As the backlog of cases awaiting trial grows, Victims' Commissioner Dame Vera discusses why it is vital steps are taken to ensure children can give evidence as soon as possible to allow them to move on with their lives
The Lord Chief Justice recently said that the backlog of trials in the crown courts of England and Wales, already at record-breaking length last year, is growing at the rate of 1,000 cases a month.
Sexual offences are said to make up more than half of all Crown Court trials and many complainants in these cases are children. Meaning child witnesses will feature in a lot of Crown Court trials — but probably not for years
As long ago as 1999, s.28 of the Youth Justice and Criminal Evidence Act was passed allowing a child (or other vulnerable complainant) to have their statement videoed by the police instead of laboriously written down.
If that was done, the law provided that cross examination could be videoed too. This had to be carried out within a reasonable time, but after the defence had all the material they need, so that the process was fair.
Once done the vulnerable complainant is free to go. That is what is important.
They have given evidence and been cross examined.
Their role in the trial is over.
And their evidence has been gathered whilst their memories, notoriously short amongst the young, are fresh.
At some future date a trial will take place and the videos of both of those parts of their evidence will be played to the jury but the child will be getting on with living its life.
The pilots of this process, held in Leeds, Liverpool and Kingston Crown Courts did not show an increase in conviction rates, which might have suggested that it was hard on the defence.
What it did produce was an increase in early pleas of guilty.
Presumably defendants watched on video what their victim’s evidence would look to a jury and formed a view of its credibility.
Early guilty pleas in themselves are very desirable.
From the offender’s view can reduce a sentence – if accompanied by remorse – and from the prosecution side they save the public hundreds of thousands of pounds by avoiding unnecessary trials.
But the most important point, which is worth returning to, is that children do not lose years of their childhood, living in the shadow of a court appearance about traumatising abuse which they should be able to leave in their past.
Despite fact the legislation has been in place for more than a decade, the cross-examination element of it has only been rolled out in 18 of the 80 English and Welsh Crown Courts so far.
Speeding up and widening its use must become an urgent priority as we rebuild the criminal justice system after Coronavirus.
Whilst it is impressive that, with great effort from all sides, jury trials have restarted, there will only be a trickle of trials for the foreseeable future.
Empty courts which can’t be used for trials due to social distancing restrictions could be used to hold s.28 hearings. And barristers who have little work at this time could be employed to cross examine hundreds of vulnerable children and send them on their way.
Much-needed therapy for children is often deferred until after the trial, through worry that what the child discloses to their counsellor might be given to the defence. Section 28 also allows children to testify while memory is fresh, then have therapy to deal with their trauma when treatment is most effective, at an early stage.
In meetings where I have raised the ambition of accelerating and spreading the use of s.28 everyone has agreed.
I am frequently told that “work is underway”.
A “good practice brief” was created to take account of Covid19 issues, after a successful s.28 cross examination in Newcastle Upon Tyne.
But there have been just 300 recorded cross examinations of this kind in the past month – and there are areas where none have happened. There could – and should – be many more.
I remain unsure as to why there have not been a lot more since all this “work underway” has been going on at least since I raised the issue in late March.
It takes political will to see this opportunity, appreciate that it would be a huge error to let it pass and immediately change gear to prioritise it across all the 18 current courts – and to extend it to the rest.
In a criminal justice system which could have given children speedy protection run the risk instead of re-traumatise them.
If we don’t act urgently, we will rightly be blamed by a generation of child victims for prolonging their agony.