Child Abuse: Guidance on Prosecuting cases of Child Abuse

Updated November 09

Introduction
General Principles
Achieving Best Evidence (ABE) video interviews
Statutory and Common Law Offences
Indictments
Issues commonly arising in child abuse cases
Practice, Procedure and Case Management
Advocacy
- Appropriate questioning
Sentencing and Ancillary Orders
- Sentencing
- Court Orders
Annexes
Annex A - Multi agency definition of abuse
Annex B - Video Security
Annex C - Rape Specialists Standard
Annex D - Rape Cases in the Youth Court Protocol
Annex E - Rape Checklist
Annex F - Lessons from Baby P case and the Lord Laming Review

Never losing sight of the child
Lord Laming stressed the importance of placing the child at the centre of what we do. That means understanding the perspective of the child, listening to the child and never losing sight of the child.

The Protection of Children in England: action plan - The Government's response to Lord Laming.

Introduction

The purpose of this guidance is to provide detailed practical and legal guidance to prosecutors dealing with child abuse cases.

It is not the purpose of this guidance to reiterate the detail of generic guidance contained elsewhere e.g. bad character. Where a reference is made to such guidance, a link will usually be provided.

This guidance should be read in conjunction with the CPS guidance Victims and Witnesses: Safeguarding Children Guidance on Children as Victims and Witnesses, and Children and Young People CPS policy on prosecuting criminal cases involving children and young people as victims and witnesses.

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General Principles

Standards

The 2008 HMCPSI report A Second Review of the Role and Contribution of the Crown Prosecution Service to the Safeguarding of Children; confirmed that the role of the CPS in safeguarding children involved child victims, child witnesses and young persons before the court.

Examples given of our role included:

fulfilment of the Service's stated principles of expedition, sensitivity and fairness in cases involving allegations of child abuse
high standards of advice, decision-making, case preparation, advocacy and witness care in child abuse cases and others involving children as victims and
consideration of the use of children as witnesses: the care afforded to them and the use of special measures to enable them to give evidence in the best way possible in terms of the quality of their evidence and reducing trauma to them.

Prosecutors should adopt the following key principles in cases of child abuse:

Expedition

Delay can cause unnecessary distress to the child witness and adversely affect the quality of the child's evidence.

Cases should be expedited through the court process where possible, particularly when the child is very young. The Court of Appeal in R v Malicki [2009] EWCA Crim 365 said cases involving such young complainants must be fast-tracked. The proper administration of justice requires it. It is the responsibility of all concerned prosecution and defence to bring the need for expedition to the attention of the court (and we refer both to the magistrates' court and to the Crown Court because expedition is needed at all stages of the procedure) and it is the responsibility of the court to ensure that such expedition is provided.

Steps should also be taken to ensure the prosecution team do not allow cases to drift at the investigative stage where, for example, pre-charge advice has been sought and follow up actions requested. Such drift can endanger the child who has not yet been taken to a place of safety and undermine the ability of the very young witness to give evidence at a later date at court.

Sensitivity

Child abuse cases tend to require particular sensitivity because of the nature of the allegations and the emotional impact on the child and his/her family. All procedures available to assist a child witness to give their best evidence should be used. For example, focussed and concise ABE interviews, a range of special measures and witness support.

Fairness

When evaluating the evidence of adult and child witnesses, artificial hurdles should not be introduced in respect of the child's evidence. Evidence is no less reliable than that of an adult simply because it comes from a child. Corroboration is no longer required. Child witnesses should not have to satisfy some unspoken test simply because they are children.

Definition of child

"Child", for the purpose of this guidance, means a person under the age of 18 years in accordance with the definition contained in the United Nations Convention on the Rights of a Child and the Children Acts 1989 and 2004. The relevant date for establishing the child's age is the date of the offence and not the date on which the defendant is charged. Prosecutors should be aware that the definition of "child" varies in different statutes.

Definition of child abuse

The general purpose of having a definition is to establish a framework within which policies for handling such cases can be developed and monitored and to enable a wide variety of professionals coming into contact with children to identify a range of actions or circumstances which may be potentially abusive to children.

Working Together to Safeguard Children A guide to inter-agency working to safeguard and promote the welfare of children 2006 defines child abuse as:

Abuse and neglect are forms of maltreatment of a child. Somebody may abuse or neglect a child by inflicting harm, or by failing to act to prevent harm. Children may be abused in a family or in an institutional or community setting, by those known to them or, more rarely, by a stranger. They may be abused by an adult or adults, or another child or children.

The definition goes on to give examples of neglect, physical, sexual and emotional abuse (See Annex A). While this is the multi-agency definition of child abuse, not all of the behaviour contained in the definition will amount to a criminal offence.

CPS definition for CMS flagging purposes

The definition of child abuse as described by other agencies is wide. For the purposes of flagging on CMS, a definition is currently under discussion and will be notified to Areas once agreed. In the meantime, for the purposes of CMS flagging, the following types of cases will generally tend to fall within the category of child abuse:

The victim is under 18; the nature of the offence involves sex, violence, cruelty or neglect, abduction or kidnapping; the age of the offender is immaterial.

Code for Crown Prosecutors

The Code for Crown Prosecutors must be followed in all criminal cases including those involving the abuse of children. At paragraphs 21-38, the CPS guidance Victims and Witnesses: Safeguarding Children Victims and Witnesses makes reference to the Code in cases involving children.

Concurrent proceedings

Concurrent proceedings may be taking place. For example care proceedings or disciplinary proceedings. Recent changes in civil court timetables have led to family proceedings often taking place before the criminal proceedings have been concluded. Timely and effective liaison with our civil counterparts is required to ensure that: neither set of proceedings is compromised; information is appropriately shared; consistent decisions are made; and better outcomes for children can be achieved.

This is considered in more detail in Victims and Witnesses: Safeguarding Children as Victims and Witnesses and in the publication Related Family and Criminal Proceedings - A Good Practice Guide.

Local Safeguarding Children Boards (LSCB)

The Children Act 2004 introduced Local Safeguarding Children Boards which replaced the Area Child Protection Committees. Membership is determined by statute. Permanent members, for example the local authorities and the police, are under a duty to safeguard children as well to investigate and prosecute child abuse. The CPS is not a permanent member but may attend meetings if invited to do so. Involvement of CPS Areas with their LSCBs is strongly recommended, whether via Local Criminal Justice Boards, or direct. See Annex 2 of Victims and Witnesses: Safeguarding Children as Victims and Witnesses.

Independent Safeguarding Authority (ISA)

In January 2008, the ISA was established by the Safeguarding Vulnerable Groups Act 2006 to prevent unsuitable people from working with children and vulnerable adults. It became operational on 15 December 2008. Current vetting and barring practices are being reformed but employers will retain their responsibilities for ensuring safe recruitment and employment practices. On 12 October 2009, POCA, POVA and List 99 were replaced by two new barred lists administered by the ISA. Checks of these new lists can be made as part of an enhanced CRB check. . It is a criminal offence for an employer to employ a non ISA registered person in certain circumstances. It is also an offence for a barred person to be employed in certain types of work involving vulnerable adults or children. For further information see www.isa-gov.org.

Protection Orders

Section 46 of the Children Act 1989 permits any police constable, who has reasonable cause to believe that a child is at risk of significant harm, to remove the child to a place of safety, or to prevent the child from being removed from somewhere the child is safe e.g. a hospital.

Known as police protection, it is the most immediate form of protection available for any child, in that it can be put into effect at once, without the need for a court order.

Police protection can remain in force for up to 72 hours. Any police officer can make the order but it must be confirmed by an officer of the rank of Inspector, or above, and it must be reported to the local authority who will then usually apply for an Emergency Protection Order (EPO), in the first instance.

Section 44 of the Children Act 1989 enables the court to grant an EPO to secure the immediate safety of a child by removing the child to a place of safety, or by preventing the childs removal from a place of safety.

The court may make the order if there is reasonable cause to believe that the child is otherwise likely to suffer significant harm. The Order should only be made if the court is satisfied that it is both necessary and proportionate, and that no other less radical form of order will achieve the essential aim of promoting the childs welfare. The Order is not to be made for any longer than is absolutely necessary to protect the child. In X Council v B and Others (Emergency Protection Orders) [2007] 1 FCR 512, Mumby J set out the duties and responsibilities of local authorities when making such applications.

Offences committed by children against children

Children may be the victims of abuse committed by other children. All such cases should be reviewed by a youth prosecutor in accordance with the principles set out in the Youth Offenders chapter of the Legal Guidance and, where the offence is sexual, in the child defendant sections of the Legal Guidance on the Sexual Offences Act 2003. It is essential that the interests of all the children involved in the case are considered, including the impact of a prosecution and the most appropriate venue for trial, particularly where the children are very young. See R on the application of H, A and O v Southampton Youth Court [2004] EWHC 2912 (Admin) regarding decisions on venue.

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Achieving Best Evidence (ABE) Video Interviews

The revised edition of Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable or Intimidated Witnesses, including Children (ABE) provides full guidance on video interviews with children.

Interviews with children

The purpose of the interview can include evidence gathering in criminal proceedings; evidence in chief; enquiries into 'significant harm' under s.47 Children Act 1989 and safeguarding issues and evidence gathering for civil proceedings e.g. care proceedings.

It is essential that the interview is tightly focussed and is as concise as possible to ensure that the child is able to maintain concentration. Rambling, lengthy or ill-focused interviews do the child witness a great disservice; not only is the child prevented from giving their best evidence but they can lose concentration when refreshing their memories, the jury also loses concentration when watching the evidence in chief and the defence exploit the weaknesses of the interview.

Video interviews are considered best practice for cases involving sex or violence but there are exceptions, for example where the abuse itself was video recorded, or the child objects or there are insurmountable difficulties in conducting the video interview.

The interviewer must consider the needs of the victim, for example: which special measures will be required? Is there a need for an early special measures meeting/discussion with the prosecutor? Is an intermediary required? Does the child require an interview supporter?

Section 47 enquiries into significant harm may be taking place at the same time as a criminal investigation and will involve a strategy meeting between various agencies. Where it has been agreed by the police and childrens social care, that it is in the best interests of the child that a full investigation be carried out, the responsibility for the investigation lies with the police, including any investigative interview. However, provided both the police officer and social worker have been trained to interview child witnesses in accordance with Achieving Best Evidence, there is no reason why either should not lead the interview.

Initial contact with child witnesses

Even where it is apparent that a video interview is required, initial questioning of the child may be necessary where immediate action is required to assist with the following issues: forensic and medical examination of the victim; safety of the child; initial decisions on the investigation e.g. scene of crime examination, interviewing other witnesses, arrest of alleged offender(s); and witness support

However, such contact should be minimal.

Consent

At a level appropriate to the childs age and understanding, interviewers should explain to the child the purpose of any proposed video-recorded interview and that if the case proceeds, they may be required to be available for cross examination. Written consent to be video-recorded is not necessary from the child, but it is unlikely to be practicable or desirable to video-record an interview with a reluctant or hostile child.

