An Assessment of The Admissibility and Sufficiency of Evidence in Child Abuse Cases 1999

AN ASSESSMENT OF THE
ADMISSIBILITY AND SUFFICIENCY

OF EVIDENCE IN
CHILD ABUSE PROSECUTIONS
A report for the Home Office

by the
Department of Law, University of Bristol
Gwynn Davis, Laura Hoyano, Caroline Keenan,
Lee Maitland and Rod Morgan
August 1999
AN ASSESSMENT OF THE ADMISSIBILITY AND
SUFFICIENCY OF EVIDENCE IN CHILD ABUSE
PROSECUTIONS
A report for the Home Of

fice
Research Development and Statistics Dir
ectorate
by Gwynn Davis, Laura Hoyano, Car

oline Keenan,
Lee Maitland and Rod Morgan
Department of Law, University of Bristol
AUGUST 1999
AN ASSESSMENT OF THE ADMISSIBILITY AND SUFFICIENCY OF EVIDENCE IN CHILD ABUSE PROSECUTIONS
Additional copies of this report can be obtained from the Home Office, Information and Publications
Group, Research Development and Statistics Directorate, Room 201, 50 Queen Anne’s Gate, London
SW1H 9AT.
© Crown copyright 1999
First published 1999
ISBN 1 84082 357 7
ii
Acknowledgements
ACKNOWLEDGEMENTS
We would like to thank all those who helped and advised us in the conduct of this project. First we
would like to acknowledge the support given to us by the Research, Development and Statistics
Directorate of the Home Office, particularly by David Brown, Sharon Grace and Robert Street, and by
our Research Advisory Committee. We would also like to express our appreciation for the research
access given to us by senior police officers and by the Crown Prosecution Service (CPS) Branch
Prosecutors in our study areas, as well as for the valuable advice they gave us in the process. We owe
special thanks to Detective Superintendent Steve Livings.
We owe a massive debt to those who assisted us in the conduct of the research and the preparation
of this report, in particular Rachel Riddington for her help in the initial fieldwork, Ann Clarke, our
project secretary, Sara Bladon who typed the draft report, and Pat Hammond who prepared the final
report for publication.
Perhaps most importantly we would like to express our gratitude to all those professionals working
in the field of child protection who gave up many hours of their time to speak to us about their
decision-making in individual child abuse cases and to discuss issues in the prosecution of child
abuse more generally. These included police officers from the Child Protection, CID and uniformed
divisions in two police forces, CPS lawyers and caseworkers in three CPS areas, and members of the
Bar in two centres.
We would also like to thank those CPS staff and members of the judiciary who talked to us about
their experience of child abuse cases in the course of our ‘flying visits’ to other areas; the trainers
and participants at the child abuse investigation and police interviewing skills training courses we
attended; and the child witness co-ordinators and support workers at both Crown Court centres.
We would like to thank the parents, and in some cases children, who gave us permission to watch
video interviews conducted in cases which were not prosecuted.
We also received invaluable advice and information from the following:
• The Australian Law Reform Commission

• Shannon Bellett, Co-ordinator of the Child Witness Service in the Court Service, Ministry of
Justice, Perth, Western Australia
• Gillian Calvert, Director, Office of Children and Young People, The Cabinet Office,
Government of New South Wales
• The Canadian Society for the Investigation of Child Abuse, Calgary, Alberta
• Professor Graham Davies, Department of Psychology, University of Leicester
• Barbara Joel-Esam, Lawyer, Public Policy Department, National Society for the Prevention of
Cruelty to Children
• Fiona Leonard, Parliamentary Counsel Office, Wellington, New Zealand
• John Lindsay, Barrister & Solicitor and Chief of Police, Edmonton Police Service, and the
officers of the child protection and sexual assault teams
• Diane Machin, Senior Research Officer, Criminological Research Branch, Home Department
Central Research Unit of the Scottish Office
iii
• Elisabeth McDonald, New Zealand Law Commission

• National Center for Prosecution of Child Abuse, American Prosecutors Research Institute,
Virginia
• Celia O’Grady, Research and Evaluation Officer, Ministry of Justice, Perth, Western Australia
• Charles Phipps, Attorney, Children’s Law Project, University of South Carolina
• The Hon. Justice Pidgeon, Chair of the Judges’ Committee, Supreme Court of Western
Australia
• Joyce Plotnikoff and Richard Woolfson
• Helen Reeves, OBE, Director, Victim Support UK
• James Scholes, Barrister, Office of the DPP and Assistant Director of Belfast Crown Court;
• The Scottish Law Commission
• Alan J. Tomkins, Associate Professor of Law & Psychology, University of Nebraska-Lincoln;
• Jack Watson QC, Appellate Counsel for the Attorney General of Alberta, and other Crown
Counsel in Alberta Justice, Edmonton
• Dr Victoria Weisz, Research Assistant Professor, Centre on Children, Families and the Law,
University of Nebraska-Lincoln.
iv
Contents
CONTENTS
ACKNOWLEDGEMENTS iii
SUMMARY OF KEY FINDINGS vii
CHAPTER I: INTRODUCTION 1
CHAPTER II: THE LEGAL AND PROCEDURAL FRAMEWORK 5
CHAPTER III: INVESTIGATING AN ALLEGATION 15
CHAPTER IV: THE DECISION TO PROSECUTE 29
CHAPTER V: THE COURT 47
CHAPTER VI: ALTERNATIVE MODELS FOR ELICITING CHILDREN’S TESTIMONY 71
CHAPTER VII: CONCLUSION AND RECOMMENDATIONS 81
APPENDIX A: METHODOLOGY AND SAMPLING 87
APPENDIX B: INVESTIGATION AND PROSECUTION PATHWAYS (CROWN COURT CASES) 91
APPENDIX C: CASE VIGNETTES 93
REFERENCES 103
CASES 109
v
vi
Summary of Key Findings
SUMMARY OF KEY FINDINGS
Introduction
This was a study of the admissibility and sufficiency of evidence in child abuse prosecutions. Our
objectives were:
• to investigate the extent to which cases are not prosecuted because the evidence gathered
during the investigation is deemed insufficient or inadmissible, rather than because of
extraneous considerations such as concerns about the possible detrimental effects of a
prosecution on the child or its family
• to examine the way in which the admissibility and weight of the evidence is evaluated in each
of the three phases of a criminal prosecution: the inter-agency investigation; the assessment of
the case by the Crown Prosecution Service (CPS); and the trial
• to examine whether, if the case is not prosecuted on evidential grounds, the perception of the
weakness of the case is well grounded
• to develop practical recommendations aimed at enhancing the reliability of the evidence
• to consider whether further legislative reform is warranted.
Our study comprised two elements:
• an empirical examination of recent and ongoing criminal investigations in two police force
areas, encompassing three CPS offices and two Crown Courts
• a comparative survey of other jurisdictions where there have been initiatives designed to
facilitate the reception of children’s evidence and improve the quality of that evidence.
We secured our study cases in September and October 1996. The cases were obtained from three
police child protection units (CPUs) and from the CPS in those areas. We refer to the cases which we
obtained from the three CPUs as our ‘police file sample’, while cases which we obtained from the
CPS are referred to as our ‘advice’ and ‘charge’ file samples, depending on whether the police had
submitted the case to the CPS for advice or as a completed investigation deemed fit for prosecution.
Our criteria for selection were that cases should have involved an allegation of physical assault, of ill-
treatment or neglect, or of a sexual offence, in which the victim was, at the time of the complaint to
the police, aged 17 years or under. In total we studied 94 cases, involving 124 complainants. These
94 cases were made up as follows: police file sample (30 cases); CPS advice file sample (30 cases);
and CPS charge file sample (34 cases).
In seeking information on law reform initiatives in other jurisdictions we focused in particular upon
Canada, the United States, Australia, New Zealand and Scotland.
This report contains some material which might be interpreted as critical. That is true of any
empirical investigation into almost any area of practice. It is inevitable that commentators focus on
a reas where improvements might be made. We wish to emphasise there fo re that we we re
enormously impressed by the skill and commitment of the many dedicated practitioners working in
the field of child abuse, and we observed many examples of excellent practice. This needs always to
be borne in mind when considering our various suggestions for change. It should also be understood
that our focus was upon the objectives of investigation and criminal prosecution, upon the myriad
vii
tasks which are involved, and upon procedures and legal rules. We were studying a system, not the
performance of individuals.
The bulk of our empirical investigation was conducted in two police force areas, three CPS offices
and two court centres: accordingly we must exercise caution in seeking to generalise from our
findings.
The Cases
The majority of cases which we monitored involved sexual allegations.
Category of alleged abuse Frequency
Sexual 61 (65%)
Physical 19 (20%)
Physical and neglect 6 (7%)
Physical and sexual 5 (5%)
Neglect 2 (2%)
Physical, sexual and neglect 1 (1%)
Total 94 (100%)
Physical abuse allegations were prominent in the police file sample, but not in the advice or charge
file samples, where they comprised 13 per cent and 12 per cent of cases respectively. There is an
inference that cases of physical abuse reported to the police are less likely to be prosecuted than are
cases of alleged sexual abuse.
Of 124 complainants, 123 knew the alleged abuser. The high proportion of cases involving a close
relationship between child and alleged perpetrator is not surprising gi ven that a signifi c a n t
proportion of our cases originated from CPUs. Some CPUs only investigated cases in which the
alleged perpetrator was either a family member or had had temporary care of the child. These were
the cases which were most problematic when it came to deciding whether to prosecute, and in
evaluating the evidence.
Relationship to complainant Frequency
Parent 32 (25%)
Cohabitee/stepfather 18 (15%)
Family friend 13 (11%)
Neighbour 11 (9%)
Relation 10 (8%)
Youth worker or other professional 10 (8%)
Acquaintance 8 (6%)
Person with temporary care, under 12 hours 7 (5%)
Person with temporary care, 12 hours or more 6 (5%)
Teacher 6 (5%)
Doctor 2 (2%)
Stranger 1 (1%)
Total 124 (100%)
The cases which were prosecuted fell into two categories. Those that involved allegations of
physical assault inva ri ably concerned children who were under the age of eight. Sexual abuse
prosecutions tended to concern older children. Indeed, all but one of the cases in the over-eight age
range involved sexual allegations.
Of the 11 defendants who were charged with physical assault, nine pleaded guilty (commonly to a
reduced charge), with two cases ongoing. In cases involving a charge of sexual abuse, 13 of 31
defendants (42%) pleaded guilty, with four cases ongoing. Again, these guilty pleas were commonly
viii
to a reduced charge. Of 11 cases involving a charge of rape, one defendant pleaded guilty to this
charge, while a further two defendants pleaded guilty to a lesser charge. Eight defendants pleaded
not guilty.
Across our sample as a whole (physical and sexual abuse), 20 defendants entered a plea of not guilty
and were tried. Seven (35%) were convicted on at least one count. Of the eight defendants who
entered a plea of not guilty to a charge of rape, only one was convicted and he was not convicted of
rape but of indecent assault. Four cases led to ordered or directed acquittals.
The Investigation
Child abuse investigations were not necessarily conducted by specialist CPUs. Some cases were
fi l t e red out by Social Services personnel on the basis that a criminal investigation was not
a p p ro p riate; others we re investigated by unifo rmed or CID offi c e rs who did not always fully
understand the remit of CPUs. As a consequence, attitudes towards investigating these cases, and the
skills and understanding brought to bear, varied from case to case.
CPU of ficers were conscious of their responsibility under Working Together (Home Office, 1991) to
regard the child’s welfare as paramount throughout an investigation. This could be difficult to
reconcile with their responsibility as criminal investigators. For example, they might be influenced
by a perception that an investigation could so damage relationships within the family that Social
Services would no longer be able to work with the child.
Child protection training courses did not cover the conduct of the entire criminal investigation.
Courses were conducted jointly with Social Services and focused on those aspects where both
agencies are involved. Thus training tended to be concentrated on the conduct of the video
i n t e rv i ew. This may explain the emphasis on this interview within many investigations. As a
consequence, other areas of the investigation which also needed skills specific to child abuse could
be overlooked.
Training for CPU officers tended to focus on interviewing techniques, incorporating understandings
derived from child psychology. Thereafter there was a strong emphasis on procedural guidance.
However, officers were given little guidance in the legal principles which underlie the va ri o u s
protocols which they are asked to follow. Officers tended to lack confidence in their knowledge of
the law, and were apprehensive about the courts’ reaction to their interviewing techniques. They
were particularly concerned lest they be found to have asked leading questions and so jeopardised
the whole prosecution case.
The videotaped interview has three purposes. It is:
• the initial step in a criminal investigation intended to ascertain whether an offence has been
committed by an identified perpetrator
• an inquiry into whether the child is in need of protection
• the examination-in-chief of the child at trial, in which guise it must comply with the rules of
evidence.
Having observed the conduct of some 79 video interviews with children, we came to the conclusion
that the above three purposes are extremely difficult to reconcile and place unrealistic demands
upon interviewers. While many interviews reflected good and even excellent practice, the tension
between the competing purposes could result in testimony which was incomplete, inadmissible, or
difficult for the jury to understand and evaluate. The restrictions placed upon supplementary
examination-in-chief by counsel at the trial made it difficult for the prosecution to improve its case
beyond the child’s initial, often incomplete disclosure of the offence. The police and CPS expected
the barrister to rectify any key omissions in the initial interview by asking supplementary questions
of the child at the trial. They seemed unaware of how infrequently this happens in practice.
ix
Some of the guidance contained in the M e m o randum of Good Pra c t i c e (Home Office and
Department of Health, 1992) – or the interpretation of that guidance – hampered the collection of
evidence which might have helped the prosecution case. The M e m o ra n d u m e n c o u rage s
interviewers not to ask some direct questions which would be acceptable in court and which, if
asked, would reduce the time spent on peripheral matters after the rapport stage. Interviewers’
interpretation of the Memorandum sometimes resulted in their beginning interviews without having
previously met the child and without a clear plan of the areas which they intended to cover. It might
be helpful if the Memorandum were to give further guidance specifically on the question of a prior
meeting aimed at putting the child at ease.
The videotaped interview was usually the first time the child had spoken in detail about the offence.
The account was typically rambling and incoherent. Interviewers tried to make the story intelligible
by asking further questions. However, unlike a barrister conducting an examination-in-chief in court,
they did not at the time of the interview have a view of the whole case; nor had they necessarily a
clear idea of the nature of the child’s allegations. They tended only to conduct one interview, lasting
about an hour. This could mean that important questions were not asked, giving rise to particular
problems when the child was attempting to describe long-term abuse.
The Decision to Prosecute
The police had developed their own criteria by which they determined whether the behaviour in
question merited criminal sanction. CPU officers operated on the principle that sexual behaviour
t owa rds ch i l d ren is necessari ly ab u s i ve. Where a child was phy s i c a l ly hurt, but not sex u a l ly
assaulted, this might or might not be deemed abusive, depending on the context. In fact the
prosecution decision rested on a complex mix of considerations. These included assessment of
moral culpability, for example, whether the behaviour in question reflected poor parenting rather
than criminal intent; a wish to mark certain people out as dangerous; an assessment of the strength of
the evidence; and concern for the welfare of the child.
Whilst the police operate their own fi l t e ring system, they may also consult the CPS. The
effectiveness of this consultation process varied, depending on the closeness of the link between
CPUs and particular CPS lawyers. The police sometimes sought CPS advice in circumstances where
they merely wished the CPS to approve a decision not to prosecute when this had been made by at
least two experienced child protection officers. This is a questionable use of scarce resources.
More positively, CPS lawyers had found the introduction of videotaped testimony to be enormously
helpful in evaluating child witnesses, albeit these tapes were time-consuming to review.
The police and Crown prosecutors believe that the experience of testifying at a trial is traumatic for
children. This was an important factor in the decision whether to proceed.
The police and Crown prosecutors also believe that it is extremely difficult to secure a conviction
where the sole evidence is that of an inarticulate child who has not given a clear account of the
abuse. Where a child had given a clear, consistent and detailed account, or where there was
evidence which supported the child’s allegations, the case would be viewed more positively. Yet
child abuse is seldom witnessed, and where the allegations concern sexual abuse there is rarely any
supporting medical evidence. Lack of corroboration figured prominently in the decision not to
proceed.
In the absence of corroboration, the credibility of the child became the critical factor. The children
who made these allegations often came from troubled backgrounds. Many had been involved in a
previous investigation, had suffered a psychiatric illness, or had been suspected of lying in the past.
Any of these features was likely, in the e yes of the police and CPS, to undermine the child’s ability to
withstand an attack on his 1 credibility. Police and prosecutors also believed that where, for example,
1 We face the standard problem of needing to sex personal pronouns. We adopt the following convention, understanding of course that it is a convention
and not reflective of social reality: alleged victims and perpetrators are male; practitioners are likewise male; judges are female. When we discuss specific
cases we give the actual sex of those involved.
x
a child had delayed making a complaint, the jury would not be offered an explanation for this
behaviour, which might then be exploited by the defence.
CPS law ye rs did not attend Crown Court themselves and so had to re ly on casewo rke rs fo r
information about the progress of cases, including rulings on the admissibility of evidence. In the
branch offices studied there was no mechanism whereby CPS lawyers were routinely informed of
evidential rulings and the outcome of cases which they had approved for trial. This in turn
c o m p romised law ye rs’ ability to advise the police, for example in relation to the need fo r
corroborative evidence, or the credibility of disclosures in video interviews.
The Pre-trial Period
There appeared to be no co-ordinated effort to bring cases to trial speedily, and certainly none that
succeeded in overcoming the powerful disincentives within the system. These arose from the need,
on the part of prosecution and defence counsel, to ensure thorough case preparation within the
constraints of a workload geared to trials, and on the part of listing officers, the need to maximise use
of judicial time. The fact that there was a formal ‘fast-tracking’ system at one court centre had no
discernible impact upon the speed with which cases were brought to trial. Where the defendant
pleaded not guilty, only 25 per cent of cases were completed within nine months.
The apparent failure of fast-tracking in the study areas meant that child witnesses were typically
caught up in the criminal justice system for 14 months or more. Cases which went to trial took on
average 57.5 weeks from referral to the police to the first day of trial. This could undermine the
integrity of the child’s evidence. For example, contamination might be alleged and inconsistencies
could arise between the child’s accounts. Furthermore, the child might come under pressure to
retract the complaint, or the child’s carers might withdraw their support for the prosecution.
We observed also that the transfer mechanism did not ensure that child abuse cases received priority
in the Crown Court. Plea and directions hearings (PDHs) were often ineffectual, so that the
admissibility of the videotaped interview and of other evidence, as well as entitlement to use the
videolink or screen, remained undetermined until the trial.
The Trial
Overall, the statutory reforms providing special procedures for children’s testimony in court had
bedded down fairly well in our subject areas. Most judges seemed prepared to approach cases
involving child witnesses from the starting point that it is in the interests of justice to admit the
videotaped interviews and to afford children special procedures for their live testimony, at least in the
absence of compelling arguments from the defence.
The Bar recognised the benefits for both prosecution and defence of the videotaped interview and
the videolink. Nevertheless, the view persisted that children make a stronger impression on the jury
when they testify from the witness box.
Technical problems with videotaped interviews and with the videolink sometimes made it difficult
for juries to assess the child’s evidence.
Prosecuting counsel felt that they must rely upon the trial judge to intervene in an intimidating or
unfair cross-examination, or to correct improper attacks on the complainant’s credibility during the
defence’s address to the jury. However, it appeared that some trial judges were reluctant to do this.
The relatively few cases in which children were treated harshly loomed large in police and CPS
consciousness.
The ‘recent complaint’ doctrine appeared to hold little intrinsic probative value in bolstering the
prosecution’s case. On the contrary, it exposed child witnesses to attack in cross-examination for
xi
delaying their complaint. This was despite the fact that reluctance immediately to disclose abuse is
consistent with well-recognised patterns of secrecy, embarrassment and shame.
Expert medical opinion as to the significance of physical signs of sexual abuse (or the absence of
such signs) is commonly presented in the criminal courts. However, juries are not allowed to hear
expert psychological or psychiatric opinion concerning children’s behaviour or demeanour following
sexual abuse.
The Comparative Study: Alternative Models

for Eliciting Children’s Testimony
In 1989 a group chaired by Judge Thomas Pigot reported on the implications of proposals to reform
the videotaping of children’s evidence. The Pigot Committee proposed a radical solution to the
p ro blems inherent in the reception of children’s evidence: the whole of the child’s testimony,
i n cluding cro s s - examination, should be gi ven pre - t rial on videotape. This proposal prove d
c o n t rove rs ial, and subseque nt le gi s l a t i ve ch a n ge s only part i a l ly impleme nted the P igo t
recommendations. In particular, cross-examination of the child witness still takes place at trial. This
compromise arrangement is colloquially referred to as ‘Half Pigot’.
Variations on ‘Half Pigot’
Under the current English regime the videotaped investigatory interview is substituted for oral
ex a m i n a t i o n - i n - chief of the child witness at trial, with prosecuting counsel permitted to ask
s u p p l e m e n t a ry questions only in re s t ricted circumstances. In practice there are seldom any
supplementary questions. In Canada and New Zealand, prosecuting counsel is free to use the
videotaped interview as he thinks appropriate, as complete replacement for oral examination-in-chief
or as one segment of the ch i l d ’s testimony. This shows how the discl o s u re emerged and
demonstrates the child’s emotional state. It allows the prosecutor to organise the child’s testimony
into a more coherent and chronological narrative.
Child witnesses in our study areas could be uncertain until the start of the trial how exactly their
testimony was to be delivered. In four Australian states child witnesses have a measure of control
over how their testimony will be presented in court, with statutory presumptions that they are
entitled to have their videotaped interviews admitted in evidence, and that CCTV may be used for
oral testimony.
Variations on ‘Full Pigot’
The current English appro a ch to the presentation of ch i l d re n ’s testimony gi ves rise to thre e
concerns:
• the competing functions of the initial interview with the child can produce evidence that may
be incomplete, difficult to comprehend or inadmissible
• the prolonged interval between examination-in-chief and cross-examination can undermine
the integrity of the child’s evidence
• if a child witness is involved in the criminal justice system over a prolonged period, this may
jeopardise his welfare.
Other jurisdictions have sought solutions for these problems in variations of ‘Full Pigot’ whereby the
entire evidence of a child witness is recorded at a pre-trial hearing. To date such legislation has been
implemented in Western Australia, Queensland, 36 US states and in Federal US law. All of these
jurisdictions except Queensland appear to consider that the procedure is working satisfactorily,
although the early experience in Western Australia indicated that the objective of having children
deliver their testimony well before the trial date was not always realised. Proposals to extend pre-
trial cross-examination throughout Australia and to introduce it in New Zealand are currently under
xii
consideration. In Scotland, legislation permitting pre-trial testimony by children has been in force
since 1993 but has not been used, apparently because prosecutors and judges are reluctant to depart
from the traditional mode of presenting evidence to a jury and so decline to invoke the broad
statutory discretion to use the procedure.
Key Recommendations
There are a variety of constraints which may inhibit the development of a measured and effective
response to allegations of child abuse, and a variety of far-reaching reform proposals. Here we simply
outline a few central recommendations which emerge clearly from our study.
• Where a criminal investigation of alleged child abuse is thought to be warranted, this should
be conducted by a specialist child protection unit.
• All CPU officers should be given standardised training in conducting child abuse
investigations, including practical instruction in the legal principles which underlie the rules
of evidence.
• Further guidance should be given on how to interview children who are thought to be victims
of long-term abuse or who appear to be making incomplete disclosure.
• The Memorandum of Good Practice requires revision, in particular to emphasise the
importance of strategic planning of the investigation as a whole.
• The yardsticks by which the police and CPS determine whether alleged child abusers should
be prosecuted need to be reviewed and more clearly articulated.
• Each CPS branch should contain prosecutors with special responsibility for this type of work.
They should be responsible for monitoring case progress, and for reviewing case outcomes
with colleagues.
• All cases involving child witnesses should be placed under the supervision of a designated
judge as soon as the case is transferred to the Crown Court. The judge should have
responsibility for setting a timetable for prosecution and defence disclosure, and for any pre-
trial applications.
• Prosecuting counsel should be given greater latitude in determining the extent to which the
videotaped interview shall constitute the child’s examination-in-chief at trial.
xiii
xiv
Chapter I: Introduction
CHAPTER I: INTRODUCTION
Background to the Study
This is a study of the admissibility and sufficiency of evidence in child abuse prosecutions. The
problems of prosecuting child abuse are well known. There are also moral and legal conundrums
concerning what exactly we mean by child abuse, and what degree of abusive behaviour we judge
worthy of criminal prosecution. It is instructive to reflect on the purposes of criminal prosecution in
respect of all manner of wrongdoing, but these questions become particularly pressing, and the
answers particularly elusive, in the realm of child abuse.
An opposition is occasionally suggested between protecting the welfare of children and safeguarding
the interests of defendants. In fact there is a variety of means by which the welfare of vulnerable
children may be enhanced, both within criminal proceedings and independently of them. At the
same time there is, within criminal justice, an ove rriding obligation to ensure that innocent
defendants are not convicted. Our concern for the well-being of children may persuade us, in some
instances, to allow the guilty to go unpunished.
Prosecutions for child sexual abuse often rest upon the credibility of a single vulnerable witness.
There is typically little in the way of corroboration, and the offences usually are denied. There are
limits to what can be achieved through legislative and procedural reform to assist the trier of fact.
We have to place enormous reliance on child witnesses in circumstances where we feel bound,
because of the child’s vulnerability, to temper the usual adve rs a rial techniques designed to test
reliability. At the same time the quality of the evidence must meet the standard demanded for a
criminal conviction.
Investigative practice in this area has been driven by scandal. This is an environment in which one
might expect police and social workers to ‘play by the rules’ in so far as they understand those rules,
and generally to be constrained by fear of criticism. They are unlikely to feel confident in what they
do.
Legislative and procedural reform over the past decade has concentrated on developing efficient
procedures for case management, and on modifying evidential rules and the processes by which
evidence is given in order to make these rules and processes more sensitive to the needs of children.
It is perhaps inevitable that these changes have not heralded a spate of convictions for offences
i nvolving child abuse, although it is widely perc e i ved that they have benefited the ch i l d re n
concerned. Meanwhile there have been renewed calls for measures to be introduced which would
avoid children having to give oral evidence at trial.
This debate is not generally informed by an understanding of the reasons why the evidence in child
abuse cases commonly fails to meet the standards required for a successful prosecution. Work has
been done into the nature of inter-agency collaboration, into the effect of such investigations upon
children and their families, and into the capacity of children to be competent witnesses at a criminal
trial, but there has been no systematic study in England and Wales of the admissibility and sufficiency
of the evidence gathered in the course of these investigations.
1
Research Objectives
Our research objectives were as follows:
• to investigate the extent to which cases are not prosecuted because the evidence gathered
during the investigation is deemed insufficient or inadmissible, rather than because of
extraneous considerations such as concerns about the possible detrimental effects of a
prosecution on the child or its family
• to examine the way in which the admissibility and weight of the evidence is evaluated in each
of the three phases of a criminal prosecution: the inter-agency investigation; the assessment of
the case by the Crown Prosecution Service (CPS); and the trial
• to examine whether, if the case is not prosecuted on evidential grounds, the perception of the
weakness of the case is well grounded
• to develop practical recommendations aimed at enhancing the reliability of the evidence
• to consider whether further legislative reform is warranted.
Research Method
Our research methodology is set out in full in Appendix A. The study comprised two elements:
• an empirical examination of recent and ongoing criminal investigations in two police force
areas, encompassing three CPS offices and two Crown Courts
• a comparative survey of initiatives in other jurisdictions designed to facilitate the reception of
children’s evidence and to improve the quality of that evidence.
We secured our study cases from police CPUs and from the CPS over a period of nine months. Our
criteria for selection were that cases should have involved an allegation of physical assault, ill-
treatment or neglect, or a sexual offence, in which the alleged victim was, at the time of the
complaint to the police, aged 17 years or under.
In total we studied 94 cases involving 124 complainants.
These 94 cases were subject to the following processes, as appropriate:
• paper file review, including observation of videos

• attendance at plea and directions hearings (PDHs)
• attendance at trial
• interviews with police officers
• interviews with Crown prosecutors
• interviews with counsel.
This report contains some material which might be interpreted as critical. That is true of any
empirical investigation into almost any area of practice. It is inevitable that commentators focus on
a reas where improvements might be made. We wish to emphasise there fo re that we we re
enormously impressed by the skill and commitment of the many dedicated practitioners working in
the field of child abuse, and we observed many examples of excellent practice. This needs always to
be borne in mind when considering our various suggestions for change. It should also be understood
that our focus was upon the objectives of investigation and criminal prosecution, upon the myriad
tasks which are involved, and upon procedures and legal rules. We were studying a system, not the
performance of individuals.
Because the main part of our empirical investigation was conducted in two police force areas, three
CPS offices and two court centres, we have to exercise caution in seeking to generalise from our
2
Chapter I: Introduction
research findings in order to assert that these are representative of the country as a whole (although
we did visit four other centres to check that practices in our two study areas were not markedly out
of line with those elsewhere). Whilst a degree of regional variation is inevitable, we have no reason
to suppose that the broad themes of our study do not have general application. It is also important to
understand that the issues which we sought to examine could not be elucidated by means of survey
techniques; it was essential that we immerse ourselves in the conduct of these cases, and this meant
that the study had to be based at just a few centres.
In seeking information on law reform initiatives in other jurisdictions we focused in particular upon
Canada, the United States, Australia, New Zealand and Scotland.
We were granted access to a wealth of documentary materials and also enjoyed an extensive dialogue
with officials, practitioners and academics in these countries. One member of the team spent time in
Canada, conducting interviews, observing case preparation and gathering materials.
3
4
Chapter II: The Legal and Procedural Framework
CHAPTER II: THE LEGAL AND

PROCEDURAL FRAMEWORK
Child abuse poses particularly difficult evidential challenges for the criminal justice system because
of the surreptitious nature of the offences and the vulnerability of the victims. In the late 1980s there
was a growing perception that the criminal and civil justice systems were ineffective in dealing with
child abuse once it had come to light or, even worse, re-victimised the child (NSPCC, 1989; Williams,
1987; Adler, 1988). There followed piecemeal measures which modified the statutory and common
law rules underpinning the adversarial system of justice and created a framework for inter-agency co-
operation. These reforms erected a procedural and legal structure which requires those involved in
the investigation and prosecution of child abuse to assume new pro fess ional roles and
responsibilities. For crimes against adults, the police collect the evidence and the prosecutor
adduces that evidence at trial. For crimes against children, in contrast, police and social workers are
responsible not just for investigating whether abuse has occurred, but for presenting the child’s
evidence to the court by way of videotaped examination-in-chief.
The Background to Legal Reform
In 1988 Parliament introduced a system whereby child witnesses could give viva voce testimony at
trial through closed-circuit television links (CCTV) from outside the courtroom. The Home Secretary
established an advisory group chaired by Judge Thomas Pigot to consider the practical implications
of broader reform proposals to videotape children’s evidence. The recommendations of the Pigot
Committee (P i got Rep o rt, 1989) provided the basis for limited statutory re fo rm in 1991 and
delineated the parameters for the debate concerning further reform both in the UK and other
jurisdictions (New South Wales RC, 1997; Western Australia LRC, 1991).
The Pigot Committee’s recommendations we re premised on their finding that under the
arrangements then in place most children were adve rs e ly affected by giving evidence at trials
involving serious offences (para. 2.12). The Committee established two guiding principles: first, that
the part of the proceedings in which a child witness is involved should be disposed of “as rapidly as
is consonant with the interests of justice”; and second, that children should give evidence in
surroundings and circumstances which do not intimidate or overawe them (para. 2.14). These
principles dictated a radical solution: children should be taken out of the formal criminal trial process
altogether.
The Pigot Committee made four central recommendations as a means of implementing this new
regime (paras. 2.25–2.34).
• Children ought never to be required to appear in public as witnesses in the Crown Court,
whether in open court or protected by screens or CCTV, unless they wished to do so.
• A video-recorded interview in which the child witness gives information concerning an
offence should be admissible in evidence and substantially replace oral examination-in-chief.
A court should exclude it only if the interests of justice so require.
• The prosecution should be entitled to apply for a child witness to be examined and cross-
examined in informal surroundings at an out-of-court hearing. This would be video-recorded
and later shown at the trial. The defendant would view the proceedings through a two-way
5
mirror or CCTV, and instruct the defence advocates through an audio link. The court should
control cross-examination with special care.
• A majority of the Committee proposed that the judge should have discretion to allow
questions from counsel to be relayed to a child witness through an ‘interlocutor’. Everyone
with an interest would be able to communicate, indirectly, through the interlocutor (Williams,
1987; see also Jones, 1987). The Bar’s representative thought a specialist interlocutor would
be unnecessary if counsel had greater opportunity to establish rapport with the child before
the hearing.
The recommendation to take the child witness out of the formal trial process altogether proved
controversial. The changes wrought by the Criminal Justice Act 1991 only partially implemented the
recommendations of the Pigot Committee. Further adjustments were made by the Criminal Justice
and Public Order Act 1994 and the Criminal Procedure and Investigations Act 1996.
The principal features of the current regime, sometimes colloquially referred to as ‘Half Pigot’, are:
• there is no preliminary hearing to record the child witness’s evidence

• a videotaped interview with a child witness conducted by police and/or social workers is
admissible at trial, subject to the court’s discretion to exclude it if the interests of justice
require
• the interview is admissible only if the child is available to be cross-examined at the trial, which
inevitably will take place many months later
• the interview is expected to replace completely the examination-in-chief normally conducted
by prosecuting counsel
• the child witness is not automatically entitled to use CCTV or a screen when testifying at trial;
the prosecution must obtain leave of the court
• there is no statutory provision for an interlocutor.
The Background to Procedural Reform
The response of state agencies to suspected maltreatment of children has resulted in several high
profile crises. Inquiries have been conducted into the deaths of children at the hands of their parents
when Social Services and other agencies knew that the parent had been violent in the past (Maria
Colwell Report, 1974; Jasmine Beckford Report, 1985; Tyra Henry Report, 1987). Other inquiries
scrutinised the way that some allegations of sexual abuse had been investigated. In these cases the
inquiries were ordered in part because of a fear that state agencies had drawn erroneous conclusions
from the child’s statements in interview or from medical examinations (Cleveland Report, 1988;
Clyde, 1992). Both types of inquiry found systemic problems in the way that agencies dealt with
child abuse (see also D H S S, 1982) and proved highly inf luential in the development of new
procedures.
Inquiry reports concluded that there was a failure of all the agencies involved in the investigation and
treatment of child abuse to work in partnership and to share information. They condemned the lack
of defined responsibilities within child protection which meant that in some cases work had not
been undertaken because it was assumed that another agency was doing it, while in others children
were repeatedly interviewed or medically examined (Cleveland Report, para. 4.39).
It was also found that police officers and social workers did not have the training and skills to
produce evidence which would be acceptable to a court. Child abuse originally had been seen as a
problem in need of medical and social treatment; the focus had been on diagnosis and cure (Parton
et al., 1997). The emphasis shifted to investigation and the gathering of evidence because inquiry
reports and civil cases repeatedly found that the evidence of abuse which was adduced had limited
probative value. Interviewers were criticised for questioning children in a manner which suggested a
particular answer, or for encouraging children to demonstrate sexual play.1 Doctors were criticised
for not approaching the examination of a child with the open mind which was necessary if the
1 E.g. Cleveland Report, para. 4.155; Rochdale B.C. v A. and Others [1991] 2 FLR 192 at 210; Re E [1991] 1FLR 420 at 433.
6
findings were to aid the court.2 All those involved in child protection were criticised for not keeping
proper records.
The development of procedures for the investigation of child abuse was not solely tied to concerns
about evidence. It was also concluded that the procedures required to produce acceptable evidence
in court should inflict the least possible harm on the children involved. For example, the Cleveland
Report recommended that children should be interviewed once, or at most twice, because it was felt
that this reduced the likelihood that their evidence would be tainted by ‘leading’ by interviewers. It
also asserted that to be repeatedly questioned about sexual abuse which may not have occurred was
inherently damaging to children (para. 4.155).
As a result of these and other pressures within the child protection community, Working Together
(Department of Health, 1988) was written to create guidance which could be shared by all agencies.
This laid down a foundation of principles for the investigation of child abuse on which local procedures
could be built. A second edition of Working Together was produced in 1991 (Home Office, 1991), and
a further consultation document was published in 1998 (Department of Health, 1998).
The Investigation
Wo rking To gether 1991 d e fines the police, Social Services and the National Society for the
P revention of Cruelty to Children (NSPCC) as the agencies re s p o n s i ble for conducting an
investigation (para. 5.8). All agencies involved in child protection are meant to follow the inter-
agency procedures laid down. These have created a ‘federative’ rather than ‘unitary’ system for co-
operation in child abuse cases (Warren, 1967). Thus it is expected that the various agencies will
continue to adhere to their specific goals, but that they will adopt common procedures and shared
decision-making structures when they have interests in common (Hallett and Birchall, 1992).
Working Together 1991 states that the police should focus on achieving their own organisational
goals, which it defines as ‘to determine whether a criminal offence has been committed, to identify
the person or persons responsible and to secure the best possible evidence in order that appropriate
consideration can be given as to whether criminal proceedings should be instituted’ (para. 4.11).
However, the overriding concern of the police, in common with all the agencies in the field, should
be the ‘welfare of the child’ (para. 4.11).
One criticism of the concept of a federation of child protectors is that its adherents tend to gloss over
the potential conflict between individual organisational goals and those of the multi-agency group
(Kimberley Carlile Report 1987, p.140). Working Together does not provide specific guidance for
investigators who feel that the priorities of their agency differ from those of the multi-agency group.
There is for example no explicit advice for police officers who consider that the child’s welfare
conflicts with their goal of ‘securing the best possible evidence’. One possible interpretation of the
guidance is that the police should allow the child’s welfare, as their “overriding” consideration, to
trump their own organisational interests.
Referral and Immediate Protection
It is env i s aged in Wo rking To gether 1991 that an investigation will begin when one of the
investigating agencies is contacted by someone expressing concern about a child (paras. 5.11.1 –
5.14.6). This concern is then to be shared with the other investigating agencies, and additional
information is to be gathered from any other agencies involved with the child, as well as from the
referrer. The investigating agencies decide whether immediate action is needed to protect the child.
Planning the Investigation
At about this time there should also be a strategy meeting to plan the investigation and the role that
each agency will play in it. There might be a decision at this point that only one agency will be
involved in the investigation (Working Together 1991, para. 5.13.1). For example, some Social
2 Cleveland C.C. v D. [1988] F.C.R. 615 at 623C.
7
Services departments will not be involved in a case of ‘stranger abuse’ where there are no concerns
for the child’s safety within the home. Likewise police officers will not be involved in cases where
no criminal offence is suspected.
Where a decision is made to investigate, this may include a medical examination of the child and,
more frequently, a videotaped interview. The Cleveland Report recommended that a medical
examination should only take place where it was realistic to expect that this would show signs of
abuse (para. 11.53).
The Initial Videotaped Interview
Because the initial interview becomes the child’s direct testimony at trial, interviewers are required at
the outset of the investigation to perform two roles, as investigators and as counsel adducing
evidence. To guide them in this difficult task the Home Office and the Department of Health issued a
Memorandum of Good Practice in 1992. This includes both a synopsis of the rules of evidence
which govern the examination-in-chief of a witness and a guide to the form that the interview should
take.
The Memorandum follows the ‘phased approach’ to interviewing recommended in the Pigot Report.
This was in turn based on the ‘step-wise’ approach created by Professor Yuille of the University of
British Columbia. It starts with a rapport-building stage to enable the interviewer and child to
establish a relationship and to impress upon the child the importance of telling the truth. The child
should then be encouraged to give as ‘free and spontaneous’ an account of the relevant events as
possible. If after this the child has given some information about the alleged events, the interviewer
can question the child, but the questions must be as open-ended as possible. Specific questions on a
particular area of the child’s story can then be used to clarify details and to probe inconsistencies.
The interviewer is strongly warned against using leading questions. Where the interviewer believes
that leading questions are tactically necessary, he is encouraged to revert to a neutral mode of
questioning as and when the child volunteers information. The interview does not have to contain
each questioning stage. The interviewer may close the interview at any time if the child says nothing
relevant to the allegation. When the interviewer is ready to bring the interview to a close he should
go over the relevant information in the child’s language. He should then thank the child and allow
the child to ask any questions.
The interview itself is expected to take place as soon as a strategy for the investigation has been
decided. ‘Delay’, the Memorandum emphasises, ‘is bad for the child and bad for justice’ (para. 1.9).
The interview is expected to last less than an hour. One further interview with the child may be held
‘if strictly necessary’, where it is felt, in consultation with the CPS (para. 1.11), that the child has not
given as much information as he can. By implication a second interview should not be undertaken
simply because the child has not explained his story clearly.
The Criminal Justice Act 1988 s.32A restricts the admissibility of video recordings of child witness
testimony to proceedings in the Crown Court, the Criminal Division of the Court of Appeal, and the
Youth Court. Consequently, a child witness must give live testimony in trials held in the Magistrates’
Court.
A complex set of statutory rules governs whether a child’s videotaped interview can be tendered in
evidence by the prosecution:
• the child witness must not be the accused (CJA 1988 subs.32A(2)(a))
• the child must have been under 14 years when the video recording was made, and under 15
years at the time of trial, if the offence being tried involves physical violence or cruelty (CYPA
1933, s.1)
• if, however, the offence is sexual in nature, a videotaped interview is admissible if the child
was under 17 when the video recording was made, and under 18 at the time of trial.
8
The police decision concerning whether criminal proceedings should be initiated is meant to be
based on three factors:
• whether there is sufficient evidence to prosecute

