Legal and Cultural Perspectives on the Role of Child Witnesses in Criminal Proceedings

In the discussion of whether a defendant is guilty or not, what is usually disregarded, is the fact that child witnesses are usually children who have suffered physical or sexual abuse with major psychological consequences.  As the number of such children increases, it is essential that we reform the system to be more protective and sensitive.  Despite the need for legislative reform, most problems concern the practices of those involved (lawyers, police, social workers) thus stressing the need for change in the prevailing culture.  To prove this, the current practices which take place in the investigative and prosecutorial stages of a child abuse case are examined, the role of the child witness at trial is analysed, and the need for the implementation of s.28 of the Youth Justice and Criminal Evidence Act 1999, which will allow for pre-recorded cross-examination is stressed.  Finally proposals are provided for any remaining cultural constraints. 

 

 

 

 

 

 

Introduction 

The aim of criminal law is to illustrate what kind of behaviour is acceptable and what not.  This is achieved through the use of “stigmatic punishment”, which essentially means that there is stigma attached to a person convicted of a criminal offence.  In order for this aim to be carried out, however, it must be proved beyond reasonable doubt that the accused is indeed guilty.  This paper is concerned with the way the criminal justice system focuses on the child as a “forensic object” in order to promote its own aims, or in other words, how the psychological and emotional wellbeing of the child is sacrificed at the altar of the criminal justice system in order to secure a safe conviction.  

In the discussion about the aims of criminal law and the best means to determine whether a defendant is guilty or not, what is usually disregarded, is the fact that child witnesses are usually children who have suffered physical or sexual abuse with major psychological consequences.  As the number of such children increases, it is essential that we reform the system to be more protective and sensitive. 

According to NSPCC research in 2006, 21% of children in the UK experience physical abuse at the hands of their parents with one-third of these cases being severe physical abuse.[1]  What is more, in the year of 2005-2006 ChildLine received almost 18,000 calls from abused children, amounting to more than two children per hour for every hour of the year.[2]  During the time period 2008-2009 8% of the calls ChildLine received, were about sexual abuse.[3]  Besides the apparent physical harm that children suffer in such cases, there is an even greater psychological trauma that cannot as easily be healed.  The last thing a system dedicated to the achievement of justice should be responsible of, is the second victimisation of these children and the extension of their psychological trauma.

My argument is that the current approach on the issue of child witness protection needs to be reconsidered.  Even though there is need for legislative reform, I argue that most problems concern the practices of those involved (lawyers, police, social workers) and in order for a real change to be brought about there must be a change in the prevailing culture.

In the attempt to prove this, I examine the current practices which take place in the investigative and prosecutorial stages of a child abuse case, then I analyse the role of the child witness at trial and stress the need for the implementation of s.28 of the Youth Justice and Criminal Evidence Act 1999, which will allow for the pre-recorded cross-examination of a child witness.  Finally I examine any cultural constraints that remain despite the potential implementation of s.28. 

Before I continue with my analysis, it is necessary to draw attention to the only aspect of the criminal justice system as regards child witnesses, which, in my opinion, has been more adequately developed than any other area; the aspect of testimonial competence.

 

Testimonial Competence

One of the most important issues when it comes to children’s evidence in criminal proceedings is that of testimonial competence.  Before going on to examine the child’s role as a witness, it is essential to analyse the current legal approach in relation to the competence of the child as this affects the criminal proceedings at every stage. 

According to the Achieving Best Evidence in Criminal Proceedings guidelines, the police officers and social workers who constitute the investigative team must not obtain evidence in the video-recorded interview simply to be used as evidence-in-chief at court, but they must also obtain evidence which will support the child’s competence to give evidence at court.[4]   

The meaning of testimonial competence has changed throughout the years.  At common law, in order to be considered competent one would have to demonstrate the capacity to understand the essence of taking the oath and the consequences of lying.  Although children were not excluded by law as witnesses at any age, it was extremely difficult for many children to pass this test in order to be eligible to give sworn evidence.[5]  With s.38 of the Children and Young Persons Act 1933, this connection between competence and the ability to understand the meaning of the oath was severed and, therefore, a child was permitted to give unsworn evidence even if s/he did not understand the meaning of the oath.[6]  However, whether the child would give unsworn evidence was under the discretion of the court since the court had to be persuaded that the child was of “sufficient intelligence” and could understand “the duty of speaking the truth”.  Moreover, due to the fact that no conviction was possible if it was founded on uncorroborated unsworn evidence,[7] the child’s unsworn testimony was devalued.

Despite the changes brought by s.33A of the Criminal Justice Act 1988, which abolished the distinction between sworn and unsworn child testimonies, the need for examining the child’s understanding of abstract concepts such as “truth” and “duty” remained.  What at first appeared as detachment from the need for the child to understand the oath or the duty to speak the truth, was in fact ineffective.  In essence, younger children could not appear at criminal courts since it was still very difficult to be qualified as competent witnesses.  This was supported by the Court of Appeal in the case of R v Wallwork[8] and the joint cases of R v Wright and R v. Ormerod[9] which suggest that the court is applying a minimum age policy which would not allow the reception of evidence from children of “extremely tender years, such as six” unless it is an exceptional situation.

The Pigot Committee in 1989 criticised this policy since its result was the immunity of paedophiles who abused children under 8 and the promotion of the abuse of children of that particular age group.  Therefore, in order to fill this gap and for all children to be heard, the committee recommended that all children under 14 should give unsworn evidence leaving it to the jury to decide how much weight should be given to the testimony based on the coherence, consistency and maturity of the child’s account.  This promising recommendation was implemented in s.52(2) of the Criminal Justice Act 1991 and following many difficulties in liberating the test of child competence from abstract concepts we are led to the present rules which determine witness competence.  These are found in the Youth Justice and Criminal Evidence Act 1999 (YJCEA) according to which all people irrespective of their age are presumed to be competent to testify at criminal court provided that they are able to understand the questions put to them and provide answers in a comprehensive manner.[10]  It is important to note that in determining the competence of children in a voir dire the court should also bear in mind the Special Measures Directions,[11] which may assist even very young children and/or disabled children understand the process and consequently not proved incompetent. 

Since the jurors must still be satisfied that the children can distinguish between truth and falsehood,[12] it is obligatory for the police and social workers when conducting the child’s video-interview to ask the appropriate questions, especially if the child is very young or has a learning difficulty, so that there is enough evidence to support the child’s competence if it becomes an issue.  This would also to reinforce the reliability of the evidence.[13]  The questions posed should no longer be concerned with obvious factual correctness as it used to be prior to the YJCEA 1999 but with real lies which include the intent to deceive.[14]  It should be noted, however, that there is no correlation between the ability of a child to distinguish truth from lies and the truthfulness of his/her account.  It is, therefore, important to note that intimidation or guilt, that a family member will be betrayed may affect the child’s ability to be truthful irrespective of whether s/he has answered the questions correctly or not.  As Hoyano and Keenan argue, the interviewers must be both cautious but also reassuring when interviewing a child as the manner of the interviewing might be critical as to how reliable the testimony is.[15]  Recent psychological research taken into account by the Canadian laws has indicated that when having children promise to tell the truth instead of reminding them of the adverse effects of not speaking the truth[16] (as is the current situation in English law), the likelihood that they will speak the truth increases as well as the likelihood that adults will accurately ascertain whether the child is lying or not.[17]  In a survey completed in four Canadian jurisdictions, it was concluded that 96% of the responding judges found that this reform was useful and 50% reported that they had not found an incompetent child under the new provision.[18]  It might, therefore, be a promising development in the English law as well. 

Another important issue is the requirement that the judge keeps the competence of the child under review due to the fact that competence relates to the whole of the child’s evidence (extending to the cross-examination) and not only in the pre-trial application context in the decision of the admissibility of the pre-recorded video.[19]  Therefore, it can be revisited during cross-examination in a voir dire in the absence of the jury,[20] provided that the child at that point cannot give intelligible answers especially if there is delay between the interview and the trial[21] or when the child appears not to distinguish between truths and lies as a result of a defensive mechanism.  It is questionable, however, whether a damaged, fearful and apprehensive child should have to go through the investigation procedure, be deprived of essential therapy, suffer delays by the prosecution not taking the case to trial, have to answer confusing questions in cross-examination and then be reassessed on the issue of competence and run the risk of mistrial.  This was the situation in the recent sexual abuse case in 2009 where a 4 year old girl had to testify at the Old Bailey.[22]  The convicted defendant appealed on the basis that the girl’s competence had to be re-examined, because during cross-examination she could not respond to the questions posed to her, despite the fact that during her interview she was capable of giving satisfactory answers demonstrating her ability to distinguish truth from lies.[23]

Bringing back into our recollection cases like R v Renshaw[24] in which Judge Pickles jailed a young woman who was intimidated to give evidence at court in the assault case against her partner, make obvious the catastrophic effects of a possible interpretation of Powell, where a girl was deemed to be incompetent for failing to answer questions posed to her, to mean that silence is equated to incompetence.  The Court of Appeal is, therefore, to be applauded for the decision it reached in the R v. B case in dismissing the defendant’s appeal, which made it clear that a non-verbal response is a possible way to provide an intelligible answer.[25]  This decision is an important development as it goes some way in protecting children (especially very young children, children with disabilities and children whose first language is not English) from claims of incompetence due to silence and therefore, from the adversarial process. 

The development of the law on competence, especially after the decision in R v. B, is one of the main achievements of the UK criminal justice system.  It is important because it gives children a “voice” and takes away from abusers the opportunity to escape conviction.  However, despite achievements in other areas relating to child witnesses much still needs to be done.  Therefore, I proceed to examine the investigative stage and the decision to prosecute. 

