SA12/13 Witness Handling

Question 1

What does s139 CJA 2003 relate to?

Answer 1

Use of documents to refresh memory.

Question 2

What is the general rule regarding the competence and compellability of witnesses?

Answer 2

Ss53(1) YJCEA 1999: ‘At every stage in criminal proceedings all person are (whatever their age) competent to give evidence’.

All competent witnesses are compellable.

Question 3

What are the two exceptions to the general rule regarding competency?

Answer 3

a) A person is not competent if it appears to the court that he is not able to understand qs put to him as a witness and give intelligible answers to those questions.
b) An accused is not a competent witness for the prosecution.

Question 4

How does a court decide a child’s competence?

Answer 4

Cannot decide on age alone. Is specific to the individual.

• They do not need to understand every single question or give an answer that can be readily understood to every single q put to them to be considered competent.
• Do not need to understand the special importance of telling the truth in court.
• Court needs to deal with matter broadly and fairly.

Question 4

When should the issue of a witnesses competence be determined?

Answer 4

Before the witness is sworn.

Question 5

Once an issue relating to a witnesses competence is raised/becomes apparent to the judge, what is left to the judge to decide?

Answer 5

The judge is bound to investigate and must make a judgment as to whether the statutory test for competence is met.

NOT an exercise of judicial discretion.

Question 6

Who bears the burden of showing a witness is competent?

What is the standard?

Answer 6

The party calling the witness.

Balance of probabilities.

Question 7

In determining whether a witness can understand the qs put to them and give an intelligible answer, how must the court regard the witnesses?

Answer 7

As having the benefit of any special measures direction that the court has given/proposes to give.

Question 8

Who may the judge hear evidence from regarding the competency of the witnesses?

Answer 8

the parties, an expert.

Question 9

How should the judge determine the competency of a child in relation to the statutory test?

Answer 9

The judge should watch the child’s videotaped ABE interview and, if necessary, put questions to the witness.

Qs should take place in the presence of the parties.

Question 10

At what point can the prosecution call an accused person to give evidence against a co- accused?

Answer 10

Once they cease to be a ‘person charged in the criminal proceedings’.

Question 11

Is a spouse/civil partner of the accused compellable (where competent) for the Defence?

Answer 11

Yes – unless they are also charged in the same proceedings s80(2) and (4) PACE.

Question 12

Is a spouse/civil partner of the accused compellable (where competent) for the Prosecution?

Answer 12

Only in relation to a specified offence:

• an assault on, injury or threat of injury to, the spouse or civil partner
• an assault on, injury or threat of injury to, person under the age of 16
• a sexual offence committed in relation to a person under the age of 16 or
• an offence of attempting or conspiring to commit, or of aiding and abetting, counselling, or procuring or inciting the commission of any of the above offences.

Question 13

Who is usually responsible for securing the attendance of prosecution witnesses?

Answer 13

The police.

Question 14

Who is usually responsible for securing the attendance of defence witnesses?

Answer 14

The defence solicitors.

Question 15

Crown Court – when is an application for a witness summons likely to be made?

Answer 15

Where:
* A witness is likely to be able to give material evidence or produce a material exhibit
* But will not attend voluntarily
* And it is in the interests of justice to issue the summons.

Question 16

What is the consequence of disobeying a witness summons without just excuse?

Answer 16

Contempt of court.

Punishable summarily by up to 3 months in prison.

Question 17

Mags Court – when is an application for a witness summons likely to be made?

Answer 17

Where:
* A witness is likely to be able to give material evidence or produce a material exhibit for the purposes of a summary trial AND
* it is in the interests of justice to issue the summons.

Question 18

If a witness summons from the magistrates fails to secure attendance of witness, what must the mags be satisfied of to issue a warrant?

Answer 18

• (i) on oath that the person is indeed likely to be able to give material evidence/produce a material document or thing
• (ii) he has been served with the summons and been paid or tendered a reasonable sum for costs and expenses and
• (iii) satisfied that there is no just excuse for the failure to attend (s97(3)).

Question 19

Under what circumstances can a magistrate issue a warrant without having first issued a witness summons?

Answer 19

If, at the time the summons is sought, a magistrate is satisfied on oath that it is probable the summons would not secure the witness’s attendance, he may issue a warrant at that stage.

Question 20

Mags – what happens if a witness attends summary trial but refuses without just excuse to be sworn/give evidence/produce a document or object?

Answer 20

The court may commit him to custody for up to one month/impose a £2,500 fine.

As an inducement to cooperate, the custodial sentence will come to an end sooner if the witness does testify/produces the document or thing.

Question 21

Under which conditions may a witness be sworn?

Answer 21

MUST be >14.

Must have sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath – presumed to have this if they are able to give intelligible testimony (presumption will apply unless evidence to the contrary adduced by any party – in which case burden on party calling witness to show he does have the appreciation).

Question 22

What happens if a witness does not meet the conditions to be sworn?

Answer 22

Will give evidence unsworn.

Question 23

What special measures are available to an eligible witness?

Answer 23

a) Screening the witness;
b) Giving evidence via a live link;
c) Giving evidence in private;
d) The removal of wigs and gowns;
e) Admitting a video recording of an interview of the witness as that witness’s evidence- in-chief;
f) Admitting a video recording of the cross-examination and re-examination of the witness;
g) Examining the witness via an intermediary; and
h) The provision of appropriate aids to communication.

Question 24

Under what conditions is it permitted to admit a video recording of the XX and re-X?

Answer 24

Only in the Crown Court to certain types of vulnerable witnesses on the grounds of:
* Incapacity
* Being <18
* Complaints in respect of sexual offences/modern slavery offences.

Question 25

Who is automatically eligible for special measures?

Answer 25

(i) Child witnesses.
(ii) Witnesses presumed to be in fear.

