Emma Davies: It doesn't get any better for children facing the law

The lintel of the Old Bailey in London: in New Zealand the Government appears to have shelved measures to improve the treatment of children in the courts. Photo / Supplied

Opinion

Govt should honour commitment to child victims and witnesses.

The Honourable John Key's opening Statement to Parliament last year was encouraging for children who give evidence in the criminal courts. In the critical speech in which he outlined his Government's programme of action, he talked about "developing measures to improve the treatment of children who appear as witnesses and victims, to minimise the trauma they face".

Recent interviews for The Nation and the Herald suggest that the Minister of Justice, Judith Collins, has other priorities. When discussing her priorities on The Nation, she didn't mention her Government's documented solutions to the problems the criminal courts face dealing appropriately with children. The Herald reports that she has ruled out changes to trials for child victims, noting that there are already processes in place to reduce stress on victims, such as pre-trial interviews for children (Court rules out change to trials for child, sex victims, September 24, 2011).

Pre-trial interviews for child complainants of sexual assault were actually introduced more than 20 years ago. They were extended to children alleging physical abuse in the 1990s. They are sometimes used with children who have witnessed murder. More often, child witnesses allege some form of physical or sexual abuse by an adult they know well, often a family member. These children do a community service by giving evidence, usually for the prosecution, sometimes for the defence.

A key problem is the time between children's pre-trial interviews and their appearance in court. A few years ago, delays in the largest regions averaged 15 months from the time charges are laid (usually after the pre-trial interview) to the time children were cross-examined. These delays are now even longer in the Auckland region. It is simply unfair to expect a 7-year-old child to wait 18 months to be cross-examined on her statement.

There are also problems with the way that children are cross-examined when they get to court. In common with research from Otago University, research by my colleagues and I found that children were often asked questions they could not understand. This partly reflects little judicial and legal training on questioning children. However, scientific literature on how to elicit the best evidence from children fundamentally contradicts the established principles and practices of cross-examination. The former Minister of Justice, Simon Power, understood this.

Simon Power explored inquisitorial systems in 2010. Last year, he developed eight concrete proposals to reduce the impact of time delays for child witnesses, improve the questioning of children and the way the courts deal with children. These reforms are firmly based in our adversarial criminal justice system. For example, the proposal to pre-record children's entire testimony has been operational in Western Australia since 1992 and has since been extended to other Australian states.

The Cabinet Domestic Policy Committee agreed to all eight proposals for reform. Therefore, as former Minister of Police, Judith Collins presumably supported the reforms then alongside her Cabinet colleagues. While the minister is differentiating herself from her predecessor, there is no evidence that things have improved for children.

The agreed reforms for child witnesses include:

•A legislative presumption in favour of pre-recording a child's entire evidence, including cross-examination, applicable to children under 12. This would mean most child witnesses under 12 could exit the system much quicker.

•Introduction of intermediaries to improve the questioning of children under 18, where an intermediary is available. Intermediaries are neutral language specialists who assist lawyers to put questions to children. There are various successful models for intermediaries. For example, intermediaries in England assess children's communicative competence, advise the court on the best way to communicate with the child and monitor questioning in court.

To develop these proposals, Ministry of Justice officials consulted international and national experts, 14 government agencies, and professional and community organisations. Responses to the ministry's 2010 Issues Paper - Alternative pre-trial and trial processes for child witnesses in New Zealand's criminal justice system - revealed broad community support for the proposals, including from the New Zealand Law Society, the New Zealand Psychology Society, Barnardos and Te Ohaakii a Hine the National Network Ending Sexual Violence Together.

Ensuring that all accused people have a fair trial, and obtaining the most accurate and complete testimony from child witnesses, are both critical to the quality of justice delivered by the courts.

The Cabinet minute provides Judith Collins with concrete proposals to meet the Prime Minister's objective to improve the courts' treatment of child witnesses. There are realistic proposals on the table that are supported by officials, professional associations and community organisations who work with children.

It's time for the Minister of Justice to honour the Prime Minister's commitment to children by introducing legislation into Parliament as a first step towards implementing the reforms Cabinet agreed to last year.

Dr Emma Davies is a research associate at the Institute of Public Policy at AUT and a partner in Rowe Davies Research. www.rowedaviesresearch.co.nz