 

 

The investigative stage and the decision to prosecute

Assuming that the abused children have found the required self-confidence to decide that the harm suffered needs to be reported, despite the intimidation they might have faced from their abusers,[26] it is important to turn our attention towards the investigative role of the police and children’s social care.

In situations where a criminal offence has been conducted against a child and the perpetrator is to be brought into trial, there is need for a joint investigation of the situation both by a police officer and a social worker.[27]  This need for the police to get involved in child protection referrals accelerated with the increase of child victims of sexual abuse and the consequent legislation that permitted the use of pre-recorded video interviews of child witnesses in criminal trials.[28]

Due to the fact that the two agencies have different objectives, the relations between the police and the social workers are not always good.  Since the police follow the focus of criminal law on protecting society and children as a class by punishing the wrongdoer emphasis is given on the collection of evidence to prove beyond reasonable doubt that the offence has occurred and that the perpetrator has been correctly identified.  On the other hand, however, social workers emphasise “the rights of the victim to comfort and support”.[29]  Practitioners from both agencies are aware of the importance of appropriate ways of questioning children in investigative interviews in order for children to provide very accurate evidence of abuse.  There has been considerable psychological research indicating that,[30] which is available in the form of guidelines illustrating with examples how such interviews should be conducted.[31]  However, such guidelines might be disregarded since social workers are tempted to believe a child’s account and seek to comfort the child while obtaining evidence, whilst the police officers or the CPS lawyers, by taking into account research showing that children can be suggestible and may respond to leading questions and interviewer bias,[32] try to avoid any possible suggestion that the child was “encouraged, coached or bullied” into providing information and identifying the defendant.[33]

As Davies et al point out, the purposes of a video-recorded interview are to make sure whether an offence has been committed and by whom, to serve as an inquiry as to whether a child needs protection and to serve as an examination-in-chief in a criminal trial and therefore, also comply with the strict laws of evidence.  As they have concluded, such purposes are irreconcilable and the demands placed on the interviewers are unrealistic[34] because even with the help of detailed guidance, it is hard to meet them without specialised training.[35]  However, while today there is provision for training, Westcott argues that interviewers find it difficult to maintain the acquired skills and knowledge.  Unfortunately, “no convincing solutions have been put forward” to deal with this problem.[36]

The new guidelines on interviewing victims and witnesses take into account the 2010 ACPO[37] advice to improve the quality of video-recorded interviews with witnesses.[38]  Like its previous versions it emphasises the need for a careful planning of the interview[39] and the full involvement of the child in the whole process as well as the proper explanation to the child of the interview process.[40]  Moreover, it is stressed that no assumptions should be made on a particular child’s level of understanding of the process despite any previous experiences the child might had had with the public services.[41]

The interview should be conducted in four phases and there is detailed guidance as to how each stage should be conducted.[42]  Recognising what many psychologists have so far stressed out, Baroness Hale of Richmond has stated in Camberwell Green Youth Court case that a child witness can give the best evidence possible in a video-recorded interview given that the interview takes place early enough so that the memory of the child is not distorted, in an informal and comfortable setting and it is conducted by specially trained professionals who firstly ensure that the child understands the importance of telling the truth and then obtain the story of the child using understandable language and without the use of leading questions.[43]

Although the use of video-recorded interview is of significant importance in the protection of child witnesses from stress as their presence in court can be avoided, what was described by Baroness Hale of Richmond is an ideal version of what actually happens in practice.[44]  This argument is supported by recent evidence produced by Burton et al which show that there are times where there is considerable delay in making the video interview, there are still areas where police officers are not properly trained to interview children and there are times where the quality of the interview is very poor.[45]  Moreover, it was only recently in the Re B[46] case when the police officer and social worker disregarded almost entirely the ABE guidelines when interviewing a 5 year old girl who had allegedly been sexually abused by her father.  Some other instances involved failure to establish rapport, whilst any attempts to establish that the child could distinguish between truth and lies were poor.[47]  Moreover, interviewers tend to intervene with questions while a child provides information in the free narrative phase[48] even if the guidelines clearly state that “it is essential not to interrupt the witness during their narration to ask questions”.[49]  This could often lead to the distortion of information.  As Westcott and Kynan have observed, in more than half of the interviews in their study, no proper closure was made without even thanking the children for their efforts.[50]

This information is enough to suggest that despite any detailed guidelines and training available, some interviewers persist change.  Even though there has been much improvement and the conduct of the police officers and social workers is much better than that of lawyers, especially during the hostile cross-examination, it is still important to note that there are cultural constraints that still need to be eliminated.  This unwillingness to change and to take children’s needs seriously is also shown in the interviewers’ failure to provide children, especially the older ones, with the choice of whether to use a video recorded interview as their evidence-in-chief or to provide a written statement and give evidence in court through a live-link or behind a screen.[51]  This choice is very important since children may not be willing to send a video-recorded statement to the defence before trial in which s/he is identified to the defendant.  This failure to provide choice could also be attributed to the practitioners’ assumption that there is no such choice available, even if it is clearly stated in the guidelines.[52]  This calls for the availability of more training courses but also for more monitoring as to the extent practitioners actually follow the guidelines correctly after the knowledge and skill they have obtained during the courses.  Their skills should be tested since there is a difference between increase in knowledge and increase in skills.[53]

Until very recently, even if children did choose to provide video-recorded evidence, they could not do so if the police did not identify them as vulnerable witnesses requiring protection.[54]  Even though children should always be identified as vulnerable, Burton et al have criticised the police for identifying very few children as vulnerable witnesses requiring protection.  While child victims of sexual abuse were almost always assumed to be vulnerable, this was not always the case in relation to children who had witnessed a sexual offence against an adult victim.  Moreover, adolescents who were victims of physical abuse were less likely to be defined as vulnerable, while those who had been witnesses of domestic violence were not given so much attention.[55]  It was also observed that the older the child, the less were the probabilities that a video-recorded interview took place.  What is more, even where younger children were the victims no such interview was provided if the age of the defendant was close to the age of the victim.[56]  The consequence of such conduct was that the benefits of using a video-recorded interview were ignored and no advantage was obtained of them in the majority of cases involving child witnesses.[57]

With the reform of the Youth Justice and Criminal Evidence Act (YJCEA) 1999 by s.98 of the Coroners and Justice Act 2009, the age limit for which a child is eligible for special measures protection under section 16(1) (a) and s.21 is raised from 17 to 18 years and special protection is no longer assumed to be always available only for child victims involved in sexual or violent offences, thus making the special measures regime the same for all witnesses under the age of 18.  Such a simplification is welcome since it will reduce, if not eliminate the problem described above.  Now it will be less likely that the police will not identify children as vulnerable and requiring protection due to confusion resulting from perplexing rules of eligibility. 

With the exception of the above improvement the effect of which will be seen in the near future, the early investigative stage has, as Fortin argues, a “gloomy picture”[58] which is reinforced with the problem of the potential child witnesses not obtaining pre-trial therapy.  The CPS officers and prosecutors tend to refuse pre-trial therapy to children who need it, with the result being that severely traumatised children do not receive support.  This is done to promote the aims of the criminal justice system and to prevent the contamination of evidence even if it is not guaranteed that the trial will proceed or that there will actually be a conviction.[59]

Such conduct leads to question the effectiveness of the new scheme of providing special measures of protection to child witnesses, such as the provision for pre-recorded videos for their support in the early stages of the investigation.  It could be argued that such fear of contamination of evidence could be eliminated if the cross-examination of the witness was also pre-recorded.  However, given that s.28 of YJCEA 1999 has not yet been implemented, this problem can still be avoided through different means since it is generally emphasised that in case where the requirement for immediate therapy overrides the need for the child to appear as a credible witness at trial, then the criminal proceedings should be abandoned for the best interests of the child.[60]  However, even the possibility of abandoning the proceedings can be avoided since there are particular ways in which a child can receive therapy without contaminating the evidence and thus jeopardizing the strength of the prosecution’s case.  Of course, such therapy should first be explained to the CPS in order to consider whether it will have an adverse effect on the case.[61]

The guidance is a clear and positive step towards the consideration of the child’s welfare and support, but as with other provisions available for children, the provision for access to pre-trial therapy is not applied everywhere by everyone[62] leading to inconsistencies and confusion as to whether child witnesses are actually allowed to have access to such therapy.  This indicates, once more, the unwillingness to change and even the indifference of some practitioners, especially the CPS officers and prosecuting lawyers, to take children’s needs seriously.  Even if it is difficult to provide therapy correctly so that no evidence is contaminated, if the work of the professional therapists is conducted carefully and according to the guidelines,[63] then there is no reason for caution.  As a first step, merely an attempt to cooperate with skilful professionals undertaking therapeutic work with witnesses will be sufficient progress. 

Once the joint investigation has been conducted and there are findings that the case involves child abuse which amounts to a criminal offence, and the abuser has been accurately identified, it should then be decided whether it is appropriate to prosecute.  Such a decision depends on whether there is enough evidence to prosecute and whether such a decision is in the public interest.[64]  However, research has suggested that in some cases the police may decide not to proceed with the investigation of the case without receiving the advice of the CPS as to whether the case allows for prosecution.[65]  The police normally regard sexual abuse as a more serious offence and might, therefore, refrain from bringing other offences to the attention of the CPS.  But even in the cases involving sexual abuse, the decision of whether to prosecute is influenced by factors such as the time lapse between the alleged offence and the complaint[66] thus disregarding researches which state that the time needed for disclosure of the sexual abuse depends on the type of abuse and the child’s fear of the consequences.[67]  As Goodman-Brown et al[68] argue, children who have been abused by family members and fear the negative consequences of a possible disclosure, take more time to disclose.  Similar is the response of older children who feel guilty about the situation as they feel responsible for the abuse. 

