HC Deb 28 February 1992 vol 204 cc1302-10

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Neil Hamilton.]

2.35 pm
Mr. Julian Brazier (Canterbury)

I am grateful for this opportunity to raise the important subject of Home Office guidelines on the preparation of child abuse victims for court. I am particularly pleased to see that my right hon. Friend the Minister of State, Home Department, has made it through the traffic and, at the end of a busy week, is in his place to reply to the debate. I say that not only because he is the Minister who has gone out of his way to keep his store open for his Back-Bench colleagues, but because of the particualar interest that he has taken in the subject, including being the driving force behind the one important improvement that has taken place in the area recently.

Child abuse is today close to epidemic proportions. In the last year, the number of children joining the child protection register in Kent was equivalent to 4 per cent. of the birth rate, yet all the caring agencies assure me that that almost certainly understates the scope of the problem. The statistics cover a range of what I can only describe as the most hideous tortures. Examples range from a little boy who had his arm broken in two places while his step-father forced him to have oral sex, to many cases of the gang rape of individual children as a result of a number of vice rings, and we now even have incidents of child prostitution.

My right hon. Friend has marked out for himself criminal prevention as a key area of interest, looking at ways to prevent the very young from becoming criminals. I put it to him that there is no better way of tackling that problem than by tackling the problem of child abuse. Indeed, my contacts in the teaching profession assure me that most of the difficult and rowdy children, inside and outside classrooms, either have been or are being severely abused.

There have been important advances in the wider areas, and I particularly welcome the White Paper, "Working Together". In Canterbury, partly as a result of that, the caring agencies, the police and social services, are working closely together. But in the matter with which we are concerned today—criminal prosecution for child abuse —we must face the reality that of all cases of children taken away from home where the burden of evidence suggests very serious child abuse, only a small fraction ever come to court, and in only a small fraction of those are convictions obtained.

One advance that will come into force in the autumn, as a result of the Criminal Justice Act 1991—the Pigot proposal on the admission of child video evidence—will help. The way in which children are treated in court and the lack of adequate preparation for that treatment has resulted in two unhappy circumstances. First, it is almost impossible in many cases to obtain convictions and, secondly, the treatment is so traumatic that the police are frequently unwilling to bring charges because they are not willing to submit the child to still further trauma. Either way, the villains go back into the community to continue.

The House will forgive me for reading two examples from an eye witness. The first is the case of Regina v. Etheridge et al. Allegations revolved around 10 children, who had been called into a room, one at a time, and subjected to various forms of sexual abuse by numerous adults. Often, children were forced to watch helplessly while younger brothers and sisters were sexually assaulted. It was 14 months from the date that that came to light until the court appearance. During that time, concern was expressed that the children, who were so badly damaged by the experience, needed therapy. However, as criminal proceedings were pending, it was believed that therapy might taint any evidence that the children might give. There are no guidelines on the subject, but in the past the defence has managed to have a case dismissed because children had received therapy.

The delay in getting the children to court did nothing to assist them to give credible evidence. The defence counsel successfully made an application to have indictments against the defendants severed, which meant that the children were forced to give evidence a number of times at separate trials, each with a different jury. One gave evidence at four separate trials.

Even after that time lapse, none of the children were allowed to refresh their memories from statements. Again, there are no guidelines on that, but past experience suggests that in some courts that could be counted as coaching.

One child of 12, having bravely given his evidence in chief, was cross-examined by seven defence counsels for a period of hours, for a number of days. The defence ploys used varied from wearing the witness down—like dripping water on a stone—to overt haranguing. It comes as no surprise that after a time the child was prepared to say anything to appease his inquisitors and to escape the ordeal, which can only be described as secondary abuse. He left the witness box tired, confused and feeling guilty that he had dared to speak up. The cross-examinations left him with a deep-rooted hatred of women, resulting from his treatment by one woman barrister, who implied that he had invited the abuse that he had suffered.

