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Until the Youth Justice and Criminal Evidence Act 1999 came into force, children, particularly young children, were not considered reliable witnesses in the context of criminal proceedings in England and Wales. This view is reflected succinctly in the case of R v Wallwork  42 CAR 153, where consideration was given to calling a 5 year-old to give evidence:
'The court deprecates the calling of a child of this age as a witness . . .the jury could not attach any value to the evidence of a child of five: it is ridiculous to suppose they could'
Even as recently as 1990, in the case of R v Wright and Ormerod  90 Cr App R 91, the approach set out by LCJ Goddard in Wallwork was expressly endorsed in the following terms:
'. . . the validity of, and good sense behind, that proposition has remained untrammelled in the practice of the criminal court.'
However, the Youth Justice and Criminal Evidence Act 1999 turned this approach around. Since the coming in to force of that Act, children are not treated any differently to any other witness and, pursuant to s 53(1) and (3) there is just one single question for the tribunal to ask itself: is the individual witness competent to give evidence:
(1) all persons are competent to give evidence, regardless of age
(3) – unless it appears to the court that he cannot
(a) understand questions put to him and
(b) give answers to them which can be understood
Shortly after the Act came into force, the Court of Appeal considered the question of competence of very young witnesses in the case of R v Barker  EWCA Crim 4. This was an appeal against a conviction for rape of a child ('X')who was, at the time the offence was committed, not yet 3.
X had been removed from the care of her mother and the appellant (her mother's boyfriend) and placed in foster care. When she was approximately 2-and-a-half, she made a comment to the foster carer which was indicative of sexual abuse by the appellant. She was spoken to by a police officer but did not repeat what she had said and indeed appeared to deny that what she had previously described to the foster carer had ever happened. In those circumstances, it was considered that it would not be appropriate to conduct an ABE interview. Months later, however, X made further and similar allegations and the decision not to conduct an ABE was reviewed and reversed. During the course of the interview, X repeated the allegations in some detail and the appellant was charged with rape.
By the time the matter came to trial, the complainant was 4.5 years old. Her ABE interview was to stand as her evidence-in-chief. Before deciding whether to admit it in evidence at trial or not, the judge considered the issue of X's competence. This was done both by viewing the ABE itself and hearing expert evidence and submissions on behalf of the parties. The judge found that X was competent and her evidence was admitted.
After her ABE interview was played at trial, the child was cross-examined and re-examined by video-link, pursuant to the special measures provisions in the YJCEA. After her evidence had finished, the defence raised the issue of competence again, arguing that X had not been able to understand the questions that had been put. The judge found that:
'. . . when simple questions were asked, the defence were able to put their cases sufficiently to ensure that the defendants have a fair trial. . . . The jury observed X with care throughout and are capable, properly directed, of coming to their own conclusions . . .It may indeed be that this case concerns a child at the edge of competency but . . . having seen and heard her, although inevitably her intelligibility and, therefore, her ability to be understood were at times difficult, X did pass the test of understanding and intelligibility sufficiently for me to say that she is and was a competent witness'
The defendant was convicted. He appealed on two grounds, one of which was that X was not competent. The Court of Appeal, however, took the view that in reality the appellant was seeking to argue that a conviction, very heavily dependent on the evidence of a child of 4.5 years old describing events that were said to have occurred when she was not yet 3 years old, could not be regarded as safe.
The Court of Appeal rejected the argument and dismissed the appeal. It said this:
(i) 'The question is entirely witness or child specific. There are no presumptions or preconceptions . . . Dealing with it broadly and fairly, provided the witness can understand the questions put to him and can also provide understandable answers, he or she is competent. If the witness cannot understand the questions or his answers to questions which he understands cannot themselves be understood he is not.' (para 38);
(ii) '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 '(para 39);
(iii) 'Although the chronological age of the child will inevitably help to inform the judicial decision about competency, in the end it is a decision about the individual child and his or her competence to give evidence in the particular trial' (para 39).