The investigating team may need to interview a suspected child victim without the knowledge or authority of the parent or carer in certain situations. Proceeding with the interview in the absence of parental knowledge or authority needs to be carefully managed in interventions with the family by the local children's services authority. See Working Together to Safeguard Children 2006 and National Assembly for Wales 2004, Safeguarding Children: Working Together for Positive Outcomes.

When can the child be further interviewed

Good pre- interview planning will often ensure that all salient points are covered.

However, there are occasions when a further interview may be required:

where a child indicates to a third party that they have significant new information that was not disclosed in the initial interview, but which they now wish to share with the interviewing team
where the initial interview opens up new lines of enquiry or wider allegations that cannot be satisfactorily explored in the time available for the interview
where in the preparation of their defence, an accused raises matters not covered in the initial interview
where significant new information emerges from other witnesses or sources

Supplementary interviews should not however be conducted to attempt to retrieve a situation in which a childs evidence is likely to have been compromised by the use of inappropriate techniques or questioning styles by the interviewer. The CPS should be consulted and the reasons for the decision should be recorded in writing.

Pre trial Witness Interviews

A trained Crown Prosecutor may conduct a pre-trial witness interview with a witness to assess the reliability of a witnesss evidence or to understand better complex evidence. Subject to these requirements, a pre-trial witness interview may be conducted in any case where the prosecutor considers it will enable him/her to make a better informed decision about the case. Pre-trial witness interviews are governed by a Code of Practice issued by the DPP. This is supported by comprehensive Legal Guidance.

A pre-trial witness interview may be conducted with any witness including a child. The Code of Practice sets out specific guidance to be considered when deciding whether or not an interview should take place with a child or other vulnerable witness:

Special care will be taken in making a decision to hold a pre-trial interview with a child. The purpose of video recording the evidence in chief of children and other vulnerable witnesses is to preserve their evidence at an early stage and to protect them from the necessity to continually repeat their account during the course of the criminal prosecution process. Further, in cases where children and other vulnerable witnesses are victims of abuse, therapy may have commenced following the video recording of their testimony.

It will only be in exceptional cases, therefore, that pre-trial interviews are considered for children and vulnerable witnesses. Prosecutors will have the benefit of the video recording in order to assess the witness and if there are areas that require further clarification, consideration will be given to asking the original interviewer to explore these by way of an additional video recorded interview. The investigative interviewers will have already built a rapport with the witness and have the special skills required to probe gently the issue in a simple and non-suggestive way.

In reaching a decision to hold a pre-trial interview consideration will be given to the age, degree of vulnerability and status of the witness. Where the original statement was video recorded the pre-trial interview will also be video recorded. The venue must be appropriate for the witness and in most cases the police video interview suite will be used. The witness must have appropriate support and the prosecutor will take advice from the trained police interviewer as to the type and level of questions to be put. The prosecutor must also be conversant with the practice guidance Achieving Best Evidence in Criminal Proceedings.

Children with disabilities or where the child is very young or psychologically disturbed

Special care and planning for the video interview needs to be undertaken in respect of children with a disability or where the child is very young or psychologically disturbed. This is outlined in detail in Achieving Best Evidence. Deaf children may not be proficient either in the use of British Sign Language or in working with interpreters; particular thought must therefore be given to the use of an appropriately skilled interpreter working closely with an appropriately skilled intermediary.

The child who becomes the suspect

It may happen that a child who is being interviewed comes under suspicion of involvement of a criminal offence, e.g. a self incriminating statement. If this occurs, the interview should be terminated and the child told that they may be interviewed at a later date. Admissions made by a child in these circumstances may not be admissible in evidence and a further interview under PACE will be required.

Review of video evidence

The whole recording must be viewed for the purposes of review and before the tape is released to the defence or a third party. The purpose of the viewing includes:

to be satisfied that the video is of sufficiently high quality - both in technical and evidential terms and that all necessary areas have been covered so that the recording can be used as evidence in chief
to ensure the accuracy of the record of interview (the ROVI) or transcript
to identify any inconsistency between what the child said on record and what the child or other witnesses said elsewhere
to be satisfied of the child's ability to understand and communicate and function as a competent witness, with or without the benefit of any special measures
to identify any potential areas of cross-examination the defence may later explore. For example, has the child been prompted or led in any way in the interview? Has the interviewer complied with Achieving Best Evidence? Was anyone present in the interview room, who should not have been?
to identify sensitive or irrelevant material which may need to be edited out before releasing the tape

Having reviewed the video evidence and assessed the quality of the evidence and of the recording, prosecutors must keep proper records of their assessments and decisions and give any relevant feed back to the police.

It is particularly important to edit irrelevant material from long, rambling interviews. Experience has shown that neither the child witnesses, nor juries are able to concentrate on the key issues, when required to view such records of interviews, some of which last several hours therefore obliging the court to give the child witnesses and juries regular breaks.

PCMH / PTR case management issues

The following are some of the issues that should be addressed by the prosecution team in their pre-trial planning:

Special measures a timely application will need to be made for special measures, in particular video evidence in chief and TV link, intermediary and clearing the court room in sexual offence cases.
Any other supportive measures e.g. breaks, use of a supporter these should be clarified at the PCMH/PTR and the PCMH questionnaire should cover these points.
Clarification as to any challenge to the admissibility of the video interview.
Editing directions as to the time limits for the editing of the video will usually be given by the judge at the PCMH

Refreshing memory

Witnesses are entitled to see a copy of their statement before the trial. Viewing the video recorded interview ahead of the trial, in more informal circumstances, will help the child to familiarise themselves with seeing their own image on the screen and makes it more likely that they will concentrate on the task of giving evidence.

Prosecutors should make timely enquiries to ensure that this has been done.

Minimising delay between the memory refreshing stage and the trial should be balanced against the ability of the child to concentrate through two viewings on the same day. Many child witnesses may prefer to watch the video at least a day before the trial. Some find it convenient to watch the video when they attend court for the orientation visit; others prefer to keep the two tasks separate, as time may be limited for the orientation visit and there is already a great deal of information for them to take in.

If the video has been edited, for example to remove inadmissible material, this should be explained to the child so that they are not confused when the recording does not match their recollection of the interview.

Video security

Video security is outlined in Annex J of Achieving Best Evidence. A summary is attached at Annex B of this guidance.

Transcripts and ROVIs

See Annex K of Achieving Best Evidence. Recent guidance provides that the police should prepare more detailed summaries of the video interview in the form of ROVIs (similar to ROTIs). A request for a transcript should then only be made once the defendant has indicated his intention to plead not guilty.

Video interviews as unused material

Previous CPS guidance suggested that if the video recorded interview was to be unused material, the defence should inspect it at the police station. However, as confirmed in the revised edition of Achieving Best Evidence, a copy of the video recorded interview can now be made available to the defence, providing it is properly disclosable under the Criminal Procedure and Investigations Act 1996.

Competence and Compellability

Competence

Section 53(3) and (4) Youth Justice and Criminal Evidence Act 1999, states that all persons (whatever their age) are competent to give evidence, unless they cannot understand questions asked of them at court or answer them in a manner which can be understood (with, if necessary, the assistance of special measures).

Sworn and unsworn evidence

Where a video interview is to be played in court as evidence in chief, there is no need for the witness to be sworn. Section 31(2) and (3) of the Youth Justice and Criminal Evidence Act 1999 expressly provides that if the video is admitted by the court, it shall have the same legal status as that witness oral testimony even where, if giving direct oral testimony, the witness would have been required to be sworn. Children under the age of 14 years will always give unsworn evidence (section 55(2) Youth Justice and Criminal Evidence Act 1999).

Compellability

Compellability means that a witness can be legally required to attend trial, or be available for cross-examination on the live link if a special measures direction has been made. Most witnesses who are competent can be compelled to give evidence. The only exception relates to spouses who are only compellable in certain circumstances. However, care should be taken when considering issues of compellability in relation to children.

Witness Support and Preparation

In some areas of the country the Witness Service / Victim Support provide a specialist Young Witness Service.

Achieving Best Evidence provides guidelines for pre-trial preparation of young witnesses at Chapter Five. In addition, Appendix F refers to National Standards for Young Witness Preparation and Appendix G provides National Standards for the Court Witness Supporter in the Live Link room.

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Statutory and Common Law Offences

Sexual Offences

The Sexual Offences Act 1956 was implemented 1 January 1957 and repealed 1 May 2004 by the Sexual Offences Act 2003. Prosecutors may find that they will need to use different sets of legislation, depending on the dates of the offences. Areas are therefore advised to retain a copy of Archbold 2004 to assist in respect of the offences committed prior to the implementation of the Sexual Offences Act 2003.

Full guidance on charging and prosecuting sexual offences involving children can be found in the Sexual Offences section of the Legal Guidance, which includes guidance on the following offences:

Sexual Offences Act 2003

Human Trafficking for sexual exploitation

Sections 57, 58 and 59 of the Sexual Offences Act (SOA) 2003 deal with trafficking into, trafficking within, and trafficking out of the UK for sexual exploitation, respectively.

Whilst UK is a primarily a destination state for human trafficking, an emerging issue is the 'internal trafficking' of children. This term is used to describe the trafficking of children born, or normally resident in the UK. Internal trafficking is characterised by the recruitment, grooming and sexual exploitation of young teenage girls in the UK by organised crime gangs. Investigations may arise in circumstances where a child has gone missing (often, but not limited to, children in local authority care). They may be sexually abused before being taken to other towns and cities where the sexual exploitation (prostitution) continues.

Work is ongoing to develop guidance to police and prosecutors with LSCBs, Social Services and others who are in direct contact with children, as well as criminal justice agencies. Work is being focused on how first responders (within care homes, social services or police officers) should respond to children who may either be in the process of being groomed or for those who have been recovered from their abductors, to collect reliable evidence to support a prosecution.

In December 2007 the DCSF and Home office published Working Together to Safeguard Children Who May Have Been Trafficked which provides guidance on the roles and functions of relevant agencies. Further guidance is also available in the Human Trafficking and Smuggling chapter of the Legal Guidance.

Abuse of children through prostitution or pornography

Sections 47, 48, 49 and 50 SOA 2003 deal with paying for sexual services of a child; causing or inciting child prostitution or pornography; controlling a child prostitute or a child involved in pornography; and arranging or facilitating child prostitution or pornography respectively.

These offences are specifically designed to tackle the use of children in the sex industry, where a child is under 18. Children involved in prostitution are primarily victims of abuse and people who take advantage of them by exploiting them are child abusers.

In the above offences a child is defined as someone under 18. Consent is irrelevant. A reasonable belief that the child is over 18 affords a defence if the child is 13 or over. There is no defence of reasonable belief if the child is aged under 13.

