the
witness is discharged, if it appears to the court to be in the interests of
justice to do so, either—

(a)15on an application made by a party to the proceedings, or

(b)of its own motion.

(3)The court may revoke a direction under section 31U on an application
made by a party to the proceedings only if there has been a material
change of circumstances since—

(a)20the direction was given, or

(b)if a previous application has been made by a party to the
proceedings, the application (or the last application) was
determined.

(4)The court must state its reasons for—

(a)25giving a direction under section 31U;

(b)refusing an application for a direction under section 31U;

(c)revoking a direction under section 31U;

(d)refusing an application for the revocation of a direction under
section 31U.

31W 30Alternatives to cross-examination in person

(1)This section applies where a party to family proceedings is prevented
from cross-examining a witness in person by virtue of any of sections
31R to 31U.

(2)The court must consider whether (ignoring this section) there is a
35satisfactory alternative means—

(a)for the witness to be cross-examined in the proceedings, or

(b)of obtaining evidence that the witness might have given under
cross-examination in the proceedings.

(3)If the court decides that there is not, the court must—

(a)40invite the party to the proceedings to arrange for a qualified
legal representative to act for the party for the purpose of cross-
examining the witness, and

(b)require the party to the proceedings to notify the court, by the
end of a period specified by the court, of whether a qualified
45legal representative is to act for the party for that purpose.

Domestic Abuse BillPage 45

(4)Subsection (5) applies if, by the end of the period specified under
subsection (3)(b), either—

(a)the party has notified the court that no qualified legal
representative is to act for the party for the purpose of cross-
5examining the witness, or

(b)no notification has been received by the court and it appears to
the court that no qualified legal representative is to act for the
party for the purpose of cross-examining the witness.

(5)The court must consider whether it is necessary in the interests of
10justice for the witness to be cross-examined by a qualified legal
representative appointed by the court to represent the interests of the
party.

(6)If the court decides that it is, the court must appoint a qualified legal
representative (chosen by the court) to cross-examine the witness in the
15interests of the party.

(7)A qualified legal representative appointed by the court under
subsection (6) is not responsible to the party.

(8)For the purposes of this section—

(a)a reference to cross-examination includes a reference to
20continuing to conduct cross-examination;

(b)“qualified legal representative” means a person who, for the
purposes of the Legal Services Act 2007, is an authorised person
in relation to an activity which constitutes the exercise of a right
of audience (within the meaning of that Act) in family
25proceedings.

31X Costs of legal representatives appointed under section 31W(6)

(1)The Lord Chancellor may by regulations make provision for the
payment out of central funds of sums in respect of—

(a)fees or costs properly incurred by a qualified legal
30representative appointed under section 31W(6), and

(b)expenses properly incurred in providing such a person with
evidence or other material in connection with the appointment.

(2)The regulations may provide for sums payable under subsection (1) to
be determined by the Lord Chancellor or such other person as the
35regulations may specify.

(3)The regulations may provide for sums payable under subsection (1)—

(a)to be such amounts as are specified in the regulations;

(b)to be calculated in accordance with—

(i)a rate or scale specified in the regulations, or

(ii)40other provision made by or under the regulations.

31Y Guidance for legal representatives appointed under section 31W(6)

(1)The Lord Chancellor may issue guidance in connection with the role
which a qualified legal representative appointed under section 31W(6)
in connection with any family proceedings is to play in the
45proceedings, including (among other things) guidance about the effect
of section 31W(7).

Domestic Abuse BillPage 46

(2)A qualified legal representative appointed under section 31W(6) must
have regard to any guidance issued under this section.

(3)The Lord Chancellor may from time to time revise any guidance issued
under this section.

(4)5The Lord Chancellor must publish—

(a)any guidance issued under this section, and

(b)any revisions of that guidance.

31Z Regulations under Part 4B

(1)Any power of the Lord Chancellor to make regulations under this
10Part—

(a)is exercisable by statutory instrument,

(b)includes power to make different provision for different
purposes, and

(c)includes power to make supplementary, incidental,
15consequential, transitional, transitory or saving provision.

(2)A statutory instrument containing regulations under this Part is subject
to annulment in pursuance of a resolution of either House of
Parliament.”

64 Prohibition of cross-examination in person in civil proceedings

20In the Courts Act 2003, after Part 7 insert—

“Part 7A Civil proceedings: prohibition of cross-examination in person
85E Prohibition of cross-examination in person: introductory

In this Part—

  • 25“civil proceedings” means—

    (a)

    proceedings in the county court,

    (b)

    proceedings in the High Court, other than—

    (i)

    proceedings in the Family Division of the High
    Court which are business assigned, by or under
    30section 61 of (and Schedule 1 to) the Senior
    Courts Act 1981, to that Division of the High
    Court and no other, and

    (ii)

    proceedings in the exercise of its jurisdiction
    under the Extradition Act 2003, and

    (c)

    35proceedings in the civil division of the Court of Appeal
    arising out of civil proceedings within paragraph (a) or
    (b);

  • “witness”, in relation to any proceedings, includes a party to the
    proceedings.

85F 40Direction for prohibition of cross-examination in person

(1)In civil proceedings, the court may give a direction prohibiting a party
to the proceedings from cross-examining (or continuing to cross-
examine) a witness in person if it appears to the court that—

Domestic Abuse BillPage 47

(a)the quality condition or the significant distress condition is met,
and

(b)it would not be contrary to the interests of justice to give the
direction.

(2)5The “quality condition” is met if the quality of evidence given by the
witness on cross-examination—

(a)is likely to be diminished if the cross-examination (or continued
cross-examination) is conducted by the party in person, and

(b)would be likely to be improved if a direction were given under
10this section.

