THE IMPORTANCE OF WITNESS RELIAB

THE IMPORTANCE OF WITNESS RELIABILITY IN CASES OF CHILD SEXUAL ABUSE

- REFLECTIONS ON THE CHILDREN ACT (1989)

A review of some of the literature.



- Peter Hill



ABSTRACT:


In the opinion of some experts, custom and usage of the guidelines in the Children Act have created an imbalance which was not the intention of the Act. In order to consider where else one might look to further the aspirations of the Act, an assessment of current medical and pathological input is outlined with its attendant problems and an extension of the current advances in psychological input into investigations of child sex abuse are considered.


The Children Act of 1989 was the moment in the history of child abuse when the government attempted to regulate and control the agenda for using experts. Chapter 1 of the Act states as a principle that:


“Its overriding purpose is to promote and protect children’s welfare[i]”


The Act was created with certain aspirations to protect individual children from distress suffered in the process of investigating and prosecuting accusations of child sex abuse. The Act did not introduce new measures to protect children by dissuading potential child sex abusers from committing the crime, nor did it introduce measures to help the detection and prosecution of the crime.


Many will argue that this latter was not the purpose of the Act. The Act concentrates on the welfare and rights of the individual child during the prosecution and trial process, rather than the protection of children in general. However, the protection of all individuals, including children, in our nation is directly linked to the ability of the police to identify criminals and the courts for the punishment of them.


The main concern of the Act was to help local authorities to better control official intervention in cases involving children. The interest of the child was of prime concern. The past twenty years have seen many changes in pursuit of that goal. The main thrust of the changes was to protect children who are suspected of being abused within the family home. They constitute the majority of children who are sexually abused.


The Act also placed restrictions on foster homes, adoption agencies and baby-sitting services in order to further protect children. This was aimed, in part, at those cases of child sex abuse in which the perpetrators were strangers to the child. Consideration of the agencies mentioned suggests that most of such cases involved children under the age of eleven.


Persons who sexually abuse children with whom they have no family or emotional connection are potentially the most dangerous of child sex abusers, for they act indiscriminately and may well become serial sex abusers.


The Act set out a series of duties for the police. It also outlined the duties and responsibilities for advocates who instruct experts and for experts themselves when undertaking assessments within legal proceedings.

However, unlike in the previous major legislation of the eighties, the Police and Criminal Evidence Act (1984), there was no provision in the Children Act to ensure that the duties of the police were in any way adapted or enhanced to better investigate the particular crime of child sex abuse. Some would argue that Children Act tied the hands of the police unnecessarily making it difficult for them to pursue “best evidence”. Indeed the past twenty years has seen an increased interest in how to rehabilitate or treat offenders, rather than on how to inhibit them from committing a first offence. The first child to be sexually abused in the career of a child sex abuser has seen little protection from the Children Act.


The implementation of the Act introduced subjective opinion into police investigations – an element for which the police themselves have been rightly criticised in the past and which they have been at pains to eradicate. In prosecutions, prominence was given to experts who, for all their training, tended to form their opinions on experience rather than the results of a scientific method. The Act approached a serious crime, involving thousands of children every year, from a social and welfare perspective without adequately considering the dangers of doing so.


Other major changes in the eighties in the pursuit of “best evidence” – for example identification suites and ‘SOCO suits’ - might have some effect on cases involving children, but nothing was done to specifically address the crime of child sex abuse – a crime which has its own particular problems in investigation.


Unlike with other crimes, the police are rarely the first people to be involved in a suspected case of child sex abuse. The Police's primary responsibility is to undertake criminal investigations of suspected or actual crime. However, in child sex abuse cases they must coordinate their work with the local authority social care workers. The Act demands that there be “parallel process”.



The central office for such operations is the Protecting Vulnerable Persons Unit (PVPU). All cases of alleged or actual child abuse must be referred to the PVPU. Any criminal investigation must be undertaken in the best interests of the child. It is largely the local authority officials (under sect 47 of the Act) who decide whether any action should be taken to safeguard and promote the welfare of the child. The police role is to undertake all associated investigative activities. However, the police team must keep social care officers informed of what they are doing - such as conducting interviews, visiting crime scenes and arranging medical examinations.



The police must agree with the other agencies on the nature of the investigation being undertaken, including the timing and methods of evidence gathering which are likely to affect the enquiry. Nowhere else in the criminal justice system are police officers so circumscribed by persons who are not professional investigators of crime.



On the other hand, members of the PVUP can be very helpful to the police investigation. When the crime appears to have been committed within a family unit, social workers can be of immense use in such investigations. In most cases they know the family members, their temperaments, their histories and their trustworthiness. However, with “stranger abuse” these restrictions can get in the way. And yet these cases constitute almost a fifth of all cases of child sex abuse[ii].



A study at Huddersfield University in 2008 concluded[iii]:



“Incidents of attempted and completed stranger Child Sexual Abuse and abduction are distinct from Child Sexual Abuse and abduction by known persons; (they) go against stereotypes, are complex, and give rise to a number of key issues that may have implications for prevention and intervention.”



One can readily appreciate this. ‘Internal family abuse’ is different to ‘stranger abuse.’ Sex abuse by a stranger does not necessarily mean a complete stranger. It may well be located in a foster home, a care home, or baby-sitting agencies – each of which is involved in one way or another with the social services of the local authority.



The different types of sex abuse require different methods of detection. Nevertheless, police officers must seek advice from the PVPU in all cases – from persons who may not understand the different disciplines of each type of case. All actions are limited by the usual concerns for the child..



A unified approach is the norm. After all, almost all child sex abuse cases begin with the family. The child shows symptoms, or speaks about an assault in some fashion. The parents, particularly the mothers, are usually the first to learn of this – or are present when social workers broach the subject with the child. Between 70 and 80 per cent of such incidents of abuse happen within the family group, with the involvement of either close or more distant relatives. It follows that the police look for the possibilities of this from the start of the investigation. Their actions can be divisive and distressing to the child. They may not appreciate the psychological difficulties of the case. It is right that they should consult on the family history and listen to advice form social workers about the history of the family involved.



But once the investigation goes beyond the family, the advice of social workers may not be so useful – yet the same consultation takes place.



There is also an important role for the child psychologist. Police officers are not trained psychologists. There are aspects of children they may not be readily aware of. For example, children often see themselves an integral part of the physical body of the family. What is normal in the family, is normal to the child. As Jessica Yakeley puts it:



“The child becomes increasingly aware of his own mind through his growing awareness of the mind of his mother through her capacity to demonstrate to him what she thinks of him as a separate person with his own distinct intentions, beliefs and desires.[iv]”



Having psychologists present in the PVPU who understand this can be of immense help to the police in such cases.



The new interface between the work of child welfare specialists and the law which was created by the Children Act, with the introduction of the PVUPs, has generally been praised because of the emphasis on the interdisciplinary nature of proceedings. But the perspectives of the various experts involved in the process were not fully considered.



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The Children Act began to take effect in 1991. Within a decade, some of those working with it began to have their doubts about how it was working.



Dr. Mary Pillai, the Forensic Medical Examiner for the Gloucestershire Constabulary and a leading figure in the field of sexual abuse was prompted to conduct a survey. She considered 24 cases in which innocent persons had been investigated of child sex abuse. In 2002 she wrote:



“Children Act guidance outlines the means by which professionals are supposed to work with uncertainty. The guidance provides a basis for making judgment within the context of available information. However, what emerged with these families was a process far removed from the methods of “family support” The relevant legislation lays expectation that proceedings should be triggered by one or more specific events. In none of these cases was there a single event, or evidence of an injury or abuse having actually occurred[v].”