• whether it is in the public interest that proceedings be instigated against a particular offender
• whether it is in the interest of the child victim that proceedings should be instituted (Working
Together 1991, para. 4.12).
Thus although the child’s welfare is expected to be the overriding consideration in any investigation,
it is only one of three factors in the decision to prosecute.
The review by Crown prosecutors of documents submitted to them by the police is governed by the
Revised Code for Crown Prosecutors (CPS, 1994) which requires the evidence to satisfy two
sequential tests in order to be approved for prosecution: the evidential sufficiency criterion and the
public interest criterion.
Crown prosecutors must be satisfied that there is enough evidence to yield a realistic prospect of
conviction against each defendant and in relation to each charge on the indictment. Once the CPS is
satisfied that there is sufficient evidence to provide a realistic prospect of conviction, it must then
proceed to the second test, that of the public interest. “In cases of any seriousness, a prosecution
will usually take place unless there are public interest factors tending against a prosecution which
clearly outweigh those tending in favour” (Revised Code, para. 6.2). Seriousness should be
measured, amongst other things, by whether the suspect was in a position of trust, the victim of the
offence was vulnerable, a weapon or violence was used during the commission of the offence, and
the crime was premeditated (Revised Code, para. 6.4). The CPS must also take into consideration
any long delay between the offence and the date of trial, the personal circumstances of the suspect,
and whether the harm can be regarded as minor and the result of a single incident. Prosecutors must
also consider whether a prosecution might harm the complainant’s physical or mental health. There
is no reference in the guidance to the possibility that a court hearing will be damaging to a person
whose vulnerability lies in the fact that he is a young child. In trying to weigh these factors the
Crown prosecutor should consider the interests of the complainant as “an important factor in
determining where the public interest lies” (Revised Code, para. 6.7). In addition, the CPS has
issued internal guidance which is specific to child abuse and child witness cases.
Defence Applications for Third-Party Disclosure
A frequent issue in child abuse prosecutions is the disclosure to the defence3 of confidential records
respecting a child witness held by a third party such as Social Services, a local education authority, a
therapist or a doctor. The threshold question for the court is whether the documents sought meet
the test of materiality. R. v Derby Magistrates’ Court ex p. B4 sets out the principles governing third-
party disclosure. These in essence require that the documents must not only be relevant to the
issues in the criminal proceedings, but must also be admissible in evidence on behalf of the defence.
Documents which are desired mere ly for the purpose of possible cro s s - examination are not
admissible in evidence, and thus are not disclosable. The procedure must not be used as a disguised
attempt to obtain discovery. Third parties are no longer bound to disclose documents which might
assist in the conduct of the defence case,5 although these are to be disclosed when they are held by
the prosecution.6
3 Criminal Procedure (Attendance of Witnesses) Act 1965 s.2, as amended by the CPIA 1996, s.66. Where the proceedings are in the Magistrates’ Court, the
summons will be issued under the Magistrates’ Courts Act 1980 s.97, as amended by the CPIA 1996, s.47, Schedule 1, para. 8.
4 [1995] 4 All ER 526 at 545 (HL), approving the principles in R. v Reading Justices ex.p. Berkshire CC [1996] 1 Cr App R 239 at 246 (CCA).
5 R. v H.(L.) [1997] 1 Cr App R 176 (Reading Crown Court, per Sedley J.).
6 In R. v Azmy (1996) 34 BMLR 45 (Manchester Crown Court), Mitchell J. obser ved that for some years prior to the Derby case (Note 4, abo ve) the courts
had applied the same test to disclosure by third parties as to disclosure by the prosecution.
9
The Trial
Attendance of the Child Witness at Trial
The distance between the Pigot Committee’s recommendations and the current statutory regime is
revealed by the virtually absolute requirement that the child testify at the trial whenever the
prosecution rests primarily upon the child’s disclosure of abuse. There are only two avenues to keep
the child out of the trial process, both of which are very rarely used. First, the Children and Young
Persons Act 1933, ss.42 and 43, makes a pre-trial deposition of a child victim before a justice of the
peace admissible in evidence on behalf of the prosecution or the defence in circumstances where the
court is satisfied on the evidence of a qualified medical practitioner that the child’s attendance before
the court would involve ‘serious danger to his life or health’.7 The prosecution must prove that the
defence was afforded the opportunity to cross-examine the child. Secondly, the Criminal Justice Act
1988 subs.23(3) creates a statutory exception to the hearsay ban for statements to an investigator
where the person who made the statement does not give oral evidence ‘through fear, or because he
is kept out of the way’. However, the court has residual discretion under s.25 of the Act to exclude a
hearsay statement if it is of the opinion that in the interests of justice it should not be admitted,
having regard to the nature and source of the hearsay evidence, the extent to which it appears to
supply evidence which otherwise would not be readily available, its relevance and the risk of
unfairness to the accused.
Competence of Children to Give Evidence
Since 1994 the courts have been required to receive a child’s evidence ‘unless it appears to the court
that the child is incapable of giving intelligible testimony’ (CJPOA 1994, Sch. 9, s.33, amending CJA
1988 subs. 33A(2A)). A child is considered capable of giving intelligible testimony if he is able to
understand questions and to answer them in a manner which is coherent and comprehensible.8 For
the videotaped interv i ew to be admissible, the child must demonstrate these qualities in the
interview. It is no longer necessary to determine whether a child can distinguish between truth and
lies, and that he appreciates the importance of speaking the truth.9 If the judge considers that the
child’s competence as a witness is questionable, he should conduct a preliminary investigation into
the matter through ordinary conversation with the child, rather than have counsel embark on an
adversarial examination and cross-examination.10 The trial judge or magistrates are considered
capable of applying the simple test of whether the child can give intelligible evidence, without any
input from an expert.11
The Initial Investigatory Videotaped Interview as Examination-in-chief
Unless the prosecuting counsel elects to conduct a viva voce examination-in-chief of the child
complainant, the keystone of the prosecution’s case will be the videotaped interview of the child,
conducted by police officers and/or social workers, at or near the outset of their investigation.
The prosecution is required to prove the video recording through calling the interviewer or any
other person who was present at the interview, unless the defence waives this requirement.12 The
prosecution must also prove that the child witness is available in court for cross-examination (CJA
1988 subs.32A(3)(a)). If these requirements are met, the trial judge must admit the video recording
into evidence unless rules requiring disclosure of the circumstances in which the recording has been
made have been breached, or the court is of the opinion, ‘having regard to all of the circumstances of
the case, that in the interests of justice the re c o rding ought not to be admitted’ (CJA 1 9 8 8
subs.32A(3)(b) and (c)). The admissibility of a videotaped interview in criminal proceedings is also
subject to the Police and Criminal Evidence Act 1984 s.78. This gives the trial judge discretion to
exclude evidence tendered on behalf of the prosecution if, in ‘all the circumstances, including the
7 A recommendation by the Inglby Committee’s Report on Children and Young Persons to clarify that “health” includes “mental health”, and to downgrade
the threshold test to “would involve injury to his health” has never been implemented [Cmnd. 1191, 1960, para. 261, recommendation 52].
8 DPP v M. [1997] 2 All ER 749 at 753.
9 R. v Hampshire [1995] 2 All ER 1019 at 1026 (CCA).
10 R. v Hampshire [1995] 2 All ER 1019 at 1025–1026.
11 G. v DPP [1997] 2 All ER 755 at 758–759 (QBD).
12 CCA Practice Note [1992] 3 All ER 909 at para. 3. The procedures governing an application to tender in evidence a video recording of testimony are
stipulated in the Criminal Appeal Rules 1968, r.9(C).
10
circumstances in which the evidence was obtained’, the admission of the evidence would have ‘such
an adverse effect on the fairness of the proceedings that the court ought not to admit it’. Arguments
for exclusion under s.78 tend to rely upon breaches of the Memorandum. Reliability is the key to
admissibility. Reliability of the child’s videotaped interview is to be determined by the trial judge or
magistrates without the assistance of expert analysis of the transcript employing techniques such as
‘statement validity analysis’ or ‘thematic emergence of anomaly’.13
The trial judge has jurisdiction to order that portions of the video recording be excluded or edited as
a condition of admissibility.14 The court is required to consider whether any prejudice to the
accused which might result from the admission of some part of the recorded interview is outweighed
by the desirability of showing the whole, or substantially the whole (CJA 1988 subs.32A(4)).
Supplementary Examination-in-chief
Section 32A of the Criminal Justice Act 1988, as amended in 1994, prohibits prosecuting counsel
from examining the child witness in chief on any matter which, in the opinion of the court, has been
dealt with ‘adequately’ in the recorded testimony. The Criminal Procedure and Investigation Act
1996 subsection 62(2) relaxes the prohibition on asking supplementary questions. It allows the court
to give permission for the child witness to give further live testimony in chief respecting matters
dealt with in the video recording where there has been ‘a material change of circumstances’ since
the court first gave leave to admit the video recording in evidence and it appears to the court ‘to be
in the interests of justice to give such permission’. This provision was not in force at the time of our
fieldwork.
The Videolink
Leave of the court is required before a child is permitted to testify outside the courtroom via CCTV
link (CJA 1988 subs.32(1)). The link is available only in the Crown and Youth Courts. The same age
and offence gateways which restrict the admissibility of video recordings apply to the videolink.
Screens
As an alternative to the videolink, the child may be permitted to testify from the witness box in the
courtroom, but with a screen shielding the witness from the sight of the defendant. The child is still
visible to the jury, the trial judge and both counsel. Authority for using screens is derived from case
law rather than statute.15
Cross-examination on the Prior Sexual History of the Child Witness
The Sexual Offences (Amendment) Act 1976, s.2 provides that in any trial of a defendant charged
with a ‘rape offence’, leave of the trial judge is required before any evidence may be tendered, or any
question in cross-examination asked, about any sexual experience of a complainant with a person
other than that defendant. The judge shall give leave ‘if and only if he is satisfied that it would be
unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked’.
Although section 2 defines complainant as ‘woman or man’, with no reference to children (CJPOA
1994, subs. 168(2) and Sch. 10, para. 35(1), (3)), it has been interpreted by judges as governing cross-
examination of child witnesses respecting their prior sexual experiences.
The Corroboration Warning
The Criminal Justice Act 1988 s.34 abolished the requirement for material corroborative evidence
from an independent source for any unsworn evidence of a child. The common law requirement
that trial judges give a mandatory warning to the jury about the dangers of convicting the accused on
the uncorroborated sworn evidence of a child was also abolished ‘where such a warning is required
by reason only that the evidence is the evidence of a child’ (CJA 1988, subs.34(2)). The common law
13 G. v DPP [1997] 2 All ER 755 (QBD).

14 CJA 1988 subs.32A(3); CCA Practice Note [1992] 3 All ER 909 at para. 3.
15 R. v Smellie (1919) 14 Cr App R 128 (CCA); Re X, Y, Z (1990) 91 Cr App R 36.
11
also required a corroboration warning to be administered respecting the evidence of all complainants
of sexual offences. This remained intact until it was abolished in 1994 (CJPOA 1994, s.32).
The trial judge still has residual discretion to administer a corroboration warning where he considers
it warranted. The relevant considerations in exercising this discretion include the circumstances of
the case, the issues raised, the content and quality of the witness’s evidence, and whether there is a
basis, beyond mere suggestion by cross-examining counsel, for supposing that the evidence of the
witness may be unreliable.16
Hearsay Evidence
The common law rule against hearsay bars evidence of a written or oral statement made by a person
who is not giving oral testimony in the proceedings where that statement is tendered as evidence of
the truth of any fact asserted.17 The hearsay rule also makes previous assertions of a witness
inadmissible as evidence of the facts stated (sometimes called the rule against ‘self-corroboration’ or
‘prior consistent statements’) (Tapper, 1995).
An out-of-court statement may evade the hearsay ban if it can be contended that the statement is
relevant for some reason other than proving the truth of its content, such as rebutting an allegation
that the witness’s testimony was concocted (‘recent fabrication’), or to show the state of mind of the
person making the statement. Evidence tendered for this limited purpose is often described as
‘original evidence’.
The hearsay rule, which applies to the defence as well as to the prosecution,18 is qualified by an
immensely complicated web of statutory and common law exceptions. However, in English law
there is no exception specifically designed to admit statements made by children to third parties.
Evidence of Recent Complaint
An example of ‘original evidence’ which is unique to prosecutions for sexual offences is the so-called
‘recent complaint’ doctrine. A complaint by the alleged victim shortly after the offence is admissible
as part of the prosecution’s case. It is evidence, not of the truth of the matters complained of, but of
the fact that the alleged victim’s conduct in complaining was consistent with his testimony, and so is
an exception to the general ban on prior consistent statements. The evidence is admissible only to
bolster the complainant’s credibility by rebutting an anticipated attack by the defence alleging
fabrication of the complaint.19 It follows that evidence of what the complainant said, as well as the
fact that the complaint was made, is admissible.20 The same doctrine applies to young children.21
The technical criteria for admission of a complaint prescribed by the English common law are:22
• the offence charged must be sexual in nature, although admissibility no longer depends on the
gender of the complainant;
• the statement must be spontaneous, and not elicited by questions of a leading or suggestive
character;
• the complaint must have been made at the first reasonable opportunity after the offence was
committed; and
• the statement must amount to a complaint of sexual assault.23
The ‘first reasonable opportunity’ to make a complaint is now liberally construed to take into
account the character of the complainant, the relationship between the complainant and the person
16 R. v Makanjuola, R. v Easton [1995] 3 All ER 730 at 732–733 (CCA).

17 R. v Sharp [1988] 1 All ER 65 at 68 (HL).
18 R v Sharp [1988] (above).
19 See The Queen v H. [1997] 1 NZLR 673 for a penetrating dissection of the justifications for the doctrine.
20 R. v Lillyman [1896] 2 QB 167.
21 E.g, R. v B. [1997] Crim LR 220 [victim aged 10]; R. v French (unreported judgment rendered 18 July 1997, CCA) [victim aged 8].
22. R. v Lillyman [1896] 2 QB 167; R. v Osborne [1905] 1 KB 551 at 561; for further discussion see Cross and Tapper, (Tapper, 1995), at 296–302.
23. Even where counts of physical abuse are jointly tried with sexual assault, prompt complaints of the physical abuse are not admissible: R. v Greenwood
[1993] Crim LR 770 (CCA).
12
to whom the complaint was made, and the persons to whom the victim might have complained but
did not do so.24 The complaint which is tendered in evidence need not be the first complaint,
provided that the subsequent complaint was made as speedily as could reasonably be expected.25
The recent complaint doctrine can be viewed as benefiting victims of sexual assault by bolstering
their credibility. However, it also renders vulnerable to attack those victims who delay making a
complaint, requiring them to defend their actions following the alleged assault. In R. v B. 26 the Court
of Appeal took judicial notice of the typical reasons why child victims of sexual abuse perpetrated by
a close family member often delay disclosure, sometimes for many years; nevertheless, where the
defence contends that delayed complaint undermines a complainant’s credibility, the prosecution
will need to offer some evidence to explain the delay.27
Restrictions on Expert Testimony
While medical evidence regarding the presence or absence of physical signs of sexual abuse is
commonplace in criminal prosecutions for child abuse in England, psychiatric evidence concerning
the mental state and behavioural symptoms typical of child victims of sexual abuse is not permitted.
This is because it is regarded as intruding on the exclusive province of the jury to evaluate the
reliability of the child’s testimony.28
Other Discreditable Acts of the Defendant as Part of the Prosecution Case
There are two ways in which evidence of the accused’s bad character may become part of the
prosecution’s evidence-in-chief: as similar fact evidence, and as part of the background of the
transaction between the accused and the complainant.
Similar fact evidence covers evidence of misconduct by the defendant, whether arising before or
after the offence charged, and of the defendant’s propensity or disposition to conduct himself in
general or specific ways (Law Commission, 1996). The principle is that evidence of previous
misconduct is inadmissible because a defendant should be tried only on evidence pertaining to the
offence charged, and not on his past misdeeds or reputation. However, the common law recognises
that such evidence can be strongly probative, and so in exceptional circumstances it may be
admitted. In R. v P.29 the House of Lords formulated the test of admissibility as requiring that the
probative value of the evidence be sufficiently great to justify its admission notwithstanding its
prejudicial effect, an enhanced test of relevance over that which is required for other types of
prosecution evidence.
It is permissible for the prosecution to lead evidence of misconduct by the accused which is not
strictly part of the offence charged, but which is considered to be part of the same continuous
transaction. The ‘background evidence’ rule is particularly valuable to the prosecution in cases of
child sexual abuse, to show a course of conduct by the defendant culminating in the abusive acts
which form the basis of the charges.
Previous Misconduct Disclosed in Cross-examination of the Defendant
A defendant who testifies is normally protected against cross-examination on any prior convictions
and other misconduct (CEA 1898, s.1(f)). Howeve r, he may expose himself to such cro s s -
examination if he has ‘thrown away his shield’ by the conduct of his case, in particular by casting
imputations on the character of a prosecution witness (CEA 1898, s.1(f)(ii)). In sexual offence trials,
however, an accused can allege that the complainant consented without putting himself in peril of
such cross-examination.30 If, however, the accused’s attack on the complainant’s character goes
24. R. v Valentine [1996] 2 Cr App R 213 at 223 (CCA).

25. R. v Lee (1912) 7 Cr App R 31 at 33.
26. [1996] Crim LR 406.
27. R. v Greenwood [1993] Crim LR 770.
28. Turner (1975) 60 Cr App R 80 at 83; confirmed in Chard (1971) 56 Cr App R 268; R. v D. & Others (Unreported judgment of CCA, issued 3 November
1995, full text available on Lexis).
29. [1991] 2 AC 447 (HL).
30. Selvey v DPP [1970] AC 304 (HL).
13
beyond this, in particular in cross-examination on prior sexual history, he will lose the protection
against cross-examination on prior convictions and other misconduct should he then testify.
Summary of Key Points
The Objectives of Procedural Reform
The complex procedures which are meant to be followed in child abuse investigations are intended:
• to ensure that, where necessary, information gathered by Social Services and the police about
a child can be used as evidence in court and is not rendered worthless through the means by
which it was gathered
• to ensure that all agencies involved in child protection have common expectations and an
agreed response to allegations of child abuse
• to ensure that children are not damaged by the process of investigation in addition to any
abuse they may have suffered.
Whilst the procedures now appear to have bedded down (Hallett, 1995; Hallett and Birchall, 1995),
it has been questioned whether the third purpose has been achieved. Treatment of children has
changed since the early investigations of child abuse. However, it has been suggested that children
are still damaged by being part of a process which they perceive as geared towards producing
evidence for a criminal court, when the reality is that few cases will reach that stage (Sharland et al.,
1995).
The Objectives of Legal Reform
Five objectives can be discerned in the miscellany of legal reforms implemented in 1988, 1991, 1994
and 1996:
• to eliminate the assumption that children are incapable of giving reliable evidence; this has
been done by removing some artificial barriers to admissibility
• to preserve the integrity of the child’s evidence by recording it at the earliest reasonable
opportunity
• to reduce the period of the child’s involvement in the judicial process
• to reduce the trauma which the judicial process can inflict on the child through the stress of
having to testify before strangers and the defendant about painful events
• to maintain the defence’s right to test the credibility of the child’s testimony fully and fairly.
The reforms which have been implemented thus far have been criticised in several quarters as failing
to achieve these objectives. In our case monitoring we aimed to discover whether these criticisms
are warranted, and if so, whether further statutory and procedural reform is required.
14
Chapter III: Investigating an Allegation
CHAPTER III: INVESTIGATING AN ALLEGATION
This chapter examines the investigations conducted by two police forces into allegations of child
abuse. Most but not all the cases were investigated by specialist child protection units (CPUs). The
chapter first describes the reasons why the inquiry into an allegation might not be conducted by a
CPU and then contrasts the approach of officers from CPUs with that of CID of ficers, focusing on the
effect of the CPU practice of working closely with other child protection agencies. The chapter goes
on to examine the initial assessment of cases by the police, using working definitions of abuse and
criminality. It moves from this to consider the interview with the child and the other evidence
which may be gathered during an investigation. It highlights the limitations of this evidence, some of
which may have been compounded by current procedures. Finally the chapter examines the skills
training available to the police in the study areas.
Case Allocation
We were not in a position to evaluate cases which were not referred to the police for investigation
and thus could not examine the criteria used by Social Services to distinguish the cases considered
suitable for police involvement from those that were not. Police officers in CPU2 informed us that
t h ey relied on Social Services to make an initial assessment of whether an offence had been
committed. One CPU officer in CPU2 (Force Area A) told us:
“We ask Social Services to go and see that child before we do and assess whether … an
offence has been committed and if it has, whether there is a role for the police, and, even if
there is a role for the police, whether the parents and the child want the police involved. If
t h ey do have the police invo l ved, do they understand that there will be a court
appearance?”
At the time of our fieldwork there was an arrangement that police officers in CPU1 (Force Area A)
and CPU3 (Force Area B) would be automatically informed by Social Services of an allegation that a
child had been abused. In response to the consultation paper Working Together 1998, all agencies in
the area covered by CPU3 implemented a protocol in April 1998, whereby Social Services, before
informing the police, conduct an initial enquiry to establish whether there is a need to investigate.
Responsibility For Conducting The Investigation
Child protection officers were solely responsible for investigating 49 of the 94 child abuse cases
reviewed. Twenty-one cases were investigated jointly by a CPU and CID. The CPUs in one force area
were not fully responsible for investigations before October 1997. Until that date the CPU would
conduct the initial investigation, interview the child and then hand the investigation over to CID.
The 21 cases which were jointly investigated all originated from Force Area B.
15
Table 3.1: Police units responsible for investigating sample cases
Investigating Unit Number
CPU 49 (52%)
CID and CPU 21 (22%)
CID 12 (13%)
Uniformed officers 6 (6%)
Uniformed officers and CID 2 (2%)
Unknown 4 (4%)
Total 94 (100%)
Cases which were not investigated by a CPU were gathered from the Crown Prosecution Service
(CPS). Our ‘charge file’ sample provides a picture of the origin of cases later sent to the CPS. We
were able to study 34 cases live on the CPS registers on 11 December 1996:
Table 3.2: Police source of ‘charge file’ cases
Investigating Unit Number
CPU 8
CID and CPU 11
CID 8
Uniformed officers 5
Uniformed officers and CID 1
Unknown 1
Total 34
There were several reasons why cases had not been investigated by a CPU. CPUs 1 and 2 did not
investigate cases where the child was assaulted by someone who was not looking after them. It was
expected that CPU1 and CPU2 would investigate cases where a child had been assaulted by someone
who was caring for them temporarily, for example a teacher, and CID would investigate ‘stranger’
assaults on children where the person involved either did not know the child or was not involved in
c a ring for them (P l o t n i ko ff and Wo o l f s o n, 1995b, p29). The remit of CPU3 ch a n ged at the
beginning of the fieldwork period. From that time on CPU3 investigated all allegations of child abuse
except child deaths. Child deaths continued to be investigated by CID officers because CPU3 did not
have the capacity to assign a large number of officers to one investigation.
The remit of the CPUs was not always clear to unifo rmed offi c e rs (see Hughes, Pa rker and
Gallagher, 1996, p2). Some complaints of abuse were referred to CID officers and investigated by
them. In case 50B, uniformed officers on patrol broke into a house after they were told by a
neighbour that she had heard a child screaming. They found a toddler who had been locked in his
bedroom without food for 24 hours. His mother, a heroin addict, had been unconscious during this
period. The uniformed officers referred the matter to CID who investigated and eventually charged
the mother with neglect. The lack of knowledge of the remit of the CPUs amongst officers was
considered a problem in Force Area B and towards the end of our fieldwork period the senior police
officer in overall charge of the CPUs in that area produced a booklet to be distributed to all officers in
the area, explaining the role of the CPUs.
Some investigations were conducted by non-CPU officers because no CPU officer was available at the
time. For example, in case 79A the suspect was a friend of the mother, who had taken the children
out for the day. When the children returned, one child told her mother that the suspect had touched
her indecently. The mother reported the matter to the local police, who in turn reported the matter
to CID. The CID officer who investigated the complaint explained that he had telephoned the local
CPU office to see whether they were able to interview the child, as he wanted a female interviewer.
16
H owever there had been nobody ava i l able. As the mother was anxious for the child to be
interviewed, and the CID of ficer had been trained in video interviewing, he decided to interview the
child himself.
An investigation conducted by a CPU differed in certain key respects from one conducted by CID.
The disparity in working methods may be attributed in part to the additional guidance which CPU
officers follow. CPU officers conduct a joint investigation with Social Services, following the stages
outlined in Working Together 1991. Here the best interests of the child should be paramount.
Unless it is felt that the child needs immediate protection, the police and Social Services contact
other agencies involved with the child and visit the child’s family. Decisions on how to proceed are
taken jointly. Meetings take place either face-to-face or over the telephone, depending on the
urgency of the case and the commitments of personnel.
The outlook of a CID officer is by contrast solely that of a criminal investigator: “We investigate: did
it happen? And did it happen as the witnesses say? And is there evidence there to take proceedings
against somebody?”. CID and uniformed officers were effectively cut off from the normal inter-
agency procedures in child protection cases because of their lack of experience and training in inter-
agency work. Their primary consideration was whether there was evidence to be gathered. For
example, they did not feel themselves under an obligation to consider whether future Social Services
work with the child and its family might be hampered by their investigations.
CPU officers cannot ignore such considerations. They work with Social Services (Hallett and
Birchall, 1995; Hallett, 1995). They make decisions together. They are trained together. They have
an interest in maintaining good working relationships with Social Services and they share a belief that
any criminal investigation of child abuse has to take the best interests of the child into account.
Where they feel that other considerations should take priority they may delay evidence gathering or,
alternatively, they might gather enough evidence for Social Services to act but not for a criminal
prosecution. For example, in case 14A a referral was received by the police concerning possible
physical abuse of a five-year-old boy. Social Services visited the home and saw the child’s bedroom
with excrement smeared on the walls and the floor. At the time of the referral the police considered
that the case was one which should be handled by Social Services. They did not take photographs of
the house or take witness statements from the social workers. No further action was taken by the
police. However, had that decision been reconsidered, it would have been difficult to proceed given
the earlier failure to gather evidence.
Where no criminal investigation was felt to be necessary a CPU officer might use his powers to
facilitate Social Services work. For example, in case 21A the child had been taken to hospital by
Social Services when the parents consistently failed to seek medical attention for a suspected non-
accidental injur y. The only police involvement, apart from the child protection conference, was to
use powers under s.46 of the Children Act 1989 to prevent the parents from removing the child from
hospital.
Assessing An Allegation
The police continually weighed up whether the reported behaviour amounted to maltreatment of a
child, and whether it could be proved. We saw cases where an investigation was started but where it
had been tacitly agreed, often at an early stage, that the case was not one which merited prosecution.
As one CPU officer told us:
“The awful thing is that you can almost tell when you hear the initial complaint, and once
you’ve met the family you can almost predict really whether it is going to go to court at the
end of the day. You still have to go through the processes but you get to the stage where
you can almost guarantee it’s not going to get anywhere.”
CPU officers operated on the principle that any sexual behaviour towards a child damaged that child
and was both morally and criminally wrong. In contrast, where a child had been hurt physically a
17
CPU officer would consider the context of an incident to determine whether the act might be
regarded as reasonable chastisement by a parent rather than an unprovoked assault, and then
whether the assault was part of a pattern of behaviour or an isolated incident. One CPU officer’s
account encapsulated this working principle:
“I absolutely think that [all sexual abuse] should be prosecuted, even the smallest amount
of touching. I think it is more harmful than physical abuse … because it could be
indicative of more abuse. It could be the start of a grooming process which we see time
and time again … Now the way that I look at physical abuse is that it is habitual where
the child is always getting hit and it doesn’t matter how bad the injuries are. If it is
constant then I think you’ve got an offence committed. Then you’ve got a one-off where
severe abuse has happened and I think that’s wrong. [But] if you’ve got a one-off, it’s not
their fault and provided the child’s not severely injured, then I don’t think that there is a
role for us … Realistically you would have to say that most children, if not all, get smacked
by their parents at some time in their lives. If we take the stance that if you hit a child you
ought to be punished we would get swamped by work and I don’t think we’re there to do
that.”
CPU of ficers’ perception of a difference between the way types of abuse should be treated was also
articulated in Messages from Research. This noted that “in most contexts single instances of
maltreatment seldom warrant much concern on the part of professionals. It is the chronicity and
severity of maltreatment that influence a willingness to intervene. This is not always true of child
sexual abuse, as a relatively minor, one-off event can sometimes be damaging to children and
may require a strong response from protection agencies” (Department of Health,1995, p19).
Studies indicate that a high proportion of the general population likewise believe that physical
punishment of children may be both acceptable and appropriate in certain circumstances (Creighton
and Russell, 1995, pp.28–41).
CPU of ficers felt they should consider the effect a prosecution would have on the child and on his
relationship with his family. As one CPU officer explained:
“Being in a Child Protection Unit, I think that you have to look beyond the conviction. The
conviction is not the end. We work from the premise that the welfare of the child is of
paramount importance”.
This meant that in cases where a child’s injuries were not severe, CPU officers would listen carefully
to the advice of Social Services, for example, that a criminal prosecution would alienate the child
f rom his parents and cause the parents to see any further invo l vement by state agencies as
threatening. This consideration led the police to advocate that no further action be taken in some
cases. For example, in case 83A the CPU officer wrote to the CPS asking that no further action be
taken:
“We could consider a neglect [charge] in not taking C to hospital for treatment, but Social
Services are working successfully with [the mother] at the moment and trying to keep her
and her children together and this would not help relationships. I suggest NFA [by the
police] and allow Social Services to continue with their work”.
On one occasion a police officer continued to be involved in a case following a decision not to
prosecute because he felt that some contact with the suspect could deter him from offending again.
In case 30B a 16-year-old girl, who functioned at the level of a nine-year-old, alleged that she had been
raped by another pupil at the special school which she attended. The suspect was also 16, but he
too was developmentally younger. He said that they had had sex, but that it was consensual. Having
interviewed the girl, the police officer was not convinced that “she had made it clear to this man
that she did not want it to be happening”. The police of ficer used the investigation as a warning to
the suspect “to be a bit more careful, especially when dealing with people like [the complainant]”.
18
The police viewed a conviction as a useful tool in assisting the future monitoring of dangerous child
abusers. A conviction was considered to be the way to mark the perpetrator as a potential danger,
and forewarn a gencies who came into contact with him in the future. It was thus regarded as the
right option when the abuse was felt not to be a ‘one-off’, but rather was representative of a history
of violence, ill-treatment or sexual assault. Where the work or hobbies of a suspect would place him
in daily contact with children, prosecution was regarded as a way of permanently marking him as
dangerous, should he attempt to continue in his position of trust.
Interviewing Children
Twenty-one of the 124 children in our sample were not interviewed. In two cases parents refused
permission and in one case the child herself refused to be interviewed. In a further two cases the
police decided that the allegation did not amount to a criminal offence and decided therefore not to
interview the child. The other 16 children who were not interviewed were a ged five or under and
were considered too young. Such a judgement was based on an assessment of the child’s ability to
give a coherent account of abuse and to withstand cross-examination.
Where very young children were interviewed this was primarily as an information-gathering exercise,
where the nature of the allegation was unclear. The youngest child to be interviewed in our sample
was three-years-old. Interviews with such young children were particularly difficult to conduct. The
children were both shy and easily distracted. Where a three-year-old child was interviewed (case
28B), the interview was suspended when the child repeatedly refused to say anything other than her
name.
Interviews with children were not always video recorded.
Table 3.3: Method of interviewing children in the sample
Method Frequency
Video interview 74
Audio taped 5
Written statement 23
Unknown 1
Total 103
A written statement might be taken for several reasons. The police had no option when a child aged
14 or above had allegedly been physically assaulted because complainants are not permitted by
s32A(7) of the Criminal Justice Act 1988 to give their evidence-in-chief using video interview.
Written statements were taken from a 15-year-old girl whose stepfather had allegedly tried to strangle
her (case 4A) and from another 15-year-old girl whose father had punched her in the face a number
of times, causing her to lose consciousness (case 71B). In cases such as these the division which the
Criminal Justice Act 1988 has made between physical and sexual assaults, presumably based on the
view that, after a certain age, recalling physical assault is less traumatic than describing a sexual
assault, seemed hard to justify.
Whilst allegations of sexual assault by a child under the age of 18 may be videotaped, in our sample
written statements were taken from eight children aged between 15 and 17. These were all cases in
which the child had allegedly been sexually assaulted by an acquaintance and the case was solely
investigated by CID. The investigating officers demonstrated a lack of knowledge of the provisions of
the Memorandum, although it is fair to observe that when interviewed they stated that their decision
to take a written statement would not have been altered had they known that the complainant could
have been video-interviewed. One officer told us that in his view when a girl gets to the age of 15 or
16 she is “no more vulnerable than any other witness in a rape case”(case 35A). These CID
19
officers felt that if a child was mature enough to give live testimony in the court room he should do
so, as he was likely to elicit more sympathy from the jury by so doing.
Uniformed officers also took a written statement from three children under the age of 11, all of
whom alleged that they had been assaulted by an acquaintance (cases 40A and 89A). The officer in
one case, involving two of the children, told us that “it had simply not occurred to me that they
might be videoed”.
In one area, CPU officers chose not to video interview children who disclosed long term abuse.
They felt that the limited length of a Memorandum interview would place additional burdens on a
child. They did not wish to put pressure on a child who had been the victim of prolonged abuse to
speak in one session about all that he had suffered. They also felt that a child might disclose so many
incidents that his story could not be concluded within a one-hour interview. The child’s written
statement was also believed to be clearer than it would have been on video. The police, in writing
up the child’s statement, could re-order what he had said and place all the information about one
incident together.
This practice was not replicated in the four centres which we visited briefly for comparative
purposes. In these areas CPS law ye rs re p o rted that it was not the type of complaint which
determined whether a video was to be used. Written statements were taken when a case was
investigated by non-CPU officers who had not considered the option of videotaping the child’s
evidence.
The Video Interview
A video interview conducted by a sympathetic and patient interviewer could elicit a child’s story in
circumstances where we suspected that the child would not have made a disclosure of abuse if
testifying in court. In case 62B, for example, two boys disclosed that a neighbour had committed
acts of gross indecency while playing a game with them. Another friend, a diffident nine-year-old,
was then video interviewed. After 30 minutes of open questioning the child told the interviewer
that he did play games with the defendant, but that “nothing much happened”. The interviewer
reminded the child that the interviewer had spoken to his friends. The child then spoke for a further
25 minutes about some parts of the games which he called rude. However he did not disclose any
acts which were actually indecent. He then again became hesitant and did not wish to go any
further. The interviewer repeated to the child that he had spoken to his friends and they had told
him something different. At this point the child made a very clear and detailed disclosure in free
narrative of acts of gross indecency by the suspect. This was consistent with the statements of the
other two boys. This was one of several examples of patient and careful interviewing eliciting a clear
disclosure from the child. It would have been impossible for such an interview to have been
conducted during a trial. If the child had been testifying in court, the defence counsel would
probably have objected to any further questioning after the child’s initial denial had been repeated.
However, a child’s story as relayed to the interviewer was often confused, incoherent and lacking
detail (also noted by Wade, Lawson and Aldridge, 1998). For example, in case 6A a very shy and
embarrassed child was asked to say whether there was anything that had happened to her that she
did not like. After some coaxing she said she “went to his house and when the boys were playing
with his car he then, like, locks all the doors and does all the things”. A skilled interviewer, such as
the officer in this case, has to impose a structure on the child’s testimony by using ‘clear up’
questions to clarify points the child had raised. In this case the interviewer asked the child “what
sort of things?”
Child “Things”
Interviewer “Can you give me a clue?”
Child “He pulled up my top”
Interviewer “When did this happen first?”
Child “Ages ago, years”
Interviewer “What school were you at?”
20
Child “Junior school”

