North East Conference on Sexual Violence 22 November 2010

1. North East Conference on Sexual Violence22 November 2010 The protection of children against sexual abuse and sexual exploitation: Exploring the UK’s ‘justice gap’ m.ohara@ salford.ac.uk

2. Council of Europe ConventionArticle 18(1) Each Party shall take the necessary legislative or other measures to ensure that the following intentional conduct is Criminalised: a) engaging in sexual activities with a child who, according to the relevant provisions of national law, has not reached the legal age for sexual activities; b) engaging in sexual activities with a child where: - use is made of coercion, force or threats; or - abuse is made of a recognised position of trust, authority or influence over the child, including within the family; or - abuse is made of a particularly vulnerable situation of the child, notably because of a mental or physical disability or situation of dependence.

3. Council of Europe Convention Article 30 1. Each Party shall take the necessary legislative or other measures to ensure that investigations and criminal proceedings are carried out in the best interests and respecting the rights of the child. 2. Each Party shall adopt a protective approach towards victims, ensuring that the investigations and criminal proceedings do not aggravate the trauma experienced by the child and that the criminal justice response is followed by assistance, where appropriate.

4. Cawson et al (2000) – Prevalence study • Cawson et al obtained responses from 1, 979 (69%) of 2,869 18-24 year olds who were asked about whether they had experienced specific sexual acts before the age of 16 • Researchers defined the experience as abuse where: • The respondents had not consented • The respondents were aged 12 or younger at the time of the experience, and the other person had been more than 5 years older (Cawson et al, Child Maltreatment in the United Kingdom: a Study of the Prevalence of Abuse and Neglect (NSPCC, London 2000))

5. Cawson et al –Summary of findings • 376 (19%) of the respondents had experienced sexual abuse as defined by the researchers Of this group: • 5.3% had been abused by parents/carers • 15.8% had been abused by other relatives • 57.9% had been abused by other known people • 21% had been abused by strangers

6. Estimated conviction rates: October 2006 - March 2008

7. Competency requirement –R v Wallwork (1958) 42 Cr App R 153 Lord Goddard CJ: ‘’The court deprecates the calling of a child of this age as a witness…the jury could not attach any value to the evidence of a child of five: it is ridiculous to suppose that they could. There must be corroborative evidence if a child of tender years and too young to understand the nature of an oath is called, but in any circumstances to call a little child of the age of five seems to us to be most undesirable, and I hope it will not occur again.’’

8. Example of a corroboration warning ‘’It is well known that women in particular and small boys are liable to be untruthful and to invent stories.’’ (Sutcliffe J, 1976, Old Bailey trial, cited in Temkin, Rape and the Legal Process (OUP 2002) p.257)

9. Legal and policy reforms • S. 34 Criminal Justice Act 1988 – repealed requirement re corroboration of unsworn evidence of children • S. 54 Criminal Justice Act 1991 – allowed video-taped evidence-in-chief to replace live evidence-in-chief • S. 32 Criminal Justice and Public Order Act 1994 – removed requirement for corroboration warning re evidence of complainants at sexual offence trials • Youth Justice and Criminal Evidence Act 1999 (YJCEA) - introduced a range of special measures for child witnesses • 2002 – publication of Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Using Special Measures (ABE)

10. Current position re competence of witnesses • S.53 YJCEA - everyone is competent in principle, whatever their age • S. 54(3) YJCEA – in considering the question of competence, the court must bear in mind the special measures available under the Act

11. R v Barker [2010] EWCA Crim 4 ‘’The question in each case is whether the individual witness, or, as in this case, the individual child, is competent to give evidence in the particular trial. The question is entirely witness or child specific. There are no presumptions or preconceptions. The witness need not understand the special importance that the truth should be told in court, and the witness need not understand every single question or give a readily understood answer to every question. Many competent adult witnesses would fail such a competency test. Dealing with it broadly and fairly, provided the witness can understand the questions put to him and can also provide understandable answers, he or she is competent.’’

12. Section 41 YJCEA –Restrictions on sexual history evidence • S. 41(1) - defendants charged with sexual offences cannot introduce evidence or questions about the complainant’s sexual history except with leave of the court • Court may give leave only if it is satisfied that: • The evidence or questions are directly relevant to the defendant’s case (s. 41(3)), or • The evidence or questions are necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused (s. 41(5))

13. Influence of sexual history and reputation - Kelly et al (2006) ‘’Questions of sexual history and reputation reinforce bias and stereotypes, which in turn not only temper the urgency to investigate thoroughly, but also have a bearing on decisions about whether to proceed with a case…Interviews with police officers and CPS staff…confirmed that what are now commonplace behaviours - being drunk, having sexual experiences before the age of 16 (consensual and non-consensual), and having multiple partners as an adult – were seen to undermine a complaint of rape. These perceptions are, at worst, a form of prejudice or, at best, legacies of centuries of discriminatory requirements in rape law.’’ (Emphasis added) (Kelly et al, Section 41: An evaluation of new legislation limiting sexual history evidence in rape trials, Home Office Online Report, 2006)

