Safeguarding Children as Victims and Witnesses

Updated: October 2019|Legal Guidance

Introduction

The purpose of this document is to provide practical and legal guidance to prosecutors dealing with cases that involve children (Article 1 of the UN Convention defines a child as any person who has not yet reached their 18th birthday) as victims and witnesses. 

This guidance outlines the measures that can be taken to help safeguard children in the course of criminal proceedings, but the position can be summed up in the following principles: Expedition, Sensitivity and Fairness.

Whatever the offence, prosecutors should consider the position of the child and what can be done, having regard to the role and the powers of the prosecutor, to safeguard the child.  Prosecutors should have the ABE guidance (‘Achieving Best Evidence’ which provides detailed recommended procedure for interviewing child witnesses) in mind when reviewing cases in which a child is a victim or witness.  In cases involving children either as victims or as witnesses, delay should be kept to a minimum to reduce the levels of stress and worry about the process that the child may feel.

Child witnesses under the age of 18 will automatically be eligible for special measures by virtue of section 16 of the Youth Justice and Criminal Evidence Act 1999.

Prosecutors will need to consider in appropriate cases such as domestic abuse, child sexual abuse, neglect or cruelty whether to make enquiries through the police of the local authority solicitors about family proceedings.  There can be considerable benefits to be gained where agencies and authorities establish close working relationships to work together to safeguard and promote the welfare of children.

Prosecutors should try to provide assistance to local authorities and person appointed by the court to act in the best interests of a child seeking to discharge their statutory responsibilities.

Separate guidance is available in relation to youth offenders. Separate, detailed guidance is also available in relation to child abuse cases.

Prosecutors and Safeguarding

Safeguarding is defined by Working Together to Safeguard Children 2018 as:

  • Protecting children from maltreatment
  • Preventing impairment of children’s health or development
  • Ensuring that children grow up in circumstances consistent with the provision of safe and effective care
  • Taking action to enable all children to have the best outcomes

Although the main responsibility for children's welfare and safety will usually lie with agencies such as policing, social, health and education services, there is, nevertheless, a role for prosecutors in terms of safeguarding children.

Prosecutors may have contact with children as victims or witnesses and also as defendants. This can be indirect, such as making charging decisions and file reviews, and direct, such as prosecuting cases in court.

Prosecutors' decisions and actions may have a direct impact on the safety of a child in individual cases. Examples include:

  • Considering whether bail (with or without conditions) is appropriate;
  • Deciding on the charge or the public interest in prosecuting a case;
  • Successfully prosecuting offenders who pose a danger to children, so that the courts can impose sentences that protect children.

One of the key points to recognise is that the prosecution process itself, particularly the trial, can be daunting and stressful for children. There are risks of re-traumatising the child or causing the child unnecessary worry and distress.

Working together

One of the very clear messages of the Every Child Matters report (presented to Parliament in 2003), the Children Act 2004 and joint thematic Safeguarding Children inspections is that there can be considerable benefits to be gained where agencies and authorities establish close working relationships and share information. Where independence and objectivity are not compromised, prosecutors should positively engage with other authorities and agencies to safeguard children, including through the Local Safeguarding Children Board (see further at Annex 1 below).

Cases involving children

Children can be victims of offences and can also be affected by crime even if they are not themselves victims or witnesses. A child may be seriously affected by, for example, domestic violence, even if not present in the same room as the offence is committed.

The Code for Crown Prosecutors reminds prosecutors to consider the circumstances of the victim when considering whether a prosecution is required in the public interest. The more vulnerable the victim’s situation, or the greater the perceived vulnerability of the victim, the more likely it is that a prosecution is required.

Whatever the offence, prosecutors should consider the position of the child and what can be done, having regard to the role and the powers of the prosecutor, to safeguard the child including the availability of Special Measures and the possibility of a prosecution without the participation of the victim. Although it is unlikely to be possible to eliminate stress and worry altogether, prosecutors should take such steps as are possible to reduce it to a minimum.

Reviewing cases where the child is a victim or a witness

Achieving Best Evidence (ABE)

'Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses, and guidance on using special measures' (ABE) provides detailed recommended procedure for interviewing child witnesses. The Guidance covers practical issues around initial contact with the witness, consent, when the child can be further interviewed and issues to be considered for very young children, children with disabilities or children who are psychologically disturbed.