Normally, the CPS’ decision to prosecute is based on whether there is sufficient evidence for a “realistic prospect of conviction”[69] which can be taken by viewing the child’s video-recorded interview and on whether the child can stand up to the cross-examination.  As Burton et al have found, decisions to drop cases on grounds of witness credibility have been made without the CPS even watching the video interviews due to time constraints.[70]  This is particularly alarming since it raises questions as to whether there is actually time for all the video interviews that ought to be made had they been conducted properly, and not only the limited number that currently exists.[71]

There is also particular concern in relation to children with mental or learning disabilities and children who do not speak English as their first language, since there is the danger that their case is dropped merely due to their disability or drawback, despite the detailed guidelines and provisions for their support in order to conduct an interview properly.[72]  This also raises issues of leaving children silenced and unprotected at the hands of their abusers as it will be more difficult for the social workers alone to provide for the safety of the children. 

The decision not to prosecute may also be based on the factor that it might not be in the public interest to do so.  The possibility that the prosecution may have adverse effects on the child’s physical or mental health, as well as the views and interests of the child, are also taken into account when making such decisions.[73]  Even though such an approach takes into account the welfare of the child and also, by taking into account his or her views, the autonomy of the child, it should not be forgotten that prosecution is the manifestation of the society’s disapproval of the abuse of children.  Given that the public awareness in relation to the problem of child abuse and specifically child sexual abuse has increased, concerns have been expressed that many child sexual abusers escape conviction.[74]  It could also be argued that through prosecution it is shown to the child that s/he is believed, supported and therefore, can be relieved from guilt[75] as it can be shown that the shame and guilt falls on the perpetrator and not on the child.  Of course, such arguments disregard the adversarial process, especially the hostility of cross-examination which can be so distressing that in the end, children feel anything but security, support and the feeling of being heard and understood.  Thus potential changes in the courtroom culture are a necessary requirement for the increase in the number of cases brought to trial. 

 

Protecting Child Witnesses at Trial

As it has already been said, with the reduction of the competence test to the bare minimum, the increase of the number of children in the criminal justice system was a logical consequence.  Children’s anxiety and fear about the process, however still is, just as it has been in the past, apparent.

As a result, during the 1990s, the NSPCC Young Witness Pack was designed to provide young witnesses with information about the court process and their role within it.[76]  Today, even more is done to provide support both before and throughout the trial thus acknowledging the vulnerability of child witnesses.[77]  Government funded Witness Care Units which are jointly run by the police and the CPS[78] and specialist young witness support schemes established in some areas, provide detailed information and support to each child witness across the country[79] with their ultimate aim being to ensure that witnesses give with more confidence and less stress their best evidence at court and especially prepare them as to the questioning style of cross examination.[80]

However, even though the scheme-supported witnesses found the support extremely helpful,[81] the development of such schemes is not systematic and their full realisation has not been achieved,[82] since even the best schemes do not fully prepare the children for their appearance in open court and their confrontation with the defendant.[83]  It is understandable that this can be distressing for children.  The Pigot Committee, taking into account the trauma children suffer in open court and especially during cross-examination, was extremely critical of the criminal justice system.[84]  The Committee proposed that children’s pre-recorded evidence should be shown in court at the trial thus substituting children’s evidence-in-chief, cross-examination and re-examination in open court.[85]

As it has been said before, reforms have been made allowing for pre-recorded evidence to substitute the child’s evidence-in-chief (albeit with many problems) but even though there is legislation providing for pre-recorded cross-examination, the provision has not yet been implemented so as to protect the rights of the defence to cross-examine all prosecution witnesses irrespective of their age.[86]  It is, however, important to note that when it comes to child witnesses, this approach is softened due to the use of special measures.[87]  However, many problems still persist despite the availability of such special measures.  An example, among the many problems, is the fact that the defendant can still see the witness giving evidence via live-link causing distress to the witness.  Some children even find it hard to follow when giving evidence via a live-link since it is confusing when people speak off-screen.[88]  Moreover, the unmodified layout of some courts still allows the child witnesses to encounter the defendant or his supporters in the public court areas, even if the child had given evidence via a live-link.[89]  Implementing s.28 YJCEA 1999 would have many potential advantages in improving the quality of evidence, allowing for better pre-trial decisions and preparation both by the prosecution and the defence, and would have the potential of minimizing system abuse of child witnesses. 

It is true that with the passage of time the quality of witness’ evidence, and particularly child witness’ evidence, deteriorates due to poor recollection of past events.[90]  Given that usually there is a considerable time gap between the pre-recorded video interview and the cross-examination, it allows for the cross-examiner to exploit the deterioration of the child’s memory to discredit the child.  As Loftus states, “giving the event information a chance to fade in memory makes it easier to introduce misleading information”.[91]  What is more, research suggests that when the witness has a learning disability, the jury values their evidence as significantly less competent, credible and accurate compared to a witness without disabilities.[92]  This coupled with the distortion of the memory of the disabled child due to the time lapse, can have a catastrophic effect for the prosecution case.  Such problems can be avoided with a pre-recorded cross-examination as the child’s evidence can be captured when they are fresh.  As Hoyano and Keenan argue, the jury will also be less distorted when it comes to assessing the maturity of the child since they will view the cross-examination of the child when s/he was of the same cognitive development as when the offence was reported.[93]

Since the testimony will be pre-recorded, it allows the prosecution to reassess the decision to prosecute especially if the child’s evidence is damaging for the prosecution’s case.  Moreover, the prosecutors are better equipped when discussing with the defence about guilty pleas since there will be concrete evidence of the child’s cross-examination strength and prosecutors would no longer rely on predictions of the case.[94]  Similarly, the defence could also benefit because in cases where charges are dropped, no stigma for being tried for child abuse will be attached on the defendant.  If on the other hand charges are not dropped, the defence will be able to make more realistic predictions about the conviction prospects and therefore, advice their client accordingly at a relatively early stage of the process.[95]

When it comes to the admissibility of children’s evidence either at examination-in-chief or at cross-examination, the judges can resolve the issue at the end of the hearing without the need to interrupt the child.[96]  Moreover, there will be no need for the jury to wait for a voir dire to be conducted during trial.  Similarly, when it comes to assessing a child’s competence at cross-examination, this can be done by avoiding the risk of mistrial, since it will be up to the jury at that point to decide whether the child is inaccurate or untruthful as is the situation in Western Australia.[97]

As trials can become shorter because delays and postponements can be avoided, children’s anxiety can be reduced significantly.  Children can also receive therapy at an earlier stage,[98] since there will no longer be the fear by the prosecution of contamination of evidence as previously discussed.  In case where there is need for re-trial the same pre-recorded evidence can be used without the child undergoing the same process again.[99]  In this way children’s welfare can become a major part of the criminal justice system. 

Of course it should be noted that such an implementation is not free from drawbacks.  Many prosecution lawyers argue that the use of technological means make it difficult for the jury to connect with the proceedings and the complainant as a human being, since evidence is presented in a way which cannot persuade the jury[100] thus making it harder to assess the credibility of the child.  It is suggested that pre-trial hearings increase this problem[101] which already exists to some extent through the use of live-link testimonies.  It is true that many prosecutors in Western Australia also resisted the use of pre-recorded evidence due to the reasons expressed above but after its implementation it has been proved that such resistance was not well justified.[102]

Another concern expressed by the defence lawyers is the fact that they will be unable to cross-examine the complainant, who is the most important prosecution witness, at an early stage, before the trial is scheduled, due to the fact that they can only start the preparation of the case once the prosecution case is fully disclosed.  Unfortunately, such procedures often cause delays.  Apart from that, it also takes time for a defence witness to disclose information and therefore, defendants cannot instruct their lawyers properly at an early stage.  Consequently, one of the greatest advantages of the pre-recorded cross-examination (reduction of the time the child is in the criminal justice system) is defeated.[103]  Despite the weight such an argument carries, it should be noted that since the child complainants are usually called to give evidence before any other witness and since the pre-recorded interviews reveal the child’s credibility better than a written statement[104] the defence can still have the advantage of preparing more effectively.

Moreover, the experience of Western Australia where a version of the “full Pigot” scheme has been used since 1992,[105] is a successful example for the implementation of s.28.  Even though initially the pre-recorded cross-examinations were not conducted a long time before the trial, with the passage of time this has significantly changed with children’s evidence being completed even six months earlier than the usual time needed when giving evidence at trial and “on average within seven months of the start of criminal proceedings”.[106]

Concerns about the defendants’ right to ask for the cross-examination of the of the child again at trial in situations where further evidence emerges and concerns about the traumatic effects this might have on the child[107] have not proven to be as a serious problem as originally thought because according to reports such a request to a child has rarely been made.[108]

Of course in England and Wales s.28(6)(a) YJCEA 1999 itself provides, as the law in Western Australia, a solution to this problem since under the section further cross-examination is only permitted where the applicant can demonstrate that the fresh evidence s/he is now aware of “could not with reasonable diligence” have been ascertained during the first cross-examination.  However, s.28(6)(b) permits for further cross-examination when “for any other reason it is in the interests of justice”.  Such a provision was inserted so as to ensure that the defendant’s right to a fair trial under Article 6 ECHR would not constitute a reason for scrutinising pre-trial cross-examination.  Such a provision shows extreme and unnecessary caution since the predecessor of the European Court of Human Rights has ruled inadmissible complaints that restrictions on further cross-examination constituted a breach of Article 6.[109]

With this provision the only result was concern that defendants could misuse it and the solution for many being the non-implementation of the entire section instead of its amendment, thus trapping ourselves in a circle of not wanting to implement the section in case we traumatise children more and not wanting to implement it with variation in case we do injustice to the defendant.  In both situations, it is the child who loses out. 

