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Safeguarding Children as Victims and Witnesses

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Safeguarding Children:

Safeguarding is defined by the Department for Children, Schools and Families (DCSF) in its guidance ('Working Together') 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 that enables children to have optimum life chances and enter adulthood successfully.''

Introduction

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''

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

The purpose of this document 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 is also available in relation to child abuse cases.

It is not the purpose of the guidance to reiterate information 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.

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Prosecutors and Safeguarding

Prosecutors have contact with children as victims or witnesses and also as defendants, indirectly when making charging decisions and file reviews and more directly when prosecuting cases in court.

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

This guidance details the 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.

The 2008 HMCPSI report ''A second Review of the Role and Contribution of the Crown of the Crown Prosecution Service to the Safeguarding of 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; and
  • high standards of advice, decision-making (as to prosecution or diversion), case preparation and advocacy in relation to child offenders

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.

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

One of the very clear messages of the Every Child Matters report (presented to Parliament in 2003), the Children Act 2004 and 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. Where independence and objectivity are not compromised, prosecutors should positively engage with other authorities and agencies to safeguard children. One formal forum where such engagement can take place is the Local Safeguarding Children Board (see further at Annex 1 below).

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Cases involving children

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.

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.

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.

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.

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. 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.

The Witness Care Unit Young Witness Checklist states that a tailored needs assessment must be prepared for each witness as an individual. See Annex 2.

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Reviewing cases where the child is a victim or a witness

Achieving Best Evidence (ABE)

'Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses, and guidance on using special measures' (ABE) provides detailed recommended procedure for interviewing child witnesses. The Guidance covers practical issues around initial contact with the witness, consent, when the child can be further interviewed and issues to be considered for very young children, children with disabilities or children who are psychologically disturbed.

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.

Viewing the video evidence

The whole recording must be viewed for the purposes of review and before the tape is released to the defence or a third party. The purpose of the viewing includes:

  • to be satisfied that the video is of sufficiently high quality - both in technical and evidential terms - and that all necessary areas have been covered so that the recording can be used as evidence in chief
  • to ensure the accuracy of the record of interview (the ROVI) or transcript
  • to identify any inconsistency between what the child said on record and what the child or other witnesses said elsewhere
  • to be satisfied of the child's ability to understand and communicate and function as a competent witness, with or without the benefit of any special measures
  • to identify any potential areas of cross-examination the defence may later explore. For example, has the child been prompted or led in any way in the interview? Has the interviewer complied with Achieving Best Evidence? Was anyone present in the interview room, who should not have been?
  • to identify sensitive or irrelevant material which may need to be edited out before releasing the tape.

It is particularly important to edit irrelevant material from long, rambling interviews. Neither the child witnesses, nor juries are able to concentrate on the key issues, when required to view such records of interviews, some of which last several hours therefore obliging the court to give the child witnesses and juries regular breaks.

Having reviewed the video evidence and assessed the quality of the evidence and of the recording, prosecutors must keep proper records of their assessments and decisions and give any relevant feed back to the police.

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Code for Crown Prosecutors

Evidential stage

In relation to the evidential stage, there may be situations in which the age of the child may 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.

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 as set out in section 53of the Youth Justice and Criminal Evidence Act 1999. 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 a Registered Intermediary.

In R v Barker [2010] EWCA Crim 4 it was stated that it was not open to the judge to create or impose some additional but non-statutory criteria based on the approach of earlier generations to the evidence of small children. In particular, although the chronological age of the child will inevitably help to inform the judicial decision about competency, in the end, the decision is one about the individual child and his or her competence to give evidence in the trial in question.

Public interest stage

So far as the Public Interest stage 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 4.16g). This is, of course, subject to any factors that may make a prosecution less likely to be needed (Code 4.17).

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.

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 4.16n), the victim of the offence was in a vulnerable situation and the suspect took advantage of this (Code 4.16j) or there is a marked difference between the ages or levels of understanding of the defendant and victim (Code 4.16l and m).

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 8.2). In such circumstances it will be necessary to balance the competing public interest factors before reaching a decision on prosecution.

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 4.17g). 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.

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.

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.

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.

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.

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.

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.

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Domestic violence

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.

Further information can be found in the Domestic Violence Legal Guidance.

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Child prostitution

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. Further information can be found in the Legal Guidance on Prostitution and the Exploitation of Prostitution.

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Trafficked children

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. When reviewing any such cases prosecutors must be alert to the possibility the child may be the victim of trafficking. For further guidance refer to the Legal Guidance on Human Trafficking and Smuggling.

