Examination of child witnesses not in violation of Article 6

2 February 2016 by David Scott

Mark William Patrick MacLennan v Her Majesty’s Advocate, [2015] HCJAC 128 – Read judgment

The High Court has refused an appeal under Article 6 on the lack of effective cross-examination of child witness, but has provided interesting commentary on how such investigations could be better handled in future to meet Strasbourg standards.

by David Scott

 The Facts

The original charge concerned reports made against the appellant, the manager at a nursery in Fort William, from children alleging various forms of sexual contact. After initial allegations, joint investigation interviews (JIIs) were conducted between May and July 2013 with various children from the nursery. The value of some of the interviews was questioned by the High Court, with one described as “leading in the extreme” (paragraph 5), yet none were challenged by the defendant when presented as evidence during his trial.

The case was not reported to the Crown Office until 18 February 2014, and further commissions to collect evidence from the child witnesses were not conducted until the 1^st and 2^nd July 2014, over a year after the children’s first reports. These subsequent commissions took “an interesting, if predictable, course” (paragraph 10): children forgot they had attended nursery, had no recollection of the appellant, and were unable to remember or discuss the alleged incident.

A number of charges were found against the applicant, who subsequently appealed on the grounds that his right under Article 6(3)(d) was violated due to the delay in initiating the commission process. As the Crown had chosen not to refer to the initial JIIs at the Commission, the defence had been faced with the prospect of reminding the children of what they had originally said, negating the possibility of conducting any meaningful cross-examination.

The respondent argued that there were adequate safeguards in place, including judicial oversight of the commissions, appropriate directions to the jury, and the opportunity to cross-examine during the commission. The trial judge had directed the jury to exercise extreme caution with the evidence of the child witnesses at the JIIs and on commission, particularly emphasising the length of time between the JIIs and the commissions.

The Court’s Decision

The appeal was refused. While the starting point for the High Court was the principle that all evidence must normally be produced “in the presence of the accused at a public hearing with a view to adversarial argument”, (Saidi v France, paragraph 43; SN v Sweden, paragraph 44), this did not provide the accused with an unlimited right. The European Court had previously recognised the need for special features of criminal proceedings involving sexual offences, particularly in the case of child complainers, finding that the accused’s Article 6 rights had to be balanced against the Article 8 rights of the complainer, and it was primarily for domestic courts to ensure this balance was achieved (SN v Sweden, paragraph 47).

In the immediate case, the appellant had full opportunity to cross-examine and challenge the reliability of the children’s accounts at the JIIs, having regard both to the content of the JIIs themselves and the answers obtained at commission.  The fact that it appeared that the children could not immediately recall the alleged offences did not carry with it any implication that the cross-examination was not effective:  “on the contrary, the appellant’s counsel must have been reasonably content with the responses he obtained”. There had thus been no violation of the appellant’s right under Article 6.

Further guidance

The court went on to give two suggestions (and one criticism) for the future. The first, operable under the existing commission procedure, would permit the taking of evidence of young children at any time after the appearance on petition, avoiding unnecessary delay between the original complaint and the subsequent opportunities to cross-examine the witness. Such a provision would require introduction of a “relatively simple provision” by the Government, but would help to avoid a repeat of the questionable evidence produced in the immediate case.

The second suggestion would be to move away from the traditional approach towards one more similar to the Scandinavian model, facilitating defence involvement “very soon after, or even at, the JII”, if an accused so wished.  The move would “herald an end to seeing young children being questioned in a court or commission setting with the legal formalities of examination in chief and cross”, thus better protecting the Article 8 rights of the complainer. This would, however, require “far greater controls and training” to ensure continued fairness under Article 6.

As a final point, the court criticised the use of a psychologist’s expert opinion to establish the fairness of the JIIs (paragraph 6), “given the extensive material now available to lawyers on what constitutes a fair interview of a young child”. Decisions on such matters were to be made by lawyers and, ultimately, the judge.

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