Time to change the rules?

Falling behind – the position in other jurisdictions
The essays in the book make clear how far behind we are from common law and non-common law jurisdictions where pre-recorded cross examination of children has been conducted for years and where only a handful of children ever need to be questioned subsequently. Methods vary considerably. In Western Australia the child sits in the live link room and is questioned by the lawyers and judge elsewhere; in due course the jury sees and hears the child on video but only hears the disembodied voices of the questioners. In Norway the child is only questioned by a highly trained police officer who consults the judge and counsel to ensure that all topics and contradictions have been identified. In Austria the child is questioned either by an expert or by a pre-trial judge. In New Zealand the government intends to legislate in favour of a system of pre-recording evidence in which the children are questioned by specialist intermediaries ‘trained in the cognitive development and language comprehension of children’. The latter was recommended, where appropriate, in some cases by the pioneering (English) Pigot Report of 1989 (reproduced in whole in the book) with the dissent of the representative of the Bar on the working party.

Asking the questions – R v Barker
Section 28 would not empower anyone but the lawyers to ask the questions. However the quality of their advocacy and the method of cross examining young witnesses remain in issue. The idea for the Cambridge conference itself came from the officers in the trial of R v Barker [2010] EWCA Crim 4 where a child of 4 ½ was questioned by a QC on the afternoon of the second day she was brought to court: ‘the cross examination, if judged as a procedure meant to test the evidence of children to determine whether it is reliable, was inept and served no useful purpose’. Court transcript analysis in New Zealand has found no improvement in cross examination practice there despite streams of practitioner articles and courses.

In their contribution, Joyce Plotnikoff and Richard Wolfson, who have conducted the most important studies on children giving evidence, point out that historically there is  ‘a long learning curve—with resistance along the way—when professions are forced to shift directions’. They argue that training content must go beyond suggesting that questions be simplified. It has been Government policy since 1988 that cases involving children should be tried speedily but there has not yet been any government monitoring to see whether or not this works and in fact children cases take longer to reach court than for all criminal cases.

In his conclusion, Professor Spencer deals with the ‘adversarial package’ and states that traditional, adversarial cross examination (and which does not happen until the trial) ‘is not a reliable method either of testing the truthfulness of what the child has previously said or of obtaining from them further information that is accurate’.

Setting an example – how things can be done
Meanwhile, a recent Crown Court trial has demonstrated how the court is able to adapt its procedures to match the needs of the particular very young witness. The girl here was aged 4 at the date of the incident and aged 5 at the time of the trial. The Registered Intermediary (RI) who had assessed her noted that the child’s communication was at its most effective when she was face to face with the person she was communicating with. At the pre-trial visit, the child practised using the live link, answering questions unrelated to the evidence. Her communication was less effective. She found it much more difficult to concentrate, and stopped noticing or using gestures or facial expressions.

This was not the first time that the RI, who specialises in helping very young children, had encountered the problem. It was her experience that many young children are confused by the idea of speaking to a TV. They stop using their face and hands to support their communication and many stop attending to the questioner’s gestures and facial expression. They may not understand how to respond if counsel holds up a visual aid in court. Also, as there is often a slight time lag between sound and image, they can hear their words in the court room just after they have said them which adds further confusion.

At the ground rules hearing at the trial, at which the RI provided assistance with the phrasing of certain questions, she also recommended that both advocates question the witness from within the live link room, sitting opposite the child. It would all be seen by the court through the monitor and the judge could intervene where appropriate.

The judge decided that the live link room was in effect an extension of the court and allowed the proposed method to be used. All parties and the RI co-operated in reorganising the chairs and camera angles and practised (without the witness). The room was made more ‘child friendly’ with a small armchair, a low table and quiet, calming toys. Photographs and drawings were made available as communication aids.

For his part, defence counsel noted the relevant Court of Appeal guidance in cross-examining very young children, and watched again the Criminal Bar Association CPD DVD about the ‘wrong’ and the ‘right’ way to cross examine a vulnerable witness. He took on board the RI’s recommendations about questioning. The aim was to question the child appropriately so that the judge or the RI would not have to intervene much, and he could make the most of what had to be, having regard to the witness’s age, a relatively short cross examination.

On the morning of the cross examination, the CPS crown advocate, and defence counsel went into the room with the child, the RI and a court usher. The child was able to attend fully and to respond to questions. In addition to the direct impact of face to face communication, other barriers were removed, e.g. counsel could share the communication aids (photos and drawings) directly with the child. Counsel’s own recollection was that by sitting so close to her, he could watch her reaction and adjust his tone of voice and pace. The disadvantage was that he was not able to see the jury’s reaction.

After the cross examination, defence counsel listed the inconsistencies in the child’s accounts between the cross examination and the two ABE interviews, in the first of which she had made no disclosure, in accordance with R v Wills [2011] EWCA Crim 1938, para. 39. These were repeated to the jury by the judge in his summing up. This also accords with the dicta of the Court of Appeal in Barker that ‘Aspects of evidence which undermine or are believed to undermine the child’s credibility must, of course, be revealed to the jury, but it is not necessarily appropriate for them to form the subject matter of detailed cross-examination of the child’ (para. 42).

The trial showed how the court can adapt itself to the needs of a particular witness. If applied to section 28, it could allow a very young witness to give her evidence without having to wait a year to do so.

The Coalition Government is keeping under consideration the implementation of section 28.

David Wurtzel is Consultant Editor of Counsel.