HC Deb 13 December 1994 vol 251 cc894-902

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

10.56 pm
Mr. Julian Brazier (Canterbury)

I am grateful for the opportunity to raise for the second time the important issue of child witnesses in child abuse cases.

It is a subject that we are often reluctant to think about because it involves some very sad cases. However, thanks to Government action and a great deal of hard work by the voluntary sector, progress has been made, especially in the past three or four years. I am thinking especially of the Criminal Justice Act 1991, which allows prerecorded videos, the package introduced jointly by the Government and the National Society for the Prevention of Cruelty to Children for best practice for courts and child witnesses and the provisions of the Criminal Justice and Public Order Act 1994, which have also assisted child witnesses. My hon. Friend the Minister of State, Home Office, the hon. Member for Penrith and The Border (Mr. Maclean), will be familiar with those provisions and I am delighted that he is to reply to the debate.

The fact remains that court is still a deeply harrowing experience for children who have often already been very seriously damaged. Of course, I am not suggesting—no reasonable person would—that children's testimony should not be tested in a proper legal process. It is inconceivable that we could start to convict people on the basis of allegations alone, but I am saying that, far from promoting justice, many features of our legal system in fact undermine it and do two things in the process. First, they further damage children who have already undergone extremely traumatic experiences and, secondly, they still often discourage the police and social services from pressing charges for the straightforward reason that they do not want to put a child through the horrendous experience that court all too often is.

I want to focus on four particular aspects. The first is delay. I know that the Government are trying to get such cases fast-tracked, as the Royal Commission on criminal justice recommended, but I have seen two surveys in the past week. One was carried out in Surrey by the National Society for the Prevention of Cruelty to Children, and the other, which is still in the process of compilation, is being conducted in Kent by the National Children's Home. They both suggest that, typically, child cases are still taking 10 to 12 months to come to court. That is a area in which I suggest that justice delayed is all too often justice denied. For a child to have to remember the exact details that long, very often to be denied therapy because of the danger of that causing the case to collapse and, worse still, frequently seeing the listings postponed and postponed, is prejudicial to justice.

The second issue, which seems to be imperative, is the training of judges and barristers. For divorce cases, when child custody issues are involved, we have specialist family courts, in which the judges and the lawyers concerned have had specialist training in how to deal with children. For criminal cases, of course, we cannot have such specialisation because it would further worsen the listings problems and we would have more delays rather than fewer. But we could have a sensible level of training for judges and barristers.

Very often, judges will allow barristers to ask children completely unintelligible questions. In a recent case—I am indebted to the NSPCC for the cases—a prosecution lawyer, supposed to be on the side of the child, asked him the following question: My learned friend has suggested that the incident you described earlier was in fact inaccurate. Was it accurate or not? That was asked of a mentally retarded 12-year-old. I am not even sure whether I would have known what it meant myself.

Worse still, often, judges allow defence barristers to bully people. Another case from the NSPCC survey said: Lucy had been questioned through the CCTV link by prosecution and had just begun cross-examination by the defence when the defendant was heard crying and wailing in the courtroom. The defendant was a male adult. The case continued: As the defendant was distressed, the judge agreed to a 15 minute break to allow him to compose himself. The child waited for 15 minutes. Then, just after the questioning began again, the court decided to break for lunch. She returned to be confronted by repeated accusations of lying from the defence counsel until, eventually, the young child broke down and cried. The judge allowed no adjournment in that case. A male adult was allowed an adjournment because he had burst into tears, yet a young girl was not.

That brings me to my third point, which is what I call the last-minute syndrome. All too often, the child is told only on or just before the day whether his or her recorded evidence will be allowed to be shown, whether a video link will be used for cross-examination, and whether the ridiculous paraphernalia—for a children's case—of wigs and gowns are to be used.

Mr. Alan Howarth (Stratford-on-Avon)

I am sure that the whole House is very grateful to my hon. Friend for raising these important and difficult issues. He is describing some intensely unsatisfactory aspects of court procedure. Does he agree that we need to assemble a model of best practice and to guide the courts in very clear terms that they should adhere to it?

