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The Child as a Victim in Court
The discussion on the Child as a Victim in Court, chaired by Lord Robert Reed, was facilitated by excellent papers written by Philippe Chaillou, President de chambre de la Court d’Appel in Paris, Francoise Baissus, Juge des enfants au Tribunal de Grand Instance de Castres, District Judge David Simpson of West London Magistrates Court and Lord Philip Brodie of the Scottish Court of Session. However, as is so often the case at Colloques, there were many more issues which could have been explored in discussion than time allowed.
Despite our different backgrounds, our various jurisdictions, and the inevitable contrasts between legal systems based upon the common law and a civil code, the way in which British, Irish and French courts assist vulnerable witnesses is remarkably similar – for example the use of audio-video recording of children’s evidence. This is hardly surprising given the similarities between our countries. We all live in modern European societies enjoying relative wealth. The historical development of our societies is not so very different and we all enjoy the benefits (some might say challenges) of significant immigration over the last half century. Our criminal courts are all subject to the European Convention for the Protection of Human Rights, and in particular Article 6. Although it is possible to exaggerate its effect, it is always behind us, over our shoulders, perhaps as a guiding angel, whose role is often limited simply to telling us that we are already travelling in the right direction. British and Irish judges would say that the common law has always guaranteed a right to a fair trial. Similarly French judges would say that the Code Penal has likewise always guaranteed a fair trial.
The key balance that we have to strike is to ensure that the evidence of vulnerable witnesses is heard to the best extent possible, while preserving defendants’ rights to challenge evidence and ensure a fair trial. In many cases this is achieved by Scottish Children’s Hearings, English and Welsh Youth Courts and the French juges des enfants. However precise comparisons were difficult – partly because of the relatively short time available for discussion and partly because of the differences between the Anglo-Saxon and Gallic styles in writing papers for the Colloque. As is often the case, the British papers were practical, describing procedural steps in some detail, with less of the philosophy behind the legislative approach. The French papers were more philosophical, taking a broad but illuminating approach, without going into the same intricate procedural detail which seems to enthuse the British.
Both Philippe Chaillou and Francoise Baissus stressed the role of the juge des enfants who has the dual role of handling criminal acts committed by under 18 year olds and protecting children who have been mistreated or sexually abused. Philippe Chaillou talked about child victims’ evidence in criminal trials, and, in particular, the role of the juge d’instruction. He mentioned that the child’s deposition may be conducted in the presence of either a psychologist or physician specialised in childhood or a member of the family. The role of intermediaries in obtaining evidence from children is something which could have been explored fruitfully in discussion if time had allowed. He stressed the need for sensitivity among judges presiding over trials involving child witnesses and the importance of specialisation. Francoise Baissus described the work of the juge des enfants and stressed the importance of co-operation with other agencies and judges.
David Simpson’s paper concentrated on special measures contained in the Youth Justice and Criminal Evidence Act 1999. The procedures contained in the Act are intended to provide a mechanism whereby child witnesses, who might otherwise be upset, intimidated or traumatised by appearing in court, are not inhibited from giving a full and proper account of events. He described practical measures such as the use of screens, the recording by video of evidence and cross examination by live tv links. Such special measures can be ordered where they are likely to “improve the quality of evidence given by the witness" (section 19(2)(a)). He summarised research carried out by the National Society for the Prevention of Cruelty to Children, In their own words (2004).
Lord Philip Brodie described the traditional Scottish trial procedure, in which the judge is largely an observer, before analysing the provisions for special measures contained in the Vulnerable Witnesses ( Scotland ) Act 2004. They are similar to the provisions in force south of the border.
One contrast between British and French procedures was raised by Sheriff Noel McPartlin of
Edinburgh Sheriff Court. He described a confrontation between a young rape victim and her alleged rapist as part of the pre-trial criminal process which he had witnessed during a stage in France . Such a confrontation is inconceivable in UK, although in the USA , the Sixth Amendment gives defendants the right to confront their alleged victims. The theory is that in such circumstances “the victim” is more likely to tell the truth, although inroads to that right have been made by cases such as Coy v Iowa (1998) 487 US 1012 and Maryland v Craig (1990) 497 US 836. It was pointed out that ECHR Art 6.3(d) does not guarantee a face to face confrontation and Philippe Chaillou said that such confrontations do not always take place in France .
