#10378 - Witnesses Competence And Compellability - BPC Criminal Litigation (formerly BPTC) 2024/2025

WITNESSES: COMPETENCE AND COMPELLABILITY

Rules:

• To be allowed to give evidence, a witness must be “competent”

• To be required to give evidence (eg. by a witness summons), a witness must be “compellable”

Competence

Governed by Youth Justice and Criminal Evidence Act 1999

Presumption: All Witnesses are competent to give evidence (s53(1))

General Test – applied by Court when the Witness' competence is questioned (s53(3))

• A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to:

1. understand the questions put to him as a W, and

2. give answers to them that can be understood

Questioning W's Competence

s55(1) - Open to party/court of its own motion to question any Witness' competence

s53(3) – That party must then satisfy the criteria (prove) on the balance of probabilities

Child Witnesses

• Competence is Witness-specific – there should be no presumptions or preconceptions

• Witness does not need to be intelligible on every question

• It is a matter of judgement – age is a factor but decision concerns the individual Witness

• The witness' age not determinative of ability to give truthful/accurate evidence – credibility is an issue for the jury

Expert evidence can be called on the issue of a Witness' competence

Compellability

Rule: All competent Ws are compellable

Exceptions:

The Defendant

1. Not competent as a Witness for the P (unless no longer 'a person charged' i.e. G plea, acquittal, nolle prosequi)

• if pleads G and gives evidence against co-D:

  • Judge has discretion to exclude Defendant's evidence under s78 PACE/common-law, and

  • A “care warning” should be given to the jury about such evidence

2. Not compellable as a Witness for the Defence – gives evidence only “upon his own application”

3. Competent as Witness for co-D, and becomes compellable if no longer 'a person charged'

The Defendant differs from other Witnesses as:

1. Does not have privilege against self-incrimination – must answer all questions (s1(2) Criminal Evidence Act 1898)

2. If Defendant does give evidence – must be the first Defence Witness called

3. the Defendant is present throughout proceedings (other witnesses not allowed in courtroom until after they have given evidence)

4. s101-108 CJA 2003 dictates what bad character evidence regarding the Defendant may be adduced, admissibility of other Witness' bad character is governed by s100 CJA 2003

Defendant's Spouse/Civil Partner

1. As Witness for the Pros OR co-D - Competent (unless also 'a person charged') and NOT Compellable (unless specified offence AND NOT 'a person charged')

• “specified offence” - s80(3):

  1. offence involving assault/injury/threat of injury to:

     • the spouse, or

     • a person under-16 (at the time of the offence)

  2. sexual offence against a person under-16 (at the time of the offence)

  3. conspiring/attempting/aiding/abetting/inciting above offence.

• The Spouse is only compellable to give evidence against Defendant (and co-Defendant) in respect of the specified offence.

2. As Witness for the Defence - Competent and compellable (unless also 'a person charged')

3. Applies to all currently wedded spouses recognised by English law (NOT co-habitees)

Sworn Testimonial Evidence

If Witness is competent – Presumption: he will fulfil conditions to take the oath.

s55(2) YJCEA – Witness may not be sworn unless:

• over-14, and

• sufficient appreciation of the solemnity of the occasion and of his responsibility to tell the truth involved in taking the oath.

Witness cannot take Oath

Opposing party may adduce evidence that W does not fulfil conditions (rebuttable presumption)

Party calling Witness must then prove that the Witness does meet standards, on the balance of probabilities

Unsworn evidence: If proven that the Witness does not fulfil conditions –must give unsworn evidence (same penalties for perjury as sworn evidence) - applies to:

• Children

• Persons of unsound mind (jury can disregard if so tainted with insanity so as to be unworthy of credit)

Jury decides weight.

Form of Oath

Form does not matter – only matters that Witness positively indicated intention to be bound by his conscience.

If Witness objects to oath (in s1 Oaths Act 1978) – may take solemn affirmation (set out in s6 OA)

Failure to observe formalities in OA does not render evidence invalid, nor does...