Mr. Brazier

I am most grateful to my hon. Friend. I should note at this point that I am very impressed by the number of hon. Members on the Government and Opposition Benches who have chosen to support this debate. It shows the degree of interest in the subject. My hon. Friend the Member for Basildon (Mr. Amess) is here, and the right hon. Member for Berwick-upon-Tweed (Mr. Beith) and the hon. Member for Newcastle-under-Lyme (Mrs. Golding) are also present, as well as my hon. Friend the Member for Chislehurst (Mr. Sims).

Another aspect of the last-minute syndrome is whether a child will be allowed to review his or her evidence before taking the witness stand. Indeed, recently, an entire case collapsed after months of work and preparation, because when the child was finally confronted with the interview notes and requested to read them out on the witness stand, he could not read the original interviewer's handwriting. Of course, we need best practice. I suggest that we need a straightforward pro forma in which the bulk of those items are identified. The Lord Chancellor's office should send out a requirement for judges to notify the prosecution in advance so that the child can be told what is going to happen in respect of each of those items.

That brings me to my fourth and final point. The most important point for a child is that it should have a supporting adult throughout the trial. If the child is to be placed in a cubicle for a video recording, it is unfair that the child should go in only with a court usher who is a complete stranger and who often wears a rather strange-looking gown.

However, the present guidelines state that in such cases, there should be another adult apart from a court usher only "under exceptional circumstances" and with the permission of the defence. Sadly, with our adversarial system, that permission is unlikely to be granted because, alas, with the declining ethics of the Bar today, the defence is very seldom willing to concede anything to help the child, as that would promote the chances of a conviction.

Surely we should be striking a balance. Surely it is intolerable that a judge should give better treatment to a male adult suspect than to a young child victim. Surely, even within our antiquated legal system, there must be room for judges to make decisions at least a few days in advance and formally notify the prosecution so that the child can be told what to expect and be prepared for it. Is it really right that children should not know until the day whether they will have an adult with them throughout the trial? Those questions are important and fundamental to British justice.

I end with this thought: there is a great deal of concern in this country today, which is being registered in several cases, one of which is sub judice but which was very widely reported, and another of which involved a child molester who was released on a technicality at the very beginning of a trial. All that concern comes down to the fact that the people are worried that, today, the victim is treated in a grossly inferior manner in comparison with the rights of the suspect. Surely we should be starting to restore the balance in the case of children.

I commend the Government on the progress that they have already made over the past few years and I hope that the points that I have raised will be examined to restore the balance still further.

11.7 pm

Mr. Roger Sims (Chislehurst)

I intervene briefly to commend my hon. Friend the Member for Canterbury (Mr. Brazier) on securing this opportunity to ventilate this very important matter, and to express my support for my hon. Friend.

Like the hon. Member for Newcastle-under-Lyme (Mrs. Golding), I was involved in the early stages in efforts to gain acceptance by the courts of video evidence by children. I recall particularly seeing some of the pioneering work carried out in Bexley before the general principle was accepted. I am delighted that my hon. Friend the Member for Canterbury is maintaining a watching brief on the way in which the changes are being implemented.

One of the arguments in favour of allowing video evidence to be shown to the courts was that, when the video was shown privately to a defendant who might be minded to plead guilty, he would change his plea to guilty and avoid the ordeal of the child having to appear before the court.

I am aware that the Home Office has commissioned research into how the legislation is operating, and I wonder whether the Minister can make an assessment of the extent to which the hopes that I have expressed have been fulfilled.

Whatever the situation, the fact is that—alas—there are still many contested cases. A child has been through a terrifying experience at the time of the alleged offence. It is then asked to recount what happened before a video camera, and many months later the child may be asked to appear and relive the incident again, either in court or perhaps in an adjacent room, in an unusual setting with a video camera pointing at him or her. That would be a considerable ordeal for an adult. It is not difficult to imagine how overwhelming or terrifying that must be for a small child.