Dr. Pillai’s views were controversial. They pointed a finger at child psychiatrists - who had been given greater prominence in the process of dealing with child sex abuse cases by the Children Act. Outlining three case studies she had undertaken, Dr. Pillai noted that in one case a 15 year old had been influenced by a faith healer,



“the psychiatrist suggested to her that she was confused and distressed because she had been sexually abused.”



The girl later “remembered” being sexually assaulted. Her family refuted all her claims.



In another case, an adolescent suffering from anorexia visited a doctor who practised, coincidentally, “recovered memory syndrome”. After a later failed suicide attempt, she was persuaded to “confront” her mother with the news that she had been sexually abused. Once again the allegation was proved to be false.



Commenting in general on the 25 cases in her study, Dr. Pillai wrote:



“ Claims of innocence were taken as evidence of guilt and information was interpreted in a manner that fitted only this presumption, while factual evidence to the contrary was ignored.”



“The lack of safeguards in the system leaves scope for widespread false labeling of people”



“Costly prosecutions failed for lack of evidence. But Mental Health and social work agencies continued to approach the family as guilty and in denial.[vi]”



In other words, what was sufficient proof for the civil agencies was not sufficient for the courts.



In particular, Dr. Pillai wrote:



“The key is taking allegations seriously and in a manner that ensures they are investigated with an open mind[vii]”



The phrase ‘with an open mind’ is a reference to the Children Act[viii]. Why on earth, we might wonder, might anyone suggest that investigations into serious crime - such as the sexual abuse of a child - might be investigated with anything other than an open mind – particularly when the contrary is against the law? The suggestion is, of course, that Dr. Pillai had observed ‘closed minds’ in such investigations. This is not the way to produce “best evidence”.



If an imbalance in investigations has come about, the cause no doubt lies in the dynamics of the inter-institutional arrangement detailed in the Children Act. Dr. Pillai’s reference to “open mind” suggests that she believes such actions as she deplores work against the spirit of the Act. Considering her own professional links with the police, her suggestion seems to be that the prosecuting authorities are unduly constrained by the interpretation of the Act demanded by the other professionals involved in the investigation of a crime.



The police are only too aware of the dangers of unprofessional investigations. If something goes wrong in a criminal case they usually get the blame. So Dr. Pillai outlined the dangers of the investigations she studied in which, she perhaps thought, there had been ‘closed minds’.



“Criminal prosecutions were mounted against five accused professional fathers which resulted in them being suspended from work for a protracted interval. Although all the prosecutions failed for lack of evidence this took between one and two years, and consequently two men have been unable to return to work at all. The costs incurred by the families were in the range of £10,000 to £100,000.[ix]”



Some mistakes take longer than two or three years to rectify. Figures from the Criminal Case Review Commission over the past 5 years show that there have been 11 cases involving child sex abuse where the Commission considered the evidence of innocence convincing enough to refer the case back to the Court of Appeal.



Over the same period the Court of Appeal quashed the convictions of 8 persons who had been convicted of child sex abuse[x]. Not only does such a decision mean that the lives of 8 persons have been ruined, but it may also mean that eight child sex abusers have got away with the crime and avoided any treatment or rehabilitation. From the CCRC’s figures, we may deduce that such, apparently, happens about once every six months.



The Commission does not list the dates of the original convictions in these cases, but it can take anything up to five years or more to get an unfair conviction before the court of appeal. That means perhaps up to five years of agony for the innocent. It means even more for the victims: they must initially suffer the publicity involved in miscarriage of justice cases – and, later when a conviction is quashed, the thought that the person who abused them is free, and perhaps ready to abuse again.



The situation might be worse. The official figures do not include the many cases where the Crown Prosecution Service did not consider there was enough evidence to bring the case to trial; yet the effect on the suspects and the children involved in such unresolved cases can be traumatic.



The notorious Shieldfield nursery case of 1994 demonstrated some of the problems. Beginning before the Children Act – and ending after it – it is a classic case of the dangers of having a variety of different and sometimes competing, bodies involved – as well as the public.



Two nursery workers in Newcastle were acquitted in 2002[xi], at the direction of a High Court judge, of 11 counts of sexual abuse and rape against children in their care. Parents and others reacted furiously, shouting “hang them!” and parading with banners saying, “We believe the kids!”



Horrific sexual abuse was detailed in court. A “powerful” video interview with a child who was supposedly raped by one of the workers was presented. During the investigation there were references to a wide-spread paedophile ring.

The children at Shieldfield and their parents had indeed suffered greatly, but not at the hands of the two accused of the crime. They, the judge stated, had done nothing wrong whatsoever. Impossible and implausible allegations had come to be believed, disseminated and acted upon.





Mr. Justice Eady said:

The interviews that I examined in the present case are among the worst that I have ever encountered. In this case, extremely young and bewildered children were brought in and interrogated (sometimes for over an hour) by one, by two and even by three interviewers. These interviewers used the full array of suggestive techniques to elicit allegations of abuse.

When the children denied that they had been abused, they were bombarded with more suggestions, they were scolded, they were threatened and they were bribed. And when some children whimpered, moaned or begged the interviewers to end the questioning, the interviewers continued. In sum, the interviews were abusive and the children were victims of the interviewers”.


The judge did not specify who he thought had so abused the children, and there was no PVUP in existence at the time of the original investigation. He nevertheless hinted at a totally biased, unprofessional, approach to the investigation which appeared to have been influenced by the public outcry that the case had raised.



The system set up by the Children Act has not completely eradicated this problem. No single profession involved in an investigation of child sex abuse is in charge – and those involved sometimes have competing goals. One reason for this may be that the various individuals involved are not cooperating with each other enough. Another may be that they are simply not professional enough. Committees almost always produce compromise – and compromise in a criminal investigation can lead to undue outside influence. “Best evidence” can be compromised in the process.



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A leading critic of the system, Dr. Raine Roberts, a consultant forensic physician at St. Mary’s Hospital Manchester, has pointed to a different problem in the investigation of child sex abuse:



“It is my view that miscarriages of justice, resulting in guilty persons going free and (one hopes much less commonly) innocent men being convicted or denied access to their children, are sometimes contributed to by the manner in which medical evidence is presented to the court.[xii]”



Dr. Robert’s criticism , writing, as she was, of the evidence given by members of her own profession, shows that she is only too aware of the problems that lie behind all medical evidence given in child sex abuse trials.



Doctors have a particular dilemma. Their work must not only satisfy the requirements of the social workers and the police, but they must consider whether the actions being undertaken might affect the health of the child, either physically or mentally.



This can give the police problems, for, as with the others involved in a case of child sex abuse, they have a dual obligation. They must strike a balance between the legal requirements of the Children Act and their duties of competence to their own profession. And there can be conflict.



Consider the hypothesis that a doctor states that the mental stability or physical welfare of a child is at stake if an investigation goes forward. Would the police be right to stop the investigation against a suspect even if the evidence of guilt is overwhelming? How would the detectives explain this to their Chief Constable or the Crown Prosecution Service?

What if the suspect then commits the same crime again? The police have a duty to protect all children from sex abusers, as well as a duty to protect the individual child.



Medical experts do not always come to an investigation of child sex abuse at the start of the case. If they are called in when the police have already decided that there is sufficient evidence of a crime having been committed, they may find themselves being asked merely to confirm the opinion that social workers and the police have already formed. This does not always lead to unbiased opinions and is one reason why Dr. Roberts is dissatisfied with the evidence which comes to court. But there are other reasons too which sometimes become the source of bitter quarrels.



The essential differences between the various professions and institutions covered by the Children Act came under scrutiny in 1998. There was some controversy in the professions dealing with child sex abuse when Professor Peter Fonagy, the chief executive of the Anna Freud Centre wrote:



“There is something akin to a religious war raging between those who wish to protect victims of childhood abuse and those whose declared allegiance is to individuals claiming to be falsely accused. Surely both groups deserve our full sympathy. Surely our concern for the one must not obstruct ( or obliterate) our concern for the other[xiii]”.



