Unit 9 - Prelim issues relating to witnesses (unit 12 ) Flashcards by Zohalle Ahmad

Meaning of Competence

A witness is competent if the witness may lawfully be called to testify

means whether the witness is permitted to give evidence

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Meaning of Compellability

A witness is compellable if, being competent, the witness may lawfully be compelled by the court to testify.

whether the witness can be compelled to give evidence

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General Rule as to Competence

The general rule as to competence is that all persons are, whatever their age, competent to give evidence

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Two exceptions to the General Rule as to Competence

1) a person is not competent if the person is

a) unable to understand questions put to him or her as a witness and

b) to give answers to them which can be understood

The types of witness who, under this test, may be incompetent are children and persons with a disorder or disability of the mind

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Youth Justice and Criminal Evidence Act 1999, s. 53

[THE LAW]

(1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.

(2) Subsection (1) has effect subject to subsections (3) and (4).

(3) A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to—

(a) understand questions put to him as a witness, and
(b) give answers to them which can be understood.

(4) A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings).

(5) In subsection (4) the reference to a person charged in criminal proceedings does not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason).

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General Rule as to Compellability

All competent witnesses are compellable

Exceptions to this limb:
(1) the accused;
(2) spouse/civil partner
(3) in the case of the Sovereign, heads of other sovereign States and diplomats
(4) The fourth relates to bankers

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D is NOT competent to be a prosecution witness.

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Where multiple Ds (co-accused) =

none are competent as prosecution witness.

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A co-accused may not give evidence for the
prosecution UNLESS …

he ceases to be a co-accused:

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The proceedings must be completed against
any one of them (so that they are no longer
liable to be convicted in the proceedings)) to
become competent. E.g

(a) if the co-accused plead guilty; or

(b) is tried separately; or

(d) prosecution drops case (nolle prosequi)

= then that co-defendant becomes competent as a prosecution witness regarding the other defendant.

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Are accused competent witness for the defence?

YES!

‘At every stage in criminal proceedings’

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‘At every stage in criminal proceedings’ = allows the accused to give evidence not only in the trial itself, but also after conviction, in mitigation of sentence

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Can accused give evidence in the voir dire?

There is some old authority to the effect that the accused is not entitled as of right to give evidence on the voir dire

but that the court may in its discretion allow the accused to give evidence at this stage if the justice of the case makes this desirable

CURRENT PRACTICE: it is for the accused to elect whether to give evidence on the voir dire

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Is D a compellable witness for the D?

YES

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Police and Criminal Evidence Act 1984, s. 80
[THE LAW]

Police and Criminal Evidence Act 1984, s. 80

† (2)†††† In any proceedings the spouse or civil partner of a person charged in the proceedings shall, subject to subsection (4) below, be compellable to give evidence on behalf of that person.
† (2A)†††† In any proceedings the spouse or civil partner of a person charged in the proceedings shall, subject to subsection (4) below, be compellable—
†
† (a)†††† to give evidence on behalf of any other person charged in the proceedings but only in respect of any specified offence with which that other person is charged; or
† (b)†††† to give evidence for the prosecution but only in respect of any specified offence with which any person is charged in the proceedings.

† (3)†††† In relation to the spouse or civil partner of a person charged in any proceedings, an offence is a specified offence for the purposes of subsection (2A) above if—
†
† (a)†††† it involves an assault on, or injury or a threat of injury to, the spouse or civil partner or a person who was at the material time under the age of 16;
† (b)†††† it is a sexual offence alleged to have been committed in respect of a person who was at the material time under that age; or
† (c)†††† it consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within paragraph (a) or (b) above. (4) No person who is charged in any proceedings shall be compellable by virtue of subsection (2)

