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The current system of cross-examining young witnesses was the subject of a seminar chaired by Lord Justice Hooper at the Nuffield Foundation on 10 June, writes Joyce Plotnikoff.
The seminar was following up Measuring Up? (2009) (Joyce Plotnikoff and Richard Woolfson) published by Nuffield and the NSPCC. This found that half of young witnesses – across age groups – did not understand some questions at court. Seminar participants included judges, magistrates, barristers, solicitors, intermediaries, child psychiatrists, academics and advocacy trainers.
Discussion focused on whether advocates are hindered from putting the defendant’s case if they cannot lead the witness. It was agreed that change was needed in light of the Court of Appeal decision in R v Barker ([2010] EWCA Crim 4, para 42). This said that when the issue is whether the child is lying or mistaken, the advocate should ask “short, simple” questions which put the essential elements of the defendant”s case, and “fully to ventilate before the jury” evidence bearing on the child’s credibility but which may not necessarily be appropriate to form the subject matter of detailed cross- examination of the child. The seminar noted that children are particularly susceptible to suggestion. Leading questions with tag endings – the most suggestive – are routinely used even though they take at least seven stages of reasoning to answer.
The conduct of training in developmentally appropriate questioning was also addressed. A survey conducted for the seminar revealed an uneven approach across training bodies, with some doing nothing because it is not required or recommended. An Advocacy Training Council working group is due to report shortly on how best to train barristers to handle vulnerable witnesses and defendants in court.
The seminar also considered alternatives to the current system, including the 1989 Pigot Committee recommendation that courts should have discretion to take children’s evidence at pre-trial hearings, possibly with advocates” questions relayed through a specialist child examiner.
Joyce Plotnikoff, Lexicon Ltd
The seminar was following up Measuring Up? (2009) (Joyce Plotnikoff and Richard Woolfson) published by Nuffield and the NSPCC. This found that half of young witnesses – across age groups – did not understand some questions at court. Seminar participants included judges, magistrates, barristers, solicitors, intermediaries, child psychiatrists, academics and advocacy trainers.
Discussion focused on whether advocates are hindered from putting the defendant’s case if they cannot lead the witness. It was agreed that change was needed in light of the Court of Appeal decision in R v Barker ([2010] EWCA Crim 4, para 42). This said that when the issue is whether the child is lying or mistaken, the advocate should ask “short, simple” questions which put the essential elements of the defendant”s case, and “fully to ventilate before the jury” evidence bearing on the child’s credibility but which may not necessarily be appropriate to form the subject matter of detailed cross- examination of the child. The seminar noted that children are particularly susceptible to suggestion. Leading questions with tag endings – the most suggestive – are routinely used even though they take at least seven stages of reasoning to answer.
The conduct of training in developmentally appropriate questioning was also addressed. A survey conducted for the seminar revealed an uneven approach across training bodies, with some doing nothing because it is not required or recommended. An Advocacy Training Council working group is due to report shortly on how best to train barristers to handle vulnerable witnesses and defendants in court.
The seminar also considered alternatives to the current system, including the 1989 Pigot Committee recommendation that courts should have discretion to take children’s evidence at pre-trial hearings, possibly with advocates” questions relayed through a specialist child examiner.
Joyce Plotnikoff, Lexicon Ltd
The current system of cross-examining young witnesses was the subject of a seminar chaired by Lord Justice Hooper at the Nuffield Foundation on 10 June, writes Joyce Plotnikoff.
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