It is a pleasure to follow on from the contribution made by the Honourable member for East Worthing and Shoreham, who as Children’s Minister, responded positively to the Parliamentary Inquiry into children who go missing from care, conducted by the All Party Group on Runaway and Missing Children and Adults, which I chair.
I am very pleased to support his call for an over-arching inquiry.
Over the past 20 years, we have had numerous high profile inquiries and serious case reviews after children have been harmed, abused and killed.
Almost without exception, these inquiries and reviews have all come to the same conclusions – that poor inter-agency working, sharing of information and communication were significant factors in failures to prevent the child’s injury or death.
There is a public frustration that time and time again recommendations point to the same failings in the system.
There have also been 557 Serious Case Reviews since 2007 saying similar things.
I do recognise that many important improvements in safeguarding and protecting children, have been introduced by the previous government and this government.
However, it is clear, that more still needs to be done and there are many lessons to be learnt.
The late Allan Levy QC – who reflecting on his experience of chairing the Staffordshire “pindown” inquiry in 1991 – talked a decade later about the plethora of recommendations that were variously watered down or ignored.
I think it is worth revisiting his idea for a small body to be set up to monitor the progress of the implementation of the recommendations of inquiries on a regular basis.
That role could be carried out, for example, by the Office of the Children’s Commissioner, who could report to Parliament annually about progress in implementation.
It seems to me that a lot of reviews and inquiries look at the failures of the organisations around the child rather than putting the child’s voice and experience at the centre of the review.
Recently I looked at a case review from Stockport and I was struck that on a number of occasions the case was closed because of difficulties in communicating with the child. Surely a better way would have been to find someone capable of talking to the child and winning her trust.
Communicating with children
Listening to the children who gave evidence to our inquiry, it was clear that children felt they had not and were not being listened to. One of the key challenges is being able to communicate properly with children so that they feel able to talk about what is happening to them.
I agree with the Children’s Commissioner, Maggie Atkinson, that staff who work with children and young people, from whichever discipline or profession, should experience a common set of training that crosses all boundaries.
Our APPG inquiry identified poor care in some of our children’s homes and in response the Government announced it would introduce a new framework of training, qualifications and career pathways for residential care staff. It is imperative that effective communication with children is at the heart of that training.
Unless we can communicate with children we will not know what is going on in their lives and therefore we will not be able to prevent them from coming to harm
It is quite right, for example, that when children go missing, they are given a return interview by someone who the child trusts to find out where they were and what they were doing as there is a link between going missing and risk of child sexual abuse. The Children’s Society recently published a report which said that less than half of councils[i] in England offer Return Interviews to all children who go missing from care. This is very disappointing.
Sadly, all too often, that essential communication with children does not happen and we find out all too late of the horrors of the experience those children have been subjected to which they then have to relive as witnesses in our courts.
There is widespread concern about the treatment of child witnesses in the court system and I would say that the failures to provide sufficient support to child witnesses is based again on inadequate understanding of how to communicate with children.
Reforming the court system
No-one should be in any doubt about how much children worry about going to court. Many children express those fears to the NSPCC’s childline and I will just read out one example:
One girl said:
“I have to go to court this week to give evidence and I really don’t want to. I didn’t want to report the abuse but I was told I had to. I self harm again now, I had stopped for a bit but it’s got worse again recently. I do it so I can cope with my fears of going to court. It just feels like everything’s my fault and I wish I had never told anyone.”
I welcome the introduction of new guidelines issued by Keir Starmer, the DPP, on cases involving child sexual abuse, which he said would ensure that the focus was on allegations made by victims rather than their weaknesses and vulnerabilities.
I fear we are a long way from that in the way witnesses are cross examined in our courts.
The Government is making progress in piloting Section 28 of the Youth Justice and Criminal Evidence Act 1999, which will allow pre-recorded cross examination of young and vulnerable witnesses – and that is also very welcome.
I hope that the pilots will be given sufficient time to gather data and insights and that an independent evaluation is established as soon as possible.
Recently I tabled a series of Parliamentary Questions which revealed that, for the first three months of 2013, there were 947 prosecutions for sexual offences for children under 18 years of age but in the same period only 157 Registered Intermediaries were requested for children aged 0 to 17 in all cases, including sexual exploitation. That is around 16 per cent of cases.
This indicates to me that neither the police, nor prosecution, nor defence, nor the courts really understand how difficult it is for children to communicate in the present adversarial system and do not understand the need for Registered Intermediaries to facilitate communication between them and the court.
Ruth Marchant, who runs an excellent organisation called Triangle in Brighton, which has 15 years experience of taking children’s evidence, said that the English criminal justice system has not developed with young children in mind and relies heavily on spoken testimony. This presents significant barriers to children who find it difficult to put their experiences into words.
Research shows that children give the most reliable and accurate information when they are asked open questions, which do not suggest the answer and when they are allowed to tell their story in their own words, followed up by non-leading closed questions to home in on specific aspects of evidence. This is not what happens in cross examinations in our courts.