† (4)†††† No person who is charged in any proceedings shall be compellable by virtue of subsection (2) or (2A) above to give evidence in the proceedings.
† (4A)†††† References in this section to a person charged in any proceedings do not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason).
† (5)†††† In any proceedings a person who has been but is no longer married to the accused shall be compellable to give evidence as if that person and the accused had never been married.
† (5A)†††† In any proceedings a person who has been but is no longer the civil partner of the accused shall be compellable to give evidence as if that person and the accused had never been civil partners.
† (6)†††† Where in any proceedings the age of any person at any time is material for the purposes of subsection (3) above, his age at the material time shall for the purposes of that provision be deemed to be or to have been that which appears to the court to be or to have been his age at that time.
† (7)†††† In subsection (3)(b) above ‘sexual offence’ means an offence under the Protection of Children Act 1978 or Part 1 of the Sexual Offences Act 2003, or an offence under section 2 of the Modern Slavery Act 2015 (human trafficking) committed with a view to exploitation that consists of or includes behaviour within section 3(3) of that Act (sexual exploitation).

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The spouse or civil partner of an accused is competent to give evidence for the prosecution

UNLESS:

‘a person charged’ in the criminal proceedings (s. 53(4) and (5)

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The spouse or civil partner of an accused is compellable to give evidence for the prosecution

UNLESS:

is a ‘specified offence’

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definition of ‘spouse’ and ‘civil partner’

persons whose marriage or civil partnership (wherever celebrated) would be recognised by English law

(If marriage is void in English law because of bigamy, would not count; does not cover an unmarried cohabitee of the accused).

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The spouse or civil partner of an accused is competent to give evidence for the accused and shall be compellable to give evidence for the accused

UNLESS

also charged in the proceedings

Children/Unsound Mind

All persons are competent EXCEPT IF UNABLE TO:

(a) understand questions put to him or her as a witness and

(b) give answers to them which can be understood

an infant who can only communicate in baby language with its mother: competent or not?

a child who can speak and understand basic English with strangers: competent or not?

YES

Guidance for: the Test for Competence for Children/Unsound Mind

(1) 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

(2) a person who has no recollection of an event may be a perfectly competent witness

(3) test depends on the individual witness or child is competent to give evidence in the particular trial - No presumptions/preconceptions.

(4) 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

(5) Remember that Questions come from both sides = if child is called as prosecution
witness, should have the ability to understand the questions put to him by the defence as well as the prosecution, and provide understandable answers to both.

Test for children/unsound mind = a witness may NOT be sworn UNLESS:

(1) has attained age of 14; AND

(2) ‘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’

[Child & Disabled persons Two Limb Test for Competence = intelligible testimony]

CHILDREN/UNSOUND MIND If the witness is able to give intelligible testimony, i.e. is able to understand questions put to him or her as a witness and give answers to them which can be understood =

the witness is presumed to have a sufficient appreciation of those matters UNLESS any party adduces evidence tending to show the contrary

CHILDREN/UNSOUND MIND If such evidence (that the witness is able to give evidence) = it is for the party seeking to have the witness sworn to satisfy the court that:

on a balance of probabilities, 1) that the witness has attained the age of 14 AND 2) has a sufficient appreciation of the matters in question

When court is considering if a witness may be sworn for the purpose of giving evidence on oath /determination of competence of witness, should this be done with the jury?

NO! IN THE ABSENCE OF THE JURY

Youth Justice and Criminal Evidence Act 1999, s. 55 [THE LAW]

(1) Any question whether a witness in criminal proceedings may be sworn for the purpose of giving evidence on oath, whether raised— (a) by a party to the proceedings, or (b) by the court of its own motion, shall be determined by the court in accordance with this section. (2) The witness may not be sworn for that purpose unless— (a) he has attained the age of 14, and (b) he has a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath. (3) The witness shall, if he is able to give intelligible testimony, be presumed to have a sufficient appreciation of those matters if no evidence tending to show the contrary is adduced (by any party). (4) If any such evidence is adduced, it is for the party seeking to have the witness sworn to satisfy the court that, on a balance of probabilities, the witness has attained the age of 14 and has a sufficient appreciation of the matters mentioned in subsection (2)(b). (5) Any proceedings held for the determination of the question mentioned in subsection (1) shall take place in the absence of the jury (if there is one). (6) Expert evidence may be received on the question. (7) Any questioning of the witness (where the court considers that necessary) shall be conducted by the court in the presence of the parties. (8) For the purposes of this section a person is able to give intelligible testimony if he is able to— (a) understand questions put to him as a witness, and (b) give answers to them which can be understood.

