Child rape case sparks debate on child witnesses in criminal courts
28 May 2010
The recent Old Bailey case involving two boys aged 10 and 11 accused of rape on an eight year gold has reignited the long running debate over the treatment of child witnesses in the adversarial courts system.
In a Daily Telegraph article John Bingham and Caroline Gammell report that
More than 1,000 children under the age of 10 are called to give evidence in courts in England and Wales every year.Almost two thirds are themselves the victims of crime, asked to relive a traumatic experience, often as much as a year after the event. Although special measures are in place to make the ordeal of giving evidence in court less stressful, the current system remains open to criticism.There is no legal minimum age to give evidence in court but prosecutors must be satisfied that a child is capable of understanding evidence and being cross-examined before they can be called.
It should be noted at the outset that evidence from children can only be compelled by the courts in criminal prosecutions. We posted recently on the case of Re W (Children)  UKSC 12 , where the Supreme Court ruled that refusing an application for a child to give evidence in a trial may contravene Article 6 of the European Convention on Human Rights (ECHR). Lady Hale said at para 22 of the judgment:
The existing law erects a presumption against a child giving evidence which requires to be rebutted by anyone seeking to put questions to the child. That cannot be reconciled with the approach of the European Court of Human Rights, which always aims to strike a fair balance between competing Convention rights. Article 6 requires that the proceedings overall be fair and this normally entails an opportunity to challenge the evidence presented by the other side. But even in criminal proceedings, account must be taken of the Article 8 (privacy/family life) rights of the perceived victim: see SN v Sweden, App no 34209/96, 2 July 2002. Striking that balance in care proceedings may well mean that the child should not be called to give evidence in the great majority of cases, but that is a result and not a presumption or even a starting point.
In the family courts there is a discretion to disallow the cross examination of minors. The injustice this leads to is evident, as discretion is almost always operated in favour of children – even those accusing the adult party concerned of serious sexual assault. The accused party has no chance to test the evidence against him and the consequences for his own personal and family life are often as severe as if he had been charged with a criminal offence.
The current hand-wringing about children caught up in the criminal process should not distract us from the fundamental basis of the adversarial system – that facts must be proved by oral evidence given on oath before the court which can then be tested by cross-examination. There have in any event been a number of developments in the criminal courts in relation to the way in which a child’s evidence might be given following the 1989 Report of the Advisory Group on Video Evidence (the Pigot Report); the aim of all these measures is to enable witnesses who would not otherwise be able to give of their best in a criminal trial to do so.
It is true that although there are proposals to use live television links, video recordings are only used as evidence in chief; they are not available for cross examination. This is because, once again, there is only one way of testing the evidence, which is by face to face examination.