The decision of the Court of Appeal in R v. Barker [2010] EWCA Crim 4 takes a fresh look at cross-examination, an instrument which common law courts have traditionally regarded as an outstanding investigative technique and therefore essential to a fair trial. However, research over the last 30 years regarding child witnesses suggests that cross-examination is frequently confusing for the child and causes children serious anxiety. This is not only a welfare issue but also has serious implications for the quality of the evidence available to the courts.
Parliament and the courts have addressed criticisms of many other aspects of the criminal court process in relation to children. The Youth Justice and Criminal Evidence Act 1999 (YJCE 1999) allows children to testify from behind screens or via closed-circuit television rather than in open court and, by admitting children's police interview videos as their evidence-in-chief, the time children now spend testifying has been reduced. Further, whereas it was assumed that very young children were generally incompetent to testify, age per se has now been declared irrelevant and competence is addressed individually (YJCE 1999, s. 53).
However, neither Parliament nor the courts have done much to address problems with cross-examination. While Parliament introduced communication specialists or “intermediaries” to advise on and monitor the intelligibility of cross-examination questions (YJCE 1999, s. 29), in practice intermediaries intervene very little (see Plotnikoff and Woolfson “The Go-Between”: An Evaluation of the Intermediary Pilot (London, 2007)). Another legislative measure, allowing cross-examination to be conducted early to avoid vulnerable witnesses' memories deteriorating before trial (YJCE 1999, s. 28), has not yet been brought into force.
The Bar and the judiciary have also tried to improve standards of practice. However, recent research suggests that in regards to cross-examination little has changed; a significant percentage of cross-examination questions remain unintelligible to the child witness and many children still find cross-examination very distressing (see for example Plotnikoff and Woolfson Measuring Up? Evaluating Implementation of Government Commitments to Young Witnesses in Criminal Proceedings (London 2009)). However, Barker seems to signal a new rigour in the policing of the cross-examination of children, reaffirming the existing, often ignored, rules and restraining some of the practices research identifies as problematic.
Barker concerned an unsuccessful appeal from a conviction for the anal rape of a child. A child of nearly three disclosed sexual assault by her mother's boyfriend. Six months later in an interview with specialist police officers she gave a detailed account of anal rape. A year later, when she was four and a half, the case came to trial. The video of the police interview was admitted as the child's evidence–in-chief and she was cross-examined for 45 minutes.
During cross-examination the child gave apparently meaningless responses to several questions. On appeal the defendant argued that these answers were proof that the girl's youth and the 18 month delay before trial made her incompetent to testify.
The Court of Appeal affirmed that even very young children can be competent witnesses and that delay, although undesirable, is but a factor to consider and does not create a presumption of incompetence. This child's memory remained clear and intact. Moreover, witnesses are not incompetent merely because in order to testify effectively they must use statutorily available special measures or because the courts must adapt usual practice, including cross-examination. Nor are they incompetent because they cannot answer every question intelligibly.
The Court warned that some cross-examination practices can create the appearance of incompetence in a competent witness. One such practice is prolonged cross-examination about allegations adverse to the witness as part of counsel's duty to put the case. This duty, supposedly based in natural justice, requires that witnesses have an opportunity to answer adverse allegations. However, this can be used against witnesses, since their distress when hurtful or humiliating allegations are dwelt upon can diminish their effectiveness. The Court stated that the duty is met by a brief question. All else should be restricted to submissions.
The Court was particularly critical of the unlawful (but popular) practice of inserting unfavourable commentary into cross-examination, which is another technique often criticised as unfair to witnesses. Further, the Court highlighted the dangers of overly complex language when cross-examining children. It pointed out that the apparently nonsensical exchanges during the trial cross-examination, which the appellant argued showed that the child was incompetent, were in fact due to counsel's confusing and ambiguous questions. Given that ambiguity the child's answers were quite sensible.
Barker suggests a new determination to move cross-examination away from illegitimate theatrics and obfuscation and back towards its essential purpose of testing the evidence. Excellent though this is, the Court still underestimates the problems. Its confidence that counsel will not find it “over-problematic” to eschew ambiguity and “formulate short, simple questions”, at [42], hugely underestimates the complexity of the task. The Court falls for the common misconception that ordinary experience fits one to question a child clearly and without suggestion, ignoring the significant body of research which shows it to be a very complex task.
Regrettably, also, the Court accepted earlier rulings that a child's competence could be revisited after cross-examination, so that the evidence-in-chief of a child who fails to withstand cross-examination can be ruled inadmissible retrospectively. This indicates a confidence in cross-examination as an assessment procedure which the Court's own analysis demonstrates is unfounded. It raises the possibility that counsel might first confuse a child through his or her own ineptitude and then be entitled to have that child declared incompetent. Not every court analyses ambiguous dialogue as ably as the Court of Appeal.
A retrospective declaration of incompetence also ignores the fact that witnesses can be competent whilst giving their initial statements but then have their competence decline, whether through illness, delays before trial or through fatigue and fear whilst testifying. The original evidence does not become less reliable, rather, it cannot be tested; a different issue and one for which there are already procedures.
Lawyers often revere cross-examination, but many academics and child advocates regard it as unnecessarily traumatic and a threat to the safety of the evidence. In Barker the Court attempts to use the existing rules of cross-examination to root out its more egregious practices. However, almost simultaneously with Barker, the Supreme Court, discussing wardship proceedings in Re W (Children) [2010] UKSC 12, [2010] I.W.L.R. 701, [2010] C.L.J. 458 delivered a scathing assessment of cross-examination as an investigative technique and finished by advocating that future courts seek radical alternatives. The comparison is somewhat unfair, but, in the end, it may be felt that as reforms go, Barker is more branch than root.
