This year’s Criminal Bar Association’s Spring Conference was entitled “Children & Vulnerable Witnesses”. It aimed to explore the essential components of any criminal trial involving children and other vulnerable people. This is a rapidly changing and extremely important area of law and procedure. Some of the difficulties with the use of children’s evidence have recently been highlighted in R v Barker  EWCA Crim 4, (2010) Times, 5 February; the Coroners and Justice Act 2009 (“the 2009 Act”) has altered the use of special measures, in particular, the use of intermediaries for defendants. We wanted to explore the process from first complaint through to trial and consider the very complex issues that can arise at each step of the way in order to ensure those who prosecute and defend are fully equipped to do so.
The conference took place in Bristol, and was co-hosted by the Wales and Chester and Western Circuits. It was opened by Lord Justice Goldring who acknowledged the importance of the topic. Robin Tolson QC, Leader of the Western Circuit, echoed that view from a family law perspective.
Dr Kevin Smith was responsible for the 2007 edition of Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Using Special Measures and is currently revising Achieving Best Evidence. He reminded us of the difficulty of getting an Achieving Best Evidence (“ABE”) interview right and what to look out for when reviewing it when preparing for trial.
Laura Hoyano gave an excellent update on competence and special measures. These two areas were the foundation blocks for the rest of the day, when we went on to consider how practitioners can and should deal with a witness whose competence may be open to question, or whose level of understanding may be extremely limited, and the application of the special measures to defendants and defence witnesses.
Laura is well known to the CBA. She entitled her presentation “And what’s your name, Rebecca?”, succinctly illustrating the unsatisfactory manner in which children have been questioned in the past. She first took us through R v Barker, which has now clarified the position on child competence. For anyone involved in a case where the child witness is very young and there has been some delay between complaint and ABE and trial, this decision is of fundamental importance. It gave rise to a number of questions and then lively discussions throughout the day about how, in such cases, defence advocates can put their case. A new way of questioning seems to be the answer. As we saw later in the practical demonstration, this is not always as feasible as it sounds. But, we hope, such issues are now at the forefront of the minds of those who undertake this area of work.
Laura’s flow charts are second to none and guided us through the myriad of changes brought about by the 2009 Act. Most important of the changes, perhaps, are those relating to child defendants. Ever since the dawn of special measures, it has been beyond the comprehension of those in the criminal justice system that a witness who is “in need of special protection” by virtue of age, or capacity is somehow different to a defendant of the same age or capacity. How can it be that a witness who has an IQ in the lower percentile needs assistance in order to give evidence but a defendant with the same IQ is not entitled to the same assistance? Section 33A of the 2009 Act finally addresses this with the introduction of the use of an intermediary or live link for a defendant. A step in the right direction, although still not a level playing field between witnesses and defendants was the general consensus.
The role of intermediaries
Brendan O’Mahony and Sharon Richardson put some flesh on the bones of this aspect of Laura’s presentation by explaining from a practical perspective the importance of their roles for both witnesses and defendants. Both are registered intermediaries but Brendan has worked mainly with defendants and Sharon mainly with witnesses. It was a great opportunity to hear how it works on both sides and dispel some of the myths about using an intermediary (for example, that intermediaries put words into a witness’ mouth).
Continuing with the subject of defendants, Dr Eileen Vizard began her presentation using the provocative question “Are they born bad?” As a child and adolescent psychiatrist she has been involved in cases with some of the youngest offenders committing the most serious of offences. She presented some alarming statistics and research on child development, brain development and the effects of “environment” upon brain development which provided much food for thought. So too did the question of whether we have reached the stage that we should have a “joint” expert in cases where young offenders have committed extremely serious offences, rather than allowing one side to abandon an expert report which contains material which may suggest dangerousness because of the child’s circumstances and difficulties. Again, this is something of a controversial but thought-provoking subject. Plainly, one might argue that the choice about what evidence or information a representative relied upon was a key part of the adversarial system. Nevertheless, it is important that there is proper debate about such issues. We must keep an open mind about what best serves the defendant and the public interest, particularly when dealing with the young and very damaged.
The final presentation was by Richard Woolfson. Working with Joyce Plotnikoff, Richard conducted the first national survey of young witnesses for the NSPCC and the Nuffield Foundation (“In their own words”). He discussed the results of this survey, made a number of helpful and practical recommendations for better practice, and played a selection of thought-provoking recorded reflections by child witnesses caught up in the criminal justice system.
A practical demonstration
In order to bring to life all the issues considered throughout the day, we decided to end with a practical demonstration. Michael Bowes QC and Ruth Henke QC put together a scenario based on a fictitious report produced by Sharon Richardson and actress Olivia Poulet gave a brilliant performance as the child complainant of 11 years with moderate learning difficulties. The Recorder of Bristol, His Honour Judge Ford QC, was first of all invited to rule at a “ground rules hearing” on the question of whether Michael, as defence advocate, was required to “put his case”. It may have been the first time many who attended the conference had heard of such a thing and so the demonstration was particularly instructive. It soon became clear that we are all going to have to adapt our approach to cross-examination in such cases and that there is still some resistance to doing so. We have come a long way in developing our skills to ensure the young and vulnerable (and this must apply to defendants too) are questioned appropriately. We still have some way to go. The excellent demonstration by Ruth and Michael of taking our witness though evidence-in-chief and cross-examination was a real lesson in how it should (and should not) be done and how it can be done without putting your case in the traditional sense.
In his closing remarks Paul Mendelle QC emphasised that the CBA recognises that practitioners need to be alive to these issues and embrace the changes that are required. In an age when we encourage children and the vulnerable to participate in the criminal justice process; when defendants as young as ten are brought into the system, we have a responsibility to ensure they are all treated properly and that their evidence is as reliable as it possibly can be whilst achieving fairness for all. At the heart of that is an event such as this.
Lesley Bates is a barrister at 23 Essex Street and the Secretary to the Criminal Bar Association