A series of planned court reforms, announced September 2016, will enable vulnerable victims and witnesses – including children – to give their evidence before a trial starts. Cross-examinations would be recorded in advance and then played in court, removing the need to relive trauma, such as abuse, at trial. This is a welcome move to ensure the best evidence is secured from child witnesses, particularly in abuse cases.
‘Special measures’ intended to support young and vulnerable witnesses to give the best possible evidence they can at trial, do already exist. Witnesses under 18 are automatically considered to be vulnerable witnesses and are permitted to give evidence from behind a screen, or by video link and their communication can be supported by a Registered Intermediary. Judges and advocates can be asked to remove their gowns and wigs and the public gallery cleared before the witness gives evidence. But in practice how often does this happen and why is it important that it does?
Children have to be tremendously brave to be a witness against someone who has abused them – something that is daunting even for an adult, yet their evidence can be crucial to a case. So we must make sure they are supported to give evidence. An essential part of this is allowing them to do so where and when they are likely to feel comfortable and confident. Courts are intimidating adult places yet many children still have to go to court buildings, even when giving video evidence. Remote links are a much better option enabling witnesses to give their evidence without physically entering a court building.
When the NSPCC’s ‘Order in Court’ campaign launched in 2014 over 99% of children had to go to court to give their evidence. In September 2014 the government made a commitment to victims to ensure that every court region provides a remote video link facility. Now, although there is at least one remote site in each of the seven court regions in England and Wales, we are far from full coverage, and many areas are still not served meaning children in those areas will still have to go to court buildings to give video evidence.
A recent Freedom of Information (FOI) request from the NSPCC to police forces across England and Wales revealed that more than half of the forces that responded already have ‘remote video links’ in place. Whilst 25 forces told us they have these facilities set up and ready to use, only five were actually able to tell us how many children had used them. The rest either didn’t have sites and those that did had not yet seen them utilised by child witnesses or the forces simply didn’t have the data relating to this. Clearly usage will depend on a number of varying factors – including geography, size and resource of individual police forces, staff training and presence of witnesses in the first instance – but this seems like a missed opportunity.
Utilising remote video links where they do exist and capturing how and when and by whom they and other special measures are used is vital to enable sufficient resourcing of services to support vulnerable young witnesses. Cases involving children often take longer to be heard and these delays can have a negative impact on young witnesses. Waiting for a trial can delay the healing process for victims. Many will live in limbo until their case is heard, and some for long afterwards if they feel they were not able to participate fully in giving their best evidence because they didn’t understand the questions or were unable to communicate clearly.
Access to a Registered Intermediary can be invaluable in ensuring a young witness understands the complex language used in the court process and indeed ensuring the court can understand a child’s response. The language used by police, legal representatives and court officials must seem alien to a child and not understanding what is being asked of them will add to an already stressful and traumatic experience.
Whilst it is vital that a child’s evidence is tested as part of the criminal justice process it’s just as vital that they understand the questions being put to them. Each individual child should be considered as just that, an individual with different levels of maturity and different abilities to understand what is being asked, and why. Court of Appeal judges in the Stephen Barker appeal in 2010 made it clear that ‘very young children could be competent to give evidence’ and that a child’s age should not in itself rule out any value in that child giving evidence. But we do need to ensure that we mitigate the challenges children face when giving evidence, by minimising the stress and fear they feel and ensuring they understand what is being asked of them.
Over half of child witnesses experience symptoms of stress such as sleeping and eating problems, depression, panic attacks and self harm. The quality of their evidence can be damaged by unfair and prolonged questioning. Advocates are in a position to contribute to improving the court experience for child witnesses by completing training such as that developed by HHJ Rook QC which aims to teach the skill of ‘dealing appropriately with vulnerability’.
Some courts, judges, advocates and police forces are making a significant effort to ease the burden for child witnesses and there has been progress, but there remains a long way to go. The courts piloting the pre-recording of evidence have led the way in managing the way the young and vulnerable are questioned. Barristers can be asked to submit their questions in writing to the judge in advance, to avoid pronouns which might confuse, and not to put their case directly to a witness who simply won’t understand it. But the reality is that many children will face a postcode lottery when it comes to getting the right support to give evidence against offenders. We must continue to encourage the criminal justice system and those that operate within it to ensure examples of best practice are shared and promoted and poor practices challenged.
The NSPCC will continue to put pressure on government to ensure that the criminal justice system becomes more child-friendly. We also want to see less disparity in the support available to child witnesses across the country so all children have the same opportunities when it comes to giving evidence against offenders.
Advocates are in a perfect position to take the lead in pushing for continued reform by seeking out appropriate training and sharing best practice with contemporaries. In doing so their own practice will also benefit as they improve their own skills of working with vulnerable witnesses and securing the best evidence.
By Lisa McCrindle, Policy Manager at NSPCC