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Child Abuse (non-sexual) - legal guidance

Revised: 6 September 2017

Introduction

Child Abuse - legal guidance

This guidance has been developed to assist prosecutors to provide advice to the police, to build cases and to prosecute cases of non-sexual child abuse. That is, cases against children of violence, cruelty, neglect and abduction.

Offences involving Child Sexual Abuse or Exploitation are contained under separate legal guidance.

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Definitions

Age - Anyone under 18 is defined as a child or young person. This status and entitlement to services or protection is not changed even if a child or young person is 16, is living independently or is in further education, or is a member of the armed forces or is in hospital or in custody in the secure estate.

Abuse - This is a form of maltreatment of a child or young person. Someone may abuse or neglect a child or young person by inflicting harm, or by failing to prevent harm. Children or young people may be abused in a family, or in an institutional or community setting by those known to them or, more rarely, by others (e.g. via the internet). They may be abused by an adult or adults, or another child or young person or children or young people. SeparateĀ guidelines are available for in the legal guidance Youth Offenders.

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Flagging

Once a case is considered by the CPS, any papers will be uploaded onto the Case Management System (CMS) and will be flagged to indicate that there is a child or young person victim or witness.

In support of the Young Witness Initiative (YWI), a flag on CMS must be selected for cases that involve victims or witnesses aged 10 and below. From 1 April 2015, all cases involving witnesses and victims under the age of 10 years old are subject to the Protocol between the Association of Chief Police Officers, the Crown Prosecution Service and Her Majesty's Courts & Tribunals Service to Expedite Cases Involving Witnesses Under 10 Years. This is a protocol is to ensure that these cases are fully expedited.

Any criminal offence which falls within the criteria set out in the Working Together to Safeguard Children document and involves a victim under the age of 18 should be flagged as "child abuse".

Child abuse includes physical, emotional and sexual criminal offences, as well as neglect, of a child. Such cases would normally include, for example:

  • parental assault where reasonable chastisement is not a defence;
  • sexual offences;
  • child homicides;
  • child cruelty, including neglect;
  • child prostitution;
  • harassment;
  • abandonment of a child;
  • forced marriage involving an under 18 year-old;
  • child pornography;
  • trafficked children;
  • familial abduction; and
  • historical child abuse where victim is now an adult.

Cases that would not normally be expected to be flagged include:

  • motoring offences where the child has been injured or killed;
  • medical negligence; and
  • property offences

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The Victims' Code

The Code of Practice for Victims of Crime (the Victims' Code) sets out the minimum standard of service and aims to ensure that victims of crime are provided with timely, accurate information about their case at all stages of the criminal justice process. Prosecutors should be aware of these minimum obligations.

The nature and sensitivity of child abuse cases will inevitably mean that prosecutors (and the police) should go beyond the minimum requirements of the Victims' Code where appropriate to do so, and this should be agreed, recorded and actioned by the prosecutor and the police in the case. Guidance in relation to victims and witnesses can be accessed through the following links:

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Context and circumstances of child abuse (non-sexual)

Non-sexual child abuse covers a range of offending behaviour and types of offenders. Prosecutors should have regard to the context and circumstances in which the offending is alleged to have taken place, as this will determine how the evidential case should be built and what are relevant lines of enquiry.

Children or young people who have been in the care of, or have come to the attention of, social services will inevitably have a great deal of information about them contained within social services records compared to other children or young people. Every episode of 'bad' behaviour, even of the most minor nature, is likely to be a matter of record. Most children misbehave; but not every child has their misbehaviour recorded. Victims who are, or have been, in the care of the social services should not be disadvantaged in the criminal process by this fact, and prosecutors should be prepared to address this issue as part of the presentation of the prosecution case.

Prosecutors should also have regard to whether there is any credible third party evidence to suggest that the complainant has malicious intent to make a false allegation. However, prosecutors should guard against looking for 'corroboration' of the victim's account or using the lack of 'corroboration' as a reason not to proceed with a case.