When the head of an institution with such an unrivalled reputation for the psychoanalytic study and treatment of children as the Anna Freud Centre makes such a startling comment on the current situation we should take notice.



The “religious war” referred to by Professor Fonagy involves, in general terms, social workers, police, psychologists, and lawyers. Even the courts sometimes feel they are being unduly restricted, with mis-informed or even prejudicial evidence resulting from the arrangements for investigating and prosecuting child sex abuse cases – and the source of the trouble is often the medical evidence.



The sense of cooperation which is engendered within the Protecting Vulnerable Persons Units – two elements of which are composed of persons who are in some way subject to democratic scrutiny - can produce compromises which affect the outcome of a prosecution.

The protection of the child couched in the Act can prevent scientific research which might improve investigations of child sex abuse; it can also produce a kind of prejudice.



In the United States, which has a jury system similar to ours, a noted psychologist Neil Vidmar has studied the types of prejudice that that can affect the trial process and negate the impact of “best evidence”.[xiv] He terms one such prejudice as “conformity prejudice”. It occurs when those concerned are aware of, and affected by, the expectations of the community outside the jury room.



Few areas of criminality can give rise to such anger and a desire, or expectation, of quick results than the sexual abuse of children. It follows that conformity prejudice may arise within the investigative team in child abuse cases when there has been mass publicity, particularly when there has been mass public outrage at the crime committed. Such prejudice should never enter any criminal investigation – yet it was clearly present in the Shieldhills case where the public effectively “bayed for blood”. And it can affect the role of the medical expert in the investigation.



Medical experts involved in child sex abuse cases know very well what the courts require of them in terms of “best evidence”. The legal requirements have been outlined in one form or another in many articles and books.



The courts want:



1. An expert’s opinion to be based on scientifically reliable data and sound methodology.

2. An expert’s opinion to be supported by sound reasoning.

3. The scientific data being relied on in the case before the court must apply to the case.





However, it is not surprising if things are not as clear and simple as the legal authorities would wish, when there is a tug of war – or even “something akin to a religious war” - between the various professions involved in the investigation and prosecution of a case.



In the United States, the court’s definition of “best evidence” for scientific and medical evidence has been expressed more simply. The “Daubert standard” was introduced into Federal Rules of evidence in the early nineties. It stated that the law requires that expert evidence must have a “valid scientific connection to admissibility.”



Similar standards of admissibility of evidence has been introduced in England. A decade ago, Lord Woolf introduced such a standard into civil law – and the criminal law has followed to some extent.



The problem for those working with the Children Act is that the law requires the experts in all areas of child sex abuse to work together in the production of best evidence for a trial. The Crown Prosecution Service has issued guidelines on how to achieve best evidence. It devotes a large section to how to deal with children[xv]. However, the interpretation of the guidelines by a lawyer is not necessarily the interpretation preferred by a medical or psychology expert or a social worker. And the actual investigators – the police – can come last in this queue.



The ‘doctor’s dilemma’ has been mentioned above, but medical experts have other problems in dealing with child sex abuse. They have to deal with human bodies that are growing.



Physical injuries to adults leave trauma and traces that we are all familiar with, such as bruises and scars. But with children – and particularly with very young children – the human body reacts differently to the body of an adult. In addition to this, children do not grow at a uniform speed. So what one doctor sees in the pathology of one supposed victim of sex abuse may not be the same as what another doctor sees in another case. Bitter arguments can result when doctors are subjected to pressure from their fellow investigators, or from “conformity prejudice”.



An example of just how bitter such disputes can become is the notorious baby shaking syndrome (SBS) appeal of 2005. When a reputable neuropathologist, Dr. Jennian Geddes, the head of a team at the Royal London Hospital in London, suggested - first in an article and later in court - that in some cases shaking a baby might not be the sole cause of certain injuries, the response was as much emotional as reasoned.



A letter to the BMJ regarding the offending article - signed by 106 doctors - stated that the original writers[xvi]



“display a worrisome and persistent bias against the diagnosis of child abuse in general[xvii]”



This attack, effectively claiming a nonchalance by the original writers to the cause of children, displayed a protective attitude towards ‘accepted’ investigative methods. Why, we might ask, were the doctors being so defensive of their ‘accepted’ diagnoses?



Jennian Geddes was so affected by the abuse heaped on her that she left the profession and is now working for a feminist group. Her current choice of profession may be of some significance.



In a similar case in 2000, neuropathologist Dr. Waney Squier appeared for the prosecution. Her evidence followed the ‘accepted ’ diagnosis of Shaken Baby Syndrome. She later reconsidered her evidence - and at the appeal of the case in 2005 she appeared for the appellant giving evidence on SBSsimilar to that of Jennian Geddes.The conviction was quashed.



When such an eminent scientist says that recent scientific developments show that, in the past, she and others have been wrong about SBS, she should be listened to. Instead Dr Squier was viciously attacked by doctors, lawyers and police officers who do not like her views. She was even accused of being a supporter of child abusers[xviii].



After the judgment there was much discussion of the findings of the Court of Appeal. The matter was left largely with the view that neither side was right – and that everything is possible. This was not a satisfactory outcome of the debate.



The Court of Appeal accused the doctors in the case of ignoring what the social workers on the case had told them.



“The clinical history is perhaps the most important clinical tool available to the clinician and to reject the carer's version of events in favour of another requires the highest possible level of medical evidence. After all, the Doctor is effectively accusing the carer of lying[xix].”



This pronouncement appears to suggest that doctors might, on occasion, approach cases of child abuse not in an objective manner as they should normally do - but rather that they should examine the child in order to substantiate the version of events put forward by the social worker. Such is not proper forensic and scientific method and is surely not what the judge intended.



The simple truth behind all of this is that, despite all efforts by the police, psychologists and social services over the past forty years, the field of forensic pathology evaluation in child abuse cases does not enjoy consensus on what constitutes best practice. Or, indeed, best evidence.



An argument with similarities to the baby shaking case is currently being waged in the pages of the journal of the British Academy of Forensic Sciences, “Medicine and the Law”. Pathologists and gynaecologists in both Britain and the United States are contributing. It centres on one of the foundations of any investigation into a suspected child abuse – whether there are any physical signs on the supposed victim that an assault has taken place.



The basic question in the dispute is whether the physical effects of penetration in young children, particularly girls, are observable and consistent. Similar arguments may be applied to cases involving boys, but such are not explored here.



Some pathologists have observed certain features which they believe constitute evidence of penetration. But others claim that such apparent indications are quite normal in some children. The argument centres on the question “what is normal”?



The nature of the work that would need to be done to establish some scientific basis for such observations is a problem. It is hampered by laws and customs concerning the protection of children - and their sensitivities. A kind of ‘conformity prejudice’ can take over the argument, the needs of the individual case superseding the needs of medical research.



The protection of the child is paramount, so sensitivities may sometimes take precedent over science. Children are particularly sensitive to having a stranger poking around in their genitalia and taking photographs. The needs of the forensic pathologist may well come last. The “Daubert standard” – the “valid scientific connection to admissibility” can become strained to becoming more a matter of opinion than fact. The ‘sound reasoning’ required by the court may not be as sound as the court believes. This not because of a lack of diligence within the profession. In fact there has been much work done to try to establish accurate data on “what us normal” in the pathology of children.



Two decades ago three paediatricians in Fresno California studied three young children who had suffered sexual assault[xx]. The subjects, who were 4 months, 4 years 5 months, and 9 years of age, were followed up for periods ranging from 14 months to 3 years. They were examined using a colposcope[xxi] which recorded their injuries In these cases the signs of the acute damage to the body disappeared rapidly, and the wounds healed without complications.



