Moved by
Lord Wolfson of Tredegar
33: Clause 64, page 47, line 21, at end insert—
“85EA Prohibition of cross-examination in person: victims of offences
(1) In civil proceedings, no party to the proceedings who has been convicted of, or given a caution for, a specified offence may cross-examine in person a witness who is the victim of that offence.
(2) In civil proceedings, no party to the proceedings who is the victim of a specified offence may cross-examine in person a witness who has been convicted of, or given a caution for, 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 (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 or caution when the cross-examination took place.
(5) In this section—
“caution” means—
(a) in the case of England and Wales—
(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) any 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 caution 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 the 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) a conviction by or 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), including—
(i) in the case of proceedings in respect of a service offence, anything that under section 376(1) and (2) of the Armed Forces Act 2006 (which relates to summary hearings and the Summary Appeal Court) is to be treated as a conviction for the purposes of that Act, and
(ii) in the case of any other service disciplinary proceedings, a finding of guilt in those proceedings;
(c) a 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;
“service disciplinary proceedings” means—
(a) any proceedings (whether or not before a court) in respect of a service offence (except proceedings before a civilian court within the meaning of the Armed Forces Act 2006);
(b) any 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) any proceedings before a Standing Civilian Court established under the Armed Forces Act 1976;
“service offence” means—
(a) a service offence within the meaning of the Armed Forces Act 2006, or
(b) an SDA offence within the meaning of the Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (S.I. 2009/1059);
“specified offence” means an offence which is specified, or of a description specified, in regulations made by the Lord Chancellor.
(6) The 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) section 14 of the Powers of Criminal Courts (Sentencing) Act 2000;
(b) section 82 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 law that is no longer in force.
85EB Prohibition of cross-examination in person: persons protected by injunctions etc
(1) In 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.
(2) In civil 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 validity 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 the 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, or 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.
85EC Prohibition of cross-examination in person: evidence of domestic abuse
(1) In civil 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 cross-examine the witness in person.
(2) In civil 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) In this section—
“domestic abuse” has the meaning given by section 1 of the Domestic Abuse Act 2021;
“specified evidence” means evidence specified, or of a description specified, in regulations made by the Lord Chancellor.
(4) Regulations under subsection (3) may provide that any evidence which satisfies the court that domestic abuse, or domestic abuse of a specified description, has occurred is specified evidence for the purposes of this section.”
Member’s explanatory statement
This amendment provides for an automatic prohibition in civil proceedings on the cross-examination of witnesses in person in certain cases, similar to the provisions in Clause 63. For example, it prohibits a party who has been convicted of a specified offence from cross-examining in person a witness who is the victim of that offence. “Specified” here means specified in regulations made by the Lord Chancellor.
34: Clause 64, page 47, line 25, after “if” insert “—
(a) none of sections 85EA to 85EC operates to prevent the party from cross-examining the witness, and
(b) ”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 47, line 21.
35: Clause 64, page 48, line 9, at end insert—
“(ca) any charge of which the court is aware in respect of a specified offence alleged to have been committed by the party in relation to the witness;
(cb) any charge of which the court is aware in respect of a specified offence alleged to have been committed by the witness in relation to the party;”
Member’s explanatory statement
This amendment, and the Minister’s amendment at page 48, line 25, provide that, in deciding whether to make a direction under new section 85F of the Courts Act 2003 prohibiting a party from cross-examining a witness in person, the court must have regard to the fact that the party has been charged with a specified offence alleged to have been committed in relation to the witness (or vice versa).
36: Clause 64, page 48, leave out lines 10 to 13
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 47, line 21.
37: Clause 64, page 48, line 25, at end insert—
“( ) In subsection (5)(ca) and (cb) “specified offence” means an offence that is a specified offence for the purposes of section 85EA.”
Member’s explanatory statement
See the explanatory statement for the Minister’s amendment at page 48, line 9.
38: Clause 64, page 49, line 7, leave out “a direction under section” and insert “any of sections 85EA to”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 47, line 21.
39: Clause 64, page 50, leave out lines 16 and 17
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 50, line 30.
40: Clause 64, page 50, line 30, at end insert—
“85K Regulations under Part 7A
Regulations under this Part may make different provision for different purposes.””
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 47, line 21.