The government has recognised the potential advantages such an implementation could have and has decided to take into account the developing practices of Western Australia and other jurisdictions when developing rules and guidance in relation to s.28.  The government also recognised that such an implementation would help a small number of witnesses who previously could not access justice to do so and, therefore, stated that there is still need to “retain and implement section 28”.[110]  However, they have rejected the idea of creating a pilot study to test the effectiveness of s.28 since such an evaluation would not be possible due to the small number of witnesses who would benefit from it.[111]

It was only in May 2009, about two months after the government’s response when the four year old girl was cross-examined at the Old Bailey by barristers via a video-link.[112]  The criminal justice system was much criticised once again with the argument being that there must be a better way to do justice for toddlers because under the current practices of cross-examination, justice may be done to young victims but not to toddlers.[113]  It is true that the government is to be applauded for supporting the implementation of pre-trial cross-examination despite the strong opposition by the Criminal Bar Association.[114]  However, the fact that the pilot study is not feasible at the moment makes any prospect for implementation in the near future very distant.  Therefore, despite the government’s intentions and despite the prompting by judges such as Waller L.J (in a 2009 civil child protection judgment) that he has always been persuaded that implementing “full Pigot” would have many practical advantages,[115] very young children must still suffer in the adversarial process.  Meanwhile, many other jurisdictions such as South Australia, Queensland and the Northern Territory, follow Western Australia’s example in the implementation of versions of “full Pigot”.[116]

With the relaxation of the primary rule[117] by the Coroners and Justice Act 2009 the legislative presumption that a special measures direction will be made by the court in relation to the admission of the evidence-in-chief in the form of a video recording if possible, (otherwise via a live-link) will be able to be set aside when it comes to sexual offences, kidnapping, physical violence and neglect, which was not possible before.[118]  With this change, the presumption that in all sexual cases pre-recorded cross-examination will be in the child’s best interests irrespective of their wishes no longer exists as children’s choices will be taken more seriously and therefore, this rigidity can no longer be a problem for unsuccessful workability of s.28. 

Since the rigid primary rule also extended to the defence witnesses and not only to the prosecution witnesses, it was used as a reason to prevent the implementation of “full Pigot” due to the fact that it would create many practical problems, despite the good intentions to assist that category of vulnerable and intimidated witnesses to give their best evidence.  The practical problems include by whom and where the defence witnesses would be video-interviewed, especially for the examination-in-chief, given that the technology needed for their creation is only available at the police stations.  Obviously, the defence counsel cannot and will not leave their witnesses to the police or social workers, despite their special training under the ABE guidelines, since the defendants themselves find them hostile.  Further problems include as to when the disclosure of the pre-recorded interview to the prosecution will be made, and if there is danger that disclosure before trial could result to the prosecution “tailoring its evidence to the defence case”.[119]  Similar concerns exist as to when the mandatory pre-trial cross examination by the prosecution will take place.[120]

Today in England and Wales the dismantling of the rigid primary rule solves partly the above problems making it no longer so difficult to implement s.28.[121]  It could be argued that it could even be more sensible approach to have the measure only available to complainants as in Western Australia[122] or generally to prosecution witnesses as is the case in Queensland.[123]  Hopefully, with the existing amendments, s.28 will be workable enough so as not to call for the need of the defence witnesses to be completely exempted from the measure and this necessitates extensive research on the effectiveness of special measures in relation to defence witnesses.[124]

A structural problem relating to s.28 which still remains, however, is the requirement by the provision that a pre-recorded video interview to be used as evidence-in-chief is admitted as a pre-condition to making the pre-trial cross-examination video.[125]  As Hoyano and Keenan argue, the Act does not even provide a “residual judicial discretion” to allow for a pre-trial video-recorded cross-examination where, for example, the decision of the police not to conduct a video interview was ill-judged and, therefore, in breach of the ABE guidelines.

This is especially problematic if seen in light of a study by Plotnikoff and Woolfson who found that 35% of the participating children did not give evidence in the form of a videotaped interview.[126]  Similarly, Burton et al have found that only about a quarter of the children in their study gave evidence in this form.[127]  There is also complete disregard of the possibility that, for example, due to poor interviewing techniques or due to the wishes of the witness, the prosecution might choose to video record the witness examination-in-chief at a pre-trial hearing with the cross-examination being followed immediately,[128] as is the situation in Western Australia[129] (where the use of videotaped interviews as evidence-in-chief is not prioritised because the judiciary finds that having the whole evidence of the children at a pre-trial hearing is very successful).[130]

The flexibility of being able to choose how to provide evidence even at cross-examination would be a welcome change which can only be achieved by the amendment of the statute.  Since the other problems stated above, which could have hindered the launch of a pilot study to test the effectiveness of s.28 can be solved, the only reason left to hinder it, is the small number of witnesses that is directed to (only child sexual abuse victims).[131]

Although this provision makes the special measure more widely available than originally intended,[132] it could be argued that if this measure was available to all children under 18 who have suffered sexual abuse or physical harm, as is the situation in Western Australia, difficulties as to the launching of the pilot study due to the limited number of children benefiting from the provision would not be present anymore.  Even if children suffering sexual abuse are to benefit more from this, it is true that cross-examination can still be harrowing for children suffering physical abuse as well.

As it has already been proved, conclusions and arguments that children’s evidence can now be taken in non-intimidating surroundings and that children no longer spend so much time in the criminal justice system have been far from true.  Therefore, arguments by Birch and Powel that the criminal justice system has proved to be, to a great extent, successful in protecting child witnesses without the need of implementing s.28[133] are ill-founded. 

It is true that there have been attempts to fast-track child abuse cases, to effectively improve the preparation and progression of cases and to provide victim and witness care but delay is still as a crucial problem today as it was in 1989 when the Pigot Committee recommended pre-trial cross-examination.[134]  As Plotnikoff and Woolfson have found, such delays have caused fright, nervousness, anxiety, depression, insomnia and even self-harming to the children involved in their study.[135]

Furthermore, no statistical evidence has been provided by the CPS or the Home Office to support the claim that the fast-tracking of the child abuse cases has been so successful that “full Pigot” is “no longer necessary or even advisable”.[136]  Consequently such arguments can no longer be persuasive.  On the contrary, following the changes introduced by the Coroners and Justice Act 2009, it is arguably the most appropriate time to implement s.28 since many of the constraints have been resolved.  However, over-enthusiasm for technological solutions is very dangerous as it takes our attention away from more fundamental problems which are embedded in the system such as the cultural aspects which disempower any attempt for progress irrespective of how pioneering a country’s provisions for protection may be.  It is this aspect which I proceed to examine. 

 

Cultural Constraints

Taking cross-examination away from the main trial process will have many benefits for the child but this will not resolve the most fundamental problem, which is the experience of being cross-examined.  The mere relocation of the cross-examination will not change the character in which the defence counsel will conduct the cross-examination.  Even though the jury will be absent during the pre-trial cross-examination, barristers will proceed having in their mind that the video will be viewed at a later point by the jury.[137]  Therefore, the technological progress does not provide for the prevention of the defence counsel from undermining the child’s credibility through the use of tactics which take advantage of the child’s youth and inexperience.  For example, Plotnikoff and Woolfson have found that 65% of the 182 young prosecution witnesses that participated in their study “experienced problems of comprehension, complexity, questions that were too fast, or having their answers talked over”.  Young participants in all age groups faced the same problems, including older teenagers.[138]  Moreover, there were complaints that questions were “too fast, repetitive, jumped around in time”, “focused on details that seemed unrelated to the substance of the case” and “attempted to put words in their mouth”.[139]  Almost half of the children characterised defence lawyers as “sarcastic”, “rude”, “aggressive” or “cross”.[140]  It is not an exaggeration to say that this is the very aim of the defence lawyers.[141]  Intimidation, coercion and confusion are the means through which the defence counsel can unjustly prove that the incident has never happened, or that the complainant was merely persuaded by another person to provide false allegations against the defendant.  For example, in the recent case of R v. B leading questions with tag endings were used, even though it is well known that children are more susceptible to suggestion.[142]  Therefore, the technological advances fail to address the power imbalances that exist between an adult and a child or the accused and the accuser.[143]  This inequality of power is masked behind concerns to protect the rights of defendants at trial.  This is supported by some participants at the Criminal Bar Association Young Witness Conference that took place in April 2010, who claimed that using suggestive methods when questioning children is “integral to the defendant’s right to a fair trial” as they should be able to “put their case” even to a child witness.[144]  Other manipulative techniques involve the use of previous sexual behaviour in cases involving sexual abuse, especially of females, even if issues of consent do not arise and even if the use of previous sexual history of the complainant can no longer be freely used at court.[145]  It has been observed that the closer the child is to the consent age, the more are the allegations that the child has been provocative.[146]  In this way, sexually abused children must face this horrific reliving of their abuse and be additionally accused by an “ethical” adult who is an authority figure, that the sexual abuse was a result of her provocative behaviour.  This raises questions as to whether, in the situation where a girl actually had previous sexual experience, she deserves less protection by the criminal justice system based on the mere fact that her sexual purity is questionable. 