Since many cases of alleged sexual assault involving penetration do not come to light until weeks or even months after the supposed event, one might think that this evidence might well establish a general base line for future examination of children in such circumstances: far from it.



Later articles pointed out that the team in Fresno had noted that some areas of the body “healed with minimal scar tissue and left only the slightest evidence of the trauma”. So, it seemed, there was some trace evidence – ‘minimal scar tissue’.



Dr. Astrid Heger an expert in the field of child abuse and sexual assault, observed that when painful penetration had occurred



“healing disruption can be found.”

[xxii]



However, Joyce A Adams, professor of pediatrics at the University of California, La Jolla, stated



“Signs of recent or healed injury to the genitalia in prepubertal girls describing penile-vaginal contact are uncommon[xxiii]”



In 2005 Mary Pillai, summing up the situation in England, had a despairing view:



“A range of anogenital findings once presumed to be diagnostic of penetration are now realised to be non-specific. Two professional bodies endorsed photodocumentation… However, case law demonstrated that reliance on images can be flawed[xxiv].”



Adding to the debate, consultant forensic physician Dr. Raine Roberts, considered 5 cases of which she had personal knowledge[xxv]. Her comments on evidence given by some of her professional colleagues were scathing.



“In a rape case a medical practitioner claimed in the witness box that the injury to a girl’s hymen could only have been caused by a penis and not by a finger, because ‘the finger does not have much power’. This opinion must have caused the jury some amusement; many would have realised that the doctor was talking nonsense.”



In another case involving a teenage girl, the doctor appearing for the prosecution noted a painful tear or macerated skin loss in the hymen and stated that this could not have been the consequence of normal sex. What the doctor did not disclose to the court was she had also noted “itchiness and a vaginal discharge”. The defence had the wit to demand a complete clinical record of the supposed victim; the girl had had numerous treatments for thrush and had been treated for it shortly before the examination at issue in court. This treatment could have caused the injury.



In another case mentioned by Dr. Roberts, there was a trial within a trial. The issue was whether a pediatrician could say that, in giving his evidence, he took into account the demeanour of the child and his own assessment as to whether she appeared to be telling the truth, as well as his clinical findings. The judge ruled that this was admissible.



It cannot surely be right that a professional in one field be allowed to give evidence on an aspect of a case which is clearly within the area of expertise of a different discipline. But such is the consequence of everyone being a part of a team under the Children Act.



Dr Roberts sees the dangers of ‘conformity prejudice’ in this:



“there is a danger of doctors, in an honest wish to assist their ‘patient’, straying into subjective territory in search of evidence to support the case ( and occasionally withholding evidence which undermines the case).”



The case law for the introduction of medical evidence in child sex abuse cases rests on the judgement of Mr. Justice Holman in 2003. It is somewhat damning:



“Given what appears to be a lack of evidence based on medicine in this area, I wonder whether any opinion should be admissible in a court of law, when the consequences (in both civil and criminal proceedings) can be so grave.[xxvi]”



This judgement led the Solicitors Journal to issue the following warning to solicitors:[xxvii]



It is now understood that, in the prepubertal child, unless there are signs of acute trauma, sexual assault or abuse can rarely be diagnosed from examination findings alone. Herein lies the problem, as doctors, especially if inexperienced, may misinterpret normal variants as evidence of trauma and attach greater weight to the significance of a finding than it deserves. It is essential for any doctor working in this area to be familiar with the extensive literature on the subject and to recognise that our knowledge and approach to sexual assault and abuse is not static but rather is continuously evolving over time. What was accepted dogma, ten, five or even two years ago, may subsequently be stood on its head as data in this field accumulates. Detailed knowledge of the anatomy and physiology of the anogenital region and the changes which occur from infancy through childhood to puberty are also essential.”



Justice Nicolas Wall in the family division of the High Court, though not speaking directly to child sex abuse, wrote the advice [xxviii]:



“A doctor who ventures an opinion on inadequate material is taking a substantial risk that his or her opinion may be unsound.”



He advocated that doctors who have had prior clinical experience of the child involved in a case should contribute reports. He concluded:



“Those who give medical evidence to courts have a duty to ensure that the foundation of that evidence is sound. Unfortunately doctors are occasionally drawn into error because they base their testimony on medical belief rather than scientific evidence. There is also the temptation, particularly in the very adversarial area of the criminal courts, to be pushed into certainties where there are none.”



And, perhaps unnecessarily, but such was the nature of his fears, he added:



“conclusions should be clear, logically argued with the reasoning for them fully explained.[xxix]”



This divergence of expert opinion on what is an essential element in the most serious cases of child sexual abuse may be fine for some lawyers who love nothing more than a good argument in a trial – but it does little good for the achievement of best evidence, nor for the balance which the Children Act hoped to establish. It does not aid the search for justice. And above all, it can harm the children involved.



Dr. Mary Pillai, surveying the general situation, commented:



“Given this level of uncertainty and the high levels of emotion and prejudice attaching to allegations of child sex abuse, there is a strong case for a moral injunction directing examiners to refrain from giving evidence supportive of possible sexual abuse unless clearly indicated.”



“Clear indications” are not easy to find. Yet there is often pressure on doctors to find them. From her own personal experience as a gynecologist and as Forensic Medical Examiner for the Gloucestershire Constabulary, Pillai wrote:



“ Forensic assessment requires an impartial open mind, open to the possibility that allegations may, or may not be true The doctor involved in forensic assessment or therapy only ever hears one side of the story.

They only see “the victim” and they often have no means of differentiating fact from hearsay, speculation or inexpert opinion
[xxx].”



Dr. Roberts advocates more discussion between the two sides in the adversarial system:



“ all the evidence should have been evaluated and possible alternatives interpretations considered long before the indictment and the hearing.



The current knowledge base for indications of child sex abuse is contained in a report by the Royal College of Physicians[xxxi]. It is widely quoted by doctors evaluating children for suspected sexual abuse. It is an attempt to establish standards of diagnosis in an effort to make evidence before the courts more firm. The revisions over the years indicate that this is effectively a moving target.



What lies at the heart of this argument is that the introduction of unreliable scientific evidence undermines the integrity of the fact-finding process. It increases the chance that the court will arrive at an unjust verdict. Of particular importance with doctors is the ‘aura of infallibility’ which can be seen in the demeanor of some. This is of particular importance when the evidence is founded in inadequate scientific method and when the current base of knowledge has its critics.



In 2002 the Royal College of Paediatrics and Child Health and the Association of Police Surgeons jointly issued guidelines on ‘Paediatric Forensic Examinations in Relation to Possible Child Sexual Abuse’[xxxii].

This is an extremely worthy document with admirable motives. Its main conclusions are:



“1. It is essential that high quality photo-documentation be obtained during a paediatric forensic examination. If this is not obtained the practitioner must document in his/her notes the reasons for this;

2. A single doctor can conduct a paediatric forensic examination provided he/she has all the necessary skills;

3. The examining doctor must ensure that they are familiar with evidence-based guidelines regarding the interpretation of the signs.”



However, standards and methods are not touched upon in the guidelines. Ultimately the recommendations leave the competency – and even ingenuity - of the investigators to the various professions involved.



The guidelines do indeed cover some of the pitfalls –mentioning the reluctance of children to be examined, the sensitivities of the parents or carers. It states that the background of any relevant medical, family or social history must be undertaken.



In particular, it stresses – with an eye on the Children Act - that it is every examiner’s responsibility to ensure that there is a therapeutic and supportive environment for the child and carer(s) during the medical examination – adding that it must be remembered that the health needs of the child are paramount.



As for skills in the investigators, it states that they should have:



“1. An ability to communicate comfortably with children and their carers about sensitive issues.

2 An understanding of, and sensitivity to, the child’s developmental, social and emotional needs and his or her intellectual level.