(3)The “significant distress condition” is met if—

(a)the cross-examination (or continued cross-examination) of the
witness by the party in person would be likely to cause
significant distress to the witness or the party, and

(b)15that 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.

(4)A direction under this section may be made by the court—

(a)on an application made by a party to the proceedings, or

(b)20of its own motion.

(5)In determining whether the quality condition or the significant distress
condition is met in the case of a witness or party, the court must have
regard to, among other things—

(a)any views expressed by the witness as to whether or not the
25witness is content to be cross-examined by the party in person;

(b)any views expressed by the party as to whether or not the party
is content to cross-examine the witness in person;

(c)the nature of the questions likely to be asked, having regard to
the issues in the proceedings;

(d)30any conviction or caution of which the court is aware for an
offence committed by the party in relation to the witness;

(e)any conviction or caution of which the court is aware for an
offence committed by the witness in relation to the party;

(f)any behaviour by the party in relation to the witness in respect
35of which the court is aware that a finding of fact has been made
in the proceedings or in any other proceedings;

(g)any behaviour by the witness in relation to the party in respect
of which the court is aware that a finding of fact has been made
in the proceedings or in any other proceedings;

(h)40any behaviour by the party at any stage of the proceedings, both
generally and in relation to the witness;

(i)any behaviour by the witness at any stage of the proceedings,
both generally and in relation to the party;

(j)any relationship (of whatever nature) between the witness and
45the party.

(6)Any reference in this section to the quality of a witness’s evidence is to
its quality in terms of completeness, coherence and accuracy.

Domestic Abuse BillPage 48

(7)For this purpose “coherence” refers to a witness’s ability in giving
evidence to give answers which—

(a)address the questions put to the witness, and

(b)can be understood, both individually and collectively.

85G 5Directions under section 85F: supplementary

(1)A direction under section 85F has binding effect from the time it is
made until the witness in relation to whom it applies is discharged.

(2)But the court may revoke a direction under section 85F before the
witness is discharged, if it appears to the court to be in the interests of
10justice to do so, either—

(a)on an application made by a party to the proceedings, or

(b)of its own motion.

(3)The court may revoke a direction under section 85F on an application
made by a party to the proceedings only if there has been a material
15change of circumstances since—

(a)the direction was given, or

(b)if a previous application has been made by a party to the
proceedings, the application (or the last application) was
determined.

(4)20The court must state its reasons for—

(a)giving a direction under section 85F;

(b)refusing an application for a direction under section 85F;

(c)revoking a direction under section 85F;

(d)refusing an application for the revocation of a direction under
25section 85F.

85H Alternatives to cross-examination in person

(1)This section applies where a party to civil proceedings is prevented
from cross-examining a witness in person by virtue of a direction under
section 85F.

(2)30The court must consider whether (ignoring this section) there is a
satisfactory alternative means—

(a)for the witness to be cross-examined in the proceedings, or

(b)of obtaining evidence that the witness might have given under
cross-examination in the proceedings.

(3)35If the court decides that there is not, the court must—

(a)invite the party to the proceedings to arrange for a qualified
legal representative to act for the party for the purpose of cross-
examining the witness, and

(b)require the party to the proceedings to notify the court, by the
40end of a period specified by the court, of whether a qualified
legal representative is to act for the party for that purpose.

(4)Subsection (5) applies if, by the end of the period specified under
subsection (3)(b), either—

(a)the party has notified the court that no qualified legal
45representative is to act for the party for the purpose of cross-
examining the witness, or

Domestic Abuse BillPage 49

(b)no notification has been received by the court and it appears to
the court that no qualified legal representative is to act for the
party for the purpose of cross-examining the witness.

(5)The court must consider whether it is necessary in the interests of
5justice for the witness to be cross-examined by a qualified legal
representative appointed by the court to represent the interests of the
party.

(6)If the court decides that it is, the court must appoint a qualified legal
representative (chosen by the court) to cross-examine the witness in the
10interests of the party.

(7)A qualified legal representative appointed by the court under
subsection (6) is not responsible to the party.

(8)For the purposes of this section—

(a)a reference to cross-examination includes a reference to
15continuing to conduct cross-examination;

(b)“qualified legal representative” means a person who, for the
purposes of the Legal Services Act 2007, is an authorised person
in relation to an activity which constitutes the exercise of a right
of audience (within the meaning of that Act) in civil
20proceedings.

85I Costs of legal representatives appointed under section 85H(6)

(1)The Lord Chancellor may by regulations make provision for the
payment out of central funds of sums in respect of—

(a)fees or costs properly incurred by a qualified legal
25representative appointed under section 85H(6), and

(b)expenses properly incurred in providing such a person with
evidence or other material in connection with the appointment.

(2)The regulations may provide for sums payable under subsection (1) to
be determined by the Lord Chancellor or such other person as the
30regulations may specify.

(3)The regulations may provide for sums payable under subsection (1)—

(a)to be such amounts as are specified in the regulations;

(b)to be calculated in accordance with—

(i)a rate or scale specified in the regulations, or

(ii)35other provision made by or under the regulations.

(4)Regulations under this section may make different provision for
different purposes.

85J Guidance for legal representatives appointed under section 85H(6)

(1)The Lord Chancellor may issue guidance in connection with the role
40which a qualified legal representative appointed under section 85H(6)
in connection with any civil proceedings is to play in the proceedings,
including (among other things) guidance about the effect of section
85H(7).

(2)A qualified legal representative appointed under section 85H(6) must
45have regard to any guidance issued under this section.