4.7 Introduction to witnesses

Question 1

What is the test to establish whether a witness is competent?

Answer 1

Section 53(3) Youth Justice and Criminal Evidence Act 1999
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.

Question 2

Some witnesses can give unsworn evidence because they cannot be sworn under oath. Which witnesses are these?

Answer 2

Section 55(2) Youth Justice and Criminal Evidence Act 1999
The witness may not be sworn for that purpose unless—
(a)
he has attained the age of 14, and
(b)
he 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.

BPP Adapt: those of unsound mind also. But, as always, no fucking citation.

Question 3

Who has the burden of proving that a witness is competent?

Answer 3

Section 54(2) Youth Justice and Criminal Evidence Act 1999
It is for the party calling the witness to satisfy the court that, on a balance of probabilities, the witness is competent to give evidence in the proceedings.

Question 4

Are children compellable witnesses?

Answer 4

Yes if they can understand questions and give comprehensible answers, i.e., they are competent.

Question 5

Can spouses be compelled to give evidence against one another?

Answer 5

No unless the defendant is charged with violence or sex offences.

Question 6

Are deaf and speech impaired persons competent witnesses?

Answer 6

Yes if they can understand the solemnity of taking the oath

Question 7

When can a witness give her opinion as evidence?

Answer 7

1. With regard to commonplace occurrences about which her perception appears relevant and proper; or
2. If the witness is an expert.

Question 8

What are the two main types of privilege?

Answer 8

1. Against self-incrimination; and

2. Legal professional privilege.

Question 9

What are the two types of legal professional privilege?

Answer 9

1. Advice privilege

2. Litigation privilege

Question 10

Who enjoys privilege against self incrimination?

Answer 10

Witnesses but not defendants

Question 11

What is the difference between advice and litigation privilege?

Answer 11

Legal correspondence where no litigation is ongoing or contemplated will generally not be privileged if it is with third parties.