Although the guidance is advisory and does not constitute a legally enforceable code of conduct, significant departures from the guidance may have to be justified in court if relied upon by the defence to challenge part or all of the evidence of the witness.

Viewing the visual evidence

The whole recording must be viewed for the purposes of review and before the visual recorded interview (VRI) is released to the defence or a third party. The purpose of the viewing includes:

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

It is particularly important to edit irrelevant material from long interviews. Both child witnesses and juries may struggle to concentrate on the key issues, when required to view such records of interviews, some of which last several hours.

Having reviewed the visual evidence and assessed the quality of the evidence and of the recording, prosecutors must keep proper records of their assessments and decisions.  The prosecutor’s role is to provide relevant feed back to the police regarding the quality of the ABE/VRI and to direct police to undertake the actual editing.

The child victim or witness can also give a pre-trial visual recorded cross-examination or re-examination.  This can be applied for where there has been a s27 direction for a visual recorded interview to be admitted as evidence and when a victim or witness meets the vulnerable criteria.  A visual recorded examination will be automatically admissible, upon application, unless this would not be in the interests of justice or would not maximise the quality of the complainant’s evidence. (s28 YJCEA).

Code for Crown Prosecutors (the Code)

Evidential stage

In relation to the evidential stage, there may be situations in which the age or maturity of the child may raise a question as to whether or not they are capable of giving understandable evidence or being cross-examined. It is important not to make assumptions based on age alone. Each child is an individual and will have different levels of maturity and ability.

There is no lower age limit in relation to giving evidence, but prosecutors should be satisfied that the child will be able to give understandable evidence - all witnesses have to be able to understand questions and be able to give replies that can be understood as set out in section 53 of the Youth Justice and Criminal Evidence Act 1999. Whether this is critical to the case will depend on what other evidence is available. Prosecutors should, however, consider all options available that would enable a young or immature child or a child with learning difficulties to give evidence effectively; for example, through the use of a Registered Intermediary.

In R v Barker [2010] EWCA Crim 4, it was stated that it was not open to the judge to create or impose some additional but non-statutory criteria based on the approach of earlier generations to the evidence of young children. In particular, although the chronological age of the child will inevitably help to inform the judicial decision about competency, in the end, the decision is about the individual child and their competence to give evidence in the trial in question.

Public interest stage

So far as the Public Interest stage is concerned, a prosecution is more likely to be needed in the public interest, if the offence was committed in the presence of or in close proximity to a child (Code 4.14). This is, of course, subject to any factors that may make a prosecution less likely to be needed (Code 4.14).

The UN Convention on the Rights of the Child requires that authorities should give primary consideration to the best interests of the child. In terms of prosecution, this means that prosecutors are bound to consider the likely consequences for any children, be they victims or witnesses, of proceeding with a prosecution. Careful consideration must therefore be given to the factors for and against prosecution.

Prosecutors should consider all of the questions under the Public Interest section 4.14 of The Code:

  • How serious is the offence committed?
  • What is the level of culpability of the suspect?
  • What are the circumstances of and the harm caused to the victim?
  • What was the suspect’s age and maturity at the time of offence?
  • What is the impact on the community?
  • Is prosecution a proportionate response?
  • Do sources of information require protecting?

However it is quite possible that one public interest factor alone may outweigh a number of other factors which tend in the opposite direction.  The more vulnerable the victim’s situation, or the greater the perceived vulnerability of the victim, the more likely it is that a prosecution is required.  This includes where a position of trust or authority exists between the suspect and victim

Prosecutors also need to consider if a prosecution is likely to have an adverse effect on the victim’s physical or mental health, always bearing in mind the seriousness of the offence, the availability of Special Measures and the possibility of a prosecution without the participation of the victim.

Prosecutors should take into account the view expressed by the victim about the impact that the offence has had.  In appropriate cases, this may also include the views of the victim’s family.  However, the CPS does not act for victims or their families in the same way as solicitors act for their clients, and prosecutors must form an overall view of the public interest.

