Child Sexual Abuse: Guidelines on Prosecuting Cases of Child Sexual Abuse
- Early consultation between the police and CPS
- How cases will be managed within the CPS
- Context and circumstances of child sexual abuse
- Supporting victims and witnesses
- Counselling and therapy
- The statement taking stage
- Telling a victim about other allegations
- The credibility or reliability of a child or young person
- Identifying children who may be at risk of sexual exploitation
- Previous convictions of the child/young witness
- Assessing the credibility of child abuse allegations: circumstances of the suspect
- Other case building issues
- Offending patterns/behaviour of the offender
- Case presentation in court
- Special measures
- Support given to victims and witnesses in court
- Adult victims of childhood sexual abuse
- Witnesses who withdraw support for the prosecution or indicate that they are no longer willing to give evidence
- Criminal and family proceedings
- Third party material
- Protocol with the Local Authority
- Obtaining material relating to Family Court proceedings
- Information sharing between agencies
- Annex A
- Annex B
- Annex C
- Annex D
- Annex E
- These guidelines are designed to set out the approach that prosecutors should take when dealing with child sexual abuse cases. Experience has shown that these cases bring with them particular issues that differentiate them from other types of case particularly in terms of, for example, a victim's response both to the sexual abuse and the subsequent intervention by the police. These guidelines are intended to cover the range of child sexual abuse, including the abuse referred to as 'child sexual exploitation' and which featured for example in the cases of R v Safi, Aziz, Hassan and others ('Operation Span') and R v Jamil, Dogar, Dogar, Hussain, Karrar, Karrar and Ahmed ('Operation Bullfinch'). The guidelines are intended to be inclusive and should be applied to cases where a sexual offence has been committed against a child or young person, unless there are good reasons why not in a particular case and these reasons are noted clearly by the prosecutor. The guidelines also include cases of adult victims of sexual abuse in childhood. These guidelines replace the interim guidelines issued on 11 June 2013 and come into immediate effect.
- The guidelines will on occasion refer to victims as 'she' or 'her'. However, we fully recognise that boys as well as girls can be victims of child sexual abuse and the principles stated below, where relevant, will apply equally to boys as well as girls. Similarly offenders are known to be female as well as male, although it is recognised that the majority of offenders are male.
- The guidelines should be read in conjunction with other relevant guidance, including the CPS Rape and Sexual Offences (RASO) Legal Guidance which sets out the approach to be taken in cases involving allegations of rape and sexual assault. Of particular relevance are:
- Chapter 2, RASO Legal Guidance, which sets out the principal offences of the Sexual Offences Act 2003;
- Chapter 3, RASO Legal Guidance, which deals with the issue of consent;
- Chapter 21, RASO Legal Guidance, which discusses some of the myths and stereotypes around rape and sexual violence;
- CPS Youth Offenders Legal Guidance, section Sexual Offences and Child Abuse by Young Offenders; and
- Human Trafficking and Smuggling Legal Guidance, which sets out detailed advice on trafficking related issues.
- In large or complex child sexual abuse cases there should be early consultation between the police and the CPS. The CPS should be consulted on and informed of the investigation strategy so that early advice can be provided to the police if necessary. The decision to involve the CPS at an early stage is a matter for the police but experience has shown that early CPS involvement can help address some of the evidential or presentational issues that may arise at a later stage of a case.
- It is important that the police and CPS work closely together and, in more complex cases, joint case review meetings should take place periodically so that progress can be checked and advice on case matters can be given. The frequency and timing of the meetings will be dictated by the size and scale of the investigation and prosecution. However, it is important that these take place so that a strong prosecution case can be built.
- The relevant CPS point of contact for the police is the Rape and Serious Sexual Offences (RASSO) Unit in each CPS Area. The RASSO Unit is a specialist prosecutor unit which provides a central point of expertise in the CPS Area and conducts the prosecution of all rape and serious sexual offences cases locally, including child sexual abuse cases.
- In particular, the local police should be aware of the identity and contact details of the CPS Area Child Sexual Abuse (CSA) lead. The Area CSA lead is based in the Area RASSO Unit. They have an important role as they are specialist rape prosecutors who provide particular expertise, guidance and good practice in child sexual abuse cases. The police are encouraged to use the Area CSA lead as the single CPS point of contact in these cases, at least initially until case ownership is allocated within the RASSO Unit.
- The Area CSA leads are also part of a national CPS network established to ensure that best practice is shared and overseen by the National CSA lead. The roles and responsibilities of the National and Area CSA leads can be found at Annex A. The national CPS network will support and play an important role in raising the level of expertise within the CPS to prosecute child sexual abuse cases and support training initiatives in this area. In addition, the DPP has extended the remit of rape advocates on the Advocates Panel to include other sexual offences involving children. This means that advocates prosecuting in court in all child sexual abuse cases will now be specialists and will have had appropriate training.
- Child sexual abuse covers a range of offending behaviour and types of offenders (which is defined in more detail in Annex B). It is therefore important that prosecutors have regard to the context and circumstances in which the offending is alleged to have taken place, as this will determine how the evidential case should be built and what are relevant lines of enquiry.
- There is no one model of child sexual abuse. Sexual abuse of children and young people can be perpetrated by family members, family friends, girlfriends and boyfriends, gangs, 'peer on peer', strangers, adults via the internet and people in positions of trust such as teachers or carers. Institutional sexual abuse may occur in any care, health, religious, or academic setting and may be carried out by an individual or group of individuals. Children who are very young or with special needs may be particularly vulnerable to abuse.
- Online grooming and abuse can take place through chat rooms and social networking sites and gaming devices which have the ability to connect to the internet. Offenders may target hundreds of children at a time and once initial contact with a child is made this can escalate into threats and intimidation. The online abuse can be an end in itself without any contact offences taking place, but in other cases contact offences can occur.
- Coercion and manipulation often feature in abusive situations so that the perception of what is happening is sometimes difficult for the child or young person to understand. Offenders may groom not only the child or young person but also their family which can mean that the parent or guardian trusts the offender as a friend of the family or potential boyfriend. Conversely, an offender might make threats to the child or young person or members of their family in order to keep them in an abusive situation.
- Child sexual abuse comes in a number of different forms. Sexual abuse by coordinated networks is a form of child sexual abuse that has become more prominent recently and is referred to as child sexual exploitation (which is defined in more detail in Annex B). These networks may be informal clusters of people linked through a set of victims or 'friendship' groups or they can be more organised criminal groups or gangs. Children and young people may be groomed into 'party' lifestyles where they go to houses, flats, hotels and bed and breakfast accommodation with numerous men and other child victims. Sometimes a single relationship may be formed, but in some cases, there is no single relationship and instead a general network exists. The 'parties' are usually organised by adults with young people sometimes being coerced into bringing friends along.
- Offenders may avoid suspicion by taking victims to be abused only for a short time, or during school hours or returning them home before anyone considers them to be missing or absent. The fact that a victim of abuse is maintaining a seemingly normal routine does not mean that they cannot have been the victim of sexual abuse.
- Prosecutors should also be aware that offenders may use various control elements as a tool to stop a victim reporting the sexual abuse. For example the control might take the form of threatening to publish photographs or recordings of them, including images of them naked or being abused or threatening harm to the victim and/or their family. The exertion of control could sometimes be through the offender implicating the victim in other criminal activity (e.g. possession of illegal drugs or shoplifting).
- Another example of the offender exerting control over the victim, which might be particularly relevant to some Black and Minority Ethnic (BME) communities, is that the offender may claim the victim has brought shame on their family and use this as a means of controlling them. In this regard, prosecutors should be aware of the additional cultural barriers that some BME victims might face in coming forward and reporting abuse, as there may be pressure on the victim about what damage such allegations might do to the standing or 'honour' of their family.
- Victims and witnesses should be made aware from the outset of the investigation exactly what is expected of them, particularly in terms of attending court and giving evidence, and they should be offered support to help them in the process. Support for victims and witnesses can be provided in a number of ways before, during, and after criminal proceedings. It is important that the need for support is identified early and kept under close review during the progress of the case. Prosecutors should proactively raise this matter in case discussions with the police and other relevant agencies so that victims and witnesses are given the best possible support. Where appropriate, parents and guardians should also be made aware from the outset what is expected and the support that can be offered. (It would be inappropriate if a parent or guardian was at the centre of the allegations).
- It is also important to recognise that since many of the victims and witnesses will be children or young people, the support available before, during and after trial in court should be explained to them in age appropriate terms (or developmentally appropriate terms) so that they understand what is being discussed and, where possible and appropriate, the parents or guardians are involved and the support available is also discussed with them. It should be noted that this support is distinct and separate from counselling (which is dealt with in paragraphs 32 to 34 below).
- Some police forces may appoint Family Liaison Officers or officers with a similar role to support victims of child sexual abuse.