Interviewer “So how old would you be?”
Child “Seven or eight”
Interviewer “How many times has it happened?”
Child shrugs
Interviewer “Once or twice?”
Child “Oh more than that”
Interviewer “Did he do anything else when he pulled up your top?”
Child “Oh yes he pulled up my skirt and mucked around”
Interviewer “Can we just talk about what he did when he pulled up your top first? What
did he do when he pulled up your top?”
As can be seen from this extract the quality of a child’s evidence-in-chief is heavily dependent upon
the skill of an interviewer to make a child’s evidence intelligible. All this has to be within the time
constraint of an hour long interview.
It has to be understood that from the outset interviewers are placed in a more difficult position than
a barrister would be when questioning a child in direct examination. An interviewer has no clear
idea of the nature of the child’s allegations before the interview begins, whereas a barrister has
planned his questions on the basis of a witness statement already in his possession. A barrister also
questions a child after the investigation is complete, whereas a video interview is conducted at the
beginning of an investigation, when the investigators know little of the complaint (MGP, para. 1.9).
Video interviews in our sample took place on average three days after referral. Officers were keen to
interview the child whilst the complaint was still fresh, and when there was less risk of the child’s
evidence being contaminated by conversations with others. However, this meant that officers had
limited information on which to plan the interview. Many of the issues which would later be raised
in court had not yet emerged and so could not be covered.
With no clear idea of the specific nature of the allegations, it is difficult for interviewers to maintain
an overview of the child’s allegations during an interview so as to ensure that all the questions that
could be asked are asked. It is very easy for interviewers to fail to pursue a point when they have a
series of questions they wish to ask and are trying to listen to the child at the same time. Such
oversights may have serious consequences for the prosecution case, as illustrated in the vignette of
case 38A in Appendix C.
Variable levels of assistance were given to the lead interviewer by the second interviewer and by the
video camera operator in identifying additional questions which needed to be asked. In the majority
of the videos we studied the interviewer used the video camera operator, a police officer, rather than
the second interviewer, usually a social worker, as a safety net. However, the video camera operator
had a number of other tasks, and these prevented him from concentrating fully on the interview. As
one officer explained:
“If you’re writing notes and trying to move the camera, and most of the time Mum is
saying ‘No, no, it wasn’t like that’ in your ear all the time, a lot of the time you won’t have
listened. … I have said to whomever was monitoring, ‘I should have asked that’ and they
have said ‘I didn’t even hear you talk about it.”
Second interviewers are in a position to listen carefully to the interview, maintain an overview of the
allegation and identify the parts that need to be covered in more detail. However, they rarely fulfilled
this role in the videos we watched. We were told by CPU officers that this supportive function was
difficult to perform well if interviewers did not work regularly together. A second interviewer
unfamiliar with the way that the lead interviewer worked could be cautious about asking further
questions lest they ask a question at the wrong time, or ask the wrong question, because they had
not discerned the strategy of the lead interviewer.
Gaps in evidence were rarely filled by a second video interview with a child. Officers believed that a
second video interview might be both harmful to the child and damaging to the prosecution case,
21
inviting suggestions that the child had been coached between the two interviews. Where the police
felt that an important matter had not been covered in the first interview, or that the child had more
to say, they would occasionally consider a second interview. In these instances they usually sought
advice from the CPS before re-interviewing, as suggested in the Memorandum (para. 1.11). CPS
lawyers told us that they would rarely sanction a second interview, and then only in circumstances
where the child had a great deal of information to impart which he had not previously conveyed. In
most cases the CPS lawyers assumed that the matter could be cleared up by asking supplementary
questions of the child at trial. They appeared to be unaware of how infrequently this happens in
practice.
Some interviewing practices were developed as a defence mechanism, to deny the defence the
opportunity to claim that an interview had encouraged a child to make a false allegation of abuse.
This reflected a national history of judicial criticism of the interviewing techniques of non-lawyers,
beginning with the Great Ormond Street Hospital cases.1 However, the strategies that interviewers
employed to counteract criticism could make their task of interviewing even more difficult. For
example, interviewers tended not to meet the child before the interview because they feared that
they would be accused of coaching the child. This meant that a great deal of effort was expended,
both in planning the interview and during the interview, in reassuring a child who was ill at ease
because she had been asked to talk to a stranger. The following was the interpretation of one CPU
officer:
“The Memorandum says that you shouldn’t really meet the child before they arrive at the
suite, and of course one of the things that we do say is: ‘You know that we haven’t met
before, have we?’ And then you just sit them down and [ask] ‘Who’s your friend, what do
you do after school, and tell me about this sex stuff”.
Interviewers gathered information about the child’s interests so that they had at least a basis for
starting a conversation. But the interviewer had little idea of the intellectual ability of the child and
the kind of questions the child was capable of understanding. Interviewers had to rely upon adults
who knew the child well to assess the child’s cognitive development. These judgements were
sometimes at odds with the interviewer’s assessment of the child after the interview. We see no
reason in principle why an interviewer should not meet the child before the interview, provided that
the meeting is recorded on video or audio-tape or with verbatim notes, so the prosecution can rebut
any suggestion by the defence that the child has been coached. The Memorandum itself does not
prohibit an interviewer from meeting the child before an interview. In fact it states that the
interviewer “should be a person who has or is likely to be able to establish rapport with the child”
(para. 2.23), whilst observing that “careful notes should be kept” of the events surrounding the
interview (para. 2.26).
In addition interviewers generally did not make notes of the specific questions that they would ask
during an interview. Although the Memorandum (para. 2.2) suggests that they may do so, officers
felt that to plan their questioning too much in advance would prevent them from approaching the
interview with an open mind, and from taking their cues from the child.
Above all, interviewers tried not to ask ‘leading questions’, suggesting a particular answer to the
child. There is no hard and fast rule about the admissibility of answers to leading questions; it
depends on the importance of the context in which the question is asked to the issues being tried,
and the degree to which the question suggests an answer to the witness in a contentious area
(Wigmore, 1978, para 769). It can require considerable trial experience to identify the boundaries of
propriety in leading a witness. Interviewers must rely on their own experience, the training that
they have had, and the guidance given in the Memorandum, but this knowledge is comparatively
limited when compared with that of a trial lawyer. Their desire not to render the main piece of
prosecution evidence inadmissible made interviewers circumspect and this was compounded by the
Memorandum which advises interviewers to avoid some questions when these would, in principle,
be accepta ble to the court. The Memorandum recommends that rather than asking directly at the
beginning of an interview whether the child knows the suspect, interviewers should try to elicit a
1. Re E [1987] 1 FLR 269, Re N [1987] 1 FLR 280, Re M [1987] 1 FLR 293, Re W [1987] 1 FLR 297 and Re G [1987] 1 FLR 310.
22
spontaneous statement from the child about his concerns about a particular person by asking: “Why
do you think we are here today?”, or “Is there anything you would like to tell me?” (MPG, para.
3.12). The difficulty with both of these neutral questions is that they can encourage the child to
speak at length about subjects irrelevant to the investigation and much of the single one-hour
interview time may be used up, leaving little time for the valuable evidence the child has to give.
One CPU officer told us about interviewing a little boy who had allegedly been abused by his
babysitter.
“I said to him: ‘Have you got any concerns about anybody?’ And he said ‘Yeah’ and so I
said ‘Well who’s that?’ and he said ‘Eric Cantona’. He said he was worried that Eric
Cantona would leave Manchester United. The whole interview was about Eric Cantona.
That was his worry.”
Judges interviewed for this project suggested that a child should be asked directly if he knows the
suspect and if there is anything that he wishes to tell the interviewer about that person, questions
which would not infringe the rule on leading questions in examination-in-chief.
A fear that leading questions could prejudice a case did not mean that they were never asked.
Leading questions were asked, in the words of one officer, “as a last resort” when an interviewing
officer decided that a child would not say anything about an alleged assault without being asked a
direct question. Some interviewers, having reached this point, did not imagine that a child’s answer
could be used as evidence during a criminal trial. Officers talked about making a strategic decision
to ask a leading question because they needed to know what had happened for child protection
purposes. However, one leading question may not make a whole videotape inadmissible. It depends
very much on the nature of the question asked. Some officers seemed unaware that the tape might
still be admissible provided they reverted to asking neutral questions.
We found that a leading question, once asked, tended to be followed by further leading questions.
This caused great difficulty if it was decided that the case should be prosecuted. If the tape was
edited to re m ove the leading questions the ch i l d ’s account might appear truncated and non-
sequential, whereas if the interviewer had returned to asking open questions after one leading
question, much of the child’s account could have remained after editing. We also saw one case in
which a tactical decision was made by defence counsel not to object to the admission of the video
into evidence and not to ask for the tape to be edited. This was case 27B, the facts of which are
described in the vignette in Appendix C. In one video an officer interviewed a child about a series of
games which it was alleged the defendants played with a group of boys to gain sexual pleasure. The
interviewer asked a number of leading questions about the games without prior disclosure, for
example: “Right there was another game that I was told about called ‘stiff willy’. Can you
remember that one?” The defence suggested that the child’s testimony had been tainted by the
number of leading questions in the interview. From the defence perspective it was deemed more
e ffe c t i ve not to oppose the admission of this evidence, there by indicating the inappro p ri a t e
techniques by which it was elicited. This serves to illustrate that failures of technique in interviewing
cannot necessarily be identified according to whether the evidence is admitted at trial.
Additional Evidence to Support the Child’s Testimony
Some evidence which could support or contradict the complainant’s version of events was gathered
in all investigations. This included findings from any medical examination, statements by witnesses
and the suspect, and in cases of sexual assault there might also be information about the timing of
the child’s first complaint. In addition the police tried to uncover any events in the child’s past
which could be used to undermine his testimony (see Chapters IV and V).
Medical Evidence
Medical examination of a complainant was not an automatic part of the investigation in our sample
cases. Seventy-three of the 124 complainants were not medically examined. In the majority of
23
instances this was because it was believed an examination could not produce any evidence. Forty-
five of the children made a complaint of sexual touching, rather than of penile or forceful digital
penetration. This would have left no physical trace. In addition, nine children who made allegations
of incest were sexually active with other partners. In the remaining cases the time period between
the last alleged assault and the complaint was considered to be too long: any injuries produced by an
assault would have healed.
Most of the children who were medically examined had been physically assaulted. In these cases a
medical examination was usually the starting point of an investigation after a teacher or health visitor
reported that a child was bruised or appeared injured. An investigation began in earnest when a
doctor stated that injuries were p ro b ably caused ‘non-accidentally’. In contrast, the medical
examination of a child complaining of sexual abuse tended to come at a later point in the
investigation. It was used to gather evidence which could support or undermine the child’s story. It
was not imagined that it could produce the central and crucial evidence in a case. This is consistent
with the guidance issued by the Royal College of Physicians which states that it is rare for any
physical sign of sexual abuse to be definitive (Royal College of Physicians, 1991). In the cases we
studied the strongest medical finding was of “signs consistent with the complainant’s description of
anal abuse” (case 41B). In other words, in cases involving allegations of sexual abuse, medical
evidence, even in the few cases in which it was available, was not definitive.
Witnesses
In 16 cases there was a witness to at least one of the assaults of which a suspect was accused. In the
majority of these cases, however, the witness was another child. Eight cases, six of which concerned
a sexual assault, involved more than one victim and each complainant had witnessed an assault on
another child. In four cases a physical assault by a parent on a child was witnessed by the child’s
sibling. Only four assaults were witnessed by an adult. Three of these may be regarded as atypical
child abuse cases. Two cases were neighbour disputes, where the suspect hit the complainant in
front of several witnesses during an argument about the child’s bad behaviour. In the other case,
case 49B, three adult witnesses claimed that they had seen the suspect, the former boyfriend of one
of the witnesses, strike his former partner’s three-year-old child and attempt to place his penis in the
child’s mouth. One witness later retracted her statement, stating that she had been pressured to
fabricate the incident (discussed further in Chapter V).
The police also gathered evidence from those who could testify to having witnessed an event which
the complainant described as occurring before or after the alleged assault. For example, in case 55B
the mother of the complainant said in her statement that she had walked into the bedroom which
she shared with her husband and found her husband lying under the covers of the bed with their
eight-year-old daughter. Her husband had shouted at her to get out of the room, which she did.
More commonly, statements by witnesses could confirm that the suspect had had the opportunity to
commit the offences because he had been the only adult with the child at the time the assault
allegedly occurred.
Recent Complaint
In sexual assault cases the police gathered information on the timing of the complaint as additional
evidence in a case otherwise heavily reliant on the word of a child. As Chapter II explains, the
spontaneous complaint of a child, made at the first available opportunity after the alleged assault,
may be admitted as evidence that the child’s behaviour was consistent with his testimony. A
distinction emerged in our sample between those who chose to complain immediately and those
who did not. The 17 children who did complain as soon as possible did not live with the suspect.
Nor, with one exception (case 38A), did they have anything to lose by complaining. By contrast,
many of the 49 children who did not complain immediately had waited until they were no longer
living with the alleged perpetrator before complaining. As the complainant in case 29B explained in
her interview:
24
“Before I left home I had no one to tell. You (the police interviewer), you’ve met my mum.
Can you imagine being able to tell her something like this?”
Suspects had often also been very kind to complainants, giving them attention which they had not
received from any another source. The children had many incentives not to complain after the first
assault. Several children acknowledged this in their interviews, stating that they only complained
after the alleged assaults became, in the words of one child (case 6A), “too hard, too much”, and
began to include digital or penile penetration.
Suspect Interviews
In 17 cases in our sample the police decided not to interview the suspect. Six of these cases were
sent to the CPS for advice. In two cases the child had said nothing in interview and in three the CPU
officer believed that the allegation had been fabricated. In the other 12 cases, all concerning
physical abuse, the CPU officer decided that it would not be in the interest of the child and his family
to prosecute and that a formal police interview with the suspect could prove counterproductive.
Interviewing someone suspected of child abuse, especially child sexual abuse, is a very difficult task.
Police interviewers are trained to obtain the suspect’s account of the period during which the assault
in question allege d ly occurred and then to identify inconsistencies within this account, or
discrepancies between the suspect’s account and that of the child. As the cases studied usually
involved people who knew each other, and who shared family routines, their accounts tended to be
very similar except, usually, with regard to the alleged incident.
The police are also trained to encourage the suspect to offer an innocent explanation for the events
that have excited suspicion. Any explanation that is offered may open up further lines of inquiry
which may in turn confirm or undermine the suspect’s version of events. For example, in case 52B
the suspect claimed during interview that the victim’s injuries were accidental and sustained when
he fell from a park swing. Police officers then conducted a house to house inquiry around the park’s
perimeter to discover whether anyone had been in or around the park at the time of the alleged
assault. They could not find an eyewitness who had seen the suspect in the park. They did,
however, find three teena ge girls who had seen the suspect torturing the victim on several previous
occasions (see the vignette in Appendix C).
The hope that the suspect might offer a version of events which could in turn be investigated was
more likely to be realised in cases of physical than of sexual abuse. In our sample, 22 people
suspected of physically abusing a child in their care were formally interviewed. Of these, five fully
admitted that they had lost their temper and hit the child, causing the injuries. A further seven said
that they had hit the child, but not as hard as the child alleged, or that this had been in response to
the child’s bad behaviour. Ten suspects denied any responsibility for the injuries, but all offered
some description of surrounding e vents. Seven said that the child had been playing and had been
hurt by accident; two said that they had only pretended to slap the child and that witnesses must
have seen them play-acting; and one said that the child had burnt herself with cigarettes in order to
get him into trouble. This may be contrasted with the 50 interviews with suspected sexual abusers,
of whom four admitted committing a sexual offence against a child and a further four tried to provide
an explanation for the child’s allegations. The other 42 claimed that the child had fabricated the
complaint. This did not mean that the content of the interviews had no bearing upon the decision to
prosecute, and this is discussed in Chapter IV.
The disparity of response between these two groups may be linked to variations in the evidence
available. As discussed earlier, an investigation into physical abuse usually began when a doctor
found physical signs that a child had been injured non-accidentally. This then placed an onus on
suspects to explain why the child for whom they were caring had signs of injury. In contrast, the
vast majority of suspects who were accused of sexually assaulting a child had little reason to offer any
account of incidents related by the child, apart presumably from the urgings of their conscience.
Unlike cases of physical assault, there was usually no medical evidence, and the suspect did not need
to explain signs of abuse on the child’s body. In fact the only element of the case which the suspect
25
had to explain was why the child had made the allegation in the first place. Blank incomprehension
would suffice.
In two sexual abuse cases in our sample the police followed the suggestion in Home Office Circular
52/1988 (Home Office, 1988) that the child’s video be shown to the suspect. Videos were shown in
these cases because the complainants had made allegations of long term familial abuse. A CPU
officer in one of the cases, 33A, explained:
“We had a lot of incidents and lots of different allegations, so we thought if we showed him
the video interviews he would know exactly what each girl was saying and, obviously for
us, we had lots to remember and it was easier to do it that way”.
The CPU officers in these two cases had also hoped that the suspect would make some admission
having seen a video of his own children in deep distress speaking in detail about the alleged abuse.
In both cases the suspect agreed that he had sexually abused his children. However, in both these
cases the officer in the case believed that the suspect had been prepared to talk about the offences
even before the interview began.
Failures to Gather Evidence
There were cases in our sample where evidence was not gathered which might have been important
in a trial. Although occasionally due to investigator error, in most of these instances evidence was
not collected because the police had decided that the case was not suitable for prosecution. As was
concluded from earlier research into the operation of the child protection system (Gibbons et al.,
1995), many children who are initially subject to an investigation are filtered out at an early stage
because a formal child protection investigation is deemed to be unnecessary. For example, in case
60B a 14-year-old, sexually active girl alleged that she had been raped. Seventy-five per cent of cases
reported to child protection agencies did not reach a child protection conference. As discussed
earlier, some cases in our study were judged unsuitable for prosecution, and the police would not
therefore gather evidence sufficient for a criminal trial. In case 14A the police were informed about
possible physical abuse of a five-year-old boy. The boy was interviewed, but said nothing about
abuse. Social Services visited the home and the child’s bedroom was seen to have excrement
smeared on the walls and floor. The child’s parents were found to be of very low intelligence, with
poor parenting skills. The police concluded that the parents were not deliberately cruel but rather
were inadequate and so ought not to be prosecuted. They did not take photographs of the house or
seek witness statements from the social workers who had seen the conditions in which the child was
living.
This kind of filtering can help the police target resources towards instances of abuse which are
deemed to be criminal, rather than requiring them to respond to each reported allegation in a
uniform manner. However, decisions made at such an early stage may limit police action in the
future. In case 14A, for example, eight months after the original investigation the police decided that
the parents should perhaps be charged with neglect and so they sent the case to the CPS for advice.
No further action could be taken because there was no evidence of the abuse and no prospect of
obtaining such evidence so long after the initial referral.
Skills Development
We were given access to the training materials used in both police force areas and attended training
sessions in Area B. It should be noted that the training in both force areas was under review at the
time of study.
CPU officers were trained jointly with social workers. The stated aim of police training in one area
was to “enable the police and social workers to be competent with regard to joint working in
investigating, planning and video interviewing children …”. This was similar to the aims of the
other area which was:
26
“(1) to enhance the mutual understanding between operational staff in police and Social
Services of each other’s role task and duties. (2) to identify and apply the specialist skills of
investigative interviewing under the specific requirements of the Memorandum of Good
Practice under the Criminal Justice Act 1991 s32A”.
The training concentrated on developing relationships between police and social workers, and on
the video interviewing of children. This meant that CPU officers were not trained in ove ra l l
investigative strategies or in how to interview suspects. Two-thirds of the officers whose work we
monitored were not CID trained and had therefore not been trained in how to organise and conduct
a criminal investigation other than through their experience in the CPU.
The training in both police areas also covered child development and child protection issues. In one
area there was a short session on child development and age-appropriate sexual behaviour. In the
other, trainees visited a local school and wrote a short report on the behaviours of children in
different age groups. The training programme also allowed for brief discussion as to the reasons why
a child might delay complaining about abuse, plus some consideration of cycles of abuse and the
grooming process. Training officers expressed concerns about their inability to explore important
areas within the time available. Most of the course was taken up with training on how to interview
children.
Training was based on the Memorandum, with its suggested sequence: rapport; free narrative; and
closed questions (see also Davies et al., 1998, p.25). Trainees learnt about the purposes of the
different stages. They then took part in mock interviews in which they looked at interviewing
techniques and analysed their own performance. Officers were told little about the basis for legal
rules which they had to follow. A lawyer from the CPS attended a training session, but this provided
very limited grounding in the rules governing admissibility of evidence.
Officers’ main complaint was that their training in investigating child abuse stopped at this point
(ibid, p.19). There was no opportunity to meet with officers of the same level of experience to
discuss problems. They would also have welcomed more legal content and refresher training which
would keep them up to date with issues in the field.
Officers were expected to develop their practice through undertaking investigations, and through
consultation with colleagues. However, they felt that they would have benefited from clear feedback
from the CPS and from the court on the evidential strengths and weaknesses of their cases. The
police were not helped in evaluating the evidence by the limited feedback which they received from
some CPS lawyers when a decision was made not to prosecute. This could perpetuate erroneous
beliefs about the legal requirements, for example that corroboration was necessarily required, a
matter further discussed in Chapter IV.
• Some cases were investigated by officers who had little or no experience in child protection
work. They were unaware of legislation specifically relating to child abuse cases.
• CPU officers did not expect to divorce themselves from considerations about the child and the
future of the child within the family. Officers tried to use their powers, in consultation with
other agencies, to promote what they considered to be the best interests of the child. This
meant that they chose not to investigate some cases which would have been pursued had the
decision been taken purely on evidential grounds.
• Officers had to decide whether the acts in question constituted a criminal offence. Any sexual
touching of a child was considered to be a criminal assault, for which there could be no
satisfactory explanation, whereas a physical assault was viewed ‘in context’ in an attempt to
determine whether the assault might be regarded as justified chastisement or at least as being
understandable.
• The child’s evidence-in-chief was usually the first time the child had spoken in detail about the
offence. The account was typically rambling and incoherent. Interviewers tried to make the
27
child’s story intelligible by asking further questions to encourage the child to clarify his story.
Interviewers could and did make the child’s story clearer to the viewer. However, the
interviewer, unlike a barrister, did not at the time of the interview have a view of the whole
case; nor had he a clear idea of the nature of the child’s allegations. The organisation of the
video interview meant that it was almost inevitable that important questions were not asked.
• CPU officers were acutely aware that the manner of gathering evidence might be criticised in
court. They were particularly concerned lest they were censured for asking leading
questions. They did not have a strong grounding in the legal rules which would enable them
to be confident in deciding what questions to ask.
• It was only rarely, if for example the child made further allegations, that he would be
interviewed again. The police and CPS expected the barrister to rectify any key omissions in
the initial interview by asking supplementary questions of the child at the trial. They seemed
unaware of how infrequently this happens in practice.
• Children who were allegedly the victims of a single sexual assault by a stranger or
acquaintance were the only complainants in our sample who complained immediately.
• Medical evidence was much more likely to be present in cases of physical abuse than of sexual
abuse. Most cases of physical abuse were brought to the attention of a child protection
agency when bruising was noted on a child. In that case the child would be medically
examined soon after the assault. In contrast, most sexual assaults would have left no physical
signs. Furthermore, allegations were often made some time after the alleged incident, when
any physical signs were likely to have healed.
• Interviewing someone suspected of child abuse, especially of sexual abuse, is an inherently
difficult task. There is little incentive for someone accused of sexually abusing a child to offer
any explanation during interview. As a result, these interviews tended to produce few new
lines of enquiry.
28
Chapter IV: The Decision to Prosecute
CHAPTER IV: THE DECISION TO PROSECUTE
This chapter describes the evaluation of evidence gathered during an investigation, leading to a
decision as to whether a case could and should be prosecuted. It first considers the roles of the
police and the CPS in making that decision. It then looks in turn at the factors which influence a
decision to prosecute cases of sexual abuse and the factors considered in a decision to prosecute
physical assault. It goes on to examine the factors which influence the choice of charge to be laid.
Finally it considers the training of Crown Prosecutors and the opportunities available to them to learn
by experience in this field.
The Decision Whether or Not to Seek Advice
It is the role of the police to make the initial decision about whether a suspect should be charged,
and with what. They may call on the CPS for advice in making this decision. Once the charge has
been laid the CPS has a duty to review the case (Prosecution of Offences Act 1985 Section 1). A
Crown Prosecutor must consider whether the evidence is sufficient to sustain the charge and
whether any additional evidence could be obtained, although the CPS has no power to direct the
police to obtain this evidence (Glidewell Report, 1998, p.37). The Cr own Prosecutor may on review
choose to amend the charge or indeed to discontinue the case.
The police made the decision not to prosecute in 12 cases in our ‘police sample’, without fi rs t
sending the case to the CPS for advice. The police also made the decision to caution in one case and
to charge in four cases. The other 13 cases were sent for advice.
Sexual abuse cases were discontinued without reference to the CPS either because the child had not
made a complaint when interviewed, or because the police officer did not feel that the child’s
account of the assault was credible. For example, the complainant in case 24B, aged 14, made an
allegation that his brother had been touching his penis over his pyjamas while he lay in bed. The
police of ficer in volved explained that he had decided that the case should not be prosecuted after
the child’s interview:
“He was either making it up or embroidering it … He found it easy to talk about the
assaults, but hard to explain things that were relatively simple, like what had happened in
the lead-up to the abuse … the kind of things that abused children are usually good at …
They get upset, clam up and can’t talk about the abuse. He was the other way round”.
The police officer knew that the child was very unhappy at home and felt that the allegation had
been fab ricated by the child so that he could leave. When the child moved to live with his
grandmother the police officer concluded that the situation had resolved itself without need for
prosecution: “In the end the whole family got what they wanted, which was [the complainant] out
of the house”.
Physical abuse cases were discontinued at this stage either because the police decided the assault
could be regarded as reasonable parental chastisement (a consideration discussed later), or because it
was felt that a prosecution would prove divisive and unhelpful to the family in the long term. The
police might decide that where there was still a chance that the parents could learn to control their
anger, it would be better if the family were supported by Social Services.
29
The police officers requested advice from the CPS in 13 of the 30 ‘police sample’ cases. In one case,
26B, which involved multiple complainants, the police officers and CPS lawyer met to discuss the
case before a final decision to prosecute was made. In the other cases an ‘advice file’ was sent to the
CPS, who then formally communicated their decision in writing, occasionally after a telephone
discussion with the officer involved. The advice files we reviewed were often substantial and clearly
took a great deal of police time to prepare and CPS time to review. A typical advice file contained
copies of video interviews, with an accompanying summary, a further summary of the suspect
i n t e rv i ew, which was generally typed, a summary of evidence form (MG5), and a confidential
i n fo rmation fo rm (MG6) which gave back ground info rmation which the investigating offi c e r
considered pertinent to the prosecution decision. If any witness statements had been obtained in
addition to the complainant’s, these were included in the file.
There were two reasons for a request for advice evident in our ‘police’ and ‘advice’ file samples. In
18 cases the police believed that the case should be prosecuted, but were unsure whether there was
sufficient evidence. In these cases the CPS lawyer either acted as an advisor, suggesting that the
police gather further evidence, or made a final decision about prosecution. However, in a further 25
cases the police had already concluded that the case could not be prosecuted and recommended no
further action when sending the case for ‘advice’. This appeared to be done so that, in the words of
one Crown Prosecutor, “they can put our name on their decision”.
We found that in only one case where the police recommended no further action did the CPS
disagree with this assessment and advise that the defendant be charged. As one CPU officer told us:
“To be honest, if we recommend no further action there’s not much chance of it succeeding
… It’s very rare that they go against our recommendations”.
It is almost inevitable that the presentation of a case will be such as effectively to invite the CPS to
agree with the police (see McConville, Sanders and Leng, 1991, p126). Equally, it was clear that
specialist child protection officers were often very experienced in this type of case and applied the
same criteria as the CPS in judging whether a case was viable. Given the time involved in preparing
an advice file, and the time taken by the CPS to review it, we were left questioning the need to seek
advice in cases where up to three police officers had already concluded that the case should not be
prosecuted.
Our visits to other CPS areas in July 1998 indicated that this use of the advice system was not
universal. We were told that some CPUs only sought pre-charge advice in cases where they were
unsure about the strength of the evidence they had gathered. One of the branches in our own study
areas received files on the same basis. When asked, lawyers linked the limited use of advice files to
good communication between the CPS and the police, giving the police a good understanding of the
criteria used by CPS lawyers. Whilst there is national guidance about what documents must be
included in an advice file (Inter-Agency Working Group on Pre-Trial Issues, 1997), there may also be
value in locally negotiated guidelines for the submission of advice files in this type of case.
Is Prosecution in the Public Interest?
As discussed in Chapter II, reviewing CPS lawyers, in making a decision whether to prosecute, are
required to apply a two stage test. They must first be convinced that the evidence is sufficient to
sustain a prosecution. Only when they have completed this task should they consider the second
part of the test – whether it is in the public interest to prosecute (R evised Code For Crow n
Prosecutors, CPS, 1994, section 10). The Revised Code provides a list of factors to be taken into
account in applying the ‘public interest’ criterion, although this list is not exhaustive and prosecutors
must decide how much weight they will give to each factor. In considering the ‘public interest’ in
child abuse cases prosecutors are required to consider the welfare of the child as their primary, but
not paramount consideration. In other words, the child’s welfare must be the CPS lawyer’s first
consideration, but this may be trumped by other factors.
30
The separation of the ‘evidential sufficiency’ and ‘public interest’ tests can be a difficult task in any
case (Hoyano et al., 1997). However, in child abuse cases the task is particularly onerous. We found
that the process of collecting and evaluating the evidence was suffused from the outset by
consideration of the child’s welfare. CPU officers consulted a number of sources, including Social
Services, prior to compiling the report sent to the CPS. For example, the supervising officer in case
83A summarised the evidence as follows:
“Generally these two little boys have had an unhappy past few months, living with a drug
addict mother and various drug addict boyfriends and hangers on. They have serious
injuries, but it is difficult to say specifically how the injuries were caused, when and by
whom … We could consider a neglect charge, but Social Services are working successfully
with [mother] at the moment and trying to keep her and her children together and this
would not help the relationship. I suggest no further action and let Social Services do their
work”.
Considerations of the welfare of the child were included in assessments of the evidence where the
child would testify in court if the defendant were prosecuted, especially where the CPS lawyer felt
that the child was particularly vulnerable because of age, psychological illness or learning difficulties.
For example, the prosecutor in case 74A explained that although she felt that the complainant, aged
five, had given a clear account of the alleged assault in his video interview, she would be reluctant to
put him through a trial:
“I would find it difficult to call a child so young … without a very strong case … If you’re
going to court you’ve got to call them, but it’s not a good idea. Going to court is an ordeal,
an enormously stressful ordeal and I didn’t have enough evidence to justify putting [him]
through the process”.
Another lawyer told us:
“We’ve got to be very careful before we put them through it all. It is in the public interest
that we’re not just doing it for political reasons; there are political pressures, but we are
dealing with real people, not just with thieves; not even adults, we’re dealing with children.
I do believe in the public interest test in this field … It is very difficult to [define the public
interest] in this context, but for example, if it’s one against one, no corroboration and a six-
year-old child, are you going to put that child into the witness box? Is it in the public
interest? There has to be something in it … If the complainant ends up getting humiliated
in court and there’s no conviction anyway … what do the public get out of it? They have to
get something out of it … We’re not just here to gratify a desire to prosecute perverts”.
On the other hand, some lawyers operated a presumption that it was in the public interest to
prosecute all cases of child sexual abuse, evidence permitting:
“it is our duty to send more cases, not less … to educate the court about what they can
reasonably expect from a child”.
Another CPS lawyer told us:
“If a person says that she has been raped, she is entitled to a trial unless there are
compelling reasons for believing that this cannot possibly end in conviction … because it is
too serious a crime to be dropped”.
Whilst acknowledging that courts were not child-friendly places, these lawyers did not believe that
this should be an overwhelming consideration in child sexual abuse cases. Provided the evidence
was sufficient, the case should be prosecuted.
31
Sexual Abuse Cases
We shall now describe the process of evidence evaluation, first in sexual abuse cases and then in
physical abuse and neglect cases. The decision to prosecute these two types of abuse is considered
separately as the evidence upon which a decision is based tends to be different. Unlike sexual abuse
cases, the decision to prosecute a case of physical abuse was not primarily dependent on the quality
of the child’s account of abuse. It relied instead on medical and forensic evidence of serious injury.
F u rt h e rm o re, in cases of physical assault the prosecutor had to decide whether the assault
complained of involved unacceptable violence and therefore amounted to a form of abuse. This
question did not arise in sexual abuse cases, as there was no concept of acceptable touching of a
child for a sexual purpose.
Sixty-seven cases in our sample involved allegations of sexual assault. Sixteen of these cases were
drawn from our ‘police file’ sample. Six of these were discontinued by the police. The CPS made a
decision to prosecute five of the ten cases sent to them from the ‘police file sample’. They also
decided to prosecute four of the 25 sexual abuse cases in our advice file sample. This section
examines the factors involved in the decision whether to prosecute the sexual abuse cases studied,
including the 26 cases in the ‘charge file’ sample, 25 of which were prosecuted.
Assessing the Complaint
The sexual abuse cases which we reviewed were often multi-faceted and it was the interaction
between several features that determined the prosecution decision. However, the complainant’s
account of the abuse was regarded as the most important piece of evidence. As one CPS lawyer
noted when giving advice on 65B:
“My initial view is that such a serious allegation should be pursued, but it relies upon the
complainant and unless she is going to be a good, reliable, credible witness there is not a
lot of point in carrying on”.
Prosecutors e valuated the strength of the complainant’s evidence in terms of the account itself, and
the demeanour of the child in telling it.
When judging a child’s account prosecutors looked primarily for clarity, coherence and the presence
of details which indicated that the complainant had experienced abuse. The clarity of a child’s
account was judged partly in terms of its precision. Prosecutors favoured cases where children ga ve
a detailed account of the assault, preferably describing a clear sequence of events. Case 22A was an
example of one such account. In it the child, then aged ten, described three specific incidents of
rape and an exact sequence of events during each assault. She said:
“He told me to undo all my buttons. I said ‘why?’ and he said it was a game. I just
thought that it was going to be a little game and I done it and then he started rubbing me
[points to her vagina] and then he took my arms out of my pyjamas and started rubbing
me again”.
The defendant eventually pleaded guilty to charges of indecent assault and was sentenced to a year’s
imprisonment. In contrast, an account was considered to be weak where a child had been vague
about the actual assault. For example, in case 1A the complainant refused to say exactly what the
suspect had touched when he put his hand up her skirt. She went on to say that she did not know
the name of what he had touched and that she could not think of a name. The CPS lawyer, giving
advice on this case, concluded:
“I do not feel that [complainant] would make a credible witness because she is reluctant to
be specific.”
A child’s evidence was also considered to be weakened when it contained inconsistencies about
facts material to the assault. In case 85A the child, in describing an incident where she alleged that
32
her half brother had raped and indecently assaulted her, alternated between saying that she had been
lying down and standing up. However, such factors were not considered in isolation and other
aspects of the child’s account might convince the reviewing lawyer that she was believable. For
example, in case 56B the child, then aged 11, alleged that she had been induced to masturbate the
defendant. At the end of her video interview she was asked whether she had any questions. She
asked the interviewer to explain to her “what was that white stuff that came out?”. The CPS lawyer
felt that this question was in itself a clear indicator that the child had been assaulted. This was
despite her confusion about some of the sur rounding details, such as in which room the incident had
o c c u rred. The defendant was prosecuted, and acquitted (somewhat to the surprise of both
barristers).
We found that prosecutors took account of time lapses between the alleged assault and the child’s
i n t e rv i ew in judging whether the ch i l d ’s account was insuffi c i e n t ly detailed. As one law ye r
explained:
“I think that it’s the nature of these kinds of family abuse type cases that in the real world
they are not going to come to light for many years, until children … are in better position
to deal with such appalling behaviour … A lot of the complaints that we are going to get
are fairly old and there’s a potential for inaccuracy and not remembering all the details
because it’s a long time ago. I accept that, because it does not go to the substance of the
case so far as I am concerned. This person is saying it happened, but may not be able to
remember what day of the week it was”.
However, any detail that the child could give about the timing of an incident and the circumstances
in which it occurred was considered to strengthen his account. For example, in case 55B a child
made a complaint of long-term abuse by her father. She described a number of assaults in vivid
detail, speaking in particular about what she was wearing and the sequence of events on days when
the assaults increased in severity. The reviewing CPS lawyer told us:
“She had given so much detail about the assaults that it would be extremely hard for her to
make up something like that”.
The decision was made to prosecute and her father pleaded guilty to specimen charges of indecent
assault.
A child’s account was viewed as being weakened when there were indications that her evidence had
been rehearsed. In case 79A a nine-year-old girl alleged that she had been indecently assaulted by a
family friend when he had taken her and some friends for a picnic. She told the police, during her
video interview, that the alleged perpetrator had wanted to get drunk so that if the police were to
question him he could deny any indecency and disclaim responsibility for his actions because of his
drunkenness. Both the police and the CPS lawyer thought that the child’s assessment of the alleged
perpetrator’s behaviour probably originated from a conversation with her mother.
We also saw three cases in which the CPS lawyer felt that the complainant’s account had been
weakened by leading questions from the interviewer. In one case the interviewer had been required,
in the words of the reviewing lawyer, to ‘kick start’ the child’s description of abuse by using a
leading question. In the other two cases the lawyer felt that the ‘clear up’ questions at the end of the
interview were leading.
Seven of the 33 advice cases reviewed were not pursued because the reviewing lawyer thought that
the complainant was lying in some part of his account. In four of these cases CPS comments
concerned material inconsistencies within the child’s account. For example, in case 65B the lawyer
stated that the child’s account was not credible as: “[the complainant] appears when questioned to
add things into her version of events to fill in the gaps”.
33
Assessing The Child’s Demeanor
All but one of the Crown prosecutors interviewed said that videotaping interviews with children had
been an important innovation in child abuse cases. It enabled them for the first time to form their
own assessment of the child’s evidence and of the child’s strength as a witness. As one lawyer told
us:
“You can only really assess the impact that a witness is going to make on the jury by
seeing [the video] … At the end of the day my job is to get a successful prosecution.
Looking at what the jury sees and what they will consider is very important”.
Lawyers contrasted the information that they could gather from a video with the picture that might
be gleaned from a child’s witness statement or from the police assessment of the child’s strengths as
a witness. Written statements could give a false sense of how articulate a child is, what the child
would be able to describe when giving evidence, and his ability to focus on one topic when
speaking. In contrast, with a video, as another lawyer explained:
“You can see for yourself what a kid is going to be like … sometimes you get a kid who you
can see right away is going to be useless, who’s running around the room, climbing over
things. On the other hand you can get one who comes across very plausibly”.
As studies conducted by the Crown Prosecution Service Inspectorate (1998, p.19) and Plotnikoff and
Woolfson (1995b, p.31) have revealed, the child’s capacity as a witness was dealt with cursorily or
not at all in the lengthy confidential information form sent by the police . However, it is important to
distinguish between cases where the child’s evidence has been videotaped and others where the
child has made a written statement. Where a child’s evidence had been recorded on videotape and
sent to the CPS for advice, the lawyer could make his own assessment of the child. Where the child’s
evidence had not been recorded on videotape, CPS lawyers relied upon the background information
sent by the police to determine whether there was anything in the child’s history which could be
used to undermine his account.
It was in the cases where the CPS lawyer had only the child’s written statement that the police
assessment of the child witness could be significant. In keeping with the findings of earlier research
(Plotnikoff and Woolfson, 1995b, p.31), the assessment which accompanied the child’s statement
was usually brief. For example:
“[The complainant] is a polite, delicately boned, pretty girl with long blond hair. She
appears genteel, polite and well mannered. She found it difficult to disclose the details
that we obtained … I do not at this stage feel that the complainant would make a good
witness”. (Case 53B)
“[The complainant] if properly prepared would make a good witness”. (Case 29B)
On the other hand, two files with written statements included very detailed notes of the police
officer’s assessment of child’s capacity to give evidence. One file, case 55B, also included statements
by the child’s social worker and the psychiatrist treating her. In a further five cases the lawyer’s case
notes included a record of further discussions between the lawyer, the investigating police officer
and the ch i l d ’s social wo rke r. Such discussions we re time-consuming and so could not be
undertaken in every case.
It has been recognised as a common problem in child protection that children who have been
abused tend not to behave in keeping with our image of an innocent victim (Parton, Thorpe and
Wattam, 1997, p.90). As Blagg has written: “Children who have endured protracted humiliation
and suffering within their families are angry, betrayed and wary … They … appear anything but
innocent. Indeed they appear anything but childlike” (Blagg, 1989, p.15). As several lawyers told
us, in reaching a decision they had to take into account that whilst a child’s account might be
credible, the appearance of the child and the way in which he told his story might make it hard for
34
the jury to believe him. The fact that a child did not sound or look like a victim was not considered
to be an insuperable barrier to prosecution, but it was a factor to be taken into account. As one
lawyer told us:
“Juries acquit sometimes because they don’t like the look of the victim … I don’t think that
is a reason for not prosecuting them … unless there are other compelling reasons for
believing that this cannot end in conviction”.
In five cases it was difficult to distinguish between the prosecutor’s own view of the child from his
judgement that the child’s manner would make it difficult for a jury to believe him. For example in
case 84A the advising CPS lawyer noted:
“She appeared quite matter of fact about the incident. We would have expected the
recounting of incidents to be a slower, more painful process”.
He went on to conclude that the child’s account might not be a truthful one. Other studies of
decision-making in child protection cases have likewise found the appearance and behaviour of a
child to be a factor in assessing the child’s credibility (Wattam, 1992, pp.154–155; Hicks and Tite,
1998).
Evidence to Support the Complainant’s Account
One CPS lawyer told us:
“You don’t need corroboration, absolutely not, no, but you do need a realistic prospect of
conviction and if you have got a person on one side saying ‘this happened’ and another
person on the other side saying ‘no, it didn’t happen’, and there is no way to judge who is
telling the truth, then the jury is going to acquit. It’s just there’s nothing for them to say we
believe this account, so it can’t be a realistic prospect of conviction. It’s got to be ‘well, we
don’t know, she might be right, but we don’t know, we’ve got a doubt’.”
Some evidence other than the complainant’s account was present in all of the 34 cases of sexual
abuse which the CPS considered suitable for prosecution. However, the strength of the evidence
considered necessary was dependent upon the clarity and consistency of the complainant’s account.
W h e re the child was considered to have gi ven a ‘good account’ of the abuse, evidence of
opportunity, promptness of complaint, or minor medical signs could be viewed as satisfying the test
of evidential sufficiency. In contrast, where the child’s account was judged to be vague or unclear,
cases were only prosecuted where there was other strong evidence to support the child’s allegation.
If the cases which were prosecuted are compared with the 27 cases which were not, the crucial
difference between them is that in the cases which were not prosecuted the CPS lawyer concluded:
(a) that the complainant’s account was weak; and (b) there was no other clear supporting evidence.
Opportunity
In 25 of the 27 cases where the decision was made not to prosecute, the only evidence that the
assault had occurred, apart from the child’s own account, was evidence that the suspect had had the
opportunity to commit it. In the other two cases the decisive factor in the decision not to prosecute
was apparent lack of opportunity to commit the offence. For example, in case 84A the complainant
described how the assaults had taken place when she had stayed the night in the suspect’s lorry.
However, her mother contradicted this, saying in her statement that the child had been refused
permission to sleep in the lorry. In the other 25 cases which were not prosecuted, evidence that the
suspect had had the opportunity to commit the alleged offence was deemed insufficient. Forty per
cent of these complainants alleged abuse against either a parent or stepparent/cohabitee, and a
further 44 per cent made allegations against a family friend who had looked after them for periods of
time.
35
There was evidence of opportunity in all the cases which were prosecuted. In four cases evidence
that the suspect had been alone with the child was considered adequate support for the child’s
account. In two of these the accounts of the pre-teenage complainants were thought convincing as
they demonstrated sexual knowledge beyond their years. In two further cases the complainants,
both aged 16, gave very clear accounts of long term familial abuse. They also described their family
life in which they had at various times been treated by their father or stepfather as a favoured child.
During these times the child described spending an inordinate amount of time alone with her father,
to the exclusion of her mother and siblings. In these cases the evidence of this time spent alone,
which the suspects in the cases did not deny, was considered to support of the child’s account of
abuse. With this evidence of opportunity, combined with the clear and detailed descriptions of the
abuse, plus medical evidence of damage to one complainant’s hymen, the decision was made to
prosecute. In one of these cases the suspect pleaded guilty on the day of trial and the other case
resulted in a hung jury. This latter case was not re t ried as the ch i l d ’s psych o l o gical health
deteriorated after the first trial and it was felt that she would not be capable of giving evidence a
second time.
Recent Complaint
The fact that a child had complained at the earliest opportunity after the alleged assault was
considered to support the child’s account in eight cases which were prosecuted. In one case, 36A,
the only evidence supporting the child’s credibility, other than that of opportunity, was that child had
made a ‘recent complaint’.
However, although an early complaint was regarded as useful evidence to support a child’s account,
delay was not deemed to undermine it when the child complained of intra-familial abuse. Several
lawyers said that they thought it unrealistic to expect a child to complain immediately. As one CPS
lawyer observed, speaking of case 53B:
“This wasn’t some stranger who attacked on the street. It was her Dad … I’m not going to
turn round and say this case can’t be prosecuted because she didn’t come running [to
complain] straight away”.
Medical Evidence
In eight cases which were prosecuted there was medical evidence of signs ‘consistent with sexual
abuse’. In a further two cases there was additional medical evidence suggesting that the
complainant, then aged 16, had had sexual intercourse with someone. There was no medical
evidence in the other 24 cases which were prosecuted. Seventeen of these cases involved allegations
of sexual touching which would have left no physical signs. Five cases involved allegations by
complainants who were sexually active with other partners, and the complainant was not examined
as a result. In one case the need for a medical examination was overlooked by the investigating
officer and in one case the child refused to be examined.
In one case, 6A, the medical evidence was pivotal in the decision to prosecute. The child, aged 11,
had made an allegation of indecent assault and rape. The case was regarded as problematic because
the complainant had been interviewed on a previous occasion, when it was suspected that she had
been abused or that she might have witnessed abuse of another child, but she made no allegation in
interview and the case was dropped. On this second occasion she was medically examined by two
doctors who each found physical signs consistent with penile penetration. Advice was sought from
counsel before a final decision was made to prosecute. The barrister recalled:
“We had a conference … where we looked at the video from the earlier case and we
recognised then that because of the inadequacies of that investigation there would be great
difficulties … Had it not been for the supporting medical evidence we would not have
taken the case”.
36
There was no medical evidence in the cases which were not prosecuted. In two cases in which a
medical examination might have produced some evidence, the complainant became too distressed
and the medical examination had to be abandoned. In two further cases the child was not medically
examined because she had delayed complaining and any signs would have disappeared. In the other
23 cases the children alleged that they had been touched in a sexual manner, actions which would
not produce any physical signs.
Other Witnesses
In five cases involving more than one complainant, one of the complainants described witnessing the
assault on another complainant. One of these cases was not prosecuted because the reviewing
lawyer felt that the two children, each of whom had learning and behavioural difficulties, had not
given clear accounts of the assaults. Four cases were prosecuted. In one the decision was made to
prosecute on the basis of what the other complainant had said. This case involved the indecent
assault of two girls aged six and the buggery of one of them. Both girls were interviewed. One said
nothing in her first interview except ‘Please don’t ask me what happened … I’m afraid to tell you
… If I tell you, everyone at school will know’. The other child, in what the reviewing lawyer
described as ‘an incredibly clear and detailed interview’, described how she had seen child A being
buggered by the suspect. Child A was re-interviewed and described two indecent assaults, but said
that nothing else had happened. At this stage no medical evidence was available. The reviewing
lawyer decided to charge the suspect with one count of buggery because child B had given such a
clear account. He felt that it was credible that child A had not described the assault, but that the
other child had. “As (A) is the one that most has happened to, she is the one that is the most
reticent and feels she has the most to lose”. The defendant pleaded guilty to two counts of indecent
assault.
In three cases, statements by witnesses about the circumstances of the alleged assault were factors in
the decision to prosecute. In case 94A the complainant described several incidents when she had
been sleeping in the same bed as her father and he had put his penis in her mouth. In his written
statement her brother described seeing his sister with her head very close to his father’s penis, but
he said that he could not see exactly what was happening. His statement was felt to lend some
support to the child’s account. The suspect eventually pleaded guilty to indecent assault.
Admissions by the Suspect
Admissions by the suspect could be divided into three catego ries: actual admissions of guilt;
explanations of the events in question; and statements made by the suspect to a third party which
would undermine his case. Two suspects, having been shown the video tape of the ch i l d ’s
testimony, admitted that the child’s account of the abuse was correct. A further suspect admitted to
taking indecent video film of children, after the video film had been seized by the police. Each of
these suspects subsequently pleaded guilty.
Four suspects tried to offer some explanation in interview as to why the child might have made the
complaint. These explanations were all regarded as unconvincing. In two cases, 39A and 40A, the
suspect, who was accused of ‘flashing’ at children, said that he had dressed in haste on the morning
of the alleged assault and had forgotten to put his penis into his trousers. In one case, 94A, the
suspect said that he had told his daughter that he was going to ‘fuck her brains out’, and had pushed
her head towards his penis, but that this was ‘army-type humour’. In the fourth case, 44B, a man
said that he ejaculated whenever he felt excited and that some semen could have fallen on his
stepson, frightening him and causing him to fabricate the allegation of attempted buggery. In all
these cases the reviewing CPS lawyer felt that the proffered explanations were unconvincing and the
suspects were charged. In one of the cases, 39A, where the suspect was accused of ‘flashing’ and
encouraging the complainant, aged five, to touch his penis, his admissions were considered to
bolster a very weak case. The complainant was regarded as a “poor” witness who was “clearly
incapable of having questions put to her”. The police, in consultation with the CPS, decided to
charge the defendant in the hope that he would plead guilty, which he did.
37
In addition, the police were influenced in three cases by statements by the suspect during interview
that he remembered an incident described by the child which the police officer felt that he would
not have remembered if he had been entirely innocent. For example, in case 55B the child, then
aged 16, described a long history of sexual assault, starting one night when she was eight and had
been sleeping with her father in her parents’ bed during a thunderstorm. Her father in interview said
that he remembered that there had been a thunderstorm eight years before, and that the child had
slept in his bed, but that nothing had happened. The investigating officer explained:
“He’d kept feeding us little snippets of information which made us think he knew too much
about this not to be invo l ved … Why is he re m e m b e ring these ord i n a ry things that
happened all those years ago?”
The police officer felt that this interview supported the child’s account. The suspect was charged
and later pleaded guilty to indecent assault.
Similar Fact Evidence
In five cases a decision was made to prosecute because a number of children made very similar
allegations about the same suspect. As the reviewing lawyer stated in case 34A: “The assaults are so
similar in [modus operandi] that we should pro c e e d ”. In these cases the weakness of any
individual witness was considered to have been overcome by the number of complaints. For
example, although the reviewing CPS lawyer in case 27B was concerned about the strength of
individual witnesses, stating “they were … under a disability, they couldn’t articulate their
concerns very well, they didn’t have a long attention span”, he decided to prosecute because “there
were so many children saying broadly the same thing that it had to be true”.
The question of the admissibility of this similar fact evidence was not raised by the defence in the
three cases we followed to trial. These involved joint counts of sexual abuse involving several
complainants, mostly respecting separate incidents, but no objection was taken by the defence. In
cases 26B and 27B, described in the vignettes in Appendix C, the criteria for joining the counts in the
same indictment were clearly satisfied because the alleged offences were founded on the same facts.
All the complainants were members of a group of children in the care of the defendants. In case 46B
the defendant allegedly molested two groups of children who did not know one another, raising a
classic similar fact evidence issue. DPP v Boardman1 suggested that there should be separate trials
of sexual offences if they were allegedly committed against different victims and there was no
striking similarity between the crimes. Because the defendant employed the same modus operandi
(befriending the children’s parents, offering to look after the children, and then enticing them with
gifts to submit to the same type of sexual acts) defence counsel concluded that he would have failed
in an application to sever the indictments or to have the similar fact evidence ruled not cross-
admissible.
Evidence to Undermine the Complainant’s Account
No case was assessed purely on the strength of the child’s account and the evidence supporting it.
CPS lawyers and the police explored any aspect which they felt would leave the child’s credibility
open to attack by the defence. Only once this process had been completed would a final decision be
made on whether the case could be prosecuted. There were five main features that were considered
to undermine the child’s account.
Previous Complaints
A child’s account was felt to be significantly undermined if he had made an allegation of sexual abuse
in the past which had not been prosecuted. Both Crown Prosecutors and the police were concerned
that this would leave the prosecution vulnerable to defence suggestions that the first allegation had
not been pursued because the child had not been believed. In case 84A a girl aged 12 alleged that
1. [1975] AC 421 (HL).
38
her mother’s boyfriend had sexually abused her. She had made two previous allegations, one of
physical abuse by her father, another of sexual abuse by a previous partner of her mother. No-one
had been charged in relation to either allegation. The CPS, when advising no further action, wrote:
“Obviously this is a case of one person’s word against another, with no corroborative
evidence, and as usual such cases are difficult to prove. In this case there are added
difficulties, namely the fact that previous complaints have been made which have not been
pursued”.
The CPS thought that the case “provided the defence with plenty of ammunition with which to
cross-examine her”.
Police officers and Crown Prosecutors expressed the view that once a child had complained and the
case had not been prosecuted, any further complaints might be regarded as irredeemably tainted
unless there was other significant evidence to support the child’s story. As the lawyer in case 35A
told us:
“[The complainant] is now in a vicious circle. She’ll probably always end up in abusive or
m a n i p u l a t i ve relationships and because of her history, unless there is some re a l
corroborative evidence or admissions, she is going to find it difficult to be believed”.
A decision not to prosecute the child’s first complaint may have been made for reasons other than
scepticism about the child’s story. For example, the complaint may have been acted upon by Social
Services. Yet both police and CPS believed that a decision not to prosecute in a previous case would
be viewed in isolation by the court, as indicating that a child had not been believed in the past. We
witnessed defence attempts to use such evidence in the two cases in our trial sample where the child
had made a previous complaint which had not been prosecuted.
Failure to Take Earlier Opportunities to Complain
A child’s failure to avail himself of opportunities to complain was also considered to weaken his
credibility. In three cases the children had not spoken about assaults by the current suspect when
they had been interviewed about an allegation relating to someone else. In another case the child
failed to complain when a police officer was in her house to arrest her stepfather on other, unrelated
matters.
C o n c e rn was ex p ressed in four cases about the fa i l u re of ch i l d ren to complain pro m p t ly in