The Code (4.14(d)) is also concerned with the suspect’s age and maturity at the time of offence.  The CJS treats children differently to adults and significance must be attached to the age of a suspect if they are also a child:

  • The best interests and welfare of the child must be considered, including whether a prosecution is likely to have an adverse impact on their future prospects that is disproportionate to the seriousness of the offending.
  • Prosecutors must have regard to the principal aim of the youth justice system, which is to prevent offending by children and young people.  Prosecutors must also have regard to the obligations arising under the UN 1989 Convention on the Rights of the Child.
  • As a starting point, the younger the suspect, the less likely it is that a prosecution is required.
  • However, there may be circumstances where the offence committed is so serious or the suspect’s past record suggests that there are no suitable alternatives so that a prosecution is therefore in the public interest.  Other aggravating features are:
    • The offence is violent or induces genuine fear of violence in the victim
    • The offence is sexual
    • The offence is motivated by hostility based on the gender, sexuality, disability, race, religion or ethnicity of the victim
    • The victim is vulnerable
    • The damage or harm caused is deliberate and cannot be described as minor

It follows that prosecutors will have to balance the interests of the child with the wider interests of the public at large in reaching a decision on whether or not to prosecute. Some decisions will inevitably be very sensitive and finely balanced.

In such cases, prosecutors should ensure that the final decision is fully supported by relevant information and reasoning. In many cases it is possible adequately to mitigate adverse effects of the trial process by applying for appropriate special measures. In extreme cases, witness anonymity, for example, may be considered.

As part of the review process, prosecutors should always be satisfied that the police have provided them with adequate information on the circumstances of the child for an informed decision on the public interest to be made. This may entail asking the police to make further enquiries with the child's family or social services as to the effect that giving evidence may have psychologically or emotionally on the child.

Prosecutors should also ensure that the police have informed them of all children who may be involved in the case, whether or not they are witnesses to the offence(s) under investigation, in order that a fully informed casework decision can be made. Other children may be at risk - this is an important factor to take into account when considering the public interest. Prosecutors should enquire whether there have been any previously recorded incidents and whether there are or have been any other relevant criminal or civil/family proceedings.

Domestic abuse

In cases of domestic abuse, prosecutors should always seek information from the police regarding the presence of children in the household, the extent to which they have been exposed to the domestic violence and whether the children are subject to any orders, for example, child protection register, contact, non-molestation orders, etc.

Further information can be found in the Domestic Violence Legal Guidance.

Child prostitution

Some children are persuaded, lured or forced into prostitution. We will treat them as abused children who need help. We will always seek to prosecute those who organise prostitution and who benefit financially from abusing children. Further information can be found in the Legal Guidance on Prostitution and the Exploitation of Prostitution.

Trafficked children

Trafficked children may be forced to commit criminal offences while they are in a coerced situation. When reviewing any such cases, prosecutors must be alert to the possibility the child may be the victim of trafficking. For further guidance refer to the Legal Guidance on Human Trafficking, Smuggling and Slavery.

Pre Trial Therapy for Child Witnesses

It is a fundamental aspect of CPS policy and the multi-agency practice guidance, ‘Provision of Therapy for Child Witnesses Prior to a Criminal Trial’, that the best interests of the child are paramount when deciding whether, when and in what form, therapeutic help is given.

Communicating decisions not to charge or to discontinue or substantially alter a charge

Where the CPS has made a decision not to prosecute or to significantly alter a charge, victims are contacted through the Victim Communication and Liaison Scheme (VCL). In the case of child victims prosecutors need to consider carefully to whom VCL letters should be sent.

If the victim is a very young child and both parents are defendants then no letter should be sent. It would normally be inappropriate to write directly to a child under twelve in any circumstances. If the victim is a child of twelve or over it may be appropriate to write to them, as well as the parent/carer. If the victim is a child looked after by the local authority, the letter should be sent to the guardian and, if sufficiently old, the child.

However, it is important to note that the parents or carers do not have an automatic entitlement to confidential information relating to their child if the child is deemed capable of sufficient understanding.

Prosecutors should refer to the Victim Communication and Liaison Scheme Legal Guidance for further information on communicating decisions. An assessment should be made of the age and understanding of the child. Prosecutors should refer to the file to ascertain the level of parental/carer involvement.

Family Proceedings

Prosecutors will need to consider in appropriate cases (domestic abuse, child sexual abuse, neglect or cruelty, for example) whether to make enquiries through the police of the local authority solicitors, about family proceedings.