- Children and young people who have been the subject of sexual abuse are likely to require a very high level of support. The police will be responsible primarily for facilitating this, although they will not be responsible for delivering emotional or psychological support. Achieving Best Evidence in Criminal Proceedings - Guidance on interviewing victims and witnesses, and guidance on using special measures (ABE) provides guidelines for pre-trial preparation of young victims and witnesses and should be followed closely. The guidance (re-published in 2011) provides assistance for those responsible for conducting video-recorded interviews with vulnerable and intimidated witnesses as well as those tasked with preparing and supporting witnesses during the criminal justice process.
- The prosecutor has an important part to play in ensuring that the requisite support is provided and should be asking questions about this from the outset of their involvement in the case. Prosecutors should be aware of the type of support available and, if necessary, should be able to signpost this support to the child or young person (or their parent/carer) via the police officer in the case or the Witness Care Unit, as appropriate.
- Specialised support is provided by a range of organisations and such support is likely to be essential in ensuring that the child or young person (and where appropriate, their parents or guardian) maintains their engagement with the criminal justice process. Support can be provided by a wide range of agencies both local and national, e.g. Rape Crisis England and Wales, the Survivor's Trust, National Society for the Prevention of Cruelty to Children, and Barnardo's. In some areas, the Witness Service/Victim Support provides a specialist Young Witness Service, and there are also other specialist support services such as Independent Sexual Violence Advisors (ISVAs) that play an important role and should be considered as a vital source of support.
- ISVAs support victims of rape and sexual violence, including victims of child sexual abuse. They are victim-focused advocates who work with people who have experienced sexual violence, helping them to access the support services that they may need. They are independent from the police and are distinct from therapists, counsellors and Registered Intermediaries.
- The support provided by an ISVA will vary from case to case, depending on the requirements of the victim and their particular circumstances. However, the main role of an ISVA includes making sure that victims of sexual abuse have the best possible practical advice on:
the counselling and other services available to them;
the process involved in reporting a crime to the police; and
taking their case through the criminal justice process, should they choose to do so.
- Prosecutors should know whether ISVAs operate in their area and whether they specifically provide support to victims of child sexual abuse.
- Attendance at court for trial should be discussed in advance with the victim or witnesses (and where appropriate, their parents/guardian) in order that any fears can be addressed, such as being cross examined or being seen entering the court building by the defendants and their associates. Wherever possible, practical arrangements should be made to address the concern, e.g. visits to court to take place in advance of the trial so that the victim can familiarise themselves with the venue and processes involved; and by using entrances and/or using vehicles at the trial itself that facilitate discreet arrival and departure from court. This discussion should take place more than once as the victim or witness may change their mind, or have new concerns, the nearer it gets to the date of the trial.
- With the approval of the court, a victim or witness can have a supporter present when being cross examined in a live link room for the purposes of providing emotional support to reduce anxiety and distress and improve the accuracy of their recall. The Youth Justice and Criminal Evidence Act 1999, as amended by the Coroners and Justice Act 2009, provides that, when making a live links direction and after taking into account the views of the witness, the court may also direct that a person specified by the court can accompany the person when giving evidence by live link. This person could be, for example, a volunteer from Victim Support or the Witness Service or from a more specialised support service such as the NSPCC or an ISVA. There are also a number of smaller local support services who can also provide effective support and should be considered. Where the trial is taking place in a court some distance away from where the victim or witness usually reside, active consideration should be given as to whether the victim or witness in these circumstances can give evidence by live link from a location nearer to their home.
- The role of the supporter in the live link room is to provide emotional support and they must have received appropriate training. Victim Support and other support organisations locally may provide this service. The supporter should have a relationship of trust with the witness, should not be a party to, or a witness in, the case and must only have basic information about the case.
- Supporting and engaging with victims (and where appropriate, their parents/guardian) should continue after the court process has concluded, regardless of the outcome, and is often provided by the relevant support organisations. There may also still be risks to the victim that need to be reduced and managed by the police and other agencies including social services; the victim may still be at risk of further exploitation by others.
- The Code of Practice for Victims of Crime (the Victims' Code) sets out the minimum standard of service and aims to ensure that victims of crime are provided with timely, accurate information about their case at all stages of the criminal justice process. Prosecutors should be aware of these minimum obligations.
- The nature and sensitivity of child sexual abuse cases will inevitably mean that prosecutors (and the police) should go beyond the minimum requirements of the Victims' Code where appropriate to do so, and this should be agreed, recorded and actioned by the prosecutor and the police in the case.
- The CPS guidance Provision of Therapy for Child Witnesses Prior to a Criminal Trial is clear that the best interests of the victim or witness are the paramount consideration in decisions about therapy. There is no bar to a victim seeking pre-trial therapy or counselling and neither the police nor the CPS should prevent therapy from taking place prior to a trial. Prosecutors should be familiar with the content of the CPS guidance on pre-trial therapy so that they can advise police and witnesses on the correct approach.
- Providers of counselling or therapy should ensure that records are kept and that the child or young person (and if relevant, parents or guardian) is advised at the start of the process that there may be a requirement to disclose the fact that counselling has taken place, particularly if detail of the alleged offending is raised. Experience over a number of years has shown that properly conducted and recorded counselling or therapy has not caused problems with the criminal trial process. Where the therapist or counsellor is known to the investigation, they should be briefed at an early stage to inform them about the court process and their disclosure obligations.
- Prosecutors have a duty to disclose the fact that a victim has undergone therapy or counselling and to disclose any other matter which is determined by the usual tests as to whether it is relevant to an issue in the case. This is part of the continuing duty on the CPS to disclose.
- Particular care should be given when deciding how to take the victim's statement. A video recorded interview (and subsequent use of the live link in court) is often the most appropriate means but may not always be so. For example, if the abuse of the victim has been filmed and the victim does not want to be videoed as a consequence.
- Practical matters to consider when visually recording a victim's interview include ensuring that there is a close shot of the head and shoulders of the witness, even if slightly side on, rather than from a distance where facial characteristics are too remote. Consideration should also be given, if possible, to a second camera showing the witness's more general body language.
- The assistance of a Registered Intermediary should be considered at this stage. They can help the victim give their account in the interview and understand what is being asked of them. The earlier the intervention the more likely it is that successful rapport building will take place and the child or young person will be able to give their best evidence. Even if the victim appears to understand, they are unlikely to be familiar with the terms sometimes used in questions posed in interviews, or may not understand a term in the same way as the interviewer, and an Intermediary can ensure that age appropriate language (or developmentally appropriate language) is used and terms are explained.
- A victim of child sexual abuse may not give their best and fullest account during their first recorded (ABE) interview or statement. This may be for a variety of reasons: they could have been threatened; they might be fearful for themselves or their family; the offending may have been reported by others and they may be reluctant to cooperate at that stage. They might not have identified themselves as a victim or they could be fearful that the police will not believe their allegations. They may initially distrust the police and could well use the interview to test the credibility of the police.
- The account given may take a number of interviews, with the child or young person giving their account piecemeal, sometimes saving the 'worst' till last, having satisfied themselves that they can trust the person to whom they are giving their account.
- Carefully thought out patient intervention by the police and other agencies can ultimately disrupt and break the link to the offender(s). A seemingly contradictory initial account is therefore not a reason in itself to disbelieve subsequent accounts given by the victim and these contradictory accounts should instead be seen as at least potentially symptomatic of the abuse.
- The police must inform the victim of their right to make a Victim Personal Statement (VPS) and it would be appropriate to do this at the statement taking stage. Whether and when to make a VPS is a decision for the victim, and it is therefore important that police clearly explain the purpose of the VPS and the way in which it will be used (i.e. that it will be disclosed to the defence, may be read out or played in court and could be reported on in the media). It should also be made clear that if the victim does not wish to make a VPS at the time they give their evidential statement, they may make a VPS later. Careful consideration should be given to when and how to take the VPS, taking into account the issues highlighted in paragraphs above, including talking to the parents or guardian if appropriate.
- There is no rule which prevents victims being told that they are not the only ones to have made a complaint of abuse. If such a rule existed, and it was taken to its logical conclusion, it would mean that any victim who came forward having learned about offences committed against others could never pursue his or her own complaint.
- In terms of enabling a child or young person to give an account of what has occurred to them, they can be told, in very general terms, that the suspect has been the subject of complaints by others. Doing so may strengthen their resolve to continue their engagement with the criminal justice process.
- In most circumstances this should only be done after the victim's statement has been given or a video interview has taken place. However, in exceptional circumstances, and with the authorisation of a police officer of at least Superintendent rank, this may take place before the statement has been given or a video interview has taken place if it is considered to be necessary in all the circumstances of the case.
- However, the details of the other allegations should not be disclosed and a careful record should be kept of what the child or young person has been told.
- Informing a victim of the existence of other allegations of a similar nature or proactively contacting a potential victim based on a clear intelligence assessment (e.g. they are known to associate with the suspect) is very different to what is sometimes referred to as 'trawling'.
