When to simultaneously elicit evidence, ensure a

 

            When children are witnesses of an unlawful
event and an investigation ensues, justice systems aim to simultaneously elicit
evidence, ensure a child’s wellbeing, and protect a suspect’s right to a fair
trial (Libai, 1968). The topic upon which this essay will focus, and one of the
most common reasons for children’s involvement in the judicial system, is
suspected child abuse (Gabora, Spanos, Joab, 1993). Corroborative evidence may
not be available in these private, sexual crimes (Malloy & Lamb, 2015)
thus, demands for quality child testimony are high (Goodman & Bottoms, 1993).
However, investigations comprise complex foreign situations for children with
substantial cognitive demands, potentially compromising the veracity of
information a child provides (Roberts et al., 2011).

This essay will consider the chronological process of
forensic investigation and legal proceedings in Norway and the UK, and the
impact of these systems on the quality of child testimony. It will be concluded
that the Norwegian Barnahus system is an advantageous alternative for eliciting
evidence from child witnesses due to policies that reduce the likelihood of
contradictory accounts (Lanballe & Davik, 2017) and suggestibility
(Baugerud & Johnson, 2017), consequently contributing to a more effective
justice system.

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Suspected abuse

In
the UK, suspected child abuse is initially dealt with by social workers
(Radford et al., 2011), and, if a claim is substantiated, the child is then
subjected to medical examinations and interviews with police (Wood &
Garven, 2000). Gudbrandsson (2010) found that the process of being transported
to and from intimidating settings of perceived authority, such as police
stations, leads to ‘secondary traumatisation’ for the child. Secondary traumatisation
is the result of abused children being required to relive their abuse on
numerous occasions (Korkman, 2017). This, alongside the negative connotations
of police stations as ‘for criminals’ and hospitals ‘for sick people’, increases
children’s anxiety in an already anxious situation (Baugerud & Johnson,
2017), which has been shown to significantly reduce the accuracy of children’s
memory recall (Hadwin et al., 2005). Hence, the UK system risks diminishing the
veracity of information even at the initial stage of disclosure.

The
Norwegian system, on the other hand, demands that exploratory interviews for
suspected cases of child abuse are substantiated by social workers, who then
refer children to a Barnahus (a ‘child’s house’) for investigative interviewing
(Langballe & Davik, 2017). Each of the 11 Barnahus in Norway is located within
a residential area and decorated in a homely manner (Stefansen, 2017). This is
based on the concept of “aesthetic-spatial support” (Bjornholt, 2014), whereby
the Barnahus avoids negative connotations associated with intimidating professional
settings, replacing them with “an atmosphere of ease” (Edwardsson et al. 2005,
p.344). Some critics have argued that the relaxed internal staging of the
Barnahus might encourage children to play rather than engage (Langballe &
Davik, 2017); however, most children report finding the Barnahus aesthetic soothing,
not over-stimulating (Olsson, 2017). This is contrary to children in the UK
system, who report anxiety during the process of transportation to and from
official settings (Johansson, Stefansen, Bakketeig, & Kaldal, 2017).
Resultantly, the Norwegian Barnahus system is superior to the UK system even at
the first stage of initial disclosure by reducing any effects of anxiety and secondary
traumatisation on a child’s testimony.

Investigative forensic interview

Following
disclosure, children are subject to investigative interviewing. In England and
Wales, the forensic interviewing of children was reconceptualised in 2001 as
the interdisciplinary and joint responsibility of both the police and social
services (Home Office, 2001). Despite the theoretical underpinnings of this
approach remaining in policy, economic restructuring since has resulted in a reduction
in joint interviewing opportunities (Lamb et al, 2013). Resultantly, following separate
interviews with social services and medical professionals, children are interviewed
again by the police. Repeated interviews with numerous individuals who have
been differentially trained may lead to testimonies becoming contradictory and
thus, reducing the chance of charges being brought (Gekoski & Horvath, 2016).
Hence, the current UK system whereby children are interviewed by a myriad of
professionals trained in numerous methods does not appear to be constructive in
the elicitation of evidential statements from children.

Furthermore,
police officers in the UK currently lack the specialist interpersonal and
interviewing skills necessary for eliciting information from children (Agnew,
Powell, & Snow, 2006). This is of particular concern when we consider that,
due to a relatively impoverished knowledge base, children are susceptible to
suggestions from adults – particularly those in an obvious position of
professional authority, such as police interviewers (Ceci & Bruck, 1995; Brown
& Lamb, 2015). This has led to claims that interviews led by the police do
not enable children to provide the best possible testimony (Lamb et al, 2008). However,
research on rapport-building has found that reluctant children’s quantitative
contributions to substantive parts of an interview are greatly improved
following a rapport-building session (Wood et al, 1996; Lamb et al, 2008). Resultantly,
police who are aware of the effects of the perceived power dynamic on a child’s
anxiety levels, and who take steps to overcome these social boundaries, could
greatly improve the quality of a child’s testimony in the UK (Lamb &
Orbach, 2009).

