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APPENDIX D (of Consultation Report)
Justice for Children paper on advantages of having intermediaries

Consultation on the use of intermediaries for vulnerable witnesses in Scotland

Response from Justice for Children

Introduction

Justice for Children was established in 2001 due to strong lay and professional concern that the interests of children should be compatible with, and indeed enhanced by, the Scottish Justice system. The judicial process should work in a way that ensures that children can give their best evidence. The Justice for Children Child Witness Reform Group comprises some 60 organisations and individuals, including CHILDREN 1ST, ChildLine Scotland and the Scottish Child Law Centre.

General comments and overview

Justice for Children welcomes the consultation on the use of intermediaries for vulnerable witnesses in Scotland. We have long highlighted the particular problems caused to child witnesses by inappropriate questioning, and firmly believe that intermediaries should be introduced into the Scottish Justice system.

In summary, Justice for Children:

• Believes that there are still significant barriers to communicating effectively with vulnerable witnesses
• Believes that the problems posed by inappropriate questioning are endemic to the legal system and cannot be solved by training and guidance alone
• Believes that intermediaries should be introduced as a standard measure for all children required to give evidence in court
• Believes that intermediaries should receive regular training and that there should a be a "bank" of suitable intermediaries
• Believes that having an intermediary may actually assist in cross examination

1.

a) Do you feel that there currently are barriers to communicating effectively with child or adult vulnerable witnesses in the Scottish criminal justice system?

Yes

b) If yes, what do you consider to be the nature and cause of any such barriers?

Justice for Children is concerned that the nature of questioning of children in court continues to have a negative impact on the ability of child witnesses to give their best evidence, and on their experience of the judicial system. In particular the following types of questioning can cause children significant difficulties:

Confusing language

Research by Flin et al ¹. has shown that children's legal vocabulary is very limited but that 58% of cross-examinations did not use vocabulary rated as 'virtually all age appropriate'. Instead children can be easily confused with questions such as 'What is your position in relation to…?' or 'Did he try to resist?' together with court-specific language such as 'learned friend' or 'your lordship' or 'objection'. Research by the NSPCC found that out of fifty child witnesses, twenty-five said that they did not understand some words or questions or found some questions confusing ².

Confusing forms of questioning

Courtroom lawyers often use complex syntax and forms of questions such as questions out of sequence and double negatives that can be very confusing for children. Such questioning techniques can be used to discredit a witness in the eyes of a jury, and can have a very negative impact upon children's ability to give their best evidence.

Repetitive questioning

Continuous repetition of questions about the same event etc can be problematic for younger children who often feel that they are not being believed or that the questioner wants them to change their answer.

Unrealistic demands on memory

Research ³ has found that children as young as 3 years old can recall witnessed events and provide valuable evidence, but that this is very dependant on the skills and careful nature of the questioning. For example, when asked very general, broad questions about what happened on a particular day, children tend to give less information (though it is still of a high quality). They tend to respond less accurately to very specific questions if the questions are also slightly confusing.

Younger children find it difficult to remember the precise details of time, the order of events or estimates of distance/speed, and find it difficult to give descriptions of people's hair colour, height or age. They may also have difficulty distinguishing between different episodes of a related event, this being of particular importance in cases of longer-term sexual abuse. Questioning that focuses on these types of recall Information are therefore likely to be problematic for young child witnesses.

Using written materials during questioning

Children's developmental stage means that they can often struggle to read text, particularly complicated text, and this difficulty is exacerbated when they are requested to read it out loud in a courtroom when they are often nervous and stressed.

Questions incorporating comment or disbelief

'Telling the truth but no one believing me' is regarded by children as one of life's most stressful events ⁴, and yet in our adversarial judicial system, defence agents often accuse children of lying in their evidence.

Distressing questioning

Five child witnesses in research that interviewed 50 child witnesses, described defence lawyers as polite but 19 said the defence lawyer was not polite. Words used to describe them included: aggressive, sarcastic, cross, shouting, rude, harassing, disrespectful, arrogant, overpowering, badgering, scary and pushy ⁵. Children are often shocked at the approach of defence agents, particularly younger children who may not fully understand why they are being questioned in court.