- The term 'trawling' is used in this context to describe the process whereby the police contact potential victims even though they have not been named in any of the statements given in the course of the investigation and there is little if any intelligence to suggest the individual might be a potential victim. Such a process should be avoided because of the risk that it may give rise to false allegations. For example, in some cases involving allegations of abuse in a care home, it had been police practice years ago to contact all, or a significant proportion of, those who had been resident in the institution at the time that the offences were alleged to have taken place, rather than taking an intelligence-led approach towards identifying potential victims. This practice of "trawling" was criticised heavily in court and led to a number of cases collapsing, but contacting potential victims on a firm intelligence or evidence led basis is not prevented.
- When assessing the credibility of a child or young person, police and prosecutors should focus on the credibility of the allegation, rather than focussing solely on the victim.
- A number of factors have previously militated against some children and young people being regarded as credible victims of sexual abuse. These include:
- the offence was not reported immediately after its commission;
- the account given was inconsistent;
- the victim 'voluntarily' returned to the alleged abuser; ,li>the victim has a learning disability or mental illness;
- the victim is perceived as consenting to sexual activity;
- the victim has previously told untruths about other matters; and,li>the victim has been, or is, abusing drink or drugs.
- These factors have tended to be seen as undermining the credibility of the victim's account. However, these factors may, in fact, point the other way and could be seen as supporting the allegations of sexual abuse, not least because the behaviour set out above are often seen in victims of abuse. Police and prosecutors should therefore look to build a case which looks more widely at the credibility of the overall allegation rather than focusing primarily on the credibility and/or reliability of the child or young person.
- A victim's circumstances or experiences will often influence their actions and it is important that prosecutors have an understanding of these issues. Victims of sexual abuse may have a chaotic background or lifestyle and they may not display the 'usual' behaviours that one might expect from a victim of a sexual offence. They may crave love and affection and wrongly attribute such feelings to their abuser. They may develop an allegiance to their abuser as a consequence and not consider themselves to be the victim of any type of sexual abuse. They might initially refuse to identify as a 'victim' of abuse, believing that they were in a genuine, loving and non-abusive relationship.
- The victim may be reluctant to co-operate with those in authority or to participate in the criminal justice process. Inconsistent accounts are not uncommon in victims of child sexual abuse, especially during initial interviews, possibly because of an 'allegiance' to their abuser. The length of time between an alleged incident of sexual abuse and giving the account to the authorities is not a reliable indication of credibility.
- Children or young people who have been in the care of, or have come to the attention of, social services will inevitably have a great deal of information about them contained within social services records compared to other children or young people. Every episode of 'bad' behaviour, even of the most minor nature, is likely to be a matter of record. Most children misbehave; but not every child has their misbehaviour recorded. Victims who are, or have been, in the care of the social services should not be disadvantaged in the criminal process by this fact, and prosecutors should be prepared to address this issue as part of the presentation of the prosecution case.
- All of these factors must be taken into account and understood by prosecutors when reviewing allegations of child sexual abuse. Prosecutors must also have an understanding of the consequences faced by a child if they say 'no' to their abuser and this should form part of the prosecution strategy to address perceived weaknesses or anomalies in the victim's account.
- Prosecutors should also have regard to whether there is any credible third party evidence to suggest that the complainant has malicious intent to make a false allegation. However, prosecutors should guard against looking for 'corroboration' of the victim's account or using the lack of 'corroboration' as a reason not to proceed with a case.
- Prosecutors must check with the police and the CPS Case Management System (CMS) to see whether there are any pending allegations involving the same victim or suspect(s) or previous allegations which have been NFA'd. A note that this has been done should form part of the formal review even where the response is negative. If there are any such allegations or pending prosecutions then the details should be obtained to see if there are any links or similarities to the on-going case. Prosecutors should therefore consider whether they should be tried together and seek joinder. (See paragraph 73). Where appropriate the guidance on reconsidering a prosecution decision as part of the case building process should be addressed and CCP approval obtained as necessary. A full endorsement on CMS following the consideration of any subsequent material provided by the police is an essential part of the formal review.
- In 2012, the Office of the Children's Commissioner in England (OCCE) began an enquiry into child sexual exploitation in gangs and groups. The interim report of this enquiry (I thought I was the only one, the only one in the world) outlines a list of vulnerabilities which may be present in children prior to abuse and a further list of signs and behaviours generally seen in children who are already being sexually exploited. Prosecutors should consider whether the victim whose evidence they are considering demonstrates any of these factors. Whilst the absence of any of these characteristics does not mean that an allegation of exploitation is unlikely to be true, their presence may assist the prosecutor in forming an overall view in the case. The OCCE listed the following (pages 51-52 in the interim report, November 2012):
Typical vulnerabilities in children prior to abuse
- living in a chaotic or dysfunctional household (including parental substance use, domestic violence, parental mental health issues, parental criminality);
- history of abuse (including familial child sexual abuse, risk of forced marriage, risk of 'honour' based violence, physical and emotional abuse and neglect);
- recent bereavement or loss;
- gang association either through relatives, peers or intimate relationships (in cases of gang associated child sexual exploitation only);
- attending school with young people who are sexually exploited;
- learning disabilities;
- unsure about their sexual orientation or unable to disclose sexual orientation to their families;
- friends with young people who are sexually exploited;
- lacking friends from the same age group;
- living in a gang neighbourhood;
- living in residential care;
- living in hostel, bed and breakfast accommodation or a foyer;
- low self-esteem or self-confidence;
- young carer.
- missing from home or care;
- physical injuries;
- drug or alcohol misuse;
- involvement in offending;
- repeat sexually-transmitted infections, pregnancy and terminations;
- absent from school;
- change in physical appearance;
- evidence of sexual bullying and/or vulnerability through the internet and/or social networking sites;
- estranged from their family;
- receipt of gifts from unknown sources;
- recruiting others into exploitative situations;
- poor mental health;
- thoughts of or attempts at suicide.
- Some victims of child sexual abuse may have previous convictions which, on the face of it, may cast doubt upon their reliability as a witness of truth. Robust enquiries should be made of the police about the circumstances of the offending before coming to any conclusion about the truthfulness or otherwise of the witness testimony.
- Prosecutors are encouraged to look beyond the previous offending by the victim and consider the drivers and circumstances of the offending behaviour. Victims may sometimes commit what is called 'survival crime', i.e. committing crime to find safety or committing crime to ensure justice. An example of this is damaging property belonging to the offender or an associate. Offending might also be a reaction to the abuse which a child or young person is suffering, i.e. externally expressing their internal trauma. The victim may also have committed an offence whilst under the influence of the abuser and this may be used by the abuser as a means of controlling the victim and deterring them from making a complaint about the abuse they are experiencing.
- Full details of a victim's previous convictions will be required from the police including:
- type of offence;
- location of offence;
- who they were with, e.g. other young people or adults significantly older than them;
- what explanation they gave to the police at the time of arrest or in interview; and
- any other relevant circumstances.
- A child or young person may even have played a role in procuring others who are then abused. In past cases there is evidence that this may have been as a direct consequence of violence, threats or coercion or because they were in a vulnerable situation and put in considerable fear. In such circumstances, careful thought must be given as to the role, if any, that child or young person plays in any potential prosecution.
- It will be an essential part of the prosecution case to provide an explanation to the jury about the circumstances of any relevant offending by the witness, rather than it being put to the witness in the course of any cross examination.
- In child sexual abuse cases, the circumstances of the suspect need to be considered as intensely as the reliability of the complainant. Prosecutors should have regard to the following non-exhaustive list of evidential considerations:
- are there any relevant antecedents in respect of the suspect
- is there relevant police intelligence about the suspect in their local area or elsewhere;
- has the suspect been the recipient of a child abduction warning notice (formerly known as the 'harbourer's warning') in relation to the victim in this case or any other child and young person;
- is it likely that the suspect will have come into contact with the victim through the position or employment held by the suspect or the victim's lifestyle;
- has the suspect been the subject of any other allegations of sexual abuse whether these have resulted in a conviction or not. In many abuse cases, there is often more than one victim and inquiries should be made as to whether there are further victims;
- are there credible third party accounts supporting the allegations against the suspect or any other allegations made against the suspect;
- is there any credible evidence showing the suspect in contact with the victim (e.g. CCTV, texts, social media);
- does the suspect associate with others suspected of committing similar offences;
- does the suspect have indecent images of children (e.g. on personal computer, mobile phone etc).
- It is important that the prosecutor checks that the suspect's account has been investigated by the police in interview or through gathering further evidence. The questioning should ascertain whether the suspect deliberately targeted a victim's vulnerability and should disclose what their motivation was. If the suspect confirms that they know the victim, the prosecutor should ensure that the nature of the suspect's relationship with the victim is investigated by the police. This should include assessing whether the suspect is able to give a credible account of how and why they know the victim.
- An early account should be taken from the suspect and the possibility of having to wait a significant period of time for comprehensive expert medical statements should not prevent an arrest taking place and an early explanation from the suspect.