A simple suggestion that these techniques must change, or that lawyers must merely be trained so as to be more sensitive when it comes to cross-examining children, is at best inadequate and at worst naïve, when seen in isolation.  What is actually needed is to look beyond these behaviours in order to realise that the problem is structural.  In this way we can understand why witnesses are treated with disrespect, which is the root of the problem, instead of focusing on the apparent problem.  The answer lies in the “inherently combative nature of the adversarial advocacy” and the inability of the judges to adequately regulate such behaviours.[147]  In advocacy texts, parties are compared to soldiers or gladiators ready to strike their enemies at the battlefield.[148]  Similarly, advocacy manuals speak of the need of barristers to “attack” witnesses at cross-examination.[149]  This kind of metaphors, encourage advocates to use tactics that humiliate, intimidate and confuse witnesses as described above.  Even if under the Code of Conduct of the Bar of England and Wales a barrister may not “make statements or ask questions which are merely scandalous or intended or calculated only to vilify, insult or annoy either a witness or any other person”[150] and may not “suggest that a victim, witness or other person is guilty of crime, fraud or misconduct”,[151] research into the way rape trials are conducted in relation to adult women suggest that the code of conduct is routinely breached at cross-examination[152] without intervention by the judge or prosecutor.

According to the research study conducted by Plotnikoff and Woolfson, children’s complaints suggest that the code is breached in a similar way in relation to child victims and witnesses in relation to a wide range of offences and not merely rape cases.[153]  This result could be attributed to a perception by the defence barristers that their ethical duty towards witnesses and victims is at conflict with their duty to “promote and protect fearlessly and by all proper means the client’s best interests”[154] thus making it easier for them to regard the distressing experience of the witness as unavoidable.  As Ellison argues, the “adversary system has been allowed to become its own excuse”.[155]

This problem is further exacerbated by the judges’ limited intervention to restrict unnecessary and prolonged cross-examination and vexatious, offensive or oppressive questioning methods despite his/her common law duty to do so.[156]  This is due to the fact that despite this duty, and the duty to ensure the fairness of the criminal proceedings, the judge should make sure that his/her impartiality remains intact.  As the Court of Appeal made clear in the Gunning case[157] if the judge’s interventions are to such an extend which deprive the defendant’s entitlement to develop his evidence, then the trial will be considered as a mistrial even if there is no allegation that hostility towards the accused was present in the judge’s questioning. 

Judges themselves are also concerned about their inability to intervene since that renders them unable to change the culture towards the cross-examination of children.  At a young witness seminar in 2010, chaired by Lord Justice Hooper, a judge additionally observed that even if the advocates’ poor practice is reported to the head of chambers, advocates come back and their conduct is exactly the same; their primary role is to “get the client off and they will”.[158]  This unwillingness to depart from such adversarial methods does not leave much room for the judges for further intervention despite their readiness to contribute to this culture shift. 

Perhaps a completely different trial process such as that suggested by some feminists could have more effective results than the mere adjustment of the traditional adversarial process to accommodate the needs of the vulnerable witnesses since competitiveness and balancing exercises between the needs of the witnesses and defendants will no longer be necessary.  Instead, based on Carol Gilligan’s theory of male and female reasoning, it is suggested that a more co-operative system, based on female reasoning, which does not hinder the “expression of concern for the person on other side”[159] would be more appropriate for vulnerable witnesses and especially children.  As Menkel-Meadow argues, a system based on an ethic of care and responsibility for others may supersede “the macho ethic of the courtroom battle”.[160]  Therefore, this different form of advocacy will resemble a “conversation” with the fact finder and rely on relationship construction with the jury for its effectiveness instead of “persuasive intimidation”.[161]  Such an approach, however, demands massive reconstruction of the whole system which not only is a time-consuming procedure but will also be opposed by advocates themselves. 

Therefore, in order to improve the position of child witnesses in the short-term, more should be done to promote the role of intermediaries, who according to the innovative s.29 of the YJCEA are given the power to provide communication and explanation of questions and answers between the witnesses and the court.  As a result, intermediaries may assess the abilities of the witnesses and advise the court whether there is need to modify the lawyer’s questions, before the witness gives evidence, so that more reliable answers are produced.[162]  According to a survey in 2009, meetings which allow for the pre-planning and modification of counsel’s questioning methods were only conducted in fewer than half of the trials where intermediaries were used, whereas in 2010 the percentage increased to 61%.[163]  Fortunately, there is a positive trend towards the pre-planning of questioning methods which allows us to be optimistic as to the effectiveness of the use of intermediaries.  It is also a positive step that judges stress in their judgments how valuable the use of intermediaries is.[164] However, it is unfortunate that young children, as was the case in R v. B, are not provided the assistance of an intermediary.  This suggests that greater efforts are required so that intermediaries are more widely used.  In my opinion this can be achieved if during the training courses of investigators, lawyers and judges, the need for intermediaries in the system is strongly emphasised based on the reasoning that children deserve protection as human beings and deserve to be heard and have their accounts taken seriously.  Moreover, Plotnikoff and Woolfson’s proposal for the development of a proper complaints procedure where barristers will be reported to professional bodies if they persist to use “developmentally inappropriate questioning following judicial intervention”[165] is also promising as it may deter inappropriate behaviour at trial.  Of course, such a procedure must be accompanied by appropriate penalties so that it will be effective. 

 

 

Conclusion

Recent years have seen great attempts to modernise the legal approach as regards the treatment of child witnesses in the criminal justice process.  However, certain important failures overshadow these attempts.  The most obvious of these failures is the non-implementation of s.28 and the prevailing culture at the investigative stage but especially at cross-examination. 

This also renders UK law potentially incompatible with a number of international instruments.  The most obvious instrument is the UN Convention on the Rights of the Child and especially Article 3 which provides for the best interests of the child and Article 19 which provides for effective measures for the “identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment”.  These articles are potentially breached insofar as the UK law is seen to victimise children for a second time not only with respect to the hostile process they must go through but also with the deprivation of essential therapy until the trial is over.  The Committee on the Rights of the Child has observed this and in the last 9 years criticised the UK in that it lacks effective procedures to investigate and prosecute child abuse cases while ensuring that the child involved is protected.[166]

Similar conflicts arise at a regional level, especially as regards the EU Council Framework Decision on the standing of victims in criminal proceedings.[167]  According to Article 3, Member States should ensure that victims are questioned only insofar as necessary for the purpose of criminal proceedings and Article 8(4) provides for the protection of victims from giving evidence in open court.  In Pupino case the Grand Chamber held that Italy in failing to authorise children to give their evidence out of court, was in violation of the Framework Decision.[168]  This judgment shows that the non-implementation of s.28 may be in potential breach of EU law and also removes any concerns that implementation of s.28 might be in breach of EU law in relation to defendants’ rights.

As I have proved, now it is the right time to implement s.28, provided that it is extended to child complainants beyond sexual abuse cases.  This could be combined with s.29 which provides for the use of intermediaries throughout the criminal justice process.  If these two provisions are combined, not only will it provide a more comprehensive system of protection for child witnesses, but it will also be a significant step towards the reformulation of the culture which restricts progress.  This is due to the fact that by the use of intermediaries, the process will be more like a dialogue and less like a battlefield.  In this way s.29 can be used both as the urgent change we need, and as a step towards the long process of cultural reconstruction. 

I realise that this culture reconstruction is not easy and will not happen overnight.  However the use of s.28 in combination with s.29 and the reconsideration of the ethical boundaries of the barristers in their codes combined with a proper complaints procedure can be a tremendously important step towards the right direction.

 

 

 

 

BIBLIOGRAPHY

 

Primary Sources

Legislation

UK

Children and Young Persons Act 1933

Coroners and Justice Act 2009

Criminal Justice Act 1988

Criminal Justice Act 1991

Youth Justice and Criminal Evidence Act 1999

 

            Western Australia

Evidence Act 1906

 

            Queensland

Evidence (Protection of Children) Amendment Act 2003

 

            Regional

Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)

Council Framework Decision (EC) 2001/220/JHA on the standing of victims in criminal proceedings [2001]

 

            International

United Nations Convention on the Rights of the Child

 

 

Cases

            UK

R (on the application of D) v. Camberwell Green Youth Court [2005] 1 W.L.R 393

R v. B [2010] EWCA Crim 4 (CA)

R v. Gunning [1980] Crim. L.R. 592 (CA)

R v. Hayes [1977] 1 WLR 234

R v. Powell [2006] EWCA Crim 3

R v. Renshaw [1989] Crim. L.R. 811

R v. Wallwork (1958) 42 Cr. App. R. 153 (CA)

R v. Wright; R v. Ormerod (1990) 90 Cr. App. R. 91 (CA)

Re B (allegations of sexual abuse: child’s evidence) [2006] EWCA Civ 773

Re W (Children) [2009] EWCA Civ 644

Wong Kam-Ming v. R [1980] A.C. 247

Western Australia

R v. Stevenson 118 A Crim R 20 [2000] WASCA 301

 

            Regional

Case C-105/03 Criminal Proceedings against Maria Pupino [2005]

Hans Otto Theodoor Finkensieper v. The Netherlands  (App no 19525/92) (1995) (EComHR)

 

Secondary Sources

Articles

Caroline Keenan and Lee Maitland, “There Ought to Be a Law Against It: Police Evaluation of the Efficacy of Prosecution in a Case of Child Abuse” (1999) 11 CFLQ 397

