Page last updated at 16:25 GMT, Monday, 24 May 2010 17:25 UK

Putting children on trial for an adult crime

Courtoom sketch of defence barrister Linda Strudwick cross-examining the girl
In evidence to the court, the girl contradicted what she had earlier told police

By Andy McFarlane
BBC News

Two boys, aged just 10 and 11, have been found guilty by an Old Bailey jury of trying to rape an eight-year-old.

The young girl had told the court she was raped in a field near her home in west London in October 2009, but barristers for the boys said they had been playing a game like doctors and nurses.

The boys were cleared of the more serious charge of rape.

The case has raised many questions about how best to deal with such young complainants and witnesses in adult courts.

Measures were taken to try to put both the young defendants and their victim at ease.

Paul Mendelle QC, chairman Criminal Bar Association

Children appearing in adult courts present very difficult situations. Children may not understand some complex questions and you may get misleading answers.

There are methods by which you can ensure that questions are phrased more simply and are direct questions of the variety 'who/what/where'.

It's very difficult in cross-examination. We do tend to ask leading questions that suggest the answer - that's the skill. But perhaps that's precisely the sort of question we would ask an adult that we may not always be able to ask a child.

Professional intermediaries can write a report beforehand to suggest areas of weakness where witnesses might not understand. This can help both the prosecution and defence but raises funding issues.

It's a matter for debate whether we should look again at the age of criminal responsibility and the extent to which juveniles are brought into criminal courts.

The CBA represents up to 4,000 barristers

Wigs and gowns were removed, while the judge sat at a less imposing height in the chair normally occupied by the court clerk. None of the children involved in the case can be named.

Rather than being locked in the high-security dock, the boys sat in the well of the court - alongside their mothers.

Even so, as the older boy arrived, shirt and tie under a jacket, his nerves were evident.

As his co-defendant walked in to court, smart cardigan over a shirt, he smiled politely at the lawyers around him.

It must have been difficult for the jury to consider that they could have been responsible for such a crime.

The prosecution's opening statement was shocking in its simplicity: "Rape by two boys, still at primary school, of a girl even younger than them."

Prosecutors went on to allege the two boys - both 10 at the time - had lured this small and vulnerable girl to several places on a west London estate: a block of flats, a nearby bin shed and through a gap in a fence to a field.

They said they were biding their time until they were at a sufficiently secluded spot to carry out an unimaginably cruel act.

They had even taken the girl's scooter and were refusing to give it back unless she agreed to their demands, prosecutors claimed.

The case was allegedly backed up by the evidence of a five-year-old boy, who had told the mother of one of the defendants that her son was in a nearby field "hurting" the girl.

The alarm was raised by the girl's mother who, seeing the girl unusually quiet afterwards, asked what was wrong.

"[The boys] have been doing sex with me," came the alleged reply, before the girl added they had told her not to tell anyone.

"I was absolutely stunned," the mother told the court. "She was very, very embarrassed. She was squirming."

Teddy bear

Her mother had driven straight away to confront the boys, who insisted they had done nothing wrong.

A specially-trained police officer spoke to the girl the next day and a video of the interview was played in court.

The jury watched as she clung to a teddy bear, playing with it absent-mindedly while reliving the events of 27 October last year.

There appeared to be neither malice nor bitterness in her account - just the simple recollection you might expect from a child.

She rubbed her eyes, hiding her face, as she became embarrassed and her voice dropped to a whisper at times.

I don't think anyone who has sat through this trial would believe that the system we use is ideal
Mr Justice Saunders

Never using the word "rape" - perhaps a term unknown to most eight-year-olds - she described in plain language her version of what happened that day.

The video of a second interview was played to the court, in which the girl was pictured wearing her school uniform and restlessly clambering on the chair.

In it, a specialist police officer asked how the girl felt when the boys were having sex with her. The girl said she could not remember.

Asked what she had been thinking, the girl gave the odd reply: "I was thinking I could go down the shops with my mum and get some sweets."

But she remained unwavering in her account of the boys colluding to lift her up by the hips and have sex with her.

As the girl was shown on the courtroom monitors, holding the hand of a court officer who helped her into her seat, her vulnerability was obvious.

She sucked on a bottle of blackcurrant juice the way a baby might a dummy.

When asked by defence barristers whether she had been "telling the police about things that didn't happen", the girl denied this.


But under further cross-examination, she gave a very different account.

It was suggested that, in fact, the boys had not had sex with her, had they?

Confirming this, she replied: "No."

Later, she was asked if she had told her mother the boys had taken off her underwear.

Defence barrister Linda Strudwick suggested: "You didn't want your mum to think you had been naughty?"

"Yeah," came the reply.

When the judge then asked what the girl had been worried about, she replied: "No sweets if it (sic) found out I had been naughty."

Had it been an adult complainant, the judge noted during legal argument, the prosecution would never have continued with the case.

Defence barristers urged the judge to dismiss the case on the grounds the girl's evidence was so "tenuous, inherently weak and inconsistent" that it was dangerous to put it before a jury.

Any medical evidence was "neutral" and neither of the boys' DNA had been recovered from the girl's clothing - although the court heard it would not necessarily have been there.

But Mr Justice Saunders dismissed these calls. Instead, he accepted the girl had been "extremely tired".

Prosecutor Rosina Cottage suggested the cumulative effect of this fatigue, being asked leading questions - including many she didn't understand - and barristers suggesting the youngster had been "naughty", may have taken its toll.

Mr Justice Saunders accepted it would not take a girl of eight long to realise that if she "gave the answer which was wanted by the questioner, the questioner would move on" and so the experience would be "very much easier".

Indeed he recalled that, at one point during cross-examination, he had told her: "Miss Strudwick is a very nice lady but you don't have to say 'yes' to everything she asks."

The jury could conclude that she was "not actually agreeing in any meaningful way to what was being suggested to her," said the judge.

In the event, the jury found the boys guilty of attempted rape, but cleared them of rape.

However, Mr Justice Saunders had perhaps already summed up everyone's feelings in saying earlier: "I don't think anyone who has sat through this trial would believe that the system we use is ideal."

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