- In some cases, the first complaint may not be from the victim but from a concerned individual. The case may need to be built against the suspect before an account is obtained from the child or young person.
- Partner agencies (e.g. social services, voluntary sector and other local support services) and, if appropriate, parents or carers, should be encouraged to involve the police as early as possible to ensure that information critical to a prosecution case is not lost. It is vital that information is gathered and collated even in cases where the child or young person has not made a formal complaint. In many cases, the process of supporting a child or young person to recognise the exploitative nature of their relationship with the offender will be lengthy. By the time the child's account is given, crucial information could be lost or destroyed unless there is a strategy of evidence gathering from the outset.
- Other types of evidence that should be gathered to help build a case before the child or young person gives a statement include: obtaining DNA evidence, including from clothing seized; obtaining mobile phone evidence; CCTV footage; car number plate recognition; house searches; and early consideration of directed or intrusive surveillance. The possibility of information coming from house to house enquiries should not be overlooked. Neighbours may well not have seen anything first hand but they could be a useful source of other information about the wider context. Other useful information could be obtained from friends of the victims and their peer group especially about the wider context.
- In cases where the victim makes an initial allegation and then becomes uncooperative, a conventional investigation may be difficult. However, a review of the intelligence held by the police on any suspect(s) may be sufficient for a proactive operation to be commenced.
- Child sexual abuse can involve certain patterns of behaviour; a police officer may be presented with an apparently minor issue which in isolation may not cause concern but which is actually a pattern of abuse. It is also possible that concerns about individual children that on the face of it are unconnected are in reality part of a pattern of abuse by either the same offender or different but connected offenders. Concerns about one child or young person may also raise concerns about other children or young people with whom the suspect has contact. Identifying such patterns depends upon careful, accurate and co-ordinated record keeping by the police and other agencies and also upon prosecutors being alert to the issue and asking the right questions.
Joinder in CSA cases
- Joinder is now covered by CrimPR 10.2.(3) Under Rule 10 2.(3) An indictment may contain more than one count if all the offences charged are:
- Founded on the same facts
- Form part of a series of offences of the same or similar character
- What amounts to a series or part of a series of offences of the same of similar character? The principles now contained within the CrimPR 10.2(3) were considered in a number of authorities see Archbold 1-239.
- In Kray 53 Cr. App. R 569, CA it was held: (a) that two offences may constitute a "series" within the meaning of the rule, and (b) that although the relevant part of the rule does not require the offences to arise out of the same facts or be part of a system of conduct before joinder can be sanctioned, a sufficient nexus must nevertheless exist between the relevant offences; such a nexus is clearly established if evidence of one offence would be admissible on the trial of the other, but the rule is not confined to such cases; all that is necessary to satisfy the rule is that the offences should exhibit such similar features as to establish a prima facie case that they can properly and conveniently be tried together in the interests of justice, which include, in addition to the interests of the defendants, those of the Crown, witnesses and the public; a further relevant factor is the prejudice likely to arise in the second trial from extensive press reports of the first trial if the offences are tried separately. It was further held (at p. 575) that it is not desirable that the rule should be given an unduly restricted meaning, since any risk of injustice can be avoided by the exercise of the judge's discretion to sever the indictment.
- In summary
- For counts to be properly joined on an indictment there needs to be sufficient similarity or nexus between the offences for them to be regarded as a series.
- Two or more offences can amount to a series.
- Multiple complainants may amount to a series where there are similarities in the type of offending or the MO. Whether they do or not may depend on the context in which the offences are committed. In the absence of contamination and collaboration (i.e. the complaints are independent of each other) evidence adduced in respect of a particular count on the indictment may be admissible in support of all other counts on the indictment See R v Freeman and Crawford  EWCA Crim 1863.
- In R v Baird (1993) 97 Cr. App. R. 308 counts of assaults on two complainants committed 9 years apart were held to form part of a series.
- In R v Bennabbou  EWCA Crim 1256 the refusal to sever an indictment containing offences one year apart was upheld by the Court of Appeal.
- The greater the time gap the stronger the nexus required to establish a series.
- In the case of R v T  EWCA Crim 183 it was held that there was not a sufficient nexus between a charge of Perverting the Course of Justice based on allegations of rape in 2005 which had not been charged and a rape allegation which occurred several months later.
- In R v F  1 W.L.R 3133 the prosecution was permitted to amend the indictment at retrial following a successful appeal to include offences relating to a third victim. Further evidence had come to light and the requirement of CPR 2011 r.14 .2(3) were met - that the alleged offences were of the same or similar character. The application for joinder was deemed reasonable and proper.
Indecent images linked to child sex abuse
- If considering a child abuse case and other matters involving indecent images the following case confirms that evidence in relation to indecent images is potentially admissible in a child sex abuse case and so could support an application for joinder.
- See R v D, P and U  EWCA Crim 1474 where the possession/making of Indecent images of children was admissible as bad character under gateway (d) in a child sex abuse trial.
Youth produced sexual imagery - 'Sexting'
- Where images may have been taken when the victim was under 18, prosecutors should consider whether any offences under section 1 of the Protection of Children Act 1978 (taking, distributing, possessing or publishing indecent photographs of a child) or under section 160 of the Criminal Justice Act 1988 (possession of an indecent photograph of a child) have been committed. Further information is available in the legal guidance on Indecent Images of Children.
- However, care should be taken when considering any cases of 'sexting' that involve images taken of persons under 18. Please note that section 15A of the Sexual Offences Act 2003 only applies to a person aged 18 or over. Sexting commonly refers to the sharing of illicit images, videos or other content between two or more persons. Sexting can cover a broad range of activities, from the consensual sharing of an image between two children of a similar age in a relationship to instances of children being exploited, groomed, and bullied into sharing images, which in turn may be shared with peers or adults without their consent.
- Whilst it would not usually be in the public interest to prosecute the consensual sharing of an image between two children of a similar age in a relationship, a prosecution may be appropriate in other scenarios. In addition to the offences outlined above, consideration may be given to the offence of Causing or inciting a child to engage in sexual activity under section 8 (child under 13) or section 10 (child) of the Sexual Offences Act 2003 (SOA).
- The College of Policing issued a briefing note in November 2016 entitled Police action in response to youth produced sexual imagery (Sexting).
Sexual communication with a child
- On 3 April 2017, section 15A of the Sexual Offences Act 2003 came into force (inserted by the Serious Crime Act 2015, section 67).
- This section fills a previous gap in the law. It means that a person can be charged when their contact with the child may be regarded as being in the initial stages of grooming but has not gone as far as inciting sexual activity. Previously, these communications whilst deeply inappropriate could not result in criminal charges until the communication had developed further. This unsatisfactory situation has now been resolved.
- This makes it an offence for:
- a person aged 18 or over
- for the purpose of obtaining sexual gratification
- to communicate with a child under 16
- for that communication to be sexual
- or for that communication to be intended to encourage the child to make a sexual communication
- and that the person does not reasonably believe that B is aged 16 or over
- Sexual communication and sexual activity are defined by section 15A (2).
- The encouragement of a child to make a sexual communication can be to the person encouraging the communication or to any other person.
- The communication could be in the form of an e-mail, text message, written note or orally. Scenarios likely to be covered by the offence would include talking sexually to a child via a "chat room" or sending sexually explicit text messages to a child as well as inviting a child to communicate sexually (irrespective of whether the invitation is itself sexual). The new offence is designed to ensure that it does not criminalise, for example, ordinary social or educational interactions between children and adults or communications between young people themselves.
- The new offence is triable either way with a maximum penalty (on conviction on indictment) of two years' imprisonment.
- The section does not have retrospective effect.
- People who abuse are not bound by geographic boundaries. Offenders may move victims from one place to another to be sexually exploited. The young victim may not know where they are when the abuse takes place. They may agree to travel between different locations and there may not be any coercion for them to do so.
- Moving children and young people around may be part of a deliberate strategy by offenders to prevent any single police force from obtaining a complete picture of the offending behaviour. The fact that a child or a young person is taken to an unfamiliar location can also make it harder for them to identify the time, date and location of the abuse.
- Young people under 18 cannot consent to being moved for the commission of a relevant offence under the Sexual Offences Act 2003. The fact of the movement and the intent are sufficient for the offence to be proved. In these circumstances, as well as relevant 'contact offences', prosecutors should consider charges under section 58 of the Sexual Offences Act 2003. Fuller guidance on human trafficking and the associated set of issues is set out in the Legal Guidance on Human Trafficking and Smuggling.
- For the reasons outlined above, the ABE interview process may be lengthy and the account by the victim may be given over a number of interviews, with the fullest account not being given until the final interview. The ABE interview is primarily an investigative tool but is also required for evidential purposes, but sometimes this dual purpose can cause presentational difficulties at court. Prosecutors should be familiar with police ABE procedures and mindful of the need for a clear and focused ABE interview to be presented at the trial. This will often mean that careful editing is required, and this should be done by the police and prosecutor as soon as is reasonably practical. (An unedited version of the videoed interview is disclosed to the defence unless Public Interest Immunity considerations apply).