Prosecutors must check with the police and the CPS Case Management System (CMS) to see whether there are any pending allegations involving the same victim or suspect(s); the check is to be endorsed on the file record to form part of the formal review. If there are pending allegations then the details should be obtained to see if there are any links or similarities to the on-going case.

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Offences

Causing or allowing death or serious physical harm

Section 5 of the Domestic Violence, Crime and Victims Act 2004 created the offence of causing or allowing the death a child or vulnerable adult. The Section was amended by the Domestic Violence, Crime and Victims (Amendment) Act 2012. The amendment came into force on 2 July 2012 and extended the offence in section 5 to cover cases of causing or allowing a child or vulnerable adult to suffer serious physical harm.

This stand-alone offence imposes a duty upon members of a household to take reasonable steps to protect children or vulnerable adults within that household from the foreseeable risk of serious physical harm from other household members.

The offence is made out where evidence exists to establish the following elements:

  • a child or vulnerable adult ("V") has died or suffered serious physical harm;
  • the death or serious physical harm was the result of an unlawful act, course of conduct or omission of a person ("D") who was a member of the same household as V and who had frequent contact with V;
  • there existed at the time of death a significant risk of serious physical harm being caused to V by the unlawful act of any member of that household and either:
    1. D was the person whose unlawful act caused V''s death or serious physical harm; or
    2. D was, or ought to have been, aware of that risk and failed to take such steps as he or she could reasonably have been expected to take to protect V from that risk of serious physical harm; and
    3. the death or serious physical harm occurred in circumstances of the kind that D foresaw or ought to have foreseen.

Note: 'significant' does not mean 'more than minimal' as it would for manslaughter but carries its ordinary meaning: R v Mujuru (2007) EWCA Crim 1249.

The prosecution does not have to prove which of the two possible alternatives, (a) or (b) above, applies. In other words, D is equally liable to conviction whether he or she was the perpetrator of the act that actually caused V's death or serious physical harm or simply failed to protect V from a foreseeable risk of serious physical harm from another member of the household who had frequent contact with V. It will quickly be appreciated how this dual basis for criminal liability remedies one of the main perceived difficulties with the law relating to other possible charges such as murder or manslaughter.

In every case the prosecution must prove that V's death or serious physical harm occurred in circumstances of the kind that D foresaw or ought to have foreseen. This requirement protects, from criminal liability, those whose dependants die from unlawful acts that had nothing to do with the foreseeable risk of harm within the household, e.g. where V is at risk of serious harm from an abusive parent but is subsequently killed by a friend of the family who had until then little contact with the household.

Further, section 5(6) DVCV Act confirms that in this context "serious" harm is to be equated with the level of physical harm that amounts to grievous bodily harm under the Offences against the Person Act 1861. The risk that must be foreseen relates to that level of harm and the risk itself must be significant rather than minimal or fanciful.

The section also contains definitions of the terms "child" and "vulnerable adult" amongst others. The definition applied to vulnerable witnesses is wider than that applied to the same phrase in the Youth Justice and Criminal Evidence Act 1999.

However, it is clear from the wording of section 5 that the test of what could be foreseen is not purely subjective but also contains a "reasonableness" dimension. In determining potential liability the proper test to be applied is "what would have been reasonable for this defendant to have foreseen?" Therefore, a defendant may be fixed with knowledge if the nature of the risk was such that he or she should reasonably have been aware of it even if they claim not to have been.

Frequent contact could include family members or carers, but is not confined to that group.

Household is defined in section 5(4)(a) DVCV and will be given its ordinary meaning. It is not likely to include care homes or nurseries where a child is looked after with a number of others. A paid or voluntary domiciliary carer or housekeeper or an au-pair or similar may fall under the definition, if it would be reasonable in the circumstances. Under the Act, a person may be regarded as a member of the household for the purpose of this offence if they visit so often and for such periods of time that it is reasonable to regard that person as a member of the household. Membership of a household will be for the courts to determine on a case by case basis.

