Safeguarding Children
Guidance on Children as Victims and Witnesses

Chapter Updated 16/04/08

Contents

• Introduction
• Prosecutors and Safeguarding
  • Working Together
• Cases involving Children
  • Reviewing
    • Achieving Best Evidence
    • Code for Crown Prosecutors
  • Domestic Violence
  • Child Prostitution
  • Trafficked Children
  • Pre-trial Therapy
  • Communicating Decisions not to Charge or to discontinue or substantially alter a charge.
• Family Proceedings
  • Family court documents
  • Distinction between use of information and use of documents
  • Protection against self-incrimination
  • Disclosure of criminal material to family courts
  • Joint case management direction hearings
• Historical and Institutional cases
• The Court Process
  • Bail
  • Venue
  • Transfer
  • Special Measures
  • Disclosure
• The Trial
  • Introductions
  • Explaining proceedings
  • Waiting Time
  • Explaining delays
  • Training on special measures
  • Familiarisation visits
  • Memory refreshing
  • Specialised child witness supporters
• Publicity
  • S.33 and 49 Children and Young Persons Act 1933
  • Other provisions
• Acceptance of Pleas
  • Considerations
  • Basis of plea
• Not guilty pleas
  • Video evidence and live link
  • Remote link
  • Support
  • Vetting
• Advocacy
  • How questions are asked
  • Inappropriate questioning
  • Equal Treatment Bench Book
• Sentencing
  • Sentencing Guidelines Council Definitive Guideline
  • Offences committed in the presence or close proximity of a child
  • Disqualification
  • Independent Safeguarding Authority
  • Sexual Offender Orders
  • Mitigation
• After the hearing
  • Explaining the outcome
  • Communicating the result of the case
  • Saying Thank you
• Annex 1
  Contextual Chronology
  • The Children Act 2004
  • Joint Reviews of Safeguarding
  • Definition of Safeguarding
  • Definition of Child Protection
  • HMCPSI Thematic Review 2005
• Annex 2
  Local Safeguarding Children Boards (LSCBs)
  • Membership
  • Functions
  • CPS involvement with LSCBs
• Annex 3
  Witness Care Unit Child Witness Checklist
• Annex 4
  Aide-memoire checklist
• Annex 5
  Good practice when questioning children at court

Safeguarding Children:
Children As Victims And Witnesses

Safeguarding is defined by the Department for Children, Schools and Families (DCSF) in its guidance [Note: Working Together to Safeguard Children: A guide to inter-agency working to safeguard and promote the welfare of children] as:

"[the] process of protecting children from abuse or neglect, preventing impairment of their health and development, and ensuring they are growing up in circumstances consistent with the provision of safe and effective care which is undertaken so as to enable children to have optimum life chances and enter adulthood successfully."

Introduction

1. In 1991, the Government agreed to be bound by the United Nations' Convention on the Rights of the Child. Article 3.1 states:

"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration"

2. Article 1 of the UN Convention defines a child as any person who has not yet reached their 18^th birthday.

3. The purpose of this guidance is to provide detailed practical and legal guidance to prosecutors dealing with cases that involve children and young people as victims and witnesses. It does not deal with children who offend - separate guidance is available in relation to youth offenders. Separate, detailed guidance [Note: Publication due March 2008] is also available in relation to child abuse cases.

4. It is not the purpose of the guidance to reiterate the detail of generic guidance that can be found elsewhere, for example, guidance on the application of special measures or direct communication with victims. Where a reference is made to such guidance a link will usually be provided.

Prosecutors And Safeguarding

5. Prosecutors have contact with children as victims or witnesses and also as defendants, indirectly when making charging decisions and in the course of reviewing files and more directly when prosecuting cases in court.

6. Although the main responsibility for children's welfare and safety will usually lie with other agencies such as social, health and education services, there is, nevertheless, a clear role for prosecutors in terms of safeguarding children.

7. This guidance goes on to deal in more detail with measures that can be taken to help safeguard children in the course of criminal proceedings, but the position can be summed up in the following principles: expedition; sensitivity; and fairness.

8. The 2005 HMCPSI report Safeguarding Children [Note: Safeguarding Children: The second joint Chief Inspectors' Report on Arrangements to Safeguard Children] gives the following examples of the role of the CPS in safeguarding children:

• fulfilment of the Service's stated principles of expedition, sensitivity and fairness in cases involving allegations of child abuse;

• high standards of advice, decision-making, case preparation, advocacy and witness care in cases of child abuse;

• alertness to the involvement of children in prostitution, and the CPS policy of regarding them as victims;

• consideration of the wider impact of offences of domestic violence upon children of the family;

• consideration of the use of children as witnesses, witness care and of special measures to enable them to give evidence in the best way possible in terms of quality of their evidence and reducing trauma to them;

• high standards of advice, decision-making (as to prosecution or diversion), case preparation and advocacy in relation to child offenders; and

• a close and positive working relation with other agencies and participation in ACPCs or in future LSCBs.

9. Prosecutors' decisions and actions may have a direct impact on the safety of a child in individual cases, for example: when considering whether bail (with or without conditions) is appropriate; or when deciding on the level of charge or the public interest in prosecuting a case; or successfully prosecuting offenders who pose a danger to children, so that the courts can impose sentences that protect children.

10. The concept of safeguarding children is equally applicable to the process as well as the decisions made during that process. The standards are set out in the CPS public policy statement "Children and Young People" [Note: 'Children and Young People' CPS policy on prosecuting criminal cases involving children and young people as victims and witnesses. (June 2006)].

11. One of the key points to recognise is that the prosecution process itself, especially the trial, can be daunting and stressful for children. There are risks of re-traumatising the child or causing the child unnecessary worry and distress.

Working together

12. One of the very clear messages of Every Child Matters [www.everychildmatters.gov.uk], the Children Act 2004 and recent joint thematic Safeguarding Children inspections is that there can be considerable benefits to be gained where agencies and authorities establish close working relationships and share information. Prosecutors should therefore, where independence and objectivity are not compromised, positively engage with other authorities and agencies to safeguard children [Note: In Manchester, representatives of the CPS, the Police and Social Services meet to discuss the full circumstances of the case so that the CPS decision is based upon all available information, not just the papers supplied to the CPS by the Police. The CPS is therefore aware of the Local Authority's involvement and outcome, which influences the CPS decision.]. One formal forum where such engagement can take place is the Local Safeguarding Children Board (see further at Annex 2 below).

Cases Involving Children

13. Children can be victims in relation to any offence. For example, as victims they may be abused sexually or physically by adults or, much more commonly, they may be assaulted by other children or have their possessions damaged or stolen.

14. Children may also be witnesses in cases involving other children or adults for offences from common assault to homicide. In the domestic setting they may witness violence against a close family member.

15. Children can be affected by crime even if they are not themselves victims or witnesses. A child may be seriously affected by, for example, domestic violence, even if not present in the same room where the offence is committed.

16. The Code for Crown Prosecutors includes committing an offence in the presence of or in close proximity to a child as a public interest factor in favour of prosecution.

17. Whatever the offence, prosecutors should consider the position of the child and what can be done, having regard to the role and the powers of the prosecutor, to safeguard the child. While it may appear obvious in cases of, say, sexual abuse, it may not be so clear when the child is a witness to an apparently minor offence such as criminal damage by another child.

18. However, even in the latter case there are safeguarding issues to consider - while the child may not be in any danger as a witness (though even in a minor case he/she may be at risk of intimidation), he/she will still be likely to suffer from stress and worry at the thought of having to give evidence in court. It is unlikely to be possible to eliminate this altogether, but prosecutors should take such steps as are possible to reduce it to a minimum [Note: The Witness Care Unit Child Witness Checklist states that a tailored needs assessment must be prepared for each witness as an individual. See Annex 3.].

Reviewing cases where the child is a victim or a witness

Achieving Best Evidence (ABE)

19. The recently revised Home Office Guidance "Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable or Intimidated Witnesses, including Children" [Note: Revised November 2007 http://www.homeoffice.gov.uk/documents/achieving-best-evidence/guidance-witnesses.pdf] provides detailed recommended procedure for interviewing child witnesses. It considers planning interviews, decisions about whether the interview should be video recorded or a statement taken, preparing the witness for court and subsequent court appearances, pre-trial therapy and special measures.

20. Although the guidance is advisory and does not constitute a legally enforceable code of conduct, significant departures from the guidance may have to be justified in court if relied upon by the defence to challenge part or all of the evidence of the witness. Prosecutors should therefore have the ABE guidance in mind when reviewing cases in which a child is a victim or witness.

Code for Crown Prosecutors

Evidential stage

21. In relation to the evidential test, there may be situations in which the age of the child is such as to raise a question as to whether or not he/she is capable of giving understandable evidence or being cross-examined. It is important not to make assumptions based on age alone. Each child is an individual and will have different levels of ability.