The Family Procedure Rules

The Family Procedure Rules (FPR), provide a single set of rules, supplemented by Practice Directions, for proceedings in the magistrates' courts, county court and High Court. Further information about the FPR and supplementary Practice Directions can be found here.

Prosecutors should familiarise themselves with the timetables and processes of the family court when reviewing cases with parallel care proceedings. In particular:

  • Practice Direction 12A (para 5 ‘The Timetable for the Child’):  This is to ensure that any procedural steps proposed are considered in the context of significant events in the child's life such as exams, special events and family court proceedings.  Prosecutors should take the contents of the Timetable into account when contributing to their own case management procedures in the criminal proceedings.
  • Practice Direction 12G (para 2.1 ‘Communication of information’):  This sets out what information can be communicated to third parties - including the police and CPS. 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 judgement 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 department to discharge its functions under any enactment.'

Prosecutors should ask if the police already have, or can obtain copies of orders and judgments and, in appropriate cases, should further consider whether an application for leave to obtain and use any other documents or information is required. An application for access to documents must be made to the judge in the proceedings.

Protection against self-incrimination

Section 98(1) of the Children Act 1989 provides that in proceedings under part IV or V of the Act (e.g. care, supervision, emergency protection orders), no person should be excused from giving evidence on any matter or answering any question put to them in the course of their giving evidence, on the grounds that doing so might incriminate their spouse/civil partner of an offence.

Section 98(2) provides that a statement of admission made in such proceedings shall not be admissible in evidence against the person making it, or their spouse/civil partner, in proceedings for offences other than perjury.

The protection offered by section 98(2) is just one of the factors to be considered by the Family court when deciding whether to permit disclosure of documents to the police/prosecution.

It should be noted that the prohibition in section 98(2) refers to 'criminal proceedings' and does not extend to a police investigation. The police may therefore put matters to a suspect in his interview under caution. If adopted, the admissions then become admissible in the criminal proceedings in the usual way - subject to the usual provisions of s.76 and 78 PACE.

Disclosure of criminal material to the family courts

The police and CPS often receive requests from parties in family proceedings (particularly care cases) for disclosure of material generated during the police investigation. Neither blanket approval nor blanket denial would be appropriate responses. The merits and risks of disclosure should be considered in respect of each item. Where criminal proceedings have already started, the decision should be made by prosecutors, in consultation with the police. Where criminal proceedings have not yet started, police will often consult the CPS in any event.

The 2013 multi-agency protocol for Good Practice for Disclosure of Information in Cases of Alleged Child Abuse and Linked Criminal Cases sets out mechanisms for the appropriate disclosure of police information in family proceedings courts to assist the courts in the determination of any factual or welfare issue within the family proceedings.

Prosecutors have a duty to protect the integrity of the prosecution process and to ensure, as far as they are able, that a fair trial takes place. Disclosure to parties in family court proceedings of material such as statements, exhibits, police records, generated during the police investigation in relation to cases where criminal proceedings have not yet concluded, or the decision to start them has not yet been made, run the risk of prejudicing a fair trial.

Local authorities and persons appointed by the court to act in the best interests of the child) have a duty to investigate a child's background and to provide the court with all relevant information. Material generated by a police investigation is likely to contain relevant information. CPS policy as set out in ‘Disclosure of material to Third Parties’ is that prosecutors should try to provide assistance to local authorities and persons appointed by the court to act in the best interests of the child as per the ACPO Police/Family Disclosure Protocol seeking to discharge their statutory responsibilities.

Prosecutors should first identify the nature and degree of risk of prejudice to a fair trial in disclosing particular items of material. Having identified the risk, what material can be disclosed without compromising a fair trial? If material cannot be disclosed safely forthwith, can it be disclosed at a later date? What is the issue to be decided in the family court?

Where possible, agreement should be reached with the local authority or parties' solicitors as to the extent and timing of any disclosure. This should help to avoid a court hearing. If agreement cannot be reached, the applicant party should be informed in writing, with reasons, why no or only partial disclosure can take place. The letter is likely to be placed before the family court Judge and all reasons should be fully articulated.

