Criminal Proceedings for Young People in England - Research Paper Example

Introduction In most legal jurisdiction the justice system is adjusted to cater for the needs of underage person who are involved in the justice process. It is especially imperative to make special consideration for under age people who are involved in the criminal justice system. Children may be caught up in the process of delivering justice in two distinct ways; either as offenders or as witnesses to criminal acts. Both interactions with criminal justice processes can affect the development of child psychologically. When an underage individual interacts with the justice system as an offender, Justice Authorities must make sure they protect the young individuals from the harsh effects of the criminal justice system. The future of a young person and his welfare must be the most important features considered by the justice system while handling offenders. Punishment especially incarceration should to a larger extent be aimed at correcting the antisocial behaviours of the young offender rather than obtaining a measure of revenge for the person or community offended by the individual. In contrast, Children can become involved in the criminal justice delivery process as witnesses. Unlike offenders most of the underage individuals who witness crimes are innocent. The vulnerability of children makes is more important for justice authorities to make provisions for them where their evidence is important in getting criminals convicted. From the questioning by police investigators to the final appearance in the courtroom the process of giving evidence for crime can be hallowing for young witnesses. Additionally, criminals are known to threaten those who testify against them to instil fear in them or prevent them from presenting evidence that could condemn them. Over time the governments of England and Wales have developed policy that addresses the unique challenges involved in ensuring justice prevails for youth offenders and witnesses alike. Criminal justice for juvenile offenders has managed to put the consideration of the young offenders first. The education and young life of child offenders is not significantly affected by punishment. However, concern continues to mount that the adversarial criminal justice system continues to victimise juvenile witnesses and young victims of violent crime in the search of a defendant’s convictions or proof of innocence. This paper concentrates on the need to further protect child witnesses from the negative effects of involvement in a harsh adversarial justice system. This paper discusses the theory behind provision of special measures for youth witnesses in criminal proceedings. Secondly, it analyzes developments in youth justice over time in legislation and in the judiciary in both England and Wales. It also examines the failings of the youth justice system with emphasis on possible oppression and discrimination in provision of its services. Ideologies and theoretical Constructs of Youth justice According to Muncie (2009) exposure of children to the harshness of the criminal justice system stresses their mind very much. Plotnikoff and Woolfson (2004) notes that extracting evidence from children affects their emotional well being, while the evidence given may not be actually objective. Care then should be taken to shield children from aggressive evidence gathering and close-examination in courts. Although children are subjected to rigorous examination when evidence is being collected, Bull (1998) shows that methods that are lighter on their minds are effective in obtaining objective information. Bull (1998) show that children resist suggestive questioning that leads them away from the truth. According to Bull (1998), children remember stressful events with more clarity than other events that occur around them. Specific questions are likely to cause trauma to children as they remember the disturbing event. However, even with questions that are neither specific nor leading children are still able to reconstruct events that can enable evidence to be gather easily (Birch, 1992). Bull (1998) alleges that it is hard for children to falsify evidence which is related to sexual abuse. Therefore, these psychological characteristics of children make it unnecessary for probing questions that seek to verify the accuracy of statements of juveniles who are testifying. Children have been found to live in fear of criminal offenders and are afraid to meet or identify criminals. In an experimental setting only 33 per cent of child witness could identify a man they had witnessed stealing a box of money (Bull, 1998). 