Offences outside the UK

Section 7 of the Sex Offenders Act 1997 extended the jurisdiction of the courts of England, Wales and Northern Ireland. It was repealed and replaced by section 72 of the SOA 2003 on 1 May 2004, which in turn was amended by s.72 Criminal Justice and Immigration Act 2008.

If a person commits an act outside the UK, which is an offence in that country or territory, that person can be prosecuted in the UK for the offence, if it is a sexual offence listed in Schedule 2 of the SOA 2003.

A distinction is made between UK nationals and UK residents. A national can be prosecuted for an act committed outside the UK, which is a Schedule 2 listed sexual offence if done in England, Wales or Northern Ireland. A resident can be prosecuted for an act committed outside the UK, if the act constitutes an offence under the law in force in that country and the act would be a Schedule 2 listed sexual offence if done in England, Wales or Northern Ireland.

Possession of indecent photographs of children

Section 160(1) Criminal Justice Act 1988 makes it an offence for a person to have any indecent photograph of a child in his possession. The offence is triable either way. The consent of the DPP is required. Further information can be found in the Indecent Photographs of Children chapter of the Legal Guidance.

Taking, making or distributing indecent photographs of children.

Section 1 Protection of Children Act 1978 makes it an offence for a person:

to take, permit to be taken, or to make any indecent photograph or pseudo photograph of a child; or
to distribute or show such indecent photographs or pseudo-photographs; or
to have in his possession such indecent photographs or pseudo photographs, with a view to their being distributed or shown by himself or others; or
to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs or pseudo-photographs, or intends to do so.

As amended by the SOA 2003, a child is defined as under 18. The offence is triable either way. The consent of the DPP is required.

Indecency with Children Act 1960 repealed 1 May 2004

This offence involves any person who commits an act of gross indecency with or towards a child under the age of sixteen, or who incites a child under that age to such an act with him or another. The offence is either way and carries a maximum penalty of 10 years imprisonment on indictment. (Note: S52 (Crime (Sentences) Act 1997 substituted 10 years for the previous sentence of 2 years.)

Consent of the DPP is not required. Section 8 of the Sexual Offences Act 1967 (no proceedings shall be instituted except by or with the consent of the Director against any man for gross indecency or certain other offences where any person is under 21) shall not apply to proceedings under section 1 of the Indecency with Children Act 1960 (s.28 Criminal Justice Act 1972).

Meeting a child following sexual grooming

Section 15 SOA 2003 provides that an offence is committed where an offender, having communicated with a child on at least two occasions, then either meets the child or travels with the intention of meeting the child in any part of the world and with the intention of committing a 'relevant offence' as defined.

Section 73 Criminal Justice and Immigration Act 2008 amended section 15 SOA 2003. The amendment broadens the effect of section 15 to criminalise situations where the offender arranges to meet a child in any part of the world and where the child then travels with the intention of meeting the offender in any part of the world.

Abuse of position of trust

Sections 16-19 SOA 2003 make it an offence for a person over 18 to behave intentionally in certain sexual ways towards a child under 18. The prohibited sexual behaviour in each of the sections 16-19 is identical to that prohibited in sections 9-12 (i.e. sexual activity with a child; causing a child to engage in sexual activity; sexual activity in the presence of a child; and causing a child to watch a sexual act).

The primary purpose of the abuse of trust provisions is to provide protection for young people aged 16 and 17, who are considered to be particularly vulnerable to exploitation by those who hold a position of trust or authority in their lives.

Positions of trust are defined in section 21 and 22. For example, looking after persons in educational establishments, residential settings, or where duties involve regular unsupervised contact of children in the community.

Familial child sex offences

Sections 25 29 SOA 2003 address sexual activity with a child family member and inciting a child family member to engage in sexual activity.

Section 27 defines family relationships. In the light of the modern, extended families with which many people are now familiar, it was felt that there was inadequate protection for those in extended families where incest was excluded as there was no blood relationship.

Sentencing Guidelines

For sentencing guidelines, see Sentencing Guidelines Council Sexual Offences Act 2003. Note the increased sentence that can be imposed where familial offences are charged in preference to offences under sections 9 and 10 SOA 2003.

Offences of assault, abduction, kidnapping, cruelty/neglect

Full guidance on charging and prosecuting offences of assault can be found in the Offences Against the Person section of the Legal Guidance, which includes guidance on the following matters:

Two parents/carers who is responsible?

In cases where there are two or more carers in charge of the child, it may not be possible to prove who is responsible for the injury. Attention should be paid to the timing of the injury, who had the care of the child at the relevant time and whether any other person had access to the child. If it is not possible to prove who is responsible, the case cannot be prosecuted unless an alternative charge can be found. It may be possible to charge neglect based on a failure to seek medical attention, or to charge section 5 of the Domestic Violence Crimes and Victims Act 2004 where it can be proved that the offender allowed the death.

Defence of reasonable chastisement / lawful correction

Section 58 Children Act 2004 provides that reasonable chastisement is no defence to offences under s.47, s.20, s.18 Offences against the Person Act or to s.1 Children and Young Persons Act 1933.

The CPS revised its Offences Against the Person, Incorporating the Charging Standard guidance accordingly and provides advice for prosecutors in determining the severity of a child's injury and the appropriate charge that should be laid against the defendant.

The effect of this change in the Charging Standard guidance is that in cases of minor assaults by an adult upon a child, where an injury has been caused other than reddening of the skin, (such as grazes, scratches, abrasions, minor bruising, swelling, superficial cuts or black eyes), and where the injury is more than transient and trifling, the appropriate charge will normally be assault occasioning actual bodily harm. In these circumstances, the defence of reasonable chastisement is no longer available

The right of reasonable chastisement by a teacher has been severely restricted by s.548 Education Act 1996 which saw the abolition of corporal punishment for the majority of school children. However, section 550A of the Education Act 1996 provides that a member of staff of a school may 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.

Child abduction

The offence of child abduction is regulated by the Child Abduction Act 1984 as amended by the Children Act 1989. DPP consent is required for all offences under section 1.

Section 1 covers offences committed by a parent, guardian or other person who is connected with the child under the age of sixteen, with a view to removal from the United Kingdom. It can also be used for a person who aids and abets the abduction.

Section 2 covers offences committed by a person not connected with the child, who unlawfully takes or detains a child under the age of sixteen. The offence is triable either way. Maximum penalty on indictment is 7 years.

Prosecutors will need to consider carefully whether s.2 is the appropriate charge in circumstances where a section 58 Sexual Offences Act 2003 (internal trafficking) offence is properly made out on the facts of the case. The trafficking offence is triable either way. Maximum penalty on indictment is 14 years. The offence is a "lifestyle offence" within the provisions of Schedule 2, paragraph 4 (People trafficking), Proceeds of Crime Act 2002.

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 (House of Lords in R v D [1984] A.C.778) It is punishable by fine or imprisonment or both.

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.

Under s.5 Child Abduction Act 1984, no prosecution shall be instituted for an offence of kidnapping if it was committed against a child under the age of 16 by a person "connected with" the child, within the meaning of s.1 of that Act, without the consent of the DPP.

Offences of child cruelty, neglect and violence

Section 1 Children and Young Persons Act 1933 provides that any person who has attained the age of sixteen years and has responsibility for any child or young person under that age, wilfully assaults, ill-treats, neglects, abandons or exposes him, or causes or procures him to be assaulted, ill-treated, neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement) that person shall be guilty of a misdemeanour.

The definition of neglect includes failure to provide adequate food, clothing, medical aid or lodging and, in respect of suffocation, where the cause of death for an infant under 3 years is suffocation (but not 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, that other person shall, if he was, when he went to bed, under the influence of drink, be deemed to have neglected the infant in a manner likely to cause injury to its health.

Charging Practice

The Section 1 offence is triable either way carrying a maximum penalty of 10 years on indictment. The maximum penalty for a charge of assault under s.20 or s.47 Offences Against the Person Act 1861 is 5 years.

Where a serious assault has been committed, the most appropriate offence should be charged.

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.

A specific charge of assault is likely to be more appropriate where a weapon has been used (whether it is one recognised as such e.g. a knife or something adapted for the purpose, such as a belt, flex or pipe) or where extreme violence is used, such as extreme shaking or swinging the child against a wall or object.

In some cases, the circumstances might warrant charges of both assault and s.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 should, of course, be considered on its own facts.

Sentencing guidelines

The Sentencing Guidelines Council issued new guidelines in March 2008 for Assaults and other offences against the person and Overarching Principles: Assaults on Children and Cruelty to a child. (Note: the reference in footnote 11 on page 8 refers to an earlier version of CPS guidance, which has now been replaced by this update).

The second set of guidelines relating to children indicates that where a child is the victim and the offender an adult, custody will normally result, particularly where the offence involves an abuse of trust. Where an offender only intended to administer lawful chastisement and relatively minor injury occurred that was neither foreseen nor intended, custody will not normally be appropriate.

Child cruelty cases will normally result in custodial sentence but sentencers are advised to take into account any available information concerning the future care of the child and the impact that prison for the offender may have on the victim.

Offences involving the death of a child

[See Department for Children, Schools and Families Research Report : Analysing child deaths and serious injury through abuse and neglect : what can we learn?- A biennial analysis of serious case reviews 2003 2005]

Full guidance on charging and prosecuting offences involving the death of a child can be found in the Homicide section of the Legal Guidance, which includes guidance on the following matters:

Death of a child in its mother's womb

To kill a child in its mother'swomb is neither murder nor manslaughter although it may be an offence under the Infant Life (Preservation) Act 1929. Where a person attacks a pregnant woman intending to do her grievous bodily harm and in consequence of that attack, she goes into premature labour with the child being born alive but subsequently dying as a result of being born prematurely, the attacker would be guilty of manslaughter in relation to the death of the child but not murder Attorney Generals Reference (No.3 of 1994).

Familial Homicide

s. 5 Domestic Violence, Crime and Victims Act 2004 creates an offence of causing or allowing the death of a child under the age of 16 or of a vulnerable adult. 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 Act does not apply to a person under the age of 16 if they are not the parent of the child. Further guidance can be found in the Homicide chapter of the Legal Guidance.

Sudden Infant Death Syndrome (SIDS) and Shaken Baby Syndrome (SBS)

The terms SBS and SIDS are often used to refer to cases where the death of an infant is attributed to no obvious external injuries and the issue revolves around expert evidence as to whether the death was as a result of intentional suffocation or due to some unknown reason.

The accepted hypothesis defining "Shaken Baby Syndrome", (or as it should be more properly called, "non-accidental head injury"), depends on findings of a triad (the "Triad") of intracranial injuries consisting of: retinal haemorrhages; subdural haemorrhages; and brain encephalopathy (disease of the brain affecting function).

The mechanism for these injuries is said to be the shaking of the infant, with or without impact on a solid surface, which moves the brain within the skull, damaging the brain and shearing the bridging veins.