22. There is no lower age limit in relation to giving evidence, but prosecutors should be satisfied that the child will be able to give understandable evidence - all witnesses have to be able to understand questions and be able to give replies that can be understood [Note: Section 53 Youth Justice and Criminal Evidence Act 1999 sets the test for whether the child is competent to give evidence]. Whether this is critical to the case will depend on what other evidence is available. Prosecutors should, however, consider all options available that would enable a young child or a child with learning difficulties to give evidence effectively; for example, through the use of witness profiling or an intermediary.

Public interest stage

23. So far as the public interest test is concerned, a prosecution is more likely to be needed in the public interest, if the offence was committed in the presence of or in close proximity to a child (Code 5.9j). This is, of course, subject to any factors that may make a prosecution less likely to be needed. (Code 5.10).

24. The UN Convention on the Rights of the Child requires that authorities should give primary consideration to the best interests of the child. In terms of prosecution, this means that prosecutors are bound to consider the likely consequences for any children, be they victims or witnesses, of proceeding with a prosecution. Careful consideration must therefore be given to the factors for and against prosecution.

25. Factors in favour of prosecution that may relate to cases involving child victims include the defendant was in a position of authority or trust (Code 5.9e), the victim was vulnerable (Code 5.9i) or there is a marked difference between the actual or mental ages of the defendant and victim (Code 5.9l).

26. These factors are particularly relevant to cases involving an adult defendant. They may carry less weight where the defendant is also a child as Crown Prosecutors must consider the interests of a youth when considering whether it is in the public interest to prosecute. (Code 8.8). In such circumstances it will be necessary to balance the competing public interest factors before reaching a decision on prosecution.

27. The other public interest factor that must be taken into account is whether a prosecution is likely to have a bad effect on the victim's physical or mental health (Code 5.10f). This is equally applicable to deciding whether or not a child witness, who is not a victim, should be required to give evidence in court.

28. The more traumatic the offence for the child (being a victim of or a witness to violence or sexual abuse are the most obvious examples), the more likely it is that criminal proceedings may re-traumatise and cause further emotional damage to the child. Yet the most serious cases are usually the ones that will, on the facts, require a prosecution in the public interest, both to secure justice but also to provide protection for the child and the public at large.

29. It follows that prosecutors will have to balance the interests of the child with the wider interests of the public at large in reaching a decision on whether or not to prosecute. Some decisions will inevitably be very sensitive and finely balanced.

30. In such cases prosecutors should ensure that the final decision is fully supported by relevant information and reasoning. In many cases it is possible adequately to mitigate adverse effects of the trial process by applying for appropriate special measures. In extreme cases, witness anonymity, for example, may be considered.

31. Prosecutors should also consider factors other than those relating directly to the trial process. For example, if there is a real risk of intimidation outside court it may be possible to take steps to prevent this. In general terms prosecutors should be satisfied that appropriate witness care arrangements are in place to reduce stress and worry on the part of the child.

32. As part of the review process, prosecutors should always be satisfied that the police have provided them with adequate information on the circumstances of the child for an informed decision on the public interest to be made. This may entail asking the police to make further enquiries with the child's family or social services as to the effect that giving evidence may have psychologically or emotionally on the child.

33. Prosecutors should also ensure that the police have informed them of ALL children who may be involved in the case whether or not they are witnesses to the offence(s) under investigation, in order that a fully informed casework decision can be made. Other children may be at risk - this is an important factor to take into account when considering the public interest. Prosecutors should enquire whether there have been any previously recorded incidents and whether there are or have been any other relevant criminal or civil/family proceedings.

34. The views of the child and the carers about giving evidence must be considered and factored into the balancing exercise when considering the public interest test.

Domestic violence

35. In cases of domestic violence, prosecutors should always seek information from the police regarding the presence of children in the household, the extent to which they have been exposed to the domestic violence and whether the children are subject to any orders, for example, child protection register, contact, non molestation orders.

36. There may be cases in which a child who witnessed the incident wishes to give evidence but the victim will not permit the police to interview the child. In such cases prosecutors will need to consider the ECHR implications (child's rights) as well as the evidential and public interest factors that arise. An approach to the local Social Services department may be appropriate for the police to make arrangements to interview the child [Note: See further CPS Guidance on Prosecuting Cases of Domestic Violence].

Child prostitution

37. Some children are persuaded, lured or forced into prostitution. We will treat them as abused children who need help. We aim to prosecute people who organise prostitution and who benefit financially from abusing children.

Trafficked children

38. Trafficked children may be forced to commit criminal offences while they are in a coerced situation. These include theft in organised "pick-pocketing" gangs, and cultivation of cannabis plants. Where there is clear evidence that the youth has a credible defence of duress, prosecutors are advised to discontinue the case on evidential grounds. In these circumstances, the youth may well then become a victim or witness to a prosecution against those who have exploited them. Guidance is contained in Policy Bulletins 50/2007 (LG/22) and 126/2007 [http://infonet.cps.gov.uk/infonet/infonet_live/Gateway/xml_013450].

Pre-trial Therapy

39. It is a fundamental aspect of CPS policy and the multi-agency practice guidance on pre-trial therapy [Note: Provision of Therapy for Child Witnesses Prior to a Criminal Trial: Practice Guidance (2002) (currently being updated). http://www.cps.gov.uk/publications/prosecution/therapychild.html] that the best interests of the child are paramount when deciding whether, when and in what form, therapeutic help is given.

40. It has been a common misunderstanding that CPS will not allow a child to have therapy before a criminal trial in case it contaminates the evidence. This is completely wrong. We will never prevent a child having therapy before a criminal trial if that would be in the best interests of the child, even if this might lead to the prosecution having to be halted. However, prosecutors should ensure that they are aware that therapy is being provided and advise the police on the potential consequences for the trial having regard to the particular nature of the therapy proposed or being undertaken. Further details can be found in the multi-agency practice guidance.

Communicating decisions not to charge or to discontinue or substantially alter a charge

41. Where a decision is made not to proceed with an offence and the responsibility falls on the CPS to inform the victim of the reasons for the decision, in the case of child victims prosecutors need to consider carefully to whom letters should be sent.

42. We will usually write to a child's parents or carers, but this cannot be a fixed rule. There may be reasons why the parents or carers should not know. One or both of them could be a defendant. A parent or carer may not be supportive of the prosecution.

43. Prosecutors and Witness Care Officers will need to decide who to contact if a child is being looked after by a local authority or children's organisation. This should be done in consultation with the child where appropriate, through the officer in the case or the Witness Care Unit, or a trained supporter.

44. The decision, and the manner of communication, is a matter for the judgement of the prosecutor having regard to the maturity of the child and the general circumstances of the case, though it would not normally be appropriate to write to a child under the age of 12.

45. The child may be of such an age that his/her carers need not be informed (by analogy with the so-called Gillick principle in relation to confidentiality of medical advice). This will not usually be an issue as the carers will normally be well aware of the position, but in some sensitive cases they may not, because the child does not want them to know. The police will be best placed to advise the prosecutor of the position.

46. Similarly, in cases where a meeting has to be offered, there may be issues over the involvement of the child or carers in the meeting.

47. Prosecutors should refer to Direct Communication with Victims guidance for further detail [http://infonet.cps.gov.uk/infonet/legal/specific_offences/victims_and_witnesses/xml_003993].

Family Proceedings

48. Prosecutors will need to consider in appropriate cases (domestic violence, child sexual abuse, neglect or cruelty, for example) whether to make enquiries through the police of the local authority solicitors, about family proceedings.

49. The Law Society publication Related Family and Criminal Proceedings - A Good Practice Guide [www.familyjusticecouncil.org.uk/publications] provides route maps for criminal, public and private law family proceedings and Family Law Act proceedings, together with information-sharing protocols. The purpose of the Guide is to assist criminal lawyers unfamiliar with the family justice system and vice versa to understand what it is their colleagues are required to do and to help them work together in concurrent proceedings with a view to better outcomes for children.

50. Prosecutors should be sensitive to the effect of delays on family proceedings (and, particularly, the impact on the child) caused by long bail dates or delays in making decisions in criminal cases. In some areas courts hold joint case management appointments with a single judge supervising both the criminal and family proceedings.

51. In relation to documents that have not been filed with the family court, the national ADSS/CPS/ACPO protocol [Note: See Appendix 2 Related Family and Criminal Proceedings - A Good Practice Guide www.familyjusticecouncil.org.uk/publications or http://infonet.cps.gov.uk/consump/groups/policy/documents/legalguidance/pdf_000988.pdf] makes provision for applications by the police/CPS for access to the local authority's files.