circumstances where they had experienced a previous investigation. It was felt that the defence
would question why, when the child knew how to complain, he had delayed for some time before
making a further allegation. In case 85A the child had also received ‘keep safe’ instruction from
social services about how best to protect herself and to whom she should complain if further abuse
occurred.
Again it was felt that such prejudicial evidence could be overcome, but only where there was other
compelling evidence supporting the child. Two of the children in case 46B had failed to complain
for several months, despite the fact that they had complained immediately after they had been
sexually assaulted on a previous occasion. The case was prosecuted because two other children,
unknown to the initial complainants, had made allegations of very similar sexual assaults perpetrated
by the same suspect.
Evidence of Psychiatric Problems
Cases where the complainant had experienced a psychiatric illness were viewed with caution. There
was a reluctance to pursue cases where it was felt that the psychiatric problems pre-dated the alleged
sexual assault and the child might have fabricated the allegation as a result. As the reviewing lawyer
in case 35A explained:
39
“We would ha ve run it if we didn’t have her psychiatric background to complicate it. It
didn’t show she’d made it up. What it did show was that that was possible, or that she’d
exaggerated what had happened, that she was sometimes unable to distinguish between
fantasy and reality … It gets to the points with [a complainant’s] psychiatric background
where the judge isn’t going to take the chance of letting it go before the jury”.
A child’s psychiatric history was not regarded as undermining the case if it could be inferred that his
problems were the product of the abuse. For example, in case 55B a girl, aged 15, complained to a
teacher about long-term sexual abuse by her father. On the night of the complaint she attempted to
kill herself and she made two further suicide attempts before making a complaint to the police. She
had a history of drug and alcohol abuse and of self-harm, including scratching the words ‘slag’ and
‘slut’ into her arms and legs with razor blades. At the time of the complaint she was receiving
p s y ch i a t ric treatment. The investigating officer considered that her psychiatric history could
undermine her credibility and took a statement from the complainant’s social worker. This was to
the effect that the child was regarded as truthful and had not been known to lie about other matters.
The CPS lawyer drew on the views expressed in the social worker’s statement and by the police, to
the ef fect that the complainant was consistent and reliable in her allegations. He did not consider
that the complainant’s psychiatric history suggested that her account of repeated violent sexual
assault since the age of eight was false.
Lack of Parental Support
Lack of parental support was another factor likely to undermine the child’s credibility as a witness.
Whilst the lack of support might be attributable to many factors, including fear that a prosecution
could result in the loss of a loved or financially supportive partner, both the police and CPS felt that
the impression left on the jury by a non-supportive parent would lead them to ask themselves: if the
mother does not believe her own child, then why should we? Where the child’s account was already
considered weak, the lack of support by a parent was thought in four cases to be a significant factor
in determining that the case could not be prosecuted. They also believed that a child living at home
without family support was more likely to retract the complaint.
Hidden Agendas
Finally, the reviewing lawyer considered whether there was any reason why an allegation of abuse
might have been fabricated. Most cases in our sample involved an allegation of abuse against a family
member or friend. In three cases separated parents were involved in a residence dispute and in three
further cases there were feuds either within a family or between families. This was not something
which would overwhelm an already strong case, but where the CPS lawyer already had doubts about
the strength of the evidence it could become the factor that resulted in a decision not to prosecute.
In one case, 72B, the complainant described three incidents in which the suspect, her uncle, had
kissed her and touched her breasts. The CPS lawyer had some doubts about the strength of the
evidence in respect of one incident which the child said had happened in front of both her mother
and aunt. Having talked to the police officer about the child’s family, he resolved not to prosecute.
In interview he explained his decision:
“There was just so much in-fighting in this family, I felt that the family were using the
children to fight against each other and we would never get to the truth”.
In two cases the CPS lawyer feared that it could be suggested by defence counsel that the child had
ulterior motives for making the complaint. In case 5A a girl alleged that her uncle had indecently
assaulted her on two occasions. During her video the child said that she did not get on very well
with her uncle and that “he’s always horrid to me”. The CPS lawyer, in advising that the case should
not be prosecuted, noted:
“She also says that she does not like her uncle. Whilst this is unsurprising in view of what
she says he did, there is much in it that the defence can use to attack her credibility and
little we can do to support her”.
40
On the other hand, where a child had much to lose from making the complaint, this was regarded as
supportive of her allegation. For example, in case 38A a child aged 16 made an allegation that her
aunt’s boyfriend had attempted to rape her. The child was living in a children’s home at the time and
was hoping that she would be invited to live with her aunt. The CPS lawyer noted:
“There is no reason for this complainant to lie. In fact it appears she may lose out as a
result of the complaint”.
Cases of Physical Assault and Neglect
In our sample 33 cases involved allegations of physical assaults or neglect. Taking each sampling
frame in turn, these 33 cases comprised 16 ‘police’ files, eight ‘charge’ files, and nine ‘advice’ files.
Of these 33 cases, 14 were prosecuted (this figure includes one case where the defendant was
cautioned) and 19 resulted in no further action. The cases which resulted in a pro s e c u t i o n
comprised three ‘police’ files, eight ‘charge’ files and three ‘advice’ files.
Assessing the Physical Evidence
Medical evidence indicative of a non-accidental injury was present in the majority of cases
p rosecuted. Of the two cases which had no medical evidence, one invo l ved leaving a baby
unattended in a car, and the other (case 88A) concerned an assault by a father on his two children
some three days prior to the video interview. It had been witnessed by the suspect’s girlfriend who
was prepared to testify, and no medical examination had been conducted. In contrast, in nine of the
19 cases not prosecuted there was no medical evidence of any injuries to the child, primarily because
of the length of time between the incident and police involvement. In an additional five cases the
medical examinations did not demonstrate conclusively that the injuries were non-accidental. In five
cases the doctor had concluded that the injuries were consistent with a non-accidental injury.
In nine of the 14 cases prosecuted the injuries complained of appeared ‘significant’ (where the child
was injured causing bruises and abrasions which lasting for longer than five days) or ‘lasting’ (where
the child had been permanently disabled as a result of the attack, or where bones had been broken).
The cases were categorised by us using the descriptions of the examining doctor, where available.
The majority of cases not prosecuted (17 of 19) involved injuries judged to be relatively minor, as
Table 4.1 indicates.
Table 4.1: The level of injury recorded in cases which were or were not prosecuted
Level of Injury Number Number Not

Prosecuted Prosecuted
Lasting Injury (bone fractures, permanent disability) 1 0

Significant Injury (bruises and abrasions lasting longer than five days) 8 2
Minor Injury (minor bruises and abrasions lasting less than five days) 4 16
No injury 1 1
This evidence would appear to lend weight to the conclusion that the police are disinclined to
prosecute in those cases where the conduct might appear to fall within the scope of ‘reasonable
parental chastisement’ (see below).
Assessing the Child as Complainant
Unlike cases of sexual abuse, the testimony of the child was not considered crucial to the success of
a prosecution for physical abuse or neglect. Indeed the child was not interviewed in eight of the 14
cases prosecuted, being either too young to talk, or considered too young to testify.
However, although the child’s testimony was not considered to be vital, the child’s behaviour before
the assault could be significant. In ten out of the 19 cases not prosecuted, concern was expressed
41
that the child’s unacceptable behaviour might be considered to have precipitated the adult violence.
For example, in case 31B a nine-year-old boy was being cared for in a foster home. The foster mother
tried to make him have a bath and the child resisted. During the course of the scuffle the child head-
butted the foster parent in the face, loosening her teeth. The foster parent then grabbed the child by
the neck and slapped him at least twice on the face, leaving bruising. There was also some question
as to whether the foster parent had deliberately banged the child’s head on a table. She was not
prosecuted as it was felt that the child had provoked the assault. The CPS lawyer concluded:
“There is not sufficient evidence to convince a court beyond reasonable doubt that [the
suspect] assaulted [the child] without any provocation” .
Conve rs e ly, cases were more likely to be prosecuted where it was considered that the child’s
behaviour could not have warranted their being struck. In our sample this judgement was partly
linked to age. It was thought that the behaviour of young children could never war rant a physical
assault which would leave bruising. As the officer in case 11A put it:
“In this case the child was five and no way could you condone … a five-year-old being hit
by someone just because the child was misbehaving … Now when you’re looking at a 15-
year-old girl, if a parent is at the end of his tether, which all parents must get to with
teenagers, it would be silly to think that the police would intervene every time a parent hits
a child”.
In assessing these cases the police and Crown Prosecutors were attempting to predict whether a jur y
would regard the assault as ‘reasonable parental chastisement’. The defence of ‘reasonable parental
chastisement’ has been available to a carer accused of assaulting a child since R v Connor (1836),2
and is enshrined in the Children and Young Person’s Act (CYPA) 1933. Juries have found that assaults
using a cane3 or a slipper leaving scarring to be reasonable chastisement in light of the child’s
behaviour (Newell, 1994). In the cases which we studied, police and Crown Prosecutors considered
carefully whether in the circumstances a jury would consider the assault to be lawful chastisement.
This was considered a possible defence even where the ‘chastisement’ had every appearance of a
fight. Government commitment to clarify the law (Gibb, 1998), following the findings against the
UK in the European Court of Human Rights,4 may change the way in which these cases are viewed
by the police and CPS. However, it is more difficult to know how fundamental an effect it may have
on juries. Attitudinal research conducted in Australia and the United States on doctors (Warner and
Hansen, 1994), teachers (Tite, 1993) and students (Dukes and Kean, 1989) found that assaults were
considered less abusive when the child was seen to have provoked it.
Assessing the Suspect
T h e re appeared to be no direct correlation between an admission by the suspect of some

wrongdoing and a decision to prosecute. In six cases which were prosecuted the defendant had
admitted something. This ranged from admitting the assault to an admission that they had failed to
seek medical attention for a child who had injuries. In a further two cases the defendants admitted
that they had had a confrontation with the child, but denied assault. Admissions were also made in
four cases which were not prosecuted. In case 3A the suspect initially admitted to the police that he
had hit his teenage son with a stick. However, when formally interviewed he denied this. In case
31B the suspect admitted slapping the child, but explained that this was done only in order to calm
him down after he had head-butted her. In case 23A the suspect admitted slapping her elder child
and occasionally leaving the two children home alone. In case 71B the suspect admitted slapping her
daughter, but explained that this was because she was trying to stop her pulling her hair during an
argument.
The crucial factor in the prosecution decision was not the presence of an admission of an offence by
the suspect, but a judgement by the police and CPS as to whether he was likely to commit a similar
offence again. The decision was influenced by whether the suspect had previously been reported to
2. R. v Connor (1836) 7 C& P 483.

3. A. v UK (100/1997/884/1096) 23rd September 1998.
42
the police and Social Services for assaulting the child, and by whether Social Services was intending
to work with him in future. This was cited as a reason not to prosecute in eight cases. For example,
in case 23A the police and Social Services conducted a joint investigation into the alleged assault and
neglect of two children, aged nine years and nine months respectively. The police requested pre-
charge advice from the CPS. The CPS replied recommending no further action, saying:
“It is clear that [the suspect] has committed offences against both children … We must look
at the interests of the children … Fortunately the children do not appear to be at risk at
present … Social Services have intervened … A prosecution is unlikely to achieve anything
… [The suspect] has been offered practical help by Social Services”
Conversely, where the defendant was known to either the police or Social Services because he had
previously been investigated for either physically abusing or neglecting a child, he was more likely to
be prosecuted. In eight of the 14 cases prosecuted the suspect was already known to the police
because of previous assaults on his children. In these cases the suspect had not been prosecuted for
the first assault either because it could not be proved that he had committed it, or because it was
hoped that with Social Services’ help he would learn to control his temper. However, when faced
with further incidents it was decided to prosecute. Case 8A involved a father who was trying to
cope with three teenage children after his wife had left him. One of the children was seen at school
with some finger-tip bruising, consistent with being grabbed. The police officer explained why he
felt that this man should be prosecuted:
“ Th e re had been a previous allegation … The chap, at that time, admitted doing it
and...basically as he’d agreed working with Social Services we decided not to prosecute …
Then [the child was injured again]. It wasn’t a particularly serious injury to the child, but
it was obviously something [that] would just keep on happening. So he was charged”.
The father later pleaded guilty to a charge of common assault.
Dual Suspect Cases
The identification of the perpetrator of the assault was a particular problem when a very young child
had been physically assaulted, having been looked after by a number of different people. Even if the
time when the child had been injured was pinpointed, without a confession or a witness to the
assault the police could not charge anyone with causing the injury. As one police officer explained:
“If you have a victim without a voice then you have got to prove that whoever had
responsibility for that child is the person who caused that injury … The CPS will not
prosecute a case where there is a possibility someone other than the offender has caused
that injury”.
In one case the father of the children eventually made a statement implicating his wife and she
pleaded guilty to common assault. In four other cases, where the police felt that they would never
be able to identify who had caused the child’s injuries, one or both of the child’s parents was
prosecuted for neglect (Children and Young Persons Act 1933, section 1). The charge in these cases
rested on the fact that the parent or a carer had not immediately taken the child to hospital when
they discovered that he had been injured. In case 83A the mother of two children, aged six and
three, was known by the police to be a drug dealer. A large number of adults visited her home every
day to buy drugs. The mother’s boyfriend and a male lodger also lived in the house. The three-year-
old child was taken to the hospital by his father, who had noticed during a contact visit that his arm
was swollen. It was found that the child had an old, healed fracture of his collar-bone and two recent
breaks in one arm. The mother and her boyfriend denied hurting the child. They were finally
charged with neglect, reflecting the fact that they had not taken the boy to the hospital when they
first noticed that his arm was hurting him. The mother pleaded guilty to neglect and her boyfriend
was awaiting trial when our fieldwork ended.
43
The above difficulties are part of a wider problem which has been publicised by the NSPCC. The
charity has campaigned for an urgent review of the law following a number of child deaths in which
the police have not been able to establish which of a couple struck the fatal blow. As a result, both
have been charged with neglect under the CYPA, section 1, rather than with murder (NSPCC, 1997).
The suggestions for reform mooted so far relate solely to the reform of the law of murder (Hempel,
1998) and could not be used in cases such as the ones we monitored. However, it seems clear that
any review of the area should also consider the criminal liability for non-fatal injuries when two
suspects are involved.
Some police of ficers whom we interviewed did not believe that they could charge two parents who
had sought treatment for their child, even where the child’s injuries were clearly non-accidental.
Where both parents admitted looking after the child at the time the injuries occurred they could still
be charged with wilful assault and ill-treatment under the CYPA, section 1. This would require
evidence that the injuries had been caused non-accidentally, the defendants were jointly in charge of
the child at the material time, and they are unable to give any credible explanation as to how the
child came to suffer the injuries.5
The police officers involved in three of these cases argued that the cruelty and neglect charge did not
reflect the seriousness of the injuries that the child had suffered. In case 52B an 18-month child was
p e rm a n e n t ly brain damaged. In another, 50B, a thre e - year-old boy had multiple bruises and
lacerations in addition to large septic sores on his hands where he had been burned by cigarettes. In
the third case, 83A, the child’s arm had been broken. Two of these defendants received non-
custodial sentences. The third was also dealt with for a spate of burglaries, and was sentenced to a
total of 30 months imprisonment.
Entering A Plea
Where a suspect was charged with a particular offence, the question remained whether it would be
better to accept a guilty plea, commonly for a lesser charge, or to risk losing a case when it goes to
trial. In the cases in our sample which resulted in the defendant being charged, there were roughly
equal numbers of guilty and not guilty pleas. In cases involving a charge of physical abuse or neglect,
nine of 11 defendants (82%) pleaded guilty (the other two cases were still ongoing). In cases
involving a charge of sexual abuse, 13 of 31 defendants (42%) pleaded guilty (four cases were still
ongoing).
Where guilty pleas were entered, half were pleas to a less serious charge. In six of the nine physical
assault cases where the defendant pleaded guilty, he pleaded guilty to a less serious charge(s) than
the original. Of the 13 guilty pleas entered in respect of sexual assaults, four involved pleas to
significantly less serious charges.
CPS acceptance of pleas to downgraded charges was influenced by a number of considerations. In

sexual assault cases it might reflect a desire to spare the child the ordeal of appearing in court (see
also Wattam, 1992, p142). For example, in case 22A the Crown accepted pleas to three counts of
indecent assault when the defendant had originally been charged with three counts of rape. The
pleas were offered on the morning of trial. One of the reasons the prosecution gave for accepting
these pleas was to spare the complainant and two other child witnesses the ordeal of testifying in
court. However, in physical assault/neglect cases a guilty plea was accepted where the child had
been cared for by a number of different people and the prosecution was concerned that the
d e fendant might successfully claim that the injuries had been caused by someone else. An
acceptance of a downgraded plea reflected a decision on the part of both the police and CPS to opt
for the safety of a conviction on some charge rather than risk losing the case completely.
Skills Development in the CPS
It is CPS policy that child abuse cases are dealt with by lawyers and caseworkers of appropriate
5. Marsh and Another v Hodgson [1974] Crim.L.R. 35 (QBD).
44
experience (CPS Service Standards). In each branch studied there was a group of lawyers who
evaluated most of the child abuse cases (see also CPS Inspectorate, 1998, para. 7.28). The remaining
cases were allocated to other lawyers in the branch for whom the assessment of a child abuse case
was an occasional task. Specific training has been available since October 1995 and any CPS lawyer
i d e a l ly should have attended the course befo re wo rking on this type of case. Howeve r, we
interviewed some CPS lawyers who worked on child abuse cases even though they had not attended
the child abuse training course.
It is official CPS policy that no lawyer should deal solely with child abuse cases. Lawyers evaluating
child abuse cases had a full caseload of other work. Most found no acknowledgement in their work
allocation that child abuse cases were particularly time-consuming. This was despite the fact that a
file could include several long videos. As one lawyer put it:
“I’m doing four days a week in court. All this child abuse has to be fitted round that,
together with exactly the same workload as everyone else has, and the murders, the GBHs
and all the other cases – no insurances, no MOTs etc.”
The time which lawyers had to give to preparing child abuse cases reduced their opportunities to
learn directly about the fate of cases on which they had worked. In many cases the CPS lawyer lost
touch with the case from the point of transfer or committal to the Crown Court, when the file was
handed over to the caseworker. One lawyer told us:
“Generally I don’t even know the results of the cases. That is just a stark illustration of
how little I’m involved with matters once they’ve left the Magistrates’ Court”.
It was rare for a CPS lawyer in the branches we studied to have time to attend a conference with
prosecuting counsel. As one lawyer told us while discussing a specific case:
“I ask to go to the conference and then the clerk fixes it for a day I’m in court and they
won’t move it and I haven’t got anyone to cover for me”.
In the CPS branches where we conducted this research there was no formal mechanism by which
prosecutors would be advised of the evidential rulings made, nor of the outcome of those cases
which they had approved for trial. Lawyers were notified of a verdict only if there was an ordered or
d i rected acquittal. In some of the cases which we rev i ewed neither the prosecutor nor the
caseworker could explain the reasons for certain evidential rulings at a PDH. CPS lawyers who were
particularly committed to child abuse work tried to find out what had happened in their cases, but as
they did not attend Crown Court trials they had to rely upon the caseworker for information. They
told us that often they could not understand from the caseworker’s explanation or their file notes
why certain rulings had been made. Also, caseworkers attending a PDH or trial had not necessarily
been assigned that particular case. They might attend up to 30 PDHs in a single day. Their
knowledge of the files was understandably limited. The CPS intends that once their lawyers are
authorised have rights to appear in the Crown Court they, rather than the trial barrister, will appear
for the prosecution at the PDH (Glidewell Report, 1998, p.138). This could improve the lawyers’
understanding of the rulings made.
Even when attending a trial, a caseworker could be responsible for more than one case and have to
flit from one courtroom to another, trying to deal with problems as they arose. In none of the trials
which we attended did a caseworker attend throughout. Sometimes different caseworkers attended
different segments of the trial. The policy in the CPS branches we studied was that caseworkers
should lea ve after the presentation of the prosecution case, missing the testimony of the defendant
and any defence expert witness. The recommendation of the CPS Inspectorate that caseworkers
should attend cases involving child witnesses for the first day of trial and “wherever possible for at
least the critical stages of cases involving child witnesses” (CPS Inspectorate Report para. 9.28)
would, even if it were followed, still not ensure that the caseworker was fully conversant with all the
legal issues in the case.
45
• The most crucial piece of evidence in sexual abuse cases was the child’s account. In judging
the evidential strength of this account the police and CPS looked for clarity, detail and
consistency.
• An assessment of the child’s demeanour in giving his account included a consideration of
whether the child’s manner of describing the abuse was in keeping with our image of how an
abused child ‘should’ behave in an interview.
• CPS lawyers found the introduction of videotaped testimony enormously helpful in their
evaluation of the strength of a child witness, albeit very time-consuming to review.
• Some evidence supporting the child’s account was felt to be necessary before a case of sexual
abuse could be prosecuted. However, the strength of the additional evidence required was
dependent on the clarity and consistency of the child’s account. Where a child’s testimony
was considered to be exceptionally clear and detailed, evidence of opportunity might be
considered sufficient. When the child’s account was vague or inconsistent, a case would only
be prosecuted where there was other strong evidence supporting the child’s account, such as
clear medical signs or testimony from other children who were making similar allegations.
• Cases of alleged sexual abuse were examined to see whether there was anything in the child’s
past which could be used to suggest that she was an untruthful or otherwise unreliable
witness.
• In contrast, the child’s account had little weight in a decision to prosecute physical abuse.
Cases were most likely to be prosecuted which had medical evidence of a serious assault on a
young child and where the suspect had previously been suspected of an assault on a child.
• Conversely, cases of physical assault were less likely to be prosecuted when the complainant
was older and had behaved badly in the prelude to the assault. In these cases it was
considered that the suspect could raise the defence of ‘reasonable parental chastisement’.
Cases were also less likely to be prosecuted when Social Services were working with the
suspect to modify his behaviour.
• The police and CPS viewed a court appearance as an arduous, painful experience for the child
and this could lead to the conclusion that it was not in the public interest to prosecute.
• However deep the reservoir of accumulated experience upon which prosecutors draw in
deciding whether the evidential sufficiency criterion is satisfied in a particular child abuse
case, that experience remains, to some extent, unvalidated because of their lack of
involvement in these cases once transferred to the Crown Court.
46
Chapter V: The Court
CHAPTER V: THE COURT
This chapter examines the cases in our sample which successfully passed through the two initial
evidential filters of the police investigation and the CPS decision to prosecute, and focuses on the
t reatment of that evidence at court. There are two phases of decision-making in court: the
determination of the admissibility of the evidence by the judge in pre-trial proceedings or in a voir
dire (a hearing in the absence of the jury at the trial); and the evaluation of the sufficiency of the
admitted evidence to support a conviction.
Child abuse prosecutions present in acute form two common evidential problems: the case typically
becomes a contest of credibility between the complainant and the defendant; and the evidence of
the alleged victim may be undermined by the ordeal of testifying rather than by intrinsic weaknesses,
making it difficult for the trier of fact to judge the conflicting stories. For child witnesses, then, the
p e rs u a s i veness of their testimony can be significantly inf luenced by the mode by which their
evidence is presented.
Overview of the Contested Cases Which Reached Court
A total of 23 cases in our research sample went to trial, two in the magistrates’ court and the
remaining 21 in the Crown Court. This chapter focuses on proceedings in the Crown Court in two
court centres. Details of some of these cases appear in the vignettes in Appendix C. Of the 21
Crown Court cases only three involved physical abuse (cases 43A, 52B and 59B), while in another the
accused was charged with both common assault and indecent assault on a girl aged three (case 49B).
The remaining 17 cases concerned allegations of sexual abuse. As previously noted, this is striking
given the much higher proportion of physical abuse cases in our sample of police investigations.
Cases Which did not Reach the Jury
Of these 21 cases, five were not tried, for the following reasons:
• in one case the defendant absconded before trial

• two cases resulted in ‘cracked’ trials when the CPS accepted guilty pleas to less serious
charges
• in two other cases the judge ordered an acquittal where the prosecution tendered no
evidence. In case 49B the prosecution had to withdraw the case on the day of trial when one
of the eyewitnesses retracted her evidence. In case 35A (discussed in Chapter IV) the
defence’s request for the complainant’s medical records prompted the prosecution to stop the
case because of concerns that her history of hospitalisation could be exploited to undermine
her credibility.
The remaining 16 cases proceeded to trial.
Of these 16, two cases resulted in directed acquittals at the close of the prosecution case, meaning
that the trial judge directed the jury to acquit on some or all counts after the prosecution had closed
its case. This was on the basis that there was no case for the defence to answer. Where the strength
or weakness of the prosecution evidence depends on an evaluation of a witness’s reliability, then the
judge should allow the case to go to the jury.1 Drawing the line between what is capable of being
1. Galbraith [1981] 1 WLR 1039 (CCA).