Carrie Menkel-Meadow, “Portia in a Different Voice: Speculations on a Woman’s Lawyering Process” (1985) 1 Berkeley Women’s L. J. 39

Debbie Cooper, “Pigot Unfulfilled: Video-recorded Cross-examination under Section 28 of the YJCEA 1999” [2005] Crim. L.R. 456

Elizabeth Thornburg, “Metaphors Matter: How Images of Battle, Sports and Sex Shape the Adversary System” (1995) 10 Wis. Women’s L.J. 225

Helen Westcott “Child Witness Testimony: What do we Know and where are we Going” (2006) 18 CFLQ 175

Helen Westcott and Sally Kynan, “Interviewer Practice in Investigative Interviews for suspected Child Sexual Abuse” (2006) 12 Psychology, Crime and Law 367

Jennifer Temkin, “Disability, Child Abuse and Criminal Justice” (1994) 57 Mod L Rev 402

Joyce Plotnikoff and Richard Woolfson, “Cross-examining Children – Testing not Trickery” [2010] Arch. Rev. 7

Louise Ellison, “The Mosaic Art?: Cross-examination and the Vulnerable Witness” (2001) 21 LS 353

Mandy Burton, Roger Evans and Andrew Saunders, “Protecting Children in Criminal Proceedings: Parity for Child Witnesses and Child Defendants” (2006) 18 CFLQ 397

Matthew Hall, “Children Giving Evidence through Special Measures in the Criminal Courts: Progress and Problems” (2009) 21 CFLQ 65

Nicholas Bala, Kang Lee, R.C.L Lindsay and Victoria Talwar, “The Competency of Children to Testify: Psychological Research Informing Canadian Law Reform” (2010) 18 Intel J of Child Rts 53

Ray Bull, “The Investigative Interviewing of Children and other Vulnerable Witnesses: Psychological Research and Working/Professional Practice” (2010) 15 Legal and Criminological Psychology 5

Tina Goodman-Brown, Robin Edelstein, Gail Goodman, David Jones and David Gordon, “Why Children Tell: A Model of Children’s Disclosure of Sexual Abuse” (2003) 27 Child Abuse and Neglect 525

 

 

Books

Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Harvard University Press, USA 1982)

Elizabeth Loftus, Eyewitness Testimony (Harvard University Press, USA 1996)

Emily Driver and Audrey Droisen (eds), Child Sexual Abuse: Feminist Perspectives (MacMillan Press, London 1989)

Jane Fortin, Children’s Rights and the Developing Law (3rd edn 2009, CUP New York)

Laura Hoyano and Caroline Keenan, Child Abuse: Law and Policy across Boundaries (2nd edn OUP, New York 2010)

Louise Ellison, The Adversarial Process and the Vulnerable Witness (OUP, London 2001)

Mary Childs and Louise Ellison (eds), Feminist Perspectives on Evidence (Cavendish Publishing, London 2000)

Robert McPeake (ed), Advocacy (15th edn OUP, USA 2010)

Sue Lees, Carnal Knowledge – Rape on Trial (Penguin, London 1996)

 

Newspaper Articles

Andrew Anthony, “Baby P Stepfather Rape Case Raises Questions over Impact on Child Witnesses” Guardian (London 3 May 2009) <http://www.guardian.co.uk/society/2009/may/03/child-witnesses-baby-p-stepfather> accessed 14 June 2011

BBC News “Baby P Man Guilty of Raping Girl” (London 1 May 2009) <http://news.bbc.co.uk/go/pr/fr/-/1/hi/england/london/8029499.stm> accessed 14 June 2011

BBC News “Rape by Baby P Man Sparks Inquiry” (London 2 May 2009) <http://news.bbc.co.uk/go/pr/fr/-/1/hi/england/london/8030299.stm> accessed 14 June 2011

Jamie Doward, “NSPCC Boss Says More Children Should be Trusted as Abuse Witnesses” Guardian (London 3 May 2009) <http://www.guardian.co.uk/society/2009/may/03/children-abuse-witnesses-nspcc> accessed 14 June 2011

Mark Hughes, “Call for Reform over Child Witnesses in Court” The Independent (London 22 May 2009) <http://www.independent.co.uk/news/uk/crime/call-for-reform-over-child-witnesses-in-court-1689223.html> accessed 14 February 2011

Martin Childs, “James Pickles: Judge who Caused Controversy both in and out of the Courtroom”, The Independent (London 31 December 2010) <http://www.independent.co.uk/news/obituaries/james-pickles-judge-who-caused-controversy-in-and-out-of-the-courtroom.2172623.html> accessed 15 March 2011

 

Reports and Guidance

Association of Chief Police Officers (ACPO) National Investigative Interviewing Strategic Steering Group, Advice on the Structure of Visually Recorded Witness Interviews “Advice” (August 2010)

Australian Law Reform Commission, Seen and Heard: Priority for Children in the Legal Process “ALRC Report 84” (1997 Sydney)

Becky Hamlyn, Andrew Phelps, Jenny Turtle and Ghazala Sattar, Are Special Measures Working? Evidence from Surveys of Vulnerable and Intimidated Witnesses “Research” (Home Office Research Study 283, Development and Statistics Directorate, June 2004)

Committee on the Rights of the Child, “Consideration of Reports Submitted by States Parties under Article 44 of the Convention.  Concluding observations: United Kingdom of Great Britain and Northern Ireland” 9 October 2002 CRC/C/15/Add.188

Committee on the Rights of the Child, “Consideration of Reports Submitted by States Parties under Article 44 of the Convention.  Concluding observations: United Kingdom of Great Britain and Northern Ireland” 20 October 2008 CRC/C/GBR/CO/4

CPS, “CPS Policy on Prosecuting Criminal Cases Involving Children and Young People as Victims and Witnesses” (CPS Policy Directorate, June 2006)

CPS, The Code for Crown Prosecutors (Blackburns of Bolton, UK 2010)

General Council of the Bar of England and Wales, Code of Conduct of the Bar of England and Wales and Written Standards for the Conduct of Professional Work (8th edn, London 2004)

Gwynn Davies, Laura Hoyano, Caroline Keenan, Lee Maitland and Rod Morgan, An Assessment of the Admissibility and Sufficiency of Evidence in Child Abuse Prosecutions (Crown Copyright 1999) “Report for the Home Office Research Development and Statistics Directorate”

Hansard HC vol 329 col 390 (15 April 1999)

HM Government, “Cross Government Action Plan on Sexual Violence and Abuse” (April 2007)

John Hutton, Ross Cranston and Charles Clarke, Provision Therapy for Child Witnesses Prior to a Criminal Trial: Practice Guidance (2000 CPS) <http://www.cps.gov.uk/publications/prosecution/therapychild.html> accessed 29 November 2010

Joyce Plotnikoff and Richard Woolfson, “In their Own Words: The Experiences of 50 Young Witnesses in Criminal Proceedings” “Report” (2004, NSPCC)

Joyce Plotnikoff and Richard Woolfson, “Measuring Up? Evaluating Implementation of Government Commitments to Young Witnesses in Criminal Proceedings” “Report” (NSPCC 2009)

Joyce Plotnikoff and Richard Woolfson, Evaluation of Young Witness Support: Examining the Impact on Witnesses and the Criminal Justice System “Report” (2007a Lexicon Limited, UK)

Kathleen Murray, Live Television Link: An Evaluation of its use by Child Witnesses -The Scottish office of Central Research Unit (Stationary Office Books, Edinburgh 1995)

Mandy Burton, Roger Evans and Andrew Sanders, “Are Special Measures for Vulnerable and Intimidated Witnesses Working? Evidence from the Criminal Justice Agencies” (Home Office Online Report 01/06, 2006)

Ministry of Justice, Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Using Special Measures, “Report” (2nd edn, 2007)

Ministry of Justice, Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Guidance on Using Special Measures, “Report” (3rd edn, 2011)

MOJ, Government Response to the Improving of the Criminal Trial Process for Young Witnesses Consultation “Report” (2009)

NCPCA, Investigation and Prosecution of Child Abuse (3rd edn Sage Publications Inc, USA 2004)

NSPCC, “ChildLine Casenotes: Calls to Childline about Sexual Abuse” (NSPCC 2007)

NSPCC, “ChildLine Casenotes: Children Talking to ChildLine about Sexual Abuse” (NSPCC 2009)

NSPCC, “ChildLine Casenotes: What Children and Young People tell ChildLine about Physical Abuse” (NSPCC 2006)

Office for Criminal Justice Reform, The Code of Practice for Victims of Crime (2005)

Penny Cooper, “Tell me What’s Happening 2: Registered Intermediary Survey 2010” (2011 City University London)

T. Pigot, Report of the Advisory Group on Video Evidence “Report” (1989, Home Office)

Victorian Law Reform Commission, Sexual Offences: Final Report “Report” (2004 Melbourne)

 

Websites

NSPCC, “Young Witness Pack” <http://www.nspcc.org.uk/Inform/Applications/PublicationsSearch/CH_ProcessMoreInfo.asp?id=115&PublicationTitle=YOUNG%20WITNESS%20PACK&download=True> accessed 15 May 2011



[1] NSPCC, “ChildLine Casenotes: What Children and Young People tell ChildLine about Physical Abuse” (NSPCC 2006) 2

[2] Ibid 3

[3] NSPCC, “ChildLine Casenotes: Children Talking to ChildLine about Sexual Abuse” (NSPCC 2009)

[4] Ministry of Justice, Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Using Special Measures, “Report”(2nd edn, 2007) [2.19]

[5] Laura Hoyano and Caroline Keenan, Child Abuse: Law and Policy across Boundaries (2nd edn OUP, New York 2010) 600

[6] Ibid

[7] Section 38(1) CYPA 1933, repealed by Section 34(1) CJA 1988

[8] R v Wallwork (1958) 42 Cr. App. R. 153 (CA) [154] and [160]-[161]

[9] R v Wright; R v. Ormerod (1990) 90 Cr. App. R. 91 (CA) [95]

[10] YJCEA 1999 sections 53(1) and (3).

