Competence and Compellability of Witnesses in Civil and Criminal Cases Flashcards
Who is a witness?
individuals who come into court, take the oath and respond to questions put by counsel.
The topic of competence and compellability is concerned with which two related questions?
(1) Who is eligible to testify as a witness in a trial? and (2)In what circumstances can a witness be forced to testify?
what is the irish law assumption about competency?
Irish law operates on the pragmatic assumption that a person who is presented as a witness by a party to a proceeding is competent to testify. The other party to the proceeding may challenge the competency of the witness and, if they do, the party presenting the witness will have to satisfy the court that the witness is competent
what two factors make up competency?
capacity to understand the oath and capacity to deliver a rational account of events relevant to the proceedings
what does compellability refer to?
Compellability refers to the authority of the court to force a witness to testify. witnesses are generally assumed to be compellable.
how do courts compel testimony?
The courts have at their disposal various mechanisms to compel testimony, notably the issuing of subpoenas (orders to attend the court)and punishment for contempt of court.
what was decided in the case of DPP v Campion in relation to competency?
To be competent, must have the ability to understand questions and given intelligible answers on the matters. Then it is for the judge to decide
what was decided in the case of DPP v T?
Down syndrome witness testimony was allowed as there was nothing to suggest she didn’t understand the nature of the evidence she gave or that her recollection was untrustworthy.
when does an accused cease to be an accused?
- Guilty plea
- Indictment severed
- Acquittal
- Directed verdict
- Nolle prosequi
what are the rules of the competency of the accused?
- Competent but not compellable for the defence
- Competent but not compellable for the co-accused
- Never competent for prosecution due to privilege against self-incrimination.
- May testify if he ceases to be an accused against a former co-accused.
- no comment can be made about silence
what are the rules regarding the spouse of the accused?
- competent and compellable for the defence unless jointly charged - S.1 Criminal Justice Act 1924
- If jointly charged (co-accused)
(a) not competent for prosecution
(b) not compellable for defence or co-accused - Competent but not generally compellable for the prosecution or co-accused
- Exceptionally, compellable for the prosecution or a co-accused (ss 22 & @4 Criminal Evidence Act 1992)
what are the rules regarding former spouses?
Treated like a spouse where the offence was committed during the marriage Treated like an ordinary witness where the offence was committed before or after the marriage
explain Section 22 (limited compellability for the prosecution)
Section 22 (limited compellability for the prosecution)Various offences including:
• (a) Offence involving violence or threat to:• the spouse,• a child of the spouse or of the accused or • any person under 18 years
• (b) Sexual offence in relation to:• a child of the spouse or of the accused or• any person under 18 years
what may the judge do under S. 257 of Children Act 2001
Where a child gives evidence in criminal proceedings, the judge may exclude all non-essential persons from the courtroom
what are the rules surrounding children in a criminal case?
Children’s Act 1997
Section 28(1): a child under 14 years may give unsworn testimony
The test is whether the child is capable of giving an intelligible account of relevant events
Section 28 – applies in any civil proceedings
Offence to make false statement
Child’s unsworn evidence may corroborate other evidence
No cautionary warnings in civil proceedings
