It's now easier to convict paedophiles


November 30, 2015

For many decades, lawyers in criminal cases, in particular, have raised the issue, and many courts have agreed with them, that the uncorroborated evidence of a child is unsafe to ground a conviction.

This concern with the evidence of children emanated from the requirement of the law for such evidence to be corroborated, either as a matter of practice or as a matter of law, due to some recognised inherent weaknesses in the evidence of children owing to their age. As a result, the competence of a child to give evidence has always been a concern of trial judges and legal practitioners, and so judges would first question the child before the child is allowed to take the oath, in order to establish his or her competence.

Corroboration, basically, means evidence from an independent source (that is to say, other than the child witness) that would support the evidence of the child in a material particular tending to show not only that the crime was committed but that it was the particular accused who had committed it. In the case of a child's sworn evidence, corroboration was required as a matter of practice, while in the case of unsworn evidence, it was required as a matter of law.

Often times, the prosecution would have difficulty obtaining that independent evidence, with the effect that a child's evidence, standing alone, was not enough to secure a conviction and this, no doubt, resulted in many 'guilty' persons being allowed to walk free.

In August 2015, the law as it relates to the evidence of children, was radically changed with the passing of the Evidence (Amendment) Act, 2015 (hereinafter called 'the Act'). Now, a child (defined by the Act as a person under 14) does not even have to give evidence on oath and, furthermore, there is no need for such evidence to be corroborated in any proceedings in any court in Jamaica. In fact, the judge does not have to question the child to establish the issue of competence. The judge may do so only where he or she considers it necessary.

sufficient intelligence

Under the Act, the test to assess the competence of a child, when it is considered necessary, is for the judge to determine, on a balance of probabilities, if the child possesses sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth. The judge, during this process, may also rely on evidence from a psychiatrist, psychologist, probation officer or any other qualified persons.

So, once the judge determines that the child is competent to give evidence, the evidence can be given without administering the oath and the evidence must be treated as if given an oath. However, a safeguard is that if the child wilfully gives false evidence, the child shall be dealt with in accordance with the Child Care and Protection Act.

With respect to the requirement for

corroboration prior to August 2015, the law now provides that it is not necessary for the evidence given by children in any civil or criminal proceedings to be corroborated in order to determine liability, conviction or any other issue. The safeguard is that the trial judge may give a warning to the jury or to himself to exercise caution when accepting the uncorroborated evidence of a child. Thereafter, the issue is just to determine the weight to be given to such evidence.

In light of this development in the law, the prosecution should find it much

easier to secure convictions, especially in sexual offence cases involving children. With this in mind, it should be a strong warning to would-be sexual offenders that the window of opportunity to commit these sexual offences against children and walk away free is slowly closing and may soon be shut tight. A word to the wise is sufficient.

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