The Court emphasised at para 42, finding that:
'. . . the competency test is not failed because the forensic techniques of the advocate (in particular in relation to cross-examination) or the processes of the court (for example, in relation to the patient expenditure of time) have to be adapted to enable the child to give best evidence of which he or she is capable'.
The impact of requiring advocates to adapt their cross-examination when questioning a child was considered in the case of R v Edwards  EWCA Crim 3028.
At trial, C, aged 5, gave her evidence via video link. During her cross-examination, the judge interrupted counsel several times and invited him to pose open questions rather than making suggestions to the child, it being the judge's view that in light of C's age it would be difficult to know if she was just agreeing with counsel or giving accurate evidence.
The defendant was convicted and appealed on the grounds that the way the judge had restricted the cross-examination of C had made C appear more reliable than she was, and that the restriction had prevented the defendant from testing her reliability, consistency and credibility.
The Court of Appeal held that the judge had been right to seek to avoid a situation where defence counsel confronted C, and that it was difficult to see how the right to a fair trial had been compromised simply by the defendant being restricted from asking C 'S didn't punch you, did he?'
These cases and many, many others demonstrate that, two decades after the coming into force of the YJCEA 1999, the expectation and the norm in the criminal jurisdiction in England and Wales in cases involving children, even very young children, is that those children should give evidence, subject only to the question of whether they are competent to do so. The trial process has been adapted to accommodate young witnesses by statute (eg the special measures provisions in the Act itself) as well as in practice (eg by advocates being required to adapt their questioning techniques), and since 2018 a dedicated training programme, 'Advocacy and the Vulnerable', has been available through the Inns of Court to assist advocates to recognise and deal appropriately with vulnerability in the justice system; it is expected that all practitioners who deal with young and/or otherwise vulnerable witnesses will participate in this.
The position is, however, somewhat different in family proceedings.
Before 2010 and the case of Re W (Children) (Abuse: Oral Evidence)  UKSC 12,  1 FLR 1485, it was not the norm in family proceedings to have children giving evidence. This is exemplified by the case of LM (By Her Guardian) v Medway Council, RM and YM  EWCA Civ 9,  1 FLR 1698. In this case, the child had made allegations against the father. The mother had also made allegations but later withdrew them. During the course of the fact-finding hearing, the mother applied for a witness summons compelling the child to give evidence. The father supported the application but it was opposed by the guardian and the local authority, on the ground that it would be inappropriate for such a young child to give evidence and, in the circumstances of the case, that it would be oppressive to require her to do so.
The trial judge had noted 'if there were criminal proceedings this child might be required to give evidence notwithstanding her young age.' He was referred to the case of B v Torbay Council, a decision of Mt J Coleridge given on 21 March 2006 in which the court made observations of needing to have the best evidence possible. In that case a boy aged 13 had made allegations of sexual abuse and then at the age of 17, retracted them. His evidence had been received on video film and not tested in cross-examination. The judge commented that 'however good the procedures for the interviewing of children may be they are never more than that, i.e. interviews. They are not evidence which has been tested in court'.
'It seems to me that the law as to the exercise of this discretion is moving on. If a child can be questioned in the court setting without damage to the child which is oppressive then normally if they are of appropriate age, the child may be questioned.'
He considered that this 10-year-old was capable of understanding the need to tell the truth and of giving evidence, and granted the application.
The Court of Appeal held that the judge had fallen into error, and that there had been no change to the presumption that:
'. . . it is undesirable that a child should have to give evidence in care proceedings and that particular justification will be required before that course is taken. There will be some cases in which it will be right to make an order. In my view they will be rare.' Per Smith LJ at para 44
'In considering whether to make an order, the judge will have to balance the need for the evidence in the circumstances of the case against what he assesses to be the potential for harm to the child. In assessing the need for oral evidence in the context of care proceedings, the judge should, in my view, take account of the importance of the evidence to the process of his decision about the child's future. It may be that the child's future cannot be satisfactorily determined without that evidence. In assessing the risk of harm or oppression, the judge should take heed of current research into the effect on children of giving evidence and should not rely only upon his impression of the child, although that will of course be relevant'.
