Competence / Compellability

Question 1

What does it mean for a witness to be competent?

Answer 1

Competent = a person may lawfully be called to testify

Question 2

What is the general rule on competent witnesses?

Answer 2

Anyone is a competent witness

Question 3

Who is not a competent witness for the prosecution?

Answer 3

The defendant/accused

Question 4

When is a defendant is a competent witness?

Answer 4

Defendants are competent to give evidence on their own behalf and on behalf of a co-defendant

But not for the prosecution

Question 5

When are children and persons with a disorder/disability not competent?

Answer 5

Test is:
1. Whether the child / person with disorder can understand questions
2. Whether child / person with disorder can give comprehensible answers

Question 6

Who can be compelled to give evidence?

Answer 6

Most witnesses can be compelled

If competent = compellable

Question 7

What witnesses cannot be compelled to give evidence?

Answer 7

The defendant is not competent for the prosecution so cannot be compelled by the prosecution

Question 8

What are the limited circumstances in which a spouse/civil partner can be compelled to give evidence for their spouse/civil partner for the prosecution?

Answer 8

ONLY for the prosecution if the offence charged against their partners is:
a) assault on / injury / threat to that spouse
b) assault / injury to a child
c) sexual offence against a minor
d) attempts, conspiring, aiding or abetting any of the above

Question 9

Is a defendant competent and compellable?

Answer 9

Not for the prosecution

• competent on D’s own behalf or for co-defendant
• but cannot be compelled to give evidence on D’s own behalf

Question 10

Is a spouse a competent witness?

Answer 10

Yes for any party

• but can only be compelled for prosecution in specified cases of domestic violence/child abuse

Question 11

Can a spouse be compelled to give evidence for their spouse?

Answer 11

Yes, can be compelled to give evidence for them
- but only compellable for prosecution in limited circumstances

Question 12

Is a deaf or speech impaired competent and compellable?

Answer 12

Yes, so long as they understand the solemnity of taking the oath or affirmation

Question 13

Does a co-defendant who pleads guilty become competent and compellable?

Answer 13

After a co-defendant is no longer a defendant, because they plead guilty for example, they then are competent and compellable as a witness for CPS

• once they are no longer a co-defendant, they would also be competent and compellable by the defence as an ordinary witness

Question 14

What is the likely position for a child being called to give evidence?

Answer 14

Starting point is that a child is competent and compellable

But it is likely that special measures will apply

Question 15

What is the potential consequence if a defendant does not give evidence on their own behalf?

Answer 15

Defendant is competent and compellable to give evidence on their own behalf, but cannot be compelled to do so
- Cannot be compelled - but gives potential for adverse inference to be drawn if D does not give evidence on own behalf