THE CHILDREN'S LAW CENTRE

The Children's Law Centre was established in September 1997 and is a charitable organisation. We help children, young people parents and professionals work with and understand the laws relating to children .We are working to promote policies and legislation which recognise the rights of the child and young person under international and domestic law.

OVERALL PRINCIPLES

The Children's Law Centre is founded on the principles enshrined in The UN Convention On The Rights Of The Child and we would wish to see the following principles in particular being applied to policy and legislative decisions relating to children in all areas of the law:

Article 2 Children shall not be discriminated against and shall have equal access to protection .

Article 3 All decisions taken which affect children's lives should be taken in the child's best interest.

Article 12 Children have the right to have their voices heard in all matters concerning them.

INVESTIGATIVE & PRE TRIAL MEASURES

SPEAKING UP FOR JUSTICE

RE RECOMMENDATION 22

This recommends the use of an appropriate adult during the initial interview with a vulnerable witness. It is not clear whether the use of an appropriate adult is envisaged for the interview of child witnesses.

Under The Memorandum Of Good Practice it is stated

"The presence of other people {during interview} may distract or put pressure on the child. The court when considering the recording may wish to be assured that the witness was not prompted or discouraged during the interview and to provide a comprehensive record of the words and gestures of more than 2 persons can be technically demanding.

However, such considerations may be outweighed by the benefit of having a supportive accompanying adult available to comfort and reassure a very young or distressed child, particularly if the child requests it. In such cases the accompanying adult will need to be clear that he/she must take no part in the interview."

The memorandum envisages such a person to be similar to the appropriate adult under the PACE Code Of Practice. The Speaking Up for Justice recommendation however refers to a supporter rather than to an appropriate adult.

COMMENTS

Given the difficulties which have arisen in relation to the remit and usefulness of appropriate adults* it is important that the constitution of appropriate independent support is clearly defined and clear boundaries defined to prevent the contamination of evidence. We would support the development in N Ireland of the Child Witness Supporter and the Young Witness Pack as a way forward in line with the developments in England & Scotland.

RESEARCH

We are aware that research is presently being carried out by the Centre of Child Care Research commissioned by the Inter Agency Group on Child Witnesses entitled Evaluation Of Inter Agency Co Operation in Achieving Admissible Video Recorded Evidence by Children through Live Link television or in Open Court after the implementation Of The Children Evidence (NI) Order, 1995. This research will assess the effectiveness of the implementation of the Order with a particular emphasis on inter agency co operation and will assess the child's experience in court especially in relation to the pace of the process and the sensitivity to the needs of the child.

We would suggest that there is a need for further research in terms of the following:

1.   Identifying the needs of child witnesses.

2.   Clarifying & proposing mechanisms for improving current practice.

3.   Development of pilot initiatives particularly in relation to the use of child witness supporters.

4.   Development of information packs similar to the Young Witness Pack in England.

5.   Ascertaining the number of prosecutions which have been sustained on the basis of video evidence in N Ireland.

6.   Ascertaining the number of prosecutions which have been dropped which are based on video evidence and the reasons why.

7.   Ascertaining the average length of time it takes for a case to come to hearing after the making of the original video.

8.   Ascertaining the views of all those involved in the process of making video evidence as to whether it is presently effective and in the best interests of the child particularly in light of the absence under current provision in N. Ireland for videoed cross examination.

9.   Ascertaining the views of children involved in these procedures as to whether the use for example of a child witness supporter would be helpful.

The above type of research was carried out in Scotland under the auspices of The Working Group on The Support of Child Witnesses in Child Protection & Criminal Proceedings.

In England The Child Witness Pack was launched in 1993 & revised to The Young Witness Pack in 1998 and is accompanied by the appropriate guidance in the form of the handbook "Preparing Witnesses For Court."

More comprehensive programmes in the UK equip the children with communication skills to cope with cross examination and provide advice to the child & parent about simple stress reduction and relaxation techniques.*

It is important that the child witness supporter scheme is developed in N. Ireland for all categories of child witnesses who could benefit from support & guidance. The outcome of research specific to N Ireland will determine the shortfall in children's needs. The role of the supporter however should be clearly defined especially in relation to accompanying the child while giving evidence through live link and the supporter should be trained in relation to the potential of contamination of the child's evidence.

AGE OF WITNESS

Under The UN Convention On the Rights Of The Child a child is recognized as a person under 18 and rights are applicable accordingly. Although the age of under 18 was considered for the new Criminal Justice Children Order, 1998 it was disappointingly not enacted.

Therefore, whilst we support Recommendation 8.1 and 8.3 which recommend a uniform age limit of under 17 yrs this is with the proviso that in order to conform with international law and to be in keeping with the age limit under The Children NI Order, 1995 the age limit should preferably be under 18.