We should ask ourselves whether we should be so obsessed with providing justice for the accused that we are willing to submit a child victim, who had been raped by seven men, to be flayed by seven lawyers. The fact that such cross-examination was not expected by any of the children made its impact even more devastating. Yet again, any preparation for it could have resulted in the case being dismissed because of coaching.

Frequently, during cross-examination barristers use complicated language such as "Is it not true that?", which caused the young witnesses considerable confusion.

One witness had travelled from Essex to Maidstone. He was tired when he arrived and, having been mentally prepared, he was left outside the courtroom for the whole day while legal arguments were conducted. Those included whether witnesses should be allowed to give evidence on a television link. Eventually, decisions were made and the witnesses were wheeled in to give their evidence. That acted as a form of psychological pressure and made the child witnesses nervous. It left the police virtually no time to prepare the witnesses for what to expect, whether for a television appearance—in which case they would have had to explain to small children that they were not going out in the middle of "Neighbours", but on a separate video link—or for the courtroom. As a result, the children were not able to give credible evidence and several cases were dismissed. Fortunately, some children managed to go the distance, and four of the accused received substantial terms of imprisonment, but the majority went free, straight back into the community, where they are believed to be abusing children still.

I shall call the second case Regina v. X. It involves the buggery of an eight-year-old boy, who gave his evidence at best his tender years would permit. Spectators have said that initially he did very well, and was able to repeat the exact nature of the allegations against him, in spite of the imposing and formal surroundings of the court. Despite his brave performance, the case took a turn for the worse. A clever manipulation in cross-examination elicited a retraction from him. The judge then asked him if what he had said was really true, to which the boy replied, "No." The judge immediately dismissed the case without making it clear to the boy to which part of his evidence the question had referred. In fact, the little boy meant that the earlier part of his testimony, when the defence barrister had confused him, was untrue and not his main evidence.

I wish to make two points from those cases. First, even police officers tell me that being hauled over the coals by a lawyer is like being flayed alive. One can imagine what it does to a child. Of course, children must be cross-examined in the interests of justice, but I believe that it could be done better.

The second and central point which concerns me is that, throughout their preparation of children for the ordeal, the police are walking on eggshells. We are fortunate to have in the Gallery two representatives from Canterbury's excellent victim support scheme—

Mr. Deputy Speaker (Mr. Harold Walker)

Order. The hon. Gentleman must not refer to people outside the Chamber.

Mr. Brazier

The police are treading on eggshells when they prepare children. Therefore, the first of my four recommendations is that I firmly believe that the Home Office should follow up its successful measures contained in the Criminal Justice Act 1991 with firm guidelines setting out to the police what they can and cannot do with child witnesses beforehand. Can they say to children, "You must tell the truth" or "You must stick to the truth even if a barrister is nasty to you"? Can they tell a child "A barrister may make false allegations against you"? Can they say, "This is your original statement", as they would say to an adult witness? The guidelines will be of value only if they have been agreed by the Lord Chancellor's Department and the Lord Chief Justice and, as a result, have been promulgated to judges.

Secondly, central to the issue is a measure which can come only from the Lord Chancellor's Department. The timing and physical arrangement of the trials are crucial, not only in terms of avoiding undue delay. If children are to be prepared properly, any changes of plan—such as whether to use a video link—should be settled well in advance. Barristers should not be allowed cynically to use points of order to delay proceedings and grind children down by making them nervous as they wait to start.

Thirdly, the balkanisation of trials must end. If a group of children produce allegations against an adult or adults, they should all be heard by the same jury so that they can assess the full weight of the evidence. We shall not obtain convictions if each one is stacked up individually, one to one, against the accused. More importantly, where a number of adults are accused of offending against the same child, surely one barrister could cross-examine the child and not one for each defendant.

Fourthly, in a helpful letter that I received yesterday and which dealt with a wide range of issues which stray beyond today's debate, my right hon. Friend the Minister of State discusses appointing an intermediary in court cases to cross-examine on a neutral basis for both parties. He rightly said that the matter was discussed on the appropriate amendments to the Criminal Justice Bill, but I should like his assurance that we are considering carefully the other countries that have experimented with that method. In the select committee in Congress, questions are put to various people by intermediaries, and I believe that there are some countries where intermediaries are also used in court.