Family court documents

52. Where documents have already been filed in family proceedings, an approach should be made to the local authority (in care proceedings) or to the parties solicitors, to seek general information about what documents exist. A decision should then be made as to whether or not to make an application to the family court to see the documents.

53. It is no longer a contempt of court (s62 Children Act 2004) for certain information about family proceedings held in private in the Supreme Court of England and Wales (High Court) or Family Proceedings Courts (before magistrates or district judges) to be given to CPS by specified people. Leave of court is no longer required in every case. [Note: The Family Proceedings (Amendment No 4) Rules 2005; The Family Proceedings Courts (Miscellaneous Amendments) Rules 2005.]

54. A party in family proceedings or any person lawfully in receipt of information can give the 'text or summary of the whole or part of a judgment given in the proceedings' to a police officer for the purposes of a criminal investigation or to a member of the CPS 'to enable the Crown Prosecution Service to discharge its functions under any enactment.' [Note: Rule 10.20A (3) The Family Proceedings (Amendment No4) Rules 2005.]

Distinction between use of information and use of documents

55. Apart from the judgment, there may also be information contained in family court case papers that would be relevant to the criminal case such as: previous consistent or inconsistent statements of witnesses or defendants; evidence of similar incidents; material for bad character applications; medical reports. Disclosure and use of such documents is restricted.

56. Rule 23A(c)(viii) Family Proceedings Courts (Children Act 1989) Rules 1991 as amended and Rule 10.20A(2)(viii) The Family Proceedings (Amendment No4) Rules 2005, which came into force on 31 October 2005, now permit:

the communication of information relating to the proceedings (whether or not contained in a document filed with the court) not only where the court gives permission, but also where the communication is to (amongst others) "a professional acting in furtherance of the protection of children", which is defined as including a police officer who is exercising powers under s46 of the Children Act 1989 (removal and accommodation of children in cases of emergency) or is serving in a child protection unit or a paedophile unit of a police force, or any professional person attending a child protection conference or review in relation to a child who is the subject of the proceedings to which the information relates.

57. The investigation and prosecution of offences against a child will be part of the protection of children; it is therefore permissible to disclose to an officer acting in a child protection function, documents relating to proceedings in addition to information contained within them. However, the officer or professional person receiving the communication is not entitled to make use of the documents (as opposed to the information contained within them) without the permission of the Family Court.

58. Prosecutors should ask if the police already have, or can obtain copies of orders and judgments and, in appropriate cases, should further consider whether an application for leave to obtain and use any other documents or information is required. An application for access to documents must be made to the judge in the proceedings.

59. In practical terms, this is likely to involve the police liaising with the local authority in the first instance. Where the application is unopposed, there is scope for the application to be considered as a paper application thus avoiding the time and costs of a court hearing.

60. In care cases, the police often ask the local authority to make an application on their behalf. The local authority can seek a directions hearing at which it can provide the court with all relevant information. The court can, of course, subsequently require an oral hearing if this appears advisable. [Note: Practical guidance on making such applications will be sought from the Family Criminal Interface Committee in Spring 2008.]

61. In many cases however it will be preferable for the police to make their own application as they will know what is wanted and why it is relevant to the prosecution's purposes. Additionally, the local authority is not a limb of the police and it is not helpful in the family proceedings for the respondent parents to perceive them as such.

62. The case of A Borough Council v D and others [Note: [2006] All ER (D) 211 (jun); [2006] EWHC 1465 (Fam) also referred to as Borough Council v A and others (Chief Constable intervening) [2007] 1 All ER 293] sets out the principles, the limits to disclosure of information to and by the police in family cases and the procedure to follow if disclosure is sought. In this case the court ruled that the police officer could use the information, but not the documents disclosed to him, for both child protection and criminal investigation purposes. However, to use the documents the officer had to seek the court's permission. It was for the Family Courts to decide whether documents that had been filed with their court should or should not be disclosed. Once disclosed, the use of the documents in other courts would be for those other courts to determine.

Protection against self-incrimination

63. Section 98(1) of the Children Act 1989 provides that in proceedings under part IV or V of the Act [Note: Section 98 (2) does not apply to admissions made in Private Law proceedings. Re D&M (disclosure: Private Law) [2003] 1FLR 247] (eg care, supervision, emergency protection orders) no person should be excused from giving evidence on any matter or answering any question put to him in the course of his giving evidence, on the grounds that doing so might incriminate him or his spouse of an offence.

64. Section 98(2) provides that a statement of admission made in such proceedings shall not be admissible in evidence against the person making it, or his spouse, in proceedings for offences other than perjury.

65. The protection offered by section 98 (2) is just one of the factors to be considered by the Family court when deciding whether to permit disclosure of documents to the police/prosecution.

66. It should be noted that the prohibition in section 98(2) refers to "criminal proceedings" and does not extend to a police investigation. The police may therefore put matters to a suspect in his interview under caution. If adopted, the admissions then become admissible in the criminal proceedings in the usual way - subject to the usual provisions of s.76 and 78 PACE.

Disclosure of criminal material to the family courts

67. The police and CPS often receive requests from parties in family proceedings (particularly care cases) for disclosure of material generated during the police investigation. Neither blanket approval nor blanket denial would be appropriate responses. The merits and risks of disclosure should be considered in respect of each item. Where criminal proceedings have already started, the decision should be made by prosecutors, in consultation with the police. Where criminal proceedings have not yet started, police will often consult the CPS in any event.

68. An ACPO Police/Family Disclosure Protocol [Note: Appendix 2 - Related Family and Criminal Proceedings - A Good Practice Guide www.familyjusticecouncil.org.uk/publications] sets out mechanisms for the appropriate disclosure of police information in family proceedings courts to assist the courts in the determination of any factual or welfare issue within the family proceedings.

69. Prosecutors have a duty to protect the integrity of the prosecution process and to ensure, as far as they are able, that a fair trial takes place. Disclosure to parties in family court proceedings of material such as statements, exhibits, police records, generated during the police investigation in relation to cases where criminal proceedings have not yet concluded, or the decision to start them has not yet been made, run the risk of prejudicing a fair trial.

70. Local authorities and Guardians ad Litem have a duty to investigate a child's background and to provide the court with all relevant information. Material generated by a police investigation is likely to contain relevant information. CPS policy (as set out in the Legal Guidance chapter Disclosure of material to third parties) is that prosecutors should try to provide assistance to local authorities and Guardians ad Litem seeking to discharge their statutory responsibilities.

71. Prosecutors should first identify the nature and degree of risk of prejudice to a fair trial in disclosing particular items of material. Having identified the risk, what material can be disclosed without compromising a fair trial? If material cannot be disclosed safely forthwith, can it be disclosed at a later date? What is the issue at stake in the family court?

72. Where possible, agreement should be reached with the local authority or parties' solicitors as to the extent and timing of any disclosure. This should help to avoid a court hearing. If agreement cannot be reached, the applicant party should be informed in writing, with reasons, why no or only partial disclosure can take place. The letter is likely to be placed before the family court Judge and so all reasons should be fully articulated.

Joint case management direction hearings

Joint case management direction hearings may be considered useful where there are concurrent criminal and family proceedings and issues arise as to disclosure of information or mutually convenient timetabling.

Historical And Institutional Cases

Historical cases

74. Allegations arising from incidents (from several to many) years earlier are a common feature of prosecutions involving child victims, particularly allegations of sexual offences. In some cases, the child victims will now be adults.

75. There are good reasons why such cases do not come to light at the time of the incidents, beyond the possibility that they are untrue. For example: children are used to being controlled by adults and offenders can be expert at exercising control; they may not even realise until they are older that they have been subjected to abuse; they may only be prompted to reveal what happened to them when they see the pattern being repeated with younger relatives.

76. There is nothing that intrinsically prevents a prosecution merely because the incident dates from a much earlier time. Abuse of process arguments can often be successfully defended. Nevertheless, prosecutors must take additional care with such cases, if for no other reason than that the evidence is inevitably more fragile and susceptible to attack. Consideration must also be given to what evidence may no longer be available and how this might impact on the fairness of the trial.

Institutional cases

77. One of the difficulties that emerged some years ago was as a result of 'trawling' for witnesses when an allegation was made against (for example) an employee in a children's home. This led to suggestions to the witnesses in court that they had manufactured their allegations in response to the police approach, in order to secure compensation.

78. If prosecutors are involved in a case involving a number of victims, particularly of allegations of institutional abuse, they need to make enquiries about what led to the witnesses coming forward.