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Pre-trial therapy

It is a fundamental aspect of CPS policy and the multi-agency practice guidance on pre-trial therapy that the best interests of the child are paramount when deciding whether, when and in what form, therapeutic help is given. Further details can be found in the multi-agency practice guidance entitled 'Provision of Therapy for Child Witnesses Prior to a Criminal Trial'.

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

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.

If the victim is a very young child and both parents are defendants then no letter should be sent. It would normally be inappropriate to write to a child under twelve. If the victim is a child of twelve or over it may be appropriate to write to him or her as well as the parent/carer. If the victim is a child looked after by the local authority, the letter should be sent to the guardian and, if sufficiently old, the child.

However, it is important to note that the parents or carers do not have an automatic entitlement to confidential information relating to their child if the child is deemed capable of sufficient understanding (Gillick).

An assessment should be made of the age and understanding of the child. Prosecutors should refer to the file to ascertain the level of parental/carer involvement.

Prosecutors should refer to Direct Communication with Victims guidance for further detail.

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Family Proceedings

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.

The Family Procedure Rules 2010

The Family Procedure Rules 2010 (FPR), which came into force 6 April 2011, provide a single set of rules, supplemented by Practice Directions, for proceedings in the magistrates' courts, county court and High Court. The FDR replaces exiting rules of court for family proceedings, including the Family Proceedings Rules 1991.

Practice Direction 36A sets out how the FPR is to apply to family proceedings that date from before 6 April 2011. The general intention is to apply the FPR to existing proceedings as far as practicable, and the old rules only where it is not.

The FPR document itself does not contain an index, but an html FPR index is available.

Of particular relevance to prosecutors are the following:

  • Part 5 - provides for the forms which are to be used in family proceedings. See Form C2 in particular, which is an application for an order or directions in existing proceedings.
  • Part 10 - deals with applications under Part 4 of the Family Law Act 1996 ('FLA'); domestic violence.
  • Part 11 - deals with applications under Part 4A of the FLA; forced marriage.
  • Part 12 - children (see further below).
  • Practice Direction 12F - International Child Abduction.
  • Parts 18 and 19 - relate to the procedure for other applications in proceedings which, for example, will be used for applications for the court's permission to bring proceedings.
  • Part 21 - contains miscellaneous rules about disclosure and inspection of documents.
  • Parts 22 to 24 - contain rules about evidence.
  • Part 25 - deals with experts and assessors.
  • Part 27 - relates to hearings and directions appointments and includes provision relating to the giving of reasons in a magistrates' court.
  • Part 28 - relates to costs across all three levels of court.
  • Part 29 - contains miscellaneous provisions including allowing for the protection of personal details in proceedings and provision for Human Rights Act 1998 questions being raised in family proceedings.
  • Part 36 - transitional provisions.

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Children

Matters relating specifically to children (public and private children law) are set out in Part 12 of the FPR and should be considered in conjunction with the general matters set out in the FPR, for example the overriding objective and the rules on evidence and experts etc.

Public Law Proceedings Guide to Case Management - Practice Direction 12A

This is a key piece of guidance for prosecutors. It sets out the Public Law Proceedings Guide to Case Management: April 2010, incorporating the Public Law Outline 2010 (PLO). Where there are parallel criminal and care proceedings, it is vital that prosecutors understand the timetables and processes of the family court.

The Practice Direction sets out the stages (Issue and First Appointment; Advocates' Meeting and Case Management Conference; Advocates' Meeting and Issues Resolution Meeting; Final Hearing) and the timescales involved. The PLO forms to be used include information of relevance to prosecutors, such as the Local Authority Case Summary, Draft Case Management Order, Timetable for the child/ren, Standard Directions, disclosure etc.

PD12A states at paragraph 3.9: 'Where there are parallel care proceedings and criminal proceedings against a person connected with the child for a serious offence against the child, linked directions hearings should where practicable take place as the case progresses. The timing of the proceedings in a linked care and criminal case should appear in the Timetable for the Child.'

PLO Form 4 makes specific reference to parallel criminal proceedings.

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The Timetable for the Child

The Timetable for the Child includes not only legal steps but also social, care, health and education steps. Due regard is paid to the Timetable to ensure that the court remains child-focussed throughout the progress of the proceedings and that any procedural steps proposed under the PLO are considered in the context of significant events in the child's life.

The expectations are that the proceedings should be finally determined within the timetable fixed by the court in accordance with the Timetable for the Child - the timescales in the PLO being adhered to and being taken as the maximum permissible time for the taking of the step referred to in the Outline, unless the Timetable for the Child demands otherwise.