In a recent study into the child witness in Scotland, one judge noted:

[B]eing a witness in a criminal trial or being an accused person in a criminal trial is, unavoidably, I think, under an adversarial procedure, a stressful experience, and one in which, because you are liable to be accused, for example, of telling lies, children will find, even some adults find, a very shocking thing. Adults are not used to being spoken to in the way they are spoken to in court and children even less so. But it would take a far more radical overhaul of our procedure than anyone is envisaging to get over those problems. ⁶

Leading questions

Children are more influenced by leading questions when they are being asked about people or things, rather than events; when they do not have a good memory of the information in question; after a long delay; when the interview is stressful; and when the interviewer lacks skills in questioning children ⁷. Leading questions, particularly about certain circumstances, can therefore be very problematic in ensuring that children can give their best evidence.

Inappropriate questioning is still a problem

At an event hosted by Justice for Children in May 2006, participants from voluntary, legal and academic sectors reported that there had been gradual improvement in the experiences of child witnesses since the Vulnerable Witnesses Act. However, many participants spoke about the continuing problem of inappropriate and confusing questioning of child witnesses during cross-examination. Whilst some participants recognised that there is guidance on this issue, they noted that judges, sheriffs and the prosecution lawyers rarely step in to object to, or to disallow, such questioning. Often this is for fear that any such intervention may be questioned at appeal stage, and may have the effect of allowing the accused to win their appeal. This issue is covered in more depth in answer to question 2 below.

The views and experience of participants at the May event also appears to be borne out by research that shows that many child witnesses are unable to give their best evidence due to the nature of questioning. In a study of 50 child witnesses, 13 adult supporters of these children were concerned about the way cross-examination had been conducted. Those concerned about cross-examination described it as: confusing, complex, rushed, repetitive, bullying and frightening. Whilst this research was in England and Wales, there is little reason to believe that experience is different in Scotland. ⁸

The continuing problem of inappropriate questioning also seems to be borne out in case examples collated by Justice for Children.

c) How could any such barriers be addressed?

Justice for Children believes that the use of intermediaries for child witnesses could potentially address or alleviate common questioning problems in court, such as the confusing language used in courts, confusing forms of questioning (repetition of questions, questioning inappropriate to the age of the child), and distressing questioning. In reality intermediaries are already used regularly in Scotland's courts in the guise of interpreters for witnesses that do not speak English or are deaf.

We believe that the use of intermediaries is in line with the strategic aim of the Crown Office and Procurator Fiscal Service in Scotland to "serve the public interest, prosecuting cases independently, fairly and effectively", and the aim of the Scottish Executive to "increase support and improve standards of treatment of vulnerable witnesses to help them participate in the legal process and give their best evidence".

2.

a) Could better use be made of the court's powers within the current legal framework to help effective communication between a child or adult vulnerable witness and the court?

Better use could be made of existing powers, such as providing standard opportunities for a vulnerable witness to be made familiar with the court setting in advance, and to have full explanations - suitable to their age and understanding - of different roles and responsibilities, how proceedings will be conducted etc.

However, we do not have much hope that relying on the existing powers alone is sufficient. This is in part due to the need for an attitudinal shift in perceptions of child witnesses, and also due to the adversarial system, which by its very nature often requires an attack on the evidence of witnesses for the opposing party.

Justice for Children considers that the court's existing powers are limited in an adversarial system where the role of the judge is to act as an umpire and to oversee fair play. In such a context, if a judge intervenes, even to limit questioning that appears to be harsh, repetitive or unreasonable, she or he risks a complaint, and possibly a subsequent appeal (against conviction) from the examining or cross-examining solicitor or counsel. ⁹ Judges are therefore understandably wary about intervening. In a recent study of the child witness in Scotland one judge commented,

"…of course if you do intervene at the wrong moment you've got an appeal on your hands and the whole thing could start again and then you've got everybody shouting at you, because the children of course - are they to go through it all again? ¹⁰

Another judge noted that,

"…I think what happens too often though is that children's opinions are dismissed in the way in which they are asked questions, or belittled, and if that happens then I think that's the worst thing from the evidential point of view and from the child's point of view, that you can do…The most difficult area of judicial training is judicial intervention in these situations."