Question 26

Are Defendants covered by the standard special measures provisions under the YJCEA 1999?

Answer 26

No.

Question 27

What is the ‘primary rule’ in relation to child witnesses?

Answer 27

XIC will be pre-recorded. Any further evidence via live-link.

Question 28

Which witnesses are automatically eligible for special measures on the grounds that they are ‘presumed to be in fear’?

Answer 28

Where they are complainant to:
a) A sexual offences case.
b) An offence under Modern Slavery Act.
c) Domestic Violence.

Question 29

If a witnessed ‘presumed to be in fear’ applies to pre-record their XIC, what power does the court have?

Answer 29

The court MUST make a direction for this special measure, unless satisfied that it wouldn’t maximise the quality of the complainant’s evidence/otherwise concludes that its admission is not in the interest of justice.

Question 30

Which category of witnesses are automatically eligible for special measures regarding ‘relevant offences’ (homicide offences, offences involving a knife/firearm).

Answer 30

Any witnesses giving evidence – not limited to complainant, applies to police as well as lay witnesses.

Presumed to be in fear about testifying.

Question 31

Where a witness is not automatically eligible for special measures, when might they be eligible?

What should the court determine/take into account?

Answer 31

Affected by mental/physical disability or presumed to be in fear but not automatically eligible.

Whether the quality of the witnesses’ evidence would be diminished by the witness’s condition & will take into account the witness’s view on the matter.

• The nature and alleged circumstances of the offence;
• The age of the witness;
• So far as is relevant, the witness’s:
  o Social and cultural background and ethnic origins,
  o Their domestic and employment circumstances, and
  o Their religious beliefs or political opinions; and
• Any behaviour towards the witness on the part of:
  o The accused,
  o The accused’s family or associates,
  o Or any other person likely to be an accused or a witness.

Question 32

How does the court determine which special measures should be directed?

Answer 32

Which special measures will ‘maximise the quality of the evidence’.

Question 33

What are the expectations on the court to manage the communication difficulties for the Defendant?

Answer 33

Courts expected to manage communication difficulties for all witnesses, including D’s to ensure that proceedings are conducted fairly.

D’s, like other witnesses, should be enabled to give their best evidence.

Question 34

Under which circumstances can the accused give evidence via live link?

Answer 34

D’s access to live link in the CC/MC governed by s51 CJA 2003 as amended by PCSCA 2022. Applies to all witnesses, can be used to grant access for the entire trial (not just giving their evidence).

Court’s inherent jurisdiction does not extend to permit the accused to give evidence via live link in circumstances not covered by YJCEA 1999.

Court may not give live link directions unless it is satisfied that it is in the interests of justice to do so, and the parties have been given the opportunity to give representations (where D is <18, the relevant youth offending team must also be given the opportunity to give representations).

Question 35

When deciding whether to make a live link direction, what must the court consider?

Answer 35

All the circumstances of the case, in particular:
* The availability of the person whom the direction would relate.
* Any need for that person to attend in person.
* The views of that person.
* The suitability of the facilities at the place where that person would take part in the proceedings in accordance with the direction.
* Whether that person would be able to take part in the proceedings effectively if the person took part in accordance with the direction.
* The importance of the witness’s evidence to the proceedings & whether the direction might tend to inhibit any party to the proceedings from effectively testing the witness’ evidence.
* The arrangements that would/could be put in place for members of the public to see/hear the proceedings as conducted in accordance with the direction.

Question 36

What is the function of an intermediary?

Answer 36

To assess a witness’ communication needs/facilitate D’s effective participation at trial, particularly while giving evidence but also at any other time where otherwise D’s communication needs would impede participation.

Question 37

When MUST a court appoint an intermediary?

Answer 37

When they find D’s ability to participate is likely to be diminished because:
a) D <18
b) D has a mental disorder as defined by s1(2) MH Act 1983
c) D has a physical disability/disorder and the appointment of an intermediary is necessary for the purpose of facilitating effective participation.

Question 38

If an intermediary is appointed, under which conditions are they allowed to be discharged/varied?

Answer 38

Only if the court is satisfied that, since the order was made, D’s communication needs/other mental circumstances have changed materially and effective participation of D is achievable without the order.

Question 39

Where assessment of D concludes that an intermediary is not necessary, what can be imposed for the conduct of trial to enable D to understand and participate in proceedings?

Answer 39

Ground rules.

Question 40

Is the accused competent/compellable for:
a) The prosecution.
b) The defence.

Answer 40

a) Not competent (therefore not compellable).
b) Competent, not compellable.

Question 41

Is the spouse of an accused a competent/compellable witness for:
a) The prosecution.
b) The defence.

Answer 41

a) Competent (unless also charged in same proceedings) but not compellable, except for a specified offence.
b) Competent and compellable.

Question 42

Where a video recording of an interview with a child over 14 is admitted, when should the oath be administered?

Answer 42

Where a video of the XIC is admitted, the oath should be administered before the start of the XX.

Question 43

How may a witness summons be served?

Answer 43

a) By handing it to an individual.
b) By leaving it at/sending it first class to an address where it is reasonable to believe the individual will receive it.

Question 44

On what grounds may a witness be granted special measures under the YJCEA 1999?

Answer 44

a) Physical or mental impairment.
b) Fear or distress about testifying.
a. Automatic for COMPLAINANTS in sexual offences cases/modern slavery offences/Domestic abuse and ANY WITNESSES to relevant offences (homicide offences, firearm/knives/bladed articles).

Question 45

What happens once the court makes a declaration of eligibility for special measures?

Answer 45

Must identify which special measures to apply.

Question 46

Are Ds included in eligibility for special measures under s16 or 17 YJCEA 1999?

Answer 46

No.