79. The Fourth report from the Home Affairs Committee [Note: Session 2001-2002 HC 836: The Conduct of Investigations into Past Cases of Abuse in Children's Homes. www.tso.co.uk/bookshop] set out a series of 19 recommendations dealing with concerns that such practices had led to miscarriages of justice. The government response to the Report [Note: The Government Reply to The Fourth Report from the Home Affairs Committee Session 2001-2002 HC 836] was that it respected the views of the Committee, but did not share its belief in the existence of large numbers of miscarriages of justice.

80. The report indicated that the fact that the CPS rejects a significant proportion of such allegations is strong evidence that there is robust review of cases by the CPS.

81. 'Trawling' is not prohibited. The police have a statutory duty to investigate allegations of child abuse, regardless of whether they relate to contemporary or past events. Prosecutors should certainly enquire as to whether and how it has been done and consider the implications for any evidence that arises.

82. Any initial approach by the police to former residents should, so far as possible, go no further than a general invitation to provide information to the investigation team. [Note: See the ACPO Crime Committee's Senior Investigating Officers' Guidance on the Investigation of Complex Child Abuse (previously known as The Investigation of Historic Institutional Child Abuse). This is a practical step by step guide to the investigation, covering potential witness identification and evidence gathering. See also the ACPO Guidance on Investigating Child Abuse and Safeguarding Children. (both documents are being updated - due for publication spring/summer 2008)]

82. Prosecutors may find that they are having to use different sets of legislation, depending on the dates of the offences. Areas are therefore advised to retain early copies of Archbold (ie pre-2003) to assist in respect of the old-style offences. For more detail on child abuse cases see the Child Abuse chapter in the Legal Guidance.

The Court Process

84. As a basic principle, in cases involving children either as victims or as witnesses, delay should be kept to a minimum, in order to reduce, so far as is possible, the levels of stress and worry about the process that the child may feel. From an evidential point of view, the less delay there is the more likely it is that the events will be fresher in the child's memory.

85. This means identifying cases involving children as early as possible, prioritising review and preparation, observing court time limits (especially in relation to special measures applications) and managing disclosure of unused material.

Bail

86. The imposition of appropriate conditions or a remand in custody can be a highly effective way of safeguarding children. The nature of the application will depend on the circumstances of the case; where the defendant is charged with an allegation of physical or sexual abuse against a child, protection of the child will be obvious. However, there will be cases where there is a child who is not a victim or a witness, but where the behaviour of the defendant is such that there are substantial grounds for believing that the child is in danger.

87. Defence advocates sometimes argue that a contact order is in place and bail conditions should allow this to continue. There is no legal requirement for this to be so - if the court considers that unconditional bail is not appropriate, that specific conditions are required and there is a conflict with contact that cannot be resolved, the court should nevertheless be requested to impose the conditions or consider a remand in custody as an alternative.

Venue

88. In the past, the availability of special measures in the Crown Court may have been a consideration when considering venue in some either-way cases. However, there are no longer any special measures for children in need of special protection that cannot be used in the magistrates' court.

89. The decision as to venue should therefore be made on the basis of whether the court has adequate sentencing powers.

90. Many offences in the Sexual Offences Act 2003 are indictable only, where penetration is alleged. This will effectively remove choice as to venue, unless an either way offence is available which adequately reflects the seriousness of the allegation.

Transfer

91. Section 53, Criminal Justice Act 1991 enables certain either way cases involving children to be transferred direct to the Crown Court without consideration of mode of trial.

92. The procedure applies to the offences referred to in s32(2) Criminal Justice Act 1988 (sexual offences and offences involving violence or cruelty as well as offences concerning indecent images).

93. Section 32(2) was repealed by Schedule 6 Youth Justice and Criminal Evidence Act 1999 thereby inadvertently leaving the provision in s53 without a list of offences to which it applies.

94. The issue has not been resolved by subsequent legislation or caselaw. Treasury Counsel advised that the transfer provisions could still be applied as s32(2) was not an enabling provision, merely a list of offences to which the enabling provision applied.

95. The argument was tested in front of the Recorder of Manchester in 2002 who ruled that the transfer provisions in s53 were not rendered inoperable by the repeal of s32 (2). [Note: Case unreported. Case papers held by Policy Directorate, York.]

Policy

96. The transfer procedure should be used if the statutory criteria set out in section 53(1), Criminal Justice Act 1991 are met.

97. Note that the procedure applies to cases in which a child is to be called as a witness to a relevant offence. The child does not need to be the victim but must be a potential witness.

98. In some cases the defendant will face a number of charges. Some of these charges may not qualify for transfer under section 53. However, where it would be proper to join these on the same indictment with charges that do quality for transfer under section 53, it is permissible to transfer all the charges that can appear on the same indictment.

99. The decision whether to issue a notice of transfer should be taken and communicated to the court at the earliest opportunity.

Special measures

100. The question of special measures should have been considered initially as part of the charging advice.

101. Child witnesses under the age of 17 will automatically be eligible for special measures by virtue of section 16 of the Youth Justice and Criminal Evidence Act 1999. Prosecutors should refer to Achieving Best Evidence for guidance on Special Measures.

102. Timely Special Measures meetings may help to reduce worry and stress by giving an explanation of the procedures involved to the child. They can be a valuable means of establishing a professional rapport between the trial advocate and the child. Prosecutors should refer to the guidance [Note: Early Special Measures Meetings between the Police and CPS and Meetings between the Crown Prosecution Service and Vulnerable or Intimidated Witnesses Practice Guidance. Available from www.homeoffice.gov.uk or www.cps.gov.uk] on holding such meetings.

Disclosure

103. Prosecutors should apply the provisions of the Criminal Procedure and Investigations Act ("CPIA") 1996. The Disclosure Manual provides full guidance on these issues. [http://infonet.cps.gov.uk/infonet/legal/disclosure/index.htm]

104. There are no particular provisions that differ in respect of child witnesses. However, prosecutors should bear in mind the particular need to avoid delay and to ensure that disclosure issues are dealt with expeditiously, especially where third party disclosure issues are involved - for example, material held by the Social Services or by the Local Safeguarding Children Boards. [Note: See for example the CPS/ACPO/Local Authorities Protocol in the exchange of information in the investigation and prosecution of child abuse cases http://infonet.cps.gov.uk/consump/groups/policy/documents/legalguidance/pdf_000988.pdf and the general guidance contained in the Law Society publication Related Family and Criminal Proceedings; A Good Practice Guide.]

105. Requests for information that does not clearly fall to be disclosed under the CPIA must be resisted robustly.

The Trial

Introductions

106. It is particularly important that the advocate speaks to child witnesses before the trial. This is even more important when a child is to give evidence by live link and will only see the advocates on screen when giving evidence.

107. The Bar/CPS standard on communication with victims and witnesses covers all the responsibilities of the prosecuting advocate for victims and witnesses (including children) before and after court.

108. The CPS public policy statement makes a commitment to ensure that child witnesses speak to the prosecution advocate. [Note: "A representative of the Crown Prosecution Service will be at court to make sure that child witnesses speak to the prosecution advocate before the trial. The advocate will be able to answer questions about what will happen during the trial, but must not discuss the evidence."] This commitment is repeated in the children's versions Millie the Witness and Jerome: a witness in court [Note: http://www.cps.gov.uk/victims_witnesses/millie_english.pdf http://www.cps.gov.uk/victims_witnesses/jerome_english.pdf]. Child witnesses and their carers and supporters will therefore have a reasonable expectation that they will be able to do so.

Explaining procedures

109. The purpose of speaking to witnesses is to explain procedures with which they will be unfamiliar, to put them at ease and to thank them for coming to give evidence. Advocates should try to adjust their tone and language to an appropriate one for the age and ability of the child without being patronising. Straightforward non-legal language should be used and questions should be kept short and simple. (See further at Annex 5 for good practice when questioning children at court)

110. Children may be embarrassed at having to refer to parts of their bodies. Advocates should find out what words they use and are comfortable with. It is almost always inappropriate and unnecessary to have the child point to parts of their own bodies. Consider using diagrams or body maps.

111. Advocates should ensure that the witness understands the procedures and is given an opportunity to ask questions. It should not be assumed that the child has understood what has been said, even if they say they have. This is particularly so where a child has learning disabilities as such children are more likely than others to say they understand something that they do not; this may come from a desire to please or may be a learned response aimed at avoiding trouble.

112. In appropriate cases, the use of an intermediary should be considered to assist advocates to assess understanding.

Waiting time

113. It is good practice to give witnesses an indication of the time they are likely to have to wait, to minimise the waiting time at court for children and to arrange for them to be at court for the shortest possible time.

114. In some areas the Crown Court may start trials in the afternoon so that preliminaries can be dealt with in the absence of the child witness. The child can then attend the next morning and is likely to be fresher and more alert.

115. Prosecutors should consider using a warning system by pager or text message so that a child can wait until shortly before needed to give evidence, either at home or somewhere away from the court where he or she is likely to feel more relaxed.