In considering the appeal, the Court of Appeal exercised their discretion afresh and held that the judge's need for the child's evidence in his search for the right decision in respect of her future had to outweigh the concerns that the court had in respect of the harm that may be done to her.
The child did then give evidence. It is notable that there were no proper procedures, guidance or support mechanisms in place to assist the child, the court or the advocates.
Against this background, Re W (above) constituted a major change in approach. The case concerned five children, the eldest of whom, a 14 year old girl, alleged that her de facto stepfather had seriously sexually abused her. The father was since charged with 13 criminal offences. In the family proceedings, the parties had agreed that there would be a fact finding hearing in which the 14 year old girl would give evidence via a video link. The judge however asked for further argument on whether she should do so. The local authority, having had time to consider the material received from the police, decided that they no longer wished to call the girl as a witness. In November 2009 the judge decided to refuse the father's application for her to be called. Instead, she proposed to rely on the other evidence, including a video-recorded interview with the child. The father appealed.
The Court of Appeal dismissed the father's appeal. They did, however, express some concern about the test laid down in previous decisions and suggested that the matter might be considered by the Family Justice Council. The father appealed to the Supreme Court.
The Court held that 'the existing law erects a presumption against a child giving evidence which requires to be rebutted by anyone seeking to put questions to the child' (para 22) and that this presumption cannot be reconciled with the approach of the European Court of Human Rights, which always aims to strike a fair balance between competing Convention rights:
'Article 6 requires proceedings to be fair overall and this normally entails an opportunity to challenge the evidence presented by the other side, but even in criminal proceedings account must be taken of the article 8 rights of the perceived victim. Striking that balance in care proceedings may well mean that the children should not be called to give evidence in the great majority of cases, but that is a result and not a presumption or even a starting point.'
'When the court is considering whether a particular child should be called as a witness, the court will have to weigh two considerations: the advantages that this will bring to the determination of the truth and the damage it may do to the welfare of this or any child' (para 23)
The court listed the issues that must be considered in particular, at paras 24–26 of the judgment:
(i) the issues it has to decide;
(ii) the quality of the evidence it already has;
(iii) the quality of any ABE interview;
(iv) nature of any challenge the party may wish to make;
(v) age and maturity of the child;
(vi) length of time since the events in question;
(vii) risk of harm to the child;
(viii) support the child has from family and other sources;
(ix) child's own wishes and feelings;
(x) views of the child's guardian;
(xi) views of those with PR;
(xii) risk of further delay.
'. . . the court should factor into its decision-making any steps that can be taken to improve the quality of the child's evidence and at the same time to decrease the risk of harm to the child' (para 27).
At para 27 of the judgment, Lady Hale said this:
'The whole premise of Achieving Best Evidence and the special measures in criminal cases is that this will improve rather than diminish the quality of the evidence to the court.'
These special measures could include videoed cross-examination, cross-examination by video link and putting required questions through an intermediary – all suggestions we are now familiar with when we deal with Re W hearings.
Finally, at para 31, the court held that the issue of a child giving evidence should be addressed at the CMH but that this was 'not an invitation for elaborate consideration of what will usually be a non-issue'.
An important case post-Re W was Re E (A Child) (Evidence)  EWCA Civ 473,  1 FLR 1675. This case concerned allegations of sexual abuse. An application was made for the children to give evidence but the judge rejected this and determined that the issue would be kept under review during the trial. The children did not give evidence and findings were made. The father appealed.
MacFarlane LJ noted, at para 48, that the judgment of Baroness Hale JSC 'would seem to have gone unheeded in the five or more years since it was given' and, at para 56, that 'The previous culture and practice of family courts remains largely unchanged'.