3 An understanding of consent and confidentiality as they relate to children and young people”



This theme of the protection of the child throughout the investigation may even allow non-medical persons to intervene. For the guidelines state that :



“Support for the child and carers must be available throughout the paediatric forensic examination.”



Quite in what form this support should be given is not detailed.



The dangers of this situation are clear. In 2003, Sally Clark had her conviction for child murder overturned. This was after crucial flaws were found in the evidence of the main prosecution medical expert, Sir Roy Meadows. Three other women were cleared of the same offence, convicted on the same flawed evidence. The cause of this disaster was that the medical expert’s assessment of the statistical significant of the results of his observations was challenged by professional statisticians.



The outcome ruined Professor Meadows. His ‘crime’ was to stray outside his area of expertise into statistics and to invent “Meadow’s Law” which stated:



“One sudden infant death is a tragedy, two is suspicious and three is murder[xxxiii]”



This dictum, widely adopted by social workers and child protection agencies has no scientific basis; and there is no single authoritative body in existence which might say so. One wonders how much ‘conformity prejudice’ might have been behind the professor’s mistake. Although these four cases were all of child murder, the same problems occur with child sex abuse cases – and for the same reasons.



Some medical experts are currently searching for a means of standardizing physical examination of children to detect signs of sexual abuse.



Dr. Roberts in Manchester, believes that the professions of medicine and the law must decide whether physical findings in child abuse should stand alone or be part of a “jigsaw” of evidence. The former might be construed by some as contrary to the guidelines of the Children Act. The latter might contribute circumstantial evidence – exactly what Professor Meadows fell foul of. If this is the choice to be made, it is a difficult one.



Raine Roberts also recommends however that the Royal Society of Medicine should create a single ‘expert-witness body’ for medical witnesses out of the proliferation of professional bodies for expert witnesses which currently exist. This central body would, hopefully, create a database of reliable articles and a consensus on current thinking in all areas where medical expertise is required. Perhaps more realistically, such a centralisation of expertise could set standards of method and establish an accreditation system. For its part, the legal profession could demand that only experts accredited by this could give evidence in courts. This might, hopefully, provide “best evidence” at a level far beyond present standards.



Current hopes for firmer medical evidence lie in a collection of photographs from cases which is being put together by the Royal College of Physicians and the Royal Society of Medicine. They hope that they will eventually produce a photographic database of child sex abuse injuries on which to base reliable opinions. However, at the moment, unless there can be a standardised research approach to the question of “what is normal”, the various experts seem unlikely to agree.



In 2005 the House of Commons Select Committee on Science and Technology issued its report entitled ‘Forensic Science on Trial[xxxiv]’. Whilst this was largely concerned with areas of forensic science which are currently of little use in child sex abuse cases, it nevertheless made explicit reference to the Daubert criteria in a fashion that could be applied to the pathology of child sex abuse cases:



“The absence of an agreed protocol for the validation of scientific techniques prior to their being admitted in court is entirely unsatisfactory. Judges are not well-placed to determine scientific validity without input from scientists. We recommend that one of the first tasks of the Forensic Science Advisory Council be to develop a “gatekeeping” test for expert evidence. This should be done in partnership with judges, scientists and other key players in the criminal justice system, and should build on the U.S. Daubert test.”



The committee also wrote:



“Expert witnesses have been penalised far more publicly than the judges and lawyers in cases where expert evidence has been called into question. These cases represent a systems failure.”



The system introduced by the Children Act can easily produce the very kind of failures that concerned the Select Committee. ‘Conformity prejudice’ is perhaps the main problem when persons from different institutions with different allegiance and different disciplines are asked to agree on how to proceed in a case of suspect child sex abuse.



                                             --00—



The present situation with physical trace evidence in child sex abuse cases is so unreliable, that Dr. Raine suggests the courts may prefer to look elsewhere for reliable evidence:



“It is important for judges and juries to understand this fact and to rely on the clarity, consistency and detail of disclosures given by children about their experience as the most important evidence that sexual abuse has occurred.[xxxv]”



Child psychologists may accuse Raine Roberts of simply attempting to dump the problem on their desks - because forensic pathologists have so far failed to establish an universal set of agreed signs of sex abuse in children. But she is simply pointing to the essential fact of all child sex abuse cases – the foundation of the evidence in almost every case is the testimony of the child.



However, the reliability of the evidence of children is another area of dispute in the professions- particularly between the psychologists and the prosecuting authorities.



Dr Arnon Bentovim, the noted psychiatrist and Chair of the Lucy Faithfull Foundation recounted a small anecdote which illustrates frankly the animosity between those who wish to protect the child and those who wish to prosecute the perpetrator:



“At a recent meeting a distinguished barrister repeated in conversation the often-heard remark – “Children are liars aren’t they?” This was said forcefully, with a sense of anger and blame. Our response was a retort, with equal vehemence, that adults were far more competent and skilful liars than children ever could be. The barrister’s response was to state that the effect of children’s lies could be absolutely devastating to those against whom untruths were levelled. Male teachers had lost their jobs and lives ruined as a result. Although we felt inclined to say that adults’ lies had led to the destruction of civilisations, we hesitated to enter the dialectic.



Instead, we said that perhaps is was a question of who was assessing the child’s statement in terms of judging whether statements were true or false. This led to an interesting discussion about the problems of current approaches to police investigation.”



Bentovim’s comment on this was extraordinary:



“Because it is now accepted that children do speak the truth, in an allegation of abuse this leads to a serious investigation[xxxvi].”



This kind of remark is not uncommon. A number of cases in America during the 80’s and 90’s raised fundamental concerns about the reliability of children’s statements. In a series of cases young children claimed that they had been sexually abused when there was little medical evidence to substantiate the accusations. Bruck and Ceci[xxxvii]: wrote



“Prosecutors argued that children do not lie about sexual abuse, that the child witnesses reports were authentic, and that their bizarre and chilling accounts of events – which were well beyond the realm of most preschoolers’ knowledge and

experience – substantiated the fact that the children had actually been brutally victimised. The defence tried to argue that the children’s reports were the product of repeated suggestive interviews by parents, law enforcement officials, social workers and therapists. However, because there was no direct scientific evidence to support the defence’s arguments, and in the light of the common belief at that time that children do not lie about sexual abuse, many of these cases eventuated in convictions.”




We are now some two decades on from Bentovim’s comment – and much work has been done on whether or not children, particularly young children, always tell the truth; but the argument reported by Bruck and Ceci is still a common one.



There have been diverse responses. Some of the experts working in the area of child sex abuse have focussed generally on the main question of how to determine if a child’s story is true. Others have preferred to use investigative techniques that are less likely to produce false support for untrue statements, particularly by the use of leading questions. Another group has concentrated on the internal dynamics which are involved in a child’s production of false testimony.



And then of course here, as in other areas of investigation, there is the ‘conformity prejudice’. The moral imperative in society to protect children is just as strong in psychologists as elsewhere. It can override other elements of an investigation. If it a simple question of ‘believe or not believe’, it is often safer to choose ‘believe’.



There may be an even deeper Freudian cause for such prejudice. Peter Fonagy, the Freud Memorial Professor of Psychoanalysis at UCL wrote:



“The objectivity of even the most thoughtful of commentators is clouded by the fervour generated by the issue of recovered memory of childhood sexual abuse and the excitement that is inevitably activated when the gratification of unconscious infantile incestuous sexual fantasies is contemplated.
[xxxviii]”



The moral intention behind cases has led, in America at least, to the relaxation of the competency requirement for child witnesses. The competency of evidence is a basic requirement of the English adversarial system of judicial process[xxxix]. We dilute it at our peril.



Many of the decisions taken by psychologists, no matter how supported. they may be by psychological techniques, are often seen as “subjective” – little more than opinions based on a professional hunch. Psychologists need to interview children who are supposed victims. But then, everyone in the investigative group wants to interview the supposed victim. And each wants to conduct the interview in their own way.