This triad of injuries is central to the diagnosis of SBS when there are no other signs or symptoms of trauma such as bruises or fractures. In addition the injuries are invariably inflicted by a sole carer in the absence of any witness, and they are followed by an inadequate history, incompatible with the severity of the injuries.

The triad hypothesis was recognised in the cases of R v Harris, Rock, Cherry and Foulder [2005] EWCA Crim 1980. The court felt that the triad of injuries provided strong evidence towards a finding that the injuries were non-accidental but could not alone be conclusive of the cause of death. The accepted triad hypothesis was not considered to be a fact; it remained a hypothesis.

Cases of non-accidental head injury are fact specific and will be determined on their individual facts. All the circumstances including the clinical pictures must be taken into account (See also R v Kai-Whitehead [2005] EWCA Crim 1092 and R v Allen [2005] EWCA Crim 1092).

In R v Cannings [2004]EWCA Crim 01 Lord Justice Judge said "In cases like the present, if the outcome of the trial depends exclusively on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe, to proceed".

The court indicated that if there is nothing to explain the deaths, then in the current state of knowledge, they remain unexplained and possible natural deaths. The view that the rarity of such incidents in the same family provided a powerful inference that the deaths resulted from deliberate harm was ruled out. See also the Legal Guidance chapter Shaken Babies and SIDS.

Child Destruction, Infanticide, Endeavouring to Conceal the Birth of a Child and using poison or instruments to cause miscarriage

Child destruction s.1 Infant Life (Preservation) Act 1929 - involves the destruction of a child prior to birth.

Infanticide - s.1 Infanticide Act 1938 - would be used where the death of a child under 12 months is caused by the offender where the offender's balance of mind was disturbed by reason of her not having recovered from the effects of giving birth or subsequent lactation.

Concealment of birth - s.60 Offences against the Person Act 1861 - this would be used where a woman has been delivered of a child who died before, at or after its birth, and any person endeavoured to conceal the dead baby.

Use of poison or instruments to cause miscarriage - s.58 Offences against the Person Act 1861 to be read in the context of the Abortion Act 1967.

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Indictments

Full guidance on drafting indictments can be found in the Indictments section of the Legal Guidance, which includes guidance on the following matters:

Criminal Procedure (Amendment) Rules 2007 - Prosecuting multiple offending

The Criminal Procedure (Amendment) Rules 2007 came into force from 2 April 2007.The Amendment Rules revoke the Indictment Rules 1971 and consolidate them within Part 14 of the Criminal Procedure Rules 2007.

The new rules allow a prosecutor, in certain circumstances, to bring a single charge against a defendant even though that includes more than one incident of the offence alleged. The rules are supplemented by a Practice Direction giving guidance on when a multiple incident count under rule 14 may be appropriate and when it may be appropriate to apply for a two-stage trial.

Domestic Violence, Crime and Victims Act 2004 -Two-stage Trials

The two stage process introduced by sections 17 21 Domestic Violence, Crime and Victims Act 2004 is intended for use in cases of frequently repeated offending of a similar nature, rather than wide ranging, complex and factually differentiated cases.

It enables the Crown to seek verdicts of the court on a representative number of charges that will enable the judge to sentence the defendant for the full extent of his or her offending, while ensuring the defendants are only sentenced for offences which have been proved.

Although the commonly accepted view is that the process is not intended for and should not be used for cases of child abuse that involve repeated sexual offences, it is thought that cases involving multiple instances of making indecent images of children that cannot be properly characterized as continuing offences, could be appropriately dealt with by use of the two stage process.

Full guidance on the process can be found in the Two Stage Trials - Multiple Offending section of the Legal Guidance.

Old/New Legislation Dates to remember

Counts on the indictment must be drafted to reflect the changes in the law. For example:

16/9/85 Indecent assault s.14 SOA 1956 sentencing alters from 5 years if the child is under 13 or 2 years if the victim is 13 or over, to 10 years.
20/9/1993 - Sexual Offences Act 1993 s. 1 abolished the presumption that a boy under 14 is incapable of sexual intercourse, but only for offences committed after it came into force.
3/11/94 Anal rape introduced under s.1 SOA 1956.
1/10/97 s.1 Indecency with Children Act 1960 sentencing alters from 2 years to 10 years.
1/9/1997 - s.7 of the Sex Offenders Act 1997 as amended by s. 72 SOA 2003 extended the jurisdiction of the courts of England, Wales and Northern to cover certain sexual offences committed abroad.
11/1/2001 s.1 Indecency with Children Act 1960 age of victim alters from 14 to 16 years.
1/5/2004 SOA 1956 replaced by SOA 2003 -definition of child under the Criminal Justice Act 1988 and the Protection from Children Act 1978 altered from 16 to18 years.
4/4/2005 Dangerousness provisions introduced under CJA 2003.

Drafting indictments where counts straddle the implementation of the dangerous offender provisions

Section 234 Criminal Justice Act 2003 and R v Robert Michael S, and others [2007] EWCA Crim 1622. In this case, the Court of Appeal considered the effect of the dangerous offender provisions of the Criminal Justice Act 2003 in cases where the offences straddle the commencement date for those provisions (4 April 2005). The Court emphasised the need for indictments to be drafted to reflect the significance of the commencement date.

Section 55 Violent Crime Reduction Act 2006 - Transitional Provisions for the Sexual Offences Act 2003

Section 55 Violent Crime Reduction Act 2006 came into force 12 February 2007. This allows the defendant to be convicted where:

He is charged in respect of the same conduct with an offence under the Sexual Offences Act 2003 and an offence specified in section 55(2) which includes an offence under Sexual Offences Act 1956; and
The only barrier to his conviction of the 2003 offence is that it cannot be proved beyond reasonable doubt that the conduct took place after the 2003 Act came into force; and
The only barrier to his conviction of the pre-commencement offence is that it has not been proved beyond reasonable doubt that the conduct took place before the enactment providing for the offence was repealed.

There is a conclusive presumption for the purpose of determining guilt that the conduct took place:

Before the 2003 Act came into force, where the maximum penalty for the pre-commencement offence is less that the maximum sentence under the 2003 Act.
After the 2003 Act came into force for every other offence.

Section 55 applies to any proceedings, whenever commenced, other than proceedings in which the defendant has been acquitted or convicted of the pre-commencement or the 2003 offence.

Bad character R v Wallace and R v Chopra

Full guidance can be found in the Bad Character Evidence section of the Legal Guidance.

Of particular relevance to many child abuse cases is section 112(2) Criminal Justice Act 2003, which states that where a defendant is charged with two or more offences in the same criminal proceedings, it has the effect as if each offence were charged in separate proceedings.

Therefore, where the defendant is charged upon several counts, the evidence going to one count is bad character evidence within the meaning of the Act, so far as the other counts are concerned: R v Chopra [2007] 1 Cr. App. R. 16,CA. In R v Wallace [2007] 7 Archbold News 2,CA, it was held that this would extend to a case where the defendant was charged on a multi-count indictment and the reality was that no count was self-contained and capable of being proved individually, but the counts stood or fell together on the basis of the totality of the circumstantial evidence; and that technically a bad character application should be made.

Also of use in child abuse cases is section 101(d) CJA 2003 'it is relevant to an important matter in issue between the defendant and the prosecution' i.e. whether a defendant has a propensity to commit crimes of the kind with which he is charged, except where his propensity makes it no more likely that he is guilty of the offence. Examples of such evidence might include previous convictions or previous incidents that did not result in a conviction.

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Issues Commonly Arising in Child Abuse Cases

Medical/scientific evidence

When reviewing any file in which a child alleges abuse, prosecutors should always check whether there is any medical or scientific evidence to support the childs account. The following points should be considered:

Medical evidence

a) Qualifications and field of specialism of the expert. A consultant paediatrician 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 ordontologist to examine a bite mark.

b) In cases of anal abuse, signs of any trauma may disappear quickly. This point will need to be covered in the experts statement. If there is a tear in the anal passage, there may be another explanation e.g. constipation.

c) In cases of vaginal abuse, the lack of trauma may not preclude abuse and this point should be covered in the expert's statement. However, if the child describes repeated penetrative abuse over a number of years from a young age, the effect on the prosecution of the lack of any trauma to that area and an intact hymen should be considered in consultation with the expert.

d) Colposcopes are cameras that may be used at the examination. If the defence instruct their own expert, he/she will wish to view the video of the examination.

Other scientific evidence

Other examples of scientific evidence include DNA (swabs taken at the medical examination, DNA from a baby or a foetus, bed clothes, clothing etc.) fingerprints, forensic examination of computers and mobile phone interrogations.

Presence of the expert at the conference and the trial

When prosecuting rape, the presence of the expert at the conference with counsel and the trial is now recommended practice. If an expert is not present at the conference or in the trial, an explanation should be endorsed on the file.

Second opinions

In W (Children) [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."

Disclosure guidance

Chapters 36 and 37 in the Disclosure Manual deal with material relating to experts.

Collusion and innocent contamination

When reviewing files, prosecutors may need to consider whether there is any evidence of collusion. Have the witnesses concocted accounts or is there an innocent explanation? Where there are concerns, the officer should take further statements to clarify any issues raised, for example, have there been any overlapping periods in the same school or have any of the victims met each other?

Consideration should also be given to the possibility of innocent contamination, particularly where the same police officer has been responsible for interviewing a number of potential victims or witnesses.

Compensation

Claims for compensation are increasing and the public awareness of the right to claim compensation has led to some victims submitting claims prior to court proceedings. Child abuse victims are equally entitled to compensation but if a claim is submitted prior to trial, it can complicate the investigation and prosecution. Defence advocates may claim complaints have been made for profit and use it as a tool to test credibility and motivation for making the complaint.

Family court concurrent proceedings

Following the Baby P case and the government's response to Lord Laming's Review, it is likely that the number of care proceedings will increase and the already challenging timescales required by the Public Law Outline will be tightened even further. This will have implications for the CPS in terms of the need for and the timeliness of requests for disclosure of evidence/information (both from and into the family court). See Legal Guidance chapter on Victims and Witnesses: Safeguarding Children as Victims and Witnesses and Related Family and Criminal Proceedings - a Good Practice Guide.

Corroboration

Section 34(2) Criminal Justice Act 1988 removed the need for a warning about convicting on the uncorroborated testimony of a child.

Section 32 of the Criminal Justice and Public Order Act 1994 came into force on 3 February 1995 and removed the previous requirement for the court to give the jury a warning about convicting the accused on the uncorroborated evidence of a person, where the offence charged was a sexual offence.

In R v Makanjoula; R v Easton[1995]2 Cr. App. R.469, CA, the court recognised the judge was left with a discretion to warn the jury about convicting on the uncorroborated evidence of a witness if he thinks it necessary.

Section 34(3) Criminal Justice Act 1988 stated that unsworn evidence admitted by virtue of s.56 Youth Justice and Criminal Evidence Act 1999 may corroborate evidence (sworn or unsworn) given by any other person.