Relevant Home Office and Ministry of Justice Circulars are:

Sentencing

It is an offence triable only on indictment.

Where death occurs the offence carries a maximum sentence of 14 years' imprisonment or a fine, or both. Although this section creates an offence, there is a clear link with manslaughter which should influence sentencing R v Ikram (Abid) [2008] EWCA Crim 586.

Where serious physical harm occurs, the offence carries a maximum sentence of 10 years' imprisonment or a fine, or both.

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Child cruelty, neglect and violence

Section 1(1) Children and Young Persons Act 1933 was amended on 3 May 2015, by Part 5 Section 66 of the Serious Crime Act 2015 to update and modernise some of the language. The amended version provides that the offence is made out if:

  • a person who has attained the age of sixteen years;
  • who has responsibility for any child or young person under that age;
  • willfully (i.e. intentionally or recklessly - see R v Turbill and Broadway [2013] EWCA Crim 1422;
  • assaults, ill-treats (whether physically or otherwise), neglects, abandons or exposes him, or causes or procures him to be assaulted, ill-treated (whether physically or otherwise), neglected, abandoned, or exposed;
  • in a manner likely to cause him unnecessary suffering or injury to health (whether the suffering or injury is of a physical or a psychological nature).

The offence covers a variety of conduct that can compendiously or separately amount to child cruelty. The four generally accepted categories are assault and ill-treatment, failure to protect, neglect and abandonment.

The behaviour necessary to establish the ill-treatment limb of the offence can be non-physical (for example a sustained course of non-physical conduct, including, for instance, isolation, humiliation or bullying, if it is likely to cause unnecessary suffering or injury to health).

Section 1(2) provides that a person is deemed to have neglected a child or young person in a manner likely to cause injury to his health in either of the following situations:

  1. Where a parent or person legally liable to maintain a child fails to provide adequate food, clothing, medical aid or lodging for the child or having been unable to provide the above failed to take steps to procure it to be provided; or
  2. Where the cause of death for an infant under 3 years is suffocation (not being caused by disease or the presence of a foreign body in the throat or air passages) while the infant was in bed with some other person who has attained the age of 16 years and where that other person was under the influence of drink or a prohibited drug either when he went to bed or at any later time before the suffocation. Part 5 of the Serious Crime Act 2015 (Section 66) defines a "prohibited drug" for the purposes of section 1(2)(b); furthermore, it expands the reference to suffocation occurring in a bed, to now include any kind of furniture or surface used for the purpose of sleeping.

This is often referred to as "overlay". The Royal College of Pathologists published Multi-agency guidelines in November 2016 for care and investigation in cases of "Sudden unexpected death in infancy and Childhood".

Charging considerations

The following considerations may be of assistance when deciding whether to charge a person contrary to the Section 1 offence or an offence contrary to the Offences Against the Person Act:

  • A conviction for the section 1 offence will make it clear on the offender's record that it is an offence involving a child victim, compared with a conviction contrary to the Offences Against the Person Act, which would not.
  • A specific charge of assault is likely to be more appropriate where extreme violence is used and serious injury sustained, sufficient to support a charge of wounding/causing grievous bodily harm with intent. Definitive sentencing guidelines for assault are available from the Sentencing Council.
  • Child cruelty/neglect offences are particularly relevant where the behaviour has occurred over a period of time. The type of cruelty should be chosen with care. It may be preferable to have two or more alternative allegations in order that the conduct complained of is appropriately described.
  • In some cases, the circumstances might warrant charges of both assault and section 1. For example, regular assaults and cruelty over a period of time, culminating in a child being pushed down the stairs and sustaining serious injuries. Each case can only be considered on its own facts and merits.
  • In relation to Sentencing Dangerous Offenders, section 1 of the Children and Young Persons Act and section 18, section 20 and section 47 of the Offences Against the Person Act are all specified violent offences within Schedule 15 to the Criminal Justice Act 2003.

