CRIMINAL JUSTICE ISSUES
The Children's Safeguards Review
10.1 The Children's Safeguards Review concluded that the criminal justice system is not working in a way which protects children against abuse, with few convictions in relation to the cases investigated, and young children and disabled children being disadvantaged to the point of being deprived of justice. Also child witnesses may be further harmed by the court process. The Review recommends that the Government implement the remaining recommendations of the Pigot Report; and undertakes a comprehensive review of the arrangements for prosecuting offences against children to make them more effective.
The Government Response
10.2 Action to improve
the treatment of child
victims when they seek
access to justice
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10.2 The Government shares the concern highlighted by the Children's Safeguards Review that, although legislation has been introduced to improve the conditions in which children can give evidence, this does not appear to have led to an increase in the number and success of prosecutions involving child abuse. The Government attaches great importance to improving the position. This chapter outlines the work which is in progress. The Government has asked the inter-departmental Steering Group on Child Evidence to take forward the improvements needed to ensure that the child evidence provisions operate effectively. Details of some of the issues which the Steering Group is considering are at Annex D.
Information about child abuse prosecutions
10.3 The Government is determined to obtain better information on the reasons for the high drop-out rate in order to inform future action. There are a number of research projects currently in progress which aim to identify the reasons for drop-out and ways to improve the investigation and prosecution of offences against children. Full details are set out at Annex E. In addition, the CPS inspectorate published a report in January 1998 on cases involving child witnesses which made a number of recommendations to improve the way child abuse cases are handled. HM Inspectorate of Constabulary (HMIC) is also conducting a thematic inspection of police forces on child abuse prosecution.
Access to justice for children
10.4 The Government is determined to ensure that children and other vulnerable witnesses can give their best evidence with the minimum of distress, and that court practices should be adapted wherever necessary and appropriate to improve their effectiveness and afford greater protection to children, whilst maintaining the right of the defendant to a fair trial. On 10 June 1998, the Home Office published Speaking Up for Justice, the report of the interdepartmental working group on vulnerable or intimidated witnesses, including children, which the Home Secretary established to take forward the Governments manifesto commitment to provide greater protection for witnesses at all the stages of the criminal justice system.
10.5 Speaking Up For Justice highlighted the need for training for all those involved in the criminal justice system to assist them in responding to the needs of vulnerable witnesses, including children. The recommendations which relate specifically to child witnesses include:
- the existing child evidence measures (videoed statements and live CCTV links) should be available for all witnesses under 17 years
- all child witnesses under 17 years, regardless of the nature of the offence should automatically attract the new special measures proposed in the report including the unimplemented Pigot proposals on videoed pre-trial cross-examination and assistance with communication where necessary including the use of an intermediary
- there should be a presumption that child witnesses giving live evidence to the court should do so by CCTV links
- all measures should be available in the magistrates courts, youth courts and the Crown Court
- the scope of the ban on defendant cross-examining child witnesses in person should be increased by extending the categories of offences to include false imprisonment, kidnapping and child abduction.
10.6 The working group also looked at a number of wider issues raised in the Children's Safeguards Review and has proposed that:
- the concerns about severing indictments need to be examined as a whole, as the rule on severing indictments applies to all criminal offences and that a wider review should be undertaken
- on adversarial cross-examination, the Lord Chief Justice should be invited to consider issuing a Practice Direction giving guidance to barristers and judges on the need to disallow unnecessarily aggressive and/or inappropriate cross-examination. The Lord Chief Justice issued guidance on the conduct of trials when considering an application for leave to appeal in R v Brown on 6 May 1998.
10.7 The Government has indicated its broad support for the recommendations in Speaking Up For Justice and is consulting on the details before reaching any final conclusions. The consultation exercise ended on 31 August 1998. The Government will make an announcement shortly setting out how it intends to take this forward.