'Children who have made allegations that are the subject of criminal proceedings are required to give live evidence within the criminal process. 40,000 do so during the course of each year . . . Conversely for many years the practice and culture in family proceedings was that such children even if aged in their late teens would never be required to give live evidence in the Family Court.'
The court then considered the Re W exercise and stated as follows, at para 58:
'It is crucial that any issue as to a child giving evidence is raised and determined at the earliest stage, and in any event well before the planned trial date. The court will not, however, be in a position to come to a conclusion on that issue unless it has undertaken an evaluation of the evidence which is otherwise available. Where there has been an ABE interview, and the quality and/or content of that interview are to be challenged, it is likely that the judge will have to view the DVD before being in a position to decide the Re W issue.'
Finally, at para 62 MacFarlane LJ stated that if the ABE interview process is poor and there is little or no other evidence then it may be that no findings of fact in accordance with allegations came by the child can properly be made unless the child is called to give evidence. The Re W exercise must plainly take account of such a situation.
The clear suggestion, then, is that the ABE process really has to be examined even before the court considers the Re W exercise. So what should we be looking for?
The starting point has to be compliance with the good practice set out in Achieving Best Evidence in criminal proceedings. The document is advisory only, but significant departures from the guidance can have consequences at any future trial.
The guidance divides the ABE process overall into 3 broad stages: (i) preparation for the ABE interview; (ii) the interview; and (iii) witness support, during the interview and prior to and during any subsequent trial.
When preparing to do an ABE interview with a child, the investigating team should obtain some information about the child and his/her background first. The ABE guidance document sets out the type of information that the officers will want to gather in a checklist and it includes very basic and obvious details like the child's age, as well as factors such as the child's language ability, current emotional state and range of behaviours and any recent significant stresses the child or the family have experienced.
The team will also need to consider how to prepare the child for the interview itself – what and how to tell him about what it is and why it is being done – as well as how the interview is going to be conducted: what the ground rules will be (eg how to approach truth and lies, when should breaks be provided; who, if anyone should be in the room with the child and the interviewer).
What is really important to bear in mind from the advocate's point of view is that the investigating team is supposed to keep a written record of this information-gathering and planning process and to record the decisions made and the information and rationale underpinning them. This record can be a really useful source of information in a number of ways, for example:
(i) it can contain evidence of conversations with the witness and family members/those looking after the witness which have not been documented elsewhere;
(ii) it may contain information about the witness which is not recorded elsewhere;
(iii) it assists in the assessment of whether the interview was, or was not, well-planned and can prompt further enquiry about the investigative process, adherence to the ABE guidelines, the training and experience of the interviewing officers and so on.
Focussing on the interview itself, this should have four stages: (i) rapport; (ii) free narrative; (iii) questioning; and (iv) closing.
The guidance tells us that the rapport stage includes making the witness comfortable and setting the ground rules – for example, what the witness should do if he/she doesn't understand a question. This section of the interview should cover truth and lies. If a child shows no appreciation of the distinction between truth and lies during this phase of the interview, consideration should be given to commissioning an expert assessment by a clinician of the child's abilities, following consultation with the CPS if necessary. A lack of understanding of truth and lies by the child during the interview and any subsequent clinical assessment may seriously jeopardise the evidential value of the interview.
In the free narrative account stage, the interviewer should initiate an uninterrupted free narrative account of the incident/event(s) from the witness by means of an open-ended invitation. In most instances this should be done by simply asking the witness to concentrate on the matter in issue. The guidance is clear that it is essential not to interrupt the witness during their narration to ask questions; these should be kept for later. The interviewer should encourage witnesses to provide an account in their own words by the use of non-specific prompts and at this stage, these prompts should not include information known to the interviewer that has not yet been communicated by the witness.