14. Cross-examination – Facts v impressions ‘’My tactics are to be agreeable, not to be aggressive, to be reasonable, to ask the sort of questions in the sort of way that a juror might wish to ask them. You’ll put your chap’s facts and obviously controvert her facts. They’re less important than undermining her personality. It sounds sinister but that’s what you’re trying to do, make her sound and appear less credible.’’ (Barrister cited in J. Temkin, ‘Prosecuting and Defending Rape: Perspectives from the Bar’, Journal of Law and Society, Vol. 27, No. 2, June 2000)

15. Cross-examination strategies Q: You know quite a bit about sex, don’t you? A: I know a bit, but not that much. Q: Do you talk to your brother about sex ever? A: No. I don’t see him a lot now because he has moved out. Q: What about before he moved out? A: No. Q: All right. When your brother was in the park or anywhere like that, did you ever talk to him about anything that was sexy? A: No. (8-year-old girl) (Cited in H. Westcott and M. Page, ‘Cross-Examination, Sexual Abuse and Child Witness Identity’, Child Abuse Review, Vol.11 2002)

16. Cross-examination strategies - continued Q: Let me ask you this. Over the last couple of years would this be fair? You and your sister have been a bit out of control. Would that be a fair thing to say? A: What do you mean? Q: I will tell you what I mean. I mean you have been staying out quite late, later than your mum would like. Would that be right? A: No. A couple of times. Q: I do not want to get you into any trouble, but have you been smoking a bit? A: Yeah. Q: And your mum does not like that, is that right? A: Yeah, but she knew. Q: And you have been getting drunk a bit, is that correct?

17. Advocates on cross-examination techniques ‘’You want them to sweat a bit…My technique is to…extend the time for cross- examination…you’re deliberately making it as long as possible…Tactically you want to put them under as much pressure as possible. I want them to crack.’’ (Barrister cited in E. Henderson, ‘Mapping the theory of cross-examination in relation to child witnesses’, in H. Westcott and G M Davies, Children’s Testimony: A Handbook of Psychological Research and Forensic Practice, (Wiley, Chichester 2002))

18. Advocates on cross-examination techniques - continued ‘’When I start to cross-examine, I say something like, shall we strike a bargain? If I am wrong, will you tell me? And the child says yes. And if I am right, will you also tell me? And the child says yes. That’s a perfectly straightforward way of telling the child that I am going to put things that the child won’t agree with… If I make a child cry in cross-examination, I have probably failed in the eyes of the jury…I will also have failed in terms of my duty to the child, because I do not believe that cross-examination, doing your job properly, can ignore the effect of questioning on the child.’’ (Nigel Pascoe, QC, cited in A case for balance: Demonstrating good practice when children are witnesses, (NSPCC, London 1997))

19. ABE – judicial protection from inappropriate questioning ‘’The sort of questioning likely to be ruled out is anything that lacks relevance, or is repetitive, oppressive, or intimidating. Questioning may be intimidating because of its content, or because of the tone of voice employed. An advocate may be asked to rephrase a question if it is in a form or manner likely to lead to misunderstanding on the part of the witness. A young witness, or witness with learning disabilities…may easily be confused by questions that contain double negatives (Is it not true that you were not there?), or that ask two questions at the same time (Is it true that you were there and you heard what was said?).

20. ABE guidance on cross-examination ‘’Some legal representatives routinely ask young witnesses ‘Do you tell lies?’, but this is a practice that ought to be avoided unless the legal representative has grounds for thinking that the witness is an habitual liar (other than the fact that the witness’s evidence contradicts that of the defendant).’’

21. Plotnikoff and Woolfson (2009) - Findings re young witnesses’ experiences of defence advocates • 28% (49) said defence advocates were polite • 49% (84) described them as sarcastic, rude, aggressive, or cross • 65% (111) reported 1 or more problems with comprehension • 58% (100) said the defence advocate tried to make them say something they did not mean, or put words in their mouth • 57% (98) said the defence advocate accused them of lying – 70% (69) of these said this happened more than once (J. Plotnikoff & R. Woolfson, Measuring up? Evaluating implementation of Government commitments to young witnesses in criminal proceedings (NSPCC, London 2009))

22. Plotnikoff and Woolfson -Conclusions ‘’…the results illustrate the benefits experienced by young witnesses when…policies are put into practice…Overall, however, findings reveal a significant gap between the vision of policy and the reality of many children’s experiences. The picture therefore remains disappointing, particularly in respect of: • visually recorded statements… • assistance received before trial… • standards of questioning at court… • emotional support for young people while they give evidence…’’