44NDirection on language and cognitive skills of child witness

44N Direction on language and cognitive skills of child witness

(1) If, before any evidence is adduced in the trial and after hearing submissions from the prosecution and defence counsel (or, if the accused is unrepresented, the accused), the trial judge considers that the reliability or credibility of a child witness is likely to be in issue, the trial judge—

(a) must direct the jury in accordance with subsection (4) before any evidence by the child is adduced, unless there are good reasons for not doing so; and

A good reason may be that the child is 17 years old and the trial judge considers that the direction is unnecessary because the child has well developed language and cognitive skills.

(2) If, at any other time during the trial, the trial judge considers that the reliability or credibility of a child witness is likely to be in issue, the trial judge must direct the jury in accordance with subsection (4) as soon as is practicable, unless there are good reasons for not doing so.

(4) In giving a direction under this section, the trial judge must inform the jury that—

(a) children can accurately remember and report past events; and

(b) children are developing language and cognitive skills, and this may affect—

(i) whether children give a detailed, chronological or complete account; and

(ii) how children understand and respond to the questions they are asked; and

(c) experience shows that, depending on a child's level of development, they—

(i) may have difficulty understanding certain language, whether because that language is complicated for children or complicated generally; and

1 Hypothetical, ambiguous, repetitive, multi-part or yes/no questions.

2 The use of the passive voice, negatives and double negatives.

(ii) may have difficulty understanding certain concepts, whether because those concepts are complicated for children or complicated generally; and

Relative concepts such as time, duration, measurement or frequency.

(iii) may not request the clarification of a question they do not understand; and

(iv) may not clarify an answer they have given that has been misunderstood.

(5) This section does not limit what the trial judge may include in any other direction to the jury in relation to the evidence of a child witness.