Lawmakers have voted in favour of amending the Youth Justice Law, which will now prevent criminal trials from being called off, simply because the only evidence is the testimony of a child.
The law previously mandated judges and juries acquit defendants in cases where the only evidence was an uncorroborated testimony of a child.
Section 17 subsection 4 read in part, “… the accused shall not be liable to be convicted of the offence unless that evidence is corroborated by some supporting material evidence which implicates him.”
“If the only evidence against an accused person and he is charged for say a sexual offence … then he has to be acquitted,” explained Attorney General Samuel Bulgin as he proposed the amendment to the law by way of a bill before the Legislative Assembly on Monday.
Cases that come before Cayman’s courts involving victims who are minors often involve abuse of a physical or sexual nature. While the vast majority trials are able to go through the full process, which produces a verdict that takes into account all the evidence presented to the court, there are still instances where the trial is called off – simply because the only evidence is that of a child. The defendant is allowed to walk free.
One such instance was in 2017, when a then 57-year-old man was acquitted of indecently assaulting his partner’s 8-year-old daughter. The difficult judge-alone trial had no corroborating evidence to support the child’s testimony, and that, coupled with other issues, led to the judge dismissing the trial.
The passing of the amendment to the law does not mean that a defendant will automatically be convicted of a crime in cases where there is no corroborating evidence, to support the child’s testimony. Instead, it means the defendant must now face the full and formal procedure of going before the court, having a trial followed by a judge or jury deliberating and then coming to a verdict.
Bulgin said by repealing the section of the law, Cayman’s courts would have to then do a legal test to satisfy itself that the child understands the importance and significance of speaking the truth and is credible.
“Where that happens and the court is satisfied that the child is competent in that regard, then the person cannot be acquitted merely because the only evidence against him or her, for that matter, is that of a child,” said Bulgin.
Although the proposed change of law was not met with any resistance, some MLAs expressed concerns that it could potentially lead to a wrongful conviction.
“It appeared to me that we were removing some necessary safeguards, that may result in people being convicted on uncorroborated evidence,” said Newlands MLA Alva Suckoo.
However, Suckoo pointed to jurisdictions like the UK and Scotland where similar changes in law have been made.
“The research that they have used has demonstrated that child witnesses are no less reliable actually than adult witnesses,” said Suckoo. “Earlier studies that depicted child witnesses as dangerous have now being disputed.”
Suckoo said if the Youth Justice Law was left unchanged, it would continue to view child witnesses as “legally incompetent”.
The passing of the bill now brings the Youth Justice Act in line with Cayman’s Evidence Law, which also did away with a similar provision in 2018.