#15442 - Preliminary Issues Relating To Witnesses - BPC Criminal Evidence

Syllabus 12: Preliminary Issues Relating to Witnesses

A competent witness is one who may be called to give evidence; a compellable witness is one who, being comment, may be compelled by the court to give evidence

• Not compelled per se. If witness refuses to answer questions during examination, then the witness will be sanctioned for contempt

• Also possible at closing statements to tell jury that witnesses' unwillingness to answer can affect her credibility

No party has property in the evidence of a witness

R v Kelly [1985]: once a witness in criminal proceedings has given evidence for protection, he cannot be called to give evidence for the defence

R v Davies [2002]: expert witness may not be called by one party if his opinion is based on privileged information, and cannot be divorced from it

3. General Rule

s 53(1) Youth Justice and Criminal Evidence Act 1999: everyone is a competent witness ‘in any stage of the proceedings’

• Exceptions: children, persons with disorder or disability of the mind, and accused in relation to being a prosecution witness

• Eg. of 'Any stage': Newton hearing (guilty but not as serious as P makes out), appeal by rehearing, void dere

All competent witnesses are compellable

• Exceptions: accused, accused’s spouse or civil partner, heads of sovereign states, diplomats and bankers (in certain circumstances)

4. The Accused

1. For the prosecution

s 53(4) YJCEA: accused, whether charged solely or jointly, is not competent as a witness for the prosecution

• Exception per s 53(5): co-accused may be called as prosecution witness when he ceases to be a co-accused; e.g.:

  • Result of pleading guilty

  • Co-accused acquitted

  • Application to sever indictment is successful so that he is not tried with accused

  • AG files nolle prosequi (the dismissal or termination of legal proceedings)

2. For himself

Accused is a competent (s 53 YJCEA) but not a compellable witness (s 1(1) Criminal Evidence Act 1898) for the defence in all criminal proceedings

• Accused who is a witness is treated like any other witness and his evidence will be evidence for all purposes of the case

  • Evidence of accused in his own defence can be used against co-accused case, e.g. R v Paul [1920] 2 KB 183

s 1(2) Criminal Evidence Act 1898 removes from the accused who testifies the privilege against self-incrimination in respect of any offence he is charged with, subject to s 101 of Criminal Justice Act 2003

• s 101 provides circumstances where bad character evidence is admissible

R v Bevan [1993] 98 Cr App R 354 (CA): where accused elects not to give evidence, counsel should record the decision and have the accused sign the record, giving clear indication that he has by his own will decided not to testify bearing in mind the advice given to him by counsel

3. For the co-accused

s 53(1) YCJEA and s 1(1) CEA 1898: accused is competent but not compellable witness for co-accused

• But where accused ceases to be an accused, he is both competent and compellable for a co-accused

5. Spouse or Civil Partner of Accused

1. For the prosecution

Originally, spouse/civil partner not competent witness

But following s 53(1) YJCEA, spouse/civil partner of an accused is now competent for the prosecution

• Subject to s 53(3) and s 53(4)

  • Thus, where both husband and wife are co-accused, whether charged jointly for same offence or charged with different offences, neither is competent to give evidence for prosecution

In terms of compellability, s 80(2A) of PACE 1984 provides that spouse/civil partners are compellable in the following circumstances, subject to s 80(4):

• To give evidence on behalf of any other person charged in the proceedings but only in respect of any specified offence with which that other person is charged; or

• To give evidence for the prosecution but only in respect of any specified offence with which any person is charged in the proceedings

  • See s 80(3) on definition of ‘specified offence’

R v A (B) [2012] 2 Cr App R 467 (CA): court noted three anomalies s 80(2A) and (3) give rise:

• Restriction on compellability only applies to spouse and civil partners, not cohabitees regardless of how long they have stayed together

• Judge has the discretion to admit hearsay statement by spouse/civil partner even if not compellable, under s 114(2) CJA 2003

• Accused may be charged with two or more offences in respect of only one of which spouse/civil partner is compellable; artificial distinction

R v L (R) [2008] 2 Cr App R 243 (CA): no requirement to inform spouse that she is not compellable before P interviewing her

