Our intermediaries Jess, Sekai and Rachel talk about how we work with child witnesses
One of the most important ways evidence is presented at a trial or hearing is through a witness giving evidence. But how does the court ensure best evidence is given when a witness is a child under the age of 18?
This post aims to give you an insight into how intermediaries can implement measures and strategies to assist a young and vulnerable person to give evidence in court. We will discuss our role, as well as the relevant law and special measures that are available to a child witness and give a snapshot of our work with a child witness, from assessment to evidence.
Intermediary assessment of child witnesses
Firstly, how do we assess a child witness? The structure of an intermediary assessment is usually semi-formal, including tasks and set questions to gain a detailed understanding of that person’s communication profile.
In order to apply this to a child witness, all formality goes out the window. Building a rapport with a child may take much longer and is likely to be more difficult than an adult. Therefore, we must put in place strategies to promote rapport building from the very beginning, for example, wearing casual clothes and leaving ‘court attire’ at home.
We may play question games or use our surroundings to adapt the more formal assessment tasks to a child friendly format. Visual aids, colours and activities are all used to engage the child in the assessment and assess their communication skills without the formal environment.
One example could be using the simple game of ‘Simon Says’ to gain an insight into a child’s auditory working memory. Auditory working memory capacity relates to the number of key words we can hold in our minds at once, allowing us to accurately interpret and retain verbal information. The average adult is able to recall 6-8 key words. In children, auditory working memory capacity develops slowly, which can make it challenging for young people to ‘take in’ verbal information and fully understand long questions in a court setting.
Assisting a child witness in court
One of the most important stages in proceedings for an intermediary assisting a child witness at court is the Ground Rules Hearing. This is a short hearing which should involve the trial advocates and judge, as well as the intermediary.
At this juncture, the intermediary can answer any questions the court may have about the findings or recommendations of the intermediary report and discuss possible measures to assist the child witness. After discussion, the judge will then set the ground rules for the proceedings, stating what special measures may be used and what steps advocates must take when questioning the witness.
There are many strategies that we can implement to assist a child witness in court, which may be agreed at a Ground Rules Hearing for use during proceedings. This may include familiarisation visits to the court, ensuring the child witness has a comfortable environment in which to wait to be called to give their evidence, or assisting advocates in simplifying and rephrasing questions in advance of the child witness giving their evidence.
Child witnesses may also be permitted by the court to give their evidence via alternative means, including in a pre-recorded video session. This approach is explored in Rachel’s first-hand account of working with a child witness and the strategies she implemented to assist them to give their best evidence.
Assisting a child witness: Rachel’s experience
Part of being an intermediary means we get to assess and work with a wide range of people with a wide range of difficulties, and we get used to coming across lots of new situations and needs. When I was given the task of assessing a child witness in preparation for her evidence as part of a fact-finding hearing, I was nervous!
I wasn’t sure how Stacey* would react to being assessed and I wasn’t even sure I knew how to talk to or engage a young person. As always, I was supported by my colleagues and found ways to adapt my assessment so that Stacey was comfortable and happy to participate throughout.
The intermediary assessment
When I assessed Stacey, it was clear she had some communicative strengths, but because of her age and some anxieties around giving evidence in front of her parents at court, I recommended an intermediary to support her. The main recommendations in the report focussed on the wording of the questions she would be asked, making sure she had a familiarisation visit to the court and that she was allowed to give her evidence over a video link.
Preparations at court
Something else that is really important for young people is consistency. I was fortunate enough to be able to assess Stacey, accompany her to her familiarisation visit and then return to court a week later to assist with her evidence. This meant that by the time she came to give her evidence, she was comfortable with me, we had built a rapport and I had an even better understanding of her communication profile.
At the familiarisation visit, Stacey was taken to the vulnerable witness suite and shown all the facilities she had access to by the usher. It made me realise how even small things, like where Stacey would go to the toilet, could cause anxiety in a young person, and how important it was to take the time to go through these things beforehand.
When she was ready, Stacey was shown the video-link room where she would be giving her evidence from a week later. We spent as much time as she needed in here, deciding on seating arrangements and the positioning of the camera. She was shown exactly how she would see the court room, and how they would see her, so that when she gave evidence the next time she attended, nothing was a surprise to her.
Stacey did not realise that everyone in court would be able to see her, so when it was explained in this way, with the visual context to help her, she was able to express that she did not want one of the parties to see her. I was able to take her thoughts on board and inform the court at the Ground Rules Hearing.
It was agreed that screens would be placed around the monitor in court so that Stacey could be heard but not seen by the relevant party in court. If we had not had the familiarisation visit and chance to talk Stacey through how a video-link worked, she may not have realised this until she came to give evidence and it could have increased her anxiety to levels that were detrimental to her communication.
The role of an intermediary is to facilitate communication. Stacey was supported at the familiarisation visit by another adult – her support worker – who could ensure she was ok and support her emotionally, and I was there to ensure she understood how the process would work and that she was making fully informed decisions. As a team, this worked really well and we were both satisfied that Stacey was happy with the format and arrangement.
Another part of preparing a child witness to give evidence includes them watching their ABE interview. In Stacey’s case, we did this at the familiarisation visit. This presented a tricky part of the intermediary role, as while it was important to sure she was following her interview, it was essential to remain impartial and not to do anything that might seem like I was emphasising one part of her evidence over the other.