Before asking the witness any questions in the third, 'questioning' stage, the guidance notes that it may be beneficial to outline what is expected of them in this phase of the interview. It is helpful to tell the witness that the interviewer will now be asking them some questions, based on what they have already communicated in the free narrative phase, in order to expand and clarify upon what they have said. It can also be beneficial to reiterate a number of the ground rules outlined in the rapport phase of the interview, for example to explain to the witness that detail is required, to explain that this is a difficult task which requires a lot of concentration and to point out that it is acceptable to say 'I don't know' or 'I don't understand' to a question.
The ABE guidance explains the different types of questions that might be asked, as follows:
(i) Open-ended questions: for example questions using the words 'tell' or 'describe'. These are the preferred types of question for information gathering, eg in the free narrative stage.
(ii) The 'next best' question type is 'specific-closed questions'. These should be used to obtain information not provided by the witness in the free narrative account and not elicited through the use of open-ended questions. An example of a specific closed question would be 'Where were you sitting'; 'When did he say that?'.
(iii) Next there are ' forced-choice questions' – the guidance is that these should be avoided if at all possible and used only as a last-resort.
These questions give witnesses only a small number of alternatives from which they must choose and which may, in fact, not include the correct option.
(iv) There are also 'multiple questions' – that is, several questions wrapped up in one – these bring their own problems chiefly because you won't always know which of the questions the witness was answering – this was in fact part of the problem the appellant faced in Barker – but also of course because they can be confusing and difficult for young children to process.
(v) Finally, there are leading questions, which everyone will be familiar with. As the guidance makes clear, it is likely that, where leading questions have been used then should the interview be submitted as evidence in criminal proceedings, portions might be edited out or, in the worst case, the whole recording ruled inadmissible. The effect can be equally serious in family proceedings.
In the final, 'closing' stage of the interview, the guidance suggests that, if appropriate, interviewers should consider briefly summarising what the witness has said, using the words and phrases used by the witness as far as possible. This allows the witness to check the interviewer's recall for accuracy. The interviewer must explicitly tell the witness to correct them if they have missed anything out or have got something wrong. The guidance observes that this process of summarising can lead to further retrieval, and the witness should be told that they can add new information at this point, as otherwise they are unlikely to stop an interviewer in the full flow of recapitulating.
In this final phase, regardless of the outcome of the interview, every effort should be made to ensure that the witness is not distressed but is in a positive frame of mind. Even if the witness has provided little or no information, they should not be made to feel that they have failed or disappointed the interviewer. However, it is important that praise or congratulations for providing information is not given.
It is clear from the case law that, when done well, ABE interviews provide vital evidence which it may not have been possible for the court to receive had it been obtained in any other way. However, it is equally clear that in practice, the guidance is not always adhered to, with serious consequences.
The judgment in TW v A City Council  EWCA Civ 17,  1 FLR 1597 reiterates the importance of thorough planning of ABE interviews and adherence to the guidance, and identifies 3 pivotal documents:
(i) the ABE guidance;
(ii) the Cleveland report;
(iii) the Pigot report.
The judgment goes into helpful detail about the ABE guidance in paras 22 – 30. In particular, it reiterates that the guidance makes it clear that the interviewer has to keep an open mind and that the object of the exercise is not simply to get the child to repeat on camera what she has said to somebody before.
In this case, on the face of the interview there was:
(i) an inadequate establishment of rapport;
(ii) absolutely no free narrative recall by the child;
(iii) an abundance of leading questions;
(iv) no closure: everything was led by the officer and nothing introduced into the interview by the child.
Re E (A child) (Family Proceedings Evidence), already referred to above in a different context, involved another inadequate ABE interview. The Court of Appeal decision emphasises that the trial judge must analyse whether the flaws in the ABE exercise render the interviews unreliable. In this case, the flaws were as follows:
(i) The introduction of the truth and lies aspects of Phase One were not undertaken on camera;
(ii) No note had been taken of what transpired with the children in the police station during the hour that the officer was out of the interview room;
(iii) Children had been seen their home by the interviewing officer for a process of fast track questioning and the short summary note of what each child may have said during the fast track process was wholly inadequate;
(iv) No written record was available at all from the police of the ABE process;
(v) The officer involved was not called to give evidence so the court did not have an account of these matters;
(vi) The questioning of the officers was on all fours with that in TW v A City Council (above)and was a clear attempt to have the children repeat on camera what they may have said to their foster carer.