The introduction of intermediaries is the only way that Justice for Children can see to mitigate the negative impact of the current adversarial system on the evidence of vulnerable witnesses.

3. Could better use be made of training, guidance and awareness-raising in improving communication between the court and the child or adult vulnerable witness?

Justice for Children believes that training, guidance and awareness-raising are important and should happen alongside the introduction of intermediaries. However, we do not believe that training, guidance and awareness-raising alone would solve many of the problems encountered in the questioning of child witnesses.

In answering this question, it must be highlighted that the question does not take into account the reality of the different interests of those involved in the court process. The court has an interest in hearing the child's best evidence. The party calling the child has an interest in facilitating best evidence. The cross-examiner may have an interest in showing the child to be incredible and unreliable.

It is relatively straightforward to confuse a child by using language inappropriate to the child's age and stage of comprehension. Training, guidance and awareness does not address the conflict of interest between the various parties questioning the child. At worst training may simply equip the cross-examiner to encourage confusion in order to undermine the child's credibility and reliability.

An intermediary prevents abuse of children's lack of comprehension and allows cross-examination focused on the child's evidence, rather than the child's lack of understanding of language.

4. What would be the function and remit of an "intermediary" if it were added as a statutory special measure to the Act?

Justice for Children believes that both the South African and the English and Welsh model of intermediary have many benefits for children, and would support a hybrid system based primarily on the South African model, but which takes elements of the model used in England and Wales.

Finally, Justice for Children believes that having the intermediary relay all questions will lead to the child giving better evidence due to being comfortable with the situation. We firmly believe that evidence will be stronger, more in depth and will allow for further exploration of issues that may not be possible under current requirements.

In Klink v Regional Court Magistrate NO and Others (1996), in which the use of intermediaries was challenged and tested for the first time in South Africa, it was argued and accepted that it was in the interest of justice that the child comprehend the question that was being put to them:

"There are sound reasons why the conveyance of the general purport of the question might enable a child witness to participate properly in the system. Questions should always be put in a form understandable to the witness so that he or she may answer them properly. Where the witness is a child, there is a possibility that he may not fully comprehend or appreciate the content of a question formulated by counsel. The danger of this happening is more real in the case of a very young child. By conveying the general purport of the question, the intermediary is not permitted to alter the question. He must convey the content and meaning of what was asked in a language and form understandable to the witness."¹²

5. Should an intermediary be available for the accused?

It is unlikely that the accused will be a child, as children are referred to the children's hearing as a rule. However at eight, Scotland has one of the lowest ages of criminal responsibility in the world and it is possible that a young child could be prosecuted in court for a serious crime. Where a child is to be prosecuted, there most certainly should be potential for an intermediary.

6. Should an intermediary be available in civil as well as in criminal proceedings?

As outlined above, Justice for Children firmly believes that giving evidence in court is potentially traumatic and difficult for children. While it might be said that the nature of the offence in a criminal case is potentially more traumatic for a child, practical work with children indicates that simply appearing in court is frightening and the source of much anxiety. This applies both to civil and to criminal cases. We therefore propose that intermediaries should be used in both criminal and civil cases.

Where civil cases are concerned, we suggest that some cost could be borne by the parties involved.

How would the costs associated with the use of an intermediary be met?

Justice for Children envisages that the costs of intermediaries in criminal cases will be borne by the Scottish Court Service. Costs must be set in context with the costs to justice and the welfare of children that the current delays and breakdown in trials provides.

In the evaluation of the pathfinder schemes in England and Wales, a major finding was that there were significant cost benefits gained from the use of intermediaries. According to the evaluation of these pilots:

" It was felt that the intermediary use also had the potential to save court time by keeping witnesses focused, reducing the time that might otherwise have been needed to question them." ¹³

8.

a) What skills and background would an intermediary need to have?