Sentencing

The offence is triable either-way with a maximum penalty of 10 years imprisonment on indictment.

Evidence of emotional and behavioural consequences of child abuse is frequently presented by the following characteristics:

  • impaired capacity to enjoy life - abused children often appear sad, preoccupied and listless;
  • psychiatric or psychosomatic stress symptoms, for example, bed-wetting, tantrums, bizarre behaviour, eating problems etc.;
  • low self-esteem - children who have been abused often think they must be worthless to deserve such treatment;
  • school learning problems, such as lack of concentration;
  • withdrawal - many abused children withdraw from relationships with other children and become isolated and depressed;
  • opposition/defiance - a generally negative, uncooperative attitude;
  • hyper-vigilance - typified in the "frozen watchfulness" expression;
  • compulsivity - abused children sometimes compulsively carry out certain activities or rituals; and
  • pseudo-mature behaviour - a false appearance of independence or being excessively "good" all the time or offering indiscriminate affection to any adult who takes an interest.

The Overarching Principles: Assaults on children and cruelty to a child - Definitive guideline on sentencing is available from the Sentencing Council.

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Child abduction

The offence of child abduction is regulated by the Child Abduction Act 1984 as amended by the Children Act 1989.

Section 1 of the Child Abduction Act 1984 makes it an offence if a person connected with a child under the age of 16 takes or sends the child out of the UK without the appropriate consent. 'Connected with' is defined in section 2; it includes a parent, guardian or any person who has custody of the child.

The case of R (Nicolaou) v Redbridge Magistrates' Court [2012] EWHC 1647 (Admin) held that no offence is committed under this section where the appropriate consent is given for a child to be removed from the UK for a definite period but the child is kept out of the country after the period has expired and the appropriate consent no longer exists. This was a judicial review case.

The DPP's consent is required for all offences under section 1 of the Child Abduction Act 1984; section 4(2) of the Act. Additionally DPP consent is required for a prosecution under section 5; the offence of kidnapping a child under 16 by a person connected with the child.

Section 2 of the Child Abduction Act 1984 makes it an offence for a person that is not connected with a child to unlawfully take or detain a child under the age of 16.

Sentencing

Child abduction is an either-way offence. The maximum penalty on indictment is seven years' imprisonment.

Further information, including links to the Hague Convention and information regarding the relationship between civil and criminal proceedings can be accessed via the Gov.uk website entitled International Child Abduction and contact Unit.

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Children placing themselves at risk of harm - Child Abduction Warnings

In the case of R v Wilson [2013] EWCA Crim 2544 the circumstances of whether a child had put herself in a position of harm was the issue in that it had been initially suggested that the child had been a "predator". The Court of Appeal disagreed and far from it being any mitigation that, on the offender's account, the victim had initiated what happened, it was in fact to be taken as an aggravating factor As the defendant had taken advantage of the victim's vulnerability.

Child abduction warnings are a tool to prevent harm but can also be used as a case building tool. Formerly known as Harbourer's Warning Notices, they are aimed at tackling those incidences where young people, under the age of 16 years (or under 18 if in local authority care), place themselves at risk of significant harm due to their associations and the forming of inappropriate relationships. Sometimes this is with individuals who are much older than themselves.

The aims of the Notices are as follows:

  • To reduce repeat incidences of such children being missing from the care of those responsible for their welfare.
  • To reduce the risk that such children are exposed to.
  • To set out a clear, graduated and proportionate response to such cases.
  • To set out a clear procedure for the issue and audit of Child Abduction Warning Notices so that they are evidentially viable and sound in terms of potential prosecution.
  • To adopt a problem solving approach to reducing instances of missing from home.

There is no statutory or other legislative provision dealing specifically with the issue of Child Abduction Warning Notices and a breach of a Notice is not a criminal offence. However, the Notices are part of an administrative process and if issued properly, can provide evidence to support the prosecution of other criminal offences and/or to support civil proceedings such as ASBOs, evictions or injunctions.

