Vicky’s face stares out from a television screen, just yards from the
men accused of subjecting her to years of sexual abuse. Her long blonde
hair tied in braids, the 11-year-old fidgets nervously in her seat,
clutching a doll to her chest as jurors at the High Court in Edinburgh
wait to hear her speak.
Courting disaster for child witnesses
A wigless Lord MacLean, “dressed down” in suit and tie to put the
child at ease, asks about the girl’s favourite television programme —
Sabrina The Teenage Witch — and her favourite lesson at school — drama.
Then, inevitably, the judge slowly and carefully begins to steer the
conversation towards the serious allegations of child sexual abuse. Now 14, the girl will never forget court room three, nor the ten days
of gruelling testimony which she gave in July 2001. Tragically, her
evidence proved to be worthless.
When her eight-year-old brother took to the stand to make similar
allegations, he could not cope with the ordeal, and when he broke down
during cross-examination, the case collapsed.
The six men from Ayrshire, accused of being members of a paedophile
ring, had consistently denied all charges against them. They were freed
when the Crown Office abandoned the case. Clearly disturbed at the prospect of giving evidence in court, the
boy began to sob as he was questioned by lawyers, and he was prevented
from continuing on medical advice. Lord MacLean told the jury it would
not be in the best interests of the boy to complete his evidence, as a
child psychologist claimed he could suffer permanent mental scars if he
carried on.
Crucially, the judge said there was no alternative to
cross-examination as a means of testing the evidence of children in a
criminal trial. But the case provoked a public outcry and there were
calls for a review of the way child witnesses were treated in court. Two years on and campaigners say little has changed. Children
continue to be thrust into adult courts where, through a combination of
fear and nerves, they are unable to give a good account of themselves.
Now, new laws aimed at protecting vulnerable witnesses in Scotland
have been dismissed as a wasted opportunity. Far from being a “Bill of
Rights” for minors who give evidence in court, there is growing concern
that the Vulnerable Witnesses (Scotland) Bill will leave much to the
discretion of judges and sheriffs.
Sandra Brown, the director of the Moira Anderson Foundation, a
children’s charity, claims the legislation fails to address fundamental
problems in the justice system. She says: “The present system is about
destroying children as witnesses in court. The aggressive
cross-examination of child witnesses is designed to break them. This new
law is all about tinkering with what’s already in place and softening
the blow. It’s a wasted opportunity.”
Ms Brown, a former lecturer who runs a helpline for victims of abuse,
argues children should be taken out of court altogether and interviewed
in a less threatening environment. "Children should not be anywhere near
the High Court," she says. “For this bill to work, they have to
stop children giving evidence in court. In this day and age we have
video conferencing, which means children do not need to go to court.”
According to the bill, in cases of a sexual or violent nature,
children under 12 will “not normally” have to go to court to give
evidence. However, critics say the wording is too vague and such
witnesses should be guaranteed exemption from court appearances. Following the collapse of the Edinburgh case, the six accused called
for a public inquiry in the hope of clearing their names, and both sides
insisted the outcome of the case was far from satisfactory.
Derek Ogg, QC, a defence lawyer in the trial, says the way child
witnesses were handled must be changed. Although he rebuts criticism of
how the children were treated by the defence, he agrees that reforms
were needed to help ease the trauma faced by children. “There is nothing that can change the gruesome and distressing nature
of some evidence children may have to give ... but I think we could do a
lot more to help them make the best of giving that evidence,” he says.
Joyce Plotnikoff, a legal researcher, accuses ministers of
short-changing victims because of a failure to implement a raft of
measures to protect children in the courts. She was commissioned by the
then Lord Advocate, Lord Rodger, in 1995 to carry out a study on how to
bring about changes in the way child witnesses were dealt with. This was
presented in 1999.
Four years on, Ms Plotnikoff says the bulk of her recommendations
have been forgotten. As part of the new bill, children under 12 should
have their evidence pre-recorded on video in advance of a trial.
However, they may still have to be cross-examined, using CCTV in an
annexe of the courtroom.
Ms Plotnikoff says: “A lot of my recommendations have
fallen by the wayside. I am in despair on behalf of witnesses who were
involved in our research. They had a genuine hope their experiences in
court would make it better for other children.”
The mother of the children at the centre of the Edinburgh case says
her concerns had been met with a wall of silence. Despite putting
forward more than 60 recommendations to the Crown Office to improve the
lot of child witnesses, she claims little had changed. “When you read
the small print of this bill, nothing much has changed at all. For
children to be anywhere near the court is wrong. They should be taken
out of the equation altogether,” she said.
She remains bitter about the Crown’s handling of the case, and has no
doubt her son would have been able to withstand questioning had he been
allowed to give evidence away from the court. “If he had not been in the
court he would have been able to cope. We felt at the time that things
would change because of what happened in our case, but we have seen no
difference.”
A spokeswoman for the Scottish Executive insists great strides have
been taken to protect vulnerable witnesses: “The accused has the right
to a fair trial and the defence has to be allowed to ask questions. It
is for the judge to ensure that the line of questioning is not
inappropriate.”
The Executive is expected to publish guidelines in the next month on
how to take evidence and interview children who have been abused.
The girl’s name, Vicky, has been changed to protect her identity.
By Tanya Thompson
16 September 2003
http://www.news.scotsman.com/scotland.cfm?id=1024942003
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