A clear consideration in suggesting an intermediary scheme for the Scottish system is who exactly would act as intermediaries. Justice for Children believes that, as a basic rule, the intermediary should always be someone who has not previously been involved with the child witness, they should be impartial and independent, and should quickly be able to establish a rapport with the child witness. The intermediary should also be able to quickly assess the development of the child, ascertain what language is age appropriate and understand what terminology the child uses. The intermediary will need to be able to communicate effectively with the child using simple, age-appropriate language.

Justice for Children suggests that intermediaries are people who have proven experience in working with children and young people, and in understanding their needs. It would be necessary to build up a list of competent intermediaries.

In South Africa, Section 170A of the Criminal Procedure Act 1977 states that the Minister of Justice may by notice in the Government Gazette determine the persons or the category or class of persons who may be appointed as intermediaries. Certain categories of persons are deemed competent to be appointed as an intermediary including paediatricians, psychiatrists, family counsellors, child care workers, social workers, teachers and educational, clinical or counselling psychologists.

b) Would they have to be specifically trained and accredited?

On the issue of training, Justice for Children's preferred approach diverts from the South African model. In South Africa, there is no formal training package for intermediaries. This issue was the subject of a PhD at Praetoria University, in which a training programme was devised. ¹⁴ Justice for Children has been unable to ascertain whether or not this has been put into practice.

In the English and Welsh pilots, a formal training scheme was drawn up by the Home Office and has been delivered by the Continuing Professional Development Department at the Inns of Court School of Law ( ICSL). The training took place in London, Birmingham and Bristol on courses lasting five days. The course covered classroom work addressing the criminal justice system, interviewing, report-writing and courtroom skills (which involved a video-recorded role play), visits to a police interview and to a crown court and a multiple choice test ¹⁵. According to a member of the training team at the ICSL, the participative and interactive training was integral and extremely valuable, allowing intermediaries to participate in role plays and to reflect on the results. ¹⁶ In addition to the examination at the end of the course, the candidates are assessed by a retired judge during a mock role play.

Justice for Children recommends that a similar training programme be devised for intermediaries in Scotland. As the group favours the role of the intermediary as interpreter over the role of the intermediary as used in England and Wales, a further aspect of the training would need to involve work on communicating with children and child-friendly language. CHILDREN 1ST currently provides training and consultancy services for a wide range of individuals and organisations working with children and would be happy to advise on this aspect of such a training scheme for intermediaries.

Justice for Children envisages that, on completion of such a scheme, intermediaries would be registered in a national database. They would be required to undergo regular refresher training courses.

9. Please indicate whether you agree, disagree or are unsure about the following statements:

a) The individual needs of the witness (child or adult) would need to be assessed in advance and taken into account in deciding whether to appoint an intermediary as a special measure

Disagree. As outlined above, Justice for Children favours the South African/ Pigot model because it works on the assumption that children need an intermediary because they are children rather than because they have communication difficulties. The model used in England and Wales is based primarily on the assumption that communication difficulties prevent a child from being able to give their best evidence.

Justice for Children strongly believes that making intermediaries only available to those with communication difficulties is contrary to the premise outlined in the Vulnerable Witnesses (Scotland) Act 2004 that children are automatically vulnerable by mere virtue of their age.

A vulnerable witness is defined in section 1 of the 2004 Act, as it amends section 271(1) of the Criminal Procedure (S) Act 1995, as a person "under the age of 16 ...." The definition is not subject to any conditions relating to needs or disabilities. Therefore the Act is based on the premise that the very fact that a person is under 16 is enough to consider them a vulnerable witness. To introduce a condition that only children with communication needs require an intermediary would undermine this definition of a vulnerable witness by implying that children with typically developed communication abilities are less vulnerable.

