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70. UK Home Office, Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable or Intimidated Witnesses, including Children, 2000.71.UNODC/UNICEF, Handbook for Professionals and Policymakers on Justice in Matters involving Child Victims and Witnesses of Crime, 2009.68 | Penal Reform International | Protecting children’s rights in criminal justice systems
CHAPTER 55. Questioning and cross-examinationInternational standards state that children should be questioned in a child-sensitive manner to reduce potential intimidation and judges play an important role in ensuring this. Experience has shown that this is best achieved when questioning is undertaken in the format of a talk with the child as opposed to a one-sided or adversarial examination. While civil law jurisdictions often do not allow for cross-examination of children, common law countries do and where this is the case, the proceedings should be supervised as far as possible to prevent harm coming to the child. Further to this, it should be recognised that a child’s attention span is much less than that of an adult and appropriate breaks in questioning should be allowed where necessary, or limits enforced by the judge to restrict the number of questions put to a child, in order to keep the child’s attention and get the best evidence possible. Children should only have to face questioning once during the trial, apart from in exceptional circumstances. In jurisdictions where a child is allowed to be cross-examined, judges must carefully monitor and supervise the kind of questions and the way in which questions are asked. They should stop certain tactics used by defence lawyers such as:•Asking irrelevant questions designed to intimidate or upset the child;•Asking questions rapidly or repeatedly to put the child off or confuse him or her;•Asking questions in language beyond a child’s developmental age; •In the case of sexual abuse specifically, inferring the child has consented to the activity or asking a child questions relating to their sexual history. These tactics can amount to intimidation or harassment of the child which is not only traumatic and stressful for him or her, but will not provide accurate evidence for the case. A child’s understanding of the questions put to them can hinder their ability to give accurate testimony and where parties are allowed to question a child directly, they should be reminded to do so in plain language and with consideration for a child’s level of understanding and vulnerability. The solution used by some States is to allow special intermediaries to communicate with the child when it is thought by the judge that they have misunderstood, or do not fully understand a question put to them. These intermediaries may be a specially appointed counsel, a psychologist or expert, or any other person designated by the court.