Foreign Perspectives

This seems to have been one of the most widely discussed trials around the world to date and it seems certain that the discussion has a ways to go with an appeal seeming quite likely if not yet certain.

The grounds for the appeal seem to be coming from two basic angles namely that the child’s evidence was unreliable because she was so young and that the defendant didn’t get a fair trial because of all the discussion that’s been going on by way of the Internet around the world and particularly because said discussion could hardly be missed in the UK by the jurors. I’m calling him “the defendant” to avoid legal issues but if you want to know his name, it takes a few seconds to find it courtesy of google as he’s named on loads of non-UK sites.

The “fair trial” argument will likely hinge on article 6 of the Human Rights Convention of which entitles everyone to a “fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. The problem being that had the jurors seen some of the discussion knocking around the Internet over the last few months then it would be quite possible that they would not meet the requirement that they be impartial. That’s a particular problem in the British court system as it starts from the premise that the jurors know nothing about the case that they are concerned with other than the information which they acquire in the course of the trial itself. Were the appeal for this case to be upheld for this reason it seems certain that the presumption of ignorance would need to be changed; doing so wouldn’t mean jail time for this defendant but would at least sort out what is becoming a serious problem for high profile cases that will come up in the years to come.

The age of the child is an interesting argument from a psychological perspective. Can a 4 year old be relied on to accurately recount events that occurred when they were 2? Early childhood memories are quite a big issue in psychology and it’s very, very difficult to avoid implanting memories in young children of events that just didn’t happen. At the trivial level this can be as simple as asking leading questions rather than open questions but even open questions need to be carefully phrased with young children. It is fortunate that her recollection came from a time when she could speak as few people can recall anything before that and little in any detail. Quite why that should be so is something of a mystery but suggests that memory is either dependent on speech or requires developments in the brain that happen to coincide with occur at the same time as speech development. Actually implanting false memories was one of the assignments set by a Yale psychology course so it’s surprisingly easy to do even for those of university age never mind young children.

Although this is one guy who needs the key thrown away, if his appeal does succeed on the article 6 grounds, let’s hope that the British legal system learns from the experience and abandons the presumption of ignorance on the part of the jury. Should it succeed on the grounds of the competence of a child to testify then that’s potentially a very serious problem for any children in similar circumstances in the future.