My right hon. Friend the Minister of State is, like me, a father and his concern goes back a long way. Day after day, people walk free, unconvicted, from courts, having committed the most appalling offences. That is partly because the police do not have clear guidelines on how to prepare children for the ordeal of court cases.

An important and worthwhile element of the wider programme of crime prevention among the very young would be the promulgation of clear guidelines, agreed with the judiciary, for the preparation of child witnesses for court. I very much look forward to my right hon. Friend's reply.

Mr. Andrew Rowe (Mid-Kent)

rose—

Mr. Deputy Speaker (Mr. Harold Walker)

Order. Does the hon. Member have the consent of the hon. Member for Canterbury (Mr. Brazier) and the Minister? Yes.

2.48 pm
Mr. Rowe

I pay great tribute to my hon. Friend the Member for Canterbury (Mr. Brazier) for raising this important issue, which he did with his customary clarity and considerable imagination.

It is important to emphasise two matters. First, all the evidence suggests that young children cannot be expected to recall reliably events of any kind, particularly traumatic ones, after the passage of many months. Therefore, it is essential that whatever the guidelines for court cases, when young children are involved they should be given the utmost priority within the legal system so that justice can be delivered rapidly.

Secondly, I hope that in the next decade of Conservative government my right hon. Friend the Minister and his colleagues will give serious consideration to whether the current adversarial system is necessarily the best way to achieve justice when young children are involved. There is considerable evidence to suggest that a less adversarial and conflict-dominated system would be much fairer.

It is absolutely unreasonable, as my hon. Friend the Member for Canterbury has said, for young children to be expected to stand up not merely to one adult, but perhaps to seven who, for the past 30 years, have earned their living in many cases by tricking people into making admissions that they might not otherwise have made. The present system not only leads to injustice, but causes severe trauma to the children involved.

2.50 pm
The Minister of State, Home Office (Mr. John Patten)

I am happy to join my hon. Friend the Member for Mid-Kent (Mr. Rowe) in congratulating my hon. Friend the Member for Canterbury (Mr. Brazier) on his excellent and, in parts, very moving speech, which was forceful throughout.

I agree with my hon. Friend the Member for Mid-Kent that when it comes to child witnesses or, indeed, anyone else, we need to keep our criminal justice system in good fighting form. That is one reason why my right hon. Friend the Home Secretary set up the Royal Commission on criminal justice under the chairmanship of Viscount Runciman. That commission will report in June 1993.

My hon. Friend the Member for Canterbury has submitted evidence to the royal commission and if my hon. Friend for Mid-Kent has any further thoughts along the lines that he outlined, necessarily briefly in this short debate, he should write to the noble Lord and the royal commission to make those points absolutely clear. I know that they will be glad to hear from him.

My hon. Friend the Member for Canterbury has raised an issue of the greatest importance. We must be grateful to him for bringing such tragic cases to our attention and giving us the opportunity to consider procedures in child abuse cases. When my hon. Friend entered the House, the issue of child abuse was just being brought into the daylight. When my hon. Friend the Member for Mid-Kent entered the House, I do not believe that the incidence of child abuse was so noted. The scale of child abuse caught all of us by surprise in the latter part of the 1980s and the early 1990s. Before that, it was a hidden problem, and it is a good thing that it has been brought out into the open.

I have tried to address some of the issues, to which my hon. Friend the Member for Canterbury referred, in successive criminal justice legislation that has gone through the House—most notably the Criminal Justice Act 1991, which comes into full force in October.

I know that my hon. Friend the Member for Canterbury is a great campaigner for justice in child abuse cases. As I said, he has made a special submission to the royal commission on that subject. He had the courtesy to send me that submission, which is a fascinating and thought-provoking study. I recommend that any hon. Member who is interested in this subject should ask my hon. Friend for a copy. I understand that he will make one available free of charge to anyone who wants to see it.

