‘I hate to imagine how many children there were who complained of molestation or who were or knew they would be, if they did complain, subjected to corporal punishment of one kind or another for telling lies about nice Mr so-and-so, the history master.’ Striking while the iron is hot, those were the words of the Lord Chief Justice, Lord Judge on Wednesday night, delivering the first annual Toulmin Lecture in Law and Psychiatry at King’s College London.
Entitled Half a Century of Change: The Evidence of Child Victims, Lord Judge’s lecture recounted the ways in which the approach to the evidence of children, and in particular children who are the victims of sex crimes, has changed during the last 50 or so years.
The Lord Chief Justice was damning in his indictment of past processes which, he argued, ‘discouraged or effectively disenfranchised the young from coming forward’, thus leading to the current wave of cases of historic sexual allegations coming to the fore: ‘We are,’ he said, ‘catching up with the consequences of the problems ignored or created by earlier generations.’
Seen and not heard
Lord Judge questioned whether a belief that children were not worth listening to is part of the reason for the recent emergence of so many historic sexual abuse cases. This belief, combined with rules of admissibility designed as a safeguard to protect the innocent from wrongful conviction, and the ‘competency test’, whereby ‘children below some notional fixed age could not give evidence’ simply closed the door to many children’s complaints, he argued.
The system has since changed for the better, said the Lord Chief Justice, with the introduction of such special measures as video recorded evidence-in-chief, the screening of child witnesses from the defendant, the removal of wigs and gowns so as not to intimidate children, and changes to the layout of courts so that the child does not come through the same door as the defendant, and is kept in a place where the child can neither see or be seen by the defendant and his supporters.
‘Society has changed: the attitude of society to complaints by children has changed. People recognise in a way they did not that these things, sadly, unfortunately, do happen. And that they can cause devastating damage.’
Lord Chief Justice, Lord Judge.
Whilst such ‘revolutionary changes’ have been profoundly welcome to improve a flawed system of evidence for child sexual abuse victims, Lord Judge asserted that ‘the necessary revolution in our processes is not yet over’, and that more change is needed.
This call from the Lord Chief Justice for enhanced protection of some of the most vulnerable witnesses in the criminal justice system ought to be embraced – albeit with caution. We must not allow the pendulum to swing too far in the direction of the victim, to the detriment of the rights of the accused, if we are to adhere to the rule of law and one of its most fundamental principles: the presumption of innocence.
Lord Judge seems convinced that this balance between the rights of child sex abuse victims and their alleged abusers can be struck, concluding the lecture on a positive note: ‘Given that so much has been achieved without unfairly prejudicing the position of the defendant, we must confidently expect this revolution to continue.’
Author: Mary-Rachel McCabe
Mary-Rachel McCabe is a barrister at Doughty Street Chambers. She specialises in social welfare law and children’s and women’s rights. She tweets @MaryRachel_McC