Abstract:
In this series of three articles concerning the expert opinions of a child psychiatrist in a criminal case when children (under 18y) are involved as witnesses, three main aspects will be explored.
The first article relates to the way the courts deal with the live testimony of children, including special measures that the expert may advise.
The second article relates to the psychological and social impact on child witnesses because of their exposure to criminal incidents - in whatever capacity, including their experience of giving their testimony.
The third article looks at the experience of the prosecution’s expert witness during cross-examination - that is intended to undermine the force of their opinions in support of the defendant’s case.
Introduction
The experience of attending court as a witness is anxiety-provoking for everyone. The protocols of the court rituals can be very daunting. It is no surprise that for children this has been shown to be the case, (Plotnikoff J, 2004). Since those proofs have come to the attention of The Ministry of Justice, changes have been introduced to reduce the potential trauma.
Baker (2021) has written at length on the issue of the competence of child witnesses and their reliability - including approaches that are intended to provide the court with expert evidence that is derived from analysis of video-recorded interviews of children as part of a criminal investigation.
Special Measures
It is no surprise that young witnesses in the criminal courts display anxiety prior to testifying. (Hayes, 2011) The unknown is a daunting prospect although measures to reduce anxiety have helped including shielding the child/vulnerable witness from direct contact with the defendant.
Special measures are intended to reduce the stress and anxiety for child witnesses in such an unfamiliar scenario. The application for special measures (Criminal Rules Procedures part 18), should be made as soon as possible after a charge has been brought to the magistrates. A judicial case manager will need to know what measures are being sought and why, how the measures are likely to enable best evidence, and, to hear any views expressed by the child witness and /or those who have responsibility for them.
The Ministry of Justice has issued formal legal guidance citing the type of measures that may be relevant, for instance ensuring that the witness does not see the defendant; using live-link video systems where the witness may be in a different location; removing the customary trappings of wigs and gowns; using an intermediary to assist with communication challenges and the use of pre-recorded interviews and cross-examination of the witness.
An expert may be asked to advise on special measures for a specific witness and it is incumbent on the expert to be conversant with all the possibilities available to the court. The role of the expert was underlined in R v Lumbeba and R v JP (2014) EWCA Crim 2064; it was held that:
‘If there are any doubts as to how to proceed, guidance should be sought from those who have responsibility for looking after a witness and/or an expert.’
NOTE: Up-to-date guidance to deal with children and other vulnerable witnesses to obtain best evidence with least harm is fully published and accessible on the CPS and Ministry of Justice websites.
The author was involved in a complex case in care proceedings concerning two children who had been abused by their father for years since their mother fled from the family. During the assessment, the boy had been very explicit about his suffering and when the question of support while waiting to be called for his evidence was raised, he asked if the author could be that supporter. There was no objection since the care proceedings had concluded.
The children had suffered every form of abuse. The 15-year-old boy had been offered special measures to assist him as his evidence was to be challenged by the defence counsel. In the event the boy declined the offer of a screen as he wanted to see his father as he faced him in open court.
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Vignette 1 – The angry boy wanted to tell “The Whole Truth.”
I was asked to take on the role of victim support for a 15-year-old male, whose father was being tried in London for serious sexual offences against his two children from the ages of 6 and 7 years. This - for me to be his pre-trial supporter - was initiated by the teenager as he had met me during my assessment of him and his sister in connection with care proceedings. His sister was being supported separately by their social worker and on the day that he was due to give evidence, I met him at the court and we remained in a private room until he was called.
While waiting together he said he understood his father was only being tried for the sexual abuse of himself and his sister. He was extremely anxious but was desperate to talk; my role was simply to listen and refrain from commenting.
He spoke with distress of many instances of sadism and cruelty but he was confused that his father was not being prosecuted for stealing the money that the children’s mother used to send them at Christmas and birthdays. He said that the charges against his father were not the worst thing from his point of view and he explained that, in front of his friends, his father would force his mouth open and spit in it. He was very angry with his father for everything and he was desperate for the opportunity to tell the judge all about his father. He said that he wanted to see his father in court and he told me he did not want the screen – he would face him.
When he was called to give evidence, the teenager was angry and he spoke up strongly. He was invited by the prosecuting counsel to tell the Court if there were other things that he remembered. His spontaneous and highly emotive account was compelling. The father was found guilty on all counts.
This case was unusual in the way the author’s role evolved through the expressed needs and wishes of an alleged victim. The late disclosure of his evidence was managed by prosecuting counsel inviting the witness to add to his statement which, up to that point was the original ABE recorded interview.
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In Vignette 2, the focus has been to illustrate the way that special measures were vital in securing a coherent account of the abuses the alleged victim had suffered. There were substantial problems as he needed a very patient approach to help him to explain in sufficient detail what he wanted to say.
The parents did not give evidence but the court heard in mitigation for the mother that she was also cognitively challenged with a low IQ and poor communication skills.