Moreover, a child that is not deemed to have communication difficulties may develop difficulties in communication through being in court.

b) The individual needs of the witness (child or adult) would be the decisive factor in deciding whether or not to appoint an intermediary as a special measure

Disagree.

c) The use of an intermediary should be treated as a "standard" special measure for child witnesses if introduced under the Act

Agree strongly. Justice for Children firmly believes that all children asked to give evidence in court are vulnerable by mere virtue of being children, and therefore that intermediaries should be offered as a standard special measure.

In England and Wales, Section 29 of the Youth Justice and Criminal Evidence Act 1999 does not prescribe a minimum condition for intermediary use: the eligibility criteria are the same as those for other special measures (section 16). Those under 17 at the application hearing are eligible as of right. ¹⁷

In South Africa, if the defence counsel objects to a prosecutor's application for an intermediary, evidence must be put before the court. However, in practice, applications are rarely refused, and the vast majority of cases involving child witnesses proceed with an intermediary.

Justice for Children bases its preference of intermediaries as a standard measure on its practical knowledge that giving evidence in court is a potentially traumatic experience for any child in any situation.

d) The use of an intermediary should be treated as a "further" special measure for child witnesses if introduced under the Act.

Should it be not possible for intermediaries to be introduced as a standard special measure, Justice for Children would accept that intermediaries should be standard for children under the age of twelve and non-standard for children over the age of twelve. This would be consistent with other legislation and the United Nations Convention on the Rights of the Child.

e) Intermediaries should be available on application to the court for adult vulnerable witnesses.

No comment

10. What, if any, impact do you consider the use of an intermediary might have on examination and cross-examination of a witness?

A clear concern voiced in previous discussion of the concept of intermediaries has been that it may cause problems in the cross examination of witnesses. As stated above, Justice for Children believes that intermediaries would actually assist in cross examination, by allowing the cross examiner to gain better, stronger and more in depth evidence from the child witness ,where the aim is to elicit evidence helpful to the case being made. The use of an intermediary will also assist in preventing unfair advantage being taken of the child's lack of understanding of language, so that a fair assessment can be made of the child's credibility and reliability.

The concerns regarding cross examination were tested in a 1996 a challenge to the South African system (case Klink v Regional Court Magistrate NO and Others).

The two grounds of the challenge were:

1. Whether the accused's right to a fair trial was violated as his rights to confront and cross-examine the witness were unfairly curtailed by the intermediary as the intermediary was only required to convey the 'general purport' of the question; and

2. Whether the physical separation of the child witness from the courtroom resulted in a violation of the accused's right to a public trial.

The Court concluded that the accused's right to cross-examine the witness had not been violated. The Court found:

(1) Though cross-examination is a powerful weapon that plays a vital role in proceedings it is not an absolute right in the sense that courts do have the right to disallow questions in certain circumstances. The object of cross-examination is to cast doubt on the evidence of the witness and to elicit evidence favourable to the accused.

(2) Though cross-examination through an intermediary may be blunted it does not mean that the accused is denied a fair trial. This may assist the court in establishing the truth as the child witness is in a better position to participate in proceedings. The child witness is protected and this addresses the imbalance between the child and skilled counsel.

(3) The trial court must ensure that unfairness does not result and has the power to instruct the intermediary to put the question as phrased by counsel.

(4) The court held that the physical separation of the child witness did not violate the accused's rights to a public trial.

(5) The court found that a proper balance could be achieved between protecting the child witness and the accused's rights to a public trial by allowing the child to be in separate, congenial surroundings.

11. What, if any, impact do you consider the use of an intermediary might have in enabling the jury (or judge) to make an assessment of the witness's credibility and reliability?

As mentioned above, the use of an intermediary will allow the jury or judge to make a fair assessment of credibility and reliability, rather than an assessment that is unfairly skewed by the child's lack of comprehension of the questions put.

12. What would be the advantages and disadvantages of adding the use of an intermediary as a statutory special measure under the Act?

Justice for Children has already submitted two papers to the Scottish Government outlining the advantages of intermediaries.

13. What are the advantages and disadvantages of working within the current legal framework?

The entire foregoing paper has detailed the reasons why both the current legal framework is inadequate and why the status quo is not advantageous if the goal is to achieve best evidence from children.

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