Special Measures Brings Justice System Up-to-Date on Child Witness Protection in Sexual Offence Cases

“The safeguarding and promotion of the welfare of our children are paramount to all, if Bermuda is to thrive in the future,” said the Attorney–General and Minister of Legal Affairs, the Hon. Kathy Lynn Simmons JP, MP. “There should be no hiding place for the vile perpetrators of sexual offences against children, and no procedural hurdle at trial too high to prohibit perpetrators they are not brought to justice.”

Attorney-General Simmons continued, “The Act represents, for Bermuda, the gold standard of legislative reforms designed to enhance existing laws and principles to safeguard our children from sexual exploitation and abuse. New provisions coming into operation include a scheme for applying ‘special measures’ for child witnesses in criminal trials relating to sexual offences; removal of an outmoded evidential hurdle of requiring corroboration of child witness testimony; and the institution of a new ‘sexual assault counselling privilege’, that will spare child witnesses from having to be cross-examined at trial on their communications, as they will be supported with a counsellor or therapist.

“These procedural and evidential requirements will allow the Courts, and practitioners, to apply legal standards based on best practice research for obtaining quality evidence from children in criminal trials. The Part 5 provisions model comparable laws in jurisdictions such as England and Wales, Australia, Canada, Jamaica and Cayman Islands.

“The Act, which (except Part 5) initially came into force on 1 November 2019, ensures that as a jurisdiction we fully meet the requirements of the Lanzarote Convention, the title ascribed to the 2007 Council of Europe’s Convention on Protection of Children against Sexual Exploitation and Sexual Abuse. Implementing Part 5 of the Act completes that exercise by ensuring adequate protections for child witnesses in sexual offence cases.

“We can all appreciate the practical challenges and sensitivities at play when obtaining evidence in open court from child witnesses in sexual assault cases. Judges must balance the procedural fairness to the accused against the need to safeguard child witnesses from being re-traumatised by the trial experience. The new special measures for child witnesses in sexual offences set out a statutory framework for judicial decision-making on the range of procedural and evidential issues.

“A synopsis of what is coming into operation under the special measures provisions includes—

  • Standards for when a child can give sworn or unsworn evidence;
  • The removal of the requirement for corroborating evidence of child testimony, but judicial discretion to seek corroborating evidence is preserved;
  • General principles to follow when dealing with child witnesses;
  • Use of videotaped recording of child witnesses, with directions from the court for how to take such evidence;
  • Provision for the Courts to consider the child’s wishes in respect of whether to give pre-recorded evidence;
  • Criteria for providing live evidence by audio-visual link or by a protective screening of the child witness;
  • Provision to empower the court to exclude the public from hearings;
  • The ability to allow a child witness to have a support person near when giving evidence;
  • Instructions to the jury where special measures are used;
  • Express powers for the Courts are to make orders, directions and rulings concerning child witnesses; and
  • Stringent protections for preserving the integrity of a child’s recorded evidence and safekeeping, with an offence for unauthorised possession or dealing with a recording.

“Bringing Part 5 of the Act into operation was predicated on ensuring the courts and others were equipped with the technology and physical environment resources needed to implement the range of special measures. Special audio-visual equipment is to be installed in Supreme Court No. 4, Magistrates’ Court No. 1 and both of the

Commercial Courtrooms. The equipment is already on the island, and specialist technicians are due to arrive at the end of July. According to the plan, the installation process should commence in the first week of August 2022.

“In June, the Supreme Court, Family Division facilitated training for judicial officers, professionals and legal practitioners in the key principles behind the approaches to engaging the special measures for child witness testimony as part of 2022 Matrimonial, Child & Family Law and Practice Seminar. The Judiciary and the Magistracy were present, as were the Family Court panel members, acting magistrates, senior members of the Bar, and the Director of Public Prosecutions.

“The courts and the Director of Public Prosecutions have indicated their readiness to implement Part 5 of the Act. The need for special measures is expected to be utilised in cases which are likely to proceed to trial in the coming months. These special measures bring our justice system fully up-to-date in methodologies to assist and protect child witnesses in sexual offence cases.

“The Witness Care Unit of the Department of Public Prosecutions provides care and facilitates support services for child witnesses and their families in preparation for trial. Witness Care Officers and Prosecutors are to be publicly commended for their professionalism, tact and compassion when engaging with child witnesses. With special measures coming into effect, families and support systems can now take greater assurance and comfort with the decision to have a child come forward to give evidence against an accused person.

“Every child deserves to be protected from abuse, harm and neglect. Their needs, and interests, are a top priority for this Government. We are determined to do all that we can to strengthen our child protection system, keep under review all laws affecting children, and enhance offender management regimes. Together with the Child Safeguarding Committee, we strive tirelessly to bring security and an environment that optimises the development of our most valued resource – our beautiful and most-deserving children.

Lastly, the Attorney-General reminded the public that in Bermuda, mandatory reporting is required for all cases of known or suspected neglect or abuse of children. If individuals or institutions fail to identify, or fail to report, the signs of abuse and neglect, the consequences can be far-reaching and have a lasting adverse impact on children, their families and their life outcomes.

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