Special Measures’ Applications for Victims and Vulnerable and Intimidated Witnesses in Malaysia: New Frontiers to Right to a Fair Trial?
DOI:
https://doi.org/10.32890/uumjls2014.5.6Keywords:
Vulnerable, intimidated, special measuresAbstract
Special treatment for victims and vulnerable and intimidated witnesses (VIWs) in a criminal process has developed over time in Western countries. The development of rights of victims’ and VIWs and awareness on their needs and interests in pre-trial process and court proceedings has initiated the use of special measures’ application. In England and Wales, some measures to lessen stress and trauma of such witnesses undergoing a criminal process were introduced into the legislations. Yet, as many other Asian countries, Malaysia developed her victims’ policy only in 1990s and issues relating to the protection of VIWs were raised within the criminal justice system just recently. The tendency to put the standpoint into practice in the Malaysian legal system is demonstrated in the establishment of the Evidence of Child Witness Act 2007 (ECWA 2007) and the amendment of Section 272B of the Criminal Procedure Code. On the other hand, it is also arguable that special measures’ applications for victims and VIWs will erode the right of defendants to a fair trial. This article aims at evaluating the current position of victims’ and VIWs’ rights and legal protection in the Malaysian criminal justice process. It elaborates on the rights of victims and other VIWs to special measures’ applications in pre-trial process and court proceedings. Special measures such as live TV-link, screens, removal of formal attire, intermediaries and visual aids communication are potential to accommodate victims’ and VIWs to give testimony in court. The use of video-recorded evidence is also evaluated as one of the means to facilitate traumatized victims and VIWs to give evidence and testimony. The possibility to enhance the use of special measures’ applications as one of the ways to advocate the right to a fair trial of victims and VIWs, without eroding the rights of the defendants, is also highlighted in this article.
Keywords: Vulnerable, intimidated, special measures.
References
Abdul Rani Kamarudin, ‘Between the Adversarial and the Inquisitorial Trial’ [2007] 2 MLJ xi; [2007] 2 MLJA 11. Abidah Abdul Ghafar, Legal Protection for Vulnerable and Intimidated Witnesses (VIWs) from the Perspective of Human Rights: An Analysis in the Malaysian Criminal justice
System, PhD Thesis (Leicester, 2011). Amirthalingam Kumaralingam, ‘A Feminist Critique of Domestic Violence in Singapore and Malaysia’, Asia Research Institute Working Paper Series No. 6, (Singapore: NUS 2003) 15. Birch DJ, ‘A Better Deal for Vulnerable Witnesses’ [2000] Crim LR 223. Bull R, ‘Interviewing witnesses with communicative disability’, in Handbook ofPsychology in Legal Contexts Edited by Ray
Bull and David Carson (Chichester: Wiley 1995). Burton M, Evans R and Sanders A, ‘Implementing Special Measures for Vulnerable and Intimidated Witnesses: The Problem of Identification’ [2006c] Crim LR 229.
CJA 2009 Michael Tonry, ‘’Rebalancing the criminal justice system in favour of the victim’: the costly consequences of populist rhetoric’ in Hearing the Victim: Adversarial Justice, Crime Victims and the State, eds. Anthony Bottoms and Julian V. Roberts (Portland and Devon: Willan Pub. 2010) 72-103, 76. Burton M, Evans R and Sanders A, ‘Protecting children in criminal proceedings: Parity for child witnesses and child defendants’ (2006b) 18(3) Child and Family Law Quarterly 397, 404. Burton M, Evans R and Sanders A, Are Special Measures for Vulnerable and Intimidated Witnesses Working? Evidence from the Criminal Justice Agencies (London: Home Office 2006a). Davies G and Noon E, An Evaluation of the Live Link for Child Witnesses (London: Home Office 1991). European Convention for Protection of Human Rights 1953, Article 6(2). Hamlyn B, Phelps A, Turtle J and Ghazala Sattar, Are Special Measures Working? Evidence from Surveys of Vulnerable and Intimidated Witnesses, HORS 283, (London: Home Office 2004). Home Office, Speaking up for justice: Report of the Interdepartmental Working Group on the Treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System (London: Home Office 1998). Hoyano LC and C Keenan, Child Abuse: Law and Policy Across Boundaries (Oxford: OUP 2010). Hoyano LC, ‘Coroners and Justice Act 2009: special measures directions take two: entrenching unequal access to justice’ (2010) 5 Crim L.R. 345-367. Hoyano LC, ‘Striking a Balance between the Rights of Defendants and Vulnerable Witnesses: Will Special Measures Directions Contravene Guarantees to a Fair Trial?’ [2001] Crim LR 948. Ian Marsh, John Cochrane and Gaynor Melville, Criminal Justice: An Introduction to Philosophies, Theories and Practice, (London: Routledge 2004) 98. Milne R and Bull R, ‘Interviewing by the police’ in Handbook of Psychology in Legal Contexts Edited by David Carson and Ray Bull (2nd edn, Chichester: Wiley 2003). Milne R and Bull R, Investigative Interviewing: Psychology and Practice (Chichester: Wiley 1999). Nithiyanantham Murugesu, ‘The Role of the Law and the Courts in Preventing the Abuse of Children – The Malaysian Perspective’ [2010] 5 MLJ cxxv; [2010] 5 MLJA 125. Nor Shafrin Ahmad and Rohany Nasir, ‘Emotional Reactions and
Behaviour of Incest Victims’, (2010) 5 Procedia Social and Behavioral Sciences 1023-27. Plotnikoff J and Woolfson R, ‘In Their Own Words: The Experiences of 50 Young Witnesses in Criminal Proceedings’ (London: NSPCC/ Victim Support 2004). Rhonda P, ‘R (D) v Camberwell Green Youth Court – child witnesses deemed to be in “need of special protection” and the European
Convention’ (2006) 18(4) Child and Family Law Quarterly 562. Roberts P, Cooper D and Judge S, ‘Monitoring success, accounting for failure: The outcome of prosecutors’ applications for special measures directions under the Youth Justice and
Criminal Evidence Act 1999’ (2005) 9(4) Intl J Evidence Proof 269. Spencer JR, ‘Criminal Procedure: the Rights of the Victim, Versus the Rights of the Defendant’ in Reconcilable Rights? Analysing the Tension between Victims and Defendants, ed. Ed Cape (London: LAG 2004) 37-51. Spencer JR. and Flin R, The Evidence of Children: The Law and the Psychology (London: Blackstone Press 1990). SUHAKAM, Convention on the Rights of the Child: Report of the Roundtable Discussion, (Kuala Lumpur: SUHAKAM 2005). Tatsuya Ota, ‘Introduction: The Development of Victimology and Victim Support in Asia’, Victims and Criminal Justice: Asian Perspective (Tokyo: Keio University 2003) 3. Tonry M, ‘’Rebalancing the criminal justice system in favour of the victim’: the costly consequences of populist rhetoric’ in Hearing the Victim: Adversarial Justice, Crime Victims and the State, Edited by Anthony Bottoms and Julian V. Roberts (Portland and Devon: Willan Pub. 2010) 72-103. United Nations High Commissioner for Human Rights (UNHCHR), Article 1 of the Convention on the Rights of the Child (CRC), http://www.unhchr.ch/html/menu3/b/k2crc.htm, accessed 20 July 2013. United Nations, United Nation Declaration of Human Rights 1948, http://www.un.org/Overview/rights.html, accessed 25 June 2013. United Nations, United Nations International Covenant on Civil and Political Rights, Article 14(2).
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