The Barnardo's lecture

Speech by the Attorney General: justice or ordeal: supporting and treating children fairly through the trial process

This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
The Rt Hon Dominic Grieve KC

“You need to thank your chief executive for my presence here tonight.

“It is one of those truisms that some of you here will recognise - beware of a woman on a mission. After a particularly congenial conversation with Anne-Marie I found that I had agreed to deliver this lecture - it was not something I had in my mind at the beginning of our conversation!

“In truth it is a delight to have been asked. Like many others I’ve always been deeply impressed by the achievements of Barnardo’s both in the past and more recently. I understand that Barnardo’s currently runs more than 400 projects for children across the UK, and every year helps more than 100,000, children, young people and their families.

“It is a remarkable story. Its origins of course were in Thomas Barnardo’s first ‘ragged school’ in the East End of London in 1867, and his first homes for boys and for girls for which was the motto ‘No Destitute Child Ever Refused Admission’. From then, through the charity’s network of residential care homes in the first half of the 20th century, to its more recent emphasis on working with and for communities, families, and children in their homes, Barnardo’s work has remained inspired by its concern for the welfare and development of children, particularly the most vulnerable and needy. I hope this lecture will illustrate many of the changes in the criminal justice system that have come about, have been encouraged by the work Barnardo’s has done.

“Thinking of Thomas Barnardo’s ragged schools brought to my mind another great Victorian who had a first-hand knowledge of a ragged school and a deep concern for the plight of vulnerable children. I know of nothing more telling than Charles Dickens’ portrayal of poor Nell in the Old Curiosity Shop. From that book I take these lines to sum up my feelings on the theme of tonight’s lecture. He wrote:

It always grieves me to contemplate the initiation of children into the ways of life when they are scarcely more than infants. It checks their confidence and simplicity - 2 of the best qualities that heaven gives them and demands that they share our sorrows before they are capable of entering into our enjoyment.

“We as outsiders feel uncomfortable about that; we don’t like it. We would prefer it to be otherwise. But the blunt facts are that all too often children are brought to court, or are involved in lengthy legal processes. They may be witnesses, they may be directly involved in a criminal prosecution or they may be the entirely innocent bystanders in a family dispute that affects them deeply.

“Whatever the reason, children in legal proceedings place a special duty of care on the courts to look after their needs as far as it can. Alongside this are also the needs of justice and the imperative that justice should be dispensed impartially without fear or favour. Unfortunately these two aims are not always easy to reconcile with one another.

“It is a dilemma facing all with the responsibility for ensuring the proper conduct of the criminal justice system. While it is my colleagues in the Ministry of Justice who are particularly concerned with ensuring that we have a legal system that operates smoothly and one that protects the safety of the public, it falls to me as Attorney General to consider whether the law itself is being appropriately applied.

“Within my area of responsibility is also that of superintending the Crown Prosecution Service and it is within that context that my remarks tonight are particularly framed. I want to explore with you 2 questions:

  • how can we enable children to take part in court proceedings in a way that fully recognises they are still children who will have particular needs?
  • does the criminal justice system offer enough protection so that children are not further damaged by their contact with it?

I would like to look at 2 areas in particular:

  • how the courts view children’s evidence, and
  • how children are supported to give that evidence

“I will then want to say something about children as defendants, and lastly look at some of the challenges still facing us today.

“Looking at children in the criminal justice system, the major change in recent decades in the way the criminal courts view children and their ability to give evidence and have their voices heard. In general, if the guilty are to be convicted, our system of criminal justice depends on witnesses coming forward and, if necessary, giving evidence in court.

“If those responsible for offences, including the most heinous ones, against children, are to be convicted, that is likely to require children to give evidence. Yet until quite recently it was impossible for a small child to give evidence, as it was considered that their evidence would be worthless.

“In 1958, when a girl of 5 years had been called as a witness, Lord Goddard, then Lord Chief Justice observed:

The court deprecates the calling of a child of this age as a witness… the jury could not attach any value to the evidence of a child of 5: it is ridiculous to suppose they could… In any circumstances, to call a little child of the age of 5 seems to us to be most undesirable, and I hope it will not occur again.

