Witnesses under 18 years old

Introduction

Children and young people who need to go to court as witnesses are often either the victims of crime or witnesses to crimes. Children and young people may feel anxious about having to go to court and may need extra support and reassurance from parents, guardians or carers before they go to court and during the court case.

Children and young people can give evidence in cases at the District Court, the Circuit Court and the Central Criminal Court.

Before a child or young person has to give evidence in court you should explain to them the steps involved in taking a case to court.

The Gardaí

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.

The Gardaí consider the allegations and can decide to:

  • Interview the accused about what the child or young person has said and send the file to the Director of Public Prosecutions, or
  • Arrest the accused on warrant, or
  • Charge the accused with an offence or
  • Issue a summons for the accused to appear in court.

The Director of Public Prosecutions

The Gardaí inform the Office of the Director of Public Prosecutions (DPP) about the case. They also inform the DPP about how the child or young person feels about giving evidence in court, and how their parents, guardians or carers feel about this.

The DPP makes an independent decision about whether to proceed with the prosecution, which means that the child or young person may or may not need to give evidence.

The court

Criminal cases begin 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 to the Circuit Court. Cases involving murder, rape, aggravated sexual assault, treason and piracy must be heard in the Central Criminal Court. In the Circuit and Central Criminal Courts, there is a judge and a jury.

If a witness is 14 years of age or older, they have to give evidence on oath or affirmation. Children under 14 years of age do not have to swear an oath or make an affirmation before giving evidence.

In some cases involving sexual offences, the judge can decide not to let members of the public into the court.

If your child is appearing as a witness in court, it is important not to rehearse their evidence. The case may 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 or violent offence, witnesses who are under 18 years of age may be allowed to give evidence by video-link, unless there is a good reason why they should not. Section 13 of the Criminal Evidence Act 1992, as amended, sets out the rules for how evidence can be given by video-link.

If your child is giving evidence by video-link, they don’t need to go into the courtroom. Instead, they can sit in another room and give their evidence by live video-link. A television monitor is placed in the court, which transmits the child’s image, and they have a television monitor in their room, which transmits the image of what is happening in the courtroom. This means that your child does not have to go into the courtroom or see the accused.

When a child gives evidence by live video-link, the judge and the barristers do not wear wigs or gowns in court. The judge can decide to let an intermediary (for example, a social worker) ask the witness questions. The questions should be asked in a way that is appropriate for the age and mental ability of the witness.

Giving evidence from behind a screen

In certain circumstances, a physical screen or partition can be positioned in the courtroom, so the witness can their give evidence in the court without having to see the accused when doing so. This option is available at the judge’s discretion if the witness is under 18 and the proceedings are about a sexual or violent offence. This is done in order to protect the witness from secondary or repeat victimisation.

Video recording of statements

In certain situations, a video recording of a witness statement can be admitted as evidence. This is only allowed if the victim, or any other witness giving evidence, is under 18 years old, and the accused is charged with a sexual offence, child trafficking or child pornography.

In these cases a video recording of the child’s statement can be admitted so they don’t have to give live testimony (evidence) in open court. Section 16 of the Criminal Evidence Act 1992 sets out the rules for videotaping children’s statements.

There are a number of rules about videotaped statements and their admissibility in court including:

  • The video recording must be relevant
  • The child witness must be available to be cross-examined by the defence after the video is played at the trial (cross-examination may be by video link and using an intermediary)
  • The prosecution must serve notice that it plans 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 this can only happen if the accused agrees to it and the judge allows it

Ultimately, the trial judge decides whether a videotape can be admitted in evidence. The judge has to consider if admitting the videotape will result in unfairness to the accused.

Victims who are under 18 years of age can make statements during an interview with a Garda or another competent person. A competent person in this situation could be a professional who assesses the young person because of an abuse case which is being investigated.

All the provisions outlined in this document about video-recording witness statements of people under 18 years of age, also apply to victims with an intellectual disability.


Further information

The Courts Service has published an information booklet and video for young witnesses about going to court.

You should get legal advice for more detailed information.



Page edited: 5 March 2019