Strand, London, WC2A 2LL |
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B e f o r e :
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TJ |
Applicant |
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RC |
1st Respondent |
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RR (by their Children's Guardian, William McGuigan) |
2nd Respondent |
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Bronwen Jones (instructed by Beck Fitzgerald) for the 1st Respondent
Mark Blundell (instructed by NYAS) for the 2nd Respondent
Hearing dates: 3rd - 5th October 2023
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Crown Copyright ©
Mrs Justice Judd :
Background
The parties' respective cases
The law
"To these matters, I would only add that in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record-keeping or recollection of the person hearing and relaying the account. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural – a process that might inelegantly be described as "story-creep" may occur without any necessary inference of bad faith".
"Once again, [...], it is important to understand why the cardinal principle of the need to retain an open mind when considering allegations of sexual abuse has such a long pedigree. Mr Bagchi and Ms Bains have drawn the court's attention to a paper by Ceci and others entitled Children's Suggestibility Research: Things to know before interviewing a child (Anuario de Psicología Jurídica 25 (2015) 3-12) in which Ceci and his fellow authors highlight the operation of "confirmation bias" in the context of allegations made by children, being a tendency, identified in the research, for a person to be biased towards information that confirms their own personal beliefs. In the paper the authors note, in the context of research by Bruck amongst others, as follows with respect to the potential consequences of confirmation bias when interviewing children:
"A person's established beliefs are often difficult to change and resist contradictory evidence (Ross, Lepper & Hubbard, 1975). This phenomenon, referred to as "confirmation bias", can have especially detrimental effects when working with child witnesses. If an interviewer enters a room, prepared to question a child, and brings along pre-established beliefs about the case or the accuracy and credibility of the child, the interviewer may unintentionally put disproportional weight on some statements the child makes while ignoring others. If the interviewer's initial suspicions are incorrect, this could create a false report. Confirmation bias is potentially a problem for all people who may interact with a child witness, even professionals in the field of forensics, human development and social science. In fact, experts tend to be more confident in their evaluations of witnesses than others, despite not necessarily being more skilled at distinguishing accurate from inaccurate statements (DePaulo et al., 2003; Wessel, Drevland, Eilertsen, & Magnussen, 2006)."
"Within this context, the Court's assessment of the ABE interviews will be informed by the need for caution regarding children's recollection that I set out above when considering good practice with respect to the handling of initial allegations of child sexual abuse, which need for caution constitutes one of the fundamental rationales for the ABE Guidance (see Re B (Allegation of Sexual Abuse: Child's Evidence) at [34-35] and the ABE Guidance at [2.162]). Namely, once again:
"i) Children, and especially young children, are suggestible.
ii) Memory is prone to error and easily influenced by the environment in which recall is invited.
iii) Memories can be confabulated from imagined experiences, it is possible to induce false memories and children can speak sincerely and emotionally about events that did not in fact occur.
iv) Allegations made by children may emerge in a piecemeal fashion, with children often not reporting events in a linear history, reporting them in a partial way and revisiting topics.
v) The wider circumstances of the child's life may influence, explain or colour what the child is saying.
vi) Factors affecting when a child says something will include their capacity to understand their world and their role within it, requiring caution when interpreting children's references to behaviour or parts of the body through the prism of adult learning or reading.
vii) Accounts given by children are susceptible to influence by leading or otherwise suggestive questions, repetition, pressure, threats, negative stereotyping and encouragement, reward or praise.
viii) Accounts given by children are susceptible to influence as the result of bias or preconceived ideas on the part of the interviewer.
ix) Accounts given by children are susceptible to contamination by the statements of others, which contamination may influence a child's responses.
x) Children may embellish or overlay a general theme with apparently convincing detail which can appear highly credible and be very difficult to detect, even for those who are experienced in dealing with children.
xi) Delay between an event recounted and the allegation made with respect to that event may influence the accuracy of the account given.
xii) Within this context, the way, and the stage at which a child is interviewed will have a profound effect on the accuracy of the child's testimony".
The evidence
The allegations
Assessment of the witnesses
Discussion