“That observation was referred to with approval in a case as recently as 1986. But just a few years later, in 1990, Lord Lane CJ drew attention to a changing attitude ‘to the acceptability of the evidence of young children and of increasing belief that the testimony of young children, when all precautions have been taken, may be just as reliable as that of their elders’.

“At the end of that decade came the Youth Justice and Criminal Evidence Act 1999. Under this, no one is incompetent to give evidence on the basis of age. An individual is regarded as not competent only if it appears to the court that he or she cannot understand the questions put to them as a witness or give answers which can be understood. As the present Lord Chief Justice has recently put it, “This is a judgement to be made, not a discretion to be exercised, in relation to each individual witness.”

“In January last year, the Court of Appeal in R v Barker confirmed that the age of a witness was not determinative of his or her ability to give truthful and accurate evidence. In that case, the child was 4 and a half years old, giving evidence about matters said to have occurred when she was not yet 3. The court found that:

She was indeed a compelling as well as competent witness. On all the evidence, this jury was entitled to conclude that the allegation was proved. Unless we simply resuscitate the tired and out-dated misconceptions about the evidence of children, there is no justifiable basis for interfering with the verdict.

“It must surely be welcome to all who are concerned about the protection of children that the law now holds children capable of giving evidence that can be used by the courts.

“Just recently we have seen the value of a child’s evidence. In the last few weeks: Judge Jonathan Rose at Bradford Crown Court praised a 4-year-old boy’s “honesty, bravery and fortitude” in giving evidence against a man who stamped on his stomach when he was aged 2, causing life-threatening injuries. The man was found guilty of causing grievous bodily harm with intent and jailed for 13 years.

“It is one thing to have your voice heard, we are all aware as adults that the prospect of going to a court where there will be a lot of questioning is often frightening which emphasises how traumatic and frightening it is likely to be for children. And witnesses should not be frightened.

“The need to support children to enable them to give their ‘best evidence’ in court is a very real one and it is an area where there has been much progress. The Pigot Report on Video evidence published in 1989, recommended among other things that provision be made for video-recorded evidence-in-chief and video-recorded cross-examination for child witnesses. The Criminal Justice Act 1991 permitted child witnesses who were already eligible to give their evidence via live closed-circuit television link to give their evidence in-chief on a pre-recorded video.

“Continuing concerns about the experiences in court of vulnerable witnesses led to the Speaking Up for Justice Report in June 1998. This made 78 recommendations intended to help vulnerable and intimidated witnesses to give evidence. Those requiring legislation were enacted in the Youth Justice and Criminal Evidence Act 1999. This made the important distinction that children under the age of 17 at the time of a court hearing are to be regarded as ‘vulnerable’ and therefore eligible for ‘special measures’.

“Under provisions of the Coroners and Justice Act 2009, which came into force earlier this year, automatic eligibility has been extended to all young witnesses under 18. Those special measures currently in force can include all or some of the following:

  • the use of screens - to ensure that the witness does not see the defendant when giving evidence
  • evidence by live link - allowing a witness to give evidence from outside the courtroom or from a remote location
  • the giving of evidence in private - allowing the courtroom to be cleared of people who do not need to be there while a witness gives evidence
  • removal of wigs and gowns worn by judges and lawyers
  • video recorded evidence in chief - allowing an interview with the witness, which has been video recorded before the trial, to be shown as the witness’s main evidence
  • examination through an intermediary - someone approved by the court to communicate to the witness the questions the court, defence and prosecution ask, and then communicate the answers the witness gives in reply
  • aids to communication - to assist a witness overcome physical difficulties with understanding or answering questions, something I might add that helps adults with special needs

“The MOJ don’t see this as a final position, it is committed to build on these measures. As well as extending automatic eligibility for special measures to all witnesses under 18, the provisions of the Coroners and Justice Act 2009 also give young witnesses more choice and greater flexibility about the way they give their evidence (subject to the agreement of the court).

“Young witnesses can if they wish, opt out of giving evidence by video recorded statements and live link and give evidence in court behind a screen. These amendments to the special measures provisions are as a direct response to a public consultation exercise run by the former Office for Criminal Justice Reform in 2007.

