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Children’s Evidence in Criminal Proceedings – Experts Call for UK Reforms

On 14th – 15th April 2011, Law Professor John Spencer and Psychology Professor Michael Lamb hosted a two-day conference in Cambridge focused on children’s evidence in criminal proceedings. 

 The conference was prompted in part by reactions to the 2009 trial in which a four and a half-year-old girl was required to appear in the Old Bailey (the Central Criminal Court for England and Wales) for cross-examination via video-link regarding her video-recorded account a year earlier concerning one or more instances of rape that occurred when she was not yet three years old. 

Although the accused man was convicted, largely on the basis of the child’s testimony, the case raised important questions about the ways in which child victims are required to give testimony in British criminal proceedings. Not that these questions are new:  The so-called Pigot Commission concluded more than 20 years ago that justice was unlikely to be well-served by requiring children to appear in court to present evidence and be cross-examined, often months or years after the events in question, and that such appearances were likely to be unnecessarily stressful for children who may already have been victimised by the abusers then on trial.  

In response to the Commission’s Report, the Criminal Justice Act of 1991 made it possible for a video-recorded interview to substitute for the child’s testimony in chief, and the Home Office’s Memorandum of Good Practice on Video Recorded Interviews With Child Witnesses for Criminal Proceedings (1992) detailed the ways in which such interviews should be conducted if they were to elicit the best evidence. 

Unfortunately, contrary to the recommendations of the Pigot Commission, the young victims still had to appear during the trials for cross-examination by live video-link, and this remains the case to the present, despite every reason to believe that the extended pre-trial delays are certain to degrade the memories of young witnesses especially severely, and that the fear of memory contamination may further delay the provision of mental health treatment and intervention. 

Accordingly, the 1999 Youth Justice and Criminal Evidence Act made possible (via Section 28) the video-recording of the cross examination before trial, allowing video-recordings of both the evidence-in-chief and the cross-examination to be played at appropriate points during the trial, while the young victim was able to put his or her life back together in the meantime.  Unfortunately, Section 28 was never implemented, so young victims must still appear at the court house for video-linked cross examination, as was the little girl mentioned earlier in this paragraph.

Recognising the weaknesses of such arrangements—they prolong the stress and diminish the testimonial usefulness of young victim/witnesses who are unnecessarily forced to draw on weakening memories of long-past events—many other countries have since implemented procedures that allow children to be interviewed and cross-examined as soon as possible after the alleged offences come to light, with recordings of their testimony used in court just as anticipated by the Pigot Commission. 

At the April Conference, the audience heard reports from specialists in some of these jurisdictions.  For example, retired Judge Hal Jackson from Western Australia described (and showed videotaped examples drawn from) a system that, since 1992, has allowed children to present all their evidence via pre-recorded interviews supplemented by further direct testimony and cross-examination from specially equipped video-linked rooms as soon as possible after the allegations have surfaced. 

In Norway, Detective Chief Superintendent Trond Myklebust reported, alleged victims of child abuse are interviewed by specially trained police officers in video suites where they are watched by a judge, prosecutor, and counsel for the accused, any one of whom can suggest questions to the interviewers during breaks in the interview.  The interview (in some cases, there may be more than one) must, by law, take place within 15 days of the complaint, and the video record constitutes the direct evidence and cross-examination of the alleged victim, whose participation in the legal system thus ends within a few weeks of its initiation. 

In both Western Australia and Norway, all stakeholders seem happy with the arrangements, and there is no pressure, for example from the defence bar, for change to permit better preparation or more robust cross-examination.  Special procedures to accommodate young victims and witnesses have been adopted in other countries with similar success.

The Cambridge conference attracted a diverse audience of academics (mostly from Law and Psychology), practitioners from the legal (judges, barristers, and solicitors), mental health, police, and criminal justice sectors, the English/Welsh and Scottish civil service, and representatives from prominent advocacy groups.  There was unanimous agreement that the present system was unfairly burdensome and that it needed to be reformed, ideally by prompt implementation of what was called ‘the full Pigot.’  The conference ended on a note of high optimism, with speakers and audience eager to welcome the belated introduction of procedures mooted more than 20 years ago.

About Professor Michael E. Lamb

Professor Michael E. Lamb
Michael E. Lamb is a Professor of Psychology and Fellow at Sidney Sussex College, University of Cambridge.

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