[11] YJCEA 1999 section 54(3)

[12] Ministry of Justice, Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Guidance on Using Special Measures, “Report” (3rd edn 2011) [2.8]; Ministry of Justice, above (n 4) [2.21]

[13] Ministry of Justice, 2007  above (n 4) [2.24]

[14] Ibid [2.143]

[15] Laura Hoyano and Caroline Keenan, above (n 5) 605

[16] This is a difficult task to handle as this may lead to the deterring of full disclosure of events.

[17] Nicholas Bala, Kang Lee , R.C.L Lindsay and Victoria Talwar, “The Competency of Children to Testify: Psychological Research Informing Canadian Law Reform” (2010) 18 Intl J Child Rts 53, 74

[18] Ibid 68

[19] R v Powell [2006] EWCA Crim 3; [2006] 1 Cr. App. R. 31 [476] - [477]

[20] R v Hayes [1977] 1 WLR 234 [236]

[21] Ibid

[22] Jamie Doward, “NSPCC Boss Says More Children Should be Trusted as Abuse Witnesses” Guardian (London 3 May 2009) <http://www.guardian.co.uk/society/2009/may/03/children-abuse-witnesses-nspcc>  accessed 14 June 2011; Mark Hughes, “Call for Reform over Child Witnesses in Court” The Independent (London 22 May 2009) <http://www.independent.co.uk/news/uk/crime/call-for-reform-over-child-witnesses-in-court-1689223.html>  accessed 14 February 2011; Andrew Anthony, “Baby P Stepfather Rape Case Raises Questions over Impact on Child Witnesses” Guardian (London 3 May 2009) <http://www.guardian.co.uk/society/2009/may/03/child-witnesses-baby-p-stepfather> accessed 14 June 2011; BBC News “Baby P Man Guilty of Raping Girl” (London 1 May 2009) <http://news.bbc.co.uk/go/pr/fr/-/1/hi/england/london/8029499.stm> accessed 14 June 2011; BBC News “Rape by Baby P Man Sparks Inquiry” (London 2 May 2009) <http://news.bbc.co.uk/go/pr/fr/-/1/hi/england/london/8030299.stm> accessed 14 June 2011  

[23] R v. B [2010] EWCA Crim 4 (CA) [2]

[24] R v. Renshaw [1989] Crim. L.R. 811; Martin Childs, “James Pickles: Judge who Caused Controversy both in and out of the Courtroom”, The Independent (London 31 December 2010) <http://www.independent.co.uk/news/obituaries/james-pickles-judge-who-caused-controversy-in-and-out-of-the-courtroom.2172623.html> accessed 15 March 2011

[25] R v. B, above (n 23)

[26] Jennifer Temkin, “Disability, Child Abuse and Criminal Justice” (1994) 57 Mod L Rev 402, 406

[27] Ministry of Justice, Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Guidance on Using Special Measures, “Report” (3rd edn, 2011) [2.18]-[2.19]

[28] Criminal Justice Act (CJA) 1988, s.32A introduced by CJA 1991 and today found in Youth Justice and Criminal Evidence Act (YJCEA) 1999, Part II.

[29]Jane Fortin, Children’s Rights and the Developing Law (3rd edn 2009, CUP New York) 647

[30] Helen Westcott “Child Witness Testimony: What do we Know and where are we Going” (2006) 18 Child and Family Law Quarterly 175, 177-9

[31]Ministry of Justice, above (n 27)Part 3.

[32] Helen Westcott, above (n 30) 177-8

[33] Jane Fortin, above (n 29) 650

[34] Gwynn Davies, Laura Hoyano, Caroline Keenan, Lee Maitland and Rod Morgan, An Assessment of the Admissibility and Sufficiency of Evidence in Child Abuse Prosecutions (Crown Copyright 1999) “Report for the Home Office Research Development and Statistics Directorate”, ix

[35]Helen Westcott and Sally Kynan, “Interviewer Practice in Investigative Interviews for suspected Child Sexual Abuse” (2006) 12 Psychology, Crime and Law 367, 378-380.

[36] Helen Westcott, above (n 30) 181

[37] Association of Chief Police Officers (ACPO) National Investigative Interviewing Strategic Steering Group, Advice on the Structure of Visually Recorded Witness Interviews “Advice” (August 2010)

[38] Ministry of Justice, above (n 27).  It also takes into account the changes to the special measures provisions as a result of the Coroners and Justice Act 2009 to be discussed later. 

[39] Ibid [2.1]

[40] Ibid [2.25]

[41] Ibid [2.27]

[42] Ibid Part 3

[43] R (on the application of D) v. Camberwell Green Youth Court [2005] 1 W.L.R 393 [404]

[44] Jane Fortin, above (n 29) 650

[45] Mandy Burton, Roger Evans and Andrew Sanders, “Are Special Measures for Vulnerable and Intimidated Witnesses Working? Evidence from the Criminal Justice Agencies” (Home Office Online Report 01/06, 2006) 54

[46] Re B (allegations of sexual abuse: child’s evidence) [2006] EWCA Civ 773, [33]-[42]

[47] Helen Westcott and Sally Kynan, above (n 35) 367-8

[48] Ibid

[49] Ministry of Justice, above (n 27) [3.26]

[50] Helen Westcott and Sally Kynan, above (n 35) 377

[51] Matthew Hall, “Children Giving Evidence through Special Measures in the Criminal Courts: Progress and Problems” (2009) 21 CFLQ 65, at 78; Mandy Burton et al, above (n 45) 42, Joyce Plotnikoff and Richard Woolfson, “In their Own Words: The Experiences of 50 Young Witnesses in Criminal Proceedings” “Report” (2004, NSPCC) 4

[52] Ministry of Justice, above (n 27) [2.29]-[2.39]

[53] Helen Westcott and Sally Kynan, above (n 35) 379

[54] Ministry of Justice, “Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Using Special Measures” “Report” (2nd edn, 2007) [5.31]

[55] Mandy Burton et al, above (n 45) 32-34

[56] Ibid at 40; Mandy Burton, Roger Evans and Andrew Saunders, “Protecting Children in Criminal Proceedings: Parity for Child Witnesses and Child Defendants” (2006) 18 CFLQ 397, 400

[57] Mandy Burton et al, above (n 45) 46

[58] Jane Fortin, above (n 29) 653

[59] Ibid

[60] John Hutton, Ross Cranston and Charles Clarke, Provision Therapy for Child Witnesses Prior to a Criminal Trial: Practice Guidance (CPS, London 2001) [6.7] <http://www.cps.gov.uk/publications/prosecution/therapychild.html> accessed 29 November 2010

[61] Ministry of Justice, above (n 27) [3.134]; Ibid [6.2]-[6.3]

[62] Ministry of Justice, Government Response to Improving the Criminal Trial Process for Young Witnesses Consultation (Crown Copyright, UK 2009) 43

[63]Ministry of Justice, above (n 27) [3.134]-[3.135]; John Hutton et al, above (n 60) [5.25], [6.3], [6.7] and [6.8]

[64] CPS, The Code for Crown Prosecutors (Blackburns of Bolton, UK 2010) [3.3] and Chapter 4

[65] Caroline Keenan and Lee Maitland, “There ought to be a Law Against it: Police Evaluation of the Efficacy of Prosecution in a Case of Child Abuse” (1999) 11 CFLQ 397, 398

[66] Jane Fortin, above (n 29) 654

[67] Tina Goodman-Brown, Robin Edelstein, Gail Goodman, David Jones and David Gordon, “Why Children Tell: A Model of Children’s Disclosure of Sexual Abuse” (2003) 27 Child Abuse and Neglect 525, 533-5

[68] Ibid

[69] CPS, above (n 64) [4.5]

[70] Mandy Burton et al, above (n 45)  44-46

[71] Ibid

[72] Ministry of Justice, above (n 27) [2.187]-[2.205] and Appendix E

[73] CPS, above (n 64) [4.16]-[4.17] especially [4.17(g)]

[74] HM Government, “Cross Government Action Plan on Sexual Violence and Abuse” (April 2007) [7.9]

[75] NSPCC, “ChildLine Casenotes: Calls to ChildLine about Sexual Abuse” (2007) 11

[77] Ministry of Justice, above (n 54) chapter 5

[78] Office for Criminal Justice Reform, The Code of Practice for Victims of Crime (2005), 10-11

[79] CPS, “CPS Policy on Prosecuting Criminal Cases Involving Children and Young People as Victims and Witnesses” (CPS Policy Directorate, June 2006) 11-12

[80] Joyce Plotnikoff and Richard Woolfson, Evaluation of Young Witness Support: Examining the Impact on Witnesses and the Criminal Justice System, “Report” (Lexicon Limited, UK 2007a) 12-15, 19

[81] Ibid 12-13

[82] Ibid 72

[83] Jane Fortin, Children’s Rights and the Developing Law (3rd edn 2009, CUP New York) 660

[84] Thomas Pigot, Report of the Advisory Group on Video Evidence, “Report” (1989, Home Office) [2.10] and [2.12]

