Is there a need for empirical research and decisive action by the authorities?
By SR Balgopal
Official statistics are published in Mauritius in a number of areas and play a vital role in the formulation of government policy. One of the areas where there is a glaring lack of official statistics is the area of child witnesses in the context of criminal proceedings where they are quite required to depone on their experience as a victim of crime.
In order to decide whether there is a need for revisiting the legal context in which child witnesses depone in Courts, it is imperative that the institutions which deal with children as victims and witnesses assume their responsibilities in terms of collecting data and empirically analyzing such data before coming up with concrete proposals for reform, if need be.
The present context in which child witnesses are called upon to depone in Courts is primitive, to say the least. To our mind, there are merely two sections of the law which apply to such vulnerable witnesses. The first section deals with the exclusion of witnesses from proceedings, upon a motion being made by the prosecution and being granted to by the Court.
The Courts Act, at section 161 A, thus provides the circumstances in which persons may be excluded from Court proceedings and has a special focus on child witnesses:
“161A Persons may be excluded from proceedings
Any Judge, Magistrate or other person having by law authority to hear, receive or examine evidence may, where he considers it necessary or expedient –
(a) in circumstances where publicity would prejudice the interests of justice or of public morality;
(b) in order to safeguard the welfare of persons under the age of 18;
(c) in order to protect the privacy of persons concerned in the proceedings;
(d) in the interests of defence, public safety or public order,
exclude from the proceedings (except the announcement of the decision) any person other than the parties to the trial and their legal representatives.”
Further, section 161 B of the Courts Act, a section which is so sparingly used that it has never been the subject of any judicial consideration, provides for the possibility to use live-video and television link to dispense a complainant in a sexual offence case to appear before it in person. A cursory reading of newspapers will clearly indicate that a fair number of complainants in such cases happen to be children. Section 161 B of the Courts Act reads as follows:
“161B — Live Video and Television Link
(1) Notwithstanding any other enactment, the Court may, in its discretion and on motion made by the prosecution, allow a complainant in a sexual offence case to appear before it, and depone, through such live video or live television link system as may be approved in writing by the Chief Justice.
(2) In exercising its discretion under subsection (1), the Court shall ensure that there is a fair hearing in the matter.”
It would be most edifying to have statistics as to the use of section 161B of the Courts Act by the prosecution authorities in Mauritius. This section exists on our statute books since 2003 and it was no doubt introduced by the legislator to provide for the possibility of avoiding the ordeal of appearing in Court to victims of sexual offences. The questions which arise at this juncture are as follows:
(a) In how many cases has section 161B of the Courts Act been used since its coming into force in Mauritius?
(b) If it has not been used, are there valid reasons for its non-use?
(c) Are prosecutors familiar with this section? How many motions have been made by prosecutors in relation to this section of the Courts Act?
(d) In the event motions have been made as per paragraph (c) above, why have they not been granted?
In addition to the above, we may also recall that section 3 of the Ombudsperson for Children Act 2003 establishes the office of Ombudsperson for children in the following terms:
“3. Establishment of the office of Ombudsperson for Children
(1) There is established for the purposes of this Act the office of Ombudsperson for Children.
(2) The Ombudsperson for Children shall be a person who has a wide knowledge of the issues and the law relating to children in Mauritius.
(3) The Ombudsperson for Children shall take before the President the oath specified in the Schedule before assuming the duties of his office.”