Prosecutors should ensure that they are aware of the Timetable. They will need to provide information regarding criminal proceedings dates/events and, equally, they should take the contents of the Timetable into account when contributing to their own case management procedures in the criminal proceedings. For example, where a trial appears likely it should not simply be a matter of witness availability, but information should be obtained concerning significant steps in the child's life that are likely to take place during the proceedings (such as exams, revision, special events, family court proceedings etc) and efforts should be made to fix the trial date accordingly.

Such an approach should help both the family court and the criminal court to work in synchronisation in the interests of justice and the welfare of the child.

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Other matters of relevance to prosecutors

Case Management Orders will include orders relating to the disclosure of documents into the proceedings held by third parties, including medical records, police records and the disclosure of documents and information relating to the proceedings to non-parties.

The court may give directions without a hearing.

Where facilities are available to the court and the parties, the court will consider making full use of technology including electronic information exchange and video or telephone conferencing.

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Communication of Information - Practice Direction 12G

Practice Direction 12G sets out what information can be communicated to third parties - including the police and CPS. The tables from the old rules (Part X, Rules 11.2 - 11.9 of the Family Proceedings [Amendment] [No. 2] Rules 2009, which include the Family Proceedings Rules 1991) are restated.

In essence, 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 judgement 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.'

Apart from the judgement, 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/medical expert evidence etc. Disclosure and use of such documents is restricted.

The Rules 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 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 section 46 of the Children Act 1989 (removal and accommodation of children in an emergency) or is serving in a child protection unit or a paedophile unit of a police force, or a professional person attending a child protection conference or review in relation to a child who is the subject of proceedings to which the information relates.

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 the information contained within them. However, the police officer or professional 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.

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.

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.

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. (Practical guidance on making such applications is being sought from the Family Criminal Interface Committee)

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.

The case of A Borough Council v D and others 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.

In relation to documents that have not been filed with the family court, the national ADSS/CPS/ACPO protocol makes provision for applications by the police/CPS for access to the local authority's files.

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Protection against self-incrimination

Section 98(1) of the Children Act 1989 provides that in proceedings under part IV or V of the Act (e.g. 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.

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.

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.

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.

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Disclosure of criminal material to the family courts

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.

An ACPO Police/Family Disclosure Protocol 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.

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.

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.

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?

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.

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Non-Recent and Institutional Cases

Non-Recent cases

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.

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.

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.

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Institutional cases

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.

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.

The Fourth report from the Home Affairs Committee (The Conduct of Investigations into Past Cases of Abuse in Children's Homes; session 2001-2002) 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 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.

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.

'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. 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. (See ACPO Guidance on Investigating Child Abuse and Safeguarding Children 2009. http://www.npia.police.uk/en/14532.htm)

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 (i.e. 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.

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The court process

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.

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.

In particular, where the child witness is very young, cases should be expedited. The Court of Appeal in R v Malicki [2009] EWCA Crim 365 said  ''cases involving such young complainants must be fast-tracked. The proper administration of justice requires it. It is the responsibility of all concerned -  prosecution and defence - to bring the need for expedition to the attention of the court (and we refer both to the magistrates' court and to the Crown Court because expedition is needed at all stages of the procedure) and it is the responsibility of the court to ensure that such expedition is provided.''

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Bail

The imposition of appropriate conditions or a remand in custody where applicable 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.

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.

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Transfer

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.

The procedure applies to the offences referred to in s.32(2) Criminal Justice Act 1988 (sexual offences and offences involving violence or cruelty as well as offences concerning indecent images).

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.

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.

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).

Policy

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

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.

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.

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

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Special measures

The requirement for special measures should have been considered initially as part of the charging advice.

Child witnesses under the age of 18 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 in Criminal Proceedings: Guidance on interviewing victims and witnesses, and guidance on using special measures' and Legal Guidance on special measures for more information.

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 on Special measures meetings between the CPS and witnesses.

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Disclosure 

Prosecutors should apply the provisions of the Criminal Procedure and Investigations Act (CPIA) 1996. The Disclosure Manual provides full guidance on these issues.

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.

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

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The trial

Introductions

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. Core Quality Standard 6 sets out the prosecutor's responsibilities for witness care when conducting trials.

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.

The CPS public policy statement makes a commitment to ensure that child witnesses speak to the prosecution advocate. This commitment is repeated in the children's versions Millie the Witness and Jerome: a witness in court. Child witnesses and their carers and supporters will therefore have a reasonable expectation that they will be able to do so.