The psychologist may come last in the queue. Since the enactment of the Children Act there is often strong pressure to avoid repeated questioning of the child. Not surprisingly, it is invariably the paramount requirement of the protection of the child which wins any argument.



The testimony of the child is, of course, the foundation stone of the entire investigation. If it falls, so does the entire case. A firm foundation usually leads to a successful prosecution. It is not surprising that in most cases the police and the prosecuting lawyers consider the child’s testimony to be of paramount importance in obtaining a guilty verdict and thereby, hopefully, saving other children from similar horrific experiences.



However, off the record remarks by some professionals point to a scepticism concerning the evidence of children. Remarks such as “ if the child is under five, run a mile” and “cross-examining a four year witness” was the “Everest of cross-examination[xl]” suggest a deep distrust of evidence that young children give.



People of all ages are deemed competent to give evidence as long as they can understand the questions being asked and give understandable answers[xli]. A child as young as the age of four has testified in our courts[xlii]. The Court of Appeal upheld a conviction of rape which was based on the evidence of a child aged three who described events which took place when she was two[xliii].



The accepted criteria for determining the child’s fitness to testify in court[xliv] are:



1. The capacity to perceive facts accurately (the ability to observe or receive accurate impressions of the occurrence)

2. The capacity to recollect and recall (memory sufficient to retain an independent recollection of the observation.)

3. The capacity to understand the oath (the ability to tell the truth from falsehood and to understand the consequences of not telling the truth).

4. The capacity to communicate based on personal knowledge of the facts (ability to communicate the memory of the observation and to understand simple questions about the occurrence).



Research done in the United States indicates that discovering whether young child witnesses meet these criteria is not easy. A number of studies[xlv] have revealed that:



1. Children of up to 7 years of age have difficulty defining “truth” and “lie” and explaining the difference between the two terms.

2. Children do not have a clear conception of lying relative to adult constructs.

3. Children narrow their definition of lies between the ages 5 and 7,, dropping “swearing” or “naughty words” from their definition of lies.

4. A child’s definition of a truthful statement might centre on whether or not it results in punishment.

5. At approximately the age of 7 children begin to consider the intention of the speaker in their definition of what constitutes a lie.



These are general observations – for all children develop at different speeds.



We might add to this list from our own experience that:



Children are vulnerable to suggestion. They are vulnerable to manipulation in acrimonious disputes. Children may well construct narratives in line with what they believe authority figures wish to hear.



There have been many studies on the vulnerabilities of children in giving evidence. Bruck and Ceci reported many of the problems[xlvi].



“when children are repeatedly and suggestively interviewed about false events, assent rates rise with each interview.”



“children’s responses to open-ended questions are more accurate than their responses to specific questions.”



“there is increased risk of inaccurate reports when young children are repeatedly asked the same specific question.”



“Forced choice” questions (e.g. ‘Was it black or white?’) also compromise the children’s reports - because children commonly do not provide ‘I don’t know’ responses”



“Children may give incorrect information to misleading questions about events for which they have no memory - if the interviewer creates an emotional tone of accusation.”



Having explored the many ways in which evidence taken from a child may prove to be unreliable, Bruck and Ceci nevertheless conclude with an encouraging comment:



“Notwithstanding the above conclusion, it is clear that children – even pre-schoolers – are capable of accurately recalling much that is forensically relevant, For example, in many of our own studies, children in the control group conditions recalled events flawlessly…. Numerous other studies also highlight the strengths of children’s memories”



In the UK, Ruth Marchant of the independent expert interviewers organisation, Triangle,[xlvii] has written an authoritative paper on how young children should be approached during initial interviews[xlviii]. She points out that:



“Very young children are … particularly vulnerable to unsafe interview strategies and leading or complex questions, which makes it challenging to professionals to safely elicit and test their evidence.”



In spite of this, she asserts that in her experience children as young as two years old can give reliable and accurate evidence about their experiences - if they are properly interviewed. She then explores at length the best techniques for conducting such interviews.



Her first concern is the general environment that the child is placed in:



1. The whole process of the interview must be adjusted to the child.

2. The environment in which the interview takes place must be child-friendly.

3. The interview must be familiar to the child and know that the parent or accompanying adult is close, if not present.

4. The child must set the pace of the interview and know that there will be breaks in it.



To achieve this, the Triangle initiative has built a specially-designed interview area. It has play areas, living room areas and interview areas – all covered by cameras.



Ruth Marchant also has specific very practical and sensible advice on achieving “best evidence” which may surprise some:



1. Present tense questioning can be very alarming to young children.

2. Young children rely much more on gesture, facial expression and demonstration than older children. Unspoken communication must be recorded and noted.

3. Very young children may not understand why they need to tell the interviewer anything – they often assume the interviewer already knows the answer.

4. Questions using the word “any” are difficult for young children because it asks them to search for any possibility.



However, Marchant warns that other experts have recorded that, from the age of two, children begin to be able to deliberately deceive others[xlix] and from the age of four are considerably knowledgeable about lying and truth-telling – furthermore they can appreciate the seriousness of lying.



Further, she points out that all the usual protective guidelines apply - in terms of weighing up the interests of justice and the interests of the child. This means that not every potential very young witness should be interviewed. Because of such sensitivities, she also believes that pre-trial video-recording of cross-examination and re-examination should be introduced generally in England[l]. She reminds members of the legal profession of a note from the Judicial Studies Board:



“Judges should ensure that advocates do not attempt over-rigorous cross-examination and that they use language that is free of jargon and appropriate to the age of the child[li].



Ruth Marchant is in the vanguard of those doing such work in England. In her work she is probably going as far as possible to elicit the truth whilst protecting the child. However, her technique is centred on asking the child questions about the events which have caused the accusations of abuse. And this can cause distress.



Interviewing young children several times, whether by the parent or a trained professional, is dangerous because of the effect that repeated questioning on a delicate, even ‘secret’, matter can have on the child.

Repeated questioning is an acknowledge danger: it may produce false evidence. In particular it is the element around which the problems of contamination of the truth by “amateur” questioning are centred.



If we could take this dangerous element out of the situation, we might take the quest for reliable evidence from children further.



There is a distinction between telling the truth and truthfulness. A child with poor observation, or poor memory, may incorrectly describe something which can later be checked against a reality. That does not mean the child is a liar – one who is in the categories delineated by Marchant as “able to deliberately deceive others and knowledgeable about lying.” It merely means that the child has some mental vulnerability or personality weakness that caused him or her to get it wrong.



Many teachers know this. It can be useful for an investigator in a child sex abuse case to ask the child’s teacher about how the child reacts to questions about truth. Teachers of young children need to learn how to teach the individual child. To do this they need to learn how each child can learn; this necessitates learning something of the child’s personality. It usually comes down to gauging the child’s intelligence, memory and temperament.



Psychologists can test individuals to better detect such weaknesses and vulnerabilities. The essential elements in such tests are assessments of IQ and Memory.



In a study of children with mild or moderate intellectual abilities, Henry and Gudjonsson[lii] reported:



“Children with mild or moderate intellectual disabilities (ID) were questioned about a live event. The live event was staged again one day later and again two weeks later. Children with mild ID performed as typically-developed children of the same age in response to free- recall instructions and they were just as able as same age peers to resist misleading questions. However, children with mild ID performed more poorly on general questions which were probing for further information after free recall. The children with mild ID also changed their responses to specific questions more often in the repeated interview.”



Incidentally, but of particular interest here, Henry and Gudjonsson pointed out that, compared to the general population, individuals with intellectual disabilities are at increased risk of sexual abuse – as well as physical abuse and criminal victimisation[liii].



