International Review of Victimology, 2006, Vol.

13, pp 179-200
0269-7580/06 $10
A B Academic Publishers -Printed in Great Britain
TAKING CHILD WITNESSES OUT OF THE CROWN
COURT: A LIVE LINK INITIATIVE
RICHARD APPLEGATE*
School of Sociology, Politics and Law, University of Plymouth, UK
ABSTRACT
This article describes an innovative project in England whereby child witnesses gave evidence via
a video link from a building away from the court complex. The research indicates that this was
seen as an effective method for children to give their evidence; removing most of the negative
issues relating to giving evidence either in person from the court room, or from a live video link
from a room routinely located within the court complex. This arrangement was seen to encourage
children to give evidence in the first instance; to improve its quality; and to soften the traditional
adversarial nature of the criminal justice system. Professionals in the Crown Court have accepted
live video link technology as part of their work role and although the children concerned, and their
parents, were not so positive they also considered it to be a very good way for them to give evidence.
Keywords: witnesses, live video link, Crown Court, England & Wales
INTRODUCTION
Giving evidence before a Crown Court can be a traumatic experience. Where the
witness is a young victim, especially when the defendant is a relative or close
family friend, the stress caused is often intense. This has at last been acknow-
ledged in England and Wales where children are no longer required to give
evidence in court and now give their evidence in chief and are cross-examined
in cases of abuse or violence using pre-recorded video taped evidence, and in
other cases may use a live video link system from a separate room within a
Crown Court complex. However such court buildings are not 'child friendly',
and in addition it may be that in being brought to court the child victim (or
witness) may be confronted by the defendant or his/her supporters. Providing a
video link from a building away from the court setting may offer a better
alternative.
The Young Witness Support Project in Devon and Cornwall run by the
National Society for the Protection of Cruelty to Children (NSPCC) therefore
established a pilot scheme in Exeter, England whereby young victims and
witnesses would be offered the option of giving their evidence via a remote live
*School of Sociology, Politics and Law, University ofPlymouth, 15 Portland Villas, Drakes Circus,
Plymouth, UK. (dick.applegate@plymouth.ac.uk)
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video link based in a building situated away from the court complex, in order to
provide the 'best possible environment for young witnesses' to give evidence,
including the provision of support workers who have no knowledge of, or
involvement in the case (NSPCC, 2002: p. 2). This article provides an evaluation
of the scheme based on interviews conducted with children, their parents, police,
and Crown Court officials.
THE RESEARCH IN CONTEXT
Although the secondary victimisation suffered by victims giving evidence in
court has been long recognised, support for victims and other witnesses in court
has been late arriving in England and Wales. Whilst in the U.S.A. emerging
victim services in the 1980s coalesced around the courtroom setting (OVC,
2001a; 200lb), in England and Wales support for the victim was initially
provided mostly at the time of the offence, and it was only after pressure, for
example from Victim Support, that court-based services were established
(NAVSS, 1988; Raine and Smith, 1991; Mawby and Walklate, 1994). These
developments gained momentum during the Major government's embracing of
consumerism (Doern, 1993; Connolly et al., 1994; Wilson, 1996), leading to the
first Victims Charter (Home Office, 1990) and its successor (Home Office,
1995). The Home Office now regularly monitors the courtroom experiences of
victims and witnesses as 'consumers'. The continued importance of this issue to
consecutive governments is illustrated by the publication of New Deal for
Victims and Witnesses: National strategy to deliver improved services (Home
Office, 2003) that underlines the importance of 'good customer service' and sets
out to reassure intimidated and vulnerable witnesses that more options to mini-
mise attendance at court, such as live television links, will be fully and effective-
ly implemented. However this document does not specifically target children.
The impact of crime and the criminal justice process on children has also been
acknowledged (Morgan and Zedner, 1992), but reform has been marked by
concerns to balance the interests of the child with the interests of the legal
process (Welbourne, 2002). Nevertheless both the Crown Prosecution Service
Statement on the Treatment of Victims and Witnesses (www.cps.gov/home/vic-
tims) and The Couns Chaner (www.court service.gov.uk) detail the standards
that can be expected and the avenues of complaint for those who are unhappy
with the level of service they receive. Equally, at local level in Devon and
Cornwall the Force Policing Chaner (www.devon-cornwall.police.uk) makes
special reference to child victims and witnesses.
However there are special issues in respect of children as witnesses in
criminal cases that relate more directly to the problems of bridging the gap
between the interests of the witness and the interests of the legal system, and of
the child victim being plunged into the adult world of the court system, issues
which, despite the rhetoric of consumerism, remain difficult to ameliorate within
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an adversarial criminal justice process. On the one hand, issues surrounding a
witness giving evidence ' ... outside the physical presence of the defendant' and
restricting the right of the defendant to 'confront accusatory witnesses', both
'cornerstones of adversarial trials' (Meyers, 1996: p. 236) have been raised. On
the other hand, the 'extreme vulnerability and powerlessness' that children find
themselves in when involved in an adult court has evoked concern. They can be
confused and ignorant of, and misunderstand their role and their situation within
the legal process (Eltringham and Aldridge, 2000: p. 276). There is also the
possibility of corning face to face with the defendant or his or her supporters,
within or outside the court room.
