Mother to sue over children`s experience in court

A child abuse case in the criminal justice system collapsed
after the younger of the two children broke down during
cross-examination, and the judge halted the trial out of
consideration for the child. The boy had been on the witness stand
for one day and his sister had been giving evidence for six

The mother of the two children is to sue the Scottish executive
under the European Convention of Human Rights 1980 claiming that
the way in which her children were cross-examined was “inhumane and
degrading” violating their human rights under Article 3.

The mother claimed that her 11-year-old daughter was subjected
to 25 hours of questioning ,and that the children were treated like
criminals and badgered with the most obscene questions. When the
case ended, there were calls for an overhaul of how Scottish courts
deal with child witnesses. The mother is hoping that by bringing
the challenge it will lead to a change in the law so that other
children do not suffer the same ordeal.

Earlier on this week a juror in the case waived his right to
anonymity to speak out about the children’s treatment in court and
how horrified he was with the way they were questioned. Scotland’s
legal system was accused of failing victims of child sexual abuse
after it emerged new measures to protect them in the courts have
not been implemented – two years after they were agreed.

Joyce Plotnikokk, a legal researcher, was commissioned by the
then Lord Advocate, Lord Rodger, in 1995 to carry out a study on
how to bring about changes in the way child witnesses were dealt
with. Her report, which took four years to complete and made 44
recommendations for change, was presented to Colin Boyd, the Lord
Advocate, in 1999.

In November last year, a crown official said all but one of the
new measures had been accepted, but no timetable for reform was put
in place. Plans included a detailed good practice guide for judges
on managing child witness cases. Scotland and England do not have
the same legal system, but encounter similar problems with criminal
cases where children are required to give evidence.

In 1989 there was the report of the advisory group on video
recorded evidence chaired by His Honour Judge Pigot, which
recommended that children should give evidence on video, that the
tape should be the sole source of the child’s story (with no right
to cross-examine), and that specially trained staff should
interview the children to ensure fairness to both victims and
defendants. The proposals were amended so that the children should
be available for cross-examination.

It may well be time for the matter to be reconsidered in all
parts of the UK. In human rights caselaw, there is the 1985 case of
X and Y -v- Netherlands which states clearly that a state must
provide and use means to ensure that vulnerable members of society
(which must include children) are protected from harm via the
criminal law.

Victims can use the Human Rights Act to ensure that the
executive acts in a way which is compatible with their rights. It
may be that to comply, parliament may have to change the law (in
all UK jurisdictions).

Bernadette Livesey

Human Rights Solicitor

Walker Morris

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