Children and Cross-Examination

Time to Change the Rules?

J R Spencer, Michael Lamb, J R Spencer, Michael Lamb

• Publisher: Hart Publishing
• Year: 2012
• ISBN:
  9781847319562
• Edition: 1
• Topic: Droit
• Subtopic: Procédure pénale

In 2009, Stephen Barker was convicted of rape on the evidence of a little girl who was four-and-a-half years old at the trial, and about three-and-a-half when first interviewed by the police. The high point of the proceedings was the child's appearance as a live witness in order for Barker's counsel to attempt a cross-examination. This case focused attention on the need, imposed by current English law, for even tiny children to come to court for a live cross-examination. In 1989, the Pigot Committee proposed a scheme under which the whole of a young child's evidence, including cross-examination, would be obtained out of court and in advance of trial. In 1999 a provision designed to give effect to this was included in the Youth Justice and Criminal Evidence Act, but it has not yet been brought into force. The full Pigot proposal was implemented, however, in Western Australia, and similar schemes operate in a number of European jurisdictions. This book of essays examines a number of these schemes, and argues the case for further reforms in the UK.

1

Introduction

JR SPENCER

Until a quarter of a century ago, a combination of legal rules made it very difficult for the evidence of a young child to be heard in a criminal court in England and Wales—and where it was heard, to be acted on. Specifically, the competency requirement made it impossible for young children to give oral testimony, and the hearsay rule usually made it impossible for their evidence to be delivered to the court by any other means—for example, by an adult’s account of what the child had said to them, or even by an audio or videotape of the child actually saying it. Where children were old and mature enough to satisfy the competency requirement, and could come to court to testify as live witnesses, a collection of sub-rules which can be collectively called the adversarial package then made it difficult for them to communicate their evidence when they got there. The contents of this ‘adversarial package’ included the rule that required witnesses to tell the whole of their tale in court, right from the beginning, without incorporating or referring back to statements they had previously made; the rule that required prosecution witnesses to give their evidence in the physical presence of the defendant; and the rule that witnesses are ‘examined adversarially’—meaning that, having first been questioned by someone who wants them to say one thing, they are then cross-examined by another person who wants to make them say the opposite. Finally, in those cases where the child had managed to testify orally, and in the course of it say anything that was coherent, the corroboration requirement required the judge in jury trials to warn the jury, in effect, not to believe it (and in summary trials, required the magistrates, at least in theory, to issue a similar warning to themselves).

During the 1980s this state of affairs was increasingly criticised. Police officers, social workers, paediatricians, child psychiatrists, psychologists, judges, academic lawyers and even a number of practising lawyers raised their voices to say that rules needed to be changed. Prominent public figures pressing for reform included Professor Glanville Williams and Baroness Lucy Faithfull, both regrettably now dead, and Esther Rantzen, happily still very much alive. Organisations concerned with children’s welfare also took an active part—led, of course, by the National Society for the Prevention of Cruelty to Children (NSPCC). This combined pressure produced important legislative changes. Some initial ones were introduced by the Criminal Justice Act of 1988, and further more important ones by the Criminal Justice Act of 1991, a piece of legislation which implemented some (though unfortunately not all) of the recommendations of the Pigot Committee in 1989. Eight years later came the report called Speaking up for Justice,¹ which recommended further reforms to the law of evidence, this time for the benefit of vulnerable witnesses generally. This led to further important reforms in the Youth Justice and Criminal Evidence Act 1999.

As one who was involved in the movement for reform myself,² a backward glance over the developments of the last 25 years fills me with mixed feelings. One part of me is astonished at how much has been achieved, but another part is disappointed at how regularly the complaints that were made 25 years ago about the way child witnesses are treated by the criminal courts are still heard today. Much of the criticism centres around the fact that child witnesses, like adult witnesses, are still required to come to court to undergo a live cross-examination, and about the way they are treated when they get there. This book of essays is the product of a conference, held in Cambridge in April 2011, which was intended to confront this issue: in particular, by hearing presentations from speakers in other jurisdictions in which the evidence of child witnesses is tested without the live in-court cross-examination which English law still routinely requires. The papers they gave are the basis of chapters three to eight.