“These changes mean we can now expect judges and magistrates to use their powers to modify court practice and procedure to take into account and compensate for the situation of ‘vulnerable witnesses’, including children. The judiciary’s Equal Treatment Bench Book states: ‘Procedures peculiar to children need to be followed in order that the testimony of the child can be adduced as effectively and fairly as possible.’

“This might include ensuring there are frequent breaks; arranging the order in which evidence is heard so that witnesses are not kept waiting any longer than is necessary; or stopping questioning which appears to be unnecessary, improper or oppressive. Children and their families should also benefitted from the considerable strides the Criminal Justice System has taken to improve the support given to victims and witnesses generally, throughout the entire process from reporting a crime to the police to the conclusion of a court case.

“In 2002/03, many thousands of criminal cases were estimated to have failed due to the non-attendance of a victim or witness. The waste of court time cannot be excused especially as it inevitably means court delays. I know that Barnardo’s are particularly concerned about the damage to children caught in ‘limbo’ by protracted legal proceedings.

“The previous government’s response was to initiate the “No Witness No Justice” victim and witness care programme. Under this, over 150 joint Police/CPS Witness Care Units have now been established to cover the whole of England and Wales, and I’ve visited some of them. These are staffed by trained specialists from the police and the Crown Prosecution Service (CPS), and provide a single point of contact for victims and witnesses from point of charge until the conclusion of the case. They provide a tailor-made service, eg making practical arrangements such as a pre-trial familiarisation visit to the court, transport etc. Witness care officers also keep victims and witnesses informed of case progress, including the final outcome.

“I know this is an area where improvements can be made, but if we look at the number of ‘ineffective trials’ - that is trials which do not reach a conclusion - due to witness issues (such as non-attendance) has reduced by 60% in the Crown Court and 46% in the magistrates’ courts. Witness attendance continues to increase from a baseline of 77%, the current national average being 87%.

“All child victims or witnesses have access to support throughout the trial process from, for example, Victim Support, the Witness Service and the Young Witness Service. The CPS has a published ‘Policy on prosecuting criminal cases involving children and young people as victims and witnesses’, available on its website. The policy is written for the parents and carers of child victims and witnesses and for people whose job it is to support children. I know that representatives of Barnado’s were involved in the drafting of the policy, and it’s something I discuss with the DPP.

“A ‘Young Witness Pack’ has also been developed and funded by the NSPCC, Childline, the Home Office, the then Lord Chancellor’s Department, the CPS and the Department of Health, in 1998. It provides support for children who must give evidence in court. It is designed especially for 5-17 year old young witnesses, their parents, carers and young witness supporters.

“The pack was designed to familiarise young witnesses with the court process and their role within it and is designed to be used in whichever criminal court the witness is required to appear. The pack was revised in 2003, and this year has been further reviewed by the Ministry of Justice in light of changes in practice, procedure and legislation.

“We have seen the value of some these measures in the recent Operation Retriever case. In 2009, following ‘Operation Retriever’, a proactive Derbyshire Police investigation into child sexual exploitation in Derby, several defendants were charged with offences relating to twenty six victims. The charges were mainly serious sexual offences including numerous offences of rape. Strategies were put in place for support prior to, during and after the court process. Numerous agencies were involved to make this possible.

“Although there were 9 defendants, there were 3 main trials, with 5 defendants at each. The CPS deliberately organised so that no victim gave evidence more than once. All victims provided video recorded evidence in chief and over 60 applications for special measures were granted over the course of the 3 trials.

“Thanks to the evidence of young people, the police and Crown Prosecution Service (CPS) were able to secure convictions for very serious offences against these individuals. In these 3 trials, spread over 2010, the 2 ringleaders were convicted of multiple sexual offences, and received indeterminate sentences for public protection. Seven other defendants were convicted of offences arising out of this operation.

“The need to recognise the particular vulnerability of children is particularly pressing when it comes to children as defendants. The age of criminal responsibility was set at 10 by the Children and Young Persons Act 1963 and governments since that date have not changed it. I know that Barnardo’s recent ‘Kids Inside Campaign’ included a report recommending that the Age of Criminal Responsibility should be raised to 12 for all but the most serious crimes. While the government remains open to this debate, it is not currently considering changing the age of criminal responsibility. The view is that a child aged 10 is able to differentiate between bad behaviour and serious wrongdoing.