- It is very important that prosecutors use their best endeavours to ensure that 'myths and stereotypes' about child sexual abuse are challenged in court. For example, by ensuring that they are addressed in Counsel's opening speech to the jury, by challenging Defence Counsel, by adducing expert evidence where appropriate, or by asking the judge to give specific directions to the jury.
- The Crown Court Bench Book sets out specimen directions for use by judges in the Crown Court. Chapter 17 The Trial of Sexual Offences addresses myths, stereotypes and generalisations that may influence jury members in their deliberations. Trial advocates should take the lead in suggesting to the judge appropriate directions from the Bench Book for inclusion in his or her summing up.
- At Annex C, a number of common myths and stereotypes surrounding this type of offending have been set out including the basis for rebutting them.
- Following service of initial disclosure by the prosecution, the time limit for service of a defence statement and service of the details of any defence witnesses is 14 days in the magistrates' court and 28 days in the Crown Court, unless that period has been extended by the court.
- The defence statement gives a valuable opportunity for the prosecution to confirm or rebut defence allegations and it is likely to point the prosecution to other lines of inquiry, for example, the investigation of an alibi, or where forensic expert evidence is involved.
- Where there is no defence statement, or it is considered inadequate, the prosecutor should contact the defence indicating that further disclosure will not take place or will be limited (as appropriate) and inviting them to specify or clarify the defence case. Where the defence fails to respond, or refuses to clarify the defence case, the prosecutor should consider raising the issue at a pre-trial hearing to invite the court to give a statutory warning under section 6E(2) of the Criminal Procedure and Investigation Act 1996.
- There is separate CPS Legal Guidance on Special Measures which sets out the full range of measures that can be applied for to the court. By virtue of their age, children are automatically eligible for special measures, although the measures will not automatically be available at trial. An application for special measures needs to be made by the party calling the witness. The decision as to whether the special measure applied for is granted is a matter for the court.
- Prosecutors should discuss with the police, and consider carefully, which, if any, of the special measures should be used. The views of the victim (and where appropriate, their parents/guardian) should be taken into account as well as the type of offending alleged. Prosecutors should actively raise the issue of special measures with the police if there is not a note of a discussion with the victim (and where appropriate, their parents/guardian) and also ensure that the measures requested are kept under close review as the date of the trial approaches.
- We have referred to Registered Intermediaries in paragraph 37 above in respect of being involved at the interview stage with the victim. Intermediaries should be considered in all cases of child sexual abuse, not just those involving very young witnesses, and if not involved earlier in the case, they should still be actively considered in advance of the trial as a means of supporting the victim giving evidence in court. Children and young people do not approach communication in the same way as adults and ability across all age ranges can vary considerably.
- Registered Intermediaries can be crucial in enabling witnesses to give their best evidence both at statement taking/interview stage and during the court process. If an Intermediary has not been used at the interview stage but communication needs are identified at the review stage this does not mean that they cannot be instructed for the court process. However, it is preferable for the need for a Registered Intermediary to be identified early in the process so that there is sufficient time for rapport building to take place.
"The use of intermediaries has introduced fresh insights into the criminal justice process. There was some opposition. It was said, for example, that intermediaries would interfere with the process of cross examination. Others suggested that they were expert witnesses or supporters of the witness. They are not. They are independent and neutral. They are properly registered. Their responsibility is to the court ... their use is a step which improved the administration of justice and it has done so without a diminution in the entitlement of the defendant to a fair trial."
The Rt. Hon. The Lord Judge, Lord Chief Justice of England and Wales, 7 September 2012, speaking at the 17th Australian Institute of Judicial Administration Conference on 'Vulnerable Witnesses in the Administration of Criminal Justice'.
- Registered Intermediaries fulfil a different role and purpose to that of a witness 'supporter' and the two roles should not be conflated.
- Further, more detailed, information can be found in the CPS Special Measures: Intermediaries (including their engagement) Legal Guidance.
- Comprehensive advice can be found on all aspects of case management and preparation for vulnerable victims and witnesses in the Advocates' Gateway and prosecutors should read and be familiar with its content, along with the Judicial College Bench Checklist for Young Witness Cases.
- Prosecutors should assist the courts to ensure that effective timetabling and case progression of child sexual abuse cases takes place. Cases involving children or young people should be heard as soon as possible, with delay for child victims kept to 'an irreducible minimum' (Part 3D General Matters of the Criminal Practice Directions 2013). Young witnesses should not be kept waiting at court and should know that the time given to attend court is when they give evidence so that they are not kept waiting around.
- Trial dates should not be vacated unless this is absolutely unavoidable. This includes avoiding any last minute changes in Prosecution Counsel because of the disruption it can cause to victims and witnesses. If a change of Counsel does happen, it should only take place where it is unavoidable (for example, illness).
- Ground rules hearings about cross examination in court are recommended in any young witness trial but required in any intermediary cases. This includes the defence agreeing who will be the lead counsel to put questions to the victim in cases with more than one defendant and the length of time given to the cross examination. The ground rules hearings should take place in advance of the day of the trial so that everyone, particularly the victim, is aware of what to expect and how long the proceedings in court should take. Prosecutors are reminded of rule 3.10 of the Criminal Procedure Rules that states:
Conduct of a trial
3.10 - In order to manage a trial or appeal the court -
- must establish, with active assistance of the parties, what are the disputed issues
- must consider setting a timetable that -
- takes account of those issues, and of any timetable proposed by a party, and
- may limit the duration of any stage of the hearing
- may require a party to identify -
- which witness that party wants to give evidence in person
- the order in which that party wants those witnesses to give their evidence
- whether the party requires an order compelling the attendance of a witness
- what arrangements are desirable to facilitate the giving of evidence by a witness
- what arrangements are desirable to facilitate the participation of any other person including the defendant
- what written evidence that parties intend to introduce
- what other material, if any, that person intends to make available to the court in the presentation of the case, and
- whether the party intends to raise any point of law that could effect the conduct of the trial or appeal; and
- may limit -
- the examination, cross-examination or re-examination of a witness, and
- the duration of any stage of the hearing.
Prosecutors should also assist the court in dealing with questioning of the victim or witness.
- The Court of Appeal has addressed restrictions on cross examination:
- where there is a risk of a child acquiescing to leading questions (R v B  EWCA Crim 4 ); and
- on 'putting your case' to a child (R v Wills  EWCA Crim 1938 and R v E  EWCA Crim 2028).
As the Court of Appeal observed in Wills:
"Some of the most effective cross-examination is conducted without long and complicated questions being posed in a leading or 'tagged' manner."
- Where limits are 'necessary and appropriate', the Court of Appeal in Wills stated that:
- limitations on questioning must be clearly defined;
- the judge has a duty to ensure that limitations are complied with;
- the judge should explain limitations to the jury and reasons for them;
- if the advocate fails to comply with limitations, the judge should give relevant directions to the jury when that occurs; and
- instead of commenting on inconsistencies during cross-examination, the advocate/judge may point out important inconsistencies after (instead of during) the witness's evidence, following discussion with the advocates. The judge should be alert to alleged inconsistencies that are not in fact inconsistent, or are trivial.
- As set out above, in multiple defendant cases the judge should be asked to consider whether repeat cross examination on similar points should be restricted. Being accused of lying, particularly if repeated, may cause the witness to give inaccurate answers or to agree simply to bring questioning to an end. It may also have a longer term damaging impact on the child or young person. If such a challenge is essential, it should be addressed separately, in simple language, at the end of cross examination.
- Some victims of sexual abuse may not feel confident or strong enough to report until many years after the abuse has taken place, and often not until they are adults. This delay in reporting can be for a wide range of reasons, but many of the same considerations for child victims will also apply to adults who were victims of sexual abuse in their childhood, particularly around assessing the credibility of the overall allegation and the need for effective and proactive case-building.
- Prosecutors should be mindful of the potential for severe re-traumatisation faced by some victims. The process of giving an account of the abuse may cause flashbacks where an adult finds themself in the same emotional state as when the sexual abuse took place and with the resilience and understanding of a child of that age. Consistent and effective support should be provided including keeping under constant review whether there is a need for counselling and special measures.
- It is recognised that some adult victims of childhood sexual abuse may suffer severe mental health problems as a result of their experience and may never be able to give evidence in court. However, it should not be overlooked that they may have important information which might be of assistance in supporting the account given by other victim(s) against the same offender(s).
Witnesses who withdraw support for the prosecution or indicate that they are no longer willing to give evidence
- Chapter 5 of the CPS Rape and Sexual Offences Legal Guidance deals with this issue in detail. In child sexual abuse cases, prosecutors must ensure that the reason for a victim's ostensible retraction is thoroughly investigated by the police before a decision about how to proceed is made. Prosecutors must be sure that the victim (and where appropriate, their parents/guardian) has had special measures and reporting restrictions (see the CPS Legal Guidance Contempt of Court and Reporting Restrictions) explained to them thoroughly and in an age-appropriate way (or developmentally appropriate), as this may influence their decision to continue with the process.
