Waiting for justice

Few of us like to be kept waiting, especially when it makes a
difficult situation even more stressful. Take appearing in court as
a witness. As well as waiting for months for the trial to reach
court, you can then spend hours or even days pacing the court’s
corridors before you are called to give evidence.

This is a particular problem when the witness in question is a
child. A recent report from the NSPCC and Victim Support revealed
that, on average, cases involving child witnesses take 11 months to
reach crown court, 10 months to reach magistrates’ court and eight
months to reach youth court.(1) Such long delays mean that many
months after the event, children must relive the details they would
prefer to put behind them, and this can lead to great anxiety.

These delays are despite government policy since 1988 to give
priority to cases involving child abuse or child witnesses. Yet,
studies show that these so-called expedited cases in crown courts
are taking longer than the national average. Barbara Esam, NSPCC
lawyer in public policy, says delay is probably the biggest problem
highlighted by the report. “We are in the position where these
cases are actually taking longer than ordinary cases instead of
being speeded up.

“This is a long-term problem. Until we have a system highlighting
the problem through publishing statistics and tracking delays it
won’t be resolved.”

Joyce Plotnikoff, a justice system consultant and co-author of the
report, says, although the system has improved, it is still “not
good enough or consistent enough”.

She says: “There are some crown court cases that can be brought to
trial within six months and if we were really prioritising these
[child witness] cases there would be an effort to do that within
that time.”

But the problems do not end when the child finally makes it into
the witness box. Few people would relish the prospect of being
cross-examined by a defence barrister determined to prove their
client’s innocence. For a child it can be a terrifying
ordeal.

To lessen the distress, the Youth Justice and Criminal Evidence Act
1999 introduced provisions for special measures for child
witnesses. These included screens to separate the witness from the
court; removing wigs and gowns; giving evidence over a TV link;
video-recorded cross-examination; and examination through an
intermediary. Most of these were introduced in crown courts in
2002.

But Plotnikoff believes more could be done, particularly in
training barristers in the subtle ways in which communication can
go wrong – for example, questions that are poorly signposted when
the subject matter changes, or two questions put together requiring
a “yes” or “no” where the child is unsure what they are saying
“yes” or “no” to.

The need for specialist training for police officers carrying out
videotaped statements when children report crimes was recognised
long ago, says Plotnikoff, but there has been only limited
recognition of the need for such training for those who
cross-examine.
So we have a situation where resources have, quite rightly, been
put into technology to help children in court – such as TV links –
but the benefits of this can be lost when the barristers
questioning them lack the right training.

Plotnikoff says: “It requires specialist knowledge to understand
where the child is having a problem because it’s not necessarily
apparent that the child has misunderstood.”

This specialist knowledge could soon be available as section 29 of
the Youth Justice and Criminal Evidence Act 1999 allows
intermediaries to help vulnerable witnesses, including children,
give evidence. They can accompany the child to the initial
investigative interview and to court.

This provision is being piloted in six areas. It is already running
in Merseyside, Thames Valley, West Midlands, South Wales and
Norfolk and is due to start in Devon and Cornwall. The pilots will
run to the end of the year and are being evaluated – Plotnikoff is
involved in this – with plans to roll out nationally next year.

Intermediaries would provide the court with a report assessing the
witness’s level of communication as well as guiding the court on
questioning the witness and the problems they might encounter.

Intermediaries could make a huge difference to the ability of
children to give their best evidence by ensuring that they
understand the questions and the court understands their answers.
Clearly this support is needed. Half of the 50 child witnesses
interviewed for the report said they had problems with questions
because they had difficulty understanding the structure or the
vocabulary. Encouragingly, 16 children said the judge or magistrate
had intervened when questioning was inappropriate.

In July 2004, the government decided against piloting section 28 of
the act, which allowed pre-recorded cross-examinations. Although it
was acknowledged that pre-recording may not speed up the process,
there was, inevitably, dismay. As Esam says: “Given that
legislation was already on the books, to not even give it a chance
with a pilot was a disappointing decision.”

At the same time, though, the government made a commitment to look
at what could be done instead and set up a review of child
evidence.

The steering group – consisting of an area child protection
committee young witness project, the Crown Prosecution Service, the
Office for Criminal Justice Reform, Department for Constitutional
Affairs, police, NSPCC and Victim Support – is due to pass its
results to ministers before parliament’s summer recess. Esam, the
NSPCC representative, is confident that changes will result,
although she cannot say what these might be.

But she will say that “we need improvements, not just in
legislation, but that can be implemented quickly”. For a start, she
would like delays to be monitored and statistics to be
published.

The report flags up another area of concern – that of pre-trial
preparation. All courts have a witness service for vulnerable
adults and children offering pre-trial support, such as visiting
the court beforehand to see who sits where. Children are referred
to the service by the police, but some forces are better than
others at identifying child witnesses.

Consequently, in 2003-4 more than 18,000 vulnerable or intimidated
witnesses, including children, were only discovered by the witness
service on the day of their trial, so they had no pre-trial
support.

Esam says: “It isn’t just for their welfare, it’s in the interests
of justice. Pre-trial support inevitably reduces their stress
levels and that means better quality evidence. It’s no use having
legislation saying they are entitled to special measures if they
are not being identified.”

Middlesex Guildhall Crown Court has a good referral system to its
witness service. Lina Wallace, witness service senior co-ordinator,
ensures that she meets every child witness so that, even if they
have more than one witness supporter from pre-trial to actual
trial, hers is a recognisable face at all times.

The role of witness supporters is purely one of support and
practicality. Consequently, they are barred from knowing the
details of cases or offering legal advice. Wallace says children
want to be told exactly what is going to happen: “Once you get
talking to them they don’t see you as part of the system. If a
child has things they want to talk about but don’t want to talk to
the police we give them a card and they can phone us with parental
permission.

“Things have improved over the years and we are working towards a
better criminal justice system for children, but there’s always
room for improvement.”

(1) J Plotnikoff, R Woolfson, In Their Own Words. The Experiences
of 50 Young Witnesses in Criminal Proceedings, NSPCC, Victim
Support, 2004