These issues in respect of child witnesses are not confined to England and
Wales and have been addressed in a number of countries worldwide that have
similar adversarial common law systems of justice. In the United States for
example, where the right for a defendant to have face to face confrontation with
a witness is enshrined in the 6th Amendment to the U.S. Constitution, The Child
Victims and Child Witness Rights Statute of 1990 enables individual states to
pass statutes to allow a witness under 18 years of age to give evidence via CCTV
links. However this can only be implemented specifically in respect of cases
involving abuse or exploitation, with each case having to be assessed on its own
merits. The range of cases where CCTV links can be employed and the ages of
the witnesses involved vary from state to state. Not all states have introduced
statutes to enable them to be used, with some still insisting upon face to face
confrontation. Recent research suggests that some thirty-seven states had en-
acted statutes to allow special measures for child witnesses in cases of sexual
abuse (Richards, 2000).
In Australia special measures for children to give their evidence, such as
screens, live link CCTV and video evidence, are available in most jurisdictions.
However as the criminal law is the responsibility of state parliaments, the kind
of measures available and the right to use them vary from state to state. In most
cases the use of live link CCTV is not a legal right, and is dependent - on a case
by cases basis- upon the possible effects that giving evidence might have on the
child, and the most effective means of setting out the evidence (Reid-Howie
Associates, 2002). However in New South Wales The Evidence (Children) Act
1997, ensures that the child has the right to give their evidence in chief in the
form of a video recording, with live link CCTV available where the court
requires further evidence, and also enables them to have a supporter with them
when they give evidence. These rights can only be refused if the judge is satisfied
that the child is capable of giving evidence in any other manner. The basis of the
legislation is ' ... to give children control over the way in which their testimony
will be presented to the court.' (Davies et al., 1999: p. 73).
In England and Wales, the need to recognise the welfare of children as
witnesses and defendants and their requirement for special protection was noted
as long ago as The Children and Young Persons Act 1933. However it was
research conducted in the 1980s that underlined the problems regarding child
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witnesses in adult courts and resulted in 'piece-meal measures which modified
the statutory and common law rules underpinning the adversarial system of
justice', creating a framework for inter-agency cooperation (Davies et al., 1999:
p. 5). Consequently, The Criminal Justice Act 1988 permitted a Crown Court or
youth court to allow a child, at the discretion of the court, to give evidence using
a video recording and/or be questioned by a live CCTV link during the trial, but
this only applied to witnesses under the age of 14 years in cases of violence or
cruelty, and under 17 years in respect of sex offences. Nevertheless, for the first
time it was possible for children to give evidence to the court from a room
situated outside the courtroom itself. The Home Secretary subsequently insti-
gated an inquiry chaired by Judge Thomas Pigot (The Pigot Committee, 1989)
into the special measures that were then in place, and to consider the implications
of the changes that such legislation could have upon the traditional rules of
evidence. The subsequent report challenged the presumption that the legal
process took priority over the interests of the witness, and sought to remove the
child witness from the court altogether. For example it recommended that:
children should never be required to give evidence as witnesses in Crown
Court unless they wish to do so;
a video taped interview of a child witness should be admissible as evidence
and should be used as their 'evidence in chief' in court proceedings;
the court could permit the video taped cross-examination of a child witness
in informal surroundings, with the defendant able to witness this examin-
ation on a CCTV live link, allowing him audio contact with his legal
representative or counsel, with the tape being shown to the court at a later
date.
Public concern was growing as to the manner in which vulnerable witnesses
were being treated by the criminal justice system in England and Wales, and in
1997, as a result of this concern, central government set up an interdepartmental
working party to consider this issue. Its report (Speaking up for Justice - The
Report, 1998) recommended in respect of vulnerable or intimidated witnesses,
inter alia, the use of live link CCTV from a room or building other than the court,
and the ability to have a supporter present with them at this time. These
recommendations were later included in the Youth Justice and Criminal Evi-
dence Act 1999, which introduced a range of 'Special Measures Directions' that
a court can implement for vulnerable witnesses. Such witnesses include all
children under 17 years of age at the time of the trial, and adults only where the
court considers the quality of their testimony may be at risk due to intimidation
or vulnerability in respect of any mental or physical incapacity; measures that
have ' ... radically altered the orthodox adversarial trial model' (Hoyano, 2001:
p. 948) in England and Wales. These special measures include the options of
giving evidence-in-chief through a video recorded interview; videoed pre-trial
cross-examinationa and re-examination; the use of live link CCTV
1
; the use of
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screens to separate the witness from the rest of the court; the removal of wigs
and gowns by judges, barristers and court officers; and the use of communication
aids, intennediaries, or giving evidence in camera where this would enhance the
quality of their evidence. Furthennore guidance for professionals in the court-
room contained in A Judicial Studies Board Bench Book (Judicial Studies Board,
2004: Section 4.4.3) points out that 'judicial vigilance is always necessary to:
guard against 'over-rigorous cross-examination';
ensure that advocates use language that is 'free of jargon and appropriate
to the age of the child', and that questions are 'unambiguous', and that the
child is given full opportunity to answer. (quoted in Plotnikoff & Woolf-
son, 2004: p. 73).
