Competence and compellability

Question 1

What is competence?

Answer 1

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)

Question 2

What is compellability?

Answer 2

Whether or not the witness can be forced to give evidence

Question 3

Is the defendant competent?

Answer 3

Always competent for the defence, but not compellable: s.1 Criminal Evidence Act 1898
Never competent for the prosecution - s.53(4) YJCEA 1999

Question 4

Are witnesses presumed competent?

Answer 4

Yes - all witnesses are now presumed competent, regardless of age - s.53(1) YJCEA 1999

Question 5

Walwork

Answer 5

Considered the idea of children, around 4-5 giving evidence as ludicrous

Question 6

Hayes

Answer 6

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

Question 7

What is the test for competence?

Answer 7

s.53(3) YCJEA 1999: whether the witnesses can understand the questions put to them, and give answers that can be understood

Question 8

R v C

Answer 8

The jury cannot speculate as to why a witness has not been called to give evidence

Question 9

Voir dire

Answer 9

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

Question 10

Are spouses presumed competent?

Answer 10

Yes - s.53

Question 11

Powell

Answer 11

Children - once competence is decided, it should still be kept under review throughout the trial

Question 12

Sed

Answer 12

Courts are not looking for 100% competence, as long as the witness is competent on the salient points

Question 13

McPherson

Answer 13

No requirement that the witness be aware that they should tell the truth

Question 14

Compellability

Answer 14

The ability to force witnesses to give evidence - all witnesses who are competent, are presumed compellable

Question 15

5 exceptions to compellability

Answer 15

public interest
legal professional privilege
self-incrimination
miscellaneous
spousal immunity

Question 16

spousal immunity

Answer 16

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

Question 17

s.80(2) PACE

Answer 17

spouses are now compellable to give evidence for the defendant

Question 18

s.80(2A)/3 PACE

Answer 18

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

Question 19

Pearce

Answer 19

Spousal immunity does not apply to common law partners

Question 20

Khan

Answer 20

must be a marriage recognised in English law

Question 21

Criticisms of spousal immunity

Answer 21

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

Question 22

C.A.Z

Answer 22

6 year old was competent to give evidence

Question 23

Dean

Answer 23

5 year old gave evidence via video-link

Question 24

Barker

Answer 24

4.5 year old gave evidence, which was received

Question 25

Competence in civil cases

Answer 25

Is competent to testify if he can take the oath/affirm - synonymous