Explain delays

116. Prosecutors should, where possible, explain the reasons for any delays. Not only is it courteous, but it will also reduce anxiety levels. That is important in itself but will also mean that the witness is more likely to give their best evidence.

Training on Special Measures

117. Advocates who deal with cases involving children should have watched the videos "A Case for Balance" and "A Case for Special Measures". These are videos produced by the NSPCC and the Bar Council that describe how Special Measures can be used to help witnesses give evidence. [Note: Available from NSPCC at http://www.nspcc.org.uk] Every CPS Area should ensure it has copies of the video.

Familiarisation visits

118. Child witnesses should have had the opportunity to have one or more visits to the court. This can be vital in ensuring that the child is not overawed on the day of the trial and that they understand the layout of the court when giving evidence from the live link room.

Memory refreshing

119. Arrangements should be made for the child witness to view the video in order to refresh their memory and to familiarise themselves with seeing their own image on screen. The time interval between showing the video for the purpose of refreshment and giving evidence should take account of the witness' needs and concentration span.

120. Ideally, the first viewing of the video recording should be on the day before trial, not on the morning of trial, so that the child does not have to view the video twice in one day.

121. A decision will need to be made about who is the person best placed to support the child witness while refreshing their memory.

122. If the video has been edited, for example to remove inadmissible material, this should be explained to the child so that they are not confused when the recording does not match their recollection of the interview.

Specialised child witness support

123. Support is available in some areas from specialised child witness support schemes and studies suggest that children benefit greatly from such support before, during and after trials. See the Research Findings 'Evaluation of young witness support: examining the impact on witnesses and the criminal justice system' published by the Ministry of Justice on their website. [Note: http://www.justice.gov.uk/docs/MoJresearchSummary2Mk2.pdf J Plotnikoff and
R Woolfson. The full research report can be found on the authors' website at http://www.lexiconlimited.co.uk/PDF%20files/YoungWitnessStudyReport.pdf]

124. Achieving Best Evidence Appendix F sets out National Standards for Young Witness Preparation.

Publicity

Children and Young Persons Act 1933

125. Section 39 limits publicity. The court can direct that no report of the proceedings shall reveal the name, address or school, or include any particulars likely to lead to the identification of any child or young person concerned in the proceedings. In deciding whether to make an order, a court will weigh up the risks to the welfare of the child against the public interest in permitting publication. Prosecutors should be prepared to make representations on the point.

126. Section 49 is available in youth court proceedings and prevents identification of any child or young person concerned in the proceedings and publication of name, address, school or any particulars likely to lead to identification. It can therefore extend to information about an adult. It is automatic unless in the public interest to dispense with the prohibition.

Other provisions

127. There are provisions in the Sexual Offences Amendment Act 1992 for a lifetime ban on publicity identifying a person in respect of certain sexual offences if it is likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed. The provision is not specific to children.

128. Section 45 Youth Justice and Criminal Evidence Act 1999 provides for hearings to be held in private and the public gallery cleared. This is a Special Measure and is subject to eligibility and must "maximise quality of evidence".

129. Section 46 Youth Justice and Criminal Evidence Act 1999 provides a restriction for life on publicity concerning vulnerable and intimidated witnesses where a reporting restriction is likely to improve the quality of evidence or co-operation of the witness. Eligibility is related to fear about being identified as a witness.

Acceptance of Pleas

Considerations

130. The decision to accept pleas to lesser or different charges must be taken in accordance with the Attorney General's guidance. [Note: 'Attorney General's Guidelines on The Acceptance of Pleas and The Prosecutor's Role in the Sentencing Exercise' (October 2004) as amended. The guidelines can be found in CPS legal guidance: trial issues and sentencing, in Archbold 2008 Appendix E in the Supplement and also at http://www.attorneygeneral.gov.uk/subpublicationsguidelines.htm]

131. Prosecutors should, whenever possible, consult child victims and their parents or carers for their views. [Note: Prosecutors' Pledge: 'Where practical, seek a victim's view or that of the family when considering the acceptability of a plea.']

Basis of plea

132. The basis of a guilty plea must not be agreed on a misleading or untrue set of facts and must take proper account of the victim's interests.

133. The final decision rests with the Crown Prosecutor [Note: The Code for Crown Prosecutors 10.1-10.5]. Prosecutors must only accept the defendant's plea if they think the court is able to pass a sentence that matches the seriousness of the offending, particularly where there are aggravating features. Prosecutors should never accept a plea just because it is convenient.

Not Guilty Pleas

Video evidence and live link

134. Section 21 Youth Justice and Criminal Evidence Act 1999 provides a presumption in favour of video evidence and live link but remains subject to a quality test for children in cases other than sex or violence and for all other measures. (See s19(2) and 21(3)(c) Youth Justice and Criminal Evidence Act 1999).

135. For children not in need of special protection, evidence must be given by live link unless s.21(4) applies, in that it would not maximise the quality of the witness's evidence.

136. For children deemed in need of special protection i.e. in violence, abduction, neglect or sex offences no quality test is required for video evidence and live link. (See s21(5) Youth Justice and Criminal Evidence Act 1999).

137. The special measure for evidence by live link does not of itself prevent the defendant seeing the witness. Its purpose is to keep the child out of the courtroom.

138. The child should be made aware that this will be the case. If this will cause the child distress (for many children the fear of being seen by the defendant is worse that seeing the defendant) then appropriate steps may need to be taken, such as requesting that the defendant's monitor be covered, or failing that, that the child gives evidence from behind screens in court. This should be avoided if at all possible, subject to the circumstances of the particular case and consultation with the child, as the purpose of the mandatory live link provision was to ensure that the child did not come into the courtroom. [Note: See R v Camberwell Green Youth Court [2005] UKHL 4 for the circumstances in which the primary rule can be disapplied]

Remote links

139. There is no reason why the link room must be in the court building where the trial is taking place. Some courts make use of link rooms elsewhere, such as at a nearby youth court. There have been examples of cases where children have given evidence from facilities near their homes, avoiding travel to or presence at the court centre and any contact with the media, defendants and their friends and supporters.

Support in the live link room

140. If evidence is to be given by live link, or if it is proposed that a supporter sit near the witness in court, it is a matter for the judge to determine who should accompany the witness.

141. The identity of this person should be discussed and agreed as part of the preparation for the trial. The officer in the case, Witness Care Unit, Victim Support worker or social worker may be able to suggest who can provide positive support for the child.

142. Achieving Best Evidence Appendix G gives guidance on the role and required attributes of a supporter. It says: "The role of the court witness supporter is, by their presence, to provide emotional support to the witness and reduce their anxiety and stress when giving evidence, thereby ensuring the witness has the opportunity to give his/her best evidence."

143. Ideally the supporter at court should be the same person who has supported the child at earlier stages of the proceedings. The supporter should be familiar with court procedure and have no knowledge of the evidence in the case.

144. Achieving Best Evidence distinguishes between this role of supporting the child and the role of ensuring that the equipment is working correctly and recommends that the supporter should be "...someone with whom the witness has a relationship of trust". It will be hard in most cases for the court usher to meet this criterion.

145. If the judge requires that a member of the court staff accompanies the child as an escort and to operate the equipment, prosecutors should request that a supporter who fits the requirements in Achieving Best Evidence is also allowed to accompany the child.

146. A practice direction issued by the Lord Chief Justice outlines who can act as a supporter in the live link room. Reference is made to "an increased degree of flexibility" being appropriate. [Note: Consolidated Criminal Practice Direction, Part III,.29 Support for Witnesses Giving Evidence By Live Television Link which can be found at www.justice.gov.uk/criminal/procrules_fin/contents/practice_direction/pd_consolidated.htm]

Vetting

147. The supporter should have received training in how to deal with the duties of accompanying a child and been vetted by Criminal Records Bureau for their suitability to work with children as they will have access to highly intimate details about the child and will be on their own with the child, potentially for long periods.

Advocacy

148. In appropriate cases, the use of witness profiling or intermediaries may be extremely helpful in ensuring that questions are asked in a way that best enables the witness to understand and respond.

How questions should be asked

149. Prosecution advocates should never behave aggressively or in a hectoring manner towards any child witness and should always challenge such behaviour on the part of defence advocates.

150. Complex, multiple questions confuse children. Advocates should use words that match the age and abilities of child witnesses and allow time for children to answer questions. See Annex 5 for further guidance.

Inappropriate questioning

151. Advocates have to challenge the evidence given by witnesses but they should not use over-harsh cross-examination with any child witness or words and phrases that children cannot easily understand.