Non-Recent and Institutional Cases

Non-Recent cases

Allegations arising from incidents years earlier are a common feature of prosecutions involving child victims, particularly allegations of sexual offences.  In some cases, the child victims will now be adults.

There are often good reasons why such cases do not come to light at the time of the incidents, beyond the possibility that they are untrue. For example: children are used to being controlled by adults and offenders can be expert at exercising control; they may not even realise until they are older that they have been subjected to abuse; they may only be prompted to reveal what happened to them when they see the pattern being repeated with younger relatives.

There is nothing that intrinsically prevents a prosecution, merely because the incident dates from a much earlier time. Abuse of process arguments can often be successfully defended. Nevertheless, prosecutors must take additional care with such cases, if for no other reason than that the evidence is inevitably more fragile. Consideration must also be given to what evidence may no longer be available and how this might impact on the fairness of the trial.

Institutional cases

If prosecutors are involved in a case involving a number of victims, particularly of allegations of institutional abuse, they should make enquiries to the police about what led to the witnesses coming forward.

'Trawling' for new potential witnesses is not prohibited. The police have a statutory duty to investigate allegations of child abuse, regardless of whether they relate to contemporary or past events. Prosecutors should certainly enquire as to whether and how it has been done and consider the implications for any evidence that arises. Any initial approach by the police to former residents should, so far as possible, go no further than a general invitation to provide information to the investigation team.

The court process

As a basic principle, in cases involving children either as victims or as witnesses, delay should be kept to a minimum, in order to reduce, so far as is possible, the levels of stress and worry about the process that the child may feel. From an evidential point of view, the less delay there is the more likely it is that the events will be fresher in the child's memory.

The child victim or witness are automatically entitled to (s16 YJCEA) and can access a variety of Special Measures: removing wigs and gowns, using a live or remote link, screens, Registered Intermediaries and can also give a pre-trial visual recorded cross-examination or re-examination.  This can be applied for where there has been a s27 direction for a visual recorded interview to be admitted as evidence and when a victim or witness meets the vulnerable criteria.  A visual recorded examination will be automatically admissible, upon application, unless this would not be in the interests of justice or would not maximise the quality of the complainant’s evidence. (s28 YJCEA)

This means identifying cases involving children as early as possible, prioritising review and preparation, observing court time limits (especially in relation to special measures applications) and managing disclosure of unused material.

The 2018 cross agency protocol ‘Expedition of Cases Involving Witnesses under 10 Years’ (u10 protocol) states that in all cases the interests of the child should be paramount and the arrangements in the protocol should not override proper and appropriate victim and witness care; including management where appropriate to preclude the need for a child to give evidence at all.

The u10 protocol applies to cases charged on or after 1 April 2015 where:

  • A witness is under 10 at the time the incident is reported to police; and
  • The witness under 10 has provided and evidential statement of ABE interview in relation to the incident, either in support of the prosecution or defence

Better Case Management has key principles which safeguard children:

  • A single national process
  • Getting it right first time
  • The early resolution of pleas and identification of issues in the case
  • Reduced number of hearings (and more effective hearings)
  • Identifiable person responsible for the case
  • Compliance with the Criminal Procedure Rules, Criminal Practice Direction and Court Orders

Plea and Trial Preparation Hearings should take place at the Crown Court within 28 days after sending from the magistrates’ Court. Special Measures for witnesses should be agreed at this hearing.  A Further Case Management Hearing may take place to enable a Ground Rules hearing (CrimPR 3.9(7)) or at the conclusion of the s28 pre-recorded visual cross examination.

The full service of the prosecution case is fixed at 50 days after sending for custody cases and 70 days for bail cases.

Bail

The imposition of appropriate conditions or a remand in custody where applicable can be a highly effective way of safeguarding children. The nature of the application will depend on the circumstances of the case; where the defendant is charged with an allegation of physical or sexual abuse against a child, protection of the child will be obvious. However, there will be cases where there is a child who is not a victim or a witness, but where the behaviour of the defendant is such that there are substantial grounds for believing that the child is in danger.

There may be circumstances where a contact order is in place and bail conditions should allow this to continue.  There is no legal requirement for this to be so - if the court considers that unconditional bail is not appropriate, that specific conditions are required and there is a conflict with contact that cannot be resolved, the court should nevertheless be requested to impose the conditions or consider a remand in custody as an alternative.