Reports from the interdepartmental working group, under the banner of
'Action for Justice- Implementing the Speaking up for Justice Report' continued
to be published. For example, their report dated January 2002 sets out guidelines
for those involved in the investigation and prosecution of cases involving
vulnerable witnesses, and includes new National Standards for court witness
supporters in live link CCTV rooms (Appendix F. pp. 145-147). More recently
the use of live video links for child witnesses to give evidence will be extended
to all magistrates' courts in England and Wales from October 2005 (Home
Office, 2005).
Although there is considerable argument and legal research into the conse-
quences of special measures introduced to enable witnesses to give evidence
from a CCTV live link, rather than in open court (see for example Forlin, 1998
and Hoyano, 2002), there is scant research into the effects that giving evidence
to a court in the 'traditional way' has upon children (Cobley, 1995: p. 164).
Researchers have, however, referred to the children's fear of seeing the defend-
ant (Davies and Wescott, 1999), and the fact that many children are tense and
unhappy when giving their evidence in open court (Dent and Flin, 1992).
Research in the U.S. indicates that a CCTV live link system 'helped children feel
less anxious about testifying', with jurors being 'no better at discerning accurate
testimony when children testified in open court than when they testified over
CCTV' (Goodman et al., 2001: p. 295). In England and Wales, Davies and Noon
(1991) found child witnesses to 'be more resistant to leading questions, more
consistent, more confident and less unhappy', but also felt their testimony
'seemed to have less immediacy and emotional impact for the jury' [as against
that given in open court]' (op cit: p. 257). Research carried out by the Central
Research Unit of the Scottish Office (1995) found that children who used a live
CCTV link were 'significantly less likely to cry during cross-examination and to
report fear while testifying', and more likely to say they were fairly treated. In
tenns of impact on the quality of their evidence compared to 'non users' they
were 'significantly less likely to answer in detail, and in cross-examination were
significantly less likely resistant to leading questions on peripheral matters'
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(Scottish Office, 1995: p. 1). Lawyers found it more difficult to cross-examine a
witness on the live CCTV link but conceded that in many cases the child would
not have given evidence if that opportunity had not been available. A majority of
judges were in favour of using a live CCTV link to 'alleviate the ordeal of
testifying for some child witnesses' (Scottish Office, 1995: p. 2). A government
funded vulnerable witness survey carried out in England and Wales by Kitchen
and Elliot (2001) indicated that 43% of witnesses aged under seventeen who
gave evidence were given the opportunity to use a live CCTV link; that 73% of
those witnesses under seventeen who used a live link were satisfied with this
method; and that they tended to be more satisfied with its use than vulnerable
adults who were given the same opportunity. Similarly funded follow-up re-
search carried out in 2003 revealed that live CCTV links available for use had
doubled to cover 83% of child witnesses, with 87% of those offered this facility
actually using it, and 90% of those who did use it finding it ' ... helpful to give
their evidence in this way.' (Hamlin et al., 2004: p. 70).
Research by Plotnikoff and Woolfsan (2004) describes the experiences of
children who have given evidence in criminal proceedings in England, Wales
and Northern Ireland. In respect of the 'special measures' they found that of the
50 witnesses they interviewed, 44 gave evidence by a CCTV link from the court,
one from behind a screen in the courtroom and five gave face-to-face evidence
in open court. Of the 44 who gave evidence by CCTV link, twelve disliked the
TV room at the court (because it was too cramped and/or converted from another
use), three saw the defendant in the court on their television monitor, and 17 were
upset by the thought of being seen by the defendant on the courtroom monitor.
However, although only nine witnesses had initially chosen the CCTV link to
give their evidence, overall 28 preferred this method. None of them gave
evidence via a remote link, and although 27 of them stated they felt safe within
the court complex, the major issue for most of them was to avoid seeing the
defendant. Overall, nine of them reported that they had seen the defendant and
another five either spent time in public areas of the court or saw supporters of
the defendant. In conclusion they suggested that CCTV links had assisted most
of these young people to give their 'best evidence', many of whom would not
have otherwise given evidence, but overall it was felt that the court process had
let them down.
THE RESEARCH
In Exeter, through the work of the NSPCC, a remote live video link has been
installed in a building outside the court complex. Using state of the art equipment
it allows children and young people to give their evidence from a room specifi-
cally designed for that purpose. The research was designed to provide a qualita-
tive evaluation of children and young people giving evidence to a Crown Court
via a live video link: firstly drawing from the knowledge and experiences of the
185
professionals involved in the criminal justice process; secondly considering the
children's own views and experiences; and thirdly looking at those of their
parents or guardians. To achieve this, interview schedules were prepared for the
children; for the parents of these children; and for the professionals employed in
the Crown Court process. In each case the schedule was designed for a 'face to
face' interview and was semi-structured in form. Interviews were taped and later
transcribed.