The rest of this introductory chapter sets the scene by reviewing those changes that have been made in England and Wales over the last 25 years in respect of the evidence of children, by explaining how it is that we still subject them to live cross-examination, and by explaining the practical consequences of this. In order to end this introductory chapter at a point which leads on to the issue of cross-examination, the topics are not discussed in the sequence listed in the first paragraph above, and are instead treated as follows: (i) corroboration; (ii) hearsay; (iii) competency; and (iv) the ‘adversarial package’.

Corroboration

In its unreformed state, English law sought to limit the impact of children’s evidence by a three-pronged approach. By statute, there was a total ban on convictions based on the evidence of a child who gave evidence unsworn. This was supplemented by a judicial duty to warn juries that it was ‘dangerous’ to convict on the uncorroborated evidence of a child, whether giving unsworn evidence or evidence on oath. And where (as often) the child was the complainant in a sex case, this duty was reinforced by a further judicial duty to warn juries that it was ‘dangerous’ to convict on the uncorroborated evidence of a sexual complainant. (As previously mentioned, at summary trials, where there are no juries, a magistrate or bench of magistrates were required to ‘warn themselves’—in other words, legally required to proceed with caution.)

The statutory ban on convictions based on the unsworn evidence of a child derived from section 38 of the Children and Young Persons Act 1933, the provision which made it possible for children insufficiently mature to understand the nature of an oath to give their evidence unsworn, a provision which reenacted an earlier and similar provision dating from the end of the nineteenth century.³ Having set out the terms on which children were permitted to give evidence unsworn, this went on to say:

Provided that where evidence admitted by virtue of this section is given on behalf of the prosecution the accused shall not be liable to be convicted of the offence unless that evidence is corroborated by some other material evidence in support thereof implicating him.

The teeth of the provision were sharpened by a judicial gloss to the effect that the corroboration had to consist of something other than further unsworn evidence from different children: so one unsworn child witness could not corroborate another.⁴ The effect of this, of course, was particularly bad for justice, because it meant that a person could indecently assault a series of young children, or a collection of them each in the presence of the others, and do so with impunity if they were all too young to take the oath.

The two supplementary ‘judicial duties to warn’ were created by the judges. At the beginning of the twentieth century the judges, worried about innocent men being falsely accused of sex offences, invented a rule requiring judges to warn juries of the danger of convicting on the uncorroborated word of a sexual complainant. The early cases involved complainants who were young,⁵ and in the course of the following decades those cases spawned two separate rules: (i) judges must warn juries of the danger of believing the evidence of children, whatever the nature of the case and (ii) judges must warn juries of the danger of believing sexual complainants, whether young or old.

Over the years these rules sprouted a luxurious growth of legal technicalities. This included detailed rules about what types of evidence were capable, in law, of amounting to ‘corroboration’, detailed requirements about the precise words a ‘corroboration warning’ must contain, and a particularly obtuse rule requiring judges to warn juries about the danger of acting on uncorroborated evidence not only in cases where the evidence of the complainant stood alone, but even where it was amply supported by corroboration. Needless to say, the resulting body of law was a fertile ground for defence lawyers seeking possible grounds of appeal in cases where, despite these impediments to conviction, a conviction had occurred.

In 1987, when a Criminal Justice Bill was before Parliament, a group of peers moved an amendment to alter the corroboration rule in cases involving children. The government responded by ordering a review of recent psychological research bearing on the reliability of children’s evidence,⁶ on the basis of which it introduced a clause which later became section 34 of the Criminal Justice Act 1988. This repealed the statutory provision forbidding courts to convict on the uncorroborated evidence of unsworn children, abolished the judge-made requirement for judicial warnings against believing children’s evidence, and, for good measure, also made it clear that the evidence of one child giving unworn evidence could corroborate that of another.

The effect of this provision was initially limited, because judges were still obliged to warn juries of the danger of believing sexual complainants—including, of course, those who happened to be children. Three years later, in 1991, the Law Commission recommended that the remaining corroboration requirements should be abolished. Pressure for further reform in this area grew when Lord Taylor, the Lord Chief Justice, publicly criticised this area of the law as ‘arcane, technical and difficult to convey’.⁷ And finally, after three more years had passed, Parliament abolished the duty to warn of the danger of believing complainants in sex cases by enacting section 32 of the Criminal Justice and Public Order Act 1994.