“My personal view is that prosecution of the very young should always be a last resort and used where other remedies have failed or are plainly inadequate to address the acts that have occurred. Setting the age of criminal responsibility at age 10 should also allow frontline services to intervene early and robustly, which not only can prevent further offending and help young people develop a sense of personal responsibility for their behaviour, but can also help through a difficult time.

“The majority of youth crime is in fact addressed using ‘out of court disposals’ (reprimands or final warnings) and comprehensive interventions, to prevent the re-offending. There are several innovative ideas on early intervention being developed in local authorities where a remedial approach to helping families with complex needs aims to avoid repeat bad behaviour or the start of a cycle of offending.

“As I know from my own days as a barrister, children who appear to be offenders are usually often victims themselves. A particular example arises from human trafficking. Following a public consultation on the prosecution of such cases, the CPS recently amended its policy on the prosecution of children who may be victims of trafficking and have committed criminal offences as a consequence of their having been trafficked.

“The changes included removing the need to prove the means of trafficking (i.e. the force, coercion, deception or abuse of power): for child victims, consent is irrelevant; therefore there is no requirement to show the means. The new policy identifies that children are particularly vulnerable to trafficking and exploitation and that child trafficking is first and foremost a child protection issue.

“But if children do break the law and a trial is needed we do then have to ensure that they get a fair trial not only in terms of process but in terms of respect for their vulnerability however serious the allegations may be against them.

“Specialist training has been provided for the judiciary sitting in youth courts. When young people up to the age of 18 have to be tried, in the main this will be in youth court, although I know there are exceptions.

“There both the judiciary and prosecutors will always have specialist training. The court is closed to the general public. The press are allowed access, but they are automatically prevented from reporting any detail which would tend to identify the defendant. Parties can apply to have these reporting restrictions lifted but this is relatively rare.

“Youth Offending Teams play a similar role to the probation service in the adult court. They are multi-agency teams that work with the young person to help divert them from offending and provide the court with information about the young person. It is also expected that the parent/carer of the young person will attend court with the young person to offer support although unfortunately we know that too often that is not the case. If the young person is under 16 the parent/carer must attend. If they do not the court can summons and ultimately issue a warrant to ensure they attend court with their child.

“The Coroners and Justice Act 2009 will, when fully implemented, add to the ‘special measures’ provisions of the Youth Justice and Criminal Evidence Act 1999 to enable the court to appoint an intermediary to assist certain vulnerable defendants with communication needs in giving oral evidence in court, where necessary to ensure that they receive a fair trial. I greatly welcomed this implementation. However, case law has confirmed that the court can already appoint an intermediary to support a vulnerable defendant in criminal proceedings in the interests of a fair trial.

“It is important that those working with young defendants, or victims or witnesses understand their speech, language and communication needs. The Youth Justice Board (YJB) has been working with the Communication Trust to raise awareness of such needs amongst youth justice professionals.

“Although the process of trial for children and young people is going to inevitably be traumatic I think we can see that we have come a long way from the justifiable criticisms that followed the trials of the 2 accused after the death of James Bulger. What is rather more difficult to legislate for however is changes in public and press attitude to children accused of grave offences.

“Looking ahead important challenges remain with regard to the involvement of children in the trial process in whatever capacity. This was recognised in the Action Plan on Tackling Child Sexual Exploitation published by this Coalition Government in November.

“This Action Plan owes a great debt to Barnardo’s report Puppet on a string, and I know Barnardo’s has welcomed the Plan. It is an important document which builds on the latest evidence available on sexual exploitation of children. The Plan embraces all Government departments who share responsibilities for child welfare. It sets out our statement of intent with a promise of a further report in Spring 2012 on the progress being made in putting the plan into effect.

“The Plan highlights the difficulties child victims or witnesses of sexual exploitation face in giving evidence, and the support they need to be given by all agencies involved, including the prosecution. It commits the police, the CPS, judges and magistrates to continue to work together to support young witnesses so that they are able to give their best evidence in court. It also indicates the importance of appropriate sentencing of convicted offenders.

