Master of the rolls Lord Dyson has suggested a change in the law should be considered to make public funding available to appoint a lawyer where cross-examination is required in certain civil cases.
Dyson (pictured) made the recommendation in a Court of Appeal judgment today which overturned an order for the government to fund representation for a litigant in person seeking to cross-examine a child in court on the basis that the court had ‘no power’ to make such an order.
Dyson suggested nevertheless that consideration be given to a statutory provision in civil proceedings analogous to sections of the Youth Justice and Criminal Evidence Act 1999 and the Prosecution of Offenders Act 1985.
These provide for defence representation to be paid for out of public funds for the purposes of cross-examination. Such a provision, he suggested, could avoid potential breaches of articles 6 and 8 of the European Convention on Human Rights, the rights to a fair trial and respect for one’s private and family life.
In the present case, Dyson said the judge ‘should probably have decided to conduct the questioning himself’ rather than appoint a legal representative. But he noted there might be circumstances when this would not be applicable, such as if the oral evidence is complicated or confused, creating the need for a statutory provision.
The original order was made by His Honour Judge Clifford Bellamy in K&H (Children: Unrepresentated Father: Cross-Examination of Child) who ruled that the litigant, a father of two young children, could not cross-examine his 17-year-old step-daughter, who was alleging he had sexually abused her.
Determining whether the teenager’s allegation was true would determine the father’s future contact with his young children.
The father was above the threshold of £724-a-month disposable income to be eligible for legal aid. But Bellamy ruled that this did not mean the father had the means to pay for representation and ordered HMCTS to cover the cost to appoint a legally qualified advocate to cross-examine the teenager.
Dyson ruled that as the Legal Aid, Sentencing and Punishment of Offenders Act provides a ‘comprehensive’ code for the funding of litigants, the court had no power to order the government to provide funding for legal representation in circumstances where funding is not available.
He said the court ‘must respect the boundaries’ drawn by parliament for public funding of legal representation, and said the judge’s order amounted to ‘judicial legislation’.