Abuse allegations are an ever-developing field in legal and public discourse. 
This section provides in-depth commentary on current issues analysing leading controversies and legal decisions.

Misconceiving the evidence – competence and context in child abuse trials

“Despite justified concerns about some aspects of the way in which it was conducted, the ABE interview shows an utterly guileless child, too naive and innocent for any deficiencies in her evidence to remain undiscovered, speaking in matter of fact terms. She was indeed a compelling as well as a competent witness. On all the evidence, this jury was entitled to conclude that the allegation was proved. Unless we simply resuscitate the tired and outdated misconceptions about the evidence of children, there is no justifiable basis for interfering with the verdict.”

With these words Lord Chief Justice Judge despatched the appeal of Stephen Barker against his conviction for the anal rape of his two year old step-daughter. (R v Barker[2010] EWCA Crim 4)

As the appellant was the step-father of Peter Connolly, ‘Baby P’, and had previously been convicted, together with the mother and his brother, of being responsible for the horrific trail of injuries and neglect that resulted in the toddler’s death, we should not be surprised that this subsequent conviction and appeal judgment raised no critical interest in the media.

It is difficult to feel anything other than a sense of revulsion when confronted with the facts of the Peter Connolly case – made all the more poignant by it happening under the constant gaze of social services, while doctors and other health professionals turned a blind eye to his plight.

But the circumstances of the rape case deserve separate consideration, not merely because, however despicable a defendant might be, he is entitled to a fair hearing, but because by virtue of this case, justice itself was on trial. 

Hailed as a ‘historic judgment’ by child abuse campaigner and prospective politician Esther Rantzen, the Barker judgment has arguably destroyed the remaining judicial safeguards for the innocent  against wrongful prosecution and conviction stemming from successive legislative reforms since the 1980s.

While the Court of Appeal may be exercised about ‘tired and outdated misconceptions’ about children’s evidence, the fact is that many of the well-intended reforms have allowed for partial and  ideological pseudo-scientific notions to gain ascendancy – and nowhere is this more apparent than in the Barker judgment.

Firstly there is the issue of the reliability of young children’s evidence.  This is posed by the Court of Appeal as a dichotomy between ruling out young children’s evidence as incompetent per se, or allowing it as the basis of credibility for the jury subject to indications of incomprehension by the witness.

‘The tired old arguments’ alluded to are that young children are not capable of giving accurate evidence.  This is indeed not the case.  Both scientific research and common sense experience indicates that even very young children are able to report their own experience with literal precision. 

But there are caveats.  Young children have a limited memory span for experience – so unless something is reported near to the event, its reliability is severely compromised.

Following from this is their suggestibility about the past – an absence of memory may be substituted with make-believe, particularly if this is cued or approved by adults.

Repetition of the errors reinforces and inflates the story and while a young child may be able to distinguish between telling the truth and lies - and fact and fantasy - on an immediate level, the child will not necessarily recognise this in relation to the story.   

The end result may be apparently convincing and compelling but false evidence which, contrary to the views espoused by the Courtof Appeal, is not easy for juries or anyone else to detect at face value. 

For while some of the ‘old arguments’ may have been based on myths, they have been superseded by a new hegemony of myths –centred on an ideological belief in the inviolability of the testimony of a child in sexual abuse cases.

Research shows that in assessing reliability, what is of particular importance is not simply techniques used to generate the evidence, but the context of the case as it develops, and the characteristics of the child.