There are two types of Child Abduction Warning Notices:

  • one for a child under 16, who is not in the care of the local authority and
  • one for a child under 18, who is in the care of the local authority under section 31 Children Act 1989.

It is essential that the correct Notice is issued; if not, the Notice will lose its value both in evidential terms and as a safeguarding tool. The issue of a Warning Notice should be viewed as a protective and proactive measure to safeguard a young person. If there is evidence that the terms of the Warning Notice have been contravened. For example, the child has been seen with the suspect or is reported missing and is then found with the suspect after a Warning Notice has been given - the subject can be arrested and interviewed on suspicion of having committed an offence under the relevant legislation.

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Kidnapping

Kidnapping is a common law offence comprising the taking or carrying away of one person by another, by force or fraud, without the consent of the person so taken or carried away and without lawful excuse.

The absence of the child's consent will be material in any kidnapping case, whatever the child's age. Younger children will not have the understanding or intelligence to give consent, so that the absence of consent will be a necessary inference from the child's age. With older children, it must be a question of fact for the jury whether the child has sufficient understanding and intelligence to give consent.

The consent of the DPP is required to charge an offence under section 5 of the Child Abduction Act 1984 if it was committed against a child under 16 by a person connected with the child (within the meaning of section 1 of the Act)

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Defence of reasonable punishment

Section 58 of the Children Act 2004 provides that reasonable punishment is not a defence to offences under section 47, section 20, and section 18 of the Offences Against the Person Act or to section 1 of the Children and Young Persons Act 1933. Where the defence of reasonable punishment (section 58 of the Children Act 2004) falls for consideration, prosecutors must have regard to the case of A v UK (1999) 27 EHRR 611. Unless the injury is transient and trifling and amounted to no more than temporary reddening of the skin, a charge of ABH, for which the defence does not apply, should be preferred.

Following the decision in A v UK and the enactment of Section 58 of the Children Act, the level of severity of the assault in A v UK will merit a charge of ABH. The Court of Appeal in the case of R v H, The Times 17 May 2001 adopted the guidance set out in the case of A v UK and accordingly extended the factors to be taken into consideration when considering a defence of reasonable punishment. Therefore, in such a case, limited to common assault by section 58, the following factors will assist in determining whether the punishment in question was reasonable and moderate:

  • the nature and context of the defendant's behaviour;
  • the duration of that behaviour;
  • the physical and mental consequences in respect of the child;
  • the age and personal characteristics of the child;
  • the reasons given by the defendant for administering the punishment.

The question whether an assault constitutes common assault or actual bodily harm is discussed in separate legal guidance entitled Offences against the person - charging standard.

The degree of harm, will in many cases be more than just the level of injuries sustained. R v Moore [2015] EWCA Crim 1621 highlights the importance of dealing effectively with cases by preferring and prosecuting charges that appropriately reflect harm and culpability and allows the court to impose a sentence appropriate to the circumstances of the case. The right of reasonable punishment by a teacher has been severely restricted by section 548 Education Act 1996 which saw the abolition of corporal punishment for the majority of school children. Section 93(1) of the Education and Inspections Act 2006 enables a member of staff of a school to use, in relation to any pupil at the school, such force as is reasonable in the circumstances for the purpose of preventing the pupil committing an offence, causing personal injury to, or damage to property of, any person or engaging in any behaviour prejudicial to the maintenance of good order and discipline at the school or among its pupils.

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Other offences

Death of a child and Infanticide

Guidance on charging and prosecuting offences involving the death of a child can be found in the Homicide: Manslaughter and Murder legal guidance. The guidance includes the offence of Infanticide, contrary to section 1 Infanticide Act 1938, applicable where a woman causes the death of a child under 12 months in circumstances where her balance of mind was disturbed by reason of her not having recovered from the effects of giving birth to the child.

Destruction of a foetus

Section 1 of the Infant Life (Preservation) Act 1929 makes it an offence to destroy the life of a child capable of being born alive.

