12. Preliminary issues relating to Witnesses. Oaths and affirmations Flashcards
Sworn Evidence
Whether a child (or person of unsound mind) may be sworn for the purpose of giving evidence on oath is governed by the YJCEA 1999, s. 55.
A witness may not be sworn for this purpose unless the witness has attained the age of 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 the witness is able to give intelligible testimony, i.e. is able to understand questions put to him or her as a witness and give answers to them which can be understood the witness is presumed to have a sufficient appreciation of those matters unless any party adduces evidence tending to show the contrary.
If any such evidence is adduced, it is for the party seeking to have the witness sworn to satisfy the court, on a balance of probabilities, that the witness has attained the age of 14 and has a sufficient appreciation of the matters in question.
Any proceedings held for the determination of the question whether a witness may be sworn for the purpose of giving evidence on oath should take place in the absence of the jury.
Expert evidence may be received on the question and any questioning of the witness shall be conducted by the court in the presence of the parties.
General Rule and Exception
Unless legislation otherwise provides, before giving evidence a witness must take an oath or affirm.
The evidence of a person who is competent to give evidence but who is not permitted to be sworn, shall be given unsworn and at common law a witness called merely for the purpose of producing a document need not be sworn.
As to the latter situation, the witness, if not sworn, is not liable to cross-examination. However, if the identity of the document is disputed, and must be established, this must be done by sworn evidence.
Where a video recording of an interview with a child is admitted under the YJCEA 1999, s. 27, and the child is then aged 14 or over, the oath should be administered before the start of the cross-examination.
Under the YJCEA 1999, s. 56(5), where a witness who is competent to give evidence in criminal proceedings has given evidence unsworn, no conviction, verdict or finding in those proceedings shall be taken to be unsafe for the purposes of the grounds of appeal in the Criminal Appeal Act 1968, s. 2(1), 13(1) or 16(1), by reason only that the witness was a person falling within s. 55(2) of the 1999 Act and therefore should have given evidence on oath.