2. For the accused

s 53(1) YCJEA: spouse/civil partner is competent to give evidence on behalf of accused

s 80(2) PACE 1984: spouse/civil partner is compellable to give evidence on behalf of accused

3. For co-accused

s 53(1) YCJEA: spouse/civil partner is competent to give evidence on behalf of accused

s 80(2A), (3) PACE 1984: spouse/civil partner is compellable to give evidence for co-accused only in respect of any specified offence with which that other person is charged

4. Former spouses

s 80(5) and (5A) CEA 1984: formers spouses are both competent and compellable

But spouses who are judicially separated are not former for the purposes of s 80(5)

6. Children and Persons with Mental Disorder or Disability - Criminal Cases

1. The competence test

s 53(3) YCJEA: a person is not competent if it appears to the court that he is not a person able to:

• Understand questions put to him as a witness, and

• Give answers to them to which can be understood

R v MacPherson [2006] 1 Cr App R 459, CA held:

• Judge need not decide whether child appreciates difference between truth and falsehood

• No requirement that child be aware of his witness status

• Questions of credibility and reliability are not relevant to competence but goes to weight

DPP v R [2007] All ER 176: child who has no recollection of an event may be a competent witness

R v Barker [2010] EWCA Crim 4, CA held:

• In considering s 53, question is witness and trial specific, and there are no presumptions

• Witness does not need to understand the special importance of telling the truth in court

• s 53 requires not the exercise of a discretion, but the making of a judgment on whether the witness fulfils the statutory criteria

In relation to children: the younger, the less likely s 53 is satisfied

• R v Powell [2006] 1 Cr App R 468 (CA): age cannot be the sole basis of denying competence of a child

• Lord Lane CJ in R v Z [1990] 2 All ER 971 (CA) disproved of previous precedent that denied competence of child witnesses solely on the basis of age (e.g. R v Wallwork [1958], R v Wright, R v Omerod [1987] (CA))

R v Sed [2005] 1 Cr App R 55 (CA): concerned competence of 81-year-old woman suffering from Alzheimer

• Court held s 53 may not always require 100% or near 100% mutual understanding between questioner and questioned

• The length and nature of questioning and complexity of subject matter can be taken into account

• Judge should make allowance for the fact that witness’ performance and command of detail may vary according to importance to him of the subject matter, how recent it was, and strong feelings it may have engendered

2. The procedure

s 54(1) YJCEA: question of competence can be raised by either parties or the court, but must be determined by the court in accordance with s 54

• s 54(2): burden is on party calling the witness to satisfy on the balance of probabilities

• s 54(4): determination of competency is to take place in the absence of jury

• s 54(5): expert evidence may be considered

• s 54(6): any questioning of witness shall be conducted by court in the presence of parties

Child’s competence is normally decided before sworn in

• Decision that child is competent should be kept under review and may need to be reconsidered when his evidence is complete

• R v R [2010] EWCA Crim 2469: a child’s evidence should not be excluded where he no longer has a reliably independent memory of the events

  • It is not infrequent for witnesses to have no such memory and to be able to say no more than that their statement is accurate

• Under mandatory terms of s 56(2), evidence of a child under 14 who is competent must be given unsworn

  • Same applies where child above 14 but fulfils s 55(2) criteria, i.e. no sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth, and party seeking to rely on child witness fails to show such appreciation on balance of probability

Sworn evidence is evidence given by a witness who has either taken an oath or made an affirmation

General rule in both civil and criminal proceedings: evidence of any witness should be sworn

Exception:

• Evidence of children under 14 (s 56(2)) and mentally disabled persons

  • Where a video recording of an interview with a child is admitted in evidence, and child is at that stage 14 years or over, oath should be administered before start of cross-examination: R v Simmonds [1996] Crim LR 816 (CA)

• Perry v Gibson [1834]: witness called only to produce a document may given unsworn evidence provided that the identity of the document is either not disputed or can be established by another witness

• Hickman v Berens [1895]: counsel acting for one or two parties who have reached a compromise may give unsworn evidence of its terms

Modern law of oaths and affirmations governed by Oaths Act 1978

• s 1(2): administration of oath in the case of...