Unit 12 Preliminary Issues Relating to Witnesses Flashcards
Who is competent to testify? Who is not?
General rule: all persons are, whatever their age, competent to give evidence
Exceptions:
- A person is not competent if the person is unable to understand questions put to him or her as a witness and to give answers to them which can be understood. E.g. some children and persons with a disorder or disability of the mind.
- An accused is not competent to give evidence for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings), unless A is no longer liable for conviction (i.e. pleaded guilty, acquitted, etc.)
Who can be compelled to testify?
General rule: all competent witnesses are compellable.
Exceptions:
- The accused is not a compellable witness for the defence, i.e. for him or herself or a co-accused
- An accused’s spouse or civil partner is, in the case of all but a number of specified offences, not compellable for either the prosecution or on behalf of a co-accused (this rules does NOT extend to divorced spouses or unmarried cohabitees)
- The third exception applies in the case of the Sovereign, heads of other sovereign States and diplomats.
- The fourth relates to bankers
My comment: the point here is that these people are allowed to testify, but they can’t be made to testify.
Can a co-accused give evidence for the prosecution?
A co-accused may only give evidence for the prosecution if he or she ceases to be a co-accused.
What “specified offences” make a spouse a compellable witness for the prosecution?
- domestic violence against spouse
- assault/injury/threat of injury against child U16
- sexual offence against child U16
- attempting/conspiring/aiding/abetting any of the above
N.B. if the spouse is a co-A then they are NOT compellable, even in these cases.
What are the principles in deciding whether a child is competent?
- In each case, the question under s. 53 is whether the individual witness or child is competent to give evidence in the particular trial. The question is entirely witness or child specific.
- There are no presumptions or preconceptions.
- The witness does not need to understand the special importance of telling the truth in court and does not need to understand every single question or give a readily understandable answer to every question. Dealing with it broadly and fairly, provided the witness can understand the questions and can also provide understandable answers, the witness is competent.
- Questions, of course, come from both sides. If the child is called as a witness by the prosecution, the child should have the ability to understand the questions put by the defence as well as the prosecution and to provide answers to them which are understandable.
- Section 53 requires not the exercise of a discretion, but the making of a judgment on whether the witness fulfils the statutory criteria.
- there is no requirement that the witness be aware of his or her status as a witness and that questions of credibility and reliability are not relevant to competence but go to the weight of the evidence and may be considered, if appropriate, on a submission of no case to answer.
Who has to swear an oath when giving evidence and who cannot swear?
General rule: all witnesses must take an oath when testifying
Exceptions (these people cannot be sworn):
- Children U14
- Persons w/o ‘sufficient appreciation of the solemnity of the occasion + the particular responsibility to tell the truth which is involved in taking an oath’
The other category of person who does not have to swear an oath is a witness called merely for the purpose of producing a document. The witness, if not sworn, is not liable to cross-examination. However, if the identity of the document is disputed, and must be established, this must be done by sworn evidence.
Describe how it is decided whether a witness has ‘sufficient appreciation’ to swear an oath in cases where this is raised as a potential issue.
- If the person is competent to give evidence, it is generally presumed that they do have sufficient appreciation - the side arguing that they do not, therefore, has to adduce evidence showing that they don’t. If they adduce sufficient evidence, the other side will then have to prove on balance of probabilities that the person meets the reqs for swearing an oath (i.e. at least 14 and sufficient appreciation)
- This question should be determined in the absence of the jury
- Expert evidence may be received on the Q
What is the consequence of evidence being giving orally but not on oath?
The witness cannot be cross-examined
What should happen where a video recording of an interview of a child is sought to be admitted where the child was under 14 at the time of being interviewed, but 14 or older at the time of trial?
The child must swear an oath or affirm at the start of cross-examination
What methods are open to a magistrates’ court to secure the attendance of a witness? How do they work?
2 methods:
- Witness summons
- This is basically just an order requiring the witness to attend on a specified date and at a specified time
- It must be served on the witness either by handing it to them personally or by sending it by first class post to an address where it is reasonable to believe that the witness will be
- It can be issued either by the magistrates or by the court’s legal adviser/clerk
- Consequence of disobedience w/o just excuse = contempt of court
- Arrest warrant
- Can only be issued by the magistrates (not the clerk)
- Available in 2 circumstances:
- (1) W failed to attend following a previous summons (despite being paid/offered a reasonable sum by way of expenses for attending), there is no just excuse for the failure to attend and the court has been satisfied by evidence on oath that the evidence which the witness is likely to able to give would be material - n.b. ICCA take the view that the mags will issue an arrest warrant in such a case (from multi-unit assessment)
- (2) Even though a summons has not yet been issued, the court is satisfied by evidence on oath that it is probable that a witness summons would not procure W’s attendance
Can Justice’s Clerks issue witness summons and arrest warrants?
Only summons, not arrest warrants
Whose responsibility is it to secure the attendance of witnesses in a trial on indictment?
Generally:
- Police to secure attendance of P witnesses
- D solicitor to secure attendance of D witnesses
Can P/D compel a witness’ attendance in a trial on indictment?
Yes - by applying for a witness summons (same as in mags)
In what 2 ways may a witness summons be served?
(a) by handing it to individual (r. 4.3(1)(a));
(b) by leaving it at, or sending it by first class post to, an address where it is reasonable to believe that the individual will receive it (r. 4.4(1) and (2)(a)).