47
credible and what is so fatally flawed as to warrant a directed acquittal is especially difficult where
the primary prosecution witness is a child. This was exemplified by case 29B where the defence
contended that the complainant was an attention-seeker and a chronic liar. While she admitted
telling lies about unrelated matters, she firmly maintained her allegations of sexual abuse against her
stepfather. The trial judge nonetheless concluded that the factors weighing against her credibility
were too great to allow the case to go to the jury. This outcome would have been difficult for the
police or CPS to predict as other cases where the complainants had admitted telling some lies, such
as case 27B, were left to the jury to return its own verdict. In case 53B the judge directed the jury to
acquit the defendant on the count of rape of his daughter because the complainant testified that the
offence occurred at a later date than was stated on the indictment.
In the four cases where the Court entered ordered or directed acquittals, evidential weaknesses were
cited as justification for the decision. In two cases these weaknesses were apparent before the start
of the trial.
Cases Which Reached the Jury
Of the 14 cases which were allowed to go to the jury on some or all counts, the following verdicts
were returned:
Table 5.1: Verdicts in cases reaching the jury
Outcome Number
Acquittal on all counts 7

Guilty on all counts 2
Guilty on some counts 3
Hung jury 2
Pre-Trial Proceedings
Transfer of the Case to the Crown Court
In a case where a child is the alleged victim of, or a witness to, a sexual offence or an offence of
violence or cruelty, the Director of Public Prosecutions may issue a notice of transfer removing the
case from the jurisdiction of the magistrates’ court (CJA 1991 s.53). The case then goes directly to
the Crown Court, bypassing committal proceedings, and is to be “proceeded with without delay by
the Crown Court” (CJA 1991 s.53(1)(c)). Previous studies in 1993 and 1995 had criticised the CPS
for under-use of the transfer provisions, suggesting that this was a major cause of delay (Plotnikoff
and Woolfson 1995a, pp.46–49; Plotnikoff and Woolfson 1995b, pp.35–37, 48–49). The transfer
provisions were employed in 16 of the Crown Court cases in our sample, with the committal
procedure being emplo yed in the other five cases. This suggests that the transfer procedure is now
fa i r ly ro u t i n e ly used in our subject areas, as elsew h e re (CPS Inspectora t e, 1998, pp.25–26);
nevertheless, as illustrated in Figure 5–2, in general this appeared to make little if any difference to
the speed with which cases proceeded to trial.
Directions Hearings
The Pigot Committee env i s aged that pre - t rial hearings would expedite child abuse cases by
determining issues which could affect the child witness (paras. 2.25, 2.27–2.29). Under the current
regime the CPS is required to give notice of application to use the video recording and/or a live
television link within 28 days of committal or transfer from the magistrates’ court. Since 1995 such
applications are normally supposed to be heard at a PDH so that the child will know well in advance
of trial how he is going to give evidence.
We identified three difficulties with the operation of PDHs. First, the availability of video evidence
and the videolink for a particular child witness may remain undetermined until the first day of trial
48
(also noted by CPS Inspectorate, 1998, paras.8.61–8.64; Home Office Special Conference Unit, 1995,
p.9). Of the 16 cases which went to trial in the Crown Court, in three the admissibility of some or all
of the videotaped interviews was not determined before the first day of the trial. The mode by
which the child witness would testify had likewise not been determined. Secondly, in at least seven
of the cases which went to trial, more than one PDH was held, and sometimes three or more were
required. This obviously delayed scheduling a trial date. Thirdly, orders at a PDH to transcribe or
edit videotapes had not been complied with, requiring further PDHs or, if not caught in time, causing
problems at the trial. In case 56B the 11-year-old complainant was sent home from court because the
CPS had not had her videotaped interv i ew edited as directed at a PDH two months earlier,
necessitating a one-day adjournment of the trial. In case 57B the agreed editing of the videotape also
had not been done before trial but the error was not detected until the unedited tape had been
played to the jury; consequently, an inadmissible hearsay allegation of sexual assault by the defendant
against another girl was heard by the jury. The error would have provided an obvious ground of
appeal had the defendant been convicted.
There were two main causes of these various difficulties with PDHs. First, barristers handling child
abuse cases assert that the current fee for preparation for and attendance at a PDH is paltry,
encouraging them to give priority to more lucrative matters. Issues were often deferred until trial
because trial counsel did not attend the PDH. This was notwithstanding the practice rules which
state that “it is expected that the advocate briefed in the case will appear in the PDH wherever
practicable”.2 Returned briefs could mean that any decisions made by the first counsel were
revisited. Counsel had little incentive to give time to thorough preparation for a PDH (Home Office,
1997, p.39). It was common for one or both counsel not to have watched the video before the PDH,
so that any issues had to await another PDH or be put over to the trial. Secondly, the PDH court
schedule did not easily accommodate child abuse cases, particularly the need for additional time for
preparation and argument. Defence counsel complained that PDHs were scheduled before the CPS
had made full disclosure, particularly of medical evidence. Often the presiding judge had 20 to 30
PDHs scheduled for the same day and had not watched the video or read the papers. She was then
reluctant to embark on detailed consideration of difficult issues, particularly if any ruling would bind
the trial judge.
In summary, the opportunity presented by the PDH mechanism for efficient preparation of cases
involving child witnesses was often wasted. Hopes that PDHs will be more effective pending
changes to make pre-trial rulings binding on the trial judge (CPIA 1996, s.40) may be frustrated unless
the above obstacles are also addressed.
In our visits to other areas we identified three strategies for overcoming the problems with PDHs.
One area recently established a pre-trial review before the trial judge, held seven to 14 days before
the trial, to confirm compliance with orders made at the PDH and to ensure that the case could start
on time. In a second centre the court expedited the trial, expecting that some applications may have
to be made at the start of the trial. The child was not asked to come to court until the afternoon of
the first day. In a third centre one judge made few concessions to barristers who sought orders at
trial, and gave a very short time for compliance with those orders. He hoped that as a result of this
solicitors would ensure that the case was ready. The latter two solutions could require the police to
edit the videotape and transcribe it in less than 24 hours. Neither solution alleviates the uncertainty
for the child witness about how he will testify.
Applications for Third-Party Disclosure
We identified five cases where the defence applied for disclosure of Social Services, education,
therapy or medical records pertaining to child witnesses. The number of requests for third-party
disclosure could not be definitively ascertained because they were not consistently recorded in the
CPS files, and it was often by chance that we discovered from the barristers we interviewed that
applications had been made. In case 27B the issue of disclosure of Social Services records pertaining
to eight child witnesses was decided on the first day of trial because of a tardy application by the
defence, but in the other cases applications were dealt with at PDHs.
2. Practice Direction (Crown Court: Plea and Directions Hearing) [1995] 1WLR 1318.
49
It appeared that in some of these cases the third party complied with the defence request without
need for a court order. In others the third party appointed counsel to object to disclosure; those
counsel would review the files, often at short notice, and identify documents which might be
disclosable. The judge would then inspect these. One difficulty with this procedure is that counsel
for the third party is unlikely to be fully briefed in the issues in the criminal trial, and the defence is
unable to participate in the process to establish the relevance of the information beyond its initial
application. In case 57B a counsellor attended court with the complainant’s therapy records, but
without a legal representative; the trial judge reviewed the file and made his ruling without the
benefit of any legal argument.
The re l evance of the particular info rmation sought va ried, but essentially the purpose of the
applications was to test the consistency and reliability of the child witnesses. In case 6A the defence
requested records from a local education authority showing the complainant’s learning difficulties,
hoping for information about her ability to remember and narrate events accurately. Defence counsel
had not received a reply by the trial and gave up without a formal application, instead attempting to
elicit this information from the child in cross-examination. Limited access was however granted to
the child’s Social Services records, and information contained therein was used in cross-examination.
In two other cases the applications were denied. In case 57B the defence argued that the therapy
records were material to the complainant’s credibility because her complaints against her stepfather
escalated from indecent assault to rape after six counselling sessions. This required the trial to be
a d j o u rned while defence counsel sought further info rmation about how the rape allegations
emerged, and about whether the therapist had employed discredited techniques to encourage
disclosure (see British Psychological Society, 1995; Brandon et al., 1998 ). In case 29B the defence
sought specific Social Services records which, it was claimed, would reveal that the complainant had
made previous allegations of physical abuse against her stepfather which were investigated and found
not to be credible. Further, it was claimed that she had not complained of sexual abuse to her social
worker when she had ample opportunity to do so. In both cases the applications were denied
because the evidence sought was relevant only to the complainant’s credibility, and so was not
subject to disclosure under the rule in Derby discussed in Chapter II.
The rules governing third-party disclosure should not be viewed merely as a matter of procedure;
they must mediate between the conflicting interests of the defendant and the complainant, and so
hold significant implications for the outcome of the trial and the perceptions of the participants that
the process has been fair. On the one hand the defence can argue that it should be entitled to access
to evidence in the hands of a third party which, if it were possessed by the prosecution or could be
obtained by other means, would be regarded as a proper means of testing the credibility of the
complainant in cro s s - examination. The counter-argument is that the defence should not be
permitted to invade the complainant’s privacy by trawling through confidential records in the hope
that some information, however tenuous, might emerge which could be used to attack his credibility.
Also to be taken into account are the administrative burdens and expense imposed on third parties.
Underlying these disclosure issues is the conundrum: what evidence is logically probative of whether
a witness is worthy of belief?3
While these concerns feature prominently in cases where the complainant of sexual assault is an
adult, they take on rather different significance where the victim is a child who has little or no
control over his mode of life and family circumstances (Lord Williams of Mostyn,1996, p.125), who
may have been the victim of previous abuse, and who is likely to be perplexed and intimidated by
being cross-examined on matters apparently unrelated to the charges.
It is arg u able that the current rule propounded in D e r by 4 does not provide a pri n c i p l e d
reconciliation of these competing interests, and operates arbitra ri ly. In the normal course of a
criminal trial it is considered entirely proper for the defence to use previous accounts of an incident
to test the reliability or consistency of a witness, or to use past misdemeanours to challenge his
3. In Canada these issues have attracted great controversy, and are adjudicated in the constitutional context of the accused’s right to a fair trial and full answer
and defence, and the witness’s rights to equality and privacy: O’Connor v The Queen (1995) 130 DLR (4th) 236 (SCC); L.L.A. v A.B. (1995) 130 DLR (4th)
422 (SCC); R. v Carosella (1997) 142 DLR (4th) 595 (SCC). The constitutional validity of the latest legislative solution, enacted in 1997 [Criminal Code of
Canada ss.278.1–278.9] will be tested shortly before the Supreme Court of Canada in R. v Mills [on appeal from [1997] A.J. No. 891 (Alberta QB)].
4. [1995] 4 All ER 526 at 545 (HL).
50
veracity. Since Derby such information can be withheld from the defence if it is contained in records
held by third parties. Thus if the complainant gave his first detailed account of the alleged assault to
a police officer, that information must be disclosed to the defence and any discrepancies can be
tested in cross-examination, but if he gave the same information to a counsellor, it need not be
disclosed.5
Several lawyers whom we interviewed, whilst agreeing that the defence should not be permitted to
embark on ‘fishing expeditions’, nonetheless expressed concern that the current law could produce
miscarriages of justice. Some judges also expressed disquiet about the rules relating to third party
disclosure, indicating that they had seen information on local authority files which they considered
to be crucial to the child’s credibility but which was undisclosable under Derby. Two judges told us
that they would hint to defence counsel the ave nues they might need to pursue, based on
i n fo rmation which they had seen on the file provided to the court. This seems to be a fairly
widespread practice (Denison, 1996, p.288). In some cases where disclosure was denied (such as
case 29B) the defence nonetheless obtained part of the information sought from other sources, for
example, where a family member who knew of the complainant’s history co-operated with the
defence. The availability to the defence of information bearing upon the reliability of the child’s
testimony depends therefore as much on chance and judicial intimation as on legal principle. The
prosecution was taken by surprise by this evidence in at least two cases, whereas if the court had
ordered disclosure the CPS would also have obtained access to the records.
Delays in Processing Child Abuse Cases
In 1988 the Home Office directed all sectors of the criminal justice system to give child abuse
prosecutions high priority so as to ensure their speedy progress. The need to expedite child abuse
trials was a dominant theme of the Pigot Report, the object being to minimise the stress on child
witnesses and to preserve the integrity and reliability of their evidence (paras. 1.20, 2.14, 6.12).
Whilst it is the policy of the Home Office and Lord Chancellor’s Department to ‘fast track’ these
cases, our case monitoring revealed very considerable delays. Figure 5.1 records the time interval
between referral of the complaint to the police to the first day of trial in respect of those cases which
reached court. While other studies of fast-tracking have measured the time child abuse cases take to
move through the courts (Plotnikoff and Woolfson, 1995a; Plotnikoff and Woolfson, 1995b; CPS
Inspectorate, 1998, pp.26–28, Annex C), we sought to measure the impact of delay on the quality of
the evidence at trial, making the time child witnesses are in the criminal justice system the
appropriate measure.
The average time it took these 21 cases to reach trial was 57.5 weeks. Ten cases took more than a
year to reach trial. While cases 44B and 46B might be regarded as anomalous for reasons explained
below, when they are removed from the computation the average time to reach trial is still 49 weeks.
Figure 5.2 measures the progress of the cases in our trial sample from the date of committal or
transfer to the Crown Court to the first date of trial.
The average waiting time for child abuse cases was 33.3 weeks in Crown Court B, and 27.9 weeks in
Crown Court A. Paradoxically, Crown Court B had a formal fast-tracking scheme in place, whereas
C rown Court A did not. These fi g u res may usefully be compared with those from the Lord
Chancellor’s Department measuring the waiting time from committal to the first day of trial for all
defendants charged with all types of offence in each of the Crown Court centres featured in our
research during the months covered by our fieldwork (September 1996 to January 1998). In Crown
Court B, the waiting times for all not guilty pleas ranged from a low of 12.3 weeks to a high of 22.64
weeks, an average of 18.37 weeks. In Crown Court A, the waiting times ranged from a low of 10.67
weeks to a high of 38.23 weeks, an average of 19.33 weeks. The average waiting time for all
defendants in all Crown Courts in that Circuit during the research period was 18.31 weeks.
5. As occurred in R. v Azmy (1996) 34 BMLR 45 (Manchester Crown Court).
51
Figure 5.1: Time (in weeks) from referral to police to start of trial
Figure 5.2: Time (in weeks) from date of committal or transfer to start of trial
Somewhat shorter waiting periods were reported by the CPS Inspectorate for six other Crown Court
centres. These data cannot be directly compared with the figures for the Crown Court centres we
studied because the Inspectorate did not define the cut-off point for ‘finalisation’ of the cases in its
sample, 44.8 per cent of which comprised guilty pleas in the Crown Court (CPS Inspectorate, 1998,
pp.16–18, 26–28, 51).
It is clear that child abuse prosecutions progressed much more slowly than did other cases in the
courts studied. In several respects child abuse cases are more complicated than many other types of
case: videotapes must be viewed at se veral stages of the process to decide whether to proceed with
prosecution; it may take more time to formulate the charges; and it may be necessary to apply at a
PDH for rulings respecting the child’s evidence. Videotapes must be transcribed for the court
(although delays caused by disputes between the police and CPS as to who should arrange and pay
for videotapes to be transcribed should be alleviated by an agreement, effective from 1 December,
52
1997, that the CPS will do this). However, these factors cannot explain the long periods of inactivity
on most files. It appears that the transfer procedure is now used more frequently and is operating
more smoothly as CPS staff become accustomed to it. Nevertheless, on the evidence of our two
study areas the conclusion of Plotnikoff and Woolfson in 1993 and 1995 (1995a at pp.25–27; 1995b
at p.107) that child abuse prosecutions routinely take longer to reach disposition than the national
average for all types of offences appears still to be valid.
The Causes of Delay
In our subject areas there was no established system within the CPS to monitor the pace of child
abuse cases through all phases of investigation and prosecution. Cases consequently could become
bogged down without anyone noticing or being able to identify a specific reason, even in retrospect.
A considerable number of people in several organisations must be strongly committed to the ‘anti-
delay’ principle if it is to be effective in a given case. This may require co-operation not just from
those accustomed to operating within the criminal justice process, but also from Social Services,
medical and other professional personnel, and education authorities, all of whom may possess
evidence relevant to the prosecution or the defence case. For fast-tracking to work, someone must
be responsible for ensuring that each organisation dedicates the necessary resources to each case and
monitors progress.
CPU officers are often the only persons in the system with direct contact with the alleged victim and
his family. They, typically, are committed to pushing cases fo r wa rd to trial. In other sectors,
however, powerful disincentives operate to allow child abuse cases to languish.
The ability of CPS lawyers and caseworkers to process child abuse cases quickly is hindered by their
heavy workloads. While most advice files sent to the CPS by the police were turned around within a
few days, we found cases which had sat on lawyers’ desks for six to eight weeks before advice was
gi ven. Once a CPS law yer has decided to prosecute a case in the Crown Court, his furt h e r
involvement tends to be minimal; the file is then passed to a caseworker who is trusted to bring to
the lawyer’s attention any difficulties which the caseworker can identify.
Obtaining early court dates is critical to a successful fast-tracking system. While court listing officers
are instructed to accord child abuse prosecutions priority on the child list, and to give them fixed
trial dates (Lord Chancellor’s Department Guidelines for Crown Court Listing, April 1994, paras.
8.6,12.3; cited in Plotnikoff and Woolfson, 1995a, p.44), the pressures to maximise available judicial
time and use courtrooms efficiently meant that these cases often slipped down the list; alternatively,
they might be put on the ‘warned’ list, which meant children had to stand by for a call from the
court which might or might not come during the notified period.
The standard CPS instructions on child abuse prosecutions ask counsel to “use his or her best
endeavours to fix an early trial date and to resist any attempts to delay the listing of this case”,
but barristers are loath to object strongly to requests for adjournments or to oppose applications for
disclosure on the ground of delay. Several counsel expressed a wish that judges would take a stricter
line with dilatory parties. Some judges at PDHs expressed displeasure at the slow progress of a case.
H oweve r, we saw little evidence in our study areas of judges refusing to grant requests fo r
adjournments. In the areas to which we made brief visits, on the other hand, judges told us that
they would not adjourn PDHs simply because a barrister was not prepared.
The Consequences of Delay
Studies by child psychologists show that while young children are capable of giving reliable accounts
of their experience, their memories may deteriorate more rapidly than those of older witnesses (Flin
et al., 1992; Flin and Spencer, 1995, pp.178–182; Scottish Law Commission, 1990, para. 1.5;
Australian LRC paras.14.19–14.20, 14.52). It so happened that amongst our sample of cases which
reached trial, the three having the youngest witnesses (26B, 27B and 46B, which together involved
14 children aged se ven to eight) incurred some of the longest delays (68 weeks, 56 weeks and 176
weeks respectively). Whilst there was good reason for some of this delay, we were una ble to detect
53
any effort to expedite proceedings on the basis that very young children were involved. The
consequence of such substantial delays is that inconsistencies are likely to develop between the
videotaped interview and the child’s evidence in court. These may cast doubt on the credibility of
the earlier disclosures. The child may have genuinely forgotten points favourable to the defence, or
may claim to have forgotten to avoid making admissions. All of these difficulties were clearly
illustrated in the cases we studied (see, for example, the vignettes for cases 26B, 27B and 46B). It
should be noted, however, that the inconsistencies often related to peripheral details rather than to
the assault itself. In case 44B, the child could not recall many of the events of the day on which the
stepfather had attempted to bugger him more than two years earlier, but insisted that he could
remember the commission of the offence itself because, as he put it, “it’s pretty hard to forget”.
Also, a child’s physical appearance and demeanour can significantly change in the 14 months or so
between referral and trial. Many of the child witnesses we observed in court were difficult to
recognise from their videotaped interviews. Their added physical, mental and emotional maturity
can give the jury a misleading impression of their vulnerability at the time of the alleged abuse.
While to a certain extent this can be offset by a videotaped interview conducted shortly after the
events, the videotape itself illustrates to juries the time which has elapsed. Several of our barrister
informants said that they would be disinclined to use a videotaped interview if the child’s appearance
had significantly altered; the contrast would be too marked, damaging the prosecution case. This
was one of the reasons prosecuting counsel abandoned the videotaped interviews of four children in
case 46B, which took three years and 20 weeks to get to trial.
The accumulating stress for children who cannot draw a line under painful experiences while
awaiting the trial can make them less effective witnesses, particularly in cross-examination. Victims
and their families may withdraw their co-operation with the prosecuting authorities, leading to the
retraction of complaints. Other witnesses may become unavailable or become frustrated with the
process. In case 44B prosecuting counsel felt obliged to dismiss two witnesses after the re-trial of the
case had been adjourned for the second time.
Delay can also be unfair to defendants. Several of the defendants in our case sample who were
acquitted had been suspended from their jobs or from participation in volunteer work because they
were suspected paedophiles; others had been required to live away from their families as a condition
of bail.
Preparation of the Child for the Court Process
It is important to distinguish between providing emotional support for the child witness and
p re p a ring that child to testify, as the two are often conf lated. The importance of the role of
sympathetic support workers within the criminal justice system in assisting children to withstand the
ordeal of the trial process is now widely recognised. Services focusing on moral support for child
and other witnesses are now available in most court centres in the UK, usually under the auspices of
Victim Support or the NSPCC.
This is a separate function, however, from providing children with adequate information about their
role in the adversarial trial process so as to enable them to be effective witnesses ( Lord Williams of
Mostyn, 1996, p.51, recommendation 23). Effective preparation by staff knowledgeable in the legal
requirements of the adversarial trial may help to close the gap between what the law expects in the
way of cogent testimony and what a child witness is able to provide (Murray, 1997, p.53; Cashmore
and Bussey, 1995, p.43). The primary concern inhibiting the development of systematic and
comprehensive child witness preparation programmes in the UK is that it will be difficult to avoid
discussing the child’s evidence, giving rise to suspicions of coaching. However, experience of pilot
projects here and abroad suggests that it is possible to overcome such concerns if there is proper
training for child witness support workers and a package of instruction for children (Plotnikoff, et
al., 1996; Dezwirek-Sas, 1992; Keeney, Amacher and Kastanakis, 1992).
54
Although there have been commendable initiatives by the NSPCC and Victim Support in recent years
to address this need, it appears that the availability and content of pre-court preparation programmes
for child witnesses continue to vary greatly between individual courts and geographic regions
(Murray, 1997, p.56). Furthermore, such programmes are not necessarily used, so a paper review of
the services theoretically available could be misleading. In one of the court centres in our study a
fairly elaborate set of forms had been devised to notify support workers of decisions taken as to how
the child will testify, and indicating the child’s needs in that context. However, the witness support
co-ordinator told us that the system did not work because the forms frequently were not completed
by ma gistrates, CPS caseworkers, and barristers. In at least one case at this centre (case 22A), the
three child witnesses had received no preparation to testify before attending court; the Witness
Support Unit had not been informed of the case.
In Northern Ireland 6 and Canada it is considered to be part of the role of the prosecuting barrister to
explain the trial process to prosecution witnesses before they are called to testify, including a
discussion of the evidence the witnesses propose to give. In England recent changes to the Bar Code
of Conduct permit prosecuting barristers to have contact with their witnesses, and stress that a
barrister should ensure that those facing unfamiliar court procedures are put as much at ease as
possible, especially when the witness is nervous or vulnerable or apparently the victim of a crime.
However, barristers are still enjoined to exercise caution in interviewing witnesses or in discussing
with them the substance of their or other witnesses’ evidence (Bar Code of Conduct, Articles 6.1.3–
6.1.4, 6.2.1–6.2.2). Many English prosecuting barristers continue to feel very constrained in their
contacts with child witnesses out of court, fearing allegations of coaching.
Some of the prosecuting barristers we interviewed told us that it was their practice always to speak
to the child beforehand, even before this was authorised by the Bar Code of Conduct. Others said
that they still rarely, if ever, spoke to any prosecution witnesses, including children. The practices of
those pro s e c u t o rs who did speak to child witnesses va ried: some we re content to intro d u c e
themselves, but others tried to gain an impression of the child’s cognitive development, especially
their use of language. They might also provide basic last-minute instructions about listening to the
questions and requesting clarification if they did not understand. Several tried to reassure the child
that he would be able to withstand cross-examination provided he told the truth. Advice of this
nature from the prosecuting barrister can appropriately reinforce the instruction given in a witness
preparation programme, and can help to give the child the confidence to be an effective witness.
In June 1998, after the conclusion of our fieldwork, the NSPCC published a new edition of The
Young Witness Pack (NSPCC, 1998), laying out a detailed agenda for preparing child witnesses to
testify, drawing on research and similar programmes in Canada, the United States and Scotland. This
p ro gramme, if fully implemented and backed up with appro p riate training for child witness
supporters, promises to do much to alleviate the difficulties identified in this section of our report.
Refreshing the Child’s Memory
While most witnesses preparing to testify needs to refresh their memory as to the content of their
witness statements, this is of particular importance for children because of the substantial gap
between their examination-in-chief, in the form of the videotaped interview, and cross-examination at
trial.
Material issued to CPS prosecutors indicates that it is usual for the child to refresh his memory by
viewing the videotaped interview at the same time as it is shown to the jury (although the latest
edition of NSPCC’s The Young Witness Pack indicates that CPS policy is that the child may see the
videotape before the trial unless it has been ruled inadmissible (NSPCC, 1998 p.41)). We found no
consistent practice in this regard (see also CPS Inspectorate, 1998 at para. 8.54). In some cases (e.g.
26B and 27B) the officer in the case had gone to the child’s home to watch the videotape with him.
Case 27B demonstrated the benefit of this practice; the judge was able to send a restless young boy
with a short attention span out into the corridor to play football while the jury watched his tape.
6. Information kindly provided by James Scholes, Barrister, Office of the DPP and Assistant Director of Belfast Crown Court.
55
Another method is to have the child review the tape immediately before testifying. The potential
hazards of this approach were shown with one of four child witnesses in case 46B: the start of the
trial was delayed, and when she was later cross-examined on statements in her interview she said
that she had been too upset to watch the whole tape.
It may be difficult for a child to focus on a 45-minute videotape without a break. We suspect that a
child who sees the video for the first time with the jury is likely to be distracted by watching himself
‘on television’. The stress of the prospect of the upcoming cross-examination may make it difficult to
concentrate on the details of the evidence which are likely to be challenged by the defence, and
young children may already be weary when they start cross-examination, even after a short break.
Many of the child witnesses we observed claimed that they could not remember making statements
in the video which they had just seen.
D i fficulties in re f reshing a ch i l d ’s memory may arise where the videotape has been ru l e d
inadmissible, or the prosecutor has elected to lead the child in live examination-in-chief because of
problems in the original interview. This occur red in case 46B, but the defence finally decided not to
pursue its objections to the child seeing the tape. In case 44B, where the interview disclosed an
offence in respect of which the defendant had been acquitted in a previous trial, rendering the tape
unusable, the complainant was given the police summary of his interview but with references to the
previous incident deleted.
Where the child had given a written statement rather than been video interviewed, as in case 51B,
the usual practice appeared to be to provide the witness with the statements on the morning of the
trial, to be read outside the courtroom. With the court appearance so imminent, the witness may
have difficulty focusing on the aspects of his account which might be challenged.
Delays at Trial
Since it is customary for the prosecution to call the complainant as its first witness, child witnesses
were usually scheduled to testify at the beginning of the trial. However, in se veral trials which we
monitored, other matters, such as sentencing after guilty pleas, were scheduled before the trial judge
at the same time as the trial. This occurred both on the first day, when the child complainant was
usually first scheduled to appear, and on subsequent days, when the child was still under cross-
examination. Furthermore, while some prosecutors asked the child to attend one or two hours after
the trial was scheduled to begin, in several trials which we observed the child witness was kept
waiting during preliminary discussions between counsel, or while the court dealt with preliminary
applications pertaining to the form of the indictment, the admissibility of evidence, or the mode by
which the child was to testify. It was not uncommon to have other unrelated matters scheduled
before the same judge at the same time as the trial.
The worst example of such delays occurred in case 6A in which the complainant, aged 11, alleged
that she had been indecently assaulted and raped. The complainant was told to arrive on Tuesday at
9:00, with the case being listed to start at 10:30. The case was not called until 12:35, but the only
matter dealt with that morning was to amend the indictment because the trial judge had to deal with
a jury which was deliberating on another case. Meanwhile the complainant waited in the video
room. At one point she was left alone and became upset, and the police officer had to ask that a
court usher or Victim Support worker remain with her. At 14:05 the jury was sworn and the
prosecution made its opening speech. The complainant’s video was played to the court from 14:30
to 15:30, whereupon the court rose for the day, over the objections of the prosecuting counsel who
observed that the child had been waiting all day. The complainant and her young brother were
instructed to return to the court on Wednesday to give evidence at 10:30. However, three bail
applications were scheduled to be heard by the trial judge before the trial could resume. Cross-
examination of the child finally began at 11:00. When she broke down in tears shortly after the
cross-examination began and asked the trial judge for a break, he refused her request, saying that she
must be patient because the defence had a lot more questions to ask her. She was allowed a break
later after she continued to cry.
56
It is important to note that this treatment of a distressed child witness was unusual in our experience.
Nevertheless, each element which combined to create the delays in this case featured in other cases
in our sample, and reflected common court practices in our subject areas.
The Probative Value of the Videotaped Interview
Of the 17 cases in which children were called to testify, videotaped interviews had been conducted
in 11, and were tendered as examination-in-chief in nine. A total of 22 children testified through this
means, including one witness for the defence in case 26B. In the two cases where counsel opted not
to use the videotaped interview, the child gave live evidence-in-chief through the videolink. In three
cases the complainants, aged 15 (case 54B), 16 (case 51B) and 17 (case 29B), were not afforded any
of the special statutory protections.
The video interv i ew can be a va l u able tool for the prosecution in eliciting an accurate and
contemporaneous account of the child’s experiences. As one counsel told us:
“The great advantage when you are prosecuting is that you know you are going to get your
evidence out, whereas in the old days [with the] poor child, it was going to be pot luck as to
whether th ey said anything at all , and if they did whether they said any t h i n g
incriminating. At least now you know that you are going to get the basic story out,
because it is there upon video and because it is set in stone, as it were … [But a problem is
that] the way in which the evidence is extracted in video interviews is not the way that you
would do it in court.”
As discussed in Chapter III, having to combine the roles of investigator and prosecuting counsel
creates unique challenges for the interviewer. Counsel conducting examination-in-chief of a witness
is armed with an overview of the complete case, has developed a theory around which to organise
that case, and knows what evidence must be elicited from each witness to prove it. The video
interviewers, in contrast, are conducting an investigative interview at the outset of an inquiry when it
is not known whether an offence has been committed, and if so by whom; yet that interview
becomes set as the keystone of the prosecution case in court, many months later.
Children often do not tell stories in chronological order, and this difficulty can be compounded by
embarrassment and reluctance to discuss intimate sexual matters with a stranger, particularly where
people close to them are involved. This may make it difficult to respond to open-ended questions
(Goodman and Schwartz-Kenney, 1992, p.22). In these circumstances, even with highly skilled
interviewers, it is not surprising that the child’s disclosure will often be incomplete at the initial
interview. The child may not know what details are relevant. If the child is interviewed prematurely,
the resulting evidence is likely to be incomplete, and it can be extremely difficult to fill in the
evidential gaps at a later stage, as the vignette of case 38A in Appendix C illustrates. At worst, a
p re m a t u re interv i ew conducted without an evidential stra t e gy may jeopardise a pro s e c u t i o n
(National Center for Prosecution of Child Abuse, 1993, Vol. 1, p.483). Alternatively, the interview
can produce testimony which is inadmissible, or is difficult for the jury to understand and evaluate.
The consequences of making the initial investigatory interview serve as the prosecution’s primary
evidence at trial are particularly exposed where the interviewer’s style of questioning is dissected at
the voir dire. Most of the objections raised by the defence to the admissibility of videotapes were
based upon the interviewer’s style of questioning. The interview of one complainant in case 26B was
entirely excluded from evidence because the interviewer, having already seen the evidence of several
other children, had developed a view of the disclosure she was seeking, and so did not really listen to
what the child was saying. In one instance she assumed that an account given by the child of
another pupil’s experience (which was inadmissible hearsay) had in fact happened to the child being
interviewed. Her follow-up leading questions contaminated his subsequent disclosure of alleged
indecent assaults against himself, and the charges relating to this child had to be withdrawn following
the PDH.
57
The most frequent problem raised by counsel was the use of leading questions (Jones, 1992; Myers,
1997, Vol. 1, p.60–69). As noted in Chapter III, the admissibility of answers to leading questions
depends on whether the question relates to a contentious matter, and the degree to which the
question suggests an answer to the witness (Wigmore, 1978, vol. 3 para.769 pp.154–155). Evidence
elicited by leading questions in an examination-in-chief in court may well be admissible, particularly if
opposing counsel fails to object in time; if there is a timely objection, examining counsel usually has
the opportunity to rectify any errors by re-phrasing the question. But the same evidence on a
videotape runs the grave risk of being ruled inadmissible simply because the offending questions
were asked in a different forum, where there was no opportunity to object to and correct the
mistake. In some cases the offending passages may be edited out without unduly impairing the
evidence which remains, but in others the remaining narrative may be difficult to follow, a point
made to us by judges whom we interviewed.
A second interv i ew to try to re c o n s t ruct the re l evant part of the initial interv i ew in a more
presentable form is one possible solution, but it is discouraged by the Memorandum. One counsel
suggested that a second interview could be useful in obtaining the child’s reaction to the suspect’s
version of events. Several counsel said they would prefer a flexible system which would allow them
to lead the child in a brief, organised examination-in-chief, with the videotape being played to the
jury as part of the history of the investigation to show how the child made the initial allegations to
the police.
Most judges explained to the jury, before the tape was played, the reasons for videotaping interviews
with children and emphasised that this was standard procedure for child witnesses; some also
cautioned the jury not to draw any inferences adverse to the defendant from the special procedures.
While in some cases the videotaped testimony was presented effe c t i ve ly, in others tech n i c a l
p ro blems may have impeded the jury’s ability to assess the child’s evidence. These technical
problems occurred at two levels: the taping of the interview and its presentation in the courtroom.
There were frequent problems with the child’s audibility, particularly where the interview had been
conducted in one particular police suite situated adjacent to a busy bus route. Children were
frequently interrupted and asked to repeat statements. They also might drop their heads whilst
speaking, often in the most crucial part of their disclosure, but interviewers sometimes failed to ask
the child to repeat the statement.
When children were asked to draw the layout of rooms, or to identify people in a photograph, the
activity was often conducted off-camera, or the interviewers forgot to identify verbally what the child
was pointing to or describing so that the viewer remained unenlightened, even though the
investigator may have obtained valuable information.
Testimony Through the Videolink
A much debated question is the extent to which the videolink has been accepted as the norm for
child abuse trials. We heard of judges who refuse to permit it under any circumstances, but this was
not the case in the trials we attended. Where the videolink was not used, this appeared to have been
the decision of prosecuting counsel. A total of 26 children in ten cases testified using the live
television link. In the two Crown Courts at which we conducted our observations it seemed to be
assumed that the child would use the videolink if the videotape interview had been admitted in
evidence. In cases 44B and 46B the children gave both phases of their evidence through the
videolink as there were problems with the admissibility of the videotapes. The defence objected to
the videolink in only one case, arguing that the complainant was “not a young 15” and did not
require any special protection when testifying about her alleged rape (case 43A). The judge gave this
objection short shrift. The child witnesses whose cases we followed were accompanied in the video
room by a gowned usher rather than by a child witness support worker or someone whom the child
already knew.
58
Prosecuting counsel decided to use screens in two cases. In case 37A the 13-year-old complainant’s
videotaped interview was admitted in evidence, but she was cross-examined using a screen rather
than the videolink. In case 53B four written statements we re taken by the police from the
complainant, aged 16, who then gave evidence-in-chief using the screen.
Research using interviews with child witnesses indicates that they generally preferred CCTV, and
some children who had testified in court wished that they had not done so (Murray, 1995, paras.
6.46, 12.17; O’Grady, 1996 , pp.71–74). Some barristers likewise believe that children can gain
strength from testifying in open court. One barrister told us:
“I have always thought that children who get in the witness box benefit, perhaps in an old-
fashioned sort of way, from the fact that they can see people that are listening to them, and
you can sometimes see that the jury is looking at children sympathetically. Whatever the
verdict, you can get an enormous sense of having accomplished something with the moral
support of the audience in the course of giving live evidence which they never get [in the
videolink room]. [It can be a] very frightening experience, talking to a television on your
own, and then to be told that after all no one accepted what you said.”
Barristers identified two types of ‘distancing’ resulting from the videolink: between themselves and
the witnesses they are questioning; and between witnesses and the jury. Counsel find it difficult to
establish rapport with a witness whom they can see only on a monitor. This is exacerbated by
difficulty in maintaining eye contact, as the camera lens is positioned on top of the examiner’s video
monitor; if counsel watches the monitor then he appears to the child to be looking down, whereas
looking at the camera lens makes it impossible to watch the child. It is partly for this reason that
some counsel prefer to have the child use a screen, although they are unhappy with a courtroom
arrangement which requires the witness to walk past the defendant’s supporters before reaching the
refuge offered by the screen. Video evidence is viewed as “remote, anonymous and anodyne”;
most barristers believe that a juror needs to see the witness face-to-face to get a sense of whether he
is telling the truth. Other counsel noted that if a child became distressed in the midst of her cross-
examination they would rather be conducting this via the videolink so that the monitor could be
switched off.
Barristers’ scepticism about the impact of the videolink on juries cannot be empirically verified in
England because the Contempt of Court Act 1981, s.8 forbids contact with juro rs. Research
conducted for the Home Office (Davies et al., 1994) indicated that the use of videotaped evidence
did not have an adverse effect on conviction rates, and this is commonly cited as evidence that
barristers’ view of the impact of the videolink is misconceived. However, the conclusion of this
research is justifiably tentative given that the age of the complainant is not recorded in many sexual
offences; and furthermore the 93 cases involved in that study were barely sufficient to support a
statistical analysis. Empirical studies in other jurisdictions yield conflicting results. In Western
Australia, where empirical research using actual jurors is permitted, a government study showed that
most jurors understood the reasons for the videolink and felt that the presence of the equipment did
not make it more difficult to reach a verdict, instead concluding that it improved the child’s evidence
by reducing stress. The responses of the 15 per cent of the jurors who would have preferred to see
the child in the courtroom were interpreted by the researchers as reflecting their concerns about
technical problems with the equipment (O’Grady, 1996, pp.117–136). In Scotland, however,
researchers evaluated the evidence of children over live television link as being significantly less
detailed and complete than that given in the courtroom. Young witnesses were rated as being
“somewhat less audible, less fluent, less effective and less credible” over the link. These researchers
concluded that many of the observed imperfections could be remedied by attending to technical
defects and by lawyers becoming more comfortable with the technology (Murray, 1995, paras.
12.21–12.27). Similar findings emerged from an American study where mock jurors regarded
children’s evidence over CCTV as less accurate and credible (Myers, 1997 vol. 2, pp.98–100).
Most of our bar rister informants indicated that when prosecuting they strongly prefer the child to be
in the witness box, citing instances where they believed convictions had been secured because the
child was in court. Unless the child is very young, many counsel will explore this possibility with the
59
police or CPS and suggest that they canvass the matter with the child. One barrister observed that
the child is likely to agree if told that this will increase the likelihood of securing a conviction, but
equally she is unlikely to understand the nature of the ordeal which lies in store.
Technological Problems in the Courtroom
Another layer of technological problems may be added in the courtroom, and these must be borne in
mind when evaluating most barristers’ preference for having children testify in court if at all possible.
On several occasions children had to be stopped because the monitors for counsel, the trial judge or
the jury had ceased to operate. While some trial judges were adept in controlling the links between
counsel and the video room, others appeared unfamiliar with the equipment. Sometimes there was
only one monitor for the jury and this might be placed at some distance from the jury box, even right
across the courtroom, with the accused straining to watch the same monitor from the dock. The
level of provision appeared to reflect competing demands for the equipment and the extent of
prosecuting counsel’s determination in insisting that adequate equipment be supplied. In one court
centre one counsel refused to proceed until the monitor was raised to the eye level of the jurors; the
cardboard box devised as a temporary remedy became a permanent fixture, christened with that
barrister’s name. Audibility of the interview in a large courtroom was an even greater problem. The
equipment did not have sufficient audio range to adjust to a soft-spoken child, or else background
noise overrode the voice track.
The placement of the videolink camera can also impair the jury’s assessment of the credibility of the
child. In several instances only part of the child’s face was visible. Sometimes the face filled the
screen, so that the jury could not see the body language which trial judges often cite as important in
evaluating credibility (also noted in Scotland by Murray, 1995 at paras. 7.58–7.60, 12.26, and in
Western Australia by O’Grady, 1996 para. 9.4). Such problems could be addressed by having the
videolink equipment tested with the child present, and placing the child’s chair further from the
camera. We also noted that the proximity of the camera to the witness’s face can make it very
difficult to gain a sense of the child’s size. One possible solution would be to have the child
introduced to the jury in the courtroom before going to the videolink room, preferably before the
defendant appears (Cashmore and De Haas, 1992; O’Grady, 1996 pp.126–129). Notwithstanding
the various technological impediments, jurors appeared to make great efforts to follow the children’s
evidence.
Supplementary Questions by Prosecuting Counsel
The Pigot Committee env i s aged that the videotaped interv i ew would s u b s t a n t i a l ly, but not
n e c e s s a ri ly wholly, replace live examination-in-chief. However, the Criminal Justice Act 1991
required the prosecution to rely entirely on the videotaped interview or not to use it at all. The 1994
amendment gives the prosecution slightly more flexibility, permitting supplementary questions with
leave of the court, but only if the matter has not been covered ‘adequately’ in the interview.
An application to ask supplementary questions was made in only one case in our sample, to cover a
significant lacuna in the police interview (see the case 38A vignette in Appendix C). Judges in other
areas told us that it was very rare in their experience for supplementary questions to be asked.
Interestingly, it is clear from our interviews with the CPS and from our study of files that CPS lawyers
believe that prosecution barristers routinely do ask supplementary questions so that any gaps in the
child’s examination-in-chief can be rectified at trial. Indeed, we were advised that CPS lawyers take
this into account when considering whether a second video interview should be conducted.
Many barristers indicated that they would like the present restrictions relaxed, and some judges
agreed. Counsel conducting examination-in-chief will often use the initial questioning to allow the
witness to settle down and become accustomed to listening and responding to questions before
getting into difficult areas, but under the current regime the prosecutor cannot do this with a child
60
witness. The first question the child will be asked in court will usually be from defence counsel. As
one barrister put it, under the current system “children are thrown straight into it”.
Cross-Examination of the Child Witness
In most of the trials which we observed the cross-examiner was firm but fair with the child witness,
taking care to ensure that the child understood the question, and offering breaks when the child
appeared weary or distressed. In a few cases, however, the cross-examination at times appeared to
be unnecessarily aggressive or tested the child’s credibility inappropriately. Several children became
upset or inaudible, even when questioned gently by cross-examiners who were clearly conscious of
the need to be fair. One child refused to continue and had to be cajoled by the trial judge.
Counsel told us that when prosecuting they must rely upon the trial judge to intervene in an
intimidating or unfair cross-examination. However, in the trials which we observed it was rare for a
trial judge to take the initiative, and this usually took the form of ensuring that the child understood
the question.7 There were exceptions, the most notable being case 36A where the trial judge
intervened on three occasions, switching off the child’s monitor to admonish defence counsel.
Although most counsel believe that it may be counter-productive to engage in aggressive cross-
examination of children, and such cases were the exception rather than the rule, as noted in Chapter
IV they can assume disproportionate importance in the minds of child abuse investigators.
Cross-Examination on Prior Sexual History
The basis upon which the courts grant leave to cross-examine complainants of sexual assault on their
prior sexual history under the Sexual Offences (Amendment) Act 1976, s.2 continues to attract great
controve rs y. A government interdepartmental working group recently concluded that there is
“overwhelming evidence that the present practice in the courts is unsatisfactory and that the
existing law is not achieving its purpose”, that purpose being to restrict cross-examination to
circumstances where the complainant’s sexual history is relevant to the defence of consent rather
than merely to her creditworthiness and character (Interdepartmental Working Group, 1998, paras.
9.59–9.64).
This difficult issue takes on additional layers of complexity where the complainant is a child, such
that any previous sexual encounters must have been, in law or in fact, non-consensual. In these
circumstances the customary justification for such cross-examination, that the alleged victim’s prior
sexual behaviour is relevant to whether she did in fact consent to a sexual act with the accused, or is
relevant to the accused’s belief in consent, falls away. On the other hand, new justifications may
e m e rge, such as defence theories that a prior history of abuse by other s offe rs altern a t i ve
explanations for a child’s prematurely sexualised behaviour, or provides motives for fabricating
allegations, or for incorre c t ly attributing the abuse to the defendant (M ye rs, 1997, vol. 1,
pp.104–121).
In our case sample the issue took on two distinct dimensions, generally dependent upon the age of
the child. Many adolescents are sexually active, although they are below the age of legal consent.
The cross-examination typically desired by the defence in these cases was directed to establishing
that such sexual activity was relevant to the question of whether the complainant was likely to have
consented to sexual intercourse with the defendant. For example, the rationale advanced for the line
of questioning in case 43A was that because the complainant, aged 15, allegedly had consented to
sex with other men on their first encounter, this undermined the credibility of her denial of consent
to intercourse with the accused on the day they met. The trial judge, in granting leave, indicated that
questions that are claimed to be relevant to the issue of consent would never be barred by section 2.
In case 29B, described in a vignette in Appendix C, the relevance of adolescent sexual activity was
7. Compare the Northern Territory of Australia Evidence Act s.21B: a judge may disallow questions which are “confusing, misleading or phrased in
inappropriate langua ge”, having regard to the child’s age, culture and level of understanding”. New Zealand’s Evidence Act 1908, s.23AF(5) encourages
judges to disallow “intimidating or overbearing” questions.
61
turned on its head: the defence wanted to show that the complainant had not had the sexual
experiences she had claimed to her friends. This was to demonstrate that she was a ‘Walter Mitty
character’ who had ‘adopted’ experiences narrated to her by others, such as having undergone an
abortion. The prosecution did not oppose the application, and after the complainant admitted telling
several lies (albeit unconnected to her central allegations against her stepfather), the judge directed
the jury to acquit.
The relevance of alleged prior sexual experience took on a different complexion when the child was
so young that there was a clear inference of exploitation by an adult. Here, the defence strategy was
to contend that this history helped to prove that the present allegations were false, either because
the child’s previous allegations supposedly had not been believed at the time, or because the child’s
conduct in relation to the series of allegations was claimed to be inconsistent.
Case 38A illustrates the use of prior abuse to support the fi rst theory. The proposed cro s s -
examination of the 15-year-old complainant would have focused on one of nine previous complaints
of sexual abuse made by her, this one concerning an indecent assault allegedly committed by her
grandfather when she was aged seven, an allegation which her mother had persuaded her to
withdraw. The defence argument was that her aunt’s partner, knowing of this supposedly false
allegation, would not have attempted to rape her. The defence proposed to ignore the eight other
incidents, notwithstanding that at least five were substantiated by convictions or confessions. The
application was unsuccessful (see the vignette in Appendix C) .
In two other cases involving young witnesses, the defence, so far as we could ascertain, had not
sought leave under the Sexual Offences Amendment Act 1976 before embarking on questions about
previous abuse in cross-examination. The objective appeared to be to undermine the child’s
credibility by demonstrating inconsistencies in her responses to the alleged incidents. In case 6A,
w h e re the prosecution alleged that the defendant had raped his 11-year-old niece, the cro s s -
examination took the following line:
Q: I am going to ask you something different now. Stop crying and listen carefully.
Do you know A? … Have you ever complained about A doing something to you?
A: No.
Q: Even when you were very little?
A: Can’t remember.
Q: Do you remember P?
A: Yes. He’s a grown-up. Lived next door to us.
Q: Have you ever complained that he touched you?
A: Yes.
Q: Did he touch you?
A: Yes. Long time ago. Can’t remember when.
Q: Where did he touch you?
A: Everywhere.
Q: Between your legs?
A: (Nods) Happened a lot of times – happened at his house. Can’t remember how
long it went on for.
[Some questions omitted]
Q: The police asked you to tell them about this in the video but you didn’t tell them.
Why not?
A: Don’t know.
Q: You couldn’t tell the police. Even though you knew that it was wrong. Why
couldn’t you tell the police?
A: Don’t know.
The defence counsel went on to ask the child about alleged sexual encounters with five other men
and boys, and suggested that she had been caught masturbating herself, all of which she denied.
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In case 46B, described in a vignette in Appendix C, a girl aged 11 alleged that she and her older sister
had been molested by a babysitter three years earlier. Defence counsel asked her:
Q: I think that you were afraid to tell your dad that D [the defendant] had touched
you because it was untrue. You were afraid that you would get into trouble for
telling stories. It is true that you were touched by H, you had both been touched by
H and that was between your legs and when you are touched by him you told
Mum and Dad and after that it stopped. Why were you afraid to tell them this
time? I think it was because it wasn’t true.
A: He did touch us.
The National Commission of Inquiry into Prevention of Child Abuse argued that the use of previous
sexual experiences, whether abusive or not, as evidence that the child cannot be believed or had
provoked the assault does not serve the interests of justice (Lord Williams of Mostyn, 1996, at 42,
para. 5.17). In November 1998 the Government announced in the Queen’s Speech that the precise
scope of the questioning which may be permitted under the Sexual Offences Amendment Act 1976,
s.2 would be re-drawn. We suggest that the subtly different issues pertaining to child complainants of
sexual assault in this context bear further examination.
Questions Not Asked in Cross-Examination
Case law8 and professional ethics (Bar Code of Conduct, para. 610(g)) require defence counsel to
put to prosecution witnesses any contradictory version of events upon which the defence will later
rely, so that the jury may decide between the two conflicting stories. For example, if the defendant
alleges consent in a rape case, this must be put to the complainant in cross-examination.
Breaches of this rule may have affected the jury’s evaluation of the complainants’ credibility in two
trials which we observed. As noted earlier, defence counsel in case 38A did not ask the complainant
why she had not volunteered in her video interview information which she had in fact already
disclosed to the police. The defence later submitted that her silence on this point indicated that she
had fabricated her story. In case 43A the adolescent complainant testified that the defendant,
previously a slight acquaintance, had intruded into her bedroom and raped her. The defendant
alleged consent, testifying that the complainant had telephoned him twice to arrange a rendezvous
after their first encounter. She had not been asked about this in cross-examination; the defence
nevertheless asked the jury to view this untested evidence as seriously undermining her credibility.
Failure to put such points to the complainant places prosecuting counsel in a difficult position. If (as
in case 38A) the matter is first raised in the defence’s closing address to the jury, the prosecution
does not have an opportunity to rebut. If the defendant testifies to these new facts, the prosecutor
can suggest in cross-examination that he must have just made them up if he had not previously
instructed his counsel about them. However, as one counsel put it:
“The problem from a professional point of view is that you rather put their counsel on the
spot because he either has to sit there and appear as if the client has just made it up, or he
has to stand up and say: ‘I am sorry, the fault is entire ly mine, it was there in my
instructions’”.
In these circumstances the adversarial process has failed to give the complainant a fair chance to tell
her story.
Issues of Testimonial Competence Arising at Trial
Empirical evidence from other jurisdictions suggests that judges in those countries have been slow to
take on board statutory reform setting up a presumption of the competence of child witnesses, still
8. Browne v Dunn (1893) 6 R. 67 (HL). A breach does not render the contradictory evidence inadmissible, if the witness whose evidence is undermined by
the new evidence can be recalled to comment on it: R. v Cannan [1998] Crim. L.R. 284 (CCA).
63
administering tests of the child’s understanding of the difference between truth and lies, often in a
religious context (Cashmore and Bussey, 1995, pp.7, 22, 59). In the cases in our sample, however,
the judges respected the presumption of competence and refrained from testing this before allowing
defence counsel to proceed with cross-examination. Some judges cautioned the child to tell the
truth, not to make anything up, to listen to the question and to indicate if he did not understand it.
Others emphasised that no-one would be cross if the child said he did not understand, could not
remember, or wanted to change something he had said. Such explanations of what is expected of
the child in testifying may assist not only the child but also the jury, who must decide if the child is
telling the truth.
Failure by interviewers to take children through the ‘truth and lies’ litany sometimes leads the
defence to object to the admissibility of the videotaped interview as examination-in-chief (as in case
46B), but in fact it is the child’s ability to give ‘intelligible’ testimony which is now the test of
competence. In only one case was it argued at a PDH that a videotape showed that the child was
incompetent. The trial judge ruled the tape admissible, notwithstanding the reservations expressed
to us by both counsel concerning the child’s ability to tell an intelligible story given his short
attention span and apparent inability to answer a direct question. During cross-examination the boy
was largely unresponsive.
In case 27B the trial judge had to rule on defence submissions that two eight-year-old boys were
incompetent after they admitted midway through cross-examination that they had repeatedly lied in
their interviews, and then denied knowing the difference between truth and falsehood. Both had
disadvantaged backgrounds and had made obviously untrue statements. The police interviewer had
tested their understanding of truth and lies by having the ch i l d ren indicate agreement or
disagreement with his description of the colour of their shoes. Prosecuting counsel submitted that
the boys’ inability to respond to the defence’s abstract question “what is the truth?” was likely to be
due to embarrassment at being caught out in so many falsehoods, rather than to true ignorance. The
judge questioned the boys in the absence of the jury, devising a fact situation which tested their
understanding of the obligation to tell the truth where a falsehood would have implications for
another person. Both children were declared competent. A contrary ruling would have created a
dilemma since the jury had already heard substantial testimony from those witnesses.
This case highlights the difficult challenges which even the stripped-down test of intelligibility poses
for the interviewer when conducting an initial investigation of a complaint, often with a child who is
apprehensive, distressed or confused. The interviewer must elicit a coherent and cogent narrative of
the child’s experiences which will satisfy the threshold test of competence and furnish sufficiently
credible evidence for a prima facie prosecution case. Counsel whom we interviewed felt that the
typical police test of presenting the child with an obviously untrue statement was too simplistic, and
that children should be made aware of the obligation to tell the truth. At the same time there is need
to avoid frightening them about the possible implications for the suspect.
Evidence from Witnesses Other Than Child Complainants
There are three types of evidence which may be deployed by the prosecution and the defence to
bolster or undermine the credibility of a child witness. These concern the timing of the child’s
complaint, similar fact evidence, and expert medical or psychological testimony. The probative value
of all three types of evidence in recent years has been the subject of considerable controversy in the
wider context of sexual offences generally. Similar fact evidence did not become an issue at trial in
any of the cases in our sample, and its effect on the decision to prosecute has been discussed in
Chapter IV.
Evidence of ‘Recent Complaint’
Evidence of ‘recent’ (i.e. prompt) complaint, or altern a t i ve ly of delayed complaint, fi g u re d

