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“Have you embellished your evidence?” Joyce Plotnikoff and Richard Woolfson, the authors of Measuring up?, examine the challenges of questioning young witnesses at court
The biggest survey to date of young witnesses has found that half of the young people interviewed had struggled to understand the questions put to them in evidence. The research findings (Measuring Up? funded by the Nuffield Foundation and NSPCC) form the basis of Good practice guidance in managing young witness cases and questioning children, published in July 2009 and were welcomed by the Judicial Studies Board, the Director of Public Prosecutions, the Criminal Bar Association and the Law Society (see www.nspcc.org.uk/measuringup).
The research involved interviews with 172 prosecution witnesses aged five and over who had been involved in trials around the country. The study compared their experiences with relevant policies: for example, the Judicial Studies Board and Crown Prosecution Service expect advocates to use words that match the age and abilities of young witnesses (sections 4.4.2-3, Equal Treatment Bench Book (“ETBB”) 2005, and pp 16-17, Children and Young People: CPS policy on prosecuting criminal cases involving children and young people as victims and witnesses (“CYP”) 2006). However, half of the young witnesses did not understand questions such as “Have you embellished your evidence?” Children in Crown Courts were more likely to report problems than those testifying in youth or magistrates’ courts.
Given that these are just the children who recognise that a problem occurred, why do so many young witnesses report communication problems? The government’s review into the provision of services to children and young people with speech, language and communication needs (the Bercow Review of Services for Children and Young People (0-19) with Speech, Language and Communication Needs (March 2008) (“the Bercow Report”)) showed that communication difficulties among children in the general population are much more common than previously recognised, even by teachers and health professionals. Bercow found that around half the children in socio-economically disadvantaged groups had significantly lower communication skills than others of the same age; children with good speech sounds but poor language skills were most at risk of being missed.
In the young witness study, some 80 per cent of children were described by their parents as having pre-existing health or development concerns, or as experiencing stress symptoms or being intimidated in the run-up to court. Some parents indicated that no one in the court process was aware of their children’s level of communication and other problems (for example, ADHD and a heart defect affected by stress), with a resulting adverse impact on the way the children were questioned. Barristers who wished to learn by watching the video-recorded interview were not able to do so in 45 per cent of the cases in the study because the statement had not been visually recorded. Another difficulty concerned over-reliance on young witnesses to tell the court if they failed to understand a question. Most were told that they could but fewer than half actually did so. The Judicial Studies Board recommends telling young witnesses to say if they do not understand a question, but also warns judges to be vigilant because children may not admit a lack of understanding (ETTB, section 4.1.3). The study found that children across all age groups experienced difficulties with court language, for example, “Some words were too complicated – too adult.” (Andrew, 12.)
“She was using all her lawyerly language – they get taught to speak like that and we don’t. They don’t realise they are talking to young people.” (Esther, 16.) “There was no space for me to say ‘Can you repeat the question?’ When they said it, it felt you had to give an answer then, it was like high pressure.” (Nick, 17.)
Barristers do have a resource available to help improve communication with young and other vulnerable witnesses and maximise the quality of their evidence, namely the use of an intermediary under s 29 of the Youth Justice and Criminal Evidence Act 1999. Taking together children who experienced problems with questioning but did not bring this to the attention of the court, those with underlying physical or developmental conditions and those who experienced stress symptoms that could affect the quality of their evidence, the study suggested that 70 per cent of children may have benefitted from having their communication skills assessed by an intermediary. However, only two had been so assessed and only one was assisted by an intermediary at court. Those who may have benefited included a hearing-impaired 14-year-old whose hearing aids had not been supplied by the time she gave evidence (on the live link, the barrister was not full-face on screen so she could not see his mouth and had difficulty lip-reading to understand him), and a 15-year-old with petit mal, a form of epilepsy causing absences which may not be apparent to observers over a live link, which this witness used. She said:
“I felt a bit stupid, I didn’t understand some questions. He asked ‘questions in questions’ and used long words”.