Amongst the numerous functions of the Ombudsperson for children, section 6 (a), (c) and (e) are the most crucial for the purposes of this article. Section 6 is reproduced below for the sake of convenience:
“6. Powers and functions of the Ombudsperson for Children
In carrying out the duties of his Office, the Ombudsperson for Children shall –
(a) make proposals to the Minister on legislation, policies and practices regarding services to, or the rights of, children;
(c) advise public bodies and other institutions responsible for providing care and other services to children on the protection of the rights of children;
(e) propose measures to ensure that the legal rights of children in care are protected and that the placement facilities promote the safety of children and conform with such norms as the Ombudsperson for Children may, from time to time, recommend…”
Having set out the context in which child victims, who later become part of the legal process as witnesses, have to evolve in Mauritius, and having set out that there exists an Ombudsperson for Children whose office has been established since 2003 and commented on the lack of statistics in relation to child witnesses, we may now make the following observations which follow from the above analysis but which also supplement it:
(a) Whilst the extent of child victimisation to crime can be estimated in broad terms, the number of children who annually are cast in the official role of witness to a criminal offence is harder to ascertain. There are no official published statistics on how many children give evidence in criminal proceedings each year;
(b) The legal framework in which child witnesses operate in Mauritius is primitive;
(c) Even if statistics were to be gathered by the authorities, there are presumably also a substantial number of children interviewed by the police as potential witnesses in investigations that do not lead to charges;
(d) There are no guidelines for lawyers who are called upon to cross-examine child witnesses;
(e) Contrary to the UK, it is possible for a an accused party representing himself to cross-examine a child witness in a criminal case of a sexual nature;
(f) It does not appear that prosecution lawyers have benefited from specialized training to handle child witnesses;
(g) It does not appear that there is an established protocol in terms of preparing a child witness for trial and ensuring that the witness understands the legal process;
(h) There is no indication that there is a fast track to bring cases involving child witnesses speedily to trial and that Courts are loathe to grant postponements in cases where children are witnesses;
(i) There is no established protocol for explaining the adversarial nature of the legal process to a child witness and there is little indication that post-trial, child witnesses benefit from psychological support and get access to debriefing sessions which may help in their well-being; and
(j) There is no evidence that the legal profession as well as Magistrates are alive to the special needs of children witnesses due to the lack of empirical studies on the impact of the legal process on child witnesses in Mauritius
In considering the position of the child witness in the Mauritian legal system, one would struggle to find a more apt quote than the one from Sir Ken Macdonald, who in 2006, was the Director of Public Prosecutions in the UK and who stated at a seminar hosted by the Centre for Criminal Justice Studies in May 2006 that:
“ It is perfectly true that victims have traditionally fared badly within our criminal justice system. They have not been thought of very much and their needs are often ignored. It has very much been a process of turn up at court to give your evidence and that’s it. There is a traditional inadequacy in our system which gives the impression that trials are about ‘getting off’ and that justice is a game in which no-one takes the community’s side… The perception that no one looks out for [victims and witnesses] and that it’s only defendants whose rights are taken seriously is not wildly wrong.”
In essence the issue boils down to the extent to which the criminal Justice system can and does recognise that victims and witnesses have interests in ‘their cases’ which need to be respected and addressed. The grounds on which victims’, and by extension, witnesses’ rights in the criminal justice process should be recognised is under-theorised, but it does attract instinctive support.
In understanding the diversity of victim and witness interests in criminal proceedings it is helpful to distinguish between the interests of the victim as a ‘victim’, that is the primary injured party, and the interests of the victim as a ‘witness’, that is a person upon whom the state calls to provide evidence to assist in the prosecution of the alleged criminal. Witness issues are significantly different from victim issues, which largely revolve around requests for a substantive role in the criminal justice process that is currently lacking.
In addition to the above, explaining the legal process to child witnesses is nothing short of crucial. From the website of the UK Crown Prosecution Service, it may be gleaned, on this note that the purpose of speaking to witnesses is to explain procedures with which they will be unfamiliar, to put them at ease and to thank them for coming to give evidence. Advocates should try to adjust their tone and language to an appropriate one for the age and ability of the child without being patronising. Straightforward non-legal language should be used and questions should be kept short and simple
Finally, as a basic principle, in cases involving children either as victims or as witnesses, delay should be kept to a minimum in order to reduce, so far as is possible, the levels of stress and worry about the process that the child may feel. From an evidential point of view, the less delay there is the more likely it is that the events will be fresher in the child’s memory.
* Published in print edition on 1 September 2011