Competence and compellability Flashcards
What is competence?
Whether or not a witness can give evidence, which is a question to be decided by the judge, with the burden of proof lying on the party calling the witness (on the balance of probabilities)
What is compellability?
Whether or not the witness can be forced to give evidence
Is the defendant competent?
Always competent for the defence, but not compellable: s.1 Criminal Evidence Act 1898
Never competent for the prosecution - s.53(4) YJCEA 1999
Are witnesses presumed competent?
Yes - all witnesses are now presumed competent, regardless of age - s.53(1) YJCEA 1999
Walwork
Considered the idea of children, around 4-5 giving evidence as ludicrous
Hayes
Competence of children: doubts as to whether children would understand the sacred nature of the oath, so the test is whether the child sufficiently understands that taking an oath involves telling the truth, but do not have to understand to divine sanction
What is the test for competence?
s.53(3) YCJEA 1999: whether the witnesses can understand the questions put to them, and give answers that can be understood
R v C
The jury cannot speculate as to why a witness has not been called to give evidence
Voir dire
If there is an issue as to competence, either party can call an issue - and the party calling the witness will have to prove to the judge, on the balance of probabilities, and in the absence of the jury, whether the witness is competent to give evidence
Are spouses presumed competent?
Yes - s.53
Powell
Children - once competence is decided, it should still be kept under review throughout the trial
Sed
Courts are not looking for 100% competence, as long as the witness is competent on the salient points
McPherson
No requirement that the witness be aware that they should tell the truth
Compellability
The ability to force witnesses to give evidence - all witnesses who are competent, are presumed compellable
5 exceptions to compellability
public interest legal professional privilege self-incrimination miscellaneous spousal immunity
spousal immunity
historically, spouses were considered to be incompetent as witnesses, due to the idea of preserving marital harmony (legal entity) - Hoskyn changes this, and the issue is now of compellability
s.80(2) PACE
spouses are now compellable to give evidence for the defendant
s.80(2A)/3 PACE
spouses are compellable to give evidence for the prosecution if it involves:
an assault/threat of injury on the spouse/on anyone under 16
sexual assault on anyone under 16
Pearce
Spousal immunity does not apply to common law partners
Khan
must be a marriage recognised in English law
Criticisms of spousal immunity
makes no reference to the seriousness of the offence/problems of marital rape/problems involving other family members/the changing nature of marriage/marriage just to get around as the court has no power to stop people getting married: R v Registrar of Births, Marriages and Deaths
C.A.Z
6 year old was competent to give evidence
Dean
5 year old gave evidence via video-link
Barker
4.5 year old gave evidence, which was received
Competence in civil cases
Is competent to testify if he can take the oath/affirm - synonymous
