Model Guidelines for Recording of Evidence of Vulnerable Witnesses-2024 in accordance with the new Criminal Laws.

 

https://drive.google.com/file/d/1KRGNTn8uzQ_TfX4BWJY2h5_PmyMFJ4Im/view?usp=sharing

 

Guidelines for Recording of Evidence of Vulnerable Witnesses, 2024

Objectives and Purpose

·       Enable vulnerable witnesses to depose freely in a safe and secure environment

·       Minimize harm or secondary victimization during participation in the justice system

·       Ensure effective implementation of rights for all parties - accused's right to fair trial, victim's right to participate effectively, and vulnerable witness protection

Definition of Vulnerable Witnesses

·       Children: Any child victim or witness under 18 years of age

·       POCSO victims: Any victim of offenses under the POCSO Act, 2012

·       Sexual offense victims: Victims under specific sections of Bharatiya Nyaya Sanhita, 2023

·       Persons with disabilities: As defined under Rights of Persons with Disabilities Act, 2016

·       Mental health: Witnesses with mental illness under Mental Healthcare Act, 2017

·       Threat perception: Witnesses under Witness Protection Scheme, 2018

·       Court discretion: Any other witness deemed vulnerable by the concerned court

Competency Assessment

·       Presumption: Every vulnerable witness presumed competent to testify unless prevented by tender years, disability, or illness

·       Assessment method: Only presiding judge conducts competency examination

·       Prohibited questions: No "general knowledge" or philosophical questions about truth

·       Authorized attendees: Judge, counsel, guardian, support persons, interpreters, and other necessary persons

Pre-Trial Preparation

·       Court house tours: Vulnerable witnesses allowed pre-trial visits with support persons to familiarize with layout

·       Judge meetings: Judge may meet vulnerable witness before testimony to explain court process

·       Fear discussion: Address particular fears or concerns regarding safety and upcoming deposition

·       Special measures demonstration: Show use of screens, live links where applicable

Support Systems

·       Support persons: Court allows presence of chosen support person during deposition

·       Interpreter assistance: Qualified interpreters, translators, special educators provided when necessary

·       Legal aid: Vulnerable witnesses facilitated with legal counsel and free legal aid

·       Guardian ad litem: May be appointed for child witnesses considering their best interests

Court Environment and Accessibility

·       Separate waiting areas: Safe waiting rooms with toys, books, games, and comfort items

·       Accessible facilities: Wheelchair access, toilets, drinking water, and disability accommodations

·       Comfortable seating: Witness may testify from places other than witness chair

·       Judicial robes: Judge may dispense with formal robes for child comfort

·       Creche facilities: Child care available for witnesses needing such support

Special Measures and Testimonial Aids

·       Live-link testimony: Video testimony from outside courtroom when substantial likelihood of trauma

·       Screens and barriers: One-way mirrors, curtains, screens to prevent visual contact with accused

·       In-camera proceedings: Mandatory for certain cases, discretionary for others to protect privacy

·       Recording provisions: Video/audio recording under protective orders with strict access controls

Questioning Guidelines

·       Simple language: Questions kept simple and developmentally appropriate

·       Protection from harassment: Court controls questioning to prevent intimidation and character assassination

·       Narrative testimony: Vulnerable witnesses allowed to testify in narrative form

·       Multiple accused cases: Steps to minimize repetitive questioning

·       Question restrictions: Avoid compound questions, double negatives, multiple meanings

Privacy and Safety Protection

·       Identity concealment: Names, addresses, and identifying information protected from public disclosure

·       Sealed records: Court records containing identifying information kept confidential

·       Protective orders: Strict controls on access to video/audio recordings

·       Personal safety: Right not to testify regarding information that could endanger physical safety

Protective Measures

·       Contact prohibition: Direct or indirect contact between vulnerable witness and accused prevented

·       Restraint orders: Court may issue protective restraining orders

·       Police protection: Safeguarding whereabouts and providing security when needed

·       Witness Protection Scheme: Referral to competent authority under 2018 scheme for high-risk cases

Additional Guidelines for Child Witnesses

·       Age-appropriate questioning: Questions suitable to child's developmental level focusing on ability to remember and communicate

·       Appropriate timing: Testimony scheduled when child is well-rested, not conflicting with school/meals

·       Frequent breaks: Reasonable periods of relief during testimony based on age and developmental needs

·       Body diagrams: Use of outline diagrams instead of having child demonstrate on own body

·       Virtual examination: Standard Operating Procedure for remote examination when child doesn't reside near court

Compensation and Monitoring

·       Mandatory consideration: Court must apply mind to compensation in every case involving vulnerable witness victims

·       Annual review: Implementation reviewed annually by High Court through independent research bodies

·       Guideline updates: Regular updates based on legal developments and recommendations

                          

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