Interestingly enough, in spite of all the publicity surrounding witnesses who have been called liars and fantasists and aggressive cross questioning by multiple lawyers, there have been barely any complaints to the Bar Council, which indicates the acceptance and normalisation of aggressive, adversarial cross examinations.
I have been reading with interest work that has been done by academic experts such as Professor John Spencer of Cambridge University and Joyce Plotnikoff about the need to reform the rules for the conventional practice in the cross examination of children.
And I would like the minister to consider establishing a Commission of Inquiry, made up of expert judges and leading academics, into reforming the rules on cross examination of children after the spate of recent high profile sex trials in which lawyers branded vulnerable victims as “liars” again and again.
The way some lawyers cross examine children continues to be a thorn in the side of justice.
Of course, the right of the defendant to a fair trial and to fairly examine the witnesses against him or her must be sacrosanct. But the process has to be about obtaining the best quality of evidence in a way that is robust, reliable and safe for the witness.
As Lord Justice Auld said in his Review of the Criminal Courts:
“A trial is not a game under which a guilty defendant should be provided with a sporting chance.”
I do accept that some children tell lies. But I am talking about developing a process that tests child witnesses properly but which can be relied upon to produce trustworthy evidence. That is in all our interests, especially the innocent defendant.
After the horrific trials in Derby, Rochdale, Oxford and Telford it is clear that we need a new model for cross examination.
Currently the court appears set up as a theatre in which lawyers perform for the benefit of the jury. The current process gives barristers a licence to mislead and confuse and to blow smoke over an issue.
It is not really cross examination of evidence at all, but it is about smearing and breaking down the witness to get defendants off the hook.
One senior English barrister told Dr Emily Henderson, a visiting Fellow at Clare Hall Cambridge and a criminal barrister herself who is doing a six month study into the impact of changes to cross examination, that :
And I quote :
“You are always really playing to the audience. Of course, it is one-on-one in that there is only one person answering questions, but you are constantly aiming everything at the people who are ultimately going to be making the decision. So you are playing to the gallery.”
Another barrister, told Dr Henderson: “I have three speeches: my opening, my closing and my cross examination.”
Barristers in sex abuse cases must be stopped from manipulating child witnesses like puppets.
As many leading academics, including Spencer and Plotnikoff, have said that thirty plus years of empirical research in this and similar adversarial jurisdictions has shown again and again that conventional cross examination is more likely to confuse and mislead children than to draw out accurate and reliable evidence. There is evidence that a ban on repeat and suggestive questions for all child witnesses and increased interventions from judges would lead to better evidence in court.
The Commission, which I am proposing, would consider what further measures might be undertaken to improve the safety and reliability of processes for the taking and investigation of children’s evidence by the criminal courts.
In 2012 Plotnikoff and Woolfson concluded that at least 50 per cent of all the 394 child witnesses they had interviewed over the decade reported not understanding cross examination questions.
The Commission should also examine extending the role of Registered Intermediaries to allow them to cross examine vulnerable witnesses under the direction of counsel.
This idea was first raised 20 years ago in the 1989 Pigot Committee Report, which recommended that advocates questions should be relayed through a specialist child examiner, such as a paediatrician, child psychiatrist, social worker or other person who enjoys the child’s confidence.
In most other continental jurisdictions, including France, Germany, Austria, Norway and Italy young child witnesses are questioned by a neutral specialist. The interviewer investigates issues the defence wants raised and consults with the defence in the process.
It is a shame that Registered Intermediaries are currently only used in a small percentage of sexual abuse cases in the UK. I would like to see them used as a matter of course. The Intermediaries currently help guide the child through the court process and liaise with the Judge involved. However they do not put questions directly to the child.
I was heartened that in 2010 and 2011 the Court of Appeal released several judgments designed to clean up poor cross examination techniques.
The Court was very clear that cross-examiners must use language appropriate to the developmental stage of the witness. The Court also said that advocates must avoid heavy handed suggestion of the “that didn’t happen, did it?” variety because it risks contaminating the children’s evidence.
The Court said – and I quote:
“There is undoubtedly a danger of a child witness wishing simply to please. There is undoubtedly a danger of a child witness seeing that to assent to what is put may bring the questioning process to a speedier conclusion than to disagree … It is generally recognised that particularly with child witnesses short and untagged questions are best at eliciting the evidence. By untagged we mean questions which do not contain a statement of the answer which is being sought.”
However despite these encouraging comments from the Court of Appeal the issue of how we treat children in court is a still a massive problem.
In the last couple of weeks we had the judge who described a 13 year old victim of abuse as “predatory”. This was in addition to one of the barrister’s in the Oxford case accusing one of the girls of being a serial liar and fantasist who had fabricated the allegations. And a witness in the Stafford Trial had to endure being called a liar day after day.
Children’s charities and victim support groups said that the Staffordshire trial shamed British justice.
These cases demonstrate the urgent need for reform.
I hope the minister will agree with me that a Commission to look into further reforms of the practice of cross examination is the only way to ensure that in the future we get the best possible evidence without which the courts cannot do justice either to the victim or the defendant.