12. Preliminary issues relating to Witnesses. Competence and computability Flashcards
Meaning of Competence and Compellability
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
General Rule as to Competence
The general rule as to competence is that all persons are, whatever their age, competent to give evidence.
There are only two exceptions. Under the first exception, a person is not competent if the person is unable to understand questions put to him or her as a witness and to give answers to them which can be understood.
The types of witness who, under this test, may be incompetent are children and persons with a disorder or disability of the mind. Under the second exception, an accused is not competent to give evidence for the prosecution.
Youth Justice and Criminal Evidence Act 1999, s. 53
(1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.
(2) Subsection (1) has effect subject to subsections (3) and (4).
(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 questions put to him as a witness, and
(b) give answers to them which can be understood.
(4) A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings).
(5) In subsection (4) the reference to a person charged in criminal proceedings does not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason).
General Rule as to Compellability
The general rule as to compellability is that all competent witnesses are compellable. There are four categories of exception. Under the first, the accused is not a compellable witness for the defence, i.e. for him or herself or a co-accused.
Under the second exception, 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.
The third exception applies in the case of the Sovereign, heads of other sovereign States and diplomats.
The fourth relates to bankers.
As a Witness for the Prosecution
An accused is not competent as a witness for the prosecution. Under the YJCEA 1999, s. 53(4):
‘A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings)’. A co-accused may only give evidence for the prosecution if he or she ceases to be a co-accused.
Section 53(5) provides that:
‘In subsection (4) the reference to a person charged in criminal proceedings does not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason)’.
‘Other reasons’ why a co-accused may not, or may no longer, be liable to be convicted, are that the co-accused has been acquitted or is to be tried separately or that the A-G has entered a nolle prosequi. If an accused pleads guilty, he or she is competent for the prosecution even if the accused’s evidence suggests that he or she was not a participant in the offence, unless the plea is set aside
As a Witness on One’s Own Behalf
The accused is a competent witness for the defence pursuant to the YJCEA 1999, s. 53(1), whereby ‘At every stage in criminal proceedings all persons are … competent to give evidence’. The phrase ‘at every stage in criminal proceedings’ allows the accused to give evidence not only in the trial itself, but also after conviction, in mitigation of sentence.
There is some old authority to the effect that the accused is not entitled as of right to give evidence on the voir dire but that the court may in its discretion allow the accused to give evidence at this stage if the justice of the case makes this desirable.
The wording of s. 53(1), however, supports the current practice, which is for the accused to elect whether to give evidence on the voir dire.
The accused is not a compellable witness for the defence. Under the Criminal Evidence Act 1898, s. 1(1), ‘A person charged in criminal proceedings shall not be called as a witness in the proceedings except upon his own application’
The Spouse or Civil Partner of the Accused
Police and Criminal Evidence Act 1984, s. 80
(2) In any proceedings the spouse or civil partner of a person charged in the proceedings shall, subject to subsection (4) below, be compellable to give evidence on behalf of that person.
(2A) In any proceedings the spouse or civil partner of a person charged in the proceedings shall, subject to subsection (4) below, be compellable—
(a) 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
(b) to give evidence for the prosecution but only in respect of any specified offence with which any person is charged in the proceedings.
(3) In relation to the spouse or civil partner of a person charged in any proceedings, an offence is a specified offence for the purposes of subsection (2A) above if—
(a) it involves an assault on, or injury or a threat of injury to, the spouse or civil partner or a person who was at the material time under the age of 16;
(b) it is a sexual offence alleged to have been committed in respect of a person who was at the material time under that age; or
(c) it consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within paragraph (a) or (b) above.
(4) No person who is charged in any proceedings shall be compellable by virtue of subsection (2) or (2A) above to give evidence in the proceedings.
(4A) References in this section to a person charged in any proceedings do not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason).
(5) In any proceedings a person who has been but is no longer married to the accused shall be compellable to give evidence as if that person and the accused had never been married.
(5A) In any proceedings a person who has been but is no longer the civil partner of the accused shall be compellable to give evidence as if that person and the accused had never been civil partners.