prominently in our trial sample and engendered several forensic skirmishes. The prosecution relied
upon evidence of recent complaint in five cases. In at least two cases the defence objected to the
64
admissibility of the complaints, claiming that they did not fulfil the legal criteria (described in
Chapter II). In case 36A two 11-year-old girls had been video interviewed about their friend’s
complaint on the morning after the alleged assault, but the prosecution elected not to call them,
calling instead the teacher to whom the two children had persuaded the complainant to inform later
that morning. The defence argued that the complaint was not ‘recent’, that it had been elicited by
leading questions from the teacher, and that another girl had answered questions on behalf of the
complainant, who had merely confirmed her responses. An appeal against the conviction on the
ground that the recent complaint evidence was inadmissible was dismissed.
In five cases the complainant’s credibility was attacked on the basis of alleged delay in disclosure. In
case 38A the 15-year-old complainant, a victim of previous sexual abuse, had not immediately told
the staff at the children’s home where she lived of the alleged attempted rape earlier that evening.
She disclosed the incident about one hour later to a staff member who found her in a distressed state.
Defence counsel relied on the one-hour delay in submitting to the jury that the girl had fabricated the
allegation. Returning to case 36A, the 11-year-old complainant who said she had been indecently
assaulted during the night was cross-examined on her failure to tell either her friend or her friend’s
mother when she stopped at their house on the way to school from the defendant’s house the
following morning. Instead she had waited to tell another friend at school. In the three other cases
the girls said they had been subjected to long-term abuse at the hands of a family member before
finally disclosing.
Some counsel whom we interv i ewed considered that a prompt complaint bolstered a ch i l d ’s
credibility, while others felt that its value has greatly diminished now that the videotaped interview
takes place soon after the matter is reported to the authorities. Several barristers were sceptical
about the evidential foundations for the recent complaint doctrine, suggesting that it re fl e c t s
outmoded thinking and that juries misunderstand directions as to how to weigh the evidence:
“What is the purpose of the doctrine if it isn’t in so me way to corro b o rate t he

complainant’s statement? It doesn’t matter how many times you tell a jury that it’s not
corroboration, that is exactly how they view it. What is the point of it? If I punch you in
the face, and do nothing more, you tell a police officer, you can’t put in a recent complaint.
If however I touch you indecently when I punch you in the face, you can. What is the logic
of that?”
One barrister thought that jurors intuitively understand why children may delay in complaining of
sexual abuse, but others were not so confident. One difficulty is that there must be an evidential
foundation for the prosecution to explain the delay to the jury, but it may be difficult to persuade the
complainant to disclose this without appearing to criticise him.
We suggest that evidence of recent complaint holds little intrinsic probative value since it relies upon
t wo dubious assumptions: fi rst, that the natural impulse of an abused child is to complain
immediately to someone (who is also willing to testify to that effect), and second, that the child will
not be sufficiently quick-witted to make up a story immediately following the alleged incident. The
evidence is vested with probative value only if and when the defence alleges that the story was
fabricated well after the event. The converse of the recent complaint doctrine is that it invites
attacks on child witnesses on the basis of delayed complaint, although the child’s conduct in keeping
the abuse secret reflects a pattern familiar to experts in this field.
These concerns have motivated some other common law jurisdictions to adopt a range of solutions:
• The Canadian Parliament abrogated the rules relating to evidence of recent complaint in
sexual offences in 1983 (Criminal Code of Canada s.275); however, the prosecution during its
case in chief can still prove that a complaint was made and convey some sense of the context
as part of the ‘narrative’ of how the case reached trial, without reference to the substance of
the complaint.
• In three Australian states the trial judge is required by statute to caution the jury that delay in
complaining does not necessarily indicate that the allegation is false, and that there may be
65
good reasons why a victim of a sexual assault may hesitate in complaining about it (Crimes Act
1958 (Vic) s.61; Crimes Act 1900 (NSW) s.405B(2); Evidence Act 1906 (WA) s.36BD). In New
Zealand the parallel judicial directions are discretionary rather than mandatory (Evidence Act
1908, s.23AC).
• Western Australia and Queensland have created specific statutory exceptions for hearsay
statements by children, which subsume complaint evidence (Evidence Act 1906 (WA) s.106H;
Evidence Act 1977 (Qld.) s.93A). The Australian Law Reform Commission has recommended
that all Australian jurisdictions should where necessary admit “reasonably reliable” hearsay
statements of children relating to alleged abuse, but an uncorroborated hearsay statement
could not ground a conviction (Aus LRC, 1997, para. 14.82 and recommendation 102).
Reform of the recent complaint doctrine presents a conundrum. The fact that a complaint was
made, and its timing, are not evidence that the offence occurred. A child’s complaint acquires
probative value affecting his credibility, if at all, only when set in the context of the surrounding
c i rcumstances, including his age and maturi t y, relationship with the alleged perpetra t o r, and
availability of support from others. Defenders of the doctrine maintain that, however flawed its
foundations, it helps protect victims of sexual offences by bolstering their credibility where often
there is no other evidence to support them.9 However, in its operation the doctrine protects victims
only to the extent that they conform to a particular stereotype. Preserving an evidentiary rule
because of lingering prejudice is unattractive if the evidence itself lacks probative value and distorts
the process of proof in favour of either the complainant or the defendant.
Expert Testimony
Expert medical testimony regarding physical findings claimed to be consistent or inconsistent with
sexual abuse was tendered in six cases. In five of these the police surgeon or paediatrician who
examined the child for the purposes of the police investigation gave evidence for the prosecution.
An expert was also tendered by the defence in three of these cases. The defence expert in each case
used the examining doctor’s notes as the basis for his opinion. This was recommended by the
Cleveland Report, to reduce the number of medical examinations of the child for forensic purposes
(para. 11.51).
Guidance since the Cleveland Report has stressed that medical signs are usually not definitive in cases
of child sexual abuse, and should not be presented by doctors or considered by the judiciary as
having a ‘central and determining role’ in any subsequent court proceedings (Cleveland Report,
1988, p.243; Royal College of Physicians, 1991, p.1). No doctor in the cases in our sample made
definitive findings that abuse had occurred. The most they did was identify physical signs as
consistent with the complainant’s account of the assault. However, as one barrister argued in his
closing submissions (case 6A), even this finding can be equivocal. A medical examination could only
state that physical signs existed, and could not identify the perpetrator of the assault unless the child
had complained immediately and forensic samples had been taken to enable DNA testing. This did
not happen in the cases which we monitored.
In only one case (case 55B) did the prosecution consider tendering psychological evidence. The
police had obtained a witness statement from a psychiatrist with expertise in child sexual abuse to
explain why victims may delay disclosure. This was in the hope that this would deflect defence
attacks based on the fact that the psychologically fragile complainant had concealed the ongoing
abuse for many years. The case was concluded without trial, so this initiative was not tested in court.
In case 57B defence counsel had obtained two expert witness statements from a well-known forensic
psychologist, one to show that the defendant was of low IQ and so unable to give reliable responses
to police questions, and the other analysing the statement of the complainant to demonstrate that it
was a badly conducted interview which was oppressive to the child. Counsel decided not to attempt
to tender the latter report in evidence after G. v DPP ruled such expert testimony inadmissible,10 but
he told us that he found it useful in preparing his cross-examination of the child. A summary of the
report concerning the police interview with the defendant was eventually read in agreed form to the
jury.
9. R. v H. [1997] 1 NZLR 673 at 692 per Thomas J. (CA); Myers,1997, Vol. 2, p.245.
10. G. v DPP [1997] 2 All ER 755 (QBD).
66
The cases in our sample thus demonstrated the inherent limitations of expert testimony respecting
physical evidence of sexual abuse. Studies in America have suggested that physical or laboratory
evidence of child sexual abuse is found in only 10 per cent to 50 per cent of cases (Myers, 1997, vol.
1, para. 5.19, note 435). Particularly in cases of alleged long-term abuse, such evidence is likely to be
equivocal at best. Where there are no physical signs of abuse, medical experts nonetheless may be
useful in countering erroneous expectations of jurors that certain types of sexual abuse, such as
penile penetration, necessarily will cause physical injury (Myers, 1997, vol. 1, p.492).
Expert evidence from psychiatrists or psychologists about the child’s behaviour is even more
problematic. As indicated in Chapter II, in England such evidence is admissible in the family courts
but not in the criminal courts, whereas in New Zealand (Evidence Act 1908 subs. 23(G)(4)), the
United States 11 and Canada 12 it is commonly received in criminal proceedings to rehabilitate a child
witness’s credibility. Experts are permitted to explain why victims may delay disclosure, initially
d e ny abuse or recant their ori ginal complaints, and may comment on ch i l d re n ’s capacity to
remember, and the means by which their memory may become corrupted. In these jurisdictions
there is a broad consensus that while it is not permissible for an expert to express a direct opinion as
to whether a child witness is telling the truth, it is possible for prosecution and defence experts to
educate the jury about typical responses to child abuse without infringing this rule. Given that the
child’s credibility is so often the crux of the prosecution’s case, there may now, for this limited
purpose, be a case for re-examining the English prohibition on such evidence.
Judicial Attitudes and Practices
Most judges ha ve embraced the new approach to child witnesses, especially the procedural changes
which have accompanied reforms to the substantive rules of evidence. However, it appears to us
that a small minority continues to resist these modifications to the conventional adversarial trial
process. This situation can persist because the procedural changes mandated by Parliament have
been set in a statutory framework conferring wide judicial discretion, governed by imprecise criteria
such as “the interests of justice” (as in CJA 1988 subs. 32A(3)(c) concerning the admissibility of
videotaped interviews), or else no guidelines at all (as in CJA 1988,subs. 32(1) concerning use of the
videolink). Such judicial resistance is, as we say, the exception, but it is nonetheless problematic
since we found that it influenced the whole tenor of child abuse investigations, including the
decision to prosecute.
In some of the trials which we observed counsel were permitted to make submissions to the jury
which had no foundation in the evidence, such as suggesting that the complainant may have made
prior allegations, but the jury “would never know this” (case 43A), or presenting the assertion that
“normally functioning families do not need social workers” as a relevant factor in assessing the
c redibility of a child from that fa m i ly (case 6A). Because the defence has the last wo rd, the
prosecution cannot rebut such submissions and must rely on the trial judge to correct the comment.
There is no right of appeal from a judge’s ruling that prosecution evidence, such as the child’s
interview, is inadmissible, even if the ruling is based on an error of law. Judges have considerable
latitude in their directions to the jury provided they do not prejudice the defence. While the last of
the mandatory corroboration warnings affecting children’s testimony was abolished in 1994, judges
still have residual discretion to warn jurors that it would be dangerous to convict on the evidence of
a child witness where this is not supported by independent evidence.13 In case 6A the judge
directed the jury to seek corroboration because of the 11-year-old complainant’s “age and disabilities
and behaviour”. There was no evidence that the child suffered from any mental disability which
could af fect her capacity to give accurate testimony other than that of a rudimentary arithmetic and
spelling test which the defence counsel had taken her through in cross-examination. The tendency
of some judges to administer corroboration warnings influenced the thinking of police officers and
11. US v Snipes 18 M. J. 172 at 179 (C.M.A. 1984); People v. Bowker 249 Cal. Rptr. 886 (Cal. CA, 1988); State of New Jersey v J. Q. 617 A 2d 1196 (NJ SC,
1993); Myers, 1997, Vol. 1, para. 5.49.
12. R. v Burns [1994] 1 SCR 656 at 666; R. v Marquard (1993) 108 D.L.R. (4th) 47 at 62, 81–83 (SCC).
13. The Australian Law Reform Commission identified lingering judicial resistance to the abolition of corroboration warnings, even where expressly
prohibited. It recommended that judges be prohibited from suggesting that children are an unreliable class of witness and that warnings be allowed only
where a party can show exceptional circumstances affecting the reliability of that child’s evidence [Australian Law Reform Commission, Seen And Heard at
paras. 14.67–14.73, and recommendation 100].
67
CPS lawyers, making them wary of prosecuting cases that rested entirely on the credibility of the
complainant.
In principle the rules of evidence apply equally to the defence and to the prosecution,14 but there is
an important practical difference in that the Crown has no effective rights of appeal against an
acquittal. The Attorney General has limited power to refer to the Court of Appeal any point of law,
but any ruling that the trial judge erred in law cannot affect the acquittal verdict of the jury.15 In
practice the Attorney General refers cases only where an important point of law has arisen which it is
considered necessary to correct before it is widely adopted.16 It follows that errors respecting the
admissibility of evidence, or errors of law in summing up, are likely to go unchecked where these
favour the defence.
The Probative Value of the Videotaped Interview
• The three purposes of the videotaped interview, as the initial step in a criminal investigation,
as an inquiry into whether the child needs protection, and as examination-in-chief, can
produce testimony which may be incomplete, difficult for the jury to understand and
evaluate, or inadmissible. The restrictions upon supplementary examination-in-chief by
counsel at the trial made it difficult for the prosecution to improve its case beyond the child’s
initial, often inadequate disclosure of the offence.
Child Witnesses in Court
• Overall, the statutory reforms providing special procedures for children’s testimony in court
had bedded down fairly well in our subject areas. Most trial judges approached cases
involving child witnesses from the starting point that it was in the interests of justice to admit
the videotaped interviews and to afford them the special procedures for their testimony.
• The reliability and credibility of children’s testimony could be eroded by delay at two
junctures: in bringing the case to trial, and in calling child witnesses to testify at the trial.
Delay could damage the quality of children’s evidence by impairing their memory of events,
particularly details on which they may be challenged in cross-examination, and by
exacerbating the stress of recounting painful experiences in an alien environment.
• The progress of child abuse cases in the Crown Courts included in the study was still slower
than other types of case, despite the ‘fast-tracking’ policy in one court. In our subject areas
the progress of all child abuse cases was not specifically monitored to identify bottlenecks.
PDHs often acted as a brake rather than an accelerator. As a consequence, child witnesses
sometimes arrived in court not knowing how they would testify, and often were kept waiting
while preliminary applications were made or other cases were dealt with by the trial judge.
• Even where child witnesses were afforded the protection of the videolink or a screen and
were treated with consideration by the trial judge and counsel, as most were, many still
showed signs of stress. This in turn could affect the quality of their testimony.
• Prosecuting counsel felt that they had to rely upon the trial judge to intervene in an
intimidating or unfair cross-examination, or to correct improper attacks on the complainant’s
credibility during the defence’s address to the jury; however, a few judges appeared reluctant
to do this.
• Some child witnesses were cross-examined on previous sexual encounters which were non-
consensual in fact or in law, with a view to impugning their credibility.
14. Sparks v R. [1964] AC 964 (PC).

15. Criminal Justice Act 1972 s.36. In Canada the prosecution has a full right of appeal from an acquittal on any question of law such as the admissibility of
evidence or a direction to the jury. Respect is accorded the accused’s right to a final jury verdict by restricting the appellate court’s jurisdiction to ordering
a new trial rather than substituting a conviction [Criminal Code of Canada ss.676(1), 686(4)].
16. Attorney-General’s Reference (No. 1 of 1975) [1975] QB 733 (CCA).
68
Other Evidence to Support or Undermine the Child Witness’ s Credibility
• We observed that child witnesses were still attacked in cross-examination for delaying their
complaint, even though this was consistent with well-recognised patterns of secrecy,
embarrassment and shame in response to child sexual abuse.
• The physical evidence in child sex abuse cases tended to be equivocal at best. These
prosecutions relied essentially on the word of the child.
69
70
Chapter VI: Alternative Models for Eliciting Children’s Testimony
CHAPTER VI: ALTERNATIVE MODELS FOR

ELICITING CHILDREN’S TESTIMONY
In this chapter we describe law reform initiatives in other jurisdictions which attempt to address
some of the problems identified in our fieldwork arising from the current system for the reception of
ch i l d re n ’s testimony. While many ‘inquisitorial’ systems take innova t i ve appro a ches to ch i l d
witnesses, we limited our research to jurisdictions following the adversarial trial model as these are
more likely to be compatible with the English criminal justice system. We considered Australia,
Canada, New Zealand, Scotland and the United States. Reform measures in these jurisdictions were
prompted by academic research and reports by law reform bodies concluding that the orthodox
adversarial trial is inappropriate for cases involving child witnesses. The diverse solutions devised by
legislators and judges are rooted in common premises: first, that the common law’s assumptions that
children’s evidence is necessarily unreliable can no longer be supported; secondly, that the truth-
seeking objective of the trial process requires that procedures enable children to provide the best
evidence of which they are capable; and thirdly, that the conventional trial model can be modified to
accommodate children’s needs without depriving defendants of a fair trial, particularly their right to
test fully the prosecution’s evidence. Statutory law reform in these jurisdictions typically includes a
p a ck age of measures modifying both common law and statutory rules of evidence, incl u d i n g
abolishing mandatory corroboration warnings, modifying the test of testimonial competence for
children, authorising CCTV and screens for children’s live testimony in court, and making videotaped
interviews admissible as examination-in-chief. The discussion hereafter will be confined to initiatives
which go beyond the existing English statutory regime for the reception of children’s evidence.
In the United States and Canada pro t e c t i ve measures for child witnesses must not infri n ge
constitutional guarantees of defendants’ rights to procedural fairness. Guidance by Canadian and
American courts respecting measures balancing the interests of participants in the trial is particularly
relevant given the recent incorporation into English domestic law of similar guarantees under Articles
5 and 6 of the European Convention of Human Rights (Human Rights Act 1998, c. 42).
Variations on ‘Half Pigot’
We identified two technical problems with the English system of using a videotaped investigatory
interview as a child’s examination-in-chief. These are the inflexibility which this imposes on the
prosecution, and the uncertainty for children created by delayed decisions about the use of special
procedures for their testimony. We looked for regimes which addressed these problems.
Canada
Under Canadian criminal law (which falls under federal jurisdiction) the criteria for the admissibility
of videotaped interviews are more restricted than in England (Criminal Code of Canada, s.715.1).
However, the potential advantage which the Canadian procedure has over its English counterpart is
that the Crown prosecutor, a government-employed barrister, has an unfettered choice as to how to
use the videotaped interview.1 The legislation requires that the child “adopt” the videotaped
interview in court as his testimony, confirming that he made the statement and that it was true.
Accordingly the child will be asked some preliminary questions by prosecuting counsel to lay the
foundation for admission of the videotape. If the interview does not pose any evidential problems
1. R. v L. (D.O.) [1993] 4 SCR 419 at 449, 450.
71
and fully discloses all the evidence that the child has to offer, the prosecutor may elect to have it
replace live examination-in-chief altogether. Prosecutors frequently opt to use the videotape as an
introduction to oral examination-in-chief, either to supplement the child’s narrative of the events or
s i m p ly as an historical re c o rd of how the discl o s u re emerged (with the tangential benefit of
demonstrating the child’s consistency).
The Supreme Court of Canada’s determination to take a “common sense approach”2 to the evidential
p ro blems of child abuse prosecutions is exe m p l i fied by its interpretation of the videotaping
p rovisions. The Court has addressed the evidential difficulty created where a child witness
contradicts statements in the videotape in oral testimony.3 Such contradictions do not bar the
videotape from evidence, but rather should be weighed by the jury with great care. The standard for
assessing credibility applied to an adult is not always appropriate in assessing a young child, as the
peculiar perspectives of children can affect their recollection of events. Inconsistencies, especially
regarding peripheral matters, should be assessed in context. A skilful cross-examination is almost
certain to confuse even a truthful child, and that confusion can lead to inconsistencies in the child’s
testimony.4
In R. v L. (D.O.), the defendant argued that the admission of videotaped interviews contravened his
rights to a fair trial under the Canadian Charter of Rights and Freedoms (1982). The Supreme Court
upheld the legislation. There is no constitutional right of ‘face to face’ confrontation in Canadian
law, nor is an accused entitled to be present when evidence is recorded for later use in court, or to
cross-examine immediately following examination-in-chief. The legislation guarantees the reliability
of the evidence, because the child must adopt the taped testimony at trial. It is necessary to adduce
evidence in this form because of the child’s possible loss of memory by the time of the trial, and the
possible negative consequences of testifying in court. A frequent objection to the Canadian and
English legislation is that there is little sense in protecting a child from the formality of a courtroom
for the purposes of direct examination and yet subjecting him to the rigours of cross-examination in
that same setting. L’ H e u reux-Dubé J. concluded that the provisions nonetheless successfully
accommodate the needs of child witnesses. The taped testimony enables the court to hear a more
a c c u rate account of the ch i l d ’s story when it fi rst came to light, reveals how the child wa s
questioned, allows the suspect to view the videotape during the investigation, and often assists in
eliciting a guilty plea. It also reduces the time the child spends in the witness box, and supplements
the evidence of a child who is inarticulate or forgetful at trial. The legislation was also regarded as
complying with the United Nations Convention on the Rights of the Child.5 R. v L. (D.O.) therefor e
suggests that England’s broader videotaping provisions would comply with the European Convention
on Human Rights.
New Zealand
New Zealand’s approach to the use of videotaped interviews in court is likewise flexible. In 1989
New Zealand (a unitary jurisdiction) introduced a comprehensive package of measures applicable to
the evidence of complainants under age 17 in cases of a sexual nature (Evidence Act 1908,
ss.23C–23.I; Evidence (Videotaping of Child Complainants) Regulations 1990 SR 1990/164). In 1995
the Court of Appeal extended these protections to children complaining of physical abuse.6
As in Canada, New Zealand prosecutors have discretion to use the videotaped interview as part of
examination-in-chief.7 The trial judge has jurisdiction to order reports from any persons she consider s
qualified to advise on the effect on the complainant of testifying in open court or with protections
such as CCTV or a screen. Where the complainant testifies through CCTV or an audio link, the trial
judge may direct that any questions be relayed to the child by a person approved by the judge. If the
judge considers it appropriate and the necessary facilities are available, the child’s testimony may be
given at a location outside the court precincts and videotaped. The judge may stipulate the persons
who may be present while the complainant is giving evidence, including the accused and counsel.
2. R. v B. (G.) [1990] 2 SCR 30 at 54–55.