The Attorney General's Reference No 3 of 1994 [1998] A.C. 245 clarified the law in relation to the circumstances where a person attacked a pregnant woman intending to do her grievous bodily harm and the child having been born prematurely, subsequently died as a result of the attack. The House of Lords held that the attacker would be guilty of manslaughter in relation to the death of the child but not murder. The case did not involve any intent to cause harm to the unborn child, only to the mother.

Assault

Guidance on charging and prosecuting offences of assault can be found in the Offences against the Person legal guidance.

Non-accidental Head Injuries

Guidance on charging and prosecuting offences of Non-Accidental Head Injury Cases (NAHI), formerly referred to as Shaken Baby Syndrome, can be found in the legal guidance Non Accidental Head Injury Cases (NAHI, formerly referred to as Shaken Baby Syndrome [SBS]) - Prosecution Approach.

Concealing the body of a child

Section 60 of the Offences Against the Person Act 1861 makes it an offence to conceal the birth of a child, that is, it is an offence for any person to conceal the dead body of a child after its birth.

Procuring an abortion

Section 58 of the Offences Against the Person Act 1861 makes it an offence to administer drugs or use instruments to procure an abortion. This provision is to be to be read together with the Abortion Act 1967.

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Taking a child abroad

Where parents have taken or are intending to take children tto join what has become known as the "self-proclaimed" IS, there are issues arising in relation to what offences could potentially be committed and what evidence would be required to prove the offence to a jury.

Which CPS office will prosecute?

If there is evidence that the parents have committed any terrorism offences, the Counter Terrorism Division (CTD) of the Special Crime and Counter Terrorism Division will prosecute the terrorism offences and any related child neglect/abduction charges.

In the absence of any terrorism offences, these cases would not be prosecuted by CTD and the relevant CPS Area would deal with them.

Potential offences

The offences most likely to be considered are:

  • Child cruelty, neglect and violence contrary to Section 1 Children and Young Persons Act 1933
  • Child abduction contrary to section 1 of the Child Abduction Act 1984.

CPS Guidance in relation to these offences can be found in the sections entitled Child cruelty, neglect and violence and Child abduction.

Issues to consider

Jurisdiction
Section 1 Children and Young Persons Act 1933, as amended by Part 5 Section 66 of the Serious Crime Act 2015

There is no extra territorial jurisdiction for offences contrary to Section 1 Children and Young Persons Act 1933, as amended by Part 5 Section 66 of the Serious Crime Act 2015.

Therefore in order to charge an offence contrary to this section, any assault and ill-treatment, failure to protect, neglect and abandonment or any attempt to commit such an offence must have taken place in this jurisdiction.

Section 1 of the Child Abduction Act 1984

This section makes it an offence if a person connected with a child under the age of 16 takes or sends the child out of the UK without the appropriate consent. There is therefore extra territorial jurisdiction.

Intention

Where a parent believed to be intending to travel with a child or children, for example to Syria, is arrested before leaving the UK or alternatively, where the parent is stopped before entering Syria and returned to the UK, it will be necessary to prove that their intention is to take the child or children to Syria and that such travel would result in willfully (i.e. intentionally or recklessly) exposing the child or children to unnecessary suffering or injury to health (whether physically or otherwise).

Examples of supporting evidence of overall intention and attempt to travel to Syria include:

  • The reason for the decision to travel
  • Travel in a clandestine manner designed to hide their real and intended destination
  • Where they went and stayed and what they did before entering Syria
  • The child or children's account of what had happened to them since leaving their UK home.

Such evidence may be obtained from family and friends, from digital media and communications data and via Letters of Request (LOR) from authorities abroad.

It is also necessary to prove that the intended travel to Syria would expose the child or children to unnecessary suffering or injury to helth (whether physically or otherwise). Evidence that the area in Syria where the parent intended to take the child or children is an unsafe area setting out the degree of danger present can be provided by experts. Evidence from the Foreign Office relating to the specific area involved will be sufficient for charging but expert evidence would be required for trial.