It is often difficult to gain access to those involved in the criminal justice
process, particularly those at the top end of the profession (Reiner, 2000), but no
such problems were encountered with this research. Twenty-five professionals
were approached: of these twenty (80%) agreed to be interviewed; two judges,
three court clerks, three court ushers, four police officers, one Crown
Court/police liaison officer, four members of the Crown Prosecution Service,
two NSPCC court support workers, and one barrister.
However problems were encountered with accessing the children and their
parents, firstly because of the sensitivity of the issues involved, in that all the
children were victims, even though it was made clear at the outset that the
interviews would not make any reference to the circumstances of the alleged
offence; secondly to ensure that contact was only made with those who may be
considered to be happy to be involved in the research, and not to follow up these
requests where there was no reply or a negative response, in order to remove any
suggestion of 'secondary of tertiary victimisation'. To achieve this, first contact
was made by the NSPCC Young Witness Support Project which wrote to 27
parents/guardians and through them their respective children, requesting their
involvement, and setting out what this would entail and the reason behind it. It
was a disappointingly small sample frame considering that 'an average of 200
young people are referred to the Project each year' (NSPCC, 2002: p. 3). From
this five parents replied, of whom three agreed to be interviewed. The fifth
parent, whilst supporting the research, did not wish their child to undergo an
interview about an issue they now considered to be closed. Eventually three
parents and three children took part in the research, all of whom gave evidence
from the remote live video link room. The fourth parent and child decided at the
very last minute not to attend for interview, fearing that it might bring back
memories of a part of their lives that they wished to put behind them.
2
Conse-
quently the findings are focussed more upon the perceptions of the professionals:
those of the children and their parents have been introduced more to substantiate
and contrast rather than as a substantive element of the research.
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THE PROFESSIONALS' PERSPECTIVE
Live Video Links - The Technology
Bringing children and young people into the adult world of the criminal justice
system, especially as witnesses in the Crown Court, and with the possibility that
they will come into contact with the defendant or his/her supporters, was seen a
major issue by all the professionals interviewed. Not surprisingly then, the
introduction of live video links from another room within the court building was
seen as a major improvement. However, many of those interviewed recognised
that there were still some disadvantages associated with this development. Three
problems were identified. First, the court building was frequently criticised as
inappropriate. Second, the room used for the video link was often considered
unsuitable. Finally, the possibility of confronting the defendant, whilst much
reduced, was still evident. For almost all courtroom professionals interviewed,
the live video link provided a preferable alternative. Those with experience of
using the link from elsewhere in the court complex and those who had used the
link from an external location were asked to recount their experiences of using
the remote link from the NSPCC building.
Overall the new technology used was seen as being easy to use and reliable:
'Easy, once you get to know it. It's a bit fiddly switching it on, you have to
make sure that the cameras are focussed properly on the barristers so that
the child can't see the defendant or the public gallery, but it's a very quick
process. Yes it is reliable; the only problem is ISDN lines, which you get
with any computer equipment using them. Sometimes they go down. And
it is spontaneous and a crystal clear picture.' (Crown Court clerk)
The equipment is, however, only as efficient as the people using it. Respond-
ents were therefore asked what training had been given to those who were using
or controlling it. The general view was that a number of ushers and clerks were
given some initial training by those who installed the equipment at the NSPCC
remote building:
'The training was given by the people who installed the system, the NSPCC
live link system that is. It is easy to operate and we have simple instructions
available for the judge on the bench so that he knows what buttons to push
at what time.' (Crown Court judge)
Court ushers were seen as the experts in this field, with judges considered
almost wholly reliant on their expertise:
'It seems to me that it is the ushers that are the main movers when it comes
to the technology. They seem to have the knowledge of how it works. The
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judge and barristers it seems defer to them when things don't quite go right.
I've never had any major problems with any of the video technology.
Normally if there has been a problem someone has pushed the wrong button
or something very minor.' (police officer- Child Protection Team)
Nevertheless, in court it is the trial judge who controls the use of the video
link technology, requiring a degree of expertise, something that judges were not
always perceived to have. For example with the link from the NSPCC remote
building:
'The judges are apt to play with the buttons, a bit like men with remote
controls, and the judge will often press the wrong button which flicks it off
for a moment in time and then everybody involved finds it very difficult to
get it back on again. So what we've learnt to do at the NSPCC is to just tum
it off at the socket, switch it back on and reboot everything again. This seems
to be the quickest way to get it moving again. So the training they've had
obviously wasn't very good. So when it does go wrong we quickly get it
moving again. So I think more training should be provided for all of us.'
