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GUIDANCE ON THE QUESTIONING OF CHILDREN IN COURT - Supporting Child Witnesses Guidance Pack

Introduction

1 Recommendation 5 of the Lord Advocate's Working Group on Child Witness Support was that in order to improve the standard of questioning of young witnesses:

• the Lord Advocate should consider inviting all those involved in criminal and children's hearing court proceedings to collaborate on the development of guidance on the questioning of children in court;
• the Director of Judicial Studies in Scotland should be invited to refer to such guidance in judicial training, in order to develop a more consistent approach to judicial intervention when questioning is deemed inappropriate.

2 Accordingly the Scottish Executive Justice Department set up a small working group comprising of a sheriff nominated by the Sheriffs' Association, representatives of the Crown Office, the Faculty of Advocates, the Law Society of Scotland, the Scottish Children's Reporter Administration and the Family Law Association.

Purpose of the guidance

3 What follows is intended to provide a brief summary of some basic points to assist all practitioners to conduct the examination of children in an effective, responsible and professional manner. It is not a detailed technical manual. It is neither possible nor desirable to prescribe detailed rules to be followed in every case irrespective of the circumstances in which a child is questioned. Sensitivity and common sense are needed and practitioners should consider all the issues very carefully before they go into the trial. ¹

4 It is, however, possible to identify certain advocacy techniques that can be usefully employed in this field. Some of what follows may appear to experienced practitioners to be rudimentary. It is, however, especially important where the questioning of children is concerned for all practitioners to learn how to use and to employ the basic advocacy skills. The effective questioning of children demands that responsible practitioners consider carefully the preparations that require to be made in advance of the hearing as well as the tone, content and manner of questioning to be employed. This guidance is intended to assist in these tasks. Finally, practitioners are reminded that only when it is unavoidable in the interests of justice should a child ² be called as a witness to give evidence.

Duty of the court

5 It is the duty of the court to ensure a fair trial. Consistent with this duty the court is also obliged to have regard to the reasonable interests of other parties to the court process, in particular witnesses and among witnesses particularly those who are obliged to relive by describing in the witness box an ordeal to which they say they have been subject. Where it is necessary in the interests of justice to call as a witness a child, steps will be taken to ensure that the interests of the child are protected consistent with the duty to ensure a fair hearing. In criminal cases the Memorandum by the Lord Justice - General on Child Witnesses ³ provides guidance to judges to assist them to ensure so far as is reasonably practicable that the experience of giving evidence by all children under the age of 16 causes as little anxiety and distress to the child as possible in the circumstances.

Duty of the practitioner

6 Any party intending to call a child as a witness in any proceedings should give notice of that intention to the other parties and to the court as soon as is reasonably practicable. It is the duty of every practitioner to ensure that the experience of giving evidence by all children causes as little anxiety and distress to the child as possible in the circumstances. The Guide to the Professional Conduct of Advocates and the Code of Conduct (Scotland) Rules 1992 ⁴ specifically provide that in the examination of witnesses and particularly the cross examination of hostile witnesses the law places the practitioner in a privileged position which he should not abuse. The court requires the assistance of parties in making suitable arrangements for the examination and cross-examination of children and ensuring that such examination is confined to what is strictly necessary in the interests of justice and the securing of a fair hearing. In an adversarial system it is necessary that each party should be vigilant as to the proper conduct of any examination of the child by the other and to take objection to any inappropriate examination.

Power of the court

7 Inappropriate questioning can be particularly harmful to children. Practitioners can expect the court to be particularly sensitive to the need to ensure that children are questioned appropriately. Practitioners should bear in mind that the court has inherent power, whether or not objection is taken by a party, to disallow questioning (1) that is irrelevant to the issue before it ⁵ (2) that has no object other than to insult the witness (3) that is intended to or has the effect of harassing the witness (4) that has as its purpose the making of a comment as opposed to eliciting a fact and (5) that involves repetition of a question that has already been clearly answered.

Pre-hearing preparation - identification of the issue

8 Pre-hearing investigation should be carried out skilfully, professionally and in accordance with published national guidelines. ⁶ These are necessary and appropriate safeguards - for the children involved, the investigators and for the investigation itself i.e. the ascertainment of the truth. The investigation should be completely transparent and open to scrutiny.

9 Parties should make every effort to identify in advance the issues to be determined.

10 Parties have a duty to try to reach agreement on all matters that are or are likely to be uncontroversial.

11 All parties and the court should be aware as far as is reasonably practicable of the respective positions of the parties in relation to the evidence that the child being examined will give. Where there are several parties it is important that arrangements are made to avoid the duplication of questioning so far as is reasonably practicable.

Pre-hearing preparation - accommodating the witness

12 The child should give evidence as soon as is reasonably practicable after the events being spoken about. Taking of evidence on commission (and if necessary recording it on video) in advance of the hearing should be considered.

