T12 Preliminary issues relating to witness Flashcards
Does a witness have to be competent, What does it mean for a witness to be competent?
S.53 of YJCA states that all persons are competent to give evidence
A witness is competent if they can lawfully give evidence.
What are the exception to when a witness is not competent to give evidence (Listed out in S.53(3) and (4) of YJCEA
There are two categories of incompetent witnesses:
1) Those who cannot understand questions or give understandable answers (e.g., very young children, persons with severe mental disabilities).
2) Defendants, who cannot testify for the prosecution but may testify for their own defence.
How do child witnesses give evidence in criminal trials?
Children can give evidence at any age if they can understand and respond to questions.
In most cases, they are video interviewed in a child-friendly setting by a trained officer.
The recorded interview serves as their statement. If the case goes to trial, the child:
- Does not appear in court but sits in a separate room.
- Has their video interview played as their examination-in-chief.
- Is cross-examined via live TV link to avoid direct courtroom exposure.
How does the court assess a child’s competence to give evidence?
The court first reviews the child’s video interview. If concerns arise about intelligibility, the judge may ask further questions.
If the child cannot give intelligible evidence, they will be deemed “incompetent and cannot testify”
What’s another issue when children giving being a witnes
It concerns the administration of oath
What are the rules for children giving sworn evidence?
Under s55(2) YJCEA, a child under 14 cannot give sworn evidence but may testify unsworn if they can give “intelligible evidence”
A child 14 or older can only be sworn if they understand:
1) The solemnity of the occasion.
2) Their responsibility to tell the truth.
Competency is usually decided before the trial (s54 YJCEA), but it can be reassessed later.
The party calling the witness must prove competence on the balance of probabilities (s54(2)).
Can a defendant give evidence in court on behalf of the prosecution
A defendant cannot give evidence for the prosecution but can testify for their own defence (s1 Criminal Evidence Act 1898) and cannot be compelled to do so.
(RMBR prosecution cannot compel witness to give evidence on their behalf)
If multiple defendants testify, their evidence is treated like any other evidence. If one implicates a co-defendant, the jury can consider it when determining guilt.
Compellability
- If witness is competnent to give evidence the usual rule is that he will also be COMPELLABLE
Compellable means that the witness can be required by judicial process to come to court
however there are some exception to this rule.
How can a witness be compelled to attend court?
A witness summons can be issued to compel a competent and compellable witness who refuses to attend. The governing laws are:
Crown Court – s2 CPA 1965 Magistrates' Court – s97 MCA 1980
The grounds for granting a WS are basically the same under both the acts
What must be proven to issue a witness summons?
The applying party must show that the witness can:
-> Provide material evidence, or
->Produce a relevant document or item, and
-> That issuing the summons is in the interests of justice.
Applications for WS can be made in writing or orally to the court
When should a witness summons be applied for?
If a witness is known to be unwilling before trial, the application should “be made in writing with enough time for the summons to be issued and served”.
If the witness must produce a document or exhibit, the application must be in writing.
If the witness is reluctant to come on the trial date, the application can be made then.
What happens if a witness refuses to attend court?
If a witness refuses to attend, an oral application for a witness summons can be made in court.
Once issued, the police (for prosecution witnesses) or defence solicitor (for defence witnesses) must serve it and provide expenses.
If the witness still refuses to attend after proper service, a warrant for their arrest can be issued.
(Go for witness summons-> refuse still-> a warrant can be issued for witness arrest)
Civil partner of the D is a competent witness rmbr, BUT REMEMBER IS NOT ALWAYS COMPELLABLE
When is a spouse or civil partner compellable as a witness?
Under s80(1) PACE, a spouse or civil partner is compellable to give evidence for their married partner’s defence in all cases.
For a co-defendant, they are only compellable if the charge falls under s80(3) PACE (s80(2A)(a)).
When is a spouse or civil partner COMPELLABLE to give evidence on behalf of THE PROSECUTION
Under s80(2A)(b) PACE, a spouse or civil partner is only compellable for the prosecution if the charge falls under s80(3), which includes:
1) Offences involving assault, injury, or threats against them or a child under 16.
2) Sexual offences against a child under 16.
3)Attempting, conspiring, or aiding any of the above offences.
How is it decided if a spouse or civil partner is compellable?
Before compelling a spouse or civil partner, s80 PACE must be checked to see if they are “legally compellable”.
This is most relevant in domestic violence and family sexual offence cases, ensuring they testify if it serves the interests of justice.
