Roderick Bagshaw
Michaelmas 2000
Witnesses2000 – Lecture 2 – Children
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Introduction – Are children the same as adults?
a. Are they as reliable? (J. McEwan, Evidence and the
Adversarial Process (2nd ed. 1998), Ch. 4, E. Shepherd and A.
Mortimer, Ch. 4 in A. Heaton-Armstrong et al, Analysing Witness
Testimony (1999))
® Recall – Children under 10 five or six times less
than adults (B.Marin, D. Holmes, M. Guth and P.Kovac, “The Potential of
Children as Eyewitnesses” (1979) 3 Law and Human Behaviour 295)
® Memory – Memory of children fades faster than adults
(younger the faster) (C. Brainerd, J. Kingma and M.J. Howe, “On the Development
of Forgetting” (1985) 56 Child Development 1103
® Suggestibility – Some support for children being
more suggestible than adults (R.L. Cohen and M.A. Harnick, “The Susceptibility
of Child Witnesses to Suggestion” (1980) 4 Law and Human Behaviour 295; A.
Clarke-Stewart, W.Thompson and S.Lepore, “Manipulating Children’s
Interpretations Through Interrogation” in S.J. Ceci, M.P. Toglia and D.F. Ross
(eds.), Children’s Eyewitness Memory (1987)), but also relevant whether
‘suggester’ is trusted
® Guessing – very young children often guess rather than
‘disappoint’
® Fabrication – incidence difficult to measure;
fabrication may be impossible in very young children
b. Does cross-examination work on children? c.
Does participation in the trial harm children?
1. Children as Witnesses:
Underlying Tensions
Effective therapy v. Preservation of the integrity of evidence
Desire to secure convictions v. Acknowledged cost of miscarriages of justice
2. Video-taped evidence
G.Davies, et al., Videotaping
Children’s Evidence: an Evaluation (Home Office, 1995)
L. Hoyano, “Variations on a Theme by Pigot: …
Child Witnesses” [2000] Crim LR 250
Civil cases: Children (Admissibility of Hearsay Evidence)
Order 1993 (Civil Ev. Act 1995)
Criminal cases: Youth Justice and Criminal Evidence Act 1999
Eligibility on grounds of age (under 17): s.
16(1)(a)
Special measures directions: s. 19. Special
provisions relating to child witnesses: s. 21
Video recorded evidence in chief: s. 27. Video
recorded cross-examination: s. 28
S. 27(2)
“in the interests of justice the recording, …, should not to be so
admitted” [cf. s. 78 PACE]
Conduct of interview: R. v. Dunphy
(1993) 98 Cr.App.R. 393 - Report of the Enquiry into Child Abuse in
Cleveland (Cm. 412); Memorandum of Good Practice on Video Recorded
Interviews with Child Witnesses for Criminal Proceedings (HMSO, 1992)
Re D (Minors) (Child abuse: Interviews) (1998) Times, 11 March 1998
b. Cross-examination:
Youth Justice and Criminal Evidence Act 1999,
ss. 34-36 (not the accused in person), s. 28 (video)
Home Office’s Advisory Group on Video Evidence
(1990), chair, His Honour Judge Pigot Q.C.
c. Possible admissibility as hearsay: s. 23 Criminal Justice Act 1988, but
NB s. 26
Criminal cases – ss. Youth Justice and Criminal Evidence Act
1999 s. 53 (basic), s. 55 (sworn)
D.P.P. v. M [1998] Q.B. 913; G. v. D.P.P. [1998] Q.B. 918
Civil cases - R. v. Bellamy (1985) 82
Cr.App.R. 222, whether a person appreciates the solemnity of the occasion, and
the added responsibility to tell the truth which is involved in taking an oath,
over and above the duty to tell the truth which is an ordinary duty of normal
social conduct.
Unsworn- s. 96 Children Act 1989 (A. Keane, The
Modern Law of Evidence (4th ed., 1996), p. 111)
4. Admissibility of expert evidence on the credibility of
children
Civil cases: Re M and R (Minors) [1996] 4 All E.R. 239. Civil Evidence Act 1972, s. 3
Criminal cases: Ultimate issue rule – G. v. D.P.P. [1998] Q.B. 918; R. v. Davies (1995), C.A.
No bolstering rule: R. v. Robinson [1994] 3 All E.R. 346, C.A.
5. Corroboration warnings (or
not) 6. Compellability
Criminal Justice Act 1988, s. 34 N.B. Oppression rule
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