One aspect which I raised was the position of very young defendants charged with serious crimes. Many young people charged with such crimes are themselves vulnerable, perhaps with educational difficulties, poor language, literary and comprehension skills and difficulties in concentrating. Francoise Baissous said that all young defendants have deep educational difficulties. Philippe Chaillou pointed out that 28% of French detainees were themselves victims of childhood abuse. In an earlier session Nial Fennelly, a judge of the Irish Supreme Court, used the phrase “troubled youths” who are “disturbed yet dangerous, vulnerable yet street wise” and who lack the support of their parents. The bravado of such defendants may conceal their weaknesses. Although vulnerable, they may have a complete disregard for the court process - for example in a trial following a gang fight where defendants are determined to lie to conceal their own (and their peers’) involvement. In Britain , although most young defendants appear in the more informal surroundings of youth courts, or Scottish children’s hearings, in serious cases they may appear in the Crown Court or the
Sheriff Court. For example a young person may be charged jointly with an adult. If each denies responsibility, blaming the other (a “cut throat defence”), the evidence is likely to be so inter-linked that it would not be appropriate to sever the indictment and allow the young person to be tried separately in a youth court. Alternatively, offences may be of such a serious nature that young defendants have to be tried in an adult court – e.g. a large, but emotionally and educationally immature, thirteen year old boy charged with rape or other serious sexual abuse of a younger child. It is perhaps also relevant to note that between 1992 and 2003, 223 youths aged 10 to 17 were convicted of murder in England and Wales (The Times, 2 June 2005).
Article 40 of the New York Convention on the Rights of the Child provides that children
- are innocent until proved guilty;
- should have a fair hearing;
- should not to be compelled to give testimony;
- are entitled to examine adverse witnesses;
- should have the assistance of an interpreter; and
- should have privacy.
However, the difficulties of trying young defendants in England were shown up by the Thompson and Venables case in which two ten year olds abducted and killed a two year old. They underwent a three week trial in a Crown Court. There was huge publicity and public outrage, manifested by violent demonstrations. They sat in a raised dock. The European Court of Human Rights accepted that for most of the time they were not able to take part in the trial due to the nature of the trial procedure and their limited attention span. Psychologists produced evidence that the “process of justice” had an adverse psychological effect on the two defendants to such an extent that they suffered post-traumatic stress disorder. The
European Courtfound that the defendants were unable to participate effectively in the criminal proceedings against them and were, in consequence, denied a fair hearing in breach of Article 6 (T v The United Kingdom, Application no. 24724/94, 16 December 1999). (In a concurring opinion in the Commission’s Report, Sir Nicholas Bratza, stated that the trial had been more frightening, intimidating and distressing experience than for an adult. He wrote “I have grave doubts whether, whatever special procedures are devised, the mere fact of subjecting a child to a public trial in an adult court is consistent with the effective participation of the child in the trial process.”)
As a result of the ECtHR’s decision, on 16 February 2000, Lord Bingham of Cornhill, the Lord Chief Justice, introduced the Crown Court (Trial of Children and Young Persons) Practice Direction [2001] 1 Cr. App. R. 484 which applies to all trials of children and young persons in the Crown Court. It recognises that some young defendants may be very young and immature when standing trial. It provides that the trial process should not itself expose young defendants to avoidable intimidation, humiliation or distress. All possible steps should be taken to assist young defendants to understand and participate in the proceedings. The ordinary trial process should, so far as necessary, be adapted to meet those needs. It may be appropriate for young defendants to visit, out of court hours and before the trial, the courtroom in which the trial is to be held so that they can familiarise themselves with it. Where a case has attracted widespread public or media interest, the assistance of the police should be enlisted to try to ensure that young defendants are not exposed to intimidation, vilification or abuse. The trial, if practicable, should be held in a courtroom in which all participants are on the same or almost the same level. Young defendants should be free to sit with members of their family and in a place which permits easy, informal communication with their legal representatives. Courts should explain the course of the proceedings in terms that they can understand. They should ensure, so far as is practicable, that the trial is conducted in language which young defendants can understand and according to a time table which takes full account of their inability to concentrate for long periods. Frequent and regular breaks are often appropriate. Robes and wigs should not be worn unless young defendants ask that they should or the court for good reason orders that they should.
In Scotland, the Vulnerable Witnesses ( Scotland ) Act 2004 provides that statutory special measures apply to defendants. In England and Wales however the special measures contained in the Youth Justice and Criminal Evidence Act 1999 do not apply to young defendants. This has been criticised by Professor Di Birch and Dilyz Tausz who say that the accused is “the only witness to be specifically written out of the 1999 legislation” ([2001] Crim LR 473).
It would have been interesting and illuminating to discuss how French courts would conduct a prosecution of defendants such as Thompson and Venables. Regrettably, the absence of time and a very memorable lunch did not allow us to do so in formal session. However, such discussions continued informally over lunch and long into the afternoon.
HHJ Nic Madge, Harrow
24 June 2005
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