Cross-examination of children and young people at court
28 May 2013
Could new best practice guidance on the cross-examination of children and young people at court help prevent more young people from the experience of those in the Telford abuse case?
The treatment of young witnesses in criminal proceedings has been in the news following the release of details about a trial held at Stafford Crown Court in 2011 in which seven men were accused of systematic sexual abuse of a group of young girls.
One witness spent 12 days under cross examination by a succession of defence lawyers. There were reports of one defence counsel shouting abuse at a witness and of jurors being visibly disgusted by the treatment of witnesses.
The trial collapsed after four months and six of the seven accused were found guilty of 31 offences at a series of re-trials.
Training in appropriate questioning of young witnesses
The issue of appropriate training for the legal profession has featured in the debates surrounding the case. The Nuffield Foundation has funded work in this area, and in the last month, a new website has been launched to provide evidence-based toolkits for lawyers and judges, including on best practice in the cross-examination of children and young people at court. The toolkits were developed by Joyce Plotnikoff and Richard Woolfson, drawing on their earlier research funded by the Nuffield Foundation and NSPCC.
The toolkits are available at www.theadvocatesgateway.org. Some judges already require advocates to read the relevant toolkit before questioning the witness.
The Gateway website is hosted by the Advocacy Training Council and is supported by the legal professions (Criminal Bar Association, Law Society, Solicitors Association of Higher Court Advocates, Chartered Institute of Legal Executives, Crown Prosecution Service), the Ministry of Justice and the Judicial College.
A central part of the toolkit guidance is that, before questioning starts, ground rules must be discussed about how to adapt questioning to the witness’s communication abilities. The judge may decide that an advocate should not ‘put his case’ directly to the witness and instead allows alternative methods to explain to the jury challenges to the witness’s evidence.
Accusations of lying
The guidance also explains that:
‘Being accused of lying particularly if repeated, may cause the witness to give inaccurate answers or to agree simply to bring questioning to an end. If such a challenge is essential, it should be addressed separately, in simple language, at the end of cross-examination. Repeated assertions to a young or vulnerable witness that (s)he is lying are likely to cause the witness serious distress. They do not serve any proper evidential purpose and should not be permitted by the judge’.
These departures from conventional cross-examination are the subject of A Question of Practice, a training film introduced by the Lord Chief Justice and launched jointly with the Advocate’s Gateway website on 26 April. The film is a joint project of the Criminal Bar Association, CPS, Advocacy Training Council and the NSPCC; the Nuffield Foundation contributed to the planning stages.
Comments on the toolkits include: ‘succinct and extremely helpful guidance’ (The Rt Hon. Lady Justice Hallett DBE, Chairman of the Judicial College); ‘very high quality material drafted by well-known experts’ (HHJ Phillips, Director, Judicial College); ‘Being able to ask advocates to look at the appropriate toolkit will be an enormous help’ (HHJ Rook QC); and ‘Brilliant… an absolutely essential resource’ (Richard Atkinson, chair, Law Society Criminal Law Committee).