Children and the law: new case may transform criminal courts' approach
A local authority has refused to let a six-year-old testify in court. It it wins the case could severely curtail use of child witnesses in trials
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Measures such as video links have improved conditions for children in court, but critics say they can still suffer 'significant trauma'. Illustration: Priscilla Coleman
Children may no longer be called to give evidence in the criminal courts except in the "most extraordinary circumstances", even if that means risking their abusers going free, following a case due to be heard in June.
The change could transform the approach of the criminal courts towards children, and involves the refusal of a local authority to let a six-year-old girl give evidence against her father in court.
The Crown Prosecution Service is demanding that the child is cross-examined over allegations of sexual abuse she has made against her father, including that of rape.
If the local authority wins in the crown court, a precedent will be set that will severely curtail the ability of the criminal courts to ask children to give direct evidence or to submit them to hostile cross-examinations.
If the local authority loses, however, it will take the case to the court of appeal. Its lawyers say that under European law, the court must rule in the child's favour.
This would create new case law, compelling all criminal courts in England, Wales and Northern Ireland to balance the human rights of the child against the right to a fair trial every time they consider calling a child to give evidence.
This, say legal experts, would make it almost impossible to justify the use of child witnesses.
According to research by the NSPCC and the Nuffield Foundation, to be published in June, the number of children called as witnesses by the criminal courts has increased by 60% in recent years.
Francis Wilkinson, a lawyer for the local authority concerned, said that he was "deeply concerned" by the increase in such witnesses – a rise from 30,000 children in 2006-07, to 48,000 in 2008-09. Wilkinson said the criminal courts were breaching EU law by calling children, sometimes as young as four and a half years old, to give evidence.
The landmark case is supported by other legal experts. One judge, who asked not to be named, said the current system of cross-examining children was not "fit for purpose". He said present methods "decrease significantly the accuracy of children's reports and may therefore thwart the fact-finding function of the criminal justice system".
He added: "We've achieved the worst of all possible worlds. The current system is absolutely absurd."
The Ministry of Justice has rejected Wilkinson's claims. "We do not believe children giving direct evidence is a breach of article 8 of the European convention on human rights," the department said. "Children are only required to give evidence when absolutely necessary in the interests of justice. In these cases we strive to ensure that everything is done to support [them]."
Arwel Jones, head of the law and procedure unit at the Crown Prosecution Service, said child witnesses could be crucial in securing convictions: "There will always be cases where, for the defendant to have a fair trial, the defence will need to be given the opportunity to ask questions of a child witness. Without that, it may well be difficult for a defendant to have a fair trial."
Martha Cover, head of Coram legal chambers and co–chair of the Association of Lawyers for Children, agreed: "The child's welfare is important but not paramount. Allowing children's words to be heard can be very helpful to the court. Children's evidence can be central, important and outweigh their welfare."
But Wilkinson said that by calling children, criminal courts were breaching article 8 of the convention. "The courts are, and have always been, guilty of completely ignoring European convention by failing to question whether their calling of children to give evidence is properly balancing the defendant's right to test the evidence, against the child's right not to be harmed by the process," he said.
Wilkinson acknowledged that special measures, such as being able to give evidence through a video-link, screens and the use of intermediaries, had improved conditions for children in court. But, he said, young people who give evidence still suffered "significant trauma".
"It is the fact of cross-examination – the knowledge that what you are doing is sending your father to prison and terminating your relationship with the person who has been your primary carer – that is troubling for child and adolescent psychologists."
An influential case in the supreme court in 2009 appears to support Wilkinson's claim. In her judgment, Lady Hale said she agreed with "numerous" psychiatrists dealing with children and adolescents who had "condemned as abusive the process in criminal law whereby a child was required to attend court to be cross-examined, often many months and sometimes years after the event in order to have his or her credibility impugned over abuse allegations".
The influential Measuring Up? national study into child witnesses, funded by the NSPCC and Nuffield Foundation, found that more than 50% of young witnesses experienced stress in the run-up to trials. Two-thirds found giving evidence severely upsetting.
The report, however, also found that 59% of the 172 children questioned thought they were treated fairly when they were cross-examined, compared with 37% who thought they had been treated unfairly. With hindsight, half identified something good or positive for them in having been a witness.
Wilkinson said it would "make almost no difference at all to the interests of justice" if children were not called as witnesses except in the most exceptional circumstances.
He said that direct evidence from children rarely, if ever, added to the mass of evidence already before the court, including video interviews, medical and hearsay evidence.
Wilkinson said: "It might be that some guilty people are acquitted if the practices of the family court were bought into the criminal courts, as this new case law would effectively achieve. But the job of the judge is to hear all the evidence and then – and only then – decide whether the child's evidence, given live in court, is key to the interests of justice.
"Under European law, they should already be making that calculation and weighing their answer up against the harm that will be done to that child by calling her up.
"That balancing act is not being done at the moment, and that is what is wrong with the current system."
He denied that people who had been accused had a right to cross-examine a child who had made allegations. "The right to cross-examine has lots of exceptions. Dragging children through the court process is of marginal added value."
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