Procedure & Evidence

Giving Evidence

Where evidence is being given by a child through video link, neither the judge, nor the barrister or solicitor involved in the examination of the witness shall wear a wig or gown.

This is extended by the 2017 Act  to the giving of evidence, in all circumstances, by children under the age of 18 years. The requirement not to wear a wig or gown is no longer limited to those instances where a child gives evidence by video link.

The 2017 Act provides for the giving of evidence from behind a screen or other similar device. A judge may direct the giving of evidence by a child from behind a screen (or other appropriate device) in the courtroom.

The facility of a screen seeks to  protect a child from potential intimidation, or feeling of intimidation, by the sight of the accused while  giving evidence in court. In such circumstances, it may be more appropriate for the child to give evidence through a live television link but, for various reasons, the child might wish to be heard in person before the judge, and jury when present, and this section ensures such provision is available.

A direction by the judge for a child to give evidence from behind a screen  may  be given in the interests of justice, such as ensuring that a child can give a full account of the acts complained of without feeling intimidated.

However, the interests of justice also demand that the accused be able to see and hear the witness giving evidence. For practical and other reasons, the judge, jury (if a jury trial), legal representatives and court appointed persons, such as an intermediary, will need to be able to see and hear the witness giving evidence and be seen and heard by the witness.

It is possible that not every courtroom could accommodate the type of screen envisaged in this section. It is possible to transfer of proceedings where the court is satisfied that it is desirable that evidence be given in the proceedings from behind a screen.

Cross-Examination

The 2017 Act prohibits  personal cross-examination of a child witness by the accused where he or she is charged with

• sexual offences,
• offences involving violence or the threat of violence to a person,
• child trafficking and pornography offences,
• offences under the Criminal Law (Human Trafficking) Act 2008 and
• offences consisting of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of an offence mentioned above

Where the child is under the age of 14 years, the court must prohibit personal cross-examination by the accused (unless the interests of justice require otherwise) and where the child is under 18 years of age the court may prohibit such cross-examination.

There is provision for  alternative cross-examination where an accused person is prohibited from personally cross-examining a child witness. The court must invite the accused to make arrangements for legal representation to act for him or her for the purpose of cross examination of the witness. However, where it becomes clear that the accused has made no such arrangements, it is open to the court to appoint a qualified legal representative to act in the interests of the accused.

The 2017 Act seeks to ensure that the interests of an accused are not prejudiced by the fact that he or she is prevented from engaging in personal cross-examination. The judge must inform the jury that no inferences may be drawn from the fact that the accused has not been permitted to personally  cross-examine the witness or that the cross-examination was conducted by a court appointed legal representative as opposed to a person acting as the accused’s own legal representative.

Video Evidence

The 2017 Act  increases from 14 to 18 years the upper age threshold for out-of-court video recording of a complainant’s evidence. This also applies to a child witness, other than the accused, who is under the age of 18 years. Other g safeguards to protect the rights of accused persons continue to apply.

The application of these provisions and powers is, at all times, subject to the control of the court. Video recorded evidence (or a part of such evidence) must be excluded if the court is of the opinion that, in the interests of justice, it should not be admitted.

Where it is appropriate that evidence is given by video link, and such facilities are not available in the court room at which the trial is scheduled, then the proceedings can be transferred to a court room where such facilities are available. This extends the power to transfer a case to another court room where evidence is to be given behind a screen or other similar device but such cannot be facilitated in the current court room.

Disclosure

The 2017 Act regulates disclosure of the content of third party counselling  or therapy records in sexual offence trials. The disclosure of counselling or therapy records in the context of criminal proceedings, especially in relation to sexual violence, touches on a number of sensitive issues and balancing of rights.

The right to a fair trial for an accused has to be acknowledged. However, so too does the right of the victim not to feel further violated in the criminal justice process. There is a process for the disclosure of such records, where appropriate. A decision to disclose this type of record to the defence side will be the subject of a separate pre-trial hearing and the records will be disclosed only to the extent where the court considers that it contains information relevant to the issues at trial.

These proposals were developed on foot of recommendations in the fourth report of the Special Rapporteur on Child Protection but will apply to all victims of sexual offences.

Application to Disclose

The prosecutor must disclose the fact of the existence of a “relevant record”, i.e., a counselling or therapy record, to the defence, he or she cannot disclose its content without the leave of a judge of the court concerned.

The  accused must  make a written application to the court if they wish to seek disclosure of the content of a counselling or therapy record. The “disclosure application” must specify the grounds relied on to establish that the record is likely to be relevant to the trial or to  the competence of the complainant or a witness to testify.

There is a list of factors, none of which, on its own, is sufficient to establish relevance in the context of a disclosure application. It includes assertions that the record may relate to the credibility of the complainant, or may disclose a prior inconsistent statement of the complainant.

The accused must  put the parties concerned, i.e. the complainant, the person who has control or possession of the record and any other person to whom the accused believes the relevant record relates, on notice that a disclosure application is being made. The judge can, at any time, order that a disclosure application be notified to any person to whom he or she believes the relevant record may relate.

Disclosure Procedure

In determining, at the hearing whether the content of the counselling record should be disclosed to the accused the court shall take the following factors, in particular, into account:

• the extent to which the record is necessary for the accused to defend the charges against him;
• the probative value of the record;
• the reasonable expectation of privacy with respect to the record;
• the potential prejudice to the right to privacy of any person to whom the record relates;
• the public interest in encouraging the reporting of sexual offences;
• the public interest in encouraging complainants of sexual offences to seek counselling;
• the effect of the determination on the integrity of the trial process;
• the likelihood that disclosing, or requiring the disclosure of, the record will cause harm to the complainant including the nature and extent of that harm.

The judge must  hold a hearing for the purpose  of determining whether the content of the counselling or therapy record should be disclosed to the accused. The owner of the record, the complainant and any other person to whom the record relates is entitled to appear and be heard at such a hearing.

Order of Disclosure

The judge can order disclosure of the content of the relevant record to the accused following a hearing. The judge has to be satisfied that the disclosure application was correctly made and that disclosure is necessary to safeguard the rights of the accused.

Conditions may be attached  to an order such as that a part of the content of the relevant record is to be redacted, or that the relevant record is not to be copied. The record cannot be used in any other proceedings.

The judge must provide reasons for ordering, or refusing to order, disclosure of the content of a relevant record to the accused.  This will ensure clarity for the parties and facilitate effective consideration of an appeal.

The purpose  is that, in normal circumstances, a disclosure application should be made before the commencement of the accused’s trial. This is directed at avoiding delays in criminal trials for sexual offences and thereby adding to the trauma of complainants. However, there may be circumstances, in the interests of justice, where a late application would be justified and the judge is permitted to direct that the accused may make a disclosure application after the commencement of the trial. This is intended to be the exception and not the rule. The judge must be satisfied that there are exceptional circumstances which warrant this course of action.

The public are excluded from the hearing.

Representation

There is provision for  legal representation for the complainant or witness (e.g., the parent of an alleged child victim who participated in the child’s counselling) for the purposes of consideration of a disclosure application. This type of application would be akin to an application by an accused to hear evidence of a complainant’s previous sexual history and, for that reason, it is considered that the same  arrangements with regard to legal representation should be applied.

The above provisions do not apply where the  complainant or witness has expressly waived his or her right to have a request for disclosure of the content of a relevant record determined by a judge.

There is legal aid in respect of representation for an accused who is prohibited from conducting a cross-examination in proceedings related to a sexual offence.