An essential element of this research is the staged event or telling of a story. Though it must contain enough elements which can be recalled during later questioning, the subject matter can be, in content, a long way from anything that might be disturbing to the child. For example, with very small children it might be a story about the adventures of some teddy bears on a picnic.



The choice of story does not in any way affect the results, though it must be interesting - and chosen to suit the child’s linguistic development. The child’s strength as a witness can be gauged from the psychological method that is being applied.



In general, the research showed that children with mild ID had certain strengths as witnesses when compared with more normal children. However, with all the children involved in the research who had any intellectual disability, there was one specific weakness – a second interview produced significant “eyewitness shift”.



Drawing conclusions from their results, Henry and Gudjonsson commented that the findings showed:



“some promise as evaluation tools in forensic contexts.”



This research followed the lines of a major innovation in forensic psychology in the eighties and nineties. The eminent psychiatrist James McKeith[liv] worked with Professor Gisli Gudjonsson on what were eventually termed “suggestibility scales.” By using methods similar to those employed by Henry and Gudjonsson in their research on children with intellectual disabilities, these “suggestibility scales” were used as a means of testing false confessions in criminal cases. They tested whether or not a convicted person had personality weaknesses which might have cause him or her to make a confession.



The McKeith – Gudjonsson techniques have now been developed into other areas of the system of law – particularly in their use for testing the evidence of important prosecution witnesses. The “science of suggestibility”, as it is commonly called, has been accepted as reliable in English courts for the past twenty years[lv].



The interesting principle of this research, and the scientific method which McKeith and Gudjonsson brought to confessions, is that their subjects were tested on their credibility by means other than by asking them to recount the events which were the subject of the trial. This clearly has attractive implications for the questioning of children and for testing how reliable their evidence might be.



The method used to compile the McKeith – Gudjonsson suggestibility scales begins with tests of IQ and memory. Then, by a series of sessions over time, and by a carefully formulated method of questioning, figures are produced to estimate various personality weaknesses or vulnerabilities that the subject has. These generally break down into:



1. Suggestibility: the test measures the extent to which the individual can be misled by leading questions and how he or she responds to interrogative pressure.



2. Compliance: the tendency of an individual to uncritically go along with the requests of others.



3. Acquiescence: the test measures the person's tendency to answer questions in the affirmative irrespective of content and how often the person contradicts him or herself


4. Confabulation: the tendency to fill gaps in one’s memory by producing imagined material.



These tests can be made on all adults with comparable results. Scales can be drawn up to illustrate just how much each personality weakness is present in a subject. They put into graphic form just how reliable any account of events might be when recalled by the subject of the test.



We are all subject to personality vulnerabilities of one form or another. Some rise to anger quickly and may blurt out something in anger which is an exaggeration of the truth. Others may remain calm under pressure, yet adapt what they say (and how they say it) so as not to offend the listener. Both would deny they were telling lies, even though their accounts of a particular event may be at variance to the truth and reality.



How much such weaknesses affect our general statements in life depends largely on our memory and our IQ. Important too is our desire to “fit in” with those around us – our own “conformity prejudice”.



In general conversation, most of us fill gaps in our memories of events with a “best guess”. Not to do so is often regarded as “pernickety”. We comply and acquiesce in conversation with others – particularly those with power over us, such as a manager. When we “choose our words carefully” it usually means that we are being diplomatic, rather than trying to be as accurate as possible.



There is an old joke about Cornell Hull who was the American Secretary of State in the thirties. Hull was a lawyer who was well-known for being very careful about what he said. Once, when driving with Hull past a field of sheep, a colleague in the car remarked – “those sheep have been sheared already”. Hull looked up and remarked ‘Well, on this side anyway”. Such “accuracy” and “truthfulness” is commonly laughed at when it is heard in general or casual conversation.



The McKeith/ Gudjonsson suggestibility scales, as they are currently used with adults, are not directly applicable to children. A child rarely understands the difference between casual conversation and accurate reporting. Children only have experience of casual conversation. The Cornell Hull joke would perplex most children – they would not find it funny.



The difficulties in assessing the truthfulness of children lie primarily in:



1. Their inability to distinguish truth from fiction,

2. Their inability to recognise the importance of giving truthful evidence,

3. Their deficiencies in vocabulary

4. Their willingness to accept whatever and adult tells them



Any test of truthfulness in a child would need to take these difficulties into account.



In the investigation of child abuse cases, listening to the children is of prime importance. Total belief in a child is clearly dangerous. On the other hand, non-belief is also dangerous – particularly to the child. Expert child interviewers know that repeated questioning tends to simply produce false – or at least different - testimony. It can ruin a good case. A tool for determining the reliability of a statement needs to be found.



The way forward may well be to undertake research along the lines already being pursued by Henry and Gudjonsson. If ‘evidence reliability assessments’ could be produced to support the truthfulness of supposed victims of sexual abuse, this might aid the work of the police, the doctors and even the courts. It would add to the work already being done by experts such as Ruth Marchant, by giving them a tool, other than their experience, with which to assess the reliability of what a child is saying.



Such ‘evidence reliability assessments’ would be a professional approach using a scientific method, to gauge the strength of a child’s evidence; it would be equivalent to, but much more reliable than, an approach to a child’s teacher in order to gauge the ‘normal truthfulness’ of the child.



The great advantage of the method is that it does not hold the dangers inherent in interviewing the child about the suspected child abuse. Interviewing a child several times about abuse may ruin a prosecution case, but interviewing them about something quite different would not increase the pressure on the children who are involved in such cases.



By protecting the children in this way, such ‘evidence reliability assessments’ would be in keeping with the requirements of the Children Act. They could aid investigations, and also protect families from unnecessary disturbance.



As Henry and Gudjonsson indicated, work with children in such a manner might become at the very least a useful investigative tool[lvi]. One might envisage a hypothesis in which the investigating authorities, given results that show that a certain child’s statement is likely to be very reliable, would be encouraged to increase their efforts to discover other firm evidence on which to build.



On the other hand, if the investigating authorities learn that a child who is the supposed victim of sex abuse has a personality weakness which may mean that the evidence is not likely to be firm, the investigating officers will be warned of the problem and may tread on the feelings of the child’s family carefully. And innocent people might be spared incarceration.



Such assessments might, at last, put an end to the arguments that “Children are liars aren’t they?” One might recall Dr. Bentovim’s remark which was mentioned above:



“Instead, we said that perhaps is was a question of who was assessing the child’s statement in terms of judging whether statements were true or false. This led to an interesting discussion about the problems of current approaches to police investigation.”



“Who assesses the child’s statement” is perhaps the key factor in any case of alleged child abuse. A further question might be “what method which comes up to the Daubert Standard of “best evidence” can be used to make that assessment?”



Such innovations as are suggested here do not happen overnight. McKeith and Gudjonsson began their work in the early eighties. They had to prove that their suggestibility scales had a valid scientific connection to admissibility. In fact it took them some two decades for the courts to admit that their evidence was based on scientifically reliable data and sound methodology and that it could be could be supported by sound reasoning.



To formulate similar tests for children, the research alone would take several years. A project to establish a “Evidence Reliability assessments” for child witnesses would require the involvement of a large a number of children to establish the basis for creation of such assessments. Initial testing might be on children who have no experience of sexual abuse. However, the project would ultimately require the agreements of parents to test children who have been involved in the past with sex abuse cases in which the perpetrator has been identified and dealt with by the courts. This might not be easy to achieve.



There is no current peer review body available to consider the work undertaken and its results. Such would be necessary. Later, the cooperation of various professional journals would be needed in order to disseminate the results of the project on reliability assessment around the professions.



Inevitably the researchers would need the cooperation of other bodies involved in child sex abuse cases – in particular the police. This would be difficult unless some established lines of communication were available. Persons involved in such cases appear to be particularly sensitive concerning their methods and quick to block any suspected criticism. An approach to the Association of Chief Police Officers might be the best way forward, for the project’s aim would be to “firm up” the evidence of children in the prosecution of cases.



