‘Robust and Raring to Go?’– Judges' Perceptions of Child Witnesses
| Published date | 01 December 2007 |
| DOI | http://doi.org/10.1111/j.1467-6478.2007.00401.x |
| Date | 01 December 2007 |
| Author | Fiona E. Raitt |
JOURNAL OF LAW AND SOCIETY
VOLUME 34, NUMBER 4, DECEMBER 2007
ISSN: 0263-323X, pp. 465±88
`Robust and Raring to Go?' ± Judges' Perceptions
of Child Witnesses
Fiona E. Raitt*
This article explores judicial perceptions of child wi tnesses. It
considers the impact of recent legislation in England and Wales as
well as in Scotland which classified all child witnesses as vulnerable
and introduced a series of special measures to facilitate children's
evidence. The article reports the findings of an empirical research
study conducted with the judiciary in Scotland which suggests that
judicial perceptions of child witnesses extend across a complex
spectrum where a child may be viewed as vulnerable but is also likely
to be seen as suggestible, reliable or resilient. The article advances two
propositions. First, that the statutory conceptualization of children as
invariably vulnerable has not displaced established beliefs concerning
children's suggestibility and therefore has made little difference to
perceptions of their ability to produce reliable testimony. Second, that
focusing on children's potential for resilience rather than their vulner-
ability may prove a more productive conceptualization of children, one
which could better support their capability as witnesses.
INTRODUCTION
Recent reforms in England and Wales as well as in Scotland classified all
child witnesses as vulnerable and introduced a series of special measures to
facilitate children's evidence. In this article I explore the impact of this move
towards a universal classification of child witnesses and discuss the findings
of an empirical research study with the judiciary in Scotland which suggests
that judicial perceptions extend across a complex spectrum and that not all
465
ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*School of Law, University of Dundee, Dundee DDI 4HN, Scotland
f.e.raitt@dundee.ac.uk
I wish to thank Pamela Ferguson, Hilary Graham, Suzanne Zeedyk, and the anonymous
referees for this journal for their helpful comments on earlier versions of this article. I
also wish to acknowledge the assistance of the Arts and Humanities Research Council for
an award under their Research Leave Scheme [AH/E000347/1] which enabled me to
write up the research findings discussed in the article.
judges see children as necessarily vulnerable. While most judges acknow-
ledged that some child witnesses may be vulnerable in certain circumstances,
judges also offered alternative characterizations in regard to the suggesti-
bility of child witnesses as well as more positive beliefs that, even if
vulnerable, children can also be quite resilient witnesses.
The article advances two propositions. First, that the statutory conceptual-
ization of children as invariably vulnerable has not displaced established
beliefs concerning children's suggestibility and therefore has made little
difference to perceptions of their ability to produce reliable testimony.
Second, that focusing on children's potential for resilience rather than their
vulnerability may prove a more productive conceptualization of children,
one which could better support their capability as witnesses.
The article begins by looking at the expectations underlying recent
legislative reforms, and then at some of the problems still confronting child
witnesses. Against this background I discuss the findings of the study, con-
ducted with twenty Scottish judges, which explored their perceptions and
practices in regard to the capabilities of child witnesses. I consider what their
broad spectrum of perceptions tells us about the impact of discourses of
vulnerability, the merits of special measures, and the alternative conceptuali-
zations that might be used to inform future policy making in this area. The
article is concerned primarily with child witnesses in criminal proceedings
and in particular those children who are complainants in sexual offence
cases. However, the arguments advanced have a potentially wider applica-
tion to child witnesses in other types of proceedings.
RECENT REFORMS AND UNRESOLVED PROBLEMS
Most countries with adversarial systems recognize that the prosecution of
cases involving child witnesses gives rise to particular difficulties, especially
when those children are the complainants in cases of sexual abuse.
1
In such
cases a child's difficulties are compounded when, as is so often the case, the
abuser is a member of the child's family, or another trusted adult known to
the child.
2
Since the 1970s, when the extent of the phenomenon of child
sexual abuse began to be grasped, the number of prosecutions involving
child complainants has significantly increased.
3
In addition to more cases
466
1
Scottish Law Commission, The Evidence of Children and Other Vulnerable Witnesses,
Report 125 (1990); New Zealand Law Commission, Preliminary Paper 26, The
Evidence of Children and Other Vulnerable Witnesses (1996); Australia Law Reform
Commission, A Matter of Priority: Children and the Legal Process, DRP3 (1997);
Home Office, Speaking Up for Justice ± Report of the Interdepartmental Working
Group on the Treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice
System (1998); South African Law Commission Project 107 Sexual Offences (2001).
2L.Kelly, Surviving Sexual Violence (1988).
3 Home Office, Crime in England and Wales 2002/2003 (2003).
ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School
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