Screening out stories of abuse: Legal rules that govern children's evidence on video work against the victims, argues Beatrix Campbell

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IT IS a year since the criminal justice system tried a new way of hearing children's evidence. A child may now have its main evidence videoed and shown to a criminal court. But children are no nearer being able to tell the court their story. According to recent Crown Prosecution Service figures, 10,000 children have been videoed, but only 23 cases - all for sexual abuse - have been brought to the criminal court as a result.

The number of prosecutions appears to contradict the consensus in the Home Office, the Department of Health and in police and child protection circles that children rarely lie about sexual crime.

Despite the new system, criminal justice procedures make demands of children that are made of no other witnesses. It scrutinises their evidence with the kind of suspicion that it does not bring to the evidence of adults.

'It is discrimination against children,' says Detective Inspector Cath Adams, a veteran investigator in one of the child protection teams in West Yorkshire, which has a higher-than-average rate of prosecution: of 490 cases a year, 12 per cent go to court.

The Home Office document that established the new system, The Memorandum of Good Practice, provokes the kind of sighs in child protection specialists that Victorian sewers induce in plumbers.

The video interviews have, in effect, replaced a child's examination in court by an advocate (although they do not prevent a child appearing in court for cross-examination). Leading questions are out. Inquiring about suspicions is out. A familiar confidante encouraging the child to 'tell the nice judge what you told me . . .' is out. Moving at the child's pace is out. Showing the child her or his video shortly before the court case - much as adults refresh their memory by scrolling through their statements - is out.

The memorandum is supposed to support criminal proceedings and protect the child. 'There is no reason why such objectives cannot be met within a single interview,' declares the memorandum, which says that the interview should take place early in the investigation and last no longer than one hour.

This has produced near-despair among police, social services and those responsible for the protection of children. It has prompted the NSPCC to collect a dossier on cases, launch a campaign for justice for children and call a conference on the memorandum in London today.

DI Adams claims the memorandum 'only helps those children to whom nothing too serious has happened, who are articulate in the way the judiciary expects; children who can tell you everything from start to finish.'

But that does not apply to most of the children - whose average age is six - in West Yorkshire's caseload.

'If the judge perceives a child to be a victim, if the judge and jury like to see a distressed child, and if the child doesn't fit the stereotype, then what is that video saying to a jury?' asks DI Adams.

'Let's say you are involved in a protracted investigation into a family where abuse has gone on for years,' she adds. The memorandum requires an early investigative interview. 'If you do the interview too soon, when the child has not made up its mind up about the investigation and is weighing things up, then the child is damned. That is because the child will tell you only what it thinks you need to know to stop the abuse. Remember, you are entering a web of conspiracy and fear. We are asking children to pay a terrible price to give evidence.'

According to a superintendent at Scotland Yard, whose investigation of sex rings before the memorandum came into force produced a major prosecution at the Old Bailey, children are offered an 'all-or- nothing' opportunity. Police are reluctant to go back to the child to record later revelations because that is precisely what the memorandum was intended to eradicate. But recent research on children's memory has shown that, although they are reliable witnesses, like adults they remember different things at different times. 'Children get crucified in court for remembering different things,' he said.

A social work manager who has supervised several large investigations reports that the memorandum works well for children who are confident, who did not suffer gross abuse, who are supported by their parents and keen to talk. But 'if a child is frightened or confused, then we're not able to do it'. Building the child's confidence through play-sessions or storytelling 'can't be done any more, because it doesn't fit into the memorandum'.

What to an investigator means building rapport with a child may be interpreted by a defence barrister as inducement. Yet even in an uncomplicated context it is known that children reveal the worst last, if ever.

In the Tyneside nursery case earlier this year, the trainee nursery nurse Jason Dabbs was convicted of sexually abusing more than 60 children. But the children continued talking to their mothers months after they told their story on video. The more they said, the worse the stories became. However, the Crown Prosecution Service would not sanction any further interviews. It therefore lost the opportunity to mount more serious charges.

The Scotland Yard superintendent recalled that one of his major witnesses could not have complied with the memorandum's constraints. 'It's absolute nonsense. We had a young man who took three days to tell his story because he was so affected by what had happened to him - we were dealing with something that went to the roots of his soul. Neither he nor his parents will ever get over it.'

The memorandum has not smoothed the way for children in court - after the video is shown, there is a live cross-examination, and the child may be accused of lying. Nor has it raised the criminal justice system's consciousness of child abuse.

A social work manager wondered: 'What is the point of all this if children aren't believed? If a child has been vaginally or anally abused and there is physical evidence - then, it will be believed. If there isn't, if the child has been subjected to oral sex or other, equally oppressive acts, then the child is not going to be believed.

'The effect of all this is that children are still not seen as credible witnesses.'

To understand this, you have only to compare the number of criminal prosecutions last year - 23 - with criminal compensations the previous year: in the year before the memorandum, 6,822 claims came before the Criminal Injuries Compensation Board for child abuse.

To many professionals the memorandum simply looks like another way to stop children telling their stories. Clues to the source of this pessimism among professionals lie in the genesis of the Home Office memorandum. It was introduced in 1992 after more than half a dozen drafts. In its final incarnation, its expressed priority is not to help children to tell their stories, but to control the conditions under which children speak.

The memorandum was influenced by the Butler-Sloss report on the Cleveland child abuse controversy in 1987 and Judge Pigot's recommendations on videoing children's evidence that were inscribed in the 1991 Criminal Justice Act.

The Butler-Sloss report's oft-cited Chapter 12, 'Listening to the Child', which has been strategically mobilised in all the child- abuse controversies since Cleveland, uncritically floats the proposition that children's testimony may be the effect not of a real event but of ideas they have absorbed from adults. These notions formed the basis of a backlash.

One of the members of the memorandum steering group, Professor Graham Davies, a psychologist at Leicester University and an internationally respected expert on children's evidence, agrees that the distrust of children's testimony influenced the memorandum. The suspicion that children are suggestible 'lies in the origins of the memorandum, in the barristers' concerns about contamination, which is the contemporary version of suggestibility', Professor Davies said. 'They are afraid of police officers or social workers putting words into children's mouths.'

That argument is implicitly repeated in the memorandum. It is the legacy of the Butler-Sloss report. The memorandum codifies the report's suspicion of children as witnesses. Its cause is the protection of children - not from abuse, but from investigation.

Beatrix Campbell is speaking at the 'Independent on Sunday'/IPPR conference on Families, Children and Crime. See page 23 for details.