(NSPCC Child Support Worker)
On the other hand, most barristers were thought to have accepted the live
video link as a method of examining and cross-examining child witnesses. For
example:
'I think barristers are pretty much OK with this. Most of them have realised
that this is a technology that we are going to have more and more and they
seem to have taken it into their stride and they work quite well with it. It
doesn't matter if it's in a court building or two hundred miles away as long
as it's the same type of equipment there's no problem there, the effects are
the same, as well as the legal and procedural issues.' (CPS case worker)
The net result was then an acceptance of the procedure among judges and a
gradual softening of the approach of barristers, initially through court-based live
links:
'The barristers have got used to it. To begin with they used it in exactly the
same way as before - you know they would attack the child. But now
they've gotten used to talking through the TV as a medium, and the biggest
hurdle was getting the judge to be sympathetic to the child, and the judges
we've got now are becoming much more sympathetic to the need of the
child. No doubt about that - and protecting the child from too much
badgering by the barristers. They don't allow them to be too hard, the way
in which a child is cross examined has been toned down by the judge I
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would say, like, 80 percent of that to which any adult witness in a court
would be.' (police officer- Child Protection Team)
And increasingly with links from a remote location:
'I think it helps the prosecution because it can't be so vigorous. It's still
there but it's more gentle and the children I've seen being cross-examined
have stood up to it very well. You know, when they are accused of making
things up, or "I put it to you this isn't true" They say, "Well I put it back to
you, it is true." And they are quite good at it, whether they see this as a part
of another video game at home I don't know, but they seem to cope with it
very well.' (police officer- Child Protection Team)
The Live Link from a Building Outside the Court Complex
The building used to house the remote video link to Exeter Crown Court was
located close to the central shopping area of the city, some five minutes walk
from the court complex. However, all those interviewed believed that as long as
it was away from the court, the location of the remote link was not important.
For example:
'It doesn't matter where the room is. We try to keep it close to the building
in case any of the barristers or the judge wants to go and visit but in actual
fact we did one from Australia to this court. It just shows there wasn't a
problem.' (Crown Court/Police Liaison Officer)
With this in mind respondents were asked if there could be problems with the
production of exhibits between the courtroom and the remote live link room. It
was generally agreed that this was not a problem with, for example, some
exhibits being shown to the child witness over the link:
'Yes, now that has come up a few times. In recent cases I've had the exhibits
have remained in the court and they've been held up in front of the camera,
and the counsel have said you know, is this your diary for example, or do
you remember showing the police officer this. Yes, it's not been a problem.'
(police officer - Child Protection Team)
Court professionals were unanimous in agreeing that there were no legal or
procedural problems in producing a witness at a building other than at a court:
'It runs the same as if it were in the court. There are practical issues that
need to be addressed but otherwise it is in fact the same. The practical issues
are of course that it is important to have in my view an appropriately trained
189
usher attending on the child in order to administer the oath and do the
various other bits and pieces that are required because I think it is important
that should be seen to be being done by an official from the court rather
than by an outside agency which might be perceived to have a particular
bias one way or the other.' (barrister)
There was no necessity for additional rules or safeguards:
'For the link the same rules apply as they do in court, if they're over 17 they
take an oath etc but there's nothing that is done differently there apart from
obviously you are sitting with a younger person in a lot of cases so its up
to you if you think that somebody is becoming distressed that you actually
take over and say that you want to take a break. Whereas in the court you
wouldn't, because that would be up to the judge or the clerk.' (Crown Court
usher)
As a result, the court usher in these cases was becoming more important. A
Child Support Worker, for example, noted:
'Well, we are all very aware that once the usher is present we have no say
then. And the usher takes over the whole of the proceedings. Obviously we
are there for the well being of the child, we have the link all set up and ready,
but once the usher enters the premises, we just sit there, yes.' (NSPCC Child
Support Worker)
A senior member of the criminal justice system concurred:
'Well the practice we operate is really the same as would be operated here.
Namely that there is a trained member of the court staff present in the room
with the child and there is also a NSPCC worker who is sitting some
distance from the child simply to be a friendly and known face. So we don't
have any different system down there. The equipment is such that you are
able from here to scan the whole room where the child is where the grown
ups are if you needed to just in case it was thought there was some
encouragement being given to the child but we haven't had any problems
of that sort, nobody has ever taken a point about that.' (Crown Court judge)
The point was frequently made that the use of a live video link from a remote
building virtually eliminated both the likelihood of the witness coming into
contact with others involved in the case, for example:
'From the point of view of the defendant or his supporters the chances of
contact are nil or as nil as makes no difference. That is one of the main
190
advantages of the system that it effectively eliminates the possibility of any
accidental contact.' (Crown Court judge)
The video live link rooms at the remote building were also seen to be very
conducive to the comfort and welfare of the child witness, for example:
'I think it is quite a child friendly room. In fact it is a child friendly office,
you know the ethos of the NSPCC is about children coming first and I think
that children pick up on that environment whereas I think the environment
of the court is quite intimidating even as an adult I feel quite uneasy when
I walk into the court precinct so I think that children pick up on that kind
of feeling so I think the NSPCC office is great, it's child friendly there's
pictures on the walls which I think is quite reassuring.' (police officer -
Child Protection Team)
Consequently this had a positive affect upon witnesses:
'It keeps them calm and placid- even those we worry about. We had one
case- she wasn't the youngest, about 14 or 15- to give evidence: she is a
girl that is very scarred mentally with the abuse that she's had over the years.