Hearsay

The hearsay provisions are to be found in Chapter 2 of Part 11 of the Criminal Justice Act 2003. These provisions came into force on 4 April 2005. Full guidance is available under the Hearsay section of the Legal Guidance.

The most common forms of hearsay used in child abuse cases are:

Business documents s.117 (e.g. mobile phone interrogations).
Expert evidence s.118.
Confessions and mixed statements s.118.
Previous complaint by the victim about conduct which would constitute the offence or part of it, where the complaint was made as soon as could reasonably expected, the complaint was not made as a result of a threat or promise and, before the statement is adduced, the witness gives oral evidence in connection with the subject matter. s.120. (Note that this replaces the previous doctrine of "recent complaint" and now extends beyond sexual cases. Section 114(d) (interests of justice) may be an alternative route for inclusion of the evidence, if all the provisions of section 120(7) cannot be met.).

Unused material

Full guidance on disclosure, including the Protocol for the Control and Management of unused Material in the Crown Court can be found in the Legal Guidance chapter on Disclosure.

The contents of both the MG6C and the MG6D are often extensive in child abuse cases. All material should be examined carefully and should only be disclosed if it undermines the prosecution case and/or assists the defence case. Care needs to be taken to ensure that the schedules are complete e.g. has the SOLO log been put on the schedule?

Third Party Material

Full guidance on the obtaining and use of Third Party material can be found in the Legal Guidance chapter on Disclosure - Third Parties.

The following types of material may be classed as third party material: medical notes; Social/Children's Services material; education material (LEA or school); counselling/ therapy notes; Rape Crisis/ISVA notes; information or evidence arising in parallel family/civil proceedings.

Investigators are under a duty to pursue all reasonable lines of enquiry, whether these point towards or away from a suspect. Reasonable lines of enquiry may include enquiries as to the existence of relevant material in the possession of a third party, for example, where a child witness is in the care of the local authority, the social services may have relevant material relating to the allegation under investigation (CPIA Code of Practice 3.6).

In R v Alibhai [2004] EWCA Crim.681, the court held that under the Act the prosecutor is only under a duty to disclose a third party's material if that material had come into the prosecutors possession and the prosecutor was of the opinion that such material satisfied the disclosure test. Before taking steps to obtain third party material, the Court emphasised that it must be shown that there was a suspicion that the third party not only had relevant material and that the material was not merely neutral or damaging to the accused but satisfied the disclosure test.

Where material is obtained from third parties, the investigator should discuss with them any sensitivities attached to the material that might influence whether it is used as evidence or otherwise disclosed to the defence, or whether there may be public interest reasons that justify withholding disclosure (Disclosure Manual 4.23).

The Protocol between the Crown Prosecution Services, Police and Local Authorities in the exchange of information in the investigation and prosecution of child abuse cases makes provision for access to the local authority files not already filed with the court. All Areas are encouraged to develop local protocols based on the national protocol.

The Protocol involves the appointment of local authorities and police Disclosure Officers. A package of potentially disclosable material is prepared jointly between the local authorities and police. PII/notification applications should then only be required where disclosure to the defence cannot be resolved by consent.

Where documents have already been filed in family proceedings, an approach should be made to the local authority to seek general information about what documents exist. A decision should then be made as to whether to make an application to the family court to see the documents.

Protocol on the Disclosure of Police Information in Family Proceedings 2006 this protocol deals with material to be disclosed to the local authority and to other parties in civil/family proceedings. Further information can be found in victims and Witnesses: Safeguarding Children as Victims and Witnesses and Related Family and Criminal Proceedings- A Good Practice Guide from the Family Justice Council at www.familyjusticecouncil.org.uk.

Therapy and Counselling

Provision of Therapy for Child Witnesses Prior to a Criminal Trial: Practice Guidance 2002 (currently being updated) confirms that pre-trial counselling/therapy does not automatically preclude a witness from testifying. The interests of the child in terms of counselling/therapy are paramount and a prosecution may have to be stopped to allow appropriate treatment to take place.

If the child victim requires counselling/therapy, the following should take place:

the CPS should be consulted where therapy/counselling is contemplated

the police should be asked to provide the therapist/counsellor with a copy of the above guidance

the counsellor/therapist should be advised to take notes of each session
the nature of the therapy/counselling should be clarified i.e., is it to be one to one or is a technique to be used like hypnotherapy the prosecutor should ask the police to draw the therapist/counsellors attention to the Guidance, which explains that certain types of therapy may create difficulties for the trial. For example, group therapy may cause allegations of contamination
the defence should be notified that therapy is being undertaken
the police should enquire as to the content of the therapy/counselling sessions and inspect records as appropriate in accordance with CPIA
CPIA must be applied and disclosure made in accordance with the third party material guidance.

Therapy/counselling records may reveal further complaints, lines of enquiry to be pursued, previous counselling, inconsistencies in the complaint or mental health issues, which may impact on the trial.

CPS Rape Policy

The following points must be observed in all cases involving the rape of, or a serious sexual offence committed against, a child:

Consult a second rape specialist if the case is to be refused charge or post charge the offences are to be substantially altered or the case withdrawn
The case must be prepared by a rape specialist
Only brief Accredited Rape Counsel or a CPS Crown Advocate Rape Specialist for cases involving rape
If the decision is to refuse charge and the advice is not face to face with the officer in the case, the CPS must write to the victim direct
If the decision is to substantially alter the offences charged or drop the case, the CPS must write to the victim and offer a meeting

Historical Abuse and Institutional Abuse

Issues relating to historical and institutional abuse are dealt with in Victims and Witnesses: Safeguarding Children as Victims and Witnesses, and in ACPO guidance - Investigating Child Abuse and Safeguarding Children 2009.

The following issues may arise: Loss or deliberate destruction of evidence; witnesses may be deceased or untraceable; previous indication that no prosecution would follow; delay in making a complaint; trawling; collusion; compensation; changes in legislation.

Where it is necessary to establish if there have been other complainants, prosecutors should liaise with the police and consider the use of appropriately worded template letters.

Lessons from Baby P and The Lord Laming Review 2009

Following the death of Baby P in 2008, and the local authority's Serious Case Review, Lord Laming conducted a national review of child Safeguarding procedures (http://publications.everychildmatters.gov.uk). Some of the findings, which may have particular relevance to prosecutors, are outlined at Annex F.

For example, Lord Laming found that poor practice included child protection conferences where not all the services involved in a child's life were present or able to give a view, where one professional disagreed with a decision and their view was not explored in more detail.

Prosecutors should be aware that the police can request follow up strategy meetings during complex or prolonged investigations. So, for example, where paediatrician attendance at a strategy meeting is important because medical opinion is of central significance, but the paediatrician does not attend, the police should be advised to seek a follow up strategy meeting to ensure that prosecutors are able to make fully informed decisions as to charge.

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Practice, Procedure and Case Management

Special Measures

The Youth Justice and Criminal Evidence Act 1999 created 2 types of witnesses eligible for assistance: those eligible on the grounds of age or incapacity (vulnerable) s.16; and those eligible on the ground of fear or distress in connection with testifying in the proceedings (intimidated) s.17.

Full guidance can be found in the Special Measures chapter of the Legal Guidance.

Special rules apply to children. There is currently a presumption that children's evidence will be given by video evidence in chief (if a video interview has been conducted) and TV link.

Section 21 creates two categories of children: children "in need of special protection" and all other children. The quality test (see below) is applied unless the child is "in need of special protection", in which case the quality test does not need to be met.

A child witness is in "need of special protection" if the offence to which the proceedings relate is a sexual offence (s.21(1)(b)(i), or is an offence of violence (s.21(1)(b)(ii). For the definition of "violence"see s.35 of the Act.

Known as the primary rule (The primary rule is likely to be amended by proposals contained in the Coroners and Justice Bill currently being considered by Parliament), in the case of a child witness the court must give a special measures direction which complies with the following:

it must provide for any relevant recording to be admitted under s.27 (video recorded evidence in chief), and
it must provide for any evidence not given by means of a video recording to be given by means of a live link.

This rule applies to all child witnesses but there are 3 limitations:

1. the measure must be available at that particular court - s.21(4)(a).

2. for video recorded evidence in chief, the video should not be admitted if it is not in the interests of justice to admit all or part of it - s.21(4)(b).

3. the primary rule does not apply if compliance would not be likely to maximise the quality of the witness evidence s.21(4)(c)

Section 21(5) states that the third limitation does not apply to "children in need of special protection". This means that child witnesses in cases involving sexual offences or offences of violence are automatically entitled to have video evidence in chief and live TV link without the need to consider whether the measure will improve the quality of the child's evidence (the "quality test").

In all cases involving a sexual offence or an offence of violence, any evidence from a child not given by means of a video recording must be given by live link.

Expiry of special measures

Section 21(8) currently states that where a special measures direction is given regarding any child witness, the measure shall cease to have effect when the child reaches the age of 17, unless the child has already begun to give evidence s.21(8)(d), or the special measures direction provided for video recorded evidence in chief (s.21(9)(a)(i)) - in which case, if the child was under the age of 17 when the recording was made, the special measure shall continue if the witness is over 17.

This means that where the child reaches 17 before giving his/her evidence, the special measures directions in relation to live evidence cease, but the direction in relation to video evidence in chief continues. To secure a TV link once the child becomes 17, an application will have to be made under s.17 (intimidated witness). These provisions are also likely to be amended by proposals contained in the Law Reform, Victims and Witnesses Bill due to be considered by Parliament in Autumn 2008.

Special measure allowing evidence to be given in private

Even where the child witness is not in the court room itself but is giving evidence by live link, knowing that members of the public are listening to their evidence on sexual matters can significantly increase the child's distress and prevent them from giving their best evidence.

Section 25 YJCE 1999 allows for evidence to be given in private in proceedings relating to a sexual offence (or where it appears to the court that there are reasonable grounds for believing that someone other than the accused has sought or will seek to intimidate the witness in connection with testifying in the proceedings).

Prosecutors must ensure consideration is given to this special measure in all relevant cases and the views of the witness sought.

Evidence by live link under s.51 Criminal Justice Act 2003

Section 51 provides that a witness (other than a defendant) may give evidence through a live link where the court is satisfied that giving evidence in this way is in the interests of the effective or efficient administration of justice.

It is anticipated that it may be particularly useful for expert and professional witnesses but is not confined to such witnesses. This provision is currently being piloted in Leeds, Hull, Bristol, Northampton and Lewes. The pilot relates to proceedings for the following offences:

an offence under Part 1 of the Sexual Offences Act 2003.
rape or burglary with intent to rape.
an offence under any of sections 2 to 12 and 14 to 17 of the Sexual Offences Act 1956.
an offence under section 128 of the Mental Health Act 1959 (unlawful intercourse with person receiving treatment for mental disorder by a member of hospital staff).
an offence under section 1 of the Indecency with Children Act 1960.
an offence under section 54 of the Criminal Law Act 1977 (incitement of a child to commit incest).