Special Measures

The Youth Justice and Criminal Evidence Act 1999 (YJCEA) introduced a range of measures that can be used to facilitate the gathering and giving of evidence by vulnerable and intimidated witnesses. The measures are collectively known as "special measures".

Special Measures are a series of provisions that help vulnerable and intimidated witnesses give their best evidence in court and help to relieve some of the stress associated with giving evidence. Special measures apply to prosecution and defence witnesses, but not to the defendant and are subject to the discretion of the court.   For child witnesses they can include:

  • Removal of wigs and gowns
  • Live or remote link
  • Registered Intermediary
  • s.28 visually recorded cross-examination

The requirement for special measures should have been considered initially as part of the charging advice.

Child witnesses under the age of 18 will automatically be eligible for special measures by virtue of section 16 of the Youth Justice and Criminal Evidence Act 1999. Prosecutors should refer to Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses and also the Legal Guidance on Special Measures including video recorded interviews, live link and pre-recorded visual examination (s28) for more information.

It is important that any conversation and agreement about the Special Measures that will be applied for between the police officer and the prosecutor is recorded by both parties.  Timely relaying of the agreed Special Measures to the child witness by the police may help to reduce worry and stress by giving an explanation of the procedures involved.

Disclosure

Prosecutors should apply the provisions of the Criminal Procedure and Investigations Act (CPIA) 1996. The Disclosure Manual provides full guidance on these issues.

There are no particular provisions that differ in respect of child witnesses. However, prosecutors should bear in mind the particular need to avoid delay and to ensure that disclosure issues are dealt with expeditiously, especially where third party disclosure issues are involved - for example, material held by the Social Services or by the Local Safeguarding Children Boards.

The Trial

Introduction

The CPS is committed to treating witnesses at court with respect and sensitivity. Prosecutors are reminded about their obligation to meet all witnesses before they give evidence, put nervous or vulnerable witnesses at ease and explain court procedures. It is particularly important that the advocate speaks to child witnesses before the trial.  The Bar/CPS standard on communication with victims and witnesses called ‘Speaking to Witnesses at Court’ (STWAC) covers all the responsibilities of the prosecuting advocate for victims and witnesses (including children) before and after court.

Explaining procedures

The purpose of speaking to witnesses is to explain procedures with which they will be unfamiliar, to put them at ease and to thank them for coming to give evidence. Advocates should try to adjust their tone and language to an appropriate one for the age and ability of the child without being patronising. Straightforward, non-legal language should be used and questions should be kept short and simple.

Prosecutors should anticipate cases in which a victim of a sexual offence may be asked to demonstrate intimate touching on their body. It is almost always inappropriate and unnecessary to have the child point to parts of their own bodies.

Agreement should be reached with the defence and the court to use a body outline or alternative method for eliciting this information. Children may also be embarrassed at having to refer to parts of their bodies; advocates should find out what words they use and are comfortable with.

Advocates should ensure that the witness understands the procedures and is given an opportunity to ask questions. It should not be assumed that the child has understood what has been said, even if they say they have. This is particularly so where a child has learning disabilities as such children are more likely than others to say they understand something that they do not; this may come from a desire to please or may be a learned response aimed at avoiding trouble.

In appropriate cases, the use of a Registered Intermediary should be considered to assist advocates to assess understanding. Further information about Registered Intermediaries can be found in the Special Measures Legal Guidance. 

For further information concerning the competence of a witness, please refer to the Competence and Compellability Legal Guidance.

Waiting time

It is good practice to give witnesses an indication of the time they are likely to have to wait, to minimise the waiting time at court for children and to arrange for them to be at court for the shortest possible time.

In some areas the Crown Court may start trials in the afternoon so that preliminaries can be dealt with in the absence of the child witness. The child can then attend the next morning and is likely to be fresher and more alert.

Regular liaison should be had by the prosecution team with the Witness Service supporter or OIC so that a child can wait until shortly before needed to give evidence, either at home or somewhere away from the court where he or she is likely to feel more relaxed.

Explaining delays

Prosecutors should, where possible, explain the reasons for any delays. If they cannot do so in person because they cannot leave the courtroom they should ensure that an assistant or court official does so. Not only is it courteous, but it will also reduce anxiety levels. That is important in itself but will also mean that the witness is more likely to give their best evidence.

