Miriam Delahunt
Recorded evidence
S.16 (1)(b) Criminal Evidence Act 1992 was commenced in 2008 and first used at trial in 2010 although the Act itself dates from 1992. It used to allow for victims under 14 to record their examination in chief testimony in relation to relevant offences under s.12 ( violence, sexual offences etc.)
It has now been amended to allow for child victims under 18 ( or persons with an intellectual disability - s.16 is included in s.19 Criminal Evidence Act 1992) to have their examination in chief testimony recorded in relation to relevant offences. It also allows for witnesses i.e. not victims (but not the accused) to have their examination in chief testimony recorded in relation to a sexual offence or certain offences under the Child Trafficking and Pornography Act 1998 or the Criminal Law (Human Trafficking) Act 2008.
So if appears that witnesses under 18 who have witnessed a violent act including murder are excluded from availing of the provision which seems illogical. The section doesn't follow the pattern of other support measures such as video link, intermediaries or screens where there is a general provision for vulnerable witnesses for relevant offences and then a separate victims provision for offences other than a relevant offence with the Court taking the factors such as secondary victimisation in S.14AA into consideration.
Here is the full section so you can double check for yourself (legislation revised up to March 2022)
Criminal Evidence Act 1992
16. Videorecording as evidence at trial
(1) Subject to subsection (2)
(a) a videorecording of any evidence given, in relation to [a relevant offence], by a person under 18 years of age through a live television link in proceedings under Part IA of the Criminal Procedure Act, 1967, and
(b) a video recording of any statement made during an interview with a member of the Garda SÃochána or any other person who is competent for the purpose—
(i) by a person who is under 18 years of age in relation to an offence of which he or she is a victim, or
(ii) by a person under 18 years of age (being a person other than the accused) in relation to—
(I) a sexual offence, or
(II) an offence under section 3(1), (2) or (3) of the Child Trafficking and Pornography Act 1998, or
(III) an offence under section 2, 4 or 7 of the Criminal Law (Human Trafficking) Act 2008,]
shall be admissible at the trial of the offence as evidence of any fact stated therein of which direct oral evidence by him would be admissible:
Provided that, in the case of a video recording mentioned in paragraph (b), the person whose statement was video recorded is available at the trial for cross-examination.
Amendment History
Subsection (1)(a) was substituted by s. 20 of the Criminal Justice Act 1999 (No. 10 of 1999), with effect from October 1, 2001 (Criminal Justice Act, 1999 (Part III) (Commencement) Order 2001).
Subsection (1)(a) amended by s.30(i) of the Criminal Justice (Victims of Crime) Act 2017 (No. 28 of 2017) with effect from 30 May 2018 (S.I. No. 173 of 2018).
Miriam