152. If prosecution advocates think a defence advocate is being too aggressive or not giving a child time to answer, they should ask the magistrates or judge to intervene. [Note: Prosecutors' Pledge: 'Protect victims from unwarranted or irrelevant attacks on their character and may seek the court's intervention where cross-examination is considered to be inappropriate or oppressive.']

153. Prosecution advocates should ask magistrates and judges to make sure that children can easily understand the questions they are asked.

The Equal Treatment Bench Book

154. The Bench Book is a valuable source of guidance and supports this approach to cross-examination: [Note: Equal Treatment Bench Book 4.4.3 Case management at trial.]

"Judges should ensure that advocates do not attempt over-rigorous cross-examination and that they use language that is free of jargon and appropriate to the age of the child. The questions should be unambiguous and the child should be given full opportunity to answer. If a child does not understand a question, they may be tempted to give the answer that they think the questioner wants, rather than the true answer. The child may also be afraid to disagree with a powerful adult figure. Judicial vigilance is always necessary."

155. This is counter-balanced by the following paragraph:

"While it is important to cater for a child's needs and comfort, judicial efforts to that end should never be such as to amount to a suggestion that the child's evidence is likely to be more credible than that of any other witness. Consistently with that, steps to limit the distress experienced by a child must not overcome the necessity of ensuring that a party has been given a proper opportunity to challenge the evidence of the child."

Sentencing

156. It will be important for prosecutors to give early consideration to any orders that might be sought on conviction so that they can ensure they have all relevant information to hand. For example, records of chat room conversations might be helpful where a disqualification order is being sought.

157. Some Areas have draft SOPOs (Sexual Offences Prevention Orders) in template form, from which the prosecutor can, in discussion with the police, select appropriate conditions. [Note: For example CPS Nottingham and CPS Derby]

Sentencing Guidelines Council (SGC) Guidance

158. The SGC has issued a Definitive Guideline on Overarching Principles: Assaults on Children and Cruelty to a Child. [http://www.sentencing-guidelines.gov.uk/docs/Overarching%20principles%20assaults%20on%20children%20and%20cruelty%20to%20a%20child.pdf]

Offences committed in the presence or close proximity of a child

159. The fact that an offence was committed in the presence or close proximity of a child should, where appropriate, be treated as an aggravating feature of the offence and brought to the attention of the sentencing tribunal.

Disqualification

160.In cases involving children prosecutors should always consider applications for orders to prevent an adult defendant working with children in future.

161. Part II of the Criminal Justice and Court Services Act 2000 (as amended) provides the court with a power to make a disqualification order.

162. On conviction of certain (mainly sexual) offences listed in schedule 4 and imposition of a qualifying sentence or relevant order, the court must impose disqualification in the case of an adult (unless it is satisfied that he is unlikely to commit a further offence against a child) and in the case of a defendant under 18, if it is satisfied that it is likely that a further offence will be committed against a child.

The Independent Safeguarding Authority

163. The Independent Safeguarding Authority, established in January, 2008 becomes operational in Autumn 2008. The legislative framework for this authority is derived from the Safeguarding Vulnerable Groups Act 2006. The aim of this authority is to prevent unsuitable people working with vulnerable adults and children. It will reform current vetting and barring practices, replacing existing provisions such as List 99. It will make disqualification automatic upon conviction for specified offences.

Sexual Offences Orders (Part II Sexual Offences Act 2003)

164. Prosecutors should also consider the possibility of seeking orders under Sexual Offences Act 2003 to prevent further offending or harmful behaviour. ^{[Note; See Sexual Offences in the Legal Guidance http://infonet.cps.gov.uk/infonet/legal/specific_offences/sexual_offences/index.htm]} For example, Notification (formerly Registration), Sexual Offences Prevention Orders (SOPOs) Foreign Travel Orders, Risk of Sexual Harm Orders. The last two orders are civil orders that can be sought by the police. Breach of these orders is a criminal offence.

Mitigation

165. The same principles apply to children as to adults but advocates should be even more conscious of the harm and distress that can be caused to a child and his or her carers by inaccurate or unfair mitigation.

166. Advocates should challenge inaccuracies in mitigation and not wait for the judge or magistrates to intervene.

167. If in mitigation defence advocates make assertions which are unfair or run contrary to the Crown's case, prosecution advocates should object. If the defence advocate persists, the prosecution advocate should invite the court to rule on the issue, holding a Newton Hearing if there had been a guilty plea. Where relevant, the prosecution advocate should direct the court's attention to the provisions of Section 58-61 of the CPIA 1996 and notify the CPS whenever an order is made.

168. Derogatory assertions made against children in particular should be robustly challenged in accordance with the Prosecutor's Pledge [Note: 'On conviction robustly challenge defence mitigation which is derogatory to a victim's character'], Instructions for Prosecuting Advocates and legal guidance (Trial issues and sentencing).

After The Hearing

Explaining the outcome

169. Prosecutors should make sure that after the hearing children are told what has happened and that they understand. This is particularly important when the case is dropped at court or lesser pleas are accepted. The sentence the defendant has received and its effect should be explained.

Communicating the result of the case

170. If a child is not present at the hearing the Witness Care Officer or designated police contact will normally inform the child of the result of the case.

Saying 'Thank you'

171. It is very important that all witnesses who have attended court (whether they have given evidence or not) should be thanked for attending. This should be done at the outset when the prosecutor introduces him/herself to the witness but it may also be of value to the witness to receive thanks after they have given evidence. Prosecutors should therefore do this as a matter of course, regardless of the outcome of the case.

172. Where the prosecutor is not able to leave the court to speak with a witness who has just given evidence and been released, it is nevertheless good practice for the prosecutor to thank the witness in open court for attending.

173. A simple thank you may make all the difference to a child's experience and determine whether he or she will be prepared to give evidence again in future.

Annex 1

Contextual Chronology

1. Notwithstanding the relatively recent commitment to abide by the UN Convention, English law has long recognised that children need to be protected.

2. In 1889 legislation was first passed to enable the police to intervene in familial situations to protect children from ill-treatment or danger. Children were permitted to give evidence in court in 1894. In 1933 existing child protection legislation was consolidated in the Children and Young Persons Act.

3. Area Child Protection Committees ("ACPC") were developed in the 1970s to co-ordinate the work of agencies responsible for ensuring the safety of children at risk. The Children Act 1989 gave every child the right to protection from abuse and exploitation and the right to have enquiries made to safeguard their welfare.

4. As a result of the Children Act 1989, ACPCs were required to conduct an investigation to establish whether child protection procedures had been followed where a child had died or had been seriously harmed when abuse or neglect was suspected.

5. In 2003, Lord Laming published his report into the death of Victoria Climbié. He recommended wholesale changes to the system by which agencies co-ordinate their work in relation to protecting children.

6. In September 2003, the Government published a Green Paper - Every Child Matters - alongside its formal response to the Victoria Climbié inquiry report.

7. Every Child Matters has since been formalised into a cross-Government programme: 'Every Child Matters: Change for Children' and Lord Laming's proposals also became the basis of the Children Act 2004.

The Children Act 2004

8. The Children Act 2004 introduced:

• Children's Commissioners;

• a national structure for children's services;

• arrangements for creating information databases;

• Local Safeguarding Children Boards ("LSCB"); and

• the opportunity for wider access to family court documents.

9. The most important changes for CPS were the creation of LSCBs to replace the ACPCs (see LSCBs below) and increased access to family court documents (see Family proceedings below).

Joint reviews of safeguarding

10. In 2002 and 2005 joint thematic reviews were conducted by the Inspectorates to assess the effectiveness with which authorities and agencies, including the CPS, safeguarded children as part of their activities.

11. The 2005 review [Note: Safeguarding Children: The second joint Chief Inspectors' Report on Arrangements to Safeguard Children.] considered whether:

• children were safeguarded and protected;

• child welfare concerns were identified and responded to appropriately;

• safeguarding children was prioritised; and

• agencies and professionals worked together to safeguard children.

12. Safeguarding is defined by the Department for Children, Schools and Families (DCSF) in its guidance [Note: Working Together to Safeguard Children: A guide to inter-agency working to safeguard and promote the welfare of children.] as:

"[the] process of protecting children from abuse or neglect, preventing impairment of their health and development, and ensuring they are growing up in circumstances consistent with the provision of safe and effective care which is undertaken so as to enable children to have optimum life chances and enter adulthood successfully."

13. Child protection has a narrower meaning. It is defined in the same DCSF guidance as:

"activity undertaken to protect specific children who are suffering or at risk of suffering significant harm as a result of abuse or neglect." All agencies and individuals should "aim proactively to safeguard and promote the welfare of children so that the need for action to protect children from harm is reduced". [Note: Working Together to Safeguard Children: A guide to inter-agency working to safeguard and promote the welfare of children.]

