Study criticises lack of support to children giving evidence, trial management and controls on unfair questioning
Paralysed with fear and embarrassment, clutching two teddy bears and speaking in a halting, tiny voice, the four-year-old child was the youngest to be cross-questioned in court back in May 2009.
The girl's evidence, given over live video link, led to one of the men responsible for the death of Baby Peter being found guilty of her rape.
But the 40-minute session, described as "harrowing" by those in the courtroom at the time, led to demands for a radical overhaul of the court system.
Children's charities said they would press the government to change guidelines on child witnesses. Even the police expressed concern about whether the style of cross-examination was appropriate for such a young child.
But not only did nothing change, according to authoritative research, the number of children being called to give evidence in criminal courts is soaring. Up by 60% in three years, the research – to be published in June and seen exclusively by the Guardian – reveals there were 48,000 children called as witnesses between 2008-09, compared with 30,000 in 2006-07.
The study, funded by the NSPCC and the Nuffield Foundation, combs through the promises made by the previous government in response to the charities' influential Measuring Up? report of 2009. The study, welcomed by the government at the time, found that the "reality faced by young witnesses in court fell short of the standards set out in government policies". So conclusive were its findings that it led to a Ministry of Justice action plan ordering the introduction of its 42 recommendations.
That progress, however, has "been qualified or halted", a new investigation has found. While "some significant changes have been made to improve the experience of young witnesses ... there remain areas in which the state is failing in its commitment to enable young witnesses to give their best evidence," says Joyce Plotnikoff, co-author of both reports. The abandonment of the plan is the result of government change and budget cuts, she says, adding: "The coalition government's position in respect of witness policy and its response to some Measuring Up? proposals is not yet known."
According to Martha Cover, head of Coram legal chambers and co-chair of the Association of Lawyers for Children, the increase in numbers of child witnesses is due to a "shift in thinking" by judiciary.
"Judges are becoming less paternalistic in their views on how children's rights ought to be regarded," she says. "Instead of assuming it's a bad thing for a child to give evidence, they are increasingly willing to consider that a child has a right to be heard if they want to speak, and that it can be very helpful to the court if they do."
But the new report has found children face significant problems when going to court. The key problem, says Plotnikoff, is the lack of consistent support, effective pre-trial and trial management, and the control of unfair questioning by the defence, such as "tag" questions: "He didn't touch you, did he?"
Plotnikoff says that "unless our criminal justice process responds appropriately to the needs of young witnesses, this vulnerable and much victimised group will continue to be denied full access to justice".
But while she believes that enabling young witnesses to give their best evidence is essential to ensure fair trial outcomes, others have responded more radically to the increase in child witnesses.
Francis Wilkinson, a campaigning lawyer at the family bar, points to growing medical evidence about the stress suffered by child witnesses. Despite measures such as screens in open court, live and remote television links, Wilkinson believes trauma is so significant that to call a child to court constitutes a breach of their rights under European law. "The courts are failing in their duty to weigh up the defendant's article 6 right to a fair trial against the child's 'right to private and family life' under article 8 of the European convention on human rights," he says.
The Ministry of Justice has rejected Wilkinson's claims. "We do not believe children giving direct evidence is a breach of Article 8 of the European convention of human rights," said a spokesperson.
"Children are only required to give evidence when absolutely necessary in the interests of justice. In these cases we strive to ensure that everything is done to support child witnesses, courts can use special measures to mitigate the intimidating nature of the criminal process. Child witnesses can already give evidence from a separate room by video-link and they can also be supported by an intermediary to help them give their best evidence in court."
Wilkinson is preparing to take a case to the court of appeal where, he believes, new case law will be created that forces courts to fulfil their obligation to balance article 6 against article 8 every time the question of bringing a child to court is raised.
He is sure there is little real risk of a guilty party walking free from court as a result of his move. If courts make full use of pre-recording evidence and medical evidence, and make more use of hearsay allegations made by the child, there should be nothing left for a child to add in court.
He is also demanding that section 28 of the Youth Justice and Criminal Evidence Act 1999, which allows for pre-trial cross-examination, is made obligatory. In her progress report, Plotnikoff found that the right for pre-trial cross-examination is not used anywhere in the country. "It has simply not been implemented," she says.
Sarah Allum, Children's Services Manager for the NSPCC Devon & Cornwall Young Witness Service, agrees. "We have been lobbying for decades for the introduction of pre-recorded cross-examination for children. There is no need for children to go through the traumatic experience of court."
But others, including Anthony Douglas, chief executive of the Children and Family Court Advisory and Support Service (Cafcass), say the live testimony of children can be so crucial that putting the child's welfare second to the interest of justice can be "a price worth paying".
Arwel Jones, head of the Crown Prosecution Service's law and procedure unit agrees. "Although there may be some cases where it is possible to present the case without calling a child witness, it would depend very much on the circumstances of the individual case and the presence of any supporting evidence," he says.
"But there will," he adds, "always be cases where for the defendant to have a fair trial, the defence will need to be given the opportunity to ask questions of a child witnesses. Without that, it may well be difficult for a defendant to have a fair trial. In such circumstances, the CPS does its utmost, including the making of applications for special measures, to ensure that those witnesses can give their best evidence in criminal proceedings with the minimum of distress."
There have been improvements. National standards have been revised to make it easier for young witnesses to give evidence. All those who come into contact with young witnesses, from the police to the CPS and witness support services were recently ordered to review and update their advice about their treatment.
When the Coroners and Justice Act 2009 is implemented later this year, special measures such as screens and video links will be available to all under-18s. But, says Plotnikoff, services are still falling short and giving evidence remains "horrific" for too many witnesses.
"One of the biggest remaining challenges is how to ensure developmentally appropriate questioning of young witnesses at court," says Plotnikoff. "Current cross-examination methods often contravene principles for obtaining complete and accurate reports from children and may actually exploit their developmental limitations."
Judges frequently ignore national guidance to agree ground rules in advance on the way children are to be questioned. The Criminal Bar Association will shortly announce it is to increase training of its advocates in good practice when questioning children.
Another key problem identified in the report are delays in cases. The average time from reporting an offence involving a child to a crown court trial is 13 months.
The problem, says Plotnikoff, "is chronic". Cases involving young witnesses are taking longer to reach trial than the norm, the report found, despite successive influential reports calling for such cases to be prioritised - including the 1989 Pigot Committee, which recommended that courts should be able to take children's evidence at a preliminary hearing.
Plotnikoff says: "A child who is ready to give good, strong, fresh evidence at 10am one day will often be completely unable to give testimony at all if they have had to wait to be called until 3pm, two days later."
Furthermore, the use of remote links, allowing children to give evidence from other courts or non-court locations, is rare and is only routine in one part of the country. Only 53% of courts nationally have soundproofing to prevent those outside hearing witness testimony.
An added concern is the cuts to victim support schemes. Seven programmes received funding to launch young witness services in 2010. Some have already been discontinued. The remaining schemes do not offer home visits, a key ingredient, say the NSPCC and Victim Support, in preparation for court. Nor can they offer continuity of support before and at trial, an important contribution to young witnesses.
"Unless our criminal justice process responds appropriately to the needs of young witnesses, this vulnerable and much victimised group will continue to be denied full access to justice," says Plotnikoff. "Enabling the evidence of young witnesses through support, effective pre-trial and trial management and the control of unfair questioning are vital aspects of that response."