One obvious example where an intermediary could have assisted was in the case at the Old Bailey in the late spring, when a four-year-old gave evidence without such help in a child abuse trial linked to the Baby Peter case. The prosecution decided, however, not to ask an intermediary to assess the child’s communication skills. The problem of four year olds giving evidence had just been considered by the Court of Appeal in R v Malicki [2009] EWCA Crim 365 where it was held that the 14-month delay in holding the trial meant that the four-year-old in that case (also unassisted by an intermediary) might have been recalling what was on the video she had just watched, rather than what had allegedly happened to her.
Questioning often conflicted with policy guidance in other ways. The Judicial Studies Board and Crown Prosecution Service expect advocates to allow children time to answer questions put to them in a systematic and logical sequence (ETBB section 4.4.3, CYP, p 16, section 6.16, Achieving Best Evidence, Criminal Justice System, 2007). Over a quarter of the children said defence representatives talked over some of their answers and a fifth described being asked questions that jumped around in time:
“As soon as she heard what she wanted, she’d carry on talking and I’d have to say ‘I haven’t finished’.” (Esther, 16.)
“The first defence lawyer got everyone into a muddle, he even got himself into a muddle jumping back and forth.” (Dale, 15.)
Eleven per cent of victims of sexual offences were asked to demonstrate intimate touching on their body, even though Crown Prosecution Service guidance indicates this is “almost always inappropriate and unnecessary” and that a diagram or body map should be considered (para 11, Safeguarding Children, 2008). The Good practice guidance accompanying the research contains an example of a gender-neutral body outline.
Achieving Best Evidence says that routinely asking young witnesses “Do you tell lies?” ought to be avoided unless the legal representative has grounds for thinking that the witness is a habitual liar, other than the fact that the witness’s evidence contradicts that of the defendant (section 6.16). At a CBA/NSPCC seminar in February 2008, Her Honour Judge Tapping said that she would not allow a child to be called a liar a second time “because it tends to put a block on what the child would want to say”. While some young people were challenged about their account of events without being called a liar, 57 per cent recalled the defence lawyer accusing them of lying and, of these, 70 per cent said this happened more than once.
Official guidance warns against “improper”, “inappropriate” or “over-harsh” cross-examination, and a tone of voice “which might be intimidating” (ETBB sections 4.4.2-3, CYP pp 1617). The way young people described leading questions suggested that they were often experienced as oppressive. Almost 60 per cent said the defence lawyer tried to make them say something they did not mean or put words in their mouth:
“He was trying to get me to say wrong things that made me feel upset and angry.” (Andrew, 12.)
“They try to trip you up by muddling your words – they said things back that wasn’t what I said.” (Rachel, 15.)
Children in the study were asked whether lawyers were polite. Over 90 per cent described the prosecutor as polite, but only 28 per cent described defence advocates this way; one-third were described as “sarcastic” or “rude”.
“The judge was lovely and spoke to me like a person but the barrister spoke to me like an object.” (Lorraine, 14.)
Policies expect the judiciary and prosecutors to intervene when questioning is inappropriate for any reason (ETBB section 4.4.3, Equal Treatment Bench Book, 2005 and p 17, Children and young people, 2006). Some judges closely monitored questioning but not all judges or magistrates intervened, and interventions by prosecutors were even less frequent.
The study and Good practice guidance highlight ways to improve the questioning of children and the management of their cases (see boxes pp 18-19). Advocates should always enquire about the abilities, needs and wishes of young witnesses and consider assessment by an intermediary where this may maximise the quality of their evidence. This will ensure children’s evidence can be tested thoroughly and appropriately.
Joyce Plotnikoff and Richard Woolfson, Lexicon Ltd
The report, Measuring up? Evaluating implementation of Government commitments to young witnesses in criminal proceedings, is the largest and most comprehensive study of young witnesses’ experiences in England, Wales and Northern Ireland. For the purposes of the report:
The report follows on from an earlier report, In their own words: the experiences of 50 young witnesses in criminal proceedings by Joyce Plotnikoff and Richard Woolfson (NSPCC, 2004). That report concluded that “Despite a network of policies and procedures intended to facilitate children’s evidence, only a handful of young witnesses … gave evidence in anything approaching the optimum circumstances. Their experiences revealed a chasm — an implementation gap — between policy objectives and actual delivery around the country.”
Measuring up? found that an “implementation gap” remains between the vision of policy and the reality of many children’s experiences.
