2. Preliminary Issues Relating to Witnesses Flashcards
What is the meaning of competence and compellability?
Competence refers to whether a witness may lawfully be called to testify, based on their ability to understand questions and give understandable answers. Compellability refers to whether a competent witness may be lawfully compelled by the court to testify.
What are the general rules as to competence?
The general rule of competence is that all persons are considered competent to give evidence, regardless of age, unless they cannot understand questions put to them or give understandable answers, which might apply to children or persons with disabilities. The accused is not competent to give evidence for the prosecution.
What are the general rules as to compellability?
The general rule of compellability is that all competent witnesses are compellable. Exceptions include the accused not being compellable for the defence or a co-accused, a spouse or civil partner not being compellable for certain offences, and diplomatic immunity extending to heads of state and diplomats.
Can the accused serve as a witness for the prosecution?
An accused is not a competent witness for the prosecution unless they cease to be a co-accused, such as by pleading guilty unless the plea is set aside.
Can the accused serve as a witness for their own defence?
The accused is a competent witness for their own defence and may elect to give evidence not only during the trial but also after conviction, in mitigation of sentence. However, the accused is not a compellable witness for their own defence.
What are the rules regarding the spouse or civil partner of the accused as a witness?
The spouse or civil partner of the accused is competent and compellable to give evidence on behalf of the accused, and for the prosecution but only in respect of specified offences. They are not compellable on behalf of a co-accused except for the specified offences.
What are the specified offences for which a spouse or civil partner are compellable?
Specified offences for which a spouse or civil partner of the accused are compellable include offences that involve assault, injury, or threat of injury to the spouse or a person under 16, sexual offences committed against a person under 16, and crimes such as attempting, conspiring, aiding, abetting, counselling, or procuring the above offences.
Can the spouse or civil partner of the accused be a witness for the defence?
The spouse or civil partner of the accused is both competent and compellable to give evidence for the accused unless they are also charged in the proceedings.
How are children and persons with a disorder or disability of the mind treated in terms of competence?
Children and persons with a disorder or disability of the mind are generally competent witnesses unless they cannot understand the questions put to them as a witness and give answers which can be understood. There is no requirement for them to understand their status as a witness or to have a recollection of the event about which they are to testify.
What governs the giving of sworn evidence?
A witness may only give sworn evidence if they have attained the age of 14 and have a sufficient appreciation of the solemnity of the occasion and the particular responsibility to tell the truth involved in taking an oath. The decision about whether a witness may be sworn should occur in the absence of the jury, with the court possibly receiving expert evidence on the question
What are the general rules and exceptions for oaths and affirmations?
Unless legislation specifies otherwise, witnesses must take an oath or affirm before giving evidence. Competent persons who are not permitted to be sworn can give evidence unsworn. Witnesses merely called to produce a document need not be sworn, meaning they cannot be cross-examined unless identity of the document is disputed and must be established, requiring them to be sworn.
How is the attendance of witnesses secured in the magistrates’ court via a witness summons?
In the magistrates’ court, the attendance of witnesses can be secured by issuing a witness summons. The magistrate must be satisfied that the witness is likely to provide material evidence or something likely to be material evidence for a summary trial and that it is in the interests of justice to issue the summons. This power is also given to justices’ clerks.
What are the provisions for issuing an arrest warrant for witnesses in the magistrates’ court?
Should a person summoned fail to attend as required, the court may issue an arrest warrant. The court must be satisfied that the witness is likely to provide material evidence, that the witness has been duly served with the summons and been paid or tendered expenses, and there is no just excuse for the failure to attend. This must be established by evidence on oath.
How is the attendance of witnesses secured in the Crown Court?
In the Crown Court, it is generally the responsibility of the police to secure the attendance of prosecution witnesses and the defense solicitor to ensure that defense witnesses attend. If a witness’s attendance is not assured voluntarily, the prosecution or defense may apply for a witness summons to compel attendance.
What are the rules for compelling the attendance of a witness in the Crown Court?
In the Crown Court, if the attendance of a witness is doubtful, the prosecution or defense can apply for a witness summons. This process is used to secure both the attendance of witnesses and the production of documents. The summons compels the witness to attend court or to produce documents as evidence, ensuring their availability for the trial.
What are the consequences for failing to attend court as required after being summoned?
A person who fails to attend court after being duly summoned and without a just excuse is guilty of contempt of court. This applies across both magistrates’ courts and the Crown Court. The individual may be summarily punished as if having committed a contempt in the face of the court
