The Criminal Justice Act 1991 has not gone far enough in protecting children who are called upon to give evidence in criminal proceedings. They are still required to operate almost in isolation in an adult-based criminal justice system.
Clearly this disadvantages them in giving evidence, and in many instances will lead to cases being abandoned. Even if the child gives evidence - by pre-recorded video interview, interactive video, in open court or behind screens - the experience will often prove traumatic and distressing for her or him.
What is lacking in the criminal justice process is a clearly identifiable individual who has responsibility for protecting the interests of a child witness before, during and after the giving of evidence. Under the Children Act 1989 there is a strong expectation that a guardian ad litem will be appointed for the child in civil proceedings under that Act. The guardian ad litem has a duty to safeguard the welfare of the child and to act as an independent voice.
Once appointed, the guardian has extensive powers and duties. These include ascertaining the wishes and feelings of the child in respect of matters relevant to the proceedings, liaising with the courts and advising on matters such as the appropriate forum for the hearing. The guardian also has the right to make representations before the court.
The growing awareness of the plight of the child witness in criminal proceedings raises the question of whether a guardian ad litem or a support person should be appointed in criminal proceedings to protect child witnesses. It would be unwise to transpose the civil model directly into the criminal process - there are too many differences between the two systems for that to be feasible.
However, the appointment of a person with a clearly defined statutory responsibility for the welfare of the child before, during and after the giving of evidence would help to ensure that children do not fall down yet another black hole of the adult world.
Such a person would be responsible for explaining the procedure to the child; liaising with the court and ensuring that there are no unnecessary delays in the case being heard; accompanying the child to court and providing after-support.
In addition, he or she should have the right to address the court on matters appertaining to the welfare of the child. Thus, if a child giving evidence appears to be tired or does not understand the question, the support person could intervene.
At present some of the above functions are carried out informally by social workers or others. The effectiveness of this depends upon the sensitivity of the court and other professionals involved in the process.
This is unsatisfactory. A guardian ad litem or support person with statutory responsibilities would go some way towards easing the burden for child witnesses in the criminal justice process. It would enable them to participate at whatever level is thought to be appropriate (pre-recorded video, interactive video, screens or open court).
With careful thought and imagination, this desirable objective could be achieved without prejudicing the rights of the accused. Perhaps we should regard the Criminal Justice Act as being only the start of the reforms.
Senior Lecturer in Law
Department of Law
University of Wales
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