Legislation intended to strengthen child protection laws came has come into force, the Attorney-General said today.
Kathy Lynn Simmons, the Attorney-General and the Minister of Legal Affairs, said that Part 5 of the Child Safeguarding (Miscellaneous Amendments) Act 2019 came into force on Friday when the House sat.
Ms Simmons said: “The safeguarding and promotion of the welfare of our children are paramount to all if Bermuda is to thrive in the future.
“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 being brought to justice.“
The legislation changes how child witnesses are handled in sexual offence cases.
Changes under the legislation
Measures in the Child Safeguarding (Miscellaneous Amendments) Act 2019, which came into force on Friday, include:
- Updated 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 audiovisual 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.
- Protections for preserving the integrity of a child’s recorded evidence and safekeeping, with an offence for unauthorised possession or dealing with a recording.
Ms Simmons said: “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 Attorney-General added that similar laws are in place in England and Wales, Australia, Canada, Jamaica and the Cayman Islands.
“We can all appreciate the practical challenges and sensitivities at play when obtaining evidence in open court from child witnesses in sexual assault cases,“ Ms Simmons said.
“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.”
Ms Simmons said that while the bulk of the Act came into effect in November 2019, the implementation of the final section required the courts to have the necessary technology and physical facilities to accommodate it.
Special audiovisual equipment is on island and set to be installed in several courtrooms, with work to begin in the first week of August.
“The courts and the Director of Public Prosecutions have indicated their readiness to implement Part 5 of the Act,” Ms Simmons said.
“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.”
She added that the new measures will offer greater assurances to children and families that they can comfortably give evidence.
Ms Simmons said: “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.”