#4746 - Witnesses Competence And Compellability - BPC Criminal Evidence

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: (a) understand the questions put to him as a W, and (b) 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 Understanding Questions Put & Giving Understandable Answers * When deciding, the court should consider Witness as having benefit of any available special measures * Witness does not need to be aware of status as a W - only to understand questions and give understandable answers. * Infant who can only speak in baby-language: not competent * Young child who can speak and understand basic English: competent * R v Sed - Do not require 100% comprehension/comprehensibility * For Judge to determine question of competence, taking into account Witness' performance as a whole * Consider whether there is a common comprehensible thread in answers * If on critical matters the Witness can be intelligible - it is for the Jury to determine his reliability and cogency. Child Witnesses * R v B - Additional guidelines on 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