PART 7A

Civil proceedings: prohibition of cross-examination in person

Direction for prohibition of cross-examination in person: other cases
85I
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—
a
none of sections 85F to 85H operates to prevent the party from cross-examining the witness, and
b
it appears to the court that—
i
the 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 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 this 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
that 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
of 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 witness 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
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;
e
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;
f
any behaviour by the party in relation to the witness in respect of 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
any 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 the party.
6
In subsection (5)(d) and (e) “
specified offence
” means an offence that is a specified offence for the purposes of section 85F.
7
Any reference in this section to the quality of a witness's evidence is to its quality in terms of completeness, coherence and accuracy.
8
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.
Pt. 7A inserted (21.7.2022) by Domestic Abuse Act 2021 (c. 17), ss. 66, 90(6); S.I. 2022/840, regs. 1(2), 2(b) (with reg. 3)