Judges, barristers and court officials must apply sensitivity and flexibility when dealing with child witnesses, particularly in child abuse cases—for example, in allowing the child's memory to be refreshed on incidents that might have happened some time ago, and asking the child a few informal, friendly questions to ease the tension before starting cross-examination. Of course the defendant is entitled to a fair trial and justice must be done, but that principle applies as much to the child witness as it does to the defendant.

11.10 pm
The Minister of State, Home Office (Mr. David Maclean)

I am grateful to my hon. Friend the Member for Canterbury (Mr. Brazier) for bringing this important issue before the House. He has been a forceful campaigner for child witnesses in cases of child abuse for some years. I am grateful also for the speech of my hon. Friend the Member for Chislehurst (Mr. Sims) and for the intervention of my hon. Friend the Member for Stratford-on-Avon (Mr. Howarth). Indeed, when the Criminal Justice and Public Order Bill was being considered in Committee, my hon. Friend the Member for Basildon (Mr. Amess) was lobbying me hard on this point, as was my hon. Friend the Member for Gravesham (Mr. Arnold). Several amendments were successfully moved by my hon. Friend the Member for Brecon and Radnor (Mr. Evans), so he and others should take some of the credit for the changes that have been made in recent years.

I cannot underestimate the importance of having the right laws and procedures in place to ensure that the perpetrators of child abuse can be brought to justice. Child abusers can be convicted and punished only if it is possible for the children who have been their victims to give evidence effectively.

Until a few years ago, child witnesses seemed almost to be misfits in a criminal justice system which was designed by adults, for adults. They were even presumed to be incompetent as witnesses. But, as my hon. Friend the Member for Canterbury will know, the Government have done much to bring about change, to remove the old and outdated prejudices against children as witnesses, and to adapt the system to accommodate the needs of children, particularly those who have suffered a traumatic experience.

The Criminal Justice Act 1988 abolished the presumption that children were incompetent as witnesses. It also introduced the system which allows children to give their evidence at court by means of a closed-circuit television link. Building on that, the Criminal Justice Act 1991 extended the closed-circuit television link provisions, forbade the cross-examination of the child directly by the accused, and provided for a video-recorded interview with the child, conducted by police or social workers soon after the incident, to serve as the child's evidence-in-chief at the trial. The Act also provided for committal proceedings to be bypassed in cases involving children.

My hon. Friend was kind enough to acknowledge those reforms in his previous Adjournment debate on this subject nearly three years ago. Since then the Government have produced an important set of guidelines, the 1992 memorandum of good practice, for those involved in preparing for and making the video-recorded interview with child witnesses which may then serve as their evidence at trial. I believe that the memorandum has performed a useful function in enabling the police and social workers to interview a child soon after the alleged offence, and to do so in a way which increases the chances of the video being declared admissible in court.

We have also made legislative improvements to the provisions in the 1991 Act. The Criminal Justice and Public Order Act 1994 cleared up any remaining doubts about the abolition of the competence test for children by requiring judges to admit their testimony, unless the child is incapable of giving intelligible testimony. It is only fair to pay tribute to my hon. Friend the Member for Brecon and Radnor for being instrumental in having that amendment accepted.

We also accepted an amendment in another place during the passage of the Bill to enable the prosecution to examine the child witness on any matter not adequately dealt with in the video recording. That ensures that the prosecution is able to bring what may be important and relevant points to the attention of the court when an issue is mentioned but not fully explored in the video recording. Also in the Act, we abolished the requirement that the jury in sexual offence cases must be warned of the danger of convicting on the uncorroborated evidence of the complainant.

I believe that this level of activity and response to the needs of children demonstrates the Government's commitment to making it easier for them to give evidence in court. But we are always open-minded about possible legislative and administrative improvements which can be made, and we are prepared to consider any proposals which will help to ensure that the current provisions can be made to operate to maximum effect.

At present, we are not convinced that it would be right to make further radical structural changes to the system for taking children's evidence, but I do not rule these out, if, in the light of experience, they seem to be justified.

Mr. Brazier

I am most grateful to my hon. Friend for giving way. The National Society for the Prevention of Cruelty to Children asked me specifically to thank my hon. Friend for the very flexible and positive approach which he has brought to his office in building on moves which were already in train. However, I suggest that almost all the points that I listed in my speech come back to the need for judges to change their attitudes and to change the way in which they run their courts—and, of course, training and a memorandum from the Lord Chancellor are part of the solution. But we have identified very little that needs changing in the law—we need to change the climate in which judges operate.