Familiarisation visits

Child witnesses should have had the opportunity to have one or more visits to the court. This can be vital in ensuring that the child is not overawed on the day of the trial and that they understand the layout of the court when giving evidence from the live link room.

As part of the detailed needs assessment carried out by the Witness Care Unit, a child witness (or their parent/carer depending upon the age of the child) will be asked whether the child would like a court familiarisation visit, known as a pre-trial visit. If they indicate that they would like a pre-trial visit, the Witness Care Unit will pass this information on to the Witness Service provider (Citizens Advice for any witness without a London postcode and the London Victim and Witness Support (LVWS) for any witness with a London postcode). The Witness Service will contact the child witness (or parent/carer) directly to arrange the visit.

Memory refreshing

It is CPS policy that all witnesses have an opportunity to refresh their memory before giving evidence in court. A witness may be provided with a copy of their statement on the day of trial; they are not entitled as of right to see their statement or to be sent a copy of it before the day of trial.  With regards to viewing visual evidence in chief, how, when and where this is done should be decided upon a case by case basis. The overriding aim is to enable the witness to give their best evidence in court - in particular when being cross-examined.

Viewing the visual recorded interview ahead of the trial, in more informal circumstances, may help the child to familiarise themselves with seeing their own image on the screen and makes it more likely that they will concentrate on the task of giving evidence.

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

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

Prosecutors should make timely enquiries as to how and when the child witness will refresh their memory so as to be sure that it will be done.

A decision will need to be made about who is the person best placed to support the child witness while refreshing their memory.

In particularly sensitive cases, for example extremely young witnesses or disabled witnesses with severe communication problems, it has proved beneficial to visually record the witnesses refreshing their memories of their VRIs/ABEs. However, it is not expected that such a procedure should be routinely used for all witnesses.

The ultimate aim must be to enable the child to give their best evidence. The child should come to the cross-examination feeling as fresh and as ready as possible, not exhausted, bored or avoidably distressed. But they should not have to face cross-examination 'cold' either. Each case must be decided upon its own merits, taking into account the needs of the individual child.

Publicity and Reporting Restrictions

Legal Guidance ‘Reporting Restrictions – Children and Young People as Victims, Witnesses and Defendants’ provides further guidance.

Section 45 Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) has discretionary powers to restrict reporting the identity of victims, witnesses and defendants under the age of 18 who appear in either the Magistrates Court or the Crown Court.  Section 45 (YJCEA 1999) replaces s.39 (CYPA 1933) in relation to all criminal proceedings but not for civil and family proceedings, in which s.39 still applies. 

This anonymity will remain until that person reaches the age of 18 unless, under s.45A (YJCEA 1999), the criminal court grants life-long anonymity to child victims and witnesses.  Consistently with the law in relation to adult defendants, there is no power under s.45A to grant life-long anonymity to juvenile defendants.

Prosecutors must apply for s.45 (YJCEA 1999) for witnesses to rape or serious sexual offences; victims of these offences have automatic anonymity subject to the provisions of the Sexual Offences (Amendment) Act 1992.

Section 49 (CYPA1933) places an automatic restriction on reporting information that identifies or is likely to identify any person under the age of 18 who is concerned in Youth Court proceedings as a victim, witness or defendant.  This would include details of their school, place of work or any still or moving picture of them.

Other provisions

There are provisions in the Sexual Offences Amendment Act 1992 for a lifetime ban on publicity identifying a person in respect of certain sexual offences if it is likely to lead members of the public to identify the person against whom the offence is alleged to have been committed. The provision is not specific to children.

Section 25 Youth Justice and Criminal Evidence Act (YJCEA) 1999 Section II provides a range of Special Measures including for hearings to be held in private and the public gallery cleared but is subject to eligibility and must 'maximise quality of evidence'.

The measure is only available in cases involving a sexual offence, an offence under section 1 or 2 of the Modern Slavery Act 2015 or when the court is persuaded that someone has tried to intimidate, or is likely to intimidate, the witness. At least one member of the press will be permitted to remain in court if one has been nominated by the press.

