#19560 - 9. Criminal Litigation 2023 2024 Evidence Relating To Witnesses - BPC Criminal Litigation (formerly BPTC) 2024/2025

• A witness is competent if the witness may lawfully be called to testify and is compellable if, being competent, the witness may lawfully be compelled by the court to testify.

Competence:

• All persons are competent unless they are unable to understand questions or they are unable to give answers which can be understood.

  • An accused is not competent as a witness for the prosecution. A co-accused may only give evidence for the prosecution if he ceases to be a co-accused. If an accused pleads guilty, he or she is competent for the prosecution even if the accused’s evidence suggest that they were not a participant in the offence, unless the plea is set aside.

  • The accused is a competent witness for the defence.

  • The spouse or civil partner of an accused is competent to give evidence for the prosecution and defence, unless also a person charged in the criminal proceedings.

  • A co-accused/accused will be competent but not compellable as a witness for the accused/co-accused.

• A child who can speak and understand basic English with strangers will be competent. They must be 14 to give sworn evidence.

Compellability:

• The general rule as to compellability is that all competent witnesses are compellable. There are four exceptions:

  • The accused is not a compellable witness for the defence, i.e for themselves or a co-accused.

  • An accused’s spouse or civil partner is, in the case of all but a number of specified offences, not compellable for either the prosecution or on behalf of a co-accused. They will be compellable for the accused, unless also charged in the proceedings.

  • Relates to the Sovereign, heads of other sovereign states and diplomates.

  • Relates to bankers.

Refusal to give evidence:

• Judges of the CC may exercise their power to punish summarily for contempt of court any compellable witness who refuses to give evidence.

• A witness who refuses to answer a proper question may be found in contempt of court and face the penalty of imprisonment.

• Unless legislation provides otherwise, before giving evidence a witness must take the oath or affirm.

• A child may not be sworn as a witness unless they are at least 14 and has a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath.

  • If there is any evidence to the contrary, it is for the party seeking to rely on the witness to satisfy that court on the balance of probabilities.

  • This will take place in the absence of a jury, expert evidence may be used, any question is in the presence of the parties.

• The attendance of witnesses for purposes of criminal proceedings in magistrates’ courts may be secured by the issue of a summons or warrant.

• Where the prosecution or defence wish to secure the attendance of a witness but are not satisfied that the witness will attend voluntarily, they can apply for a witness summons.

• It provides that the magistrate can do so where they are satisfied that:

  • Any person within the jurisdiction is likely to be able to give material evidence, or produce any document or thing likely to be material evidence, for purposes of a summary trial, and

  • It is in the interests of justice to issue a summons to secure the attendance of that person to give evidence or produce the document or thing,

• The witness summons may be served by handing it to the individual or by leaving it at, or sending it by first class, to an address where it is reasonable to believe that the individual will receive it.

• Should a person summoned fail to attend, the court may issue an arrest warrant where it is satisfied that:

  • The witness is indeed likely to be able to give material evidence or produce a material document or thing;

  • The witness has been duly served with the summon and been paid or tendered a reasonable sum for costs and expenses; and

  • There is no just excuse for the failure to attend.

• Failure to attend without a just excuse will lead to the person being guilty of contempt of court with a maximum penalty of three months imprisonment.

• In most cases, it is the responsibility of the police to secure the attendance of prosecution witnesses, and that of the defence solicitor to ensure that defence witnesses attend.

• The witness may not be asked leading questions. Evidence elicited by such questions is not inadmissible, but the weight attached to it may be substantially reduced.

• Discussions between witnesses should not take place, or statements read in each other’s presence. If this has taken place, the case must be dealt with on its own facts.

Memory refreshing (s.139 CJA 2003):

• A witness, in the course of giving evidence, may refer to a document in order to refresh their memory on two conditions:

  • The witness gives evidence that the document records his or her recollection at the time it was made

  • That their recollection at the time is likely to have been significantly better than at the time of oral evidence.

• The application to refresh memory will normally be made by an advocate but it is also a function of the judge.

• There can be no general rule that witnesses may not before trial see the statements which they made at some point reasonably close to the time of the events which are subject of the trial. Witnesses are entitled to refresh their memory.

• In some cases, it may be appropriate for the witness to withdraw from the box and read the statement in peace or have it read to them in the absence of the jury.

• If a witness has refreshed his or her memory out of court and before entering the witness-box, counsel for the other side is entitled not only to inspect the document but also to xx the witness upon the matters in it.

After going into the witness box:

• It is incumbent on prosecuting authorities and judges to ensure that witnesses are informed that they should not discuss cases in which they are involved.

• Discussions between witnesses should not take place, or statements read in each other’s presence. If this has taken place, the incident will be dealt with on its own facts.

• This is an exception to the rule against hearsay and against previous consistent statements in the case of a witness’s previous complaint.

• Under the statutory provisions, the witness's complaint, whether oral or written, is admissible subject to a number of conditions, principally:

  • That the witness testifies that to the best of his or her belief that he or she made the statement and it is true; or

  • That the witness claims that an offence was committed against him or her; or

  • That the offence is one to which the proceedings relate; and

  • That the complaint is about conduct which would, if proved, constitute the offence or part of it.

• A statement received under these provisions is admissible as evidence of the matters stated and also goes to the consistency of the witness.

• The complaint must not have been made as a result of a threat or a promise and before the statement is adduced the witness must give oral connection with its subject matter.

• There is a general common-law rule excluding previous consistent or self-serving statements. Under the rule, a witness may not be asked about a previous oral or written statement made by the witness and consistent with their evidence. Equally, the evidence may be given by any other witness. The previous statement, which may also be inadmissible as evidence of the facts contained in it under the rule against hearsay, is excluded as evidence of the accused's consistency.

• If the statement is purely exculpatory or self-serving, it is not admitted as evidence of the facts stated in it; it 'is evidence in the trial because of its vital relevance as showing the reaction of the accused when first taxed with the incriminating facts'

• The general rule applies in EIC, XX and re-EIC.

• Thus, the credibility of a witness may not be bolstered by evidence of a previous consistent statement.

• There are a number of exceptions:

  • Complaints;

  • Previous identification;

  • Description; and

  • Rebuttal of allegations of recent fabrications.

General rule against impeaching credit of own witness:

• The general rule is that a party is not entitled to impeach the credit of its own witness by asking questions or adducing evidence concerning such matters as the witness’s bad character, previous convictions, bias or previous inconsistent statements.

  • This rule prevails in the case of an unfavourable witness, the party may then call another witness.

• This rule is not impeached where bad character is used because it supports some other discrete part of the prosecution case.

• For hostile witnesses, the party may, by leave of the judge, prove a previous inconsistent statement of the witness.

• Equally, the prosecution may call a witness to give evidence only part of which they consider to be worthy of belief and may adduce other evidence to contradict that part of the witness's evidence which they consider to be inaccurate or false, and invite the jury to reject that part of the witness's evidence. That may be done without applying to treat the witness as hostile. However, unless the witness is declared hostile, evidence adduced to contradict the witness may not include a previous inconsistent statement.

Hostile and unfavourable...