Eliciting Best Evidence from a Child Witness: A Comparative Study of the United Kingdom and India

Abstract

The successful prosecution of any criminal offence relies on evidence that proves its commission. Although the admissibility of evidence is key at first instance, the weight attached to a piece of evidence i.e. how “reliable” or “persuasive” it is will tilt the scale of justice in one or another direction. The problems with various forms of evidence i.e. that elicited from an eye or ear-witness has been thoroughly explored by academics and lawyers alike. Those same problems are potentially exacerbated where the witness is a child who has not only witnessed a gruesome crime but is required to give evidence in a forum (court) that is accompanied by intimidating surroundings. Whilst witness evidence, regardless of whether it is given by an adult or child, is a factual part of criminal justice, it is salient to note that the entire process has been made more witness-friendly in some commonwealth jurisdictions. This article explores the differences in the rules designed on eliciting best evidence from a child witness in the United Kingdom and India. In so doing, the case law from each jurisdiction is contrasted. There are two aims of the article, the first is to facilitate a conversation where one criminal justice system may learn from another’s experience. The second, a result of the first, is to make suggestions on improving the experience of a child witness in the Indian Criminal Justice Process.