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The decision in R v Barker on child witness evidence in criminal cases establishes that the competency test is the same for children and adults, write Professor Penny Cooper and David Wurtzel.
With the decision in R v Barker [2010] EWCA Crim 4 the matter of children giving evidence in criminal trials has, so to speak, come of age. On 1 May 2009 at The Old Bailey, Baby Peter’s step-father, Stephen Barker, was convicted of the anal rape of a girl, “X”, who was less than three years’ old at the time of the offence. She was four and a half years’ old when she gave evidence. X had been living with her mother Tracey Connelly, Stephen Barker and his brother. At the age of two years and ten months X was taken into care following the unnatural death of Baby Peter. X made disclosures to her foster carer of sexual abuse by Barker and subsequently to a child psychologist who was seeing her for the purposes of care proceedings. Six months after the first allegation she was interviewed on video under “Achieving Best Evidence in Criminal Proceeding” (“the ABE interview”). The trial for anal rape of a child under 13 was postponed until after the murder trial in the Baby Peter case. X watched her ABE interview a few days before the trial; it stood as her evidence-in-chief. She was cross-examined by leading counsel for her mother and for Barker.
It is worth noting how far and how fast we have come in the matter of children giving evidence. In 1958, in R v Wallwork [1958] 42 CAR 153, Lord Goddard CJ “deprecated” the calling of a child of five as a witness, saying that it was “ridiculous” to suppose a jury would attach any value to it. 28 years later the Court of Appeal in R v Wright and Ormerod [1990] CAR 91 praised the “good sense” behind that proposition.
Things then began to change. Following the 1989 “Report of the Advisory Group on Video Evidence” (“the Pigot Report”), s 53 of the Youth Justice and Criminal Evidence Act 1999 set out that “all persons” “regardless of age” were competent to give evidence. The criteria were whether the witness could understand questions put to him as a witness and give answers to them which can be understood. The Act also put on a statutory basis the special measure regime in order to assist vulnerable witnesses to give their best evidence.
In R v Barker the appellant’s counsel put forward four further matters on which a child’s competence should be judged, including the ability to address themselves to the matters in issue in the case and the ability of counsel to test the account—including that the witness is wrong or not telling the truth.
The court held (at [39]) “whenever the competency question is addressed, what is required is not the exercise of a discretion but the making of a judgment, that is whether the witness fulfils the statutory criteria. In short, it is not open to the judge to create or impose some additional but non-statutory criteria based on the approach of earlier generations to the evidence of small children”.
The court emphasised strongly that the approach must be child-specific:
The appellant’s counsel submitted that he had not been able to put the full details of his case to the witness and that the trial was therefore unfair. The Court of Appeal however carefully read the transcript and concluded that he was so able and in fact did put it. Equally unsuccessful was the submission that the child’s answers were non sequitors: counsel “claimed her answer ‘I don’t say anything rude’ was a non sequitor and an indication of her inability to follow and respond to his questioning. In our mind it shows the opposite. [He] asked two questions in one: ‘everyone tells fibs don’t they?’ and ‘what about if you don’t want to get into trouble?’ X answered the second question: if she did not want to get into trouble she didn’t say anything rude.”
Other complex questions appear in the transcript: “Q: So you don’t [sic] fibs and Curly Kate [the police officer] asked you—not in the tape—whether Stephen had ever touched you and you said he didn’t. Stephen never touched you with his willy, did he? Did he, X?” The questions asked in cross-examination by leading counsel for the mother “were short and simple. It is effectively conceded on behalf of the appellant that they demonstrate that she clearly understood what she was being asked and was well able to answer the questions”. (See at [24].)
The court said (at [42]): “When the issue is whether the child is lying or mistaken in claiming that the defendant behaved indecently towards him or her, it should not be over-problematic for the advocate to formulate short, simple questions which put the essential elements of the defendant’s case to the witness, and fully to ventilate before the jury the areas of evidence which bear on the child’s credibility”.
The final hurdle was R v Powell [2006] 1 CAR 31 and R v Malicki [2009] EWCA Crim 365. Both were Court of Appeal decisions in which the convictions, based on the evidence of a small child, were quashed. In the former this was because the child had been unable to provide intelligible answers to questions in cross-examination; in the latter because it was impossible to be sure if she were giving evidence of the incident itself rather than of what she had said in her taped ABE interview. In both cases there had been delay of some months between interview and trial.
