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A short history of children’s evidence

by Fiona Donnelly
3 October 2019

In a 2013 address, Lord Judge, the former lord chief justice, recognised that the old idea of children being seen and not heard was based on good manners, but pointed out that it may have had the effect of undervaluing what children have to say.

For a long time, children were not seen as competent witnesses.

In R v Wallwork (1958), when a girl of five years had been called as a witness, Lord Goddard, the then lord chief justice, observed:

“the jury could not attach any value to the evidence of a child of five: it is ridiculous to suppose they could”

In R v CAZ (1990), Lord Lane CJ overruled this principle acknowledging:

“a change of attitude by parliament reflecting in its turn a change of attitude of public in general to the acceptability of evidence by young children and of increasing belief that the testimony of young children, when all precautions have been taken, may be just as reliable as that of their elders”.

This change of attitude was affirmed by Lord Judge in the Court of Appeal in R v Barker [2010] where he said of the four-and-a-half-year-old witness:

“She was indeed a compelling as well as competent witness. On all the evidence, this jury was entitled to conclude that the allegation was proved. Unless we simply resuscitate the tired and out-dated misconceptions about the evidence of children, there is no justifiable basis for interfering with the verdict.”

Registered intermediaries: Policy background

The use of intermediaries in respect of child witnesses was first proposed in 1989 by the Pigot Committee.

The Pigot Report recommended that judges should in exceptional cases have discretion to allow “the relaying of questions from counsel through a paediatrician, child psychiatrist, social worker or person who enjoys the child’s confidence”.

Although all those with an interest in the case would be able to communicate with the witness via the intermediary, it was envisaged that the child would not be able to see anyone other than the intermediary during questioning.

The committee acknowledged that the imposition of a third party between the advocate and the witness would represent a “substantial change” and that some of the advocate’s “forensic skills, timing, intonation and the rest, would be lost”.

It was also suggested that the child witness may be confused by being challenged by a person considered to be a friend.

However, the majority of the committee concluded that such objections were not fatal to this recommendation.

In their view, where it is “absolutely impossible” for counsel to communicate effectively with a child witness, there is little difference in principle between the use of an intermediary and the use of an interpreter for a witness who cannot speak English.

Similar to interpreters, it was suggested that the use of intermediaries is not ideal but may prevent the loss of crucial evidence necessary to do justice in a case.

One member of the committee dissented from this recommendation, however, arguing that the use of an intermediary would hinder rather than facilitate counsel in conducting the case.

This member suggested that it was preferable that greater opportunities were provided for counsel to establish a rapport with the child witness prior to the hearing to address communication difficulties.

Nine years later, the Home Office recommended in Speaking Up for Justice: Report of the Interdepartmental Working Group on the treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System that a statutory power to appoint a communicator or intermediary to facilitate communication with a vulnerable witness be created.

It was recommended that this measure should be used where necessary to assist the witness to give their best evidence at pre-trial hearing and at trial, provided the means of communication can be independently verified.

The development of a scheme for the accreditation of intermediaries was also proposed.

In relation to child witnesses, the interdepartmental group again drew an analogy with the role of interpreters in court, stating that the intermediary could explain the complex language of counsel to the witness.

It was suggested that such a measure may improve the quality of the witness’s evidence, save court time and reduce the stress of cross-examination for the witness.

It was acknowledged, however, that the intermediary would need considerable skill to avoid misrepresenting counsel or displaying any suggestion of partiality.

The group considered that training for legal professionals to communicate more effectively with vulnerable witnesses was not a substitute for the use of an intermediary and should take place alongside the introduction of the statutory power.

A registered intermediary (RI) scheme has been operating in England and Wales since 2007.

Surveys of the scheme show that it seems to be working from the perspective of the Intermediary and the witnesses who have benefitted from it.

Lawyers

Charles Lamb said “Lawyers, I suppose were children once”.

Based on research findings on the development of the typical child, I compiled a questionnaire for lawyers at different stages of their careers to see how much we knew about child development.

There were three groups:

  • those just starting out on their professional legal training
  • those out at least three years
  • those out more than ten years

The groups comprised a mixture of males and females, a mixture of those interested in criminal, civil and family work, a mixture of those who had children of their own and those who did not and a mixture of those who had worked with children often, sometimes or never.

There was limited accurate knowledge of child development among lawyers.

Males and females did not score any higher than each other. The more experienced did not have greater knowledge than those with less experience.

Those who had previously worked with children or had children of their own did not have any greater insight than those who had not worked with children or did not have children.

At what age do you think a typical child can estimate distance, size, age and speed?

I considered this in the context of two reports:

  • Measuring up: Evaluating implementation of Government commitments to young witnesses in criminal proceedings
  • The Experiences of Young Witnesses in Criminal Proceedings

Both reports focused on children in the criminal justice system. Their conclusions were remarkably similar, and both made the following recommendations:

  • a need for greater awareness of child development
  • improvement of questioning techniques
  • use of the registered intermediary scheme

Advocacy and the vulnerable training

In 2012, an EU Directive on establishing minimum standards on the rights, support and protection of victims of crime provided at Art 25(3):

“With due respect for the independence of the legal profession, Member States shall recommend that those responsible for the training of lawyers make available both general and specialist training to increase the awareness of lawyers of the needs of victims.”

The Law Society’s advocacy and the vulnerable training sessions allow lawyers to increase their awareness of child development and the needs of those with other vulnerabilities and improve their cross-examining techniques accordingly.

The key to the course is that the lawyer improves their own skills and learns by doing and by sharing skill reflection with peers.

A study of recommendations from over 18 different sources including recommendations in RI reports, and the Equal Treatment Bench Book shows that similar recommendations re-appear.

These are all made available in an accessible and practical format to those participating on this short hands-on course.

Fiona Donnelly is a solicitor and senior lecturer at Queen’s University Belfast. She is director of the advanced advocacy course for the Law Society of Northern Ireland.