Even social services weren't able to keep a check or control over her. She
was refusing to give evidence. She visited the NSPCC on a couple of
occasions and when she did give evidence, she did walk out once but whilst
sitting in that room it calmed her down and she actually got through her
evidence which we never expected.' (Crown Court/Police Liaison Officer)
Overall, the professionals interviewed were unanimous in their support for the
off-site facilities. For example, as one official accepted:
'There's been a one hundred per cent improvement. The difference in their
attitude and their approach to what they have to do is just amazing. Yes,
they know they are going to be answering questions, talking about embar-
rassing things - whatever their evidence is about - so that part of it is still
much the same. But to be able to do it from somewhere that you feel
comfortable, that you know that you are not going to see anyone you don't
want to see, that you know that everybody in that building is there for you,
bar none, it just makes so very much difference.' (NSPCC Child Support
Worker)
Although a minority felt that there were advantages to the child appearing in
court, all accepted that these came at a heavy price. Child victims and witnesses
were intimidated at the prospect of giving evidence in court and as a result the
quality of their evidence suffered. Using a video link provided a marked im-
provement in both respects, albeit some of those we interviewed were less than
191
entirely confident about using the new technology, and senior judges tended to
rely on court officers.
Given that only three children and their parents were interviewed, caution
must be taken not to over-generalise from their interviews. However their views
mirrored those of the professionals we spoke to. All three children, who were
under thirteen when they gave evidence, were comfortable about going into the
live link video room that was located outside of the Crown Court complex:
'Well after I had visited it I was quite pleased because I didn't have to see
anything, I didn't have the experience of going to court. I was happy
because before giving evidence we could just sit and watch television, and
then give evidence and that was quite comfortable, obviously.' (Female 13
years)
All three children had visited the remote live video link room prior to
attending to give their evidence, which they felt was helpful, for example:
'Yes, I knew what the room was like, and it was better when I went there,
it was OK.' (Female 12 years)
Although:
'Well when I got there it was pretty scary, because I just saw this big screen
with me on it. Well I thought, well I was quite fascinated with it, but it was
a little bit scary.' (Male 13 years)
However the children agreed that they felt comfortable there:
'It was really friendly because in the evidence room it was just like a little
lounge and there was a room we had to go in before I gave evidence. It was
really nice and friendly and they told you the way round and everything.'
(Female 13 years)
They all said that they had been told what would happen to them when they
gave their evidence. For example:
'Jill told me. She just explained to me that I had to tell the truth and don't
do anything that you don't want to know and stufflike that. It did help me
because I knew what it was I had to do.' (Female 13 years)
However, basing the link in the court building, while alleviating the situation,
did not completely eliminate the problems. The court buildings were not child
friendly and the rooms used for the link were generally not suitable. Added to
this, the possibility of the child being confronted by the defendant or his kin,
192
while less likely, still existed. The Exeter model, whereby children normally give
evidence from a link in a separate building, was seen as far superior. The
likelihood of direct contact between the child and the defendant was negligible.
Moreover, giving evidence in a room that was specifically designed for children,
in surroundings away from the court building, received widespread approval.
The use of video live links for vulnerable witnesses was seen by all those
interviewed as having had a positive affect upon the criminal justice system,
softening its traditional adversarial nature:
'From my experience that, the cross examination, the challenge is still there,
but it's far gentler and it's more controlled by the judge. Yes, much gentler
on the child using live links.' (police officer- Child Protection Team)
In particular it had increased the effectiveness of the criminal justice system
in that:
'I think that it has made it easier in some ways for witnesses to come to
give evidence because they know that they are not going to be daunted by
walking into a court room and seeing the defendant or whatever. So I think
in that way it's made it that more people will come forward to give evidence
because they know that they don't have to do it live if you like, like being
in the dock. So I think for that reason it's very good.' (Crown Court usher)
This is important, given recent government concern to improve the courtroom
experiences of all witnesses (Home Office, 2003). However, it also raised the
question of how far victims/witnesses and their families reflect a similar view-
point.
THE PERSPECTIVES OF THE CHILDREN AND THEIR PARENTS
The Children
As the parents were also called as witnesses they could not be present in the
video live link room whilst their children gave evidence. The children were
asked who was with them at this time and what it was like. Not surprisingly, they
were a little vague, but still comfortable with the situation. For example:
'Yes, it was someone from the NSPCC and then there was this lady behind
me, don't know what she's called, and I can't remember what she was
wearing, but I felt OK.' (Male 13 years)
Although they had no problems talking to the television screen, they did
consider it somewhat unusual:
193
'It felt weird just talking to the television but when you're talking to
someone else on the television it feels different. If you talk to the television
when you're not there [in the link room] it doesn't talk to you but when
someone else is there it talks to you.' (Male 13 years)
They were asked what they saw on the television screen when it showed
pictures of the courtroom:
'I could see the judge. He had this long black robe thing and he wore a wig
(giggly). He looked like a weird person, I don't know, he just looked weird
with a wig on. It didn't bother me really he just looked weird.' (Female 13
years)
Nevertheless:
'I saw the judge and two lawyers. They looked scary. The judge didn't but
the defence lawyer did. Because he did- sigh- because he did. It was just
a bit scary really.' (Female 13 years)
Consequently, they felt that actually giving their evidence was not a comfort-
able experience:
'It would have been nicer if they could have been more friendly because
they are a bit horrible. I know they're doing their job but they are a bit nasty.
