W8 witnesses, opinion evidence/experts and privilege ✅

Question 1

What are preliminary issues relating to witnesses?

Answer 1

1. competence
2. compellability
3. opinon and expert evidence
4. privilege

Question 2

i.e. of a witness

What does competence mean?

Answer 2

• means whether the witness is permitted to give evidence to the court.
• in more formal language - a witness is competent if a person ‘may lawfully be called to testify’.
• generally speaking, anyone is a competent witness.

a few exceptions:
* there are a few exceptions, i.e. a few instances where a witness, even if willing, is simply not competent to give evidence for one party or another.

Question 3

When is a witness not competent to give evidence?

Answer 3

**1. The defendant/accused **
* D(s) cannot be prosecution witness(es).
* the proceedings must be completed against any one of them so that they are no longer Ds in case before they can be witnesses.
* Ds can give evidence on their own behalf, and can give evidence on behalf of co-defendant.

2. Children and persons w a disorder or disability
* age is NOT the determining factor of whether a child is competent.
* the only test is:
1. whether the child understands the questions, and
2. can give comprehensive answers

the same test applies for those w a disorder or disability.

3. Spouse/civil partner
* not competent in any case

4. Deaf or speech impaired witness
* competent so long as they understand the solemnity of taking oath or affirmation.
* can give evidence using interpreters, handwriting, sign language or any combination of these.

Question 4

What does compellability mean?

Answer 4

• some witnesses cannot be compelled to give evidence.
• most can, but some can’t.

Question 5

Who can/cannot be compelled to give evidence?

Answer 5

**1. the defendant ** (no)
* not competent for the prosecution so clearly cannot be compelled by the prosecution.
* D can give evidence on D’s own behalf but cannot be compelled to do so.

2. children + persons with a disability (yes)
   * if competent, these witnesses are compellable.
3. spouses/civil partners (no but yes if domestic violence or abusing children)
   * can be compelled (for defence).
   * only for prosecution if their partner is charged w s.80 PACE:

• assault on, or injury, or threat of injury to that spouse or partner (i.e. domestic violence)
• assault on, or injury, or threat of injury, to a child under 16
• a sexual offence against someone under 16
• attempts, conspiring, aiding and abetting any of the above

If they refuse to attend, they can be arrested, and if they refuse to answer Qs they can be held in contempt.

Question 6

What about opinion and expert evidence?

Answer 6

• generally, witnesses are for issues of fact and it is for jury to determine what inferences they draw and what conclusions.

Question 7

When will the court recieve opinions from witnesses?

Answer 7

1. the opinion is given in relation commonplace occurances about which the witness’ perception appears relevant and proper; or
2. witness is an expert

Question 8

when is opinion evidence used?

Answer 8

e.g. admissible perception of non-expert is an opinion as to drunkeness.

remains best practice to focus Qs in examination of observable facts (i.e. dilated pupils + slurred speech) rather than only eliciting the opinion.

other examples of opinion:
- identification (i.e. clothing worn)
- recognition of voice + handwriting

Question 9

what is expert evidence?

Answer 9

• issues that require more expertise include techincal matters of science, medicine, pyschology etc.
• occasionally the law specifies what level of expertise would be required before the court would recieve such an opinion.
• experts should be neutral + objective - independent consultants.
• where there are multiple experts, they are encouraged to meet to establish matters they agree and disagree and to narrow the issues between them + explain why the disagree on those reasons.

Question 10

what are the 2 main forms of privilege?

Answer 10

1. against self-incrimination; and
2. legal professional privilege which can be sub-divided into:
   - litigation privilege
   - advice privilege

Question 11

Privilege against self-incrimination

Answer 11

• general common law principle - court will uphold a witness’ right (witnesses other than D) to refuse to answer Q or disclose documents if to do so would make that person liable to incriminate themselves.
• its important to note that the person cannot claim privilege to protect another person, even a spouse, and cannot be invoked in order to protect against possible liability in a civil court.

A defendant does not have the right to refuse to answer Qs. Adverse inference can be drawn.

If a person claims privilege against self-incrimination to protect information, the person cannot prevent the same info being acquired by other routes.
privilege only extends to that person, and any investigatory body is entitled to consider how else to access the info.

Question 12

legal professional privilege

Answer 12

= when client communicates with a lawyer.

there are two sub-divisions at play, and are whether:

i. the purpose of the communication with a lawyer is to advance or act in process of litigation - litigation privilege; or

ii. to obtain advice more generally - advice privilege