The impact of the abolition of the corroboration rules relating to children’s evidence has been significant. When taken together with the reform of the competency rules described in the next section, the abolition has made it possible for persons who abuse young children to be convicted in situations where previously they would undoubtedly have got away with their misdeeds. A conviction in a case like Barker⁸ for example—a case discussed in detail below—would have been out of the question.

(Interestingly, Scots law, unlike English law, has a general requirement of ‘corroborated proof’. Apart from a few minor exceptions established by statute, no accused person may be convicted of any offence on one single piece of evidence, however credible. There must always be two pieces of evidence that point towards his guilt. Needless to say, a side-effect of this rule is to add to the difficulties prosecuting people for sexual offences against children—and indeed sexual offences generally. Yet at the time when public pressure led to the abolition of the more limited corroboration rules in England and Wales there was little discontent about the broader rule in Scotland. The position has now changed, however, and its possible abolition is under public discussion.⁹)

The Hearsay Rule¹⁰

In essence, the hearsay rule provides that a disputed fact may not be established by calling X, who did not see or hear it, to tell that court that he or she heard Y, who did, describe it; either Y must be called as a live witness, or the fact must be established by other means; and if no other means are available, then in law the fact cannot be proved. So stated, the rule is obviously wide—but in fact it is even more restrictive than it first appears, because in principle it renders inadmissible much more than ‘hearsay’ in the colloquial sense, which is where X repeats what he claims to have heard, by word of mouth, from Y. Thus it also renders inadmissible attempts by Y to communicate directly with the court, if done by means other than using words uttered orally in the witness box. So, for example, the law regards as hearsay, and hence inadmissible, a letter that Y had written in which the matter is described, and even an audio- or videotape of Y actually describing it.

A particular application of the hearsay rule in its classic form is that, where a young child will not or cannot give oral evidence about what happened, the court is not permitted to hear what he or she said about the incident to anyone else—a parent, doctor, social worker or police officer, for example. This restrictive rule was sometimes defended as necessary to protect persons from accusations that are false; but paradoxically, in the leading case the accused, a white man who was prosecuted for assaulting a little girl of three, was prohibited from calling evidence that, just after the incident, the child had described her attacker as black.¹¹

Over the years the hearsay rule was increasingly criticised. In response to this, the government referred it in 1994 to the Law Commission, which in due course produced a discussion paper, and then in 1997 a Report¹² containing proposals for reform. The Law Commission’s proposals were accepted by the government and, six years later, they were enacted—with certain fairly minor changes—in Chapter 2 of Part 11 of the Criminal Justice Act 2003.

Under the reformed law, the hearsay rule is essentially retained for the purpose of criminal proceedings,¹³ but made subject to a statutory list of exceptions, which are more general and wider than the limited range of exceptions that were applicable before. One of these, set out in section 116 of the Act, potentially operates where the original maker of the statement is ‘unavailable’ for any of a list of specified reasons. These are death; where the person in question is ‘unfit to be a witness because of his bodily or mental condition’; where he is outside the UK and it is ‘not reasonably practicable to secure his attendance’; where he cannot be found, though efforts have been made to find him; and lastly, where he does not give evidence ‘through fear’. In the first four of these five cases the hearsay evidence is automatically admissible, unless it is prosecution evidence and the court rules that admitting it would render the proceedings ‘unfair’.¹⁴ In the last case—unavailability through fear—the hearsay evidence is admissible only where, having weighed up a list of factors,¹⁵ the court gives leave.

The list of specific exceptions set out in the Act was supplemented by a general ‘inclusionary discretion’ under which the court may admit a piece of hearsay evidence that falls outside the explicit exceptions where the court ‘is satisfied that it is in the interests of justice for it to be admissible’. This ‘safety-valve provision’, as it is sometimes called, is set out in section 114(1)(d) of the 2003 Act. In deciding to admit hearsay evidence under this provision, the court must ‘have regard to’ the list of nine factors set out in section 112(2) and, for good measure, ‘any others it considers relevant’.

Though worded in language that looks extremely cautious, this reform of the hearsay rule was potentially important for child abuse cases, especially those involving children who were very yo...