It was like they were angry with me, but they didn't know me, a bit
degrading really.' (Female 13 years)
One child inadvertently saw the defendant on the television monitor while
giving evidence:
'Yes I did but only briefly. We just had to go to lunch and I just popped in
and saw the room and said hello and went again and went for lunch.' You
saw someone you did not want to see on the television screen- 'Yes I saw
the defendant because when they started asking the questions I started
crying and we went out and come in again. The judge had left the video
link on and I could see behind the person and I saw him walking back into
the courtroom.' (Female 13 years)
All the children felt that they understood most of what was going on in the
courtroom:
'Well I knew what was going on, but I didn't know half of it, but I knew
most of it.' (Male 13 years).
194
But they were unsure about whether the experience had been better or worse
than they had expected:
'I think it was a bit easier but difficult at the same time. I was really worried
before going but then when I got in there it was alright but I just wished
they were a bit more caring and sensitive.' (Female 13 years)
However, given the choice they all agreed that they would rather give evi-
dence using the remote video live link than any other method:
'In a different building because you're away from the court and you feel
like happier.' (Female 12 years)
Asked what they would say to a friend who had to give evidence in the same
way as they did, they agreed that they would tell them:
'Not to worry, everyone is very friendly, just tell the truth and you don't
need to worry.' (Female 13 years)
The Parents
Not surprisingly parents' views were much more detailed than those of their
children. They also reported feeling concern over a longer time period and
worrying about how their children would experience giving evidence:
'Terrified. Especially if they had to go to court because they might see him,
the person that hurt them, and they would be too scared to speak. That was
what I feared the most.'
They also described how their children were worried about the prospect of
giving evidence:
'She was worried that if she went to court she would see the defendant but
when she was reassured that she didn't have to, that she'd be in a different
building, then she started to get a bit better about it. That was what she
feared the most.'
Both parents and children had been given the opportunity to see the remote
video link room prior to giving evidence, and were consequently reassured:
'Yes she did, and so did I. It was good because it made her feel more at ease
on the day. I wasn't so worried about it then, because I knew that I wasn't
195
going to be there with her at the time she gave her evidence, and it made it
a lot better for her.'
The fact that both parents and children had been told what to expect when they
gave their evidence was seen as a major advantage for both parents and children:
'Yes, went through the whole process of even playing with little toys so
they could get used to what a judge looked like and the clerk. Jill and Jackie
from the NSPCC did this. It made it easier for me as well, actually, because
we could play with them at home. We had a lot of little characters,
everything. This kept them calm and they were looking forward to it in the
end. They weren't frightened at all- it was like going to be a little day out
for them. All they had to do in the end, they were so scared, and then in the
end they all thought it was great. They had the choice if the judge kept his
wig on or if he took it off, so they weren't scared.'
Nevertheless two of the parents felt that their children had found it difficult
giving evidence:
'Yes, from what I've heard she became very upset because they were very
derogatory about her and her evidence. It upsets me, but there was nothing
I could do about it, as I wasn't with her.'
And in particular had suffered under cross-examination, for example:
'I'm not really sure which was which. But I do know that with my eldest it
was a different matter because she was very tearful and had enough at the
end. They were a bit tough on her. One of the barristers, his defence I
imagine, was trying to suggest that "It wasn't him that did it was it?'' It was
actually - you know - some one else. He was tripping her, and she was
getting all very upset, because she know it was the truth, so that was a bit
unpleasant, very unpleasant.'
One of the parents confirmed that her daughter had seen the defendant:
'The only thing that she said afterwards was unfortunately the judge forgot
to switch off the video link, or switched it on too soon and she did actually
see the defendant and that's the only thing that really upset her. But she did
actually see him and we had all promised her that she wouldn't.'
And one parent had seen a relative of the defendant:
'Only on one occasion, which was in the lunchtime of the day we were
giving evidence. I gave mine then it was time for lunch and I seen the
196
convict's mother, I saw her over a roundabout with a garden kind of thing
but she didn't see us thankfully but I seen her which was a bit horrible really.
I wished they could've made them stay there in the court really. Thankfully
the children didn't see her.'
Nevertheless, all three parents interviewed agreed that giving evidence was
important for them and for the children, for example:
'She needed to give evidence. I think she coped with it quite well. She
doesn't talk to me a lot about it at home.'
The experiences of the parents can be summed up in the following reply, given
when asked to advise other parents having to undergo a similar process:
'Not be scared really, not to be scared, no one can jump out and eat you.
The whole threat of being attacked and hurt, verbally or physically, and
trapped into having to see the person who did it, because even if I was to
have had to give evidence in the court I know full well that he can't get me,
but psychologically it doesn't matter if he's got a screen or anything there
you can't cope. You can smell him, you can hear him- it's horrible. It makes
me go numb, it did. And when I went into an empty court room just the
thought of having to stand in that box, I don'think I could have done it. I
could only have done it from the TV.'
The views of the children and their parents largely echoed those of the court
professionals. They were extremely positive about the Exeter initiative, praising
the facilities and expressing relief at not having to attend court. However, the
process of giving evidence was still a daunting one. The three children we
interviewed described their concerns, which were still very real for them, while
their parents had clearly agonised over the whole process. In this respect, it was
evident that the Exeter project involved far more than new technology. The
young Witness Support Project provided support for children and parents prior
to, during and after the 'court appearance', and those involved expressed consid-
erable gratitude for the help and support they had received.