Transfer procedure

Section 53 Criminal Justice Act 1991 authorises the Director to serve a notice of transfer on the magistrates court certifying that in his opinion:

the evidence of the offence would be sufficient for the person charged to be committed for trial

a child victim or witness to the commission of the offence will be called as a witness at the trial
for the purpose of avoiding any prejudice to the welfare of the child the case should be taken over and proceeded with without delay by the Crown Court

In some cases the defendant will face a number of charges. Some of these charges may not qualify for transfer under section 53. However, where it would be proper to join these on the same indictment with charges that do qualify for transfer, it is permissible to transfer all the charges that can appear on the same indictment.

The transfer procedure may not be required at all where the case involves an indictable only offence, which can be sent under s.51 Crime and Disorder Act 1988, or where the new allocation procedure (once in force) is preferred. Guidance on the new allocation procedures will be issued in due course.

The decision to transfer shall be taken by the prosecutor and communicated to the court at the earliest opportunity. If Crown Court trial is appropriate, the notice should be served promptly and before the mode of trial / allocation decision has taken place. A notice of transfer should not be served in the youth court until the magistrates have considered venue and determined that the case is appropriate for Crown Court trial.

Essential Steps Checklist and Advice/Review Checklist in Rape Cases

An advice /review checklist has been developed in relation to rape and serious sexual offences. It is a non-exhaustive list but should be used by prosecutors in all such cases. See Annex E.

Rape cases in the Youth Court

A protocol issued by the Senior Presiding Judge for England and Wales November 2007

Historically, it was considered inappropriate for the Youth Court to accept jurisdiction in a rape case. However, the rule set out in R v Billam (1986) 1 All ER 985 could now be properly modified so that in the case of very young defendants it may be the appropriate jurisdiction R v (on the application of B & others) v The Richmond on Thames Youth Court(2006) EWHC 95. Further the Sexual Offences Act 2003 had widened the definition of rape resulting in other circumstances in which it may be appropriate to try rape cases in the Youth Court.

The determination of venue in relation to Youth Court matters is governed by section 24 of the Magistrates Court Act 1980, which provides that youths shall be tried summarily unless the defendant has been charged with such a grave crime that long term detention is a possibility.

A series of cases provided further clarification of what amounts to a grave crime. In R (on the application of H, A and O) v Southampton Youth Court (2004) EHWC 2912 (Southampton Youth Court No.2) it was stated that the court should ask itself whether there is a real prospect, having regard to the defendant's age, that he or she might require a sentence of, or in excess of, two years.

In considering whether the Youth Court should retain jurisdiction in a rape case, the court will need to consider the suitability of the Youth Court as a venue and the desirability of the case being heard by a Circuit Judge authorised to try serious sexual cases.

In the event that jurisdiction is retained, a request should be made to the regional listing co- ordinator for an authorised Circuit Judge to sit as a District Judge at the Youth Court under s.66 Courts Act 2003. The listing co-ordinator will liaise with the Resident Judge and/or the Presiding Judge as appropriate. The Justices Clerk for the region should be consulted and kept informed of all developments.

See Annex D.

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Advocacy

Appropriate questioning

Child witnesses should be questioned in a manner appropriate to their age and level of understanding. Intermediaries will often be helpful and, in some cases, essential in ensuring that questions are asked in a way that best enables the witness to understand and respond.

Advocates are, of course, entitled to challenge the evidence given by witnesses, however particular care should be taken with child witnesses to ensure cross-examination is conducted in plain and simple language and is not aggressive, hectoring, overly robust or demeaning. This is likely to be especially important in cases involving sexual offences, where giving evidence may be particularly difficult.

Inappropriate questioning not only prevents the child witness from giving their best evidence but may also cause acute distress to the child. This is unnecessary and avoidable and is therefore to be deprecated. Prosecutors should be robust in objecting to inappropriate questioning.

Guidance on how questions should be asked, inappropriate questioning (e.g. asking the child to demonstrate intimate touching), relevant extracts from the Equal Treatment Bench book and the NSPCC Good Practice Guidance can all be found in Victims and Witnesses: Safeguarding Children Guidance on Children as Victims and Witnesses .

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Sentencing and Court Orders

Sentencing

Prosecutors should be in a position to make application for relevant ancillary orders and to assist the court generally when sentencing. In particular, it is important that the prosecutor has regard to the protection of a particular victim or of the public.

Full guidance can be found in the Sentencing and Ancillary Orders and Sentencing of Dangerous Offenders sections of the Legal Guidance.

Prosecutors should also be aware of the sentencing guidelines in relation to sexual offences involving children (Sentencing Guidelines Council Sexual Offences Act 2003) and for offences involving cruelty and assault of a child (Sentencing Guidelines Council - Assaults and other offences against the person) and Overarching Principles: Assaults on children and Cruelty to a child.

Court Orders - in summary

See Home Office Review of the Protection of Children from Sex Offenders June 2007.

Notification s.80 s.103 Sexual Offences Act 2003

"Notification"(formerly Registration) applies to relevant offenders, as defined in Schedule 3. Some offences attract notification without any qualification. Other offences only attract notification if certain qualifying conditions apply (age of victim, length or type of sentence imposed.) If the offender is a "relevant offender" the length of time for which he must comply with notification is set down in the table at s.82.

Section 81 makes it clear that the new notification requirements apply to persons formerly subject to registration under Part I Sex Offenders Act 1997.

For notification post 01/05/2004 (see sections 83-96), the following information has to be provided in person, annually: N.I number; Fingerprint/photographs by Police; Address where resident for 7 days; Notification within 3 days of moving or in advance.

The notification period for a caution has been reduced to 2 years. A conditional discharge can be considered as a conviction for these purposes.

Under s.97 the police can apply to the courts for an order for offenders convicted, cautioned or subject to a finding abroad of the same or equivalent offences, to be subject to registration in this country. It applies to UK and foreign nationals and convictions after 1 September 1997.

There is power for interim orders and for appeals to the Crown Court.

Disqualification Orders s. 29 Criminal Justice and Court Services Act 2000

A Disqualification Order can only be made by a Crown Court or Higher Court to disqualify a person convicted of an 'offence against a child' from working with children.

Schedule 4 of CJ & CSA 2000 lists the relevant offences. A child is a person under the age of 18. The order may (and in some cases must) disqualify from working with children indefinitely. Qualifying sentences in broad terms are 12 months or more imprisonment or Young Offenders institution or guardianship or hospital order (and includes suspended sentences of 12 months or more).

The Court must have regard to: degree of harm to the victim; level of culpability of the offender; level of risk posed by offender to society; the need to deter others from acting in a similar fashion. These orders are retrospective (R v Field, R v Young, AGs references 37, 38, 44, 54, 51, 53, 35, 40, 43, 45, 41 and 42 of 2003. Judgement given 23.10.03).

With effect from 12 October 2009, some changes have been made to sections 24, 26-38 of the Criminal Justice and Courts Services Act 2000

The Safeguarding Vulnerable Groups Act 2006 provides that the legislation relating to disqualification orders will be fully repealed. The Government intends to initiate that full repeal once relevant provisions of the new Vetting and Barring Scheme (VBS) have come into force making disqualification orders redundant.

Because implementation of the VBS is being phased, repeal of disqualification orders is also being phased. Therefore from 12 October 2009, when barring and referral provisions of the VBS begin, disqualification orders remain available to the court, in certain circumstances.

Schedule 10 of the Safeguarding Vulnerable Groups Act 2006 (SVGA) makes provision for the repeal of: Sections 24, 26-38 of the Criminal Justice and Courts Services Act 2000 (CJCSA); s.42(1); schedule 4; and schedule 7 paras 155, 157 and 158. Also s. 299 Criminal Justice Act 2003 and Schedule 30.

Article 3 of the Safeguarding Vulnerable Groups Act 2006 (Commencement Order No 6, Transitional Provisions and Savings) Order 2009, which came into force on 12th October 2009, provides for the partial repeal only of some of the provisions of the CJCSA listed above.

With effect from 12 October 2009, sections 24, 26 to 38, and 42(1) of, and Schedule 4 to, the CJCSA will cease to have effect for the purposes of enabling a disqualification order to be made in relation to a person who is [already] barred from regulated activity by virtue of s.3(2) of the SVGA.

Also, the offence in section 35 of the CJCSA (of applying for, offering to do, accepting or working in a regulated position) will cease to have effect where an individual who is subject to a disqualification order:

(a) is barred from regulated activity by virtue of section 3(2) of the SVGA; or

(b) was so barred but no longer is; or

(c) is removed from the childrens barred list in accordance with paragraph 2(4) of the SVGA (Transitional Provisions) Order 2008 (i.e. after receiving representations from that person under the 2008 Order, the ISA decide to remove him or her from the childrens barred list).

Where paragraph (b) or (c) above applies, section 35 of the CJCSA ceases to have effect but only in relation to a disqualification order to which the relevant individual was subject immediately before being included in the childrens barred list and where the Independent Safeguarding Authority (referred to in the SVGA as the Independent Barring Board or IBB) knows of that disqualification order.

In essence, this means that a) where a person is already barred by the ISA no disqualification order can be made in respect of that individual. And b) where a person who is already subject to a disqualification order is barred by the ISA, any breach of that disqualification order will not be enforceable under the CJCSA provisions. Instead, where a person is barred from regulated activity, the barring offences in sections 7 and 9 of the SVGA will apply if that person seeks/offers to or engages in regulated activity or where another person knowingly permits the barred person to engage in regulated activity.

Where a person is not barred from regulated activity by virtue of s.3(2) or is no longer barred from such activity, disqualification orders in relation to that person are still available under the CJCSA provisions and, in relevant cases, prosecutors should continue to apply for such orders to be made, for the time being.

Current proposals are that in November 2010, the obligation to be monitored (in relation to new entrants to regulated activity) starts to take effect. Currently, there are a small number of offences which may lead to a disqualification order being imposed but which will not, of themselves, lead to automatic barring under the SVGA. (for example sections 13, 66 and 67 Sexual Offences Act 2003, child sex offences committed by children or young persons, exposure and voyeurism committed against a 16 or 17 year old).

If the power to make disqualification orders were repealed before the monitoring system became active, an individual who committed one of these offences might be able to engage in regulated activity unhindered. Once any new entrant to the workforce is required to be monitored however, the systems will be in place to ensure that the ISA will be informed if any applicant has committed one of these offences.

The Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 (SI 2009/37) refer to disqualification orders made before 20th January 2009 and after 20th January 2009.

Where a disqualification order was made prior to that date, a person is only automatically included in the childrens barred list if all the matters in regulation 3(2)(a) to (c) are satisfied.

Anyone subject to a disqualification order made before 20th January 2009, remains subject to the section 35 CJCSA offence until either the disqualification order is rescinded or the ISA complete their considerations under the Transitional Provisions Order (i.e. notwithstanding their inclusion in the new childrens barred list, individuals are to be subject to their old bar until their inclusion in the new list is confirmed).

