Child Witness

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The Bar Vocational Course Full-Time 2002/2003

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EVIDENCE LG 10
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THE EVIDENCE OF CHILDREN

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_________ Bristol Institute of Legal Practice

Bristol Institute of Legal Practice

The Bar Vocational Course

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_________________________________________ A:\LG10CHDN.DOC 2 Version No: 1 Author: Liz © Bristol Institute of Legal Practice

Bristol Institute of Legal Practice EVIDENCE LG 10

The Bar Vocational Course

COMPETENCE AND COMPELLABLITY OF WITNESSES THE EVIDENCE OF CHILDREN The purpose of this handout is to combine in one document all the provisions relating to children, whether the child is a witness or an offender. CRIMINAL CASES You should bear in mind a number of things: 1. doli incapax

a) children aged under 10: it is irrebuttably presumed that a child under the age of 10 is incapable of committing a crime. b) children between the ages of 10 and under 14: until 1998, there was a rebuttable presumption that a child over 10 but not yet 14 was incapable of committing a crime, and the crime could only be established if the prosecution could prove, in addition to establishing the actus reus and mens rea of the offence, that the child had a “mischievous discretion”. This presumption was abolished by the Crime and Disorder Act 1998 s34, which provides as follows: “The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is hereby abolished.” 2. Competence

In relation to children, two issues of competence are raised i.e. (a) competence to give evidence at all; (b) competence to give evidence on oath; and (c) competence to give evidence unsworn. (a) competence to give evidence

In relation to the child’s competence to give evidence at all, the general rule applies i.e. that all witnesses are competent. See Youth Justice and Criminal Evidence Act 1999 [YJCEA] s53(1): “At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.” This is subject to s53(3): “A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to ____________________________________________________________

_________________________________________ A:\LG10CHDN.DOC 3 Version No: 1 Author: Liz © Bristol Institute of Legal Practice

Bristol Institute of Legal Practice

The Bar Vocational Course

(a) (b) Note: 1

understand questions put to him as a witness , and give answers to them which can be understood.”

the issue of competence may be raised by either party or the court and determined by the court: s54(1)

2 the party calling the witness must prove to the court on a balance of probabilities that the witness is competent: s54 (2) 3 4 (b) any proceedings to determine competence takes place in the presence of the parties but the absence of the jury: s54(6) and s54(4) Expert evidence may be received: s54(5) competence to give evidence on oath.

Competence to give sworn evidence is dealt with in s55. The test is whether the child is aged 14 or over and appreciates the solemnity of the occasion and the particular responsibility to tell the truth. His appreciation of those matters is presumed if he is able to give intelligible testimony, and he is able to give intelligible testimony if he is able to understand questions put to him as a witness, and give answers which can be understood. See S55: “(2) the witness may not be sworn for that purpose [i.e. giving evidence] unless (a) the he has attained the age of 14, and

(b) he has a sufficient appreciation of the solemnity of the occasion and of particular responsibility to tell the truth which is involved in taking an oath.

(3) The witness shall, if he is able to give intelligible testimony, be presumed to have a sufficient...
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