One of the most common ways to adduce evidence is through a witness. Who can be a witness and how is the procedure different if the witness is a child?
Competence and Compellability
A witness is competent if he or she as a matter of law be called to give evidence. A witness is compellable if he or she is competent as a matter of law, he or she can then be compelled by the court to give evidence. The general common law rule states that all persons are competent and all competent persons are compellable.
Youth Justice and Criminal Evidence Act 1999
Youth Justice and Criminal Evidence Act 1999 section 53 (1) clearly states that at every stage in criminal proceedings all persons are (whatever their age) competent to give evidence. Nevertheless children under the age of fourteen are not allowed to give sworn evidence. On the contrary it is argued that children of any age can give evidence as competency depends on their understanding not their age.
Evidence under Oath
Children under the age of fourteen do not have to take the oath. Children who are above the age of fourteen, the court will decide whether the child should take the oath. This depends on whether the child understands the seriousness of the event and the absolute necessity to tell the truth.
Section 16 (1) (a) and 21 (1) (3) of Youth Justice and Criminal Evidence Act 1999 states that a child witness is eligible for special measures as he or she is under the age of seventeen. Hence the court must provide special measures. The special measures are to provide video-recorded interview to stand as evidence-in-chief and to provide evidence that is not given by video recording by means of live link
Nevertheless the court may decide not to take any special measures if given regard to the situation and circumstances, the court feels it is in the interest of the justice not to accept a video recording of the witness’s evidence-in-chief. In addition the court can also decide not to take any special measures if neither of the special directions will maximise the quality of the witness’s evidence.
A child witness has a right for special protection under section 21 (1) (b) of Youth Justice and Criminal Evidence Act 1999 where he or she is a witness to one or more offences declared in the Youth Justice and Criminal Evidence Act 1999 section 35 (3). These offences are, sexual offences under Part 1 of the Sexual Offences Act 2003 or the Protection of Children Act 1978 section 35 (3) (a), kidnapping, false imprisonment or child abduction under Protection of Children Act 1978 section 35 (3) (b), child cruelty under Protection of Children Act 1978 section 35 (3) (c) and any other offence which involves an assault on or injury or threat to any person under Protection of Children Act 1978 section 35 (3) (d)
The procedures to apply for a special measures direction could be found in the Criminal Procedures Rules, r 29