Tamara Jordan M.S.W. LL.B., RSW

1. A Review of International
Developments
The Examination & Cross-Examination of
Children in Criminal Proceedings:

2. o Current options for child witnesses in Canada
o Factors influencing developments in this area
 International legal covenants
 Research on children
• impacts of delay in giving evidence
• impacts of improper questioning
o Five major developments in seven countries
Overview

3. o Opportunity for children to use testimonial aids: screens,
support persons, CCTV, publication bans
Current Options for Child Witnesses
in Canada

4. Current Options for Child Witnesses
in Canada
Other procedural opportunities:
 alternatives to oath, changes to competency rules,
appointment of counsel to cross-examine a child when
accused is self-represented, adoption of forensic
interview as evidence-in-chief

5. o Convention on the Rights of the Child (1991)
o Optional Protocol to the Convention on the Rights of the Child on the
Sale of Children, Child Prostitution and Child Pornography (2005)
o 2005 - UN Guidelines on Justice Matters Involving Child Victims and
Witnesses of Crime
o 2009 - Implementation Guides for UN Guidelines
o Other International Covenants - 2001 European Council Framework
Decision and legal decisions
Influence of International Covenants

6. o Research
 children’s cognitive, language and memory
development
 vulnerabilities of children’s development have not been
taken into account
 impacts of delay in giving evidence
 impacts of inappropriate questioning
Research:
Experiences of Child Witnesses

7. o Mental health issues: worry, anxiety, sleep and appetite, decline
in academic performance and attendance, depression, panic
attacks, self-harm
o Failure to enter treatment in timely way due to fear of
contamination
o Impact upon quality of evidence, particularly for young children
o Long delays coupled with inappropriate
questioning is particularly problematic
Impacts of Delay

8. o Considerable amount of research into developing quality forensic
interview protocols (e.g., NICHD) to achieve best evidence from
children
o Yet, historically-accepted norms of cross-examination in
traditional, adversarial system pervasive
Impacts of Inappropriate Questioning

9. o Additional problems with questioning children
 Influence of authority figures
 Lack of knowledge of complex conversational rules
 Agree to end questioning
 Intentionally exploits children’s developmental limits, manipulates, confuses
and traumatizes children, fails to promote truth
o Behaviour of defence counsel
 Children regularly accused of lying
 Hostility and aggression intimidates children
 Secondary victimization
Impacts of Inappropriate Questioning

10. Australia – 6 States, 3 Territories
England (and Wales)
Israel
New Zealand
Norway
South Africa
United States – several states
Some Countries Doing Things Differently

11. 1. Entirety of a child’s evidence video-recorded before trial (full pre-recording)
2. Use of Intermediaries to increase communication between children and the
court
3. Prohibitions on improper questioning of child witnesses through legislation
or strong policy guidelines
4. Use of specialist examiners to take children’s evidence outside of court
5. Provision of legal or quasi-legal representatives to child witnesses at court
Five Major Developments in
Countries Reviewed

12. Western Australia
 Since 1992
 opportunity for children to have all of their evidence video-recorded
before trial for use at trial in lieu of child’s in-court testimony
England and Wales
 1999, enacted legislation
 currently being piloted
1. Full Pre-Recording

13. Western Australian Model
 CCTV in another room at court (support person and court
officer present)
 monitors show judge and counsel; in court, accused, judge,
counsel view child
 juries later view pre-recorded evidence on large monitors
 child watches forensic interview prior to hearing
 hearings expected to be completed within six months of
report to police
1. Full Pre-Recording

14. England and Wales
 Legislative provisions in 1999 - intermediaries to assist child
witnesses to communicate their evidence to the court
 Registered Intermediaries since 2008
• Assess child’s communication needs
• Assist at the ABE or police interview
• Prepare written report based on assessment for use during
“ground rules hearing”
• Assist at trial: intervene during miscommunication
• Skilled intermediaries who can tailor questions to children’s
abilities
2. Intermediaries

15. South Africa
 since 1993, during examinations and cross-examinations
 sit with child in separate room, take questions from counsel and
judge through headphones, translate and deliver questions to
children in developmentally-appropriate language
Israel
 since 1995, child interrogators provide this role at trial
Other Countries
 e.g., Western Australia, New South Wales, a few States (U.S.A)
 provide for use of communication assistants but rarely used
2. Intermediaries

16. Legislative: Australia, New Zealand, parts of the U.S.A.
 specific legislation to prevent improper questioning of child
witnesses, particularly during cross-examination
Policy: England and Wales
 strong and extensive guidelines for barristers and judiciary
 Advocacy Training Council’s 2013 toolkit re questioning child
or young person
 2011 Achieving Best Evidence guidelines – significant
departures need to be justified in court
3. Prohibitions Against Inappropriate
Questioning

17. Norway
 police officers with specialized training
conduct one video-recorded interview
for use at trial
 Field Investigative Interview of Children
 input from counsel and judge sitting in another room
 held within 14 days of report to police
 breaks and continued interviews until case “clarified”
4. Specialist Examiners

18. Israel
 first country to reform procedures for child witnesses in 1955
 child interrogators – interview and take all evidence from child for use
at trial
 power to prevent children from testifying in court (due to trauma)
 often video-recorded interview conducted by child interrogator only
evidence at trial
 can provide hearsay testimony and “reliability” findings but no
conviction on uncorroborated evidence of the child
4. Specialist Examiners

19. United States
 Guardian ad litems
• provided under federal and some state legislation
• appointed as additional support person to access
statutory rights to special measures
• can make recommendations to court re child’s
welfare
 Attorneys
• Federal legislation provides
• appear unused
5. Legal Representation for Child Witnesses
in Court

20. Norway
 for alleged child and adult victims of certain sexual and
violent offences since 1981
 state-funded counsel
 separate legal representation
 counsel appointed by court
5. Legal Representation for Child Witnesses
in Court

21. Tamara Jordan, M.S.W., LL.B., RSW
Email: jordan@boostforkids.org
URL: www.boostforkids.org
Questions?