The Court of Appeal held that: 'it was not open to the judge to hold that the ABE interview material was reliable in the absence of a full and thorough evaluation of the potential impact of the numerous breaches of procedure' (per MacFarlane LJ at para 41)
Wolverhampton City Council v JA and others (ZK and another intervening)  EWFC 62, involved allegations of sexual abuse of two young girls, aged 13 (X) and 12 (Y) at the time of the judgment. Keehan J set out his approach to the applicable law at para 17 of the judgment, as follows:
(a) 'When considering the allegations made by X and Y whether in ABE interviews or elsewhere I bear in mind and apply the following:
b) the greatest care needs to be taken if the risk of obtaining unreliable evidence from a child is to be minimised. Children are often poor historians and many are suggestible: Re B (Allegation of Sexual Abuse: Child's Evidence)  2 FLR 1071 at paragraphs 34 to 35, 37, 40 and 42 to 43;
c) the 2011 revision of Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Using Special Measures;
d) the court must acknowledge and carefully analyse material where there are numerous and substantial deviations from good or acceptable practice in ABE interviews or other procedures adopted for interviewing children and must consider whether or not flaws in the ABE process are so fundamental as to render the resulting interviews wholly unreliable: Re E (A Child) (Family Proceedings Evidence)  EWCA Civ 473 at paragraph 35;
e) a court considering the hearsay evidence of a child must consider what the child has said, the circumstances in which it was said and the circumstances in which any alleged abuse might have occurred: R v B County Council ex parte P  1 FLR 470 at page 478;'
At para 51, Keehan J held as follows:
'Where there has, as in this case, been a failure to follow the interviewing guidelines, the court is not compelled to disregard altogether the evidence obtained in interview but may rely on it together with other independent material to form a conclusion (Re B (Allegations of Sexual Abuse: Child's Evidence)  2 FLR 1071). However, where the court finds that no evidential weight can be attached to the interviews the court may only come to a conclusion that relies on the content of those interviews where it has comprehensively reviewed all of the other evidence (TW v A City Council (above))'.
A local authority v AB and others (KL and others intervening)  EWFC 75 highlighted further failure of ABE interviewers to adhere to guidance. In this case, the officer had not written down any planning or preparation notes. The decision was taken to name the officer involved. The judge found that:
'The role played by DC Andrews in the lives of this family is hugely significant. It was plain from her oral evidence and police investigation log that she had given no consideration to the ABE guidance at any time during her involvement with the children. Rather she breached most aspects of the Guidance and of accepted good practice when interviewing children and young people'.
A selection of the breaches found by the Judge were:
(i) No planning or preparation prior to any interview with the children;
(ii) Excessively lengthy ABE interview;
(iii) Little or no use of open questions;
(iv) The children were asked via their mother and not by the officer to compile a timeline;
(v) Because she was victim-led and had to believe the children's allegations, the officer saw nothing wrong or inappropriate in undertaking 6 interviews with a 15 year old, 11 with a 12 year old and 6 with a 10 year old;
(vi) There was no evidence that the officer had undertaken the interviews with the children or their father with an open mind;
(vii) The officer inappropriately praised the children;
(viii) The officer failed to seek the advice of superior officers and / or their permission to undertake 'a manifestly excessive number of unjustifiably lengthy ABE interviews'.
It is clearly important that advocates for all parties are au fait with the guidance and aware of the material which should be generated as part of the ABE process, as this will assist the court in any Re W exercise and is likely to form part of the questioning at any hearing.
For further reading, see also 'Evidential issues in child sexual abuse cases in the Family Court'  Fam Law 132 (January Family Law)