Mr. Maclean

I am grateful to my hon. Friend for pointing out that he thinks that the law is adequate. Some people would disagree and would like to see legal changes. At present, I do not think that it would be wise to make substantial legal changes. We need some experience of how the current system is working and we need to receive the results of research in this area. Nevertheless, I take on board my hon. Friend's point: I think that the Lord Chancellor is very much aware of the need for training and sensitivity in dealing with those cases.

It was clear when the provisions allowing the video-recorded testimony of children to be submitted as their evidence-in-chief were introduced through the 1991 Act that it would be necessary to keep a close eye on how the provisions were working in practice. Accordingly, we commissioned a major independent research project by Professor Graham Davies of Leicester university into the effectiveness of the current provisions, and I can tell the hon. Member for Chislehurst that we hope to receive the results very shortly.

The research team aimed to obtain the views of a number of practitioners—police and social workers, barristers and judges—on the provisions of the 1991 Act at an early stage in its implementation, and also after they had had more experience of its operation. They have also been studying a number of video-recorded interviews and tracing their progress through the criminal justice system.

We shall be considering the findings of the project very carefully in deciding what further changes need to be made. If we had rushed into changes without commissioning the research or when the research was halfway through, we would rightly be subject to severe criticism if the research came to conclusions contrary to the hasty ones that we had arrived at.

I may be criticised and accused—unfairly—of wishing to hang people before giving them a fair trial, but I hope that my hon. Friend will accept that even I agree that we must consider the balance between the interests of the child and the interests of justice. In an ideal world, the two would be one and the same. In the past, the stress of criminal proceedings for children has resulted in cases being abandoned—or not even begun—because the child's evidence was not heard.

Mr. A. J. Beith (Berwick-upon-Tweed)

Will the hon. Gentleman give way?

Mr. Maclean

I want to cover the subject and crack on.

Too often the interests of justice have been frustrated, and the child further harmed, because it has not been possible for the child to cope with the full court process. But children have a right to justice, and their evidence is essential if society is to protect their interests and deal effectively with those who would harm them. Putting the child's interests first is our priority—but not to the extent of removing the defendant's right to a fair trial and to have the case against him properly tested.

Getting the balance right will always be a difficult and delicate task. Many people will be convinced that in individual cases the balance is not right—if they were the judge and the jury. Nevertheless, I hope that my hon. Friend will agree that the Government have been able to improve the lot of child witnesses since his previous Adjournment debate and that we remain open to the possibility of further changes, where they can be justified.

I turn now to the points that my hon. Friend raised tonight. As he pointed out, there is some evidence that it is taking too long for child abuse cases to reach court. The criminal justice agencies are well aware of the adverse effect on the child of any unnecessary delay in bringing the ordeal to an end, and considerable efforts are being made to ensure that that delay is kept to an absolute minimum.

In the Crown court, cases involving child witnesses are given high priority for hearing dates. Guidelines have been issued to listing officers, recommending that such cases be given a fixed date for trial, to ensure that expert and other witnesses have sufficient notice to make themselves available and so reduce the risk of late changes to the hearing dates. They also recommend that cases involving child witnesses should be given the earliest available date and that trial dates in such cases must be changed only in exceptional circumstances.

Child liaison officers are also charged with ensuring, as far as it is within the ability of the court to do so, that there is no unnecessary delay in bringing the cases to trial. Again, we are helping to fund research into the main reasons for delay.

The Crown Prosecution Service recently issued guidance about cases involving child witnesses, which reminds prosecutors to use the procedures that are in force to help expedite cases involving child witnesses through the court and provides practical guidance about how those procedures can be used.

The Home Office-chaired steering group on child evidence has been looking into the issue and each of the agencies involved in the process has looked both at how delays arise at present and how the process can be streamlined in future. There are a number of positive initiatives in different parts of the country, including some fast tracking projects.