The Government share my hon. Friend's strong personal commitment to effective action on this issue. We must all deplore the atrocious crimes perpetrated against children. Like my hon. Friend, I have a young child and I agree that we must do all that we can to ensure that such young victims can be heard by the courts so that their vile abusers may be brought to justice. However, in the interests of justice, we must make absolutely certain that the rights of the accused are not trampled on. Not everyone who is accused and brought to court is necessarily guilty or rightly accused of such crimes. I am glad that my hon. Friend, with his characteristic fairness, made that point.

I agree with my hon. Friend that, in the past, the criminal justice system has underestimated the sheer terror that a court appearance can cause to a child. The stress of criminal proceedings for children has been such that many cases were lost or were not even started because children were too frightened to face the witness box. That is why we took an important step forward in the Criminal Justice Act 1988 by permitting children to give evidence by means of a live television link from outside the court room. That was thought to be a daring innovation and many members of the Standing Committee considering the Bill raised their eyebrows. It is now thought simply to be part and parcel of what we should be doing.

How quickly things move on in that respect, as they have done in the Criminal Justice Act 1991, which carries on the programme of reform, and through implementation of the recommendations of the advisory committee on video evidence set up by the Government under the excellent chairmanship of his honour Judge Thomas Pigot, sometime Common Serjeant of the City of London. As I hinted in my opening remarks, we plan to implement this part of the Act this October, together with a number of other important supporting measures. That should mean that many of the problems facing children should, from October, no longer be there.

Perhaps the most eye-catching of the several changes in procedure that we made in the 1991 Act is the use of pre-recorded video evidence in cases of violent and sexual abuse involving child witnesses. A video of an earlier interview with a child—normally, but not always, carried out by a police officer or a social worker trained to work with children—will, in future, be allowed to stand in place of the child's main evidence. That is of fundamental and far-reaching importance.

However, it is no good having a video of a child's testimony if that testimony is to be ruled out of court as incompetent just because it has come from a child. That would be absurd and that is why his honour Judge Pigot recommended, and we adopted in the Criminal Justice Act, a change in the rules about the competence of child witnesses. We did a great international survey to find out whether children were more or less likely to lie than adults and it found that children were neither more nor less likely to lie. In effect, the 1991 Act says that courts should not presume that a child is an incompetent witness just because of his or her age. They must treat children's evidence, just like the adults' evidence, on its merits. This is an important change and should result in many more children being able to give evidence to our courts, and quite right too.

The video recording should also reduce the need for the child to recount his or her experience directly to court and this is obviously a good thing. The child should not have to relive events by telling the story many months later, and my hon. Friend rightly pointed out the delay in bringing some cases to trial. My right hon. Friend the Lord Chancellor is giving his attention to this procedure, which can have a distressing effect on the child. The existence of such a video may facilitate earlier therapy for the child and serve to encourage guilty pleas.

I hope that the video will have that latter effect. I understand that, in America, it has been found that the effect on the accused of showing such a video so that he, or much more rarely she, can prepare his defence to the allegations made by the victims has led to many cases collapsing at an early stage. Often, when the accused has seen the child retelling his or her story on the video, this has had such an impact on him that he has pleaded guilty. We should not always think that what happens in America will happen here, but that is one of the net effects of similar provisions in some states there, and one can only hope that it will happen in Kent as much as in Winconsin.

The child's account will still need to be tested by cross-examination, but that can take place from outside the court room by means of a live television link. Seeing the video before he or she gave evidence would be a most useful way of refreshing the child's memory. The Act also bans the accused from cross-examining the child in person. I have always been convinced that we should do that.

Finally, with an eye to reducing the unacceptable delays rightly castigated by my hon. Friend, the 1991 Act gives a special power to allow magistrates courts committal proceedings to be bypassed altogether and get the case into the Crown court straight away. It also places on the courts a statutory duty to avoid delay in these cases. I understand that the Department of my noble Friend the Lord Chancellor is considering how best to translate that duty into practical guidance.