There would also need to be discussion with the Bar Association and the Law Society on how such an innovation might be incorporated into the English system of justice – for it is not an adversarial approach.



An initial approach to the Ministry of Justice might be the best way forward. If the Secretary of State likes the idea, funding might be later granted to establish an educational programme so that experts in reliability assessment could be created. There would also need to be discussion with the Ministry on how and when such experts could be introduced into the legal system.



Depending on the system chosen for the implementation of plans for the introduction of “evidence reliability assessments” into the system of prosecution, statutory legislation might be necessary.



One possibility would be a private members bill. This might be introduced as a means of debating this matter in the House of Commons. Another method would be to introduce a bill in the Lords. The objective of both of these initiatives would be primarily to introduce the idea into the political arena. Ultimately it would require the backing of the Ministry of Justice, which might add it to the latest criminal justice bill



Another possibility – introducing such assessments as part of a prosecution case at trial - might be difficult. It would require funding for potentially inadmissible evidence. It might necessitate a ‘trial within a trial’ which would inevitably be adversarial in nature. The essential would be to demonstrate that such “evidence reliability assessments” have ( as per Daubert) ‘“valid scientific connection to admissibility.”





If it is accepted that the influence of the Children Act produced an imbalance that worked against the protection of children by means of successfully prosecuting their abusers, if it is accepted that the pathology of investigating child abuse is still not reliable, then any advance in the baseline of every investigation – the evidence of the child – may be the only way forward in achieving better “best evidence” at the moment.





[i] Children Act 1989 part one, chapter 1, sect 1.6

[ii] Guardian 26th June 2012 – quoting figures from Child and Woman Abuse Studies Unit booklet 1995.

[iii] Bernard Gallagher, Centre for Applied Childhood Studies University of Huddersfield 2008 “Attempted and completed incidents of stranger-perpetrated child sex abuse and abduction”

[iv] Yakeley “Working with Violence A contemporary psychoanalytic approach” 2009

[v] “Allegations of abuse” Medicine science and the Law 2002 Vol 42

[vi] “Allegations of abuse” Medicine science and the Law 2002 Vol 42

[vii] Pillai – Medicine Science and the law (2002) Vol 42 2

[viii] Section 47 Children Act 1989 “open to the possibility that allegations may or may not be true”

[ix] Medicine Science and the Law (2002) Vol 42 no 2

[x] CCRC Annual reports 2008 - 2013

[xi] In 1996 the two accused had been found not guilty of other related charges

[xii] Roberts “Forensic Medicine in rape and child sex abuse cases” Journal of the Royal Society of Medicine

Vol 92 August 1999

[xiii] Peter Fonagy, Foreword to “Memory in Dispute – ed Sinason 1998

[xiv] Neil Vidmar “Judging the Jury” 2nd edition 2001

[xv] Crown Prosecution Service with Department of Health “Achieving best evidence in criminal proceedings” March 2011.

[xvi] Geddes and Plunkett

[xvii] Reece R.M. Letters – the evidence of shaken baby syndrome BMJ 2004 Reece is a paediatrician in Cleveland USA.

[xviii] Daily Mail at: http://www.dailymail.co.uk/femail/article-1382290/At-half-parents-tried-shaken-baby-syndrome-wrongly-convicted-expert-warns.html

[xix] R. v Harris 2005 judgement para 149

[xx] McCann, Voris and Simon - Genital injuries resulting from sexual abuse “Paediatrics” 1992

[xxi] A coloscope is a camera specially adapted to be used in the examination of the vagina.

[xxii]Professor of Clinical Pediatrics University of Southern California, “Evaluation of the Sexually abused Child” 1992

[xxiii] Medicine Science and the Law 2013 53

[xxiv] Journal of Clinical Forensic Medicine (12) 2005

[xxv] Raine Roberts “Forensic Medicine in rape and child sex abuse cases” Journal of the Royal Society of Medicine

Vol 92 August 1999

[xxvi] Re Y evidence of abuse : use of photographs 2003

[xxvii] Solicitors Journal 11th March 2005

[xxviii] “Judicial attitudes to expert evidence in children’s cases” Royal Courts of Justice 1997 in Archive of Disease in Childhood 1997

[xxix] Medicine Science and the Law 2013 53

[xxx] M. Pillai - Journal of Clinical Forensic Medicine (12) 2005

[xxxi] “Physical signs of sex abuse in children” Royal College of Physicians – first published 1997 latest revision 2013.

[xxxii] Guidelines on Paediatric Forensic Examinations in Relation to Possible Child Sexual Abuse April 2002

[xxxiii] “ABC of child abuse” Meadows 1997

[xxxiv] http://www,publications.parliament.uk/pa/cm200405/cmselect/cmsctech/96/96i.pdf

[xxxv] Medicine Science and the Law 2013 53

[xxxvi] Arnon Bentovim “Memory in Dispute” ed Sinason 1998

[xxxvii] The suggestibility of Children’s Memory” Bruck and Ceci 1999

[xxxviii] Foreword to “Memory in Dispute – ed Sinason 1998

[xxxix] “The suggestibility of Children’s Memory” Bruck and Ceci 1999

[xl] Marchant quoted in “How young is young? The evidence of children under five in the English Criminal Justice system” –2013.

[xli] Youth Justice and Criminal Evidence Act 1999

[xlii] See report in the Daily Mail 4th May 2009 the interview was on a live video link and was a part of the Baby P trials.

[xliii] R v Barker 2010

[xliv] Weissman 1991 quoted in “Child Sex abuse in Singapore with special reference to Medico-legal implications a review of 38 cases” Yiming and Fung Medicine Science and the Law vol 43 3 July 2003

[xlv] Summarised in “Forensic Psychology: Emerging Topics and Expanding Roles” ed. Goldstein 2006

[xlvi] “The suggestibility of Children’s memory” Maggie Buck, McGill Montreal and Stephen Ceci, Cornell University New York 1999

[xlvii] Triangle is an independent body located in Brighton. It can be employed to conduct investigative interviews with children for criminal, family or civil proceedings. Its aim is to set the standard in the UK and beyond for careful and effective communication with children. It is a leading authority on research, training and resource development for enabling a child’s best evidence to come to court.

[xlviii] “How young is young? The evidence of children under five in the English Criminal Justice system” – Marchant 2013.

[xlix] See among others: “The moral, epistemic, and mindreading components of children’s vigilance towards deception” Olivier Mascaro , Dan Sperber Institut Jean Nicod Paris. Also “Children's conceptions of lying and truth-telling: Implications for child witnesses” - Kay Bussey and Elizabeth J. Grimbeek in “Legal and Criminologial Psychology” British Psychological Journal 2010.

[l] For more detail, see “Children’s’ evidence: the Barker case and the case for Pigot” Professor John Spencer 2011.

[li] Judicial studies Board ( Now the Judicial College) 2009 page 4. A lengthier set of guidelines are in the Judicial Studies Board report “Fairness in Courts and Tribunals” 2010 – at 5.2. The Judicial College trains judges and advises on the latest changes in law..

[lii] “Eyewitness Memory Suggestibility and repeated recall sessions in Children with Mild and Moderate Intellectual Disabilities” - Henry and Gudjonnson, American Association on intellectual and development disabilities vol 104 issue 6 1999.

[liii] They also noted, perhaps significantly, that “it seems that few cases concerning people with learning disabilities reach the courts”

[liv] Now deceased, but erstwhile senior psychiatrist South East region Bethlem Hospital – and Criminal Case Review Commissioner.

[lv] R v Enghin Raghip 1991

[lvi] See above, with reference to children with mild intellectual disability.



-Peter Hill


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