[85] Ibid [2.25] [2.26]

[86] Jane Fortin, above (n 83) 660

[87] YJCEA 1999 Part 2

[88] Matthew Hall, “Children Giving Evidence through Special Measures in the Criminal Courts: Progress and Problems” (2009) 21 CFLQ 65, 79

[89] Becky Hamlyn, Andrew Phelps, Jenny Turtle and Ghazala Sattar, Are Special Measures Working? Evidence from Surveys of Vulnerable and Intimidated Witnesses “Research” (Home Office Research Study 283, Development and Statistics Directorate, June 2004)  43; Joyce Plotnikoff and Richard Woolfson, “In their Own Words: The Experiences of 50 Young Witnesses in Criminal Proceedings” “Report” (2004, NSPCC) 4; Joyce Plotnikoff and Richard Woolfson, above (n 80) 47

[90] Louise Ellison, The Adversarial Process and the Vulnerable Witness (OUP, London 2001) 12, 24; Kathleen Murray, Live Television Link: An Evaluation of its use by Child Witnesses -The Scottish office of Central Research Unit (Stationary Office Books, Edinburgh 1995)

[91] Elizabeth Loftus, Eyewitness Testimony (Harvard University Press, USA 1996) 66

[92] Ray Bull, “The Investigative Interviewing of Children and other Vulnerable Witnesses: Psychological Research and Working/Professional Practice” (2010) 15 Legal and Criminological Psychology 5, 6

[93] Laura Hoyano and Caroline Keenan, Child Abuse: Law and Policy across Boundaries (2nd edn OUP, New York 2010) 639

[94] Ibid 639

[95] Ibid 639

[96] Ibid 640

[97] R v. Stevenson 118 A Crim R 20 [2000] WASCA 301 (Western Australia SCA) [16], [36], [2], [49]

[98] Laura Hoyano and Caroline Keenan, above (n 93) 641

[99] Ibid

[100] Gwynn Davies, Laura Hoyano, Caroline Keenan, Lee Maitland and Rod Morgan, An Assessment of the Admissibility and Sufficiency of Evidence in Child Abuse Prosecutions (Crown Copyright 1999) “Report for the Home Office Research Development and Statistics Directorate”, 79

[101] NCPCA, Investigation and Prosecution of Child Abuse (3rd edn Sage Publications Inc, USA 2004) at 450

[102] Laura Hoyano and Caroline Keenan, above (n 93) 635

[103] Ibid 642

[104] Ibid

[105] Evidence Act 1906 section 106I (WA), as amended by the Act Amendment (Evidence of Children and Others) Act 1992 (WA) and slightly revised in 2000 and 2002 by the Acts Amendment (Evidence) Act 2000 (WA) and Acts Amendment (Evidence) Act 2002 (WA)

[106] Davies et al, above (n 100) 271

[107] MOJ, above (n 62) [1.4]

[108] Australian Law Reform Commission, Seen and Heard: Priority for Children in the Legal Process “ALRC Report 84” (1997 Sydney) at [14.46]; Victorian Law Reform Commission, Sexual Offences: Final Report “Report” (2004 Melbourne) [5.67]

[109] Hans Otto Theodoor Finkensieper v. The Netherlands  (App no 19525/92) (1995) (EComHR) [57], [72];

[110] MOJ, above (n 62) [1.19], especially page 12

[111] Ibid

[112] Jamie Doward, “NSPCC Boss Says More Children Should be Trusted as Abuse Witnesses” Guardian (London 3 May 2009) <http://www.guardian.co.uk/society/2009/may/03/children-abuse-witnesses-nspcc>  accessed 14 June 2011

[113] Andrew Anthony, “Baby P Stepfather Rape Case Raises Questions over Impact on Child Witnesses” Guardian (London 3 May 2009) <http://www.guardian.co.uk/society/2009/may/03/child-witnesses-baby-p-stepfather> accessed 14 June 2011

[114] MOJ, above (n 62) [1.6]

[115] Re W (Children) [2009] EWCA Civ 644 [400]

[116] Laura Hoyano and Caroline Keenan, above (n 93) 940

[117] YJCEA 1999 ss 21(1)(b), 21(3) as amended by s.100 of the Coroners and Justice Act 2009

[118] YJCEA 1999 s 35(3)(a)-(d)

[119] Laura Hoyano and Caroline Keenan, above (n 93) 671

[120] Ibid

[121] Ibid 946

[122] Evidence Act 1906 (WA) s.106A

[123] Evidence (Protection of Children) Amendment Act 2003 (Queensland) s.21AI (2)

[124] Laura Hoyano and Caroline Keenan, above (n 93) 672

[125] YJCEA s 28(1)(a)

[126] Joyce Plotnikoff and Richard Woolfson, “In their Own Words: The Experiences of 50 Young Witnesses in Criminal Proceedings” “Report” (2004, NSPCC) 16

[127] Mandy Burton, Roger Evans and Andrew Sanders, “Are Special Measures for Vulnerable and Intimidated Witnesses Working? Evidence from the Criminal Justice Agencies” (Home Office Online Report 01/06, 2006) 40, 53

[128] Laura Hoyano and Caroline Keenan, above (n 93) 659

[129] Evidence Act 1906 (WA) s.106RA

[130] Laura Hoyano and Caroline Keenan, above (n 93) 645

[131] YJCEA 1999 s 21(6)

[132] According to the Home Secretary in the second reading of the YJCE 1999 Bill videotaped pre-trial cross-examination would be used “sparingly and in special situations”; Hansard HC vol 329 col 390 (15 April 1999)

[133] Laura Hoyano and Caroline Keenan, above (n 93) 661

[134] Joyce Plotnikoff and Richard Woolfson, above (n 126) 70

[135] Ibid 2, 11, 14

[136] Laura Hoyano and Caroline Keenan, above (n 93) 662

[137] Debbie Cooper, “Pigot Unfulfilled: Video-recorded Cross-examination under Section 28 of the YJCEA 1999” [2005] Crim. L.R. 456, 464 

[138] Joyce Plotnikoff and Richard Woolfson, “Measuring Up? Evaluating Implementation of Government Commitments to Young Witnesses in Criminal Proceedings” “Report” (NSPCC 2009) 6

[139] Ibid

[140] Ibid

[141] Robert McPeake (ed), Advocacy (15th edn OUP, USA 2010) [19.6.2]; Louise Ellison, “The Mosaic Art?: Cross-examination and the Vulnerable Witness” (2001) 21 Legal Studies 353, 358

[142] R v. B [2010] EWCA Crim 4 (CA) [20] 

[143] Emily Driver and Audrey Droisen (eds), Child Sexual Abuse: Feminist Perspectives (MacMillan Press, London 1989) 145

[144] Joyce Plotnikoff and Richard Woolfson, “ Cross-examining Children – Testing not Trickery” [2010] Arch. Rev. 7, 7

[145] YJCEA 1999 s.41

[146] Emily Driver and Audrey Droisen, above (n 143), 145

[147] Mary Childs and Louise Ellison (eds), Feminist Perspectives on Evidence (Cavendish Publishing, London 2000) 44

[148] Elizabeth Thornburg, “Metaphors Matter: How Images of Battle, Sports and Sex Shape the Adversary System” (1995) 10 Wis. Women’s L.J. 225, 231-237

[149] Robert McPeake (ed), above (n 141) [19.6.2]

[150] General Council of the Bar of England and Wales, Code of Conduct of the Bar of England and Wales and Written Standards for the Conduct of Professional Work (8th edn, London 2004) Part VII [708(g)]

[151] Ibid Part VII [708(j)]

[152] Sue Lees, Carnal Knowledge – Rape on Trial (Penguin, London 1996) 249

[153] Joyce Plotnikoff and Richard Woolfson, above (n 138) 3, 6

[154] General Council of the Bar, above (n 150) Part III [303(a)]

[155] Louise Ellison, The Adversarial Process and the Vulnerable Witness (OUP, New York 2001) 106

[156] Wong Kam-Ming v. R [1980] A.C. 247, 260

[157] R v. Gunning [1980] Crim. L.R. 592 (CA)

[158] Joyce Plotnikoff and Richard Woolfson, above (n 144) 8

[159] Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Harvard University Press, USA 1982) 8

[160] Carrie Menkel-Meadow, “Portia in a Different Voice: Speculations on a Woman’s Lawyering Process” (1985) 1 Berkeley Women’s L.J. 39, 53

[161] Ibid 54

[162] Joyce Plotnikoff and Richard Woolfson, above (n 144) 7

[163] Penny Cooper, “Tell me What’s Happening 2: Registered Intermediary Survey 2010” (2011 City University London) 8

[164] R v. B [2010] EWCA Crim 4 (CA) [42]

[165] Joyce Plotnikoff and Richard Woolfson, above (n 144) 9

[166] Committee on the Rights of the Child, “Consideration of Reports Submitted by States Parties under Article 44 of the Convention.  Concluding observations: United Kingdom of Great Britain and Northern Ireland” 9 October 2002 CRC/C/15/Add.188 [40(e)] and Committee on the Rights of the Child, “Consideration of Reports Submitted by States Parties under Article 44 of the Convention.  Concluding observations: United Kingdom of Great Britain and Northern Ireland” 20 October 2008 CRC/C/GBR/CO/4 [51(c)]

[167] Council Framework Decision (EC) 2001/220/JHA on the standing of victims in criminal proceedings [2001]

[168] Case C-105/03 Criminal Proceedings against Maria Pupino [2005], [62]