Wider review of procedures
10.8 The Children's Safeguards Review also makes a number of recommendations which were intended to make it easier to bring prosecutions in child abuse cases and suggests that this should be taken forward by a wider review, which should consider:
- modifying the criminal standard of proof (beyond reasonable doubt) either to the civil test (on a balance of probabilities), or to a test somewhere in between
- requiring the CPS to initiate proceedings in the County Court, for the purpose of obtaining a certificate from the court that the case is fit for trial in the Crown Court
- that information on the defendants previous offending and other cases pending should be available to the court.
10.9 As the Safeguards Review recognised, these proposals raise significant implications for the interests of justice and the fair treatment of defendants. There are also implications here for all offences, not just child abuse cases:
- the Government believes that it would not be right to change the standard of proof in a criminal trial in one type of case where the witness happened to be a child and it is also likely to be in breach of the United Kingdoms obligations under Article 6 of the European Convention on Human Rights. It therefore rejects this recommendation
- the Government also sees considerable legal and practical difficulties with the proposal to involve the County Court. At present, no oral evidence is taken at committal hearings, and cases involving children can be transferred direct to the Crown Court. This proposal would re-introduce a form of committal hearing at which the child would have to give evidence and be cross-examined and then go through the whole process again at the trial. The use of civil procedures in the early stages may also have an adverse impact upon the trial and may result in fewer committals and convictions. A certificate from the County Court may help a child feel that he or she has been believed, but any benefit would be short-lived if the subsequent criminal proceedings resulted in acquittal. The Government is not persuaded that these proposals provide significant advantages over the existing arrangements and could result in more distress to the child, greater delay in proceedings, prolonged litigation and fewer cases going to criminal trial. It therefore rejects this recommendation
- as for previous offending, the law governing the admissibility of evidence of previous misconduct is complex and is currently under review by the Law Commission which published a consultation paper in 1996. The Government will consider this issue when it has received the Commissions report.
Child pornography
10.10 High priority will
continue to be given to
the detection of
child pornography
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10.10 The Government shares the concern about the availability of child pornography, particularly on the Internet. As the Children's Safeguards Review acknowledges, there is a range of legislation which can be brought to bear to tackle this problem, and the Government is determined to ensure that this remains adequate to protect the most vulnerable in our society:
- against this legislative background, the Government continues to support the work of the Internet Watch Foundation (IWF), an independent self regulatory body which was established in September 1996 in response to growing concern about the availability of child pornography on the Internet. Progress has been made in tracking and removing potentially illegal pornographic material via reports made by Internet users to the IWF "hotline". Details are then passed to the National Criminal Intelligence Service and the police. The Government has announced a review of the work of the IWF which will be completed in the Autumn
- the Government is also sympathetic to the concern which underlies the recommendations in the Children's Safeguards Review relating to the law on importing and exporting pornography. HM Customs and Excise are currently looking at ways to strengthen the controls in this area and the Government wishes to consider their proposals before reaching a conclusion on this matter.
- the Immigration Service National Intelligence Section(ISNIS) takes an overview on vice-related matters such as paedophile activity, and the Enforcement Section has a team which has the operational lead on vice-related activity in the Metropolitan area. The police have access to the Suspect Index and can add names of known offenders to the database. This is accessed by Immigration Officers at ports of entry and is now being used at visa issuing posts overseas.
Prostitution
10.11 Review of the law
on sexual offences
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10.11 Inter-agency
guidance on child
prostitution for police and
social services
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10.11 The Government recognises that a child who is involved in prostitution is primarily the victim of coercion or abuse and is not necessarily a consenting participant. The Government has announced its intention to review the law relating to sexual offences: this review will include consideration of the offences and penalties that should apply to those who use or live off the earnings of child prostitutes. It is not convinced, however, that decriminalising loitering or soliciting for those under 18 is the best way to protect children who are at risk; perversely it could actually increase the numbers of child prostitutes on the streets. The Governments aim is to prevent and deter children from entering or staying in prostitution, and the Government believes that the best way forward is a multi-agency approach with children's welfare as the prime concern:
- ACPO have produced new national guidelines which emphasise the need to treat child prostitutes as victims and to use inter-agency co-operation to divert them away from prostitution. The guidelines were prepared by an ACPO working party that included relevant Government departments, children's charities and the ADSS. After successful pilot schemes in Wolverhampton and Nottingham, ACPO adopted the guidelines for national use
- the Department of Health's consultation paper on revising the Working Together suggests that Area Child Protection Committees should be encouraged to develop protocols for handling the problem in their area. It emphasises the importance of close co-operation between the police and social services, and seeks views on how best to address the problem of children in prostitution. Revised guidance, taking account of the responses received to the consultation, will be issued in Spring 1999
- the Home Office and Department of Health have undertaken to produce new joint guidance for the police and social services on how to deal with children in prostitution on a welfare basis. This will be the first such formal guidance issued on the subject. It will draw upon the ACPO guidelines and the outcome of the Department of Health consultation exercise: it will also take full account of the juvenile justice changes in the Crime and Disorder Act
- The Government have announced their intention to develop a National Plan for combating the commercial sexual exploitation of children as required by the Agenda for Action agreed at the Stockholm World Congress in 1996. This will provide the strategic dimension for the range of programmes being developed across departments and agencies.