Extradition

Extraditing persons or otherwise removing children from "self-proclaimed" IS held territory in Syria is not a viable option.

If extradition is sought on child cruelty or abduction type offences from Turkey, or another State, dual criminality would need to be established. The International Justice and Organised Crime Division (IJOCD) which has the Extradition Unit can assist in these circumstances.

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Case Building

The Victim's Statement and Achieving Best Evidence Interview (ABE)

Particular care should be given when deciding how to take the victim's statement. A video recorded interview (and subsequent use of the live link in court) is often the most appropriate means but may not always be so. For example, if the abuse of the victim has been filmed and the victim does not want to be videoed as a consequence.

Prosecutors should refer to the latest edition of the Achieving Best Evidence: Guidance on Interviewing, Victims and Witnesses and Guidance on using Special Measures ("The ABE guidance").

The assistance of a Registered Intermediary should be considered at this stage. Further details regarding Registered Intermediaries are contained in the Special Measures guidance.

The whole recording of the video evidence must be viewed for the purposes of review and before the tape is released to the defence or a third party. Prosecutors should ensure no personal information is released inappropriately to defence e.g. an unknown address or telephone number.

Witnesses are entitled to see a copy of their statement or view their recorded interview before the trial. In the case of video recorded evidence this should be done before the trial (i.e. not immediately before giving their evidence over the live link). Further detail can be found in legal guidance on Safeguarding Children as Victims and Witnesses.

Prosecutors should also be aware of s. 28 of the Youth Justice and Criminal Evidence Act 1999 which allows for pre-recorded cross examination. The key aims of section 28 are for the cross-examination to happen earlier in the process than the trial, and to improve the quality of evidence provided by the witness. Pre-trial cross-examination helps improve memory recall of witnesses because evidence is given closer to the time of the offence. It also reduces the distress experienced by some witnesses by not having to give evidence to a full courtroom at trial.

This provision is likely to be of particular assistance to young witnesses. Section 28 is currently being piloted with expected roll out to all Crown Courts in summer 2018.

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Counselling and therapy

The CPS guidance on the Provision of Therapy for Child Witnesses Prior to a Criminal Trial is clear that the best interests of the victim or witness are the paramount consideration in decisions about therapy. There is no bar to a victim seeking pre-trial therapy or counselling and neither the police nor the CPS should prevent therapy from taking place prior to a trial. Prosecutors should be familiar with the content of the CPS guidance on pre-trial therapy so that they can advise police and witnesses on the correct approach.

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Medical and scientific evidence

The qualifications and field of specialism of the expert is of great importance. Consultant paediatricians would normally examine a child who is alleged to have suffered abuse. Other medical experts may be required for certain types of injury e.g. an odontologist to examine a bite mark.

In W (Children) [2009] EWCA Civ 59 [2009] EWCA Civ 59 the Court of Appeal considered a number of cases in which second medical opinions had significantly affected outcomes. In one case, doctors had deferred to the consultant paediatric neuro-radiologist who advised the injuries were non-accidental. Only after a care order had been made did the parents obtain a second opinion, as a result of which the Court of Appeal ordered a re-hearing at which the parents were vindicated.

In W (Children) Lord Justice Wilson said "The moral which I draw from this case and will never forget is that a hypothesis in relation to causation of a child's injuries must not be dismissed only because such causation would be highly unusual and that, where his history contains a demonstrably rare feature, the possible nexus between that feature and his injuries must be the subject of specialist appraisal at an early stage."

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Non-recent Cases

Prosecutors should consider the Guidance on the public interest in prosecuting non-recent cases where a nominal penalty is the likely outcome.

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Court Issues

Case presentation in court

There is now widespread recognition that cross-examination of very young children is a specialist skill; there is a plethora of useful guidance and Court of Appeal authority to assist the advocate. Comprehensive advice can be found on all aspects of case management and preparation for vulnerable victims and witnesses in the Advocates' Gateway and prosecutors should read and be familiar with its content, along with the Judicial College Bench Checklist for Young Witness Cases.