Source: Good practice guidance in managing young witness cases and questioning children (Annex A, pp 9-12) (NSPCC, 2009)
The biggest survey to date of young witnesses has found that half of the young people interviewed had struggled to understand the questions put to them in evidence. The research findings (Measuring Up? funded by the Nuffield Foundation and NSPCC) form the basis of Good practice guidance in managing young witness cases and questioning children, published in July 2009 and were welcomed by the Judicial Studies Board, the Director of Public Prosecutions, the Criminal Bar Association and the Law Society (see www.nspcc.org.uk/measuringup).
The research involved interviews with 172 prosecution witnesses aged five and over who had been involved in trials around the country. The study compared their experiences with relevant policies: for example, the Judicial Studies Board and Crown Prosecution Service expect advocates to use words that match the age and abilities of young witnesses (sections 4.4.2-3, Equal Treatment Bench Book (“ETBB”) 2005, and pp 16-17, Children and Young People: CPS policy on prosecuting criminal cases involving children and young people as victims and witnesses (“CYP”) 2006). However, half of the young witnesses did not understand questions such as “Have you embellished your evidence?” Children in Crown Courts were more likely to report problems than those testifying in youth or magistrates’ courts.
Given that these are just the children who recognise that a problem occurred, why do so many young witnesses report communication problems? The government’s review into the provision of services to children and young people with speech, language and communication needs (the Bercow Review of Services for Children and Young People (0-19) with Speech, Language and Communication Needs (March 2008) (“the Bercow Report”)) showed that communication difficulties among children in the general population are much more common than previously recognised, even by teachers and health professionals. Bercow found that around half the children in socio-economically disadvantaged groups had significantly lower communication skills than others of the same age; children with good speech sounds but poor language skills were most at risk of being missed.
In the young witness study, some 80 per cent of children were described by their parents as having pre-existing health or development concerns, or as experiencing stress symptoms or being intimidated in the run-up to court. Some parents indicated that no one in the court process was aware of their children’s level of communication and other problems (for example, ADHD and a heart defect affected by stress), with a resulting adverse impact on the way the children were questioned. Barristers who wished to learn by watching the video-recorded interview were not able to do so in 45 per cent of the cases in the study because the statement had not been visually recorded. Another difficulty concerned over-reliance on young witnesses to tell the court if they failed to understand a question. Most were told that they could but fewer than half actually did so. The Judicial Studies Board recommends telling young witnesses to say if they do not understand a question, but also warns judges to be vigilant because children may not admit a lack of understanding (ETTB, section 4.1.3). The study found that children across all age groups experienced difficulties with court language, for example, “Some words were too complicated – too adult.” (Andrew, 12.)
“She was using all her lawyerly language – they get taught to speak like that and we don’t. They don’t realise they are talking to young people.” (Esther, 16.) “There was no space for me to say ‘Can you repeat the question?’ When they said it, it felt you had to give an answer then, it was like high pressure.” (Nick, 17.)
Barristers do have a resource available to help improve communication with young and other vulnerable witnesses and maximise the quality of their evidence, namely the use of an intermediary under s 29 of the Youth Justice and Criminal Evidence Act 1999. Taking together children who experienced problems with questioning but did not bring this to the attention of the court, those with underlying physical or developmental conditions and those who experienced stress symptoms that could affect the quality of their evidence, the study suggested that 70 per cent of children may have benefitted from having their communication skills assessed by an intermediary. However, only two had been so assessed and only one was assisted by an intermediary at court. Those who may have benefited included a hearing-impaired 14-year-old whose hearing aids had not been supplied by the time she gave evidence (on the live link, the barrister was not full-face on screen so she could not see his mouth and had difficulty lip-reading to understand him), and a 15-year-old with petit mal, a form of epilepsy causing absences which may not be apparent to observers over a live link, which this witness used. She said:
“I felt a bit stupid, I didn’t understand some questions. He asked ‘questions in questions’ and used long words”.
One obvious example where an intermediary could have assisted was in the case at the Old Bailey in the late spring, when a four-year-old gave evidence without such help in a child abuse trial linked to the Baby Peter case. The prosecution decided, however, not to ask an intermediary to assess the child’s communication skills. The problem of four year olds giving evidence had just been considered by the Court of Appeal in R v Malicki [2009] EWCA Crim 365 where it was held that the 14-month delay in holding the trial meant that the four-year-old in that case (also unassisted by an intermediary) might have been recalling what was on the video she had just watched, rather than what had allegedly happened to her.