- Particular regard should be had to the highly organised nature of some offenders who will go to great lengths to ensure that if witness intimidation takes place it is several steps removed from them.
- Cases which involve criminal proceedings and family proceedings, together with their respective investigations, taking place either simultaneously or with some degree of overlap, can present challenges for the different agencies concerned. See Annex D for further information.
- Proceedings in the Family Courts begin when a statutory body, usually the Local Authority, initiate care proceedings in relation to one or more children within a family unit. Such an application is usually based on the belief that the child or children have or are likely to suffer significant harm as a result of child abuse in one or more of the following: physical abuse; sexual abuse; emotional abuse; or neglect.
- In any of the above circumstances, a child or children can be removed from the family under emergency powers conferred by either section 44 or 46 of the Children Act 1989.
- In cases relating to the use of section 44 and 46, it is then the responsibility of the Local Authority under section 47 of the Children Act to make, or cause to be made, such enquiries as they consider necessary to enable them to decide what action they should take to safeguard or promote the child's welfare. This action is commonly known as a 'section 47 investigation' and in the majority of cases, will take the form of a joint enquiry conducted by both police and social workers from the Local Authority Children's Services, with police concentrating on the criminal aspect of the enquiry.
- If a child is removed into police protection under section 46, then a maximum period of 72 hours is permitted before they must be returned to the family or an application is made to the Family Court for an 'emergency protection order' (EPO) under section 44 in order that further enquiries can be carried out as above. The EPO has effect for a period not exceeding 8 days, including any time already spent under police protection; although it can be extended once for a maximum of 7 days.
- On expiration of this period, an application can be made to the Family Court for a care order under section 31. Once care proceedings are issued, a first hearing will take place within three days at which the court may make an interim care order. It is then the responsibility of the court to draw up a timetable with a view to disposing of the application for a care order without delay.
- When family proceedings are instituted to decide on the most appropriate care plan for any child or children subject to the proceedings, a number of preliminary hearings take place, followed in the latter stages by a fact finding hearing and a final determination hearing. It is likely that each 'party' to the proceedings will be represented.
- Parties to family proceedings are those who have an immediate claim to the care of the child, usually each parent and the Local Authority who have placed the child in care. A children's guardian, appointed by the court to represent a child's best interests, is also a party to the proceedings. Others can, on application to the court, become parties to the proceedings, or an 'intervener', such as potential carers or grandparents. However it is important to note that alleged perpetrators of sexual abuse are sometimes joined as parties or interveners and that where findings are sought in family proceedings against an alleged perpetrator that person is invited routinely by the family court to be so joined. They can be non-family members but are commonly also family members or partners of family members.
- The focus in the Family Courts is on establishing the facts and achieving the most appropriate outcome for the child, not on the prosecution of the alleged abuser.
- Therefore, despite the fact that police might be conducting a parallel criminal investigation into the actions of one or more of the parties against a child (or a sibling) who is the subject of the family proceedings, neither the police nor the CPS are parties to the family proceedings.
- It would neither be appropriate nor desirable for the police or CPS to be present throughout family proceedings. Many aspects of the hearings would be irrelevant to the criminal investigation and contempt issues may arise if the police or CPS make use in the criminal proceedings of material arising in the Family Court proceedings without the permission of the Family Court.
- If an alleged abuser were to incriminate himself/herself during the course of the family proceedings they would have the benefit of protection from prosecution by virtue of section 98(2) of the Children Act 1989, whereby a statement or admission made in such proceedings is not admissible against the person making it or his spouse in criminal proceedings (other than for an offence of perjury).
- Prosecutors should note that the protection in section 98(2) does not extend to the criminal investigation. The police may put relevant statements and admissions to a suspect in interview. If adopted by the suspect, the statements/admissions are admissible in criminal proceedings (subject to the usual provisions of sections 76 and 78 of the Police and Criminal Evidence Act 1984). Similarly, putting inconsistent statements made in Family Court proceedings to a defendant in cross examination in the criminal case should not be contrary to section 98 of the Children Act 1989.
- Chapter 4 of the Disclosure Manual sets out the procedure to be adopted with reference to third party material. It is highly likely that many child sexual abuse cases will involve and require access to third party material when building the evidential case.
- The following are examples of third party material which may be relevant: medical notes; social services/Children's Services material; education notes; counselling/therapy notes; information or evidence arising in parallel family/civil proceedings; or information kept by voluntary sector organisations.
- 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, the Local Authority.
- If the third party declines or refuses to allow access to it, the matter should not be left. If, despite any reasons put forward by the third party, it is reasonable to seek production of the material or information and the requirements of section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 are satisfied, then prosecutors should apply for a witness summons requiring a representative of the third party to produce the material to the court.
- Third party material should be sought at an early stage, preferably pre charge, and sufficient time should be set aside to receive and process third party material, especially in particularly large or complex cases. The material may contain information that could enhance and strengthen the prosecution case.
- Prosecutors and investigators should handle requests for Local Authority material in accordance with any applicable local or national protocol. The protocol will ensure that the Local Authority makes disclosure to the police and CPS to the full extent permitted by law (taking into account the common law of confidentiality, the Data Protection Act 1998 and the Family Procedure Rules 2010, see Annex E). The Local Authority will make all relevant material available to the police at the earliest opportunity, or provide reasons why certain material (listed but not described) is not being made available, for example because it is related to Family Court proceedings. The 2013 Protocol and Good Practice Model: Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings is available here.
- The police will take copies of all relevant Local Authority material which will then be scheduled for the CPS on the schedule of sensitive unused material. Where any of the material meets the Criminal Procedure and Investigations Act test for disclosure to the defence, the prosecutor should consult with the Local Authority before disclosure is made. There may be public interest reasons which justify withholding disclosure to the defence and which would require the issue of disclosure of the information to be placed before the court. However, following the decision of the House of Lords in R v H & C  2 AC 134, applications for public interest immunity will be rare. Prosecutors should make disclosure in summarised or redacted form where this is possible.
- Relevant material might include statements and admissions made in the Family Court proceedings by defendants and witnesses in the criminal case, or might include expert testimony in the Family Court proceedings. There are a number of ways in which prosecutors will become aware of the existence of relevant material relating to Family Court proceedings.
- The police may have obtained the material from the Local Authority (or elsewhere) in line with their duties of child protection. Note that, in these circumstances, the police cannot share the material with the CPS (nor can they share with the CPS the information on which documentation is based) without the permission of the Family Court. The police have to simply alert the CPS to the fact that relevant Family Court material exists.
- In accordance with the terms of a local or national protocol, the Local Authority may have alerted the CPS to the existence of relevant material relating to Family Court proceedings.
- Prosecutors and investigators will determine whether to apply to the Family Court for permission to access such relevant material. Protocols may provide a streamlined process for making the application to the court; and may provide for the Local Authority to make the application on behalf of the police and CPS; or for the Family Court to make an order for disclosure without the need for an application. Any application to the Family Court should make it clear that the material might need to be shared with the defence and (subject to section 98 of the Children Act 1989) used in evidence.
- The Family Procedure Rules 2010 provide that the text of summary of a judgment in Family Court proceedings can be disclosed to the police and CPS without the permission of the court. The Local Authority (or others) can disclose to the police and CPS documents which are lodged at the Family Court, or used in the proceedings which already existed.
- A local or national protocol may provide for linked directions hearings at which directions in concurrent criminal and Family Court proceedings can be made jointly by the same judge. Directions will include disclosure of material between the two jurisdictions, timetabling of the respective proceedings and the coordination of the use of expert witnesses.
- Working Together to Safeguard Children - A guide to inter-agency working to safeguard and promote the welfare of children (2013) provides guidance about sharing information about children in England (and there is separate similar guidance applicable in Wales). In deciding whether there is a need to share information, professionals need to consider their legal obligations, including whether they have a duty of confidentiality. Where there is such a duty, the professional may lawfully share information if consent is obtained or if there is a public interest of sufficient weight. Where there is a clear risk of significant harm to a child, the public interest test will almost certainly be satisfied. Lack of consent to share information is irrelevant where there is a clear concern about a risk of harm to the child or young person.
- Prosecutors must be proactive in highlighting to police officers information which is of concern to them. If it is not possible to prosecute a case, but information available causes concern to the prosecutor, they should ensure that this is brought to the attention of the relevant investigating police officers, so that they can in turn share this with the relevant agencies including Local Authorities.
- Prosecutors who receive relevant cases from the police should check with the police that they have complied with their statutory duties to share information with Local Authorities and any other relevant bodies. CPS case files should not be closed until this confirmation is received.