Instead, I monitored Stacey’s concentration and emotional management while she was watching the video of her interview and offered to pause it when it looked like she might need a break. Stacey accepted an offer of a break and went outside with her support worker for some fresh air. On her return, she was refreshed and able to complete the video.
Meeting the judge
The last part of the familiarisation visit involved Stacey meeting the judge. We went into a courtroom and the judge came to sit close to Stacey, rather than from her usual seating place at the bench. The judge used her first name and really put Stacey at ease, explaining the evidence process and why it was so important that the judge hears from her.
My job at this stage was the same as ever, just to facilitate communication and making sure Stacey had understood all the information the judge gave her.
When we finished with the judge, I asked Stacey what she thought. Before we went in, she said that she thought the judge was going to be strict and scary but meeting the judge the way we did made her see that the judge was kind and just wanted to find out what happened – another really important factor in reducing Stacey’s anxiety and giving her one less thing to worry about when she returned for her evidence the following week.
When I next saw Stacey, it was for the day of her evidence. I had received questions in advance from the barristers that were planning on questioning Stacey, and the barristers all logged onto a remote meeting so that they could introduce themselves to her beforehand. We then moved into the video-link room, I made sure Stacey was comfortable and repeated who would be talking to her first once we joined the hearing.
During someone’s evidence, the intermediaries’ job is to monitor the questions that are being put to them and ensure they follow the recommendations outlined in the intermediary report. This was the same with Stacey. I had been provided with questions in advance which reduced the amount of times I had to intervene for Stacey. This was better for her as it meant she was in the ‘witness box’ for as little time as possible as there was less interruption to her questioning.
It is also the job of an intermediary to monitor concentration and ensure a person isn’t becoming fatigued. I did so for Stacey and suggested a break to the judge when I thought Stacey had been answering questions for a long time. Although Stacey declined the break because she wanted to get her evidence ‘over with’, the judge supported my recommendation and we took a short rest break. Stacey had her break away from the video-link room so that she could have a complete break from the process.
After her evidence, my role as an intermediary was complete, as I am not able to discuss her answers with her or tell her how I thought she did. We went back into the vulnerable witness suite waiting room where she was greeted by her support worker who offered Stacey the reassurance and emotional support that, as intermediaries, we are unable to give.
(*Names and key details have been changed).
The Law: rules & regulations surrounding child witnesses
Children can be witnesses in a criminal trial, but there are special procedures for child witnesses because of their age and vulnerability. The Criminal Practice Directions supplement the Criminal Procedure Rules by guiding judicial discretion, detailing a range of adjustments that should be considered in all criminal cases that involve children.
The Criminal Practice Directions, on the other hand, are not secondary legislation. They:
- Supplement the rules acting as a guide for the exercise of judicial discretion
- Are binding in the criminal courts
- Detail a range of adjustments (special measures and procedural modifications) that should be considered in all cases that involve a child witness
Applying the Criminal Practice Directions
Legal representatives must be familiar with the detailed provisions in the Criminal Practice Directions and ensure that they are complied with. These can be raised:
- In the Crown Court, at the plea and trial preparation hearing, this hearing requires identification of any modifications sought or likely to be sought
- In the youth court, at the first appearance
- Where an application for special measures is granted or refused, the court must give its reasons
Special measures in court
Special measures are measures which have been put in place to help vulnerable witnesses, such as children, give their best possible evidence in court. They include:
- Screens around the witness box – to prevent a child from having to see the defendant and the defendant from seeing the child.
- Child witnesses can give evidence via a live TV link outside the courtroom – they will be able to see the courtroom and people in the courtroom and people in the courtroom, including the defendant, will be able to see them on a television screen.
- Giving evidence in private – members of the public and the press can be excluded from the court in some cases.
- Judges and barristers removing their wigs and gowns in the Crown Court to make the proceedings seem less intimidating.
- A video recorded interview of the child witness before the trial to be admitted by the court as their evidence – a live video link or screen can be used when they are being cross-examined by the defence.
- An intermediary to facilitate communication between the child witness and court. Intermediaries are also widely endorsed as measures which greatly improves the quality of evidence elicited from vulnerable witnesses, both because of their expertise in relation to the formation of advocates’ questions, and also because of their recommendations around the most effective combinations of special measures to invoke.
Current special measures limitations
The Victim’s Commissioner’s July 2020 Literature Review identified a number of current limitations affecting the implementation of special measures. For example, how well vulnerability and intimidation are being identified by the police, prosecutors and judges; whether the end-to-end process of preparing a vulnerable or intimidated witness for court and providing special measures is being delivered as it should be; to what extent child witnesses are part of the decision making on what special measures will work for them.
Other issues which the review identified that can undermine the effectiveness of special measures for child witnesses included: technology-related problems; poor planning of ABE interviews; and, problems with video transmission in courts. In regard to technology related problems, for example, the facilities for live link evidence leave a lot to be desired. The live link room is often very small and not child friendly; and with the current COVID-19 social distancing guidelines, if a child needs the support of both an intermediary and intermediary in the same room, it would be next to impossible to fit all three people in this space.