DISCUSSION
Bringing about changes in the way that evidence is given in the traditional
adversarial crown court system employed in England and Wales requires pro-
longed argument and persuasion, and this is well illustrated in respect of young
and vulnerable witnesses. Early research has shown that giving evidence at a
Crown Court is a traumatic experience for such witnesses when special provi-
sions were left to the discretion of the court (see for example Morgan and Zedner,
197
1992: Chapter 6; Speaking Up For Justice Report, 1998). It was not until the
Youth Justice and Criminal Evidence Act 1999 that witnesses under 17 years of
age at the time of the trial were deemed to be vulnerable and eligible for special
measures directions. Those in cases involving sexual abuse or violence were
considered to be in need of special protection, meaning that the primary rule is
that they will give their evidence in chief and be cross-examined using a
pre-recorded video interview or television link. Crown Court professionals that
used video link technology felt that it had become an accepted part of their work;
that it was reliable and spontaneous; had a positive effect on the witness; made
the court more sympathetic to the needs of the child witness; and that it provided
the opportunity for 'face to face' cross-examination, an important point if there
is still a suggestion amongst a minority of professionals that such evidence is
more compelling to the jury. There remains, however, a widely held view that
training in the use of this technology was poor, with no effective training in its
use since it was installed. Expertise in its use is left with the court ushers and
NSPCC staff who are required to deal with any technical problems, including
those caused by the judges who, although they controlled the video link technol-
ogy from the court, were considered to be the least efficient in operating it.
The added choice of live television links from a building outside the court
complex may help reduce the criticism that young and vulnerable witnesses are
not given sufficient choice in the way that they give their evidence (Plotnikoff
and Woolfson, 2004: p. 16), even though Home Office research carried out in
2003 indicated some improvement, with 32% of such witnesses having been
consulted, compared to 12% in 2000 (Hamlin et al., 2004). It would also provide
a comfortable environment away from the court complex, which although not
eliminating the trauma, does reduce it: an important issue considering that one
of the key 'predictors of satisfaction' for vulnerable and intimidated witnesses is
the belief that they have accurately given their evidence with the minimum of
anxiety and stress (Hamlin et al., 2004). Overall this could be of benefit, both to
the criminal justice process by encouraging young witnesses to give evidence to
a Crown Court in the first instance, and secondly to ensure that when they do so,
they give their 'best evidence'. All respondents in this research- professionals,
parents, and children - agreed that the Exeter initiative was an improvement on
other Special Measures Directions.
The conflict between the adult Crown Court system and the child witness is
still difficult to resolve. For example, although the children interviewed here
were pleased that they did not have to enter the Crown Court building or use an
unsuitable video link room to give their evidence (removing two of the issues
that earlier research has found to be a problem), they were still generally
unhappy about seeing officers of the court on the television screen, and despite
the perception of court professionals and advice to Crown Court counsel, the
children interviewed found cross-examination was a difficult process. Overall
they were unsure whether their experiences had been better or worse than they
had expected. In particular, telling strangers about what had happened to them
198
proved to be the most difficult part of the process. However, overall, they felt
that as long as they 'told the truth' then they would have nothing to fear. This
message should at least go some way to allay concerns that this initiative might
undermine the 'due process' principle. This conflict is also evident with parents,
where the fears of having their child give evidence to a Crown Court were
present long before the day in question. The most worrying issue was the thought
that the child may have had to go to the court itself to give evidence and the
possibility that they might come into contact with the defendant. Parents were
much happier when they realised that this would not happen. Having the
opportunity to see the video link rooms, and being told what to expect on the day
further reassured them. Nevertheless, they recognised that their children did not
have an easy time giving their evidence, in particular when they were cross-
examined. The other difficulty is that when parents were also witnesses in the
same court case, this meant that they were unable to remain with their children
when they gave evidence, leaving them feeling vulnerable and unable to support
their children. Despite this they agreed that they would advise other parents
faced with the same problem to allow their children to give evidence from a
video link room in a remote building and that it would be 'alright if you do that.'
The research suggests that the use of the live video link rooms situated in a
building completely separate from the Crown Court itself is a very effective
alternative method for children to give their evidence in chief and cross-exam-
ination. It is a method that could benefit both the witness and the court process,
making it easier for vulnerable witnesses to come forward to give evidence.
There is a perception that the conviction rate has increased since the availability
of this method. It might well be that consideration should be given to introducing
live video link witness centres for vulnerable and intimidated witnesses, situated
away from court complexes, giving added choice to the methods available, both
for the witness and for the courts, enhancing the likelihood of obtaining the best
possible evidence, regardless of the circumstances of the alleged offence.
NOTES
A recent stated case has underlined the fact that evidence from a person under the age of 17
years given in the form of a video recording or live television link does not violate a
'defendant's right to a fair trial' (Regina v Camberwell Green Youth Court, 2005).
2 Similar difficulties were encountered in research conducted by Plotnikoff and Woolfson (2004)
where the original target of 90 child witnesses was reduced to 50, despite the fieldwork
programme being extended by one month.
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