John Halley: Legal system could traumatise girl abused by Christopher Daniel all over again
The decision by a sheriff to grant an absolute discharge in the case of Christopher Daniel, the 18-year-old dental student who sexually abused a six-year-old girl, made headlines in Britain and beyond.
Initial stories highlighted that the victim, who was eight at the time, was questioned in a recorded investigative interview by police and social workers. The recording could not be played in court and the child had to give evidence in chief for two hours and was then cross-examined for another two. Her evidence must have been sufficiently cogent for a conviction. In the defence case a video of the child interacting with her grandfather was played.
Subsequently, the case has been extensively covered in the media and as a consequence of this and the court proceedings the child may have suffered secondary victimisation. Secondary victimisation, inflicted by the system itself, is unacceptable, especially for an eight-year-old child victim. And it is avoidable.
The 1989 Pigot Report recommended the pre-recorded capture of evidence to ensure that children should not be re-victimised by having to give evidence in court. The UK has been struggling for 30 years on how and whether the “full Pigot” model could be implemented.
In 2019 Chile passed Law Number 21.507, which aims to prevent secondary victimisation of child victims of crime. It provides for video-recorded interviews to be conducted using a validated and monitored questioning technique and structure and for specialist court questioning. This law was enacted after a campaign led by the Fundación Amparo y Justicia with the motto No pregunten mas! (No more questions!).
In Scotland, senior judges have implemented improvements and controls in the most serious cases. Courts impose strict timetables and scrutinise questions. However, most cases proceed at summary level.
A review of evidence and procedure began in 2015. It is the manner in which children are questioned — in investigative interviews by police officers and social workers, in court by lawyers and judges and in children’s hearings (by lay volunteers) — that is the key to stopping secondary victimisation by repeated questioning.
It is not known how the lay members of children’s hearings question children. Only when the investigators, lawyers and decision-makers learn to use and understand consistent, validated and monitored techniques for questioning will children be spared the trauma of secondary victimisation. PF v Daniel highlights the urgent need to stop this.
John Halley is an advocate and part-time sheriff and writes here in a personal capacity. This article first appeared in The Times.