So we are tackling the problem of delays in a number of ways, but like my hon. Friend I hope that further improvements can be made to speed up the process of bringing child abuse cases to court.

My hon. Friend raised the issue of therapy for children who have been abused. When a child receives certain types of counselling and therapy, the defence is liable to allege that the child has been coached, thus undermining the weight of his or her evidence. There is no absolute ban on children receiving therapy while investigations are taking place, but it is important that therapists operate within certain guidelines, so as not to prejudice a fair trial.

The Crown Prosecution Service has set up a seminar group to consider that issue. The group brings together legal practitioners and clinical experts. They are working on proposed guidance for therapists involved in treating child witnesses before trial. I very much hope that that guidance will make it easier for children who need therapy to receive it before trial, without in any way tainting their evidence in the eyes of the court.

My hon. Friend referred to judicial training and the need for training for the judiciary on conduct towards children in court. That is a matter for my right hon. and learned Friend the Lord Chancellor, but I can tell my hon. Friend and the House that the training of judges includes lectures on child evidence, child abuse and rape. Sessions have also been held on techniques for interviewing children.

The subject of judicial training is also on the agenda for the next meeting of the Home Office-chaired steering group on child evidence, when it hopes to discuss the issue with a representative of the Judicial Studies Board.

My hon. Friend also referred to the number of important decisions made at the last minute by the judge, such as whether to allow evidence to be given by a video link. I hope that the introduction of plea and direction hearings—in stages from the new year—in cases committed or transferred to the Crown court will make a significant difference to the problem.

At the plea and direction hearing, ail parties will be required to identify whether any witnesses need special attention, including child witnesses. The judge can then ensure that all the necessary steps, including applications for the use of video-recorded evidence, television links or screens, have been taken in good time. That should reduce the number of cases in which a decision about granting such an application is delayed.

My hon. Friend referred to guidelines preventing an adult from being present in the room when a child is giving evidence by closed circuit television link. Under the Crown court rules, the child witness shall be accompanied by a person acceptable to a judge of the Crown Court, and unless the judge otherwise directs, by no other person". The prescribed form for making applications includes a section in which the applicant may propose a named individual to accompany the witness, and give his or her reasons for doing so, for the judge to consider.

In October 1991, the deputy chief justice, Lord Justice Watkins, gave a direction that a court usher would be the most appropriate person to accompany a child witness. That person would fulfil a number of important functions—ensuring that the equipment is used properly in the first place, alerting the judge to any needs that the child might have, preventing unauthorised access to the room, and ensuring that the child is not prompted in any way when giving evidence. The court usher has the independence that a child's relative or friend might not have and would be sufficiently knowledgeable about the procedures and equipment to be able to discharge the responsibility completely.

However, nothing would preclude an independent adult from accompanying the child, as long as the person was named on the application form. Of course, the final decision on who accompanies the child in the witness room is for the judge who considers the application.

My hon. Friend referred to the issue of cross-examination before trial. While the 1991 Act provided for children to give their evidence-in-chief in a video-recorded interview, it is still possible for a child to be cross-examined during the trial.

Quite often there will be a considerable delay between the giving of evidence on video and cross-examination upon that evidence. This could be seen to prolong the trauma for the child, and also to create an opportunity for defence counsel to exploit inconsistencies between the video recording and the answers to questions given on cross-examination. Being cross-examined can be a harrowing experience for adults, let alone children who have suffered abuse.

That underlies the suggestion that both the examination-in-chief and cross-examination of children should take place before trial. This could be done in a number of ways. One possibility, which was debated in the House as a proposed amendment to the Criminal Justice and Public Order Act 1994, would be to allow the evidence of children to be taken "on commission". The court could appoint an independent commissioner who would oversee the questioning of the child by both the prosecution and defence counsel, and that would be recorded on video.

A similar system has just begun to operate in Scotland. My hon. Friend may detect—

The motion having been made after Ten o'clock, and the debate having continued for half an hour, MR. DEPUTY SPEAKER adjourned the House without Question put, pursuant to the Standing Order.

Adjourned accordingly at twenty-six minutes past Eleven o'clock.