GIVING evidence in court is an ordeal for anyone, more so for a child. And, as with any ordeal, the first question is always: “How soon will it be over?”
A recent study, published by the NSPCC and Victim Support, provides an excellent insight into how court procedures are perceived by children who experience them. Fifty young witnesses in criminal proceedings were interviewed. The report, In Their Own Words, says that it is a long-standing government policy to give priority to child abuse or child witness cases, yet 14 of the witnesses waited a year or more before their case came to trial. The average waiting time for a Crown Court trial was 11½ months.
The worrying conclusion is that the average waiting time in these “expedited” cases is often substantially longer than the national average. Equally unsatisfactory is the finding that 28 witnesses did not give evidence on the first date scheduled for trial, and cases involving 12 witnesses were rescheduled on two or three occasions.
The report makes fascinating, and often chastening, reading for all of us who deal with child witnesses. There are many special measures available to children under the age of 17, such as the opportunity to give evidence in private, from behind a screen, or via a TV link. But it is clear to me that many of their concerns could be dealt with by the application of basic measures or common sense.
One eight-year-old boy, Jim, said: “I had to wait a very long time before I went to court. I did worry. I had a bit of a problem sleeping before I went.” He waited 18 months to give evidence.
Advertisement
Fiona, aged 10, said: “The trial date changed and the trial didn’t go ahead on the first date. This made me feel disappointed. I got all ready to go on this date and then it didn’t happen. When the case was coming up after it got cancelled I was told that it was going to go ahead on Monday, Tuesday or Wednesday. I actually went to court on Thursday.”
Sometimes, delay at the outset of the trial is inevitable, but all the professionals must bear in mind how bad this is for the witness. Reducing such delays does not require any special measures.
Once the trial starts everything possible should be done to put child witnesses at ease. The study found that some of the witnesses were confused about who was who at court. Also, there was considerable variation as to whether the judge or magistrate, the prosecuting lawyer and the defence lawyer met the witness beforehand.
There can be no excuse for failing to tell a child clearly who is who. The response of those who had met the judges and lawyers was far more positive. My own strong preference is always to meet the young witness. Seeing the judge and lawyers over a TV link is not good enough: the witness needs to know that he or she is being questioned by a real person. Also, questions about whether wigs and gowns should be worn are much better asked face to face. In my experience the witness, having seen the judge and lawyers with wigs removed, always asks for them to be put back on.
Many of the children’s comments about the proceedings were criticisms of the questions asked. Twenty-five said that they did not understand some words or questions or found some questions confusing. Kelly, 16, said: “I had to figure out what they said. Plainer, simpler English would be better. When I asked them to ‘Say it simpler’ they just said it slower.”
Advertisement
This is a sensitive area, as a fair trial must allow the evidence to be tested properly through cross-examination. However, there is no excuse for bad cross-examination, which includes using inappropriate questions and making comments. No special measure is required to correct these faults: the trial judge should intervene and stop it. Often, this does happen. Zeb, 10, gave a graphic description of the judge’s intervention: “The defence lawyer shouted at me. He wasn’t polite. Even the judge had to tell him off — she was wicked!”
After their ordeal, 34 of the witnesses recalled that someone had said “thank you” to them. This means that in up to 16 cases, nobody bothered to do so. Sam, 11, said: “Nobody said, ‘Thank you’. They just said, ‘You can go now’.”
No special measure is needed to correct this.
The study reports that at the end of it all six witnesses were positive about the experience and thought that they had been treated fairly. Twenty-seven described a mixed experience, in which they acknowledged some positive elements as well as stressful ones. Sixteen were extremely negative and could not identify anything positive about the experience.
At the end of the interview, the children were asked whether there was anything they wanted to say to people at court. One child’s comment sums up their experiences: “Listen more and talk to witnesses to make them feel comfortable. Lawyers should be more straightforward and less aggressive.”
Advertisement
The author, a QC, is a criminal practitioner and a recorder
In Their Own Words, by Joyce Plotnikoff and Richard Woolfson (nspcc.org.uk)
The NSPCC is running a £3.2 million Caring for Children in Court Appeal. For more information: Alice Henson, 0207-825 2852