- In addition to applying the above information sharing principles, prosecutors and investigators will need to ensure that disclosure does not prejudice the criminal investigation and prosecution. Material disclosed to the Local Authority will be shared with all parties to the Family Court proceedings and the parties are likely to include the defendant(s) and witnesses in the criminal case. The Local Authority may be able to secure a Family Court order prohibiting onward disclosure to named individuals, i.e. defendants and witnesses in the criminal case. Alternatively, it may be possible to delay disclosure of prosecution material to the Local Authority until a later date (although, other than in exceptional circumstances, the existence of criminal proceedings is not reason to adjourn Family Court proceedings). Prosecutors should consult with the police where the request for disclosure of prosecution material is made to the police.
National Child Sexual Abuse lead
The National Child Sexual Abuse (CSA) lead will:
- oversee the national CSA Network drawing on their expertise in high profile CSA casework;
- encourage good practice and offer best practice guidance in CSA cases via the CSA Network;
- develop close relations with partner agencies, in particular with NPCC;
- liaise and work closely with CPS Headquarters to develop and disseminate good practice and identify aspects for improvement and issues for concern; and
- attend and play a leading part in the CSA review panel.
Area Child Sexual Abuse lead
The Area CSA lead will:
- meet the criteria set out in the standard for rape specialist prosecutors;
- act as an Area source of expertise, guidance and good practice for colleagues both locally and nationally dealing with child sexual abuse cases;
- be an initial single point of contact for police forces and other relevant agencies in their Area providing general advice and guidance in CSA cases;
- establish liaison with police CSA lead officers in order to review and develop local investigative practice;
- attend local partnership CSA strategic meetings to develop criminal justice improvements for victims and witnesses;
- maintain a CSA caseload;
- liaise and work closely with CPS Headquarters to develop and disseminate good practice and identify aspects for improvement and issues for concern;
- produce brief six monthly reports for the Director as part of the bi-annual VAWG Assurance collated through VAWG Coordinators;
- ensure that an Area overview of CSA investigations and prosecutions is maintained to include information about ethnicity, age, gender and offences where practicable;
- work closely with, and assist in training, the police and relevant voluntary sector agencies in relation to general good practice and procedure in relation to CSA cases;
- be a member of the national CPS CSA network, attending training events and seminars as required and maintaining regular dialogue with other CSA leads; and
- attend the CSA review panel when invited.
Child / Children / Young Person
Anyone who has not yet reached their 18th birthday. The fact that a child has reached 16 years of age, is living independently or is in further education, is a member of the armed forces, is in hospital or in custody in the secure estate, does not change his/her status or entitlement to services or protection.
A form of maltreatment of a child. Somebody may abuse or neglect a child by inflicting harm, or by failing 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 others (e.g. via the internet). They may be abused by an adult or adults, or another child or children.
Child sexual abuse
Involves forcing or enticing a child or young person to take part in sexual activities, not necessarily involving a high level of violence, whether or not the child is aware of what is happening. The activities may involve physical contact, including assault by penetration (for example, rape or oral sex) or non-penetrative acts such as masturbation, kissing, rubbing and touching outside of clothing. They may also include non-contact activities, such as involving children in looking at, or in the production of, sexual images, watching sexual activities, encouraging children to behave in sexually inappropriate ways, or grooming a child in preparation for abuse (including via the internet). Sexual abuse is not solely perpetrated by adult males. Women can also commit acts of sexual abuse, as can other children.
Child sexual exploitation
There is no specific offence of child sexual exploitation (CSE); it is defined in government guidance and policy in this way:
'The sexual exploitation of children and young people under 18 involves exploitative situations, contexts and friendships where young people (or a third person or persons) receive 'something' (e.g. food, accommodation, drugs, alcohol, cigarettes, affection, gifts, money) as a result of performing, and/or others performing on them, sexual activities.
'Child sexual exploitation can occur through the use of technology without the child's immediate recognition, for example the persuasion to post sexual images on the internet/mobile phones with no immediate payment or gain. In all cases those exploiting the child/young person have power over them by virtue of their age, gender, intellect, physical strength and/or economic or other resources.
'Violence, coercion and intimidation are common, involvement in exploitative relationships being characterised in the main by the child or young person's limited availability of choice resulting from their social/economic and/or emotional vulnerability.'
CSE can involve a broad range of exploitative activity, from seemingly 'consensual' relationships and informal exchanges of sex for attention, accommodation, gifts or cigarettes, through to very serious organised crime. Young people do not always receive something tangible in return for sexual activities; the promise of something or apparent love and affection may be all that they receive.
The police should know the nature, extent and type of offending they are investigating and will be expected to indicate whether they consider a case involves CSE. However, prosecutors also have a duty to identify potential CSE cases even if the police have omitted to do so. For example, often a case starts with one suspect and one victim in one location but if properly investigated may grow to meet the CSE criteria.
'Grooming' is not a specific form of child sexual exploitation but should be seen as a way in which perpetrators target children and manipulate their environments. It is an approach to exploitation and may be the beginning of a complex process adopted by abusers. Grooming can be defined as developing the trust of a young person or his or her family in order to engage in illegal sexual activity or for others to engage in illegal sexual activity with that child or young person.
Myths and Stereotypes
It is very important that prosecutors use their best endeavours to ensure that 'myths and stereotypes' about child sexual abuse are challenged in court. If they are left unchallenged, it may lead to members of the jury approaching the victim's evidence with unwarranted scepticism.
This Annex lists some of the more common myths and stereotypes and the basis for why they should be challenged. It should be stressed that the list below is non-exhaustive.
(a) The victim invited sex by the way they dressed or acted
This is an attempt to excuse the rape or sexual assault and blame the victim. It assumes that a child or young person who attracts attention by their dress or manner is looking for sex and excuses the behaviour of the abuser. A child or young person under 16 can never consent to sex whatever the circumstances.
(b) The victim drank alcohol or used drugs and she was therefore available sexually
This is an attempt to excuse the abuser of rape or sexual assault and blame the victim. It assumes that as the child or young person was drunk or under the influence of drugs they were willing sexual partners. An adult is unable to consent to sex if they are drunk, drugged or unconscious, and a child or young person under 16 can never consent to sex whatever the circumstances.
(c) The victim didn't scream, fight or protest and so it can't be sexual assault
It implies the victim is not telling the truth and invalidates the experience of the victim. Also, a child may experience a 'freeze' response to trauma meaning they become incapable of responding in an active way. It does not take account of how the victim's behaviour may have been influenced by threats whether real or perceived, or how manipulative techniques might have been used by the abuser to intimidate or control the victim. A child or young person under 16 can never consent to sex whatever the circumstances.
(d) If the victim didn't complain immediately it wasn't sexual assault
It implies the victim is not telling the truth and invalidates the experience of the victim. It does not take account of how the victim's behaviour may have been influenced by threats whether real or perceived, or how manipulative techniques might have been used by the abuser to intimidate or control the victim. A child or young person under 16 can never consent to sex whatever the circumstances.
In addition, the trauma can cause feelings of shame and guilt which might inhibit a victim from making a complaint. This was recognised by the Court of Appeal in R v D (JA)  EWCA Crim 2557, where it was held that judges are entitled to direct juries that due to shame and shock, victims of rape might not complain for some time, and that "a late complaint does not necessarily mean it is a false complaint".
(e) A victim in a relationship with the alleged offender is a willing sexual partner
A child or young person under 16 can never consent to sex whatever the circumstances. It invalidates the experience of the victim and it does not take account of how the victim's relationship may have been influenced by threats whether real or perceived, or how manipulative techniques might have been used by the abuser to intimidate or control the victim. The grooming process can actively distort understanding of consent and is often used for that purpose. Feelings of powerlessness and fatalism are common amongst victims.
(f) A victim who has been sexually assaulted will remember events consistently
It implies the victim is not telling the truth and invalidates the experience of the victim. It also fails to take account of how children and young people do not have the same standards of logic, understanding and consistency as adults do. They will not have the same experience of life as adults and are less sophisticated in their understanding of what has happened. A child may not fully understand the significance of activity which is sexual and this may be reflected in how they remember or describe it. A child is very likely to have a different perception of time to that of an adult. Also the process by which memories are laid down during a traumatic event may impact on issues such as consistency. A child's memory can fade and their recall of when and in what order events took place may not be accurate. A child may not be able to speak of the context in which the events took place, and this may include having particular difficulty with conceptual questions as to how they felt some time ago, or why they did or did not take a particular course of action.
(g) Parents should know what is happening to the victim and be able to stop it
This is an attempt to excuse the abuser of rape or sexual assault and place the blame on the victim's parents. Parents may be unable to identify what is happening. Even if they suspect that something is not right, they may not be in a position to stop it due to the control over the victim exercised by the abuser. There can also be risks to parents when seeking to protect their child and they can need support as well as the child.
(h) Children and young people can consent to their own sexual exploitation
This is an attempt to excuse the abuser of rape or sexual assault and blame the victim. A child or young person under 16 can never consent to sex whatever the circumstances. A child or young person under 18 cannot consent to being trafficked for purposes of their own exploitation. Regardless of age, a person is unable to consent to sex if they are drunk, drugged or unconscious.