The authors are aware of anecdotal evidence that Crown Court judges have since February 2009 applied Malicki as a matter of principle; that is, on the day of trial, and without supporting expert evidence, they have acceded to defence applications to stay the indictment because it has been Y months since the interview/report of the allegation. That will now have to stop. The court in Barker said (at [50]): “in our judgment the decisions in Powell and Malicki should not be understood to establish as a matter of principle that where the complainant is a young child, delay which does not constitute an abuse of process within well understood principles, can give rise to some special form of defence, or that, if it does not, a submission based on “unfairness” within the ambit of section 78 of the [PACE] 1984 is bound to succeed, or that there is some kind of unspecified limitation period.”
As the judgment and the transcript make clear, questioning children, especially very young ones, is not something all barristers find easy. Research (“In their own words: the experiences of 50 young witnesses in criminal proceedings” by Joyce Plotnikoff and Richard Woolfson for the NSPCC and “Measuring Up?” by the same authors) demonstrates that children understand less than we imagine, and the simple truth is that vulnerable witnesses are only going to give worthwhile answers to questions which they understand. Counsel’s questioning techniques and demeanour play a part here and no barrister should have to be the judge of his own methods. X had the advantage of some special measures but the prosecution did not apply for the use of an intermediary (“the now well understood and valuable use of intermediaries” as the Court of Appeal puts it) and apparently no one intervened during the cross-examination, apart from the trial judge asking X if she wanted a break. There is an obvious need for someone to monitor the communication of a young child on the basis of the intermediary’s report and the agreed ground rules and to be able to intervene when counsel’s questions become too complicated. As many trials have proved already, it is irrelevant if there had been no intermediary in the interview. Being questioned by a police officer and being cross-examined by counsel are not comparable.
Barker has made it clear that children have the right to be heard in the criminal courts. Whether they are competent is a matter for the judge, having regard to the particular child and the particular circumstances. Whether they are reliable is a matter for the jury, having regard to all the evidence. Each case still turns on its own facts. The journey since Lord Goddard’s judgment in R v Wallwork is an ongoing one.
Professor Penny Cooper is a barrister and lecturer at the City Law School, City University, London. David Wurtzel is Counsel’s Consultant Editor. This article first appeared in (2010) 174 JPN 85-86.
David practised at the criminal Bar for 27 years and is a door tenant at 18 Red Lion Court. Prior to his retirement, he was a consultant in the CPD department at City Law School and consultant editor of Counsel. David is a member of the Counsel Editorial Board.
It is worth noting how far and how fast we have come in the matter of children giving evidence. In 1958, in R v Wallwork [1958] 42 CAR 153, Lord Goddard CJ “deprecated” the calling of a child of five as a witness, saying that it was “ridiculous” to suppose a jury would attach any value to it. 28 years later the Court of Appeal in R v Wright and Ormerod [1990] CAR 91 praised the “good sense” behind that proposition.
Things then began to change. Following the 1989 “Report of the Advisory Group on Video Evidence” (“the Pigot Report”), s 53 of the Youth Justice and Criminal Evidence Act 1999 set out that “all persons” “regardless of age” were competent to give evidence. The criteria were whether the witness could understand questions put to him as a witness and give answers to them which can be understood. The Act also put on a statutory basis the special measure regime in order to assist vulnerable witnesses to give their best evidence.
In R v Barker the appellant’s counsel put forward four further matters on which a child’s competence should be judged, including the ability to address themselves to the matters in issue in the case and the ability of counsel to test the account—including that the witness is wrong or not telling the truth.
The court held (at [39]) “whenever the competency question is addressed, what is required is not the exercise of a discretion but the making of a judgment, that is whether the witness fulfils the statutory criteria. In short, it is not open to the judge to create or impose some additional but non-statutory criteria based on the approach of earlier generations to the evidence of small children”.
The court emphasised strongly that the approach must be child-specific:
The appellant’s counsel submitted that he had not been able to put the full details of his case to the witness and that the trial was therefore unfair. The Court of Appeal however carefully read the transcript and concluded that he was so able and in fact did put it. Equally unsuccessful was the submission that the child’s answers were non sequitors: counsel “claimed her answer ‘I don’t say anything rude’ was a non sequitor and an indication of her inability to follow and respond to his questioning. In our mind it shows the opposite. [He] asked two questions in one: ‘everyone tells fibs don’t they?’ and ‘what about if you don’t want to get into trouble?’ X answered the second question: if she did not want to get into trouble she didn’t say anything rude.”