58 per cent of the children in the experiment said the suspect was not present in the simulated parade (Bull, 1998). Most of the children cited fear as the reason they declined to pick out the offender from the line-up. A further experiment that could be used to verify offender identity using children witnesses makes us of body signals they show during the identification parade. This could be a more accurate way using child witnesses for picking out suspects in identification parades (Hodgson 1997). Generally, research on children as witnesses proposes that justice officers observe the following vital points while interviewing young children (Bull, 1998): a) They must realize children are vulnerable as witnesses b) Interviews must be prompt to promote accurate recall of the events. c) Suggestive questioning should be limited to the minimum. d) A child’s cognitive and language skills must be put into consideration. e) Questioning must be adjusted to each individual child’s level. f) Alternative means of verifying the validity of a Child’s statement should be developed including observance of their non-verbal cues. Literature also suggests varying of the court proceedings to fit the appearance of juvenile witnesses in court (Birch, 1992): a) Court appearances for children can be aggravated by badly conducted repeat interviews followed by multiple court appearances or by aggressive cross-examination. b) The presence of an appropriate adult, judgement of the case and passing of time ameliorate the effects of court appearance. c) Preparation of children psychologically for court appearances enables them to properly handle the court process. Policy Developments in Youth Justice in England and Wales Before 1988, the criminal justice system in England and Wales remained largely adversarial with emphasis on extracting evidence by aggressive means regardless of who the age of the witness. The adversarial model was ineffective in obtaining objective evidence from vulnerable witnesses especially children. According to Hoyano (2000), any child who had the misfortune of going through this system became very traumatised by the process. In response to complaints by various interest groups, the legislative reforms were enacted, accommodating the needs of children who had to give evidence. However, these reforms were inadequate to address the diverse issues of children involved in criminal justice proceedings (Hoyano, 2000). The Criminal Justice Act of 1988 (CJA 1988) significantly boosted the fight to accommodate children need in court proceedings. Section 32 of the Act allowed video testimony of child witnesses via a closed circuit television link to the courtroom (Cooper, 2005). In contrast, to suggestions by literature on the topic, the pre-recording of evidence was not included in the changes brought about by the 1988 Act. Instead of enacting these proposals the Government formed the Pigot committee which was responsible for investigating and proposing further changes to evidence gathering rules involving children (Hoyano, 2000). When the Pigot committee presented its findings and proposals they were very similar to what literature on the topic suggests (Hoyano, 2000). According to the report court proceedings involving juvenile witnesses should be concluded as soon as possible and evidence must be gathered in a way that puts considerations of a child’s Psychological well being first. The Pigot report called for the adoption of Pre-trial recording of Children’s testimony in criminal proceedings (Cooper, 2005). However, Legislative changes to the evidence rules in 1991 did not adopt Pigot’s proposal. The proposal was termed as too radical and was opposed in various quarters. The Criminal Justice Act of 1991 fell short of fully adopting pre-recorded testimony as a means of protecting children from the adversarial criminal justice proceedings (Roberts and Cooper, 2005). In spite of this failure the CJA 1991 provided the following reprieve for children testifying in criminal cases (Hoyano, 2000): a) A pre-recorded testimony of a child’s witness account conducted by police officers with an appropriate adult was admissible as evidence in criminal trials. However, this was limited to the discretion of the trial judge, who could reject it in the interest of justice. b) In contrast to recommendations by the Pigot commission and literature, Juvenile witnesses were required to attend the actual trial for cross examination. c) Videolink testimony during the actual trail was also left to the discretion of the trial judge. d) Finally, Children could not get the assistance of an “intoluctor” to assist them with their interaction with the court. The 1988/1990 legislative changes were in sharp contrast to the changes proposed by literature to protect children involved in the criminal justice system. The changes left Children witnesses inadequately protected from the harsh realities of criminal proceedings in both England and Wales. The campaign to offer further protection to juvenile witnesses continued advocating for the full adoption of the recommendations of the Pigot report (Cooper 2005). The campaign for the full implementation of the Pigot recommendation led to the passing of the Youth Justice and Evidence Act 1999 (YJCEA 1999). Backed by public enquiries into criminal proceedings on child abuse and findings of the Governmental’s Interdepartmental Working Group on the Treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System in 1998, the changes went through parliament with minimal opposition (Hoyano, 2000). Instead of fully adopting the Pigot recommendations the YJCEA 1999 came up with a complicated formula of deducing the admissibility of pre-recorded or video testifying in criminal trials (Cooper, 2005). In contrast, a study proposed a simpler formula whose only limit for access to special procedures is the age of the child (Hoyano, 2000). Theoretically the YCJEA 1999 provided automatic qualification for special measures for all children aged 17 and below. However, this automatic qualification was delimited to offences of a specific nature only (Cooper, 2005). Under the YCJEA 1999, the access to certain special measures was delineated to two broad classes of offences (Hoyano, 2000). Offences where Juvenile witnesses were required to testify were divided into: Sexual Violence and Physical violence. Children testifying in sexual abuse cases could be cross-examined before trial on Video. In contrast, victims of physical abuse are entitled to a live link cross-examination at trial. However, Juvenile witnesses of physical abuse could still be cross-examined before trial, if the court is of the opinion it improves the quality of their statement (Cooper, 2005). The most recent legislative reform in Youth justice came in form of the Coroners and Justice Act 2009 (CJA 2009). The CJA 2009 improves on the progress made in the 1999 Act. Under the CJA 2009 all individuals below the age of 18 can access special measure if they are witnesses in criminal proceedings (Cooper, 2005). However, the age limit for face to face cross-examination was raised to 18 years but remained fixed at 14 years for witnesses of other violent crimes (Cooper, 2005). A court can recommend for the assistance of a witness if it finds that the quality of his/her testimony is likely to be affected by fear or distress. Under section 17 of the Act victims of sexual abuse automatically qualify for assistance in testifying (Roberts and Cooper, 2005). The CJA 2009 allows for more flexibility evidence gathering process, unlike the YCJEA 1999 that only allowed one videotaped evidence in chief and a live link testimony by vulnerable children ( Hoyano, 2000). In the CJA 2009 children have the more options of giving evidence in chief and of testifying provided these methods do not affect the quality of evidence. Conclusion Much progress has been made in England and Wales towards the recognition of the legal rights of children that testify in criminal trials. Both the YCJCEA 1999 and the CJA 2009 represent the most recent government reaction to the issue. They are aimed at making sure juvenile witnesses are not intimidated facilitating a situation where they present consistent and complete testimony that can help courts decide criminal cases justly. For young witnesses presenting their account of what they witnessed can be a scary experience. In most cases where children have to give evidence just the recounting their experience can be traumatising. The situation is in most cases worsened by delayed trials that create prolonged tension in the child’s mind as they await the confrontation with the suspect. Secondly, the adversarial nature of the criminal justice system and other procedures followed in criminal trials create an intimidating environment for juvenile witnesses. Many of the young witnesses in criminal trials feel the criminal justice system mistreats them. Ironically, both the YCJEA 1999 and the CJA 2009 ensure that the rights of the defendant are respected. The defendants still has the upper hand in the criminal justice system as he is able to challenge the testimony of child witnesses. By allowing child witnesses to access specials measures the YCJEA 1999 and the CJA 2009 are significant steps in the right direction in ensuring the rights of child witnesses are observed in criminal trials. The special measures ensure that the testimony of young witnesses is of the highest quality possible while at the same time considering their psychological well being. Thus, the two pieces of legislation ensure there is a balance between defendant’s rights and those of child witnesses in criminal proceedings. References Muncie, J. (2009). Youth & Crime3rd edition. London: Sage. Arthur, R. (2010). Young Offenders and the Law. London: Routledge.  Birch, D.(1992). Children’s Evidence. Criminal Law Review. 1992, pp. 262.  Bull, R. (1998). Children as Witnesses. Policing, 4: pp. 130.  Cooper, D. (2005). Pigot Unfulfilled; Video Recorded Cross-Examination Under Section 28 of the Youth Justice and Criminal Evidence Act 1999. Criminal Law Review, pp. 456-66.  Hodgson J. (1997). Vulnerable Suspects and the Appropriate Adult. Criminal Law Review. Pp. 785-9.  Hoyano, L.C.H (2000). Variations on a Theme by Pigot: Special Measures Directions for Child Witnesses’, Criminal Law Review., pp. 250-73.  Plotnikoff J. and Woolfson R. (2004). In Other Words: The Experiences of 50 Young Witnesses in Criminal Proceedings. NSPCC/Victim Support.  Roberts, R. and Cooper, D. (2005). Special Measures or Vulnerable and Intimidated Witnesses: An Analysis of CPS Monitoring Data. London. HMS Read More