(i) Sexual exploitation only happens in large towns and cities
Sexual exploitation is a form of child sexual abuse and can happen anywhere and it is not confined to particular towns or cities. Children and young people can be trafficked between different areas of the country for the purpose of exploitation.
(j) It only happens to teenage girls by adult men
Sexual abuse and exploitation is not limited to teenage girls by adult men. The victims may be either boys or girls and victims are not limited to any particular age and can include very young children. The abusers can include peers the same age of the victim, and sometimes peers, even if not directly perpetrating rape or sexual assault, can be used to 'recruit' other children and young people to take them to locations where they are introduced to adult abusers.
(k) The victim is usually living in a care home away from their family
There are different types of child sexual abuse and exploitation and victims come from all parts of society. The victim could be living in a care home, but often the victim is living at home with their parents and family. Many children are living at home when their abuse begins. Children who grow up in loving and secure homes may also be vulnerable to child sexual exploitation if they live in a gang-affected neighbourhood, have a friend who is being sexually exploited, or go to a school where other children have been sexually exploited.
(l) Sexual exploitation is only perpetrated by certain ethnic/cultural communities
Perpetrators of sexual exploitation come from a range of different backgrounds and it is not restricted to one ethnic or cultural community. There is more than one type of perpetrator, model and approach to child sexual exploitation by gangs and groups. It invalidates the experience of victims abused by perpetrators from other backgrounds and risks such abuse being overlooked. What all perpetrators have in common, regardless of the differences in age, ethnicity, or social background, is their abuse of power in relation to their victims.
(m) It only happens to girls and young women
Boys and young men are also at risk of sexual abuse and exploitation. It implies the boy or young man is not telling the truth and invalidates the experience of the victim. A child or young person under 16 can never consent to sex whatever the circumstances.
(n) Sexual abuse and exploitation does not happen to children and young people from Black and Minority Ethnic (BME) backgrounds
Victims of child sexual abuse and exploitation come from a range of ethnic backgrounds and are not restricted to just one ethnicity. What is common to all victims is their powerlessness and vulnerability, not their age, ethnicity, disability or sexual orientation. It implies that children and young people from BME backgrounds are not telling the truth and invalidates their experience. It also risks such abuse being overlooked.
(o) Children who are being abused will show physical evidence of abuse
Research shows that genital injuries are the exception even in cases where the abuse has been proven. Even where an injury is sustained it may heal very quickly.
Child Protection systems in England and Wales
Child Protection in England is the overall responsibility of the Department for Education which issues guidance to local authorities. The most recent guidance, issued in March 2013, is Working Together to Safeguard Children. Local Safeguarding Children's Boards (LSCBs) use this guidance to produce their own procedures that should be followed by practitioners and professionals who come into contact with children and their families in their local authority area. Wales has the All Wales Child Protection Procedures which provides Local Safeguarding Children Boards with a single set of procedures and a range of protocols from which they all work.
In many cases of child sexual abuse, there will be social services involvement, often prior to any police involvement. In brief this will involve one, or all, of the following steps:
- A referral to local authority children's social care, which can come from the child themselves, teachers, a GP, the police, health visitors, family members and members of the public.
- An assessment taking place to establish whether the child requires immediate protection and urgent action is required; or, the child is in need and should be assessed under section 17 of the Children Act 1989; or, there is reasonable cause to suspect that the child is suffering, or likely to suffer, significant harm, and whether enquiries must be made and the child assessed under section 47 of the Children Act.
- If there is a risk to the life of a child or a likelihood of serious immediate harm, local authority social workers, the police or NSPCC must use their statutory child protection powers to act immediately to secure the safety of the child. If the child is identified as being in need, a social worker should lead a multi-agency assessment under section 17. Where information gathered during an assessment results in the social worker suspecting that the child is suffering or likely to suffer significant harm, the local authority should hold a strategy discussion to enable it to decide, with other agencies, whether to initiate enquiries under section 47.
For the purposes of the multi-agency assessments, the police should assist other agencies to carry out their responsibilities where there are concerns about the child's welfare, whether or not a crime has been committed. If a crime has been committed, the police should be informed by the local authority children's social care.
For the purposes of the strategy discussion, the police must discuss the basis for any criminal investigation and any relevant processes that other agencies might need to know about, including the timing and methods of evidence gathering; and lead the criminal investigation where joint enquiries take place. The local authority children's social care has the lead for the section 47 enquiries and assessment of the child's welfare.
Social services involvement will potentially generate a great deal of information which police and prosecutors should make enquiries about. The enquiry should not be from the standpoint of looking for material to undermine the child or young person. There may be material which could enhance and strengthen the prosecution case.
All prosecutors who review child sexual abuse cases should have a good working knowledge of the legislative requirements and expectations on individual services to safeguard and promote the welfare of children. Prosecutors should also be aware of the 2013 Protocol and Good Practice Model: Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings.
Family Procedure Rules Part 12
Practice Direction 12A is a key piece of guidance for prosecutors. It sets out the Public Law Proceedings Guide to Case Management: April 2010, incorporating the Public Law Outline 2010 (PLO). Where there are parallel criminal and care proceedings, it is vital that prosecutors understand the timetables and processes of the Family Court.
The Practice Direction sets out the stages (Issue and First Appointment; Advocates' Meeting and Case Management Conference; Advocates' Meeting and Issues Resolution Meeting; Final Hearing) and the timescales involved. The PLO forms to be used include information of relevance to prosecutors, such as the Local Authority Case Summary, Draft Case Management Order, Timetable for the Child/Children, Standard Directions, disclosure etc.
Practice Direction 12A states at paragraph 3.9: 'Where there are parallel care proceedings and criminal proceedings against a person connected with the child for a serious offence against the child, linked directions hearings should where practicable take place as the case progresses. The timing of the proceedings in a linked care and criminal case should appear in the Timetable for the Child.'
PLO Form 4 makes specific reference to parallel criminal proceedings.
The Timetable for the Child
The Timetable for the Child includes not only legal steps but also social care, health and education steps. Due regard is paid to the Timetable to ensure that the court remains child focussed throughout the progress of the proceedings and that any procedural steps proposed under the PLO are considered in the context of significant events in the child's life.
The expectations are that the proceedings should be finally determined within the timetable fixed by the court in accordance with the Timetable for the Child. The timescales in the PLO being adhered to and being taken as the maximum permissible time for the taking of the step referred to in the Outline, unless the Timetable for the Child demands otherwise.
Prosecutors should ensure that they are aware of the Timetable. They will need to provide information regarding criminal proceedings dates/events and, equally, they should take the contents of the Timetable into account when contributing to their own case management procedures in the criminal proceedings. For example, where a trial appears likely it should not simply be a matter of witness availability, but information should be obtained concerning significant steps in the child's life that are likely to take place during the proceedings (such as exams, revision, special events, Family Court proceedings, etc) and efforts should be made to fix the trial date accordingly.
Such an approach should help both the family court and the criminal court to work in synchronisation in the interests of justice and the welfare of the child.
Other matters of relevance to prosecutors
Case Management Orders will include orders relating to the disclosure of documents into the proceedings held by third parties, including medical records, police records and the disclosure of documents and information relating to the proceedings to non-parties.
The court may give directions without a hearing.
Where facilities are available to the court and the parties, the court will consider making full use of technology including electronic information exchange and video or telephone conferencing.
Communication of Information Practice Direction 12G
Practice Direction 12G sets out what information can be communicated to third parties - including the police and CPS. The tables from the old rules (Part X, Rules 11.2 - 11.9 of the Family Proceedings [Amendment] [No. 2] Rules 2009, which include the Family Proceedings Rules 1991) are restated.
In essence, a party in family proceedings or any person lawfully in receipt of information can give 'the text or summary of the whole or part of a judgment given in the proceedings' to a police officer for the purposes of a criminal investigation or to a member of the CPS 'to enable the Crown Prosecution Service to discharge its functions under any enactment.'
Apart from the judgment, there may also be information contained in family court case papers that would be relevant to the criminal case, such as: previous consistent or inconsistent statements of witnesses or defendants; evidence of similar incidents; material for bad character applications; or medical reports/medical expert evidence. Disclosure and use of such documents is restricted.
The Rules permit the communication of information relating to the proceedings (whether or not contained in a document filed with the court) not only where the court gives permission, but also where communication is to (amongst others) 'a professional acting in furtherance of the protection of children', which is defined as including a police officer who is exercising powers under section 46 of the Children Act 1989 (removal and accommodation of children in an emergency) or is serving in a child protection unit or a paedophile unit of a police force, or a professional person attending a child protection conference or review in relation to a child who is the subject of proceedings to which the information relates.
Information or documentation communicated as above 'in furtherance of the protection of children' cannot be communicated to CPS without the express permission of the Family Court.