Treatment of sex offenders
10.12 The Home Office is supporting a major programme of work to improve the ability of the prison and probation services to treat sex offenders and reduce the risks to children which they present:
- probation services have been asked to implement a number of recommendations by HM Inspectorate of Probation in a recent thematic inspection of the services work with sex offenders, although the report found that overall the service is doing a good job in protecting the public from them
- work is also in hand to develop a model treatment programme, building on best current practice, which will be amongst the first to be subject to a new system of independent accreditation for probation service supervision activities. The Home Office is also taking forward, with the Department of Health and the Local Government Association, the recommendation by HM Inspectorate of Probation that specific assessment and treatment provision for adolescent sex offenders should be developed
- the Home Office continues to fund, as a national resource for probation services, the Faithfull Foundation's residential treatment programme for sex offenders against children.
10.13 The supervision of sex offenders in the community following release from prison will, over time, be helped by provision in the Crime and Disorder Act 1998 for the courts to order extended supervision of up to 10 years, enforceable by recall to prison. In the shorter term the Home Office has established a group, on which the police and probation services and local government are represented, to oversee the resettlement arrangements for sex offenders who have to be released at the end of their sentences under the previous law.
10.14 While not directly related to the recommendations of the Children's Safeguards Review, it should be noted that the Government has put considerable effort into combating the threat of re-offending by serious and dangerous sex offenders against children. In particular, through the implementation of the Sex Offenders Act 1997, such individuals have to register their name and address, and any subsequent change of name and address, with the police. Guidance has stressed that this must not simply gather dust on a file or sit on a computer but must be used for the protection of children. There has been a very high degree of co-operation on behalf of the Police Service and the Probation Service, as well as the Prison Service, in identifying offenders who pose a risk and taking appropriate steps to prevent such a risk turning into a reality.
10.15 The ability to manage risk will also be enhanced by the implementation of the Sex Offenders Act which does not increase the level of penalty for such offenders but does allow intervention by the Courts to help prevent future danger by imposing penalties for failure to provide relevant details to the police.
Implementation, monitoring and enforcement
10.16 The Government is determined to ensure that the criminal justice system is effective in protecting children from those who might seek to harm them. It intends to address the concerns which were raised in the Children's Safeguards Review through the following programme of work:
- the Steering Group on Child Evidence to monitor the existing child evidence provisions (as set out at Annex D) and to take forward improvements in the light of relevant research projects (included in the list at Annex E)
- the Government has established a Steering Group to implement those recommendations in Speaking Up For Justice which it decides to accept
- review of the work of the Internet Watch Foundation for completion in November 1998, with publication of the final report in December 1998
- HM Customs review of import and export controls on pornography which is due to report with initial findings in March 1999
- Home Office and Department of Health to draft new joint guidance on dealing with child prostitution shortly
- review of law relating to sexual offences which would include the offences and penalties for those who use and abuse children in prostitution.
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Outcomes
10.17 The Government expects this action to help provide:
- less traumatic experiences for child witnesses
- increased public confidence in criminal proceedings involving children
- reduced numbers of children being exploited in prostitution
- improved treatment for sex offenders.
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