14. The reports concluded that the priority given to safeguarding was not reflected firmly, coherently, or consistently enough in service planning and resource allocation.

HMCPSI Thematic Review 2005

15. In 2005 HMCPSI produced its own report on safeguarding [Note: HM Crown Prosecution Service Inspectorate: Thematic review of the role and contribution of the Crown Prosecution Service to the safeguarding of children.] which drew similar conclusions about the CPS's approach to safeguarding children. It produced a series of recommendations which included:

• the need for safeguarding to be reflected in CPS national and area plans;

• involvement with and attendance (where appropriate at LSCBs);

• a policy adviser on children with a clearly defined role;

• updating the policy and guidance in relation to child abuse and reviewing training; and

• establishing a child abuse co-ordinators' network.

Each of these recommendations has been accepted by CPS and action taken to implement them.

Annex 2

Local Safeguarding Children Boards (LSCBs)

Membership

1. Membership of the LSCB must include the Board Partners set out in section 13(3) of the Children Act (2004): District Councils; the Chief Officer of Police; the local probation board; the Youth Offending Team; Strategic Health Authorities and Primary Care Trusts; NHS Trusts and NHS Foundation Trusts; the Connexions Service; Children and Family Courts Advisory and Support Service ("CAFCASS"); the governor or director of any Secure Training Centre; and the governor or director of any prison in the local authority area which ordinarily detains children.

2. The CPS is not a statutory Board Partner, but is specifically mentioned in the list of 'other agencies and groups which the Local Safeguarding Children Boards need to link to'. The work of the LSCB (in particular serious case reviews and analysis of child deaths) may have a direct impact on our work.

Functions

3. The functions of LSCBs are set out in Regulations accompanying the Children Act 2004 (The Local Safeguarding Children Boards Regulations 2006 - SI 2006 No 90). They are:

• developing policies and procedures;

• communicating the need to safeguard and promote the welfare of children;

• monitoring and evaluating the effectiveness of the authority and the Board Partners;

• participating in planning of services for children; and

• undertaking reviews of serious cases.

4. A serious case is one where abuse or neglect is known or suspected and either the child has died or been seriously harmed (and there is cause for concern as to the way in which the authority, their Board partners, or other relevant persons have worked together to safeguard the child.)

5. From 1^st April 2008 each LSCB must also collect and analyse information about the deaths of all children normally resident in the area of the authority.

CPS involvement with Local Safeguarding Children Boards

6. CPS Areas are encouraged to engage with LSCBs as fully as possible. The main areas in which the CPS is likely to be involved are Serious Case Reviews.

7. There may be issues of practicality relating to the number of Boards in an area, frequency of meetings, and the degree to which the CPS can contribute to the substance of the work. Networking opportunities for Area child abuse Co-ordinators or specialists can be valuable. Areas should therefore consider how they can be involved within existing resources.

8. Lincolnshire CPS chose to participate in the Section 11 Standards Assessment conducted by Lincolnshire Safeguarding Children Board. The findings were extremely positive including "an excellent evidence pack" and "The CPS has a slightly different angle to frontline children work to other agencies, but throughout the case files safeguarding considerations stood out strongly".

9. Guidance on LSCBs issued by DCSF as part of 'Working Together to Safeguard Children 2006' contains a number of references to occasions on which the CPS should be consulted.

10. The full guidance on CPS involvement with LSCBs was issued in March 2006 and can be found in Policy Bulletin 25/2006

Annex 3

Witness Care Unit Child Witness Checklist

This checklist is not exhaustive. Nor will each bullet point be appropriate for every child. At all times it must be remembered that there is a need for a tailored needs assessment for each witness as an individual.

Date/Details

• Have the MG2/6/11 forms been fully completed?
  • Date/Details:

• How old is the child?
  • Date/Details:

• Will they turn 17 during the course of the proceedings?
  • Date/Details:

• Have the wishes of the child, parent(s), carer(s) been taken into account, about going to court?
  • Date/Details:

• Does the witness know that any video of the evidence will be seen by the defendant?
  • Date/Details:

• Have they been told that the defendant will be able to see them on live link during the trial?
  • Date/Details:

• Does the witness have a problem with a live link for their cross-examination?
  • Date/Details:

• Who will go through the 'Young Witness' information pack with the child?
  • Date/Details:

• Has a pre-court familiarisation visit been organised?
  • Date/Details:

• Do they want/need a supporter?
  • Date/Details:

• Are any other special measures appropriate? Especially, in the Crown Court, their views on court dress.
  • Date/Details:

• Are any other measures required?
  • Date/Details:

• Is a special measures meeting necessary? Would it be appropriate to meet the witness before the hearing date?
  • Date/Details:

• Has the witness any communication or physical difficulties?
  • Date/Details:

• Any special dietary requirements?
  • Date/Details:

• Any medical needs?
  • Date/Details:

• What breaks will be required during the giving of their evidence? (What is their attention span?)
  • Date/Details:

• How will the child communicate to the judge that he/she requires a break?
  • Date/Details:

• Is there a need for a specific supporter to be named in the Special Measures Application to be in the Live Link room?
  • Date/Details:

• Are they having, or do they require counselling?
  • Date/Details:

• If there is a specific child witness support agency in the Area, has it been notified?
  • Date/Details:

• Has Victim Support been contacted?
  • Date/Details:

• Is the Witness Service aware of the child's needs at court/know of any Special Measures Direction?
  • Date/Details:

• Does the child need separate waiting facilities or to wait at home?
  • Date/Details:

• Has the child's needs been properly taken into account in the scheduling and standby arrangements for trial?
  • Date/Details:

• Is the child to be given opportunity to refresh their memory from their video/written statement? (N.B. any edited video)?
  • Date/Details:

• Does the child wish to meet the Judge and Counsel? (Magistrates/Advocates)?
  • Date/Details:

Witness Care Unit Child Witness Checklist - Explanatory Note

1. The UN Convention on the Rights of the Child emphasises the need for adults and organisations, when making decisions that affect children, to consider their best interests and their views. Reports to the Crown Prosecution Service should always include clear information about the wishes of the child, and his or her parents or carers, about going to court. The Crown Prosecution Service may in any event need to seek additional information from the investigating team.

2. The attached children's checklist is for use by witness care officers dealing with any case involving child witnesses.

3. It is an aide-memoire, is not exhaustive and can be added to and/or adapted by Units. It is meant to be short and to the point and it may be useful to laminate and/or attach to case files to ensure that children are receiving the support they need.

4. Most of the items on the checklist deal with issues that have existed for some time but do not appear to be implemented in many individual cases.

5. Reference should be made to the latest version of the "Achieving Best Evidence" publication, which was launched on 31 October 2007. The guidance describes good practice in interviewing witnesses to enable them to give their best evidence in criminal proceedings and has been updated to include information relating to bad character, hearsay, the Code of Practice for Victims of Crime and the witness care units.

6. It should also be borne in mind that in the Crown Court, the advocate at the Plea & Case Management Hearing (PCMH) requires sufficient information to make any appropriate application for special measures.

7. The items on the checklist should be self-explanatory (taking into account the above), or clear from the relevant WCU training modules. In the event of any queries, first recourse should be to the WCU Manager or the CPS SUFJ Champion and then the Victim and Witness Care Delivery Unit (vandw.care@cps.gsi.gov.uk) if necessary.

Date: 6 November 2007

Annex 4

THIS CHECKLIST HIGHLIGHTS ISSUES COMMONLY FOUND IN RAPE CASES. IT IS ALSO A USEFUL AIDE MEMOIRE FOR OTHER CASES

Prosecution Team Working Together To Build Better Cases

RAPE SPECIALIST (File allocation)

FLAGGING ON CMS (rape, DV, VIW, identifiable victim, media interest)

MEDIA INTEREST REFERRAL

EVIDENCE (quality, strengths and weaknesses, how can we case build?)

