The cross-examination of the four- year-old girl in the Baby Peter-related rape trial raised uncomfortable questions about how the justice system treats child witnesses.

At times the child — just 2 when raped and the youngest sexual assault victim to give evidence in court — looked distressed and perplexed, finally lapsing into silence. While the jury decided that she was a credible witness and found the man guilty of rape, he has applied to appeal against his conviction and life sentence on the grounds that she was too young and unreliable to be a competent witness.

How does her experience match those of other witnesses? The NSPCC tomorrow publishes Measuring Up?, the largest study of young witnesses’ experiences in England, Wales and Northern Ireland. Researchers interviewed 182 people aged between 5 and 19, mostly witnesses in cases of violent or sexual offences, parents and professionals from witness support teams.

The study sets out policies and guidance against what really happens. It highlights “cavernous gaps”, says Barbara Esam, an NSPCC lawyer, including average delays of more than a year in cases getting to the Crown Court despite the Government’s pledge to fast track them.

A key area of the research focuses on cross-examination. More than half the witnesses felt that they were cross-examined fairly and 65 per cent said they would be willing to give evidence again, although many qualified that by saying: “Only if I absolutely had to.”

Yet 65 per cent experienced problems of comprehension, with questions coming too fast or having their answers talked over. More than half who had a problem did not tell the court, even though they had been advised that they could do so; 57 per cent said that they were accused of lying, with most saying it happened more than once. Almost half described the defence barristers as sarcastic, rude, aggressive or cross; 11 per cent of sexual offences victims were asked to show intimate touching on their own body.

If necessary, people under 17 are eligible for help from an intermediary when giving evidence. Yet, in the areas where this special measure was available, the researchers found that 70 per cent had problems with questions or had underlying conditions potentially affecting communication; only one was the subject of an assessment.

Esam says: “The responsibility for identifying the special needs of witnesses lies with the police and then the Crown Prosecution Service [CPS]. The research examples where this didn’t happen beggar belief. We also know there are excellent barristers who can ask tough questions in an age-appropriate way and still get their job done. So it’s shocking to find how poor the quality of some cross-examination is.”

Paul Mendelle, QC, vice-chairman of the Criminal Bar Association, is sympathetic to the NSPCC’s concerns. The CBA, he says, runs training to deal with cross-examining sensitively. But Mendelle, a defence barrister at 25 Bedford Row, says: “Defence barristers are duty-bound to put their client’s case and you have to employ the legitimate tools of cross-examination, such as seeking to contradict a witness or catch them out.” But, he accepts, barristers should avoid bad practices. “Cross-examination is not the art of asking questions crossly.”

So what can be done? One answer is more training. Sally O’Neill, QC, of Furnival chambers and immediate past chairman of the CBA, is part of a group producing a report for the Advocacy Training Council on training for cross-examining vulnerable witnesses.

“We know the best way of asking questions — short, simple and without double negatives,” she says. “It is easy to criticise when we get it wrong but it is not always easy to do — though that does not mean we mustn’t constantly try to improve the process.”

One way to keep children out of the courtroom would be through prerecorded cross-examination, recommended 20 years ago by the Pigot Report and included in the Youth Justice and Criminal Evidence Act 1999.

The CPS, which has strengthened its child witness guidance in response to the NSPCC research, is taking part in a study on how it could work practically. Nadine Tilbury, a senior policy adviser, says: “We are looking at two things. One is trying to take the child out of the courtroom and the second is trying to bring forward the giving of evidence so that the child is out of the system as soon as possible.” But O’Neill warns of practical difficulties because the defence may not be ready.

So, given the distress felt by many witnesses, should there be a minimum age for giving evidence? No, says Esam. “There is clear law that the test for competence is based on the level of the witness’s understanding — not on his or her age. If you set a limit, then it is an absolute message to perpetrators to choose a child young enough not to be allowed to give evidence.”

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