Sexual Assault Trials Handbook — Child sexual abuse and the criminal law

J Cashmore, “Child witnesses: the judicial role” (2007) 8(2) The Judicial Review 281.

This paper discusses the problems child witnesses face in an adversarial adult-orientated system. These include children being required to answer questions from a number of different people about what happened, waiting months and even years before the case gets to court, having to face the alleged offender and being asked complex and difficult questions by lawyers unaccustomed to speaking to children in language they can understand.

There have been a number of changes in investigative and court procedure to try and accommodate the needs of child witnesses while still protecting the rights of the accused. However, despite these changes child witnesses report feeling they could not give a full and proper account of their evidence. Research indicates that the consistency and completeness of their testimony and their emotional state are affected by the way they are questioned. Research also highlights the significant imbalance of power, language skills and familiarity with the court process between the child witnesses and the legal professionals involved.

Research in a number of jurisdictions has also shown that a number of judges show a marked reluctance to intervene or simply do not intervene to assist or protect vulnerable witnesses during cross-examination. Changes in the law and other encouragement to intervene are not sufficient. The ability to recognise that questioning is developmentally inappropriate, oppressive or intimidating for a child witness is not intuitive and needs to be part of legal training and judicial education.

Judges and magistrates should set the tone of the courtroom and can model appropriate behaviours and ways of interacting with child witnesses that are respectful and allow children to testify in a full and fair manner. Judicial leadership is probably the most effective means within the existing adversarial system of changing the culture of the courtroom to offset the imbalance between professional lawyers and child witnesses. Minor changes like minimising delay, appropriate competence testing, ensuring the use of special measures, making the unfamiliar less intimidating and providing breaks can provide a more equal playing field for child witnesses which would improve the reliability of children’s evidence and make the court process fairer and less intimidating for child witnesses without disturbing the rights of the accused to a fair trial.