Oaths and affirmation: General Rule and Exceptions

Oaths and affirmation: General Rule

all witnesses must, before giving evidence, either: a) Take an oath; OR b) Make an Affirmation

Oaths: A person who is competent to give evidence but who is not permitted to be sworn, their evidence will be=

evidence will be UNSWORN so to clarify = The evidence of a person who is competent to give evidence; but who is not permitted to be sworn (re children/unsound mind) = shall be given unsworn

at common law a witness called merely for the purpose of producing a document: do they need to be sworn?

NO If not sworn = unable to cross them

Where a video recording of an interview with a child is admitted under the YJCEA 1999, s. 27, and the child is then aged 14 or over: should oath be taken?

Yes - before they cross-exam

Unsworn evidence doesn’t not render a conviction/verdict/finding to be unsafe for purposes of the ground of appeal in Crim Appeal Act 68

if someone gave unsworn evidence when it should have been sworn = that itself will not render a conviction unsafe

Issue of a witness summons

The attendance of witnesses for purposes of criminal proceedings in MC maybe secured by the issue of a summons or warrant under the MCA 1980, s. 97

Issue of a witness summons It provides that, where a magistrate is satisfied that: [THE LAW]

(a) any person within the jurisdiction is likely to be able to give material evidence, or produce any document or thing likely to be material evidence, for purposes of a summary trial, and (b) it is in the interests of justice to issue a summons to secure the attendance of that person to give evidence or produce the document or thing, the magistrate may issue a summons requiring the person to attend before the court on the date specified in the summons (s. 97(1)). A similar power is given to justices' clerks by the Justices' Clerks Rules 2005 (SI 2005 No. 545), sch. 1, para. 2. If a magistrate (but not a clerk) is also satisfied by evidence on oath that it is probable that a summons issued under s. 97(1) would not procure the witness's attendance, an arrest warrant may be issued instead (s. 97(2)).

Arrest warrant Should a person summoned under s. 97(1) fail to attend as required, the court may issue an arrest warrant (s. 97(3)). It must, however, be satisfied that:

(a) the witness is indeed likely to be able to give material evidence or produce a material document or thing; (b) the witness has been duly served with the summons and been paid or tendered a reasonable sum for costs and expenses; and (c) there is no just excuse for the failure to attend.

Requirement (a) must be established by evidence on oath; requirement (b) may be established either by evidence on oath or in such other manner as is prescribed. A witness summons may be served in one of the following ways:

(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)).

a person who, without just excuse, disobeys a witness summons is guilty of =

contempt of court applies in the CC and MC

Securing the Attendance of Witnesses Who is it the responsibility of to secure the attendance of prosecution witnesses?

most cases = police

Securing the Attendance of Witnesses Who is it the responsibility of to secure the attendance of defence witnesses?

defence solicitor

Securing the Attendance of Witnesses prosecution witness = responsibility of police defence witness = responsibility of defence solicitor

Securing the Attendance of Witnesses The steps taken will depend on:

A) the sensitivity of the witness and whether there is a fixed date for trial; OR C) whether the case is in a warned list in which case an accused (for example, would need to keep in daily contact with solicitors during the period in which the case might be called on)

Compelling Attendance Where P and D wishes to secure attendance of witness but are not satisfied that the witness will attend voluntarily, they can apply for:

witness summons - The same provisions are used to secure the production of documents, rather than the attendance of a witness, as evidence (EG disclosure of 3rd party)

Punishment for Failure to Attend A person who 'without just excuse' disobeys a witness order or summons requiring the person to attend court is guilty of:

contempt of the court that the person fails to attend - may be summarily punished as if having committed a contempt in the court's face

A person who 'without just excuse' disobeys a witness order or summons requiring the person to attend court is guilty of contempt of the court that the person fails to attend: Maximum punishment

three months' imprisonment disobedience of a summons which represents the contempt, and there is no requirement for an arrest warrant to have been issued in addition.