Judicial College Bench Checklist: Young Witness Cases

|General|Guidance

January 2012

Timetable response and make orders as necessary

  • Information provided about development/ health/ concentration span? Child’s competence is assumed if capable of intelligible testimony (may need intermediary) but need not give readily understood answers, appreciate difference between truth and lies or understand need to tell truth at court
  • Is child unlikely to recognise a problematic question or tell the questioner that (s)he has not understood? Consider assessment by intermediary, even if one was not used at interview
  • Ensure dates to avoid are obtained for child’s exam dates or other important events; intermediary; specialist witness supporter
  • Outstanding disclosure/ PII issues?
  • Has defence received DVD of interview? Playable and audible? Timetable for editing (schedule for child to see edited version)? Transcript?

Trial timetable

Priority fixed listing, not behind another trial or as ‘floater’

  • If live link is not available in all courtrooms, fix courtroom when trial date is set
  • Early start to child’s evidence (ensuring opening/ preliminary points will be finished). Schedule start to questioning while child is fresh. No other matters listed beforehand
  • Schedule e-in-c (DVD and any additional questions) and cross-examination, seeking time estimates from advocates. Take account of child’s concentration span, breaks, length of DVD
  • Consider whether child should watch DVD at a different time from jury (if so, child is sworn immediately before cross-examination, asked if (s)he has watched DVD and if contents are true). What protective measures should be put in place for alternative viewing e.g. presence of independent person asked to report to judge
  • Waiting on standby? Staggered arrival times if more than one child
  • Build in time to meet the child. Prosecutors are expected to do this and defence advocates may find it useful. It is up to the judge whether to meet the child with the advocates
  • Schedule ‘ground rules’ discussion about questioning (recommended in any young witness trial but required in intermediary cases). Adapting questions to individual witness takes time and thought. It is therefore preferable to discuss ground rules before day of trial

    Consider which special measure or combination of special measures is necessary

    Is judge satisfied that child has made informed preference based on demonstration of live link/ screens? Judge can permit opt out of primary rule (recorded e-in-c and live link) and secondary requirement (screens) – consider quality of evidence, age and maturity, ability to understand consequences of testifying in court, relationship with accused, offence etc.

  • Specify person independent, with whom child has relationship of trust) to provide emotional support in live link room: child’s wishes must be taken into account
  • Evidence in private in sex offence cases, or if reasonable belief that someone has sought or will seek to intimidate child
  • Combined special measures? Where there are specific reasons, some judges turn off or screen defendant’s monitor e.g. where child wants to use live link but fears being seen by defendant
  • Remote live link? From other court or non-court facility or using police equipment where child is anxious about confronting defendant/ supporters at court; or facilities make it difficult to keep child separate; or where intimidation is a concern. What evidence needs to be at remote site?
  • Witnesses over 18 who made a DVD statement when under 18 are eligible for SMs

    Judge is expected to be aware of arrangements for

    • Familiarisation visit(s) to the court and memory refreshing before trial
    • Protected access to court building, waiting room, link room or screens in courtroom
    • Escorts during breaks and separation arrangements when relatives are also witnesses
    • Child’s welfare e.g. need for asthma medication

    If there is an application to vacate a trial due to court reasons

    • Can another judge take the trial on the original date or can the trial be heard elsewhere, taking account of witness/ defendant views?
    • Can a trial with a lesser priority be vacated instead?
    • Re-list trial in shortest possible time if postponement is unavoidable

    Directions to both advocates at ‘ground rules’ discussions

    • Adapt questions to child’s developmental stage, enabling this child’s ‘best evidence’
    • Ask short, simple questions (one idea at a time)
    • Follow a logical sequence
    • Speak slowly, pause and allow child enough time to process questions (for younger children, almost twice as much)
    • Allow full opportunity to answer
    • Avoid question types which may produce unreliable answers. ‘Tag’ questions (e.g. ‘He didn’t touch you, did he?’) are particularly complex. Put more directly e.g. ‘Did Jim touch you?’ (and if the answer is ‘yes’) ‘How did Jim touch you?’ (Use name not pronoun)
    • Avoid allegations of misconduct without reasonable grounds. Being accused of lying, particularly if repeated, may cause a child to give inaccurate answers or to agree simply to bring questioning to an end
    • Do not ask children to give their address aloud unless for a specific reason
    • Do not ask children to demonstrate intimate touching on their body. Use a body diagram
    • How child is to be questioned about matters arising from third party disclosure
    • How defence case is to be put. For younger children, inform jury of evidence believed to undermine credibility, but do not necessarily address in detailed cross-examination (see R v Barker [2010] EWCA Crim 4)

    For guidance on questioning children and an example of a gender neutral body diagram, see Annexes A and B: www.nspcc.org.uk/Inform/research/findings/measuring_up_guidance_wdf66581.pdf.

    At trial

    • Check all directions are in place and all child’s needs catered for
    • Check that equipment is working and DVDs are compatible
    • Check that defendant cannot be seen over live link before child enters live link room
    • Ensure that the child can see all of the questioner’s face over live link
    • Ensure duration of cross examination is appropriate to the nature of the case and the age and attention span of the child and does not exceed the estimated time without good reason.

    Monitor questioning

    (Where ground rules on cross-examination are necessary ‘there is a duty on the judge to ensure that limitations are complied with’: see R v Wills [2011] EWCA Crim 1938).

    • Is tenor, tone, language and duration developmentally appropriate to this child?
    • Prevent questioning that lacks relevance or is repetitive, oppressive or intimidating
    • Be alert to possible difficulties in understanding and ask advocate to rephrase

    Explain to the child

    • The need to tell the truth. Don’t guess or leave anything out
    • You won’t get into trouble if you don’t know the answer
    • Say if you don’t understand (do not rely on the child to tell you)
    • How often breaks are planned. If you need a break, just say so
    • Tell me if you have a problem of any kind (some courts use coloured ‘signal’ cards in the live link room for this purpose)
    • I can always see you over the live link even when you can’t see me (one reason why some children fail to tell the judge about a problem).

    At the end, thank the young witness for giving evidence.