Other complex questions appear in the transcript: “Q: So you don’t [sic] fibs and Curly Kate [the police officer] asked you—not in the tape—whether Stephen had ever touched you and you said he didn’t. Stephen never touched you with his willy, did he? Did he, X?” The questions asked in cross-examination by leading counsel for the mother “were short and simple. It is effectively conceded on behalf of the appellant that they demonstrate that she clearly understood what she was being asked and was well able to answer the questions”. (See at [24].)
The court said (at [42]): “When the issue is whether the child is lying or mistaken in claiming that the defendant behaved indecently towards him or her, it should not be over-problematic for the advocate to formulate short, simple questions which put the essential elements of the defendant’s case to the witness, and fully to ventilate before the jury the areas of evidence which bear on the child’s credibility”.
The final hurdle was R v Powell [2006] 1 CAR 31 and R v Malicki [2009] EWCA Crim 365. Both were Court of Appeal decisions in which the convictions, based on the evidence of a small child, were quashed. In the former this was because the child had been unable to provide intelligible answers to questions in cross-examination; in the latter because it was impossible to be sure if she were giving evidence of the incident itself rather than of what she had said in her taped ABE interview. In both cases there had been delay of some months between interview and trial.
The authors are aware of anecdotal evidence that Crown Court judges have since February 2009 applied Malicki as a matter of principle; that is, on the day of trial, and without supporting expert evidence, they have acceded to defence applications to stay the indictment because it has been Y months since the interview/report of the allegation. That will now have to stop. The court in Barker said (at [50]): “in our judgment the decisions in Powell and Malicki should not be understood to establish as a matter of principle that where the complainant is a young child, delay which does not constitute an abuse of process within well understood principles, can give rise to some special form of defence, or that, if it does not, a submission based on “unfairness” within the ambit of section 78 of the [PACE] 1984 is bound to succeed, or that there is some kind of unspecified limitation period.”
As the judgment and the transcript make clear, questioning children, especially very young ones, is not something all barristers find easy. Research (“In their own words: the experiences of 50 young witnesses in criminal proceedings” by Joyce Plotnikoff and Richard Woolfson for the NSPCC and “Measuring Up?” by the same authors) demonstrates that children understand less than we imagine, and the simple truth is that vulnerable witnesses are only going to give worthwhile answers to questions which they understand. Counsel’s questioning techniques and demeanour play a part here and no barrister should have to be the judge of his own methods. X had the advantage of some special measures but the prosecution did not apply for the use of an intermediary (“the now well understood and valuable use of intermediaries” as the Court of Appeal puts it) and apparently no one intervened during the cross-examination, apart from the trial judge asking X if she wanted a break. There is an obvious need for someone to monitor the communication of a young child on the basis of the intermediary’s report and the agreed ground rules and to be able to intervene when counsel’s questions become too complicated. As many trials have proved already, it is irrelevant if there had been no intermediary in the interview. Being questioned by a police officer and being cross-examined by counsel are not comparable.
Barker has made it clear that children have the right to be heard in the criminal courts. Whether they are competent is a matter for the judge, having regard to the particular child and the particular circumstances. Whether they are reliable is a matter for the jury, having regard to all the evidence. Each case still turns on its own facts. The journey since Lord Goddard’s judgment in R v Wallwork is an ongoing one.
Professor Penny Cooper is a barrister and lecturer at the City Law School, City University, London. David Wurtzel is Counsel’s Consultant Editor. This article first appeared in (2010) 174 JPN 85-86.
The decision in R v Barker on child witness evidence in criminal cases establishes that the competency test is the same for children and adults, write Professor Penny Cooper and David Wurtzel.
With the decision in R v Barker [2010] EWCA Crim 4 the matter of children giving evidence in criminal trials has, so to speak, come of age. On 1 May 2009 at The Old Bailey, Baby Peter’s step-father, Stephen Barker, was convicted of the anal rape of a girl, “X”, who was less than three years’ old at the time of the offence. She was four and a half years’ old when she gave evidence. X had been living with her mother Tracey Connelly, Stephen Barker and his brother. At the age of two years and ten months X was taken into care following the unnatural death of Baby Peter. X made disclosures to her foster carer of sexual abuse by Barker and subsequently to a child psychologist who was seeing her for the purposes of care proceedings. Six months after the first allegation she was interviewed on video under “Achieving Best Evidence in Criminal Proceeding” (“the ABE interview”). The trial for anal rape of a child under 13 was postponed until after the murder trial in the Baby Peter case. X watched her ABE interview a few days before the trial; it stood as her evidence-in-chief. She was cross-examined by leading counsel for her mother and for Barker.
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