Children's evidence - making a case for the adoption of the english criminal justice acts in Caribbean Jurisdictions

• Author: Andy Darkoh
• Position: LL.B., LL.M., Barrister, Lecturer in Law, Cayman Islands Law School
• Pages: 448-457

CHILDREN'S EVIDENCE - MAKING A CASE

FOR THE ADOPTION OF THE ENGLISH CRIMINAL

JUSTICE ACTS IN CARIBBEAN JURISDICTIONS

ANDY DARKOH

Introduction

In many areas of

the

law, the common law countries have followed

English law as developed over the centuries. There are

times,

however,

when local needs, practices and circumstances necessitate a departure

from the common law principles and the promulgation of legislation to

meet those situations. Economic, social and political circumstances in

a particular country may also necessitate a departure from the common

law.

The law of evidence is one of the most pragmatic adjectival laws,

always changing to keep abreast of technological and social

advancement. The English law of evidence, like that of

the

other major

common law jurisdictions, has been advancing fast either to cater for

or to take advantage of new technology. Sometimes the progression is

by systematic analogy and sometimes quite radical, sweeping away the

old common law rules and passing entirely new legislation to

accommodate changes. One particular area of advancement is the law

relating to the giving of evidence by children.

The United States and other common law countries took steps to

modify the competency and corroboration rules relating to children

some years before England did. Even within the United Kingdom,

Scottish law permitted the child witness to be heard unsworn long

before England did. Most of the Caribbean jurisdictions, when it comes

to the assessment of the competency of a child witness, have provisions

equivalent to the English section 38 of the Children and Young Persons

Act, 1933 in their statute books, and still require corroboration for

such evidence.

In the Cayman Islands, for instance, the Evidence Law says nothing

about the competency of children. The Criminal Procedure Code also

says nothing about the competency of children, except that they may

be exempted from the requirement of testifying on oath by reason of

their immaturity. Section 22 of the Juveniles Law, 1990 is, however,

LL.B.,

LL.M., Barrister, Lecturer in Law, Cayman Islands Law School.