• Visually Recorded Interview (confirm viewed/comment on quality, admissibility, transcribing and editing)

• Consent/Capacity issues

• Evidential/ Conclusive presumptions

• Medical evidence (forensic physician should attend conference and give live evidence unless there are particular/ considered reasons)

• DNA and other scientific evidence (consult with forensic scientist)

• Fingerprints

• CCTV

• Phone analysis / records / texts / images / cell site / computer records

• Birth certificates

• s.41 YJCEA 1999 applications (required to be in writing)

• Bad character of the accused (previous convictions and complaints including foreign)

• Hearsay

• Consideration of any defence put forward

• Possible collusion between witnesses

• Potential abuse of process

BAIL / CUSTODY ISSUES

THRESHOLD TEST / FULL CODE TEST (evidential and public interest)

CHARGES / INDICTMENT

• Old / new legislation

• Which behaviour is covered by which charge

• Adequate sentencing powers

• Acceptability of pleas (taking account of views expressed by the victim)

• DPP consent

UNUSED MATERIAL

• MG6C, D, and E

• Previous complaints by the victim

• Witnesses' previous convictions

• Tendered witnesses

• Criminal Injuries Compensation Authority claims

THIRD PARTY MATERIAL (consents or court order required for disclosure)

Social Services, Educational, Medical, Therapy, Counselling, Adult and Child Disability Services

• Care proceedings / family / disciplinary proceedings

• SARC records

• ISVA records

NWNJ

• Special measures for vulnerable / intimidated witnesses (including intermediaries)

• Early special measures meeting

• Meeting with witness

• Other measures (breaks, medication, secure entrance)

• Witness summons / reluctant witness hearing

APPLICATIONS

• Hearsay

• Bad Character

• Special Measures

DECISION TO NFA OR TO PROCEED ON LESSER CHARGE (Second rape specialist to be consulted and their opinion recorded)

DCV (is a letter / meeting required?)

SENTENCING

• Plea and Sentencing document (in accordance with AG's guidelines)

• Dangerousness provisions, extended sentences, life / indeterminate sentences

• Victim personal statement

ANCILLARY ORDERS (SOPO, disqualification)

TRIAL ADVOCATE (accredited counsel, HCA rape specialist advocate)

INSTRUCTIONS TO COUNSEL

• Analysis of the evidence

• Confirm visually recorded interview viewed, comment on quality, admissibility, transcribing and editing

• Which behaviour is covered by which charge

• Acceptability of pleas (taking account of views expressed by the victim)

• Reminder to counsel to introduce themselves and provide explanations/ updates to witnesses

• Reminder that offensive and irrelevant cross-examination should be challenged

• Reminder to tackle inappropriate cross-examination about previous sexual history

• Reminder to consider sentencing and ancillary orders including SOPOs and compensation

• Information on third party material with instructions that disclosure should only be made in accordance with the statutory tests

• Reminder to consider seeking an adverse inference where S. 11 CPIA allows

• Request a written report on any case that results in an acquittal

CONFERENCE WITH COUNSEL (to include OIC and forensic physician)

PROACTIVE CASE MANAGEMENT (E.g. Action dates, pre-trial checks and trial readiness)

OUTSTANDING ISSUES

N.B. THIS LIST HIGHLIGHTS ISSUES COMMONLY FOUND IN RAPE CASES BUT MAY NOT BE EXHAUSTIVE. PROSECUTORS MUST CONSIDER ALL ISSUES RELEVANT TO THE CASE.

Annex 5

Research-based guidance: Good practice when questioning children at court

In recent E & W studies, 50% of young witnesses (all ages) reported not understanding words or questions at court.

This summary draws on Anne Graffam Walker, Ph.D. 'Handbook On Questioning Children - A Linguistic Perspective' American Bar Association Center on Children and the Law (available from www.abanet.org, the Center's "most-acclaimed and most widely used book"). Walker (a forensic linguist) sets out general principles based on research but emphasises the need to take account of the individual child's communication abilities, particularly those who have a developmental disability, have been maltreated or who come from a different culture.

See also written guidance accompanying the NSPCC video demonstrating good practice when children are witnesses 'A Case for Balance' (1997); guidance on questioning at paras. 2.153-178; and on intermediaries paras. 6.83-90 in 'Achieving Best Evidence in Criminal Proceedings' (2007). Bear in mind that a report from a registered intermediary assesses the child's communication abilities and will advise whether intermediary use at trial should be considered.

Use simple, common words and phrases Witnesses as young as four have been asked questions that include allegation, exaggerate, deny, insert, was that not true, I put it to you.

Repeat names and places often ("What did Jim say?" not "What did he say?" "Were there a lot of people in the kitchen?" not "Were there a lot of people there?") Using the child's own name frequently can help keep younger children focused.

Ask one short question (one idea) at a time Children must remember the whole question in order to process it. Avoid 'front-loading' questions: "Do you recall talking to her on the Sunday after they found - discovered - something had happened to Doug and asking her, 'Do you know Mark?' and then saying, 'That is who did it'? Do you remember telling her that?" - question asked of a 5 year-old at a murder trial.

Follow a structured approach, signposting the subject Signposting prepares children to respond by letting them know the subject of the question e.g. "Now I'm going to ask you about X". Tell young children clearly that the subject is about to be changed. Explaining why a question is repeated may help allay the child's concern that the first answer to a repeated question was wrong.

Avoid negatives Phrase questions positively whenever possible. Questions containing negatives ("Didn't he hurt you?") or negative forms (e.g. "incorrect") are hard to process and therefore not reliable tools for getting accurate information from children. They are more likely to be misinterpreted and answers are far less likely to be accurate. Children's strategies for processing negatives are still not in place at the age of 9.

Avoid "I suggest to you that...", "I believe you told us...", "Isn't it a fact that..." Such words are used to introduce a statement, using language that asserts its status as fact. These questions are wholly inappropriate for children. When an adult in a powerful position formally suggests that something is a fact, it becomes extremely difficult for children - even 11- and 12-year olds - to know how to disagree if necessary, and to maintain verbally what they believe to be true.

Avoid 'tag' questions A tag question makes a statement then adds a short question which invites corroboration of its truth, for instance "you stayed at home that day, didn't you?". They are one of the most powerfully suggestive forms of speech. They are also linguistically complex, requiring seven stages of reasoning in order to answer correctly. Children often answer "Yes" to a tag question in which the tag is negative. "Yes" is a valued answer which indicates cooperation; it is often perceived to be the answer that the adult wants. Tag questions of all kinds should be avoided with children. (A four-year old was asked at trial "No man licked your nunny, did he?")

Avoid "Do you remember..." questions They entail being able to follow, process and recall all of the question; judge the questioner's intention; and modify the question as necessary in order to reply truthfully. Even older school-age children are not good at this. Answers are often ambiguous.

Avoid restricted choice questions These create opportunities for error, particularly for children under 8 or 9. ("When he hit you, did you shout or cry?") Where they are unavoidable, one approach is to give no more than three options, with the last one always open-ended e.g. "Was it red, or was it blue - or was it some other colour?"

Speak slowly and give children enough time to answer Children need more time to process questions than adults: for 5 to 7 year-olds, almost twice as much. Pausing between phrases and sentences and after questions gives children the processing time they need.

Don't rely on children (even adolescents) to say if they don't understand It is good practice to begin by asking children to say when they do not understand a question. However, they often try to answer questions they do not understand fully. Reasons why they may fail to say they do not understand include reluctance, because the questioner is an authority figure, and because they think that they understand the question when in fact they do not.

Check directly on the child's understanding Asking "Do you understand?" is not sufficient to avoid confusion. The most critical error that we make in questioning children is to assume that they use, process, and understand language in the same way as adults. (Q. Who's Tim? A. My advocate. Q. What's an advocate? A. Someone who prays and has sex with you.) Children often use words before they really understand them. Problem words include before/ after; in front of/ below/ ahead of/ behind; always/ never; different/ same; and more/ less. Ways to clarify meaning and reduce inconsistencies include "Tell me more about that" and "What do you mean when you say...".

Be aware that concept words are particularly problematic Their use does not mean they are understood, e.g. ability to count does not mean the child understands numbers. "How many times" questions are inappropriate for young children: the response may change each time the question is asked. Unbelievable responses can be a metaphor for "lots and lots of times" or a recognition that a question with a number slot needs a number to fill it. However, even very young children can tie what happened to events such as holidays and familiar knowledge such as what was on TV.

Be alert to literal interpretation by younger children and those with autistic spectrum disorders Literal interpretation may be true even for some older children.

Q. Did you go to the man's house? A. No. Q. Did you go to his flat? Yes.

Q. Did you have your clothes on? A. No. Q. Did you have your pyjamas on? A. Yes.

Q. Did he touch you? A. No. He washed me on my private, everywhere ('touch' may well be understood only in a narrow sense).

Avoid idioms, e.g. "Can you shed light on this?" An autistic child aged 12 was asked a question at court that began "I'm trying to paint a picture of what happened to you...".

Finally

Inconsistency in children's statements is a normal part of the language acquisition process.

Many teenagers (particularly the under-educated/parented, unattached and developmentally delayed) remain stuck in the 7-10-year old stage. Teenagers are at greater risk of miscommunication because of adults' higher expectation of their ability to understand court language.

Children who are upset may function at a lower level.

1% of people have speech, language or communication difficulties affecting every-day functioning.

10% of children aged five to 16 have a clinically recognisable mental disorder.

Prepared by Joyce Plotnikoff & Richard Woolfson, Lexicon Ltd, for CBA & NSPCC (2008)