(6) Where in any proceedings the age of any person at any time is material for the purposes of subsection (3) above, his age at the material time shall for the purposes of that provision be deemed to be or to have been that which appears to the court to be or to have been his age at that time.
(7) In subsection (3)(b) above ‘sexual offence’ means an offence under the Protection of Children Act 1978 or Part 1 of the Sexual Offences Act 2003, or an offence under section 2 of the Modern Slavery Act 2015 (human trafficking) committed with a view to exploitation that consists of or includes behaviour within section 3(3) of that Act (sexual exploitation).
The reference in s. 80(3)(c) to incitement has effect as a reference to (or to conduct amounting to) the offences of encouraging or assisting crime under Part 2 of the SCA 2007
As a Witness for the Prosecution
The spouse or civil partner of an accused is competent to give evidence for the prosecution unless also ‘a person charged’ in the criminal proceedings.
A spouse or civil partner is competent under s. 53(1) irrespective of whether the evidence to be given will be directed against the accused or any co-accused.
As to compellability, the rule, subject to one exception, is that the spouse or civil partner shall be compellable to give evidence for the prosecution, but only in respect of any ‘specified offence’ with which any person is charged in the proceedings
The exception is where the spouse or civil partner is also charged in the proceedings.
It is submitted that the words ‘spouse’ and ‘civil partner’ used in s. 80 refer to persons whose marriage or civil partnership (wherever celebrated) would be recognised by English law.
In Khan a decision on the common law before the 1984 Act came into force, it was held that a woman who had gone through a Muslim ceremony of marriage with D who was already married under English law to another woman, was in the same position as a mistress, a woman who had not gone through a ceremony of marriage at all or one who had gone through a ceremony of marriage which was void because bigamous.
In Pearce it was held that the words ‘wife or husband of the accused’ which appeared in s. 80 prior to its amendment by the YJCEA 1999, do not cover a cohabitee of an accused who is not married to the accused, and that proper respect for family life, as envisaged by the ECHR, Article 8, does not require that such a cohabitee should not be compelled to give evidence.
See also Der Heijden v The Netherlands compelling a cohabitee, in a relationship of 18 years duration and out of which two children were born, to give evidence against her partner would interfere with her right to respect for family life under Article 8, but under Article 8(2) would be ‘necessary … for the prevention of … crime’.
As a Witness for the Accused
The spouse or civil partner of an accused is competent to give evidence for the accused and shall be compellable to give evidence for the accused unless also charged in the proceedings
Test for Competence
Children and Persons with a Disorder or Disability of the Mind
The competence of a child (or person with a disorder or disability of the mind) to give evidence in criminal proceedings, and the question whether he or she should give sworn or unsworn evidence, are governed by the YJCEA 1999, ss. 53 to 56.
As to competence, the rule is that all persons are (whatever their age) competent to give evidence but a person is not competent if it appears to the court that the person is not able to (a) understand questions put to him or her as a witness and (b) give answers to them which can be understood.
In MacPherson it was held that the words ‘put to him as a witness’ mean the equivalent of ‘being asked of him in court’. Accordingly, an infant who can only communicate in baby language with its mother will not ordinarily be competent, but a child who can speak and understand basic English with strangers will be competent. It was also held that there is no requirement that the witness be aware of his or her status as a witness and that questions of credibility and reliability are not relevant to competence but go to the weight of the evidence and may be considered, if appropriate, on a submission of no case to answer. Equally, a person who has no recollection of an event may be a perfectly competent witness.
he following propositions relating to s. 53 derive from Barker:
(a) In each case, the question under s. 53 is whether the individual witness or child is competent to give evidence in the particular trial. The question is entirely witness or child specific.
(b) There are no presumptions or preconceptions.
(c) The witness does not need to understand the special importance of telling the truth in court and does not need to understand every single question or give a readily understandable answer to every question. Dealing with it broadly and fairly, provided the witness can understand the questions and can also provide understandable answers, the witness is competent.
(d) Questions, of course, come from both sides. If the child is called as a witness by the prosecution, the child should have the ability to understand the questions put by the defence as well as the prosecution and to provide answers to them which are understandable.
(e) Section 53 requires not the exercise of a discretion, but the making of a judgment on whether the witness fulfils the statutory criteria.