However, the son as a witness was competent and as far as anyone could tell, he was reliable too. The use of intermediaries whose training, experience and skill with this type of vulnerable witness of any age can make a huge difference to assist juries in contested trials to help make sense, while supporting the court’s function without bias.
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Vignette (2) - Finding the words to tell.
A 17year-old teenage boy with severe cognitive impairment (IQ low 50’s) sought refuge with a relative in a very distressed state. He complained of physical and sexual abuse by his father. His mother had told him not to tell anyone or he would be put in a home and punished for telling lies.
His father had made him perform acts which hurt and confused him. If he cried his father beat him. His aunt lived nearby, and he ran to her in fear and desperation.
At interview it was clear that he did not have the language to describe in detail what had happened - he was unable to give specific details. The police interviewer, with the active support of an intermediary, focused on the most recent events. It was necessary to establish the words for parts of the body and what he had been made to do. From time to time, he would go into a frozen reverie as if he were seeing it all happen in his mind. It was then that he would say what his father said during the incidents.
Intimate physical examination revealed historic scarring.
Prosecuting counsel asked for a psychiatric appraisal in respect of his competence to understand questions and to respond appropriately so that his answers could be understood.
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These two cases illustrate some of the issues that can arise for the vulnerable witness/victim. In the first case the boy was so angry with his father. He had waited a long time for the case to be heard and as the time had passed, he had begun to list for himself all the crimes that his father had committed against himself and his sister. While the prosecution considered that the worst of the offences on record were sufficient to bring a serious case to trial, the witness was confused as to the reason why so many of his father’s sins did not count. My role as he began to cite the issues of his grievances was to simply listen. Any other intervention by myself, however tempting, could have led to an accusation that I had groomed and rehearsed the boy which could render his evidence inadmissible.
The second case goes to the opposite extreme. The boy’s motivation in escaping his home had been to obtain protection. He was naïve as to the possible processes and outcomes that might ensue. The transparency of the process of his interviews using video-recordings with skilled intermediary support was crucial to avoid any suggestion that he was being coerced to tell lies against his parents.
The importance of equality of access to justice regardless of status as a person who is very young, or aged and living with limited communication ability has been demonstrated in this case. Elder abuse can present with the same challenges when memory impairment is patchy because of types of dementia. The use of interpreters can also be problematic as cultural concepts may lead to partisan translation which can distort the evidence.
The next part of this series will be published on the 02/08/2021.
Useful References
- R v Lumbeba and R v JP (2014) EWCA crim 2064
- Crown Prosecution Service, 2017, Victims and witnesses. [https://cps.gov.uk Victims and witnesses]
- Crown Prosecution Service, 2020, Special Measures: legal guidance) [https://cps.gov.uk/special measures]
- Ministry of Justice, 2011, Achieving Best Evidence in Criminal Proceedings – Guidance on interviewing victims and witnesses and guidance on using special measures.
- Baker, A, (2021) A Child Psychiatrist’s Expert Roles in the Criminal Court: Children as vulnerable witnesses. BJPsych Advances, Cambridge Univ
- Hayes D, Bunting L, Lazenbatt A, Carr N, & Duffy J. (2011) The Experiences of Young Witnesses in Criminal Proceedings in Northern Ireland. Department of Justice (NI).
- Plotnikoff J and Woolfson R. (2004). In their own words: The experiences of 50 young witnesses in criminal proceedings. London, NSPCC
The Author
Dr Tony Baker qualified in 1974 at Westminster Hospital Medical School. He joined the British Army during his period of clinical studies and on successful completion of his pre-registration probationary years in medicine and surgery, he took up his post as a general duties medical officer in Dusseldorf, W.Germany – where he remained for two-and-a-half years before embarking on a training course in psychiatry. After a year in a British Military Hospital in Germany, he returned to the UK to complete his professional training in psychiatry leading to Membership of the Royal College of Psychiatrists (1980).
He then embarked on a course of higher professional training at Great Ormond Street Children’s Hospital and St George’s Hospital in Tooting. During the early 1980’s he became concerned with the fate of children who are abused, including sexual abuse and exploitation and he developed training for professionals in psychology, psychiatry, social work, police and education. To this end he co-founded a charitable organisation to facilitate interprofessional training and increase awareness in all levels of those with responsibility for children. Dr Baker has conducted research into the prevalence of sexual abuse in the 80’s in the UK and he also worked to develop therapeutic methods in respect of children and their families in the aftermath of disclosure.
The lack of therapeutic availability in the NHS prompted the setting up of a new charity to raise funds to enable post-abuse survivors to access independent therapy, The Emily Appeal Fund, which also offered free training to social workers and children’s care home workers.
In a rich and varied career in NHS practice and in the independent sector, Dr Baker has run a residential addiction detox and group rehab service in parallel with his work with children and families.
He has also developed a practice to provide expert assessment and reports to the Family Courts and to present evidence to a variety of court settings and tribunals including Criminal Courts.
Dr Baker has developed specialist consultancy services for children in care, both with residential homes and with fostering. He has also developed assessment and therapeutic support initiatives for children and young adults with complex developmental issues like ADHD and Autism.