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Explaining procedures

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.

Prosecutors should anticipate cases in which a victim of a sexual offence may be asked to demonstrate intimate touching on their body. It is almost always inappropriate and unnecessary to have the child point to parts of their own bodies. Agreement should be reached with the defence and the court to use a body outline or alternative method for eliciting this information. Children may also be embarrassed at having to refer to parts of their bodies; advocates should find out what words they use and are comfortable with.

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.

In appropriate cases, the use of a Registered Intermediary should be considered to assist advocates to assess understanding.

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Waiting time

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.

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.

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.

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Explaining delays

Prosecutors should, where possible, explain the reasons for any delays. If they cannot do so in person because they cannot leave the courtroom they should ensure that an assistant or court official does so (Core Quality Standard 6.4[b]). 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.

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Training on Special Measures

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. Every CPS Area should ensure it has copies of the video.

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Familiarisation visits

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.

As part of the detailed needs assessment carried out by the Witness Care Unit a child witness (or their parent/carer depending upon the age of the child) will be asked whether the child would like a court familiarisation visit. If they indicate that they would like a visit the Witness Care Unit will pass this information on to the Witness Service. The Witness Service will contact the child witness (or parent/carer) directly to arrange the visit.

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Memory refreshing

It is CPS policy that all witnesses have an opportunity to refresh their memory before giving evidence in court. Witnesses are entitled to see a copy of their statement before the trial. With regards to viewing video evidence in chief, how, when and where this is done should be decided upon a case by case basis. The overriding aim is to enable the witness to give their best evidence in court - in particular when being cross-examined.

Viewing the video recorded interview ahead of the trial, in more informal circumstances, may help the child to familiarise themselves with seeing their own image on the screen and makes it more likely that they will concentrate on the task of giving evidence.

Minimising delay between the memory refreshing stage and the trial should be balanced against the ability of the child to concentrate through two viewings on the same day. Many child witnesses may prefer to watch the video at least a day before the trial. Some find it convenient to watch the video when they attend court for the orientation visit; others prefer to keep the two tasks separate, as time may be limited for the orientation visit and there is already a great deal of information for them to take in.

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.

Prosecutors should make timely enquiries as to how and when the child witness will refresh their memory so as to be sure that it will be done.

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

In particularly sensitive cases, for example extremely young witnesses or disabled witnesses with severe communication problems, it has proved beneficial to visually record the witnesses refreshing their memories of their ABEs. However, it is not expected that such a procedure should be routinely used for all witnesses.

Watching again whilst video evidence in chief is played in court - clearly there are advantages and disadvantages in doing this, depending upon the child involved and the length and nature of the ABE. The ultimate aim must be to enable the child to give their best evidence. The child should come to the cross-examination feeling as fresh and as ready as possible, not exhausted, bored or avoidably distressed. But they should not have to face cross-examination 'cold' either. Each case must be decided upon its own merits, taking into account the needs of the individual child.

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Specialised child witness support

Support is available in some areas from specialised child witness support schemes. Studies suggest that children benefit greatly from such support before, during and after trials. Achieving Best Evidence Appendix K sets out National Standards for Young Witness Preparation.

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Publicity

Children and Young Persons Act 1933

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.

Section 49 applies to youth court proceedings and automatically imposes extensive reporting restrictions. The restrictions prevent the identification of any child or young person concerned in the proceedings and publication of the 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.

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Other provisions

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.

Section 25 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'.

The measure is only available in cases involving a sexual offence or when the court is persuaded that someone has tried to intimidate, or is likely to intimidate, the witness. At least one member of the press will be permitted to remain in court if one has been nominated by the press.

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Not Guilty pleas

Standby arrangements

Timely consideration should be given to the use of standby arrangements or remote links, particularly at courts where the waiting facilities or security arrangements are not satisfactory.

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Video evidence and live link

Section 24 of the Youth Justice and Criminal Evidence Act 1999 allows for an eligible witness to give evidence via a live link. Detailed guidance on the legislation and procedure can be found in the Legal Guidance on Special Measures.

The special measure for evidence by live link does not of itself prevent the defendant from seeing the witness. Its purpose is to keep the child out of the courtroom. The child should be made aware that the defendant (and others in the courtroom) will be able to see him or her. If this will cause the child distress (for many children the fear of being seen by the defendant is worse than that of 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.

