A new video produced by the NSPCC for judges and lawyers looks at the delicate balance required to protect both the interests of children and the rights of defendants by dramatising an indecent assault trial, with interviews with judges and advocates and the voices of young witnesses.
A Case for Balance is supported by the Judicial Studies Board (which trains judges), the Crown Prosecution Service, the Criminal Bar Association and the Home Office. It recommends greater use of video links and screens for child witnesses, and shorter trial waiting times, with judges setting firm dates and giving children more information about the court and procedures before trial.
It also raises issues to stimulate debate among those involved in criminal justice. Should judges meet child witnesses before the trial? How do you stop proper and rigorous cross-examination turning into unintentional bullying? Should children be able to have therapy before a trial?
Lord Justice Judge, chairman of the criminal committee of the Judicial Studies Board, says that the video reflects current best practice but does not necessarily set an agenda for the future. "For example," he says, "the question of whether judges and counsel should wear wigs when a child is giving evidence has been going on for as long as I can remember. We were told 20 years ago that if only we took our wigs off, life would be easier for child witnesses. But the experience of many judges, myself included, is that most children like you to keep them on, because it is what they expect: a policeman wears a helmet, a queen wears a crown, a judge wears a wig."
The video cost pounds 176,000 to make and is the result of a collaboration between 17 different criminal justice organisations. It will be used as part of the training seminars for the 200 circuit judges specially authorised to deal with cases involving children.
Lord Justice Judge points out: "you have to remember there is a defendant who is presumed in law to be innocent until proved guilty. He is entitled to protection against a wrongful conviction. At the same time, children are particularly vulnerable witnesses and the judge must protect them ... But the friendlier you are with the child, the more difficult it is for the defendant to believe you are neutral, and he can start thinking the trial is all cut and dried against him."
It was this concern that led to strong views for and against the trial judge meeting child witnesses before a case started.
Lord Justice Judge says he has never met a child witness before a case. "But I know a number of judges whose views I respect have done it without any adverse effect. What is important is that it is done with both counsel there throughout, and after the defendant has been consulted.
"With those safeguards, if the defendant agrees, there is a good argument for it. The argument against it is that the defendant does not really feel in a position to say no ... he may feel that refusing will somehow reflect adversely on him. So the choice is not actually entirely free.
"I will be interested in the Court of Appeal's ruling if an appeal is brought on that point. It is not just about being user-friendly - it is a question of whether it is right in law to do it. You don't go and see a woman who is the victim of rape, or an elderly widow horribly treated by a burglar."
The emphasis in the video is on the judge stepping in if he believes the defence counsel is being too aggressive with a child. Lord Justice Judge said: "I found that when I was trying these cases, children needed protection from repetitious questioning, which could have the effect of bullying. However, that is easier to say than to achieve. If you keep interrupting counsel, from the defendant's point of view it looks as if you are stopping his counsel from defending him. But the judge is in charge, and has to have the courage of his convictions.
Anne Rafferty QC, chairman of the Criminal Bar Association, says experienced barristers are used to being portrayed as the villains when they defended.
"If a child psychiatrist or psychologist would like to come up with a model of how to cross-examine, I would try it. But you have to remember that there could be another victim in the court - an innocent defendant wrongly accused.
"When I am defending, I say to clients in conference beforehand, the one thing you will not see is a child cry at my hands - it is death. You try to do your job firmly and fairly while treading on eggshells."
She feels that the NSPCC video was useful in highlighting problems, but did not come up with many solutions. "I believe the independent Bar offers the best protection for a good, rigorous system with counsel both prosecuting and defending so they keep a balanced view of what is happening."
Miss Rafferty supports the idea, put forward on the video by Rebecca Poulet QC, that barristers should comment on each other's performance. "We tend to be reticent because we are all self-employed, but perhaps we should be saying, `you went on too long, I thought the child couldn't understand you', or even, `you handled the middle section well'."
The sensitive issue of pre-trial therapy for child abuse victims is raised briefly in the video. Lord Justice Judge saya it was a "fiendishly difficult" problem. "Children, so far as is possible, must be helped to get over the dreadful experience they have gone through as quickly as possible. But ... if someone is being prosecuted you do not want to taint the trial.
"For example, a victim repeating the complaint to those responsible for treating him or her may become inconsistent ... The defence is entitled to know about such inconsistencies. This may result in an acquittal, and that can leave children feeling no one believed them, which has its own traumatic consequences." Overall, Lord Justice Judge believes that: "The law has been changed repeatedly over the last 10 years. What we need to do now is to ensure that these changes have not increased the risk of an improper conviction"
Free copies of the 45-minute video are being distributed to Crown Court centres, CPS branch offices and police training officers. It can also be bought for pounds 11.30 plus p&p from the NSPCC Publications Dept, 42 Curtain Road, London EC2A 3NH.
`Solicitors can make big mistakes with children'
Some solicitors feel that because they have children, they will have no difficulties working with youngsters as clients. But Barbara Mitchels, a Children's Panel solicitor, says: "It is very difficult for most solicitors to admit their own vulnerability, admit their own prejudices and put down their mask of professionalism.
"Solicitors can make great mistakes encouraging children to talk about very difficult things and then walking away at the end of the hour leaving the child, parents or foster carers to mop up a real emotional mess. I consider that to be further abuse."
The representation of children in both public and private law proceedings is becoming increasingly important, with 120,000 applications made on behalf of youngsters every year.
The cultural and philosophical change set in motion by the Children Act 1989 is being reinforced by the Family Law Act 1996, which allows for children to be separately represented in private law proceedings.
The College of Law's Legal Network Television, which provides a video training service for lawyers, has just completed its 401st programme, Children as Clients. It uses interviews with solicitors to examine communication techniques, the respective roles of lawyers and guardians ad litem and issues that can arise over confidentiality.
Guardians ad litem, for example, cannot keep things a child tells them confidential because their duty is to the court. However a solicitor can only breach a child's confidence in extreme circumstances.
Simonetta Agnello Hornby, of Hornby Ackroyd Levy, remembers "sleepless nights" over one 15-year-old client who told her she had witnessed a murder but refused to let her discuss it with the guardian.
Mrs Hornby says: "I always tell child clients I am the only professional they can sack. I try to let them know I have to do what they ask me to do as clients."
Pat Munro, of Wilford Munro, is concerned about the long-term commitment to ensuring children have a voice in court. "I was very disappointed to see that Lord Irvine [the Shadow Lord Chancellor] stated in the House of Lords before Christmas that he doubted the need for children to be represented by both a guardian ad litem and a lawyer in public law proceedings
Children as Clients, Legal Network Television, 2 Bream's Buildings, Chancery Lane, London EC4A 1DP