In relation to a disqualification order made on or after that date, a person is automatically included in the childrens barred list (with the right to make representations unless the underlying offence is an automatic barring offence that does not attract representations see regulation 4(6) of those Regulations).

The fact that someone is fully confirmed on the childrens barred list does not mean that the disqualification order is no longer in existence. What it means is that that person no longer commits an offence under section 35 of the CJCSA they will commit an offence under section 7 of the SVGA if they seek/offer or engage in regulated activity whilst being barred from doing so under section 3(2) of the SVGA.

If a person were subject to a disqualification order immediately before they were barred from regulated activity under section 3(2) of the SVGA, and the ISA was aware of the disqualification order before that person was barred, section 35 of the CJCSA continues to have no effect when that person is removed from the childrens barred list but only in relation to that particular disqualification order. This means that once a person is removed from the childrens barred list, further disqualification orders can be made in relation to that person and section 35 will have effect in relation to any further disqualification orders unless the person is subsequently re-barred under the SVGA.

Sexual Offences Prevention Orders (SOPOs) s.104 Sexual Offences Act 2003

SOPOs replace restraining orders under s.5A Sex Offenders Act 1997 and sex offender orders under s.2 Crime and Disorder Act 1998. However, it is possible that there may still be cases where an offender is subject to one of the orders that pre-date the Sexual Offences Act 2003, and that he comes before the court for breach of the order.

A SOPO prevents an offender from doing certain specified acts e.g. living in a household with children under 16. The order lasts a minimum of 5 years and can be indefinite. Interim or full SOPOs are made when necessary to protect the public (or any particular members) from serious sexual harm from a defendant, following a conviction for an offence listed in Schedule 3 or 5, or after being found not guilty by reason of insanity or to have done the act charged but under a disability.

It is not the role of the prosecutor to make application for a SOPO - that is for the Chief Officer of police or lawyers acting on his behalf. Alternatively, an order can be made on conviction by the court of its own motion, reminded by the prosecutor, where appropriate, of the power to do so (preferably with a draft order for the court to consider).

For 10 18 year olds, application should only be made in exceptional circumstances.

Applications to vary, renew or discharge can be made by the offender or the police and there is a right to appeal the order or refusal to vary or discharge. Breach is a criminal offence. It is either way and carries up to 5 years on indictment. On conviction for breach, a conditional discharge cannot be imposed.

It is the responsibility of the CPS to prosecute the offence of breach of a SOPO under s.113 SOA 2003, irrespective of how the order was first made.

Prosecutors must ensure that they have identified in the Plea and Sentence document (PSD) (in cases where a PSD is required) that an offence may attract a SOPO in the event of conviction.

Thereafter, it will be important for prosecutors to be in a position to assist the court, if required, in determining whether the offender presents a risk that requires the public to be protected and that an order is required. This may be by way of information about previous convictions or cautions, or by drawing attention to certain features of the case under consideration.

Equally, such considerations may form part of the wider assessment of "dangerousness" under the dangerous offender provisions of the Criminal Justice Act 2003.

Foreign Travel Orders s.114 Sexual Offences Act 2003

A civil order can be made, if necessary, to protect children generally or any child (under16) from serious sexual harm from the defendant outside the UK.

The police can apply to Magistrates if the offender is a qualifying offender and, since the appropriate date (i.e. conviction / caution etc.), has acted in such a way as to give reasonable cause to believe the order is necessary. The duration of the order is for a fixed period, specified in the order of no more than 6 months. The order can impose a universal ban from travelling or from visiting certain countries. It applies to offenders subject to conditional (but not absolute) discharges. Breach of a foreign travel order is a criminal offence. No conditional discharge can be imposed for a breach.

Risk of Sexual Harm Order (RSHO) s.123 Sexual Offences Act 2003

This is a civil, preventative measure, order to deter unlawful or harmful sexual activity with a child. The police can apply for the order against anybody over 18 who has engaged in sexually explicit conduct or communication with a child or in the presence of a child on at least two occasions.

There is no requirement for a conviction. Whether the behaviour is sexual is based on whether a reasonable person would consider it to be. The order can be made if the court is satisfied it is necessary to protect children generally or a specific child from harm from the defendant.

The same procedure applies for variations and appeals as for SOPOs. A breach is a criminal offence, and the sentence is the same as for SOPOs. No order for a conditional discharge can be made. There is no notification requirement under a RSHO but once breached the defendant becomes subject to notification.

Forfeiture

Section 39 of the Police and Justice Act 2006 and Schedule 11 to the Act amend the Protection of Children Act 1978 to allow the police to forfeit indecent photographs of children held by the police after any lawful seizure. The provisions came into effect on 1 April 2008 and are retrospective. Images can be forfeit where a decision has been made not to proceed with a prosecution or there has been no conviction or where a caution has been issued.

At court, following a conviction, prosecutors should always request forfeiture of indecent images of children using the Powers of Criminal Courts (Sentencing) Act 2000.

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Annex A

Definition of Child Abuse - "Working Together to Safeguard Children A guide to inter-agency working to safeguard and promote the welfare of children 2006"

"Abuse and neglect are forms of maltreatment of a child. Somebody may abuse or neglect a child by inflicting harm, or by failing to act to prevent harm. Children may be abused in a family or in an institutional or community setting, by those known to them or, more rarely, by a stranger. They may be abused by an adult or adults, or another child or children."

Physical abuse

Physical abuse may involve hitting, shaking, throwing, poisoning, burning or scalding, drowning, suffocating, or otherwise causing physical harm to a child. Physical harm may also be caused when a parent or carer fabricates the symptoms of, or deliberately induces, illness in a child.

Emotional abuse

Emotional abuse is the persistent emotional maltreatment of a child such as to cause severe and persistent adverse effects on the child's emotional development. It may involve conveying to children that they are worthless or unloved, inadequate, or valued only insofar as they meet the needs of another person. It may feature age or developmentally inappropriate expectations being imposed on children. These may include interactions that are beyond the child's developmental capability, as well as overprotection and limitation of exploration and learning, or preventing the child participating in normal social interaction. It may involve seeing or hearing the ill-treatment of another. It may involve serious bullying, causing children frequently to feel frightened or in danger, or the exploitation or corruption of children. Some level of emotional abuse is involved in all types of maltreatment of a child, though it may occur alone.

Sexual abuse

Sexual abuse involves forcing or enticing a child or young person to take part in sexual activities, including prostitution, whether or not the child is aware of what is happening. The activities may involve physical contact, including penetrative (e.g. rape. buggery or oral sex) or non-penetrative acts. They may include non-contact activities, such as involving children in looking at, or in the production of, sexual online images, watching sexual activities, or encouraging children to behave in sexually inappropriate ways.

Neglect

Neglect is the persistent failure to meet a child's basic physical and/or psychological needs, likely to result in the serious impairment of the child's health or development. Neglect may occur during pregnancy as a result of maternal substance abuse. Once a child is born, neglect may involve a parent or carer failing to: provide adequate food, clothing and shelter (including exclusion from home or abandonment); protect a child from physical and emotional harm or danger; ensure adequate supervision (including the use of inadequate care -givers); ensure access to appropriate medical care or treatment. It may also include neglect of, or unresponsiveness to, a child's emotional needs.

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Annex B

Video Security

Video security is outlined in Annex J of Achieving Best Evidence. In summary, the following procedures should be observed:

1) After the interview the video should be rewound and the "record protect" device activated. The tape should be checked for quality and the master tape sealed in the presence of the interviewee. The seal should be signed by all present. In the case of a DVD, the disk should be removed, the label completed and the disk checked for audio and visual quality. It should then be placed in a box to minimise the risk of damaging the recorded surface of the disk. The master copy should be sealed in the presence of the interviewee and signed by all present. It is recommended that during the course of the interview, the equipment operator should complete a short index of the interview.

2) The master tape and all copies should be individually labelled and identified in the log book. The master seal should not be broken except with the authority of the CPS in the presence of a CPS representative and for the purposes of copying or editing.

3) The videos and disks should be stored in optimum conditions details of which are described in Annex J of Achieving Best Evidence.

4) The following points should be observed in respect of copying and access:

copying and access should be kept to a minimum
no-one should have access to any recording unless they are willing to give an undertaking in the form prescribed by ABE to safeguard it
no persons accused or implicated in the alleged offence should have custody of or unsupervised access to any such recording
the number of copies should be kept to a minimum
an entry must be placed in the police log every time a recording is borrowed

5) Similar logs should be maintained by any other body authorised to have a copy of the recording

Four copies are usually produced for the joint investigating team, the court, the defence and the prosecution. Applications from any other individual must be carefully scrutinised and advice sought (see ABE Annex J 6.3 5). In all cases, an undertaking must be completed in the required form.

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Annex C

Rape Specialist Laywers - Standard

Role

Rape specialists are CPS prosecutors of level C2/Senior crown Prosecutor or above responsible for advising upon, reviewing and having conduct of rape cases throughout the life of the case in accordance with the CPS Policy on prosecuting cases of rape. They provide a second opinion to fellow specialists considering taking no further action, dropping a case or substituting lesser charges in a rape case. They provide support and information to their Area Rape Coordinator and undertake monitoring of counsel.

Training

Should have completed training and development addressing the law and practice of prosecuting rape cases including:

Sexual Offences Act 2003
Special measures and dealing with vulnerable and intimidated witnesses
Domestic violence
Communicating with victims and witnesses.

Also required to complete updated national and local training and development designed for rape specialist lawyers when available.

Experience

Should have:

Substantial experience of advising on cases of rape or other serious sexual assault and satisfactorily acting as reviewing lawyer in contested cases in accordance with CPS policy and guidance.
Or:
Satisfactory conduct of at least three contested cases of rape or other serious sexual assault in accordance with CPS policy and guidance with the assistance of a mentor who is an existing rape specialist or a Specialist Rape Advocate.

and

Should have attended at least one contested rape trial at the Crown Court
Should have visited a local SARC if the Area has one

HCAs

HCAs should be rape specialists in order to prosecute rape trials

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Annex D

Rape Cases in the Youth Court

A Protocol Issued by the Senior Presiding Judge

Introduction

1. This protocol sets out the procedure regarding the hearing of rape cases in the Youth Court and has been written in consultation with HMCS and the Chief Magistrate.

Commencement and amendment

2. The protocol will take effect forthwith and may be amended as appropriate by the Senior Presiding Judge.

Background

3. Historically, the position was that the Youth Court should never accept jurisdiction in a rape case. (R v Billam (1986) 1 All ER 985)

4. However, recent authorities have also suggested that the rule set out in Billam could now properly be modified so that in the case of very young defendants it may be appropriate to accept jurisdiction. (R (on the application of B & others) v The Richmond on Thames Youth Court (2006) EWHC 95, and Stones Justices Manual).