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Support in the live link room

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. Section 102 of the Coroners and Justice Act 2009 amends section 24 of the 1999 Act so that when the court directs a live link special measure it can also direct that a person specified by the court (witness supporter) can accompany the witness when the witness is giving evidence by live link.

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.

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.''

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.

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.

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.

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Remote links

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.

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Vetting

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.

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Advocacy

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.

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How questions should be asked

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.

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.  

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The Equal Treatment Bench Book

The Bench Book is a valuable source of guidance and supports this approach to cross-examination:
''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.''

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.''

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Sentencing

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.

Full guidance can be found in the Sentencing and Ancillary Orders Applications section of the Legal Guidance.

Sentencing Guidelines Council (SGC) Guidance

The SGC has issued a Definitive Guideline on Overarching Principles: Assaults on Children and Cruelty to a Child.

Offences committed in the presence or close proximity of a child

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

In cases involving children prosecutors should always consider applications for orders to prevent an adult defendant working with children in future. See Guidance on Prosecuting Child Abuse Cases.

Mitigation

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.

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

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 has been a guilty plea. Where relevant, the prosecution advocate should direct the court's attention to the provisions of Section 58-61 of the Criminal Procedure and Investigations Act1996.

Derogatory assertions made against children in particular should be robustly challenged in accordance with the Prosecutor's Pledge, Core Quality Standards and Instructions for Prosecuting Advocates.

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After the hearing

Explaining the outcome

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 also be explained.

Communicating the result of the case

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'

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.

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.

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.

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Annex 1

Local Safeguarding Children Boards (LSCBs)

Membership

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.

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

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.

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.)

From 1st 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

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.

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.


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.

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

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Annex 2

Witness Care Unit - Young Witness Checklist

This checklist in intended to give witness care officers some background information on policies and procedures that influence their role and function in supporting child victims and witnesses. It is not intended to be comprehensive but an easy quick reference guide. In Section Two, and in response to some of the concerns raised in child witness reviews, there are some questions which are advocated as a guide to ensure effective consideration has been given to some specific issues that are particularly relevant to child witnesses.

Section One - Background information about young witnesses

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. 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 18th birthday.

3. 'Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and using Special Measures' ('ABE') describes good practice in interviewing witnesses to enable them to give their best evidence in criminal proceedings. The guidance includes information relation to the Code of Practice for Victims of Crime and the Witness Care Units. Witness Care Officers (WCOs) may find it useful to refer to the relevant sections of ABE.

4. 'Working Together to Safeguard Children' sets out how individuals and organisations should work together to safeguard and promote the welfare of children. There is a clear role for the Police and the CPS in terms of Safeguarding Children.

5. The Police have statutory duties to safeguard and promote the welfare of children under s11 of the Children Act 2004.

6. 'The Code of Practice for Victims of Crime' (the Victims' Code) sets out the services victims can expect to receive from the criminal justice system. The Code places specific obligations on all CJS agencies. WCOs should be familiar with the content of the Victims' Code and, in particular, the obligations placed on the WCUs, with particular emphasis on the enhanced services child victims are entitled to by reason of their age.

7. 'Children and Young People' is the public statement of the CPS commitment to work together with others to safeguard children. It brings together the principles of the Code of Practice of Victims of Crime and the Prosecutors Pledge and applies them to children. The statement is available from the CPS website.

8.' Safeguarding Children: Guidance on children as victims and witnesses' provides detailed practical and legal guidance about cases involving children and young people as victims and witnesses. The guidance is available from the CPS website.

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Section Two - Explanatory note about the Witness Care Unit Young Witness Checklist

9. The attached checklist is for use by WCOs dealing with any case involving young witnesses. The use of the checklist will contribute to ensuring that the principles of the above-mentioned practices are applied to cases involving young witnesses.

10. The checklist DOES NOT replace the detailed needs assessment. The use of the checklist will contribute to the completion of the detailed needs assessment.

11. The checklist is an aide-memoire. The checklist is not exhaustive and can be added to and/or adapted by the Witness Care Units (WCUs). It is meant to be short and to the point. WCOs may find it useful to laminate or attach a copy of the checklist to case files.

12. The checklist includes prompts about practices to assist young witnesses to give evidence. Research about the experiences of young witnesses giving evidence has shown that practices are not used where they should be.

13. The checklist is self-explanatory but reference should also be made to the relevant WCU training modules.

14. Queries should be directed to the WCU Manager or the CPS Victim and Witness Champion and then, if necessary, the Victim and Witness Care Delivery Unit (vandw.care@cps.gsi.gov.uk).

Young Witness Checklist

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