On further examination he was found to have life threatening internal injuries, being tears to the mesentery, injuries to the small gut and bleeding within the abdomen. The internal injuries were caused by blunt trauma to the abdomen.

Considerable force would have been required. Prompt extensive surgery saved his life. Both the adults in the house denied any knowledge of how the injuries had been sustained. Criminal charges, therefore, seemed unlikely.  Two weeks after his admission to hospital Child Q told a social worker, “R stamped on my tummy”. At the time he was two years and six months old. Child Q repeated this allegation to others, together with other matters, over the following months.

The question of charging R was reviewed by the CPS. The initial reaction based on case law was that Child Q was too young to give evidence. However West Yorkshire Police officers, impressed by Child Q’s clarity and consistency, pressed for an assessment of Child Q’s ability to communicate with the police and the court.  The assessment was carried out by an experienced intermediary with the interviewing officer present. This took place in February 2011, by which time Child Q was 3.

During the assessment, Q was asked to use dolls to represent members of his foster family. He was able to do this successfully. The intermediary was in touch with the guardian ad litem, since Q was now in care. Following the assessment, a video interview took place on the same day with the officer and with the intermediary assisting in communication. During the course of the interview the child set out in full his recollection of events. He demonstrated, by standing up and stamping quickly and hard how he had been injured and also demonstrated this by use of wooden dolls which he had chosen to represent the people who had been in the house at the time of the alleged offence.

I was instructed as Crown counsel. The CPS reviewed the case and a decision was made to proceed against the stepfather alone, calling the mother as a witness. The case was listed before His Honour Judge Jonathan Rose. Prior to the trial in October 2011 the matter was listed for the determination of the question as to whether the child was competent given his age and the delay.

The most daunting obstacle was the delay. An understandable reluctance to put a tiny child through recalling a traumatic and painful event followed by undergoing the trial process had led to a year passing before the recording was made. A further eight months had passed prior to trial.

The ABE interview itself showed the benefit of an experienced intermediary and a carefully prepared police officer with the assistance of dolls’ house props asking a series of non-leading questions at the child’s pace in an environment which was comfortable for him. When assessing Child Q’s competency, the court had the benefit of the original assessment, the ABE interview itself, a report by the intermediary immediately following this and a further report by the intermediary after the long delay to trial. With the agreement of both counsels she revisited the child not to discuss his evidence with him but to assess his current level of understanding and ability to give evidence.

The following recent authorities were reviewed.

R v Powell 2006 1 Cr.App.R. 468
R v Malicki 2009 E.W.C.A. Crim. 365
R v Barker 2010 E.W.C.A. Crim. 4
Stephen R 2010 E.W.C.A. Crim. 2469
R v Watts 2010 E.W.C.A. Crim. 1824
(R v Wills 2011 E.W.C.A. Crim. 1938)

In Barker the child was just under 3 when she started to talk about the offences, disclosing to her foster mother. Her ABE interview took place when she was about 3 ¼. She gave evidence a year after that. The Lord Chief Justice made it clear that “delay on its own does not automatically require the Court to prevent or stop the evidence of the child from being considered by the jury”.

As to the competence of the child, the Court of Appeal said, “Many accreted suspicions and misunderstandings about children, and their capacity to understand the nature and purpose of an oath and to give truthful evidence at a trial, have been swept away” (para 33).

Applying the test in S53 Youth Justice and Criminal Evidence Act, the Court held she was competent.
“The question in each case is whether the individual witness, or as in this case the individual child, is competent to give evidence in the particular trial. The question is entirely witness or child specific. There are no presumptions or preconceptions. The witness need not understand the special importance that the truth should be told in Court and the witness need not understand every single question or give a readily understood answer to every question. Many competent adult witnesses would fail such a competency test” (para 38).

“It is not open to a judge to create or impose some additional but non-statutory criteria based on the approach of earlier generations to the evidence of small children.”

Child Q was found to be competent. In the light of the authorities and the evidence, the defence did not contest the issue of the child’s competence. The preliminary hearing went on to determine the technical difficulties which surrounded this very small child giving evidence about a traumatic life event. The issues to be determined included where in the court building could the child give evidence bearing in mind that he needed to be at a small table sitting next to the intermediary but visible at all times to the camera. Who was to check the equipment and when?

What visual aids, e.g. dolls and dolls’ house furniture, would be needed? How could one doll be easily distinguished from another?  What breaks would be needed, how long and what could this active little boy do in those breaks? Was there a secure outside space he could go to? The best time for the child to give evidence was the morning so the timetable was set accordingly.

How were questions to be framed?

This was determined not at the preliminary hearing but at a “ground rules” meeting arranged shortly before the trial in accordance with Judicial College and Bar Council guidance as set out on page 8 of the Application for a Special Measures Direction. Here it took place in a conference room at court with the judge, counsel for both prosecution and defence, the intermediary and a court clerk. The case of R v Barker has within it, by way one assumes of an example to be avoided, the cross-examination of the child in that case. Looking at the transcript, it is easy to see how cross-examination techniques honed on adults can be inappropriate for children.

For instance the child in R v Barker is at one point clearly answering the question before. For Child Q the intermediary stressed the need to ask questions slowly, to avoid comment in questions and to ask short non-tagged questions, i.e. not “You did do that didn’t you” but “Did you do this”. Within the ground rules meeting there was an opportunity to try out the formulation of such questions. Also discussed was how the intermediary would signal if she believed the child had not understood.

Without such a ground rules meeting much of the benefit of an intermediary must be lost. Their role is not that of an interpreter but an integral asset to the court process.  Shortly before the trial, when Child Q watched his DVD, there was a meeting between the child and the judge and then the advocates. Prior to this it was discussed what the advocates would wear and how they would introduce themselves.

At trial considerable problems arose keeping Child Q focused on the questions that he was being asked. On one occasion (somewhat inaccurately reported in the media) he said that he did not want to answer more questions; he was hungry and wanted some crisps; the judge in response asked him if he would please answer two or three more questions and then everyone would have a break and a snack. Defence counsel was skilled, patient and careful. Despite this, he was not shaken and repeated his allegation that the defendant had stamped on him. Thanks to his evidence the Defendant was convicted and a 10 years sentence was passed. After the trial Child Q’s behaviour was disturbed for some time, with him “acting out” with his toys.

The trial with defence counsel asking questions through a TV link was the first opportunity for the defence to put their case to the child. If it had been possible to pre-record the cross-examination as recommended in the Pigot Report as long ago as 1989, months of delay would have been avoided. The cross-examination could have taken place round a table with the judge, the child, the intermediary and counsel. The recording would then be played to the jury. Surely this would be a far fairer system for defendants whose counsel is otherwise disadvantaged by cross-examining a child through a TV link about a distressing experience in their past. The Pigot hearing would involve a less stressful experience for a child with far less delay. There are proposals that the family system could be implemented in the criminal courts. I for one hope that they are brought in soon.

Caroline Wigin Park Court Chambers, Leeds