Review: Children and Cross-Examination: Time to Change the Rules?
| Author | Laura Hoyano |
| Published date | 01 July 2014 |
| Date | 01 July 2014 |
| DOI | http://doi.org/10.1350/ijep.2014.18.3.460 |
| Subject Matter | Review |
John R. Spencer and Michael E. Lamb (eds.)
CHILDREN AND CROSS-EXAMINATION: TIME TO CHANGE THE RULES?
Hart Publishing (Oxford, 2012), ISBN: 9781849463072, pbk, £33
This collection of nine essays originated at a conference in Cambridge in April
2011, convened as a consequence of the widespread adverse publicity attracted by
the ordeal of a complainant aged four and a half, at the Old Bailey, in the trial of
Stephen Barker and her mother for anal rape of the girl when she was two years
old. The lengthy delay in scheduling of the rape trial was due to the unexplained
decision of the Crown Prosecution Service to try first the defendant and the child’s
mother for the murder of her little brother, known as ‘Baby P’. The cross-exami-
nation of the child proved largely fruitless, causing Barker to appeal on the basis
that she was incompetent to testify, but the Court of Appeal found her video
interview, recorded at the age of three, so compelling that they denied the appeal
(RvBarker [2010] EWCA Crim 4, [2011] Crim LR 233).
The trial publicity and the Cambridge conference gave renewed impetus to the
long campaign to institute pre-trial cross-examination of vulnerable witnesses,
enacted in the Youth Justice and Criminal Evidence Act 1999, s. 28, which had
not been brought into force due to perceived insuperable difficulties in imple-
mentation. Finally, in 2014, pre-trial cross-examination is being piloted for a
much reduced pool of vulnerable witnesses in three Crown courts in England.
OnehopesthattheessaybyJudgeHalJacksondescribingtheremarkably
successful Western Australian system of pre-trial cross-examination, in place
since 1992, will be salutary reading for the Ministry of Justice officials in London
responsible for setting up a workable system, although some adaptation will be
required since the Youth and Criminal Justice Act 1999 places primacy on the
video interview as the child’s examination-in-chief. Moreover, those pilots are
unlikely to result in a successful system of pre-trial cross-examination unless the
incisive recommendations of John Spencer in his concluding chapter are taken
seriously.
The primary message of all nine essays is that expediting the child’s exit from the
criminal justice system through pre-trial cross-examination is only part of the
solution to the ordeal to which they may be subjected by the adversarial system. I
say ‘may’, because very many child witnesses emerge from the trial relatively
unscathed, with 59 per cent of children in one study (n= 172) stating that they
thought they had been treated fairly in cross-examination (J. Plotnikoff and R.
Woolfson, Measuring up? Evaluating Implementation of Government Commitments to
Young Witnesses in Criminal Proceedings (NSPCC: July 2009)). But, as Plotnikoff and
Woolfson also tartly note in their chapter ‘The Slow Road to Best Evidence’, a
doi:10.1350/ijep.2014.18.3.460
286 (2014) 18 E&P 286–290 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
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