In terms of the overall networking of provision and help for children it is our belief that the under 18 age limit should apply consistently throughout legislative & policy decisions concerning children to prevent anomaly and confusion.

CONCEPT OF CONSULTATION

As referred to at the outset of these comments one of the main rights for children and young people enshrined in the UN Convention is the right of a child to be consulted and to express views throughout the decision making process.

There is a brief mention of taking into account the views of children at Recommendation 10 Speaking Up For Justice{as recommended in the CPS Inspectorates Report on child witnesses} but our view is that consultation about decisions as well as explanation is essential depending on the child's age understanding and emotional circumstances.

It is our opinion that the obligation to facilitate children in giving their views about the method of giving evidence, about court room surroundings or about the set up of an initial interview should be incorporated into any legislative change.

COURT MEASURES

We support the recommendations that all measures should be made available for child witnesses in Chapter 8.

Clear guidance however is required to give effect to the Recommendation at 8.1 that as a general principle child witnesses should automatically have measures made available to them on the same basis as vulnerable adult witnesses but that some measures should be made more readily available to children because of their particular vulnerability. It is unclear how this particular recommendation will be implemented.

In terms of child witnesses there already is provision in N Ireland under The Children's Evidence (NI) Order, 1995 for children's evidence through television link or video recording and the research being carried out by The Centre For Childcare Research should provide useful data in this regard.

In terms of the proposal for video recording of cross examination this would enable young children to give all their evidence away from court and also to prevent repeat hearings if the case is appealed (as pointed out by the Working Group On Child Witnesses in England) but this would have to be in conjunction with the recommendation at RECOMMENDATION 43 Speaking up For Justice that a practice direction be issued about the manner of cross examination by counsel.

We support the measures recommended at Recommendation 70

There are a number of other recommendations in the Speaking Up For Justice Report, which are particularly relevant to child witnesses which have not been mentioned in the section for child witnesses in the report.

1.    RECOMMENDATION 28

PRE TRIAL THERAPY

It is essential that guidelines are developed to address this issue particularly for children who may require counselling as a result of their experiences. The principle of best interests of the child and the paramouncy principle should apply when assessing whether the child needs pre trial therapy but obviously procedures need to be developed to evaluate the effect of this on the admissibility of the evidence.

2.    RECOMMENDATION 29

Recommends that the Home Office develops further material to assist vulnerable witnesses.

We would support the introduction of a revised edition of the Youth Witness Pack for N. Ireland.

3.    RECOMMENDATION 31

APPOINTMENT OF A LIAISON OFFICER

This would be of benefit to child witnesses in terms of showing the child the court layout in advance of hearing and also regarding transfer of information to the Judge about particular requirements/needs/background of the young witness so that the judge is well informed about their circumstances.

SCREENS & CHILD WITNESS SUPPORTER

We support the use of screens on a statutory basis and also with Recommendation 37 that a child witness should have the right to be accompanied by a child witness supporter when giving live evidence via TV Link.

4.   RECOMMENDATION 49 STATUTORY POWER OF REMOVAL OF WIGS & GOWNS

Children's views should be ascertained as to their own preference. It is accepted that the solemnity of the court environment is a daunting prospect for children but individual children may have their own views on how they wish to be treated particularly older children and young people.

Finally it is important that existing joint protocols are developed to give specific guidance to police social services and the DPP as to

 COMPETENCY

The Criminal Justice Children NI Order has only just been enacted in N Ireland and is awaiting a commencement date. This clearly states at Article 20 that the evidence of a child under 14 shall be given unsworn and that the child's evidence shall be received unless it appears to the court that the child is incapable of giving intelligible testimony.

As stated in Speaking Up for Justice this would appear to retain the competency examination by the judge and as pointed out by Sanders evidence being excluded on this ground can depend as much on the questioner's ability to ask the right questions as in the witness's ability to answer.*

Is it proposed that changes be made in relation to competency even though provisions have so recently been enacted?

If this is the case we favour the third option which allows the judge or jury to make up their own minds about the weight to attach to children's evidence. Again however there is a proviso mentioned in the Speaking Up For Justice documentation at 11.26 that this option would be an option unless incoherency was such that it rendered the witnesses' evidence without appropriate aid wholly unintelligible. This would require clarification.

USE OF INTERMEDIARY OR COMMUNICATOR

Recommendation 47 relates to the use of an intermediary or communicator, which is based on a model in Western Australia. This could be very useful in assisting a young child in getting their evidence across to the court and in understanding language used in court proceedings and would undoubtedly be helpful if the third option in relation to competency was to be enacted. We are of the opinion that this is a measure, which could potentially facilitate the child's meaningful involvement in proceedings.