Jersey Law 27/2002
CRIMINAL JUSTICE (EVIDENCE OF CHILDREN) (JERSEY) LAW 2002
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A LAW to consolidate the provisions of the
Criminal Justice (Evidence and Procedure) (Jersey) Law 1997 and certain
provisions of the Children (Jersey) Law 1969, as amended, concerned with the
giving of evidence of children and certain other persons by means of television
links and video recording, the presence in court of children under the age
of 17 at the trial of other persons, the conduct of proceedings where the
victim is a child, the giving of unsworn evidence by children and other related
provisions involving children and other persons, sanctioned by Order of Her
Majesty in Council of the
26th day of JUNE 2002
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(Registered on the 26th day of July 2002)
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STATES OF JERSEY
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The
26th day of February 2002
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THE STATES, subject
to the sanction of Her Most Excellent Majesty in Council, have adopted the
following Law -
ARTICLE
1
Interpretation
(1) In this Law -
“child witness” means a child
who is not the accused or one of the accused in criminal proceedings;
“statement” includes any
representation of fact, whether made in words or otherwise;
“video recording” means any
recording, on any medium, from which a moving image may by any means be
produced and includes the accompanying sound-track;
“witness” means a person who is
not the accused or one of the accused in criminal proceedings.
(2) A reference in this Law to an Article by number only and without
further identification is a reference to the Article of that number in this
Law.
(3) A reference in an Article or other division of this Law to a
paragraph or sub-paragraph by number or letter only and without further
identification is a reference to the paragraph or sub-paragraph of that number
or letter in the Article or other division of this Law in which that reference
occurs.
(4) Unless the context otherwise requires, a reference in this Law
to an enactment is a reference to that enactment as amended from time to time,
and includes a reference to that enactment as extended or applied by or under
another enactment, including another provision of this Law.
ARTICLE
2
Evidence through television links
(1) A person to whom this Article applies may, with the leave of the
court, give evidence through a live television link in any criminal proceedings
if he is charged with -
(a) an offence which involves an assault on, or injury or a threat
of injury to, a person;
(b) an offence under -
(i) Article 35 of the Children (Jersey) Law 2002,
(ii) Article 1, 2, 4, 5 or 6 of the “Loi (1895)
modifiant le droit criminel”,
(iii) Article 44 or 45 of the Mental Health (Jersey)
Law 1969,
or
(iv) the Protection of Children (Jersey) Law 1994;
(c) rape, buggery, bestiality, incest, gross indecency, procuring an
act of gross indecency, or indecent assault; or
(d) an offence which consists of attempting or conspiring to commit,
or of aiding, abetting, counselling, procuring or inciting the commission of,
an offence falling within sub-paragraphs (a) to (c).
(2) This Article applies to a -
(a) child witness; and
(b) witness who is a patient or person requiring special care within
the meaning of the Mental Health (Jersey) Law
1969,
being a patient or person who is competent to give evidence.
(3) Article 3(10) shall apply for the purposes of this Article as it
applies for the purposes of that Article, but with the omission of the
references to a person being, in the cases there mentioned, under 15 years of
age or under 18 years of age.
ARTICLE 3
Video
recordings of testimony from child witnesses and other witnesses
(1) In any proceedings in connection with an
offence referred to in Article 2(1) the court may give leave to allow a video
recording to be given in evidence of an interview which -
(a) is conducted between an adult and child
witness or witness referred to in Article 2(2)(b); and
(b) relates to any matter in issue in the proceedings.
(2) Subject to the exercise of any of its powers to exclude evidence
which is otherwise admissible, the court shall give leave under paragraph (1)
unless -
(a) it appears that the child witness or witness, as the case may
be, will not be available for cross-examination;
(b) any rules of court requiring disclosure of the circumstances in
which the recording was made have not been complied with to the satisfaction of
the court; or
(c) it considers that, having regard to all the circumstances of the
case, in the interests of justice the recording ought not to be admitted.
(3) Where the court gives leave under paragraph (2), it may, if it
considers that in the interests of justice any part of a recording ought not to
be admitted, direct that that part shall be excluded.
(4) In considering whether any part of a recording ought to be
excluded under paragraph (3), the court shall consider whether any prejudice to
the accused, or one of the accused, which might result from the admission of
that part is outweighed by the desirability of showing the whole, or
substantially the whole, of the recorded interview.
(5) Where a video recording is admitted under this Article the child
witness or witness, as the case may be -
(a) shall be called by the party who tendered
it in evidence;
(b) may, with the leave of the court, be examined in chief on any
matter which, in the opinion of the court, has been dealt with in his recorded
testimony.
(6) Any statement made by the child witness or witness, as the case
may be, which is disclosed by a video recording given in evidence under this
Article shall be treated as if given by that witness in direct oral testimony.
(7) Any statement referred to in paragraph (6) shall be admissible
evidence of any fact of which such testimony from the child witness or witness,
as the case may be, would be admissible.
(8) No statement referred to in paragraph (6) shall be capable of
corroborating any other evidence given by the child witness or witness, as the
case may be.
(9) In estimating the weight, if any, to be attached to a statement
referred to in paragraph (6), regard shall be had to all the circumstances from
which any inference as to its accuracy or otherwise can reasonably be drawn.