Questioning often conflicted with policy guidance in other ways. The Judicial Studies Board and Crown Prosecution Service expect advocates to allow children time to answer questions put to them in a systematic and logical sequence (ETBB section 4.4.3, CYP, p 16, section 6.16, Achieving Best Evidence, Criminal Justice System, 2007). Over a quarter of the children said defence representatives talked over some of their answers and a fifth described being asked questions that jumped around in time:
“As soon as she heard what she wanted, she’d carry on talking and I’d have to say ‘I haven’t finished’.” (Esther, 16.)
“The first defence lawyer got everyone into a muddle, he even got himself into a muddle jumping back and forth.” (Dale, 15.)
Eleven per cent of victims of sexual offences were asked to demonstrate intimate touching on their body, even though Crown Prosecution Service guidance indicates this is “almost always inappropriate and unnecessary” and that a diagram or body map should be considered (para 11, Safeguarding Children, 2008). The Good practice guidance accompanying the research contains an example of a gender-neutral body outline.
Achieving Best Evidence says that routinely asking young witnesses “Do you tell lies?” ought to be avoided unless the legal representative has grounds for thinking that the witness is a habitual liar, other than the fact that the witness’s evidence contradicts that of the defendant (section 6.16). At a CBA/NSPCC seminar in February 2008, Her Honour Judge Tapping said that she would not allow a child to be called a liar a second time “because it tends to put a block on what the child would want to say”. While some young people were challenged about their account of events without being called a liar, 57 per cent recalled the defence lawyer accusing them of lying and, of these, 70 per cent said this happened more than once.
Official guidance warns against “improper”, “inappropriate” or “over-harsh” cross-examination, and a tone of voice “which might be intimidating” (ETBB sections 4.4.2-3, CYP pp 1617). The way young people described leading questions suggested that they were often experienced as oppressive. Almost 60 per cent said the defence lawyer tried to make them say something they did not mean or put words in their mouth:
“He was trying to get me to say wrong things that made me feel upset and angry.” (Andrew, 12.)
“They try to trip you up by muddling your words – they said things back that wasn’t what I said.” (Rachel, 15.)
Children in the study were asked whether lawyers were polite. Over 90 per cent described the prosecutor as polite, but only 28 per cent described defence advocates this way; one-third were described as “sarcastic” or “rude”.
“The judge was lovely and spoke to me like a person but the barrister spoke to me like an object.” (Lorraine, 14.)
Policies expect the judiciary and prosecutors to intervene when questioning is inappropriate for any reason (ETBB section 4.4.3, Equal Treatment Bench Book, 2005 and p 17, Children and young people, 2006). Some judges closely monitored questioning but not all judges or magistrates intervened, and interventions by prosecutors were even less frequent.
The study and Good practice guidance highlight ways to improve the questioning of children and the management of their cases (see boxes pp 18-19). Advocates should always enquire about the abilities, needs and wishes of young witnesses and consider assessment by an intermediary where this may maximise the quality of their evidence. This will ensure children’s evidence can be tested thoroughly and appropriately.
Joyce Plotnikoff and Richard Woolfson, Lexicon Ltd
The report, Measuring up? Evaluating implementation of Government commitments to young witnesses in criminal proceedings, is the largest and most comprehensive study of young witnesses’ experiences in England, Wales and Northern Ireland. For the purposes of the report:
The report follows on from an earlier report, In their own words: the experiences of 50 young witnesses in criminal proceedings by Joyce Plotnikoff and Richard Woolfson (NSPCC, 2004). That report concluded that “Despite a network of policies and procedures intended to facilitate children’s evidence, only a handful of young witnesses … gave evidence in anything approaching the optimum circumstances. Their experiences revealed a chasm — an implementation gap — between policy objectives and actual delivery around the country.”
Measuring up? found that an “implementation gap” remains between the vision of policy and the reality of many children’s experiences.
Source: Good practice guidance in managing young witness cases and questioning children (Annex A, pp 9-12) (NSPCC, 2009)
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