Legislative reform needed to protect children, vulnerable witnesses

by Carlos James, Esq 15.APR.11

Amidst talks of this country’s planned lobbying to the United Nations to have the Universal Declaration of Human Responsibilities adopted and the recent passage of the Status of Children Bill, I am guided to articulate a few points on legislative reform, which touches and concerns vulnerable and intimidated witnesses (VIWs) within the criminal justice system.{{more}}

For the purposes of clarity and length, an epigrammatic definition of a vulnerable witness is simply someone who, for a range of reasons, faces barriers, while giving evidence in criminal proceedings. These witnesses, if they were to give evidence, are likely to have some form of negative experience of the criminal justice process. They represent almost every type of witnesses from children, domestically abused women, rape victims to the ordinary person who is in fear of giving evidence.

In 2001, a Commonwealth Secretariat Working Group on Evidentiary Provisions established best practice guidelines for the treatment of victims of crime for Commonwealth territories. They were of the view that children should always be considered vulnerable, and their evidence should always be given using a measure that will avoid face-to-face confrontation with the accused – they recommended mandatory provisions, including screens, video recorded evidence, removal of the public gallery and the use of intermediaries – a practice now in place in some Commonwealth countries, including the United Kingdom.

It was mentioned that if there were requirements at law or by statute for trial evidence to be given in the courtroom, reform would have to accommodate these provisions, whether by practice or through legislation.

A closer look at our existing laws on evidence and procedure will show that we have failed to adopt these recommendations put forward to protect children and other VIWs.

In fact, there are only three accounts of any special provisions for VIWs in this jurisdiction. St. Lucia and Trinidad and Tobago have drafted legislation to accommodate vulnerable witnesses, while much of the legislation further north in the British colonies are mirrored off evidentiary procedures in England and Wales.

Justice Ola Mae Edwards, at a 2007 Magistrates’ conference in Dominica, acknowledged that changes relating to the law of evidence within the Eastern Caribbean “are necessary and long overdue.” This she asserted should “greatly improve the quality of the administration of justice.”

More offences go unreported and criminal trials discontinued because witnesses either refuse to give evidence or have recanted on previously given statements because of the stress, or in some cases humiliation, involved in giving evidence. This is increasingly being recognised as one of the reasons offenders go unpunished. This is evident in St. Vincent and the Grenadines, where a report on Human Rights Practices, (US 11 Mar. 2008, Sec. 5), confirmed that while the police investigated 47 cases of rape and 8 cases of attempted rape in 2007, only 18 of these cases were brought to trial – the failure to prosecute offenders continues to be a problem.

Much can be said of criminal activity in the region. Figures from UNODC and Interpol – based on standardized data sources – show the region grappling with high incidents of crime and violence.

A culture of fear is now seen as responsible for a significant lack of response to requests for witnesses within the Caribbean. “Fifty per cent of potential character witnesses fear coming to court even to say something good,” Wayne Denny, Attorney-at-Law and Privy Council legal officer at the Independent Jamaica Council for Human Rights (IJCHR), has confirmed. It is such culturally embedded problems that present a dilemma for witnesses. Even with the implementation of witness protection units in some islands, intimidation and fear are still very much present. Such issues clearly amplify the importance of special measures to be put in place to assist vulnerable witnesses in criminal proceedings.

Legislators in our jurisdiction have simply overlooked the importance of video technology and other provisions to assist vulnerable witnesses at trial. It is no fairytale that physical and sexual abuse, particularly in the home, is in some instances culturally identified as the norm – reported UN figures highlighting high cases of child abuse within the Caribbean’s socio-cultural environment are testimony of this. Simply put, victims are forced to protect paedophiles and sexual predators, and our system of evidence cannot provide them with adequate safeguards if they are to come forward.

The arguments put forward are quite lucid and point to the obvious gaps and shortcomings in our criminal justice system, where vulnerable witnesses are starved of supportive measures. We simply cannot afford to let children and other VIWs live in fear and continued torture from “terrorists”.

Reform accommodating video evidence is one such tool aimed at protecting vulnerable witnesses. The argument by some members of the Bar is that it is a barrier to the assessment of witness credibility and hinders the accused right to confront their accusers. Notwithstanding, there is a greater balance in favour of protecting victims and VIWs, providing it does not impede the accused right to a fair trial.

While legislative reform is practical, the cost implication would see little rush to have such measures implemented. However, St. Lucia has laid the ground work to what this writer considers a blueprint model for other States to follow. In St. Lucia, vulnerable witnesses need not appear before the court, and can now give evidence at an undisclosed location via video link. This provision is supported by the Evidence (Amendment) Act 2002, which came into force in November 2005. Section 29 of the 2002 Act contains provisions which define vulnerable witnesses, and the exceptional manner in which they are permitted to testify. Its implementation is a tremendous advancement in protecting vulnerable witnesses.

The conspicuous lack of provisions in the criminal justice system to protect VIWs influences the potential negative consequences for VIWs giving evidence at trial. It is, therefore, seemingly untenable to suggest that the non-existence of these provisions in the Commonwealth Caribbean jurisdiction has no influence on how children, rape victims and persons in fear give best evidence in court.

We must consider reforms that address these issues boldly:-

l Legislative amendments which clearly describe vulnerable witnesses and the measures accorded to them;



l Statutory provisions establishing the procedure for identifying and dealing with VIWs;



l Reforms which enable the use of video technology (pre-trial videotaped and CCTV evidence) and other alternative forms of evidence gathering in order to limit court appearances by VIWs. Where appearance is necessary, reforms that accommodate VIWs while giving evidence in court through the use of screens, intermediaries and other suitable provisions;



l Separate waiting rooms for witnesses as well as witness-only facilities such as toilets and counselling rooms to avoid direct confrontation at court;



l specialised training for the police, prosecution staff and members of the judiciary and the Bar to enable them to identify and deal with VIWs. This will also help to sensitise individuals about VIWs and provisions that are best suited for them;



l initiatives aimed at harmonizing evidentiary procedures and legislations in the respective member states would impact positively in solving some of the problems faced by witnesses in the criminal justice system;

The evidence is in front of us, but there is a greater need for lobbying from civil society, human rights organisations and victims groups. We must raise the level of awareness by generating discourse on the issue of legislative reform. Through mediums such as this, we may eventually see legislators putting ink to a white paper outlining steps for a Bill to tackle the issue.

*Carlos James Esq. LL.B (Hons), LL.M, is a practicing barrister and has completed postgraduate specialization in evidentiary procedures to protect vulnerable witnesses in giving evidence at trial.