            If these steps were taken, the UK would be adopting an
approach not dissimilar to that of the Norwegian Barnahus (Langballe &
Davik, 2017). Unlike other nations who have adopted Barnahus, Norway is
explicitly police-oriented in its approach (Stefansen, 2017). Children are
interviewed once by a specially-trained police officer (Korkman, 2017) whilst
lawyers and multi-agency representatives ‘co-hear’ from an adjacent monitoring
room (Gudbrandsson, 2010). The interview is recorded, and cross-examination
questions communicated to the interviewer. Rapport-building is compulsory,
based on evidence that this will elicit more evidential statements and in turn,
facilitate the conviction of more child sexual offenders (The Rights of the
Child in Norway, 2016). Following the implementation of these policies, more positive
interview outcomes have been reported (Myklebust, 2017) which Baugerud &
Johnson (2017) posit is due to the reduced stress of the child. As reports from
the UK show that less than one-fifth of child abuse cases proceed to trial
(Gallagher & Pease, 2000), the significance of eliciting permissible
evidence during this pre-trial stage is critical. Resultantly, adhering to
empirically-supported practice during interview, as the Barnahus system does, results
in better quality testimony and lower levels of case attrition (Davis, 2000).

The trial

            If claims of child abuse are substantiated during the
investigative period, a case will continue to trial. In the Norwegian system,
the investigative interview undertaken in the Barnahus also serves as court
testimony (Gudbrandsson, 2010). The interview is conducted once the alleged
perpetrator is charged with an offence and before they have been indicted.
Consequently, it is only necessary to interview the child once as part of a “one
door policy”, where the child’s participation is fully conducted within the
Barnahus (Stefansen, 2017). A child’s participation in the legalities of the
case therefore ceases immediately once the video recording of their testimony
is played in court (Oxburgh, 2016). On the other hand, the role of the court in
the UK is primarily adversarial, meaning it acts as a referee between the
prosecution and defence (McEwan, 1998). Despite the UK adhering to an official
policy to give priority to cases involving child witnesses, some Crown Court
cases can take over a year from the time the defendant is charged to the day
the case is completed (Ministry of Justice, 2011). This has been shown to have
a significant impact on a child’s anxiety level for that period (Caprioli &
Crenshaw, 2017), and reduce the clarity of their responses during
cross-examination (Saywitz, 2002).

The
anxieties children face appearing in court in the UK have reportedly been somewhat
remedied by the introduction of intermediaries for vulnerable witnesses under
the age of 18, as well as of video cross-examinations as per the Youth Justice
and Criminal Evidence Act 1999 (Plotnikoff & Woolfson, 2015). Despite this,
children are still subject to intimidation, suggestibility, and compliance
within the UK procedure of cross-examination (Saywitz, 2002). Zajac and Hayne
(2003), for example, found that the accuracy of child witnesses severely
declined as a result of being interviewed in a cross-examination style
customary to a courtroom. Furthermore, defence lawyers have been shown to
provide option-focused prompts to children in court which increase the
likelihood of contradictions in a child’s testimony, as they exert greater
pressure for a child to ‘choose’ an answer (Lamb et al, 2001). The increased likelihood
of inaccurate statements opens a child’s testimony to scrutiny by
cross-examiners and potentially threatens the case (Ceci & Bruck, 1995).
This suggests that, despite the measures taken to reduce a child’s anxieties in
court in the UK, the best practice for eliciting accurate evidential statements
from children is more in line with video-recorded testimony played during
trial, as in the Norwegian procedure (Myklebust, 2017).

Conclusion

            Comparative evaluations of the Norwegian and the UK
system for interviewing child victims of abuse demonstrate the benefits of the
former in eliciting evidence. From the initial disclosure of abuse, the
Barnahus system reduces anxieties and improves the evidential value of a
child’s testimony by employing specially-trained investigative interviews to
conduct interviews in a relaxed setting. Furthermore, it ensures that children
are not interviewed by numerous individuals in several settings, which could
lead to conflicting testimonies, but rather, are subject to one investigative
interview which is later used as video evidence if the case proceeds to trial.
This reduces the impact of delayed recall on a child’s accuracy during
cross-examination, which is currently a significant barrier to justice in the
UK system. It also eliminates the effects of leading questions or
suggestibility on a child’s testimony. Consequently, the Norwegian Barnahus
model provides not only a more cost-effective and less traumatising investigative
process (Gudbrandsson, 2010), but also allows a child to provide evidential
testimony to the best of their ability, free from the limitations that delayed
recall, anxiety, or suggestibility might bring.