4. Testimony - Eligibility and compellability Flashcards
When a witness eligible to give evidence?
Must Know
A witness is eligible if they are lawfully able to give evidence on behalf of both prosecution and defence.
When is a witness compellable to give evidence?
Must Know
A witness is compellable if they can be required to give
evidence against their will for both prosecution and defence. Once a witness has entered the witness box and been sworn, they are under a compellable obligation to answer all questions put to them.
Outline S71 EA06?
71 Eligibility and compellability generally
(1) In a civil or criminal proceeding, -
(a) any person is eligible to give evidence; and
(b) a person who is eligible to give evidence is compellable to give that evidence.
(2) Subsection (1) is subject to sections 72 to 75
What is S73 concerned with?
Section 73 is concerned with the compellability of defendants and associated defendants. It is not concerned with eligibility of those persons should they wish to testify voluntarily, although such evidence may attract a warning under s122 Evidence Act 2006 if it is from an associated defendant.
Section 73 therefore sets out a basic rule of non-compellability. A defendant facing a criminal trial is an eligible but not a compellable witness for either the prosecution or the defence in that proceeding, so a defendant may give evidence but does not have to.
Who is an associated defendant?
An “associated defendant” is someone against whom a prosecution has been initiated for an offence arising out of the “same events” as the offence for which the defendant is being tried (s73(4)(a)), or “that relates to, or is connected with,” the offence for which the defendant is being tried (s73(4)(b)).
