COMPETENCE & COMPELLABILITY Flashcards
What is the general rule of witness competence?
Any person is a competent witness and is capable of giving evidence
All competent witnesses may be compelled by the Court to testify
What is the definition of competency?
A witness is competent if he or she can lawfully be called to give evidence.
Section 53(1) of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) : “At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence”.
What are the exceptions to the general rule of witness competency?
(1) A person is not competent they are unable to understand questions put to them as a witness and give answers to them which can be understood - Section 53(3) of the YJCEA 1999
(2) A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution - Section 53 (4) of the YJCEA 1999 A co-accused can only give evidence for the prosecution once he or she ceases to be a co-accused (for example, following a guilty plea).
How competence is determined?
At a trial, the judge or the magistrates will decide if a witness is competent.
In the case of R v. Watts [2010], it was held by the Court of Appeal that the competency test is satisfied if the witness is able to understand the question put to him (or her) and give answers to them which can be understood.
Furthermore, those who are competent to give evidence should be assisted to do so, for example, with the assistance of intermediaries - a Registered Intermediary appointed under Section 29 of the YJCEA 1999.
What are the procedures of determining the competency of a witness?
Under s54 of the YJCEA 1999:
- The competence of a witness can be raised by a party to the proceedings or by the Court of its own motion;
- The party calling the witness must satisfy the court on the balance of probabilities that the witness is competent;
- The Court must treat the witness as having the benefit of any special measures directions which the Court has given or proposes to give in relation to the witness;
- The determination of competence must be in the absence of the jury;
- Expert evidence may be given;
- Any questioning of the witness will be conducted by the Court in the presence of the parties.
When should the competency of a witness be detemined?
Questions of competency must be decided before the witness is sworn or starts to give evidence and ideally prior to the start of the trial.
In the case of a prosecution witness, it was held in the case of Yacoob (1981) 72 Cr App R 313 that the question should be raised and decided at the beginning of the trial.
What is the definition of compellability?
A witness is compellable if he or she may lawfully be required to give evidence.
Witness summons
Prosecutors are reminded that where they are not satisfied that the witness will attend court voluntarily; they can apply for a witness summons. A witness summons can either require a person to give evidence or require a person to produce documents needed as evidence.
The procedure is set out in Sections 2 to 3 of the Criminal Procedure (Attendance of Witnesses) Act 1965. A person, who disobeys a witness order or summons requiring him or her to attend Court, is guilty of contempt of the court if he or she fails to attend without just cause.
Are children competent and compellable witnesses?
Children of any age can be called to give evidence; their competence depends upon their understanding, not their age.
As far as competency is concerned, the same test is applied to child witnesses as for adult witnesses - R v B [2010]
Can children witnesses give sworn evidence?
Section 55 of the YJCEA 1999 provides that the witness cannot be sworn for the purposes of giving evidence on oath unless the witness has attained the age of 14 and 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.
Therefore, children under the age of 14 should give unsworn evidence and this shall be received in evidence by the Court: see Section 56 of the YJCEA 1999
Are spouses or civil partners competent and compellable?
Section 80 of the Police and Criminal Evidence Act 1984 (PACE) governs the competence and compellability of spouses and civil partners in criminal proceedings.
Spouses or civil partners of a person charged in proceedings are generally competent to give evidence for the prosecution.
The only exception is if the spouse or civil partner is jointly charged.
When can the prosecution compel a spouse or civil partner to give evidence for the prosecution in a case?
- An allegation of an assault on, or injury or a threat of injury to the spouse or civil partner;
- An allegation of an assault on, or injury or a threat of injury to a person who was at the material time under the age of sixteen years;
- An alleged sexual offence against a victim who was at the material time under the age of sixteen years;
- Attempting, conspiring or aiding and abetting, counselling and procuring to commit the offences in the categories above
