Legal Commentary. Special Measures for Child Defendants: A Decade of Developments
| Author | Nigel Stone |
| Published date | 01 August 2010 |
| Date | 01 August 2010 |
| DOI | http://doi.org/10.1177/1473225410369299 |
| Subject Matter | Articles |
Youth Justice
Legal Commentary
10(2) 174–185
© The Author(s) 2010
Reprints and permission: sagepub.
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DOI: 10.1177/1473225410369299
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Defendants: A Decade of
Developments
Nigel Stone
Any residual uncertainty whether the Crime and Disorder Act 1998 s.38 abolished all scope
for a finding of doli incapax in respect of a child defendant aged under 14 (in England and
Wales) or simply overturned the rebuttable presumption that a child of that age was inca-
pable of guilt has now been resolved in favour of the former interpretation by the decision
of the House of Lords in R v JTB [2009] UKHL 20; [2009] 2 WLR 1088; [2009] 2 Cr App
R 13. In consequence, the potential and demand for courts to have proper regard to the
developmental, intellectual and other psychological deficits of children facing trial, an
issue previously considered in Stone (2006), may assume somewhat greater significance.
The scope to deploy appropriate safeguards has recently been posed quite strikingly in
C. v Sevenoaks Youth Court [2009] EWHC 3088 (Admin), but it may be worth first sketch-
ing developments over the past ten years germane to this principle, having particular
regard to overlapping considerations pertaining to: (a) a child’s effective participation in
his or her trial; and (b) procedural fairness in the light of measures available to facilitate
the evidence of child witnesses at that trial. Both issues pertain to defendants’ ECHR
Article 6 rights to a fair trial.1
Recent Developments
Effective participation
In respect of a child’s right to a fair trial, the European Court in V. v United Kingdom
(1999) EHRR 121 held that:
It is essential that a child charged with an offence is dealt with in a manner which takes full
account of his age, level of maturity and intellectual and emotional capacities, and that steps are
taken to promote his ability to understand and participate in the proceedings.
Corresponding author:
Nigel Stone, School of Social Work and Psychology, Elizabeth Fry Building, University of East Anglia, Norwich, NR4 7TJ, UK.
Email: n.stone@uea.ac.uk
Stone
175
In the wake of that Strasbourg judgment the Lord Chief Justice issued a Practice Direction
[2000] 1 Cr. App. R. 483 seeking to standardize general arrangements for the trial of chil-
dren and young persons before the Crown Court. However, the Direction did not refer to
the particular needs of children with learning difficulties – or other mental impairment –
who might have greatest difficulty in participating effectively in their trial, and/or experi-
ence problems with conventional arrangements for child defendants in giving evidence.
These issues were addressed in SC v UK [2004] 40 EHRR 10, involving contested trial on
indictment of a boy aged 11 accused of attempted robbery, his prosecution proceeding
before the Practice Direction of 2000 came into effect. The defence argued that SC’s
Article 6 rights had been breached, notwithstanding measures put in place by the Crown
Court to facilitate his participation, having regard to his young age, his low attention span,
his diagnosed conduct disorder and the evidence of his social worker indicating that he
had been ‘totally perplexed’ by proceedings. In upholding his challenge the European
Court stated:
‘Effective participation’ in this context presupposes that the accused has a broad understanding of
the nature of the trial process and of what is at stake for him or her, including the significance
of any penalty which may be imposed. It means that he or she, if necessary with the assistance
of, for example, an interpreter, lawyer, social worker or friend, should be able to understand
the general thrust of what is said in court. The defendant should be able to follow what is said
by the prosecution witness and, if represented, to explain to his own lawyers his version of
events, point out any statements with which he disagrees and make them aware of any facts
which should be put forward in his defence.
Following an unpublished ‘review of child evidence’ commencing in December 2004, a
Consultation Paper issued by the Office for Criminal Justice Reform (2007) reported
‘general agreement that there should be extra support for vulnerable child defendants’ and
proposed various additional procedures. These included: an ‘advisory opening statement
by the bench’; ‘appropriate adult/supporter working with the defendant and defence advo-
cates to ensure the defendant understands the proceedings and is able to participate in
them’; ‘on-the-record “stock-takes” by the court, at each resumption of business, of the
defendant’s understanding’; intermediaries to assist poor communicators in giving evidence.2
In May 2008 the President of the Queen’s Bench Division issued an amendment (No. 15)
to the Consolidated Criminal Practice Direction (CCPD), adding Part III.303 (governing
‘treatment of vulnerable defendants’, the first category being the under-18s) which applies
to proceedings both at Crown Court and in magistrates’ courts. In summary, that direction
specifies that ‘all possible steps should be taken’ to assist a vulnerable defendant to under-
stand and participate in their trial and specific identified measures include:
• consideration of separate trial if jointly charged with a non-vulnerable co-defendant,
if that would not undermine the interests of justice (30.4);
• facility for an out-of-hours prior familiarization visit to the courtroom (30.6);
176
Youth Justice 10(2)
• police assistance in seeking to ensure that a defendant in a well-publicized case is
not exposed to abuse or vilification (30.7);
• freedom in normal circumstances for the defendant to sit during trial with family
members and with some other suitable supporting adult such as a social worker,
who should be available throughout proceedings, ‘and in a place that permits easy,
informal communication with his legal representatives’ (30.10);
• full account of capacity to concentrate, with frequent and regular breaks if appropriate;
• conduct of trial in simple, clear language and cross-examination using short and
clear questions (30.12).
‘Equality of arms’
Part II Chapter I of the Youth Justice and Criminal Evidence Act (YJCEA) 1999 consoli-
dated and extended the scope for ‘special measures’ assistance (in England and Wales) for
vulnerable witnesses, in light of advances in technology that can facilitate the deployment
of such measures, a key eligibility criterion being youthful age (identified as under-17 by
YJCEA 1999 s.16(1)(a)4). Section 16(1) explicitly excludes accused persons, of any age,
though s.19(6)(a) specifies that nothing in that Chapter of the Act ‘is to be regarded as
affecting any power of a court to make an order or give leave of any description (in the
exercise of its inherent jurisdiction or otherwise) in relation to any witness who is not an
eligible witness’. In brief these measures comprise: screening a witness from the accused
(s.23); giving evidence by live link (s.24); giving evidence in private (s.25); video-
recorded evidence-in-chief (s.27) and cross-examination (s.28 – yet to be implemented at
time of writing); examination through an intermediary (s.29)5; other aids to communica-
tion (s.30). Section 21 makes particular provision for child witnesses deemed in need of
‘special protection’, determined according to the nature of the alleged offence – essentially
allegations involving sexual abuse, violence, cruelty, false imprisonment or abduction –
creating a presumption or ‘primary rule’ that such witnesses will give their evidence-in-
chief via a video-recorded interview and other evidence via a live link. Limited power to
disapply that primary rule has been afforded by s.20(2).
If a provision designed to allow child witnesses to give evidence to the best of
their ability is not available to child defendants, is a child standing trial thus disad-
vantaged unfairly and deprived of the fundamental principle of equality of arms
under Article 6(1) – affording each side a reasonable opportunity to present his or her
case? As the Ministry of Justice (2009: 31) has reiterated, a child witness is more
exposed than a child defendant because the latter usually has the benefit of legal rep-
resentation to ‘help them to participate in the process and present the defence as effec-
tively as possible’.6 However, critics have claimed that the 1999 Act deprived
defendants ‘of the chance to compete on even terms’ (Birch, 2001), sometimes in cir-
cumstances such as...
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