Professor Penny Cooper

What are the advocate’s emotional drivers when conducting a cross-examination, wonders Professor Penny Cooper. The ability to continually assess the witness’s demeanour and adjust one’s questioning is crucial, she concludes.

In 1905 in The Art of Cross-examination, Francis Wellman wrote “It requires the greatest ingenuity; a habit of logical thought; clearness of perception in general; infinite patience and self-control; power to read men’s minds intuitively, to judge of their character by their faces, to appreciate their motives; ability to act with force and precision; a masterful knowledge of the subject-matter itself; an extreme caution; and, above all, the instinct to discover the weak point in the witness under cross-examination.”

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.