13 Steps (such as the provision of screens, video link, familiarisation visit, removal of court dress, etc.) should be taken to facilitate the giving of evidence by the child. Account should be taken of the child's views in this regard. The parties must assist the court to take the steps in relation to the child. Parties should provide as much information as possible as early as possible in relation to the circumstances of the child and his or her requirements.

14 The child should be introduced to the examiners in advance of their examination. ⁷

15 Before giving evidence, the child should be made aware of the procedure and arrangements under which he or she will give evidence.

16 The pace of the examination should be dictated primarily by the needs of the child. Sufficient time should be allowed for breaks in the evidence as required.

Examination - general

17 Examination, Cross-examination and Re-examination require:

• Sensitivity. There is no substitute for sensitive awareness towards the child on the day and of the need not to harm the child at any stage of the process.
• Preparation. The examiner must read all of the papers in advance of the hearing, understand the issues in the case and be fully prepared to conduct the examination.
• Organisation. The examiner should organise the material to be examined. Ideally, the examiner should exhaust each topic being examined before moving on to the next one. It is helpful if the topic being examined is signposted at the beginning ⁸ and the end ⁹ of the examination on that point.
• Mutual Understanding. Before examining the child on the controversial matters it may be helpful to attempt to build a rapport with the witness. ¹⁰ Once the examiner has finished with rapport building he should clearly signal that he is moving to important matters. ¹¹
• Fact-finding. The purpose of examination is to elicit facts. Questions should be short and straightforward. ¹² The examiner should seek to elicit only one fact with each question asked. It may be irrelevant to seek explanations of behaviour. Care should be taken before asking a child why he or she did or did not do something. An answer to such a question from the child may be of little evidential value and irrelevant for the purposes of the trial. It may be harmful to the child to require him or her to provide an answer. It is also unhelpful to repeat persistently a question in the same form as children can alter their response according to what they may think the questioner wants to hear. It is unnecessary for a child witness to be told what another witness has said or is expected to say. Questions of that nature are apt to confuse the child. Likewise summarising or recapitulating an answer already given should be avoided in questioning and should not under any circumstances involve the use of words other than those already used by the child.
• Simplicity. The examiner should use as simple language as possible. Plain words should be chosen that can be clearly understood by the child. It is impossible to over emphasise the importance of the choice of words used in questions.
• Precision. Precision is required in the use of language in the question. Careful thought requires to be given to using as precise language as possible so that the child clearly understands what it is that is being asked.
• Pace. The examiner should speak slowly and clearly and allow for pauses by the child. The child should not be interrupted. Sufficient time should be given to the child to allow him or her to answer the question.
• Tone. The tone of questioning should be appropriate to the circumstances. Bullying and harassing a child is wholly inappropriate.
• Eye Contact. It is important that, so far as is reasonably practicable, the examiner maintains eye contact with the child during the examination. This is especially the case where CCTV equipment is being used. Practitioners should familiarise themselves with it before beginning the examination.

Examination in chief and re-examination

18 It is particularly important not to ask leading questions in relation to controversial matters. The child must be allowed to tell his or her story in her own words. The focus should be on the child and not the examiner. The examiner must be able to distinguish between a leading and non-leading question and should be able to elicit the evidence in a non-leading form. ¹³ If there remain background matters that are uncontroversial then the parties should identify these in advance of the examination and may agree that leading questions may be asked in relation to them. Practitioners may find it beneficial not to ask leading questions, even in relation to non-controversial matters or during rapport-building, as leading a witness, particularly a child, can be habit forming.

Cross-examination

19 While the purpose of cross-examination is to test the credibility and reliability of the evidence and it may necessarily involve a challenge to the child's account, practitioners are reminded that it is rarely appropriate to adopt a confrontational approach in the cross-examination of a child, particularly in the case of young children. Practitioners have a professional duty not to ask inappropriate questions. ¹⁴ Practitioners can expect that the court will not permit inappropriate questions to be asked.

20 In cross-examination leading questions are technically permissible and sometimes unavoidable (for example when putting an accused's position to a witness). However, practitioners should bear in mind that answers to such questions are often of limited evidential value. The credibility and reliability of a witness can be tested effectively without resort to leading questions. A spontaneous response to a non-leading question is far more telling than a doubtful assent to words put in a witness's mouth. Whatever its purpose, the Judge or jury may well place little weight on evidence elicited from leading questions in cross-examination.

Use of the guidance

21 The foregoing guidance has been produced for use where children are questioned in court in any proceedings by Prosecutors, Children's Reporters, Counsel, Solicitor Advocates and Solicitors as well as any other person who may be engaged in this process, including Safeguarders or Curators ad litem.

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