One of the most important ways in which evidence is given in a trial in the criminal courts is through a witness. A witness is someone who has valuable knowledge about the alleged crime, or about the character of the defendant or, for instance, expert knowledge about a related issue that can help the court reach an informed verdict.
Children can be witnesses in a criminal trial, but there are special procedures for child witnesses because of their age and vulnerability.
Can a child be competence and ‘compellable’?
As a general rule, a witness is competent if, as a matter of law, they can be called to give evidence; and if a witness is competent, they can be compelled by the court to give evidence. According to the common law, all persons are competent, and all competent persons are compellable. But what about children?
Youth Justice and Criminal Evidence Act 1999
Under the Youth Justice and Criminal Evidence Act 1999, section 53 (1) clearly states that at every stage in criminal proceedings all individuals are (whatever their age) competent to give evidence. A child’s competency depends on their understanding and not their age.
However, children under the age of 14 are not allowed to give sworn evidence – they will give their evidence unsworn. Where the child witness is above the age of 14, the court will decide whether they should take the oath and give sworn evidence. This depends on whether they understand the solemnity of a criminal trial and that taking an oath places a particular responsibility on them to tell the truth.
What ‘Special Measures’ are available for children?
Child witnesses under the age of 18 will automatically be eligible for special measures under section 16 of the 1999 Act. These special measures include providing for a video-recorded interview to be eligible as evidence-in-chief, and to provide evidence that is not given by video recording by means of live link. However, the child can choose to opt out of these special measures and give live evidence in court, but the court must agree to this.
The video evidence will be automatically admissible in court – unless the court decides (on an application) that this would not be in the interest of the justice, or it would not maximise the quality of the child witness’s evidence.
What about ‘Special Protection’?
In addition to special measures, a child witness has a right to ‘special protection’ under section 21(1)(b) of the 1999 Act if they are a witness to one or more offences under 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)
In these situations, ‘timely’ special arrangements can be put in place for the child’s reassurance. For an example, cross examination could be held in private, ahead of the trial itself.