3. R. v F. (C.C.) [1997] 3 SCR 1183, reported in the Courts below as R. v Folino.
4. See also R. v W. (R.) [1992] 2 SCR 122 at 132–134.
5. R. v L. (D.O.) [1993] 4 SCR 419 at 448–451, 465.
6. R. v Moke and Lawrence [1996] 1 NZLR 263.
7. R. v Lewis [1991] 1 NZLR 409 (CA).
72
The judge views the videotape before the trial and may order any inadmissible evidence to be cut.
The legislation does not expressly state whether cross-examination shall take place at the videotaped
session or at trial; it appears that at present cross-examination takes place at trial.
Australia
In Australia, where criminal law comes within State jurisdiction, New South Wales offers one possible
solution to the uncertainty which child witnesses may experience as to whether special procedures
will be invoked for their testimony. The Evidence (Children) Act 1997 requires that all interviews
with a child be audio or video-recorded. The child has the right to have the videotape admitted in
evidence, use CCTV to testify in court, use alternative facilities if CCTV is not available or if the child
so wishes, and have a supporter of his choice present during the testimony. The thrust of the
legislation is to give children control over the way in which their testimony will be presented to the
court. The Court has residual discretion to override the wishes of the child only in respect of the
admission of the videotaped interview, which can be excluded if the court is satisfied that this is in
the interests of justice. A child testifying at trial is entitled to use CCTV or a screen; the judge must
be satisfied, before dispensing with the routine statutory protections, that the child is able and
wishes to testify in the defendant’s presence in court. This is the reverse of most jurisdictions, which
require an application to permit the child to use special procedures. Western Australia (Evidence Act
1906 (WA) ss.106N, 106O) and Tasmania (Evidence Amendment (Children And Special Witnesses)
Act 1995 (No. 37 of 1995), s.122H) have a similar child-centred approach. The Australian Law
Reform Commission has recommended that the New South Wales model be adopted in all Australian
jurisdictions (Australian LRC,1997, recommendations 108 and 109).
Evaluation of Variations on ‘Half Pigot’
Flexibility in Using the Videotaped Interview as Evidence at Trial
The Pigot Report envisaged that the video-recorded interview would be shown to the child at the
preliminary hearing, and the child would be “asked to confirm the account which it gives and to
expand upon any aspects which prosecution wishes to explore” (at para. 2.31). The Canadian and
New Zealand approaches incorporate this flexibility, leaving prosecuting counsel to decide whether
to use the interview as complete substitution for oral examination-in-chief or as only one segment of
that evidence. The possible advantages include:
• interviewers have greater freedom to act as investigators. While they must avoid
contaminating the evidence, they can conduct interviews with greater confidence knowing
that counsel can fill in gaps created by oversight or by errors which produce inadmissible
evidence
• prosecutors can use the interview to show how the disclosure emerged and to reveal the
child’s emotional state, but can organise the evidence into a more coherent and chronological
narrative for the jury through further live examination-in-chief. Prosecutors consequently may
be less inclined to abandon altogether a video interview with unsatisfactory segments
• the prosecutor can ease the child into the process of testifying prior to cross-examination
• the prosecution can decide whether to proceed and can prepare for trial without having to
predict whether the court will grant leave for supplementary questions to bridge evidential
gaps.
A possible disadvantage is that the child is likely to spend more time testifying at trial.
Giving Child Witnesses Control Over How They will Testify
The possible advantages of the New South Wales approach (or a variation thereof), are:
• the police can tell the child and the family what to expect in court, which may assist them in
deciding whether to agree to prosecution
73
• the child may be a more confident witness as a result of more effective pre-trial preparation
and support
• delays caused by applications for special procedures would be eliminated, and court time
saved.
The possible disadvantages are:
• a particular class of witness is allowed to decide the strategy for the prosecution in presenting
its case, undermining the fundamental premise of the criminal justice system that
prosecutions must serve the interests of the public, not any one participant
• children may not make a truly informed choice without skilled pre-trial preparation; even
then, they are unlikely to appreciate all of the implications of the choices facing them.
Variations on ‘Full Pigot’
Apart from the technical difficulties identified above, we identified three more fundamental concerns
with the current English approach to the evidence of child witnesses:
• the competing functions of the initial interview with the child can produce evidence that may
be incomplete, difficult to comprehend or inadmissible
• the prolonged interval between examination-in-chief and cross-examination can undermine
the integrity of the child’s evidence
• notwithstanding the ‘fast-track’ policy, a child witness is involved in the criminal justice
system over a prolonged period. This may impair the quality of the child’s testimony to the
detriment of the prosecution and defence case; it may also jeopardise the child’s welfare.
Other jurisdictions have identified the same problems and have sought solutions in variations of ‘full
Pigot’ whereby the entire evidence of a child witness is recorded at a pre-trial hearing.
The United States
Criminal law is generally a matter of State jurisdiction in America, although there is limited Federal
jurisdiction in respect of some offences. There is considerable variation across the 50 states in the
procedural and substantive rules. These must comply with not only the US Constitution, but also the
appropriate State Constitution, making it difficult to generalise about American law concerning child
witnesses.
The principal constitutional hurdle for protective measures for child witnesses is the right of
confrontation in the Sixth Amendment to the US Constitution which, if interpreted strictly, could bar
all hearsay evidence and require a face-to-face encounter between a testifying witness and the
accused. However, the US Supreme Court has generally been flexible in its interpretation of the
confrontation right in order to accommodate the special needs of child witnesses.
In the leading case of Maryland v Craig,8 the US Supreme Court by a bare majority approved State
legislation permitting the child witness, prosecutor and defence counsel to withdraw to another
room for the child’s testimony, with the judge, jury and defendant watching on a videolink. The
Sixth Amendment does not guarantee criminal defendants an absolute right to a face-to-face meeting
with the witnesses against them at trial. A State’s interest in the physical and psychological wellbeing
of child abuse victims may be sufficiently important to outweigh a defendant’s right to face his or her
accusers in court. The trial court must hear evidence to determine whether the procedure is
necessary to protect the particular child witness’s welfare, and must find that the child would suffer
more than minimal trauma if the defendant were present.9
Notwithstanding the split Court, the reasoning in Craig was regarded by State legislatures as giving
the necessary constitutional imprimatur to special provisions for child witnesses, provided the
8. 497 U.S. 836 (1990).
9. See also Coy v Iowa 487 US 1012 (1998).
74
prosecution adduces sufficient evidence that a particular child requires this protection. Thirty-six
states and the United States Congress have now authorised the use of videotaped testimony of a child
witness in lieu of any testimony in court.
Videotaped depositions must clear a second constitutional hurdle, as they technically are hearsay
which prima facie infringes the constitutional right to confrontation. The US Supreme Court has
found hearsay evidence admissible where the person making the hearsay statement is available to be
cross-examined at trial. 10 The purpose of videotaping a child’s testimony, however, is to obviate the
need for the child to appear at the trial. The Supreme Court has established two requirements for
hearsay from an absent witness to be admissible: the prosecution must show that the person making
the hearsay statement is “unavailable”; and the hearsay evidence must bear “adequate indicia of
reliability”.11
In Maryland v Craig the Supreme Court declined to establish a requisite level of apprehended har m
to the child witness in order to find that the child is “unavailable” so as to justify the use of CCTV.
This has encouraged states to adopt definitions of “unavailability” in videotaped deposition statutes
which go beyond the usual reasons (such as illness or refusal to testify) to include serious or
significant emotional harm to the child if the child were to testify in court,12 or inability to testify
through fear or incompetence.13 The courts have latitude in determining whether a witness would
suffer trauma sufficient to warrant excluding the defendant from the video room.14
E x t rapolating from Supreme Court rulings respecting the admissibility of hears ay statements,
videotaped deposition statutes incorporating the following indicia of reliability have been found to
satisfy constitutional requirements: the hearing is held under circumstances closely approximating
those of a typical trial; the witness is under oath; the defendant is represented by counsel; the
defendant has every opportunity to cross-examine; and proceedings are conducted before a judicial
tribunal equipped to provide an accurate record (National Centre for Prosecution of Child Abuse,
1993, vol. 1, p.491). Only Illinois and Indiana have found that child witness videotaping statutes
i n c o r p o rating these fe a t u res nonetheless contravene their State constitutions. These we re
i n t e r p reted as re q u i ring literal fa c e - t o - face confrontation between a defendant and the ch i l d
witness.15 However, 15 other states with identical constitutional language have upheld statutes
permitting videotaped testimony.
The Federal legislation has provided the model for many State statutes (US Code, 18 U.S.C.A. § 3509).
The provisions apply to a victim or eyewitness under the age of 18 where the offence involves
physical or sexual abuse or exploitation. The child must be likely to be unable to testify in court in
the physical presence of the defendant, jury, judge and public. Alternatively, expert testimony must
establish that there is a substantial likelihood that the child would suffer emotional trauma through
testifying in open court. The persons present at the videotaping may include: the prosecuting and
defence attorneys, the child’s attorney or guardian appointed for the legal proceedings, and other
persons whose presence is ruled necessary to the welfare and well-being of the child. The defendant
is entitled to be present unless the court’s finding of ‘unavailability’ is based on evidence that the
child is unable to testify in the physical presence of the defendant, in which case two-way CCTV is to
be used to enable the defendant and the child to see one another during the testimony. Also, the
defendant must be provided with a means of private contemporaneous communication with his
lawyer during the deposition. If new evidence is discovered after the original videotaping and before
or during trial, the court, if satisfied that good grounds have been established, may order an
additional videotaped deposition. The testimony of the child must be restricted to the matters
specified by the court as the basis for granting the order.
The American statutes permitting pre-trial depositions have been considered in a host of cases,
indicating widespread usage. The American Pro s e c u t o rs Research Institute concludes that
10. California v Green 399 US 149 at 158–161 (1970).

11. Ohio v Roberts 448 US 56 (1980).
12. Perez v State 536 So. 2d 206 (Florida, 1988); People v Newbrough 803 P. 2d 155 (Colorado 1990); Altmeyer v State 496 NE 2d 1328 (Indiana CA, 1986).
13. State of Idaho v Giles 772 P. 2d 191 (1989); People v Rocha 547 NE 2d 1335 (Illinois Appeal Court, 1989); State of North Carolina v Chandler 376 SE 2d
728 (1989); State of Arizona v Robinson 735 P. 2d 801 (1987); State of South Dakota v McCafferty 356 NW 2d 159 (1984).
14. State of Missouri v Davidson 764 SW 2d 731 (CA); State of Connecticut v Spigarolo 556 A. 2d 112, certiorari denied 493 US 933 (1989). See Myers, 1998,
Vol. 2 pp.88–92.
15. People v Bastien 541 NE 2d 670 (Illinois 1989); Brady v State 575 NE 2d 981 (Indiana 1991).
75
videotaped testimony has been less controversial than videotaped interviews (Vol. 1, p.487). This is
interesting because the experience of Commonwealth jurisdictions considering implementation of
‘Full Pigot’ has been the converse.
Existing Models of ‘Full Pigot’ in Australia
Western Australia has been the boldest of the Australian States16 in comprehensively reforming the
criminal trial process to accommodate the needs of child witnesses, including videotaping the whole
of the child’s testimony before trial and using a ‘communicator’ to explain questions to the child and
to clarify the child’s answers to the court (Acts Amendment (Evidence of Children and Others) Act
1992, No. 36 of 1992, amending the Evidence Act 1906). The legislation permits videotaped
interviews to be used in lieu of examination-in-chief or to supplement questioning by prosecution
counsel, but in practice this is not done as the Child Witness Service prefers counsel to lead the
child’s evidence. The Court may direct that that examination-in-chief be videotaped before trial and
played later for the jury. The Crown may apply to have all of the child’s testimony recorded before
trial, with the cross-examination and any re-direct examination usually immediately after direct
examination. If necessary, more than one pre-trial hearing can be held to receive the child’s
evidence. The trial judge has discretion over the manner in which pre-trial testimony is taken and
may order editing of the videotape. The child then need not attend the trial. The statute recognises
that some children may still be required to appear at trial for further questioning, but this has rarely
been required (Australian LRC, para. 14.46). The provisions are designed to create maximum
flexibility, and are intended to be applied in the best interests of the child witness. This regime
applies to children who are under the age of 16 on the date of the complaint, where the defendant is
related to the child, lives in the same household or at any time has regularly cared for the child, and is
charged with physical or sexual abuse or kidnapping of the child.
Guidelines developed by judges of the Supreme Court of Western Australia prescribe in detail the
physical arrangements for pre-trial hearings, camera shots, procedures for dealing with objections to
questions, explanation of the proceedings to the child by the trial judge, and editing and
transcription of the videotapes. The guidelines stress that the videotape of the hearing must be made
with the jury in mind (S u p reme Court of We s t e rn Au s t ra l i a, 1996,1998). It was ori gi n a l ly
recommended that the recording would be made in an informal setting with all participants except
the accused in the same room, as the Pigot Committee had envisaged. In practice court officials and
counsel have found it easiest to use the CCTV facilities in the Supreme Court. The child witness is in
the videolink room, with the judge, counsel and accused in the main courtroom (O’Grady, 1996
pp.34–36).
The Western Australian legislation came into operation in November 1992. The Ministry of Justice
conducted an empirical study of the use of the new procedures in 75 jury trials, including interviews
with the jurors, judges, counsel and the child witnesses. There was strong support across these
sectors for the routine use of these procedures (O’Grady, 1996, Executive Summary, pp.ii–iv).
Defence concerns when the system was first implemented led to most videotaping being done
shortly before trial, which obviously can defeat the purpose of capturing the child’s account before it
deteriorates with time (O’Grady, 1996, Executive Summary pp.iv, v). However, it is now the practice
that prosecutors apply at the plea stage for pre-trial videotaping; if the application is successful, the
child’s testimony is completed on average within a seven month period, five to six months earlier
than if it were given at trial. While lawyers were initially slow to use the pre-trial videotaped
recording of evidence, the establishment of the Child Witness Service (Bellett, 1998) has prompted a
marked increase in the use of pre-trial hearings. Between July 1997 and November 1998, 54 children
gave pre-recorded evidence. Twenty-four applications for pre-recording were granted in October and
November 1998, with a further 15 requests pending. The DPP currently routinely applies for orders
for pre-trial testimony for child witnesses under the age of ten; applications are made in respect of
older children in special circumstances, based on an assessment by the Child Witness Service of their
16. Queensland has had legislation since 1989 allowing the evidence of a ‘special witness including a child under the age of 12’ to be videotaped under
conditions specified by court order [The Criminal Code, Evidence Act And Other Acts Amendment Act 1989, No.17, amending Evidence Act 1977 (Qld)
s.21A.].The DPP of Queensland uses the provisions only rarely, apparently because there are no rules of court providing a procedural framework for the
legislation [Evidence of Children at para. 4.38].
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needs. However, the DPP is now considering making these applications for all witnesses under the
age of 16.17
Proposed models of ‘Full Pigot’ in Australia
In November 1997 the Au s t ralian Law Refo rm Commission and the Human Rights and Equal
Opportunity Commission made joint recommendations respecting children’s evidence under Federal
and State law. This would establish a uniform approach across the country, in many respects using or
adapting the Western Australian model, particularly the video-recording of the entire evidence of
child witnesses prior to the trial. The Commission considered that such hearings should be
conducted whenever the interests of justice require, but particularly when the child may be at risk of
p rejudice or trauma due to lengthy delays (Au s t ra lian LRC, 1997, recommendation 94).
Recommendations for ve rsions of ‘Full Pigot’ had alre a dy been made by the L aw Refo rm
Commissioner of Tasmania (1990, recommendations 4,5). In 1997 in New South Wales a Royal
Commission chaired by Mr Justice Wood investigated the Police Service’s handling of paedophile
i n q u i ries. The Commission made compre h e n s i ve proposals to re fo rm the investigation and
prosecution of child abuse. It favoured the Western Australian regime of pre-trial hearings, but
recommended that they be used where the suggested maximum time of six months from charge to
trial would be exceeded, or where the nature of the case suggested that a child under 12 would be at
particular risk of trauma or prejudice through delay (NSW Royal Commission, Vol. V, para. 15.80).
The New South Wales Government has decided to defer implementation of this recommendation
until further efforts are made to expedite child abuse trials.18
Proposals for ‘Full Pigot” in New Zealand
A 1996 discussion paper by the New Zealand Law Commission provisionally recommended that New
Zealand move from its current ‘Half Pigot’ regime to a ‘Full Pigot’ model, making pre-trial cross-
examination on videotape available for child complainants who have given evidence-in-chief on
videotape. This was in order to decrease their trauma, improve the accuracy of their evidence, and
allow counselling to focus on recovery rather than trial preparation (New Zealand LC,1996, paras.
144–158 and ss.20–21 of draft Bill). The Commission commended the Western Australian model,
concluding that it would not affect defendants’ rights to cross-examine provided that full and early
disclosure of the prosecution case occurs and that the court, if it was “desirable in the interests of
justice”, could order further cro s s - examination at another pre - t rial hearing or at trial. The
Commission considered that this regime would not erode the defendant’s rights to confrontation
under the New Zealand Bill of Rights ss.25(e) and (f), or to a fair trial. However, the Courts
Consultative Committee believed that there were practical difficulties with the proposal, in particular
concern about multiple cross-examinations (New Zealand Courts Consultative Committee, 1996,
p.25). The proposals garn e red support from community groups and some pra c t i t i o n e rs, but
encountered strong opposition from the defence Bar. The Law Commission’s final report is expected
in 1999.
Scotland
In Fe b ru a ry 1990 the Scottish Law Commission recommended compre h e n s i ve re fo rm of the

procedures and rules of evidence governing the testimony of children and other vulnerable witnesses
(Scottish LC, 1990). These largely replicated those in the Pigot Report. In addition to proposing the
introduction of CCTV, screens and the admission of children’s prior statements (recommendations
18–19, paras. 4.45–4.66), the Commission recommended that as an alternative to in-court testimony
the entire evidence of a child witness be videotaped in pre-trial proceedings (recommendation 10,
paras. 4.10–4.16). In a curious inversion of the statutory fate of the Pigot Report, Parliament chose
to implement pre-trial videotaping of the child’s entire testimony in Scotland, but not to render
admissible any earlier videotaped interviews with the child.
17. We are indebted to Shannon Bellett, Co-ordinator of the Child Witness Service in the Court Service, Ministry of Justice in Perth, for compiling the statistics
in this paragraph at our request.
18. Information pr ovided to the researchers by the Director of the Office of Children and Young People in the Cabinet Office, Government of New South
Wales. The programme of legislative reform has begun, making recorded interviews of children under 16 admissible (Evidence (Children) Act 1997 (No.
143), proclaimed on Dec. 17, 1997) and entitling child witnesses to use CCTV and to have a supporter present [Crimes Amendment (Children’s Evidence)
Act 1996 (No. 68)].
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The Prisoners and Criminal Proceedings (Scotland) Act 1993, ss.33 and 56, gives the court discretion
to order that the entire evidence of a child witness under the age of 16 be video-recorded before a
‘commissioner’ pre-trial. The Law Commission had recommended that the trial judge preside at the
pre-trial proceedings, but the statute stipulates that the commissioner must be an advocate or a
solicitor of five years standing. The provision applies to the Sheriff Court and the High Court of
Justiciary. Unlike the English legislation, there is no prescribed list of offences. A commissioner may
be appointed at any time before the oath is administered to the jury, or in exceptional circumstances
during the course of the trial, presumably if the child witness is unable to continue testifying by
conventional means. There must be evidence before the court as to the possible effect on the child if
he is required to give evidence in the normal manner, and as to whether it is likely that the child
would be better able to give evidence if such application were granted. The court may take into
account the age and maturity of the child, the nature of the alleged offence, the nature of the
evidence which the child is likely to be called on to give, and the relationship, if any, between the
child and the accused. The accused is not present unless the commissioner permits, but is entitled
to watch and hear the proceedings as directed by the commissioner. The video-recording is then
played at the trial in place of live evidence by the child.
While the videolink provisions have been used in Scottish courts (M u rray,1995, p.164), the
provisions for videotaping pre-trial testimony apparently have not been used. The suggested reasons
are instructive for those considering implementation of ‘Full Pigot’ in England and Wales. First,
procurators fiscal, responsible for prosecuting criminal cases, are reluctant to depart from the
traditional mode of presenting a witness. Secondly, judges are vested with such broad discretion that
they readily find a basis to decline to use unfamiliar procedures, particularly since they do not
preside at the pre-trial proceedings. Thirdly, the Law Commission itself may have discouraged
experimentation with the new procedures, suggesting that they would be used only in exceptional
circumstances where without them a child might be unable to testify at all, or only with considerable
harm and distress (Scottish LC, 1990 para. 4.7).
Evaluation of ‘Full Pigot’ Procedures
The following summarises the points made by law reform bodies and lawyers in jurisdictions which
use or are considering pre-trial videotaped testimony of child witnesses (Australian LRC, 1997,
paras. 4.41, 14.45–14.47; NSW Royal Commission, 1997, vol. V, paras. 15.64–15.83; National Center
for Prosecution of child Abuse, 1993, Vol. I, p.488, Figure VI–3) as well as by barristers with whom
we have discussed such procedures.
Considerations Favouring Pre-Trial Videotaped Testimony
Improving the quality of the evidence
• The prosecution may use an incomplete video interview as it considers appropriate.

• A pre-trial hearing enables recording of the child’s evidence while it is still relatively fresh,
which can benefit the defence as well as the prosecution.
• The jury’s perceptions of the child’s maturity may be more accurate than if they see an older
child under cross-examination whose appearance and cognitive development has altered.
• If counsel is in the room with the child, the technological barriers to establishing rapport with
the witness and maintaining eye contact are removed.
Facilitating pre-trial decisions by the prosecution and defence
• The prosecution’s case no longer rests upon predictions of how its key witness will fare in
cross-examination. If the child retracts the complaint or makes damaging admissions on cross-
examination, the prosecution has an early opportunity to withdraw or downgrade the charges,
with consequent savings to the judicial system and to legal aid.
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• If the prosecution withdraws the charges, the defendant is saved the public ignominy of being
tried as a child abuser, and any time in custody will be reduced.
• If the complainant stands up well under cross-examination, defence lawyers can advise their
client at an earlier stage to be realistic about the prospects of conviction.
Facilitating the scheduling and conduct of the trial
• Listing officers can schedule trials without regard to the availability of the videolink room, and
finding early fixed dates for child abuse prosecutions need no longer be accorded the same
priority.
• Any legal issues respecting the child’s testimony can be resolved by judicial rulings without
forcing the jury to wait during a voir dire (a hearing to rule on the admissibility of evidence)
at the trial.
• Trials may be shorter as adjournments to wait for child witnesses to arrive in court or to give
them breaks whilst testifying are no longer necessary.
Minimising ‘system abuse’ of child witnesses
• The child can begin testifying at a specific date and time without waiting for other cases to
conclude or for preliminary matters to be resolved.
• The child can put the events behind him and receive therapeutic help at an early stage
without concerns about possible contamination of testimony.
• Where the case must be tried again because the first jury was unable to reach a verdict, or a
re-trial is ordered on appeal for reasons unrelated to the child’s testimony, the child’s
videotaped evidence can be re-played, avoiding him having to go through the process again.
Considerations Against Pre-Trial Videotaped Testimony
Defence preparation
• Defence lawyers may not be ready to cross-examine the most important prosecution witness
until shortly before the trial. Full disclosure of the prosecution case is often delayed and
subject to dispute. In child abuse cases it may take longer for defence witnesses to come
forward and for the defendant to confront the details of the case so as to give proper
instructions. The objective of shortening the time the child is involved in the criminal justice
system may then be defeated.
Potential for multiple cross-examination
• The defence may need to cross-examine the child again at trial to put new points to the
witness, thereby exacerbating rather than minimising trauma to the child.
Damaging the child’s videotaped evidence
• The solemnity of a jury trial brings home to witnesses that their testimony has crucial
implications for the defendant. This effect may be lost if the child’s entire testimony is taken
in comfortable, sympathetic surroundings.
• Many counsel believe that video technology lacks the immediacy and persuasiveness of in-
court testimony, making it more difficult to assess a child’s credibility. Pre-trial taping may
exacerbate this problem, as the jury may find it difficult to ‘connect’ with proceedings
unfolding entirely on television.
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Cost
• Counsel may resist having to prepare for trial twice, and extra legal fees may be incurred.
• It may be necessary to invest in better video technology than is currently available in many
courts in order to overcome the technical problems identified in Chapter V.
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Chapter VII: Conclusion and Recommendations
CHAPTER VII: CONCLUSION AND

RECOMMENDATIONS
In reviewing our research evidence and advancing recommendations it is important to bear in mind
the following points. First, the present system for investigating and prosecuting adults who abuse
children has e volved over a period of time and has already been substantially modified in light of its
perceived deficiencies. The fact that it remains extremely difficult to secure convictions for offences
involving child abuse should not necessarily be taken to denote system failure.
Second, even if the ch i l d ’s interests are deemed to be paramount in the initial stages of an
investigation, the present system reflects the interplay of a number of competing principles: this
tension is inevitable, and the costs and benefits of bringing prosecutions for child abuse need to be
kept under review. By the standards of other criminal prosecutions, the efforts to protect vulnerable
child witnesses are indeed significant, and commendable. But it is important to understand that in a
criminal trial the witness’s interest is never paramount (Cretney et al., 1994); the prosecution witness
is there to help the Crown prove its case, and is routinely subject to hostile, even humiliating cross-
examination in an attempt to undermine his evidence. That is the nature of criminal trials (Brereton,
1997; Ellison, 1998).
Third, it can be ex t re m e ly difficult, given that the case usually turns on the credibility of the
complainant and the defendent, to predict the likelihood of conviction; indeed, many experienced
practitioners regard these prosecutions as inherently unpredictable in outcome.
Fourth, changing systems is notoriously difficult, and is not a matter simply of inventing new rules
and procedures, or even of requiring practitioners to undergo additional forms of training: it is
important also to address underlying beliefs so as to gain a sense of which reforms will ‘work’ and
which will prove inef fectual or counter-productive. Equally, it is fair to point out that practitioners
working in this field have already accommodated major changes in the means of eliciting and
delivering children’s evidence. Generally speaking these changes have been welcomed, and there
remains a willingness to contemplate fresh approaches.
We now offer a brief review of the main themes of our study, focussing upon those findings and
recommendations which we feel able to assert with confidence.
Specialism Within the Police
In our subject areas the allocation of cases to specialist child protection units did not always reflect
clearly articulated principles. Sometimes cases were dealt with by CID or uniform officers when we
would have expected that they be allocated to a CPU, and they received different treatment as a
result. It may involve some redistribution of police resources, but it seems to us highly desirable in
principle that, whenever a criminal investigation is deemed to be warranted, an allegation of child
abuse should be investigated by a specialist child protection unit.
Training and Monitoring
Two-thirds of the of ficers whose work we monitored were not CID-trained. The training which they
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received had concentrated on developing a close working relationship with Social Services to
facilitate the conduct of joint investigations under Working Together 1991. There was a particular
focus upon the video interviewing of children. CPU officers had little if any instruction in the basis
for the legal rules which they were required to follow, in particular the rules of evidence. Instead,
training was based on the interviewing skills segment of the Memorandum of Good Practice.
If we are to continue to expect police officers to conduct what is in effect an examination-in-chief,

then they need practical instruction in the legal principles which underlie the rules of evidence.
There is however a more fundamental question, namely whether it is reasonable to expect CPU
o ffi c e rs, in this aspect of their wo rk, to conduct themselves like barri s t e rs. At present the
Memorandum requires of ficers to do a barrister’s job with a fraction of barristers’ training and in
rather more difficult circumstances in the sense that they are required to frame questions on the basis
of very limited information. This problem could be alleviated were we to give the prosecuting
barrister greater latitude to ask further questions when the child gets to court (or to the videolink
suite).
Meanwhile the quality of these investigations might be improved if it were standard practice for a
senior officer to review the file in order to identify potential problems and suggest possible new lines
of enquiry. This should be done before the file is submitted to the CPS. It would also be valuable if
videotaped interviews were reviewed collectively by a CPU team in order to develop a common
understanding of best practice.
Interviewing Children
When preparing to interview children, officers tended not to make notes of the questions which
they would need to ask in order to make out an offence. They also felt constrained by prohibitions
upon asking leading questions, even where such questions would be acceptable in court .
Furthermore, as we have previously intimated, the interview was conducted right at the beginning of
an investigation, when officers typically knew little about the allegations. Any gaps in the evidence
were rarely filled through a second video interview with the child. It can be seen therefore that
officers are required to conduct an examination-in-chief, the rules of which they do not fully
understand, knowing that they are liable to be criticised in court and that at worst they may
jeopardise the whole case. In order to counteract this, steps need to be taken to break down the
barriers between judges, barristers and police officers, probably through joint seminars or other
forms of shared training.
We also suggest that the Memorandum of Good Practice requires revision. For example, it might
place greater emphasis on the need to plan the video interview, considering carefully the nature of
the evidence sought. There also needs to be more guidance on how to investigate alleged abuse by
persons known to the child, where the interviewer may have to deal with conflicting loyalties, fear of
repercussions for the family unit, or delayed complaint. It might be helpful if the Memorandum
suggested strategies for tactful probing of inconsistencies in the child’s account. The Memorandum
needs updating to provide a clear explanation of the change to the statutory test for testimonial
competence of a child, introduced in 1996. It might also be helpful if the Memorandum offered
guidance in appropriate ways of ensuring that the child understands the importance of telling the
truth, using examples where falsehoods would have significant implications for other people. Finally,
there is need for additional guidance on interviewing children who are thought to be victims of long-
term abuse, or who appear to be making incomplete disclosure. Several brief videotaped interviews
which followed a planned sequence might be more effective than resorting to written statements as a
means both of achieving disclosure and of demonstrating that the child’s testimony had been elicited
using appropriate techniques.
Planning the Investigation as a Whole
CPU officers in our study areas had not been trained in overall investigative strategies, nor in how to
82
interview suspects. There were occasions in the suspect interviews which we monitored when it
seemed to us that a promising line of questioning was not pursued. Some officers told us that they
thought they would benefit from further advice on how to interview suspected abusers. We also
observed cases in which key witnesses were not interviewed, whilst in others an opportunity to
gather forensic evidence was overlooked.
We suggest that the Memorandum of Good Practice be revised in order to give greater emphasis to
developing a strategic approach to the conduct of child abuse investigations, whilst remaining within
the inter-agency framework of Working Together. Where a criminal investigation appears to be
wa rranted, CPU offi c e rs should be encouraged to pursue possible sources of corro b o ra t i o n ,
including other potential witnesses and forensic evidence.
There is at present a lack of clear guidance as to the principles upon which the police determine
whether an alleged offence is worthy of prosecution. Characteristically, the police prefer to exercise
a very broad discretion in response to physical abuse, whereas almost any manifestation of child
sexual abuse is, in principle, deemed worthy of criminal sanction.
Reluctance to prosecute in cases of physical abuse or neglect sometimes reflects a police assessment
that the adults concerned are struggling to cope in difficult circumstances. It can also arise because
the police believe that the present law in respect of ‘reasonable parental chastisement’ is not
consistently applied by the courts. The police now attempt to assess whether the adults concerned
will be a ble to raise this defence, and this inevitably creates difficulties. Following the government’s
defeat in the European Court1 it has undertaken to review this area of the law. We think it would be
helpful if, across the board, the yardsticks by which the police and CPS determine whether alleged
child abusers should be prosecuted were to be reviewed and more clearly articulated.
Inter-agency Co-operation
Once a decision is made to prosecute, the arra n gements for inter-agency co-operation which
governed the investigation no longer operate. This can contribute to misunderstanding of the aims,
expectations and constraints which bear upon other agencies. Consideration should be given to the
development of protocols for the management of cases involving child witnesses. One possible
model is that recently implemented in Manchester. Those participating in the development of such
protocols might include local representatives of the police, Social Services, CPS, the Law Society, the
Bar Council, the Court Service, the Witness Service, the Judiciary and the Probation Service.
Developing Expertise Within the CPS
Many Crown prosecutors with responsibility for child abuse cases lack knowledge about how the
evidence is treated in the Crown Court. We appreciate that CPS staff cannot afford to spend
significant amounts of time merely observing; nonetheless it might improve CPS lawyers’ confidence
in their decision-making if they were occasionally able to observe the court’s treatment of the
evidence. Also, we believe that each CPS branch should contain specialist child abuse prosecutors
with a particular responsibility for, and interest in, this type of work. It is our understanding that the
CPS intends, once their lawyers are granted rights of audience in the Crown Court, that they should
have responsibility for conducting all PDHs. We believe that this would be a positive step since the
knowledge thus gained should assist their pre-court decision-making. Finally, we suggest that a
mechanism be established within CPS branches whereby each child abuse case would be reviewed
shortly after it had been concluded. The object would be to evaluate the decision to prosecute, and
the quality of the evidence, in light of what transpired in court.
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Reforming the Statutory Regime for Child Witnesses
The cur rent legislative provisions in the Criminal Justice Act 1988 ss.32 and 32A which govern the
admissibility of videotaped interviews and the availability of the videolink are complex, causing
confusion and uncertainty amongst investigators and CPS staff. Consideration should be given to
simplifying the statutory regime. For example, the current differentiation between physical and
sexual offences does not appear to be warranted. Consideration should be given to allowing the
Court to afford any witness under a stipulated age access to special procedures for his testimony,
regardless of the nature of the offence charged. Also, it might be helpful if statutory guidelines were
developed governing the use of special procedures for the testimony of all child witnesses. These
might be substituted for the ‘interests of justice’ cri t e rion in the Criminal Justice Act 1988
s.32A(3)(c).
Judicial Supervision/Fast-Tracking
Based on the evidence from the two study areas, both the system of plea and directions hearings and
‘fast-tracking’ (where this formally exists) appear to be largely ineffective. It took some 14 months,
on average, for these cases to come to trial. Of course child abuse cases tend to be complicated, but
equally, because they involve children, the costs of delay can be particularly severe. Unfortunately, as
we have described in the body of this report, powerful disincentives operate against bringing cases
to trial speedily.
One approach to this problem would be to place all cases involving child witnesses under the
supervision of a designated judge as soon as the case was transferred to the Crown Court. The judge
would have responsibility for setting a timetable for prosecution and defence disclosure, and for any
pre-trial applications. PDHs in child abuse cases might be scheduled on a separate list before the
supervising judge in order to facilitate consideration of all matters requiring pre-trial rulings.
Consideration might also be given to holding a pre-trial case management hearing before the trial
judge in order to ensure that all orders had been complied with and the case was ready for trial. For
such a system to be effective, barristers would have to be required, sometimes against their short-
term financial interest, to prepare for and attend all pre-trial hearings. At present PDHs are given low
priority by barristers, and this will continue unless the court dictates otherwise. The success of such
a system would depend very much on the resolve of the judge charged with implementing it, but we
think it worth trying as one means of promoting a change in the culture.
Delivering the Child’s Testimony
The statutory reforms to children’s evidence implemented in 1988, 1991 and 1994 received broad
support from the barristers involved in the cases which we monitored. Some considered that
further modifications to the conventional adversarial trial are warranted, believing that these could
improve the quality of children’s testimony to the benefit of both prosecution and defence. In the
main body of our report we canvassed two possible reforms which have been implemented in other
jurisdictions which employ the adversarial trial model: these concern the use of the videotaped
interview at trial, and the proposal to videotape the child’s entire testimony before trial.
It is our view that the present system could re a d i ly accommodate greater fl exibility in the
examination-in-chief of child witnesses. Accordingly we recommend that consideration be given to
repealing the Criminal Justice Act 1988, subsection 32A(5)(b) so as to give prosecuting counsel
greater latitude in determining the extent to which the videotaped interview will constitute the
child’s examination-in-chief. We do not consider that this would be a backward step; on the contrary,
it could make the the trial process less of an ordeal for the child. As it is the child has to face cross-
examination at trial, which is a far more arduous experience. We also believe that the mode by
which the child is to testify should be resolved well before the trial. This would facilitate appropriate
pre-trial preparation of the child and ensure that the requisite equipment is available when it is
required.
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It is, inevitably, more difficult to arrive at a firm judgement as to whether a version of ‘Full Pigot’,
under which the child’s presence would not be required at the formal trial, would yield the desired
benefits in terms of fairness to all parties and the expeditious departure of the child from the criminal
justice process. The Western Australian model for pre-trial videotaping of children’s testimony
received some support from those barristers with whom we discussed it; others doubted whether
the benefits would outweigh the disadvantages, and felt that conviction rates would fall. There was
agreement that a version of ‘Full Pigot’ cannot work without much more effective case management
than currently exists in our subject areas.
If we are to adopt a version of ‘Full Pigot’, much can be learned from other jurisdictions which have
implemented various models for receiving the pre-trial testimony of children. We suggest that any
legislation should stipulate clear statutory criteria to guide the exercise of judicial discretion in
determining whether the pre-trial procedures for receiving the child’s testimony should be invoked,
at the same time preserving sufficient flexibility to accommodate the needs of the particular child
witness. We also think it important that the trial judge herself preside at the pre-trial hearing. It
would probably be desirable to retain the flexibility which we have advocated for the current ‘half
Pigot’ model, thus permitting the prosecution to apply for leave to conduct a full or supplementary
examination-in-chief at the pre-trial hearing. Finally, to address concerns about possible multiple
cross-examinations of the child, we recommend that any legislation stipulate that the defence may
only obtain leave to cross-examine the child a second time upon establishing that evidence has been
discovered which was not discoverable with reasonable diligence at the time of the first pre-trial
cross-examination, and that further cross-examination is to be restricted to specific areas delineated
by the trial judge.
The experience of other common law jurisdictions with pre-trial cross-examination of child witnesses
suggests that the following practical considerations would also have to be addressed:
• the defence would need the time and the necessary material to prepare its case fully. At the
moment various factors can impede case preparation. In order for pre-trial hearings to work
as intended, each obstacle would have to be overcome
• the expedited preparation required of all participants would have resource implications.
Equally, any cost-benefit analysis should include evaluation of the implications of fewer cases
going to full jury trials as the result either of guilty pleas or of the withdrawal of the charges.
There might also be shorter trials.
Satisfying the Burden of Proof
Procedural reforms may alleviate some of the hardship suffered by children who report abuse,
particularly in limiting the time they have to wait before being called upon to give their evidence. If
the court appearance is rendered less traumatic, this may influence CPS lawyers’ interpretation of the
public interest criterion. That still leaves certain underlying assumptions built into the law in this
area which we believe are highly questionable. For example, there remains a view that a ‘genuine’
complainant would not delay in reporting an assault. This is based on a notion of stranger sexual
assault which has no re l evance to abuse by fa m i ly members or friends. Children in these
circumstances often have no-one to whom they feel they can safely complain; indeed that may be
why they were targeted for abuse in the first place.
This is part of the larger question of what evidence is logically probative of whether a witness (here,
a child) is worthy of belief. We need to give further thought to the question of what evidence
concerning the past behaviour of children (such as their having previously lied) should be admissible.
After all, most children do at some point tell lies. The question is: what do they lie about? Police
officers and CPS lawyers whom we interviewed believed that any evidence of past untruths might be
raised by the defence. We ourselves observed cases where the child’s evidence was challenged
because he had not complained in circumstances where it was frankly implausible that he should
have done so. In other words, it can seem as if the child witness is being required to clear some
quite unreasonable hurdles. We need to decide which matters (of all those which might be raised in
evidence) do in fact go to the heart of the child’s credibility. We believe that a more structured
85
approach to assessing the credibility of a child’s disclosure might assist both CPU officers and Crown
prosecutors. Consideration might be given to developing checklists of relevant factors, perhaps
adapting techniques for ‘statement validity analysis’ which are used in Canada and Germany. We also
think it worthwhile to consider admitting other kinds of evidence, for example, evidence from
experts on how child abuse victims typically behave in these circumstances.
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Appendix A: Methodology and sampling
APPENDIX A: METHODOLOGY AND SAMPLING
The Empirical Research
Sampling
Cases were selected at two points in the decision-making process: Police Child Protection Units
(CPU) and the Crown Prosecution Service (CPS). One sample was taken from the CPUs, and two
from the CPS: charge files and advice files. Our criteria for selection was that cases should have
involved an allegation of physical assault, ill-treatment or neglect, or sexual abuse, in which the
alleged victim was, at the time of the complaint to the police, aged 17 years or under.
Police Child Protection Units
We were granted access to three CPUs. Cases were selected where it appeared on the face of the
records maintained that an investigation had been conducted. We encountered difficulties in one
area where there were a great many referrals, approximately 150 per month. These referrals were
often merely for the purpose of sharing information between agencies and it was not possible to
determine why specific decisions had been made. We therefore excluded, from our sample, cases
where only preliminary enquiries had been made and the case had already been deflected from the
criminal justice system. We drew our cases from the investigation records of September and October
1996.
In CPU 1 14 cases were identified; in CPU 2, 15 cases; and in CPU 3, 12 cases. However, of these 41
cases, 11 were not reviewed: four files could not be located when requested for review; two
contained only adult complainants; two cases had been investigated by another police area; one was
taken out of the sample at the request of the police unit; one case was also picked up within the CPS
sample and was reviewed there; and two cases were reviewed as one because the complainants were
the same.
The Crown Prosecution Service
Charge files
All three CPS units maintain a Child Witness Prosecution Register. We selected all cases, 47 in total,
which were recorded in this register as live at 11 December 1996. In CPS Area 1 17 cases were
identified; in CPS Area 2, 19 cases; and in CPS Area 3, 11 cases. Thirteen files were not reviewed: five
cases were found to in volve only adult complainants; seven files could not be found when requested
for review; and one was found to be outside our criteria for selection.
Advice files
In CPS Area 1 we selected all advice files received from the 7 July 1997 until we had generated a total
of 20 cases. The advice file sample in CPS Area 2 was not easy to identify. We began by selecting
cases from the advice file register from 1 February 1997, but by 6 May 1997 had generated only three
cases. Further consultations with unit personnel resulted in a revised method of case generation
using the register in conjunction with the CPS record of advice given (by letter). This method
generated a total of 18 advice files. However, advice files remain within the unit for only a very short
period of time as once the advice has been given the files are quickly returned to the originating
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police station. Lack of time resulted in only four of these files being reviewed. In CPS Area 3, cases
were identified by contacting unit area personnel, who had agreed to identify all advice files received
by this unit between 1 February 1997 and 9 May 1997. A total of six advice files were generated, all
of which were reviewed. We were not convinced that we were informed of all advice files received,
but time did not permit a more thorough investigation of this problem.
Summary of sample
File Type Number
Police Files 30
Charge Files 34
Advice Files 30
Total 94
The method of case selection is self-evidently not random. However, we believe that the 94 cases
selected cover all the principal pathways involving police investigation and CPS decisions to
prosecute. Clearly, any assessments as to the frequency of particular evidential issues arising will
have to be tentative.
Methodology
• Each case in the various samples was subject to the following processes:
• paper file review, including observation of videos, where present
• attendance at Plea and Directions Hearings, as appropriate
• attendance at trial where a not guilty plea had been entered
• case specific interviews with police officers, Crown Prosecutors and barristers.
We did not attend trials or interview barristers in those cases which made up our advice file sample.
Court Attendance
We attended plea and directions hearings where this was considered helpful. The decision was often
made after discussion with CPS personnel who were able to indicate whether any arguments on
admissibility of evidence would be heard. Attendance was not deemed necessary where the CPS
anticipated a guilty plea. We attended 15 trials and one Newton Hearing. At all court hearings we
took extensive notes of the procedures and evidence as it emerged.
Interviews
We conducted semi-structured interviews with police officers in respect of 61 cases, with Crown
prosecutors in respect of 34 cases, and with barristers in 28 cases. The interviews were tape
recorded and selectively transcribed. Whilst police officers and barristers generally had good recall
of specific cases, Crown prosecutors had greater difficulty in recalling cases – hardly surprising given
the volume of throughput.
Data Analysis
The cases were analysed employing SPSS. We regard these data as supplementary to what is
essentially a qualitative study. It was not appropriate to attempt more sophisticated statistical
analysis.
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Appendix A: Methodology and sampling
Confidentiality
The cases making up our sample contained extremely sensitive material. We gave an undertaking
that all information obtained would be anonymised. As well as provided pseudonyms, we have
sometimes changed identifying details.
Visits to Other Areas
We made ‘flying visits’ to four CPS centres in June 1998. We were able to interview lawyers and
caseworkers about the practice in these areas. We were also able to examine their child abuse
registers, where available.
The Lord Chancellor’s Department nominated four judges with whom we were invited to discuss
issues raised in the research. The judges (with one exception) sat in courts which corresponded to
the CPS centres visited during June 1998. The purpose of these discussions was to enable the
research team to gain the judicial perspective on the issues involved in prosecuting child abuse.
Focus Groups
Three focus group discussions were arranged: with senior police officers, Crown Prosecutors and
barristers. In each case a group-specific agenda was devised and distributed and the discussions
were guided by a chairperson. These sessions were intended to provide the research team with an
additional opportunity to explore issues which the case-specific interviews had not covered in depth,
for example issues relating to training and organisational structure. These discussions were tape
recorded and transcribed.
Other Sources of Information
We gathered further information in the course of informal discussions with:
• Helen Reeves, National Director of Victim Support

