Unit 9 - Prelim issues relating to witnesses (unit 12 )

Question 1

Meaning of Competence

Answer 1

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

means whether the witness is permitted to give evidence

Question 2

Meaning of Compellability

Answer 2

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

Question 3

General Rule as to Competence

Answer 3

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

Question 4

Two exceptions to the General Rule as to Competence

Answer 4

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

Question 5

Youth Justice and Criminal Evidence Act 1999, s. 53

[THE LAW]

Answer 5

(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).

Question 6

General Rule as to Compellability

Answer 6

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

Question 7

D is NOT competent to be a prosecution witness.

Question 8

Where multiple Ds (co-accused) =

Answer 8

none are competent as prosecution witness.

Question 9

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

Answer 9

he ceases to be a co-accused:

Question 10

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

Answer 10

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

(b) is tried separately; or

(c) acquitted; or

(d) prosecution drops case (nolle prosequi)

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

Question 11

Are accused competent witness for the defence?

Answer 11

YES!

‘At every stage in criminal proceedings’

Question 12

‘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

Question 13

Can accused give evidence in the voir dire?

Answer 13

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

Question 14

Is D a compellable witness for the D?

Answer 14

YES

Question 15

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

Answer 15

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).

Question 16

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

UNLESS:

Answer 16

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

Question 17

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

UNLESS:

Answer 17

is a ‘specified offence’

Question 18

definition of ‘spouse’ and ‘civil partner’

Answer 18

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).

Question 19

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

Answer 19

also charged in the proceedings

Question 20

Children/Unsound Mind

All persons are competent EXCEPT IF UNABLE TO:

Answer 20

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

(b) give answers to them which can be understood

Question 21

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

Answer 21

NO

Question 22

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

Answer 22

YES

Question 23

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

Answer 23

(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.

Question 24

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

Answer 24

(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]

Question 25

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 =

Answer 25

the witness is presumed to have a sufficient appreciation of those matters

UNLESS any party adduces evidence tending to show the contrary

Question 26

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:

Answer 26

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

Question 27

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?

Answer 27

NO!

IN THE ABSENCE OF THE JURY

Question 28

Youth Justice and Criminal Evidence Act 1999, s. 55

[THE LAW]

Answer 28

(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.

Question 29

Oaths and affirmation: General Rule and Exceptions

Question 30

Oaths and affirmation: General Rule

Answer 30

all witnesses must, before giving evidence, either:

a) Take an oath; OR
b) Make an Affirmation

Question 31

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

Answer 31

so to clarify

evidence will be UNSWORN

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

Question 32

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

Answer 32

NO

If not sworn = unable to cross them

Question 33

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?

Answer 33

Yes - before they cross-exam

Question 34

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

Answer 34

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

Question 35

Issue of a witness summons

Answer 35

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

Question 36

Issue of a witness summons

It provides that, where a magistrate is satisfied that:

[THE LAW]

Answer 36

(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)).

Question 37

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:

Answer 37

(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.

Question 38

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:

Answer 38

(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)).

Question 39

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

Answer 39

contempt of court

applies in the CC and MC

Question 40

Securing the Attendance of Witnesses

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

Answer 40

most cases = police

Question 41

Securing the Attendance of Witnesses

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

Answer 41

defence solicitor

Question 42

Securing the Attendance of Witnesses

prosecution witness = responsibility of police

defence witness = responsibility of defence solicitor

Question 43

Securing the Attendance of Witnesses

The steps taken will depend on:

Answer 43

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)

Question 44

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:

Answer 44

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)

Question 45

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:

Answer 45

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

Question 46

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

Answer 46

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.