“It mentions the Attorney General’s power to ask the Court of Appeal to review sentences in respect of certain offences, including rape and other sexual offences, including cases involving children, which I think are “unduly lenient” - that is, outside the range of sentences that a judge, taking account of all the relevant factors, could reasonably consider appropriate.

“If the Court of Appeal considers that the sentence is unduly lenient it can increase it. I do some of these cases personally which helps me keep in touch with the law in this area.

“The legal professions have also been giving a lot of thought to improving the trial process for children. Our system of justice is adversarial. The defendant’s exercise of the right to a fair trial depends on defence advocates being able to do their job properly. We cannot have such an adversarial system without allowing for the cross-examination of witnesses. This is the way that evidence is tested.

“But it is of course crucial that the cross-examination of children is carried out properly and sensitively. Child witnesses should be questioned in a manner appropriate to their age and level of understanding.

“Advocates are entitled to challenge the evidence given by witnesses but particular care should be taken with child witnesses to ensure that cross-examination is conducted in plain and simple language and is not aggressive, hectoring, overly robust and certainly not demeaning. To quote Lord Judge again:

Judges are increasingly alert to all the new nuances of over cross examination and unfair cross examination. By unfair I am not limiting myself to bullying cross examination, which is readily identified, but extending it to unfair questioning of a witness, who may indeed be the defendant, whose vulnerability may take many different forms, but who for what ever reason, say childhood, is at risk of having an injustice done because the discussion is not at his or her true level of communicative skill or physical endurance. For this purpose we must rid ourselves of any straight jacketed conceptions of the form cross-examination must invariably take. The testing of the evidence - which is legitimate, whether of the defendant or the prosecution witnesses - must be fair in that broadest possible sense.

“This should be ensured by the professional competence of all those involved in a trial. In this connection, I was interested to see that, earlier this year, the Advocacy Training Council (ATC) published a report ‘Raising the Bar; the handling of vulnerable witnesses, victims and defendants in court’. The ATC working party took evidence over a period of 20 months from a large number of experts, including a child/adolescent psychiatrist.

“The report makes a series of practical and far-reaching recommendations for the training of barristers in how to handle vulnerable witnesses, victims and defendants. It also includes a useful ‘toolkit’ to assist barristers in case preparation, in particular identifying common problems encountered when examining particular vulnerabilities, and recommending possible solutions.

“I believe that prosecutors in particular have a crucial role in protecting vulnerable children in the court system, supporting child victims for example when there are multiple perpetrators to a crime requiring substantial cross-examination.

“This is made clear by the Crown Prosecution Service’s Core Quality Standards. In these, the Director of Public Prosecutions sets out what constitutes a quality prosecution service, and defines for the public how the CPS works and what level of service they can expect. One of these standards indicates that prosecutors should ask the court to intervene to stop inappropriate questioning of prosecution witnesses.

“Clearly the judge has the most important role of all, in ensuring that children’s evidence is only tested in an appropriate way. Good trial management and strong judicial control of the trial proceedings should prevent unnecessary and protracted cross-examination of young child witnesses. This was well expressed in the government’s Action Plan on Tackling Child Sexual Exploitation. What it actually says is:

Concern is sometimes expressed about group or gang-related cases where there may be multiple defendants and the young victim may face separate cross-examination by barristers representing each of them. Trial judges are expected to consider whether there is a need for repeat cross-examination on similar points in such cases and there may be scope to restrict cross-examination from each defence advocate. However, the judge will have to balance the victim’s rights against the right to a fair trial for each defendant, who is presumed innocent until proven guilty. More generally, judges and magistrates are expected to take an active role in the management of cases involving young and vulnerable witnesses.

“In conclusion, I hope that in this talk I have been able to demonstrate something of what has been and is being done to help make the experience of being in court less traumatic for children. But I am conscious that all these things do not really lessen the desirability that in a better world far fewer children would need to come into contact with the courts at all. Whether it is in the field of criminal justice, on which I have concentrated, or family and care proceedings, the presence of children in court is an admission of failure. The court system can only try to mitigate that failure and provide in court a platform for a better future for them thereafter. But it must be as obvious now as we know it was to Thomas Barnardo that it lies with families, and when these fail, in the work of charities, such as yours, to help in that transformation of morals that provides a caring and humane environment in which all children are valued and can flourish.”

Published 12 December 2011