Amendment status not verified — confirm the current text below against the official source.
Guidance on examining child victims and witnesses During criminal investigation, some minimum levels of protection are required in relation to any interviews with the victim. These should be carried out in a sensitive manner and advocates as well as law enforcement officials should have received appropriate training to this end. Such training should ensure that these persons know appropriate methods of interviewing which will take account of a victim's particular situation, minimise distress and maximise the collection of high-quality evidence. In order to ensure that the child-friendly trial procedures established under 67 the Act are optimised, the following guidance should be kept in mind by legal representatives of a child who has been a victim of an offence under the Act: 2.1 Before trial i) List cases for an as soon as possible and avoid adjournments: It is in the interest of the child that the trial is concluded as quickly as possible. Prolonging the judicial process will only cause more trauma to the child. ii) Ensure that communication with the child is in an understandable language and manner: The majority of young witnesses experience communication difficulties while giving evidence, often because questioning is developmentally or otherwise inappropriate. Before a child gives evidence, try having a conversation with him outside the Court so that you have an idea about his/her communication abilities and concentration span. iii) Consider what special measures may be taken in light of the child’s wishes and needs: Make whatever applications are necessary to ensure that the child receives the benefit of existing child-friendly measures. Ensure applications are made within time limits so that the child can be informed of decisions before trial. iv) Ensure that the child is able to exercise his/her right to be accompanied by an adult in whom he has trust and confidence: This could be the child‟s parent, guardian, or other person, or the support person appointed by the CWC. v) Chart all stages of children’s evidence to minimize time at court and give them a fresh start in the morning: The start of children‟s testimony should not be delayed by other matters on the court list. It is best to make an estimate of the amount of time the child will have to be present in Court, and in doing this, to bear in mind his/her concentration span, the length of any recording, the best time to view it and the need for breaks. Request the Special Court to accommodate these requirements. vi) Request that the child is given an opportunity to visit the court to familiarize himself with it before the trial: This will enable the child to experience the atmosphere in Court so that he is not intimidated at the trial and avoid the need for him to attend early on the day of trial to see facilities. It will also allow him to express an informed view about special measures, so that a revised application can be made if necessary in advance of trial. 68 vii) Request that the child sees or can be briefed on his/her statement for the purpose of memory-refreshing before trial viii) Consider the witness’s access to the building and suitability of waiting areas: Where it is difficult to segregate young witnesses from defendants within and around the building, consider standby arrangements or the use of remote live links. 2.2 At trial i) Children have the right to be heard in any judicial and administrative proceedings affecting them. They must be given a reasonable opportunity to express their views all matters affecting him and these must be taken into account. He should also be allowed to provide initial and further information, views or evidence during the proceedings. ii) Children have the right to information about the case in which they are involved, including information on the progress and outcome of that case, unless the lawyer considers that it would be contrary to the welfare and best interests of the child. It would be best if the lawyer coordinates with other persons or agencies concerned with the child‟s welfare, such as the support person, so that this information is conveyed in the most effective manner. Victims should receive the most appropriate information on the proceedings from all their representatives, and the assistance of a support person appointed under Rule 4(7) most often constitutes the best practice in ensuring that full information is conveyed to the victim. Such information would include: (a) Charges brought against the accused or, if none, the stay of the proceedings against him; (b) The progress and results of the investigation; (c) The progress of the case; (d) The status of the accused, including his/her bail, temporary release, parole or pardon, escape, absconding from justice or death; (e) The available evidence; (f) The child‟s role in the proceedings; (g) The child‟s right to express their views and concerns in relation to the proceedings; (h) The scheduling of the case; 69 (i) All decisions, or, at least, those decisions affecting their interests; (j) Their right to challenge or appeal decisions and the modalities of such appeal; (k) The status of convicted offenders and the enforcement of their sentence, including their possible release, transfer, escape or death. iii) Ensure ahead of time that equipment is working, recordings can be played and that camera angles will not permit the witness to see the defendant: Do not wait until the young witness is in the live link room to run checks: delays and malfunctions can be disruptive to the child. Where a live link is being used during the child‟s testimony, ensure that they are able to see all of the questioner‟s face. iv) Explain that the judge or magistrates can always see the witness over the live video link: Explain that this is the case even when the witness cannot see the judge or magistrates. v) Request the Public Prosecutor to himself to the child before the trial and to answer his/her questions: Judges and magistrates may also ask if the child would like to meet them before the trail starts, to help to establish rapport and put the child at ease. Under the POCSO Act, 2012 questions to the child will be routed through the Judge, and it would be useful for the child to be familiar with their manner of conversation, and vice versa. vi) Encourage the child to let the court know if they have a problem: They may not understand a question or questions that are too fast, or they may need a break. However, many children will not say they do not understand, even when told to do so. Professional vigilance is therefore always necessary to identify potential miscommunication, and it is the child‟s counsel who will have to be mindful of any instance where the child is losing concentration, feeling ill, etc. vii) Do not ask the child at trial to demonstrate intimate touching on his/her own body: This may be construed as abusive. The child can instead be asked to point to a body outline diagram.