Topic 9- Preliminary Issues Relating to Witnesses Flashcards
How is a witness determined to be competent?
If the witness may lawfully be called to testify
How is a witness determined to be compellable?
If, being competent, the witness may lawfully be compelled by the court to testify
What is the general rule as to competence with witnesses?
All persons, whatever their age, are competent to give evidence
However, it all depends on if they are compellable witnesses
What are the two exceptions for the general rule of competence?
If they do not understand questions to put to him, or to give answers which can be understood (eg, children or disabled)
An accused is not competent to give evidence for the prosecution
What is the general rule for compellability of witnesses
All competent witnesses are compellable
What are the four exceptions for the general rule of compellability?
The accused is not a compellable witness for the defence
An accused’s spouse is not compellable (there are exceptions)
Heads of State and Diplomats
Bankers
Can an accused give evidence for the prosecution?
They cannot as they are not a competent witness
When may a co-accused give evidence for the prosecution?
If they cease to be a co-accused
Is an accused a compellable witness for the defence?
No, they can only be called as a witness if the accused makes an application
Can the spouse of the accused give evidence?
They are not a compellable witness
What are the exceptions as to the compellability of an accused’s spouse?
If it involves an assault or threat of injury to the spouse, or a person who was under 16
If it involves a sexual offence to a person who was under 16
If it involves the conspiring to commit, or aiding, etc, for the above crimes
Can a spouse of an accused give evidence FOR THE ACCUSED
They are competent and shall be compellable, unless also charged in proceedings
Obviously they are not compellable to give evidence in other circumstances
What is the test for determining competence of a witness (eg, a child)?
If they can speak and understand basic English with strangers
Can a person who has no recollection of an event be a competent witness?
Yes they can
What are the requirements for a witness to be sworn in?
They must be over 14
and
have sufficient appreciation of the solemnity of the occasion and of the responsibility to tell the truth
What must a witness do before giving evidence?
They must take an oath
What can be used to secure the attendance of witnesses in court?
Issuing a summons or warrant
What are the circumstances for a witness summons be issued?
If the person is likely to be able to give material evidence
If it is in the interests of justice to issue a summons to secure the attendance
If a magistrate is satisfied that a summons would not procure a witness, what can they do?
They may issue an arrest warrant for their attendance
What happens if a witness fails to attend court via a witness summons?
The court can issue an arrest warrant, however they must be satisfied that:
The witness is able to give the evidence
The witness has been duly served with the summons
There was no just excuse for failing to attend
What are the requirements for the court to issue an arrest warrant if a witness does not attend court?
The witness is able to give the evidence
The witness has been duly served with the summons and been given costs and expenses
There was no just excuse for failing to attend
How is a witness summons served?
By handing it to the individual
By leaving it or sending it via 1st class post to their address
Whose responsibility is it to secure the attendance of a prosecution witness?
The police and the defence solicitor
When will a witness summons be ordered?
If a witness may not attend voluntarily
