There followed the special measures provisions in the Youth Justice and Criminal Evidence Act 1999 (“the 1999 Act”), which largely came into effect in July 2002. Participative advocacy training for the Bar has remained meanwhile a matter of how to handle robust adult witnesses. “We all know [in other words ‘I know’] how to cross-examine children; you only need an experienced barrister and a robust judge” is not an isolated attitude. The result has been that – however politely – inappropriate questions have been asked of vulnerable witnesses who then give unreliable answers on the basis of which appeals have been launched.

Guidance from the Court of Appeal

We know this from two important appeals in 2010 which also illustrate how the Court of Appeal has begun to offer its own guidance. In January R v Barker [2010] EWCA Crim 4 debunked several of the assumptions that barristers traditionally made (see further “Through the eyes of a Child” Counsel March 2010, pp 27–28). In the course of argument the court pointed out to appellant counsel that the four-year-old witness had not given an ambiguous answer; counsel had asked two questions together and she had simply replied to one of them. More recently R v W and M [2010] EWCA Crim 1926 has been more explicit. It is helpfully prescriptive but at the end unfortunately muddies its own message.

The facts in R v W and M

W and M were two ten-year-old boys who stood trial at the Old Bailey last May, charged with rape. The complainant was a girl aged eight who alleged that in the course of playing with the boys, they had or tried to put their penises into her vulva and anus. The issue on appeal was whether the case should have been left to the jury, having regard to the allegedly contradictory answers the girl gave towards the end of her cross-examination. Unsurprisingly the trial attracted immense media attention, and the Court of Appeal attempted to put the media and their criticism in their place (at [2]): “It is important that … anybody tempted to comment upon [the trial] should understand the confines of the law within which courts are obliged to operate.” The court’s own criticism was largely reserved for those who had not kept the matter in the Youth Court.

Intermediary intervention

Having regard to the questioning in Barker (which was reported three months before), where there was no intermediary and where no one intervened during the questioning, it is surprising that there was no intermediary assessment in R v W and M, considering what an eight-year-old would be cross-examined on. It is worth recalling that the court of its own motion has powers under s 19 of the 1999 Act to raise the issue of special measures, including the use of an intermediary or clearing the court of the media apart from one representative. The trial judge here did not invoke his s 19 powers. Judges certainly can feel uncomfortable about intervening “too often”. Intermediaries are taught to intervene as often as necessary and since they are sitting in the live link room next to the witness, they can see the subtle changes in facial expressions of the witness in response to questions which counsel and the judge cannot see through the monitor. Quite apart from the needs of the witness and the statutory criteria, it is good trial management.

An intermediary could potentially also have assisted the defendants in this case even though they did not give evidence: these were ten-year-old boys who found themselves in a legal environment, with procedures, consequences and vocabulary of which they presumably had known nothing.

Questioning young children

The appeal seems to have been founded on answers which the child gave at the end of the questioning sessions, when she was most likely to be tired (and hence less reliable), and in response to questions which arguably should not have been asked. An intermediary might well have intervened in this situation but here the questions slipped through the net – assertions, leading questions and tag questions (“If you wanted to go home you could have gone home, could you not?”). “A good deal of time was spent at the trial investigating whether whatever happened … had or had not been against A’s wishes” – although her wishes are irrelevant under the statute (see the judgment at [16]).

In respect to defence counsel’s questions, Lord Justice Hughes set out how concerned the trial judge had been and how he tried to put things right with some open questions of his own. The Court of Appeal then helpfully pointed out that young children should not be asked tag questions or multi-parted questions and they should not have an adult put assertions to them. Phrasing things like that make it “very difficult to tell whether the child is truly changing her account or simply taking the line of least resistance” (see at [31]). Clearly there is no point in seizing on answers which are probably unreliable.”; “It is generally recognised that in particular with child witnesses short and untagged questions are best at eliciting the evidence.” (See at [30]) “By untagged we mean questions which do not contain a statement of the answer which is sought” (which, with respect, is the definition of a non-leading question).

Muddying the waters?

Having said the above, the court then should have set out the obvious if regretful conclusion, namely that on this occasion counsel got it wrong and in the future counsel should do it right. Instead they said, “We want to make it clear that we are quite sure that neither counsel cross-examined this child inappropriately.” Which makes things rather less clear. The Advocacy Training Council has its work cut out for it.

David Wurtzel is Counsel’s Consultant Editor