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Confusion reigns as media says a two-year-old gave evidence in criminal proceedings

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Legal history made?

Readers have been left scratching their heads over potentially misleading reports suggesting a two-year-old girl has made legal history by giving evidence in a criminal case.

Various nationals have reported that the young girl in question, who cannot be named, gave evidence in an abuse case by way of a recorded interview. The defendant was sentenced to more than a decade in prison for sexual offences against a child.

However, lawyers were quick to point out that the defendant in this case had pleaded guilty, meaning there was no criminal trial. Anonymous blogger and advocate Secret Barrister told Legal Cheek the ‘giving evidence’ media reports are “slightly misleading” because of this. And Jaime Hamilton, a tenant at Nine St John Street, said:

Commenting on the story is very difficult. At what stage did the defendant plead? Was there other evidence such as DNA? The child may have given an account. That account may have been served (initial disclosure can often include material not relied upon for trial). But we don’t know if, for example, there had been a ruling by the court to determine whether the child was a competent witness. It is a story about obtaining an account from a very young child but that is a long way from saying this child ‘gave evidence’.

The legal issue here is competence to be a witness, which is covered by the Youth Justice and Criminal Evidence Act 1999. This states children of any age are potentially competent to testify in criminal cases, though it seems this may be an unpopular opinion. At the time of writing, of the 200 respondents who have taken part in our Twitter poll, which asks ‘Should two-year-old children ever be allowed to give evidence in criminal cases?’, nearly three quarters have said no.

Regardless, it’s actually becoming more common for children to give evidence. Examples of young children doing so in the past decade include the 2007 case of R v Dean, in which a five-year-old girl spoke via video link about claims she’d been raped aged three. In 2010, the evidence of a four-and-a-half-year-old was accepted in another rape case and in 2011, a three-year-old boy who had suffered life threatening injuries when a man stamped on his stomach gave evidence in the case. The defendant was sentenced to 13 years in prison.

That said, a child will not be competent to give evidence in criminal proceedings if the court decides they’re not able to understand questions put to them and give answers to these questions that can be understood. At 24 months, it’s anticipated half a child’s speech is understandable and that they can make short sentences — it’s for the court to decide competence on a case-by-case basis.

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