12. Preliminary issues relating to witnesses Flashcards
When is a witness competent?
If the witness may lawfully be called to testify.
General rule is that all persons, whatever their age, are competent to give evidence.
A witness is not competent where it appears to the court that they:
(a) cannot understand the questions put to him (i.e. being asked in court); and
(b) cannot give answers to them which can be understand (it’s okay if they can give understandable answers to some)
this may include children and persons with a disorder or disability of the mind.
Thus, a child who can speak basic English may be competent but not one who can only speak in baby language. No requirement that a witness is aware of his status of a witness or the importance of telling the truth in court.
Questions of credibility and reliability are not relevant to competence.
A person who has no recollection of an event may be perfectly competent.
There is no discretion, just seeing whether a witness fulfils this criteria.
When is a witness compellable?
When, being competent, the witness may lawfully be compelled to testify by the court
General rule is that all competent witnesses are compellable.
Exceptions are:
(a) not compellable for the defence (i.e. for him or herself) or a co-accused
(b) where they are (except in a number of specified cases) a spouse or civil partner for the prosecution or co-accused
(c) sovereigns, diplomats
(d) bankers
Can an accused be a witness for the prosecution?
No, they are not competent to do so.
A co-accused may only give evidence for the prosecution if he ceases to be a co-accused (i.e. acquitted, nolle prosequi, being tried separately, or pleads guilty)
Is the accused a competent witness for the defence?
Yes, including after conviction such as in mitigation of sentence.
There is current authority (contradicted by old) that the accused can elect whether to give evidence on voir dire.
Is the accused compellable for the defence?
No.
What restrictions are there on calling the spouse or civil partner of the accused?
They are compellable and competent to give evidence on behalf of the defence (unless charged).
They are only compellable for the prosecution where it is a specified offence (assault on, injury or threat of injury to, the spouse/civil partner or a person under the age of 16 at the material time, a sexual offence in respect of someone under 16 at the time, or attempting/procuring/aiding/counselling/inciting/abetting the commission of one of the above offences.
They are not compellable if charged in the proceedings.
A person no longer married/civil partners shall be compellable as if the marriage never occurred.
A spouse/civil partner is competent to give evidence for the prosecution, however, unless that person is also charged in the proceedings.
Who is a spouse or civil partner in which the restriction on calling may apply?
A person whose marriage or civil partnership would be recognised by English law (i.e. bigamous marriages are a no-no). Does not cover a cohabitee.
When may a witness be sworn for the purpose of giving evidence on oath?
May not be sworn 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 can give intelligible testimony (i.e. understand and give understandable answers) then they are presumed to have a sufficient appreciation of those matters unless shown otherwise on a balance of probabilities.
Any proceedings to determine whether a witness have a sufficient appreciation of those matters should take place in absence of the jury. Expert evidence may be received on the question and questioning of the witness shall be conducted in court in the presence of the parties.
Must a witness take an oath or affirm before evidence?
Yes, unless legislation otherwise provides.
A person who is competent but not permitted to swear can give unsworn evidence. A person called merely for the purpose of producing a document need not be sworn (no XX in these circumstances). However if the document is contested, the evidence must be given sworn to enable XX.
When should the oath be administered for a video recorded interview?
So long as they are over 14, before the start of XX.
Would unsworn evidence lead to an unsafe conviction?
No, if by reason only that a person should have be sworn.
Whose responsibility is it to secure attendance of witnesses?
Generally, the police for prosecution and defence solicitor for defence.
The steps taken will depend on the sensitivity of the witness and whether there is a fixed date or trial or a warned list.
How is a witness compelled to attend?
The Pros or Def can apply for a witness summons or warrant.
Provides that, where a magistrate is satisfied that:
(a) a person within the jurisdiction is likely to be able to give material evidence or produce any document or thing likely to be material evidence, for the purposes of a summary trial and
(b) it is in the interests of justice to issue a summons
Then a summons may be issued.
If satisfied on oath that a summons would likely not procure attendance, an arrest warrant may be issued instead.
What should happen where a witness summoned but fails to attend?
An arrest warrant can be issued, where satisfied:
(a) the witness is indeed likely to be able to give material evidence
(b) the witness has been duly served with the summons and been paid or tendered a reasonable sum for costs and expenses; and
(c) there is no just excuse for the failure to attend.
In respect of (a), it must be established on oath. (b) may be established either by evidence on oath or in another manner prescribed.
How is a witness summons served?
By handing it to the individual; or
by leaving it or sending it by first class post to an address where it is reasonable the individual will receive it.