5. Further, the Sexual Offences Act 2003 widened the definition of rape resulting in other circumstances in which it may be appropriate to try rape cases in the Youth Court.

6. The determination of venue in relation to Youth Court matters is governed by section 24 of the Magistrates's Courts Act 1980 which provides that the youth shall be tried summarily unless the defendant has been charged with such a grave crime that long term detention is a possibility. (Section 24(1)(a) of the Magistrates Court Act 1980).

7. A series of cases provided further clarification of what amounts to a grave crime. In a recent case, it was stated that the court should ask itself whether there is a real prospect, having regard to the defendants age, that he or she might require a sentence of, or in excess of, two years.

Procedure

8. In considering whether the Youth Court should retain jurisdiction in a rape case, the court will need to consider:

The suitability of the Youth Court as a venue.
The desirability of the case being heard by a Circuit Judge authorised to try serious sexual cases.

9. In the event that jurisdiction is retained, a request should be made to the regional listing co-ordinator for an authorised Circuit Judge to sit as a District Judge at the Youth Court.

10. The listing co-ordinator will liaise with the Resident Judge and/or the Presiding Judge where appropriate in determining the Circuit Judge.

11. The Justices Clerk for the region should be consulted and kept informed of all developments.

November 2007

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Annex E

For pre-charge advice/decision making, file review, case preparation and case management

Prosecution Team Working Together to Bulid Better Cases

RAPE SPECIALIST (File allocation)

FLAGGING ON CMS (rape, DV, VIW, identifiable victim, media interest)

MEDIA INTEREST REFERRAL

EVIDENCE (quality, strengths and weaknesses, how can we case build?)

Visually Recorded Interview (confirm viewed/comment on quality, admissibility, transcribing and editing)
Consent/Capacity issues
Evidential/ Conclusive presumptions
Medical evidence (forensic physician should attend conference and give live evidence unless there are particular/ considered reasons)
DNA and other scientific evidence (consult with forensic scientist)
Fingerprints
CCTV
Phone analysis/records/texts/images/cell site/computer records
Birth certificates
s.41 YJCEA 1999 applications (required to be in writing)
Bad character of the accused (previous convictions and complaints including foreign)
Hearsay
Consideration of any defence put forward
Possible collusion between witnesses
Potential abuse of process

BAIL/CUSTODY ISSUES

THRESHOLD TEST/FULL CODE TEST (evidential and public interest)

CHARGES/INDICTMENT

Old/new legislation/li>
Which behaviour is covered by which charge
Adequate sentencing powers
Acceptability of pleas (taking account of views expressed by the victim)
DPP consent

UNUSED MATERIAL

MG6C, D, and E
Previous complaints by the victim
Witnesses' previous convictions
Tendered witnesses
Criminal Injuries Compensation Authority claims

THIRD PARTY MATERIAL (consents or court order required for disclosure)

Social Services, Educational, Medical, Therapy, Counselling, Adult and Child Disability Services
Care proceedings/family/disciplinary proceedings
SARC records
ISVA records

NWNJ

Special measures for vulnerable/intimidated witnesses (including intermediaries)
Early special measures meeting
Meeting with witness
Other measures (breaks, medication, secure entrance)
Witness summons/reluctant witness hearing

APPLICATIONS

Hearsay
Bad Character
Special Measures

DECISION TO NFA OR TO PROCEED ON LESSER CHARGE (Second rape specialist to be consulted and their opinion recorded)

DCV (is a letter/meeting required?)

SENTENCING

Plea and Sentencing document (in accordance with AG's guidelines)
Dangerousness provisions, extended sentences, life/indeterminate sentences
Victim personal statement

ANCILLARY ORDERS (SOPO, disqualification)

TRIAL ADVOCATE (accredited counsel, HCA rape specialist advocate)

INSTRUCTIONS TO COUNSEL

Analysis of the evidence
Confirm visually recorded interview viewed, comment on quality, admissibility, transcribing and editing
Which behaviour is covered by which charge
Acceptability of pleas (taking account of views expressed by the victim)
Reminder to counsel to introduce themselves and provide explanations/updates to witnesses
Reminder that offensive and irrelevant cross-examination should be challenged
Reminder to tackle inappropriate cross-examination about previous sexual history
Reminder to consider sentencing and ancillary orders including SOPOs and compensation
Information on third party material with instructions that disclosure should only be made in accordance with the statutory tests
Reminder to consider seeking an adverse inference where S. 11 CPIA allows
Request a written report on any case that results in an acquittal

CONFERENCE WITH COUNSEL (to include OIC and forensic physician)

PROACTIVE CASE MANAGEMENT (e.g. Action dates, pre-trial checks and trial readiness)

OUTSTANDING ISSUES

N.B. THIS LIST HIGHLIGHTS ISSUES COMMONLY FOUND IN RAPE CASES BUT MAY NOT BE EXHAUSTIVE. PROSECUTORS MUST CONSIDER ALL ISSUES RELEVANT TO THE CASE.

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Annex F

Outline of some of the lessons from the Baby P Serious Case Review 2008 and the Lord Laming Review 2009

Strategy meetings

Police can request follow up strategy meetings during complex or prolonged investigations.
Strategy meetings should involve key staff from health and education, as well as police and childrens social care services.

Risk Assessment

New incidents can be interpreted in terms of the existing understandings of family dynamics, with insufficient attempts to use the incidents to prompt re-assessments.
Proper account needs to be taken of historical concerns.
Holistic paediatric assessments (as opposed to Emergency Protection Order medicals) can be undertaken in response to a s.47 enquiry.
Medical reviewers a combination of injuries should raise the likelihood of physical abuse in any child. Where that child is also on the protection register, this is especially likely.
Apparent co-operation of parent tends to provide reassurance for professionals about mothers parenting skills.
Teachers are well positioned to observe, record and communicate to key workers any comments, writings, drawings made by children who are subject to a child protection plan.
Specific questions need to be asked about household composition. Other siblings need to be interviewed. Where the family is in receipt of State benefits, it may be necessary to be particularly alert, to ask specific questions and to look for the evidence of a cohabitee.

Chronologies and overview diagrams can provide useful overviews

Genograms illustrating the most relevant members of the household and personal network.
Key dates of the most significant events and professional decisions.
Clear chronologies of events and key points at which decisions are made.
Agencies involvement presented chronologically.
Glossary of abbreviations used.

Challenging

Even if parents are trusted, an open and inquisitive attitude by professionals needs to be maintained at all times.
Robust challenge to procedures, practice and performance may sometimes be necessary.
There can be a tendency, where working with families where neglect may be a feature, to see a positive report as effectively cancelling out a concern.
Full exploration of comment is required where, for example a carer says that a very young child bruises easily and they might be accused of hurting the child.
Where child is not yet a toddler and apparently fell down stairs, full clarification of circumstances is required.
Paediatrician attendance at strategy meeting is very important where medical opinion is of central significance. The paediatrician can advise on findings of medical examinations and the need for any further assessments e.g. X rays or scans. This will assist with perceptions of risk.

Information and communication

Clear procedures and protocols need to be established for communication and collaboration between social care, health and police services to ensure effective assessment, planning and review of cases.
The key factors in deciding whether or not to share confidential information are necessity and proportionality, i.e. whether the proposed sharing is likely to make an effective contribution to preventing the risk and whether the public interest in sharing information overrides the interest in maintaining confidentiality. In making the decision you must weigh up what might happen if the information is shared against what might happen if it is not and make a decision based on professional judgement.[Information sharing: Guidance for practitioners and managers. HM Government 2008]

Serious Case Reviews

There can be too much emphasis on the writing of an often long and unwieldy report with insufficient focus by LSCBs on whether lessons are being learned from a child's death or serous injury and whether action plans are subsequently implemented.
The future of SCRs depends, to a large degree on the guarantee of confidentiality. Full reports should therefore remain confidential beyond the immediate partners involved in a case, the relevant inspectorates, Government Office and the relevant government departments.

Local Safeguarding Children Boards (LSCBs) and Children's Trusts

Ultimately it is the Children's Trust that is responsible for improving the well- being of children in the area across all five Every Child Matters outcomes, including keeping children safe.
The responsibilities of the LSCB, in ensuring that the multi-agency partners in each local area are co-operating to safeguard and promote the welfare of children effectively, are a fundamental part of the overarching responsibilities held by the Children's Trust.

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How to use this Legal Guidance

PDF Information

Child Abuse: Guidance on Prosecuting cases of Child Abuse

Introduction

General Principles

Standards

Expedition

Sensitivity

Fairness

Definition of child

Definition of child abuse

CPS definition for CMS flagging purposes

Code for Crown Prosecutors

Concurrent proceedings

Local Safeguarding Children Boards (LSCB)

Independent Safeguarding Authority (ISA)

Protection Orders

Offences committed by children against children

Achieving Best Evidence (ABE) Video Interviews

Interviews with children

Initial contact with child witnesses

Consent

When can the child be further interviewed

Pre trial Witness Interviews

Children with disabilities or where the child is very young or psychologically disturbed

The child who becomes the suspect

Review of video evidence

PCMH / PTR case management issues

Refreshing memory

Video security

Transcripts and ROVIs

Video interviews as unused material

Competence and Compellability

Competence

Sworn and unsworn evidence

Compellability

Witness Support and Preparation

Statutory and Common Law Offences

Sexual Offences

Sexual Offences Act 2003

Human Trafficking for sexual exploitation

Abuse of children through prostitution or pornography

Offences outside the UK

Possession of indecent photographs of children

Indecency with Children Act 1960 repealed 1 May 2004

Meeting a child following sexual grooming

Abuse of position of trust

Familial child sex offences

Sentencing Guidelines

Offences of assault, abduction, kidnapping, cruelty/neglect

Two parents/carers who is responsible?

Defence of reasonable chastisement / lawful correction

Child abduction

Kidnapping

Offences of child cruelty, neglect and violence

Charging Practice

Sentencing guidelines

Offences involving the death of a child

Death of a child in its mother's womb

Familial Homicide

Sudden Infant Death Syndrome (SIDS) and Shaken Baby Syndrome (SBS)

Child Destruction, Infanticide, Endeavouring to Conceal the Birth of a Child and using poison or instruments to cause miscarriage

Indictments

Criminal Procedure (Amendment) Rules 2007 - Prosecuting multiple offending

Domestic Violence, Crime and Victims Act 2004 -Two-stage Trials

Old/New Legislation Dates to remember

Drafting indictments where counts straddle the implementation of the dangerous offender provisions

Section 55 Violent Crime Reduction Act 2006 - Transitional Provisions for the Sexual Offences Act 2003

Bad character R v Wallace and R v Chopra

Issues Commonly Arising in Child Abuse Cases

Medical/scientific evidence

Medical evidence

Other scientific evidence

Presence of the expert at the conference and the trial

Second opinions

Disclosure guidance

Collusion and innocent contamination

Compensation

Family court concurrent proceedings

Corroboration