• Barbara Joel-Esam, a lawyer with the Public Policy Division of the NSPCC
• the Child Witness Support Group of the NSPCC
• individual child witness support workers in our subject areas.
We were also given the opportunity to observe police training sessions in one of our subject areas,
and we discussed with police trainers their approaches to interviewing persons suspected of child
abuse. We also met Professor Graham Davies to discuss his research into police training in the
interviewing of child witnesses, conducted for the Home Office.
The Comparative Study of Law Reform in Other Jurisdictions
As well as conducting an empirical investigation, and reviewing UK case law and statutes, we sought
information on how law reform initiatives in other selected jurisdictions had been implemented and
were operating in practice.
Canada
We spent three days with the child protection team of the City of Edmonton Police Force in
Edmonton, Alberta, interviewing senior and operational officers, reviewing paper files, observing
videotaped interviews with children, and attending liaison meetings by child protection officers with
Victim Support groups. We also collected substantial written materials regarding inter-agency
investigations, interviewing protocols, and child abuse investigator training materials from several
Canadian police forces and police training colleges. Finally, we interviewed Crown bar risters from
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Alberta Justice in Canada who have extensive trial and appellate experience in prosecuting criminal
child abuse cases.
Elsewhere in the United Kingdom
We received information from:
• a representative of The Scottish Office

• Joyce Plotnikoff and Richard Woolfson
• a senior prosecutor in Belfast, Northern Ireland.
United States
• a representative of The National Center For Prosecution of Child Abuse, operating under the
aegis of the American Prosecutors Research Institute and the National District Attorneys
Association in Virginia
• Charles Phipps, a lawyer with the Children’s Project, University of South Carolina
• Professor Alan Tomkins, Assistant Professor of Law & Psychology, University of Nebraska-
Lincoln, and editor of the international journal, Behavioural Sciences & the Law
• Dr Victoria Weisz, Research Assistant Professor of Child Psychology with the Centre on
Children, Families And the Law, University of Nebraska-Lincoln.
Australia
• the Honourable Justice Pidgeon, Chairman of the Closed-Circuit Television Guidelines

Committee, Supreme Court of Western Australia
• Celia O’Grady, of the Ministry of Justice, Government of Western Australia
• Gillian Calvert, Director of the Office of Children And Young People, the Cabinet Office,
Government of New South Wales
• a representative of The Australian Law Reform Commission.
New Zealand
• Fiona Leonard, of the Parliamentary Counsel Office, Wellington

• Elisabeth McDonald, of the New Zealand Law Commission and the Faculty of Law, University
of Victoria, Wellington.
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Appendix B: Investigation and Prosecution Pathways (Crown Court Cases)
APPENDIX B: INVESTIGATION AND PROSECUTION

PATHWAYS (CROWN COURT CASES)
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Appendix C: Case Vignettes
APPENDIX C: CASE VIGNETTES
We have chosen these cases to reflect the diversity of the issues in the cases we studied. In these
vignettes the proportion of cases which went to trial is higher than in our sample as a whole.
Cases Where no Further Action was Taken
Case 4A
C. was 15-years-old. She lived with her mother, stepfather and brother. One night C. telephoned the
police alleging she had been assaulted by her stepfather. The police officer who attended the scene
noticed scratch marks on C.’s neck. Shortly after this incident C. provided the police with a written
statement. She alleged that she, together with her mother, stepfather and brother, had been in a local
pub. Her mother and stepfather were drunk. When they returned home a disagreement arose. This
was initially between the mother and stepfather, and subsequently between C. and the stepfather. C.
said that during the disagreement the stepfather had placed his hands round her throat in an attempt
to strangle her. She fought and swore at him in an effort to stop him. She was medically examined
and the doctor concluded that the marks on C.’s neck were consistent with strangulation marks. C.
had had previous contact with both the police and Social Services. She had alleged that her natural
father had sexually abused her – he had not been prosecuted. She had also previously asked to be
accommodated away from home because her mother was hitting her – she returned a few months
later. Finally she had disclosed that she had been sexually abused by a neighbour – he was later
convicted.
The stepfather was interviewed by the police. He denied the assault, claiming that C. whilst at a
local children’s home had marked her neck and accused a boy of trying to strangle her. The police
could find no record of this at the children’s home. C.’s mother provided the police with a statement
– she did not support her daughter’s account and denied seeing any injuries to C.’s neck. The file
was sent to the CPS for pre-charge advice. The police commented that whilst they thought there was
enough evidence to sustain a charge, they doubted whether there would be a successful prosecution.
The CPS recommended no further action. Their reasons appeared to be threefold: they thought the
marks on C.’s neck could have arisen in a number of ways; they did not consider C. would make a
reliable witness; and finally they thought that the fact that there was some suggestion of bad feeling
between C. and her stepfather weakened the case.
Case 5A
C. was an eight-year-old girl who had stayed for three months, along with her parents and young
siblings, at her grandparents’ house. During this time C. slept on a mattress on the floor of her
uncle’s bedroom. Approximately three months after the family moved out of the grandparents’ home
C. was video interviewed. She alleged that her father had indecently touched her. The father later
made admissions and was convicted of indecent assault. Approximately six months after this first
video interview the police were informed that C. had made allegations of indecent assault against her
uncle. She was again video interviewed. She disclosed that her uncle had indecently touched her
whilst she had been sleeping in his room. The uncle was interviewed by the police. He denied
indecently touching C., although he did say that one night he had invited C. into his bed because she
was frightened by a thunderstorm. He said he had woken during the night and accidentally touched
her leg. He said he was worried about this. The file was submitted to the CPS for pre-charge advice.
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The police recommended no further action because of the lack of corroborative evidence. The CPS
agreed with this recommendation, commenting that the case was weak because there was no
support for C.’s account; she had failed to complain about her uncle when given the opportunity to
do so, and finally that C., during her video interview, had expressed some dislike of her uncle.
Case 14A
Social Services contacted the police because C., aged five, had bruising to his face and buttocks. C.
explained that he had been kicked by a fellow pupil at school. He was medically examined and the
doctor concluded that the injury was more consistent with a slap than a kick, although he could not
confirm whether or not the injury was accidental. A few days later C. was seen with fresh bruising,
together with scratch marks on his penis. C. explained that he had fallen downstairs. He was
medically examined again. The doctor was of the opinion that the injuries were non-accidental and
could have been caused by an adult hand. An attempt was made to video interview C. but the
interviewers were unable to obtain any information from him. C. was extremely disruptive during
the interview – throwing furniture and drawing on the walls.
A case conference was convened some time later to discuss C. and his three-year-old brother. Social
Services had been working with the family for two years. Concerns were expressed about the two
children; they were often dirty, wore dirty or wet clothes, smelt of urine and had matted hair. They
were also under-stimulated, often being left in bed for long periods, sometimes without food. Their
bedroom was dirty and had stale food and excrement on the floor and walls. A decision was made to
place the children on the at risk register. The children were to remain with their parents but would
be closely monitored for a period of six weeks, following which the situation would be reviewed.
No-one was interviewed in relation to this case, other than the attempt to interview C. There were
no witness statements, nor photographs recording the state of the child’s bedroom. The police
decided to take no further action. CPS advice was not sought.
Case 24B
C. was 13-years-old. He visited his G.P., refusing to go home because, he said, his brothers were
abusing him. The police were called and he was subsequently video interviewed. He said that the
abuse had started when he was about seven-years-old. He said that on each occasion his brothers
would grab his penis through his clothing. When asked to demonstrated how his brothers touched
him he used a flat palm. He said that this happened about every month. The interviewing officer
thought that C. was making up the incidents. He was puzzled by the fact that C. found it difficult to
describe things that were relatively simple, i.e. what led up to the abuse, how his brother had come
into the bedroom, and what was said before the alleged assaults occurred. He said that this was not a
typical response from an abused child who usually preferred to talk about incidents peripheral to the
abuse, but avoided talking about the details of the abuse itself. The officer in the case felt that there
were “other issues going on in the family”. He concluded that C. had achieved what he wanted by
making the complaint as he was now living away from home.
Case 28B
C., who was three-years-old, was referred to Social Services by her maternal grandmother. She had a
triangular burn to her upper arm. The grandmother said that C. had told her that her mother had
burnt her. C. was the youngest of four daughters. Her siblings were aged six, eight and ten. The
parents had separated and the girls lived with their mother. There was a great deal of animosity,
between the parents and between the maternal grandmother and the mother. The father wanted the
children to live with him and was awaiting the findings of this investigation before beginning
proceedings. The officer in the case said that she could not help but be influenced by the familial
hostility in wondering whether there was really a case to answer. All four children were video
interviewed. The ten-year-old and the six-year-old said that they were not there at the time and but
said they thought that C. was climbing on the work surface when she slipped and fell onto the iron.
The eight-year-old said that she was in the kitchen at the time and saw her sister fall in this way. C.
was interviewed but would only give her name. When the child was medically examined the doctor
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found, in addition to the healing burn, a very old burn mark just below her waist line. The doctor
was concerned that C. had been burnt on two occasions and on neither had there been a clear
explanation of what had happened. It was decided at the strategy meeting that the interviews “could
not confirm or corroborate neglect”. No further action was taken by the police.
Case 74A
C. was a five-year-old boy who lived with his mother and younger sibling. The child visited his father,
and following a conversation between the child and the father Social Services were called. The
father was concerned that his son may have been abused by a person who had occasional care of
him. Social Services in turn contacted the police and the child was video interviewed. C. said that
the babysitter had made him wear a nappy as punishment for wetting himself. When the nappy was
removed he had been made to bite on a belt whilst the man smacked his bottom with a plimsoll.
Cream was rubbed on his bare bottom, allegedly to relieve the pain. The child had earlier told his
father that the babysitter had kissed his bottom – he did not repeat this during interview. The child
seemed shy and embarrassed during his video interview and had acute difficulty in trying to recall
exactly when the events which he described had taken place. Following the video interview the
child was taken home. At about this time he made a further disclosure to a social worker. He said
that the babysitter had also washed his genitals, pulling his foreskin back as he did so. This
information was relayed to the police.
The ba bysitter was interviewed and denied any indecency. He admitted smacking the little boy on
one occasion, but not in the way the child described. He also denied washing the child’s genitals.
The babysitter was a Schedule I offender who had been convicted over ten years ago of an offence of
indecency with a ten-year-old child, he having inserted a finger into the child’s anus. The police
requested pre-charge advice from the CPS. The officer in the case recommended no further action
because the babysitter was denying the offence and he thought, without an admission, there was
insufficient evidence to sustain a prosecution. The CPS agreed. The fact that the child was vague
about dates and the lack of corroborative evidence was considered problematic, as was his age.
Cases Where the Suspect Pleaded Guilty
Case 33A
A. aged 16, and B. aged 12 lived with their mother and the defendant. The defendant was the natural
father of B. and the stepfather of A. A. told her mother that the defendant had sexually abused her.
The police were contacted. Both A. and B. were video interviewed. A. disclosed that her stepfather
had been sexually abusing her since she was eight-years-old. This abuse included masturbation, oral
sex and digital penetration. A. said that the last time it happened was a couple of months ago. She
disclosed long-term abuse and as such it was difficult to establish within the confines of an hour-long
video the chronology of the abuse. Dates and times were vague.
B. was also video interviewed, almost directly after the completion of A.’s video. B. disclosed that her
father had been sexually abusing her since she was eight-year-old. She described a number of
incidents, including masturbation, oral sex and sexual intercourse. B. said that the last time it had
occurred was the previous Sunday when she had been induced to masturbate the defendant. Again,
as B. was disclosing long-term abuse it was difficult within the confines of a video interview (in this
case an hour-and-a-half) to establish the chronology of the abuse. Dates and times were again
difficult to pinpoint.
The defendant was arrested. Prior to his interview he was shown the two video interviews. He
admitted all the allegations with the exception of the sexual intercourse. The defendant was charged
with one count of incest with B. and 12 counts of indecent assault: seven in relation to B. and five to
A.. The case was transferred to the Crown Court and the prosecution accepted ten guilty pleas
relating to the indecent assault counts on the indictment. The defendant was sentenced to eight
years imprisonment.
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Case 52B
C. was 21-months-old. He had sustained brain damage from a blow to the head. He had been looked
after by several people, including his parents and the person who was later charged with injuring
him. All those looking after him were heroin addicts. The person charged said that he had taken the
baby to the local park where he had sustained injuries after falling from a swing and hitting his head
on the surface below. The only evidence that could be gathered was circumstantial. In house to
house inquiries officers gathered information from neighbours who were prepared to go to court and
say that they had heard a child’s screams from the house on the day the baby was taken into hospital
and heard the defendant shouting “shut up, shut up, you horrible little bastard”. A neighbour who
lived by the park and whose dog barked if someone entered said she had been able to see the park all
day and had not seen anyone enter it. There were also witnesses to earlier assaults on the child.
Three teenagers, including the defendant’s girlfriend, painted a picture of systematic cruelty to the
child. They said that the defendant had choked the baby, pricked him with pins and pulled his hair
out in clumps.
The defendant was charged with three offences: intentionally or recklessly inflicting G.B.H.; causing
G.B.H. with intent; and cruelty contra ry to Section 1 Children and Young Pe rs o n ’s Act 1933.
However the CPS were persuaded by the barrister at court to drop all but the cruelty charge. There
had already been previous bleeding in the child’s head and it was impossible to prove the level of
force which had been used on the day he lapsed into unconsciousness. A plea of guilty to cruelty
was accepted. There were also concerns that the witnesses to the cruelty would withdraw their
statements and the defendant’s ex-girlfriend might not turn up at court to testify. The defendant was
sentenced to 30 months’ imprisonment for cruelty and for a burglary.
Case 55B
C. was 15-years-old. She disclosed repeated sexual abuse by her father from the age of eight to 11.
She described numerous incidents of indecent assault, culminating in violent rape. She was no
longer living with her father.
C. was not video interviewed, but instead four written statements were taken. The interviewing
officer felt that because the abuse had gone on for a long period it would not have been possible to
obtain the necessary detail without a video interview of several hours. The interviewing officer felt
that C.’s interview had to be in a form which provided readers with ‘easy access’.
The police were concerned to counteract a defence argument that C. should have disclosed the
abuse earlier. They took a statement from C. to the effect that she had told her brother about the
first incident just after it occurred when she was eight. She was berated by her father for her
disclosure, in the presence of her mother. She then concluded that she should not tell anyone about
what had happened to her. They also took a statement from her psychiatrist, explaining why young
people might not disclose abuse, or might make disclosures years later. C.’s mother statement
corroborated her story to some extent. C. had a history of disruption at school. She had made three
suicide attempts. She had been hospitalised for drug and alcohol misuse. She had cut herself on a
number of occasions with razors.
Her father initially denied that the assaults had taken place, although both officers in the case felt that
he had made some important admissions. He pleaded guilty in court to two specimen counts of
indecent assault, but denied the rape, but only after he had been convicted of manslaughter in an
unrelated incident. The defendant was sentenced to four-and-a-half years’ imprisonment.
Cases Which Proceeded to Trial
Case 26B
The defendant, a newly-qualified teacher, was employed as a supply teacher for a six-month period in
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a junior school. He was suspended after allegations that he had indecently assaulted three boys aged
eight and nine in one of his classes, after a father overheard a casual conversation between two of
them. When video interviewed, the boys claimed that when D. called a boy to stand beside the
teacher’s desk to read aloud to him, D. would place his hand on the child’s buttocks. D. claimed that
he merely put his arm around their waists to encourage them while they were reading. He did not
touch any female pupils because he had been cautioned during training not to do so.
The CPS advised the police that the case should not be prosecuted. The CPS came under
considerable pressure by the police and a multi-agency child protection strategy group to change its
position. The CPS maintained its opinion that there was not a realistic prospect of conviction
because it was unlikely that the Crown could prove beyond reasonable doubt that a “naive” teacher
intended indecency rather than innocent encouragement of his pupils. The CPS was prepared to
reconsider if other children made disclosures. In the next few weeks two other children made
apparently spontaneous complaints alleging that D. touched or attempted to touch their genital area.
The County Council wrote to all parents of pupils in D.’s classes inviting them to advise of any
concerns about the welfare of their children. The CPS agreed to proceed. Four months later another
boy, after reading an account of the charges against D., made a complaint to his mother. This boy
had been interviewed in the second phase of the investigation, but had made no disclosure. With
one exception, all of the offences were alleged to have taken place during reading class, with other
children present. Two teaching assistants were also frequently present, and teachers frequently
passed from one classroom to the next through a swing door. None of the teaching staff had seen
anything untoward in D.’s conduct toward the pupils.
The CPS dropped charges relating to one boy in the first group of complainants after the trial judge
ruled in a PDH that his video interview was so tainted by leading questions as to render it completely
unreliable. The child was easily distracted and his testimony was often incomprehensible and
inaudible. The defence also unsuccessfully contested the testimonial competence of another boy on
the ground that he was incapable of giving a coherent account. The trial judge at the PDH expressed
doubt as to whether the complaints of “bottom touching” by the first three complainants constituted
acts of indecency. The CPS’ strategy was that the acts described by the three initial complainants
assumed the character of indecent intent by association with the similar fact evidence of the three
later, more serious complaints. The defence strategy focused on the weakness of the case relating to
the first three boys as tainting the whole of the prosecution, and that the ch ro n o l o gy of the
disclosures revealed a campaign against an inexperienced teacher by the parents.
After a two week trial, the jury quickly returned verdicts of not guilty on all counts.
Case 27B
Two volunteer carers at a church summer camp were charged with indecent assault and incitement
to commit an act of gross indecency. All of the approximately 38 children who attended the camp
were selected by social workers as having deprived backgrounds. Neither defendant had any prior
convictions; one had an extensive history of involvement with the summer camp and the Boys’
Brigade. The three complainants on the indictment were selected by police from a group of six boys
between the ages of eight and ten, who slept in a dormitory supervised by the defendants. The
charges related to ‘games’ allegedly instigated by the defendants which the boys in that dormitory
played at night while preparing for bed. The games allegedly included carers slapping boys on their
buttocks, a competition for the most soiled underpants, masturbation, and persuading the boys to
insert fingers up their own rectums. Children from both dormitories alleged that the defendants had
paid the winners of these games, and in particular paid the child who was willing to receive the
hardest blows in the slapping game. The allegations of the boys in that dormitory were corroborated
in respect of the slapping game by an adult volunteer responsible for the adjoining dormitory, and by
two older boys in that dormitory. The strength of the prosecution case also lay in the independent
and spontaneous disclosures of two of the boys (neither of whom had played the games) upon
returning from the camp, the minimal possibility of conspiracy or contamination, given that very few
of the ch i l d ren had contact with one another befo re or after the camp, and the consistent
descriptions many of them gave of the slapping game.
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A considerable number of children were interviewed on video by police officers in two CPUs.
Charges were eventually laid respecting three children because their testimony was corroborated by
other children, and so regarded as the strongest. Prosecuting counsel decided to eliminate one
complainant from the indictment, as this boy denied participating in the games.
Most of the video interviews demonstrated excellent technique, given that many of the children had
behavioural problems or had cognitive development below that of their peers. Three of the children
made no or limited disclosure on their first interview. Two were interviewed again after they made
disclosure to their mothers following the first interview. Two interviews of one boy were poorly
handled; in the first interview, he repeatedly told the interviewers that he did not wish to tell them
anything, in the face of persistent questioning, and in the second interview the interviewer used
numerous leading questions about the games in order to induce disclosure. The child responded to
her sympathetic manner and leading questions with ever more implausible stories. The defence
solicitor advocate chose not to object to the admissibility of any of the interviews at trial, considering
that the way the allegations were elicited, and the sequence of disclosure, assisted the defence case.
The defence painted a picture of two altruistic young men of unblemished character, dedicated to
helping deprived children, who had to contend with children who were damaged by their previous
life experiences, and many of whom had behavioural problems. They claimed that the children had
been prematurely exposed to sexual matters, arguing that the children themselves had devised the
games. It was said that neither of the defendants participated, but rather vainly tried to keep the
children under control. Eight children testified via videolink. The prosecution’s weakest witnesses
were the two complainants remaining on the indictment. Both conceded under firm but fair cross-
examination that they have repeatedly lied in their video interviews, but stoutly maintained their
principal allegations that the defendants had participated in the games and paid the boys to become
involved. Both defendants testified that they had not participated in the games. The defence called
numerous character witnesses supporting the defendants. After nine days of testimony and two days
of deliberations, the jury acquitted both defendants of all charges.
Case 29B
C.’s natural father died when she was four. When she was five her mother married the defendant. C.
had an unhappy adolescence and her mother sought the assistance of Social Services to deal with her
behavioural problems at home and at school. C. received psychiatric treatment, and was hospitalised
for a suspected drug overdose. When C. was 16 she disclosed to a friend that she had been sexually
abused by her stepfather from the age of eight. Her friend urged her to go to the police, but no
complaint was made until C. told her older sister eight months later. Her mother immediately
telephoned Social Services and a police investigation was initiated. C. made a written statement
rather than a videotaped interv i ew, although tech n i c a l ly a video interv i ew could have been
conducted. She described abuse by her stepfather, starting with touching and kissing of her vagina at
age five when she was in the bath and escalating to rape when she was 13. C. alleged that D. often
punched her, leaving bruises. C. was very detailed in describing the circumstances of the alleged
assaults, but she was imprecise about dates. C.’s allegations were corroborated to some extent by a
friend, her sister, and by two teachers who confirmed frequently seeing C. with bruises on her face
and arms. Her mother confirmed that she had seen bruises on four occasions, but stated that at least
once C. had drawn the bruises on her face with a pen. Medical examination disclosed that C. had a
damaged hymen. D. was strongly supported by C.’s mother and by her older sister. They claimed
that C. was a habitual liar and attention-seeker who was jealous of her siblings. D. claimed that C.
was maliciously accusing him in an attempt to break up his marriage, and that her bruises were self-
inflicted or faked. The CPS advised the police to charge D. with specimen counts of indecent assault,
attempted rape and rape, noting that the issue of credibility was one for the jury to determine. There
were at least three PDH’s, the primary issue being disclosure of C.’s medical and Social Services
records. Eventually C. consented to disclosure of at least the medical records.
At trial the defence applied for leave to cross-examine C. on her prior sexual history. The defence
wished to cross-examine her on three issues: that she had lied to friends that she had had an
abortion; that she had claimed to have had intercourse with two other men prior to her medical
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examination by the police’s medical expert; and that she had had a recent relationship with a
t e e n age r, contradicting her statement that she had difficulty with such relationships. The
prosecution conceded that the questions were relevant. C. testified without using the videolink or a
screen. Her testimony-in-chief was detailed, closely following her written statement. In cross-
examination, the defence pursued the themes that C. was a chronic liar and attention-seeker, and was
aggressive, disruptive and challenged authority. The defence emphasised the many occasions when
she had an opportunity to disclose the abuse to teachers, social workers and psychiatrists. C.
explained that she was afraid and thought she would not be believed, but eventually disclosed the
abuse because she was fearful for her younger siblings. She denied telling lies and maintained her
composure for most of the cross-examination. Following her cross-examination, the defence applied
for a directed acquittal, claiming to have noticed ex p ressions of disbelief from juro rs. The
prosecution initially argued that corroborative evidence from teachers and a medical expert would
assist the jury in deciding on C.’s credibility, but later conceded that if the judge believed her
evidence lacked credibility, then the prosecution had no further evidence to add which could
eradicate that view. The Court noted that the complainant had been inconsistent and had admitted
u n t ruths unconnected with sexual matters and unconnected with D. She had nu m e ro u s
opportunities to make a complaint to physicians and social workers, while the rape was alleged to
have occur red only after D. knew that Social Services and psychiatrists were involved with C. The
Judge directed the jury to acquit.
Case 37A
The defendant, a neighbour aged about 36, called at C.’s fa m i ly ’s house for a pre - a rra n ge d
appointment with C.’s mother, who was not at home. D. forced his way into the house. D. pinned
C., aged 13, up against the kitchen wall and made several attempts to kiss her on the lips. He fondled
her breasts beneath her clothing, then gave her a love bite on her right breast which left a visible
mark. C. attempted to fight him off. He then left the house. D. was charged with indecent assault.
C. disclosed a prior incident, when D. kissed her in his car when he was driving her to school, which
made her reluctant to let him into the house. D. admitted both incidents, but the charges related
only to the assault in the kitchen. The case proceeded to a Newton hearing, because D. denied
causing the love bite, forcing entry into the house, or using any force. He alleged that C. willingly
kissed him, but admitted that he had acted wrongly in touching her breasts. Because the police had
not referred C. for medical examination, prosecution and defence medical experts had to base their
opinions on inferences from the victim’s descriptions of the way the assault was committed, and her
injuries, and observations of the bruise on her breast by her mother and a WPC. There was
conflicting medical opinion as to whether D. could have lifted her up and held her against the wall,
supporting her whole weight by one hand against her neck and upper body. The Court concluded
that D. had forced his way into the house, attacked C. and was responsible for a love bite on her
breast. The Judge expressed doubt as to whether C. was pinned against the wall in the manner she
described. He sentenced D., previously of good character, to ten months’ imprisonment.
Case 38A
C., aged 16, lived in a children’s home. She testified that one evening after she had been visiting her
family, her aunt’s partner, the defendant, offered her a lift home. En route they stopped to walk D.’s
dogs. D. made remarks of a sexual nature to her, began to fondle her breasts over her clothing, then
pulled down her jeans and knickers and his own lower clothing, and attempted to rape her. He
desisted when C. pushed him away, and apologised. He then drove her back to the children’s home.
C. did not immediately report the incident to the staff. However, when a staff member went to her
room to check on her about one hour later, she found C. curled up on her bed shaking and sobbing.
She disclosed the incident, and the police were called. At trial, the defence attacked her credibility
on the basis of this ‘delayed complaint’. D. alleged consent, and claimed that he withdrew from her
when he felt pangs of guilt. An unusual feature of the case was that D. claimed that he had achieved
full penetration, whereas C. stated that he was unsuccessful in penetrating her at all. C. told a WPC
on the night of the incident that she was menstruating and wearing a tampon, which was confirmed
in the medical examination the following day, three hours before the video interview. Although the
WPC recorded this information in her notes, the CID interviewer forgot to ask about this. A
99
summary of the WPC’s statement, read to the jury, omitted any reference to menstruation as it was
hearsay. At trial, prosecuting counsel was given leave to correct this omission by a supplementary
question; C. confirmed that she was wearing a tampon at the time of the incident. Defence counsel
in addressing the jury pointed out that she never mentioned the tampon in the video “even though
she was given every opportunity”, and the fact that the next day the medical examiner removed it
did not mean that she was wearing a tampon on the day of the incident. This contention was not put
to C. in cross-examination; defence counsel simply asked her if she did not tell D. she was having a
period.
This case raised the issue of the propriety of an application to cross-examine a complainant on
previous complaints of sexual abuse. The prosecution disclosed to the defence a schedule of nine
previous complaints of sexual abuse respecting C. In five cases the complaints were substantiated;
four resulted in convictions and in another D., having confessed, committed suicide. In two cases
the outcome was not known by the police. In only one case, when C. was 14-years-old, did the CPS
decide not to proceed. The remaining complaint, of indecent assault by her grandfather when she
was seven, was withdrawn on the initiative of her mother. The defence applied to cross-examine C.
only respecting the allegation against her grandfather, arguing that since D. referred obliquely in his
interview to prior complaints, claiming that this made him wary of contact with C., the jury required
this context. The prosecution submitted that if one complaint was to be admitted in evidence, then
all nine should be put before the jury, in fairness to C. If the complaints were admitted in evidence,
then the prosecution’s theory would change to submit that D. knew that she was the victim of prior
abuse and exploited her vulnerability. The issue was resolved by the Court directing that the
references in D.’s interview be deleted. The police also overlooked another opportunity to test the
credibility of D. and C. C. testified that he told her that her former boyfriend had told him that
afternoon about having sex with C; D. told the police that he had not seen this man for ten years.
The police did not interview this potential witness to seek corroboration of C.’s or D.’s version. The
technical quality of the videotaped interview was very poor. The videotape was very difficult to hear
at trial. The videolink was also unsatisfactory, as part of C.’s face was often invisible. The courtroom
monitors kept breaking down. The jury acquitted D.
Case 44B
The defendant was stepfather to C., a boy aged 12. After D.’s relationship with C.’s mother ended, C.,
together with his younger brother who was D.’s son, continued to visit him. During a visit, two
incidents occurred. C. alleged that D. indecently assaulted him in the lavatory. Later that day D. told
C. to go upstairs to the bedroom, undress and lie face down on the bed. C. testified that his
stepfather lay on his back and inserted his penis into his anus, causing pain. The boy then pushed
him off. The defendant denied the first incident, claimed that he was checking the boy’s anus
because he kept scratching it. He admitted that he ejaculated beside C. but denied any attempt at
penetration. The police were contacted the following day, after C. told a friend, and then his mother
what had happened. D. was charged with one count of indecency with a child (respecting the
lavatory incident) and one count of attempted buggery (respecting the bedroom incident).
At the first trial, about ten months later, the defendant was acquitted on the indecency charge, but
the jury could not reach a verdict on the attempted buggery charge. A re-trial on the attempted
buggery charge was scheduled for December 1996, but was set over due to the illness of defence
counsel, and re-scheduled for March 1997. The child and prosecution witnesses had already waited
45 minutes when the trial judge announced that three days were insufficient to try the case, and
adjourned the case again until June 1997, some two years after the alleged incident. Problems in
scheduling the prosecution and defence medical witnesses also caused delays in listing the re-trial.
The judge who eventually presided at the re-trial stated that “the system has catastrophically failed
both D. and the child witness”. He expressed concern that the Court listing officer had listed
another matter before him at the same time as the trial, and had scheduled another matter in another
courtroom involving defence counsel, combining to delay start of the trial.
The CPS had briefed three different barristers on the case, and the counsel appearing on the eventual
re - t rial had been bri e fed only on the Fri d ay befo re the Monday when the case commenced.
100
Consequently, several difficult matters had to be resolved before the child could be called to testify.
Counsel a greed that the videotaped interview could not be used because of its poor sound quality,
and because the boy had discussed the incident in respect of which D. had already been acquitted,
and the tape had not been edited. This decision required the prosecutor and trial judge to caution
the child not to refer to this incident or related information in his oral testimony (he was generally
able to abide by this instruction). This also meant that the child was not permitted to review the
videotape to refresh his memory of events which had occurred almost two years earlier; instead, he
was permitted to read a summary of his evidence prepared by the police. The child gave his
examination-in-chief and cross-examination via the videolink. While C. was an impressive witness,
the delay had affected his memor y. He was candid in cl a rifying thereafter what he could
independently recollect and what he remembered only from his statement. Defence counsel
acknowledged the problems caused by delay for the child, and reiterated to him that he should not
be ashamed because he could not remember. When challenged about the act of buggery, the child
insisted
“I remember that because it’s what happened and it’s pretty hard to forget. I could feel it,
what happened.”
There was conflicting medical evidence as to whether there were physical signs of abuse. The jury
were assisted in evaluating the credibility of the parties by significant discrepancies between what D.
said to the police and his testimony. The jury returned a verdict of guilty on the attempted buggery
charge.
Case 46B
This case exemplifies the evidential difficulties which can arise through delay. The prosecution’s
case was salvaged by the unusual circumstance that similar allegations were made independently
against D. by two sets of children who did not know one another. D., a man of advanced years with a
criminal record for rape and indecent assault, first came to the attention of the CPU when two girls
aged eight and nine complained in December 1993 that they had been indecently assaulted by D.
whilst entrusted to his care by the parents of one of the girls. When video interviewed, one of the
girls made no disclosure; the other alleged abusive assaults. The matter was not pursued by the
police until March 1994, when two sisters aged eight and eleven made very similar allegations against
D., although they knew him by another name. When the police made the connection with the prior
complaints, they re-interviewed the first two girls, and then arrested D. on four counts of indecent
assault against the four girls, and two counts of indecency with a child. The modus operandi
described by the two sets of children was the same: D. would befriend the parents, offer to care for
their children, buy them presents, find some excuse to send their brothers away, and then indecently
assault the girls, kissing them and touching their genitals. In the case of two girls he had forced them
to touch his penis. The gifts he purchased for the girls were more lavish than those he purchased for
the boys, and the girls interpreted the gifts as bribes. D. denied knowing the two sisters. This led
the police to conclude that they required an identification parade, even though the girls’ father knew
him, knew his address, and could probably have identified him in court. The identification parade
was delayed until March 1996 on the grounds of D.’s ill-health. Notwithstanding the two-year delay,
the sisters identified D. as their molester. It then took another 14 months before the case was tried.
The defence objected to the admissibility of the videotaped interviews, arguing that there were
multiple breaches of the Memorandum, including failure to test the girls’ understanding of ‘truth
and lies’, and frequent use of leading and persistent questions. An interviewer had told one of the
girls who was reluctant to make disclosure what her friend said. It was argued this raised a serious
risk of contamination. There were also objections to the technical quality of the video recordings, as
the witnesses were often inaudible. More than 350 errors in transcription of the tapes were
identified. Before the PDH, prosecuting counsel returned his brief. The new counsel concluded that
he could not tender even edited videotaped interviews as the complainants’ examination-in-chief,
because it would be “ludicrous” to have a seven-year-old testify in chief, then be cross-examined at
age 11. He elected to lead all four complainants in examination-in-chief, using the videolink. The
101
children were permitted to refresh their memories from their video interviews, and acquitted
themselves well as witnesses. The jury convicted D. on all counts. He was sentenced to six years’
imprisonment.
102
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110
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US v Snipes 18 M.J. 172 (C.M.A.1984)
111
112

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An Assessment of The Admissibility and Sufficiency of Evidence in Child Abuse Cases 1999

Încărcat de

Drepturi de autor:

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AN ASSESSMENT OF THE

ADMISSIBILITY AND SUFFICIENCY

A report for the Home Office

A report for the Home Of

by Gwynn Davis, Laura Hoyano, Car

© Crown copyright 1999

First published 1999

ISBN 1 84082 357 7

We also received invaluable advice and information from the following:

• The Australian Law Reform Commission

• Elisabeth McDonald, New Zealand Law Commission

SUMMARY OF KEY FINDINGS vii

CHAPTER II: THE LEGAL AND PROCEDURAL FRAMEWORK 5

CHAPTER III: INVESTIGATING AN ALLEGATION 15

CHAPTER IV: THE DECISION TO PROSECUTE 29

CHAPTER V: THE COURT 47

CHAPTER VI: ALTERNATIVE MODELS FOR ELICITING CHILDREN’S TESTIMONY 71

CHAPTER VII: CONCLUSION AND RECOMMENDATIONS 81

APPENDIX A: METHODOLOGY AND SAMPLING 87

APPENDIX B: INVESTIGATION AND PROSECUTION PATHWAYS (CROWN COURT CASES) 91

APPENDIX C: CASE VIGNETTES 93

SUMMARY OF KEY FINDINGS

Our study comprised two elements:

The majority of cases which we monitored involved sexual allegations.

Category of alleged abuse Frequency

Relationship to complainant Frequency

Total 124 (100%)

The videotaped interview has three purposes. It is:

The Decision to Prosecute

The Pre-trial Period

The Comparative Study: Alternative Models

Variations on ‘Half Pigot’

Variations on ‘Full Pigot’

Background to the Study

Our research objectives were as follows:

In total we studied 94 cases involving 124 complainants.

These 94 cases were subject to the following processes, as appropriate:

• paper file review, including observation of videos

CHAPTER II: THE LEGAL AND

The Background to Legal Reform

• there is no preliminary hearing to record the child witness’s evidence

The Background to Procedural Reform

Referral and Immediate Protection

Planning the Investigation

2 Cleveland C.C. v D. [1988] F.C.R. 615 at 623C.

The Initial Videotaped Interview

The Decision to Prosecute

• whether there is sufficient evidence to prosecute

Defence Applications for Third-Party Disclosure

Attendance of the Child Witness at Trial

Competence of Children to Give Evidence

The Initial Investigatory Videotaped Interview as Examination-in-chief

Cross-examination on the Prior Sexual History of the Child Witness

The Corroboration Warning

13 G. v DPP [1997] 2 All ER 755 (QBD).

Evidence of Recent Complaint

16 R. v Makanjuola, R. v Easton [1995] 3 All ER 730 at 732–733 (CCA).

Restrictions on Expert Testimony

Other Discreditable Acts of the Defendant as Part of the Prosecution Case

Previous Misconduct Disclosed in Cross-examination of the Defendant

24. R. v Valentine [1996] 2 Cr App R 213 at 223 (CCA).

Summary of Key Points