Cases involving children or young people should be heard as soon as possible, with delay for child victims kept to 'an irreducible minimum'. Prosecutors should refer to the latest version of the Criminal Procedure Rule and Criminal Practice Directions. Young witnesses should not be kept waiting at court and should know that the time given to attend court is when they give evidence so that they are not kept waiting around.

The CPS Special Measures legal guidance contains a section on ground rules hearings.

Ground rules hearings are recommended in any young witness trial but are required in any intermediary cases. Issues include nominating the lead defence counsel who will put questions to the victim in cases with more than one defendant and the length of time given to cross examination. The ground rules hearings should take place in advance of the day of the trial so that everyone, particularly the victim, is aware of what to expect and how long the proceedings in court should take. Where ground rules on cross-examination are necessary "there is a duty on the judge to ensure that limitations are complied with": see R v Wills [2011] EWCA Crim 1938.

Prosecutors should assist the court in dealing with questioning of the victim or witness. The Court of Appeal has addressed restrictions on cross examination:

  • where there is a risk of a child acquiescing to leading questions (R v B [2010] EWCA Crim 4)
  • on 'putting your case' to a child (R v Wills [2011] EWCA Crim 1938 and R v E [2011] EWCA Crim 3028)
  • The Advocate's Gateway contains a summary of relevant case law.

For further information, see the Advocate's Gateway Toolkit on ground rules hearings. The Toolkit refers to the case of R v Lubemba [2014] EWCA 2064 in which the Court of Appeal gave guidance as to measures a trial judge might legitimately take to protect a vulnerable witness without impacting adversely on the right of a defendant to a fair trial.

Criminal and family proceedings

Full guidance on criminal and family proceedings can be found in the legal guidance on Child Sexual Abuse, which also includes guidance on third party material and handling requests for local authority material and the use of a local or national protocol.

A link is provided to the 2013 Protocol and Good Practice Model Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings.

Guidance on obtaining material relating to Family Court proceedings is also available within existing guidance on Child Sexual Abuse.

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Information sharing between agencies

Information from the Local Authority to the Police

Working Together to Safeguard Children - A guide to inter-agency working to safeguard and promote the welfare of children (2015) provides guidance about sharing information about children in England (and there is separate similar guidance applicable in Wales). In deciding whether there is a need to share information, professionals need to consider their legal obligations, including whether they have a duty of confidentiality. Where there is such a duty, the professional may lawfully share information if consent is obtained or if there is a public interest of sufficient weight. Where there is a clear risk of significant harm to a child, the public interest test will almost certainly be satisfied. Lack of consent to share information is irrelevant where there is a clear concern about a risk of harm to the child or young person.

Prosecutors must be proactive in highlighting to police officers information which is of concern to them. If it is not possible to prosecute a case, but information available causes concern to the prosecutor, they should ensure that this is brought to the attention of the relevant investigating police officers, so that they can in turn share this with the relevant agencies including Local Authorities.

Information from the Police to the Local Authority

Prosecutors and investigators will need to ensure that disclosure does not prejudice the criminal investigation and prosecution. Material disclosed to the Local Authority will be shared with all parties to the Family Court proceedings and the parties are likely to include the defendant(s) and witnesses in the criminal case.

In these circumstances the police can indicate that disclosure will only be made once the Local Authority obtains a Family Court Order limiting disclosure to named individuals. Additionally, it may be possible to delay disclosure of prosecution material to the Local Authority until a later date (although, other than in exceptional circumstances, the existence of criminal proceedings is not a reason to adjourn Family Court proceedings).

Prosecutors should consult with the police where the request for disclosure of prosecution material is made to the CPS.

Prosecutors who receive relevant cases from the police should check with the police that they have complied with their statutory duties to share information with Local Authorities and any other relevant bodies. CPS case files should not be closed until this confirmation is received.

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