These reforms are pretty major changes in the law and I think that they will have an extraordinary impact after October 1992. I believe that they herald a new deal for child witnesses and much brighter prospects for getting justice in these cases.

My hon. Friend mentioned some possible reforms that were not made by the 1991 Act. He was kind enough to acknowledge what the Government have done thus far in the past four of five years, but he wishes to press us to introduce further reforms. In particular, he favours the use of specialists to mediate questions to the child in court. A similar proposal was made when we considered the 1991 measure in Committee and I considered the proposal carefully at that stage.

I do not have a closed mind, but the counter-argument is that cross-examination works best as a dialogue between two people and that the point of cross-examination could be lost if that spontaneity were lost. It is rather like asking someone to act as an intermediary for one of the interjections of the hon. Member for Bolsover (Mr. Skinner). That could not be done by someone standing in between.

In addition, there is the real risk that a third party might inadvertently ask questions in a way that was prejudicial to the case, or might simply misunderstand precisely what was required. It would seem that there are three pretty good chances of something going wrong through the use of mediators. We shall continue, of course, to examine international practice. We shall not hesitate to change the law if our monitoring of the 1991 reforms shows that that is needed. The reforms will not take effect until October, and we shall have to let them run for at least a year. We shall be conducting research and close monitoring throughout to see how they are working. I would be the first to tell the House that I am sure that in due course we shall need to make changes. We are introducing new territory in terms of court practice.

As I have said, the changes in evidential procedure that we have made should make it much easier to get the child's account into court and reduce the number of times that the child is compelled to go over the whole thing again.

My hon. Friend is concerned about advocates' questions during cross-examination. Lawyers came in for some pretty tough strictures during his speech and that of my hon. Friend the Member for Mid-Kent. They often do in the Chamber, though not by the lawyers who so populate some of the spaces on these green Benches. I believe that it is increasingly recognised that a good rapport with the child is vital to the successful conduct of the case. Under the new way of doing things, I do not believe that advocates will think that there is anything to be said for trying to trap the child, which they have undoubtedly tried to do in the past.

We cannot remove the right of one of a group of accused persons to defend himself separately, not least because his part in the offence might be different from that of the others. The judge has power to intervene, however, to curtail unnecessary cross-examination. I think that allowing the video in as evidence-in-chief should help, as should allowing cross-examination to take place from outside the court room by live television link.

We are drawing up guidance for practitioners, exactly as my hon. Friend wishes, on the making of new video recordings. It is aimed at those who will be involved in the investigation of child abuse. We have revised the draft code four times. It is now being double checked by some child protection teams around the country, one of which I visited, to ensure that it contains the best possible practice. It builds on the guidance previously issued to police and social workers by the Home Office.

Mr. Brazier

Will my right hon. Friend allow me to intervene?

Mr. Patten

Yes, of course. We have about two minutes.

Mr. Brazier

Will it be possible for Canterbury to have an opportunity to make an input?

Mr. Patten

Of course—I shall be delighted if my hon. Friend sends in any representations from Canterbury, where invaluable work is being done, as quickly as possible. Speed is of the essence. As I have said, guidance is being promulgated.

The second element of the package, in parallel with reviews that my right hon. and noble Friend the Lord Chancellor is carrying out, is a special joint project that my Department has set up with voluntary child care agencies, designed to provide better information and leaflets which are better targeted at child witnesses and those who care for them. Others involved in the project include the Crown prosecution service, of course. The leaflets may demystify the legal process and thereby reduce the child's anxiety and help the child in the interests of justice.

The overriding aim is to facilitate the testimony of children while keeping an individual child's needs at the centre of attention. A lot is being done—and rightly so —and I am grateful to my hon. Friend the Member for Canterbury for bringing these important issues before the House.

Question put and agreed to.

Adjourned accordingly at four minutes past Three o'clock.