Witnesses under 18 years
Children and young people who are required to go to court as witnesses are most often either the victims of crime or witnesses to crimes. Going to court is regarded by most people as a daunting prospect and children and young people may feel anxious about the prospect and will need extra support and reassurance from parents, guardians or carers in advance of and during this time.
Before a child or young person is required to go to court to give evidence, it is important to explain the several steps involved in taking a case to court.
A complaint is made to the Gardaí that identifies the child or young person as a victim of, or witness to, a crime. A Garda officer then interviews the child or young person.
Following consideration of all the allegations made, the Gardaí may decide to:
- Interview the defendant about what the child or young person has said and send the file to the Director of Public Prosecutions, or
- Arrest the defendant on warrant, or
- Charge the defendant with an offence or
- Issue a summons for the defendant to appear in court.
The Director of Public Prosecutions
The Gardaí inform the Office of the Director of Public Prosecutions (DPP) about the case and provide information as to how the child or young person and their parents/guardians/carers feel about the child or young person giving evidence in court.
The DPP makes an independent decision about whether or not to proceed with the prosecution, which means that the child or young person may or may not be required to give evidence.
Criminal cases commence in the District Court where the judge sits without a jury. Cases involving minor assaults are decided in the District Court. Cases involving more serious assaults or serious offences against property are sent forward for trial to the Circuit Court. Cases involving murder, rape, aggravated sexual assault, treason, piracy, etc., must be heard in the Central Criminal Court. In both the Circuit and Central Criminal Courts, the judge sits with a jury.
If a witness is 14 years of age or over, he/she will be required to give evidence on oath or affirmation. Children under 14 years are not required to swear an oath or make an affirmation before giving evidence.
In some cases involving sexual offences, the judge may decide that members of the public should not be allowed in court.
If your child is appearing as a witness in court, it is important not to rehearse the child's evidence. The case is likely to fail if the child appears to have been "coached". The prosecution can give you more advice on this.
Giving evidence by video link
In cases involving a sexual offence or an offence involving violence, Section 13 of the Criminal Evidence Act 1992 allows for children under 17 years of age and people with intellectual disabilities to give evidence from a separate room using a video link. unless there is a good reason why they should not.
Instead of coming into the courtroom, the witness sits in another room and gives evidence via a live television link. A television monitor is placed in the court, which transmits the image of the witness, and the witness has the benefit of a television monitor in his/her room that transmits the image of what is going on in the court.
This means that your child does not have to go into the courtroom or see the defendant. When evidence is being given by a child through a live TV link, the judge and the barristers in the court do not wear wigs or gowns. The judge may decide that the questions should be asked through an intermediary (for example a social worker) and that they should be asked in a way that is appropriate for the age and mental ability of the witness.
Video recording of statements
Section 16 of the Criminal Evidence Act 1992 allows for video recording of statements of victims under 14 years of age to be admitted as evidence in criminal proceedings in relation to sexual offences or offences involving violence. The law allows for the video recording of the statement to be admitted in place of the child having to give live testimony (evidence) in open court. This also removes the requirement of the child witness having to physically confront and re-identify the accused in court.
There are a number of rules regarding the admissibility of this video recording of statements.
- The video recording must be relevant.
- The child witness must be available for cross-examination by the defence at the trial following the playing of the tape (although cross-examination may be via television link and using an intermediary).
- The prosecution must serve notice of its intention to admit a videotaped interview in evidence and must give the accused a reasonable opportunity to view the videotape.
- An edited version of the videotape may be played to the court but only if the accused consents and the judge allows it.
Ultimately, it is at the discretion of the trial judge whether to allow a videotape to be admitted in evidence. The judge has to consider whether there is any risk that the admission of the videotape will result in unfairness to the accused.
The statements of victims under 14 years of age can be made during an interview with a Garda or other competent person. The competent person in such a situation would be the professional person who assesses the young person as a result of an abuse case which is being investigated.
All the provisions which relate to the video-recording of statements made by victims under 14 years of age and the admissibility of such videotapes in a court also apply to any victim with an intellectual disability.