Sentencing Council (SC) Guidance

The Sentencing Council provides sentencing guidance for all offences in the Magistrates Court and Crown Court based on offence category, starting point of sentencing and category range.

The category ranges are based on the court’s assessment of Culpability and Harm.

Higher culpability factors involve: offence committed whilst on bail for other offences, offence motivated by the victim’s sexual orientation/disability/race/religion (or presumed membership), previous convictions, an intention to commit more harm than actually resulted from the offence, offenders operating in groups or gangs, deliberate targeting of vulnerable victims, use of a weapon to frighten or injure the victim, abuse of power or position of trust. 

Factors contributing to greater harm involve: multiple victims, especially serious physical or psychological effect on the victim, even if unintended, victim is particularly vulnerable, presence of others (for example, children), sustained or repeated assaults on the same victim.

Disqualification

In cases involving children prosecutors should always consider applications for orders to prevent an adult defendant working with children in future.  For offences involving endangering a child or sexual offences involving a child these are applied automatically with the statutory reference at Section 2 and Schedule 3 of the Safeguarding Vulnerable Groups Act 2006.  Also see the Legal Guidance on Prosecuting Child Sexual Abuse Cases.

After the hearing

Explaining the outcome

Prosecutors should make sure that after the hearing children are told what has happened and that they understand. This is particularly important when the case is dropped at court or lesser pleas are accepted. The sentence the defendant has received and its effect should also be explained.

Communicating the result of the case

Advocates should try to adjust their tone and language to an appropriate one for the age and ability of the child without being patronising. Straightforward, non-legal language should be used and questions should be kept short and simple.

If a child is not present at the hearing the Witness Care Officer or designated police contact will normally inform the child of the result of the case.

Saying 'Thank you'

It is very important that all witnesses who have attended court (whether they have given evidence or not) should be thanked for attending. This should be done at the outset when the prosecutor introduces him/herself to the witness but it may also be of value to the witness to receive thanks after they have given evidence. Prosecutors should therefore do this as a matter of course, regardless of the outcome of the case.

Where the prosecutor is not able to leave the court to speak with a witness who has just given evidence and been released, it is nevertheless good practice for the prosecutor to thank the witness in open court for attending.

A simple thank you may make all the difference to a child's experience and determine whether he or she will be prepared to give evidence again in future.

Annex 1: Local Safeguarding Children Boards (LSCBs)

Membership

On 29 June 2018, local authorities began their transition from Local Children's Safeguarding Boards (LSCBs) to the local safeguarding partner arrangements set out in Working together to safeguard children 2018 (Department for Education, 2018a).

When a child dies or is seriously harmed as a result of abuse or neglect, a review is conducted to identify ways that professionals and organisations can improve the way they work together to safeguard children and prevent similar incidents from occurring. The reviews are known as:

  • ‘Child safeguarding practice reviews’ in England
  • ‘Child practice reviews’ in Wales.

A ‘Rapid Review’ will be held within 15 days of referral of a case to establish the type of review required

Membership of the LSCB must include the Board Partners set out in section 13(3) of the Children Act (2004): District Councils; the Chief Officer of Police; the local probation board; the Youth Offending Team; Strategic Health Authorities and Primary Care Trusts; NHS Trusts and NHS Foundation Trusts; the Connexions Service; Children and Family Courts Advisory and Support Service ('CAFCASS'); the governor or director of any Secure Training Centre; and the governor or director of any prison in the local authority area which ordinarily detains children.

The CPS is not a statutory Board Partner, but is specifically mentioned in the list of 'other agencies and groups which the Local Safeguarding Children Boards need to link to'. The work of the LSCB (in particular serious case reviews and analysis of child deaths) may have a direct impact on our work. Prosecutors should refer to the Serious Case Review Legal Guidance for more information.

CPS involvement with Local Safeguarding Children Boards

CPS Areas are encouraged to engage with LSCBs as fully as possible. The main areas in which the CPS is likely to be involved are Child safeguarding practice reviews in England and Child practice reviews in Wales.

There may be issues of practicality relating to the number of Boards in an area, frequency of meetings, and the degree to which the CPS can contribute to the substance of the work. Networking opportunities for Area child abuse coordinators or specialists can be valuable. Areas should therefore consider how they can be involved within existing resources.