(10) In this Article “child” means a person who -
(a) in the case of proceedings specified in Article 2(1)(a) (or in
sub-paragraph (d) of that paragraph where the principal offence is one
specified in sub-paragraph (a) of that paragraph), is under 14 years of age or,
if he was under that age when the video recording was made, is under 15 years
of age; or
(b) in the case of proceedings specified in Article 2(1)(b) or (c)
(or in sub-paragraph (d) of that paragraph where the principal offence is one
specified in sub-paragraph (b) or (c) of that paragraph) is under 17 years of
age or, if he was under that age when the video recording was made, is
under 18 years of age.
(11) Nothing in this Article shall prejudice the admissibility of any
video recording which would be admissible apart from this Article.
ARTICLE
4
Prohibition on persons under the age of 17 being
present in court during the trial of other persons
Except by leave of the court, no
person under the age of 17 years (other than an infant in arms) shall be
permitted to be present in court during the trial of any other person charged
with an offence, or during proceedings preliminary thereto, except during such
time as his presence is required as a witness or otherwise for the purpose of
justice; and any child present in court when under this Article he is not
permitted to be there shall be ordered to be removed.
ARTICLE
5
Power to clear court while person under the age of 17
is giving evidence in certain cases
(1) Where, in any proceedings in relation to an offence against, or
any conduct contrary to, decency or morality, a person under the age of 17
years is called as a witness, the court may direct that all or any persons, not
being -
(a) members or officers of the court or parties to the case, their
advocates or solicitors or persons otherwise directly concerned in the case; or
(b) bona fide
representatives of newspapers, news agencies or sound or television
broadcasting companies,
be
excluded from the court during the taking of the evidence of that witness.
(2) The powers conferred on a court by this Article shall be in
addition and without prejudice to any other powers of the court to hear
proceedings in camera.
ARTICLE
6
Power to proceed with case in the absence of person
under the age of 17
Where in any proceedings with
relation to any of the offences mentioned in the Schedule to this Law, the
court is satisfied that the attendance before the court of any person under the
age of 17 years in respect of whom the offence is alleged to have been
committed is not essential to the just hearing of the case, the case may be
proceeded with in the absence of that person.
ARTICLE
7
Extension of power to take deposition of person under
the age of 17
(1) Where the Bailiff is satisfied by the evidence of a registered
medical practitioner that the attendance before the court of any person under
the age of 17 years in respect of whom any of the offences mentioned in the
Schedule to this Law is alleged to have been committed would involve serious
danger to his life or health, he may direct that the deposition of the child be
taken on oath in accordance with the “Loi (1853) concernant la rédaction
des dépositions”
and the depositions shall be admissible in evidence in the proceedings with
relation to the offence either for or against the accused person without
further proof thereof.
(2) In this Article “registered medical practitioner” has the same
meaning as in the Medical Practitioners (Registration) (Jersey)
Law 1960.
ARTICLE
8
Evidence given by children
(1) Evidence of a child in proceedings against any person for any
offence shall be given unsworn.
(2) A statement of unsworn evidence of a child may be taken for the
purposes of proceedings against any person for any offence as if that evidence
had been given on oath.
(3) Evidence of a child shall be received unless it appears to the
court that the child is incapable of giving intelligible testimony.
(4) If any child whose evidence is received unsworn in accordance
with paragraph (1) wilfully gives false evidence in such circumstances that he
would, if the evidence had been given on oath, have been guilty of perjury, he
shall be liable to be dealt with as if he had been convicted of an offence
punishable in the case of an adult with imprisonment.
(5) In this Article, “child” means a person
under fourteen years of age.
ARTICLE
9
Cross-examination of alleged victims
(1) No person who is charged with an offence referred to in Article
2(1) shall cross-examine in person any witness who is -
(a) alleged to be a person against whom the offence was committed or
to have witnessed the commission of the offence; and
(b) a person to whom Article 2 applies, or is to be cross-examined
following the admission under Article 3 of a video recording of testimony from
him.
(2) Article 3(10) shall apply for the purposes of this Article as it
applies for the purposes of that Article, but with the omission of the
references to a person being, in the cases there mentioned, under fifteen years
of age or under eighteen years of age.
ARTICLE
10
Power to make Rules
Rules may be made in the manner
prescribed by the Royal Court
(Jersey) Law 1948
to make such provision as appears to the Superior Number of the Royal Court to be
necessary or expedient for the purposes of this Law.
ARTICLE
11
Repeal of enactment
The Criminal Justice (Evidence
and Procedure) (Jersey) Law 1997
shall be repealed.
ARTICLE
12
Citation and commencement
This Law may be cited as the
Criminal Justice (Evidence of Children) (Jersey)
Law 2002 and shall come into force on such day as the States may by Act
appoint.
C.M.
NEWCOMBE
Greffier of the States.
SCHEDULE
(Articles 6 and 7)
Offences against persons under the age of 17 to which
Articles 6 and 7 apply
Murder
or manslaughter.
Infanticide.
Any
offence under Article 1, 2, 4, 5 or 6 of the “Loi (1895) modifiant le droit
criminel”
and any attempt to commit an offence under Article 5 or 6 of that Law.
Sodomy
or an attempt to commit such an offence.
Incest
or an attempt to commit such an offence.
Stealing
a child or receiving a stolen child.
Assault.
An
offence under Article 35 of the Children (Jersey)
Law 2002.
Any
other offence involving bodily injury.
An
offence under Article 2(1)(a) of the Protection of Children (Jersey)
Law 1994.